Guilderland residents’ lawsuit halts Pyramid projects, for now

The Enterprise — Michael Koff

The residents of Westmere Terrace who actually brought the lawsuit that stopped Pyramid from building said the win was due in large part to one person: James Bacon, the plaintiffs’ lawyer.

GUILDERLAND — Albany County Supreme Court Judge Peter Lynch on Friday ruled in favor of a group of Westmere residents and a Guilderland gas-station owner who were seeking to stop the construction of a 222-unit development on Rapp Road as well as a proposed Costco Wholesale store.

“I think everybody was in shock … The little people won,” Kevin McDonald, one of the plaintiffs and victors in the suit, told The Enterprise on Monday. “It was a case [where] we went up against a large corporation and, you know, those things are hardly ever on the side of the residents.” 

McDonald and his wife, Sarah, along with other Westmere residents Lisa and Thomas Hart, and gas-station owner Jonathan Kaplan in October filed a lawsuit against both the town of Guilderland and Pyramid Management Group after the town’s planning board approved the company’s Rapp Road and Western Avenue projects.

The victory may be short-lived, however. The decision was made at the lowest level in the state’s three-tiered court system.

Pyramid in a statement to The Enterprise said, “Pyramid Management strongly disagrees with the decision. We are very confident that we will have success in our appeal. We intend to take all appropriate actions to complete and finalize the governmental approval process for each project.​”

Neither Guilderland’s supervisor, Peter Barber, nor its attorney, James Melita, returned calls seeking comment. 

Pyramid’s plan had included developing three sites:

— Site 1, a 19-acre plot at Rapp and Gipp roads for 222 apartments and townhouses, with the possibility for another 90 apartments to be built on the site;

— 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

Lynch wrote that the apartments and townhomes and proposed Costco had represented “maximum build scenario,” and said that nowhere in the record was there any evidence of a scaled-down alternative, which would have “enable[d] a comparative analysis to mitigate impact”; 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 issue at hand, Lynch wrote, is whether the Guilderland Planning Board complied with its obligations under the State Environmental Quality Review Act — procedurally and substantively. “It did not, on both counts,” Lynch 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.

In violating 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.

Throughout his decision, Lynch pointed to omissions that the planning board failed to take into consideration when making its decision.

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.” The district is a neighborhood of small homes, many of them hand-built by African Americans who arrived in the pinebush, largely from Mississippi during the Great Migration.

With the closest homes just a few hundred feet away from proposed five-story buildings, the planning board failed to consider “any alternative with reduced building height.”

Lynch even injects a note of sarcasm into his analysis. 

Pointing out that the draft environmental impact statement adopted by the planning board in February claimed Pyramid’s projects would not be “out of character with the area, rather they are authorized pursuant to Town of Guilderland’s [Transit-Oriented Development District] TOD district.” 

“Really?” Lynch writes “Since when do high-rise buildings comport with the character of historical one story bungalows.”

Lynch notes that, prior to Pyramid filing its application with the town, Guilderland had enacted the TOD, on June 5, 2018 — all  of Pyramid’s proposed projects are located in and subject to TOD regulations. 

The court cites the Albany County Planning Board’s comments on the project as an example of Pyramid’s misleading the Guilderland Planning Board because the company’s misrepresentation was used by the board when it was making its final decision.

Prior to its adoption, The Albany County Planning Board commented on the TOD’s enactment, noting that Michael Shanley of Pyramid made the following statement: “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…”

Lynch writes that Pyramid’s representation of a civic component “is most troubling,” because the Albany County Planning Board was making its comments in May 2018 and the “the Costco Site plan was prepared as early as November 1, 2017 but apparently not disclosed.”

It’s evident, Lynch writes, that Costco “is not a civic component.” 

And, “on scrutiny,” according to the court, Pyramid offered the board information on which to base its decision for which no actual evidence existed.

“That is not the stuff that the SEQRA hard look test is made of,” Lynch writes. 

The draft environmental impact statement “also fails to mention, let alone account, for the fact that Costco will not improve the environment for non-automobile-oriented modes of transportation, will not reduce the number of required parking spaces, and will not focus intense development away from existing residential neighborhoods, all in contravention of TOD,” Lynch writes. “Moreover, the DEIS fails to account for the fact that the 13 houses proposed for demolition constituted an existing neighborhood when TOD was enacted, i.e. entitled to protection.”

In May, the Albany County Planning Board issued its recommendation to the town’s zoning board about Costco’s special-use permit application.

“In fine, the ACPB opined that the proposed use did not comport with the provision of TOD, it ‘ignores the community character’ [i.e. Rapp Road Historic District] and ‘it does not protect nearby neighborhoods, it does not create neighborhoods, it is not pedestrian friendly, it does not support bus transit services and does not emphasize alternate modes of non-automobile-oriented modes of transportation,’” Lynch wrote. 


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