Board finds tank proposal unsafe, too noisy
SEARSPORT — In the first night of Planning Board deliberations aimed at deciding whether to deny or approve an application for a 22.7 million gallon liquefied petroleum gas storage tank at Mack Point, the proposed project hit a snag.
Just before the Searsport Planning Board wrapped up its deliberations Wednesday night, March 27, the board took two votes in relation to how the proposal from Colorado-based DCP Midstream fits the town Land Use Ordinance, the board made two unanimous decisions — one stating the buildings and structures proposed for the industrial zone were permitted uses under the ordinance, but that portions of the project proposed for the neighboring commercial district were not.
Thanks But No Tank attorney Steve Hinchman addresses the Searsport Planning Board Wednesday night, March 27. At right is Anglers Restaurant attorney Ed Bearor.
Members of the audience appeared stunned by the finding — Searsport resident David Italiaander was one of them.
"They just voted this down," he said.
But earlier in the deliberations, Searsport Planning Board attorney Kristin Collins said even if the board finds reason to deny the application at any point in the process, the board must still complete the entire deliberation process.
"It could be overturned," said Collins.
Planning Board Member Lee Ann Horowitz expressed concern that the board may not be qualified to make a decision on such an involved proposal that has included briefs and testimony from attorneys for the applicant and project opponents, all of which offer the board very different interpretations of the project as it relates to town ordinances.
"I think this is way out of our league," Horowitz said. Horowitz went on to be the one vote against the motion stating the board has jurisdiction to consider the project.
"This is going to get challenged further," said Planning Board Chairman Bruce Probert.
"You've got to take a stab at it so someone else can tell us we're wrong," said Collins.
After the board votes on the rest of the standards set forth in the town’s land use ordinance, the board will move on to consider the merits of the project based on specifications in the site planning and shoreland zoning ordinances, Probert said. The final decision to either approve or deny the application will be made based on the consideration of those ordinances as well as the 18 performance standards the board must consider as they relate to the proposal, which address every aspect of the project from its impacts on air quality, and preserving and enhancing the landscape to lighting and visual buffering.
The first 90 minutes of the deliberations included oral arguments from interested parties, including James Kilbreth, attorney for DCP Midstream, Steve Hinchman, attorney for the opposition group Thanks But No Tank, Italiaander, who spoke about the market conditions for propane and suggested the project would likely be used as an export facility, and Ed Bearor, attorney for Anglers Restaurant.
March 28 deliberations
The meeting resumed Thursday, March 28, as planning board members resumed assessing whether the proposed LPG tank application meets the standards for the town’s land use ordinance.
Deliberations began with board members assessing whether DCP’s tank application met the standards for minimum lot size for commercial and industrial zones, property set back lines and road frontage. Board members voted 5-0 that those standards were met.
However, board members raised concerns with a number of the other standards including whether the project is in conformity with the town’s comprehensive plan.
Board member Mark Bradstreet questioned whether two votes could be taken on the issue: one vote for whether the project meets the standard for complying with the comprehensive plan in the commercial zone and a separate vote for whether it meets the standard in the industrial zone.
The motion to vote on each zone separately was approved before a motion was made that the application does not meet the standard for the commercial zone. Board members noted the fact that there are industrial uses — administrative office building, access road, fire water tank and pump— sited within the commercial zone.
A motion stating the application did not comply with the town’s comprehensive plan for the commercial zone was approved by a vote of 5-0.
The motion that the project does comply with the town’s comprehensive plan within the industrial zone was approved by a vote of 5-0.
Two issues were raised under performance standards regarding vibration and noise.
Under the land use ordinance, with the exception of vibration occurring during the construction or demolition of a building, the vibration will not be transmitted outside the lot where it originates.
As discussion began regarding whether there would be an issue of vibration being transmitted off of the property, board members questioned how to assess any potential impact. Without a study from the town, board members said they would have to rely on DCP’s application, which states there will be no vibration transmitted outside the lot, in order to rule on whether the application meets the standard.
The board eventually voted 5-0 that the standard was met before tackling the issue of “offensive noise.”
The land use ordinance states that no offensive noise will be transmitted beyond lot lines that would cause an unreasonable disturbance to neighboring residential properties.
That issue of “unreasonable” noise was questioned by board members who asked how to define what “unreasonable” would mean.
Collins explained that unreasonable noise could be considered noise that would result in complaints from neighbors; at which point Bradstreet pointed out that trucks waiting in the queue line at the facility could disturb neighbors.
Board member Brian Callahan made a motion that the application did not meet the noise standard, citing the fact he did not feel there was adequate buffering, especially where trucks would queue up, to mitigate noise.
He suggested the most effective barrier to mitigate noise would be to build a fence similar to the ones used on highways to reduce vehicle noise to nearby neighborhoods. However, Callahan was not in favor of such a fence saying they “look like hell.”
Board member George Kerper and Probert added that there were other noise issues to consider with the project in regards to use of the flare and whether the facility doors would be open in the summer, which could generate additional noise. It was also noted that weather conditions, like wind, could carry noise to nearby residences.
The board eventually passed a motion that the noise standard was not met based on concerns regarding truck noise, the flare, noise from the facility, weather conditions and the fact that a buffer cannot be put across the facility access road to mitigate any noise.
That motion passed by a vote of 5-0.
The final portion of the application the Board found objectionable Thursday was whether the project would result in unsafe or unhealthful conditions. Safety has consistently been an issue raised by board members and the general public throughout the course of the public hearings held in regards to the project.
While Bradstreet acknowledged the application meets the technical standards of the land use ordinance, he said the project is unsafe because it is too close to residences.
Probert agreed and said he was concerned with the blast zone radius if the tank were to ignite and that while the risk was low of a catastrophic event occurring the “consequence is tremendously high.”
Board members approved a motion that the application does not meet the standard for not creating unsafe and unhealthful conditions by a vote of 5-0.
Following the meeting, DCP spokeswoman Roz Elliott said in an email to The Republican Journal said that the company is “disappointed” by the board’s initial rulings, but will wait for the deliberations to conclude.
“We will await the remainder of the deliberations and then evaluate our options,” Elliott said in the email.
Members of the opposition group “Thanks, But No Tank,” were pleased with the outcome of Thursday night’s deliberations stating in a press release “unlike questions of zoning, nothing can be done at any town meeting (or anywhere else) that can change these findings on noise and safe and unhealthful standards. This is all good news, in fact virtually unthinkable at the beginning of the week.”
The planning board deliberations will continue Wednesday, April 3, at 6:30 p.m. at Union Hall in Searsport.