STATE OF NEW YORK
COUNTY OF ALBANY SUPREME
In the Matter of the Application of
SAVE THE PINE BUSH, INC., REZSIN ADAMS,
SANDRA CAMP, SHARON CASTERLIN, LUCY CLARK,
LYNNE JACKSON, MARTHA MASTERS
JOHN WOLCOTT, PETER VAN NOSTRAND
and RUSSELL ZIEMBA, Case
judgment pursuant to Article 78 of the CPLR
CITY OF ALBANY,
REZSIN ADAMS, LYNNE JACKSON, MARTHA MASTERS,
PETER VAN NOSTRAND and JOHN WOLCOTT,
GERALD JENNINGS, Mayor of the City of Albany, the CITY OF
ALBANY, and the ALBANY COMMON COUNCIL,
Peter Henner, an attorney duly admitted to practice in the State
of New York, hereby affirms under the penalty of perjury, pursuant
to CPLR 2106:
- I am the attorney for petitioners and plaintiffs in the above-referenced
proceedings and make this Affirmation in support of their application
for a preliminary injunction enjoining the City of Albany from
proceeding with its application for a new landfill permit.
- This preliminary injunction is necessary to preserve
the status quo pending the resolution of the merits of
- Petitioners/plaintiffs maintain that the City of Albany
is legally required to dedicate this land to the Pine Bush
Preserve Commission. However, such a dedication will
be impossible if the City is successful in obtaining a
permit to utilize this land for landfill expansion, and
so utilizes the land.
- The City filed an application for a new landfill, on
or about November 16, 2005, by sending a letter to William
Clarke, the Permit Administrator for Region 4 of the New
York State Department of Environmental Conservation, together
with a completed Part 1 of a Full Environmental Assessment
Form and an application cover sheet for the landfill expansion
permit. The transmittal
letter of Albany Counsel Ruth Leistensnider, together
with the Environmental Assessment Form is annexed to the
Petition as Exhibit K.
- In order to obtain an injunction, petitioners/plaintiffs
must demonstrate: 1) probability of success on the merits,
2) irreparable harm, and 3) the balance of the equities favors
PROBABILITY OF SUCCESS ON THE MERITS
- For the reasons set forth in the accompanying Memorandum
of Law, the petitioners/plaintiffs are likely to succeed on
the merits of their Petition.
- Specifically, petitioners/plaintiffs seek to enforce
a mitigation condition which was explicitly attached to
the SEQRA findings of the New York State Department of
Environmental Conservation with respect to the issuance
of a permit for the landfill expansion in the year 2000. This
mitigation condition was also expressly included in the
permit issued by DEC to the City of Albany in 2000.
- This permit condition requires the City to acquire a
60 acre parcel of land, known as the Fox Run parcel, and
immediately dedicate 40 acres of the parcel to the Albany
Pine Bush Preserve Commission. The remaining 20 acres
are to be dedicated after the last existing tenant of the
Fox Run Mobile Home Park vacated the premises.
- Although the City acquired the property in the year 2000,
the 40 acres have never been dedicated to the Albany Pine Bush
Preserve Commission, as required by the Final Environmental
Impact Statement and by the permit condition.
- Furthermore, the land that was acquired was to be dedicated
to the Albany Pine Bush Preserve Commission, to be included
in the Preserve, and to be managed as open space. Such
a use constitutes use as "parkland".
- Upon information and belief, the City cannot alienate this
land for any other use without a specific act of the New York
State Legislature (see attached Memorandum of Law, particularly
Points III and IV).
- Upon information and belief, there are no significant factual
disputes with respect to the chronology of this action, and
the City's legal obligations are clear and unambiguous.
- Petitioners/plaintiffs therefore believe that there is a
high probability that they will succeed on the merits of this
- Absent an injunction, the City will be able to proceed with
its application for a new landfill permit from the New York
State Department of Environmental Conservation.
- If the Department of Environmental Conservation grants this
permit, the City will be able to immediately commence construction
of the new landfill on land that should have been dedicated
to the Albany Pine Bush Preserve Commission.
- Obviously, once the construction of the landfill has begun,
it will be impossible to preserve the Fox Run parcel as open
space, and the land will be permanently lost to the Pine Bush
- The threatened loss of this land is of particular concern
because this parcel is crucial to the entire Pine Bush
described in the comments of former Pine Bush Preserve Commission
Executive Director Willie Janeway, this parcel is a land bridge
between the eastern and western sections of the preserve, and
is essential for the migration of the Karner Blue Butterfly
between the two parcels (see Petition¶¶ 33-35,
Exh. D, particularly the map of the preserve attached to
- Furthermore, absent an injunction, petitioners and plaintiffs
will be irreparably harmed because of the necessity to
participate in a lengthy adjudicatory proceeding, which
will be a major drain of resources for a small local environmental
the costs of this proceeding are in the thousands of
dollars, the costs of participating in a DEC administrative
adjudicatory proceeding will be in the tens of thousands
BALANCE OF EQUITIES
- The City of Albany will not be prejudiced by having to wait
to proceed with its landfill expansion application until the
resolution of this proceeding.
- If petitioners/plaintiffs are ultimately successful, the
City will benefit by saving the significant costs of proceeding
with its application, both for legal fees and technical consultant
fees, and the extensive amounts of employee time associated
with applying for a major landfill permit from the New York
State Department of Environmental Conservation.
- On the other hand, even if petitioners/plaintiffs are ultimately
unsuccessful, the only prejudice to the City will be a relatively
short delay of a few months of their landfill plans.
- In considering the equities of the situation, petitioners/plaintiffs
respectfully maintain that the Court should consider
the fact that the City has created the instant situation
by unreasonably delaying the dedication of the land to
the Albany Pine Bush Preserve for over five years. Had
the City fulfilled its legal responsibilities in the year
2000 or 2001, the land would be properly protected, and
the instant lawsuit would not be necessary.
WHEREFORE, your affiant respectfully urges
this Court to grant petitioners/plaintiffs motion for a preliminary
injunction, enjoining the City of Albany and other defendants
from proceeding with its application for a new landfill permit
for the expansion of the Rapp Road landfill, pending the final
resolution of this action/proceeding on the merits.
DATED: January 17, 2006
Clarksville, New York