Waste district pays $4 million for land3/5/09

March 5, 2009

Purchase aimed at ending 17-year legal fight

By Greg Elias

Observer staff

Trying to end a long-running legal battle, the Chittenden Solid Waste District has paid $4 million for land needed to construct a landfill in Williston.

The district purchased the 76-acre parcel off Redmond Road on Feb. 12, according to a property transfer form filed with the Williston Town Clerk’s office. District officials say the owner, Hinesburg Sand & Gravel, has since cashed the check.

Eminent domain proceedings aimed at acquiring the property were initiated by CSWD 17 years ago. A lengthy legal case ensued, winding up with a 2007 ruling by the Vermont Supreme Court that Hinesburg Sand & Gravel should be paid $4 million for the land but was not entitled to more money for business losses.

That ruling left open the possibility that the company could ask for more money because of increased land values in the years since a jury established the price. But district officials hope the payment is the last word in the legal dispute.

“We decided the only way to get things moving forward was to pay for the land and take possession of it,” said Paul Stabler, chairman of CSWD’s Board of Commissioners.

Tim Casey, general manager and vice president of Hinesburg Sand & Gravel, said the payment “does not end all of the legal issues, I can tell you that.” He declined further comment, saying the company is still considering its options.

The purchase gives the district the remaining property it needs to build a long-planned landfill at the site. Refuse from Chittenden County residents and businesses is currently trucked about 70 miles away to a landfill in Coventry.

The legal battle over the property dates back to 1992, when CSWD initiated eminent domain proceedings after Hinesburg Sand & Gravel refused to sell the land. Eminent domain allows a government entity to seize land needed for public use as long as it pays the owner fair market value.

The state Supreme Court ruled in 1999 that the district had the right to seize the land. Four years later, a jury said Hinesburg Sand & Gravel should be paid $4 million for the land and $4.4 million for business losses.

In 2005, Chittenden Superior Court Judge Matthew Katz ruled that the district had not proved it was entitled to payment for business losses. The Supreme Court upheld that decision in 2007.

But that ruling may not be the last word in the case. The court said under procedural rules Hinesburg Sand & Gravel could ask for more money if it thought the land’s value had increased in the years after the payment amount was established, according to Michael Burak, CSWD’s lawyer.

By writing the $4 million check, Burak said the district was trying to “precipitate” a ruling and move the matter out of legal limbo.

When making his ruling, Katz said any request for an adjustment based on rising values should be made within six months of the time the district pays for the land, Burak said. The district previously requested a ruling on the land value but the court has not taken up the issue.

Mike Coates, Williston’s representative on the CSWD board, said he figured the deposited check indicated that Hinesburg Sand & Gravel would not pursue further payment.

“I think by virtue of the fact that they cashed the check they sealed the deal,” he said. “If they wanted to appeal, they would have put the money in escrow.”

But Casey said just because the check has been cashed doesn’t mean Hinesburg Sand & Gravel considers the matter settled. He said the company continues to extract sand from the property.

Even absent further legal tussles, CSWD officials say the proposed landfill will not be built anytime soon. The district has yet to settle on a design for the landfill and permits must be approved before construction starts.

A five-year plan calls for the district to focus on reducing the waste stream before proceeding with the landfill or another solid waste processing facility. Stabler said one goal is to increase the amount of waste that is recycled or otherwise diverted from a landfill.

Coates acknowledged that the purchase effectively locks CSWD into building some sort of waste processing facility. But given the industry’s evolving technology, he said that facility may not necessarily be a landfill.

“We own a piece of property up there that gives us an opportunity to build a waste processing facility,” he said. “By buying this property, we’ve got the option to be flexible.”