ROTTERDAM -- A mid-level appeals court on Thursday overturned the Rotterdam Town Board zoning decision that established a new senior living district for the planned Whispering Pines senior complex on Helderberg Avenue.
The Third Department Appellate Division court in Albany found that because neighbors had formally filed a protest petition against the controversial change, the Town Board vote required a "supermajority" -- at least three-quarters of board members -- in order to approve the zoning change.
The zoning change would be necessary for the 496-unit senior housing project to go forward on a former golf course in the southeast corner of the town, which is primarily rural and single-family residential.
The July 2018 Town Board vote was 3-2 in favor of the change, which falls short of the "supermajority" requirement, the five-judge panel unanimously concluded. The same five members are still on the Town Board.
Town Supervisor Steven A. Tommasone nevertheless said he wants to bring the proposal to a new vote to try to get the zoning approved, noting that on all the other issues project opponents raised in the lawsuit, the appeals court sided with the town.
"This decision clearly lays out that the Town Board was correct in its decision," said Tommasone, who is a strong supporter of the senior housing project. "I intend to bring this back as is ... hopefully, we'll have the votes for this project to go forward."
Neighbors who have been fighting the plans cheered the decision. "This is a win for David over Goliath," said Jack Dodson, who lives next to the project site and has been its most vocal critic. "It shows that the average citizen can go up against a very wealthy developer and be able to win."
The new court decision reverses a March 2019 decision by state Supreme Court Justice Mark L. Powers of Schenectady, who dismissed the lawsuit after concluding that a 100-foot buffer zone between the project and neighbors invalidated the need for the "supermajority" vote.
State law requires a supermajority approval when the owners of 20 percent of the "immediately adjacent" land object to a zoning change. The question was whether the buffer meant the neighbors were no longer "immediately adjacent."
The appeals court found that because an emergency access road would pass through the planned buffer zone and was necessary to the project, the 100-foot strip was part of the project, and the adjoining neighbors could validly petition against the zoning change. "Approval of [the zoning change] by a supermajority vote of at least three-fourths of the members of the Town Board was required and, as [the law] was not approved by such a supermajority vote, it was not validly enacted," the court concluded.
The project, proposed by Lecce Senior Living of Niskayuna, would develop the 90 acres of the former Whispering Pines Golf Course as a senior housing complex, valued by the developer at about $55 million. While final site plan approvals are still pending and water and sewer connections aren't in place, the developer this winter was clearing land for a road to be used for tree removal.
Developer Lou Lecce could potentially appeal the decision to the state's highest court, the Court of Appeals. Lecce did not respond to a request for comment Thursday afternoon.
While finding the approval should have required a supermajority, the Appellate Division rejected the other legal arguments made by the neighbors. Their main objection claimed the new zoning was an example of "spot zoning," allowing a complex that was incompatible with the surrounding single-family residential area.
The court also rejected an argument that the zoning change violated the town's comprehensive land use plan. "We're in a good place that the court rejected that argument," Tommasone said.
Tommasone said he'll ask the Town Board to hold a public hearing when it meets on Wednesday, starting a process that could lead to a new vote.
"We want to take care of our retired and senior population and have a place where they can be independent, and age in place," Tommasone said. "I intend to call for another public hearing, and keep this law as written."
The zoning change vote in 2018 came after Lecce previously sought to have his proposal approved by the town as a planned development district, a different form of zoning change. Lecce verbally withdrew that proposal in the face of neighborhood opposition, and the Town Board then defeated it.
Dodson said the neighbors aren't opposed to the town having more senior housing, but feel the "rural, almost agricultural setting" next to their homes isn't the right place for it. "A huge thank you to the neighbors who supported the litigation, and to The West Firm, the lawyers who were willing to take on a case for an underdog," he said.