A 30-minute private conversation with the town’s lawyer was all it took Tuesday night for the Shelburne Selectboard to decide it is time to end the costly, unsuccessful legal battle regarding Vermont Railway Inc.’s new salt storage facility in town.
“This is not an evening to look back as much and entirely as this is an evening to look forward,” said Selectboard Chair Jerry Storey.
His comment came after the board huddled in executive session with Town Attorney Claudine Safar and Town Manager Lee Krohn to discuss the March 7 decision by the U.S. Court of Appeals for the Second Circuit in New York City. The court again ruled in favor of the railroad.
After three previous decisions in U.S. District Court in Burlington in 2016 and 2017, the town in early 2018 appealed in a case where it sought to regulate the new industrial development under an ordinance to govern handling hazardous materials.
The railroad’s two large storage sheds sit just west of U.S. Route 7 north of Shelburne village, close to the banks of the LaPlatte River. Together they can hold up to 80,000 tons of road salt delivered by rail and later trucked to customers around Vermont.
Although the facility received several state environmental and transportation permits, it was built with no local zoning review which the town challenged in federal court. The railroad prevailed based on the Interstate Commerce Commission Termination Act which governs rail commerce and exempts rail projects from local regulation.
The town’s last attempt to impact the facility was its adoption of a hazardous materials ordinance in late summer 2017. The appellate court recently agreed with a decision in December 2017 by Senior Federal Judge William K. Sessions III who ordered the town not to enforce the ordinance against the salt operation. Sessions said the ordinance targeted the railroad and that the town did not have the authority to take such action under federal preemption rules.
The selectboard decided Tuesday to accept the decision in the appeal as the final chapter in a legal fight that’s cost the town more than $516,000.
“We are not going to pursue an appeal of this decision,” Storey said, followed by applause from the audience of about 20.
Storey called the decision a consensus decision among the four members present — board member Dr. Colleen Parker was not in attendance but joined by telephone later in the meeting.
Words of thanks and critique
Several town residents in the audience addressed the board. John Saar, a critic of the litigation, began with a quip: “You stole my thunder,” getting a laugh in the room. Saar then called for an apology to Vermont Railway President David Wulfson.
“What has occurred in this long scatterbrained feud is a blemish on the town’s history and baffling way to waste half a million dollars,” Saar said. “Saying we’re sorry would be a good start.”
Chris Boyd, a 2018 candidate for selectboard who opposed the litigation, expanded on Saar’s suggestion to include former selectboard member Dr. Josh Dein.
“Mr. Wulfson and Josh were both treated less than cordially. They should get some sort of written apology,” he said.
Boyd also suggested that the selectboard review the hazardous materials and trucking ordinances that town officials either wrote or revised in 2017 during the salt-shed dispute.
Saar also suggested town officials audit the legal bills in the case and resident Linda Riell suggested that the town consider hiring a different law firm in the future, one that shows “a willingness to work things out amongst people who have differences rather than encouraging lawsuits.”
Selectboard member and attorney Mary Kehoe defended the town’s choice of legal counsel throughout the contentious case.
“It’s tempting to kill the messenger. You have to remember the lawyer is acting as an agent for his or her client and is not the principal or decision-maker,” Kehoe said. “Firing the law firm isn’t necessarily a remedy to the wrong that a lot of people feel which was the decision-making at this table… Sometimes a lawyer has to deal with the deck she’s dealt.”
Kehoe said she believes the town’s legal bills were valid.
“My own personal review left me satisfied that there was no overbilling,” she added.
Storey said there is no plan to audit the legal bills.
“If you are busy finding fault you can well full find it with the selectboard, which is elected, and the remedy and correction for those are at the next election,” Storey said. “This is an evening to draw the curtain and anticipate a new day tomorrow under very different circumstances given an experience of an issue that for some of us has run now three-plus years.”
Turnover in leadership
Of the five current board members, most have joined the group late in the salt-shed controversy. Parker is the only one who was in office in late 2015 when the railroad announced its plans for the project, touching off a firestorm that included public demonstrations, packed selectboard meetings and multiple ethics complaints. In addition to the lack of local regulatory review, project opposition also included worry over potential environmental impacts of the facility on the LaPlatte River as well as noise and truck-traffic concerns.
In early 2017, several selectboard members even led an unsuccessful attempt in Vermont Superior Court to have Dein removed from the board after he questioned board strategy in the case. Dein kept his seat but only after promising to recuse himself from all further discussions in the matter, leaving the town with just four selectboard members to decide how to proceed.
In hindsight, Saar said he appreciates the role Dein played.
“We didn’t understand while it was going on, but we all know now that Josh Dein served a terribly valuable purpose for the board and for the town by speaking up in the face of hostility from the former chairman of the board, so thank you, Josh.”
Dein was not in attendance Tuesday. His term ended on Town Meeting Day this month and he did not seek re-election. Mike Ashooh ran unopposed for that seat on the board.
Several other key officials who led the town’s fight to rein in the project have since left the public stage:
Former board Chair Gary von Stange did not seek re-election in 2018; Mary Kehoe ran unopposed for that seat.
Former vice chair John Kerr resigned in October 2017 lamenting “incivility that has been rampant against individuals in town government and the divisiveness that now lays over the residents of Shelburne.” Jaime Heins was appointed to Kerr’s seat and has since won re-election.
Joe Colangelo, town manager during much of the dispute, took a new position in Massachusetts nearly a year ago. Krohn replaced him.
The soft-spoken Storey rode out the tumult and became chair last March; Heins is vice chair.
Fire-Rescue project progress
In a second executive session, the board discussed the upcoming purchase and sale agreement regarding the site along Shelburne Road that may become the home of a new station for Shelburne Volunteer Fire and Shelburne Rescue departments.
Voters earlier this month approved spending up to $25,000 of tax money and an equal sum from the ambulance fund and entering an agreement with the independent grocery chain Healthy Living. The company plans to purchase 4.8 acres in the Rice Lumber development at the intersection of Shelburne Road and Longmeadow Drive for a new store with room to subdivide and have the town build the new fire and rescue facility.
The approved funds will be used to examine the site’s suitability for development, acquire permits and subdivide. If the site clears those hurdles, voters would be asked next March to spend up to $650,000 to buy the town’s share of the property.
The board expects to sign the agreement with Healthy Living next month. The board also established a steering committee led by Krohn to oversee the first phase of the project: Fire Chief Jerry Ouimet and Rescue Chief Jacob Leopold; community members Chris Boyd, Doug Merrill and Catherine Collette; selectboard member Mike Ashooh.