The Appellate Division dismissed a challenge to a special permit, when the petitioner delayed bringing an Article 78 proceeding while the recipient of the special permit continued with construction. in Matter of Miner v. Town of Duanesburg Planning Board, The Court held:
“Petitioners were present and spoke at the March 2011 Planning Board meeting at which Long Energy’s application was considered and the special use permit was granted. Nonetheless, petitioners did not commence this proceeding until June 2011, by which time Long Energy had already expended over $200,000 and construction of the facility was very near completion. Additionally, inasmuch as petitioners’ negotiations with Long Energy centered around their viewshed concerns, respondents were not on notice that petitioners would commence this proceeding challenging the use of the property. 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 [*3]their eyes must result in dismissal of this proceeding (see Matter of Clarke v Town of Sand Lake Zoning Bd. of Appeals, 52 AD3d 997, 999-1000 [2008], lv denied 11 NY3d 707 [2008]; Marlowe v Elmwood, Inc., 34 AD3d 970, 971-973 [2006], lv denied 8 NY3d 804 [2007]).”