In support of appealing the Vermont Railway case to the Second Circuit Court of Appeals

By Nora von Stange
When deciding to speak up at a recent Shelburne selectboard meeting in favor of appealing the judgment in Vermont Railway Co. v. Town of Shelburne, I of course knew that some people would disagree with my views. But I was quite surprised to read about my comments in an op-ed piece that leads off “The Holocaust really happened.” I am the person who the author, Tim Dudley, refers to as “Mrs. Chairman.”

Prior to the December 19 selectboard meeting, I had never commented on Town matters at any meeting or in any print or electronic media. I have never met or communicated with Mr. Dudley. Accordingly, my remarks at the selectboard meeting are the sole basis for his conclusion that I am “bent on satisfying [my] vehement personal hatred for, malice towards, and revenge on those that oppose [my] own personal beliefs and opinions, regardless of the facts, the truth, the cost to the town, or the greater good.”

My statement to the selectboard is set forth below so that anyone interested may draw their own conclusion as to whether it communicates vehement hatred, malice and revenge upon people who oppose my beliefs and opinions, and disregards the facts, truth, cost to the town, and the greater good.

“I’m Nora von Stange, Ridgefield Road, and I’m Gary von Stange’s wife. I’d like to start this by letting you know that I am a voter, taxpayer and business owner in my own right and am here with my own views to share with you. I did send a letter to you all, but am here to speak because it was very late in the day. It is to urge you to vote in favor of pursuing the appeal in Vt. Railway Co. v. Town of Shelburne.

I’ve followed the lawsuit from its beginning. I’ve read the pleadings, the motion papers and the decisions. I also have a background as a litigation attorney for just about 25 years and for three of those years, I had the extreme good fortune and honor of clerking for the federal district court and the Second Circuit Court of Appeals.

This is not an introduction to a detailed legal analysis, I assure you, but to let you know that as result of all that experience, I have complete confidence in an appellate review process and procedure that offers the opportunity to have three judges take a fresh look at the factual assessment and legal analysis of one judge.

And at issue in this case, among others, is the reach of an already powerful statute to preempt the ability of…well, really to displace the ability of municipalities or states or other local government entities to regulate activities within their borders.

In my view, this is an issue on which reasonable jurists could disagree and therefore presents a meritorious appeal. And some of my reasoning behind this is that the Town is the governmental entity in which individuals have the greatest influence and I think that’s a status that justifies efforts to preserve it. The Second Circuit has recognized and upheld limitations on federal preemption as it applies to historic police powers. An appellate review of the reach of the district court’s opinion is important not only to the Town but to define the contours of a precedent that will be applied to other municipalities, states and local governmental entities in the exercise their respective police powers.

I’ve heard the opposition to the appeal voiced by people based on financial considerations, a general sentiment that it’s just time to move on, and in addition, agreement with a decision that would be at risk for reversal or modification if it were appealed. But I have heard no principled or practical or consequential reason to reject the opportunity to pursue a no-cost appeal, and I believe that in the absence of such a reason, it would be irresponsible to do so. Certainly, pursuing the appeal does no disservice to the Railway, which will be given a full and fair opportunity to be heard.

I urge you to support a continuation of the defense of the Railway’s lawsuit and to vote in favor of pursuing the appeal.”
Nora von Stange is a Shelburne resident and attorney.

2 Responses to "In support of appealing the Vermont Railway case to the Second Circuit Court of Appeals"

  1. Dave Andrus   January 19, 2018 at 2:26 pm

    All of the attorneys representing our town, or married to them as is the case with Mrs. von Stange, must have skipped their constitutional law classes, or have never played a hand of poker. A royal straight flush beats all other hands. VT Railway had the equivalent to this winning poker hand before the town’s litigation began. No offense to Mrs. vonStange but litigators focus on litigate, especially when it is a challenging case or make precedence in an area of personal interest.

    The Town of Upton, MA which is similar in size to Shelburne, had a similar issue with a local railway plan for a propane transloading facility in their town. Their legal review resulted in a town decision to avoid continued litigation after the decision of the Surface Transportation Board in the matter and to work with the railroad toward a mutually agreeable operating plan to reduce risks and other impacts to the residents of their town. An industrial facility is rarely a positive for any town. They found a way to make it work. Unfortunately we have one in the middle of our town and we need to make it work to minimize its impacts to our citizens.

    In response to the quote “But I have heard no principled or practical or consequential reason to reject the opportunity to pursue a no-cost appeal”, there is a cost and it may prove to be substantial.

    Continued success in court by VT Railway reduces any leverage that the town has to work toward better co-existence wit the VT Railway facility. Once the legal track has ended the town is at VT Railways mercy on other issues impacting people in our town, including traffic and noise. In addition, in Judge Sessions ruling, “Railway would certainly have recourse if it is subjected to frivolous litigation related to its transloading facility in the
    future.” What is the potential cost if the railroad sues the town for continued frivolous litigation?

    I have an thought, if this is a truly no-cost appeal let the Selectboard members that voted to continue the litigation agree to be personally responsible for any financial cost above the $20k, including defending the town in any subsequent lawsuits from VT Railway or other parties.

  2. Sean Moran   January 19, 2018 at 7:49 pm

    Amen times a thousand! Well thought out and presented Mr. Andrus..


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