“On September 5, 1996, respondent granted a special use permit to Southwestern Bell Mobile Systems, doing business as Cellular One, allowing it to construct a 250-foot cellular telephone tower and a utility building on property located on Mott Road in the Town of Duanesburg, Schenectady County. Respondent’s decision was filed in the Town Clerk’s office on September 25, 1996; however, on October 3, 1996, respondent issued another special use permit to Cellular One in accordance with a revised site plan showing a free-standing tower in place of the original tower with support cables. This decision was filed on November 1, 1996. Cellular One then proceeded to construct the facility and began operations on December 31, 1996. Thereafter, on April 11, 1997, petitioners commenced this combined CPLR article 78 proceeding and action for a declaratory judgment seeking, inter alia, a declaration that the special use permits were invalid due to respondent’s failure to comply with General Municipal Law § 239-m. Instead of answering, respondent moved to dismiss the petition on the ground that it was barred by the 30-day Statute of Limitations set forth in Town Law § 274-b (9). Supreme Court granted the motion, prompting this appeal.”
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Casetext 22 January 1998.