DUANESBURG Neighbor sues to halt installation of propane tank Town planning board approval challenged BY JUSTIN MASON Gazette Reporter Reach Gazette reporter Justin Mason at 395-3113 or jmason@dailygazette.net.
Bill Miner isn’t sure why the town allowed a 30,000-gallon propane tank to be located across the street from his house on Western Turnpike. Duanesburg’s Planning Board approved a special use permit for Long Oil Heat to use the property for retail or wholesale stores, but Miner said the company won’t have any sort of office by the tank and will only use it to fi ll its fl eet of trucks. Now he’s worried the big tank just 72 feet from the road will greatly reduce his property value. Even worse, he’s concerned a tank located so close to a major road will pose a serious threat if it’s ever struck by a vehicle careening off Western Turnpike. “Basically, a tank that size is going to blow up everything within four-tenths of a mile,” he said Friday. Miner and his wife, Cynthia, have filed a lawsuit against the company, the town of Duanesburg and former property owner Samuel Donadio, asking for an injunction to stop further work on the project. The Miners are also asking the court to set aside the planning board’s granting of a special use permit and the related finding that the project didn’t need a full review under the state Environmental Quality Review Act. Miner said he simply wants the town to uphold its own standards. He said questions raised during the board’s public hearing for the project in March weren’t answered before the vote was taken to approve the permit. “In a perfect world, I’d like to see the planning board actually enforce the regulations,” he said. Town Attorney Jeff Siegel did not return a call Friday. Miner was among fi ve residents who voiced concerns to the planning board in March, according to minutes from the meeting. Some worried about the smell of propane affecting their quality of life, while others voiced concern about the safety of the tank. ..............>>>>.................>>>>................http://www.dailygazette.net/De.....r01201&AppName=1
Propane tank ruling creates nightmare for Duanesburg couple BY DAVID GIACALONE For The Sunday Gazette http://tinyurl.com/propanetanked
Bill and Cyndi Miner got a skewed lesson in vocabulary and civics from the town of Duanesburg Planning Board this spring (Sunday Gazette, B2, June 12, 2011). They learned that “retail store” means an immense propane storage tank and VIEWPOINT that the covenant of trust created by a town with its residents through zoning means virtually nothing. The farce turned to tragedy on July 22, when a state Supreme Court judge decided to enable rather than enjoin Duanesburg’s errors. Last December, Long Energy Company approached the Duanesburg planning offi ce about a special use permit to construct a 30,000-gallon propane storage tank at 2321 Western Turnpike (Route 20), on a 1.9-acre parcel across from the Miners’ home. The property, which Long did not yet own, is zoned for “C-1 Commercial” activities. REASONS FOR REJECTION The Miners and their neighbors, including families, businesses and a church, should have expected Long’s proposal to be laughed out of town, for several reasons: A bulk propane storage tank does not fit into any of the 25 typical categories of commercial uses permitted in the C-1 district. The board has no power to issue a special use permit for a use not on that list. The “storage of . . . flammable or explosive materials” is specifi cally included in the definition of a Heavy Industrial Use in the town’s zoning ordinance. Duanesburg’s zoning laws and Comprehensive Plan have many provisions that ensure the board only grants a special use permit after determining it will not adversely affect the character, safety and property values of a neighborhood. Nonetheless, after consultation with the town planning office, Long applied for a permit to be issued under the C-1 category of “retail or wholesale stores or shops.” The proposal included no buildings, no personnel manning the facility and no accommodations for retail or wholesale customers. Long wanted to install a bulk propane storage tank, where trucks could fi ll up with propane for distribution to residential and business customers, and store individual tanks to be taken to customer locations for installation. Because the ordinance has no special definition for “retail” or “shop,” the plain everyday meaning of the words was supposed to guide and limit the board’s actions. Instead, the planning office and Planning Board winked at Long, and started using the slippery terminology “retail distribution facility.” At the March 17 public hearing, Bill Miner was told the facility was appropriate in the C-1 zone, because “the propane that comes out of here is sold at retail.” (Which, of course, makes a coal mine retail, too.)...................>>>>.......................................>>>>...................http://www.dailygazette.net/De.....r03101&AppName=1
Could they find a bigger tank? Are you kidding me?!
Instead of legal mumbo jumbo, how about the fact that an exposed potential bomb is not only against public safety, but without any enclosure (ummm... a covering structure) could wipe out 1/2 of the town. Let's think here: a car could hit it, a tree falls on it, kids vandalize it (it's quite the attractive nuisance)....
I have NEVER seen such a complete disregard for public safety. This town board would be held 100% responsible if anyone was ever hurt due to their poor decision making. They better have a darn good liability policy.
I never thought Duanesburg was that 'backwards' in regard to zoning and development. It appears that duanesburgians better keep on top of all new developments in their town. I can't believe that the town attorney would allow such a 'law suit waiting to happen' propane tank of this magnitude.
I know the folks in duanesburg are hungry for development to offset the high taxes........but I don't think this is what they had in mind. Nor does it appear to be 'smart developing'. imho
When the INSANE are running the ASYLUM In individuals, insanity is rare; but in groups, parties, nations and epochs, it is the rule. -- Friedrich Nietzsche
“How fortunate for those in power that people never think.” Adolph Hitler
I think its a little too close to the road regardless if there were houses around. Anything can hit it. It also should be housed inside a building of sorts to contain and protect it. Id be scared to live there or anywhere near it.
Thanks for covering this issue and giving the Miners your moral support. The more you get into the facts, the more outlandish the treatment of the Miners by the board and at court seems. The documents linked at http://tinyurl.com/propanetanked and the analysis at the bottom of that webposting fill out the picture. I've added more photos. Feel free to use any of the materials for any noncommercial -- but no heavy industrial -- purposes.
I wonder if there are any local governments in New York that don't have this kind of contempt for the residents? How do they think this presents Duanesburg to any potential new arrivals?
It is development like this that lowers the values of homes. I hope these folks get a tax reduction since their homes are not worth what they were a year ago. This irresponsible development appears to be spreading like a cancer throughout schenectady county with little if any regard for the residents!! Shameful
When the INSANE are running the ASYLUM In individuals, insanity is rare; but in groups, parties, nations and epochs, it is the rule. -- Friedrich Nietzsche
“How fortunate for those in power that people never think.” Adolph Hitler
Duanesburg couple: Judge erred on propane tank ruling Monday, October 3, 2011 By Justin Mason (Contact) Gazette Reporter
DUANESBURG — Cyndi and Bill Miner are launching a volley of new challenges to Duanesburg’s approval of a massive 30,000-gallon propane distribution tank near their home after a county Supreme Court judge dismissed their case last month. The couple filed a notice of appeal with the state Supreme Court’s Appellate Division this week, claiming Judge Barry Kramer erred when he dismissed the case in July. The Miners continue to maintain the town Planning Board wrongly approved plans for Long Energy’s facility, despite it not being in compliance with the retail zoning along Western Turnpike. Art Giacalone, the attorney arguing the case for the Miners, said the tank represents a heavy industrial use, which isn’t permitted in the town under its zoning laws. He said the site lacks all the amenities one would typically find at a retail location, such as an attendant or parking. “I’ve never seen any municipality distort the meaning of zoning law like what happened in Duanesburg,” he said. “It’s clear this propane facility does not belong in that spot.” Simultaneously, the Miners are challenging Duanesburg Code Enforcer Dale Warner’s issuance of a certificate of occupancy for the tank in July. They are scheduled to bring the matter before the town’s Zoning Board of Appeals in mid-October. Giacalone plans to argue the tank doesn’t comply with state Uniform Code for Fire Prevention and Building Code by not building a perimeter fence around the facility or installing barriers in front of the tank to prevent an errant vehicle from veering into it from Western Turnpike. Moreover, he said the company began using the tank weeks before receiving its certificate of occupancy. “Long energy was already using the facility for weeks even though they didn’t have their certificate,” he said. Giacalone is also contacting the Department of State’s Division of Code Enforcement and Administration to request a probe into the town’s handling of the project. He’s hoping the state will also lend an interpretation of the fire safety code.........................>>>>.......................>>>>.......................http://www.dailygazette.net/De.....r01002&AppName=1
“I’ve never seen any municipality distort the meaning of zoning law like what happened in Duanesburg,” he said. “It’s clear this propane facility does not belong in that spot.”
apparently they haven't heard about Rotterdam.......
...you are a product of your environment, your environment is a product of your priorities, your priorities are a product of you......
The replacement of morality and conscience with law produces a deadly paradox.
STOP BEING GOOD DEMOCRATS---STOP BEING GOOD REPUBLICANS--START BEING GOOD AMERICANS
“I’ve never seen any municipality distort the meaning of zoning law like what happened in Duanesburg,” he said. “It’s clear this propane facility does not belong in that spot.”
apparently they haven't heard about Rotterdam.......
DUANESBURG Court: Couple waited too long to sue over tank BY JUSTIN MASON Gazette Reporter
Long Energy had already spent more than $200,000 to build a 30,000-gallon propane tank on Western Turnpike before neighbors Bill and Cyndi Miner fi led a lawsuit challenging the development three months after it was approved, an appeals court ruled. Justices for the Appellate Division of state Supreme Court found the couple failed to preserve their legal right to sue because they waited until the project was nearly complete. The court acknowledged the Miners tried to negotiate a solution with Long Energy, but ultimately found they waited too long to pose a legal challenge to the special use permit issued by the Duanesburg Planning Board. “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,” Justice Bernard Malone Jr. wrote in the four-page ruling issued Thursday. Dave Giacalone, an attorney for the Miners, said the couple hasn’t decided whether to bring the case to the Court of Appeals, the state’s highest court. “We believe it is unfair to the Miners, and all those who live, work and worship near that tank, to dismiss their petition without getting to the merits,” he said. Long Energy attorney Robert Ganz said there is no indication Long Energy has done anything wrong, despite complaints lodged by the Miners. “We do not believe there’s any risk of harm due to that propane tank,” he said. Duanesburg Town Attorney Jeffrey Seigel said he hopes the ruling will at last put an end to the issue. “We hope the litigation has ended with this final decision,” he said. The Miners filed a lawsuit against the company, the town of Duanesburg and former property owner Samuel Donadio, asking for an injunction to stop further work on the project in July 2011. They contended the tank located just 72 feet from a busy thoroughfare posed a serious threat if it was struck by an errant vehicle. Giacalone argues the town erred when it approved a special use permit for the project, since the massive propane tank doesn’t appear to be a retail business as it was described in the application. ..............................>>>>......................>>>>.............http://www.dailygazette.net/De.....r01501&AppName=1
appellate court says the giant propane tank can stay by: David Giacalone | August 23, 2012
The Third Department appellate division issued its decision today 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. The decision states that “The entire petition is properly dismissed based on the doctrine of laches, which respondents pleaded and proved.” The 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 at “retail store” when there are no personnel, no buildings, and no sales or customers on the premises.
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, 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.
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 the 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 a legal opinion. •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. •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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