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SAVE THE PINE BUSH, INC.  

Albany Pine Bush Landfill Expansion
Parkland Alienation

Peter Henner, Esq.                              

A.11981 (McEneny, Canestrari)                                     S.8369 (Breslin)

 

{Author}

Save the Pine Bush vigorously opposes this bill, which would alienate 12.6 acres of high-quality Pine Bush habitat and set a dangerous precedent by which land, already dedicated to the Albany Pine Bush Preserve, can be alienated from park purposes and destroyed.  Furthermore, this bill, rather than enable or advance the SEQRA process, will effectively foreclose an honest and comprehensive environmental review of the City of Albany's options with respect to its existing landfill.

SEQRA review of the project can proceed without a bill alienating parkland.

The proposed landfill expansion is an "action" under SEQRA, requiring approval by the city of Albany, and the issuance of permits, including a part 360 landfill permit, by the New York State Department of environmental conservation. An environmental review under SEQRA should be performed “[a]s early as possible in the formulation of a proposal for an action”. ECL 8-0109 (4). Such a review can and should be undertaken immediately, and there is no basis, either in law, or in the public policies underlying SEQRA, why this review cannot be undertaken before the City seeks Legislative action.

The proposed bill will affect the alternatives and mitigation measures that must be considered as part of a SEQRA review.

The proposed landfill expansion will destroy a critical portion of the remaining Pine Bush habitat. Before such an action can pass a SEQRA review, all reasonable alternatives and possible mitigation measures must be considered. Alternatives include the use of other land, not presently part of the Pine Bush Preserve. Enacting legislation, in advance of the SEQRA process, authorizing the alienation of certain land that is presently protected, forecloses other alternatives. Furthermore, the Legislative authorization of taking of a precious ecological resource, without the development of an adequate factual record through the SEQRA process, will constitute a justification for the city and the Department of Environmental Conservation to conclude that the state has determined that the Pine Bush parcel at stake is not worthy of protection.

Friends of Van Cortlandt Park v. City of New York demonstrates the value of an environmental review before enacting a bill that alienates parkland.

Five years ago, the New York State Court of Appeals, in Friends of Van Cortlandt Park v. City of New York,  95 N.Y.2d 623, provided an advisory opinion to the United States Second Circuit Court of Appeals, stating that legislative action was necessary before a water treatment plant could be sited in a city park. In making this determination, the court relied upon the environmental impact statement that had already been prepared, which demonstrated the adverse impacts on the project.

While this case demonstrates that legislative action is necessary, it also graphically illustrates the dangers of legislative action before any environmental review is conducted.  If the City of New York had sought legislative approval, without conducting the environmental review, the determination to alienate the land from park purposes would have already been made before any review had been conducted.

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