A divided Shelburne Selectboard has voted to appeal a federal judge’s decision to issue a permanent injunction blocking the town from enforcing a hurriedly passed ordnance for the storage, handling and distribution of hazardous substances.
Selectboard Chairman Gary von Stange and members Dr. Colleen Parker and Jaime Heins agreed to accept an offer from the Vermont Natural Resources Council in Montpelier for it to pay $20,000 to fully fund the town’s appeal. The non-profit VNRC is a Vermont environmental advocacy group.
Von Stange, Parker and Heins gave no explanation for their decision to the two dozen taxpayers who waited almost two hours while the Selectboard met behind closed doors with Town Attorney Claudine Safar and Town Manager Joe Colangelo.
Vice Chairman Jerry Storey voted against the two-part motion that accepted the private funding and approved the appeal.
Selectboard member Dr. Josh Dein has recused himself from discussion on the issue involving Vermont Railway – the target of the ordinance for its new salt storage facility north of the village on U.S. 7.
When the public session resumed, Safar did not return to the meeting room. Von Stange read the proposed motion that once the $20,000 is received by the Shelburne, the town attorney will be authorized to go forward with the appeal. Parker, who was participating by speakerphone, formally made the motion and Heins seconded.
The motion left many in the audience confused, including former selectboard member Chris Boyd and former State Rep. Joan Lenes. Both questioned the process, including how the selectboard could accept the private money before the members voted in public on appealing the judge’s decision.
“It is the cart before the horse,” Boyd said.
Von Stange offered no clarification: “I think the motion speaks for itself,” he said.
After the 3-1 vote, the board moved quickly to adjourn. When approached by the Shelburne News for clarification, von Stange declined. “I have no further comment,” he said.
Storey, the only voting selectboard member who stayed after the meeting to answer questions from people in the audience, said he opposed the appeal. He told the Shelburne News he believes there are other ways to address pending issues with Vermont Railway and questions about the impact the salt facility might have on the community.
The public portion of the meeting was brief – about 11 minutes – and the tone was tense at the outset as Dein said he would recuse himself from the executive session. He told the board he would refrain from discussing legal strategy but asked that he be included if the group discussed the hazardous materials ordinance.
Von Stange challenged Dein, saying he didn’t think Dein’s remarks were appropriate in open session. The rebuke brought some reaction from audience members including a laugh from a woman in the front row.
“Why are you laughing?” von Stange said to the woman. “Do I laugh at you?”
As the audience voiced more comments, Storey addressed von Stange: “Now that’s my wife. Now you just back off,” he said.
Paying the appeal
Senior Federal Judge William K. Sessions III ruled last month the Shelburne ordinance and its performance standards “pose unreasonable restrictions on the railway in its operation of the storage facilities and are preempted” under the Interstate Commerce Commission Termination Act.
Sessions also said Vermont Railway could take legal action if the town of Shelburne attempted thoughtless litigation for the transloading salt facility.
VNRC’s $20,000 offer to help pay the town’s legal costs in an appeal came in a letter dated Dec. 18 to the board and Colangelo, but only became public a few days before Tuesday’s meeting.
VNRC Executive Director Brian Shupe did not respond to the Shelburne News last month when it asked if his group was making such an offer. The VNRC letter that was posted on the town website noted: “We wish to be open and transparent.”
It remains unclear what happens if the appeal to the U.S. Second Circuit Court of Appeals in New York City costs more than $20,000. The selectboard has spent more than $400,000 on the litigation to date – most of it unbudgeted.
“We understand the Town Attorney has agreed to complete the appeal for a sum not to exceed that amount inclusive of fees and expenses,” Shupe said in his one-page letter offering the funds.
Shupe, who lives in Waitsfield, said in the letter the VNRC has been approached by “members of the community and surrounding communities” interested in having the non-profit serve as “a fiscal agent for private donations to support the Town’s appeal.”
Sessions in his December ruling noted the ordinance, approved by the Selectboard 3-2, 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.”
The judge issued his ruling on Dec. 7 and Vermont Railway asked for a final order five days later. Sessions issued a final order on Tuesday, noting the town of Shelburne never responded to the railroad’s request after weeks. Tuesday’s order officially began the 30-day period for filing an appeal.
The timetable for the appeal is unknown.
Over the past two years of the litigation, Sessions has ruled multiple times in favor of the Vermont Railway and rarely in favor of the town’s positions. The lawsuit between the railway and the town began over whether the railroad could construct the facility without formal local or development review. The project received several permits from state agencies but it skipped any local permitting processes.
The $5.5 million facility consists of two large structures that can hold up to 40,000 tons of road salt each. Salt arrives by rail and is trucked to customers such as municipalities for treating roads in wintertime.
The town and project opponents object to the facility’s location near the LaPlatte River and potential impacts it may have on the environment. Other concerns include noise from the facility.
The case has divided the town and even the selectboard, which approved the hazardous materials ordinance 3-2 in August.
Shelburne News reporter Lisa Scagliotti contributed to this report.
Editor’s note: This story was updated to correct Brian Shupe’s hometown.