South Portland councilor wants do-over on vote against propane storage moratorium

SOUTH PORTLAND — A councilor who said he mistakenly voted against a six-month moratorium on a liquefied petroleum gas storage facility plans to revisit the issue at the next council meeting.

Councilor Eben Rose seconded a motion by Councilor Brad Fox to indefinitely postpone the moratorium at the Dec. 9 meeting. Rose on Wednesday it was a mistake he will try to correct Dec. 21, when he will move to reconsider the issue.

Rose, who was on the prevailing side of the 4-3 vote against the moratorium, said he was “profoundly hard of hearing” during the meeting due to illness, which later turned out to be pneumonia.

To help his ability to hear, Rose wore amplifying headphones during the meeting.

“That night was so confusing for me because I didn’t know what Brad’s intentions were,” Rose said Wednesday.

Recalling the sequence of events at the meeting, Mayor Tom Blake on Monday said “I feel we owe the people an apology.”

On Thursday morning, after Rose had announced he would move to reconsider, Blake said, “I think the important thing is he admits he made a mistake.”

When the council votes to postpone indefinitely, that item cannot be discussed again for 12 months. The only exception is when a motion to reconsider is made at the next regularly scheduled meeting by a councilor who voted in the majority.

Rose needs four votes in order to have the moratorium reconsidered, and said, “I feel confident I can get those four votes.”

Councilors Claude Morgan, Linda Cohen, Maxine Beecher, and Rose voted to postpone indefinitely on Dec. 9; Mayor Tom Blake and Councilors Patti Smith and Fox voted against indefinite postponement.

Morgan on Thursday said he has no idea how the council will vote on a motion to reconsider, but he will “absolutely” vote against it. Cohen also said Thursday morning that supports “killing the idea of a moratorium.”

If Rose’s motion to reconsider is approved, the council will be faced again with Fox’s motion to indefinitely postpone a moratorium. Depending on whether the motion to reconsider is withdrawn or altered to postpone the issue to a specific date rather than indefinitely, the council would then have a preliminary vote on whether to enact a moratorium.

“Fox either needs to withdraw the motion or change it,” City Manager Jim Gailey said Wednesday. If the motion to postpone is withdrawn and the council approves a first reading, the proposal will be sent to the Planning Board for approval and then back to the council for a second reading, Gailey said.

A moratorium must be approved by a two-thirds majority vote in the second reading.

If the council reverses itself and approves a first reading of a moratorium, NGL Supply Terminal Co.’s application to construct a $3 million propane storage facility at Rigby Yard, which the Planning and Development Department said this week is complete and ready to be vetted by the Planning Board, would be halted.

The debate over the proposal has been amplified by Fox’s use of a private email account to deliberate and discuss the proposal and his staunch opposition to it.

In response, NGL attorneys filed a Freedom of Access Act request last week seeking “all public records that are in possession, custody or control of the city, including any city official, elected official, employee, agent, or representative, wherever the materials are located, relating in any way to NGL’s proposal to relocate a terminal in Rigby Yard.”

The request includes communication “in whatever documentary form,” electronic or otherwise.

In a press release, NGL representatives said “we are increasingly concerned that Councilor Fox, and potentially other councilors, are actively engaged in subverting an open and transparent Planning Board review process before that process has even begun.”

The South Portland-Cape Elizabeth Chamber of Commerce Board of Directors issued a release Wednesday stating their opposition to a moratorium or the council’s decision to enact amendments to the city’s fire code that would potentially block NGL’s application.

The board “voted to oppose any efforts to modify the City’s fire code or pursue a moratorium with the intended effect of prohibiting the proposed storage depot.”

The City Council is slated to discuss amendments to the fire code at a Dec. 28 workshop.

The proposed amendments to Chapter 8 of the code, proposed by Fox, would implement more stipulations on the handling and storage of liquefied petroleum gas.

“This project should be considered on its own merits, pursuant to existing laws, ordinances and municipal processes,” the Chamber said.

The Chamber also encouraged the city to “permit this business proposal, as well as future proposals, to proceed as regulated by then-existing ordinances and planning processes. Such continuity encourages business growth, economic development and continued prosperity in our region, while also ensuring an efficient process that nevertheless takes into account the health, safety and welfare of the City’s citizens.”

Rose, in addition to moving to reconsider the council vote, said he wants to read a section from the city’s code of ordinances about the storage of fuel or illuminating gas in order to “highlight the misstep from our code enforcement officer.”

“If it’s a due process issue that NGL is going to bring up, ultimately it comes to what was the first act that escalated this?” he said, adding that it will require venturing back to the very beginning and Code Enforcement Officer Pat Doucette’s interpretation of the city’s code.

Morgan said he thinks accidentally shelving the moratorium and the attempt to undo that misstep “seriously undermines the credibility of the council or councilor judgments.”

“I would hope that other councilors would recognize that there is an erosion of confidence in the public, and a councilor shot himself in the foot at the last meeting and now he wants a do-over,” Morgan said.

“This is driving us deep into territory where we’re facing a lawsuit, and this is just another example of our march into folly.”