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WORCESTER, Mass. – Grafton Assistant Town Administrator Kevin Mizikar and Fire Chief Michael Gauthier testified in U.S. District Court on Tuesday that they were not fully aware of the railroad’s plan to build a propane transfer terminal until late 2012, beginning the trial between the Town of Grafton and the Grafton & Upton Railroad.
An attorney for the railroad said the town knew about the plans months earlier.
Judge Timothy S. Hillman will decide whether railroad owner Jon Delli Priscoli’s operation to build a propane transfer station on Westborough Road is entitled to pre-emption rights.
During testimony with Ginny Sinkel Kremer, Grafton’s attorney, Mizikar said Delli Priscoli never mentioned his intentions for the Westborough Road parcel even after numerous site visits and board of selectmen meetings.
Mizikar said he didn’t know about the plans until November, when a resident alerted him about the site construction.
He said he and the board of selectmen also learned in November about a fire safety analysis prepared for fire marshals that detailed the size of the propane operation and how the fuel would be loaded and off loaded.
Mizikar said the report showed additional railroad tracks in different locations, which differed from a site plan that Delli Priscoli gave him.
Mizikar also said Delli Priscoli was not forthcoming in sharing the site’s trans-loader agreement without a signed confidentiality agreement. When the town refused, Delli Priscoli produced a one-page summary instead, according to Mizikar.
“We thought it would define the pre-emption claim,” Mizikar said. The town then submitted a long questionnaire to the railroad’s attorney, which was returned partially completed, he said.
The assistant town administrator was cross examined by John A. Mavricos, attorney for the railroad, who said he presented evidence that Town Administrator Tim McInerney, Gauthier, and a state fire marshal saw the propane station plans in July when they met with Delli Priscoli in the Grafton Police conference room.
“Did you ask the town administrator if he had a discussion with the railroad on the proposal?” Mavricos asked Mizikar, who responded yes. Later, Mizikar said that it was not until “late 2012” when he learned this information.
When Gauthier took the stand, he said the propane proposal presented by the railroad during that summer meeting with the state fire marshal was nothing more than “conceptual drawings.” When Delli Priscoli talked about off-loading 80,000 gallon propane tanks, Gauthier said he told Delli Priscoli to present it to the board of selectmen, create a proposal and then “come back to us.”
Kremer asked him why he didn’t notify the town, to which Gauthier said he sees many proposals but waits until official documents are produced. “It would be a time waster,” he said. He then testified he did not know of the formal plan until he reviewed the fire safety analysis.
But Mavricos asked, during cross examination, just how different the proposal was from the fire safety analysis.
“They’re similar,” Gauthier said.
“Is it fair to say, given the level of detail, this is more than just talk, but real plans?” Mavricos asked.
Gauthier said: “I thought they were still proposals. They were not stamped documents.”
The trial will continue on Wednesday at 9 a.m. in U.S. District Court.
Comments (13)
Following this article and others regarding this issue, the town selectman and fire chief were not entirely honest at the town meeting several weeks ago. They ALL knew about the propane plan way before November 2012, but did nothing to start the process to stopping this disaster back in July or even before that. SHAME on all of you. If your house and property were threatened, I am sure you all would have been all over this from the first hint.
BobH is right, the question of delays in response does not speak to the preemption argument, and yes, proposals can be thrown around, but so can a heads up.
The Fire Chief had to recognize this proposal as problematic or potentially controversial at first glance. I hope that if nothing else, procedural changes are made to ensure that everyone is given as much notice as possible when something big and cross-departmental is ... well, coming down the tracks.
is the wood pellet operation in Upton run by the railroad, or is it a separate business? Railroad cars are off loaded there on a regular basis. Trying to compare things here.
LM
The answers to your questions are in the Upton Railroad Fact Finding Committee Report - officially accepted by the Upton Board of Selectmen
and readily available on line
I for one am not for or against this. Certainly I don't want to see it be a hazard to anyone in the immediate area, but I do feel that if this guy is abiding by code and making all safety precausions, then there should in theory not be an issue. It goes without saying, there could always be an unforesee situation (ala chemical spill just down the road, and recently a fire at Wyman Gordon), but if there are steps in place to deal with the extraordinary, that seems fair.
The question I hope gets asked and looked further into is if there was no railroad...say hypothetically that this guy didn't own the railroad going through town, just owned the land, and wanted to build this facility...is he abiding by the proper rules and regulations required by the state? I know there is all this talk of rights he gets by being in the RR business, but where is the line between that, and between a propane business? I hope the town officials and their legal team behind bringing this to court can look into whether or not there are loopholes being exploited, as far as him operating a propane transfer business in tandem with his rail road.
"say hypothetically that this guy didn't own the railroad going through town, just owned the land, and wanted to build this facility...is he abiding by the proper rules and regulations required by the state"
No. Without Federal preemption of state controls, and local controls established under state law that facility would be prohibited in that particular location.
Under the state zoning laws the Town has zoned the area as residential and a propane transfer business is not allowed in Grafton's residential zoning districts, period. The Town has also placed the area in the Water Supply Protection Overlay District which subjects it to additional restrictions and requirements.
Grafton does not have use variances or other ways around those zoning restrictions. The only way anyone other than the railroad could set up that business at that location would be to get Town Meeting to amend the zoning to allow it there.
If anyone other than a railroad, under Federal preemption, could avoid local zoning and other controls simply by complying with state rules for construction and operation of a use it would make zoning meaningless.
That answes my question - thanks. It does seem that the RR can exist without that part of his business, but then again maybe his agenda was to purchase the RR as part of a larger propane transfer business. Not sure how the heating pellet part of his business plays into this, unless it legitimizes his business as not catering to the storage and transfer of just one 'thing'.
People who want to criticize the Town government's responses care about these timing issues, but how does the timing of the Town's actions change the preemption question?
I concur, Bob. I read nothing "legal" in day 1's testimony. Hopefully, our town attorney will have more substantial arguments moving forward.
Is the TA to testify so that the what you knew and when you knew it could be answered? I think we knew a police station, fire station and high school were going to be built before the final stamped drawings were done. A little different I know, but stamped drawings are not the be all to a project moving forward.
Fire chief has a valid point. Businesses can throw proposals around left and right, but until registered design professionals have developed design documentation that legitimizes the plan and shows compliance with the applicable codes, standards and regulations, there is really no reason for the town/state to review it (or federal agencies, whomever has jurisdiction). That's the whole point of the approvals process.
It is going to be pretty obvious that the town powers knew about this and were going to let it fly unless people (residents) made some noise. If you think that Berger and his secret spotter is going to drive by the RR site and not question what is going on there, considering the massive accumulation of mountains of earth, and significanr excavation is ludicris
I've read this article twice and to me it appears that our town attorney has established that communication within our town departments is routine.
Strike one; against Grafton.