Agenda - Planning Commission - 06/02/2011

Home

Zoning Bulletin April 25, 2011 I Volume 5 I No. 8 non -railroads, except that land use regulations may not be applied to existing facilities." The Town again petitioned the STB, asking it to declare that the CRA did not apply to the Facility. The STB did so declare. It found that the CRA did not apply to the Facility because the Facility was not "owned or operated by or on behalf of a rail carrier." Again, the STB had found that NYAR "lacked control over the operation of the Facility." NYAR and Coastal appealed to the United States Court of Ap- peals for the District of Columbia. That court transferred the case to the United States Court of Appeals, Second Circuit. DEICISION: Petition denied. The United States Court of Appeals, Second Circuit, held that the Town's Ordinance was not pre-empted by the ICCTA or the CRA. The court noted that the ICCTA grants the STB exclusive juris- diction over "transportation by rail carriers," which includes "wide authority over transloading facilities." However, after analyzing the statutory language (see 49 U.S.C.A. § 10501(2)), the court deter- mined that the STB does not exercise exclusive jurisdiction over Fa- cilities when they are not operated by, or under the control of, a "rail carrier." The STB could exercise exclusive jurisdiction only if: the activity constituted "transportation"; and was performed by, or under the auspices of, a "rail carrier." Here, the court found there was "no question that the activity at issue ... constitutes 'transpor- tation."' However, the court found the activity was not performed by NYAR, the rail carrier. NYAR's involvement was essentially lim- ited to transporting cars to and from the Facility, found the court. Thus, the STB did not have jurisdiction over Coastal's activities, and Federal pre-emption under the ICCTA did not apply. Similarly, the court found that the CRA did not pre-empt the ap- plication of the Town's Ordinance. Under the CRA, the STB only had jurisdiction over "solid waste transfer facilities" under certain exceptions. (See 49 U.S.C.A. § 10908(b)) Those exceptions applied only to facilities that fell under STB's jurisdiction. Again, because the Facility was not part of "transportation by rail carrier," it was not within the STB's jurisdiction, and therefore the Facility was not covered by the CRA. See also: Hi Tech Trans, LLC v. New Jersey, 382 F.3d 295 (3d Cir. 2004). See also: Green Mountain R.R. Corp. v. Vermont, 404 F.3d 638 (2d Cir. 2005). © 2011 Thomson Reuters 5