2015-12-18 / Front Page

Questions remain after table

By Wm. Duke Harrington
Staff Writer

SOUTH PORTLAND — After nearly three hours of debate at a Dec. 9 workshop, the City Council abruptly killed a moratorium that would have put the brakes on a propane storage and distribution complex.

The vote to do so appeared to stem from a mishandling of parliamentary procedure by those opposed to the project. One of those opponents, Councilor Eben Rose, said in a Dec. 15 email he has asked for reconsideration of the 4-3 decision. That question will be on the agenda for the council’s Dec. 21 meeting.

“It was indeed a confusing exchange late in the evening,” Rose said in an email the next day. Rose, who was attending his first meeting as a city councilor Dec. 9, went on to say, “I admit to being personally confused as to the duration of the session over which ‘indefinitely’ pertains. The Council is never in recess, so it is not obvious when a session begins and ends.”

In his Dec. 15 email, Rose also blamed some of the confusion at the Dec. 9 meeting on being ill at the time. Unable to hear well at the time, he had spent the session plugged into a set of headphones, listening to his fellow councilors via amplification.

“I have heard from my constituents and all want me to reconsider and to approve the moratorium,” Rose said. “It is on the agenda for the 21st of December. Should be more speeches and drama on that day. Hopefully, this time [I’ll be] not sick and with fully restored hearing. I’ll consequently be less confused this time.”

Council rules allow for a reconsideration request only at the next regular meeting following a vote. Otherwise, the topic of that vote cannot be placed back on a council agenda for one year.

What’s at stake

Oklahoma-based NGL Supply Terminal Co. has plans to lease nearly 10 acres from Pan Am Railways at Rigby Yard, located off Route 1, where it intends to build a 24,000-gallon liquid propane storage tank. Denied additional tanks by city code, NGL will instead utilize up to 16 30,000-gallon rail cars, for up to 504,000 gallons of storage on site.

That has given cause for alarm to some city residents, including Councilor Brad Fox, who has spent much of the past 10 months campaigning against the facility. But the first to raise a red flag was Rose. In February, he raised a ruckus in the local media when it appeared the city planning office was prepared to allow multiple storage tanks, using an alternate reading of the relevant codes.

Rose successfully lobbied for a second opinion and the city eventually hired an outside engineer, whose interpretation of city code forced NGL to truncate the size of its project by more than two-thirds. Rose subsequently ran for the District 3 seat on the city council, beating local businessman Ernie Stanhope Jr. in November.

Based on comments from each councilor, both on Dec. 9 and from a Nov. 9 workshop, it appeared votes were lined up 4-3 in favor of passing the moratorium. That would have sent the measure to the planning board for review. However, the moratorium would likely have died upon its return to the council for a final reading, because South Portland’s city charter requires a supermajority of five yes votes to adopt any zoning amendment.

With the hour getting late, Fox made what appeared to be a surprise move to his fellow councilors, motioning to postpone the moratorium vote “indefinitely.” Rose seconded the motion, saying, as did Fox, that more time was required to assess the need for the moratorium.

Councilor Linda Cohen balked at that notion, observing that buying time is exactly what a moratorium is designed to do. She also pointed out that a motion to table an item indefinitely, rather than to a specific date, effectively kills that agenda item.

Rose challenged that idea, arguing the point with City Clerk Emily Carrington and City Attorney Sally Daggett, both of whom backed Cohen’s interpretation. Fox then asked to rescind his motion, but Mayor Tom Blake said Rose first needed to take back his second. Although Blake appeared to wait for him to do so, Rose made no such move. Instead, he voted with Cohen, and Councilors Maxine Beecher and Claude Morgan, to table the moratorium.

Councilor Patti Smith and Mayor Blake, both of whom supported the moratorium, voted against tabling. Fox also voted against his own motion.

“I made a procedural mistake and Eben, who had pneumonia, doubled down on it,” Fox said in a Dec. 16 email. “But no worry, we’re brining it back on the 21st.”

During round-robin comments at the end of the Dec. 8 meeting, Rose complained of “hidden rules of the game that are in some ways counter intuitive.” That appeared to be in reference to the moratorium vote, but also, Rose said more directly, related to his ongoing defense of Fox, who has come under criticism for lobbying his fellow councilors on the NGL issue via a private email account.

The council was scheduled to enter into a workshop session following the close of its regular meeting to debate fire code amendments drafted by Fox and a host of NGL opponents. However, with 11 p.m. drawing near, the council voted unanimously to reschedule that debate to a Dec. 30 workshop.

Franklin Terrace resident George Corey submitted the proposed amendment to the city on behalf of the authors. According to Blake, an additional reason for the delay to Dec. 30 was that Corey submitted a revision just hours before the Dec. 8 meeting, which some councilors had not yet seen by the start of that session.

According to City Manager Jim Gailey, the code changes, if adopted, would prohibit the issuance of a fire permit to any commercial propane distribution facility located less than 1,800 feet from “critical infrastructure.”

“They provide a definition of ‘critical infrastructure,’ but the measurement is from property’s boundary lines and not the facility itself,” Gailey said in a Dec. 8 email.

In a Dec. 3 email, NGL’s regional operations manager Kevin Fitzgerald claimed the proposal is not meant to strengthen fire safety rules, but to ban his company from relocating to South Portland.

“In testifying about our proposed Rigby Yard project, former South Portland Fire Chief Kevin Guimond told city councilors, “We have the codes in place we need to make a safe decision,” and, “we will come out of this with a safe project. Given the chief’s testimony, and since NGL hasn’t had the opportunity to appear before the planning board to discuss our facility’s state-of-the-art safety features and operations, these amendments seem unnecessary and designed to preempt an open, transparent and predictable Planning Board review process.”

Councilor Morgan has publicly agreed with that assessment, saying, “Frankly, I think this deprives the applicant of due process. I question the ethics of it.”

At the Dec. 8 meeting, he had even stronger words for Fox’s efforts to derail the NGL project, including the moratorium proposal, the fire code amendment and a string of emails sent by Fox over the last several months, in which he allegedly tried to lobby his fellow councilors on the topic.

“In my 10 years of public service, this is one of the dirtiest, maybe most amateur attempts to block a project I have ever seen,” he said.

But Fox was unrepentant in a Dec. 16 email to the Sentry, even swiping back at Morgan.

“NGL is still not fulfilling their obligation to tell the planning board that their new plan does not abide by our long established city ordinances,” Fox wrote. “Gas storage in excess of 10,000 cubic feet is prohibited when stored for more than 24 hours. Their current plan states that two of their tank cars will do exactly that. That’s 60,000 gallons of liquid propane.

“I also find the distractions over my attempts to point out how NGL does not meet our city ordinances disingenuous, at best,” Fox said. “Why would a city councilor [Morgan], who ran as an avid environmentalist, support construction of a hazardous facility by an Oklahoma gas company who repeatedly provide false information to the city?”

More to come

On Dec. 6, NGL filed a request with the city under Maine’s Freedom of Access Act (FOAA) to see “all public records relating in any way to our proposal.”

“Given recent media indicating Councilor Fox used his private email account on at least 125 occasions to discuss NGL’s proposed project in direct contravention of city and state public access laws, we are increasingly concerned that he, and potentially other councilors, are actively engaged in subverting an open and transparent planning board review process before that process has even begun,” Fitzgerald wrote in a press release announcing the filing.

“We are additionally concerned that Councilor Fox is pursuing fire code ordinance amendments designed exclusively to prohibit the lawful development of our proposed facility,” Fitzgerald said. “Because these amendments appear so narrowly drawn as to target our project exclusively, we will actively monitor council deliberations and, should the council enact these amendments as written, reserve the right to pursue all means of redress, including legal action.”

In a Dec. 10 letter, South Portland’s public access officer, Mary Perry, advised NGL that fulfilling its public access request would chew up about 329 hours of staff time. Because state law permits municipalities to charge “a reasonable fee” to fulfill FOAA requests – and $15 per hour after the first hours of staff time spent on the request – Perry advised NGL it would have to pay $420 to get the requested documents. City policy is to request payment up front for any FOAA fulfillment bill topping $30.

Meanwhile, City Planner Tex Haeuser sent NGL a letter on Dec. 14 advising the company that its application has been deemed to be complete. A hearing in front of the city planning board is now scheduled for Jan. 12, Haeuser wrote.

Haeuser also wrote that NGL’s development application to the city was considered to have been complete as of Nov. 23, when it submitted the last of its materials for staff review. That could be a potentially important date.

Under state law, permit applications that have been given “substantive review” cannot be denied by subsequent adoption of new ordinances, or moratoria. However, the Law Court has ruled since 1988 that municipalities can make the effective date of a new ordinance or moratorium retroactive, to the date either was first considered. In South Portland, the proposal fire code amendment was not submitted until after staff review determined NGL’s application to be complete, although the need for some change to city fire codes was discussed before Nov. 23. Meanwhile, the moratorium also was discussed by the city council before Nov. 23, but it only references the city’s land use ordinances (found in Chapter 27 of the city code) and not the fire codes (found in Chapter 8).

Seemingly, that means if Rose’s attempt at reconsideration fails, opponents of the NGL proposal may have no options for a new moratorium based on the fire codes, or other application ordinances.

For Gailey, the issue has become so convoluted, he’s referred questions on what may happen next to the experts.

“This is a lawyer question,” he said.

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