Niskayuna neighborhood group plans to appeal OK of project

PHOTOGRAPHER: Steven Cook

A neighborhood straddling the Niskayuna-Colonie line is taking its concerns about a Colonie subdivision to a state appeals court.

An attorney for the Birchwood Neighborhood Association is currently working on an appeal to the Appellate Division of a lower court’s December ruling against them in their challenge to the subdivision’s earlier approval. The appeal is due later this month.

At issue is the subdivision called Forest Hills, a 75-unit project that is to be located on the east side of Denison Road in the town of Colonie.

The neighborhood association has had multiple concerns about the project; chief among those concerns has been traffic. They fear that residents there will use their neighborhood side streets as cut-throughs to Route 7.

Members of the neighborhood association also this month took their concerns to Niskayuna town officials by way of a two-page letter outlining their grievances.

In response to that, town officials said this week they were drafting a letter to Colonie Town Supervisor Paula Mahan asking for more information on the project, as well as the final traffic study.

Niskayuna Town Supervisor Joe Landry noted that Niskayuna has had a good relationship with Colonie in the past. He also said his office has been in contact with Colonie previously about the project, getting a draft traffic study, but he hasn’t seen the final one.

The Birchwood legal action was against the Colonie Planning Board, the town of Colonie and the Forest Hills developer, Shelco Development.

Handling the case for Shelco is attorney Donald Zee. He could not be reached for comment Tuesday. The town attorney for Colonie, Michael Maggiulli, also could not be reached. Sarah Wiest, a spokeswoman for the town, on Tuesday noted the ongoing legal proceedings, saying the town had no comment.

The Forest Hills subdivision is one of three in that general area in the works, with as many as 240 total homes possible. But it’s the Forest Hills subdivision that has the Birchwood residents most concerned.

Birchwood neighborhood resident Joel Weingarten, the association’s vice president, said this week that the main concern is the traffic. He said Forest Hills will have only two outlets, one feeding into Birchwood’s side streets, with connection to the main road through Walnut Lane.

Association members want a third connection, one to Vly Road to the south.

Weingarten said he believes no one is looking at the bigger picture.

“We are not against him building; we just want it done properly and respectfully,” said Weingarten, who lives in the Colonie portion of Birchwood.

In the legal challenge, the neighborhood is alleging that the project was improperly approved. The final approval came in December 2011. There is no stay currently in place, meaning if the developer meets requirements set by the Colonie Planning Board in the approval, work could begin, the attorney for the neighborhood association said.

It was unclear if those requirements have been met or are close to being met. No work has started.

Original concept approval was given in 2002. Zoning regulations later changed, but the project was grandfathered in. The neighborhood association contends it was improperly grandfathered in and the new rules apply, so the subdivision must be redone to conform.

Ruling in November in state Supreme Court in Albany County, Judge Richard Platkin noted Shelco’s arguments that they put much time and effort into the plan after the 2002 approval and that it was a “legitimate legislative determination” by the town to grandfather in projects whose concept already had been approved.

Platkin wrote that the neighborhood association had a “heavy burden” to overturn the town’s decision and that he felt that burden wasn’t met.

Attorney for the neighborhood association Val Washington said this week that she agrees there is a heavy burden, “but we think we met it in this case.”

Washington argues that there was no rationale given in extending the grandfather provisions, given the changes in the town zoning rules in the years since.

“There was no explanation of why they felt it was reasonable,” Washington said.

Washington said she expects arguments in front of the Appellate Division before the end of the year.