A Stunning Victory!
Zoning Approvals Overturned

by Daniel W. Van Riper, Mar./Apr. 92

March 5-State Supreme Court Justice George L. Cobb today overturned two zoning approvals by the City of Albany in the Pine Bush at 300 Washington Ave. Ext (Charlie Touhey's office development in front of Dunes) and 40 Karner Road (the proposed Karner Office Park just south of Pinehurst). This ruling may set a precedent which would bring all development proposals currently under consideration to a complete halt.

SPB Attorney Lewis Oliver, triumphant once again, feels that this all but guarantees that the Woodlands at Pine Ridge zoning change about to be considered by the Common Council will be thrown out of court. The City may have to begin a new environmental review, a process that could take years.

In a four page statement, Justice Cobb ruled that the City "failed to comply with the State Environmental Quality Review Act (SEQRA) by failing to consider the precise configuration of the preserve necessary to ensure survival of the Pine Bush ecology and the Karner Blue Butterfly." Furthermore, the City failed to show how "specific parcels of land would be acquired" for a Pine Bush preserve.

Please call or write your alderman! The re-zoning hearing for the proposed Woodlands at Pine Ridge office park [Editor's note, see page 31] has not been scheduled, but is coming up soon. This piece of property absolutely must be preserved in order for the Pine Bush to survive as an ecosystem. If you've been wondering what you can do to help save the Pine Bush from destruction, this is a little thing that will go a long way. It will only take a few minutes, and Albany will be a better city for your trouble.

There's no need to give a speech, discuss SEQRA statutes, or try to persuade. Just let your Alderman know that you are concerned about Pine Bush development, that you are firmly opposed to the Woodlands at Pine Ridge office development, that you will be watching how he or she votes on the proposed re-zoning, and will keep this in mind on election day. And thanks for their time.

Phone calls and letters like this usually give politicians a case of the willies, especially if there's a lot of them.

Below is the SPB Common Council Scorecard, followed by a list of Aldermen's addresses and phone numbers on page 7. Please keep these tucked in a drawer for future reference. If you don't know your ward, call City Hall information at 434-5075.

Save the Pine Bush's March Victory
a Detailed Analysis

by Lynne Jackson, May/June 92

We stopped the presses on our last newsletter to include a brief article about our major victory in court over the Pine Bush. But we did not have time to describe our victory completely.

Save the Pine Bush sued the City of Albany over its zoning approval of two office developments, Karner Office Park, 40 Karner Road (located on 20 acres on Route 155, near the Pinehurst development), and the Charlie Touhey Office Park, 300 Washington Ave. Ext. (located on 12 acres in front of the Dunes). State Supreme Court Justice George L. Cobb overturned the two zoning approvals.

Zoning for office developments in the Pine Bush is a special designation called C-PB for Commercial Pine Bush. There is a requirement that a small percentage of each development parcel be set aside for preservation. All developments in the Pine Bush (housing and commercial) must also meet the requirements of SEQRA, the State Environmental Quality Review Act.

Judge Cobb observed in his decision that the 40 Karner Road project appears to attempt to balance development pressures with conservation goals and, reduce the City's cost of land acquisition. However, the city failed to comply with SEQRA by not considering the shape of the preserve necessary to ensure the survival of the Pine Bush ecology and the Karner Blue Butterfly.

The City has been required by a previous Court to take a "hard look" at the cumulative impact of proposed developments upon the minimum preserve acreage necessary to ensure survival of the Pine Bush ecology and the Karner Blue Butterfly (Matter of Save the Pine Bush v. City of Albany, 141 AD2d 949). This requirement by the Court was imposed after the Nature Conservancy's proposed preserve design was prepared. Therefore, Judge Cobb ruled that the Nature Conservancy's proposed preserve design is not adequate to determine the amount of land necessary to ensure survival of the Pine Bush ecosystem. The amount of land necessary to ensure Pine Bush survival must be configured in a specific manner and involve specific parcels of property.

Judge Cobb further states in his decision that the City, in attempting to comply with prior Court decisions, engaged scientists to prepare a report entitled "Minimum Area Requirements for Long-Term Conservation of the Albany Pine Bush and Karner Blue Butterfly: An Assessment." This report was used by the developers in their final Environmental Impact Statements (EIS). In the findings statement of the EIS, the developers claimed that their proposal would have no significant impact on the preservation of the Pine Bush ecology or the Karner Blue Butterfly.

This report addressed almost exclusively the acreage required for preservation, and only addressed the configuration or shape of the preserve in a cursory manner. The scientists determined that in the absence of aggressive fire management, an area of at least 10,000 acres would be necessary to sustain the Karner Blue. However, they determined that with very aggressive fire management, which would be absolutely critical to the success of the preserve, roughly 2000 acres would be necessary.

The methodology used to determine the preserve area required was this: the preserve requires two separate 100 acre burn sites each year for 10 years before re-burning the first two areas. This methodology appears to assume an ideal preserve shape which will allow such regular burns.

An ideal preserve shape is one in which the "edge effects" are minimized. The shape of the preserve determines how much "edge" surrounds the preserve or the length of the border between preserved and un-preserved land. This "edge" or border is significant in determining how much land can be burned. Controlled burns can only be performed 50 feet from a private property line (unless the land-owner gives prior written permission-which is often unattainable). If, for example, the preserve were a perfect circle, more land could be burned than if the preserve has an uneven shape with many bumps and inlets. "Edge effects" are how the shape of the preserve impact on the amount of land that can be burned (the more edge, the less land that can be burned).

The City's report indicates that edge effects on ecosystems similar to the Pine Bush significantly reduces the effective size of the ecosystem. The report found that due to the shape of the preserve and the nature of adjacent lands, these edge effects will be very significant.

Judge Cobb continued by observing that these factors show that the actual shape of the preserve is absolutely critical to its effectiveness. Ignoring the critical importance of the configuration of the preserve, the report merely adopts the Nature Conservancy's preserve proposal without any specific investigation directed to the precise shape of the preserve, the nature of adjoining properties, and whether the adjoining property owners will permit aggressive fire management on their land.
Judge Cobb decided that a determination of the final shape of the preserve based on the edge effects and the City's ability to acquire relevant parcels must be made before the City can determine whether any particular proposed project may have an adverse impact on the Pine Bush ecosystem or whether all pending proposals will have a cumulative impact on the minimum preserve area necessary to ensure the survival of the ecosystem.

Accordingly, Judge Cobb found that the City failed to take a hard look at the actual preserve area or configuration necessary to ensure the survival of the Pine Bush ecology and the Karner Blue Butterfly. The re-zoning of 40 Karner Road and 300 Washington Ave. Ext. was vacated and the issues returned to the City for further proceedings consistent with this decision.


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