The state Supreme Court could take months to decide whether
By Jeff Sturgeon, Roanoke Times – 12/16/2009
The Montgomery County Board of Supervisors will try again to block the planned construction of an intermodal rail yard in Elliston, arguing the massive project is a poor for fit the rural community and will increase truck traffic on Interstate 81 — not decrease it as advocates contend.
County leaders said Tuesday they intend to appeal a judge’s recent ruling in favor of the project, hoping to convince the state Supreme Court that the taxpayer-subsidized funding plan for the yard is illegal.
“The state should not subsidize bad projects with taxpayer dollars for a private corporation’s benefit,” board Chairwoman Annette Perkins said in a news release.
Norfolk Southern Corp., the railroad that is planning to build the yard with 70 percent of the money coming from the state, had no comment, spokesman Robin Chapman said.
From a purely statistical standpoint, the odds are against the county winning its appeal.
The state Supreme Court agrees to hear a little more than 20 percent of the civil appeals brought to the state’s highest court, said Steve Emmert, chairman of the appellate practice section of the Virginia Bar Association.
It rejects the rest, in which case the lower court’s decision is final.
But leaders are taking the position that it is worth it to spend up to $50,000 on additional legal fees to try to block what they describe as a project loaded with problems. That’s on top of $175,293 spent on lawyers already on this issue.
If the high court hears the intermodal case, the county’s odds of winning improve dramatically. Among those cases it agrees to hear, the Supreme Court reverses the lower court about 60 percent of the time, Emmert said.
With a little better than a one-in-five shot of getting before the court and a 60 percent chance of winning, that gives the county a 13 percent overall chance of receiving a reversal, Emmert said.
The next step will take about seven months, because the high court needs that much time to decide whether to hear each appeal offered to it, Emmert said. So it could be next summer before Montgomery County residents get more information.
Norfolk Southern wants to build an open-air facility on 65 acres of eastern Montgomery farmland for transferring freight containers between trucks and trains to increase transportation efficiency. Located on a major rail line linking the Port of Virginia and Midwest markets, the facility is expected to cost about $50 million with related road work.
In its first legal challenge, the county argued that the funding strategy represents an unconstitutional giveaway of public funds for a private purpose — the expansion of Norfolk Southern, a Norfolk-based railroad and major freight carrier.
Richmond Circuit Court Judge Melvin Hughes ruled, however, that the project has primarily a public purpose and upholds the state’s function to maintain a quality transportation system. For those reasons, it can receive tax dollars, the judge ruled.
Perkins said supervisors disagree.
The intermodal yard would support an east-west freight line, not a north-south line, and is more likely to add trucks to I-81, at least in Montgomery County, she said.
In addition, stepping outside the legal issue at hand, Perkins said the chosen spot is a scenic valley that would be ruined by the rail yard. She said residents living there strongly oppose having a major rail facility put in. She said the proposal violates land use and zoning laws to boot.
“The rail yard is inconsistent with the county’s long-term goals to support smart growth with high paying, high tech jobs that fit in with our vision for our community,” she said in a news release.