GUILDERLAND — Seven residents of the Presidential Estates development have jointly filed a suit against the town’s zoning board for its decision in the Hiawatha Trails project, which they say impairs their access to Route 155. 

All of the documents in the case have been submitted to Albany County Supreme Court as of Aug. 9, and the case is now in the process of review; a written decision is usually made within 60 days. The Supreme Court is the middle level of the state’s three-tiered system

The petition also names Geoffrey and Michelle Van Epps — who for years ran a golf course on the property — as well as Hiawatha Trails, LLC and Hiawatha Land Development LLC. The developer is Anthony Carrow, who is also the chief of the Westmere Fire Department.

Presidential Estates, a development of townhouses with single-family homes in back, where the petitioners live, which is across Route 155 from the proposed development site. Farnsworth Middle School, next door to Presidential Estates, shares the same access road.

Hiawatha Trails was an executive golf course and has been approved as a 256-unit senior independent-living apartment facility. The contentious approval process took more than a year.

It gave rise to the grassroots group the Guilderland Coalition for Responsible Growth, which began to closely track development in the town’s central hamlet and beyond. Members wrote letters to the Enterprise editor and frequently spoke out at board meetings.

The coalition’s founder, Dr. Frank Casey, said that the organization is not involved in the lawsuit; he also noted that the group’s current leader is Steven Wickham, who lost to Dustin Reidy in the recent Democratic primary for District 30 of the Albany County Legislature.

The Article 78 proceeding — typically used by citizens challenging a government decision — questions the zoning board’s adoption of a “negative declaration” under the State Environmental Quality Review Act. That means the board decided in-depth environmental review was not needed.

The suit, filed on June 13, also questions the zoning board’s approval of a building height variance and the issuing of a special-use permit.

Through their attorney, Jonathon B. Tingley of Gilchrist Tingley, P.C. in Troy, the seven Presidential Estates residents asked the court to annul and vacate the negative declaration, the special-use permit, and the building height area variance. Tingley did not respond to an Enterprise request for comment. 

On July 25, Guilderland’s town attorney, James P. Melita, filed a memorandum saying the suit should be dismissed since the zoning board had determined the senior housing project “would not have a significant environmental impact” and had acted properly in granting a special-use permit and area variance.

Melita told The Enterprise this week that he could not comment on open litigation.

Similarly, the response from Hiawatha Land Development LLC, also filed on July 25, says the petitioners’ claims have no merit and argues, “As proposed, the Project will confer a substantial benefit upon the Town by not only fulfilling a need for senior housing, but also by voluntarily dedicating a significant portion of land to the town for parkland and open space.”

Attorney Terresa Bakner, with the firm of Whiteman Osterman & Hanna, which is representing the developer, explained that respondent Hiawatha Trails, LLC is the Van Eppses, while Hiawatha Land Development LLC is the firm’s client, Carrow.

Attorney Gabriella R. Levine of Whiteman Osterman & Hanna LLP, representing Hiawatha Land, did not return a call asking for comment. 

Planning Board Chairman Thomas Remmert said he could not comment on pending litigation and also reminded The Enterprise that both he and zoning board alternate Stephen Albert recused themselves from all discussions and votes because they are both Westmere firefighters and developer Carrow is their chief. Remmert said he had not even watched the videos of meetings on the subject.

Town Supervisor Peter Barber said the town has a policy of not commenting on pending litigation.  

The petition 

The petitioners are Frederick Tresselt of 341 Presidential Way, Williams Burns of 320 Presidential Way, Thomas Mancuso and Melissa Mayone of 304 Presidential Way, Cassandra Gordon of 705 Adams Court, and James Finn and JoAnn Finn of 541 Jefferson Court. 

The properties to be developed are located in zoning districts, the petition says, where the maximum height of a senior independent-living facility allowed with a special-use permit is two-and-a-half stories, or 35 feet; the building required an area variance to allow four stories and 46 feet. 

The town is considering a number of changes to its zoning code, one of which had been to raise the maximum building height from 35 to 45 feet. But the most recent revised version of the changes to the zoning code has removed that proposal, Supervisor Peter Barber confirmed this week.

The changes that are still proposed — including that senior independent-living facilities would be allowed only on sites that are within 1,000 feet of Western Avenue or have direct access to or frontage on a county or state road — will be considered at hearing on Sept. 3, continued from a hearing that began in June. 

The Hiawatha Trails project would add a fourth leg to the existing three-leg intersection of Route 155, or State Farm Road, and Presidential Way. The only point of access to the new facility would be directly across from the road to Presidential Estates. This road also is the access point for Farnsworth Middle School. 

According to the petition, a letter from VHB, the traffic engineer working on behalf of developer Carrow, recommended that a traffic signal be installed at the intersection and noted that the Presidential Way approach to State Farm Road, Route 155, which has only a stop sign and no traffic light, already is difficult in the evening peak hour and worse in the morning peak.

VHB noted, the petition says, that, in 2021, if the project were not built, cars leaving Presidential Estates would wait 88 seconds during the morning rush hour; they would wait 133 seconds if the facility were built.

VHB also noted that vehicles coming from the new project’s access point toward Route 155 would also have the worst level of service and would have an average wait of more than 200 seconds.

One of the two town-designated engineers on the project, Greenman-Pedersen, wrote in a letter to the town in October 2018, “These forecasted conditions are not preferable, and the Town should carefully consider if approving the project as designed but without a traffic signal is appropriate.” 

Greenman-Pedersen suggested, as an alternative, moving the project’s driveway to a different location, “as a ‘T’ intersection may provide a better operation.” 

Both the applicant’s engineer and the town’s engineer indicated that the project could result in significant adverse traffic impact if developed with stop-sign control, rather than a traffic signal or relocation of the project’s driveway, the petition says.

The applicant’s engineer, VHB, evaluated how the intersection would work if a single-lane roundabout were built at the intersection, and found, if the facility were built with a roundabout, the morning and afternoon peak hours would both be rated “A,” the best.

But, the petition says, “the Applicant refused to include a single lane roundabout at the subject intersection as part of the project due to cost.”

Then, in November 2018, the New York State Department of Transportation refused permission to install a traffic signal at the intersection. 

The applicant then did not consider a roundabout, “as recommended by the New York State Department of Transportation,” or relocating the project driveway “as recommended by the ZBA’s retained traffic engineer.” 

In a revised and updated Full Environmental Assessment Form in April 2019, the applicant indicated that “yes,” the project would “result in a substantial increase in traffic above present levels or generate substantial new demand for transportation facilities or services.” 

The state’s transportation department said it would consider other mitigation measures, including a new left-turn lane on Route 155 into the retirement community, the petition says. 

The zoning board effectively “threw up its hands” and issued the negative declaration without any further analysis or consideration of the adverse impacts that would be caused to vehicles approaching Route 155 from Presidential Estates, the petition says. 

The zoning board, the petition says, “ignored its own traffic expert’s opinion and the opinion of the Applicant’s traffic expert.” 

The applicant did not, it says, further consider or assess alternative options of putting in a roundabout or relocating the driveway to the new project. 

With regard to the building height, the petition says that the zoning board found that the project would not have an undesirable change on the neighborhood, without issuing any findings or reasons as to whether the project could be built in a way that would not require the area variance.

The zoning board also failed, the petition says, to issue findings or reasons about whether the area variance request was “substantial.” 

The petition says that, although the zoning board concluded that about 81 percent of the building would be within the allowable height under the zoning code, “documents in the record reflect that 100% of the building will exceed 2-½ stories, with 20% of the building being 4 stories and approximately 46 feet.”

The applicant proposes to dedicate about 24 acres to the town as open space, and build on only the remaining 19.6 acres, the petition says, but the applicant’s “own submissions at the public hearing demonstrated” that it could build the same 256 units on the 19.6 acres without requiring an area variance.  

The petitioners ask the court to annul and vacate the negative declaration, the special-use permit, and the building height area variance. 

The town’s argument 

The next month, the town responded:

— A senior independent-living facility is an allowed “special permit use” in the residential district, and is compatible with apartment complexes next to and across the street from the site; 

— The project preserves 83 percent of the golf course as green spaces, with 55 percent of the site dedicated to the town for a town park with a multi-use trail system and future connections to the public library, YMCA, and elementary school; 

— The Department of Transportation’s traffic counts in 2001 and traffic study in 2018 showed an 11-percent decrease in traffic volumes at the Route 155 intersection over the 17-year period, and congestion was limited to “relative short periods” at the middle school at arrival and departure times; 

— Senior housing generates low traffic volumes, and during peak hours the facility would only add about 3- to 4-percent to existing volumes; 

— The Department of Transportation’s signal “warrant” analysis of existing and projected volumes did not justify a new traffic light for the project driveway at the intersection. The state did require a new left-turning lane to the facility and a relocated crosswalk; and 

— More than 80 percent of the building complied with town’s height restrictions, and the senior facility was six feet lower lower in elevation and comparable in height to adjacent apartments. 

The height-variance application was necessary because, the town memorandum says, “a walk-out basement in a back corner of the building caused the building there to be three stories and 46 feet.” 

A VHB traffic study in June 2018 recommended a new traffic light at Hiawatha’s expense at the intersection, the town memorandum says. 

The Department of Transportation provided preliminary comments on the traffic study in June 2018, including a request to consider different intersection configurations, the memorandum says, including a left-turn lane into the project, and evaluating a potential roundabout. DOT’s Highway Design Manual requires the department to consider the option of a roundabout when a project involves reconstructing or constructing new intersections, the memorandum continues. 

In August 2018, VHB provided the Department of Transportation with responses to its comments, the memorandum says, writing about the roundabout: “In addition to the excessive cost, VHB noted that: ‘The installation of a roundabout at this intersection also does not meet with the desired pedestrian crossings that have been expressed to the Project team by both the Town and the School District.” 

Nineteen percent of the building exceeded the height maximum, the town memorandum says, and the zoning board considered a height variance request for this. 

The planning board was required to submit a written site plan report to the zoning board, and retained Greenman-Pedersen as the town’s engineer to assess traffic impact and analyze the need for signals. The town also retained Delaware Engineering to review stormwater impacts and site-plan issues. 

At Greenman-Pedersen’s request, in October 2018, VHB took additional traffic measurements to determine if measurements during that season were higher than those measured in February. VHB concluded that the October measurements did not change the results of its traffic study, the memorandum says. 

In October 2018, Hiawatha enlarged the land to be dedicated to the town, adding 3.42 acres along Route 155 that had earlier been proposed as a recreation area for facility residents. In a revised site plan from October 2018, a total of 24.36 acres is dedicated to the town as park land. 

The state’s Department of Transportation found, Melita wrote on behalf of the town, quoting the agency, that “congestion lasts for relatively short periods.” Both morning and afternoon congestion lasted for 15 minutes, and these types of delays “are not unusual or unexpected and are experienced at most neighboring schools, whether they are signalized driveways or not,” he continued. 

At times other than these, the traffic volumes on Presidential Way are “extremely light,” the Department of Transportation wrote, according to Melita. 

The department also noted the intersection has “excellent safety,” Melita wrote, with “only one non-reportable crash.” 

The department of transportation said that if a traffic signal were installed at the intersection, Presidential Way traffic would periodically be stopped white Route 155 motorists had the green light, and so, since school buses loaded with children cannot turn right on red, the Presidential Way approach to the intersection would come to a complete standstill facing the red signals. 

The department recommended improving the crosswalk with safety measures such as rectangular rapid flashing beacons, Melita wrote, and concluded that “a traffic signal is not warranted.” 

The department did “conceptually approve” a left-turn lane into the project driveway from Route 155, conditional on turn-lane modification, closure of the current golf-course driveways, optimization of sight lines, and alignment of opposing left-turn movements for the project and Presidential Way, according to the town’s memorandum. 

Hiawatha’s revised site plan of December 2018 then included a stop-sign control for the new driveway, a new left-turn lane from Route 155 into the new driveway, and proposed rectangular rapid flashing beacons for the crosswalk, Melita wrote. 

At the zoning board’s first public hearing on the matter in February 2019, residents expressed both opposition and support, the memorandum notes. VHB advised the zoning board that the senior residence would have a low impact on traffic during peak hour because residents — who are required to be 55 and above — do not travel much during those hours. 

The zoning inquired about a possible roundabout, and was advised, the memorandum says, that a roundabout was not justified by the anticipated traffic and would not provide for a safe pedestrian crossing. 

The memorandum states that Daniel Hershberg, the applicant’s engineer, told the zoning board in April 2019 that the front would be 2.5 stories and the back corner would be four stories because of the lot’s slope.

Hershberg told the zoning board that, from across Route 155, the building looked residential and would appear to be two stories. The town’s zoning administrator, Jacqueline M. Coons, confirmed that, after grading, the building’s front had a below-grade story that would be considered a basement, the memorandum says. 

The zoning board considered an option that would make the height variance unnecessary by removing one story and expanding the building’s footprint, the memorandum says. The zoning board found that this option would cause environmental impacts including the loss of 3.4 acres of the future town park and the loss of preserved open space, “a key goal in the Hamlet Plan” for the town. 

The memorandum states that the zoning board “engaged in a balancing test by weighing the proposed benefit of a senior residential facility and dedication of 22.4 acres to the Town as parkland against the possible detriment to the health, safety and welfare of the community caused by the height variance.” 

When the zoning board issued a negative declaration under the State Environmental Quality Review Act and granted the area variance and special-use permit in May 2019, the memorandum details, it imposed 16 conditions.

Developer’s argument 

Attorneys John J. Henry and Gabriella R. Levine, representing Hiawatha Land, note that the petitioners hold that the zoning board should have issued a positive declaration and required alternative measures at the intersection, such as the installation of a roundabout.

But, it says, “SEQRA, however, cannot alter the DOT’s exclusive jurisdiction and authority of mitigation measures and conditions at the intersection.” 

Hiawatha Land argues that the zoning board did, in its April 17, 2019 meeting, discuss alternatives including a roundabout but found that a roundabout would make it harder for senior residents of the facility to get in and out; would not be safe for walkers to cross, especially near a school; and was “cost prohibitive” at several million dollars.

Further, Hiawatha Land refutes the relevance of the Greenman-Pedersen report, stating, “that report was produced in October 2018, well before the DOT conceptually approved of the Project with alternative measures, including the installation of a left turn lane and enhanced pedestrian crossing … Once DOT conceptually approved the Project, no expert advice was offered to the ZBA refuting the DOT’s conclusions.” 

During the Airl 17, 2019 zoning board meeting, the memorandum says, members of the public expressed generalized concerns about potential traffic impacts, but “no expert report was produced to the ZBA rebutting or refuting the effectiveness of the measures proposed by the DOT.”

Members of the public opposed to the project never submitted contrary traffic reports or any evidence, Hiawatha Land argues. “Instead, during public hearings, only anecdotal statements and fears concerning traffic were presented to the Board.” 

It is well settled that the zoning board is not entitled, in determining whether to grant or deny Hiawatha’s application, to rely upon “general community objections over the expert evidence from both VHB and the DOT,” the memorandum argues. 

It concludes that the voluminous record in the case shows that the zoning board spent “significant time and effort considering each of the disputed factors” under the zoning code. 

Petitioners’ reply

In an Aug. 8 reply memorandum, Tingley argues on behalf of the seven Presidential Estates residents points including: 

— The State Environmental Quality Review Act requires an environmental impact statement when a proposed project “may have a significant effect on the environment.”The threshold is low, tingley wrote for requiring an impact statement: “If a project includes the potential for just one significant environmental effect, an EIS is required.” The potential for a significant traffic impact means that an environmental impact statement was required, Tingley writes; 

— The respondents haven’t addressed traffic impacts caused by the project’s construction, Tingley says.

The left-turn-only lane from Route 155 into the project, and the relocation of the crosswalk are merely “mitigation measures,” he argues, but do not reduce the project’s “documented adverse traffic impacts on Presidential Way.”

— Because the zoning board was the lead agency for environmental review of this project, Tingley says, the board has violated its duties by saying its hands were tied because the state’s Department of Transportation owns route 155.

A lead agency can rely on outside sources and the advice of others, but must exercise its critical judgment and make final determination on SEQRA issues, he wrote. In addition, he said, the state’s concerns relate only to state highways like Route 155, and not to town roadways like Presidential Way.