Save The Pine Bush Inc. v. Cuomo, 1

• Decision Date: 20 January 1994
• Docket Number: No. 2,No. 1,1,2
• Citation: 200 A.D.2d 859,606 N.Y.S.2d 818
• Parties: In the Matter of SAVE THE PINE BUSH INC. et al., Petitioners, v. Mario M. CUOMO, as Governor of the State of New York, et al., Respondents. (Proceeding) In the Matter of SAVE THE PINE BUSH INC. et al., Appellants, v. Thomas C. JORLING, as Commissioner of the State Department of Environmental Conservation, et al., Respondents. (Proceeding)
• Court: New York Supreme Court — Appellate Division

Page 818

606 N.Y.S.2d 818 200 A.D.2d 859 In the Matter of SAVE THE PINE BUSH INC. et al., Petitioners,
v.
Mario M. CUOMO, as Governor of the State of New York, et
al., Respondents.
(Proceeding No. 1.)
In the Matter of SAVE THE PINE BUSH INC. et al., Appellants,
v.
Thomas C. JORLING, as Commissioner of the State Department
of Environmental Conservation, et al., Respondents.
(Proceeding No. 2.) Supreme Court, Appellate Division,
Third Department. Jan. 20, 1994.

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

Page 819

G. Oliver Koppell, Atty. Gen. (Maureen F. Leary, of counsel), Albany, for Mario M. Cuomo and others, respondents.

Nixon, Hargrave, Devans & Doyle (Ruth E. Leistensnider, of counsel), Albany, for City of Albany and others, respondents.

Before CARDONA, P.J., and MERCURE, CASEY, WEISS and YESAWICH, JJ.

MERCURE, Justice.

Proceeding (No. 1) pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Commissioner of Environmental Conservation which granted respondent City of Albany a permit to construct a landfill.

Appeal from a judgment of the Supreme Court (Cobb, J.), entered November 23, 1992 in Albany County, which dismissed petitioners' application, in a proceeding (No. 2) pursuant to CPLR article 78, to review a determination of respondent Commissioner of Environmental Conservation granting respondent City of Albany a permit to operate a landfill.

In August 1986, respondent City of Albany applied to respondent Department of Environmental Conservation for permission to construct a landfill adjacent to its existing Rapp Road landfill on a 36-acre site in the area known as the Pine Bush. The Department, as the lead agency under the State Environmental Quality Review Act (ECL art. 8), issued a positive declaration and the City accordingly prepared a draft environmental impact statement (hereinafter DEIS). The DEIS included a study that evaluated the minimum acreage necessary to preserve the Pine Bush ecology and included discussion of the procedure by which the City proposed to fund the necessary acquisitions to complete the preserve area (see, Matter of Save the Pine Bush v. Common Council of City of Albany, 188 A.D.2d 969, 591 N.Y.S.2d 897).

Respondent Commissioner of Environmental Conservation directed that a construction permit be issued, finding that the project would entail neither a taking nor the...