May 18, 2004

ZBA Mtg. #5 Reg. Mtg. #5 May 18, 2004 Page 1

ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the May 18, 2004 meeting held at the Basement Public Meeting Room, S4295 South Buffalo Street.

MEMBERS PRESENT: Remy Orffeo, Chairman

Donald Holmwood

Robert Lennartz

Deborah Chimes

EXCUSED: Henry Jarocha

Jo Ann Litwin, 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.

The Chairman congratulated Mr. Holland on his promotion to the position of Building Inspector.

APPROVAL OF THE MINUTES OF THE March 16, 2004 REGULAR MEETING:

A motion was made by Mrs. Chimes, seconded by Mr. Lennartz, to postpone the reading and approval of the minutes from the March 16, 2004 Zoning Board meeting until the June 15, 2004 meeting.

THE VOTE ON THE RESOLUTION BEING:

ORFFEO AYE

CHIMES AYE

HOLMWOOD 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

Mtg. #4 Reg. Mtg. #4 April 20, 2004 Page 2

filing of the decision in the office of the Town Clerk. The Acting Chairman

stated that site inspections of all cases presented tonight were made by:

ORFFEO AYE

CHIMES AYE

HOLMWOOD AYE

LENNARTZ 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.

OLD BUSINESS

1. ZBA File #5-04, Michael Metzger & Rolling Ridge Development Co., Re: Vacant Land, west side of South Abbott Road (Part of Farm Lot 35, Township 9, Range 7; SBL#184.00-6-41.1), requests an area variance to reduce lot requirements to be consistent with lots in a subdivision in the Town of Hamburg, which they are part of. Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations. Note: This is an amended request for a variance previously granted in 1996 (ZBA File #32-96) and 2001 (ZBA File #5-01).

APPEARANCE: Mr. Michael Metzger, Metzger Civil Engineering

Mr. James Roll, Attorney

The Chairman confirmed that the petitioner would like the Board to take action on the request at this meeting.

Mr. Metzger told the members that in 1996 he had been the representative that presented this case. Mr. Metzger noted that his associate had presented the case in 2001. Mr. Metzger presented a brief history of the project, explaining that the seventy (70) lot project is located mostly in the Town of Hamburg, with a portion of it in Orchard Park. The minimum lot sizes in Hamburg are smaller than those allowed in the Town of Orchard Park. For consistency purposes, in 1996 a variance was requested and granted to allow homes to be built in Orchard Park to be on reduced lot sizes and have nonconforming setbacks. There was no need to pursue the Town of Orchard Park subdivision process as the Town of Orchard Park Planning Board deferred all planning matters to the Town of Hamburg. Since that time, the Town of Hamburg has granted subdivision approval.

Mr. Metzger stated that three phases of the project have been developed with approximately three more remaining. The variance granted in 1996 expired after

ZBA Mtg. #5 Reg. Mtg. #5 May 18, 2004 Page 3

six months. In 2001 an appeal was made to reaffirm the prior variance. At that time, the Board extended the variance for a one-year period and that variance has expired. Mr. Metzger told the members that the time limit on the variance granted continues to be his problem. Development of the subdivision has not yet expanded to the area that is located in Orchard Park. Mr. Metzger would like the variance to be valid and in place when the project reaches this area. He requests that the variance be granted for an extended time period of three to five years.

Mr. Roll told the members that there is a reliance argument with this appeal as the variance had been previously granted in 1996. Subsequently, they received approval from the Town of Hamburg. This project came to be based on the variance that was granted in 1996. In 2001 the variance was reaffirmed. Mr. Roll stated that they are asking for the same tonight. If the variance is extended for one year, they most likely will have to return after that time expires and ask for the same request. Unfortunately, the property that lies within the Town of Orchard Park will not be developed until the last phase. He believes that by the time they reach that point, the variance will have expired. He asked that the Board consider these points.

Mr. Metzger indicated on the site plan that one of the lots is under contract to be sold to St. Bernadette’s Church.

Mr. Holmwood stated that he would not be opposed to granting the variance request for two years. However, he noted that this might not be long enough.

Mr. Lennartz asked Mr. Metzger to advise the Board what time frame he would be comfortable with that would eliminate him from having to return and extend the variance. Mr. Metzger stated that he believes five years would be the longest, but that they may be able to accomplish the “build out” in three years. Mr. Lennartz asked the petitioner what the economic impact would be if the variance were denied. Mr. Metzger stated that they had the confidence moving forward, with the previous variances in hand. He told the members that the three lots available would be reduced to one. In addition, they would have to re-apply to the Town of Hamburg for preliminary plat approval and reconfigure their plans.

The Chairman spoke briefly about the past voting trend involved with this request, noting that he has never given his support. He further told the petitioner that he does not support granting long-term variances. He feels reapplying is a waste of the petitioner’s time and the Board’s. He wonders why the petitioners had not at least broken ground on a part of the site so that they would not have to keep reappearing. Mr. Metzger told the members that it is a matter of timing. He explained that the building industry is market driven. Patrick Development would favor construction of the site in one remaining phase, however the cost of developing the infrastructure without having the lots sold does not allow this.

Chairman Orffeo noted that he does not have a problem with granting a variance for lot #67 (formerly #53). The Chairman noted that the lot contracted to the church would not be developed as a residential lot. Mr. Metzger stated that the

ZBA Mtg. #5 Reg. Mtg. #5 May 18, 2004 Page 4

configuration of the site plan did not change. The Chairman told the petitioners that towns have unique characteristics and that the Town of Orchard Park building code requirement is different than the town of Hamburg’s. The lots are located on a main road in the Town of Orchard Park and the code requires lot sizes that are larger than those required in the Town of Hamburg. Chairman Orffeo believes that homes constructed here should be built similar to the requirements of the Town of Orchard Park. He does not have a problem with the petitioner reducing the number of lots in order to be able to be in compliance. He believes that it would serve the community better. Also, he cannot believe that there is a significant cost involved with this revision. The Chairman concluded that nothing has changed and that his feelings have not changed regarding this request.

The Chairman then asked if there was anyone in the audience who would wish to speak in favor of the granting of 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.

OPPONENT:

Mrs. Robert Rosengart

5841 South Abbott Road

Orchard Park, NY 14127

Mrs. Rosengart confirmed with Building Inspector David Holland that the ordinance requires a buildable lot size in an A1 zone to be 54,500 sq. ft. Lot #56 is proposed to be 27,226 sq. ft. and lot #54 is proposed to be 26,027. Mrs. Rosengart would prefer to see the houses on larger lots.

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 discussed the petitioner’s request and agreed that they did not favor the petitioner returning after a variance expired to extend it. Mrs. Chimes stated that although the lots were not in compliance with the Town of Orchard Park code, they were larger than those required by the Town of Hamburg. Therefore, she feels that she could support the request. Mr. Lennartz stated that he did not favor extending the variance. He feels a “good faith” arrangement is needed to indicate that construction will take place. Mr. Lennartz also finds the differences in the lots sizes to be significant. The Town of Orchard Park has an established lot requirement that Mr. Lennartz feels is reasonable.

ZBA Mtg. #5 Reg. Mtg. #5 May 18, 2004 Page 5

Mr. Orffeo asked if the members had any objections to lot #67. The members concurred that they had no problem with this lot. A discussion regarding reducing the number of lots concluded with Mr. Metzger noting that both engineers from the towns of Hamburg and Orchard Park had approved the infrastructure and project. In addition, the Erie County Department of Environmental Planning and the Erie County Health Department have approved the project. The project has been given subdivision approval and water approval, based on the submitted site plan. If the plan were revised the approval process would have to be gone through again. The Chairman asked Building Inspector David Holland if any new information had been received from the engineering department regarding this project. Mr. Holland stated that he had not received any new information. Mr. Rolls noted that each and every one of the approvals was done in reliance upon the fact that the Zoning Board of Appeals had granted the initial variance that had been needed to go forward and the subsequent renewals. Mr. Rolls feels that the petitioner has been acting in good faith for the last seven years based upon the Zoning Board’s approval.

The Chairman told the petitioners that he feels there is a reason why the Town of Orchard Park has larger lot size requirements. He stated that this process is taking an extremely long time and noted that the request is now to have the variance granted with no time limit. Mr. Metzger told the members that he believes that it would be possible to start construction in three years and that five years would be a worse case scenario. The Chairman noted that at the 2001 meeting the petitioner’s representative, Mr. Porter, stated that the map cover would be filed within the next three to five years, which brings us to the year 2004 - 2006; another five years from now will be 2009. Mr. Metzger told the members that it is difficult to forecast the market condition and how quickly a project can be done.

The applicant had agreed to have the Board vote on their request this evening; however, the Chairman did not feel that it was in their best interest. He offered the following motion:

The Chairman made a motion, seconded by Mr. Holmwood, to APPROVE the variance for Lot #67 and postpone the discussion on Lots #63, 64 and #65 to “Old Business” at the June 15^th meeting.

THE VOTE ON THE MOTION BEING:

ORFFEO AYE

CHIMES AYE

HOLMWOOD AYE

LENNARTZ AYE

THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED.

ZBA Mtg. #5 Reg. Mtg. #5 May 18, 2004 Page 6

NEW BUSINESS

1. ZBA File #14-04, Mark & Karen Jenkins, 6567 Powers Road, Zoned R-2 (Part of Farm Lot 12, Township 9, Range 7; SBL#185.13-1-2.1). Requests an area variance to construct a 920 square foot shelter at an existing pool house. Total building area of accessory structures with proposed addition is 2,831 square feet. Building area of dwelling is 2,123 square feet. Accessory area shall not dominate principal use area, Section 144-5B.

APPEARANCE: Mr. Mark Jenkins, property owner

Mr. Dean

Mr. Jenkins explained his desire to construct an “open air” shelter on his property for parties and family functions.

The member’s questions established that the permanent shelter would have no effect on the drainage of the area. The Chairman told the petitioner that he did not want the shelter to be enclosed and the petitioner agreed to this stipulation.

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.

Mrs. Chimes made a motion, seconded by Mr. Holmwood, to GRANT the area variance with a stipulation for the following reasons:

1. The request will not create an undesirable change to the neighborhood.

2. The request is not substantial.

3. There will be no adverse effect to the environment.

THE VOTE ON THE MOTION BEING:

ZBA Mtg. #5 Reg. Mtg. #5 May 18, 2004 Page 7

ORFFEO AYE

CHIMES AYE

HOLMWOOD AYE

LENNARTZ AYE

THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED.

The variance is GRANTED with the following stipulation:

1. The structure is not to be enclosed.

2. ZBA File #15-04, Gregory & Sandra Ford, 3416 Baker Road, Zoned R-2 (Part of Farm Lot 12, Township 10, Range 7; SBL#153.18-1-10). Requests an area variance to construct a garage and breezeway with a front yard setback of 32’. Minimum front yard setback for an R-2 lot of record is 40’. Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.

APPEARANCE: Gregory Ford, property owner

Mr. Richard Davis, contractor

Mr. Ford presented and explained his plans to remove an existing garage and construct a new garage.

The Chairman verified that the existing garage would be demolished.

Mr. Holmwood established that the proposed breezeway would be approximately 8 ft. wide.

The Chairman noted that the current detached garage and house are approximately 25’ from the road. The proposed garage will be 32’ from the road setback beyond the existing house.

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.

ZBA Mtg. #5 Reg. Mtg. #5 May 18, 2004 Page 8

The Secretary stated no communications have been received.

Mr. Lennartz made a motion, seconded by Mrs. Chimes, to GRANT approval for the area variance for the following reasons:

1. The garage will have a setback, which is greater than the setback of the home.

2. There will be no undesirable change to the character of the neighborhood.

3. The benefit cannot be sought in any other way.

4. This is not a substantial variance.

5. There will be no impact on the neighborhood.

6. There will be no adverse effect on the environment.

7. The difficulty was not self-created.

THE VOTE ON THE MOTION BEING:

ORFFEO AYE

CHIMES AYE

HOLMWOOD AYE

LENNARTZ AYE

THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED.

3. ZBA File #16-04, Steve Becker, vacant lot, south side of New Taylor Road, Zoned R-2 (Part of Farm Lot 15, Township 9, Range 7; SBL#161.16-1-21). Requests a use variance to construct a two-family dwelling on a R-2 lot of record. Permitted principal use for an R-2 lot of record is single family dwelling, Section 144-9A schedule of use controls.

APPEARANCE: Mr. Mark Morgan, Attorney

The Chairman noted that Mr. Morgan did not have documentation giving him the authority to represent the applicant. Attorney Michael Wolf explained that the Board could not vote until written authority was obtained that gave Mr. Morgan this authority. However, the case could be heard.

Mr. Morgan stated that Mr. Becker has contracted to purchase the land from the owner, Mr. Bergner contingent upon receiving the variance request. Mr. Morgan presented and explained the proposed plans for the construction of a two family dwelling, which would be owner occupied. He told the members that the current neighborhood is compromised of single family homes, commercial establishments and two-family homes. Mr. Morgan noted that one of the two-family homes is located directly across the street from this lot. Mr. Morgan also noted that the

ZBA Mtg. #5 Reg. Mtg. #5 May 18, 2004 Page 9

construction of a two-family home is consistent with the area and that it would not create an undesirable change to the character of the neighborhood.

The Chairman stated that he feels the current zoning was designed to retain the neighborhood as single family homes along the south side of Taylor Road to Linwood. He told Mr. Morgan that he disagrees with him in regards to the character of the neighborhood not being changed. A discussion of the character of the area concluded with the Chairman noting that the owner of the property did not have a hardship as a single family home could be built on this lot without the need for a variance. Mr. Morgan concurred with the chairman

Mr. Lennartz stated that he feels the character of the neighborhood would change if a two-family home were allowed to be built.

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.

OPPONENT:

Dennis Orlow

95 N. Lincoln Avenue

Orchard Park, NY 14127

Mr. Orlow read and submitted a signed petition that listed objections to the granting of the variance that include the value of homes being diminished and the possibility of an absentee owner renting out the property. He also voiced concerns for drainage and aesthetics.

Mr. Gordon Foster

99 North Lincoln Avenue

Orchard Park, NY 14127

Mr. Foster told the members that he owns the vacant property to the west of the Bergner property. He agrees with the current zoning and feels that allowing a 2-family home will change the character of the neighborhood. He believes the applicant should locate another lot to build his project on.

Mr. Chris Woods

144 North Lincoln Avenue

Orchard Park, NY 14127

ZBA Mtg. #5 Reg. Mtg. #5 May 18, 2004 Page 10

Mr. Woods told the members that he resides at the rear of this lot. He agrees that the character of the neighborhood will be changed and feels that the zoning for a single family home should remain.

Mr. Jim Loffredo

6425 New Taylor Road

Orchard Park, NY 14127

Mr. Alfredo does not support the variance request and wants the zoning to remain as it is.

Ms. Susan Hassenfratz

121 North Lincoln Avenue

Orchard Park, NY 14127

Ms. Hassenfratz stated that she wants the land to remain vacant and green.

Bridget Lutz

141 North Lincoln Avenue

Orchard Park, NY 14127

Mrs. Lutz spoke against granting the variance.

Mr. Dennis Ferry

6365 Taylor Road

Orchard Park, NY 14127

Mr. Ferry is concerned that the development of this property will affect the drainage of the area.

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 Chairman noted that this is an unlisted SEQR and that a review of the drainage will be included in the SEQR document. The decision on the SEQR will not be issued this evening.

Mrs. Chimes noted that the single family zoning for this area of New Taylor Road is designed that way for a reason. She feels that a substantial change will occur to the area if the variance is granted.

Mr. Lennartz noted that the area is predominately single family homes. He believes that the character of the neighborhood would be changed if the variance were granted. He also has concerns regarding the drainage.

Mr. Holmwood agrees that the area should not have a two-family home built here.

ZBA Mtg. #5 Reg. Mtg. #5 May 18, 2004 Page 11

Chairman Orffeo noted that the character of the neighborhood is single family homes.

Chairman Orffeo made a motion, seconded by Mrs. Chimes, to TABLE this case and re-schedule it under “Old Business”, item #2 at the June 15^th meeting. At that time the members will discuss the SEQR. The Board requests that the owner or applicant be present.

THE VOTE ON THE MOTION BEING:

ORFFEO AYE

CHIMES AYE

HOLMWOOD AYE

LENNARTZ AYE

THE MOTION BEING UNANIMOUS, THE MOTION TO TABLE IS HEREBY PASSED.

4. ZBA File #17-04, Steve Piniewski, 455 Vistula Avenue, Zoned R-3 (Part of Farm Lot 446, Township 10, Range 7; SBL#152.13-1-50.11). Requests an area variance to construct a 30’ x 40’ detached garage in a front yard. No accessory structure shall be located within a front yard, Section 144-24(A)(1) B.

APPEARANCE: Steve Piniewski, property owner

Anthony Delmonte, Orchard Park Highway Department employee

The Chairman read a correspondence dated 4/28/04 from the Superintendent of Highways, Ron Geitter regarding an existing drainage problem on Velore Avenue. Mr. Geitter states that Mr. Delmonte has proposed to resolve this issue and he is reasonably sure that the standing water problem will be eliminated with the implementation of Mr. Delmonte’s plan.

Mr. Piniewski presented and explained his plans for a proposed garage that he would like to construct. The Chairman established that Mr. Piniewski has a practical difficulty in locating the proposed garage on his property because of the topography that exists. The rear portion drops off and there are existing wetlands.

Mr. Delmonte, a Town of Orchard Park Highway employee, explained the history of the area and told the members that he has designed a plan that he believes will eliminate the drainage problems of the involved area.

The Chairman confirmed with Building Inspector David Holland that the proposed drainage plan is reasonable. Chairman Orffeo also noted that the plan indicates that a turn around will be built and he feels that this will improve the safety of the area.

ZBA Mtg. #5 Reg. Mtg. #5 May 18, 2004 Page 12

Mr. Lennartz established that the garage will be use for storage and not for business purposes. He noted that there is a significant drop off behind the home and the garage could not be located at the rear.

The Chairman then asked if there was anyone in the audience who would wish to speak in favor of granting the variance.

PROPONENT:

Mr. Mike Nagumey

5286 Lake Avenue

Orchard Park, NY 14127

Mr. Nagumey lives told the members that he lives behind Mr. Piniewski. He described to the members how Mr. Piniewski takes exceptional care of his property.

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, to GRANT the request for an area variance for the garage to be located in the front yard. There is to be no outside storage what so ever of any kind around the garage, i.e. tires, etc…

THE VOTE ON THE MOTION BEING:

ORFFEO AYE

CHIMES AYE

HOLMWOOD AYE

LENNARTZ AYE

THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED.

ZBA Mtg. #5 Reg. Mtg. #5 May 18, 2004 Page 13

The Chairman will send a letter of thanks to Highway Superintendent Ron Geitter for his assistance.

Chairman, Remy C. Orffeo adjourned the meeting at 9:15 p.m.

DATED: June 16, 2004 Respectfully submitted,

REVIEWED June 21, 2004 Rose Seivert, Secretary

Zoning Board of Appeals

Remy C. Orffeo, Chairman