GUILDERLAND — A group of Westmere residents and a Guilderland gas-station owner who just had a lawsuit against the town and Pyramid tossed by a federal judge, have again filed suit against the town and company over Pyramid’s Rapp Road and Western Avenue projects.

The lawsuit was filed in Albany County Supreme Court, the lowest level in the state’s three-tiered system, on Sept. 25, and was brought “as a result of a series of actions and failure to act by the Respondents relating to land use applications for three sites in the Town of Guilderland…,” according to the court filing.

The plaintiffs have also asked the court to grant an injunction preventing Pyramid from starting construction on any of its proposed projects so that the lawsuit “does not become moot.” The suit is an Article 78 proceeding, which is typically brought by citizens questioning government actions.

Pyramid’s plan includes developing three sites:

— Site 1, a 19-acre plot at Rapp and Gipp roads for 222 apartments or townhouses — with the possibility for another 90 apartments to be built on the site, which would need only site-plan approval from the town’s planning board; 

— 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 are 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.

Neither Guilderland Supervisor Peter Barber nor the Pyramid Management responded to requests for comment before press time. 

Plaintiffs’ goals

Westmere residents Lisa and Thomas Hart and Kevin and Sarah McDonald, along with gas-station owner Jonathan Kaplan are seeking, among other things:

— To have vacated the planning board’s adopted State Environmental Quality Review Act (SEQRA) review findings for the Rapp Road and Western Avenue projects.

The plaintiffs claim the Guilderland Planning Board failed to comply with the coordinated review requirements laid out by SEQRA because earlier environmental review forms identified only Site 1 for development; however, “more than a month after establishment of lead agency the Board identified that the project had more than doubled in size and added significant commercial and office uses and multi-family units proposed for Sites 2 and 3,” according to the court documents.

The plaintiffs claim that the planning board did not re-circulate an updated environmental-review form that detailed the “the environmental inventory of Sites 2 and 3” or identified the project expansion onto the two new sites.

The Harts, the McDonalds, and Kaplan claim the town violated SEQRA by segmenting its review — that is, considering portions of the project and not the whole. 

They also claim the clear-cutting was a violation of SEQRA;

— An order preventing further clear-cutting or construction activities on sites 1, 2, and 3.

The Harts, the McDonalds, and Kaplan had their clear-cutting lawsuit against the town and Pyramid dismissed in August.

The suit, filed in the Northern District of New York, alleged the clear-cutting violated the federal Clean Water and Endangered Species acts as well as the SEQRA, and further violated the plaintiffs’ due process rights and privileges guaranteed by the 14th Amendment of the United States Constitution.

The lawsuit was filed after Pyramid clear-cut more than two acres of trees on March 26 to make way for a Costco;

— Prevention of further planning and zoning board involvement in Crossgates land-use reviews because the two boards “don’t have jurisdiction to consider Pyramid’s development plans absent Town authorization regarding the use or alienation of Town-owned property…”

The plaintiffs claim that, when Pyramid’s agent for the project, James Soos, signed the applications for a subdivision and site-plan review for Site 1, and an application for a special-use permit for Site 2, he was “certifying that he had authorization from all the property owners within Sites 1 and 2,” the court documents state. 

But the plaintiffs claim this is not true because Pyramid doesn’t own or control Guilderland roads or town rights-of-way in either the Lawton or Westmere neighborhoods.

Pyramid bought up most of those properties years ago, leaving vacant houses in what some residents call a ghost neighborhood.

Because of this, the plaintiffs claim, “Pyramid was unauthorized to sign the Town’s site plan, subdivision and special use applications to develop Town property, the Town’s Planning Board and Zoning Board of Appeals do not have jurisdiction to continue to review those applications”;

— An order releasing documents requested under the state’s Freedom of Information Law.

The court documents state that on March 29 and April 2, the petitioners’ submitted FOIL requests for communications between Pyramid and the town of Guilderland that related to the proposed Costco project.

The town denied the request on April 23, the court papers state, and only the March 29 FOIL was addressed in the denial, which said that the “request did not ‘reasonably describe’ the record being requested as required by the FOIL law.”

An appeal was filed on April 27.

“However,” according to the court filing, “rather [than] responding ‘within 10 business days,’ five months have elapsed with no determination”so the appeal was, in effect, denied without due process; and 

— A redo of the SEQRA review process while re-establishing a lead agency in order “to obtain an impartial examination of the project’s environmental impacts ….”

Strange bedfellows

Guilderland and Pyramid find themselves as uncomfortable allies in this lawsuit as the company in August, through three separate Crossgates affiliates, filed a lawsuit against the town in an attempt to lop $139 million off its $282 million tax assessment — a near 50-percent drop in the assessed value.

In the tax year 2019, the seven tax parcels listed in Crossgates’ lawsuit against Guilderland collectively paid entities within the town about $7 million in property taxes. If Crossgates were to win its lawsuit, the taxes it pays to the town could be cut by about half. 

Heather Weinhold, Guilderland’s new assessor, told The Enterprise in August that, if a complainant wins a tax certiorari case, the length of time the new assessed value applies to the property depends on the court order, but she said the new value is usually frozen for three years. 

Crossgates Mall is also suing eight of its tenants for over $1 million in combined back rent.