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Save the Pine Bush Forces Developer to Remove Water Lines from Pine Bush Preserve

by Lynne Jackson

In a victory for the Pine Bush, the developer of a luxury housing sub-division along the border of Guilderland and Albany has been compelled to remove illegally placed water lines from state-owned Pine Bush Preserve. Lewis B. Oliver, Jr., attorney for Save the Pine Bush, had received notice from the developer that he would remove the water lines on Monday, August 10, and would restore the disturbed Pine Bush Preserve land to its original condition.

The removal of the water lines, purportedly costing the developer $50,000 to install and $25,000 to remove, is a result of a lawsuit brought by Save the Pine Bush against the Albany Pine Bush Commission, the Department of Environmental Conservation, the Town of Guilderland and the City of Albany.

John Wolcott, Save the Pine Bush's deed and title expert, had in numerous letter, phone calls, and meetings, warned all of these government officials before the water lines were built, that the water lines encroached significantly on state-owned Preserve. and were illegal. Not a single government official paid any attention, until Save the Pine Bush went to court. Save the Pine Bush has a video tape of a Guilderland Town Board meeting where the Board rudely told Mr. Wolcott that there was no problem with the water lines, which was recently broadcast on television. The NYS Department of Environmental Conservation refused to consider that an encroachment on state Pine Bush Preserve land had occurred until Save the Pine Bush brought their lawsuit.

"This is a significant victory for the Pine Bush," declared Lynne Jackson, Board Member of Save the Pine Bush, "This proves that developers and government officials cannot simply take land in the Pine Bush Preserve to use for their own private purposes. The developer and the Town made a very costly mistake."

The water lines are located in Willow Street, which is in the City of Albany. The proposed housing sub-division is located along Willow Street, in the Town of Guilderland. Also, the Town approved water lines to be built in the City, which is illegal. Guilderland has no jurisdiction to approve water lines in Albany.

On August 4, in a hearing before State Supreme Court Judge George L. Cobb, the State of New York, the Town of Guilderland and developer Edward J. Pigliavento were compelled to admit that Lewis B. Oliver, Jr. had proven that developer Pigliavento illegally constructed a waterline in state-owned Pine Bush Preserve land. Further, Donald Zee, attorney for Pigliavento, claimed that because of an "error on my part" that his client cleared land adjacent to the preserve in defiance of court order.

Pigliavento has been trying to build six luxury houses since last October, and has been stopped by Save the Pine Bush's lawsuit. Pigliavento has defied all attempts to purchase the land at fair market value for addition to the Pine Bush Preserve.

Judge Cobb continued an injunction against construction of a sub-division in the Pine Bush and issued an order for a contempt hearing on illegal clearing of land by the developers.

Judge Cobb heard arguments on Save the Pine Bush's lawsuit regarding the illegal construction of water lines in State-owned Pine Bush Preserve land. Save the Pine Bush filed suit against the State of New York, Town of Guilderland, Albany Pine Bush Management Commission, City of Albany and developer Edward J. Pigliavento, Jr. for constructing the water lines for the Tera Court subdivision, located at the end of Willow Street, on State-owned land dedicated as forever wild as part of the Pine Bush Preserve.

Lewis B. Oliver, Jr. opened his statements by asking the court grant to a summary judgment to Save the Pine Bush because the State, the Town, the City, and the developer all admitted that the developer built the water lines in the Preserve illegally, which was the basis of Save the Pine Bush's original lawsuit.

Mr. Oliver continued by asking the Court for a contempt hearing because the developer cleared land while the injunction issued by Judge Cobb last February was still in place. Judge Cobb granted the order for a contempt hearing, which will be held on Thursday, August 13 at 9:30 am in the Greene County Court House, Main Street, Catskill, New York. All parties, including the developer's lawyer agreed that the clearing was in violation of the injunction.

Judge Cobb extended the injunction against any further construction for an additional 30 days.

Also at issue is the original approval of the sub-division, Tera Court. Mr. Oliver argued that because the developer did not file the original, signed, sub-division plat within the allowed 60 days that the approval for the subdivision is void.

This lawsuit has evolved into a very complex and multifaceted case.

Lawrence Rappaport of the Attorney General's office, represented the State of New York and the Albany Pine Bush Management Commission. Mr. Rappaport asked for an extension of the injunction until DEC could decide about granting a water permit to the developer. In papers submitted by the State, the DEC expert witness that "the vegetative clearing . . . is significant and must be rectified" and that "the clearing violates the requirements of the water supply permit provisions of . . . SEQRA. . . which prohibits the undertaking of any 'physical alteration related to an action' subject to SEQRA. . . The clearing preempts the ability of DEC Region 4 to look at the impacts of the water district extension and the subdivision to be served by the extension on the Pine Bush species on the project site and the impacts on the adjacent lands that have been dedicated to the Albany Pine Bush Preserve." Mr. Rappaport also stated that DEC had not been consulted during the original sub-division approval process in 1990.

Also at issue is the ownership of the northern half of Willow Street. First, John Tabner, attorney for the Town of Guilderland said that the Town owns the land. Then, the State of NY agreed with Save the Pine Bush that the Town does not own the land. Then the State said both that it does not know owns the land and that the land is an abandoned strip. After the State said the land is abandoned, then the Town suggested that the land would then belong to the developer.

According to Save the Pine Bush, there is no question that the State of New York owns the northern part of Willow Street at this point. Save the Pine Bush's expert witness, John Wolcott, researched the deeds to the land all the way back to its original patent granted by the province of New York in 1672.. The State owns the entire right-of-way of Willow Street in front of the Tera Court sub-division. The ownership of the road is significant, because the Town, the State and the developer want to enter into a stipulation to allow the developer to move the water lines from the Preserve to the northern part of Willow Street to settle the case. However, since the northern side of Willow Street is owned by the taxpayers of the State of New York and is part of the Preserve, this agreement does not settle the case.

Donald Zee, attorney for the developer, stated that Willie Janeway, executive director of the Albany Pine Bush Management Commission, is helping the developer's lawyer prepare his environmental assessment form for the water supply permit.

The Albany Pine Bush Commission designated this 13-acre site of the proposed Tera Court sub-division as full-protection.

Though the City of Albany was named as a party to the suit, no attorney was present to represent the City's interest. The City of Albany was named in the suit by Save the Pine Bush, because they allowed the Town of Guilderland to approve a water district that extended beyond the boundary of the Town and into the City. As a Town cannot approve a water district in a municipality outside its boundaries, Save the Pine Bush contends that the Water District Extension approved by the Town for the Tera Court sub-division is invalid.

As we go to press, oral arguments about a contempt hearing are planned on August 13.

Photographs of water lines being removed.

published Aug/Sept, 98 Newsletter

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