ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the December 16, 2008 meeting held in the Basement Public Meeting Room, S4295 South Buffalo Street.
MEMBERS PRESENT: Jo Ann Litwin, Chairwoman
Joseph Liberti
Donald Holmwood
Robert Metz
Richard Zajac
Dwight Mateer, Alternate
OTHERS PRESENT: David Holland, Code Enforcement Officer
J. Michael Wolf, Deputy Town Attorney
Rosemary Seivert, Zoning Board of Appeals Secretary
The members recited the Pledge of Allegiance and the Chairwoman 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 NOVEMBER, 2008 REGULAR MEETING:
Upon a motion duly made and seconded, the reading of the minutes of the November 18, 2008 Zoning Board of Appeals meeting was unanimously waived as each Board Member had previously received copies.
Mr. Metz made a MOTION, seconded by Mr. Zajac to ACCEPT the minutes of the November 18, 2008 Zoning Board of Appeals meeting as presented.
THE VOTE ON THE MOTION BEING:
LITWIN AYE
LIBERTI ABSTAINED
HOLMWOOD AYE
METZ AYE
MATEER AYE
ZAJAC AYE
THE MOTION IS UNANIMOUSLY PASSED WITH ONE (1) ABSTENTION.
The 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 Chairwoman stated that site inspections of all cases presented tonight were made by:
LITWIN AYE
LIBERTI AYE
HOLMWOOD AYE
METZ AYE
MATEER AYE
ZAJAC AYE
THE VOTE ON THE RESOLUTION BEING UNANIMOUS, THE RESOLUTION WAS DULY ADOPTED.
Chairwoman Litwin announced that agenda Item #43-08 would be reviewed first by the Board.
NEW BUSINESS
1. ZBA File #39-08, Louis
Alberalla, 4109 N. Buffalo Road, Zoned B-3 (Part of Farm Lot 16, Township 9,
Range 7; SBL#162.13-2-14). Requests a Use Variance to permit an “Eating
and Drinking Establishment” in this B-3 Zone. Eating and Drinking
Establishments are prohibited in this B-3 Zone, Section 144-9A, Schedule of Use
Controls.
APPEARANCE: Mr. Louis Alberalla, Applicant/Property Owner
Mr. Alberalla told the Board that this property was used as a café for approximately the last 11-years. He explained that the facility has been vacant for the last 10-months and that he has a tenant ready to sign a 5-year lease to operate a Sushi Bar restaurant.
Mr. Liberti re-verified that Mr. Alberalla has a tenant for the facility ready to commit to a five-year contract.
The 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 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 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. Zajac made a motion, seconded by Mr. Metz, 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 UNANIMOUS, A NEGATIVE DECLARATION IS MADE UNDER SEQR.
LITWIN AYE
LIBERTI AYE
HOLMWOOD AYE
METZ AYE
ZAJAC AYE
Mr. Zajac made a MOTION, seconded by Mr. Liberti, to GRANT the Use Variance request for the following reasons with a STIPULATION:
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 alleged hardship was not self-created.
The variance is granted with the following stipulation:
1. The variance is only connected to the business moving in to the facility and leasing.
THE VOTE ON THE MOTION BEING:
LIBERTI AYE
LITWIN AYE
HOLMWOOD AYE
METZ AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED WITH A STIPULATION.
2. ZBA File #40-08, Ruth Anner, 5846 Berg Road, Zoned R-3 (Part of Farm Lot 453, Township 10, Range 7; SBL#152.10-3-12). Requests an Area Variance for a front porch addition with a 22-ft. +/- front setback. Front setback for this R-3 lot is 30-ft., Section 144-9B Schedule of Height, Lot, Yard & Bulk Regulations.
APPEARANCE: Mr. George Ehrhart, Contractor
Ms. Kathy Marriott (Ruth’s daughter)
It was verified that Ms. Marriott could represent her mother (Ruth Anner) in this request before the Board. She has a “power of attorney” for her mother.
Mr. Ehrhart explained to the Board the proposed porch addition. He explained the plan included space for a future ramp, if needed.
Mr. Mateer discussed the request for a porch that extends 10-ft. from the house and verified that it could not be reduced; a roof column in the proposed design would interfere with the anticipated wheel chair ramp.
The 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 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 Chairwoman then asked if the Secretary had received any additional communications either for or against granting the variance.
The Secretary stated that Erie County Department of Public Works Division of Highways had responded that the property owner should understand that they will be closer to the roadway which could increase the traffic noise on the porch. Also, any proposed work in the highway R.O.W. will require a highway work permit.
Mr. Metz made a MOTION, seconded by Mr. Holmwood, to GRANT the Area 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 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 some what self-created; but that does not preclude the granting of the variance.
LITWIN AYE
LIBERTI AYE
HOLMWOOD AYE
METZ AYE
ZAJAC AYE
THE MOTION IS UNANIMOUSLY PASSED.
3. ZBA File #41-08, Jeffrey M. Lyons, 3128 Bieler Road, Zoned R-3 (Part of Farm Lot 452, Township 10, Range 7; SBL#152.10-2-19). Requests an area variance to allow a fence exceeding 6-ft. in height in a side yard. Maximum height for a fence in a side yard is 6-ft., Section 144-22A(2).
APPEARANCE: Mr. & Mrs. Jeffrey Lyons, Applicant/Property Owner
Mr. Lyons stated that he had submitted a letter detailing his request to allow a privacy fence. He briefly explained to the Board that his neighbor, Mr. Zak, had constructed an addition and deck at the back of his home. Mr. Lyons told the members that Mr. Zak’s deck is elevated over Mr. Lyons’ low stone patio area and he further explained that both homes were built close to one another, with approximately 17-feet of distance between them. This makes privacy almost non-existent. To create separation between the two houses and aid with the privacy issue, both property owners mutually agreed upon the fencing that is now in place.
Mr. Metz verified that Mr. Lyons has no intention of extending or continuing the fencing in the backyard.
Mr. Zajac established that Mr. Lyons’ neighbor had constructed the addition after Mr. Lyons had purchased the property and had moved into the residence.
Mr. Liberti established that the fencing is strictly for privacy.
Mr. Mateer inquired if Mr. Lyons had pursued the option of using plantings, such as Norway spruce trees to create a privacy buffer. Mr. Lyons told the Board that plantings were considered; he had researched this option at a local nursery and found Arborvitae would be effective, but were very costly. He told the Board that he and Mr. Zak discussed the need for privacy and they both agreed that fencing would be acceptable. A letter from Mr. Zak is on record in the Zoning Board file signed by Mr. Zak indicating that he has no objections to the fence or the variance that Mr. Lyons is seeking.
The 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 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 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, other than what is in the file.
The Chairwoman noted that a petition is in the file signed by residents opposing the request for the variance; however, she is not sure why they are against the variance request, because they cannot see the fence. Also, the neighbor that can see the fence supports the request and we have documentation stating this.
Mr. Zajac noted that the petition is addressed to the Planning Board, which we are not; I feel, “that legally we cannot take this document into consideration”. “We could change it to say “Zoning Board of Appeals”, but all these people signed it with it written the way it was”.
Mr. Liberti made a MOTION, seconded by Mr. Holmwood, to GRANT the Area Variance request for the following reasons with a STIPULATION:
1. There will be no undesirable change to the character of the neighborhood.
2. The request is not substantial.
3. There will be no adverse effect or impact on the physical or environmental conditions of the neighborhood.
4. The difficulty is self-created; but that does not preclude the granting of the variance.
This variance is made with the following Stipulation:
1. No additional extending or continuing of the existing fencing shall be made.
THE VOTE ON THE MOTION BEING:
LITWIN AYE
LIBERTI AYE
HOLMWOOD AYE
METZ AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED WITH A STIPULATION.
4. ZBA File #42-08, Boston Valley Terra Cotta, 6860 South Abbott Road, Zoned A-1 (Part of Farm Lot 25, Township 9, Range 7; SBL#197.00-1-12.1). Requests a variance to extend a Non-Conforming Use with a 17,200-sq. ft. building addition. A Non-Conforming Use may not be extended except within the same building, Section 144-60.
APPEARANCE: Mrs. Patricia Bittar, Wm. Schutt & Associates
Mr. John Krouse, President
Mr. Krouse told the Board that his firm has been struggling with a need for additional space to accommodate new equipment. To alleviate this problem, property was purchased from an adjacent land owner; Mr. Krouse discussed the proposed plans to construct a 17,200-sq.ft. building addition. He told the members that the proposed addition will increase office space and expand the facility to accommodate new
equipment. He also discussed the proposed site improvements, such as the relocation of a detention pond and the existing driveway. He told the Board that a new curb-cut will be installed along S. Abbott Road and he also noted that a building currently being used at the site will not be demolished as it has historical value.
The Board members’ questions established that numerous variances have been granted over the years for this property; it was learned that if further expansion becomes necessary Mr. Krouse will seek to have the property rezoned. He also told the Board that he intends to purchase additional land from the property owner that he recently acquired the two small triangle portions from.
The 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 Chairwoman then asked if there was anyone in the audience who would wish to speak against the granting of the variance.
OPPONENT:
Mr. George Preshoff
5721 Seufert Road
Orchard Park, NY 14127
Mr. Preshoff stated that he has not voiced objections to other variance requests petitioned by the applicant; however, he would like to discuss the lighting from Mr. Krouse’s property that is creating an annoyance for his property. Mr. Preshoff told the Board that he does not want lights to shine on his property for 24-hours straight. He, also, discussed the roadway and concerns he has regarding vehicles accessing safely into the site and for emergency vehicles attempting to turn into the site.
Chairwoman Litwin verified with Mr. Preshoff as to where his property was located on the site plan; she further confirmed that the business is operated in two-shifts. Mr. Krouse stated that he would be happy to discuss Mr. Preshoff’s lighting concerns and resolve this issue.
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 UNANIMOUS, A NEGATIVE DECLARATION IS MADE UNDER SEQR.
LITWIN AYE
LIBERTI AYE
HOLMWOOD AYE
METZ AYE
ZAJAC AYE
The 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. Holmwood made a MOTION, seconded by Mr. Liberti, to GRANT the Variance 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 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 was not self-created.
LITWIN AYE
LIBERTI AYE
HOLMWOOD AYE
METZ AYE
ZAJAC AYE
THE MOTION IS UNANIMOUSLY PASSED.
5. ZBA File #43-08, S & G of Orchard Park, Inc. Vacant Land North end of Iroquois Drive, Zoned R-3 (Part of Farm Lot 450, Township 10, Range 7; SBL#152.10-5-7). Requests and Area Variance to locate (5) buildings with a front setback of less than 50-feet. Minimum front setback for these multi-family buildings is 50-ft., Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.
APPEARANCE: Applicant was not present.
Chairman Litwin stated that correspondence had been received from the Planning Coordinator and the Town Engineering Department regarding the submission of the Site Plan; it was learned that the Site Plan submitted to the Zoning Board of Appeals is different than the one the applicant provided to the Planning and Engineering Offices. Chairman Litwin verified that the applicant had not arrived and that many residents were present for the Board’s review of this case. She told those present that based on the information received; the Zoning Board members must table their review of this case pending a review of this plan by the Planning and Engineering Offices. All neighbors will be re-notified by the Secretary when the applicant has been rescheduled for review by the Board.
Chairman Litwin made a MOTION, seconded by Mr. Liberti, to TABLE the review of this case.
LITWIN AYE
LIBERTI AYE
HOLMWOOD AYE
METZ AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION TO TABLE IS HEREBY PASSED.
There being no further business to be presented to the Board at this time Chairwoman Litwin adjourned the meeting at 8:08 P.M.
DATED: January 5, 2009 Respectfully submitted,
REVIEWED: January 5, 2009 Rosemary Seivert, Secretary
Zoning Board of Appeals
Jo Ann Litwin, Chairwoman