The Karner Blue vs Crossgates Mall
Secret Meetings and SEQRA Violations
by Lynne Jackson
Save the Pine Bush is pleased to announce that we joined with our famous Pine Bush resident, the Karner Blue Butterfly, and sued Pyramid Crossgates and the Zoning Board of Appeals of the Town of Guilderland over the theater expansion at the Crossgates Maul.
This is the first time we have ever filed a suit with the Karner Blue as a petitioner. But, it is so clear that the construction of this cineplex will kill the butterflies, that we knew the butterflies would not mind joining us in the lawsuit.
Crossgates Maul is earning its name by mauling even more of the ecosystem. Pyramid is proposing to construct this 18 theater expansion right next to the "Butterfly Corral" which it was required to protect when the maul was first built in 1984. The additional theaters will directly impact the butterflies.
Prior to construction of the maul in 1984, the largest known colony of Karner Blue butterflies based in the largest single patch of blue lupine known in the world was discovered on a hill of approximately five acres on the site of the proposed mall. After environmental hearings for permits to construct the maul, the administrative law judge recommended that the permits to build the mall be denied in part because of the existence of the butterfly on the site. The judge was overruled by the then DEC Commissioner. Instead, DEC required that Crossgates enclose the five acres hill area and create a "management area," which Crossgates refers to as the "butterfly corral."
Since the construction of the mall, this butterfly hill has increased in importance. Survival of this site is essential to the long-term survival of the Karner Blues in the Pine Bush. In 1979, there were only about 80,000 Karner Blues in the Pine Bush (as opposed to the millions that lived there earlier this century). By 1990, the population had crashed to 500 to 1000 and by 1995, only 100 to 200 butterflies remain in the Pine Bush.
The butterfly hill is crucial to the survival of the Karner Blue in the Pine Bush.
The Karner Blues need the sun
So what does Crossgates want to do? Build a theater complex practically on top of the butterfly hill. There are many hazards to the butterfly from the construction of this theater complex. Foremost is shading. The theater complex would shade the butterfly hill during crucial periods in the early spring, when the larvae are growing. It has been shown that increased shading will result in increased mortality of the butterflies. Shading will lower the temperature of the larvae, causing the larvae to grow slower resulting in increased predation of the larvae. Our butterfly expert has stated that the butterflies depend on direct sunlight to control their metabolic rates and the ability to digest food. Both the adult and larval butterflies are homotherms, meaning that they actively control their metabolic rate (body temperatures) by basking in the direct sunlight to warm up or avoiding sunlight to cool down. Metabolic rates directly determine the rate of larval development. Rapid digestion of food is dependant upon maintaining optimal body temperature. This is especially important in the early spring, where optimal body temperatures may be as high as 15-20 degrees above ambient temperature.
Unnaturally extended development periods are well known to increase mortality in larval butterflies. These pressures are so intense that they are thought to be the primary evolutionary drivers in the host plant selection and habitat use in many species of butterflies.
So, what does all this mean? Increased shading would cause the butterfly larvae to be colder, thus lengthening the time it takes for them to turn into butterflies and exposing them to increased hazards. Given the tiny number of butterflies left in the management area, even affecting a few individuals could devastate the population.
Even the Albany Pine Bush Management Commission observed that "If the butterfly population is lost, that is a negative environmental impact which would be impossible to mitigate."
SEQRA (the State Environmental Quality Review Act) prohibits "taking" of endangered species without a permit. "Taking" is defined as direct and indirect action to harm a species. So, if the law were to be followed, Crossgates couldn't say, "oh, gee, we just wanted to build a bunch of theaters, we didn't really want to hurt the butterfly" and expect to get off. Taking is taking whether you meant to or not. Taking is defined as "pursuing, shooting, hunting, killing, capturing, trapping, snaring, and netting fish, wildlife, game, shell fish, crustacea and protected insects, and all lesser acts such as disturbing, harrying or worrying, or placing, setting, drawing, or using any net or other devise commonly used to take any such animal."
Shading out the Karner Blue to cause the larvae to be too cold to grow is a taking. Crossgates needs a permit to kill the butterflies, and it does not have one.
On August 7, 1996 at 7:30 pm, the Guilderland Zoning Board of Appeals (ZBA) announced that it would have a public meeting on the first floor on Town Hall on the Crossgates application. That day, Lewis Oliver, the Save the Pine Bush attorney, had delivered to the ZBA important letters and documents from Save the Pine Bush and our scientists and experts. At approximately 7:10 pm, Mr. Oliver arrived at the Town Hall and found no one on the first floor. Wanting to check on whether the ZBA had received the important letters and documents, Mr. Oliver went upstairs to find Mr. Donald Cropsey (the Town of Guilderland engineer) or a member of his staff. Instead, he found all of the members of the ZBA sitting around a conference table, looking at the Save the Pine Bush documents, and he could overhear them talking about the Crossgates application. As Mr. Oliver walked over to the door of the conference room, Mr. Cropsey headed him off and told Mr. Oliver that the documents were received and that the ZBA members were discussing them.
This is a clear violation of the NYS Open Meetings Law. No announcements of this meeting were ever posted, and it was obvious that no members of the public were invited to attend. The only way a public body can close a public meeting to the public is by announcing the general topic of the closed meeting and by voting on having such a meeting in public. In addition, there are only a few limited topics that can be subjects of closed meetings, and discussing comments of an environmental group about an application to build a theater is not one of them.
At the ZBA meeting, after Mr. Oliver and several experts presented information to the ZBA, Lindsey Childs, a member of the ZBA, read text that was prepared ahead of time (we believe the text was prepared at the secret meeting) to address the concerns of Save the Pine Bush. Then, the ZBA took out a huge rubber stamp, and used it to approve Crossgates application to further maul the Pine Bush.
Printed December, 1996,/January, 1997