Updated Saturday, May 15, 7:45 a.m.
Buckingham Branch Railroad workers erected a temporary fence through The Square May 14, ending access to two rows of parking that businesses on The Square rely on. Spaces immediately in front of the stores remain accessible.
Beginning at noon, BBR Senior Vice President Steve Powell, aided by two track maintenance workers, drove in steel posts in a line in front of the Crozet town Christmas tree and fastened a orange plastic net fencing to it. Powell said he was acting in response to an email regarding a Right of Entry agreement the railroad had drafted that the railroad had received earlier in the day from White Hall District Supervisor Ann Mallek. Mallek reported that at the Crozet Community Association meeting the night before “there were no business owners who felt they could sign [the agreement] given the uncontrolled nature of the lot.”
Mallek had told the crowd at the CCA meeting that “We are in the middle of efforts to resolve [parking issues in The Square]. The BBR is seeking temporary immunity from liability from local businesses. Today we got a draft of a plan from BBR.”
The property has “a convoluted title problem dating to 1877,” she added. “The deed stipulated that if the [C&O] railroad closed the station, the property reverted to the White family. But when the railroad did close the station no White family descendents could be found. CSX terminated the lease [that had governed parking] on The Square in 1999.” That action followed their conclusion that they had no right to enter into leases about the land when they could not establish clear title to it, she said.
Nonetheless, Albemarle County records give the CSX Transportation Tax Department as the owner of record and Mallek went on to say, “We are asking CSX to see the light and give it to us [Albemarle County] so we can pave it and stripe it.”
Three business owners on The Square, Rick Ruscher of Crozet Hardware, Brenda Plantz of Parkway Pharmacy and Mark Cosgrove of Fardowners, attended the meeting and got copies of the BBR “Right of Entry Agreement,” but the other three owners were not present, nor were the four owners of the buildings.
Powell said, “We offered temporary access to two groups, the County and the business owners. It’s free to them. Neither of them wants to take on the liability. We assume that they already have liability coverage for their businesses. I need a rider to list Buckingham Branch as an additional insured. We just can’t take on the liability.” BBR’s lease with CSX, now in force for 5 years, does not allow it to enter into other leases of CSX property, he explained.
“The feedback we got is that no one is willing to do that,” Powell said. “That’s what I’m going on.”
According to Powell, the same agreement was offered to the county and the county rejected it.
“It’s private property. It’s just like they were parking in your front yard, only this is industrial property. We didn’t realize this was our property,” said Powell. “It came to our attention a few weeks ago and once we became aware, we had to take responsibility for it.”
“We’re more than glad to work with the county and property owners on this,” he said. “I hope you know we are not trying to be bad neighbors.” As he talked, The Mudhouse brought out iced coffees to the railroad men.
The railroad did not install the barrier on the VDOT right-of-way but about 10 feet north of it. “We’re nowhere close to the edge,” said Powell. “We want to give people room to maneuver and for the trucks that come in. We just don’t want people parking here with us taking the liability.” He estimated that the BBR was spending $2,000 to install the barrier.
As the fence went up motorists pulled up to it and parked, narrowing the passageway for travel behind their cars. When he noticed that, Powell said, “This is not a continuation of people getting to park here.” He later attached “No Parking” and “No Trespassing” signs to the netting.
The three-page BBR “Right of Entry Agreement, meant to be in force only until a permanent arrangement is reached, stipulated that “The use of the area shall be at the entire cost and expense of the Undersigned Businesses, in accordance with good and sound practices, to the satisfaction of the Railroad’s Manager of Track and Structures and in a manner to avoid accidents and damages and delays to or interference with train traffic of the railroad.”
It requires the business to construct a “temporary barrier” 30 feet north of the 40-foot highway easement in front of the stores’ sidewalk, forbids any “site investigations to determine environmental conditions on or beneath railroad properties,” and further requires the businesses “to assume risk of and indemnify, defend, protect and save the railroad harmless from and against injury to or death of any person whatsoever, loss or damage to any property whatsoever, including property owned or in the care, custody or control of the railroad, and from “all claims, demand, suits, judgments or expenses in connection therewith.”
BBR gave the merchants until Friday, May 21 to return a signed agreement. It would lapse on June 30, but could be extended at the railroad’s discretion.
Property owners present at the CCA meeting balked as they scanned the papers and were not willing to sign.
Plantz said she was unwilling because nowhere in it did the county have any role and some people who park in The Square are on their way to Crozet Library. She and Ruscher said they had called their insurance agents to see what a rider might cost and heard that it would be nominal, but they had not yet learned the actual cost.
“We got a contract at about 9 o’clock last night at a Community Association meeting,” said Ruscher. “We had problems with it and [Ann Mallek] emailed them that we weren’t willing to sign. I worried about that wording when I saw the email. At 12 today they started putting up a fence.
“We were told in 1999 by the County that CSX couldn’t establish ownership of it,” he said. “Ann wants CSX to donate that strip to the County. I want to know why this [fence] should happen now.”
Ruscher said, “Losing the top row of parking is rough, but losing both rows would be a killer. I think more people from the county should get involved and I think CSX should take some responsibility. Taking all the parking out would be the death knell of all these businesses.”
But he predicted “The community will rally around our businesses. They know The Square is the heart of Crozet.
“Claudius Crozet has no idea the railroad would close down the town that was named for him,” quipped Jean Seal.
“We haven’t had time to read this and we feel we need to talk to lawyers too,” Ruscher said. “For 50 years people have been parking here and it’s never been a problem. I’ve been here 25 years and this is the first time the railroad has ever needed to get access at this part of the tracks.”
Ruscher pressed Powell to explain why the railroad needs to reserve 60 feet from the center of the main track for its exclusive use and Powell relented somewhat. “We can talk about it,” he said. Business owners wanted the railroad to tone down some of the agreement’s language and Plantz reported that Powell seemed willing to revisit the wording.
“I had a ‘Hell no’ reaction when I read it last night,” Plantz admitted, “but I needed someone to explain it.”
“When I came in this morning,” said Fardowners owner W. C. Winkler, “I got a notice that we can sign a new agreement. Then they say they are not getting cooperation from the business owners. Then at noon they put up a fence. Nobody has asked me anything. To be told that I had said no when I had no opportunity to say anything really irks me.
“All I have to do is call and say add Buckingham Branch as a named insured and I have no problem with that. We’ve been so busy with the lunch crowd I haven’t read the agreement.
“I’ve never seen so much railroad equipment here in The Square as we’ve seen this week. They are really making their presence known.
“I don’t think we’ve been getting much cooperation from the county,” Winkler said. “The county has compounded the problem. If Buckingham Branch had talked to the merchants we would have worked something out.”