Posted by: David Giacalone | August 23, 2012

appellate court says neighbors waited too long to challenge the giant Duanesburg propane tank

  update (November 29, 2012):  Today, the New York State Court of Appeals, the highest court in the State, denied the Miners’ motion for “leave to appeal” the decision of the Appellate Division. (Motion No. 2012-1042) The Court states at its website that denial of leave to appeal should not be construed as an opinion on the merits of the case. There are no further steps that Bill and Cyndi Miner can take, and the lawsuit is over.

  The Third Department appellate division issued its decision today (Aug. 23, 2012) affirming the lower court’s dismissal of Bill and Cyndi Miner’s lawsuit, which challenged the placement of Long Energy’s 30,000-gallon propane storage tank less than 200 feet from their living room in Duanesburg under the category of a “retail store”.  The decision states that “The entire petition is properly dismissed based on the doctrine of laches, which respondents pleaded and proved.”  Basically, the court said that because the Miners waited until the facility was almost completed to bring their lawsuit, it would be unfair to Long Energy to let them challenge the issuance of the special use permit.

The Appellate Court did not say that it was proper to put a propane storage facility at that location, but merely said the Miners filed too late, even though they filed within the statute of limitations.  No issues were dealt with “on the merits,” so the Court did not decide whether a bulk storage facility can be considered a “retail store” when there are no personnel, no buildings, and no sales or customers on the premises, nor whether the danger from putting a high-hazard facility so close to homes (and a church and a welding operation) was adequately considered by the Planning Board .

 Click for the Appellate Division’s decision in Miner v. Town of Duanesburg Planning Board (NYS Supreme Court 3rd Department App. Div., Case No. 513780, 2012 NY Slip Op 06043, August 23, 2012).  Our arguments against the tank can be found in our posting “Duanesburg needs a dictionary” and in our subsequent discussion of the appeal.  Also, read the Statement of Facts from the Miners’ Appellate Brief.

    LACHES: The doctrine of laches is based on equitable principles and states that a court may refuse to hear a complaint, even when as here the petitioners filed within the statute of limitations, if the relief they request would cause undue hardship to the respondents because of an inexcusable delay in bringing the lawsuit.  Here, the Third Department notes that the Miners were at the public hearing in March 2011 but did not file until June 2011 (they actually filed May 26, 2011).  The Appellate Division concluded:

“Thus, although petitioners’ effort to resolve their concerns through negotiations directly with Long Energy is commendable, their failure to pursue any legal remedy while construction of the facility proceeded to near completion right before their eyes must result in dismissal of this proceeding.”

Naturally, Bill and Cyndi Miner, and I as their good friend and appellate lawyer, are disappointed in the 3rd Department’s decision, and respectfully disagree.  Laches is about equities — fairness and justice — and we believe there were/are many reasons why it was unfair to deny the Miners a chance to show that it was unlawful for Duanesburg to allow a giant propane storage tank at that location.  The result is placement of a high-hazard industrial use in a restricted commercial zone and a neighborhood populated by single-family homes and small farms.  Here are a few of the facts and issues the appellate court never mentions that show the Miners had sufficient equities on their side to allow them to be heard:

  •  the Miners did not bring the lawsuit solely for their own sake; a giant tank situated near a road with open access by people and vehicles creates a serious safety hazard for all who live, work, or worship near there
  •  the Planning Board granted the special use permit under the category of “retail shop or store,” although — as the Court states — “Long Energy sought to construct a propane storage facility featuring a 30,000 gallon tank.” Not only is a storage tank not a store, the Town’s Zoning Ordinance specifically defines the storage of explosive materials as a heavy industrial use, and the Town has no heavy industrial zoning. The Town’s Zoning Enforcement Officer himself issued the facility an occupancy certificate as a High-Hazard use.
  • allowing a dangerous use that is so inappropriate for this zone and neighborhood undermines the entire Town’s faith in the Zoning Covenant  — the promise that zoning restrictions will be enforced and their lives and property protected
  •   Long took a calculated risk that it could avoid a legal challenge to the permit despite not operating a store on the premises; not supplying any form of visual or audio buffer; installing no restrictions on access, and no protection in front of the tank from accidental or intentional vehicle collision
  • the Miners were interested in far more than what the Court called their “viewshed”.  They delayed their lawsuit thinking Long had agreed to construct a large berm in front of the tank that was tall enough (and topped with sufficient evergreen trees) that it would be a visual and sound buffer, protect the tank from vehicle damage, and help protect the neighbors from an explosion.
  • Long knew that the Miners had strongly opposed the tank at the public hearing, saying it was not a store, and dangerous, and thus not an allowed use.  Long therefore did not prove an important element of laches, because it could not show that it had no prior knowledge that the Miners might sue to stop their project.
  • This is not a case where a significant building would have to be destroyed if neighbors who had seen the ongoing construction won their lawsuit.  There was no building, merely a storage tank that could readily be moved on a flatbed truck to an appropriate location.  That greatly reduces any hardship, which the respondents brought on themselves, if the Miners won.
  • If there were any factual disputes about fairness and equities and hardships, the Supreme Court was required to give the benefit of the doubt to petitioners, or else to hold a fact-finding hearing on important questions.  The appellate division could have allowed a better balancing of equities by remanding the case to the Supreme Court for a quick trial.

  The Miners are considering whether they will ask the Court of Appeals (the highest court in the State) for leave to appeal the appellate court’s decision.  They have 30 days after being served with the decision to do so.

Finally, here are a few musings about the aftermath of this case:

  • Members of the Duanesburg Planning Board (including Ms. Novak and Mr. Wiederman) specifically noted that this was not a store or that no retail sales would be going on at the property — it is just bulk storage for distribution by Company trucks to customers.  But, no Board member was responsible or courageous enough to try to block this project.  A reversal might have been an important reminder of their duties, and a motivation to ask the Board’s counsel for an objective legal opinion.
  • State law specifically allows “an officer, department, board or Bureau of the town” to appeal any decision of the code enforcement officer to the Zoning Board of Appeal.  [Town Law.Sec. 267-a(4)] That means that the Town Supervisor, the Planning Board or its members, or even the Town Council could have asked the Zoning Board of Appeal to interpret whether a propane storage tank could be allowed under the “retail store” category in the C-1 district, and whether it was a banned heavy industrial use.  They could have gone to the ZBA as soon as the CEO Dale Warner made his decision in February 2011 that the tank was an appropriate special use, or gone after the permit was granted. No one did so.  Indeed, when Bill Miner went to the Town Supervisor right after the permit was granted and asked if she could do anything to stop the permit, she told him there was nothing she could do and the only thing Bill could do was to bring a lawsuit or try to reach a settlement with Mr. Long.
  • Allowing this permit to stand sets a very bad example for the Planning Board and Enforcement Officer.  For example, I hope that Town officials do not conclude they can ignore the plain meaning of everyday words such as “retail store”. What will they decide is a place of worship or an office building, if they can ignore a word as explicit and ordinary as “store”? 
  • The Duanesburg zoning ordinance allows “retail stores” in its quaint Hamlet District, with only a 40-foot setback.  I hope that doesn’t give other propane companies any ideas for placing their tanks.
  • An actual retail store would have been acceptable and probably desired by the neighbors.  A store tries to offer needed or desired products or services, creates jobs in the Town, and attracts people to the neighborhood and Duanesburg.  This propane facility does none of those things.

    Besides putting people at risk, the Town has spent over $38,000 defending a permit that on the very face of the Ordinance should never have been granted.   Despite this “victory,” I hope some important lessons were learned that might somehow avoid similar conduct in the future and help justify that expenditure.  Public-minded tax-payers like Bill and Cyndi Miner should not have to rush to court and suffer the aggravation and expense of an Article 78 lawsuit in order to undo the work of appointed or elected scofflaws and protect their peace of mind and property values.   Of course, this case again underscores the need for constant vigilance — and a litigious spirit — on the part of the public.

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