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:
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.
– 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.
- 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:
. 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.
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