GUILDERLAND — Depending on the day and the lawsuit, Guilderland and the Pyramid Management Group are either adversaries or allies. Most recently, the allies asked that a lawsuit brought over Pyramid’s Rapp Road and Western Avenue projects be dismissed.

In separate court filings on Oct. 21, the owner of Crossgates Mall and the town of Guilderland asked Albany County Supreme Court Judge Peter Lynch to dismiss the case brought against both the town and company by a group of Westmere residents and a Guilderland gas-station owner over Pyramid’s Rapp Road and Western Avenue projects.

The lawsuit was filed “as a result of a series of actions and failure to act by the Respondents relating to land use applications for three sites in the Town of Guilderland…,” according to the original court filing.

Guilderland has Pyramid, which is also suing the town to have its tax assessment cut in half, do all the heavy lifting in this filing by having the company answer the plaintiff’s Sept. 25 petition point-by-point, except in one instance.

In its memorandum of law in support seeking to have the case dismissed, the town states, “To avoid duplicative submissions, respondent Town joins with the motion for summary judgment submitted by co-respondents Pyramid Management Group. LLC, Rapp Road Development, LLC and Crossgates Releaseco, LLC, and limits this memorandum of law in response to the Ninth Cause of Action in the Petition.”

Pyramid’s plan includes developing three sites:

— Site 1, a 19-acre plot at Rapp and Gipp roads for 222 apartments or townhouses — with the possibility for another 90 apartments to be built on the site, which would need only site-plan approval from the town’s planning board (see related story); 

— Site 2, sixteen acres at Western Avenue and Crossgates Mall Road for a Costco, a membership-only, 160,000-square-foot warehouse-price club, that would offer gasoline service and 700 parking spots; and

— Site 3: Eleven acres between the Costco site and Pyramid’s hotel on Western Avenue that could be used for retail, offices, or apartments. There are no current development plans for Site 3 — however, Pyramid did present a zoning-compliant conceptual plan that could include 115,000 square feet of retail space, 50,000 square feet of office space, and 48 apartments.

The plaintiffs have also asked the court to grant an injunction preventing Pyramid from starting construction on any of its proposed projects so that the lawsuit “does not become moot.” The suit is an Article 78 proceeding, which is typically brought by citizens questioning government actions.

Pyramid has asked that the motion for an injunction filed by Westmere residents Lisa and Thomas Hart and Kevin and Sarah McDonald, and gas-station owner Jonathan Kaplan be denied. Pyramid argues that this is the second time the group has “filed unripe claims and a patently meritless preliminary injunction motion to delay the Town of Guilderland’s review and determination of the Pyramid Defendants’ land use applications for a mixed-use residential project on Rapp Road and a Costco in the vicinity of Crossgates Mall.”

 The group filed a federal lawsuit in April after Pyramid clear-cut more than two acres of trees on March 26 to make way for a Costco. The judge dismissed the suit in August. 

Pyramid claims that the current lawsuit filed in Albany County Supreme Court in September makes “essentially the same allegations of deficiencies” that the federal lawsuit made. The federal court dismissed that suit, Pyramid claims, because “the SEQRA [State Environmental Quality Review Act] review and land use reviews had not been completed.”

The plaintiffs are again making the same mistake, Pyramid asserts, “making essentially all of the same allegations … before the Town has decided any of the pending land use applications.” 

And it’s because the town and its associated boards have yet to complete their reviews of the projects, Pyramid states, the “Petitioners’ claims should once again be dismissed as unripe.” 

Plaintiffs’ claims and defendants’ answers 

Pyramid, and by extension the town of Guilderland, in its point-by-point rebuttal repeatedly either — and in nearly every case, all three — just denies the allegation; claims the allegation contains no legal conclusion warranting a response; or asks the court to weigh in on the “legal sufficiency” of the plaintiff’s claims. 

The Harts, the McDonalds, and Kaplan are seeking, among other things:

— To have vacated the planning board’s adopted State Environmental Quality Review Act review findings for the Rapp Road and Western Avenue projects.

The plaintiffs claim the Guilderland Planning Board failed to comply with the coordinated review requirements laid out by SEQRA because earlier environmental review forms identified only Site 1 for development; however, “more than a month after establishment of lead agency the Board identified that the project had more than doubled in size and added significant commercial and office uses and multi-family units proposed for Sites 2 and 3,” according to the court documents.

The plaintiffs claim that the planning board did not recirculate an updated environmental-review form that detailed the “the environmental inventory of Sites 2 and 3” or identified the project expansion onto the two new sites.

The Harts, the McDonalds, and Kaplan claim the town violated SEQRA by segmenting its review — that is, considering portions of the project and not the whole. 

They also claim the clear-cutting was a violation of SEQRA and the state’s Environmental Conservation Law.

“The Town and Pyramid violated the ECL by sanctioning, and accomplishing, the clear cutting of 5.2 acres of trees west of Lawton Terrace in the Town of Guilderland, New York on March 26, 2020,” the plaintiffs allege in their Sept. 25 court filing.

In its Oct. 21 court filing, Pyramid denies the allegations; maintains the allegations “contain legal conclusions to which no responsive pleading is required”; and “respectfully refer the Court to the documents referenced by [the plaintiffs] in [the petition] for a determination of their content, meaning, and effect.”

Addressing the clearing-cutting, Pyramid, in court papers states, “Town Planner [Ken] Kovalchik confirmed that no Town authorization was required prior to cutting trees on Site 2.”

Following the clear-cutting, the town had issued a cease-and-desist order;

— An order preventing further clear-cutting or construction activities on sites 1, 2, and 3.

The Harts, the McDonalds, and Kaplan filed their federal lawsuit on March 26 after Pyramid clear-cut more than two acres of trees to make way for a Costco.

The suit, filed in the Northern District of New York, alleged the clear-cutting violated the federal Clean Water and Endangered Species acts as well as the SEQRA, and further violated the plaintiffs’ due process rights and privileges guaranteed by the 14th Amendment of the United States Constitution.

The lawsuit was dismissed by a federal judge in August. 

— Prevention of further planning and zoning board involvement in Crossgates land-use reviews because the two boards “don’t have jurisdiction to consider Pyramid’s development plans absent Town authorization regarding the use or alienation of Town-owned property…”

The plaintiffs claim that, when Pyramid’s agent for the project, James Soos, signed the applications for a subdivision and site-plan review for Site 1, and an application for a special-use permit for Site 2, he was “certifying that he had authorization from all the property owners within Sites 1 and 2,” the court documents state. 

But the plaintiffs claim this is not true because Pyramid doesn’t own or control Guilderland roads or town rights-of-way in either the Lawton or Westmere neighborhoods.

Pyramid bought up most of those properties years ago, leaving vacant houses in what some residents call a ghost neighborhood.

Because of this, the plaintiffs claim, “Pyramid was unauthorized to sign the Town’s site plan, subdivision and special use applications to develop Town property, the Town’s Planning Board and Zoning Board of Appeals do not have jurisdiction to continue to review those applications.”

Pyramid, in court papers, denies the allegations; maintains the allegations “contain legal conclusions to which no responsive pleading is required”; and “respectfully refer the Court to the documents referenced by [the plaintiffs] in [the petition] for a determination of their content, meaning, and effect”;

— An order releasing documents requested under the state’s Freedom of Information Law.

The court documents state that on March 29 and April 2, the petitioners’ submitted FOIL requests for communications between Pyramid and the town of Guilderland that related to the proposed Costco project.

The town denied the request on April 23, the court papers state, and only the March 29 FOIL was addressed in the denial, which said that the “request did not ‘reasonably describe’ the record being requested as required by the FOIL law.”

An appeal was filed on April 27.

“However,” according to the court filing, “rather [than] responding ‘within 10 business days,’ five months have elapsed with no determination” so the appeal was, in effect, denied without due process.

This is the one accusation to which Guilderland itself responded.

“Petitioners are mistaken on the facts and law,” the town states. 

The town claims the second and third FOIL requests “were submitted in the first weeks of the COVID-19 pandemic when Town staff was limited to only essential workers, and during which ... Governor Cuomo had issued a State of Emergency with a stay on most civil matters.”

The governor’s executive order directed municipalities to pause “the statute of limitations for the commencement, filing, or service of any legal action, notice, motion, or other process,” the town argues.

 After the plaintiffs had filed their federal lawsuit, the town argues, their lawyer “showed no interest in pursuing the FOIL appeal” and, even after they lost their lawsuit, their attorney “did not inquire about or revive his FOIL appeal.” 

Guilderland also notes that “the Costco site plan documents, the bulk of a FOIL response, were posted on the Town website.”