VOORHEESVILLE — Construction of Norfolk Southern’s Voorheesville crew-change facility will move forward after a federal judge granted Norfolk Southern’s request for a preliminary injunction, ruling that the village is in no position to stop the work. 

Chief Judge Brenda K. Sannes signed the order Dec. 3

The judge further ordered that the village was “immediately enjoined and restrained from enforcing the stop work order and underlying zoning requirements preventing Norfolk Southern from constructing the crew-change facility.”

The Times Union was the first to report on the decision. 

In a Sept. 10 letter to the village, Norfolk Southern said it was “about to commence construction of a building that will support railway operation.” The company claimed it “is exempt from local land use regulations in connection with this project, which does not require us to seek permits” and added, “we wanted to inform you of our intention and provide you with copies of our building plans.”

Voorheesville issued a stop-work order the same day.

“It’s the railroad,” Mayor Rich Straut told The Enterprise on Tuesday, “and we knew it was going to be a long shot.”

Straut went on to say, “I felt good about it,” referring to the village’s chance to stop construction, “but the laws and everything around railroads definitely have the favor, which is very discouraging.”

He continued, “So, what I read into it is the judge basically said, ‘Listen, the railroad can do whatever they want.’ And I know it’s more complex than that, but yeah.”

Straut said there are still issues to be decided, “so [Judge Sannes] didn’t rule on everything. She just said you can’t enforce the stop-work order.” Norfolk Southern in a Dec. 4 court filing moved to have the remainder of the case tossed.

Still to be determined are concerns raised by the village over a settlement agreement between itself, Norfolk Southern, and CSX, along with a third-party suit filed against JC Pops, owner of the land where the facility is to be built.

Norfolk Southern declined to comment on the win. 

Norfolk Southern needs the crew-change facility because of its move to  capture a major share of the car-moving freight market between New York and New England. The 161-mile route is owned by CSX, which is allowing Norfolk Southern to use its tracks but with the caveat that passes over the intersection of Skyler Lane and Main Street in the village and on to CSX’s line, Norfolk Southern has to keep moving until it reaches almost the other side of Massachusetts.

Train crews have strict limits on how many hours they can legally operate a train. The issue for Norfolk Southern is that its crews start their journey as far west as Binghamton, some 130 miles from Voorheesville, and by the time they arrive in the village, the crew is legally near the end of its work shift. 

Since Norfolk Southern can’t stop and swap crews during the 161.5-mile journey along CSX tracks, the crew change has to take place as close to CSX’s territory as possible, which happens to be Voorheesville. If the swap doesn’t take place in the village, the train can’t legally complete its journey to Massachusetts without the crew timing out.

The “illegal carveout”

Norfolk Southern in August paid $450,000 to JC Pops Industrial for approximately one acre of its land at 1 Countryside Lane, which sits on a corner of School Road diagonally opposite to the Voorheesville Public Library. Still listed as a 5.7-acre parcel, the property has a full-market value of $817,800, according to Albany County, and an assessed value of $531,600.

The village said that “86 School Road,” the address the freight carrier has given to the one-acre parcel, constituted an “illegal carveout” of JC Pop’s property. 

The village claimed that the attempted land modification required a formal subdivision review, which Norfolk Southern is circumventing despite its request for an “extension of municipal facilities,” a waterline.

The village went on to assert the illegal carveout that violated the local subdivision law — meaning the conveyance was void and invalid — and the remaining property owned by JC Pops was now noncompliant with minimum lot-size requirements. 

By targeting JC Pops, a non-railroad entity, the village was attempting to bypass the 1995 Interstate Commerce Commission Termination Act, which broadly exempts railroads from local land-use regulations. Norfolk Southern claimed in an earlier filing, effectively admitting, since it cannot regulate the railroad, Voorheesville would regulate the land transaction that brought the carrier here. 

Norfolk Southern’s defense rests on the 1993 decision made in Voorheesville Rod and Gun Club v. E.W. Tompkins, where the court found that a failure to obtain subdivision approval did not invalidate the transfer of a title, Norfolk Southern argued. So, while the village can fine JC Pops, seeking up to $250 per day per violation, it likely can’t void the deed or evict the railroad based on a three-decades-old precedent.

The settlement agreement

There are two legal documents at the center of the dispute: the stop-work order, which is now moot, and a 2021 settlement agreement among the village, Norfolk Southern, and CSX.

CSX in November 2020 reached an agreement to acquire Pan Am Railways and seven of its subsidiaries; Norfolk Southern owned a 50-percent stake in one of them.

Norfolk Southern let its objection to the deal be known to the federal regulator overseeing the acquisition, which led to the freight carriers striking their own arrangement: Allowing Norfolk Southern to reconnect and use twice per day CSX’s line running through the village. 

Voorheesville was quick to raise its concerns about the proposal to the Surface Transportation Board, which caught the attention of CSX and Norfolk Southern and allowed all three to enter into discussions about a resolution, which was struck in December 2021 when the village agreed to withdraw its STB complaint. 

The village argued, in the settlement, Norfolk Southern had voluntarily agreed to work to minimize its project’s impact on the community while also agreeing to take part in the site-plan review process. 

In its filings with the court, Voorheesville turned the settlement agreement into a mandate, arguing that the village agreed to withdraw its opposition to the CSX/Norfolk Southern merger only after the railroads signed the contract to minimize potential impacts on the village. 

The STB approved the merger subject to conditions agreed upon by the three parties, but the village argued this approval effectively federalized the contract, and contended that Norfolk Southern’s plan is a violation of the promise to minimize impact. 

The village argued that, depending on location, a stopped train could block all three of Voorheesville’s surface crossings, potentially severing emergency access to half the town, which constitutes a material breach. By violating the conditions of its federal license, the village argued, Norfolk Southern forfeits the very federal protections it is now trying to hide behind.

Norfolk Southern argued that “minimize” did not mean “eliminate” impact, contending that trains blocking roads are an unavoidable reality of physics, not a violation of a contract.

To show it was minimizing impacts, Norfolk Southern provided a specific staging plan for its trains. Those heading eastbound would be staged west of the School Street crossing, while westbound trains will stop at a designated landing pad near Hennessy Road.

The company asserted these stop points are calculated specifically to keep crossings clear while the train is stationary during crew swaps, but also admits that moving trains will temporarily block crossings while decelerating or accelerating. 

The freight carrier concluded that, if Voorheesville truly believed the agreement had been breached, the only remedy is to petition the Surface Transportation Board for legal enforcement, not to padlock the site. And by using its zoning laws to settle a contract dispute, Norfolk Southern claimed, the village is engaging in illegal self-help.