Vermont Railway cries foul on Shelburne haz-mat ordinance

After waiting for over a year for the town of Shelburne to comply with a federal court order, Vermont Railway Inc. now says it got duped by trying to work cooperatively with local officials.

A U.S. District Court judge directed the town of Shelburne on June 29, 2016 to “indicate precisely which zoning regulations (police powers) it intends to enforce,” against the railroad when it comes to the new salt storage and distribution facility off U.S. 7 near the LaPlatte River, according to court papers.

Instead, Vermont Railway said, Shelburne officials dragged out the response and then this month quickly passed a couple of ordinances the town now says it plans to enforce.

Judge William K. Sessions III issued a partial final judgment on the June 2016 order Interstate Commerce Commission rules “preempts the Town of Shelburne’s pre-construction permit requirement and related zoning regulations as to the Shelburne transload facility.”

Sessions also scheduled a status hearing at 11 a.m. Sept. 22 in U.S. District Court.

Since July 22, 2016 the railroad made no less than five specific requests that the town comply with the Court’s June 2016 Opinion and Order, Vermont Railway told the judge in court papers in a recent court filing.

“Despite its most recent promise to provide a response following the Selectboard’s July 12, 2017 meeting, the Town requested an extension of time from the Railroad until August 9, 2017 to respond to the Motion to Enforce after the Selectboard’s meeting on August 8, 2017, according to the railroad’s lawyer Marc Health of Downs Rachlin Martin in Burlington.

During that Shelburne Selectboard meeting on Aug. 8, the members voted 3-2 to approve an ordinance covering the storage, handling and distribution of hazardous substances.  Chairman Gary von Stange, Vice Chair John Kerr and Dr. Colleen Parker voted in favor.

The day after the Selectboard meeting, the town attorney filed court papers saying the town will identify which police powers it plans to enforce once the railway completes development for its property.  Attorney Claudine Safar wrote that Judge Sessions had noted that it would be at that point the court will determine whether the Interstate Commerce Commission rules preempt local zoning rules.

The Selectboard approved the new ordinances despite questions from the public, concerns from other town officials and objections from local businesses who said they feared the new rules would hinder their operations. Selectboard members in favor of the new laws suggested that exemptions would address the concerns adequately.

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