Rail ordinance would be unenforceable: Salem VA News Messenger, 3/5/07

By Gene Morrell

Residents of eastern Montgomery County have been urging the Board of Supervisors to pass an ordinance designed to blunt Norfolk Southern's power of eminent domain which would enable it to take private land for a proposed intermodal rail facility, but county attorney Marty McMahon told the board this week that such an ordinance "would be invalid and would be unenforceable."

After hearing comments from residents who oppose the facility and representatives of a grass-roots community group called Citizens for the Preservation of Our Countryside urging the board to pass the ordinance, the supervisors asked McMahon to look into the matter and advise the board on whether the county has the power to pass an ordinance making it unlawful for any corporation (i.e., the railroad) to use its power of eminent domain to seize private property for a project such as the intermodal facility.

It is McMahon's job to advise the board on legal matters involving the county government, and while he does sympathize with the concerns expressed by residents who oppose building the facility in Elliston, McMahon told the board, "The law is very clear on this."

Just as the federal law and U.S. Constitution are supreme to state law and the state constitution, the state constitution and state laws reign supreme over local ordinances.

McMahon said based on current Virginia state laws and decisions by the State Supreme Court, the provisions of the proposed ordinance which residents want the board to pass are "inconsistent with and in direct conflict with state law."

McMahon said according to a state law, railroads are specifically authorized to use the power of eminent domain to acquire private property "for its use in serving the public."

Another law also grants the power of eminent domain to other public service corporations such as electric, telephone and gas pipeline companies, McMahon added, and the Virginia Supreme Court has upheld the constitutionality of these laws.

Therefore, if private property owners refuse to voluntarily sell their property to the railroad, it can invoke its power of eminent domain, take the property owners to court and legally force them to sell.

"Local governments cannot forbid what the state government has expressly authorized," McMahon told the board.

Board chair Steve Spradlin asked McMahon what the ramifications for him and the county would be if the board of supervisors were to go ahead and pass the ordinance proposed by the citizens' group.

McMahon replied that Norfolk Southern would likely file with the court to use its power of eminent domain at some point, and then the county would have to go to court to try to enforce its anti-eminent domain ordinance.

Knowing that the such an ordinance would be in direct defiance of state law and was thus unenforceable, McMahon said, "I would have the ethical duty not to go to court and make frivolous arguments" to try to defend the ordinance. If he did, the court could sanction him, and the county could suffer financially as the railroad could ask the court to force the county to pay for its legal and attorneys' fees.

McMahon added the board has "an image to uphold the law," and he said if the board were to pass an ordinance it knows is unenforceable and against established state law and then try to enforce it, "I would worry about the board's image throughout the state."

Even without the ordinance, residents and the board could still lobby at the state level to try to convince officials not to provide public funds for the proposed intermodal facility. "The issue lies at the state level," McMahon said, and supervisor Gary Creed said it's all about the money since Norfolk Southern officials have said they will not proceed with the project without state and federal funding.

Norfolk Southern officials have said the Elliston site is their preferred location for the rail facility, but that proposed site has garnered unrelenting opposition from local residents and the Montgomery County Board of Supervisors, which passed a resolution requesting that the governor and the Virginia General Assembly oppose providing state funding to Norfolk Southern for the development of the rail facility in Elliston.

Supervisor Mary Biggs said perhaps the board needs to look at passing another resolution to try to put renewed pressure on state legislators.

Since the news about the proposed intermodal facility first became public last year, residents of eastern Montgomery County have repeatedly appeared before the board to express their opposition to the intermodal rail facility, citing their worries that the facility will ruin the watershed, ruin the land, damage the water and air quality, and bring massive truck traffic into the eastern part of Montgomery County.

The proposed site for the intermodal rail facility in Montgomery County is located along the south side of U.S. 460 in Elliston, across the road from Rowe Furniture.

If all goes according to plan, the intermodal facility would be completed in 2010.

During the next few years, the railroad, using railroad funds, financial contributions from the federal government and from state funds will improve and enhance the double-stack rail line connecting port terminals in Virginia to the Midwest.

All the various project components of the heartland corridor will involve a capital investment of more than $200 million.

The railroad's agreement with the commonwealth means Virginia would underwrite 70 percent of the projected $18 million cost of the intermodal facility, with Norfolk Southern paying the balance and providing the rail service.

Placement into operation of the facility will depend on successful completion of the clearance project associated with the heartland corridor allowing for the double-stacking of the rail containers through western Virginia and West Virginia, Norfolk Southern officials have stated.

Salem VA News Messenger: http://mainstreetnewspapers.com