All Development Halted – Emergency Appeal Succeeds!

All Development Halted – Emergency Appeal Succeeds!

All Development Halted
Emergency Appeal Succeeds!

by Daniel W. Van Riper, Jan./Feb. ’93

In a unanimous decision, the Appellate Division of the NYS Supreme
Court upheld a lower court ruling earlier this year that overturned
zoning changes for the 40 Karner Road and Touhey parcel at 300
Washington Ave. Ext., both located in central parts of the Pine

“Congratulations to us!”, said Lew Oliver, SPB’s attorney, flushed
with victory once again. “This is the third environmental impact
statement that the City of Albany has commissioned that’s been thrown
out of court. This is going to stop development in the Pine Bush for

In the decision, Justice J. P. Mikoll pointed out that although
numerous court rulings had established that 2000 burnable acres must
be put aside for a preserve, the City had approved the zoning changes
“when only 1700 acres had been acquired for the preserve”.

Furthermore, the City’s plan to increase acreage was “misguided”, and
that the “probability, likelihood or expectation of acquiring the
necessary acreage is not addressed in the environmental impact

This victory was made possible by the emergency appeal to SPB members
last May. Back then, the NYS Supreme Court handed down a decision
throwing out these zoning changes. Within 24 hours, the City of
Albany, intent on destroying the Pine Bush at any cost, filed an

This quick move by the City was an attempt to slip through the courts
on a technicality, even though they were clearly in the wrong. The
City had calculated that SPB, already overburdened financially with
other cases, could not raise $5000 within the 30 day limit for
challenging the appeal.

Thanks to the generosity and commitment of SPB members, we raised the
full amount within 4 weeks, and papers were filed with the court just
in time. Everyone who contributed on such short notice can take
personal pride in this victory.
The court made the significant ruling that the City can allow no
development in the Pine Bush until they determine which parcels of
land are needed, how the land will be acquired, and how to
fire-manage them. Furthermore, before making any more zoning changes,
the City must supply “a reasoned elaboration” why parcels slated for
development should not be acquired for preservation.

The decision comments on the importance of the Pine Bush boundaries
in Guilderland and Colonie. This opens the way for SPB to begin
litigation in these municipalities.

The court also ruled that throwing out the zoning change did not
constitute a “regulatory taking” of privately owned land. According
to the decision, “a regulatory taking challenge fails… where the
regulation advances a significant State interest” such as requiring a
proper environmental impact statement.

This is of importance because the US Supreme Court, which was packed
with politically correct Republicans during the Reagan-Bush years,
recently upheld a “taking” argument in South Carolina. That state,
unlike New York, does not have a SEQRA statute that takes precedent
over privately owned interests, so the two cases are not the

Ann Williams, former executive director of the Nature Conservancy,
filed an important affidavit that maintained convincingly that the
City has no plan in place to purchase land for a preserve. This
requirement is one of the conditions for the DEC to grant a permit
for expanding the City of Albany dump on Pine Bush land.
Of equal importance were affidavits by scientists John Shuey and John
Cryan which laid out the need for a minimum of 2000 burnable acres
that are connected, in order for the Pine Bush to maintain itself as
an ecosystem.

The court finding that only 1700 acres have been preserved, was based
on hard evidence presented in an affidavit written by SPB member
Jerry Mueller. This impressive piece of work was of decisive
importance in the final decision.

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