ZBA Mtg. #7 Reg. Mtg. #7 July 20, 2004 Page 1
ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the July 20, 2004 meeting held at the Basement Public Meeting Room, S4295 South Buffalo Street.
MEMBERS PRESENT: Remy Orffeo, Chairman
Donald Holmwood
Robert Lennartz
Jo Ann Litwin, Alternate
EXCUSED: Henry Jarocha
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.
Mr. Lennartz, the Chairman of the Scenic Byway Committee, gave a brief report on the work of this committee. He told the Zoning Board of Appeals members that a press release would be issued to confirm that funding has been secured for the State University of New York at Buffalo to research Route 219 Scenic Byway status. Mr. Lennartz told the members that he feels his committee will be in a position to approach Albany with a bill in the spring of 2005 proposing to declare Scenic Byway status for Route 219. Mr. Lennartz stated that the committee members have worked with great diligence. He thanked the Zoning Board members, Town of Orchard Park Supervisor Cudney, Town of Concord Supervisor Steffan, Town of Boston Supervisor Eagan, Erie County Legislator Steven McCarville, Erie County Legislator Jeanne Chase, the Economic Development Committee and the local community for the support given for this project. He stated that this support has been the key to the committee’s success. Mr. Lennartz also thanked the “Southtowns Citizen” for the positive support the project has received in their publication.
APPROVAL OF THE MINUTES OF THE MAY 18, 2004 AND JUNE 15, 2004 REGULAR MEETINGS:
Mr. Lennartz made the following corrections to the minutes; The minutes from May 18th, 2004 Page 1 should read, “APPROVAL OF THE MINUTES OF THE APRIL 16, 2004 REGULAR MEETING”, not March 16, 2004. In the paragraph following this March 16, 2004 should be changed to read, “April 16th, 2004…”
In the minutes from June 15, 2004, page 16, ZBA File #24-04, the sentence reading “The Chairman verified that Mrs. Rosinksi would like to present her
ZBA Mtg. #7 Reg. Mtg. #7 July 20, 2004 Page 2
case…” should be corrected to read “Mrs. Pascarella would like to present her case…”.
A motion was made by Mr. Lennartz, seconded by Mr. Holmwood, to accept the minutes of the May 18, 2004 and June 15, 2004 Zoning Board meetings as corrected 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
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 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
HOLMWOOD AYE
LENNARTZ AYE
LITWIN AYE
The Chairman stated that at tonight’s meeting we do not have full Board representation. In these circumstances it will require (3) votes to approve any motion that is presented. If a vote results in a two/two tie, the motion will be defeated. As a result, we offer petitioners the following three options; 1) we can vote on the petition and the petitioner must accept the Board’s decision. 2) We can hear the case and postpone the vote until the next meeting of the Board when a full Board is present. (The absent member of the Board will review the testimony and all appropriate documents prior to the meeting.) 3) The petitioner can postpone making his presentation until the next meeting of this body.
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1. ZBA File #26-04, Mark R. Paddy, 27 Greenfield Street, Zoned R-3 (Sub Lot 55, Map Cover 875; SBL#171.08-4-13). Requests an area variance to construct a shed with a 5’ rear yard setback & 4’ sideyard setback. Minimum rear yard setback is 10’. Minimum sideyard setback is 5’, Section 144-9B, Schedule of Height, Lot, Yard & Bulk regulations.
APPEARANCE: Mr. Mark Paddy, property owner
The Chairman verified that Mr. Paddy would like to present his case and have the Board vote at tonight’s meeting.
Mr. Paddy presented and explained his plans for a proposed shed. He told the members that he desires additional storage space. Mr. Paddy stated that it would create community continuity if he located the proposed shed in the corner at the back of his property. He explained to the Board that his neighbors have sheds located on their property in a similar fashion.
Mr. Holmwood verified that the lot is 150’ deep and has 60 feet of frontage. The proposed shed is approximately 20 feet wide and will be used for miscellaneous storage.
The Chairman confirmed with Building Inspector Dave Holland that the size of the proposed shed is allowable.
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 made a motion, seconded by Ms. Litwin to GRANT the area variance for the following reasons:
1. The proposed shed will fit into the character of the neighborhood and is not detrimental to any other property.
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2. The benefit cannot be achieved in another way.
3. The request is not substantial.
4. There will be no adverse impact on the environment or neighborhood.
5. The difficulty was not self-created.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
HOLMWOOD AYE
LENNARTZ AYE
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED.
2. ZBA File #27-04, Mark & Wendy Bus, 5491 Ellicott Road, Zoned R-1 (Part of Farm Lot 4, Township 9, Range 7; SBL#185.10-3-13). Requests an area variance to construct an addition with a front yard setback of 26.5’. No setback, if already less than the minimum required, shall be further reduced, Section 144-14.
APPEARANCE:
The Chairman verified that Mr. Bus would like to present his case and have the Board vote at tonight’s meeting.
Mr. Bus presented and explained his plans to construct an addition to his home. He told the members that the location of the addition was chosen for aesthetic reasons. Mr. Bus explained to the members that the surrounding area will not be affected, noting that he is the property owner of most of the adjacent corner area.
The members’ questions established that the location was chosen for aesthetic reasons and that no disturbance of trees or the removal of trees would occur.
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.
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(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. Holmwood made a motion, seconded by Mr. Lennartz to GRANT the area variance for the following reasons:
1. There will be no undesirable change to the character of the neighborhood.
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 on the physical or environmental conditions of the neighborhood.
5. The difficulty is not self-created.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
HOLMWOOD AYE
LENNARTZ AYE
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED.
3. ZBA File #28-04 David Brummer & Orchard Park Veterinary Medical Center, 3507 & 3519 North Buffalo Road, Zoned B-3 (Part of Farm Lot 14, Township 10, Range 7; SBL#’s 161.08-2-1 & 161.08-2-21.1). Requests a use variance to operate a self-contained MRI trailer unit from this site. The permanent or temporary occupancy for any purpose of any trailer parked in any district is prohibited, Section 144-31 A(37).
APPEARANCE: Mr. David Brummer, Partner
Mr. Brian Harm, Hospital Director
The Chairman verified that Mr. Brummer would like to present his case and have the Board vote at tonight’s meeting.
The applicants presented and explained their request to operate a self-contained MRI trailer, one day a week, located at the Orchard Park Veterinary
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Medical Center. They told the members that a higher level of diagnostics will be made available by allowing the unit.
Ms. Litwin discussed with the applicants how the unit would be used. It was established that patients will be walked to the trailer from the medical facility and then back again. The trailer will be left over night, but it will not be parked at the site longer than 30 hours. The applicants indicated on the site plan where the trailer would be parked.
Mr. Holmwood noted that the 42-foot trailer will be partially obscured with trees and be parked length-wise to North Buffalo Road.
The Chairman established that the truck hauling the trailer would leave after the trailer is parked on the property. The parking of the trailer will not affect safety vehicle access to the facility or the existing parking spaces.
Mr. Holmwood established that NYSEG will install an electrical hook up to the trailer. Building Inspector Dave Holland told the members that this is not a problem.
Mr. Lennartz established with the applicants that the trailer would not become a “traveling billboard”.
The Chairman then asked if there was anyone in the audience who would wish to speak in favor of granting the variance.
Mr. Francis Mahoney
6537 Milestrip Road
Orchard Park, NY 14127
Mr. Mahoney asked the applicants to indicate on the site plan where the trailer would be kept.
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 concluded that the MRI unit would provide a benefit to the community. Ms. Litwin established that it would be the only unit of this type available in Western New York.
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The Chairman expressed several concerns that he had. He noted that a traveling billboard phenomenon is developing today. He asked if the applicants would agree not to have any more identification on the trailer than what is currently shown. He told the applicants that they would have the responsibility of making sure the operators/owners of the trailer knew of this condition. The applicants stated that they would be agreeable to this stipulation.
The Chairman also discussed having the variance amended to allow the trailer to be parked at the facility for no more than 36 continuous hours (1-1/2 days), per week. Mr. Holmwood noted that the weather might interfere with the trailer’s removal. The members agreed that having inclement weather interfering with the trailer’s removal would be understood.
The Chairman stated that he would also like a sunset provision to be included if the variance were granted. He stated that it is not known if the public will become adverse to having the trailer unit parked at the facility. Therefore, after a period of two years he would like the applicants to return to the Zoning Board of Appeals for review. At that time, the Board will examine any problems or complaints and determine if they would like to make this a permanent variance.
Mr. Holmwood made a motion, seconded by Mr. Lennartz, 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
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, A NEGATIVE DECLARATION IS MADE UNDER SEQR.
Ms. Litwin made a MOTION, seconded by Mr. Lennartz to GRANT the use variance with STIPULATIONS for the following reasons:
1. Strict application of the regulations will deprive the applicant of economic use and the community of a service.
2. The hardship is unique, and does not apply to a substantial portion of the district or neighborhood. The applicant could not afford the equipment.
3. The variance will not alter the essential character of the neighborhood.
4. The alleged hardship is not self-created.
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The variance is granted with the following stipulations:
1. A sunset clause is attached to this variance, making its approval for a
period of two years. At the end of two years the applicant must appear before the Board for further review.
2. The trailer may not contain any more signage than what has been currently shown on the vehicle at this meeting to the Board. The trailer may remain parked on the property for 36 continuous hours, 1-1/2 days per week.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
HOLMWOOD AYE
LENNARTZ AYE
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED WITH STIPULATIONS.
4. ZBA File #29-04, William Baker, 22 South Lane, Zoned R-1 (Sub Lot 32, Map
Cover 1811; SBL#173.17-3-41). Requests an area variance to construct an attached deck with a side yard setback of 13.4’. No setback, if already less than the minimum required, shall be further reduced, Section 144-14.
APPEARANCE: Mr. & Mrs. William Baker, property owners
Mrs. Baker presented and explained the plans for a proposed attached deck. She told the members that their home is located on a corner lot and that the location proposed for the deck is the only level area available. She also stated that the deck will not be enclosed and that it will be used to gain access to an existing door of the home.
The Chairman noted that the deck had been started without applying for a building permit. Mrs. Baker apologized to the Board, noting that she had not known that a permit was needed until they had received the cease and desist notice.
The Chairman then asked if there was anyone in the audience who would wish to speak in favor of granting the variance.
IN FAVOR:
Mr. Robert Nickels
16 South Lane
Orchard Park, NY 14127
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Mr. Nickels stated that he is the immediate neighbor and he favors the variance being sought by the Bakers. He described the difficulty that existed at this property. He stated that by allowing the proposed deck to be built the property will be enhanced and the applicants will be able to exit and enter their home from an existing door, that has not been useable.
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 noted that she feels that providing another egress from the building is a positive action.
Mr. Lennartz made a motion, seconded by Ms. Litwin to GRANT the area variance for the following reasons:
1. There will be no undesirable change to the character of the neighborhood.
2. The benefit sought cannot be achieved in another way.
3. The request is not substantial.
4. A positive effect on the neighborhood will be created with the view and the use of the property.
5. The difficulty was not self-created.
6. There is a practical difficulty with this being a corner lot.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
HOLMWOOD AYE
LENNARTZ AYE
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED.
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5. ZBA File #30-04, Holly & Nelson Tedesco, 5403 Armor Duells Road, Zoned R-2 (Part of Farm Lot 29, Township 9, Range 7; SBL#184.00-2-2.212). Requests an area variance to allow a covered front porch with a 43.17’ front yard setback. Required front setback is 50’, Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.
APPEARANCE: Mr. & Mrs. Tedesco, property owners
Mr. Kenneth Farrell, Esquire
Mr. Farrell presented the Tedesco’s house plans and explained how an error in adjusting the placement of their home had occurred. This error has created the need for an area variance to allow a covered front porch to remain with a 43.17’ front yard setback. Mr. Farrell told the members that the remaining portion of the house complies with all setback requirements. Mr. Farrell told the members that he does not believe that the porch area located at the front of the residence will create a change to the character of the neighborhood or be a detriment.
The Chairman verified that Thomas Welsh, of “TJW Custom Homes”, 259 Main Street, East Aurora, New York built this home. He instructed Building Inspector Dave Holland to send a correspondence to Mr. Welsh advising him to contact the Building Inspector’s office in the future before he starts a project in the Town of Orchard Park. In this way Mr. Welsh will be aware of the code requirements that exist. It was further established that the neighbor at the front of the property did not have an objection to the variance request. Mr. Tedesco noted that he has made quite an improvement to the lot.
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 members’ discussion concluded that this had been an honest mistake.
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Mr. Lennartz made a motion, seconded by Ms. Litwin, to GRANT the area variance for the following reasons:
1. There will be no undesirable change to the character of the neighborhood.
2. The benefit cannot be achieved in another way.
3. The request is not substantial.
4. There will be no detriment to nearby properties.
5. The difficulty is self-created, but it does not preclude the granting of the variance.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
HOLMWOOD AYE
LENNARTZ AYE
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED.
6. ZBA File #31-04, Doreen Justinger representing Bryant & Stratton College, 200 Redtail, Zoned I-1 (Part of Farm Lot 24, Township 10, Range 7; SBL#152.18-2-1). Requests an area variance to install a freestanding sign with a display surface of 31.5 square feet. Maximum sign area per display surface is not to exceed 20 square feet, Section 144-38B(2).
APPEARANCE: Doreen Justinger, Vice President, Bryant & Stratton College
Steve Carmina, Architect
Mr. Carmina presented plans for a freestanding sign and told the members that based on a sign visibility study that had been performed, the request has been amended to 28.125 sq. ft. He supplied the members with information on the sign and explained why the proposed sign had been chosen.
The members’ questions established that the sign support pillars match the campus building. It was also established that the sign will be single sided and be positioned at an angle facing Milestrip Road, to be seen by the existing traffic on Milestrip Road and Route 219. There will be external spotlights with a timer to illuminate the sign.
The Chairman then asked if there was anyone in the audience who would wish to speak in favor of granting the variance.
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(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. Holmwood made a motion, seconded by Mr. Lennartz, 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
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, A NEGATIVE DECLARATION IS MADE UNDER SEQR.
The Chairman noted that he generally does not support sign variance requests and that he adheres to the established policies set by the Town Board and Town of Orchard Park. However, he feels that the amended sign request is closer to the ordinance and attractive. He also noted that the applicant has many characters in their name making it difficult to comply with the requirements.
Ms. Litwin made a motion, seconded by Mr. Lennartz, to GRANT the area variance as revised for 28.125 sq. ft. for the following reasons:
1. There will be no undesirable change to the character of the neighborhood.
2. The benefit cannot be achieved in another way.
3. The request is not substantial.
4. There will be no adverse impact on the neighborhood or the environment.
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5. The difficulty was not self-created.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
HOLMWOOD AYE
LENNARTZ AYE
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED.
The Chairman told Mr. Lennartz that he and the Board thank him for all his effort and hard work involved with the Scenic Byway Committee.
Chairman, Remy C. Orffeo adjourned the meeting at 8:40 p.m.
DATED: August 6, 2004 Respectfully submitted,
REVIEWED August 11, 2004 Rose Seivert, Secretary
Zoning Board of Appeals
Remy C. Orffeo, Chairman