When Chris Brody, president of Propane Depot in Westhampton Beach, went into contract to buy a parcel of land on Old Depot Road in Quogue, he thought he had the Village’s blessing to expand his distribution capabilities by burying three 30,000-gallon propane storage tanks under the property.
But after Brody spent an estimated $150,000 to satisfy labyrinthine planning and paperwork requirements, his project appears to have been permanently shut down.
In what Brody views as an unfair decision, in mid-February, the Quogue Village Board of Trustees passed a series of amendments to an existing Village law which functionally prohibited his project from moving forward.
Acknowledging that he won’t be able to create the storage facility in Quogue as he planned, Brody said he is preparing to sue the Village for as-yet unspecified damages. He also noted that he would likely cancel his intended purchase of the Old Depot Road property.
Brody claims that the board had a sudden change of heart after all but greenlighting his plans.
“Initially, no one in Quogue had any concern,” he said. “I have an email from the Planning Board to the Mayor saying not one person on the Planning Board had an objection – and the building inspector was totally for it. So, who had an objection? I can’t really figure this out.
The amendments to the law codified energy storage policy in the Village, including requirements and prohibitions for battery energy storage systems, solar panel arrays and legacy fuel sources such as propane, natural gas, oil and coal.
To an existing ban on storage of gasoline, oil or coal for wholesale purposes within the Village, the amendment extended the ban to storage for retail use and added natural gas, propane, firewood or other bulk fuel storage to the list of prohibited substances.
The addition of a retail prohibition is directly relevant to Brody because his project was intended to facilitate retail propane distribution to his Long Island customers. Under the updated law, bulk propane storage for retail use – i.e., Brody’s business – is specifically prohibited.
The amendment also attempted to reclassify as a nuisance industry any business that utilizes “the bulk storage of fuel or flammable materials in any form in excess of 2,000 gallons, except the storage of fuel used on-site in conjunction with heating or use of the building.” Again, that aspect of the proposed amendment would have specifically banned Brody’s project anywhere in the Village.
Brody filed what’s known as an Article 78 proceeding in New York State Supreme Court, legally challenging the board’s decision to classify his proposed underground bulk propane storage tanks as a nuisance industry use.
His filing was successful. The Court overturned the Village of Quogue’s nuisance designation as it related to Brody’s business.
Brody won that battle, but lost the larger war.
The board acknowledged the Article 78 decision and was compelled to remove the nuisance industry designation from Brody’s business. However, the board passed the amended law as proposed, which contains other provisions unrelated to the nuisance designation that functionally bar Brody from burying his tanks.
Calling the board’s decision “arbitrary, capricious and unlawful” and claiming the ruling exceeded the board’s lawful jurisdiction, Brody’s Article 78 filing lays out his argument in minute detail. It includes a combination of facts, legal interpretations and theories as to why, in Brody’s view, the Trustees had a change of heart about his project.
For example, the filing claims that the Village may be deliberately trying to legally terminate Brody’s project in order to assuage the not-in-my-backyard (NIMBY) concerns of some Village residents and stakeholders.
The claim also theorizes that the Village might be attempting to prohibit Brody’s project to ensure that an adjoining plot of land is available for development of battery energy storage systems (BESS). BESS developers are known to sometimes pay above-market rates for land use.
Brody adds that in addition to functionally disallowing bulk propane storage in the Village, the proposed amendments to the law permit BESS development of systems with an aggregate energy capacity less than or equal to 600 kWh (kilowatt hours) as a special exception use when authorized by the Board of Trustees.
In essence, he said, lower power battery storage systems will be permitted in some cases while bulk propane storage will be prohibited in all cases.
At the January meeting, Brody presented his case to Quogue Village Mayor Robert Treuhold and three of the four sitting board members. Trustee Randy Cardo, who owns property adjacent to the plot Brody was attempting to purchase for propane storage, chose to recuse himself from the proceedings to avoid the appearance of a conflict of interest.
While he appeared at least somewhat receptive to Brody’s arguments at the meeting, the Mayor didn’t comment on the specifics of the project or the facts as Brody presented them. And he spelled out the board’s position very clearly.
“The Trustees believe that the law that was adopted in 1945 prohibited all storage of gas, oil, coal and other commodities,” Treuhold said. “We believe that the existing law was clear… For the avoidance of doubt, we intended this [amendment] to clarify that the bulk storage – retail or wholesale distribution of fuel in any form – is prohibited in the Village.”
At the February 14th meeting, before the board ultimately voted to pass the amendments, the Mayor addressed Brody’s arguments more directly.
“This board acknowledges some of the points that Mr. Brody and his expert have raised – that propane is generally considered to be a safe source of fuel and in fact is widely used throughout the Village,” Treuhold said. “Even if there are all the safety protections put in place that Mr. Brody has put forward, the potential for a disaster, even if the risk is small, is such that the Trustees believe that we should move ahead to adopt the proposed legislation because we believe sincerely and strongly that it is in the best interests of the Village and its residents.”
Citing a propane gas leak in Shirley from a 30,000-gallon underground tank –the same size as Brody’s proposed tanks – that took place in 2011 and required an evacuation of some 3,000 people from over 900 homes, Treuhold added, “Our Fire Chief and Fire Marshall expressed the Department’s deep concern over the increased burden that would be placed on the Department, both in terms of training and in terms of the potential exposure, if God forbid, there were an accident.”
As we went to press, Brody said that he fully intends to sue the Village to recoup his expenses and for damage to his business. He also contemplated but ultimately rejected the possibility of attempting to get a New York State Court to reverse the Village’s prohibition of his project in its entirety.
“I believe I could win, and I believe I would get approval to build,” he says. “The courts would not let them get away with what they did. But my business has suffered enough. I don’t have the time to wait a year or two to get that approval.”
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