A Stunning Victory! Zoning Approvals Overturne
A Stunning Victory!
Zoning Approvals Overturned
by Daniel W. Van Riper, Mar./Apr. 92
March 5-State Supreme Court Justice George L. Cobb today overturned
two zoning approvals by the City of Albany in the Pine Bush at 300
Washington Ave. Ext (Charlie Touhey’s office development in front of
Dunes) and 40 Karner Road (the proposed Karner Office Park just south
of Pinehurst). This ruling may set a precedent which would bring all
development proposals currently under consideration to a complete
SPB Attorney Lewis Oliver, triumphant once again, feels that this all
but guarantees that the Woodlands at Pine Ridge zoning change about
to be considered by the Common Council will be thrown out of court.
The City may have to begin a new environmental review, a process that
could take years.
In a four page statement, Justice Cobb ruled that the City “failed to
comply with the State Environmental Quality Review Act (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.” Furthermore, the City failed to show how “specific
parcels of land would be acquired” for a Pine Bush preserve.
Please call or write your alderman! The re-zoning hearing for the
proposed Woodlands at Pine Ridge office park [Editor’s note, see page
31] has not been scheduled, but is coming up soon. This piece of
property absolutely must be preserved in order for the Pine Bush to
survive as an ecosystem. If you’ve been wondering what you can do to
help save the Pine Bush from destruction, this is a little thing that
will go a long way. It will only take a few minutes, and Albany will
be a better city for your trouble.
There’s no need to give a speech, discuss SEQRA statutes, or try to
persuade. Just let your Alderman know that you are concerned about
Pine Bush development, that you are firmly opposed to the Woodlands
at Pine Ridge office development, that you will be watching how he or
she votes on the proposed re-zoning, and will keep this in mind on
election day. And thanks for their time.
Phone calls and letters like this usually give politicians a case of
the willies, especially if there’s a lot of them.
Below is the SPB Common Council Scorecard, followed by a list of
Aldermen’s addresses and phone numbers on page 7. Please keep these
tucked in a drawer for future reference. If you don’t know your ward,
call City Hall information at 434-5075.
Save the Pine Bush’s March Victory
a Detailed Analysis
by Lynne Jackson, May/June 92
We stopped the presses on our last newsletter to include a brief
article about our major victory in court over the Pine Bush. But we
did not have time to describe our victory completely.
Save the Pine Bush sued the City of Albany over its zoning approval
of two office developments, Karner Office Park, 40 Karner Road
(located on 20 acres on Route 155, near the Pinehurst development),
and the Charlie Touhey Office Park, 300 Washington Ave. Ext. (located
on 12 acres in front of the Dunes). State Supreme Court Justice
George L. Cobb overturned the two zoning approvals.
Zoning for office developments in the Pine Bush is a special
designation called C-PB for Commercial Pine Bush. There is a
requirement that a small percentage of each development parcel be set
aside for preservation. All developments in the Pine Bush (housing
and commercial) must also meet the requirements of SEQRA, the State
Environmental Quality Review Act.
Judge Cobb observed in his decision that the 40 Karner Road project
appears to attempt to balance development pressures with conservation
goals and, reduce the City’s cost of land acquisition. However, the
city failed to comply with SEQRA by not considering the shape of the
preserve necessary to ensure the survival of the Pine Bush ecology
and the Karner Blue Butterfly.
The City has been required by a previous Court to take a “hard look”
at the cumulative impact of proposed developments 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). This requirement by the Court was
imposed after the Nature Conservancy’s proposed preserve design was
prepared. Therefore, Judge Cobb ruled that the Nature Conservancy’s
proposed preserve design is not adequate to determine the amount of
land necessary to ensure survival of the Pine Bush ecosystem. The
amount of land necessary to ensure Pine Bush survival must be
configured in a specific manner and involve specific parcels of
Judge Cobb further states in his decision that the City, in
attempting to comply with prior Court decisions, engaged scientists
to prepare a report entitled “Minimum Area Requirements for Long-Term
Conservation of the Albany Pine Bush and Karner Blue Butterfly: An
Assessment.” This report was used by the developers in their final
Environmental Impact Statements (EIS). In the findings statement of
the EIS, the developers claimed that their proposal would have no
significant impact on the preservation of the Pine Bush ecology or
the Karner Blue Butterfly.
This report addressed almost exclusively the acreage required for
preservation, and only addressed the configuration or shape of the
preserve in a cursory manner. The scientists determined that in the
absence of aggressive fire management, an area of at least 10,000
acres would be necessary to sustain the Karner Blue. However, they
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 to determine the preserve area required was
this: the preserve requires two separate 100 acre burn sites each
year for 10 years before re-burning the first two areas. This
methodology appears to assume an ideal preserve shape which will
allow such regular burns.
An ideal preserve shape is one in which the “edge effects” are
minimized. The shape of the preserve determines how much “edge”
surrounds the preserve or the length of the border between preserved
and un-preserved land. This “edge” or border is significant in
determining how much land can be burned. Controlled burns can only be
performed 50 feet from a private property line (unless the land-owner
gives prior written permission-which is often unattainable). If, for
example, the preserve were a perfect circle, more land could be
burned than if the preserve has an uneven shape with many bumps and
inlets. “Edge effects” are how the shape of the preserve impact on
the amount of land that can be burned (the more edge, the less land
that can be burned).
The City’s report indicates that edge effects on ecosystems similar
to the Pine Bush significantly reduces the effective size of the
ecosystem. The report found that due to the shape of the preserve and
the nature of adjacent lands, these edge effects will be very
Judge Cobb continued by observing that these factors show that the
actual shape of the preserve is absolutely critical to its
effectiveness. Ignoring the critical importance of the configuration
of the preserve, the report merely adopts the Nature Conservancy’s
preserve proposal without any specific investigation directed to the
precise shape of the preserve, the nature of adjoining properties,
and whether the adjoining property owners will permit aggressive fire
management on their land.
Judge Cobb decided that a determination of the final shape of the
preserve based on the edge effects and the City’s ability to acquire
relevant parcels must be made before the City can determine whether
any particular proposed project 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
the survival of the ecosystem.
Accordingly, Judge Cobb found that the City failed to take a hard
look at the actual preserve area or configuration necessary to ensure
the survival of the Pine Bush ecology and the Karner Blue Butterfly.
The re-zoning of 40 Karner Road and 300 Washington Ave. Ext. was
vacated and the issues returned to the City for further proceedings
consistent with this decision.