Moratorium on development urged as trees fall and committee works on future plan

The Enterprise — Michael Koff
These trees were still standing on Thursday, Dec. 29, at the now dead-end of Armstrong Drive where Jason Zappia plans to build a through-road to a new development. Sounds of other out-of-sight trees being felled could be heard on Thursday, distressing neighbors.

GUILDERLAND — In the wake of complaints about illegal logging to make way for a housing development that hadn’t been approved, one Guilderland resident urged the town board on Jan. 3 to set a moratorium as a committee works to update the town’s 20-year-old comprehensive plan.
 Gerd Beckmann, who frequently attends town board meetings, owns, with his wife, the historic Appel Inn on the outskirts of Guilderland Center — in a neighborhood he says has changed. Beckmann listed several new subdivisions underway and the complaints they had engendered.

“Where we are right now I think is at a crossroads with respect to what’s going on in town with regards to the development of the comprehensive plan ….,” said Beckmann. “Let us not lose the rural nature and the beauty that makes up the town of Guilderland.”

Beckmann said he is not against all development but asserted, “The nature of our town is changing.” He cited problems, not just of tree cutting, but of traffic, safety, and water availability.

“This town is changing,” he went on, “and it’s your board members that really are the keepers of what this vision is and what things are going to be in the future of this town.”

Beckmann’s comments were applauded by people in the gallery, many of whom live near the 41-lot proposed subdivision on the outskirts of Altamont where trees have been felled since November.

One of those residents also requested a moratorium, as did Chuck Klaer, another Guilderlander who frequently attends town meetings and lives on Meadowdale Road.

Klaer asked about the law to protect trees that the town board passed in December, and Supervisor Peter Barber responded that a committee will be appointed to develop a forestry plan for the town and then bring that to the town board.

The planning and zoning boards with the town board have the “ability to designate that certain trees should be protected …. If at some point during the development process, that tree was damaged and harmed in some way then the town could in turn get some compensation,” said Barber.

He also said, if the law had been adopted a year ago, it might apply to the current tree-cutting problem but that the law “probably wouldn’t add much more in terms of financial or the ability to get injunctive relief that doesn’t already exist” under state environmental and stormwater regulations.

“But,” responded Klaer, “since we have some vision of the influence and authority of that piece of legislation in one month, two months, three months, then perhaps we ought to give some more weight to what Gerd was just suggesting about having a lengthy enough moratorium to give that law a chance to get some legs underneath it and some procedures and protections rather then let all this destruction take place only to be, ‘Oh, if only we had this in place.’”

Klaer urged, “The moratorium might give us the time to get legs underneath that piece of legislation.”

The neighboring suburban town of Bethlehm had a moratorium on development until it adopted its updated comprehensive plan. And Westerlo, a rural Helderberg town, also in Albany County, adopted a moratorium while it implemented laws recommended by its new comprehensive plan.

On Jan. 3, the Guilderland Town Board listened to extensive resident complaints as it discussed a directive to the planning board to suspend further review of the subdivision proposal and to authorize the town attorney, James Melita, “to bring any request for injunctive relief in the event there are any further violations.”

Councilwoman Christine Napierski said this means, if the logging were to start again, Melita would go to the state’s Supreme Court to have the work stopped since it isn’t known how long it will take the state’s Department of Environmental Conservation to take action.

At the end of the meeting, with all four members present voting in favor, board members, too, received applause. Councilwoman Amanda Beedle was absent because of illness but Councilman Jacob Crawford spoke on her behalf, saying that she shared residents’ concerns about traffic, and impacts on the water table and infrastructure.


Stopping the cutting

Prime Capital Development is proposing the 41-lot conservation subdivision on 159 acres largely off of Route 146 with 36 of the homes accessible from Gun Club Road and the remaining five to be accessed from Armstrong Drive, which would turn the dead-end street into a five-home cul-de-sac. 

Neighbors showed up in December at a Guilderland Conservation Advisory Council meeting to voice objections to the proposal.

Armstrong Drive residents told The Enterprise they heard trees being cut in early November.

A cease-and-desist order was first issued on Nov. 17 to the developer, Jason Zappia of Prime Capital Development, and to Joseph Bianchine, who works for ABD Engineers. A second order was issued on Dec. 15 to the same two men.

While the first order prohibited “any tree cutting” on the proposed subdivision property pending planning board review, the second order noted four potential violations of both town and state regulations.

As the tree-cutting continued, a third order was issued on Dec. 30 to Zappia and Balanchine in Schenectady County; the logging company felling the trees, Savoie Logging and Contracting, based in Fultonville, in Montgomery County; and the property’s owner, the Dorothy Friedlander estate, in Saratoga County

The order lists the same four potential violations as the second order and notes, “On December 29, 2022, the Town became aware the contract with the logging company … is with Richard Friedlander and not Jason Zappia.” Richard is the son of the late Dorothy Friedlander, who owned the land.

The state regulation that the tree-cutting may violate says, “A project sponsor may not commence any physical alteration related to an action until the provisions of SEQR have been complied with.” SEQR is the State Environmental Quality Review process.

The three town subdivision regulations that the tree-cutting may be in violation of include: removing features, such as trees, that would add value to a residential development; removing more trees than necessary to make construction feasible while all other vegetation is to be left in place; and stripping more than 25 percent of its cover from an approved plat.

The town of Guilderland has put up signs on Armstrong Drive and Gun Club Road, announcing its cease-and-desist order.

At the Jan. 3 meeting, Barber, who chaired the town’s zoning board for 16 years before becoming supervisor in 2015, said, “This is actually a first for me; I’ve never seen this happen before.”

For somebody “to come in and to fundamentally alter the character of a land is to me a clear violation of SEQR,” said Barber, calling it uncharted territory for the town.

Barber said of the state’s Department of Environmental Conservation, “DEC is in the process of considering taking their own action so [what] we’d like to do is work in concert with them.”

Barber said the DEC has concerns about stormwater management and the State Environmental Quality Review Act. “We have concerns about illegal tree-cutting and also the SEQR process,” Barber said of the town.

Discussing the town board’s directive to the planning board to suspend review of the application, Barber said, “The bottom line is we don’t really have any firm investigation yet, by qualified people.” But, he said, the town wants to work with the DEC to make sure environmental concerns are dealt with. Both the town planner, Ken Kovalchik, and the town’s planning board chairman, Stephen Feeney, would appreciate it, Barber said, if the town board stopped further review of the application “until these matters are resolved to everybody’s satisfaction.”

Barber went on, “That could take months.”

The point of the board’s resolutions, he said, was to make sure the environment isn’t damaged further. “But also, I think, as importantly is to find out what has happened and then take the appropriate remedies, whether it’s financial or it’s restorative.”

On Tuesday, The Enterprise asked Guilderland’s police chief, Daniel McNally, about reports that a Guilderland Police officer, dispatched while the tree-cutting was ongoing on Thursday, Dec. 29, had not issued a ticket.

McNally said that police could not take action until the cease-and-desist order had been “served on all parties.”

Now that it has, he said, police could enforce it. “We’re in a better spot now,” McNally said, but since the order was served to the four parties on Tuesday, Jan. 3, no more trees have been cut, he said.

Discussions now, McNally said, are centering on removal of the felled trees.


Neighbors' concerns

Donald Drost, who owns a horse farm at 707 Route 146, said 100-year-old trees were being felled for the proposed development.

“The problem is, it’s an aquifer,” said Drost, adding it is “the last source of water in that part of town.”

He also said the loggers illegally put a bridge over a stream, and later said it was the Black Creek, which feeds the Watervliet Reservoir, Guilderland’s major source of drinking water.

“I was out there today,” said Drost on Jan. 3. “I saw the bridge made out of logs. And they’re using heavy equipment, digging in good.”

Ellen Root, who lives at 17 Armstrong, called the massive tree-cutting on Dec. 29 “a tragedy.” She described the sounds of trees being felled and the frustration of not being able to reach anyone to enforce the cease-and-desist orders.

Root also said that northern long-eared bats live in the proposed development area. The United States Fish and Wildlife Service is reclassifying the northern long-eared bat as an endangered species, effective Jan. 30. 

“They may be hibernating now but, if they cut down the trees, they won’t be able to come back to where they used to be,” Root said of the bats.

She also said that one of the plots on the subdivision proposal is designated by the Army Corps of Engineers as wetlands.

Finally, Root noted that, at the Dec. 12 meeting, Zappia had said the trees he was cutting are past their prime.

“Well, I’m past my prime too, but you’re not going to cut me down,” she said.

Root went on, “They may be older trees but the root system holds all that ground together.”

Roy Zwintek, of 15 Armstrong, summarized a letter sent to the town by his neighbor Salvatore Priore, raising concerns about water availability as well as extensive tree-cutting.

“We’re very unclear how this all can be happening back there when, for 50 years, this land has been undisturbed,” said Zwintek. “It’s a great asset to the community.”

Zwintek also said, “A few may benefit from this proposal” but he urged the town to think of the many “people who won’t benefit from this.”

Priore, of 21 Armstrong, said he was disappointed that comments he had submitted in person at Town Hall for members of the Conservation Advisor Council to review — since he was going to be out of town for their Dec. 12 meeting — hadn’t been received.

Priore, too, called for a moratorium.

He said of the tree-cutting, “They did it right under our noses, and under your noses, when you went during the holidays.” Priore advised not trusting “that kind of person.”

Priore also brought up the northern long-eared bat but misunderstood its relationship to the clear-cutting Pyramid had done in 2020 to make way for a Costco Wholesale store. Pyramid had used the deadline set to protect the endangered bat to push through its tree-clearing ahead of that deadline.

At 10:17 a.m. on March 26, 2020, the town of Guilderland posted on its website a notice that tree-cutting was to start that day, to comply with regulations from the United States Fish and Wildlife Service and from the state’s Department of Environmental Conservation to protect the northern long-eared bat.

The notice said that stumps would remain in place and there would be no ground disturbance.

Jacqueline Coons, Guilderland’s chief building and zoning inspector, contacted the DEC, Barber told The Enterprise at the time, and was told tree-cutting is not a physical alteration of the land and therefore not illegal.

“The idea behind the restriction,” Michael Clark, the wildlife manager for the DEC’s Region 4 at the time, told The Enterprise, is that, between Nov. 1 and March 31, the bats are in caves, hibernating. “After that, they could be in the trees,” he said, so tree-clearing during those months, from April 1 to Oct. 31, are prohibited.

Like most hibernating bats, the long-eared northern bat population has been greatly reduced by white-nose syndrome; some populations have been reduced over 90 percent, Clark said.

This past November, the bat, listed as threatened in 2015, was said to be facing extinction and so is being reclassified as endangered under the federal Endangered Species Act.

In December, Barber told The Enterprise that the DEC had changed its regulations since Pyramid clear-cut 8 acres of trees at the corner of Western Avenue and Crossgates Mall Road in 2020.

A federal lawsuit then claimed the clear-cutting violated the federal Clean Water and Endangered Species acts as well as the state’s Environmental Quality Review Act. Ultimately, the lawsuit, like two that followed, was unsuccessful in stopping Pyramid’s plans for the Costco store. Barber, a lawyer, had successfully argued in court with Pyramid for the project to proceed.

At the Jan. 3 meeting, Adam Edwards, of 10 Armstrong, mentioned the Led Zeppelin song, “Communication Breakdown,” in reference to the Priore letter that the council had not received in a timely fashion. 

“Obviously, our end result is that we don’t want this development to happen at all,” said Edwards.

He also asked, “What’s going to happen if the trees start coming down again?”

Barber responded that the cease-and-desist order has now been served on all parties so it’s an enforceable action. “But more importantly, we can now go into court and get injunctive relief,” said Barber.

He urged residents with “any evidence, anything that might help, in terms of showing the damage … the before and after” to submit it to the town.

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