ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the June 19, 2007 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 Acting Chairwoman Litwin 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.
APPROVAL OF THE MINUTES OF THE MAY 15, 2007 REGULAR MEETING:
Acting Chairwoman Litwin stated that the minutes are not available and that they will be voted on at a later 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 Chairman stated that site inspections of all cases presented tonight were made by:
LITWIN AYE
BOWERS AYE
HOLMWOOD AYE
LIBERTI AYE
ZAJAC AYE
The Acting Chairwoman stated at tonight’s meeting we do not have full Board representation. In these circumstances it will require (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.
NEW BUSINESS
1. ZBA File #16-07, Saving Wild Horses Through Grace Ministries, Inc., 6140 Benning Road, Zoned A-1 (Part of Farm Lot 66, Township 9, Range 7; SBL#198.00-2-52.2). Requests a variance to replace an existing freestanding sign. This proposed freestanding identification sign is not permitted in this A-1 Zone, Section 144-37.
APPEARANCE: Mr. & Mrs. Michael Derrick, applicant/property
Saving Wild Horses
Mr. Derrick told the Board that he is a non-profit organization whose primary purpose is to rescue and save Wild Mustang horses and provide moral/spiritual instruction to unwanted children utilizing a horse program. He recently purchased 6140 Benning Road from the former Orchard Park Equestrian Center and has been actively replacing what exists at the site in an attempt to clean it up and have the site be more attractive. He explained that the existing sign is not large enough to represent their program.
Mr. Holmwood verified that the sign proposed is 8-ft. wide x 4-ft. x 7-ft. with a 3-ft. ground clearance.
Mr. Liberti established that a spot light will be used to illuminate the sign; it will not be internally illuminated. Mr. Derrick also told the Board that he has spoken with the area neighbors.
Mr. Zajac established that the approximate number of guests anticipated at the stable each day is 15. Mr. Derrick also noted that additional visits will occur with individuals trying to locate the business. He described to the Board the difficulty and confusion that exists in locating the business, due to it being located back off the road with a residential home located at the front of the property. He confirmed that the existing sign is 2-ft. x 4-feet; he is proposing to erect one that will be 8-ft. x 7-ft.
The Acting Chairwoman then asked if there was anyone in the audience who would wish to speak in favor of granting the variance.
PROPONENT:
Ms. Beverly Hammersmith
6243 Benning Road
West Falls, NY 14170
Ms. Hammersmith noted that she is not here to speak for or against the variance. She would like additional information. Ms. Hammersmith submitted an article from “The Buffalo News” regarding Saving Grace Ministries. Mr. Derrick noted that this is not the same, nor is he affiliated with this group.
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. Dale Wettlaufer
6160 Benning Road
Orchard Park, NY 14127
Mr. Wettlaufer does not support the request for the variance. He feels the sign is too large. He noted that there are no other free-standing signs within one mile of this site. He feels the sign will confuse people; it will not enhance the physical beauty of the area; there is no other riding academy in the area; he voiced safety concerns with regards to the speed limit. He feels the sign will interfere with site vision; it is located on the property line. He feels that the applicant should abide with the Town code.
Mrs. Carol Wettlaufer
6160 Benning Road
Orchard Pak, NY 14127
Mrs. Wettlaufer stated that she does not support the variance request.
Mrs. Derrick described to the Board the difficulty she has finding the driveway, even as the owner of the property. She feels a sign will distinguish the residential home from the Saving Wild Horses property. She told the Board that the sign could be reduced in size and that landscaping will be used to buffer 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.
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:
LITWIN AYE
BOWERS AYE
HOLMWOOD AYE
LIBERTI AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, A NEGATIVE DECLARATION IS MADE UNDER SEQR.
Mr. Liberti noted that the size of the original sign at this site was 2-feet by 4-feet and that the applicant is requesting a sign 4-ft. x 8-ft... He discussed reaching a compromise and reducing the size of the sign to 3-feet by 6-feet. The Wettlaufer
noted that this will be better, however Mrs. Wettlaufer stated that she feels the size of the existing sign is perfect. She believes that if the bushes are trimmed down and flowers are planted that the sign will be easily visible by anyone. Mr. Liberti stated that he believes that this is a good compromise and that there will not be a detriment to the neighborhood. The applicants agreed to revise their request for the size of the sign to 3-feet by 6-feet.
Mt. Liberti made a MOTION, seconded by Ms. Bowers, to GRANT the variance request with STIPULATIONS based on the following:
The variance is granted with the following stipulation:
THE VOTE ON THE MOTION BEING:
LITWIN AYE
BOWERS AYE
HOLMWOOD AYE
LIBERTI AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED WITH STIPULATIONS.
2. ZBA File #17-07, Bruce & Nadine Urban, 73 Minden Drive, Zoned R-3 (Sub Lot 235, Map Cover 2174; SBL#152.11-1-21). Requests an area variance to construct an attached garage with a 7-ft. side setback. Minimum side setback for this R-3 lot is 10-ft., Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.
APPEARANCE: Mr. & Mrs. Urban, applicant & property owner
Mr. Perry Smith, contractor representing the Urban’s
Ms. Litwin stated that she is recusing herself from this case, noting that Ms. Bowers will act as the Chairperson.
Mr. Perry Smith told the Board that the applicant would like to construct a two-car garage; however there is only one location on the property that the garage could be placed, due to the fact that the home is not symmetrically located on the lot.
A letter dated May 3, 2007 from the adjacent neighbors at 73 Minden Drive, Mr. & Mrs. Terry Thompson, was submitted indicating that they support the variance request. The secretary will enter this letter into the permanent file.
Mr. Zajac established that the garage will be similar to the existing home and matching singles will be used. There will be no overhang as this would encroach on the setback.
Acting Chairwoman Bowers established that the existing shed at the rear of the property will be removed.
Mr. Liberti established that grass will be planted in the remaining green space area between the garage and the adjacent neighbor.
Mr. Holmwood established that a man door will be located at the rear of the garage.
Acting Chairwoman Bowers then asked if there was anyone in the audience who would wish to speak in favor of granting the variance.
(Twice)
NO RESPONSE
Acting Chairman Bowers then asked if there was anyone in the audience who would wish to speak against the granting of the variance.
(Twice)
NO RESPONSE
Acting Chairwoman Bowers 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 Mr. Holmwood, to GRANT the variance request based on the following:
1. There will be no undesirable change to the character of the neighborhood or detriment to nearby properties.
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.
5. The difficulty is not self-created; the home was not built with a garage.
THE VOTE ON THE MOTION BEING:
LITWIN ABSTAINED
BOWERS AYE
HOLMWOOD AYE
LIBERTI AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING FOUR (4) IN FAVOR AND ONE (1) AGAINST, THE MOTION IS HEREBY PASSED.
3. ZBA File #18-07, Franklin W. Thompson, 11 Dorchester Road, Zoned R-3 (Sub Lot’s 80 – 82, Map Cover 927; SBL#172.05-2-25). Requests an area variance to construct a shed with a 4-ft. side setback and 4-ft. rear setback. Minimum side and rear setback for this R-3 Lot is 10 ft., Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.
APPEARANCE: Mr. & Mrs. Franklin Thompson, applicant & property owner
Mr. Thompson told the Board that he had applied for an area variance and was “clueless” to the procedure involved. He stated that he had not received notification to appear before the Board and he believed he could install the shed on his property when it had arrived. Mr. Thompson apologized to the Board for installing the shed without being granted the variance. He stated that if he removed the shed the contractor indicated that there would be a 20% surcharge to re-install it. He told the Board that he did not want to locate the shed close to the pool as someone might use the shed as a platform to dive off of into the swimming pool. Mr. Thompson submitted a letter dated 6/19/07 from his neighbors, Mr. & Mrs. Pingrey at 17 Dorchester Road indicating that they support the variance request. The secretary will enter this letter into the permanent file.
Mr. Zajac established that the applicant installed the shed 5-ft. from the side setback and 5-ft. from the rear setback. The original request was for 4-feet on both sides. Mr. Thompson told the Board that the neighbor at 17 Dorchester also has a shed.
Mr. Liberti established that Mr. Thompson will use the upper portion of the shed as an art/wood carving studio and that the bottom area will be used for storage.
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
The Acting 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 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.
Ms. Bowers made a MOTION, seconded by Mr. Zajac, to GRANT a variance to allow the shed to be located with a 5-ft. side setback and 5-ft. rear setback 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. The difficulty is self-created, however that does not preclude the granting of the variance.
THE VOTE ON THE MOTION BEING:
LITWIN AYE
BOWERS AYE
HOLMWOOD AYE
LIBERTI AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED.
4. ZBA File #19-07, Joseph N. Booth, 6929 Gartman Road, Zoned A-1 (Sub Lot 4, Chapel Forest; SBL#198.00-6-44). Requests an area variance to construct a detached garage with a 20-ft. side setback. Minimum side setback for this A-1 lot is 30-ft., Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.
APPEARANCE: Mr. Joseph booth, applicant & property owner
Andrew Romanowski, contractor
Mr. Romanowski explained that Mr. Booth desires to construct an additional 2-car detached garage on his property; however, he explained to the Board that there would be a limited range of movement if Mr. Booth built the garage according to the Town ordinance. Mr. Romanowski told the board that he is the owner of the adjacent lot and that he supports the variance request.
Mr. Zajac noted that a correspondence was received from Mr. Daryl Haseley, wherein, Mr. Hasleley states that he supports the request for the variance to construct the garage; however, he asks that an existing shed near his property line be relocated to comply with the Town Code. Mr. Booth stated that he will move the shed.
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
The Acting 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 Acting Chairwoman then asked if the Secretary had received any additional communications either for or against granting the variance.
The Secretary stated that no other communications have been received.
Mr. Liberti made a MOTION, seconded by Ms. Bowers, 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.
3. The difficulty is self-created, however that does not preclude the granting of the
variance.
THE VOTE ON THE MOTION BEING:
LITWIN AYE
BOWERS AYE
HOLMWOOD AYE
LIBERTI AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED.
5. ZBA File #20-07, James Owens, 5795 S. Abbott Road, Zoned A-1 (Part of Farm Lot’s 35 & 36, Township 9, Range 7; SBL#184.00-6-46). Requests an area variance to construct a 20-ft. x 30-ft. pole barn within the front yard. No accessory structure shall be located within the front yard, Section 144-24A(1)(b) NOTE: This request is to replace a barn lost to fire on 5/6/07.
APPEARANCE: Mr. James Owens, applicant & property owner
Mr. Owens told the members that a fire destroyed a barn that had existed on his property and he would like to erect a pole barn to replace that structure. He told the Board that he will replant landscaping that existed prior to the fire.
Mr. Holmwood established that the foot print for the pole barn will be the same that existed prior to the fire; the same siding will be used on the pole barn to match the existing home.
Mr. Liberti established that the former entry will be established again with the pole barn.
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
The Acting 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 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.
Mr. Zajac made a MOTION, seconded by Ms. Bowers 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 the nearby properties.
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.
5. The difficulty was self-created; however, this does not preclude the granting of the variance.
THE VOTE ON THE MOTION BEING:
LITWIN AYE
BOWERS AYE
HOLMWOOD AYE
LIBERTI AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED.
6. ZBA File #21-07, Benderson Development, 4050 N. Buffalo Road, Zoned B-2 (Part of Farm Lot 16, Township 9, Range 7; SBL#161.16-1-13.311). Requests a variance to alter a pedestal sign by adding a “pole cover” and planter. Pedestal shall not exceed 8-inches in horizontal dimension and shall have a clear, unobstructed area at least 8-ft. from ground to sign bottom, Section 144-5.
APPEARANCE: David Mavis, Benderson Development
Mr. Mavis presented photos of the proposed signage.
The Board members’ questions established that there will be no changes to the existing site and that the stone used at the base of the sign will match the stone at the existing plaza. It was noted that Councilwoman Nan Ackerman met with the applicant regarding this proposal and assisted the applicants with the proposal.
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
The Acting 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 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.
Mr. Liberti 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:
LITWIN AYE
BOWERS AYE
HOLMWOOD AYE
LIBERTI 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. Zajac, 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.
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 not self-created.
THE VOTE ON THE MOTION BEING:
LITWIN AYE
BOWERS AYE
HOLMWOOD AYE
LIBERTI AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED.
7. ZBA File #22-07, Christopher Suita, 170 Thorn Avenue, Zoned B-2 (Part of Farm Lot 23, Township 9, Range 7, SBL#172.08-4-20). Requests a use variance to proceed with a Change In Use request from residential (Single Family) to Business (Professional Office) while maintaining a residence within. Uses permitted in R-Districts shall not be permitted on the same lot with uses permitted in B-Districts, Section 144-20D.
APPEARANCE: Mr. Chris Suita, applicant & property owner
Mr. Suita told the members that he would like to relocate his psychology practice currently operating at 4184 Center Road in the Town of West Seneca, New York to
170 Thorn Avenue, Orchard Park and also reside here. He presented photos of the interior of the home, noting that the site will conform to ADA regulations. He told the Board that there will be no changes made to the exterior.
The members’ questions established that Mr. Suita would like to be established at the Thorn Avenue site prior to the end of this year. His offers counseling services to individuals, families, children, athletes, teams, etc. Mr. Suita submitted a letter from Mr. Schutt of Graph Con, Inc., located at 168 Thorn Avenue, Orchard Park, NY stating that he supports the variance request. The secretary will enter this letter into the permanent record. Mr. Suita told the Board that he spoke with neighbors and no one indicated to him that they were against the request. He further told the Board that the site has adequate parking and that a sign will be located on the front lawn and another sign will be placed on the side of the home. It was established that one-half of the lower level of the home will be used for the practice; the remainder will be used as living space. The hours of operation will be Monday, Tuesday and Thursday, from 2 to 8 P.M. Mr. Suita stated that it is
his intention in the future to purchase a home to reside in and at that time he will make this location strictly for his business.
Mr. Zajac verified the procedure for this request with Building Inspector David Holland.
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
The Acting 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 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.
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:
LITWIN AYE
BOWERS AYE
HOLMWOOD AYE
LIBERTI AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, A NEGATIVE DECLARATION IS MADE UNDER SEQR.
Mr. Zajac made a MOTION, seconded by Mr. Holmwood, to GRANT the variance request with a STIPULATION based on the following:
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 hardship is not self-created.
The variance is granted with the following stipulation:
1. The property will revert back to a single family home if the ownership changes.
THE VOTE ON THE MOTION BEING:
LITWIN AYE
BOWERS AYE
HOLMWOOD AYE
LIBERTI AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED WITH A STIPULATION.
8. ZBA File #23-07, Spa at Falling Waters, 3385 Orchard Park Road, Zoned B-4 (Part of Farm Lot 16, Township 10, Range 7; SBL#152.20-4-1). Requests a variance to expand parking into the front yard. Vehicle parking is prohibited in the front yard in this B4 Zone, Section 144-9A, Schedule of Use Controls.
APPEARANCE: Michael Stachera, applicant & property owner
Ms. Litwin stated that she is recusing herself from this case. Ms. Bowers will act as the Chairperson.
Mr. Stachera told the Board that he would like to create four additional parking spaces for clientele and staff. The site currently has 15-parking spaces located at the rear of the building; however, a drainage problem exists here that prevents him from installing additional parking spaces. Mr. Stachera would like to locate the proposed four parking spaces at the front of the building and he noted that the adjacent properties have parking located at the front of their buildings.
The Board members’ questions established that the site will be cleaned-up, grass will be planted and two planting beds will be established. Mr. Stachera stated that the cost of the landscaping is approximately $4,000.00.
Acting Chairwoman Bowers then asked if there was anyone in the audience who would wish to speak in favor of granting the variance.
(Twice)
NO RESPONSE
Acting Chairwoman Bowers then asked if there was anyone in the audience who would wish to speak against the granting of the variance.
(Twice)
NO RESPONSE
Acting Chairwoman Bowers 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 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:
LITWIN AYE
BOWERS AYE
HOLMWOOD AYE
LIBERTI AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, A NEGATIVE DECLARATION IS MADE UNDER SEQR.
Mr. Holmwood made a MOTION, seconded by Mr. Liberti, 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.
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.
5. The difficulty is self-created, but that does not preclude the granting of the variance.
THE VOTE ON THE MOTION BEING:
LITWIN AYE
BOWERS AYE
HOLMWOOD AYE
LIBERTI AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED WITH A STIPULATION.
The Acting Chairwoman adjourned the meeting at 8:50 p.m.
DATED: August 8, 2007 Respectfully submitted,
REVIEWED: August 8, 2007 Rose Seivert, Secretary
Zoning Board of Appeals
Acting Chairwoman, Jo Ann Litwin