SPB Files Appeal – – An Appeal Against the Avila Approval

by Sandy Sheridan

In a continuing effort to preserve Karner Blue Butterfly habitat, Save the Pine Bush petitioned the Appellate Court to overrule the Albany Planning Board’s approval of another senior housing project’s construction within the Pine Bush. The plan to build Avila Independent Senior Housing Campus was given the go-ahead by the Albany Planning Board, despite distinct preservation criterion instituted by Federal, State and City regulations.

The proposed Avila Campus would be built on land owned by the Roman Catholic Diocese of Albany. The 30 acre parcel is nestled between the Crossgates Mall and the southeast quadrant of the Pine Bush Preserve. The idea of developing this area is particularly alarming because it acts as the only Karner Blue Butterfly migration corridor from the Crossgates area known as "Butterfly Hill" to the rest of the Preserve. Because the Karner Blues can only fly relatively short distances during their lifetimes, stepping stones of lupine need to be in place to sustain life cycles along their migration. Construction would essentially remove those stepping stones, further threatening the endangered butterfly species.

After the Housing Development Project Plan and Environmental Impact Statement had been approved by the Albany Planning Board, Save the Pine Bush took the Board, the Diocese and First Columbia LLC to court, and lost. Judge Joseph Teresi of the State Supreme Court ruled in favor of the Board. In their appeal to the Appellate Division, Save the Pine Bush has carefully outlined legal and scientific reasons why development in the region should not be pursued

Because the Karner Blue Butterfly was listed as an endangered species by New York State (1977) and the Federal Government (1992) under the Endangered Species Act, certain protection rights have been extended to the butterfly in hopes of improving its population size. Agencies working towards preserving and improving Karner Blue Butterfly populations have made it clear that any construction in this corridor will obliterate the chances of Karner Blue restoration.

The Karner Blue Recovery Team (appointed by the US Fish and Wildlife Service) has reported that the sanctity of the migration corridor is "critical" to the Karner Blue Butterfly’s recovery within the Pine Bush, as well as throughout the state. The Albany Pine Bush Preserve Commission stated that destroying the corridor between Butterfly Hill and the rest of the Preserve "would prohibit species migration . . . destroy one of [the] last remaining chances of maintaining existing unprotected corridors . . . and will have significant negative impacts on adjacent Karner Blue Butterfly populations."

The State Environmental Quality Review Act recognizes the need for migration corridors and the Appellate Division has upheld this legislation in the past. In State of New York v. Sour Mountain Realty (2000), the Appellate Division (2nd Department) found that a fence built across a migratory route for a threatened species of timber rattlesnakes was illegal. The fence blocked the migratory path of the snakes and threatened their well being as a species. Such a disturbance was considered a form of "taking", defined by the Endangered Species Act as including "disturbing, harrying or worrying an endangered species." The Karner Blue Butterfly also migrates, and as an "endangered" species, it is even more vulnerable to such stresses.

The Albany Pine Bush Preserve Commission contends that 13 acres are required for the Karner Blue Butterfly migration corridor. Yet the Albany Planning Board accepted the Diocese’s plan of only 10 undeveloped acres. These 10 acres are in the shadier, Black Locust region of the parcel, which would not support as many lupine plants.

Furthermore, within the Albany Pine Bush Preserve Commission Implementation Guidelines used to manage the Albany Pine Bush, the corridor region between Crossgates and the Preserve has been designated as a "full protection" area. This designation means that the area "should be acquired and fully preserved and dedicated to the Albany Pine Bush Preserve."
In 1990, the Givinish Report revealed that 2000 acres is the minimum amount of Pine Bush land needed for the Pine Bush and the Karner Blue Butterfly. Currently, only 1850 acres are secured. The Planning Board’s approval for the development not only allows consumption of vital corridor space, it also impedes the acquisition of the 2000 fire manageable acres of Pitch Pine/scrub Oak land.

Because the Commission is the agency responsible for planning and managing the Pine Bush, the Commission’s findings are "entitled to deference from the City of Albany Planning Board." By allowing a "full protection" area to be developed and failing to satiate the required acquisition of land, the Planning Board has failed to give any deference to the Commission’s conclusions.
The last twist of the appeal submitted by Save the Pine Bush litigators states that the Planning Board should not have been the agency solely responsible for the approval. City of Albany code establishes that the Pine Bush Site Plan Review District is involved.

The Review District also maintains that corridors should be preserved. Furthermore, the District requires that 40% of the lot should be open-space or landscaped and that certain distances exist between structures. They also have restrictions about leveling, lighting and maintaining vegetation. All of these regulations would be illegally disregarded if the approval holds.

Printed in the August 2002 Newsletter