Suit dismissed
Ruling finds town official was within rights to OK clearing
Judge dismisses lawsuit filed in March over the clear cutting of trees from a site where Costco plans to build a new store.
A federal judge dismissed a lawsuit filed in March over the clear cutting of trees from a site where Costco plans to build a new store.
In a ruling Wednesday, U.S. District Court Judge Mae D’agostino concluded that the nearby residents who sued Pyramid Corp. over the tree cutting failed to show that Town Planning Director Kenneth Kovalchik was not within his authority to allow the March 26 harvest. Within hours of getting the go-ahead, crews cleared trees from 2.5 acres of land next to Crossgates Mall.
After residents alerted Town
Supervisor Peter Barber later that day, however, he imposed a cease-and-desist order since the area was supposed to be undergoing an environmental review.
The site, owned by Crossgates Mall owner Pyramid Co., is slated to house a Costco store. Another nearby site is also set to be developed into a 222-unit apartment complex. It would be the first time the wildly popular Costco opened one of its warehouse stores in the Capital Region.
Both sites are next to the mall on Western Avenue.
Residents Thomas and Lisa Hart and Kevin and Sarah Mcdonald as well as Red Kap Sales, which operates a nearby gas station, alleged that Pyramid violated the federal Clean Water and Endangered Species Acts, as well as the state Environmental Quality Review Act, when the trees were cut down.
The plaintiffs were represented by New Paltz lawyer James Bacon. Pyramid was defended by lawyers from the firm Whiteman, Osterman & Hanna. The town of Guilderland was also a defendant.
In her decision, D’agostino noted there are other avenues to go through for such violations of environmental reviews before filing a federal suit.
“We are mindful of the general proscription that federal courts should not become zoning boards of appeal to review nonconstitutional land use determinations by the Circuit’s many local legislative and administrative agencies,” D’agostino wrote.
Pyramid cheered the judge’s ruling.
“We are encouraged by the court’s decision to dismiss the case and rule in favor of the project going forward. Pyramid
Management Group has made every effort to work on a collaborative basis with local planning officials and other stakeholders to pursue this project which will benefit Guilderland and its residents,” the company said in a prepared statement.
A group of residents, including environmentalists, contend that the land, which is ecologically similar to the nearby Pine Bush Preserve, provides critical habitat for a number of species.
The tree cutting at the end of
March stemmed from something of a dilemma regarding environmental regulations.
Cutting isn’t allowed between April 1 and Oct. 31 in areas where Northern long-eared bats are present. That’s because the bats hibernate in caves during winter and take up residence in the area around Crossgates, and other places, in the spring. Cutting down the trees could potentially disturb the bats.
Without the trees, however, it’s unlikely there would be bats present in the summer, which also means that any surveys after the clear-cutting would not show the presence of the creatures.
The bats are listed as threatened under federal Fish and Wildlife law due to the white nose syndrome, a fungus that afflicts the creatures during hibernation. There is an addendum, however, that they are not facing a critical loss of habitat.
Several environmental groups contend their status should be upgraded to endangered, which would provide more habitat and other protections. There has been at least one court decision agreeing with that but the regulations haven’t yet changed.