Town, railroad wait for judge to rule

It is now a waiting game.

Senior Federal Judge William K. Sessions III has given Shelburne and the Vermont Railway Inc. until Nov. 20 to file memoranda supporting their positions on a new ordinance restricting the storing, handling, and distributing of hazardous substances.

Vermont Railway is seeking a permanent injunction to block enforcement of the ordinance, which the railroad believes singles it out and could force it to shut down its new $5.5 million salt storage facility off Route 7. The railroad maintains that strict federal and state regulations provide more than enough protections and the Shelburne Selectboard took unnecessary steps.

Shelburne maintains the regulation is needed for town-wide public safety. It prohibits storage close to water and schools and restricts storage to 72 hours. It also limits the amounts of various products.

Sessions heard five hours of testimony from the railroad and five more from the town during this week’s two-day hearing at the U.S. District Courthouse.

The railroad, which went first, presented seven witnesses, including company president David Wulfson and its consultant, Jeffrey Nelson, on the first day. The railroad used 3 hours 28 minutes, while the town used 1 hour, 35 minutes to cross-examine the two witnesses.

During the second day, Vermont Railway offered a series of quick witnesses, including Shelburne highway superintendent Paul Goodrich, Selectboard member Dr. Josh Dein, and former Selectboard members Toni Supple and John Kerr. Town Manager Joe Colangelo was the final witness called by railroad lawyers Marc Heath and Jennifer McDonald.

The town relied on five witnesses, including three consultants, Andres Torizzo, John Diego, and Gary Hunter. Shelburne also called Selectboard member Dr. Colleen Parker and wrapped up its case with Selectboard Chairman Gary von Stange.

Von Stange said no one business was targeted with the ordinance, passed Aug. 8. He said the town has tried to work with every person and business with concerns, and amendments were made Oct. 24. He said he had studied ordinances from other communities, including Detroit, Chicago, Los Angeles, Hinesburg, and Winooski.

When it came time to cross-examine von Stange, the railroad had only two minutes left on its clock. After a brief huddle, Vermont Railway lawyers decided to recall an expert, Nelson, to dispute some testimony the town had produced.

Hunter, who is from Reno, Nev., testified that the company that offered him as an expert witness is charging Shelburne $560 an hour for his work. He sat through two full days of testimony and had come to Shelburne earlier to inspect the railroad site to prepare a report. The rates Shelburne is paying for Torizzo and Diego were never disclosed.

Hunter said he had scouted other possible sites for the salt storage facility and found one in Ferrisburgh. He stressed several times the railroad had to be concerned about the health safety and welfare of the general public.

During the two-day hearing, it remained unclear how the ordinance got its start. A draft was presented during a July Selectboard meeting, but both Parker and Dein said they were away. Dein said he went back to look at the videos of meetings, along with agendas and minutes, and found no mention. Kerr and Dein said during the first reading of the proposed ordinance in July, only the title of the new regulation was read. There was no discussion and no questions.

The Selectboard members and Colangelo were prohibited under attorney-client privilege from disclosing legal strategies discussed as part of the two-year-old lawsuit between the railroad and the town.

Colangelo, citing the advice of the town attorney, declined to answer some questions from the railroad. At one point, he left the witness stand to consult with Town Attorney Claudine Safar.

Among the questions not answered was who formed the quorum of the Selectboard when the first draft was requested.

Later, when questioned by Safar, Colangelo said that shortly after he was hired on March 31, 2014, von Stange had mentioned hazardous materials among a list of topics that should be discussed at a future meeting.

Supple, who served on the Selectboard from March 2013 to March 2016, said she had no memory of the town attorney ever being asked to draft a hazardous materials ordinance, nor was it an agenda item at any meeting. She said she believed during an executive session there was some discussion of the storage of railroad cars because the town of Charlotte had raised the issue.

Other witnesses were subpoenaed, including Volunteer Fire Chief Jerry Ouimet and former Selectboard member Tim Pudvar, but never got to the stand after waiting a full day.

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