Memorandum of Law, January 17, 2006

Save Our Main Street Buildings v. Greene County Legislature, 293 A.D.2d 907 (3d Dept. 2002) leave to appeal denied, 98 N.Y.2d 609 (2002)…………………………………………………………………………………………………………………….. 7, 8

Save the Pine Bush v. City of Albany, 141 A.D.2d 949 (3d Dept. 1987)………………………………………………………………………………………………………………………… 12

Save the Pine Bush v. New York State Department of Environmental Conservation,

289 A.D.2d 636 (3d Dept. 2001)…………………………………………………………………………………………………………………. 2, 3, 12

Skenesborough Stone v. Village of Whitehall, 229 A.D.2d 780, 781 (3d Dept. 1996)………………………………………………………………………………………………………………………….. 7

Society of Plastics v. Suffolk County, 77 N.Y.2d 761 (1991)……………………………………………………………………………………………………………… 4,5,6,8,9

Steele v. Town of Salem Planning Board, 200 A.D.2d 870, 872 (1974)………………………………………………………………………………………………………………………… 8

Sun-Brite Car Wash v. Zoning Board of Appeals, 69 N.Y.2d 406 (1987)………………………………………………………………………………………………………………………… 5

Town of Coeymans v. City of Albany, 284 A.D.2d 830, 833-834 (3d Dept. 2001)………………………………………………………………………………………………………………………….. 7

Town of Henrietta v. Department of Environmental Conservation, 76 A.D.2d 215, 225 (4th Dept. 1980)………………………………………………………………………………………………………………………… 11

Williams v. Gallatin, 229 N.Y. 248 (1920)…………………………………………………………………………………………………………………. 14, 16

NEW YORK STATUTES

Environmental Conservation Law § 46-0101…………………………………………………………………………………………………………………….. 12

Environmental Conservation Law § 46-0103…………………………………………………………………………………………………………………….. 12

General Municipal Law § 51………………………………………………………………………………………………………………………. passim

PRELIMINARY STATEMENT

In this hybrid Article 78 proceeding and taxpayer lawsuit under § 51 of the General Municipal Law, an environmental organization and several of its members seek to: 1) enjoin the City of Albany from siting a landfill on property originally acquired from the Fox Run Mobile Home Park for dedication to the Albany Pine Bush Preserve and 2) compel the City to dedicate the land to the Pine Bush Preserve.

In the Article 78 proceeding, petitioners maintain that the preservation of this land was an explicit mitigation condition imposed by the New York State Department of Environmental Conservation (“DEC”) under the State Environmental Quality Review Act (“SEQRA”), as a condition under which the City obtained a landfill permit in 2000. Petitioners/plaintiffs also maintain that a permittee cannot break a commitment to provide a specific mitigation measure under SEQRA.

Some of the petitioners are also asserting claims as plaintiff taxpayers in the City of Albany, under § 51 of the General Municipal Law. Plaintiffs maintain that the land was acquired for parkland purposes, and is now imbued with a public trust. As discussed at length in Point III below, land acquired for parkland can not be alienated for other purposes without the approval of the state legislature. Plaintiffs assert that the use of land acquired for park purposes for landfill expansion constitutes an illegal act, and seek to enjoin such use.

Because the City has publicly announced its intention of utilizing this land for landfill expansion, and because the City’s application for a new permit is presently pending before DEC, petitioners/plaintiffs are seeking a preliminary injunction enjoining the City’s application, pending the final determination of this Court.

STATEMENT OF FACTS

In the late 1990s, the City of Albany applied for a permit to expand its existing landfill, located near Rapp Road in the City of Albany. The City sought permission to construct and operate an interim landfill at Rapp Road, which consisted of both a vertical and horizontal expansion of the existing landfill. The City’s permit application involved a 23 acre parcel, consisting of an immediate 11.5 acre parcel and an additional 7.6 acre expansion to be commenced in 2005. A variance from DEC’s landfill regulations, 6 NYCRR Part 360, was needed because the proposed landfill was located over a principal aquifer (see Save the Pine Bush v. New York State Department of Environmental Conservation, 289 A.D.2d 636 (3d Dept. 2001)).

After three Environmental Impact Statements, DEC completed the SEQRA process, made a findings statement, and issued a permit on February 29, 2000. The permit imposed a mitigation measure that was adopted in the Third Supplemental Final Environmental Impact Statement; the acquisition of 60 acres of land located in the Fox Run Mobile Home Park (hereafter referred to as the “Fox Run parcel”), for dedication to the Albany Pine Bush Preserve Commission (“the Commission”). The City of Albany was to submit a schedule for the completion of this purchase within 30 days of the issuance of the permit.

In order to acquire this property, the City needed to obtain an option for acquisition which was held by the Nature Conservancy. The Nature Conservancy transferred its option to the City, for the express purpose of enabling the City to acquire the Fox Run parcel for inclusion in the Pine Bush Preserve. The Nature Conservancy transferred its option on April 17, 2000, less than two months after the issuance of the permit. The City acquired the property in the summer of 2000, and initially indicated that 40 acres of undeveloped land in the mobile home park would be dedicated by December 31, 2000 (Petition ¶37, Exh. E). However, more than five years later, the City has still not dedicated the property to the Commission.

In previous litigation pertaining to the 2000 landfill expansion, the Third Department noted: “the City has taken substantial steps towards satisfaction of a Department mitigation measure requiring the City to purchase the 60 acre Fox Run Estates Mobile Home Park and dedicate the property to the Pine Bush.” Save the Pine Bush v. New York State Department of Environmental Conservation, 289 A.D.2d at 639. The Commission’s 2002 Management Plan treated this land as protected (see Petition, ¶ 57, Exh. K). The land provides a crucial corridor link between the western and eastern parts of the Albany Pine Bush, whose preservation is considered a crucial mitigation measure for the 2000 expansion (see Petition ¶¶ 33-35, Exh. C, including color map of expansion site).

However, rather than fulfill its commitment to dedicate this land, the City has now applied for a further extension of the Rapp Road landfill onto the parcel that should have been dedicated to the Commission in 2000.

Save the Pine Bush, an environmental organization with a long history of advocating for the preservation of Pine Bush lands, has a number of members who recreate in the Pine Bush, and who are concerned about the preservation of Pine Bush habitat. Save the Pine Bush, and the individual petitioners/plaintiffs bring this action to enjoin the City from proceeding with its plans to expand the landfill onto land that has previously been earmarked for inclusion in the Pine Bush Preserve.

POINT I

PETITIONERS/PLAINTIFFS HAVE STANDING TO MAINTAIN THIS ACTION

Plaintiffs have standing under GML § 51

Obviously, the plaintiff individuals have statutory standing to commence the taxpayer action under § 51 of the General Municipal Law. Plaintiffs allege that they meet the low standard of property ownership required for standing under the statute.

Petitioners have standing to assert a SEQRA challenge

“In New York courts, the now-established test for standing in cases of SEQRA challenges is the liberal two-part test set forth in Dairylea Cooperative v. Walkley, 38 N.Y.2d 6, 9 (1975) ‘all that an objector needs to show [is] that the [challenge] will in fact have a harmful effect on the petitioner and that the interest asserted is arguably within the zone of interest to be protected by the statute’”, Society of Plastics v. Suffolk County, 77 N.Y.2d 761, 785 (1991), dissenting opinion of Hancock, J. However, since the decision of the Court of Appeals in Society of Plastics, defendants have frequently raised standing objections, with some success. Nevertheless, petitioners in this case plainly have standing to assert injuries under SEQRA, even under the post-Plastics decisions of appellate courts.

Save the Pine Bush is an environmental organization that was formed more than 27 years ago for the specific purpose of protecting the unique ecology of the Albany Pine Bush. Save the Pine Bush has led more than a hundred hikes, ski trips, and other excursions into the Pine Bush. The organization has held numerous educational programs pertaining to Pine Bush ecology, and has been a well-known litigant, challenging many proposed developments which would negatively impact Pine Bush habitat. The organization has never been denied standing to maintain actions brought to vindicate concerns with respect to proposed projects in the Pine Bush area. Furthermore, members of Save the Pine Bush live in close physical proximity to the Rapp Road facility. Other members of Save the Pine Bush regularly recreate on Pine Bush lands by hiking, skiing, bird watching, and other activities.

If anyone has standing to enforce the applicability of a mitigation measure imposed under SEQRA in the Pine Bush, it is Save the Pine Bush and its individual members. If Save the Pine Bush, despite its continuous acts of advocacy for this unique parcel of land, educational programs, fundraising, and previous litigation, and despite having members with a vital environmental interest in the Pine Bush, does not have standing, then we truly have a condition where no one could possibly meet any applicable test for standing to commence such a lawsuit. The Third Department has strongly implied that standing will not be denied, where, as here, “a denial of standing to petitioner will insulate the governmental action from judicial review”, Otsego 2000 v. Planning Board of Town of Otego, 171 A.D.2d 258, 261 (3d Dept., 1991).

Petitioners have a “special injury” sufficient for standing

Society of Plastics held that “we have long imposed the limitation that the plaintiff, for standing purposes, must show that it would suffer direct harm, injury that is in some way different that the public at large”, 77 N.Y.2d at 774, citing with approval, Sun-Brite Car Wash v. Zoning Board of Appeals, 69 N.Y.2d 406 (1987). In Sun-Brite, Chief Judge Kaye, the author of the majority opinion in Society of Plastics, wrote for a unanimous court: “standing principles, which are in the end matters of policy, should not be heavy-handed; in zoning litigation, in particular, it is desirable that land use disputes be resolved on their own merits rather than by preclusive, restrictive standing rules . . . While something more than the interest of the public at large is required to entitle a person to seek judicial review – the petitioning party must have a legally cognizable interest that is or will be affected by the zoning determination – proof of special damage or in-fact injury is not required in every instance”. Furthermore, “an allegation of close proximity alone may give rise to an inference of damage or injury that enables a nearby owner to challenge a zoning board decision without proof of actual injury”. 69 N.Y.2d at 413-414.

Individual petitioners own property in close proximity to proposed landfill

Even after Society of Plastics, courts have continued to rely upon the Court of Appeals’ unambiguous statement “in deciding whether an owner has standing to ask the Court to review SEQRA compliance, the question is whether it has a significant interest in having the mandates of SEQRA enforced. An owner’s interest in the project may be so substantial and its connection to it so direct or intimate as to give it standing without the necessity of demonstrating the likelihood of resultant environmental harm. For even though such an owner cannot presently demonstrate an adverse environmental effect, it nevertheless has a legally cognizable interest in being assured that the decision makers, before proceeding, have considered all of the potential environmental consequences, taken the required ‘hard look’, and made the necessary ‘reasoned elaboration’ on the basis of their determination”. HAR Enterprises v. Town of Brookhaven, 74 N.Y.2d 524, 529 (1989), cited after Society of Plastics in Lordo v. the Board of Trustees of Munsey Park, 202 A.D.2d 506, (2d Dept. 1994), Patterson Materials Corp. v. Town of Pawling, 221 A.D.2d 608, 609 (2d Dept. 1995), and Skenesborough Stone v. Village of Whitehall, 229 A.D.2d 780, 781 (3d Dept. 1996).

More recently, the Third Department has noted: "The allegation that each lives in close proximity to the proposed project coupled with their allegations that they will be adversely affected by the project are sufficient to create a presumption that [these petitioners] will be adversely affected in a way different from the public at large." Town of Coeymans v. City of Albany, 284 A.D.2d 830, 833-834 (3d Dept. 2001) citing McGrath v. Town Board of North Greenbush, 254 A.D.2d 614, 616 (3d Dept. 1998), leave to appeal denied 93 N.Y.2d 803 (where the court held, an allegation that petitioner lived within 500 feet of the site, and would suffer harm from increased noise, traffic and "degradation of the character of the neighborhood" sufficient to demonstrate standing).

In Save Our Main Street Buildings v. Greene County Legislature, 293 A.D.2d 907 (3d Dept. 2002), leave to appeal denied, 98 N.Y.2d 609 (2002), the Third Department acknowledged that it had recognized standing on a basis of impairment of a scenic view from a party’s residence, citing Steele v. Town of Salem Planning Board, 200 A.D.2d 870, 872 (1974), leave to appeal denied, 83 N.Y.2d 757 (1974), but nevertheless rejected a claim of standing on the basis of a factual finding that the individual petitioners’ residences were not within sight of the project, and that any impacts would therefore be no different than for the public at large. 293 A.D.2d at 909.

Save Our Main Street Buildings is distinguishable from the instant case, because here petitioners specifically allege that they will be directly impacted by the landfill in their backyards. These impacts will not only be visual, they will also result from odors, increased traffic, and deprivation of recreational use.

Petitioners will be deprived of an important recreational resource

"Use and enjoyment of the site at issue is clearly sufficient to establish standing under [the National Environmental Policy Act] and the same rule should apply under SEQRA, although the issue has not been extensively litigated". Gerrard, Ruzow and Weinberger, Environmental Impact Review in New York, p. 7-96. The Pine Bush Preserve is an important recreational resource for the Albany community, and impairment of this resource by the construction of a landfill upon land that is crucial to establish a corridor between the two portions of the preserve is clearly an environmental harm. However, the question can be asked "Can an injury to use and enjoyment of a public resource also show an injury distinct from that of the public at large?" Ibid. p. 7-96.

It could be argued that every citizen of New York State has an interest in preservation of the Pine Bush, and that therefore no one has standing to raise a SEQRA challenge, because no individual or organization has a specific injury separate from the general public. However, petitioners respectfully submit that such an interpretation is logically absurd and would lead to the conclusion that no one would ever have standing to challenge an environmental harm.

Instead, petitioners respectfully maintain that their individual activities, and the activities of Save the Pine Bush are sufficient to demonstrate a distinct injury. Save the Pine Bush has a particular interest in the Pine Bush lands, as demonstrated by its regularly-scheduled recreational activities located in the Pine Bush, its educational programs, speakers, and long history of advocacy. Furthermore, its members, as well as individual petitioners, specifically allege that they regularly recreate in the Pine Bush, while the general public presumably does not. These activities are sufficient to demonstrate a special injury, such that the proposal at issue creates a special injury to them, sufficient to warrant a grant of standing to maintain the instant petition.

Save the Pine Bush has organizational standing

Save the Pine Bush easily meets the organizational tests for standing set forth in Douglaston Civic Association v. Galvin, 36 N.Y.2d 1, 7 (1974) and Society of Plastics, 77 N.Y.2d 761 (1991). In Douglaston Civic Association, the Court of Appeals held that an organization, to establish standing, must establish 1) the capacity to assume an adversary position, 2) demonstrate that its position is fairly representative of the community of interests, 3) the issue is within the zone of interests that the organization is established to perfect, and 4) membership in the organization is open to all residents and property owners in the relevant neighborhood. Save the Pine Bush’s long history of advocacy demonstrates all four of these criteria. Save the Pine Bush, for over 27 years, has been the leading advocate of preservation of the Pine Bush, and membership is open to all individuals and organizations that share its concerns.

Society of Plastics created an additional three-part test for organizational standing: 1) whether individuals in the organization have standing in their own right, 2) whether the interests of the suit are germane to the purpose of the organization, and 3) whether the suit can proceed without the individuals asserting their claims as individuals 77 N.Y.2d at 775.

Once again, Save the Pine Bush obviously meets these three criteria. Individual members who have standing in their own right are mentioned as individual petitioners, although this lawsuit could proceed without them, and be prosecuted in the name of Save the Pine Bush. It is self-evident that lawsuits of this nature, given the long history of Save the Pine Bush litigation, are very much a part of the purpose of the organization.

POINT II

MITIGATION MEASURES IMPOSED UNDER SEQRA ARE ENFORCEABLE

There is virtually no case law with respect to the question of whether a mitigation measure imposed under SEQRA can be enforced via litigation. However, as a matter of logic, fairness, and common sense, petitioners respectfully maintain that the City’s commitment to dedicate the Fox Run parcel to the Pine Bush Preserve Commission should be enforceable via the instant Article 78 proceeding.

Obviously, SEQRA specifically authorizes agencies to impose mitigation measures to minimize environmental impacts. ECL 8-0109(2) (f). It is well settled that agencies have the authority to impose "conditions upon an applicant’s project to minimize or avoid environmental impacts unrelated to any specific permit standards or criteria." Town of Henrietta v. Department of Environmental Conservation, 76 A.D.2d 215, 225 (4th Dept. 1980). If the legal requirement to impose mitigation measures is to have any force, then the courts must have the power to direct the implementation of a mitigation measure adopted pursuant to the SEQRA process.

Most litigation with respect to mitigation measures involves claims that mitigation measures go too far, but courts have also held that additional mitigation measures may be necessary, including, in a case between the same parties as the instant litigation, a requirement that the City of Albany make a determination of the minimum acreage needed for the preservation of the Pine Bush ecology, Save the Pine Bush v. City of Albany, 141 A.D.2d 949 (3d Dept. 1987), leave to appeal denied, 73 N.Y.2d 701 (1988).

In the instant case, a mitigation measure was properly adopted, after due consideration by the lead agency responsible for accepting the Environmental Impact Statement, the New York State Department of Environmental Conservation. The mitigation measure of land dedication at issue was specifically cited in Save the Pine Bush v. Dept. of Environmental Conservation, 289 A.D.2d 636, 639 (3d Dept. 2001) as part of the rationale for the decision that it would be unfair to overturn DEC’s grant of the present permit to the City of Albany.

Now, four years after the decision, it would be unfair for the City to abrogate its commitment to perform the mitigation measure that was a condition of its permit. Accordingly, petitioners should be permitted to enforce the mitigation condition that the City dedicate the Fox Run parcel to the Albany Pine Bush Preserve Commission.

POINT III

USE OF THE FOX RUN ESTATES PARCEL FOR LANDFILL EXPANSION CONSTITUTES ALIENATION OF LAND DEDICATED FOR PARK PURPOSES

The City of Albany acquired the Fox Run parcel pursuant to a permit condition for the specific purpose of dedicating the lands to the Albany Pine Bush Preserve Commission. The Commission was established pursuant to Article 46 of the Environmental Conservation Law, for the specific purpose of managing and preserving Pine Bush lands. These lands are managed as open space, and contain numerous hiking trails, butterfly habitat preservation, bird watching, and other recreational uses.

Lands that are to be included in the Pine Bush Preserve are "lands in the City of Albany and Towns of Guilderland and Colonie in the County of Albany characterized by the growth of pitch pine and scrub oak pine barrens, vernal ponds and/or the presence of sand dunes which are dedicated for protection and beneficial public use. . ." Environmental Conservation Law § 46-0103.

The Legislature has declared that these lands are "especially valuable as an open-space resource and, if properly managed, as a passive recreation area and educational laboratory . . . the Legislature hereby declares it to be in the public interest to protect and manage the Albany Pine Bush by establishing an Albany Pine Bush Preserve consisting of dedicated public and dedicated private land . . . for purposes of its protection and controlled and appropriate recreation and education uses." ECL § 46-0101.

The Commission maintains Pine Bush lands for "park" purposes. "A park is a pleasure ground set apart for recreation of the public, to promote its health and enjoyment", Williams v. Gallatin, 229 N.Y. 248 (1920). "In the 80 years since Williams, our courts have time and again reaffirmed the principle that parkland is impressed with the public trust, requiring legislative approval before it can be alienated or used for an extended period for non park purposes" Friends of Van Cortlandt Park v. State of New York, 95 N.Y.2d 623, 630 (2001).

Although the City never fulfilled its legal obligation to dedicate the land to the Commission, the land is impressed as parkland because it was acquired as part of a legal obligation to dedicate it as parkland. The City’s actions in acquiring the option from the Nature Conservancy, and in agreeing to the permit condition that the land be dedicated, are sufficient to "manifest unequivocally an intention to dedicate a municipally owned property to public use as a public park." Gewirtz v. City of Long Beach, 69 Misc. 2d 763, 770 (Supreme Court Nassau County, 1972), affirmed on opinion below, 45 A.D.2d 841 (2d Dept. 1974).

The restriction that land in the Pine Bush be managed for recreational activities, and be used for recreational and educational activities, effectively makes this land parkland, subject to the common law protection for parkland. "Public parks occupy a special position insofar as the public at large is concerned and this is borne out by numerous expressions to that effect found in the decisions of the state”, Gewirtz, 69 Misc. 2d at 775 (citations omitted).

Under the unique circumstances of this case, the land acquired by the City of Albany from the Fox Run Estates was effectively dedicated to park purposes, and cannot be used for any other purposes without legislative approval. Accordingly, the use of this land for the purposes of landfill expansion is expressly prohibited.

POINT IV

ALIENATION OF PARKLAND CAN BE ENJOINED BY A TAXPAYER ACTION UNDER § 51 OF THE GENERAL MUNICIPAL LAW

Section 51 of the General Municipal Law, which was initially enacted in 1909, authorizes taxpayers who own an assessed valuation in excess of $1,000 to maintain an action against any "officers agents commissioners and other persons acting or who have acted for or on behalf of any "municipal corporation" [including cities] . . . to prevent any illegal official acts. . .".

In this case, the City of Albany, by the actions of its officials and agents, is seeking to alienate land which has been acquired and effectively dedicated for the purposes of parkland. Such an action is illegal, and can be enjoined by a taxpayer action. Indeed, one of the early leading cases involving the alienation of parkland, Williams v. Gallatin, 229 NY 248 (1920) was brought as a taxpayer action under this same section, §51 of the General Municipal Law, seeking to enjoin the use of New York City’s Central Park for non-park purposes.

A taxpayer action was also permitted to enjoin the issuance of bonds for the establishment of a water district which was proposed to be established within lands that had been designated as “forever wild” and part of the forest preserve, Kenwell v. Lee, 261 N.Y. 113 (1933). In Kenwell, as in Williams, the basic principle was established that a taxpayer action can be brought to enjoin illegal action which would adversely affect lands that had been dedicated to park purposes, or had been designated as forever wild by the State Constitution.

Inasmuch as the lands at issue in this case have been designated for park purposes, a taxpayer action lies to enjoin their alienation, and to prevent the City of Albany from constructing a landfill upon such lands.

POINT V

PLAINTIFFS/PETITIONERS ARE ENTITLED TO A PRELIMINARY INJUNCTION

Petitioners and plaintiffs seek a preliminary injunction, enjoining the City of Albany from proceeding with its application for any landfill permit that proposes to use the Fox Run property for landfill expansion. The standards for granting a preliminary injunction are well established: the moving party must establish: 1) probability of success on the merits, 2) irreparable injury in the absence of an injunction, and 3) the balance of equities are in its favor, Aetna Insurance Co. v. Capasso, 75 N.Y.2d 860 (1990).

Petitioners/plaintiffs are likely to succeed on the merits

In this case, the City of Albany is attempting to unilaterally abrogate a commitment that it made to mitigate an adverse environmental impact by dedicating a crucial portion of land to the Albany Pine Bush Preserve Commission. It is undisputed that the City promised to dedicate this land, and that such dedication was required as a condition of its permit.

Therefore, petitioners are likely to succeed on the merits of the Article 78 proceeding because mitigation conditions imposed as part of a SEQRA review are properly enforceable, and the City’s failure to comply with the mitigation provision is clear-cut (see Point II above).

Furthermore, inasmuch as the land was to be used for parkland, petitioners are also likely to succeed with respect to their claim that the City should be enjoined from alienating the land by using it as a landfill (see Point III above).

Finally, inasmuch as the alienation of this land constitutes an illegal act, for the reasons set forth in Point IV above, plaintiffs are also likely to succeed on their claims under § 51 of the General Municipal Law.

Accordingly, petitioners/plaintiffs are likely to succeed on the merits of the petition.

Plaintiffs/petitioners will suffer irreparable injury in the absence of an injunction

If the City of Albany is permitted to construct the landfill, the possibility of preservation of the land as Pine Bush habitat and dedication to the Albany Pine Bush Preserve will be lost. Therefore, an injunction is needed to ensure that the landfill construction is not permitted to commence.

As of January 2006, the City is beginning the process of applying for a permit from the New York State Department of Environmental Conservation. This permit application process will involve an environmental review, including an assessment of possible adverse environmental impacts of the landfill expansion. The City will commit tens of thousands of dollars in legal and expert technical consulting fees to pursue this application, and in its efforts to persuade the Department of Environmental Conservation to grant a new permit to the City. In order to succeed, the City will need to persuade DEC to rescind the permit condition and mitigation measure that DEC previously imposed, to require the dedication of the land.

The issue before DEC may be the factual question of whether the requirement of land dedication is still desirable, given the City’s claim to need ever more landfill space at Rapp Road. In contrast, the question before this Court is the legal enforceability of the commitment made in 2000 to dedicate the land. If the application process is permitted to continue, and DEC continues to evaluate the City’s efforts to weasel out of its previous commitments, there is a danger that the DEC will permit the City to repudiate its commitment and repeal the requirement of a land dedication. If this is permitted to happen, interested parties, such as petitioners/plaintiffs, will be irreparably injured because they will lose the benefit of the conditions granted in 2000.

Furthermore, the continuation of the DEC permit process, which may also necessitate involvement of the petitioners/plaintiffs in DEC administrative hearings, will require a tremendous commitment of financial resources on the part of petitioners/plaintiffs to participate. The money that the petitioners and plaintiffs will be required to spend in the adjudicatory proceedings, which will far exceed the legal costs of the instant proceeding, will not be recoverable in any subsequent judicial proceeding.

Accordingly, petitioners/plaintiffs will suffer irreparable injury if DEC’s processing of the City’s landfill permit application is permitted to continue.

The balance of equities are in petitioner’s/plaintiff’s favor

Petitioners/plaintiffs, as well as the general public, were promised that the land from the Fox Run parcel would be dedicated to the Albany Pine Bush Preserve Commission, to establish a corridor between two established sections of the preserve. This commitment was made in 2000, and has not yet been fulfilled. There is no reason offered, nor can there be any valid reason offered, for the City’s excuse and delay.

Although the City may assert its continuing need for ever more landfill space, the City has had years to address this problem, and could and should have addressed it without waiting until 2005, when it could say that it needed the land that had previously been committed to the Pine Bush Preserve. The City’s alleged need for this land cannot override the basic concerns of fairness of requiring the City to honor its responsibilities and obligations under the permit issued in 2000, and to take the necessary action to permanently protect this crucial area of the Pine Bush.

POINT VI

The undertaking required under CPLR 6312 and under § 51 of the General Municipal Law should be set in a nominal amount

CPLR § 6312 (b) requires the provision of an undertaking "in an amount to be fixed by the Court" as a precondition for the grant of a preliminary injunction. Similarly, § 51 of the General Municipal Law requires plaintiffs to provide an undertaking, in an amount to be established by a Justice of the Supreme Court, in a bond in the amount of $250 “justifying payment of a sum of $5,000”.

Although the amount of the bond and undertaking is to be established by the Court, petitioners/plaintiffs respectfully maintain that the court should require no more than a nominal undertaking, in the amount of the statutory minimum required by the General Municipal Law. The grant of a preliminary injunction in this case does not create any significant possibility of financial harm to the City of Albany.

The injunction will prevent the City from proceeding with its application for a new landfill permit for a period of several months, pending the final determination of the merits of this action. If the action is ultimately unsuccessful, the damages to the City will be limited to damages, if any, that can be claimed as a result of the delay of landfill permit construction. No personal damages will be suffered by any defendant, nor will the City itself suffer any actual damages.

Furthermore, the instant litigation is commenced for public interest purposes, and will save the City from wasting money on an illegal attempt to obtain a new landfill permit. The court should recognize these purposes in setting the amount of the bond and undertaking, as well as the basic factors warranting the grant of the injunction in the first place.

Conclusion

Petitioner/plaintiffs are entitled to an order enjoining the City of Albany from proceeding with its application for a new landfill permit to expand the Rapp Road landfill, and to an order directing the dedication of the Fox Run parcel to the Albany Pine Bush Preserve Commission. Plaintiffs/petitioners are entitled to a preliminary injunction, restraining the City from proceeding with its application for a landfill permit until this lawsuit is finally determined on the merits.

DATED: January 17, 2006

Clarksville, New York

Peter Henner, Esq.

Attorney for Petitioners/Plaintiffs

P.O. Box 326

Clarksville, NY 12041-0326

Telephone: (518) 768-8232

In 1990, then DEC Commissioner Thomas Jorling, upon granting approval of an earlier expansion of the Rapp Road landfill, declared "I cannot envision any set of circumstances that would justify the extension of the life of this interim landfill or the approval of another such facility in any other part of the Albany Pine Bush”. New York State Department of Environmental Conservation Commissioner’s Decision, In the Matter of the Application of the City of Albany, February 13, 1990.