ZBA Mtg. #8 Reg. Mtg. #8 August 16, 2005 Page 1
ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the August 16, 2005 meeting held in the Basement Public Meeting Room, S4295 South Buffalo Street.
MEMBERS PRESENT: Remy Orffeo, Chairman
Donald Holmwood
Robert Lennartz
Joseph Liberti
Jo Ann Litwin
Mark Dietrick, 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.
APPROVAL OF THE MINUTES OF THE JULY 19, 2005 REGULAR MEETING:
Upon a motion duly made and seconded, the reading of the minutes of the July 19, 2005 Zoning Board of Appeals meeting was unanimously waived as each Board Member had previously received copies.
Mr. Lennartz made a MOTION, seconded by Ms. Litwin, to accept the minutes of the July 19, 2005 meeting as presented.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
HOLMWOOD AYE
LENNARTZ AYE
LIBERTI AYE
LITWIN AYE
THE VOTE IS UNANIMOUSLY PASSED.
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
DIETRICK AYE
HOLMWOOD AYE
LENNARTZ AYE
LIBERTI AYE
LITWIN AYE
OLD BUSINESS
1. ZBA File #36-05, Sean Hanley & Erminio Liberatore, 66 Coventry Lane, Zoned R-1 (Sub Lot #62, Map Cover 2465; SBL#173.07-4-48/B). Requests an area variance to construct a 25’ x 38’ detached garage in a front yard. No accessory structure shall be located within a front yard Section 144-24(A) (1) B. This case was adjourned and will be reviewed at the August meeting.
APPEARANCE: Mr. & Mrs. Sean Hanley, property owner/petitioner
Mr. Hanley distributed sketch plans that had been requested by the Board at the July meeting for the proposed detached garage he would like to construct. He told the Board that the design will compliment his Victorian style home. The Chairman noted that the garage being proposed has the same dimensions as the garage proposed at the July meeting. Building Inspector David Holland briefly reviewed the plans and stated that he did not believe there will be a problem with the proposal. Mr. Hanley told the Board that the garage will be strictly for personal use; no business will operate from here.
The Chairman noted that this is a continuation of a previous meeting and that everything needed has been entered into the record.
Attorney Michael Wolf stated that a SEQR determination is not necessary.
Mr. Liberti made a MOTION, seconded by Ms. Litwin, to GRANT the variance request for the following reasons with a stipulation:
1. There will be no undesirable change in the character of the neighborhood. It will actually enhance the property.
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 is not self created.
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This variance is granted with the following stipulation:
1. The garage is not to be used for business purposes.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
HOLMWOOD AYE
LENNARTZ AYE
LIBERTI AYE
LITWIN AYE
THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED WITH A STIPULATION.
NEW BUSINESS
1. ZBA File #37-05, Michelle R. Selice, 170 Velore Avenue, Zoned R-3 (Sub Lot’s 731 & 732, Map Cover 956; SBL#151.16-2-53). Requests an area variance for an addition to an attached garage 3 feet from the side lot line. Minimum side setback for this R-3 lot is 5 feet, Section 144-20A (2).
APPEARANCE: Ms. Michele Selice, petitioner/property owner
Mr. Joe Mariano
Ms. Selice told the Board that she desires to enlarge her existing one car garage to achieve additional room for storage. Items presently stored outside of the home would be placed in the proposed garage addition. The members’ questions established that the neighbors do not object to the variance 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.
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The Chairman noted he feels that the character of the neighborhood will not be changed. The homes here are located on narrow lots close to one another. If the variance is approved he would like a stipulation that there be no storage on the side of the garage.
Mr. Dietrick noted that he agrees with the Chairman and that he does not feel the request is substantial.
Mr. Lennartz made a MOTION, seconded by Mr. Holmwood, to GRANT the variance request with a stipulation for the following reasons:
1. There will be no undesirable change to the character of the neighborhood.
The garage addition will enhance the neighborhood.
2. The benefit sought cannot be achieved in another way.
3. The request for 3 ft. is not substantial.
4. The difficulty may be self-created, however that does not preclude the granting of the variance.
The variance is granted with the following stipulation:
1. The side of the garage is not to be used for storage of any kind.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
HOLMWOOD AYE
LENNARTZ AYE
LIBERTI AYE
LITWIN AYE
THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED WITH A STIPULATION.
2. ZBA File #38-05, Hugh Smith, 3410 Angle Road, Zoned R-2 (Part of Farm Lot 7, Township 10, Range 7; SBL#’s 153.19-1-12 & 153.19-1-26). Requests an area variance to create a new lot with 100 feet of lot width. Minimum lot width in this R-2 Zone is 110 feet. Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.
APPEARANCE: Mr. Hugh Smith, petitioner/property owner
Mr. Smith explained to the Board that in 1957 the legal width for a building lot was 100 feet. The current ordinance requires that a building lot be a minimum of 110 feet wide. Building Inspector David Holland discussed and clarified the
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request for the Board. He explained that Mr. Smith desires to divide his current 200’ x 400’ lot into two equal portions. Doing so will provide him with a 100’ x 400’ building lot on the south side of his existing home. The back of the property is bordered by a 200 ft. wide, five acre parcel of vacant land that he also owns. He told the members that it is possible to attach the five acre parcel to the newly created lot or to make it a part of the established lot that contains his home. Eventually, the five acres parcel must be combined with either parcel as it has no road frontage and is landlocked. Mr. Smith also owns the adjacent building lot on the north side of his home.
The Chairman noted that several 100 ft. wide lots exist in this area and that they were established before the ordinance change. He further noted that he feels the proposed lot is a substantial sized lot, as it is almost one acre.
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 agreed that the lot is a “good sized lot” and he also noted that the area has other lots than are 100 ft. in width.
Ms. Litwin made a MOTION, seconded by Mr. Holmwood, to GRANT the variance request based on the following:
1. There will be no undesirable change to the character of the neighborhood; it fits well with the area.
2. The benefit sought cannot be achieved in another way.
3. The request is not substantial as the lot size is large.
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4.
There will not be an adverse effect or impact on the physical or environmental
conditions of the neighborhood
5. The difficulty was not self-created.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
HOLMWOOD AYE
LENNARTZ AYE
LIBERTI AYE
LITWIN AYE
THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED
3. ZBA File #39-05, Dr. Ronald M. Reeb, 3685 Southwestern Blvd., Zoned B-2 (Part of Farm Lot 32, Township 9, Range 7; SBL#161.00-5-42). Requests an area variance to install a freestanding sign with (2) 40 square foot display surfaces and (2) adjacent ornamental sculptures. Maximum sign area for this freestanding sign is (2) display surfaces, each of which shall not exceed 20 square feet, Section 144-38B.
APPEARANCE: Dr. Ronal Reeb, petitioner/property owner
Dr. Reeb stated that he purchased property at 3685 Southwestern Boulevard to open a massage therapy practice. He recently discovered that a utility easement exists on this property. To accommodate the easement, signage for the site must be re-located further back from the road. He told the Board that this will make it difficult to view and locate his business, along with the other tenant, Quest Diagnostics. The legal speed limit is 50 miles per hour and he feels an unsafe situation for customers will exist if they cannot easily identify his location. Part of his design plan is to incorporate two casted buffalos. The approximately 3 foot buffalos will be positioned on each side of the proposed signage. He told the Board that if he had chosen to use a pedestal sign he would not need a variance. Further, the allowed size of the pedestal sign is larger than the signage he is requesting. He noted that an existing freestanding sign located nearby appears to be larger than what he is requesting. He also told the Board that he is planning a grand opening on September 6, 2005 and that the proposed signage could be built and installed before that time.
Ms. Litwin established that the photo submitted showing one face sign (double sided) had been designed for when the sign was located closer to the road. Upon learning that the sign needed to be relocated further back on the property, it became necessary to redesign the sign so that it could be viewed from either direction of traffic. Dr. Reeb described the topography of the area and explained why the signage request is important.
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Mr. Lennartz established that Dr. Reeb’s business is mostly from drive-by customers and is not based on a destination that is being sought. He discussed reducing the size of the display surfaces with Dr. Reeb, as he found it disconcerting that the variance request amounts to 100% of what is allowed by the ordinance. Dr. Reeb explained that the words are long and will be hard to read if they are reduced. He feels it is important that the sign is readable at the distance where he must now locate it in conjunction with the speed that is traveled on Southwestern Boulevard.
Mr. Liberti established that the signage will be lit, professional landscaping will be used and the existing signage will be removed.
Mr. Holmwood noted that he, too, is not happy with the size of the sign. He feels the sign will create a dangerous situation with people breaking and slowing down to view it.
Mr. Dietrick noted that the applicant has explained the difficulty is not self-created. However, it is not the Town’s responsibility for his lawyer’s mistake in the failure to discover the easement. Mr. Dietrick noted that he, too, is concerned with the size of the variance request. For safety reasons he noted that individuals may not want to view a sign this detailed. In his opinion, that is why the ordinance calls for pedestal signage to be larger.
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.
Ms. Billings
55 Coventry Lane
Orchard Park, NY 14127
Ms. Billings stated that she believes business is handled with referrals and that people are given locations and will know where Dr. Reeb is located. She also feels that the buffalos will be distracting to drivers as they pass by.
Mrs. Gorman
165 Hobby Lane
Orchard Park, NY 14127
Mrs. Gorman compared the room size to the request and verified the dimensions of the signage.
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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 stated that she had difficulty locating the site (3685 Southwestern Boulevard). The Chairman stated that he feels that the number on the existing signage is too small and that the signage being proposed has the same difficulty. He told Dr. Reeb that if the numbers were larger it would be easier to locate the building. Dr. Reeb noted that in addition to the existing sign, the numbers are also on the building. The Chairman noted that people are more apt to look for a sign, rather than at the building for information. He further stated that the applicant would be better off with no sign, as he believes people would be able to find the building without the distraction of having a sign. The Chairman asked Attorney Michael Wolf to clarify the buffalo monument part of the request. Attorney Michael Wolf told the members that the buffalos are not pertinent to the signage request. The Chairman commented that the Board has no control over the buffalos and that he believes people have different feelings regarding these.
Mr. Lennartz told Dr. Reeb that he usually would not support the request and he discussed having what he termed as “the lesser of two evils”. He does not feel pedestal signage is attractive and he realizes that the ordinance would allow Dr. Reeb to have a pedestal sign that would be larger than what he is requesting. He asked Dr. Reeb if he could reduce the size of the proposed freestanding signage. The members discussed reaching a compromise with regards to the size of the proposed sign. The applicant agreed to reduce the size to 32 square feet and to not install a pedestal sign. The members noted that they feel that the buffalos will be a distraction to the signage.
Ms. Litwin 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
LIBERTI AYE
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, A NEGATIVE DECLARATION IS MADE UNDER SEQR.
Mr. Lennartz made a MOTION, seconded by Mr. Holmwood, to GRANT approval for the variance request with stipulations for the following reasons:
1. There will be no undesirable change to the character of the neighborhood.
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2. The benefit cannot be achieved in another way.
3. The request
borders on being substantial, but to diminish the effects of this situation a
reasonable, mutually beneficial compromise
was worked out.
4. There will be no adverse effect or impact on the physical or environmental conditions of the neighborhood.
This variance is granted with the following stipulations:
1. The sign area is not to exceed 32 square feet per side.
2. The applicant agrees to not install a pedestal sign.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
HOLMWOOD AYE
LENNARTZ AYE
LIBERTI AYE
LITWIN AYE
THE VOTE TO GRANT THE VARIANCE WITH STIPULATIONS IS UNANIMOUSLY PASSED.
4. ZBA File #40-05, Diane M. Meslinsky, 469 Hillside Avenue, Zoned R-3 (Sub Lot 321 & 322, Map Cover 860; SBL#152.09-4-21). Requests an area variance to install a 5 foot high fence in a front yard. Maximum height of a fence in a front yard is 3 feet, Section 144-22A (1).
APPEARANCE: Mrs. Diane Meslinsky, petitioner/property owner
Ms. Meslinsky explained that her back yard is an area of 9 feet, which is not adequate for her three pure-bred dogs to be placed in. Two of the dogs are used in a therapy reading program with a contract that forbids her to use the invisible fencing system to contain the dogs. She explained that she needs to have the dogs safely kept outside for exercise and relaxation and noted that installing a 3 foot fence will not restrict the dogs to the yard, nor keep out a person that would want to take the dogs. Ms. Meslinsky had not been aware of the ordinance regarding fences located in front of homes. She submitted a signed petition from 10 neighbors supporting her variance request. This has been entered into the permanent file. The most affected neighbor located at 471 Hillside, Mr. & Mrs. Robert Wengewicz, also sent a letter of support that has been entered into the permanent file.
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The members’ questions established that the fence will have a 3 foot gate at the sidewalk and be 28 feet across. It will encompass approximately 1/3 of the front yard area. The dogs are approximately 110 lbs., spade and neutered; no breeding will take place. The dogs will not be kept outside hour upon hour. Ms. Meslinsky told the members that she takes exceptional care of her dogs.
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 Chairman noted he usually opposes fence variances. However, in this instance Ms. Meslinsky’s home is set far back from the street, which makes her front yard adjacent to her neighbor’s backyards. The Chairman pointed out that her neighbors are allowed to install a 6 foot high fence in their backyards. If her home had been built in line with the neighboring ones, she would not require a variance. He also concluded that Ms. Meslinsky has a practical difficulty, as her backyard is a space of only 9 feet. However, Ms. Meslinsky should have performed due diligence and checked with the Town regarding the fence ordinance before purchasing the dogs.
Mr. Dietrick noted that he feels the request is not substantial based on the fact that Ms. Meslinsky’s neighbors can install a 6’ high fence in their backyards.
The Chairman made a MOTION, seconded by Mr. Holmwood, to GRANT the variance request with a stipulation for the following reasons:
1. The applicant has a practical difficulty and a hardship based on the location of the house to which she has shown that she only has 9’ at the rear of the home.
2. If the home were placed on a parallel line with the other homes in the neighborhood, she would be able to do the project without appearing before the Board for a variance.
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3. The applicant has demonstrated that there is a real need, given the fact that she has three dogs, for an area for them to exercise and rest.
4. The applicant indicated that there may be a safety factor when putting in an electric fence versus a chain link fence.
5. I do not think there will be a change to the neighborhood, given the fact that all of the neighbors in the proximity signed a petition stating that they have no objections to the variance request.
This variance is granted with the following stipulation:
1. Once the fence is erected, the kennel must be removed.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
HOLMWOOD AYE
LENNARTZ AYE
LIBERTI AYE
LITWIN AYE
THE VOTE TO GRANT THE VARIANCE WITH A STIPULATION IS UNANIMOUSLY PASSED.
There being no further business to be presented to the Board at this time, the Chairman, Remy C. Orffeo adjourned the meeting at 9:02 p.m.
DATED: September 1, 2005 Respectfully submitted,
REVIEWED: September 8, 2005 Rosemary Seivert, Secretary
Zoning Board of Appeals
Remy C. Orffeo, Chairman