written by Lynne Jackson
Creation of a Viable Preserve
The Applicant in the DEIS, goes to great lengths to show that a 2,000 acre fire-manageable Preserve has been attained. However, since the court cases listed by the Applicant, scientific research has shown that a viable preserve must be much larger than originally thought.
The Albany Pine Bush Commission’s goal for a viable Preserve, based on scientific research, is set at 4,610 acres, much more than the 2,000 fire-manageable acres originally thought needed by earlier studies. Since the Commission is a long way from attaining what it considers to be a viable Preserve, court cases which rule that achieving a viable Preserve should be taken into consideration in an environmental impact statement must be considered. Currently, there are only approximately 3,000 acres of land in Preserve, only 65% of land that is needed for a viable Preserve.
The Draft Environmental Impact Statement is inadequate because it does not address how the Albany Pine Bush Preserve Commission is going to be able to create a viable Preserve without this parcel.
The Courts have taken an intense interest in the preservation of the Pine Bush as demonstrated in the following cases:
The Courts mandate that configuration (shape and size) of the Preserve be considered in the SEQRA review.
The DEIS does not address the issues raised in the court decisions regarding shape and size of the Preserve.
Specifically, the Supreme Court ruled in Matter of Save the Pine Bush v City of Albany:
“While the proposed project for 40 Karner Road appears to maximize the attempt to harmonize development pressures with conservation goals while also reducing the cost to the City of Albany of acquiring preserve lands, the Court finds that respondents failed to comply with SEQRA by failing to consider the precise configuration of the preserve necessary to ensure survival of the Pine Bush ecology and the Karner Blue butterfly or how such configuration (and consequentially the specific parcels of land) would be acquired. Respondent City has been required to take a hard look at the cumulative impact of proposed projects upon the minimum preserve acreage necessary to ensure survival of the Pine Bush ecology and the Karner Blue butterfly (Matter of Save the Pine Bush v. City of Albany, 141 AD2d 949). Such requirement was imposed substantially after the proposed nature conservancy preserve configuration was prepared. Thus, it is clear that the nature conservancy preserve configuration is not equivalent to an empirically based determination of the acreage necessary to ensure survival of the various ecosystems and species of the Pine Bush. It does, however, appear that the necessary acreage to ensure survival cannot be determined in a vacuum; that is, the acreage to be preserved must also be configured in a specific manner and involve specific parcels of property.” [emphasis added].
The DEIS fails to consider the precise configuration of the preserve necessary to ensure the survival of the Pine Bush ecology. There is no discussion in this DEIS of the configuration needed for a viable Pine Bush ecosystem.
The Court continues to emphasize this point, in its decision:
“The City, in attempting to comply with prior Court decisions, engaged scientists to prepare a study entitled “Minimum Area Requirements for Long-Term Conservation of the Albany Pine Bush and Karner Blue Butterfly: An Assessment”. Such report was substantially relied upon by respondents in their final environmental impact statement and findings statements in which it was determined that the proposals would have no significant impact upon preservation of the Pine Bush ecology or the Karner Blue butterfly.
“The report is addressed almost exclusively to the acreage requirement for such preservation and addresses the configuration of such acreage in only the most conclusory fashion. Such treatment is clearly inconsistent with SEQRA requirements and the specific factual findings contained in the report. The panel determined that in the absence of aggressive fire management, an area of at least 10,000 acres would be necessary to sustain Karner Blue populations. However, the panel determined that with very aggressive fire management, which would be absolutely critical to the success of the preserve, roughly 2000 acres would be necessary. The methodology used in determining the area requires two separate 100 acre burn sites in each year for 10 years before reburning the first two areas. Such methodology appears to assume an ideal configuration which will allow such burns. However, the report also indicates that edge effects on similar ecological systems significantly reduce the effective size of such ecosystems. The report found that due to the shape of the preserve and the nature of adjacent lands, such edge effects will be very significant. Such factors show that the actual configuration of the preserve is absolutely critical to its effectiveness and may, in fact, be more important than area differences of up to 10%. Notwithstanding the critical importance of the configuration of the preserve, the panel report merely adopts the primary and secondary take lines of the nature conservancy proposal without any specific investigation directed to the precise configuration of such take lines, the nature of adjoining properties to such take lines and whether such adjoining property owners will permit aggressive fire management on adjoining preserve lands or on such adjoining property owners’ lands.
“A determination of the final configuration of the preserve based upon such considerations and respondents’ abilities to acquire relevant parcels must be made before respondents can determine whether any particular proposed activity may have an adverse impact on the Pine Bush ecosystem or whether all pending proposals will have a cumulative impact on the minimum preserve area necessary to ensure survival of the ecosystem.
“Accordingly, the Court finds that respondents failed to take a hard look at the actual preserve area or configuration necessary to ensure survival of the Pine Bush ecology and the Karner Blue butterfly. The petition is granted to the extent that the rezoning of 40 Karner Road and 300 Washington Avenue Extension is hereby vacated and the issues remanded to respondents for further proceedings consistent. ” [emphasis added]
The Appellate Division, Third Judicial Department upheld the Supreme Court Decision on the denial of the re-zoning of the above named parcels. The Appellate Division decision emphasized the importance of the Pine Bush, when it said,
“The judgment of Supreme Court should be affirmed. Prior decisions of this court and the Court of Appeals have established that the Pine Bush ecology, the Karner Blue Butterfly and the necessary minimal acreage required to provide for preservation of these concerns are relevant and important in the review of any SEQRA action in the Pine Bush area (see, Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 200, modfg 117 AD2d 267; Matter of Save the Pine Bush v City of Albany, 141 AD2d 949, 953, lv denied 73 NY2d 701; Matter of Save the Pine Bush v Planning Bd. of City of Albany, 130 AD2d 1, 3-4, supra).. . . ”
The Appellate Division continued, addressing the issue of the size and configuration of the preserve:
“. . . Subsequent to these decisions three scientists finished their report finding that an approximate minimum of 2,000 acres is necessary for the survival of the Karner Blue Butterfly and the Pine Bush ecology, but that this minimum acreage would not be effective unless a comprehensive fire-management policy was implemented. The three scientists endorsed a five-lobe configuration designed to avoid the danger of a single catastrophic fire that could destroy the entire preserve and agreed that the secondary and primary preserve lines established by the Eastern New York Chapter of the Nature Conservancy contained nearly all the pine barrens currently existing.
“Completion of the scientists’ report and an acceptance of the 2,000 minimal acreage condition was not adequate for a complete analysis of the environmental impact of the zoning amendments. It was essential for a proper analysis to assess whether the minimum acreage could be acquired in the absence of the subject parcels or provide a reasoned elaboration as to why such an assessment was not required.
“Examination of the record reveals that respondent approved the amendments when only 1,700 acres had been acquired for the preserve. Although the City had plans in place to increase the acreage in the preserve, petitioners presented evidence that the City’s reliance on the Nature Conservancy for further acquisitions was misguided and that the subject parcels could potentially be incorporated into the preserve. The probability, likelihood or expectation of acquiring the necessary acreage is not addressed in the environmental impact statements (which cover the reasons the properties are not necessarily suitable for acquisition into the preserve), nor in the SEQRA findings statements (which restate the same findings).
“The determinations lack a reasoned elaboration concerning the manner in which the necessary 2,000 acres would be acquired in the absence of the subject parcels, which was an environmental concern that had to be addressed as it was essential to perpetuate the Pine Bush ecology and the Karner Blue Butterfly. Thus, Supreme Court properly reviewed whether respondent took a hard look and, upon its conclusion that respondent did not do so, properly annulled the determinations (see, Matter of WEOK Broadcasting Corp. V Planning Bd. of Town of Lloyd, 79 NY2d 373, 383; Akpan v Koch, 75 NY2d 561, 570).
The DEIS does not address how the necessary preserve will be acquired in the absence of this parcel as was required by the Appellate Division.
The Appellate Division also addressed the issue of whether or not the Supreme Court’s decision amounts to a regulatory taking. The Court found that it does not:
“Karner Pines’ claim that Supreme Court’s decision amounts to a regulatory taking by virtue of its imposition of the requirement that the configuration of the preserve be more fully considered and planned before the zoning amendments are allowable is rejected. A regulatory taking challenge is not generally applicable to a court’s interpretation of statutes or regulations, or to any burdens imposed as a result of the court’s decision; rather, such a challenge is typically directed at statutes or regulations which restrict the use of property in some form (see, e g Seawall Assocs. v Citv of New York, 74 NY2d 92, cert denied sub nom. Wilkerson v Seawall Assocs., 493 US 976; Kalikow 78/79 . v State of New York, 174 AD2d 7, appeal dismissed 79 NY2d 1040). In any event, a regulatory taking challenge fails on the merits where the regulation advances a significant State interest (see, Lucas v South Carolina Costal Council, ___ US , -, 112 SCt 2886, 2893-2894; Seawall Assocs. v Citv of New York, suDra, at 107) and imposition of remedial measures as a condition for SEQRA approval has already been held to advance a significant State interest (see, Matter of Save the Pine Bush v Citv of Albany, 141 AD2d 949, supra).” [emphasis added]
The Applicant must address in the DEIS how a viable Pine Bush Preserve will be achieved if this parcel is developed.
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Email Lynne Jackson at lynnejackson@mac.com