Verified Petition

• This is a hybrid lawsuit consisting of a proceeding pursuant to Article 78 of the CPLR against the City of Albany (Case No. 1), and an action pursuant to § 51 of the General Municipal Law, against the City of Albany (Case No. 2), the Albany Common Council, and the Mayor of Albany (collectively referred to as the “City”), seeking to enforce a commitment made by the City, and incorporated into a permit issued by the New York State Department of Environmental Conservation  (“NYDEC”)  to the City, for the expansion of a landfill.  The City promised to acquire 60 acres of land in the Fox Run Mobile Home park (“Fox Run”), and immediately dedicate 40 acres to the Albany Pine Bush Preserve Commission (the “Commission”), and dedicate the remaining 20 acres after the current tenants vacated the premises.
• Petitioners seek an order pursuant to CPLR § 7803 (1) to: 1) compel the City to immediately formally dedicate 40 acres of land to the Albany Pine Bush Preserve Commission.
• Petitioners also seek an order, pursuant to CPLR § 7803 (2): prohibiting the City from applying for any landfill expansion that will involve the use of lands that should have been dedicated to the Commission.
• In the action under General Municipal Law § 51, plaintiffs seek a declaratory judgment to the effect that the lands that the City acquired from Fox Run in the year 2000 are imbued with a public trust as parkland, and the alienation of such land for any other purpose constitutes an illegal act and should be enjoined.

• Pursuant to CPLR § 506 (b), venue for the Article 78 proceeding is proper in any county in the Third Judicial District, including Albany County, because the principal offices of the respondents City of Albany is located in Albany County, and Albany County is located in the Third Judicial District.
• CPLR § 504 requires an action against a city to be brought in the county where the city is located. The City of Albany is located in Albany County, and venue for the declaratory judgment action under § 51 of the General Municipal Law against the City of Albany, and other municipal defendants is therefore proper in Albany County.  

• Petitioner Save the Pine Bush, Inc. is a not for profit corporation, organized under the laws of the State of New York, with its principal place of business in Albany, New York.  Save the Pine Bush has been involved in vigorous advocacy for the preservation of the Pine Bush in Albany and Schenectady Counties, and particularly in the City of Albany and the Towns of Guilderland and Colonie, for over 27 years.
• According to its Certificate of Incorporation, Save the Pine Bush, Inc. was formed "to promote and insure the preservation of the Pine Bush area of Albany and Schenectady counties.”
• Save the Pine Bush's web site, www.savethepinebush.org, describes the organization as "a volunteer, not-for-profit organization dedicated to saving the Albany Pine Bush, a globally rare ecosystem in New York State.  We stop developers by suing the government using environmental laws.  The fight for Pine Bush preservation has all the elements of a good novel - except it is real.  David vs. Goliath - volunteers vs. City Hall.” The web site claims: “Without Save the Pine Bush, there would be no Pine Bush left today.”
• Save the Pine Bush has litigated a number of issues pertaining to preservation of the Pine Bush, and has actively advocated the creation of the Albany Pine Bush Preserve, which was created pursuant to Article 46 of the Environmental Conservation Law.
• Save the Pine Bush, both as an organization and on behalf of its members, has standing to maintain this proceeding under the criteria set forth by the New York State Court of Appeals in Douglaston Civic Associations v. Galvin, 36 N.Y.2d 1,7 (1974) because:
  1)  Save the Pine Bush clearly has the capacity to assume an adversary position, as evidenced by its long history of advocacy and litigation with respect to Pine Bush preservation issues,
  2)  Save the Pine Bush’s position with respect to the Pine Bush is fairly representative of the community of interests of groups and individuals dedicated to preservation of the Pine Bush,
  3)  The use of the 60 acres of land acquired from Fox Run is squarely within the zone of interests that Save the Pine Bush seeks to protect, and
  4)  Full participating membership in Save the Pine Bush is open to all residents and property owners in the relevant neighborhood.
• In the Article 78 proceeding, individual petitioners Rezsin Adams, Sandra Camp, Sharon Casterlin, Lucy Clark, Lynne Jackson, Martha Masters, Peter Van Nostrand, John Wolcott and Russell Ziemba have a special interest in the preservation of land in the Albany Pine Bush; individual petitioners as well as other members of Save the Pine Bush, regularly hike, bird watch, cross-country ski, jog, and engage in recreational activities in the Pine Bush, and/or have a long history of activism with respect to it.
• Petitioners Martha Masters, Peter Van Nostrand, and Sharon Casterlin are members of Save the Pine Bush who reside in close proximity to the Fox Run Mobile Home Park, which is the site of the proposed landfill expansion, and the existing Rapp Road landfill.
• In particular, petitioners Masters and Van Nostrand own a horse farm and live at 175 Rapp Road, in the City of Albany. Their property boundary line is located 365 feet from the Fox Run parcel, and 385 feet from the boundary of the Rapp Road landfill. 
• Ms. Masters and Mr. Van Nostrand purchased their horse farm in 1995. They were advised that the Rapp Road landfill would be closing in 3-4 years, and the expectation that the landfill would close was an important consideration for them when they purchased their property. They have considered moving to another location because of the plans of the City to continue to expand the landfill.
• On occasion, Ms. Masters and Mr.Van Nostrand have ridden their horse on the Fox Run mobile home land.
• Petitioner Sharon Casterlin lives upon property that she owns, located at 154 Lincoln Ave, in the City of Albany. Her property boundary line is located 885 feet from the Fox Run parcel, and 1140 feet from the boundary of the Rapp Road landfill.
• Both Ms. Masters and Ms. Casterlin frequently smell the odor of the landfill from their residences. Ms. Masters reports that the odor is noticeable every day, and that it is frequently worse in the early evening. Ms. Casterlin reports that the smell is sometimes noticeable even when the windows of her residence are closed, and that it has made her sick to her stomach when the smell is really bad, in the summer.
• Ms. Casterlin also found a rat in her house, which she believes came from the landfill.
• Petitioners Masters,Van Nostrand and Casterlin have a “special interest” in the proposed landfill expansion because they live near the proposed landfill expansion, and because they are directly impacted by the landfill, particularly by the odors emanating from it.
• Save the Pine Bush, as an organization, has standing to assert the interests of its members described in paragraphs 12-20 above.
• Save the Pine Bush’s standing  to assert claims similar to the instant proceeding was expressly upheld by the Court of Appeals in Save the Pine Bush v. City of Albany, 70 N.Y.2d 193, 201 (1987).
• Plaintiffs in the action under the General Municipal Law, Rezsin Adams (112 Chestnut Street, Albany), Lynne Jackson (223 South Swan Street, Albany) Martha Masters and Peter Van Nostrand (175 Rapp Road, Albany), and John Wolcott (344 Sheridan Avenue, Albany) are residents and taxpayers in the City of Albany. In particular, Ms. Adams, Ms. Jackson, Ms. Masters, Mr. Van Nostrand and Mr. Wolcott are taxpayers who own real property whose tax assessment, both individually and collectively, is well in excess of $1000.
• Respondent City of Albany is a municipal corporation established pursuant to the provisions of § 20 of the General City Law.
• Gerald Jennings is the duly elected Mayor of the City of Albany, and is sued in his official capacity Mayor of the City.
• The Albany Common Council is the governing legislative body and has the powers and duties set forth in the General City Law and the Municipal Home Rule Law.

• On February 29, 2000, the New York State Department of Environmental Conservation, by Region 4 Permit Administrator William J. Clarke, issued a permit to the City of Albany for, inter alia, a permit to construct and operate a solid waste management facility known as the Rapp Road interim landfill.  A copy of this permit is annexed hereto as Exhibit A.
• The permit authorized an extension of the existing landfill, located near Rapp Road in the City of Albany, to be known as the P-4 Project.  The expansion authorized by the permit consisted of both a vertical and a horizontal expansion, which would increase the capacity of the landfill by approximately 2.1 million cubic yards.  The project was estimated to provide for approximately 10 to 15 years of disposal capacity, while the City of Albany pursued the permitting of a long-term site in the Town of Coeymans.  An excerpt from the Third Draft Environmental Impact Statement, describing the expansion of the landfill, is annexed hereto as Exhibit B.
• The City’s application for a permit to expand its landfill was subject to the provisions of the New York State Environmental Quality Review Act, ECL § 8-0101 et. seq.
• The New York State Department of Environmental Conservation acted as the lead agency for the purposes of conducting an environmental review.  As part of that environmental review, the DEC requested the preparation of a Draft Environmental Impact Statement, which ultimately underwent three Supplemental Draft Environmental Impact Statements.
• As a result of the comprehensive environmental review, it was ultimately determined that the City would provide certain mitigation, in the form of, inter alia, land acquisition.  This land acquisition was specifically described in the Third Supplemental Final Environmental Impact Statement (TSFEIS).  The relevant pages of the TSFEIS are annexed hereto as Exhibit C.
• In particular, the TSFEIS states that "the City will provide an overall mitigation and enhancement program to be implemented as follows: upon issuance of a permit for the P-4 project, the City will acquire the existing option, held by the Nature Conservancy, for the 60 acre site immediately north of the Rapp Road landfill (Fox Run Estates and the proposed extension area of Fox Run Estates) with dedication of the undeveloped portion (approximately 40 acres) to the Albany Pine Bush Preserve Commission upon closing, and dedication of the remaining, developed portion (approximately 20 acres) to the Albany Pine Bush Preserve Commission upon closure of the mobile home park;..." (TSFEIS p.11).
• The TSEIS noted that “The addition of Fox Run Estates parcel to the Preserve, suggested by the Albany Pine Bush Preserve Commission, will result in enhanced linkage between the main portion of the Preserve, and the Rensselaer Lake portion of the Preserve.” (p.12, included in Exhibit C, attached hereto)
• The Albany Pine Bush Preserve Commission submitted comments on the DEIS, in the form of a four page letter from then Executive Director Willie Janeway with extensive attachments.  A copy of this letter, together with some of the attachments, including two color slides showing the location of the corridor linking the two sections of the Pine Bush Preserve, and the location of the Fox Run Mobile Home Park, is annexed hereto as Exhibit D.
• In particular, Mr. Janeway stated “It is recommended that any permit to expand and continue operation of the landfill be conditioned on . . . land acquisition (including relocation of the Fox Run Mobile Home Park) acquisition, restoration of a ¼ mile wide (or wider) 115+ acre corridor around the landfill to the north and east, reaching the railroad tracks in places.   This would connect the Rensselaer Lake portion of the Preserve to Preserve lands to the west of the landfill.  It is recommended that this land be acquired from willing sellers, restored to Pine Bush, and within a set time frame dedicated as an addition to the Pine Bush Preserve.  It is recommended that the Fox Run Estates Mobile Home Community be purchased and the tenants gradually relocated over a multi-year period.  The City should provide generous relocation assistance as the park is phased out.” 
• The mitigation measure that the City would acquire land which would be added to the Pine Bush Preserve was incorporated into the permit that NYDEC issued.  In particular, Special Condition 7, at the top of page 11 of the permit (Exhibit A), states as follows:

• On March 30, 2000, Ruth Leistensnider, special counsel to the City of Albany, wrote to Mr. Clarke to transmit a schedule for acquisition and dedication of the Fox Run property, in accordance with the permit condition.  This schedule required the City to execute its option to purchase the property by April 21, 2000, close on or before June 6, 2000, and dedicate the property “if possible without subdivision” to the Albany Pine Bush Preserve Commission by December 31, 2000.  The schedule also provided for remaining residents of the Fox Run Estates to vacate the property prior to 2015, and for the dedication of the 20 acres of developed property by that time.  A copy of Ms. Leistensnider’s letter, together with the attached schedule, is annexed hereto as Exhibit E.
• In order to purchase the property, the City had to acquire an option which was held by the Nature Conservancy.  Upon information and belief, the Nature Conservancy transferred its option to the City of Albany, so that the City could purchase the property with the express purpose of including it in the existing Pine Bush Preserve.   The acquisition of the property was only possible because the Nature Conservancy, on April 17, 2000, assigned its option to purchase the property to the City.  Upon information and belief, the Conservancy only assigned its option because of the City's commitment to dedicate the land, once purchased, to the Albany Pine Bush Preserve Commission.  Annexed hereto as Exhibit F is a letter, dated September 9, 2005, from Nature Conservancy Counsel Jonathan Kaledin, which specifically refers to the assignment of the option by the Nature Conservancy (see page 2).
• On December 21, 2001, NYDEC Environmental Analyst Thomas Haley wrote to John Munsey, of C. T. Male and Associates, the City of Albany's environmental consultant, to request an explanation for the delay in the dedication of the Fox Run Estates land.  In relevant part, Mr. Haley stated: "based on a recent conversation with Chris Hawver [Albany Pine Bush Preserve Commission Executive Director] and Gary Stiglmeier [City of Albany Corporation Counsel], it appears that the land acquisition is complete but the dedication of the undeveloped land has not yet occurred.  The March 30, 2000 letter [Exhibit E to this Petition/Complaint] stated that you would keep the Department advised.  Please forward an explanation for the delay and a revised schedule for the dedication of the Fox Run Estates land”. A copy of Mr. Haley’s letter is annexed hereto as Exhibit G.
• Petitioners and plaintiffs are not aware of any response to Mr. Haley’s letter or of any additional communications between representatives of NYDEC and representatives of the City from 2001 until 2004.  However, on October 1, 2004, special counsel RuthLeistensnideragain wrote to Permit Administrator William Clarke, regarding the status of the land transfer (a copy of this letter is annexed hereto as Exhibit H).
• Ms.Leistensnider’s October 1, 2004 letteracknowledged that she had previously, by letter dated March 30, 2000, provided a schedule which had "contemplated that the approximately 40 acres of undeveloped land within Fox Run Estates would be dedicated to the Albany Pine Bush Preserve Commission on or before December 31, 2000. . .".  However, Ms.Leistensniderclaimed that her March 30, 2000 letter only promised to accomplish such dedication if it could be accomplished "without subdivision approval". 
• In actuality, in March 2000, Ms. Leistensnider had stated that the 40 acres of undeveloped land would be dedicated by December 31, 2000 "if possible without subdivision, subject to a right of ingress and egress for purposes of wetland mitigation required by Army Corps of Engineers and NYDEC fresh water wetlands permit."  The March 30, 2000 schedule did not state that the dedication of the 40 acres of land would be contingent upon a need to dedicate the land without subdivision approval (see Exhibit E).
• In her October 1, 2004 letter, Ms.Leistensniderclaimed that the 40 acres of undeveloped land had not been dedicated because it was not located within the City of Albany and that subdivision approval would be needed from both the Village of Colonie and the Town of Guilderland.  Ms.Leistensniderdid not offer any explanation as to why such subdivision approval would be needed from those municipalities or why, if such approval was needed, the City had not yet applied for it, or when or even if, the City intended to apply for it. 
• Ms.Leistensnider’s October 1, 2004 letter also indicated that shehad previously provided NYDEC with a copy of the recorded deed for the Fox Run Estates property, by letter dated September 11, 2000.
• As of the fall of 2005, the City had still taken no steps to dedicate the 40 acres of land that it had acquired to the Albany Pine Bush Preserve Commission.  Upon information and belief, the City never applied to the Town of Guilderland or to the Village of Colonie for subdivision approval, nor took any other step towards the dedication of this property.
• Lynne Jackson, the Secretary of Save the Pine Bush, and a petitioner and plaintiff in this action, was advised, by letter from Guilderland Town Planner Jan Weston dated October 25, 2005, that there was no record of any application for any subdivision of the Fox Run Mobile Home Park.  A copy of Ms. Weston’s letter is annexed hereto as Exhibit I.
• Upon information and belief, the City of Albany has never applied to the Village of Colonie for subdivision approval for the Fox Run Mobile Home Park property. 
• In the fall of the 2005, the City publicly announced that it was considering using a portion, if not all, of the Fox Run Estates property for a further landfill expansion. 
• On November 16, 2005, Ms.Leistensniderwrote to Mr. Clarke with respect to an application for a further expansion of the Rapp Road landfill.  Ms.Leistensnidersent Mr. Clarke a completed Part One of a Full Environmental Assessment Form, together with an application cover sheet for a landfill expansion permit under 6 NYCRR Part 360.  A copy of Ms.Leistensnider’s letter, together with the Full Environmental Assessment Form, is annexed hereto as Exhibit J.
• The Environmental Assessment Form identifies the applicant as the City of Albany Department of General Services, and describes the proposed action as the "construction of an approximately 24 acre landfill expansion of the existing Rapp Road landfill onto lands currently know (sic) as the Fox Run Mobile Home Park."   

• SEQRA requires that an agency carrying out an action, such as the issuing of a landfill permit under 6 NYCRR § 360, “make an explicit finding . . . that consistent with social, economic and other essential considerations, to the maximum extent practicable, adverse environmental effects revealed in the environmental impact statement process will be minimized or avoided.” (ECL § 8-0109 (8))
• The determination by NYDEC, acting as lead agency, that the adverse environmental impact of the project had been minimized to the maximum extent practicable, was based in part upon the commitment of the City to mitigate the impacts by acquiring the 60 acre site of the Fox Run Estates, by immediately dedicating 40 acres to the Albany Pine Bush Preserve Commission, and by the City’s commitment to dedicate the remaining 20 acres to the Pine Bush Preserve Commission upon closure of the mobile home park.
• Furthermore, by including this mitigation provision as a special condition to the landfill permit, NYDEC was expressly requiring the City to dedicate this land.
• The City's failure to dedicate the 40 acres to the Albany Pine Bush Preserve Commission by December 31, 2000, as indicated by its schedule, is therefore in violation of law because the failure to dedicate this land: 1) violates both an explicit condition of the City’s Part 360 permit and 2) is a breach of an agreement to implement a mitigation measure imposed by SEQRA. 
• The importance of the mitigation measure to the project was noted by the Appellate Division, Third Department, when it dismissed a challenge to the issuance of the 2000 permit by Save the Pine Bush, noting that the city was required "to purchase the 60 acre Fox Run Estates Mobile Home Park and dedicate the property to the Pine Bush, Save the Pine Bush Inc. v. New York State Department of Environmental Conservation, 289 A.D.2d 636, 639 (3d Dept. 2001). (emphasis added).
• Save the Pine Bush, the Nature Conservancy, and the public at large, relied upon the promises of the City to dedicate the property that it acquired to the Albany Pine Bush Preserve Commission.
• The Albany Pine Bush Preserve Commission referred to the Fox Run property as “permanently protected” in its 2002 Management Plan, as part of its evaluation of strategies for preservation of the Pine Bush.  Pages 57-58 of this Management Plan are annexed hereto as Exhibit K.
• In particular, the public was entitled to believe that, as of March 2000, the City would honor its commitment to actually dedicate the land that it was acquiring.
• As noted in ¶ 38 above, the Nature Conservancy facilitated the purchase of this land by transferring its option to purchase the land, on the express understanding that the land was to be dedicated.  If the City is now permitted to relieve itself of its commitment, it will have effectively defrauded the Nature Conservancy, and the public, by utilizing land acquired for preservation purposes for a landfill expansion.
• Finally, the 60 acre parcel of Fox Run Estates was acquired with the express understanding that it was to be used for preservation purposes.
• The Albany Pine Bush Preserve Commission manages approximately 3050 acres of all Pine Bush land as protected habitat. This land is protected as part of the Albany Pine Bush Preserve under Article 46 of the Environmental Conservation Law, and is utilized as “parkland”.
• New York State courts "have time and again reaffirmed the principle that parkland is impressed with a 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. City of New York, 95 N.Y.2d 623 (2001).
• Here, the City of Albany proposes to utilize land that it acquired for the express purpose of dedication to park purposes for a vastly different purpose; the expansion of a landfill.
• Such use represents an illegal alienation of parkland, that cannot be accomplished without an enabling act of the New York State Legislature.

• Petitioners repeat and reallege each and every allegation of all paragraphs above as if set forth in full herein.
• The City of Albany had a legal obligation to dedicate the 40 acres of the undeveloped land that was formerly part of Fox Run Estates Mobile Home Park to the Albany Pine Bush Preserve Commission prior to December 31, 2000.
• The City of Albany's dedication of this land represents a "duty enjoined upon [the City of Albany] by law."
• The City of Albany should be compelled to dedicate the 40 acres of undeveloped land in the Fox Run Estates to the Albany Pine Bush Preserve Commission immediately, and should be directed to dedicate in the remaining 20 acres of land to the Albany Pine Bush Preserve Commission upon the fulfillment of the conditions set forth in the March 30, 2000 scheduling letter.  

• Petitioners repeat and reallege each and every allegation of all paragraphs above with the same force and effect as if set forth in full herein.
• The City of Albany is not legally authorized to apply for a landfill permit to expand its landfill onto land which has previously been committed for dedication to the Albany Pine Bush Preserve Commission.
• Nevertheless, the City has filed an application with NYDEC for a permit to expand the existing Rapp Road landfill onto the land that it has acquired for dedication to the Commission.  
• The land in question has been acquired for parkland purposes, is imbued with a public trust, and can not be used for landfill purposes without a state legislative enactment.
• The City should be enjoined from proceeding with its application for a permit to expand the Rapp Road landfill onto the land that the City acquired from the Fox Run Estate Mobile Home Park.

• Plaintiffs repeat and reallege each and every allegation of all paragraphs above with the same force and effect as if set forth in full herein.
• General Municipal Law § 51 authorizes an action against "all officers, agents, commissioners and other persons acting, or who have acted, for and on behalf of any. . . municipal corporation in this state,. . . to prevent any illegal official act on the part of any such officers, agents, commissioners or other persons. . .".
• The 60 acres that the City of Albany acquired in 2000 is legally required to be dedicated to the Albany Pine Bush Preserve Commission. 
• Furthermore, the land was acquired for park purposes, and cannot be alienated from such park purposes without an enactment of the New York State Legislature.
• Therefore, an action lies under § 51 of the General Municipal Law to prevent the use of this land for other than park purposes, such as a landfill expansion.
• Plaintiffs Jackson, Adams, Wolcott, Masters and Van Nostrand, both individually and jointly, own real property in the City of Albany whose assessment exceeds the statutory amount of $1,000, and are liable to pay taxes on such assessments.
• In addition, plaintiffs are willing and able to comply with the statutory provisions of § 51 pertaining to the furnishing of a bond, should a bond be required by the Court.
• Plaintiffs are entitled to declaratory and injunctive relief, enjoining the City of Albany from using the land acquired from the Fox Run Mobile Home Park for any purposes other than dedicating it to the Albany Pine Bush Preserve Commission.

• Ordering, adjudging and decreeing that the City of Albany must immediately dedicate the undeveloped 40 acres of land that it acquired from the Fox Run Estates to the Albany Pine Bush Preserve Commission, and must dedicate the remaining 20 acres of land as soon as the existing tenants vacate the premises;
• Ordering adjudging and decreeing that the City of Albany is enjoined from applying for any permit from the New York State Department of Environmental Conservation or from any other entity, that would permit the City to utilize the land acquired from the Fox Run Estates for landfill purposes;
• Ordering, adjudging and decreeing that the 60 acres of land acquired by the City of Albany in 2000 from the Fox Run Estates Mobile Home Park has been acquired for park purposes, and cannot be alienated from park purposes without an act of the New York State Legislature;
• Awarding petitioners and plaintiffs the costs and disbursements of this action; and
• Such other and further relief, as to the Court may seem just, proper and equitable.