Steve Downs Tells the Legal History of Save the Pine Bush at SPB’s 40th Birthday Party —Part 1

by Lynne Jackson

ALBANY, NY: Lynne Jackson, a volunteer for Save the Pine Bush, gave a brief introduction and described how SPB started. On the night of February 6, 1978, as the “Blizzard of 78” was pounding the Capital District, a couple dozen brave souls nevertheless ventured to the Albany Public Library to speak out at a public hearing on four proposed developments in the Pine Bush. Prior the the hearing, a few people met first at an old fashioned restaurant on Lark Street. The group could not believe the city would actually hold the hearing in this terrible weather, as there was six inches of snow in Washington Avenue and New York State had sent its employees home at 3:00. The snow and lack of ploughing made driving nearly impossible. However, the hearing was held; the developers were given all the time they wanted to speak, about an hour and a half, and then the opponents were allowed to speak. After about ninety minutes of the citizen’s speaking against the developments, the Albany City Planner, Dick Patrick said, in the understatement of the year “the weather is getting kinda bad out” and closed the hearing.

John Wolcott told Lynne that one of the participants at the hearing said “That’s not fair.” Dick Patrict responded “Life is not fair.” When SPB sued the City over the approvals of these developments, that statement was used against the city, winning the lawsuit for Save the Pine Bush.

Steve Downs, SPB attorney, began his talk by emphasizing how important it is for the story of SPB to be told. He said we all have stories of Save the Pine Bush and he wants to record everyone’s story. These stories, he notes, that could inspire another generation.

Steve talked about his “four favorite legal legacies.” He noted that SPB burst forth on the scene in 1978 all set to go and one of its first acts was to sue the City of Albany. And SPB then proceeded to file about one lawsuit each year in the next 30 years. It is, he said, an astonishing record, unlike anything else he knows about.

This litigation of SPB is particularly odd, said Steve, because most conservation organizations are more genteel about preservation — if they had a motto, it would be more like “Lady and gentlemen conservationists do not sue; we negotiate with willing landowners.” Somehow, SPB broke that mold, and went off in a completely different direction. One of the questions that came to Steve while preparing for his talk was what was it about SPB that started them off in such a different direction? Steve described five legal and political factors that set the stage for the SPB to be born.

First, in 1977, a year before SPB came into being, the Karner Blue Butterfly was declared an endangered species in New York State. Being an endangered animal or insect of any kind has enormous political consequences — the Department of Environmental Conservation gets involved, the state has an interest in protecting the species, etc. And, the Karner Blue is dependent on the Pine Bush and the blue lupine that grows in the Pine Bush. You can’t just kick them out and expect them to survive somewhere else. The Karner Blues live in the Pine Bush.

The second factor was the passage of the State Environmental Quality Review Act (SEQRA), passed by the State of New York in 1975. The goal of SEQRA was to get all governmental bodies to “consider” environmental impacts of decisions they on the environment and to “consider” possible mitigation matters. Steve emphasized “consider.” However, SEQRA takes it a little farther — SEQRA requires a “hard look” or, as Steve calls it “informed consideration” meaning one has to know something about what is being considered. SEQRA defined an 11-step process for proposed developments, resulting in an environmental impact statement. The only product of this long process is delay. SEQRA was a method by which bad projects could be delayed, simply because governmental bodies had not given them enough consideration.

The other part of the SEQRA process is that any citizen could disagree, and could argue that not enough consideration was given to the project. Wow – what a tool this was at a time when no consideration was given to environmental issues to finally force the governments to do what they were supposed to do.

The third factor was that the government in Albany was run by the O’Connell machine, a fossilized political machine that was running out of ideas and only wanted to perpetuate itself. SPB was not just an environmental organization, it was a political machine, that proudly put on its letterhead “You can fight City Hall — And Win!”

The landowners were the forth factor. The people who owned land in the Pine Bush were not patricians who were going to sit on the land, but, instead, developers who wanted to flip the land and make big profits. To build these developments, the developers needed zoning changes. SPB could not have forced the developers to protect the butterfly, but, they could block them from their zoning changes. As all the money the developers had was tied up in the land, if they could not develop it, they were going to go broke. So, using SEQRA was a powerful technique that no one else was doing.

And, the fifth factor that was very important, was SPB got a great lawyer, Lew Oliver. He was creative, he was dedicated, and Steve said he still did not understand how he got paid. At this point, Lynne Jackson interjected that she and the SPB treasurer had something called an “LSU” or “Law Suit Unit” and that they would work on raising money in LSUs, which, over the years, got bigger and bigger as Lew realized how expensive this litigation could be.
These five factors make up the first part of the legal legacy that Steve described — SPB pioneered a new way of saving land in an urban environment and this was very unusual. Importantly, SPB injected political passion into it. SPB continued this for forty years. Steve said “I don’t understand how they could do it (except they were having a lot of fun while they were doing it.)” And, SPB achieved the goals which they set out — which, to Steve, seemed unbelievable.

In 1987, thanks to the SPB, Former Albany Mayor Whalen put a moratorium on development in the Pine Bush as the result of SPB going to the Court of Appeals. Even though it was a small area of the Pine Bush involved, (1700 acres), the SPB convinced the Court of Appeals to realize even a small section taken away from the Pine Bush was destructive to it and the Karner Blue Butterfly. The Cumulative Impact Case hampered development in and near the Pine Bush for the most part. Unfortunately, it was too late for Crossgates Mall which was already in place, built in 1984.

Time and time again, the SPB has been there to preserve the Pine Bush as best as a volunteer organization can be. The battles have simmered down over the past decade or so. However, there are potential new battles brewing now as this article is being typed.

We will always need volunteers to continue to fight the cause.

Steve Downs ended his speech indicating he would like to collect a paragraph or two from everyone about their passion and experiences regarding the Pine Bush.

Published in April/May 2018 Newsletter
Save the Pine Bush Newsletter