ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the August 18, 2009 meeting held in the Basement Public Meeting Room, S4295 South Buffalo Street.
MEMBERS PRESENT: Jo Ann Litwin, Chairwoman
Donald Holmwood
Robert Metz
Richard Zajac
Dwight Mateer, Alternate
EXCUSED: Joseph Liberti
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 7:00 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, 2009 REGULAR MEETING:
The Chairwoman stated that the meeting minutes from the last meeting will be voted on at the next 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
HOLMWOOD AYE
MATEER AYE
METZ AYE
ZAJAC AYE
NEW BUSINESS
1. ZBA File #24-09, Jeffrey & Laura Reed, 86 Breezewood Drive, Zoned R-2. (Sub Lot 191, Map Cover 3248; SBL#172.20-4-1). Requests an Area Variance to allow a shed with a 4-ft. side setback and 2-ft. rear setback. Minimum side & rear setback for an accessory structure on this R-2 Lot is 10-ft., Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.
APPEARANCE: Mr. Jeff Reed, Applicant and Property Owner
Mr. Reed told the Board that his rear property line is bordered by a parcel owned by the NYS DOT and that the adjacent building lot is an irregular shaped lot that will not allow the construction of a home at the rear portion of the lot. Mr. Reed distributed a sketch of the property for the members to review, noting that he does not feel a negative impact will be created by placing the proposed shed in the corner of his lot.
Mr. Mateer established that the proposed shed will have a steel base and be placed on stone. Mr. Reed told the Board that he installed the shed without knowing he needed a permit.
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 no other communications have been received.
Mr. Zajac made a MOTION, seconded by Mr. Metz, 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 the nearby properties.
2. The benefit sought 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.
5. The difficulty is self-created; however, this does not preclude the granting of the variance.
THE VOTE ON THE MOTION BEING:
LITWIN AYE
HOLMWOOD AYE
MATEER AYE
METZ AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE VARIANCE IS HEREBY GRANTED.
2. ZBA File 25-09, Kenneth Ziarkowski, 7765 Jewett-Holmwood Road, Zoned R-1 (Sub Lot 6, Map Cover 1895; SBL#174.13-1-1). Request an Area Variance to construct a 24-ft. x 32-ft. detached 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. Kenneth Ziarkowski, Applicants & Property Owners
Mrs. Ziarkowski told the Board that they would like to construct a garage to provide storage for vehicles and lawn equipment. She explained that there is only one location available to place the garage and that the proposed structure will match the existing residence. Mrs. Ziarkowski distributed photos of the area and a photo of what the proposed garage will look like, noting that the loft pictured in the photo will not be included. Mrs. Ziarkowski noted that the structure will match the existing home.
Mr. Metz established that the proposed garage will match the exterior of the existing home.
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:
Kenneth Gossel
7792 Jewett Holmwood Road
Orchard Park, New York 14127
Mr. Gossel reviewed the photos Mrs. Ziarkowski had presented to the Board. He expressed his concerns regarding the proposed garage and explored other alternatives in locating the proposed shed upon the property. Mr. Gossel’s discussion of these suggested alternatives led the Board to the conclusion that they were not feasible.
Building Inspector David Holland told the Board that if the proposed garage was connected with a breezeway to the existing home that the Ziarkowski’s would not need a variance.
Mrs. Ziarkowski noted that she planned on providing landscaping to screen the garage area.
The Chairwoman then asked if the Secretary had received any additional communications either for, or against, granting the variance.
The Secretary stated no other communications have been received.
Mr. Mateer noted that the property is screened with trees and that he had difficulty locating it to perform his site inspection.
The Board members discussed the request and agreed that the proposed garage was pleasing and that it will match the existing residence.
Mr. Mateer made a MOTION, seconded by Mr. Holmwood, to GRANT the variance request based on the following:
1. There will be no undesirable change in the character of the neighborhood or a detriment to the nearby properties.
2. The benefit sought cannot be achieved in any other way than through the granting of the variance.
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. Although difficulty is self-created; this does not preclude the granting of the variance.
THE VOTE ON THE MOTION BEING:
LITWIN AYE
HOLMWOOD AYE
MATEER AYE
METZ AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE VARIANCE IS HEREBY GRANTED.
3. ZBA File #26-09, John & Carolyn Wellington, 6254 S. Abbott Road, Zoned A-1 (Part of Farm Lot 34, Township 9, Range 7; SBL#196.02-3-12). Requesting two (2) variances to have a private stable on this property. First, to allow a private stable on a 3.43 acre parcel. Minimum size in area shall be 5-acres, Section 144-32A(2)(b). Second, to locate a run-in barn 50-ft. from a side lot line. No building shall be used to house or contain horses within 100-ft. of any property line, Section 144-32A(1).
APPEARANCE: Mr. & Mrs. John Wellington, Applicant & Property Owner
Mr. Wellington distributed photos for the members to review and he explained to the Board that he would like to locate his barn for his proposed private stable at the side of his property so he will be able to easily observe the horses. He told the Board that he spoke to the adjacent neighbors and they did not object to the variance requests.
Mr. Zajac established that in order to construct and place the barn in the location that has been proposed, several trees may need to be removed. In addition, split rail fencing will be used at the site to contain the horses.
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:
LITWIN AYE
HOLMWOOD AYE
MATEER AYE
METZ AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, A NEGATIVE DECLARATION IS MADE UNDER SEQR.
Mr. Metz made a MOTION, seconded by Mr. Holmwood, to GRANT the two (2) variance requests for the following reasons:
1. There will be no undesirable change in the character of the neighborhood or a detriment to the nearby properties created.
2. The benefit sought cannot be achieved in any other way than through the granting of the variance.
3. The request is not substantial.
4. There will not be an adverse effect or impact on the physical or environmental conditions of the neighborhood or district.
5. The difficulty may be self-created; however, this does not preclude the granting of the variance.
THE VOTE ON THE MOTION BEING:
LITWIN AYE
HOLMWOOD AYE
MATEER AYE
METZ AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE TWO (2) VARIANCES ARE HEREBY GRANTED.
4. ZBA File #27-09, Juliet Marczak, 6744 E. Webster Road, Zoned R-2 (Part of Farm Lot 15, Township 10, Range 7; SBL#162.05-3-7). Requests an Area Variance to install a 4-ft. high chain link fence within a side street yard. Maximum height of a fence in a side street yard is 3-ft., Section 144-22A(1).
APPEARANCE: Ms. Juliet Marczak, Applicant/Property Owner
Ms. Marczak presented photos for the Board members to review of her property and she explained that she would like to erect the proposed fence to keep her dogs contained on her property. She noted that the topography of her property is uneven and
that a 3-ft. code compliant fence would be lower in some areas, enabling her dogs to escape, therefore she is requesting a variance to have the fence 12” higher than what is allowed. She told the Board that she would like the fence to start at the garage just past the tree line. Ms. Marczak stated that she feels the fence will not impair motorists’ site vision. However, if the fence were to be installed directly at the home there would be less back yard area for her to enjoy. Ms. Marczak told the Board that a fence will provide safety to the public and her dogs. She told the Board about an incident with an unleashed dog in the neighborhood and Chairwoman Litwin told Ms. Marczak to contact the Town of Orchard Park Dog Warden to remedy situations of this nature.
Chairwoman Litwin told Ms. Marczak that she feels an option to consider would be to install an electric fence; it is 1/3 the cost of the proposed fence. Ms. Marczak discussed this option with Ms. Litwin, but she told the Board that she did not feel an electric fence, or a combination of a fence and the electric fence would provide the security she is seeking for her dogs. She, also, told the Board that she planned on planting landscaping to buffer the fencing.
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:
Mrs. Nancy Conley
25 Hodson Road
Orchard Park, New York 14127
Ms. Conley explained to the Board that her property will be impacted the most by the variance request and she asks that the Board deny the variance. She told the Board that she realizes Ms. Marczak has the right to install a three-foot fence; however, she does not support the request to have a variance to allow a higher fence. Ms. Conley proposed that Ms. Marczak align the fence on the east side of the garage where a row of mature trees would partially shield its view. She presented a sketch plan to the Board and Building Inspector David Holland for their review.
The Board discussed proposed sketch plan with Ms. Marczak and she told the Board that she would loose the enjoyment of her backyard and she discussed the placement of her fence with the Board at length.
Mr. Zajac established that Mr. Marczak feels the dogs will escape if the topography slopes and the fence is limited to three-feet in height.
Chairwoman Litwin stated that she feels that the Board has to consider if there is another way to solve this problem, noting that she uses an electric fence to contain her 140-lb. dog.
Chairwoman Litwin questioned if there were other chain link fences in the neighborhood. It was established that there was one, but it was located quite a distance away. Ms. Litwin feels a four-foot fence will create a negative impact on the neighborhood.
The Chairwoman noted that a letter supporting the variance request was received from Mr. & Mrs. Dennis Buczkowski, 6727 E. Webster Road, Orchard Park, New York. This is part of the permanent file.
Mr. & Mrs. Conley stated that the Buczkowski’s are not affected by the variance request as they live on the opposite side of the Ms. Marczak’s house.
Mr. Zajac stated that the applicant is allowed to install a three-foot fence without a variance. He discussed his feelings regarding the request and noted that the fence will need to be higher along the slope area to prevent the dogs from jumping over it and escaping.
Mr. Mateer stated that the applicant can place the fence right to the road without a variance.
Mr. Conley stated that he would prefer that, as it would look more appealing.
Chairwoman Litwin feels a four-foot fence will create a negative impact on the neighborhood. She also noted that she is a “dog lover” and that she feels the benefit sought by the applicant can be achieved in another way by using an electric fence.
Mr. Zajac stated that he feels the Board cannot force the applicant to use an electric fence. He also noted that other dogs can enter the property. Chairwoman Litwin stated a combination could be used of fencing and the electric fence. Mr. Zajac noted that he feels a fence higher than four-feet probably will be needed in some areas because of the topography of the property.
Mrs. Conley noted that the Buczkowski’s have an electric fence for their dogs; if there was an issue with the electric fence they would not have one. She further noted that Mr. Buczkowski is the Dog Warden for the Town of Orchard Park.
Chairwoman Litwin, again, noted that if the applicant is having a problem with unleashed dogs on her property that she contact the Town Dog Warden regarding the matter immediately.
Mr. Zajac made a MOTION, seconded by Mr. Mateer, to GRANT the Area Variance for the following reasons with a STIPULATION:
1. There will be no undesirable change in the character of the neighborhood by adding one additional foot to the chain link fence.
2. The benefit sought 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 by adding one-foot onto a three-foot fence that is allowed.
5. The difficulty is partially self-created; although it is also created due to the topography of the property (trees and slope of the yard); this does not preclude the granting of the variance.
The variance is granted with the following stipulation:
1. Appropriate landscaping (bushes/hedges) will be used to buffer/conceal the chain-link fencing.
THE VOTE ON THE MOTION BEING:
LITWIN NAY
HOLMWOOD NAY
MATEER AYE
METZ NAY
ZAJAC AYE
THE VOTE ON THE MOTION BEING THREE (3) AGAINST AND TWO (2) IN FAVOR THE MOTION FAILS.
The Chairwoman noted that the variance is not granted.
There being no further business to be presented to the Board at this time Chairwoman Litwin adjourned the meeting at 7:50 P.M.
DATED: September 11, 2009 Respectfully submitted,
REVIEWED: September 11, 2009 Rosemary Seivert, Secretary
Zoning Board of Appeals
Jo Ann Litwin, Chairwoman