Court: Duanesburg couple waited too long to sue over tank

PHOTOGRAPHER: Justin Mason

Long Energy had already spent more than $200,000 to build a 30,000-gallon propane tank on Western Turnpike before neighbors Bill and Cyndi Miner filed a lawsuit challenging the development three months after it was approved, an appeals court ruled.

Justices for the Appellate Division of state Supreme Court found the couple failed to preserve their legal right to sue because they waited until the project was nearly complete. The court acknowledged the Miners tried to negotiate a solution with Long Energy, but ultimately found they waited too long to pose a legal challenge to the special use permit issued by the Duanesburg Planning Board.

“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,” Justice Bernard Malone Jr. wrote in the four-page ruling issued Thursday.

Dave Giacalone, an attorney for the Miners, said the couple hasn’t decided whether to bring the case to the Court of Appeals, the state’s highest court.

“We believe it is unfair to the Miners, and all those who live, work and worship near that tank, to dismiss their petition without getting to the merits,” he said.

Long Energy attorney Robert Ganz said there is no indication Long Energy has done anything wrong, despite complaints lodged by the Miners.

“We do not believe there’s any risk of harm due to that propane tank,” he said.

Duanesburg Town Attorney Jeffrey Seigel said he hopes the ruling will at last put an end to the issue.

“We hope the litigation has ended with this final decision,” he said.

The Miners filed a lawsuit against the company, the town of Duanesburg and former property owner Samuel Donadio, asking for an injunction to stop further work on the project in July 2011. They contended the tank located just 72 feet from a busy thoroughfare posed a serious threat if it was struck by an errant vehicle.

Giacalone argues the town erred when it approved a special use permit for the project, since the massive propane tank doesn’t appear to be a retail business as it was described in the application.

“I came out of retirement to do this case for my good friends, because I strongly believe that there is a zoning covenant between a municipality and its residents — the promise that zoning restrictions will be enforced and lives and property protected,” he said. “That promise has been broken.”