Guilderland and Pyramid win reversal of lower court decision

— Illustration from Guilderland town planner Kenneth Kovalchik

A one-way exit from Westmere Terrace to Rapp Road was offered to Westmere Terrace residents as a solution to the issue with making left turns onto Route 20, says Guilderland town planner Kenneth Kovalchik.

GUILDERLAND — An appeals court has unanimously overturned a lower court’s ruling that halted the construction of Pyramid’s Rapp Road and Western Avenue projects. 

The July 8 decision from state Supreme Court’s Third Appellate Division reverses a November 2020 decision by Albany County Supreme Court Judge Peter Lynch that stopped construction of a 222-unit apartment development on Rapp Road and shot down plans for a future Costco Wholesale store on Western Avenue. 

Kevin and Sarah McDonald, along with other Westmere residents Lisa and Thomas Hart, and former gas-station owner, Jonathan Kaplan, in September 2020 filed a lawsuit against both the town of Guilderland and Pyramid Management Group after the town’s planning board approved the company’s proposals

The plaintiffs won’t pursue an appeal.

“The decision was disheartening,” McDonald said; he believed Judge Lynch got it right the first time, that “he saw what we saw as our concerns,” but “unfortunately” the appeals court judges did not see it the same way.

“I think we worked really hard over two years to address all of the concerns that were raised,” Guilderland Supervisor Peter Barber told The Enterprise. A lawyer, Barber argued the case for the town.

“We took the appeal primarily because, as confirmed by this decision, the planning board did everything right. They took what’s called the ‘hard look.’ They engaged and got the opinions of all involved agencies including the Pine Bush Commission, DEC, U.S. Fish and Wildlife, Albany County …,” Barber said.

James Bacon, who argued the case for the Westmere residents, said he was surprised that the middle-level panel of judges had unanimously overturned Lynch’s decision. “I thought Judge Lynch’s 77-page decision was the most thorough I’d seen in 35 years [of practicing environmental law] so I thought it was going to be upheld,” said Bacon.

The Appellate Division decision was 19 pages.

In October of last year, the planning board unanimously approved Pyramid’s site plan for its proposed 222-unit apartment and townhome development on Rapp Road. 

The project is slated to be built on the west side of Crossgates Mall, the side of the mall with Macy’s, and southwest of the intersection of Gipp and Rapp roads.

The plan proposes 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 is proposing two five-story apartment buildings, one with 94 units and the other with 98 units. The project additionally includes about 3,900 square feet of commercial space.

Barber said the next step for the 222-unit apartment complex is to apply for a building permit “when they are ready.”

Comparatively, the Costco proposal is in the early stages of development and still has to be presented to the Guilderland Zoning Board of Appeals for a special-use permit. 

The plan for Costco, a membership-only price club, is for a 160,000-square-foot store with 700 parking spots, and onsite gasoline service. 

The Guilderland Planning Board will do a site-plan report — looking at landscaping, lighting, and road layout, “very site-specific issues,” said Barber — and then the zoning board will review the report as it decides on the special-use permit.


A disheartening decision

Hart said he was very disappointed with the decision, but he’s “really upset in the fact that it came back as a unanimous decision by the court.” 

Not one of the five appeals court judges agreed with Lynch. 

One of the major issues was whether or not the planning board had taken a “hard look” at the proposal.

Lynch said the town hadn’t taken a hard look.

“I mean, it’s obvious that they didn’t take a hard look,” Hart said.

But all five appeals court judges disagreed with Lynch.

In his November 2020 decision, Lynch wrote that the planning board had violated the procedure set out the State Environmental Quality Review 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.

The appeals court wrote Lynch had repeatedly “erred by determining that the Planning Board failed to take a hard look” when considering the project’s impact on community character, local wildlife, and the Rapp Road Historic District, among other things. 

The planning board, the appeals court determined, had taken “requisite hard look” at the issues raised by Lynch. 


What’s next 

While the appeals court didn’t uphold Lynch’s decision, McDonald does take some comfort knowing he’s playing a part in shaping future development in town as he made his first run for elective office in June’s Democratic primary.

Although he placed last in the four-way race for two town board seats, a race that was based largely around issues of development, his ticketmate, Christine Napierski, unseated 16-year incumbent Paul Pastore. Both of the challengers, Napierski and McDonald, had opposed Pyramid’s plans.

McDonald’s fight is not completely over; he still has the Working Families Party line in the November election.

On not moving forward with an appeal and having the construction in his neighborhood, McDonald said it “hurt” and was “unfortunate,” because, even with Crossgates Mall behind Westmere Terrace, it’s still a quiet, buffered neighborhood.

Barber’s view is that the town worked with residents of the Rapp Road Historic District — where homes were hand-built by Blacks coming from Mississippi during the Great Migration and in some cases are still occupied by their descendents — and with the residents of Westmere Terrace to solve “pre-existing long-term problems.”

“The Rapp Road historic community has suffered from cut-through traffic for decades and now, with this redesign, traffic studies show and both engineers signed off on this, saying it’s going to reduce the existing traffic that goes through that neighborhood,” said Barber.

Barber said Westmere Terrace residents, starting with Helen Guiles a quarter-century ago, have had trouble turning left onto Route 20. Barber sent The Enterprise a 1994 letter from the state’s Department of Transportation to Guiles, stating the solution would be to work with Crossgates Mall to build a one-way exit roadway from the back of Westmere Terrace to Rapp Road.

A one-way exit from Westmere Terrace to Rapp Road was offered to Westmere Terrace residents as a solution to the issue with making left turns onto Route 20, said Guilderland town planner Kenneth Kovalchik in an email to The Enterprise.

“But people on Westmere Terrace for various reasons didn’t want it …,” said Barber. “I think somebody said they didn’t want shoplifters running down their street … or that people might get lost and go up their road by accident.

“These are, I think, very remote and unlikely occurrences but it’s solving a long-term problem. The way it would be designed, nobody in their right mind would go down that road because it’s going to bend right back towards the light so it’s not like a shortcut.”

The unanimous decision from the appeals court closed the door for a future appeal, Hart said. “If there was one or maybe two of the judges that had sided against the development, then you would have a fighting chance,” he said, but now “it’s really a done deal.” 

Hart said he’d received opinions from several different attorneys, who all said the same thing: With the decision being unanimous, the plaintiffs would just be throwing away their money, pursuing an appeal with the state’s top court, the Court of Appeals.

Lisa Hart added that only a handful of appeals are even accepted to be heard by the Court of Appeals, so it was unlikely their case would be picked.



“We really have nothing against Costco,” Tom Hart said. “It’s just the way that town and Pyramid did everything.”

He’d like to see Costco moved to another location — an opinion, he asserted, that was shared by all the Democrats running for town board in a recent forum held by the League of Women Voters of Albany County.

Incumbent Guilderland Town Board member Paul Pastore, who had voted in favor of Guilderland appealing Judge Lynch’s decision and who was defeated in June’s Democratic primary, said during the forum that, “given the difficulties at Crossgates,” the town should consider that “Costco could go into the mall itself as opposed to where it was originally planned.”

McDonald said his main concern was with the proposed apartments. 

“I know the mainstream media keeps going, ‘Oh, it’s Costco. Everybody’s against Costco,” he said. “But it’s the five-story apartment that is concerning to me, because I’m close to it.”

McDonald said residents on the three upper floors will be able peer down into his backyard and see his kids playing.

“I’m losing my privacy,” he said. Pyramid has said it will buffer as best it can, but he was hoping that decision wouldn’t have been left up to the company. McDonald added that he hoped “the town and the administration would have asked them to kind of scale down a little bit. But that didn’t happen.”


Hart’s concern

Lisa Hart took issue with Barber acting as the attorney for the town, arguing on its behalf before the appeals court in May. “Actually argue[ing] against his own town residents,” she said. It shows the town is for the “big corporations” and for the “extreme growth that Guilderland has seen.”

Barber argued on behalf of the town, the first named party in the suit, helping the town attorney, James Melita, with Guilderland’s appeal.  

Melita had never argued a zoning matter before the appellate court, but Barber told The Enterprise he had done it “dozens of times.” Barber said he’s a recognized expert on land-use decisions. For the 25 years before becoming supervisor, he defended municipalities on zoning, planning, and SEQR decisions, he said.

Barber estimated the town had saved $20,000 to $25,000 with him helping Melita rather than having to resort to outside counsel. 

On the criticism that he’s arguing against his own residents, Barber said the town of Guilderland was party to a lawsuit and he was representing the town in the matter.

The town adopted a neighborhood study that allowed for and encouraged this development, Barber said, noting he wasn’t on the board at the time the study was adopted but stating the town has to follow the neighborhood study. 

“I think it’s now clear from reading the appellate division’s decision that we were correct,” Barber said of the Westmere Corridor Study.

— Melissa Hale-Spencer contributed the comments from Peter Barber, Kenneth Kovalchik, and James Bacon.

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