GUILDERLAND — On Friday, another lawsuit filed to stop the building of a Costco retail center and fueling station near Crossgates Mall was dismissed “in its entirety.”

Supreme Court Justice Christina L. Ryba found that the claims “were previously decided” and were “lacking in merit.”

The motion to dismiss was filed by the respondents, the town of Guilderland and its zoning board of appeals along with owners of property at the site to be developed. James P. Melita, the town attorney, represented Guilderland and the zoning board while Whiteman, Osterman & Hanna represented the property owners.

One further suit seeking to stop the Costco project, filed in September, has yet to be decided. It has the same petitioners represented by the same lawyer as the suit that was just dismissed ​​and seeks to annul the Aug. 22 decision by the Guilderland Industrial Development Agency to allow Pyramid to acquire by eminent domain the roads in the neighborhood Pyramid had bought up years ago where it plans to build the Costco.

The suit that was dismissed on Dec. 29 was filed on June 5 by 1667 Western Ave., LLC, which is a Stewart’s Shop selling Mobil gasoline in front of Crossgates, and Thomas and Lisa Hart, Westmere residents who were part of an earlier group who tried, ultimately unsuccessfully, to stop three Pyramid projects, including Costco. Lisa Hart is currently a member of the committee updating Guilderland’s comprehensive land-use plan.

The paperwork, 44 pages long, was filed by James Bacon, the same lawyer who represented the first group that won at the Supreme Court level, the bottom of New York’s three-tiered court system, but was overturned at the Appellate level.

Pyramid, through its local limited-liability company, Crossgates Releaseco, is planning to build a 160,000-square-foot Costco store on 16 acres at the corner of Western Avenue and Crossgates Mall Road. The site would also include an 18-pump gas station, enough parking for 770 vehicles, and eight electric-vehicle charging stations.

There are currently 14 non-operational buildings on the site, which the company expects to demolish, according to its application. The homes in that neighborhood were secretly bought up by Pyramid years ago.

The June 5 action was against the town of Guilderland, the Guilderland Zoning Board of Appeals, Crossgates Releaseco, Guilderland Devco, Grace Wu, Brian Truong, and Tsz Keung Eng.

The town is a party to the suit, it says, because the town owns roads — Lawton Terrace, Rielton Court, Tiernan Court, and Gabriel Terrace — at the site where Costco is to be built. The zoning board was responsible for review of the project; Releaseco owns or controls many, if not all, of the properties where the Costco is to be built; Devco owns a number of the parcels at the site; and Wu, Truong, and Eng also own property at the site, at 8 Rielton Court, the suit says.

In her Dec. 29 decision, Ryba summarized the history of the area in question, stating that, in 2018, the town of Guilderland rezoned Crossgates Mall and surrounding lands to create a Transit-Oriented Development district “for the purpose of promoting mixed-use residential and commercial development in close proximity to existing public transportation hubs, while still preserving the character and integrity of nearby residential neighborhoods.”

That same year, Pyramid sought site plan and subdivision approval from the Guilderland Planning Board for three different sites, which triggered “a full environmental review.”

In 2019, while the environmental review was underway, a subsidiary of Crossgates applied to the town’s zoning board for a special-use permit  “to construct and operate a 160,000 square foot Costco warehouse retail site and fueling facility with associated parking,” Ryba wrote.

On Aug. 28, 2020, the planning board issued a Final Environmental Impact Statement, determining that the three-site project, including Costco, was approvable because it “minimize[d] potential environmental impacts to the maximum extent practicable and will provide the necessary balance between the protection and the need to accommodate social and economic considerations.”

Ryba wrote “the Court’s role is not to reweigh the relevant factors and substitute its judgment for that of the agency …. But is limited to ascertaining whether the determination is arbitrary and capricious and, thus, without rational basis.”

She also wrote that “the court must give great weight and considerable deference to an agency’s interpretation of its own regulations in areas of its own expertise ….”

Ryba then runs through the 10 causes of actions the petitioners set out to claim the zoning board’s determinations should be annulled.

The first and second causes alleged certain tasks were performed not by the zoning board but instead by the town’s chief building and zoning inspector. Ryba writes that nothing in town code or General Municipal Law prohibits a town’s zoning inspector from performing administrative tasks on behalf of the zoning board.

The third cause claims the zoning board simply “rubber stamped” the planning board’s findings without taking an independent “hard look” at the environmental impact of the Costco project, which Ryba finds is “without merit.”

The remaining causes of action, the fourth through 10th, allege various errors relating to the zoning board’s determination in granting a special-use permit for the Costco project, which Ryba writes “are barred by principles of collateral estoppel and/or res judicata,” meaning that a party cannot relitigate an issue already decided against that party.

Ryba concludes, “The relief requested by petitioners is denied and the petition/complaint is dismissed in its entirety.”