By Lisa Scagliotti and Mark Kobzik
The Shelburne Selectboard announced on Thursday that it has approached Vermont Railway Inc. to discuss mediation to end their dispute that has been fought in federal court over the past two years.
A brief statement to the Shelburne News from Town Manager Joe Colangelo said:
“As a result of further discussion by the Shelburne Selectboard in executive session during the Jan. 9, 2018, selectboard meeting, the four members of the selectboard involved with the Vermont Railway matter have decided to approach Vermont Railway Inc. to discuss the possibility of a non-court-ordered mediation session.”
The selectboard apparently discussed the ongoing litigation during an executive session portion of Tuesday’s meeting.
When the board returned to public session, it never mentioned any decisions made about the railroad matter during the closed-door discussion even when the topic of the railroad case appeal was brought up by members of the public.
Board Vice Chair Jerry Storey said today the board members did not discuss the idea of approaching the railroad in public session Tuesday because they thought they needed to consult their attorney.
Colangelo said the town attorney sent a message Wednesday morning to the railroad’s lawyer about the idea. He said he was not aware of any response this afternoon.
Afterward, the Shelburne News caught up with the railroad’s lead attorney, Marc Heath, who said he isn’t sure formal mediation is the best means for ending the dispute, but the railroad is interested in having discussions with town officials.
“Vermont Railway has always been in favor of settling this matter out of court,” Heath said.
At issue is a salt storage and handling facility built over the last two years just north of Shelburne village along the LaPlatte River.
The railroad owns two large warehouse-like sheds that together can store up to 80,000 tons of road salt that arrive by railcar, and are off-loaded and stored until they are trucked to customers for use on wintry roads.
Federal rules allowed the railroad to bypass local permitting processes for the project. The Shelburne town government objected to that and has fought in federal court to block and limit the operation. So far, the court has not sided with the town.
Just last week, the board voted 3-1 to appeal a ruling last month in U.S. District Court that went against the town.
Colangelo said the board’s initiative does not change its decision to appeal.
Storey, who voted against the appeal, described the overture to the railroad this way: “This is an opportunity before the next legal steps are taken. It seems like a good time to reason it out and we’d be remiss if we didn’t try.”
In deciding to appeal, the board said it would accept $20,000 from the Vermont Natural Resources Council, a nonprofit environmental advocacy organization, to pay for the appeal. The town’s lawyers have agreed to not charge the town more than $20,000 in taking the appeal to the U.S. Second Circuit Court of Appeals in New York City.
The appeal was praised by people who oppose the railroad’s salt facility and worry about its potential impacts on the environment and other issues, including traffic and noise.
The selectboard has heard from others who object to continued legal action because of the cost — so far the town has spent more than $400,000 on the case — and because the ongoing case does not specifically address some of the key concerns about the facility.
The latest legal maneuvers focused on a new ordinance regarding the storage and handling of hazardous materials adopted last summer. The town wants it to apply to the salt operation but Senior Judge William K. Sessions III has sided with the railroad, ruling that the ordinance does not apply to the railroad’s salt operation.