Duanesburg needs a dictionary

 update (Aug. 23, 2012): The Third Department affirmed the lower court’s decision, saying the Miner’s waited too long to bring the case and it would be unfair to Long Energy to make it remove its tank.  See our posting today.

update (March 23, 2012): See our posting “challenge to Duanesburg propane tank goes to the appellate Court“. Bill and Cyndi have filed their brief with the NYS Supreme Court Third Department appellate division.  Answer briefs are due by May 4th. Oral argument is scheduled for May 29, 2012. (Miner v. Duanesburg Planning Board, Case No. 513780). The posting includes, among other things, a summary of the Petitioners’ arguments, and a listing of additional facts we wish were on the Record and could therefore be considered by the appellate court.

  

  . .  Summary:  Bill and Cyndi Miner’s battle with the Town of Duanesburg, over placement of a giant propane tank less than 200′ from their home, is a tale that could happen to any of us. It shows how much we have to lose if those in charge of interpreting and enforcing zoning and safety laws break the Zoning Covenant by making arbitrary decisions or simply ignoring the law and the promises it contains.

The Town’s Planning Board allowed Long Energy to install a 30,000-gallon bulk storage propane tank on a parcel zoned commercial, under the use category of “retail store or shop.”  This “store” has no building, no personnel, no sales to customers nor parking spaces for them; instead, Long Energy’s “bobtail” trucks fuel-up there before making delivery to homes, farms, and business customers, and smaller storage tanks (100- and 200-gallon) are kept there before being delivered and installed at customer locations.

– Long Energy’s Propane Facility, 2321 Western Turnpike, Duanesburg  NY –

Ignoring the key words “shop or store”, Duanesburg’s planners focused on the term “retail” and insisted that the huge tank is a “retail establishment” because the propane is stored there “for retail distribution” by Long’s tank trucks.  Of course, every facility owned by a retailer is not a retail facility, and a location that offers no sales to customers on the premises is simply not a retail use.  As Long stated many times in its submission and testimony, the facility is a bulk storage plant.  The planning office and Board also completely ignored the provision in the local zoning ordinance that includes the storage of explosive or flammable materials in the definition of an “Industrial, Heavy” use.  Heavy Industrial uses are not permitted anywhere in Duanesburg, which has only “light” industrial zoning, and they certainly are not permitted in the more-restrictive C-1 commercial zone.

In considering environmental and fire and safety questions, the Planning Board in effect acted as if the Long Energy facility were no more of a hazard than having a conventional retail store on the parcel.  The propane storage facility, which is near many homes, a church, and other businesses, is classified as a High Hazardous use and occupancy under the NYS Building and Fire Codes and by the Town’s own zoning enforcement officer; and the quantity of propane stored there is large enough to be considered a Chemical of Interest as a potential terrorist risk by the U.S. Homeland Security Department.  Ironically, were this facility merely a retail or wholesale store, the Fire Code might have required significantly more safety protection systems than exist at this bulk propane plant. [The discussion of the subsequent proceeding by the Miners in front of the Duanesburg Zoning Board of Appeals, regarding the failure to comply with the NYS Fire Code, has been moved to the bottom of the post “Duanesburg ZBA says vehicles no threat to propane tank.”]

  Under its Zoning Ordinance, the Town Planning Board can only grant a special use permit when the proposed use fits into one of the specifically permitted categories (§5.1.1), and after many other conditions are met that ensure neighbors will not be adversely affected.  For a brief summary of how the Planning Board ignored the law and broke their covenant of trust in allowing the propane tank, see my Sunday Gazette Viewpoint OpEd column, “Propane tank ruling creates nightmare for Duanesburg couple” (July 31, 2011, p. D1; also available by subscription online here).

If the creators of the Hangover films ever dreamed up the plot played out at the Duanesburg Town Hall this year and called it Tanked, the scenario might seem a bit outlandish for even a Bradley Cooper summer farce.  The nightmare script is, however, all too real for the Miners.  Not only did the Town call a propane tank a retail store, but Supreme Court Justice Barry Kramer has refused to reverse the action, saying the Miners should have acted sooner (although they were within the statute of limitations) and should have gone first to the Town’s zoning board, and that it was not “arbitrary and capricious” to put the tank in a commercial zone in the retail store category.

This posting has photos and links to important court documents (such as the Article 78 petition and court decision), and to materials describing the law and facts, the arguments raised by the Miners,  and their continuing efforts to overturn the granting of the special permit.  In addition, detailed analysis can be found at the bottom of this posting on important safety and legal issues, along with the text of relevant local laws, in our Appendix: Safety and Legal Issues.  You can share this webpost using the short URL:

http://tinyurl.com/propanetanked

  Note re Lawyers: The Miners started their Art. 78 proceeding challenging the special use permit with a pro se Petition, meaning they had no lawyer.  Before the hearing was held in front of Justice Kramer, my brother Art Giacalone, of East Aurora, NY, was retained to represent the Miners in Supreme Court.  In December 2011, I took over as the attorney of record for Bill and Cyndi Miner to handle this appeal.  Nonetheless, as this is a volunteer effort on my part, I continue to maintain my status as a retired member of the NYS Bar.

[original posting, with updates, Appendix]

With a whimsical message superimposed on the 30,000 gallon propane tank, Bill Miner stands roadside in front of the “retail store” allowed 200′ from his house by the Duanesburg Town Planning Board –

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My former Schenectady Stockade neighbors Bill and Cyndi Miner recently got a vocabulary lesson from the Town of Duanesburg Planning Board: they learned that the term “retail or wholesale shop or store” can mean a giant propane bulk storage tank.  They also had a civics lesson: they learned that vigilance is not enough to ensure that the covenant of trust created by a town with its residents through zoning and planning is fulfilled.  [A related article can be found in the Sunday Gazette, B2, June 12, 2011; the Gazette also reported on the case in an article on Oct. 3, 2011; subscription required] Bill and Cyndi have lived at the Duanesburg location, and raised their youngest child there, for over a dozen years.

The Town re-zoned their parcel and a 500′ deep strip of land on both sides of Western Turnpike “C-1 Commercial” a few years after the Miners moved in.  Because of the clear provisions in the Town zoning law, Bill and Cyndi thought that meant only certain types of businesses would be allowed there, but no light or heavy industrial activities. For the past several years, the Miners have planned to sell the house and front portion of their land and build a smaller “empty nest” home on a ridge further back on the property, which has woods, marsh land, ponds and a creek.  The Town allowed them to subdivide the lot in order to do just that.  Bill and Cyndi had placed the house on the market for sale prior to any indication that a propane tank would be situated closeby.   Given the current real estate climate, and the added burden of the tank’s proximity, they recently decided to take the house off the market for the time being, thus postponing their planned move to a more idyllic part of their land.

 . .

– northeast (L) and southeast views of Long Energy’s under-protected Duanesburg Propane tank –

The Miners filed an Art. 78 lawsuit against the Town and Long Energy, owner of the propane distribution facility, at the end of May, in the Supreme Court in Schenectady County (Miner v. Town of Duanesburg Planning Board et al., Index # 2011-1014).  Their claims against issuance of the special use permit were rejected by Judge Barry D. Kramer on July 22, 2011.  Although they filed within the short (30-day) statute of limitations, the Judge said that the Miners should have acted sooner, making it unfair to order the tank to be removed; and that the Board could leave the interpretation to the Town’s code enforcement officer as to whether the tank fit into the retail shop category, even though §14.6.2 the Zoning Ordinance explicitly states that “No special use permit shall be granted until the Board shall find and determine that . . . d) Such use will comply with all other terms, conditions, requirements and standards imposed by this Ordinance.” Judge Kramer also said the Board had taken the “hard look” required under the State’s environmental review laws.  He failed to address crucial question whether the tank is a retail store and simply concluded that it was not arbitrary and capricious for the Planning Board to approve a propane tank for that commercial location.  See the Appendix: Safety and Legal Issues below for detailed discussion of the safety and legal issues ignored by the Town and the Court.

checked box Here are links to important documents and materials:

  • the Miners’ Art. 78 Notice & Petition challenging the grant of the special use permit to Long Energy, which quotes relevant portions of state and local laws
  • a transcript of Judge Kramer’s Decision from the Bench on July 22, 2011
  • The extensive Statement of Facts from the Miners’ Brief to the Appellate Division, dated March 19, 2012.
  • recent 3rd Department appellate decision in Erin Estates, Inc. v. McCracken, 2011 NY Slip Op 03707, requiring the use of the “plain meaning” when interpreting a clear and unambiguous word or phrase in a zoning ordinance if it is not otherwise defined with a special meaning in the applicable law.

 Note: Bill and Cyndi Miner lived next-door to me on Union St. when I first moved into the Stockade in 1989 and are longtime friends of mine.  Although they started their lawsuit pro se, they soon decided it was too complicated to handle without a lawyer, and they retained zoning law expert Art Giacalone of East Aurora, my brother, to represent them in their lawsuit.  Although I’m a retired lawyer, I have tried to write this post with a lay audience in mind.

The photos in this slideshow help suggest what it feels like to have a looming — and possibly kabooming — bulk propane tank right across the street from your home:

This slideshow requires JavaScript.

. The Miners must now hope that the appellate court will help Duanesburg and other towns and cities, along with Judge Kramer, understand that:

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.  Zoning laws also empower the town to add conditions and requirements to permits to ensure that a new use does not negatively affect nearby properties; with that power comes the responsibility to act to protect the community and its property values.

 It is difficult to understand why the Planning Board would go along with Long Energy and its Code Enforcement Officer, and break their zoning covenant to grant Long’s request.  Doing so will not bring one additional job to Duanesburg; it creates the threat of catastrophic explosion; and is very likely to lower the value of nearby homes and businesses, offsetting any increase in the tax base from Long’s parcel.  Worst of all, of course, it leaves the residents of Duanesburg unsure whether they can trust their leaders or the words written in their Zoning Ordinance and Comprehensive Plan.

checked box some important facts relevant to the equities, “clean hands” and timing:  There are a few “facts” mentioned by Judge Kramer at court that I would like to clarify. While explaining why he felt the Miners had waited too long to bring their lawsuit and were therefore guilty of “laches”, the Judge insisted in a mocking tone that the Miners were “taking photos” of the construction all Spring while the facility was being constructed, rather than bringing their lawsuit.  In fact, Bill and Cyndi took no photos.  The very first photos were taken on May 25, the day before their Petition was filed in court, for use with the Petition.  I took the photos used for their Petition and in other court documents, because Bill and Cyndi did not have any photos of the tank.

Far more important, Bill and Cyndi had a good reason for not immediately filing their Art. 78 lawsuit.  On the day after the Planning Board granted the special use permit, Bill Miner met with Town Supervisor Rene´ Merrihew and Dale Warner, the Code Enforcement Officer, and asked whether she could do anything to prevent the propane facility from being constructed.  The Town Supervisor said she could do nothing and that bringing a lawsuit was Bill’s only option.

  • Didn’t Ms. Merrihew know that State law allows any town official or board to challenge the action of the Code Enforcement Officer by appealing to the Zoning Board of Appeals [Town Law §267-a(4)], or to challenge in court the decision of a Planning Board on a special use permit application [§274-b(9)]?

Moreover, Ms. Merrihew asked Bill to instead “reach out” directly to Bob Long to come up with a compromise to avoid a legal challenge. Bill did just that, and within a few days, Bill thought they had reached an agreement that Long would build a large, protective berm in front of the tank topped with a thick visual buffer of evergreen trees; he therefore took no steps to sue Long and the Town in late March and April.

Only when it became clear in May that landscaping was nearly complete and Mr. Long was not going to build the expected berm, did Bill and Cyndi check to see whether the statute of limitations had expired, and rush to get their lawsuit filed within the statute of limitations.

   Judge Kramer also said the Miners could not complain so late about the propane tank, when they had themselves tried to have the tank located on a lot they owned adjacent to their residence.  In fact, before Bill Miner knew Long’s application was under the retail store category of uses, or had studied the Duanesburg Zoning Ordinance to learn whether a propane storage tank could be allowed in the C-1 district, and before he had learned more about the precautions needed to reduce the risks of tampering and hazardous impact with the tank, he had been told by the Duanesburg Planning Office that Long’s tank was absolutely allowed at the location and he could not prevent it.  Feeling helpless to stop the tank, and hoping to have more control over where the tank was placed in relation to their home, and over whether visual and safety barriers were constructed, Bill left one short phone message at Bob Long’s office, suggesting that Long might place the facility on one of the two vacant parcels the Miners owned along Western Turnpike, which are located on either side of their homestead.  That phone call was never returned and the idea was immediately dropped by Bill.

 By the way, despite the claims of the respondents that the tank would be closer to the Miners’ home if placed if the tank were placed on either of the Miners’ two (500 ft. deep) side-lots, it would have been farther from their house (and the road) than it is on its current lot.   Also, a large barn that would act as a buffer and screen is located between their house and the side parcel on the west side of their property.

Nonetheless, the court used that panicked, spontaneous and aborted offer as proof the Miners did not really mind having the tank nearby and as a reason to blame Bill for not knowing the law and not appealing the Town’s actions sooner.   The Miners are not developers or lawyers, and had no experience selling commercial property in Duanesburg.  Judge Kramer nevertheless said the Miners could not argue that the experienced business people at Long Energy Co. and their lawyers should have researched the permitted activities in the Duanesburg commercial district before asking for a special use permit as a retail shop, because Bill himself did not know what the restrictions were when offering his parcels for sale to Long.  Of course, an applicant must choose an allowed category when filing an application for a special use permit, and Long Energy — along with their lawyers and the Duanesburg planning officer who suggested the category — knew very well that a bulk propane storage facility is not a retail shop or store.  Judge Kramer might be willing to overlook Long’s inappropriate request, but other courts have made it clear that an applicant for a permit is expected to know the zoning law by the time it makes its application; as one court put it, “The burden of locating the business in an appropriately zoned site must fall on the business person.”

As soon as Bill Miner learned the tank was being proposed under the retail store special use category and realized he might be able to stop it, he turned his attention to opposing Long’s application.  Although his single, panicked phone message was never returned by anyone at Long Energy, its CEO Robert Long swore in his affidavit to the court that there had been “negotiations” in which Bill Miner was trying to get the propane tank placed on his own parcel for his personal profit and without any safety concerns, making Bill a hypocrite.  Although Bob Long never denied there was only the single unanswered phone message, Judge Kramer concluded there had been discussions in which Bill actively tried to sell his parcels to Long, and the Judge therefore acted as if the Miners, not the Longs, were acting in bad faith.

Exhaustion of Remedies? Judge Kramer also rejected the Miners’ appeal because he concluded that they had not “exhausted their administrative remedies.”   The judge said that, before going to court, the Miners should have appealed to the Zoning Board of Appeals the Determination made on February 8th by Dale Warner, Duanesburg’s code enforcement officer, that Long was allowed under the Ordinance to ask for a permit under the use subsection for retail shops.  But, that was not a public action that Bill and Cyndi could have known about, and the Determination form never even mentions a bulk storage tank, but merely describes the project as “retail distribution of propane,” simply referring to the subsection number of the Ordinance that includes retail shops.

Indeed, the Miners argue that they could not have appealed to the ZBA because they were not “aggrieved” at that point by the enforcement officer’s decision.   Dale Warner did not issue a permit or otherwise authorize Long to start doing anything at that site, all he did was refer the matter to the Planning Board.  At that point, even if they had known (which they did not) that the project was a bulk storage tank and not a retail store for selling propane, the Miners would have expected the Planning Board to do the only lawful thing and to reject the request for a special use permit. Once the Planning Board granted the permit, the correct place to appeal their action was in court in an Article 78 proceeding.

Throwing the Miners out of court because they rather than Long and the Town purportedly acted in bad faith is bad law and bad policy.  It in effect leaves all those affected by the placement of  this highly hazardous facility in the C-1 zone without a voice in fighting a boldly unlawful action by the Town.  This is not a fight over a garage or shed placed too close to a family’s property line.  This is a major precedent that violates the Zoning Covenant, endangers life and property, and sets a dangerous precedent.  When an aggrieved person properly files its court challenge about a matter so important to the entire Town within the statute of limitations, it is inexplicable that a judge would toss them out the courthouse door on flimsy laches and mootness arguments.  That is especially true when the tank would not have to be destroyed, as a building would be, if the Miners won the lawsuit and Long lost on the calculated risk it took when it called a bulk storage tank a store.  The tank can simply be placed on a flatbed truck and moved to an appropriate location.

checked box  APPENDIX: SAFETY & LEGAL ISSUES:  The Planning Board and the Supreme Court missed or misconstrued a lot of the important facts, and ignored the controlling law and safety implications, in their faulty assessment of the appropriateness and impact of locating the huge Long Energy propane tank near residences and businesses.  For example: Discussion of Important Safety and Legal Issues . . .

Propane and the DHS Chemical Facility Anti-terrorist Standards.  Under its Chemical Facility Anti-terrorist Standards [CFATS] regulations, the U.S. Department of Homeland Security has placed propane on its Appendix A list of Chemicals of Interest [COI], as a potential “release” security risk, whenever a facility has 60,000 lbs — which equals 15,000 gallons — or more of the chemical.  [See the DHS statement of Frequently Asked Questions (Nov. 2, 2007), which was confirmed to me as the current standard in telephone calls and email correspondence with the Homeland Security CFATS HelpDesk, on July 14, 2011. And see the relevant Federal Register page: Fed. Reg. DHS COI] A facility that meets the propane quantity threshold must complete a Top Screen registration form that allows DHS to assess its level of security risk. Propane creates a “release security issue” because its mere release in large quantities at its storage location can create a massive explosion and fireball.  The FAQ describes the security risk issue in this way:

  Release: quantities of toxic, flammable, or explosive chemicals that have the potential to create significant adverse consequences for human life or health if intentionally released or detonated.

The agency states: “DHS has included propane on the list of Appendix A chemicals of interest because propane can produce significant consequences if used in a terrorist attack. And this is not hypothetical: propane has been successfully employed as a component of terrorist devices.”  It goes on to explain:

“Why regulate these sites at all? 

“The recent events in London and Glasgow – in which the terrorists attempted to attack using propane – illustrate how important it is to appropriately secure facilities that possess potentially dangerous chemicals. For example, while poultry farms may not be a direct target of attack, the chemicals they possess might pose a high risk to the surrounding community. One goal of CFATS is to increase security at facilities that possess dangerous chemicals in such a quantity as to pose a threat to the surrounding community. DHS is committed to mitigating these potential threats.”

The tank located at the Duanesburg Long Energy Propane Facility has twice the CFATS threshold amount of propane.  Despite the grave potential risk to nearby persons and property, the Duanesburg Planning Board apparently did not spend even a moment considering the potential anti-terrorist security needs of the Long facility — or even the danger from an accidental rupture of the tank itself.  Both Long Energy and the Duanesbug Planning Board satisfied themselves with information about the fire safety factors related to the “inadvertent” release of propane from the tank during its normal operation, and only for Release Model scenarios involving the valves and relatively small piping and hosing (with 1″ and 2″ diameter) that serve as appurtenances to the tank.  They did not take into account the risk from a major rupture of the body of the tank caused either intentionally or accidentally by the large trucks expected at the facility, or by uninvited persons or vehicles.  At court, the Town attorney noted that the Board has no responsibility to monitor the federal CFATS regulations to ensure compliance by the Applicant.  That may be true, but the Board must decide under §14.6.3 (7) whether a use causes a “fire, explosion or safety hazard.”  More generally, it has the responsibility to help ensure that property values, and character of the neighborhood are not adversely affected by the proposed use.  In addition, the Board is required to act consistently with the the Town’s Comprehensive Plan, which has as an explicit “Goal: Minimize the risk to persons and property from a natural or man-made disaster” (at 39), and which advises (at 25):

“One important way to minimize our risk from natural or manmade hazards is to plan and develop our communities with those hazards in mind.

“Minimizing risk is an essential focus of public safety planning.  Every land use or public facility action taken by local government should be based on a recognition that some natural and manmade risk exists.  The level of risk involved then becomes critical in determining when government involvement becomes necessary or desirable.  The challenge is to balance the probability of potential hazard impacts with the characteristics of proposed land uses.”

Had the Board consulted the DHS Risk-Based Performance Standards Guidance for the CFATS program, the Board would have found “examples of specific security measures and activities that facilities may want to consider if they face a particular security issue.” (pp. 17 – 18) Regarding a Release COI such as propane:

•    Release COI — For high-risk facilities whose primary security issue is possession of a release COI, the primary security goal often is the prevention of an intentional, uncontrolled release of the COI. Achieving this security goal presents a different challenge than the security goals associated with the other types of COI for two main reasons: (1) a successful physical attack on a release COI can take place from off-site, and (2) the harmful health and human life consequences typically will begin on-site.

According to the Department Guidance, “In light of the first unique concern, facilities with release COI could use certain specific protective measures or activities that facilities with only theft/diversion or sabotage security issues would not typically use. These measures or activities could include”: [my comments are in brackets after each particular measure]

o Strong vehicle barriers surrounding the release COI [there are no vehicle barriers on the road side of the Long Energy tank and only 3 bollards at its eastern end];

o Elimination of clear lines of sight to the release COI [the Long Energy tank is over 60′ long and a mere 75′ from the road, and is parallel to the road with no visual barriers];

o Standoff distance around the release COI [there is no perimeter fencing around the facility to create a standoff distance and prevent intruders on foot or in vehicles];

o Limitations on on-site parking and additional parking security measures [the facility is unmanned and has no security guards to prevent unauthorized entry or parking of vehicles]; and

o Refusal to accept unannounced shipments or off-site staging of unannounced shipments until they can be verified [the unmanned, unfenced facility has no way to prevent unannounced shipments].

With regard to release-risk chemicals, the Guidance document continues: “The second main concern (i.e., that the potential harmful consequences will almost always begin at a source on-site) suggests a need for certain specific activities that would be more beneficial to facilities with release COI than to facilities with other types of security issues. Such specific activities could include:”

o A comprehensive emergency response and crisis management plan;

o An on-site emergency notification system;

o Safe shutdown procedures for processes of areas using or containing the release COI; and

o Extensive training, including exercises and drills (involving local first-responders when possible), on responding to an uncontrolled release.

Nothing in Long Energy’s written and oral presentations to the Planning Board suggests that any of the above measures are planned for the Duanesburg facility.  By allowing Long to build so close to the road (despite statements in the Comprehensive Plan and Zoning Ordinance recommending deeper placement of commercial facilities), without visual or vehicle barriers, and without fulfilling its initial promise to put a 6′ industrial fence around the facility, the Board made the project a lot less expensive for Long but a lot riskier for neighboring persons and property.

The Board has the authority and responsibility (under NYS Town Law § 274-b(4)) to condition the grant of any special use permit with requirements or limitations needed to make the proposed use compatible with neighboring land uses and the goals of the Comprehensive Plan.  The only condition imposed on Long (and it was mentioned repeatedly) by the Board was the installation of a “sani-potty” for use of truck drivers filling the storage tank or filling up at the tank, and the need to indicate on the Site Plan where that portable toilet would be located.

For a thoughtful discussion of many of the security issues, see the posting “protection against attacks on large propane storage tanks” at the weblog “Chemical Facility Security News.”

. . . Security Risk Update (November 30, 2011):  Patrick Coyle has written an extensive and thoughtful piece at his Chemical Facility Security News weblog on “Large Propane Tanks – Security Issues“.  The piece specifically discusses Duanesburg tank and states:

“[T]he tank in question clearly does not meet the security requirements set forth in the Risk-Based Performance Standards guidance document for a CFATS covered facility.

“. . . There are no perimeter barriers, entrance gates, etc protecting the tank. The few fences around auxiliary equipment are too short to be an impediment to any non-geriatric attackers. There is nothing here to ‘deter, detect or delay’ a terrorist attack on this tank.”

Coyle stresses that those security requirements (such as a barrier fence with controlled entrances and “some sort of protection against vehicle borne improvised explosive devices”) only apply once DHS has concluded that a facility is a likely high-risk terrorist target.  “If the facility is not at high-risk of a potential terrorist attack (ie: not covered under CFATS), then the security processes and equipment required for a CFATS facility are not necessary.”

  . . . 

– the Miner home (L) and the swimming pond they enjoy behind the house – – see more photos of their wonderland in the postinga foggy white Christmas in Duanesburg” –

SEQR Environmental Assessment.     Judge Kramer concluded on July 22 that the Board had done the required “hard look” SEQR (environmental) review.  Under the State’s SEQR laws, environmental effects include adverse impact on the character of the neighborhood, as well as potential safety hazards.  In my opinion, after reading the Board’s file and listening to recordings of their meetings, the Board simply accepted Long’s environmental assessment with no analysis or probing questions.   The court said that the Board had been considering the environmental impact as early as December 2010, when Long came before the Board to present his sketch plan for the needed subdivision.

In reality, all the Board did at the December meeting was remind Long that he still needed to submit his environmental assessment form and that it should be the Long Form, given the size of the tank. Long Energy’s Long Environmental Assessment Form [LEAF] is, in fact, dated February 7, 2011 and the Board issued its Negative Declaration stating there would be no significant adverse environmental effects on February 17, 2011.  There was virtually no discussion of environmental impact at the February 17 site plan meeting, and no chance for public input.

The Board used the circular argument in its Negative Declaration there would be no environmental impact because the area was already zoned for commercial use.  The Negative Declaration also gave as its reasoning that (emphasis added) “A fire safety analysis was completed to minimize the potential for inadvertent propane releases from storage containers and during transfer operations.” [See the section above on CFATS re the need to consider intentional tampering or terrorist propane release, and the section below regarding the inadequate fire safety analysis.] Neither the Board nor the court asked if a bulk propane tank would have adverse effects on the safety and property values of the neighborhood that typical commercial activities (like an actual retail store, or a bank or health club) would not have.  Furthermore, although it surely knew that the storage of flammable or explosive materials is specifically included in the Ordinance’s definition of a Heavy Industrial Use (§3.5.68), the Board made no indication that such a use might need special treatment if somehow allowed in the C-1 Commercial district near homes, businesses and a church.

Nor did Board members ask whether Long should have taken the many additional steps available to make the site safer and less susceptible to intentional or accidental release of gas that could cause an explosion and devastating fireball (e.g., placing the tank underground, siting it much farther back on the parcel, preventing unauthorized access to the facility with perimeter fencing, and preventing vehicle impact with adequate barriers).  In addition, there is  little analysis — and no probing questions — of what to do once there is a release of the propane.  There is no early-notification system, no evacuation plan, inadequate fire ponds for a parcel 1. 5 miles from the nearest fire hydrant, and acceptance of an inadequate estimate of arrival times of responders from other districts. Not one Board member mentioned that Long’s environmental assessment form admitted the proposal has a potential impact on Public Health and Safety due to the risk of explosion, but then boldly claimed the risk would be only small or moderate, and that it could not be mitigated through changes in the project.  Nor was it mentioned that Long’s LEAF states the proposal:

  • will have no effect on the existing community
  • will not set an important precedent
  • faces no significant public opposition

This sort of passive acquiescence cannot possibly constitute the “hard look” at potential environmental impacts mandated by State law.

   . . fire pond?

Fire Safety Assessment.   Before it could grant Long Energy the requested special use permit, the Planning Board had to do much more to fulfill its legal responsibilities than merely decide that a bulk propane tank was a permitted category of use on the C-1 district list.  Under §14.6.2 of the local Zoning Ordinance, it must determine that allowing the proposed use would not adversely affect neighboring property or have “a significant negative effect on existing adjacent land uses.”   Making a thorough fire safety assessment is clearly a top priority when deciding to place a potentially hazardous use like a bulk propane storage tank at any location, and is particularly crucial when the tank is close to residences, other businesses, and a place of worship. By locating the bulk propane storage facility on the subject parcel, the Town and Long Energy have placed nearby persons and property at great potential risk. They have increased that risk by failing to exercise power granted under NYS Town Law § 274-b(4) to impose conditions that would ensure that operation of the proposed facility would be compatible with surrounding uses.  As can be seen from the following discussion, the Town’s perfunctory or non-existent evaluation of many important aspects of the risk of fire and explosion to surrounding persons and property amounts to a reckless disregard for the public safety, as well as a failure to perform its duties under the Town Zoning Ordinance and Comprehensive Plan


The “Exposure to off-site properties and persons from in-plant propane releases” is explained in the Fire Safety Analysis Manual for LP-Gas Storage Facilities used by Long Energy in its Fire Safety Analysis [FSA] report [at p. 7-1, 2005 and 2009 editions].  In part, the Manual explains:

Types of Propane Fires   A propane release inside the LP-Gas facility may affect adjacent properties and off-site populations if the release is of a sufficiently large size. An immediately ignited release will result in a local fire. Depending upon the characteristics of the release and ignition two types of local fires can occur, namely, a pool fire on any liquid pool of propane on the ground or a burning rising fireball.

and:

Hazardous Effects of a Fire: The effect of a propane fire on an off-site property will depend on the type and material of construction of the structure and its distance from the fire and fire size. Similarly, the number of off-site persons adversely impacted by a fire inside a LP-Gas facility will also depend on, (in addition to the characteristics of the fire and the distance between the fire and the population) the type of population, the timeliness of notification, the effectiveness of the evacuation planning and implementation, etc.

Crucially, as discussed in the prior SEQRA section, the Planning Board and Long Energy insist that there is no danger to neighbors from an explosion or fire ball, because the danger radius is no more than 150 feet.   What they have not acknowledged, however, is that the “Release Scenarios” that show the relatively small danger radii are merely for “inadvertent” releases of gas from 1″ and 2″ diameter hoses and piping in normal operation of the facility. [See Table 7.1 in Long’s FSA, at p. 284 of the Record on Appeal] Those scenarios in no way relate to a large rupture of the tank itself caused accidentally or intentionally.  Such a rupture would clearly have an explosion radius or fireball that would reach many neighboring properties.

In addition, Chapter 8 of the Manual outlines requirements for the “Evaluation of Fire Services and Water Supply Requirements.”  It explains, for example [at p. 8-3]:

Response time: Another important consideration of the effectiveness of the Fire Department to respond to an incident is the time it takes the FD to reach the LP-Gas facility. Many fire departments have multiple fire stations or use mutual aid fire companies from other communities to assist them so resources are coming from different locations. It is therefore important to determine the total time for not only the first apparatus but for subsequently arriving apparatus as well. You will need to work with the fire department and gather this information as well. (emphasis added)a

Thus, without adequate i) barriers to prevent tampering and vehicular impact; 2) notification systems; 3) evacuation planning; and 4) assessment of response times and water supplies, the persons living, working or congregating for worship or recreation near the subject parcel are at great and mortal risk, should there be a fire or explosion at the Long Energy Duanesburg Facility.  Among other ways, the Town has failed in its legal responsibilities to the facility’s neighbors and citizens of Duanesburg:

no perimeter fence & no vehicle barriers

A. Failure to require a perimeter fence around the entire facility.  The Town allowed respondent Long Energy to renege on specific representations made on behalf of the applicant in its “Fire Safety Analysis” regarding “Physical Protection Measures.”  Part 5 of Long Energy’s Fire Safety Analysis includes, directly beneath a table entitled “Evaluation of Physical Protection and Other Measures”, the following representation:

“Evaluation of LP-Gas facility’s Physical Protection Measures.  Tank and piping is protected from vehicular traffic and tampering by a chain link fence of at least 6 ft. in height that encompasses the entire property.  Two means of egress are provided at fenced in areas.”

As shown on Long’s Physical Protection form, fencing requirements come under NFPA 58, § 6.12.5.2, which deals with the protection of the facility from tampering and unauthorized entry.

Note: When a Board member meekly asked Mr. Smart at a public hearing whether there would be a fence around the entire facility, he was told it was not necessary and was expensive.  That reply elicited no follow-up question.

Even if the Board or the court believes (as I now do) that there is no specific legal obligation for Long to install a perimeter fence under the Fire Safety Code, the Board’s duty under the Zoning Ordinance and Town Comprehensive Plan to ensure the safety of neighboring properties and the prevention of man-made hazards, and the obligation of a facility owner to protect it from damage due to vehicle impact (NFPA58 §6.6), unauthorized intruders, and tampering, should require such a fence as a condition for issuing the special use permit — or, at the very least, serious consideration and discussion of the issue. Without a perimeter fence, and with no barriers to block impact from vehicles at the front side of the propane tank, accidental or intentional rupture of the tank and explosive release of propane (with resultant fire ball and incineration of nearby persons and property) becomes far more likely.  In addition, intruders can readily approach the unfenced facility, which does not have security personnel or monitoring, directly from two driveways on Western Turnpike, or from the undeveloped parcels to the west and north, or the heavy equipment business to the east.

nearly 200-foot skidmark in front of the propane facility parcel made by a tractor trailer trying to avoid a stopped school bus in June 2011

 . B.  Failure to Mandate the Required Bollards or equivalent measures to Protect the Tank from Vehicular Impact. Section 6.6.1.2 of NFPA 58 (2011 edition) states that “LP-Gas containers or systems of which they are a part shall be protected from damage from vehicles.”  The 2010 Fire Code of New York State (and, by reference, the Uniform Code and Town of Duanesburg Zoning Ordinance) has specific safety requirements that must be met where LP-gas containers [including tanks], regulators and piping are “exposed to vehicular damage due to proximity to alleys, driveways or parking areas.”  [See 2010 Fire Code, Sections 3807.4 and 312.]

– click for larger version showing inadequacy of the vehicle barriers –

Located at the apex of a semi-circular driveway only 75′ from Duanesburg’s busiest road, Long Energy’s 30,000-gallon propane tank is such a facility.  Section 312 of the 2010 Fire Code, entitled “Vehicle Impact Protection”, requires posts or other approved physical barriers for vehicle impact protection.  According to Section 312.2, the guard posts must be:  

(1) constructed of steel not less than 4 inches in diameter and concrete filled; (2) spaced not more than 4 feet between posts on center; (3) set not less than 3 feet deep in concrete footing of not less than 15-inch diameter; (4) set with the top of the posts not less than 3 feet above ground; and (5) located not less than 3 feet from the protected object.”

And, under §312.3, any “other barriers” used “shall be a minimum of 36 inches (914 mm) in height and shall resist a force of 12,000 pounds (53 375 N) applied 36 inches (914 mm) above the adjacent ground surface.”

  Long has installed only a handful of “bollards” across the entire south side of the lengthy propane tank, and none at all on the north side, which faces the road.  The three bollards at the east end of the tank are about 84″ inches apart rather than the required 48″ or less.   Similarly, the alternate type of barriers used on the south and west end of the tank are cement blocks only 2′ high, and not the minimum 36″, as required, and the merely sit on the ground rather than being set in ground and fortified .  This failure to provide the mandated vehicle protection violates Section 312.2 of the 2010 Fire Code by not adequately protecting the entire 30,000-gallon propane tank.  Therefore, the Code Enforcement Officer improperly issued the Certificate of Occupancy. [Click to see my submission to the Duanesburg Zoning Board of Appeals regarding the inadequate vehicle barriers, Oct. 17, 2011.]

C. Failure to locate the propane tank in a more safety-conscious location on the parcel. Long Energy requested, and the Town permitted placement of the propane tank at the minimum setback allowed in the Zoning Ordinance for any significant structure, a mere 75′ from Route 20, the Town’s busiest road.  The lot is 300′ deep (and Long could have purchased a deeper, larger parcel from the owner), and the tank could have been installed much farther from the road, as is anticipated in the Access Management requirements of the Town’s Comprehensive Plan (at 33), which are specifically repeated in the Introduction to § 11 of the Zoning Ordinance, which establishes the C-1 Commercial Zone:

Objective:  Adequately consider access management when locating commercial and residential development along state, county, and local roads.

Frequently local governments are pressured to locate commercial developments in strips along major transportation routes.  Locating commercial uses in this manner along transportation corridors increases the number of access points (driveways and intersections), decreases the level of service of the road, and creates a conflict between local and through traffic.

Had the Board merely followed its governing Ordinance and acted consistent with the Comprehensive Plan, the tank would be placed at a location far less susceptible to impact from vehicles out of control on Western Turnpike (Rt. 20), due to excessive speed, tailgating, poor visibility caused by frequent fog, equipment failure, propane tankers or bobtail trucks entering or exiting the Facility from either end of the circular driveway, etc.

D.  Failure to provide early detection devices and evacuation planning. Long Energy has admitted that it has not installed any early notification system or devices such as gas detection monitors and automatic dialers at the unmanned Duanesburg facility.  Should there be an emergency on site that could be controlled prior to causing a disastrous fire or explosion, its detection would be purely fortuitous – by a neighbor or passerby who happened to see the problem). Nonetheless, the Town has not required Long Energy to install such devices, nor to present a plan for notification and evacuation of off-site persons.  This is contrary to the requirements and recommendations found in Section 7.1 of the Fire Safety Analysis Manual.

Long also failed to give details about the proximity of neighboring residences and businesses, and did not show them on its Site Plan.  In addition, Long never gave details (Form 7.1), and the Board never inquired about, the distances it used and scenarios it considered in evaluating the impact on the Jehovah’s Witnesses Kingdom Hall (an “Assembly Occupancy” house of worship), which is located across the road at 2240 Western Turnpike.

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E. Failure to Ensure Adequate Water Supplies and Response Times.  Long Energy indicates in it Fire Analysis Report (form 8.4) that there are 3 ponds situated 500 to 1500 feet away, that are available as water sources for fire suppression.  In its sketch plan review at the December 2010 Board Meeting, Long Energy also stated it had an expert working with the Fire Department to establish its specific requirements for a fire pond on the subject parcel.  It reneged on that promise and instead relied “as a last resort” on the three ponds located on neighboring properties. Long Energy and Members of the Planning Board were aware that the neighboring ponds were quite remote and possibly inaccessible, and were not suitable for use as fire ponds, as they did not have dry hydrants or other equipment necessary to extract the water. There was also no acknowledgment that the ponds are frozen over much of each winter (click on the photo of the Miners’ swimming pond at the head of this paragraph, taken December 2009).  Long also failed to document the response time of local and neighboring fire departments other than the first units on the scene.

– heavy equipment leasing and repair business next to propane facility –

F. Failure to Assess the Hazard of Nearby Welding.  Welding and metal cutting activities are regularly undertaken at 2261 Western Turnpike, the parcel immediately to the east of the Long Propane facility, where JHI Industries provides heavy equipment sales, leasing, servicing, and repairs. (see photo above)  That parcel was involved in Long’s simultaneous subdivision request before the Planning Board, and the Board should also have been well aware of the nature of the business operated in close proximity to the bulk propane tank from prior proceedings concerning a special use permit for that parcel to engage in the heavy machinery business.  Form 7.2 of the 2005 and 2009 editions of the Fire Safety Analysis Manual for LP-Gas Facilities [the Manual], and corresponding sections of NFPA 58, indicate that “Metal cutting, welding, and metal fabrication” is a Neighboring Operation that is hazardous to an LP-Gas Facility.    Nonetheless, the Town never inquired as to the potential hazards posed for the LP-Gas facility by the machinery repair and servicing activities at JHI Industries.  Indeed Long Energy denied the existence of such activities in its Fire Analysis Report, on the form “Exposure to LP-Gas Facility from External Hazards: Types of Neighboring Operations.”  Long Energy indicates on that form with the term N/A at Item #2 that the activity “Metal cutting, welding, and metal fabrication” does not exist on neighboring properties. The Town never inquired about that mis-statement of the facts.  

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Because Long did not accurately fill out Form 7.2 in its Fire Safety Analysis, showing the existence of the welding hazard nearby, it incorrectly stated on the form “Analysis Summary on Exposure from and to the LP-Gas Facility” that there were zero outside exposures.   Had Long correctly indicated the existence of the welding exposure hazard on that form, it would have been required under Chapter 9 of the Fire Safety Analysis Manual to “implement any necessary changes in design to bring the new facility into compliance with the Code.” [click to see a composite image of the relevant portions of Chapter 9] According to Chapter 9, page 9-3, of the Manual, the existence of even one such outside exposure hazard requires consideration of 

. . . one or more of the following design alternatives.

1 Implement procedures to monitor neighboring activity.

2 Install means in the adjacent plant to shut down the LP-Gas plant in case of an emergency in that plant.

The Planning Board never considered either alternative, nor any other, to remedy the Code violation created by placing an LP-Gas facility so close to the welding hazard next-door to the Long Propane Facility.

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G. Failure to Require Written Fire Safety Analysis from the Town’s Fire Chief.  When asked during Long Energy’s Sketch Plan presentation in December 2010 if the Applicant would supply “a paper” from the fire department assuring the Board that “everything is okay”, William Smart, the Applicant’s engineer and representative presenting its Application, promised to have such a letter to the Board ten days before the next Meeting, in February.  No such letter appears in the record or has been referenced by any Board member or office staff.  Instead, when asked at the public hearing in March 2011 about fire safety, Mr. Smart replied that the fire chief was “here last month” and the “fire department indicated he had no issue.”  From my listening to the audio record of the February 2011 Meeting, which admittedly has a lot of indecipherable mumbling, no such reassurance was stated by the fire chief. Summary. In determining the adequacy of fire safety, as with other aspects of its review of the Application, the Town has failed to follow the requirements of the National Fire Protection code, and the Town Zoning Ordinance, or to use the standards and guidelines provided in the Comprehensive Plan to protect nearby property owners.  The Implementation section of the Plan states (at 48):

Such standards and guidelines will give the responsible board the authority and knowledge necessary to steer an applicant’s design in the direction the Town wishes to go as articulated in the Comprehensive Plan.

Here, the “responsible Board” has not acted responsibly nor lived up to its responsibilities.

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Esperance LP Gas Co. The Town, Long Energy and Judge Kramer pointed to the Esperance LP Gas Company [“ELPG”] as an example of Duanesburg allowing propane storage in its C-1 zone — and said the Miners were therefore on notice that bulk propane storage was allowed in Duanesburg.   The Esperance facility is about 8 miles from the Miners’ place and, as you can see in the photo at the head of this paragraph, is fully fenced to help prevent unwanted access; it also has vehicle-stopping bollards protecting all exposed sides of the two tanks.  In addition, the tanks are about twice as far from the road as the one at the Long Energy facility, and the facility — which unlike Long’s is “manned” with offices and a parking garage on the lot — has no nearby residences.

Furthermore, ELPG, whose headquarters is on the site, was founded at that location in 1983, a year before Duanesburg’s first zoning ordinance was enacted.   Of course, whether the firm’s ability to have storage tanks at the site was grandfathered in, or Duanesburg made an error allowing the additional tank a few years ago, Bill and Cyndi should not be barred from contesting what they believe was a clearly unlawful special use permit that endangers their safety and lowers their property values.

Over and over, the Planning Board and its counsel have insisted that Esperance LP-Gas is a “retail facility.”  They put 66 pages on the Record before Judge Kramer from ELPG’s two applications to install large propane tanks on their property, to show the existence of the precedent.  The word “retail” does not appear on even one of the 66 pages.  The Town did not include ELPG’s Certificate of Occupancy in its submission, to show what use and occupancy is approved for that site.  In fact, occupancy is for the storage of propane as a Category H (high-hazard) use.

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.   “Retail” and “Shop” and the PLAIN MEANING Rule.  The Planning Board and the Supreme Court in Schenectady County clearly should have rejected Long Energy’s application for failing to name a permitted use.  The bulk storage of propane for distribution in Long’s bobtail trucks is simply not a use allowed in the C-1 district, as it does not fit into any of the 25 permitted uses listed in §11.2 of the Duanesburg Zoning Ordinance.  Long Energy had to specify which category of use it was invoking when applying for a special use permit.  After consulting with the Duanesburg planning office staff,  Long applied for a special use permit under the use category of  “Retail or wholesale stores or shops”, which is subsection (3) of  §11.2.   Because the Zoning Ordinance has no special definition for any of those words, the common usage and meaning of the words must be their/our guide.  (Most courts and agencies refer to an edition of Merriam-Webster’s dictionary to determine the common usage.)

Apparently believing they were all quite sly and creative, the Board (and the planning office) tried to get around this by calling the proposal a “retail distribution facility” and saying it is retail because propane is eventually “sold at retail.” (In the propane industry, a “retail distribution facility” is the bulk storage facility of a firm that sells propane at retail, where its “bobtail” trucks fill up before making deliveries to customers, not a facility where the propane is available for retail sales.) There is  simply no legal basis for ignoring the words “stores or shops” or for mangling the meaning of retail for a location that makes no sales to customers (it is not a wholesale operation, either, and no one has suggested that it is, since the propane is not being sold at that location to businesses for resale).

Bill daydreams of tanks and shops

Sometimes courts “defer” to the special expertise of an agency when determining the meaning of statutory words.  But, no special deference is given to an administrative or regulatory agency when it comes to the definition of clear and unambiguous words that do not have a special definition built into the governing law.  Thus, the NYS Court of Appeals, the highest court of our state, explained the use of the plain meaning rule in interpreting clear and unambiguous words in a 1997 zoning case called Raritan Development Corp. v. Silva. (Read the full opinion here.) The Raritan court said [citations to other cases omitted]:

“This Court has long applied the well-respected plain meaning doctrine in fulfillment of its judicial role in deciding statutory construction appeals.   We agree that ‘[i]t is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature’ but we have correspondingly and consistently emphasized that ‘where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used’ . . . .

“We have provided further clear teaching and guidance that ‘[a]bsent ambiguity the courts may not resort to rules of construction to broaden the scope and application of a statute,’ because “’o rule of construction gives the court discretion to declare the intent of the law when the words are unequivocal’.  Lastly, ‘[t]he courts are not free to legislate and if any unsought consequences result, the Legislature is best suited to evaluate and resolve them..”

As recently as May 2011, in Erin Estates, Inc. v. McCracken, 2011 NY Slip Op 03707,  the appellate court for the 3rd Department, which would hear any appeal from a Schenectady County Supreme Court decision, applied the Plain Meaning rule in a zoning case from Chemung County.  The meaning of the words “sales lot or area” was the crux of the case.  Here are relevant quotes from the Erin Estatescourt decision:

  • “A fact- based interpretation of a zoning ordinance that determines its application to a particular use or property is entitled to ‘great deference’ [citations omitted].”  However, “deference is not required when reviewing a pure legal interpretation of terms in an ordinance”.
  • “Here, the meaning of the term ‘sales lot or area’ in the ordinance at issue presents a purely legal question in which no deference to the ZBA’s interpretation is required.”
  • “A statute or ordinance is to be construed as a whole, reading all of its parts together to determine the legislative intent and to avoid rendering any of its language superfluous.”
  • “Unambiguous language is to be construed to ‘give effect to its plain meaning’.”

As the Erin Estatesdecision notes, a word should also be defined in a way that is in harmony with the rest of the law that is being interpreted.  In applying that principle, the Board and the court should have referred to the following definition in the Duanesburg Zoning Ordinance (emphasis added):

§3.5.68 Industrial, Heavy. A use engaged in the basic processing and manufacturing of materials or products predominately from extracted or raw materials, or a use engaged in storage of . . .  flammable or explosive materials . . . .

If, as the Town Zoning Ordinance states, the storage of flammable or explosive materials is a Heavy Industrial Use, it surely is not permitted in Duanesburg’s C-2 Light Industrial zone nor its C-1 Commercial zone.  Indeed, Duanesburg has no Heavy Industrial zone.  The only reason to define such uses in the Ordinance is to ensure that people (applicants, board members or courts) do not try to sneak one of the listed Heavy Industrial uses into one of the other zoning districts.

  It’s worth noting, although not the least bit surprising, that the two defined terms in the Duanesburg Zoning Ordinance that use the words retail and store do so in a way totally consistent with the common meaning of those terms, and not at all consistent with treating a bulk propane tank as a retail store:

3.5.36     Convenience Store.   A store providing retail sales of grocery items and motor fuels to the general public.  As an accessory use only, the incidental sale of fast food and beverage items is  permitted.

3.5.45     Drive-in Establishment.  A place of business being operated for the sale and purchase of retail food and other goods, services, or entertainment, which is laid out and equipped so as to allow its patrons to be served or accommodated without entering the premises.

That’s right, they actually expect customers to arrive and purchase or use the products or services at a building that contains consumer-size items for direct sale to the customer.

The National Fire Protection Code (NFPA 58, 2011 edition) reflects the usual treatment of terms not otherwise defined in a statute, rule or regulation:

Chapter 3 Definitions 3.1 General.  [terms not defined . . . ] “they shall be defined using their ordinarily accepted meanings within the context in which they are used.  Merriam-Webster’s Collegiate Dictionary, 11th edition, shall be the source of the ordinarily accepted meaning.”

Judge Kramer did not in any way address the definition issues that were so crucial to the authority of the Planning Board to issue the special use permit in the Commercial zone. Instead, the Judge insisted that the Board could leave the interpretation to the Town’s code enforcement officer as to whether the tank fit into the retail shop category, so that a special use permit application, rather than a variance application, was appropriate.  That conclusion is directly contrary to §14.6.2 of the Zoning Ordinance, which explicitly states (emphasis added) that “No special use permit shall be granted until the Board shall find and determine that . . . Such use will comply with all other terms, conditions, requirements and standards imposed by this Ordinance.”  (Judge Kramer also said the Miners should have challenged the determination of the Code Enforcement Officer that the special use permit was appropriate, and it was too late to do so.) For the record, here are relevant definitions from Merriam Webster’s International Dictionary, 11th Edition:

retail – to sell in small quantities directly to the ultimate consumer

wholesale adj. – of, relating to, or engaged in the sale of commodities in quantity for resale

store: a business establishment where usually diversified goods are kept for retail sale <a grocery store> — compare shop

shop 1: a handicraft establishment : atelier 2 a : a building or room stocked with merchandise for sale : store b also shoppe : a small retail establishment or a department in a large one offering a specified line of goods or services <a millinery shop> <a sandwich shop> 3: a commercial establishment for the making or repair of goods or machinery <machine shop> <repair shop> 4 a : a school laboratory equipped for industrial arts education b : the art or science of working with tools and machinery 5 a : a business establishment : office <a public relations shop>

 Town of Duanesburg Zoning Ordinance: The complete Zoning Ordinance can be found here.   The following provisions appear to be the most relevant to the Miners’ propane tank controversy:

SECTION 1 TITLE AND PURPOSE OF ORDINANCE This ordinance shall be known as “The Town of Duanesburg, N. Y. Zoning Ordinance”. 1.2 Purpose This ordinance is enacted in order to promote the health, safety, morals and general welfare of the Town of Duanesburg by dividing the Town into Districts and by regulating and restricting the location, construction and use of buildings and structures, and the use of land in these Districts. It is hereby declared to be the specific intent and purpose of this ordinance to preserve wherever possible the natural beauty and ecology of forests, streams, watercourses and bodies of water and to preserve the rural character of the Town. This ordinance shall be construed, interpreted and applied in accordance with the fulfillment of these purposes and in compliance with the latest approved version of the Comprehensive Plan adopted 1991, Resolution 154-91.

Section 2 ESTABLISHMENT OF ZONING DISTRICTS AND BOUNDARIES The Town is divided into the following districts: 6) Commercial (C-1) The Comprehensive Plan specifies that commercial zones should be deep, affording the opportunity for development of off-highway centers which could share common entrances and exits, thereby minimizing the interruption of traffic on high volume roads. Strip development is discouraged. (See Section 11) 7)

Manufacturing & Light Industrial (C-2) The use of performance standards through the Special Use Permit procedure make it possible to accommodate light industrial development while protecting the adjoining properties. (See Section 12)

Article 3 Definitions §3.5.68 Industrial, Heavy. A use engaged in the basic processing and manufacturing of materials or products predominately from extracted or raw materials, or a use engaged in storage of, or manufacturing processes using flammable or explosive materials, or storage or manufacturing processes that potentially involve hazardous or commonly recognized offensive conditions subject to performance standards determined by the Planning Board in a manner that does not produce odor, dust, smoke, noise, gas, fumes, cinders, vibration, glare or liquor or solid wastes which is offensive as determined by normally accepted standards.

SECTION 5 DISTRICT REGULATIONS IN GENERAL

5.1 USE REGULATIONS 5.1.1 Permitted Uses. Permitted uses of land and buildings in this chapter shall be permitted in the districts indicated under the conditions specified. No building or tract of land shall be devoted to any use other than any uses permitted within the zoning district in which such building or tract of land is located, with the exception of the following: 1) Except as herein provided, uses lawfully established prior to the effective date of this Amendment. 2) Special use and use variance permitted in accordance with the provisions of this Amendment.

5.1.2 Special Uses. Special uses, as herein listed, may be permitted in the zoning district indicated, subject to the issuance of special use permits and site plan approval. Procedure is established in Section 14.6.2.

SECTION 11  COMMERCIAL (C-1) The Comprehensive Plan specifies that commercial zones should be deep, affording the opportunity for development of off-highway centers which could share common entrances and exits, thereby minimizing the interruption of traffic on high volume roads. Strip development is discouraged.

11.1    PERMITTED USES 1)    Home occupations, (Subject to public hearing and site plan review by the Zoning Board of Appeals). (see 14.5.4)

11.2    USES PERMITTED BY SPECIAL USE PERMIT

1)    Municipal parks and playgrounds. 2)    Roadside stands. 3)    Retail or wholesale stores or shops. 4)    Churches and other places of worship. 5)    Federal, state, county or town municipal buildings. 6)    Funeral Homes. 7)    General Offices. 8)    Post Offices. 9)    Professional Offices. 10) Banks. 11)    Gasoline and Automobile Service Stations. 12)    Shopping Centers. 13)    Bowling Alleys. 14)    Hotel or motels. 1 5) Restaurants. 16)    Theater or concert halls. 17)    Amusement parks. 18) Campgrounds. 19)    Single and two family dwellings. 20)    Public utility uses (See Transmission Tower Ordinance). 21)    Bars or nightclubs. 22)    Barber shops and Beauty shops. 23)    Firehouses and Ambulance buildings 24)    Clubs and organizations, including, but not limited to Health Clubs, exercise gymnasiums, thereby allowing the same by special use permit within the C-1 District in the Town.(Amended April 13, 206, Resolution #81-06.

SECTION 12 MANUFACTURING & LIGHT INDUSTRIAL DISTRICT (C-2) The use of performance standards through the Special Use Permit procedure make it possible to accommodate light industrial development while protecting the adjoining properties.

12.1 PERMITTED USES Home occupations, (Subject to site plan review by the Planning Board). (see 14.6.3)

USES PERMITTED BY SPECIAL USE PERMIT 1) Manufacturing and Light Industrial. 2) Warehouses and Storage Units. 3) Health Care Facilities. 4) Wholesale / Retail Stores and Shops. 5) Utilities, (See Transmission Tower Ordinance). 6) Firehouses and Ambulance buildings 7) All uses permitted by Special Use Permit in Commercial District. (Section 11.2)

SECTION 14 ADMINISTRATION

14.1    INTERPRETATION AND APPLICATION In interpretation and application, the provisions of this Ordinance shall be held to be minimum requirements adopted for the public health, safety, general welfare. If the requirements of this Ordinance are at variance with the requirements of any other lawfully adopted rules, regulations or ordinances, the more restrictive, or that imposing the higher standards shall govern.

14.2    UNIFORM CODE ENFORCEMENT OFFICER The Town Board shall appoint the Uniform Code Enforcement Officer who shall be charged with the general administration and the enforcement of this Ordinance and the executive administration of the New York Uniform Fire Prevention and Building Code. The Town Board shall fix the salary or remuneration of such office and shall provide for the payment thereof. The Town Board may also appoint a Deputy Uniform Code Enforcement Officer who shall be similarly empowered to act during the absence of or at the direction of the Uniform Code Enforcement Officer. It shall be the duty of the Uniform Code Enforcement Officer to:

1. Issue building permits and certificates of occupancy where compliance is made with the provisions of this Ordinance, and refuse to issue or revoke the same in the event of non- compliance. Prompt written notice of such refusal or the revocation of any permit and the reason therefore shall be given to the owner or occupant of the premises.

2. Keep the Zoning Board of Appeals and Planning Board advised of all matters, other than routine duties, pertaining to the enforcement of this law and keep all records necessary and appropriate to his office and to file them in the office of the Town Clerk, including records of all permits and Certificates of Occupancy or Compliance issued or withheld.

3. Refer appropriate matters to the Zoning Board of Appeals or the Planning Board for actions required by those Boards. a) Refer applications for Home Occupation Business Permits to the Zoning Board of Appeals. With the Zoning Board of Appeal’s approval, issue Home Occupation Business Permits with any conditions required by the Zoning Board of Appeals. b) Refer applications for Special Use Permits to the Planning Board. . . . .

14.6    PLANNING BOARD

14.6.1    Powers and Duties. 1) While the Zoning Board of Appeals concentrates primarily on interpretation of this Ordinance, the granting of variances from this Ordinance, and interpretation of district boundaries, the Planning Board is focused broadly on review and approval of sub- divisions and commercial development, changes to streets and roads, development and maintenance of the Town Comprehensive Plan, town environmental reviews and Special Use Permits and Site Plan Review as specified herein.

2) The Planning Board shall comply with the provisions of the State Environmental Quality Review Act under Article (8) eight of the Environmental Conservation Law and its implementing regulations as codified in Title (6) six, part (617) six hundred seventeen of the New York codes, rules, and regulations.

3) The Planning Board is authorized and empowered by the Town Board to approve Plats showing lots, blocks or sites, with or without streets or highways, and to approve the development of entirely or partially undeveloped plats already filed in the office of the County Clerk.

4)    The Planning Board is authorized to review site plans submitted with applications for Home Occupation Business Permits. In its review, The Board may approve, or approve with conditions, or modifications, or it may disapprove the application.

Site Plan Approval. The Planning Board is authorized and empowered by the Town Board to review, approve, approve with modifications or disapprove all sit plans as hereinafter designated. Applicability. Site Plan approval is required in the Town of Duanesburg for: a)    All uses requiring a Special Use permit b)    Those uses listed in the zoning district as requiring Site Plan approval.

Review of Site Plans. The Planning Board’s review of site plans shall include, as appropriate, but not limited to, the following general considerations:

a)    Location, arrangement, size, design and general site compatibility of buildings, lighting and signs.

b)    Adequacy and arrangement of vehicular traffic access and circulation, including intersections, road widths, pavement surfaces, dividers and traffic controls.

c)    Location, arrangement, appearance and sufficiency of off-street parking and loading.

d)    Adequacy and arrangement of pedestrian access.

e)    Adequacy of storm water and drainage facilities.

f)    Adequacy of water supply and sewage disposal facilities.

g)    Adequacy, type and arrangement of trees, shrubs and other landscaping constituting

14.6.2 Special Use Permits. After due public notice and hearing and subject to appropriate conditions and safeguards, the Planning Board may issue special use permits for any of the uses for which this Ordinance requires the obtaining of such permits. No special use permit shall be granted until the Board shall find and determine that:

a) Such use is reasonably necessary or convenient to the public health, welfare or the economic or social benefit of the community;

b) Such use is suitably located in relation to transportation, water and sewerage requirements of this Ordinance or, where not specifically required, that such facilities are otherwise adequate to accommodate anticipated use;

c) The character of the neighborhood and values of surrounding property is reasonably safeguarded;

d) Such use will comply with all other terms, conditions, requirements and standards imposed by this Ordinance.

e) The use is consistent with the Town Comprehensive Plan.

14.6.2.4 Planning Board Formal Review. The Board conducts a formal review of the site plan data prior to action on the Special Use Permit. a

)    Within sixty-two (62) days after receipt of the completed application and all required site plan data and information, the Board will conduct a public hearing.    The notice of the public hearing to be published at least five (5) days prior to the date of the Hearing in a newspaper with general circulation within the Town, normally the officially designated newspaper.

b)    In addition to holding a public hearing, the Board will notify by mail at least ten (10) days prior to the public hearing all adjacent property owners within 1000 feet, as measured in all directions from the property boundaries.

c)    The Board’s detailed review of the application elements for the planned use shall be in such depth and detail to ensure the following:

1.    Determine whether the proposal is subject to the State Environmental Quality Review Act and, if so, to initiate the process in accordance with Section 14.6.2.7.

2.    In its determination, the proposed use will not have a significant negative effect on existing adjacent land uses.

3.    All requirements of this Ordinance are met and any variances necessary have been identified.

4.    Adequacy and arrangement of pedestrian traffic access and circulation, including intersections, road widths, pavement surfaces, channelization structures and traffic control.

5.    Location, arrangement, appearance and sufficiency of off-street parking and loading is satisfactory.

6.    Location, arrangement, size, design and general site compatibility of buildings, lighting and signage is satisfactory.

7.    Adequacy of storm water and drainage facilities.

8.    Adequacy of water supply and sewage disposal facilities.

9.    Adequacy of the type and arrangement of trees, shrubs, and other landscaping constituting a visual and/or noise deterring buffer between the applicant’s and adjoining lands, including the maximum retention of existing vegetation.

10.    Compliance with Performance Standards established in Section 14.6.4 of the Zoning Ordinance to ensure protection of adjacent or neighboring properties against noise, glare, unsightliness or other objectionable features.

11.    Adequacy of fire lanes and other emergency zones and the availability of fire water, water points or hydrants.

14.6.3  Performance Standards.The Planning Board under its powers of site plan review and special use permit approval shall decide whether proposed uses can meet the performance standards set forth herein. Failure to operate in compliance with these standards shall be a violation of the Zoning Ordinance. Enforcement of continued compliance is the responsibility of the Uniform Code Enforcement Officer. The Uniform Code Enforcement Officer shall investigate any purported violation of performance standards. All violations as ascertained by the Uniform Code Enforcement Officer shall be terminated within (30) thirty calendar days of notification of the user and owner. Failure to comply shall subject the violator to the penalties specified in Section 15 of the Zoning Ordinance. All uses shall operate in compliance with the following standards. Performance Standards. In the Town, uses are not permitted which exceed the following standards measured at individual property lines. The Planning Board under its powers of site plan review and approval shall decide whether uses meet the standards. Uses shall meet State air and water pollution standards and shall not:

1. Emit noise in excess of 70 decibels, dba scale, of a standard sound level meter. 2. Emit odor, which is considered offensive. 3. Emit dust or dirt, which is considered offensive. 4. Emit noxious gases, which endanger health, comfort, safety, or welfare of any person, or have a tendency to cause injury or damage to property, business or vegetation. 5. Cause, as a result of normal operation, a vibration, which creates displacement of 0.003 of one inch at the property line. 6. Create glare by lighting or signs which could impair a driver’s vision 7. Cause a fire, explosion or safety hazard. 8. Cause harmful waste to be discharged into sewer, streams, or bodies of water, or to be stored on said property.

 Town of Duanesburg Comprehensive Plan.  The complete Comprehensive Plan can be found here.   The following provisions appear to be the most relevant to the Miners’ propane tank controversy. Town of Duanesburg Comprehensive Plan p. 1]

Why a New Comprehensive Plan? The existing Comprehensive Plan is nearly 15 years old and does not necessarily reflect new community concerns or adequately address community growth issues. In recent years the Town has experienced an increase in development activity and is beginning to feel the pressure of new growth. While the Town cannot and does not want to stop growth, it should occur in a managed and productive manner. The new Plan provides the road map to ensure that the Town remains a desirable place to live and work – a town with appealing neighborhoods, good housing, adequate traffic circulation, quality public services, and a pattern of private and public land use which is both desirable and efficient.

What is a Comprehensive Plan? The Comprehensive Plan is one part of the land use planning process. The Plan is a public document which is adopted by the Town as a policy guide to decisions which affect the physical development of the Town. It provides the framework for identifying what the community will look like (goals, objectives, principles), how the community intends to get there (standards, devices, instruments) and the purposes for doing so. This new Comprehensive Plan will serve as a long-range guide for both public and private decisions that influence the community. It will also provide the rational basis to update the zoning and subdivision laws, provide guidance on capital expenditures, and identify the goals, objectives, and policies for the immediate and long-range protection, enhancement, growth and development of the Town.

2] How is the Plan Implemented? The Comprehensive Plan is a public document that is adopted by the Town Board as a policy guide to future public and private land use decisions in the Town. The Plan is not, however, self-implementing. In order that the policy decisions in this Plan are implemented, certain land use control mechanisms are necessary. These mechanisms include: 1. A zoning ordinance to regulate land use, housing density, and the size and location of structures; 2. A subdivision ordinance to ensure that new development is properly designed, cost effective, and does not have a negative impact on the neighborhood; 3. A process of environmental review by the specific board of responsibility to ensure that the environmental impacts of developments are given adequate consideration pursuant to the State Environmental Quality Review Act and adverse impacts to the environment are minimized or avoided to the maximum extent practicable.

25] Natural & Manmade Hazards Review of existing natural and manmade conditions is a key element in the process of making land use decisions. Floods, landslides, hazardous material spills or dam failures are only “disasters” when people and property are affected. One important way to minimize our risk from natural or manmade hazards is to plan and develop our communities with those hazards in mind. Minimizing risk is an essential focus of public safety planning. Every land use or public facility action taken by local government should be based on a recognition that some natural and manmade risk exists.

The level of risk involved then becomes critical in determining when government involvement becomes necessary or desirable. The challenge is to balance the probability of potential hazard impacts with the characteristics of proposed land uses. Natural Hazards Within the Town the primary natural hazard is the floodplains of the Schoharie Creek and Normanskill. Secondarily, there are steep slope areas where soil stability can pose a potential landslide concern and overall steep grades can present vehicle access difficulties. Manmade Hazards Manmade hazards include dam failure (Gilboa and Mariaville Lake), and hazardous material spills/explosions associated with I-88, Canadian Pacific Railroad, natural gas pipelines, and some fixed sites such as fireworks manufacturing facilities. Although the probability of an accident involving dam failure or hazardous materials within the Town is rather low it should not be ignored. Within the Town the presence of the above listed transport and fixed sites warrants the Town’s consideration in development of land use plans and review of developments that are located within the area vulnerable to a hazard incident. A map depicting the areas of vulnerability for manmade and natural hazards is contained in Appendix D.

32] Land Use Goal: To preserve the rural character of the Town by promoting a land use pattern that strengthens existing hamlet centers, protects important natural resources, maintains an efficient transportation network, provides for economical services and facilities, fosters an orderly pattern of growth and development.

Objective: Adequately consider access management when locating commercial and residential development along state, county, and local roads. Frequently local governments are pressured to locate commercial developments in strips along major transportation routes. Locating commercial uses in this manner along transportation corridors increases the number of access points (driveways and intersections), decreases the level of service of the road, and creates a conflict between local and through traffic. A related problem is the establishment of residential strips in rural areas. As with commercial strips, the establishment of residential lots with individual driveways contributes to the conflict between local and through traffic, decreases the level of service along the road, and inhibits the development of land which does not have direct access to a major roadway. The capacity of roads used for through traffic can be maintained by: Creating deeper roadside zones to encourage centers of development and discourage strips. Encouraging developments to share a common access where appropriate. Encouraging development within or adjacent to existing hamlet centers. Planning for the construction of service roads between commercial uses.

33] Objective: Continue to allow low impact commercial developments such as antique/ craft shops and small professional offices in the Rural Residential Agricultural District. Commercial uses in the rural residential/agricultural areas should be designed and located with an informed respect for neighboring land uses and site limitations. Continue to require a special use permit for such uses, to ensure that appropriate local review can take place to limit any potential negative impacts.

35]  Objective: Encourage the growth of service, retail, and small industrial businesses which are compatible with existing land uses. Adopt land use regulations that permit a wide variety of uses as long as they meet established performance standards that ensure compatibility with the surrounding area. Performance standards regulate the impact of uses (i.e., noise, odor, vibrations, etc.) rather than the uses themselves. They should be readily measurable and enforceable. Continue to support home-based businesses (home occupations) that are compatible with surrounding land uses. Regulations for home occupations should establish clear standards.

35] Objective: Support improved aesthetics through the use of appropriate architecture, site design, landscaping, control of signs, and general upkeep.

38] Objective: Attempt to maintain the Town’s rural atmosphere as development occurs. Goal: Minimize the risk to persons and property from a natural or manmade disaster. 46]

C-2: MANUFACTURING & LIGHT INDUSTRIAL DISTRICT

47] Historically, there has been little or no demand for industrial land in the Town. The lack of a large pool of skilled workers and the lack of central water and sewage systems are factors that discourage industry from locating in the Town. However, the Town must provide the potential for this type of development. There are approximately 470 acres around the I-88 exit 24 interchange and the Duanesburg Hamlet area zoned C-2. One other 88 acre parcel at the intersection of Route 20 and Gage Road, developed as a building supply warehouse, is also zoned C-2. The C-2 zone is predominantly vacant or agricultural property. Like the C-1 District, some parcels have been subdivided for single family dwellings.

The principal difference between the C-1 and C-2 zones is C-2 allows Manufacturing and Light Industrial uses and warehousing and storage units. While Heavy Industry is defined in the Town’s Zoning Ordinance, it is not clear whether or not it is permitted.

According to the household survey, 70 percent of respondents indicated that commercial and light industrial uses should be encouraged as land uses. Conversely, 91 percent said the Town should discourage heavy industry. Given the prominent location of the C-2 District, proposed uses will need to be reviewed carefully. All uses must currently comply with adopted performance standards. As with the C-1 District however, commercial development may be limited due to the lack of public sewer and water. Small industries can blend harmoniously into rural landscapes by carefully applying site plan and performance standards. Adequate acreage appears to be available to accommodate such uses. However, additional areas should be considered for small industrial enterprises if appropriate site plan and performance standards are met.

48] Implementation The Comprehensive Plan by itself does not change the Town’s zoning law, subdivision ordinance, or other land use controls nor does it ensure the implementation of the recommendations contained in the Plan. Instead, the Comprehensive Plan provides the rational basis to update the zoning and subdivision laws, provides guidance on capital expenditures, and identifies the goals, objectives, and policies for the immediate and long-range protection, enhancement, growth and development of the Town.While the Town will make important decisions on the location of utilities, parks, and other public facilities, the vast majority of development in Town will be carried out by private individuals and organizations—whether it is a landowner seeking to subdivide the family farm or a business seeking a new location to expand. Therefore, it is private actions that will ultimately drive community development, guided and regulated by the Comprehensive Plan and Town laws. While the Town cannot force a private individual to develop a property for a particular use, where there is a good Comprehensive Plan followed and updated on a continuing basis, a reliable foundation for private investment can be created. This encourages good development and can help accomplish many of the recommendations in the Comprehensive Plan. Similarly, while it may not be possible to legislate “good design,” clear development standards will establish clear expectations and form the basis for well-reasoned decisions. Such standards and guidelines will give the responsible board the authority and knowledge necessary to steer an applicant’s design in the direction the Town wishes to go as articulated in the Comprehensive Plan. Possibly more importantly, they will clearly articulate land development options that a landowner/developer can pursue aside from a typical subdivision. Providing 49] guidance on preferred development alternatives and articulating design options is important since voluntary actions by landowners will be critical to the future built environment of the Town.

2 thoughts on “Duanesburg needs a dictionary

  1. It sounds like Judge Kramer and the Duanesburg Planning Board are in the back pocket of big business, makes you wonder how much they were paid. If God forbid an accident does happen they will probably turn it around and blame Bill Miner for building his house there. This is one of the problems in this country, our elected self serving officials don’t give a damn about the people who voted them in only the ones who line their pockets.

    • Thanks for taking the time to opine, Bill. I really don’t think anyone is being paid, but I can’t figure out the motivation or mindset of either the Board or the Judge. The Board members are appointed to their positions, which are rather thankless. I’d love to know their philosophy on the meaning and purpose of planning and zoning.

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