Neighbors sue to stop Costco, Pyramid says it won’t build without tax breaks

The Enterprise — Michael Koff

“Pyramid is not a public concern; it is a private corporation,” says Robyn Gray, stating that the company should not be able to take public roads by eminent domain. Gray chairs the Guilderland Coalition for Responsible Growth; she spoke at a press conference prior to the May 31 Guilderland Industrial Development Agency meeting. 

GUILDERLAND — Dozens were heard last Wednesday, May 31, but no decisions were made by the town’s industrial development agency on Pyramid’s tax break and condemnation requests for the planned Costco Wholesale on Western Avenue. 

Pyramid said it won’t build Costco if the IDA doesn’t meet its requests.

On Monday, June 5, paperwork was filed in Albany County Supreme Court to stop the project from moving forward.

The petitioners are 1667 Western Ave., LLC, which is a Stewart’s Shop selling Mobil gasoline in front of Crossgates, and Thomas and Lisa Hart, Westmere residents who were part of an earlier group who tried, ultimately unsuccessfully, to stop three Pyramid projects, including Costco. Lisa Hart is currently a member of the committee updating Guilderland’s comprehensive land-use plan.

The paperwork, 44 pages long, was filed by James Bacon, the same lawyer who represented the first group that won at the Supreme Court level, the bottom of New York’s three-tiered court system, but was overturned at the Appellate level.

Pyramid, through its local limited-liability company, Crossgates Releaseco, is planning to build a 160,000-square-foot Costco store on 16 acres at the corner of Western Avenue and Crossgates Mall Road. The site would also include an 18-pump gas station, enough parking for 770 vehicles, and eight electric-vehicle charging stations.

There are currently 14 non-operational buildings on the site, which the company expects to demolish, according to its application. The homes in that neighborhood were secretly bought up by Pyramid years ago.

The June 5 action is against the town of Guilderland, the Guilderland Zoning Board of Appeals, Crossgates Releaseco, Guilderland Devco, Grace Wu, Brian Truong, and Tsz Keung Eng.

The town is a party to the suit, it says, because the town owns roads — Lawton Terrace, Rielton Court, Tiernan Court, and Gabriel Terrace — at the site where Costco is to be built. The zoning board was responsible for review of the project; Releaseco owns or controls many, if not all, of the properties where the Costco is to be built; Devco owns a number of the parcels at the site; and Wu, Truong, and Eng also own property at the site, at 8 Rielton Court, the suit says.

The suit alleges a number of problems with the approval process, claiming, for example, that the zoning board failed to meet as a body to schedule the April 19, 2023 public hearing, rendering void the May 4 resolutions approving a special-use permit and adopting findings.

As a second cause of action, the suit alleges the zoning board did not provide the Albany County Planning Board with a “full statement of the action” as required by General Municipal Law; third, the zoning board did not comply with the State Environmental Quality Review Act, the suit alleges.

For the fourth cause of action, the suit asserts that Costco is not an “Automobile Service Station” as defined by Guilderland’s zoning code. Fifth, the suit maintains, the Costco big-box store selling gasoline is not permitted by the town’s zoning code as a “Retail, General” use — Costco selling gasoline is a new use, not listed in the Guilderland zoning code, the suit states as its sixth cause.

Seventh, the suit alleges, since the zoning board did not address Costco being a “new use not listed in the Guilderland zoning code,” its granting of a special-use permit is “arbitrary, capricious and an abuse of discretion.”

Eighth, the suit claims, “Even if the Costco fit Guilderland’s zoning definitions, the use is not consistent with the Code’s requirements.” Ninth, the suit alleges, the zoning board does not have jurisdiction to consider the applicant’s special-use application, and, 10th, it says, Guilderland violated Town Law by allowing the applicant to proceed with that application.


Secrecy alleged

Much of the suit centers on Guilderland’s creation of a Transit-Oriented Development district or TOD. 

“Largely as a result of the Crossgates Mall’s negative impact on the community, in late 2016, Guilderland issued the Westmere Corridor Study (WCS) which recommended a new, Transit Oriented Development (TOD), zoning overlay, to encourage Pyramid to pursue mixed-use, non-auto dependent development,” says the suit, going on to quote from the Westmere study, citing “reduced emphasis on the automobile through walkable, compact design.”

The study continued, “An abundance of surface parking directly conflicts with this concept in both form and function.”

The suit goes on to allege that the town did not properly notice the public hearing for the TOD law.

The suit also claims that, at an Albany County Planning Board meeting on May 15, 2018, Pyramid promised to use the TOD to create a mixed-use community, quoting, “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.”

While the town was working on the Westmere Corridor Study and the TOD, the suit says, “Pyramid was purchasing, or had completed purchasing, properties in the Gabriel neighborhood … through subsidiaries and require non-disclosure agreements to limit public knowledge and scrutiny of its development plans.”

The suit gives an example, citing an Altamont Enterprise story, that, at the end of 2016,  Pyramid publicly stated it had “no plans to build a hotel” while it presented plans for a five-story hotel “just three months later.”

The suit alleges, “Through 2018, Pyramid secretly completed a number of plans for a Costco,” and lists, with dates, 10 activities such as a soil-profile map and erosion-control plan.

In March 2021, the suit goes on, the county planning board advised with Pyramid’s proposal for a 222-unit apartment complex — now, in 2023, being built by another developer — that proposal did not fit the TOD purpose of non-automobile modes of transportation.

In May of 2019, the suit says, Pyramid advised the town it intended “to file an application for a Costco retail facility” on a second site.

The suit alleges, “The Town concealed this information from the public and did not advise the public or any other agency involved in the SEQRA [State Environmental Quality Review Act] review of the Costco proposal for Site 2 or that the Applicant would resort to condemnation proceedings to obtain title to Town properties and annul deed restrictions preventing commercial development.”

Sometime after Aug. 14, 2019, the suit says, the town “published a positive declaration” — meaning in-depth environmental review is needed — identifying that the project had expanded to include a second and third site as well as the original apartment complex, the suit says.

“Again,” the suit says, “the positive declaration mentions nothing about the IDA condemning Town roads on the Applicant’s behalf and removing deed restrictions.”

The planning board’s scoping document, it says, did not disclose Costco as the tenant and did not disclose that Pyramid intended to use condemnation proceedings to extinguish deed restrictions prohibiting commercial development and obtain all or part of the Gabriel neighborhood roads at no cost.”

After the close of the scoping comment period, on Nov. 15, 2019, Pyramid disclosed its plans for Costco by filing a special-use permit application requiring approval from the zoning board.

The town roads and rights-of-way comprise 13.75 percent, or 2.27 acres, of the 16.5 acres where Pyramid plans to build the Costco, the suit says.

The suit also says that Pyramid clear-cut 5.2 acres of the Gabriel neighborhood woodlands before the close of the comment period for the draft environmental impact statement; also, it says, “Pyramid was well aware” that the site could support summer roosting for northern long-eared and Indiana bats.

The suit says that the county planning board issued a “disapproval” letter due to “significant negative intermunicipal and county-wide impact” inconsistent with the TOD’s purposes.

The IDA application, the suit says, “for the first time disclosed the Applicant sought the IDA to condemn property in the Gabriel neighborhood to obtain title to portions or all of Lawton Terrace, Gabriel Terrace, Rielton Court and Tiernan Court.”



On May 31, the IDA held a public hearing on the company’s requests for $2.2 million in tax exemptions — $2,123,600 (up from the original ask of $400,000) in sales-tax relief and a $75,000 break on the state’s mortgage-recording tax — and for the IDA to use its power of eminent domain to help it “acquire and extinguish any interest” Guilderland has with roadways on the project site.

Company representatives stated more than once that Pyramid was not requesting exemption from any real-property taxes; the company is currently suing the town to pay about half of what it now pays in Crossgates Mall taxes. 

Milan Tyler, an attorney from Phillips Lytle speaking on behalf of Pyramid, told the IDA board members that the company recently amended its application to reflect an increase in overall project costs, which he attributed to factors such as inflation and supply-chain issues, and the company revised its requested sales-tax exemption, which came about after analyzing which project costs would otherwise be subject to sales tax.

Tyler also emphasized that the sales-tax exemption request applied only to the initial construction and fit-up of the Costco, not to the ongoing operation of the store. 

“I’d like to emphasize this is not a giveaway of taxes. These taxes don’t exist today. If we did not do the project, there would be no sales tax or mortgage-recording tax,” Tyler said. “This is only additive to the tax base. In particular, this project, if approved by the IDA, the financial assistance would add to the tax base.”

Pyramid claimed the project would not move forward without its tax-exemption and road-condemnation requests, requests that IDA board member Paul Pastore wanted to make sure were correct. 

“If this agency does not approve the application,” Pastore asked, the “project will not go forward?”

“The answer is yes,” Tyler said. “The applicant has made that representation.”

Pastore, seemingly sounding like he wanted to make sure what he heard was right, asked again: “The application represents that the project will not go forward,” unless the applicant, Crossgates Releaseco, receives its requests. 

“Correct,” Tyler told him. “Without this financial assistance, Pyramid would not build the project, and therefore there’d be no place for Costco to go.”

Pyramid and the town of Guilderland together were successful in fighting earlier suits, one of them from Save the Pine Bush, trying to stop the development.

No actions were taken by the IDA on Wednesday, but the public-comment period for written comments was kept open until June 21. The IDA is next scheduled to meet on June 27, at which time “the agency currently intends to consider the comments received” on May 31, Donald Csaposs, the IDA’s chief executive officer, said during the meeting. 


Press conference and public hearing

Two public hearings were held by the IDA on Wednesday, one for the tax breaks and one for the condemnation request. 

There were about 19 speakers for the first public hearing, the tax-exemption request, with 13 opposed to the tax break and six in favor.

About a dozen people, nearly all previous commenters, spoke during the eminent-domain hearing, with four speaking in favor of the request.

Additionally, over 90 letters were submitted to the IDA; about 10 were in opposition to the request. 

Prior to the hearing, a press conference in opposition to the project was held by the Guilderland Coalition for Responsible Growth, a local grassroots group that has opposed the project since its inception; Save the Pine Bush, a community group that has advocated to protect the globally rare pine barrens since 1978; and Mothers Out Front, a climate-centric not-for-profit. 

During the press conference, Robyn Gray, who chairs Guilderland Coalition for Responsible Growth, spoke about Pyramid’s condemnation request. 

Gray said, while there are a number of issues with the project, including environmental and legal concerns, one of the main concerns is that Pyramid is asking the IDA to take the roads in the planned project site by eminent domain, which is where the government takes private property for public use. 

But, Gray said, the planned Costco is not a public purpose. 

Gray said a permissive referendum should be held on the condemnation request, so that residents could have a say on the project. 

The three groups organizing the protest also submitted a series of questions to the IDA about the project, one of which dealt with eminent domain. 

Gray asked, during the hearing, why the roads were “being taken by eminent domain rather than having the issue put before the public in a permissive referendum? Where did this idea come from? Who is responsible for pursuing eminent domain rather than a permissive referendum? Why would you not give residents the option to vote on such a project in our town?”

 Csaposs answered, “The applicant has the option to apply for the actions sought in the manner in which they did. Questioning why the applicant chose one approach versus another is not a topic that the IDA is required to consider.”

During the public-comment period, those in favor of the project spoke of its benefits to the local tax base and job market, while those in opposition were pointed in their criticisms.

Resident John Haluska told IDA board members that approving the tax breaks would be little more than a corporate handout. 

“I’ve looked through various sources of materials. I don’t see anything in the town of Guilderland law favoring corporate panhandling. This is what this is. This is what this is. This is corporate panhandling,” Haluska said. “We see it with the taxes that the Crossgates has repeatedly challenged.

“Here, we’re supposed to give them a gift. This is not a poverty stricken corporation by any stretch of the imagination. Please don’t sell us out. Please take the correct stand and go with the original deal — as you should. But please, no corporate panhandling.”

Wendy Dwyer, who no longer lives in Guilderland but still owns land in town, called Pyramid scofflaws, a comment that matched some of the fiery language in her letter to the IDA opposing the requests.

“So since Pyramid (and its many other names) can get HUGE tax breaks on their assessment, maybe even 2 million dollars, where is mine?” she asked.

“I want my assessments lowered since I will not benefit from a member only store, more CD waste in the landfills, more warming from more pavement and less trees, more idling cars, traffic, accidents, fumes, police and fire calls, traffic jams, bail outs, lost revenue as stores close going forward,” Dwyer wrote.

“Another stinking gas station when according to the CLCA [Climate Leadership & Community Protection Act] we are supposed to be working towards net zero emissions, planting trees, taxing polluters, electrifying the grid and so on.

“And wouldn’t you think Guilderland would want to support the businesses they already have including gas stations??? Na. Kiss the corps.

“It is the usual screw the people, screw the planet, this ends up screwing the children and pad the pockets of the corporate thieves.”

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