02/27/2008 Zoning Board of Appeals Meeting Minutes, Town of West Seneca, New York, USA

WEST SENECA TOWN OFFICES		ZONING BOARD OF APPEALS
1250 Union Road		Minutes #2008-02
West Seneca, NY 14224		February 27, 2008

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 February 27, 2008 at 7:00 PM, followed by the Pledge of Allegiance.

ROLL CALL: Present -

Excused - None

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

Motion by Mr. Hughes, seconded by Mrs. Price, to approve Minutes #2008-01, January 23, 2008.

2008-003
Request of Lorri Staufenberger for a variance for property located at 3480 Seneca Street to add shed roof to side of existing garage.

Lorri Staufenberger and Ronald Staufenberger appeared on the request for a variance. Mr. Staufenberger stated the structure is an existing carport for storage of a boat and snow blower. He stated that originally it was just a lean-to, but then the sides were closed to prevent wind and snow damage. Mrs. Staufenberger stated the property was purchased in a foreclosure and the former owners caused damage to the house. She was unaware of the different permits needed when it came time to work on the house.

Mr. Bond cautioned that if a question arises, to call the Code Enforcement Officer. Mr. Bond asked Mr. Czuprynski for clarification on the percentage allowed for an increase in a nonconforming use.

Mr. Czuprynski responded that the applicant’s project represents more than a 25% increase in the non-conforming use and requires a variance.

Mr. Dunn asked if the concrete block garage has been in existence for some time.

Mr. Staufenberger stated it was existing and has been there for some time. It was originally his intention to tear that down too, but then decided just to put the roof on.

Mr. Bond noted that a permit would be required if the applicant did decide to tear down the garage and setbacks would have to be taken into consideration. Letters of no objection from residents at 24 Newell and 3488 Seneca Street were submitted.

Motion by Mrs. Rosenswie, seconded by Mrs. Price, to close the public hearing and grant a variance for property located at 3480 Seneca Street to add shed roof to side of existing garage.

2008-004
Request of Peter A. Gemmati for a variance for property located at 1300 Center Road to maintain 20 ft x 45 ft front parking area without green area at street.

Peter Gemmati, 5 Chisholm Trail, Orchard Park, stated he is the property owner of 1300 Center Road. This is an apartment building with five elderly residents who require handicapped parking. Currently he has made the front part for handicapped parking. There is only one entrance in the center of the rear of the building which makes it unsafe for them to walk across the parking lot. Some of the residents use walkers or are on oxygen. When the parking lot was done five years ago, he and the installer were unaware that a permit was required. The front was extended with the installation of three parking handicapped spaces in front and two at the back door. There are 12 units in the building and he lost three spaces with the installation of handicapped spots which need an extra 3 ft. There are 14 parking spots for 18 cars.

Mr. Gemmati stated that it is straight out and flat at the back door. The front has 3 steps. Tenants can walk the 3 steps without too much difficulty and those apartments are in the front of the building, as opposed to parking in the rear, walking 30 ft through the building and up 4 steps and another 7 to get to their apartment.

Mr. Bond asked if this apartment building was designated for handicapped tenants, or that the applicant just happened to have that many.

Mr. Gemmati responded that he just happened to have that many handicapped tenants. Some of the tenants have lived there for over 27 years, are elderly, and do not want to move.

Mr. Czuprynski confirmed that the property is zoned R60-A. No parking is allowed in the required front setback. If applicant rezoned this to commercial, then parking in front would be allowed with a 10 ft green area. The survey shows a bump-out on the survey.

Mr. Gemmati explained that the bump-outs referred to are second and third floor balconies. The door is on the building, not at the front of the walk-outs.

Mr. Dunn asked if the parking spaces are designated strictly for handicapped parking.

Mr. Gammati responded that he did not have any. The tenants would have come this evening but they are elderly. He only received his letter a week ago and was unable to obtain letters as requested. There is a field and an empty parking lot on one side of his property with another building on the other side. He referred to another apartment building across the street which has parking in front and on the side, and there are other multiple dwellings on Center Road that have parking in front.

Mr. Czuprynski suggested that in the event these handicapped tenants move out at some time in the future, that the handicapped parking be removed. The spaces in the front are designed for handicapped people and they would no longer be necessary if the tenants moved out.

Mr. Gemmati felt this was unreasonable. He has lost 4 parking spaces in the rear in order to put in the handicapped spaces there.

Mr. Hughes stated the request for a variance is based on a hardship and in the event those tenants move there, the hardship no longer exists and the town could request that the parking in front be removed.

Mr. Gemmati agreed, and stated he would do so in that event, unless other handicapped people moved in.

Motion by Mr. Dunn, seconded by Mrs. Price, to close the public hearing and grant a variance for property located at 1300 Center Road to maintain 20 ft x 45 ft front parking area without green area at street, with the stipulation that those spaces remain designated for handicapped parking only, and when no longer needed shall cease to exist, and that the applicant provide the letters from adjoining neighbors as requested in the notice for this meeting.

2008-005
Request of Jennifer Iwankow for a variance for property located at 16 Brook Lane to erect deck 5 ft from house (10 ft required).

Jennifer Iwankow and Christopher Iwankow, 16 Brook Lane, appeared on the request for a variance. They would like to build a maintenance free deck within the 10 ft required from the back of the house. The wind storm in January caused the attached aluminum deck to be blown into their Ester Williams pool. The

insurance company and Gary’s Pool both came to inspect the damage and recommended that the deck be put on the opposite side of the pool in the event of future winds. Rather than an aluminum deck, they would prefer a maintenance free deck.

Mr. Bond noted the variance is for the distance to the house. 10 ft is required and the applicants are requesting this to be reduced to 5 ft. He asked for clarification on why the 5 ft was necessary.

Mr. Iwankow stated when they built the pool, the deck was toward the back side. Now that the deck has been destroyed, it was recommended that it be put on the other side, so the pool has to be moved back. The deck will be a littler larger, 12 ft wide.

Mr. Iwankow stated there is a concrete pad there, as well as a Rainbow swing set system and there is no other place to put the deck. The deck will be approximately 7 ft from the back of the house so it would not be attached to the house. It would be no closer than 5 ft. The deck would be 12 ft from the edge of the pool back. The pool is 24 ft round.

Mr. Bond asked the Code Enforcement Officer the distance required from the rear lot line.

Mr. Czuprynski responded that it had to be 3 ft from the rear lot line, unless there’s an easement.

Mr. Bond noted that the pool could be up against the easement, as long as it is not within power lines.

Mr. Bond noted if the variance is granted, then there is no incentive to comply. He stated his preference for applicant to either attempt to comply, or grant a variance for 7 ft. Then if the applicants required a greater distance after having more specific measurements taken, they could return to the Zoning Board. The purpose for the required 10 ft distance is so firefighters can get in between buildings in case of an emergency. In this case, this will not be on the side where the firemen would have difficulty in getting through, but they like to afford them as much room as possible. Letters of no objection were submitted from residents at 12 Brook Lane and 16 Brook Lane. He also noted that applicants need to have a lock on the deck.

Motion by Mr. Bond, seconded by Mr. Dunn, to close the public hearing and grant a variance for property located at 16 Brook Lane to erect deck 7 ft from house, rather than the 10 ft as required by the ordinance.

2008-006
Request of Henry J. Lubkowski for a variance for property located at 369 Union Road to erect roof of accessory structure higher than allowed.

Henry Lubkowski, 168 Borden Road, Depew, stated he obtained a building permit for the house but did not realize he needed one for the garage. The roof was rotted and torn down. Instead of making a gable roof, it was reconfigured. According to the town code, the garage is attached so he should be allowed to go the same height as the house. The Building Inspector said it was not attached.

Mr. Bond referred to the survey which does not show the garage as being attached. The survey shows 3.76 ft between.

Mr. Czuprynski asked if there was a foundation under the garage, 42 inches deep.

Mr. Lubkowski responded that there is a foundation, but they didn’t dig that deep.

Mr. Czuprynski stated it has to be 42 inches deep and cannot be considered attached to the house unless it is 42 inches deep. Otherwise, it could move independently.

Mr. Bond noted it is attached by a roof, but the footers are separate for the garage and the house.

Mr. Dunn noted that when footers are two different depths, they can shift differently and this garage cannot be considered attached.

Mr. Bond also noted that the applicant submitted a letter to his neighbors but there are no responses.

Mr. Lubkowski stated the lady from the north side came over and had no problem with the proposal. The lady from the south side did not come over.

Mr. Czuprynski noted that Mr. Lubkowski is a contractor and raised the entire roof off the back part of the garage. He asked Mr. Lubkowski why he didn’t apply for a building permit for the garage.

Mr. Lubkowski stated the back of the garage roof was rotted, so he was just going to renovate it. A foundation was not poured. He was not aware a permit was needed since he had a remodeling permit for the house.

Mr. Lubkowski responded that a ladder and garden tools were stored there and there is an opening inside the garage to put in a folding stair but one is not planned.

Mr. Lubkowski presented the plans for the Zoning Board members and Mr. Czuprynski to review. Mr. Bond noted that it appears the applicant needs 12.6 ft.

Mr. Dunn asked if there were utilities, water and electric, above the garage and if it was intended for use as a living space.

Mr. Lubkowski stated there was only a light bulb and it would not be used as living quarters.

Mr. Pinnavaia asked if the Zoning Board is considering this an attached or unattached garage.

Mr. Bond responded that there is nothing before the Zoning Board to determine whether or not it is a separate structure. The issue before the Board tonight is the applicant’s request for the 12.6 ft height. The other items must be determined and he may have to return.

Motion by Mr. Dunn, seconded by Mrs. Rosenswie, to close the public hearing and grant a 6 inch variance for property located at 369 Union Road to erect roof of accessory structure higher than allowed.

2008-007
Request of Ralph Lorigo Law Firm for an interpretation of Code Enforcement Officer's Decision with regard to property located at 162 Slade Avenue.

Ralph Lorigo, Esq., 101 Slade Avenue, appeared on behalf of 1238 Group LLC, which is a subsidiary of Ellicott Development Company, owners of the property. The Building Inspector has made an interpretation, based on town code, of what a hotel is and what a dwelling is. A dwelling unit is defined as “one or more rooms designed for occupancy by one family for cooking, living and speeping purposes.” The code defines hotel as “a building containing sleeping rooms and in which lodging is provided primarily for transient guests for compensation and which may include public dining facilities.” The issue to be decided is whether or not what they are calling a “suite hotel”, a hotel that actually has cooking facilities in each room, is a dwelling unit or a hotel. Section 310.1 of the New York State Bulding Code refers to “residential occupancies where the occupants are primarily transient in nature, including boarding houses, hotel, motels ..” The town’s own codes defines a “hotel” as “primarily for transient guests.” The problem here is the definition of dwelling. The town codes says dwelling is “one or more rooms designed for occupancy by one family for cooking, living and sleeping purposes.” The State definition states “residential occupanicies where the occupants are primarily permanent in nature,” making the distinction of primarily permanent in nature and primarily transient in nature. The town does use the term “primarily transient” in its definition of hotels but does not use the term “primarily permanent” in its definition of dwelling unit. Words such as, “designed for occupancy by one family for cooking, living” are used and it was his contention that that interpretation is what the State refers to as “primarily permanent in nature.” It is also true that Wendel Engineering and the Town Attorney agree with that interpretation, that the suite hotel is primarily transient in nature and the fact that there is cooking facilities in each unit does not make it a dwelling unit, which by definition under State Code is primarily permanent in nature.

Mr. Bond cited the following passage from the Town Attorney memo: “In room cooking facilities in a hotel suite or room are irrelevant so long as they do not transform the ‘lodging provided primarily for transient guest for compensation’ aspect to the building’s operation and purpose” and asked if that was the factor here.

Mr. Czuprynski referred to the definition of a dwelling unit and a single dwelling house containing one building unit. A dwelling unit is used for one or more families but not including a building of mixed occupancy. A multifamily dwelling is defined as, “a building containing three or more dwelling units”.

Mr. Bond noted that the Code Enforcement Officer is saying it is a multiple dwelling. Mr. Lorigo is claiming that it is a hotel.

Mr. Lorigo stated that the Town code does incorporate the State code. Mr. Czuprynski is the interpretor of first impression. One of the purposes of the Zoning Board of Appeals is clarification. What makes a hotel a suite hotel is that it is has larger units and has cooking facilities. This is called the Staybridge Hotel with 105 rooms, all of which are suites.

Mr. Lorigo stated he spoke with the Cheektowaga Zoning Officer who indicated the term extended stay is included in their code.

Mr. Bond stated that perhaps the town code should be amended to include extended stay but that is not what we have now.

Mrs. Rosenswie asked what would prevent these suites becoming a permanent apartment building in the future.

Mr. Pinnavaia stated that Mr. Lorigo is stressing the word “transient”. His department is basing their interpretation on the word “cooking”.

Mr. Bond commented that the Code Enforcement Officer is classifying this as a multiple dwelling based on the fact that there are cooking facilities. If there were not cooking facilities, it would be classified as a hotel. The kitchen is what places this in a multiple dwelling classification. Mr. Lorigo’s position is that it depends on whether it is used as a transient use or a permanent use.

Mr. Lorigo added that the town codes refers to that. It says a hotel is for transient purpose. The term dwelling unit does not refer to permanent, but argued that it has to interpret the words occupancy and living. The State code clearly makes that differentiation.

Mr. Bond stated the issue for the Board to determine, under the Town of West Seneca code, is whether this is a dwelling unit or a hotel.

Mr. Lorigo stated this is a suite hotel. People can stay a night or a couple nights. He stated there is no intention on the part of Ellicott Development to put apartments there. This is simply a different type of hotel.

Mr. Bond asked Mr. Lorigo to clarify the point when a “transient hotel” use becomes a permanent occupancy.

Mr. Lorigo responded that would occur when the rooms are rented by the month which is historically what the town’s definition is of a multiple dwelling.

Mr. Dunn stated he has reviewed all the information presented, including the town code which was written in 1963 when hotel rooms were just that, and he has been to hotel rooms which have kitchen facilities. That type of hotel has been in existence for some time.

Mr. Lorigo responded that one solution is to do that, so that it has to maintain itself as a hotel, but then this Board would have to carve a definition when the State code is clear and up-to-date.

Mr. Bond stated a condition can be placed on the property, that it only be used for transient in nature, but then the question arises if it is being used as a hotel and petitioner could be back before this Board in six months.

Mr. Lorigo responded that his request is for the Board to interpret the town code in its definition of a hotel being a structure that has rooms that are primarily transient in nature, and to interpret a dwelling unit as a unit that is primarily permanent in nature. That will provide a solution to the issue.

Mr. Czuprynski referred to the definition of dwelling unit under the town code, “one or more rooms designed for occupancy by one family for cooking, living and sleeping purposes.” He stated that the state code is a building code; this is a zoning ordinance.

Mr. Bond requested the Deputy Town Attorney to approach the Town Board on clarifying this issue.

Mr. Notaro stated the Town has been slowing updating the code over the past couple years. This is not the only issue needing to be addressed.

Mr. Lorigo stated it is the responsibility of the Zoning Board of Appeals to interpret the code, and noted much of the code goes back to the 1960’s.

Mr. Bond noted that the Zoning Board of Appeals must either overturn the interpretation of the Code Enforcement office, or uphold it. If it is not overturned, then the structure will be considered a multiple dwelling.

Dale Clarke, 379 Indian Church Road, felt the Zoning Board should base its decision on what the code says now, and then the Town Board can make any necessary changes to the code at a later date.

Mrs. Rosenswie asked if this Board is, in effect, making policy in the event it overturns the interpretation of the Code Enfocement Officer.

Mr. Notaro stated if the Board overrules the Code Enforcement Officer’s interpretation, it simply means that in this particular situation, for this applicant and for this plan, the Board is of the opinion that it is a hotel and not a multiple family dwelling. It does not mean there is a policy change or a change to the ordinance. The job of the Code Enforcement Officer is then to ensure that the petitioner complies with the decision of this Board.

Motion by Mrs. Rosenswie, seconded by Mr. Bond, to close the public hearing and uphold the interpretation of the Code Enforcement Officer that the building on property located at 162 Slade Avenue should be classified as a multiple dwelling.

Motion by Mr. Hughes, seconded by Mr. Dunn, to close the public hearing and overturn the interpretation of the Code Enforcement Officer that the building on property located at 162 Slade Avenue should be classified as a multiple dwelling; the Zoning Board of Appeals classifies it as a hotel.

On the question, Mrs. Price stated it was her opinion that this was a hotel. She has seen similar type hotels across the country and is aware of the type of hotel referred to at tonight’s meeting.

On the question, Mrs. Rosenswie stated if done this way, another applicant can come before this Board and receive a different answer.

Motion by Mrs. Rosenswie, seconded by Mr. Hughes, to close the public hearing and adjourn the meeting (8:25 p.m.).

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West Seneca Zoning Board of Appeals Meeting Minutes 02/27/2008

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