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West Seneca Zoning Board of Appeals Meeting Minutes 08/26/2009
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 August 26, 2009 at 7:00 PM, followed by the Pledge of Allegiance. ROLL CALL: Present -
Sandra Giese Rosenswie Michael Hughes Michael Harmon David Monolopolus Shawn P. Martin, Town Attorney William Czuprynski, Code Enforcement Officer Excused - None OPENING OF PUBLIC HEARING Motion by Mr. Monolopolus, seconded by Mr. Harmon, to open the Public Hearing.
APPROVAL OF PROOFS OF PUBLICATION Motion by Mr. Hughes, seconded by Mrs. Rosenswie, to approve the proofs of publication and posting of legal notice.
APPROVAL OF MINUTES Motion by Mr. Harmon, seconded by Mr. Hughes, to approve Minutes #2009-07, July 22, 2009. On the question, Mr. Bond noted the minutes from the July meeting need to be amended in order to reflect the graduating height of the panels of fence in Item 2009-055 Request of Don Wright for a variance for property located at 31 Cove Creek Run to erect 8' fence in rear yard. Motion by Mr. Monolopolus, seconded by Mr. Harmon, to amend the minutes of the July 22, 2009 meeting to grant a variance for property located at 31 Cove Creek Run to allow fencing along the side of the house as follows: one panel of fence 8 feet high; the second panel of fence 7 feet high; and the third panel of fence 6 feet high with regard to Item #2009-055.
TABLED ITEMS: 2009-046 Motion by Mr. Harmon, seconded by Mr. Hughes, to remove this item from the table.
Applicant was not present; item held for the end of the meeting. 2009-049 Motion by Mr. Harmon, seconded by Mr. Hughes, to remove this item from the table.
Mr. Bond noted the absence of the applicant. Justin Harmon, 465 Seneca Creek Road, stated that based on its size, the proposed garage could turn into a business, resulting in more cars and more noise. Sunlight and view would be blocked by the size of the garage, negatively affecting their property value. The garage is larger than his house and they would not have purchased their property if the proposed garage was present at that time. Looking out from his deck, the proposed garage would be right in his view. Motion by Mr. Hughes, seconded by Mr. Bond, to table this item until the end of the meeting.
NEW BUSINESS:
2009-059 Lisa Krue, 817 East & West Road, representing North Pines Construction Inc. stated the applicant would like to erect a deck 22 feet from the rear property line. There is an easement behind the property line. Letters from the three adjoining property owners indicating no objection were submitted, and the homeowners association did approve the request. Mr. Harmon noted he is the property manager and confirmed that approval was given. No comments were heard from the public. Motion by Mrs. Rosenswie, seconded by Mr. Hughes, to close the public hearing and grant a variance for property located at 9 Glenfield, to erect rear deck 22 feet from rear property line, based on the approval granted by the homeowners association.
2009-060 Sean Tober, 24 Park Meadow Drive, stated 1327 Orchard Park Road was purchased in April. It is a vacant lot and zoned C-2. He thought it was owned by the school at the time but learned there is residential property behind it. It was his understanding that the property was commercial and then rezoned to residential several years ago. Mr. Czuprynski stated nothing was rezoned and questioned whether it was actually owned by the school. Mr. Tober stated he spoke with the gentleman behind him who confirmed that he owned the property. A letter of no objection was
2009-060 (Continued) also submitted by Mark and Kathleen Wroblewski of 4 Sunset Creek. Mr. Czuprynski suggested tabling this item until he could ascertain the correct owner and zoning of the adjoining property. Mr. Bond also questioned the distance between the buildings which appears to be 5.73 feet, and the ordinance requires 10 feet. The survey was reviewed with the applicant with Mr. Bond explaining that the ordinance requires 10 feet and there is only 5 ½ feet provided. The applicant was asked if this is a pre-fab type building. Mr. Tober stated it was a wood frame pole barn type structure built on site. Mr. Bond questioned whether the applicant could notch the corner 3 feet by 6 feet, and lose about 30 square feet. Mr. Tober stated he couldn’t move any closer to the road because of the setback from the road and the parking ordinance. Mr. Bond stated that on the side lot line, there is 5 feet from the back corner of the property, so the office would either have to be shortened by 3.63 feet or the storage area shortened. Mr. Harmon stated he would have to shorten both the storage and the office because it would still be close to the retail. Mr. Tober indicated he is already squeezing in a lot. This will be a retail seasonal floral facility along with a garden and lawn business which is operating now. The building will be used to store trailers, lawnmowers, a small Bobcat and some garden supplies. Mr. Bond noted one variance could be granted, but the Building Inspector will not give a permit. This would have to be reconfigured or the applicant will have to return for another variance.
2009-060 (Continued)
Mr. Tober stated he would like to complete the construction in November in order to open in the spring. Mr. Harmon noted he would rather see a variance granted for the other side yard to the left and move the office and retail over. Mr. Czuprynski noted other problems and discussion followed on the options available to the applicant. No comments were received from the public. Motion by Mr. Bond, seconded by Mr. Hughes, to table this item until the end of the meeting for the Building Inspector to review the plans and meet with the applicant, and determine the ownership of the adjoining property.
2009-061 Salvatore A. Bonafede, 399 Seneca Creek Road, appeared on the request. Mr. Bond stated it was his understanding that the applicant is requesting a 6 ft high stockade fence along the side of the house all the way out to the front. Mr. Bonafede stated that was correct. The contractor advised him the fence would cost the same amount for a 6 ft fence as a 4 ft fence, but he could only go 10 ft past the house. Mr. Bond noted that the sketch submitted shows a 6 ft fence going to the front of the house. Mr. Bonafede stated he would like to go 10 ft past the front of the house with a 6 ft fence.
2009-061 (Continued)
Mr. Bond noted there is already a bush at least 6 ft high and going all the way to the front of the house which applicant is proposing to replace with a fence. Mr. Bonafede stated he has an alarm system in his house. The next door neighbor allows her dogs to run through his yard, setting off that alarm. There is loud music. He received a warning after smoke from her grill set off his fire alarm on several occasions. After he spoke with her, there have been several incidents of damage to his property. He is attempting to protect his home and has been on medication. These problems have been ongoing for six years. Mr. Bond stated he is not unsympathetic but failed to see where a 6 ft fence would resolve the problems when there is already 6 ft high hedge that has not resolved the applicant’s problems. Mr. Bonafede replied that in the winter the leaves fall from the hedge and it doesn’t hold off the noise or stop the neighbor’s dog from coming through. His van sustained damage with a knife which the police responded to, but he was told they could do nothing unless it was substantiated with pictures. Letters of no objection were submitted from 409 Seneca Creek Road and 379 Seneca Creek Road. Mr. Bond stated he advised the next door neighbor of the variance being requested when he physically visited the property. Everett Cole, 379 Seneca Creek Road, stated he has witnessed slamming of doors, nails in the applicant’s driveway. He has had problems with the same neighbor with the dog. Mr. Cole confirmed the validity of the noise and other issues of which the applicant has complained. Mr. Harmon stated he had no objection to the applicant having a 6 ft high fence on the side as long as the fence stopped at the front of the house. Mr. Cole has collaborated the problems of the applicant.
2009-061 (Continued) Motion by Mr. Harmon, seconded by Mr. Bond, to close the public hearing and grant a variance for property located at 399 Seneca Creek Road to erect 6 ft high fence alongside the driveway side of the house a distance of 30.45 feet from the back of the house to the front of the house, but not past the front of the house.
2009-060 Mr. Czuprynski stated the property in question is not part of the subdivision and the ownership is unclear. Motion by Mr. Bond, seconded by Mrs. Rosenswie, to close the public hearing and grant a variance for property located at 1327 Orchard Park Road to erect storage building 5 feet from rear property line.
2009-062 Michael Carr, 30 Florence Avenue, stated he would like to erect a deck on the front of the house, 8 feet from the front property line. Mr. Bond noted that in viewing the area there are a number of decks on the front of houses and applicant is not going out any farther than most of the people in the neighborhood. Applicant was asked if he would be roofing the deck in the future. Mr. Carr stated he would not be roofing the deck. Letters of no objection were submitted from residents at 33 Florence Avenue, 40 Florence Avenue and the neighbor immediately adjacent to the right of applicant’s property.
2009-062 (Continued) 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 30 Florence Avenue to construct deck 18 feet from property line.
2009-063 Ralph Lorigo, Esq., 101 Slade Avenue, stated this project involves the construction for the Federal Credit Union at 1937 Union Road. The survey shows a fancier type of pillar at the end of the lot. The main wall is 30 feet back but the pillars extend out 6 inches requiring a variance. Mr. Bond inquired if there was a problem locating the property line. Mr. Lorigo stated that when the property was acquired, there was an unrecorded easement through the center of the property for a sewer line which created problems requiring additional site work. The subcontractor made the 6 inch mistake on the offsets on the ends of the building. A letter of no objection was submitted from Longin Kempskio, the resident at 25 Race Street
No comments were received from the public. Motion by Mr. Hughes, seconded by Mrs. Rosenswie, to close the public hearing and grant a variance for property located at 1937 Union Road to allow 29.42 ft backyard setback.
2009-064
2009-064 (Continued)
Ralph Lorigo, Esq., 101 Slade Avenue, stated the application is for an interpretation of the decision of the Building Inspector. The Building Department claims separate driveways are required. He is unaware of anything in the code requiring a driveway or separate driveways. The intention here is to use one driveway for both lots with an easement. There are separate utilities. The driveway is 30 ft wide. Mr. Martin cited 120.29 B (1)(c) which defines flag lots as having frontage for a driveway servicing the main potion of the lot which is some distance back from the street and which meets all other zoning requirements may be allowed in R Districts, provided that the minimum street front is 40 feet. In this case, it’s 30 feet. Mr. Lorigo responded that is the section allowing flag lots. There is no section in the code that says there must be a specific driveway to a house, and certainly not in flag lots. The interpretation here is whether or not two separate driveways are needed. This is a 14 acre parcel, of which a 2.6 acre parcel has been carved off for a second house. This is a brother and sister situation and there can be an easement. The flag lot required 80 feet and a variance was granted for 66 feet. The interpretation requested is whether the applicant is entitled to have one driveway to the back of the property. Mr. Martin stated that the Court decided 33 feet frontage was sufficient. Mr. Bond questioned the width required for a separate driveway. Mr. Czuprynski responded 12 feet. Mr. Bond stated there will be one driveway 30 feet, instead of two separate driveways 12 feet wide. Mrs. Rosenswie suggested dividing the driveway and eliminating the question.
2009-064 (Continued)
Mr. Lorigo stated there are a number of similar type driveways in Elma. There would still be a question because the driveway is not straight, but meanders from one portion to the other. Mr. Czuprynski stated that when the ordinance on flag lots was written, the intent was that every lot would have its own driveway. He referenced subdivisions where if using the same argument, there could be driveways for every two houses. Mr. Lorigo stated the definition section is there to interpret a flag lot, but the code section itself simply refers to the fact that you can have the reduced frontage and the driveway referenced in the definition section simply refers to that narrower frontage because it’s set up as 40 feet. Mr. Czuprynski noted that in past situations, it was learned that these driveways working in conjunction with one another, do not work. These people are brother and sister but may have a disagreement in the future. Mr. Lorigo stated there will be a recorded driveway easement. Motion by Mrs. Rosenswie, seconded by Mr. Monolopolus, to table this item until the recorded easement is obtained.
Mr. Bond noted the issue here is one of interpretation and whether to overrule the Building Inspector’s interpretation and allow one 30 ft driveway. Motion by Mrs. Rosenswie, to uphold the interpretation of the Code Enforcement Officer. Motion lost for lack of second
2009-064 (Continued)
Motion by Mr. Bond, seconded by Mr. Hughes, to overrule the decision of the Code Enforcement Officer and allow one 30 ft driveway with a recorded easement for the other property. On the question, Mr. Bond stated there may be some problem in the future, but that problem rests with the people living there. It is his opinion that when there is a zoning ordinance which is in derogation of the common law, it must be strictly construed against the people making the ordinance, which in this case is the Town.
2009-065 Edward Szadkowski, 104 Pacecrest, appeared on the request for the variance. Mr. Bond noted that he had visited the property and Mr. Szadkowski apparently did not realize he needed a building permit to build an entrance on the side which extended 6 feet into the side yard setback. He also noted that Mr. Szadkowski did not realize he needed letters from the neighbors, but this is a corner lot. No comments were heard from the public. Motion by Mrs. Rosenswie, seconded by Mr. Hughes, to close the public hearing and grant a variance for property located at 104 Pacecrest Ct to erect structure in exterior side yard 24 ft from property line.
2009-066
Mr. Bond stated that the applicant requested this item be tabled. Motion by Mrs. Rosenswie, seconded by Mr. Bond, to table this item until the September meeting.
2009-049 Motion by Mr. Harman, seconded by Mrs. Rosenswie, to remove this item from the table.
Mr. Bond noted this is the second meeting at which the applicant has failed to appear. The public has been heard on the request which he also noted to be substantial, an increase from 12 feet to 20 feet, or 60%. Motion by Mr. Hughes, seconded by Mrs. Rosenswie, to close the public hearing and deny the request for a variance for property located at 461 Seneca Creek Road to increase height of garage to 20 feet. On the question, Mr. Bond stated this would present an undesirable change to the area, the requested variance is substantial in nature, and would have an adverse affect on the neighborhood.
2009-046 Mr. Bond noted this is the second consecutive meeting at which the applicant has failed to appear. Motion by Mr. Monolopolous, seconded by Mr. Hughes, to table this item until the September meeting.
ADJOURNMENT: Motion by Mr. Hughes, seconded by Mr. Harmon, to close the public hearing and adjourn the meeting (8:20 p.m.).
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