In a continuing effort to preserve Karner Blue Butterfly habitat,
Save the Pine Bush petitioned the Appellate Court to overrule
the Albany Planning Boards approval of another senior
housing project's construction within the Pine Bush. The plan
to build Avila Independent Senior Housing Campus was given the
go-ahead by the Albany Planning Board, despite distinct preservation
criterion instituted by Federal, State and City regulations.
The proposed Avila Campus would be built on land owned by the
Roman Catholic Diocese of Albany. The 30 acre parcel is nestled
between the Crossgates Mall and the southeast quadrant of the
Pine Bush Preserve. The idea of developing this area is particularly
alarming because it acts as the only Karner Blue Butterfly migration
corridor from the Crossgates area known as "Butterfly Hill"
to the rest of the Preserve. Because the Karner Blues can only
fly relatively short distances during their lifetimes, stepping
stones of lupine need to be in place to sustain life cycles
along their migration. Construction would essentially remove
those stepping stones, further threatening the endangered butterfly
After the Housing Development Project Plan and Environmental
Impact Statement had been approved by the Albany Planning Board,
Save the Pine Bush took the Board, the Diocese and First Columbia
LLC to court, and lost. Judge Joseph Teresi of the State Supreme
Court ruled in favor of the Board. In their appeal to the Appellate
Division, Save the Pine Bush has carefully outlined legal and
scientific reasons why development in the region should not
Because the Karner Blue Butterfly was listed as an endangered
species by New York State (1977) and the Federal Government
(1992) under the Endangered Species Act, certain protection
rights have been extended to the butterfly in hopes of improving
its population size. Agencies working towards preserving and
improving Karner Blue Butterfly populations have made it clear
that any construction in this corridor will obliterate the chances
of Karner Blue restoration.
The Karner Blue Recovery Team (appointed by the US Fish and
Wildlife Service) has reported that the sanctity of the migration
corridor is "critical" to the Karner Blue Butterfly's
recovery within the Pine Bush, as well as throughout the state.
The Albany Pine Bush Preserve Commission stated that destroying
the corridor between Butterfly Hill and the rest of the Preserve
"would prohibit species migration . . . destroy one of
[the] last remaining chances of maintaining existing unprotected
corridors . . . and will have significant negative impacts on
adjacent Karner Blue Butterfly populations."
The State Environmental Quality Review Act recognizes the need
for migration corridors and the Appellate Division has upheld
this legislation in the past. In State of New York v. Sour Mountain
Realty (2000), the Appellate Division (2nd Department) found
that a fence built across a migratory route for a threatened
species of timber rattlesnakes was illegal. The fence blocked
the migratory path of the snakes and threatened their well being
as a species. Such a disturbance was considered a form of "taking",
defined by the Endangered Species Act as including "disturbing,
harrying or worrying an endangered species." The Karner
Blue Butterfly also migrates, and as an "endangered"
species, it is even more vulnerable to such stresses.
The Albany Pine Bush Preserve Commission contends that 13 acres
are required for the Karner Blue Butterfly migration corridor.
Yet the Albany Planning Board accepted the Diocese's plan of
only 10 undeveloped acres. These 10 acres are in the shadier,
Black Locust region of the parcel, which would not support as
many lupine plants.
Furthermore, within the Albany Pine Bush Preserve Commission
Implementation Guidelines used to manage the Albany Pine Bush,
the corridor region between Crossgates and the Preserve has
been designated as a "full protection" area. This
designation means that the area "should be acquired and
fully preserved and dedicated to the Albany Pine Bush Preserve."
In 1990, the Givinish Report revealed that 2000 acres is the
minimum amount of Pine Bush land needed for the Pine Bush and
the Karner Blue Butterfly. Currently, only 1850 acres are secured.
The Planning Board's approval for the development not only allows
consumption of vital corridor space, it also impedes the acquisition
of the 2000 fire manageable acres of Pitch Pine/scrub Oak land.
Because the Commission is the agency responsible for planning
and managing the Pine Bush, the Commission's findings are "entitled
to deference from the City of Albany Planning Board." By
allowing a "full protection" area to be developed
and failing to satiate the required acquisition of land, the
Planning Board has failed to give any deference to the Commission's
The last twist of the appeal submitted by Save the Pine Bush
litigators states that the Planning Board should not have been
the agency solely responsible for the approval. City of Albany
code establishes that the Pine Bush Site Plan Review District
The Review District also maintains that corridors should be
preserved. Furthermore, the District requires that 40% of the
lot should be open-space or landscaped and that certain distances
exist between structures. They also have restrictions about
leveling, lighting and maintaining vegetation. All of these
regulations would be illegally disregarded if the approval holds.
Printed in the August 2002 Newsletter