MONTPELIER — The construction project planned to revamp Exit 16 is postponed again, but not due to the coronavirus pandemic. On Thursday, the Vermont Supreme Court heard arguments from the Vt. Agency of Transportation (VTrans) and R.L. Vallee, owner of Maplefields gas station chain. The latter filed a motion regarding VTrans' acquisition of an easement over a communal driveway off Lower Mountain View Drive.
While Vallee argued that he has a right to intervene as a property owner, VTrans maintained that Vallee's dissension is between him and Lake Champlain Transportation Co. (LCT)—Vallee's landlord and owner of the driveway (colloquially called Lot 14)—who consented to the acquisition.
One question at the heart of the debate rests on the definition of "property owner," and whether it differs from "interested person," or "person interested in lands." As a property owner, Vallee would have a right to challenge the taking of land for the purpose of a public project like VTrans' Diverging Diamond (DDI) traffic plan for Exit 16. However, if Vallee is not considered a land owner in this case, then any claim he may have would be governed under his lease with LCT.
Vallee filed the motion against VTrans regarding Lot 14 last summer. At the same time, he and the owners of other local gas stations Wesco and Timberlake, among other appellants, were wrapping up cases that called VTrans' stormwater and Act 250 permits for the DDI project into question. In September, the courts ruled to uphold the agency's stormwater permit but not the Act 250 permit. Although the permit was still intact, the appeal was sent to the Environmental Division for review. On March 20 2020, the environmental court ruled in favor of VTrans, granting the full Act 250 permit.
Under the terms of its permits, Costco is not allowed to open its gas pumps in the Exit 16 area until traffic improvements planned for the exit are completed by VTrans.
Under Chapter 5 of Title 19: Highways, an "interested person", "person interested in lands", or "property owner" are all defined as "a person who has a legal interest of record in the property taken or proposed to be taken."
VTrans attorney Jenny E. Ronis suggested on Thursday that while the three terms are all under the same umbrella, they have distinct meanings. "Robins and chickens are both birds, but a robin is not a chicken," said Ronis. She argued that who is defined as a necessary party "becomes refined as interests being taken or negotiated for become more refined."
Under Title 19, VTrans must hold a precondemnation hearing where all interested parties are invited to provide suggestions and recommendations from the public prior to acquiring property. According to Ronis, as an interested person but not a property owner, Vallee was given ample notice regarding VTrans' plans and invited to participate in the public hearing much earlier on.
"To my knowledge, Vallee did not participate in this process," said Ronis. "Therefore, it is not a deprivation of due process on VTrans' part; it's a failure to participate on Vallee's part."
The appellant's reply brief states: "Vallee is a property owner entitled to object to the necessity of VTrans' invasion of its property interest. By law, Vallee should have been named in VTrans' condemnation action."
Alexander Larosa representing Vallee at the Thursday hearings argued that the lease agreement between Vallee and LCT grants a third party right to use the property but "cannot materially adverse Vallee's right."
"It's very clear that the grant of right is still subservient to Vallee's interests," said Larosa. "What they have granted is substantially different than a right to use."
Larosa offered an analogy: think of property rights as a bundle of sticks, he suggested. "LCT gave some sticks to VTrans. [They] have a right to use the driveway but so does Vallee. When doing work on the driveway to the exclusion of Vallee, it is taking Vallee's property rights stick," said Larosa.
Ruling in favor of VTrans could set a dangerous precedent, said Larosa—one where the state takes property rights and excludes property owners without giving them the opportunity to argue necessity, a "pillar of due process."
"This is really about all of the other classes of property owners that could be affected by this," said Larosa.
Justice Beth Robinson noted that Vallee is "not in any way bound by any order that comes out of this."
"It's hard to put that toothpaste back in the tube," countered Larosa. "If the burden is shifted onto us to run into court at the eleventh hour and seek an injunction, then the standards have changed. We want to avoid piecemeal fights going on at the [final] hour."
Ronis countered that if Vallee wanted unlimited rights for use of the driveway, he should have gotten the fee. Vallee's property is not located on Lot 14; he has an easement for use of the driveway, one of two entrances to the Maplefields gas station. Furthermore, according to Larosa, LCT and Vallee's lease does not contain a condemnation clause.
"LCT has a right to convey shared use of the driveway," said Ronis. "The language of the lease allows LCT to convey these rights. To prevent that would give a benefit to Vallee that they did not negotiate in their lease."