GUILDERLAND — The approval of a three-and-a-half-foot variance earlier this month by the Guilderland Zoning Board of Appeals pointed up inconsistencies in the recently-revised law on variances for height and drew criticism from several residents.

During the Dec. 2 meeting, which included a public hearing on the proposal, the board approved a special-use permit request from Troy Miller to convert his existing office building at 2390 Western Avenue to a mixed-use building while also approving the three-and-a-half-foot variance — town code doesn’t allow for buildings taller than 35 feet. 

Miller is now approved to add two stories to the building, with each floor slated to contain four three-bedroom apartments, and an additional apartment on the first floor. He had originally proposed a five-apartment, one-story addition to the single-story building 

Chief Building and Zoning Inspector Jacqueline Coons began the discussion about Miller’s project by explaining that the building was a single story with a basement, and that the designation goes back to the Hiawatha Trails “discussion we had.”

It’s considered a one-story building with a basement because more than half of what would be considered the first floor — the basement — is below grade, Coons said. The town changed the definition of the height of the building after receiving the Hiawatha Trails application because there had been so much interpretation about the height of a building, she said.

However, the town board changed the definition of the height of a building in only one part of the code, she said, removing the reference to stories, while adding that the height of a building is limited to 35 feet at the entrance of the building, not the front yard.

In the case of the Miller building, Coons explained later in the meeting, the front yard faces Western Avenue but Coons, as the zoning administrator, made the determination that the front yard wasn’t the entrance to the building.

“I didn’t really pay much relevance to Western Turnpike,” she said. Rather, she paid attention to the answers to these questions: “Where are most people entering the building? Where are most of the people parking with the proposed use, where are these people going to park, where are they going to enter the building?”

Coons went on, “If the grade-level floor at Western Avenue is actually just a basement, do you even consider that an entrance — it didn’t seem like it met the definition of an entrance; it’s more of just a doorway people can enter and exit the building from. But most of the business is done at this entrance where the majority of the parking is,” which is the rear of the building when looking at it from Western Avenue.

Coons also said where the town “missed on the code amendment” was in 280-24, because the reference to stories wasn’t removed from that part of the zoning code. 

“So, although the definition for height of a building, intended to only refer to the height that you can measure with a ruler, the dimensional criteria in the zoning code still restricts it to 35 feet and-or two-and-a-half stories, whichever is greater,” she said; that is something in the code the town has to “clean up.”

Coons, going off of the original plans used to construct the current building, estimated the new building’s height at its peak to be 38.5 feet at the entrance, meaning Miller would need a three-and-a-half-foot variance from the 35-foot height restriction.

“That’s not a lot,” Chairman Thomas Remmert said.

Remmert said that, if Miller were to build the building with a flat roof, there wouldn’t be a need for a height variance, but it would look pretty — “Stupid,” another board member interjected. 

Remmert’s point, he said, was that Miller could make the building aesthetically unappealing but code-compliant.“So, do we want to have a nice-looking roof that needs a variance — we’ve been down this road before with other cases,” he said.

The aesthetics of the building appeared to be worth a three-and-a-half-foot variance, board members agreed.

Remmert asked other board members if they thought there would be an undesirable change in the character of the neighborhood — one of the factors taken into consideration when granting a variance. Although there would be a change, no one said it would be undesirable.

Remmert said there would be more of an undesirable change if Miller put a flat building on the roof.

When Miller called in to the remote meeting to discuss his project, Remmert said the roof wouldn’t need much of a variance. “And I think you heard me say, if you did a flat roof, you wouldn’t need a variance, but a flat roof would look not too good,” Remmert said to Miller.

Miller responded, “We’re pretty proud of the way the building came out.” He said he hoped that it would give him some “credibility” as far as the building “looking beautiful.”

Public comments

Remmert then opened up the public hearing.

Iris Broyde brought up Albany County Supreme Court Judge Peter Lynch’s decision, which halted the construction of a 222-unit development on Rapp Road as well as a proposed Costco Wholesale store. 

Lynch’s decision, Broyde said, “Admonished the planning board for failing to heed the corrupting impact of uncharacteristic building height with incompatible surroundings.”

When the planning board took a look at Miller’s project, to its credit, it expressed unanimous concern about the impact the height of the building would have, she said.

Broyde urged the board to pay attention to those concerns.

Gordon McClelland said code is 35 feet and Miller, by making his building 38.5 feet, was self-creating harm — which is another one of the factors taken into consideration when granting a variance.

 Remmert said that a self-created harm doesn’t preclude the zoning board from granting the variance.

If it weren’t for Miller’s design, McClelland said, there wouldn’t be a self-created harm.

“I don’t know if you heard us talking about this,” said Remmert. Then, appearing to make an argument on Miller’s behalf, he said, according to code, Miller is looking for only a three-and-a-half-foot variance; he could eliminate the variance request by putting a flat roof on the building — something Miller appeared to not want to do at all when he called in. 

Remmert created the flat-roof hypothetical and used it a number of times throughout the meeting as justification for granting the variance.

McClelland said that the zoning board could also just deny the variance, allowing Miller to put one story on his building — which had been the original ask.

Robyn Gray called into the meeting and, referring to earlier comments about the zoning board being able to approve variances because every applicant has a unique situation, said, “That may be. But what seems to happen with this particular ZBA is that everything is the exception.”

After the phone calls had ended, Remmert said he didn’t know how the board felt after hearing the comments and that he didn’t “think any of these people are in the immediate area of the project,” adding that some of the callers cited the court case against the town and Pyramid, the “project on 155,” and said the people who filed the suit were “deemed not affected property owners and therefore they had no standing,” he said, because “they didn’t live close enough to the project.”

Remmert continued, “Not that I want to disregard anybody’s comments, I certainly do take those comments to heart but, again, we have to follow the rules on the law, and I don’t think a 38.5 foot height, as determined by the person who is supposed to determine it, versus 35 feet, is all that big a variance.”

“And I think it beats the alternative of having that building with a flat roof on it,” he said, with Coons adding, “Or building out to the side.”

Gray, in a letter to The Enterprise editor this week, wrote of her “dismay, concern, and fear that the town government of Guilderland has gone off the rails in terms of its planning and zoning board of appeals.” She called for the resignation of the current zoning board members and urged they be replaced with “people who have respect for the laws of this town.”

Broyde, too, wrote a letter to the Enterprise editor in which she described Guilderland as a banana republic, circumventing the codified rules for regulating development.