ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the March 17, 2009 meeting held in the Basement Public Meeting Room, S4295 South Buffalo Street.
MEMBERS PRESENT: Jo Ann Litwin, Chairwoman
Joseph Liberti
Robert Metz
Richard Zajac
Dwight Mateer, Alternate
EXCUSED: 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 FEBRUARY, 2009 REGULAR MEETING:
A motion was made by Mr. Liberti, seconded by Mr. Mateer, to accept the minutes of the February 17, 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
LIBERTI AYE
MATEER AYE
METZ AYE
ZAJAC AYE
THE VOTE ON THE RESOLUTION BEING UNANIMOUS, 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
LIBERTI AYE
METZ AYE
MATEER AYE
ZAJAC AYE
NEW BUSINESS
1. ZBA File #03-09, Susan Jawad, Village Tailor, 3479 Orchard Park Road, Zoned B-4 (Part of Sub Lot 5, Map Cover 1867; SBL#152.20-4-9). Requests 3 variances to proceed with a Change-In-Use from Single-Family to Single-Family with Business. First, to allow this service type business in this B-4 Zone (not permitted per Schedule of Use Controls, Section 144-9-A). Second, to allow a residence and business to co-exist on this property (not permitted per Section 144-20D). Third, to allow vehicle parking in the front yard (prohibited per Schedule of Use Controls Section, 144-9A).
APPEARANCE: Mrs. Susan Jawad, Applicant
Mrs. Jawad told the Board that she would like to purchase this property, reside in the home and operate her business here.
The Board members’ questions established that Mrs. Jawad currently operates a business in the Village of Orchard Park and that she will require approximately 3 to 4-parking spaces. Mrs. Jawad anticipates 4 to 5 customers per day, averaging one customer visiting her business at a time. Mrs. Jawad discussed vehicle ingress and egress at the site. She told the Board that she plans to locate the parking at the front of the site and that a turn-around area may be put in to eliminate vehicles from backing out onto Orchard Park Road. She further told the Board that she will occupy the residence with her family.
The Chairwoman then asked if there was anyone in the audience who would wish to speak in favor of granting the variance.
PROPONENT
Mr. Anthony Turton, Jr.
3438 Orchard Park Road
Orchard Park, New York 14127
Mr. Turton stated that he is in favor of the request; however, he would like the Board to stipulate that the variance remain in affect only if the site is owner occupied. Mr. Turton verified that the proposed parking will be reviewed by the Planning Board during the Site Plan review process.
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 a response was received from both the Erie County Department. of Public Works Div. of Highways and the Erie County DEP-DSM; however, neither agency opposes the variance request. These comments will be copied to the Planning Board file.
The Board members agreed that if a motion is made to grant the variance a stipulation will be included that Mrs. Jawad shall reside here. Further, if the property is sold the variance shall not transfer to the new property owner.
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.
Mr. Liberti made a MOTION, seconded by Mr. Metz, to GRANT three Variance requests with a STIPULATION based on the following:
1. The hardship is unique, and does not apply to a substantial portion of the district or the neighborhood.
2. The variance will not alter the essential character of the neighborhood as most of the outlining area is mainly business.
3. I believe the hardship was self-created; however that does not preclude the granting of the variance from having a single family to single family with business; also, allowing a residence and a business to co-exist.
4. The variance is to allow vehicle parking in the front yard.
This variance is granted with the following Stipulation:
1. The Use Variance is only to apply to Susan Jawad; she must reside here and operate her business at this site. The variance cannot be transferred to another party through sale of the home or rental of the property.
THE VOTE ON THE MOTION BEING:
LITWIN AYE
LIBERTI AYE
MATEER AYE
METZ AYE
ZAJAC AYE
THE MOTION IS UNANIMOUSLY PASSED.
2. ZBA File #04-09, Charles & Angeline Pizzolanti, 10 Hilltowne Drive, Zoned R-2 (Sub Lot 2, Map Cover 2940; SBL#172.19-1-3). Requests an Area Variance to construct a single family dwelling with a lot coverage area of 15.4%. Maximum lot coverage for this R-2 lot is 12%, Section 144-9B, Schedule of Height, Lot, Yard and Bulk Regulations.
APPEARANCE: Mr. & Mrs. Charles Pizzolanti, Applicants
The Chairwoman stated that the Board will review and discuss item #2 and #3 at the same time.
Mr. and Mrs. Pizzolanti told the Board that after careful research they chose to have Forbes Capretto Custom Home Builders build their proposed 3,089-sq. ft. “dream” home on a lot in the Hilltowne Subdivision. In reviewing the lots available for purchase, two remain (lots 9 and 20) that will not require a variance. Mrs. Pizzolanti told the Board that they feel they will suffer a hardship if they build on either of these lots as there is less useable land for yard space. She explained that Sub Lot 9 slopes towards a berm that occupies a considerable portion of the rear yard, which is bordered by exit and entrance ramps for Route 219. In addition, a clause on the land map indicates that there could be a “possible future fee acquisition by NYSDOT”. With regards to Sub Lot 20, Mrs. Pizzolanti told the Board that this property slopes downward to Smokes Creek, leaving little or no flat land for back yard use.
Mr. Pizzolanti told the Board members that they desire to build their “dream home” on property with a greater amount of flat land; however, their proposed home exceeds the lot coverage allowed by the Town Code for the lots that remain available, #2 and #5.
Mrs. Pizzolanti told the Board that if the variance is granted and the home is built it will appear that there is a spacious yard; therefore, she does not feel the granting of the variance will have a negative impact on the character of the neighborhood. She further feels the variance will have a positive effect on the neighborhood as the proposed home will uphold the value of the surrounding properties and help bring completion to the development. Mrs. Pizzolanti noted that, although no variance is needed if the home is constructed on lot 9 or 20, the appearance of either property would be smaller with a smaller useable back yard area. If the variance is granted to construct the home on either Sub Lot 2 or 5 there will be no effect on a rear yard neighbor.
Mrs. Pizzolanti noted that a petition signed by several area neighbors supporting the variance request was submitted for the Boards’ review.
Mr. Zajac asked if the applicants would be willing to reduce the size of the home. Mr. Pizzolanti told the Board that this is their “dream home” and if they have to change the footprint of the house they would live somewhere else before they would do that.
Chairwoman Litwin noted that the Pizzolanti’s found the house that they wanted to build, prior to finding the lot.
Mr. Pizzolanti discussed lot #2, noting that this is the lot that they desire, as it will provide them with approximately 70-feet of backyard area. He told the Board that the builder had not been aware that there would be a problem with the lot coverage as the nearby Breezewood Subdivision was built with lot coverage requirements set at 20%. He further explained to the Board that their decision to live here included reasons such as cost and lot appearance.
Mr. Liberti discussed reducing the size of the home with the applicants. He confirmed with Building Inspector David Holland that if the applicants build their 3,089-sq. ft. home on Sub Lot #2, only 2,408-sq. ft. is allowed. This is a difference of 681-sq. ft. If they build the home on Sub Lot #5, which is larger, the difference is 481-sq. ft. Mr. Liberti told the Pizzolanti’s that he is trying to establish what their hardship is and the flexibility they may have. However, Mr. Pizzolanti told the Board that with regards to flexibility they would build on Lot 5, rather than Lot 2; they are not willing to change the proposed home.
Mr. Mateer discussed building on Lot 9 and removing the berm; however, Building Inspector Holland stated that the berm is part of the approved Subdivision plan and it cannot be removed. Mrs. Pizzolanti noted, again, that there is a notation on the site plan for this lot that indicates a “possible future fee acquisition by NYSDOT”.
The Chairwoman then asked if there was anyone in the audience who would wish to speak in favor of granting the variance.
PROPONENT
Mr. Joe Spino
18 Judith Drive
Orchard Park, New York 14127
Mr. Spino stated that he supports the request for the area variance. He was promised by the builder that similar homes would be built in this subdivision and that the homes would be no less than 2,600-sq.ft. in size. Mr. Spino told the Board that his home is 3,000-sq.ft. He would like the value of his and his neighbors’ homes kept up and not brought down.
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.
Chairman Litwin stated that she is pleased to see that this is a request from an applicant that would like to build a home and occupy it immediately; not a builder who will just build a home and have it for sale. She feels that the Board must consider today’s economy and the fact that development in the Town of Orchard Park is currently not similar to the level of development of the past several years. She feels that the applicant has a financial hardship and she would prefer to see an occupancy and not a vacant lot. She noted that in the past, the Board tried to achieve a compromise with the applicant when reviewing a request. In this case, based on her own personal feelings she would embrace the applicant wanting to move into our community and she would support the variance request. Ms. Litwin also stated that in her experience lots near a subdivision entrance are more difficult to sell than those farther in. She also commented
that lots #2 and #5 backup to a buffer area along the new Armor Road R.O.W., giving the appearance of deeper, larger lots. Chairman Litwin discussed the fact that she feels the character of the neighborhood will look better with a home constructed upon lot 2 and she also stated that just further down the street in another subdivision 20%-lot coverage is allowed.
Mr. Zajac discussed the request and concluded that he can not support exceeding the Town’s 15% maximum lot coverage requirement.
Mr. Liberti stated that he appreciates the fact that applicant found a home he wants to build in Orchard Park; however he is struggling with what the applicant’s “hardship” is.
The Board members discussed their feeling regarding this request. Chairman Litwin offered that a motion could be made to grant the request regarding agenda item #2 (Sub Lot 2). If that motion is denied a motion could then be made regarding Item #3 (Sub Lot #5).
Chairman Litwin made a MOTION, seconded by Mr. Mateer, to GRANT the variance request for Sub Lot #2, with a 15.4% lot area coverage; maximum lot coverage is 12% for the following reasons:
1. I do not believe there will be an undesirable change in the character of the neighborhood or a detriment to nearby properties. I feel the proposed house will create a better community feel for the area in that it will lend a better site view for the potential new buyer that comes into the subdivision seeing homes being built and occupied on the entranceway into the subdivision.
2. The benefit can be achieved in another way by placing the home on another lot; however, the applicant’s back yard will be jeopardized in its size due to different geographic configurations in the subdivision.
3. I do not feel the request is substantial; the house is laid out such that much of the excess square footage is screened by the front loading garages; therefore, not noticed from the front elevation.
4. I do not believe building a house on Lot #2 will negatively impact the physical or environmental conditions of the neighborhood.
5. I believe the difficulty is not self-created. The Pizzolanti’s found their dream home and their dream neighborhood. Unfortunately, the zoning did not quite match; but that is why this Board exists, to grant a variance so people can prosper and be helped more in these economically difficult times.
THE VOTE ON THE MOTION BEING:
LITWIN AYE
LIBERTI NAY
MATEER AYE
METZ NAY
ZAJAC NAY
THE MOTION BEING THREE (3) AGAINST AND TWO (2) IN FAVOR, THE MOTION
FAILS.
Chairman Litwin made a MOTION, seconded by Mr. Mateer, to GRANT the variance request for Sub Lot #5, with a 14.3% lot area coverage; maximum lot coverage is 12% for the following reasons:
1. I do not believe there will be an undesirable change in the character of the neighborhood or a detriment to nearby properties. I feel the proposed house will create a better community feel for the area in that it will lend a better site view for the potential new buyer that comes into the subdivision seeing homes being built and occupied on the entranceway into the subdivision.
2. The benefit can be achieved in another way by placing the home on another lot; however, the applicant’s back yard will be jeopardized in its size due to different geographic configurations in the subdivision.
3. I do not feel the request is substantial; the house is laid out such that much of the excess square footage is screened by the front loading garages; therefore, not noticed from the front elevation.
4. I do not believe building a house on Lot #2 will negatively impact the physical or environmental conditions of the neighborhood.
5. I believe the difficulty is not self-created. The Pizzolanti’s found their dream home and their dream neighborhood. Unfortunately, the zoning did not quite match; but that is why this Board exists, to grant a variance so people can prosper and be helped more in these economically difficult times.
THE VOTE ON THE MOTION BEING:
LITWIN AYE
LIBERTI AYE
MATEER AYE
METZ AYE
ZAJAC AYE
THE MOTION IS UNANIMOUSLY PASSED.
The Chairwoman stated that the Board will review and discuss items number 2 and 3 at the same time. (Please see prior case for ruling.)
4. ZBA File #06-09, Henry J. Penkalski, 15 West Royal Hill Zoned R-3 (Sub Lot 28, Map Cover, 2521; SBL#153.10-1-28). Requests an Area Variance to construct a garage addition with a 4.16’ side setback. Minimum side setback in this R-3 Zone is 10-ft., Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.
APPEARANCE: Mr. Marc Romanowski, Attorney for his father-in-law
Mr. Romanowski presented and explained proposed plans for a wood working shop that his father-in-law, Mr. Penklaski, would like to construct. He told the Board that Mr. Penkalski is retired and occupies his time with his hobby of woodworking. The proposed structure will be constructed to match the existing home; if Mr. Penkalski sells
the property, the structure can easily be adapted into a garage. He told the Board that a concrete pad that currently exists at the site will be used as the base for the proposed 14-ft. x 24-ft. structure. In addition, there will be one man door for ingress and egress. Mr. Romanowski told the Board that he spoke to Mr. Penkalski’s neighbors and he met with the neighbor on the right of the home; no one expressed objections to the variance request. He further told the Board that he feels the location chosen is the best possible choice for the structure.
The Board members’ questions established that no vehicles will be parked in the structure; it is being built for the purpose of Mr. Penkalski’s woodworking hobby. The size of the structure was based on using it as a garage if the property is sold in the future. It was noted that Mr. Penklaski has been working in his drive way on items with his saw. The construction of the structure will aid in lessening noise produced and a dust evacuation system will reduce and control saw dust generated.
The Chairwoman then asked if there was anyone in the audience who would wish to speak in favor of granting the variance.
PROPONENT:
Mr. Gary Fosbrink
39 E. Royal Hill Drive
Orchard Park, New York 14127
Mr. Fosbrink stated that he was a shop teacher and he supports the variance request. He told the Board that the area sound will be decrease by having the operation enclosed.
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 Ms. Litwin, to GRANT the Area Variance 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 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.
THE VOTE ON THE MOTION BEING:
LITWIN AYE
LIBERTI NAY
MATEER AYE
METZ AYE
ZAJAC AYE
THE MOTION BEING FOUR (4) IN FAVOR AND ONE (1) AGAINST, THE MOTION IS PASSED.
There being no further business to be presented to the Board at this time Chairwoman Litwin adjourned the meeting at 8:22 P.M.
DATED: March 31, 2009 Respectfully submitted,
REVIEWED: April 1, 2009 Rosemary Seivert, Secretary
Zoning Board of Appeals
Jo Ann Litwin, Chairwoman