All Development Halted
Emergency Appeal Succeeds!

by Daniel W. Van Riper, Jan./Feb. '93

In a unanimous decision, the Appellate Division of the NYS Supreme Court upheld a lower court ruling earlier this year that overturned zoning changes for the 40 Karner Road and Touhey parcel at 300 Washington Ave. Ext., both located in central parts of the Pine Bush.

"Congratulations to us!", said Lew Oliver, SPB's attorney, flushed with victory once again. "This is the third environmental impact statement that the City of Albany has commissioned that's been thrown out of court. This is going to stop development in the Pine Bush for years."

In the decision, Justice J. P. Mikoll pointed out that although numerous court rulings had established that 2000 burnable acres must be put aside for a preserve, the City had approved the zoning changes "when only 1700 acres had been acquired for the preserve".

Furthermore, the City's plan to increase acreage was "misguided", and that the "probability, likelihood or expectation of acquiring the necessary acreage is not addressed in the environmental impact statements".

This victory was made possible by the emergency appeal to SPB members last May. Back then, the NYS Supreme Court handed down a decision throwing out these zoning changes. Within 24 hours, the City of Albany, intent on destroying the Pine Bush at any cost, filed an appeal.

This quick move by the City was an attempt to slip through the courts on a technicality, even though they were clearly in the wrong. The City had calculated that SPB, already overburdened financially with other cases, could not raise $5000 within the 30 day limit for challenging the appeal.

Thanks to the generosity and commitment of SPB members, we raised the full amount within 4 weeks, and papers were filed with the court just in time. Everyone who contributed on such short notice can take personal pride in this victory.
The court made the significant ruling that the City can allow no development in the Pine Bush until they determine which parcels of land are needed, how the land will be acquired, and how to fire-manage them. Furthermore, before making any more zoning changes, the City must supply "a reasoned elaboration" why parcels slated for development should not be acquired for preservation.

The decision comments on the importance of the Pine Bush boundaries in Guilderland and Colonie. This opens the way for SPB to begin litigation in these municipalities.

The court also ruled that throwing out the zoning change did not constitute a "regulatory taking" of privately owned land. According to the decision, "a regulatory taking challenge fails... where the regulation advances a significant State interest" such as requiring a proper environmental impact statement.

This is of importance because the US Supreme Court, which was packed with politically correct Republicans during the Reagan-Bush years, recently upheld a "taking" argument in South Carolina. That state, unlike New York, does not have a SEQRA statute that takes precedent over privately owned interests, so the two cases are not the same.

Ann Williams, former executive director of the Nature Conservancy, filed an important affidavit that maintained convincingly that the City has no plan in place to purchase land for a preserve. This requirement is one of the conditions for the DEC to grant a permit for expanding the City of Albany dump on Pine Bush land.
Of equal importance were affidavits by scientists John Shuey and John Cryan which laid out the need for a minimum of 2000 burnable acres that are connected, in order for the Pine Bush to maintain itself as an ecosystem.

The court finding that only 1700 acres have been preserved, was based on hard evidence presented in an affidavit written by SPB member Jerry Mueller. This impressive piece of work was of decisive importance in the final decision.


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