The Really Long View: City staff’s rewriting of codes concerning

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The NGL Supply Terminal Co. propane storage/transfer facility proposed for Rigby Yard in South Portland would have been rejected out of hand if it weren’t for South Portland’s shadow government.

Chapter 27, section 964, paragraph 14, of the South Portland Code of Ordinances (27-964.14) prohibits any project that would store “gas (fuel or illuminating)… in excess of ten thousand (10,000) cubic feet …” within the zoning district that includes Rigby Yard. (The prohibition applies to all of South Portland.)

NGL’s proposed terminal calls for six propane tanks each over 60,000 gallons (8,000 cubic feet), for a total of 360,000 gallons (48,125 cubic feet) of storage. That’s 38,125 cubic feet over the maximum. Only one of NGL’s tanks could be located at Rigby Yard because two tanks would be over 16,000 cubic feet of propane storage. That’s 6,000 cubic feet over the maximum. This is not difficult math.

The South Portland Code of Ordinances may not be bedside reading material, but it is not a secret code that requires translation. Anyone can read and understand 27-964.14.

27-964.14 is our longtime safeguard, offering precautionary wisdom about the dangers of pressurized explosive gas. This wisdom is branded in SoPo’s memory by the fatal explosion in 1997 in Ferry Village. That plant manufactured acetylene, which is also (thankfully) limited by the language of 27-964.14.

But instead of being dead on arrival, the NGL proposal was ushered in and pitched to the Planning Board at a workshop last February – a workshop for which there is scant official record. Board members were deliberately kept unaware of the conflict with the language of the code. These are the workings of the shadow government.

The shadow government appears when the code enforcement officer exceeds her authority as interpreter of the code and is backed by the city attorney regardless of how off-script either of them go… all at taxpayers’ expense. No one knows quite what motivates their action or what rules they follow. It’s a shadow government.

In 2009, South Portland issued a permit for two 70-foot-high vapor combustion units (VCUs) that would dominate the skyline near Bug Light Park. This set in motion the tar-sands controversy that so consumed South Portland for the past three years and that still strains the city. Planning staff never told the Planning Board that the city’s decades-old shoreland zoning prohibits construction of structures over 20 feet in height on existing piers. “Structure” is defined in zoning as “anything that is built or constructed by a person or persons.”

When it came to light that this permit constituted a breach of enforcement, the code enforcement officer invented a word, “equipment,” that does not appear in the code. She simply declared that the VCUs are “equipment” and not “structures” and are therefore not a violation.

So how did the shadow government make an end-run around the code this time? What new language did they invent?

The rationale delivered by the code enforcement officer is this: Propane is not a fuel gas (and is therefore not regulated by code).

Nevermind that propane is explicitly mentioned by name in 27-964.14 as one of the storage-limited fuel gases (except for plants for charging cylinders). Nevermind that the fire codes governed by NFPA 58 – the rulebook for transportation and storage of liquid petroleum gas – restates that propane is indeed a fuel gas. South Portland’s shadow government claims the right to invent its own rules and definitions. And you, members of the public, are kept in the dark.

A shadow government that invents code also abandons its lawful mandate to promote the “health, safety, comfort, convenience and general welfare” of the city’s inhabitants. No vision delivered by a Comprehensive Plan or rising through a committee amounts to much if our frontline defenders of the code ignore it and then invent new language to cover their tracks as they strike out into new improvisational territory.

The shadow government survives and thrives as long as it stays in the shadows. But we South Portlanders can and should demand more from our local officials. Please read 27-964 yourself, and contact Mayor Cohen and Manager Gailey with your own illumination. They are committed to transparency and will welcome your light.

Eben Rose lives in South Portland.

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