A lawsuit over the Clifton Park habitat of the Karner blue butterfly will go to the state Appellate Division.
An appeal has been filed with the state Appellate Division in the dismissal of a 2006 lawsuit filed by Save the Pine Bush, Inc. and 11 individuals who challenged a Clifton Park Planning Board warehouse site plan approval granted that summer.
The project was approved by the board together with a state Environmental Quality Review Act negative declaration — a determination meaning the planning board found that the building plan was not likely to have a significant adverse impact on the environment.
The Sept. 27, 2006, suit challenged the process used by the planning board to grant the approval. The lawsuit had claimed the board violated SEQRA by issuing the negative declaration despite adverse impacts of the project on the endangered Karner blue butterfly and its habitat along Wood Road, including the project site, and by six other causes of action, including not taking a `hard look` at the project’s impact as SEQRA requires; failing to consider cumulative impacts of the project with others in the vicinity of Wood Road; conducting a `segmented` review of a broader plan of development by the applicant; and not requiring creation of a Supplemental Environmental Impact Statement.
The plaintiffs also alleged that a submitted plan to `manage` the site falls far short of the town’s own requirements, as issued after a 1991 generic environmental study of the Wood Road area. The individual plaintiffs included four town of Clifton Park residents and five board members of Save the Pine Bush, a regional environmental protection organization.
On Nov. 3, 2006, acting state Supreme Court Judge Barry Kramer granted motions by the town of Clifton Park and project applicant DCG Development Company to dismiss the case based on their claims that Save the Pine Bush and the citizen plaintiffs all lacked standing to challenge the town’s approvals.
Clarksville attorney Peter Henner filed the appeal of Kramer’s dismissal on Nov. 1, 2007. The appeal should be heard sometime in mid-February, Henner said.
`Save the Pine Bush is the leading organization devoted to advocacy for habitats of the endangered Karner blue butterfly in New York’s Capital District region, which is part of a geologic region known as Glacial Lake Albany. Glacial Lake Albany formed at the end of the last Ice Age, some 10,000 years ago, and includes large portions of what is now southern Saratoga County,` Save the Pine Bush Secretary Lynne Jackson said.
The advocacy group says it and its members have been harmed by the failure of the town and its planning board to meaningfully protect and restore the Karner blue habitat at Wood Road, over many years’ time. The appeal notes that a 1994 requirement to save the habitat established as part of other project approvals for the same applicant was never followed.
Jackson said the group’s position is that the 2006 site plan approval and state environmental determination issued by the planning board `will promote the extirpation of an endangered species — the Karner blue butterfly.` She notes that because of this, Save the Pine Bush maintains it has intrinsic standing to sue, regardless of its members’ geographic proximity to the site.
According to Save the Pine Bush member William Engleman, the Karner blue butterfly in New York only exists in small areas of four counties within the vast area once encompassed by Glacial Lake Albany ` Albany, Saratoga, Schenectady and Warren counties.
Engleman said the Clifton Park habitat is important because should the Pine Bush preserve see its last Karner blue butterfly, it could be repopulated with those from Clifton Park.
`It’s my opinion that the town of Clifton Park is presiding over an extinction-level event,` he said. “
