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The Residents and the Pine Bush Win Against Pyramid Justice Prevails

by Lynne Jackson

ALBANY: In an astonishing, detailed, and carefully written decision, Judge Peter Lynch handed a victory to Westmere Terrace residents and a gas-station owner, the plaintiffs in a lawsuit filed against the Town of Guilderland Planing Board and Pyramid Management Group.

The decision makes null and void all of the approvals the Planning Board gave to Pyramid for its proposed development project known as the “Rapp Road Residential/Western Avenue Mixed Use Redevelopment Projects. This is a significant victory for the residents, for the State Environmental Quality Review Act (SEQRA) process, and for the environment. The 77-page decision by Judge Lynch is well worth reading.

The judge wrote the decision using plain English, and carefully documents every point. Since I cannot fit his entire decision in this article, I will quote directly from the decision as much as possible.

The court begins by criticizing Pyramid’s characterization of the site and how it would fit in the zoning for the Tranist Oriented District. The court said: Prior to the filing of the subject application, the Town of Guilderland enacted the Transit-Oriented Development District (hereinafter “TOD”) on June 5, 2018. The project is located within and subject to TOD. Prior to its enactment, on May 14, 2018, the Albany County

Planning Board (hereinafter ACPB) commented on TOD’s enactment, noting a representative of the project sponsor herein made the following statement, to wit: “Crossgates has bought property in the surrounding area, and is hoping to build something that is first floor commercial, upper floors residential apartments/condos; perhaps a civic component as well…” (emphasis added) That representation is most troubling, because the Costco Site plan was prepared as early as November 1, 2017 but apparently not disclosed. It is evident that Costco is not a civic component.

On scrutiny, the record herein is replete with conclusory self-serving and equally troubling representations made by the project sponsor, without the support of empirical data, which, unfortunately, the Planning Board relied on. That is not the stuff that the SEQRA hard look test is made of [emphasis added]. The issue distills to whether the Planning Board complied with its procedural and substantive SEQRA obligations? It did not, on both counts. . .

The Court said “The historical and cultural significance of RRHD [Rapp Road Historic District] cannot be overstated, and, in turn, cannot be ignored under the hard look test.” The Court also pointed out that the proposed 5-story apartments are out of character: The project impact on the RRHD is assessed in DEIS [Draft Environmental Impact Statement] Section 3.4.1.2 to 3.4.1.3.2. In wholly conclusory terms, the DEIS provides: “The projects are not out of character with the area, rather they are authorized pursuant to Town of Guilderland’s TOD district.” (emphasis added) Really? Since when do high-rise buildings comport with the character of historical one- story bungalows. [emphasis added]

The Court pointed out errors in the Draft Environmental Impact Statement (and other documents). Figure 13, submitted by the applicant, Pyramid, showed that the nearest house in the RRHD was 390 LF from the edge of the property for the proposed apartments. In addition, there is no viewshed analysis in the DEIS, FEIS or Findings Statement; the Planning Board failed to require one. The Court said: Incredibly, not only did the Planning Board fail to require a viewshed analysis, the viewshed analysis was not even mentioned in the DEIS, the FEIS, or the Findings Statement. Instead, the Board relied on the project sponsor’s self- serving and conclusory claim that the residents of the RRHD would not even be able to see any of the project buildings due to the 200’ wooded buffer at the north end of the site.

The Court continues a few pages later and quotes from the DEIS: “The five story buildings are situated in closer proximity to Rapp Road which is consistent with the TOD height design strategy for higher buildings to be situated farther away from residentially zoned properties.” And the Court responds:

The DEIS fails to account for or evaluate its strategy to move the 5-story buildings closer to the Rapp Road Historic District will enhance visual impact on the RRHD.

Importantly, the Court emphasized that “that compliance with the use and area requirements of an Ordinance [such as the TOD] is not the equivalent of taking a hard look at the project impact on the historical and cultural significance of the RRHD.”

When commenting on the DEIS, the court notes:
The DEIS does not address the comment of J. Curt Stager, Ph.D., Paul smith’s College, that “Because the site in question lies on soils that are typical of the Albany Pine Bush, it currently has potential for restoration to classic pitch pine habitat that would be lost if the site is developed as proposed. . . Once again, the project sponsor’s EIS assumes, incorrectly, that compliance with the use and area requirements of an Ordinance is the equivalent of finding no adverse impact, and no need for mitigation.

Regarding Costco and the TOD which emphasizes non-automobile forms of transit, the Court observes:

The DEIS also fails to mention, let alone account, for the fact that Costco will not improve the environment for non-automobile-oriented modes of transportation, will not reduce the number of required parking spaces, and will not focus intense development away from existing residential neighborhoods, all in contravention of TOD.

Adverse impacts were not addressed. The Court said: DEIS §4.0 identifies unavoidable adverse impacts. The DEIS does not identify any adverse impacts attributable to the 5-story building height, nor any impact from the loss of 19.21 acres of land within the Primary Protection Acres of the Pine Bush Preserve. Moreover, the DEIS does not identify or address any adverse impact attributable to the mass retail nature of the Costco project.

The Court quoted two of the scientists Save the Pine Bush asked to comment on the DEIS: The ecological report of Dr. Cynthia Lane dated April 15, 2020 was filed to comment on the DEIS and raised serious questions as to the integrity of the DEIS.

Dr. Lane commented:

“The reports prepared by B Laing Associates (2019a, 2019b, Appendix F and G in the DEIS), are incomplete and have numerous inaccuracies. This renders the DEIS incomplete and insufficient since the DEIS is built upon the findings of these reports. The key issues identified include:

  1. The methods section is incomplete and/or incorrect methods may have been employed.
  2. Incomplete vegetation survey.
  3. Traffic impacts on wildlife are insufficiently addressed and mitigated.
  4. Night lighting impacts on insects need to be examined.
  5. Heat island and cumulative effects need further study.
  6. Climate change impacts not considered.”(emphasis added)

The Court notes that the DEIS also did not address the high-rise building night lighting visual impacts on the RRHD.

The ornithological report of Naima Starkloff, Ph.D. dated May 15, 2020 was filed to comment on the DEIS, and also raised serious questions as to the integrity of the DEIS.

Of note, the report identified the impact that the high rise buildings could have on bird death due to collisions with building windows, and recommended “mitigation to limit avian mortality as a result of window collisions.”

And the Court commented on carbon intensity of fuels:

In a remarkable statement relative to the impact of the carbon intensity of fuels, the Project Sponsor claimed, “the project will encourage sustainable public transportation by improving public transit” [and]… Similarly, with respect to the Costco, patrons presently travel approximately 87 miles to Springfield, MA, the location of the nearest Costco. The project may result in a net reduction of vehicle miles travelled (VMT) and therefore a net reduction in greenhouse gas emissions.”

Clearly, the record does not sustain any claim that Costco customers will utilize public transportation, nor is there any evidence to demonstrate the subject project will dilute traffic to Springfield.

Save the Pine Bush was not a plaintiff in this lawsuit. However, many Save the Pine Bush cases were cited in the decision. The Court cited many cases and said: Without question, the Pine Bush ecosystem is unique and judicial review of project impacts have evolved over the last 40 years (see Matter of Save the Pine Bush, Inc. v. Common Council of the City of Albany, 13 N.Y. 3d 297 [2009]; Save the Pine Bush, Inc. v. Albany, 70 N.Y. 2d 193 [1987]; Save the Pine Bush, Inc. v. Common Council, 188 A. D. 2d 969 [3d Dept. 1992]; Save the Pine Bush, Inc. v. Albany,