challenge to Duanesburg propane tank goes to the Appellate Court

– the 30,000-gallon propane tank that Duanesburg permitted in the category of  “retail shop or store” is seen from near the Miners’ front door; click on the image for a larger version –

    By filing their Appellants’ Brief with the 3rd Judicial Department Appellate Division on Monday, March 19, 2012, Bill and Cyndi Miner continued their fight against a giant, 30,000-gallon propane storage tank that the Town of Duanesburg allowed Long Energy to place within 200′ of their home last year, in its restrictive C-1 commercial zone, under the special use category of a “retail store”.  [The story of their court battle is told at our weblog post “Duanesburg needs a dictionary,” July 14, 2011, with many photos, linked resources and updates.] Click for the Statement of Facts from the Miners’ Brief, dated March 19, 2012, Miner v. Town of Duanesburg Planning Board et al, NYS Supreme Court, Third Department Appellate Division, Case No. 513780.

note: The author of this weblog is a close friend of Bill and Cyndi Miner and, after over a decade on retirement status with the Bar, offered to serve as attorney for the Miners in their Appellate Division proceeding.

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update (May 30, 2012): Oral argument was held yesterday, May 29, at the 3rd Department Appellate Division at the Empire State Plaza in Albany.  It will be a month or more before the judges release their decision.  Stay tuned.

The Miners’ Appellants’ Brief makes the following major points, appealing the July 22, 2011 decision of Justice Barry D. Kramer of the Supreme Court in Schenectady County, which dismissed the lawsuit:

  • Laches. Judge Kramer should not have applied the doctrine of laches (that inexcusable delay bringing the lawsuit was unfair to Long Energy, although the Miners filed within the statute of limitations), because: (1) the Miners had delayed suing because they thought they had reached a compromise with Long that would prevent litigation (if Long would build a large berm in front of the tank, topped by evergreen trees, that would protect the tank from vehicle impact and provide a sound and visual buffer); (2) Long Energy had notice that the Miners were contemplating a lawsuit and therefore, under controlling court opinions, may not raise a laches defense; (3) the harm to Long if they were forced to stop operations at the site would not be “undue”, because Long took a calculated risk (knowing their tank was not a retail store) and because the tank can readily be removed and reused elsewhere.
  •  Exhaustion of Remedies.  The court below erroneously dismissed their claims after finding that before coming to court the Miners should have first appealed to Duanesburg’s Zoning Board of Appeals the “determination” of the Town’s Code Enforcement Officer, Dale Warner, in which he decided the application for the bulk propane facility fit into §11.2.3 of Duanesburg’s Zoning Ordinance, the “retail store” special use category).  By not going first to ZBA, the court concluded, the Miners “failed to exhaust their administrative remedies”.  The Miners claim they were not “aggrieved” by Mr. Warner merely referring the application to the Planning Board for action, and therefore were not required nor allowed to go to ZBA, and instead must appeal to the Supreme Court the grant of the special use permit, under New York State Town Law §274-b(9).  They also point out that Duanesburg’s zoning ordinance is unique, requiring the Planning Board to ensure that the proposed use is in compliance with all standards and requirements in the entire Ordinance before granting a special use permit.  That obligation distinguishes this case from those in which the courts have said a planning board may not interpret a zoning ordinance and decide a proposed use is not permitted.
  • Retail Store“:  On the merits, the Planning Board and the Supreme Court were wrong to conclude that a bulk propane facility was allowed in the C-1 zone under the retail store category. The plain, ordinary meaning of the words “retail store” must be applied by the Board, which instead decided to follow the interpretation of the Code Enforcement Officer that it was a permitted “retail establishment” because Long’s bobtail trucks took propane from the facility and delivered it to Long’s customers’ homes and businesses.  The Miners pointed out that the propane facility, which has no personnel, no buildings and no sales or public access on the premises, was neither a store nor a retail use of the parcel.

– notice the lush landscaping and sturdy “buffer” between the tank and the road –

  • Neighborhood Impact.  The Board was wrong to conclude simplistically there could be no adverse impact on the neighborhood because it was already zoned commercial, and therefore the Board did not adequately protect the character of the neighborhood and its property values.  One example: the Board did not fulfill its obligation to assure an adequate visual and noise buffer between the facility and nearby lands, when it allowed Long Energy to merely plant 4 deciduous trees across the 250′ frontage along Western Turnpike, with nothing else between the tank and the road, including no vehicle barriers such as bollards. See the discussion about The Neighborhood below.  Also, the Board allowed Long Energy to renege on its promise to put a perimeter fence and entry gate on the facility in order to control access.
  •  SEQRA: The Board failed to fulfill its obligation under the State’s Environmental Quality Review Act, because it did not take a “hard look” at potential significant harm to the public health and the character of the neighborhood — especially the failure to look at ways to lessen the likelihood and effects of a catastrophic explosion of the tank.

The Neighborhood:

     When Bill and Cyndi Miner bought their home in 1999, their parcel and all the lands across the street were zoned “Agricultural-Residential”.  In 2001, Duanesburg superimosed a C-1 Commercial zone 500-feet deep along both sides of Western Turnpike.  Patrick Barnes, the Planning Board Member who chaired the public hearing on Long’s special use permit and rushed through the unanimous vote a few minutes after the hearing ended, swore in his affidavit to the court that the neighborhood is already “predominantly commercial.”  In fact, there are mostly residences and agricultural or vacant lands in the immediate neighborhood of the propane tank and the Miners’ home, plus a church.

The Record that is going up to the appellate court doesn’t show the neighborhood in great detail: For example, it does not show that on the tank’s side of the road, heading west, there is a row of at least five single-family residences next to the vacant field that borders the propane facility, nor that heading east there is another row of single-family homes starting next to the equipment leasing firm that borders the propane storage facility.  The heavy equipment firm is, in fact, the only parcel with a commercial use (except for farmland) that is visible heading east along that side of the road for a mile or more.

Here is a map showing only the parcels that we know about from the Record that was before Justice Barry Kramer in the Article 78 proceeding, which the Miners are appealing.  [The only facts that can be argued to an appellate court are those in the Record from the proceedings below.] After the map, I’ve indicated each parcel and how it is used (with references to the Record on Appeal).  Clearly, I think, this is not a “predominantly commercial” neighborhood:

. . .

As you can see, there is a lot of land that is still covered in green, and lots of lots with homes that have been there from before there was a C-1 zone along Western Turnpike.  Also, the dark area in the top left-hand side of the map is a bog that straddles both sides of the road.   Although Duanesburg has no Heavy Industrial Zone, the Planning Board let a dangerous, looming, industrial facility be placed in this pleasant rural neighborhood.

– map submitted by Long of the same stretch of road . . . click on map to enlarge –

An applicant such as Long Energy is required under the Duanesburg Zoning Ordinance to provide the Planning Board with “a map showing the important existing natural and man-made features in and around the site” [§], and to submit “a sketch or map of the area which clearly shows the location of the site with respect to nearby . . . properties . . . and other pertinent features.” [§14.6.1, Sketch Plan review (b)] Nevertheless, the dismally low-resolution image above this paragraph is the better of the two images/maps of the area submitted to the Planning Board by Long Energy. It fails to indicate that any of the row of buildings to the west (left) of the tank, which you can see if your squint hard enough, are homes; in fact, each of them is a single-family residence.   The Board did not ask for a better map.

 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; Art is an expert in challenges to zoning actions.  In December 2011, I took over as the attorney of record for my good friends 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.

– the Miners’ antique shop in their barn near their home along Western Turnpike –

Above is the old barn that Bill and Cyndi restored for their weekend, seasonal antique shop.  It’s located west of their house, about 500 feet from the Long Energy propane tank.  Long and the Town have argued that because the antique shop is “commercial” and the tank facility is also “commercial” there won’t be any effect on the neighborhood having the propane tank located there. (Note as you look west toward the sunset that there are no other “commercial” entities in sight.)

p.s. Here are a few more facts that we wish were on the Record and could be taken into consideration by the appellate court:

  • There have been judicial decisions that mention that a town planning board or town board had informed a neighbor that the town’s zoning board of appeals is the correct place to bring a complaint that a proposed use was not permitted.  (For example, Swantz v. Planning Board if the Village of Cobleskill, 34 A.D.3d 1159; Cowger v. Mongin [ZBA of Niskayuna], 87 A.D.2d 932).  That did not happen here.  Instead, before the public hearing, Bill Miner was told by the planning office that the tank was clearly permitted and he could not stop it.  When Bill met with the Town Supervisor and the Town Code Enforcement Officer the day after the special use permit was granted for the propane facility, he was told by the Town Supervisor that the only thing he could do to stop the project was to go to court.   Moreover, she urged him instead to “reach out” to Mr. Long to try to reach a settlement, which Bill did.
  • Bill Miner not only offered to avoid a lawsuit if Long built a large berm to act as a visual and noise screen/buffer and barrier to protect against damage to the tank, Bill also offered to build the berm for Long, with the help of other neighbors with the equipment and know-how to do so.  And, Bill also offered to plant the row of evergreen trees on top of the berm for Long.
  •  Not only does the Department of State local government office indicate in its Guidelines for Applicants to the Zoning Board of Appeals that a neighbor is not “aggrieved” (negatively affected) until a Code Enforcement Officer actually issues a permit or certificate to the subject landowner, so do the BZA Guidelines for Applicants of the City of Schenectady, and the Zoning Board of Appeals primer of the Westchester County Planning Federation.  If not aggrieved, a neighbor is not required or allowed to go to the Town zoning board.
  • Duanesburg’s Comprehensive Plan  describes neighborhoods such as that of the Miners and the Propane facility in the following statement (at 45):
    • “Much of the Commercial District is currently vacant or in agricultural use providing ample acreage to accommodate business development. Certain areas are predominantly occupied by single family dwellings since they are a permitted use by special use permit. In areas of Commercial Districts dominated by single family dwellings, consideration should be given to rezoning the property to accurately reflect existing land use.”
  • Table 7.1 of the NFPA/NPA Fire Safety Manual, which was used by Long Energy to evaluate their bulk propane facility, shows — as one example — that the release of the inventory of transfer piping as small as  2″ x 30 ft. long at 80 GPM for ten minutes can result in an Explosion Hazard Distance of over 250 ft.  [The Miners’ home is less than 200 feet away.] Imagine what any significant rupture of the tank itself could do.  Long’s Fire Safety Analysis, upon which the Planning Board relied in saying there was no risk of explosion or fireball to neighboring properties, only dealt with brief releases from shorter lengths of 1″ and 2″-diameter piping and hoses. See Table 7.1 in Long’s FSA . [If interested, click here for the full 2011 edition of the NFPA/NPA Fire Safety Manual]

– Long indicated to the Planning Board that the tank would not be illuminated at night, but it is in fact brightly lighted every night, all night –

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