Getting ‘railroaded’?

MIDDLEBURY — For 18 years, Holly Hathaway and her family have lived in a pastoral Shangri-la. Their Halladay Road home features panoramic views of the majestic Adirondacks to the west and is surrounded by fertile green pastures that form an agrarian quilt on display from their backyard swimming pool.
But that idyllic portrait is beginning to crack — not only for the Hathaways, but also for several of their neighbors who are facing the prospect of a 3.3-mile rail spur bisecting their neighborhood. The new spur — which would serve the nearby Omya Inc.’s calcium carbonate quarry and potentially other Middlebury businesses — has gone from a mere concept 15 years ago to financing and potential construction within the next two years.
It is a project that provides a freight-hauling alternative to the current legion of trucks on Route 7 toting loads of the mineral to Omya’s plant 20 miles south in Florence. But it is being sharply criticized among neighbors who contend they are being “railroaded” by corporate interests, citing a very old eminent domain statute that favors railroads over residential property owners.
“It is absolutely insane they can march in there and overrule everything they want — conservation, property rights, everything,” Dr. Jessica Racusin, one of Hathaway’s neighbors, said of the project. “It’s absolutely outrageous.”
Plans call for a railway that would include an at-grade crossing on Halladay Road; grade-separated crossings of Lower Foote Street and Creek Road; and an underpass for Route 7. The project also calls for around 2,050 feet of rail elevated on a trestle, including a bridge spanning Otter Creek.
The primary beneficiary of the project would be Omya, which is seeking a rail alternative to move calcium carbonate from its quarry off Foote Street in Middlebury to its processing facility in Florence, a task that currently requires more than 100 truck trips daily down Route 7 through Brandon. The proposal also includes plans for a loading facility near the quarry to enable other businesses to better access the freight rail service.
Otter Creek Railroad (OCR) — a stand-alone company spun off by Vermont Rail Systems in 2003 — is assembling final engineering plans for the rail spur, which would essentially link the Omya quarry with the main line west of the Otter Creek. Once final plans are in place, OCR will apply to the Federal Rail Administration’s Railroad Rehabilitation & Improvement Financing program for a loan to finance the project, currently estimated at more than $30 million.
Early last year, the Federal Highway Administration (FHWA) determined the rail spur project could meet federal environmental standards. That decision affirmed many of the findings in a 2008 state/federal “Environmental Impact Statement (EIS)” review of the potential impacts of the project.
While the plan went through the lengthy (federal) EIS process, it will not be subject to Act 250, a 41-year-old state law that measures development proposals on 10 criteria, including potential impacts on the environment, aesthetics and community life.
News that the rail spur plan would not be subject to Act 250 was only confirmed in Jan. 28, 2010, as part of the final EIS Record of Decision on the project, said Middlebury Town Planner Fred Dunnington. He said Omya was able to join forces with the Vermont Agency of Transportation and Vermont Railway to further the project by tapping into a federal rail earmark secured by former U.S. Sen. James Jeffords, I-Vt.
As a lead applicant, the railroad can exercise eminent domain powers if it can prove public good and necessity. In this case, said Vermont Rail Systems CFO Mary Anne Michaels, the public good comes in the form of moving an estimated 70,000 annual trucks trips from Route 7 south to the rail line and “decreasing congestion and the environmental impacts for all who travel on Route 7.”
The trucks in question involve Omya and its calcium carbonate. Michaels confirmed that Omya is the only business formally signed up to use the rail spur at this point, but said OCR is recruiting other businesses — such as Green Mountain Beverage, which will soon occupy an adjacent property — to join in its use.
“We have every intention to grow,” Michaels said.
The state’s railroad eminent domain statutes (Title 5, Sections 3518 through 3536) are patterned after federal law and date back to the 19th century, when trains were sweeping westward.
In cases where a railroad and property owner can’t agree on a purchase price for land, state law calls 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.
The eminent domain law also extends to conserved property. The proposed spur route would affect conservation easements held by the Middlebury Area Land Trust and the Vermont Land Trust, officials from those organizations confirmed.
Middlebury attorney Fritz Langrock of the firm Langrock, Sperry and Wool is representing some of the neighbors of the proposed rail spur. He has litigated many eminent domain cases and is reviewing potential legal challenges that could be filed on behalf of his clients.
One potential option is to contest Omya’s contention that the project is necessary and in the public’s best interest. He noted that if the residents lose the “necessity” argument, the courts are likely to allow construction to begin during negotiations over compensation for land taking.
 “It is a very strange and archaic statute, as far as I can tell,” Langrock said of the eminent domain law applying to railroads. “In the normal eminent domain statute for roads and power lines in highway cases, the Transportation Board has to determine necessity and compensation, and both of those are appealable to (Vermont) Superior Court and ‘necessity’ is a legal opinion the judge decides. In compensation, you have a right to a jury.”
He said those rules don’t apply in the cases of railroads. But he believes his clients have a constitutional recourse.
“You can only take property for public use,” Langrock said. “You actually have to prove, through the Vermont and federal constitutions, that it is for public use.”
Rep. Paul Ralston, D-Middlebury, has looked at the state’s railroad statutes, studied the rail spur decision and spoken with Vermont Agency of Transportation officials — including rail Chief Joe Flynn — to try to find some remedies for his constituents living near the project.
Ralston said amending the rail statute would do little good, as he has been informed that in cases where Vermont law and federal law conflict, the federal rules carry the day.
He added the official Record of Decision issued last year “legitimizes the project to go forward. It has been approved. There is no longer any question about that.”
At this point, Ralston said the town, neighbors and everyone else who figures to be affected by the plan should try to influence how the project is built.
“Now is an opportunity to engage the railroad for the best possible outcome, given the railroad has broad powers under federal law, including eminent domain,” Ralston said.
While the entire project will not have to go through Act 250, Ralston is hopeful that an individual portion will face state scrutiny — the proposed Route 7 underpass. The state will serve as a pass-through for federal money for that undertaking, something that Ralston said should trigger state and local scrutiny.
Meanwhile, neighbors are concerned about the impact a rail spur would have on their property values and neighborhood.
The Hathaways have lived at their home at 484 Halladay Road since 1993. They own 11.9 acres, some of which is protected through conservation easements.
“We knew we were buying protected property,” Hathaway said. “They were saying nothing could be developed out here except forestry or agriculture.”
She first got an inkling of the prospect of a rail spur around 1998.
“I was sitting in my kitchen and looked out on my property and there were people walking around my yard with several cars parked along the side of the road,” Hathaway recalled. “I was a little alarmed and I asked them what they were doing, and they said they were from the Vermont Agency of Transportation and Omya. This was the first I heard of the rail spur.”
At that point, Hathaway said, no project plans had been committed to paper. It was only at a subsequent meeting in Middlebury, Hathaway said, that she saw conceptual drawings of potential rail spur routes. To Hathaway’s chagrin, the leading option would turn out to be the one traveling closest to her home.
It’s a route that Hathaway said would run just 400 to 500 feet from her front door, require the taking of some of her horse pasture, and mar their views from east to west. Only views from the north side of the home would remain unobstructed by train travel, she said.
The Hathaway family said it has received no contact from rail, state, federal or corporate officials about property acquisition or compensation for potentially taking land. Otter Creek Railroad officials did sponsor a neighborhood meeting at Rosie’s Restaurant in Middlebury this past February at which eminent domain was discussed in general terms.
“No individualized contact has been made,” she said.
Hathaway said she has been told that neighbors can anticipate trains using the spur four trips per day, six days per week. She is concerned that the proximate train trips would not only affect the family’s outdoor recreation, but also take a physical toll on their 224-year-old house that has been nominated for the National Register of Historic Places.
“It is going to crack,” she said of the impact of train travel on the home.
“It will be a big change,” she added “The noise — I’m not sure how we’ll deal with it.”
Racusin and her husband moved into their home last year, seeing it, ironically, as a more pastoral refuge compared to their previous residence in Middlebury village.
“We wanted to get away from town, to a place that was more peaceful,” Racusin said. “We looked at the place and it was really nice. We have five dogs and we wanted more room for our dogs to run around.”
She said the previous owners of the home acknowledged the prospect of a rail spur, “but made it sound like the conservation easement would protect us.”
Racusin said she was surprised to learn soon after moving in that the rail spur planning was far advanced, and that the preferred route involved the northern border of their 5-acre property with the prospect of trains moving with a few hundred yards of her door. Adding to her concern, she said, was a related proposal to divert Halladay Road through her property.
Like Hathaway, Racusin said the rail spur would severely affect her family’s quality of life. She added she’s frustrated with the power the railroad has to site its project in a residential neighborhood.
“They are saying this (project) is in the public good,” Racusin said. “How is this in the public good? This is in the good of Omya — one company.”
Racusin is an emergency room physician and her husband is a Middlebury firefighter. She is concerned about how the train noise — and temporary traffic stoppages at an at-grade crossing — could affect the couple’s ability to rest up and respond to emergencies in a timely fashion.
She said she also worries about the potential of a train derailing while traveling through the neighborhood.
Like others in the neighborhood, Racusin has considered her options.
“We just bought and just took out a 30-year mortgage and put the down payment on it, so I can’t really afford to move again,” Racusin said.
Bob Champlin, another Halladay Road resident, also has reservations about the proposed spur. He lives at the south end of the proposed at-grade rail crossing, which he fears could pose a safety risk, traffic delays and a noise annoyance in the form of horns and whistles if the town is unable to convince the Transportation Board to grant a “silent” crossing at the location.
Mark Perrin and his family are staring at the prospect of an elevated train trestle running along the northern fringe of their property off Creek Road. The rail spur would cut through the northeast corner of the 75-acre farm they acquired in 1990.
“There was no talk about a rail spur at that time,” Perrin said.
But that talk began soon after the family’s purchase and has grown from a concept to an approved project that has moved to the financing phase, Perrin said.
He said the elevated rail trestle and train traffic would have a big impact on his family’s property and its future marketability. The family put the property on the market eight years ago.
“No one had any interest in buying property next to a rail spur,” Perrin said, noting the potential aesthetic and visual impacts.
The Perrins have since taken their property off the market and are waiting to see whether the project actually proceeds from the drawing board to construction. Perrin said he can deal with either the build or no-build scenarios, but does not like being in limbo. The longer that limbo, the longer a cloud remains over the family’s asset.
“This isn’t a sprint; it’s a marathon,” Perrin said. “My fear is that this ends up being like the circumferential highway — it lingers forever, and we are the big losers if that happens.”
Danielle Rougeau is president of the Eddy Farm School for Horse and Rider located off South Street Extension. The farm is located near the point at which the proposed rail spur will connect with the main line. Plans call for a portion of the spur to cross the main pasture on which the farm grows hay feed for its horses.
Rougeau said the horses have grown somewhat accustomed to the train noises emanating from the main line. But she anticipates additional train noise and activity resulting from the spur, disruptions she said might affect the horses and their ability to work with riders.
Also of concern, according to Rougeau, is the prospect that officials will have to treat the rail line in the pasture with chemicals to prevent overgrowth. The application of chemicals would preclude the farm from harvesting hay for the horses, according to Rougeau.
“If we are put in a position of having to buy feed, we are not going to be able to survive that,” Rougeau said, adding, “This is going to change the nature of the surroundings quite a bit.”
Janice Stearns lives at the southern end of (1460) Halladay Road. She and her family built the home in 1985.
“I don’t think there was too much talk about a rail spur or anything else at that time,” Stearns recalled. “There was a right of way here for Vermont Marble at the time, but that was not an issue.”
Stearns said she and her husband got upset when talk of a rail spur emerged during the 1990s. They were concerned about a rail line piercing their pastoral neighborhood and the notion that such a project could trump area conservation easements and the presence of wetlands.
Stearns said one of the early rail spur scenarios would have involved some of her meadow. And though the designated track route is no longer in her back yard (it would be a mile away), Stearns remains opposed to the idea.
“I am very upset about the whole issue of eminent domain and ruining our quality of life,” Stearns said. “I’m concerned about the construction, what’s going to happen to Route 7, and whether Middlebury is going to start to look like Manchester, N.H., with all these overpasses.”
She also expressed skepticism that the presence of a rail spur would compel Omya to substantially reduce its truck traffic on Route 7, and said she has yet to see other potential, major users of the project officially commit to its use.
“All the other businesses are small scale,” she said.
Mary Lower and her family have lived at their home at the intersection of Halladay Road and Three Mile Bridge Road since 1998. They moved from New York City.
“When my daughter was three, we said, ‘We’ve got to get her out of here,’” Lower recalled. “We moved here and we were surrounded by Land Trust; we had incredible views. We thought we had moved to paradise.”
Both Lower and her husband are painters who often practice their craft on nearby Creek Road — a road they claim will be even more vulnerable to flooding if and when the rail spur is built.
“I’m disappointed in our community and our representatives for even helping this along,” Lower said.
Michaels said Omya has not ignored the neighbors, but added company officials believe it will be more productive to interact with them when and if financing comes together on the project.
“As financing comes into place and we know how much the cost is going to be, we will definitely have outreach with the neighbors and work with them,” Michaels said. “We are kind of in a lull right now with the neighbors.”
The Addison Independent asked Omya spokeswoman Linda Pleiman to describe the company’s long-term commitment to use and help finance the proposed rail spur.
In a written statement, Pleiman replied “Omya is committed to the future of our Vermont operations and we seek to use rail wherever possible. Our Vermont facility typically moves 75 to 80 percent of our finished products by rail, as rail is more economical and environmentally friendly. The use of the Otter Creek Railroad for ore transportation would allow Omya to remove 70,000 truck trips annually from Route 7.
“We are currently analyzing costs and financing options for the construction and operation of Otter Creek Railroad,” the statement continued. “We expect this process to be complete by mid-year.”
Reporter John Flowers is at [email protected].

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