ALTAMONT — The Altamont Board of Trustees on Tuesday voted, 4 to 1, to rezone, for the second time in less than a year, from residential to commercial the property at 107-109 Helderberg Ave., once again paving the way for Stewart’s to build a new shop on the site.

Mayor Kerry Dineen along with trustees Nicholas Fahrenkopf, Michelle Ganance, and John Scally voted for the change while Trustee Dean Whalen cast the lone dissenting vote against the rezone. 

Chuck Marshall, a real-estate representative for Stewart’s, told The Enterprise he anticipates making variance requests of the zoning board at its  Dec. 10 meeting, but said he didn’t know the exact number of variances the company would be seeking. 

In December 2018, the first time the board approved the rezone, in a 3-to-2 vote, Scally had voted with Whalen and against rezoning. This time around, he said, he was looking at the proposed project “not as a microcosm of one group or small entity around it,” but rather, he was taking the “big picture” view.

“And my decision, based on tonight, is for the whole picture of the village and what I feel is right, and my decision is: I’m going to go for it,” Scally said of voting in favor of rezoning. 

Whalen said that, after going through a more thorough the State Environmental Quality Review process and considering not only the rezone but also demolition and construction, the project’s negative impact was even clearer than it was a year ago. Whalen, an architect, had headed the committee that drafted Altamont’s comprehensive land-use plan.

Four years ago, an earlier village board had, also in a split vote, turned down the same rezoning request. Villagers were divided on the rezone; the March elections, which turned in the issue, returned the incumbent trustees who had voted in favor of the rezone to office by a narrow margin.

Article 78

Tuesday’s vote should lay to rest any lingering doubts over the board’s December 2018 split decision to rezone the property.

In April, a small group of Altamont residents filed an Article 78 proceeding in court, challenging the village’s board of trustees as well as Stewart’s Shops, seeking to overturn December 2018 zoning change. 

There were two core components to the petition filed by the Concerned Severson Neighbors with the Albany County Supreme Court in April:

— To annul and vacate the December 2018 law, because the village board had violated state law by segmenting the State Environmental Quality Review process;

— To have the zoning of 107-109 Helderberg Ave. revert back to its original residential designation because, as a commercially-zoned parcel, it was not in accordance with the village’s comprehensive plan, and, therefore, a case of illegal spot zoning. 

In July, prompted by the Article 78 filing, Stewart’s reapplied for the zoning change it had already been approved for. In doing so, the company and village board were able to address one of the two bases of the lawsuit: That the board of trustees failed to comply with the SEQR process.

In September, the village board successfully argued that the Concerned Severson Neighbors had failed to show that the rezone was illegal. The group subsequently withdrew two of the six claims it had made — or the other basis of the lawsuit: That the rezone was a case of illegal spot zoning and that rezoning was not in accordance with the village’s comprehensive plan.

And on Tuesday, the remainder of the lawsuit was rendered moot.

By adopting a new local law (the same rezone as in 2018), the village board took the subject of the lawsuit and rescinded it, John Hartzell, the village attorney, told The Enterprise. 

In addition, Hartzell said, by going through the approval process for a second time, the board was able to address, procedurally, some of the issues that were raised in the lawsuit. Hartzell added that the group may decide to challenge the new local law; that’s its right. 

A call to Gary Bowitch, the attorney for Concerned Severson Neighbors, was not returned before press time. 

Carol Rothenberg, whose home is currently separated from the Altamont Boulevard Stewart’s shop by the duplex at 107-109 Helderberg Ave., said to The Enterprise about the board’s decision to rezone, “I’m disappointed after so much effort by so many people has been put forth to encourage Stewart’s to work within its commercial footprint.”

Approved 

At its September and October meetings, the board had put off making a decision on the rezone, twice citing the need for more time to determine what, if any, impact the project would have on the environment. 

At the Nov. 19 meeting, the board determined that, for three of the 11 questions in Part 2 of the short-form SEQR, the project would have a moderate impact:

— Will the proposed action create a material conflict with an adopted land-use plan or zoning regulations?

— Will the proposed action result in a change in the use or intensity of use of land? 

— Will the proposed action impair the character or quality of the existing community?

The board, however, determined that the impacts were not significant for purposes of SEQR, reasoning that: 

— The property being altered, 107-109 Helderberg Ave., “in its condition and use,” is relatively small: .17 acres; 

— The rezone is consistent with the village’s comprehensive plan and extends an existing, contiguous zoning district: Central Business; 

— The property is being rezoned to a zoning classification that it previously had; 

— The parcel has a history of commercial use; 

— The project will result in a building or replacement store that is more “harmonious with the architecture” of the village than the current shop; 

— The project advances the village’s stated policy of  promoting business growth in the Central Business District to meet the needs of village residents; 

— The aesthetic impact that will be incurred from the loss of trees is constrained to a small area of the village and will be mitigated by new plantings; 

— The number of properties impacted by the project is limited to “a few,”; and 

— The project is an expansion of a well-known business onto an adjoining parcel, and improves the function of the property by providing more space and amenities for customers, while also improving the site’s parking configuration and its traffic flow.

What a long, strange trip it’s been

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

In October 2015, the village board, in a deadlocked 2-to-2 vote, denied Stewart’s request to rezone the parcel; a zoning change requires a majority vote.

 Trustee Whalen and Mayor Kerry Dineen had both been trustees when the vote was taken in October 2015. Whalen opposed the motion; Dineen was in favor of it. The other members of the board — Nicholas Fahrenkopf, Michelle Ganance, and John Scally — are new since then.

In October 2016, the store received a “standard upgrade,” for an estimated $150,000, which included new flooring, new lights, new counters, and an updated bathroom.

Baumann sold the property to Stewart’s in August 2016 for $217,500.

Three years after the deadlocked denial, in September 2018, Stewart’s filed an application with the village again seeking to change the zoning from residential to commercial for the Helderberg Avenue property that it now owned.

At its November 2018 meeting, the village board set a public hearing for the following month for Stewart’s rezone request.

On Dec. 12, 2018, the Altamont Village Board voted, 3 to 2, to rezone from residential to commercial 107-109 Helderberg Ave., paving the way for Stewart’s to build a new shop on the site.

Mayor Dineen, and trustees Fahrenkopf and Ganance voted for the change while trustees Scally and Whalen voted against it.

Over 100 residents attended the December 2018 meeting, 30 of whom spoke during the public hearing; for every person in favor of the rezone, two were against it. The village also received 34 emailed comments; 19 were against the rezone, 13 were in favor, and two asked the village to slow down its approval process. Three petitions with hundreds of signature both in favor and against the rezone were also submitted to the village.

At the time, views varied as to what exactly Stewart’s was seeking approval for.

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.”

However, after the hearing ended and trustees began their discussion, Trustee Fahrenkopf asked the village attorney, Justin Heller, if the board was also supposed to take into consideration the demolition of the home and construction of a new Stewart’s shop.

Heller told Fahrenkopf the demolition and construction should be considered. 

After further discussion, the board of trustees determined that it could not complete its SEQR on the proposed zoning change as well as the construction of a new shop because Stewart’s had not submitted a completed site plan. 

And so, the decision was made that the board’s action would deal only with the rezoning of the parcel, with the understanding that the planning board would not approve a site plan that created a “moderate to large” material conflict with an adopted land-use plan or zoning regulations.

The village board then voted, 3 to 2, to rezone from residential to commercial the two-family home at 107-109 Helderberg Ave. Then, in April of this year, a group of Altamont residents sued the village’s board of trustees as well as Stewart’s Shops, seeking to overturn the zoning change.

Where the village board ran into trouble was that it appointed itself the project’s lead agency, whose purpose is to coordinate the SEQR process. A lead agency, according to the Department of Environmental Conservation, cannot delegate any of its determinations to another agency, which, according to the lawsuit, is what the village board did when it said it would delegate to the planning board the site-plan review. 

In July, prompted by lawsuit, Stewart’s reapplied for the zoning change that had already been approved in December 2018. In doing so, the company and village board were be able to address one of the two bases of the lawsuit: That the board of trustees failed to comply with the SEQR process.

At its July meeting, the board of trustees set a public hearing for September for Stewart’s second rezone request. 

In August, the village board successfully argued that the Concerned Severson Neighbors had failed to show that the rezone was illegal and the group withdrew two of its six claims.

At the September public hearing for the second rezone request, about 80 residents attended. And of the approximately 30 people who spoke, more favored the rezone than opposed it— a marked contrast to the previous public hearing on the issue.

In addition, the village received 27 emailed comments; 11 were against the rezone, 14 were in favor, and two letters requested a scaled-down project.

After the public hearing, the five members of the village board deliberated for about an hour and ultimately decided that they needed more time with their environmental review, in part because the board had, just a day earlier, received a new in-depth review of the proposed zoning change from Nan Stolzenburg, who had guided the village’s master-planning process. She had also prepared an analysis of the project when it was first proposed in 2015. 

The board announced it would again take up the rezone request at its October meeting.

Then, at its October meeting, citing the need to be able to thoroughly explain its reasoning in determining what, if any, impact the rezoning of 107-109 Helderberg Ave. and construction of a new Stewart’s shops would have, the Altamont Board of Trustees for the second month in a row made no determination on the rezone of the property, and said that it would again take up the project at its November meeting

At the October meeting, the village board went through Part 2 — the 11 questions — of the state’s short-form environmental assessment review. After answering each of the questions, the next thing the board had to do was to come up with a determination of significance, which is the third and final part of the short-form environmental assessment review.

In the determination of significance, for each question in Part 2 that was answered “moderate to large impact may occur,” the village board is to explain in detail why the proposed project “may or will not” result in an adverse impact on the environment. 

At this point, the board must decide if the moderate-to-large impacts can be mitigated with processes already in place in the village, for example, zoning.

While, legally, the board would only have to explain its reasoning in answering the first four environmental assessment questions, it was advised by the village attorney, Hartzell, that, in light of the Concerned Severson Neighbors lawsuit, the board should explain its reasoning for its answers to each of the 11 questions. 

On Tuesday, a summary of the board’s reasoning, explained earlier in this story, was read to the public.