Save the Pine Bush Sues City of Albany Over Rezoning of Land

ALBANY, NY: Save the Pine Bush filed suit in New York State Supreme Court over the City of Albany Common Council’s approval of the Residence Inn Hotel and an Office Complex on Washington Avenue Extention in the Pine Bush in March.

Save the Pine Bush sued the City about two development proposals, a hotel proposed to be built next to the Karner Blue butterfly hill and an office complex on land designated as a full protection area.

“The Pine Bush, because it is a globally rare ecosystem, is an extremely valuable resource to the City. The City should not allow land speculators to make a fortune by destroying this beautiful, irreplaceable land,” said Lynne Jackson, volunteer secretary for Save the Pine Bush.

Stephen F. Downs is representing Save the Pine Bush in these cases.

In the two lawsuits, Save the Pine Bush contends that the Albany Common Council violated the New York State Environmental Quality Review Act (SEQRA) when it approved the re-zoning of land on Washington Avenue Extention from residential to commercial to allow the construction of a 124-unit Residence Inn Hotel and an office complex on 6.65 acres of land.

“The Final Environmental Impact Statement adopted by the Common Council in the hotel project was arbitrary and capricious, unsubstantiated by the evidence, incomplete, in violation of SEQRA, illogical and erroneous and completely and totally failed to adequately consider the effect of the proposed hotel on the rare and endangered species of plants and animals that live on or near the site,” said Jackson.

When the Common Council approved the re-zoning of the hotel site, it improperly determined that no “taking” of an endangered species (the Karner Blue butterfly) would occur. Only the US Fish and Wildlife Service (USFWS) can determine if a taking can occur but the USFWS was not permitted to investigate the hotel site. In addition, the Common Council did not take a “hard look” at the project, because they deferred any review of the findings of the USFWS until after the Final Environmental Impact Statement was completed, outside of public view.

In making its decision, the Common Council completely ignored the neutral scientific experts who presented evidence that the Karner Blue butterfly currently occupies the site. Instead, the Common Council relied completely on the developer’s expert, who has little training or experience with respect to the Karner blue.

The site for the proposed hotel was illegally cleared prior to the application to build the hotel. Because the site was illegally cleared, the Common Council should have considered the effect the proposed development would have on the site before it was cleared. The owner of the hotel site did not obtain a site plan approval before clearing the site, as required by City law.

The Common Council did not consider the cumulative impacts of other developments such as the landfill expansion. Indeed, though the City had applied for a landfill expansion over a month before the Common Council approved the rezoning for the hotel, the Common Council stated in its that the landfill expansion was “speculative”.

In 1992, the Appellate Division required the City of Albany to assemble a 2000 fire-manageable preserve in the Pine Bush before development can proceed on land that might otherwise be suitable for the preserve. In the hotel case, at the same time the City of Albany counted the Fox Run land as having been permanently protected in the Preserve, the City was applying to use the Fox Run land as an extension of its Rapp Road landfill. If the City had not adopted the fiction that the City had not applied for a permit to expand the landfill on to Fox Run, it would have had to consider whether subtracting the Fox Run land from the Pine Bush Preserve would leave the Preserve short of 2000 fire-manageable acres.

According to the lawsuit, in January, 2006, after Save the Pine Bush again sued the City over the landfill expansion, the City agreed to withdraw its application to expand the landfill onto Fox Run, but it claimed that it intended to apply to expand the landfill onto another parcel of land that had also supposedly dedicated to the Preserve. And the City claimed the right at any time to withdraw land supposedly protected for the Preserve to develop for its own purposes. By taking such a position, the City’s prior statements in numerous cases on the amount of land protected for the Karner Blue butterfly Preserve are essentially false, and amount to a fraud on the court. If the City of Albany is permitted to withdraw land previously placed in the Preserve, the City has misrepresented to the courts in all of the cases listed in the Findings Statement on the hotel project the amount of land actually preserved, and the court decisions were based on these misrepresentations.

In the case against the Common Council over the proposed office complex, the lawsuit states that the Common Council ignored the fact that a “full-protection” area of the Pine Bush was located on the proposed site. In addition, the Common Council decided to put off an environmental review of the project in violation of the State Environmental Quality Review Act.

This office complex is proposed to be built in front of the Daughers of Sarah Nursing home and is proposed to cover 6.65 acres of land, a significant size.

To read the legal papers, please go to:

Printed in the May/June 06 newsletter