ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the July 21, 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 7:03 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:
A motion was made by Mr. Holmwood, seconded by Mr. Zajac, to accept the minutes of the June 16, 2009, Zoning Board meeting and the reading of these minutes is hereby dispensed with as each member of the Board has previously received copies thereof.
THE VOTE ON THE RESOLUTION BEING:
LITWIN AYE
HOLMWOOD AYE
MATEER AYE
METZ AYE
ZAJAC AYE
THE VOTE ON THE RESOLUTION WAS DULY ADOPTED.
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
The Chairwoman stated that at tonight’s meeting we have two (2) cases where Board members must recuse themselves because of relationship with the petitioner; we do not have full Board representation this evening. In these circumstances it will require (3) votes to approve any motion that is presented. If a vote results in a two/two tie, the motion will be defeated. As a result, we offer petitioners the following three options; 1) we can vote on the petition and the petitioner must accept the Board’s decision. 2) We can hear the case and postpone the vote until the next meeting of the Board when a full Board is present. (The absent member of the Board will review the testimony and all appropriate documents prior to the meeting.) 3) The petitioner can postpone making his presentation until the next meeting of this body.
NEW BUSINESS
1. ZBA File #18-09, Tim & Ann Fischer, 8 Acorn Circle, Zoned R-2 (Sub Lot #102, Map Cover 2984; SBL#184.08-2-38.1). Requests an Area Variance to construct a covered porch with a 36-ft. front setback. Minimum front setback for this R-2 Lot is 40-ft., Section 144-9B, Schedule of Lot, Height, Yard & Bulk Regulations.
APPEARANCE: Mr. Tim Fisher, Applicant and Property Owner
Mr. Fischer told the Board that he would like to construct a covered porch for his family; however, the lot has an odd shape and one corner of the proposed porch (stairway area) protrudes slightly into the setback area. He presented photos of the existing home and a porch similar to what he is proposing to construct for the Board’s review.
Mr. Mateer discussed the proposed porch with Mr. Fisher. Mr. Fischer stated that the porch will be completely open; there will be no walls or screens. Mr. Mateer concluded that the porch will not create an obstruction to someone’s view as the porch will not be enclosed; therefore, you will be able to see through it.
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 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 other than the correspondence received prior to the hearing.
Chairwoman Litwin stated that a correspondence had been received from Mr. Maggioli of 10 Acorn Circle stating that he did not support the variance request as he felt the proposed porch would obstruct his view of the existing pond area.
Mr. Mateer made a MOTION, seconded by Mr. Metz, to GRANT the Area 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 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. The difficulty is not 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.
2. ZBA File 19-09, Robert C. Van Pelt, 194 Velore Avenue, Zoned R-3 (Sub Lot#’s 735 & 736, Map Cover 956; SBL#151.16-2-55). Requests an Area Variance to allow construction of a covered porch with a 7.78-ft. front setback to continue. Existing front setback for this R-3 lot is 10.48-ft. per Section 144-14. NOTE: Construction commenced prior to permit.
APPEARANCE: Mr. Robert C. Van Pelt, Applicant/Property Owner
Mr. Van Pelt told the members that he had not known that he needed a permit to replace the deteriorating covered porch existing at the front of his home. He would like the variance granted so he may finish the construction of the replacement porch, which now extends across the front by one-foot.
Mr. Metz established that a patio area will exist on the porch’s roof top and that there will be a door and a window located here; however, there will be no roof on the second floor area.
Mr. Mateer reviewed a photo of the porch that had previously existed. Mr. Van Pelt noted that the original porch had aluminum awnings with wood posts that were assembled incorrectly. He further noted that the new porch is longer and that it will have decking on the first floor area.
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 no communications have been received.
Mr. Zajac made a MOTION, seconded by Mr. Holmwood, to GRANT the Area 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 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.
5. The difficulty is self-created; but that does not preclude the granting of the variance.
THE VOTE ON THE MOTION BEING:
LITWIN AYE
HOLMWOOD AYE
MATEER NAY
METZ AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING FOUR (4) IN FAVOR AND ONE (1) AGAINST, THE VARIANCE IS HEREBY GRANTED.
3. ZBA File #20-09, Carlos Santos, 3030 Orchard Park Road, Zoned B-2 (Part of Farm Lot 456, Township 10, Range 7; SBL#152.12-1-10.1). Requests a variance to replace a monument sign with a pedestal sign, resulting in (2) pedestal signs on this parcel. One (1) such pedestal sign is permitted per Section 144-38C. NOTE: On 6/17/08 a variance was granted allowing a monument sign & pedestal sign on this parcel, ZBA File #17-08.
Chairwoman Litwin stated that she must recuse herself in this matter due to a business relationship with the applicant. Mr. Zajac will be the Acting Chairman in this case.
APPEARANCE: Dr. Carlos Santos, Applicant, Property Owner
Dr. Santos explained to the Board that the existing small monument sign is not easily seen from the roadway and that individuals are having difficulty finding the businesses located within the site.
Mr. Holmwood discussed several trees that may block the signage at some point in the future. Dr. Santos told the Board that if the trees become a problem he will have them trimmed.
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 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 no communications have been received.
Mr. Metz 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:
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 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 or district.
5. The difficulty is self-created; but that does not preclude the granting of the variance.
THE VOTE ON THE MOTION BEING:
HOLMWOOD AYE
MATEER AYE
METZ AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE VARIANCE IS HEREBY GRANTED.
4. ZBA File #21-09, Lowell Dewey for Taco Bell, Vacant Land Orchard Park Road. Zoned B-2 (Part of Farm Lot 459, Township 10, Range 7; SBL#’s 152.16-4-1 & 152.16-4-15). Requests an Area Variance to allow vehicle parking in the front yard of a proposed restaurant building. Vehicle parking is prohibited in the font yard in this B-2 Zone, Section 144-29A(4).
Mr. Mateer stated that he must recuse himself from voting in this case.
APPEARANCE: Mr. Lowell Dewey, C & S Engineers
Mr. Dewey stated that the project has received contingent approval from the Conservation Board for the submitted Landscape Plan and that it was presented as a “Concept Review” before the Planning Board.
Mr. Dewey explained to the Board that the parking requirement for the site is 31-spaces. The applicant would like to provide a second access behind the building to allow for movement onto adjacent streets; but, in doing so they will need to locate two- parking spaces at the front of the building as the parking lot must be slightly shifted toward the front of the restaurant and past the building line. He further explained that discussions are taking place with the Full Gospel Tabernacle Church to allow an easement through the church parking lot that is adjacent to this site. Mr. Dewey noted that the project would be safer with two ingresses and egresses. He further noted that the building was located further back to allow the construction of a storm water detention pond.
Mr. Holmwood discussed the entranceway into the site with Mr. Dewey, who noted that 80% of the customers would use the Orchard Park Road entranceway to enter and exit the site.
Mr. Zajac noted that this project received approval several years ago. Mr. Dewey acknowledged this fact, stating that at that time, the applicant chose not to pursue the project. However, Mr. Dewey is 100% sure this project will be built and he told the Board that the applicant in this instance is “Taco Bell”.
Mr. Metz verified the drive-through information provided on the Site Plan with Mr. Dewey.
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 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:
LITWIN AYE
HOLMWOOD AYE
METZ AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, A NEGATIVE DECLARATION IS MADE UNDER SEQR.
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; there are multiple commercial properties in the area that have front yard parking.
2. The benefit sought cannot be achieved in any other way; considering the additional entrance and exit that the applicant would like to have.
3. The request is not substantial; it is only two-parking spots.
4. There will be no adverse effect or impact on the physical or environmental conditions of the neighborhood or district.
5. The difficulty is self-created by adding the extra entrance and exit; but the benefit out weighs the two-parking spaces to be located in the front yard.
THE VOTE ON THE MOTION BEING:
LITWIN AYE
HOLMWOOD AYE
METZ AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE VARIANCE IS HEREBY GRANTED
5. ZBA File #22-09, Value Centric, 23 Cobham Dr. Zoned I-1 (Part of Farm Lot 31, Township 9, Range 7; SBL#161.18-2-4.13). Requests a variance to permit a 58.6-sq.ft. monument sign with 29.8-sq. ft. of text area. A monument sign shall not exceed 30-sq. ft. in area, text area shall not exceed 20-sq. ft., Section 144-5B-Defintions.
APPEARANCE: Mr. David Janca, Applicant, Property Owner
Mr. Janca explained to the Board that because of the lack of signage on Route 20A (Big Tree Road), customers are having difficulty in locating his business. He would like to construct a monument sign that will compliment his existing building. He told the Board that since his initial variance request and application, a decision was made not to lease space to tenants; therefore, the proposed signage request was reduced to 41.6-sq.ft., with a text area of 20.67-sq.ft.
Mr. Zajac noted that the text area of the proposed signage is close to being compliant.
Mr. Holmwood verified that the tenant portion will be eliminated in the proposed signage. He cautioned the applicant to plant vegetation that will not grow and obscure the signage.
Mr. Metz asked why the proposed signage is not being located on Cobham Drive. Mr. Janca explained to the Board that the location chosen will allow individuals traveling to see the signage before they need to make the turn into Cobham Drive.
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 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:
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. Zajac made a MOTION, seconded by Mr. Holmwood, to GRANT the Area Variance request for the reduced/revised size of the proposed signage (41.6-sq.ft. with a text area of 20.67-sq.ft.) for the following reasons:
1. There will be no undesirable change in the character of the neighborhood or a detriment to 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 not self-created, as there is no identification signage at the front of the site.
THE VOTE ON THE MOTION BEING:
LITWIN AYE
HOLMWOOD AYE
MATEER AYE
METZ AYE
ZAJAC AYE
6. ZBA File #23-09, Sean Hopkins 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, Sections 144-46C(4)(a). NOTE: On 10/16/07 this project was granted Area Variances with a two (2) year expiration, ZBA File #40-07.
APPEARANCE: Mr. Sean Hopkins, Attorney
Mr. Michael Metzger, Metzger Engineering
Mr. Phil Silvestri, Silvestri Architects
Mr. Weldman, Project Sponsor
Mr. Sorgi distributed a sheet to the members that contained information regarding the differences that exist in the project presented today and the project that had been before the Zoning Board of Appeals in 2007. For record keeping purposes this information is listed below:
Comparison of Plan Approved by Zoning Board of Appeals on October 16, 2007 to Current Plan
Previous Concept Plan (Oct. 2007) Current Concept Plan
1. Units – 59 Units – 56
2. Density per Acre – 4.05 units Density per Acre – 3.78 units.
3. Green Space – 8.45 acres (57%) Green Space – 9.73 acres (65.6%).
4. Wetlands Impacts – 1.13 acres¹. Wetland Impacts - .018 acre.
5. Wetland Mitigation – None provided. Wetland Mitigation - .301 acres
Provided – U.S. Army Corps of
Engineers prefers on- site mitigation.
6. No stormwater management pond. Stormwater Management pond has
Been provided that will comply with
the NYSDEC’s stringent standards for stormwater quantity and quality.
7. Impacts to 100-year floodplain. Decreased impact to 100-year flood plain as a result of relocation of build ings and reduction of density.
8. Surplus parking not provided. 12-surplus parking spaces provided for. visitors, family events, etc…
9. Layout did not promote Layout promotes community feeling, community feeling. centralized and useable green space, possible community amenities.
____________________________________________________________
¹ The size of the federal wetlands on the Project Site has increased from 1.14 acres to 2.31 acres per correspondence issued by Donald Wilson on July 15, 2009.)
Mr. Hopkins reviewed the variances being requested with the Board members and explained that the project was delayed due to wetland issues at the site. He told the Board that the number of variances has increased due to the project being revised. Revisions included the elimination of locating buildings in the wetland areas, compliance with the NYS DEC stormwater management regulations and creation of surplus parking at the site for guests.
Mr. Mateer asked Mr. Hopkins to compare what variances are being asked for at this point in time. Mr. Hopkins stated that there are 10-setback variances needed for the distance that structures are located from the property line; in terms of the setbacks from a R.O.W. from an access road there are 17 variances needed; with regards to the distances between structures, Mr. Hopkins told the Board that he believes 6 to 8 variances are needed. Mr. Hopkins stated that in 2007 there were 22 or 23 variance requests approved for this project; the revised project has increased the variance requests by approximately 8 or 9. Mr. Mateer questioned if additional parking spaces
could be added for guests at the site and this was discussed briefly with Mr. Hopkins noting that it was possible.
The Board members discussed the stormwater management pond proposed for the site with Mr. Metzger, who noted that New York State mandates that a wetted pond be constructed. Vegetation, such as grasses, will be used to control erosion on the sides of the pond and a fountain may be used to control water flow. A bench system will be constructed around the pond to aid with safety issues.
Mr. Metz established that the applicant would like to construct two-story buildings with 56-two bedroom units that will be owner occupied. The units will sell for minimally $200,000 and be 1,500-sq.ft. in size. There will not be a maintenance building on the site, therefore, a homeowner’s association will contract to outsource maintenance of the site and infrastructure.
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 communications have been received.
The Chairwoman discussed the two plans before the Board with the members. She noted that she prefers the currently proposed plan. She confirmed with Mr. Hopkins that the applicant is 100% “to go” on this project.
Mr. Zajac stated that he finds the newer plan more acceptable than the previous plan as the project has been located further away from the wetland areas.
Mr. Zajac made a motion, seconded by Mr. Holmwood, 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.
The Chairwoman made a MOTION, seconded by Mr. Zajac, to GRANT the Area Variances for the following reasons with a STIPULATION.
1. There will be no undesirable change in the character of the neighborhood; the newest version of the proposal is an improvement from what was granted almost two-years ago.
2. The benefit sought cannot be achieved in any other way. Additional green space was gained and the changes in the increase in the wetlands created the need to make changes in the project again.
3. There will be no adverse effect or impact on the physical or environmental conditions of the neighborhood.
5. The difficulty was not self-created due to changes in the wetlands.
This variance is granted with the following stipulation:
1. The variance is granted for a period of 24-months.
THE VOTE ON THE MOTION BEING:
LITWIN AYE
HOLMWOOD AYE
MATEER NAY
METZ NAY
ZAJAC AYE
THE VOTE ON THE MOTION BEING TWO (2) AGAINST AND THREE (3) IN FAVOR, THE VARIANCE IS HEREBY GRANTED WITH A STIPULATION.
There being no further business to be presented to the Board at this time Chairwoman Litwin adjourned the meeting at 8:13 P.M.
DATED: August 17, 2009 Respectfully submitted,
REVIEWED: September 11, 2009 Rosemary Seivert, Secretary
Zoning Board of Appeals
Jo Ann Litwin, Chairwoman