An article in today’s Schenectady Gazette discusses the issues raised by National Grid’s aggressive trimming of trees in the Stockade and Union Triangle neighborhoods the past two weeks. See “Residents upset after trees trimmed,” by Kathleen Moore, B3, January 18, 2013, online by subscription).  This is, of course, not a new issue, and Stockade residents have complained about the ugly over-amputation of tree limbs and topping of trees, and the resulting loss of shade and beauty, for many years.  The “trimming” is done, of course, in an attempt to prevent power outages and other damage from falling limbs.

In the Gazette piece, National Grid forester Michael Freed is quoted saying he could not cut back trees any less, and that they often trim less than the company’s guidelines, which are to cut back 10 feet away from the primary wire and 18 inches from secondary wires.  They often leave behind lopsided trees, and National Grid spokesman Patrick Stella suggests that homeowners could request that their trees be “rounded out” after safety cuts are made.  Gillespie St. resident Jackie Craven complained about the over-cutting of flowering pear trees on her street.  ReTree Schenectady, which planted those trees, now attempts to put shorter trees under power lines.

Earlier this week, I wrote to the Stockade neighborhood Yahoo email list, complaining about the over-trimming that occurred again last week, when a Lewis Tree Service crew came through the Stockade on behalf of National Grid.  As an example, I gave the treatment of a healthy tree in front of 101 Front St., behind the statue of Lawrence the Indian; see the image at the head of this posting.  The following collage was attached to my email message, comparing that tree on the day when Lawrence was removed for cleaning last May with its current sad state (L):

– 101 Front St. –  comparison before and after trimming –

– click on an image for a larger version –

The damage from the amputations will be even more apparent when the leaves return this Spring.  Imagine, for example, the view behind Lawrence with all the leaves above his biceps gone.

I understand that trimming is required for safety reasons, but our trees are too valuable to be treated with so little care.  The City of Schenectady needs to let National Grid know that the company must be far more discerning when trimming our trees.  Unfortunately, the City does not seem to appreciate the importance of trees to our cityscape and ecology.  You may recall, for instance, that this weblog — which was originally named “Preserve Our Stockade Trees” — was created in April 2010 to fight the City’s plan to cut down all the mature trees on Washington Avenue when it repaved the road and replaced sidewalks.  See our first posting.  When we protested that foolish plan, the City purportedly decided to punish the Stockade by not repaving. [follow-up (May 19, 2014): more than four years later, there has been no repaving.]

– 101 Front St.: autumn colors during the 2010 Stockade-athon –

One possible solution to this problem is contained in a bill proposed again this year in the New York Assembly by District 92 Assemblyman, Thomas J. Abinanti. Assembly Bill A02300 would add an Article 3 to the NYS Public Service Code in order to regulate the cutting, topping and removal of trees upon rights of way by providers of electric service, setting up a commission that would make and enforce regulations meant to assure that tree maintenance is done in a manner that has a less destructive impact on our trees.

In addition to requiring that a State arborist certify the need for trimming or removal of a tree, and requiring notice to a municipality and homeowners, the Bill states that:

• “An electric corporation or municipality may prune a tree within a right of way only when an arborist,  designated  by  the  department  of agriculture  and  markets,  certifies  that  the  part of the tree to be pruned is dead, diseased, a broken branch, resting against a service  or distribution  line,  or  poses or could reasonably be expected to pose a danger to a service or distribution line.
• “No electric  corporation  or  municipality  shall  engage  in  the topping  of  a  tree in a right of way so as to remove more than twenty-five percent of the foliage within an annual growing season.”
• An electric corporation or municipality may  remove  a tree  from  a  right  of  way  only  when [a designated arborist] . . . certifies that  the  tree  to  be removed  is  dead,  diseased, broken, that its branches are so entangled with a service or distribution line that pruning  cannot  be  reasonably expected  to  prevent interference with such line, its trunk is touching such a line, or otherwise poses a danger to a  service  or  distribution line if not removed.”

Mr. Abinanti needs co-sponsors and public support to move his Bill through the Assembly.  Please let your Assemblyman know that you support the goals and requirements of Bill A02300.  You can reach 110th Assembly District representative Phil Steck, by clicking here.

– use the short URL http://tinyurl.com/OverTrim to share this posting.

  update (November 29, 2012):  Today, the New York State Court of Appeals, the highest court in the State, denied the Miners’ motion for “leave to appeal” the decision of the Appellate Division. (Motion No. 2012-1042) The Court states at its website that denial of leave to appeal should not be construed as an opinion on the merits of the case. There are no further steps that Bill and Cyndi Miner can take, and the lawsuit is over.

  The Third Department appellate division issued its decision today (Aug. 23, 2012) affirming the lower court’s dismissal of Bill and Cyndi Miner’s lawsuit, which challenged the placement of Long Energy’s 30,000-gallon propane storage tank less than 200 feet from their living room in Duanesburg under the category of a “retail store”.  The decision states that “The entire petition is properly dismissed based on the doctrine of laches, which respondents pleaded and proved.”  Basically, the court said that because the Miners waited until the facility was almost completed to bring their lawsuit, it would be unfair to Long Energy to let them challenge the issuance of the special use permit.

The Appellate Court did not say that it was proper to put a propane storage facility at that location, but merely said the Miners filed too late, even though they filed within the statute of limitations.  No issues were dealt with “on the merits,” so the Court did not decide whether a bulk storage facility can be considered a “retail store” when there are no personnel, no buildings, and no sales or customers on the premises, nor whether the danger from putting a high-hazard facility so close to homes (and a church and a welding operation) was adequately considered by the Planning Board .

 Click for the Appellate Division’s decision in Miner v. Town of Duanesburg Planning Board (NYS Supreme Court 3rd Department App. Div., Case No. 513780, 2012 NY Slip Op 06043, August 23, 2012).  Our arguments against the tank can be found in our posting “Duanesburg needs a dictionary” and in our subsequent discussion of the appeal.  Also, read the Statement of Facts from the Miners’ Appellate Brief.

    LACHES: The doctrine of laches is based on equitable principles and states that a court may refuse to hear a complaint, even when as here the petitioners filed within the statute of limitations, if the relief they request would cause undue hardship to the respondents because of an inexcusable delay in bringing the lawsuit.  Here, the Third Department notes that the Miners were at the public hearing in March 2011 but did not file until June 2011 (they actually filed May 26, 2011).  The Appellate Division concluded:

“Thus, although petitioners’ effort to resolve their concerns through negotiations directly with Long Energy is commendable, their failure to pursue any legal remedy while construction of the facility proceeded to near completion right before their eyes must result in dismissal of this proceeding.”

Naturally, Bill and Cyndi Miner, and I as their good friend and appellate lawyer, are disappointed in the 3rd Department’s decision, and respectfully disagree.  Laches is about equities — fairness and justice — and we believe there were/are many reasons why it was unfair to deny the Miners a chance to show that it was unlawful for Duanesburg to allow a giant propane storage tank at that location.  The result is placement of a high-hazard industrial use in a restricted commercial zone and a neighborhood populated by single-family homes and small farms.  Here are a few of the facts and issues the appellate court never mentions that show the Miners had sufficient equities on their side to allow them to be heard:

•  the Miners did not bring the lawsuit solely for their own sake; a giant tank situated near a road with open access by people and vehicles creates a serious safety hazard for all who live, work, or worship near there
•  the Planning Board granted the special use permit under the category of “retail shop or store,” although — as the Court states — “Long Energy sought to construct a propane storage facility featuring a 30,000 gallon tank.” Not only is a storage tank not a store, the Town’s Zoning Ordinance specifically defines the storage of explosive materials as a heavy industrial use, and the Town has no heavy industrial zoning. The Town’s Zoning Enforcement Officer himself issued the facility an occupancy certificate as a High-Hazard use.
• allowing a dangerous use that is so inappropriate for this zone and neighborhood undermines the entire Town’s faith in the Zoning Covenant  — the promise that zoning restrictions will be enforced and their lives and property protected

•   Long took a calculated risk that it could avoid a legal challenge to the permit despite not operating a store on the premises; not supplying any form of visual or audio buffer; installing no restrictions on access, and no protection in front of the tank from accidental or intentional vehicle collision
• the Miners were interested in far more than what the Court called their “viewshed”.  They delayed their lawsuit thinking Long had agreed to construct a large berm in front of the tank that was tall enough (and topped with sufficient evergreen trees) that it would be a visual and sound buffer, protect the tank from vehicle damage, and help protect the neighbors from an explosion.
• Long knew that the Miners had strongly opposed the tank at the public hearing, saying it was not a store, and dangerous, and thus not an allowed use.  Long therefore did not prove an important element of laches, because it could not show that it had no prior knowledge that the Miners might sue to stop their project.

• This is not a case where a significant building would have to be destroyed if neighbors who had seen the ongoing construction won their lawsuit.  There was no building, merely a storage tank that could readily be moved on a flatbed truck to an appropriate location.  That greatly reduces any hardship, which the respondents brought on themselves, if the Miners won.
• If there were any factual disputes about fairness and equities and hardships, the Supreme Court was required to give the benefit of the doubt to petitioners, or else to hold a fact-finding hearing on important questions.  The appellate division could have allowed a better balancing of equities by remanding the case to the Supreme Court for a quick trial.

  The Miners are considering whether they will ask the Court of Appeals (the highest court in the State) for leave to appeal the appellate court’s decision.  They have 30 days after being served with the decision to do so.

Finally, here are a few musings about the aftermath of this case:

• Members of the Duanesburg Planning Board (including Ms. Novak and Mr. Wiederman) specifically noted that this was not a store or that no retail sales would be going on at the property — it is just bulk storage for distribution by Company trucks to customers.  But, no Board member was responsible or courageous enough to try to block this project.  A reversal might have been an important reminder of their duties, and a motivation to ask the Board’s counsel for an objective legal opinion.
• State law specifically allows “an officer, department, board or Bureau of the town” to appeal any decision of the code enforcement officer to the Zoning Board of Appeal.  [Town Law.Sec. 267-a(4)] That means that the Town Supervisor, the Planning Board or its members, or even the Town Counsel could have asked the Zoning Board of Appeal to interpret whether a propane storage tank could be allowed under the “retail store” category in the C-1 district, and whether it was a banned heavy industrial use.  They could have gone to the ZBA as soon as the CEO Dale Warner made his decision in February 2011 that the tank was an appropriate special use, or gone after the permit was granted. No one did so.  Indeed, when Bill Miner went to the Town Supervisor right after the permit was granted and asked if she could do anything to stop the permit, she told him there was nothing she could do and the only thing Bill could do was to bring a lawsuit or try to reach a settlement with Mr. Long.
• Allowing this permit to stand sets a very bad example for the Planning Board and Enforcement Officer.  For example, I hope that Town officials do not conclude they can ignore the plain meaning of everyday words such as “retail store”. What will they decide is a place of worship or an office building, if they can ignore a word as explicit and ordinary as “store”? 

• The Duanesburg zoning ordinance allows “retail stores” in its quaint Hamlet District, with only a 40-foot setback.  I hope that doesn’t give other propane companies any ideas for placing their tanks.
• An actual retail store would have been acceptable and probably desired by the neighbors.  A store tries to offer needed or desired products or services, creates jobs in the Town, and attracts people to the neighborhood and Duanesburg.  This propane facility does none of those things.
  
  Besides putting people at risk, the Town has spent over $38,000 defending a permit that on the very face of the Ordinance should never have been granted.   Despite this “victory,” I hope some important lessons were learned that might somehow avoid similar conduct in the future and help justify that expenditure.  Public-minded tax-payers like Bill and Cyndi Miner should not have to rush to court and suffer the aggravation and expense of an Article 78 lawsuit in order to undo the work of appointed or elected scofflaws and protect their peace of mind and property values.   Of course, this case again underscores the need for constant vigilance — and a litigious spirit — on the part of the public.
  

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update (Aug. 23, 2012): The Third Department affirmed the lower court’s decision.  See our posting today.

– 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.

–  Share this post with the short URL: http://tinyurl.com/tankappeal

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” [§14.6.2.2], 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 –

 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.

• Click here for the Statement of Facts from the Miners’ Brief.

  . .  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 –

.

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.

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– 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.

 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.

• Town of Duanesburg Zoning Ordinance 2009 and its Comprehensive Plan 2006
• the most relevant Zoning Ordinance excerpts and Comprehensive Plan excerpts

• Sunday Gazette Viewpoint OpEd column, “Propane tank ruling creates nightmare for Duanesburg couple” (July 31, 2011, by David Giacalone), with summary of issues.
• video segment from WRGB Channel 6 News, “Duanesburg Doomsday Scenario” with Randy Simons (August 2, 2011)

• 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:

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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.

 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.

  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: Continue reading →