ZBA Mtg. #9 Reg. Mtg. #9 September 16, 2003 Page 1
ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the September 16, 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 AUGUST 19, 2003 REGULAR MEETING:
A motion was made by the Chairman, seconded by Mr. Holmwood to delay the approval of the minutes from the August 19, 2003, Zoning Board meeting until the next Zoning Board meeting, scheduled for Tuesday, October 21st.
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. #9 Reg. Mtg. #9 September 16, 2003 Page 2
ORFFEO AYE
CHIMES AYE
HOLMWOOD AYE
JAROCHA AYE
LENNARTZ AYE
LITWIN AYE
The Chairman made a motion, seconded by Mr. Lennartz to have agenda item #2 precede item #1 in the review process.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
CHIMES AYE
HOLMWOOD AYE
JAROCHA AYE
LENNARTZ AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS PASSED.
NEW BUSINESS
2. ZBA File #30-03, David J. Allen representing Orchard Park Associates, 3025 Orchard Park Road, Zoned B-2 (Part of Farm Lot 461, Township 10, Range 7; SBL#152.12-2-2.1). Requests a variance to install a 28-ft. high pedestal sign with two (2), 2 ft-8 inch support pedestals. Maximum height of a pedestal sign is 16 feet. Pedestal signs are to be supported by one (1) pedestal not exceeding 8 inches in horizontal dimension, Section 144-5B.
The Chairman noted the petitioner has requested that an additional variance be added to this request. The Chairman would like to review this case, with the additional variance request, at the October 21st Zoning Board of Appeals meeting.
Mr. Lennartz made a motion, seconded by Mrs. Chimes, to TABLE this case until the October meeting and place it under “Old Business”, item number one (1).
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
CHIMES AYE
HOLMWOOD AYE
JAROCHA AYE
LENNARTZ AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION TO TABLE IS PASSED.
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1. ZBA File #40-03, Bryan Young, 2975/2979 Angle Road, Zoned R-3 (Part of Farm Lot 402, Township 10, Range 7; SBL#153.12-1-2.1). Requests an area variance to allow a front yard setback of 36.5 feet. Required front yard setback in an R-3 Zone created after 12/89 is 40 feet, Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.
APPEARANCE: Mr. Bryan Young, property owner
Mr. Young told the members that he had constructed a duplex using the setback information that had been supplied to him by an assistant in the Building Inspector’s Office. The information supplied was not correct. It was established that Mr. Young would have complied with the code and constructed the duplex at 40 feet if he had been given the correct information.
The Chairman then asked if there was anyone in the audience who would wish to speak in favor of granting 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 Mr. Lennartz, seconded by Mrs. Chimes, to GRANT the area variance request for the following reasons:
1. A mistake had been made and the wrong information had been given to the applicant.
2. The applicant was willing to comply with the required setback at the time of construction.
3. There will be no undesirable change in the character of the neighborhood.
4. The request is not substantial.
5. The difficulty was not self created.
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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 #ZBA File #31-03, William Young, Jr., 117 Oakwood St., Zoned R-3 (Sub Lot 23, Map Cover 1541; SBL#161.17-5-7). Requests an area variance to construct an addition 2.7 feet from a side lot line. Minimum side yard setback for a 50 ft. wide lot in an R-3 Zone is 5 feet, Section 144-20A(2).
APPEARANCE: Mr. William Young, Jr., property owner
Mr. Young presented and explained his plan to the members. He told the members that his home is too small and he desires additional living space.
Mr. Jarocha confirmed that there are no alternatives available to the applicant to achieve what he desires. It was further confirmed that there would be no drainage problems created for the adjacent neighbors.
Mr. Lennartz confirmed with the petitioner that there would be gutters on the addition.
The Chairman confirmed that the proposed addition is further from the lot line than the setback of the existing house and that the proposed addition will not be encroaching onto the setback. The Chairman also noted that other houses exist in the neighborhood with accessory structures that are close to the lot line. Mr. Young told the members that most lots in the area are 50’ wide.
The Chairman then asked if there was anyone in the audience who would wish to speak in favor of granting 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
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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 instructed Mr. Holland to be sure that the proposed addition, at the time of the issuance of the building permit, is designed to have gutters.
A motion was made by Mr. Jarocha, seconded by Mr. Lennartz, to GRANT the area variance request for the following reasons:
1. There will be no change to the character of the neighborhood, given the fact that most of the nearby lots are fifty feet wide and do not provide a lot of room for expansion in any direction.
2. It would be difficult to achieve the benefit in any other way, other than what is being proposed by the applicant.
3. The request is not substantial.
4. There will be no effect environmentally or on the health and safety of the neighborhood.
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 #32-03, Joel Siegel, 3900 N. Buffalo Road, Zoned B-1 (Part of Farm Lot 16, Township 9, Range 7; SBL#161.16-1-2/A). Requests review of a variance granted on 8/15/00, to hold church services in a retail space within a B-1 Zone. This review is a stipulation of ZBA case #41-00.
APPEARANCE: Mr. Joel Siegel, applicant
The members agreed that it would not be necessary for Mr. Siegel to present his entire case, as he was appearing to renew a variance that had been previously granted to him for three years that is expiring.
Mr. Siegel presented to the members a brief update of his variance request and concluded that the church’s present location was adequately meeting their
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present needs. He further stated that a permanent site has not been investigated for the church to be relocated to.
Mr. Jarocha told Mr. Siegel that the zoning at this location does not allow this type of use. He further noted that the variance arrangement had been made temporary to allow the church to build or to find another site. He asked Mr. Siegel if a plan exists to do either. Mr. Siegel stated that the church’s growth had not been substantial and that the space at this location is suitable. He further explained to the members that pursuing another location where the zoning allows church services (residential and agricultural) could involve problems with opposition. He feels the commercial zoning laws fit well for his church services and told the members that he would like to make this arrangement permanent. He further explained that this location had previously been a “Consumer’s Beverage” store. The church invested money to improve the deteriorating conditions of this space so it could be made useable. He had not realized that the previous request had been granted with the understanding that he was being given a three year opportunity to exist at this location while he pursued other possibilities.
The Chairman then asked if there was anyone in the audience who would wish to speak in favor of granting 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.
The members agreed that the variance previously granted for three years was never meant to be permanent as the location is zoned for retail space, not church services. They discussed allowing Mr. Siegel a variance for an additional three years to provide him with the opportunity to pursue a suitable site.
A motion was made by Mr. Lennartz, seconded by Mrs. Chimes, to GRANT a three (3) year extension of the variance to use 3900 North Buffalo Road for Church services with the following understanding:
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1. This extension is being granted for a temporary use and is not a permanent variance.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
CHIMES AYE
HOLMWOOD AYE
JAROCHA AYE
LENNARTZ AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED.
2. ZBA File #33-03, Arthur M. Cooper, 31 Bender Drive, Zoned R-2 (Part of Farm Lot 16, Township 9, Range 7; SBL#161-16-2-21). Requests an area variance to construct a carport 9-ft. from a side lot line. Minimum side yard setback in an R-2 lot of record is 10 ft., Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.
APPEARANCE: Mr. Arthur M. Cooper, property owner
Mr. Cooper desires to have a covered area for his vehicle. He presented and explained his plans to utilize an existing 10’ wide concrete pad to construct a carport. He told the members that the concrete pad existed prior to his purchasing the property. He also told the members that most of the area houses have second garages, but he cannot build an attached garage due to roofline problems. Also building a carport is more affordable for him.
The Chairman then asked if there was anyone in the audience who would wish to speak in favor of granting 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.
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The Chairman stated that he lives in this neighborhood and he feels that the granting of the variance will not create a change in the character of the neighborhood.
A motion was made by Mrs. Chimes, seconded by Mr. Jarocha, to GRANT the area variance request for the following reasons:
1. There will be no detrimental effect to the neighborhood.
2. There will be no aesthetics change to the neighborhood, as verified by the Chairman.
3. The request is not substantial.
4. The concrete pad was there already.
5. The hardship was not self-imposed.
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 #35-03, Susan M. McDonnell, 110 Minden Drive, Zoned R-3 (Sub Lot 152, Map Cover 2174; SBL#152.11-4-38). Requests an area variance to construct a deck 21-ft. from the front lot line. Minimum front yard setback for an R-3 Lot of Record is 30 ft., Section 144-9B, Schedule of Height Lot, Yard & Bulk Regulations.
APPEARANCE: Ms. Susan McDonnell, property owner
Ms. McDonnell presented her plans to the members for a proposed deck. She explained how she desires to make her home aesthetically pleasing and would like to cover a deteriorating sidewalk area.
Mr. Jarocha verified with Mrs. McDonnell that if the deck were made shorter it would not be useful and that there are no plans to have the deck covered, at this present time.
The Chairman noted that the lot is small and odd shaped. There are not many options as to where to place the deck.
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Mr. Holmwood noted that the lot is on a curve and felt that produces a lot of problems.
Mr. Lennartz stated that he feels the deck will visually improve the property.
The Chairman then asked if there was anyone in the audience who would wish to speak in favor of granting 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.
The Chairman made a motion, seconded by Mr. Holmwood, to GRANT the area variance for the following reasons:
1. There will be no change to the character of the neighborhood.
2. The request is not substantial.
3. The applicant, because of the size and shape of the lot, has a hardship in locating this project in another place.
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.
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4. ZBA File #36-03, Jim Ball, 100 Hart Place, Zoned R-2 (Part of Farm Lot 19, Township 10, Range 7; SBL#152.20-1-4). Requests two (2) use variances. First, to operate a business office from a residential one family dwelling. Business offices are not a permitted use in an R-2 Zone, Section 144-9A Schedule of Use Controls. Second, to allow inventory storage on rear lot. Outdoor storage prohibited, Section 134-5B.
APPEARANCE: Mr. Mike Hall, applicant’s representative
Mr. Hall presented the proposed project to the members stating that Mr. Ball owns a residential property at 100 Hart Place, which is currently unoccupied. Mr. Hall explained that Mr. Ball desires to use the residence as a business office to help relieve the over crowded conditions at his Business Development Department. Mr. Hall stated that there would be no changes to the outside of the building, other than making the facility handicapped accessible. Mr. Hall stated that the second variance being requested is to allow inventory storage at the back of the home.
Mr. Lennartz asked if any front yard parking would occur. Mr. Hall stated that there are no plans to have front yard parking. However, a driveway presently exists in the front that could be used by the employees working there. Mr. Hall noted that if the Board stipulated that employees were not to park here, Mr. Ball would comply. The current number of workers employed is five. Mr. Hall stated that he does not believe this number would expand beyond seven. Mr. Lennartz confirmed that the office staff would come into the home and that the home’s same visual character would be maintained from the street. The staff would operate phones and computers. No customers would physically be at the proposed office. The vehicle storage being requested at the rear of the residence was discussed. Mr. Hall told the members that this request was not a necessity and that the main desire is to have use of the residence for the Business Development office staff.
Mr. Holmwood confirmed with Mr. Hall that approximately 700 square feet of the existing home would be used as office space. The inventory storage request was discussed. Mr. Hall stated that 10 to 15 parking spaces could exist at the rear of the home on a black top surface. He further stated that efforts would be made to maintain a green space area and the natural existing buffer. Mr. Hall told the members that Mr. Ball would follow recommendations made by the Board.
Mrs. Chimes confirmed that Mr. Ball has operated his business at the location across the street for seven years and at the commercial truck building, adjacent to this residential property, for approximately three years. Mr. Hall stated that no additional opportunity exists to make renovations in an effort to help alleviate the crowded office situation. However, at a future time, with expansion in mind, other property on Southwestern Boulevard or across the street may be purchased if it were available.
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Mr. Jarocha confirmed with Mr. Hall the following: that the character of the house would not change, five to seven people would work here and the requests to have parking in the front driveway and storage for 15 vehicles at the rear of the property were not essential. Mr. Hall also agreed that there would not be a problem with a stipulation to have the character of the home remain visually the same.
The Chairman stated he feels that if the Zoning Board of Appeals were to approve the variance requests they will have rezoned an area for a different use. He asked Mr. Hall why the request was brought to the Zoning Board of Appeals. Mr. Hall explained that, initially, the rezoning request had been made to the Planning Board, which recommended approval to the Town Board. The Town Board held a hearing for public input. Mr. Hall believes he was sent to the Zoning Board of Appeals to give the Town of Orchard Park more control over maintaining the home as a residential property through the granting of variances rather than creating a rezoning change.
The Chairman told Mr. Hall that the option still exists for the Town Board to reject Mr. Ball’s request, as the Town Board could decide not to change the district, based on the business district being “only so wide”. The Chairman noted that from his experience he sees the granting of these variances as the first of many requests for variances to come. Chairman Orffeo noted that theoretically the Zoning Board has control, but, over a period of time, through the granting of the variances they lose that control. The Town Board in its zoning has made a determination on how wide they want the business district to be on Southwestern Boulevard. The Chairman noted that he is uncomfortable changing that. He further noted that if the Town Board had heard this petition and rejected it, he believes that Mr. Ball’s next alternative would have been to come before the Zoning Board of Appeals.
The Chairman noted that he is not comfortable with the business encroaching on what was originally here as the existing residential and the apartments predate Mr. Ball. Mr. Hall noted that the thought behind his being advised by the Town Board to apply for the variances was to enable the Town to have more control ensuring the variances would be followed.
The Chairman then asked if the Secretary had any additional communications either for or against granting the variance.
The Secretary stated a letter was attached to the file from Mr. Erminio Liberatore. The Chairman read Mr. Liberatore’s letter, which was against the granting of the variance. This letter is part of the permanent file.
The Chairman then asked if there was anyone in the audience who would wish to speak in favor of granting the variance.
(Twice)
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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. Ann Nowicki
39 Hart Place
Orchard Park, NY 14127
Mrs. Nowicki stated she had moved to her home from South Buffalo to escape all the noise she is now experiencing from the Jim Ball facility. She does not want the variances granted as this will allow Mr. Ball to continue further down the road.
Mr. Alan Nowicki
39 Hart Place
Orchard Park, NY 14127
Mr. Nowicki does not mind Mr. Ball using the residence for office space. He does fear that by allowing the variances Mr. Ball will black top the entire space and the property will become a car lot. Mr. Nowicki noted that one of the requests is to store vehicles on almost ˝ of the property and to black top it.
Mr. Joseph Mayer
51 Hart Place
Orchard Park, NY 14127
Mr. Mayer described how the excessive noise and traffic is not wanted in the area.
Mr. Thomas Weber
6319 Milestrip Road
Orchard Park, NY 14127
Mr. Weber described how the noise created by the car agency is excessive. He has concerns for the future of the property if the variances were granted. He does not want any further encroachment into their neighborhood.
Mrs. Wiencek