GUILDERLAND — Seeking to set the record straight, the attorney for a group of Westmere residents and a former Guilderland gas-station owner whose lawsuit successfully halted Pyramid’s proposed Rapp Road and Western Avenue projects on Monday asked the judge overseeing the appeal to uphold the lower court’s decision in the matter.

Kevin and Sarah McDonald, along with other Westmere residents Lisa and Thomas Hart, and former 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 222-unit apartment development on Rapp Road and proposed Costco Wholesale store.

In November 2020, Albany County Supreme Court Judge Peter Lynch ruled in the group’s favor. 

James Bacon, the group’s attorney, on March 1 was responding to Guilderland and Pyramid’s appeals briefs, filed on Jan. 28 and Jan. 25, respectively, both of which included “misstatements of fact and law which are herein corrected,” Bacon wrote in his filing.

Pyramid’s development plan included 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.

SEQRA

The plaintiffs’ brief begins by pointing to Lynch’s original 77-page decision and its 143 footnotes that “detaile[ed] the Board’s failure to comply with SEQRA.”

Lynch said that the planning board failed both procedurally and substantively to comply with the state’s Environmental Quality Review Act (SEQRA).

 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.

Bacon argues that the planning board failed procedurally because, prior to establishing itself as lead agency for the Rapp Road development project expansion — to include Sites 2 and 3, which needed a special-use permit from the zoning board — the planning board “failed to notify any involved agency”of the expansion. 

“The error was consequential,” the March 1 court papers state, because, by failing to identify the zoning board as an involved agency during a coordinated review process, the planning board “omitted an agency with exclusive jurisdiction to determine Costco’s consistency with the Town’s special use requirements and the  [transit-oriented development district].”

The planning board had the authority to review site plans for each of the three sites, Lynch wrote in his November 2020 decision, but it was the zoning board that had the sole responsibility of issuing a special-use permit for Costco.

“Justice Lynch determined a number of critical facts regarding procedural non-compliance,” the plaintiffs’ March 1 court filing stated.

The planning board knew Costco was slated for Site 2 among three sites, Lynch wrote, requiring a special-use permit — and the planning board knew it didn’t have the jurisdiction to sign off on the use since that authority was the zoning board’s alone. 

“The Planning Board had every opportunity to re-establish lead agency but failed to do so,” Lynch wrote. “This was a blatant, material procedural failure which undermined the integrity of the [Environmental Impact Statement] review.” That made it necessary to set aside the acceptance of the environmental impact statement process and the issuance of a findings statement based upon the EIS. 

The plaintiffs’ March 1 court papers also made the claim that the earliest date the planning board identified the zoning board as an involved agency was August 2019, and not, as the town claimed, July 2019. “Thus, appellants did not give the ZBA a full opportunity to participate in the coordinated SEQRA review of the expanded action,” the filing states.

Additionally, “fatal to [the] appellants’ chronology,” according to the filing, is that the project’s July 2019 environmental assessment form described the “development of Site 1 only, never identifying the ZBA as an involved agency.”

The planning board failed substantively, Bacon argues, because it failed to take into account, “and in some cases did not consider,” the impacts that the projects would have on the character of the surrounding neighborhoods.

Nor did the board adequately consider “reasonable alternatives,” or traffic and visual impacts on the Westmere and historic Rapp Road neighborhoods.

Local neighborhoods

The McDonalds’ home at 29 Westmere Terrace shares a border with Site 1 , and one of the proposed five-story apartment buildings would be built just 230 feet from their home, according to the court filing. 

Kevin McDonald, who has since launched a run for Guilderland Town Board, objected to both the height — 55 feet — and proximity of the building to his residence, the filing states, yet “the Planning Board did not consider any alternative with reduced building height,” and “[n]o viewshed analysis was implemented to confirm that the visual impact of the high-rise apartment buildings will be mitigated to preserve the integrity of the RRHD, and/or the privacy of the Westmere Terrace residents.”

The 28-acre historic Rapp Road neighborhood, Bacon writes, was “settled in the 1930s by African-Americans fleeing Southern violence.”

The neighborhood is now on the National Register of Historic Places.

The construction of Crossgates Mall, the plaintiffs’ court filing states, disrupted the community, as some of the original houses from the historic neighborhood once stood where the mall was built some 40 years ago. 

Bacon then quotes Beverly Bardequez, a Rapp Road resident and president of the Rapp Road Historical Association, who said, “We’ve known that they [Pyramid] would like to purchase all of this [RRHD] property.

“Slowly and strategically developers continue to seek parcels within the community. Developers should not assume they can muscle their way into our community, and disregard and disrespect our presence. 

“The Rapp Road Historic Community is our history, heritage and legacy, left to us by our ancestors. We will continue to honor and protect that legacy.”

Pyramid, the plaintiffs argue in court papers, had more success south of Crossgates, in the Gabriel Terrace neighborhood, where the company scooped up properties and required sellers “to sign non-disclosure agreements.”

After buying the homes — “through straw men,” a frontman who purchases the property for the person or company who is actually footing the bill — Pyramid let them “fall into disrepair,” according to the court filing.

Bacon says that Guilderland completed the Westmere Corridor Study, its “primary land use guide,” in 2016 — “not ‘two decades ago’ as appellants claim.”

In a January 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…”

Westmere Corridor Study

Bacon points a number of times to the Westmere Corridor Study to make the argument as to why Pyramid’s projects should never have been permitted. 

For example, a study-compatible-use was identified for the area that “would become the Costco site: “[T]his particular part of the corridor has critical features that would be necessary for a successful [transit-oriented development] neighborhood. These features include the availability of underutilized or vacant land adjacent to major destinations that attract high volumes of people (such as shopping, entertainment and employment centers) and could support high ridership transit stops.

“The missing elements, mixed-use structures and compact, walkable more ‘urban’ form can be created when land exists to integrate and transition uses into a more connected area with short street blocks, mixed use buildings, public spaces and a strong pedestrian, bicycle, and transit presence.” 

The transit-oriented development zoning district, TOD, which incorporated recommendations from the Westmere Corridor Study, was adopted by Guilderland in 2018, the plaintiffs’ filing states. 

But Pyramid had a site plan in place for Costco, in November 2017, long before Guilderland had a TOD, Bacon argues, “displacing the Gabriel Terrace neighborhood rather than integrating it with mixed-use development.”

Bacon then cites Pyramid’s comments to the Albany County Planning Board in May 2018: “[T]his town-wide initiative helps Crossgates Mall, which is a major employer and tax revenue generator for the county and town. Crossgates is forced to look at doing business in a different way; the TOD will help to create a mixed ‘community.’

“Crossgates has bought property in the surrounding area, and is hoping to build something that is first floor commercial, upper floors residential apartments/condos; perhaps a civic component as well, maybe government offices, a Police station, and medical offices all of which will help support the overall health of Crossgates.”

The plaintiffs’ court papers state, “Pyramid promised the ACPB to use the TOD for mixed-use, neighborhood scaled development, though it already planned to eliminate the Gabriel Terrace neighborhood with a Costco.” 

Pyramid filed plans for only its Rapp Road development project in November 2018. The proposal’s “mass, height and density were not of a neighborhood scale, did not have a civic component, or Police station, nor did it include medical offices as Pyramid represented,” Bacon argues.

Pyramid also did not disclose the Costco.

Bacon then cites The Enterprise’s reporting at the time about Pyramid’s future plans for the “ghost” neighborhood, quoting partner Michael Shanley about the area, “It’s still occupied by some residents; that’s not a point of focus at the moment. We’re all focused on maintaining Crossgates, keeping the hotel going.”

Shanley told The Enterprise at the end of 2016 that Pyramid had no plans to build a hotel. Pyramid announced its plans to build a hotel just three months later, in March 2017

The March 1 filing states that “Shanley said Pyramid has other development ideas for land around the ring road, but he declined to describe them, saying that the company prefers to bring one plan to completion — or wait until ‘it’s received all the approvals’ — before moving on to the next.”

And so, when Pyramid performed what it now claims is “extensive outreach” to residents about its projects, no mention was made to Kevin McDonald of “other plans” to “develop any other site,” the court papers say.

Bacon again points to the apprehensiveness the Albany County Planning Board had with the project.

The county planning board in May 2019 said that the large-scale use of the Rapp Road development violated the purpose of the TOD, and would also negatively impact the Rapp Road Historic District. An environmental impact statement should also be required, the county planning board said.

“Also in May 2019,” Bacon writes in his filing, “Pyramid disclosed a game-changer: [Pyramid] advised the Town that they intended, at some point in the future, to file an application for a Costco retail facility on what was to become Site 2.”

Standard of review

Pyramid claimed that Lynch identified three new areas of concern that were never addressed by the complainants, but were nevertheless cited by the judge in his decision to overturn the planning board. 

Bacon argues, “The claims are untrue as the Court’s comment on avian species was dicta,” an observation made by a judge in a decision that’s not necessary in resolving the case, “Board’s failure to assess visual impacts related to all surrounding neighborhoods and its alternatives analysis was grounded by the scope and informed by” state environmental conservation law judicial precedent. 

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 stated 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.

Bacon argues that Lynch did not substitute his judgment for that of the planning board, rather he spent 38 pages in “methodical review of the facts and law” addressing “project setting and SEQRA milestones, the Positive Declaration, Albany Pine Bush, RRHD, OPRHP, Scoping, DEIS, ‘Additional Comments on the DEIS,’ FEIS, a 6-page findings analysis,  Special Use Permit, and included 3 pages on ‘Zoning and Land Use Law.’”

What Guilderland and Pyramid chose to do instead, Bacon argues, was to attack Lynch: “Appellants’ recurring theme is that the Court ‘far exceeded its circumscribed role,’ ‘desired’ or ‘preferred’ certain alternative designs, ‘prescribe[d] what particular studies should be conducted,’ required ‘an all-encompassing analysis of alternatives,’ ‘second-guessed’ and ‘substituted its judgment’ for the Board’s or that petitioners proffered ‘preferred alternatives…’”

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. 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 argued.

Bacon argued that the town conflated the SEQR lead agency coordinated review process, which takes place before a lead agency is actually established, with the separate process of “post-lead agency circulation of documents.”

The plaintiffs also argue in court papers that the town claimed the planning board to have established lead agency over the project without ever identifying the zoning board as an involved agency in addition to not disclosing the actual scope of the projects to any of the involved agencies, “as proved by the meeting’s video and the July 19, 2019.”

Bacon also takes aim at the town and Pyramid’s attempt to marginalize the importance of the zoning board in the process, claiming that the “appellants repeatedly argue the ZBA’s involvement was superfluous.”

Bacon argues in his March 1 court papers that, unlike the case law cited by Pyramid in its Jan. 25 court filing, the company needed a variance for its project, and: “When the need for a variance eventually became apparent, the Planning Board [in the case law cited by Pyramid] in the fully considered the impact of the height of the water tower … [reviewing] … simulated digital photographs of the project …. preserving the existing vegetation, painting the tank a neutral color to minimize contrast and building the tower into the hillside … [and] … alternatives to a water tower were considered.”

Alternatives 

Lynch in his November 2020 decision 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,” nor had any alternatives been considered.

Pyramid claimed the planning 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.

Additionally, the company asserted the Costco also wasn’t a “maximum-build scenario,” stating that retail facilities of up to 250,000 square feet are permitted in the transit-oriented development district. The company was proposing a 160,000 square-foot price club, approximately 36-percent smaller than the maximum allowed.

The plaintiffs’ March 1 filing says that, “The statute grants authority to the agency to consider alternatives rather than an applicant unilaterally dictating a singular project design … However, appellants provided no reduced scale analysis for comparative assessment for either Site 1 or Site 2 development.”

Addressing specifically the Site 1 alternatives analysis, Bacon writes, “Tellingly,” the town and Pyramid “completely avoid discussion of [the transit-oriented development district] as does the Board’s findings, though it does mention the TOD’s ‘pedestrian and bicycle facilities, ‘circulation and design features, and a site berm.”

Additionally, Pyramid did not offer a reduced-scale option or a transition area that would mitigate impacts on Westmere residents. 

Bacon argued had Pyramid “offered any reduced-scale design,” then Lynch could have given the company “latitude regarding” the “comparative assessment” portion of SEQR analysis. “However, with none provided, no deference is afforded the Board for failing to consider ‘reasonable alternatives to the action’ as required by the scope,” the court papers state.

“Thus, Justice Lynch made no error of fact in holding: ‘the Board utterly failed to require a reduced building scale alternative to conduct a comparative analysis to mitigate impact,’ regarding Site 1,” the plaintiffs argue.

Bacon also argued the town and Pyramid included a new claim, “improperly raised for the first time,” in their appeals that the planning board had determined the 222-unit Rapp Road development would not have a significant adverse environmental impact, which negated the need for an alternatives analysis.

“The claim is wholly false,” the March 1 court papers state, “as readily proved by Record,” the voluminous court filing documenting the project, which runs over 8,400 pages. Bacon points to problems with the July 2019 environmental assessment form as proof: It had no signatures; was undated; and parts of it were never discussed before being adopted by the planning board.

Bacon also argues that the town and Pyramid wrongly claimed his clients never raised concerns about the Site-1 reduced-scale alternatives, pointing to four remarks — two each by Thomas Hart and Kevin McDonald — and the five-digit code that refers to a paper record in the court filing.

On Site 2, the Costco site, Bacon argues “like the Court’s Site 1 analysis, the Court committed no error of fact in finding appellants refused to consider any other alternative for Site 2 except the Costco design Pyramid prepared November 1, 2017 (and an unfeasible office use).”

The plaintiffs then address Pyramid’s contention that “the Costco Project is not a maximum-build scenario,” by pointing out that, on a 14.86 acre site, 12.54 acres would be “impervious coverage,” so, in addition to 160,000 square-foot price club, which would be approximately 36-percent smaller than the maximum allowed, there would be an 18-pump gas station, there would also be 700 parking spots which total 546,252 square feet, or 12.54 acres, or 84-percent site coverage.

“The Board failed to take a ‘hard look’ at community character impacts,” Bacon argued.

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 stated.

Rapp Road residents, according to the town’s appeal 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.’”

Bacon argues that this defense is indefensible. 

The town’s court filing, according to Bacon, improperly includes statements from a nameless “leader of the Rapp Road community.” Additionally, the statements were allegedly made in September 2020, after the planning board adopted its SEQR, and are not included in the Record, and are “an attempt to bolster appellants’ review of [Rapp Road Historic District] impacts.”