Save the Pine Bush, Inc. v. Common Council of City of Albany

• Decision Date: 31 December 1992
• Citation: 591 N.Y.S.2d 897,188 A.D.2d 969
• Parties: In the Matter of SAVE THE PINE BUSH, INC. et al., Respondents-Appellants, v. COMMON COUNCIL of the CITY of ALBANY et al., Appellants-Respondents, and Karner Pines Executive Office Park, Inc. et al., Intervenors-Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 897

591 N.Y.S.2d 897

188 A.D.2d 969

In the Matter of SAVE THE PINE BUSH, INC. et al Respondents-Appellants, v. COMMON COUNCIL of the CITY of ALBANY et al., Appellants-Respondents and Karner Pines Executive Office Park, Inc. et al Intervenors-Appellants-Respondents.

Supreme Court, Appellate Division Third Department.

Dec. 31, 1992.

Vincent J. McArdle Jr. (Gary F. Stiglmeier, of counsel), Albany, for appellants-respondents.

Oliver & Oliver (Lewis B. Oliver Jr., of counsel), Albany, for respondents-appellants.

Lynch & Lynch (Peter A. Lynch, of counsel), Albany, for Karner Pines Executive Office Park Inc., intervenor-appellant-respondent.

Michael T. Wallender, Albany, for Charles Touhey, intervenor-appellant-respondent.

Before MIKOLL, J.P., and YESAWICH, LEVINE, MERCURE and HARVEY, JJ.

MIKOLL, Justice Presiding.

Cross appeals from a judgment of the Supreme Court (Cobb, J.), entered May 1, 1992 in Albany County, which granted petitioners' application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to annul determinations of respondent Common Council of the City of Albany amending the City of Albany Zoning Code, and declared ordinances 30.32.90 and 2.11.90 null and void.

The instant appeal is yet another case arising out of the proposed development of portions of the Pine Bush area in the City of Albany (see, e.g., Matter of Save the Pine Bush v. Planning Bd. of City of Albany, 130 A.D.2d 1, 518 N.Y.S.2d 466, lv. denied 70 N.Y.2d 610, 522 N.Y.S.2d 111, 516 N.E.2d 1224, cert. denied sub nom. Benacquista, Polsinelli & Serafini Mgt. Corp. v. Save the Pine Bush, 486 U.S. 1032, 108 S.Ct. 2015, 100 L.Ed.2d 603; Matter of Save the Pine Bush v. City of Albany, 117 A.D.2d 267, 502 N.Y.S.2d 540, mod 70 N.Y.2d 193, 518 N.Y.S.2d 943, 512 N.E.2d 526). The primary and secondary boundaries of the Pine Bush preserve are outlined on a map configuring the preserve prepared by the Eastern New York Chapter of the Nature Conservancy. Karner Pines Executive Office Park, Inc. (hereinafter Karner Pines), an intervenor in this litigation, intends to develop a parcel of approximately 20 acres of land located at 40 New Karner Road in the City. Nine of the 20 acres are to be improved with a 130,000-square-foot office complex. Approximately three of the nine acres are within the secondary boundary of the preserve and approximately 11.5 of the 20 acres are to be set aside to be added to the preserve. Charles Touhey, also an intervenor, owns approximately 12 acres located at 300 Washington Avenue Extension in the City on which he plans to develop a 125,000-square-foot office complex. Touhey's 12 acres are outside the proposed preserve parameters.

The previously described parcels were zoned R-1 (residential) and therefore required rezoning to C-PB (commercial-Pine Bush) in order to be developed as proposed. Respondent Common Council of the City of Albany (hereinafter respondent), the lead agency, passed resolutions declaring both proposed zoning amendments to be type I actions pursuant to the State Environmental Quality Review Act (ECL art. 8) (hereinafter SEQRA) (see, 6 NYCRR 617.2[ii], [v]; 617.6[b][1], issued a positive declaration for each project and required the preparation of environmental impact statements (see, 6 NYCRR 617.6 [G][2][IV]. DRAFT AND FINAL environmental impact statements were also prepared and accepted by respondent. The ordinances were passed and signed into law and respondent adopted a SEQRA findings statement (see, 6 NYCRR 617.9[c] in relation to each ordinance.

This combined CPLR article 78 proceeding and action for declaratory judgment seeking to annul the determinations amending the City of Albany Zoning Code and to declare the two ordinances null and void was commenced by petitioner Save the Pine Bush, Inc. (hereinafter petitioner), a not-for-profit corporation formed to protect the Albany Pine barrens, and certain individual members named in the petition. Petitioners claimed that respondent did not take a hard look at and give a reasoned elaboration for its determination that there would be no significant environmental impact from the permitted development.

Supreme Court granted Karner Pines permission to intervene in the litigation and held "that respondents failed to take a hard look at the actual preserve area or configuration necessary to ensure survival of the Pine Bush ecology and the Karner Blue butterfly". Judgment was entered annulling the determinations and declaring the Zoning Code amendments null and void. Respondents and Karner Pines appeal. Petitioners cross-appeal from that portion of the judgment which failed to consider information they belatedly furnished Supreme Court concerning the Albany Pine Bush Preserve Commission's management plan and the proposed Federal rule considering listing the Karner Blue Butterfly as an endangered species. This court granted Touhey's motion to intervene and participate as an appellant.

The judgment of Supreme Court should be affirmed. Prior decisions of this court and the Court of Appeals have established that the Pine Bush ecology, the Karner Blue Butterfly and the necessary minimal acreage required to provide for preservation of these concerns are relevant and important in the review of any SEQRA action in the Pine Bush area (see, Matter of Save the Pine Bush v. City of Albany, 70 N.Y.2d 193, 200, 518 N.Y.S.2d 943, 512 N.E.2d 526, modfg 117 A.D.2d 267, 502 N.Y.S.2d 540; Matter of Save the Pine Bush v. City of Albany, 141 A.D.2d 949, 953, 530 N.Y.S.2d 295, lv. denied 73 N.Y.2d 701, 536 N.Y.S.2d 60, 532 N.E.2d 1288; Matter of Save the Pine Bush v. Planning Bd. of City of Albany, 130 A.D.2d 1, 3-4, 518 N.Y.S.2d 466, supra ). Subsequent to these decisions three scientists finished their report finding that an approximate minimum of 2,000 acres is necessary for the survival of the Karner Blue Butterfly and the Pine Bush ecology, but that this minimum acreage would not be effective unless a comprehensive fire- management policy was implemented. The three scientists endorsed a five-lobe configuration designed to avoid the danger of a single catastrophic fire that could destroy the entire preserve and agreed that the secondary and primary preserve lines established by the Eastern New York Chapter of the Nature Conservancy...