Zoning Board of Appeals Minutes

WEST SENECA TOWN OFFICES          WEST SENECA ZONING BOARD

1250 Union Road                                Minutes #2007-09

West Seneca, NY   14224                   October 24, 2007

 

 

The regular meeting of the Zoning Board of Appeals of the Town of West Seneca was called to order by Chairman William Bond on Wednesday, October 24, 2007 at 7:00 P.M. followed by the Pledge of Allegiance.

 

ROLL CALL:          Present    -   William Bond, Chairman

Penny K. Price

Daniel P. Dunn

Sandra Giese Rosenswie

                                                Michael Hughes

                                                Paul Notaro, Deputy Town Attorney

                                                William Czuprynski, Code Enforcement Officer

 

 

OPENING OF PUBLIC HEARING

 

          Motion by Mrs. Price, seconded by Mrs. Rosenswie, to open the Public      Hearing.

 

          Ayes:  All                         Noes: None                     Motion Carried

 

APPROVAL OF PROOFS OF PUBLICATION

 

Motion by Mr. Dunn, seconded by Mr. Hughes, to approve the proofs of publication and posting of legal notice.

 

Ayes: All                          Noes: None                      Motion Carried

 

APPROVAL OF MINUTES

 

Motion by Mr. Dunn, seconded by Mr. Hughes, to approve Minutes #2007-08 of September 26, 2007.

 

Ayes: All                          Noes: None                      Motion Carried

 

          Mr. Bond noted that the following items have been withdrawn by the       applicants:

 

 

WEST SENECA TOWN OFFICES          WEST SENECA ZONING BOARD

1250 Union Road                                Minutes #2007-09

West Seneca, NY   14224                   October 24, 2007

                                                           Page two . . . 

 

 

2007-085     Request of Canisius High School for a variance for property located at 2869 Clinton Street to allow installation of oversized free standing LED sign.

         

2007-087     Request of National Grid for a variance for property located at 993 Indian Church Road to allow placement of 2 or 3 construction trailers on substation property.

 

TABLED ITEM:

 

2007-078     Request of Russell Gaglia for a variance for property located at 141 Pacecrest Court to erect covered front porch 24 ft from front property line (30 ft required).

 

                   Motion by Mrs. Price, seconded by Mr. Dunn, to remove this item from the table.

 

                   Ayes:  All                Noes: None                     Motion carried

 

                        Russell Gaglia, 141 Pacecrest Court, stated he would like to add a covered porch to the front of his house. 

 

                   Mr. Bond noted that he did not see any other homes in the immediate area with covered porches.

 

                   Mr. Gaglia disagreed, stating there were at least three covered porches on the street.  He submitted letters of no objection from residents at 133 Pacecrest Court, 134 Pacecrest Court and 147 Pacecrest Court.  The porch will be made of vinyl, but will have the appearance of wood.

 

                   Mr. Hughes asked if the porch would be screened in.

 

                   Mr. Gaglia stated it would only be covered, not screened in.

 

                   Mr. Bond asked if the porch would be used as an area to sit out in front of the house.

 

WEST SENECA TOWN OFFICES          WEST SENECA ZONING BOARD

1250 Union Road                                Minutes #2007-09

West Seneca, NY   14224                   October 24, 2007

                                                            Page three . . . 

 

 

                   Mr. Gaglia stated that was correct.

 

                   Mr. Dunn stated he was was having difficulty in finding a hardship on the part of applicant and noted that variances are usually given in situations where the applicant suffers from a hardship due to the existing condition or his situation is not equal with the neighbors.

 

                   Mr. Gaglia stated there were at least three covered porches on the street, similar to his proposed porch.  One is only two doors away, and another across the street.

 

                   No comments were received from the public.

 

                   Motion by Mr. Hughes, seconded by Mrs. Rosenswie, to close the public hearing and grant a variance for property located at 141 Pacecrest Court to erect covered front porch 24 ft from front property line.

 

                   Ayes:  Three (3)      Mr. Hughes, Mrs. Rosenswie, Mrs. Price

                   Noes: Two (2)        Mr. Bond, Mr. Dunn

 

                   Mr. Hughes noted that this item was tabled from last month for the applicant to provide letters from the adjoining neighbors and applicant complied with that request.              Motion carried

 

2007-082     Request of Kenneth Kelchun for a variance for property located at 37 East Center Road to allow overweight vehicle on premises.

 

                   Kenneth Kelchun, 37 East Center Road, stated he has owned the vehicle in question for fourteen years.  It is his source of transportation to work and is used to store his tools used in his trade.  He works a 9 to 5 job as a self employed contractor for a non nunion Tradesman International which has an office on Walden Avenue.  He noted that the vehicle was present and visible when the complaining party purchased his property last year.

 

                   Mrs. Rosenswie asked if there was any other place for applicant to park his vehicle.                

WEST SENECA TOWN OFFICES          WEST SENECA ZONING BOARD

1250 Union Road                                Minutes #2007-09

West Seneca, NY   14224                   October 24, 2007

                                                            Page four . . . 

 

                  

                   Mr. Kelchun stated this is a diesel truck and there is no other place to park it. 

 

                   Mr. Bond stated he understood the applicant’s situation but this situation in not unique in that there have been number of requests to this Board in the past with the same problem.  If the requested variance was granted, the Board would be inundated with similar requests from residents in similar situations.

 

                   Mr. Kelchun responded that there are three other one-ton vehicles parked on East Center which is a short street.  Those truck owners have never been approached by the town.

 

                   Mr. Dunn stated the issue with a diesel vehicle is the noise when the vehicle is started up early in the morning.  This can be disconcerting to the neighbors.  People may not understand that when initially buying a house, but come to understand the problem once they move in.

 

                   Mr. Kelchun stated he understood this, but one of the people in the complaining house leaves before he does in the morning and the other person leaves shortly after he does.

                  

                   Mr. Bond agreed, noting he has a similar situation where he lives and can understand how disruptive a diesel truck can be in term of noise.  He asked if the applicant was cited and fined.

 

                   Mr. Kelchum stated he was cited but not fined.  The judge stated he was not allowed to park in the driveway until the issue was resolved by this Board and he has abided by that ruling.

 

                   Deputy Attorney Notaro stated this matter has been adjudiated.  The judge imposed a fine schedule if the vehicle was parked in the driveway without the benefit of a variance.  Mr. Kelchum, to his knowledge, has not violated the court order, but will become an issue once the no parking ban is in effect.  He also noted that there have been a few select cases in the past involving a vehicle of this type that was permitted to park on the applicant’s property when

WEST SENECA TOWN OFFICES          WEST SENECA ZONING BOARD

1250 Union Road                                Minutes #2007-09

West Seneca, NY   14224                   October 24, 2007

                                                            Page five . . . 

 

 

                   the vehicle was being used solely as the main breadwinner’s vehicle and no business was being operated out of the home.

 

                   Tom Locher, 45 East Center Road, submitted photographs of the diesel truck. 

 

                   Mr. Bond referred to the one photograph submitted showing three vehicles in the driveway.

 

                   Mr. Locher stated one of the vehicles has no plates on it and is unregistered.  He is the closest neighbor to applicant, on the driveway side.  In the past, the applicant has parked his oversized truck in the driveway which is in a residential neighborhood and adversely affects the neighborshood.  When the vehicle is backed into the driveway, the exhaust pipe of the truck faces their bedroom or living room window, depending on how far back in the applicant pulls the truck.  The vehicle has a diesel engine and emits a cloud of smoke and soot when started and which can be smelled in their bedroom and living room.  It also irritates the breathing of his wife who has asthma and leaves a terrible odor in the house.  The air conditioner was moved from the side of the house to the back due to the fumes it brought in from the truck.  He also felt the applicant was in violation of Judge McCabe order by continuing to park the vehicle in the driveway.  The applicant moved the vehicle to the front of the house after the town began threatening to fine him.  When the applicant parks his vehicle on the street it blocks the view of oncoming traffic and pushes two lanes of traffic into one lane.  This issue has been going on for over a year.

 

                   Mr. Bond asked who owned the three vehicles being parked on the property.

 

                    Mr. Kelchum stated one vehicle is owned by his daughter, he owns the truck, and his wife owns one vehicle. 

 

                   Mr. Bond stated trucks of this type block traffic when parked on the         street and may be banned in the future from parking on the street.

 

WEST SENECA TOWN OFFICES          WEST SENECA ZONING BOARD

1250 Union Road                                Minutes #2007-09

West Seneca, NY   14224                   October 24, 2007

                                                            Page six . . . 

 

 

                   Mr. Kelchum stated that is the reason the truck was moved to the front yard rather than being parked on the street, because buses could not pass through and students leaving the school often come down the street in their vehicles two abreast.

 

                   Mr. Hughes asked where the applicant’s employer was located.

 

                   Mr. Kelchum responded that the office is located on Walden Avenue near Dick Road.  He is unable to park his vehicle there.  It is similar to a strip plaza with businesses in it.

 

                   Mr. Hughes asked where applicant parks his vehicle during the day when working.

 

                   Mr. Kelchum responded that he goes directly to the job site.  He faxes his time card to the office and never physically visits the place.  This is a non union labor force and they only hire skilled trades.  His vehicle stores equipment valued at $40,000 and he does not want to leave it unattended.

 

                   Mr. Bond stated there are places which charge a fee to park a verhicle and the applicant may have to employ that option.

 

                   Motion by Mr. Dunn, seconded by Mr. Bond, to close the public hearing and deny the request for a variance for property located at 37 East Center Road to allow overweight vehicle on premises.

 

                   On the question, Mr. Bond stated there are two types of variances, an area variance and a use variance.  A use variance allows the use of a property not in conformity with the ordinance.  The standard for a use variance is much higher than for an area variance.  The applicant must demonstrate a hardship by unique circumstances that are not due to the general condition of the neighborhood and that the use is not compatible with the general   area.  It was his opinion that the applicant has not demonstrated a hardship due to unique circumstances in the neighborhood and the requested use is not compatible with the surrounding residential area.

WEST SENECA TOWN OFFICES          WEST SENECA ZONING BOARD

1250 Union Road                                Minutes #2007-09

West Seneca, NY   14224                   October 24, 2007

                                                            Page seven . . . 

 

                  

                   Mr. Dunn also noted it is not reasonable to have a person’s truck blowing smoke into a neighbor’s house and due to the length of time this situation has existed, applicant has had ample opportunity to make other accommodations.

 

                   Ayes:  All                Noes: None                     Motion carried

 

2007-083     Request of Seneca Steel for a variance for property located at 611 Indian Church Road to erect temporary storage structures on property.

 

                   Mr. Bond noted the absence of applicant.

 

                   Motion by Mr. Dunn, seconded by Mr. Hughes, to table this item until the November/December meeting.

 

                   Ayes:  All                Noes: None                     Motion carried

 

2007-084     Request of Thomas M. Doster for a variance for property located at 222 Thorndale Avenue to attach pool to house (10 ft separation required).

 

                   Thomas Doster, 222 Thorndale Avenue, stated that there was a deck on the back of the house with an attached pool deck when he purchased the house in 2002.  He would now like to put an addition on the house but when he applied for a building permit, it was brought to his attention that the pool deck was not in compliance with the town’s ordinance.

 

                   Mr. Bond noted that the issue is the distance between the two structures.  The required separation of 10 ft distance is for fire equipment to be able to get in between structures in the event of a fire. 

                  

                   Mr. Doster stated that he had a home inspection done at the time he purchased the property but was never informed of any code violation.  At this point, he would like to leave the pool where it is.

 

WEST SENECA TOWN OFFICES          WEST SENECA ZONING BOARD

1250 Union Road                                Minutes #2007-09

West Seneca, NY   14224                   October 24, 2007

                                                            Page eight . . . 

 

 

                   Mr. Bond noted the concern of the Zoning Board in the safety of children when a pool is attached to a deck.  He noted that the applicant’s application indicates a sliding gate is intact and a pool alarm has been purchased.

 

                   Mr. Doster stated he was aware of the safety issue and with the latch, his 3 year old son would not be able to get past the gate.

 

                   Mr. Dunn stated that was good as long as the applicant remembered to hook it.  The concern usually is that the gate automatically close when someone isn’t there so that a child could not end up in the pool if no one was watching.  He asked if the gate could be reconfigured to swing and automatically latch. 

 

                   Mr. Doster felt that was possible with an adjustment.

 

                   No comment was received from the public.

 

                   Motion by Mr. Bond, seconded by Mr. Hughes, to close the public hearing and grant a variance for property located at 222 Thorndale Avenue to attach pool to house, conditioned upon the installation of a self closing gate, so that a person cannot go from the house to the pool without physically opening a gate.

                            

                   Ayes:  All                Noes: None                     Motion carried

                  

2007-086     Request of Michael Albarella for a variance for property located at 244 Lein Road to erect pole barn 5 ft from rear property line (10 ft required).

 

                   Michael Albarella, 244 Lein Road, stated he would like to put up a storage barn but needs to be 5 ft off the neighbor’s property line to the rear and the ordinance requires 10 ft.

 

                   Mr. Hughes inquired about the purpose of the storage barn.

 

                   Mr. Albarella responded it was for storage of an antique car and a concession stand.

WEST SENECA TOWN OFFICES          WEST SENECA ZONING BOARD

1250 Union Road                                Minutes #2007-09

West Seneca, NY   14224                   October 24, 2007

                                                            Page nine . . . 

 

 

                   Mr. Bond asked if the applicant planned on having the barn even with the existing frame garage.

 

                   Mr. Albarella stated that was correct.

 

                   Mr. Bond asked if it was possible for applicant to move it another five feet.

 

                   Mr. Albarella said he wouldn’t have enough room to turn around.

 

                   Mr. Dunn asked if applicant was running a business out of the barn.

 

                   Mr. Albarella stated he operated a concession business in the summer time and needed the barn to store the stand in the winter time.       He would not be running a business from the barn.  Letters of no objection were submitted from neighbors.

 

                   No comments were received from the public.

 

                   Motion by Mrs. Price, seconded by Mrs. Rosenswie, to close the public hearing and grant a variance for property located at 244 Lein Road to erect pole barn 5 ft from rear property line.

 

                   On the question, Mr. Dunn noted his preference for applicant to have the ability to turn around on his own blacktop rather than in the street.

 

                   Mr. Bond noted applicant’s practical difficulty in that applicant would have to reconfigure his driveway.

 

                   Ayes:  All                Noes: None                     Motion carried

 

2007-088     Request of Inland Seas Gourmet Foods, Inc. for a variance for property located at 30 North American Drive to operate a smokehouse for salmon.

 

 

 

WEST SENECA TOWN OFFICES          WEST SENECA ZONING BOARD

1250 Union Road                                Minutes #2007-09

West Seneca, NY   14224                   October 24, 2007

                                                            Page ten . . . 

 

 

                   Lindsay Ruhland, President, 206 Eden Street, and Gregory Donohue, Chef, Inland Seas Gourmet Foods, Inc., appeared on the request for a variance. 

 

                   Mr. Bond referred to the application which stated “building inspector is refusing use due to smoke and odor beyond property line” and asked whether the applicant is questioning his interpretation or requesting a variance. 

 

                   Mr. Ruhland stated it was their opinion he was wrong.  They have already approached Al Carlucci from District No. 6 in Buffalo.  He is the gentleman who would issue the air permit and due to what is produced by Inland Seas Gormet, it was his opinion that not much fuel is used, so much charcoal and so much wood for anywhere between 500 and 1000 pounds of salmon.  Their status according to District 6 on the air permit would be exempt for the amount of fuel used, which is less than a charcoal hot dog stand would use.  There is a 4 inch vent for the stack.  The law requires 1 ft above the peak of the roof and the vent can be made higher than that, if needed. 

 

                   Mr. Czuprynski asked the applicant if an odor emits from the building, other than a smell out in the road.

 

                   Mr. Ruhland stated the smell would be similar to the restaurant on the corner.

 

                   Mr. Czuprynski stated the odor is then emanating past the property line and a variance is required.  To some people, the odor may be offensive and that will be the problem he will have to face in the future due to complaints from the neighborhood.

 

                   Mr. Donohue state it will smell like hickory wood.

 

                   Mr. Bond asked if a building permit could be issued and if there is a smell beyond the property line, then refuse to issue a certificate of occupancy.

 

WEST SENECA TOWN OFFICES          WEST SENECA ZONING BOARD

1250 Union Road                                Minutes #2007-09

West Seneca, NY   14224                   October 24, 2007

                                                            Page eleven . . . 

 

 

                   Mr. Czuprynski stated the applicants will be investing an amount of money in the building and they will want to run the business for a number of years without a problem. 

 

                   Mr. Bond stated the problem he sees with the request is that a variance is being asked for in the abstract before it is known what will happen.  It is unknown at this point whether the odor will emit 5 feet over the property line or all over the neighborhood.  It may be a noxious odor or may not be noxious.

 

                   Mr. Hughes asked if this situation is similar to a bar regulated by the noice ordinance and a complaint is made when the music becomes too loud.

 

                   Mr. Notaro stated he has a client unrelated to these gentlemen who operates a smoker larger than what is being discussed here and the odor is negligible at best.  The applicant is also located in the Industrial Park where there is a waste management company with garbage trucks, there is a number of industrial buildings that repair tractor-trailers, and a potential asphalt plant.  The area is an industrial setting and meant for this type of business with these type of functions.  It would be unfair to applicants to have them build a structure and then hope that someone doesn’t complaint about the odor of hickory wood.

 

                   Mr. Ruhland stated this is an existing building does not have a floor and is food capable.  They are looking to lease 5000 sq ft of the building.  They must deal with the Food and Drug Administration, a Rabbi and the State, and this is a very clean operation.  The product comes in from Alaska as a filet and is then skinned.  The skins are run through a press and the oil is extracted and sent to a cosmetic company or a pharmaceutical company.  The skins are wrapped and sent to sushi dealers.  The salmon is marinated for a week and smoked for five hours, using 40 tons of a charcoal/wood combination of hickory, maple and oak. 

 

                   No comments were received from the public.

 

WEST SENECA TOWN OFFICES          WEST SENECA ZONING BOARD

1250 Union Road                                Minutes #2007-09

West Seneca, NY   14224                   October 24, 2007

                                                            Page twelve . . . 

 

 

                   Motion by Mrs. Rosenswie, seconded by Mr. Bond, to close the public hearing and grant a variance for property located at 30 North American Drive to operate a smokehouse for salmon, conditioned on the applicants complying with all State regulations. 

 

                   Ayes:  All                Noes: None                     Motion carried

 

ADJOURNMENT:

 

                   Motion by Mr. Dunn, seconded by Mrs. Price, to close the public hearing and adjourn the meeting (8:05 pm).

 

                   Respectfully submitted,

 

 

 

                   Patricia C. DePasquale, RMC/CMC
Secretary