An independent consultant has determined that a proposal by the NGL Supply Terminal Co. to move its operations to the Rigby Rail Yard in South Portland would not comply with the city’s zoning rules.

But even after receiving the report from Woodward & Curran, a Portland-based engineering firm, NGL this week said it would continue to work with the city to make the $3 million project a reality.

In a statement emailed to the Current, Kevin Fitzgerald, the regional operations manager for NGL, said, “We look forward to reviewing the Woodard & Curran report and working with the city of South Portland to evaluate all potential options, including ordinance language revisions or design and location alternatives.”

Fitzgerald added that NGL has worked with federal, state and local officials “to carefully select the Rigby Yard to relocate its liquid propane terminal” from the Portland waterfront. He said NGL must relocate because of a state project to redevelop an adjacent section along Portland Harbor.

In defense of the NGL proposal to move to South Portland, Fitzgerald said, “(Our) $3 million, state-of-the-art facility is designed to safely meet the high demand for clean-burning propane at over 50,000 homes and businesses throughout the greater Portland region.”

NGL filed a site plan application in January with the South Portland Department of Planning & Development in which the company said it would like to build six, 60,000-gallon, above-ground tanks to hold liquid propane that would come in by rail and then be transferred to delivery trucks.

In addition to the new storage tanks, NGL also wants to construct an 1,800-square-foot office building, with associated parking, and put in new security fencing on nearly 10 acres in the Rigby Yard that the company would lease from the Portland Terminal Co.

The Planning Board held an initial workshop with officials from NGL in late February and that’s where the matter stood when South Portland resident and environmental activist Eben Rose first began to raise questions about whether the project is even allowed under the city’s zoning.

In early April, Rose wrote an opinion column, which was published in the Current, in which he argued NGL’s proposed project should have been “dead on arrival” because of a local ordinance that prohibits the storage of gas in excess of 10,000 cubic feet.

After City Councilor Brad Fox got involved in the controversy, formally requesting that the council provide oversight of the NGL project, city staff decided to hire Woodward & Curran to “perform an independent compliance and technical assessment of the proposed facility.”

The report by Woodward & Curran, which was delivered to the city on June 4, essentially upholds the position of Rose, Fox and others that, as proposed, the NGL project cannot move forward.

In a press release issued late last week, City Manager Jim Gailey said NGL now has two options – it could appeal the decision to the city’s Zoning Board or apply for a text change to the current zoning.

In a prior interview, Fox said he sought council action after being contacted by Rose and being convinced that NGL’s proposed project “is clearly not permitted by two sections of the city code.”

“The language in the code is straightforward. This has been the law in South Portland since 1995,” he said in late April. “There is no dispute that liquid natural gas is a petroleum-based product.”

He added, “Our codes protect our citizens and I want our city staff to follow the code of ordinances as they are written.”

However, prior to the issuance of the Woodward & Curran report, both Tex Haeuser, South Portland’s director of planning, and Pat Doucette, the city’s director of code enforcement, felt the provision of code cited by both Rose and Fox did not apply to the NGL project, since the product being stored would be “primarily in a liquid state.”

The provision of code reviewed by Woodward & Curran included Sec. 27-1517, which states that, “no new above-ground storage tanks (in excess of 25,000 gallons capacity – either individually or in the aggregate) for petroleum-based products may be erected or used on any parcel of real property in any zoning district.”

That section of code does allow the City Council to issue a waiver “in certain circumstances,” prior to Planning Board action, but even with the waiver, the code does not allow storage in excess of 50,000 gallons.

What Woodward & Curran did in its report was analyze accepted industry rules and definitions for gas and petroleum products. And its conclusion is that “NGL’s proposed propane storage and distribution facility at Rigby Yard … is prohibited.”

This week, Gailey told the Current that South Portland paid Woodward & Curran $3,200 to review the city code and its application to the NGL project.

He said the engineering firm did what it was asked, adding that from now on planning and code staff would take up to five days to determine whether a proposed project is permitted or prohibited under South Portland’s zoning rules.

Gailey said the five-day waiting period would “allow staff time to review the complexities of the code and seek outside help if needed.”

He said the city would also begin to post site plan applications to the city website, in order to provide more transparency and the chance for the public to see what projects are being proposed.

Rose feels justified by the Woodward & Curran report, but said he was thoroughly frustrated with what he called “stonewalling,” particularly from the planning and codes office, as well as “a kill-the-messenger attitude,” particularly from Mayor Linda Cohen.

“I am not happy about this whole process,” he said. And, “it’s left me wondering what would happen if we were not diligent in the first place and stuck with it as we have. What would be the status of our code enforcement in this case? What is the status of our code enforcement now? Where is the accountability?”

Rose added, “I don’t want to be that angry guy that’s always complaining, but city officials need to do their jobs. They have to be able to read and understand the code and be transparent about it.”

When contacted by the Current Tuesday, Cohen declined to comment.

Overall, Rose said the city’s response to his concerns was “certainly discouraging.”

And, while he appreciates the new way of doing business outlined by Gailey, Rose said he would like to see the planning and codes office adopt a “well-articulated, specific set of performance standards” that would provide “greater accountability and transparency.”

Rose said, “Ultimately, there were many missteps, including stonewalling, for which I do not understand the motivation. People make mistakes (and) officials can make mistakes, too. (But it) seems to me the best thing to do when that happens is to acknowledge the mistakes forthrightly and ensure that they don’t happen again.”

However, in this case, Rose said, “saving face seemed to be an overarching priority even to the point of covering up for bad calls at the expense of maintaining integrity in upholding city code.

No citizen should have to devote the energy and exposure to simply ensure that things are done the way they are supposed to be done. That’s why we have paid staff. I hope some lesson is learned and some wisdom is gained.”

However, Gailey said the planning and codes staff did do their jobs.

“Though we have recently seen a difference of opinion from Woodard & Curran, staff early on in the review had concerns and upon receiving (more) information from the applicant in early April made a determination that the project was prohibited under current ordinance.”