ZBA Mtg. #11 Regular Mtg. #10 October 26, 2006 Page 1
ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the October 26, 2006 meeting held in the Basement Public Meeting Room, S4295 South Buffalo Street.
MEMBERS PRESENT: Robert Lennartz, Chairman
Kim Bowers
Joseph Liberti
Jo Ann Litwin
Richard Zajac, Alternate
EXCUSED: Donald Holmwood
J. Michael Wolf, Deputy Town Attorney
OTHERS PRESENT: David Holland, Building Inspector
Leonard Berkowitz, Town Attorney
Rosemary Seivert, Zoning Board Secretary
The members recited the Pledge of Allegiance and the Chairman called the meeting to order at 7:28 P.M., stating that if anyone appearing before the Board is 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 AUGUST 15TH AND SEPTEMBER 19TH, 2006 REGULAR MEETINGS AND OCTOBER 2, 2006 SPECIAL MEETING:
Upon a motion duly made and seconded, the reading of the minutes of the August 15th and September 19th, 2006 and the special October 2, 2006 Zoning Board of Appeals meetings were unanimously waived as each Board Member had previously received copies.
Ms. Litwin made a MOTION, seconded by Ms. Bowers, to ACCEPT the minutes of the August 15th, September 19th, 2006 and special October 2, 2006 meetings as presented.
The Chairman stated that tonight’s meeting date was rescheduled from October 17th to October 26th due to the failure of the agenda to be published in the official town newspaper “The Southtowns Citizen”. The Chairman apologized to the applicants. The editor of the “The Southtowns Citizen”, Mr. John Hakes was present. He told those present that the problem occurred at the “The Southtowns Citizen”, wherein, the staff had failed to post the legal notice. He apologized for any inconvenience created.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
BOWERS AYE
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
THE VOTE IS UNANIMOUSLY PASSED.
ZBA Mtg. #11 Regular Mtg. #10 October 26, 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
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
NEW BUSINESS
1. ZBA File #39-06, John O’Neil, 6 Winterhall Road, Zoned R-1 (Sub Lot 47, Map Cover 2465; SBL#173.07-4-32). Requests an area variance to construct a shed with a 4 foot side setback. Minimum side setback for this R-1 lot is 15 feet, Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.
APPEARANCE: Mr. & Mrs. John O’Neil, applicant & property owner
Mr. O’Neil presented photos of his property to the members and explained that he would like to construct a storage shed. He told the Board that the proposed location will enable him to have full usage of his backyard. He stated that he had discussed the proposed shed’s location with his neighbors and no one voiced an objection.
Ms. Bowers re-verified that Mr. O’Neil spoke to his neighbors regarding the proposed shed’s location.
Mr. Liberti established that Mr. O’Neil spoke to approximately six (6) neighbors; however, he did not obtain an affidavit or petition signed by the neighbors he spoke to, confirming that there were no objections. Mrs. O’Neil told the Board that there are other sheds in the neighborhood.
The Chairman established that the shed will be for storage purposes.
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 that no communications have been received.
Ms. Bowers made a MOTION, seconded by Ms. Litwin to GRANT the variance request for the following reasons:
1. There will be no undesirable change to the character of the neighborhood.
2. The benefit sought can be achieved in another way other than the granting of the variance; however, that does not preclude the granting of the variance.
3. The request is not substantial.
4. There will be no adverse effect or impact on the physical or environmental conditions of the neighborhood.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
BOWERS AYE
LIBERTI NAY
LITWIN AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING FOUR (4) IN FAVOR AND ONE (1) AGAINST, THE MOTION IS HEREBY PASSED.
2. ZBA File #40-06, Peter Bruin, 4154 South Taylor Road, Zoned I-1 (Part of Farm Lot 23, Township 9, Range 7; SBL#161.19-2-3.1). Requests a variance to allow a 70 foot x 19 foot lean-to storage structure along an existing fence line to remain. Maximum size of accessory structures in this I-Zone is 120 square feet, Section 144-24B.
APPEARANCE: Mr. Peter Bruin, applicant and property owner
Mr. Bruin explained to the Board that a neighbor expressed concerns regarding items he stores outside on the south side of his commercial property. Mr. Bruin told the Board that he constructed a lean-to block the view of the items; however he neglected to apply for a permit.
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Ms. Bowers discussed the fact that Mr. Bruin constructed a lean to and not a shed to store the items. Mr. Bruin told the Board that he wants his property to appear tidy and neat. He stated that his neighbors and passersby’s on the 219 expressway can no longer view items left outside on the site.
Mr. Zajac questioned why Mr. Bruin did not follow the proper channels. Mr. Bruin told the members that he just wanted to “hide the stuff”. He stated that he feels bad that he did not apply for the permit and he told the Board that he would not make this mistake in the future. He further stated that he feels he has always been a good citizen. Mr. Zajac stated that he feels the site looks good.
The Chairman verified that the storage area will be for car parts only; nothing flammable will be stored there. Mr. Bruin noted that during the winter a tarp will be used.
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. 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:
LENNARTZ AYE
BOWERS AYE
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS PASSED.
Mr. Zajac made a MOTION, seconded by Ms. Litwin to GRANT the variance request for the following reasons:
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1. There will be no undesirable change to the character of the neighborhood.
2. The benefit sought cannot be achieved 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 or district.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
BOWERS AYE
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS PASSED.
3. ZBA File #41-06, Gregory Schneider for Enidine, Inc., 7 Centre Drive, Zoned I-1 (Part of Farm Lot 31, Township 9, Range 7; SBL#161.19-1-2). Requests a variance to expand parking into the front yard. Vehicle parking is prohibited in the front yard in this I-1 Zone, Section 144-29A(4).
APPEARANCE: Mr. Gregory Schneider, Aurora Architectural
Mr. Dennis Scully, Enidine, V.P. Engineering & Operations
Mr. Scully presented plans for a proposed warehouse addition and told the Board that they would also like to expand the parking area as the current parking is not adequate for their workforce; the parking situation will worsen with their projected growth plan.
Mr. Schneider explained the uniqueness of the site to the Board. He stated that 48% of the building site is located in what is, essentially, the front yard. The location of the proposed parking spaces is based on the existing drainage of the site and the future location of a storm water detention area. He noted that it is also the ideal parking location for visitors and staff parking.
Mr. Liberti established and that the project will appear before the Conservation Board for review of a proposed landscaping plan. Mr. Schneider told the Board that he believes three (3) existing trees may be removed during the expansion.
Mr. Zajac discussed the applicant’s increase in the number of parking spaces. Mr. Schneider told the Board that the total number of parking spaces for the project will total to 261; this meets the town requirement, based on the existing building’s square footage and the proposed 10,000 square foot addition. There are presently 214 parking spaces and they propose to add 47 new spaces.
The Chairman noted that the applicant has given a good, solid presentation.
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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.
(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. Bowers made a motion, seconded by Ms. Litwin, 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, THE MOTION IS PASSED.
Ms. Litwin made a MOTION, seconded by Mr. Zajac to GRANT the variance requests for the following reasons:
1. There will be no undesirable change to the character of the neighborhood.
2. The benefit sought cannot be achieved 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 or district.
5. The difficulty is not self created; this is a growing business and it is a positive move.
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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, THE MOTION IS PASSED.
4. ZBA File #42-06, Philip Silvestri for Lebex Holdings, LLC., Vacant Land East side of Taylor Road, Zoned R-3 (Part of Farm Lot 24, Township 9, Range 7; SBL#161.00-3-26). Requesting area variances to construct a townhouse project. First, to reduce the 75 foot required building setback to property lines, Section 144-9(B), Schedule of Height, Lot, Yard & Bulk Regulations. Second, to reduce the setback to the right-of-way of the private roads and the distance between buildings. Minimum setback from the right-of-way of a private road is 50 feet. Minimum distance between buildings is 60 feet, Section 144-46C(4)(a). Third, to reduce the setback to driveways and parking lots. Minimum setback to a driveway or parking lot is 25 feet from the front of a building, Section 144-46C(4)(6).
APPEARANCE: Mr. Sean Hopkins, Attorney
Mr. Carmine Provenzano, Silvestri Architects, P.C.
Mr. Joseph Waldman, Lebex Holdings, LLC
Mr. Hopkins distributed information regarding the proposed project to the Board members. In 2003 the previous project sponsor, Mr. Dennis Boyle, proposed to develop the 18 acre site with 88 units. At that time, Mr. Boyle agreed to reduce the number of units to 80 and was granted several variances. These variances have since expired. Mr. Hopkins noted that some of the members of the Board that reviewed the Dennis Boyle project are on the current Board. Mr. Hopkins told the members that this is a similar project with several minor changes. The new project sponsor, Lebex Holdings, LLC represented by Mr. Joseph Waldman. Mr. Waldman proposes to develop 15 acres of the site and construct 68 units. Each unit will be comprised of four townhouses. It was also learned that the three (3) remaining acres of the original site were sold to Mr. Elliot Lasky, the developer of the adjacent property (Pleasant Acres West) for infrastructure purposes.
The project site is bordered by Mr. Lasky’s proposed subdivision, Pleasant Acres West on the east, Route 219 is on the west and the north is a residential/commercial area. Taylor Road borders the south side of the project and one of the buildings was re-located to aid in minimizing the impact on the wetlands. Mr. Hopkins told the Board that the density of the project is 4.5% and that this is below the maximum density allowed by the Town Code. He explained to the Board that the building code allows eight-unit buildings to be built in this R-3 Zone and he believes less variances would be needed. However, he feels the project, as it is being proposed, is ascetically more desirable in terms of the building layout. There will also be a total green space area of 66%. He further told the Board that the existing traffic study will most likely be updated in the future.
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The original project proposed two access points onto Taylor Road; this is no longer possible, due to Mr. Lasky’s purchase of the three (3) acres. Mr. Hopkins told the Board that the roadway connecting onto Taylor Road has been made wider than what is required by the ordinance and that the site line distance exceeds the N.Y.S. D.O.T. standard of 440 feet. To the north it is 700 feet; to the south it is 500 feet.
The Board members discussed the variances being requested at length. The Chairman questioned what hardship the applicant feels he has and why a full Environmental Impact Statement for a project this large was not submitted. Mr. Hopkins told the members that this is not a Type 1 action and that the submitted Long EAF is appropriate. He also noted that the project is subject to the jurisdiction of the Army Corps of Engineers and the NYS Department of Environmental Conservation. Less than ½ acre of the wetlands area will be impacted and mitigation will occur on the site.
Ms. Litwin stated that she feels that the variance requests are numerous and that, essentially, the applicant is requesting a change in the zoning.
Attorney Leonard Berkowitz noted that he feels the numerous variance requests amount to the creation of a new zone. He referred to the “CMO” (Conservation Management Overlay) that is currently being discussed by the Town Board and suggests that the applicant consider that option and see if it applies to this project. Mr. Hopkins questions if the CMO solely applies to residential subdivisions or to multi-family development. Mr. Berkowitz stated that it may. He feels this is an attractive project for a difficult piece of property; single family homes being built adjacent to the 219 is not likely. However, he noted that it is entirely up to the Zoning Board of Appeals members if they wish to vote upon this matter or not.
Mr. Hopkins noted that although this is not the same Board, the variances were previously approved for the identical project. Ms. Litwin stated that this proposal is not identical to the Boyle project presented to the Board in 2003. Ms. Litwin noted that she has issues with one ingress/egress, the number of units and she further stated that she would not consider living here. Ms. Litwin would like a full DEIS prepared for the project.
Ms. Bowers stated that she agrees with Ms. Litwin. She resides in a home located off of Taylor Road and she would be nervous with the street traffic using one access road into and out of the site onto Taylor Road. Mr. Hopkins noted that the applicant would submit an updated traffic study and have an expert attend the meeting to discuss the Board’s concerns regarding traffic safety.
Mr. Zajac noted that he feels the request is beyond the scope of the Board due to the numerous variance requests. He stated that he feels the Board usually grants single variance requests based on an individual basis. This request is for multiple, multiple variances; if they are granted he feels the Zoning Board of Appeals will be creating a new ordinance. He does not believe the Zoning Board of Appeals can create ordinances, nor does he believe the Board can act on the requests.
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Mr. Hopkins asks that the Board table the request. He would like the opportunity to return with a traffic engineer to answer the Board’s questions. He noted that with regards to the fact that the request is for more than one variance, New York State law is very clear; you must review the evidence on both sides, not the number of variances, and then make a decision.
The Chairman stated that he does not believe the request will pass with a vote. However, he would like to be accommodating. He, too, has concerns with the single access. Mr. Hopkins stated that he will explore the possibility of having a second access with Mr. Lasky and also widening the roadway further
The Board concluded that the would like an updated traffic study submitted; that the applicant shall pursue a secondary access way into the site; that information should be provided regarding the widening of the roadway; that a review the “CMO” draft should be performed by the applicant to determine if it can be applied to this project; and that further environmental considerations should be reviewed.
The Chairman made a MOTION, seconded by Ms. Litwin to TABLE the case for the following reasons:
1. The applicant is to address environmental issues that were discussed.
2. The applicant is to address the widening of the roadway.
3. The applicant shall pursue the possibility of having a second entrance way.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
BOWERS AYE
HOLMWOOD AYE
LITWIN AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS PASSED.
There being no further business to be presented to the Board at this time, the Chairman adjourned the meeting at 8:43 p.m.
DATED: November 17, 2006 Respectfully submitted,
REVIEWED: November 20, 2006 Rose Seivert, Secretary
Zoning Board of Appeals
Robert J. Lennartz, Chairman