SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ALBANY
__________________________________________________________
THOMAS HART, LISA HART, KEVIN MCDONALD, )
SARAH MCDONALD,1667 WESTERN AVENUE, LLC and )
RED-KAP SALES, INC., )
) VERIFIED PETITION
) AND DECLARATORY
Petitioners, ) JUDGMENT ACTION
-against- )
) Index No.
TOWN OF GUILDERLAND, PLANNING BOARD AND ZONING )
BOARD OF APPEALS OF GUILDERLAND, PYRAMID )
MANAGEMENT GROUP, LLC RAPP ROAD DEVELOPMENT, LLC )
and CROSSGATES RELEASECO, LLC, )
)
Respondents. )
)

INTRODUCTION

1. This action is commenced pursuant to Civil Practice Law and Rules, (CPLR), §7803,

(1), (2) and (3) and Article 30 of the CPLR 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,

New York, known as the Rapp Road Development, (project), proposed by Respondent

Pyramid Management Group, LLC and its subsidiaries (Applicant or Pyramid).

2. In addition to seeking the vacatur of the Planning Board, (Planning Board), adopting a

findings statement pursuant to the State Environmental Quality Review Act, (SEQRA),

Petitioners seek an order A) enjoining further clear cutting or construction activities on Sites 1-

3, B) enjoining review of the Applicant’s land use applications before the Planning Board and

Zoning Board of Appeals due to the failure of jurisdiction, C) declaring that the Westmere

Terrace cul-de-sac is a Town of Guilderland “highway by use,” D) ordering release of

documents requested pursuant to the Freedom of Information Law, and E) remanding the

SEQRA review and requiring re-establishment of lead agency among the involved agencies to

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obtain an impartial examination of the project’s environmental impacts and allow meaningful

analysis of reasonable alternatives as required by SEQRA.

JURISDICTION AND VENUE

3. This Court has jurisdiction pursuant to CPLR §506(b) as “[a] proceeding against a body

or officer shall be commenced in any county within the judicial district where the respondent

made the determination complained of.” Respondent Town of Guilderland Planning Board has

its offices within Albany County, New York and Petitioners own and control property within

Guilderland to be negatively impacted by Pyramid’s proposed developments. The relief sought

is authorized by CPLR §7806.

THE PARTIES

4. Respondent Town of Guilderland, (Town), is a necessary party as it owns properties

within the Applicant’s proposed 3-site development project. Specifically, Westmere Terrace

and its cul-de-sac proposed to be developed as part of the Applicant’s development of Site 1.

The Town also owns Lawton Terrace, Rielton Court, Tiernan Court and Gabriel Terrace, along

with their 60-ft. rights of way, located on the north of Western Avenue and east of Crossgates

Mall Road, (Lawton neighborhood), within the development of Sites 2 and 3. Exhibit A.1

5. The Respondent Town of Guilderland Planning Board, (Board), maintains its offices at

5209 Western Turnpike, Guilderland, New York and Rapp Road Development (project).was

the lead agency conducting the environmental impact review of the project.

6. The Respondent Town Zoning Board of Appeals is responsible for review of the

Applicant’s special use permit application for development of a Costco on Site 2.

1
All exhibits referenced are included as attachments to the Affirmation of James Bacon,
(Bacon Aff.), filed in support of the petition.
2
7. Respondent Pyramid Management Group, LLC, owns or controls the Crossgates Mall

in the Town. Pyramid’s representative James Soos signed the site plan and subdivision

applications on behalf of Pyramid for the Site 1 residential development and the special use

application for the development of Site 2. Pyramid is also the party responsible for clear

cutting 5.2 acres of woodlands on Site 2 during the SEQRA comment period on the project’s

Draft Environmental Impact Statement (DEIS).

8. Respondent Rapp Road Development, LLC, is a subsidiary of Pyramid and is seeking

land use permits from municipal Respondents.

9. Respondent Crossgates Releaseco, LLC, is a subsidiary of Pyramid and is the record

owner of the tax parcels that comprise Sites No. 1, No. 2 and No. 3, excepting Town-owned

roads within the Lawton neighborhood and the Westmere Terrace cul-de-sac which is a

“highway by use” as discussed below. Crossgates Releaseco, LLC has submitted a special use

permit application to the Town’s Zoning Board of Appeals for the development of Site No. 2.

PETITIONERS’ STANDING

10. Petitioners Lisa and Thomas Hart live in their home at 5 Westmere Terrace in the Town

of Guilderland. Mrs. Hart’s Affidavit in Support details their proximity and property interests

and is incorporated herein by reference. See also Bacon Aff. at ¶¶7, 10.

11. Petitioners Kevin and Sarah McDonald live in their home with their children at 29

Westmere Terrace at the end of Westmere Terrace just before the cul-de-sac. Mr. McDonald

chose his home’s location as the “quality of life and security this neighborhood provides was

ideal with less traffic and peaceful surroundings.” See McDonald Affidavit. His affidavit

details their proximity and property interests and is incorporated herein by reference. See also

Bacon Aff. at ¶¶11, 13.

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12. The development of Site No. 1 proposes to convert approximately 600 square feet of

the McDonald’s front lawn into part of a relocated cul-de-sac which is owned by the Town and

enjoyed by the Westmere residents as a quiet turnaround. See Affidavit of Andrew

Willingham, P.E. at ¶6 herewith.

13. A house directly across the street from the McDonalds is proposed to be demolished

providing Site 1 additional development area.

14. Further, the 5-story residential units on Site No. 1 will appear over the McDonalds’

home representing an invasion of their privacy. The McDonalds’ property and health interests

will also be impacted by the noise and dust created by construction on Site 1.

15. Mr. and Mrs. Hart will also be negatively impacted by the noise and dust created by

construction as their property is directly across the street from Site 2.

16. Both the Harts and the McDonalds have already suffered a negative impact by the

increase of noise and lights entering their homes as a result of Pyramid cutting 5.2 acres of

trees on Site 2 which had buffered the sound of traffic and lights from Western Avenue east of

Westmere Terrace. See Affidavits of Andrew Willingham, P.E. at ¶3, Hart at ¶¶24-25 and

McDonald at ¶18, herewith.

17. The Harts and McDonalds also use the Lawton neighborhood for quiet recreation for

themselves and families. However, the Lawton neighborhood and its woodlands will be

converted into impervious surfaces, parked cars and a 160,000 sq. ft. retail store with a fueling

facility forever terminating their enjoyment of that area.

18. The Harts will also be exposed to nuisance levels of noise, motor vehicle exhausts,

petroleum odors from the hundreds of vehicles proposed to use Costco’s entrance, (Site 2),

every hour with peak hours on Saturdays. Costco’s entrance is less than 250 feet from the

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Hart’s property and their second story bedroom window will be directly in the line of site of

Costco’s utility poles which range from 30 to 36 feet in height.

19. The Harts and McDonalds are within the zone of interests SEQRA is designed to

protect as their homes and property are immediately adjacent to Pyramid’s property comprising

Site 1, and the Harts are directly across the street from Site 2.

20. Petitioner 1667 Western Avenue, LLC owns 0.7 acres of property at 1667 Western

Avenue in the Town of Guilderland which is improved with a Mobil gasoline station and a

1906 sq. ft. convenience store. Petitioner’s property is bordered on three sides by Site 3, which

is comprised of primarily of properties owned or controlled by Pyramid and/or its subsidiary

Respondent Crossgates Releaseco, LLC,

21. As above, Site 3 is to be developed with 115,000 sq. ft. of commercial/retail uses,

50,000 sq. ft. of office and 48 multi-family units.

22. Petitioner Red-Kap Sales, Inc. is a gasoline distributor which operates the Mobil station

at 1667 Western Avenue in the Town of Guilderland, New York.

23. The interests of Red-Kap Sales, Inc. will be negatively impacted as it operates a Mobil

station surrounded by Site 3. The construction on Site 3 will negatively impact corporate

Petitioner’s business and their employees’ health and safety by subjecting the property and

employees to months of dust and noise from the clearing and construction of Sites 2 and 3.

24. In addition to being impacted by noise and dust from the construction of Site 3, once

operational, the proposed Costco at Site 2 will impact community character and services to the

degree where Petitioner’s Mobil station and convenience store will likely have to abandon the

site. See Affidavit of Jonathan Kaplan herewith.

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 STATEMENT OF FACTS

25. Pyramid owns and operates the Crossgates Mall comprised of 1.7 million square feet of

commercial uses on approximately 115 acres in the Town of Guilderland. See Exhibit A.2 The

Mall includes 212 stores and restaurants as well as an 18-screen IMAX theater.

26. Two residential neighborhoods exist south of the Mall on Westmere Terrace and in the

Lawton neighborhood, comprised of the Lawton woodlands, Lawton Terrace, Gabriel Terrace,

Rielton Court and Tiernan Court. Exhibit A.

27. The Westmere and Lawton neighborhoods are similar in being relatively quiet areas

with cul-de-sacs and little traffic. Westmere residents routinely walk or bring their children to

the Lawton neighborhood for recreational activities, such as bicycling. (See affidavits of Hart

and McDonald.)

28. Between Lawton Terrace and Westmere was a forested area of approximately eight (8)

acres of wildlife habitat which residents also enjoyed as open space and a noise buffer. See

Exhibit B, Pyramid’s archeological study containing pre-clear cutting photographs.

29. Erik Kiviat, Ph.D., a Professional Wetlands Scientist and co-founder of the

environmental science organization Hudsonia, Ltd., studied the flora and fauna of these

woodlands and issued a report submitted to the Board as part of the SEQRA comments on the

project’s DEIS. Exhibit C.

30. The woodlands included a variety of trees, some more than three feet in diameter, with

white pines, eastern cottonwoods and red maples dominating the woodlands along with pitch

pine, black walnut, black locust and tree-of-heaven. The forest was of “modest age” as it

contained some large, dead eastern cottonwood and red maple trees. Id. at pgs. 3-4.

2
All exhibits identified herein are incorporated by reference and attached to the “Affirmation
of James Bacon in Support” included herewith.
6
31. The woodlands also included the old road bed of Rapp Road and man-made drainage

channels that had become wetlands extending in a north south direction and west towards the

Crossgates Mall Road. Id. at pg. 4 and see Map 2 of “ditch” and photographs Nos. 18 and 19 at

Exhibit B.

32. A number of animals used or inhabited the forest such as deer and other common

mammals and birds, such as the pileated woodpecker and red-tailed hawk, among other bird

species. Exhibit C.

33. Dr. Kiviat also reported that the woodlands were:

…part of an extensive network of preserved and non-preserved greenspaces…

[and] …have great importance for biodiversity, water resources, carbon storage,
microclimate, and amenity. Clearing and development of these sites would
cause further fragmentation and degradation of habitat for many common and
uncommon wildlife and plant species.

34. Significantly, the woodlands potentially supported a number of federal and state-listed

endangered, threatened, rare and special concern species. Id.

35. Several bat species including the Eastern red bat, silver-haired bat, Indiana bat and

Northern Long-eared bat, “roost in trees during the active season… and could occur in the

study area woodlands where there are dead and live trees with suitable bark voids.” Id. at pg. 5.

36. The Indiana bat is a federally and state-listed endangered species and the Northern

Long-eared bat, (NLEB), is a federally and state-listed threatened species.

37. The Indiana bat was one of the originally listed endangered species in 1967. Two of

the seventeen Indiana bat hibernacula in New York are located in Albany County.

https://guides.nynhp.org/indiana-bat/#conservation-management.

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38. The Lawton woodlands are within the species’ nesting range since Indiana bats may fly

“hundreds of miles” to roosting areas.3

39. The NLEB was listed as “threatened” by the United States Fish and Wildlife Service

(USFWS) under the federal Endangered Species Act (ESA) in 2015. The federal listing was the

result of a dramatic population decline caused by white-nose syndrome that causes hibernating

bats to starve to death. As a result, the NLEB’s New York population has suffered a 98%

decline. See NYSDEC’s website at https://www.dec.ny.gov/animals/106713.html.

40. NYSDEC recommends avoiding NLEB potential habitat disturbance absent

exigent circumstances:

For all projects that require the removal of trees… Leave snag and cavity trees
uncut unless their removal is necessary for protection of human life and
property.

https://www.dec.ny.gov/animals/106713.html.

41. The Crossgates Mall has transformed Western Avenue into a heavily trafficked route

impacting local residents especially in the Westmere neighborhood.

42. Westmere residents have been following Pyramid’s development plans for years

concerned with the potential overdevelopment and urbanization of their neighborhood.

43. Pyramid’s expansion plans have caused Westmere residents to place heightened value

on remaining open spaces, especially the neighboring woodlands and the Lawton

neighborhood. See Hart and McDonald affidavits.

44. Largely as a result of the Mall’s impact on the community, in late 2016, Guilderland

issued the Westmere Corridor Study (WCS) which recommended a new, Transit Oriented

3
See New York State Department of Environmental Conservation (NYSDEC) website at
https://www.dec.ny.gov/animals/6972.html.
8
Development (TOD), zoning overlay, to encourage Pyramid to pursue mixed-use, non-auto

dependent development, e.g.:

A TOD strategy inherently requires a focus on improving access to non-auto

oriented modes of transportation and integrated street networks…. [and]
…reduced emphasis on the automobile through walkable, compact design. An
abundance of surface parking directly conflicts with this concept in both form
and function.

WCS at pg. 62 and pg. 64. (Available at https://www.townofguilderland.org/advanced-

search?keywords=Westmere+Corridor+Study).

45. On April 17, 2018, the Town Supervisor introduced the TOD law briefly noting that

“the Board may recall the Westmere Corridor Study had as its core recommendation the

adoption of this Local Law… which parallels the recommendation in the Westmere Corridor

Study” and scheduled a public hearing for May 1, 2018. See Minutes of April 17, 2018 at

https://www.townofguilderland.org/node/42/minutes/2018.

46. However, no meeting was held on May 1, 2018, and upon information and belief, the

Town Board did not officially notice the re-scheduling of the public hearing.

47. On May 15, 2018, the Albany County Planning Board, (ACPB), reviewed the proposed

TOD stating that “the Town of Guilderland aims to encourage more compact development and

mixed uses in this zone” by making non-conforming the single family homes in the Lawton

neighborhood. Exhibit D.

48. At that meeting, Pyramid promised to use the TOD to create a mixed-use community:

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, maybe government
offices, a Police station, and medical offices all of which will help support the
overall health of Crossgates.

Exhibit D.

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49. As discussed below, this statement was inaccurate as Pyramid had already completed a

site plan showing a single retail use – a Costco - to replace the entire Lawton neighborhood.

50. On June 5, 2018, the Town Board held a public hearing on the TOD overlay - Local

Law No. Although neither the minutes or the video tape indicate the public hearing was

properly noticed, the Town Board adopted the TOD law stating support had been received

from various agencies including the Albany County Planning Board. See minutes at Exhibit E

and video at view.earthchannel.com/PlayerController.aspx?&PGD=guilderlandny&eID=35.

51. No residents were notified of the TOD public hearing held on June 5, 2018. See

Affidavits of McDonald at ¶11 and Hart at ¶3.

52. The TOD law states its purpose is:

…to support and incentivize development that adequately protects nearby

residential neighborhoods and utilizes resources within and near the TOD's
boundary, including regional shopping, entertainment, and employment centers,
a robust transit service with high ridership and proposed enhancements, direct
vehicle access to the interstate highway system, and a nearby local business
community. The TOD District encourages more compact development, traffic-
calming measures, better access management, improving 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.

Town Code § 280-18.1.

53. While the Town was working on the WCS and TOD, Pyramid was purchasing, or had

completed purchasing, properties in the Lawton neighborhood and around the Crossgates Mall

to consolidate tax parcels and build large-scale single use development to support the Mall.

54. Pyramid would purchase properties surrounding the Mall through subsidiaries and

require non-disclosure agreements to limit public knowledge and scrutiny of its development

plans. See Affidavits of McDonald at ¶¶6-8 and Hart at ¶2.

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55. The Town facilitated Pyramid’s plans by rezoning Pyramid’s properties and

transferring property to Pyramid.

56. An example of the Pyramid/Town cooperation involves Pyramid’s hotel on Western

Avenue. At the end of 2016, Pyramid publicly stated it had “no plans to build a hotel.” (See

July 18, 2019, Altamont Enterprise article included with the Hart Affidavit.)

57. However, Pyramid presented plans for a 5-story 192-unit hotel with 192 parking spaces

just three months later. Id.

58. By June 2017, the Town had rezoned Pyramid’s property to allow the hotel, granted

subdivision and site plan approval and abandoned a Town road, (Lehner Road), to convey to

Pyramid.

59. Similarly, on May15, 2018 while Pyramid publicly promised the ACPB development

consistent with the TOD’s mixed uses, five months earlier it had completed a plan to

consolidate multiple tax parcels to develop Site 2, with a Costco, that would encompass almost

all of the Lawton neighborhood and its adjacent woodlands. Exhibit F, January 2, 2018

“Exploration Location Plan” referencing “Concept Plan SK-2 Revised” dated November 1,

2017. (See also Exhibit G at pg 3.)

60. Pyramid also conducted 33 soil borings and 13 soil test pits within the Lawton

neighborhood from January 10, 2018 through January 18, 2018. Exhibit F.

61. Pyramid’s map shows ten of those soil boring and test pits to be located in the Lawton

neighborhood, in the Lawton Terrace, Tiernan Court and Rielton Court rights of way. Exhibit F

compared with Exhibit A.

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62. Town authorization is required before a private entity works in any Town right of way.

(See Town Board authorization allowing work in the Lawton/Tiernan right of way at Exhibit

H, at page 5 of the minutes [numbered as page 203].)

63. However, Pyramid never obtained Town authorization for its soil borings and test pits

in the Town Roads and rights of ways in the Lawton neighborhood.

64. Through 2018, Pyramid completed a number of plans for the Costco:

 Land Survey for COSTCO, Inc; Albany Crossgates Mall, (1/5/18);

 Soil Boring plans, (1/2/18);
 Soil Profile Map, (2/9/18);
 Subsurface Profile Maps, (2/12/18);
 Exploration Logs, (1/12/18);
 Laboratory Analysis, (2/15/18);
 National Inventory Wetland Map, (7/16/18);
 An Environmental Resource Map, (8/3/18);
 Erosion and Sediment Control Plans, (11/26/18, 7 of 20), and;
 an Erosion Control Final Phase plan, (11/26/18, 10 of 20).

See “Stormwater Management Plan Site 2 – Costco” on the Town’s website at

https://www.townofguilderland.org/planning-board/pages/environmental-impact-statement-

rapp-road-residentialwestern-avenue-mixed-use.

65. However, Pyramid did not officially submit the Costco plans to the Town and told the

Westmere neighbors that it had “no other plans” to develop any other site except Site No. 1.

See Affidavit of McDonald at ¶17.

66. In November 2018, Pyramid filed land use plans for Site 1 only, telling the public that

Site 2 “was not a point of focus,” though as above, Pyramid had completed numerous plans

and studies for a Costco at Site 2. Compare Hart Affidavit, Attachment 1 statements of

Pyramid and Exhibit F, Pyramid’s Costco plans dated 2017.

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67. On November 15, 2018, on behalf of “Pyramid Management Group,” James Soos

signed the application for subdivision approval for Site 1 to consolidate five tax lots to one

parcel for the “Rapp Road Residential Project” consisting primarily of “222 units across five

buildings on a +/-19.68 acre site.” Exhibit I.

68. Four days later, again on behalf of “Pyramid Management Group,” James Soos signed

the site plan application to develop Site 1. Exhibit J.

69. By signing these applications, Mr. Soos certified that he had received authorizations to

proceed from all the property owners within Site 1. Id.

70. However, he had not. Town authorization did not exist allowing Pyramid to propose to

develop the Town’s cul-de-sac at the end of Westmere Terrace for Site No. 1.

71. Pyramid submitted Part 1 of the model SEQRA, Environmental Assessment Form,

(EAF), dated November 19, 2018, affirming the “Project is residential.” Exhibit K at D.2(k).

72. The EAF does not identify in its “Government Approvals” section that the development

of Site 1 was contingent upon the Town Board approving and conveying the Westmere Terrace

cul-de-sac to Pyramid. Id.

73. On or about February 12, 2019, the Town Planner circulated the intent to be lead

agency advising the Board intended to conduct a coordinated review of the development of

Site 1 west of the Crossgate’s Mall as a SEQRA Type 1 action.

74. NYSDEC responded citing concerns regarding impacts to endangered and special

concern species. Exhibit L.

75. Then, according to Pyramid representative James Soos:

In approximately May of 2019, when the RRD [Site No. 1] application was
nearing completion after seven months of exhaustive review, the Pyramid
Defendants advised the Town that they intended, at some point in the future, to
file an application for a Costco retail facility on what was to become Site 2.

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Exhibit M at ¶18.

76. As above, Pyramid’s plans to develop a Costco at Site No. 2 were in place in

November, 2017, yet Pyramid intentionally delayed informing the Town of this proposal until

May of 2019.

77. The Town then concealed this information from the public and did not advise any other

agency involved in the SEQRA process that a Costco was proposed for Site 2.

78. On May 13, 2019, the Albany County Planning Board, reviewing only the proposed

development of Site 1, issued an opinion that the large-scale single-use development was

incompatible with the TOD zone’s mixed-use purposes. Exhibit N.

79. On July 10, 2019, the Guilderland Planning Board agenda advised of a “Project update

for a 222 unit apartment/townhome development on 19.68 acres in a Transit Oriented

Development (TOD) District.” Exhibit O.

80. The Planning Board’s July 10, 2019, agenda did not indicate lead agency would be

established and no minutes are available on the Town’s website. However, review of the video

shows the Board did vote to establish itself as lead agency on that date.

81. At the meeting of July 10, 2019, neither the Applicant nor the Planning Board disclosed

that a Costco was planned for Site 2.

82. Thus, while Mr. Soos claimed the Planning Board had undertaken a “seven months of

exhaustive review,” the fact is that after the initial December 2018 meeting, no Planning

Board workshops were held and when the Planning Board met on July 10th the agenda did not

disclose that the Board would establish itself as lead agency and concealed the fact that a

Costco was planned for Site 2.

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83. Nine days later, the Applicant re-signed Parts 1 and 2 of the EAF, (July 19, 2019),

continuing to describe the project as confined to Site 1 and limited to residential use - “a 222

unit apartment/townhome development on 19.68 acres.” Exhibit P.

84. Pyramid’s EAF also did not identify the ZBA as a newly involved agency due to

Costco requiring a special use permit from the ZBA. Id.

85. On August 14, 2019, the Planning Board Chairman opened discussion of the project

stating:

We’re just considering issuance of a positive declaration for the 222 unit
apartments on 19.6 acres in the Transit Oriented Development district and then
just a discussion only on the scoping process…

Available at: view.earthchannel.com/PlayerController.aspx?&PGD=guilderlandny&eID=103.

86. The Board then voted to adopt a positive declaration, yet again, no discussion indicated

the project had expanded to include a Costco at Site 2 and development of Site 3. Id.

87. Similarly, the Planning Board’s minutes of August 14, 2019 described the project as

limited only to “a 222 unit apartment/townhome development on 19.68 acres.” Exhibit Q.

88. The Planning Board advised NYSDEC of the project which published notice of the

Board’s establishment of lead agency in its Environmental Notice Bulletin, (ENB), citing the

availability of a draft scope and likewise describing the project as confined to a single site and

limited primarily to residential use. Exhibit R.

89. However, when the Town later published its positive declaration, it identified for the

first time that the project had expanded to include the development of Sites 2 and 3:

A second development area (Site 2 on the attached plan), is a proposed retail

site. Site 2 is located on the corner of Crossgates Mall Road and Western
Avenue and proposes ±160,000 square foot of retail and a fueling facility on ±
15 acres. A third development area (Site 3 on the attached plan) is located on
additional TOD acreage between Site 2 and the hotel site.

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Exhibit S.

90. The Board then issued a scoping document indicating the project had more than

doubled from 19.63 acres to a total of 46 acres, added 275,000 sq. ft. of commercial and retail

uses, 50,000 sq. ft. of office and 48 multi-family units on Sites 2 and 3. Exhibit T.

91. Significantly, the scoping document did not disclose Costco as the tenant or that the

development of Sites 2 and 3 would require alienation of all or part of Lawton Terrace, Tiernan

Court, Rielton Court and Gabriel Terrace in the Lawton neighborhood.

92. On September 25, 2019, the Town Planner advised that Sites No. 2 and 3 had been

assigned “a certain number of square feet… for potential buildout” of those parcels. Neither the

Planning Board nor the Town Planner disclosed that they had known for months that a Costco

was proposed for Site 2. 9/25/18, Planning Board meeting video at approximately 37 minutes

and 40 seconds.

93. The Board posted the “EIS Concept Plan,” on its website finally alerting the public to

the development of Sites 2 and 3. Exhibit U, “EIS Concept Plan.”

94. However, the Concept Plan did not name the four Town roads in the Lawton

neighborhood required to be alienated for Pyramid’s development of Sites 2 and 3. Id.

95. Moreover, concerning the unauthorized use of Town property, the Applicant’s later

filings showed that in October, 2019, Pyramid had conducted an archeological survey of the

Lawton neighborhood and adjoining lands which included 68 shovel test pits. Exhibit B.

96. Shovel test pits 2 and 13 appear to be dug on the Rielton Court right of way which

extends east from the end of the pavement where Rielton Court dead ends. Id.

97. Again, there is no Town authorization on record allowing Pyramid or its affiliates to

conduct testing on Town property,

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98. The Planning Board accepted the final scope for the DEIS on October 23, 2019.

99. At that meeting, the Town Planner submitted a memorandum identifying the project’s

entire environmental review could be completed as soon as January, 2020. Exhibit V.

100. After close of the scoping comment period, (on November 15, 2019), Pyramid finally

disclosed its plans for a Costco at Site 2, by filing a special use permit application requiring

approval from the Town’s Zoning Board of Appeals thus making the ZBA an involved agency,

a fact that was not identified by in the EAF. Exhibit W.

101. Pyramid identified Site 2 as being “+/-16.5 acres,” and James Soos, again signed the

owner’s certification, as he had for the Site 1 subdivision and site plan applications. Id.

102. Mr. Soos identified himself as representing Crossgates Releaseco, LLC, and claimed

authorization from all property owners “to make this application.” Id.

103. Attached to the application was a list of 26 tax parcels stated to be owned by

Respondent Crossgates Releaseco, LLC. Id.

104. Absent from Mr. Soos’ list were the Lawton neighborhood Town roads. Id.

105. Together, these Town roads and rights of way comprise 13.75%, (2.27 acres), of the

16.5 acres for Pyramid’s Site No. 2. See Bacon Aff. at ¶14 citing Exhibit A.

106. The 2019 Costco site plan mirrored the design and layout Pyramid had drafted in

November, 2017. Exhibit X.

107. However, Pyramid did not file a subdivision or site plan application for the

development of Site 2 – as it had for Site 1 – even though Pyramid proposed to consolidate the

Lawton neighborhood tax lots and Town roads into a single tax lot for Costco.

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108. On December 23, 2019, Petitioners’ counsel requested that the DEIS include a socio-

economic analysis to consider business displacement like the one Costco completed for its

project in Yorktown, New York. Exhibit Y.

109. Petitioners’ counsel advised that “Costco reported it expected to sell 7-10 million

gallons of gasoline a year in the downstate administrative proceedings” thereby generating

significant traffic and requested that the Applicant “identify the frequency and size of fuel

truck deliveries in order to properly assess traffic and market impacts.” Id.

110. Counsel attached supporting evidence including a traffic analysis of a Costco proposed

in Patterson, New York by Michael Maris and Associates, (Exhibit Y-1), and a retail market

analysis by Ferrandino & Associates, (F&A), done on behalf of Costco which had been

proposed in the downstate proceedings. Exhibit Y-2.

111. On December 24, 2019, the Town’s website announced the Town had received a DEIS

from the Applicant.

112. Petitioners’ counsel filed a request for the DEIS on January 10, 2020, pursuant to the

New York’s Freedom of Information Law, (FOIL). Public Officers Law Article 6. Exhibit Z.

113. The Town denied the FOIL request on January 17, 2020, claiming the DEIS was “intra-

agency documentation.” Exhibit AA.

114. Petitioners’ attorney appealed the denial and the Town posted the DEIS on its website

on January 30, 2020.

115. The Town determined the DEIS complete on February 7, 2020 and set a public hearing

for March 11, 2020.

116. Due to the Corona virus, the public hearing was rescheduled for May 13, 2020, with a

written comment period extended until May 26, 2020.

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117. Many Westmere residents, including the Harts and McDonalds, submitted comments

expressing concern as to the scale of Pyramid’s development and impacts upon the

environment, including impacts upon wildlife in the Lawton woodlands. See DEIS comments

included with Affidavit of Lisa Hart.

118. Petitioners hired F&A to examine the DEIS since F&A had conducted detailed analysis

of socio-economic impacts on behalf of Costco proposed in Yorktown, New York.

119. Petitioners’ counsel submitted DEIS comments addressing the fact that the DEIS did

not include reference or include information regarding counsel’s December 23, 2018 and its

attachments and identified the project’s material conflict with the TOD, traffic generation and

other inadequately examined environmental impacts. Exhibit BB.

120. Petitioners’ comments also included F&A’s DEIS comments indicating the DEIS did

not include socio-economic impact studies and failed to address significant impacts to

community character, community services and traffic. Exhibit CC.

121. James Calvin, chief executive officer of the New York Association of Convenience

Stores, a private, not-for-profit trade organization representing thousands of neighborhood

convenience stores and mini-marts statewide, expressed concerns as to the project’s

conformance with the Town’s zoning code and impacts on neighboring gasoline retailers.

Exhibit DD.

122. Wetland concerns expressed by Dr. Kiviat on behalf of the Save the Pine Bush

organization resulted in the Town releasing Pyramid’s wetland report that had not been

included with the DEIS on the Town’s website. Exhibit EE.

123. The wetland report showed federal jurisdictional wetlands confined to the east side of

Old Rapp Road. Exhibit FF.

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124. However, Pyramid’s “existing conditions” site plan showed drainage easements and an

area of approximately 3200 feet west of the old road bed as sharing the same topographic

characteristics as the jurisdictional wetland. Exhibit FF, Site Plan 3 of 20.

125. Pyramid’s archeological report also appeared to indicate wetlands west of the old road

bed. Specifically, Map 2 indicated the federal jurisdictional area was part of the same drainage

channel. Exhibit B.

126. And, the archeological report’s photograph No. 18 showed the drainage area extending

west from the old road bed. Exhibit B.

127. Dr. Kiviat reported that “the western side of the south-north ditch may be part of this

wetland but was not included in the delineation” and recommended further investigation of

potential wetlands to the west of the old road bed. Exhibit C at pgs. 4 and 9.

128. Dr. Kiviat also identified the Indiana Bat and NLEB were species that could inhabit

“suitable bark voids” in the Lawton woodlands.

129. And, Dr. Kiviat noted no survey had been conducted for rare plants and that

removal of woodland habitat was not adequately assessed in the DEIS. Id. pgs. 5-6.

130. However, before the close of the DEIS comment period, Pyramid clear cut 5.2 acres of

the Lawton woodlands.

131. In a matter brought in the Northern District of New York, Pyramid indicated that it had

advised the Town Planner, Kenneth Kolvachik, that it intended to clear cut Site No. 2. Then,

“at the Town’s request,” Pyramid prepared a tree cutting study defending the proposed clear

cutting. Declaration of James Soos, Exhibit M.

132. Although Respondents did not identify precise dates, prior to the clear cutting, Pyramid

submitted the study to Mr. Kovalchik who reviewed the study, reviewed the Town Code and

20
spoke with the Town’s Stormwater Officer. Mr. Kovalchik determined the clear cutting would

comply with the Town Code. See Declaration of Kovalchik at ¶45-47, 49, Exhibit HH.

133. There is no evidence that the Planning Board authorized the clear cutting.

134. Instead, Mr. Kovalchik individually authorized the March 26, 2020, clear cutting on

Site 2.

135. Pyramid’s Declaration of Michael Bontje included an aerial photograph of Site 2

showing the clear cutting. Id. at Exhibit II, Figure 1.

136. Analysis of this photograph indicates that 5.2 acres of woodlands were cut. See

herewith Affidavit of Willingham at ¶3.

137. Indeed, at approximately 6:00 a.m., the morning of March 26, 2020, Mr. Hart was on

his way to work and noticed unusual activity on Lawton Terrace. He stopped his truck and took

several photographs though he was not certain what was planned. He notified his wife who at

7:00 a.m. heard the sound of chainsaws as trees were felled. (See Hart Affidavit at ¶¶20-21.)

138. More than three hours after the tree cutting began, the Town posted the following

notice on its website:

Tree Cutting to Begin on the Proposed Costco Site

Posted on: March 26, 2020 - 10:17am

The Town has been notified by the Pyramid Corporation that they intend to start
tree cutting on March 26 on the site proposed for Costco. Trees will be cut with
the stumps to remain in place and no ground disturbance subject to stormwater
and erosion control management requirements will take place. The purpose of
tree cutting at this time is to comply with United States Fish and Wildlife
Service (USFWS) and New York State Department of Environmental
Conservation (NYSDEC) regulations related to the Northern Long Eared Bat
(NLEB), which is considered a threatened species. Tree cutting is restricted
from April 1 to October 31 without complying with a number of additional
regulations or obtaining a permit from NYSDEC. During this period of time,
NLEB are active and are within the forested landscape.

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 No land use approvals have been granted for Costco by the Town of
Guilderland. Trees are being cut to avoid potential impacts to the NLEB if the
project is approved and site preparation for construction would take place after
April 1 and prior to October 31.

139. The five acres clear cut included mature trees up to eighty years in age. See Exhibit C,

photographs therein and see Affidavit of Dr. Kiviat herewith at ¶10 and photographs therein.

140. The action came as a shock to the residents who knew that the project had not been

approved. See Hart Affidavit ¶20.

141. Pyramid was well aware that it was removing woodlands at Site No. 2 that could

support summer roosting for the NLEB and the Indiana bat:

Vacant residential structures exist on site and a number of large trees such as
cottonwood and red maple, including some older, broken individuals have the
potential to provide summer roosting habitat for this species.

See Exhibit JJ, B. Laing Report at Appendix G, pgs. 20-21, identifying that the NLEB has “a

biology and life history very similar to the Indiana bat.”

142. Although the Town issued a cease and desist order, both the Town Supervisor and the

Town Planner asserted the tree cutting was authorized.

143. Dr. Kiviat inspected the clear cutting finding many mature trees had been cut down,

some with diameters of two feet or more. See Affidavit of Dr. Kiviat ¶¶10-13.

144. Petitioners commenced a proceeding in the Northern District of New York alleging the

clear cutting was improper. The Court determined the matter was not ripe but noted:

While the conduct of the Municipal Defendants does not rise to the level of
shocking the conscience, the Court cannot say the same for the conduct of the
Corporate Defendants. As the Court has explained, and the parties have noted,
there are no claims against the Corporate Defendants. However, the Court
would be remiss if it did not express its concern regarding the Corporate
Defendants' conduct. It is undisputed that the sites at issue were part of an
ongoing environmental review process. Yet, the Corporate Defendants
unilaterally decided to fell trees on multiple acres of land. At a pre-motion
22
 conference, the Court specifically asked "[w]hy did your client remove the trees
while the process is still going on and [w]hen no final determination has been
made?" See Dkt. No. 41 at 9. Their response was that they did so to "protect any
potential habitat or an endangered or threatened species." See id. at 10. Counsel
for the Corporate Defendants stated the following: "The New York State
Department of Environmental Conservation regulations, when there's a bat
habitat, protected bat habitat around, provide that any cutting of trees should be
done before April 1 so that there is no possibility that the habitat could be
impacted. There's seven miles away, according to DEC, there's a protected bat
habitat which is outside of the DEC's protected area where they would actually
regulate, and the DEC confirmed this after the tree cutting was done." Id. at 9
(emphasis added). The Court finds it hard to credit the felling of the trees to the
Corporate Defendants' benevolence. Instead, it seems clear that the Corporate
Defendants, in an effort to prevent any delay in their development of the
property, cut the trees to prevent any potentially endangered or threatened
species from making a home on the property. Nevertheless, as there are no
claims against the Corporate Defendants, they cannot be required to answer for
this distressing conduct in this action.

Hart v. Town of Guilderland, No. 1:20-CV-475 (MAD/DJS), 2020 U.S. Dist. LEXIS

139496 (N.D.N.Y. Aug. 5, 2020) at footnote 9.

145. The Board accepted a Final Environmental Impact Statement, (FEIS), on July 29, 2020.

146. Petitioners’ counsel submitted comments on the FEIS describing the inadequacies of

the SEQRA review which would require a SEIS and re-establishment of lead agency to cure

the SEQRA deficiencies while again identifying the project’s incompatibility with the TOD

zone and the Town’s Zoning Code among other defects. Exhibit KK.

147. Petitioners’ FEIS comments requested that the Planning Board delay acceptance of the

SEQRA findings pending resolution of an application for an interpretation filed with the

Guilderland Zoning Board of Appeals regarding the project’s conformance with the zoning

code. Exhibit LL.

148. In fact, the Albany County Planning Board reviewed Pyramid’s proposed development

on Site No. 2 issuing a “disapproval” due to Costco’s “significant negative intermunicipal and

county-wide impact” inconsistent with the TOD’s purposes:

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 Granting a Special Use Permit to the Costco proposal as is, would be out of
compliance with the community and professional input in a pre-existing study
produced by the Town of Guilderland. To maximize governmental efficiency
and community character development should try to adhere to existing
comprehensive plans and studies.

Exhibit MM.

149. FEIS comments were also submitted by Pace Law School environmental clinic which

identified a number of outstanding issues, including the presence of certain Myotis bat species,

some of which may include threatened species, inhabiting the Lawton neighborhood. Exhibit

NN.

150. Nonetheless, the Planning Board issued SEQRA findings on August 28, 2020. Exhibit

OO.

151. Petitioners bring this action to annul Respondents’ adoption of SEQRA findings as

arbitrary, capricious and an abuse of discretion due to Respondents’ unalterably closed mind,

predetermination of the outcome of the project’s administrative review, proceeding in excess of

jurisdiction, failure to adequately consider the project’s significant environmental impacts and

assess reasonable alternatives as set forth in the following causes of action.

FIRST CAUSE OF ACTION

Pyramid’s clear cutting of 5.2 acres on Site No. 2 violated

the Environmental Conservation Law

152. The allegations of the preceding paragraphs are incorporated here by reference.

153. Stormwater discharges from construction activities are unlawful unless they are

authorized by a National Pollutant Discharge Elimination System (NPDES) permit or by a state

permit program.

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154. New York administers the federally approved State Pollutant Discharge Elimination

System (SPDES) program with permits issued in accordance with the New York State

Environmental Conservation Law (ECL) Article 17, Titles 7, 8 and Article 70.

155. “An owner or operator of a construction activity that is eligible for coverage under this

permit must obtain coverage prior to the commencement of construction activity.” SPDES

General Permit for Stormwater Discharges from Construction Activity, Permit No. GP- 0-20-

001, ECL Article 17, Titles 7, I and Article 70; Effective Date: January 29, 2020.

156. The Town and Pyramid violated the ECL by sanctioning, and accomplishing, the clear

cutting of 5.2 acres of trees west of Lawton Terrace in the Town of Guilderland, New York on

March 26, 2020.

157. Evidence that more than one acre was disturbed is demonstrated by Dr. Kiviat reporting

that “tracked heavy equipment creat[ed] deep ruts in the sandy soil. This will cause eroded

sediment to be discharged into the on-site wetlands…” Affidavit of Dr. Kiviat at ¶16. The

“tracked heavy equipment” with tractor-treads is shown on the clear cut site in the photograph

included with the Affidavit of Lisa Hart at ¶21.

158. In their defense in federal court, Pyramid included a drone photograph showing tractor

treads in the site’s sandy soils over most of the clear cut areas, including within a few feet of

the wetlands, (near the white shed off of Lawton Terrace), and to the left of the red arrow

pointing north among the pine trees. Exhibit II.

159. While defendants conducted a test to see whether stormwater laden sediment had

reached the wetlands, it is inevitable that the next heavy rainfall will cause sediment to reach

the wetlands given the sandy soils and widespread soil disturbance.

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160. And, a permit is required before disturbance occurs. “New York's SPDES permit

program is preventative and does not require an actual discharge before a permit is required.”

“Vadney, Joseph and Anne Marie - Decision and Order, September 2, 2015.” NYSDEC

Administrative Ruling available at https://www.dec.ny.gov/hearings/103266.html.

161. Further, New York State law requires:

Where construction activities or discharges from construction activities may

adversely affect a state endangered or threatened species, no activity may occur
without a permit issued pursuant to 6 NYCRR Part 182; “Endangered and
Threatened Species of Fish and Wildlife; Species of Special Concern; Incidental
Take Permits.

See SPDES General Permit conditions at F(4).

162. As recognized by the Federal Court, Respondents knew Site 2 contained potential

habitat for the NLEB and the Indiana Bat and cut down the trees specifically to prevent those

species from using Site 2 for nesting and roosting prior to the issuance of permits and before

the ACOE and the USFWS could review potential impacts upon threatened and endangered

species.

163. Moreover, the ACOE’s Nationwide Permit General Condition No. 18 specifically states

that no activity may be authorized if it will directly or indirectly jeopardize a threatened or

endangered species.

164. Finally, even if Pyramid’s construction activities could not affect endangered or

threatened species, “[a]n owner or operator shall not commence construction activity until their

authorization to discharge under this permit goes into effect.” Id. at Part II; Permit Coverage,

C(1).

165. Thus, Petitioners’ seek a declaration that the Applicant violated New York State

Environmental Conservation Law (ECL) Article 17, Titles 7, 8 and Article 70, and that by

26
allowing such violations, the Town Planning Board pre-determined and ignored significant

aspects of the project’s environmental impacts requiring remand of the SEQRA findings.

SECOND CAUSE OF ACTION

The Guilderland Planning Board’s procedural SEQRA violations

166. The allegations of the preceding paragraphs are incorporated here by reference.

i. Failure to comply with coordinated review requirements

167. SEQRA requires circulation of environmental impact information to all other agencies

with permitting authority, before the establishment of lead agency. 6 NYCRR 617.6(b)(3)(i).

168. The November 19, 2018, EAF identified the project as only affecting Site No. 1 and

listed it as a Type 1 action requiring coordinated review. Id.

169. After its initial meeting on the project on December 12, 2018, the Board circulated an

EAF for the project on Site No. 1 in February 2019.

170. The Board received comments from other involved agencies and voted to establish

itself as lead agency on July 10, 2019.

171. Until August 14, 2019, the project was described as residential limited to Site 1,

although the Applicant had completed a site plan for a Costco at Site 2 in November 2017, and

continued to perform field testing and soil borings and stormwater plans through 2018.

172. However, both EAFs from November 19, 2018 and July 19, 2019 identify development

only on Site 1.

173. While Pyramid disclosed its Costco plans privately to the Town in May 2019, no

involved or interested agencies were made aware of the project’s expansion to new sites.

174. In fact, on August 14, 2019, relying upon the Town’s description of the project,

NYSDEC published an ENB notice identifying the project as residential use limited to Site 1.

27
175. Thus, 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.

176. The Board did not rescind its lead agency status nor re-circulate a revised EAF

detailing the environmental inventory of Sites 2 and 3 or identifying the project’s expansion to

Sites 2 and 3.

177. Pyramid further delayed submitting a special use permit application for Site 2 until

November 2019, to the Zoning Board of Appeals, (ZBA), making the ZBA a newly involved

agency that was not identified in Part 1 and 2 of the EAFs re-signed by Pyramid in July 2019.

178. The Board’s incomplete EAFs deprived other involved agencies of complete project

information prior to the establishment of lead agency and in so doing violated 6 NYCRR

617.6(b)(3)(i).

ii. Engaging in improper segmentation

179. Considering only a part or segment of an action is contrary to SEQRA which

recognizes that “[a]ctions commonly consist of a set of activities or steps.” 6 N.Y.C.R.R.

§617.3(g). Therefore, “[c]onsidering only a part or segment of an action is contrary to the

intent of SEQR.” 6 N.Y.C.R.R. §617.3(g)(1).

180. SEQRA generally prohibits “segmentation,” which is defined as “the division of the

environmental review of an action such that various activities or stages are addressed under

this Part as though they were independent, unrelated activities, needing individual

determinations of significance.” 6 N.Y.C.R.R. §617.2(ag). See also DEC, The SEQR

Handbook at 21-22; Taxpayers Opposed to Floodmart, Ltd., v. City of Hornell Industrial

Development Agency, 212 AD2d 958, (4th Dep’t 1995), stay vac’d 85 N.Y.2d 961, 628

28
N.Y.S.2d 48 (1995), mot. den’d 85 NY2d 812 (1995); Kirk-Astor Drive Neighborhood Assoc.

v. Town of Pittsford, 106 AD2d 868 (4th Dep’t 1984), app. dis’d 66 NY2d 896 (1985).

a. Westmere Terrace cul-de-sac

181. The Town’s Westmere Terrace cul-de-sac covers approximately 0.5 acres of Site 1.

182. The cul-de-sac is a “highway by use” as it has been used for a period of more than 10

years as a cul-de-sac and therefore is subject to New York’s alienation procedures:

All lands which shall have been used by the public as a highway for the period
of ten years or more, shall be a highway, with the same force and effect as if it
had been duly laid out and recorded as a highway...

New York Highway Law §189.

183. The Town’s conveyance of the cul-de-sac to the Applicant is a pre-requisite for the

development of Site 1.

184. The Town Board’s required approval of this property transfer is not disclosed in the

project’s EAF, positive declaration or scoping document.

b. Lawton Terrace, Tiernan Court, Rielton Court and Gabriel Terrace

185. In August 2019, the project expanded to include developing Sites 2 and 3 comprising

much of the property in the Lawton neighborhood.

186. However, the Town owns the roads of Lawton Terrace, Tiernan Court, Rielton Court

and Gabriel Terrace and rights of way which total approximately 2.7 acres on Sites 2 and 3,

(13.75%, [2.27 acres], of the total acreage of Site No. 2.)

187. The conveyance of Town property in the Lawton neighborhood is a pre-requisite for the

development of Sites 2 and 3.

188. The Town Board’s required approval of this property transfer and the fact that

alienation of Town properties in the Westmere and Lawton neighborhoods is subject to a

29
permissive referendum pursuant to Town Law §64(2) is not disclosed in the project’s EAF,

positive declaration or scoping document.

189. Because the conveyance of Town property is part of the “action” as defined by

SEQRA, environmental impact issues, such as whether the conveyance conflicts with the

Town’s land use plans, must be identified and considered as part of the project’s SEQRA

review and not deferred until a later date.

iii. Clear cutting 5.2 acres of Site No. 2

190. SEQRA requires that “[a] project sponsor may not commence any physical alteration

related to an action until the provisions of SEQR have been complied with” i.e., the lead

agency has issued a Negative Declaration or Findings. 6 NYCRR 617.3(a).

191. However, on March 26, 2020, Town Planner Kenneth Kovalchik allowed Pyramid to

clear cut more than 5 acres of forest on Site 2.

192. Respondents’ procedural SEQRA violations demonstrate an unalterably closed mind

requiring remand and re-establishment of lead agency status in order that reasonable

alternatives are considered and significant environmental impacts are mitigated to the

maximum extent practicable.

THIRD CAUSE OF ACTION

The Westmere Terrace cul-de-sac is a highway by use

193. The allegations of the preceding paragraphs are incorporated here by reference.

194. As abiove, the Westmere Terrace cul-de-sac covers approximately 0.5 acres of Site 1

and has been used by the public and maintained by the Town of Guilderland for a period of

more than ten (10) years.

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195. Therefore, pursuant to New York Highway Law §189, the cul-de-sac is a “highway by

use” and therefore subject to New York’s alienation procedures and a permissive referendum

as set forth in New York State Town Law §64(2).

196. Pursuant to CPLR Article 30, Petitioners request judgment that the cul-de-sac is a

highway by use contrary to Pyramid’s claim of sole ownership and control over the cul-de-sac.

FOURTH CAUSE OF ACTION

The Guilderland Planning Board’s substantive SEQRA violations

197. The allegations of the preceding paragraphs are incorporated here by reference.

A. Failure to discuss the Town’s property ownership of Town Roads

198. Contrary to SEQRA and Town Law 64(2), Pyramid is proceeding with its land use

applications proposing to develop over three acres of Town property without identifying same

in the original or revised EAF. As above, all Town property proposed to be transferred to

Pyramid should be disclosed and is subject to New York’s alienation procedures and a

permissive referendum as set forth in New York State Town Law §64(2).

199. By contrast, its FEIS did acknowledge other jurisdictions control of certain roads:

“[s]ome, but not all of the alternative road configurations would require the approval by the

City of Albany.” (FEIS at p. 153.)

200. The Planning Board’s failure to identify the permanent transfer of Town Roads to

Pyramid as a pre-requisite to developing Sites 1, (Westmere cul-de-sac) and Site 2, (Lawton,

Tiernan, Rielton and Gabriel), and that such actions are subject to a permissive referendum,

render its SEQRA findings incomplete and invalid.

31
 B. Wetlands

201. The Town failed to release Pyramid’s wetland delineation report until ten weeks after

acceptance of the DEIS. See DEIS comments of Pace Law School 5/26/20; “Dr. Kiviat made

the alarming discovery that the project proponent relied on a wetland report when making its

environmental findings, but failed to attach that wetland report to the EIS when the project

proponent submitted it to the Board.” Available at:

https://www.townofguilderland.org/planning-board/pages/reports-submitted-public.

202. Based upon field observations, Dr. Kiviat, a Professional Wetland Scientist. identified

Site 2 may contain additional federal wetlands which have not been mapped and thus an

inspection by the Army Corps of Engineers is necessary.

203. The FEIS responded that Pyramid’s wetland delineation “has been confirmed by the

ACOE.” FEIS, Appendix 8.

204. However, Appendix 8 of the FEIS advises that the ACOE’s examination was a desk-top

review relying solely on the Applicant’s map without knowledge of the results of Dr. Kiviat’s

field investigation.

205. In fact, the ACOE cautioned:

The Corps of Engineers believes that there may be jurisidictional waters of the
United States on the subject site, and the permit applicant or other affected party
who requested this preliminary JD is hereby advised of his or her option to
request and obtain an approved jurisdictional determination (JD) for that site.
Nevertheless, the permit applicant or other person who requested this
preliminary JD has declined to exercise the option to obtain an approved JD in
this instance and at this time.

Appendix 8 of the FEIS.

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206. Petitioners maintain that the failure of the Planning Board to require field confirmation

by the ACOE given Dr. Kiviat’s on-site observations rendered its review of wetlands impacts

incomplete.

C. Traffic

207. The Applicant’s, (Maser Consulting), traffic projections do not resemble the actual

traffic counts at Costcos in Melville, New York and Hackensack, New Jersey, as well as

Costco’s own traffic projections for a store in La Habra, California which report the generation

of hundreds of more trips as compared with Maser’s estimate. See Exhibit CC, F&A

comments at pgs. 16-18.

208. Specifically, Maser Consulting underestimated PM peak hour trips by 200 and Saturday

peak hour trips by 286 trips as compared with Costco’s La Habra study. Id. at 17.

209. Compared with actual traffic counts at Costcos in New York and New Jersey, Maser

underreported traffic trips by over 300 trips. Id. at 18.

210. Thus, the SEQRA findings rely upon modelled traffic counts not representative of other

Costcos.

211. Regarding the actual counts at the Melville and Hackensack Costcos, Petitioners

provided the Planning Board with Michael Maris’ full comments on the Yorktown, New York

Costco dated October 30, 2014. Exhibit BB-2. These are in addition to the July 7, 2016

comments by Mr. Maris on the Patterson, New York, Costco which Petitioners supplied to the

Town on December 23, 2019. Exhibit Y-1.

212. Petitioners’ 12/23/19 correspondence specifically cited Mr. Maris’ comments and

called upon the DEIS to “identify the frequency and size of fuel truck deliveries in order to

properly assess traffic and market impacts.” This was crucial in assessing traffic impacts

33
especially where Costco’s own estimates indicated projected sales of 7-10 million gallons of

gasoline a year. Exhibits BB and BB-1.

213. However, the Guilderland DEIS contained no information on the size of fuel trucks, the

frequency of gasoline deliveries or projected annual sales of gasoline.

214. While the FEIS, (at 143), did state the Guilderland Costco would expect “[a]n average

of 15 fuel deliveries/week,” it did not disclose the size of the trucks or the projected annual

sales of gasoline.

215. The issue is critical in examining Costco’s traffic generation and was raised repeatedly

by Petitioners because Costco’s Yorktown FEIS stated “[t]he Costco fueling facility is

expected to sell as much as approximately 10,000,000 gallons per year.” Exhibit BB-1. Costco

made that estimate despite at least five (5) Costcos being located within an approximate 25-

mile radius of Yorktown - in Nanuet, Yonkers, New Rochelle and Port Chester, NY and in

Brookfield, Ct.

216. However, the nearest Costco to Guilderland Albany is about 70 miles east in West

Springfield, Massachusetts. Therefore, the absence of other Costcos near Guilderland indicates

the Guilderland Costco could sell more than 10 million gallons of gasoline a year.

217. The Board’s SEQRA findings does not mention deliveries, fuel tanker sizes or even the

term “gasoline” though Petitioners repeatedly identified this issue as having a direct bearing on

Costco’s traffic generation.

218. The SEQRA findings give no credit to actual traffic generation from other Costco’s and

Costco’s own traffic studies filed in other SEQRA proceedings because “the trip generation

was based on ITE standards and were found to be reasonable by the Town’s traffic consultant

and NYSDOT.” FEIS at pg. 94.

34
219. The Planning Board violated SEQRA by failing to consider how gasoline sales in

excess of 10 million gallons a year would affect traffic generation estimates. In every respect,

the lead agency must consider that “[i]n evaluating the potential environmental impact,

agencies generally consider the ‘reasonable worst-case scenario,’ with the maximum

development and negative environmental impact. Matter of Ordonez v. City of N.Y., 60 Misc.

3d 1213(A) (Sup. Ct. 2018), and see Neville v. Koch, 79 NY2d 416, 428 (1992), full analysis of

“worst-case” scenarios. Thus, the lead agency must assess the volume of gasoline sales and

analyze the issue from a worst case scenario.

220. Therefore, the lead agency’s failure to identify the amount of fuel to be sold at the

Costco indicates the lead agency failed to take a “hard look” at total traffic generation as

required by SEQRA.

D. Material conflict with the WCS and TOD district

221. SEQRA explicitly requires inquiry into whether a project creates “a material conflict

with a community’s current plans or goals as officially approved or adopted” 6 NYCRR

§617.7(c) (1) (iv).

222. The SEQRA findings, (20-23), claims the project complies with every provision of the

WCS and TOD.

223. Initially, the SEQRA findings claim “[t]he Town Board’s determination to establish the

TOD and the permitted uses was completed as part of a 6 month long public participation

process.” Exhibit OO at pg. 20.

224. This finding is inaccurate.

225. As above, the TOD district was first discussed on April 17, 2018 and a public hearing

was set for May 1, 2018.

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226. No Town Board meeting was held on May 1, 2018.

227. When the Town Board convened on June 5, 2018, it claimed it was holding a public

hearing but no proof of publication was made. No one from the public knew the TOD was to

be voted on by the Town Board on that date and the public was unaware of the overlay district.

See McDonald Affidavit at ¶¶10-11 and Hart Affidavit at ¶3.

228. i. Scale and magnitude

A TOD strategy inherently requires a focus on improving access to non-auto

oriented modes of transportation and integrated street networks.

Exhibit BB at pg. 3 citing the WCS at pg. 62.

229. Indeed, the WCS intended to TOD to result in “a reduced emphasis on the automobile”

and that “[a]n abundance of surface parking directly conflicts with this concept in both form

and function.” The WCS specifically targeted the project area stating uses should “Support a

Wide Variety of Non-Auto Dependent Land Uses” to “create a walkable, viable mixed use

community.” Exhibit BB at pg. 3 citing the WCS at pg. 62-64.

230. The Costco project is inherently contrary to the priorities and purposes expressed by the

WCS and the TOD zone as it 1) eliminates an existing residential neighborhood, 2)

consolidates more than a dozen tax lots for a single commercial retailer, 3) the project does not

present a “model neighborhood design” and 4) there is no “mix of housing, shopping,

entertainment and employment” at a neighborhood scale to reduce automobile uses.

231. As noted by Petitioners:

In sum, a Costco with 700 parking spaces selling 7-10 million gallons of
gasoline a year, (the Costco in New Rochelle sells 1.4 million gallons every
month), conflicts with virtually every sentence in the WCS. While “[a] TOD
neighborhood is expected to be fairly dense to keep walking distances shorter
and maximize the number of people living, working and visiting the area,” an
existing residential neighborhood will be replaced by single automobile-centric
use.

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Exhibit BB at pg. 6.

232. Additionally, the Albany County Planning Board, (ACPB), commented on the

development of Sites 1 and 2, recommending a denial of the uses due to the a material conflict

with the TOD district’s purposes. Exhibits N, N-1 and MM.

233. Regarding the development of Site No. 1, the ACPB advised:

The purpose of a “Transit Oriented District (TOD) is to encourage more

compact development, traffic measures, better access management, improving
the environment for non-automobile oriented modes of transportation, reducing
the number of required parking spaces, supporting mixed use building and
pedestrian linkages, and focusing intense development away from existing
residential neighborhoods.” The TOG board should encourage significantly
reducing the number of parking spaces provide to coincide with the purpose of
the TOD….

The proposed single use project does not appear to meet the intent of the re-
zoning. If the development is proposed to be in multiple phases then the
applicant should demonstrate how the proposed development with or without
future phases will support the goals and objectives of the TOD District.

Exhibit N-1, Albany County Planning Board Minutes March 21, 2019.

234. And, regarding the development of a Costco at Site 2, the ACPB advised:

The ACPB find the proposed use is not a compatible land use as it does not
meet the purpose of an approved use in a Transit Oriented Development District
(TOD) as described in the Town of Guilderland (TOG) Zoning Code Chapter
280-18.1 A. Purpose.

Exhibit MM.

235. Thus, the project’s generation of daily thousands of traffic trips and acres of

impervious parking surfaces are in conflict with the TOD and the WCS.

i. A Costco is not a “Automobile Service Station”

236. Petitioners identified a big box store selling gasoline is not a permitted use under the

Town Code. “It is a basic tenet of zoning jurisprudence that an ordinance which lists permitted

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uses excludes any uses that are not listed.” Incorporated Vil. of Old Westbury v Alljay Farms,

100 AD2d 574, 575 (2d Dept 1984), mod 64 NY2d 798 (1985).

237. The Applicant replies that its use on Site 2 is actually two independent uses joined

together on a single lot.

238. However, as Petitioners detailed in their DEIS comments and in the accompanying

memorandum of law, a Costco selling fuel is not a “automobile service station” as defined by

the Guilderland Town Code due to scale, multiple retail sales items and membership sales

restrictions,. Exhibit BB, pgs. 11-13.

239. Moreover, even if Costco’s gasoline station could somehow be considered a

“automobile service station” as defined by the Town Code it would be an unlawful accessory

use under the Town Code.

240. Thus, the SEQRA findings that “[t]he proposed action includes all uses specifically

listed as permitted uses in the TOD,” (Exhibit OO at pg. 21), is inaccurate as a big box store

selling gasoline is not a use permitted as of right or by special use permit by the Town Code

and is not two separate independent uses as defined and the Code.

241. The failure of the SEQRA findings to recognize these indisputable facts renders the

Board’s adoption of the SEQRA findings arbitrary, capricious and an abuse of discretion

requiring remand.

E. Air Quality

242. The facts indicate the proposed Guilderland Costco could transport, handle and sell 10

million gallons of gasoline a year which could negatively impact air quality.

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243. However, the DEIS is devoid of any such analysis or discussion. In fact the term

“gasoline” is not even mentioned in the cursory DEIS Air Quality section at 3.9.1.2 or in the

air quality study at Appendix P of the DEIS.

244. Thus, the DEIS is deficient in identifying and discussing potential air quality impacts

resulting from the annual transport, storage and sale of 10 million gallons of gasoline.

F. Socio-economic impacts/business displacement

245. Petitioners repeatedly requested the Board to examine community character issues

including business displacement prior to Board’s acceptance of the DEIS, in the DEIS

comments and in the FEIS comments citing Matter of Wellsville Citizens for Responsible Dev.,

Inc. v Wal-Mart Stores, Inc., 140 AD3d 1767, 1770 (4th Dept 2016):

A town . . . board reviewing a big box development should consider the impact
of the development on the community character of a neighboring village that
might suffer business displacement as a result of the approval of the big box
development.

246. Petitioners provided the Board with a 2015 report by F&A which included nine

merchandising categories and examined whether a Costco would result in an oversaturation or

displacement of existing retail business resulting in blight.

247. The Board ignored the analytical evidence claiming this report was a “back door”

attempt to steer the SEQRA review to examining economic competition.

248. Despite the fact that F&A’s 2015 report categorized and discusses market areas,

consumer demand, forecasts and assessed business displacement within various distances from

the proposed Yorktown Costco, the Board’s FEIS stated “the impact of economic competition

on ‘community character’ cannot in any real sense be quantified, accurately analyzed, or form

a rational basis for a planning board decision.” FEIS at 127.

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249. And the SEQRA findings flatly rejected business displacement as an issue requiring

SERQA review stating: “economic consequences and competition are not environmental

factors.” SEQRA findings at pg. 28.

250. Because Petitioners identified that Route 20 already had suffered blight from closed

businesses, including gasoline stations, the identified area of Route 20 was certainly prone to

further business displacement as the result of the introduction of Costco.

251. The Board’s failure to identify and evaluate the various categories of businesses

potentially displaced by Costco - as Costco itself had examined in the 2015 F&A report -

renders the Board’s adoption of SEQRA findings arbitrary, capricious and an abuse of

discretion requiring judicial annulment of those findings and remand.

G. Alternatives

252. Pursuant to SEQRA, “any choice among alternatives must be based on an awareness of

all reasonable options.” Matter of Brander v. Town of Warren Town Bd., 18 Misc. 3d 477, 481

(Sup. Ct. 2007).

253. The scope called for reduced scale alternatives and investigating other areas of the

Crossgates Mall for potential in-fill development; e.g. “[a] retail center of a smaller or larger

scale than the redevelopment at Site 2 is possible.” DEIS at pg. 124.

254. However, Pyramid claimed examination of alternatives was not feasible due to different

ownership of properties in the Crossgates Mall.

255. Pyramid’s claim is inaccurate. The Mall tax parcels at the western section of Crossgates

Mall that could be used for in-fill development are all owned by Pyramid affiliates or

subsidiaries all sharing the same address and contacts, according to the New York State

Department of State corporation search database.

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256. Indeed, contrary to Pyramid’s claims, in a public announcement dated March 18, 2020,

Pyramid acknowledged ownership and control of the Crossgates Mall along with a number of

other malls. https://www.pyramidmg.com/pyramid-announces-closure-of-all-interior-portions-

of-its-ny-shopping-centers/

257. Specifically, Pyramid stated Governor Cuomo’s Executive Order to close the interior of

malls, “impact the following Pyramid-owned and operated centers: “New York, Aviation Mall

— Queensbury, NY, Champlain Centre — Champlain, NY [and] Crossgates — Albany, NY.”

Id. For more information, Pyramid directs interested parties to its website and address at

“www.pyramidmg.com, The Pyramid Companies, The Clinton Exchange, 4 Clinton Square,

Syracuse, NY 13202.”

258. Petitioners’ DEIS comments detailed the benefits of a number of alternatives involving

the 15 acres of unused parking areas at Crossgates Mall.

Another alternative is urged by the CWS involving shared parking. Immediately

adjacent to Site No. 2 is the Crossgates Mall. The western section of the Mall
includes approximately 15 acres of unused and/or underutilized parking. Below
is a figure from the DEIS which shows the absence of cars in the western
section of the Crossgates Mall. Reconfiguring the Costco to be sited within the
Crossgates Mall is a reasonable alternative that meets several key CWS
recommendations. First, it would allow Costco and the Rapp Road residences to
share parking. Second, the western section of the Mall would no longer be
under-utilized. Third, siting Costco in the “inner” circle of the Mall would bring
more traffic onto ring road. Fourth, siting Costco next to Rapp Road would
actually allow some pedestrian access to Costco, (provided the boxes were not
too large). Fifth, Costco could study underground parking and build the[ir]
building right above the existing parking lot shown below. For all these reasons,
this option should be examined (also without a fueling station as that would
actually comply with the zoning code.)

259. Finally, the lead agency’s neutral consideration of reasonable alternatives is non-

discretionary i.e. the lead agency “shall act and choose among alternatives.” ECL §8-0109(1).

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260. However, the cutting of 5.2 acres of trees on Site No. 2 is a de facto ruling that no

alternative will be considered that preserves the cut area as mitigation or for open space to

balance environmental impacts.

261. Indeed, the clear cutting of 5.2 acres on Site No. 2 caused irreparable harm and

committed irretrievable resources advancing the development of Site No. 2 and unlawfully

committed Respondents to a definitive course of action limiting the selection of alternative site

layouts and designs called for by the scoping document.

262. Therefore, the clear cutting and the lead agency’s failure to examine Crossgates Mall

in-fill options render the adoption of its SEQRA findings arbitrary, capricious and an abuse of

discretion.

263. For the above substantive violations, the Board’s SEQRA findings must be judicially

annulled and the matter remanded for further proceedings consistent with SEQRA.

FIFTH CAUSE OF ACTION

Municipal Respondents Planning Board and Zoning Board of Appeals

do not have jurisdiction to consider Pyramid’s land use applications

264. The allegations of the preceding paragraphs are incorporated here by reference.

A. No authorization to develop Town properties

265. The Town’s subdivision, site plan and special use permit applications require

certification that the applicant is authorized to proceed on the subject property owner’s behalf.

266. Specifically, Pyramid’s agent James Soos, signed the subdivision and site plan

applications for Site No. 1 and the special use application for Site No. 2 certifying that he had

authorization from all the property owners within Sites 1 and 2.

267. He does not. Pyramid does not own or control the Town’s roads or rights of way in the

Westmere and Lawton neighborhoods.

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268. Because 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.

269. In the alternative, the Town’s tacit approval in allowing Pyramid to proceed with its

land use applications to develop over 3 acres of Town-owned property is a violation of, and

unauthorized substitute for, the requirements of New York State Town Law §64(2). Town Law

§64(2) requires a formal resolution to transfer municipal property rights and is subject to a

permissive referendum. (Town Law §90.)

B. No site plan or subdivision application filed for Site No. 2

270. Pyramid was unauthorized to pursue lot consolidation on Site No. 2 without an

application to the Planning Board for subdivision approval.

271. Indeed, §280-49 of the Guilderland Code states:

No real property shall be subdivided into two or more lots, or any lot line
changed, until a map of such subdivision, drawn to a scale as prescribed by the
Planning Board, showing such lots and any streets laid out in connection
therewith, shall have been approved by the Planning Board and filed with the
Albany County Clerk's office in accordance with Chapter 247, Subdivision of
Land.

272. While Pyramid submitted site plan and subdivision applications to the Planning Board

for the consolidation of tax lots and development of Site 1, it did not submit these applications

for the consolidation of tax lots for the development of the Costco on Site 2.

273. Therefore, the Town is unauthorized to continue reviewing Pyramid’s land use plans

for Site 2.

274. In sum, the Town’s municipal Boards do not have jurisdiction to continue to review

Pyramid’s proposals to develop Sites 1 and 2.

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275. Petitioners therefore request an order enjoing further administrative review until

Pyramid receives authorization from the Town to develop its properties on Sites 1 and 2 and

Pyramid files subdivision and site plan applications for the development of Site No. 2.

C. Proceedings before the ZBA

276. Due to the fundamental conflict with the Town’s zoning Code presented by the project,

Petitioners have filed an application to the ZBA for an interpretation as to whether the project

is consistent with the TOD district and the Town Code. Exhibit LL.

277. Should the ZBA determine the project does not comply, the project would need to be

re-designed.

278. Thus, Petitioners request an order enjoining the Planning Board’s further site plan and

subdivision review for the development of Sites No. 1 and 2 pending determination by the

ZBA whether the project is consistent with the Town’s zoning code.

SIXTH CAUSE OF ACTION

The clear cutting of 5.2 acres has predetermined the outcome of its SEQRA review
foreclosing meaningful administrative review

279. The allegations of the preceding paragraphs are incorporated here by reference.

280. SEQRA requires the lead agency to identify, review and choose among reasonable

design and layout alternatives that will minimize environmental impacts to the maximum

extent practicable.

281. Here, Pyramid cut down the trees during the comment period for the DEIS, knowingly

and willfully to prevent threatened and endangered species from using the site’s trees for

nesting and roosting.

282. And, as above, Pyramid did not even file a subdivision approval application or a site

plan application, (as it did for Site No. 1), before cutting down the trees.

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283. Thus, the Planning Board has unlawfully predetermined the SEQRA review by

allowing the clear cutting and conducting an environmental review with an unalterably closed

mind.

SEVENTH CAUSE OF ACTION

Municipal Respondents’ Town Planner’s authorization allowing Pyramid to clear cut 5.2
acres was ultra vires and illegal

284. The allegations of the preceding paragraphs are incorporated here by reference.

285. Mr. Kovalchik is the Town Planner who assists the Guilderland Planning Board with

site plan and subdivision applications. Exhibit HH, Kovalchik Declaration at ¶¶1-2.

286. According to the Town website:

The Planning Department provides administrative support to the Planning Board

and Conservation Advisory Council, including the processing of subdivision
applications and coordinating review, where necessary, among the Planning
Board, Town Board, Albany County Planning Board and GCAC. The
Department maintains the Town's official zoning map, disseminates information
to residents about the planning and subdivision processes, and administers the
Geographic Information System.

https://www.townofguilderland.org/planning-department.

287. None of the Town Planner’s duties include making legal determinations regarding

whether the Town Code authorizes certain activities such as clear cutting.

288. The Town Planner is also not authorized to unilaterally permit any type of construction

activity, especially the clear cutting of a site undergoing administrative review.

289. Indeed, the Town Code vests sole authority regarding allowing the clear cutting of a

site with the Planning Board:

In preparing a lot for construction of a structure, the owner or developer shall

remove only those trees necessary to make the construction feasible; all other
vegetation shall be left in place and shown on site plans.

[and]

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 No lot shall be cleared completely of existing trees except on the approval of
the Planning Board.

[Further]

No portion in excess of 25% of any approved plat shall be stripped of its cover
at any time. This prohibition shall include land to be used for streets.

Guilderland Town Code at §247-30(B) and (C); emphasis added.

290. Here, the analysis of Andrew Willingham, P.E. shows that Mr. Kovalchik allowed

Pyramid to clear cut trees on twelve existing lots. Of the lots clear cut, two lots were cleared

by 100%, six lots were clear cut by more by than 75% and three lots were clear cut by more

than 25%. Affidavit of Willingham at Exhibit B.

291. The Guilderland Planning Board did not vote to approve the clear cutting.

292. No Planning Board members played a role in Mr. Kovalchik’s decision to allow the

clear cutting to proceed.

293. No law authorizes Mr. Kovalchik to interpret whether the Town Code allowed Pyramid

to clear cut Site No. 2 as the Town Code vests that jurisdiction solely with the Planning Board.

294. Thus, Petitioners seek a declaration that the Town Planner’s approving of the clear

cutting was ultra vires and contrary to the Town Code.

EIGHTH CAUSE OF ACTION

The Town’s tacit approval in allowing Pyramid to proceed with permitting applications
involving Town property violated Town Law

295. The allegations of the preceding paragraphs are incorporated here by reference.

296. The Town has violated Town Law §64(2) by allowing Pyramid to unlawfully assume

control over Town properties consisting of the Westmere Terrace cul-de-sac, (Highway by

use), and portions of all of the Town roads known as Lawton Terrace, Tiernan Court, Rielton

46
Court and Gabriel Terrace without formal conveyance of an interest in the Town’s properties

pursuant to Town Law §64(2), thereby depriving the public from timely and meaningful

opportunity to petition for a permissive referendum. Town Law §90.

297. In sum, Petitioners are entitled to a neutral, fair and reasoned SEQRA review that

complies in all respects with the law. However, Respondents have undermined SEQRA by

clear cutting 5.2 acres of Site No. 2 during the SEQRA process thereby pre-determining

alternatives, failing to adequately identify environmental impacts, failing to consider and

choose among reasonable alternatives as required by SEQRA, (ECL §8-0109[1]), that

minimize, to the maximum extent practicable, impacts to the environment before causing

environmental damage.

NINTH CAUSE OF ACTION

The Town’s violations of the Freedom of Information Law

298. The allegations of the preceding paragraphs are incorporated here by reference.

299. During the course of the project’s administrative review, the Town has repeatedly

withheld records and failed to respond to an appeal in violation of New York’s Freedom of

Information Law, (FOIL), (Public Officers Law, [POL]. Article 6), and the Town of

Guilderland’s “Public Access to Records” law. Town Code Chapter 89, Article III.

300. The Town’s records access law provides in part:

The People's right to know the process of government decisionmaking and the
documents and statistics leading to determinations is basic to our society.
Access to such information should not be thwarted by shrouding it with the
cloak of secrecy or confidentiality.

Personnel shall furnish to the public the information and records required by the
Freedom of Information Law (§ 84 et seq. of the Public Officers Law), as well
as records otherwise available by law.

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 Any conflict among laws governing public access to records shall be construed
in favor of the widest possible availability of public records.

Town Code §89-8(A)-(D).

301. As stated above at ¶113, the Town denied Petitioners’ counsel’s request for a copy of

the DEIS transmitted to the Town by Pyramid on December 24, 2018, (Exhibit Z), on January

17, 2020, claiming the DEIS was “intra-agency documentation.” Exhibit AA.

302. The claim was baseless because Pyramid is not an agency of the Town.

303. On March 29th and April 2nd, 2020, Petitioners’ counsel submitted FOIL requests for

communications between Pyramid and the Town relating to the proposed Costco. Exhibits PP

and QQ. The March 29th request sought in part:

[A]ny communications between the Pyramid Corporation, Maser Consulting or

Costco or any party representing or working on behalf of those parties which
includes mention of the word “Costco” or refers the property shown as Site No.
2 as part of the Rapp Road development currently undergoing SEQRA review
and any Town of Guilderland agency, representative, employee, appointee,
Boardmember or consultant, including the Town Planner Ken Kovalchik and
the Planning or Building Department from 2016 to December 20, 2019.

Exhibit PP.

304. The Town denied this request on April 23, 2020, addressing only the March 29, 2020

FOIL request stating “this request does not ‘reasonably describe’ the record being requested as

required by the FOIL law.” Exhibit RR.

305. Petitioners’ counsel then filed an appeal on April 27, 2020, (Exhibit SS), as provided

for by Town Code ¶89-13(C):

The Town Board shall hear appeals for denial of access to records under the
Freedom of Information Law. Such appeals shall be made within 30 days of a
denial.

[and at (F)]

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 The Town Board shall inform the appellant and the Committee on Open
Government of its determination, in writing, within 10 business days of receipt
of an appeal. The determination shall be transmitted to the Committee on Open
Government in the same manner as set forth in Subsection E of this section.

306. However, rather responding “within 10 business days,” five months have elapsed with

no determination on the April 27, 2020 appeal, thus evincing a constructive denial of the

appeal.

307. Further, review of Guilderland’s website posting the Town Board’s minutes indicates

no discussion of petitioner’s counsel’s FOIL appeal by the Town Board at any of its

subsequent meetings held 5/1/20, 5/19/20, 5/29/20, 6/16/20, 7/7/20 and 8/4/20, the last date for

which such minutes are posted. https://www.townofguilderland.org/node/42/minutes/2020.

308. Therefore, Petitioners request an order requiring production of the records sought and

“reasonable attorney’s fees and other litigation costs reasonably incurred” if Petitioners are the

substantially prevailing party in this matter as provided for by POL ¶89(4)(c).

309. As a result of all of the above, Petitioners seek the following relief.

RELIEF SOUGHT

Petitioners respectfully request that this Court issue an order pursuant to CPLR §7803,

(1), (2), and (3) and CPLR §6031:

1. Enjoining any further tree cutting or construction activities on Sites 1-3 pending
determination of the merits of this action, and;

2. Enjoining the Respondent Guilderland Planning Board’s further site plan and
subdivision review for the development of Sites No. 1 and 2 pending determination by the
ZBA whether the project is consistent with the Town’s zoning code, and;

3. Enjoining further Respondent Guilderland administrative land use reviews for Site Nos.
1-3, as the Town Planning Board and Zoning Board of Appeals do not have jurisdiction to
consider Pyramid’s development plans absent Town authorization regarding the use or
alienation of Town-owned property consisting of portions or all of the Westmere Terrace cul-
de-sac, Lawton Terrace, Tiernan Court, Rielton Court and Gabriel Terrace, and:
49
4. Enjoining further Town administrative land use review of Site No. 2, pending
Pyramid’s submission of subdivision and site plan applications to the Planning Board, and;

5. Declaring that pursuant to New York Highway Law §189, the Westmere Terrace cul-
de-sac is a “highway by use” and therefore subject to the alienation procedures and a
permissive referendum as set forth in New York State Town Law §64(2), and;

6. Declaring that the Planning Board did not have authorization and thus no jurisdiction to
consider Pyramid’s land use applications absent Town authorization regarding Pyramid’s
proposed use of Town-owned property consisting of portions or all of the Westmere Terrace
cul-de-sac, Lawton Terrace, Tiernan Court, Rielton Court and Gabriel Terrace, and;

7. Annulling and setting aside Respondent Planning Board’s adoption of SEQRA findings
on August 28, 2020, and;

8. Upon remand, ordering re-establishment of lead agency pursuant to 6 NYCRR 617.20

after amendment and re-circulation of Parts 1 and 2 of the EAF which must include
information concerning the environmental impacts from the proposed development of Sites
No. 2 and 3, including alienation of Town properties in the Westmere and Lawton
neighborhoods and that such alienation is subject to a permissive referendum pursuant to Town
Law §64(2), and;

9. Ordering Respondents to release the records sought by Petitioners described in the

Ninth Cause of Action and “reasonable attorney’s fees and other litigation costs reasonably
incurred” if Petitioners are the substantially prevailing party in this matter as provided for by
POL ¶89(4)(c), and

10. Granting Petitioners such further relief as the Court may deem just and proper including
reasonable attorney fees.

Respectfully submitted this 25th day of September, 2020.

Attorney for Petitioners

P.O. Box 575
New Paltz, New York 12561
Telephone: (845) 419-2338
baconesq@yahoo.com

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 VERIFICATION

STATE OF NEW YORK )

) ss.:
COUNTY OF ULSTER )

JAMES BACON, affirms that he is the attorney for the Petitioners in the within action
and that the foregoing petition is true to his own knowledge and documentary evidence, except
as to the matters therein stated on information and belief and as to those matters he believes it
to be true; that the grounds of his belief as to all matters not stated upon his knowledge are
interviews, correspondences, information provided at public hearings and review of documents
furnished to him by Petitioners as well as writings and publications of the respondents all
pertaining to the allegations in the petition; and the reason this verification is being made by
counsel in lieu of petitioner is that the Petitioners are not located in the County of Ulster, which
is the County in which Petitioners’ counsel maintains his principal office.

Dated: September 25, 2020

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