Minutes of the August 11, 2004 meeting of the PLANNING BOARD OF THE TOWN OF ORCHARD PARK, S4295 South Buffalo Street, Erie County
MEMBERS PRESENT: Lorraine Biryla, Chairman
Paul Bodden
Harold Fabinsky
Michael McGuire
William McNamara
Philip Murray
Eugene Majchrzak, Alternate
EXCUSED: John Bernard
OTHERS PRESENT: Andrew Geist, Supervising Building Inspector
Michael Wolf, Deputy Town Attorney
Sarah desJardins, Planning Coordinator
Thomas Ostrander, Junior Engineer
The Chairman called the meeting to order by stating that if anyone appearing before the Board has a family, financial or business relationship with any member of the Board, it is incumbent upon that person to make it known under State law and the Town Code of Ethics.
Upon a motion duly made and seconded, the reading of the minutes of the July 14, 2004 Planning Board meeting was unanimously waived as each Board Member had previously received copies.
Mr. Murray made a motion, seconded by Mr. McNamara, to ACCEPT the minutes of the July 14, 2004 meeting.
THE VOTE ON THE MOTION BEING:
BIRYLA AYE
BODDEN AYE
FABINSKY AYE
MC GUIRE AYE
MC NAMARA AYE
MURRAY AYE
THE MOTION WAS UNANIMOUSLY APPROVED.
1. 7:30 PM, Continuation of Public Hearing, P.B. Sub. File #40-94, proposed Pleasant Acres West subdivision, Vacant land, north side of New Taylor Road, Zoned R-2 and R-3. Requesting Preliminary Approval of a 98-lot
subdivision. Revised Pre-Application Findings made on 10/9/96. Public Hearing adjourned on 7/14/04.
The Chairman called the Public Hearing to order.
IN FAVOR:
Mr. Elliot Lasky, Developer
Forbes Homes
2635 Millersport Highway
Getzville, New York 14068
Mr. Lasky stated that he is in favor of the project.
AGAINST:
NO RESPONSE
Mr. Fabinsky made a MOTION, seconded by Mr. Bodden, to CLOSE the Public Hearing.
THE VOTE ON THE MOTION BEING:
BIRYLA AYE
BODDEN AYE
FABINSKY AYE
MC GUIRE AYE
MC NAMARA AYE
MURRAY AYE
THE MOTION TO CLOSE THE PUBLIC HEARING WAS UNANIMOUSLY APPROVED.
APPEARANCE: Mr. Lasky, developer
Referencing a correspondence dated August 9, 2004 from Mr. Sullivan, the Chairman told Mr. Lasky that she understands that he has consented to a waiver of the 45-day time limit, per Section 121-10 of the Town of Orchard Park Town code. She noted that this waiver would allow the Board to review the report prepared by SJB Associates received this evening. The members will meet on August 17, 2004 at 7:00 p.m. and advise if there are any additional comments or questions.
The Chairman told Mr. Lasky that the Engineering Department indicates that they have not received an amended preliminary engineering plan. Mr. Lasky explained that the proposed subdivision had to be redesigned because of the recent cul-de-sacs revisions mandated by the Town.
Mr. Lasky submitted documents from 1998 to the members, which he believed had been submitted to Town Engineer Michael Merritt. However, the Engineering Department has not been able to confirm having these records and he could not find a letter of submittal. Mr. Lasky stated that he is not contesting this issue. The records provided to the members include a soil boring report from Earth Dimensions, Inc. and a site plan of the Pleasant Acres West subdivision. Mr. Lasky concluded that the documents contain preliminary information that is not relevant, as more recent detailed geotechnical reports have been conducted. Mr. Lasky stated that he is submitting the information because he believes it validates the information that has been submitted since 1989. Mr. Lasky told the members that based on his most recent meeting with Mr. Bieler, he would not be submitting final engineering plans until certain decisions were made. For example, Mr. Bieler has discussed locating the sewer closer to the R.O.W. Mr. Lasky noted that there is a lot of re-design necessary and that he would like all of these points agreed to before the final engineering plan is provided.
Mr. Lasky further explained that he has no time limit on the review of the project because he would like everyone to be comfortable and know that there are no infrastructure problems with his project.
Mr. Murray made a MOTION, seconded by Mr. McGuire, to TABLE this case.
THE VOTE ON THE MOTION BEING:
BIRYLA AYE
BODDEN AYE
FABINSKY AYE
MC GUIRE AYE
MC NAMARA AYE
MURRAY AYE
THE MOTION TO TABLE WAS UNANIMOUSLY APPROVED.
2. P.B. File #23-04, U.A. Plumbers & Steamfitters Local 22, 3651 California Road, Zoned I-1. Requesting a Building Permit to construct a 3,700 sq. ft. addition to an existing building. Town Board referred to Planning Board on 6/16/04.
APPEARANCE: James Gannon, Scheid Architectural
Jeff Brelsford, Scheid Architectural
Michael McNally, U.A. Plumbers & Steamfitters Union
Mr. Gannon presented a rendering to the members for a proposed addition to an existing building. He told the members that there would be no additional employees hired. The proposed addition is desired to reconfigure space for their training programs, enabling these programs to run more efficiently.
Mr. Murray established that the addition would be ADA compliant.
Mr. Fabinsky confirmed with Building Inspector Andrew Geist that the proposed project is in compliance with all Town of Orchard Park ordinances.
Mr. Bodden made a motion, seconded by Mr. Fabinsky, that the Town Board AUTHORIZE a Building Permit for a 3,700 sq.ft. addition and APPROVE the site plan received 8/11/04 based on the following conditions and stipulations:
1. This is an Unlisted SEQR action based on the submitted Short EAF Parts One and Two and a Negative Declaration is recommended.
2. The site lighting is limited to those fixtures and poles indicated on the approved site plan. All light fixtures shall have flat lens.
4. No outside storage or display is permitted.
5. Dumpsters as shown shall be screened, along with any additional dumpsters, in accordance with Section 144-25 of the Town Code.
6. A landscape completion bond in accordance with the Conservation Board minutes shall be provided for the approved landscape plan, which includes 31% green space.
6. Town Engineering Approval has been granted on 8/11/04.
THE VOTE ON THE MOTION BEING:
BIRYLA AYE
BODDEN AYE
FABINSKY AYE
MC GUIRE AYE
MC NAMARA AYE
MURRAY AYE
THE MOTION WAS UNANIMOUSLY APPROVED.
3. P.B. File # 25-04, Benderson Development Co., Inc., 3930 North Buffalo Road, Zoned B-1. Requesting Special Exception Use and a Change in Use from mercantile use to medical offices. Town Board
referred to Planning Board on 7/1/04.
APPEARANCE: Larry Fineberg, Benderson Development
Jim Rumsey, Benderson Development Architect
Mr. Fineberg presented plans to renovate the former “Super Duper” super market. He explained that the store had fallen into disrepair and neglect while under contract with the previous owner. He told the members that Benderson Development took control of the property and proposes to develop it based on market research and input from Town Board members. He believes that the proposal is exactly what the North Buffalo Road corridor needs and that the project will relate to Benderson’s proposed “Orchard Park Village Center”, proposed across from the OPCSF Credit Union. Mr. Fineberg further believes that Benderson Development is creating something special in this area and that the proposal is critical to the area’s development.
The Chairman established that there are presently no tenants. Mr. Fineberg explained that Benderson Development would like to do something right for the community by renovating the building to fit into what the Town is trying to accomplish in that area. The Chairman asked Mr. Fineberg what would happen if the market did not materialize; would he approach the Board later, proposing that the site be a retail center? Mr. Fineberg stated that the option for a retail site is non-existent as there is no visibility at the location and the existing structure’s footprint is not workable for that use.
The Chairman reviewed the rendering that had been presented and discussed the appearance of the building with Mr. Rumsey. Mr. Rumsey explained that asphalt shingles, brick, stucco, architectural elements, decorative cornices and lighting would be used. The color of the brick will be as shown on the rendering. The Chairman confirmed that the Conservation Board approved the landscape plan. The total green space area will be 15%.
Mr. McNamara asked the applicants if there is a schedule for completion. Mr. Rumsey stated that they would like to have the proposed renovation finished before winter. Mr. McNamara inquired about the vacated “Jubilee” supermarket, a short distance to the south of this site. Mr. Fineberg presented an elevation of this site showing its renovation. He noted that he could not divulge what tenant is interested in leasing this property at this time.
Mr. Bodden noted that he likes the project but has concerns regarding the fact that there are no known tenants. He spoke regarding the vacancy at the M & T building located within the “Jubilee” plaza site. Mr. Fineberg
stated that he believes that the vacant Jubilee store behind the M & T site is the reason for the vacancy. He told the members that Benderson
would like to make the surrounding area better and create a campus like setting.
Mr. Bodden asked if the “Super Duper” site would be for 100% medical lessees. Mr. Rumsey stated that there could be a mixture of professional and medical. However, Mr. Fineberg stated that they would not turn away other professional uses but if the building were leased 80% to medical, it would make sense to have other medical use leases to compliment what was already there.
Mr. McGuire noted that he is disturbed by Benderson Development’s reoccurring presentations to the Board based on speculation. He established that the applicants hope to have the shell of the renovation completed before winter and that the building interior of the site would not be completed. Inside renovations will occur as tenants are procured. Mr. McGuire noted that he believes that the project is good; all he wants from Benderson is a clear grasp as to what is coming into our Town. Mr. Fineberg explained to the members that he has always given full disclosure to the Board to the extent that he could. He stated that it is not appropriate for him to divulge tenant information during contract negotiations. Mr. Fineberg stated that he is more than happy to disclose what he is allowed to.
Mr. Fabinsky stated that the “Super Duper” structure has been an eyesore for a number of years. This and the “companion plaza” (Jubilee) have become rundown and almost “slum like” in character. He is pleased to see the proposed renovations and feels that they are attractive. Mr. Fabinsky stated that he believes that bringing people into Orchard Park will add to the economy of the North Buffalo retail strip.
Mr. Majchrzak established that the site parking lot would be repaved.
Mr. Murray stated that if taken at face value the proposal being presented would be a major improvement to the site.
The Chairman discussed her feelings with the applicants regarding not knowing what tenants would be occupying space in the renovated building. Mr. Fineberg noted that he couldn’t reveal tenant information while contract negations were taking place.
Mr. Fabinsky made a motion, seconded by Chairman Biryla to RECOMMEND the Town Board APPROVE the requested Change In Use from mercantile use to medical offices and APPROVE the requested Special Exception Use Permit for B-1 to B-1 Special Exception Use for medical offices based on the following conditions and stipulations:
1. This is an Unlisted SEQR Action based on the submitted Short EAF Parts 1 and 2 and a Negative declaration is recommended.
2. Fees shall be paid in accordance with Section 144-70C, of the Town Code prior to publication of the Public Hearing Notice.
3. The recommendation is contingent upon the applicant completing the project as proposed on the development plans dated 6/30/04 and the model presented at the 8/11/04 Planning Board meeting and shall revert to its original Zoning Classification if the project is not completed per Section 144-67 of the Town Code.
4. The proposed project is in compliance with the Town's long range comprehensive plan.
5. The applicant has demonstrated a need for the project.
6. The project is compatible with adjoining land uses and proposed developments, and will not have a negative impact on the adjacent land value or public safety.
7. The applicant has demonstrated by history an orderly flow of traffic ingress and egress.
8. The applicant has provided suitable parking facilities.
9. Landscaping as indicated on the proposed plan will provide adequate and improved screening.
10. A landscape completion bond in accordance with the Conservation Board minutes shall be provided for the approved landscape plan, which includes 15.3% green space.
11. Free area for recreation is not required.
12. The nearness and impact on schools and utilities is not an issue.
13. The health and safety of adjacent properties is not affected.
ON THE QUESTION:
Mr. Fabinsky asked if the Board granted “special exception use” for medical offices, does that include other professional offices, or do we need to amend the motion with the option to have that? The Chairman asked Deputy Town Attorney Michael Wolf to respond to this question. It was determined that the request specifies “medical offices”. Therefore, the applicants were instructed to return to the Board for review if they desire to lease to other
than a medical tenant. The Chairman told Mr. Fineberg that he could not amend his request.
THE VOTE ON THE MOTION BEING:
BIRYLA AYE
BODDEN AYE
FABINSKY AYE
MC GUIRE AYE
MC NAMARA AYE
MURRAY AYE
THE MOTION WAS UNANIMOUSLY APPROVED.
4. P.B. File #23-03, Benderson Development Co., Inc., Vacant land, east side of North Buffalo Road (across from OPCS Federal Credit Union) Zoned B-3 and R-2. Requesting rezoning to B-2 to construct two multi-tenant retail buildings and an office building. Town Board referred to Planning Board on 11/5/03. Tabled by the Planning Board on 1/14/04.
APPEARANCE: Larry Fineberg, Benderson Development
Jim Rumsey, Benderson Development Architect
The Chairman reviewed Benderson Development’s responses, dated August 3, 2004, to the questions and requests made by the members during the March 10, 2004 meeting as follows:
The March 10, 2004 minutes state:
1. Mr. Franco was made aware of the concerns of Mr. Thomas Bailey, who is the nearest neighbor to the proposed project. Mr. Franco will contact Mr. Bailey and discuss his concerns and the suggestion Mr. Bailey has offered to have the drive-through located on the south side of the parcel.
The Chairman noted that the Benderson response was, “Larry Fineberg of Benderson Development met with Mr. Bailey at his home on March 15, 2004 to discuss the proposed project. Mr. Bailey was generally in support for the project acknowledging that he lived a commercial area and expected this type of development, however, he expressed concern over the location of the drive thru adjacent to his property. Mr. Fineberg stated that he would speak with the architect and engineer for the project to see if the drive thru could be moved to the other side of the property. After discussing these issues with the appropriate consultants Mr. Fineberg subsequently informed Mr. Bailey that moving the drive thru was not an option because of a stacking issue and the necessity that the driver side window be adjacent to the building. Mr. Fineberg assured Mr. Bailey that we would provide the necessary landscaping and fencing to ensure that the
impact to his property and his privacy were minimized. Mr. Bailey was understanding and satisfied with the result of their conversation. We welcome further conversation with Mr. Bailey to ensure that our plans to buffer his property meets with his approval.”
Mr. Fineberg told the members that since the Public Hearing, he has met with Mr. Bailey. Mr. Fineberg assured the members that his intentions are to work with Mr. Bailey. Changes, based on Mr. Bailey’s input, have been made to the plan. The existing trees will remain and the number of plantings has been increased. A 6-foot high fence will be used to aid in buffering Mr. Bailey from the proposed drive-thru. In Mr. Fineberg’s opinion, the fence should be higher. Mr. Fineberg noted that if Mr. Bailey gave his permission, Benderson Development would plant additional evergreens on his property to aid in buffering his residence from the proposed drive-thru area.
The Chairman told the applicants that Mr. Bailey was one of many that have expressed concerns with this project. At the Public Hearing on April 21, 2004, held by the Town Board, residents voiced and submitted additional written concerns. Mr. Fineberg told the members that he did not attend this meeting, although he was aware of the additional concerns. He told the Board that he would contact the neighbors and meet with them to discuss buffering and other concerns that they may have regarding this project.
The Chairman noted that at the Public Hearing the residents of the area had expressed the fact that when they purchased their homes they had never envisioned a future request to rezone this residential property. The Chairman discussed the request for the rezoning and asked Mr. Fineberg if the project could be redesigned to have the 400’ (350’ area, plus 50’ buffer area) remain R2 so the request could be eliminated. Mr. Fineberg told the members that the proposed plan is based on a “town center” concept and he explained why it would not be possible to redesign the project.
Mr. Fabinsky told the applicants that he believes that this is a great project.
However, the existing neighbors are important and he stated his concerns
for buffering them from the proposed project. Mr. Fineberg, again, told the members that he would arrange to meet with the neighbors at the site and discuss their concerns. He further stated that the project is still in the design phase and that Benderson Development would be open to ideas to make the back of the building appear residential and pleasant looking to the residents located there.
The Chairman reviewed the proposed site plan with the applicants with regards to the number of proposed parking spaces. The Chairman stated that without knowing what tenants would occupy the space, the number of parking spaces could not be determined. Mr. Fineberg noted that the number of parking spaces could be reduced to allow a larger buffer area in
the rear and that in the future, if the Town Board or Planning Board deemed that the number of parking spaces were not adequate, Benderson Development could build this back into the plan, at their expense. Further review of the plan established that this would not be an enclosed mall.
The March 10, 2004 minutes state:
2. The Public Safety Committee’s comments received March 5, 2004 were given to Mr. Franco. He stated that he would respond to these comments after having the opportunity to review them. His initial inclination is that moving the building as suggested would ruin the project and harm the neighbors.
The Chairman noted that the Benderson response was “Refer to FRA letter dated August 3, 2004”.
Mr. Murray stated that the Public Safety Committee’s response received March 5, 2004 clearly states their determination regarding future traffic problems for this project. The response from FRA Engineering states that there will be no problems. Mr. Murray feels that their response was nominal. Mr. Fineberg stated that changes have been since the time of that correspondence.
The flow of traffic was discussed further, with Mr. McGuire noting that one entrance in and one exit out would be a major problem.
The March 10, 2004 minutes state:
3. The D.E.C. correspondence regarding the location of the wetlands will be addressed. It was learned that a previous wetland study had been performed that included both the proposed project property and the adjacent Bray property. Mr. Franco believes that the existing wetlands are not located on the Benderson property. He told the members that this study will be revisited and the wetlands delineated.
The Chairman noted that the Benderson response was “Refer to Department of Army letter dated July 2, 2004”.
Mr. Fineberg explained that a jurisdictional wetland was created when piping, without Benderson authorization, was installed by the D.O.T. onto land owned by Benderson Development. He told the members that the D.O.T. created this problem and that additional information will follow.
The March 10, 2004 minutes state:
4. Mr. Bernard would like the submitted traffic report to be pursued further with regards to the suggestion that a right hand turning lane would be desired into the property, but that it could not be
accommodated. Mr. Bernard would like to know the basis of why a future signal may be needed. He asked Mr. Franco who would be responsible for the signal and Mr. Franco stated that Benderson Development would not have a problem with accepting responsibility for the cost or maintenance of a signal.
The Chairman noted that the Benderson response was “Refer to FRA letter dated August 3, 2004”.
The minutes state:
5. Mr. Bernard would like the applicants to submit a plan showing the setbacks and to indicate how the residences to the rear will be buffered from the proposed project.
The Chairman noted that the Benderson response was “Refer to site plan dated August 2, 2004”.
The March 10, 2004 minutes state:
6. Mr. Franco was asked to clarify the specific uses that are being desired that have made the applicants request the rezoning from B3 to B2. Mr. Franco stated that the request was to allow for more flexibility in leasing. Mr. Franco will provide a list that indicates the type of tenants that would not be considered for this plaza to both the Planning Board and the Town Board. It was learned that there is no anchor for this plaza and that the building is being built as a speculative building. One-third of the buildings (the rear, two-story building) is to be used for office space.
The Chairman noted that the Benderson response was “McDonald’s and Burger King would not be considered for tenants of this project”. The Chairman told the applicants that she was not satisfied with this response. Excluding these two particular tenants does not answer the Board’s question. Mr. Fineberg told the members that the concept plan for the type of plaza that is being created here does not fit with a fast food chain. Mr. Fineberg stated that a bank or “Starbucks” type tenant is planned for the proposed drive-thru. Mr. Fineberg further noted that “Starbucks” is not planned for this plaza and that “Starbucks” would not consider leasing space here without a drive-thru. Mr. Fabinsky asked if the applicants would consider agreeing to a stipulation to come back before the Board for review of their possible tenant for the proposed drive-thru. Mr. Fineberg stated that they would not be able to consider this stipulation and he explained to the members that it would slow the process of leasing.
The March 10, 2004 minutes state:
7. Mr. Franco agreed to provide an archeological study.
The Chairman noted that the Benderson response was “Refer to NYS Office of Parks, recreation and Historic Preservation letter dated 7/15/04”. The
Chairman stated that there are no significant archeological problems in this area.
Mr. Bodden stated that he feels the project will fit in the community. However, he is concerned with the existing residents. He told the applicants that he would like them to contact the residents and return to the Board with a report based on the residents’ input.
The Chairman stated that she feels the project is good for the Town and Village of Orchard Park. However, she is concerned about the residents being imposed upon with lighting, noise and an unknown restaurant. She agrees with Mr. Bodden and would like the applicants to come to a “meeting of the minds” with the residents, and return to the Board with their input. The Chairman offered to accompany the applicants during their visit with the residents.
A MOTION was made by Mr. Fabinsky, and seconded by Mr. Bodden, to TABLE this case.
THE VOTE ON THE MOTION BEING:
BIRYLA AYE
BODDEN AYE
FABINSKY AYE
MC GUIRE AYE
MC NAMARA AYE
MURRAY AYE
THE MOTION WAS UNANIMOUSLY APPROVED.
OTHER BUSINESS:
Walter Schmidt, vacant land, east side of California Road to discuss townhouse project development.
APPEARANCE: Doug Bennett, TVGA Consultants
Mr. Bennett reviewed several changes to the storm water management plan previously reviewed by the members. Originally, a dry pond had been proposed. However, it was found that the pond bottom would remain wet longer than planned. He told the Board that wet meadow landscaping would be used.
Junior Engineer, Thomas Ostrander stated that he agrees with the approach. The Chairman told Mr. Bennett that if approval is granted by
the Engineering Department, the Board will be satisfied with the drainage revisions.
The Chairman confirmed that the applicants would need to return to the Conservation Board for review of the revised landscape plan.
Mr. Bennett was asked to provide the Board with drawings that show elevations and floor plans.
Mr. Murray established that the plans propose the construction of basements.
There being no further business, the Chairman adjourned the meeting at 9:00 p.m.
DATED: 8/17/04 Respectfully, Submitted,
REVIEWED: 8/18/04 Rosemary M. Seivert
Planning Board Secretary
Lorraine Biryla
Planning Board Chairman