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West Seneca Zoning Board of Appeals Meeting Minutes 04/27/2005
The regular meeting of the Zoning Board of Appeals of the Town of West Seneca was called to order by Chairman William H. Bond on April 27, 2005 at 7:00 PM, followed by the Pledge of Allegiance. ROLL CALL: Present - William H. Bond, Chairman Daniel P. Dunn Penny K. Price Sandra Giese Rosenswie Dale J. McCabe, 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.
APPROVAL OF PROOFS OF PUBLICATION: Motion by Mrs. Price, seconded by Mrs. Rosenswie, to approve the proofs of publication and posting of legal notice.
APPROVAL OF MINUTES #2005-03: Motion by Mrs. Price, seconded by Mrs. Rosenswie, to approve Minutes #2005-03 of March 23, 2005.
NEW BUSINESS: 2004-090 Bruce Kranick, 4316 Seneca Street, stated he is requesting an extension of the variance previously granted September 22, 2004 due to financial
constrictions which prevented him from obtaining a building permit within the required time. Motion by Mr. Bond, seconded by Mr. Dunn, to grant a three month extension of the variance previously granted for property located at 4316 Seneca Street to rebuild roof and overhang and extend porch 4 ft into required side yard.
2005-05 Chairman Bond noted that 30 ft is required under the Zoning Ordinance. John Carey, 5940 Herman Hill Road, Orchard Park, appearing for applicant Marjore Szuper, stated the applicant is his mother who is 81 years of age, a widow and legally blind. He is in the process of purchasing the home at 314 Tudor and will need to erect a wheelchair ramp to accommodate her needs. He submitted photographs and plans of the proposed deck. Mr. Bond asked why the deck was being proposed for the front of the house rather than the rear. Mr. Carey responded that applicant would only have a view of the garage if the deck were to be placed at the rear of the home. Signatures of residents at 310 Tudor Boulevard and 320 Tudor Boulevard were submitted, stating no objection. Mr. Dunn noted the photographs submitted show that the proposed deck will not extend any farther than the existing walkway. Mr. Carey stated that was correct. It is their intent that the handicapped ramp cover the walkway. No comments were received from the public.
Motion by Mrs. Price, seconded by Mr. Dunn, to close the public hearing and grant a variance for property located at 314 Tudor Boulevard to erect deck in front yard 22 ft from front property line. On the question, Mr. Bond noted that the variance will not alter the character of the neighborhood and applicant presents a practical difficulty in locating the deck elsewhere on the property.
2005-006 Mr. Bond noted that the Zoning Ordinance requires a 30 ft rear yard setback and 21 additional parking spaces. George Spinaris, 8060 Cole Road, Colden, stated this is a medical office. His wife is a sole practitioner. The garage was converted into an office and there is another physician who will be practicing there. The property sits on the corner with no room for expansion. They would like to push it toward the back, keeping it low-lying in order to make it appear close to the People Inc. building directly behind it. The additional parking is required for patients coming in and out. The CEO from People Inc. has advised there is no objection to the infringement on the setback. Mr. Bond asked the number of employees. Mr. Spinaris stated there were six employees. Mrs. Rosenswie asked clarification of what was roped off in front of the building. Mr. Spinaris stated that was a planting bed with trees and grass. The building currently has a flat roof which will be replaced with a hip roof to improve the appearance of the building. Mr. Dunn asked the total number of parking spaces planned once the building renovations are complete.
Mr. Spinaris stated there will be forty some parking spaces. Mr. Czuprynski stated three parking spaces are required per examining room and office. Mr. Spinaris stated that one office will be converted into a chart room which requires 3 parking spaces, but no one will actually be occupying that room. Mr. Czuprynski noted that the survey shows 8 ft of green space and 10 ft is required under the ordinance. Mr. Spinaris reviewed the survey with the Code Enforcement Officer and stated he was unclear on the exact footage. Mr. Spinaris submitted the building plan for calculation of the required parking spaces. Mr. Czuprynski stated that time constraints would not allow him to do the calculations at this point of the meeting. Mr. Spinaris stated they are planning to add 2 offices, 4 examining rooms, and a nurse practitioner room, for a total of 7 additional rooms, with 1 room being taken away from the original building. Presently there are 8 rooms. Mrs. Rosenswie asked if the applicant would be removing the parking space in the back by the fence. Mr. Spinaris stated he will be adding spaces and moving them back to the fence area. He is looking for relief of 7 spaces. Mr. Czuprynski stated the number of spaces being requested by applicant to be eliminated is correct. No comments were received from the public. Motion by Mr. Bond, seconded by Mrs. Rosenswie, to close the public hearing and grant a variance for property located at 600 Harlem Road to reduce the required number of spaces by 7.
Motion by Mr. Bond, seconded by Mr. Dunn, to grant a variance for property located at 600 Harlem Road to reduce the required rear yard setback requirement from 30 ft to 18 ft for the erection of an addition.
2005-007 Reginald Knetsch, 1632 Orchard Park Road, stated he is requesting the 6 ft fence for privacy purposes. He submitted documentation from the Police Department on the problems he and his wife have been having with youth trespassing on his property and harassing his wife. He also submitted and reviewed with the Zoning Board members a drawing of the proposed fence and its connection to the house. The fence will run 8 ft on the side of the house. Mr. Czuprynski stated anything alongside the house, because it is an exterior side yard, must be 6 ft. Mr. Knetsch stated he has side windows and the youth in the neighborhood trespass and look in the windows. With the fence being placed as shown on the plan, the side windows would be blocked from anyone looking in. He stated he purchased the home approximately 5 years ago. Signatures of residents at 1642 Orchard Park Road and Walter J. Christ, Jr. were submitted, stating no objection. No comments were received from the public. Motion by Mr. Bond, seconded by Mrs. Price, to close the public hearing and grant a variance for property located at 1632 Orchard Park Rd to erect 6 ft high privacy fence on the exterior side yard/front property line, beginning at the rear of the front room as reflected on the plan submitted by applicant.
Mrs. Price noted she was in agreement based on the problems being experienced with youth in the neighborhood, but noted a 6 ft fence of that length is problematic to her.
2005-008 Mr. Bond noted that only one house on a lot is allowed under the ordinance. Mr. Bond also noted that Zoning Board member Sandra Geise Rosenswie would be abstaining from the vote on this matter as she is a neighbor to the applicant. Gerald Hartnett, 7461 Heinrich Road, Boston, stated his mother’s house cannot be made handicapped accessible as it currently exists. She does not want to move from the neighborhood and would like to erect a ranch home without a basement. The existing house would be occupied by applicant’s daughter. Mrs. Price asked if the existing home was a double. Mr. Hartnett stated that it was single home owned by his mother and occupied by her daughter and herself. Mr. Czuprynski stated a better option for applicant would be to attach the proposed house to the existing house and a variance would not be required. There are actually 3 subdivision lots, each 30 ft. The existing house is in violation already, but was constructed many years ago before the ordinance went into effect. Mr. Bond suggested that the house could be turned around. Mr. Hartnett stated he had been in contact with the Building Inspector to see what was feasible for the property and the proposal on the survey submitted is a suggestion only.
Mrs. Price stated the applicant’s daughter would have better access to Mrs. Hartnett if the proposed house was connected to the existing house. Motion by Mr. Dunn, seconded by Mrs. Price, to table this item until the May 25th meeting for applicant to reconsider the request as presented.
2005-009 William Martinez, 46 Westwood Drive, stated there is a cul-de-sac directly behind his property. The family uses the backyard frequently and there is currently no privacy with this property being a corner lot. They also own a dog. The fence is being requested for privacy purposes. He submitted photographs of the existing fence from different angles showing there is no obstruction to the view of motorists to the stop sign. There are already fences on the adjoining yards and the neighbor to the rear is in favor of the request since this will provide him with a privacy fence as well. The proposed fence will be installed exactly where the existing fence is now. Three different fence installers advised him that there was no need for a variance. He contacted the Building Department after purchasing $3,000 worth of fencing and was advised he did need a variance. Signatures of the adjoining residents at 128 Roycroft Drive were submitted, stating no objection. No comments were received from the public. Motion by Mr. Bond, seconded by Mrs. Rosenswie, to close the public hearing and grant a variance for property located at 46 Westwood Drive to erect a 6 ft fence projecting into the exterior side yard no closer than 11 ft from the sidewalk on the south side of the property and along the south east property line.
2005-010 Mr. Bond noted that the ordinance allows for 10% of the total surface of front allowed on the side of the building. Applicants are requesting 128 sq ft and the ordinance allows 70.4 sq ft on applicants’ building. Mary Pat Allman, 359 Potters Road, stated the proposed vinyl sign will be placed on the side of the building facing West Seneca. The sign is vinyl and will be hung with an aluminum frame bolted to the brick, and approximately 10-12 ft from the ground up. The sign would be removed in the event they moved. Mrs. Price asked if applicants intend on taking down the front sign. Ms. Allman stated they intend to keep that sign also. Mr. Dunn asked if the sign was back lit. Ms. Allman stated there is a spot light. The lights will shine down on the sign and are on a commercial timer. Signatures were submitted of Peggy Campbell and Daniel Redman, adjoining neighbors to the property, stating no objection. Mr. Bond noted the letters provided by applicants for signature did not indicate the size of the sign being requested. He asked the reason for so large of a sign and whether the applicants would be agreeable to a smaller sign. Ms. Allman stated the purpose was to create business. She stated there was a smaller sign in front of the building with the name, but the requested sign would be able to contain more detailed information on the various services offered, i.e. hairdos, manicures, pedicures, etc. and on a sign large enough to be visible to people approaching the building. Mrs. Price stated that one would have to stop a vehicle in order to read all the various services cited by applicant.
Mr. Bond noted that variances are given when there is a practical difficulty in meeting the requirements under the ordinance. The ordinance is the same for applicant as for everyone else in the town. A larger sign might bring in more business, but a smaller sign would not adversely affect applicants’ business in a manner resulting in severe economic impact. No comments were received from the public. Motion by Mr. Bond, seconded by Mrs. Rosenswie, to close the public hearing and deny the request of applicants, based on there being no practical difficulty shown in complying with the ordinance, and applicants will not sustain any severe economic impact. On the question, Mr. McCabe asked applicant if she would consider a smaller sized sign. Ms. Allman stated she would. Motion by Mr. Bond, seconded by Mrs. Rosenswie, to withdraw the previous motion, amend the application to request a 6 ft x 12 ft, 72 sq ft sign and grant a variance for property located at 359 Potters Road to install a 6 ft x 12 ft, or 72 sq ft sign.
2005-011 Eric R. Schlierf, 244 Leydecker Road, stated there is a drainage ditch that runs through both property lines. The adjoining house is 220 ft away, toward East & West Road and there is no fence on the other side. Mr. Dunn noted that there are no windows on that side of the house, which is the garage side of the home, and asked why the fence was needed all the way to the front. Mr. Schlierf stated the 6 feet is needed due to it being a large deer run. The deer can clear a 4 ft fence. He would like more of a yard with exits at the side and back, and better privacy.
Mr. Bond asked if there was fencing along the front of the property on the corner lot. Mr. Schlierf stated his wife’s grandmother lives on the corner lot and there is no fence there. Signatures of residents at 10 Valley Drive and 4 Valley Drive were submitted, stating no objection. No comments were received from the public. Motion by Mr. Bond, seconded by Mrs. Price, to close the public hearing and grant a variance for a 6 ft fence along the side yard line on the north property line, noting the hazard posed with the drainage ditch.
2005-012 William Joseph, 941 Main Street, and Al Barone, Atlantic Garages, contractor, appeared on the request for the family room on the rear of the home. Mr. Joseph stated the property is the last home on Main Street and the back yard is actually a slope that goes down to Seneca Street. There is no property on the one side and no property immediately behind his. The signature of the neighbor to the other side at 931 Main Street was submitted, stating no objection. 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 941 Main Street to erect addition to rear of existing home 13 ft from rear property line, noting the circumstances are unique with no neighbor to the rear and applicant cannot locate the addition elsewhere on the property.
2005-013 Mr. Bond stated the applicants are requesting an extension of a non-conforming use based on a loss of revenue due to the smoking ban. Thomas Brinkworth stated he is the attorney for applicants who own the property at 3373 Clinton Street and the adjoining lot to the west with 40 ft of frontage. Mr. Mager and Mr. Mack entered into a lease agreement with Mrs. Annie Werner approximately 22 years ago and ran the restaurant for about 9 years before purchasing the building and property. During that time, the applicants have been good neighbors and a letter from the West Seneca Police Department was submitted, documenting that the business has not presented that department with any excessive or unusual difficulties. The applicants have made some internal alterations, modifications and improvements, including a sub shop in one part of the building to the east of the present tavern area. Mr. Mager and Mr. Mack are attempting to prevent a loss of income due to the smoking ban. In October or November of last year, the applicants purchased the 40 ft lot to the west of 3373 Clinton Street. There is a distance of 11 ft from the west edge of their building to the west lot line. Applicants are requesting a ground level patio and use part of that property immediately to the west as driveway access. If an 11 ft patio is erected away from the building, then there could be green space. It was also proposed that green space of approximately 7, 8 or 10 ft be provided immediately west of the patio, then put up a privacy, or semi-privacy type fence with slats on one side and slats on the other side where you cannot see when looking straight on. The driveway would be placed on the outside of that fence and the driveway would run back to the existing parking lot and then have green space the rest of the way. That would allow for green space inside the patio area and also between the driveway and the next adjoining property. Mr. Bond asked how much loss of business has been experienced by the applicants since the smoking ban was put into effect. Mr. Mager stated their loss of business was approximately 12% to 15% on liquor sales. Mr. Bond asked if this patio was going to be enclosed.
Mr. Brinkworth stated there would be an awning over part of the patio but at the far front area there would be an open area provided for smoking. Mr. Czuprynski stated the Board may be under the misconception of the term enclosed as it is listed on the application. There is a 6 ft fence going around the proposed patio which is what the applicants are referring to as “enclosed”, but there is no roof, only an awning over part of the patio. It is not enclosed in the sense of a wall. Mr. Brinkworth also noted the mixture of homes and businesses in this area of Clinton Street between Harlem and Union, including a collision shop within 100 ft of this business and Majeski florist, as well as agricultural land and another tavern farther down Clinton Street. The town’s zoning went into effect in approximately 1965 but this particular business has been in operation for a lengthy period of time prior to then. Mr. Bond asked if there was an estimation of the percentage of extension to the existing building. Mr. Brinkworth stated the existing building is irregular and 52 feet by 78 feet across which converts to approximately 3800 square feet, plus an additional portion of 500-600 square feet, for a total of about 4300 square feet. Mr. Bond noted the proposed patio would then be an approximate 15% extension to the existing building. He asked why the patio was proposed for the side of the building and not at the back. Mr. Brinkworth stated when originally purchased, the rear of the building was used as storage space. Since then, the applicants have put in a kitchen area and banquet area. In order to get back to a patio area in the back, the patron would have to go through the entire dining room and banquet room. In addition to putting in the patio, the inside would have to be reconfigured which would be cost prohibitive. Mr. Bond noted there is a door in the back and if the patio were positioned to the rear of the building, another door would have to be installed. Mrs. Price asked if there would be a door leading to the proposed patio.
Mr. Mager stated there would be a 36 inch egress door between the bar and the restaurant which would allow the patron to exit without going through the dining room. Mr. Dunn asked how many tables were planned for the deck in the non-smoking area. Mr. Mager stated there would be 3 tables with umbrellas in the smoking area, with 4 or 5 tables in the dining area, depending on the fit. Mr. Dunn asked the Code Enforcement Officer if there would be an adequate number of parking spaces with the addition of a patio. Mr. Czuprynski stated he could not answer that question, but there was adequate land in the rear of the property. Mrs. Price asked applicants if there would be any outside music. Mr. Mack stated there would be no outside music. The patio will close at 11:00 p.m. and there will be a berm placed to the west at the property line with trees for a sound barrier. Additionally, instead of a 6 ft fence around the perimeter of the patio, a 4 ft fence is proposed and then run a 6 ft privacy fence from the applicants’ property line back, in order to defuse the noise and accommodate Mr. Doster. Mr. Brinkworth stated the adjoining neighbor is approximately 61 ft from the present west edge of the building. Paul Rudnicki, attorney for Brian and Wendy Doster, property owners of 3361 Clinton Street, stated that attached to his statement in opposition to the requested variance, was with a letter from Robert Pinnavaia dated November 18, 2004 stating that the proper remedy in this situation is a zoning change, not as a matter before the Zoning Board of Appeals. There was a rezoning application made in Planning Board matter #2004-09, and at that time Mr. Mager expressly stated that a rezoning was required. Mr. Czuprynski stated this matter did come before the Town Board but they could not rezone the property because it abuts a residential district and serving of alcoholic beverages is not allowed in a C-2 district which abuts a residential district. The Town Board’s hands were tied in this
matter since it could not rezone the piece of property, or the Planning Board would not send it forward because of that. Mr. Rudnicki stated he was aware of that, but that is the purpose of a zoning ordinance and it is the position of Mr. and Mrs. Doster that applicants are trying to get around the ordinance. Assuming that this body has jurisdiction, there is a question of hardship due to the smoking ban. In this case, the appellants have not exhausted their administrative remedies. The Erie County Health Code sets forth the procedure whereby a waiver to the smoking ban is allowed. Mr. Rudnicki cited two establishments in Western New York that have received waivers. If appellants apply and receive a waiver, the argument is moot because the smoking ban no longer applies. At this time, the application is premature and the only hardship is one that they have created because of their failure to apply. Mr. Rudnicki stated this is a zoning matter and the application at this time is premature because if applicants do in fact apply, which is a remedy available under the Erie County Health Code and are granted a waiver, this entire appeal then becomes moot. Brian Doster, 3361 Clinton Street, stated he is the adjoining property owner and submitted a petition with 24 signatures in opposition to the patio. Mr. Bond questioned why signatures were obtained from residents on Indian Church Road. Mr. Doster responded that they are part of the immediate neighborhood. The back of their properties are across the creek from Mackie’s and there is no buffer inbetween. Mrs. Price noted the petition is against a zoning change. Mr. Doster stated the patio is part of it. The petition was obtained last year at the time this matter was before the Planning Board and additional signatures were obtained since then. He stated he and his wife are concerned with the quality of life in the neighborhood and the noise which this patio will produce. They were aware this was a tavern when they purchased their property but the applicants are changing the whole dynamics of what they are doing and how they are operating their business. It is zoned residential. The zoning is in place and is working by
keeping this type of business from expanding out. Mr. Doster read a letter from Cindy Jacobs, a neighbor on Clinton Street near Vinnie’s, approximately a quarter mile away, complaining of the noise emanating from Vinnie’s and numerous other problems associated with the tavern which has interfered with the quality of their family life. It was his position that if a variance was granted, what the applicants claim as a hardship will result in a hardship to the neighborhood, and did not feel that this process should create a hardship for someone else. Wendy Doster, 3361 Clinton Street, stated they have two daughters, ages 4 and 7. She was concerned for herself and her family. They have lived in their home for ten years and have co-existed with applicants. If this patio is allowed, there will be privacy and safety issues as a result. All the bedrooms are on the side of the house facing the proposed patio and she was fearful that the smoke from the patio would come into their house during the summer time. Mr. Brinkworth stated that the establishment referred to as Vinnie’s has a patio bar. The applicants are not proposing a patio bar; rather a seating area which will not be occupied after 11:00 p.m. and will not have outside music. It will be run in the same professional manner as Mr. Mack and Mager have operated their business during the past 22 years. Applicants have agreed to a privacy fence and a berm. They contacted Dan Majeski florists and were advised that the planting of arber vite would act as noise barriers. He disagreed with the argument of Mrs. Doster on the issue of smoke traveling inside her home which is 60 plus feet away. The prevailing winds come from the south west and the wind would have to blow from the north east to affect that residence. Mr. Rudnicki asked if an application has been made to the Erie County Health Department for a waiver of the smoking ban. Mr. Brinkworth stated an application has not been made. Brian Doster stated that bars can be open until 4:00 in the morning and patrons will go outside to smoke. Mr. Bond stated that the patio will be closed after 11:00 p.m.
Mr. Mager stated the patrons will go out front of the tavern to smoke after 11:00 p.m. Mr. Doster stated they have been friends for 23 years but was concerned in the event the tavern was sold at some time in the future. Mr. Bond stated that if the property was sold, the new owners would have to apply to the proper authorities for music. Mr. Czuprynski stated any stipulations placed on this variance would follow the property and no matter who buys the property, the patio could not be used after 11:00. If the board stipulated that no music was allowed, that follows the property also. The new owners would have to appear before this board for any change to the stipulations. Mr. Bond was concerned that any new owners would not be made aware of the stipulations prior to purchasing the property and suggested a deed restriction to remedy that possibility. Mr. Doster also noted that his property drops down with a 3 ft difference between where the patio is proposed and his property, and felt a 4 ft fence then becomes 1 ft and a 6 ft fence then become 3 ft. Mr. Brinkworth disagreed, based on the drop. A 6 ft fence would actually be more of a 9 ft fence based on that argument. Mr. Doster responded that the patio can still be viewed from his second story windows. The business property is zoned residential which was known by the applicants at the time of purchase. The dynamics of the business have changed and there is no guarantee that it will run smoothly, or that the barriers will keep the noise down. He felt the noise and drinking of alcohol on the patio would severely impair their ability to enjoy their property next door. To expose people in a residential district who are abiding by the rules and have invested money in their property is unfair. The applicants have the option to move their business, take their clientele with them, and sell the existing business to someone else who can run the tavern the way it is.
Mr. Brinkworth responded that the property was for sale for 4 years prior to the applicants purchasing it. Mr. Doster had the opportunity to purchase the property himself. Motion by Mr. Bond to close the public hearing and grant the variance. Motion failed for lack of second. Motion by Mr. Bond, seconded by Mrs. Price, to reserve decision until the close of the meeting, noting that the law requires that public hearings be open to the public but there can be an executive session to discuss this issue. A decision will be made either following the board’s opportunity to discuss the request for a variance this evening, or at a later date, and in either event, a written decision will be issued, stating the reasons either for or against a variance.
2005-014 Mr. Bond noted the irregularity of the lot with no other place to locate the garage. The town code requires a 10 ft separation between the house and garage as opposed to 5 ft as provided by applicant; applicant is also requesting the garage to be 4 ft from the side property line as opposed to the 5 ft required under the town code. Ronald Sikorski, 179 Dover Drive, stated the garage is 20 ft x 20 ft and there is no other location for the garage on this lot. The signature of the adjoining resident at 175 Dover Drive was submitted, stating no objection. No comments were received from the public. Mr. Czuprynski stated that the closer applicant comes to the house will determine how much fire separation is required. He may need to provide a firewall between the house and garage.
Motion by Mrs. Price, seconded by Mr. Dunn, to close the public hearing and grant a variance for property located at 179 Dover Drive to erect 20 ft x 20 ft detached garage in side yard 5 ft from house and 4 ft from side property line, noting the hardship of applicant in locating the garage anywhere else on the property due to its irregularity.
2005-015 Roger J. Peck, Jr., 46 Cedar Ridge Drive, stated he is requesting an 8 ft fence in order to block the sight lines of some businesses on Transit Road. He lives on Cedar Ridge and his lot extends back to Dyke Road. He has had problems with young people drinking and building bonfires, leaving his property a mess. There is also a pond on the property which was originally part of the tennis bubble. The pond was there when he purchased the property. Mr. Dunn stated he did not understand the need for an 8 ft high fence. Mr. Peck stated the extra 2 ft is being requested for privacy. No comments were received from the public. Motion by Mrs. Rosenswie, seconded by Mr. Bond, to close the public hearing and deny the request for a variance for property located at 44 Dyke Road/46 Cedar Ridge Dr to erect 8 ft high fence without a principle building, noting that the applicant failed to demonstrate a hardship sufficient to meet the need for a fence of that height.
2005-016 Ronald Fortin, 99 Klas Avenue, stated he is requesting a 5 ft chain link fence in order to contain his two Rottweiler dogs.
Mrs. Price asked if the proposed fence would be hooked up to the existing fence. Mr. Fortin reviewed the survey and the location of the proposed fence with the board members. The board discussed several variations of size and positioning of the fence. Motion by Mr. Dunn, seconded by Mrs. Price, to close the public hearing and deny the request for a variance for property located at 99 Klas Avenue to erect 5 ft high fence in side yard based on the failure of applicant to demonstate a hardship, noting that any hardship was self-imposed by applicant. Further, there was no practical difficulty in applicant abidding by the ordinance and the requested fencing would cut off a substantial amount of property by its extension to the front of the property.
The Zoning Board of Appeals recessed to discuss Item #2005-13. Mr. Bond stated that the Zoning Board members met in executive session to discuss this issue and the arguments of all parties. Motion by Mr. Bond, seconded by Mrs. Rosenswie, to close the public hearing and grant variances as follow: 1. Allowing the use of the area on the west side of the property for the purpose of an outside enclosed patio, 12 ft x 54 ft in size, with an 18 ft wide driveway in a residential district, with the following stipulations: A. The patio be closed and locked at 11:00 p.m. B. No outside music is allowed. C. A privacy fence, or semi-privacy type fence as described by applicants’ attorney, is to be installed adjoining the residential property, in a manner set forth by the applicants’ attorney. The driveway will be placed on the outside of that fence and run back to the existing parking lot with green space the rest of the way, allowing for green space inside the patio area and also between the driveway and the next adjoining property. There will be a berm with arbor
D. The applicants, through their attorney, will sign and file a restrictive covenant, putting the restrictions on record for any future purchaser of the property. Mr. Bond stated the variances are being granted based on the following reasons: 1. It is clear from the evidence presented that the petitioners, if forced to maintain the business in its current dimensions and not allowed to expand, cannot realize a reasonable return as the property as presently zoned. The situation is unique to their particular property as opposed to a situation that is the same for every piece of property in that area. 2. The scope of the request was relatively miniscule in the sense that a 500 ft expansion is requested on a 40,000 ft building. 3. There is no showing of an overriding community interest in keeping the property in its present boundaries. The petition presented was against a rezoning which is entirely different than the request before this Board. A rezoning would change the actual use of the property from a zoning standpoint and would be a permanent change, whereas a variance runs with a particular property and the particular use which is currently nonconforming. The use of the property will remain as a tavern and cannot be used for any other purpose. It is not a question of applicants gaining a greater enjoyment of the property as it currently exists, but rather to stall off a significant economic injury. 4. The variances will not change the essential character of the locality and will not have a serious adverse affect on the neighborhood and will not affect public health and safety. 5. This is an existing business and has had a good record of operation as a restaurant for over 20 years without trouble.
ADJOURNMENT: Motion by Mr. Bond, seconded by Mr. Dunn, to close the public hearing and adjourn the meeting (10:00 p.m.). Respectfully submitted, Patricia C. Wisniewski, RMC/CMC |
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