2016-03-25 / Front Page

Fire code debate gets hot

By Wm. Duke Harrington
Staff Writer

SOUTH PORTLAND — After hours of hot debate Monday, featuring claims and counter claims of back room dealing and conflicts of interests, the City Council voted 4-3 to adopt the first reading of a new fire code that, in light of recent events, may become moot.

The vote, which finally came just after midnight Monday, establishes a 1,257-foot buffer zone between critical public facilities and any propane distribution complex. Councilor Brad Fox, who submitted the ordinance amendment –drafted for him by Franklin Terrace resident George Corey – has not been shy about acknowledging its purpose was to block construction by NGL Energy Partners of a 10-acre propane storage field at the Rigby Rail Yard.

Because of its proximity to the Cash Corner fire station, NGL’s proposal for space it wanted to lease from Pan Am Railways at Rigby Yard would have to come off the table.

“Businesses that put profits before people have no business in our community,” Fox wrote in a statement released following the meeting.

But NGL has already decided it doesn’t want to live in South Portland.The company, which is being forced out of its longtime home in Portland by redevelopment of the International Marine Terminal, submitted its first application to the South Portland planning department more than a year ago for its Rigby Yard proposal. That application was questioned early on by Eben Rose, later elected to the city council, and soon became bogged down in questions over the legal definitions of liquefied petroleum gas and various kinds of storage tanks. Along the way NGL discovered in a series of reinterpretations by city staffers, often at the prompting of Rose and others, that it could not build as many permanent storage tanks as it had hoped, and then that it could not leave large amounts of propane in rail cars overnight.

On Thursday, March 17, the company pulled the plug.

“Despite a yearlong, good faith effort by the company to address all legitimate safety concerns and to comply with the city’s existing and prospective regulations, it has become apparent that some in city government are determined to oppose the project by any means possible and under any circumstances,” wrote NGL’s regional operations manager, Kevin Fitzgerald, in a prepared statement.

Fitzgerald said that in order to serve the 50,000 business and residential customers it has across the region, NGL will temporarily increase capacity at its other distribution points, including in Auburn. Meanwhile, it will launch a search for a new home for its $3 million development.

“We are confident another Maine community will value the jobs, financial investment, tax revenues and energy security our terminal will provide,” Fitzgerald wrote.

But Fox was, by his own admission, unimpressed.

“NGL’s proposed facility never met the requirements of our city ordinances, no matter how NGL tried to reconfigure it to get around our sensible city specifications,” he wrote. “The company actually ended up making their plan more dangerous in their attempts.”

The fear among Fox and many Thornton Heights neighbors of the rail yard, who spoke Monday night, as well as at a host of council meetings in recent months, was that an accident, whether mechanical or caused by human error, could cause a conflagration of epic proportions. NGL, supported by local fire department officials, has said the likelihood of an accident is negligible, in part because a propane tank must become super-heated in order to create a spectacular explosion like the ones referenced in news reports often cited by Fox.

But more concerning to some on the city council was the mysterious means by which Fox’s fire code amendment landed back on its agenda.

At a Jan. 11 workshop, the council largely rejected the Corey-drafted code amendment, saying that it was “confusing,” given a preamble supported by newspaper accounts and student papers that would make it hard to defend in court against a likely legal challenge by NGL. The council is asking that the planning department develop an alternative that might address the concerns of residents, but also sent the result, reviewed at the Feb. 1 council meeting, back for additional tweaking.

At Monday’s meeting, a do-over of the staff version was represented. But also on the agenda was a heavily edited version of the Corey-authored amendments.

According to Councilor Claude Morgan, he and his peers also received detailed instructions on the parliamentary procedure required to table the staff version, while forwarding the Corey amendment along in the process to passage. A memo to the council from City Manager Jim Gailey explained why there were two competing versions of the fire code amendment on the table, reminding them that they had agreed upon a “two-pronged approach.”

But that came as apparent news to Morgan, who says his recollection is that the Corey version adopted by the council Monday had previously been rejected out of hand.

“My memory is not in synchronicity with any of those explanations,” Morgan said.

More troubling, Morgan said, is the appearance that someone, some members of the council may have been conniving behind the scenes, “badgering” Gailey to re-introduce the earlier code update.

“It appears to be a back room deal to get that on the agenda. It appears that all of the votes had been lined up,” Morgan said.

Fox and Rose voted for the new code with its critical infrastructure buffer zone, as did Mayor Tom Blake and Councilor Patti Smith.

Joining Morgan in voting against it were Councilors Maxine Beecher and Linda Cohen. The minority also had the backing of the city attorney, who warned that even with NGL now out of the picture, Pan Am might challenge the new fire code as an infringement on federal pre-emptions against land-use regulations that seek to limit or infringe on rail transport.

However, Corey has said repeatedly in letters to Gailey and City Planner Tex Haeuser that he drafted the block on NGL as a fire code specifically to work around Pan Am’s ability to disregard some local land use regulations.

In what Fox has said was a two-pronged approach, he and his supporters also backed a moratorium on propane development, which sought to buy time to amend city zoning ordinances. However, the council eventually rejected that approach because, unlike the fire code amendment, it required a super-majority of five votes for passage, as do all new zoning rules.

The debate also has drawn accusations on both sides of legal conflicts of interest.

At Monday’s meeting, Morgan questioned the involvement of Russell Pierce, a member of the Portland law firm Norman Hanson DeTroy who was called upon by Gailey to edit the Corey code amendment. Another member of Pierce’s firm, Thirlmere Avenue resident Devin Deane, has been a vocal opponent of the NGL proposal.

Meanwhile, in a March 21 email to Mayor Tom Blake, Corey said he planned to report city attorney Sally Daggett to the Maine Board of Bar Overseers, for “ethics issues” related to work done to the state version of fire code amendment, in partnership with Bruce Sleeper, another lawyer in her firm, Jenson Baird Gardner & Henry, and with Foley Hoag, the Boston law firm that also is defending South Portland in federal court in a suit filed by Portland Pipe Line Corp.

Corey also objected to the city posting Foley Hoag’s opinion, backing the staff amendment over his own, as well an engineering report on the NGL proposal, both of which he said undermine the legal case against his work by publicizing opposing views.

“Sally has demonstrated persistently bad judgment,” Corey wrote. “You basically have a city manager and city attorney undermining the council’s work.”

The ongoing conflict, both at council meetings and allegedly behind the scenes, has left a bad taste in many mouths, Morgan said, leaving the impression that South Portland is a place that changes rules midstream when it doesn’t like a particular development proposal. But for others, it’s how councilors interact lately that has been toughest pill to take.

One person, Summit Street resident Jeff Selser, was so incensed at what he saw happening while watching the broadcast of Monday’s meeting on South Portland Community Television that he left his home and rushed to council chambers to give city leaders a personal dressing down.

“I love our city,” he said, “but we’ve got – what it looks like to me, as a citizen – is staff that are being mercilessly bullied by councilors who, to be honest with you, I see as behaving like toddlers when they can’t get their way. [It’s like] ‘I will cry, and I will whine, and I will scream, and I will stomp my feet until I get my way.’

“Fine. If that’s the way you want to behave, fine. But that’s the way people see that,” Selser said.

“We want our elected officials to govern,” Selser said. “So, govern. And when you govern, govern in the public eye, so that everybody understands what’s going on. But that’s not what’s happening here. I love this city. I have always respected this council. But right now I could not be more disappointed in how it has conducted itself. It stinks. And it’s making us look terrible.”

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