**TOWN OF GRAND ISLAND**
ZONING BOARD OF APPEALS
MEMBERS
PRESENT:
Marion Fabiano, Betty Harris, Dario Violanti, Peter McKee, Chairman, Bob
Mesmer and Alternate member, Tim Phillips
MEMBERS ABSENT:
None
OTHERS PRESENT:
None
Chairman,
Peter McKee opened the meeting at
7:00 p.m. He introduced the members of the Zoning Board of Appeals and explained
the process. Copies of the Legal
Notice of Appeal to be heard at this meeting published in the Island Dispatch on
July 24, 2009 were available to those
present.
NEW
BUSINESS:
1) 1660 East River
Road – Peter Montanta – Property is zoned R1B. Proposed
is the construction of a 16’ x 16’ deck with glass walls on three sides on
the waterside of the property. Per Section 49-27A of the Zoning Code, the minimum allowable front yard
setback is 90’ from the center of the
right of way, based on where the plans show the construction of the deck, it appears that they would need a
35.5’ front yard setback variance.
Appearing
was the Appellant stating that he wishes to build the deck for recreational
purposes. He will be 40’ in from the guardrail and 60’ from the center of
the road.
A motion was made by Violanti/ Mesmer to GRANT a 35.5’ front yard setback variance for the building of a
16’ x 16’ uncovered deck on the waterside of the property at 1660 East River Road.
Roll
Call:
Ayes:
Fabiano, Violanti, Harris, McKee, and Mesmer
Noes:
None
Carried
Rationale: This
action is taken because:
1. the
requested variance will not create a detriment to nearby properties.
2.
the deck conforms with
other structures in the area.
3. per
Section 49-27 C-4 of the Zoning Code, there is no obstruction of
view
due to the slope of the property and the glass wall construction.
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8/6/09
2)
2065 East River Road – Roger and Shirley Nye
– Property is zoned R1C. The Applicants requested interpretation of the definition of
“enclosed porch” and /or a 9’ side yard setback variance.
They have constructed wooden framed doors with thick, clear plastic
sheeting, and the Building Department told them they would have to apply for a
variance to enclose the open covered deck.
Appearing
on behalf of the Appellants was Attorney Ryan Mills from Brown & Kelly.
He stated that his clients have no intention of enclosing the sides of
the porch. Three of the four sides will be enclosed.
Basically they will have two end caps with sliding glass doors held up
with screws. The blinds are for
privacy and are temporary and go up and down based on the weather.
They are requesting the doors to keep snow and ice away from their front
door. The vinyl and glass will be
aesthetically appealing and helps them use their porch through out more of the
year. Because the sides are open
and the ends are removable, they do not feel that it is not a permanent
enclosure, and the Board needs to define what a permanent enclosure is.
Speakers
against:
1)
Mr. Peter Schwabl, 2063 East River Road-
Originally this was a request for a roof over an open porch to replace two
awnings that he had over the window and door, something to shade the side of the
house, however, what was built was not just a roof over the window and door.
Mr. Schwabl understands that a non-conforming structure cannot be
expanded and that many neighbors have been denied when requesting the same type
of variance. He stated that the
Appellant had a delivery of 6 sliding glass doors from Miris, and that the
canvas blinds never go up, they are always down.
In fact, they entertained in the room during the middle of winter last
year. He believes that the
Appellant intended to have an enclosed porch from the very start.
In addition, Mr. Schwabl
also stated that there is no egress around the structure, the Appellant has a
50’ wide lot and you cannot go around the house. If there was a fire, you would have to go thru the house.
His house fills the entire 50’ lot.
Per New York State Fire Code, you are required to have a 3’ minimum
space between structures. The side
wall is 18” from his property line and the roof is at the property line.
He feels that the Appellant should be made to put the property back to
its original condition before any of this was built. The homemade doors were never approved by the Town.
Also, in the package was an attachment from his neighbor, Karl Nesensohn,
2046 East River Road, he is opposed to the structure as well.
The Appellant’s attorney,
Ryan Mills stated that Mr. Schwabl
did not cite even one criteria from Town Law 267B, and that this in no way is a
detriment to the neighborhood but would only improve the aesthetics.
All they are requesting is temporary enclosures on both ends caps
restricted to certain months of the year. He
is going back rewinding history which has no application here tonight.
He would hope that the Board doesn’t get side tracked by history and a
neighbor dispute and just review one issue tonight, whether there is permissible
use here f
Page
3
8/6/09
or two end caps, whether
during a portion of the year or the entire year, not asking to enclose it, the
one side will always be left open. The
only function is to eliminate snow. He
doesn’t see any detriment to the neighbors or Grand Island if his clients were
to put up end caps.
2)
Karl Nessensohn, 2046 East River Road
– stated he was denied the same type of variance.
Speakers
in favor:
1)
Mary Hardy, 2072 East River Road – She
is one of the neighbors that are entertained on the Nye’s porch.
The porch is open on one side and it is absolutely beautiful.
She feels that it has increased the vale of their properties.
You would really have to look hard to see what they have done.
The only way to see it is by being on a boat in the river.
The blinds go up and down, and the porch doesn’t hurt anyone else. It
is not what she would consider a closed porch.
The Appellant, Shirley
Nye stated that they only had two doors delivered from Miris and she has the
bill of sale to prove it. They have
plastic up to block the wind. The
blinds are down for their privacy because the houses are too close.
This is like an entrance to her house to keep out the wind, rain and the
snow. Nothing else will ever be
done to their house.
Chairman
McKee stated that as he recalls, the original variance was granted for the
Appellants to put a roof over with the understanding that this would remain an
open porch. His understanding of an
open porch is that three sides are open.
ZBA
member Fabiano stated that she recalled the original variance being requested for a
roof over the door for protection from the weather when coming in and out.
All of these changes are not what the original intent of the variance
was. She stated that the Board has
been concerned with fire and safety issues with construction right up to the lot
line.
ZBA
member Violanti stated that his interpretation is that this should remain an open porch.
He stated that based on what the Appellants are proposing, he would
consider it an enclosed porch.
ZBA
member Harris stated that she considers the porch as a sun room.
It’s a finished room with curtains and a ceiling fan.
A motion was made by Violanti/Mesmer to define their INTERPRETATION
of an open porch as one in which there are no walls on at least three sides. The Board agrees with the staff that the proposed
improvements are walls which will enclose the porch.
The Webster’s definition of a wall, and the pictures submitted,
supports this determination. The
temporary wood frames sit in a partially enclosed frame clearly intended to
create a room. The photo from the street shows what looks like a room addition.
The Board notes the ceiling fan, other improvements typical of a room,
not a porch, and, in fact, there is evidence in the record that the “porch”
was used as living space.
Page 4
8/6/09
Roll
Call:
Ayes:
Fabiano, Violanti, Harris, McKee, and Mesmer
Noes:
None
Carried
A motion was made by Mesmer/Violanti to DENY a variance to enclose the deck.
Roll
Call:
Ayes:
Fabiano, Violanti, Harris, McKee, and Mesmer
Noes:
None
Carried
Rationale: This
action is taken because:
1.
This is so close to the property line, when the original variance was
granted a year ago, the Board felt that a roof was permissible but they felt
that it should not go any closer with any kind of a structure.
Limited access to fire and emergency personnel is somewhat relieved by an
open porch; an enclosed room so close to the property line presents a safety
hazard
2.
The alleged difficulty was self created.
The Nyes have attempted to turn a porch into a room with a ceiling fan,
walls, windows, doors and coverings. The Board finds the self created variance,
in this instance, to have great weight because of the history of this site and
the importance of riverfront property.
3.
Variances are to be limited to the minimum necessary; there is no need
for this variance for the use. The
Nye’s request was for a porch. They
now say they need to keep snow out. That’s
true of an enclosed room but not true of an open porch, which is expected to be
open to the elements, as are porches along the river.
4.
The covered portion reduces the viewshed.
River viewsheds are very important to the neighborhood and property
values, and the Nyes acknowledged this when they agreed to limit the impact to
an open porch.
5.
The overcrowding of the lot by turning an open porch into an enclosed
room will have a detrimental effect on the neighborhood.
While the applicant states vinyl and glass doors will not aesthetically
harm the neighborhood, that is not the only issue for consideration, moreover
the Board disagrees and finds in the context of this neighborhood the proposed
(and actually, already installed) improvements do not fit into the neighborhood.
6.
There is nothing unique or different about the site justifying the
variance.
7.
The Board notes the submittal referred to both use and area variances.
This is an area variance to allow living space in a setback.
Page 5
8/6/09
8.
The Board does not believe that any limiting conditions could be applied
to the request that would acceptably reduce the impacts or change the
outcome of the balancing
test. The question here is simply a
porch versus a room.
3)
765 Alt – Brian Toth –
Property is zoned R1A. Proposed is the construction of a 24’ x 32’ x 10’ high
pole barn at the rear of the property. There
currently exists a 2.5 car garage, and with the additional 2.5 garage spaces, he
would be over the maximum allowable 4 garage spaces.
Therefore, per Section 49-36A of the Zoning Code, the Applicant is
requesting a 1 garage space variance.
Appearing was Brian Toth.
He stated that he wishes to build the garage for storage for his snow mobiles,
jet skis, etc. He has a one acre lot and the garage is proposed to be built
approximately 100 feet behind his house. There
are no utilities planned at this time. The garage will be used for storage only.
No commercial use.
A motion was made by Harris/Fabiano to GRANT a variance for one additional garage space for the
construction of a 24’ x 32’ x 18’ high pole barn at the rear of 765
Alt with the understanding that there will be no commercial use.
Roll
Call:
Ayes:
Fabiano, Violanti, Harris, McKee, and Mesmer
Noes:
None
Carried
Rationale: This action is taken
because
1.
the board recognizes the need for more vehicle storage.
2.
of the side of the lot.
3.
the requested variance will not create a detriment to nearby properties.
4.
the distance from the road provides a desirable setting for this type of
structure.
OLD
BUSINESS:
1)
West River Road – Nixon Peabody LLP
– Proposed telecommunication tower on Russell & Patricia Colosi’s
property on West River Road. Zoning
Code 49-196C states that the setback for a telecommunication tower is 500’
from a residential dwelling. The
proposed tower will be approximately 442’ from the Colosi residence; therefore
a 58’ setback variance is requested. Remains
tabled pending receipt of the SEQR report from the Town Board.
Page 6
8/6/09
2) 2770 Long Road –
Verizon Wireless – Property is zoned M1. Proposed is a telecommunication facility.
Per Zoning Code Section 49-196C, there should be a 500’ setback for the
fall down area. Tem remains tabled pending receipt of the SEQR report from
the Town Board.
3)
2255 Grand Island Boulevard – Michael Jordan of Redtek Development -
Property is zoned R3, B1, and R1D. Proposed
is the construction of a Senior Housing Complex with building walls greater than
160’ in length. Per Schedule 1 of
the Zoning Code, the maximum allowable building length is 160’.
The item was tabled indefinitely at the owner’s request.
4)
2140 and 2160 Grand Island Boulevard – Benderson Development
– At the September 4, 2008 ZBA meeting, the Board granted a 2’ front yard
setback variance from Schedule III of the Zoning Code when it should have been a
15’ front yard variance as the application stated.
Appearing on behalf of
Benderson Development was Attorney Sean Hopkins.
A motion was made by Violanti/Fabiano to AMEND the granted variance to a 15’ front yard setback variance
for the construction of a Key Bank at 2140 and 2160 Grand Island Boulevard.
CORRESPONDENCE:
Letter
from Mr. Peter Schwabl, 2063 East River Rd, in regards to Nye variance
application for 2065 East River Road.
MINUTES:
A motion
made by Fabiano/Harris to ACCEPT the
July 2, 2009 minutes as
written.
Roll
Call:
Ayes: Harris, Fabiano,
Violanti, McKee, and Mesmer
Noes:
None
Carried
OTHER
MINUTES RECEIVED AND FILED:
Board
of Architectural Review Minutes, June 16, 2009
Planning
Board Agenda, July 13, 2009
Planning
Board Minutes, June 8, 2009
Town
Board Agenda, July 6, 2009, July 20, 2009, August 3, 2009
Town
Board Minutes, June 15, 2009, July 6, 2009, July 20, 2009
Adjournment: 8:00 p.m. on August 6, 2009
Jacqueline McGinty, Recording Secretary prepared the minutes.