ZBA Mtg. #4 Reg. Mtg. #4 April 18, 2006 Page 1
ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the April 18, 2006 meeting held in the Basement Public Meeting Room, S4295 South Buffalo Street.
MEMBERS PRESENT: Robert Lennartz, Chairman
Kim Bowers
Donald Holmwood Jo Ann Litwin
Richard Zajac, Alternate
EXCUSED: Joseph Liberti
OTHERS PRESENT: Andrew Geist, Building Inspector
J. Michael Wolf, Deputy Town Attorney
Rosemary Seivert, Zoning Board Secretary
The Chairman explained the procedures the Board follows for reviewing cases. He stated that an informational sheet listing the criteria the Board uses in determining if a variance will be granted or denied is available for those who would like one. The list provided to the public is attached as an addendum with the minutes.
The Chairman called the meeting to order at 7:33 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 MARCH 21, 2006 REGULAR MEETING:
The Chairman noted that the minutes form the March 21, 2006 meeting will be voted on at the next meeting as they are not available.
THE VOTE ON THE RESOLUTION BEING:
LENNARTZ AYE
BOWERS AYE
HOLMWOOD AYE
LITWIN AYE
ZAJAC AYE
THE VOTE ON THE RESOLUTION BEING UNANIMOUS, THE RESOLUTION
WAS DULY ADOPTED.
ZBA Mtg. #4 Reg. Mtg. #4 April 18, 2006 Page 2
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:
LENNARTZ AYE
BOWERS AYE
HOLMWOOD AYE
LITWIN AYE
ZAJAC AYE
NEW BUSINESS
1. ZBA File #12-06, Giancarlo Bruni, 5100 Big Tree Road, Zoned B-2 (Part of Farm Lot 39, Township 9, Range 7; SBL#160.20-1-7.1). Requests a Use Variance to proceed with a Change In Use request from Residential (Single Family) to Business (Restaurant) while living in a second house which exists on this parcel. Uses permitted in R-Districts shall not be permitted on the same lot with uses permitted in B-Districts, Section 144-20D. Note: Town Board referred a Change in Use request to the Planning and Conservation Boards on 3/15/06.
APPEARANCE: Mr. Anthony Lana, Attorney
Mr. & Mrs. Bruni, property owners and petitioners
Mr. Lana told the Board that Mr. & Mrs. Bruni purchased the property with the intention of mix use. They desire to reside in a home located at the rear and convert the house at the front into a small Italian restaurant. Mr. Lana noted that Danny’s and the Big Tree Inn restaurants in the near by area. He explained that it will be a financial hardship if the Bruni’s do not live on the property.
Mrs. Bowers established that the second house would be lived in by the Bruni’s and not be a rental property. The restaurant would be located in on the first floor of the existing home at the front of the property and the second floor will be use for storage. Mr. Bruni presented a parking plan for the
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members to review indicating that there will be 15 parking spaces and 1 handicap parking space.
Ms. Litwin established that the restaurant will be open Tuesday through Saturday, from approximately 5 to 11 p.m. There will be no lunch hours offered.
Mr. Holmwood established that there are no plans for the existing shed and that the Bruni’s may remove it.
The Chairman noted that the zoning of the area allows a restaurant business, but it does not allow residing there at the same time. He feels it is reasonable to have the owner residing on the 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.
OPPONENT:
Ms. Bauer
5039 Big Tree Road
Orchard Park, NY 14127
Ms. Bauer feels that this is a poor site for a restaurant; traffic is very busy.
The Chairman asked those interested to come forward to review the proposed plan. He stated that the process of review will involve the Conservation Board, the Planning Board and the Town Board for final approval. He directed the secretary to send a correspondence to the Public Safety Committee noting that the citizens have concerns regarding traffic.
Ms. Michele Newman
5028 Big Tree
Orchard Park, NY 14127
Ms. Newman expressed concerns regarding the increase in traffic.
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Mary Hertenstein
5017 Big Tree Road
Orchard Park, NY 14127
Ms. Hertenstein noted that the existing “Danny’s” restaurant creates traffic and she feels the situation will worsen with another restaurant in the area.
Danny’s South - “Mark”
4300 Abbott Road
Orchard Park, NY 14127
Mark told the Board that he opposes the request. He noted several businesses have ceased to exist over time and that he does not believe another restaurant is needed in this area. He also expressed traffic concerns for the area.
Ms. Bowers noted that if the applicant chooses not to reside in the home, he can still open the restaurant.
Jason Knavel
5028 Big Tree Road
Orchard Park, NY 14127
Mr. Knavel noted that any business can occupy the site. He is not in favor of granting the variance.
The Chairman stated that he understands both sides presented in this appeal. However, if Mr. Bruni opens the restaurant, tomorrow, there is nothing that can legally stop him from doing so. The zoning allows the business use. The question at hand is will we allow the couple to live on the property. A stipulation can be made to not allow the second floor of the proposed restaurant to be rented or occupied. Its use can be restricted to “storage only”. The restaurant will not be open on Sunday’s, so the Buffalo Bills football traffic will not be further impacted.
Ms. Litwin 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:
LENNARTZ AYE
BOWERS AYE
HOLMWOOD AYE
ZBA Mtg. #4 Reg. Mtg. #4 April 18, 2006 Page 5
LITWIN AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, A NEGATIVE DECLARATION IS MADE UNDER SEQR.
Ms. Bowers made a MOTION, seconded by Mr. Holmwood, to GRANT the use variance with a STIPULATION for the following reasons:
1. Strict application of the regulations will deprive the applicant of a reasonable return if they try to sell it.
2. The hardship is unique, and does not apply to a substantial portion of the district or neighborhood.
3. The variance will not alter the essential character of the neighborhood as the site previously was a business. The applicants will be residing in the back house.
4. The alleged hardship was not self-created. The applicants were under the impression that they could have mixed use for this property.
The variance is granted with the following stipulation:
1. The variance applies only to the applicant and not to a successor of the property.
2. The second floor of the proposed restaurant is not to be rented or occupied. It is to be used for storage purposes only.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
BOWERS AYE
HOLMWOOD AYE
LITWIN AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE VARIANCE IS HEREBY GRANTED WITH A STIPULATION.
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2. ZBA File #13-06, John Brinkworth and Buffalo Harley-Davidson, Inc., 140 Mid County Drive, Zoned I-1 (Part of Farm Lot 25, Township 10, Range 7; SBL#161.07-5-37.2). Requests a Use Variance to operate a motorcycle dealership at this site. Permitted uses in this I-1 Zone do not include franchised dealers and showrooms, Section 144-9A Schedule of Use Controls.
APPEARANCE: Mr. John Brinkworth, President Buffalo Harley-Davidson
Mr. Sean Hopkins, Attorney
Mr. Ed Gannon, Ciminelli Development
Mr. Hopkins gave a brief overview of the proposed project. He noted that the property is zoned for industrial use and that Building Inspector Andrew Geist feels the project does not clearly fall into that zoning classification. Mr. Geist directed the applicant to the Zoning Board of Appeals for a review and determination of the project.
Mr. Hopkins told the members that the site is approximately 5 acres; the building was built in 1983 and is approximately 40,000 square feet. The Brinkworths feel it is a perfect site for their family business. He noted that several of the Board members had visited an existing store, owned by the Brinkworths, located on Bailey Avenue in the Town of Amherst. Mr. Hopkins told the Board that the proposal is for a state-of-the-art facility with all operations indoors at the site. There will be no displays or repairs outside of the building. Is this business retail or is it industrial? Mr. Hopkins stated that is the question before the Board. He believes that the principal use is more similar to industrial. He acknowledges that there will be retail sales, but other aspects will take place at the site.
Mr. Brinkworth discussed statistics regarding sales, demographics and a market study that was performed indicating that this site is a perfect “fit” for his family’s business. He told the members that 20% of the building will be used for retail; the remaining 80% will be used for warehousing, winter storage, a machine shop, service area, collision and a repair shop.
Mr. Hopkins noted that no changes will be made to the building or parking area. Exterior upgrades may be made and the existing trees will remain. He told the Board that he feels the hardship is unique and that the character of the neighborhood will not be changed as there are other uses in the vicinity that do not fall clearly into one category of zoning. Mr. Hopkins told the Board that this is a multi-million dollar investment and approximately 25 new jobs will be created.
The members’ questions established that signage will be code compliant; the hours of operation will be Monday through Saturday from 9 a.m. to 7 p.m.;
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the existing tower on the property will be removed and the entrance to the building will remain.
The Chairman confirmed that the demographics used to determine the use of this site are as follows: The average income of a person purchasing a motorcycle is $80,000 and they are 42 years old; the base price of a motorcycle is $6,700.00; an “ultra classic” motorcycle is $22,000.00. It was also noted that a customer will visit the facility approximately 15 times per year and spend $2,500 to $3,500. He asked Mr. Brinkworth to describe test drives that will take place at the site. Mr. Brinkworth explained that demo rides are allowed on a limited basis with a specific date and time. He accompanies and leads the test drive, with the option to stop the ride if he feels it is unsafe. Mr. Brinkworth told the Board that a police escort is usually arranged for demo rides. He does not have a demo route planned at this time for the proposed location. The hours of operation at the Bailey Avenue facility are Monday through Saturday, from 9:00 a.m. to 6 p.m. During seasonal months he is open on Fridays until 7:00 p.m. During the holidays he is open on Sunday, from 12:00 p.m. to 4 p.m. Service hours are 9:00 a.m. to 5:30 p.m. The building will be air-conditioned and doors will be closed at all times.
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:
Mr. Rich Schosek
37 Auckland Avenue
Orchard Park, NY 14127
Mr. Schosek is against the variance request. He noted noise concerns from the motorcycles. Mr. Brinkworth stated that this issue is presently being addressed by the factory, which plans to cease manufacturing louder exhausts.
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The Chairman reconfirmed that outside demos will be held in a controlled environment; the service area is not open late at night and test drives will be scheduled and not occur at random times. The Chairman noted that he had visited the Bailey Avenue store and had observed that it was a nice store and a good portion of the store is used for storage.
The Chairman then asked if the Secretary had received any additional communications either for or against granting the variance.
The Secretary stated that no communications have been received.
Ms. Bowers 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:
LENNARTZ AYE
BOWERS AYE
HOLMWOOD AYE
LITWIN AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, A NEGATIVE DECLARATION IS MADE UNDER SEQR.
Ms. Litwin made a MOTION, seconded by Mr. Zajac, to GRANT the variance request for the following reasons:
1. Strict application of the regulations will deprive the applicant of a reasonable return on the property.
2. The hardship is unique, and does not apply to a substantial portion of the district or neighborhood.
3. The variance will not alter the essential character of the neighborhood.
4. The alleged hardship was not self-created.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
BOWERS AYE
HOLMWOOD AYE
ZBA Mtg. #4 Reg. Mtg. #4 April 18, 2006 Page 9
LITWIN AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE VARIANCE IS GRANTED.
3. ZBA File #14-06, Sachel Development L.L.C., Vacant Land at 3515 Abbott Road, Zoned B-2 (Part of Farm Lot 30, Township 10, Range 7; SBL#161.05-1-1.1). Requests a variance to allow vehicle parking in the front yard of a proposed retail business. Vehicle parking is prohibited in the front yard of this B-2 Commercial Zone, Section 144-29 A(4).
APPEARANCE: Mr. Bob Garner, Walton Architectural
The Chairman confirmed that a letter was submitted authorizing Mr. Garner to represent Mr. Zimmer, owner of Sachel Development.
Mr. Garner explained to the Board that the site is restricted due to being a corner property. In order to meet the parking requirements, three (3) parking spaces are being proposed to be located in the front yard of the property. He told the members that the project has received Conservation approval for the submitted landscaping plan.
The members’ questions concluded with the Chairman noting that he recommends that the Planning Board look at the traffic in the area and have the Public Safety Committee review this site. He believes the site is difficult to access. Mr. Garner told the Board that there are two entrances into the site. He also discussed the drainage of the 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.
OPPONENT:
Tony Turton
1786 Berg Road
Orchard Park, NY 14127
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Mr. Turton noted that he is opposed to the granting of the variance because his variance request for a shed was not approved. The Chairman noted that this is not relevant to the request being made before the Board.
The Chairman then asked if the Secretary had received any additional communications either for or against granting the variance.
The Secretary stated that no communications have been received.
Mr. Holmwood made a motion, seconded by Ms. Bowers, 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:
LENNARTZ AYE
BOWERS AYE
HOLMWOOD AYE
LITWIN AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, A NEGATIVE DECLARATION IS MADE UNDER SEQR.
Ms. Litwin made a MOTION, seconded by Mr. Holmwood, to GRANT the variance request for the following reasons:
1. There will be no undesirable change to the character of the neighborhood.
2. The request is not substantial; the way the lot and building are positioned makes it difficult to create proper parking required for the site.
3. There will not be an adverse effect or impact on the physical or environmental conditions of the neighborhood or district.
4. The difficulty was not self created, the problem exists from the site being a corner lot.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
BOWERS AYE
ZBA Mtg. #4 Reg. Mtg. #4 April 18, 2006 Page 11
HOLMWOOD AYE
LITWIN AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE VARIANCE IS GRANTED.
4. ZBA File #15-06, Tian C. Zhang, 29 Grand View Trail, Zoned A-1 (Sub Lot 10, Map Cover 2722; SBL#185.17-1-10). Requests an Area Variance to continue
construction on a single family dwelling with a combined side setback of 72.9’. Minimum combined side setback for this A-1 lot is 80’, Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations. Note: on 5/17/05 a variance was granted for a 78’ combined side setback. ZBA File #28-05.
APPEARANCE: Mr. Tian Zhang, property owner and petitioner
Mr. Tom Welch, builder
Mr. Welch told the Board that the home was built incorrectly and is twisted slightly to the right. He feels the mistake will not create a negative impact on the area.
The members’ questions established that human error is responsible for the mistake.
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 that no communications have been received.
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Ms. Bowers made a MOTION, seconded by Mr. Holmwood, to GRANT the variance request for the following reasons:
1. There will be no undesirable change to the character of the neighborhood, it can hardly be notice.
2. The benefit cannot be sought in another way.
3. The request is not substantial.
4. There will be no 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:
LENNARTZ AYE
BOWERS AYE
HOLMWOOD AYE
LITWIN AYE
ZAJAC NAY
THE VOTE ON THE MOTION BEING FOUR (4) IN FAVOR, AND ONE AGAINST, THE MOTION IS HEREBY PASSED.
5. ZBA File #16-06, Orchard Park Properties, 15 Province Town Lane, Zoned R-3 (Part of Farm Lot 16, Township 10, Range 7; SBL#152.20-4-17). Requests an area variance to add patios/decks to the front of (9) apartment buildings which will reduce existing front setbacks by 8’. No setback, if already less than the minimum required, shall be further reduced, Section 144-14.
APPEARANCE: Ruth Cummings, Corporate Secretary Orchard Park Properties
Mike Cryon, contractor
Ms. Cummings explained the site plan for the proposed project. She told the members that they desire to install patios on the first floors and balconies on the second floors and add architectural interest to the fronts of nine existing buildings. She does not feel there will be a negative impact on nearby properties and these improvements will increase the value of the buildings and provide prospective residents with increased living space that they can enjoy. There will be no environmental impacts related to this project. The nine buildings were constructed in the late 1960’s and they would like to
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update the ascetics of the buildings. The 9 acre site has 6.5 acres of green space area.
The Board members discussed the project and told the applicant that they do not want the front area of the buildings to look cluttered and would like to limit what is placed on the patios and balconies. Ms. Cummings told the Board that there is a limit of “two chairs with an umbrella and that sort of thing; at the rear, balconies may have awnings”. She further stated that there is a restriction with having grills. It was learned that the additions will not be enclosed; however the applicant described the use of side drops and awnings that are not permanently installed. The project will be accomplished by converting the first floor windows into doors; the second floor windows will be converted to man doors with a side light and windows over the entranceway.
The Chairman would like assurance from the applicant that rules will be enforced so the area will not look cluttered. Ms. Cummings told the Board that she is willing to abide with conditions the Board suggests. She stated that they have good relations with their tenants and she does not believe there will be a problem in having them abide with conditions. She further noted that the use of wrought iron, rather than wood, at the front will allow the area to be more open.
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 that no communications have been received.
Ms. Litwin 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:
LENNARTZ AYE
BOWERS AYE
HOLMWOOD AYE
LITWIN AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, A NEGATIVE DECLARATION IS MADE UNDER SEQR.
Ms. Litwin made a MOTION, seconded by Mr. Zajac to GRANT the variance request with a Stipulation based on the following:
1. There will be no undesirable change to the character of the neighborhood.
2. The benefit cannot be sought in another way.
3. The request is not substantial.
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 variance is granted with the following stipulation:
1. There are to be no supports installed for awnings or side drops. The applicants are to do their best to keep the area open.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
BOWERS AYE
HOLMWOOD AYE
LITWIN AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE VARIANCE IS HEREBY GRANTED.
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There being no further business to be presented to the Board at this time, the Chairman, Robert J. Lennartz adjourned the meeting at 9:14 p.m.
DATED: May 12, 2006 Respectfully submitted,
REVIEWED: May 16, 2006 Rosemary Seivert, Secretary
Zoning Board of Appeals
Robert J. Lennartz, Chairman
ZONING BOARD OF APPEALS
RULES FOR GRANTING OF VARIANCES
CHAPTER 692, LAWS OF 1991
An applicant for a Use Variance must demonstrate that the zoning has caused an unnecessary hardship and must show that:
Strict application of the regulations will deprive the applicant of a reasonable return on the property, provided that lack of return is substantial as demonstrated by competent financial evidence.
The hardship is unique, and does not apply to a substantial portion of the district or neighborhood.
The variance will not alter the essential character of the neighborhood.
The alleged hardship was not self-created.
The Board must balance two elements: (1) the benefit to the applicant, and (2) the detriment to the health, safety and welfare of the community or neighborhood that would occur as a result of granting the v