SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION,TIDRD DEPARTMENT

SAVE THE PINE BUSH, INC., STIPULATION TO

BRIEFING SCHEDULE
Petitioner-Appellant,
Case No. 534176
-against-
Albany County Index No .
TO'WN OF GUILDERLAND; TOWN OF 907491-20
GUILDERLAND PLANNING BOARD; PYRAMID
MANAGEMENT GROUP, LLC; RAPP ROAD
DEVELOPMENT, 'LLC; and CROSSGATES
RELEASECO, LLC,

Respondents-Respondents.

WHEREAS, Appellant Save the Pine Bush, Inc. served a notice of appeal,

dated October 15,2021, to this Court from the Decision, Order, and Judgment of

Supreme Court; Albany County (McDonough, A.J.), dated October 7, 2021 and

entered October 8, 2021 ; and

WHEREAS, Respondents Town of GUilderland, Town of Guilderland

Planning Board, Pyramid Management Group; LLC, Rapp Road Development,

LLC, and Crossgates Releaseco, LLC moved this Court, by order to show cause,

returnable on November 3, 2021, for an expedited briefing schedule, without

extensions, and for an oral argument preference; and

 WHEREAS, the parties, by and through their undersigned counsel, have

conferred regarding the pending motion and have agreed to the foJ lowing, in partial

satisfaction of Respondents' Inotion; and, thus, it is hereby

STIPULATED AND AGREED, that Appellant Save the Pine Bush, Inc.

shall perfect its appeal from the October 8, 2021 Decision, Order, and Judgment of

Supreme Court on or before December 6, 2021; and it is further

STIPULATED AND AGREED, that Respondents shall file and serve,

through NYSCEF, their briefs in opposition to Appellant's appeal within 30 days of

the date of service of the Appellant's submissions; and it is further

STIPULATED AND AGREED, that Appellant shall file and serve, through

!\rySCEF, its reply brief in further support of its appeal within 10 days of the date of

service of the Respondents' submissions; and it is further

STIPULATED AND AGREED, that the parties shall not extend these

deadlines absent a further order of this Court, upon good cause sho\vn: and it is

further

STIPUI..IATEI) ANI) AGREED, thut all parties consent t() the POrti\.111 of

Respondents' motion seeking an oral argunlcnt pl'ctcrcncc, ,uld Rt:spondents \vill

continue to seck the Court s approval fur the sante.

t

2
•

PACE ENVIRONMENTAL WUITEMAN OSTERMAN & HANNA LLP

LITIGATION CLINIC, INC.

~',I/ 4'
By: ·~;.~LV If /I~. By:
TOdd D. Onlnlen ~~---------------
Robert S. Rosborough IV
Attorne.,Vs for Save the Pine
Gabriella R. Levine
Bush. Inc.
Attorneys for Pyramid
78 North Broadway
Management Group, LLC,
\Vhite Plains!, NY 10603
Rapp Road Development, LLC,
(914) 422-4343
and Crossgates Releaseco, LLC
torruuen@law.pace.edu
One Commerce Plaza
Albany, New York 12260
(518) 487-7600
lTosborough@woh.com

TOWN OF GUILDERLA1\TQ TOWN

AITORNEY

By'
~--~----~~--~-------
James P. Meli
Attorney o'wn (J.l Guilderland.
and OlVI1 of Guilderland
Planning Board
Guilderland To\\'n Hall
P.O. Box 339
Guilderland .. Nll' 1~OS4-0339
(518) 356-1980
james@melitala\\'.cl't11
 INDEX NO. 9074~1-LU
IFILED: ALBANY COUNTY CLERK 10/08/2021 12:31 p~
RECEIVED NYSCEF: 10/08/2021
NYSCEF DOC. NO. 70

STATE OF NEW YORK

SUPREME COURT COUNTY OF ALBANY

SAVB 1HE PINE BUSH, INC.,

Petitioner,

DECISION, ORDER and

JUDGMENT

-against.. Index No. 907491 ..20

RJI No. 01-20.. 136667

TOWN OF GUILDERLAND; TOWN OF GUILDERLAND

PLANNING BOARD, PYRAMID MANAGEMENT GROUP,
LLC; RAPP ROAD DEVELOPMENT, LLC and CROSSGATES
RELEASECO, LLC,

Respondents.

(Supreme Court, Albany County All Purpose Term)

Appearances:
PACE ENVIRONMENTAL LITIGATION CLINIC, INC.
Attorneys for Petitioner
78 North Broadway
White Plains, New York 10603 .
(Todd D. Ommen, Esq., of Counsel)

WHITEMAN OSTERMAN & HANNA LLP

Attorneys for Respondents Pyramid Management Group, LLC, Rapp Road Development, LLC,
and Crossgates Releaseco, LLC ("Pyramid respondents")
One Commerce Plaza
Albany, New York 12260
(Robert S. Rosborough, IV., Esq., Gabriella R. Levine~ Esq., and Anna V. Pinchuk, Esq., of
Counsel)

JAMES P. MELITA, ESQ.

Guilderland Town Attorney .. Attorney for Respondents Town of Guilderland and Town of
Guilderland Planning Board ("Guilderland respondents")
ToVID. Hall, Route 20
P.O. Box 339
Guilderland, New York 12084-0339

1 of 5
[FILED: ALBANY COUNTY CLERK 10 / 08 / 2021 12:31 p~ RECEIVED NYSCEF: 10/08/2021
NYSCEF DOC. NO. 70

Roger D. McDonough, J.:

Petitioner seeks a judgment: (1) finding that respondent Planning Board's adoption ofa
findings statement was arbitrary and capricious; (2) respondent Planning Board's approval of the
site plan to build on site I was arbitrary and capricious; (3) annulling and set aside the findings
statement of August 28, 2020; (4) enjoining respondent Planning Board from reviewing further
site plans on sites 2 and 3 until respondents properly comply with SEQRA; and (5) annulling and
setting aside the site plan for site 1. All respondents oppose the petition in its entirety.
Background
In arelated1 case, Matter of Hart v Town of Guilderland (Index # 906179-20) ("Hart
case''), Justice Lynch deemed certain actions of respondent Planning Board to be arbitrary and
capricious. Petitioner sought a stay of the instant proceeding while the Hart case was being
appealed. The purpose of the stay was to preserve the parties' rights and avoid wasting litigation
resources on issues that did not require resolution unless and until the Hart case was reversed on
appeal. The Pyramid respondents opposed the stay. The Court granted the stay pending the
Appellate Division, Third Department's resolution of the appeal in the Hart case. Ultimately, the
Third Department issued a reversal in the Hart case. Specifically, the Third Department found
that, inter alia, respondent Planning Board complied with the procedural and substantive
requirements under SEQRA (Matter of Hart v Town of GUILDERLAND, 196 AD3d 900 [3M
Dept. 2021J.
After the Third Department's Hart ruling, the Pyramid respondents asked the Court to
terminate the stay, render a determination on the merits and dismiss the petition in its entirety.
The Pyramid respondents contend that the Third Department found that respondent Planning
Board complied with all of the procedural and substantive SEQRA mandates that were similarly
challenged in the instant matter. Petitioner argues that the Third Department's ruling has no
relevance to the resolution of the instant matter. Specifically, petitioner points to the unresolved

The related case was completed, at the Supreme Court level, at the time this
matter was assigned to this Court. Accordingly, pursuant to Supreme Court Clerk Albany
County practice, this matter was not assigned to Justice Lynch but was simply placed on the
Individual Assignment System wheel.

2 of 5
 INDEX NO. 9074~1-2U
(FILED: ALBANY COUNTY CLERK 10/08/2021 12:31 Pij
RECEIVED NYSCEF: 10/08/2021
NYSCEF DOC. NO. 70

issues of whether the Planning Board: (1) failed to take a hard look at impacts to certain
threatened or endangered species or species of special concern; (2) failed to conduct a complete
survey as to traffic, pesticides, wetlands, climate change and air quality; (3) failed to address
criticism on these issues following the publication of the DEIS; (4) included empirically false
and unsupported assertions regarding the relevant ecosystem in the FEIS; (5) failed to hold a
public hearing as required by law on October 28,2020; and (6) improperly made determinations
on the relevant projects despite not having sufficient members as required by law. All
respondents disagree with petitioner's interpretation and argue that all SEQRA issues have been
fully resolved by the Third Department. The respondents do acknowledge that ~e following
issues were not resolved by the Third Department: (1) the adequacy of the public hearing held on
October 28,2020; and (2) the sufficiency of the number composition of the Planning Board.
Discussion
SEQRA
The Court has reviewed the submissions in this matter and the Third Department's Hm1
ruling. Based on said review, the Court is compelled to conclude that the Third Department
reviewed the entirety of the underlying SEQRA record and held that respondent Planning Board
had satisfied all procedural and substantive SEQRA requirements. The Court finds the Hart
ruling to be wholly dispositive of all SEQRA issues raised by petitioner herein. Accordingly, the
Court fmds that the petition must be dismissed and the relief requested therein denied as to all
SEQRA related claims.
Public Hearing Adequacy
The parties appear to be in agreement that the first 20 minutes of the public hearing were
not available on livestream. However, the hearing was broadcast on two separate cable Public
Access channels and the entirety of the hearing is still available on respondent Town of
Guilderland's website. Respondents maintain that every individual who wanted to participate in
the public hearing and provide their comments was able to do so freely and successfully. In light
of all the measures in place to open this hearing up to the public, the Court has not been
persuaded that respondents' actions/inactions over the opening 20 minute time period constitute a
violation of Public Officers Law § 103. Accordingly, the Court finds that the petition must be

3 of 5
 INDEX NO. 9074~1-20
IFILED: ALBANY COUNTY CLERK 10/08/2021 12:31 Pij
RECEIVED NYSCEF: 10/08/2021
NYSCEF DOC. NO. 70

dismissed and the relief requested therein denied as to all challenges to the public hearing.
Plannin~ Board Quorum
The Court has reviewed this argument and the relevant submissions and determines that
respondent Planning Board had a quorum, as required by State and Local statutes, at the time the
relevant determinations were rendered. Accordingly, the Court finds that the petition must be
dismissed and the relief requested therein denied as to all challenges to the composition of
respondent Planning Board.

Petitioner's remaining arguments and requests for relief, have been considered and found
to be lacking in merit

Based upon the foregoing it is hereby

ORDERED and ADJUDGED that the relief requested in the petition is denied in all
respects and the petition is dismissed.

SO ORDERED AND ADJUDGED.

This shall constitute the Decision, Order and Judgment of the Court. This Decision,
Order and Judgment will be forwarded to the Albany County Clerk by the Court. A copy of the
Decision, Order and J~dgment is being forwarded to counsel for all parties. The signing of this
Decision, Order and Judgment and delivery of the same to the County Clerk shall not constitute
entry or filing under CPLR 2220. The respective counsel for the respondents is not relieved from
the applicable provisions of that rule with respect to filing, entry, and notice of entry of the
Decision, Order and Judgment. As this is an E-FILED case, there are no original papers

4 of 5
 INDEX NO. 9074~1-~0
IFILED: ALBANY COUNTY CLERK 10/08/2021 12 - 31 ~ •
NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 10/08/2021

considered for the Court to transmit to the County Clerk.

ENTER

Dated: Albany, New York

October 7, 2021

Roger D. McDonough
Acting Supreme Court Justice

Papers Considered2: ~.~ 10/08/2021

1. Notice of Petition, dated November 27, 2020;
2. Verified Petition, dated November 25, 2020, with annexed exhibits including multiple
affidavits;
3. Pyramid respondents' Answer, dated January 15,2021, with annexed transcripts;
4. Affidavit of Michael Bontje, sworn to January 14,2021, with annexed exhibits;
5. Affidavit of Kenneth Kovalchik, sworn to January 15, 2021, with annexed exhibits;
6. Affrrmation of Robert S. Rosborough, IV, Esq., dated January 15,2021, with arutexed
exhibits;
7. Guilderland respondents' Answer, dated January 14, 2021;
8. Affidavit of James P. Melita, Esq.t sworn to January 14, 2021;
9. Correspondence from Robert S. Rosborough, IV, Esq.t dated July 8, 2021, with annexed
exhibit; .
10. Correspondence from Todd D. Ommen, Esq., dated July 12, 2021;
II. Correspondence from Robert S. Rosborough, IV, Esq., dated July 14,2021;
12. Correspondence from James P. Melita, Esq., dated July 16~ 2021.

2
The parties also submitted memoranda of law in support of their respective
positions_

5 of 5