The Town of Newfane is facing a legal challenge over its Zoning Board of Appeals rejecting a use variance for a proposed indoor softball training facility at 2828 Brown Road.
Anthony and Wendy Fazzolari sought to open the training center, dubbed the 716 Fieldhouse, in a 120-foot by 60-foot pole barn which they built in order to store equipment for their contracting business, Solid Ground Concrete, Inc., which they co-own. The Fazzolaris received a building permit for the barn last December and have since completed construction.
But in June, town code enforcement officer Douglas Nankey told the Fazzolaris they would need a use variance in order to convert an 80-foot by 60-foot section into the fieldhouse.
The Newfane ZBA rejected the use variance at its Aug. 5 meeting by a 6-0 vote (with one abstention).
In response, the Fazzolaris filed a suit Aug. 29 to have a State Supreme Court justice reverse the Newfane ZBA's decision.
Wendy Fazzolari said they hoped to build the Fieldhouse to give their 17-year-old daughter space to practice softball during the cold weather months. The nearest indoor softball facility, Wendy Fazzolari said, is the Sports Performance Park in Clarence — a roughly 45-minute drive away.
Wendy Fazzolari said she and her husband have made those treks for about 15 years for their 17- and 19-year-old daughters.
The Fazzolaris initially planned to keep the fieldhouse private for their daughter's use.
But when other parents in Newfane caught wind of the idea, the couple was inundated with requests to open it to the public.
"When we first had this idea, I didn’t think we’d have a go for this," Wendy Fazzolari said. "I’d been shocked. ... People are giving me support, giving me helpful ideas and really rooting for us.”
The Fazzolaris have also started an online petition and Facebook page, both under the name 716 Fieldhouse. The petition's website does not state how many signatures it has received, though Wendy Fazzolari put the number of signees in the "hundreds." Recent posts on the Facebook page have attracted dozens of comments supporting the proposal.
According to the suit, the Fieldhouse would run from Nov. 1 to April 30, and would be open from 2 to 8 p.m. Monday through Friday and 9 a.m. to 5 p.m. Saturdays. No more than 10 players would be allowed to use the fieldhouse at a time, and no more than seven vehicles would ever be in the lot, the suits states.
"I've heard nothing but support," Wendy Fazzolari said.
But three nearby residents on Brown Road spoke against the proposal during a public hearing that preceded the Newfane ZBA's vote.
Dan and Lisa Sherwood raised concern about noise, traffic and the fieldhouse's potential impact on their property values, while Don Peace claimed the Fazzolaris created advertising saying leagues and parties would be held in the building, according to the Newfane ZBA meeting minutes.
The minutes do not specify why the board rejected the variance, although several board members reportedly said the Fazzorlaris had not met the legal criteria for a zoning variance.
Under state municipal law, ZBAs can only issue a variance if the applicant shows they cannot receive a "reasonable (financial) return" on the property, they have a unique hardship on the property, that the hardship was not self-inflicted and that the variance will not alter the character of the neighborhood.
The Fazzolaris' real estate agent, Glenn Aronow, wrote in an affidavit that the three-acre property is not marketable either as agriculture or residential. Aronow wrote that the land is too small and heavily wooded to be useful farmland, while the pole barn, standing water issues and concrete deposits from a decade of contracting work have made it undesirable for home development.
ZBA Vice Chairman Walt Whitenight said the Fazzolari's hardship was self-inflicted because they themselves dumped concrete on the land.
Member Donna Lakes said she felt the variance would change the character of the neighborhood.
Town Attorney James Sansone said the Fazzolaris failed to present evidence showing they could not get a reasonable return on the property. He also said the presence of the pole barn was another self-inflicted hardship.
"It was on the basis that they did not prove a hardship under the law," Sansone said. "They have to prove a hardship, and the board felt that was not proved."
The Fazzolaris' attorney, Bradley Marble, argued the standing water issue constituted a hardship that was not self-created and the Fieldhouse would not change the character of the neighborhood, noting it stands about 300 feet from Brown Road.
Marble also said he believes the fieldhouse fits within the allowed uses of the land's Residential-Rural zoning district, making a variance unnecessary.
"It’s meant for single family homes, light agriculture and recreational services. ... My argument is this is a recreation use, it’s also a service, and it falls within the definition of rural-residential," Marble said.