Duanesburg couple: Judge erred on propane tank ruling

PHOTOGRAPHER: Justin Mason

Cyndi and Bill Miner are launching a volley of new challenges to Duanesburg’s approval of a massive 30,000-gallon propane distribution tank near their home after a county Supreme Court judge dismissed their case last month.

The couple filed a notice of appeal with the state Supreme Court’s Appellate Division this week, claiming Judge Barry Kramer erred when he dismissed the case in July. The Miners continue to maintain the town Planning Board wrongly approved plans for Long Energy’s facility, despite it not being in compliance with the retail zoning along Western Turnpike.

Art Giacalone, the attorney arguing the case for the Miners, said the tank represents a heavy industrial use, which isn’t permitted in the town under its zoning laws. He said the site lacks all the amenities one would typically find at a retail location, such as an attendant or parking.

“I’ve never seen any municipality distort the meaning of zoning law like what happened in Duanesburg,” he said. “It’s clear this propane facility does not belong in that spot.”

Simultaneously, the Miners are challenging Duanesburg Code Enforcer Dale Warner’s issuance of a certificate of occupancy for the tank in July. They are scheduled to bring the matter before the town’s Zoning Board of Appeals in mid-October.

Giacalone plans to argue the tank doesn’t comply with state Uniform Code for Fire Prevention and Building Code by not building a perimeter fence around the facility or installing barriers in front of the tank to prevent an errant vehicle from veering into it from Western Turnpike. Moreover, he said the company began using the tank weeks before receiving its certificate of occupancy.

“Long energy was already using the facility for weeks even though they didn’t have their certificate,” he said.

Giacalone is also contacting the Department of State’s Division of Code Enforcement and Administration to request a probe into the town’s handling of the project. He’s hoping the state will also lend an interpretation of the fire safety code.

In dismissing the case in July, Kramer ruled the Miners had not acted soon enough with their lawsuit and it would be unfair to make the company remove the tank. He also indicated the family should have taken up the issue with the zoning board.

Town Attorney Jeffrey Seigel couldn’t be reached for comment Wednesday. Robert Ganz, an attorney representing Long Energy, believes Kramer did due diligence by hearing the Miners’ argument for more than 45 minutes and took the proper time to craft his ruling.

“We believe that Judge Kramer made a correct decision in all respects and that the appellate division will affirm all aspects of it,” he said. “The town of Duanesburg acted properly in approving the various matters granted Long Energy to place the facility where they have.”