ZBA Mtg. #5 Reg. Mtg. #5 May 20, 2003 Page 1
ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the May 20th, 2003 meeting held at the Basement Public Meeting Room, S4295 South Buffalo Street.
MEMBERS PRESENT: Remy Orffeo, Chairman
Deborah Chimes
Donald Holmwood
Robert Lennartz
Henry Jarocha
EXCUSED: Jo Ann Litwin, Alternate
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 7:35 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.
APPROVAL OF THE MINUTES OF THE APRIL 15, 2003 REGULAR MEETING:
A motion was made by Mr. Lennartz, seconded by Mr. Holmwood to accept the minutes of the April 15th, 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, 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.
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The Chairman stated that site inspections of all cases presented tonight were made by:
ORFFEO AYE
CHIMES AYE
HOLMWOOD AYE
JAROCHA AYE
LENNARTZ AYE
Chairman Orffeo stated that there has been series of articles in the local newspapers regarding the various Town of Orchard Park Boards. He further stated that he would like to thank Town Board Member, Dave Kazor for his supporting the independence of the Planning, Zoning and Conservation Boards with the functions that they have. He also noted that several of the other Board members had joined with him in supporting the Board’s function. Chairman Orffeo noted that the purpose of these Boards is to remain independent and render fairness in their decisions. This has always been the case with this Board.
The Chairman further announced that the petitioner has requested item #6, Zoning Board File #14-03 to be withdrawn. Also, the following correction is noted in item #5, Zoning Board File #13-03; “The minimum rear setback for any existing lot of record greater than 120 ft. wide in and R-3 Zone is 30 ft.” The Chairman noted that this correction has no bearing on the variance request.
OLD 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 an area variance for a front yard setback of 30 ft. Minimum setback in an I-1 Zone is 50 ft. This case was tabled at the March 18th, 2003 meeting.
Mr. Jarocha recused himself from voting in this case.
APPEARANCE: Mr. Joseph DeMarco, developer
Mr. Timothy Arlington, Architect
Mr. William Sahlem, property owner
The Chairman explained to the petitioners that there will only be four (4) voting Board Members. Three votes are needed for an approval. In the event of a decision that results in a tie, the motion is defeated. The petitioner has the choice (after presenting his case) of allowing the Board to vote or postpone the decision until the next meeting, where the absent member will have had a chance to review the case, and five members will then be able to vote.
The Chairman asked that a motion be made regarding the revised SEQR form that has been submitted.
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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
THE VOTE ON THE MOTION BEING UNANIMOUS, A NEGATIVE DECLARATION IS MADE UNDER SEQR.
Mr. Arlington told the members that based on the comments made at the March 28th, 2003 Zoning Board meeting, the proposed project is scaled back. He presented and explained a revised plan to the members. The proposed project is now for one (1) -12,000-sq. ft. building that has been moved forward, enabling vehicles to travel to the back of the building for parking and deliveries. Mr. Arlington noted that the parking or storage of vehicles at the front of the building is eliminated and that the retention pond is now detailed on the plans. The revised plan provides 28 total parking spaces. Mr. Arlington further confirmed that Mr. Sahlem, owner of this property, is involved in a joint venture with Mr. DeMarco. The intent is that Mr. Sahlem will transfer the property to Mr. DeMarco upon the completion of the building. The project is for a spec building with the flexibility to have offices and/or warehouse space. Mr. Arlington stated that there are no tenants for this building at the present time.
The Chairman explained why this case had been initially tabled, noting that the petitioner’s proposed project had been scheduled to be reviewed by the Public Safety Committee, however, the petitioner did not have representation at this meeting. The Public Safety Committee, in a correspondence to the Zoning Chairman, dated April 30th, 2003 informed him that the members had questions that needed to be addressed before they could issue a traffic safety report.
The members’ questions established that deliveries and parking will be behind the building and that the turning radius is adequate for tractor-trailer usage. Also, a sidewalk will be located at the front for access to the front of the building. Mr. Lennartz feels that traffic safety is one of the central issues with this project that needs to be addressed. He further discussed the maintaining of the property and the curb appeal, which were previous concerns expressed by area residents.
The Chairman asked the petitioner to advise the reduction of the square footage. Mr. Arlington noted that the building is now 12,000-sq. ft., which is a reduction of 1/3. The Chairman noted that the petitioner had reduced the size of the project, eliminated the front yard parking, added green space and had diminished the view of the dumpsters. The members concerns have been addressed, except for traffic safety. The revised plan is a nice plan for this irregular shaped lot.
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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
The Chairman then asked if the Secretary had any additional communications either for or against granting the variance.
The Secretary stated that a letter had been received from Mr. Charles Sherry, Jr. of 3923 Taylor Road, Orchard Park, New York. This letter was in support of the project and was read to the members.
Chairman Orffeo made a motion, seconded by Mr. Lennartz, for CONDITIONAL APPROVAL to be GRANTED for the area variance request as follows:
1. The request is for a front yard setback of 30 ft., per the current site plan received 3/31/03. This approval is conditional, based on receiving a positive report from the Public Safety Committee’s review of the traffic safety.
2. The Chairman will consult with Mr. Holland and verify the findings of the Public Safety Committee. If no problems have been identified the variance is granted.
3. If the Public Safety Committee report indicates a problem, the petitioner’s project will be placed on the Zoning Board of Appeals July 15th agenda and reviewed further.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
CHIMES AYE
HOLMWOOD AYE
LENNARTZ AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION FOR CONDITIONAL APPROVAL IS HEREBY PASSED.
2. ZBA File #8-03, Lowe’s Companies, Inc. by Jerry A. Goldman, 3195 Southwestern Blvd., (Part of Farm Lot 459, Township 10, Range 7; SBL#152.16-7-1), Zoned B-2. Requests an area variance to alter front
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yard parking to re-develop the site for a home improvement center. Parking is prohibited in the front yard in a B-2 Zone, Section 144-29(A) 4. This case was tabled at the April 15th, 2003 meeting.
APPEARANCE: Mr. Jerry A. Goldman, Attorney for Lowe’s
Mr. Brent S. Edmiston, Lowe’s Site Development
Mr. Garth Winterkorn, Costich Engineering
Mr. Dean Collins, RFD Engineer
The Chairman noted that a correspondence received from Mr. Goldman contained a factual error with regards to why their case had been tabled at the April 15th meeting. The Chairman explained to the petitioners that the case had
been tabled, initially, due to the fact that the site plan submitted to the members was not correct. Chairman Orffeo further explained that a legal notice is published and the Board requires the material presented to them for their review to be accurate. The Chairman also acknowledged that the petitioner provided the Board members with the information requested at the previous meeting.
Mr. Goldman stated that the proposed project is revised based on the comments received from the D.O.T., relative to traffic issues. The proposed curb cut on Southwestern Boulevard was reviewed by the D.O.T. and approved with modifications that Mr. Goldman explained. Mr. Goldman further noted that the information supplied to the Board included a copy of the Traffic Study, an architectural rendering of the proposed sign, a review of parking spaces and a current site plan. Mr. Goldman noted that the Conservation Board reviewed this project and granted approval for the landscape plans. In addition, the Planning Board reviewed the site plan and recommended that the Town Board grant approval, subject to Lowe’s receiving the area variance being requested.
The Chairman verified with Mr. Holland that parking spaces and the total green space is adequate for the entire plaza, as well as for Lowe’s being a separate entity. Mr. Holland noted that this is correct.
Mr. Lennartz established that an anticipated restaurant, to be located on an out parcel owned by Benderson Development, will not be under site control of Lowe’s. However, Mr. Goldman told the members a letter was submitted to the Planning Board confirming that Lowe’s will be entering into an access agreement with Benderson Development and that the submitted traffic study report considered this usage. Mr. Lennartz noted that he finds the proposed 7 ft.-5” sign to be reasonable and attractive. He asked the petitioner if he would agree to have no future adjustments be asked for with regards to having the sign larger. Mr. Goldman stated that this was agreeable to him, however, the Planning Board had asked Lowe’s to consider sharing the sign with the out parcel and Lowe’s is open to this suggestion. He further stated that an application might be made, but it would not be done for Lowe’s, as their needs are met with the proposed 7ft - 5” sign. Mr. Lennartz discussed the traffic concerns he had with Mr. Goldman. The petitioner explained how the turning lanes will extend (down to Michael
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Road) to help the traffic flow. The traffic study map was reviewed and it was determined that the turning lanes will be approximately 600 feet and accommodate approximately thirty vehicles. Mr. Lennartz noted that his concerns are satisfied.
Mr. Holmwood established that it would be possible for a motorist to be in one of the two left turning lanes, change their mind and continue to the signal to make the turn as the two-way, left turning lane will extend to the dedicated turning lane approaching the signal.
Mr. Wolf told the members that a variance is needed for the proposed monument sign. Mr. Holland stated that by the definition of a monument sign, the square foot is in excess of our ordinance. Chairman Orffeo told the petitioner that a request for a variance with regards to the proposed sign must be applied for. It was further established that the Planning Board had recommended to the Town Board that Lowe’s be given permission to have off premises sign advertising. The Lowe’s name will appear on the two Tops/Benderson Plaza signs.
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 member’s concluded their concerns that had existed with the proposed project had been addressed. The sign issue will be pursued by the applicant at a future time.
Mr. Lennartz made a motion, seconded by Mr. Holmwood, to GRANT the area variance for the following reasons:
1. There will be no undesirable change in the character of the neighbor or detriment to the nearby area.
2. The benefit for the parking cannot be created in any other way.
3. The request is not substantial.
4. There will be no adverse effect or impact on the environment or neighborhood.
5. The difficulty was not self-created.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
CHIMES AYE
HOLMWOOD AYE
JAROCHA AYE
LENNARTZ AYE
ZBA Mtg. #5 Reg. Mtg. #5 May 20, 2003 Page 7
THE VOTE ON THE MOTION BEING UNANIMOUS, THE VARIANCE IS HEREBY GRANTED.
NEW BUSINESS
1. ZBA File #9-03, John & Mary Henderson, 6640 Gartman Road, (Part of Farm Lot 10, Township 9, Range 7; SBL#198.00-1-18.1), Zoned A-1. Requests an area variance to construct an attached garage 39 feet from the front lot line. Minimum front setback in an A-1 Zone is 75 feet, Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.
APPEARANCE: Mr. & Mrs. Henderson, property owners
Mr. Henderson presented and explained his plans for a proposed attached two-car garage. Mr. Henderson told the members that the difficulty they have is that only one area exists for the addition to be located, due to the existence of a gas pipeline, septic system and the front yard containing a paved driveway.
The members agreed that there is no other location for the proposed addition.
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:
Mr. Mark Romanowski
6650 Gartman Road
Orchard Park, New York 14127
Mr. Romanowski stated he is the nearest neighbor and that he had no objections to the granting of the variance.
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.
Mrs. Chimes made a motion, seconded by Mr. Jarocha, to GRANT the area variance for the following reasons:
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1. There is no other location for the proposed project to be built, based on this property.
2. The request is not substantial and there will be no adverse effect on the environmental conditions.
3. There will be no undesirable change to the character of the neighborhood.
4. This will not create any health or safety concerns.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
CHIMES AYE
HOLMWOOD AYE
JAROCHA AYE
LENNARTZ AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE VARIANCE IS HEREBY GRANTED.
2. ZBA File #10-03, Thomas J. Whieldon, 4164 Imperial Drive, (Sub lot 66, Map Cover 2363; SBL#161.20-6-63), Zoned R-3. Requests an area variance to construct an attached garage 18.31-ft. from the side street lot line. Minimum side street setback in an R-3 lot of record is 30 feet, Section 144-9B, Schedule of Height, Lot, Yard and Bulk Regulations.
APPEARANCE: Mr. Thomas Whieldon, property owner
Mr. Whieldon presented and explained the proposed project to the members. Mr. Whiledon told the members that he desires to make his home handicapped accessible for his son. After researching the installation of a ramp, Mr. Whieldon found that constructing an attached garage would be the best solution to addressing all his needs.
The member’s questions established that the proposed plans could not be reduced or altered.
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.
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(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 felt that although this is a substantial request, he felt that the petitioner could not make a more compelling case for hardship.
Mr. Jarocha confirmed with the petitioner that he would have the addition match the existing house by using the same siding and colors.
Mr. Jarocha made a motion, seconded by Mrs. Chimes, to GRANT the area variance for the following reasons:
1. The difficulty was not self-created. The need for the addition space for the handicapped member of the family is very important.
2. The variance is substantial; however the economic impact on the applicant would be far less than forcing the applicant to make major changes to his home.
3. It has not been demonstrated that the granting of the variance will infringe on any of the neighbor’s property.
4. There will be no adverse affect on the health, safety or welfare of the area.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
CHIMES AYE
HOLMWOOD AYE
JAROCHA AYE
LENNARTZ AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE VARIANCE IS HEREBY GRANTED.
3. ZBA File #11-03, Ron Roberson, 135 Norwood Lane, (Sub Lot 24, Map Cover 2870; SBL#162.15-5-31), Zone R-1. Requests an area variance to install a 4-foot high fence in a side street yard. Maximum height of a fence in a front or side street yard is 3 feet, Section 144-22A(1).
APPEARANCE: Mr. & Mrs. Roberson, property owners
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Mr. Roberson presented and explained his plans to the members for a proposed fence. He stated that there would be no problems created with the installation of the fence relative to site, snow or future planned sidewalks. Also, the affected neighbor located to the rear of his home, has indicated to him that he has no problem with the granting of the variance.
Mr. Holmwood established that the proposed fence would be a 4’ semi-private vinyl fence. The petitioner stated that the original thought was to have a six-foot high fence installed around the perimeter of the inground pool, with another fence around the perimeter of the yard at heights of 3’ and 4’ where allowed by the Town ordinance. However, the petitioner stated that he feels that installing a single uniform height of fencing will look more attractive than installing two fences that will be uneven in height.
Mr. Lennartz asked the petitioner if the fence needed to encompass the entire yard. The petitioner described how enclosing the pool area alone would create a tremendous side yard for no reason.
Chairman Orffeo asked Mr. Holland to verify the ordinance information with regards to the height of fences located on a corner lot.
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
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 he generally is not in favor of variances for fences. However, it pleases him that the petitioner has lessened the height of the proposed fence by having it be at 4’ around the perimeter, rather than at a height of 6’ where it is allowed.
Mr. Holmwood made a motion, seconded by Mr. Lennartz, to GRANT the area variance for the following reasons:
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1. The benefit cannot be achieved in another way.
2. The request is substantial, but there will be no detriment to the neighborhood.
3. The difficulty was not self-created, although in a way it was because the petitioner bought a corner lot.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
CHIMES AYE
HOLMWOOD AYE
JAROCHA AYE
LENNARTZ AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE VARIANCE IS HEREBY GRANTED.
4. ZBA File#12-03, Joseph & Eileen Tomasello, 6180 Scherff Road, (Part of Farm Lot 2, Township 9, Range 7; SBL#198.01-1-9), Zoned A-1. Requests a use variance to construct a second single family dwelling adjacent to their existing dwelling. Maximum one dwelling unit is permitted per property in an A-1 Zone. Section 144-9A, Schedule of Use Controls.
APPEARANCE: Mr. & Mrs. James Andruczyk, petitioner’s daughter & son-in-law
Eileen Tomasello, petitioner
Steven C. Townsend, Attorney
Mr. Townsend presented and explained the proposed project to the members.
The Chairman noted that the SEQR short form will need to be completed and submitted by the petitioner.
The Board members questions established that the petitioner will be subdividing her property in order to provide a parcel that her daughter and son-in-law can build a home upon. Mr. & Mrs. Andruczyk explained to the members why they wish to locate the home at the location being proposed. The petitioners submitted letters of support from Mr. & Mrs. Harold Curnew of 6214 Scherff Road, Mr. & Mrs. Kellerman of 6195 Scherff Road and Mr. Donald Brady, Jr. of 6215 Scherff Road. These letters will be entered into the file.
Mr. Holland explained and clarified for the members that no variance is needed to create a pot handle lot.
After further discussion the members agreed that the request for the variance is self-created by the petitioner, as the proposed home could be built without a variance if it were relocated.
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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
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.
Chairman Orffeo made a motion, seconded by Mr. Lennartz, to DENY the variance being requested for the following reasons:
1. The applicants have a viable alternative to achieve their objectives without the need for a variance.
2. The parcel is large enough to create a second building lot.
3. There is no hardship in creating a second building lot and the applicants can simply move location of the house.
4. To put two houses this close together will change the character of the neighborhood and also open up the potential opportunity for creating a third house.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
CHIMES AYE
HOLMWOOD AYE
JAROCHA AYE
LENNARTZ AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE VARIANCE IS HEREBY DENIED.
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5. ZBA File #13-03, Sheila Kimble, 30 Elm Tree Road, (Sub Lots 293 – 295, Map Cover 927; SBL#172.05-3-8), Zoned R-3. Requests an area variance to construct
a wood deck 21-ft. from the rear lot line. Minimum rear setback for an existing lot of record greater than 120 ft. wide in an R-3 Zone is 30 ft., Section 144-22F.
APPEARANCE: Mrs. Sheila Kimble, property owner
Mr. Marty Tailor, contractor
Mrs. Kimble presented and explained her proposed project to the members. Mrs. Kimble submitted a letter supporting the granting of the variance from Mr. & Mrs. Schinzel of 29 Middlesex Road, noting that this neighbor is directly behind her property. This will be entered into the file.
The member’s questions established that the deck will be built on an existing concrete pad and that the petitioner has owned this home for 13 years.
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
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.
Mrs. Chimes made a motion, seconded by Mr. Holmwood, to GRANT the variance being requested for the following reasons:
1. There will be no undesirable change in the character of the neighborhood.
2. The deck cannot be placed anywhere else.
3. The request is not substantial.
4. There will be no adverse effect to the neighborhood if it is placed as submitted.
THE VOTE ON THE MOTION BEING:
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ORFFEO AYE
CHIMES AYE
HOLMWOOD AYE
JAROCHA AYE
LENNARTZ AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE VARIANCE IS HEREBY GRANTED.