Altamont residents sue to reverse Stewart’s rezone

The Enterprise — Melissa Hale-Spencer
Historical perspective: The Stewart’s Shop on Altamont Boulevard sits on the home of the former Wayside Inn, a stop between Helderberg farms and the Albany market. The inn was torn down in 1956 to make way for a gas station.

ALTAMONT — A small group of Altamont residents is suing the village’s board of trustees as well as Stewart’s Shops, seeking to overturn a zoning change approved by the village board, in a split vote, last Dec. 12.

The board had voted, 3 to 2, to rezone 107-109 Helderberg Ave., a turn-of-the-century two-family home next to Stewart’s, from residential to commercial, paving the way for Stewart’s to build a new shop on the site. One lot beyond that is a residential street, Severson Avenue.

The group, Concerned Severson Neighbors, filed a petition with the Albany County Supreme Court on April 24, to annul and vacate the law that rezoned the parcel. Papers were served at Village Hall on Monday.

Harvey Vlahos, one of the group’s leaders, said they were “trying to correct a wrong decision.”

“No one seems to be objecting — including myself — with a plan for Stewart’s to remodel within their existing footprint,” Carol Rothenberg, one of the named complainants along with the Concerned Severson Neighbors, told The Enterprise in an email. “But there is a lot of dissatisfaction with the outcome of the vote to rezone the house next to me, plus the handling of the decision-making process.”

Rothenberg continued, “Actually, there is more dissatisfaction than I had realized. Even the election results, with candidates having a very short time to campaign for the 2 seats for Trustee, only lost by less than 10 votes, with a larger than usual turnout.”

The village elections in March turned on the issue of the Stewart’s rezone, with two challengers critical of the move coming up just short in their bids for the board. Ultimately, the two incumbent trustees who had voted for the rezone — Nicholas Fahrenkopf and Michelle Ganance — retained their seats. Mayor Kerry Dineen had cast the third vote for the Stewart’s rezone; she was not up for re-election.

Fahrenkopf said on Tuesday that he was not going to “comment on pending litigation.” However, he had said during his campaign, speaking about development, “That’s not really my area of expertise. I want to leave a lot of the decision-making to the planning board.”

Mayor Dineen did not return a call seeking comment.

Michael Ginley, general counsel for Stewart’s Shops, told The Enterprise on Tuesday: “It’s too early to comment.”

Vlahos noted that the Concerned Severson Neighbors has several principals, each with his or her own reason for being involved in the lawsuit.

Rothenberg told The Enterprise in an email that she has three reasons: “With the way [the rezone] was handled, then the proposed size of the store, and ultimately the change in the historical fabric of the Village.”

Vlahos said that he himself has two reasons for being involved in the lawsuit: The first is that a home built in the early 1900s is slated for demolition. “Nobody is building Victorian homes anymore; it’s changing the landscape of the village,” he said. His second reason is to get the village board to follow the correct approval process. Of the rezone, Vlahos said, “I don’t think it conforms with either the law or the intent of the comprehensive plan.”

When he was a village trustee, Vlahos was part of the committee that created the comprehensive plan. “It was just a great, great exercise in democracy,” he said of the way the plan was developed, noting that the village hall was packed with residents working on issues, trying to articulate which were important to Altamont.

“Anyone who wanted a voice had a seat at the table,” he said.

“What’s the point of a comprehensive plan if it’s going to be riddled with holes and exceptions?” Vlahos asked.

Asked about how the group is funding the lawsuit, Vlahos said he was not prepared to disclose how much the group had raised or how many donations it had received.

The lawsuit — an Article 78 proceeding, typically brought by citizens questioning government actions — states that the village board, in issuing a “negative declaration” on the State Environmental Quality Review, meaning environmental harm would be minimal and no deep review was needed, failed to “comply procedurally or substantively with” the SEQR process.

The State Environmental Quality Review process poses a series of questions that the “lead agency,” in this case, the Altamont Village Board, asked about the proposed rezone to determine if it would have a significant adverse impact on the environment.

If, after the SEQR review is completed, the lead agency determines that the project would not have a significant adverse impact on the environment, then a “negative declaration” would be made and the project would be allowed to proceed without stringent environmental review, which is what happened in December of last year and what the lawsuit is seeking to have overturned.

In addition, the Concerned Severson Neighbors are seeking a declaratory judgement to have the rezone of 107-109 Helderberg Ave. annulled and reversed because the rezone from residential to commercial was “not in accordance with the Village of Altamont Comprehensive Plan,” the suit says, and was a case of “illegal ‘spot zoning.’”

In Saratoga County, Stewart’s was recently named as part of an Article 78 proceeding. Residents of Greenfield have filed a lawsuit against that town’s planning board, seeking to have the board’s approval of the construction of a 61,250-square-foot warehouse expansion overturned because the planning board approved an unlawful stormwater pollution prevention plan, according to court records.

Meanwhile, as the Altamont suit proceeds, so, too, does the review of Stewart’s plan, which is currently before the village’s zoning board. The company is seeking five variances, and the project has been classified by the village’s building inspector, Lance Moore, as a convenience store rather than as a gasoline service station, which would have more stringent requirements.


At a public hearing on Tuesday about updates to Voorheesville’s zoning code, Ginley, the lawyer for Stewart’s, said that, in the company’s history of obtaining approvals for over 300 stores, only once had a positive declaration been made on a SEQR review: Voorheesville in June 2017.

At the time, the company was seeking to build a new store with gas pumps next to the Vly Creek and across from Voorheesville Elementary School, the site of the old Smith’s Tavern.

The Voorheesville Planning Commission in June 2017 cited pedestrian safety as well as flooding and erosion as reasons for issuing a positive declaration on its SEQR review, which would have subjected the proposed project to an in-depth environmental review.

Stewart’s claimed that the request for an in-depth review was unlawful and a stalling tactic. Leah Everhart, an attorney who was representing Stewart’s at the time, said to the planning commission, “We made crystal clear in our letter, we don’t think you have the lawful authority to go down that path.”

The letter, sent by Stewart’s to the commission said,“If the Planning Commission does not act upon Stewart’s Application at its next meeting, then we will have no choice but to recommend that Stewart’s pursue legal action.”

On Tuesday night, Ginley repeated the threat of legal action against Voorheesville. “In the history of Stewart’s,” he said, the company had never brought a lawsuit against a municipality; however, if the village were to adopt the changes to its zoning code, Stewart’s would file for an Article 78 proceeding, challenging the village’s zoning and approval processes.

The plaintiff’s claim

In addition to the Concerned Severson Neighbors, Rothenberg and Michael McNeany are named as plaintiffs in the Altamont suit; the pair are also members of the Concerned Severson Neighbors.

Rothenberg and McNeany are, the lawsuit states, “concerned about the potential impacts of the proposed expansion of Stewart’s gasoline filling station and convenience store on the safety, quality of life, aesthetic, environmental and historic character of the Helderberg-Severson neighborhood in particular, and the Village of Altamont as a whole.”

Rothenberg, the court documents state, has lived in her home at 111 Helderberg Ave., directly adjacent to 107-109 Helderberg Ave., for 40 years.

The proposed expansion would place the new Stewart’s shop 13 feet from her property line. “As a result of the proposed expanded one-story Stewart’s convenience store,” the lawsuit states, “the view from Ms. Rothenberg’s upstairs windows will look directly onto the roof of the new Stewart’s building.”

In addition, the suit claims, Rothenberg will be subject to the noise from the store’s heating and cooling systems, which would be located eight feet from her property line, as well as the noise from idling cars and motorcycles.

Twenty trees at 107-109 Helderberg Ave., which the lawsuit states, “act as a critical sound and light buffer between the commercial activity ... and Ms. Rothenberg’s property,” are slated for removal as part of the construction of the new store. Without those existing barriers, the court filing says, Rothenberg “will be subject to substantially increased noise and light pollution.”

McNeany, who lives at 104 Severson Ave., would also be subjected to the  increased noise and light pollution, the lawsuit says.

The court filing says that McNeany has two small children who are picked up for school at a bus stop located directly across the street from the existing Stewart’s shop, “at the five-way intersection of Voorheesville-Altamont Blvd., Prospect Street, Helderberg Avenue, Main Street, and Route 156.” That intersection, the court documents claim, is the “most dangerous intersection” in Altamont; by expanding the store, it would only increase the risk of harm.

“In addition,” the lawsuit states, “there is a stream that flows by both Mr. McNeany’s property and the Stewart’s property which contains significant wildlife … The existing potential for environmental harm to this stream … will be greatly exacerbated by an expanded Stewart's gasoline filling station.”

Fertile ground for a lawsuit

In 2015, the property’s then-owner, Peter Baumann, applied to change the zoning of 107-109 Helderberg Ave. from residential to commercial. Baumann had entered into a sales contract with Stewart’s that would have allowed the company to expand its shop.

Baumann sold the property to Stewart’s in August 2016, for $217,500. And because the property had a new owner, it had the right to request a zoning change.

Some village residents expressed surprise that the expansion had come up again, given that it was rejected just a few years ago, albeit in a 2-to-2 vote.

At the Dec. 12, 2018 public hearing about the proposed rezone of 107-109 Helderberg Ave., there were over 100 residents in attendance while 30 spoke during public comment; for every person in favor of the rezone, two were against it.

After public comment, the village board deliberated for an hour whether or not to have an in-depth environmental review of the proposed project, which the board decided against.

At the time, however, there was some confusion as to what exactly Stewart’s was seeking approval for: a zoning change, or a zoning change and the approval to start construction.

Mayor Dineen had opened the public hearing by saying: “The village board is only voting this evening on a potential rezone, not the plan specifically, although we keep that in mind in our deliberations.”

After the public hearing had ended and the trustees began their discussion, Fahrenkopf asked the village attorney, Justin Heller, if the board was determining only the impact that rezoning the parcel of land at 107-109 Helderberg Ave. from residential to commercial may have, or if the board also had to take into consideration the demolition of the home and the construction of a new Stewart’s shop.

Heller told Fahrenkopf the demolition and construction should be considered. “I mean, it’s one SEQR,” Heller said at the Dec. 12 meeting.

Trustee Dean Whalen asked Chuck Marshall, a real-estate representative and project manager for Stewart’s, if he had planned to submit separate SEQRs for the demolition of 107-109 Helderberg Ave. and for construction of a new store.

Marshall, reading the SEQR Stewart’s submitted for the project, said: “It states rezoning from R10 to central business district and then the construction of a Stewart’s shop and gas [station].”

The submittal, Marshall said, did not explicitly include the demolition of the existing house, “but by the nature of the site plan that would be included,” he said.

“So the SEQR action would be in its entirety the zone change and construction,” Marshall said.

Whalen responded, “I’m uncomfortable doing that.” Whalen, an architect, led the committee that drafted Altamont’s comprehensive plan.

The village board’s job, Whalen said, was to use the SEQR process to address strictly the potential impacts that rezoning might have; a separate SEQR for demolition and construction would have go through the planning board.

Whalen said that the SEQR should apply only to the rezoning question; and, even when that was the case, he said, the proposed rezoning still warranted a positive declaration.

A “positive declaration” would not kill the project; it would start a new process of approval. The new process would require that the project’s applicant submit an Environmental Impact Statement that “concisely describes and analyzes a proposed action which may have a significant impact on the environment,” according to the state.

Reading through Part 2 of the SEQRA — the full environmental assessment form, which identifies potential project impacts — Whalen said that the rezone itself would have a “moderate to large impact,” the most extreme choice on the assessment form, on the land Stewart’s was seeking to have rezoned.

Continuing through the assessment form, Whalen said the rezone would also impact the site’s geological, historic, and archeological features, as well as having an impact on the surface water in the adjacent creek.

“I’m not trying to be difficult; I’m trying to be careful,” Whalen said, eliciting applause from residents against the proposed rezoning. By voting on the SEQR as written, Whalen said, the village board would be circumventing the planning board’s authority.

After further discussion, Fahrenkopf asked: “Can we have the action just be rezoning?”

Marshall agreed and said that he would submit a separate SEQR to the planning board for the construction of a new shop. Whalen said the amended SEQRA still warranted a positive declaration but deferred to the majority’s will.

The village board then voted, 3 to 2, to rezone from residential to commercial the two-family home at 107-109 Helderberg Ave.

Hybrid proceeding

The 25-page hybrid proceeding seeks four causes of action under Article 78, and additionally, under Section 3001 of the state’s Civil Practice Laws and Rules, seeks a declaratory judgement from the court, “having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed.”

In the first cause of action, the lawsuit states that, the village board, in limiting its scope only to the proposed zoning change, “improperly segmented the SEQRA review by considering only the potential impacts of the rezoning, and ignoring the potential environmental impacts of the proposed construction and operation of the expanded Stewart’s gasoline filling station and convenience store…”

Further, court papers say, the village board shirked its responsibility when it “deferred analysis and mitigation of potential adverse environmental impacts from … the proposed construction and operation” of a new shop to the village planning board.

In addition, by segmenting the SEQR review, the village board neglected to explain why the Stewart’s proposal warranted a segmented review, and “failed to demonstrate that such review is clearly no less protective of the environment,” which is required in the SEQR process, the lawsuit says.

The second cause of action states that village board, pursuant to state law, was “required to review the complete Environmental Assessment Form” in order to identify “relevant areas of environmental concern,” which, the court papers state, the village board failed to do.

By failing to identify the areas of environmental concern, the lawsuit states, the village board “failed to strictly comply with SEQRA, failed to perform a duty enjoined upon it by law, and proceeded in excess of jurisdiction, and the Board’s determination to issue the Negative Declaration was therefore made in violation of lawful procedure, was affected by error of law, was arbitrary and capricious, was an abuse of discretion…”

The third cause of action says that the village board failed to strictly comply with the SEQR process — in violation of a lawful procedure — when it failed to take a “hard look” at “several potentially significant adverse environmental impacts from the rezoning and gasoline filling station and convenience store expansion, including impacts from traffic, lighting, noise, visual impacts, impacts to cultural and historic resources and character of the community…”

The fourth cause of action states that the village board “failed to strictly comply with SEQRA, failed to perform a duty enjoined upon it by law, and proceeded in excess of jurisdiction,” when it failed to provide a “proper and timely written” explanation as to why rezoning 107-109 Helderberg Ave. would not have “significant adverse” impact on the environment.

For all the above reasons, the lawsuit states, “the Negative Declaration and Local Law #1 of 2018 should be annulled and vacated.”

The Concerned Severson Neighbors are also seeking a declaratory judgement that says the rezone was not in compliance with the village’s comprehensive plan and the rezone was a case of spot zoning.

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