Selectboard still to discuss next steps in court case against Vt. Railway

By Mike Donoghue

A discussion among the Shelburne Selectboard last week regarding possible next steps in the court case involving Vermont Railway was postponed after the chairman was taken ill, cutting short the board’s meeting time.

The topic is on the agenda for the selectboard’s meeting at 6 p.m. Tuesday.

The board met all day last Wednesday with town government department representatives as part of the process to draft the 2018-19 municipal budget. It intended to hold an executive session at the end of the day along with Town Attorney Claudine Safar to discuss strategy in the railroad case.

The closed-door session was postponed after board Chairman Gary von Stange wasn’t feeling well and decided to go to the hospital to be evaluated, town officials said.

Town Manager Joe Colangelo said Friday that von Stange was “OK” and was expected to make Tuesday’s meeting where the legal-strategy conversation was expected to happen in executive session.

Under Vermont law, any decisions reached in closed session need to be voted on and finalized in open session.

The selectboard must decide whether to continue its legal action against the railroad regarding the salt storage facility it opened last year near the LaPlatte River.

In a ruling on Dec. 7 in U.S. District Court, Judge William K. Sessions III said a new ordinance adopted this summer to regulate the storage, handling and distribution of hazardous materials does not apply to the railroad’s salt operation. His order blocks the enforcement of the town ordinance against the railroad.

Meanwhile last week, Vermont Railway filed a request in federal court asking Judge Sessions to enter a final judgment on the permanent injunction that he issued the previous week against the town in the matter.
Railroad lawyers Marc B. Heath and Jennifer E. McDonald of Downs Rachlin, Martin in Burlington also asked for final judgment in the judge’s decision striking down the so-called “Performance Standards” the Selectboard also tried to implement.

Once the judge issues a final judgment order, the 30-day appeal period goes into effect.
The court on June 29, 2016 granted the railroad’s request for a judgment that the Interstate Commerce Commission Termination Act (ICCTA) pre-empted the town’s pre-construction zoning regulations as to the railroad’s intermodal salt storage facility. The court reserved judgment on the question of whether the ICCTA preempts other, unspecified local regulations – such as the new hazardous materials ordinance – relating to the operation of the railroad’s salt facility.

The ordinance was introduced and adopted last summer before the federal court case was closed. The railroad responded by asking the court to rule on whether the local law should apply to the salt operation. Sessions’ decision Dec. 7 permanently blocks the town from applying the new ordinance to the salt operation.

If town officials wanted to continue their case, it would mean appealing to the U.S. Second Circuit Court of Appeals in New York City.

Tuesday’s selectboard meeting begins at 6 p.m. at the town offices. Other items on the agenda include the town’s social media policy, fire and rescue budget proposals for fiscal year 2018-19, and another possible closed-session discussion of a Nov. 28 letter to the selectboard from the town manager’s attorney.

Shelburne News reporter Mark Kobzik contributed to this report.   

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