with VERIFIED PETITION Petition Filed: May 26, 2011 Index No For a Judgment pursuant to CPLR Art. 78 & 3001 Date Filed: June 2, 2011

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1 STATE OF NEW YORK SUPREME COURT: COUNTY OF SCHENECTADY In the Matter of the Application of WILLIAM B. MINER & CYNTHIA L. MINER Petitioners, NOTICE OF PETITION with VERIFIED PETITION Petition Filed: May 26, 2011 Index No For a Judgment pursuant to CPLR Art. 78 & 3001 Date Filed: June 2, against - Assigned to: Hon. BARRY D. KRAMER TOWN OF DUANESBURG PLANNING BOARD, LONG OIL HEAT, INC., d/b/a Long Energy, SAMUEL DONADIO, and MAREBO, LLC, Respondents. ORAL ARGUMENT REQUESTED TO THE ABOVE-NAMED RESPONDENTS: PLEASE TAKE NOTICE that upon the verified petition of petitioners WILLIAM B. MINER and CYNTHIA L. MINER, verified on the 26th day of May, 2011, an application will be made to the Supreme Court of the State of New York, County of Schenectady, at a Special Term thereof, to be held at 612 State Street, 4th Floor, in the City of Schenectady, State of New York, on the 8th day of July, 2011, at 9:30 o'clock in the forenoon, or as soon thereafter as counsel can be heard, for a Judgment against the abovenamed respondents:

2 (a) preliminarily enjoining, during the pendency of this proceeding, respondent LONG HEATING OIL, INC. /d/b/a LONG ENERGY, and its employees, agents or assigns, from commencing or continuing the on-site preparation for and operation of the proposed bulk propane storage and dispersal facility on the subject parcel. (b) annulling and setting aside respondent Board s determination of March 17, 2011 granting a special use permit to Applicant/respondent Long Energy; (c) annulling and setting aside respondent Board s Negative Declaration/Determination of Significance under SEQRA, made it is meeting on February 17, 2011; (d) granting such other and further relief as to the Court may seem just and proper, together with the costs and disbursements of this proceeding. PLEASE TAKE FURTHER NOTICE that, pursuant to Section 7804 of the CPLR, each respondents' answer and supporting affidavits, if any, and respondent Planning Board s certified transcript of the record of the proceedings under consideration, shall be served at least five days before the time the petition is noticed to be heard. Schenectady County is designated as the place of trial, in accordance with CPLR 7804(b) and 506 (b), because it is the county where the respondent Board made the determinations complained of. Dated: June 2, 2011 Duanesburg, New York s/ William B. Miner, Petitioner, Pro Se 2382 Western Turnpike, Duanesburg NY phone: (518)

3 STATE OF NEW YORK SUPREME COURT: COUNTY OF SCHENECTADY In the Matter of the Application of WILLIAM B. MINER & CYNTHIA L. MINER Petitioners, VERIFIED PETITION Index No. I For a Judgment pursuant to CPLR Art. 78 & 3001 Date Filed: May 26, against - Assigned to: Hon. Barry D. Kramer TOWN OF DUANESBURG PLANNING BOARD, LONG OIL HEAT, INC., d/b/a Long Energy, SAMUEL DONADIO, and MAREBO, LLC, Respondents. Petitioners WILLIAM B. MINER and CYNTHIA L. MINER, appearing pro se, for their verified petition against respondents herein, respectfully allege and state: 1(A). Petitioners WILLIAM B. MINER and CYNTHIA L. MINER (hereinafter, "the Miners" or Petitioners ) are husband and wife, and jointly own and reside with their 20-year-old daughter in a single-family dwelling commonly known as 2382 Western Turnpike, Town of Duanesburg, County of Schenectady, State of New York, which is located across Western Turnpike [State Route 20] immediately to the north of SBL#: , the subject parcel in this Article 78 proceeding, [hereinafter the subject parcel ]; the Miners have owned their residence since 1999, when it was zoned R-2 (Agricultural & Residential); the front portion of the property, where the residence is located, was subsequently zoned C-1 Commercial.

4 2(A). Upon information and belief, respondent TOWN OF DUANESBURG PLANNING BOARD (hereinafter, "Board") is the planning board of the Town of Duanesburg, County of Schenectady, State of New York, possessing the powers and duties of a town planning board of appeals pursuant to Article 16 of the Town Law of the State of New York, including, without limitation, the authority to hear and decide applications for special use permits in accordance with the laws of the State of New York, with an office for the conducting of business in the County of Schenectady at 5853 Western Turnpike Duanesburg, NY (B) Upon information and belief, respondent LONG OIL HEAT, Inc, d/b/a LONG ENERGY [hereinafter Applicant or Long Energy ], is a domestic business organization and the Applicant in this proceeding; upon information and belief its principle offices are located at 170 Myrtle Ave., Box 9006, Albany, NY, 12202, in Albany County; its CEO is Robert F. Bobbie Long. 2(C). Upon information and belief, respondent SAMUEL SAM DONADIO was the owner of record of the subject parcel, and of the larger parcel from which it was subdivided, SBL# , when the Application was made and the challenged action taken; upon information and belief, he resides at 231 South Wescott Rd, Schenectady NY 12306, in Schenectady County, and has a place of business at 4715 State Highway 30, Amsterdam, NY , in Montgomery County, New York. 2

5 2(D). Upon information and belief, respondent MAREBO, LLC, is a domestic limited liability company established on or about April 1, 2011, and purchased the subject parcel from Respondent Donadio in April 2011; upon information and belief, it is owned in whole or part by the Applicant or by its CEO, Robert L. Bobbie Long; its address for service by the NYS Department of State is 4379 Frederick Road, Altamont, New York, 12009, in Albany County. 3. This proceeding is brought to challenge a determination made by respondent Board on March 17, 2011, the granting of a special use permit to allow placement of a 30,000 gallon bulk propane storage facility, approximately 60 feet long and 8 feet high and sitting on a foundation 40 above ground level, on the subject parcel, a use not permitted either by right or with a special use permit in the Town of Duanesburg's C-1 Commercial zoning district; this proceeding also challenges respondent Board's issuance of a Negative Declaration/Determination of Non- Significance for the Applicant s proposed project; the notice of the Board s decision on the Application was filed in the office of the Town Clerk on April 26, The following information regarding the subject parcel is available at the offices of the Schenectady County Clerk, or in the files of respondent Board, or is alleged upon information and belief: (a) the subject parcel, which lies adjacent to 2261 Western Turnpike, is approximately 1.91 acres in size, with a width of approximately 250 feet and a depth of 309 feet, and is located on the 3

6 south side of the Western Turnpike [Rte. 20], a two-lane road that is a designated thoroughfare for large trucks carrying heavy or hazardous loads; a circular driveway services the parcel exclusively, with entry/exits points at the west and east ends of the parcel providing access to and from Western Turnpike; pursuant to the Special Use Permit granted by the Board on March 17, 2011, respondent Long Energy has erected a bulk propane tank on the property approximately 55 feet long, with a capacity of 30,000 gallons, situated about 72 from the road, and less than 200 from the structure in which the Petitioners reside; virtually all vegetation, including trees and tall brush, has been removed from the area between the tank and the road and from the rest of the parcel. (b) See the Photographic Attachment to this Petition, containing Photographs 1 & 2, which were taken on Wednesday, May 25, 2011; Photograph 1 was taken from the front lawn of the residence of the Petitioners, looking south across Western Turnpike, and depicts the subject parcel with its vegetation removed, and with a pickup truck alongside the 30,000 gallon bulk propane storage tank; Photograph 2 was taken from the west end of the propane tank, looking to the north across Western Turnpike, and depicts the residence of the Petitioners, and a driveway used by trucks for access to the parcel and the road. 5. The following properties and uses are immediately adjacent to the subject property, and the information can be found in the office or on the website of the Schenectady County Clerk, or is based upon information and belief: (a) to the east, lies 2261 Western Turnpike, which is zoned C-1 Commercial; JHI Industries, a business providing heavy equipment sales, servicing, and repairs, is operated on the 4

7 site, where welding is regularly performed; it has a 2010 assessed full market value of $476,900; (b) to the south and west, lies a parcel designated SBL# , which is owned by respondent Donadio and is vacant land zoned R-2 (Agricultural & Residential); upon information and belief, said parcel contains or is contiguous to protected wetlands; the Board approved an Application on March 17, 2011, to subdivide the subject parcel from SBL# , which had been about 5.01 acres in size and now consists of approximately 3.1 acres; (c) immediately west of SBL# is a single-family residence, located at 2419 Western Turnpike, with a lot size of 2.30 acres and a 2010 assessed full market value of $175,800; upon information and belief, the existence of the bulk propane storage tank and the operation of the Applicant s proposed propane facility on the subject parcel significantly reduces the value of the property, and the quiet use and enjoyment of the property. (d) to the north, across the two-lane Western Turnpike, lies 2382 Western Turnpike, the residence of the Petitioners, which has a frontage of approximately 600 along Western Turnpike and is opposite the entire front boundary of the subject parcel; the strip of land along that road is zoned C-1 to a depth of 500, with the remainder of the Petitioners parcel consisting of vacant land zoned R-2 (agricultural & residential), including wetlands; the structure used as the Miners residence is less than 200 from the 30,000 gallon propane storage tank erected by the Applicant, and upon information and belief would be incinerated or flattened if the tank exploded; the 2010 full market value assessment of the parcel is $327,500; the existence of the propane tank and the operation of the Applicant s proposed propane facility significantly reduces the value of the property. 5

8 6 (a). Pursuant to the Town of Duanesburg Zoning Ordinance, 11.1, the only use permitted by right in the C-1 zone is Home Occupations; none of the 24 use categories that are permitted in zone C-1 with the granting of a special use permit under 11.2 of the Zoning Ordinance encompasses the use proposed by the Applicant: the operation of a bulk propane storage facility where the Applicant s fleet of tank trucks would be filled with the pressurized liquid gas prior to making their rounds to the Applicant s customers. 6 (b). According to the Agenda and Minutes of the Board, Applicant Long Energy sought its special use permit under 11.2(3), which pertains to Retail or wholesale stores or shops; however, the proposal has none of the attributes of a retail or wholesale commercial establishment, under the common usage and meaning of the terms, and there is no special definition of such terms in the Town s Zoning Ordinance. Thus, the Applicant s proposal contains: no structure to be used as a store or shop, no personnel manning the site other than the operators who arrive in huge tanker trucks to fill the tank or to fill the Applicant s own vehicles from the tank, and then depart, no plan for pedestrian access or off-street visitor parking; and no retail nor wholesale customers anticipated and no plan to accommodate them. Therefore, the invocation of 11.2(3) by the Applicant and the Board is totally inapposite, and the Board had no power to grant the special use permit. 6 (c). Furthermore, by defining a use engaged in storage of... flammable or explosive materials, as an Industrial, Heavy use, Town of Duanesburg Zoning Ordinance makes 6

9 it clear that the proposed propane facility is inappropriate for a commercial district, and may in fact be inconsistent with the standards applied to the Town s Manufacturing and Light Industrial District (C-2). 7(a). Town Law 274-b defines a special use permit as an authorization of a particular land use which is permitted in a zoning ordinance or local law, subject to requirements imposed by such zoning ordinance or local law to assure that the proposed use is in harmony with such zoning ordinance or local law and will not adversely affect the neighborhood if such requirements are met. 7(b) of the Town s Zoning Ordinance states that No special use permit shall be granted until the Board shall find and determine that, among other things: c) The character of the neighborhood and values of surrounding property is reasonably safeguarded; d) Such use will comply with all other terms, conditions, requirements and standards imposed by this Ordinance. e) The use is consistent with the Town Comprehensive Plan. 7(c). Pursuant to , in its formal review of the site plan that must be submitted with a Special Use Permit application, the Board must perform a detailed review in such depth and detail to ensure, among other objectives, that the Board determine: i. [W]hether the proposal is subject to the State Environmental Quality Review Act and, if so, to initiate the process in accordance with Section ii. that the proposed use will not have a significant negative effect on existing adjacent land uses. 7

10 iii. the Adequacy of the type and arrangement of trees, shrubs, and other landscaping constituting a visual and/or noise deterring buffer between the applicant's and adjoining lands, including the maximum retention of existing vegetation. iv. the Compliance with Performance Standards established in Section of the Zoning Ordinance to ensure protection of adjacent or neighboring properties against noise, glare, unsightliness or other objectionable features 8(a). Petitioners contend, in light of the requirements of State and local law detailed in Paragraph 7 above: 1. that the Applicant s proposal is not a permitted special use under Duanesburg s zoning ordinance; 2. that Applicant has not provided proof that would allow the Board to determine that the proposed propane facility would not adversely affect the neighborhood and adjoining properties and property values through, among other adverse effects, the creation of a continuing eyesore and a source of noises, lighting, and vibration that degrade the esthetic enjoyment of the neighborhood by residents, visitors and passersby; and through the creation of traffic hazards and a significant risk of explosion; and 3. that the Board has failed to require conditions be attached to the Special Use Permit, as envisioned in Town Law 274-b(4), to ensure operation compatible with surrounding uses and to prevent adverse effects on the neighborhood, such as preventing the unnecessary removal of roadside vegetation that provides a noise and visual barrier, and 8

11 requiring the reasonable limitation on hours of operation, and minimization of light pollution. 8. (b) In addition to having no authority to allow the proposed project in a Commercial zone, and failing to make the explicit determinations required by law, the Board has failed to meet the prerequisites for granting a special use permit in several ways: 1. The Board never took into account, did not demand sufficient evidence concerning, and/or did not adequately safeguard the neighborhood and the values of surrounding property from the many significant adverse effects listed in paragraph 8 (a)(2) above; more specifically, it did not adequately consider the impact of the proposed use on the Petitioners esthetic and peaceful enjoyment of their homestead and the surrounding neighborhood due to the unsightliness and proximity of the facility, and the adverse effects due to the vibrations, noise and light pollution caused by its operation, the risk of explosion from the close proximity of a 30,000 gallon propane tank, and increased traffic hazards day and night due to the coming and going of tankers and Applicant s delivery trucks; nor did it consider the negative effect upon the property value of their property; 2. Furthermore, the Board failed to adequately consider the inconsistency of the proposal with the standards and objectives of the Town Zoning Ordinance relating to uses allowed in the C-1 Commercial district and with the objectives and recommendations of the Town Comprehensive Plan. To wit, the placement of the propane facility on a shallow piece of property so close to a busy and narrow roadway, with a circular driveway exclusively used by the Applicant s facility, is inconsistent with the introduction to Section 11, the Commercial (C-1) 9

12 provisions of the Town of Duanesburg Zoning Ordinance, which stresses: The Comprehensive Plan specifies that commercial zones should be deep, affording the opportunity for development of off-highway centers which could share common entrances and exits, thereby minimizing the interruption of traffic on high volume roads. Strip development is discouraged. Moreover, the Comprehensive Plan (at 33) declares its Objective in commercial districts: Objective: Adequately consider access management when locating commercial and residential development along state, county, and local roads. Frequently local governments are pressured to locate commercial developments in strips along major transportation routes. Locating commercial uses in this manner along transportation corridors increases the number of access points (driveways and intersections), decreases the level of service of the road, and creates a conflict between local and through traffic. PETITIONERS' FIRST CLAIM 9. Petitioners repeat and re-allege each and every allegation contained in paragraphs 1 through 8 of this petition, with the same force and effect as if set forth here at length. 10. For the above reasons, by granting the Applicant s special use permit the Board has violated Town Law 274-b, and local Zoning Ordinance , failed to perform a duty enjoined upon it by law, proceeded without or in excess of its jurisdiction, and/or made a determination in violation of lawful procedure, affected by an error of law, and/or in an arbitrary and capricious manner. 11. Petitioners have no adequate remedy at law. 10

13 PETITIONERS' SECOND CLAIM 12. Petitioners repeat and re-allege each and every allegation contained in paragraphs 1 through 11 of this petition, with the same force and effect as if set forth here at length. 13. By issuing a Negative Declaration/Determination of Non-Significance for the special use permit application, thus claiming, among other things, that the project does not create any material conflict with the Town's comprehensive plan, is not inconsistent with surrounding uses, will not cause a substantial adverse change in noise, traffic or safety levels, and will not impair existing neighborhood or community character, and by giving insufficient weight to the admission made by the Applicant in his environmental assessment form that the proposal will have an adverse effect on public health and safety because it may cause risk of explosion or release of hazardous substance, respondent Board has violated its obligations under the State Environmental Quality Review Act (SEQRA), failed to take a "hard look" at potential areas of environmental concern, failed to perform a duty enjoined upon it by law, proceeded without or in excess of its jurisdiction, and/or made a determination in violation of lawful procedure, affected by an error of law, and/or in an arbitrary and capricious manner. 14. Petitioners have no adequate remedy at law. REGARDING PETITIONERS' REQUEST FOR PRELIMINARY RELIEF 15. Petitioners seek a preliminary injunction from the Court to maintain the status quo during the pendency of this proceeding. 11

14 16. Upon information and belief, having already erected a bulk propane storage tank on the subject parcel, removed vegetation, graded the property, put up fencing, and performed many other preparatory tasks (see Photograph 1 in the Photographic Attachment), it is respondent LONG ENERGY s intention to continue or immediately commence taking actions necessary to make the proposed bulk propane storage and dispersal facility fully operational, including using semi-trailer-size tanker trucks to fill the 30,000 gallon tank with highly flammable and explosive propane and installing lighting to fully illuminate the site; and to commence full operations at the site as soon as possible, which upon information and belief entails the coming and going of tanker trucks and of a large fleet of LONG ENERGY delivery trucks, throughout the day and night, subjecting Petitioners to objectionable noise and light pollution, and vibrations, and increased traffic hazards, in addition to risk of explosion, and other damaging effects. 17. In light of the close proximity of their residence and real property to the subject parcel, petitioners will be significantly and adversely impacted by the above activities, as will others living and operating businesses nearby. 18. Upon information and belief, operation of the proposed bulk propane storage and dispersal facility prior to full compliance with the requirements of SEQRA and the zoning and planning laws of the Town of Duanesburg and State of New York, during the pendency of this proceeding, will produce severe injury to petitioners' environmental interests, and will significantly and adversely impact their quality of life and the peaceful enjoyment of their property. 12

15 19. Upon information and belief, failure to grant the requested preliminary injunction will result in irreparable injury to petitioners and tends to render the judgment of this court ineffectual. 20. For the reasons stated above, it is clear that respondents have violated the zoning and planning laws of the Town of Duaneburg and State of New York, and have also failed to strictly comply with the requirements of SEQRA, and, therefore, petitioners have established the likelihood of success. 21. Upon information and belief, the potential harm to petitioners and to the environment if a preliminary injunction is not granted clearly exceeds any potential harm to respondents of granting the preliminary relief requested. WHEREFORE, petitioners demand judgment against respondents as follows: (a) preliminarily enjoining, during the pendency of this proceeding, respondent LONG HEATING OIL, INC. /d/b/a LONG ENERGY, and its employees, agents or assigns, from commencing or continuing the on-site preparation for and operation of the proposed bulk propane storage and dispersal facility on the subject parcel. (b) annulling and setting aside respondent Board s determination of March 17, 2011 granting a special use permit to Applicant/respondent Long Energy; (c) annulling and setting aside respondent Board s Negative Declaration/Determination of Significance under SEQRA, made it is meeting on February 17, 2011; and 13

16 (d) granting such other and further relief as to the Court may seem just and proper, together with the costs and disbursements of this proceeding. Dated: May 26, 2011 Duanesburg, New York s/ William B. Miner, Petitioner, Pro Se 2382 Western Tunrpike, Duanesburg NY phone: (518) VERIFICATION STATE OF NEW YORK) SS.: COUNTY OF SCHENECTADY) WILLIAM B. MINER, being duly sworn, deposes and says: he is one of the petitioners in the within proceeding, and that all of the petitioners are united in interest; that he has read the foregoing petition and knows the content thereof; that the same is true to his own knowledge, except as to matters therein stated to be alleged upon information and belief, and as to those matters he believes it to be true. Sworn to before me this 26th day of May 2011 Notary Public, State of New York Qualified in Schenectady County My commission expires s/ WIlliam B. Miner 14

17 PHOTOGRAPHIC ATTACHMENT [see 4(b)] - above: propane tank seen from front lawn of Petitioners home - - below: Petitioners home seen from alongside the propane tank - 15