Town seeks delay; railroad balks

The Shelburne town government is asking for a five-week delay in a court hearing over the town’s new ordinance on regulating the storage, handling and distribution of hazardous substances.

Vermont Railway has asked the federal court in Burlington to block enforcement of the ordinance, and is fighting the court delay.

The railroad said town officials have repeatedly told residents the ordinance was discussed for more than three years and was passed Aug. 8 to beat a court deadline. Yet, the railroad said, the town is now claiming it needs more time to prepare and wants the two-day hearing postponed until Dec. 4 and 5.

Last week, Senior Judge William K. Sessions III set the injunction hearing for Nov. 1 and 2.

Shelburne also wants the judge to extend the discovery period — the time the two sides can use to exchange information. That would include taking depositions — question-and-answer sessions of witnesses under oath with the lawyers present, but no judge.

Vermont Railway filed a written objection Monday both to delaying the hearing and to extending the discovery period. The railroad said there is no reason to delay the hearing.

“The railroad has now twice expended time and resources in preparing for an injunction hearing, only for the town to request again that it be continued,” wrote Jennifer McDonald and Marc Heath, lawyers for Vermont Railway.

“The railroad has a strong interest in resolving this dispute once and for all, and there is no justifiable reason to delay this resolution any further, given the extensive discovery which has transpired over the past two years, let alone the past month,” they wrote.

The town of Shelburne responded Tuesday by asking the judge to schedule an immediate conference to try to resolve the timing issues.

Shelburne has said it will not try to enforce the ordinance against the railroad while the civil lawsuit is pending.

The Selectboard, meeting Tuesday night, held a public hearing on making amendments to the ordinance passed two months ago. At the board meeting, attended by about three dozen local residents, no mention was made of the town’s request for a delay in the court hearing.

Judge Sessions conducted a hearing Sept. 25 on a request for a preliminary injunction and agreed to give both sides five weeks to prepare their cases. Town Attorney Claudine Safar wrote that the time will also allow both sides to “locate, educate and prepare experts.”

Vermont Railway noted that Shelburne filed its motion for delay one day before the court-ordered deadline for the parties to disclose the names of witnesses they plan to call. Shelburne listed three experts: two on environmental issues and one about railroad operations. The town also plans to call two Selectboard members and one town employee.

The railroad said, “The town fails to explain a) precisely what discovery it thinks it needs to proceed with the hearing; b) why it has not prepared its case over the last two weeks; and c) why the hearing should be continued for more than a month.”

The railroad, in its response to the delay request, said its expert witness will be unavailable in December and January, but meanwhile the town recently obtained approval from the Selectboard to retain a fourth consulting expert witness.
“In hurriedly passing the ordinance” on Aug. 8, the town “should have known it would face opposition from the railroad and should have prepared to defend the ordinance in court,” said Heath and McDonald, part of Downs Rachlin Martin, the Burlington law firm retained by the railroad.

They noted Judge Sessions had earlier rejected a December hearing partly because McDonald will be on maternity leave and the judge’s own schedule did not permit the delay.

“The town’s motion is nothing more than another attempt by the town to delay the court’s review of the storage ordinance and prejudice the railroad,” they wrote.

Lawyers making money
The railroad filed the lawsuit against the town and its zoning administrator — who is Town Manager Joe Colangelo — Jan. 26, 2016. The two sides have been battling ever since and it was unclear how long the case could go on.

During the Selectboard meeting on Tuesday night, local resident Thomas Murphy asked if the town planned to appeal to the 2nd Circuit Court of Appeals in New York City if Judge Sessions rules for the railroad.

Chairman Gary von Stange, a lawyer, said he considered that “litigation strategy” and he was not going to answer the question.

Murphy said he is concerned about how much the legal dispute is costing Shelburne taxpayers and he has come to the realization the town should be working with the railroad, not against it. He said tax money should not be wasted on “frivolous lawsuits.”

“We don’t need this ordinance,” Murphy said.

Chris Boyd, a former selectman and town fire chief, agreed.
“I don’t believe there is a need for it,” he said.

One resident said she supports the ordinance, but does not like one of the proposed amendments that increases the amount of storage time from 24 to 72 hours for certain products covered by the ordinance.

The railroad and the town appear to be unable to agree on much, including how many lawyers are involved in the case.

“The town’s law firm itself has at least four attorneys working on this matter; thus the railroad fully expects the parties can work out a schedule to complete discovery over the next week that accommodates their respective needs,” McDonald and Heath said in a filing Monday.

By Tuesday, the town had responded and disputed Vermont Railway claim that the town of Shelburne has been using four lawyers.

“The town has two attorneys working on this matter, and those attorneys have received assistance of another two attorneys — Brian Monaghan and James Conway — at the firm for an extremely limited number of specific matters,” Safar wrote.

Safar said Heath and McDonald are being assisted by Eric Benson and Peter Young, who the railroad has said “are not trial counsel.” Heath and McDonald, who are retained by the railroad in this case, noted Benson and Young are railroad lawyers.

Safar said Young has been involved in the taking depositions by slipping notes to others.

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