GUILDERLAND — The town is considering changes to its zoning code, including one that would clarify where senior independent-living facilities can be built. This may stymie the Viscusi Builders’ hope of building a facility at 493 Church Road.

Through its attorney, Charles Dumas of Lemery Greisler LLC, Viscusi Builders told the planning board on April 24 that its request should be grandfathered in, regardless of zoning-code changes made from this point on. Viscusi met with town officials more than a year ago and was told that a residential facility for independent living was a special use permitted in the zone, Dumas said.

On that basis, Dumas said, Viscusi put the land under contract. “The zoning change ... guts this project as proposed,” Dumas told the board.

A public hearing on the proposed changes to the zoning code, which the planning board has recommended, is scheduled for May 21. Also included in the changes are an increase to the maximum allowed height of buildings in four zoning districts, and a definition of and list of regulations for self-storage facilities, including indoor facilities.

Viscusi wants to build a 48-unit apartment complex of 12 buildings on 9.08 acres, for people aged 55 and older, but has not at this point submitted a complete application to the town. The land, which is currently vacant, is in an RO40 single-family residential zoning district, a residential-overlay district in which the minimum lot size is 40,000 square feet.

Of the 9 acres, 5 acres are buildable, and 2.5 acres are wetlands, Dumas told the planning board. Dumas said the developer planned to connect to public water and sewers on Church Road.

At one point, Guilderland officials had considered banning these facilities on town roads altogether, but the changes the town is now proposing would allow senior facilities on any state or county roads, and on town roads as long as they are located within 500 feet of a state road or there is direct driveway access onto a county road. In addition, the site chosen must have public sewer and water.

Zelindo Viscusi declined to comment on Friday, and Dumas did not return calls.

Guilderland’s zoning board of appeals had referred the application back to the planning board to ask for a recommendation of whether or not it should accept an application, in light of the proposed changes to the town’s zoning code.

Town Planner Kenneth Kovalchik said at the April 24 planning board meeting that he had told the Viscusi Builders in the late fall or early winter of 2018 that the developer probably should not apply for this use on the Church Road property, because the town was considering a prohibition of all senior uses on town roads.

At the April 24 meeting, Kovalchik told Dumas that, if the changes to the zoning code are approved, Viscusi would need to apply for a use variance if he wishes to go ahead, and that those are difficult to obtain.

Planning board Chairman Stephen Feeney told Dumas, “If this law change were to go through, we’re not rendering the land valueless.” He suggested it could be used to build single-family homes. Kovalchik said that the applicant could build a cluster subdivision in the zoning district, with 15,000-square-foot lot sizes.

Dumas responded “This is a narrow site that doesn’t really lend itself to single-family development.”

Planner’s advice

Kovalchik wrote several comments in a memo to Feeney on April 19:

— The planning board should consider whether the 100-foot setback from a single-family district that is another proposed change to the zoning code is appropriate, or whether it should be increased or decreased. Viscusi’s current plan would locate some of his buildings 35 feet from a single-family zoning district.

— The planning board should consider whether the proposed requirement for a lot to be located within 500 feet of a state highway is appropriate, or whether it should be increased or decreased. One of Viscusi’s property lines would be 1,200 feet from Route 20, and another 1,500 feet away.

—If Viscusi’s application were to be accepted, and if the local law were to be adopted, Viscusi would need to apply for an area variance for setbacks and a use variance for proximity to a state highway.

Kovalchik’s memo advised the planning board to recommend to the zoning board that it not accept Viscusi’s application until the developer has received an area variance for setbacks and a use variance for proximity to a state highway.

Feeney said at the April 24 meeting that a GIS analysis should be done, “to see how these proposed changes are affecting properties.” Geographic Information Systems integrate data with maps. Then a discussion should follow the GIS analysis about whether these projects are or are not being allowed, Feeney said.

Feeney told Dumas that the applicant is free to pursue this application under the existing code if he wants to, at his own risk.

Different boards have different roles

“If this gets submitted, we’re obligated to review it, the way the code reads now,” said Feeney of the planning board. He added, “I’m going to be hesitant to make a recommendation on the town board on grandfathering anything; that’s their determination.”

The planning board decided to send the matter back to the zoning board without making any recommendation. The planning board members agreed that this type of facility is currently allowed in the zoning district with a special-use permit. So, if an application were to be formally submitted before the zoning is changed, the planning board would be obligated to review it.

The planning board voted unanimously to approve the proposed changes to the zoning code, with the addition of Feeney’s suggestion about a GIS analysis of where the sewer and water infrastructure exists, and how the setback parameters will allow and not allow these facilities to be built.

It would be up to the town board to make the zoning changes into law.

There are currently 691 senior dwelling units proposed, approved, or under construction in Guilderland. The 48 units at 493 Church Road, if proposed and approved, would bring that number to 739.

This figure does not include existing facilities for seniors such as Omni Senior Living on Carman Road (96 units); Serafini Village on Western Avenue (64 units); Brandle Woods Apartments in Altamont (32 units); Brandywine Apartments on Brandywine Parkway (64 units); Brandle Meadows on Brandle Road (72 condominiums); or the condominium subdivision at Mill Hill off Route 155 (73 units).

It also does not include assisted-living facilities: The Atria, Promenade at University Place, or Westhaven on Gipp Road. Nor does it include skilled nursing facilities: The Grand Rehabilitation and Nursing at Guilderland on Route 146 in Guilderland Center or Our Lady of Mercy Life Center on Mercy Care Lane, off Western Avenue.