03/26/2008 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 #2008-03
West Seneca, NY 14224		March 26, 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 March 26, 2008 at 7:00 PM, followed by the Pledge of Allegiance.

ROLL CALL: Present -

Excused - None

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

Motion by Mrs. Rosenswie, seconded by Mrs. Price, to approve Minutes #2008-02, February 27, 2008.

2007-057
Request of Denise Peacock for a variance for property located at 344 Bullis Road to erect second principle building and demolish existing one after new building is completed.

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

Mr. Bond stated this item had been before the Board last year and was tabled because the applicant did not anticipate starting the new home until now, and a variance is only good for 6 months.

Denise Peacock, 1537 Union Road, and Dean Sorrentino, 1537 Union Road, appeared on the request of Ms. Peacock to build a new home for her parents at 344 Bullis Road. Upon completion of the new home and the certificate of occupancy being issued, the existing house in which her parents now reside will be demolished. The new house will have an in-law suite for her parents. The garage will also be demolished. Her parents have lived in the existing house for 40 years and are elderly.

Motion by Mr. Hughes, seconded by Mrs. Rosenswie, to close the public hearing and grant a variance for property located at 344 Bullis Road to erect second principle building and demolish existing one after new building is completed.

2008-008
Request of Thomas Mades for a variance for property located at 236 Allendale Road to allow housing of overweight vehicle in the open.

Thomas Mades, 236 Allendale Road, stated he has two commercial ex-military vehicles in his driveway of his property. The vehicles are used for parades and various events and he would like to keep them in the driveway of his property. They both exceed the capacity for his zoning and submitted letters of no objection from residents at 243 Allendale, 225 Allendale, 218 Allendale, 244 Allendale, and 235 Allendale Road.

Mr. Mades stated they were both registered as commercial vehicles and insured. The option does not exist to store them elsewhere. One is a pickup truck and the other is a larger truck. They cannot be registered as passenger vehicles in New York State. There are for-sale signs on the vehicles because he was unsure what will occur today.

Mr. Hughes noted that if the applicant moved elsewhere, he would have the same problem.

Mr. Mades stated he had a vested interest in West Seneca and planned to stay on the property long-term. He stated the trucks were only used during the daylight hours.

Mr. Mades stated he had exhausted the possibility of storing them at another location due to the nature of their use and noted he has limited income.

Mr. Bond stated he saw no hardship on the part of applicant that was unique when compared to other residents in the Town of West

Seneca who own commercial vehicles which have to be stored off their residential property. Allendale is a residential area. It may cost the applicant money to store the vehicles elsewhere.

Mr. Mades stated there are a number of other residents on Allendale which have oversized vehicles.

Mr. Bond stated that those situations would need to be brought to the attention of the Code Enforcement Officer.

Mr. Czuprynski stated anything in excess of one half ton capacity is considered commercial and cannot be parked in an area that is zoned residential.

Mr. Harmon asked if the applicant had made inquiries on other locations to store the vehicles, such as Colonial Storage. Outside storage is less expensive than indoor storage and he may be able to store the vehicles at a storage facility.

Mr. Mades stated he has contacted multiple storage facilities but there have been issues with the trucks or the pavement. He is also attending school fulltime and has limited finances.

Motion by Mrs. Rosenswie to close the public hearing and grant a variance for property located at 236 Allendale Road to allow housing of overweight vehicle in the open, noting that the applicant has exhaused all other alternatives.

Motion by Mr. Bond, seconded by Mrs. Price, to close the public hearing and deny the request for a variance for property located at 236 Allendale Road to allow housing of two (2) overweight vehicles in the open.

On the question, Mr. Bond commented that he saw no unique hardship on the part of applicant.

2008-009
Request of Dean Judy for a variance for property located at 16 Country Lane to erect 6 ft fence in exterior side yard (not allowed).

Dean Judy and Dawn Judy, 16 Country Lane, appeared on the request for a variance. Mr. Judy stated their house is on a corner lot and they are requesting a fence in the back yard and along part of the side of the house.

Mr. Bond noted that the drawing does not show how far back from the property line the variance is requested. He asked if 20 ft from the property line was an accurate measurement.

Mrs. Price commented that the applicant needs to place a number on their house so that it can be located in case of an emergency.

Mr. Hughes questioned the reasoning for a 4 ft high fence that graduated into a 6 ft high fence.

Mr. Judy stated they didn’t want total blockage around the corner. The fence is 4 ft and then goes up to 6 ft as it reaches the back. Letters of no objection were submitted from 13 Country Lane, 25 Country Lane, 31 Country Lane and the neighbor to the rear.

Mrs. Judy stated the neighbors who signed the letters are aware of the height and in fact the fence will be hooked up to the fence of the neighbor in the rear.

Motion by Mrs. Price, seconded by Mr. Bond, to close the public hearing and grant a variance for property located at 16 Country Lane to erect 6 ft fence in exterior side yard, 20 ft from the property line.

2008-010
Request of James Hawco for a variance for property located at 1486 Center Road to extend living area by enclosing front porch deck 24 ft from front property line (40 ft front setback required).

James Hawco, 1486 Center Road, stated the porch needs to be replaced due to damage done by the weather. He is doing some home improvements and would like to make the porch part of the living space since there is already a permanent foundation under the porch.

Mr. Hawco responded the reason he wanted it in the front was because of the foundation is already there. Instead of rebuilding the porch, it will become part of the living space.

Mr. Hawco stated the addition would come out no farther than the existing porch. Letters of no objection were submitted from residents at 1490 and 1474 Center Road, the immediate neighbors to the left and right of the property.

Motion by Mr. Harmon, seconded by Mr. Hughes, to close the public hearing and grant a variance for property located at 1486 Center Road to extend living area by enclosing front porch deck no farther than 24 ft from front property line.

2008-011
Request of Stephanie Droney for a variance for property located at 2185 Clinton Street for a reduction in the required parking spaces.

Stephanie Droney, 68 Knox Avenue, stated she is interested in purchasing the property at 2185 Clinton for a full service beauty salon. The purchase is contingent upon receiving the requested variance. The applicants plan on 6 stations for 3 employees. The hours are 9:30 to 8:00 and there will only be 3 people on at one time, including her. Eventually, she would like to have 6 people working, 5 employees and herself.

Mr. Bond stated there is nothing in the plan to say the applicant cannot increase the work stations to 6 with additional employees in the future. He asked what was behind the building that would prevent the applicant from putting parking in that area.

Ms. Droney stated there is an NFTA bus turnaround and then behind that is a residential backyard. There is some parking in the back but she has spoken with the Church and a business for additional parking.

Ms. Droney stated there will be no changes to the exterior. Currently, there is a shed at the rear of the building at one of the handicapped spots and that shed will be taken down. That is where the handicapped loading area is. The entire building is handicapped accessible.

Mr. Bond stated he did not understand why 6 stations were necessary if the applicant only intended on using 3 stations at a time.

Ms. Droney responded that these are renters, not employees. Each person has their own supplies and wants to keep them at their own station. They do not want someone else also working at their station.

Mr. Notaro stated the Board could add a stipulation for the number of stations which would have to be enforced by the Code Enforcement Officer.

Mr. Bond stated he would like to see it limited to no more than 4 stations operating at one time.

Letters of no objection were submitted from 7-C’s Catering Service, Macedonian and 2185 Clinton Street.

Motion by Mrs. Price, seconded by Mr. Harmon, to close the public hearing and grant a variance for property located at 2185 Clinton Street for a reduction in the required parking spaces, with the stipulation that there is no more than 4 active working stations at any one time.

2008-012
Request of Reginald Knetsch for a variance for property located at 1632 Orchard Park Road to allow above ground pool 20 ft from property line (30 feet setback required).

Reginald Knetsch, 1632 Orchard Park Road, stated he has purchased a pool and the pool does meet the criteria of where it can be located on the property, but he would like to move it over at least 10 ft so that the house can block the pool from the wind and bad weather.

Mr. Bond asked if this would be 20ft from the Crownland Circle side of the property.

Mr. Knetsch stated that was correct. If the pool was placed where it meets the criteria, it would be impacted by adverse weather conditions.

Mr. Bond noted if this was a regular lot, the applicant would be able to place the pool within 3 ft of the property line, but this is a corner lot.

Letters of no objection were submitted from residents at 1642 Orchard Park Road and 152 Crownland Circle.

Motion by Mrs. Rosenswie, seconded by Mr. Harmon, to close the public hearing and grant a variance for property located at 1632 Orchard Park Road to allow above ground pool 20 ft from property line.

2008-013
Request of Matthew Moscati, Agent for Wilson Farms, for a variance for property located at 4075 Seneca Street to demolish existing vestibule and replace with larger vestibule extending into front yard setback.

Mr. Bond noted this matter was before the Planning Board for site review and tabled for the applicant to appear before this Board for a variance.

Matthew Moscati, Architect, 448 Delaware Avenue, Buffalo, New York, agent for Wilson Farms, stated there is an existing vestibule at the Wilson Farms located at 4075 Seneca Street which projects toward Seneca Street approximately 4 ft., with parking which starts 8 ft in front of the vestibule. The distance from the existing face of the building to the existing parking lot striping is 12 ft. Within that area, the applicant is proposing to tear down the existing glass vestibule and replace it with a new vestibule as part of the planned substantial exterior improvements, and which will extend out 8 ft to allow for one double door facing the side street. Within the vestibule there will be placed materials normally outside the door, such as seasonal displays and an ice machine. The addition will be approximately 8 ft x 30 ft.

Mr. Moscati stated there would be no lost spaces. The applicant is proposing to work within the current area.

Mr. Moscati stated the entrance to the building proper will stay in the same location, but the outside vestibule door will be facing the Southwood side of the building.

Mr. Czuprynski stated the building size, approximately 3000 sq ft, requires 31 parking spaces. It has 14 parking spaces now. If the

Zoning Board grants a variance, it should also grant a variance for the parking which would clear up a future problem with site plan review.

Mr. Notaro stated that the Planning Board review of this matter disclosed that the building pre-existed all the building codes and there have been no real changes. The Wilson Farms has been very careful not to make any changes the footprint of the existing parking as it stands today. If the Zoning Board does grant a variance for the addition, then it should also allow them to maintain the existing parking as it stands, which would be a variance from what the code requires.

Motion by Mrs. Rosenswie, seconded by Mr. Hughes, to close the public hearing and grant a variance for property located at 4075 Seneca Street to demolish existing vestibule and replace with larger 8 ft x 30 ft vestibule extending into front yard setback; and also grant a variance for 16 parking spaces as per the plans submitted.

2008-014
Request of 1655 Union Road, LLC for a reversal of the Code Enforcement Officer’s interpretation of Section 120-23 of the West Seneca Zoning Code.

John C. Garas, Esq., Hopkins Garas & Sorgi, 5500 Main Street, Williamsville, New York 14221, attorney for applicant Robert Hill, President of 1655 Union Road, LLC, stated that the Town Board granted a Special Permit to the applicant on March 13, 2006, to operate an asphalt processing batch plant at 1655 Union Road, pursuant to Section 120-23 of the Zoning Code. The equipment necessary to operate that plant was tied up in litigation until October of 2007. The applicant then met with Code Enforcement Officer William Czuprynski to secure an application for a building

permit for the construction of the infrastructure improvements necessary to erect the plant. At that time, the applicant was informed by Mr. Czuprynski that the special use permit had lapsed and that Mr. Hill would have to re-apply for a special use permit. On November 14, 2007, a letter was sent to the Code Enforcement Officer seeking a written interpretation. On March 10, 2008, Mr. Czuprynski responded, taking the position that since the special use had not commenced within one year, that the permit had lapsed or otherwise was no longer valid. The sole issue on this appeal is whether the Code Enforcement Officer has properly interpreted Section 120-23 (c) of the West Seneca Zoning Code. The applicant respects the position of the Code Enforcement Officer but respectfully submits that his interpretation is erroneous and requests that the Zoning Board of Appeals reverse the determination of the Code Enforcement Officer in this matter. Section 120-23(c) of the Zoning Code provides that “…A special permit shall expire if the special use or uses shall cease for more than one (1) year for any reason.” It appears that the interpretation of the Code Enforcement Officer is that the use must commence within one year of the granting of the permit, or it expires. The plain language of the ordinance is contrary to this interpretation. There is nothing in the ordinance that can reasonably be read to place a one-year time limitation on the commencement of a special use. The ordinance deals with a cessation of a special use for a period in excess of one year. An activity cannot cease unless it is first commenced. This use has never commenced. The language employed elsewhere in the Town Code demonstrates that when the West Seneca Town Board intended that the benefit of a permit or approval was compromised or lost if the activity authorized was not commenced within a specified period of time, the Board knew how to say so in unambiguous terms. Various sections of the Town Code were cited. Mr. Garas also referred to a rule of law which says Zoning Ordinances are in derogation of property owners’ common law rights and strictly construed, meaning when a provision can be interpreted one way or another way, the land owner gets the benefit of the doubt. A special use permit is permission to use

property for which it is not specifically authorized by the Code. It is always the first step in the development process. If the Code Enforcement Officer’s interpretation is correct, it would mean the process would have to begun, completed and commenced within a year, when typically any type of development can easily take more than a year to work its way through completion. The most significant problem with the interpretation is that there is no way to determine precisely when the one-year period of time commences to run. The Code Enforcement Officer says that the time period starts running when the special use permit is granted, but the ordinance does not say that. It must be inferred. It is also unclear what has to happen within a year, whether the applicant has to commence the use, or start construction within a year, or file for a building application.

Mr. Bond stated his problem with reading the interpretation of Mr. Garas is that there is no way a special permit ever ceases by its own volition, other than by the Town Board affirmatively taking steps to negate that. In this case, the applicant was granted a special permit for property on Gemcor and then requested it for this address. According to the interpretation of Mr. Garas, the special permit never does cease and there would be two in effect because the first one never stopped.

Mr. Notaro stated in the approval of the Town Board, it limited the special use permit to Mr. Hill’s company or a company owned by him, to have only one operating facility.

Mr. Bond responded that the wording of the Town Board motion for approval may present a problem because a special permit runs with the land, not the applicant. Someone else could buy that property from the bank and say it’s proper to put up a plant. The Town Board should consider amending the Code so that the wording is more specific.

Mr. Czuprynski stated in his 34 years as Assistant Building Inspector and as Building Inspector, his Department has taken the

position that after a year following the Town Board motion, the permit is gone and must be reapplied for. Based on the applicant’s interpretation, some special permits given 30 years ago would still be in effect even though the neighborhoods have all changed. The use is allowed under the zoning with a special permit. Special provisions are placed on the permit to protect the neighborhood. The Master Plan has been re-done, as well as Union Road. For 30 plus years, the ordinance has been interpreted in this fashion.

Mr. Garas stated the application is not 30 years into the process. The applicant is 6 months past one year.

Mr. Bond further stated that sometimes it takes two, three or four years to complete a project. The word “cease” means something has to be started and then stopped. If the Town wishes something else, they can always change the ordinance. Mr. Bond stated he agreed with the derogation of the common law argument and must be interpreted against the person who writes it in the event of ambiguity.

Mrs. Rosenswie questioned the effect on other special permits in the event the Zoning Board ruled in favor of the applicant and overruled the Code Enforcement Officer, specifically if this would be setting a precedent.

Mr. Notaro responded that a new precedent would be set. Then it becomes incumbent on the Town Board to amend the Town Code to clarify what it wants the code to state.

Mr. Bond suggested that the Board interpret the wording that the special permit ceases after a year unless the cause is by a Court stay, which is in the case of applicant and which happens very often.

Mr. Czuprynski stated that would only prolong the problem and the Town Board may not act on an amendment.

Motion by Mr. Bond, seconded by Mr. Harmon, to grant the request of applicant and overrule the interpretation of the Code Enforcement Officer.

On the question, Mr. Bond stated that the clear language of the section provides that “ … a special permit shall expire if the special use shall cease for more than a year for any reason.” Cease simply means you have to start and stop. It is incumbent upon the Town Board to make any necessary amendment to the code. He felt this was a common sense approach to the issue. He agreed with the argument on the derogation of the common law and therefore it must be strictly interpreted and interpreted against the writer in the event of ambiguity.

Motion by Mr. Hughes, to uphold the interpretation of the Code Enforcement Officer.

On the question, Mr. Hughes felt the Zoning Board of Appeals should not be setting a precedent at this time.

On the question, Mrs. Rosenswie and Mrs. Price agreed, noting that the applicant should return to the Town Board for further relief.

Motion by Mr. Hughes, seconded by Mrs. Rosenswie, to close the public hearing and adjourn the meeting (8:30 p.m.)

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West Seneca Zoning Board of Appeals Meeting Minutes 03/26/2008

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