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Home / News & Reviews / News Wire / Appeals court affirms Virgin Trains’ right to use private activity bonds NEWSWIRE

Appeals court affirms Virgin Trains’ right to use private activity bonds NEWSWIRE

By Bob Johnston | December 31, 2019

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Florida East Coast’s single-track right-of-way through downtown Melbourne, Fla., shown in 2014, is being converted to two tracks to support Virgin Trains USA passenger service. An appeals court decision has upheld Virgin Trains’ right to use private activity bonds as part of the funding package for that project.
Bob Johnston

WASHINGTON — The U.S. Court of Appeals has upheld a decision allowing Virgin Trains USA to use private activity bonds to help finance its expansion to Orlando, Fla.

The ruling, issued just before Christmas, came a year after the initial decision rejecting the challenge by Florida’s Indian River County over Virgin Trains’ right to $2.7 billion in bond funding [see “Court throws out latest suit by county opposing Brightline expansion,” Trains News Wire, Dec. 28, 2018].

The appeals court did say the county had legal standing to represent citizens in the “zone of interest” who might be affected. Approximately 20 miles of Florida East Coast Railway’s single-track right-of-way through the county, through and north of Vero Beach, Fla., is part of the process to restore a second track and upgrade highway crossing protection to support 110-mph passenger operation.

But the Appeals Court then rejected all Indian River County arguments. One was that the bonds couldn’t be used because they would help finance more than just highway crossing renovation. Another contention was that the Federal Railroad Administration’s more than 600-page Environmental Impact Statement should have taken a more extensive look at such negative impacts as trespassing away from public crossings and train noise.

“The record belies these claims,” Appellate Court Judge Harry Edwards writes, pointing out that the environmental document addressed not only all of the elements required by the National Environmental Policy Act but also obtained commitments from the company to mitigate many of them. These include installing fencing at locations where illegal trespassing has been shown to take place and erecting pole-mounted horns at 117 highway crossings between West Palm Beach and Cocoa, Fla., 23 of which are in Indian River County.

Treasure Coast Newspapers says the county has spent $3.5 million in taxpayer funds to fight the Miami-to-Orlando project; the total tab including money spent by Citizens Against Rail Expansion and other entities has approached $8 million. Other counties have since decided to work with Virgin Trains USA to iron out infrastructure improvement specifics; many communities are now also seeking stations.  

County Administrator Jason Brown told the paper that an appeal to the Supreme Court hadn’t been ruled out, “but we have to evaluate all of our options.”

The Appeals Court ruling is available here.

19 thoughts on “Appeals court affirms Virgin Trains’ right to use private activity bonds NEWSWIRE

  1. Nothing left for the county politicians to do, except for spite filled proclamations. One has to wonder how many of them have personal interest in real estate along the right of way?

  2. I hope BrightLine/Virgin cancel all plans for a station in that county and have all those post-mounted auxiliary horns pointed at the County Administrator’s home. I would smile if the horns in that area were installed with more powerful amplifiers set at max. (you know, in the name of safety, since they are SO concerned)

  3. It’s simple. If you don’t like trains and let’s spell it out for the simple one, .”DON’T BUY PROPERTY NEXT TO THE RAILROAD TRACKS!!!”

  4. There should be a “Citizens against Airport Construction” and “Citizens against Semi Truck Expansion”. I agree with Justin. I’m tired about these types of groups of NIMBYs and MORONS that seem to exist everywhere.

  5. Mister Brummel:

    While on one level I agree with you, this form of litigation (while admittedly abused) is one of the vehicles by which concerned citizens can be heard. There are societies where that right does not exist. I cannot speak for you but I would rather have to deal with a degree of frivolous litigation than to have no voice whatsoever in what goes on.

    The above comments are generic in nature and do not form the basis for an attorney/client relationship. They do not constitute legal advice. I am not your attorney. All suspects are guilty. Period. If they aren’t guilty, they wouldn’t be suspects, now would they?

  6. TO ANNA from the ANTI-LAWYER.

    Yes people have the right to sue. The other side of the same coin is that people filing frivolous lawsuits should be heavily fined and the respondent compensated.

    I’m not saying (one way or the other) the Indian River County lawsuit is or isn’t frivolous. I’m speaking to your point defending frivolous lawsuits. I disagree.

    My (un)favorite NIMBY lawsuit was NIMBY residents of ultra-liberal Madison (Wisconsin) suing to stop Wisconsin and Southern from trimming trees on its own right of way. Of course WSOR won the case soon enough. But that’s not good enough for me. The NIMBYs filing the frivolous lawsuit should have been fined for all costs plus a large penalty, and their lawyer should have been disbarred.

    Signed,

    The Anti-lawyer
    Brookfield Township, Wisconsin

    PS I like good lawyers. My family has a good lawyer, inherited from my mother-in-law after I married her daughter. He’s a great guy who does great work. It’s the bad lawyers I don’t like and there’s plenty of them.

  7. So, Mister Landey, how do you tell a bad lawyer?

    Remember, it is not the position of counsel to pass judgement on the merits of the client’s case except as required to formulate a strategy. He is free to decline a case, but once he takes it, it is his duty to provide as vigourous a representation as possible for his client.

    The above comments are generic in nature and do not form the basis for an attorney/client relationship. They do not constitute legal advice. I am not your attorney. Punishment first, verdict later.

  8. Mister Landey:

    You should really be more careful about the kinds of personal information you publish on this forum. In under a minute, using publically available sources, I was able to determine your age, your marital status, your telephone number, you exact address, your banking information, and your financial status (enviable).

    However, I will not call you without permission. Just a friendly caution.

    AH

  9. ANNA – I’ve never looked you (or anyone else on this forum) up on the Internet. If Anna Harding is your actual name, I’d probably find a jigsaw puzzle.

    Keep looking on the Internet. Yes I’m related – closely related – to that Hollywood actor. No, I don’t know him, never did. We met I think twice when we were both children in the 1960’s. I slightly knew his parents and grandparents, knew his aunt pretty well. But that was decades ago.

  10. I first learned of Melbourne, Florida in the 1960s when Eastern Airline had flights connecting that city with Huntsville (Alabama), New Orleans and Houston catering to NASA personnel and contractors. Mother and I took these flights from Huntsville to Houston when we could no longer make train connections in Memphis.

    Melbourne is the closest proximity to Cape Canaveral on the proposed Virgin Train route to Orlando. If Virgin Trains were to build a station in Melbourne, it should be in a traditional architecture to complement the beautiful downtown buildings pictured in this article. [That would be a first for Virgin Trains whose stations are of contemporary design.]

  11. Indian River should just hang it up and stop wasting taxpayer money on frivolous lawsuits. The tracks were there long before any of the current residents were even born.

  12. @Charles Landey: Yeah, yeah, I know you. You are related to Pamela Landey, the one at the CIA who helped spring Jason Bourne! 🙂

    @Anna Harding: It’s one thing to point out someone’s bad habits (sharing personal info online) but the fact you shared yours in return (looking him up and locating his home), well that definitely gets one closer to what Dr Adam Kotsko calls “the Freudian realms of unheimlich”.

    As for Indian River County, it just goes to show you how badly the elected officials want to keep their jobs. They will gladly waste $3.5 million of their money.

    I wonder if Robert Crandall, former American Airlines CEO and supporter of the anti-rail movement who brags about his “extensive contacts” in Washington DC has anymore cards to play?

    Now that Virgin is making a big play in a blue state, its just not likely.

  13. Mister Landey:

    If I have done my job right you would most definitely find a jigsaw puzzle. Having had my door kicked in not a few times – I tended, in my misspent youth, to frequent autocratic regimes – I developed the habit of not telling anyone where I keep my bed. It is a habit which persists to this day.

    One incident, many years ago in a place which shall remain nameless but which is in the United States, is what caused me to study the law. Defendendam scientia. The local police were outraged that they didn’t “know who she is”, with the implication they needed to be aware of anyone and everyone in the vicinity. Although they tried to label me as an international terrorist they never did succeed in fingerprinting me, mainly because I wasn’t doing anything wrong. Certain officers found this most frustrating. These officers were even more butt-hurt, or so I am told when, after I finished up what I was doing there I vanished without trace. I understand they still want to know where I disappeared to.

    But, and this is meant in a friendly way and not a threat, do be careful what you put on the internet. I hold no malice toward you and do not plan to disturb you in any way. Others might not be so benign.

    By the way. That is a glorious maple (at least it looks like a maple) tree in your front yard. Haven’t seen a white one that size in years.

    The above comments are generic in nature and do not form the basis for an attorney/client relationship. They do not constitute legal advice. I am not your attorney. Never highly value more than what you can carry in both hands at a dead run.

  14. JOHN RICE – No I’m not related to Pamela Landy. She doesn’t have the letter “e” in her last name. Someone else in Hollywood does. But thanks for paying attention!

  15. The DC Circuit Court of Appeals decision is sensible and reasonable, and I think it unlikely that the Supremes are going to exercise their discretion to hear this case. This is just political grandstanding by Indian River County and the highly-suspicious “Citizens” Against Rail Travel.

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