ZONING BOARD OF APPEALS OCTOBER 21, 2008

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1 Minutes of the meeting of the Zoning Board of Appeals of the Town of Amherst held in the Amherst Municipal Building, located at 5583 Main Street, Williamsville, New York, on Tuesday, October 21, 2008, at 7:00 P.M. The meeting was called to order by Joseph A. Speth, Chairman Members present: Duncan Black Colleen Bogdan Dale M. Hudson Betty Croglio There were also present: F. Robert Danni, P.E., Assistant Building Commissioner Mary E. Wik, Deputy Town Clerk A motion was made by Ms. Bogdan and seconded by Mr. Black to approve the minutes from the Zoning Board of Appeals Meeting held on September 16, Upon roll call Speth, aye; Bogdan, aye; Black, aye; Hudson, aye; Croglio, aye. The motion was declared carried by a vote of ayes 5, noes 0. APPEAL OF STRESS RELIEF CENTRE 4000 MAIN STREET The first matter to come before the Board was an appeal taken by Stress Relief Centre, c/o Jennifer A. Rivier, 4000 Main Street, Amherst, NY 14226, requesting a special use permit under the Town of Amherst Zoning Ordinance for a Type 2 home occupation, massage therapy, at 4000 Main Street. Proof of publication of Notice of Hearing was received and ordered filed in the Town Clerk s office. Jennifer A. Rivier appeared and answered questions from the Board. Luis A. Valls, 4040 Main Street; and Margaret Schwab, 41 Westfield Road, both appeared in favor of the request. As no one else spoke in favor of or in Following a discussion - a motion was made by Ms. Bogdan and seconded by Ms. Hudson to grant the special use permit. The Board granted the special use permit for two (2) years at which time it must be renewed. Upon roll call Speth, aye; Bogdan, aye; Black, aye; Hudson, aye; Croglio, aye. The motion was declared carried by a vote of ayes 5, noes 0. APPEAL OF WEST HERR LINCOLN/MERCURY 2600 MILLERSPORT HIGHWAY The next matter to come before the Board was an appeal taken by West Herr Lincoln/Mercury, c/o Silvestri Architects, PC, Aaron J. Rasco, RA, 80 Pineview Drive, Amherst, NY 14228, requesting a variance to the Town of Amherst Zoning Ordinance for (a) site lighting illumination - maximum level non-resident parking lots; (b) site lighting illumination average level non-residential parking lots; (c) site lighting illumination maximum level vehicle sales, rental & leasing; (d) site lighting illumination average level vehicle sales, rental & leasing; and (e) site lighting illumination maximum level at property line, at 2600 Millersport Highway. Proof of publication of Notice of Hearing was received and ordered filed in the Town Clerk s office. Sean W. Hopkins, Esq. appeared, submitted photos, including an aerial view, and a photometric chart, and answered questions from the Board. John Wabick, Vice President of West Herr, appeared and answered questions from the Board. Aaron J. Rasco, RA, appeared and answered questions from the Board. As no one else appeared in favor of or in opposition to the request, Mr. Speth declared the hearing adjourned. This request was adjourned twice prior to the October 21, 2008 Meeting; namely, August 19, 2008, at the request of the applicant, and September 16, 2008, pending submission of additional information relative to the existing illumination levels. Following a discussion - a motion was made by Mr. Speth and seconded by Ms. Bogdan to adjourn the request. The Board adjourned the request pending additional information regarding national standards for vehicle dealerships, a presentation by a lighting expert, and additional research by the Board on lighting levels. Upon roll call Speth, aye; Bogdan, aye; Black, aye; Hudson, no; Croglio, aye. The motion was declared carried by a vote of ayes 4, noes 1. 1

2 APPEAL OF PHILLIP S. IMERESE 4705 NORTH BAILEY AVENUE The next matter to come before the Board was an appeal taken by Phillip S. Imerese, 4705 N. Bailey Avenue, Amherst, NY 14226, requesting a special use permit under the Town of Amherst for a Type 2 home occupation, golf club sales, at 4705 North Bailey Avenue. Proof of publication of Notice of Hearing was received and ordered filed in the Town Clerk s office. Phillip S. Imerese appeared and answered questions from the Board. As no one else appeared in favor of or in opposition to the request, Mr. Speth declared the hearing adjourned. Following a discussion - a motion was made by Ms. Bogdan and seconded by Mr. Speth to adjourn the request. The Board adjourned the request pending submission of a plan whereby the applicant would be able to utilize space in the garage rather than in the residence. Upon roll call Speth, aye; Bogdan, aye; Black, aye; Hudson, aye; Croglio, aye. The motion was declared carried by a vote of ayes 5, noes 0. APPEAL OF REALTY USA 3195 & 3205 NIAGARA FALLS BOULEVARD The next matter to come before the Board was an appeal taken by Realty USA, c/o Hopkins, Garas & Sorgi, PLLC, Sean W. Hopkins, Esq., 5500 Main Street, Suite 311, Williamsville, NY 14221, requesting a variance to the Town of Amherst Zoning Ordinance for (a) front setback detention pond; and (b) south side yard detention pond, at 3195 & 3205 Niagara Falls Boulevard. Proof of publication of Notice of Hearing was received and ordered filed in the Town Clerk s office. Sean W. Hopkins, Esq. appeared and answered questions from the Board. As no one else appeared in favor of or in opposition to the request, Mr. Speth declared the hearing adjourned. Following a discussion - a motion was made by Mr. Speth and seconded by Ms. Croglio to grant the request for (a) only as (b) was withdrawn by the applicant. The Board granted the request with the condition that a barrier be erected around the perimeter of the pond in accordance with the recommendations of the Planning Department. Upon roll call Speth, aye; Bogdan, aye; Black, aye; Hudson, aye; Croglio, aye. The motion was declared carried by a vote of ayes 5, noes 0. APPEAL OF SHERIDAN WALK PLAZA 3490 SHERIDAN DRIVE The next matter to come before the Board was an appeal taken by Sheridan Walk Plaza, 3d Sheridan LLC, c/o Erika Curran, 4549 Main Street, Suite 100, Amherst, NY 14226, requesting a temporary use permit under the Town of Amherst Zoning Ordinance for dumpsters, at 3490 Sheridan Drive. Proof of publication of Notice of Hearing was received and ordered filed in the Town Clerk s office. Erika Curran appeared and answered questions from the Board. As no one else appeared in favor of or in opposition to the request, Mr. Speth declared the hearing closed. Following a discussion - a motion was made by Ms. Bogdan and seconded by Ms. Hudson to grant the temporary use permit. The Board granted the temporary use permit for two (2) years at which time it must be renewed. Upon roll call Speth, aye; Bogdan, aye; Black, aye; Hudson, aye; Croglio, aye. The motion was declared carried by a vote of ayes 5, noes 0. 2

3 APPEAL OF NICOLE BROWN-HALL/JEREMY HALL 642 LONGMEADOW ROAD The next matter to come before the Board was an appeal taken by Nicole Brown-Hall/Jeremy Hall, 642 Longmeadow Road, Amherst, NY 14226, requesting a special use permit under the Town of Amherst Zoning Ordinance for Type 2 Home Occupation, sale of bag toss game, at 642 Longmeadow. Proof of publication of Notice of Hearing was received and ordered filed in the Town Clerk s office. Nicole Brown- Hall appeared and answered questions from the Board. As no one else appeared in favor of or in Following a discussion - a motion was made by Ms. Bogdan and seconded by Ms. Hudson to accept the Negative Declaration. Upon roll call Speth, aye; Bogdan, aye; Black, aye; Hudson, aye; Croglio, aye. Upon roll call Speth, aye; Bogdan, aye; Black, aye; Hudson, aye; Croglio, aye. The motion was declared carried by a vote of ayes 5, noes 0. A motion was made by Ms. Bogdan and seconded by Ms. Hudson to grant the special use permit. The Board granted the request with the following conditions: (1) hours of operation shall be from 9:00 am 5:00 pm, Monday Friday or less; and (2) no sign displayed at any time. The Bord granted the special use permit for two (2) years at which time it must be renewed. Upon roll call Speth, aye; Bogdan, aye; Black, aye; Hudson, aye; Croglio, aye. The motion was declared carried by a vote of ayes 5, noes 0. A motion was made by Ms. Bogdan and seconded by Ms. Hudson to grant the special use permit. APPEAL OF JOHN T. MONTGOMERY, JR. 11 SUNSET COURT The next matter to come before the Board was an appeal taken by John T. Montgomery, Jr., 11 Sunset Court, Amherst, NY 14228, requesting a variance to the Town of Amherst Zoning Ordinance for west side yard, at 11 Sunset Court. Proof of publication of Notice of Hearing was received and ordered filed in the Town Clerk s office. John T. Montgomery, Jr. appeared and answered questions from the Board. Tony Massop, President of Creekwoods Association, 264 Sundridge Drive; and Jeffrey Haas, 250 Sundridge Drive, both appeared in favor of the request. As no one else appeared in favor of or in opposition to the request, Mr. Speth declared the hearing closed. Following a discussion - a motion was made by Ms. Croglio and seconded by Mr. Black to grant the request. The Board granted the request subject to compliance with the fire resistance ratings in the Residential Code of New York State. Upon roll call Speth, aye; Bogdan, aye; Black, aye; Hudson, aye; Croglio, aye. The motion was declared carried by a vote of ayes 5, noes 0. APPEAL OF HECTOR S HARDWARE STORE 3875 HARLEM ROAD The next matter to come before the Board was an appeal taken by Hector s Hardware Store, c/o James Chameli, 19 Maricrest Drive, Amherst, NY 14228, requesting a temporary use permit under the Town of Amherst Zoning Ordinance for a portable storage container, at 3875 Harlem Road. Proof of publication of Notice of Hearing was received and ordered filed in the Town Clerk s office. James Chameli appeared and answered questions from the Board. As no one else appeared in favor of or in opposition to the request, Mr. Black declared the hearing closed. Following a discussion - a motion was made by Ms. Bogdan and seconded by Mr. Black to grant the temporary use permit. The Board granted the temporary use permit for two (2) years at which time it must be renewed to provide the requested relief during the reconstruction of Harlem Road. Upon roll call Speth, aye; Bogdan, aye; Black, aye; Hudson, aye; Croglio, aye. The motion was declared carried by a vote of ayes 5, noes 0. 3

4 APPEAL OF ANN W. FOURTNER 480 RAMBLING ROAD The next matter to come before the Board was an appeal taken by Ann W. Fourtner, 2095 Hopkins Road, Getzville, NY 14068, requesting a variance to the Town of Amherst Zoning Ordinance for lot width, at 480 Rambling Road. Proof of publication of Notice of Hearing was received and ordered filed in the Town Clerk s office. Charles Fourtner appeared and answered questions from the Board. As no one else appeared in favor of or in The appeal was withdrawn by the applicant at the public hearing. APPEAL OF DIPIZIO CONSTRUCTION COMPANY, INC. 205 SOUTH YOUNGS ROAD The next matter to come before the Board was an appeal taken by DiPizio Construction Company, Inc., c/o Rosanne Lettieri, 100 Stradtman Street, Cheektowaga, NY 14206, requesting a temporary use permit under the Town of Amherst Zoning Ordinance for construction yard and staging area, at 205 South Youngs Road. Proof of publication of Notice of Hearing was received and ordered filed in the Town Clerk s office. Rosanne Lettieri appeared and answered questions from the Board. Pastor David Smith, 151 South Youngs Road; Sally Sprada, 181 Lyndhurst Road; and Michael Collins, 149 Lyndhurst Road all appeared expressing their concerns regarding the request. As no one else appeared in favor of or in opposition to the request, Mr. Speth declared the hearing adjourned. Following a discussion - a motion was made by Mr. Speth and seconded by Mr. Black to adjourn the request. The Board adjourned the request pending submission of the following: (1) determine decibel levels for the grinder; (2) indicate how the applicant will control the dust; and (3) search for other possible locations. Upon roll call Speth, aye; Bogdan, aye; Black, aye; Hudson, no; Croglio, no. The motion was declared carried by a vote of ayes 3, noes 2. APPEAL OF DENT TOWER 3980 SHERIDAN DRIVE The next matter to come before the Board was an appeal taken by Dent Tower, Sheridan Equity Partners II, LLC, c/o Hopkins, Garas & Sorgi, PLLC, Sean W. Hopkins, Esq., 5500 Main Street, Suite 311, Williamsville, NY 14221, requesting a variance to the Town of Amherst Zoning Ordinance for (a) rear yard; (b) west side yard; and (c) transformer rear yard, at 3980 Sheridan Drive. Proof of publication of Notice of Hearing was received and ordered filed in the Town Clerk s office. Sean W. Hopkins, Esq. appeared, submitted a letter advising the reasons for non-approval as well as a diagram, and answered questions from the Board. John Yurtchuk, appeared and answered questions from the Board. As no one else appeared in favor of or in Following a discussion - a motion was made by Ms. Hudson and seconded by Mr. Speth to grant the request. The Board granted the request with the following conditions: (1) submit the letter from the financial lender stating the requirement for a separate parcel; and (2) record reciprocal easements as mandated by the Zoning Ordinance. Upon roll call Speth, aye; Bogdan, aye; Black, aye; Hudson, no; Croglio, no. The motion was declared carried by a vote of ayes 5, noes 0. 4

5 APPEAL OF WALGREENS NIAGARA FALLS BOULEVARD The next matter to come before the Board was an appeal taken by Walgreens, c/o Damon & Morey LLP, Jeffery D. Palumbo, Esq., 9276 Main Street, Suite 3, Clarence, NY 14031, requesting a variance to the Town of Amherst Zoning Ordinance for (a) pole sign face area; and (b) pole sign face area per face, at Niagara Falls Boulevard. Proof of publication of Notice of Hearing was received and ordered filed in the Town Clerk s office. Jeffery D. Palumbo, Esq. appeared and answered questions from the Board. As no one else appeared in favor of or in Following a discussion - a motion was made by Ms. Bogdan and seconded by Ms. Croglio to deny the request. The Board denied the request for the following reasons: (1) it does not meet the intent of the Ordinance; (2) the hardship is self-imposed; (3) undesirable change will be created by setting a precedent for that district; and(4) the Zoning Board of Appeals weighed the benefit to the applicant if the variance is granted against the detriment to the health, safety and general welfare of the neighborhood or community that would occur if the variance were granted. In accordance with Town Law 267(b) it was determined that the detriment to the area outweighs the benefit to the applicant. Upon roll call Speth, no; Bogdan, aye; Black, aye; Hudson, no; Croglio, aye. The motion was declared carried by a vote of ayes 3, noes 2. APPEAL OF ZAEPFEL DEVELOPMENT COMPANY NORTHPOINTE PARKWAY The next matter to come before the Board was an appeal taken by Zaepfel Development Company, c/o Damon & Morey, Jeffery D. Palumbo, Esq., 9276 Main Street, Suite 3, Clarence, NY 14031, requesting a rehearing for a temporary use permit under the Town of Amherst Zoning Ordinance for, non-permitted parking lot without a principal use, at Northpointe Parkway. At the December 18, 2007, Zoning Board of Appeals Meeting the Board denied this request for the following reasons: (1) no reason to deviate from the Ordinance; (2) it will not be in harmony with the general purposes of the Zoning Ordinance; and (3) it will tend to depreciate the value of the adjacent property. Following a discussion a motion was made by Mr. Black and seconded by Mr. Speth to grant the request for a rehearing. Upon roll call Speth, aye; Croglio, aye; Bogdan, aye; Black, aye; Hudson, aye. The motion was declared carried by a vote of ayes 5, noes 0. October 23, 2008 Date Marjory Jaeger, Amherst Town Clerk 5

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