GUILDERLAND — In a 4-to-1 vote on Dec. 1, the Guilderland Town Board authorized the town to file a notice of appeal in the resident-backed lawsuit that stopped the construction of a 222-unit development on Rapp Road as well as a proposed Costco Wholesale store.

The vote was taken after the board had exited an executive session to discuss pending litigation. The state’s Open Meetings Law allows elected boards to discuss “proposed, pending, or current litigation” in closed session. However, the law requires any motions or votes to be public.

Councilwoman Laurel Bohl cast the sole dissenting vote, Town Clerk Lynne Buchanan told The Enterprise on Monday; Supervisor Peter Barber had made the motion to file the appeal and Councilwoman Rosemary Centi seconded the motion. 

Prior to her 2019 election to the board, Bohl, a Democrat, headed the Guilderland Citizens (now Coalition) for Responsible Growth, a citizens’ watchdog group, and had often been critical of Guilderland’s boards as being too lenient toward developers. The other four members of the town board are also Democrats.

Bohl was also the lone dissenter in August when the Guilderland Town Board passed a resolution, 4 to 1, to let the Champlain Hudson Power Express Inc. run underground lines through the town to bring electric power from Canada to the New York City area.

Albany County Supreme Court Judge Peter Lynch on Nov. 20 ruled in favor of a group of Westmere residents and a Guilderland gas-station owner who were seeking to stop the projects.

Pyramid Management Group, whose affiliated limited-liability corporation Rapp Road Development is the project’s developer, has already said it will appeal Lynch’s decision, which was made at the lowest level in the state’s three-tiered court system.

Barber did not return a call seeking comment.

James Bacon, the attorney who brought the case against the town and Pyramid, told The Enterprise that, with Pyramid stating it would appeal the decision, “there’s nothing atypical” about the town filing an appeal as well.

Asked if he thought Lynch’s decision would hold up on appeal, Bacon said, “Predicting what happens at the Appellate Division is like trying to read tea leaves, but I think we made a strong case — and I think the court made a very thorough determination.”

But he added that he’s seen “plenty of cases” where defeat has been snatched from the jaws of victory.

Save the Pine Bush on Nov. 27 filed a second suit against the town and company over the projects in “the interest of preserving” its rights “in the event that” Pyramid is able to move forward with its proposals, for example, “in the event of reversal or dismissal of the prior decision of this Court,” the not-for-profit organization’s court filing states. 

Pyramid’s proposal 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 were 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.

Westmere residents Lisa and Thomas Hart and Kevin and Sarah McDonald, along with gas-station owner Jonathan Kaplan filed their suit in September after it took the planning board eight-and-half minutes to approve the Pyramid’s Rapp Road and Western Avenue projects at a previously-not-scheduled late August meeting. Kaplan has since sold his eight convenience stores, three car washes, and gas-distribution business to Stewart’s Shops.

The issue, Lynch wrote in his Nov. 20 decision, was whether the Guilderland Planning Board had 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 77-page 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 injected 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 wrote, “Since when do high-rise buildings comport with the character of historical one story bungalows.”