GUILDERLAND — The planning board last week gave concept approval to a unique application that will allow residential building in a local business zone.

Bryan Smith of Bryland Homes wants to create four lots on the 3.85 acres that house the Bavarian Chalet complex on Frenchs Mill Road. An existing home is on the property, which is owned by the family of Franz Zwicklbauer.

Town Planner Jan Weston recommended, in a memo to the planning board, that the property be rezoned from local business to residential. If the project received final approval as presented, she wrote, the board would create four commercial lots.
"I’ve never seen it," said Chairman Stephen Feeney. "It’s somewhat unique."

Zwicklbauer told the board that the property had been zoned for business when his mother’s nearby house was built and when his was, also.
"Do you have a problem having it rezoned"" said board member Michael Cleary.
"Time," Zwicklbauer said.

Land surveyor Sang Y. Kim, of Latham, said that Smith would prefer deed restrictions requiring the new owners to obtain special-use permits for businesses, rather than rezoning.

He told the board that owners with professional licensing may wish to open for business on the new lots, which would have homes costing above $500,000.

Smith said he also preferred deed restrictions to what he called spot-zoning.
"It’s a little bit strange," said Chairman Feeney. Local business zones exist for older homes in areas that became developed, he said. Residential subdivisions are not the purpose of local business zoning, he said.

Two of the lots are keyhole lots, and the board suggested that Smith create access to them according to town standards, which would allow a shared curb cut or a cul-de-sac.

The board asked for more information about the project, including topography maps, wetland maps, and the angle of repose for each site.

The keyhole provision is not intended to give owners more lots in a subdivision, Feeney said.
"I’m not saying you have to create a cul de sac. I don’t care what kind of houses you put in there"That’s your choice. It’s irrelevant. It would make more sense to be rezoned residentially, rather than deed-restricted," Feeney said.

Bryan Smith’s father, Bob Smith, is a Realtor who is representing Zwicklbauer. Bob Smith told the board that he did not find a cul-de-sac rule in the town subdivision regulations.
"This is not rocket-scientist"science," Smith said. "Just use common sense." Smith said that a delay in time costs money.

The board said that a 60-foot right-of-way is required for access to the lots, and it suggested that the plan show a driveway off nearby Hillshire Drive, a private road also owned by Bryan Smith.
"We don’t have a problem with three lots," Feeney said, but he said that, after more detail is provided, the plan may not end up with three lots.

Trouble and confusion

Marty Kehoe and his wife asked the board to review their site plan, which had been scratched off the printed agenda. The board listened as the Kehoes explained that they want to add on to one of the apartments they own at 2009 Western Ave., and also add another apartment unit.

Kehoe practices law out of a downstairs unit. The two apartment buildings there currently were built by Kehoe’s grandfather, he said.

Kehoe said that the application may be complicated by a pre-existing non-conforming use.

Weston did not attend the board meeting because of a family emergency, but she rushed in to the meeting after watching on live television the board discussion of the Kehoe application. She said that the town zoning officer Donald Cropsey did not realize the Kehoes wanted to add an apartment when the item was first put on the agenda.
"Mr. Cropsey specifically asked us to take it off the agenda," Weston said. "It will be an expansion of a non-conforming use."

The board asked the Kehoes to work out their application with Cropsey before returning to the planning board.
"Thanks for coming, Jan," board members said.

Other business — In other business, the planning board:

— Approved a site plan to allow a hearing aid and repair business at 1855 Western Avenue. The application was requested by Robert Bourgeois;

— Approved a site plan for Nuri Ozbay to reconstruct a former Sunoco gas station at 1611 Western Ave. Ozbay’s relative owns a nearby station. The board asked Ozbay to add shielded or recessed lighting and to increase the landscaping, if possible. Sang Y. Kim, who also represented Ozbay, said that they would install a new sign that meets town standards.