Minutes of the July 12, 2006 meeting of the PLANNING BOARD OF THE TOWN OF ORCHARD PARK, S4295 South Buffalo Street, Erie County
MEMBERS PRESENT: William McNamara, Chairman
John Bernard Lorraine Biryla
Paul Bodden
Harold Fabinsky
Michael McGuire
Philip Murray Eugene Majchrzak, Alternate
OTHERS PRESENT: Remy C. Orffeo, Planning Coordinator
Andrew Geist, Building Inspector
Thomas Ostrander, Junior Engineer
Michael Wolf, Deputy Town Attorney
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 May 10, 2006 Planning Board meeting was unanimously waived as each Board Member had previously received copies.
Mrs. Biryla made a MOTION, seconded by Mr. Bodden to accept the minutes of the May 10, 2006 meeting.
THE VOTE ON THE MOTION BEING:
MC NAMARA AYE
BERNARD AYE
BIRYLA AYE
BODDEN AYE
FABINSKY AYE
MCGUIRE AYE
MURRAY AYE
THE MOTION IS UNANIMOUSLY PASSED.
The Chairman made a MOTION, seconded by Mrs. Biryla to APPROVE a REVISION to the November 9, 2005 minutes that were incorrect as originally written. They have been meticulously transcribed by the Planning Board Secretary to reflect the actual intent of the motion made by the Board regarding Planning Board File #19-05.
THE VOTE ON THE MOTION BEING:
MC NAMARA AYE
BERNARD AYE
BIRYLA AYE
BODDEN AYE
FABINSKY AYE
MCGUIRE AYE
MURRAY AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS PASSED.
1. 7:30 P.M. Public Hearing, P.B. File 24-03, proposed Baker Highlands Subdivision, Vacant land, east side of Baker Road, north of Milestrip Road, Zoned R-2. Requesting Final Approval of a 21-lot subdivision, Preliminary Approval granted by the Planning Board on 5/10/06.
The Chairman called the Public Hearing to order. The Affidavit of Publication and Posting, published July 1, 2006, was presented and filed with the Board by the Planning Board Secretary.
The Chairman asked for those in favor of the project to speak.
IN FAVOR:
Mr. Victor Martucci
Marrano Marc Equity
2730 Transit Road
West Seneca, NY 14224
Mr. Martucci spoke in favor of the project. Mr. Martucci told the Board that the project has obtained approvals from the Erie County Water, Sewer and Health Departments. A meeting took with the Town Engineer regarding the land that is to be dedicated to the Town. Mr. Martucci stated that the developer agreed to construct an asphalt pathway to provide access over the wetland area from one side of the parkland to the other. He also noted that the Conservation Board granted approval for the submitted landscaping plan.
Mr. Pete Johnston
William Schutt & Associates
37 Central Avenue
Lancaster, NY 14086
Mr. Johnston noted that he is in favor of the project. He discussed the fact that final Engineering approval should be
The Chairman asked if there is anyone wishing to speak against the project.
IN OPPOSITION:
Mrs. Carol Syposs
15 Chisholm Trail
Orchard Park, NY 14127
Mrs. Syposs stated that she sent a letter to the Planning Board in March, 2006 expressing the concerns she and her husband have regarding the proposed subdivision. She expressed these concerns, again, noting that the project will take approximately three years to complete. Mrs. Syposs does not feel that a Board member would want to deal with the loss of privacy (due to the difference in the elevation of her property and the proposed project), dirt/dust and lights. She stated that she reviewed the Planning Board file and she expressed her disbelief that a study was performed over a period of four-seasons indicating that there will be no effect on endangered wildlife. Mrs. Syposs noted that she feels that a box checked “yes” in the Environmental Assessment Report is not sufficient proof that the required study occurred. She also feels that her property will be devaluated because of the difference in elevation. She further feels that the properties on Baker Road, where the entrance road will be constructed, will also be devalued. Mrs. Syposs noted that she believes the subdivision will add to the overcrowding of the school system.
Mr. Ernest Kapinsky
Milestrip Road
Orchard Park, NY 14127
Mr. Kapinsky noted that if the school system becomes over crowded the potential exists to use the existing Baker Road facility. He feels this is already full and that additional traffic will create further problems.
Mrs. Biryla made a MOTION, seconded by Mr. Bodden to CLOSE the public hearing.
THE VOTE ON THE MOTION BEING:
MC NAMARA AYE
BERNARD AYE
BIRYLA AYE
BODDEN AYE
FABINSKY AYE
MCGUIRE AYE
MURRAY AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS PASSED.
APPEARANCE: Victor Martucci, Marrano Marc Equity
Ralph Lorigo, Attorney
Pete Johnston, William Schutt & Associates
Mr. Johnston noted that the applicant is seeking Planning Board final plat plan approval. He explained that they would like to start construction this year prior to the end of the building season. Mr. Johnston told the Board that the plan was resubmitted to the Engineering Department with off-sight improvements. The Board discussed the project and established with Junior Engineer Thomas Ostrander that final Engineering Approval is forth coming; however, Town Engineer Wayne Bieler is on vacation and was not available to review the revised submission. Mr. Lorgio noted that if Mr. Bieler were not on vacation, the project would be at the final stage before the Board.
The Chairman offered to schedule a special meeting on August 2, 2006 at 6:15 p.m., prior to the Planning Board work session.
Mrs. Biryla asked Junior Engineer Thomas Ostrander to comment on Mrs. Syopis’ concern regarding the difference in elevation between her property and the proposed subdivision. Mr. Ostrander verified that a two to three foot difference in elevation will exist at the rear of Mrs. Syopis’ property to the rear of closest proposed homes. Chairman McNamara concluded he does not feel this is a reason to cease the project.
Mr. Bernard reviewed the clearing limits on the site plan with Mr. Johnston. He also established that the major infrastructure, the commitment to Mrs. Roehling and the entranceway could be in place by the fall season. The construction of the individual homes will take place during the next two to three years. Mr. Martucci stated that these will be high end homes starting at approximately $260,000.
Mr. McGuire stated the developer owned and paid taxes on this property for approximately 25 years; development of the property was an eventual reality. He believes the 45-acre land donation that will remain forever green to the Town is a generous offer.
Mr. Majchrzak noted that, “It is a homeowner’s responsibility to do due diligence as to what is around them; whether it happens
this year, or twenty years down the road”. “When you purchase a
home, unless you have protected wetlands or green space that have been donated, there is a possibility that land, zoned residential, will be developed at one time or another”. He told Mrs. Syposs that her developer had the opportunity to develop the land he owned and that he feels this developer should have the same right. He further noted that the homeowner building on the higher elevation has the responsibility to develop the property correctly with regards to drainage. He believes the Engineering Department oversees this aspect.
Mr. Fabinsky stated that he acknowledges the green space donation, and he also believes the donation aids in limiting the potential density of the area.
Mr. Fabinsky made a MOTION, seconded by Mr. Bernard to TABLE the review of this case with the recommendation that the Chairman schedule a special meeting at his discretion.
THE VOTE ON THE MOTION BEING:
MC NAMARA AYE
BERNARD AYE
BIRYLA AYE
BODDEN AYE
FABINSKY AYE
MCGUIRE AYE
MURRAY AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS PASSED.
2. P.B. File #38-06, Carmen Clark, 3043 Abbott Road, Zoned B-2. Requesting a Change In Use to convert commercial property into an Italian Deli. Town Board referred to Planning Board on 6/7/06.
APPEARANCE: Mr. Carmen Clark, applicant and property owner
Mr. Clark told the Board that he and a partner would like to establish a “Marco’s Italian Deli” at this site. He described the proposed deli as a high end “Subway” shop and told the Board that there will be two employees. He further stated that there will be no dual usage and no front yard parking. The proposed deli would be on the east side of the road and is correctly zoned for this commercial use. There will be no changes to the outside of the building. Mr. Clark further stated that there will be seating for approximately 18 patrons, similar to the setup of a “Subway” shop.
The Board members discussed Mr. Clark’s request and noted that they require a site plan with more information regarding the project. Junior Engineer Thomas Ostrander requests that Mr. Clark submit a Site Plan to the Planning Board and Engineering Departments detailing drainage, sanitary upgrades, lighting and parking. It was determined that Mr. Clark’s request should be revised from operating an “Italian Deli” to an “upscale sub shop”; he will not be selling deli items.
The Planning Coordinator requests that Mr. Clark submit a stamped landscaping plan before July 26th in order to be placed on the Conservation Board’s August agenda.
Mr. McGuire made a MOTION, seconded by Mr. Fabinsky to TABLE the review of this project pending a re-submittal from the applicant addressing the issues discussed.
THE VOTE ON THE MOTION BEING:
MC NAMARA AYE
BERNARD AYE
BIRYLA AYE
BODDEN AYE
FABINSKY AYE
MCGUIRE AYE
MURRAY AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS PASSED.
3. P.B. File #2-06, Tim Horton’s Restaurant, 3239 Abbott Road, Zoned B-2 & R-3. Requesting a Building Permit to construct a new single Tim Horton’s restaurant building with a drive-through that has a separate access drive. Town Board referred to Planning Board on 2/15/06. Tabled by the Planning Board on 5/10/06.
APPEARANCE: Mr. Ralph Lorigo, Attorney
Mr. Tim Gawenus, FRA Engineering
Mr. Lou Terrangoli, Tim Horton’s
Mr. Lorgio summarized what has been accomplished since the Board’s last review of this project; Conservation Board approval was granted for the landscaping plan; an informal meeting took place with Mr. Bernard wherein the concerns of the Planning Board were discussed; a full traffic impact study was submitted to the Planning Office; and, the site was redesigned to accommodate the stacking of 16 vehicles. This is an increase of 7 vehicles from the previous stacking plan and the traffic report indicates that this should be sufficient for the site, as 21 vehicles
can be accommodated before spilling over into the roadway.
Mr. Murray noted that in reviewing the file he feels there is mixed language regarding a second usage for the site. He asks that Mr. Lorigo clarify if Tim Horton’s will be using the site exclusively, or if there will be other aspects open to the use of the property. Mr. Lorigo noted that the only plan, today, is for the construction of a Tim Horton’s. Mr. Lorigo further noted that it is difficult to say “never”, and if there are additional plans for the property the applicant will be back before the Board for their approval. Mr. Murray briefly discussed the Erie County Engineering Report with regards to curb cuts and grading with the applicant. He noted that the curb cuts are, at this time, constructed for single usage. Mr. Murray asked if the applicant was aware of a 7/10/06 correspondence regarding the project from a nearby resident. Mr. Lorigo stated that he had not been aware of the correspondence. The Planning Coordinator noted that the correspondence was just received and that he will forward a copy to Mr. Lorigo.
Mr. McGuire noted that he had spoken to Mr. Wayne Taneff, who is the used car dealer diagonally across from this site on the corner. He reported that Mr. Taneff spoke highly of the project. He feels eliminating the existing structures at this site will remove an eye sore and help with the existing rodent problem. Mr. McGuire thanked the applicant for removing the stub driveway that existed in the initial plan.
Mr. Bernard stated that during his meeting with the applicant he advised the applicant of revisions that needed to be made to the lighting plan. Mr. Gawenus told the Board that the revisions Mr. Bernard requested have been made; however, the revised lighting plan has not been submitted. Mr. Bernard discussed the traffic study that was submitted and asked Mr. Gawenus to comment on the overall traffic impact the restaurant will have on the County Highway. Mr. Gawenus noted that Section 3, “Level of Service Analysis” discusses this aspect in the traffic study. He gave a brief overview and told the Board that the report (based on trip generation) indicates the level of service is “C” or better, which is considered good operating service. The most restricted case would be making a left turn onto Lake Avenue and proceeding east. This is rated at a service level of “A” or “B”.
Mr. Bernard reaffirmed that the applicant will resubmit a revised lighting plan. He also noted that the dumpster enclosure height must be reduced and he asks that the applicant make this revision to the plan.
Mr. McGuire established that the lighting plan number is 05-3818, dated 7/11/06. The average foot candle is 3.07.
Mrs. Biryla noted that she approves of the architectural aspects of the proposed building. The brick will be a reddish color and the roof will be a brownish color. The front of the building will face Abbott Road.
Mr. Fabinsky established that the increase in the vehicle stacking number was accomplished by shifting the building closer to Abbott Road and pulling back the drive-through towards the residential area.
The Chairman noted that the project is awaiting Engineering approval.
Mr. Bernard made a MOTION, seconded by Mr. Fabinsky to TABLE this case.
THE VOTE ON THE MOTION BEING:
MC NAMARA AYE
BERNARD AYE
BIRYLA AYE
BODDEN AYE
FABINSKY AYE
MCGUIRE AYE
MURRAY AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS PASSED.
4. P.B. File #07-06, Greater Buffalo Savings Bank, 6520 Webster Road, Zoned B-3. Requesting a Building Permit and Site Plan Approval for a 2,942 sq. ft. retail bank. Town Board referred to Planning Board on 2/15/06. Tabled by the Planning Board on 6/14/06.
APPEARANCE: Mr. Jim Mulka
Mr. Christopher Guerra
Ms. Yadira DeSantis
This project was discussed at a prior Planning Board meeting and the members expressed reservations regarding the proposed architecture. Mrs. Biryla and Councilwoman Ackerman met with bank representatives to discuss the style of architecture that would best fit in this area. The plan presented was revised based on their input. Mr. Mulka explained the revised plan to the members, noting that the project has been granted both Engineering Department and Conservation Board approvals.
Mrs. Biryla stated that she feels the proposed hip roof (gable roof) over the drive through will be too predominant in this residential area. However, she is satisfied with the soft green color that is proposed.
Mr. Fabinsky noted he feels the revised architecture fits well in the area.
Mr. Bodden noted that the revised plan is an improvement; however, he feels it is extremely important that the drive-through façade fits into the neighborhood. He feels that the façade appears detached from the building. He also questions the buffalo motif being used and asked Mr. Mulka if it is necessary. Mr. Mulka told the Board that the buffalo is their logo taken from their headquarters, the “Braun Cadillac Building”, in Buffalo. Mr. Mulka told the members that he will work on the fascia.
Chairman McNamara stated that the revised plan is an improvement. However, he feels the entrance drive through appears flat and he would like to have shadow lines added.
Mr. Bernard discussed the lighting plan with Mr. Mulka, noting that he would like the plan updated to show the average photometrics at 3.5. In addition, the flood light on the property should have a hood on the barn door and house shields should be used on the perimeter lights. Mr. McGuire noted that the plan meets both Orchard Park and Federal Banking requirements.
The Planning Coordinator noted that Councilwoman Ackerman requests that soffit molding on the brick be wider, at least 6 inches. She is also concerned about the Maple tree at the front of the property and would like a construction fence placed at the drip line around the tree.
Mrs. Biryla made a MOTION, seconded by Mr. Fabinsky to recommends that the Town Board AUTHORIZE a Building Permit for a 2,942+/- sq. ft. building for a retail bank and APPROVE the site plan received 5/30/06 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. Light fixtures shall have flat lens.
3. No outside storage or display is permitted.
4. Town Engineering Approval was granted on 6/14/06.
5. A landscape completion bond in accordance with the Conservation Board minutes shall be provided for the approved landscape plan, which includes 41.5% green space, prior to the receipt of a Building Permit.
6. Precautions shall be taken during the construction to make sure that, no damage occurs to the beautiful maple tree at the front of the lot and including a construction fence along the drip line.
7. The metal coping shall be increased from 4” to 6” at the top of the building.
8. The elevations and architecture shall be as described and presented to the Board in the 7/12/06 packet received (at this meeting) signed by Mrs. Biryla and Mr. Mulka.
THE VOTE ON THE MOTION BEING:
MC NAMARA AYE
BERNARD AYE
BIRYLA AYE
BODDEN AYE
FABINSKY AYE
MCGUIRE AYE
MURRAY AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS PASSED.
Mrs. Biryla thanked Mr. Mulka for his cooperation with the Board’s efforts in trying to achieve something different in Orchard Park.
5. P.B. File #33-99, West Seneca Rotary Foundation Golf Course, Vacant land bordering Southwestern Boulevard, Transit Road, Michael Road and Angle Road, Zoned R-2 and R-3 Special Exception Use. Asks that Board review plan relative to irrigation pump house building.
APPEARANCE: Mr. James Bammel, Architect
Mr. Dave Pawlik, Savanno Construction
Mr. John Hoefler, TVGA
Mr. Bammel told the members that the applicant is requesting to construct a pump house to irrigate this 256-acre site. It will be located in the center of the property and water will be pumped from an irrigation pond on the site. He further told the Board
that pre-mixed fertilizer will be stored in this building and dispensed from a pre-engineered contained system. The building will be located approximately 1,000-feet from the nearest resident. The anticipated completion of the golf course is 7/4/07. Mr. Pawlik told the Board that a club house is planned for the site, as indicated in the original concept plan; however, they will return to the Planning Board for its review and approval. He further noted that this will be as public golf course. It was established that there will be two-60 watt lights on the building and that they will have fixture cuts. Engineering approval was granted on 7/10/06.
Mr. Fabinsky made a MOTION, second by Mr. Bodden to recommend the Town Board APPROVE an irrigation pump house building based on the following conditions and stipulations:
1. This is an unlisted SEQRA action, which was determined on 7/19/00 by the Orchard Park Town Board, based on the submitted Full EAF Parts 1 and 2, and a Negative Declaration was made;
2. This excludes any permits for any other building(s) (barns, club house, etc…);
3. The excavation permit be re-approved according to existing Town code requirements;
4. Over all landscape coordination of the golf course will be reviewed the Conservation Board; and
5. Town Engineering Approval was granted on 7/10/06.
THE VOTE ON THE MOTION BEING:
MC NAMARA AYE
BERNARD AYE
BIRYLA AYE
BODDEN AYE
FABINSKY AYE
MCGUIRE AYE
MURRAY AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS PASSED.
6. P.B. 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. Board to consider additional action pursuant to SEQR.
APPEARANCE: Mr. Elliot Lasky, Developer
Mr. Rob Pidanick, Greenman-Pederson
Mr. Richard Sullivan, Attorney
Mr. Rick Crouch, Barron & Associates
Mr. Pidanick noted that Mr. Sullivan had submitted a letter requesting preliminary plat plan approval. He further noted that revised plans were submitted to the Town Engineering Department in March of 2006 and that comments have not been received, although, he has had several conversations with the Town Engineer. Mr. Pidanick believes all questions, in regards to the soil and engineering plans that were received in September 2005 have been responded to in the revised plans. On behalf of Pleasant Acres West, he is requesting preliminary plat approval be granted at this time.
Mrs. Biryla discussed arsenic being present at the site and the fact that the level of impact is going to be revised by the State in the future. Junior Engineer Thomas Ostrander stated that there is no real certainty with the actions of the State/County; it may or may not happen. Mr. Lasky noted that his soil expert is present to explain to the Board all issues, documented in a one- page submission for the Board’s review.
Mr. Sullivan noted that a correspondence was received in June from the Town Planning Coordinator listing two options for the applicant. These were, to leave this particular area in place until the State changes the regulation, and to not use this source. Mr. Sullivan feels that this is reasonable and noted that the applicant accepts this. He noted that this is a comfortable solution that everyone is agreeable to. The 13.9 ppm level of arsenic found is one of four composite samples and this may be well within the State standards that are about to be adopted. However, the applicant agrees to leave the soil in this area in place until the issue is resolved. Mr. Lasky discussed the build-out of the subdivision, stating that Pleasant Acres West will be constructed in three or more phases. There will be 99 lots in this application. There are two piles of soil on the site, one of which there is no issue with; the pile of soil in question is located within the proximity of a cul-de-sac area that will be constructed in the final phase. He noted that he can leave this soil undisturbed for several years, or according to the D.E.C. regulations, he can use one to two feet of material to cap the area and be in compliance with that agency’s requirements. Mr. Lasky told the Board that he will be elevating the site by four feet.
Mr. Fabinsky asked for clarification on the site’s level of testing with regards to the D.E.C. levels and the term “clean-up” and Mr. Crouch explained the following:
•The soils in the stockpiled area were generated during the excavation of a detention pond at Barrington Heights Subdivision. This soil is natural/native silty clay and silty sand soils intermixed with shale fragments.
•Thirteen test pits were excavated in the west stockpile soil area, nine of these were shallow and approximately 4 feet in depth; four were 13 feet in depth to the underlying natural soils.
•The soils encountered in the test were silty clays, clayey silts and minor amounts of silty sand. No industrial-type fill (i.e., ash cinders, slag, wood, glass or concrete) was observed.
•During the test pit excavation, no staining, sheen or anomalous odors were observed on the excavated soils. Field screening for total volatile organic with a photoionization detector did not detect any readings. The analysis of four samples for volatile organic compounds, semi-volatile organic compounds and metals detected only arsenic at 13.9 ppm in one of the four samples exceeded the NYSDEC published recommended soil cleanup guidance level of 12 ppm.
•The detection of arsenic at 13.9 ppm was reported in Barron & Associates, P.C.’s report that was dated April 4, 2006. The detection of arsenic slightly exceeding the recommended soil cleanup guidance level was not deemed an environmental, nor human health concern.
• Arsenic is metal that can be introduced into the environment through the application of certain pesticides and herbicides. The metal arsenic is not soluble. Thus, when introduced to soils, arsenic will attach to the soil. It is not mobile in the soil.
Mr. Fabinsky noted that arsenic will not move with water. It was noted that the arsenic is only in the one pile of soil.
• In a conversation with Jaspal Walia, Engineer with Region 9, NYSDEC, Division of Environmental Remediation, Mr. Walia noted that presently the
NYSDEC is using a guidance value of 13 ppm and that the proposed Part 375 guidance value is 16 ppm. Mr. Walia did not foresee a concern with the detection of arsenic at 13.9 ppm. However, he did suggest if there was public concern, it be covered with buildings, pavement or a minimum of one foot of soil.
• Mr. Crouch noted that Mr. Walia recommended that he contact Cameron O’Connor of the NYSDOH. Mr. O’Connor stated that the upper background limit for arsenic in Western New York is 20 ppm; he did not see a concern with the detection of arsenic at 13.9 ppm.
Mr. Fabinsky requests that Mr. Crouch submit documentation that Mr. O’Connor of the Department of Heath is using that level as not being a potential risk.
Junior Engineer Thomas Ostrander stated that a paper trail from the Health Department and the D.E.C. must be established. He noted that standards and opinions change, as well as the interpretation of the standards.
Mrs. Biryla requests that the applicant return to the Planning Board when he is ready to move the pile of soil and inform the Board if the standard was changed. The applicant is also to advise what his plans are before the soil is moved.
Attorney Sullivan noted that he will send a correspondence confirming this agreement.
Mr. Fabinsky stated that he is not sure if the Board needs to look at the site plan or the chemical issue. The Chairman stated that the Board will separate the issue of the soil from the subdivision. Once an agreement is reached regarding the soil, the Board will review engineering of the subdivision.
Mr. Murray discussed the fact that he feels the conclusions in the submitted report appear to be anecdotal. He told Mr. Lasky that the report concludes the detection of arsenic, slightly exceeding the recommended level, is not deemed a health concern. Mr. Murray stated that the obvious is, “deemed by whom”… He further stated that the report appears to have no context; there are no footnotes, bibliographies or references highlighted, etc. that support this non-scientific conclusion.
Mr. Lasky apologized for the way the report is written and stated that the simple solution is that he will not touch the soil without returning to the Planning Board.