06/24/2009 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 #2009-06
West Seneca, NY 14224		June 24, 2009

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 June 24, 2009 at 7:00 PM, followed by the Pledge of Allegiance.

ROLL CALL: Present -

Excused - David Monolopolus

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

Motion by Mr. Hughes, seconded by Mrs. Rosenswie, to approve Minutes #2009-05, May 27, 2009.

2009-015
Request of Ralph C. Lorigo, Esq. for a variance for property located at 1510 Orchard Park Rd to eliminate required green space and planting strip.

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

Ralph C. Lorigo, Esq., 101 Slade Avenue, attorney for the applicant, stated the issue before this Board is the elimination of the 5 foot green space which was never an issue until this incident. For sixty years, Best Dodge operated its business at this location and the pavement extending up to the street has been existing since that time. The pavement was present when his client purchased the property in 1990 and in 2001 when the Zoning Board granted a variance for a fence so that part of the property could be used for storage units. Mr. Lorigo presented photos of what the property currently looks like. There were comments concerning the right of way which is not the property of the applicant and not his obligation or right to clean it. Regardless, the applicant cleaned the area for two days and hand painted signs were placed on the fence which show some plantings. The applicant is trying to be a good neighbor. There has not been a complaining neighbor at any one of these meetings. It was his opinion that the 5 foot strip was taken into account by the Zoning Board in 2001. There was a request for placement of green slats in the fence, but this type of obstruction is actually prohibited by Section 120-26 (C) (1) which provides “Along a street line, by a planting strip five feet wide; provided, however, that no shrub planting or tree foliage shall be placed or maintained which obstructs vision at an elevation between three feet and seven feet above the street level.” The photos show that the site has been maintained. In order to make this property economically feasible, the applicant not only sells used cars but has also invested substantial capital to put the storage facility there. There has never been a complaint to the Town since 2001. The problem arose from not issuing a CO because the fence was a few inches in the right of way and that problem was resolved with a right of way agreement with the County of Erie. Now, the applicant has been cited because of section violations which he feels were resolved in 2001.

Mr. Bond questioned if the applicant would be willing to place green slats in the fence.

Mr. Lorigo responded that the estimate to place green slats in the fence was $5,000.00.

Mr. Czuprynski stated it was the obligation of the applicant to maintain the sidewalk, citing from the code: “Any such owner or occupant shall be liable for any injury or damage by reason of omission or failure to repair, keep safe and maintain such sidewalk or to remove snow, ice, dirt or other obstructions therefrom,” so the applicant has had an obligation over

the years to maintain the sidewalk, but never does. The height has nothing to do with this because it is no way near an intersection and has to do with the side of property abutting a street. In no way could a 12 foot fence obstruct the view any place or cause an accident on that corner, sitting back from the intersection at least 80 to 90 to 100 feet.

Mr. Bond stated the previous variance allowing the fence called for shrubbery filled containers on the inside of the fence.

Mr. Lorigo responded the shrubbery filled containers on the inside have already been ruled on. The issue today is the 5 ft green space on the inside. The applicant would be required to cut out the blacktop that has been existing since the 50’s, find dirt somehow, and put green space and then place planter boxes on top of the green space.

Mrs. Rosenswie questioned if it would be just as easy to dump dirt there and plant around which would eliminate the weed problem. She felt it would not be expensive to correct the problem and questioned if the applicant simply did not want the green space.

Mr. Lorigo stated that was correct. It has been blacktopped all this time. Applicant is requesting an elimination of something that has never been there since the 50’s. It was his opinion that in 2001, the solution to the problem was to put the planter boxes only, not to have planter boxes on top of the green space.

Mrs. Rosenswie asked why that was not done then, and if so, are the planter boxes what are shown in the photos.

Mr. Lorigo stated the planter boxes were done as directed and were in existence for a couple of years but the plantings died when the plows come by, so the applicant stopped placing the planter boxes there.

Mr. Bond reminded Mr. Lorigo that there are now salt resistant plants available.

Mr. Czuprynski referred to a statement made by Mr. Lorigo in 2001 that if the fence was placed a foot from the property and if the green area was put in behind the fence, there would be no problem.

Mr. Lorigo stated that his notes indicate that there was blacktop right up to the fence and that was the reason for the planter boxes. If the Board’s interpretation is that it wanted planter boxes on top of green space, that is not a reasonable interpretation in his opinion.

Karen Lucachick, 61 Greenmeadow, expressed her appreciation to Mr. Czuprynski for coming forth with what should be there. She went by yesterday and saw vinyl strips with pictures of flowers wired to the fence which in her opinion was very unattractive. Other storage facilities in town were made to put in shrubs and bushes and grass. This particular site looks terrible.

Mr. Bond stated the applicant was required to put in shrubbery in boxes along the road. Mr. Czuprynski has indicated a 5 ft green area is also required. The applicant is saying it hasn’t been there for a number of years and will be costly. In 2001 the applicant was required to put in the boxes and the question is whether to stay with that ruling or also require a 5 ft green area.

Ms. Lucachick noted that the people across the street have a grocery store and there is grass all the way around. People up and down Reserve Road have the same problem with the snowplows. The entire corner is a mess and something should have been done when Best Dodge moved out.

John Monahan stated he has had three heart attacks which has made it difficult to run the business and meet his obligations. He is three months behind in his mortgage but is current with his tax payments. His taxes were raised $4,000. and he now pays over $2,000 a month. He felt he was being personally attacked by the Building Inspector and referred to previous comments relative to the County right of way. The right of way referred to does not belong to him, he was required to obtain permission from the County of Erie to place the fence on it, and was unaware he was obligated to clean the County’s property. He then spent money to send two men out for two days to clean the area from broken toilets and stones and hatcheting down trees that were growing up between the sidewalk. The hand painted signs with simulated boxes are 8 feet long and placed every other section of the fence. He complied with the variance which cost $800.00 for the plantings, but they kept on dying. He resented having to pay attorneys fees to represent him for something he was already given a variance to do.

Mr. Lorigo stated that the applicant is just trying to get by in a difficult economy. The Zoning Board has ruled he must place the boxes and he is requesting that he not be obligated to put in green space where there has not been any since the 50’s.

Mr. Czuprynski requested that any interpretation on the boxes also include the number of boxes that will be installed and the spacing in between in order to shield the parking from the people on Reserve Road.

Mr. Bond stated the motion in 2001 simply stated boxes, not how many. He asked the applicant if he would be willing to place a box for every section of fence.

Mr. Monahan stated he has already done that but the plantings have died. He has tried to replace them with something that was attractive and stated he will keep the area clean but he was unaware he had the right to go on the right of way.

Mr. Czuprynski stated it makes no sense for the applicant to place one shrub every 8 feet along the fence in order to shield his property from the street.

Mr. Lorigo stated there was no specific requirement in the 2001 variance. He would have to confer with the applicant to determine the number of links of fence or how wide they are. After conferring with the applicant, Mr. Lorigo advised there is 240 feet of fence and 8 ft sections, which is 24 different planter boxes that are probably going to die. He suggested every 3 sections of fence as being more realistic. If there was grass there, it would not be visible from the street side. The planter boxes are marginally visible. It was his opinion that the 2001 ruling is controlling.

Mr. Monahan stated he initially placed 6 boxes and they were not visible and died anyway.

Mr. Harmon stated the object was to shield the property from the road and felt there were three options: planter boxes, 5 ft green space, or slats in the fence. The cheapest option and the one that would look the best, is the slats in the fence. Otherwise, planter boxes along the entire 240 feet, together with maintenance, is costly. Removing the blacktop and putting in the green space would cost thousands of dollars.

Mr. Monahan stated it the slots were necessary, he would be agreeable but would like a sufficient amount of time in order to accomplish it due to the cost involved.

Motion by Mr. Bond, seconded by Mrs. Rosenswie, to table this item until later in the meeting for the applicant to have an opportunity to review the options with his attorney.

2009-023
Request of Matthew J. Rutski for a variance for property located at 3680 Seneca Street to erect detached building to a height of 13.5 ft.

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

Matthew Rutski, 3680 Seneca Street, submitted a folder of information including 6 photos showing different views of his home and property from various locations. He decided to put a second story on the garage for storage and there will be a carpenter shop in the back. There is a 10 foot ceiling on the first floor and a 9 foot ceiling on the second floor.

Mr. Hughes noted that the applicant was requesting a height variance for 13.5 feet and questioned if this was now being increased. The drawing says 29.3 feet.

Mr. Rutski stated that is to the peak. The ridge line is 20 feet. There is a 10 ft ceiling, 12 inch perimeter support and another 9 ft wall on top of that.

Mr. Bond stated the ordinance is based on the halfway point between the ridge and the peak. The ordinance would interpret it as 25 feet which is twice the height allowed by the ordinance. The proposed garage has a 40 x 45 feet footprint with a peak of 30 feet. Mr. Bond inquired what the appliants plans to use the second floor for.

Mr. Rutski responded that he plans on doing carpentry on the second floor. He works for New York State and is a commercial electrician and works for a local company. His house is small with 900 sq ft and a

basement ceiling of only 6 ½-7 feet. The first floor apartment is larger and he rents that out. He would like the 4-car garage with a carpenter room and Florida room in the back.

Mr. Bond inquired if the plaintiff would be using the garage for business purposes.

Mr. Bond noted that the letters of consent from the neighbors only refer to a 40 x 40 ft two-story garage exceeding the allowed height. The variance is not for a 40 x 40 ft structure, rather the height of the structure.

Mr. Harmon stated he was leery that the applicant has not provided a specifically outlined letter of consent from the neighbors. He was concerned that a neighbor may come to the town after the fact when they see the height of the building. The garage itself is 1600 sq ft which is three times the size of the house and the neighbor’s garage is fairly close on the one side.

Motion by Mr. Bond to deny the request for a variance for property located at 3680 Seneca Street to erect detached building to a height of 13.5 ft.

Motion by Mr. Harmon, seconded by Mrs. Rosenswie, to table this item until next month for the applicant to submit consent letters from the adjoining neighbors, specifically outlining the exact nature of the applicant’s request.

2009-015
Request of Ralph C. Lorigo, Esq. for a variance for property located at 1510 Orchard Park Rd to eliminate required green space and planting strip.

Motion by Mr. Bond, seconded by Mr. Hughes, to grant a variance for property located at 1510 Orchard Park Rd to eliminate the 10 ft required green space on the condition that the fence along the property line 240 feet have green slats; one half (120 feet) to be completed by August 31, 2009 and the remaining half (120 feet) to be completed by August 31, 2010, and eliminating the planter boxes.

2009-035
Request of Deborah Mattison for a variance for property located at 1000-1111 Reserve Road to erect refuse fence corral in required front yard (east edge of property).

Deborah Mattison and Rita English, representing the Colonial Manor Board, appeared on the request for a variance. Ms. Mattison stated there is a blacktop pad on Angle Road which has been used to place garbage. They would like to erect a fence corral to enclose the bags of garbage.

Mr. Bond stated the code does not allow storage in the required front yard. Technically that is the front yard even though it faces on Angle Road.

Motion by Mrs. Rosenswie, seconded by Mr. Hughes, to close the public hearing and grant a variance for property located at 1000-1111 Reserve Road to erect a 6 ft high refuse fence corral in required front yard (east edge of property).

2009-036
Request of Brian Patti for a variance for property located at 193 Boncroft Drive to erect a 6 ft high fence in side yard setback (4ft high permitted).

Brian Patti, 193 Boncroft Drive, stated he has a swimming pool in the yard and an existing 4 ft chain link fence which is rusty. His intention is to provide a safe environment for the children and to prevent neighborhood kids from climbing over the fence to use the pool.

Mr. Bond asked what would prevent kids from entering the driveway and walking to the back yard.

Mr. Patti stated there was a 5 ft high fence with a gate which the kids are unable to scale. The location of the proposed fence was reviewed with the Board members. An alternate location and proposal was also proposed which would not entail a variance.

Mr. Bond noted that the consent letters from the neighbors do not indicate the height of the fence.

Mr. Patti noted that the one letter that was not specific was obtained prior to his notification that letters with specifics on the height of the fence were required.

Motion by Mr. Bond, seconded by Mr. Harmon, to close the public hearing and deny the request for a variance for property located at 193 Boncroft Drive to erect a 6 ft high fence in side yard setback.

On the question, Mr. Bond stated the benefit sought can by achieved by another method other than an area variance. The requested area variance is substantial because it would be 23 ft by 10 ft and enclosed by a 6 ft fence.

Mrs. Rosenswie cited the security issue as outlined by the applicant and the fact there was no opposition voiced by the neighbors.

Mr. Hughes stated he would be willing to table this item to give the applicant an opportunity to obtain adequate consent letters from the adjoining neighbors.

2009-037
Request of Craig Scott for a variance for property located at 9 Constitution Avenue to erect 6 ft high fence in side yard (4 ft allowed; 6 ft provided).

Craig Scott, 4845 Transit Road, stated he is closing on this property on the 3rd. There is a small back yard and the house is set off to the side. There is 6 ft to the property line on one side and 15 ft on the other side. He would like to utilize he property and have some privacy from Seneca

Street. Letters of consent were presented from neighbor at 3 Constitution Avenue.

Mr. Bond stated he viewed the property from Seneca Street and noted there is an existing 6 ft fence.

Mr. Scott stated he wanted to come off the front instead of starting in the back.

Mr. Harmon noted that the proposed fence will be close to the neighbor’s shed. The location of the fence on the survey was reviewed with the Board members. Mr. Harmon also noted that the applicant is not as yet the owner of the property.

Motion by Mrs. Rosenswie, seconded by Mr. Bond, to close the public hearing and deny the request for a variance for property located at 9 Constitution Avenue to erect 6 ft high fence in side yard.

On the question, Mr. Bond stated that the area is 24 feet long and the benefit in terms of the privacy being sought can by achieved by another method in compliance with the ordinance.

2009-038
Request of Christian & Barbra Pasisi for a variance for property located at 231 Tudor Blvd to erect 6 ft high privacy fence in exterior side yard (no fence allowed; 6 ft fence provided).

Mr. Bond noted that the applicants wish to erect a 6 ft privacy fence in the exterior side yard. It was his recollection that there are five or six similar fences along Dorrance Avenue and this is a corner lot.

Ms. Quinn presented photos, along with consent letters from 215 Tudor and 250 Tudor Drive.

The location of the existing fence was reviewed with Ms. Quinn who was advised it is currently in the right of way. Any new fence would need to be erected on the property line and the correct placement was reviewed with Ms. Quinn.

Motion by Mr. Bond, seconded by Mr. Hughes, to grant a variance for property located at 231 Tudor Blvd to erect 6 ft high privacy fence in exterior side yard with the stipulation that this approval does not mean that the fence can be placed in the same location as the existing fence which is in the right to way.

2009-039
Request of Candace Castricone for a variance for property located at 2339 Union Road to allow live music.

Ralph C. Lorigo, Esq., 101 Slade Avenue, represented the applicant. Mr. Lorigo stated that this property is zoned for the operation of a restaurant/bar and has been in business since about 2001. It was originally the Ponderosa banquet hall and then converted into a restaurant. It is now being operated as Rock-n-Roll Heaven with live music rather than piped music. The code does not allow any live music at all. On the complaint of noise from some neighbors, the Police Department, went out on 14 different occasions with their meter and found no violation. This brought up the fact that it is live music rather than a sound system and requires a variance. It was his understanding that a number of neighbors are present this evening who would be upset with a variance, but there are a number of similar situations in town. This property and the property adjoining are properly zoned.

Town Attorney Shawn Martin confirmed that in the 2001 motion for rezoning, 240 feet was cut from the north line to be rezoned and the remaining 10 feet was left undisturbed.

Mr. Lorigo asked the Board to keep in mind that a number of establishments are currently operating with live music, unaware that it is not allowed anywhere without a variance. A letter from the resident at 66 Forest Avenue was submitted, indicating that the music did not bother him at all.

Mr. Martin stated he has the police records of the complaints and there were two occasions when they were asked to turn the music down.

Lawrence Myers, 36 Greenfield Avenue, stated his house is seven houses up on the left as you drive up Greenfield from the corner. All the neighbors in that area of the street are bothered by the activities of Rock-n-Roll Heaven. The permission granted several years ago for serving alcohol in the banquet hall was not opposed by the neighbors. Now, there is noise that goes on until 3:00 in the morning. There are minor children on the street and many of the neighbors have to work weekends and lose sleep. Mr. Myers stated he is 45 -50% deaf, wears hearing aids which he takes out at night, and he can still hear the noise seven doors down, loud enough to keep him awake. The tranquility of the neighborhood is being ruined and he is concerned that it will affect their property values. The decibel level can be up to 60 or 65 decibels of noise, which is a lot of noise. He did not agree with the police reports that indicated the noise was less than that. People have their windows rattle and have witnessed people running through the parking lot of Rock-n-Roll Heaven at 2 – 3 o’clock in the morning. Motorcycles rev at all hours of the morning.

Coreen Northern, 16 Greenfield Avenue, stated she is the third house down the street so her house backs up to the building. In the winter when the windows are shut up and closed, they rattle from the bass being so loud. Now that summer is here, the situation is even worse with the windows open. They don’t sleep at night. She is aware the police recorded the decibel level from the Myer’s house but they are several houses down from her. Whether they are within the decibel level or not, the neighbors should not have to listen to the music from this bar until 4:00 a.m.

Mr. Czuprynski stated that the decibel levels are taken from the property line of the business. The Police Department can go out and sometimes 65 decibels are the norm to go by, but there are other types of noise that gets by the property such as the bass. It’s an annoying noise because it’s pounding. There is also supposed to be dead time between 11:00 p.m. and 7:00 a.m.

Walter Machnica, 8 Greenfield Avenue, stated he has been to the Building Inspector’s office three to four times since last October. They put in picnic tables under a patio and he was informed by the Building Inspector

there is no license for it. The patrons drink out there and make all kinds of racket. He has triple pane windows and thick insulation in his house but still hears the pounding noise. This has been going on since last September or October.

Mr. Lorigo stated he understands what the neighbors are saying. There are two situations where they agreed to turn down the music but the police reports say they were not in excess of the decibel levels.

Mr. Bond cited Section 82-6 of the noise ordinance: “The use of any sound-producing, sound-reproducing or sound-amplifying devise, machinery, domestic equipment, heavy equipment or engine so as to cause the sound produced thereby to be audible outside the building or beyond the boundary of the property (real and personal) where it originates, between the hours of 11:00 p.m. and 7:00 a.m. the following day, shall be presumptive, prima facie evidence of a violation of this chapter.”

Mr. Lorigo argued that is prima facie and in this situation, testing was done and they weren’t in violation. On a number of occasions, it is specifically stated that they did not find loud noise and in others, it was not in excess of the decibel rating. There was also an indication of the cooperation provided to the Police Department by the establishment. He agreed that no one wants to live next to any kind of disturbance, but this establishment has a right to be there and they could have pre-recorded music. A sound system can have the same kind of tempo as live music. His client is agreeable to certain restrictions on time and will try to work with the neighbors. Otherwise, if denied, then a sound system will go in and may not change anything for the neighbors.

Mr. Lorigo stated 11:00 p.m. does not work with a bar. Perhaps 2:00 a.m. would be sufficient. His client is willing to close off the back windows and install sound insulation, but has never been cited for violation of the code up to this point.

Mr. Lorigo disagreed and stated the decibel level will be the same and is the issue that needs to be addressed. Having a sound system will not eliminate the problem. The problem needs to be resolved through cooperation between the neighbors and owner and manager of the establishment of the legitimate issues.

Mrs. Rosenswie noted that live music in an establishment draws a different crowd than a sound system.

Mr. Lorigo stated this could be tabled with applicant to return with a proposal for insulation; the other option would be to grant a short term variance and then the neighbors would have an opportunity to see the difference.

Mr. Bond suggested the applicant keep the music off until such time as the work has been completed and then a variance could be granted for a month with a decision to be made at that point for a six-month variance. The applicant could then be required to return in a year.

Angelo Castricone, Old Farm Road, stated the last thing he wants to do is be in violation of anything. He has met with the Police Chief and the Supervisor to address the issues on these unfounded police reports. He did this on his own.

Mr. Casticone stated he could do it within a week but he needs to be open and for every day he’s not open, he’s losing business. He took over the dilapidated Ponderosa building and put $120,000 into the building. His taxes went up $7,000 last year. He’s trying to make it a viable business and will do everything possible to turn the sound down.

A neighbor responded that he understands what the applicant stated about putting money in the establishment, but the neighbors were there first.

Mr. Bond agreed that the neighbors were there first, but felt the suggestion made on the insulation is reasonable in order to keep a business in town as long as it does not interfere with the neighbors’ quality of life.

Mr. Lorigo stated that none of the police reports resulted in a citation. He understands the concerns of the neighbors but is trying to offer a solution. If the applicant is turned down, then he will have pre-recorded music which doesn’t resolve the problem. The better situation is to try to resolve the problem with the insulation. Once the insulation is in, then the applicant can establish the bands again. The applicant could return in a month and if the Board was satisfied, then it could consider granting a six-month period of time for the variance. The Board can then make a further decision from that point.

Motion by Mr. Bond, seconded by Mrs. Rosenswie, to close the public hearing and deny the request for a variance for property located at 2339 Union Road to allow live music.

On the question, Mr. Bond stated that inside music is a detriment to the nearby properties and would be created by granting a variance to allow it. He disagreed with the suggestion that there is no difference between live music and piped in music. Anyone who has attended a social function such as a wedding knows there is a difference between live music and piped in music. The other question is whether the benefit sought by the applicant for live music can be achieved by another means. He disagreed with the suggestion that the applicant cannot stay in business without the live music. The applicant needs to change his business plans in order to stay in business and survive. The applicant is not asking for live music from 8:00 p.m. until 11:00 p.m. He is requesting live music until 2:00 or 3:00 or 4:00 a.m. which is substantial. Mr. Bond stated the problem is self created and noted that every other bar has the same problem. The applicant purchased the property and operated it as a restaurant and then as a bar with loud music. He noted the fifteen people in attendance who were opposed to the request, evidencing that there is opposition from nearby property owners.

2009-040
Request of Carriagers of West Seneca for a variance for property located at 224 Fisher Road to allow outside seating on deck.

Craig Hicks, 152 Sunrise Terrace, appeared on behalf of the Carriagers, and stated the club would like to build a 20 ft x 30 ft deck on the east side of the building. There will be no access from the outside; only from the inside of the club. There will be no live music and there is a 15 ft

buffer from the adjacent property. Attempts to contact neighbors were unsuccessful as the people across the street are tenants and no one was available at the adjacent property.

Motion by Mr. Bond, seconded by Mrs. Rosenswie, to close the public hearing and grant a variance for property located at 224 Fisher Road to allow outside seating on deck.

2009-041
Request of Treadwell Enterprises for a variance for property located at 1175, 1189, and 1193 Union Road, for front parking setback on Union Road; rear building setback; 8 ft high fence at rear adjacent to house; 8 ft and 4 ft high fence in front setback; permit curb cut at Ebenezer closer than 30 feet to Union Road.

Ralph C. Lorigo, Esq., representing Treadwell Enterprises, stated five variances are necessary, but one variance has two requests for fences that are in excess of code.

Mr. Bond noted this item was before the Planning Board which recommended approval for the project contingent upon the applicant obtaining the required variances from the Zoning Board of Appeals.

Mr. Lorigo stated that the plan was reworked based on issues raised by the neighbors and the Planning Board. A house on Union Road was purchased and the house in the back was given up. There is a couple present tonight that owns the house most affected and substanially involved throughout the project. They worked with the neighbors to arrive at a plan that was agreeable to the neighbors. There is one major difference between that plan and the plan being presented tonight. At the request of the neighbors on Ebenezer, the entrance on Ebenezer was gated. The petitioner went through the Planning Board and was unanimously approved by the Town Board with the support of the neighbors for the project. When they returned to the Planning Board for site plan approval, the Board did not approve the plan and changed a number of items. Everything was resolved with the neighbors on the compromise for a barrier on Ebenezer, but that was eliminated by the Planning Board. The barrier was eliminated and replaced with a curved

and curbed right turn only. Now, the neighbors are not pleased and the plan requires variances.

Ryan Graves, 53 Ebenezer, stated the neighborhood worked with Treadwell and Mr. Lorigo and was in support of the project based on the gate on Ebenezer to keep traffic off the street. Ebenezer has heavy traffic, only 38 feet wide, and is used as a cut through during rush hour time. The gate was a safety feature. It was his opinion that patrons of the restaurant will not turn onto Union Road, but will flow onto Ebenezer, especially at rush hour. Without the gate, one car parking waiting to get in will block traffic. The gate alleviates that problem. It was his understanding that the last meeting resolved all the issues, but now the plan has been changed again and the gate eliminated. The neighbors cannot support this plan without the gate. No one can enforce the right turn only sign, because it’s put up on KFC. It’s not a DOT regulated sign or a sign that can be enforced by the Police Department.

Mr. Bond explained that the variances being requested have nothing to do with the neighbors’ objections. The Zoning Board cannot overrule what the Planning Board did. It can only grant or deny the requested variances. The only time a town can enforce private signage is if it approved as part of a plan submitted to the Town Board.

Lisa Graves, 53 Ebenezer, understood this is before the Zoning Board on the issue of the variances, but their main concern is one of safety on Ebenezer. Everything they have done so far has been eliminated with the gate being removed from the current plan. She felt the neighbors on Ebenezer should not have to deal with the traffic and the small children who live on the street will be in danger. Quality of life will be nonexistent and this is a serious issue to the neighbors.

Mr. Bond responded the gate was removed from the plan based on the recommendation of the Planning Board and the only alternative is to return to the Planning Board.

Mrs. Rosenswie questioned if the Planning Board would be willing to make the change.

Mr. Lorigo stated the Planning Board is not willing to make such a change. The Planning Board believes that the right turn only will control traffic. There is substantial engineering with the curbing. There cannot be a left hand turn made without running into the curb. This was originally a 90 degree exit and it is curbed and curved specifically to avoid the problem.

Mr. Bond stated that Mr. Martin can request the Town Board to make the no left turn part of the code.

Motion by Mr. Bond, seconded by Mr. Hughes, to close the public hearing and grant a variance for property located at 1175, 1189, and 1193 Union Road, for front parking setback on Union Road; rear building setback; 8 ft high fence at rear adjacent to house; 8 ft and 4 ft high fence in front setback; permit curb cut at Ebenezer closer than 30 feet to Union Road, and reduce the entrance from 25 ft to 24 ft wide as shown on the drawing.

On the question, Mr. Bond stated he is not unsympathetic to the concerns of the neighbors, but he is unable to change what the Planning Board has approved.

2009-042
Request of Young Development for a variance for property located at 1370 Southwestern Blvd for unit density for 68 units (48 existing, 20 proposed); side yard setback for proposed garage.

Ralph C. Lorigo, Esq., representing Young Development, presented a visual demonstration on the plan of where the variance is being requested. This project was previously before the Planning Board. The shed is now gone. The applicant has acquired 1.6 additional acres and there is greater density in the 68 units than what was in the 41 units, percentage wise.

Motion by Mr. Harmon, seconded by Mr. Bond, to close the public hearing and grant a variance for property located at 1370 Southwestern Blvd for unit density for 68 units; and the side yard setback for proposed garage.

2009-043
Request of Ralph C. Lorigo, Esq. for a variance for property located at 1416 & 1420 Ridge Road for parking of trucks and equipment outside.

Mr. Lorigo responded that he believed a short form SEQR had been filed. It is a class 2 action.

Mr. Bond noted that a use variance requires the SEQR process and the Board cannot vote on it unless there is a SEQR filed.

Mr. Lorigo stated this is a blacktop paving business. It is a seasonal operation, from May through November, that time period being when blacktop is available. There are two residences side by side, zoned C-1, on Ridge Road and applicant is adjacent to Monroe Muffler which is zoned C-2, and not far down from Island Catering which is also zoned C-2. The code only allows the parking of vehicles outside in a C-2 district. Nowhere in town can vehicles such as the applicant’s trucks for the paving business, park except in a C-2 district. Mr. Donahue is along Ridge Road, a commercial thoroughfare, and has been operating his business for ten years, unaware that he was not properly zoned. His neighbors also thought he was in compliance and there have been no complaints filed with the Town during those ten years. No business is conducted at the site. In the past, Mr. Donahue has washed vehicles but the property will only be used to store the vehicles, starting the vehicles each morning and then bringing them back. A one-year variance is being requested. He was at the Planning Board when some neighbors spoke and he has some letters of support. Other neighbors are present this evening as well as Marge and Jim Armbruster. The property is clean and applicant in the past has used a blower to blow the lot clean causing the neighbors to complaint about the noise. The applicant is requesting a one-year use variance. No work will be done at the location; all work will be off side; the property will be used to park the dump trucks, the Chevy trucks, a sealer truck, a roller and a paver; at no time will blacktop be brought back to the site. Blacktop is hot on the trucks and taken off at the work site. If there is excess blacktop it is actually returned to the

plant. Mr. Donahue has installed a fence around the property at the cost of $5,000. A letter dated June 10th from the DEC was submitted stating there was no evidence of any petroleum contamination on the surface and no remediation was necessary. Mr. Donahue originally made an application for re-zoning and the Town Board tabled Mr. Donahue’s application for rezoning and recommended that he come before the Zoning Board, rather than this property be considered for a re-zoning to C-2, opening the property up to a number of uses that would be objectionable to the neighbors. A one-year use variance would also require the applicant to continue being a good neighbor or the variance would not be extended at the end of the year’s time. The applicant has utilized this property for his business for over ten years.

Consent letters from Deborah Ann Fuszara, 1416 Ridge Road, and Island Park Catering in support of applicant’s request were submitted.

Mr. Donahue explained the operation, hours, and the seasonal nature of his blacktop business to the Zoning Board. He also resides on the property.

Henry Andrjewski, 21 Maryon, stated he is in opposition to the request for a variance based on past problems with noise, dust and trucks running late at night and early in the morning. He submitted copies of petitions signed by neighbors and presented to the Planning Board in opposition to the request for rezoning.

Gary Tumey, 57 Rolling Woods Lane, stated he owns a house at 1482 Ridge Road which is occupied by is daughter and son-in-law. He spoke in opposition to the request based on the potential for devaluing the property.

Dolores Mendola, 1338 Center Road, stated she also has an interest in property on Ridge Road. This section of Ridge Road is an entrance to the Town of West Seneca and allowing exposed trucks and equipment diminishes the value of the local property, most of which is residential property. She felt he should park his vehicles in a garage.

Margaret Armbruster, stated her business is located at 1436 Ridge Road, adjacent to Straight Line Paving. She formerly owned the two homes now owned by Mr. Donohue and currently owns the lot at 1450 Ridge Road. The property across the street is Lackawanna and the property

line is at Midas. There are some double homes and businesses on Hilbert and that commercial corridor has been existing since the 1960’s. Mr. Donohue is a good neighbor, takes good care of the property, has paved the property, and erected a privacy fence. She felt if the neighbors gave him a chance, Mr. Donohue would prove himself to be a good neighbor.

Deb Fuszara, 1416 Ridge Road, stated she is a tenant of Mr. Donohue’s. She has lived in her home for a number of years and has never had any problems with Mr. Donohue. Her husband passed away in 2007 and she feels safe living on Ridge Road with his business next to her. She owns two exotic birds and has never experienced any problems with fumes, and has never experienced noise or any other problems.

Mr. Lorigo stated this is not the same situation as placing commercial in the middle of residential. This area has varying degrees of commercial districts. The change to a C-2 is a much greater change than the request of a use variance. If this were a C-2, then it would allow a business such as Midas Muffler. This is a seasonal, short term operation and simply for the parking of vehicles. A one-year use variance keeps the neighborhood as it has been for the past year and keeps the business owner in business. If the trust with the neighbors is violated then the applicant’s ability to continue the use variance ends. A C-1 could have more intrusive operations than the parking of vehicles in the back yard.

Mr. Bond disagreed, stating in his opinion there were few things more intrusive than having blacktop vehicles in the back yard.

Mr. Lorigo noted that these vehicles are empty when they return to the property. He requested that the Board table the item so something in writing can be presented to the Board to follow along with the use variance obligations.

Mr. Czuprynski noted that the applicant has not yet met one criteria for granting a variance in this case.

Motion by Mr. Harmon to table this item until next month. Motion lost for lack of a second.

Motion by Mr. Bond, seconded by Mrs. Rosenswie, to close the public hearing and deny the request for a variance for property located at 1416 & 1420 Ridge Road for parking of trucks and equipment outside.

On the question, Mr. Bond cited the following four criteria to be met in order to grant a use variance and stated the applicant has failed to satisfy any of them:

1. The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence. There has been nothing presented by applicant to show that he cannot use the property in its current zoning and realize a fair return.

2. That the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood.

3. That the restricted use variance, if granted, will not alter the essential character of the neighborhood. Mr. Bond reasoned there was a substantial difference between a C-1 and a C-2 zoning and would alter the character of the neighborhood.

4. That the alleged hardship has not been self-created. Mr. Bond stated ignorance of the law is no excuse and reasoned that the applicant should have looked into the property’s zoning ten years ago when he began the business.

2009-044
Request of Raymond Normond for a variance for property located at 435 Fisher Road to erect handicapped access ramp.

Raymond Norman, 435 Fisher Road, stated he has lived at the property for 37 years and requires a handicapped access ramp for his wife in order to transfer her into the house. Letters of consent were submitted from residents at 451 Fisher Road, 358 Fisher Road, and 429 Fisher Road.

Motion by Mrs. Rosenswie, seconded by Mr. Hughes, to close the public hearing and grant a variance for property located at 435 Fisher Road to erect handicapped access ramp.

2009-045
Request of Raymond Nihill for a variance for property located at 113 Covington Drive to allow parking pad .5 feet from side property line.

Jean Nihill, 113 Covington Drive, submitted letters of consent from residents at 109 Covington Drive, 103 Covington Drive, 112 Covington Drive, 108 Covington Drive and 119 Covington Drive, all of whom have been apprised of the proposal and reviewed the plan for the pad.

Motion by Mr. Hughes, seconded by Mrs. Rosenswie, to close the public hearing and grant a variance for property located at 113 Covington Drive to allow parking pad .5 feet from side property line.

Motion by Mrs. Rosenswie, seconded by Mr. Hughes, to close the public hearing and adjourn the meeting (10:15 p.m.)

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West Seneca Zoning Board of Appeals Meeting Minutes 06/24/2009

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