GUILDERLAND — Geoffrey Van Epps, owner of Hiawatha Trails Executive Golf Course, was happy and relieved this week with an Oct. 11 court decision that cleared the way for his golf course to become a senior independent-living facility almost two years after the project was first proposed. 

Seven neighbors in Presidential Estates, across Route 155 from the golf course, had filed an Article 78 proceeding against Guilderland’s zoning board, Van Epps and his wife, and the developer — Hiawatha Land Development LLC, owned by Tony Carrow — asking the court to annul and vacate all of the decisions the zoning board had made made in approving the project. 

Instead, Acting Justice Gerald W. Connolly of the Albany County Supreme Court decided that the plaintiffs did not have standing to maintain the legal action and that, even if they did have standing, their petition would still be denied.

“It’s disappointing,” said Melissa Mayone, one of the seven neighbors pressing the suit. Most could not be reached before press time. Mayone referred The Enterprise to the group’s attorney, Jonathan B. Tingley of Gilchrist Tingley of Troy; Tingley also could not be reached on Wednesday. 

In May, Guilderland’s zoning board of appeals had voted, 4 to 0, to approve developer Tony Carrow’s request for a special-use permit and area variances to build a 256-unit senior independent-living facility that would be four stories and 46 feet tall across Route 155 from Farnsworth Middle School. The 44-acre site is zoned RO-40 and RO-15, both residential districts. The project is also to include a clubhouse, 58 garage parking spaces, 262 surface parking spaces, and 119 banked parking spaces. 

Twenty-two acres of the site are to be dedicated to the town as open space. A multi-use path to be built by the developer will lead toward Winding Brook Drive. A strip of land in between, owned by Bill Lia, had previously prevented the path from reaching services such as the YMCA on Winding Brook Drive or the Guilderland Public Library nearby on Western Avenue. 

This week, though, Supervisor Peter Barber said the town had acquired that parcel “to secure the possible placement of a multi-use path to the library and prevent it from being developed.” 

The town was able to acquire it from the county, Barber said, after the county obtained the property because taxes on it hadn’t been paid.

Carrow’s project was approved on the condition that he build in phases, while making sure he can find enough people aged 55 and older to live in the one- and two-bedroom apartments. 

Decision 

The seven petitioners argued that their access to Route 155 would be impaired by the project and that the project should have been declared a Type 1 project under the State Environmental Quality Review Act, triggering a full environmental-impact study. 

The petitioners also questioned the zoning board’s decision to approve the project without any traffic signal, or the installation of a roundabout, or without moving the entrance for the senior facility from Route 155 further away from the entrance to Presidential Estates.

Connolly found, first, that the petitioners lack standing to bring the suit because, although they are neighbors, they did not identify any actual injury that they would suffer that is different from what any other member of the public may experience. The petitioners would have needed to, but did not, submit evidence showing that their residences are in the immediate area of the intersection, Connolly wrote. 

The petitioners challenged the zoning board’s decision to issue a negative declaration under SEQRA — meaning there would be no in-depth environmental review — saying that the board’s decision to do so was arbitrary and capricious, unsupported by evidence in the record, affected by an error of law, and made in violation of lawful procedure. 

Connolly agreed with the respondents that they had worked with engineers and the state’s Department of Transportation to investigate possible traffic-signal controls but that DOT had decided neither a light nor a roundabout were needed. The DOT did require the installation of a left-turn lane for vehicles travelling Route 155 to turn left into the facility, and that was incorporated into the plan.

Developer-hired engineer VHB had told the zoning board that seniors do not add a lot of traffic at peak morning or evening hours, that a roundabout might make it harder for them to enter the roadway, that a roundabout was cost-prohibitive for a private developer, and that a roundabout did not provide for safe pedestrian crossings

The DOT also found, in November 2018, that conditions at the intersection were “excellent,” that traffic volume and delays there were extremely light, and that the installation of a traffic signal would create a safety issue where there was none. 

The petitioners said that the zoning board should not have issued a special-use permit when the applicant did not either provide for a roundabout or move the driveway. Connolly wrote that the zoning board had relied on the DOT’s analysis, even though it was clear that the zoning board might have preferred a traffic light.

Connolly wrote, “Further, even where a petitioner points to conflicting evidence with regard to whether special permit conditions have been satisfed, a court may not substitute its own judgment where substantial evidence supports the determination of the determining entity.”

The petitioners argued that, when deciding whether to grant the height variance, the zoning board needed to apply a balancing test and consider five factors set forth in town law, but there is no record that reflects the zoning board met that requirement. 

The respondents claimed that the height of the building was necessary to be able to provide a large amount of land to the town as open space, and that it was consistent with design principles that favored building up rather than out, to create fewer impervious surfaces.

The respondents also noted that 81 percent of the proposed building was within allowable height, according to the zoning code, and that only 19 percent was taller; they further argued that, because the next-door Regency Park Apartments were located on land six feet higher topographically than the building site, the visual impact of the 46-foot height would be mitigated. 

Connolly wrote that a court may set aside a zoning board determination only if the board has clearly acted illegally or arbitrarily, or abused its discretion, or merely succumbed to community pressure, and that a zoning board’s decision should be sustained if it has a rational basis. 

Finally, Connolly dismissed the petition and denied the relief it requested. 

Reaction 

Jacob Crawford had served as the acting chairman of the zoning board throughout discussion of the project, since Chairman Thomas Remmert — who serves as a volunteer firefighter in Westmere Fire Department, where Carrow is chief — had recused himself. Alternate Stephen Albert, also a Westmere firefighter, had also recused himself. 

Crawford told The Enterprise on Wednesday that he had not been part of the legal proceedings, but spoke generally about the decision, saying, “I’m glad to see the decisions of the zoning board upheld by Justice Connolly.” He said that the process of considering the project had involved several late-night detailed discussions with neighbors and the surrounding community.

The zoning board “appreciated all the comments we received that were informative as we made the decision,” said Crawford. 

About the grassroots coalition that grew up in response to the Hiawatha Trails project, Crawford said that he thought it was wonderful when neighbors from the surrounding community present their concerns to the board, because that helps inform the board. 

Van Epps, the owner of the golf course, told The Enterprise, “I’m very happy. I think it’s excellent for the town. The town is going to get 25 acres. It’s a wonderful project, and I’m happy the judge went in our favor.” 

 He emphasized that the project will bring walking trails and will have “no impact on traffic,” because, he said, even though the minimum age for residents is 55, most people who move to these facilities are over 70.

“This has been a long road for me and my family,” said Van Epps, who lives in a house on the golf-course property. “The golf course is closed. If I had customers and if I made money, or even if I broke even, I’d still be there. I never thought I’d leave.”

Van Epps, who is 54, is still living in the family home on the golf course, unable to close on the property as the matter moved slowly through the approval process and then the courts. 

He will be looking at moving within the area, possibly to Slingerlands, and will be doing security work, he said.