GUILDERLAND — Neighbors say that the stream that runs parallel to Western Avenue and behind their homes on Concord Hill Drive and Halfmoon Drive is now as much as 25 feet closer to their homes, threatening to swallow their outbuildings. The water is directed through culverts toward Route 146 and the Normanskill. Residents there worry about the effect that plans by Rick Rapp to build a two-story multi-use building and more than 40 parking spaces at the corner of Hague Drive and Western Avenue will have on the water.

The proposed building site is at the top of a hill that leads down to the stream.

Rapp is seeking only a special-use permit, said Jacqueline M. Coons, the town’s acting chief building and zoning inspector, explaining that the procedure for getting that permit is not especially complicated.

Rapp has received a special-use permit twice, on the same site, for a medical office building that he never built. Rapp explained to the board that he was unable to find tenants for the medical building, and that that was why he now wants to propose a mixed-use retail and apartment space.

Twenty-five neighbors came to a zoning board meeting in March to oppose Rapp’s plan. They cited other issues as well, including the difficulty of making left turns out of or into either entrance to Windmill Estates — there is an entrance at Hague Drive on Route 20 and another at Halfmoon Drive on Route 146 — as well as traffic through the community, which they say is already often used as a shortcut. The neighbors also questioned the need for more apartments in the town, citing apartment construction projects including the 1700 Apartments at Johnston Road and Route 20 as well as the nearby Mill Hollow complex.

Many talked about flooding in what they called the “wetland” behind their homes as the reason for their opposition.

Encroaching water  

John Keegan, vice president of the Windmill Estates homeowners’ association, says the stream, or swampy area — he calls it a “wetland” — has come 25 feet closer than before to his home at 212 Concord Hill Dr. and is now almost at the edge of the shed behind  his house. The edge of the shed closest to the water is bowed and buckled, seemingly as the ground beneath it has softened.

Ryan Bartlett, Keegan’s next-door neighbor at number 210, says that in 2000 he and his family built a 12-by-12-foot wooden platform — like a patio, but raised about six inches off the ground — at the water’s edge, where they could sit and look over the water. They also built a firepit nearby. “You could have a fire here, and it was peaceful,” he said. The platform is now rotting and half-submerged.

Bartlett says he worries that a larger paved area at the top of the hill “will create more water into our backyards.”

Keegan and Bartlett pointed at a large tree that was lying, huge root ball exposed, in the water. “That tree literally was standing at one point,” said Bartlett. “The higher the water gets, it loosens the trees.”

Homeowners’ association President Jeff Martin, who lives across the street from Fernandez at 107 Halfmoon, said of the trees standing in the wetland, “They’re all dying.”

“They took down a ton of trees when they put in the day care,” said Keegan. “They took down a lot more when Chico’s Barbecue went in. All those trees were soaking up water.”

Currently standing on a portion of the proposed building site is a small building used as a preschool, Twinkling Stars. Rapp’s proposal calls for tearing down that building. Next door is the acupuncture clinic of Dr. Philomena Kong, M.D. and beyond that is the former Chico’s BBQ, which has been empty for several years.

Status unclear

But, it turns out, what residents call a “wetland” may not be recognized as a wetland at all, and it may not be protected.

The area does not appear to be designated as a wetland by either the Department of Environmental Conservation or the federal government, said Buddy D’Arpino this week, looking at a map of Albany County. D’Arpino is the stormwater control officer for the town of Guilderland.

“Any time there’s water, people call it a wetland,” said D’Arpino. “Sure, it’s a stream, but not every stream is a federal wetland,” he said.

“The closest wetlands,” D’Arpino said, “are up 146, to the Normanskill.” There are others in the area, he said, including behind Pinehaven Country Club, at the horse stable on Route 20, and near Phillips Hardware on Route 146 toward Guilderland Center.

Rick Georgeson of the Department of Environmental Conservation said that there are no mapped DEC freshwater wetlands, classified streams, or mapped federal wetlands on the site.

Andy Dangler of the New York District of the Army Corps of Engineers said that the Corps has a map called the National Wetlands Inventory Map that it uses “as a guide,” but that the wetlands that exist are “too vast to be able to map.”

The Corps does not “maintain detailed maps of where wetlands and streams are,” Dangler said.

The Corps usually works in reaction to a proposal, Dangler said. A developer who wants to build hires a consultant to map where the wetlands and streams are, and then gets a letter from the Corps, saying that it agrees with the mapping. The letter can then be used, Dangler said, to get a jurisdictional determination from the Corps and to decide what permit or permits are needed.

Town Highway Superintendent Steve Oliver said, “To the best of my knowledge, it’s not a running creek. It’s a drainage area where all those properties — where their water would drain and then run out. That’s our best guesstimation.”

Damming effect?

Kathryn Fernandez, who at 108 Halfmoon Drive is further along the water toward Route 146, says her home does not have flooding problems. She says, conversely, that the wetlands behind her are drying up. “I just worry about the pond and its integrity,” she said.

Fernandez is a member of the board of Guilderhaven — a not-for-profit organization that provides spaying and neutering, food, and medical intervention for animals in need, whether companion animals or wildlife. The organization sometimes cares for injured wildlife such as squirrels or raccoons, Fernandez said, and then releases them at the stream.

Fernandez believes that the stream has been “compromised” ever since a contractor hired by her neighbor disposed of large pieces of concrete by dumping them into the stream several years ago, which she says she witnessed.

That resident could not be reached for comment.

He has seen the concrete in there himself, D’Arpino said, adding that a number of residents have placed debris such as branches, brush, and lawn trimmings into the stream.

“Over the years, it adds up,” he said. “There’s no reason to put those things into the stream; the highway department picks up brown bags all year round.”

D’Arpino got the town’s highway department to pick up any debris from the stream, if residents worked together to pull items from the stream and place them at the curb. D’Arpino wrote letters to that effect to the homeowners’ association, he says, and has “never been contacted since.”

D’Arpino also said that he has talked to all the residents who live along the stream and asked them not to throw anything in the water, “just to help out the homeowners’ association.” He said he does not think there has been any recent dumping.

Jon Kusler of Berne, a nationally recognized expert on wetlands and the retired executive director of the Association of State Wetland Managers, said that it was entirely possible that placing items in a flowing stream could block drainage, alter the hydrology and end up with some areas getting wetter and others getting drier, “depending on where you are.”

Next steps

Dangler of the Army Corps said, “If there’s folks that are concerned about it, they could ask the planning board or the zoning board to require the person who’s trying to get the approval to get a letter from our office.”

The town could condition its approval, “if they want to,” Dangler said, on the developer contacting the Army Corps and the DEC to ask them to check the site and determine if permits are needed.

“Until there’s work going on, or until an application comes in, we don’t really insert ourselves in this process,” Dangler said.

But, in any case, Dangler added, “To trigger our jurisdiction, you’d have to be pretty much in the wetland. If there’s development uphill that would generate more water into the wetland, we don’t really get involved in it.”

Coons, the acting chief building and zoning inspector, said that usually the process is to involve the Army Corps “at the planning board stage.” This project, she said, has been approved by the planning board “twice now” in the past, for the medical building, once when it was first proposed, and then again when the time limit for starting construction had passed.

“So we’re kind of past that,” she said.

Coons added that, because the Rapp project doesn’t call for any construction to actually take place in the water itself, “It’s a moot point.”

She brought up the example of Phillips Hardware at the corner of routes 146 and 158. There are federally recognized wetlands on the site where Phillips has proposed building a sports dome, larger store and office, several apartments, and a fast-food drive-through. “They have wetlands there,” she said, “and they are going to disturb it. We granted them the special-use permit. When they start construction, they have to get a permit from the Army Corps to work in the wetlands. They made it to the ZBA, and then they changed the design, voluntarily, sot that instead of disturbing over an acre they would disturb only a small sliver” of wetlands, in hopes of getting Army Corps approval.

A court might be the best place to resolve a neighbor dispute about dumping, said Georgeson of the DEC. “It’s similar to if someone had a tree that was overhanging your property; you’d have to sue the property owner in court in order to remedy the situation,” he said.

“But again, if it’s a protected stream, then they would not be able to just dump stuff in the stream like that,” Georgeson said.

Who would stop them?

“We would,” said Georgeson, referring to the DEC, “if it’s protected.”