Save the Pine Bush, You can fight City Hall and win!

Touhey Builds While Save the Pine Bush Goes to Court

Albany, NY - After twelve years of stopping Charlie Touhey from building the "Pine East" office complex on Washington Avenue Extension in front of the Dunes housing development, Touhey has won the current round and is rapidly bulldozing the Pine Bush and putting up his buildings.

Charlie Touhey sought a zoning change from residential to commercial Pine Bush in order to build his two office buildings on this 12-acre site. The Common Council voted to approve the re-zoning (Council Members Carol Wallace, Shawn Morris and Richard Conti voted with Save the Pine Bush and against the re-zoning). Save the Pine Bush sued the City of Albany in Supreme Court over its approval of the Pine East office complex. In January, a few weeks before he was to preside over the Amado Diallo trial, Judge Teresi ruled against Save the Pine Bush.

This case contains a very important issue for the State Environmental Quality Review Act (SEQRA). One of the important aspects to SEQRA is giving the public an opportunity to comment on proposed developments, which forces a municipality to take "a hard look" at the proposed project. In this case, two reports submitted by the developer to the City were submitted at the very end of the approval process, which precluded any public comment on these reports. One report was prepared by the developer's engineer and addressed the issue of whether 2,000 fire-manageable acres of Pine Bush were in the Preserve, and the other report was a traffic study of the area.

Both of these reports were submitted just in time for the Findings Statement, the document adopted by the City accepting the Environmental Impact Statement and stating conditions which the City placed on the approval. This Findings Statement relied on these two reports. It is not surprising that the developer's engineer should find that there were 2,000 fire-manageable acres in the Preserve, while Save the Pine Bush's research and the Albany Pine Bush Preserve Commission's studies showed that there were approximately 1700 fire-manageable acres in the Preserve. However, at no time were members of the public allowed to comment on this report or show documents to refute it before the Findings Statement was voted on by the Common Council. Save the Pine Bush won a lawsuit against the City over re-zoning the Touhey parcel on just this issue in 1992.

Save the Pine Bush prepared to appeal the case to the Appellate Division. To raise the money for the appeal, Save the Pine Bush volunteers went door-to-door last summer canvassing residents of the Point of Woods, Pinehurst and the Dunes developments. About a fourth of the money needed for the appeal was raised in this manner.

The deadline for the appeal was August 28. Save the Pine Bush lawyer, Lewis B. Oliver, Jr., had prepared all the necessary papers. However, when Mr. Oliver went to obtain a copy of the record (all of the court papers filed with the first lawsuit) which was necessary for the appeal, Mr. Oliver found that they were not at the Court. The winner of the case, in the instance, the City of Albany, files the record with the Court. The City had not filed these papers, even though they knew that Save the Pine Bush intended to appeal the Supreme Court decision.

Because the record was not available, Mr. Oliver was able to obtain an extension of the deadline. Unfortunately, before Mr. Oliver could file the suit, or obtain a stop work order, Mr. Touhey began to furiously build. Work crews have been on the site ever since, working dawn until dusk, seven days a week, weather permitting.

The record was eventually made available, and Mr. Oliver filed suit in the Appellate Division. Then, he asked the Court for an injunction against further construction. As of today, the Court had not yet made a decision on the injunction or the appeal.

This case is extremely important in regards to the New York State Environmental Quality Review Act (SEQRA). If the Supreme Court decision is allowed to stand, the opportunity for the public to comment on development projects may be severely compromised. Developers could submit additional reports just before the Findings Statement, after the time when the public is allowed to comment or offer other studies which may refute the developers reports.

In the lawsuit Save the Pine Bush won over this very same office complex proposal in 1992, the Appellate Division ruled that "It was essential for a proper analysis to assess whether the minimum acreage could be acquired in the absence of the [Pine East Office Complex] or provide a reasoned elaboration as to why such assessment was not required." (Save the Pine Bush v. Common Council of the City of Albany, 188 A.D. 2d 971 973, 3d Dept. 1992).

published December 2000/January 2001 Newsletter
Last Updated 11/30/00


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