Arguments heard by appeals court in Guilderland-Pyramid lawsuit

— From the EIS on file with the town of Guilderland

An Albany County Supreme Court judge last November ruled in favor of Guilderland residents who were seeking to stop the construction of a Costco Wholesale store and 222-unit development on Rapp Road. This week, the town of Guilderland, Pyramid Management Group, and the plaintiffs’ lawyer were before an appeals court to make their cases for why the decision should be upheld or reversed.

ALBANY COUNTY — Five appeals court judges on Tuesday heard arguments as to why they should either uphold or reverse a lower court’s decision halting the construction of Pyramid’s Rapp Road and Western Avenue projects. 

Guilderland’s supervisor, Peter Barber, arguing for the town, told the judges the lower court had acted more as an advocate.

James Bacon, the attorney for the Westmere residents who brought the suit, said that the crux of the case was that Guilderland’s zoning board had been left out of the process.

“Zoning compliance in this case is the common thread of all the concerns of the public and interested and involved agencies — and that was missing,” he said.

Pyramid’s lawyer, David Paget, argued that the lower-court judge had failed “to effectively and, frankly, honestly capture the context and setting in which this development unfolds.”

 The project is not being proposed on “some isolated island in an archipelago of pastoral and bucolic land,” he said, citing nearby Crossgates Mall, Stuyvesant Plaza, and businesses on Western Avenue. “It is a logical, commonplace, sensible area,” Paget said.

One of the appeals judges asked if Guilderland’s local law didn’t encourage mixed-use residential and office development to prompt walking and biking to which Paget replied the local law was to incentivize development.

Bacon asserted, “You can find no more auto-centric use than a Costco.”

Kevin and Sarah McDonald, along with other Westmere residents Lisa and Thomas Hart, and now-former gas-station owner Jonathan Kaplan in September 2020 filed a lawsuit against both the town and Pyramid Management Group after the Guilderland Planning Board approved the company’s 222-unit apartment development on Rapp Road and a Costco Wholesale store.

Kevin McDonald is running for a seat on the Guilderland Town Board. 

In November 2020, Albany County Supreme Court Judge Peter Lynch ruled in the group’s favor. The Appellate Division is the middle level in the state’s three-tiered court system.


The appeal hearing

On May 25, Barber, on behalf of the town’s planning board; Paget, attorney for the limited-liability corporations named in the suit: Pyramid Management Group, Rapp Road Development, and Crossgates Releaseco; and Bacon, the attorney for the plaintiffs, each had 10 minutes to make their case to the appeals court judges. 

Barber was the first to speak.

“The court below acted more as an advocate and did not apply this court’s precedents regarding how you review, in an Article 78 proceeding, a SEQR decision,” Barber said.

Barber said Lynch disregarded the town board’s decision to create a transit-oriented district.

“And more importantly, rejected the planning board’s reasoned elaboration of each of the grounds for why a negative declaration — or negative SEQR determination was issued.”

Lynch, in his November 2020 decision, wrote the issue he had been  presented with was whether the Guilderland Planning Board had complied with its obligations under the State Environmental Quality Review Act, both procedurally and substantively. “It did not, on both counts,” he 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.

With the slate cleared, the plaintiffs were looking for a redo of the SEQRA review process and the 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 was ‘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 it was “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 wrote. “This was a blatant, material procedural failure which undermined the integrity of the EIS review.”

In its January 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 stated in its January filing. 

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. 

Pyramid stressed 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.


Rapp Road

Barber on Tuesday said Lynch erred when he stated there had been a “seismic failure” on the part of the planning board for failing to address the concerns of the Rapp Road community. 

“That Rapp Road historic community is not mentioned anywhere in the petition,” Barber said with emphasis.

The district is a neighborhood of small homes, many of them hand-built by African Americans who arrived in the pine bush, 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.”

Barber said the appellate court has “made it clear that out of fairness to the parties, it has to be actually ‘controverted’ — meaning that it has to be an issue raised in the Article 78 in order for the Supreme Court to have addressed it.”

But that just wasn’t the case, Barber argued. 

And, Barber said, the community didn’t raise concerns. 

“It was not raised by the Rapp Road historic community because in their own words, not my words, in their own words, they stated we get more help from the town of Guilderland and through this process going on two years that they recognize that this is a gem,” Barber said on Tuesday. 

The Rapp Road historic district is in Albany — not Guilderland, it was said.

“It’s pretty clear that the Rapp Road community has already indicated that they get more response from the town that it gets from the city.

“But again, what was odd about this case,” Barber said, is that “we are trying to protect city residents — we deeply respect the historical community.”

Barber said someone from the town twice met with Beverly Bardequez, a Rapp Road resident and president of the Rapp Road Historical Association, to go over the plans and to “make sure she was aware what’s going on.”

Bacon was asked to address the Rapp Road community and historic district not being named in the petition. 

He admitted, “I represent the Westmere Terrace. Rapp Road is on the other side; they were not my clients.”

Bacon did say one of his experts identified Rapp Road as an issue. 

And Rapp Road “goes to the question of alternatives.”

In the petition, he said, “the fourth cause of action specifically talks about scale and magnitude of alternatives.”

Site 1 affects Westmere Terrace, yes, Bacon said, “but it also affects the Rapp Road [community], the lower court was looking at this holistically…” 

 The planning board didn’t perform a visual analysis, Bacon argued, nor did it look at any different uses or site designs for Site 1. 

“What is the effect of that?” Bacon asked.

“One of the big effects is the visual impact to both communities,” said Bacon, stating that other communities like Rapp Road “were no less impacted by the failure of the lead agency to comply with the zoning law.”



 “Intense development”

Bacon said that, when Pyramid went before the Albany County Planning Board in May 2018, it offered a genuine mixed-use proposal, “residential on the upper floors, commercial on the first floor, all mixed medical offices, governmental offices, a police station, and that sort of thing.”

However, when the company went before the Guilderland Planning Board in December of the same year, it did not present the same proposal. 

“Instead of proposing development that would focus intense development away from the Westmere Terrace they jammed the development into the Westmere Terrace,” Bacon said; a cul-de-sac would be done away with and a home would be demolished so that a “five-story tower” could be built 150 feet from the border of Westmere Terrace. 

When the county planning board reviewed the “five-story tower” proposal in February, March, and April of 2019, it wrote a letter to the town’s planning board stating the project did not “comport with a TOD zone.”

“At the same time, the applicant told of a second major development on site number two,” Costco, but, when the town planning board met in July 2019, there was no mention of Costco, Bacon said. 

Before Bacon spoke, one of the judges had asked Barber to address the “dramatic change” of the proposal and the zoning board not being involved in the approval process. 

Barber was also asked whether having a Costco was consistent with the town’s Local Law Number 4, also known as Guilderland’s 2018 adoption of the Transit-Oriented Development district.

Barber said that, yes, having a Costco was consistent with the town’s Transit-Oriented Development district because Guilderland’s comprehensive plan, “from 20 years ago, envisioned high-density residential, commercial at that very location.”

The Westmere Corridor Study would reiterate what was in the comprehensive plan, Barber said; the area “is where you want to have your most intense commercial development.”

Barber was also asked how 700 parking spaces squares with biking and walkability. 

“There does appear to be a stark difference there,” one of the judges said.

Barber said Local Law Number 4 tried to improve the environment for non-automobile modes of transportation.

“That’s exactly what we did here,” Barber said, stating that the Capital District Transportation Authority (CDTA) is adding a stop in the area; for bikers, there will be a link installed between Western Avenue and Washington Avenue Extension; and there will be traffic-calming measures, reducing the road from four lanes to three lanes in places. 

 “You can find no more auto-centric use than a Costco,” Bacon said; the price club will draw bargain hunters from well beyond the Capital Region, as far as “20, 30, 40, 50 miles out, coming in to get discount goods and, rather than integrating existing street networks, it eliminated the entire Gabriel Terrace neighborhood.”

Bacon was asked if those were vacant homes and he said they were. 

Paget, Pyramid’s lawyer, was also asked about Local Law 4. 

“Am I mistaken that Local Law 4 — I thought the text of it was that it was encouraging mixed-use residential and office development with the design objective to promote bicycle use and walkability. That text is in Local Law 4, am I right about that?” one of the five judges asked. 

Paget responded, “That is part of the text, your honor, but to read that as the transcendent, dominant purpose of Local Law 4 is to fail — respectfully — to recognize the broader purposes that are articulated in Local Law 4.”

He went on to say “the opening sentences” of Local Law 4, “I recall [are] in respect of incentivizing development.”

Paget said Lynch’s decision failed “to effectively and, frankly, honestly capture the context and setting in which this development unfolds.”

“This is 160,000 square feet when one speaks of Costco,” he said, when a 250,000-square-foot building is allowed on the site. 

And the proposed project is adjacent to the 1.7 million-square-foot Crossgates Mall; it’s down the road from Stuyvesant Plaza; and near a major commercial thoroughfare, Western Avenue, that is home to a number of office complexes and businesses, he said. 

 The project is not being proposed on “some isolated island in an archipelago of pastoral and bucolic land,” he said, “it is a logical, commonplace, sensible area.”

The plaintiffs had earlier addressed 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.




Bacon asserted the zoning board was not identified as an interested agency during the coordinated review process. 

“And that was the one agency that had the most to say,” he said. “Zoning compliance in this case is the common thread of all the concerns of the public and interested and involved agencies — and that was missing.” 

Lynch understood zoning compliance was absent, Bacon said, and what happened was the planning board “assumed the mantle of zoning administrator from the beginning of the process until when they issued SEQR findings. And that was usurpation of his ZBA’s authority.”

The planning board, Bacon said, has no authority over zoning compliance. 

“And that is really the crux of this case,” he said.

The lower court’s decision should not be overturned, Bacon said, because Judge Lynch, over the course of nine pages, explained how the SEQR review was undermined by not including the zoning board in the process. 

Paget was asked if the zoning board was left out of the approval process, and if so, had it been consequential or inconsequential.

He said the board was “apprised of the fact that there was going to be the consideration of the three-project element” in August 2019, and were provided with the proper scoping documentation and made the decision not to involve itself in the process. 



Bacon’s last point was Pyramid’s clear-cutting of 5.2 acres of trees during the SEQR process. 

“The whole purpose of SEQR is that you examine the environmental inventory before it’s lost,” he said. “So that the lead agency can take a hard look at what those impacts are, and at the end of the day make a reasoned elaboration about whether the mitigation is sufficient.”

But Pyramid clear-cut the 5.2 acres of trees to speed up construction, which prevented the area from being “roosted,” settled by, an endangered species bat.

The move was “absolutely contrary” to SEQR Black Letter Law 617.3, “that “states that no site disturbance occur until the end of the SEQR process.”




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