ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the May 15, 2007 meeting held in the Basement Public Meeting Room, S4295 South Buffalo Street.
MEMBERS PRESENT: Robert Lennartz, Chairman
Kim Bowers
Donald Holmwood
Richard Zajac, Alternate
EXCUSED: Jo Ann Litwin
Joseph Liberti
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 7:32 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 APRIL 17, 2007 REGULAR MEETING:
Upon a motion duly made and seconded, the reading of the minutes of the April 17,
2007 Zoning Board of Appeals meeting was unanimously waived as each Board Member had previously received copies.
Mr. Holmwood made a MOTION, seconded by Ms. Bowers to ACCEPT the minutes of the April 17, 2007 meeting as presented.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
BOWERS AYE
HOLMWOOD AYE
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
BOWERS AYE
HOLMWOOD AYE
ZAJAC AYE
The Chairman 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 #11-07, Doodle Bugs Child Care, 215 Red Tail Road, Zoned I-1 (Part of Farm Lot 24, Township 10, Range 7; SBL#152.19-1-26.11). Requests an area variance to install a 4-foot high fence in a front yard. Maximum height of a fence in a front yard is 3-feet, Section 144-22A(1).
APPEARANCE: Mr. Anthony Insinna, owner
Mr. Insinna told the Board that he received Planning Board Site Plan Approval to install a three-foot high fence; however, he requests that he be allowed to install a four-foot high aluminum security fence for the safety of the children attending the facility. He further told the Board that a substantial amount of landscaping will be used around the fence area.
Mr. Holmwood established that the fence will be installed around the perimeter of the playground area.
Chairman Lennartz established that the spacing distance within the fence is the size of a standard ball – 4 inches; this meets the same regulations required for swimming pools.
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.
The Chairman noted that the fence is attractive.
Ms. Bowers 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
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, A NEGATIVE DECLARATION IS MADE UNDER SEQR.
Mr. Zajac made a MOTION, seconded by Ms. Bowers to GRANT the area variance request based on the following:
1. There will be no undesirable change in the character of the neighborhood or a detriment to nearby properties created.
2. The benefit cannot be sought 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
HOLMWOOD AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS PASSED.
2. ZBA File #12-07, Orchard Park Pediatrics, 3725 N. Buffalo Road, Zoned B-3 (Part of Farm Lot 15, Township 10, Range 7; SBL#162.05-2-7.1). Requests two (2) variances to replace an existing freestanding sign. The first request is for (2) 40-square foot display surfaces. Maximum sign area for this freestanding sign is (2) display surfaces, each of which shall not exceed 20-square feet, Section 144-38B(2). The second request is to maintain the 2-foot, 7 inch setback. Minimum setback for this freestanding sign is 10-feet, Section 144-38B(1).
APPEARANCE: Mr. Frank Schreck, MD
Dr. Schreck explained to the Board the difficulty that exists for patients attempting to locate their facility. He told the members that he would like to install the proposed sign to create greater visibility and attract new tenants to the building. There is space for five tenant listings on the sign. He would like to locate the sign where it was originally placed; however, if the Board determines the sign must meet the setback requirements he will comply. He noted that the setback requirement changed when the road was recently widened.
The Board members discussed the request and concluded that the proposed sign is too large; they asked the petitioner to reduce the size of the sign to 4-feet x 8-feet, rather than the proposed 5-feet x 8-feet, with a 3-foot ground clearance. Dr. Schreck agreed to this compromise.
Building Inspector Dave Holland told the Board that the proposed sign’s location will not interfere with road visibility at the site. He noted that there is room to move the sign if the Board requests this.
Mr. Holmwood noted that the colors used on the proposed sign will aid in visibility.
The Chairman then asked if there was anyone in the audience who would wish to speak in favor of granting the variance.
PROPONENT:
Michelle Wick,
Jewett Holmwood Road
Orchard Park, NY 14127
Ms. Wick stated that she supports the variance request; she has found that she has driven past the facility and turning around is dangerous.
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 she had received a phone machine message from Councilwoman Yeomans stating that she is against granting a variance for any signs being requested. The Secretary further stated that she had e-mailed Mrs. Yeomans asking her to convey her concerns directly to the Chairman. The Chairman noted that Councilwoman Yeomans had not contact him and that he does not recognize this; there was no conversation that took place between them.
Ms. Bowers 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:
LENNARTZ AYE
BOWERS AYE
HOLMWOOD 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 two area variances being requested: The first request being for (2) 40-square foot display surfaces - the applicant agrees to reduce the request to 32-sq. ft. and secondly, the request being to maintain the 2-foot, 7-inch setback based on the following:
1. There will be no undesirable change to the character of the neighborhood; I believe it will be a nice addition.
2. The benefit cannot be sought 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, however this does not preclude the granting of the variance.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
BOWERS AYE
HOLMWOOD AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS PASSED.
3. ZBA File #13-07, Joe & Danielle Tabone, 6869 Scherff Road Zoned A-1 (Part of Farm Lot’s 1 & 57, Township 9, Range 7; SBL#198.03-1-5.122). Requests an area variance to construct a barn/storage building within the front yard. No accessory structure shall be located within the front yard, Section 144-24A(1)(b).
APPEARANCE: Mr. & Mrs. Tabone, petitioner and property owners
Mr. Tabone told the Board that he would like to construct a 40 x 60 x 12 ft. barn to replace two deteriorating barns that were recently removed on the property. The proposed barn will be used for storage of lawn equipment, jet skis, a 4-wheeler and a car. He further told the Board that a pond exists at the rear of the property and that he feels there is no other location to place the proposed barn. Mr. Tabone submitted a petition signed by the following neighbors stating that they have no objection to the variance request; Mr. & Mrs. Dan Beitz of 6861 Scherff Road, Orchard Park, NY, Mrs. Linda Wellington, 6851 Scherff Road, Orchard Park, NY, Ms. Jan Hall, 6889 Scherff
Road, Orchard Park , NY and Mrs. Jennifer Regoord, 6877 Scherff Road, Orchard Park, NY. This document will be made a part of the permanent file.
Ms. Bowers established that siding used on the proposed barn will match the siding of the existing home.
Mr. Zajac established that the petitioner will create a driveway to the proposed barn.
The Chairman then asked if there was anyone in the audience who would wish to speak in favor of granting the variance.
PROPONENT:
Mr. John Hall
6889 Scherff Road
Orchard Park, NY 14127
Mr. Hall spoke in favor of the variance request, noting that he feels the proposed barn will be attractive.
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.
Mr. Holmwood made a MOTION, seconded by Ms. Bowers, to GRANT the area 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 is self-created, but the topography of the site makes it necessary to place the proposed barn at the proposed location.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
BOWERS AYE
HOLMWOOD AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS PASSED.
4. ZBA File #14-07, Greg & Nicole Garrick, 5 Stoughton Lane, Zoned R-1 (Sub Lot 67, Map Cover 2870; SBL#162.15-5-48). Requests an area variance to install a 6-foot high fence in a side street yard. Maximum height of a fence in a side street yard is 3-feet, Section 144-22A(1).
APPEARANCE: Mr. & Mrs. Garrick, petitioner and property owners
Mr. Garrick told the Board that he would like to install a six-foot high fence in the side street yard area of his property. He explained that the fence is needed to provide safety and privacy for their family.
The Board reviewed the request and established that a row of pine trees is located along the side street property line, parallel with Route 20A. Building Inspector Dave Holland reviewed the site plan with the Board. The Chairman discussed the height of the requested fence being 6-feet; he concluded that the majority of the fencing on the property is conforming.
The Chairman then asked if there was anyone in the audience who would wish to speak in favor of granting the variance.
PROPONENT:
Mr. Dave DeNorman, Vice President
Classic Fence & Lumber Corporation
3030 Niagara Falls Blvd.
Amherst. NY 14228
Mr. DeNorman stated that he supports the variance request, noting that his firm will build a “top notch” custom fence.
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 Mr. Zajac to GRANT the area variance request based on the following:
1. There will be no undesirable change in the character of the neighborhood or a 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 self-created but this does not preclude the granting of the variance.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
BOWERS AYE
HOLMWOOD AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS PASSED.
5. ZBA File #15-07, McDonald’s USA LLC, 3232 Orchard Park Road, Zoned B-2 (Part of Farm Lot 458, Township 10, Range 7; SBL#152.16-2-33.1). Requests area variances for signs at the proposed McDonald’s project. The first request is for a pedestal sign and planter box with 57-sq. feet of sign area per side. Maximum sign area for this pedestal sign is 40-sq. feet per side, Section 144-38C(2). A pedestal sign shall have at least 8-feet of clear, unobstructed area from the ground to the bottom of the sign, Section 144-5B. The second request is to allow (2) directional signs to include logos. Erection of a pedestal sign shall preclude erection of a freestanding sign, Section 144-38C(3).
APPEARANCE: Mr. Peter Sorgi, Attorney
Mr. Sorgi told the Board that reviews have taken place with the Planning Board, Conservation Board and Town Board with regard to the proposed re-development of this site. He explained the proposed signage request to the members noting that a variance was granted in 1984 allowing the applicant to erect the second pedestal sign at the site. He would like to be able to erect the proposed pedestal sign and locate it on Orchard Park Road and be allowed to install two directional signs that include the logos of the “McDonald’s golden arches” on Lake Avenue. He noted that directional signs with logos are considered free standing signs. Mr. Sorgi feels that what presently exists exceeds what he is currently requesting. He also told the Board that the proposed pedestal sign is the smallest the manufacturer supplies.
The Board reviewed the signage request and established the following:
• Ms. Bowers established that the proposed signage will not be electronic and that the two directional signs will have the McDonald’s logo upon them.
• Mr. Zajac discussed the measurements of the proposed signage; Mr. Sorgi told the Board that the pedestal sign will be a total of 114-sq. ft. (both sides together) and that the present pedestal sign is 80 sq. ft. total sign area. Mr. Sorgi feels that what is being proposed is an improvement to the site.
• The Chairman confirmed that this is the smallest standard sign available through the supplier. He stated that he feels the public will know it is a McDonald’s upon seeing the “golden arches”. When asked if there were other options, Mr. Sorgi told the Board that if the plan is not approved the applicant can, (1) leave the two existing pole signs or (2) “walk away” from the project. Mr. Sorgi feels that redevelopment is a positive goal for the Town.
• Mr. Sorgi noted that the property has dual access to two different roads; the proposed plan indicates access using a driveway on Lake Avenue and access on Orchard Park Road with one driveway. Currently two driveways are used on Orchard Park Road to access the site and one on Lake Avenue is also used.
• Mr. Sorgi told the members that discussions are taking place with the Town Board regarding the building façade; an agreement has not been reached. The Chairman noted that he wants the brick used with the signage to match the brick agreed upon for the façade. Mr. Sorgi assured the members that the brick used for the building and the sign base will match. The Chairman further stated that he wants it to be clear that the “read-a-board” sign is not be electronic.
• The members determined that if the request is approved that they will require the second pedestal sign on Lake Avenue to be removed.
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 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
ZAJAC 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 variance requests with stipulations, based on the following:
1. There will be no undesirable change to the character of the neighborhood or a detriment to nearby properties created. The Chairman concurs that the goal of re-development is positive to the Town.
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, but that does not preclude the granting of the variances.
THE VARIANCES ARE GRANTED WITH THE FOLLOWING STIPUALTIONS:
1. The pole sign on Lake Avenue is to be removed.
2. The sign in front of the McDonald’s known as a “read-a-board” is to be an interior illuminated, non-electronic sign.
3. Brick used with the signage is to be in conformity with the façade agreed upon per the Town Board final approval.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
BOWERS AYE
HOLMWOOD AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS PASSED.
Chairman adjourned the meeting at 8:55 p.m.
DATED: July 12, 2007 Respectfully submitted,
REVIEWED: July 16, 2007 Rose Seivert, Secretary
Zoning Board of Appeals
Robert J. Lennartz, Chairman