Rail facility development and NIMBYs: ICCTA exemption is powerful tool

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(Owen Eagan has been a project manager, division manager and senior vice president for transportation for The Saint Consulting Group. This article was originally published in the September-October 2010 edition of Association Highlights, a newsletter of the Association of Transportation Law Professionals)

By Owen Eagan, The Saint Consulting Group

It doesn’t matter how good a project is, NIMBYs oppose everything. Without countering this opposition, developers face an uphill battle and, as a result, we see good projects die every day.

If the developer happens to be a railroad, however, there is an additional tool in its arsenal that is not normally available — preemption under the Interstate Commerce Commission Termination Act (ICCTA), found at 49 U.S.C. Section 10501(b). But as is the case for any tool, it should only be used when appropriate and overuse will wear it out.

Railroads have a special place in the politics of planning. They are interstate by nature — if local interests were allowed to have their way with them, a decision in one jurisdiction would have profound effects far beyond the confines of that jurisdiction. For that reason, Congress made sure local zoning laws and regulations generally cannot get in the way of most types of railroad development projects.

Click here for full ATLP Article

For further details, contact Owen Eagan, The Saint Consulting Group, email eagan@tscg.biz

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