Shelburne Holds Out Hope For Future Involvement After Vermont Railway Ruling

Jul 5, 2016

A federal district court ruling issued last week by U.S. District Judge William Sessions cleared the way for Vermont Railway to develop a rail spur and move its road salt transportation and storage operation to the town of Shelburne.

The judge ruled the Interstate Commerce Commission Termination Act (ICCTA) preempts the town's assertion that the project needs local zoning approval prior to construction. However, the decision did not uphold that preemption for all local zoning regulations that might apply to the project in the future.

The ruling notes that plans for the Vermont Railway project are not finalized and, therefore, the town can not currently specify what zoning regulations might be applied to the project. So the court left the door open as to whether future town enforcement efforts can be federally preempted. 

In his ruling Sessions states, "The court reserves judgment on the question of whether the ICCTA preempts other zoning regulations derived from the town’s police powers that relate to the operation of the railway’s proposed facility. When the railway has finalized its plans for development, and when the town has indicated precisely which zoning regulations it intends to enforce, the court will determine whether those regulations can survive ICCTA preemption pursuant to the police power exception outlined above."

In court, Shelburne argued the ICCTA does not preempt the town from regulating a number of impacts, including traffic, noise and environmental concerns regarding wetlands and public waterways.

Shelburne Select Board Chairman Gary von Stange  issued a statement on town letterhead after Wednesday's court ruling. His statement began:

The key portion of yesterday’s decision is the Court’s agreement with the Town that not only does Shelburne 'retain certain police powers which protect public health and safety,' but that 'the Court agrees that the Town cannot determine whether or how its municipal regulations may apply to the Railway’s proposed project without knowledge of the project’s final plans.' The Court reasoned that because the Railway’s plans have evolved so dramatically and still are not finalized, the Railway’s conduct has 'prevent[ed] the Town from articulating how it intends to exercise its police powers.' Accordingly, the Court 'reserves judgment on the question of whether the ICCTA preempts the Town’s regulation of the aforementioned activities.'

The statement went on to credit the town's lawsuit with Vermont Railway's decision to scale back plans for the Shelburne property. "It was through litigation that the town achieved an important goal, which was to reduce the scope, scale and impacts of the project," the town said. "The case continues and the town is encouraged that the court specifically invited the town to return to court when the project has been finalized to address which regulations are applicable to the project."

Vermont Railway also issued a statement in the wake of the ruling. The company commented, "Despite six days of evidentiary hearings, the court determined the town could not show that development of the new facility was likely to harm wetlands, endangered or threatened species, or the adjacent LaPlatte River corridor. The court specifically enjoined the town from enforcing any regulation that prevents the railway from constructing its facility."

Vermont Railway spokesman Selden Houghton added, "We are pleased the court affirmed that ICCTA preemption applies to this project. We look forward to completing construction and serving our Vermont community from this new facility this coming winter and to working with the town to address remaining community concerns."