City of Albany Attempts to Sneak Legislation Past the Public Removing Land from the Pine Bush Preserve

ALBANY: The City of Albany tried to sneak in legislation at the last minute that would radically change the protection of the Pine Bush Preserve.

The Albany Common Council, in vote of 11-4, asked the NYS Legislature to pass a home rule bill to alienate 12.5 acres of protected Pine Bush Preserve in order for the land to be used to expand the City’s current landfill. Assemblyman John J. McEneny sponsored the bill in the NYS Assembly.

Despite the secrecy and lack of public notice, at the Monday, June 19 Common Council meeting, nineteen people spoke passionately against alienating Preserve land for the landfill expansion. Speakers included Christopher Hawver, Executive Director of the Albany Pine Bush Preserve Commission, Willie Janeway and Mark King of the Nature Conservancy, William Cook of Citizens Campaign for the Environment, Joe Gardner of the Sierra Club, and many members and supporters of Save the Pine Bush. Mr. McEneny, after a long session at the Assembly, also attended the Common Council meeting to listen to the public comments.

The 12.5 acres proposed for removal from the Preserve is located in Karner East. Karner East is considered the largest and best example of the pitch pine/scrub oak ecosystem that makes up the Pine Bush.

The Albany Pine Bush Preserve Commission staff characterized this 12.5-acre parcel as “an irreplaceable piece of the best.”

After the Common Council meeting, many speakers surrounded Mr. McEneny and asked him why he was sponsoring the bill. Mr. McEneny replied that he had been told by his lawyers that the City needed this bill passed before the City could begin the environmental review of the proposed landfill expansion.

Several people told Mr. McEneny that passing the bill before the environmental review could take place was not necessary, and that it was not true that the City needed this bill before beginning the environmental review process.

Mr. McEneny asked that we get him a legal opinion that stated that the State Environmental Quality Review Act (SEQRA) did not require alienation of Preserve land prior to the environmental review.

Michael B. Gerrad, attorney and author of many articles and books about SEQRA, wrote an opinion in which he stated, “SEQRA requires the consideration of alternatives to proposed actions, including, where at all possible, alternative sites. . . The only rationale I can imagine for deferring SEQRA review until after action by the Legislature is that it is uncertain whether the proposed expansion parcel is available until such action. But this is not a valid rationale. . . A central purpose of SEQRA is to inject environmental considerations in the decision-making process as early as possible. Alternatives may drop out as the process proceeds, but I am not aware of any authority that would allow deferral of the SEQRA process until the viability of certain alternatives, or even the applicant’s preferred action, had been established.”

Attorney Peter Henner, who filed Save the Pine Bush’s lawsuit with the City over the dedication of the Fox Run Mobile Home Park land to the Preserve, wrote an opinion which stated, “Enacting legislation, in advance of the SEQRA process, authorizing the alienation of certain land that is presently protected, forecloses other alternatives. Furthermore, the Legislative authorization of taking of a precious ecological resource, without the development of an adequate factual record through the SEQRA process, will constitute a justification for the city and the Department of Environmental Conservation to conclude that the state has determined that the Pine Bush parcel at stake is not worthy of protection.”

Two days later, the Daily Gazette wrote a scathing editorial, entitled, “Albany landfill deal has a funny odor.” The editorial began by saying, “Like a junkie in need of a fix — in this case the addiction is cash — Albany Mayor Jerry Jennings will stop at nothing in his quest to get yet another lease on life at the city’s Rapp Road landfill. Never mind that Jennings has been told more than once to forget it by the state Department of Environmental Conservation, which recognizes the ecological significance of the land he wants for his landfill expansion — 12.6 acres of the Pine Bush Preserve, one of the largest inland pine barrens in the world. The preserve may be less than one-fifth of its original size, but Jennings couldn’t seem to care less. And even though the city has yet to do the mandatory environmental quality review for its proposal, it thought nothing of sending a bulldozer into the preserve in late April to start road-prep work.”

Early Wednesday afternoon, Save the Pine Bush volunteers hand-delivered to every Assembly and Senate office a copy of the Daily Gazette article and Peter Henner’s legal opinion. Many Save the Pine Bush members, in response to an emailed Action Alert, called and emailed their Assemblymen and Senators asking them to oppose the bill.

By late afternoon, word was getting out that Mr. McEneny had tabled the bill, citing the fact that the legislation was not needed for environmental review to proceed on the landfill.

This is a small victory in the war to save the Pine Bush. But, much work needs to be done if we hope to save the Preserve from the ever-expanding landfill.