ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the July 17, 2007 meeting held in the Basement Public Meeting Room, S4295 South Buffalo Street.
MEMBERS PRESENT: Robert Lennartz, Chairman
Donald Holmwood
Joseph Liberti
Jo Ann Litwin
Richard Zajac
EXCUSED: Kim Bowers, resigned position for appointment to the Planning Board
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 7:30 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.
The Chairman stated that Mr. Zajac is now a full voting member appointed by the Town Board in lieu of Ms. Bowers’ appointment to the Planning Board; however, the Town Board has not yet appointed a new Alternate member.
APPROVAL OF THE MINUTES OF THE MAY 15, 2007 REGULAR MEETING:
Upon a motion duly made and seconded, the reading of the minutes of the May 15 2007 Zoning Board of Appeals meeting was unanimously waived as each Board Member had previously received copies.
The Mr. Holmwood made a MOTION, seconded by Zajac to ACCEPT the minutes of the May 15, 2007 meeting as presented.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
HOLMWOOD AYE
LIBERTI AYE
LITWIN ABSTAINED
ZAJAC 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.
The Chairman stated that site inspections of all cases presented tonight were made by:
LENNARTZ AYE
HOLMWOOD AYE
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
The Chairman explained that this evening we will not have full Board representation on several cases. In these circumstances it requires (3) votes to approve any motion that is presented. If a vote results in a two/two tie, the motion will be defeated. As a result, we offer petitioners the following three options:
1. We can vote on the petition and the petitioner must accept the Board’s decision.
2. We can hear the case and postpone the vote until the next meeting of the Board
when a full Board is present. The absent members of the Board will review the
testimony and all appropriate documents prior to the meeting.
3. The petitioner can postpone making his presentation until the next meeting of
this body.
OLD BUSINESS
1. 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. NOTE: This case was tabled at the 4/17/07 meeting pending consultant review.
Chairman Lennartz stated that he is recusing himself from voting in this case and that Ms. Litwin will chair the review of this request.
APPEARANCE: Mr. Daniel Silber, Nixon Peabody, representing Upstate Cellular
Mr. Silber noted that Professor Johnson, a consultant used by the Town of Orchard Park in the past, was hired by Upstate Cellular Network to review the proposal to erect a 95-ft wireless telephone communication facility at 4248 South Taylor Road. Mr. Johnson prepared a report regarding this proposal and his findings were favorable. Mr. Silber told the Board that he is available to answer any additional questions the members may have. The Acting Chairwoman established that there were no additional questions.
Acting Chairwoman Litwin then asked if there was anyone in the audience who would wish to speak in favor of granting the Building Permit.
(Twice)
NO RESPONSE
Acting Chairman Litwin then asked if there was anyone in the audience who would wish to speak against the granting of the Building Permit.
(Twice)
NO RESPONSE
Acting Chairwoman Litwin then asked if the Secretary had received any additional communications either for or against granting the Building Permit.
The Secretary stated that no communications have been received.
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 Long EAF.
THE VOTE ON THE MOTION BEING:
LENNARTZ ABSTAINED
LITWIN AYE
HOLMWOOD AYE
LIBERTI AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING FOUR (4) IN FAVOR AND ONE (1) ABSTENTION, A NEGATIVE DECLARATION IS MADE UNDER SEQR.
Mr. Liberti made a MOTION, seconded by Mr. Holmwood, to APPROVE the request for a Building Permit to construct a 95-ft. wireless telephone communication facility based on the following:
1. The request is not substantial.
2. There will be no adverse effect or impact on the physical or environmental conditions of the neighborhood or district.
3. The difficulty is self-created; however, that does not preclude the granting of the request.
THE VOTE ON THE MOTION BEING:
LENNARTZ ABSTAINED
LITWIN AYE
HOLMWOOD AYE
LIBERTI AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING FOUR (4) IN FAVOR AND ONE (1) ABSTENTION, THE MOTION IS PASSED.
NEW BUSINESS
1. ZBA File #24-07, Carl Rizzo, 135 Windom Avenue Zoned R-3 (Sub Lot’s 14-17, Map Cover 1293; SB:#151.16-5-24). Requests an area variance to construct a porch with a 24-ft. front setback. Minimum front setback for this R-3 parcel is 30-ft., Section 144-9B, Schedule of Height, Lot, yard & Bulk Regulations.
APPEARANCE: Mr. Carl Rizzo, applicant & property owner
Mr. Rizzo presented plans to erect a front deck (porch area) 24-ft. x 23-ft. in size onto his existing home. The Board’s questions established that Mr. Rizzo will install a set of stairs with two hand rails to access the deck and that the deck will expand over the sidewalk and he will plant landscaping in front of it. It was also established that the existing tree will not be impacted from the construction of the deck.
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. Zajac, to GRANT the variance request based on the following:
1. There will be no undesirable change to the character of the neighborhood or a detriment to nearby properties created.
2. The benefit sought cannot be achieved in another way due to the size of the lot.
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, however that does not preclude the granting of the variance.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
LITWIN AYE
HOLMWOOD AYE
LIBERTI AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS PASSED.
2. ZBA File #25-07, Joseph Coveney, 5230 S. Freeman Road, Zoned R-1 (Part of Farm Lot 5, Township 9, Range 7; SBL#185.06-8-19). Requests a variance to install 118- ft. of 8-ft. high fence along the south property line. Maximum height of a fence in this side yard is 6-ft., Section 144-22A(2).
Mr. Zajac stated that he is recusing himself from voting in the case due to a business relationship.
APPEARANCE: Mr. Joseph Coveney, applicant & property owner
Mr. Coveney explained that he would like to upgrade an existing six-foot fence and add additional fencing to restore privacy for himself and his adjacent neighbor. He told the Board that his neighbor does not object to the request for the variance.
Mr. Holmwood verified the location of the fencing with the applicant.
Mr. Liberti established that Mr. Coveney spoke to his neighbor and that a letter was received from Mr. Hanlon residing at 5234 S. Freeman Road, indicating that he has no objection to the granting of the variance.
Chairman Lennartz noted that the ordinance states that a fence may be a maximum of six-feet in height; however, the applicant is requesting an eight-foot high fence. He told the applicant, “When does eight-feet become ten-feet?” He concluded, “where does it end”? Mr. Coveney explained to the Board the difficulty that exists with the slope of his property. He told the members that if his property were located on level ground he would not need to have a higher fence. He further explained that the fence will not have an impact on the area as it is not visible. He told the Board that he and his neighbor will both enjoy their property by gaining the privacy they each desire.
The Chairman then asked if there was anyone in the audience who would wish to speak in favor of granting the variance.
Mr. Mark Muchowski
9 Lake Ridge
Orchard Park, NY 14127
Mr. Muchowski stated that he did not object to the granting of the variance; however he asked for clarification on the length of the fence as the agenda he received in the mail contained an error. The posting in the Town’s official newspaper was correct.
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.
Chairman Lennartz stated that if the variance is granted the Board is not “opening the door” for approvals of cases pleading the need for privacy. He noted that there are special conditions that have been presented and explained by the applicants. The Board’s decision will not set a precedent for other appeals for privacy.
Ms. Litwin made a MOTION, seconded by Mr. Holmwood, to GRANT the variance request based on the following:
1. There will be no undesirable change to the character of the neighborhood.
2. The benefit sought cannot be achieved in another way due to the topography of the property.
3. The request is not substantial; an 8-foot fence installed on this property will not been seen the same way an 8-foot fence installed on a flat parcel would be.
4. There will be no adverse effect or impact on the physical or environmental conditions of the neighborhood or district.
5. The difficulty is not self-created.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
LITWIN AYE
HOLMWOOD AYE
LIBERTI AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS PASSED.
3. ZBA File #26-07, Bryan & Karen Rosten, 5771 Powers Road, Zoned R-2 (Part of Farm Lot 28, Township 9, Range 7; SBL#184.00-2-43). Requests an area variance to allow a single family residence with a 6.95-foot side setback. Minimum side setback for this R-2 Lot is 10 feet, Section 144-9B, Schedule of Height, Lot, Yard and Bulk Regulations.
APPEARANCE: Mr. & Mrs. Bryan Rosten, applicant & property owner
Mr. Rich Maranani of American Dream Homes
Mr. Maranani presented photos for the Board members to review and he explained that a mistake had been made in the placement of Mr. & Mrs. Rosten’s modular home.
Chairman Lennartz questioned why an instrument of survey did not take place before the basement was established. Mr. Maranani told the Board that installing a modular home is a fast process and he is not clear on how the error occurred. He told the Board that the Rosten’s are victims and that violating the code was not done intentionally. He feels the combination of the driveway, the turn-around and the pivoting of the home led to the error. He told the Board he feels that the existing trees will provide adequate screening to the adjacent lot owner.
The Board members concluded that carelessness created this error. The Chairman told Mr. Maranani that he should have supervised his employees during the work that was performed at this site.
The Chairman then asked if there was anyone in the audience who would wish to speak in favor of granting the variance.
Mr. Michael Justin
5787 Powers Road
Orchard Park, NY 14127
Mr. Justin told the Board that he has no opinion either way regarding the variance request; he noted that he observed that the initial stakes were incorrectly placed and he feels that is when the problem started. He voiced his opinion regarding American Dream Homes and what he perceives as a lack of responsibility.
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 stated that she understands the comments from Mr. Justin; however, she feels the Rosten’s are innocent victims and she does not want to punish them. This is a sad situation and she hopes Mr. Maranani has learned a lesson from this.
The Chairman noted that this is a beautiful home and he does not want to hurt the Rosten’s. He cautioned Mr. Maranani to not repeat this mistake.
Mr. Liberti made a MOTION, seconded by Mr. Zajac, to GRANT the variance for the following reasons:
1. There will be no undesirable change or detriment created to 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
LITWIN AYE
HOLMWOOD AYE
LIBERTI AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED.
Chairman adjourned the meeting at 8:20 p.m.
DATED: August 9, 2007 Respectfully submitted,
REVIEWED: August 10, 2007 Rose Seivert, Secretary
Zoning Board of Appeals
Robert Lennartz, Chairman