After 12-Year Battle, the Pine Bush Losses

The Court Decision Could have been Worse

by Lynne Jackson

ALBANY, NY: On March 22, the Supreme Court — Appellate Division, Third Department turned down Save the Pine BushÕs appeal of Supreme Court Judge Joseph TeresiÕs decision against Save the Pine BushÕs lawsuit over 300 Washington Avenue Extension.

The land in question is owned by Charles Touhey, and is located on Washington Avenue Extension in front of the Dunes housing project. Touhey originally proposed building a office complex on the site in 1988. The land was zoned residential, and to build offices, Touhey had to obtain zoning approval from the City of Albany. After the Common Council gave approval for the re-zoning, Save the Pine Bush sued.

SPB Won First Case

In December, 1992, the Appellate Division confirmed the Supreme CourtÕs ruling overturning the re-zoning. Save the Pine Bush had won, and stopped Touhey from building. This decision was extremely important for Pine Bush litigation, because it was this case that stated that for the Pine Bush to survive, 2,000 acres of fire-manageable Pine Bush must be preserved.

SPB Won Next Common Council Vote

Touhey was not happy that his office complex had been stopped, and re-submitted his office complex proposal to the Common Council in 1995. After a series of cancelled hearings, hearings quickly scheduled, and residents denied the opportunity to speak (see the July 1996 SPB newsletter), the Albany Common Council listened to the residents of the Dunes housing project, and denied TouheyÕs zone change in August, 1996. This was Save the Pine BushÕs second victory over Charlie TouheyÕs proposed office complex. At this point, both the courts and the Common Council denied the re-zoning.

Third Time Around Was Not the Charm

But, Touhey is persistent. Just a few months after his defeat by the Common Council, Touhey decided to try another tactic. He placed in each mailbox of each resident of the Dunes a notice of a public hearing. This notice stated "Charles Touhey is planning to construct Affordable Housing for first time homebuyers on his 12 acres on Pitch Pine Road. The houses will start at $65,000. Buyers must be renters [sic] who would like to own their first house . . . Please attend this meeting as this project affects your neighborhood."

Now, the interesting thing about this flyer was that under the announcement was a beautiful, color diagram of the old office complex proposal. This color diagram was in different shades of green and had a pocket park, sidewalk, bus shelter on it and flowing lines that showed all the green space. A lovely drawing. Under that diagram was an ugly black and white line drawing of the "New Proposal" with little tiny houses on square lots and "Limits of Tree Clearing" marked out.

Basically, Touhey was saying, let me build my office complex, or you are going to get Òaffordable housingÓ built in your neighborhood.

Thus began our last battle, which, ultimately, Save the Pine Bush lost.

In May, 1999, after hearings before both the Zoning Committee and the Common Council at which no one but the developers spoke in favor of the office complex, the Common Council voted to approve the re-zoning. The vote was 3 against the re-zoning, 12 in favor. The three Council Members who stood up for the Pine Bush were Carol Wallace, Richard Conti and Shawn Morris.

Save the Pine Bush filed an article 78 lawsuit against the City of Albany, contending that the City was arbitrary and capricious in its decision to approve the office complex, and that the City violated the State Environmental Review Act (SEQRA) because it allowed evidence to be introduced at the very end of the SEQRA process, when the public had no opportunity to counter the information. In the Findings Statement for the Final Environmental Impact Statement, the City cited two reports, the ÒUpdated Preserve Acreage StudyÓ (written by the TouheyÕs engineer) and the ÒTraffic UpdateÓ. These documents were never put into the record before being mentioned for the first time in the Findings Statement, denying the public the right to comment on or object to these documents. In addition, Save the Pine Bush sued because the 2,000 acre fire-manageable preserve has not yet been achieved, as was required in the 1992 ruling.

In January, 2000, Supreme Court Judge Teresi ruled against Save the Pine Bush. He made the ruling just before he presided over the trial of the police officers who shot Amadu Diallo. He ruled that the 2,000 acre preserve had been achieved.

Save the Pine Bush went to file an appeal of Judge TeresiÕs decision. However, the City of Albany had not filed papers in the Court that SPB needed to perfect the appeal. During this delay, Touhey began to build. SPB lawyer Lewis B. Oliver filed for an injunction to stop the construction, but the Appellate Division denied the injunction. Touhey built half of his office complex.

The Appellate Division dismissed the appeal on the issue of mootness, meaning that since Touhey built part of his office complex, that the questions raised in SPBÕs lawsuit are no longer relevant.

However, SPB did win on one issue raised in our appeal Ñ the Appellate Division did not decide the issue of whether 2,000 fire-manageable acres have yet been achieved. The Appellate Division decision holds that whether the Preserve consists of more than 2000 fire-manageable acres could be decided in the context of future rezoning or development applications. This means that the decision by Judge Teresi is not a binding precedent for future cases and that achievement of the minimum 2000 acre fire-manageable Preserve can still be raised in future rezoning of development applications.

End of A Long Road

Save the Pine Bush did stop this development for 12 years, which shows that sometimes justice will prevail for a while. What is so incredible to me is that though the Courts denied the original zone change, and the Common Council denied the next zone change, that this office park proposal, virtually unchanged from the proposal made in 1988, was approved. TouheyÕs land should have been purchased and added to the Preserve.

Printed in the May/June 2001 Newsletter