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West Seneca Zoning Board of Appeals Meeting Minutes 07/23/2008
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 July 23, 2008 at 7:00 PM, followed by the Pledge of Allegiance. ROLL CALL: Present -
Penny K. Price Sandra Giese Rosenswie Michael Hughes Michael Harmon Paul Notaro, Deputy Town Attorney William Czuprynski, Code Enforcement Officer Excused - None OPENING OF PUBLIC HEARING Motion by Mr. Hughes, seconded by Mrs. Price, to open the Public Hearing.
APPROVAL OF PROOFS OF PUBLICATION Motion by Mr. Harmon, seconded by Mr. Hughes, to approve the proofs of publication and posting of legal notice.
APPROVAL OF MINUTES Motion by Mrs. Rosenswie, seconded by Mrs. Price, to approve Minutes #2008-06, June 25, 2008.
OLD BUSINESS: 2007-057 Mr. Bond noted that this item was granted a variance in March and is not on the agenda. The applicant is requesting a six-month extension of time.
2007-057 (Continued) Ms. Peacock stated six months would be sufficient. Motion by Mr. Bond, seconded by Mr. Hughes, to extend the variance previously granted for another six months.
TABLED ITEM: 2008-035 Charles Mager, 3369 Clinton Street, stated the variance is being requested for additional parking on the lot adjacent to his neighbor’s property. Deputy Town Attorney Notaro stated the property is a non-conforming use and based on his review of the map with the Building Inspector, the request would be an extension of the non-conforming use into the residential parcel that was added later on after the existing plans were approved and would not be appropriate parking based on the non-conforming use. Mr. Bond noted there is existing parking in the rear and asked why additional parking could not be placed beyond that. Mr. Mager responded that area is a flood plain and he was advised by the Town Engineer that no changes could be made in a flood plain. Mr. Notaro stated FEMA will not remove that area as a flood plain due to its close proximity to the creek and he didn’t believe additional parking could be extended into the R-50 area any more than what exists. Mr. Hughes asked how many additional parking spots were being requested. Mr. Mager stated approximately a dozen. Cars are currently parking in the existing lot and also illegally off to the side.
2008-035 (Continued) Mr. Bond noted the ordinance requires a fence between commerical and residential property. This is actually residential property but being used as commercial. Mr. Bond asked if the applicant would be willing to put more green area and a fence. Mr. Mager responded that there is an existing fence. He would be willing to extend the fence if necessary. There is green area now. He could also add trees. Mr. Czuprynski stated that would meet the requirements. Brian Doster, 3361 Clinton Street, stated he could not understand why the applicant was requesting additional parking when at the time the patio was requested, it was clearly stated that there was sufficient land for parking. Cars are parking illegally because at the time of the restaurant expansion in 1996, the plans submitted were erroneous. The flood plain cuts off three or four spots on each side, so the applicant didn’t have enough parking for the restaurant expansion, which means there wasn’t enough parking for the patio. He then expanded beyond the 25% as allowed by the code. The size of the building was stated as 4,000 sq ft when it actually is 4,300 sq ft. They only had 339 sq ft left to expand from previous variances granted, but expanded 846 sq ft. Mr. Doster felt he was denied the facts so that he could not file an Article 78. Mr. Bond stated the issue here was if the applicant should be allowed to park in a residential area and asked how that would affect Mr. Doster. Mr. Doster stated he is affected by the driveway between the properties with people coming in and out. There are people urinating on the patio and having sex in his backyard. He referred to a used condom found 150 ft into his property. They should not have been granted a variance for the patio in the first place. Mr. Bond stated the code allows an expansion of a non-conforming use by 25%. The Zoning Board granted an expansion beyond that. Mr. Doster stated that was not stated in the record. Mr. Bond explained that was the reason the applicant applied for the variance because it was beyond the 25%. He wouldn’t have required a variance if it was allowed by the section.
2009-035 (Continued) Mr. Doster disagreed, stating he would have had to appear in any case because of the non-conforming residential use. Plus, a porch was put in front that was less than 20 feet from the front. Mr. Bond stated the discussion tonight involves the parking in the residential district for a non-conforming use, and he did not want to rehash past issues. Mr. Doster stated it was clearly stated there was enough land for the parking when they put up the patio. It that is part of tonight’s plan, that is segmentation. Deputy Attorney Notaro stated that is not an issue of segmentation which has nothing to do with tonight’s procedure. Mr. Bond stated the question before this Board is whether he has enough parking spaces right now for the size of the building as it exists. If three is not, then it is up to the Code Enforcement Officer to cite the applicant. Mr. Notaro stated that what Mr. Doster is referring to is the 25%. When there is a non-conforming use, regardless of the variance granted, it can only be expanded 25% of the existing use. If the applicant has used up the 25%, then any further expansion, regardless of the reason of the non-conforming use, is not allowed by statute. Old applications are done and they cannot be undone. The question today is whether the current request will take us over the 25% from before. If it does, then it is not appropriate to grant the variance. Mr. Bond asked if that meant under no conditions could a variance be granted to go beyond the 25%. Mr. Notaro stated that was correct. Once the 25% of the existing non-conforming use has been reached, they they are capped and any further expansion of the 25% is not allowed. Mr. Bond noted that no changes are being made to the building itself; it is the area that encompasses the non-conforming use. When the ordinance came out in 1966, his property would have been established as to size. The question is, from 1966 to now, has the area been expanded more than 25%.
2008-035 (Continued) Mr. Notaro stated it is not based on the area, but rather the size of the building. Mr. Bond noted they are not proposing the expansion of the building, only the parking. Mr. Notaro responded that if the parking is to expanded over 25% and the building is already expanded over 25%, then there may be a violation of the statute. Mr. Bond stated it was his understanding that the 25% refers to the use, not the building. Mr. Mager noted the property address is 3369 Clinton Street and has nothing to do with the property on where the restaurant sits. This is a separate parcel of land and was purchased solely for the purpose of putting a driveway in and parking cars. Because it’s zoned R-50, a special use permit was necessary for the driveway and he assumed it was permissable to park cars there also. Mr. Notaro stated that is incorrect. Parking cars is not an allowable use in a R-60 when they are not being parked at a principle residence and in this case, there is no building there. Mr. Mager inquired what it could be used for. Mr. Bond responded that the property could be used for residential purposes, such as a house or a garage. A rezoning request may be in order. Mr. Mager stated they had already requested rezoning to commercial but were turned down. Mr. Bond asked if there was a building on the lot when purchased. Mr. Mager stated the building was taken down following an accident, and leveled. Mr. Czuprynski stated the property is zoned R-50 and cited 120.4(b) of the code: “parking of equipment and commercial vehicles used in connection with a permitted use but not in a required front yard.” If Mr.
2008-035 (Continued) Mager’s building was a permitted use, then he could use the R-50 as parking. It is not a permitted use in R-50 so he would need a variance to park in the R-50 district. Mr. Mager stated one of the reasons he applied for the variance is because his neighbor had written several letters to the Building Inspector and Town Board regarding insufficient parking for the restaurant business. He is unsure now if there are enough parking spaces or not and that is the reason for requesting the additional 12 parking spaces. Mr. Bond stated it now appears there is a question whether there is enough parking for the building as it presently exists. Mr. Czuprynski stated Mr. Pinnavaia from his office did figure out the parking prior to the granting of the variance for the patio and determined there was sufficient parking. Motion by Mr. Bond, seconded by Mr. Harmon, to table this item until the August meeting. On the question, Mr. Bond requested applicant provide the Building Inspector a survey of the subject lot with the parking sketched on it. A consideration will be whether the additional parking is being requested because it is needed or simply because the applicant wants it.
NEW BUSINESS: 2008-049 Heidi Sheiber, Heritage Fence, 2700 Transit Road, stated Heritage Fence is requesting a variance to retain the existing fence at its current location. Mr. Bond inquired if the fence was also used for advertising. Ms. Sheiber stated the fence was used for advertising and to show what the business has because there is no actual show room. There is no other land available other than the front yard to place the fence. The office is upstairs and there is no room for a show room.
2008-049 (Continued) Mr. Bond asked who the owner of the property is. Ms. Sheiber stated the property is owned by Metz Properties and Heritage Fence rents an office from them. Mr. Bond noted this presents a problem since the Zoning Board cannot grant a variance for someone else’s land. Motion by Mr. Hughes, seconded by Mrs. Rosenswie, to table this item until the August meeting for the applicant to submit an authorization from the owner stating no objection to Heritage fence applying for the variance.
2008-050 Ann Gannon, 329 Angle Road, stated she has been having problems with a neighbor over the past several years. The police have been called on numerous occasions and she is requesting the chain link fence to prevent problems in the future. Mr. Bond stated he is aware of the calls made to the Police Department and the particulars of the complaints made to them. The requested fence is often referred to as a “spite fence” and he is not in favor of them. He failed to see how the fence would rectify the applicant’s complaints. Mr. Notaro stated this situation is more appropriate for the warrant clerk to handle and Ms. Gannon should contact the warrant clerk to schedule an appointment. The warrant clerk will then make a determination whether or not to file criminal charges. Mr. Hughes inquired if the applicant had letters of support from the neighbors. Ms. Gannon replied that most of the neighbors are elderly and stay to themselves. She had no letters.
2008-050 (Continued) Motion by Mrs. Rosenswie, seconded by Mr. Hughes, to table this item and suggested the applicant schedule an appointment with Det. Connors for a possible resolution through Community Dispute Resolutions.
2008-051 William and Molly Grabar appeared on the request for the variance. Mr. Bond noted that the applicants have a problem with their driveway in that when one car is parked behind the other, the second car extends over the sidewalk which is a violation of the code. Applicants are requesting an 8 ft pad to park their vehicles side by side. A letter of no objection was submitted from the property owner at 90 Thomas Drive. No comments were heard from the public. Motion by Mrs. Rosenswie, seconded by Mr. Bond, to close the public hearing and grant a variance for property located at 96 Thomas Drive to extend existing driveway 8 ft, based on the hardship presented by applicant.
2008-052 Dawn Metzger Schoenthals, 4135 Seneca Street, stated the restaurant is requesting an area for use as “bike night” on Monday nights from 7:30 p.m. to 10:30 p.m. so that patrons can dine and drink outside. She submitted a letter from Ed Whitney of 120 Creekview Drive stating no objection. Ms. Schoenthals also stated a temporary SLA permit has been received. Mr. Bond commented that this is a temporary variance for the months of June through September. The applicant reviewed the plans with the
2008-053 (Continued) Zoning Board members and the proposed placement of tent and the area to be roped off. No comments were received from the public. Motion by Mrs. Rosenswie, seconded by Mr. Harmon, to close the public hearing and grant a variance for property located at 4135 Seneca Street to allow outdoor patio; noting that the tent is to be located in the southwest corner and the roped off area in the northeast corner.
2008-053 Joga Singh, Unionmart, Inc., 3502 Clinton Street, stated he has had ongoing problems with children in the area jumping the fence and causing general mischief on the property. He is requesting the fence to eliminate these problems. The applicant’s fence contractor stated the fence ends approximately 10 ft before the street. Neighborhood kids are jumping the fence and doing damage to vehicles. They have also been caught drinking at the back and items have been stolen, including an extension ladder. William Czuprynski, Code Enforcement Officer, stated the applicant is allowed to go 10 ft past the building with a 4 ft fence. The entire fence should be 4 ft high except for the 16 ft portion from the back of the property and then it has to drop down to 4 ft. Mr. Bond noted the fence is already erected and the problem that has arisen is that it blocks the view of the neighboring business, Fox Equipment. Mr. Singh’s fence contractor replied that a building permit had already been issued for the fence and they were subsequently advised that a mistake had been made. He further stated that no one’s vision is being blocked by the fence.
2008-053 (Continued) Burton Monin, Fox Equipment, 2041 Union Road, submitted photographs of the fence, noting it extends more than 35 ft. He had no objections to the fence as long as it did not violate any building code. His objection is to the length and height of the fence. The fence is blocking off the view of his building and it is difficult to read the name of his business. Mr. Harmon suggested a tiered fence, beginning at 6 ft and then tiered down to 4 ft. Mrs. Price noted that the photographs do reflect the fence blocking the front view of Fox Equipment. Mr. Bond suggested removing the first two sections of fence and replacing that portion with a chain link fence. The fence is cemented in and changing it now would entail considerable work. Mr. Singh’s fence contractor responded that the applicant has already invested $800.00 after being issued the building permit. Motion by Mr. Harmon, seconded by Mrs. Price, to close the public hearing and grant a variance for property located at 3502 Clinton Street to allow the existing fence but cut down in height from 6 ft to 4 ft to a point at the beginning of the next door neighbor’s building. Motion by Mr. Hughes, seconded by Mr. Bond, to amend the previous motion and direct applicant to remove at least 8 ft from the fence and then reduce the fence to 4 ft to the beginning of the building. On the question, discussion among the members, applicant, and Mr. Monin followed. Motion by Mrs. Rosenswie, seconded by Mrs. Price, to rescind the previous motions and allow the applicant and Mr. Monin to discuss their individual issues with Mr. Notaro and then return with a possible solution.
2008-054
2008-054 (Continued) Kevin & Donna Schaumloefel appeared on the request. Mr. Schaumloefel stated there is an existing 18 ft x 20 ft garage. The garage was built in 1929 and in deteriorated condition. They would like to replace that with a new 22 ft x 22 ft garage. Mr. Bond inquired why the applicant was unable to comply with the ordinance. Mr. Schaumloefel replied that would place him too close to the swimming pool which is 10 ft from the house. Letters of no objection were submitted from residents at 30 Inter Drive, 20 Inter Drive, and 3362 Clinton Street. No comments were heard from the public. Motion by Mr. Hughes, seconded by Mrs. Rosenswie, to close the public hearing and grant a variance for property located at 22 Inter Drive to allow reduction in side and rear setbacks.
2008-055 Shawn Copella, 1310 Seneca Creek Road, stated the property at 120 South Avenue was recently purchased and he needs a few years time before going to a concrete driveway and parking area. The company is a commercial floor covering business and he would like to park company owned vehicles on the stone driveway until the driveway can be hard surfaced. Four letters explaining the request were sent out with two letters of no objection received; one from the resident at 1253 Indian Church Road and the second from the owner of the adjoining property on South Avenue. No comments were heard from the public. Motion by Mr. Harmon, seconded by Mrs. Price, to close the public hearing and grant a variance for property located at 120 South Avenue to allow parking of vehicles for a period of two years.
2008-056 Mr. Bond noted the concern of the Zoning Board has been to ensure the safety of children who may run from the deck into the pool. Mrs. Kolb replied that there will be a gate between the main deck and the pool and also a pool alarm, as required by NYS law. Letters of no objection were submitted from residents at 11 Pine Valley, 3 Pine Valley, and 163 Mill Road. No comments were received from the public. Motion by Mr. Hughes, seconded by Mrs. Price, to close the public hearing and grant a variance for property located at 7 Pine Valley Ct to allow setback reduction for accessory structure, and referred to the applicants’ application which also enumerated medical issues in support of a hardship claim.
2008-057 Mr. Bond noted that Avenue A which is adjacent to applicant’s lot is a paper street, making the side of applicant’s property her front yard. Ms. Addeo stated the paper street has never been developed and they are in the process of attempting a purchase of it. There is also a subdivision behind their property which effectively shuts the street off. Mr. Hughes inquired why applicant felt a 6 ft fence was necessary. Ms. Addeo stated they have a large dog and would like the additional privacy. Letters of no objection were submitted from adjoining neighbors.
2008-057 (Continued) 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 38 Holland Avenue to erect 6 ft fence in exterior side yard.
2008-058 Michael Stachowski, attorney for applicant, stated the property is 1.5 acres in size with a 60 ft driveway large enough for a private road. The applicant would like to eventually build two homes. Mr. Bond suggested the applicant consider a subdivision on the land. Mr. Stachowski replied there was not enough frontage for a subdivision. Issues of a possible subdivision were discussed with the Board members. Motion by Mr. Bond, seconded by Mrs. Price, to table this item generally to give the applicant an opportunity to appear before the Planning Board relative to a possible subdivision for the land.
2008-059 Constance Pikul, 47 Manhassett Street, stated her property is a corner lot at Manhasset and Duerstein. There was an existing fence when she purchased the property, but the fence was damaged by the October 2006 storm and an auto accident. The fence has been removed and she would like to replace it with a new fence. She also commented on criminal activity in close proximity to her home and was concerned for the safety of her daughters. There are existing shrubs 6 ft high and the proposed 6 ft fence will be installed inside the shrubs so that the fence is not visible from the street. The 4 ft portion of the proposed fence will be located in front of the house.
2008-059 (Continued) Mr. Bond noted that shrubbery is technically considered a fence and its height is already in violation of the code. Ms. Pikul commented on the need for the fence to confine her dogs and also the serious nature of the criminal activity nearby. She stated that she never would have purchased the property if she had been aware of the situation. Motion by Mr. Harmon, seconded by Mrs. Rosenswie, to close the public hearing and grant a variance for property located at 47 Manhassett Street to erect stockade style privacy fence as requested.
2008-053 Deputy Town Attorney Notaro stated that the applicant and his fence contracter met with Mr. Monin and have come to an agreement on the fence. The fence will be reduced to 4 ft from the front of Mr. Monin’s brick garage forward for a period of one month. At the conclusion of one month, if a visibility problems exists with the first section of 4 ft fence, its removal will be discretionary on the part of the Deputy Town Attorney. 2008-060 Patricia C. DePasquale, 29 Woodbine Avenue, stated she would like to attach a pool to the existing wooden deck. There is a drain running through the center of the back yard, making this the only viable location for the pool. There will be a locking safety gate and all safety devices as required by NYS law for pools. Letters of no objection were submitted from residents at 33 Woodbine Avenue, 204 North and 212 North Avenue. No comments were received from the public.
2008-060 (Continued) Motion by Mrs. Rosenswie, seconded by Mrs. Price, to close the public hearing and grant a variance for property located at 29 Woodbine Avenue to erect above ground pool attached to existing deck.
ADJOURNMENT: Motion by Mr. Harmon, seconded by Mrs. Price, to close the public hearing and adjourn the meeting (9:00 p.m.).
Respectfully submitted, Patricia C. DePasquale, RMC/CMC For additional information, suggestions, or problems, please contact our Webmaster.
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