ZBA Mtg. #1 Reg. Mtg. #1 January 20, 2004 Page 1
ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the January 20, 2004 meeting held at the Basement Public Meeting Room, S4295 South Buffalo Street.
MEMBERS PRESENT: Remy Orffeo, Chairman
Donald Holmwood
Robert Lennartz
Henry Jarocha
Deborah Chimes
EXCUSED: Jo Ann Litwin, Alternate
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 NOVEMBER 18, 2003 REGULAR MEETING:
A motion was made by Mrs. Chimes, seconded by Mr. Holmwood to accept the minutes of the November 18, 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, 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. #1 Reg. Mtg. #1 January 20, 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
JAROCHA AYE
LENNARTZ AYE
The Chairman stated that Zoning Board member Hank Jarocha had been appointed Deputy Chairman in the event the Chairman was absent.
NEW BUSINESS
1. ZBA File #1-04, David P. Paschke, Vacant Land across road from 3730 California Road to abandoned Webster Road, Zoned I-1 (Part of Farm Lot 29, Township 10, Range 7; SBL#’s 161.09-5-1 & 161.05-4-17). Requests a variance to provide parking in the front yard of proposed building. Parking is prohibited in the front yard in an I-1 Zone, Section 144-29(a)4. Note: This variance request was previously granted (ZBA File #33-94) but has expired per Section 144.63D(2)(d).
APPEARANCE: Mr. David Paschke, property owner
The Chairman noted that this case had been previously heard by the Zoning Board of Appeals on 7/19/94 (case file #33-94) and that the applicant appeared again before the Board on 6/20/95 to request an extension of the variance that had been granted. This extension has expired and Mr. Paschke is seeking another extension. Mr. Paschke is proposing to construct two office buildings on an irregular shaped parcel that has constraints related to the location of the buildings due to a utility easement.
The members reviewed the plans presented and discussed with the petitioner the length of time that will be needed for the variance to be extended. Mr. Paschke told the members that he did not anticipate starting construction until late spring, or early summer. Attorney Michael Wolf explained that before a building permit could be issued Mr. Paschke would need to pursue the process of a site plan review with the Planning Board.
The Chairman established that there are eight (8) partial parking spaces and one (1) full parking space located in the front yard. The number of proposed parking spaces comply with the code.
Mr. Jarocha discussed and verified with the applicant that the number of proposed parking spaces exceed the requirement. Mr. Paschke stated that the parking spaces are essential to the proposed project. He told the
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members that it is difficult to rent space to a tenant if the parking is not available at the location of the rental.
Mr. Holmwood 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
JAROCHA AYE
LENNARTZ AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, A NEGATIVE DECLARATION IS MADE UNDER SEQR.
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.
Mr. Lennartz stated that the Board should consider approval with additional time extended to the petitioner in order for him to be able to complete the site plan review process and obtain permission for a building permit.
Mr. Jarocha clarified his previous comments on parking spaces. He noted that the spaces are very important to a potential tenant.
Mr. Lennartz made a motion, seconded by Mrs. Chimes, to GRANT the variance request for the following reasons:
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1. Strict application of the regulations would deprive the applicant of the full economic benefit from the use of the property.
2. The hardship is unique; with regards to the layout of the land and the utility easement.
3. There will be no major change to the character of the neighborhood.
4. The hardship was not self-created.
This variance is granted with the following stipulation:
1. The building permit must be issued by September 30, 2004 or the variance expires on October 1, 2004.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
CHIMES AYE
HOLMWOOD AYE
JAROCHA AYE
LENNARTZ AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE AREA VARIANCE IS HEREBY GRANTED WITH A STIPULATION.
2. ZBA File #2-04, M. Paula & Leigh Nevinger, 7224 Michael Road, Zoned R-2 (Part of Farm Lot 407, Township 10, Range 7; SBL#153.11-1-1). Requests an area variance to continue constructing a family room addition 8 ft.-10 inches from an accessory building. No accessory structure shall be located closer than 10 feet to any primary structure, Section 144-24A(1)(c).
APPEARANCE: Mr. Leigh Nevinger, property owner
Mr. Jeff Haenel, Deegee Construction
The applicant told the members that the required permit had been obtained for the proposed project. It was further explained how an error had been discovered and a correction was not made to the plans. Subsequently, the foundation was constructed based on the uncorrected paperwork.
Mr. Jarocha verified with the applicant that the foundation and floor had been constructed according to the plans. When the error was discovered construction was ceased.
Chairman Orffeo cautioned Mr. Haenel regarding the error and stated that the Board is generally sympathetic to first time offenders. He noted that if
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this firm appeared before the Board again that they might not believe it was an accident.
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.
Mr. Jarocha stated that he believes that this was an honest mistake. He agrees with the Chairman, regarding allowing a first time mistake. A second time would not be favorably looked upon.
Mr. Lennartz noted that there was a show of good faith when the work was ceased and the fact that the applicant came before the Board.
The Chairman made a motion, seconded by Mr. Lennartz, to GRANT the request for the area variance for the following reasons:
1. The situation was self-created, however the applicant showed good faith in ceasing the work and waiting for resolution before the Board.
2. There will be no effect on the character of the neighborhood.
3. Denying the variance might created financial harm to the applicant.
4. The request is not substantial and there is no need to impose this financial harm on the applicant.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
CHIMES AYE
HOLMWOOD AYE
JAROCHA AYE
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LENNARTZ AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE AREA VARIANCE IS
HEREBY GRANTED.
Chairman, Remy C. Orffeo adjourned the meeting at 8:04 p.m.
DATED: January 30, 2004 Respectfully submitted,
REVIEWED February 5, 2004 Rose Seivert, Secretary
Zoning Board of Appeals
Remy C. Orffeo, Chairman