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Regional Archives The Altamont Enterprise, September 17, 2009

Highest court considers
Who has standing to protect environment?

By Saranac Hale Spencer

ALBANY — Arguments stemming from a six-year-old proposal to build a hotel in the pine bush were heard Tuesday at the state’s highest court.  The Court of Appeals selects cases to hear that set legal precedence.

Save the Pine Bush, a local advocacy group that works on behalf of the ecologically rare pitch-pine barrens that are home to the endangered Karner blue butterfly, was pitted against the city of Albany, which approved the hotel plan.  Nine individual members of Save the Pine Bush filed a lawsuit challenging Albany’s 2006 State Environmental Quality Review Act findings examining the environmental impacts that would come with rezoning the roughly three-and-a-half-acre parcel of pine-bush habitat near the preserve from single family residential to highway commercial. 

The city and Tharaldson Development Company, which planned to build a Marriott Residence Inn hotel on the land, responded by arguing that Save the Pine Bush did not have standing to sue.

It was on that point that the seven judges on the Court of Appeals focused — pointedly questioning the lawyers for the city, Save the Pine Bush, and the state’s Department of Environmental Conservation on what qualifies a person to bring suit.

A residential landowner adjacent to the property is the only person who should have standing to sue, said Jeffery Jamison, who represents the city.  In this case, Judge Carmen Beauchamp Ciparick asked, since a member of Save the Pine Bush lives in the area, wouldn’t that give the group standing? 

He lives 2,600 feet from the parcel, Jamison answered, which is not close enough.

So, Judge Robert Smith said, while grappling with the argument, the landowner adjacent to the park who hates butterflies has standing, but the person who lives three doors down and loves butterflies doesn’t? 

“Correct,” said Jamison.

“I think that it’s an evidentiary matter,” said Stephen Downs, the lawyer representing Save the Pine Bush, meaning, if a person can show that he uses the land, then he has standing to sue. 

Judge Eugene Pigott asked Downs then, if a proposed building in the city of Buffalo would effectively turn a street that he often used into a wind tunnel, would he have standing? 

Downs answered, yes.

Pigott followed by asking if a businessman visiting from St. Louis who also uses the street would have standing.

“We need some type of a line,” said Pigott later, meaning that if the standards are too broad then anyone, even those not necessarily affected, can sue, which can slow any project.  This particular case began six years ago, Pigott said, adding that, if a person doesn’t like a proposal, he could bring a case and stall it.

The test for who has standing should be a demonstration of substantial use and enjoyment, said Andrew Ayers, who represented the DEC.

“The purpose of SEQRA standing is to make sure that the litigants who advocate for the preservation of natural resources are motivated by strong personal interests, and that courts have the benefit of genuine disputes to frame the issues,” wrote Ayers in a brief submitted to the court.  “But owners of property close to the challenged project may not always be sufficiently interested in preserving the resources affected to represent them well.

“A neighboring property owner could even have a conflicting interest, as when the project is expected, despite environmental repercussions, to improve the monetary value of the adjacent property.  A citizen who regularly uses and enjoys the affected resources will be at least as affective a representative of the interests SEQRA protects as a citizen who owns land adjacent to the property.

“SEQRA standing should therefore be understood to include use and enjoyment claims, as well as the claims of adjacent property owners,” he wrote.


The first court to hear the case, the state’s Supreme Court, found for Save the Pine Bush stating that the group had standing to sue, citing its claim that the project would “diminish their use and enjoyment of the area.”  The court then annulled the zoning change because the city’s SEQRA process had sufficiently studied impacts to the Karner blue butterfly, but did not adequetly consider the impacts on other rare species in the pine-bush ecosystem including the frosted elfin butterfly, hognosed snake, worm snake, and eastern spadefoot toad.

The Appellate Division, the second rung in the state’s three-tiered system, affirmed the lower court’s decision, but split 3-2 on the issue of standing.  The majority found that the individual member of Save the Pine Bush “adequately alleged that their use and enjoyment of the Preserve, coupled with their historic involvement in its creation, protection and preservation, is so significant as to establish an injury greater than that suffered by the public at large.  As a result, as at least one of its individual members has standing, Save the Pine Bush has standing that flows therefrom.”

The dissenting opinion, though, said that “even where a proposed project will harm the petitioners’ use and enjoyment of public resources — such as lakes or public parks — the petitioners must demonstrate that an alleged SEQRA violation ‘will result in [their] suffering that harm to a greater degree’ than the rest of the public due to, for example, the proximity to their property to the affected site.”

The Court of Appeals typically decides a case in the session after the one in which it is argued — for this case, a decision is expected in mid- to late October.

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