LARAMIE – The attorney representing the owners of Tumbleweed Express gas station on Laramie’s east side says the re-construction work at the station is basically complete, and an opening is planned soon.

Jason Tangeman of the law firm Nicholas & Tangeman, LLC in Laramie, told in a phone interview Wednesday that the 90-day moratorium formalized by Albany County Commissioners on June 11 had no bearing on the progress of the work, “because we were grandfathered in.” photo/Tom Kocal photo/Tom Kocal

He said as far as he knew, no formal opening date has been set, “but it should be opening soon.”

But the Albany County Clean Water Advocates, in a press release, said 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.

“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.”

On April 23, Albany County Attorney Peggy Trent did file a request for a court order to block construction work by Tumbleweed Express that Trent initially alleged was a threat to the Casper Aquifer. The gas station has only been open intermittently during the last decade.

But on June 11 at a special county meeting, Trent dropped the request for an injunction after concluding that Albany County’s regulations didn’t provide enough legal backing to stop the gas station’s renovations and sale of gas.

At the June 11 meeting, commissioners formalized a 90-day moratorium on development in the aquifer protection zone. Trent said that the possibility of future expansion plans by Tumbleweed Express was part of the reason for the moratorium.

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 active and in 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 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, according to the press release.

“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 use to be grandfathered, it would be one that involved a 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.”

Tangeman disputed that assessment, saying the claim that the facility was unlicensed was alleged in the county lawsuit that was dropped in June.

“Whether or not you have a weights and measures license – a $50 license – has no bearing on whether you are actually selling gas and in operation. The weights and measures license simply guarantees you’re getting a properly measured gallon of gas. The tanks were always certified and licensed,” Tangeman said.

“The county attorney actually subpoenaed Wyoming Dept. of Transportation for fuel sales tax records, and pursuant to the documents that the county received, they can see that, in fact, there had been continuous operation – meaning the sale of gas – over the last 20-30 years,” Tangeman said.

“We were grandfathered in. The previous owners paid their sales tax, their licenses and certification were all up to snuff in regards to the tanks, so they are a grandfathered use. The question of whether you may not have some other kind of license is irrelevant to the question of whether you’re grandfathered in or not. You could say that, but the weights and measures license is a certification on the pump. It makes sure the pump is calibrated properly.”

Tangeman said there was “way more to the story why they may not have the license for a period of time, but it doesn’t prevent you from selling gas.”

“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,” said Greller.

Greller speculated that the reason the county did so was the threat of a “takings” lawsuit from Tumbleweed’s attorneys. Regulatory taking is a situation in which a government regulation allegedly limits the uses of private property to such a degree that the regulation effectively deprives the property owners of economically reasonable use or value of their property.

“The threatened lawsuit is pure 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.

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