by C.B. Hall Vermont Business Magazine A federal court hearing in Burlington Monday, March 7, on the Vermont Railway's (VTR) controversial plan to build a road-salt shed alongside its tracks just north of Shelburne village, left both sides in the suit an opportunity to claim some measure of victory. The Vermont Railway and the town of Shelburne have been battling since January over the railway's right to build the facility, to be located on a 33-acre tract purchased by the railroad in late December.
At the March 7 hearing, Federal District Court judge William Sessions declined to issue a decision on Shelburne's motion for a preliminary injunction to stop work at the site, where heavy equipment continues pre-construction work. Instead – confronted by the chasm between the two litigants' views of the facts in the matter - he called on the parties to present evidence on the issues under dispute. A hearing on the evidence they submit will likely be held in early May.
The pivotal question is to what extent the role of local and state authorities in permitting the project is preempted by federal law, which gives jurisdiction over railroad construction to the federal Surface Transportation Board.
The court has consolidated consideration of the preliminary injunction and a permanent injunction, which is also being sought by Shelburne, meaning that the May hearing could stop the entire project.
Before the day was through, both the town and the railroad, a subsidiary of the Vermont Rail System (VRS), had issued press releases claiming victory following the hearing. In its statement, VTR looked forward to continuing site-preparation work without immediate intervention from the court, while the town noted that the court had declined, at least for now, to accept the railroad's claim that federal law preempts the town's jurisdiction over the site's development.
On February 24 VTR received a federal stormwater discharge permit for its work, and has indicated a willingness to discuss with Shelburne certain elements of what the railroad hopes ultimately to build on the site.
“We are pleased that the Court recognized the importance of moving forward with the court proceeding without delaying construction of our new rail facility,” VTR President David Wulfson stated, in the railroad's release.
In its release, the town expressed satisfaction that the court had left the door open to Shelburne's challenge to the federal preemption doctrine. “The Court expressed great interest in the relationship between Vermont Railway and Barrett Trucking,” the release stated, referring to the Burlington-based company whose trucks would distribute the salt from Shelburne to road departments around the state. A trucking company operating at the site might not be subject to the same federal preemption that applies to railroads.
A spokesman for Barrett Trucking declined to comment for this article.
In the town's press release, selectboard chair Gary von Stange stated that “today's rulings also validated the Town’s position that the many environmental, traffic and safety concerns that so many have voiced will be considered in the Court’s determination of the scope of preemption applicability, and that Vermont Railway should be subject to review for all non-exempt portions of the project.”
“It has always been our preference to communicate directly with the town and avoid court,” Wulfson said. “We continue to welcome open discussion with Shelburne town officials if they are interested.”
VTR's release began by stating that Sessions “rejected the Town of Shelburne’s request for a preliminary injunction on the construction.” Sessions in fact declined to put an immediate halt to the pre-construction work, but deferred a decision on the injunctive relief. Reacting in an email to the VTR's wording, von Stange told VBM, “Vermont Railway's attempt to divert the public's attention away from what actually happened at today's hearing is reflective of not only their continued myopic grandiosity, but also that their public relations campaign has been and continues to be disingenuous. While it's regrettable that VRS would distribute a Press Release that, at best, mischaracterizes what happened in Court, it is something that Shelburne residents have learned is Vermont Railway's style.”
“We certainly don't agree with that statement,” VTR assistant vice president Selden Houghton responded, in an interview for this article. He pointed out that the town had asked the court for an emergency hearing on its motion, but, in his view, had not received the emergency relief it sought.
“Obviously there was a different perspective yesterday from both parties,” he said. "We're open to sitting down with the town and giving them more information about the project.”
The Selectboard will discuss this matter tonight in executive session, March 8.
VTR has not been invited to attend, Houghton said. “We offered to come . . . but it at this point we haven't had a response.”
In February VTR president David Wulfson informed Shelburne that it could relocate the salt shed project to a site in South Burlington - at Shelburne's expense. But the costs for Shelburne, just for purchasing the property, would almost match the town's total yearly budget, rendering the relocation highly unlikely. Pending the court ruling several weeks hence, a stalemate is settling in.
Photo by C.B. Hall of the site off Route 7 in Shelburne.