Second lawsuit filed over Guilderland Planning Board’s approval of Pyramid project

The Enterprise — Michael Koff

Lynne Jackson of Save the Pine Bush speaks at a press conference announcing a Nov. 20 court decision to halt Pyramid’s plans to build a Costco and 222 residential units near Crossgates Mall in Guilderland. 

GUILDERLAND — A week after a judge in Albany County Supreme Court ruled in favor of a group of Westmere residents and a Guilderland gas-station owner who were seeking to stop construction of a 222-unit development on Rapp Road and proposed Costco Wholesale store, a not-for-profit organization has filed a lawsuit over the same projects.

Save the Pine Bush is bringing the suit based on the Guilderland Planning Board’s August adoption of the findings statement for Pyramid’s Rapp Road and Western Avenue projects, as well as the October site-plan approval given to the company’s apartment and townhome development — an approval that was given based on the findings statement. 

A findings statement is part of the State Environmental Quality Review Act (SEQRA) process and is prepared after a final environmental impact statement (FEIS) has been filed but before the lead agency makes its final determination about an action or project. 

A positive findings statement, like the one adopted by the Guilderland Planning Board in August, indicates that the action or project has been approved by the lead agency after there has been consideration of the final environmental impact statement. 

The findings statement also “demonstrates that the action chosen is the one that avoids or minimizes adverse environmental impacts presented in the EIS and weighs and balances them with the social, economic, and other essential considerations,” according to the state’s Department of Environmental Conservation.

Named in the Article 78 proceeding — which is typically brought by citizens questioning government actions — are the town of Guilderland and its planning board, Pyramid Management Group and two of its affiliated limited-liability corporations: Rapp Road Development and Crossgates Releasco.

Neither the town nor Pyramid responded to requests for comment.

Save the Pine Bush’s Nov. 27 court filing states that it is aware of the recent court decision that halted the project, but “nonetheless brings this action in the interest of preserving” its rights “in the event that” Pyramid is able to move forward with the project, for example, “in the event of reversal or dismissal of the prior decision of this Court.”

That winning lawsuit, filed in October, was brought against both the town and Pyramid after the planning board approved the company’s Rapp Road and Western Avenue projects. But the victory could be short-lived — the decision was made at the lowest level in the state’s three-tiered court system and Pyramid said it will appeal.

Pyramid’s plan 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.

Specifically, Pyramid was proposing 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 was proposing two five-story apartment buildings, one with 94 units and the other with 98 units. The project additionally included about 3,900 square feet of commercial space. The company was also proposing a total of 362 parking spots: 84 indoor spaces and 278 outdoor spots;

— 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.

Save the Pine Bush is seeking a judgement and declaration that the August adoption of the findings statement and October site-plan approval were “arbitrary and capricious, contrary to law, and an abuse of discretion,” the court filing states.

The not-for-profit organization also claims that the planning board relied on an environmental impact statement that contained factual errors and conclusions not supported by empirical evidence, according to the filing, which is a violation of SEQRA, while also committing “procedural and jurisdictional errors” in adopting the findings statement and approving the site plan — and did so “with an insufficient number of members serving on the planning board.”

Among these factual errors and conclusions not supported by evidence, according to Save the Pine Bush, are Pyramid’s assertions that the sites are not habitats for endangered and threatened species and that the sites “contain no evidence of the presence of Albany Pine Bush.” Save the Pine Bush contends there is evidence that the sites are habitats for endangered and threatened species. 

Save the Pine Bush, in its court papers, also states that the planning board continued to rely on faulty information from Pyramid-provided consultants, eschewing expert testimony Save the Pine Bush provided that showed the sites shouldn’t be developed — or directly refuted findings from Pyramids’ consultants.

The FEIS, according to Save the Pine Bush, “contained various assertions that the proposed project would have no adverse impact on specific aspects of the environment that are contrary to fact.”

Citing one example of its contrary-to-fact argument from the final environmental impact statement: “Sites 1, 2, and 3 are not conducive to the establishment of pitch pine-scrub oak habitat which is characteristic of the Albany Pine Bush,” and “[t]he development sites are not and have no potential to support significant ecosystem services.” Save the Pine Bush asserts, “There is no empirical data or evidence presented in the FEIS to support this conclusion. 

The not-for-profit goes on to cite a number of contrary-to-fact instances to bolster its argument, for example, questioning “the methodologies used in surveying the sites for the presence of Karner blue [butterflies],” and “declaring that they were and are inadequate,” because the draft environmental impact statement declared “no suitable habitat exists on-site for the Karner blue butterfly, and no Karner blue butterflies were located at the site.”

Save the Pine Bush also stated that a noted expert on the Karner blue butterfly had “raised serious concerns about this conclusion.”

The court papers say that planning board member James Cohen resigned from the board in August, leaving it with six members. 

New York State Town Law, according to Save the Pine Bush, gives a town board the authority to create either a five- or seven-member planning board, and states further that Guilderland’s own town law specifies its planning board shall consist of seven members.

Save the Pine Bush claims that the planning board “has been operating in violation” of town and state law since Cohen’s resignation, and “has continued to make determinations on development projects despite having the sufficient members required by law.” 

The planning board’s August adoption of the findings statement and October approval of the site plan for the development of 222 apartments and townhomes are included among the determinations made in violation of town and state law, Save the Pine Bush claims.


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