ALBANY, NY: On March 22, the Supreme Court Appellate
Division, Third Department turned down Save the Pine Bush’s
appeal of Supreme Court Judge Joseph Teresi’s decision against
Save the Pine Bush’s lawsuit over 300 Washington Avenue Extension.
The land in question is owned by Charles Touhey, and is located
on Washington Avenue Extension in front of the Dunes housing
project. Touhey originally proposed building a office complex
on the site in 1988. The land was zoned residential, and to
build offices, Touhey had to obtain zoning approval from the
City of Albany. After the Common Council gave approval for the
re-zoning, Save the Pine Bush sued.
SPB Won First Case
In December, 1992, the Appellate Division confirmed the Supreme
Court’s ruling overturning the re-zoning. Save the Pine Bush
had won, and stopped Touhey from building. This decision was
extremely important for Pine Bush litigation, because it was
this case that stated that for the Pine Bush to survive, 2,000
acres of fire-manageable Pine Bush must be preserved.
SPB Won Next Common Council Vote
Touhey was not happy that his office complex had been stopped,
and re-submitted his office complex proposal to the Common Council
in 1995. After a series of cancelled hearings, hearings quickly
scheduled, and residents denied the opportunity to speak (see
the July 1996 SPB newsletter), the Albany Common Council listened
to the residents of the Dunes housing project, and denied Touhey’s
zone change in August, 1996. This was Save the Pine Bush’s second
victory over Charlie Touhey’s proposed office complex. At this
point, both the courts and the Common Council denied the re-zoning.
Third Time Around Was Not the Charm
But, Touhey is persistent. Just a few months after his defeat
by the Common Council, Touhey decided to try another tactic.
He placed in each mailbox of each resident of the Dunes a notice
of a public hearing. This notice stated "Charles Touhey is planning
to construct Affordable Housing for first time homebuyers on
his 12 acres on Pitch Pine Road. The houses will start at $65,000.
Buyers must be renters [sic] who would like to own their first
house . . . Please attend this meeting as this project affects
Now, the interesting thing about this flyer was that under
the announcement was a beautiful, color diagram of the old office
complex proposal. This color diagram was in different shades
of green and had a pocket park, sidewalk, bus shelter on it
and flowing lines that showed all the green space. A lovely
drawing. Under that diagram was an ugly black and white line
drawing of the "New Proposal" with little tiny houses on square
lots and "Limits of Tree Clearing" marked out.
Basically, Touhey was saying, let me build my office complex,
or you are going to get “affordable housing” built in your neighborhood.
Thus began our last battle, which, ultimately, Save the Pine
In May, 1999, after hearings before both the Zoning Committee
and the Common Council at which no one but the developers spoke
in favor of the office complex, the Common Council voted to
approve the re-zoning. The vote was 3 against the re-zoning,
12 in favor. The three Council Members who stood up for the
Pine Bush were Carol Wallace, Richard Conti and Shawn Morris.
Save the Pine Bush filed an article 78 lawsuit against the
City of Albany, contending that the City was arbitrary and capricious
in its decision to approve the office complex, and that the
City violated the State Environmental Review Act (SEQRA) because
it allowed evidence to be introduced at the very end of the
SEQRA process, when the public had no opportunity to counter
the information. In the Findings Statement for the Final Environmental
Impact Statement, the City cited two reports, the “Updated Preserve
Acreage Study” (written by the Touhey’s engineer) and the “Traffic
Update”. These documents were never put into the record before
being mentioned for the first time in the Findings Statement,
denying the public the right to comment on or object to these
documents. In addition, Save the Pine Bush sued because the
2,000 acre fire-manageable preserve has not yet been achieved,
as was required in the 1992 ruling.
In January, 2000, Supreme Court Judge Teresi ruled against
Save the Pine Bush. He made the ruling just before he presided
over the trial of the police officers who shot Amadu Diallo.
He ruled that the 2,000 acre preserve had been achieved.
Save the Pine Bush went to file an appeal of Judge Teresi’s
decision. However, the City of Albany had not filed papers in
the Court that SPB needed to perfect the appeal. During this
delay, Touhey began to build. SPB lawyer Lewis B. Oliver filed
for an injunction to stop the construction, but the Appellate
Division denied the injunction. Touhey built half of his office
The Appellate Division dismissed the appeal on the issue of
mootness, meaning that since Touhey built part of his office
complex, that the questions raised in SPB’s lawsuit are no longer
However, SPB did win on one issue raised in our appeal — the
Appellate Division did not decide the issue of whether 2,000
fire-manageable acres have yet been achieved. The Appellate
Division decision holds that whether the Preserve consists of
more than 2000 fire-manageable acres could be decided in the
context of future rezoning or development applications. This
means that the decision by Judge Teresi is not a binding precedent
for future cases and that achievement of the minimum 2000 acre
fire-manageable Preserve can still be raised in future rezoning
of development applications.
End of A Long Road
Save the Pine Bush did stop this development for 12 years,
which shows that sometimes justice will prevail for a while.
What is so incredible to me is that though the Courts denied
the original zone change, and the Common Council denied the
next zone change, that this office park proposal, virtually
unchanged from the proposal made in 1988, was approved. Touhey’s
land should have been purchased and added to the Preserve.
Printed in the May/June 2001 Newsletter