Below is the text of two email messages, plus attached photos, that the weblog’s editor, David Giacalone, sent to the Stockade neighborhood's email list about the Duanesburg propane tank controversy. The first one was sent the day before the July 22, 2011 court date and explains many of the issues. The second one was sent on Sunday July 24, and is a description and analysis of what the Judge did and said at Supreme Court on Friday, July 22, at the Art. 78 proceeding. For more photos and links to important documents go to www.tinyurl.com/propanetanked

-------- Original Message --------Subject: kaboom: a cautionary zoning tale out of DuanesburgDate: Thu, 21 Jul 2011To: HistoricStockade@yahoogroups.com

Dear Neighbors,

    No matter how or how much we might disagree about what should or shouldn't be allowed to happen in the Stockade, we can all be happy we do not have to live with the vagaries of zoning rules and their application In Duanesburg.  The present travails of former Stockadians Bill and Cyndi Miner [who lived at 212 Union St. before Rev. White and then the Ackermans] make our problems look bite-sized.  It is a cautionary tale about the need to be vigilant in monitoring those with the power to make, interpret or enforce our zoning laws. See the attached photo for a glimpse of what the Miners have as a new neighbor, and are trying to have removed in a lawsuit that will have its first court proceeding tomorrow, Friday, at 9:30, before Judge Kramer in Supreme Court.

Here's the story:

    Bill and Cyndi have lived in an antebellum farmhouse on Western Turnpike (Rt. 20) since 1998.  In 2001, the Town rezoned a 500' strip of land on both sides of the entire length of Western Turnpike  C-1 Commercial.  Theirs and the nearby property had been zoned Agricultural-Residential.  In general, the Miners prefer to have farmland and residences around them.  Nonetheless they were somewhat reassured by the local Zoning Ordinance and Comprehensive Plan, because whatever might end up across the street from them would have to fall into one of 25 broad categories of typical Commercial uses listed in the Ordinance (e.g., banks, bars, bowling alleys, barber shops, churches, clubs, cafes, etc.) and the Planning or Zoning Board would have to conclude it was compatible with existing neighbors, whose safety and property values were determined to be adequately safeguarded.

    Despite such limitations, Long Energy Co. applied in February to put a 30,000 gallon propane tank across the street, less than 200 feet from their living room.  Long explained there would be no activity other than propane storage, with distribution from there by their "bobtail" trucks to homes, farms and businesses. The proposal included

no buildings, no personnel manning the facility, and no accommodations of any sort for customers at that location.  Despite those facts, the Planning Office staff determined Long could apply for the special use permit under the category of "retail or wholesale stores or shops" -- and the Planning Board agreed.   Ignoring the normal meaning of retail and shop, etc., the Board explained that it was an appropriate "retail facility" because the propane would be used by retail customers. (That would make an oil well "retail".)  The Board also overlooked the fact that the bulk storage of flammable or explosive materials comes explicitly within the definition of Heavy Industrial Use in its Zoning Ordinance.

    To make things worse, Bill and Cyndi have planned for years to sell the front acreage of their property, with the house and barn and swimming pond, and build an empty-nester home on a ridge further back on their land.  The Town let them subdivide to make that possible.  They had their home for sale in this tough market before there was any hint of a bulk propane facility across across a narrow two-lane country road.  You can imagine the impact on potential buyers to have that scary site looming (and possibly kabooming) so close to what is otherwise a lovely paradise. (click to see their realtor's webpage for the property)

    The tank was installed in April and is already operating.  Bill and Cyndi have filed an Article 78 challenge to the decision in our  Supreme Court.  That case will be heard this Friday, July 22, at 9:30, by Hon. Barry D. Kramer.  The Miners have been best friends since I moved in next to them on Union St. in 1989.  They tried to handle the case pro se but decided a few weeks ago to hire my brother Arthur (from western NY), who specializes in representing homeowners fighting City Hall in zoning cases.

    Zoning laws and comprehensive plans, and the promise they purport to make to homeowners concerned about the financial and emotional investment, are meaningless if you can call a bulk propane tank a retail shop and place it close to homes and only 75' from a busy road (with no perimeter fencing and no barricades in front of it to stop vehicles from accidentally or intentionally hitting the tank and incinerating nearby homes).   By the way, the Department of Homeland Security classifies propane as a Chemical of Interest that must be registered under their Chemical Facility Anti-Terrorist Standards, when as little as 15,000 gallons are stored at a location.  Those regulations and the security measures recommended by DHS were never mentioned in the Duanesburg proceedings and none of the suggested safety precautions have been installed at the Duanesburg facility.

    You can see more photos showing what it is like to have that tank nearby in my weblog posting "Duanesburg needs a dictionary."  You can read the Petition filed by the Miners, which has more facts and legal arguments, by going here http://tinyurl.com/MinerNoticePetn .

    I hope the court will teach Duanesburg a vocabulary lesson and a civics lesson.  The story should motivate all of us who trust in Schenectady's zoning laws, including the Historic District zoning.

-------- Original Message -------- Subject: tanked in Duanesburg - Judge Kramer lets the tank stayDate: Sun, 24 Jul 2011To: HistoricStockade@yahoogroups.com

This is a follow-up to my email on Thursday morning, "kaboom: a cautionary zoning tale in Duanesburg."

On Friday, July 22, Judge Barry Kramer rejected the arguments made by Bill and Cyndi Miner against location of the Long Energy Co's. 30,000 gallon propane storage tank 200' from their home on Western Turnpike in Duanesburg.  The judge said the Miners should have acted much sooner, and it would be unfair to order the tank to be removed.  On the merits, he said it was not arbitrary and capricious for the Planning Board to approve a propane tank in the C-1 Commercial district under the "retail store" category.

    Here, for those who might be interested, is a detailed explanation with my analysis and comments.

    Although the short (30-day) statute of limitations had not expired when Bill and Cyndi filed their lawsuit, Judge Kramer agreed with the arguments by the Town and Long that the court should apply the equitable doctrine of "laches" to reject the Petitioners' claims.  As defined in Webster's Law Dictionary, laches is "A legal doctrine that bars a claimant from receiving relief where the claimant's delay in pursuing the claim has operated to the prejudice of the opposing party."  

    The Judge also said the Miners had not "exhausted their administrative remedies" before going to court, insisting they should have appealed to the Town's zoning board of appeals as soon as the Town's code enforcement officer had concluded that Long's proposed use was permitted in the C-1 district and that Long could file an application with the Planning Board for a special use permit under the retail shop category of use.  The Miners had instead waited until the Planning Board issued the Special Use Permit on March 17 to appeal to the Supreme Court in the Art. 78 proceeding.

• Comment: Even if Bill had somehow known that the CE Officer had made that internal and unpublicized decision on February 8th, it is not at all clear from my research that the zoning board would have considered that Bill was an "aggrieved person" who had the right to appeal to it at that time; Long had not been given permission to do anything but make an application.  Also, Bill would have had 60 days (until early April) to appeal the February 8 determination to the zoning board.  The Planning Board rushed and make its decision on March 17 to grant the special use permit.  I believe this same Judge would very likely have told Bill that he sought relief too soon, if he had

tried an appeal to the zoning board in February or March and had been rebuffed by them and then went to court.

    Before Bill Miner 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 planning office that the tank was absolutely allowed at the location and he could not prevent it.  Feeling helpless to stop the tank, and hoping to reduce his losses and have more control over where the tank was placed in relation to their home and over whether visual barriers were constructed, Bill left one hasty phone message at Bob Long's office, suggesting that Long might buy one of 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 dropped by Bill.  Nonetheless, the court used that 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 investigated 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.  

• Comment: When applying for a special use permit, the Applicant must state what section of the list of permitted uses in the Ordiance is being invoked.  So, some familiarity with that list -- or at least with the section chosen by the Applicant -- should indeed be presumed by the Board and the court.

   The Judge also said a couple times that instead of bringing a lawsuit in March, April or May, Bill simply watched the tank going up and was out there taking pictures of the tank.  In fact, the first pictures were taken on May 25, the day before the lawsuit was filed (two by Bill's daughter at my suggestion and the rest by me), for use in the lawsuit.  More important, the day after the Board's grant of the permit, Bill Miner went to the Town Supervisor asking if she knew about the decision and was going to defend it if there were a lawsuit.  She seemed to be perplexed as to how a propane tank was a retail store, but she suggested that Bill reach out to try to work out some compromise with Bob Long, rather than start a lawsuit.  Bill did just that and he thought he had a gentlemen's agreement with Mr. Long that the Miners would not sue if Long put a large berm in front of the tank with lots of evergreens to block the tank and make a visual buffer.   To reduce Long's expenses, Bill also offered to construct the berm and plant the trees with help of other neighbors.   It wasn't until the final grading of the property, when Bill noticed that a large amount of dirt was being taken off of a modest berm in front of the tank that Bill realized he was wrong about Long making a commitment.

    The Miners brought their complicated lawsuit pro se as quickly as they could after seeing the facility would have only 4 skimpy deciduous trees across its 250' frontage and no protective berm.  They filed their Petition on May 26, asking for a preliminary injunction to stop further work at the site. The Town was served with notice of the lawsuit the very first day after a judge was assigned and a court date set, and the other respondents were served by June 2.  The Miners had expected the court to rule on their request that Long be enjoined from further preparing the site pending the outcome of the case on July 8th, the earliest return date they could choose from the Judge's calendar.  On June 24, however, the Town created a delay by asking the Court to postpone the hearing until July 22, saying the parties were working on a settlement.  The Miners then hired zoning lawyer Arthur Giacalone, my brother, to help them.  The Miners opposed the adjournment, and said that at a minimum the court should rule on the temporary injunction on July 8.   Judge Kramer ignored that request and granted the adjournment in a letter that erroneously said it was the Miners who had asked for the adjournment.          The Town and Long told the court they were trying to settle the matter, and Bill Miner had told them that he would meet at any day or time to try to see if there was a chance to settle. Nevertheless, neither the Town's lawyer nor Long's lawyer ever contacted Bill Miner or his lawyer to set up a settlement meeting or phone conference.  Instead, Long had the giant tank filled and quickly finished the needed construction during those extra weeks.  In fact, on June 30, Bill Miner saw a Long Energy bobtail truck filling up at the storage tank, before making its rounds to customers.  That was before the Town had issued a Certificate of Occupancy allowing Long to start operating at the facility.  The Certificate was issued early on July 5, the morning after the Miners' lawyer brought up to respondents' lawyers the fueling of the bobtail, in an email, and asked the Town's lawyer to investigate whether such a Certificate of Occupancy had yet been issued.  

    Despite those facts, Long came to court on July 22 complaining the Miners had waited so long to file their suit that Long had already completed 98% of the installation.  Judge Kramer agreed with them that it was just too darn late and very unfair to ask the court to put an end to the facility.  The Judge saw no bad faith or conspiratorial winking in the fact that Long and the Town clearly knew from the start that the storage facility did not fit into any C-1 category and certainly was not a "retail shop".  From the court's perspective, it seems, it was the Miners and not Long Energy and the Town that had acted in bad faith.

    Rejecting controlling judicial decisions saying the Planning Board and the court had to apply the "plain meaning" of the words "retail" and "shop," the Judge stated it was not "arbitrary and capricious" for the Planning Board to conclude that the propane tank could fit into the category of "retail store or shop" and therefore be placed in the C-1 commercial district.  It did not matter that Long had admitted there was to be no retail activity at the site, but only the transferring of propane to Long's bobtail trucks for delivery to customers. The judge never mentioned that the Zoning Ordinance itself calls storage of flammable or explosive materials a Heavy Industrial Use, not a commercial use. 

• Comment:  If Judge Kramer had listened to the audio transcript from February's board meeting, he would have heard chuckling at the Planning Board table after a board member was told there would only be storage and transfer activities at the site, but "I tried to call it retail distribution."

    Prompted by the Town's lawyer, Judge Kramer pointed to another propane company with two tanks 8 miles down Rt. 20 near Esperance as proof propane storage tanks were allowed in Duanesburg's commercial zone.  He ignored the fact -- and was never told by the Town -- that the company opened for business at that location in 1983, before Duanesburg even had a zoning ordinance. 

• Comment: The Esperance propane company, which has no homes nearby, has its tanks placed about twice as far from the road as Long, and a protective 6' fence around its facility to keep out intruders, plus many more barriers to stop collision by vehicles coming in from the road than at Long's facility.  Rather than being unmanned, like Long's facility, it also has its office and personnel on site to monitor the area.  Of course, the fact that the Board might have let someone else violate the zoning ordinance years ago should not stop the Miners now from stopping an unlawful special use permit that threatens their home and neighborhood.

    The Judge also concluded that the Board had done the required "hard look" SEQR (environmental) review.  In my opinion, after reading the Board's file and hearing recordings of their meetings, the Board simply accepted Long's environmental assessment with no analysis or probing questions.  It used the circular argument there would be no environmental impact because the area was already zoned for commercial use.  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, or 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. 

    The court's decision on Friday was very disappointing.  However, after watching zoning and SEQR (environmental review) cases for many years, I am not surprised at the court's great willingness to acquiesce to the Board's decision and to accept even weak and misleading arguments by the respondents.  The Town of Duanesburg broke its zoning covenant of trust with Bill and Cyndi Miner and their neighbors, and the court blessed that breach of trust.

    My whimsical but sad version of Bill Miner with a House for Sale sign superimposed on the tank is attached.  

- the Long Energy propane tank seen from the Minersʼ mailbox at the edge of their front lawn and driveway -

- Bill Miner standing in front of the Long Energy Duanesburg Propane Facility, with a House for Sale sign superimposed on the bulk storage tank -

- the Minersʼ home seen from alongside the Tank, less than 200ʼ away -