GUILDERLAND — A fifth lawsuit to stop Pyramid from building a Costco next to Crossgates Mall was filed on Tuesday.

This suit 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 petitioners are 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.

Those same three petitioners filed a suit on June 5 to stop the project; that case has yet to be resolved.

The Sept. 12 paperwork, 29 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 Sept. 12 action is against the Guilderland IDA; the town of Guilderland, which the suit alleges “has become Pyramid’s development partner”; Crossgates Releaseco, LLC; Guilderland Devco, LLC; and Grace Wu, Brian Truong, and Tsz Keung Eng — who own property at the site, at 8 Rielton Court.

The suit makes these four claims:

— The IDA’s determination was premature since an action in Albany County Supreme Court is pending to determine whether the proposed Costco is consistent with Guilderland’s zoning code;

— Condemnation for a members-only retail use does not meet the state constitutional and Eminent Domain Procedure Law requirements of serving a public purpose;

— The IDA failed to comply with Environmental Conservation Law and the State Environmental Quality Review Act regulations; and

— The IDA’s findings do not comply with the General Municipal Law.

The paperwork includes several pages of photographs, taken in 2011, of the homes Pyramid bought up in the Gabriel neighborhood, describing them as “well cared for” and representing “a beautiful neighborhood with paved driveways, manicured lawns, hedges, stonework, and ornamental trees ….”

It totals the 2023 assessed value of the 19 properties at $5,540,833 and states “Westmere residents still bring their children to this neighborhood for walking and bicycling.”

The roads that Pyramid is set to take total 13.75 percent of the site, the suit says, asking the value of the roadways and the associated value of the sewer and water infrastructure.

“The IDA did not say,” the suit states, adding, “Clearly, the replacement cost of 1⁄2 mile of residential roads with complete water and sewer infrastructure is in the tens of millions of dollars …

“And, what is the value of the loss of a middle class/blue collar neighborhood? No volunteers to join the PTA, fire department and auxiliary groups that make up the fabric of the community. Fewer adults and children to lead or join boy scouts, girl scouts, sports teams and school groups. The IDA did not quantify or consider that lost value which can never be replaced by a single big box retail use.”

The suit further alleges that the IDA did no analysis of the loss of affordable housing, contrary to the goals of the town’s comprehensive plan. “Instead of offering replacement residential uses,” the suit says, “Costco’s single business will eliminate what was once a beautiful, thriving middle class neighborhood.”

The condemnation offers no benefit to the public, the suit says because Crossgates Mall “offers the same products offered by Costco with the distinction that the Mall’s products are for sale to the general public.”

The suit says that the town’s Westmere Corridor Study recommended a Transit-Oriented Development overlay “to encourage mixed-use, non-auto development” and goes on to quote from the 2018 TOD law adopted by the Guilderland Town Board that was “to support and incentivize development that adequate protects nearby residential neighborhoods.”

The TOD law was to improve “the environment for non-automobile-oriented modes of transportation, reducing the number of required parking spaces, supporting mixed-use buildings and pedestrian linkages, and focusing intense development away from existing residential neighborhoods,” the law says.

“However,” the lawsuit alleges, “Pyramid did not intend to use the TOD for mixed use development. Instead, Pyramid’s 2017 site plan shows a single retail use — a Costco — to replace the entire Gabriel neighborhood.”

The suit states, “Specifically, the Guilderland Comprehensive Plan pinpoints the Costco site stating: Commercial development in neighborhoods should be limited to a corner store that is linked to a sidewalk or trail system ….”

The court papers show photographs of Gabriel neighborhood houses in disrepair, overgrown with brush.

“The reason for the neglect is now obvious,” the suit argues. “Pyramid ceased maintenance of the neighborhood in order to now argue the area is blighted to support its bid for condemnation.”

The suit then argues that Pyramid’s neglect of the properties violates town code requiring owners to maintain their property for which it should be subject to fines. “In fact,” the suit says, citing town code, “each day of Pyramid’s failure to maintain each of its 18 homes is a separate violation of law punishable by a fine of $100.”

“Petitioners noted the Gabriel neighborhood was not abandoned, the project did not conform to the TOD and was a misuse of the IDA’s powers since the project did not serve a public purpose,” the suit concludes.

“Moreover, the proposed taking of the Property was unconstitutional and Pyramid’s claim that the Gabriel neighborhood was blighted was entirely self-created. Petitioners also questioned why Pyramid/Costco could not purchase the Town Roads rather than obtaining them by eminent domain noting that Pyramid’s strategy amounted to an ‘end run’ around Town Law permissive referendum provisions.”

At the May 31 public hearing that the Guilderland IDA held on the condemnation request, Robyn Gray, who chairs the grassroots Guilderland Coalition for Responsible Growth, asked why the roads were “being taken by eminent domain rather than having the issue put before the public in a permissive referendum? Where did this idea come from? Who is responsible for pursuing eminent domain rather than a permissive referendum? Why would you not give residents the option to vote on such a project in our town?”

Donald Csaposs, the IDA’s chief executive officer, answered, “The applicant has the option to apply for the actions sought in the manner in which they did. Questioning why the applicant chose one approach versus another is not a topic that the IDA is required to consider.”

Called this week about the suit, Casposs said, “I will not comment.” He referred The Enterprise to the IDA’s lawyer, A. Joseph Scott III. Scott said he was not immediately able to comment as he needed to confer with Csaposs.

Also at the May 31 public hearing, the suit notes, the petitioners asked whether, “rather than condemning the property, Costco, a $37 billion dollar company, could purchase the Property as an alternative.”

A Pyramid representative had told the IDA on May 31 that the project would not move forward without the IDA granting its tax-exemption and road-condemnation requests. “Without this financial assistance, Pyramid would not build the project, and therefore there’d be no place for Costco to go,” said Milan Tyler, an attorney from Phillips Lytle speaking on behalf of Pyramid.

On Aug. 22, the IDA unanimously agreed to both requests.