Posted Jan 22, 2019 at 2:00 AM Updated Jan 22, 2019 at 6:54 AM
HOPEDALE – Worried about potential harm to the environment, town officials are trying to determine who
has control over a piece of land behind Town Hall used by the Grafton & Upton Railroad.
“There are contaminants in this area that we’re concerned about,” Board of Health Chairman Walter Swift
said. ”(We need to) do everything that we are able to do .... to try to regulate this for the best interest of the
town and our drinking water supply.”
At a joint Board of Health and Water and Sewer Commissioners meeting last week, board members said
they are unsure what kind of power the town has, particularly concerning preemptive rights of the railroad.
Preemptive rights allow an entity, such as a railroad, to be exempt from some local bylaws. One board
member interpreted preemptive rights as the ability to “do whatever they want.”
“The town hasn’t determined if that is railroad property .... and (if) they have preemptive rights, so they don’t
need permission,” Water and Sewer Department Manager Timothy Watson said. “If in fact it is railroad
property, all this is out the window. We can’t control it.”
Officials did not name any specific subject that triggered the discussion, but did mention a recent
Conservation Commission hearing concerning the property, and the railroad has recently erected a pair of fly
Fly ash, a byproduct of coal, is listed as carcinogenic by the Centers for Disease Control, but as a recycling
measure it can be mixed into cement and used in road construction.
Grafton & Upton Railroad President Michael Milanoski said the transfer of fly ash in Hopedale is subject to
strict safety precautions that include vacuuming the material from railcar to silo. The material won’t hit air, he
The silos are expected to be used for the first time in the spring, he said.
Board members last week suggested a three-board meeting – including the Conservation Commission as
the third board – to examine the subject further.
“The bottom line is the same,” Water and Sewer Commissioner Christine Burke said. “Is there a threat to the
water supply, the Zone Two behind this building, and what steps should we take?”
Zone Two refers to an area that is tied into the town’s aquifer.
Burke said the commissioners sought but have not received guidance from the state.
The group also discussed hiring an outside consultant or lawyer to help – specifically not the town’s lawyer
– but did not come to a decision.
“I wouldn’t mind getting some outside assistance, frankly,” Burke said.
Burke added, however, that she didn’t want the perception that one side of the town is pitted against the
The group left the idea open last week, with the expectation that all three boards would meet at the earliest
convenient date, and determine whether selectmen also needed to be involved.
Alison Bosma can be reached at 508-634-7582 or firstname.lastname@example.org. Find her on Twitter at
HOPEDALE – Letters recently released from the town indicate that the Grafton & Upton Railroad, which runs
behind Town Hall and where last month a pair of fly ash silos were built off Rte. 16, may not be subject to
some local bylaws.
“The Town now says it can’t regulate the fly ash silos or other hazardous waste or solid waste uses
planned by the railroad,” David Lurie, lawyer for Philip Shwachman, the man whose companies own the
vacant acres of Draper factory downtown, wrote in an emailed statement. “This is scary stuff, and if I were a
Hopedale resident I would be very upset.”
The railroad runs through the Draper property.
The issue centers on “preemptive authority.” The letters, from the town administrator and building
commissioner, note that the town believes the railroad company can use this authority to avoid securing a
local building permit. The explanation cites the railroad’s “interstate rail purposes.”
At least two town boards – the water and sewer commission as well as the board of health – were trying
earlier this month to determine who controls the railroad property, citing environmental concerns. Fly ash is
listed as a carcinogen by the Centers for Disease Control, though railroad president Michael Milanoski said
strict precautions will be taken when the material is transferred.
The railroad must still comply with state building codes and associated safety standards, according to the
letter from Town Administrator Steven Sette to Milanoski, and requires approval from a geotechnical
However, the letter from Sette goes on to emphasize that the town is not responsible for a project for which
it has not given permits.
“Since no building permit application will be secured, the Town will not have any responsibility for the
inspection of the project nor any approvals of the construction,” the letter states. “The Town also asks that
any insurance policy for this project reflects the fact that the Town had no role in the permitting or approval of
the construction of this project and be indemnified should any issue arise as a result.”
Sette’s letter refers to a possible offer from Milanoski to give the town money equal to what a permit would
have cost. Sette writes that a payment should not be made “directly to the Town of Hopedale” or its building
department. He suggests donating to another organization in Hopedale.
The issue came to light when Lurie’s firm requested the town inspect the new silos, determine if they are
legal and supply records of any permits secured.
Citing preemptive authority, Building Commissioner Robert Speroni wrote in his letter to Lurie’s firm that he
would not take the requested zoning enforcement action, and that there were no records related to permits
Shwachman is currently suing the town, various boards, individuals, and at least two outside companies,
including the Grafton & Upton Railroad, over the town’s plan to redevelop the Draper factory.
“Mr. Shwachman’s requests that the Town take action against third parties raise complex legal issues,
which the Town will not litigate through the media,” a statement from the law firm representing the town in
the Shwachman case, KP Law, reads, sent on behalf of the town. “The Town will refrain from engaging in a
back-and-forth with him through the media on any matters and instead devote its limited resources to
diligently defending the many legal and administrative actions he has engaged in.”
Lurie’s firm has about a month to appeal Speroni’s decision.
Alison Bosma can be reached at 508-634-7582 or email@example.com