Hopedale officials unsure of who controls railroad land

    By Alison Bosma
    [email protected]
    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 ash silos.

    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 said.

    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

    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 other.

    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 [email protected]. Find
    her on Twitter at @AlisonBosma.


    Railroad may not be subject to Hopedale zoning

    By Alison Bosma
    [email protected]
    January 24, 2019

    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 engineer.

    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

    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 to send.

    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 protected]

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