SOUTH PORTLAND — The city will seek a third-party interpretation of the zoning ordinance governing a proposal for a liquid petroleum gas storage facility at Rigby Rail Yard.
In an email sent to city councilors Tuesday evening, City Manager Jim Gailey said “the Code Officer’s interpretation about a month ago has led to questions being raised and whether the proposed NGL terminal is allowed by Ordinance.”
NGL Supply Terminal, a Tulsa-based subsidiary of NGL Energy Partners LP, wants to install six 60,000-gallon above-ground tanks to store liquid petroleum, or a total of 360,000 gallons.
The ordinance defines liquid petroleum as any material that’s composed “predominantly” of hydrocarbons, including “propane, propylene, butane and butylene.”
The proposal has been criticized by some who claim it disregards the city’s zoning ordinance, which explicitly prohibits the storage of fuel or illuminating gas “in excess of 10,000 cubic feet.”
The city’s allowances for handling and storing petroleum products still forbids the storage of more than 25,000 gallons in “new above-ground storage tanks.”
The City Council can, however, grant a waiver that would allow the storage of more than 25,000 gallons in above-ground tanks. But even a waiver prohibits the storage of more than 50,000 gallons.
NGL’s proposal calls for at least five times the allowed capacity.
The initial interpretation of the city code was made by Code Enforcement Director Pat Doucette, who said the section of code in question dates back to 1975.
In mid-April, Doucette called it “poorly written” and “wordy and somewhat convoluted.”
Doucette’s interpretation of the zoning code was then backed by Deputy Fire Chief Miles Haskill; Tex Haeuser, the deputy planning and development director, and City Attorney Sally Daggett.
In early April, the city asked NGL to revise its proposal and gave the company a set of options, including drafting an addendum text amendment to the Code of Ordinances; requesting a waiver of the 25,000-gallon limit from the City Council, and applying for a federal interstate commerce exemption to the city’s zoning requirements with Pan Am Railways, which owns Rigby Rail Yard.
In the email sent Tuesday, Gailey told councilors NGL has expressed interest in a zoning amendment, and city staff are seeking a third opinion on whether the proposed use, even with an addendum, would be allowed under the ordinance.
“I think it was the … ongoing question of whether the interpretation was following the intent of that section,” Gailey said by phone Wednesday.
No one specifically pressured staff to seek an outside opinion, he said, “but the questioning from the community and others, and I think in fairness to the community and the applicant, we need to take a look at it and make sure that the interpretation is correct, and that’s why we’re pursuing it.”
If NGL responds with a text addendum, it wouldn’t necessarily be creating new language, but amending current ordinance language, which further necessitates the need to expediently find an outside expert perspective, Gailey said.
“Knowing that the applicant is contemplating a text change, now is the time to do this before a process starts and we need to rewind or the process gets messy,” he said. “I think that’s only fair to the community, fair to the applicant and allows no uncertainty if the applicant submits a zoning change.”
Councilor Brad Fox, who disagreed with Doucette’s initial interpretation, said he is glad city staff are seeking outside input.
“I have high hopes that issues about what our city code says will be resolved,” Fox said in an email Wednesday morning.
“I’ve always been concerned with the code enforcement officer’s reading of our Ordinance 14, as they call it,” Fox said. “I think having an expert review it will resolve the misreading.”
Gailey said city staff will begin researching possible third-party opinions this week.
“We don’t want to drag our feet,” he said.