FILED: APPELLATE DIVISION - 3RD DEPT 09/12/2023 09:24 AM CV-23-1696

NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/12/2023

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : THIRD DEPARTMENT
__________________________________________________________
)
THOMAS HART, LISA HART, and 1667 WESTERN AVENUE, LLC, )
)
Petitioners, ) VERIFIED PETITION
-against- )
) Index No.
TOWN OF GUILDERLAND INDUSTRIAL DEVELOPMENT )
AGENCY, TOWN OF GUILDERLAND, CROSSGATES )
RELEASECO, LLC, GUILDERLAND DEVCO, LLC, GRACE WU, )
BRIAN TRUONG and TSZ KEUNG ENG, )
Respondents. )
)

Petitioners by their attorney respectfully allege as follows:

1. This original special proceeding is brought pursuant to Eminent Domain Procedure Law

(“EDPL”) § 207 for judicial annulment of the August 22, 2023 determination and findings

(Findings) of respondent Town of Guilderland Industrial Development Agency (IDA) as to the

acquiring by eminent domain certain public roads, property and infrastructure, including Lawton

Terrace, Tiernan Court, Rielton Court and Gabriel Terrace and extinguish deed restrictions

(Property) which would otherwise prevent commercial development in the Gabriel

neighborhood, in the Town of Guilderland (Town) to allow the development of a members-only

Costco retail warehouse and fueling facility by Pyramid Management Corporation and its

subsidiaries, primarily Crossgates Releaseco, LLC (collectively Pyramid).

2. Petitioners seek to annul the IDA’s Findings because, 1) the IDA’s determination was

premature as an action in Albany County Supreme Court is pending to determine whether the

proposed Costco is consistent with the Town’s zoning code, and 2) condemnation for a

members-only retail use does not meet the state constitutional and EDPL requirements of serving

a public purpose, and 3) the IDA failed to comply with Environmental Conservation Law Article

1
8, and the State Environmental Quality Review Act (SEQRA) regulations and 4) the IDA’s

Findings do not comply with the General Municipal Law (GML).

THE PARTIES

3. Respondent IDA is the condemnor which issued Findings authorizing it to take the

Property by eminent domain and has offices at 5209 Western Turnpike, Guilderland, New York.

4. Respondent Town owns Lawton Terrace, Rielton Court, Tiernan Court and Gabriel

Terrace, along with their 60-ft. rights of way and subsurface water and sewer infrastructure,

located to the north of Western Avenue and east of Crossgates Mall Road, (Gabriel

neighborhood) in proximity to Pyramid’s proposed development of Sites 1, 2 and 3. Exhibit 1.

The Town maintains offices at 5209 Western Turnpike, Guilderland, New York.

5. Respondent Crossgates Releaseco, LLC, is a subsidiary of Pyramid and is either the

record owner, or controls many, if not all, of the tax parcels that comprise Site No. 2, excepting

Town-owned roads and is seeking development of a Costco at Site No. 2.

6. Respondent Crossgates Devco, LLC owns a number of tax parcels within Site No. 2.

7. Respondents Grace Wu, Brian Truong and Tsz Keung Eng own property within Site No.

2 at 8 Rielton Court, Guilderland, New York (Tax Parcel No. 52.14-1-27).

PETITIONERS’ STANDING

8. Petitioners Thomas and Lisa Hart live in their home at 5 Westmere Terrace in

Guilderland. The Harts will be negatively impacted by the noise and dust created by

construction of the proposed Costco as their property is directly across the street from Site 2,

approximately 245 feet from the curb where Pyramid proposes to develop Costco’s fueling

facility. See Hart Affidavit herewith as Exhibit 5.

2
9. Petitioner 1667 Western Avenue, LLC owns 0.7 acres of property at 1667 Western

Avenue in Guilderland which is improved with a Mobil gasoline station and a 1906 sq. ft.

convenience store. Petitioner’s property is in proximity to the proposed Costco and petitioner’s

deed includes provisions and/or rights which will be nullified by the IDA’s Findings.

10. Moreover, once operational, the proposed Costco at Site 2 will impact community

character and services to the degree where the Mobil station and convenience store will likely

have to abandon the site significantly devaluing 1667 Western Avenue, LLC’s property.

JURISDICTION, VENUE AND DEMAND FOR THE RECORD

11. This Court has jurisdiction pursuant to EDPL § 207.

12. The time within which to commence this proceeding has not expired.

13. Venue lies in this Court pursuant to EDPL § 207 because the Property is located is the

Third Department of the Appellate Division.

14. Pursuant to EDPL §207(A), on September 8, 2023, petitioners served a Demand on the

IDA to file a copy of the written transcript of the record of the proceeding before the IDA and a

copy of the Findings with this Court. Copies of the Demand and Affidavit of Service are

included herewith as Exhibit 2.

STATEMENT OF FACTS

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

commercial uses in Guilderland.

16. While the Findings claim “the use and character of the area… consists primarily of

business and commercial use” the Westmere Terrace and Gabriel neighborhoods are purely

residential and are immediately adjacent to the Crossgates Mall. Exhibit 1.

3
17. The Gabriel neighborhood consisted of 20 homes, primarily built in the 1950s and 1960s,

and the area is relatively quiet with little traffic. Though the home at 3 Lawton Terrace no

longer exists, there remain 19 homes - 8 homes on Gabriel, 5 homes on Rielton, 5 homes on

Lawton and one home on Tiernan.

18. As the following photographs1 dated July 2011 show, the 20 original Gabriel homes were

well cared for and represented a beautiful neighborhood, with paved driveways, manicured

lawns, hedges, stonework and ornamental trees, including Japanese and Crimson Maples.

(Assessed values are shown from the 2023 tax roll):

1 and 3 Gabriel Terrace

$223,529 and $350,588

2 and 4 Gabriel Terrace

$474,118 and $274,118

1
The photographs are from google maps from July 2011 at https://www.google.com/maps/
@42.6891574,-73.8563635,3a,59.4y,216.08h,89.26t/data=!3m7!1e1!3m5!1s
_c1BE0Qr_fEIr9xqirC2AQ!2e0!5s20110701T000000!7i13312!8i6656?entry=ttu.
4
 5 Gabriel Terrace $316,471

7 Gabriel Terrace $309,412

8 Gabriel Terrace $445,892

9 Gabriel Terrace $382,353

2 Rielton Court $198,824

5
 4 Rielton Court $272,941

5 Rielton Court $361,176

6 Rielton Court $210,588

3 Lawton $42K (now vacant lot)

5 Lawton Terrace $217,647

6
 7 Lawton Terrace $240,000

9 Lawton Terrace $292,941

14 Lawton Terrace $320,000

16 Lawton Terrace $325,882

7
 1 Tiernan Court $282,353

19. The total of the 2023 assessed value of these 19 properties is $5,540,833.

20. Westmere residents still bring their children to this neighborhood for walking and

bicycling. See Affidavits of Hart and McDonald, Exhibits 5 and 6.

21. As a result of Crossgates Mall’s negative traffic impacts, in late 2016, Guilderland issued

the Westmere Corridor Study (WCS) which recommended a Transit Oriented Development

(TOD), overlay, to encourage mixed-use, non-auto dependent development:

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).

22. On May 14, 2018, the Albany County Planning Board, (ACPB), reviewed the proposed

TOD and urged protection of adjacent neighborhoods:

With the understanding that the Town of Guilderland aims to encourage more
compact development and mixed uses in this zone with these provisions, the
Board also encourages the Town to consider potential impacts to this existing
[Gabriel Terrace] residential neighborhood.

Exhibit 3.

23. Pyramid stated it would use zoning overlay for residential and mixed use development:

[T]his town-wide initiative helps Crossgates Mall, which is a major employer and
tax revenue generator for the county and town. Crossgates is forced to look at

8
 doing business in a different way; the TOD will help to create a mixed
“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 3, May 14, 2018 Pyramid statement to the Albany County Planning Board.

24. On June 5, 2018, the Town Board adopted the TOD law:

…to support and incentivize development that adequately protects nearby

residential neighborhoods… 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, emphasis added.

25. However, Pyramid did not intend to use the TOD for mixed use development. Instead,

Pyramid’s 2017 site plan shows a single retail use – a Costco - to replace the entire Gabriel

neighborhood. Exhibit 4.

26. In fact, using subsidiaries and non-disclosure agreements to shield its development plans,

Pyramid had been acquiring Gabriel neighborhood properties for years. See Exhibit 5 at ¶3.

27. However, while the non-Pyramid owners maintained their homes, Pyramid did not.

28. Specifically, the homes at 8 Rielton Court, owned by the Wu, Truong and Keung

defendants and the Desch homr at Lawton Terrace and Western Avenue are well cared for:

8 Rielton Court (2023).

9
 Lawton Terrace/Western Ave. (2022).

29. By contrast, Pyramid has failed to maintain landscaping and allowed Gabriel

neighborhood homes to fall into disrepair.

30. As an example, 2 Rielton Court was a well-kept and desirable home in 2011:

31. However, Ms. Hart’s September 6, 2023 photograph of 2 Rielton Court shows Pyramid’s

failure to maintain the premises:

September 6, 2023.

32. The reason for the neglect is now obvious. Pyramid ceased maintenance of the

neighborhood in order to now argue the area is blighted to support its bid for condemnation.

10
33. However, Pyramid’s neglect is a continuing violation of Town Code Chapter 220 which

requires owners to maintain their property. Chapter 220 states:

The purpose of this article is to remedy problems caused by abandoned and vacant
buildings, foreclosed properties and properties in foreclosure, including a decline in
property values and tax base, and negative impacts on the quality of life for neighboring
residents and businesses. This article establishes regulations for the registration,
inspection, maintenance, and securing of such buildings and properties.

The property and building shall be maintained in good repair, be structurally sound and
free from overgrown vegetation, rubbish, garbage, and other debris… [and]

All bushes, trees, and landscaping shall be trimmed of the perfectly functioning roads in
the Gabriel neighborhood.so as to provide an unobstructed view of the front of the
building and 911 address from the street.

Guilderland Code at §220-7(A)(3) and (9).

34. Had Pyramid complied with the law, every Gabriel neighborhood home would be

properly landscaped and maintained as they were in 2011.

35. Troublingly, not only has the Town utterly failed to enforce its Code to require upkeep

of the Gabriel neighborhood, the Town has become Pyramid’s development partner by spot

zoning properties and transferring Town property to Pyramid upon request.

36. For example, at the end of 2016, Pyramid claimed it had “no plans to build a hotel.” But

three months later it filed detailed plans for a 5-story 192-unit hotel with 192 parking. See July

18, 2019, Altamont Enterprise article included with the Hart Affidavit at Exhibit 5.

37. By June 2017, the Town had rezoned the property to allow the hotel, granted subdivision

and site plan approval and abandoned Lehner Road and conveyed it to Pyramid at no cost.

38. And, deceitfully, while Pyramid promised to use the TOD for mixed use development it

had already completed plans to develop Site 2 with a Costco months earlier. See Exhibit 4,

1/2/18 “Exploration Location Plan” referencing “Concept Plan SK-2 Revised” dated 11/1/17.

39. Through 2018, unknown to the public, Pyramid completed additional plans for a Costco:

11
• 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.

40. In November 2018, Pyramid filed plans for Site 1 and when asked about developing Site

2, (for which Pyramid had already drafted a Costco plan), Pyramid stated “that’s not a point of

focus at the moment.” Exhibit 5 Hart Affidavit with news article dated July 18, 2019.

41. Thus, the Environmental Assessment Form, (EAF), dated November 19, 2018, did not

identify plans for Sites No. 2 or 3 and did not identify that Pyramid would seek the IDA to use

condemnation proceedings to take Town property and remove deed restrictions.

42. In fact, using the IDA for condemnation was not disclosed until more than four years

later on March 22, 2023, representing classic improper segmentation contrary to SEQRA.

43. Yet Pyramid admitted that segmentation was its preferred procedure:

Shanley said Pyramid has other development ideas for land around the ring
road, but he declined to describe them, saying that the company prefers to
bring one plan to completion — or wait until “it's received all the approvals” — before
moving on to the next.

See Exhibit 5 Hart Affidavit with news article dated November 30, 2018.

12
44. Similarly, despite Pyramid’s completion of many planning documents for a Costco in

2017 and 2018, Pyramid told neighbors it had “no other plans” to develop any other site except

Site 1. Exhibit 6 McDonald Affidavit at ¶17.

45. The ACPB recommended2 denial of the Site 1 project due to the conflict with the TOD:

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 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.

46. Then, according to James Soos, Pyramid’s Director of Development:

In approximately May of 2019, when the RRD [Site No. 1] application was nearing
completion… 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.

Exhibit 7 at ¶18.

47. The Town then concealed Pyramid’s Costco plans from the public and other SEQRA

involved agencies for more than six months.

48. On May 13, 2019, the ACPB again issued an opinion that the large-scale single-use

development was incompatible with the TOD’s mixed-use purposes.3

49. In October 2019, the Planning Board issued a scoping document indicating Sites 2 and 3

were to be developed.

2
The ACPB minutes of March 21, 2019 were provided to the IDA as part of its proceedings and
should be in the record to be filed with the Court.
3
This document was provided to the IDA as part of its proceedings and should be in the record
to be filed with the Court.
13
50. Like the SEQRA positive declaration, the scoping document did not mention Costco and

did not disclose that Pyramid would use the IDA to condemnation the Property.

51. Only after close of the scoping comment period, (on November 15, 2019), did Pyramid

reveal its plans for a Costco by filing a special use permit application.

52. Mr. Soos signed the owner’s certification, claiming he was “duly authorized in writing by

the owner of record to make this application.”

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

Absent from the list were the Town’s roads.

54. Indeed, Town had not authorized Pyramid to propose to develop Town roads.

55. On December 23, 2019, petitioners’ counsel requested that the Draft Environmental

Impacts Statement (DEIS) include a retail market analysis evaluating business displacement like

the one Costco hired Ferrandino & Associates, (F&A), to complete for Costco in Yorktown, NY.

56. 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 impacts on

neighboring gasoline retailers.4

57. During the DEIS comment period, though Pyramid was aware that Site 2 could support

summer roosting for threatened bat species, Pyramid clear cut 5.2 acres of woodlands west of

Lawton Terrace prompting petitioners to commence a proceeding wherein the Court 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…. 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

4
This document was provided to the IDA as part of its proceedings and should be in the record
to be filed with the Court.
14
 decided to fell trees on multiple acres of land. At a pre-motion 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. … 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 US Dist. LEXIS 139496

(NDNY Aug. 5, 2020) at footnote 9.

58. On May 4, 2020, the ACPB issued a “disapproval” letter due to Costco’s “significant

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

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.5

59. Despite the denial, the Guilderland Planning Board approved the project though its

SEQRA findings did not mention anything about condemnation proceedings.

60. Petitioners brought a successful action in Albany County Supreme Court to annul the

SEQRA findings. See 77-page decision by Hon. Peter A. Lynch at https://iapps.courts.state.ny.us

/nyscef/ViewDocument?docIndex=HDjsP3IL99pCVkWuyvbFIw== (Lynch Decision).

61. Justice Lynch ruled destruction of the Gabriel neighborhood was incompatible with the

TOD:

While single-family and two-family dwellings are prohibited (Ordinance §280-18.1 (E),
existing residential neighborhoods are to be protected.

Next, the project sponsor made the following statement, “Single family dwellings are
prohibited uses in the TOD.” This statement is false; the existing homes along the

5
This document was provided to the IDA as part of its proceedings and should be in the record
to be filed with the Court.
15
 Lawton Avenue neighborhood are permitted as legal nonconforming uses. What
consideration did the project sponsor give to maintaining these homes (i.e. protecting the
neighborhood in accord with the TOD mandate) on part of Site 2 and redeveloping the
balance of the site? None.

Here, community character was established, in part, by the enactment of TOD, with the
intent to protect existing neighborhoods. One means to accomplish that goal was to
promote non- automobile-oriented modes of transportation. In stark contrast with that
legislative intent, the Site 2 project calls for the physical destruction and removal of all
homes within the Lawton Terrrace neighborhood.

The Planning Board effectively ignored the intent of the Ordinance and turned a
blind eye to the destruction of the relevant neighborhoods, all to authorize a mass
retailer that will promote automobile modes of transportation.

Lynch Decision at 41, 64-65 and 73-74.

62. However, the Appellate Division found the Planning Board had taken a “hard look” at

SEQRA issues and reversed Justice Lynch.

63. On March 8, 2023, Pyramid filed a condemnation application with the IDA.

64. The IDA application for the first time disclosed Pyramid sought to condemn the Gabriel

neighborhood roads.

65. The proposed condemnation would also remove deed restrictions and reciprocal rights of

owners adjacent to the Costco site to enforce those restrictions to prevent commercial

development, to wit: “[p]ortions of the Site are currently encumbered by deed restrictions that

purport to prevent their development for commercial use.”

66. Despite Pyramid touting “a record extending to 3,000+ pages,” no party had ever

disclosed that condemnation would be used to advance the Costco project in any of the SEQRA

or special use permit proceedings or in any of the documents circulated to involved agencies.

67. Pyramid’s IDA application also included a report from Camoin Associates

dated 8/11/2022 entitled “Project Benefits Development of Costco at Crossgates Site.”

16
68. Conspicuously absent from that report is any information on Costco’s impacts on local

retailers, especially gas station owners.

69. However, during the administrative proceedings, petitioners had made it clear that a

Costco would put neighboring gasoline stations out of business. See Affidavits of Calvin filed

with the IDA and Kaplan Affidavit herewith at Exhibit 8.

70. On March 28, 2023, Pyramid appeared before the IDA seeking financing, condemnation

of Town property and extinguishment of “any rights or interests to enforce the Purported Deed

Restrictions” preventing commercial development in the Gabriel neighborhood.

71. Despite a failure to comply with Town Law section 267-a(7), the ZBA held a public

hearing on April 19, 2023 on Pyramid’s special use permit application.

72. Neither Pyramid nor the ZBA mentioned Pyramid using the IDA’s condemnation powers

to facilitate the project. See video at https://play.champds.com/guilderlandny/event/269.

73. On May 3, 2023, the ZBA granted Pyramid’s special use permit application again

mentioned nothing about the IDA condemning the Property.

74. Petitioners then sought annulment of the special use permit and are awaiting a decision

from Supreme Court Justice Christina Ryba.

75. The Harts and petitioners’ counsel attended the IDA’s meeting of May 31, 2023, filed 20

pages of comments with Exhibits A-H and presented testimony.

76. Petitioners noted the Gabriel neighborhood was not abandoned, the project did not

conform to the TOD and was a misuse of the IDA’s powers since the project did not serve a

public purpose. Moreover, the proposed taking of the Property was unconstitutional and

Pyramid’s claim that the Gabriel neighborhood was blighted was entirely self-created. Petitioners

also questioned why Pyramid/Costco could not purchase the Town Roads rather than obtaining

17
them by eminent domain noting that Pyramid’s strategy amounted to an “end run” around Town

Law permissive referendum provisions.

77. On June 20, 2023, petitioners provided a second letter to the IDA requesting the IDA

postpone action until the Albany County Supreme Court issued a determination on the Article 78

challenge of the special use permit.

78. However, on August 22, 2023, the IDA took action and adopted Findings agreeing to use

eminent domain to take the Town Roads and extinguish any and all deeded rights of the

neighbors that were designed to prevent commercial development of the Gabriel neighborhood.

79. Petitioners are aggrieved by said determination which is contrary to law as follows.

FIRST CLAIM FOR RELIEF

The Proposed Acquisition is premature as Albany County Supreme Court has not ruled on the
project’s compliance with the Guilderland Zoning Code

80. Petitioners repeat and reallege the allegations contained in all of the preceding paragraphs

with the same force and effect as if fully set forth herein.

81. On June 5, 2023, petitioners commenced Thomas Hart et al v. Town of Guilderland

Zoning Board of Appeals et al, Albany County, Index No. 904771-23 (Hon. Christina L Ryba),

challenging the special use permit granted to Pyramid.

82. The petition, if sustained, would prevent the development of a Costco at Site 2.

83. Therefore, the IDA’s August 22, 2023 determination that the project conformed with the

Town’s zoning code was premature and its determination and findings must be annulled.

SECOND CLAIM FOR RELIEF

The Condemnation Violates the New York State Constitution and
EPDL Public Purpose Requirements

84. Petitioners repeat and reallege the allegations contained in all of the preceding

paragraphs with the same force and effect as if fully set forth herein.

18
85. Section 6 of Article 1 of the New York Constitution provides that “no person shall

be deprived of life, liberty or property without due process.”

86. Section 7 of Article 1 of the New York Constitution provides that “[p]rivate property

shall not be taken for public use without just compensation” and the state constitution and EDPL

§207(B) provide that property rights cannot be taken without a legitimate good-faith “valid

public purpose.” “public use, benefit or purpose.” See EDPL §207(C) and Matter of Jackson v.

New York State Urban Dev. Corp., 67 NY2d 400, 418 (1986).

87. There may be an incidental private benefit to a private company so long as there is

a dominant public purpose, and an incidental public benefit coupled with a dominant private

purpose will invalidate a condemnation.

88. Thus, the private benefit must not be dominant.

89. Here, what is the claimed public benefit? Shopping at a members-only retailer.

90. Thus, the Property is not being taken for a “public purpose.”

91. The private benefit to Pyramid is clearly dominant and demolishing the Gabriel

neighborhood with a “members-only” Costco replacement is not in good faith nor is it a “public

project” as defined by EDPL §103(G) and is contrary to the WCS, TOD overlay, the state

constitution and case law.

92. As above, rather proceed in good faith, Pyramid:

 Used non-disclosure agreements to conceal its purchase of residential homes;

 Lied to the ACPB that it would use the TOD to build mixed use development;
 Concealed its Costco plans from the public for two years;
 Lied to residents that it had no other development plans other than Site 1;
 Filed land use applications to develop Town property without authorization;
 Cut down woodlands during the SEQRA process violating 6 NYCRR §617.3;
 Purposely neglected the Gabriel neighborhood violating Town Code Chapter 220;
 Concealed condemnation plans until after planning/zoning reviews were complete;
 Is using eminent domain to avoid Town Law §§64 and 90 permissive referendum.

19
93. Most significantly, Costco is not a “public project” as defined by EDPL §103(G).

94. Costco and its fueling facilities are not open to the public, a fact the IDA’s Findings do

not disclose. Costco is a strictly private “members-only” facility.

95. Fatal to the legality of the Findings is that the constitutional public purpose requirement

may not be illusory. An ostensible public purpose that is a pretext for a private benefit is

insufficient and unlawful.

96. Respondents argue that Costco will add economic value that is a public benefit.

97. However, the IDA failed to consider the value of the loss of the Gabriel neighborhood.

98. The assessed value of the 19 homes is over 5.5 million dollars.

99. What is value of the 830 foot Lawton Terrace, 419 foot Tiernan Court, 600 foot Rielton

Court and 707 foot Gabriel Terrace and rights of way which total approximately 2.7 (13.75% of

Site 2) and the associated value of the sewer and water infrastructure? The IDA did not say.

100. Clearly, the replacement cost of ½ mile of residential roads with complete water and

sewer infrastructure is in the tens of millions of dollars.

101. And, what is the value of the loss of a middle class/blue collar neighborhood? No

volunteers to join the PTA, fire department and auxiliary groups that make up the fabric of the

community. Fewer adults and children to lead or join boy scouts, girl scouts, sports teams and

school groups. The IDA did not quantify or consider that lost value which can never be replaced

by a single big box retail use.

102. And, what about the loss of affordable housing? Again, there is no analysis. That loss is

contrary to the goals of the Town’s Comprehensive Plan.

103. In sum, the IDA claims a public purpose that is in truth a dominant private benefit for

Pyramid and its members-only Costco.

20
104. Further, the condemnation will not result in any benefit to the public that would not

be obtained absent the condemnation because the Crossroads Mall offers the same products

offered by Costco with the distinction that the Mall’s products are for sale to the general public.

105. Most disingenuously, the Findings state:

The Project Site consists of principally vacant, former single family homes, and the Town
Roads that have been previously discontinued. Portions of the Project Site have sat vacant
for approximately forty (40) years and the parcels contain significant plant overgrowth,
varying levels of property damage, and hazards such as fallen trees and fencing.

[T]he Project Site can no longer be used as a residential area given certain zoning and
other changes made in the Town…

The Acquisition is designed to address stagnation, underutilization, underdevelopment,

and vacant properties. The existing properties are kept in a poor condition. Surrounding
properties are negatively affected. Addressing stagnation, underutilization, and
underdevelopment will be a benefit to the community.

106. The Findings are false.

107. First, the period of Pyramid’s intentional neglect was not 40 years but only a matter of a

few years as proved by the above photographs of the Gabriel neighborhood homes.

108. Second, the neighborhood can and is being used as a residential area, as proved by the

use of the homes at 8 Rielton Court and at the corner of Lawton and Western Avenue.

109. Third, the underlying cause of stagnation is Pyramid’s intentional depopulation and

neglect of a once beautiful middle class neighborhood in violation of Town Code §220-7(A)(3)

and (9).

110. In fact, each day of Pyramid’s failure to maintain each of its 18 homes is a separate

violation of law punishable by a fine of $100. Town Code §220-8.

111. And, if maintained, the neighborhood remains a viable and desirable place to live as the

Town continues to maintain and plow snow from Rielton Court and U.S. mail, oil and other

products and necessities continue to be delivered to 8 Rielton Court.

21
112. Moreover, the sewer lines and water lines beneath Gabriel neighborhood roads are

perfectly functional having been funded by Town taxpayers for more than 50 years and

maintained by the Town.

113. The only factor preventing habitation is Pyramid’s choice not to rent the homes and

illegally failing to maintain the properties.

114. Regarding zoning compliance, petitioners are awaiting a decision by Justice Ryba, but

Justice Lynch was correct in stating “the project flies directly in the face of the TOD requirement

that existing neighborhoods be protected, that intense development be kept away from those

neighborhoods, and that development which utilizes non-automobile modes of transportation be

encouraged. (Zoning Ordinance §280-18.1).” Lynch decision at 36.

115. Finally, the IDA’s condemnation is an illegal end run avoiding a permissive referendum

which would ordinarily be required pursuant to Town Law §§64(2), 90 due to the alienation of

Town properties.

116. For all the foregoing reasons, the condemnation is not in conformity with the state

constitution and the EDPL and the Court should reject and annul the IDA’s Findings.

THIRD CLAIM FOR RELIEF

The IDA Failed to Comply with SEQRA

117. Petitioners repeat and reallege the allegations contained in all of the preceding

paragraphs with the same force and effect as if fully set forth herein.

118. The IDA was required to comply with SEQRA’s implementing regulations 6 NYCRR

Part 617 (EDPL § 207[C][3]).

119. SEQRA’s requirements mandate strict compliance, and anything less will result in

annulment of an agency’s determination. Literal compliance with the letter and spirit of SEQRA

is required.

22
120. SEQRA requires an agency such as IDA in determining the significance of an

action to thoroughly consider the criteria in 6 NYCRR § 617.7.

121. An agency must analyze alternatives and seek to avoid or minimize adverse impacts.

122. The agency must take a “hard look” at all the factors in 6 NYCRR Part 617 by

identifying relevant areas of concern, thoroughly analyzing those concerns, and then fully

documenting its findings with a reasoned elaboration for the action.

123. Here, the IDA failed to comply with SEQRA in adopting its Findings.

124. Specifically, the Findings claim “[t]he Project will not compromise the use and

enjoyment of other property in the immediate vicinity, nor substantially diminish and/or impair

property values within the neighborhood.”

125. This conclusory statement is unsubstantiated by the record.

126. First, the IDA’s SEQRA duty was to examine potential business displacement, because

case law demands that review, Matter of Wellsville Citizens for Responsible Dev., Inc. v Wal-

Mart Stores, Inc., 140 A.D.3d 1767, 1770 (4th Dept 2016).

127. Reliance on the Planning Board’s SEQRA review is insufficient because the Planning

Board dodged the question claiming Costco’s impact on existing businesses “depends on a

myriad of unknowable variables” impossible to quantify, (FEIS at 127) and that “economic

consequences and competition are not environmental factors.” SEQRA findings at pg. 28.

128. However, the record contains proof that economic factors and consequences from a

Costco can be analyzed and quantified since Costco hired F&A in 2015 to prepare that exact

study for its proposed Costco in Yorktown, NY and that report is in the record.

23
129. Specifically, the F&A 2015 report categorized and discussed market areas, consumer

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

proposed Yorktown Costco, precisely the examination that the IDA should have conducted.

130. However, like its predecessor agencies upon which it relies, the IDA dodged examining

whether Costco would diminish nearby property values, especially petitioner 1667 Western

Avenue’s property upon which a gasoline station/convenience store is sited.

131. Second, the IDA failed to examine alternatives – specifically concerning the new issue of

condemnation. This issue was never disclosed in the project’s EAF, positive declaration,

scoping document, DEIS, FEIS or findings statement and never disclosed to any other involved

agency, the general public or the ACPB.

132. Significantly, consideration of alternatives, “has . . . been characterized as the heart of

the SEQRA process,” Matter of Shawangunk Mountain Envtl. Assn. v Planning Bd. of Town of

Gardiner, 157 AD2d 273, 276 (3rd Dept 1990), and the New York State Department of

Environmental Conservation has referred to an alternatives analysis as “one of the fundamental

objectives” of SEQRA. In re Pyramid Crossgates Co. (DEC Comm’r Decision, Sept. 18, 1981).

133. Here, the IDA examined no alternatives in its 100% reliance upon the Planning Board’s

SEQRA review and findings.

134. However, condemning the Property was not proposed until March 8, 2023, 30 months

after the Planning Board issued its August 28, 2020 SEQRA findings.

135. Thus, petitioners specifically raised the issue at the IDA’s May 31, 2023 public hearing

as to whether rather than condemning the property, Costco, a $37 billion dollar company, could

purchase the Property as an alternative.

24
136. Petitioners further noted that a reason for the IDA and Pyramid refusing to consider

purchasing the Town Roads was to bypass provisions of Town Law §90 whereby the public

could challenge transfer of the Town property by a permissive referendum.

137. Pyramid’s strategy is consistent with its prior practice of keeping the public in the dark as

to its development plans and partnering with Town government in secret, strategies which are an

anathema to SEQRA. Merson v McNally, 90 NY2d 742 (1997).

138. Additionally, the Findings state “[a]s part of the TOD, the Project Site is within walking

distance of a rapid transit service (BRT) bus stop and adjacent to other destinations that attract

high volumes of people, such as the Crossgates Mall.”

139. However, as noted by Justice Lynch (and uncontradicted by the Appellate Division) “the

record does not sustain any claim that Costco customers will utilize public transportation” and

the IDA’s record remains devoid of such evidence.

140. Thus, the IDA failed to comply with SEQRA’s “hard look” requirement and pursuant to

EDPL §207(C)(3) its Findings must be annulled as arbitrary, capricious and an abuse of

discretion.

FOURTH CLAIM FOR RELIEF

The IDA Failed to Comply with the GML

141. Petitioners repeat and reallege the allegations contained in all of the preceding

paragraphs with the same force and effect as if fully set forth herein.

142. As noted in petitioners comments to the IDA, the GML requires that projects shall be “in

compliance with the local zoning and planning regulations and shall take into consideration

regional and local comprehensive land use plans.” GML §§858(4), 909-a.

143. No prior agency has reviewed the Comprehensive Plan’s recommendations for the

Costco site.

25
144. Specifically, the Guilderland Comprehensive Plan pinpoints the Costco site stating:

Commercial development in neighborhoods should be limited to a corner store that is

linked to a sidewalk or trail system. In existing neighborhoods, this can be accomplished
through dialog with the business establishments and during the local review process for
changes in use [At pg. IV-16]…

Any policies to facilitate redevelopment should focus on the following goals:

 minimize frictional traffic congestion on Route 20,

 preserve the general scale and character of existing structures, and
 adequately buffer the use from adjoining residential properties [At pg. IV-20]…

Zoning changes that would permit additional large-scale retail development in the
area should be avoided…

Any proposed commercial development in the Gabriel Terrace residential

neighborhood should be supported only with the consensus of the residents.
[At pg. IV-22]

See https://www.townofguilderland.org/sites/g/files/vyhlif7546/f/uploads/chapter_4_-

_plan_recommendations.pdf, Emphasis added.

145. And, Costco is in direct conflict of the Town’s Comprehensive Plan which promotes

affordable housing. Instead of offering replacement residential uses, Costco’s single business

will eliminate what was once a beautiful, thriving middle class neighborhood.

146. The IDA gave no examination of the Town’s Comprehensive Plan, did not mention the

status of affordable or workforce housing and did not mention the loss of the Gabriel

neighborhood and how that loss affects the current stock of housing in Guilderland.

147. Further, incorporated by reference are all of the above arguments concerning Costco’s

incompatibility with the WCS and TOD and petitioners note the zoning question is pending

review by the Albany County Supreme Court.

26
148. Nonetheless, briefly stated, 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.” WCS at pg. 62-64.

149. Costco is a single business use with 700 parking spaces and a 160,000 sq. ft. big box

retail store. There is no mixed-use, integration of street designs or connections and no “ringing

the mall with smaller businesses creating more of a streetwall effect with community scaled

street connections.” WCS pg. 64.

150. Thus, use of Site 2 as a Costco simply cannot be reconciled with the Comprehensive

Plan, the WCS and the TOD.

151. Further, GML §862(2)(a) states, “…no financial assistance of the agency shall be

provided in respect of any project where facilities or property that are primarily used in making

retail sales…”

152. Here, Pyramid’s economic study by Camoin 310, dated October 2019, was prepared for

the overall project’s SEQRA review and does not address conformity with GML §862(2)(a).

153. For example, Camoin did not identify the “Economic Development Region” as that term

is used in the GML and Costco is not a “tourism destination.”

154. And, even if a Costco could be considered a “tourism destination,” the Camoin report

provides zero empirical data concerning the number of visitors expected from beyond the

unidentified “Economic Development Region.” Without this data it is impossible to determine

whether a “significant number of visitors” would be travelling to Costco.

155. For all the foregoing reasons, , the Court must reject the IDA’s August 22, 2023 Findings

as said determination was “without foundation” and must be judicially annulled. Matter of

Waldo's, Inc. v Village of Johnson City, 74 NY2d 718 (1989).

27
 WHEREFORE, petitioners respectfully request that the Court (1) pursuant to EDPL

§207, SEQRA and the GML, reject and annul the IDA’s Findings, (2) grant petitioners’

attorney’s fees, costs, disbursements and expenses pursuant to EDPL § 702(B), and (3) grant

petitioners such other and further relief as is just and proper.

Dated: September 12, 2023

28
 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 upon 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 the parties as well as writings and publications of the
respondent all pertaining to the allegations in the petition; and the reason this verification is
being made by counsel in lieu of petitioners is that petitioners are not located in the County of
Ulster, which is the County in which petitioners’ counsel maintains his principal office.

Dated: September 12, 2023

Attorney for petitioners

P.O. Box 575
New Paltz, New York 12561
(845) 419-2338
Baconesq@yahoo.com

29