Guilderland and Pyramid look for second suit, filed by Save the Pine Bush, to be dismissed 

Monday, August 2, 2021 – 19:13

Enterprise file photo — Michael Koff

The not-for-profit group Save The Pine Bush, in November 2020, celebrated when Westmere residents won a lawsuit (which was recently overturned) that stopped construction of two Pyramid projects.

GUILDERLAND — With one win in hand, the town and Pyramid are looking to run up the score, asking the judge in a second lawsuit filed over the Guilderland Planning Board’s approval of the company’s projects to follow the lead of the appeals court in the first case.  

Wasting no time, on the day the Appellate Court handed down its decision, July 8, Pyramid’s lawyers fired off a letter to the judge in the second case, making him aware of the outcome and asking him to “dismiss the petition in its entirety.”

The second suit was filed by Save the Pine Bush, a not-for-profit advocacy organization that has been fighting since 1978 to stop development in the globally rare pine barrens.

Four days later, on July 12, the attorneys for Save the Pine Bush stated the case should not be dismissed because arguments raised in the first case, filed by Westmere residents, differed from those raised by the plaintiff.  Two more letters followed — one from the town and one from Pyramid — responding to the July 12 letter from the Save the Pine Bush attorney. 

Save the Pine Bush filed its petition in November of last year based on the planning board’s August 2020 adoption of a findings statement — which is part of the State Environmental Quality Review Act process and is prepared after a final environmental impact statement has been filed but before the lead agency makes its final determination about an action or project — as well as on its October 2020 site-plan approval of the company’s apartment-and-townhome development.

The appeals court — the middle-level court in the state’s three-tiered system — on July 8 unanimously overturned a lower court’s ruling that had stopped construction of the 222-unit apartment development on Rapp Road and shot down plans for a future Costco Wholesale store on Western Avenue. 

Save the Pine Bush in its November 2020 petition was aware of the earlier decision that halted Pyramid’s projects, but brought the action “nonetheless … in the interest of preserving” its rights “in the event that” the company was able to move forward with its project, if, for example, there were a “reversal or dismissal of the prior decision ….”

The town and Pyramid responded in January, which was quickly followed by a January reply from Save The Pine Bush. More filings followed in February, including a notice that Guilderland and Pyramid would appeal the November 2020 decision from Judge Peter Lynch. And then there was near radio silence save for one June 24 letter from the court, suspending the case until the appeal was heard.  

Save The Pine Bush’s attorney in a July 12 letter argues its client’s case should not be thrown out just because Guilderland and Pyramid were successful in an earlier somewhat-similar decision since the two cases are making different arguments.

Case differences

In the first case, Save The Pine states in its July 12 letter, the plaintiff’s challenges were limited to alleged errors made by the town’s planning board (all of which the appeals court said the planning board did do). The plaintiffs in the recently overturned case, according to Save the Pine Bush, claimed the planning board:

— Failed to consider a smaller alternative to the project as well as a residential alternative;

— Failed to evaluate the project’s compatibility with zoning and community character; 

— Failed to take a “hard look” at the potential impacts the project would have on area avian populations; 

— Failed to examine the project’s visual impact on the Rapp Road Historic District in addition to not performing a viewshed analysis; and 

— Made errors with the way it declared itself the lead agency for the project. 

“In contrast,” Save The Pine Bush argues, its lawsuit against the planning board alleges it:

— Failed to take a “hard look” at the impact the project would have on “certain threatened or endangered species or species of special concern,” for example, the Karner blue butterfly, four types of bats, and a worm snake.

The planning board failed to consider the impact the project would have on two types of grass and on an ostrich fern;

— Failed to conduct a complete survey to assess for: the impact of pesticides and traffic; wetland presence; and the project’s impact on climate change and air quality;

— Failed to address the criticisms related to the previously-listed issues following their publication in the draft version of the Environmental Impact Statement; 

— “Included empirically false and unsupported assertions regarding the Albany Pine Bush ecosystem in the FEIS” [Final Environmental Impact Statement];

— “Improperly made determinations on the development projects despite not having the sufficient members required by law” and

— Failed to hold a public hearing on Oct. 28, 2020, as is required by law. 

A 97-minute public hearing for the “Possible Consideration of Site Plan Approval for a 222-unit Apartment and Townhome Development – Rapp Road Development, LLC,” was held on Oct. 28, 2020.

Approximately the first 40 minutes of the meeting could not be viewed live online — however, the meeting started about 20 minutes late due to technical difficulties, and could not be attended in-person because of the pandemic. 

Planning board meetings are also broadcast locally on Spectrum Cable. 

Anyone who wanted to comment on the project would have had no issue calling in and doing so.

Town attorney James Melita addresses this and the following claim in a July 15 letter to the judge.

“Petitioner’s remaining claims regarding the absence of one member of a seven-member Planning Board and a short delay in live streaming the start of the public hearing are specious as shown in respondents’ prior submissions to this Court,” Melita writes.

Save the Pine Bush is seeking a judgement and declaration that the August 2020 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.

Save The Pine Bush is seeking a judgement that “annuls and sets aside” the site plan for the 222-unit apartment development as well as the August 2020 Findings Statement that OK’d the project; a judgement that forbids the planning board from further reviewing plans for Site 2, the proposed Costco Wholesale Store, 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.