ZONING BOARD OF APPEALS OF THE TOWN OF ORCHARD PARK, Erie County, New York, minutes of the October 20, 2009 meeting held in the Basement Public Meeting Room, S4295 South Buffalo Street.
MEMBERS PRESENT: Jo Ann Litwin, Chairwoman
Donald Holmwood
Joseph Liberti
Robert Metz
Richard Zajac
Dwight Mateer, Alternate
OTHERS PRESENT: David Holland, Code Enforcement Officer
J. Michael Wolf, Deputy Town Attorney
Rosemary Seivert, Zoning Board of Appeals Secretary
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 SEPTEMBER 15, 2009 REGULAR MEETING:
Upon a motion duly made and seconded, the reading of the minutes of the September 15, 2009 Zoning Board of Appeals meeting was unanimously waived as each Board Member had previously received copies.
Mr. Zajac made a MOTION, seconded by Mr. Liberti to ACCEPT the minutes of the September 15, 2009 Zoning Board of Appeals meeting as presented.
THE VOTE ON THE MOTION BEING:
LITWIN AYE
LIBERTI AYE
HOLMWOOD AYE
METZ AYE
ZAJAC AYE
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
METZ AYE
ZAJAC AYE
NEW BUSINESS
1. ZBA File #30-09, Andy Romanowski & Alliance Homes, 2 Aaron Trail, Zoned R-2 (Sub Lot 1, Map Cover 3335; SBL#172.18-1-5). Requests an Area Variance to construct a single family dwelling with a lot coverage of 13%. Maximum lot coverage for this R-2 lot is 12%, Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.
APPEARANCE: Mr. Andy Romanowski, representing applicant
Mr. Romanowski told the Board that the applicant requires all living space to be on one floor. He further told the Board that he feels the footprint of the home has been decreased as much as possible and that re-designing the home is not possible. The neighboring residents have no objections.
Mr. Liberti established that the applicant cannot use stairs, therefore, a hardship exists.
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. Metz made a MOTION, seconded by Mr. Liberti, 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, other than 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 district.
5. Although the difficulty is self-created this does not preclude the granting of the variance.
THE VOTE ON THE MOTION BEING:
LITWIN AYE
LIBERTI AYE
HOLMWOOD AYE
METZ AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE VARIANCE IS HEREBY GRANTED.
2. ZBA File #31-09, Deborah Gawron, 6 Woodthrush Trail, Zoned R-1 (Sub Lot 21, Map Cover 3005; SBL#173.11-1-13). Requests an Area Variance to construct an addition which will increase lot coverage to 13.37%. Maximum lot coverage for this R-1 lot is 12%, Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.
The Chairwoman stated that the applicant withdrew their petition for the variance and asked that the item be removed from the agenda.
3. ZBA File #32-09, John Henderson & Niagara Frontier Recovery, 3958 Southwestern Blvd., Zoned B-2 (Part of Farm Lot 40, Township 9, Range 7; SBL#160.12-3-18). Requests a Use Variance to allow a residence and a business to co-exist on this parcel. Uses permitted in R-Districts shall not be permitted on the same lot with uses permitted in B-Districts, Section 144-20D. Note: this request was granted on 10/16/07 for a two-year period, ZBA File #45-07.
APPEARANCE: Mr. John Henderson, Applicant/Property Owner
Mr. Henderson explained to the members that he would like to renew a variance previously granted for this parcel that allows a residence and a business to co-exist. He told the Board that it has not been a good business year and he is not ready to operate the property solely as commercial; this would create a hardship for him. He further stated that the rental money taken in from the residential portion is required for economic reasons. Mr. Henderson noted that he is an Orchard Park resident and he does not want to re-locate his business, the property is well maintained and there is a long history of dual usage in the area. Mr. Henderson believes his business will improve in the future, and at that time he will expand and the use of the parcel will become solely commercial.
Mr. Zajac established that Mr. Henderson feels a reasonable time-line for the granting of the variance would be 5-years.
The Chairwoman then asked if there was anyone in the audience who would wish to speak in favor of granting the variance.
PROPONENT:
Tenant residing at Mr. Henderson’s rental property
3958 Southwestern Blvd.
Orchard Park , New York 14127
The resident spoke noting that he and his wife work in Orchard Park and support the variance request.
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. Liberti 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.
LITWIN AYE
LIBERTI AYE
HOLMWOOD AYE
METZ AYE
ZAJAC AYE
Mr. Zajac made a MOTION, seconded by Mr. Metz, to GRANT the Use Variance for the following reasons with a STIPULATION:
1. Strict application of the regulations will deprive the applicant of a reasonable return on the property.
2. The hardship is 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. The variance will expire in five (5) years.
THE VOTE ON THE MOTION BEING:
LITWIN AYE
LIBERTI AYE
HOLMWOOD AYE
METZ AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE VARIANCE IS HEREBY GRANTED WITH A STIPULATION.
4. ZBA File #33-09, Mr. & Mrs. Maurice Moore, 23 Falconcrest Lane, Zoned R-3 (Sub Lot 78, Map Cover 2721; SBL#153.10-4-33). Requests an Area Variance to construct a covered porch with a 26-ft. front setback. Minimum front setback for this R-3 lot is 30-ft., Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.
APPEARANCE: Mr. Moore, Applicant/Property Owner
Mr. Moore told the Board that he would like to upgrade his home and construct a covered porch. He explained to the members that when his home was constructed he did not know that if a porch was added in the future he would encroach on the front setback area; otherwise, he would have located the home further back. He told the Board he does not feel the variance request to construct the covered porch will be a detriment to the neighborhood. A rendering of the proposed addition was provided to the Board and Mr. Moore stated that every effort was made to have the porch blend with the architecture 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.
(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. Liberti made a MOTION, seconded by Mr. Holmwood, to GRANT the variance request for the following reasons:
1. There will be no undesirable changes in 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 self-created; however, this does not preclude the granting of the variance.
THE VOTE ON THE MOTION BEING:
LITWIN AYE
LIBERTI AYE
HOLMWOOD AYE
METZ AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE VARIANCE IS HEREBY GRANTED.
5. ZBA File #34-09, Neil Kavanaugh, 34 Grandview Trail, Zoned A-1 (Sub Lot 43, Map Cover 2722; SBL#185.17-1-43). Requests an Area Variance to construct a covered patio which will increase lot coverage to 9.67%. Maximum lot coverage for this A-1 lot is 7%, Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.
APPEARANCE: Mr. Neil Kavanaugh, Applicant/Property Owner
Mr. Kavanaugh desires to construct a covered patio to provide a shaded area for his family to use while enjoying their property. He told the Board that no trees exist at the site and that a deed restriction prevents him from planting trees that will exceed a height of 23-feet. Mr. Kavanaugh contacted “Awnings Plus” to have a canvas awning installed; however, they determined that due to the severe winds at this location it was not feasible to install an awning. Mr. Kavanaugh provided the Board with a correspondence dated 10/19/09 from Awnings Plus substantiating this. He also submitted nine (9) letters supporting his variance request from the following neighbors: Paul Hollins, 35 Grand View Trail; David & Lisa Burgio, 39 Grand View Trail; Maribel and Gary Kurdziel, 11 Falconview Court; Carl Armstrong, 60 Grand View Trail, James Ball, 47 Grand View Trail; Elizabeth Bruno, 52 Grand View Trail; Edward Plata, 56 Grand View Trail; Merle Whitehead, 49 Grandview Trail and Michael Ehlers, 50 Grandview Trail. The Chairwoman asked the secretary to enter these in to the permanent file.
Mr. Zajac asked who the property owner was of the adjacent vacant lot, however, Mr. Kavanaugh told the Board he did not know.
The Chairwoman then asked if there was anyone in the audience who would wish to speak in favor of granting the variance.
PROPONENT:
Mr. Frank Stucke
20 Grandview Trail
Orchard Park, New York 14127
Mr. Stucke stated that he lives adjacent to Mr. Kavanaugh and he supports the variance request 100%.
Mr. Thomas Johnson
Developer
Orchard Park, New York 14127
Mr. Johnson spoke in favor of the variance request, noting that he feels the proposal is architecturally correct.
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. Liberti 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; it will actually enhance the neighborhood.
2. The request is not substantial.
3. There will be no adverse effect or impact on the physical or environmental condi- tions of the neighborhood.
4. The difficulty is self-created; however, this does not preclude the granting of the variance.
.
THE VOTE ON THE MOTION BEING:
LITWIN AYE
LIBERTI AYE
HOLMWOOD AYE
METZ AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE VARIANCE IS HEREBY GRANTED.
6. ZBA File #35-09, James E. Kavanaugh, 14 Old Orchard Lane, Zoned R-2 (Sub Lot 59, Map Cover 2268; SBL#183.12-4-10). Requests an Area Variance to construct a garage addition with a 3.8-ft. side setback. Minimum side setback in this R-2 Zone is 10-ft., Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.
APPEARANCE: Mr. James Kavanaugh, Applicant/Property Owner
Mr. Kavanaugh explained to the Board that he needs more storage and living space for his family. He submitted a letter of support from Mr. & Mrs. Lattanzio of 18 Old Orchard Lane, stating that they had no objection to the variance request. This correspondence will be entered into the permanent file.
Mr. Zajac established that Mr. Kavanaugh does not feel that placing the garage addition forward, towards the street, would be appealing or ascetically fit the neighborhood.
Mr. Liberti asked if Mr. Kavanaugh had spoken with his other neighbors and he told the Board that he had; three of his neighbors are present this evening to speak in support of the variance request.
The Chairwoman then asked if there was anyone in the audience who would wish to speak in favor of granting the variance.
PROPONENT:
Mr. Harry Forest
10 Old Orchard Lane
Orchard Park, New York 14127
Mr. Forest stated that he supports the variance request.
Mr. Robert Deyell
61 Sleepy Hollow Lane
Orchard Park, New York 14127
Mr. Deyell told the members that he supports the variance request.
Mr. Marianna, a contractor located at;
102 West Field Road
New York State
Mr. Mariana told the Board that he supports the request for the variance. He further stated that he had worked on the proposed layout for Mr. Kavanaugh and that the addition must be located on the north side of the home.
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 established with Code Enforcement Officer David Holland that the front setback is 40-feet in this R-2 zone. If the garage were located here, the applicant would need a variance.
Mr. Zajac made a MOTION, seconded by Mr. Holmwood, to GRANT the variance based on the following:
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; if the applicant located the addition forward he would need to be before this Board again.
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 vari- ance.
LITWIN AYE
LIBERTI AYE
HOLMWOOD AYE
METZ AYE
ZAJAC AYE
THE MOTION IS UNANIMOUSLY PASSED.
7. ZBA File #36-09, Thomas J. Johnson Construction, 9 Highbrook Ct., Zoned R-1 (Sub Lot 12, Map Cover 3190; SBL#186.05-4-12). Requests (2) Area Variances to proceed with the construction of a single family dwelling. First, to allow lot coverage of 14.1%. Maximum lot coverage for this R-1 lot is 12%. Second, to allow a rear setback of 51.6-ft. Minimum rear setback is 60-ft. Section 144-9B, Schedule of Height, Lot, Yard & Bulk Regulations.
APPEARANCE: Mr. Thomas Johnson, Applicant
Mr. Johnson explained to the Board that he believed he had constructed an appropriately sized home and placed it correctly upon this lot until he was informed by Code Enforcement Officer David Holland that this was not the case and that Town Codes were violated. Mr. Johnson reviewed the site plan with the Board and explained that he does not feel that anyone will be impacted by the error. The property at the rear is deeded to the Town and beyond that, there are railroad tracks. In addition, the home is 3,300-sq.feet; Mr. Johnson does not feel that this is an extremely large home for this lot.
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.
Ms. Litwin made a MOTION, seconded by Mr. Holmwood, to GRANT the variance requests for the following reasons:
1. There will be no undesirable change in the character of the neighborhood or a det- riment to the nearby properties.
2. The request is not substantial; the setbacks will not affect a direct neighbor at the rear.
3. The lot coverage of 14.1% will be granted based on the existence of the tree preservation area at the rear and the shape of the lot.
4. There will be no adverse effect or impact on 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
LIBERTI AYE
HOLMWOOD AYE
METZ AYE
ZAJAC AYE
THE VOTE ON THE MOTION BEING UNANIMOUS, THE VARIANCE IS HEREBY GRANTED.
There being no further business to be presented to the Board at this time Chairwoman Litwin adjourned the meeting at 7:38 P.M.
DATED: December1 8, 2009 Respectfully submitted,
REVIEWED: December 11, 2009 Rosemary Seivert, Secretary
Zoning Board of Appeals
Jo Ann Litwin, Chairwoman