ZBA Mtg. #8 Reg. Mtg. #8 August 19, 2003 Page 1
ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the August 19, 2003 meeting held at the Basement Public Meeting Room, S4295 South Buffalo Street.
MEMBERS PRESENT: Remy Orffeo, Chairman
Donald Holmwood
Henry Jarocha
Robert Lennartz
Jo Ann Litwin, Alternate
Deborah Chimes
OTHERS PRESENT: David Holland, Assistant Building Inspector
J. Michael Wolf, Deputy Town Attorney
Rosemary Seivert, Zoning Board Secretary
The members recited the Pledge of Allegiance and the Chairman called the meeting to order at 7:35 p.m., stating that if anyone appearing before the Board was related through family, financial or business relationship with any member of the Board, it is incumbent upon him to make it known under State Law and the Town Code of Ethics.
APPROVAL OF THE MINUTES OF THE JULY 15, 2003 REGULAR MEETING:
A motion was made by Mr. Lennartz, seconded by Chairman Orffeo to accept the minutes of the July 15, 2003, Zoning Board meeting and the reading of these minutes is hereby dispensed with as each member of the Board has previously received copies thereof.
THE VOTE ON THE RESOLUTION BEING:
ORFFEO AYE
CHIMES AYE
HOLMWOOD AYE
JAROCHA AYE
LENNARTZ AYE
THE VOTE ON THE RESOLUTION BEING UNANIMOUS, THE RESOLUTION WAS DULY ADOPTED.
The Chairman stated that all persons making an appeal before this Board would be
heard in accordance with the Town Laws of the State of New York, Article16, Sections 267, 279 and 280a, Subdivision 3, and the Town of Orchard Park Zoning Ordinance. Any person aggrieved by any decision of the Board of Appeals may present to a court of record a petition, duly verified, setting forth that such decision is illegal, specifying the grounds of the illegality. Such petition must be presented to the court within 30 days after filing of the decision in the office of the Town Clerk. The Chairman stated that site inspections of all cases presented tonight were made by:
ZBA Mtg. #8 Reg. Mtg. #8 August 19, 2003 Page 2
ORFFEO AYE
CHIMES AYE
HOLMWOOD AYE
JAROCHA AYE
LENNARTZ AYE
LITWIN AYE
NEW BUSINESS
1. ZBA File #29-03, David Wyman, American Tower Corp., Zoned B-2 (Part of Farm Lot 459, Township 10, Range 7; SBL#153.13-3-2). Requests site plan review and approval of a tower permit as required by Section 144 Article VII.
APPEARANCE: Mr. Doug Dimitroff, Attorney
Mr. Drew Cauldwell, American Tower
Ralph Lorigo, Benderson Development
Mr. Richard Franco, Benderson Development
Mr. Dimitroff told the members that American Tower Corporation currently has a tower located on property owned by Benderson Development. The request to relocate this tower is being made to allow Benderson to have the property developed as a Lowe’s Home Improvement Center. In order to proceed with development, the tower must be removed, as the tower is located within the proposed footprint of the Lowe’s project. American Tower and A T & T Wireless have agreed to the proposed relocation and plan to demolish the current tower.
Mr. Dimitroff presented the proposed plans for a new tower to be located 400 feet south of the existing tower, on another parcel of property owned by Benderson Development. Mr. Dimitroff apologized to the Board for the lateness of the submission of the information provided. Mr. Dimitroff reviewed the letter of intent and Exhibits “A through J” with the members. Mr. Dimitroff concluded that the proposed 150-foot monopole would be effectively the same as the existing one. However, there will be a reduced pad area with the proposed new tower. The current tower pad area is 100 feet by 100 feet. The new pad area would be 50 feet by 50 feet. In addition, the proposed monopole will exist with an 8-foot lighting rod. The current monopole has a 5-foot lighting rod. In order to allow A T & T to continue to operate, they request that the old tower remain in operation while the new tower is being constructed. The old tower will be removed once the new tower is operational. Mr. Dimitroff estimates the time frame to be a period of 30 to 60 days.
Mr. Jarocha and the Chairman established with the petitioner that the removal of the current tower could take place within 90 days of the new tower becoming operational. Access to the tower, as shown on page C02 of the submitted material, shows a concept that has been agreed to between Benderson Development and American Tower to have an easement on an existing road. A current gravel road will be kept that is located behind Tops and no other road will be constructed.
ZBA Mtg. #8 Reg. Mtg. #8 August 19, 2003 Page 3
Mr. Lennartz asked if the tower had a break point. Mr. Dimitroff told the members that this design did not have a break point. He further told the members that there are no buildings within the 150’ fall down zone. It was also established that there will be no generator and that the tower will have a battery backup system in the event of a power failure.
The Chairman reviewed the landscape plan with the petitioner, who verified that the site would be built as indicated on the plans. Chairman Orffeo asked what would become of the existing road that leads to the current tower. Mr. Franco, of Benderson Development, discussed this road with the members noting that he believes that the construction of the Lowe’s building would eliminate a portion of the road. Mr. Franco agreed to have the remaining section of this road removed within thirty days of the Lowe’s store becoming operational. Mr. Franco will forward a letter to confirm this agreement.
The Chairman discussed the SEQR review, and noted that no response has been received from the New York State Department of Planning & Environment and the New York State Parks & Preservation agencies. Mr. Dimitroff stated that he had been told no problems exist and he believes that the response from these two agencies will be sent shortly. The Chairman noted that the SEQR review would be dependent upon receiving these responses.
The members discussed having the tower designed with a break point. Mr. Lorigo, attorney for Benderson Development, stated that Benderson Development would agree to a stipulation that nothing may be constructed within a 150-foot circle of the tower. Mr. Lorigo will send a letter confirming this agreement.
The Chairman then asked if there was anyone in the audience who would wish to speak in favor of the granting of the permit.
(Twice)
NO RESPONSE
The Chairman then asked if there was anyone in the audience who would wish to speak against the granting of the permit.
(Twice)
NO RESPONSE
The Chairman then asked if the Secretary had any additional communications either for or against granting the permit. The Secretary responded that a response from the Erie County Environmental Planning Office had been received.
The Chairman noted that the Erie County Environmental Planning office had responded and made no recommendation for this request.
ZBA Mtg. #8 Reg. Mtg. #8 August 19, 2003 Page 4
The Chairman made a motion, seconded by Mr. Holmwood, that this is an Unlisted action and that a Negative Declaration under SEQR be made based on the submitted long EAF. The responses from the New York State Department of Planning & Environment and the New York State Park Recreation and Historical Preservation agencies must be forward to the Zoning Board of Appeals, after that approval has been received for this Negative Declaration to be valid.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
CHIMES AYE
JAROCHA AYE
HOLMWOOD AYE
LENNARTZ AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, A NEGATIVE DECLARATION IS MADE UNDER SEQR, PROVIDING ALL DOCUMENTS HAVE BEEN RECEIVED.
The Chairman outlined stipulations for approving the requested cell tower permit as follows:
1. A letter of agreement from Benderson Development stating that they will not construct or allow anything within a 150-foot circle must be forwarded to the Zoning Board of Appeals as part of this agreement.
2. The old tower is to be removed (demolished) within 90 days of the completion of the new tower.
3. Benderson Development is to forward an agreement stating that the access road to the first tower is to be returned to its natural state or landscaped within 30 days from when Lowe’s is operational.
A motion was made by Mr. Jarocha, seconded by Mr. Lennartz, to APPROVE a PERMIT for a cell tower with the stipulations as outlined above by the Chairman as follows:
1. A 150-foot zone around the tower shall not be used for any other use.
2. The present access road after the completion of the Lowe’s shall be re-landscaped or possibly be made a part of Lowe’s and this should be done within 30 days of completion of Lowe’s.
3. The old tower shall be removed within 90 days of completion of the new tower.
4. No other roads shall be built to access the new tower other than the existing stone road.
ZBA Mtg. #8 Reg. Mtg. #8 August 19, 2003 Page 5
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
CHIMES AYE
JAROCHA AYE
HOLMWOOD AYE
LENNARTZ AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE PERMIT IS HEREBY APPROVED.
2. ZBA File #24-03, Peter S. Militello, 8 Quaker Lake Terrace, Zoned R-1 (Sub Lot 17, Map Cover 1824; SBL#162.19-2-5). Requests an area variance to construct a shed 10’ from a side lot line. Minimum side setback in an R-1 Zone is 15’, Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.
APPEARANCE: Mr. Peter Militello, property owner
Mr. Militello presented plans for a proposed storage shed. He told the members that his neighbor does not object and a letter supporting his request from this neighbor had been submitted. Mr. Militello does not believe the request is substantial, noting that several sheds in the area are not in compliance as they were built before an ordinance was in effect.
The Chairman read a letter of support from Mr. Feldman dated 6/12/03.
Mrs. Chimes established with Mr. Militello that the proposed location for the shed is the best possible location and the least intrusive.
The Chairman then asked if there was anyone in the audience who would wish to speak in favor of the granting of the variance.
(Twice)
NO RESPONSE
The Chairman then asked if there was anyone in the audience who would wish to speak against the granting of the variance.
OPPONENT:
Mr. Donald Furman
7593 East Quaker Road
Orchard Park, New York 14127
Mr. Furman stated that although he is not necessarily against the granting of this variance he feels that the granting of variances erodes the integrity of the zoning
ZBA Mtg. #8 Reg. Mtg. #8 August 19, 2003 Page 6
Laws of the Town of Orchard Park. He is worried that Orchard Park will become an “Amherst” or “West Seneca”. Mr. Furman further believes that each time a variance is granted a precedent is established. The Chairman told Mr. Furman that one variance approval does not set precedence for another variance approval. He further explained to Mr. Furman that the members seriously review each variance in a fair and just process.
The Chairman then asked if the Secretary had any additional communications either for or against granting the variance.
The Secretary stated no communications have been received.
A motion was made by Mr. Lennartz, seconded by Mr. Holmwood, to GRANT the request for an area variance for the following reasons:
1. There will be no undesirable change in the character of the neighborhood.
2. The benefit cannot be achieved in any other way.
3. The request is not substantial.
4. There will be no effect on the environment or have an impact on the neighborhood.
5. The difficulty was not self-created.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
CHIMES AYE
JAROCHA AYE
HOLMWOOD AYE
LENNARTZ AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE VARIANCE IS HEREBY GRANTED.
3. ZBA File #25-03, Fred Tedesco, 12 Greenfield St., Zoned R-3 (Part of Sub Lot #’s 67 & 68, Map Cover 875; SBL#171.08-2-11). Requests an area variance to construct a shed 7’ from dwelling. Accessory structure shall be located no closer than 10’ to any primary structure, Section 144-24A(1)C.
APPEARANCE: Mr. Fred Tedesco, property owner
Mr. Tedesco stated that he desires to build a garden shed and described to the members how Weeping Willow trees and wet areas located on his property limit the location of the proposed shed. The members established that Mr. Tedesco has no other location to place his garden shed. It was further established that the character of the neighborhood would not be affected, as other sheds exist in
ZBA Mtg. #8 Reg. Mtg. #8 August 19, 2003 Page 7
this area. The shed will be constructed of pressure treated wood and have vinyl siding to match the existing garage.
The Chairman then asked if there was anyone in the audience who would wish to speak in favor of the granting of the variance.
(Twice)
NO RESPONSE
The Chairman then asked if there was anyone in the audience who would wish to speak against the granting of the variance.
(Twice)
NO RESPONSE
The Chairman then asked if the Secretary had any additional communications either for or against granting the variance.
The Secretary stated no communications have been received.
A motion was made by Mrs. Chimes, seconded by Mr. Jarocha, to GRANT the request for an area variance for the following reasons:
1. There will be no detriment to the health and safety of the community.
2. The request is not substantial.
3. There will be no undesirable change in the character of the neighborhood.
4. The benefit cannot be achieved in another way.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
CHIMES AYE
JAROCHA AYE
HOLMWOOD AYE
LENNARTZ AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE VARIANCE IS HEREBY GRANTED.
ZBA Mtg. #8 Reg. Mtg. #8 August 19, 2003 Page 8
4. ZBA File #26-03, Michael & Kim Chirico, 6138 Powers Road, Zoned R-2 (Part of Farm Lot 20, Township 9, Range 7; SBL#184.11-2-58.1). Requests an area variance to construct a 5’ high fence in a front yard. Maximum height of a fence in a front yard is 3’, Section 144-22A(1).
APPEARANCE: Mr. & Mrs. Michael Chirico, property owners
Mr. Chirico explained the location of his property and asked the members to grant a blanket variance for his property. Mrs. Chirico told the members that the request for a five-foot fence is being made to help keep her child away from a pond located on their property.
The Chairman and Attorney Michael Wolf explained to Mr. & Mrs. Chirico that there is no provision in the state zoning laws or town code for a blanket request. Further, a legal notice must be published with the specific variance request being made.
Mr. Lennartz noted that a previous variance had been granted for this property, with stipulations that the petitioner had agreed to. The petitioner has not complied with these stipulations. The stipulations agreed to include addressing a drainage problem on the property, installing gutters on the storage building and the planting of shrubbery. It was noted that the petitioner had planted some plantings, however these did not survive. The original variance request was made so that the petitioner could construct a building to store a boat. Mr. Lennartz stated that at this time, there is no boat stored in the building.
Mr. Jarocha reviewed the stipulations that Mr. Chirico had agreed to from the previous variance that had been granted. Mr. Jarocha told Mr. Chirico that other property owners accomplish what he desires by installing a 3-foot high fence, remaining in compliance with the ordinance. He discussed further with Mr. Chirico why he is requesting a five-foot fence.
Chairman Orffeo discussed the previous variance that had been granted for this property and reviewed with Mr. Chirico the stipulations that he had agreed to. Chairman Orffeo did not feel a good faith effort had been shown by Mr. Chirico, based on his lack of compliance with the stipulations. Chairman Orffeo stated that he would not be inclined to grant a second variance request, when stipulations for the first variance request have not been honored.
Ms. Litwin stated her personal feelings, noting that she would feel terrible if a young child were hurt.
The Chairman read two letters against the granting of the variance; Mrs. Martha Martin, 6141 Powers Road and Mr. & Mrs. Lockhart. 6140 Powers Road. These letters are part of the permanent file.
The Chairman then asked if there was anyone in the audience who would wish to speak in favor of the granting of the variance.
ZBA Mtg. #8 Reg. Mtg. #8 August 19, 2003 Page 9
(Twice)
NO RESPONSE
The Chairman then asked if there was anyone in the audience who would wish to speak against the granting of the variance.
OPPONENT:
Mrs. Shirley Higgins
6128 Powers Road
Orchard Park, New York 14127
Mrs. Higgins told the members that she feels it is the responsibility of a parent to watch their child. She further stated that the building constructed after the first variance had not been built 20 feet from the side lot line as agreed to. The building is actually 15 feet from the side lot line. She told the members that Mr. Chirico had agreed to not install a driveway to this building; however, Mr. Chirico put in a driveway. Mrs. Lockhart stated that drainage has not been addressed, gutters need to be installed and that shrubs need to be planted, as agreed to, by Mr. Chirico. She also stated that she feels that Mr. Chirico is actually requesting a five-foot fence to contain several dogs he has.
Mr. Robert Lockhart
6140 Powers Road
Orchard Park, New York 14127
Mr. Lockhart asked how the storage building was allowed to be built 15 feet from the side lot line when it was agreed during the variance request to be placed at 20 feet, perpendicular to Powers Road. The Chairman told Mr. Lockhart that he would have the Building Inspector’s office review and verify the building’s location. (The minutes of July 18, 2000, Page 13, paragraph 5, indicate that the building is to be located 20 feet from the side lot line.)
Mr. Lockhart also discussed concerns he has with Mr. Chirico’s dogs. Chairman Orffeo told Mr. Lockhart that he would need to contact the Town’s Animal Control Officer with these issues. Mr. Lockhart discussed the poor drainage that exists, stating that he feels the driveway that Mr. Chirico had agreed not to install during his first appeal contributes to this problem. He further told the members that shrubs would grow if they were planted correctly.
The Chairman then asked if the Secretary had any additional communications either for or against granting the permit. The Secretary responded that a response from the Erie County Environmental Planning Office had been received.
The Chairman noted that the Erie County Environmental Planning office had responded and made no recommendation for this request, other than to comment
ZBA Mtg. #8 Reg. Mtg. #8 August 19, 2003 Page 10
on the proposed action noting a safety concern may exist with the fence interfering with driveway/highway visibility.
The members concluded that a 3-foot fence would be adequate and that they could not support the variance request at this time, due to the numerous open issues from the variance that had been granted in the year 2000.
A motion was made by Mrs. Chimes, seconded by Mr. Jarocha, to DENY the request for an area variance for the following reasons:
1. There will be undesirable change in the character of the neighborhood.
2. The benefit being sought can be achieved without the need for a variance.
3. The request is substantial.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
CHIMES AYE
JAROCHA AYE
HOLMWOOD AYE
LENNARTZ AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE VARIANCE IS HEREBY DENIED.
5. ZBA File #27-03, Deborah Summers, 6645 Cole Road, Zoned A-1 (Part of Farm Lot 57, Township 9, Range 7; SBL#198.00-2-15.315). Requests an area variance to construct a 24’ x 24’ pole barn in a front yard. No accessory structure shall be located within a front yard, Section 144-24(A)(1)b.
APPEARANCE: Mr. & Mrs. Summers, property owners
Mrs. Summers presented plans, photos and a petition signed by her neighbors supporting plans for a proposed pole barn. Mrs. Summers explained to the members why the location for the pole barn was chosen.
Chairman Orffeo read the petition signed by the neighbors. This document was entered into the permanent file. Chairman Orffeo noted that there are three areas of practical difficulty being claimed in Mrs. Summer’s appeal. The Chairman indicated on the survey that placing the pole barn further to the rear of the property would involve having to extend electricity to the back. Also, there is no where to put a driveway in to gain access to the back because of the drainage and the leech bed. On the other side of the property, the practical difficulty is the leech bed, along with the drainage and the fact that there is not enough room. Lastly, the garage cannot be extended over the leech bed.
ZBA Mtg. #8 Reg. Mtg. #8 August 19, 2003 Page 11
The Chairman read a letter against the granting of the variance from Mr. & Mrs. Scott Janaski, 7431 Behm Road, Orchard Park, New York. This letter is part of the permanent file. The Janaski’s expressed concerns regarding a vacant lot they owned located next to the Summer’s property. They do not want the pole barn to affect or devalue this property.
The Chairman then asked if the Secretary had any additional communications either for or against granting the variance. The Secretary responded that a response from the Erie County Environmental Planning Office had been received.
The Chairman noted that the Erie County Environmental Planning office had responded and made no recommendation for this request, other than to comment on the proposed action noting a possible safety concern with driveway visibility, highway access becoming impaired by the pole barn and/or an aesthetics issue.
The Chairman then asked if there was anyone in the audience who would wish to speak in favor of the granting of the variance.
(Twice)
NO RESPONSE
The Chairman then asked if there was anyone in the audience who would wish to speak against the granting of the variance.
(Twice)
NO RESPONSE
Mr. Jarocha noted that there is no other location to place the pole barn. It was further determined that a wooded buffer of 75 ft. exists between this location and the adjacent property. A circular driveway will be maintained and the pole barn will match the house.
A motion was made by Mr. Jarocha, seconded by Mrs. Chimes, to GRANT the request for an area variance for the following reasons:
1. The difficulty was not self-created, as the petitioner is limited to where to place the pole barn, given the topography of the land.
2. The variance is not substantial; approximately 10 feet of the building will be in front of the house.
3. It is not feasible to place the pole barn in another location, given the leech bed and drainage problems.
4. The character of the neighborhood will not be changed.
ZBA Mtg. #8 Reg. Mtg. #8 August 19, 2003 Page 12
This variance is GRANTED with the following STIPULATIONS:
1. The wooded area/shrubbery in front of the pole barn and to the north side of the pole barn are to be maintained and remain intact to act as a buffer zone between the adjacent property and the front of the road.
2. The pole barn, as much as possible, shall be designed and finished to conform to the look of the house.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
CHIMES AYE
JAROCHA AYE
HOLMWOOD AYE
LENNARTZ AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE VARIANCE IS HEREBY GRANTED with STIPULATIONS.
6. ZBA File #28-03, Joseph McDonnell, 30 Symphony Circle, Zoned R-2 (Sub Lot 21, Map Cover 2737; SBL#172.20-2-42). Requests an area variance to construct a shed 6’ from a side lot line. Minimum side yard setback in an R-2 lot divided after 12/89 is 15’, Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.
APPEARANCE: Mr. Joe McDonnell, property owner
Mr. McDonnell presented plans and a photo of a proposed prefabricated storage shed that he desires to locate on his property. Mr. McDonnell explained why the proposed location for the shed was the best choice to the members.
Chairman Orffeo stated that he sympathizes with the petitioner, noting that the configuration of the lots in this subdivision are steep and narrow at the front, creating a problem. At least two other residents of this subdivision have come before the Board for variances. Chairman Orffeo also noted that it appears that the petitioner has reviewed all possible locations for placement of the shed.
Mr. Jarocha stated that he agrees with the location chosen for the shed placement. To comply with the code, the proposed shed would have to be placed almost in the center of the lawn. This would be not aesthetically pleasing.
Mr. Holmwood stated that he feels this is a good addition to the backyard.
The Chairman then asked if there was anyone in the audience who would wish to speak in favor of the granting of the variance.
(Twice)
ZBA Mtg. #8 Reg. Mtg. #8 August 19, 2003 Page 13
NO RESPONSE
The Chairman then asked if there was anyone in the audience who would wish to speak against the granting of the variance.
(Twice)
NO RESPONSE
The Chairman then asked if the Secretary had any additional communications either for or against granting the variance.
The Secretary stated no communications have been received.
A motion was made by Mr. Lennartz, seconded by Mr. Jarocha, to GRANT the request for an area variance for the following reasons:
1. There will be no undesirable change in the character of the neighborhood.
2. The benefit cannot be achieved in another way, due to the shape of the lot.
3. The request is not substantial.
4. There will be no effect on the environment or have a physical impact on the neighborhood.
5. The difficulty was not self-created.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
CHIMES AYE
JAROCHA AYE
HOLMWOOD AYE
LENNARTZ AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE VARIANCE IS HEREBY GRANTED.
There being no further business to be presented to the Board at this time, the Chairman, Remy C. Orffeo adjourned the meeting at 9:30 p.m.
DATED: September 9, 2003 Respectfully submitted,
REVIEWED: September 23, 2003 Rosemary M. Seivert, Secretary
Zoning Board of Appeals
Remy C. Orffeo, Chairman