Omya rail spur work could begin in 2013

MIDDLEBURY — Vermont Railway officials on Monday confirmed plans to acquire private and public land along the corridor of a proposed 3.3-mile-long rail spur that would link the Omya quarry off Foote Street in Middlebury with the main line west of Otter Creek. They hope to start building the project during the spring of 2013.
To that end, Vermont Rail has formed a new entity, “Otter Creek Railroad,” to take the lead on a project estimated to cost upwards of $30 million and last two construction seasons.
Plans call for a rail route that would include an at-grade crossing of Halladay Road; either bridges or underpasses at Lower Foote Street and Creek Road; and an underpass for Route 7. The project would call for around 2,050 feet of rail elevated on a trestle, including a bridge spanning the Otter Creek.
The primary beneficiary of the project would be Omya, which is seeking a rail alternative to move the calcium carbonate it mines in Middlebury to a processing plant in Florence, a task that currently requires many truck trips down Route 7 from Middlebury through Brandon. But the proposal also includes plans for a 2.2-acre trans-load facility to enable other businesses to better access freight rail service.
The proposed spur has already cleared some major bureaucratic hurdles. The project will not be subject to review under the Act 250 development law, noted Middlebury Town Planner Fred Dunnington.
Early last year, the Federal Highway Administration determined the project could meet federal environmental standards. That decision affirmed many of the findings in a 2008 state/federal “Environmental Impact Statement” review of the potential impacts of the project.
Buoyed by those results, Otter Creek Railroad this month released a tentative project timetable that calls for:
• Application for a loan through the federal Railroad Rehabilitation and Improvement Financing program that is administered through the Federal Railroad Administration. The loan approval process usually takes six to nine months, according to David Wulfson, president of Vermont Railway and Otter Creek Railroad.
• Detailed project design to begin later this year, followed by bidding and construction starting in 2013, with potential completion during the fall of 2014.
“Our intention is to do this openly, above-board and to keep the information flowing as best we can,” Wulfson told a group of Middlebury neighbors of the project. They gathered at Rosie’s Restaurant on Monday to learn, among other things, how their property would be affected.
Dunnington counted nine property owners — including the town of Middlebury and two conservation organizations — that would face a direct impact from the rail spur. Still others would experience a visual impact from the spur and the trains that will travel on it, but they will have no legal recourse, according to attorney Scott Jaunich of the firm Downs, Rachlin, Martin PLLC, who has been retained by Otter Creek Railroad. Jaunich is a specialist in right-of-way and eminent domain matters, having recently represented the Vermont Electric Power Co. in land acquisition matters. He has also represented property owners in eminent domain cases.
Eminent domain is the right of the government to take, or authorize the taking, of private land for public good. The private landowners are supposed to get a fair price for their property.
“Our hope is that we can negotiate acquisition for the corridor for the rail expansion with all the property owners,” Jaunich told the land owners. “We will negotiate; we will have appraisals done. If necessary, we will litigate.”
Jaunich said eminent domain is an avenue that will be open to the railroad if negotiation efforts fail. That eminent domain process, governed by Vermont statutes that are more than a century old, would first call for the Vermont Supreme Court to create an independent three-person commission to determine appraisal of the property. That commission would be made up of one Middlebury resident and two county residents. The commission’s appraisal can be appealed to Addison County Superior Court, which would appoint its own commission to determine property value.
Property owners’ legal recourse beyond that point remains murky, according to Jaunich, though some neighbors appear willing to test the waters.
Several area residents — particularly those near Halladay Road — reiterated their opposition to a rail line they said would in some cases go right through their backyards. Some neighbors are also opposed to the notion of a “silent crossing” on Halladay Road to accommodate the spur. Such an at-grade crossing — for which the Otter Creek Railroad will have to apply for special state permission from federal and state officials — would require construction of special sensor-activated gates, signs and other infrastructure, noted Dunnington. Instead of a train blowing its horn to warn motorists, a bell would tone upon arrival of the train.
Some town officials are concerned about not only the disruption to the neighborhood of an at-grade crossing, but also the potential safety issues if the gates fail.
Dunnington is instead hoping railroad officials consider revisiting a proposal to relocate a portion of Halladay Road to Route 7. This new, relocated trunk of Halladay Road would begin just before the rail spur location and extend roughly 2,200 feet to Route 7, where it would exit between Foster Motors and the Connor Homes building.
Dr. Jessica Racusin said she and her husband moved into their home on Halladay Road around six months ago anticipating more quiet surroundings.
“When we moved in, the Realtor said, ‘They’ve been talking about (a rail spur) for 20 years; maybe it’s going to happen, maybe not,’” Racusin recalled. Soon after settling in, Racusin said she learned that some of her land “might be seized by eminent domain and they might run a road through your backyard.”
Halladay Road resident Mary Lower also voiced her displeasure with the rail spur plan.
“I’m really unhappy with this,” Lower told Vermont Railway officials. “This is not why we moved to Vermont. If someone came and put a railroad through your yard, you wouldn’t like it. I want you to realize you are dealing with people’s lives, their investment, their children and their children’s health. We’re not happy with the town; we’re not happy with the representatives who aren’t representing us. I’m ready to leave Middlebury if this goes through.”
Holly Hathaway also resides on Halladay Road. She has hosted neighborhood gatherings regarding the rail spur proposal, which she sees as becoming more and more inevitable.
“It is going to be 150 feet from my barn,” Hathaway said.
“I think once this (project) happens, people’s jaws are going to drop and they will say, ‘What happened?’”
Like other neighbors, Hathaway has hired legal counsel to review her options. The news for the neighbors isn’t great right now, she said.
“We have been advised by lawyers that it would take an act of God and lots of money to stop it,” Hathaway said.
“We all hoped it would go away,” she added, “but if it has to happen, we have to find a way to live with it.”
Dunnington said construction of the rail project is shaping up as a major undertaking. He pointed to maps showing various streams and wetlands that lay within the rail spur route. He added some municipal water and sewer lines will have to be relocated in the project at a cost of many thousands of dollars.
“In my opinion, the construction impact is going to be greater than the operation of the spur itself,” Dunnington said.
Reporter John Flowers is at [email protected].

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