“Appeal from a judgment of the Supreme Court (Kramer, J.),
entered August 25, 2011 in Schenectady County, which, among other
things, in a proceeding pursuant to CPLR article 78, granted a
cross motion by respondents Long Oil Heat, Inc. and Marebo, LLC
to dismiss the petition.
Respondent Long Oil Heat, Inc., doing business as Long
Energy, sells and distributes propane gas to residential and
-2- 513780 business customers. To better serve its customers in the
Schenectady County area, Long Energy sought to construct a
propane storage facility featuring a 30,000 gallon tank on
property located in the Town of Duanesburg, Schenectady County.
Upon Long Energy’s application for a building permit, the Town’s
Code Enforcement Officer determined that the proposed use
constituted the “retail distribution of propane” and was,
accordingly, a use permitted on the commercially-zoned subject
property only with a special use permit. The matter was referred
to respondent Town of Duanesburg Planning Board to consider
whether a special use permit should be granted. The Planning
Board declared itself lead agency for purposes of the State
Environmental Quality Review Act (see ECL art 8 [hereinafter
SEQRA]) and, after determining that there would be no adverse
environmental impact, issued a negative declaration for the
proposal. The Planning Board thereafter held a public hearing
and decided to grant the special use permit. Long Energy
immediately engaged a contractor to construct the facility and
respondent Marebo, LLC, an entity formed by Long Energy,
finalized the purchase of the property from respondent Samuel
Donadio.”
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23 August 2012,