By MIKE DONOGHUE
A federal judge has issued a permanent order, banning the Shelburne town government from enforcing a hurriedly passed ordinance dealing with the storage, handling and distribution of hazardous substances — an ordinance that targeted Vermont Railway and its new salt-storage facility.
The rules would “pose unreasonable restrictions on the railway in its operation of the storage facilities and are pre-empted” under the federal Interstate Commerce Commission Termination Act, Senior Judge William K. Sessions III said in his decision issued late Thursday afternoon.
He ruled the ordinance must be struck “because (1) it discriminates against the railway and (2) the significant burden it places on the railway outweighs the town’s inconclusive and overstated public health and safety concerns.”
Sessions said the permanent injunction is necessary because the railway “has suffered an irreparable injury” and remedies such as monetary damages will not suffice. He said “the public interest is not disserved by a permanent injunction.”
The $5.5 million facility, which received several permits from the state but did not undergo local development review, is used to store road salt until it can be hauled to town and state highway department storage areas. The judge wrote that the railroad facility off Route 7 north of the village includes a “sophisticated environmental monitoring and mitigation plan,” and state government monitors its operation.
The judge stopped short of approving a railroad request to block Shelburne from enforcing any zoning or subdivision regulations forever against the salt sheds.
“The court appreciates the bitterness of this dispute, but this request is a step too far,” Sessions wrote. He said such a wide ban would block possible action attempted by future selectboards.
However, “the court notes that the railway would certainly have recourse if it is subjected to frivolous litigation related to its transloading facility in the future,” Sessions ruled in his 30-page decision.
As Session noted, the two-year legal action has been bitter at times. The case has split the town and even the selectboard, which approved the ordinance 3-2 on Aug. 8 with Chairman Gary von Stange, then-Vice Chairman John Kerr and Dr. Colleen Parker in favor.
Selectboard members Jerry Storey and Dr. Josh Dein voted against, saying the board needed to slow down and study the issue more. The selectboard did postpone the effective date until late October so members could rewrite some problem areas. Several changes were adopted Oct. 24, but little was done for the ongoing concerns of Vermont Railway.
The ordinance was approved the night before the town was required to file long-awaited information with the federal court, and only after the railway had said it acted in good faith giving the town extra time.
In rejecting the town’s position, Judge Sessions wrote, “First, the timing of its enactment, the focus and thresholds included in it, and the severe penalties permitted by it all point toward discrimination against the railway. … The storage ordinance would place significant restrictions on when and where rail cars move and when and where rail commodities are shipped and stored.
“These restrictions, as applied to the facility, unreasonably burden rail transportation and do not meaningfully protect public health and safety. Thus, the storage ordinance is not a valid use of the town’s police powers” and is pre-empted by the federal Interstate Commerce Commission Termination Act.
In one section of his ruling under the headline “discrimination,” the judge noted Shelburne is trying to stop Vermont Railway, but had no trouble allowing the town’s own salt shed, which is near a school and the LaPlatte River, to continue to store 550 tons of road salt.
The ordinance would have allowed the town to fine the railroad up to $10,000 a day, and to issue health orders to remove the road salt and to limit the amount of fuel and other commodities the railway can temporarily store.
“These regulations would impose severe restrictions on the Railway’s ability to conduct its business,” the judge said.
At a preliminary hearing Sept. 25, the court issued a temporary restraining order against the town and agreed to consider a permanent ban on enforcing the ordinance against the railroad. It conducted hearings Nov. 1 and 2, with each side allowed five hours for its respective position.
The Shelburne News will update this story online and in the Dec. 14 print edition.