ZBA Mtg. #2 Reg. Mtg. #2 February 17, 2004 Page 1
ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the February 17, 2004 meeting held at the Basement Public Meeting Room, S4295 South Buffalo Street.
MEMBERS PRESENT: Remy Orffeo, Chairman
Donald Holmwood
Robert Lennartz
Deborah Chimes
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 members recited the Pledge of Allegiance and the Chairman called the meeting to order at 7:34 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 JANUARY 20, 2004 REGULAR MEETING:
A motion was made by Mrs. Chimes, seconded by Mr. Holmwood to accept the minutes of the January 20, 2004, 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, 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
ZBA Mtg. #2 Reg. Mtg. #2 February 17, 2004 Page 2
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
CHIMES AYE
HOLMWOOD AYE
LENNARTZ AYE
LITWIN AYE
NEW BUSINESS
1. ZBA File #3-04, Ron & Vivian Flintjer, 3752 N. Buffalo Road, Zoned B-3 (Part of Farm Lot 16, Township 9, Range 7; SBL#162.09-1-5). Requests a use variance to continue to allow a residence in the same building with upholstery shop. Uses permitted in R-Districts shall not be permitted on the same lot with uses permitted in B-Districts, Section 144-20D. Note: This variance was last granted on January 19, 1999 for a five-year period. ZBA File #1-99.
APPEARANCE: Mr. & Mrs. Flintjer, property owners
The applicants explained to the members the history that evolved since the 1987 granting of a temporary variance that gave them dual use for their property (business and residence). Mr. Flintjer told the members that they have decided to sell their property and desire to have the variance to be made permanent. Mr. Flintjer told the members that by ensuring the dual use the property is more desirable. Mrs. Flintjer told the members that other locations have dual use in the nearby area and she does not feel the character of the neighborhood would be affected if the variance was made permanent. Assistant Building Inspector David Holland explained that the locations Mrs. Flintjer mentioned were “grandfathered-in”.
The Chairman read a correspondence from Esther Hofmeister, an Associate Broker with M.J. Peterson, dated 1/13/04. Ms. Hofmeister explained that having a temporary variance was creating a hardship for the applicants.
The Board members discussed the intent of the original variance. The Chairman established with the petitioners, that although their intentions had been to not reside at this property on a permanent basis, it had not worked out that way. Mrs. Flintjer described how it had become convenient for their family to be located at their business.
The Chairman then asked if there was anyone in the audience who would wish to speak in favor of granting the variance.
PROPONENT:
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Mr. Anthony Juliano
7 Quaker Lake Terrace
Orchard Park, NY 14127
Mr. Juliano told the members that he is a realtor with M.J. Peterson. He told the members that he feels that not having the variance granted permanently for this property would decrease its marketability and create a financial loss for the petitioners. The Chairman discussed with Mr. Juliano the fact that the granting of the variance will not create a financial loss for the business.
Mr. Leon Zwolinski
13 Briar Hill Road
Orchard Park, NY 14127
Mr. Zwolinski explained to the members why he feels a special situation exists with this property and why a permanent variance for dual use should be granted. He told the members that he believes no change will occur to the character of the neighborhood. The Chairman noted that Mr. Zwolinski had been a previous Zoning Board of Appeals member and had initially heard this case.
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.
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.
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The members expressed their concerns with regards to granting a permanent variance for property that is under contract to be sold. Mr. Lennartz noted that he did not object to the variance, if the present owner were staying. The discussion concluded with the members desiring to protect the property, if it were sold, by stipulating that the property owner must occupy the residence. The residence is not to be rented. Attorney Michael Wolf explained to the members that the stipulation must be reasonable. Mrs. Chimes noted that the applicants had tried to market and sell the property without the variance. She also believes the property needs to be owner occupied.
The Chairman noted that the variance is self-created. He further noted that this case exemplifies reasons for the Board not to allow temporary variances to be in effect for longer than three (3) years; five (5) years was too long. In the years that this variance has been in effect, it has been documented that the variance did not create a change or impact to the character of the neighborhood.
Mr. Holmwood noted that the granting of the variance would increase the salability of the petitioner’s property by ensuring that you can operate a business and reside here. Mr. Lennartz stated that he feels it is reasonable to ask that the property be granted the variance if it is stipulated that the residence be owner occupied. Ms. Litwin (owner of Litwin Insurance) noted that, statistically, it has been shown that renters do not care about property they do not own. She further told the members that owner occupied buildings, on the average, are better taken care of.
Ms. Litwin made a motion, seconded by Mr. Holmwood, that the area variance be GRANTED for the following reasons:
1. There will be no undesirable change to the character of the neighborhood or detriment to the nearby properties in the area. It may enhance the area and bring more business into the Village.
2. The benefit sought cannot be achieved in another way.
3. The request is not substantial.
4. There will be no adverse effect or impact.
5. The difficulty was not necessarily self-created.
This variance is granted with the following stipulation:
1. The residence must be owner occupied.
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THE VOTE ON THE MOTION BEING:
ORFFEO AYE
CHIMES AYE
HOLMWOOD AYE
LENNARTZ AYE
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE VARIANCE IS HEREBY GRANTED WITH A STIPULATION.
The Chairman told the petitioners that it is their responsibility to inform the purchaser of this stipulation.
OTHER BUSINESS:
As Chairman of the Scenic By-Way Committee, Mr. Lennartz reported their progress to the Zoning Board members. He supplied information regarding the theme, vision and goals of this committee. He also gave the members an agenda from the 1/15/04 meeting, noting that the Supervisors from Orchard Park, Concord and the Town of Boston were in attendance and that these Towns fully support this effort.
Mr. Lennartz told the members that the New York State Department of Transportation is assisting him with this project. He also noted that the Adirondack region of New York State is used as a “model” for scenic by-ways. A promotional book on the Adirondacks was distributed for the members to review. Mr. Lennartz explained to the members that Route 219 needs to be marketed as the “gateway to the Southtowns” and he believes that this marketing campaign would be beneficial to our area. The amount of funding being sought by the committee is $15,000. University of Buffalo Graduate students are working with the committee in developing the project. Also, the Town Recreational Director Ed Leak is researching recreational use aspects. Mr. Lennartz noted that Mrs. Chimes is acting council for the committee.
Mr. Lennartz stated that a good relationship with the Chamber of Commerce is essential in selling this project. He further noted that it is important to preserve the unique experience that exists and we must do so, now. Mr. Lennartz is working towards having the project presented before the State Legislature to acquire the necessary funding. His goal is to have an application filed by midyear and hopefully get approval before the end of this year.
Chairman Orffeo thanked both Mr. Lennartz and Mrs. Chimes for their work in developing this project.
Chairman, Remy C. Orffeo adjourned the meeting at 8:25 p.m.
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DATED: February 24, 2004 Respectfully submitted,
REVIEWED March 8, 2004 Rose Seivert, Secretary
Zoning Board of Appeals
Remy C. Orffeo, Chairman