Middlebury OKs rail deal again — with opposition

MIDDLEBURY — The Middlebury selectboard on Tuesday affirmed two key agreements with the Vermont Agency of Transportation governing the looming $40 million replacement of two downtown bridges, and also agreed to hire an independent engineer to review the project plans to make sure they are sound.
It was on Oct. 25 that the selectboard originally endorsed a modified grant contract and a finance/maintenance agreement with VTrans governing what is a four-year plan to replace the rail bridges on Main Street and Merchants Row. Work will include improving the rail bed and installing a drainage system. Preliminary work is expected to begin early next year and last into 2020.
Some downtown merchants and property owners have voiced concerns about the scope of work and how it will affect commerce and the adjacent Otter Creek, as well as public health and safety. Some of the project critics have hired an attorney, James Dumont, to question VTrans’ plans and advocate for a smaller-scale replacement of the two deteriorating bridges.
Dumont on Dec. 2 filed an Open Meeting Law-related complaint against the selectboard, claiming the panel on Oct. 25 had inappropriately gone into executive session to discuss the two proposed agreements with VTrans related to the bridges project. Among other things, Dumont alleged the board failed to specify the topic of the secret meeting and why discussing it in private would place the community at a disadvantage. And failing to reveal the subject, he argued, precluded his clients from providing input prior to the board’s vote to ratify the agreements.
After receiving legal advice, selectboard members argued they acted properly by going into executive session on Oct. 25. But the board on Tuesday agreed to revisit ratification of the agreements “because reasonable minds could differ and because the selectboard would prefer to err on the side of openness,” according to a Dec. 7 letter from the town to Dumont.
On Tuesday, Dumont reiterated his concerns about the proposed agreements with VTrans and urged the board to wait until Transportation Secretary Chris Cole has responded to a series of project concerns that Dumont sent the secretary on Oct. 31 on behalf of his clients. Cole has already postponed some project-related tree cutting that was supposed to have begun this month.
“I submit to you that the Open Meeting Law issue gives you time to make a considered decision to wait,” Dumont told the board. “You don’t have to decide anything right now. All you have to do is decide right now that you’re not going to ratify that agreement.”
Selectwoman Donna Donahue agreed with Dumont.
“I think it’s a mistake to make decisions now,” Donahue said. “I want as much information as possible before I sign an agreement.”
But a majority of the board said they believed the agreements had been properly vetted and discussed — with a new VTrans project team that they said had earned their trust.
Middlebury selectboard Chairman Brian Carpenter announced VTrans officials said they would make a friendly change in the agreement governing the amount of time the town has to review bridge plans before signing off on them. The agreement has specified a three-week deadline for the town to review plans; that has now been changed to a “reasonable time period,” according to Carpenter.
“I think it comes down to that level of trust,” Carpenter said after Tuesday’s meeting. “(VTrans) doesn’t have an obligation to take into account our concerns. It’s a state project. But they’ve shown, to the contrary, that they are interested in bending over backwards to do the right thing.”
Selectwoman Heather Seeley said, “I guess I was confortable with (the agreement) the first time; I’m ready to ratify it right now.”
Selectman Victor Nuovo maintained that signing the agreements on Tuesday was in the town’s best interest.
“We’ve been talking about this for a very long time,” he said of the need to replace the two spans.
Nuovo added he believed it was essential not only to replace the spans soon, but to do it in concert with the rail bed and drainage improvements. And he reiterated his belief that the town will be able to leverage other downtown improvements — such as the undergrounding of utilities — through the project as currently proposed.
Selectman Nick Artim agreed.
“A basic, fundamental direction has been established,” he said of the current construction plans. “I think the community is on board.”
Ultimately, the board voted 6-1, with Donahue opposed, to re-ratify the Oct. 25 modified grant contract and the finance/maintenance agreement with VTrans.
The board also announced that the town and Middlebury College will commission a third-party engineering study of VTrans’ plans for replacing the two downtown bridges. Carpenter said the town had originally allocated $5,000 for its share of the review, with an equal commitment from the college. But officials received a more recent estimate it will take $50,000 to do a thorough job. The town’s share will remain $5,000 and college President Laurie L. Patton has agreed to raise the remaining $45,000 to cover the bill, Carpenter said.
“To ensure that we have a quality, third-party review, (Patton) is committed to fundraising to fill the gap,” Carpenter said.
He added VTrans is on board with a third-party review of its plans.
“Wayne Symonds (manager of VTrans’ Structures Program) is committed to doing the right thing, if something has been overlooked,” Carpenter said.
Dumont on Wednesday questioned the wisdom of the selectboard’s decisions to ratify the project contracts with VTrans. That action, he believes, now ends the community’s right to seek legal relief from any aspect of the project it might deem unpalatable.
“All the town is left with now is the right to submit comments, but no right to do anything if the state decides for any reason … not to agree with the town’s comments,” Dumont stated in an email to the Independent. “As the trustees of the town’s interests, the selectboard has departed from its responsibilities in also terminating that set of rights.”
Dumont added the board’s decision on Tuesday means that “(George) Dorsey, (Bruce) Hiland, the Atlantic States Legal Foundation and other citizens have the right to go to court to challenge any decision by VTrans. The town does not.”
“Middlebury’s selectboard has handed over to the secretary of transportation the duty that, under the town’s charter, is the principal duty of the selectboard — the duty to safeguard the interests of the residents of the town,” he concluded.
Reporter John Flowers is at [email protected].

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