Save the Pine Bush loses appeal to Guilderland, Pyramid

Enterprise file photo — Michael Koff

Trees were felled in a ghost neighborhood bought up by Pyramid to make way for a Western Avenue Costco Wholesale store. 

GUILDERLAND — For the second time in less than a year, an appeals court has ruled in favor of the town of Guilderland and Pyramid Management Group in lawsuits filed over the company’s proposed Rapp Road and Western Avenue projects.

Thursday’s ruling from the state Supreme Court’s Third Appellate Division upheld a lower court’s decision on the matter and paves the way for construction to begin on Pyramid’s proposed 222-unit Rapp Road residential development and the approval process to get underway for the Western Avenue Costco Wholesale store. 

The same appeals court in July 2021 overturned a suit brought by a group of Westmere residents seeking to halt the projects. 

Save the Pine Bush filed its suit in November 2020 based on the Guilderland Planning Board’s adoption of a findings statement for Pyramid’s proposed projects and the site-plan approval given to the company’s apartment and townhome development — an approval that was given based on the findings statement. 

Save the Pine Bush is a not-for-profit grassroots group that has been fighting to preserve the globally rare pine barrens since 1978.

Appeal arguments were heard by the court in March

In the suit, Save the Pine Bush claimed the planning board relied on an environmental impact statement that contained factual errors and conclusions not supported by empirical evidence, which is a violation of the State Environmental Quality Review Act, while also committing “procedural and jurisdictional errors” in adopting the findings statement and approving the site plan.

The appeals court found Save the Pine Bush’s procedural challenges unpersuasive. 

“First, the Planning Board determined that a public hearing on the application for site plan approval was warranted, and [Save the Pine Bush] argues that technical problems in broadcasting that hearing, which was held on two evenings in October 2020, led to a violation of the Open Meetings Law,” the court wrote in its decision. 

“Specifically, although the Planning Board is ordinarily ‘required to make reasonable efforts to ensure that meetings are held in an appropriate facility that can adequately accommodate members of the public who wish to attend such meetings,’ that requirement was lifted during the relevant period, and the Planning Board was only required to ensure that ‘the public had the ability to view or listen to such proceeding and that such meetings were recorded and later transcribed.’”

The hearing took place during  a period when emergency measures were in place because of the coronavirus pandemic.

The court stated, “The Planning Board accordingly conducted the hearing remotely and ensured that the public could see it live online and on two public access television channels. As [Save the Pine Bush] notes, technical problems prevented the first 20 minutes of the hearing's second evening from being live-streamed online. The technical issues did not affect the airing of the hearing on television, however, and the full hearing was recorded and later placed online for viewing.”

On environmental matters, the appeals court similarly disagreed with Save the Pine Bush’s arguments. 

“It is, in sum, apparent that the Planning Board took the requisite hard look at the potential environmental impacts of concern to [Save the Pine Bush] and offered thorough explanations for its determination,” the court wrote. “Although [Save the Pine Bush] continues to argue that the studies upon which the Planning Board based its findings were incomplete and inaccurate, we cannot conclude that its decision to rely upon them ‘was irrational, nor may we substitute our judgment as to the accuracy of the data presented.’”


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