ZBA Mtg. #3                         Reg. Mtg. #3               March 18, 2003                     Page 1

 

ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the March 18, 2003 meeting held at the Basement Public Meeting Room, S4295 South Buffalo Street.

 

MEMBERS PRESENT:       Remy Orffeo, Chairman

                                      Deborah Chimes

Donald Holmwood

Robert Lennartz                                

Jo Ann Litwin, Alternate

                            

EXCUSED:                      Henry Jarocha

                                     

OTHERS PRESENT:                   David Holland, Assistant Building Inspector

                                      J. Michael Wolf, Deputy Town Attorney

                                      Rosemary Seivert, Zoning Board Secretary

 

The Chairman called the meeting to order at 7:30 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.

 

APPROVAL OF THE MINUTES OF THE FEBRUARY18TH, 2003 REGULAR MEETING:

 

A motion was made by Mr. Lennartz, seconded by Ms. Litwin to accept the minutes of the February 18th, 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

LENNARTZ                      AYE

LITWIN                            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 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.

 

 

    ZBA Mtg. #3                     Reg. Mtg. #3             March 18, 2003                    Page 2

 

The Chairman stated that site inspections of all cases presented tonight were made by:

 

ORFFEO                         AYE

CHIMES                          AYE

HOLMWOOD                   AYE

LENNARTZ             AYE

LITWIN                            AYE                      

 

                                              NEW BUSINESS

 

1.                                                                                                                                                                       ZBA File #3-03, Joseph DeMarco & Timothy Arlington, Vacant Land, West Side of Taylor Rd., North of 3876 Taylor Rd., (Part of Farm Lot 32, Township 9, Range 7; SBL#161.00-5-30.11), Zoned I-1.  Requests three (3) area variances, one for a front yard setback of 34 ft., the second for a rear setback of 10 ft. and the third for a 10 ft. side setback along the south lot line adjoining a residence.  Minimum setbacks in an I-1 Zone are 50 ft. front, 20 ft. rear and 20 ft. side setback where adjoining a residence, Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.

 

                                                                      APPEARANCE:  Tim Arlington, Apex Consulting

 

Chairman Orffeo noted that Mr. DeMarco, in a letter dated December 2nd, 2002, authorized Mr. Arlington to represent him before this Board.  Mr. Arlington presented the proposed project to the members explaining that Mr. DeMarco would like to construct two 9,000-sq. ft. masonry buildings that would be leased to two unknown tenants.  Mr. Arlington, referencing New York State Town Law #267, cited reasons as to why the variances should be granted.  He also submitted a letter dated March 14th, 2003 from Mr. William Sahlem, a neighboring property owner, noting that he had no objection to the granting of the variances.  Mr. Arlington supplied the Board with information listing variances that had been granted to other nearby property owners for similar relief.  He further told the members that he had not known that a residence exists along the south lot line where the 10’ side setback request was being made.  He offered to withdraw this request if the Board desired.

 

The Board Members’ questions focused on various topics regarding the proposed project and established the following; the proposed buildings would have no commercial showrooms and would be used only for office and storage.  The proposed buildings would be masonry colored split face block with accent bands.  The type of businesses (plumbing/masonry) reported to the members that could be tenants created concerns with regards to the types of commercial vehicles that would be using Taylor Road.  Mr. Arlington told the members that there would be no outside storage as all vehicles would be stored inside the buildings at night.  Also, 13 parking spaces had been allocated for each proposed building.  The members questioned if a purchase agreement exists between Mr. DeMarco and Mr. Sahlem, as Town records indicate that

         

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Mr. William Sahlem is the reputed owner of this property.  Mr. Arlington could not verify who the owner is of this property.  The Chairman stated that a lack of economic return could not be claimed for property not owned by the petitioner.  However, if Mr. DeMarco owned the property, the Chairman requested that Mr. Arlington supply the Board with information showing if an economic return could be gained on one (1) smaller proposed building at this location.  The members felt that the proposed project might be too large for this property.  Mr. Arlington did not know if Mr. DeMarco could reduce the size of the proposed buildings.  Further concern was expressed regarding the large paved area in front of the property.  The members felt that this area might invite front yard parking.  Also, the turning radius for traffic entering and exiting was discussed as not being adequate.  Although zoned I-1, concerns were expressed for the area residents involving the additional truck traffic that would be created.  If proven that Mr. DeMarco (as owner of the property) needed to have two buildings to achieve an economic return, the Chairman also wanted information submitted showing if an economic return could be achieved if one of the buildings was reduced to 6,000 sq. feet.

 

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)

 

OPPONENT:

 

Mr. Robert Hartman

3951 Taylor Road

Orchard Park, New York  14127

 

Mr. Hartman read a prepared statement that he submitted to the members with photographs of properties owned by Mr. DeMarco.  Mr. Hartman told the members of his concerns.  He feels that no hardship exists.  He further stated that the proposed thirteen parking spaces are not in compliance with the town ordinance and that no guarantee could be given that Mr. DeMarco would comply with what he was proposing, as the buildings would be leased.  He also told the members of his concerns for traffic safety on Taylor Road and asked the members to travel Taylor Road to view the existing conditions described.

 

The Chairman requested that Assistant Building Inspector David Holland advise the Board what the parking space requirements are for the proposed project.

 

ZBA Mtg. #3                Reg. Mtg. #3             March 18, 2003                    Page 4

  

Mrs. Robert Hartman

3951 Taylor Road

Orchard Park, New York  14127

 

Mrs. Hartman spoke of the danger to the children involving the increase in commercial traffic to the area.

 

Mrs. Doris Covino

3825 Taylor Road

Orchard Park, New York  14127

 

Mrs. Covino stated the road is heavily used and she does not want additional truck traffic.

 

Mr. Covino spoke regarding the conditions of Taylor Road, stating that he believes that the road cannot handle additional traffic.  He believes a dangerous situation will be created involving plows, school buses and increased commercial truck traffic.

 

Mr. Chris Repp, owner of Repp Construction

3810 Taylor Road

Orchard Park, New York  14127

 

Mr. Repp told the members that he would like the petitioner to adhere to the same restrictions and conditions that were placed upon him with his business, also located on Taylor Road.  Mr. Repp expressed concern over the “shoe-horning in” attempt that was being made upon this piece of property, uncontrolled front yard parking that could occur and the potential for tenants to violate terms of “no outside storage”.

 

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.

 

The Chairman noted that the submitted SEQR short EAF was incomplete, therefore, the Board Members were unable to perform any action.  The Chairman also noted that the members require additional information to render a decision.

 

Mrs. Chimes made a motion, seconded by Ms. Litwin, to TABLE this case until the May 20th, 2003 meeting for the following reasons:

 

1.                                                                                                                                                                                                                                                                                                                                      The SEQR form must be completely filled out.

 

2.                                                                                                                                                                                                                                                                                                                                       Clarification of ownership for this property must be given.

 

 

 

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3.                                                                                                                                                                                                                                                                                                                                      Justification for their economic return on the investment is required. (Possibly based upon the purchase price of the property and the building cost.)

 

4.                                                                                                                                                                                                                                                                                                                                      The Public Safety Committee will review the petitioner’s project at their next meeting, which is April 15, 2003.

 

5.                                                                                                                                                                                                                                                                                                                                      The Engineering Department should review alternatives to what is being proposed with the front asphalt section.  Specifically, the Board wants another way to enter the building than driving along the front. 

 

THE VOTE ON THE MOTION BEING:

 

ORFFEO                AYE

CHIMES                 AYE

HOLMWOOD          AYE

LENNARTZ             AYE

LITWIN                  AYE                      

 

THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION TO TABLE THIS ITEM UNTIL THE MAY 20th MEETING IS HEREBY PASSED.

 

2.                                                                                                                                                                       ZBA File #4-03, Marie Stachera & Vicki Kehr, 3385 Orchard Park Rd., (Part of Farm Lot 16, Township 10, Range 7; SBL#152.20-4-1), Zoned B-4.  Requests a use variance to operate a Spa Salon & Medi-Spa in a B-4 Zone.  Service establishments such as a Spa, Salon and Beauty Shop are not permitted uses in a B-4 Zone, Section 144-9A, Schedule of Use Controls.

 

    APPEARANCE:  Mr. Jay Pohlman, Attorney

 

    Chairman Orffeo noted that a letter dated February 15th from the current property owners of 3385 Orchard Park Road and a letter dated March 12th, 2003 gave Mr. Pohlman permission to represent all of the parties in this case.  Mr. Pohlman introduced the petitioners, Mr. & Mrs. Stachera and Mr. & Mrs. Kehr and the current property owner, Mr. Swyers to the members.  Mr. Pohlman presented the proposed plans and explained to the members that the petitioners have a contract to purchase Mr. Swyers property, contingent upon the granting of the use variance.  Mr. Pohlman explained that the interior of the building would be remodeled to accommodate his clients needs.  The zoning of the area allows for medical uses and other professional offices.  There is no specific language for the use of a day spa.  Therefore, at the suggestion of the Building Inspector’s office, the petitioners are requesting a review of their proposed project in order to ensure that this new type of business fits within the B-4 Zone. 

   

    Mr. Holmwood questions established the types of services that would be offered. 

   

   

 

 

ZBA Mtg. #3                Reg. Mtg. #3             March 18, 2003                    Page 6

 

    Mr. Lennartz confirmed that the footprint of the building would not be changed, that parking and traffic would not be a problem and that at this time there is no request for signage.

   

    Ms. Litwin’s questions established that the petitioners are experienced professionals with an established business. The Orchard Park Road location would have licensed operators offering the various services that had been discussed.  The petitioner stated that no actual surgeries would be performed at this location.

 

Mrs. Chimes also reconfirmed with the petitioner that there would be no actual surgeries at the proposed location.  However, Mr. Pohlman noted that this is a permitted use in the B-4 Zone.  It was established that separate entrances would exist for the different services to ensure privacy, the number of employees would not exceed the existing parking spaces and no structural changes will be made to the building.  However, an exterior covered area for customer convenience to avoid the elements may be built.

 

    The Chairman reconfirmed with the Assistant Building Inspector that hair salons and other related businesses are located in the neighboring area.  Mr. Holland stated that Mr. Campion had felt that the Board needed to review the application because the code did not specifically identify day spas.

 

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)

 

PROPONENT:

 

Mr. Swyers

170 Independence Drive

Orchard Park, New York  14127

 

Mr. Swyers told the members that he believed this would be a great use for this building. 

 

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.

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The members’ discussion concluded that this is a good use for a vacant building and that parking is adequate.  Mrs. Chimes noted that just because the language of the code does not keep up with the times by having the exact terminology it does not mean that the Board should not look at the overall general concept of a project and determine if it conforms.  The Chairman stated this business is compatible with the zoning of that corridor and other similar businesses are within that site.

 

Mr. Lennartz, made a motion, seconded by Mrs. Chimes, 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

CHIMES                          AYE

HOLMWOOD                   AYE

LENNARTZ                      AYE

LITWIN                            AYE                      

 

THE VOTE ON THE MOTION BEING UNANIMOUS, A NEGATIVE DECLARATION IS MADE UNDER SEQR.

 

Mr. Lennartz, made a motion, seconded by Mr. Holmwood, to APPROVE the GRANTING of the use variance for the following reasons:

 

1.                                                                                                                                                                                                                                                                                                                                      The strict application of the regulations would deprive the applicant from the use and the benefit from this property.

 

2.                                                                                                                                                                                                                                                                                                                                      The hardship is unique.  The ordinances need to be modified and expanded with terminology of today.

 

3.                                                                                                                                                                                                                                                                                                                                      The variance does not alter the essential character of that corridor.

 

4.                                                                                                                                                                                                                                                                                                                                      The hardship is not self-created.

 

THE VOTE ON THE MOTION BEING:

 

ORFFEO                AYE

CHIMES                 AYE

HOLMWOOD          AYE

LENNARTZ             AYE

LITWIN                  AYE                      

 

THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION TO APPROVE THE GRANTING OF THE VARIANCE IS HEREBY PASSED.

 

 

 

ZBA Mtg. #3                Reg. Mtg. #3             March 18, 2003                    Page 8

 

3.                                                                                                                                                                       ZBA File #5-03, Edmund F. Burke, Fred Hanania, 2911 Southwestern Blvd., (Part of Farm Lot 409, Township 10, Range 7; SBL#153.06-2-1), Zoned B-2. 

Requests a use variance to operate a transmission repair shop in a B-2 Zone.  Transmission repair is not a permitted use in a B-2 Zone, Section 144-9A, Schedule of Use Controls and 144-5 Definition of Automotive Service Station.

 

APPEARANCE:   Mr. Edmund F. Burke

 

Upon applying for an updated certificate of occupancy with the building inspector’s office, Mr. Burke was informed that a transmission repair shop in the B-2 Zone is not a permitted use.  Mr. Burke told the members that his tenant, Bison Transmission, has been operating for the last six months at this location and that he had assumed that this was a permissible use.  Mr. Burke told the members that it would be an economic hardship for both Bison Transmission and himself if the variance were not granted.

 

The members noted that this is a well-kept business and expressed disbelief that it is not a permitted use in that area.  The members discussed the fuel oil separator and directed the petitioner to have it checked and verify that it is in compliance with Mr. Holland, the Assistant Building Inspector. The Chairman also suggested to the petitioner that if the use of the building were to change again he should check with the building inspector’s office, as the idea that economic harm would occur was due to the fact that the petitioner had failed to check the ordinance.  The petitioner apologized and stated he would do so if any future changes occur.

 

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)

 

PROPONENT:

 

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.

 

The Chairman made a motion, seconded by Mrs. Chimes, to APPROVE the GRANTING of the use variance for the following reasons:

 

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1.     The variance will not alter the essential character of the neighborhood.  There are similar uses in the area.

 

2.     The hardship was not self-created.

   

THIS VARIANCE IS HEREBY GRANTED WITH THE FOLLOWING STIPULATIONS:

 

1.       The petitioner is to submit documentation showing that the oil separator is in compliance to Mr. David Holland, the Assistant Building Inspector.

 

2.       The applicant is to complete and submit the SEQR form and the Board will then issue a negative declaration.

 

3.       The variance will take effect when both of these submissions are completed.

 

THE VOTE ON THE MOTION BEING:

 

ORFFEO                AYE

CHIMES                 AYE

HOLMWOOD          AYE

LENNARTZ             AYE

LITWIN                  AYE                      

 

THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY GRANTED WITH STIPULATIONS.

 

There being no further business to be presented to the Board at this time, the Chairman, Remy C. Orffeo adjourned the meeting at 9:08 p.m.

 

 

 

 

DATED:             March 31, 2003                             Respectfully submitted,

REVIEWED:     April 3, 2003                                   Rosemary M. Seivert

Zoning Board of Appeals

Secretary

 

 

 

Remy C. Orffeo, Chairman