Match 15, 2005

ZBA Mtg. #3 Reg. Mtg. #3 March 15, 2005 Page 1

ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the March 15, 2005 meeting held in 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 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 JANUARY 18, 2005 AND FEBRUARY 1, 2005 REGULAR MEETINGS:

A motion was made by Mr. Dietriek, seconded by Mr. Lennartz, to accept the minutes of the January 18, 2005 and February 1, 2005 meetings and the reading of these minutes are hereby dispensed with as each member of the Board has 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.

ZBA Mtg. #3 Reg. Mtg. #3 March 15, 2005 Page 2

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 #13-05, James Rumsey & Benderson Development, Vacant Land, Zoned B-2 (Part of Farm Lot 459, Township 10, Range 7; SBL#153.13-1-6.2). Requests a variance to allow vehicle parking in the front yard of a proposed multi-tenant building. Vehicle parking areas are prohibited in the front yard in a B-2 Commercial Zone, Section 144-29A(4).

APPEARANCE: James Rumsey, Architect

Mr. Rumsey distributed copies of the proposed site plan to the members. He explained to the members that Benderson Development would like to construct a 7,500 sq.ft. retail building adjacent to the Lowe’s property, located at the “Five Corners Plaza”. They are requesting a variance for front yard parking to be able to locate approximately 12 parking spaces. The remaining parking spaces (approximately 73) will be located at the rear of the building. Mr. Rumsey told the Board that he feels that the character of the neighborhood would not be altered and that the proposed project is consistent with the commercial development of the area.

The members reviewed the plan with Mr. Rumsey and it was established that four proposed handicapped parking spaces would be located along side the western side of the building and that the remaining eight parking spaces would be located at the front. It was acknowledged that the Planning Board will review the project and make a recommendation to the Town Board regarding the number of parking spaces that they deem appropriate. The Chairman noted that the plan submitted differs slightly from the plan originally submitted. Mr. Rumsey confirmed that the plan he distributed to the Board accurately represents the request. The Chairman discussed drainage concerns with Mr. Rumsey, noting that the Engineering Department has not yet reviewed the project. He noted that the proposed parking spaces located in the front might have to be eliminated if the area is needed to resolve drainage issues.

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.

OPPONENT:

Mrs. Mary Mulawka

3131 Southwestern Blvd.

Orchard Park, NY 14127

Mrs. Mulawka told the members that she would like to have a privacy fence installed. She told the members that her home and her privacy are affected by the businesses that have evolved over the years. She told the Board that vast amounts of litter accumulate on her property from the newly built “Five Corners Plaza” tenants.

Mrs. Mulawka’s daughter

3131 Southwestern Blvd.

Orchard Park, NY 14127

Mrs. Mulawka’s daughter described to the members how litter from the “Five Corners Plaza” accumulates on her parents’ property. She also told the Board about an incident involving an individual behind her parents’ home. She would like a privacy fence installed, based on these situations; whether it is the Town of Orchard Park, Benderson Development or Lowe’s, who install it.

The Chairman suggested that the Mulawkas have these concerns addressed during the Planning Board’s site plan review. Mrs. Mulawka stated that she would contact the Planning Department. He also requested that Benderson Development contact Mrs. Mulawka directly to address her concerns.

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 the petitioner’s request is not substantial. However, Mr. Lennartz stated that it is disappointing to him to learn that a major developer is allowing trash to blow around and collect on a residential property. Mr. Lennartz would like a correspondence sent to Benderson Development and Lowe’s asking that they respect the friendliness of the area and the residential neighbor and have the issue of the trash on the site addressed. He further noted that he would like to be sure that the drainage plan is acceptable. Mr. Dietriek stated that he concurs with Mr. Lennartz’s comments.

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.

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THE VOTE ON THE MOTION BEING:

ORFFEO AYE

DIETRIEK AYE

HOLMWOOD AYE

LENNARTZ AYE

LIBERTI 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 APPROVE the variance request with a STIPULATION, based on the presented site plan dated 10/10/04 initialed by the Chairman, 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 effect on the neighborhood.

5. The difficulty was self-created, but this does not preclude approval.

The variance is granted with the following stipulation:

1. Approval is conditional upon Engineering approval of the drainage plan.

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.

2. ZBA File #14-05, Tom & Lynn Wesolowski and Pace Enterprises LLC. Vacant Land on the south side of Elmtree Road, Zoned R-3 (Sub Lot #’s 332 & 333, Map Cover 927; SBL#172.05-3-22.1 & 172.05-3-23). Requests an area variance to construct a two family dwelling on these lots, which when combined will be 80’ x 120’ with 9,600 sq. ft. of lot area. Minimum lot size required is 100’ x 150’ with 16,000 sq. ft. of lot area, Section 144-9B, Schedule of Height, Lot and Bulk Regulations.

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APPEARANCE: Mr. David Pace, Pace Enterprises

Mrs. Ruth Pace, Pace Enterprises

Mrs. Pace presented plans for a proposed two story, 2-family home, commonly known as “a double”. Mrs. Pace does not feel the character of the neighborhood will be changed, as a duplex exists adjacent to this Elmtree Road site on Dorchester Avenue. In addition, other duplexes are located on the street. This property has been for sale for several years and has become a “hang-out” for teenagers. For these reasons the owner has decided to develop the property and construct two rental units. The property owner will not be residing here. The proposed 2-family home will have the appearance of a single family home. The property owner, Ms. Wesolowski is present to answer the Board’s questions.

Several members expressed concerns regarding the size of the proposed double home and the frontage of the property. The applicants told the members that they feel that the proposed home will fit aesthetically with the existing neighborhood. However, several of the members did not share this belief. The applicants told the Board that they could not redesign the footprint of the proposed double home and that Ms. Wesolowski chooses to not construct a single family home, preferring to have two rental units. It was also learned that a detached two-car garage would be constructed and located on the side of the property in the future. Building Inspector David Holland told the Board that locating a 2-car garage (accessory structure) on the side of the property would not be a problem.

Mr. Lennartz discussed his feelings regarding Ms. Wesolowski’s choice to develop her property with two rental units, versus having a single family home constructed. Ms. Wesolowski responded to Mr. Lennartz comments, noting that she had been unable to sell the lot through a realtor or by herself. The proposal to construct a double home was simply another avenue open to her in marketing the property.

Mr. Dietriek established that the property is zoned for a two-family home. However the applicant does not meet the minimum width and depth requirements. Changing the footprint of the proposed double home will not solve the problem. Mr. Dietriek noted that the only relief is to build a single-family home.

The Chairman stated that he feels the request is substantial. He further stated that the lot is too small for the proposed two-family double home. A two-family double home will create more density in this small area. He also finds the proposed living areas to be “small”. In addition, based on past experiences involved with duplexes, he has found that when a property is not “owner occupied” problems occur that diminish the property’s value. Mr. Pace and the Chairman discussed the issue of density. The Chairman concluded that two families living on this property will affect the density of the area, even if the two-family double home has less lot coverage than a single family home.

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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:

Gregory Acker

92 Elmtree Road

Orchard Park, NY 14127

Mr. Acker told the Board that he lives adjacent to the site and also owns the property behind this lot. He told the Board that there is no garbage dumped on this property and that teenagers do not congregate. It is a wooded, quite natural lot. He feels that the site is too small for the proposed project and that having two families living on the property will cause additional problems for the neighborhood. Mr. Acker told the Board that he had wanted to purchase the property but that he felt the asking price was too high.

The Chairman read two correspondences that had been received against the granting of the variance (100 Elmtree and 93 Elmtree) and these have been entered into the permanent file.

Mr. Dietriek noted that he believes that the request will have an undesirable impact on the neighbors living on Elmtree. The members concluded that parking will be a problem and that the request is substantial.

Mr. Dietriek made a MOTION, seconded by Mr. Lennartz, to DENY the variance request for the following reasons:

1. There will be an undesirable change in the character of the neighborhood.

2. There will be a detriment to the nearby properties.

3. The benefit might be limited but it could be sought in another way.

4. The request is substantial.

5. There will be an adverse impact on the physical or environmental conditions of the neighborhood, as pointed out by one neighbor.

6. The difficulty was not self-created, but this does not apply in this case.

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THE VOTE ON THE MOTION BEING:

ORFFEO AYE

DIETRIEK AYE

HOLMWOOD NAY

LENNARTZ AYE

LIBERTI AYE

THE VOTE ON THE MOTION BEING FOUR (4) IN FAVOR OF DENIAL AND ONE (1) AGAINST, THE MOTION IS HEREBY PASSED TO DENY THE VARIANCE.

3. ZBA File #15-05, Dominic Piestrak & Alliance Homes, 47 Birdsong Parkway, Zoned R-1 (Sub Lot 74, Map Cover 3207; SBL#173-12-1-24). Requests an area variance to construct a single family dwelling with a lot coverage area of 15%. Maximum lot coverage for this R-1 lot is 12%, Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.

APPEARANCE: Mr. Nick Piestrak, developer

Mr. Andy Romanowski, Alliance Homes

The Chairman verified that Mr. Piestrak had understood the Board’s policy regarding variance requests for the Birdsong Subdivision that had been set during a prior Zoning Board meeting. This policy dictated that Mr. Piestrak was not to reappear before the Board for a variance request in a particular area of the Birdsong Subdivision (next to Fox Chapel) and to not seek further variances along Birdsong Parkway, where several variances had been granted. In addition, requests close to or exceeding 15% lot coverage would most likely to be denied by the Board.

Mr. Piestrak told the Board that he left the February 1, 2005 Zoning Board meeting with the intention of honoring his commitment made to the Board. He explained to the Board that he had not known that a problem would develop for this particular lot. He apologized to the Board, noting that he did not take the Board’s position lightly regarding variance requests within the Birdsong subdivision.

Mr. Romanowski of Alliance Homes explained the history of the proposed home to the Board. The future homeowner, Mr. Cichocki had finalized the plans for this home over a year ago. However, the location of the home was switched to a different lot and this change created a delay in knowing that there would be a problem with the lot coverage. He told the members that having a covered front porch and a bump out area makes the proposed home exceed the lot coverage. Although adjustments could be made to reduce the lot coverage closer to 14%, the covered porch is aesthetically important to the look of the home and the character of the neighborhood. Mr. Romanowski told the Board that he is constructing several other homes in this subdivision and that no variances are needed. He respects the lot coverage requirement and will make a point to have all future clients adhere to the 12% lot coverage.

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Mr. Dietriek discussed with the applicants his concerns regarding the fact that they have returned within 40 days of the last variance request. He noted that the Board had been serious about not exceeding 15% lot coverage.

Mr. Lennartz expressed his concerns regarding the variance request, noting that he did not want it to appear that a new standard is being set for lot coverage. Mr. Piestrak explained that he understands that the lot coverage is 12%. The main reason this problem evolved is because the road had to be moved over and that caused this section of the subdivision to be squeezed in. In the rest of the subdivision the 12% lot coverage is not an issue and there will be no further variance requests for lot coverage in this particular area of the Birdsong Subdivision. He would like the variance granted to allow this site to be consistent with the look of the immediate area. In the future individuals will be told not to buy a lot if their home exceeds the lot coverage requirement.

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

Mr. Ron Cichocki

Provincetown Apartments

Orchard Park, NY 14127

Mr. Cichocki stated that he is in favor of the request. He told the Board that the covered porch was essential to the look of the home and the aesthetics of the neighborhood and gave a brief explanation as to how this problem evolved.

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 that he believes that the applicant is acting in good faith and that he will give him the benefit of the doubt. He believes that if Mr. Piestrak had known of the problem, this case would have been on the February 1^st agenda.

Mr. Dietriek stated that he believes the applicants are acting in good faith and he supports the request.

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The Chairman made a MOTION, seconded by Mr. Liberti, to GRANT the variance for the following reasons:

1. There will be no undesirable change in the character of the neighborhood.

2. The benefit could be sought or achieved in some other way, the applicant has presented, by both time line and case, that he was caught in circumstances beyond his control.

3. The request could be considered substantial, but given the nature of Birdsong, it is not overly substantial.

4. There will be no adverse effect or impact on the environmental conditions of the neighborhood.

5. The difficulty was self-created, however that does not preclude the granting of the variance.

Addendum to motion: The developer and the builder present both understand our position on exceeding the 12% lot coverage requirement.

THE VOTE ON THE MOTION BEING:

ORFFEO AYE

DIETRIEK AYE

HOLMWOOD AYE

LENNARTZ AYE

LIBERTI AYE

THE VOTE ON THE MOTION BEING UNANIMOUS, THE VARIANCE REQUEST IS

APPROVED.

4. ZBA File #16-05, Natale Building Corp., 42 Birdsong Parkway, Zoned R-1 (Sub Lot #1, Map Cover 3207; SBL#173.12-1-1). Requests an area variance to continue construction on a single family dwelling with a 56.52’ front setback. Minimum front setback for this R-1 lot is 60’, Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.

APPEARANCE: Mr. William Schneider

Mr. Schneider explained to the members that an error in the field created the need for a front yard setback variance.

The members’ questions established that the curvature in the road was snow covered when the stakes were put in for the construction of the home. Construction began and the mistake was not realized until the curb was exposed.

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Building ceased when the mistake was discovered. Mr. Schneider noted that this is the second problem of this nature for Natale Builders; the other occurred at 7 Woodthrush.

The Chairman noted that Building Inspector David Holland explained the situation to the members and that it is the Board’s consensus that this is an honest mistake. There was nothing to gain by having the home located 2-ft. forward. Further, the mistake is not easily noticed.

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 told Mr. Schneider that it was a positive action taken by Natale Builders to stop the construction work at the site when the error had been realized.

Mr. Liberti made a MOTION, seconded by Mr. Holmwood, to GRANT the variance request for the following reasons:

1. There will be no undesirable change in the character of the neighborhood.

2. The request is not substantial.

3. The difficulty was self-created, but that does not preclude the granting of the variance.

4. There will be no adverse effect or impact on the physical or environmental conditions of the neighborhood.

ZBA Mtg. #3 Reg. Mtg. #3 March 15, 2005 Page 11

THE VOTE ON THE MOTION BEING:

ORFFEO AYE

DIETRIEK AYE

HOLMWOOD AYE

LENNARTZ AYE

LIBERTI AYE

THE VOTE ON THE MOTION BEING UNANIMOUS, THE VARIANCE REQUEST IS

APPROVED.

OTHER BUSINESS:

Mr. Lennartz spoke regarding the progress of the Scenic Byways Committee. He told the Board that the first part of his application to the State D.O.T. would be delivered within the next several days and that it consists of an inventory of the positive aspects of Route 219, divided into 4 unique tour groups.

He thanked the Board for their solid support.

Chairman Remy C. Orffeo adjourned the meeting at 9:30 p.m.

DATED: April 4, 2005 Respectfully submitted,

REVIEWED: April 5, 2005 Rosemary Seivert, Secretary

Zoning Board of Appeals

Remy C. Orffeo, Chairman