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(This story, in slightly different form, originally appeared in the New York Law Journal.)

ALBANY-The devotion that members of a wildlife preservation group have shown toward the unique habitat of a rare butterfly and other threatened species gives them legal standing to challenge the rezoning of nearby property for construction of a hotel, a sharply divided state appeals court ruled yesterday.

Construction of a 124-unit hotel could adversely affect the ability of members of Save the Pine Bush to enjoy the unique pine barren habitat and the Karner Blue butterfly, giving them an interest in the zoning issue different from that of the public at large, a 3-2 Appellate Division, Third Department, panel ruled in Matter of Save the Pine Bush Inc. v. Common Council of the City of Albany.

The decision will be published next Thursday.

“Compared to other members of the public, we view the individual petitioners’ interests in the preservation and protection of the Preserve to be distinct and unique,” the majority held in a ruling by Justice E. Michael Kavanagh. “Their individual use of this property, coupled with their historic involvement in the creation of the Preserve and the protection of this habitat, give them a stake in this proceeding and standing to maintain this action.”

Having determined that the environmentalists have standing, the panel vacated the city council’s approval in November 2005 of a final environmental impact statement prepared under the State Environmental Quality Review Act (SEQRA).

While a wildlife expert hired by the developer of the hotel project, the Tharaldson Development Co. of North Dakota, concluded as part of the SEQRA process that no Karner Blue butterflies live on the 3.6 acres of property to be used for the hotel, the expert did not consider the project’s effects on other threatened plant and animal species in the area, the court ruled.

Those include the Frosted Elfin butterfly, the Hognosed snake, the Worm snake and the Eastern Spadefoot toad.

Justices Robert S. Rose and Leslie E. Stein joined in Justice Kavanagh’s decision.

The two dissenters complained that neither Save the Pine Bush nor the nine individual members who joined as petitioners in an amended petition have standing to challenge the city’s SEQRA review under the “well-established” principles in Society of Plastics Indus. v. County of Suffolk, 77 NY2d 761 (1991).

“The majority first sets forth the interest of the organization in protecting and preserving the Pine Bush and then concludes that the individual members have standing primarily based upon activities they have performed on behalf of the organization,” Justice Thomas E. Mercure wrote in a dissent joined by Justice Edward O. Spain. “In so holding, the majority misconstrues the concept of organizational standing as explained in Society of Plastics Indus.”

That case requires individual petitioners to demonstrate special harm to their individual rights to gain standing, the dissenters held.

“Therefore, while the majority purports to find individual standing here, it has in actuality rendered the rule set forth in Society of Plastics Indus, meaningless,” Justice Mercure wrote. “That is, the majority essentially concludes that the only showing required is that an organization has members who have acted in furtherance of its organizational purpose; there is really no need to show that the individual members have any distinct injury in fact.”

The dissenters argued that no matter how “remarkable and admirable” the works of Save the Pine Bush and its individual members were on behalf of the Pine Bush and the creatures living there, they would reverse Supreme Court Justice Stephen A. Ferradino’s ruling granting standing and dismiss the petition.

Advocates for Pine Bush

The case was the latest in a long line of actions filed by Save the Pine Bush, a group that was instrumental in the formation of the Pine Bush Preserve in the 1980s. Most of the suits–yesterday’s ruling cited 17 actions–have sought to block development projects near the 3,000-acre preserve in western Albany County.

The Pine Bush encompasses the largest remaining pine barrens on inland sand dunes in the United States. Among the rare species found in the Pine Bush is the blue lupine, a plant the Karner Blue butterfly needs to survive.

The Pine Bush is close to a heavily developed area of Albany and nearby Guilderland, which includes the sprawling Crossgates Mall. The hotel is to be built near the mall.

Justice Kavanagh reached a different conclusion in April in another case involving Save the Pine Bush and the preservation of potential Karner Blue habitat from development.

In Matter of Save the Pine Bush Inc. v. Planning Bd. of Town of Clifton Park, 50 AD3d 1297, a unanimous Third Department panel denied standing to Save the Pine Bush and 10 of its individual members to challenge the proposed construction of seven light industrial buildings in southern Saratoga County.

The cases are different, the majority noted yesterday in a footnote, because the petitioners could not prove an injury-in-fact different from the general public’s. No Karner Blue butterflies had been seen on the Saratoga County property since 2001 and the petitioners could not demonstrate a protected interest in viewing the butterflies on private property.

In the Albany County case, the petitioners demonstrated that the proposed project could lead to the possible destruction of the Karner Blue butterfly habitat in the public preserve, the court said.

Stephen F. Downs of Selkirk represented the petitioners. He was not available for comment.

Lynne Jackson, one of the Save the Pine Bush members named as individual petitioners, said yesterday, “We believe that SEQRA should be able to protect endangered species and when local municipalities ignore SEQRA, citizens need to be able to go to court and object.”

Albany Corp. Counsel John J. Reilly did not return a call seeking comment.

Thomas A. Shepardson of Whiteman, Osterman & Hanna in Albany, attorney for Tharaldson Development, said an appeal of the 3-2 decision to the Court of Appeals is automatic. But he said he had not yet talked to his client about its plans.

He said Tharaldson has been “parallel-tracking a reapproval process” with the city, including a study of the project’s effects on the species other than the Karner Blue butterfly. Approval of that “parallel” SEQRA process may be completed by the end of the year, Mr. Shepardson said. He said he agreed with yesterday’s dissenters.

“There is a lot of case law in the Third Department on standing and I am not sure where all of that stands in light of this ruling,” he said.

The panel took more than four months following oral arguments to hand down a ruling, reflecting the divisive nature of the case. It typically makes written rulings in its cases in less than half that time.

Joel Stashenko can be reached at [email protected].

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