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Whose land is it?
Town may play eminent domain card in land dispute
January 13, 2006

By BRENDAN McKENNA Herald Staff


The Rutland Town Planning Commission is calling for the town to raise the stakes in its dealings with Omya Inc. over flood rights to a local farm.

The commission is asking the Select Board to look into taking the company's riparian rights throughout the town by eminent domain if Omya won't consider giving up the rights on one property.

Commission member Tom Turner, who proposed the idea to the commission, hopes to help David F. Dickinson, who is in his late 70s, preserve his farm through the Vermont Land Trust.

Dickinson was on the verge of a deal with the Vermont Land Trust in May when it was scuttled by the discovery that the Vermont Marble Co. owned easements dating from 1923 to 1941 on his 175 acres.

The easements grant Omya, the successor to Vermont Marble, the right to temporarily or permanently flood the Dickinson's land through the operation of its hydroelectric dam on the Otter Creek. The company would have to compensate the family if it exercised those rights.

Elise Annes, vice president for community relations for the Land Trust, said in December that Omya's ownership of the flooding rights made it impossible for the trust to buy the development rights to the farm.

The town Select Board then proposed trading the rights for some town land that Omya hopes to use to build a recreation and viewing area, but Omya officials told the Select Board in December that the issues are totally separate.

"I don't think that the development rights should be prevented from going to the Vermont Land Trust because of (Omya's) easements," Turner said Tuesday.

He said he proposed looking into eminent domain as a way to put pressure on the company to consider a trade.

"We have to look for some leverage to say 'what could we possibly do to convince the owner of those rights to the Land Trust,'" he said. "I'm not suggesting the town should spend a lot of money doing an eminent domain case, but the possibility should be pointed out to Omya."

James Reddy, the head of the Omya's North American operations, was surprised when notified by a reporter Tuesday that the town might be considering eminent domain to take the riparian rights of the Dickinson farm.

"It's a new one to me. This is the first I've heard of it," he said. "I can't comment on what they might or might not do."

He added that the company's ownership of the riparian rights should not have come as a surprise to the Dickinsons.

"When we sold the property to them in the '20s and '30s we reserved the riparian rights," he said.

Reddy also said he was not sure why the company's ownership of the flooding rights — which he said federal regulators require the company to control upstream of their hydroelectric plant — would stand in the way of the conservation deal with the Land Trust.

"The federal government had no problem with the riparian rights" when it preserved some forestland in the area, Reddy said. "Maybe the federal government realized that the dam is 15 feet below the lowest point of the Dickinson property."

Reddy added that the proposed recreation area, a requirement of a federal permit for the hydro plant, was not something the company was planning for its own benefit.

"The recreation area and canoe launch area and viewing area was for the town itself," he said. "It wasn't for Omya's benefit that we asked for the property. It was for the benefit of the town."

Other Omya officials told the Select Board in December that if they didn't get the town property they would simply scale back their proposal to use lands the company already owns.

Town Administrator Joseph Zingale Jr. said his initial discussions with the town attorney about acquiring the riparian rights through eminent domain were less than promising because eminent domain can only be used for the benefit of the town as a whole, not for one property owner.

But William Matteson, chairman of the Planning Commission, said there is a solution to that problem.

"If we do the eminent domain thing we'd get the riparian rights for all the (Rutland Town) property in the valley," he said. "We'd like to preserve all the properties in the area as agricultural as well as recreational."

He added, "We can't just do it for one property. That wouldn't be fair. … But it would be great if we did it for the whole valley."

Stanley Rhodes III, the chairman of the Select Board, said it would likely take some time for the Board to consider the Planning Commission's suggestion.

"It's kind of on the back burner," he said, adding that the board might not address the question until after town meeting in March, because Selectman James McNeil is not running for re-election.

He said it might make more sense for the town to wait until a new selectman is elected and then decide rather than having to revisit a decision made before the election.

"The Select Board is letting the planning commission do its thing before we get involved," he said.