Environmental Law cases

Friends of Grant’s Cottage v. New York State Department of Correctional Services (SC Saratoga Co. 1977) (Unreported) (Requirement of Environmental Impact Statement (EIS) – Historic sites)

            In 1976 the State Department of Correctional Services (DOCS) proposed to construct a state prison on top of Mount McGregor, an 1800 foot tall mountain in Saratoga County. The proposal was part of the boom in constructing prisons in New York State in order to expand inmate capacity as a result of the “war on drugs”. The prison site included Grant’s Cottage, where former President Ulysses S. Grant had lived in the six weeks before his death in 1885. After his presidency, General Grant had suffered business losses and was practically destitute, and he was dying from throat cancer. Mark Twain provided General Grant with money to move to Mount McGregor and write his autobiography, which Grant finished four days before his death. DOCS proposed to demolish Grant’s Cottage and turn it into a parking lot for the prison.

            Theodore Grey, Esq., a Saratoga Springs attorney representing Mary Lou Whitney, William Roohan, and other Saratoga Springs residents concerned about history, retained Mr. Oliver to represent Friends of Grant’s Cottage in opposition to DOCS proposal. This was the first environmental case Mr. Oliver ever handled. An Article 78 proceeding was commenced in Supreme Court, Saratoga County seeking to challenge DOCS decision to construct the prison and obtain an injunction against demolishing Grant’s Cottage.

            Friends of Grant’s Cottage argued that the decision to construct the prison should be declared null and void because DOCS had failed to conduct an adequate review of the project as required by the recently enacted State Environmental Quality Review Act (SEQRA). DOCS had failed to prepare an Environmental Impact Statement (EIS) concerning the decision to construct the prison, and had failed to take a hard look at alternatives to demolishing the historic cottage, such as leaving the cottage outside the prison site, or moving the cottage to an alternate location. Supreme Court, Saratoga County agreed with Friends of Grant’s Cottage and issued an injunction against construction of the prison until an EIS was prepared.

            During the process of preparing the EIS, DOCS decided to go ahead with construction of the prison and to leave Grant’s Cottage intact. Grant’s Cottage was located on the prison grounds, but outside any enclosure. As a result of the litigation, the public was able to visit the cottage by first checking in at the entrance booth of the prison. The prison was permanently closed in 2014, and today Grant’s Cottage is still open to the public. Grant’s Cottage was preserved for future generations with the original furnishings as when General Grant lived there. The building is preserved in close to its original condition with the same walls, furniture, curtains, utensils and personal effects as when General Grant died. Grant’s Cottage has been placed on the National Register of Historic Places and is a State Historic Site, visited by thousands of people every summer. See Friends of Grant’s Cottage website https://www.grantcottage.org/ for more information.

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Tri-County Taxpayers Association v. Town Board of the Town of Queensbury, 79 AD2d 337 (3d Dept 1981), modified 55 NY2d 41 (1982). (Remedy for violation of State Environmental Quality Review Act is to nullify project approval)

            In 1979 the Town Board of the Town of Queensbury adopted three resolutions to establish a new sewer district and build a proposed sewage treatment plant which would be placed on the ballot as a mandatory referendum for voters to decide. If passed the Town sewer district would be established as a part of the larger Warren County sewer system. The referendum was approved by Town voters, and subsequently the Queensbury Town Board passed two additional resolutions that gave the Town authority to create the sewer district and to issue bonds and anticipation revenue notes to finance construction. The proposed Queensbury sewer district would have constructed a sewer system from Bolton on the western side of Lake George south to the Village of Lake George, and from the Village north to the Town of Fort Ann on the eastern side of the lake.

             Tri-County Taxpayers, a local citizens group, was concerned that constructing a central sewer system in the southern basin would allow construction of large hotels and other tourists resorts and transform Lake George into a densely developed area similar to Lake Tahoe. The Tri-County Taxpayers Association retained Mr. Oliver to commence an Article 78 proceeding to challenge all five of the town’s resolutions and invalidate the results of the referendum.

            The Appellate Division, Third Department unanimously reversed the judgment of the Supreme Court Warren County and held that under the State Quality Review Act (SEQRA) the resolutions passed by Queensbury Town Board were “actions” that committed  the Town to a definite course of action and an Environmental Impact Statement (EIS) should have been prepared pursuant to ECL 8-0105(4) before the resolutions were approved and before the referendum. However, the Justices of the Appellate Division disagreed about what remedy should be granted. The three judge majority held that the Town of Queensbury should comply with SEQRA by preparing an EIS before any other steps could be taken toward construction of the sewer system, but that the Town of Queensbury’s resolutions should not be declared null and void.  Two justices dissented and argued that SEQRA required an EIS to be prepared before the Town Board passed the resolutions to construct the sewer system which committed the Town to a definite course of action, and therefore the Town's resolutions must be declared null and void.

            On appeal to the Court of Appeals, the only question was what remedy should be granted for a violation of SEQRA. Tri-County Taxpayers argued that the Town’s resolutions to construct the sewer system and the referendum should be declared null and void because the purpose of preparing an EIS was to provide the decision-maker with an analysis of the positive and adverse environmental impacts of a proposed project before the decision was made, and that the purpose of requiring an EIS was defeated if an EIS was not prepared until after the agency had already made the decision. Tri-County Taxpayers argued that if the courts allowed an EIS to be prepared after the agency had made its decision, government agencies would make decisions without benefit of the environmental impacts of a proposed project, and, rather than informing agency decision-making, EISes would become documents that justified decisions agencies had already made.

            The State Court of Appeals, by a vote of 4 to 3, agreed with Tri-County Taxpayers that the resolutions passed by the Queensbury town board and the mandatory referendum were null and void. The Court of Appeals majority explained why an EIS must be prepared before an agency has made a decision about a project:

“To achieve this objective an environmental impact statement should have been prepared and made available to the members of the town board and the public prior to the adoption of the resolutions of authorization in July, 1979.” 

The Court of Appeals majority also held that the EIS was required to be prepared before the mandatory referendum about the project:

“Aside from the significance of the availability of an environmental impact statement to the members of the town board at the time of action by the board (as well as to members of the public who might like to make their views with respect to the proposal known to members of the board prior to its vote), there can be little doubt that SEQRA commanded the preparation and filing of an environmental impact statement for public inspection prior to the special election held on August 17, 1979. As differentiated from actions by the town board, there was but a single opportunity for the district voters to express opinions in the electoral forum. There is no way the results of that special election could be reversed, and there would be no other necessity for a popular vote. Under the decision of the majority at the Appellate Division, however, the voters of the district would have been accorded their single opportunity to cast individual votes for or against the establishment of the sewer district at a time when they did not have the benefit of an environmental impact statement. Such a consequence would clearly frustrate the objectives of SEQRA.” Tri-County Taxpayers v. Town Board of the Town of Queensbury, supra, 55 N2d at 46-47.

The Court of Appeals held that the resolutions to construct a sewer district in Queensbury and mandatory referendum were invalid because no EIS had been prepared prior to the Town Board approving the resolutions or referendum.

            Tri-County Taxpayers was the first case where the Court of Appeals decided how SEQRA would be enforced by the courts. Tri-County Taxpayers is a landmark case which set the precedent that decisions by government agencies which violate SEQRA because no EIS was prepared should be declared invalid and null and void by the courts. Although a few cases have found exceptions, Tri-County Taxpayers continues to be the leading case in New York for the appropriate remedy courts should grant when SEQRA has been violated.

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Citizens to Save Minnewaska v. New Paltz Central School District, 95 AD2d 532 (3d Dept. 1983), leave to appeal denied 61 NY2d 605 (1984), leave to appeal denied 61 NY2d 853 (1984). (Saving Lake Minnewaska - Tax exemptions- No legislation by contract)

            In 1981 the Marriott Corporation applied to the New Paltz Central School District for a property tax exemption pursuant to Real Property Tax Law 485 and Commerce Law 121(3) to construct a 400 room resort hotel and conference center with a golf course and horseback riding facility on the shores of Lake Minnewaska. In order to grant the property tax exemption, the School Board was required to hold a public hearing and make certain findings. On the day before Marriott submitted an offer in the form of a binding written contract with the school district to pay the amount of 100% of the assessed taxes if casino gambling was legalized in New York State and Marriot instituted gambling on the site, in lieu of taxes and in consideration the School Board passing the resolution recommending the real property tax exemption for the project. The New Paltz Central School District passed a resolution of to recommend approval of the tax exemption.

            Mr. Oliver represented Citizens to Save Minnewaska, a local grassroots citizens group from New Paltz,  and commenced a combined Article 78 proceeding and declaratory judgment action that alleged the New Paltz Central School District had acted beyond the scope of its authority by passing the tax resolution because the School Board had entered into a contract to sell its vote, because the resolution violated the State Environmental Quality Review Act (SEQRA), and because the contract depended on a game of chance. The New Paltz Central School District moved to dismiss this petition, and the Supreme Court Ulster County dismissed the action. Citizens to Save Minnewaska appealed. 

            The Appellate Division, Third Department held that the New Paltz Central School District resolution that was passed in consideration of the terms of the contract offered by Marriot was beyond the scope of its authority under the Court of Appeals ruling that “All legislation ‘by contract’ is invalid in the sense that a Legislature cannot bargain away or sell its powers.” The Third Department reversed the decision of Supreme Court and declared the tax exemption resolution was invalid and null and void. As a result of losing the tax exemption, the Marriott project was never built, and subsequently the land was purchased by the State of New York and is presently known as Minnewaska State Park. See Lake Minnewaska was saved for future generations.  (https://parks.ny.gov/parks/127).

 

United States v. Town of Moreau v. United States Environmental Protection Agency, 751 F Supp 1044  (NDNY 1990) (PCB contaminated aquifer – CERCLA)

            From 1958 to 1968 General Electric (GE) used 30 acres of the Caputo landfill in the Town of Moreau as an industrial waste disposal facility for dumping fluids that were contaminated with PCBs from its capacitor plants in Hudson Falls and Fort Edward into the ground. In 1982 it was discovered the aquifer that supplied water for residential wells in the area down gradient from the Caputo site was contaminated by high levels of PCB tainted trichloroethylene (TCE), a known human carcinogen. General Electric had deposited 452 tons of waste into the ground over ten years.  As a result of the presence of TCE, the United States Environmental Protection Agency (EPA) installed temporary activated carbon filter systems on the wells of 70 residences in the town.

In 1983 the EPA and GE entered into an Administrative Consent Order pursuant to the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), also known as the federal “Superfund Law”, in which GE agreed to conduct a Remedial Investigation to fully define the nature and extent of contamination, and conduct a Feasibility Study of remedial alternatives from which the EPA would select a remedy that GE would implement at its expense. The Remedial Investigation found that hazardous substances with significantly high concentration of TCE were being released into the Town of Moreau aquifer.  The Feasibility Study outlined two restoration approaches, natural restoration and active restoration. In natural restoration, a slurry wall made of soil and clay would be constructed around the Caputo dumpsite by GE to prevent additional contamination from spreading and water monitoring would occur regularly to determine if levels of contamination were decreasing or if the plume was changing. The cost of the natural restoration approach was $3.2 million and did not provide for treatment to remove toxic chemicals from the water in the aquifer, which was expected to flush itself clean in time over many decades. This approach was known as the “natural attenuation” or “do nothing” method, whereby “the solution to pollution is dilution.” The active restoration approach included the slurry wall like the natural restoration approach, but also required a program of groundwater pumping and recharge. Water would be pumped out of the aquifer and into several facilities for cleaning and then pumped back down into the aquifer. This active restoration method was estimated to cost $7.8 million and would also take decades, but would clean the aquifer in decades less time than the natural restoration method. This approach was also known as the “pump and treat” method. The Feasibility Study recommended taking the natural restoration approach to the aquifer, which was less expensive and would take decades longer to clean the aquifer than active restoration.

            The State of New York and Town of Moreau submitted public comment opposing the natural restoration approach because GE had not committed to installing a permanent water supply to affected residences and future developments. The Town of Moreau demanded that GE install an adequate alternative water supply for the affected residences and alleged that GE had made an incorrect analysis of the number of homes affected by the plume of contamination. Despite the position of the State and Town, the EPA issued a Record of Decision (ROD) which selected natural restoration as the remedy for the impact area. The State responded to the EPA’s Record of Decision that “…the agreement with USEPA intends to conclude with General Electric Co. will, in essence, leave a once productive aquifer unusable, essentially forever.” 

            As a result of the State and Town of Moreau’s responses to the Record of Decision, the EPA agreed to modify the ROD to include a requirement that General Electric must provide a water supply for residences and for future residential development over the plume of contamination. In an Enforcement Decision Document in 1986, EPA stated its intention to choose the natural restoration approach. In June 1987 EPA again modified the Enforcement Decision Document (EDD) to require that GE must provide public water to area residences where wells were contaminated with pollutants at GE’s expense. However, in July 1987 EPA deleted this provision from the Enforcement Decision Document without explanation, and the Record of Decision stated: “The State of New York has been consulted and agrees with the approved remedies.” The Record of Decision completed the EPA’s Administrative Record.

            Mr. Oliver represented the Town of Moreau and advised the town to defy EPA and fight the Record of Decision (ROD). The Town opposed the ROD because the area that the water system would cover was too small, the quality and quantity of water from the proposed source of water supply in South Glens Falls was substandard, and EPA and GE had failed to obtain necessary construction permits. GE was unable to begin building the alternative water supply because the Town of Moreau refused to let GE on Town property and Town roads and threatened employees and contractors of GE with arrest for trespass on town property. As a result, EPA sued the Town of Moreau in the US District Court, Northern District of New York to obtain access to the Town property.

            The US District Court determined that permits from the Town, the New York State Departments of Health and Environmental Conservation for work on Town property affected by the “impact area” were not necessary under CERCLA because the federal superfund law superseded state and local permit requirements. The District Court granted the EPA’s motion for an Immediate Order in Aid of Access, which included an injunction against the Town’s interference with GE’s efforts to institute the remedies in the ROD. Thereafter EPA issued a Consent Decree which was the subject of comment by the State and Town and was reviewed by the District Court. 

            The Town of Moreau argued that the Record of Decision (ROD) issued by EPA should be declared invalid because EPA had engaged in deception and fraud in dealing with the State and Town. The State had made it clear prior to issuance of the ROD that the Moreau aquifer was contaminated with TCE at levels in excess of State regulations. EPA had informed the State of New York that it would order GE to provide a clean water supply not only for existing residences but also for future development in the impacted area, and the State’s concurrence with the ROD was based on the EPA’s representation that the source of the alternative water supply would be sufficient to provide clean water for future development. However, the Enforcement Decision Document (EDD) issued by EPA omitted the language which required the water supply to be adequate for future development over the impact zone, and deleted documents from the Administrative Record that had contained EPA’s representation to the State that the water supply would be adequate for future development.

             The District Court ordered that the earlier Consent Decree be vacated and that the Record of Decision drafted by the EPA be overturned on the grounds that the EPA had failed to provide for the fact that the Town of Moreau’s aquifer was permanently contaminated by GE and that EPA had removed certain documents from the administrative record. The Court held that the language in the ROD about providing sufficient water supply for future development in the impact area, which had been removed from the Enforcement Decision Document, “was the cornerstone of the State’s concurrence with the proposed remedy”, that the failure of the EPA’s Administrative Record to contain those documents was “a troubling matter”… that “gives the appearance of selective omissions” and that “…EPA may have misled the State into concurring with the revised EDD”.  As a result, the District Court vacated the EPA’s Consent Order. United States v. Town of Moreau, supra, 751 ESupp at 1051-1052.

            This was the first case in the United States where an EPA Consent Order for a superfund site under CERCLA was overturned. GE constructed the slurry wall around the Caputo dump site in 1990, and the Moreau aquifer is still contaminated with a plume of PCB laced TCE and will remain contaminated for hundreds of years. Subsequently the Town of Moreau intervened in a pending action for public nuisance against GE which had been commenced by the State Attorney General’s office. The public nuisance action against GE was heavily litigated for years. Some of the litigation in the public nuisance action is discussed below. Ultimately the Town of Moreau settled its public nuisance lawsuit against GE in the State courts. The settlement included GE paying to construct a source of water supply from the Town of Queensbury that was adequate to provide water for existing homes and for future development in the impact area, GE paying for construction of a water distribution system for residences over the impacted area, and GE paying for free water to impacted homes for ten (10) years.

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State of New York and Town of Moreau v. General Electric, 199 Ad2d 595 (3rd Dept 1993) (Public Nuisance – polluter is liable to pay damage to town for decreased tax revenues as result of lower assessed property values)

            In its complaint against GE in the public nuisance action in Saratoga Supreme Court, the Town of Moreau sought GE to pay for abatement of the contamination by TCE laced with PCBs in the groundwater aquifer, to pay for damages for the cost of the abatement, expert and counsel fees, damage to Moreau’s reputation, the reduction in economic development of the town, and a decrease in tax revenue from reduced real property tax assessments because of the toxic contamination.

            The Supreme Court Saratoga County held that the Town’s claim for damages from reduced commercial and residential development, injury to Moreau’s reputation, and the claims for counsel and expert fees incurred during litigation were dismissed because they were based on speculation. The court held that the Town of Moreau’s claim for decreased tax revenue as a result of reduced real property taxes should be allowed. GE appealed this later decision to the Appellate Division, Third Department, and Mr. Oliver represented the Town.

The Appellate Division held that the Town of Moreau could recover damages for decreased tax revenue as a result of reduced real property assessments homeowners received because the residential wells on their properties had been contaminated by GE, and that such damages for reduced revenue by the Town could be recovered for three (3) years prior to commencing the Town’s public nuisance lawsuit against GE and into the future. The Appellate Division ruling gave the Town authority to recover damages against GE for reduced tax revenue caused by contamination of the Town’s aquifer. 

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State of New York and Town of Moreau v. General Electric Company, 173 AD2d 939 (3d Dept 1991) (Public nuisance regarding toxic waste- Bill of particulars – Burden of proof to devise remedy)

            In 1982 the State of New York filed an action alleging public nuisance against General Electric (GE) in the Supreme Court Saratoga County for money damages as a consequence of GE’s improper disposal of toxic industrial wastes from its capacitor plants in Hudson Falls and Fort Edwards into at the Caputo dumpsite resulting contamination of the Town of Moreau’s aquifer. Subsequently the Town of Moreau made a motion to intervene as a plaintiff which was granted in 1987. One of the allegations in the Town of Moreau’s complaint was that GE had breached its duty of care by failing to provide adequate containers for toxic wastes containing the PCB tainted TCE the company was disposing of, and by failing to take measures to prevent the toxic wastes from being released into the environment.

GE sent a bill of particulars to the Town of Moreau which included demands for the Town to “Describe the type of containers which plaintiffs contend should have been used” and “Describe the method or methods of disposal which plaintiffs contend should have been utilized for the disposal of wastes which were generated at its plants at Ford Edward and Hudson Falls prior to 1970”.  The Town refused to respond to these demands on the grounds that responding would require the Town to pay for research and expert testimony, and it was not the Town’s burden to prove what type of containers the toxic wastes should have been stored in or how the toxic wastes should have been disposed of. GE moved to compel the Town to respond, and the Town cross-moved to vacate the demand with respect to those items. Supreme Court Saratoga County rendered a decision granting GE’s motion and ordered the Town to respond. Responding would have required the Town to expend tens of thousands of dollars for experts to research safe disposal methods of TCEs laced with PCBs.

            Mr. Oliver represented Moreau on its appeal. The appeal argued that it was not the Town’s burden of proof to engage in expert research that GE should have done before dumping toxic industrial wastes into the ground. The Appellate Division, Third Department held that the demands GE sought to have answered in the bill of particulars were a matter of expertise which was outside the allegations of the Town’s complaint, and that the demands were beyond the scope of a proper bill of particulars. The Appellate Division found that the Supreme Court should have granted the Town’s motion to vacate these items of GE’s demand because they were “palpably improper”, and these items in GE’s demand were vacated.

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State of New York and Town of Moreau v. General Electric, 201 AD2d 802 (3d Dept 1994) (Medical records of employees exposed to PCBs)

            In the public nuisance lawsuit Town of Moreau brought a motion to compel General Electric to comply with the Town’s notice for discovery and inspection to disclose the unredacted medical records of 65 GE employees who worked directly with PCBs at the Fort Edward and Hudson Falls plants and had complained of chloracne (contact dermatitis), upper respiratory ailments or other health complaints. Chloracne is a type of rash that results from exposure to PCBs, a known human carcinogen. The Hudson Falls and Fort Edward plants manufactured capacitors (transformers) that were used in electric transmission lines. PCBs are resistant to heat and was installed into the transformers at the plants to keep the temperature of transformers down when in operation. Many GE employees at the plants who worked directly with PCBs developed chloracne. GE had a medical clinic at the plants, and employees who developed chloracne were treated and taken off the production line. GE claimed that PCBs were not harmful or not as harmful as some claimed. The Town wanted the medical records to determine how many of the 65 had developed cancer and to prove that PCBs were toxic and that GE knew PCBs were toxic to humans.

            The Supreme Court Saratoga County found that the records were protected by physician-patient privilege and ordered that the disclosure of the medical records be made with all means of identification of the employees redacted. Mr. Oliver, representing the Town, appealed because without being able to identify the employees, the plaintiffs would not be able to contact the employees and determine whether they had gotten cancer.

            The Appellate Division, Third Department held that in order for the physician-patient privilege to attach, there must be a professional relationship between the physician and patient, information must have been acquired by the physician while attending the patient in a professional capacity and must have been necessary to enable the physician to treat the patient, the patient must not have waived the privilege, and the patient must have contemplated that the communication would remain confidential. The medical information collected at the GE clinic which the Town of Moreau was seeking had been shared with General Electric’s management personnel at the plants to allow them to determine a specific employee’s need to be removed from the production line because of exposure to PCBs during the manufacturing process. The information was also used in 10 scientific studies of the health effects of PCB exposure on General Electric’s employees. Also General Electric did not produce any evidence to suggest that its employees expected this information to remain confidential. The Appellate Division held that the physician-patient privilege did not apply to the employee’s medical records, reversed the decision of the Supreme Court, and ordered that the unredacted medical records must be disclosed to the Town and State.

GE did not want the employees’ medical records disclosed because there would be a public record that PCBs cause cancer and are a danger to human health, and because disclosure of the cancer rates might cause the former employees and/or their families to sue GE for wrongful death. Shortly after the Appellate Division’s decision requiring disclosure of the unredacted medical records of former employees, GE began serious negotiations which ultimately resulted in a settlement with the Town of Moreau. 

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The Albany Pine Bush

            The Albany Pine Bush is one of the largest inland pine barrens in the world, and is located in New York’s Capital District. Today, the Albany Pine Bush is the only remaining portion of Pine Barrens that once covered over 40 square miles. Throughout history the Pine Bush was thought of as a dangerous barren area, but today is known as an environmental, historical and cultural asset. It is home to the Karner Blue butterfly, an endangered species first identified by Vladimir Nabokov as a type specimen from the Pine Bush in 1944, and countless other threatened species. Mr. Oliver represented Save the Pine Bush and Friends of the Pine Bush in the 1980’s and 1990’s, and brought 19 published cases challenging proposed developments in the Pine Bush. The Save the Pine Bush cases developed the law in New York State regarding the State Environmental Quality Review Act (SEQRA), and have successfully protected a 3,200 acre Pine Bush Preserve that is one of the most litigated and researched parcels anywhere on Earth. In 2014 the Albany Pine Bush was designated as a National Natural Landmark by the National Park Service. Mr. Oliver’s contributions are highlighted in a statement by Steve Downs on the Save the Pine Bush website which can be viewed at:    http://www.savethepinebush.org/News/08MarApr/Lewis_Oliver.html

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Friends of the Pine Bush v. Planning Board of the City of Albany, 105 Misc 2d 168 (SC Albany Co 1980), reversed 86 AD2d 246 (3d Dept 1982), affirmed 59 NY2d 849 (1983). (Cost of installing improvements for residential subdivision  must be paid for by the developer, not by taxpayers)

              In the 1970s and 1980s Mayor Erastus Corning was in favor of encouraging development in the Pine Bush. General City Law 33 provided that in order to get approval to construct a residential subdivision the developer must provide for public improvements such as roads, water, and sewer in one of two ways: either by constructing and installing the improvements at its expense before the Planning Board gave its approval, or by posting a performance bond with the City in an amount adequate to pay for construction of the improvements by the City if the developer did not install them. The cost of installing improvements such as public water, public sewer and roads for a development can be substantial. Pursuant to Mayor Corning’s wishes, the Albany Planning Board adopted a policy of the City paying for the costs of installing improvements with City taxpayer dollars and not requiring the developer to post a performance bond for the full cost of the public improvements. This policy encouraged construction of residential subdivisions in the Pine Bush because the City taxpayers paid for public improvements, and the developer of a subdivision did not have to invest money up front to install public improvements.

            Friends of the Pine Bush commenced an Article 78 proceeding which  argued  that the Albany Planning Board acted illegally by approving the Dunes and Pinehurst subdivision plats without requiring the developers to either install the public improvements or post of performance bond adequate to cover the full costs of constructing public improvements. Mr. Oliver argued that the City of Albany acted illegally when it used taxpayer money from the City budget to pay for improvements in residential subdivisions, that the City was illegally subsidizing private developers who were profiting from the subdivisions, and that the City’s illegal practice was allowing favored developers to make profits without having to invest their own money.  The proceeding also argued that the Planning Board did not give adequate consideration to the environmental factors like the unique flora and fauna in the Pine Bush when approving the plats. The Planning Board disregarded the testimony of thirty-eight witnesses about the unique pine barrens ecosystem, and the Planning Board illegally excluded and failed to give weight to environmental considerations. The Albany County Supreme Court found that the decision of the Albany Planning Board was not arbitrary or capricious and that the approval of the challenged subdivision plats was proper. Friends of the Pine Bush appealed to the Appellate Division, Third Department.

The Appellate Division held that General City Law 33 mandates that the costs of improvements in a subdivision plat must be borne by the developer, and that the developer must either install the improvements before the Planning Board approves the subdivision or post a performance bond sufficient to cover the cost of the improvements. Although the Dunes and Pinehurst subdivisions were already under construction by 1982 and the City of Albany had already installed the public improvements at the City’s expense, the Appellate Division did not dismiss the appeal on the grounds of mootness since a question of general interest and substantial public importance was present and was likely to recur if not resolved.  The developer of the Dunes and Pinehurst had petitioned the Common Council of the City of Albany to construct the improvements and assess back the costs of the improvements to be paid by the homeowners who had purchased the benefitted properties.

             The Appellate Division held that under General City Law 33 this procedure was illegal and could result in excessive subdivision of lands not yet ready for building improvement resulting in serious economic loss to developers and tax delinquencies for the City. The Appellate Division issued a declaratory judgment that public improvements in a residential subdivision “must be installed or bonded” by the developer. The City of Albany appealed to the New York Court of Appeals, which held that the Appellate Division did not err in deciding the appeal in the Article 78 proceeding or the action for declaratory judgment. The Court of Appeals affirmed based on the opinion in the Appellate Division. The Friends of the Pine Bush case slowed down development of residential subdivisions in the Pine Bush because developers had to pay with their own money to install improvements like water, sewers, and roads rather than have these costs paid by City taxpayers.

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Save the Pine Bush v. Planning Board of the City of Albany, 96 NY2d 986 (3d Dept 1983), motion for leave to appeal dismissed 61 NY2d 658 (1983). (Lead agency under SEQRA- Type 1 Action)

            In 1979 the Common Council of the City of Albany passed a local law that created an Environmental Quality Review Board (EQRB) to act as lead agency and coordinate environmental review under the State Environmental Quality Review Act (SEQRA) for all projects in the City of Albany where more than one agency was involved in the action. The developer of the Karner Meadows subdivision proposed to construct 248 residences on 121 acres in the area of the Pine Bush known as Blueberry Hill, and the developer of the Anderson Office Park requested a zoning change to construct 250,000 square feet of office space in the Pine Bush. The EQRB issued a negative declaration for both of the projects and did not require the developers to prepare an environmental impact statement (EIS) for either. Mr. Oliver represented Save the Pine Bush in a combined Article 78 proceeding and declaratory judgment action.

            The Appellate Division, Third Department, held that the SEQRA statute at ECL 8-0111(6) mandated that the agency responsible for making the decision whether a project will be approved must be the lead agency for environmental review of the project because that was the only way to guarantee environmental concerns would be “…incorporate[d] into the decision-making process of state and local agencies.” The delegation of lead agency status to an agency other than the decision-maker, like the EQRB, was “inconsistent” with the role of the lead agency under SEQRA, and therefore the local law establishing EQRB was null and void. Save the Pine Bush v. Planning Board of the City of Albany, supra, 96 AD2d at 831.

            The Appellate Division reviewed the EQRB’s decision to issue a negative declaration and not to require preparation of an EIS.  The Environmental Assessment Forms (EAF) for both the Karner Meadows and Anderson Office Park showed that both projects exceeded the threshold for a Type I action under the SEQRA regulations, which presumptively requires preparation of an EIS. The Appellate Division held that the projects should have been classified as a Type I action, and preparation of an EIS should have been required, and therefore the approvals for both projects were declared invalid and null and void. Save the Pine Bush v. Planning Board of the City of Albany, supra, 96 AD2d at 830-831.

          

Save the Pine Bush v. City of Albany, 117 AD2d 267 (3d Dept 1986), affirmed 70 NY2d 193 (1987) (Cumulative environmental impacts of pending projects)

             In an unusual statement in a judicial opinion, the New York Court of Appeals declared that “The Pine Bush… contains the only remaining large pine barrens on inland sand dunes in the United States. Its unusual inland sand dune composition is the home of rare plant and animal species such as the endangered Karner Blue Butterfly (ECL 11–0535) which survives on the blue lupine, a plant indigenous only to the pine barren. The record establishes that the Pine Bush has a number of distinct characteristics worthy of protecting.” Save the Pine Bush v. City of Albany, supra, 70 NY2d 193, at 200 (1987).

            The Common Council of the City of Albany enacted three ordinances  pertaining to land use within the Pine Bush. The first ordinance established a new zoning district in the City of Albany by creating a new zoning classification, Commercial Pine Bush (C-PB), which would allow for single story office buildings in the Pine Bush, but did not designate any particular property that was subject to this new classification. The second ordinance established the Pine Bush Site Plan Review District, which created a review process to be used by the Planning Board when reviewing site plan approval applications for land use in the remaining 550 undeveloped acres of Pine Bush habitat. The third ordinance approved of Willard Anderson’s application to change the zoning classification of 29.9 acres of undeveloped land from residential to C-PB, which would allow Anderson to build an office complex of five two-story buildings. 

            The Court of Appeals upheld the creation of the C-PB zoning classification and the Pine Bush Site Plan Review District, but held that the approval of the zoning change for the Anderson Office Park was invalid because the Common Council failed to consider cumulative environmental impacts as required by SEQRA. At the time the EIS for the Anderson project was prepared there were ten (10) proposed projects covering 295.5 acres of the remaining 550 acres of underdeveloped Pine Bush pending for approval before various agencies of the City of Albany. Environmental Conservation Law 8-0109 and the SEQRA regulations at 6 NYCRR 617.11 required that the lead agency for a proposed project must consider the cumulative environmental impacts of the project together with the environmental impacts of other proposed projects that are part of an overall plan or policy.

Mr. Oliver argued that the Anderson Office Park project and the other ten (10) proposed projects were part of an overall plan by the City of Albany to develop the Pine Bush, and that the EIS should have taken a hard look at the cumulative environmental impacts of all the pending projects on the Pine Bush ecosystem before approving the zone change from residential to C-PB for the Anderson project. The Court of Appeals held that the failure of the EIS to consider the cumulative impacts of the ten (10) pending projects was a violation of the lead agency’s obligation under SEQRA, and that therefore the zoning change to C-PB for the Anderson Office Park was declared invalid and null and void.

            The Court of Appeals decision in the Anderson Office Park case is a landmark decision with regard to cumulative environmental impacts under SEQRA, and set a precedent that under SEQRA a lead agency must consider the cumulative impacts on the environment of proposed projects that are part of the same plan or policy or are otherwise related before approving an action. The declaration by the highest court in the State about the unique environmental value of the Pine Bush forced judges in subsequent Pine Bush cases to pay careful attention to environmental arguments made by Save the Pine Bush.

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Save the Pine Bush, Inc. v. Planning Board of the City of Albany, 130 AD2d 1 (3d Dept 1987), leave to appeal denied 70 NY2d 610 (1987), reargument denied 70 NY2d 928 (1987), certiorari denied 486 US 1032 (1988). (Endangered Species – minimum habitat for survival of Karner Blue Butterfly)

            After the Court of Appeals held in 1987 that approval of the Karner Meadows Residential subdivision violated SEQRA and was invalid, the developer submitted a new proposal and a final generic environmental impact statement (FGEIS) for development of the Karner Meadows residential subdivision. Phase one called for the residential development of 121 acres called Karner Meadows Residential Subdivision, and Phases 2 and 3 included commercial and multi-family developments. In 1986 the Planning Board of the City of Albany granted the developer conditional approval for the subdivision development, and Mr. Oliver represented Save the Pine Bush in challenging the approval in an Article 78 proceeding. The Supreme Court Albany County held that the Albany Planning Board failed to consider the minimum number of acres of Pine Bush habitat needed for the Karner Blue butterfly to survive, and therefore the approval of the Karner Meadows residential subdivision was arbitrary and capricious and invalid. The Planning Board and the developer appealed.

            The Appellate Division, Third Department affirmed the decision of the Supreme Court that the subdivision approval for Karner Meadows was invalid.  The Appellate Division stated that SEQRA required the decision making agency to identify the relevant areas of environmental concern about a project, take a “hard look” at them, and make a reasoned elaboration of the basis for its determination. The Appellate Division held that, since the State had designated the Karner Blue butterfly as an endangered species and the survival of the Karner Blue was dependent upon the unique pine barrens habitat of the Pine Bush, the question of minimum number of acres of Pine Bush habitat necessary in order for the Karner Blue butterfly to survive was an environmental impact that must be addressed in an EIS. The FGEIS did not address this issue, and therefore the approval of Karner Meadows subdivision was once again declared invalid and null and void. The Albany Planning Board and developer attempted to appeal to the Supreme Court of the United States, but the application for a writ of certiorari was denied.

The Appellate Division, Third Department decision in the Anderson Office Park case became a precedent in New York about environmental review of projects that might negatively impact an endangered species and established that SEQRA mandated that the lead agency make a determination of the minimum number of acres of habitat necessary for an endangered species to survive before approving a project.

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