Is Catskill Mountain Railroad (CMRR), which runs excursion trains for tourists, a public transportation company? The Shandaken planning board, lacking the authority to rule on this question, voted on January 11 to seek legal advice regarding whether it could grant CMRR a temporary permit to store trains on the railroad’s Phoenicia property, pending a future ruling about public transportation status and giving time for CMRR to organize transfer of its trains elsewhere.
The railroad has been struggling for over a year to obtain permission from the town to move its trains from the Ulster County-owned tracks to its own property between Station Road and the Esopus Creek on the edge of the hamlet of Phoenicia. Neighbors oppose the move, arguing that the town code prohibits industrial storage in a residential zone and that the presence of trains in a floodplain would constitute an environmental hazard. Because CMRR’s lease of the tracks expired last May, and the county awarded use of the tracks in the Phoenicia area to Rail Explorers, a railbike company, the trains sitting on the tracks in the Phoenicia area have to be moved. The latest extension granted by the county gives CMRR until January 29 to move the trains.
CMRR says that as a public transportation entity, it has the right, according to town law, to store trains in a residential zone, if granted a special permit. The planning board referred this claim to the town attorney, who said the board does not have to authority to determine whether the railroad is, in fact, a public transportation company. He advised referring the question to the town’s zoning board of appeals for an interpretation but expressed doubt that the railroad would qualify. Planning board chair Don Brewer said a ZBA decision would take at least two months. The board debated how to accommodate CMRR’s needs in a timely fashion.
“I just feel bad,” said Brewer. “It’s always nice when the community can come together and create a solution to a problem rather than divide the community, but we have to go by what our regulations say. We have to send it to the zoning board for interpretation. Is it a public transportation facility by interpretation of our code? That’s not for us to decide.”
CMRR chair Harry Jameson said the company’s article of incorporation with New York State was sufficient proof that it’s considered a public transportation entity. However, Rod Futerfas, attorney for the Phoenicia neighbors, said a designation would have to come from New York State Public Service Commission in order to be valid.
Anique Taylor, one of the neighbors, attended the January 11 meeting and presented a possible solution. She pointed out that the county gave CMRR a permit to continue operating the Kingston branch of its excursion service, and this permit also allows storage of trains in and near Kingston. However, the tracks between Phoenicia and Kingston have two significant gaps, so the train cars would have to be transported by road on flatbeds, an expensive proposition. Furthermore, construction and repairs would be required to convey the cars from the road to the track where storage is an option. Thus, it would be impossible to meet the January 29 deadline, although Taylor was told by a county official that another extension would be a possibility.
In a phone call on January 17, Chris White, deputy director of the county planning department, said the railroad’s permit does allow storage of trains in the eastern (Kingston) section of the tracks, and he specified a 1.8-mile section in the Town of Ulster. He said CMRR was originally supposed to move its equipment out by last July, but the county moved the deadline to December 15 so they could operate the Phoenicia route until mid-fall. A further extension gave them an additional 45 days.
“We’ve bent over backwards to be flexible,” said White. “We haven’t taken any action other than to notify them that they’re in default of the permit. We know it’s a lot of work for them, but we need to get them out so Rail Explorers can get their operations going this spring. We have to decide by the end of the month whether to give them another extension. Do they have a plan? What’s the timeline? Are they willing to put up a performance bond? If we’re getting to the point where the next business that has been awarded that track can’t operate, if CMRR hasn’t performed, and they’ve put up a performance bond, some or all of that might be used to move the equipment.”
Jameson said it would cost $75,000 to $100,000 to move all the cars by road, an amount the railroad does not have. He also said the stretch of track in question is on a steep grade, not practical for storing tons of equipment.
White said he has had conversations with CMRR president Ernie Hunt, who indicated some of the area has a slope, but the railroad is already storing equipment there. “It may not be a long-term solution,” said White, “but okay for the near term.”
Relevant to the whole town?
Planning board members quizzed Taylor on how many people were encompassed by the word “neighbors.” She said she had 50 letters from Phoenicia residents, and another 20 had expressed verbal support. After further questioning, she acknowledged that there are only five or six houses on the road near the CMRR property. However, residents from other parts of the town are also concerned, and Taylor asserted that the issue is relevant to the whole town, not just the immediate neighbors, especially given that the property is in a floodplain.
Town building inspector Warren Tutt observed that CMRR’s application is not intended to establish permanent storage of the trains but to get them off the county tracks while making plans for movement to a final resting place. Planning board member Allen Shiner asked, “Why can’t we give them a temporary one-year use to remove the train to their property?”
“It’s not in the code to allow us to do that,” said Brewer.
Board member Art Christie suggested going back to the town attorney with this new angle. Given the uncertainty of whether the public transport designation is correct, plus the limited timeframe for CMRR’s removal of the trains, perhaps a case could be made for a one-year permit. The board voted unanimously to consult with the attorney on this course of action. Taylor expressed fear that even temporary storage would alter the character of the neighborhood, and once stored, the trains would be difficult to dislodge.
Meanwhile, neighbors reported on January 17 that CMRR has been working on its property in what appears to be an effort to lay rails, ties, and ballast. Jameson said the activity is just clean-up of debris left by Hurricane Irene, five years ago.
High Street resident Alan Fliegel expressed frustration at the accumulation of trains on the property across from his house. They are owned by the Empire State Railway Museum (ESRM), a separate entity from CMRR, but the two groups work closely together. Fliegel said he has lived in Phoenicia since 1987. When the tourist railroad started up, he was in favor of it and enjoyed the rides. Since ESRM installed a maintenance barn two years ago, and CMRR lost its lease on the tracks, dilapidated train cars are fully visible from his house. “The railroad people never came to us as a neighborhood and said what they’d like to do,” he said, “they just snuck the building in. It’s turned into something more toxic. They run these motors all the time, without moving the trains, and it smells like pollution. Their little kiddie track is fine, and I like the station, but I don’t like the industry.” He fears the storage of more trains would intensify the problem.
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