Personal Mailing from Phil Herrington to Brunswick Residents  (mailed out around 4/22/09)
 

To:       Members of Brunswick Smart Growth
From:   Steering Committee
Re:       Update on Second Lawsuit
Date:    February 1, 2009  

Over a year ago Brunswick Smart Growth initiated a second lawsuit seeking to require that the Town Board update the Town’s Comprehensive Plan and Zoning Ordinance before approving any new planned development district (PDD) proposals.  As you know, the lawsuit was prompted by a series of actions taken by the Town Board to approve separate large development proposals, which together would increase the population of the Town by more than 20%. Currently the merits of this lawsuit are waiting to be addressed by the Court.  

The Town Board’s strategy of responding to the suit has been to raise procedural arguments that prevent a hearing of the substantive merits of the case, while blaming BSG for the inevitable costs created by these tactics.   First, the Town Board sought to have the case moved from Albany County to Rensselaer County so that it could be heard by the judge who ruled (in favor of the Town Board) on our first lawsuit.  That request has been denied by the Court.  Now the Town Board is seeking to have the case dismissed based on two primary procedural grounds:  (1) that BSG lacks standing to challenge what the Town Board is doing, and (2) that there is no justiciable issue for the Court to resolve. When a court is asked to dismiss a case for lack of standing, it is being asked to decide that the person who has brought the lawsuit (meaning BSG) does not have a reason that is recognized by law to bring the lawsuit. When a court is asked to dismiss a case because it is not justiciable, it is being asked to decide that there is no legally recognized controversy between the parties and therefore there is nothing for the court to resolve.  

We will try to explain the significance of these procedural arguments, however, it would be helpful to briefly review the substance of the second lawsuit. While the lawsuit has a number of complex legal issues, it actually has three essential parts.

 1.  The Town's existing Comprehensive Plan for land use is legally deficient because it does
              not provide for periodic review and update as required by State statute.

 2.  The Town Board has failed to implement the planning principals outlined in the existing Comprehensive Plan because it has not updated the Town's Zoning Ordinance and map.

 3. Instead of updating the Zoning Ordinance and map in a comprehensive, planned manner as called for by the current Comprehensive Plan and by State statute, the Town Board is implementing a policy of ad hoc, piecemeal rezoning by adopting various developers' proposals through the use of "planned development districts. ”  In addition to not complying with the planning that is called for by the Comprehensive Plan, this policy fails to consider the cumulative and growth inducing impacts of the various proposals.

In our case, the Town Board is in effect saying that BSG does not have a reason to ask the Court to look at the Town's Comprehensive Plan and relevant State statute in order to decide whether there is a legal defect that needs to be corrected.  The Town Board is also saying that we do not have a reason to ask the Court to look at the Comprehensive Plan to decide if, as it is currently written, it calls for updating of the Zoning Ordinance before making individual changes for proposed developments.  Similarly, the Town Board is saying that these questions do not present legal issues for the Court to resolve. Our concern with the strategy of the Town Board in asserting that we do not have a right to have these issues heard is that the result could be a situation where the government's actions are being insulated from legal scrutiny.          

The rules that govern standing and justiciability are important.  As was said in one famous case their purpose is to, "assure that groups whose interests are only marginally related or even inconsistent with the purposes of the statute cannot use the courts for their purpose at the expense of the statutory purposes."  However, BSG is a group of citizens who have come together for the purpose of advocating that its local government adopt and administer adequate and appropriate land use regulations.  We believe that this purpose of BSG is specifically within the purposes of the statutes involved because these statutes are intended to protect the citizens from ill-considered and unplanned development and to give the citizens a voice in that planning process.  The failure of the Town Board to update the Comprehensive Plan and the land use regulations constitutes a continuing and ongoing violation of these statutes because the updated land use regulations are necessary to guide development of the Town.  Instead, the process being followed by the Town Board in effect puts private developers in the role of planning the development of the Town, which may or may not be in the best interests of all of the citizens of the Town.

You probably signed our petition to the Town Board asking that the Comprehensive Plan be updated before any of the several proposed large PDD's is approved.  As you can see, the lawsuit reflects the request made in our petition.  Despite the request made by more than 2,000 Town residents who signed this petition, the Town Board proceeded without updating the Comprehensive Plan.  Thus, in addition to ignoring the request made by its citizens, the Town Board is now also saying that its citizens do not have a legal right to ask the court to look to see if its failure to update the regulations is legally defective.

It is unfortunate that the Town Board has adopted its strategy because it is preventing what should be treated as important legal issues from being considered by the Court.

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"Brunswick should limit large-scale commercial and/or industrial development.
Brunswick should consider using its land use regulations to limit large-scale commercial and industrial development to businesses that do not negatively impact the environment."     -  From page 26 of the Town of Brunswick Master Plan Document