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Critics of Middlebury rail project table lawsuit plans

MIDDLEBURY — Opponents of a $40 million plan to replace Middlebury’s two downtown rail bridges on Tuesday withdrew their threat of a lawsuit to delay the project after they were informed by state officials that preliminary work to remove trees from the future construction area would be postponed until next month, at the earliest.
On Nov. 17 VTrans officials announced plans to selectively cut trees along the length of the project corridor, in conjunction with a proposal to relocate endangered bat species that live near the bridges. Officials at that meeting said the work could begin this month.
Bristol attorney Jim Dumont on Dec. 2 wrote to Vermont Transportation Secretary Jim Cole promising court action unless the agency agreed to not cut trees, begin construction or enter into construction contracts until it had obtained  a zoning permit and an environmental assessment of their plan to replace the Merchants Row and Main Street rail bridges.
That announcement raised concerns among Dumont’s clients, who have aired a myriad of potential problems about the estimated four-year project, including that it should to be subjected to federal environmental, historic preservation and Endangered Species Act reviews, and that its proposed drainage system would not properly contain potential hazardous waste spills.
Opponents, led by Edgewater Gallery owner George Dorsey, are urging VTrans to simply replace the two bridges at their current height of around 18 feet and revisit the notion of increasing vertical clearance for the spans if future rail traffic warrants.
Current plans call for the bridges to be replaced with a concrete tunnel that would provide 21 feet of vertical clearance in anticipation of double-stacked rail cars. Dumont’s clients dispute VTrans officials’ assertion that the bridges must have 21 feet of vertical clearance.
Dumont, along with his Dec. 2 letter, sent Cole another five documents outlining his clients’ concerns about the design, permitting and scheduling of the proposed project. A link to those documents can be found at the bottom of this story.
Dumont and his clients continue to wait for answers to a series of questions about the project that they sent to Cole on Oct. 31. And as the Addison Independent went to press, the Middlebury selectboard Wednesday evening was slated to consider an Open Meeting Law complaint filed by Dumont on behalf of his clients, alleging the board improperly discussed in secret — and eventually signed — some rail bridge project-related contracts. The plaintiffs contend, among other things, that they should have been allowed input on those contracts before the board considered them.
But the specter of imminent legal action against the project has subsided, at least for now, Dumont confirmed. It came in the form of a Wednesday, Dec. 7, letter to Dumont from Daniel Dutcher, Vermont assistant attorney general.
The letter, written on behalf of Cole, states, “Please be advised that VTrans does not plan to engage in any tree clearing or enter any construction contracts relating to the above-referenced project in 2016 … VTrans will not proceed with contracting or construction until it has confirmed that the project will not result in unwarranted impacts.”
In addition, Dutcher suggests a meeting between Cole and Dorsey, in an effort to “resolve Mr. Dorsey’s objections to the project out of court,” the letter states. “Resolving Mr. Dorsey’s objections as soon as possible may help avoid additional project delays that could lead to unintended consequences that may not benefit the town of Middlebury or its residents.”
Dorsey confirmed on Wednesday that he would welcome the suggested meeting with Cole.
Bruce Hiland, another Dumont client and principal of the prominent Battell Block property in downtown Middlebury, also saw promise in the Dutcher letter.
“I am delighted that VTrans has put any further action on this project on hold,” he said. “I look forward with great interest to VTrans’ definition of what constitutes ‘unwarranted impacts’ on our community.”
Middlebury officials recently compiled a list of what they believe could be some of the unintended consequences of litigation against the bridge project. They include:
•  Potential failure of one or both bridges and their replacement with temporary bridges for an unknown amount of time.
•  Further deterioration of track conditions.
•  Another derailment due to poor drainage and deteriorating track conditions.
•  Possible redirection of Federal Highway Administration funding that has been earmarked for the Middlebury project.
Officials also fear that suspension or re-design of the Middlebury project could result in the loss of some side benefits the town expects to realize through the current plan, on the state’s dime. Those include the undergrounding of the electric and telecom utilities at the entrance to Marble Works, reconfiguring Printers Alley and Triangle Park, and replacing and upgrading town sewer and storm water lines.
“There’s an opportunity to do something really good for the town,” Selectman Victor Nuovo said. “We have a downtown area that could become a pedestrian-friendly shopping area, more so than it is now.”
But above all, Nuovo believes a delay would increase the potential hazards of having two substandard bridges. State transportation officials have already said that while they don’t think the spans are in imminent danger of collapsing, they have secured two temporary bridges to move into place within seven days if the current ones are deemed unsafe.
“A delay simply increases the hazard,” Nuovo said. “I think we have to address these two hazards, and doing them together is probably the most reasonable way to go — without delay,” Nuovo said. “Everyone has a right to raise legal issues and cause delays, but I wish they wouldn’t.”
Middlebury, he said, has on numerous occasions studied alternatives to the current rail line through the downtown. Those alternatives includes easterly and westerly bypasses that planners deemed too expensive and problematic, as a result of permitting and right-of-way acquisitions.
Critics of the project said they, too, want to see the two bridges replaced, albeit with a different approach. They are happy that, for now, VTrans officials have agreed to pump the brakes on what they have acknowledged to be the most complicated bridge construction project they have ever faced.
“The primary issue always has been, and remains, safety,” Dumont said. “The two bridges are not safe.”  
Reporter John Flowers is at [email protected].

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