ZBA Mtg. #11 Reg. Mtg. #11 November 16, 2004 Page 1
ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the November 16, 2004 meeting held at the Basement Public Meeting Room, S4295 South Buffalo Street.
MEMBERS PRESENT: Remy Orffeo, Chairman
Donald Holmwood
Robert Lennartz
Joseph Liberti
Mark Dietriek, Alternate
EXCUSED: Jo Ann Litwin
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 October 19, 2004 REGULAR MEETING:
A motion was made by Mr. Lennartz, seconded by Mr. Liberti, to accept the minutes of the October 19, 2004 meeting as corrected and the reading of these minutes was hereby dispensed with as each member of the Board had previously received copies thereof.
THE VOTE ON THE RESOLUTION BEING:
ORFFEO AYE
DIETRIEK AYE
HOLMWOOD AYE
LENNARTZ AYE
LIBERTI 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, 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.
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The Chairman stated that site inspections of all cases presented tonight were made by:
ORFFEO AYE
DIETRIEK AYE
HOLMWOOD AYE
LENNARTZ AYE
LIBERTI AYE
NEW BUSINESS
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). Requests 2 area variances to allow a 192 sq.ft. shed to remain within the front yard. No accessory structure shall be located within the front yard, Section 144-24A(1)(B). Accessory structures in B Zone shall be no larger than 120-sq. ft., Section 144-24B.
APPEARANCE: Anthony Turton, property owner
Mr. Turton stated that Mr. Dan Lelito, at that time an employee of the Orchard Park Building Inspector’s Office, informed him to be sure that he did not place the storage shed in front of the building. Mr. Turton told the Board that he had not been made aware of the fact that he was required to have a building permit to erect the storage shed, nor had he known that the size of the shed could not exceed 120 sq. feet. The size of Mr. Turton’s storage shed is 12’ x 16’, which totals 192 sq. feet. Mr. Turton told the members that the NYSEG has a guidewire located on his property that prevents him from having the shed located in a portion of it. He also noted that he had placed the storage shed approximately sixty feet away from the front of the building and had not believed that he was violating the ordinance.
Mr. Holmwood established that the storage shed is positioned on top of a “skid” and is moveable. Mr. Turton explained to the members that he would like to have the shed remain at its present location as he feels this is the best location for it.
Mr. Lennartz established that the shed would be used for the storage of lawn and garden equipment. He also established that another building located on the property is not used as a residence and had once been a Town of Orchard Park pumping station. A business may be located in this building some day.
Mr. Dietriek questioned Mr. Turton regarding a “blackened stone” area of the property. Mr. Turton explained that fertilizer had been stored there.
The Chairman discussed the noncompliance issues that exist with the storage shed. Mr. Turton explained that he had believed that the shed could not be located
directly in front of the building. He had not realized that the shed could not be located anywhere in the front yard area, forward of the building. The Chairman concluded that Mr. Turton would not be appearing before the Board if he had complied with the front yard ordinance; if he had contacted the Building
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Inspector’s Office he would have been advised that he needed a building permit and he would have been told that the size of his storage shed was not in compliance. Mr. Turton told the members that moving the shed 15’ to be in compliance with the ordinance would not alter the visual perception of the shed on his property.
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 he feels the petitioner made an honest mistake by misunderstanding what he was told. He was surprised that Mr. Turton did not know that he needed a permit to erect the shed. If the permit had been obtained he could have avoided the noncompliance issues.
The members’ discussion concluded that they would like the storage shed moved to meet the setback requirements.
The Chairman made a MOTION, seconded by Mr. Dietriek, in two parts as follows:
To DENY allowing the storage shed to be located in the front yard for the following reason:
1. The applicant has not shown a real practical difficulty that could not have been relieved if he had come to the Building Inspector’s Office first.
To APPROVE a variance for a 192-sq. ft. storage shed, which exceeds the allowable area by 72-sq. ft., for the following reasons:
1. The shed is set back and there will be no undesirable change to the character of the neighborhood.
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2. The applicant has demonstrated to some degree that he needs storage space.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
DIETRIEK AYE
HOLMWOOD AYE
LENNARTZ AYE
LIBERTI AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE FRONT YARD VARIANCE IS DENIED AND THE ACCESSORY STRUCTURE SIZE IS APPROVED.
The Chairman told the applicant that he would need to complete a short environmental assessment form and return it to the Zoning Board Secretary or the Building Inspector’s Office. The Board will review the SEQR for this case and make a determination at the next meeting.
2. ZBA File #47-04, David & Sherri Hore, 59 Grandview Trail, Zoned A-1 (Sub Lot #22, Map Cover 2722; SBL#185.17-1-22). Requests 2 area variances to construct a single-family dwelling. The first request is for 7.57% of lot coverage. Maximum lot coverage for this A-1 lot is 7%. The second request is for a combined side setback of 71 feet. Minimum combined side setback for this A-1 Lot is 80’, Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.
APPEARANCE: Thomas Johnson, builder
Mr. David Hore, property owner
Mr. Johnson explained to the members that the proposed home was designed to fit on a lot based on the information provided from the site plan. The site plan indicates that the lot is 166’ wide and this dimension appears to run parallel to the back. The Town of Orchard Park mandates that the required minimum lot size is 160 feet wide. However, Mr. Johnson discovered that this lot does not conform to the Town code. The lot has a sloping topography and it tapers back to 158’, creating the encroachment. The proposed home would have a lot coverage of 7.57%, exceeding what is allowed to be built on the lot by 0.57%.
Mr. Johnson noted that several variances have been granted for homes located here and he feels that the minimum of 7% lot coverage is too restrictive for this development. He also told the Board that purchasing property from the adjoining neighbors is not possible without creating the same nonconformance issues for them. He told the Board that the adjacent property owners, Mr. & Mrs. Merle Whitehead of 57 Grandview Trail and Mr. & Mrs. Breidenstein of 61 Grandview Trail have signed a petition stating that they have no objection to the granting of the variances. Mr. Johnson told the Board that revising the home by 0.57% (which is 318’) would cause the loss of one large room from the first floor area. That loss would involve the master bedroom and ˝ of the garage space.
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The Chairman noted that a drainage swail had been designed per an agreement with the Engineering Department and that a wetland area exists on this 1-1/4 acre site.
Mr. Dietriek established with Mr. Johnson that attempts were made to re-position the home on the proposed site, but there was no way to make the home fit without requiring a variance.
The Chairman noted that he had walked the property and believes a practical difficulty exists for the petitioner. On the map it appears that the lot is parallel and 166 feet wide, however, this is not the case. The lot reduces in size towards the back and does not meet the Town minimum size requirements.
A discussion regarding the published request for a variance of 7.57% and the fact that Mr. Hore would like to have the variance for 7.9% lot coverage concluded with the Board members stating that Mr. Hore was welcome to reapply for an additional variance.
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 that there would be no physical impact created to the neighborhood. Mr. Lennartz found it positive that the adjacent property owners supported the variances being requested. The Chairman noted that the variance request would be based on the notice published for 7.57% lot coverage.
Mr. Dietriek made a MOTION, seconded by Mr. Holmwood to APPROVE the two area variances being requested for the following reasons:
1. There will be no undesirable change in the character of the neighborhood.
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2. There will be no adverse effect or impact on the physical or environmental conditions of the neighborhood.
3. The difficulty was not self-created
4. A practical difficulty exists with the lay out of the land.
5. The variance request is for 7.57% lot coverage.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
DIETRIEK AYE
HOLMWOOD AYE
LENNARTZ AYE
LIBERTI AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED FOR THE TWO AREA VARIANCES REQUESTED.
3. ZBA File #48-04, William Long & People Inc., 2336 Southwestern Blvd., Zoned SR (Part of Farm Lot 404, Township 10, Range 7; SBL#153.08-2-6.12). Requests a variance to install a 32-sq. ft. construction sign. Maximum sign area in a residential zone is 6-sq. ft., Section 144-40D(2).
APPEARANCE: Mr. William Long, Long Architects
Ms. Honda Fredericks, owner
The petitioners presented and explained their request for a temporary sign to be erected during construction of the senior housing project known as “Carnation Senior Housing”. The petitioners told the Board that they are required by the Department of Housing to have the sign displayed during construction.
The members reviewed the submitted sign information and established that the sign would contain information for taxpayers regarding the project. The sign will not be lit and it will be removed after construction is complete, before or on July 1, 2005. The sign size will be 4’ x 8’ and be located four feet above the ground.
Mr. Lennartz confirmed with Mr. Long that the permanent sign would be in compliance with the Town of Orchard Park sign ordinance and that no variances will be needed. Mr. Long stated that the Planning Board had approved the permanent sign. The Chairman discussed with the petitioners the fact that if the temporary sign were denied, the senior housing project would still be constructed. Mr. Dietriek established that “HUD” regulations mandate the wording and the size of the lettering used on the temporary sign. Mr. Dietriek did not view the request in a positive fashion.
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Attorney Michael Wolf told the Board that a SEQR determination was not necessary for this request.
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 he could support the request because it was for a short-term period. He also noted that the permanent sign would be in compliance with the sign ordinance.
Mr. Lennartz made a MOTION, seconded by Mr. Liberti to GRANT the variance for a temporary construction sign for the following reasons:
1. There will be no undesirable change to the character of the neighborhood or a detriment to the nearby properties.
2. The benefit cannot be achieved in any other way. The applicant is directed to follow “HUD” regulations.
3. The request is not substantial.
4. There will be no effect on the environment.
5. The difficulty is self-created, but that does not preclude the granting of the variance.
6. The sign will be removed by July 1, 2005.
7. The permanent sign will be in compliance with the Orchard Park sign regulations.
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THE VOTE ON THE MOTION BEING:
ORFFEO AYE
DIETRIEK NAY
HOLMWOOD AYE
LENNARTZ AYE
LIBERTI AYE
THE VOTE ON THE MOTION BEING FOUR (4) IN FAVOR AND ONE (1) AGAINST, THE MOTION IS HEREBY PASSED.
4. ZBA File #49-04, Mark Sparks, 5556 Draudt Road, Zoned R2/A1 (Part of farm lot 28, township 9, range 7; SBL#184.00-2-27.12). Requests an area variance to construct a detached garage with a building area of 896 sq. ft. Total Building area of accessory structures with proposed garage is 2,066 sq. ft. Building area of dwelling is 1,145 sq. ft. Accessory area shall not dominate principal use area, Section 144-58.
APPEARANCE: Mr. & Mrs. Mark Sparks, property owners
Mr. Sparks told the Board that he desires to construct a detached garage to store personal vehicles. The Chairman established that a current barn on the property was built in the early 1900’s, is structurally sound, and that there are no reasons to demolish it.
Mr. Holmwood established that the existing barn is used for storage of a tractor and garden supplies. Mr. Sparks stated that the proposed garage would be 28’ x 32’, which is approximately the size of a 3-1/2 car garage. Mr. Sparks told the members that he would like to store a boat and two vans in the proposed garage. He noted that this would leave very little room for other items.
Mr. Liberti discussed the concrete pad that had been poured for the proposed garage. Mr. Sparks explained to the members that he had fully intended to have a building permit before construction of the garage commenced. The concrete pad was poured to accommodate the contractor’s schedule and weather conditions. He told the members that the garage would be constructed of wood and vinyl.
Mr. Dietriek noted that the existing barn does not dominate the property and if it did not exist, a variance would not be needed for the proposed garage.
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
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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. Liberti made a MOTION, seconded by Mr. Holmwood, to GRANT the area variance for the following reasons:
1. There will be no undesirable change in the character of the neighborhood the proposed garage will enhance the area.
2. The request is not substantial.
3. There will be no adverse effect or impact on the physical or environmental conditions of the neighborhood.
4. The difficulty was not self-created.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
DIETRIEK 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 8:30 p.m.
DATED: November 29, 2004 Respectfully submitted,
REVIEWED December 14, 2004 Rose Seivert, Secretary
Zoning Board of Appeals
Remy C. Orffeo, Chairman