ZBA Mtg. #1 Reg. Mtg. #1 January 18, 2005 Page 1
ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the January 18, 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
EXCUSED: Mark Dietriek, 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 7:40 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 December 21, 2004 REGULAR MEETING:
Upon a motion duly made and seconded, the reading of the minutes of the November 16, 2004 Zoning Board meeting was unanimously waived as each Board Member had previously received a copy.
THE VOTE ON THE RESOLUTION BEING UNANIMOUS, THE RESOLUTION WAS DULY ADOPTED.
Attorney Michael Wolf noted the following adjustment to the December 21, 2004 minutes: Page 14, item #6 of the motion reads “the variance will not take effect until proof is made available to the Building Inspector’s Office that the deed restriction has been filed with the County Clerk’s Office”. It should read “an affidavit has been filed with the County Clerk’s Office referencing the large rear parcel and that a variance was granted with a stipulation that only one single family home could be constructed”.
Mr. Holmwood made a MOTION, seconded by Ms. Litwin, to ACCEPT the December 21, 2004 minutes as adjusted.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
HOLMWOOD AYE
LENNARTZ AYE
LIBERTI AYE
LITWIN AYE
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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.
The Chairman stated that site inspections of all cases presented tonight were made by:
ORFFEO AYE
HOLMWOOD AYE
LENNARTZ AYE
LIBERTI AYE
LITWIN AYE
OLD BUSINESS
1. ZBA File #53-04, Andrew Spencer & Young Riedman LLC, 100 Hammocks Drive, Zoned R-3 (Part of Farm Lot 17, Township 10, Range 7; SBL#152.16-7-4). Requests a variance to install two (2) dwelling group identification signs along the corner of Orchard Park Road and the access drive to “The Hammocks”. One (1) sign may identify a dwelling group complex, Section 144-37B(1). This case was adjourned at the 12/21/04 meeting.
APPEARANCE: Mr. Andrew Spencer, BME Associates
The Chairman stated that this case had been held over to allow verification of the Planning Board’s feelings regarding the requested signage. In a conversation with Planning Board Chairman, Lorraine Biryla, Chairman Orffeo learned that several proposals had been reviewed by that Board and that they were comfortable with the one being presented to the Zoning Board of Appeals.
Mr. Spencer supplied the members with an aerial photograph of the property and described how the frontage of the property makes it difficult for individuals that are trying to locate the Hammocks and also creates a safety hazard for motorists. He explained that the signage requested would alleviate this problem.
Mr. Liberti discussed with Mr. Spencer having a single curved sign and locating it in the center of the frontage area. Mr. Spencer stated that the developer strongly feels that he must have the two proposed signs.
Mr. Lennartz established that the complex has good traffic without the proposed signage. Since successful marketing is already being realized, he feels that one sign would be sufficient. However, it was noted that several temporary signs are
ZBA Mtg. #1 Reg. Mtg. #1 January 18, 2005 Page 3
in place and that these have aided in attracting potential customers.
Ms. Litwin discussed the phases of development with Mr. Spencer and also established that ground mounted lighting (spot lighting) would be used to illuminate the proposed signage.
The Chairman established that it is anticipated that the complex will be completed in 2007. He also confirmed with Mr. Spencer that an area had been placed into a permanent green space agreement with the Town of Orchard Park. Mr. Spencer noted that the green space area would not be sold as an outparcel or be developed. The Chairman told Mr. Spencer that he is sympathetic to the developer’s need for identification. He also stated that he regards the land transfer to Brush Mountain Park that was agreed to during the onset of this project as a positive occurrence that makes him feel more comfortable towards the signage requests.
The members discussed their feelings regarding the signage requests. It was noted that three temporary freestanding signs are located at the site. Ms. Litwin stated that the temporary signs are unattractive and she would like these removed. However, Building Inspector Dave Holland told the members that construction signs can remain as long as there is a building permit. Ms. Litwin stated that she understands the business reasons behind the request for the proposed signage. She also noted that the Planning Board had found the proposed signage to be acceptable and that she feels that the proposal compliments the project. She further feels that the green space being provided is a positive aspect of this project for the Town of Orchard Park.
The Chairman noted that if the variances were granted for the signage to be erected, that the construction signs could remain possibly into the year 2007. He discussed having the construction signs removed with Mr. Spencer if the variances were granted. Mr. Spencer stated that he would agree to remove all other signage at the site in order to accommodate the granting of the variances.
Ms. Litwin made a MOTION, seconded by Mr. Lennartz, to APPROVE the variance requests for the following reasons with a stipulation:
1. There will be no undesirable change to the character of the neighborhood.
2. The benefit cannot be achieved in another way as the entrance is off to the side of the road.
3. The request is not substantial.
4. There will be no adverse effect or physical detriment on the environmental
5. The hardship is self-created.
This variance is granted with the following stipulation:
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1. When the proposed signage is erected and the word “Hammocks” appears, all temporary signs must be removed (i.e. the construction sign, the signs with the flags). The requested signage is to be the only two signs erected.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
HOLMWOOD AYE
LENNARTZ AYE
LIBERTI AYE
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED WITH A STIPULATION.
NEW BUSINESS
1. ZBA File #01-05, Bonnie Ausilio, 7159 Reserve Road, Zoned R3/B2 (Part of Farm Lot 410, Township 10, Range 7; SBL#153.06-1-20). Requests two variances to allow a change in use from a storage barn to a floral-gift shop. The first request is to allow a dual use. Only one use is permitted on a lot, Section 144-20D. The second request is to allow front yard parking. Vehicle parking is prohibited in the front yard in the B-2 Zone, Section 144-29A(4).
APPEARANCE: Mr. & Mrs. Bonnie Ausilio, property owners
Mrs. Ausilio described her property to the members and told them that she desires to operate a business selling the fresh cut flowers that she grows and gift related items.
The members’ questions established that the entrance to the business would be located on Southwestern Boulevard. Mr. Ausilio noted that this curb cut has existed for quite some time on the property. Traffic safety was discussed and signage. The Ausilios told the Board that a gravel driveway will be used that will be wide enough to accommodate a vehicle pulling in and turning around. Mrs. Ausilio told the members that she would utilize an “A frame” sandwich board type sign that will be in compliance with the ordinance. The operation of the business would be seasonal, from April to November. She told the members that no deliveries would occur with trucks as she cultivates all flowers that will be sold. The hours of operation would be from 9 a.m. until 6 p.m., or until dusk. The entrance to the residence is located on Reserve Road and would be separate from the business. Sales will occur from inside the garage door facing Southwestern Boulevard. The front yard is located on Southwestern Boulevard and is where the front yard parking would occur.
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The Chairman asked if the applicant would agree to a stipulation that there is to be no thoroughfare established between Reserve Road and Southwestern Boulevard. The applicant concurred. The Chairman noted that he does not want her to return before the Board with a request for a sign variance. Mrs. Ausilio stated that the sign she is proposing would meet the Town ordinance and that she would abide by these stipulations. It was also established that the applicant would be agreeable to have the first 30’ of the entrance into the business black topped; the remainder of the area may be gravel. Building Inspector Dave Holland told the Board that the property was zoned commercial on one side and residential on the other half.
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 Mr. Holmwood, 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. Liberti made a MOTION, seconded by Mr. Holmwood, to APPROVE the variance requests for the following reasons with STIPULATIONS:
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1. There will be no undesirable change to the character of the neighborhood. The area will be enhanced.
2. The request is not substantial.
3. There will be no adverse effect or impact on the physical or environmental conditions of the neighborhood or district.
4. The difficulty was not self-created.
The variances are granted with the following stipulations:
1. The first 30’ of the Southwestern Boulevard entrance is to black topped.
2. The business sign is to comply with the Town of Orchard Park ordinance.
3. There is to be no thoroughfare created from Southwestern Boulevard to Reserve Road.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
HOLMWOOD AYE
LENNARTZ AYE
LIBERTI AYE
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED WITH STIPULATIONS.
2. ZBA File #02-05, Albert Schlisserman, M.D., 3151 Southwestern Boulevard, Zoned B-2 (Part of Farm Lot 460, Township 10, Range 7; SBL#153.13-1-7). Requests an area variance to construct a 624 square foot detached garage. Maximum square footage for an accessory structure in a B-2 Zone is 120 square feet, Section 144-24B. Note: This variance request was granted on 10/21/03, ZBA File #45-03. In accordance with Section 144-63D(2)(d) this variance has expired.
APPEARANCE: Mr. Todd Kuczka, representing Dr. Schlisserman
Mr. Holmwood recused himself from voting in this case. The Chairman explained to Mr. Kuczka that there is not full Board representation at tonight’s meeting and that it would require all three (3) members to approve any motion that is presented, otherwise the motion will be defeated. He explained to the petitioner the options that were available to him and Mr. Kuczka stated that he would like the Board to review and vote on the variance request this evening.
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The Chairman noted that a letter is on file from Dr. Schlisserman authorizing Mr. Kuczka to represent him. Mr. Kuczka told the Board that the request is to construct a cold storage building and that no changes having been made from the original application of 10/21/03. In addition, all answers remain the same to questions that were asked during the 10/21/03 meeting. Mr. Kuczka explained to
the members that Dr. Schlisserman had not realized that the variance granted to him at that time would expire in six months and weather conditions had not allowed him to erect the building
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.
Ms. Litwin made a motion, seconded by Mr. Liberti, 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
LENNARTZ AYE
LIBERTI 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. Liberti, to APPROVE the variance request with a STIPULATION as follows:
1. The benefit cannot be achieved in any other way.
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2. There will not be an undesirable change in the character of the neighborhood or a negative impact.
The variance is granted with the following stipulation:
1. The access road to the to the new garage is to be black topped.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
LENNARTZ AYE
LIBERTI AYE
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED WITH A STIPULATION.
3. ZBA File #03-05, John & Mary Henderson, 6640 Gartman Road, Zoned A-1 (Part of Farm Lot 10, Township 9, Range 7; SBL#198.00-1-18.1). Requests an area variance to construct a 38’ x 45’ detached garage in a front yard. No accessory structures shall be located within the front yard, Section 144-24A(1)(B) Note: On 12/21/04 a variance was granted for a 30’ x 48’ garage in this front yard, ZBA File #51-04.
APPEARANCE: Mr. John Henderson, property owner
The Chairman reviewed the previous history of Mr. Henderson’s variance requests. Firstly, a variance was granted for a 30’ x 48’ garage and a year passed with it expiring. The Board understood that there had been personal problems that had created this situation. Recently, a second request was heard that involved a property line dispute with a neighbor. The Board agreed to use the survey Mr. Henderson presented and the dispute was worked out with the neighbor. In addition to this, Mr. Henderson agreed to have a shed that had been erected without a building permit removed or located in compliance with the ordinance. He also agreed to have several unlicensed vehicles on the property housed in the proposed garage when it was built.
The Chairman noted his concerns regarding Mr. Henderson’s reapplication. Mr. Henderson assured the Board that his reapplication was due to his inexperience with the process involved in constructing the proposed garage. He told the Board that his wife found the proposed building “ugly”. Therefore, a different company was contracted to erect a more attractive building with a porch. Mr. Henderson explained to the Board that the building would be slightly smaller.
The members’ questions established that there would be no problem with the placement of the building. It will be located 260 feet from Gartman Road. A stone path will lead to the porch area, which will be located over stone. No additional variances will be needed and the building will not be located any closer to the
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neighbor that had disputed the boundary. The Chairman verified with Mr. Henderson that he is confident with the proposal being presented and that he does not anticipate any need to return before the Board.
Mr. Lennartz reconfirmed with Mr. Henderson that the building would be for personal storage only and that it would not be used as a residence.
Mr. Holmwood established that the porch would be located on the north side of the building and that it would not be viewed from Gartman Road.
Mr. Liberti discussed the forest area with Mr. Henderson. Mr. Henderson told the Board that he would agree to a stipulation to not remove any more trees.
The Chairman discussed having a June 20, 2005 completion date with Mr. Henderson. Mr. Henderson stated that this was agreeable.
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 made a MOTION, seconded by Mr. Lennartz, to APPROVE the variance request with a STIPULATION as follows:
1. We accept the applicant’s survey of the property presented. The setback will be 30 feet from the property line.
2. The storage shed located in the front yard is to be either moved or destroyed. If moved, it must be located in a conforming location. The storage shed removal or relocation must be resolved by June 30, 2005.
3. The proposed garage can only be used for personal use and not for a business use.
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4. There will be no adverse effect on the environment or the neighborhood.
5. The property must be brought into compliance with all applicable zoning laws by June 30, 2005.
The variance is granted with the following stipulation:
1. The forest area immediately in front of the proposed garage parallel to Gartman Road is to be maintained.
THE VOTE ON THE MOTION BEING:
ORFFEO AYE
HOLMWOOD AYE
LENNARTZ AYE
LIBERTI AYE
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED WITH A STIPULATION.
Chairman Remy C. Orffeo adjourned the meeting at 8:50 p.m.
DATED: February 1, 2005 Respectfully submitted,
REVIEWED February 17, 2005 Rosemary Seivert, Secretary
Zoning Board of Appeals
Remy C. Orffeo, Chairman