SOUTH PORTLAND — Measures the city hopes will withstand federal preemption – notably at Rigby Rail Yard – were approved Monday night by city councilors in a first reading of changes to the city’s fire code.
The amendments would require 1,257 feet as a minimum safe distance between any commercial liquefied petroleum gas facility and most types of public infrastructure, including municipal buildings, schools, office buildings, hospitals, churches and parks.
A second and final reading of the proposed amendments to Chapter 8 of the Fire Code and Protection Ordinance is scheduled for April 4.
Monday’s 4-3 decision – with Councilors Claude Morgan, Linda Cohen and Maxine Beecher opposed – came on the heels of NGL Supply Terminal Co.’s March 17 withdrawal of its application to build a commercial propane distribution facility.
Attorney William Dale was the primary author of the amendments vetted by the council. They originated in citizen-drafted changes first sponsored by Councilor Brad Fox and vetted by the council last December.
In the past few months, through what most councilors agreed on Monday has been a messy and confusing process, two separate sets of amendments to the city’s fire code were drafted, one by residents, and the other by city staff.
Pan Am Railways, owner and operator of Rigby Yard, is dictated by federal guidelines, which preempt local rules and regulations. Believing that the citizen-drafted ordinance overreached its jurisdiction and would put the city at risk for a lawsuit, staff drafted another ordinance.
The city’s draft was criticized by Mayor Tom Blake and Councilors Eben Rose and Fox in February. They urged the council to seek ways to block the possibility of federal preemption.
At the Feb. 1 meeting, where councilors approved a first reading of the staff-drafted document with the caveat that more changes needed to be made, city attorney Sally Daggett warned councilors more than once about taking on the railroad in a preemption case, calling the process an “uphill battle.”
A successful preemption case where a municipality comes out on top would be unprecedented, City Manager Jim Gailey said.
At the February meeting, councilors mutually agreed they would take a two-pronged approach, and draft two sets of amendments. The staff ordinance has a “logical connection to the city’s legitimate regulatory authority to protect the health, safety and welfare of its residents,” according to a Jan. 28 memo from Boston-based law firm Foley Hoag, the city’s outside legal counsel.
The citizen-initiated ordinance would include stricter standards for commercial propane development and potentially increase the risk of a lawsuit.
That set of amendments is what the council approved March 21.
The citizen amendments were revised and drafted with the help of Russell Pierce, an attorney with the Portland-based Norman, Hanson DeTroy, who called the new draft a “novel approach,” as well as “valid and regulatory.”
A key goal in protecting the city against a lawsuit is not prohibiting the use of commercial propane facilities entirely, Pierce told councilors.
“Localities do reserve some of these police powers,” he said particularly when it comes to protecting the safety of residents. But “you do not want to choose a safety distance that prohibits the activity across the jurisdiction,” because it would be viewed “probably as a backdoor zoning ban.”
Instead, and what the citizen-initiated draft does, is ensure that, no matter the safety distance, a liquefied petroleum gas facility “can still take place in this city – that’s what this (ordinance) does,” Pierce said.
Councilors sparred over the process, the level of transparency, and the level of confusion that has resulted.
“I’m just totally confused,” Councilor Linda Cohen said about how the city could end up with two “competing” ordinances.
Councilor Patti Smith agreed. “It has been super hard to follow, it’s been convoluted and weird,” she said.
As for facing a potential lawsuit head on, most councilors agreed that the possibility shouldn’t deter them from protecting the city the best way possible.
“We just want to make sure that we don’t put a dangerous propane facility next to residents’ homes,” Fox said. “That’s always what this has been about.”
Smith said she understands the reluctance and the “fear of the unknown, (but) I don’t want to create laws and ordinances with the whole factor of, ‘Oh, we might be sued – let’s avoid it. I don’t want to be ruled by (a) fear of suing. We need to go where we need to go to protect our citizens, and if we’re challenged, let’s deal with it at that time.”
But for other councilors, the fact the process has been so muddied and tangled, especially for the public, is the root of the issue.
“It’s not that I am so concerned about a lawsuit,” Councilor Claude Morgan said. “What really bothers me is this lack of due process. That’s what’s going to come and haunt us; that’s what’s eroding us right now as a council. It makes me want to hold my nose.”
The question of due process persisted throughout NGL Supply Terminal Co.’s application process, which lasted more than a year, particularly after it became known in October that Fox had attempted to sway councilors’ votes on the application via email and out of the public eye.
The council attempted to pass a moratorium on commercial propane facilities in the city earlier this year, partly in response to NGL’s application. The Planning Board rejected the council’s proposal, and the measure ultimately failed.
Following news of NGL’s withdrawal March 17, Chris Hall, chief executive of the Portland Regional Chamber, said the group is still “very concerned about the fairness of the process.”
Hall said this move “discourages” other investors from doing business with South Portland.
Gailey on Thursday disagreed.
“We’ve had a lot of criticism about being business friendly,” he said. “We’re business friendly, we only ask that you meet our current ordinances on the books.”
With the exception of the last application NGL submitted, which called for one 24,000 above-ground storage tank, none of their prior proposals complied with city code, Gailey said.
As for the difference in revenue generated that NGL would have brought to the city if their application had been approved, “when you bring new value to your city, you’re bringing more money,” Gailey said. While a goal can always be to build the city’s valuation because new development offsets the tax rate increase, he said, other factors contribute to the value as much as the financial gain.
The safety risks to citizens because of this infrastructure are “not as positive for South Portland,” but having the facility would have benefited the region, for distribution purposes.
The same can be said of the whole of the local petroleum industry, he said.
At a Monday, March 21, meeting, South Portland City Councilors approved a first reading of changes to the city’s fire code, which would tigthen restrictions for commercial liquefied petroleum gas distribution facilities in places like Rigby Rail Yard.