It's the Process, Stupid!

August 6, 2015

This post originally appeared on CBI Founder and Chief Knowledge Officer Larry Susskind's blog, The Consensus Building Approach.

For part of every year, I live in the most libertarian state in America. My family and I have spent our summers and winter vacations in the same small cabin on a lake for more than 25 years. The town we live in has about 1350 residents (about 900 of whom are 18 or older). It spreads out over about 30 square miles. There is a state road running through the town that is zoned for commercial use; otherwise, the town, in its master plan has chosen to ban heavy industry (particularly oil and gas distribution centers and junk yards). So, the town doesn't offer many jobs and most people commute to work. The several lakes in the town and beautiful New England setting attract a lot of out-of-towners and vacationers. Right now, the residents are up-in-arms because the town has approved construction of an oil and gas distribution center in the commercial zone.  The site in question is in a 100 year flood zone, in a wetland and over an aquifer recharge area.

The story of how the project was approved is worth telling because it underscores, even in a state that is strongly anti-government, that people don't like it when someone, however well established in town, plays fast and loose with the rules of the game.  The landowner of the site got himself appointed head of the local Zoning Board. The Board heard the applicant's request for a zoning variance (making an exception and allowing heavy industry in a commercial zone) at a meeting when the public was not present. (The public wasn't present because notice of the meeting was placed in a newspaper in the state capital 30 miles away. Less than 1% of the town subscribes to that paper.)  At the meeting, the chair of the Board stepped down for a few minutes, recused himself, walked around to the other side of the microphone and presented his request for a variance.  During the discussion (with no legal counsel present), he advised his fellow Board members that they were empowered to grant the variance, and that's what they did. Almost all were newly appointed. (One member, in private conversation, indicated that he felt pressured to go along.)  The minutes of the meeting (again, which almost nobody knew about) were not posted in the town hall until AFTER the 30 day period for a legal appeal of the variance had passed.

Next, the site plan for the new oil and gas distribution center went to the Planning Board. The Planning Board held an extended public hearing that stretched over several evenings and several weeks. The professionals hired by the applicant offered a detailed site plan.  Strong concern was registered by nearby residents (who had not received any notice of the request for the zoning variance because the land owner kept a small strip of land between the proposed project (which was now in the the hands of the oil and gas company) and the neighbors. Thus, technically, they were not abutters. The way the Planning Board operates in this state, since it made up of citizen volunteers and has no professional staff of its own, is to rely on what the applicant submits.  When concerned citizens pointed out that even a small leak could spill across the road into the nearby brook and contaminate two of the lakes in the town, the applicant's engineer assured the Planning Board that the containment plan they had in mind wouldn't allow this to happen. When residents complained that
the whole facility was in violation of the town master plan (which clearly excludes heavy industry), the applicant's lawyer pointed out that the Zoning Board had granted them a variance. When residents raised concerns that the volunteer fire department did not have the necessary equipment or training to deal with a propane or fuel oil fire, the specialist hired by the applicant explained that their leak detection and containment system would head off any such problems.  The Planning Board didn't buy this, so the applicant offered to pay for new equipment and training for the local fire department. When other critics of the project pointed to sink holes that had already formed on the site (because so much of the soil was disturbed when the site was excavated and regraded), the applicant's engineers said they would put the tanks on concrete pads.  When still others pointed out that the site is in a seismically-active area and the pads (and tanks) might crack, the engineer said that they weren't required to make the facility earthquake-proof. 

The town by-law only requires a drainage plan sufficient to deal with a 10 year flood. An engineer hired by concerned "abutters" said that a 100 year flood analysis would make more sense.  When citizens at the hearing pointed out that very large tanker trucks would be heading to the site at least three times a day and turning off a highway (with a 55 mile an hour speed limit and a passing lane coming from the other direction), the applicant said that they had already received approval from the state highway department. When neighbors asked for trees to hide the tanks from the highway, the project developer indicated, at first, that wouldn't be possible because the police and fire chiefs needed to be able to see the tanks from the road to ensure security. (They later backed off this claim and agreed to add a visual barrier.) When residents asked that the Planning Board require the site owner to carry insurance sufficient to cover any and all costs of accidents and leaks, the Planning Board claimed that it was not empowered to do this. The back-and-forth continued for many hours. Some residents had done their homework and discovered that the applicant had similar facilities at several other sites that had been the target of state and federal enforcement actions. The Planning Board ruled such comments out of order, claiming they were only entitled to look at the details of the site plan.  Eventually, the Planning Board was caught in the middle between friends of the applicant and angry opponents. The town Board of Selectmen indicated that there was nothing they could do because the project was in the hands of the Zoning Board and the Planning Board.

It took only a few weeks for a petition to the state Attorney General asking for an investigation to gain almost 300 signatures (about 1/3 of the adults in town). The Attorney General, though, will probably find that the Zoning Board followed the letter of law.  It seems the rules regarding public notice and recusal of officials are pretty vague. The Planning Board's final approval is likely to be tied up in court for the next several years. How is it possible for a Planning Board to protect the public health, safety and welfare (to say nothing of the ecosystems involved) if it has no independent environmental impact assessment or risk assessment to work from, even for one of the riskiest projects in the town's recent history? How can it be OK for a landowner to take his request for a project that is clearly barred by the town master plan (as well as by a plebiscite when the master plan was updated) to a Board that he heads? How is it possible for public notice requirements to permit no notice to nearby landowners and no posting of the minutes of a Board meeting within the period in which residents are allowed to appeal such a decision?

What's interesting is that signs have started to sprout all over town saying "No Tanks."  Residents in this libertarian state are looking to their local officials to "do something" about the threat posed by the project. Other commercial interests along the state road are worried that heavy industry in the commercial zone may pose risks to them and adversely affects the business climate. The state-wide daily newspaper has begun to cover the story, indicating that such manipulation of local boards is not in the best interests of the state. Even if the courts uphold both the Zoning and Planning Board decisions, residents won't forget what happened. I doubt the oil and gas distribution company will have very many local customers. In the end, even if the letter of the law is followed, but the spirt of the law and basic fairness to neighbors are violated, everybody loses.  Opponents will face ongoing and unnecessary risks (and loss of property values), while proponents will besmirch their good name, lose market share, set a troublesome precedent and face extended legal fees.

Better for local governments, even in a libertarian state, to set and follow clearer and more sensible ground rules. And then, everyone needs to abide by the process. 

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