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Affirmation

{Author}

STATE OF NEW YORK

COUNTY OF ALBANY                   SUPREME COURT

_________________________________________________

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 No. 1

AFFIRMATION

                                                            Petitioners,

                                                                                                                        Index No.                            for judgment pursuant to Article 78 of the CPLR                                        

RJI No.                       

-against-                                             

                                                                                                                       

CITY OF ALBANY,

Respondents.

---------------------------------------------------------------------------

REZSIN ADAMS, LYNNE JACKSON, MARTHA MASTERS,

PETER VAN NOSTRAND and JOHN WOLCOTT,

                                                                                                                        Case No. 2

AFFIRMATION

                                                            Plaintiffs,                                           

                                                                                                            Index No.

-against-                                             

                                                                                                                        RJI No.

GERALD JENNINGS, Mayor of the City of Albany, the CITY OF

ALBANY, and the ALBANY COMMON COUNCIL,

Defendants.

_________________________________________________

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:

  1. 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.
  2. This preliminary injunction is necessary to preserve the status quo pending the resolution of the merits of petitioner's/plaintiffs' claims. 
  3. 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.
  4. 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.
  5. 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 them.

PROBABILITY OF SUCCESS ON THE MERITS

  1. For the reasons set forth in the accompanying Memorandum of Law, the petitioners/plaintiffs are likely to succeed on the merits of their Petition.
  2. 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.
  3. 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.
  4. 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.
  5. 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".
  6. 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).
  7. 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.
  8. Petitioners/plaintiffs therefore believe that there is a high probability that they will succeed on the merits of this case.

IRREPARABLE HARM

  1. 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.
  2. 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.
  3. 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 Preserve Commission.
  4. The threatened loss of this land is of particular concern because this parcel is crucial to the entire Pine Bush Preserve.  As 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 this Exhibit).
  5. 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 organization.  While 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 of dollars.

BALANCE OF EQUITIES

  1. 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.
  2. 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.
  3. 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.
  4. 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

_________________________

                                                                                                Peter Henner, Esq.

                                                                 

 

This page last modified January 12, 2008
Contact Save the Pine Bush at pinebush@aol.com.