ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the July 15, 2008 meeting held in the Basement Public Meeting Room, S4295 South Buffalo Street.
MEMBERS PRESENT: Jo Ann Litwin, Chairwoman
Donald Holmwood
Joseph Liberti
Richard Zajac
Dwight Mateer, Alternate
EXCUSED: Robert Metz
OTHERS PRESENT: David Holland, Code Enforcement Officer
J. Michael Wolf, Deputy Town Attorney
Rosemary Seivert, Zoning Board 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 JUNE 17, 2008 REGULAR MEETING:
The June 17, 2008 minutes were not available and Chairwoman Litwin noted that they will be voted on at the August 19, 2008 meeting.
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
ZAJAC AYE
MATEER AYE
NEW BUSINESS
1. ZBA File #19-08, John
& Deborah Sisson, 7256 E. Quaker Road, Zoned R-1 (Part of Farm Lot 8,
Township 9, Range 7; SBL#162.18-2-21). Requests an area variance to allow
an in-ground swimming pool within the front yard. No accessory structure shall
be located within the front yard. Section 144-24A(1)(b) Note: This proposed
pool is to be located adjacent to an existing front yard pool which will be
removed.
APPEARANCE: Mr. & Mrs. Sisson, Applicant/property owners
Mr. Sisson told the Board that he recently purchased a home that was built in 1929 with a pool located in what he believes is the front yard. During renovations being made he was advised by his contractor that the pool had deteriorated and was beyond saving. He further told the Board that he would like to remove the existing pool and construct a new pool at the side of the home where it would be more convenient to supervise its use, with regards to safety and provide for its maintenance.
The Boards’ questions established that it is debatable what is the front and back yard for this residence. The members felt there was no reason not to allow the request.
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.
Chairwoman Litwin stated that she feels the new location of the pool is a better choice than the former one.
Mr. Liberti made a MOTION, seconded by Mr. Mateer, to GRANT the variance request with STIPULATIONS as follows:
1. There will be no undesirable change to the character of the neighborhood or a detriment to nearby properties; there is already an existing pool present.
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 some what self-created; but that does not preclude the granting of the variance.
This variance is granted with the following stipulations:
1. The existing pool is to be removed.
2. The applicant is to maintain the existing greenery/shrubbery and keep the area pristine.
THE VOTE ON THE MOTION BEING:
LITWIN AYE
LIBERTI AYE
HOLMWOOD AYE
ZAJAC AYE
MATEER AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED WITH STIPULATIONS.
2. ZBA File #20-08, Pet Heaven Funeral Home, 3614 N. Buffalo Road, Zoned B-3 (Part of Farm Lot 15, Township 10, Range 7; SBL#161.08-2-28). Requests a variance to relocate a freestanding sign providing a 4-foot R.O.W. setback. Minimum R.O.W. setback for this freestanding sign is 10-feet, Section 144-38B(1).
APPEARANCE: Mr. Joseph Wales, Applicant
Mr. Wales explained to the Board that he worked directly with Building Inspector Geist in locating his sign to conform to the Town Code. He described the difficulties he encountered, noting that the sign is presently located in a conforming area 41-feet off of the roadway. He told the Board that motorists do not see the sign until after they have gone beyond his driveway; they must turn around and come back and Mr. Wales feels this is not safe. He also told the Board that if he locates the sign in front of an existing pine tree on the property site distance issues are created for motorist. Mr. Wales does not want to remove the tree. Therefore, he requests that he be allowed the variance he is requesting.
Mr. Liberti established that the existing sign will be moved to the new location.
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. 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:
LITWIN AYE
LIBERTI AYE
HOLMWOOD AYE
ZAJAC AYE
MATEER 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 based on the following reasons:
1. There will be no undesirable change to the character of the neighborhood or a detriment to nearby properties; there are other businesses with existing signs in this area.
2. The benefit sought cannot be achieved in another way; locating the sign anywhere else on the property creates additional problems.
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
LIBERTI AYE
HOLMWOOD AYE
ZAJAC AYE
MATEER AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED.
3. ZBA File #21-08, John & Sandra Kowalczyk, Vacant Land Grandview Trail, Zoned A-1 (Sub Lot 1, Map Cover 2722, SBL#185.17-1-1). Requests 2 area variances to construct a single-family dwelling. First, to allow a 50.33-foot side street setback. Minimum side street setback for this corner lot is 75-feet. Second, to allow a lot coverage area of 9.2%. Maximum lot coverage for this A-1 lot is 7%, Section 144-9B, Schedule of Height, Lot, Yard and Bulk Regulations.
APPEARANCE: Mr. John Kowalczyk, Applicant/property owner
Mr. Jon Zywiczynski, RA
Mr. Zywiczynski explained to the Board that this home was carefully designed to fit upon this corner lot and that the building plans were approved by the realtor, Mr. Merle Whitehead of Realty USA, prior to Mr. Kowalczyk’s purchase of the property. However, upon applying for a Building Permit, Mr. Kowalczyk was informed that his proposed building plans contained two code violations of the zoning district; one for a setback allowance and the other for lot coverage.
Mr. Zywiczynski explained that with regards to the setback allowance, the home will be approximately 100-feet from the edge of the roadway if the R.O.W. is included in the measurement. Mr. Zywiczynski feels that Mr. Kowalczyk will suffer a hardship if he complies with the Town Code with regards to lot coverage, as he will loose one of his two-car garages and two bedrooms. He noted that homes in this development are typically built with 4-car garages and that Mr. Kowalczyk requires the two-bedrooms for his two children.
Mr. Zywiczynski stated that Mr. Kowalczyk attempted to negotiate the purchase of the adjacent lot; however, he felt the price of the lot was exorbitant.
Mr. Kowalczyk submitted a petition signed by the following neighbors supporting his variance requests; Carol Vogel, 2 Grand View Trail, Susan Cook, 5859 Scherff Road and Janet Taber, 5845 Scherff Road.
Mr. Zajac established that 3,600 sq. ft. is the minimum square footage requirement mandated by the homeowners association for a ranch home; Mr. Kowalczyk’s proposed home exceeds the requirement by 1,400 sq. feet.
Mr. Mateer established that Mr. Zywiczynski had misinterpreted the Town’s Zoning law with regards to the setback requirements when designing Mr. Kowalczyk’s home.
The Chairwoman then asked if there was anyone in the audience who would wish to speak in favor of granting the variances.
(Twice)
NO RESPONSE
The Chairwoman then asked if there was anyone in the audience who would wish to speak against the granting of the variances.
Mr. Joseph Kubarek
8 Grandview Trail
Orchard Park, New York 14127
Mr. Kubarek does not support the variance requests. He feels the adjacent lot is available and that the applicant should purchase additional land and not be granted the variance requests. He also noted that the home owner association minimum square footage requirement for a home constructed here is 3,200-sq. ft.
Mr. Marves Isaksen
6 Grand View Trail
Orchard Park, New York 14127
Mr. Isaksen does not support the variance requests.
Mr. Skwara
4 Grandview Trail
Orchard Park, New York 14127
Mr. Skwara stated that he does not support the variance requests. He feels the applicant should meet the minimum requirements.
Mr. Michael Cain
9 Grandview Trail
Orchard Park, New York 14127
Mr. Cain does not support the variance requests; he feels the applicant should purchase the adjacent lot that is available and be code compliant.
The Chairwoman then asked if the Secretary had received any additional communications either for or against granting the variances.
The Secretary stated that no other communications have been received.
The Board discussed how to reduce or modify the proposed home; Mr. Kowalczyk told the Board that due to the size of his family he did not feel he could not down size the home in any manner. He explained that he will be utilizing every room in the home. He further stated that he would not have bought the lot if he had known the proposed house would not have been allowed.
Mr. Liberti noted that this is a tricky lot; he stated that he feels the setback issue is not a problem; however, the lot coverage is.
Chairman Litwin discussed maintaining the State R.O.W. area with the applicant to diminish the appearance of the setback issue.
Chairman Litwin made a MOTION, seconded by Mr. Holmwood, to GRANT the variance requests with a STIPULATION as follows:
1. There will be no undesirable change to the character of the neighborhood or a detriment to nearby properties.
2. The benefit sought can be achieved in another way through the purchase of the adjacent lot; however, it is not economically feasible for the applicant to purchase the lot.
3. The request seems substantial because the design is a ranch home rather than a two- story home; by having a two-story home a detriment would occur to the property as you could not see over the home.
4. There will be no adverse effect or impact on the physical or environmental conditions of the neighborhood.
5. The difficulty is self-created; however, when the applicant purchased the property he was told the proposed home would not pose a problem.
This variance is granted with the following stipulation:
1. The applicant is to maintain the front and side areas that belong to the State and County R.O.W. and make this area part of his lawn and forever maintain the area.
THE VOTE ON THE MOTION BEING:
LITWIN AYE
LIBERTI NAY
HOLMWOOD AYE
ZAJAC AYE
MATEER NAY
THE VOTE ON THE MOTION BEING THREE (3) IN FAVOR AND TWO (2) AGAINST, THE MOTION IS HEREBY PASSED WITH A STIPULATION.
4. ZBA File #22-08, Woodbridge Contracting Group, 5285/5287 Chestnut Ridge Road, Zoned R-3 (Part of Farm Lot 13, Township 9, Range 7; SBL#185.05-3-11.1). Requests area variances for a proposed multiple dwelling complex. First, to allow this complex on a 4.08-acre parcel. Required minimum lot area is 10-acres, Section 144-9B. Second, to allow a density of 8.8-units per acre. Maximum allowable density is 8-units per acre, Section 144-9B. Third, to allow a number of units with a habitable floor area of less than 800-square feet. Minimum habitable floor area is 800-square feet, Section 144-9B. Last, to allow a parking lot closer than 25-feet to the front of a building. No parking lot should be closer than 25-feet to the front of any building, Section 144-46 C(4)(b).
APPEARANCE: Mr. Dennis Boyle, Woodbridge Contracting Group
Mr. Ray Walters, Attorney
Dr. Scott Westmeyer, Partner
Mr. Boyle explained the proposed project to the Board, noting that he would like to “set the record straight” regarding a correspondence that had been distributed regarding this project that contained several errors; the proposed redevelopment is not designed to be low-income apartments. Mr. Boyle stated that he is proposing to convert two (2) abandoned buildings at the site into 20-market rate apartments, in the range of $700 to $1,000 per month, plus utilities. In addition, he proposes to construct two-buildings offering a total of 16-rental units. He noted that the property does not need to be rezoned. However, he will be seeking a Special Exception Use to allow multiple dwelling units, which is the same zoning as the Orchard Commons, located at the rear of the property. He feels the proposal is compatible with the existing Orchard Commons and he also commented that at one time the Orchard Commons and this parcel had been one parcel. The front of the property was rezoned to Special Exception Use, Medical and the rear was zoned Special Exception Use, Multiple Dwelling for the Orchard Commons to be built.
Mr. Boyle told the Board that a study of the property was performed by GAR Associates of Amherst, New York. A copy of the study was submitted to the Board for their review; the study concluded that the best use of the property would be to convert the property into rental apartments.
Mr. Boyle presented statistics and information pertinent to the site, such as the fact that 53% green space area will exist at the site (the Town requirement is 15%); he feels there will be no additional burden to the Town of Orchard Park’s public services created; and the project is compatible with the adjacent Orchard Commons.
Mr. Boyle described the four-variance requests that he is seeking; explaining that he feels the variances are minor, dealing with setbacks, square footage, acreage and the number of units. He also told the Board that he feels the redevelopment of the site will enhance the value of the properties surrounding it. He stated that Lydon Landscaping was hired to design a landscaping plan to compliment the project.
Mr. Walters stated that he submitted a copy of the Erie County Planning Department’s response to the ZR-1 Form sent to their office by the Zoning Board of Appeals Secretary to the Board, prior to tonight’s meeting. He spoke regarding this submission and provided further comments on the project.
Chairwoman Litwin noted that she received Mr. Walters submission at 7:20 P.M. (10-minutes prior to the meeting) supposedly coming from the Erie County Planning Department; the corresponspondence was not signed nor on Erie County Planning Department letterhead, therefore, the submission can not be entered into the record. She further noted that this is one of the documents that the Board needs to have when determining their decision. Chairwoman Litwin stated that the applicants have referred to their project as being a part of the “Orchard Commons” land several times. She cautioned the applicants that this project is not a part of the Orchard Commons land; the applicants do not own the Orchard Commons and she told them that their project must stand alone.
Chairwoman Litwin questioned if the number of the apartments could be reduced by redesigning the proposed apartment complex. Mr. Boyle explained that the design is limited due to the stairwells and concrete lifts.
Dr. Scott Westmeyer noted that he was Mr. Boyle’s partner in this project. He explained his intentions to renovate this site to the Board.
The members’ questions discussed leasing terms. In addition, the following was discussed by the Board members:
• Mr. Mateer asked if a larger building could be constructed rather than two buildings.
Mr. Boyle stated that one larger building would not be attractive and that a renter would be left without window light on the side of the unit.
• Mr. Holmwood established that the proposal is for 36-units; 8 – one bedroom, 26, 2- bedroom.
• The Board members discussed the hardship created to Mr. Boyle with this project by not granting the requested variances. The discussed included the down sizing of this project the return time on recouping his investment.
Mr. Boyle stated that there is a common bond between these two properties; an easement was granted for the “Orchard Commons” to use the existing driveway to get to their property.
The Chairwoman then asked if there was anyone in the audience who would wish to speak in favor of granting the variance.
PROPONENT
Anthony Juliano, Realtor
Representing M.J. Peterson Realty
Orchard Park, New York 14 127
Mr. Juliano stated that he supports the variance requests. He told the Board that he has diligently tried to market this site for the approximately eight-years and has not been able to sell the property. He feels that the proposed renovations will increase the value of the surrounding properties.
Mr. John Bonerb
100 N. Lane Drive – Apt. 5
Orchard Park, New York 14127
Mr. Bonerb supports the requests for the variances, noting that he would like to see the site refurbished.
Mr. William Sahlem
5255 Chestnut Ridge Road
Orchard Park, New York 14127
Mr. Sahlem stated that he supports the variance requests and that he feels this is a great project. He noted that he owns the adjacent property and that he has been waiting for the site to be refurbished. He further stated that he feels it will be a huge mistake to let this project go.
The Chairwoman then asked if there was anyone in the audience who would wish to speak against the granting of the variance.
OPPONENT
Ms. Amy Mueller
5264 Chestnut Ridge Road
Orchard Park, New York 14127
Ms. Mueller noted that she has a degree in finance from UCLA. She does not feel the applicant has fully researched population and traffic issues that will impact the area. She feels additional research is needed by both sides; does this project meet the community’s needs… empty nesters? Will Mr. Boyle be able to rent all these
apartments? She feels these are small apartments at just 800-sq. ft. in size. Ms. Mueller would like to see a smaller project and she mentioned other ways to develop the site.
Ms. Rose Schmidt
5314 Chestnut Ridge Road
Orchard Park, New York 14127
Ms. Schmidt spoke regarding the proposed project. She voiced her concerns regarding rent based at $700 to $1,000 per month. She, also, stated that she feels that the property will not contribute all that much to the tax base of the Town of Orchard Park. She then read a prepared statement commenting on the fact that she feels the applicant’s variance requests are major, when compared to variance requests that have been made in the last year before this Board. She discussed the variance requests being made individually; she commented on the congestion in the area, the flooding problems of the area and no sewers; the additional educational needs that will be created; the strain on emergency services; rental tenants are not property tax payers; additional parking that will be needed; noise from the construction of the development and added traffic; and she concluded that Mr. Boyle’s difficulty is self-created for his own monetary enrichment. She feels the request should be denied.
Mr. Raymond Castan
5296 Chestnut Ridge Road
Orchard Park, New York 14127
Mr. Castan noted that traffic has the increased from the Ashford development and he pointed out that a dip in the road has made it difficult to see vehicles. He further noted that redistricting has reshuffled many students in the overcrowded school system. He noted that he is not bothered by what the existing site looks like. He would like to see an office building maintained at the site and not have the proposed apartments. Mr. Castan spoke regarding the density of the site becoming over congested with 140-people on a 4-acre site. He asks that the Board members consider how the people that presently live here feel.
Mr. John Wittmann
5363 Chestnut Ridge Road
Orchard Park, New York 14127
Mr. Wittmann does not support the variance requests. He suggests that the applicant tear down the building if it is in disrepair. He feels the zoning law preserves the integrity of the neighborhood and he wants the law followed. He, also, feels that a burden will be placed on the services of the fire and police services of the community.
Ms. Jo Ann Covell
5319 Chestnut Ridge Road
Orchard Park, New York 14127
Ms. Covell does not support the variance requests. She does not want 36-additional units added to an area, which in her opinion is too small. There is no guarantee that empty nesters will be renting these units with rent set at $700 to $1,000 per month. In addition, this figure does not eliminate the possibility of HUD or the Belmont Corporation. She sees no reason to bring this project to this location; it is less than half the size that is required.
Mr. Paul Pasucci
6307 Chestnut Ridge Road
Orchard Park, New York 14127
Mr. Pasucci does not support the variance requests. He discussed his concerns involving traffic and property values being diminished by this project. He questions if Mr. Sahlem, who spoke earlier supporting the request, would be selling his property to Mr. Boyle at some point in time. He noted that he is scared at what could happen with the property in the future if the project is granted the variances and is allowed to be built.
Mr. John Murray
5304 Chestnut Ridge Road
Orchard Park, New York 14127
Mr. Murray stated that he does not support the variance requests. He discussed noise and traffic issues. He feels the applicant should downsize the project and take an 8% profit.
Mr. Chris Covell
5319 Chestnut Ridge Road
Orchard Park, New York 14127
Mr. Covell does not support the variance requests. He stated that he does not want to have “junk buildings put up”. He further noted that he is a fire fighter.
Mr. Martin Dolan, President
Orchard Commons
P.O. 448
Getzville, New York 14068
Mr. Dolan stated that he does not support the variance requests. He objects to the density of the project; he agrees with the comments made by other speakers and he submitted a petition signed by 77-homeowners of the Orchard Commons stating that they do not support the variance requests.
Mr. John Shanahan
5293 Chestnut Ridge Road
Orchard Park, New York 14127
Mr. Shanahan stated that he does not support the variance requests; he would like to see a beauty salon or professional offices proposed for the site.
Mr. Richard Cohen
5293 Chestnut Ridge Road
Orchard Park, New York 14127
Mr. Cohen stated that he does not support the variance requests. He questions the applicant’s proposal of increasing the percentage of green space at the site when they are proposing additional parking spaces and the construction of two additional buildings. He wonders how this is possible.
Ms. Anne Lopus
5291 Chestnut Ridge Road
Orchard Park, New York 14127
Ms. Lopus does not support the variance requests. She described herself as an “empty nester” and she values her home. She feels this project will de-value her home.
Mr. Mike Shanahan
5293 Chestnut Ridge Road
Orchard Park, New York 14127
Mr. Shanahan does not support the variance requests; he questions what will happen to the wild life in the area; he also questions what impact the SEQR document indicates the proposed project will have on the area.
Ms. Barbara Ehmke
5289 Chestnut Ridge Road
Orchard Park, New York 14127
Ms. Ehmke does not support the variance requests. She discussed her concerns regarding construction, noise, dirt, strange children, traffic and the fact that there is not having enough land for the proposed project.
Ms. Marsha Van Dewark
5303 Chestnut Ridge Road
Orchard Park, New York 14127
Ms. Van Dewark does not support the variance requests. Based on her research and consulting with a Planning Board member, she feels the proposal is unacceptable.
Mr. Henry Cappola
5293 Chestnut Ridge Road
Orchard Park, New York 14127
Mr. Cappola stated that he does not support the variance requests. He noted that the realtor for the property that spoke failed to mention that the property was previously on the market at a high price and now the owner wants to “dump” it. The Orchard Commons property is held by individuals that own their property; the proposal by the applicant will have apartments with transient individuals. He wants the property marketed for professional offices and not apartments.
Nat Gachich
5253 Chestnut Ridge Road
Orchard Park, New York 14127
Mr. Gachich stated that he does not support the variance requests. He noted that he feels the proposed green space does not seem realistic to him and that the residents of the Orchard Commons’ view of the proposed buildings will not be buffered from the site. He further discussed concerns he has with the increase in the volume of traffic that will occur from this project.
Mr. Raymond Castan
5296 Chestnut Ridge Road
Orchard Park, New York 14127
Mr. Castan stated that he does not support the variance requests. He questions what the sewer system will be for the proposed project.
Mr. Bill Bell
921 Chestnut Ridge Road
Orchard Park, New York 14127
Mr. Bell stated that he does not support the variance requests. He noted that the requests are not minor; they are major. He feels that if the property is not suitable, then it should not happen. He asks that the Board members take notice of all that have spoken against the project.
Ms. Susan Marriott, Attorney
Phillips Lytle LLP
3400 HSBC Center
Buffalo, New York 14203
Ms. Marriott was hired to speak on behalf of the residents of the Orchard Commons. She noted that they are against the variance requests. Ms. Marriott cited issues of density and community character as factors for not granting the request. She told the Board that the applicant does not own the property; therefore, she feels there is no economic hardship. She also feels the short EAF is not sufficient for a project of this magnitude. Due to these inadequacies and the fact that there is not an original document from Erie County Planning, she asks that the Board deny the variances requested.
Dr. Scott Westmeyer stated that he would like to withdraw his petition for the variances being requested.
Chairman Litwin noted that Dr. Westmeyer has withdrawn his petition for the variances and the Board accepts this request.
Ms. Litwin said the petitioner’s request is off the table for this evening and that the petitioner will have to return before the Board with a substantially new plan for this site.
Attorney Michael Wolf, also, noted that the Board can not act on this case without a signed recommendation from the Erie County Planning Department.
There being no further business to be presented to the Board at this time Chairwoman Litwin adjourned the meeting at 10:23 P.M.
DATED: September 8, 2008 Respectfully submitted,
REVIEWED: October 14, 2008 Rosemary Seivert, Secretary
Zoning Board of Appeals
Jo Ann Litwin, Chairwoman