Conflict Between Shelburne And Vermont Railway Heads To Court

Jan 30, 2016

A fight between the town of Shelburne and Vermont Railway made its way to the courts this week. At issue is a railroad spur, truck transfer and storage facility the railway plans to build in town.

The town of Shelburne filed a lawsuit against Vermont Railway in state Environmental Court this week, in an attempt to stop the railway project until it gets a local zoning permit.

Vermont Railway responded by filing a suit in federal court, saying it’s regulated by the federal Surface Transportation Board and doesn’t have to get local or state permits.

Town officials say there is a lot Shelburne doesn’t know about the intermodal facility Vermont Railway plans to build off of Route 7, just north of Shelburne Village. Town Manager Joe Coleangelo told a packed select board meeting Tuesday night that his first priority is to share the information he does have with people in town.

"Because, potentially, this could have been done and competed without any real public knowledge," Colangelo explained at the meeting. "It wouldn’t have had to go through the DRB process like every other project in town."

The railway bought a 32-acre lot behind Harbor Industries at the end of last month and began clearing the property. The railway is using about 19 acres of the property for a project that will include an access road, spur track, two salt storage sheds, a fleet fueling island, an office building and parking. It will replace a similar facility in Burlington, but with about twice the salt storage capacity.

The Shelburne project would replace this salt storage operation off of Flynn Ave. in Burlington.
Credit Amy Kolb Noyes / VPR

Road salt that is brought in by rail would be stored at the facility and loaded onto trucks to be delivered to towns and other users across northern Vermont. Dean Pierce, director of planning and zoning for the Town of Shelburne, says the railroad's property is zoned for industrial use, but that doesn’t mean it's necessarily appropriate for this project.

"On one level, people might wonder what the fuss is about, because the railroad is planning on conducting an industrial use in an industrial zone," Pierce told VPR. "But that kind of falls flat when we stop to think about the kind of evaluation projects usually get."

Vermont Railway President David Wulfson is also a Shelburne resident. He presented his plans to the town select board earlier this month. But town officials say that if anyone other than the railroad were building on this lot, they would have to get a local zoning permit and go through the state’s Act 250 land use process.

That’s where the town’s lawsuit comes in. It forces the railway to prove it is exempt from local zoning. And the railway is making its case for preemption through the filing in federal court.

"When you're dealing with federal preemption it's a really big deal." - Rep. Kate Webb

Wulfson is not speaking publicly on the matter. He canceled a scheduled interview with VPR, stating his attorneys advised him not to talk about the project while litigation is pending.

At Tuesday’s select board meeting, officials and residents raised a number of concerns including increased truck traffic, noise, public safety and a recreational easement the town has on the property. Water quality issues also came up regarding the potential impact on Lake Champlain and the nearby LaPlatte River. And town officials say activities on the lot could affect rare natural communities in the nearby LaPlatte River marsh.

Several of Shelburne’s state legislators were also at the meeting on Tuesday. Rep. Kate Webb said there’s not much state lawmakers can do in the face of preemption.

"The Department of Environmental Conservation is evaluating the preemption issue," she said. "I will tell you, preemption is a big stick. Those of us that have worked in state government know that when you’re dealing with federal preemption, it’s a really big deal."

Webb also warned the town not to be reactionary, saying, "One thing that I think is troubling is, I think that the town and Mr. Wuflson got off on the wrong foot. And I think we now have a game of tit for tat."

Vermont Railway cut off public use of this Shelburne parking lot after the town filed its lawsuit.
Credit Amy Kolb Noyes / VPR

In addition to filing in federal court, Vermont Railway had another reaction on Tuesday. The company blocked off a parking area that had been open to the public, and was commonly used as a cut-through for emergency responders avoiding Route 7 traffic.

Webb encouraged the town to try and restart the conversation with Wulfson rather than ramp up the conflict.

Meanwhile, on Thursday, the Vermont Department of Environmental Conservation sent a notice of alleged violation to Vermont Railway ordering all work on the project be stopped until the project receives a state construction permit or other state authorization.