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Upton Will Bring Railroad Questions to Town Counsel

By Michelle Sanford Staff Reporter/Columnist · July 09, 2012

During a June 19 meeting, the Upton Board of Selectmen voted unanimously to accept the Railroad Fact Finding Committee's report and also bring forward five questions to Town Counsel; four questions from the report and one from the Planning Board concerning the Grafton Upton Railroad's activities.

During a June 5 meeting, members of the Committee presented their 182 page draft report to the Board for review and discussed their findings concerning the railroad's activities; in particular the transloading and wood pellet businesses located on the railroad's property.

While all members of the Committee agreed the transloading business did fall under pre-emptive status from local and state regulations, members were divided in determining if the Surface Transportation Board (STB), the division of the U.S. Department of Transportation that regulates railroads, would view the wood pellet business as pre-emptive. The complete report can be found on the Railroad Fact Finding Committee's page located at www.upton.ma.us.

As a supplement to the report, the Committee suggested that the Board of Selectmen ask Town Counsel to also review the report and comment on the following four questions which have been taken directly from the report:

1. In light of the information provided in the DRAFT report, is it the opinion of Town Counsel that the activities at the Facility are preempted from local regulations?

2. If the Town were to go to the STB or Federal court and it was determined that the Facility was preempted from local regulations, is it Town Counsel's understanding that the STB or Federal court would thus require the Town to reimburse the railroad for its associated incurred legal costs?

3. If the Town were to go to the STB or Federal court and as result, the railroad filed suit against the Town, is it Town Counsel's opinion that the Town would have a reasonable basis to challenge the railroad lawsuit as a "Strategic Lawsuit Against Public Participation" (SLAPP) as provided for in M.G.L. c. 231, § 59H? If it was determined that such a railroad lawsuit was a SLAPP, would the railroad be required to reimburse the Town for the Town's associated incurred legal costs?

4. If the Town were to go to the STB or Federal Court and as result, the railroad filed suit against the Town in an attempt to recover railroad attorney fees and other associated costs to be paid for by the Town, is it Town Counsel's opinion that the Town would be vulnerable to a court awarding the railroad such a claim as provided for under 42 U.S.C. §§ 1983 and 1988 (as initially occurred in the Town of Ayer railroad litigation that has been previously referenced by the Board)?

The Board also agreed to bring a fifth question from the Planning Board to Town Counsel concerning a Declaratory Order from the STB.

The Board estimated the costs associated with bringing forward the five questions to Town Counsel would run approximately $1,500 to $2,000. Some residents have requested that the STB answer the questions concerning the pre-emptive status of the railroad. Selectman Chair Ken Picard said the Board would take that request under advisement.