Albert K. Butzel on Land Use Litigation and Lobbying

Albert K. Butzel

Albert K. Butzel did everything he could to avoid going to law school. After graduating from Harvard College, Butzel spent a year in Paris trying to become, as he put it, Ernest Hemingway or F. Scott Fitzgerald. He made a deal with his father, who was an attorney, that he would go to law school if he did not succeed as a fiction writer. About a year later, Butzel enrolled at Harvard Law School.

Having grown up in the rural town of Birmingham, Michigan, Butzel had a natural predilection for the open country that soon turned into an interest in land use law. At Harvard, he took a summer job with Professor Charles Haar, an authority on land use law. Together, they analyzed the zoning regulations of various state governments.

Storm King Mountain. When Butzel began working as an associate at Paul, Weiss, Rifkind, Wharton & Garrison LLP in 1964, he specifically requested to work in the corporate department and to not do any litigation. About six months later, co-founder Lloyd Garrison asked him to help out on what eventually became the landmark Storm King Mountain case, which defeated Con Edison’s proposal to build a power plant in the Hudson Highlands. For Butzel, his unexpected involvement forced him to learn how to be a litigator.

The Second Circuit decision, Scenic Hudson Pres. Conf. v. FPC, 354 F. 2d 608 (2d Cir., 1965), is often cited as the basis of modern environmental law. It introduced important concepts such as standing in court to protect nature, citizen suit legislation, the environmental review process, and the balancing of economics with the “preservation of scenic beauty and historic resources.”

Westway litigation. In 1971, Butzel co-founded Berle, Butzel, Kass & Case, where he remained until 1985. During that time, he took a lead role in the litigation challenging Westway, the massive proposal to extend the West Side of Manhattan by a landfill from Battery Park City to Midtown and to construct a buried interstate highway in the landfill. Butzel initially managed to get the project delayed by arguing that the City and State had not made a strong enough case to receive an air permit. Later on, the Environmental Protection Agency persuaded the State to do additional environmental studies, which revealed that the areas of the Hudson River to be filled in were winter nursery grounds for 35 percent of the population of juvenile striped bass in the River. In 1985, Judge Thomas Griesa set aside the permit for the landfill, which, when affirmed by the Second Circuit, led to the project’s ultimate demise.

Hudson River Park. After leaving his firm, Butzel spent another five years writing fiction. But he soon became involved with the development of Hudson River Park, the waterfront area between 59th Street and Battery Park, which he regards as the successor to Westway. During the Westway litigation, Butzel had worked with architects to develop alternative plans to build a park and a vibrant waterfront. He believed that the only way to prevent other environmentally damaging projects like Westway from being developed in the area would be to put something popular on the piers that the public would fight to protect.

Butzel founded and chaired the Hudson River Park Alliance and later served as President of Friends of Hudson River Park.Working as a lobbyist instead of a lawyer, Butzel organized a coalition of civic leaders to convince the State and City to support and fund the park with $420 million in public financing and to create legislation protecting the park. Whereas an attorney’s job is to devise a solution to a set of facts, Butzel describes lobbying as the art of creating consensus by identifying political players and persuading them that it is in their best interest to support a common goal.

Current projects. When Butzel stepped down as president of Friends of Hudson River Park, he thought he might work as a lobbyist or consultant. To his surprise, he has reentered to the legal profession as a solo practitioner and is currently working on a variety of land use cases, both as an individual attorney and through the Urban Environmental Law Center, which was founded a decade ago to provide affordable land use representation.

Butzel is representing Save Coney Island, a grassroots activist group, in its lawsuit challenging the Bloomberg Administration’s rezoning of the Coney Island amusement park area. The group wants the City to relocate the planned hotels outside of the amusement district and expand the amount of acreage that has been reserved for amusements.

Butzel is also working with local neighborhood groups to stop St. Vincent’s Hospital’s from demolishing the O’Toole Building in order to build a new hospital facility. Even if demolition never occurs due to St. Vincent’s recent financial difficulties, he wants the Landmarks Preservation Commission to withdraw its approval of St. Vincent’s hardship application. According to Butzel, Landmarks created a “campus concept” that would allow a not-for-profit institution to tear down any buildings within its campus in pursuit of its charitable mission, and that such matters must instead be looked at on a building-by-building basis.

Butzel is currently involved with lawsuits challenging the Atlantic Yards project, claiming that it needed a supplemental environmental impact review; the recently approved 82-story MoMA tower on West 53rd Street, under a theory that the transfer of unused development rights from two nearby landmarked buildings is not in the spirit of the City’s Zoning Resolution; and Landmarks’ unwillingness to calendar a public hearing to consider designating the Church of St. Vincent de Paul on West 23rd Street as an individual landmark.

Anti-establishment. Butzel describes his current caseload as “anti-establishment lawsuits,” attempts to stop projects proposed by major establishments that have significant land use implications. Describing himself as a loner by disposition, Butzel enjoys working as a solo practitioner and finally feels comfortable as a litigator. “I know that most of these are uphill cases and likely to be lost, but I’m happy with what I’m doing,” Butzel said. “I’m 71 years old and I have no intention of retiring. I’m doing more litigation now than I’ve done in my entire life.”   — Matthew Windman