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

October 27, 2009

IN THE MATTER OF SAVE THE PINE BUSH, INC., ET AL., RESPONDENTS,
v.
COMMON COUNCIL OF THE CITY OF ALBANY, APPELLANT, ET AL., RESPONDENT.



The opinion of the court was delivered by: Smith, J.

We hold 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. Applying that rule to this case, we hold that the individual petitioners who are members of petitioner Save the Pine Bush, Inc., and the organization itself, have standing to challenge an action alleged to threaten endangered species in the Pine Bush area.

We also conclude, however, that petitioners' challenge fails on the merits. 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. 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.

I.

In September 2003, Tharaldson Development Company, the owner of a 3.6 acre parcel of land located on Washington Avenue Extension in Albany, applied for a rezoning of the parcel to allow for construction of a hotel. Though zoned for residential use, the property was at that time a parking lot. Adjacent properties were occupied by shopping malls and commercial office buildings.

Tharaldson's property is not part of the area protected by the Albany Pine Bush Preserve Commission, but it is near to protected areas, including Butterfly Hill, a habitat of the endangered Karner Blue butterfly. Butterfly Hill is said by petitioners to contain "[t]he largest population of Karner Blue butterflies south of the [New York State] Thruway", and, thanks in part to petitioners' efforts, significant Pine Bush acreage has long been set aside for the preservation of Karner Blues (see Save the Pine Bush, Inc. v Common Council of the City of Albany, 188 AD2d 969 [3d Dept 1992]). The effect of the hotel construction, if any, on Karner Blues was recognized from the outset as the principal environmental issue raised by the proposal. Tharaldson also acknowledged that there would be some impact on existing drainage patterns, and on traffic.

The Common Council of the City of Albany (the City) determined that the proposed rezoning required the preparation of an EIS. In August 2004, the City circulated to interested parties a "Draft Scoping Checklist" for the EIS, listing a number of environmental aspects of the project that it planned to examine, including water resources; transportation and traffic; terrestrial and aquatic ecology; and "Pine Bush." Under each of the latter two headings, the checklist said that the impact on the Karner Blue butterfly's habitat would be analyzed. No other plant or animal species was mentioned in the checklist.

A letter sent by the Department of Environmental Conservation (DEC) in response to the draft checklist contains the first mention in this record -- and the last, before the bringing of this lawsuit -- of species that are now central to this case. The DEC said "it is important, and indeed essential, that this project include a detailed evaluation of potential site use by Karner blue butterflies," but it added "that the Karner blue butterfly is one species in a rare habitat that is known to support numerous rare or unusual species." It named four other of these species -- the Frosted Elfin butterfly, the Hognosed Snake, the Worm Snake, and the Eastern Spadefoot Toad -- and asked that the City's biological investigation encompass them.

Having received comments on the checklist, the City and Tharaldson completed the preparation of a draft environmental impact statement (DEIS). This document, as accepted by the City in March 2005, contained more than 500 pages, including 68 of text and 12 appendices. The executive summary identified two "Significant Items": the proximity of the project to the Karner Blue butterfly habitat and an increase in traffic. Several other subjects, including water resources, air quality, and the potential for an increase in exposure to tick-borne and mosquito-borne diseases, were discussed in the text. Among the appendices was a report by a biologist, Dr. Richard Futyma, who had repeatedly visited the site of the proposed hotel, had been able to find no Karner Blues, and had concluded that the site "does not constitute a significant resource for the Karner blue butterfly." Nothing was said in the DEIS of the other species that DEC had identified in its earlier letter.

The DEIS, like the checklist, was made available for comment. Among the commenters were the United States Fish and Wildlife Service (FWS), the Albany Pine Bush Preserve Commission (APBC) and DEC. All three discussed Karner Blue butterflies in some detail. None of these agencies' comments, and no other comments on the DEIS that the parties have called to our attention, made any specific reference to the Hognosed Snake, the Worm Snake or the Eastern Spadefoot Toad. The FWS and DEC comments mentioned the Frosted Elfin briefly, and APBC's comments referred with equal brevity to a species that had not, apparently, come up before: the Adder's Mouth Orchid. The FWS and APBC comments also referred generally to possible impacts on non-butterfly species.

In July 2005, Dr. Futyma supplemented his report to address comments on the DEIS. As to the Frosted Elfin butterfly he said that it is "likely to occur in the same places as Karner blue butterflies"; that the plants on which it is known to feed "are absent or rare in the Albany Pine Bush"; and that he observed no Frosted Elfins on the proposed hotel site. He also listed all the plants he observed growing on the site; the Adder's Mouth Orchid was not among them. Like the commenters on the DEIS, he said nothing about the Hognosed Snake, the Worm Snake or the Eastern Spadefoot Toad.

The City accepted the final EIS in November 2005 and approved the zoning change in December 2005. In March 2006, Save the Pine Bush, Inc. and nine of its members began this proceeding challenging the City's action under SEQRA. The individual petitioners alleged that they "live near the site of the hotel project" and that they "use the Pine Bush for recreation and to study and enjoy the unique habitat found there." The amended petition contained nine causes of action, most of them based, at least in part, on alleged failures to consider adequately the need to protect the Karner Blue butterfly. All these causes of action have now been dismissed, and petitioners do not challenge their dismissal. The only surviving cause of action is the third, in which petitioners asserted that the EIS was deficient for failing to evaluate possible threats to the "Frosted Elfin Butterfly or any other listed species." The third cause of action named four other species: the Adder's Mouth Orchid, the Hognosed Snake, the Worm Snake and the Eastern Spadefoot Toad.

Supreme Court denied a motion to dismiss the proceeding for lack of standing, and in a later opinion upheld the third cause of action, vacated the City's SEQRA determination and annulled the rezoning. Supreme Court acknowledged that the EIS gave "considerable attention... to the impact the project may have on the off-site Karner blue butterfly population, and to a lesser extent the Frosted elfin butterfly," but found it flawed because it did not contain "a hard look" at the potential impact of the action on other rare plants and animals.

The Appellate Division affirmed, with two Justices dissenting (Save the Pine Bush, Inc. v Common Council of the City of Albany, 56 AD3d 32 [3d Dept 2008]). While concluding "that none of the individual petitioners resides close enough to the proposed project so as to presumptively demonstrate that they have sustained demonstrable injury different from the public at large" (id. at 36-37) the majority held that evidence "that they regularly use the Preserve" and that "at least one of them resides in sufficient proximity to the Preserve to facilitate that use" was enough to establish standing (id. at 37). On the merits, the Appellate Division majority agreed with Supreme Court that the EIS did not address adequately the project's potential impact on species other than ...


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