ZBA Mtg. #9 Reg. Mtg. #9 September 19, 2006 Page 1
ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the September 19, 2006 meeting held in the Basement Public Meeting Room, S4295 South Buffalo Street.
MEMBERS PRESENT: Jo Ann Litwin, Acting Chairwoman
Kim Bowers
Donald Holmwood
Joseph Liberti
Richard Zajac, Alternate
EXCUSED: Robert Lennartz, Chairman
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 Acting Chairwoman called the meeting to order at 7:35 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 AUGUST, 2006 REGULAR MEETING:
Acting Chairwoman Jo Ann Litwin noted that the minutes were not available and that they will be voted on at another time.
The Acting Chairwoman 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 Acting Chairwoman stated that site inspections of all cases presented tonight were made by:
BOWERS AYE
HOLMWOOD AYE
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
NEW BUSINESS
1. ZBA File #33-06, DeMarco’s Pizza, 3187 Abbott Road, Zoned B-2 (Sub Lot’s 701 & 702, Map Cover 956; SBL#151.16-2-40). Requests a variance to install a pedestal sign
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with a 6 ft. front setback. Minimum front setback for this pedestal sign is 15 ft., Section 144-38C(1) & 144-41A(2). Note: Sign location proposed is a previously permitted location.
APPEARANCE: Mr. Todd Demarco told the Board that that he is the new owner of the former Nasta’s Pizzeria and that he has implemented approximately $70,000.00 of renovations to the site. He presented the Board with a correspondence from the property owner indicating that Mr. DeMarco has his permission to erect the proposed sign. Mr. DeMarco stated that the proposed sign is smaller than the previous sign. He further stated that customers and his food distributors have difficulty finding him, due to the building being located at an angle. He feels he is loosing sales without the presence of a sign. He further feels that the sign will not change the character of the neighborhood. Mr. Demarco submitted a petition to the Chairwoman with 259 signatures supporting the variance request. The Secretary will enter this into the permanent file. Mr. DeMarco also submitted photos for the members to review showing the existing sign, which a delivery truck backed over and photos of the sign Mr. DeMarco would like to erect.
Mr. Liberti established that the proposed sign will be lit on both sides.
Ms. Bowers discussed the sign and confirmed that it will be internally lit with no spotlight on it.
The Chairwoman then asked if there was anyone in the audience who would wish to speak in favor of granting the variance.
(Twice)
NO RESPONSE
The Chairwoman then asked if there was anyone in the audience who would wish to speak against the granting of the variance.
(Twice)
NO RESPONSE
The Chairwoman 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. 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:
ZBA Mtg. #9 Reg. Mtg. #9 September 19, 2006 Page 3
BOWERS AYE
HOLMWOOD AYE
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS PASSED.
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; it will enhance the business and the area.
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.
THE VOTE ON THE MOTION BEING:
BOWERS AYE
HOLMWOOD AYE
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS PASSED.
2. ZBA File #34-06, Joseph Ippolito, Vacant Land Milestrip Road, Zoned R-2 (Part of Farm Lot 4, Township 10, Range 7; SBL#162.08-2-4.2). Requests area variances to create (2) 100 ft. x 167 ft. lots. Minimum lot width in this R-2 Zone is 110 ft. Minimum lot area is 20,000 sq. ft., Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.
Mr. Ippolito stated explained to the members that he purchased property on Milestrip Road and that the deed contained an error with regards to the depth of the property. He told the Board that the deed represented the center line as 200 ft., when actually it was the south line of Milestrip that is 200 feet. He presented a survey to the Board showing the parcel in question. He explained to the Board that he did not purchase additional land from the adjacent property owner (Mrs. McCooey) as he wanted to leave adequate space between her property and the new home. Mr. Ippolito presented a copy of the corrected deed to the Board and told the members that he would like to build two residential homes here, noting that he had already begun improvements to the property when the error was discovered.
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The Chairwoman then asked if there was anyone in the audience who would wish to speak in favor of granting the variance.
(Twice)
NO RESPONSE
The Chairwoman then asked if there was anyone in the audience who would wish to speak against the granting of the variance.
OPPONENT:
Mr. Jerry Ovitt
7765 Milestrip Road
Orchard Park, NY 14127
Mr. Ovitt told the Board that he is against the variance request. He does not believe allowing smaller widths for lot sizes is in the best interest of the Town of Orchard Park. He feels 100 feet widths will create the need to install fences for privacy by home owners. He noted that he has observed the green space area along Milestrip Road decrease. He further noted that a proposed subdivision, Knoche Acres, is proposed across the road from here.
Mr. Don Dieter
7766 Milestrip Road
Orchard Park, NY 14127
Mr. Dieter stated that he and his mother, who resides at 7746 Milestrip Road, are opposed to the variance request. He agrees with Mr. Ovitt and in addition, he does not feel the smaller lot width fits into the character of the neighborhood. He stated that he sees no reason to place new homes close together at this location. He told the Board that his mother requested a variance to be allowed for a 100-foot lot and was denied by the Zoning Board of Appeals. She has land that is useless to her. Mr. Dieter feels that the Town should not grant a developer a variance and not a long life resident. He stated that 110-feet is the standard and the request should be denied. He would like this part of Milestrip Road left as a rural area rather than a slice of a subdivision.
The Chairwoman noted that the Board has a copy of the corrected deed and that the secretary will enter it into the permanent file.
The Chairwoman 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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Mr. Zajac re-verified that Mr. Ippolito is not able to purchase additional land from Mrs. McCooey.
The Chairwoman stated that she feels the hardship is self created.
Ms. Bowers noted that the Town Board changed the requirement for the lot width in this area and she believes there is a reason for this. She furthers feels that this is a self created hardship.
Mr. Liberti asked Mr. Ippolito if he could approach Mrs. McCooey and purchase an additional 20-feet of property. Mr. Ippolito told the Board that Mrs. McCooey will not be able to sell him additional property because she needs the buffer area to protect her nearby horse farm.
The Chairwoman noted that the neighbors need to protect themselves, too.
Ms. Bowers made a MOTION, seconded by Mr. Liberti, to DENY the variance request for the following reasons:
1. The hardship is self created.
2. There will be an adverse effect on the neighborhood.
3. The benefit sought can be sought in another way; additional land could be purchased.
4. There will be an undesirable change to the character of the neighborhood.
5. The request is substantial.
THE VOTE ON THE MOTION BEING:
BOWERS AYE
HOLMWOOD AYE
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION TO DENY THE VARIANCE REQUEST IS PASSED.
3. ZBA File #35-06, 3050 Orchard Park Road LLC, Represented by Scheid Architectural, Zoned B-2 (Part of Farm Lot 456, Township 10, Range 7; SBL#152.12-3-3). Requests an area variance to construct a 1,875 sq. ft. storage building. Maximum square footage for an accessory structure in this B-2 Zone is 120 sq. ft., Section 144-24B.
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APPEARANCE: Mr. James Churchill, Scheid Architectural
Mr. Carlos Santos, MD
Mr. Churchill presented and explained plans to convert the former Towne Lincoln Mercury site into a medical office facility. He told the Board that an accessory structure, with climate control, is needed to store medical records for 21-years. In addition, a portion of the building will be used to store lawn equipment. A variance is needed to locate the building here as there is an easement area along the north side of the property. He told the members that the building is completely screened from Orchard Park Road.
Mr. Zajac reviewed the elevation of the building and established that the building will be made of metal. The storage building cannot be connected to the primary building due to the layout of tenant areas, exits and the existing driving lane.
Mr. Holmwood established that there is no room on the sides of the existing building to construct a storage building.
The Chairwoman confirmed that the applicant has no intention to rent out the storage building.
The Chairwoman then asked if there was anyone in the audience who would wish to speak in favor of granting the variance.
(Twice)
NO RESPONSE
The Chairwoman then asked if there was anyone in the audience who would wish to speak against the granting of the variance.
(Twice)
NO RESPONSE
The Chairwoman 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. Zajac 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:
BOWERS AYE
HOLMWOOD AYE
ZBA Mtg. #9 Reg. Mtg. #9 September 19, 2006 Page 7
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS PASSED.
Mr. Liberti made a MOTION, seconded by Mr. Zajac 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.
2. The request is not substantial.
3. The difficulty is self created, but that does not preclude the granting of the variance.
The variance is granted with the following stipulation:
1. The structure is solely to be used for storage purposes only.
THE VOTE ON THE MOTION BEING:
BOWERS AYE
HOLMWOOD AYE
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS PASSED.
4. ZBA File #36-06 Cosmas A. Leigh, 3445 Orchard Park Road, Zoned B-4 (Part of Farm Lot 16, Township 10, Range 7; SBL#152.20-4-5). Requests (2) variances for a proposed chiropractic office within an existing residence. The first request is to allow a residence and a business to co-exist on this property. Uses permitted in R-Districts shall not be permitted on the same lot with uses permitted in B-Districts, Section 144-20D. The second request is to allow vehicle parking in the front yard. Vehicle parking is prohibited in the front yard in this B-4 Zone, Section 144-29A(4).
APPEARANCE: Mr. Cosmas Leigh, applicant
Mr. Leigh told the members that he is a resident of Orchard Park and that he presently operates a chiropractic practice in the Town of West Seneca. He desires to purchase property on Orchard Park Road, which was formerly a State Farm Insurance agency, reside here and conduct his practice. Initially, Mr. Cosmas was told by the realtor that the property had dual usage; however, the Building Inspector determined that this is not the case. Mr. Cosmas told the Board that he has a contingency purchase agreement based on receiving the requested variance.
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Mr. Holmwood established that there will be no addition constructed; the existing 3-car garage will be converted to suit his needs and improvements will be made to the existing structure.
Mr. Liberti established that Mr. Cosmas will create 12 additional parking spaces by paving a small portion at the front of the property. He will not remove the existing trees. He feels his business will generate very little traffic, noting that his schedule is based on seeing approximately 30 to 40 patients, three times a week. He told the Board that he would prefer to have the rear of the property used as green space for his family.
Ms. Bowers asked Mr. Leigh to describe the current parking at the site and she also reviewed the submitted parking space sketch plan. The hours of operation will be 9 A.M. to 12 noon and 3 P.M. to 6 P.M., Monday, Wednesday and Friday. The office staff will be present during the entire day.
Mr. Zajac inquired if there is room on the opposite side of the building to locate parking and Mr. Cosmas told the Board that it would be possible if trees were removed. The members discussed the proposed parking further with Mr. Cosmas, who told the Board that he is open to other suggestions. The plan he submitted allows him to keep the rear area of the home for his family.
The Chairwoman established that Mr. Cosmas will not rent out space to a tenant.
Mr. Liberti established that Mr. Cosmas will erect a code compliant sign and have it illuminated with flood lights.
The Chairwoman then asked if there was anyone in the audience who would wish to speak in favor of granting the variance.
(Twice)
NO RESPONSE
The Chairwoman then asked if there was anyone in the audience who would wish to speak against the granting of the variance.
(Twice)
NO RESPONSE
The Chairwoman 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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Mr. Liberti made a motion, seconded by Mr. Zajac, 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:
BOWERS AYE
HOLMWOOD AYE
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS PASSED.
Ms. Bowers made a MOTION, seconded by Mr. Liberti to GRANT the use variance request, to allow a residence and a business to co-exist at the same time for the following reasons:
1. The hardship is unique and it does not create a negative effect to the neighborhood;
2. The variance will not alter the essential character of the neighborhood;
3. The hardship is not self-created; and,
With regards to the area variance to have additional parking, she moves that the Board GRANT approval of the request for the following reasons:
1. There will be no undesirable change to the character of the neighborhood or the property surrounding it.
2. The benefit sought could be resolved in a different way, but it will not necessarily make the property look any different; it is not an issue.
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:
BOWERS AYE
HOLMWOOD AYE
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS PASSED.
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5. ZBA File #37-06, Peter Liberatore Sr., Vacant Land Stonehenge Drive at Barnstable Lane (Paper Street), Zoned R-1; SBL#173.07-1-25.1. Requests an area variance to allow (2) contiguous lots with minimum street access. Two lots with minimum street access shall not be contiguous, Section 144-22B.
APPEARANCE: Mr. Peter Liberatore, Developer
Mr. Liberatore, Jr.
Mr. Liberatore, Jr. thanked the Board for the previous variance that was granted for this property; however, he is now appearing before the Board with a revised request which will allow him to locate the 4,800 sq. ft. home farther to the west so that it will not infringe on the adjacent neighbors. He noted that the location of the proposed lot will be in an area deemed a paper street known as “Barnstable Lane”. However, Mr. Liberatore, Jr. told the Board that he intends to never put Barnstable Lane in.
The Chairwoman stated that the granting of a variance will keep the road from being put in. She further stated that when planning for the Town, good planning looks to the future.
The Chairwoman then asked if there was anyone in the audience who would wish to speak in favor of granting the variance.
(Twice)
NO RESPONSE
The Chairwoman then asked if there was anyone in the audience who would wish to speak against the granting of the variance.
OPPONENT:
Mr. Dominic Piestrak, Developer
Birdsong Development
110 Coriander Circle
East Amherst, NY 14051
Mr. Piestrak presented a plan for the members to review and he stated that it is what the Town approved, with regards to the Birdsong Development. He further stated that from a traffic safety point of view, the road is essential for the future. He does not want to sell lots to individuals that he believes will have a safety problem with fire and police protection. He feels that when you do not connect subdivisions it lends to un-neighborly policies; you will have one subdivision against the other. Mr. Piestrak believes the road connecting to Stonehenge is crucial. He stated that he does not care what type of home is built here; just put the road in, or let someone else be able to in the future.
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Mr. Nick Piestrak, Developer
Birdsong Development
110 Coriander Circle
East Amherst, NY 14051
Mr. Piestrak stated that he is against the granting of the variance. He noted that an individual living in Stonehenge Drive wanting to visit someone living in Birdsong, that is their backyard neighbor, will have to drive quite a ways to arrive at their back yard neighbor’s property. He feels this is not logical.
Mr. Liberatore, Jr. stated that it is ridiculous; everyone complains about the traffic. He feels that they do not need more traffic coming through the area from the Birdsong Development. He further noted that it is not their property and that he does not need any variances to build the house, as he can shift it over. He stated, “The road is not going in; that is the bottom line”.
The Chairwoman then asked if the Secretary had received any additional communications either for or against granting the variance.
The Secretary stated that three communications were received and the Chairwoman discussed these as follows; Town Engineer Wayne Bieler issued a communication noting great concern regarding having an egress from the Birdsong Development, a letter from Judge Bray supporting the request for the variance and Planning Board Member John Bernard sent an e-mail wherein he states that he does not support the variance request.
The Chairwoman noted that in view of the fact that the Board has received concerns regarding public safety and traffic, she would like the secretary to refer this item to the Public Safety Commission for a traffic study. She then stated that the matter is tabled.
6. ZBA File #38-06, James & Mary Ann Carr, Vacant Land North Buffalo Road, Zoned B-3 (Part of Farm Lot 21, Township 10, Range 7; SBL#161.08-3-39). Requests an area variance to allow vehicle parking in the front yard of a proposed retail building. Vehicle parking areas are prohibited in the front yard in this B-3 Zone, Section 144-29A(4).
APPEARANCE: Mr. & Mrs. Carr, applicant
Mr. Bob Gill, Architect
Mrs. Terry Meyers, LBM
Mr. Gill gave a brief history of the proposed project. He told the Board that the Conservation Board reviewed the landscaping and liked the proposal. However, the Conservation Board members tabled their review of the project, pending the outcome of the variance request for front yard parking. Mr. Gill stated that since that time the plan has been revised. The building has been re-located and moved forward. The parking spaces are now behind the building and the applicants would like to request a
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setback variance for the proposed building. Mr. Gill noted that the revision created additional green space area at the site.
Mrs. Meyers asked the Board to consider the revised request. She submitted a petition signed by 26 neighbors supporting the variance request.
The Chairwoman told the applicant that the revised request must be published and the neighbor’s notified before the members could rule on the request. Attorney Michael Wolf verified that the revised request must be published. Mrs. Carr explained that she will face a hardship if the project’s review is delayed. The Chairwoman noted that it is not normal for the Board to call for a special meeting; however due to the hardship that will be created for the applicant, a special meeting date of October 2, 2006 at 6:00 p.m. will be arranged.
The Chairwoman stated that the review of the request is tabled until October 2, 2006.
There being no further business to be presented to the Board at this time, the Acting Chairwoman Jo Ann Litwin adjourned the meeting at 8:47 p.m.
DATED: October 24, 2006 Respectfully submitted,
REVIEWED: October 25, 2006 Rose Seivert, Secretary
Zoning Board of Appeals
Jo Ann Litwin, Acting Chairwoman