Guilderland planning and zoning has gone off the rails

To the Editor:

I am writing this letter to voice my 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. To clarify, I was heartened by the responses and the work of the planning board at its last meeting before Thanksgiving.

They held true to their responsibilities and handled their cases in a manner that I had never seen before. They raised appropriate concerns about the 2390 Western Ave. project, and passed it on appropriately to the zoning board of appeals. That is where all sense of reason ended.

During the zoning board of appeals meeting on Dec. 2, I was never so appalled to see a board act as it did. The above project was rammed through without proper consideration of the zoning laws for the town, the laws of New York State, Consolidated Laws - Town Law, Article 16 - Zoning and Planning.

In addition, comments were made that were totally out of line by the chairman. For example, he made a statement that, if the people calling into the make comments during the public hearing don’t live near the project, it shouldn’t bother them and the comments don’t need to be considered because they would not have standing in a lawsuit against the town.

That is wrong and gives the public the impression that their comments are not warranted or wanted. It also ignores the fact that no one lives in the immediate area of this proposed project.

But the larger problem is that the chairman accepted without verifying or questioning the town’s chief building inspector/zoning officer’s statement of what our zoning code actually says regarding where the height of a building should be determined.

It clearly says from the “front entrance,” and the concept of “main entrance” is something the zoning officer created on her own. It is the role of the zoning board of appeals, not of the zoning inspector, to interpret the law!

In fact, in a recent decision by Judge Peter A. Lynch, he reiterated that the zoning board of appeals has the power to determine the interpretation of the zoning laws.

There are concerns about this expansion, namely the size of the expansion, which should not occur unless there is an approved variance from the zoning board of appeals. The chairman and most of the rest of the board focused on whether or not a small variance should be granted based on measuring the height of the building from the rear entrance, which is only true when using the zoning officer’s non-existent concept of “main entrance” instead of “front entrance.”

In addition, there are concerns about traffic in the area as well as conformity to the neighborhood. The owner wishes to add on nine apartments to a currently occupied building that houses all local business. While this is not a misuse of the property per se, it is very out of character for the neighborhood. 

Listening to the chief building inspector/zoning officer go on about how the zoning law needed to be cleaned up to show this is an appropriate use, and that “the basement level” in the front  does not count in calculating the number of stories in a building is frightening.

Saying that the measurement of the building stories is from the main entrance and not the front of the building is simply false. Where was the town attorney who is assigned to the ZBA on this night? The lawyer needs to be present in these meetings and I have yet to see one attend any of the ZBA meetings.

Perhaps, if a lawyer were present, he could keep the town out of trouble. A quick look at our town's code would have shown that the zoning officer was falsely claiming that additional stories are measured from the “main entrance.”

The local zoning law clearly states, “The vertical distance measured from the average elevation of the proposed finished grade at the front entrance of the building to the highest point of the roof for flat roofs, to the deck line for mansard roofs and to the median height between eaves and ridge for gable, hip and gambrel roofs.”

The front of the building clearly faces Western Avenue and everyone including the zoning officer stated this during the meeting. When the apartments are finished, the front of the building still faces Western Avenue, although there will be another entrance to the building that the apartment tenants will use.

The fact that the apartments will use another entrance does not change the fact that distance is measured from the front entrance. If you are going to interpret the laws of the town, please read them and be accurate to the law and not the wants of the developers to maximize their building.

According to Local Town Law Section 290-24,  “... the maximum height of a principal structure shall not exceed either 2 ½ stories or 35 feet …. This structure will exceed that height with the addition of 2 stories of apartments when measured from the Front.”

During the open hearing for this project, several residents called in to voice their concerns about the project, the height of the proposed building, and how it does not meet the requirements for a variance. In fact, one resident called and was cut off when she was about to review what the criteria is for variances.

Mr. [Chairman Thomas] Remmert cut her off, saying they know what the rules/laws are. Well, Mr. Remmert, clearly you do not. I feel it necessary to reiterate for you, your board, and the public what they are:

Pursuant to the Laws of New York, Consolidated Laws Section 267-A of Town Law, (Board of Appeals Procedure) it clearly states the following:

“ … b) No such use variance shall be granted by a board of appeals without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship.In order to prove such unnecessary hardship the applicant shall demonstrate to the board of appeals that for each and every permitted use under the zoning regulations for the particular district where the property is located, (1) the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence; (2) that the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood; (3) that the requested use variance, if granted, will not alter the essential character of the neighborhood; and (4) that the alleged hardship has not been self-created.”

In this particular case, and in fact in almost all cases I have seen before this board, none of these criteria are ever reviewed or commented on. This particular structure will be totally out of character for the area of town where it is and indeed anywhere in Guilderland. It is next to a golf course on one side, and a motel on the other. The motel is a one-story structure.

After a non-review of whether the project met the criteria for the variance by providing the needed documentation, which was not provided or even asked for, the board voted to approve the project with one negative vote.

This entire board needs to resign and people who have respect for the laws of this town should be appointed.

Robyn Gray


Editor’s note: See related story.

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