(The following story by Paul Dellinger appeared on the Roanoke Times website on April 25.)
CHRISTIANSBURG, Va. — Montgomery County officials are looking into the possibility of a lawsuit to stop Norfolk Southern Corp. from locating an intermodal facility in rural Elliston.
Residents opposed to the freight facility have been asking the Montgomery County Board of Supervisors to enact an anti-corporate takings ordinance aimed at keeping NS from taking private land for the facility by eminent domain — the power a railroad has to force the turnover of land for its use. County Attorney Marty McMahon advised the supervisors it was unlikely that such an ordinance would be upheld in court.
Supervisor Gary Creed, whose district includes Elliston, came up with another approach at Monday night’s board meeting: Sue the state.
Virginia is supposed to provide $22 million in rail enhancement as part of NS’ Heartland Corridor, an initiative to speed cargos from Virginia seaports to western markets. The intermodal facility, where trucks would come to deliver cargoes for trains, is part of that corridor.
Therefore, Creed said, the intermodal facility is being paid for by a combination of state and private funds. And that combination of funding has never used eminent domain to secure land, he said. So it is a new precedent and can be challenged as one, Creed said he believes.
Creed said the board needs to challenge the use of public money for any enterprise not approved by a local government. The Montgomery board has gone on record three times against locating the site in Elliston.
“We can challenge the use of money, public money, to be used to acquire private land by eminent domain,” he said. “And if nothing else, it should delay it for two or three years.”
“They’re giving them the money,” Creed said of the state’s funding for the railroad project. “Now, we don’t know which way it goes, once it gets into their hands.”
“I’ll look into it,” McMahon told the board.
“You could argue that that money is used to acquire land,” he said. “Now, whether that’s a winnable argument, I don’t know.”
After the meeting, McMahon said he could not predict how long it would take to research the issue.
The board passed its third resolution against the facility earlier this month after a March 26 meeting with Kevin Page, Virginia’s rail transportation director.
At that time, Page told the board that the Virginia Department of Rail and Public Transportation would make an announcement about state funding for a specific site before the end of April.
Norfolk Southern originally listed 10 possible sites for the intermodal facility, which would require a 50-acre tract.
In their three resolutions opposing the location, the supervisors have said putting an intermodal site there would not comply with the county’s comprehensive plan, would cause environmental harm to the Roanoke River and surrounding rural area, and increase truck traffic through the villages of Elliston, Shawsville and Lafayette that would be incompatible with their rural character.
Earlier in the meeting, several people continued to argue that the board should adopt the ordinance that would try to stop corporate taking of private property.
Shireen Parsons said McMahon may be right about legal precedent seeming to make such a law unenforceable, but people can challenge unjust laws and precedents can be changed. Otherwise, she said, such things as slavery, racial segregation and not allowing women to vote would still be the laws of the land.
She said 77 localities in Pennsylvania have enacted similar ordinances, and no doubt got the same advice about it from their attorneys.