Town of Amherst Zoning Board of Appeals·August 18, 2026
A shipping-container house clears its setbacks · A home salon deadlocks twice · Bornhava's expansion held open
A four-member Zoning Board of Appeals worked a ten-hearing docket for roughly 94 minutes and granted eight area variances — then finished the night unable to resolve either of the two items that drew a crowd. It approved, 4–0 and over three neighbors, the side-yard relief that lets Steven D. Warfe[*] set a 1,065-square-foot shipping-container house on a narrow lot at 505 N. Ellicott Creek Road; it cleared Kasada, LLC to knock down the vacant Red Lobster at 4010 Maple Road for a one-story Raising Cane's[*] with a drive-through; and it signed off on oversized garages, an above-ground pool and a covered porch across five more residential lots. But Bornhava's[*] 10,400-square-foot preschool expansion at 25 Chateau Terrace — six variances, a 175-child wait list, and two neighbors on traffic, drainage and parking — was held open and adjourned without a vote. And a home-based salon at 4 Mac Arthur Drive deadlocked 2–2 twice, first on a motion to deny and then on a motion to approve with conditions, sending it automatically to a fresh public hearing on September 15.
Steven D. Warfe[*] came to the podium with a modest ask and an immodest building. He wanted seven feet shaved off each side yard — 22 feet on the west, 23 on the east, where the Town's SA district requires 30 — so he could fit a house on a small, creek-side lot at 505 N. Ellicott Creek Road.[1] What he proposed to put there was a container home: a shipping container craned in, with a roof that folds up, sides that fold down and a glass wall facing the creek. "No one's ever seen these in Buffalo or Amherst or wherever we are," he told the board. "They're just not around."[2]
Three neighbors came to say so. Ned Holmes[*] of 500 N. Ellicott Creek Road reported searching the Town's website and finding "containers for trash" and "containers for recycling" but nothing about container houses, and said he did not see how a row of them would suit a street of older homes.[2] Chairperson Brian Bray stopped him: the ZBA's jurisdiction is the setback, not the architecture. "That would not be our purview," Bray said — twice, in slightly different words.[2] Staff added that the structure is legally a modular home, built off site and craned in, like one recently assembled at Sheridan Drive and North Forest Road, and that the Building Department will hold it to the State Uniform Fire Prevention and Building Code.[2]
Paul Bauer[*] of 501 N. Ellicott Creek Road worked the application line by line with three photographs and 68 years on the street. His objection was geometry, not taste: the house on the far side of the lot sits essentially on its own property line with no side yard at all, so trimming Warfe's[*] setback would leave roughly 23 feet between the two dwellings where current SA zoning contemplates 60. He asked the board to adjourn and demand alternatives. Bray cut him off once, sharply, when Bauer[*] began describing a neighboring owner's mental health — "it's an inappropriate statement to be making at this hearing."[2]
Warfe[*] answered that the squeeze is not of his making: the Town requires a minimum 1,000 square feet of dwelling, he must stay 50 feet off the road, and he cannot build toward the creek. His main container runs 865 square feet, so he bolted on another 200 to reach 1,065. Asked whether he would rather have sought a variance from the size minimum instead, he said the building department told him 1,000 square feet was simply the floor and never presented that as an option. "I'm old now, so I don't want to maintain a big house," he said.[2]
Member Ronald Shubert[*] moved approval and member Ellen Parker seconded. Before the roll, staff asked the chair to put the five statutory factors on the record; Bray recited them one by one and landed on the last: the difficulty is self-created "only in so far as" the owner wants to build a house at all, and "we do not see how he could build a home on the property without having to also request a variance of some sort."[2] The variance carried 4–0.
Twice on Tuesday a resident argued that a project was wrong for the neighborhood, and twice the chair explained that the board could not weigh that. A Zoning Board of Appeals hears three kinds of business, and the difference matters. An area variance — nine of the ten hearings on this docket — is dimensional relief only: a setback, a height, a square footage, a parking count. A use variance asks permission to do something the district flatly forbids, and it is far harder to win: the applicant must prove all four prongs of the classic test, including that the property cannot yield a reasonable return under any permitted use. A special use permit (Item 10) is different again — the use is already allowed in the district, and the board is deciding conditions, not permission in principle. Nothing on the August docket was a use variance.
For an area variance, New York Town Law §267-b(3)(b) hands the board a five-factor balancing test and nothing else: whether an undesirable change to neighborhood character or a detriment to nearby properties would result; whether the benefit could be achieved another feasible way; whether the request is substantial; whether it would harm physical or environmental conditions; and whether the difficulty was self-created. That last factor, as the applicant's attorney reminded the board on Item 1, is expressly not determinative — a self-created hardship does not by itself sink an application. Aesthetics, construction traffic, an ugly neighboring lot, and whether a use "belongs" on a street are not on that list. That is why the board kept redirecting complaints to the Town Supervisor's office, the Building Department and the Planning Board.
The last item of the night was the smallest and the only one nobody could settle. Tulsi Dhimal and Pushpa Gautam[1] bought the corner house at 4 Mac Arthur Drive four or five months ago and asked for a special use permit to run a one- or two-chair salon out of it: appointment only, 9 a.m. to 7 p.m. Monday through Saturday, no employees. "I'm working as a haircut salon like five years," the applicant told the board. "I have two kids, so I'm thinking to open like my own business in the house."[3]
Four neighbors said no — and almost none of it was about hair. It was about the corner. The house sits where Mac Arthur Drive meets Maple Road, at the entrance to Fairfax Estates[*] and across from a hospital entrance. Two speakers said the property has been an eyesore for years: overgrown, a cracked brick development sign, trees a pedestrian has to duck under. Two said adding parking to a house on a residential street was the line. And more than one said the word that hangs over every special-use case: precedent.
The applicants answered that they had only just moved in and are now cutting the grass and cleaning up. Then the votes started going nowhere. A motion to deny, seconded by member Erik A. Goergen[*], failed 2–2 — Shubert[*] and Goergen[*] for denial, Bray and Parker against. The board then tried the other direction, and counsel prompted it to load the motion with conditions: one chair only; any sign limited to two square feet and affixed to the building wall; one customer at a time, parked in the driveway; appointment-only operation; and a one-year permit rather than the standard two. That motion failed 2–2 as well, on the exact mirror image of the first roll call.[3]
With the tie, the permit was automatically tabled to the September meeting, when all five members are expected. On staff's advice the board then voted 4–0 to schedule a continued public hearing for September 15 so that everyone who spoke gets another turn. "Most confusing for the last item," someone observed as the meeting closed.[3]
The applicant opened by asking the board to "change to zone two type" — and it is an easy mistake, because the Town calls a home salon a Type 2 Home Occupation. Staff corrected the record: this is not a rezoning and does not change the R-3 residential district. Home-based businesses are already permitted accessory uses in Amherst's residential districts. The owner must live in the house, and the ZBA issues a special use permit with whatever limits it wants to attach. The permit runs two years, and the Building Commissioner must inspect at each renewal to confirm the conditions are still being met. Nothing about it transfers as a commercial zoning classification, and a neighboring house does not become eligible for one automatically.
With Kelly J. Philips excused, four of five seats were filled — enough to do business, but an even number, which is how a board ends up voting twice and deciding nothing. A tie is not a decision. The motion to deny failed, which is not an approval; the motion to approve failed, which is not a denial. Under the board's practice, a 2–2 vote carries the application automatically to the next meeting, where a fifth member breaks it. The one thing a tie does resolve is timing: neighbors who spoke Tuesday will have to come back, which is exactly why the board reopened the public hearing rather than leaving it closed.
The night's largest project opened the docket and left it unresolved by design. Specialized Early Childhood Center of Western New York, Inc. — the nonprofit that operates the special-needs preschool Bornhava[*] at 25 Chateau Terrace — is seeking six area variances for a 10,400-square-foot, two-story addition on a 1.2-acre site.[1][4] Executive director Shannon Kercher[*] gave the board the reason in one number: 175 children on the wait list who cannot be served because there is no room for them. Ninety percent of enrolled children need speech or occupational therapy, she said, and about 60 percent need physical therapy — and the building has no elevator, which is why the addition is going where it is going.[4]
Attorney Nicholas Tuttle[*] of Rupp Pfalzgraf[*], with designer Hillary Georgi[*] of Elevate Architecture[*], walked the five-factor test and flagged that the package may shrink: the Planning Board can grant design exceptions under the Town's form-based code, so some of the six requests may never need a variance at all. The team said Town staff had circulated an email asking that the matter be kept open for Planning Board review, and that they agreed. Design review comes next week; the Planning Board in September.[4]
Both speakers were careful to separate the school from the street. O'Connor[*] called Bornhava[*] "a wonderful neighbor" and then listed drainage, fencing and parking; Dirdle[*] said she loves the school and objects to what has happened around it. Both spent most of their time on things the ZBA cannot fix: construction trucks blocking Chateau Terrace, a single signalized exit onto Main Street shared with school traffic, a Benderson[*] project already under way nearby, a neglected medical-arts property, and a historic house at 22 Chateau Terrace that Dirdle[*] said was promised protection during construction and is now "rotting from the inside out." The chair redirected both to the Town Supervisor's office.[4]
No board member asked about parking, and no one moved on the merits. The board voted to hold the public hearing open and adjourn the item to a future agenda — member Shubert[*] moving, member Parker seconding.[4]
Kasada, LLC[1] will replace the shuttered Red Lobster at 4010 Maple Road with a roughly 3,400-square-foot Raising Cane's[*] restaurant and drive-through — and needed exactly one variance to do it. The parcel sits in the CTR-5 district, which sets a minimum building height of 30 feet and two stories; the restaurant will be 21 feet and one story.[1] Engineer Karen Majinowski[*] of Bohler Engineering[*] argued the corridor is already built that way, running through the neighbors — Aldi set far back off Maple, a one-story Wendy's, Kyoto, Brick House[*], and Lasertron[*] around the corner on North Bailey Avenue — and reminded the board it had granted the same relief in January 2025 to 7 Brew[*] diagonally across the intersection at 3999 Maple Road. The board's only real question was how the new building compares in height to what is there now; nobody could produce a figure for the Red Lobster, and the consensus was that one story is one story. No one from the public spoke. Granted on a voice vote, member Goergen[*] moving and member Shubert[*] seconding.[5]
Most variance requests ask permission to build bigger. This one asked permission to build smaller. Amherst's CTR-5 designation is a center/corridor district under the form-based portion of the zoning ordinance, and form-based codes set minimum heights on purpose: a two-story street wall is what makes a corridor feel like a main street instead of a strip. A one-story fast-food building with a drive-through is the opposite of that intent — so a single-story restaurant on Maple Road cannot be built as of right, and has to come here. The board granted the same relief across the intersection nineteen months ago, which is how a minimum becomes a formality one application at a time.
The remaining six hearings took barely fifteen minutes between them, none drew a single public speaker, and all six were granted.
At 1160 Tonawanda Creek Road, Thomas Lee Trabert, Jr.[1] asked for a 24×36-foot pole barn that would push total accessory building area to 1,462 s.f. against an 1,151 s.f. cap, plus a height variance to 24 feet. At the chair's prompting, Trabert acknowledged on the record that he is a Town employee; a second voice added, "both of us are." The height variance then evaporated — he told the board the barn will come in at "19 and change," under the 20-foot cap — so the board granted the building-area relief only. A neighbor worried the barn would shade his garden, so Trabert moved it 20 feet off the property line.[6]
At 60 Presidio Place, Justin and Tracy Heaslip[1] won relief to put a 21-foot round above-ground pool 4 feet from the south property line where 20 is required — the corner of the yard that backs onto Quantico Court, with Youngs Road[*] behind. The whole yard is already inside a six-foot vinyl fence. Asked why he was applying in August rather than April, Justin Heaslip[*] was philosophical: "maybe we'll have it for next year."[6]
At 3341 Hopkins Road, William R. Davis[1] got the night's biggest accessory structure — a 24×80-foot garage for agricultural equipment bringing total accessory area to 2,541 s.f. against a 1,584 s.f. limit, with two existing sheds to come down. He brought no renderings and drew no questions.[6] At 215 Smith Road, Steve Neureuther[1] added a second attached garage 23 ft 10 in from the east line (30 required), citing a neurological condition and a tight existing bay: "looking into the future … make life a lot easier."[6] At 54 Ashworth Court, Matthew Rossen[1] got a garage addition 5 ft 6 in from the east line (8 required) after the affected neighbor said he could have built to the line if he wanted.[6] And at 350 Washington Highway, architect Brian Effinger[*] of JB Architects[*] won relief for owners Rich and Sheryl Neal[1] to build over an existing front porch 21.24 feet from the west line (30 required) and add a covered porch at about 15 feet (22 required), arguing the block is already built that close. By then it was past 1:13 into the meeting, and a board member summed up the docket in three words as the motion was seconded: "Long night, guys."[5]
Four of the five ZBA members sat — Chairperson Brian Bray, Vice Chairperson Ronald Shubert[*], Ellen Parker and Erik A. Goergen[*] — with Kelly J. Philips excused. No recusals were announced. Where the chair announced a tally it is given; where he called a voice vote without one, the row says so. Roster verified against the Town's official ZBA page; dispositions are provisional pending official minutes.
Area variance under §2-5-4B(3): dwelling 22 ft from the west property line and 23 ft from the east, where the SA district requires 30 ft minimum. Public hearing held, reopened once for a late speaker, then closed; three neighbors spoke. Motion to approve by member Shubert[*], second by member Parker. At staff's request the chair recited the §267-b(3)(b) five-factor balancing test on the record before the roll call. Carried on a roll-call vote of the four seated members.
Motion to deny, made after four neighbors spoke in opposition and seconded by member Goergen[*]. Roll call split evenly: Shubert[*] and Goergen[*] in favor of denial; Bray and Parker opposed. A tie fails, so the motion did not carry — which is not an approval.
A second motion, to grant the special use permit with conditions, was made and seconded after counsel suggested the board attach limits. The conditions offered: one chair only; any signage limited to two square feet and affixed to the building wall; one customer at a time, parked in the driveway; appointment-only operation; and a one-year permit term rather than the standard two. Roll call was the mirror image of the first: Bray and Parker in favor, Shubert[*] and Goergen[*] opposed. With the tie, the application was automatically tabled to the next meeting, when a fifth member is expected to sit.
Because the board had already closed the public hearing before deadlocking, staff advised it either to reconsider that closure or to schedule a fresh hearing, and to fix the date that evening "so that all the parties are aware." Motion by member Shubert[*] to schedule a continuation of the public hearing for the September meeting, second by member Parker. Staff noted the Clerk does not normally re-notify; the hearing will be posted on the Town web page at least a week beforehand.
Six area variances sought by Specialized Early Childhood Center of Western New York, Inc. (Bornhava[*]) under §§5A-1-3, 5A-2-5 (three requests), 5A-5-4G and 5A-9-1A. Public hearing held; two neighbors spoke and an emailed comment from Robbie Girth[*] was entered into the record. The board deliberately took no vote, holding the hearing open so the Planning Board can review the site plan first — the Planning Board may grant design exceptions that eliminate some of the six requests. Motion to adjourn the item by member Shubert[*], second by member Parker.
Petitioner Thomas Lee Trabert, Jr. sought two variances: total accessory building area of 1,462 s.f. against an 1,151 s.f. limit (§6-8-1B), and a 24-ft height against a 20-ft limit (§3-6-3B). At the hearing Trabert said the pole barn will stand under 20 feet, so the chair confirmed the height variance was not needed and the board acted on the building-area request alone. At the chair's prompting Trabert acknowledged on the record that he is a Town employee. No public comment. Motion by member Goergen[*]; second recorded but the mover of the second is not distinguishable in the audio.
Area variance under §2-5-2A5(b): above-ground pool 4 ft from the south property line, where 20 ft is required. A 21-ft round pool in a yard already enclosed by a six-foot vinyl fence; no deck proposed. No public comment. Motion by member Parker, second by member Shubert[*].
Area variance under §6-8-1B: a 24×80-ft accessory garage creating 2,541 s.f. of total accessory building area, including a 600 s.f. attached garage, where the ordinance limits it to 1,584 s.f. The applicant will remove two existing sheds and store agricultural equipment. No board questions and no public comment. Motion to approve made (mover not identified in the audio), second by member Parker.
Area variance under §2-5-4B(3)(a): proposed attached garage 23 ft 10 in from the east property line, where 30 ft is required. A second 28-ft bay about 13 ft 6 in wide, sided to match, added for accessibility reasons. The neighbor to the east was consulted. No public comment. Motion by member Parker, second by member Shubert[*].
Area variance under §3-5-2B: garage addition 5 ft 6 in from the east property line, where 8 ft is required. The applicant said a backyard shed would have crowded existing garden and foliage. The affected neighbor told him he could have built to the property line. No public comment. Motion by member Goergen[*], second by member Shubert[*].
Area variance under §5A-3-7.C: proposed restaurant 21 ft tall and one story, where the CTR-5 district requires a minimum of 30 ft and two stories. A roughly 3,400 s.f. Raising Cane's[*] with drive-through replacing the vacant Red Lobster. Presented by engineer Karen Majinowski[*] of Bohler Engineering[*], who cited the same relief granted to 3999 Maple Road in January 2025. No public comment. Motion by member Goergen[*], second by member Shubert[*].
Two area variances under §3-6-2B and §2-5-2A(1)(c)(iv): an addition built over the original front porch 21.24 ft from the west property line (30 ft required) and a covered porch at about 15 ft (22 ft required). Presented by architect Brian Effinger[*] of JB Architects[*], 129 Rexham Court, North Tonawanda, who said several nearby houses sit a similar distance from the right-of-way. No public comment. A motion and second were recorded; member Goergen[*] is audible as one of the two, but the audio does not distinguish which member made which.
The chair adjourned the June 16, 2026 minutes to a later meeting to give members more time to review them — the second consecutive meeting at which this board has deferred a set of minutes. Motion by member Shubert[*], second by member Goergen[*].
The board. The five-member ZBA roster — Chairperson Brian Bray, Vice Chairperson Ronald Shubert, Esq., and members Erik A. Goergen, Esq., Ellen Parker and Kelly J. Philips, Esq. (one "l" per the official roster) — is verified against the Town's official Boards & Committees page. The audio rendered Shubert as "Schubert" and once "Schumer," and Goergen variously as "Gorgon," "Gergen," "Ghergen" and "Corgan"; both are corrected here. Official minutes for this meeting had not posted at the time of writing, so attendance, movers and seconders, and the dispositions recorded here are provisional pending the official minutes. Where the chair called a voice vote without announcing a tally, the All Motions row says "voice vote" rather than inventing one; in each such case four members were seated and no opposition was audible.
Names and entities corrected against the August 18 agenda, which governs spelling: Thomas Lee Trabert, Jr. (audio: "Trabert"), Justin and Tracy Heaslip ("Heaslip," first name only), Steven D. Warfe ("Steven Warf"), William R. Davis, Steve Neureuther ("Newrider"), Matthew Rossen ("Rosson"), Kasada, LLC, Rich & Sheryl Neal (never named aloud), Tulsi Dhimal & Pushpa Gautam (audio gave a first name only), and Specialized Early Childhood Center of Western New York, Inc., the corporate applicant for 25 Chateau Terrace. The Town staff member the audio rendered as "Yultowski," "Ilotowski" and "you litowski" is Daniel J. Ulatowski, who is listed on the agenda as the initiating staffer for Items 2 through 7; Items 1, 8, 9 and 10 were initiated by Greg Dionne. Neither is quoted by name here.
Names heard only in audio — treat as unverified (marked [*]). Agendas list entities, not the people who speak for them, so every applicant representative and resident above carries the flag: attorney Nicholas Tuttle of Rupp Pfalzgraf, designer Hillary Georgi of Elevate Architecture, executive director Shannon Kercher, engineer Karen Majinowski of Bohler Engineering, architect Brian Effinger of JB Architects, and residents Jerry O'Connor, Lisa Dirdle, Ned Holmes, Paul Bauer, William Hind, Michael Colander, Michelle Elardo, Charles Elardo and Amy Kaposi, plus Robbie Girth, whose emailed comment was entered into the record. The preschool's trade name Bornhava (audio: "Born Hava," "Moored Hava," "Fornava") and the business names Raising Cane's, Lasertron, Brick House and 7 Brew are reconstructed from audio and are not on the agenda.
Street validation (run against the Town's official street index). Applied: "Young's Road" and "Young Street" → Youngs Road; "North Elca / North Allocate / North Olickett / North Elegant Greek Creek Road" → North Ellicott Creek Road (the agenda's "505 N. Ellicott Creek Road" is authoritative); "Chateau South" and "Chateau East" → Chateau Terrace South and Chateau Terrace East; "Quanico" → Quantico Court; "Tonawana Creek Road" → Tonawanda Creek Road. Flagged and deliberately NOT corrected: the validator proposed changing Rexham Court to "Durham Court," but 129 Rexham Court is the architect's office address in North Tonawanda — a legitimate out-of-town street that is correctly absent from the Amherst index. The agenda spells the last item's address "4 Mac Arthur Drive"; the Town street index spells the street "Macarthur Drive." The agenda spelling is used here.
What aired. The entire meeting was live-streamed on the Town of Amherst YouTube channel and captured from the start; no portion of this session was closed. The [*] convention flags proper nouns corrected against the official agenda, or heard only in audio and awaiting confirmation from the official Town Clerk's record.