Guilderland and Pyramid beat back second lawsuit, Save the Pine Bush to appeal decision

Enterprise file photo — Michael Koff

The not-for-profit advocacy group Save the Pine Bush celebrated in November 2020 when Westmere residents won a lawsuit (which was overturned this July) that temporarily stopped construction of two Pyramid projects.

GUILDERLAND — For the second time this year, the town and Pyramid have fended off lawsuits filed over the Guilderland Planning Board’s approval of the company’s projects. 

Acting Albany County Supreme Court Judge Roger McDonough in an Oct. 7 decision found a number of Save the Pine Bush’s arguments “to be lacking in merit” and dismissed the case. 

On Oct. 18, the not-for-profit advocacy group notified the state Supreme Court’s Third Appellate Division it would appeal the decision. The same appeals court overturned a lower court’s decision in July 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.

In an Oct. 21 court filing, the town and Pyramid asked the appeals court to push Save the Pine Bush to have its appeals brief filed by Dec. 1.

Pyramid, which has sunk untold hours and dollars into the projects as well as lawsuits defending them, now claims Dec. 1 will be the straw that breaks the camel’s back.  

“A delay in the resolution of this appeal will also specifically jeopardize the Costco Project and result in its potential loss to Pyramid, the Town, and surrounding municipalities,” the company argued.

Save the Pine Bush filed its lawsuit in November 2020 aware of the first lawsuit, stating it had done so “in the interest of preserving” its rights “in the event that” the company was able to move forward with its project, if, for example, there were a “reversal or dismissal of the prior decision ….”

The town and Pyramid looked to have the lawsuit tossed in August, but the not-for-profit argued the case should not be thrown out just because Guilderland and Pyramid were successful in an earlier somewhat-similar decision because the two cases were making different arguments.

 Save the Pine Bush alleged the planning board:

— Failed to take a “hard look” at the impact the project would have on “certain threatened or endangered species or species of special concern,” for example, the Karner blue butterfly, four types of bats, and a worm snake.

The planning board failed to consider, the suit said, the impact the project would have on two types of grass and on an ostrich fern;

— Failed to conduct a complete survey to assess for: the impact of pesticides and traffic; wetland presence; and the project’s impact on climate change and air quality;

— Failed to address the criticisms related to the previously-listed issues following their publication in the draft version of the Environmental Impact Statement; 

— “Included empirically false and unsupported assertions regarding the Albany Pine Bush ecosystem in the FEIS” [Final Environmental Impact Statement];

— “Improperly made determinations on the development projects despite not having the sufficient members required by law”; and

— Failed to hold a public hearing on Oct. 28, 2020, as is required by law. 

A 97-minute public hearing for the “Possible Consideration of Site Plan Approval for a 222-unit Apartment and Townhome Development - Rapp Road Development, LLC,” was held on Oct. 28, 2020.

Approximately the first 40 minutes of the meeting could not be viewed live online — however, the meeting started about 20 minutes late due to technical difficulties, and could not be attended in-person because of the pandemic. Planning board meetings are also broadcast locally on Spectrum Cable.

On the environmental issues, McDonough wrote that the appellate court in the first lawsuit had reviewed the “entirety of the underlying” state  Environmental Quality Review Act record and found that the Guilderland Planning Board had satisfied all its requirements. “Accordingly,” McDonough writes, “the Court finds that the petition must be dismissed and the relief requested therein denied as to all SEQRA related claims.” 

McDonough wrote that both sides agree the public hearing’s first 20 minutes were unavailable via livestream; however, it was still broadcast on two separate public-access channels and the entire hearing continues to be available on the town’s website. 

“In light of all the measures in place to open this hearing up to the public, the Court has not been persuaded that respondents’ actions/inactions over the opening 20 minute time period constitute a violation of Public Officers Law,” McDonough wrote. “Accordingly, the Court finds that the petition must be dismissed and the relief requested therein denied as to all challenges to the public hearing.”

Of the other “remaining arguments and requests for relief,” made by Save the Pine Bush, McDonough, wrote, “[they] have been considered and found to be lacking in merit.”


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