Town of Hamburg Board of Zoning Appeals Meeting July 2, 2013 Minutes

Transcription

1 Town of Hamburg Board of Zoning Appeals Meeting July 2, 2013 Minutes The Town of Hamburg Board of Zoning Appeals met for a Regular Meeting on Tuesday, July 2, 2013 at 7:00 P.M. in Room 7B of Hamburg Town Hall, 6100 South Park Avenue. Those attending included Chairman Brad Rybczynski, Commissioner Bob Ginnetti, Commissioner Louis Chiacchia, Commissioner Shawn Connelly, Commissioner Paul Eustace and Commissioner Joseph Sacco. Others in attendance included Attorney Joseph Shaw, Planning Consultant Sarah desjardins and Councilwoman Amy Ziegler. Excused: Commissioner Richard Dimpfl Chairman Rybczynski asked for a moment of silence in honor of our troops who have paid the ultimate sacrifice. Commissioner Eustace read the Legal Notice of Public Hearing. Tabled Application # 5422 Pete Guadagno Requesting a use variance to allow a third dwelling unit at 6720 Gowanda State Road Chairman Rybczynski stated that the application had been withdrawn. He read the following letter received by the Board from Peter Guadagno: This letter is to advise you that we are withdrawing our request for a third dwelling variance at 6720 Gowanda State Road and are preparing to conform to the two-family Code status that is currently in place. FINDINGS: Chairman Rybczynski made a MOTION, seconded by Mr. Connolly, to receive and file. Chairman Rybczynski stated that the applicant withdrew the application. All members voted in favor of the motion. Tabled Application # 5429 Erie Metro Federal Credit Union Requesting a use variance and an area variance for a proposed electronic message sign at 3291 Lakeshore Road Attorney Jeff Palumbo from Damon Morey, representing the applicant, stated that he submitted a letter to the Board that addresses the concerns the Board had relative to the factors for the use variance. This letter was made part of the official record. Attorney Palumbo stated that his letter addressed the use variance standards because the Town of Hamburg considers a request for an electronic variable message sign something that requires a use variance, although he has felt for several years that it should be an area variance instead.

2 Attorney Palumbo stated that the Small Business Association has performed a study that has concluded that these types of signs are important for safety reasons, as well as financial reasons. He noted that it is important to Erie Metro Federal Credit Union that its advertising budget be spent in the most efficient way possible, as it is a very limited budget. He further stated that studies have shown that the cost of advertising using the electronic variable message signs is much lower than other advertising options (newspaper, radio/television, etc.) and is more effective. He stated that in order to realize a reasonable rate of return, the credit union feels it is important to have this type of signage. Attorney Palumbo stated that a number of businesses in the Woodlawn area have closed, and the credit union wants to be successful. He noted that the credit union is on a very busy intersection, and often potential customers cannot find it. He stated that the proposed signage would make it much easier for people to identify the credit union building. Attorney Palumbo stated that the property is located in the NC zoning district, and a variety of uses is allowed in this zone. He noted that there are signs in all shapes and sizes in this area, and the gas station across the street from the credit union has an electronic variable message sign that displays the price of gasoline. He stated that the essential character of the neighborhood would not be adversely affected with the installation of the proposed signage. Attorney Palumbo stated that the credit union has been at this location for several years without signage, which has let to countless problems with customers trying to find the building. Regarding the requested area variance, Attorney Palumbo stated that the applicant has provided two (2) different options for the signage, both measuring 40 square feet, with one option being a pole-mounted sign and the other being a monument sign. In response to a question from Mr. Connelly, a representative of the credit union stated that the sign would identify the credit union with its logo on the top half, and the electronic variable message aspect of it would be on the lower half, which would display loan promotions, etc. He further stated that he would like to be able to put up four (4) or five (5) messages per day on a rotating basis. In response to a question from Mr. Connolly regarding whether the applicant can prove that it cannot realize a reasonable rate of return, Attorney Palumbo stated that if the credit union continues to experience this lack of recognition for its customers and the lack of the ability to compete with existing banks, the credit union will not be able to continue to exist at this site. It was determined that this credit union was formed in 1976 for employees of Bethlehem Steel. It was further determined that this credit union is considered a small credit union per the National Credit Union Agency and has an asset size of $28 million. In response to a question from Mr. Connolly regarding the Route 5 Overlay District s unique restrictions regarding signage, Attorney Palumbo stated that he has no quarrel with what the Town of Hamburg is trying to do but one must also look at the reality of each situation. He noted that he does not feel that by granting this variance, the spirit and harmony of what the Town is trying to do would be violated, because it is necessary to keep buildings from becoming vacant and it is necessary to revitalize the area. He stated that he believes that the proposed sign would enhance the area, rather than detract from it. Mr. Connolly asked if the applicant would agree to only changing the message on the proposed sign once per day (no blinking, moving, etc.). Attorney Palumbo responded that the applicant would rather have the ability to have several messages on the sign per day. He stated that the applicant would like to change the message approximately four (4) times per day.

3 Mr. Chiacchia stated that this area is more commercial than residential, and it is important to keep this business afloat. Attorney Shaw stated that the Town is currently looking at several issues regarding signage. FINDINGS: Mr. Ginnetti made a MOTION, seconded by Mr. Eustace, to approve Application # Mr. Ginnetti reviewed the area variance criteria as follows: a detriment to nearby properties will be created by the granting of the variance No, this is the only building in the neighborhood. other than a variance No. 3. Whether the requested variance is substantial Yes, because the applicant wants more traffic. environmental conditions of the neighborhood or district No, this is a large piece of property. 5. Whether the alleged difficulty was self-created No, the applicant needs more advertising space. Mr. Ginnetti reviewed the use variance criteria as follows: 1. Applicant cannot realize a reasonable rate of return, provided that the lack of return is substantial as demonstrated by competent financial evidence A business has to be seen to make money. 2. The alleged hardship is unique and does not apply to a substantial portion of the neighborhood No hardship. 3. The requested variance will not alter the essential character of the neighborhood It will not alter the character of the neighborhood. 4. The alleged hardship has not been self-created It has not been self-created. As the vote on the motion was five (5) ayes and one (1) nay (Mr. Connolly), the motion passed. GRANTED. Application # 5424 James Held Requesting an area variance for a detached accessory structure at 3638 Seventh Street James Held, applicant, stated that he is asking for a 430 sq.ft. variance to construct a pole barn on his property to be used for storage of his personal property (boats, toys and a vehicle). In response to a question from Attorney Shaw, Mr. Held stated that the pole barn will not be used for business purposes. In response to a question from Mr. Connolly, Mr. Held stated that the pole barn would be to the right (east) of the existing house if you are facing the property. He confirmed that he has combined the three (3) adjacent parcels he owns at this location.

4 Mr. Sacco stated that a shed and some trees have been recently removed from the property. Mr. Chiacchia stated that the applicant has several boats on the property and this is unsightly. He stated that the applicant is attempting to enhance his property and the area with the new structure. Mr. David Rambino, 3650 Seventh Street, stated that his property is adjacent to the applicant s property. He stated that his home is inches from the shared property line and he is concerned about the size of the proposed pole barn, the fact that it would be a steel structure, its proximity to the shared property line and the fact that the structure would block his view of the lake. Chairman Rybczynski stated that the applicant is not requesting a variance for the side yard setback because it is proposed far enough away (15 feet) from the shared property line. He noted that the Board cannot address that concern of Mr. Rambino s, but it can address his concern about the size of the structure. Mr. Rambino stated that he is concerned about the closeness of the garage to his home, especially if it is being used to storage vehicles. Chairman Rybczynski stated that unfortunately the Board cannot address Mr. Rambino s concern about the distance of the pole barn from his home. Mr. Rambino stated that he feels the proposed structure would be too large for that street and that community. He further stated that he is concerned that it would be a steel structure in a residential area. Mr. Connolly stated that this pole barn would be larger than many of the houses in the area. He further stated that this would alter the essential character of the neighborhood. In response to a question from Mr. Connolly, Mr. Held stated that the pole barn would not be pre-fabricated. Mr. Connolly responded that Mr. Held is requesting a 34% increase in the size of the structure relative to what is allowed by Code (850 sq.ft.). He noted that he feels this is substantial. Mr. Connolly asked the applicant if he could reduce the square footage of the structure somewhat and still fit his needs but not to the extent that he is requesting. Mr. Held responded that he could not. Findings: Mr. Chiacchia made a MOTION, seconded by Mr. Sacco, to approve Application # Mr. Chiacchia reviewed the area variance criteria as follows: a detriment to nearby properties will be created by the granting of the variance No, the structure will not damage the effect of the area. other than a variance No, the applicant wishes to improve his property and store equipment inside. 3. Whether the requested variance is substantial Yes, he will beautify the area. environmental conditions of the neighborhood or district No.

5 5. Whether the alleged difficulty was self-created No. Hamburg Board of Zoning Appeals Meeting July 2, 2013 Chairman Rybczynski stated that the applicant has indicated that there will be no business run out of the new structure. As the vote on the motion was five (5) ayes and one (1) nay (Mr. Connolly), the motion passed. GRANTED. Application # 5432 Care-A-Lot Child Care Center, Inc. Requesting a use variance and an area variance for a proposed addition to the existing building at 5479 Lakeshore Road Mrs. desjardins stated that this day care center is located in an R-1 zone, and the applicant received a use variance in 2003 to operate the business in the residential zone. She noted that because the applicant proposes to construct an addition to the existing building, she must obtain a use variance to extend the non-conforming use of the building. She further stated that an area variance is also being requested because the addition is proposed 20 feet from Juno Drive and 40 feet is required. Patricia Depan, applicant, stated that the business has been in operation for ten (10) years, and small day care centers are not doing well in the current climate because of the larger day care centers in the area. She noted that her business has barely broken even over those ten (10) years, and she would like to be more competitive. Mark Depan, applicant, stated that the addition would give them a larger room for pre-schoolers. He further stated that the whole property will be improved. Mr. Chiacchia stated that the applicants have renovated the building and turned the property into a successful day care center. In response to a question from Mr. Connolly, Mrs. Depan stated that the addition is proposed on the west side of the building because the east side houses the toddler and infant rooms, which she does not want to disturb. She further stated that she would like to remove the scrub trees in the area of the proposed addition, and she would like to improve the property s drainage when the addition is constructed. She noted that this would be the most economical way to achieve her goal. It was determined that a drainage easement runs under the play area and parking lot on the eastern side of the property, and therefore it would be very costly and ineffective to attempt to construct the addition on that side of the building. Chairman Rybczynski stated that there are several homes on Juno Drive that are not the required 40 feet from the road due to variances obtained and existing legal non-conforming structures. Ms. Joanne Kohler, 5497 Juno Drive, stated that she submitted a letter to the Board and she has letters from two (2) other neighbors on Juno Drive. She noted that she and her neighbors are opposed to the granting of the area variance because they do not want the character of the neighborhood altered by this building being constructed closer to Juno Drive than the adjacent homes on the street are. Ms. Kohler stated that her home is located ten (10) feet from the lot line she shares with the day care center.

6 Mrs. desjardins stated that if the area variance is granted, the proposed addition will be reviewed by the Planning Board. Chairman Rybczynski asked if the applicants have considered constructing the addition on the north side of the building (along Route 5). Mr. Depan responded that they would have to stay a certain distance away from the right of way for utilities along Route 5, so that would not be feasible. In response to a question from Mr. Connolly, Mrs. Depan stated that the addition would be 36 by 28 in size. Chairman Rybczynski stated that letters of opposition were received from Carol Robinson, 5503 Juno Drive, Andrea and Stefan Cwynar, 5492 Juno Drive and Ms. Kohler. Findings: Chairman Rybczynski stated that the neighbors concerns are valid about not wanting the day care facility to extend closer to Juno Drive than the surrounding homes do, but they did not make a strong case as to why they are opposed to the addition. Chairman Rybczynski stated that the use variance is almost a formality because the applicant was granted the original use variance previously. He noted that the real issue is whether or not an area variance should be granted for the proposed addition, which the applicant feels they need to continue to be profitable. Mr. Ginnetti made a MOTION, seconded by Mr. Chiacchia, to approve Application # Chairman Rybczynski reviewed the area variance criteria as follows: a detriment to nearby properties will be created by the granting of the variance This is really not part of the neighborhood, because it is located on Route 5. There still would be a 29-foot buffer between the day care center building and the adjacent residence on Juno Drive. other than a variance There are two easement on the property that make this the only way the applicant can increase the square footage of the building. 3. Whether the requested variance is substantial No, the proposed addition is approximately 1,000 sq. ft. environmental conditions of the neighborhood or district Constructing this addition will give the applicant the opportunity to alleviate some existing drainage issues on the property. 5. Whether the alleged difficulty was self-created It could be argued one way or another, but there is competition from larger day care center in the area and this is the evolution of the business the applicant is in. Mr. Connolly reviewed the area variance criteria as follows: a detriment to nearby properties will be created by the granting of the variance This

7 commercial property is quite close already to the adjacent residential property, and with the expansion the neighbor s view will be obstructed. other than a variance The applicant s plan is in such an early stage and the Board did explore other ways to expand, and it does seem like it may be difficult for the applicant to find a remedy. However, to approve such a substantial increase given the neighbors concerns would be premature, and the applicant should explore any other feasible methods of enlarging the building. 3. Whether the requested variance is substantial Yes, because the proposed addition is at least a 40% increase, all of which would go in the direction of the existing neighborhood. environmental conditions of the neighborhood or district The closest neighbor has testified that she feels it would have an adverse effect on her property because the addition would be so close to her home. 5. Whether the alleged difficulty was self-created Any business goes through problems where it feels it has to expand, and sometimes businesses sell their existing location and build at a larger location. This difficulty is self-created. Chairman Rybczynski stated moving a business costs money, time and effort, and it is a significant risk. He noted that the addition being closer to the road will not hinder sight lines or create a driving hazard, and may in fact buffer sound coming from Route 5 to the neighbor s home. Mr. Chiacchia stated that ten years ago, the applicant took a chance and improved the existing building and property, and now they have a viable business there. As the vote on the motion was five (5) ayes and one (1) nay (Mr. Connolly), the motion passed. GRANTED. Application #5433 Woodlawn Autoworkers Requesting an area variance for new signage for the Greater Woodlawn Federal Credit Union at 3811 Lakeshore Road Jamie Allen from Signs Unlimited, representing the applicant, stated that the requested variance is for a new sign to be located on the corner of Bayview Road and Lakeshore Road. He noted that the credit union s existing sign has deteriorated and the proposal is to replace it with a new one that resembles the credit union s other location s sign in Dunkirk. Mr. Allen stated that a new brick structure for the sign is proposed that will resemble the credit union building at this location, and a new electronic sign would be incorporated into the new sign. He noted that electronic signs are allowed in this zoning district (M3). He further stated that the variance is required because the proposed square footage of the sign, including the electronic part of it and the identification aspect of it, is greater than what is allowed. Mr. Allen stated that the structure will be all masonry and will match the credit union building, and it will be installed where the existing sign is, but will be placed perpendicular to Lakeshore Road. In response to a question from Chairman Rybczynski, Mr. Allen stated that the existing sign is 42 sq.ft. in area. He further stated that the sign is approximately 50 feet from the road.

8 In response to a question from Mr. Connolly, Mr. Allen stated that the character of the neighborhood will not be altered if this sign is approved, since this is one of the only properties that are developed in this area. Findings: Mr. Connolly made a MOTION, seconded by Mr. Sacco, to approve Application # Mr. Connolly reviewed the area variance criteria as follows: a detriment to nearby properties will be created by the granting of the variance No, because the size of the property is enormous and there are very few other properties nearby. other than a variance That could be debated one way or another. 3. Whether the requested variance is substantial In comparison to the size of the property and the size of comparable signs on comparable properties, it is not substantial. environmental conditions of the neighborhood or district No, this is a manufacturing area. 5. Whether the alleged difficulty was self-created It could be argued that it is, because the business does not need such a large sign, but it will help the business. Mr. Chiacchia stated that this is a five-star credit union and he feels that it creates a lot of business for the Town of Hamburg. All members voted in favor of the motion. GRANTED. Application # 5434 West Herr Chevrolet Requesting two (2) area variances for a proposed new sign at 5025 Southwestern Boulevard Application # 5435 West Herr Chevrolet Requesting three (3) area variances for an Entry Element Tower to be located at 5025 Southwestern Boulevard Robert Gill and Joe See, architects, appeared on behalf of the applicant. Mr. Gill stated that applications # 5434 and 5435 are being made on behalf of General Motors. He further stated that every 10 to 12 years, General Motors updates its stores. Mr. Gill stated that General Motors has determined that the West-Herr location is to be updated (internal, lighting, etc.). He noted that anew sign (taller and larger) for the Southwestern Boulevard sign location is being proposed, as well as an entry element for the entrance to the building. Regarding the entry element (application # 5435), Mr. Gill stated that the Town of Hamburg considers it to be signage, and therefore a variance is being requested for a second sign at this location. Mr. Gill stated that the entry element is also too tall and too large. In response to a question from Mr. Connolly, Mr. Gill stated that if these variances are denied, he does not know how General Motors and its architects would respond. Mr. See stated that

9 General Motors only has two (2) variations of the entry element, and the requested version is the smaller of the two (2). Findings: Chairman Rybczynski made a MOTION, seconded by Mr. Chiacchia, to approve Application # Chairman Rybczynski stated that this business is hampered by its own success and has been offered an opportunity to improve its showroom, signage, outside look of the property, etc. because of that success. He noted that along with that come the parameters that General Motors places on it. Chairman Rybczynski reviewed the area variance criteria as follows: a detriment to nearby properties will be created by the granting of the variance This is a commercial strip and the business already exists there. The signage will not be a monstrosity and will not upset the other commercial businesses in the area. other than a variance The applicant does not have many options because of the demands of General Motors. 3. Whether the requested variance is substantial It could be argued that the request is substantial, but given the size of the dealership and its location, it is a reasonable request. environmental conditions of the neighborhood or district No. 5. Whether the alleged difficulty was self-created The business is successful, which is why it has the opportunity to improve. All members voted in favor of the motion. GRANTED. Mr. Sacco made a MOTION, seconded by Mr. Chiacchia, to approve Application # Mr. Sacco reviewed the area variance criteria as follows: a detriment to nearby properties will be created by the granting of the variance This is a commercial strip and the business already exists there. The signage will not be a monstrosity and will not upset the other commercial businesses in the area. other than a variance The applicant does not have many options because of the demands of General Motors. 3. Whether the requested variance is substantial It could be argued that the request is substantial, but given the size of the dealership and its location, it is a reasonable request.

10 environmental conditions of the neighborhood or district No. 5. Whether the alleged difficulty was self-created The business is successful, which is why it has the opportunity to improve. All members voted in favor of the motion. GRANTED. Application # 5436 Hobby Lobby Stores, Inc. Requesting three (3) area variances for proposed wall signage at 3701 McKinley Parkway (former F.Y.E. store) Mr. Louis DePerno from Victory Signs, representing the applicant, stated that a variance is being requested for the proposed signage on the front of the building because this is what Hobby Lobby installs at all its stores. He stated that there would be a Hobby Lobby sign, as well as six (6) non-illuminated department signs (channel letters), on the front of the building facing the Mall. He further stated that the Hobby Lobby signage would be illuminated but would not be any brighter than any other sign at the Mall. Mr. DePerno stated that the proposed signage on the north side of the building is needed so that motorists entering the Mall area can identify what store is in this building. He noted that this is the only side of the building that can be seen by motorists entering the Mall parking area. Mr. DePerno stated that the proposed signage on the back of the building is needed to direct motorists traveling on McKinley Parkway to the store. He further stated that this side of the building would also have the six (6) non-illuminated channel letter signs and the illuminated Hobby Lobby sign. It was determined that there will be no signage on the south side of the building. Mrs. desjardins stated that the proposed signage on the north side of the building does meet the requirements of the Town Code regarding square footage, but it requires a variance because it does not face a public street and would not be located over a public entrance. Mr. DePerno stated that the proposed Hobby Lobby signage is smaller than what was previously on the building when it was a FYE store. Chairman Rybczynski stated that the proposed signage is very similar to what has been proposed by several businesses that have come to the Mall complex. Findings: Mr. Sacco made a MOTION, seconded by Mr. Connolly, to approve Application # Mr. Sacco stated that this is an empty building and it is a positive that the building will be occupied by this business. Mr. Sacco reviewed the area variance criteria as follows: a detriment to nearby properties will be created by the granting of the variance No, the area is commercial, and the requested signage is smaller than what was there before.

11 other than a variance It is possible, but the two sides of the building face a parking lot, and the request is in line with other corporate signs in the area. 3. Whether the requested variance is substantial No. environmental conditions of the neighborhood or district No. 5. Whether the alleged difficulty was self-created No. All members voted in favor of the motion. GRANTED. Application # 5437 Essex Homes of WNY, Inc. Requesting an area variance for a proposed townhouse to be constructed at 4823 East Highland Parkway Application # 5438 Essex Homes of WNY, Inc. Requesting an area variance for a proposed townhouse to be constructed at 4821 East Highland Parkway Attorney Sean Hopkins, representing the applicant, stated that the above two (2) applications are related, so he would be addressing them together. Attorney Hopkins stated that the applicant plans to construct a connected (attached) two-family townhouse on this vacant lot. He noted that each attached unit would be owner-occupied, and therefore an internal property line between the two (2) units is required. He stated that the Hamburg Town Code requires that the buildings be separated by at least 15 feet, and these units would be partly attached. Attorney Hopkins stated that every aspect of the two-family attached townhouses complies with the New York State Building Code in terms of fire safety, building materials, rating of common walls, etc. Attorney Hopkins stated that he does not believe there would be any detriments associated with the granting of these variances. He further stated that there are many lots in this development that will require this area variance, noting that Essex Homes has always envisioned a series of attached townhouse units. Attorney Hopkins stated that Essex Homes usually builds detached single family homes throughout western New York, but Essex Homes feels that in this marketplace there is a demand for attached townhouse units. He further stated that this is a different kind of housing type that has worked well in many communities. Mrs. desjardins stated that it is her understanding that this project was originally approved as single family homes, but the Planning Board subsequently approved attached zero lot line townhouses at the applicant s request. She noted that if these units were completely attached, there would be no need for a variance, but because part of the units is detached, this does not comply with the requirement that the two (2) building be 15 feet apart. Chairman Rybczynski stated that the units being too close to each other is a fire safety issue. In response to a question from Attorney Shaw, Mrs. desjardins stated that the Planning Board does not need to review this layout because the footprint of the building is the same as what was approved, but the partially detached area is what requires the variance.

12 Mrs. desjardins stated that if the two (2) units were attached, there would be no need for the variance. Attorney Shaw stated that he sees it as a problem that the Zoning Board of Appeals has to get involved in approving building layouts that were not approved by the Planning Board. He further stated that guidance would be helpful from the Building Inspector or Planning Board, especially if more requests will follow. Mr. Ron Leo stated that he lives across the street from this property. He stated that there are some buildings like what is being proposed in the area, and the units are attached in the front, but they are detached in the rear. Attorney Hopkins stated that the buildings referred to by Mr. Leo are 15 feet apart in the rear, but because of the configuration of these vacant lots that are the subject of the variance request, it is not possible to build the units that far apart. Mr. Connolly stated that it seems to happen quite often that a builder buys lots and knows what he can put on a property, and then he comes to the Board for a variance to build something that is not per the Town Code. He asked Attorney Hopkins why this would not be considered a selfcreated hardship. Attorney Hopkins responded that the fact that an alleged hardship is self-created cannot under any circumstances be the sole criteria to justify a Zoning Board of Appeals decision. He further stated that he would agree that this is a self-created hardship. In response to a question from Mr. Connolly, Attorney Hopkins stated that the curbside appearance of the building would not change with the detached area in the rear. Mr. Bob Peleckis, 4668 Brompton Drive, stated that he has lived there for 20 years, and the property being discussed would be in his rear yard. He stated that the construction of these units would be similar to what one sees in Buffalo. Chairman Rybczynski advised Mr. Peleckis that the only issue the Zoning Board of Appeals is allowed by law to consider is the ten foot space in between the two (2) proposed units. He further stated that Mr. Peleckis concern should have been addressed by the Planning Board when the project was approved. Mr. Peleckis stated that he was never notified that the Planning Board was considering approving the change from single family homes to attached townhouses. Chairman Rybczynski stated that the Zoning Board of Appeals goes above and beyond to notify neighbors of property that is the subject of a variance request. Mr. Peleckis stated that constructing this two-unit building will change the character of the neighborhood. He asked where the buffer would be between this building and the single family homes. Attorney Hopkins stated that what is allowed on a parcel is based on the Town s Zoning Code, which is not set by the Zoning Board of Appeals or Planning Board. Findings: Chairman Rybczynski reminded Board members that Applications 5437 and 5438 are for the same issue, but each is for a separate property. He noted that the Board would be voting on each application separately, but the findings would be the same for each.

13 Mr. Connolly made a MOTION, seconded by Mr. Ginnetti, to approve Application # Mr. Connolly reviewed the area variance criteria as follows: a detriment to nearby properties will be created by the granting of the variance No, the size of the structure will be identical with or without this variance. other than a variance It could be. 3. Whether the requested variance is substantial No, only the rear of the home is affected, and it would not change the property in any way. environmental conditions of the neighborhood or district No, it will look the same with or without the variance. 5. Whether the alleged difficulty was self-created This was self created, because they could build the structure without the gap in the rear, but on balance it tilts towards granting the variance. Chairman Rybczynski stated that Mr. Peleckis concerns were valid, but unfortunately they do not affect the decision made by the Zoning Board of Appeals because they do not have any bearing on the actual request that is being made. All members voted in favor of the motion. GRANTED. Mr. Ginnetti made a motion, seconded by Mr. Eustace, to approve Application # Mr. Ginnetti reviewed the area variance criteria as follows: a detriment to nearby properties will be created by the granting of the variance No, the size of the structure will be identical with or without this variance. other than a variance It could be. 3. Whether the requested variance is substantial No, only the rear of the home is affected, and it would not change the property in any way. environmental conditions of the neighborhood or district No, it will look the same with or without the variance. 5. Whether the alleged difficulty was self-created This was self created, because they could build the structure without the gap in the rear, but on balance it tilts towards granting the variance. All members voted in favor of the motion. GRANTED.

14 Application # 5439 David Root Requesting four (4) area variances for a proposed new lot at 5781 Old Lakeshore Road Attorney Sean Hopkins, representing the applicant, stated that the applicant has under contract the proposed purchase of a portion of 5796 Ainslee Lane, which is adjacent to the applicant s property. Attorney Hopkins stated that Mr. Root is requesting four (4) area variances so that he can subdivide the property. He noted that there are two (2) single-family homes on the property and therefore it is considered a legal non-conforming lot, and the applicant wishes to create an internal property line between the two (2) homes so they can be sold. Attorney Hopkins stated that the sole purpose of creating the internal property line is to eliminate the existing non-conforming status. He further stated that the reasons Mr. Root is requesting the variances primarily deal with the fact that the property is non-conforming. He noted that the problem with the non-conforming status is that non-conforming structures cannot be enlarged or extended per Town Code, nor can they be restored if they are damaged to the extent of 50% or more or the assessed value. He further stated that per Town Code, if one (1) of these residential structures is not used for residential purposes for one (1) year or more, it is deemed abandoned and cannot be occupied. Attorney Hopkins stated that although having (2) residences on one (1) lot is considered legal non-conforming in Hamburg, if a prospective purchaser or Mr. Root attempts to secure a loan on this property that contains two (2) structures, banks will not consider the value of both residences because if one (1) is damaged beyond 50% of its assessed value, it cannot be rebuilt. Attorney Hopkins stated that while there are tremendous benefits to Mr. Root if the variances are granted, there are no detriments. He further stated that if the variances are granted, Mr. Root would be able to sell this property for its fair market value, eliminate the risks in terms of the non-conforming status of the property, obtain bank financing and make improvements to these structures. Attorney Hopkins stated that there would be no physical changes to the property if the variances are granted. He further stated that it would be very difficult for anyone to contend that the granting of these variances would result in an undesirable change in the character of the area or any physical or adverse impacts. He stated that it is clear that this is not a self-created situation because when those homes on the property were built, they complied with the Town Code. Attorney Hopkins stated that Mr. Root does not have a feasible alternative that would allow him to receive the benefits he is seeking. He further stated that demolishing one (1) of the homes would be extreme and would not be consistent with the balancing test and the five (5) criteria. Attorney Hopkins stated that there are several lots in the immediate vicinity that are nonconforming and are consistent with the size of the proposed lots on Mr. Root s property. He noted that Mr. Root has a contract to purchase 1,300 additional square feet from the adjacent neighbor, which would bring the size of the newly created lot to over 8,000 sq.ft. He stated that the newly created lot would not be out of character with the size of existing lots in the immediate vicinity. Attorney Hopkins stated that lot # 1 containing the larger home would comply with all applicable criteria in the Town of Hamburg Code.

15 Mrs. desjardins stated that this subdivision request was approved by the Hamburg Planning Board with the condition that the requested variances must be obtained from the Zoning Board of Appeals. In response to a question from Mr. Connolly, Attorney Hopkins stated that this is not a use variance because the lots do not comply with the dimensional requirements of the Town Code, but a single family home is a permitted use. In response to a question from Mr. Connolly, Attorney Hopkins stated that if the variances are granted, it could result in the reinvestment in and/or improvements to these homes by Mr. Root or a future owner. It was determined that Mr. Root s intention is to sell both properties. Mr. Root stated that the majority of the people in the neighborhood he canvassed indicated that they would rather have the second home on the property owner-occupied than rented. Mrs. desjardins stated that the proposed subdivision was Kurt Allen s idea, which he thought would serve to eliminate the non-conforming status of the property. In response to a question from Mr. Eustace, Mr. Root stated that he has owned the property for ten years. He further stated that almost everyone who has looked at the property has not wanted to buy it because it has two (2) structures on it, and because they could not get financing. Mr. Todd Bridges, 5791 Ainslee Lane, stated that he feels that the granting of these variances will result in a negative impact on the neighborhood because Mr. Root knew what the zoning Code was when he purchased the property, and he (Mr. Root) must live with that, but he (Mr. Bridges) should not have to. He stated that if the variances are granted, his property will be devalued because the newly created lot will not be worth as much as the existing homes on Ainslee Lane. Chairman Rybczynski asked Mr. Bridges how he would feel if Mr. Root cannot find a tenant for the garage apartment in one (1) year s time and it is deemed uninhabitable because of the nonconforming use status. Mr. Bridges responded that Mr. Root could demolish the apartment and then sell the larger home and the property. Mrs. Bridges, 5791 Ainslee Lane, stated that if the garage apartment is demolished, the lot would then fit the character of the neighborhood and the lot size would conform to the neighborhood. She further stated that there are no lots on Ainslee Lane that are as small as the lot proposed by Mr. Root. In response to a question from Chairman Rybczynski, Mr. Root stated that the smaller home on the property that is referred to as a garage apartment is approximately 1,900 sq.ft. He further stated that there is living space on the first floor, as well as the garage. Mr. Bridges stated that he would be willing to pay some money out of pocket and work with Mr. Root to demolish the non-conforming structure. He further stated that he does not believe that there is no regard on Mr. Root s part to do what is best for the neighborhood. Findings: Chairman Rybczynski stated that this property has been the subject of a variance request three (3) times since he has been on the Zoning Board of Appeals. He further stated that the applicant has agreed to purchase as much of the adjacent property as possible to help alleviate

16 the issues at hand and the applicant deserves credit for taking the steps that were available to him in order to alleviate the issue as much as possible. Chairman Rybczynski stated that things have changed in the financial world as far as what is required of individuals attempting to borrow money. Mr. Chiacchia made a MOTION, seconded by Mr. Sacco, to approve Application # Mr. Chiacchia stated that he voted nay the last two (2) times this property was before the Zoning Board of Appeals because of the way the property was configured. He noted, however, that Mr. Root has offered to remediate that situation by purchasing additional land, and the neighborhood will be enhanced by having both structures on the property owner-occupied. Mr. Chiacchia reviewed the area variance criteria as follows: a detriment to nearby properties will be created by the granting of the variance No, the neighborhood will not change one bit. other than a variance No, the property s situation must be rectified. 3. Whether the requested variance is substantial Yes, two parcels of land will be created. environmental conditions of the neighborhood or district No. 5. Whether the alleged difficulty was self-created No, the property was configured as it is now when Mr. Root purchased it. As the vote on the motion was four (4) ayes and two (2) nays (Mr. Connolly and Mr. Eustace), the motion passed. GRANTED. Chairman Rybczynski made a MOTION, seconded by Mr. Sacco, to approve the meeting minutes of June 4, All members voted in favor of the motion. Mr. Sacco made a MOTION, seconded by Mr. Connolly to adjourn the meeting. All members voted in favor of the motion. The meeting was adjourned at 10:20 p.m. Respectfully submitted, Paul Eustace, Secretary Board of Zoning Appeals DATE: July 26, 2013

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