Guilderland‌ ‌and‌ ‌Pyramid‌ ‌seek to reverse ruling that halted company’s projects

The‌ ‌Enterprise‌ ‌—‌ ‌Michael Koff ‌

Trees lie where they were cut last fall in the uninhabited neighborhood Pyramid owns where it wants to build a Costco. 

GUILDERLAND‌ ‌—‌ ‌Claiming that a lower court judge overstepped the bounds of “established” judicial review, the town of Guilderland and Pyramid, owner of Crossgates Mall, have asked an appeals court to reverse the lawsuit that stopped both the construction of a 222-unit apartment development on Rapp Road and a proposed Costco Wholesale store.

Kevin and Sarah McDonald, along with other Westmere residents Lisa and Thomas Hart, and gas-station owner Jonathan Kaplan in September of last year filed a lawsuit against both the town of Guilderland and Pyramid Management Group after the town’s planning board approved the company’s Rapp Road and Western Avenue projects.

In November 2020, Albany County Supreme Court Judge Peter Lynch ruled in the group’s favor. Pyramid filed its appeal with the Third Appellate Division on Dec. 11, 2020; Guilderland filed three days later, on Dec. 14. The Appellate Division is the middle level in the state’s three-tiered court system.

The issue at hand, Lynch wrote in his Nov. 20 decision, was whether the Guilderland Planning Board complied with its obligations under the State Environmental Quality Review Act — procedurally and substantively. “It did not, on both counts,” Lynch concluded. 

In his decision, Lynch wrote that the planning board had violated the procedure set out by the act as well as the “hard look” test, a three-part test that requires an agency reviewing an action to: identify the areas of environmental concern; analyze the areas of concern to determine if the action may have a significant adverse impact; and support its determination with evidence.

Since the board violated the SEQRA procedure and the “hard look” test, Lynch declared “null and void” the board’s acceptance of: both the draft and final environmental impact statements; the August issuance of a findings statement justifying its approval of the project; and the October granting of site-plan approval for Pyramid’s 222-unit apartment and townhome development.

In its Jan. 25 appeal, Pyramid claimed that Lynch’s decision was not made based on arguments presented by either the plaintiff or the defendant. Rather, Pyramid argued, Lynch chose to “identify specific issues” that had not been in dispute, and handed down a decision for a case that neither side had actually presented. 

Lynch in effect took it upon himself to amend the original petition, Pyramid argued in court papers, and then didn’t give the town or company time to respond, violating the state’s prohibition against “litigation by surprise.”

The Third Appellate Division, Pyramid claimed, “has repeatedly recognized” that a lead agency’s “rational and substantiated” SEQR finding is to be complied with. But Lynch did not defer to the planning board’s judgement, Pyramid states in its filing; he chose instead to ignore the board’s “nearly two-year hard look” and assumed the role of lead agency and “substituted [his] judgment” for that of the planning board’s.

In an affidavit, Guilderland Supervisor Peter Barber stated, “At its core, the trial court’s decision discarded the Town’s 20-year effort, as shown in its Comprehensive Plan, Westmere Corridor Study, and Transit Oriented District, to redevelop the former pig farm and vacant residential subdivision with new large scale commercial and multi-family development, because of their placement on an underutilized four-lane road with direct access to the Northway, and walking distance, for residents, retail workers, and shoppers, to CDTA’s busiest area transit station and terminus of its planned rapid bus line to downtown Albany. 

“The trial court improperly annulled the Planning Board's two­ year ‘hard look’ by claiming that the Board should have blindly ignored this planning process and Town Zoning Code by finding that the proposed action was incompatible with its surroundings.”

Barber helped town attorney James Melita write Guilderland’s appeal.  

He told The Enterprise he had taught “SEQR classes in the past,” and that Melita “has had very little bit little experience with [SEQR].” Barber’s affidavit notes that he chaired Guilderland’s zoning board for 16 years

In October of last year, the town let Pyramid take the lead in responding to the plaintiffs’ original complaint, addressing only a specific records-request denial made by the plaintiffs’ lawyer, James Bacon.

Barber said that Guilderland let Pyramid take the lead then because the company had been “defending, basically, [the] application process.”

The difference between now and October 2020, Barber said, is: “We have a decision from [a] state Supreme Court judge that we think was wrong.” And, with the town itself as well as its planning and zoning boards being sued, he said, “We want to provide the best defense that we can.”


Pyramid’s proposal 

Pyramid’s plan included developing three sites:

— Site 1, a 19-acre plot at Rapp and Gipp roads for 222 apartments and townhouses, with the possibility for another 90 apartments to be built on the site.

Specifically, Pyramid was proposing three two-story townhouse-style buildings, with 10 units in each building, totaling 30 units, on the west side of the property. On either side of the entrance to the property, the developer was proposing two five-story apartment buildings, one with 94 units and the other with 98 units. The project additionally included about 3,900 square feet of commercial space. The company was also proposing a total of 362 parking spots: 84 indoor spaces and 278 outdoor spots;

— Site 2, sixteen acres at Western Avenue and Crossgates Mall Road for a Costco, a membership-only, 160,000-square-foot warehouse-price club, that would offer gasoline service and 700 parking spots; and

— Site 3: Eleven acres between the Costco site and Pyramid’s hotel on Western Avenue that could be used for retail, offices, or apartments. There are no current development plans for Site 3 — however, Pyramid did present a zoning-compliant conceptual plan that could include 115,000 square feet of retail space, 50,000 square feet of office space, and 48 apartments.

Bacon previously told The Enterprise, “The heart of an environmental impact study is a reasonable analysis of alternatives — that’s at the heart.”

He then pointed to examples of his argument penned by Lynch:  

— “In context of the proposed density, the project sponsor did not identify any alternative to the Site 1 use/design. To the contrary, the project sponsor affirmatively represented that there were no alternatives. This claim is false,” Lynch wrote. 

Pyramid argued in its Jan. 25 court papers that the planning board’s Site 1 alternate-review had to be viewed in context: The board had already determined that the Rapp Road apartment-and-townhome development would not have a significant adverse impact on the environment, which negated the board from having to consider any alternative but the “no-action alternative.”

However, Pyramid claimed, the board did consider some Site 1 alternatives, like moving the entire development closer to Macy’s in nearby Crossgates Mall; different site layouts in order to protect the butterfly-management area; and nine different ways of routing traffic.

Lynch also wrote that the apartments and townhomes and proposed Costco had represented a “maximum build scenario,” and wrote that nowhere in the record was there any evidence of a scaled-down alternative, which would have “enable[d] a comparative analysis to mitigate impact”

The Costco was not a “maximum-build scenario,” Pyramid countered, stating that retail facilities of up to 250,000 square feet are permitted in the Transit-Oriented Development District (TOD). The company was proposing a 160,000 square-foot price club, approximately 36-percent smaller than the maximum allowed.


Lead agency and “hard look”

Bacon previously told The Enterprise that the court, in its decision, was mindful of its role in looking at the project: The role of the court was not to substitute its own judgement for that of the planning board, Bacon said; the role of the court was to determine if the lead agency, operating under the “hard look” standard, followed the correct procedure. 

It did not, in Lynch’s opinion. 

One thing the plaintiffs were looking for in asking for a redo of the SEQRA review process was re-establishing a lead agency in order “to obtain an impartial examination of the project’s environmental impacts ….”

Lynch, citing case law, wrote that the lead agency is “principally responsible” for determining whether or not a project would have a significant impact on the environment. 

The planning board had the authority to review site plans for each of the three sites, Lynch wrote, but it was the zoning board that had the sole responsibility of issuing a special-use permit for Costco. So, Lynch wrote, “It is arguable that either entity is ‘principally responsible’ to conduct the SEQRA review for the project. As such, the lead agency determination was required to undergo the coordinated review process.”

Lynch wrote that it’s “undisputed” the planning board had a “procedural failure” with its SEQRA review process because it “failed to coordinate Lead Agency determination with the Zoning Board of Appeals.” Lynch went so far as to say, “The Zoning Board was simply left out of the process.”

“The Planning Board had every opportunity to re-establish lead agency but failed to do so,” Lynch writes. “This was a blatant, material procedural failure which undermined the integrity of the EIS review.”

In its Jan. 25 court filing, Pyramid argued that the planning board did not violate the coordinated review process laid out by SEQR, because the zoning board had been established as an involved agency, and had been notified of that fact after Costco and Site 3 were added to the planning board’s scope of review, a move that triggered an in-depth environmental review. 

When it adopted the positive SEQR declaration that triggered the in-depth review, the planning board identified the zoning board as an involved agency, Pyramid stated. The zoning board “was fully apprised at the start of and throughout the EIS process,” Pyramid claimed, and had a free hand to participate in the review process. 

The positive SEQR declaration form that triggered the in-depth review stated that the scoping process would be undertaken, a draft scope would be prepared, and that draft document would be sent around “to all involved and interested agencies and anyone requesting a copy.”

Copies of the positive SEQR declaration were sent to nine potential involved and interested agencies, the zoning board among them, which also never objected to the planning board declaring itself lead agency, Pyramid noted.

Pyramid claimed that Lynch evaluated the SEQR record, “de novo,” as if  the planning board had never adopted a negative declaration, and determined that a “closer look” was needed on already-settled issues. Lynch also identified three new areas of concern that were never addressed by the complainants, Pyramid argued, but were nevertheless cited by the judge in his decision to overturn the planning board. 

According to Pyramid, Lynch claimed the planning board had failed to:

—  “Take a hard look” at the impacts the project would have on birds in the Pine Bush (later in its court filing, Pyramid claims that the birds were taken into account when the planning board undertook its “hard look” test); 

— “Take a hard look” at the visual impact a multiple five-story apartment buildings would have on the Rapp Road Historic District; and 

— The board failed to consider “shorter alternatives” to the apartment-and-townhome development on Rapp Road and a “a residential alternative” for the Costco site.

Pyramid stresses that the planning board took a “hard look” at the visual impacts associated with the Rapp Road apartment-and-townhome development. The appeal argues that Pyramid, to eliminate visual impacts, had to incorporate features the planning board had found in its study, features beyond the TOD minimum.

Pyramid had “engaged in extensive outreach with residents in nearby neighborhoods during the early stages” of the Rapp Road development review process, the company claimed. 

“Although” the company “also consulted with residents of the [Rapp Road Historic District], at no point during the Planning Board’s SEQRA review did any resident of the RRHD raise any concerns regarding visual impacts,” Pyramid claimed. “Nor did the Historical Association or the SHPO,” the appeal said of the State Historic Preservation Office.

Regardless, the planning board still “analyzed visual impacts to the” Rapp Road Historic District when it undertook SEQR, the appeal claims.


Rapp Road Historic District

 The district is a neighborhood of small homes, many of them hand-built by African Americans who arrived in the pinebush, largely from Mississippi, during the Great Migration.

Throughout his November 2020 decision, Lynch pointed to omissions that the planning board failed to consider when making its determination. The “historical and cultural significance” of the Rapp Road Historic District, Lynch wrote, “cannot be overstated, and, in turn, cannot be ignored under the hard look test.”

With the closest homes just a few hundred feet away from proposed five-story buildings, the planning board failed to consider “any alternative with reduced building height.”

But Pyramid counters that Lynch pointed to omissions that were actually omissions in the residents’ suit. “Strikingly,” Pyramid asserts in its Jan. 25 court filing, the Rapp Road Historic District “was not mentioned a single time in the” original complaint.

Pyramid also states that there are nearly 1,000 feet between the southernmost occupied home in the historic district and the northernmost five-story building at the site.

Whenever Pyramid makes an assertion like Lynch being way off in his measurement of the distance between the historic Rapp Road homes and proposed apartment building, or claims that the zoning board had actually been notified about its agency status with the project, the assertion is accompanied by a five-digit code that refers to a paper record in the company’s voluminous court filing, which runs over 8,400 pages. 

Lynch, the town asserted in its Jan. 28 court filing, claimed that the planning board failed to consider the impact the project would have on the historic Rapp Road neighborhood, committing a “seismic failure” in the process.

“The record soundly defeats this false statement,” the town states.

Rapp Road residents, according to the town’s filing, “confirmed that ‘we get more help from the Town of Guilderland from what I’ve seen going through this process going on two years, that it recognizes that this a gem’ and the ‘amount of communication is very open with Pyramid and the Town of Guilderland.’”

The town argued that the planning board “went well-beyond” what is required of a “hard look,” for example, receiving expert opinions and comments from the state’s conservation and transportation departments, and says the proof is in the pudding. 

Guilderland claims that a comparison of the project from when SEQR first began to when the board adopted a Findings Statement two years later shows that the planning board’s “review was proper and thorough.” The town lists what it considers 10 substansial measures to illustrate its point, with four traffic-related measures and a requirement that Pyramid hand over 8.4 acres of land to Albany Pine Bush Commission, among them.



Justice Lynch wrote that the draft environmental impact statement “also fails to mention, let alone account, for the fact that Costco will not improve the environment for non-automobile-oriented modes of transportation, will not reduce the number of required parking spaces, and will not focus intense development away from existing residential neighborhoods, all in contravention of TOD.”

Pyramid countered in its court papers the plaintiffs “conceded” that Costco was “fully consistent” with the Transit-Oriented Development District, and that the plaintiffs objected to the project on economic grounds. “The Court nevertheless faulted the Planning Board for relying on the fact that the Costco Project was permitted under local zoning,” the company states.

Pyramid argued that it was only as the planning board was nearing completion of its environmental review for the proposed 222 apartments and townhouses on Rapp Road, that the company first made the town aware of its intention to apply to the zoning board so that it could develop the second of its three adjacent sites, a Costco.

With this new information, Pyramid states in its filing, the planning board decided to postpone taking any action on the apartment-and-townhome proposal and instead, “on its own initiative, expanded the scope of the SEQRA action to include the [Rapp Road Development site], the proposed retail site on Site 2, and potential future development on Site 3, and declared itself SEQRA lead agency for the redefined action.”

James Soos, the director of development for Pyramid, stated in an affidavit, “Put simply, if resolution of this appeal is delayed, it is likely that Costco will abandon its proposed development on Site 2 and restart its search for other development sites in the region to construct its facility. Should that occur, the consequences would be devastating for Pyramid and the Town.”

Then Pyramid argues in its court filing, “Costco Project will create numerous construction and retail jobs, inspire local business growth, and significantly increase tax revenues to the Town, Albany County, and Guilderland School District.”

Pyramid is currently suing the town in an attempt to knock $139.2 million off of Crossgates Mall’s $282.5 million assessment. In tax year 2019, the seven parcels of land that collectively make up Crossgates Mall paid entities within Guilderland — the town itself; Guilderland schools; and the public library — about $7 million in property taxes. If Crossgates were to win its lawsuit, the taxes it pays could be cut by about half

Barber, in his affidavit, citing a paid-for-by-Pyramid economic analysis, asserted that Costco would “generate significant annual property and school tax ($141,707; however, $16,160 would be the county’s money) and sales tax revenues ($2 million; of which $157,516 would be Guilderland’s take) … at a time when State, local, and school budgets are under extreme pressures.”

Barber goes on to state that Costco “alone is projected to generate 142 jobs, over $3.9 million in earnings, and over $114.4 million in sales in Albany County, annually, and 187 jobs, over $5.1 million in earnings, and over $133.3 million in sales in the Town,” every year, “in terms of the direct, indirect, and total impact on employment and wages,” according to an economic impact analysis

But economists of all stripes — left, right, libertarian, in the academy, and at think tanks — caution readers of economic impact analyses to take their findings with a grain of salt, in part because, “most economic impact studies are commissioned to legitimize a political position.”

More Guilderland News

  • The parties are scheduled to appear at the Foley Federal Courthouse in Albany on Oct. 7, at 10 a.m., when the state will have to make the case as to why Judge Lawrence Kahn should not grant the temporary restraining order until he can make a determination on the plaintiffs’ motion for the preliminary injunction.

  • Guilderland school district residents passed a $21.8 million capital project on Thursday with nearly 64 percent voting in favor.

    “After what our kids have been through, this is awesome,” said Superintendent Marie Wiles on Thursday night just after the results were in.

  • The town of Guilderland is opposing a request from Crossgates that the mall’s 2020 and 2021 tax certiorari cases be consolidated into one lawsuit in part because the circumstances surrounding the valuations “were completely different.” The 2021 case would be based on a July 2020 valuation — when malls were closed for three of the year’s six months — compared to a 2020 tax hearing, which would be based on numbers from July 2019.

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