Save the Pine Bush, Inc. v. Planning Bd. of the City of Albany

• Decision Date: 30 July 1987
• Citation: 130 A.D.2d 1,518 N.Y.S.2d 466
• Parties: In the Matter of SAVE THE PINE BUSH, INC., et al., Respondents, v. PLANNING BOARD OF THE CITY OF ALBANY, et al., Appellants, and Benacquista, Polsinelli and Serafini Management Corporation, Intervenor- Appellant.
• Court: New York Supreme Court — Appellate Division

Page 466

518 N.Y.S.2d 466

130 A.D.2d 1

In the Matter of SAVE THE PINE BUSH, INC., et al., Respondents, v. PLANNING BOARD OF THE CITY OF ALBANY, et al., Appellants and Benacquista, Polsinelli and Serafini Management Corporation Intervenor- Appellant.

Supreme Court, Appellate Division,

Third Department.

July 30, 1987.

Vincent J. McArdle, Jr. (John C. Egan, Jr., of counsel), Albany, for appellants.

Oliver & Oliver (Lewis B. Oliver, Jr. and Harriet B. Oliver, of counsel), Albany, for respondents.

Rutnik & Rutnik (Peter A. Lynch, of counsel), Albany, for intervenor-appellant.

Before MAHONEY, P.J., and CASEY, YESAWICH, LEVINE and HARVEY, JJ.

YESAWICH, Justice.

This appeal is another growing out of proposed commercial and residential development of the Pine Bush area located within respondent City of Albany (see, 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 [1987]; Matter of Save the Pine Bush v. Planning Bd. of City of Albany, 96 A.D.2d 986, 466 N.Y.S.2d 828, lv. denied 61 N.Y.2d 668, 472 N.Y.S.2d 89, 460 N.E.2d 230). The Pine Bush, a unique inland sand dune and habitat of rare plants and animal species such as the endangered Karner Blue butterfly, is recognized as having "a number of distinct environmental characteristics worthy of protecting" (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 [1987] ).

In the early 1960s intervenor, Benacquista, Polsinelli and Serafini Management Corporation (BPS), purchased 250 acres of land in the Pine Bush and in 1978 presented a conceptual plan for its development in three phases. The first phase called for residential development of 121 acres referred to as the Karner Meadows Residential Subdivision (KMRS). Phases two and three envisioned developing the remaining acreage for commercial and multifamily purposes. This plan, though initially approved by respondent Planning Board of the City of Albany (Board), was subsequently found not to have been in compliance with the State Environmental Quality Review Act regulations (ECL art. 8 [SEQRA] ) and was annulled (Matter of Save the Pine Bush v. Planning Bd. of City of Albany, 96 A.D.2d 986, 466 N.Y.S.2d 828, supra ).

In August 1984, BPS submitted a new proposal for approval of only the 121-acre KMRS development. After several draft environmental impact statements were prepared and public comment was had thereon, a final generic environmental impact statement (FGEIS) was submitted to the Board in June 1986. The Board granted BPS conditional approval for the KMRS development in August 1986, after which petitioners instituted this suit seeking review of the Board's determination. Supreme Court annulled the Board's decision, prompting this appeal by respondents and BPS. We affirm.

The standard of judicial review of a SEQRA determination is whether the reviewing agency identified the relevant areas of environmental concern, took a "hard look" at them (H.O.M.E.S. v. New York State Urban Dev. Corp., 69 A.D.2d 222, 232, 418 N.Y.S.2d 827), and made a reasoned elaboration of the basis for its determination (see, Chinese Staff & Workers Assn. v. City of New York, 68 N.Y.2d 359, 363-365, 509 N.Y.S.2d 499, 502 N.E.2d 176; Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 417, 503 N.Y.S.2d 298, 494 N.E.2d 429). Though easily articulated, this standard is often difficult to apply.

Here, Supreme Court concluded that a "hard look" cannot be said to have occurred without "consider[ing] the question of what is the minimum acreage that the Pine Bush ecology needs to survive" or "the number of acres that is a minimum habitat in order for the Karner Blue butterfly to survive". We agree.

While respondents and BPS suggest that resolution of this issue is "outside the scope of a generic EIS [environmental impact statement]", we deem it precisely the kind of environmental issue that needs to be evaluated when, as here, the habitat of an endangered species is at risk (6 NYCRR 182.6[a][2] ) and the municipality has opted for maximum development of the land area involved without proposing any substantively salutary mitigating measures which would minimize the adverse environmental effect of its decision; to allow the Board to do otherwise would frustrate the objectives of SEQRA.

Admittedly, an environmental impact statement need not identify and address every conceivable environmental...