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Regional Archives The Altamont Enterprise, October 29, 2009

Loses hotel case
Save the Pine Bush wins standing

By Saranac Hale Spencer

ALBANY COUNTY — Save the Pine Bush has won a case in the state’s highest court that will have impacts across New York State.

The Court of Appeals released a decision this week in which it holds that “a person who can prove that he or she uses and enjoys a natural resource more than most other members of the public has standing under the State Environmental Quality Review Act (SEQRA) to challenge government actions that threaten that resource.”

The environmental advocacy group, which works on behalf of the ecologically-rare pitch-pine barrens that are home to the endangered Karner blue butterfly, sued the city of Albany following a proposal six years ago to build a hotel on a three-and-a-half acre parcel of Pine Bush land outside of the protected park.  The case went through the state’s three-tiered system, ending up before the Court of Appeals last month.

The city and Tharaldson Development Company, which planned to build a Marriott Residence Inn on the land, had argued that Save the Pine Bush had no standing to sue. A residential landowner adjacent to the property is the only person who should have standing to sue, said Jeffery Jamison, who represents the city. The test for who has standing should be a demonstration of substantial use and enjoyment, argued Andrew Ayers, who represented the Department of Environmental Conservation.

Lynne Jackson, a founding member of Save the Pine Bush, said the “tremendous irony” of the decision was that the group was granted standing, but failed on the merits of its case against the city. 

“The city of Albany did not violate SEQRA when, in examining the environmental impact of a zoning change for property located near the Pine Bush, it focused its attention on the areas of major environmental concern,” says the opinion, written by Judge Robert Smith, on which all seven judges agreed.  “It was not required to scrutinize every possible environmental issue, and the failure of the city’s environmental impact statement (EIS) to discuss the possible impact of rezoning on certain rare species was therefore not a fatal flaw.”

Of the nine issues that Save the Pine Bush originally raised in its 2006 lawsuit, that was the only one that made it to the Court of Appeals.  The group contended that the city hadn’t looked closely at sensitive species outside of the Karner blue butterfly, including the frosted elfin butterfly, adder’s mouth orchid, hognosed snake, worm snake, and eastern spadefoot toad.

“It is true that the record shows no investigation relating to the hognosed snake, the worm snake or the eastern spadefoot toad,” the opinion says.  “We do not suggest that these species are unimportant, but we think that the city did not act arbitrarily in omitting them from its investigations.”

The other aspect of the opinion, on whether the group had standing to sue, could have broader legal implications.  Judges Eugene Pigott and Susan Read disagreed with the majority on this point and Pigott wrote in a concurring opinion, “The majority’s holding, in my view, reinterprets much too broadly the special harm requirement that has been the cornerstone of our standing jurisprudence in land use cases.  Therefore, while I agree with the majority on the merits, I am compelled to disagree on the issue of standing.”

Smith’s opinion relies heavily on an earlier decision, called Society of Plastics Industry, Inc. v County of Suffolk.

“In Society of Plastics, we held that ‘[i]n land use matters… the plaintiff, for standing purposes, must show that it would suffer direct harm, injury that is in some way different from that of the public at large,’” the opinion says.  “In cases involving environmental harm, the standing of an organization could be ‘established by proof that agency action will directly harm association members in their use and enjoyment of the affected natural resources.’”

Coverage of the arguments can be seen at www.altamontenterprise.com under “archives” for Sept. 17, 2009.

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