July 8, 2019
The failure to provide continuous fuel sales and the lack of a necessary license show that allowing the former Tumbleweed Express gas station to re-open is contrary to Albany County’s zoning laws, according to Albany County Clean Water Advocates (ACCWA).
“We are about to have 33,000 gallons of fuel placed on top of one of the most fragile parts of the aquifer that provides drinking water to the vast majority of Albany County residents,” said Martin Greller, ACCWA president. “We all are anxious to know why the county is not addressing this threat, when the purpose of the 2003 Aquifer Protection Overlay Zone was to provide such protection.”
Greller noted that gas stations now are prohibited in the aquifer protection zone. “Tumbleweed’s new owners claim that the station is grandfathered – that is, the station was in operation when the aquifer protection zone was established, and has been in continuous operation ever since – but public documents show otherwise.”
“To maintain its grandfathered status, the gas station has to remain in active and continuous operation,” Greller said. “Tumbleweed’s own reports show that it has not been in continuous operation as a gas station for at least the last four years.”
ACCWA’s research shows that during the last four years, Tumbleweed did not sell fuel for at least five months in each year, and none in 2018. Even more striking are the amounts of fuel dispensed. An average gas station sells something like 4,000 gallons a day, whereas Tumbleweed sold less than this amount in most of the months that it sold gas at all.
“Whatever business was being operated during this period, it was certainly something other than a normal gas station. It did not feature the selling of much gas,” said Greller. “So, if there were a use to be grandfathered, it would be one that involved very limited distribution of fuel.”
“What’s more, the station did not have a weights and measures license for its fuel pumps as required by state law from March 2009 to January 2018,” Greller said. “This means that even if Tumbleweed’s sales of fuel had been continuous, all of its fuel sales were unlicensed. I think most people would agree that if you’re trying to prove a business should be grandfathered based on its continuous operation, that operation must at least have been legal.”
“When the county learned that the facility was being renovated by a new owner and these new owners paid no attention to a cease and desist order, the county went to court to seek an
injunction. However, they backed off.” Greller speculated that the reason the county did so was the threat of a “takings” lawsuit from Tumbleweed’s attorneys.
“The threatened lawsuit is purely intimidation,” Greller said. “Basically, their threat says the U.S. Constitution prohibits zoning. If that were true, there would be no zoning in the entire United States. Clearly that isn’t the case.”
“However, the new owners showed their hand when they filed the suit, claiming $2.3 million in damages,” said Greller. “Whatever their plans, the size of a business that could experience $2.3 million in damages is well beyond the scope of a normal gas station and certainly vastly greater than that of the Tumbleweed over the last four years.”
“The county started down the right road in enforcing its zoning against the former Tumbleweed,” said Greller. “Let’s get back on that road.”
ACCWA will have a booth at the Freedom Has A Birthday celebration in Washington Park on July 4. Additional information on the aquifer can be found on ACCWA’s website at albanycountycleanwateradvocates.org.