ZBA Mtg. #3 Regular Mtg. #3 April 17, 2007 Page 1
ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the April 17, 2007 meeting held in the Basement Public Meeting Room, S4295 South Buffalo Street.
MEMBERS PRESENT: Robert Lennartz, Chairman
Kim Bowers
Donald Holmwood
Joseph Liberti
Jo Ann Litwin Richard Zajac, 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 7:30 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.
He asked those present to give thought to those in the military that will not be with their families this year.
APPROVAL OF THE MINUTES OF THE FEBRUARY 20, 2007 REGULAR MEETING:
Upon a motion duly made and seconded, the reading of the minutes of the February 20, 2007 Zoning Board of Appeals meeting was 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 February 20, 2007 meeting as presented.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
BOWERS AYE
HOLMWOOD AYE
LIBERTI AYE
LITWIN AYE
THE VOTE IS UNANIMOUSLY PASSED
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. #2 Regular Mtg. #2 February 20, 2007 Page 2
The Chairman stated that site inspections of all cases presented tonight were made by:
LENNARTZ AYE
BOWERS AYE
HOLMWOOD AYE
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
NEW BUSINESS
1. ZBA File #07-07, Phillip & Lucinda Teagarden, 6274 Cole Road, Zoned A-1 (Part of Farm Lot 58, Township 9, Range 7; SBL#198.00-2-36.2). Requests an area variance to construct garage additions which will result in a 2,452 sq. ft. accessory building. Building area of dwelling is 1,580 sq. ft. Accessory area shall not dominate principal use area, Section 144-5B.
APPEARANCE: Mr. & Mrs. Teagarden, petitioner & property owner
Mr. Teagarden told the Board that he would like to connect two garages on his property to create storage space for, two “daily drivers”, four (4) antique vehicles and lawn equipment. The siding on the additions will match the siding on the existing home. He presented a petition signed by five (5) neighbors stating that they have no objection to the variance request. The petition will be entered into the permanent file.
The Board established that Mr. Teagarden will not operate auto sales from the garage.
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 Ms. Bowers, to GRANT the area variance request for the following reasons:
1. There will be no undesirable change in the character of the neighborhood or a detriment to nearby properties created.
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2. The benefit sought cannot be achieved in another way with so many vehicles.
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 is self-created (because of the hobby); this does not preclude the granting of the variance.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
BOWERS AYE
HOLMWOOD AYE
LIBERTI AYE
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED.
2. ZBA File #08-07, Carmen Clark, 3043 Abbott Road, Zoned B-2 (Sub Lots 4 & 5, Map Cover 1410; SBL#151.12-4-29). Requests an area variance to construct a front deck and ramp which will reduce existing front setback by 12-ft. No setback, if already less than the minimum required shall be further reduced, Section 144-14. Note: Applicant’s Change-In-Use request is under Planning Board review.
APPEARANCE: Mr. Carmen Clark, petitioner & property owner
Mr. John High, petitioner & property owner
The applicants explained that in order to meet ADA requirements they must install a wheel chair ramp; however, the existing front setback will be reduced further. It was noted that the applicants’ proposal will be reviewed by the Planning Board and that a Change-In-Use must be granted by that Board. Noting that a variance expires six- months after it is granted; the Chairman established that the applicants did not feel an extension beyond this time period is needed.
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
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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.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
BOWERS AYE
HOLMWOOD AYE
LIBERTI AYE
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, A NEGATIVE DECLARATION IS MADE UNDER SEQR.
Ms. Bowers made a MOTION, seconded by Mr. Liberti, to GRANT the area variance with a STIPULATION for the following reasons:
1. There will be no undesirable change in the character of the neighborhood or a detriment to nearby properties created.
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.
5. The difficulty is self-created this does not preclude the granting of the variance.
The variance is granted with the following stipulation:
1. The approval is conditional, based on the granting of a Change-In-Use by the Planning Board.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
BOWERS AYE
HOLMWOOD AYE
LIBERTI AYE
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED WITH A STIPULATION.
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3. ZBA File #09-07, Silvestri Architects 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-ft. required building setbacks to property lines, Section 144-9B Schedule of Height, Lot, Yard & Bulk Regulations. Second, to reduce the 50-ft. required building setbacks to the R.O.W. of an access road, Section 144-46C(4)(a). Third, to reduce the 60-ft. required distance between buildings, Section 144-46C(4)(a).
APPEARANCE: Mr. Carmen Provanzano, Silvestri Architects
Peter Sorgi, Attorney
Joseph Waldman, Lebex
Mr. Sorgi presented and explained a revised site plan that was based on comments made by the Board members during previous meetings. The following concerns were addressed in the presented plan:
• The number of variances being requested has been reduced.
• A full traffic study was prepared and submitted to the Erie County Highway Department for review and comment. Mr. Sorgi noted that the Erie County Highway Department concurs with the submitted traffic study and notes that the project will not cause an adverse impact.
• A townhouse unit located in the wetland area has been eliminated, reducing the number of units to 64.
• The driveway has been widened with a medium.
• The request to have an additional access into the site is not obtainable as Mr. Lasky, who does not oppose the project, is not agreeable to granting the applicant access through his property.
Mr. Sorgi noted that the site was rezoned from I-1 to R-3 in 2001 and it is bordered by wetlands and Route 219. He stated that, essentially, the requested variances only affect the applicant. He believes the project is a benefit; not a detriment to the community. He does not feel a large number of school-age children will live at the complex; therefore, he feels there will not be an impact on the school system.
Building Inspector David Holland reviewed the site plan with the Board and discussed the variances being requested. The Chairman noted that, basically, there are three variances being requested but that the total number of variances amounts to 19 because of the number of units involved. Mr. Sorgi stated that several years ago, the project was approved for this site and that it was “much more than this”. Ms. Litwin noted that this is a different project and a different Board. Ms. Bowers concurred with this opinion.
The Board members’ questions established that;
• The road will be a private road maintained by a town house association.
• The project will be completed in one phase.
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• This will not be a senior living complex; these will be upscale townhouses available for sale in the price range of $230,000. The applicant takes the position that there will be no an impact to the school system as he feels there will be few families living here with school-age children.
• Snow removal will be reviewed during the site plan review with the Planning Board.
• There will be no basements.
• The wetland consultant has reported that 12.43 acres exists at the site; this is subject to review and determination by the Amy Corps of Engineers.
• The two-story townhouse units will be sold; not rented. Stipulations can be written into the association by-laws to prevent owners from renting units.
• Tenants will have four-(4) parking spaces.
Mr. Silvestri noted that the variances requests involve encroachment of non-buildable areas; a state highway and largely vacant wetlands. He stated that, “There will not be neighbors here, probably ever”.
Mr. Waldman stated that originally the plan proposed to construct eight (8) buildings; now it proposes four (4).
The Chairman stated that the wetlands study was not received until April 12, 2007 and that this was after his review of the file. However he confirmed with Attorney Michael Wolf that accepting the report is a separate question for the Planning Board during their review.
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:
James Jakel
4270 South Taylor Road
Orchard Park, NY 14127
Mr. Jakel noted that he has traffic concerns. It was noted that the traffic report will be reviewed the Planning Board during the site plan approval process.
The Chairman noted that he received a correspondence from Supervisor Murphy dated 12/20/06 noting that she had the following concerns:
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“The fact a substantial portion of the property is within the 500-year and 100-year flood plain is cause, in my mind, for major concern. I would not be in favor of developing this site. The Town Board is yet to adopt a town-wide drainage plan and until that time my concern continues to lie with the cumulative impact of development on drainage.”
The Chairman also noted that the Public Safety Committee reviewed the project per the request of the Board and the committee’s 3/7/07 response is as follows:
“The Committee concluded that a one-way entrance is dangerous for Police and Emergency vehicles and suggested two entrances. Parking on the streets would also hinder emergency and fire vehicles responding within the development. The traffic would impact both intersections at Taylor Road and Southwestern Blvd. and Taylor Road and North Buffalo Road. Traffic could also impact Ellis Road residents and Eckerd’s Plaza as cars cut through to avoid these intersections, and, therefore, does not approve the street as it is proposed.”
The Chairman stated that a response was received from Erie County Planning Department and they noted that there will be no adverse effect.
The Chairman noted that he feels the amount of the variance requests could be viewed as three (3) or nineteen (19).
Mr. Holmwood 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 long EAF.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
BOWERS AYE
HOLMWOOD AYE
LIBERTI AYE
LITWIN AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, A NEGATIVE DECLARATION IS MADE UNDER SEQR.
The Chairman made a MOTION, seconded by Mr. Holmwood, to GRANT the area variances being requested for the following reasons:
1. Strict application of the regulations will deprive the applicant of economic use of the property.
2. There will be no undesirable change in the character of the neighborhood.
3. The benefit cannot be achieved in another way.
4. The request is not substantial; many variances are being requested, but they are a group of three basic requests.
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5. There will be no adverse impact on the neighborhood.
6. There will be no adverse impact on the environmental conditions of the neighborhood; a determination on the wetlands area will be left to public hearings and site plan review.
7. The difficulty is self-created, but that does not preclude the granting of the variance.
8. The variance is granted for a one-year period.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
BOWERS NAY
HOLMWOOD AYE
LIBERTI NAY
LITWIN NAY
THE MOTION BEING THREE (3) AGAINST AND TWO (2) IN FAVOR, THE MOTION FAILS.
A MOTION was made by Mr. Liberti, seconded by Ms. Litwin, to DENY the variance request for the following reasons:
1. The difficulty is self-created.
2. The benefit can be achieved in another way.
ON THE QUESTION:
The members that voted “nay” briefly discussed their concerns regarding this project with Mr. Sorgi, that included:
• The concerns noted by the Public Safety Committee with egress/ingress and safety vehicles attempting to access the site.
• The Supervisor’s correspondence noting that she is against the variance requests.
• The number of variance requests; a variance is being requested for each structure and the members that voted nay feel this is a major change in our Town code. They also feel that there will be a detriment to the neighborhood if the variances are allowed.
• The inconsistency that will be created in the neighborhood by constructing town houses with a selling price of approximately $230,000 each.
The Chairman stated that the motion was defeated. The dissenting Board members raised concerns regarding the access road and the number of variances being requested. Attorney Michael Wolf noted that each building being proposed needs a set back variance. If the Board approves the variance requests they are legislating over
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the Town Board; variance requests are granted on an individual case, based on a hardship. If the Board approves a variance for each building they are, in effect, changing the requirement of the code.
Mr. Sorgi questions why he was not told this before. Ms. Litwin noted that he was told this at the onset of the review process. He discussed the Board wanting two access roads into the site; however, Ms. Bowers noted that the number of variance requests is still an issue.
Mr. Waldman asked what he must do to have the project work. The members told him to come back with a revised plan that is substantially different.
THE VOTE ON THE MOTION BEING:
LENNARTZ NAY
BOWERS AYE
HOLMWOOD NAY
LIBERTI AYE
LITWIN AYE
THE VOTE BEING THREE (3) IN FAVOR AND TWO (2) AGAINST, THE MOTION IS HEREBY PASSED.
4. ZBA File #10-07, Upstate Cellular Network d/b/a Verzion Wireless, leased parcel at 4248 South Taylor Road, Zoned I-1 (Part of Farm Lot 23, Township 9, Range 7; SBL#’s 161.19-2-10 & 161.19-2-11). Requests site plan review and building permit approval for a 95-foot wireless telephone communication facility as required by Chapter 144, Article VII.
APPEARANCE: Jared Lusk, Attorney - Nixon Peabody
Terina McCandless
Chairman Lennartz recused himself from voting in this case, stating that Ms. Litwin will reside as Acting Chairwoman.
The applicants explained and presented their request to construct a 95-foot wireless telephone communication facility upon property that is owned by the Town of Orchard Park. Mr. Lusk told the members that Verizon feels the site is “perfect” based on the extensive research they have performed. He told the members that Verizon will lease the property from the Town of Orchard Park and that co-location will be available. He further stated that the Town Board has approved the proposed lease agreement and that the Town Engineering Department has reviewed the plan and approves of the proposed location.
The Acting Chairwoman 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 Acting Chairwoman then asked if there was anyone in the audience who would wish to speak against the granting of the variance.
OPPONENT:
Mr. James Jakel
4270 S. Taylor Road
Orchard Park, NY 14127
Mr. Jakel voiced his concerns regarding health issues, drainage and visual pollution. He reviewed the site plan and noted that he was pleased with its location relative to the drainage in the area.
The Acting 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.
The Acting Chairwoman stated that it has been the protocol for the Board to retain a consultant to review wireless telephone communication requests to verify plans submitted to the Board. Attorney Michael Wolf noted that the applicant pays for the reasonable cost of an expert’s review. Professor Johnson of R.I.T. has been used in the past and the Planning Coordinator will be asked to contact him for an estimate of his services to perform the review. The Board would like him to confirm the usage need and the placement of the tower.
The Acting Chairwoman tabled the case pending a report from Professor Johnson.
There being no further business to be presented to the Board at this time, the Chairman adjourned the meeting at 9:10 p.m.
DATED: May 14, 2007 Respectfully submitted,
REVIEWED: May 14, 2007 Rose Seivert, Secretary
Zoning Board of Appeals
Robert J. Lennartz, Chairman