After the purchase of industrial-zoned land in December, Vermont Rail System wasted no time in preparing a 19-acre lot on Route 7 in the village of Shelburne for a new transfer station without consulting the town’s planning and zoning department. The railroad assumed that process was preempted by federal law. Shelburne and the railroad have been involved in litigation ever since.
In January, the town filed a motion for preliminary injunction on construction of the project in the Environmental Division of Vermont Superior Court to cease clearcutting activity there. Vermont Rail System then filed a complaint in U.S. District Court seeking declaratory judgement, meaning they were asking for a removal of the town’s motion.
March 7, the court held that it was premature for Vermont Rail System to assert federal preemption. Judge William Sessions said that even if preemption were applicable, the exceptions to preemption might come into play in this matter. He requested more information before making a judgement.
Selectboard Chair Gary von Stange said, “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.”
Vermont Rail issued a press release after the hearing erroneously indicating the town’s request for preliminary injunction had been rejected. In an email interview Wulfson said, “Today we won. We are still working.”
Vermont Rail System did receive a Federal NPDES Construction Stormwater Discharge Permit Feb. 25 which allows them to move forward with some preparation of the site, Wulfson said.
The town’s request was not rejected, the court would like more information and has ordered that the town and Vermont Rail engage in preemption-related discovery. A full evidentiary, consolidated hearing for preliminary and permanent injunction is now scheduled for April.
Wulfson reiterated, “I am quite pleased the court denied the town’s motion for an injunction today and am glad to move forward in the court case without delaying the project. It has always been my preference to work directly with the town and avoid court. If town officials want to further discuss the project, I am happy to meet with them.”
Shelburne’s new railroad transfer station is slated to take over some of Vermont Rail System operations that happen now in Burlington, such as salt storage. “The State of Vermont and over one hundred municipalities depend on our salt shed facility,” Wulfson said. “The railway’s current Burlington facility is inadequate to meet Vermont’s needs and this new facility will ensure that the state and our municipalities can keep our roadways safe.”
Questions about environmental, traffic and safety impacts remain unanswered. Selectboard member Colleen Parker said when the town asks for impact studies, Wulfson is quick to offer a payoff. “We tell him that we do not know how big this will be and we need to see some traffic, environmental and safety studies,” she said. “He is not a team player. We won’t be paid off.”
When asked how the town is supposed to keep townspeople safe and comfortable and prepare for a huge project like this without impact studies Wulfson said, “By getting involved and working with us. Not fighting to stop us in court. We are happy to proceed either way, as we have said all along. One more time, we have been told the only option is a ‘no build.’ There is no talk about impact mitigation.”
Shelburne Town Manager Joe Colangelo said, “Nothing prevents negotiation while in litigation. It’s reasonable and responsible to explore the town’s legal rights here.”
Wulfson said, “We have offered to share any information in executive session. They do not want to learn the facts. So we move forward with no input from the town. It’s too bad. There could be many benefits if they would talk.”
Colangelo said he was clear in conversations with Wulfson about wanting impact studies conducted. Colangelo said he has gone above and beyond Selectboard meetings and executive sessions to talk with Wulfson. “I’ve even met with David on the weekends, to lunch and went on a tour of the Burlington facility,” he said. “We have had an ongoing discussion. We have talked, texted and emailed regularly.”
Vermont Rail has not been completely forthcoming with information on this project, Colangelo said. “For example, Vermont Rail System never disclosed the possible future fleet fueling stations, that was actually a discovery of town staff.”
Selectboard member Colleen Parker said Wulfson, who is a resident of Shelburne, is losing the battle with public opinion on the project. “We all want a solution where everyone wins here, but he wants to set the agenda with payoffs. This is an abuse of power.”