Save the Pine Bush Goes to the Appellate Division Over Butterflies in Clifton Park

On February 15, oral argument was held in the appeal by Save the Pine Bush and 11 people who sued the Town of Clifton Park Planning Board in September 2006 after the board gave approval to seven industrial warehouses and hundreds of parking spaces adjacent to and in Karner blue butterfly habitat. The plaintiffs were all denied standing by Acting state Supreme Court Justice, Barry Kramer who granted the Town’s and developer’s motions to dismiss the case in November 2006.

Standing is the right to be able to bring a lawsuit to a court, the right to “stand” in court.

Save the Pine Bush decided that the standing issue must be appealed. How can it be that Save the Pine Bush cannot sue to protect the endangered Karner Blue butterfly?

Five judges heard the appeal in the Appellate Division. Save the Pine Bush had eleven supporters in attendance to watch the court proceedings.

When Save the Pine Bush lawyer, Peter Henner, began his argument, one of the judges, Judge Cavanaugh, said to him, “Aren’t you arguing that if Save the Pine Bush doesn’t have the right to sue, then no one does?” This was a very succinct summary of the Save the Pine Bush position.

Peter Henner also argued that one of the purposes of the State Environmental Quality Review Act (SEQRA) law was to allow the public to participate in the environmental review process. It was the intention of this law to promote public participation. By not allowing us standing to sue over SEQRA decisions we do not agree with, that defeats the openess promoted by the law.

For example, if someone poured garbage in the street, and this affected everyone, then no one would have the standing to sue, under the current interpretation of standing for SEQRA cases.

The focus of the oral arguments at the Appellate Division were on the standing issue.

Other issues in the case include the town Planning Board’s having accepted a bogus management plan for a tiny 0.91 acre portion of an over 37 acre land parcel. Neither Save the Pine Bush nor any citizen of the Town was allowed to ask questions about this management plan the night its existence was announced, followed by its adoption a few minutes later together with issuance of a Negative Declaration under SEQRA and preliminary site plan approval. Likewise, once having read the document, no oral comments from Save the Pine Bush and other concerned people were accepted before the final site plan OK the following month.

Accepting this plan – which disregarded the existence of more, occupied Karner blue habitat nearby across Wood road – failed to achieve any of the objectives of the Findings of a 1991 Generic Environmental Impact Statement done for the same area. At the time of the 1988-1991 “Wood Road GEIS”, the Karner blue population in this small area of Clifton Park (two sub-populations along Wood Road and a third nearby south of Ushers Road) exceeded the number of Karner blues found in the thousands of acres in the entire Albany Pine Bush! The lupine at the subject Wood Road site continued to expand onto the current warehouse project site until the mid-1990’s.

In 1991, Save the Pine Bush had submitted written comments calling for the protection of the Wood Road Karner blue habitat sites, during the GEIS process that concluded that year. Save the Pine Bush pointed out the importance of these populations of the Karner blue to its potential reintroduction in the Albany Pine Bush, should it ever become extirpated from the Pine Bush. The population sites near Northway Exit 10 are the recently occupied habitats closest to the Albany Pine Bush, heading north in Glacial Lake Albany, with the next closest being in the Saratoga Springs area some 15 miles beyond.

What has happened in the years since 1997? The sites along Wood Road have been allowed to overgrow with aspens and various other woody species shading and choking out the wild lupine. This has dramatically reduced the extent and quality of habitat for the Karner blue and allied species like the state threatened frosted elfin butterfly.

The endangered Karner blue’s resulting severe population losses at the Wood Road site have been attributed to “natural succession” by the developer’s biological consultants, despite a signed but never followed 1994 agreement to manage and dedicate a conservation easement over the sites pursuant to a DEC delineation. The agreement itself was created as a condition of an earlier industrial subdivision and site plan approval which encroached on the habitat site near Ushers Road.

The Town’s 1991 GEIS called for the Karner blue to be reintroduced to sites from which it may have subsequently become absent and for such sites to be restored and managed to return to their1991 condition at the time of later project consideration, as conditions of approval. None of this was required in the 2006 approval by the Clifton Park Planning Board, nor was any Supplemental EIS called for, which the GEIS also required for projects that did not conform with impact thresholds established by the ‘91 Findings Statement.

The position of the lawsuit by Save the Pine Bush against the town and developer DCG Development Co., is that by approving a worthless “management plan”, Clifton Park is ratifying the extirpation of an endangered species in violation of SEQRA and its own GEIS Findings.

Joining the plaintiffs and supporters in court at the Appellate Division were reporters for the Times-Union and Daily Gazette. Both papers published coverage the next day. Also present was the reporter from the Clifton Park-based southern Saratoga weekly edition of the Saratogian, the Community News. The case has also garnered repeated mention by Gazette writer Stephen Williams in his Saturday “Off the Northway” column recently.

The Appellate Division’s decision on our appeal of the denial of SEQRA standing in the Wood Road Karner blue butterfly habitat case is anticipated sometime this spring.