ZBA Mtg. #7 Reg. Mtg. #7 July 15, 2003 Page 1
ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the July 15, 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
EXCUSED: Deborah Chimes
OTHERS PRESENT: David Holland, Assistant Building Inspector
J. Michael Wolf, Deputy Town Attorney
Rosemary Seivert, Zoning Board Secretary
The reciting of the Pledge of Allegiance was instituted as a part of the operating procedure for this meeting and all future Zoning Board of Appeals meetings at the request of Board Member Robert Lennartz.
Following the pledge, the Chairman called the meeting to order at 7:35 p.m. stating 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. The Chairman further noted that due to Mrs. Chime’s absence, Alternate, Ms. Jo Ann Litwin would be a voting member.
APPROVAL OF THE MINUTES OF THE JUNE 17, 2003 REGULAR MEETING:
A motion was made by Mr. Lennartz, seconded by Chairman Orffeo to accept the minutes of the June 17, 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
HOLMWOOD AYE
JAROCHA AYE
LENNARTZ AYE
LITTWIN 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, Article 16, Sections 267, 279 and 280a, Subdivision 3, and the Town of Orchard Park Zoning
ZBA Mtg. #7 Reg. Mtg. #7 July 15, 2003 Page 2
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:
ORFFEO AYE
HOLMWOOD AYE
JAROCHA AYE
LENNARTZ AYE
LITWIN AYE
OLD BUSINESS
1. ZBA File #15-03, Dennis Boyle, Vacant Land East side of Taylor Rd., (Part of Farm Lot 24, Township 9, Range 7; SBL #’s 161.00-3-26 & 161.19-2-1), Zoned R-3. Requests three area variances to construct a town house project. First, to reduce the setback to all lot lines to 50 ft. Minimum setback to property lines for multiple dwellings under Special Exception Use is 75 ft., Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations. Second, to reduce the setback to the right-of-way of the private roads and the distance between buildings. Minimum setback to the right-of-way of a private road is 50 ft. Minimum distance between buildings is 60 ft., Section 144-46C(4)(a). Third, to reduce the setback to driveways and parking lots. Minimum setback to a driveway or parking lot is 25 ft. from the front of a building, Section 144-46C(4)(b). This case was tabled at the June 17, 2003 meeting.
APPEARANCE: Sean Hopkins, Esquire, authorized representative for the petitioner
Carmine Provenzano, Silvestri Architects
Chairman Orffeo stated that the petitioner had supplied the Board Members with the information that had been requested at the previous meeting. The submitted traffic study dated July 2003 and a letter from Commonwealth Cultural Resources address the remaining SEQR issues.
Mr. Provenzano presented a revised plan for the proposed townhouse project to the members, noting that two additional units have been eliminated. The total number of units being proposed in the revised plan is 88. Mr. Hopkins stated that the project was revised to address the Board’s concerns. The 75’ setback requirement to the property lines adjacent to present or future residential areas has been met. However, the project is not in compliance with the 75’ setback requirement in the areas adjacent to the 219 and the wetlands, as future development in these areas is not likely. Mr. Hopkins explained that he believes the project meets the standards used by the Board in granting area variances. Mr. Hopkins told the members that he feels that there will be less impact on the
school system and more green space provided if a town house project is built, as opposed to an apartment complex. In addition, he stated that no substantial
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opposition to the town house project exists.
The Chairman noted that two variance requests are being made for nine (9) different locations, a total of eighteen requests for the two variances. The requests being sought were not for “just a few” variances.
The members’ review of the revised project concluded with Mr. Holmwood noting that configuration changes were made in this project. However, the number of units remains the same. Chairman Orffeo commented that having the units built in a reduced area because of an increase in wetlands, as proposed, increases the density of the project.
Mr. Lennartz noted that he feels this is the creation of a crowded neighborhood. He suggests that the units be reduced to approximately 68 and he asked the petitioner if this figure would be workable. Mr. Hopkins stated that a reduction to 68 units would be unacceptable.
Ms. Litwin expressed several concerns she has with this project. One concern is that there is no way to gauge that there would be fewer children to affect the school system. She further explained that she feels emergency services might have difficulty reaching the residents in such a dense community. Ms. Litwin stated that the benefit being sought could be achieved in another way. Ms. Litwin feels the project needs to be less dense and that the request is substantial. However, she did not feel that there would be an adverse effect or impact on the physical or environmental conditions of the neighborhood. She further noted that the traffic study did have several areas that she questions; turning situations, such as turning left out of Taylor Road onto N. Buffalo Road is more difficult than the study indicates.
Mr. Jarocha, while noting that he feels that the project is worthwhile, compared it to putting “Rich Stadium on a postage stamp”.
The Board Members stated that they believe the revised plan remains too dense
for the proposed location. Mr. Hopkins asked to be allowed to contact Mr. Boyle via phone and consult with him regarding the Board’s comments. The Chairman
agreed to this request and after having contacted Mr. Boyle, Mr. Hopkins told the members that Mr. Boyle is willing to reduce the number of units to 80. The members discussed how buildings could be repositioned and a pavement area reduced to achieve less density. Mr. Hopkins noted that the clubhouse might be lost in the revised plan.
The members concluded that with regards to the density of the proposed project the elimination of two additional units were a great improvement. The members did not want to delay Mr. Boyle and have him return with a reconfiguration for this project, therefore, Mr. Hopkins stated that a reconfiguration would be sent to
the members for their review and input.
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Chairman Orffeo 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 short EAF.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
HOLMWOOD AYE
JAROCHA AYE
LENNARTZ AYE
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, A NEGATIVE DECLARATION
IS MADE UNDER SEQR.
Mr. Holmwood made a motion, seconded by Ms. Litwin, to APPROVE the area variances for the following reasons:
1.The plans are to be revised eliminating buildings #23 and #24 from the north east corner. The project will consist of a total of 80 individual units, which is 20 buildings plus the clubhouse, which possibly may not be built.
2.The benefit cannot be achieved in another way.
3.The request is not substantial.
4.There will not be an adverse effect on the physical or environmental conditions of the neighborhood or district.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
HOLMWOOD AYE
JAROCHA AYE
LENNARTZ AYE
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE VARIANCES ARE HEREBY GRANTED WITH THE FOLLOWING STIPULATION:
1. An effort will be made to spread the project out and the reconfiguration will be sent to the Zoning Board of Appeals.
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NEW BUSINESS
1. ZBA File #22-03, Susan Hogan, 3925 N. Buffalo Road, (Part of Farm Lot 16, Township 9, Range 7; SBL#162.13-1-4), Zoned B-3. Requests an area variance to construct a 792 square foot detached garage. Accessory structures in a B- Zone shall be no larger than 120 sq. ft., Section 144-24B.
APPEARANCE: Ms. Susan Hogan, property owner
Ms. Hogan explained how the parking located at the front of her property had been eliminated by the New York State Department of Transportation during the recent road construction of North Buffalo Road. Ms. Hogan explained that she desires to have a garage built at the back of her property that will be used by her and several employees, replacing the parking area that they had used prior to the reconstruction. She told the members that the neighbors had no objection to the proposed garage.
Mr. Jarocha established that the purpose for the garage is to replace the parking that was lost due to the road changes made by the New York State Department of Transportation. Also, approximately forty feet of fields exists beyond the proposed garage. Ms. Hogan stated that the proposed garage would have proper gutters and drainage.
Ms. Litwin confirmed with the petitioner that she feels the road construction improves her property by having all clients park at the back of the building.
Mr. Lennartz asked Ms. Hogan if the same result could be achieved if she installed additional parking spaces, rather than building the proposed garage. Ms. Hogan explained to the members how providing additional parking spaces would not give her the result she desires.
Chairman Orffeo also established that Ms. Hogan did not feel an attached garage would be workable for her.
The Chairman then asked if there was anyone in the audience who would wish to speak in favor of the granting of this variance.
(Twice)
NO RESPONSE
The Chairman then asked if there was anyone in the audience who would wish
to speak against the granting of this variance.
(Twice)
NO RESPONSE
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The Chairman then asked the Secretary if any additional communications, either for or against the granting of the variance were received. It was noted that Mr. John Bray of 4025 North Buffalo Road, Orchard Park, New York, had sent a letter in support of the granting of the variance.
The Secretary stated no other communications have been received.
Chairman Orffeo made a motion, seconded by Mr. Jarocha, that this is an Unlisted action and that a Negative Declaration under SEQR be made based on the submitted short EAF.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
HOLMWOOD AYE
JAROCHA AYE
LENNARTZ AYE
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, A NEGATIVE DECLARATION
IS MADE UNDER SEQR.
Ms. Litwin made a motion, seconded by Mr. Jarocha to GRANT the area variance for the following reasons:
1. There will be no undesirable change in the character of the neighborhood or a detriment to nearby properties.
2. The elimination of the front yard parking is actually an improvement to the neighborhood.
3. The structure will not be visible from the road.
4. The benefit sought cannot be achieved in another way other than the granting of the variance.
5. The parking that was eliminated needs to be relocated elsewhere upon the property.
6. The request is not substantial.
7. There is no adverse effect or impact on the physical or environmental conditions of the neighborhood or district. There will actually be an improvement.
8. The difficulty was not self-created.
THE VOTE ON THE MOTION BEING:
ZBA Mtg. #7 Reg. Mtg. #7 July 15, 2003 Page 7
ORFFEO AYE
HOLMWOOD AYE
JAROCHA AYE
LENNARTZ AYE
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE VARIANCE IS HEREBY GRANTED.
2. ZBA File #23-03, Phillip Sorge, 4089 California Road, (Sub Lot 15, Map Cover 2321; SBL#161.14-1-5), Zoned R-3. Requests an area variance to allow an attached garage, built without a permit, to remain 15.6 ft. from the right-of-way of Stepping Stone Lane. Minimum side street setback of a corner lot shall equal the front setback (30-ft.), Section 144-22D. This variance was denied on 8/21/01, ZBA File #24-01.
APPEARANCE: Mr. Phillip Sorge, property owner
The Chairman noted that the members not on the Board at the time of the previous appeal have reviewed the case file. The Chairman directed the secretary to enter the minutes from the previous hearing into this evening’s record, with Mr. Sorge’s agreement, and then asked Mr. Sorge to present only new information pertaining to his request. The minutes from the August 2001 meeting are as follows:
“ZBA File #24-01, Phillip Sorge, 4089 California Rd., (Sub Lot 15, Map Cover 2321; SBL#161.14-1-5), Zoned R-3. Requests an area variance to allow an attached garage, built without applying for a building permit, to remain 16.9 feet from the right of way of Stepping Stone Lane. Min. side street setback of a corner lot shall equal the front setback (30-ft.), Section 144-22D.
APPEARANCE: Mr. Phillip Sorge
Mr. Sorge explained to the board members the various circumstances that led him to believe that he is not in violation of the Town Code by having built an attached garage next to what he felt was a private drive. He presented signed documentation stating his neighbors were not averse to his building of the garage. He further stated the Town of Orchard Park did not maintain this private drive.
The Chairman stated that the letter presented by Mr. Sorge is signed by Mr. Russell Sweet, “Vice President of the Complex”, Mr. James Haas of 9 Stepping Stone and 4075 California Road, identified as “the house on the left side”.
Mr. Orffeo verified with Mr. Campion that the road is maintained and plowed by the Town of Orchard Park Highway Department since it was built. Mr. Campion further stated that the road was rebuilt two to four
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years ago. Mr. Orffeo confirmed that the petitioner built this garage, himself, without a building permit. Mr. Sorge stated he made a mistake. Mr. Orffeo asked the petitioner if the garage foundation the other side of this duplex home, also built by the petitioner was done so with a building permit. It was established that this permit was not applied for until after the petitioner started the project. Mr. Orffeo established that Mr. Sorge occupies the duplex on the side that already has the garage. Mr. Orffeo asked if inspections have been performed, such as the electrical. It was learned that there has been no electrical inspection. Mr. Campion stated that no service will inspect the electrical if no electrical permit is issued.
Mr. Coon complimented the construction of the garage and told the petitioner that had he applied for a building permit, he would have then known what the building requirements are and avoided this significant problem. Mr. Coon asked what the size of the garage is noting that there is no engineering drawing. Mr. Sorge stated it is a two-car garage, twenty-four feet (24’) off the house and twenty-eight feet (28’) wide to the back. Mr. Coon reviewed the garage placement and dimensions with the petitioner surmising that the petitioner is not aware of what the Town Ordinances allow.
Mr. Holmwood established that the petitioner built the first garage addition three years ago. Mr. Sorge stated that he recently installed the foundation for a garage on the other side of the duplex intending to erect the garage next year. The area in back of the existing garage has a covered enclosed patio, eleven feet behind the house and nine feet off the back.
Mr. Pawenski asked the petitioner to clarify how the island that separates the road, “Stepping Stone”, can be within his property. Mr. Sorge described that the island is approximately six feet onto his property. Mr. Pawenski verified with the petitioner that it is not the island that splits the road into two, but a separate area of landscaping.
Mr. Kaczor asked Mr. Campion what needs to be done with the original garage addition to be sure it is in compliance and properly inspected. Mr. Campion stated that the drywall will have to be removed so that the framing, firewall and insulation can be viewed. He further stated that if the electrical is not inspected, this must also be done. The petitioner stated that the interior walls have been framed-in only, not enclosed, with the firewall installed containing no outlets.
The Chairman then asked if there was anyone in the audience who would wish to speak on behalf of granting this variance.
(Twice)
No Response.
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The Chairman then asked if there was anyone in the audience who would wish to speak against the granting of this variance.
(Twice)
No Response.
The Chairman then asked if the Secretary had any communications either for or against granting the variance.
The Secretary stated no communications have been received.
Several Board Members expressed they were not pleased that a building permit had not been applied for. Mr. Pawenski noted that if the petitioner had applied for a building permit it may have been possible to work with him before he built. It was also noted that no neighbors objected to the variance request. The members discussed the fact that this was a self-created hardship with nearly a 50% variance request, which is substantial. Mr. Orffeo stated he did not believe their job is to provide relief for self-imposed harm. Mr. Kaczor stated that aesthetically the property looks good. He further stated that there will be no danger or problem created with line-of-site vision for traffic. He also feels the addition can still be inspected to insure the wiring and proper firewall is in place.
Mr. Orffeo made a motion, seconded by Mr. Holmwood to DENY the variance for the following reasons:
1. This is a substantial request.
2. It is a hardship that was self-created by the applicant.
3. It will create a change in the character of the neighborhood. There is the question that anytime the building code is exceeded, green space is lost and the cumulative affect undermines the statute”.
THE VOTE ON THE MOTION BEING:
KACZOR NAY
HOLMWOOD AYE
ORFFEO AYE
COON AYE
PAWENSKI NAY
THE VOTE ON THE MOTION BEING THREE (3) IN FAVOR OF DENIAL AND TWO (2) IN OPPOSITION, THE MOTION TO DENY IS PASSED”.
Mr. Sorge apologized to the new members explaining that he had not obtained a building permit because he had not known that he was required to have one. He further told the members that a building permit had been issued for the second ZBA Mtg. #7 Reg. Mtg. #7 July 15, 2003 Page 10
garage addition, that all appropriate paper work has been filed and the property taxes have been paid on the initial garage addition. Mr. Sorge gave a brief explanation of what he feels created this situation, noting that Stepping Stone Lane is known on the map as a town road, but it really is not a town road. In his opinion, it is a private road.
The Chairman told Mr. Sorge that it makes no difference if Stepping Stone Lane
is a town road or not. The fact remains that Mr. Sorge built a garage without a permit. Chairman Orffeo noted that after the August 2001 denial, two choices existed for Mr. Sorge. Mr. Sorge had the choice to work with the Building Inspector and reduce the size of the structure or he could file an Article 78 with the State Supreme Court to determine if the Zoning Board of Appeals decision was correct. Mr. Sorge failed to act upon either of these two choices. Chairman Orffeo further stated that Mr. Sorge ignored the fact that he needed to obtain a building permit for the first garage addition and that he started the second garage foundation, also, without a building permit. He further failed to comply with either of the two choices he had from his first Zoning Board of Appeals case. The Chairman asked Mr. Sorge if he had any new information. Mr. Sorge presented a photo of his neighbor’s garage that is seven feet from the road, noting that another neighbor’s driveway comes out onto Stepping Stone Lane.
The Chairman then asked if there was anyone in the audience who would wish to speak in favor of the granting of this variance.
PROPONENT:
Ms. Mary Jane Kelley
15 Stepping Stone Lane
Orchard Park, NY 14127
Ms. Kelley is aware of his problem, and told the members that she is pleased with his property.
The Chairman then asked if there was anyone in the audience who would wish to speak against the granting of this 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.
Mr. Lennartz stated that as there is no new information that has been provided, he would support the pervious Board’s decision to deny the variance request.
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Mr. Lennartz made a motion, seconded by Mr. Holmwood, to DENY the area variance for the following reasons:
1. There is no new information presented from the previous case.
2. The building was built without a permit.
3. There should be a 30’ setback, versus the 15-foot setback that exists. This is considered an undesirable change in the neighborhood.
4. The benefit could have been sought in another way.
5. The request is substantial.
6. The difficulty is self-created.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
HOLMWOOD AYE
JAROCHA AYE
LENNARTZ AYE
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE REQUEST IS DENIED.
There being no further business to be presented to the Board at this time, the Chairman, Remy C. Orffeo adjourned the meeting at 8:55 p.m.
DATED: July 22, 2003 Respectfully submitted,
REVIEWED: July 30, 2003 Rosemary M. Seivert, Secretary
Zoning Board of Appeals
Remy C. Orffeo, Chairman