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OPENING OF PUBLIC HEARING:

Motion by Mr. Dunn, seconded by Mrs. Price, to open the Public Hearing.

APPROVAL OF PROOFS OF PUBLICATION:

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

APPROVAL OF MINUTES #2007-01:

NEW BUSINESS:

2007-003
Request of FRA Engineering for a variance for property located at 502 Mineral Springs Road for a reduction in the required parking spaces and for a 140.5 sq ft pedestal sign 30 ft in height.

WEST SENECA TOWN OFFICES		ZONING BOARD OF APPEALS
1250 Union Road		Minutes #2007-02
West Seneca, NY 14224		March 28, 2007
Page two . . .

Mr. Bond noted that the applicant, FRA Engineering, has withdrawn its request for variances for a reduction in required parking spaces and for the the pedestal sign, leaving only the request for an interpretation of the zoning ordinance. Code Enforcement Officer William Czuprynski has made a determination of the number of parking spaces required under the Town’s ordinance and the applicant has taken issue with the decision and is requesting this Board to overturn the decision of the Code Enforcement Officer.

Mr. Czuprynski stated that the town code does not cover this particular project, but different classifications must meet different parking requirements under the town’s ordinance. Shopping centers or stores over 20,000 sq ft require 5 spaces for each 1,000 sq ft of floor area; grocery or supermarkets require 10 spaces for each 1,000 sq ft of gross floor area. Since the proposed store is split into different uses, with part of the store being used for retail and part for grocery and supermarket, the parking spaces were calculated according to the sq ft for each use per the plans submitted by the applicant. He determined the required parking spaces to be 160 over the code requirement.

Drew Reilly, Wendel Duchscherer, Town Planner, stated he acts as town planning consultant for several different communities. He consulted with Mr. Czuprynski concerning his interpretation. Other communities have similar codes for standard retail and large shopping centers requirements. Similar interpretations have been rendered in other communities with similar stand alone buildings where a large grocery store has a very different parking requirement than that part of the store that has a large retail section. The reason town codes are drawn this way is that it would not make sense if there was a large shopping center and a number of other uses that may have very stringent parking requirements. In that event, everyone would want to consider themselves a large shopping center with reduced parking. In those cases with large buildings, municipalities tend to interpret the parking depending on the different uses. It was his opinion that the Code Enforcement Officer was correct in his interpretation of the code.

Kelly Pronti, Esq., Harter Secrest & Emery, 1600 Bausch & Lomb Place, Rochester, New York, appeared on behalf of their client, Wal-Mart. The proposed project contemplates the construction of an approximate 149,000 sq ft supercenter and Wal-Mart is requesting an interpretation pursuant to

the code. As stated, Mr. Czuprynski issued an interpretation of the code which separated the areas of the proposed project into the square footage to be used for retail as well as the square footage to be used for grocery. This resulted in the calculation of parking spaces partially based on the requirements applicable to retail stores and partially applicable to grocery stores. The Town of West Seneca code does provide the requirement of 5 spaces per 1,000 sq ft area for shopping centers or stores over 20,000 sq ft. Therefore, based on a plain reading of the code, the parking requirement for stores over 20,000 sq ft should apply rather than applying the requirements for individual retail stores and grocery stores. The combination of two sections of the code where one section clearly applies to this particular project is not an appropriate interpretation. Furthermore, under the Code Enforcement Officer’s interpretation, one could also go so far as to require a different parking ratio for each component of this particular retail store. The Wal-Mart supercenter typically has not only retail and grocery, but also includes a bank, restaurant, storage, and an eating establishment. If the Code Enforcement Officer’s interpretation were applied, each use would have to be separated out, resulting in a different parking ratio and different total parking numbers required for the particular project. It is their opinion that this is a strained interpretation of the code and they feel one particular section of the code does in fact apply to this project. The petitioner is requesting that the Zoning Board of Appeals issue an interpretation that the Wal-Mart supercenter is classified as a store over 20,000 sq ft. Under Mr. Czuprynski’s interpretation, Wal-Mart would have to obtain a variance for 167 parking spaces, whereas under their interpretation, Wal-Mart would still have to obtain a variance for 22 spaces.

Mr. Czuprynski referred to different uses of a store and stated that is the way it would be interpreted by him. For example, if part of a store was used for automotive, a different parking ratio would be applied than the calculation used for the retail part of the store. Different uses are classified with different parking requirements.

Ms. Pronti asked how the town considers other stores, i.e. K-Mart, which includes both retail and grocery components. She did not believe that K-Mart was required to follow the same stringent parking requirements.

Mr. Czyprynski stated it is treated in the same manner as Wal-Mart, with a certain number of square feet required for the retail area and for the grocery area.

Ms. Pronti stated she did not find that to be the case in her review and inquiry.

Mr. Czuprynski asked if her inquiry had been made to him.

Ms. Pronti stated it had not, but she believed FRA Engineering had made an inquiry to Mr. Czuprynski.

Mr. Czuprynski stated FRA Engineering had not contacted him.

Motion by Mr. Hughes, seconded by Mr. Dunn, to reserve decision on the interpretation of the Code Enforcement Officer.

On the question, Mr. Hughes stated additional time was needed to discuss this matter with the Code Enforcement Officer. Mr. Bond stated a written decision would be issued.

2007-004
Request of Janice E. Dalbo, Winchester Community Church, for a variance for property located at 909 Harlem Road to erect an oversized pedestal sign without sufficient ground clearance.

Janis Dalbo, 105 Collins Avenue, represented Winchester Community Church. She stated their intention was to replace the existing temporary flashing sign in front of the church with a permanent sign. The sign selected is identical to the Winchester Fire Company sign. The Church was informed a variance was needed because the sign has a brick base. Mrs. Dalbo indicated on the survey where the sign would be located. They have discovered that the entire grass area belongs to the County. Their lot line is where the fence is and the sign will be installed on their own property. The center part of the fence will be taken down. The requirement is 10 ft but Advison has requested they ask for 1 ft. within the lot line.

Mr. Bond stated his concern was for visibility pulling in and out and asked if the sign would be near an ingress or egress.

Mrs. Dalbo stated it would be located half-way in that portion of the property. The existing temporary sign is actually on County property and t hey are asking for 1 ft from the property line, rather than the required 10 ft.

Mr. Dunn noted that even 1 ft from the property line would allow the sign to be 10 ft back from the street.

Mrs. Dalbo submitted a consent from Holiday’s NiteClub for the variance requested.

Motion by Mr. Dunn, seconded by Mrs. Rosenswie, to close the public hearing and grant a variance for property located at 909 Harlem Road to erect an oversized pedestal sign without sufficient ground clearance.

2007-005
Request of Nutto’s, 3807 Seneca Street, for a variance for property located at 3807 Seneca Street to erect a sign 68 sq ft with message board.

Joseph Alfieri, Vice President, Nutto’s, 3807 Seneca Street, stated he is seeking a variance to upgrade the existing sign with larger letters and a message board. The square footage is slightly smaller than the existing sign.

Mr. Dunn asked if it included the message board.

Mr. Alfieri state it would include the message board and submitted a photo of the existing sign and a rendering of the proposed sign.

Mr. Hughes asked if a variance had been granted for the existing sign.

Mr. Alfieri stated the existing sign was already there in 1988 and he assumed it had a variance.

Mr. Bond noted that the sign ordinance was probably not in effect when the original sign was erected.

No comments were received from the public.

Mr. Alfieri submitted a letter of no objection from Agthe Dental, the adjacent neighbor to the right of applicant. The property to the left is vacant.

Motion by Mrs. Price, seconded by Mr. Hughes, to close the public hearing and grant a variance for property located at 3807 Seneca Street to

erect a sign 68 sq ft with message board in the same location as the existing sign.

On the question, Mr. Bond noted he is voting in favor only because it is replacing an existing sign and is actually down-sized from the current sign.

2007-007
Request of James P. Sudyn for a variance for property located at 119 Boncroft Drive to extend roof over existing patio 6 ft into rear yard setback.

James Sudyn, 119 Boncroft Drive, stated there is an existing patio on the property and he is requesting to extend the roof out 12 ft over the patio, which is the entire length of the patio.

Mr. Bond asked the Code Enforcement Officer if the property had already been given a variance to extend into the rear setback.

Mr. Czuprynski stated he was unaware if there was a previous variance, but anything new done to the property would still require a variance. The existing patio did not require a variance because there was no roof on it.

No comments were received from the public.

Letters of no objection were submitted from residents of 125 Boncroft, 51 Century and 55 Century.

Motion by Mr. Dunn, seconded by Mrs. Rosenswie, to close the public hearing and grant a variance for property located at 119 Boncroft Drive to extend roof over existing patio 6 ft into rear yard setback.

2007-008
Request of Matthew & Wendy Steiner for a variance for property located at 665 Main Street to install fence on elevated land 30 ft from road.

Matthew and Wendy Steiner, 665 Main Street, appeared on the request for a variance. Mr. Steiner stated they would like to erect a fence on the side of the property adjacent to Mill Road, about 12 ft from the road. The ordinance requires 30 ft.

Mr. Bond noted the fence would be starting at the rear of the house and angling out. This is a corner lot which requires 30 ft. Petitioners are requesting 10 to 12 ft, but would have to be approved for one or the other.

Mrs. Steiner stated their property is naturally elevated. The back yard is approximately 3 ft above Mill Road.

Mr. Bond stated that it appears the fence will not prove an obstruction to the sight of those making a left from Main onto Mill.

Mr. Steiner agreed, stating that this is far enough back that it will be well past the turn before the fence is even visible.

Mr. Dunn noted that if this house was in the middle of the lot, there would be no need for a variance.

Mr. Bond also noted the sight line to be of foremost concern to the Board and it appears the fence will not present a problem.

No comments were received from the public.

Mr. Steiner stated that letters of no objection could not be obtained because the property to the right has foreclosed on by the bank and the owner no longer lives there. The neighbor on the other side is the West Seneca Historical Museum.

Motion by Mr. Bond, seconded by Mr. Dunn, to close the public hearing and grant a variance for property located at 665 Main Street to install fence on elevated land 30 ft from road.

2007-009
Request of Joseph & Daughn Quinlivan for a variance for property located at 45 Harwood Road to attach deck to house and above ground pool.

Joseph Quinlivan, 45 Harwood Road, stated he is requesting to erect a deck from the house to an existing pool.

Mr. Dunn asked if the petitioner had plans for a gate between the pool and the house itself for safety purposes.

Mr. Quinlivan stated there is a walk-out to the deck with a gate.

Mr. Dunn noted that automatic closing hinges are also necessary.

Mr. Bond asked if the patio was covered.

Mr. Quinlivan stated it was a slab with no cover.

Mrs. Price asked if the deck was 4 ft high.

Mr. Quinlivan stated the deck would be about 3 ft high.

Mr. Hughes asked if petitioner had a pool alarm.

Mr. Quinlivan displayed the pool alarm in his possession.

Mrs. Price asked if there would be steps from the patio up to the deck.

Mr. Quinlivan stated there would be and that will also be gated. A letter of no objection from the neighbor at 39 Harwood Road was submitted, but petitioner stated the neighbor on the other side was in Florida and he was unable to obtain a letter from them. He will submit one to the town clerk when the neighbors return home from Florida.

No comments were received from the public.

Motion by Mrs. Rosenswie, seconded by Mr. Dunn, to close the public hearing and grant a variance for property located at 45 Harwood Road to attach deck to house and above ground pool, with the stipulation that a pool alarm must be in use and locking gates installed.

2007-010
Request of Louis A. Mustillo, Jr. for a variance for property located at 50 Harwood Road to erect above ground pool attaching to existing deck.

Louis Mustillo, 50 Harwood Road, stated there is an existing deck and he will be purchasing a pool that will attach to the deck. The yard is fenced and he has already purchased a pool alarm. Letters of no objection from neighbors at 40 Harwood Road and 56 Harwood Road were submitted.

Mrs. Price asked if the deck already has gates.

Mr. Mustillo stated that was correct. There are two entrances to the deck and both self closing latches.

Mrs. Price asked if there will be another gate for the pool.

Mr. Mustillo stated he will take a section of the rail out and there will be the same self closing latch.

No comments were received from the public.

Motion by Mr. Dunn, seconded by Mrs. Price, to close the public hearing and grant a variance for property located at 50 Harwood Road to erect above ground pool attaching to existing deck, with the stipulation that a pool alarm must be in use and locking gates installed.

2007-03
Request of FRA Engineering for a variance for property located at 502 Mineral Springs Road for a reduction in the required parking spaces and for a 140.5 sq ft pedestal sign 30 ft in height.

2007-04

THE ZONING BOARD OF APPEALS MET IN THE CAUCUS ROOM FOLLOWING THE REGULAR MEETING AND RENDERED THE FOLLOWING DECISION:

FRA Engineering with offices located at 530 Summit Point Drive, Henrietta, New York 14467 filed an application to the Board of Appeals relating to the property located at 502 Mineral Spring Road, West Seneca, Erie County, New York.

The application initially requested a variance to the Zoning Ordinance relating to a reduction in required parking spaces and an increase in the allowable size of a pedestal sign. That portion of the application was withdrawn.

The application also requested an interpretation of the Zoning Ordinance based upon the Code Enforcement Officer’s interpretation of the required parking spaces under Section 120.41 of the Town Ordinance.

In addition, attorney Kelly A. Ponti of the law firm of Harter Secrest & Emery LLP, 1600 Bausch & Lomb Place, Rochester, New York 14604 submitted a letter dated February 13, 2007 as a supplement and additional information to the application.

The matter was heard by the West Seneca Zoning Board of Appeals at its scheduled meeting on March 28, 2007.

Code Enforcement Officer William Czuprynski testified that the Town Ordinance does not specifically cover the proposed “supercenter”. He based his required number of parking spaces upon the percentage of the total square footage of the building to be used as a grocery store at 10 spaces per 1000 square feet and the balance at 5 spaces per 1000 square feet. He indicated that this was a fair allocation of space for the required parking spaces.

He further indicated that he had allocated parking requirements at other locations in town, although the town has never specifically dealt with a “supercenter”.

Also, Andrew C. Reilly, P.E. AICP of Wendel Duchscherer Architects & Engineers, the Town Planner, advised that the Town Ordinance did not address parking requirements for a supercenter. As planner for a number of other municipalities, he advised that other towns have applied a percentage formula when the ordinance did not address the point. He felt that the Code Enforcement Officer’s interpretation was reasonable.

Attorney Kelly A. Ponti of the law firm Harter Secrest & Emery LLP spoke on behalf of the petitioner. She indicated that the experience of her client showed that fewer parking spaces than required by a reading of the ordinance allocating 5 spaces per 1000 square feet was adequate. She indicated that in as much as the Ordinance did not address the “supercenter” proposal, the Town should use 5 spaces per 1000 square feet as found in the ordinance relating to retail space over 20,000 square feet.

After due deliberation, the West Seneca Zoning Board of Appeals unanimously affirms the interpretation of the Code Enforcement Officer.

The petitioner by their own admission and in the letter from their attorney, indicates that neither application of the ordinance appropriately describes the supercenter.

It is the opinion of the Board that to apply an interpretation of the ordinance for a “store over 20,000 square feet” in inadequate. The ordinance reads stores.

By combining the provisions of the ordinance and allocating the required space on a percentage basis seems fair and reasonable under the circumstances.

Also, even if the Board were to agree with the petitioner, a variance to lessen the required spaces would still be required.

ADJOURNMENT:

Motion by Mrs. Price, seconded by Mr. Dunn, to close the public hearing and adjourn the meeting (8:15 p.m.).

Respectfully submitted,

Patricia C. DePasquale, RMC/CMC
Recording Secretary