Protester sits on blade to try to stop tree-cutting for Costco

The Enterprise — Michael Koff

Cut trees are left on the ground on Gabriel Terrace, which may mean, legally, that there has been no “physical alteration” of the landscape.

GUILDERLAND — On Thursday afternoon, Steven Wickham, as an act of civil disobedience, sat on the blade of a large piece of equipment that workers paid by Pyramid were using to fell trees, clearing the way to build a Costco near Crossgates Mall.

Wickham, who chairs the steering committee for Guilderland Coalition for Responsible Growth and is also a volunteer with Save the Pine Bush, believes the removal of trees was illegal since the project has not yet gone through the State Environmental Quality Review process.

A hearing, scheduled for March 25, was cancelled because of the coronavirus pandemic. The town is currently accepting responses on Pyramid’s draft environmental impact statement, and has now extended the date for public comment to May 2, according to Guilderland Supervisor Peter Barber.

The town required Pyramid to submit the environmental impact statement, intended to outline the scope of all, or nearly all, potential future development in the area around Crossgates Mall. The draft, submitted to the Guilderland Planning Board on Feb. 12, looks at three sites within the Transit-Oriented Development zone: a proposed apartment complex, a site for Costco, and a third site where commercial and residential buildings are anticipated. 

Tree-cutting began early Thursday morning, according to one elderly resident who has remained in the neighborhood while Pyramid, over two decades, has bought most of the other houses in what is now a ghost neighborhood.

At 10:17 a.m. on Thursday, the town of Guilderland posted on its website a notice that tree-cutting was to start that day, March 26, to comply with regulations from the United States Fish and Wildlife Service and from the state’s Department of Environmental Conservation to protect the northern long-eared bat.

The notice said that stumps would remain in place and there would be no ground disturbance.

Pyramid plans to build a Costco across Crossgates Mall Road from Capital City Diner, on Route 20. The project would include taking out several roads and much of the ghost neighborhood, including Lawton Terrace, Rielton Court, and Tiernan Court. Pyramid has applied to build a retail center that would be 158,000 square feet on 16.5 acres and would operate as a Costco big-box warehouse club with six fuel islands.

Wickham believes that a Costco does not belong in a transit-oriented zone since, he says, most Costco shoppers don’t walk or take public transportation but, rather, drive to the discount retail store. Also he believes that review of Pyramid’s plans should wait until the pandemic subsides as residents now are concerned with survival.




Wickham’s protest

Wickham told The Enterprise he learned of the tree-cutting on Thursday afternoon “when someone who supports our group accidentally stumbled on this page the town posted Thursday morning.”

Wickham said he drove to the site, thinking it wouldn’t be true. When he arrived at about 2 p.m., he said, “They had already clearcut the main wooded lot across from the diner.”

He parked his car on Lawton and followed the noise. “I saw a gigantic bulldozer with a big arm that could grab a tree and cut the bottom,” he said. “They told me I had to leave. I sat down on the blade.”

Wickham, who is 52, said his protest was a spontaneous act.

“There were two guys — one with a chainsaw and one running the big machine,” he recalled. “They said they would call the police. I encouraged them to do so.”

Wickham made a video of some of the exchanges. At one point, a worker tells him, “This isn’t safe ...You’re putting all our lives in jeopardy.”

When a foreman arrived on the scene, Wickham “got up off the blade to talk to him, which allowed them to start the machine again,” he said. “I just walked with them, filming on my phone.”

He said he tried to call both the town’s supervisor and the town’s planner as well as DEC officers.

“The guy with the chainsaw was yelling at me to leave … The guy with the machine was dropping trees right in front of me so I could not follow further,” Wickham said. “The vines on the trees got entangled and they had to stop. That gave me an opportunity to rest against the treads.”

At about 2:30 p.m., Wickham estimated, two Guilderland Police officers arrived in a patrol car. “The police pleaded with me to leave without arrest; they said it would be beneficial to me and the tree-cutting would continue anyway … I verbally resisted and encouraged them to call Peter Barber.”

Wickham was able to reach Councilwoman Laurel Bohl, who had helped to start the grassroots coalition before she left to run for the town board.

Wickham’s video records two police officers who are calm and respectful. Their dialogue hinges on whether the workers are allowed to cut down trees. Wickham tells the officers that the project isn’t approved, so Pyramid is jumping the gun. The officers tell Wickham he is trespassing but they don’t want to arrest him.

“What’s normal procedure for something like this?” an officer asks Wickham.

“This is fairly new to me too, but we’re in a state environmental review process and the planning board hasn’t yet decided whether the impact statement is correct or complete,” Wickham responds in the video.

“If we arrest you for trespassing, and you commit a crime on Pyramid property again, it would be a felony,” says an officer.

Wickham is handcuffed and taken to the patrol car.

Bohl then arrived on the scene. “Laurel encouraged me to get out of the patrol car and fight another day,” Wickham recalled. “They took off the cuffs.”

The workers then closed off Lawton, “saying it was too dangerous for pedestrians,” said Wickham.

Wickham and a small group of protesters — he estimated about half were from the coalition and half from Save the Pine Bush — stayed on Western Avenue to bear witness, he said. Wickham said he was eventually able to reach an aid in Assemblywoman Patricia Fahy’s office who said she would contact Barber.

By the time the Pyramid workers left, Wickham said, most of the property was cleared of trees.  “They were trying to do as much as they could as fast as they could,” he said.

 “It was indiscriminate ... They were removing everything,” said Wickham, concluding his narrative: “I did not see any other option since I was alone with a cellphone camera.”


Town’s view

Curtis Cox, deputy chief of the Guilderland Police, said the trespassing charge would have been valid, had it been made. “If you own property and you or a representative tells you to leave, once someone refuses, it becomes trespassing.”

Cox also said it is out of the jurisdiction of the Guilderland Police to know where in the planning process Pyrmaid’s Costco project is and therefore whether the tree-cutting was against the law.

Supervisor Barber said, “I don’t disagree with people having passionate views. But they have to exercise those views within the law.”

He went on, referencing the coronavirus pandemic, “It’s somewhat disappointing an intelligent person would put our police officers in a difficult situation. They don’t know what their exposure will be. They respond to every call.”

Asked if it was illegal for Pyramid to be cutting trees before its project had been reviewed or approved, Barber said, “I’m not saying he’s right or wrong. I don’t know.”

According to DEC Codes, Rules, and Regulations, “A project sponsor may not commence any physical alteration related to an action until the provisions of SEQR have been complied with.”

 Jacqueline M. Coons, Guilderland’s chief building and zoning inspector, contacted the DEC, Barber said, and was told tree-cutting is not a physical alteration of the land and therefore not illegal.

“They’re leaving logs on site,” said Barber. “I’m not sure what constitutes ‘physical alteration.’  Apparently, it’s a question that comes up relatively often.”

Earlier this week, in Altamont, a row of century-old pine trees was removed to make way for an expansion of the Stewart’s Shop, and Chuck Marshall of Stewart’s cited the federal regulation to protect long-eared bats. The Stewart’s project in Altamont had been through the SEQR process although, at the time of the tree-cutting on March 24, not yet approved for needed variances.

And a year ago, Guilderland town officials gave a developer permission to take down trees to build a road, between Hurst Road and Route 146, before getting final plat approval for the proposed subdivision — again to meet the regulations set up to protect the northern long-eared bat.

For Thursday’s Pyramid tree-cutting, Barber cited the federal and state rules for protecting the northern long-eared bats. “You want these bats, when they leave their caves, to go to safe trees,” he said.

Michael Clark, the wildlife manager for the DEC’s Region 4, told The Enterprise that the northern long-eared bat is found throughout all of upstate New York and is “opportunistic” in the “diverse array of trees” it chooses to live in. “It could be anywhere,” he said.

“The idea behind the restriction,” Clark explained, is that, between Nov. 1 and March 31, the bats are in caves, hibernating. “After that, they could be in the trees,” he said, so tree-clearing during those months, from April 1 to Oct. 31, are prohibited.

Like most hibernating bats, the long-eared northern bat population has been greatly reduced by white-nose syndrome; some populations have been reduced over 90 percent, Clark said. This led the northern long-eared bat to be listed as threatened, both federally and by New York State, Clark said.

Coons issued a cease-and-desist order on Thursday, “against any further tree cutting at the three sites subject to the pending DEIS for the Costco/Rapp Road Apartments pending an opportunity to review this matter with the Town of Guilderland’s Attorney and the NYS Department of Environmental Conservation.”

“We will await DEC’s determination,” said Barber. “I don’t want to be the arbiter.”

He also said, “We’re doing the best we can under the circumstances. When you have a regulation open to interpretation,” Barber noted, the normal course would be for the town to consult with the DEC. “The DEC like the rest of the world is operating under limits,” he said.

A spokeswoman for the DEC, Regina Willis, was not able to respond to Enterprise questions before press time.

The tree-cutting notice was posted on the town’s website, Barber said, after the town’s planner, Kenneth Kovalchik, received an arborists’ report from B. Laing Associates.

“Vegetation on-site is consistent with a secondary succession woodland as a result of new growth after decades of use as a residential development,” the report states.

The report says the site has predominantly invasive species, said Barber, noting those are species the Pine Bush Preserve is “engaging in its own eradication.”

He distinguished between the Pine Bush Preserve Commission and the citizens’ group, Save the Pine Bush, which is protesting Pyramid’s plans. “The town is obligated to follow the entity with legal jurisdiction,” Barber said.

The report from B. Laing Associates notes there are no tree-cutting restrictions to protect the northern long-eared bat unless a project is located within five miles of a known hibernaculum or 1.5 miles of a known summer occurrence of the species. The closest winter hibernacula to the Pyramid site, however, is seven miles to the west of the site, the report says.

The report goes on, “No confirmed occurrences of northern long-eared bats in summer roosting trees have been observed in the Town of Guilderland, per the NYSDEC. In summary, the proposed tree clearing of Site 2 would not have a significant impact on northern long-eared.”

Wendy Dwyer, of Guilderland Center, writes in a letter to the Enterprise editor this week that Barber had responded to her request to table the development by Pyramid, saying “We’re all mindful of the impact of coronavirus on people’s lives. That’s my primary focus. We’re also aware of the Governor’s Executive Orders which were intended to keep local governments functioning and help with rebuilding the economy. We’re trying to meet both goals and others.”

Barber responded to Dwyer’s assertion, through The Enterprise, on the town’s process with Pyramid, “This is going through a deliberate process. We are following the letter of the law.” He noted the public comment period on Pyramid’s draft environmental impact statement has been extended to May 2.

In March, at a State of the Town event at Crossgates Mall, Barber had said that Costco and the Rapp Road Apartments would be coming to Guilderland, and that he has heard residents are, 20 to 1, in favor of Pyramid’s plans.

Pyramid could not be reached for comment.

Barber also noted that the town is going beyond the governor’s requirement to have public meetings contemporaneously broadcast by also setting up a system where members of the public will be able to phone into meetings to make their views known.

“It’s not the same as in person but it’s as close as we can get,” he said.

He anticipates a public hearing will be held in late April.

Asked if the Pyramid project could be put on pause, much as the governor has put the state on pause through the pandemic, Barber said, “Our primary concern is public health. We do have to recognize this health crisis is going to have an economic impact, no doubt.

“We’re trying to do what we can to keep things going,” he said, noting this did not apply to just the Pyramid project but to other projects such as, for example, individuals who may want to put in swimming pools.

Barber concluded with a rhetorical question, “Are we going to put life on hold?”

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