GUILDERLAND — Tuesday night, the town board looked as if it would reconsider the now-controversial re-zone it granted Jeff Thomas a year ago to build senior housing on Brandle Road.
The parcel to be developed lies just outside the village of Altamont and has sparked suits and countersuits. Thomas has sued nearby property owners for $17 million for "tortious interference" with his plans to build the housing project.

At Tuesday’s meeting, Councilman Bruce Sherwin — who cast the sole dissenting vote for the re-zone last July — suggested the board revisit its re-zone decision.

Supervisor Kenneth Runion was open to a discussion, while Councilman David Bosworth was apprehensive about looking at an issue in the middle of litigation. Councilman Michael Ricard said he was against revisiting the board’s original decision and Councilwoman Patricia Slavick remained silent.

Still, the board agreed to ask the village of Altamont for an opinion before its Sept. 6 meeting.
Asked Tuesday night if he were worried about Thomas suing the town, if the board changed his re-zone and stopped his senior-housing project, Runion, a lawyer, said, "No. He wouldn’t have any grounds to sue."

This was one of the few times that Runion during a board meeting had disagreed with Bosworth, the Democratic party chair sitting on an all-Democrat board.

Wednesday evening, Runion called The Enterprise to say he had thought it over and reconsidered. As part of the normal zoning process Thomas’s plan will go through, the village will now give an opinion on the senior housing, Runion said.

Since that will be discussed, he said late Wednesday, there is no need to ask the village to comment on the re-zone and there is no need for the town board to consider its past re-zone decision.

Asked if the senior housing and the re-zone of land on Brandle Road weren’t two different issues, since the village was just going to look at whether a Multi-Family Residential zone fit in this area, Runion said they were related.

The re-zone is conditional on the senior-housing project and, if the project doesn’t happen within a few years, the re-zone would be lifted, he said.

Thomas told The Enterprise earlier on Wednesday that he’s not worried. He’s confident, he said, that his project will go forward without problems.

But, he said, it is disconcerting when hurdles like this appear.
"It would be very sad for the many seniors if something were to happen to derail the project," he said.

Discussion of his re-zone came after the town board created a law requiring that certain planning and zoning decisions in the town first get an opinion from Altamont, an incorporated village with its own elected government, located within the town of Guilderland.

Any proposals for land in Guilderland that is within 1,200 feet of Altamont’s border or its infrastructure would first be reviewed by a village committee.

Since Thomas’s housing complex is still being considered by the town’s planning and zoning boards, Sherwin said the village should get a chance to comment on the zoning.
This, Thomas said, is not the "true intent" of the new law. The new law is for new zoning and planning applications, not "to rewrite the history of projects," Thomas told The Enterprise.

Last July, the Guilderland Town Board re-zoned the Brandle Road parcel from Agricultural to Multi-Family Residential for Thomas to build a senior housing complex.

Thomas’s plans at the time — to develop 14.6 acres with 80 housing units — represented a tenfold density increase over what would have been allowed in an agricultural district. The town board approved the re-zone at the same meeting it also approved a moratorium on building in the rural western part of Guilderland.

Sherwin voted against the re-zone because, he said then, it was interfering with the town’s planning process. He also told The Enterprise then that he was hesitant to approve Thomas’s re-zone because it wasn’t clear that there would be enough water for the complex.

Sherwin since has not received the Democratic endorsement to run for re-election.

Wednesday morning, The Enterprise asked Altamont Mayor James Gaughan his opinion on whether the village should request the town reconsider the re-zone. Gaughan was wary of commenting, since, he said, he had not heard the request directly from the town.
"I’m willing to work with the [town] board to give an opinion if they, under the guidance of their own regulations and laws, are allowed to refer retroactively, I’d be pleased to work with the board," Gaughan said.

Asked for his opinion on the town’s zoning of Thomas’s land, Gaughan said the town’s decision to re-zone the land was done very carefully, considering the law and ample opportunity for public comment.
"But, if they wish to revisit it, the board will be very happy to respond to that," Gaughan said.

Water conflict

Runion told The Enterprise Tuesday night that the town approved Thomas’s re-zone based on two facts. One was that a need for senior housing was established and the other was that the project would have water from the village of Altamont.

The town would never approve such a re-zone without the promise of municipal water and sewer, Runion said.
The town board based its approval on a letter it received before the vote from then-Mayor Paul DeSarbo, Runion said. The letter stated, "The developer seeks village water and sewer services, a necessity to the project. The village can handle this, but will need to lift the moratorium on water service."

The village of Altamont had at that time and still has a moratorium on granting water to those outside the village; this is because its current water supply is stretched to the limit serving those within the village.

At the exact same time on July 6 that the town board was meeting to approve the re-zone for Thomas, the village board was meeting and questioning DeSarbo about his letter. The trustees had not voted on the water commitment.

As the town board was approving Thomas’s re-zone, the village board was telling residents that it had not promised water to Thomas’s project.

In January, the village board then promised Thomas water, despite its moratorium. The commitment was made over the objections of the village-hired engineer and the superintendent of public works.

Thomas said Wednesday that this was a unanimous village vote.
"I’ve already taken every step possible for approval of this senior project," Thomas said. "Dozens of seniors and village residents spoke to the Guilderland Town Board about the dire need for senior housing."

Michael and Nancy Trumpler also own land on rural Brandle Road outside the village where Altamont drilled and found water. The Trumplers signed a contract last year agreeing to sell about five acres, with the wells, to the village.

The Trumplers were upset because earlier they had to scale back plans for a place for Nancy Trumpler’s elderly mother to live on Brandle Road because the town restricted building in an agricultural district. They also said they had been told that the wells on their land would be used only for water in the village, not for an outside developer, and they had procedural concerns.

Water was a major issue in the spring village elections. Mayor DeSarbo and the incumbent trustees were ousted. New Mayor Gaughan and trustees Dean Whalen and Kerry Dineen had told The Enterprise before the election that they were unanimous in their belief that water should not have been granted outside the village, as it was for Thomas, without a public hearing.

In March, the Trumplers filed papers in Albany County Supreme Court to have a judge decide whether the village’s contract for the five-acre site is legal and binding; they sought no money from the village.

The village responded by filing counterclaims, amounting to hundreds of thousands of dollars, against the Trumplers. E. Guy Roemer, the village’s attorney, told The Enterprise earlier that the counterclaims were to enforce the contract and for damages due to the delay and increased costs to the village.

Roemer is being paid $125 per hour to defend the village against the Trumplers’ suit. The village board last month authorized up to $10,000 for the litigation costs.

In April, Gaughan and Roemer met with the Trumplers and their lawyer, Michael Englert. The village asked if the Trumplers would proceed in granting water to Altamont if the offer to give village water to Thomas were rescinded; the Trumplers said they would.

Then, Gaughan and Roemer adjourned to another room and, when they came back, Roemer said that, since Thomas had deep pockets and could afford court appeals, Roemer would rather take the chance of having the Trumplers sue.

Additionally, the mayor said that the Trumplers’ request to review a fair water policy for the village could not be met since setting policy is the purview of elected officials.
In June, Thomas sued the Trumplers for $17 million, over what he called the "tortuous interference" with his plans to build a senior-housing project. His lawyer said the suit was not over money; Thomas just wanted the Trumplers to drop their suit.
Englert said Thomas filed the lawsuit for "retaliation against the Trumplers for daring to go to court" to seek direction on the option agreement.

At Tuesday’s town board meeting, Sherwin and Runion both suggested that, if the town had received village opinion on Thomas’s re-zone last year, today’s litigation problems might not exist.

The Enterprise asked Gaughan Wednesday, if Thomas were taken out of the equation, if he thinks the village’s litigation problems would be solved.
"The village’s water problem is not as one-faceted as you suggested," Gaughan said. "We are in a litigation because the litigants believe the village did not have the legal option to buy water....They have the right to search for legal opinion."

Thomas repeated to The Enterprise that he was promised water both in DeSarbo’s letter and by the former village board’s unanimous vote in January.

New law

The new law that allows Altamont to comment on planning and zoning decisions is similar to what the town does with parcels that are within 500 feet of county highways or infrastructure. The Albany County Planning Board first votes on the project.

If the county planning board, or now the Altamont committee, disapproves of a project, it needs a supermajority from the town’s planning or zoning board to pass.

The idea of including Altamont in the planning and zoning process came about from discussions between town planner Jan Weston and village officials, Runion said earlier.

At Tuesday’s meeting, village Trustee Whalen said that Altamont strongly supports the new law. The Altamont committee will consist of village planning and zoning board members, as well as interested citizens, he said.

The village will have 30 days to review planning or zoning applications, Runion said. If it does not submit comments in that amount of time, the town will proceed without village opinion, he said.
"Some decisions the town makes can seriously impact the quality of the village," said Runion, who lives in the village and formerly served as its mayor.
"This is a very very good idea," said Sherwin.

The town board then discussed setting a public hearing to re-zone land from agricultural to Rural 3 and Rural 5, new zones created in the town’s Rural Guilderland Open Space and Farmland Protection Plan and Rural Guilderland Design Guidelines.
The plan was developed to protect rural western Guilderland.

The laws, like a Planned Unit Development, will take effect when a developer receives planning- and zoning-board approval for such a project. Currently, a developer has been before the planning board for a subdivision that would need Rural 3 and Rural 5 zoning districts.

A public hearing for Oct. 18 was set to discuss this. The Rural 3 hearing will be at 7:30 p.m. and the Rural 5 hearing will be at 8 p.m.

Revisit the decision"

Thomas’s Brandle Road property, now zoned Multi-Family Residential, is in the middle of the 15,000 acres of land that may be re-zoned.

At that point, Sherwin asked the board if it would consider rethinking its re-zone of Thomas’s land.
"There’s been quite a bit of controversy over that project, especially with the village’s water needs," Runion said. "I have concerns with the litigation and lawsuits."

Sherwin said he just wants to board to look at its re-zone decision again.

Councilman David Bosworth asked if the board can do this while the lawsuits are pending.
"I don’t think it’d be advisable," said town attorney Richard Sherwood.

Bosworth said the re-zone for Thomas was made based on the advice of John Behan, who created the rural Guilderland study.
"We had no idea how specific the zoning was going to fall then," Sherwin said.

Thomas told The Enterprise that using the new law to reconsider his zoning is "unconstitutional."
Asked what he would do if the board were to change his zoning, Thomas said, "I don’t believe they will change the zoning."
Later, he said, "I’ll cross that bridge when and if it comes, but I don’t think it will come."

At Tuesday’s meeting, Sherwin said that he respects Thomas and thinks a senior-housing project is a good idea. But, he said, now the town has a lot of information, specifically on water issues, that it didn’t have before.

Town planner Jan Weston said that she can ask the village how it feels about the Multi-Family Residential zoning for Thomas.
Town Hall was packed with village residents who supported the senior housing last year, said Councilman Michael Ricard.
"Just because a lot of people support the project doesn’t mean it’s good," said Sherwin, "knowing what we know now."

If a developer wants to take his chances on whether he’ll get water is not the town board’s concern, Ricard said.
"These are all legal issues and I’d prefer if it we not revisit it," he said. "...Most of the residents want senior housing."

Another developer, Jeff Perlee, had said in July he had land in the village — where water would be accessible — that could be used for senior housing.

At Tuesday’s meeting, Runion agreed with Weston’s suggestion and said that the village should look at the re-zone before the Sept. 6 town board meeting.
"How does that impact the litigation"" asked Bosworth.
"I don’t think it has any effect," said Runion.

Altamont’s trustee, Whalen, said the village will be more than willing to look at the re-zone. He said that, if the new law had been in place last year, it may have eliminated problems the village has now.

At the Sept. 6 meeting, Runion said Tuesday night, the board can discuss whether it will revisit its re-zoning decision.

Ricard repeated that he did not want to revisit the decision, but he said he didn’t care if the village reviewed it.
"If the village doesn’t agree with the zoning, we’ll let the board decide if it wants to revisit it or leave it alone," Runion told The Enterprise after Tuesday’s meeting.

Wednesday evening, however, all this became moot.