ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the September 19, 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
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 7:37 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 AUGUST 21, 2007 REGULAR MEETING:
Upon a motion duly made and seconded, the reading of the minutes of the August 21, 2007 Zoning Board of Appeals meeting was unanimously waived as each Board Member had previously received a copy.
The Ms. Litwin made a MOTION, seconded by Mr. Holmwood to ACCEPT the minutes of the August 21, 2007 meeting as presented.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
HOLMWOOD AYE
LIBERTI AYE
LITWIN 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
HOLMWOOD AYE
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
NEW BUSINESS
1. ZBA File #33-07, Peter Marek, 16 Saybrook St., Zoned R-3 (Sub Lot 95, Map Cover 875; SBL#171.08-3-8). Requests an area variance to construct a shed within the front yard of this corner lot. No accessory structure shall be located within the front yard, Section 144-24A(1)(b).
APPEARANCE: Mr. & Mrs. Peter Marek, Applicants and property owners
Mr. Marek told the Board members that a variance had been granted in 1996 to erect a storage shed upon his property; however, he recently removed that shed and would like to construct a larger one in order to create additional space to store his growing family’s personal items. He explained that this is the only location available on his property to place the shed; a pool is located on the other side of the home. He, also, told the Board that his side lot is considered his front yard, as this is a corner lot.
The members’ questions established pool related and other personal items will be stored in the shed. Mr. Marek will construct the shed and he told the Board that he takes great pride in his craftsmanship. In addition, the shed will have vinyl siding.
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 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; there is some confusion on what is the front of the property between the Town and the resident.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
HOLMWOOD AYE
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
THE MOTION IS UNANIMOUSLY PASSED.
2. ZBA File #34-07, Edgar & Linda Cartwright, 2993 Angle Rd., Zoned R-3 (Part of Farm Lot 402, Township 10, Range 7; SBL#153.12-1-3). Requests an area variance for an addition to a pole barn which will result in 2,700-sq. ft. of accessory building area. Building area of dwelling is 2,003-sq. ft. Accessory area shall not dominate principal use area, Section 144-5B.
APPEARANCE: Mr. & Mrs. Cartwright, Applicants and property owners
Mr. Cartwright explained that he would like to construct an over hang on an existing barn to create a shade area. He presented photos and drawings for the Board’s review, explaining that Roman columns will be constructed to match the ones that exist on his residence. He told the Board that no trees will be removed and he submitted a letter supporting the variance request from Mr. & Mrs. Agostini, 2999 Angle Road. The secretary will enter this document into the permanent file.
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.
Mr. Al Marino (son of the adjacent property owner)
182 Hillside Avenue
Orchard Park , NY 14127
Mr. Marino, representing his father, told the Board that he is not necessarily against the request; however, he would like clarification regarding the variance request; is it for a canopy, or an addition as noted in the agenda sent to him. Verifying that the request is for a canopy, Mr. Marino told the Board that he does not object to the variance request.
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. Holmwood, to GRANT the variance request for the following reasons:
1. There will be no undesirable change to the character of the neighbor hood 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.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
HOLMWOOD AYE
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
THE MOTION IS UNANIMOUSLY PASSED.
3. ZBA File #35-07, James & Colleen Gunning, V/L Hillside Avenue, Zoned R-3 (Sub Lots 258 – 261, Map Cover 860; SBL#152.09-3-47). Requests a variance to construct a two-family dwelling on a lot with a depth of 135-ft. Minimum depth for a two-family dwelling on this R-3 lot is 150-ft., Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.
APPEARANCE: Mr. James Gunning, Applicant and property owner
Mr. Gunning explained that based on medical needs, he and his sister desire to reside next to each other and they would like to construct a 2-family duplex home. He noted that in 1988 the lot had been approved to have a duplex home constructed upon it. He also stated that he did not feel the request will change the character of the neighborhood.
The Board’s questions established that Mr. Gunning is the current owner of the vacant land and that the applicant would like to construct a one-story duplex with the garage located in the center.
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. Zajac made a MOTION, seconded by Mr. Liberti, to GRANT the variance request for the following reasons:
1. There will be no undesirable change to 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 be no adverse effect or impact on the physical or environmental conditions of the neighborhood or district.
5. The difficulty was not self-created as the previous owner had told the applicant wrong information regarding the property.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
HOLMWOOD AYE
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
THE MOTION IS UNANIMOUSLY PASSED.
4. ZBA File #36-07, McDonald’s USA LLC, 3232 Orchard Park Rd., Zoned B-2 Part of Farm Lot 458, Township 10, Range 7; SBL#152.16-2-33.1) Requests an area variance to construct a 176-sq. ft. storage shed. Accessory structures in this B-2 Zone shall be no larger than 120-sq. ft., Section 144-24B.
APPEARANCE: Mr. Randy Bebout, FRA Engineering representing McDonald’s
Mr. Bebout told the Board that the purpose of the shed is to house equipment such as a snow blower, lawn mower and combustible materials; there is no place to store these items in the restaurant building. The proposed storage shed will be constructed with matching brick and will only be accessed from inside the trash corral. Landscaping will be used to buffer the area.
The Board members reviewed the plan, noting that the site is more appealing than what previously existed here.
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
Ms. Litwin 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
LITWIN AYE
HOLMWOOD AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, A NEGATIVE DECLARATION IS MADE UNDER SEQR.
Mr. Liberti made a MOTION, seconded by Ms. Litwin, to GRANT the variance request based on the following reasons:
1. There will be no undesirable change in the character of the neighborhood; the shed will actually make the site appear more uniform.
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:
LENNARTZ AYE
HOLMWOOD AYE
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
THE MOTION IS UNANIMOUSLY PASSED.
5. ZBA File #37-07, Adolph & Kristine Rave, 6263 Newton Road, Zoned A-1 (Part of Farm Lot 19, Township 9, Range 7; SBL#184.00-4-6). Requests an area variance to construct a 20 ft. x 30 ft. garage/storage building within the front yard. No accessory structure shall be located within the front yard, Section 144-24(A)(1)(b).
APPEARANCE: Mr. & Mrs. Rave, Applicant and property owner
Mr. Rave told the Board that his home is built on and in a hill; it is small and there is little storage space available. He is forced to store items underneath the living area, including flammable liquids, such as gasoline. Mr. Rave would like to construct a garage/storage building to create additional storage space; however, based on the
topography and drainage of his property, the best location to place the shed is in his front yard. He told the Board that he replaced a cellar wall due to the water issues that exist here and he is leery of digging into the hill area. Mr. Rave submitted signed letters supporting his variance request from neighbors residing at the following addresses; 6195 Newton Road, 6285 Newton Road, 6245 Newton Road, 6274 Newton Road, and 6222 Newton Road,. He noted that one (1) neighbor objects to the request and that neighbor is present this evening.
The Chairman established that the shed would be approximately 300-feet from the roadway, it will be screened by an existing tree and additional landscaping will be planted to enhance the area. Mr. Rave told the Board that he would like to eliminate his yard of unsightly items that he has no room for in his home.
The Board members’ questions established that Mr. Rave will not carry on a business from the proposed building.
Mr. Holmwood noted that he feels the location chosen for the garage/storage shed is a good location.
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.
Mr. Metzger
6315 Newton Road
Orchard Park , NY 14127
Mr. Metzger stated that he does not support the variance request. He told the members that no other property in this neighborhood has a storage shed in the front yard; if the health of the existing Spruce tree diminishes, the building will not remain screened as discussed. He, also, voiced concerns for property values being affected, noting that a previous variance request led to the smaller home being built upon this lot. He requests that the Board either deny the request, or table their review. Mr. Metzger stated that by using his engineering background and city planning experience he would be happy to discuss with Mr. & Mrs. Rave how to achieve their goal through alternative solutions.
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 feels using a car port/shed as Mr. Metzger suggests will diminish the value of the surrounding properties.
Mr. Liberti discussed locating the proposed garage/shed within the side lot; Mr. Rave told the Board that he does not feel digging into the hill is a good idea, given the drainage concerns. He also feels that the roof line would not be attractive.
Mr. Zajac discussed with Mr. Rave constructing an addition onto the existing home. Mr. Rave explained to the Board that, again, the water concerns preclude this and he does not feel an addition to the existing home will be attractive.
The Chairman established that Mr. Rave will not operate a business from the proposed garage/storage shed. Only personal items will be kept in the building.
Ms. Litwin made a MOTION, seconded by Mr. Holmwood, to GRANT the variance requests based on the following reasons:
1. There will be no undesirable change to the character of the neighborhood as the placement is further back and screened by a tree.
2. The benefit can not be sought or achieved in any other way due to the topography of the land.
3. Locating the structure further back may create additional problems with drainage issues that could affect the entire neighborhood.
4. The request is not substantial.
5. There will be no adverse effect or impact on the physical or environmental conditions of the neighborhood or district.
6. The difficulty is not self-created. It is preferred that flammable liquids are stored off site of the home; this is an important safety feature.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
HOLMWOOD AYE
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
THE MOTION IS UNANIMOUSLY PASSED.
6. ZBA File #38-07, Don & Joyce Babski, 49 Summit Avenue, Zoned R-3 (Part of Sub Lots 96-98, Map Cover 1534; SBL#151.16-6-1.11). Requests an area variance to install a 5-ft. high fence in a front yard. Maximum height of a fence in a front yard is 3-ft., Section 144-22A(1).
APPEARANCE: Mr. & Mrs. Babski, Applicants and property owners
Mr. Babski told the Board that he desires to have a 5-foot fence in his front yard to help keep other dogs from approaching his dog, which is kept on a leash.
The Chairman established that Mr. Babski spoke to his neighbors and that they did not object to the variance request. Mr. Babski told the Board that other neighbors have fences that are 5-feet in height.
Mr. Liberti established that the proposed fencing will have a wrought iron look.
Mr. Holmwood established that the Babski’s own a Chocolate Labrador Retriever. He also discussed the placement of the proposed fencing with Mr. Babski.
Ms. Litwin told Mr. & Mrs. Babski that they should contact animal control if dogs are running loose in the neighborhood, as the Town has a leash law.
Mr. Zajac established that in addition to having their dog kept on a leash, the Babski’s have an electric fence on their property; however, Mr. Babski told the members that this does not keep other dogs from visiting their dog. Mr. Babski told the Board that they recently moved here and that their dog is 2-1/2 years old. Mr. Zajac also questioned the placement of the fencing with the Babski’s.
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 stated that she does not support having a 5-foot fence in the front yard; she feels the hardship should be handled in another way.
The Chairman and Mr. Holmwood stated that they agree with Ms. Litwin.
Ms. Litwin made a MOTION, seconded by Mr. Zajac, to DENY the variance request based on the following:
1. It will create an undesirable change to the character of the neighborhood and a detriment to other nearby properties.
2. The benefit sought can be achieved in some other way.
3. The request is substantial.
4. There will be an adverse effect or impact on the neighborhood.
5. The applicant should have used due diligence at the time of purchasing the home with regards to the Town’s ordinance limiting the height of fencing in the front yard area to three-feet.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
HOLMWOOD AYE
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
THE MOTION TO DENY THE VARIANCE IS UNANIMOUSLY PASSED.
7. ZBA File #39-07, John & Lisa Waterhouse, 5945 Cole Road, Zoned A-1 (Part of Farm Lot 59, Township 9, Range 7; SBL#185.04-2-42). Requests an area variance to construct a shed with a 12.6-ft. side setback. Minimum side setback for this A-1 lot is 20-ft., Section 144-9B, Schedule of Height, Lot, Yard and Bulk Regulations.
APPEARANCE: Mr. & Mrs. Waterhouse, Applicants and property owners
Mr. Waterhouse explained to the Board that he removed two deteriorating storage sheds that had existed on his property and that he would like to erect a new storage shed and locate it in a secure area near his residence. He submitted a petition signed by three neighbors stating that they had no objection to the variance request. The Chairman stated that the neighbors residing at 5965 Cole Road, 5927 Cole Road and 5940 Cole Road have indicated that they support the request for the variance. The secretary will enter this document into the permanent file.
The Chairman discussed the location of the proposed shed with the applicants and he established that no trees will be removed to erect the shed. The shed will be approximately 120 to 130-feet from the roadway.
Mr. Zajac established that a foundation exists from a former shed and that Mr. Waterhouse would like to place the proposed shed upon it. He would also like to have the shed located here for security reasons as it is closer to the residence.
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. Zajac made a MOTION, seconded by Ms. Litwin, to GRANT the variance request based on the following:
1. There will be no undesirable change to the character of the neighborhood; removal of the deteriorating sheds was an improvement.
2. The benefit could be achieved in some other way; however, due to the security issues raised by the applicant and the fact that a foundation already exists here, it benefits the applicant to place the shed in the proposed location.
3. The request is not substantial.
4. There will be no adverse impact on the physical or environmental conditions of the neighborhood or district.
5. Given that another shed had already been placed here, I do not believe the difficulty is self-created.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
HOLMWOOD AYE
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
THE MOTION IS UNANIMOUSLY PASSED.
8. 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, 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. Phil Silvestri, Silvestri Architects
Mr. Carmen Provenzano, Silvestri Architects
Mr. Peter Sorgi, Attorney
Mr. Josef Waldman, Petitioner
The Chairman noted that a revised submission was made by the applicant one-day prior to the meeting date. He told the applicant that he finds it is horrible when file material is not received in a timely manner, as the members have already reviewed the file. He further explained that the Board has not been allowed sufficient time to review the new material that has been presented regarding this request.
Mr. Sorgi apologized and explained that extenuating circumstances created the delay in submitting the material to the Board. He told the Board that they had met with the Public Safety Committee and their comments were not received until just recently. The revised plan is based on these comments. Mr. Sorgi discussed the revised plan with the members; however, the members determined that they had not had ample time to review the revised plan. Building Inspector David Holland also noted that he would need time to review the plan.
Ms. Litwin made a MOTION, seconded by Mr. Liberti to TABLE the review of this case.
THE VOTE ON THE MOTION BEING:
LENNARTZ AYE
HOLMWOOD AYE
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
THE MOTION TO TABLE THE REVIEW OF THE CASE TO ALLOW ADEQUATE TIME TO REVIEW THE REVISED PLAN IS UNANIMOUSLY PASSED.
Chairman adjourned the meeting at 9:24 p.m.