Bill and Cyndi Miner got a skewed lesson in vocabulary and civics from the town of Duanesburg Planning Board this spring (Sunday Gazette, B2, June 12, 2011). They learned that “retail store” means an immense propane storage tank and that the covenant of trust created by a town with its residents through zoning means virtually nothing.
The farce turned to tragedy on July 22, when a state Supreme Court judge decided to enable rather than enjoin Duanesburg’s errors.
Last December, Long Energy Company approached the Duanesburg planning office about a special use permit to construct a 30,000-gallon propane storage tank at 2321 Western Turnpike (Route 20), on a 1.9-acre parcel across from the Miners’ home. The property, which Long did not yet own, is zoned for “C-1 Commercial” activities.
Reasons for rejection
The Miners and their neighbors, including families, businesses and a church, should have expected Long’s proposal to be laughed out of town, for several reasons:
— A bulk propane storage tank does not fit into any of the 25 typical categories of commercial uses permitted in the C-1 district. The board has no power to issue a special use permit for a use not on that list.
— The “storage of . . . flammable or explosive materials” is specifically included in the definition of a Heavy Industrial Use in the town’s zoning ordinance.
— Duanesburg’s zoning laws and Comprehensive Plan have many provisions that ensure the board only grants a special use permit after determining it will not adversely affect the character, safety and property values of a neighborhood.
Nonetheless, after consultation with the town planning office, Long applied for a permit to be issued under the C-1 category of “retail or wholesale stores or shops.” The proposal included no buildings, no personnel manning the facility and no accommodations for retail or wholesale customers.
Long wanted to install a bulk propane storage tank, where trucks could fill up with propane for distribution to residential and business customers, and store individual tanks to be taken to customer locations for installation.
Because the ordinance has no special definition for “retail” or “shop,” the plain everyday meaning of the words was supposed to guide and limit the board’s actions. Instead, the planning office and Planning Board winked at Long, and started using the slippery terminology “retail distribution facility.”
At the March 17 public hearing, Bill Miner was told the facility was appropriate in the C-1 zone, because “the propane that comes out of here is sold at retail.” (Which, of course, makes a coal mine retail, too.)
With no debate, the Planning Board unanimously granted Long’s request. They could put a 30,000-gallon propane tank less that 200 feet from the Miners’ living room. While making believe that a bulk propane storage tank is a retail shop, the board also made believe it was doing its job protecting nearby people and property.
Instead, the board let Long Energy:
— renege on its promise to put a 6-foot perimeter fence around the entire unmanned facility to protect against tampering and the accidental or intentional impact of vehicles with the tank;
— place the tank just 75 feet from the town’s busiest road, rather than farther back on its 300-foot-deep lot, as the Comprehensive Plan directs.
— clear away all vegetation in front of the tank, leaving no visual or noise barrier;
— fail to equip the unmanned facility with advance-warning devices to alert emergency responders and neighbors should a fire, gas release, or collision occur.
This lax security and safety around a 30,000-gallon tank is especially significant in light of the Department of Homeland Security’s conclusion that propane is a “Chemical of Interest” posing terrorist security risks for release and explosion when a facility has as little as 15,000 gallons of propane.
Bill Miner went the day after the board decision to see the town supervisor, who urged him to “reach out” to Bob Long to try to find a compromise and avoid a lawsuit. Within a week, he thought he had an agreement with Bob Long: that the Miners would not sue if Long built a large berm with many evergreen trees on top, as a buffer in front of the propane tank. When the final grading of the facility in May made it clear there was no berm and only four scrawny trees across the 250-foot frontage, the Miners rushed to put together their Article 78 petition.
They filed on May 26, within the statute of limitations. Long then hurried to finish installation and started operating the facility at the end of June.
At state Supreme Court, on July 22, Judge Barry D. Kramer concluded the Miners had not acted soon enough and it would be unfair to make Long remove the tank, citing the equitable doctrine of laches (unreasonable delay). The judge also said the Miners should have appealed to Duanesburg’s Zoning Board for an interpretation of the law at the time the town’s building code officer made a nonpublic decision in February to allow the application for a special use permit.
Although the town and Long, and their lawyers, surely knew a bulk propane tank is not a permitted C-1 use when they pushed the project so quickly from application to operation, Judge Kramer acted as if it were the Miners who acted in bad faith. He also concluded it was not “arbitrary and capricious” to call a heavy industrial bulk propane tank a “retail shop” and an appropriate use in the C-1 district. The Miners now must hope that an appeals court will order removal of the tank.
Zoning is a covenant between a town and its residents — a promise that a homeowner’s important financial and emotional investments will not be devalued by unexpected and undesirable changes in a community or neighborhood. Zoning limits what board and owners can do, and creates important expectations about which activities are appropriate in particular locations and which are not.
It is particularly worrisome that not one of the seven members of the Duanesburg Planning Board had the courage to try to stop this farce, which brings not one new job to Duanesburg and reduces the value of surrounding property.
With his eagerness to accept weak legal and ethical arguments and misleading factual assertions from the respondents, Judge Kramer has further undermined our faith in the covenant created by zoning, and underscored the public’s need for constant vigilance.
Photos of the propane tank and further details can be found online at http://tinyurl.com/propanetanked. For more on Judge Kramer’s decision, go to http://tinyurl.com/tankstory.
David Giacalone is a retired lawyer living in Schenectady and a longtime friend of Bill and Cyndi Miner, who started their lawsuit pro se but later retained Art Giacalone, David’s brother, to represent them.