It seems to me that a careful reading of case law shows that it is still ambiguous on the point of preemption with regard to various kinds of industrial development by or near railroads. Otherwise the STB would not have accepted the petition of the citizens for a declaratory judgment with the intent to rule on the merits of the case in Upton and most likely in Grafton, too. The G&U in its brief to the STB presented many reasons why it should not accept the petition and they were all overruled. The STB has the final word on this case and it does not seem to think that Dana's claim to preemtion is as obvious as the G&U and its spokespersons would have us believe.
I am amazed at the detailed information about what Dana and the G&U are planning to do if and when they lose the claim to preemption. Where do you come by that?
G&U and its spokespersons seem to presume that what it claims by way of preemption for itself and its industrial clients is automatically "well settled and it really doesn't matter" any longer. So why continue the discussion?
Once again, let us stay on the point. It is about factory installations and industry. If industrial companies are allowed to construct plants, especially in sensitive areas surrounded by schools, residentces, retirement homes, watershed and drinking supplies, disregarding zoning, without permits or adherence to building codes and so forth, there is no way to limit what can be built and done there. This is not just about what is already there, but what is in the plans for the future and that affects every citizen of the town and region. As I said, this is the elephant in the room. Everyone in town needs to be better informed. Perhaps the local newspaper might step up and help. View Comment
BlueGreen has the facts straight. It is the STB which will decide if the rampant, uncontrolled, unregulated, industrial development in the G&U RR yard in the middle of Upton is preempted or not. It is not necessary for Congress to rewrite the law for the STB to rule whether the Dana processing plant is or is not an "integral part of a railroad's interstate operation."
Ever wonder why the Upton Town Crier does not print a full and honest report on both sides of the debate about this issue, but rather consistently comes down solidly in favor of whatever claims the G&U makes? The Town Crier is an embarassment for not helping the citizens of Upton become truly informed about this extremely serious issue pertaining to the town's welfare and future. View Comment
Sarcasm and impugning the motives of the citizens of the town does not advance the discussion. Stick to the issue. Either the growth and development of industrial plants on the G&U property is regulated by the town and state government or it is not. The STB will decide.
If industrial building and operation is not preempted, then the companies operating there would need to get business licenses, approval of the town planning committee, get building permits, adhere to zoning requirements and all the other conditions of any business which wants to construct buildings and operate in the town. This unregulated uncontrolled development in the middle of Upton is the elephant in the room. It will only get bigger and more obnoxious. Stop ignoring it. What is so bad about requiring Dana, Nexeo, Bright Horizons and possibly others to obey the law just like everybody else who lives and works in town?
Federal law, through the FRA, does not regulate any of these local issues. If the industries are not preempted, then the town can exercise control and oversight of location, construction and operation so that both the railroad's interests and the interests of the citizens of the town are respected. That is one of the functions of town government.
As it is, claiming preemption, the railroad and its allied industries have free hand to do whatever they wish on that property, disregarding the interests of their neighbors, even going so far as to "bury a town that resists." View Comment
Once again, confusion and disinformation are being served up in the guise of rational discussion. The amicus brief filed by the ASLRRA with the STB misses the point of the problem in Grafton and Upton and offers more darkness than light. The same can be said of the completely gratuitous and misleading letter sent to the STB by the Upton BOH extolling the merits of the RR. There is no attack on the Grafton and Upton Railroad per se nor has there ever been an attack. The RR is well within its federal rights to run trains up and down the rails without local interference or regulation of any kind from any town or state.
The point of the beleaguered citizens of Upton and the BOS of Grafton is to inquire of the STB whether the unregulated, uncontrolled, unsupervised industrial development in the middle of town and outside any local building codes, zoning provisions, planning boards, etc. is preempted by the RR. Does the federal law of preemption envision protecting the building of industrial enterprises which exceed town regulations with respect to zoning, building permits, size, hours of operation, noise, danger, etc.?There are at least three major corporations (Dana, Nexeo, Brighter Horizons) currently doing business on the Upton site. What exactly are they doing? Who is overseeing them? In addition, there is rapidly increasing tanker truck traffic carrying hazardous materials through the center of Upton. Is this cause for anyone's concern?
This is not a question of attacking the RR, nor is it simply a case of NIMBY. This is about what kind of towns Upton and Grafton are going to become. Will they keep their residential character or become centers of unregulated industrial development?
That this RR activity is not friendly to the towns can be inferred from the statement by the head.of the G&U who is reported to have said to [Grafton]Assistant Town Administrator Kevin Mizikar the town “started a nuclear war, that he intends to win, that all bets were off, and that he intends on burying towns that were not working with him.” Is this what ASLRRA and the Upton BOH are lobbying for? View Comment
I don't think I am wasting my time putting my opinions here for everyone to read. The problem continues to be unregulated industrial development in the middle of Upton (and now Grafton, too) which the RR claims is preempted by federal law. That is the issue. Everything else borders on smoke screen including our references to movies and the motives of the abutters.
There is also a Washington DC attorney, Fritz Kahn who is a specialist in railroad law, working on the case. He can be looked up on the internet. .http://www.hgexperts.com/expert-witness.asp?id=37428
In order to be better informed about what is really going on I suggest you read the document filed with the STB. It clarifies all the issues now at stake in Grafton and in Upton.
http://www.stb.dot.gov/filings/all.nsf/ba7f93537688b8e5852573210004b318/1198db994d8eec0285257b110078a96f?OpenDocument View Comment
You are so right. The way around him is being found in Washington DC. with the petitions before the Surface Transprotation Board. There is every expectation that the propane tanks in Grafton and the pellet plant, etc. in Upton will be ruled not preempted under the RR. When that happens, those industries will be subject to local and state laws like zoning, building permits, etc. and they will have to behave like everyone else and not beyond the law. View Comment
In such exalted discourse it is important to be accurate and to stay with the facts. Otherwise confusion and disinformation continue to be the order of the day. There has been too much of that already in this case.
First the lead actor in "The Magnificent Seven" is Yul Brynner, not Yule Brenner. To the best of my knowledge Sal Mineo was not in that movie, but Eli Walach was, as Sotero the nasty bandit-chief. We can almost hear him saying to the Mexican villages, not "sheep are meant to be sheared", but "I will bury any town that opposes me." (The misquotes are deliberate.)
Second, it is true that anyone can call the STB and complain about a RR. But it is more complicated than that to have a petition for a declaratory order accepted by the STB and given a docket number (FD 35652). The issue is technical, namely that "certain industrial operations do not constitute transportation by rail carrier." That is the ruling sought and only certain people have standing to bring such a petition through legal counsel to the STB. Get the facts straight. View Comment
If citizens do not agree with their local government, it is entirely fitting that they have recourse to higher authority. Fortunately we are still a nation of laws. There is absolutely no guarantee that the BOS, the BOH or the Zoning Board represent final wisdom or any wisdom at all in the matter. In fact a lot of evidence indicates that they are wrong. The STB did not give any answers to those boards. The whole point of this exercise is that those boards have adamantly refused to ask the STB for a ruling.
Note that the BOS in Grafton with respect to the propane tanks has taken the opposite approach. The town government did not roll over to the claim of preemption just because someone said it, but decided to check it out.
That there are SEVEN Upton residents should not surprise anyone. Only abutters have standing with the federal government to ask for such an judgement. The extent of concern and worry in Upton about unregulated industrial development in the middle of town is considerably greater than that. Refering to the "magnificent seven" is appropriate. There are striking.parallels between that movie and the present situation. View Comment
Once the town wins, does it open the door for the town of Grafton to sue the GURR for all the legal and court costs connected with this case, and the cost of preparing and submitting the town's case to the Surface Transportation Board?
It does get confusing when too many issues are on the table at once. Stay for a moment with the picture and article by Deborah Gauthier above. The pictured silos and adjacent building which are processing wood pellets for the Dana Corporation and its subsidiaries were built without reference to the town planning commission, building permits, or any control by the town of Upton. It is very possible that the Dana facility is in violation of town building regulations. They have done this because they claim they are part of the RR preemption and thus not subject to local ordinances. The present action is a request to the STB to rule on that claim. The STB has not yet made any judgment on the matter but the fact that they have accepted the case after visiting Upton shows that they think it has merit.
As far as asking for financial help, why not? No one is forced to contribute. It is worth noting that there have already been many contributions from many citizens who are worried about unregulated industrial development in the middle of town. Keep the issues straight. If there is any object of this action it is with reference to Dana Corporation claiming preemption, not the RR. They are not the same entity. View Comment
Misunderstandings and confusion abound in this discussion. Those citizens of Upton who have standing in the case have asked the Surface Transportation Board of the federal government for a ruling whether the Dana Corporation’s industrial development is preempted and therefore outside town or state regulation. It is precisely the same action that was taken by the town of Grafton which asserts that a claim by the RR of preemption for gas storage tanks does not make it so. It is a matter for the STB to decide since that is precisely what that federal agency does, not the town, not the railroad, not the citizens, disgruntled or otherwise. The request for a ruling is not in any way to object to the railroad per se but to inquire about the industrial development that is proceeding outside any local zoning, building or health regulations. That lack of local or state control has the potential of allowing the growth of a hazardous and dangerous environment for the whole town. It is entirely legitimate for the railroad and allied industries to claim preemption. But it is equally legitimate to ask the appropriate government agency to rule on those claims. View Comment