Town of Hamburg Board of Zoning Appeals Meeting February 1, 2011 Minutes

Town of Hamburg Board of Zoning Appeals Meeting February 1, 2011 Minutes The Town of Hamburg Board of Zoning Appeals met for a regular meeting on Tuesday, February 1, 2011 at 7:00 P.M. in Room 7B of Hamburg Town Hall, 6100 South Park Avenue. Those attending included Chairman Brad Rybczynski, Commissioner Shawn Connolly, Commissioner Paul Eustace, Commissioner Chuck Morlock, Commissioner Jack Rahill and Commissioner Jim Sortisio. Others in attendance included Attorney Joseph Shaw, Attorney Timothy Quinlivan, Supervising Code Enforcement Official Kurt Allen and Planning Consultant Sarah desjardins. Mr. Rahill read the Legal Notice of Public Hearing. Application #5317 Benderson Development Requesting an area variance for a second and third ground sign and for an additional 41 sq.ft. at 4250 McKinley Parkway (Violates 280-261 F(3) Code is one (1) ground sign, requesting three (3) ground signs; Code is 100 sq.ft. per every three (3) linear feet of property line, actual is 141 sq.ft., variance needed is 41 sq.ft.) Attorney James Boglioli from Benderson Development described the planned expansion of the Tops store, as well as the additional retail development and fuel pumps, to be located on the corner of McKinley Parkway and Southwestern Boulevard. Attorney Boglioli stated that the Town Code only allows one (1) ground sign per property and Benderson is asking for three (3). He further stated that the maximum square footage allowed for the ground sign is 100 sq.ft. per every three (3) linear feet of property line and that the three (3) proposed signs would total 141 sq.ft., which is 41 sq.ft. over the maximum allowed. He noted that Benderson proposes to locate one ground sign at the main entrance on Southwestern Boulevard, one on the main entrance on McKinley Parkway and one on the corner where the two roadways meet. Attorney Boglioli reviewed the area variance criteria: 1. Undesirable change in neighborhood character or to nearby properties - this is a uniquely situated corner lot with two main entrances and the proposed signage will be consistent with what is directly across the street (McKinley Commons). 2. Whether benefit can be achieved by other means feasible to applicant - the benefit cannot be achieved in any other way. 3. Whether request is substantial - the requested variance is only 41 sq.ft. over what is allowed and will be consistent with what exists in the area. 4. Whether request will have adverse physical or environmental effects - this would be an improvement to an existing commercial site. 5. Whether the alleged difficulty is self-created - the difficulty is self-created, but there will not be a negative impact associated with the granting of the variance. 1

In response to a question from Mr. Connolly, Attorney Boglioli stated that the three (3) ground signs would be internally illuminated and would contain no electronic messaging. Findings: Mr. Connolly made a MOTION, seconded by Mr. Rahill, to approve application # 5317 for an area variance for a second and third ground sign and an additional 41 sq.ft. for the three signs. Mr. Morlock reviewed the area variance criteria: 1. Whether benefit can be achieved by other means feasible to applicant no. 2. Undesirable change in neighborhood character or to nearby properties this is a unique property and there will be no undesirable change. 3. Whether the request is substantial no. 4. Whether the request will have adverse physical or environmental effects no. 5. Whether alleged difficulty is self-created it is self-created but it will not affect the health or welfare of the community. Chairman Rybczynski stated that this will be a great improvement over what exists on this parcel and the additional signage will not be out of character or substantial. All members voted in favor. GRANTED Application #5318 - Benderson Development Requesting an area variance for four (4) oversized directional signs at 4250 McKinley Parkway (Violates 280-235 D Code is 8 sq.ft., actual is 9.25 sq.ft., variance needed is 1.25 sq.ft.) Attorney James Boglioli from Benderson Development stated that directional signage is proposed at both main entrances (Southwestern Boulevard and McKinley Parkway). He stated that prior to the New York State Department of Transportation (NYSDOT) work in the area, there were a total of six (6) directional signs on the property. He noted that two (2) remain at the driveway that was not changed and four (4) were taken down. He stated that Benderson is asking to replace the two (2) that remain and install two (2) additional signs on the main driveway on Southwestern Boulevard. Attorney Boglioli reviewed the area variance criteria: 1. Undesirable change in neighborhood character or to nearby properties - this will be an improvement to the site and the area. 2. Whether benefit can be achieved by other means feasible to applicant shrinking the signs to reduce visibility would make it difficult for motorists and would be costly to Benderson. 3. Whether request is substantial these signs were previously on the site and the variance requested is minimal. 4. Whether request will have adverse physical or environmental effects - this would be an improvement to an existing commercial site. 5. Whether the alleged difficulty is self-created - the difficulty is self-created, but there will not be a negative impact associated with the granting of the variance. 2

FINDINGS: Mr. Rahill made a MOTION, seconded by Mr. Sortisio, to approve Application # 5318 for an area variance for four (4) oversized directional signs. Chairman Rybczynski reviewed the area variance criteria: 1. Whether benefit can be achieved by other means feasible to applicant the proposed signs are the standard signs that Tops utilizes. 2. Undesirable change in neighborhood character or to nearby properties this will actually be an enhancement to the neighborhood. 3. Whether the request is substantial no. 4. Whether the request will have adverse physical or environmental effects no. 5. Whether alleged difficulty is self-created this is a moot point. All members voted in favor. GRANTED Application #5319 - Benderson Development Requesting an area variance for oversized wall signage at 4250 McKinley Parkway (Violates 280-261 B (1) Code is 120 sq.ft., actual is 287.94 sq.ft., variance needed is 167.94 sq.ft.) Attorney James Boglioli from Benderson Development stated that Benderson is requesting a variance for the signage proposed on the expanded Tops building. He further stated that currently there is 415 sq.ft. of building mounted signage on the building and Benderson proposes to reduce that number to 287.94 sq.ft. +/-. He noted that, although a reduced square footage of building signage is proposed, it still exceeds the maximum square footage allowed per Code. Attorney Boglioli stated that the size of the Tops sign will be reduced and several smaller signs are proposed on the building for advertising purposes ( Pharmacy, Deli, Bakery, Seafood, Florist, Café and Bottle Return ). He noted that the height of the smaller signs would be two (2) feet. Attorney Boglioli reviewed the area variance criteria: 1. Undesirable change in neighborhood character or to nearby properties the Tops building is set back from the road quite a distance and the signs are necessary for visibility from the road. 2. Whether benefit can be achieved by other means feasible to applicant - the benefit cannot be achieved in any other way. 3. Whether request is substantial - he does not feel the request is substantial. 4. Whether request will have adverse physical or environmental effects - this would be an improvement to an existing commercial site. 5. Whether the alleged difficulty is self-created - the difficulty is self-created, but there will not be a negative impact associated with the granting of the variance. Findings: Chairman Rybczynski stated that Benderson actually proposes to reduce the square footage of the wall signage that is currently located on the expanded Tops building. 3

Mr. Morlock made a MOTION, seconded by Mr. Eustace, to approve Application # 5319 for oversized wall signage. Chairman Rybczynski reviewed the area variance criteria: 1. Whether benefit can be achieved by other means feasible to applicant the proposed signs serve to inform the public of the services available in the building. 2. Undesirable change in neighborhood character or to nearby properties none. 3. Whether the request is substantial this will actually reduce the square footage of wall signage. 4. Whether the request will have adverse physical or environmental effects no. 5. Whether alleged difficulty is self-created it is self-created but it will not affect the health or welfare of the community. All members voted in favor. GRANTED. Application #5320 Benderson Development Requesting an area variance for oversized canopy signage at 4250 McKinley Parkway (Violates 280-261 B (1) Code is 9 sq.ft., actual is 12.83 sq.ft., variance needed is 3.83 sq.ft.; Code is 9 sq.ft., actual is 26.83 sq.ft., variance needed is 17.83 sq.ft.; Violates 280-261 I(2) (h) Code is 12, actual is 18, variance needed is 6 ) Attorney Boglioli stated that the three sides of the gas canopy that would be visible from McKinley Parkway and Southwestern Boulevard are the two shorter sides facing these roads and the one long side facing the corner. He further stated that the proposed signage on the long side facing the corner conforms to the requirements of the Town Code and no signage is proposed on the long side that faces the existing Tops store. He stated that the signage proposed for the two short sides does require a variance and further noted that the gas pump area cannot be positioned such that the two longs sides face the two roadways. Attorney Boglioli stated that Benderson proposes to put the signage that would normally be placed on the two long sides of the canopy on the two short sides instead, because of visibility concerns. He noted that this would be consistent with what exists at gasoline stations in the Town of Hamburg. Attorney Boglioli stated that the other variance requested is for the numeric display signs proposed on the canopy. He stated that the Code requires that the numbering on message signs not exceed 12 and noted that 12 is not large enough to be legible on the canopy Benderson plans to install. He stated that Benderson is requesting that the numeric display signs be 18 in height. Attorney Boglioli reviewed the area variance criteria: 1. Undesirable change in neighborhood character or to nearby properties these signs would not be visible at the same time due to the unique nature of the property. 4

2. Whether benefit can be achieved by other means feasible to applicant if the canopy is turned so that the long sides face the two roadways, a larger variance would be required due to the constraints of the property as a corner lot. 3. Whether request is substantial - he does not feel the request is substantial. 4. Whether request will have adverse physical or environmental effects - this would be an improvement to an existing commercial site. 5. Whether the alleged difficulty is self-created - the difficulty is self-created, but there will not be a negative impact associated with the granting of the variance. Lalaine Podkulski, 4332 McKinley Parkway, stated that her family lives adjacent to this site and does not see any problems with the variances requested regarding signage. FINDINGS: Mr. Morlock made a MOTION, seconded by Mr. Rahill, to approve application #5320 for an area variance for oversized canopy signage. Mr. Morlock reviewed the area variance criteria: 1. Whether benefit can be achieved by other means feasible to applicant no. 2. Undesirable change in neighborhood character or to nearby properties none. 3. Whether the request is substantial no. 4. Whether the request will have adverse physical or environmental effects no. 5. Whether alleged difficulty is self-created no. Chairman Rybczynski stated that selling gasoline is a relatively new offering from Tops and another opportunity to make sure that Tops is a success in this area. All members voted in favor. GRANTED. Application #5321 Kurt & Lisa Kilian - Requesting an area variance for a new dwelling at 1195 West Arnold Drive (Violates 280-10 (D)(3)(d) Conservation Areas Code is 60 feet from top of bank of Eighteen Mile Creek, actual is 36 feet, variance needed is 24 feet) Mr. Allen stated that the applicant proposes to construct a dwelling on an existing small lot exception (approximately 11,000 sq.ft.) that borders Eighteen Mile Creek. He further noted that Code requires that all buildings be located at least 60 feet from the top of the bank of the Creek and that the applicant proposes to construct the dwelling 36 feet from the top of the bank. Mr. Kurt Kilian stated that, because of the front yard setback requirement of 35 feet and the requirement that the home be at least 60 feet from the top of the bank of the Creek, he is only left with approximately 24 feet to build a single-story ranch home. He further stated that the home he would like to build is approximately 40 feet in depth, which would infringe on the 60-foot requirement in the back of the lot. In response to a question from Chairman Rybczynski, Mr. Killian stated that he does not own the lot at this time but plans to purchase it if he is successful in obtaining a variance. He further stated that the current owners of the property are Allen and Linda Williams, 5

who provided a letter giving the Kilians permission to seek the variance. Mrs. Lisa Kilian stated that the property is being marketed as a building lot and it is difficult to locate a home on it, given its depth. Mr. Rahill read the following letter from the New York State Department of Environmental Conservation (NYSDEC) dated January 4, 2011: In response to our December 28, 2010 phone conversation and your plans submitted for the above mentioned property, please note the following: The tributary of Eighteen Mile Creek located approximately 170 feet from the proposed project area is not a protected stream and, therefore, will not require a Protection of Waters Permit. Please be advised, this office has reviewed the proposed project and has not identified any Department permit jurisdiction for your proposal. Mr. Rahill read the following letter from Allen and Linda Williams: We are the current owners of the above referenced parcel and have entered into a contract of sale with Kurt and Lisa Kilian to purchase the land. Please be advised that this agreement is contingent upon being a buildable lot and the buyers receiving a variance from the Town of Hamburg to build on it. As such we are allowing Kurt and Lisa Kilian to file this variance on our behalf. Chairman Rybczynski stated that there are other homes on the street that look to be similarly situated relative to Eighteen Mile Creek. He further stated that it appears that there is a portion of the home that would be located the required 60 feet from the top of the bank, noting that the lot is very oddly shaped. Mr. Allen stated that the Zoning Board of Appeals granted a variance in 2003 for 1165 West Arnold Drive for a similar setback from Eighteen Mile Creek. He further stated that the setback requirement is intended to protect the Creek from encroachment of structures into the Eighteen Mile Creek Conservation District. Mr. Connolly stated that a distinction should be made between where the property s rear lot line is and where the top of the bank is, as that would determine how substantial the variance request is. Mr. Allen responded that it is somewhat ambiguous as to where the rear lot line of this property is as it relates to the top of the bank. In response to a question from Chairman Rybczynski, Mr. Kilian stated that he would not be opposed to moving the home closer to the road, although it would also require a variance from the front yard setback requirement. David Kaczmarski, 1185 West Arnold Drive, stated that the distance from his home to the top of the bank varies, but in the area of the property that is closest to the vacant lot the home is approximately ten (10) feet from the top of the bank. Thomas Webb, 1205 West Arnold Drive, stated that his home was built in the late 1880s and he believes that the distance from the homes in the area to the top of the bank has been reduced over the years due to erosion. 6

Debbie Kaczmarski, 1185 West Arnold Drive, stated that her home, along with most of the homes in the area, was built in the late 1880s and almost all of them were built close to the top of the bank. She stated that the area is historically significant and the people who purchased these homes have put much money and effort into fixing them up and keeping the aesthetics of the area intact. She stated that she believes that allowing a home to be built on this vacant lot would result in an undesirable change in the character of the area and nearby properties. She stated that, because her home faces generally westerly, she would be looking at the side of the new home and this would devalue her property. Chairman Rybczynski stated that by definition the Allen s property is a buildable lot and the Zoning Board of Appeals cannot consider Mrs. Kaczmarski s concerns about her views of the new home as much as she would like it to. He noted that the Board can try and work with all parties to make the situation as aesthetically pleasing as possible, but if someone wants to build on this vacant parcel, he or she has the right to do so. Thomas Wrosek, 1175 West Arnold Drive, stated that he feels that allowing someone to build a home on this vacant parcel would detract from the neighborhood. He stated that the paper street that is located just west of the vacant parcel has been partially washed away over the years as a result of erosion. Mrs. Kaczmarski stated that she feels that building a home on this parcel would have an adverse environmental effect because of the erosion issue previously discussed. Chairman Rybczynski confirmed with Mrs. Kaczmarski that she does not want a cookiecutter type home placed in the middle of the neighborhood. Mrs. Kilian stated that, although there are several historic homes in the neighborhood, there also are homes built more recently that do not look like the older homes. It was determined that Mr. Kilian would build his own home. In response to a question from Chairman Rybczynski, Mrs. Kilian stated that they have a rough sketch of the home they plan to build but they do not want to spend additional money until they know they can build on the lot. Chairman Rybczynski stated that, although the previous discussion was not necessarily germane to the issue before the Board, he hoped that the Kilians would consider the character of the neighborhood when they build. Mr. Allen stated that his observation is that this area is not prone for erosion, based on his dealing with coastal erosion issues in the Town. He further stated that nothing he has seen in this area would lead him to believe that any erosion matters could not be easily mitigated. FINDINGS: Chairman Rybczynski stated that this is an odd-shaped property in a historical neighborhood. He noted that the home as proposed would be approximately 55 feet from the top of the bank on the southeast corner, but then that distance is reduced to 36 feet at the opposite end of the proposed home. Mr. Rahill stated that perhaps the Board should re-visit the site. 7

Chairman Rybczynski stated that he does have concerns about the possibility of erosion. Mr. Morlock concurred, noting that some lots are just too small to build on. Mr. Connolly stated that the shape of the lot is unique and the testimony from both sides of the issue has been compelling. He agreed that perhaps a second visit to the site would be appropriate and noted that the extra month would also give the applicants time to digest what was discussed on both sides. He stated that perhaps the two sides could come to some sort of resolution regarding the shape of the home. Mr. Morlock made a MOTION, seconded by Mr. Connolly, to table Application # 5321 and conduct an on-site inspection. All members voted in favor. TABLED OTHER BUSINESS Mr. Eustace made a MOTION, seconded by Mr. Connolly, to approve the minutes from January 4, 2011. All voted in favor. Mr. Morlock made a MOTION, seconded by Mr. Sortisio, to nominate Commissioner Shawn Connolly to the position of Vice-Chairman of the Board of Zoning Appeals. All members voted in favor. Chairman Rybczynski made a MOTION, seconded by Mr. Morlock, to reappoint Commissioner Jack Rahill to the position of Secretary of the Board of Zoning Appeals. All members vote in favor. Mr. Eustace made a MOTION, seconded by Mr. Morlock, to adjourn the meeting. All members voted in favor. The meeting was adjourned at 8:50 p.m. Respectfully submitted, Jack Rahill, Secretary Board of Zoning Appeals Date: 2/8/11 8