update (May 30, 2012): Oral argument was held yesterday, May 29, at the 3rd Department Appellate Division at the Empire State Plaza in Albany.  We now have to wait a month or more to receive the judges’ decision.  My allotted ten minutes to present our case were nowhere near enough to make my points and answer the questions of the panel of five judges.  The wild thunderstorms in the area caused the biggest excitement: while at the security checkpoint at the entrance of the Abrams Building, the power went out and there was a long period with only emergency power, while we wait to see if the court session would resume.

  

- the 30,000-gallon propane tank that Duanesburg permitted in the category of  “retail shop or store” is seen from near the Miners’ front door; click on the image for a larger version -

By filing their Appellants’ Brief with the 3rd Judicial Department Appellate Division on Monday, March 19, 2012, Bill and Cyndi Miner continued their fight against a giant, 30,000-gallon propane storage tank that the Town of Duanesburg allowed Long Energy to place within 200′ of their home last year under the special use category of “retail or wholesale shops or stores,” in its C-1 commercial zone.  [The story of their court battle is told at our weblog post “Duanesburg needs a dictionary," July 14, 2011, with updates.] Click here for the Statement of Facts from the Miners’ Brief, dated March 19, 2012, Miner v. Town of Duanesburg Planning Board et al, NYS Supreme Court, Third Department Appellate Division, Case No. 513780. [note: the author of this weblog is the attorney for the Miners in the Appellate Division proceeding.  Share this post with the short URL: http://tinyurl.com/tankappeal ]  update: schedule (April 17, 2012): Respondents’ Answer briefs must be served and filed no later than May 4, with appellants’ Reply Brief due within ten days of service.  Oral argument is scheduled for the 1 P.M. session of the appellate court on May 29, 2012.

The Miners’ Appellants’ Brief makes the following major points, appealing the July 22, 2011 decision of Justice Barry D. Kramer of the Supreme Court in Schenectady County:

• Laches. Judge Kramer should not have applied the doctrine of laches (that inexcusable delay bringing the lawsuit was unfair to Long Energy, although the Miners filed within the statute of limitations), because: (1) the Miners had delayed suing because they thought they had reached a compromise with Long that would prevent litigation; (2) Long Energy had notice that the Miners were contemplating a lawsuit and therefore may not raise a laches defense; (3) the harm to Long if they were forced to stop operations at the site would not be “undue”, because Long took a calculated risk (knowing their tank was not a retail store) and because the tank can be removed and reused elsewhere.
•  Exhaustion of Remedies.  The court below erroneously dismissed their claims after finding that before coming to court the Miners should have first appealed to Duanesburg’s Zoning Board of Appeals the “determination” of the Town’s Code Enforcement Officer, Dale Warner, in which he decided the application for the bulk propane facility fit into §11.2.3 of Duanesburg’s Zoning Ordinance, the “retail store” special use category).  By not going first to ZBA, the court concluded, the Miners “failed to exhaust their administrative remedies”.  The Miners claim they were not “aggrieved” by Mr. Warner merely referring the application to the Planning Board for action, and therefore were not required nor allowed to go to ZBA, and instead must appeal to the Supreme Court the grant of the special use permit, under New York State Town Law §274-b(9).  They also point out that Duanesburg’s zoning ordinance is unique, requiring the Planning Board to ensure that the proposed use is in compliance with all standards and requirements in the entire Ordinance before granting a special use permit.  That obligation distinguishes this case from those in which the courts have said a planning board may not interpret a zoning ordinance and decide a proposed use is not permitted.

• “Retail Store“:  On the merits, the Planning Board and the Supreme Court were wrong to conclude that a bulk propane facility was allowed in the C-1 zone under the retail store category. The plain, ordinary meaning of the words “retail store” must be applied by the Board, which instead decided to follow the interpretation of the Code Enforcement Officer that it was a permitted “retail establishment” because Long’s bobtail trucks took propane from the facility and delivered it to Long’s customers’ homes and businesses.  The Miners pointed out that the propane facility, which has no personnel, no buildings and no sales or public access on the premises, was neither a store nor a retail use of the parcel.

- notice the lush landscaping and sturdy “buffer” between the tank and the road -

• Neighborhood Impact.  The Board was wrong to conclude there could be no adverse impact on the neighborhood because it was already zoned commercial, and therefore the Board did not adequately protect the character of the neighborhood and its property values.  One example: the Board did not fulfill its obligation to assure an adequate visual and noise buffer between the facility and nearby lands, when it allowed Long Energy to merely plant 4 deciduous trees across the 250′ frontage along Western Turnpike, with nothing else between the tank and the road, including no vehicle barriers such as bollards. See the discussion about The Neighborhood below.  Also, the Board allowed Long Energy to renege on its promise to put a perimeter fence and entry gate on the facility in order to control access.

•  SEQRA: The Board failed to fulfill its obligation under the State’s Environmental Quality Review Act, because it did not take a “hard look” at potential significant harm to the public health and the character of the neighborhood — especially the failure to look at ways to lessen the likelihood and effects of a catastrophic explosion of the tank.

The Neighborhood:

     When Bill and Cyndi Miner bought their home in 1999, their parcel and all the lands across the street were zoned “Agricultural-Residential”.  In 2001, Duanesburg superimosed a C-1 Commercial zone 500-feet deep along both sides of Western Turnpike.  Patrick Barnes, the Planning Board Member who chaired the public hearing on Long’s special use permit and rushed through the unanimous vote a few minutes after the hearing ended, swore in his affidavit to the court that the neighborhood is already “predominantly commercial.”  In fact, there are mostly residences and agricultural or vacant lands in the immediate neighborhood of the propane tank and the Miners’ home, plus a church.

The Record that is going up to the appellate court doesn’t show the neighborhood in great detail: For example, it does not show that on the tank’s side of the road, heading west, there is a row of at least five single-family residences next to the vacant field that borders the propane facility, nor that heading east there is another row of single-family homes starting next to the equipment leasing firm that borders the propane storage facility.  The heavy equipment firm is, in fact, the only parcel with a commercial use that is visible along that side of the road (except farms) for perhaps a  mile.

Here is a map showing only the parcels that we know about from the Record that was before Justice Barry Kramer in the Article 78 proceeding, which the Miners are appealing.  [The only facts that can be argued to an appellate court are those in the Record from the proceedings below.] After the map, I’ve indicated each parcel and how it is used (with references to the Record on Appeal).  Clearly, I think, this is not a “predominantly commercial” neighborhood:

. . .

As you can see, there is a lot of land that is still covered in green, and lots of lots with homes that have been there from before there was a C-1 zone along Western Turnpike.  Also, the dark area in the top left-hand side of the map is a bog that straddles both sides of the road.   Although Duanesburg has no Heavy Industrial Zone, the Planning Board let a dangerous, looming, industrial facility be placed in this pleasant rural neighborhood.

- map submitted by Long of the same stretch of road . . . click on map to enlarge -

An applicant such as Long Energy is required under the Duanesburg Zoning Ordinance to provide the Planning Board with “a map showing the important existing natural and man-made features in and around the site” [§14.6.2.2], and to submit “a sketch or map of the area which clearly shows the location of the site with respect to nearby . . . properties . . . and other pertinent features.” [§14.6.1, Sketch Plan review (b)] Nevertheless, the dismally low-resolution image above this paragraph is the better of the two images/maps of the area submitted to the Planning Board by Long Energy. It fails to indicate that any of the row of buildings to the west (left) of the tank, which you can see if your squint hard enough, are homes; in fact, each of them is a single-family residence.   The Board did not ask for a better map.

 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; Art is an expert in challenges to zoning actions.  In December 2011, I took over as the attorney of record for my good friends 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.

- the Miners’ antique shop in their barn near their home along Western Turnpike -

Above is the old barn that Bill and Cyndi restored for their weekend, seasonal antique shop.  It’s located west of their house, about 500 feet from the Long Energy propane tank.  Long and the Town have argued that because the antique shop is “commercial” and the tank facility is also “commercial” there won’t be any effect on the neighborhood having the propane tank located there. (Note as you look west toward the sunset that there are no other “commercial” entities in sight.)

p.s. Here are a few more facts that we wish were on the Record and could be taken into consideration by the appellate court:

• There have been judicial decisions that mention that a Town planning board or town board informed a neighbor that the correct place to bring a complaint that a proposed use was not permitted is the town’s zoning board of appeals.  (For example, Swantz v. Planning Board if the Village of Cobleskill, 34 A.D.3d 1159; Cowger v. Mongin [ZBA of Niskayuna], 87 A.D.2d 932).  Not here.  When Bill Miner met with the Town Supervisor and the Town Code Enforcement Officer the day after the special use permit was granted for the propane facility, he was told by the Town Supervisor that the only thing he could do to stop the project was to go to court.   They urged him, however, instead to “reach out” to Mr. Long to try to reach a settlement, which Bill did.
• Bill Miner not only offered to avoid a lawsuit if Long built a large berm to act as a visual and noise screen/buffer and barrier to protect against damage to the tank, Bill also offered to build the berm for Long, with the help of other neighbors with the equipment and know-how to do so.  And, Bill also offered to plant the row of evergreen trees on top of the berm for Long.
•  Not only does the Department of State local government office indicate in its Guidelines for Applicants to the Zoning Board of Appeals that a neighbor is not “aggrieved” (negatively affected) until a Code Enforcement Officer actually issues a permit or certificate to the subject landowner, so do the BZA Guidelines for Applicants of the City of Schenectady, and the Zoning Board of Appeals primer of the Westchester County Planning Federation. (Those guidelines for zoning boards were discovered by me after only a very quick research attempt.  There are surely others that also support our argument that the Miners were not “persons aggrieved” by the mere referral of Long’s special use permit request to the Duangesburg Planning Board by the Code Enforcement Officer Dale Warner, and they therefore did not have to go first to the ZBA before going to court.)
• Duanesburg’s Comprehensive Plan  describes neighborhoods such as that of the Miners and the Propane facility in the following statement (at 45):
  • “Much of the Commercial District is currently vacant or in agricultural use providing ample acreage to accommodate business development. Certain areas are predominantly occupied by single family dwellings since they are a permitted use by special use permit. In areas of Commercial Districts dominated by single family dwellings, consideration should be given to rezoning the property to accurately reflect existing land use.”
• Table 7.1 of the NFPA/NPA Fire Safety Manual, which was used by Long Energy to evaluate their bulk propane facility, shows — as one example — that the release of the inventory of transfer piping as small as  2″ x 30 ft. long at 80 GPM for ten minutes can result in an Explosion Hazard Distance of over 250 ft.  [The Miners' home is less than 200 feet away.] Imagine what any significant rupture of the tank itself could do.  Long’s Fire Safety Analysis, upon which the Planning Board relied in saying there was no risk of explosion or fireball to neighboring properties, only dealt with brief releases from shorter lengths of 1″ and 2″-diameter piping and hoses. See Table 7.1 in Long’s FSA . [If interested, click here for the full 2011 edition of the NFPA/NPA Fire Safety Manual]

 .  .  .

- in a perfect, Duanesburgian world, safe enough -

The Zoning Board of Appeals of the Town of Duanesburg voted last night, 4 to 2, to reject Bill and Cyndi’s appeal of the issuance of a Certificate of Occupancy to Long Energy for operation of its 30,000-gallon bulk propane tank facility, which sits 200 feet from their home on Western Turnpike (Rt. 20).  The only question before it was whether the existing vehicle barriers are adequate under the NYS Fire Code.  More specifically, the Board had to determine whether more and improved barriers were needed for all or portions of the tank, using the strict standards of Fire Code §312, because the tank was “exposed to vehicular damage” due to it being “in proximity” to the driveway and parking areas within the meaning of Fire Code §3807.4.

The lengthy Resolution passed by the Board repeatedly stated that the vehicles using the facility would be able to keep a “sufficient distance” from the tank and would not be able to reach a high enough speed to pose a risk to the tank.  No mention was made of any accidents happening or unauthorized vehicles coming onto the ungated and unmanned facility and posing a danger for the tank, which is only 70 feet from Western Turnpike.

- To sum up the apparent reasoning behind the decision of the Duanesburg Zoning Board last night:  Because we assume that everyone (including any unauthorized traffic) will drive safely, without driver error or equipment failure, the propane tank is safe from vehicular damage, despite its being only 70′ from the busiest road in town and being located on or very close to the semi-circular, gravel access driveway that must be used by all vehicles that enter or leave the unguarded and ungated facility. -

- part of our October 17 submission to ZBA -

Only ZBA members Russell Gage and Robert “Pat” Payst voted against the Resolution.  Chair Wendy Graves and Members Patricia Wall, Evie Rudesheim and Kathleen Kosinski voted in favor.  The entire “deliberation” by the members consisted of Member Payst saying the cement barriers on the south side of the tank seemed insubstantial.  Long Energy must have assumed a positive outcome, because it had no lawyers or other representative present, despite being served in the matter by the Albany firm of Ganz Wolkenbreit & Siegfeld.

Here is a portion of my submission to the ZBA pointing out why the current barriers were insufficient

    “Proximity” means nearness or closeness, according to countless dictionaries, including the Merriam-Webster online dictionary/thesaurus.  Since the east and west ends of the tank, along with its entire south side, are actually contiguous/adjacent to the driveway, the tank is clearly in the proximity of the driveway.

Therefore, the Board must decide whether the tank is “exposed to vehicle damage” due to the expected traffic on that driveway.  Such traffic includes the tanker trucks and bobtail tank trucks that are the primary facility visitors, plus company or contractor vehicles on-site for maintenance, repair or delivery of the customer-location tanks, as well as unauthorized traffic engaged in u-turns, repairs or mischief, or otherwise trespassing. As you know, the facility is located close to a busy road, with two roadside “curb-cuts” over 40’ wide, no entryway gate or guards to keep out unauthorized vehicles, and no personnel to help guide the movements of vehicles when maneuvering close to the tank.  It is already being used as a turn-around and a spot to attend to vehicle repairs.  In assessing the Long Energy tank’s exposure to vehicle damage, several additional factors should be considered:

• In common usage, “exposure to vehicle damage” means a tank is in jeopardy of sustaining such damage, not that the damage is inevitable.
• The exposure to damage does not mean only exposure that exists when all vehicles, drivers, and other personnel are operating in a completely correct and safe manner
• A meaningful exposure assessment must include situations where there has been driver error or misadventure, or a failure of one or more of a vehicle’s parts or systems (e.g., brakes), and it includes risk of impact created by unauthorized vehicles, and created by intentional as well as accidental impact.
• Such exposure is increased at the Duanesburg facility by weather conditions that regularly occur there — especially during the extensive heating season when the facility will be the busiest — such as fog, rain, snow, sleet, ice, etc.
• The difficulty of clearing down to its surface a gravel-covered driveway of snow and ice increases the exposure by reducing traction, even if the driveway were plowed and salted as soon and as often as needed
• Exposure is also increased by other facts: there is virtually no place for a vehicle to park other than the driveway; chains used to keep unauthorized vehicles from making a turn-around will force them to back down an incline to return to the road; the grassy portion in front of the tank is level and easy to access halfway up the driveway; and the fence surrounding the customer tank storage area behind the tank greatly limits the space at the top of the driveway through which all traffic must pass when coming and going.

Click here to see my submission to ZBA dated October 17, 2011, explaining further, with photos, why the barriers were inadequate (after we raised these issues Long Energy inserted two additional bollards at the east end of the tank to bring the distance between those barriers within the Code’s requirements); and click here for my December 1, 2011 letter to the Board responding to the ridiculous position taken by Jeff Siegel, attorney for the Town, that the Board must rely on the opinion of, William Smart, Long Energy’s hired engineer, because he is the only NYS certified engineer who has submitted an opinion on the adequacy of the barriers.

ZBA also concluded that the record was complete and it did not have to hear any testimony by the most important actor in this entire episode, Code Enforcement Officer Dale Warner, who issued the Certificate of Occupancy, nor allow the Miners or their attorney to question Mr. Warner about his decisions.  Mr. Warner took a rare vacation on the night of the November public hearing and did not appear at that Board meeting.  Click here for my Letter requesting that the public hearing be reopened to allow myself, and the Board, to question Mr. Warner.

At this time, we are expecting the inspector for the Code Enforcement office of the New York State Department of State to investigate this matter further and inform the Town of Duanesburg of what steps must be taken to comply with the vehicle barrier requirements of the NYS Fire Code relevant to propane tanks.

 Don’t forget, the giant tank is located near homes and businesses and a church in a commercial zone because the Town Planning Board gave Long a Special Use Permit in the category of a Retail Store.  This “store” has no building or personnel and makes no sales of any sort to customers.  It is merely a bulk storage tank, where Long Energy’s bobtail propane tank trucks fill up before making deliveries to Long’s customers.  See the full story, with facts and law explained, at “Duanesburg needs a dictionary“.

So, add “proximity” and “exposure” to the words the Town of Duanesburg can’t define correctly. And add one more example to the list of Duanesburg’s broken zoning promises.

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Just for the record, here is how I described this action before the Duanesburg ZBA at the original posting about the propane tank. [I'm moving the discussion here, to keep that posting focused on the overall facts and the challenge in the Supreme Court proceeding to what the Planning Board did issuing the special use permit]:

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- IOOF’s graceful and “strong little structure” (Gazette, A1, Jan. 31, 2012) is almost gone -

   

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- click on a photo for a larger version -

  update (Jan. 31, 2012): Today’s the fifth day of the physical demolition by Jackson Builders of the Odd Fellows Hall at 440 State St.   The terra cotta façade is gone and the entire building will be removed over the next few weeks.   This slideshow includes photos taken about 7:30 on this gloomy-gray morning at the site plus shots taken on November 20, 2011, when Tom Hodgkins and his children held an Architecture Appreciation Party for the building.  That story is below in the original posting. At the bottom of this posting you will find a Gallery with each of the photos; clicking on a Gallery image will bring you to a larger version; scroll over a Gallery image for a description

This slideshow requires JavaScript.

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- condemned façade of St. Paul’s Temple – IOOF Hall – during the Hodgkins Family Appreciation Party and Protest (20Nov2011) -

   Tom Hodgkins and his three kids had an Architectural Appreciation Party in front of 440 State Street the past two mornings.  As Tom explained in a message to our Stockade neighborhood email list Saturday night:

“We had fun today at our architectural appreciation party.  The kids played music, carted around the wagon, ate candy and fruit, while I discussed the fate of the building with pedestrians.”

. . click on a photo for a larger version; scroll over it for a description . .

Tom told the Gazette in the Sunday paper today: “We’re just appreciating this building and the values it embodies before it’s gone.  It’s already been done.  The city’s been bought out.  It’s done. We’re just here to appreciate it before it’s gone.” See “Man stands alone in protest of plan to raze historic Schenectady hall” (Sunday Gazette, by Bethany Bump, November 20, 2011, at B5; online by subscription) More of the story can be found in Thursday’s Gazette, in “Planners approve demolition of historic Odd Fellows hall” (Daily Gazette, by Justin Mason, November 17, 2011, at B1; online), which explained:

“Wreckers await the former International Order of Odd Fellows hall in the very near future.

“Members of the city Planning Commission narrowly approved drastic changes to a plan they approved in July, allowing building owner Tony Civitella to demolish the entire structure at 440 State St. . . .

“The approval will allow Civitella, the president and founder of Transfinder, to immediately move forward on demolishing the entire building. His original plans called for the leveling of the rear of the structure, but to retain the ornate terra-cotta facade and about 20 feet of the building’s front.”

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The Planning Board majority, with virtually no time for the public to weigh in, rushed to impose the death penalty on the Temple after Civitella came up with an engineering report saying the façade cannot be saved, and pressed for immediate action on his new plan due to imminent winter weather.  We’re supposed to believe that no one at Metroplex, no one in Civitella’s organization, and none of his architects thought to ask the obvious question last Spring: “can the façade be saved and can we afford to do it?” Instead, the building gets purchased at fire-sale rates, Metroplex promises grants — including a $60,000 façade grant — and the project is announced with great fanfare and applause for Mr. Civitella and Metroplex.   If there was no engineering report prior to the first approval, lots of heads should roll. Ditto, if there was an engineer’s report that endorsed the façade-saving plan.

  For me, it’s much too much like the sorry Gillette House bagel shop story from January, 2011, leaving the same bad taste in my mouth.   Shortly after much hoopla and back-slapping over a plan to “save” an important historical building, the shrewd businessman-buyer discovers his original plan is simply no longer viable, and civil servants with the obligation to look hard at the situation and to preserve and protect our architectural heritage give in without demanding lots of facts and taking time for appropriate consideration. It is outlandish that a decision could be made when Civitella only submitted his drastically altered plans two days before the Planning Commission hearing.   Does anyone know when Civitella got the first no-go engineer’s report and when he could have first given the Commission a heads-up?   It seems far too convenient that it happened so far into winter that the Commission could hide behind weather as a reason for its hasty action.

 You can bet there will be a great rush to knock that building down, especially the troublesome façade.  A lawsuit will be complicated and expensive, and have only a slight chance of finding a sympathetic judge who could act in time to save this fine old building.

Thanks to Planning Commission member Matthew Cuevas for trying to slow down the process by tabling the measure.  And, thanks to Schenectady Heritage Foundation Chairwoman Gloria Kishton, for frantically piecing together public opposition over such a short timeframe.  Especially, thank you, Tom Hodgkins and kids, for reminding us what we’re losing.  As Tom told our email group yesterday:

  “Spending time in that location really gives one some perspective on how few historic buildings remain downtown, and the loss of a building built by the people for the people in the name of love is a crime.  Its not the loss of a bank, or some industrialist’s residence, it is the loss of a temple. “

The Hodgkins kids always make me grin (often due to their photogenic charms).  But, seeing them at this Party-Protest had me smiling even more, hoping some of their dad’s zeal will rub off, so they’ll never simply take for granted the old buildings they see every day around their Stockade home.  At the rate they’re coming down despite laws meant to protect them, there soon won’t be any historic buildings left to preserve in downtown Schenectady.  The only, slight consolation will be that Tom and Gloria and I, and other lovers of our architectural heritage won’t have to have our Thanksgiving meal ruined with a holiday case of Demolition Agita.  This year, however, I’m heading to my medicine cabinet for a second helping of architectural-size antacid.

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- share this post with the short URL http://tinyurl.com/AppreciateIOOF -

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, some of the facts we wish were on the Record and could be considered by the appellate court.

• Click here for the Statement of Facts from the Miners’ Brief.

  

  . .  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, as they did in Duanesburg.

The Town 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 (100- and 200-gallon) storage tanks 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 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 Miners' proceeding 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 had 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:

http://tinyurl.com/propanetanked

  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 -

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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.

• Town of Duanesburg Zoning Ordinance 2009 and its Comprehensive Plan 2006
• the most relevant Zoning Ordinance excerpts and Comprehensive Plan excerpts

• Sunday Gazette Viewpoint OpEd column, “Propane tank ruling creates nightmare for Duanesburg couple” (July 31, 2011, by David Giacalone), with summary of issues.
• video segment from WRGB Channel 6 News, “Duanesburg Doomsday Scenario” with Randy Simons (August 2, 2011)

• 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:

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. 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.

It’s easy to see why Long’s engineer told the Planning Board in December 2010 that they would “go along to get along” to get their special use permit.  It is more difficult to understand why the Board would go along with Long, 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.

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 in the office of  Town Supervisor Rene´ Merrihew with Ms. 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.  However, 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 the 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 reduce his losses and 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 hasty 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, if the tank were placed on either of the Miners’ two (500 ft. deep) side-lots, it would have been farther from their house 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 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.  That’s why Judge Kramer 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,” 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:

- stump created Oct. 20, 2010 at 33 Front St.

. . . 

- Devin watches a City crew trim the tree in front of 33 Front St. on October 14, 2010 -

[as always click on a photo for a larger version and scroll over it for a description]

Little did Devin and I know last week (October 14) when we watched a crew trimming the locust tree in front of 33 Front Street that it was being groomed for an execution six days later.

. . . or, did Devin know better than I? . . .

. . . that this would be the scene when we stopped by one week later (Oct. 21):

— Nothing to block our view of Lawrence with the ill-fated tree gone —

When I heard on Wednesday afternoon that the mature, healthy-looking shade tree in front of Nancy and Fred Jonas’ home had been chopped down earlier that day, I made a quick stop to see the (irrevocable) carnage and take a few photos.

- tree stump with sawdust in front of 33 Front St. the day the tree was chopped down -

- from stump

. . .

. .  to trunk to top (taken Oct. 14) that tree sure looked healthy -

As you can see, however, the roots of the tree had disrupted the adjacent sidewalk.

Was the tree ill despite its apparent good health? Was the buckled sidewalk enough to seal its fate?  Did the tree offend someone in some other way?  Was every alternative adequately considered before permission was given and the decision was made to remove the tree?

As the masthead above suggests, I think we should do all we can to preserve every healthy tree in the Stockade .  More than ever, I  believe — as argued in a posting on June 18, 2010 — that “Schenectady needs a tree preservation policy.”

The City of Portland, Oregon got it right on its Parks and Recreation webpage (emphasis added):

STREET TREE REMOVAL: for trees growing in the right-of-way, between the curb and sidewalk:

Portland’s urban forest is a valuable asset, and all trees on public property are protected. Trees provide increasing benefits as they grow, and mature trees are an asset that requires decades to replace. Urban Forestry carefully considers each and every request to remove a street tree, and encourages tree planting, regular tree maintenance, and alternatives to tree removal except where no viable alternative exists. Street trees can only be removed if they meet the criteria of being dead, dying, or dangerous. Conditions that do not warrant removal include the tree dropping fruit or leaves, the tree being perceived as too tall or making too much shade, or the cost of routine maintenance.

What do you think?  I hope Devin will be around to benefit from the beauty, shade and other attributes of the tiny tree that is purportedly going to be planted to replace the mature one felled this week.  I fear that neither I, nor the rest of my Baby Boom generation neighbors, or our elders, will be so lucky.   Please tell our local leaders that we need a tree preservation policy in Schenectady — especially for the Stockade and other historic districts.

follow-up (October 26, 2010):  Thanks to Tom Hodgkins of N. Ferry St., I can present a more complete image of the felled locust tree:

The tree was responsible for creating some great shadows on the sunny day we had this year for the Outdoor Art Show:

 

In an editorial titled “Stockade side-walk about” the Schenectady Daily Gazette has once again called for saving the Stockade’s trees, even if it means not repaving some of its sidewalks — and even if it takes a year or two to hammer out the details with Stockade residents.  (June 25, 2010, at A11; $ubscription needed for web access)   See our prior posting “The Gazette favors trees over sidewalks,” April 17, 2010, reporting on that day’s Gazette editorial.

Today’s editorial says Stockade residents:

“were entirely right in condemning the city’s act of environmental vandalism two years ago when it chopped down some majestic old trees on North Ferry Street while repaving the street and redoing the sidewalks there. It was a major mistake, compounded by the fact that the city didn’t consult people in the neighborhood before doing it.”

[See our posting of June 18, 2010 (with numerous photos) covering a recent Gazette news article blaming No. Ferry St. lessons for a delay in repaving Washington Ave.]

The editorial also notes that the City “messed up” on No. Front Street when it did not enter into contracts with every property owner and did not collect from all of those who had extras like brick or bluestone installed during the sidewalk repaving.  It quotes General Services Commissioner Carl Olsen saying he won’t start the sidewalk work  until he has signed contracts and money up-front from residents on Washington Ave.

Like the proprietor of this weblog (prior post), the Gazette asserts that the fate of the trees on Washington Avenue — even those “whose roots have heaved some of the sidewalks” — “shouldn’t be left to residents to decide about keeping, or be responsible for.”   The editorial concludes:

“Even if it costs extra to reroute the sidewalk around large trees, as was done on Lowell Road in the GE Plot, that’s how it should be done and the city should pay for it. If rerouting isn’t possible, then the street should be repaved without redoing the sidewalk.

“And if it takes another year or two to work all this out, that’s OK. It takes a lot longer than that to grow a tree.”

Now, if only we could get the Editorial board at the Gazette to rethink its hasty position favoring a dock in Riverside Park.  See “help stop the Riverside Park dock,” at our sister weblog, suns along the Mohawk.

The City of Schenectady’s reply to the Freedom of Information [FOIL] request that I submitted on April 15, 2010, concerning the repaving of Washington Avenue and the effects on its trees, was skimpy but enlightening — actually, its skimpiness was what made it enlightening.  Click here to see the text of my request, which was made because the City Engineer had informed property owners that every mature tree along the curb on both sides of the street would be removed during a project to repave the road and repair/replace its sidewalks. [the first post at this weblog explains further, with lots of photos]  The City’s reply to my FOIL request can be easily described:

Only two pages were provided in response to my FOIL request: two plats, dated 03/24/10, showing “existing street layout” and “proposed street layout” for the repaving and sidewalk repair of Washington Ave.  All other requests were denied in an April 30, 2010, letter from Corporation Counsel, for the stated reason that “No records exist which responds to request.”

That means there were no documents relating to the environmental impact of repaving on Washington Avenue or the Stockade District, nor concerning the applicability of the New York’s SEQRA regulation to any such repaving project.  That is not surprising.   What is surprising, or at least highly disappointing, is the fact that there were no records responding to the following request:

Rules, regulations, legislation, or policy statements regarding (a) the preservation or saving of trees affected by street or sidewalk repaving or repair actions; (b) the impact of actions taken by the City within or having an impact on an historic district.

If there are no such documents nor relevant legislation, regulations, or policy statements, it means that the City of Schenectady has no rules or guidelines concerning the preservation of trees that are affected by the actions of a City agency, or of private persons fulfilling a City contract — not even with regard to the impact on one of the City’s historic districts, where even minor changes in building façades or street scenes are usually banned when other reasonable alternatives exist.

Not only are there no laws on the books, preservation of our valuable mature trees is not even mentioned in the Schenectady Comprehensive Plan 2020, which repeats (at 86 of the Community Profile section) the recommendations made in the 2003 Tree Master Plan for the City of Schenectady.  The Tree Master Plan was commissioned by ReTree Schenectady, which claims to be “dedicated to the planting, care, and conservation of current and future generations of trees in the City of Schenectady.”  Nonetheless, preservation of existing trees is not among the eight recommendations identified in the Master Plan. One of the recommendations is, however, to “Remove or trim older trees in poor condition.”

. . . . .

- above is the endangered tree canopy of Washington Avenue; our Masthead shows the equally endangered trees at the west end of Front St. —

This is a strange situation for a City which is so proud of its Historic Districts (especially the Stockade) and of it’s designation as a Tree City, USA, and which has so much to lose if it practices thoughtless or inadvertent deforestation.  In today’s Schenectady Gazette, Commissioner of General Services Carl Olsen says he expects the planning that is delaying repaving [negotiation with Washington Ave. residents on saving our trees] will be useful for further historic district paving projects, and he wants the residents to be pleased with the end result.  See our post, “No. Ferry St. lessons said to cause repaving delays” (June 18, 2010), which has photos of No. Ferry street stripped of its mature shade trees; and the Schenectady Gazette article  “Sidewalk talks delay paving of Washington Avenue in Schenectady”  (by Kathleen Moore, June 18, 2010; subscription needed for access to article).

. . .

- No. Ferry St. stripped of its mature trees due to repaving -

Far better than relying on random lessons learned from the Washington Ave. situation, Schenectady should use this situation as the starting point for study, consideration and creation of an explicit policy on preserving our mature trees — by passing legislation, promulgating regulations, and/or issuing an executive order.  Many other wise counties, cities, towns and historic district commissions have already done so.

Although a tree-preservation policy is needed for the City’s entire urban forest, it is especially appropriate and necessary for its historic districts.  The City’s Zoning Law, Article VIII of Chapter 264 of the Schenectady Code, gives as the purpose of our Historic District legislation (among other things) to:

▪    Safeguard the heritage of the City of Schenectady by preserving resources in the city that represent or reflect elements of its cultural, social, economic, political and architectural history.
▪    Protect and enhance the attractiveness of such historic resources to home buyers, visitors, shoppers and residents and thereby provide economic benefits to the city and its citizens.
▪    Conserve and improve the value of property within Historic Districts.
▪    Foster, encourage and advise the preservation, restoration and rehabilitation of structures, areas and neighborhoods.
▪    Promote the use of Historic Districts for the education, enjoyment and welfare of the citizens of the city.
▪    Foster civic pride in the beauty and history of the past as represented in the Historic Districts.

A tree preservation policy can help achieve many of the City’s Historic preservation goals.  As the City of Portland, Oregon, states on its Parks and Recreation webpage (emphasis added):

STREET TREE REMOVAL: for trees growing in the right-of-way, between the curb and sidewalk:

Portland’s urban forest is a valuable asset, and all trees on public property are protected. Trees provide increasing benefits as they grow, and mature trees are an asset that requires decades to replace. Urban Forestry carefully considers each and every request to remove a street tree, and encourages tree planting, regular tree maintenance, and alternatives to tree removal except where no viable alternative exists. Street trees can only be removed if they meet the criteria of being dead, dying, or dangerous. Conditions that do not warrant removal include the tree dropping fruit or leaves, the tree being perceived as too tall or making too much shade, or the cost of routine maintenance.

Portland’s Street Tree Removal & Replanting brochure explains further:

Benefits of the Urban Forest

Portland’s urban forest is a valuable functional and aesthetic asset that is vital to the livability of our community.  . . . Trees soften and beautify the city landscape, offer habitat for wildlife, and provide essential ecosystem services such as capturing runoff, removing air pollutants and CO2, dampening noise, and modifying temperature extremes. The regular care and maintenance required by urban trees is a small investment relative to the large returns they provide – for publicly owned trees, less than $1 invested returns over $3 in benefits.

A City interested in attracting visitors to its historic districts (or business section) should also pay attention to the Clarksburg Historic District  [Montgomery Count, Maryland] Streetscape Concepts Study (at 26, sec. 2.7). It makes this (obvious but often ignored) statement:

“Street trees and landscaping can greatly enhance the appearance of a streetscape. They can also provide shade and greenery that makes a place more walkable and inviting for pedestrians.”

. . .

- No. Ferry St. stripped of its mature trees due to repaving -

The Schenectady Gazette has an article today on the delay in paving Washington Ave.  “Sidewalk talks delay paving of Washington Avenue in Schenectady” [must subscribe, register for access to article], by Kathleen Moore.  Lessons learned from the re-paving of No. Ferry St. are given as the reason for the delay:

1) Some residents did not pay for upgrades to their sidewalks last time, so Commissioner of General Services Carl Olsen says “he’s going to have everything planned — and all contracts signed — before construction season.”

2) Residents of Washington Ave. do not like the look of No. Ferry St., with its shade trees removed, and do not want the same thing to happen on their stress. Thus,  thus months of negotiations will be needed, as “residents and city officials are talking about rerouting the sidewalk around big trees, or simply paving the street without redoing the sidewalks.”

. . . . 

- Washington Ave. residents don’t want their shady block (l) to look like No Ferry St. (r) -

According to the Gazette, “[Olsen] expects the planning will be useful for further historic district paving projects, and he wants the residents to be pleased with the end result.”  As I will argue in an upcoming posting, Schenectady badly needs a policy governing the treatment of existing trees when the City repaves or takes other actions.  follow-up (Noon, June 18, 2010): See our posting “Schenectady Needs a Tree Preservation Policy.”

update (June 25, 2010): See our posting “Gazette again roots for Stockade trees.”

. . . p.s. If the grand trees in front of St. George’s Church on No. Ferry St. had been alongside the curb and not a few feet away on the Church’s front lawn, they would also have been removed.

There have been rumors the past couple of weeks that the re-paving of Washington Avenue would be delayed until next year –  for reasons not specified, but causing much speculation.   Gloria Kishton (the Chair of the Schenectady Heritage Foundation and a member of the Stockade Association Board) has been acting as a liaison with the City of Schenectady concerning the repaving.   Today, Gloria sent an email to Washington Avenue owners and residents, which stated in part:

“We have confirmation that the City is not paving Washington Ave. this season, but does intend to do the project next year (2011). This information is from Carl Olsen, Commissioner of General Services, who oversees paving projects for the City.

“Although disappointing, postponement affords more time for planning which should result in a better project. . . .

” . . .  What’s next: We will be setting up a meeting with the City for the purpose of starting a dialogue about the project. We are optimistic that this will lead to an exchange of ideas and solutions that will address the issues you all raised at the April 18 neighbor meeting, while also taking into account the needs of the City.”

Gloria also informed us that an arborist who took an informal look at the Washington Avenue trees concluded that many of them would not withstand the root loss that would result if the City were to dig up the road bed, curbs, & existing sidewalks and medians.  Gloria suggests Googling sidewalk and trees to find out more about the problem of tree roots impacting sidewalks.  For example, see this  L.A. case study.

The editor of this weblog recommends that you also take a look at the web materials and brochure from the City of New York ‘s Trees & Sidewalks Program, which was established to help “homeowners repair sidewalks damaged by curbside trees while minimizing the impact of the sidewalk repair to the tree.”

update (June 18, 2010):  See our post, “No. Ferry St. lessons said to cause repaving delays,” about today’s Schenectady Gazette article  “Sidewalk talks delay paving of Washington Avenue in Schenectady” [must subscribe, register for access to article], by Kathleen Moore.

Fifteen property owners and residents of Washington Avenue met last night (Sunday, April 18) at the home of Bob and Sylvie Briber to discuss the repaving of the street. I am very happy to report that there was a quick consensus among the group that we attempt to save as many trees as possible.  The group also agreed to bring in a private arborist to help evaluate the trees.

Gloria Kishton, President of the Schenectady Heritage Foundation, chaired the meeting (quite ably), and the Foundation’s Vice President, Rob Petito, acted as the conscientious scribe.   Gloria and Jack MacDonald are jointly serving as intermediaries between the City Engineering Department and Washington Avenue property owners on the repaving project. Jack, a civil engineer familiar with the City’s procedures with construction projects, gave information on the project’s history and processes.

Despite the rather surprising consensus on the trees and other issues, I will admit that there was not complete agreement over whether the glorious box elm tree pictured at the head of this paragraph is a “good tree” worthy of being saved.  By now, you know my opinion on saving that glorious woody plant.