ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the October 21, 2008 meeting held in the Basement Public Meeting Room, S4295 South Buffalo Street.
MEMBERS PRESENT: Jo Ann Litwin, Chairwoman
Joseph Liberti
Richard Zajac
Dwight Mateer, Alternate
EXCUSED: Robert Metz
Donald Holmwood
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 JULY, AUGUST, AND SEPTEMBER 2008 REGULAR MEETINGS:
Upon a motion duly made and seconded, the reading of the minutes of the July 15, 2008, August 19, 2008, September 16, 2008 Zoning Board of Appeals meetings were unanimously waived as each Board Member had previously received copies.
The Mr. Liberti made a MOTION, seconded by Mr. Zajac to ACCEPT the minutes of the July 15, 2008, August 19, 2008, September 16, 2008 Zoning Board of Appeals meetings as presented.
THE VOTE ON THE MOTION BEING:
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
MATEER AYE
THE MOTION IS UNANIMOUSLY PASSED
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:
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
MATEER AYE
THE VOTE ON THE RESOLUTION BEING UNANIMOUS, THE RESOLUTION WAS DULY ADOPTED.
The Chairwoman explained to the petitioners that there will only be four (4) voting Board Members. Three votes are needed for an approval. In the event of a decision that results in a tie, the motion is defeated. The petitioner has the choice (after presenting his case) of allowing the Board to vote or postpone the decision until the next meeting, where the absent member will have had a chance to review the case, and five members will then be able to vote.
NEW BUSINESS
1. ZBA File #31-08, David Bertola,
28 Breezewood Drive, Zoned R-2 (Sub Lot 8, Map Cover 2737; SBL#172.20-2-6).
Requests an Area Variance to construct a shed with a 6-ft. side and rear
setback. Minimum side setback is 15-ft., minimum rear setback is 10-ft.,
Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.
APPEARANCE: Mr. David Bertola, Applicant/Property Owner
Mr. Bertola told the Board that there is a significant slope at the rear of his back yard that makes it difficult to locate the proposed shed. He would like to locate the shed as far back as possible and maximize the usage of the flatter portion of his property. He further stated that the proposed shed will be positioned amidst trees and brush and it will not be visible from the roadway. The proposed shed will be designed to look like the existing home and have similar siding and shingles. Mr. Bertola submitted a letter to the Board from his neighbor, Mr. Lawrence Raub, 24 Breezewood Dr., Orchard Park, NY 14127, supporting the variance request and photos of the site.
Mr. Mateer established that the proposed shed will be 12-feet by 10-feet in size and 9-feet high.
Mr. Liberti verified that Mr. Bertola had spoken to his neighbors.
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. Mateer made a MOTION, seconded by Liberti, 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.
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 or district.
5. The difficulty is some what self-created; but that does not preclude the granting of the variance.
THE VOTE ON THE MOTION BEING:
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
MATEER AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED.
2. ZBA File #32-08, Peter Krog, 6325 Cole Road, Zoned A-1 (Part of Farm Lot 58, Township 9, Range 7; SBL#198.00-2-21.2). Requests an Area Variance to establish a property line 50-ft. from a horse barn. No building shall be used to house horses within 100-ft. of any property line, Section 144-32A(1).
APPEARANCE: Mr. & Mrs. Peter Krog, Applicants/Property Owners
Mr. Krog explained that he plans to retain ownership of the property for which he is asking the variance for and keep the barn that exists on the property to house horses; however, he would like to sell the existing residence. He is requesting a variance to reduce the requirement of locating the barn 100-feet from the residence, to 50-feet. he also explained to the Board that the variance will eliminate the need to provide a R.O.W. for the septic system to the purchasers of the residence. He told the Board that there is a fence that screens the view of the barn from the existing house.
Mr. Zajac established that the house and the barn were not built at the same time.
The Chairwoman established that there are 12-stables and that Mr. Krog anticipates using 10 of the stables.
Mr. Liberti established that Mr. Krog had spoken with his neighbors.
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.
Ms. Teagarden
6274 Cole Road
Orchard Park, New York 14127
Ms. Teagarden stated that she was not against the request; however she would like to ask Mr. Krog a few questions. Mr. Krog answered her questions and explained the variance request to Ms. Teagarden. It was established that Ms. Teagarden lived across the roadway from Mr. Krog’s property and she stated that she had no objection the variance request.
Mr. Mateer noted that Mr. Krog could divide the property and then he would not need a variance. Mr. Krog stated that he is trying to have the property be more desirable for someone buying the property.
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. Mateer 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 nearby properties; the buildings have been here for quite some time.
2. The benefit cannot be sought or achieved in another way; you could divide the leech field in half, apply for a use variance or have the property line closer.
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 building was pre-existing.
5. The difficulty was not self-created.
THE VOTE ON THE MOTION BEING:
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
MATEER AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED.
3. ZBA File# 33-08, Richard Eliah, 3261 Orchard Park Road, Zoned B-2 (Part of Farm Lot 17, Township 10, Range 7; SBL#152.16-4-7). Request an Area Variance to construct a 288-sq.ft. storage building. Accessory structures in this B-2 Zone shall be no larger than 120-sq.ft., Section 144-24B.
APPEARANCE: Mr. Richard Eliah, Applicant/Property Owner
Mr. Eliah told the Board that he would like to have a storage shed conveniently located on site for his business for the storage of dry goods such as paper cups. The proposed shed will be 12-feet by 24-feet. The shed will match the color scheme of the existing building and have one garage door on the side; there will be no windows. Mr. Eliah stated that he will place a cupola on the top of the garage for ascetic purposes.
Mr. Zajac established that the proposed storage shed location was chosen because it is a “dead zone area” that is out of the way, where not much customer vehicle parking occurs.
Mr. Liberti established that the proposed shed is strictly for storage and that a vehicle will not be stored in the shed.
Mr. Mateer discussed locating the shed closer to the building; however, it was established that it would be difficult to do so and Mr. Eliah noted that he had concerns regarding customers backing out and hitting the shed with their vehicles.
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. Mateer, 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:
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
MATEER AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, A NEGATIVE DECLARATION IS MADE UNDER SEQR.
Mr. Liberti made a MOTION, seconded by Mateer, to GRANT the Area Variance request for the following reasons:
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 or the district.
4. The difficulty is some what self-created; but that does not preclude the granting of the variance.
THE VOTE ON THE MOTION BEING:
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
MATEER AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED.
4. ZBA File# 34-08, Superior Heat Company, 3461 N. Benzing Road, Zoned I-1 (Part of Farm Lot 27, Township 10, Range 7; SBL#152.18-1-7). Requests 2-Area Variances for the conversion and expansion of a former collision shop. The first request is for increased front yard parking. Vehicle parking is prohibited in the front yard in this I-1 Zone, Section 144-29A(4). The second request is to allow paving up to the lot line. Pavement shall be allowed no closer than 5-ft. to the lot line, Section 144-22G.
APPEARANCE: Mr. John Lydon, Architect
Mr. William Klink, Applicant/Property Owner
Mr. Lydon explained that Mr. Klink recently purchased this property and that he had not realized that the front yard parking that existed with the property would not be allowed to continue due to a “change of occupancy”. He told the Board that this is an irregular shaped lot that necessitates that parking be allowed in the front yard, therefore, he is requesting an Area Variance for front yard parking. Mr. Lydon stated that the second variance request is to allow the parking layout to be adequate for the necessary turning radius. Mr. Klink anticipates the need for approximately 26-parking spaces. He will need to fully utilize the front yard and therefore is requesting to allow paving up to the lot line. Mr. Lydon presented a site plan to the Board and explained the proposal to the members.
Mr. Liberti established that 10-parking spaces are required at the site, plus an additional space will be required for each employee.
Mr. Mateer inquired if any of the trees may be removed at the site. Mr. Lydon told the members that several will need to be removed, including two located on the property line.
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. 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:
LIBERTI AYE
LITWIN 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 Mateer, to GRANT the two Area Variances for the following reasons:
1. There will be no undesirable change to the character of the neighborhood or detriment to nearby properties; the property is bordered by Route 219 and the neighborhood is mostly a business district.
2. The benefit cannot be achieved in any 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 the district.
5. The difficulty is not self-created.
THE VOTE ON THE MOTION BEING:
LIBERTI AYE
LITWIN AYE
ZAJAC AYE
MATEER AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE MOTION IS HEREBY PASSED.
5. ZBA File #35-08, Anne Pohlman, 3402 Orchard Park Road, Zoned B-4 (Sub Lot 9, Map Cover 1432; SBL#152.20-2-20.1). Requests a Use Variance to allow a retail jewelry store within a B-4 Zone. This mercantile type use is not permitted in a B-4 Zone, Section 144-9A, Schedule of Use Controls.
APPEARANCE: Mr. Ralph Lorigo, Attorney
Ms. Anne Pohlman, Applicant
Chairwoman Litwin recused herself from this case due to a business relationship. Mr. Liberti will be the Acting Chairman in this case review.
Mr. Lorigo stated that Ms. Pohlman is under contract to purchase this property. He told the Board that Ms. Pohlman currently operates a retail jewelry store in West Seneca, New York. She proposes to operate a retail jewelry store in essential the same fashion at this location. The customer count at the West Seneca location is approximately 12-15 individuals per day; the hours of operation at this location will be the same; Tuesday, Wednesday, Friday – 10 a.m. thru 6 p.m.; Thursday 12 p.m. thru 8 p.m. and Saturday’s 10 a.m. thru 4 p.m. Mr. Lorigo told the members that there will be two-(2) part-time employees and that Ms. Pohlman will be present on a daily basis. There are ample parking spaces at this site; at the West Seneca location Ms. Pohlman has 4-parking spaces and at this location there will be 20-parking spaces. There will be no alterations to the exterior of the building. Mr. Lorigo submitted a petition for the Board members’ review signed by area eight (8) neighbors supporting the variance request. The secretary will enter this document into the permanent file.
Mr. Lorigo also explained to the members that a tenant (beauty salon) is currently at this location. The tenant has a lease agreement that ends in 2009. However, Ms. Pohlman has offered to release the tenant from their lease agreement immediately. If the tenant does not leave prior to the end of their lease agreement Ms. Pohlman has agreed not to extend the lease agreement or lease to another tenant. He assured the Board that Ms. Pohlman would be the only occupant at the site. Mr. Lorigo stated that he feels that Ms. Pohlman’s business will be less intrusive than the former bead business that occupied the site. Mr. Lorigo acknowledged that there are residences in the area; however, he also noted that there are other similar types of uses in the area, such as the day-spa across the street.
Mr. Mateer discussed Ms. Pohlman’s business with her and asked her to describe the type of retail jewelry business she operates.
Acting Chairman Liberti confirmed with Mr. Lorigo that Ms. Pohlman has a contract to purchase this property if the variance is granted by the Board.
The Acting 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 Acting Chairman then asked if there was anyone in the audience who would wish to speak against the granting of the variance.
OPPONENT
Ms. Christine Roskow, adjacent neighbor
3414 Orchard Park Road
Orchard Park, New York 14127
Ms. Roskow noted she is the adjacent neighbor and she discussed with the members her concerns regarding the property and the business.
The Acting Chairman 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. Mateer, 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:
LIBERTI AYE
LITWIN ABSTAINED
ZAJAC AYE
MATEER AYE
THE VOTE ON THE MOTION BEING THREE IN FAVOR AND ONE (1) ABSTENTION, A NEGATIVE DECLARATION IS MADE UNDER SEQR.
Mr. Mateer made a MOTION, seconded by Mr. Zajac, 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, provided that lack of return is substantial as demonstrated by competent financial evidence.
2. The hardship is not 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. If the owner terminates the business or sells the property the variance will cease to exist.
THE VOTE ON THE MOTION BEING:
LIBERTI AYE
LITWIN ABSTAINED
ZAJAC AYE
MATEER AYE
THE VOTE ON THE MOTION BEING THREE (3) IN FAVOR AND ONE (1) ABSTENTION, THE MOTION IS HEREBY PASSED WITH A STIPULATION.
There being no further business to be presented to the Board at this time Chairwoman Litwin adjourned the meeting at 8:23 P.M.
DATED: November 12, 2008 Respectfully submitted,
REVIEWED: November 12, 2008 Rosemary Seivert, Secretary
Zoning Board of Appeals
Jo Ann Litwin, Chairwoman