COUNTY OF ALBANY SUPREME
COURT
_________________________________________________
In the Matter of the Application of
SAVE THE PINE BUSH, INC., REZSIN ADAMS,
SANDRA CAMP, SHARON CASTERLIN, LUCY CLARK,
LYNNE JACKSON, MARTHA MASTERS
JOHN WOLCOTT, PETER VAN NOSTRAND
and RUSSELL ZIEMBA, Case
No. 1
Petitioners,
Index
No. for
judgment pursuant to Article 78 of the CPLR
RJI No.
-against-
CITY OF ALBANY,
Respondents.
---------------------------------------------------------------------------
REZSIN ADAMS, LYNNE JACKSON, MARTHA MASTERS,
PETER VAN NOSTRAND and JOHN WOLCOTT,
Case
No. 2
Plaintiffs,
Index
No.
-against-
RJI
No.
GERALD JENNINGS, Mayor of the City of Albany, the CITY OF
ALBANY, and the ALBANY COMMON COUNCIL,
Defendants.
________________________________________________
PETITIONERS’/PLAINTIFFS’ MEMORANDUM
OF LAW
Peter Henner
Attorney for Petitioners/Plaintiffs
P.O. Box 326
Clarksville, NY 12041
Tel. No. (518) 768-8232
Fax.
No. (518) 768-8235
Dated: January 17, 2006
TABLE OF CONTENTS................................................................................................................................................
i
TABLE OF AUTHORITIES.....................................................................................................................................................
ii
PRELIMINARY STATEMENT1
STATEMENT OF FACTS2
POINT I
PETITIONERS/PLAINTIFFS
HAVE STANDING TO MAINTAIN THIS ACTION...................................................................................................................................................
4
A. Plaintiffs
have standing under GML § 514
B. Petitioners
have standing to assert a SEQRA challenge.......................................................................................................................................
4
1. Petitioners
have a “special injury” sufficient for standing....................................................................................................................................
5
2. Save the
Pine Bush has organizational standing....................................................................................................................................
8
POINT II
MITIGATION MEASURES
IMPOSED UNDER SEQRA ARE ENFORCEABLE................................................................................................................................................
10
POINT III
USE OF THE FOX RUN ESTATES PARCEL
FOR LANDFILL EXPANSION CONSTITUTES ALIENATION OF LAND DEDICATED
FOR PARK PURPOSES................................................................................................................................................
12
POINT IV
ALIENATION OF PARKLAND CAN BE ENJOINED
BY A TAXPAYER ACTION UNDER § 51 OF THE GENERAL MUNICIPAL
LAW...........................................................................................................................................
14
POINT V
PLAINTIFFS/PETITIONERS ARE ENTITLED
TO A PRELIMINARY INJUNCTION.............................................................................................................................................
15
A. Petitioners/plaintiffs
are likely to succeed on the merits.........................................................................................................................................
15
B. Plaintiffs/petitioners
will suffer irreparable injury in the absence of an injunction...................................................................................................................................
16
C. The balance
of equities are in petitioner's/plaintiff's favor...........................................................................................................................................
17
POINT VI
The undertaking required under CPLR
6312 and under § 51 of the General Municipal Law should
be set in a nominal amount.................................................................................................................................................
19
Conclusion....................................................................................................................................................
20
CASES
Aetna Insurance Co. v. Capasso, 75 N.Y.2d 860 (1990)........................................................................................................................................
18
Dairylea Cooperative v. Walkley, 38 N.Y.2d 6, 9 (1975)..........................................................................................................................................
4
Douglaston Civic Association v. Galvin, 36 N.Y.2d 1, 7 (1974)..........................................................................................................................................
9
Friends of Van Cortlandt Park v. State of New York, 95 N.Y.2d
623, 630 (2001)........................................................................................................................................
14
Gewirtz v. City of Long Beach, 69 Misc. 2d 763, 770 (Supreme
Court Nassau County, 1972)..........................................................................................................................................
14
HAR Enterprises v. Town of Brookhaven, 74 N.Y.2d 524, 529
(1989)..........................................................................................................................................
6
Kenwell v. Lee, 261 N.Y. 113 (1933)........................................................................................................................................
16
Lordo v. the Board of Trustees of Munsey Park, 202 A.D.2d
506, (2d Dept. 1994)............................................................................................................................................
7
McGrath v. Town Board of North Greenbush, 254 A.D.2d 614,
616 (3d Dept. 1998)............................................................................................................................................
7
Otsego 2000 v. Planning Board of Town of Otego, 171
A.D.2d 258, 261 (3d Dept., 1991)............................................................................................................................................
5
Patterson Materials Corp. v. Town of Pawling, 221 A.D.2d 608,
609 (2d Dept. 1995)............................................................................................................................................
7
Save Our Main Street Buildings v. Greene County Legislature,
293 A.D.2d 907 (3d Dept. 2002) leave to appeal denied, 98 N.Y.2d
609 (2002)......................................................................................................................................
7, 8
Save the Pine Bush v. City of Albany, 141 A.D.2d 949 (3d Dept.
1987)..........................................................................................................................................
12
Save the Pine Bush v. New York State Department of Environmental
Conservation,
289 A.D.2d 636 (3d Dept. 2001)..................................................................................................................................
2, 3, 12
Skenesborough Stone v. Village of Whitehall, 229 A.D.2d 780,
781 (3d Dept. 1996)............................................................................................................................................
7
Society of Plastics v. Suffolk County, 77 N.Y.2d 761 (1991)..............................................................................................................................
4,5,6,8,9
Steele v. Town of Salem Planning Board, 200 A.D.2d 870, 872
(1974)..........................................................................................................................................
8
Sun-Brite Car Wash v. Zoning Board of Appeals, 69 N.Y.2d 406
(1987)..........................................................................................................................................
5
Town of Coeymans v. City of Albany, 284 A.D.2d 830, 833-834
(3d Dept. 2001)............................................................................................................................................
7
Town of Henrietta v. Department of Environmental Conservation,
76 A.D.2d 215, 225 (4th Dept. 1980)..........................................................................................................................................
11
Williams v. Gallatin, 229 N.Y. 248 (1920)..................................................................................................................................
14, 16
NEW YORK STATUTES
Environmental Conservation Law § 46-0101......................................................................................................................................
12
Environmental Conservation Law § 46-0103......................................................................................................................................
12
General Municipal Law § 51........................................................................................................................................
passim
In this hybrid Article 78 proceeding and taxpayer lawsuit
under § 51 of the General Municipal Law, an environmental
organization and several of its members seek to: 1) enjoin
the City of Albany from siting a landfill on property originally
acquired from the Fox Run Mobile Home Park for dedication to
the Albany Pine Bush Preserve and 2) compel the City to dedicate
the land to the Pine Bush Preserve.
In the Article 78 proceeding, petitioners maintain that the
preservation of this land was an explicit mitigation condition
imposed by the New York State Department of Environmental Conservation
(“DEC”) under the State Environmental Quality Review
Act (“SEQRA”), as a condition under which the City
obtained a landfill permit in 2000. Petitioners/plaintiffs
also maintain that a permittee cannot break a commitment to
provide a specific mitigation measure under SEQRA.
Some of the petitioners are also asserting claims as plaintiff
taxpayers in the City of Albany, under § 51 of the
General Municipal Law. Plaintiffs maintain that the land
was acquired for parkland purposes, and is now imbued with
a public trust. As discussed at length in Point
III below, land acquired for parkland can not be alienated
for other purposes without the approval of the state legislature. Plaintiffs
assert that the use of land acquired for park purposes for
landfill expansion constitutes an illegal act, and seek to
enjoin such use.
Because the City has publicly announced its intention of utilizing
this land for landfill expansion, and because the City’s
application for a new permit is presently pending before DEC,
petitioners/plaintiffs are seeking a preliminary injunction
enjoining the City’s application, pending the final determination
of this Court.
In the late 1990s, the City of Albany applied for a permit
to expand its existing landfill, located near Rapp Road in
the City of Albany. The City sought permission to construct
and operate an interim landfill at Rapp Road, which consisted
of both a vertical and horizontal expansion of the existing
landfill. The City's permit application involved a 23
acre parcel, consisting of an immediate 11.5 acre parcel and
an additional 7.6 acre expansion to be commenced in 2005. A
variance from DEC’s landfill regulations, 6 NYCRR Part
360, was needed because the proposed landfill was located over
a principal aquifer (see Save the Pine Bush v. New York State
Department of Environmental Conservation, 289 A.D.2d 636 (3d
Dept. 2001)).
After three Environmental Impact Statements, DEC completed
the SEQRA process, made a findings statement, and issued a
permit on February 29, 2000. The permit imposed a mitigation
measure that was adopted in the Third Supplemental Final Environmental
Impact Statement; the acquisition of 60 acres of land located
in the Fox Run Mobile Home Park (hereafter referred to as the “Fox
Run parcel”), for dedication to the Albany Pine Bush
Preserve Commission (“the Commission”). The
City of Albany was to submit a schedule for the completion
of this purchase within 30 days of the issuance of the permit.
In order to acquire this property, the City needed to obtain
an option for acquisition which was held by the Nature Conservancy. The
Nature Conservancy transferred its option to the City, for
the express purpose of enabling the City to acquire the Fox
Run parcel for inclusion in the Pine Bush Preserve. The
Nature Conservancy transferred its option on April 17, 2000,
less than two months after the issuance of the permit. The
City acquired the property in the summer of 2000, and initially
indicated that 40 acres of undeveloped land in the mobile home
park would be dedicated by December 31, 2000 (Petition ¶37,
Exh. E). However, more than five years later, the City has
still not dedicated the property to the Commission.
In previous litigation pertaining to the 2000 landfill expansion,
the Third Department noted: “the City has taken substantial
steps towards satisfaction of a Department mitigation measure
requiring the City to purchase the 60 acre Fox Run Estates
Mobile Home Park and dedicate the property to the Pine Bush.” Save
the Pine Bush v. New York State Department of Environmental
Conservation, 289 A.D.2d at 639. The Commission’s
2002 Management Plan treated this land as protected (see Petition, ¶ 57,
Exh. K). The land provides a crucial corridor link between
the western and eastern parts of the Albany Pine Bush, whose
preservation is considered a crucial mitigation measure for
the 2000 expansion (see Petition ¶¶ 33-35, Exh. C,
including color map of expansion site).
However, rather than fulfill its commitment to dedicate this
land, the City has now applied for a further extension of the
Rapp Road landfill onto the parcel that should have been dedicated
to the Commission in 2000.
Save the Pine Bush, an environmental organization with a long
history of advocating for the preservation of Pine Bush lands,
has a number of members who recreate in the Pine Bush, and
who are concerned about the preservation of Pine Bush habitat. Save
the Pine Bush, and the individual petitioners/plaintiffs bring
this action to enjoin the City from proceeding with its plans
to expand the landfill onto land that has previously been earmarked
for inclusion in the Pine Bush Preserve.
Obviously, the plaintiff individuals have statutory standing
to commence the taxpayer action under § 51 of the
General Municipal Law. Plaintiffs allege that they meet
the low standard of property ownership required for standing
under the statute.
“In New York courts, the now-established test for standing
in cases of SEQRA challenges is the liberal two-part test set
forth in Dairylea Cooperative v. Walkley, 38 N.Y.2d 6, 9 (1975) ‘all
that an objector needs to show [is] that the [challenge] will
in fact have a harmful effect on the petitioner and that the
interest asserted is arguably within the zone of interest to
be protected by the statute’”, Society of
Plastics v. Suffolk County, 77 N.Y.2d 761, 785 (1991), dissenting
opinion of Hancock, J. However, since the decision of
the Court of Appeals in Society of Plastics, defendants have
frequently raised standing objections, with some success. Nevertheless,
petitioners in this case plainly have standing to assert injuries
under SEQRA, even under the post-Plastics decisions of
appellate courts.
Save the Pine Bush is an environmental organization that was
formed more than 27 years ago for the specific purpose of protecting
the unique ecology of the Albany Pine Bush. Save the
Pine Bush has led more than a hundred hikes, ski trips, and
other excursions into the Pine Bush. The organization
has held numerous educational programs pertaining to Pine Bush
ecology, and has been a well-known litigant, challenging many
proposed developments which would negatively impact Pine Bush
habitat. The organization has never been denied standing
to maintain actions brought to vindicate concerns with respect
to proposed projects in the Pine Bush area. Furthermore,
members of Save the Pine Bush live in close physical proximity
to the Rapp Road facility. Other members of Save the
Pine Bush regularly recreate on Pine Bush lands by hiking,
skiing, bird watching, and other activities.
If anyone has standing to enforce the applicability of a mitigation
measure imposed under SEQRA in the Pine Bush, it is Save the
Pine Bush and its individual members. If Save the Pine
Bush, despite its continuous acts of advocacy for this unique
parcel of land, educational programs, fundraising, and previous
litigation, and despite having members with a vital environmental
interest in the Pine Bush, does not have standing, then we
truly have a condition where no one could possibly meet any
applicable test for standing to commence such a lawsuit. The
Third Department has strongly implied that standing will not
be denied, where, as here, “a denial of standing to petitioner
will insulate the governmental action from judicial review”,
Otsego 2000 v. Planning Board of Town of Otego, 171 A.D.2d
258, 261 (3d Dept., 1991).
Society of Plastics held that “we have long imposed
the limitation that the plaintiff, for standing purposes, must
show that it would suffer direct harm, injury that is in some
way different that the public at large”, 77 N.Y.2d at
774, citing with approval, Sun-Brite Car Wash v. Zoning Board
of Appeals, 69 N.Y.2d 406 (1987). In Sun-Brite, Chief
Judge Kaye, the author of the majority opinion in Society of
Plastics, wrote for a unanimous court: “standing principles,
which are in the end matters of policy, should not be heavy-handed;
in zoning litigation, in particular, it is desirable that land
use disputes be resolved on their own merits rather than by
preclusive, restrictive standing rules . . . While something
more than the interest of the public at large is required to
entitle a person to seek judicial review – the petitioning
party must have a legally cognizable interest that is or will
be affected by the zoning determination - proof of special
damage or in-fact injury is not required in every instance”. Furthermore, “an
allegation of close proximity alone may give rise to an inference
of damage or injury that enables a nearby owner to challenge
a zoning board decision without proof of actual injury”.
69 N.Y.2d at 413-414.
Individual petitioners own property in close proximity to
proposed landfill
Even after Society of Plastics, courts have continued to rely
upon the Court of Appeals’ unambiguous statement “in
deciding whether an owner has standing to ask the Court to
review SEQRA compliance, the question is whether it has a significant
interest in having the mandates of SEQRA enforced. An
owner’s interest in the project may be so substantial
and its connection to it so direct or intimate as to give it
standing without the necessity of demonstrating the likelihood
of resultant environmental harm. For even though such
an owner cannot presently demonstrate an adverse environmental
effect, it nevertheless has a legally cognizable interest in
being assured that the decision makers, before proceeding,
have considered all of the potential environmental consequences,
taken the required ‘hard look’, and made the necessary ‘reasoned
elaboration’ on the basis of their determination”.
HAR Enterprises v. Town of Brookhaven, 74 N.Y.2d 524, 529 (1989),
cited after Society of Plastics in Lordo v. the Board
of Trustees of Munsey Park, 202 A.D.2d 506, (2d Dept. 1994),
Patterson Materials Corp. v. Town of Pawling, 221 A.D.2d 608,
609 (2d Dept. 1995), and Skenesborough Stone v. Village of
Whitehall, 229 A.D.2d 780, 781 (3d Dept. 1996).
More recently, the Third Department has noted: "The allegation
that each lives in close proximity to the proposed project
coupled with their allegations that they will be adversely
affected by the project are sufficient to create a presumption
that [these petitioners] will be adversely affected in a way
different from the public at large." Town of Coeymans
v. City of Albany, 284 A.D.2d 830, 833-834 (3d Dept. 2001) citing
McGrath v. Town Board of North Greenbush, 254 A.D.2d 614, 616
(3d Dept. 1998), leave to appeal denied 93 N.Y.2d 803 (where
the court held, an allegation that petitioner lived within
500 feet of the site, and would suffer harm from increased
noise, traffic and "degradation of the character of the
neighborhood" sufficient to demonstrate standing).
In Save Our Main Street Buildings v. Greene County Legislature,
293 A.D.2d 907 (3d Dept. 2002), leave to appeal denied, 98
N.Y.2d 609 (2002), the Third Department acknowledged that it
had recognized standing on a basis of impairment of a scenic
view from a party's residence, citing Steele v. Town of Salem
Planning Board, 200 A.D.2d 870, 872 (1974), leave to appeal
denied, 83 N.Y.2d 757 (1974), but nevertheless rejected a claim
of standing on the basis of a factual finding that the individual
petitioners' residences were not within sight of the project,
and that any impacts would therefore be no different than for
the public at large. 293 A.D.2d at 909.
Save Our Main Street Buildings is distinguishable from
the instant case, because here petitioners specifically allege
that they will be directly impacted by the landfill in their
backyards. These impacts will not only be visual, they
will also result from odors, increased traffic, and deprivation
of recreational use.
Petitioners will be deprived of an important recreational
resource
"Use and enjoyment of the site at issue is clearly sufficient
to establish standing under [the National Environmental Policy
Act] and the same rule should apply under SEQRA, although the
issue has not been extensively litigated". Gerrard,
Ruzow and Weinberger, Environmental Impact Review in New York,
p. 7-96. The Pine Bush Preserve is an important recreational
resource for the Albany community, and impairment of this resource
by the construction of a landfill upon land that is crucial
to establish a corridor between the two portions of the preserve
is clearly an environmental harm. However, the question
can be asked "Can an injury to use and enjoyment of a
public resource also show an injury distinct from that of the
public at large?" Ibid. p. 7-96.
It could be argued that every citizen of New York State has
an interest in preservation of the Pine Bush, and that therefore
no one has standing to raise a SEQRA challenge, because no
individual or organization has a specific injury separate from
the general public. However, petitioners respectfully
submit that such an interpretation is logically absurd and
would lead to the conclusion that no one would ever have standing
to challenge an environmental harm.
Instead, petitioners respectfully maintain that their individual
activities, and the activities of Save the Pine Bush are sufficient
to demonstrate a distinct injury. Save the Pine Bush
has a particular interest in the Pine Bush lands, as demonstrated
by its regularly-scheduled recreational activities located
in the Pine Bush, its educational programs, speakers, and long
history of advocacy. Furthermore, its members, as well
as individual petitioners, specifically allege that they regularly
recreate in the Pine Bush, while the general public presumably
does not. These activities are sufficient to demonstrate
a special injury, such that the proposal at issue creates a
special injury to them, sufficient to warrant a grant of standing
to maintain the instant petition.
Save the Pine Bush easily meets the organizational tests for
standing set forth in Douglaston Civic Association v. Galvin,
36 N.Y.2d 1, 7 (1974) and Society of Plastics, 77 N.Y.2d 761
(1991). In Douglaston Civic Association, the Court
of Appeals held that an organization, to establish standing,
must establish 1) the capacity to assume an adversary position,
2) demonstrate that its position is fairly representative of
the community of interests, 3) the issue is within the zone
of interests that the organization is established to perfect,
and 4) membership in the organization is open to all residents
and property owners in the relevant neighborhood. Save
the Pine Bush's long history of advocacy demonstrates all four
of these criteria. Save the Pine Bush, for over 27 years,
has been the leading advocate of preservation of the Pine Bush,
and membership is open to all individuals and organizations
that share its concerns.
Society of Plastics created an additional three-part
test for organizational standing: 1) whether individuals in
the organization have standing in their own right, 2) whether
the interests of the suit are germane to the purpose of the
organization, and 3) whether the suit can proceed without the
individuals asserting their claims as individuals 77 N.Y.2d
at 775.
Once again, Save the Pine Bush obviously meets these three
criteria. Individual members who have standing in their
own right are mentioned as individual petitioners, although
this lawsuit could proceed without them, and be prosecuted
in the name of Save the Pine Bush. It is self-evident
that lawsuits of this nature, given the long history of Save
the Pine Bush litigation, are very much a part of the purpose
of the organization.
There is virtually no case law with respect to the question
of whether a mitigation measure imposed under SEQRA can be
enforced via litigation. However, as a matter of logic,
fairness, and common sense, petitioners respectfully maintain
that the City's commitment to dedicate the Fox Run parcel to
the Pine Bush Preserve Commission should be enforceable via
the instant Article 78 proceeding.
Obviously, SEQRA specifically authorizes agencies to impose
mitigation measures to minimize environmental impacts. ECL
8-0109(2) (f). It is well settled that agencies have
the authority to impose "conditions upon an applicant's
project to minimize or avoid environmental impacts unrelated
to any specific permit standards or criteria." Town
of Henrietta v. Department of Environmental Conservation, 76
A.D.2d 215, 225 (4th Dept. 1980). If the legal requirement
to impose mitigation measures is to have any force, then the
courts must have the power to direct the implementation of
a mitigation measure adopted pursuant to the SEQRA process.
Most litigation with respect to mitigation measures involves
claims that mitigation measures go too far, but courts have
also held that additional mitigation measures may be necessary,
including, in a case between the same parties as the instant
litigation, a requirement that the City of Albany make a determination
of the minimum acreage needed for the preservation of the Pine
Bush ecology, Save the Pine Bush v. City of Albany, 141 A.D.2d
949 (3d Dept. 1987), leave to appeal denied, 73 N.Y.2d 701
(1988).
In the instant case, a mitigation measure was properly adopted,
after due consideration by the lead agency responsible for
accepting the Environmental Impact Statement, the New York
State Department of Environmental Conservation. The mitigation
measure of land dedication at issue was specifically cited
in Save the Pine Bush v. Dept. of Environmental Conservation,
289 A.D.2d 636, 639 (3d Dept. 2001) as part of the rationale
for the decision that it would be unfair to overturn DEC’s
grant of the present permit to the City of Albany.
Now, four years after the decision, it would be unfair for
the City to abrogate its commitment to perform the mitigation
measure that was a condition of its permit. Accordingly,
petitioners should be permitted to enforce the mitigation condition
that the City dedicate the Fox Run parcel to the Albany Pine
Bush Preserve Commission.
The City of Albany acquired the Fox Run parcel pursuant to
a permit condition for the specific purpose of dedicating the
lands to the Albany Pine Bush Preserve Commission. The
Commission was established pursuant to Article 46 of the Environmental
Conservation Law, for the specific purpose of managing and
preserving Pine Bush lands. These lands are managed as
open space, and contain numerous hiking trails, butterfly habitat
preservation, bird watching, and other recreational uses.
Lands that are to be included in the Pine Bush Preserve are "lands
in the City of Albany and Towns of Guilderland and Colonie
in the County of Albany characterized by the growth of pitch
pine and scrub oak pine barrens, vernal ponds and/or the presence
of sand dunes which are dedicated for protection and beneficial
public use. . ." Environmental Conservation Law § 46-0103.
The Legislature has declared that these lands are "especially
valuable as an open-space resource and, if properly managed,
as a passive recreation area and educational laboratory . .
. the Legislature hereby declares it to be in the public interest
to protect and manage the Albany Pine Bush by establishing
an Albany Pine Bush Preserve consisting of dedicated public
and dedicated private land . . . for purposes of its protection
and controlled and appropriate recreation and education uses." ECL § 46-0101.
The Commission maintains Pine Bush lands for "park" purposes. "A
park is a pleasure ground set apart for recreation of the public,
to promote its health and enjoyment", Williams v. Gallatin,
229 N.Y. 248 (1920). "In the 80 years since Williams,
our courts have time and again reaffirmed the principle that
parkland is impressed with the public trust, requiring legislative
approval before it can be alienated or used for an extended
period for non park purposes" Friends of Van Cortlandt
Park v. State of New York, 95 N.Y.2d 623, 630 (2001).
Although the City never fulfilled its legal obligation to
dedicate the land to the Commission, the land is impressed
as parkland because it was acquired as part of a legal obligation
to dedicate it as parkland. The City's actions in acquiring
the option from the Nature Conservancy, and in agreeing to
the permit condition that the land be dedicated, are sufficient
to "manifest unequivocally an intention to dedicate a
municipally owned property to public use as a public park." Gewirtz
v. City of Long Beach, 69 Misc. 2d 763, 770 (Supreme Court
Nassau County, 1972), affirmed on opinion below, 45 A.D.2d
841 (2d Dept. 1974).
The restriction that land in the Pine Bush be managed for
recreational activities, and be used for recreational and educational
activities, effectively makes this land parkland, subject to
the common law protection for parkland. "Public parks
occupy a special position insofar as the public at large is
concerned and this is borne out by numerous expressions to
that effect found in the decisions of the state”, Gewirtz,
69 Misc. 2d at 775 (citations omitted).
Under the unique circumstances of this case, the land acquired
by the City of Albany from the Fox Run Estates was effectively
dedicated to park purposes, and cannot be used for any other
purposes without legislative approval. Accordingly, the
use of this land for the purposes of landfill expansion is
expressly prohibited.
Section 51 of the General Municipal Law, which was initially
enacted in 1909, authorizes taxpayers who own an assessed valuation
in excess of $1,000 to maintain an action against any "officers
agents commissioners and other persons acting or who have acted
for or on behalf of any "municipal corporation" [including
cities] . . . to prevent any illegal official acts. . .".
In this case, the City of Albany, by the actions of its officials
and agents, is seeking to alienate land which has been acquired
and effectively dedicated for the purposes of parkland. Such
an action is illegal, and can be enjoined by a taxpayer action. Indeed,
one of the early leading cases involving the alienation of
parkland, Williams v. Gallatin, 229 NY 248 (1920) was
brought as a taxpayer action under this same section, §51 of
the General Municipal Law, seeking to enjoin the use of New
York City’s Central Park for non-park purposes.
A taxpayer action was also permitted to enjoin the issuance
of bonds for the establishment of a water district which was
proposed to be established within lands that had been designated
as “forever wild” and part of the forest preserve,
Kenwell v. Lee, 261 N.Y. 113 (1933). In Kenwell, as in
Williams, the basic principle was established that a taxpayer
action can be brought to enjoin illegal action which would
adversely affect lands that had been dedicated to park purposes,
or had been designated as forever wild by the State Constitution.
Inasmuch as the lands at issue in this case have been designated
for park purposes, a taxpayer action lies to enjoin their alienation,
and to prevent the City of Albany from constructing a landfill
upon such lands.
Petitioners and plaintiffs seek a preliminary injunction,
enjoining the City of Albany from proceeding with its application
for any landfill permit that proposes to use the Fox Run property
for landfill expansion. The standards for granting a
preliminary injunction are well established: the moving party
must establish: 1) probability of success on the merits, 2)
irreparable injury in the absence of an injunction, and 3)
the balance of equities are in its favor, Aetna Insurance Co.
v. Capasso, 75 N.Y.2d 860 (1990).
In this case, the City of Albany is attempting to unilaterally
abrogate a commitment that it made to mitigate an adverse environmental
impact by dedicating a crucial portion of land to the Albany
Pine Bush Preserve Commission. It is undisputed that
the City promised to dedicate this land, and that such dedication
was required as a condition of its permit.
Therefore, petitioners are likely to succeed on the merits
of the Article 78 proceeding because mitigation conditions
imposed as part of a SEQRA review are properly enforceable,
and the City's failure to comply with the mitigation provision
is clear-cut (see Point II above).
Furthermore, inasmuch as the land was to be used for parkland,
petitioners are also likely to succeed with respect to their
claim that the City should be enjoined from alienating the
land by using it as a landfill (see Point III above).
Finally, inasmuch as the alienation of this land constitutes
an illegal act, for the reasons set forth in Point IV above,
plaintiffs are also likely to succeed on their claims under § 51 of
the General Municipal Law.
Accordingly, petitioners/plaintiffs are likely to succeed
on the merits of the petition.
If the City of Albany is permitted to construct the landfill,
the possibility of preservation of the land as Pine Bush habitat
and dedication to the Albany Pine Bush Preserve will be lost. Therefore,
an injunction is needed to ensure that the landfill construction
is not permitted to commence.
As of January 2006, the City is beginning the process of applying
for a permit from the New York State Department of Environmental
Conservation. This permit application process will involve
an environmental review, including an assessment of possible
adverse environmental impacts of the landfill expansion. The
City will commit tens of thousands of dollars in legal and
expert technical consulting fees to pursue this application,
and in its efforts to persuade the Department of Environmental
Conservation to grant a new permit to the City. In order
to succeed, the City will need to persuade DEC to rescind the
permit condition and mitigation measure that DEC previously
imposed, to require the dedication of the land.
The issue before DEC may be the factual question of whether
the requirement of land dedication is still desirable, given
the City's claim to need ever more landfill space at Rapp Road. In
contrast, the question before this Court is the legal enforceability
of the commitment made in 2000 to dedicate the land. If
the application process is permitted to continue, and DEC continues
to evaluate the City's efforts to weasel out of its previous
commitments, there is a danger that the DEC will permit the
City to repudiate its commitment and repeal the requirement
of a land dedication. If this is permitted to happen,
interested parties, such as petitioners/plaintiffs, will be
irreparably injured because they will lose the benefit of the
conditions granted in 2000.
Furthermore, the continuation of the DEC permit process, which
may also necessitate involvement of the petitioners/plaintiffs
in DEC administrative hearings, will require a tremendous commitment
of financial resources on the part of petitioners/plaintiffs
to participate. The money that the petitioners and plaintiffs
will be required to spend in the adjudicatory proceedings,
which will far exceed the legal costs of the instant proceeding,
will not be recoverable in any subsequent judicial proceeding.
Accordingly, petitioners/plaintiffs will suffer irreparable
injury if DEC's processing of the City's landfill permit application
is permitted to continue.
Petitioners/plaintiffs, as well as the general public, were
promised that the land from the Fox Run parcel would be dedicated
to the Albany Pine Bush Preserve Commission, to establish a
corridor between two established sections of the preserve. This
commitment was made in 2000, and has not yet been fulfilled. There
is no reason offered, nor can there be any valid reason offered,
for the City's excuse and delay.
Although the City may assert its continuing need for ever
more landfill space, the City has had years to address this
problem, and could and should have addressed it without waiting
until 2005, when it could say that it needed the land that
had previously been committed to the Pine Bush Preserve. The
City's alleged need for this land cannot override the basic
concerns of fairness of requiring the City to honor its responsibilities
and obligations under the permit issued in 2000, and to take
the necessary action to permanently protect this crucial area
of the Pine Bush.
The undertaking required
under CPLR 6312 and under § 51 of the General
Municipal Law should be set in a nominal amount
CPLR § 6312 (b) requires the provision of an undertaking "in
an amount to be fixed by the Court" as a precondition
for the grant of a preliminary injunction. Similarly, § 51 of
the General Municipal Law requires plaintiffs to provide an
undertaking, in an amount to be established by a Justice of
the Supreme Court, in a bond in the amount of $250 “justifying
payment of a sum of $5,000”.
Although the amount of the bond and undertaking is to be established
by the Court, petitioners/plaintiffs respectfully maintain
that the court should require no more than a nominal undertaking,
in the amount of the statutory minimum required by the General
Municipal Law. The grant of a preliminary injunction
in this case does not create any significant possibility of
financial harm to the City of Albany.
The injunction will prevent the City from proceeding with
its application for a new landfill permit for a period of several
months, pending the final determination of the merits of this
action. If the action is ultimately unsuccessful, the
damages to the City will be limited to damages, if any, that
can be claimed as a result of the delay of landfill permit
construction. No personal damages will be suffered by
any defendant, nor will the City itself suffer any actual damages.
Furthermore, the instant litigation is commenced for public
interest purposes, and will save the City from wasting money
on an illegal attempt to obtain a new landfill permit. The
court should recognize these purposes in setting the amount
of the bond and undertaking, as well as the basic factors warranting
the grant of the injunction in the first place.
Petitioner/plaintiffs are entitled to an order enjoining the
City of Albany from proceeding with its application for a new
landfill permit to expand the Rapp Road landfill, and to an
order directing the dedication of the Fox Run parcel to the
Albany Pine Bush Preserve Commission. Plaintiffs/petitioners
are entitled to a preliminary injunction, restraining the City
from proceeding with its application for a landfill permit
until this lawsuit is finally determined on the merits.
DATED: January 17, 2006
Clarksville,
New York
Peter
Henner, Esq.
Attorney for Petitioners/Plaintiffs
P.O. Box 326
Clarksville,
NY 12041-0326
Telephone:
(518) 768-8232
In 1990, then DEC Commissioner
Thomas Jorling, upon granting approval of an earlier expansion
of the Rapp Road landfill, declared "I cannot envision
any set of circumstances that would justify the extension of
the life of this interim landfill or the approval of another
such facility in any other part of the Albany Pine Bush”.
New York State Department of Environmental Conservation Commissioner’s
Decision, In the Matter of the Application of the City of Albany,
February 13, 1990.
