Troy City Council Decision on the Environmental Review for the Lansingburgh Second Avenue Apartments Development considered “Arbitrary, Capricious and Contrary to the Law” by Pace Environmental Litigation Clinic
July 05, 2022, Troy, NY. The Pace Environmental Litigation Clinic on behalf of The Friends of the Mahicantuck filed an Article 78 petition in the Rensselaer County Supreme Court on Saturday, July 2. The petition alleges that the amended zoning of 1011 2nd Avenue is in violation of Troy’s zoning code, is considered illegal “spot zoning” and inconsistent with the City’s comprehensive plan. The petition also appeals the underlying “Negative Declaration” the council issued due to “various significant adverse impacts that would occur as a result of the apartment complex project requiring a positive declaration” in the State Environmental Quality Review process that concluded in May of this year.”
An Article 78 proceeding is the main procedural vehicle by which the public can appeal a decision of a local agency to the New York State courts.
Friends of the Mahicantuck’s Co-Founder Jessica Bennett, the petitioner of the lawsuit, said that they are requesting that the Court nullify the City Council’s May 2022 decision in which the council changed the zoning code to accommodate the development to the detriment of the community at large. The petition also states that the City Council did not consider substantial evidence for potential significant adverse environmental impacts and relied on wrongly issuing a negative declaration to allow a zoning change.
The nationally renowned Pace Environmental Litigation Clinic has taken on the case.
“New York state has some of the strongest environmental protection laws in the country, but they only work if local governments follow them”, says the clinic’s Managing Attorney, Todd D. Ommen.
Student Attorney Logan H O’Connell explains: “Environmental issues transcend borders, but the challenge of environmental protection begins at the local level.”
The Friends of the Mahicantuck describe the filing as a last resort that became necessary as the city council failed to take the required ‘hard look’ at significant negative impacts the development could have. “We do not take this step lightly,” says Bennet. For Bennet, the city council’s failure to take the required hard look at impacts “is particularly disheartening, when it comes to a site of such critical cultural and historic importance to Indigenous Peoples.”
“What are the priorities of this city council, if not to prevent harm and negative impacts? Instead of taking a ‘hard look’ at the impacts of this development, the council appeared to not have any interest in examining them at all,” said Sarah Bachinger, who is also a co-founder of the group. “At meetings, council members made statements to the effect that development in some form would be a foregone conclusion. This is itself concerning, but wouldn’t that make the required ‘hard look’ at impacts more important, not less? At a bare minimum, the council could have made a better effort to show they pay attention and listen when Indigenous leaders spoke on impacts to them instead of playing on their phones.” (Link: Times Union Commentary)
The Friends of the Mahicantuck are concerned about the council’s decision to forgo a public scoping process for all of the potential significant environmental issues to be properly addressed for a development of this scale.
Bachinger states: “It perhaps is challenging for officials to recognise and examine even the most obvious significant impacts, when they appear to pay more attention to the applicant’s needs and interests than to the impacts and potential harm to their own constituents and communities. Council members stated that there is nothing they could do to protect this land. What they could do: at a bare minimum, don’t skirt the law.”
Bennett concurs by adding: “Council members appeared to turn a blind eye to the impacts on the community, while going out of their way to further the developer interests in profits and a process that was cut short - and to that end ultimately appear to have violated and bent due process, Troy’s own zoning code, the comprehensive plan, and State laws protecting communities from negative impacts."
The Article 78 filing comes after two years of community opposition to a proposed apartment project that would lead to the destruction of an important Mahican cultural and historic site and Troy’s last forest along the Hudson River. The Friends of the Mahicantuck are a grassroots coalition of local community members, Indigenous Peoples of the region, and regional and statewide advocacy and conservation groups.
“Of central importance to our work was the close collaboration with Schaghticoke First Nations, and the support of members of several Indigenous Tribes and Nations working in concert with other local communities and neighbors in Troy” explains Bennett.
Sachem HawkStorm is sachem (hereditary chief) of the Schaghticoke First Nations, one of the remaining Tribes of the Eastern Woodlands. Sachem HawkStorm has provided guidance to and worked with the Friends of the Mahicantuck from when the group first came together.
“We have been in treaty with New York, New France and New England and the Six Nations (Five Nations then) since the Witenagemont Vale of Peace treaty of 1676 at Old Schaghticoke, which is not far from this forest. We honored that treaty, but unfortunately this has not been very reciprocal,” says Sachem HawkStorm. “We have been here, we are still here, and we are still fighting the same fight we have been fighting back then. But we are fighting this fight together, with people of many walks that are all coming together in unity for this land and the water and all living things with it. That is, why we have made it this far: because the community keeps speaking up, showing up to hearings, writing about it. This is what we want to renew: We want to renew our treaties, our covenant chain, replant the peace tree that was planted in 1676, reform this union that has been broken in some parts while we are repairing others, and revisit what it means to be together in great relationship with each other and to live in reciprocity.”
“Our work is based on empowering local communities by building coalitions. The strength of this coalition comes from its diversity, including Indigenous Peoples, local neighbors, advocacy groups and experts from across the state and beyond. All of our partners are critical in helping the impacted communities advocate for themselves,” Jessica Bennet explains. To that end the Friends of the Mahicantuck worked closely with and have the support of Riverkeeper, Scenic Hudson as well as many other regional, statewide and national organizations.
“We have been engaged in this process for several years,” said Rebecca Martin, Director of the Community Partnership Program at Riverkeeper. “The record has been well established on the potential significant environmental impacts of this development. Following the disappointing outcome of the city’s environmental review process, we were eager to share our resources and connect our upriver community partners with the Pace Environmental Litigation Clinic to provide support and protection to the impacted community members, Indigenous Peoples and the Hudson River.”
"For nearly two years, Scenic Hudson has been writing letters and providing testimony to the City of Troy stating that rezoning this parcel to accommodate 230 apartments would be inconsistent with the City's Comprehensive Plan," said Jeffrey Anzevino, Scenic Hudson's Director of Land Use Advocacy. "The Plan, Realize Troy, identifies the site as appropriate for low rise residential, defined in the plan as low density, ground oriented buildings of three stories or fewer. In fact, the City's own Planning Commission on January 28, 2021 voted 4-1 to recommend against the proposed rezoning. That's why Scenic Hudson was alarmed that the City ultimately decided to vote to rezone the archaeologically-sensitive land of significance to Indiginous Peoples for a high density apartment project. Scenic Hudson wishes the Friends of Mahicantuck all the best in their continued efforts to protect this land in the best interest of the community."
About Friends of the Mahicantuck
The Friends of the Mahicantuck, named after the Algonquin-language word (Muhheakantuck, “river that flows both ways”) for the Hudson River, is a broad community coalition dedicated to protecting and advocating for Indigenous Rights, environmental justice, and ecologically sound land-use in the Capital Region. The group focuses in its work on empowering communities to speak and advocate on their own behalf through training, advocacy and coalition-building. The group formed to protect a 5000 years old, National Register eligible Indigneous cultural-historical site and Troy’s last remaining and untouched waterfront forest along the Hudson. It has been working since its inception with various Indigneous communities, nations and community members, especially Schaghticoke First Nations. The Friends of the Mahicantuck have been collaborating particularly closely with Riverkeeper and Scenic Hudson on the protection of Troy’s sacred, native forest.