ATLANTA -- It's dawn, and the bulldozers rumble outside Claudia Mullinax's home near Austell, clearing land for a future rail yard, according to the Atlanta Journal-Constitution.

Marcia Figus is already awake in Shoreview, Minn., 1,120 miles away. The tractor-trailers have clanged all night moving shipping containers by the railroad tracks near her home about 11 miles northwest of St. Paul.

And in the Village of Ridgefield Park, N.J., eight miles from New York City, the soundproof windows of the Vorhees Funeral Home rattle from vibrations of a dozen diesel train engines idling across the street.

Residents of formerly quiet neighborhoods are sleep-deprived and angry as rail yards that once marked city centers head for the suburbs along with Wal-Mart and the mega-malls. There, land is cheaper, traffic is thinner and trains can unload their goods in the heart of consumer demand.

The cities have sued to stop the railroad from building facilities next to homes, and each has learned an expensive lesson: The railroad usually wins.

That's because Congress has exempted railroads and their facilities from local zoning laws.

"They cannot require any kind of procedure that would prevent the railroad from building something," said Nancy Beiter, an attorney for the Surface Transportation Board, the federal agency that oversees the railroad industry. "There isn't any place where they've beaten the railroad."

That notion makes homeowners across the nation shake their heads.

David Gatch, who lives a mile or so from Mullinax in south Cobb County, laments the need for new rail yards, or "intermodal" facilities, where freight in special containers is transferred between different modes of transportation such as truck, train and ship. Norfolk Southern Railway will virtually surround his neighborhood of historic clapboard homes with the largest intermodal facility in the Southeast.

The 537-acre facility will draw up to 1,750 tractor-trailers a day, snarl traffic, bring noise and pollution to two counties and light up the night sky with its 24-hour activity, Cobb County lawyers say.

They filed several lawsuits against Norfolk Southern trying to stop the project, but lost a major battle last fall.

As the court cases drags on, Norfolk Southern has cleared 820 acres of woods, filled two lakes and bulldozed piles of red dirt.

Mullinax hasn't opened her windows much because of the dust swirling in the air. The grandmother of five suffered a bout of pneumonia and still keeps boxes of tissues around the house. "I think it's affected my respiratory (system)," she said.

The facility is expected to open in the summer.

While Gatch and Mullinax worry about their property values and quality of life, Norfolk Southern worries about meeting consumer demand.

"The intermodal business is the fastest-growing section of the railroad industry," Norfolk Southern lobbyist Joel Harrell said. "Because of that higher customer demand, we have to have facilities that can handle the traffic."

The company's Inman rail yard, on Marietta Road in Atlanta, is too old and too small, Harrell said. Rival CSX Transportation opened an intermodal facility in Fairburn, south of Atlanta, in 1999 because its yard near the city zoo ran out of room.

Railroad efforts to build new yards, lay new track or add more trains have raised homeowner ire across the nation, from Atlanta to the Cascade Mountains in Washington to the prairies of Kansas City, Mo.

"Transportation is not a glamorous business," said Tom Malloy, an assistant vice president with the Intermodal Association of North America.

"Nobody wants it in their back yard, but they want their refrigerator full, and the closet full of clothes. Nobody wants this because we're ugly. But we need to do this."

In metro Atlanta, everything from drill bits at Home Depot to corn flakes at Kroger travel through rail yards like the one under construction in Austell.

Gatch isn't convinced by such economic arguments, though.

"It's just a crying shame that you've got an industry that can run over the citizens of this country," he said.

"I'm just hoping that our elected officials have got enough spine to change it so this never happens to another community again."

Plenty of finger-pointing

In fact, elected officials have started pointing fingers at each other now that Cobb County's $2.2 million effort to sue the railroad has stalled. The county filed an appeal in December but has started settlement talks.

Cobb County Commission Chairman Bill Byrne blames Gov. Roy Barnes for failing to lean on the state Department of Transportation to deny the railroad permission to build a replacement for Westside Road. That permission was crucial to the project because the road runs through the railroad's land.

The governor's allies say he has only limited influence over the DOT. Besides, they say, Byrne and the County Commission at first agreed to move the road and build a replacement at taxpayer expense, then changed their minds, saying they had no idea the project would be so large. At that point, DOT had already given the railroad the go-ahead to build the new road.

"As long as it's a safe road, built to standards, that's what we look at," Deputy DOT Commissioner Harold Linnenkohl said. "Whether the railroad is there or not ---that's not our fight."

Railroad insiders say the DOT could have made life extremely difficult if it had wanted to oppose the project.

Most residents of south Cobb County place the blame closer to home, on Austell Mayor Joe Jerkins, who dropped a separate city lawsuit against the railroad in exchange for $5 million and a golf course. The rail yard lies within the tiny city's borders.

"If Austell had bothered to take that to the U.S. Supreme Court, it might have been found that Congress didn't intend to give the railroad all that power," says Tom Bivert, a city councilman in Powder Springs. His town of 11,000 sits next to Austell, and he fears that trains waiting to enter the facility will effectively close his city's railroad crossing, cutting off access to a history museum and baseball park.

Austell, population 5,000, has always been a railroad town, sitting at the crossroads of two main lines, one leading to Chicago, the other to the West Coast. City employees wear shirts emblazoned with a train engine logo, and the tracks run just outside their office windows. The city stood up to the railroad in 1996, refusing to rezone hundreds of acres for the rail yard.

But Norfolk Southern sued and won. Jerkins decided to drop the appeal, fearing a loss would bankrupt the city.

"There is nothing going to stop the railroad but two things," Jerkins said. "One of them is if the world comes to an end, and the other one is Congress."

Friends in Congress

Lawmakers on Capitol Hill have shown few signs of curbing the railroad's power.

The industry has boomed back from the brink of bankruptcy in the 1970s with the help of successive waves of deregulation. The final stroke came in 1995, when Congress axed the Interstate Commerce Commission and replaced it with the Surface Transportation Board.

That's when Congress specifically added the word "facilities" to the type of railroad operations free from local or federal regulation that would hamper the railroad's economic activity, said Glenn Scammel, majority counsel for the U.S. House of Representatives Subcommittee on Ground Transportation. Zoning laws fall under that category, he said.

But cities do maintain their police powers and their ability to protect health and safety, he said. "None of these communities has ever actually made environmental or health concerns the main point of their lawsuits (against the railroads)," Scammel said. "That's mystifying to me."

The result, so far, is that courts have ruled that railroad facilities such as the intermodal operation under way in Austell aren't subject to local laws. A debate now continues in several states over the railroad's interpretation of what a "facility" is and where it can go.

Take the case of Ridgefield Park, N.J., which sued the New York, Susquehanna & Western Railway Corp. when it started to build an engine repair station on a sliver of land in a residential neighborhood. The company had sold its previous repair site across the river to CSX Transportation, which wanted the land for an intermodal facility.

Residents of the 1.5-square-mile village listen to as many as 13 diesel train engines idling 24 hours a day.

"There was constant rumbling," said Loretta Vorhees, whose funeral home sits across the street from the facility. "It was a high-pitched squealing noise."

She lived above her business for seven years, but finally moved last year to escape the din and soot. Her grandson has severe asthma and she didn't want him breathing grimy air while she baby-sat him during the day.

The village's case went all the way to the New Jersey Supreme Court, which returned a 4-3 decision last April, handing some power back to the village and overturning lower court decisions.

The railroad had to follow local building codes and allow safety inspections, the court ruled. But the court reaffirmed federal law, which says local governments can't rid themselves of railroads through zoning restrictions. "States may not interfere with the operational aspects of railroading," the court wrote. "Localized concerns may not burden the nationwide system of railroads."

Meanwhile, noise and grit continue, Vorhees said. She has to power-wash her funeral home at least three times a year to get rid of the soot from the engines.

Drawn to open spaces

The problem for places like Austell, Ridgefield Park, N.J., and Shoreview, Minn., is that the suburbs look good to railroads.

"You want to have the freest flow of freight as possible. If you go into the center of the city, you're going to have more congestion," said Dennis Wilson, a lawyer for Burlington Northern Sante Fe Railroad. Land costs less in outlying towns, and railroads need room to grow.

That growth is partly attributed to the increase in intermodal shipping.

With the invention of stackable containers in the 1980s, railroads could carry twice as many containers as before, said John Youngbeck, executive director of the Georgia Freight Bureau. Freight prices dropped because one train could deliver 100 containers as opposed to 100 trucks each carrying a load cross-country, railroad lobbyists say. The low freight prices helped transform the industry from a hauler of commodities in boxcars to a hauler of consumer goods like washers and dryers, television sets and clothing, Youngbeck said.

The system cuts fuel costs, labor costs, interstate truck traffic and pollution, proponents say. When the train arrives at the intermodal yard, cranes place the container on trucks for the final leg of the journey to the store. "While it does, unfortunately, impose a burden on the local community, it is good for the nation," said Paul Nowicki, a lobbyist for Burlington Northern Santa Fe Railroad.

Minnesota city sues

Tell it to the judge, say residents of Shoreview, Minn., population 26,000.

The city has sued a trucking company that began to stack steel containers on a five-acre strip beside the railroad tracks in a residential neighborhood. An intermodal facility in the city was too full to store them.

"They're ugly. They're repulsive," said Shoreview resident Dody LeGault. "We're in a heavily wooded area. I can see them when I'm out on the street." Cobra Trucking appeared one July morning and moved the containers in, residents say. Now tractor-trailers come at all hours of the night to pick up the empty containers and take them to manufacturers, who will fill them with goods headed for Canadian Pacific Railway's intermodal yard and other destinations.

Residents say they can't sleep or enjoy their back yards.

"You work all your life to retire, and then you retire to this," LeGault's neighbor, Jan Bunde said.

Canadian Pacific Railway joined the suit and moved it to federal court, where it argued that its facilities are exempt from local zoning laws. The case is still in court.

In the meantime, the neighborhood has started a letter-writing campaign to Congress. And LeGault, whose daughter lives in Atlanta, drove to Austell last September to look at construction there. "The thing in Austell is humongous," she said. Knowing that other cities face the same problem has only made her neighborhood more resolved to change the law, she said.

Cobb battle-weary

Back in Cobb County, residents are weary from a long battle.

The latest defeat came last fall when a local jury decided Norfolk Southern's rail yard was part of the "ordinary and necessary" operation of the railroad.

Under Georgia law, that means the facility can't be a nuisance, even though the jury agreed the facility would clog traffic and greatly change the residential feel of south Cobb and eastern Douglas counties.

Cobb County had hoped it would go the other way, pointing to a 1974 decision in which the Supreme Court of Georgia ruled against the railroad and in favor of residents who complained about the rumbling of rail cars that weighed sugar behind their homes. But that decision was long ago, before federal deregulation of the railroads.

Now Claudia Mullinax dreads the arrival of what she calls "the monster."

Like her neighbors on her dead-end street, she's worried her property value will plummet and she'll have to leave the three-bedroom ranch she's called home for 40 years because of the noise.

She is somewhat resigned though, and believes her salvation will come if the whole area turns into an industrial zone. Perhaps a warehousing concern will make it worth her while to move. But she won't sell cheap, she said.

"This is what I've worked for. I don't want nobody pushing me out."

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January 16, 2001

2001 Brotherhood of Locomotive Engineers