A long-established family business in Gardiner, Kimlin Energy Services, has run afoul of town officials by forging ahead with site expansions and improvements before obtaining permits to do so. Responding to noise and other complaints by neighbors of the propane storage and distribution facility on Steve’s Lane, Gardiner’s town planning board came down hard on the company at their May 19 meeting, even raising the prospect that previous site-plan approvals could be revoked.
Founded as Kimlin Propane by Douglas Kimlin in 1982, the firm now services customers in seven counties with his grandson Max Kimlin as president. The company was represented at the virtual meeting by attorney Jennifer Gray of Keane & Beane, PC, Patty Brooks of Brooks & Brooks Land Surveyors, PC, and engineer Andy Willingham.
Citing a 2014 approval by the town of a plan to move Kimlin’s customer parking outside an existing fenced-in area “for safety,” Brooks explained that the company’s pending application to expand the parking lot and create a new truck exit on the westerly side was intended to create “a more efficient and orderly site” in terms of ingress, egress and circulation. The new plan also calls for replacement of an 18,000-gallon propane storage tank with a 32,000-gallon tank, which Brooks said was necessary because demand was increasing.
The site had passed a percolation test needed to move its septic system from the southwest to the northwest corner, Willingham added. Brooks acknowledged that an earthen berm, intended for noise reduction, had been built in 2009 on land belonging to the Wallkill Valley rail-trail, and said that part of the new plan was to reposition it onto Kimlin property.
Planning board chair Paul Colucci, who lives nearby the site, wasn’t buying the explanations for an urgent need to move ahead before the new site plan was approved. Stating his intent to “stop the unruly lawlessness that has been going on since I don’t know when,” he accused the applicant of never having shown up at the meeting at which the plan was supposed to be considered and of having “commenced with improvements” without permission.
This had gone on, Colucci said, despite multiple visits by Gardiner’s code enforcement officer to deliver stop-work orders. Kimlin had exhibited “blatant disregard for the town code, not to mention blatant disregard for the neighborhood,” according to the chair.
“Reckless behavior”
From his personal observations and the feedback he got from other Gardinerites, Colucci said, the single biggest ongoing problem with the Kimlin site has been noise, with truck deliveries regularly occurring late at night in defiance of the town’s noise ordinance. “My phone and computer have practically crashed today,” he said, “overloaded with public comment from neighbors on this application. There’s an uproar that this applicant is going to be expanding.”
Several other members of the planning board joined in on the censure. “We see how the reckless behavior of the applicant has undercut the process,” said Ray Sokolov. Calling the situation “somewhat disturbing,” Josh Verleun questioned whether there had already been some “unauthorized filling of wetlands” adjacent to the site.
“In all my years on this board, I’ve never met someone who has such blatant disregard for local law and public responsibility as this applicant,” declared Keith Libolt. He referenced an incident in which Kimlin had failed to rectify an “emergency warning system [that] was completely inoperative,” in violation of federal regulations for fuel-storage facilities.
The board’s consulting attorney, Kristin Pratt of Young Sommer, LLC, read a memorandum from Andrew Millspaugh of Sterling Environmental Engineering, PC, summarizing his review of the environmental assessment form (EAF) accompanying the application for an expansion that Kimlin submitted in August 2019. Among the concerns that the environmental consultant cited were possible stream disturbance, encroachment on federally designated wetlands, and impacts on possible habitat for the endangered bog turtle.
Application deemed incomplete
The list of permits from county, state and federal agencies needed for the work to go forward was substantial. “This application is going to be deemed incomplete and not advance any further until they are obtained,” Pratt stated.
Millspaugh’s list of recommendations included site inspections, a noise study, and an updated site plan. He urged the planning board to obtain proposals from at least two bidders and hire an “independent third-party with specific experience in bulk-propane storage facility compliance” with federal laws regulating such businesses. Colucci agreed that it would not be adequate to rely on the applicant’s own consultant, Hiltz Propane Systems, to review such compliance.
“This is not the time for an expansion,” argued board member Carol Richman. “So far they’re not even in compliance with local law and their permit.” She suggested a “bifurcated” approach, in which the board would ensure compliance with the terms of previous permits before even considering allowing additional changes to be made. “Let’s see if the public can be happy as their neighbors.”
Richman noted that the town code provisions for “Implementation, Enforcement and Revision of Proposed Site Plans” conferred the power of revocation of previously issued permits in cases where an applicant has overstepped the bounds of what was approved: “A site-plan approval may be revoked by the planning board that approved it if the permittee violates the conditions of the site plan approval or engages in any construction or alteration not authorized by the site-plan approval.” Her goal, Richman said, was not to force Kimlin to dismantle work already done without a permit, but simply to bring the firm into full compliance.
Colucci agreed, and called for a site visit by the planning board and the code enforcement officer on May 22 to determine the current state of redevelopment. “It’s time that your client is aware that this is not the wild, wild West,” he warned the Kimlin representatives in attendance. “Your [2014] approval may be revoked. Take back this message to your client. Bring them back to Section 220.68E.”
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