CORRECTED MINUTES
ZBA Mtg. #12 Reg. Mtg. #12 December 21, 2004 Page 1
ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the December 21, 2004 meeting held in the Basement Public Meeting Room, S4295 South Buffalo Street.
MEMBERS PRESENT: Remy Orffeo, Chairman
Donald Holmwood
Robert Lennartz
Joseph Liberti
Jo Ann Litwin
Mark Dietriek, Alternate
OTHERS PRESENT: David Holland, 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 7:30 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 NOVEMBER 16, 2004 REGULAR MEETING:
Upon a motion duly made and seconded, the reading of the minutes of the November 16, 2004 Zoning Board meeting was unanimously waived as each Board Member had previously received a copy.
THE VOTE ON THE RESOLUTION BEING UNANIMOUS, THE RESOLUTION WAS DULY ADOPTED.
Mr. Holmwood noted the following correction to the November 16, 2004 minutes: Page 9, Ms. Litwin was not present at this meeting, therefore, eliminate Ms. Litwin’s name from casting a vote and insert Mr. Holmwood’s name, who was present.
Mr. Holmwood made a MOTION, seconded by Mr. Liberti, to ACCEPT the November 16, 2004 minutes as corrected.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
HOLMWOOD AYE
LENNARTZ AYE
LIBERTI AYE
LITWIN AYE
The Chairman stated that all persons making an appeal before this Board would
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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.
The Chairman stated that site inspections of all cases presented tonight were made by:
ORFFEO AYE
DIETRIEK AYE
HOLMWOOD AYE
LENNARTZ AYE
LIBERTI AYE
LITWIN AYE
1. ZBA File #46-04, Anthony Turton, 3475 Abbott Road, Zoned B-2 (Part of Farm Lot 31, Township 10, Range 7; SBL#152.17-1-7). This case was heard and voted on at the November 16, 2004 meeting. It is returning to the Zoning Board of Appeals for a SEQR determination.
Mr. Lennartz 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
LENNARTZ AYE
LIBERTI AYE
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, A NEGATIVE DECLARATION IS MADE UNDER SEQR.
NEW BUSINESS
1. ZBA File #50-04, Agnes C. Plunkett, 9 Chase Road, Zoned R-1 (Sub Lot 36, Map Cover 1895; SBL#174.17-1-2). Requests an area variance to construct a detached garage with a side setback of 5 ft. Required side yard for this R-1 Lot of record is 15 ft., Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations. Note: On 9/21/04 a variance was granted for a 7 ft. side setback (ZBA File #39-04).
ZBA Mtg. #12 Reg. Mtg. #12 December 21, 2004 Page 3
APPEARANCE: Ms. Agnes Plunkett, property owner
Ms. Plunkett explained to the members that the survey that had been presented and used during her initial variance request had contained an error. The location of the existing driveway was not correct. She told the Board that if the proposed garage is constructed with the 7-ft. side setback variance as granted, it would be located within the existing driveway. She is requesting the variance be revised to a 5-ft. side setback.
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 received any additional communications either for or against granting the variance.
The Secretary stated no communications have been received.
The Board members concluded that this is a minor change.
Mr. Holmwood made a MOTION, seconded by Ms. Litwin, to GRANT the variance request for a 5 ft. side setback the following reasons:
1. There will be no problem with the area, as found with the previous approval.
2. The previous stipulations are to remain.
Note: the 9/21/04 motion and stipulations were as follows:
1. There will be no undesirable change in the character of the neighborhood.
2. The benefit sought cannot be achieved in another way.
3. The request is not substantial. The garage is not to exceed the size of a 1-1/2-car garage.
4. There will be no adverse effect on the environmental conditions of the neighborhood.
5. The difficulty was not self-created.
This variance is granted with the following stipulations:
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1. The trees shall be maintained as a site barrier to hide the 1-1/2 car garage from Chase Road.
2. Any trees that cease to exist must be replaced with the same species and be 4 to 6 feet in height.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
HOLMWOOD AYE
LENNARTZ AYE
LIBERTI AYE
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED.
2. ZBA File #51-04, John & Mary Henderson, 6640 Gartman Road, Zoned A-1 (Part of Farm Lot 10, Township 9, Range 7; SBL#198.00-1-18.1). Requests an area variance to construct a detached garage in a front yard. No accessory structures shall be located within the front yard, Section 144-24A(1)(B). Note: On 5/20/03 a variance was granted for an attached garage in a required front yard. This variance has expired per Section 14463D(2)(d).
APPEARANCE: Mr. Henderson, property owner
Mr. Henderson presented and explained the plans for a proposed detached garage. He told the Board that the accuracy of the current survey of the property is being questioned. In order to accommodate the present survey and a possible corrected survey, Mr. Henderson is proposing that a 30-foot variance be granted to accommodate his plans for the proposed garage. Mr. Henderson explained that he has discussed this situation with his nearest affected neighbor, Mr. Romanowski. They both have agreed that locating the garage 30 feet from the property line would alleviate the setback problem, no matter which survey is found to be correct. Mr. Henderson told the Board that if the variance is granted he plans to begin construction on January 16, 2005.
Ms. Litwin established that Mr. Henderson has two trucks, four cars and a motorcycle. The Chairman noted that three of the cars are not registered and that this is a violation of the code. Mr. Henderson explained that he does not have all of his vehicles registered continuously and that he plans to store the unregistered vehicles in the proposed garage.
The Chairman also noted that a storage shed exists in the front of Mr. Henderson’s property. Mr. Henderson stated that he had not obtained the required permit for the shed. The Chairman noted that Mr. Henderson has come
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before the Board with two existing violations of the code. He further established that after having been granted the initial variance, a family tragedy prevented Mr. Henderson from applying for a building permit.
Mr. Lennartz established with Mr. Henderson that a business would not be operated out of the proposed garage.
Mr. Dietriek established that a utility pipeline interferes with locating the garage at the back of the property.
The Board members agreed that when reviewing a case, they prefer to have an accurate survey presented to them.
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.
AGAINST:
Mr. Mark Romanowski
6650 Gartman Road
Orchard Park, NY 14127
Mr. Romanowski acknowledged that he had sent the Board documents explaining his opposition to the variance request. Since that time, most of his concerns have been resolved through dialogue with Mr. Henderson. He is willing to accept the 30-foot setback allowance based on the existing survey. After questioning by the Chairman, it was established that Mr. Romanowski also had a shed on his property that was built without a permit.
The Chairman then asked if the Secretary had received any additional communications either for or against granting the variance.
The Secretary stated no communications have been received.
Mr. Lennartz commented regarding the two neighbors coming to an agreement and saw no reason not to support the request. However, he would like the property to be brought into compliance with regards to the reported code violations.
Mr. Lennartz made a MOTION, seconded by Ms. Litwin, to APPROVE the area variance request for the following reasons:
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1. We accept the applicant’s survey of the property presented. The setback will be 30 feet from the property line.
2. The storage shed located in the front yard is to be either moved or destroyed. If moved, it must be located in a conforming location. The storage shed removal or relocation must be resolved by June 30, 2005.
3. The proposed garage can only be used for personal use and not for a business use.
4. There will be no adverse effect on the environment or the neighborhood.
5. The property must be brought into compliance with all applicable zoning laws by June 30, 2005.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
HOLMWOOD AYE
LENNARTZ AYE
LIBERTI AYE
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED.
6. ZBA File #52-04, John Krouse & Boston Valley Terra Cotta, 6860 S. Abbott Road Zoned A-1 (Part of Farm Lot 25, Township 9, Range 7; SBL#197.00-1-17.122). Requesting 3 variances. First, to extend a non-conforming use for an addition to an existing structure. A non-conforming use may not be extended except within the same building, Section 144-60. Second, to exceed 10% maximum lot coverage, Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations. Third, to construct this addition with a rear setback of 17.7 ft. No setback, if already less than the minimum required, shall be further reduced, Section 144-14.
APPEARANCE: Tim Gawenus, William Schutt & Associates
John Krouse, President
Mr. Gawenus presented and explained plans for the proposed Phase 3 expansion of Boston Valley Terra Cotta. Plans include the construction of an addition to be used for a glazing facility, a loading dock, a new road for safety access, a 5,400-sq. ft. office building and a new parking area. Two existing structures will be demolished. He further noted that the Planning Board had reviewed the proposed expansion plans at their December 8, 2004 meeting. In addition, the County has granted approval for a new septic system and all Engineering and Fire Inspector issues have been resolved. The project would employee approximately an additional 16 - 20 people.
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The first request is to extend a non-conforming use for an addition to an existing structure. This area is zoned agricultural and has had previous use variances granted. Second, the 10% lot coverage will be exceeded with the planned expansion. Mr. Gawenus stated that the cost of the expansion would exceed three million dollars. Third, to seek a rear setback of 17.7 ft.
The Chairman noted that in the past, the petitioner has come before the Board to request variances because a practical difficulty exists with the business being located close to the road. He further noted that the Planning Board found no problems with the proposal.
The Board discussion concluded with positive comments regarding this proposal, noting that Boston Valley Terra Cotta is a valuable asset to the Town of Orchard Park.
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 received any additional communications either for or against granting the variance.
The Secretary stated no communications have been received.
Ms. Litwin 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
LENNARTZ AYE
LIBERTI AYE
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, A NEGATIVE DECLARATION IS MADE UNDER SEQR.
ZBA Mtg. #12 Reg. Mtg. #12 December 21, 2004 Page 8
The Chairman made a MOTION, seconded by Mr. Holmwood, to APPROVE the request for three (3) variances for the following reasons:
1. There will be no undesirable change in the character of the neighborhood.
2. The applicant has a practical difficulty as the building was constructed before the Zoning Code was instituted. The building was built close to the road and everything the applicant desires to accomplish needs to go before this Board for a variance.
3. The applicant has been a good corporate citizen and has lived up to all commitments made to the Planning Board and the Zoning Board of Appeals in the past.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
HOLMWOOD AYE
LENNARTZ AYE
LIBERTI AYE
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED.
7. ZBA File #53-04, Andrew Spencer & Young Riedman LLC, 100 Hammocks Drive, Zoned R-3 (Part of Farm Lot 17, Township 10, Range 7; SBL#152.16-7-4). Requests a variance to install two (2) dwelling group identification signs along the corner of Orchard Park Road and the access drive to “The Hammocks”. One (1) sign may identify a dwelling group complex, Section 144-37B(1).
APPEARANCE: Mr. Andrew Spencer, BME Associates
Mr. Spencer presented information to the Board proposing to erect two signs at the entranceway to the Hammocks. He told the members that he had appeared before the Planning Board informally and received their input regarding the proposed signs. He told the Board that at the Planning Board November 9, 2004 meeting the members expressed positive feelings for the two proposed signs. He also noted that the design of the proposed signs is in compliance with the sign ordinance.
Mr. Lennartz 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
ZBA Mtg. #12 Reg. Mtg. #12 December 21, 2004 Page 9
HOLMWOOD AYE
LENNARTZ AYE
LIBERTI AYE
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, A NEGATIVE DECLARATION IS MADE UNDER SEQR.
Mr. Lennartz stated that he is familiar with this location and he does not believe two signs are necessary. A traffic signal is present that stops traffic and he believes that this, in combination with a single sign, would be sufficient.
Mr. Spencer explained that confusion exists at the location by having a commercial property sharing the access drive with the adjacent R3 property. The initial sign seen is the commercial sign. Mr. Spencer noted that his client has put effort and money into the project to make the Hammocks a desirable location to live and would like an equally desirable entranceway.
Mr. Spencer believes that the proposed signs compliment the existing residential character that the Planning Board members had indicated they desired for this area. He further stated that upon entering the parcel it might be difficult for an individual to distinguish between where the Hammocks of Orchard Park is in relationship to the commercial area. Mr. Lennartz stated that he feels differently. He finds that it is fairly straightforward and no confusion exists between the commercial and residential areas.
Mr. Holmwood stated that he agrees with Mr. Lennartz, and feels that one sign would be sufficient.
Ms. Litwin stated that she could see the need for two signs, but believes that one of the signs could be moved and redesigned, perhaps on a curve and slanted. Mr. Spencer noted that this would require a variance as well.
The Chairman noted that individuals living here would not need a sign to let them know where they live. Mr. Spencer stated that this was true. However, he believes the northbound traffic has difficulty locating the Hammocks. The Chairman discussed the visibility of the signs for the northbound traffic. Mr. Spencer told the Board that the signs would be seen first and not the complex. He further established that the signs would be illuminated. An alternative proposal that had been presented to the Planning Board that involved having a clock tower was discussed.
The Chairman asked Mr. Spencer if he agreed that the request in Part A was a substantial request and Mr. Spencer stated he agreed. He also agreed that the difficulty was self-created.
The Chairman then asked if there was anyone in the audience who would wish to speak in favor of granting the variance.
ZBA Mtg. #12 Reg. Mtg. #12 December 21, 2004 Page 10
(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 received any additional communications either for or against granting the variance.
The Secretary stated no communications have been received.
The members’ discussion concluded with Mr. Lennartz stating that he does not agree with the site requiring two signs based on the current visibility of the site. Ms. Litwin stated that she would like the Board to confer with the Planning Board regarding this matter and that she would like to have the request tabled. The Chairman stated that this Board works closely with the Planning Board and that he would like to meet with the Planning Board Chairman to discuss this request. The alternative, without the Planning Board input, is to vote. Mr. Spencer stated that he would wait for the Zoning Board to confer with the Planning Board.
Ms. Litwin made a MOTION, seconded by Mr. Lennartz, to TABLE this item until the Chairman has met with the Planning Board regarding this request.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
HOLMWOOD AYE
LENNARTZ AYE
LIBERTI AYE
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE CASE IS TABLED UNTIL THE JANUARY 2005 MEETING.
8. ZBA File #54-04, Mark Regoord, 6877 Scherff Road, Zoned A-1 (Part of Farm Lot 1, Township 9, Range 7; SBL#198.03-1-5.12). Requests a variance to create a lot with a width of 100 ft. and a second variance to create a side setback of 25 ft. Newly created lot width in an A-1 Zone is minimum 160 ft. Side setback requirements for a newly created lot in an A-1 Zone are 30’/80’, Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.
APPEARANCE: Mr. Mark Regoord, property owner
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Mr. Regoord told the members that he is relocating and that the sale of his property is contingent upon being able to divide the property, which consists of 31.5 acres, into two separate lots. The potential buyer, Mr. Tell, would like to live in the existing home while constructing a single family home for himself on the newly created lot. Mr. Regoord stated that he understands that Mr. Tell intends to sell the existing house when he no longer needs it. He further explained to the members that at one time this property existed as two separate parcels, and that at some point the two parcels were combined. Mr. Regoord explained that 160-feet of frontage exists with the two proposed lots combined. He would like to have access to the rear lot by leaving a 60-ft. entrance. He also discussed preserving the tree line at the site.
The Chairman stated that a petition had been submitted by 22 neighbors, stating that they are in opposition to the variance requests. This signed petition has been entered into the permanent file. Mr. Regoord acknowledged that his neighbors were present in the audience. He told the Board that he had discussed the proposal with his neighbors and that he believes he has addressed their concerns.
The Chairman recognized Mr. Robert Tell, of 6535 Ward Road, Orchard Park. Mr. Tell verified that he would be constructing a single family home for himself and that he had no intention of developing a subdivision.
The Board’s questions established that further development of the property is not planned. It was noted that sixty feet is required to establish a road into a subdivision. Mr. Regoord and Mr. Tell told the members that it was not their intention to have the property developed as a subdivision, even though that opportunity has existed all along. Building Inspector David Holland confirmed that a subdivision could be proposed without seeking variances by simply demolishing the existing home. He confirmed that a petitioner would be required to appear before the Planning Board for review and approval of a proposed subdivision.
The Chairman noted that a correspondence was received, just prior to the meeting, from Town Engineer, Wayne Bieler regarding this appeal. He further noted that the Board did not have the opportunity to review it. This correspondence will be entered into the permanent file.
The Chairman discussed Mr. Bieler’s correspondence noting that Mr. Bieler feels that the case before the Zoning Board is a planning issue and that it should have been directed to the Planning Board. However, the Chairman conferred with Mr. Holland and concluded that it is the Zoning Board’s prerogative to determine if a request will change the character of a neighborhood and that this is not a Planning Board issue.
The Chairman confirmed with Mr. Tell that as of this date, he has not determined the location of his proposed home. He further confirmed that Mr. Tell has no intention of constructing a road for a subdivision. The access is to gain ingress to his proposed home.
ZBA Mtg. #12 Reg. Mtg. #12 December 21, 2004 Page 12
The Chairman then asked if there was anyone in the audience who would wish to speak in favor of granting the variance.
IN FAVOR:
Michael, real estate agent
East Aurora, New York 14052
Michael stated that he is a real estate agent involved with the sale of the property and he supports the variance requests. He noted that Mr. Tell has been looking for a property with a large lot.
The Chairman then asked if there was anyone in the audience who would wish to speak against the granting of the variance.
AGAINST:
Mr. Dan Beitz
6861 Scherff Road
Orchard Park, NY 14127
Mr. Beitz stated that he has concerns with the drainage of the area. He further stated that he would like one home constructed and not a subdivison.
Mr. Ken Martin
8663 Fairview Terrace
Colden, NY 14033
Mr. Martin told the members that he has vacant land in that area. He is opposed to developing a subdivision and expressed his concerns regarding drainage problems. He also feels a negative impact will result in the area if a subdivision is built. He supports the building of one home.
Mrs. Janet Chilelli
7300 Ward Road
Orchard Park, NY 14127
Mrs. Chilelli discussed drainage concerns. She stated that she does not want the applicant to be allowed to have 60 feet to access the back property. The 60 feet can give way to having a subdivision.
Mr. Richard Gasiewicz
7120 Ward Road
Orchard Park, NY 14127
Mr. Gasiewicz told the members that he could support one home being constructed.
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Mr. Bruce Wellington
6851 Scherff Road
Orchard Park, NY 14127
Mr. Wellington stated that the consensus of the neighbors is that one home would be fine. The drainage concerns expressed would be addressed during the building phase. However, the 60-foot road opens the potential to having a subdivision and he does not support this. He would like a way to guarantee that only one home would be built.
Mr. Dick Krentz
6860 Cole Road
Orchard Park, NY 14127
Mr. Krentz is concerned with the 60 feet that is being requested. He understands that the intention is to preserve the two rows of trees. He would support the request, providing it is stipulated that only one home can be constructed.
Unknown resident
Scherff Road
Orchard Park, NY 14127
This resident spoke against the variance and presented photos of his property. He discussed the possible encroachment that would occur if a home were constructed on the back property.
Mr. Regoord discussed with the Board having the 60 feet access reduced to 59 feet to arrest the concerns of his neighbors that no public road would be built for a subdivision. In this way he could also preserve the tree line. The Chairman stated that the Board could stipulate that only one (1) single family home could be built on the back lot. He further stated that the drainage concerns expressed by the neighbors are an Engineering Department issue.
Attorney Michael Wolf noted that a stipulation to have one single family home built on this property could be filed with the County Clerk’s Office. In this way, a subsequent buyer would know of the stipulation placed on this property.
Mr. Lennartz complimented the applicant for reducing the access by one foot and for agreeing to have a “cloud” on the title of the property to ensure that only one home would be built there.
The Chairman noted that he generally does not support pot handle lots. However, in this instance a stipulation will be added to the deed to eliminate an owner from further developing the property.
Ms. Litwin made a MOTION, seconded by Mr. Lennartz, to GRANT the request for the variances with the following stipulations:
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1. The frontage of one lot is to be 59 feet. The other is 101 feet.
2. The newly created lot is to have only one single family home constructed upon it. A deed restriction is to be filed with the County Clerk so that the property will not be further subdivided and it should be made clear that the property is not to have a subdivision built here.
3. The hardship was not self-created.
4. The benefit cannot be achieved in another way.
5. There will be no adverse affect on the neighborhood with the building of one house.
6. The variance will not take affect until proof is made available to the Building Inspector’s Office that an affidavit has been filed with the County Clerk’s Office referencing the large rear parcel, and that a variance was granted with a stipulation that only one single family home could be constructed.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
HOLMWOOD AYE
LENNARTZ AYE
LIBERTI AYE
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED.
Chairman Remy C. Orffeo adjourned the meeting at 9:35 p.m.