by William Engleman

SCHENECTADY: Save the Pine Bush is considering an appeal of a recent State Supreme Court ruling dismissing a lawsuit brought against the Town of Clifton Park Planning Board and DCG Development Co.

Save the Pine Bush and 11 citizen-petitioners sued the Town of Clifton Park Planning Board over site plan approvals for a 142,000 square foot flexspace warehouse project on land along Wood Road in the Town’s northeast corner. In dismissing the case, a State Supreme Court Justice said Save the Pine Bush and the citizens – including several residents of Clifton Park – have no standing or right to sue, barring them from having their day in court.

In granting approvals for the industrial project on land containing habitat for the endangered Karner blue butterfly, the Town flagrantly violated the NY State Environmental Quality Review Act (SEQRA). “If Save the Pine Bush cannot sue to protect the federally endangered Karner blue, who can?,” asked Lynne Jackson, volunteer for Save the Pine Bush.

People may be shocked to discover that case law has severely limited citizens’ right to sue the government over violations of SEQRA. The case law following the 1991 Society of Plastics decision has dramatically restricted the right of citizens to sue municipalities over SEQRA law violations. One result of these restrictive standards for legal standing is that local governmental boards can avoid strictly following the SEQRA law. Jackson noted, “Without citizen suits, there is no other way to force municipalities to follow the law by taking a ‘hard look’ at harmful environmental impacts of land use projects, and properly avoiding and reducing the impacts.”

The suit filed September 27 claimed harmful environmental impacts to the Karner blue butterfly and its habitat at the site weren’t properly considered by the Planning Board. The site was part of a roughly 800 acre tract included in a Generic Environmental Impact Study (GEIS) required by the Clifton Park Planning Board in 1988. Plaintiffs claim the ‘flexspace’ project of DCG Development Co. does not conform to the GEIS Findings the Planning Board issued in 1991, and doesn’t follow certain other SEQRA provisions.

The Town of Clifton Park and DCG, rather than responding to the specific allegations made, submitted motions seeking a dismissal of the case. After oral argument held on November 3, Schenectady County Surrogate and Acting Supreme Court Justice Barry D. Kramer granted the dismissal motions, finding that none of the petitioners, including Save the Pine Bush, possessed legal standing to bring the case.

During the oral argument on November 3, Peter Henner, the attorney representing the plaintiffs, stated, “If the only people to have standing are those individuals who happen to live in very close geographical proximity to the site, then no one may have standing to assert claims on behalf of precious environmental resources. Save the Pine Bush alleges that the actions of the developer DCG have destroyed one of the few remaining sites of the endangered Karner blue.”

Henner continued, “Our position is that Save the Pine Bush does have legal standing to bring this case, since all populations of the endangered Karner blue in NY are at risk, and this population and its habitat site are not being required to be restored, as the 1991 Wood Road Final GEIS Findings Statement required.”

Henner noted, “If Save the Pine Bush has no standing to sue, then no conceivable organization or association would be found to have legal standing.”

The motions filed on behalf of the Town also sought to deny a citizen residing just 0.56 miles away from the site legal standing. This person lives closer to the project site than some 98% of all the thousands of Town residents living in the Ushers Road/Exit 10 area.

According to Henner, “The end result is to deny an organization with an outstanding track record of effective advocacy for the habitat of this very species – the Karner blue butterfly- any chance of obtaining a court review of harmful impacts of Town approvals at Wood Road. The decision leaves those actually injured with no remedy.”

Jackson noted, “Statewide, the Karner blue butterfly exists in just 4 counties in eastern New York State. We are the premiere citizens’ based organization concerned with saving Karner blue habitat in upstate NY. Save the Pine Bush has never been denied legal standing before.”

She continued, “Saving the Karner blue in Saratoga County is essential to recovering the Karner blue from the brink of extinction both in NY and as a species. When we save Karner blue habitat, we are also saving a vulnerable ecosystem of rare, threatened and endangered animals and plants, plus important open space and unique natural beauty.”

Jackson added, “Save the Pine Bush as an organization has welcomed any interested residents of Saratoga County, and in fact we have scores of members who live there. This decision leaves the most experienced advocacy group for the Karner blue in the Capital District unable to defend its own interests by defending the species and its ecosystem from harm.”

Whether Karner blues continue to exist in Saratoga County will have a long-term impact on their fate in the Albany Pine Bush, according to Jackson. “The Clifton Park sites near Ushers Road, including at Wood Road, are the closest occupied habitat sites north of the Albany Pine Bush in Glacial Lake Albany,” she said.

Jackson continued, “We need to make sure that the imminent extinction of Karner blues in Clifton Park is halted and reversed. The Town should be required to follow SEQRA which this development plan does not do.”

Town resident and petitioner William Engleman said, “This ruling sends a chilling message to everyone living in Country Knolls, and all residents of the Exit 10 area of Clifton Park. The message is that when harmful impacts of industrial development along Wood Road, right across the Northway from Country Knolls aren’t properly addressed by the Planning Board, you will have no legal recourse to obtain a court’s review of any approval there.”

Two of the eleven individual petitioners reside in Country Knolls west of the Northway, as do some 99% of all residents of the Exit 10 area, according to Engleman. “By denying legal standing to these people, one of whom lives just 0.56 miles from the site, the Town is saying it can insulate its actions from a legal challenge by any citizen or association of citizens at Exit 10 who would be adversely affected, whether by pollution, noise, ruined habitat, visual impacts or harm to aquifers or wetlands along Wood Road.”

Engleman also maintained that, “The logic of the Town’s motion to dismiss this type of case, by saying we have no standing, denies virtually all residents in a vast area of Town their right to a day in court on the merits. It’s undemocratic and unjust.”

Published in the December 06/January 07 Newsletter