ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the October 16, 2007 meeting held in the Basement Public Meeting Room, S4295 South Buffalo Street.
MEMBERS PRESENT: Robert Lennartz, Chairman
Richard Zajac
Joseph Liberti
EXCUSED: Donald Holmwood
Jo Ann Litwin
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 7:35 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 SEPTEMBER 19, 2007 REGULAR MEETING:
Upon a motion duly made and seconded, the reading of the minutes of the September 19, 2007 Zoning Board of Appeals meeting was unanimously waived as each Board Member had previously received a copy.
The Mr. Liberti made a MOTION, seconded by Mr. Zajac to ACCEPT the minutes of the September 19, 2007 meeting as presented.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
LIBERTI AYE
ZAJAC AYE
THE MOTION 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
LIBERTI AYE
ZAJAC AYE
The Chairman stated that at tonight’s meeting we do not have full Board representation;
we have three members present. In these circumstances I need to point out that it will require (3) votes to approve any motion that is presented. If a vote results with a single “nay” 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.
The Chairman made a MOTION, seconded by Mr. Liberti, that the TOWN BOARD please APPOINT an alternate member before the next Zoning Board of Appeals meeting. He stresses that this must be done in a timely fashion to provide an opportunity to the new member to review cases.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
LIBERTI AYE
ZAJAC AYE
THE MOTION IS UNANIMOUSLY PASSED
OLD BUSINESS
1. ZBA File #40-07, Silvestri Architects for Lebex Holdings, LLC. Vacant Land east side of Taylor Road, Zoned R-3 (Part of Farm Lot 24, Township 9, Range7; 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). The Board tabled their review of this item at the September 19, 2007 meeting.
APPEARANCE: Mr. Phil Silvestri, Silvestri Architects
Mr. Carmen Provenzano, Silvestri Architects
Mr. Peter Sorgi, Attorney
Mr. Josef Waldman, Petitioner
Mr. Alex Lebi, Partner
The Board discussed the revisions that were made to this project with the applicants. Mr. Silvestri told the Board that the Public Safety Committee recommended three items to be incorporated into the site plan. He told the Board that these items were site distance and providing a connecting internal roadway and emergency access roadway. He further stated that Erie County has signed-off on the site distance as it meets the requirement.
The Chairman noted that that this proposal has less density than a prior project that had been approved for this property. He further stated that there is no neighbor bordering this project (Route 219 is adjacent on the west side) and he feels there is a need for this type of housing.
Building Inspector David Holland confirmed that the project has met the concerns that were listed in a correspondence dated 9/12/07 from the Public Safety Committee.
Mr. Zajac stated that he feels this is a more favorable project than having apartments built here.
Mr. Liberti noted that the original request had been for approximately 40 variances; the applicant has been reduced their request to 27.
The Chairman stated that he feels the same; he also noted that the density of the project has been lowered.
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 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 AYE
LIBERTI 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. Zajac to GRANT the variance requests for the following reasons with a STIPULATION:
1. There will be no undesirable change to the character of the neighborhood or a detriment to nearby properties created. The majority of the area is bordered by wetlands and Route 219.
2. The benefit sought can not be achieved in some other way.
3. The request is not substantial; there are a large number of buildings.
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 necessarily preclude the granting of the variances.
The variances are granted with the following stipulation:
1. The variances are granted for a period of two-years and will expire on 10/16/09 if the applicant fails to obtain the necessary Building Permit.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
LIBERTI AYE
ZAJAC AYE
THE MOTION IS UNANIMOUSLY PASSED WITH A STIPULATION.
NEW BUSINESS
1. ZBA File #41-07, Family Video Movie Club, Inc., 3009 Union Road, Zoned B-2 (Part of Farm Lot 461, Township 10, Range 7; SBL#152.12-2-7). Requests two (2) Area Variances to construct a multi-tenant building on an existing restaurant building site. (Restaurant building to be demolished.) The first request is for an 8-ft. rear setback. Minimum rear setback for this transition yard is 20-ft., Section 144- 22E(2). The second request is for parking in the front yard. Vehicle parking is prohibited in the front yard in this B-2 Zone, Section 144-29A(4).
APPEARANCE: Mr. John Sciarabba, L.S. – Land Tech
Mr. Todd Bezenah, Regional Manager, Family Movie Club, Inc.
Mr. Sciarabba presented and explained plans to construct a 7,200-sq. ft. single- story building to house their video rental and sales operation (6,000-sq. ft.) and lease space (1,200 sq. ft.). They would like to place the building in the south east corner of the site. He told the Board that there will be no access at the rear of the building; however, a man door per the building code will be installed. Parking will be on all side of the building (except at the rear) and a new 48-space asphalt parking lot is proposed to serve the redevelopment. He further explained that buffering will be put in place for the nearest resident. Mr. Sciarabba noted that the adjacent neighbor was
contacted and they were present this evening. He further told the Board that a fence will be used.
The Board discussed their concerns regarding the 8-ft. setback request and they
asked the applicants if they could move the building forward on the site. The applicants explained that the location of the building is based on parking geometry to provide customer convenience in accessing the building; their customers want to park and gain quick access to the building. It was further noted that if the building is moved forward green space area will be lost at the site. The hours of operation will be 10 A.M. to midnight. The tenant for the space to be leased is not known at this time; however, Mr. Sciarabba told the Board that generally the lease tenant is a coffee or ice cream shop.
The members determined that if the building were moved forward the number of parking spaces at the site would remain in compliance with the code. It was also established that there will be approximately 6 to 9 employees. The applicants noted that they could reconfigure the site and avoid the need for the 12 ft. request, however it is critical to them to keep the parking spaces were they would be convenient to their customers in accessing the store. Mr. Sciarabba told the Board that the lease tenant will need approximately 10 parking spaces.
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:
Mrs. Nadine Jensen
6551 Michael Road
Orchard Park, NY 14127
Mrs. Jensen stated that this is her first opportunity to see the proposed plan; she feels that children will find the tight alley way behind the building, with the fence and will loiter in the space there.
Mr. Liberti stated that if the area complied with the 20-ft. setback he feels children would still loiter behind the building. Mr. Sciarabba told the Board that a camera could be installed at the rear of the building. He further discussed installing gates at either end of the fence to enclose the area.
Mr. Dan Hanson
6545 Michael Road
Orchard Park, NY 14127
Mr. Hanson stated that he feels allowing an 8-feet setback is too short; he also questions who the lease tenant will be and expressed his concerns for the business failing and leaving a vacant building. The Chairman told Mr. Hanson that it is not in the Board’s realm to review that aspect of the request.
Mr. Jerry Walker, brother of property owner
6531 Michael Road
Orchard Park, NY 14127
Mr. Walker stated his sisters are the adjacent property owners. They do not object to the request; however, they are concerned that the space at the rear of the building will become a hang-out for children. He told the Board that they feel having a gate to enclose the fence area is a good idea.
Mr. Zajac stated that he supports having a gate installed as children will find this isolated area.
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. Zajac 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:
LENNARTZ AYE
LIBERTI AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, A NEGATIVE DECLARATION IS MADE UNDER SEQR.
Mr. Liberti made a MOTION, seconded by Mr. Zajac to GRANT the request for the two variances for the following reasons with a STIPULATION:
1. There will be no undesirable change to the character of the neighborhood or a detriment to nearby properties created.
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.
4. The difficulty is self-created, but that does not preclude the granting of the variance.
The variance request is granted with the following stipulation:
1. The Board asks the Planning Board to require the area between the fence and rear of the building be gated to restrict access.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
LIBERTI AYE
ZAJAC AYE
THE MOTION IS UNANIMOUSLY PASSED WITH A STIPULATION.
2. ZBA File #42-07, Dr. Ronald Reeb, 3685 Southwestern Blvd., Zoned I-1 (Part of Farm Lot 32, Township 9, Range 7; SBL#161.00-5-42). Requests an Area Variance to construct a 960-sq. ft. detached garage. Accessory structures in this I-1 Zone shall be no larger than 120-sq. ft. Section 144-24B.
APPEARANCE: Dr. Ronald Reeb, applicant and property owner
Dr. Reeb told the Board that he would like to construct a detached garage for storage and parking for two vehicles; a plow truck and a personal vehicle. This would increase the parking spaces at the site for clients. He noted that the basement area will be available for rent in the future leaving him with little area for storage.
Mr. Zajac established that the proposed garage will be located on the existing asphalt and that parking is at the rear of the building. “Big D Tire” and “Western New York Pediatrics” are the neighbors adjacent to the west and east of the site.
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.
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:
LENNARTZ 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. Liberti, to GRANT the 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.
2. The benefit sought can not be achieved in some other way.
3. The request is not substantial.
4. There will not be an adverse impact on the physical or environmental conditions of the neighborhood or district.
5. The difficulty was not self-created.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
LIBERTI AYE
ZAJAC AYE
THE MOTION IS UNANIMOUSLY PASSED.
3. ZBA File #43-07, Benderson Development, 3995/4005 North Buffalo Road, Zoned B-2 (Part of Farm Lot 16, Township 9, Range 7; SBL#162.13-1-13). Requests a Variance for a 12-ft.-8 inch x 6 ft. high monument sign with 30.6-sq. ft. of sign area. A monument sign shall not exceed 30-sq. ft. in overall area or 5-ft. in height. The text of this sign shall not exceed 20-sq. ft., Section 144-5B.
APPEARANCE: Mr. David Mavis, Benderson Development Sign Designer
Mr. Mavis presented photos of the proposed sign to the members and explained the need to identify the shopping center. He told the Board that a hardship exists due to the easement area and sidewalks being located farther away.
The Chairman noted that he is 99% positive that Benderson Development had indicated at a previous meeting regarding this site that there would be no variances sought for signage. He does not find it appropriate for the applicant to renege on what was told to the Board. Chairman Lennartz also questions if the location of the proposed signage will block site vision for traffic at the shopping center. Building Inspector David Holland told the Board that the sign will not create interference with site vision for motorists. Mr. Mavis presented photos to the Board supporting this fact.
Mr. Liberti established that the sign will be internally illuminated.
Building Inspector Holland explained that the sign location will be parallel to the roadway.
Mr. Mavis told the Board that he worked with Councilwoman Ackerman in designing the proposed sign.
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.
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:
LENNARTZ AYE
LIBERTI AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, A NEGATIVE DECLARATION IS MADE UNDER SEQR.
The Chairman stated that he feels the request is reasonable.
Mr. Liberti made a MOTION, seconded by Mr. Zajac, to GRANT the 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.
2. The request is not substantial.
3. There will not be an adverse impact on the physical or environmental conditions of the neighborhood or district.
4. The difficulty is self-created, but that does not preclude the granting of the variance.
5. The color rendering of the agreed upon signage has been initialed by the Chairman.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
LIBERTI AYE
ZAJAC AYE
THE MOTION IS UNANIMOUSLY PASSED.
4. ZBA File #44-07, Carlos Santos, 8 Hillsboro Drive, Zoned R-1 (Sub Lot 2, Map Cover 2431; SBL#185.10-1-6.1). Requests an Area Variance to construct an addition with a 10-ft. side setback. Minimum side setback for this R-1 lot is 15-ft., Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.
APPEARANCE: Dr. Carlos Santos, applicant and property owner
Mr. Daryl Martin, Architect
Mr. Martin explained that Dr. Santos desires to construction an addition to his existing home to create an additional bedroom. He told the Board that the house is located at an angle on the property and this creates a difficulty. Dr. Santos told the Board that he had spoken with his neighbors and that no one expressed any concerns regarding his request.
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:
A neighbor voiced concerns regarding the lighting that exists at the site. The Chairman told him that the request before the Board was for a side setback variance. He told the individual to contact Dr. Santos directly, as the lighting issue he voiced is a private matter and is not under the Board’s purview.
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. Zajac made a MOTION, seconded by Mr. Liberti, to GRANT the 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.
2. The benefit sought can not be achieved in another way.
3. The request is not substantial.
4. There will not be an adverse 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:
LENNARTZ AYE
LIBERTI AYE
ZAJAC AYE
THE MOTION IS UNANIMOUSLY PASSED.
5. ZBA File #45-07, John Henderson of Niagara Frontier Recovery, 3958 Southwestern Blvd., Zoned B-2 (Part of Farm Lot 40, Township 9, Range 7, SBL#160.12-3-18). Requests a Use Variance to allow a residence and a business to co-exist on this parcel. Uses permitted in R-Districts shall not be permitted on the same lot with uses permitted in B-Districts, Section 144-20D.
APPEARANCE: Mr. John Henderson, applicant and property owner
Mr. Henderson told the Board that this property has had prior dual use variances granted and that the last dual use variance that was granted has expired. He requests that the Board grant a variance for dual usage for a two-year period. He told the Board that the business is growing, but at this point the income from the residential home is important to him. He told the members that over time, he has made several improvements to the property.
Mr. Liberti established that Mr. Henderson spoke to his neighbors and they did not express objections to the variance request being made.
The Chairman stated that a correspondence had been received from Ms. Sue Kane of 3952 Southwestern Boulevard. Ms. Kane voiced her concerns regarding the future maintenance of the property without the owner living in the home and she is concerned about the growth of the business.
Mr. Henderson told the members that he knew of the correspondence sent to the Board. He told the members that he is maintaining the home. Since he became the
owner of the property he has put a new roof on the home, replaced the windows and put in a new driveway.
Mr. Zajac 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:
LENNARTZ AYE
LIBERTI AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, A NEGATIVE DECLARATION IS MADE UNDER SEQR.
The Chairman stated that he feels the request is reasonable.
Mr. Liberti made a MOTION, seconded by Mr. Zajac, to GRANT the variance request for the following reasons with a STIPULATION:
1. There will be no undesirable change in the character of the neighborhood or a detriment to nearby properties created.
2. The request is not substantial.
3. There will not be an adverse impact on the physical or environmental conditions of the neighborhood or district.
4. The difficulty is self-created, but that does not preclude the granting of the variance.
5. The color rendering of the proposed signage has been initialed by the Chairman for the Planning Board’s information and a copy will be placed that file.
The variance is granted with the following stipulation:
1. The variance will expire on 10/16/09.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
LIBERTI AYE
ZAJAC AYE
THE MOTION IS UNANIMOUSLY PASSED.
The Chairman adjourned the meeting at 9:10 p.m.
DATED: October 24, 2007 Respectfully submitted,
REVIEWED: October 29, 2007 Rose Seivert, Secretary
Zoning Board of Appeals
Robert Lennartz, Chairman