Vermont Railway v. Shelburne and the upcoming election — Gary von Stange

Two significant points respond to questions raised regarding the Vermont Railway litigation. First, recent Court decisions favorable to the Town provide strong reason to be optimistic that we are close to a positive outcome. Second, the Selectboard has acted in accordance with what can only be characterized as a Town mandate. One thousand people signed a petition with one direction: “We the undersigned residents of Shelburne hereby request that the Selectboard use ANY and ALL means possible to relocate this project.”

Over five hundred attended the Feb. 9, 2016 Selectboard meeting providing town residents and Vermont Railway opportunities to be heard. The overwhelming sentiment was consistent with the petition, with residents wanting to defend regulations enacted to protect public health, safety, and welfare. The 671-member Vermont United volunteer group was formed with the stated purpose of preventing the project from “changing our beloved town forever in bad ways.” The Town has not only met every obligation under the Charter for the expenditure of funds, it has gone farther by regularly providing information that includes disclosure of status and costs.

If the project were immune in all respects from regulations because of preemption, then the Court could have issued a decision in favor of the Railway long ago. But as the Court explained in its July 29 Order, “not all state and local regulations are preempted [by the ICCTA]; local bodies retain certain police powers which protect public health and safety.”

Now, there is reason for optimism. The Town’s position throughout this litigation that the role and interests of Barrett Trucking, an entity with no independent standing to invoke federal preemption, is critical. On Jan. 12, 2017, in a significant ruling, Judge Sessions issued this Order:

In the October 18th [2016] hearing, the Court was primarily concerned with whether Barrett Trucking and the Railway committed such a misrepresentation by mischaracterizing Barrett Trucking’s role in the venture. The documents which have been produced so far signal that Barrett Trucking may have represented that it had a different interest in the facility than that which was manifested to the Court. Under the terms of the loan agreement, Barrett Trucking appears to be either primarily responsible for a wide range of obligations related to the development of the facility or an equal partner in the development of the facility. These obligations were not revealed to the Court at the hearing, and the Court may find them to be so inconsistent with the Barrett Trucking’s previously-described role that they evidence misconduct for purposes of Federal Rule of Civil Procedure 60(b)(3).

Rule 60 authorizes relief from a prior court ruling where there is fraud, misrepresentation, or misconduct. The Town seeks relief based on newly-discovered evidence that contradicts prior testimony. The Jan. 12 Order stated, “The Court made clear that its key concern was ‘whether or not there was a representation by Mr. Barrett that he had an interest in the property which is other than what he disclosed in Court.’” This “key concern” will be addressed March 27; a decision favoring the Town could issue shortly thereafter.

The importance of regulating public health, safety, and welfare issues is demonstrated by numerous and significant complaints by residents adversely affected by the facility’s noise. The Selectboard reacted immediately, holding a public discussion. The Town has endeavored repeatedly to negotiate this issue. Incumbents John Kerr and Colleen Parker have supported the Town throughout this process and are working with residents to address all issues relating to this site.

Colleen Parker and John Kerr are resolved to finish this matter, hopefully with a decision in the near future that addresses issues relating to safety, environment, traffic, health, welfare, and noise. It would be a severe mistake for the Town to abandon victory when its strong possibility is so close. Votes for Colleen Parker and John Kerr are votes to sustain the integrity of regulatory measures that have evolved throughout Shelburne’s history to protect and maintain public health and safety, property values, and orderly development. Colleen and John each bring intelligent and experienced perspectives to public service that will continue to benefit our community.

Gary von Stange

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