Posted by: Patricia Salkin | September 20, 2012

NY Appellate Court Affirms Dismissal of Propane Case Based Upon Laches

In this appeal, Miner challenges the ruling of the Supreme Court, Schenectady County, which dismissed this Article 78 petition upon the cross motions of respondents Long Oil Heat and Marebo.  The New York Supreme Court, Appellate Division, Third Department, determined that the petition was properly dismissed on the grounds of laches, and thus affirmed the Supreme Court’s dismissal.

Long Oil Heat, doing business as Long Energy, sought to construct a propane storage facility containing a 30,000 gallon storage tank.  The Duanesburg Planning Board was lead agency for the environmental review, made a negative declaration, and later approved the special use permit for the construction of the facility.  The facility was permitted in the commercially zoned parcel because it was determined to constitute “retail distribution of propane,” which is permitted by way of special use permit.  Following this approval, respondent Marebo, an entity formed by Long Energy, purchased the property, and Long Energy engaged a contractor to begin construction.  Throughout the construction of this facility, the petitioner attempted to negotiate with Long Energy concerning the appearance of the facility, but, these negotiations failed.  Petitioners then challenged the decisions of the Planning Board after the facility was almost completed, and further sought a preliminary injunction against the construction of the facility.

The Appellate Division held that the defense of laches should bar an action where four factors are met.  Specifically, the claim should be dismissed where the circumstances illustrate “(1) conduct by an offending party giving rise to the situation complained of, (2) delay by the complainant in asserting his or her claim for relief despite the opportunity to do so, (3) lack of knowledge or notice on the part of the offending party that the complainant would assert his or her claim for relief, and (4) injury or prejudice to the offending party in the event that relief is accorded the complainant.”  On this appeal, the court determined that the petitioner was barred from establishing this claim based upon the doctrine of laches.  The court stated that the petitioner was at the planning board meetings in March of 2011, yet failed to file the proceeding until June.  During this time period, construction was almost completed and over $200,000 was expended.  Although there were negotiations ongoing concerning the view-shed impact of the facility, the court found these negotiations did not alert the respondents to the likelihood of a legal challenge to the land use.  Though the court found the petitioner’s desire to negotiate commendable, the court found they brought their action too late, and should have filed sooner to preserve their rights and protect the respondents from unnecessary injury.

Miner v. Duanesburg Planning Bd., 98 A.D.3d 812 (3rd Dept., Aug 23, 2012)

The opinion is available here.

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