COURT OF APPEALS FOR THE SECOND CIRCUIT
Vt. Ry. v. Town of Shelburne
18-188-cv
Vt. Ry. v. Town of Shelburne
In the
United States Court of Appeals
For the Second Circuit
August Term, 2018
Argued: November 8, 2018
Decided: March 7, 2019
Docket No. 18‐188‐cv
VERMONT RAILWAY, INC.,
Plaintiff‐Counter‐Defendant ‐ Appellee,
V.
TOWNE OF SHELBURNE,
Defendant‐Counter‐Claimant ‐ Appellant,
JOE COLANGELO, in his capacity as Town Manager and Zoning
Enforcement Officer,
Defendant.
Appeal from the United States District Court
for the District of Vermont
No. 2:16‐cv‐16 – William K. Sessions, Judge.
1
Before: RAGGI, HALL, and SULLIVAN, Circuit Judges.
Appeal from a permanent injunction barring Town of Shelburne from
enforcing an ordinance regulating hazardous substances and certain zoning
bylaws against Vermont Railway in connection with Railway’s road salt
transloading facility. The Town argues on appeal that the ordinance falls within
the “police powers” exception to preemption by the Interstate Commerce
Commission Termination Act (“ICCTA”). Because the ordinance imposes on rail
activity restrictions that do not meaningfully protect public health and safety, it
does not meet the “police powers” exception and is therefore preempted by the
ICCTA. To the extent the Town seeks to challenge the District Court’s ruling that
the Railway’s activities do not constitute “transportation by rail carrier,” that
challenge is dismissed for lack of jurisdiction. Judge Sullivan dissents in part in
a separate opinion.
AFFIRMED.
CLAUDINE C. SAFAR, Monaghan Safar Ducham
PLLC, Burlington, Vermont, for Defendant‐Counter‐
Claimant ‐ Appellant.
JENNIFER E. MCDONALD (Marc B. Heath, Evan J.
O’Brien, on the brief), Downs Rachlin Martin PLLC,
Burlington, Vermont, for Plaintiff‐Counter‐
Defendant ‐ Appellee.
HALL, Circuit Judge:
This is an appeal from a judgment entered on January 2, 2018, in the United
States District Court for the District of Vermont (Sessions, J.), granting a permanent
injunction barring the Town of Shelburne, Vermont (“the Town”) from enforcing
2
against Vermont Railway, Inc. (“the Railway”) the Town’s “
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