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HomeMy WebLinkAboutMN-BZA-1986-10-06 BOARD OF ZONING APPEALS COMMON COUNCIL CHAMBERS CITY OF ITHACA NEW YORK OCTOBER 6, 1986 TABLE OF CONTENTS APPEAL NO. 1712 C.D. & C.M. ARTHUR - DELIBERATIONS 2 317 LINN STREET DECISION (NO ACTION) 16 MORE DISCUSSION 17 (ALSO SEE 9/8/86 MINUTES FOR FIRST HEARING ON APPEAL NO. 1712) APPEAL NO. 1715 TOM & CLOTILDE PETERS 21 428 NORTH TIOGA STREET DECISION 28 APPEAL NO. 1716 RICHARD A. DARFLER 29 210 CLEVELAND AVENUE DELIBERATIONS 45 " If DECISION 53 APPEAL NO. 1717 CARL A. KAHKONEN (ART'S TRANSMISSION SERVICE) 54 206 EAST TOMPKINS STREET DECISION 61 APPEAL NO. 1718 ROBERT M. ESFORMES 63 203 UTICA STREET If " DECISION 67 APPEAL NO. 1719 H. PATRICIA LORD WITHDRAWN 116 EAST YORK STREET APPEAL NO. 1720 CHRISTOPHER GEORGE CORP. 68 309 EDDY STREET It If DECISION 78 APPEAL NO. 1721 HERBERT W. MARSHALL, JR. 79 207 WEST CLINTON STREET " " DECISION 81 TABLE OF CONTENTS OCTOBER 6, 1986 hearing of the Board of Zoning Appeals CONTINUED APPEAL NO. 10-1-86 ARBY'S ROAST BEEF 82 328 ELMIRA ROAD DECISION 87 CERTIFICATION OF RECORDING SECRETARY 88 BZA MINUTES - 10/6/86 BOARD OF ZONING APPEALS COMMON COUNCIL CHAMBERS CITY OF ITHACA NEW YORK OCTOBER 6, 1986 CHAIRMAN TOMLAN: Good evening . I would like to call to order the meeting of the City of Ithaca Board of Zoning Appeals. The Board operates under the provisions of the Ithaca City Charter , the Ithaca Zoning Ordinance, the Ithaca Sign Ordinance and the Board 's own rules and regulations. Members of the Board who are present tonight : MR. CHARLES WEAVER MR. STEWART SCHWAB MS. HELEN JOHNSON MS. TRACY FARRELL MR. HERMAN SIEVERDING MR. MICHAEL TOMLAN, CHAIRMAN OF THE BOARD MR. THOMAS HOARD, SECRETARY TO THE BOARD & BUILDING COMMISSIONER MS. BARBARA RUANE, RECORDING SECRETARY The Board will hear each case in the order listed in the Agendum. First we will hear from the appellant and ask that he or she present the arguments for the case as succinctly as possible and then be available to answer questions from Board members. We' ll then hear from those interested parties who are in support of the application, followed by those who are opposed to the application. I should note BZA MINUTES - 10/6/86 here that the Board considers " interested parties" to be persons who own property within two hundred feet of the property in question or who live or work within two hundred feet of that property . Thus the Board will not hear testi- mony from persons who do not meet the definition of an " interested party" . While we do not adhere to the strict rules of evidence, we do consider this a quasi-judicial proceeding and we base our decisions on the record . The record consists of the application materials filed with the Building Department , the correspondence relating to the cases as received by the Building Department , the Planning and Development Board 's findings and recommendations, if any, and the record of tonight 's hearing . Since a record is being made of this hearing , it is essential that anyone who wants to be heard come forward and speak directly into the microphones that are directly opposite me here so that the comments can be picked up by the tape recorder and heard by everyone in the room. Extraneous comments from the audience will not be recorded and will therefore not be considered by the Board in its deliberations on the case. We ask that everyone limit their comments to the zoning issues of the case and not comment on aspects that are beyond the juris- diction of this Board. After everyone has been heard on a given case, the hearing on that case will be closed and the Board will deliberate and reach a decision. Once the hearing is closed no further testimony will be taken and the audience is requested to refrain from commenting during our PAGE 1 BZA MINUTES - 10/6/86 deliberations. It takes four votes to approve a motion to grant or deny a variance or a special permit . In the rare cases where there is a tie vote the variance or special permit is automatically denied . Are there any questions about our procedure? If not , can we proceed to our first case? SECRETARY HOARD: The first case is APPEAL NO. 1712 FOR 317 LINN STREET: Appeal of C.D. & G.M. Arthur for a use variance under Section 30.25, Column 2, and an area vari- ance for deficient off-street parking, lot width, and one side yard setback, under Section 30.25, Columns 4, 79 and 12 of the Zoning Ordinance, or for a Special Permit for a Home Occupation under Section 30.269 to permit use of the single-family residence at 317 Linn Street for a single-family residence plus adult day care center for up to nine adults. The property is located in an R-2b (Residential , one- and two-family dwellings) Use District in which an adult day care center is not listed as a permitted use, although child day care centers are permitted under a special permit from the Board of Zoning Appeals. Therefore, the appellants must obtain a use variance or a special permit for the proposed use, and an area variance for the listed deficiencies, before a Certificate of Occupancy can be issued for the proposed use. PAGE 2 BZA MINUTES - 10/6/86 This case was heard by the Board at its meeting of September 89 1486, but held over by the Board pending clarification of applicable zoning issues. Mr . Arthur would you come forward please? CHAIRMAN TOMLAN: Again, for the record , begin by identify- ing yourself. MR. ARTHUR: I 'm Clifford Arthur . My wife is ill this evening so she can' t be here. I received a letter from the City of Ithaca, from Thomas Hoard , since the last meeting of the Board of Zoning , he got together with the City Attorney and they want me to make an appeal as a home occupation rather than adult care center . It was in the paper as an adult care center but the way he specifies here, it should be as a home occupation. Home occupation - non-residential nature to be conducted in my dwelling unit - everything lead into the property . Occupation or activity shall be carried wholly within the principal building or within the building or structure thereto - which it will be. No more than two persons outside the resident household shall be employed in the occupation - we don' t plan on having any employees right now, maybe if we got a little bit bigger we would but right now - you never know. So - no exterior display of signs - which we are not going to do - no reason for that . No offensive odor , no noise, vibrations, smoke, dust or heat or glare shall be produced - which there is no reason to have that . Not generate traffic in any greater volume than would normally be expected in a residential neighborhood - the PAGE 3 BZA MINUTES - 10/6/86 only thing I can say about my residential neighborhood is from the top of Linn Street down to my neighborhood there are a lot of students so the traffic generation there is a lot more than it would be down toward the latter half of Linn Street and we have off-street parking which they can pull in to drop off or pick up . That ' s the situation that we were talking about . MR. SCHWAB: Just refresh my memory - you will be living in the house? MR. ARTHUR: Right . MR. SCHWAB: And you will have been living in the house? MR. ARTHUR: Right . MR. SCHWAB: And several things I recall from last time, you said that if it should become a bigger operation. . . MR. ARTHUR: Well vie would like to - if it does become - I mean, you never know - we are just trying to start this - like I said , my wife has been in the business for eighteen years - doing in-home - private homes. And she just wanted to try to get out of it and do it in our own home. That was the whole objective of. . . MR. SCHWAB: This is just sort of a pilot program - test the waters? MR. ARTHUR: Right . I mean, actually nobody else does it around . Nobody actually has done it . MR. SCHWAB: So if this took off . . . . MR. ARTHUR: If it did then we would have to - you know - maybe get a - try to get another house or something like PAGE 4 BZA MINUTES - 10/6/86 that - if we get bigger then we will have to go to something else. Right now it is just a pilot program, that is all it is. MS. FARRELL: And how many people are you talking about? MR. ARTHUR: Well they say nine, we probably won' t be able to handle nine - I would say seven would be the most . I mean we don' t have that big of a home where you could put nine people in it . I don' t know where they got the nine figure from - like I said last time at the BZA meeting , I don' t know where they got that nine from. It was never brought up - nine - and so we are probably talking five to seven maximum. We don' t have that much room - I ' ll tell you - to put up nine, ten, twenty . We don' t - like I said at the last meeting when I was here - when was that , in August? I think it was in August , yes. SECRETARY HOARD: September . MR. ARTHUR: And at that time we had checked with Albany and the Social Services and the other Boards, and things like that , and they said that you could have up to twenty people in a home without having to have a license. And from a question that you asked - you 've got to have a big place - we don' t have that big a place, we've got three bedrooms and we've got another room off the back which we can convert to a sitting room or a bedroom and then we have a big living room and dining room. PAGE 5 BZA MINUTES - 10/6/86 MS. JOHNSON: Could you refresh my memory on the issue of whether or not these resident people would be cared for only during the day or . . . MR. ARTHUR: We would take in over night , if somebody wanted to stay overnight or something like that , you know. I mean not long care and we will not take invalids, they have to be able to feed themselves, have to be able to go to the bathroom by themselves and stuff like that . It is just like a baby-sitting service where you've got somebody coming in and - you know - maybe you don' t want to leave your parents alone during the day because maybe they don' t take their pills, you want to go away during the day - they don' t take their pills or they put something on the stove and they may burn it up because they are in there watching television. That 's the whole idea - it is my wife's concept of the whole idea. Because she has gone through this - like I say - eighteen years she's been in this business and she has seen where she has come into places and - like a woman will get up and put something on the stove and forget about it or they won' t take their pills or something like that - that 's her main duty in going into homes and doing stuff like this. CHAIRMAN TOMLAN: Further questions from members of the Board? MS. FARRELL: Yes I have a question. What about parking? Are we considering the same parking requirements as there would be for a day care facility, which would be one for the dwelling unit and one per ten people? PAGE 6 BZA MINUTES - 10/6/86 SECRETARY HOARD: Yes. Well , actually you . . . MR. ARTHUR: We are not having anybody stay there that is going to come down and park - just to drop off and pick up . SECRETARY HOARD: It depends on how you consider it . If you consider it as a home occupation - home occupation only requires one space dedicated to the home occupation. MS. FARRELL: And one for residential? SECRETARY HOARD: Yes. MS. FARRELL: So it would still be two? SECRETARY HOARD: Two , yes. MS. FARRELL: Okay and you have, right now, one parking space? MR. ARTHUR: No I can actually pull three in my driveway . MS. FARRELL: So that counts then, Tom? MR. ARTHUR: And actually I have off-street parking so I - I mean, my wife and I both have a car so we can pull off on the street - so - because you've got odd and even parking so we don' t really have to use the driveway per se. CHAIRMAN TOMLAN: There are no exterior changes in the building at all ? MR. ARTHUR: No . Well , yes I explained it to - when I came up the first time - we have a two-deck back - we have a fence around it and we have steps leading down from the back deck to the bottom deck - so there is an exit from the top to the ground floor from the upstairs. CHAIRMAN TOMLAN: To be added? PAGE 7 BZA MINUTES - 10/6/B6 MR. ARTHUR: No , no , it is already there. You should have that on the building - when the Building Commissioner came down there and he inspected the house because of that . CHAIRMAN TOMLAN: Well my point in asking the question was just to make sure that . . MR. ARTHUR: There is an upstairs exit , down from the back , yes. CHAIRMAN TOMLAN: Well , more particularly, most special permits require a plan by virtue of our own Rules and Regulations and I just wanted to get clear on the record , with no exterior changes that that plan may not be required . MR. ARTHUR: I don' t know why he wouldn' t have put it to me, I don' t know why he even set it up - there is a back deck off my back upstairs and then there is a bottom deck - there is a stairway leading down from the top deck to the bottom , deck . SECRETARY HOARD: For the information of the Board , I attended the Human Services Committee of Council meeting on this subject and they discussed generally what might become the requirements for an Adult Day Care Center but the feeling that was expressed was that it was okay with them if this were handled by the Board as a Home Occupation request . MR. ARTHUR: That 's what he said here in this letter , yes. SECRETARY HOARD: And I also had Alderwoman Cummings, who is the Chair of the Planning and Development Committee - she said "my personal preference would be to use the more general home occupation approach immediately, then if it is PAGE 8 BZA MINUTES - 10/6/86 too cumbersome, go to the amendment route. " She didn' t feel that it was likely that there would be more than one application for these, but in the past week we have received another one. But she thought that - in her words here where I said " I intend to so advise the Arthurs, giving them the options of presenting the case to the Board as a request for a Special Permit for a Home Occupation or waiting for the Common Council to amend the Zoning Ordinance to include regulations for adult day care centers" - she wrote in the margin "or of waiting until hell freezes over" . MR. ARTHUR: Right - that is what it said there - "or wait for action from the Common Council but I don' t perceive the Common Council acting too quickly on this . " That is right in the letter here. We have been going through this for three and a half to four months now. CHAIRMAN TOMLAN: Further questions from members of the Board? [none] Thank you Mr . Arthur . Is there anyone else who would like to be heard in favor of granting this permit or variance or whatever it is? [no one] Is there anyone who would like to speak in opposition? [no one] That being the case, it is all ours. PAGE 9 BZA MINUTES - 10/6/B6 DELIBERATIONS ON APPEAL NO. 1712 FOR 317 LINN STREET MR. SIEVERDING: Tom, is either the Charter and Ordinance Committee or Planning and Development Committee actually considering the question of Adult Day Care facilities and what kind of standards would apply? SECRETARY HOARD: They are going to be talking about it next month but very preliminary - or this month, actually - with no intention of acting on it in the near future . CHAIRMAN TOMLAN: So every month for the next six, months we could probably have one. MR. WEAVER: No I don' t think so . Is there any existing law to prevent Mr . and Mrs. Arthur from opening up and proceed- ing? MR. SIEVERDING: Without our doing anything? MR. WEAVER: That 's right . Is there any Statute either State or Local or . . . it would seem to me - to try to answer my own question - it would seem to me in order to do that that the Zoning Officer and/or the City Attorney would have to agree that here is some non-residential use in a residers- tial area and take proceedings - it would seem to me that the Building Commissioner could issue orders which would have no particular effect without someone to enforce them. I just hate to do what these people - these two Committees have agreed they can' t do - and that is to formulate a bunch of standards even in an ad hoc fashion, which may restrict them from using their property rather than grant them a permission - we don' t have off-street parking clearly - PAGE 10 BZA MINUTES - 10/6/86 although we can call this a Home Occupation if we will - it will take some imagination - but I 'm not against creativity . We have some questions - how - should we restrict the number of people based upon the size of the house? Should we take up the question of one or two people staying overnight , does that make any difference? If so, should we be concerned - would that start to become something a little bit more than day care? I , for one am not exactly exuberant over our opportunities here nor do I think we are necessarily in a position to do the Arthur 's a great big favor . CHAIRMAN TOMLAN: Do you think Common Council would do them a bigger favor? MR. WEAVER: I have no idea. I would think that both Council and this Board would be somewhat prejudiced if we grant one with certain conditions - will a committee consi- dering it be somewhat held to some condition that we might cook up here tonight? I 'm just . . . MS. FARRELL: So what do you want to do? MR. WEAVER: It is my position that we not take action without prejudice . I 'm reluctant too to deny the applica- tion in that it might prejudice their situation. MR. SCHWAB: Why is this not a Home Occupation, Charlie? MR. WEAVER: Well it can be if you would like. Ordinarily a Home Occupation doesn' t - merely has customers possibly coming to and from the site, not occupying it for substan- tial periods of time and certainly not overnight and cer- tainly not in the volume that might become a matter- of PAGE 11 BZA MINUTES - 10/6/86 concern, reasonable public concern, on over-crowding and that sort of thing . Again, we might lean upon the Building Code or the Housing Code which , again, hasn' t considered this particular use, to the best of my knowledge - so we are out there ahead of several local ordinances and I - you know, if there isn' t a law against it , why not proceed? I am speaking now in behalf of the applicant . . . MR. SCHWAB: I guess my question is, you start off your remark by saying you aren' t aware of anything prohibiting him from acting right now. Well there is something that requires a permit for a Home Occupation. . . MR. WEAVER: If it is. MR. SCHWAB: If - actually a home occupation of a non-resi- dential nature - you could argue that this is of a residen- tial nature because really all they are selling is their house - in fact the sleeping would almost make it more of a residential nature. I guess I don' t quite see why not say - although a little unique in - perhaps - in findings that way - why not act on this as a Home Occupation? MR. SIEVERDING: I think the difference really has to do with the fact that there is care being provided - I mean, you have a number of people - a number of adults who will be staying in this property for a long period of time, which is quite a lot different than somebody who - as part of a home occupation is providing some service that gets delivered on a piece of paper . You know, I think it is a whole - sort of a health and safety question here that without some kind of PAGE 12 BZA MINUTES - 10/6/86 standards to apply to , it is very difficult to judge whether or not it ought to be allowed . MR. SCHWAB: Well I don' t see - reading Home Occupation - for one, it does involve things like teaching music , one person at a time, an art studio which includes bringing some people in, and there is no safety issues involved in Home Occupation other than offensive odor , noise, vibrations, smoke, dust , heat or glare. . . MS. FARRELL: I think it is a really different level of use though - when you talk about bringing someone in one at a time for lessons or something , I mean (unintelligible) in your home, we are talking about seven people, about nine people, you know, sort of to be determined number and I don' t know how we would decide what 's the right number . I mean, if we were talking about it as a child day care facility, we would be talking about a certain parking - we would be looking at it a lot differently than we would look at something that 's considered a Home Occupation. MS. JOHNSON: But given that we have no standards, are there any standards at the State level for adult day care facili- ties? MS. FARRELL: No . SECRETARY HOARD: But the option I think that Charlie is getting at is that this is an unregulated type of business under the Zoning Ordinance - the Zoning Ordinance is silent on it - whether intentionally or . . . PAGE 13 BZA MINUTES - 10/6/86 MR. SCHWAB: Is that right or can you do any kind of occupa- tion out of your home in a residential neighborhood under the zoning law if it is not called a - I still don' t see this clearly - not called a home occupation. Is there a presumption that you can operate a business out of your home under the zoning? Last month I was arguing that but I - this month that doesn' t strike me as right . MR. WEAVER: Well as a practical matter in the present instance, the only regulator in sight is the City of Ithaca and it is my position that rather than developing a use in an ad hoc fashion, developing new regulations in the absence of legislative action, that they are asking us to do what they are not willing to do in some case, and , as a practical matter , if the Arthurs proceed without any particular authorization, who is to stop them? The same City that may some day develop a regulation. It would seem to me that if they are not going to alter their dwelling that the risk is not very obvious. If, in fact , it does create some diffi- culty there will be plenty of time to deal with it . And I 'm not being the attorney, I 'm trying to be (unintelligible) MR. SCHWAB: Well that makes some sense to me, that state- ment , we say absolutely nothing , whether this is permitted or prohibited by the Zoning Ordinance . The fact that we are trying to say absolutely nothing at all without prejudice. MR. WEAVER: Well one of our obligations. . . CHAIRMAN TOMLAN: A resolution of silence, would you. . . PAGE 14 BZA MINUTES - 10/6/86 MR. WEAVER: No , one of our obligations is interpretation and if we have an appeal before us for a home occupation we can - it seems to me - we can determine that - we could - we might - decide that home occupation is not applicable and in that fashion - not hear the rest of it in that it is not an applicable section that the appeal is under and leave the question. . . CHAIRMAN TOMLAN: So you are suggesting we. . . MR. WEAVER: I 'm not trying to lead the band here, I just wanted to express my reservation. . CHAIRMAN TOMLAN: Are you suggesting that vie ignore both the use variance - because essentially we can go two ways - use variance or the special permit . You are saying you want silence on both sides of the question? MR. WEAVER: I don' t agree with what you just said . I don' t believe we - in order to give permission to do this they have to have a use variance and because the building is non-conforming in an area way they need an area variance as well . CHAIRMAN TOMLAN: So are we coming any closer to a motion? PAGE 15 BZA MINUTES - 10/6/86 DECISION ON APPEAL NUMBER 1712 FOR 317 LINN STREET The Board of Zoning Appeals considered the request of Clifford D. and Catherine M. Arthur for a use variance to permit use of the single-family residence at 317 Linn Street for a single-family residence plus adult day care center for up to nine adults. The decision of the Board was as fol- lows: MR. SCHWAB: I move that the Board take no action on the application for a Special Permit in Appeal No. 1712. P MR. WEAVER: I second the motion. FINDINGS OF FACT: 1 . This is done without prejudice. 2. If some enforcement action or regulations occur at a future time the Board will decide the application at that time. 3. The Board makes no interpretation on whether the Ordi- nance currently prohibits this activity. VOTE: 5 YES; 1 NO MOTION CARRIED PAGE 16 BZA MINUTES - 10/6/86 MORE DISCUSSION AFTER THE MOTION WAS MADE BUT BEFORE THE VOTE WAS TAKEN: CHAIRMAN TOMLAN: From my own point of view, while I can understand the feelings of the Board as a whole, I still nevertheless feel some regret of the fact that we are the Board of Zoning Appeals and I think owe it , in a sense, to the appellant to deal with the issue. I know it - the City - in a sense - to deal with the issue up front and make a stab at it . I think to be as conservative as possible and grant a Special Permit , in my own mind is probably the clearer track , particularly by virtue of the fact that - as we heard - there may be other people who are coming behind us - coming behind this particular appeal - in a very similar nature and while I don' t like making policy or fashioning policy ad hoc either , in fact I 'd be the last to go that route, I 'm also realistic from another point of view saying - I guess to myself - it ' s unlikely that the Council will be able to deal with that one either , in time, and we find ourselves behind the eight-ball again the next time, then what do we do - take no action on that one too? It seems as though we set up a bad pattern in a different fashion as a Board , not to deal with the issue on its face and just try to reach as best a conclusion - which is what we are really about , anyway, as possible. MR. SCHWAB: So the conclusion might be to grant a home occupation limited to seven people? PAGE 17 BZA MINUTES - 10/6/86 CHAIRMAN TOMLAN: Or five or whatever . But I feel rather - I guess the thought that occurs to me is that if in effect this comes up again - or anything similar to it comes up again, not to deal with it on its face is simply saying nothing is going to happen - maybe in some ways opening us up for problems in a different fashion that I have yet to forsee. MR. SIEVERDING: From my way of thinking there is a greater risk in treating each of these cases in a very ad hoc fashion and the probability or the possibility of treating someone unequally in the absence of any kind of standard guideline by which to judge these propulsions. And I think our taking this action, certainly in light of the fact that there are other people contemplating this kind of an appeal , it sends a message to C & 0 and P & D relative to what they ought to be paying some attention to . I think this is going to be a reoccuring problem and I think they are the ones who need to address it and establish the policy that we need to judge these . . . MS. FARRELL: I agree. I feel like - I 'm more concerned hearing that there are possibly other appeals of this nature coming along - because I feel that we would be piece-meal sort of making up the rules as we go along and I would rather see some policy coming out and sending back a "no action" - sends back a message that some policy needs to come along pretty quickly. PAGE l8 BZA MINUTES - 10/6/86 CHAIRMAN TOMLAN: I don' t doubt that you are both right , I am realistic enough to know that that policy ain' t going to come any time soon. And I think you know it too . MR. SCHWAB: Charlie's practical point is we could deny this application - we could grant it - we could no action it - it is all going to have the same practical effect unless Tom, or someone else comes after these people. Of course, that is true in every case . MR. WEAVER: Well , listening to the Chairman's concerns, one of my concerns was, will this solution allow or disallow overnight occupants? Will it settle and limit numbers based upon what the number of rooms or doorways or square footage or which street it is on . . . . CHAIRMAN TOMLAN: You could raise infinite questions, Charlie, I think it is our job to somehow or another steer between those. MR. WEAVER: These are the immediate ones raised by this particular application, not trying to dream up what may happen - once again - with a similar but somewhat different because of the structural location or whatever . CHAIRMAN TOMLAN: I ' ll put back my chairman's hat and ask if there is any further discussion? Shall we have a vote? SECRETARY HOARD: The vote on appeal number 1712 is 5 yes and 1 no vote. CHAIRMAN TOMLAN: So the motion passes. It stands as it is. MR. ARTHUR: So I can go ahead - am I right? MR. SCHWAB: We aren' t saying you cannot go ahead . PAGE 19 BZA MINUTES - 10/6/86 CHAIRMAN TOMLAN: We aren' t saying anything . MR. ARTHUR: Okay. Thank you . Goodnight . PAGE 20 BZA MINUTES 10/6/86 SECRETARY HOARD: The next appeal is APPEAL NO. 1715 FOR 428 NORTH TIOGA STREET: Appeal of Tom and Clotilde Peters for an area variance for deficient setbacks for two front yards and one side yard under Section 30.25, Columns 11 , 12 and 13 of the Zoning Ordinance, to permit conversion of the single-family home at 428 North Tioga Street to two dwelling units. The property is located in an R2b (Residential , one- and two-family dwellings) Use District in which the proposed use is permitted ; however , under Section 30.57 the appellants must first obtain an area variance for the listed deficiencies before a building permit or Certificate of Occupancy can be issued for the conversion. CHAIRMAN TOMLAN: Please identify yourself for the record? MR. PETERS: My name is Tom Peters, my wife cannot be present this evening , she is indisposed . CHAIRMAN TOMLAN: Do you want to recap the reasons for the appeal? MR. PETERS: Yes. The house at 428 North Tioga Street is a two-story dwelling in a very beautiful area of downtown Ithaca where there is too little living space, as you know. I propose to utilize the building the way it has been used before. There are two kitchens in there, but only one and a half baths. I would like to make legal what has, perhaps de facto , been in existence for quite some time and the area PAGE 21 BZA MINUTES 10/6/86 according to the Zoning Code - I forget what the word is - allows this. There are some deficiencies which relate to the distances of the various buildings from the property lines which I think is not necessarily relevant to the question that I am asking , which is that I be allowed to legalize what is defective with this - namely two apartments in the building which is there. CHAIRMAN TOMLAN: Tom the matter of - just a question on your application - at the bottom of page 2 you note that the property is a two-family dwelling , first floor - three bedrooms and the second floor - two bedrooms, as shown in the accompanying plans, did you submit those? MR. PETERS: My apologies . They were not taken with the application. CHAIRMAN TOMLAN: Okay . Would you mind circulating those? MR. PETERS: I have them, yes. CHAIRMAN TOMLAN: Thank you. MR. PETERS: I also have some photographs here which were taken of the back of the building . It is proposed to remove that lean-to , which was at one time added on to that rather beautiful building - it is rather shabby back there and also reduces what is, essentially, three parking spaces to two and three-quarters in a squeeze and I would like to remove that shack at the back - I ' ll circulate pictures of the shack - lean-to addition to the building . MR. WEAVER: Frame addition. MR. PETERS: I beg your pardon? PAGE 22 BZA MINUTES 10/6/86 MR. WEAVER: Frame addition. MR. PETERS: That part of the building is also derelict , by the way . CHAIRMAN TOMLAN: Questions from members of the Board? MR. WEAVER: Yes. Your reference to make legal what is already there - you are saying that there are already two apartments there? MR. PETERS: There are two kitchens in the building - it is not presently being used as such but there are two kitchens, one upstairs and one downstairs. There is a half-bath down stairs and a full bath upstairs. MR. WEAVER: According to these plans, there will be two complete apartments? MR. PETERS: Two complete apartments, yes. MR. WEAVER: Is there a lease on this that will restrict the use (unintelligible) MR. PETERS: There are no leases on the apartments at present . MR. WEAVER: Not as a condition of sale or anything of that sort? MR. PETERS: As a condition of sale of our purchase that we may. . . MR. WEAVER: Does it have to do with the occupancy of either apartment? MR. PETERS: It has to do with the positive reaction of this Board . CHAIRMAN TOMLAN: In other words, no sale . . . PAGE 23 BZA MINUTES 10/6/86 MR. PETERS: No sale unless . . . MR. WEAVER: I understand that . . MR. PETERS: That 's the only condition that is on the property at the moment . s MR. WEAVER: So none of the present tenants has any rights , as a result of this. . . MR. PETERS: None. MR. SIEVERDING: So it isn' t the present use (unintelligi- ble ) two units proper . MR. PETERS: As far as I understand , it is presently used by one person alone. The upstairs is unoccupied . CHAIRMAN TOMLAN: And you don' t plan to move into the property essentially? MR. PETERS: No . MR. SCHWAB: So the removing of this shack - will that reduce the area deficiencies? I haven' t got it fully pictured in my mind . MR. PETERS: I don' t think so , no . The main building itself is, I believe - I don' t have the documents in front of me - I believe only a foot and a half from the neighboring property on North Tioga Street and the other deficiency is the beautiful little red barn which is only about ten inches away from the street line on Cascadilla Creek , I forget the name of that street . Plus I think there is also front yard deficiency towards North Tioga Street , the porch extends a little bit too far toward the street . MR. WEAVER: You have two front yards . PAGE 24 BZA MINUTES 10/6/B6 MR. PETERS: That 's right , there are two front yards. MR. SIEVERDING: Cascadilla Street being considered the other? SECRETARY HOARD: Yes. MR. WEAVER: But the other side yard is the north yard . MR. PETERS: That 's right , towards the neighboring property on North Tioga . MR. SIEVERDING: Tom, is this a property that has been converted from single-family to two-family use without ever having gotten a variance? SECRETARY HOARD: It ' s a property that we've had problems with - it was before the Board before and it ' s an Accounting Office and used for apartment on the second floor - this will straighten all that out . MR. SCHWAB: The footprint though is shrinking a little bit and nowhere being added to . MR. PETERS: That 's right - nothing being added except one more parking space where that footprint has been reduced . MR. SCHWAB: Right . CHAIRMAN TOMLAN: So to sum up then, Tom, what are the practical difficulties and special conditions that you would see in this property? MR. PETERS: I beg your pardon? CHAIRMAN TOMLAN: To sum up , what are the practical diffi- culties and special conditions which would warrant the granting of the area variance? PAGE 25 BZA MINUTES 10/6/86 MR. PETERS: Well the difficulty is simply the existing distances from the boundaries which , of course, were estab- lished before - I believe those boundaries were made legal boundaries and therefore to make those conform to what is now law would require chopping a piece off the main house and removing that little barn which is one of the nicest and most attractive little barns in downtown Ithaca. So those are the difficulties which would be impossible to overcome in order to comply with the Ordinance. Plus removing the very beautiful front porch on North Tioga Street . MR. SCHWAB: Have you had any reaction that you are aware of from your notices? MR. PETERS: As far as I know there has been no reaction at all . Tom have you received any reaction? SECRETARY HOARD: No . MS. FARRELL: Yes. SECRETARY HOARD: Yes - it is on the outside of the folder . MR. PETERS: Would you like it read into the record? CHAIRMAN TOMLAN: We have copies. MR. PETERS: This is a letter in support . CHAIRMAN TOMLAN: Further questions from members of the Board? (none) Thank you. Is there anyone else who would like to speak in favor of granting the area variance? MR. WELCH: I 'm Judd Welch , the owner of the property and I think Tom has a lot of good ideas to fix it up into a very nice two-family house. I 've been occupying it myself since 1979 - it was occupied as an accounting office. I 'm sure PAGE 26 BZA MINUTES 10/6/86 the neighbors will be glad to get rid of me. We've never caused any trouble with having it as an office except I was not legal . In fact we only had one bathroom - one full bath . Does anybody have any questions of me? CHAIRMAN TOMLAN: Questions from anyone? Did you ever attempt to rent it essentially in the present scenario to one individual or one family or did you ever - essentially you have just owned it and lived in it all these many years? MR. WELCH: I rented the apartment upstairs . When I first bought it I lived up there with a friend of mine that worked for me. We had the office downstairs . He retired and then I rented it out to an elderly lady and kept my office downstairs. CHAIRMAN TOMLAN: Okay . Thank you. Is there anyone else who would like to speak in favor of granting the area variance? (no one) Is there anyone who would like to speak in opposition? (no one) That being the case, a motion? PAGE 27 BZA MINUTES 10/6/86 DECISION ON APPEAL NO. 1715 FOR 428 NORTH TIOGA STREET The Board of Zoning Appeals considered the request of Tom and Clotilde Peters for an area variance to permit conver- sion of the single-family home at 428 North Tioga Street to two dwelling units. The decision of the Board was as follows: MS. FARRELL: I move that the Board grant the area variance requested in Appeal Number 1715. MR. WEAVER: I second the motion. FINDINGS OF FACT: 1 . The proposed use is permitted in the district and would maintain the character of the neighborhood. 2. Practical difficulties have been shown in meeting side yard and two front yard setbacks which could only be solved by dismantling the present house. 3. The proposed changes would not exacerbate any current deficiencies. VOTE: 6 YES; O NO AREA VARIANCE GRANTED PAGE 28 HZA MINUTES - 10/6/86 SECRETARY HOARD: The next appeal is APPEAL NO. 1716 FOR 210 CLEVELAND AVENUE: Appeal of Richard A. Darfler for a Special Permit for a Home Occupation under Section 30.26, and as defined under Section 30.3, Paragraph 48: of the Zoning Ordinance, to permit the use of the proper- ty at 210 Cleveland Avenue for a contractor's office. The Building Commissioner has held that the proposed use does not qualify as a home occupation because the business is not being conducted on the same premises as the owner's home, and because a contractor 's office does not fall within the definition of a home occupation, and has ordered that the appellant cease and desist this use. The property is located in an R2b (Residential , one- and two-family dwellings) Use District in which home occupations are permit- ted only with a Special Permit issued by the Board of Zoning Appeals. MR. DARFLER: I 'm going to jump right in and have another talk about home occupations. . CHAIRMAN TOMLAN: Excuse me, if you will identify yourself for the record? MR. DARFLER: I 'm sorry, I 'm Richard Darfler of 212 Cleve- land Avenue. I think most of the issues are pretty clear , there is - I won' t have any exterior signage, no glare, no excess traffic , I don' t have a lot of people that show up at PAGE 29 BZA MINUTES - 10/6/86 the office, an occasional salesman, an occasional client but for the most part most of my business is on job sites because that is where the work is. I don' t make any money with people in the office - all my work in the office is unpaid , so to speak . Two issues I see that are arguable. One issue - well there are three. One issue hopefully I have defused - I hope you got a letter from Ed Crossmore's office, signed by Stephen Bowman . . . MS. FARRELL: No . MR. DARFLER: No? He was supposed to have mailed it - "Dear Sirs: My client , Richard Darfler and his wife Marlene Darfler , are the owners of the adjoining lots at Tax Parcel Number 79-4-10 and 79-4-11 , which is 210-212 Cleveland Avenue. Please consider this letter their request to combine both lots to form a single parcel and consequently a single tax parcel number for tax billing purposes. " He was to send a copy to Tom's office, copy to me and a copy to the Assessor 's office - if you want to see that . CHAIRMAN TOMLAN: Please. MR. DARFLER: The second issue is that it is not allowable for a contractor 's office - that contractor 's offices aren' t covered under Special Permit and a third issue as I see it , that we have too many employees, to be specifically covered under the Home Occupation. Well we do have - I mean it would be easy to categorically deny me a Special Permit based on the number of employees I have. I actually have only one employee who works in the office, my employees work PAGE 30 BZA MINUTES - 10/6/86 on job sites, they are not in the office, they spend their time working on job sites. They generally call to find out where they are going, if they don' t know where they are going . What we have in the office is a paper pushing operation and it ' s part of every contractor 's business, I feel a lot of contractors - generally small contractors have a home business - they have an office in their home that they operate out of. They may not advertise it as such but there is the paper pushing end of any business - it 's involved with taxes and billing and estimating - job costing -- all of those things. The reason why we spend a good deal of money putting together a computer and doing the work necessary so that we can fulfill that end of the business. I see in the - oh , the Home Occupations particularly include professional offices of lawyer , engineer , architect - I consider what we have a professional office. I am a profes- sional . I don' t have any degrees in contracting - they don' t have any degrees in contracting but specifically they mention architects - most of my time is spent - it is not spent dealing with estate - on their issues - it is spent dealing with architects - he draws up plans - sends them to me - I look at the plans - I send him back a price - he sends me back addendums - I send back another price - I sign a contract - we go back and forth - I 've got A. I .A. former G702 billing - on and on and on. It 's - you know - to say that an architect would be allowed to maintain a home business, not a contractor , seems to me a pretty fine point PAGE 31 BZA MINUTES - 10/6/86 where our finger prints are on the same pieces of paper for the most part . That 's about all the issues I can see, I mean it 's possible - to specifically say we do riot pass one test or another , I think the intent - it would seem to me the intent of the Special Permit for a home business is to keep down the amount of - to have a building that looks like it is part of the residential area - I have some pictures, if you care to see pictures, they are not very good but I think - there is the front and rear . The blue building is my home, the white building is my office - they , in effect , face each other . Behind the office is a space between the office and the next building - 208. To the west of my property there is an area and 214 - the two houses look at each other and share a common driveway . They act as one parcel - I have storage - personal storage - in the rear of what is now 210 - I have a wood shed to the rear . In general 210, I think , I sort of scaled out - I am using approximately forty percent of the property at 210 Cleveland Ave. - if you would like to see plot plans and floor plans - approximately forty percent of 210 Cleveland Ave, houses my business, the rest of the property - the rest of the struc- ture is - how you say - undeveloped . We don' t have any machines in there - we don' t have any storage in there - there is nothing picked up or taken out of the office for use on job sites - whatever leaves the office is mailable or leaves by phone. I think we try and maintain a low profile in the neighborhood so that people aren' t aware that we are PAGE 32 BZA MINUTES - 10/6/86 even there. I 've had numerous people who can' t find us for one reason or another when they try and find us. So , we are trying to keep this as a residential - make it look like it is a residential property without any excess traffic or noise or outward appearance. I think the inter-it of the Special Permit is for - when they say, not more than two persons outside a residential household employed in the occupation - I take that to mean that no more than two people in the building working so that you are not turning it into a factory or a large number of people working in the occupation. Yes, we are contractors - yes I have people in the field who are employed by me but no , there is only one person, besides myself and my partner , that is in the building doing anything that pertains to the business and the one person that I employ is a bookkeeper who lives down the street , who walks to work - she doesn' t even have to carry her lunch and she is there only part time - about five to ten hours a week , depending on what kind of paper work we have to do and whether it is the end of the quarter or the end of the tax year . CHAIRMAN TOMLAN: Questions from members of the Board? MR. SIEVERDING: What kind of jobs do you get involved in? MR. DARFLER: It 's a mix . Lately we've been doing a number of commercial works. We just finished Footloose on the Commons, Especially in Ithaca on the Commons, Stewarts - Iry Lewis, finished a bed and breakfast up in Collegetown - 140 PAGE 33 BZA MINUTES - 10/6/86 College Ave. , we do some residential work - as far as interiors. . . MR. SIEVERDING: How many people are involved? Say, how many carpenters and laborers and such do you keep on your payroll and how much do you sub out? MR. DARFLER: It fluctuates . Basically we are subbing - at this point we are subbing out - well we just did third quarter - it seemed to me it ran around thirty-five percent . Right now we are - sub-contractors are thirty-five percent of our gross. I think the last figure was about ten percent of our gross is employee's salaries at this point for the first three quarters of '86. Now the rest of it is materi- als, overhead , sub contractors and everything else that goes into a business. We have, for instance, fluctuating - we go from three or four to eight employees at any one time. MR. SIEVERDING: And you bid these jobs just like any other contractor and also in competition with other contractors? MR. DARFLER: Actually that 's what I spent last week and probably will spend this week doing - sitting in the office doing estimates - doing bids - doing billing , those things that keep us running . MS. FARRELL: What other things are in the building besides your business space - there is warm storage and cold stor- age, what is in those spaces? MR. DARFLER: It 's personal storage. I have toys - toys that end up outside in the summer , end up there in the PAGE 34 BZA MINUTES - 10/6/86 winter . Odds and ends - nothing in particular . And the rear end is my wood - for 212 - for burning - wood stove. MR. WEAVER: Tell me, you use - sort of interchangeably - the word " I " and then "my partner" . . . MR. DARFLER: I have one partner . MR. WEAVER: Is that a partnership? MR. DARFLER: Yes, it is a partnership . MR. WEAVER: The partnership doesn' t own any real estate? MR. DARFLER: No . I own the real estate individually . MR. WEAVER: So this is a - the house at 210 is leased to the partnership? MR. DARFLER: No there is no formal lease - no money changes hands - I own it and I use it as my home occupation. I have one partner in that occupation. MS. FARRELL: Where does your partner live? MR. DARFLER: He lives out on DuBois Road where we have most of our storage. MS. JOHNSON: Could you give some explanation why it has been three years since the Building Commissioner wrote about this? MR. DARFLER: I 'd rather not . I can' t give a good answer to that , it 's my own fault - I intended to do something - I knew this was hanging over my head - I should have done something earlier - it 's one thing that got lost and there was - Tom finally caught me at not doing anything so now I am doing something . MR. SCHWAB: Could you do this work out of your home? PAGE 35 r i BZA MINUTES - 10/6/S6 r MR. DARFLER: It takes a little more space than I have in my home. We used to work out of one of my ex-partner 's homes for a long time and all of our stationery and everything is (unintelligible) complaint we have been having - he is no longer with us, he works - he took another job . And that 's pretty typical for most contractors - they work out of their home without having a home occupation - they have an office in their home that they do phone calls at night to call people up and set up appointments for bidding , for looking at jobs - right now I don' t have the room in my home to do this kind of work . Since we formed the company, the part- nership seven years ago , I have also had two kids so I am using every bit of space in my home right now - which only has about twelve hundred and eighty-five square feet , it 's a small two-story house, two bedrooms. MR. SIEVERDING: Given the volume of business that you do and the number of people that you employ from time to time and the volume of contracts that you apparently do get for jobs around town, why shouldn' t we consider you a commercial use the way it is written - like many of those other con- tractors? MR. DARFLER: Well in effect I am - yes I 'm like many of those other contractors but I think I fall under the intent , if not for the most part under the - legally as a home occupation and why wouldn' t an architect fall under the same - be required to have the same sort of space or set up as (unintelligible ) It is a matter of skill - we are not that PAGE 36 BZA MINUTES - 10/6/86 big comparatively and ten employees is - I 'm sorry - eight employees maximum is not a big operation. We are really only talking about - well I have a little under three hundred square feet of space for an office. That ' s not a very big office. What we have mostly in that office is desk space and book shelves for all the catalogues that I have to have in order to look, things up in trying to discern prices and we have three phones so that we can have one near us - it ' s - yes I 'm a contractor and I do bid against people but it 's paper pushing , it 's electronic - it 's not having anything to do with pieces of wood , nobody delivers any wood to our office - I wouldn' t know what to do with them, I don' t have space for storing anything in my office other than papers - that takes up all of the three hundred square feet and I wish there were more but obviously the expense of renting an office is an expense - I don' t know what commer- cial rates are for floor space at this time - we 've also put the money into renovating the house - I probably should have brought the "before" picture - it was condemned when I bought it and the only reason I could conceive of buying it - it certainly wasn' t on speculation - was that here was a place that was usable right next to my house that I could set up my office in it and be near my family and be - without being in my house - have a home occupation. • MR. SIEVERDING: But the building permit that was issued in 1982 made it perfectly clear that the only allowable use was PAGE 37 i BZA MINUTES - 10/6/86 residential use - there is a note on the back of the build- ing permit . . . MR. DARFLER: Yes that I needed - well the letter previous to that was if I intended to use this as a business I had to get a special permit . MR. SCHWAB: Could it be used as a residence? MR. DARFLER: Not at this point . All there is the front three hundred and fifty square feet of that house is usable, there is no kitchen, no bedroom and the back section - there is a two-story - story and a half - section that is the office and then there is a longer section off the back that used - it is in various stages of disrepair - I did put a new roof on it just so that it wouldn' t get any worse but it 's about six or eight inches of leaning in the exterior walls - top to bottom. The floor is mostly - in the fur- thest - the next to the furthest back section, the floor is shot . It has been in grave disrepair for the last who knows how long and the section which is now my wood storage is disposable at this point . It will eventually be torn off - it 's not salvageable. MR. SIEVERDING: You don' t think that the property as a whole is not usable as a residential property? MR. DARFLER: If you throw in a (unintelligible) yes. MR. SIEVERDING: Okay . MR. DARFLER: I am not contending that it can' t be used as residential property. That wasn' t my intent at all , that 's PAGE 38 BZA MINUTES - 10/6/86 why I am not asking for a variance. I am asking for a Home Occupation in an Accessory Structure. MR. SCHWAB: The main difficulty I have with this and I haven' t reached a final resolution, is not distinguishing or not distinguishing you from an architect , (unintelligible) in sympathy with that , it seems to me a home occupation as an architect would live there. . . MR. DARFLER: Well now, it is allowable - a Home Occupation is allowable in an Accessory Structure. MR. SIEVERDING: But the key I think is that the essential activity in which the business is involved is conducted on the premises and I don' t think your essential activity is pushing paper , your essential activity is constructing buildings and doing renovation jobs. In that regard . . . . MR. DARFLER: Let 's say ninety percent of my gross is involved in pushing the papers and (unintelligible) . . . MR. SIEVERDING: Yes but is your business pushing papers or is your business. . . MR. DARFLER: Well architect 's business is having buildings built . CHAIRMAN TOMLAN: That 's more particularly pushing papers . . MR. DARFLER: What 's that? CHAIRMAN TOMLAN: The architect 's time is spent over the drafting board . The contractor 's time is typically spent out in the field . That 's predominantly the difference. MR. DARFLER: Okay . PAGE 39 BZA MINUTES - 10/6/86 MS. FARRELL: I 'm a little confused also , that how many people are in the building there. There is you, your partner , the bookkeeper , is there a receptionist , is there - okay, there is you. . . MR. DARFLER: No . If we aren' t there the door is locked . That 's why people don' t come looking for us there. There is no way to get us if we aren' t there, unless they happen to know the job site we are working on. We have an answer- ing service they have to call . MS. FARRELL: We got a letter from Charles Fay and it says something like a separate brief period around eight a.m. and again at five p .m. activity at the office is minimal . Why is there more activity at eight a .m. and five p .m. ? MR. DARFLER: At times some employees may stop by for a moment to find out where they are working and then they come back and fill in a time card . That is the only time they are there. I almost take issue - some - yes, in effect the physical product that I produce is construction but what goes into that - you know, that part of it is away from the residential neighborhood - that 's not involved in the residential neighborhood . If I had a shop in the back I could see your point as to the fact that yes, you are involved in construction in a residential neighborhood but in effect what goes on in that business - and I think that 's the intent of the home occupation is that it be very quiet , that there is nothing that - no glare - no noise - no traffic - nothing to distinguish this from a residential PAGE 40 BZA MINUTES - 10/6/86 neighborhood and in fact what we do there is not distin- guishable from a resident - doesn' t distinguish us from a residential neighborhood . What we do in that building , and we try to make it look like part of the residential neigh- borhood and I hope that doesn' t lead people to feel like it is not an accessory structure because we made it look like part of the neighborhood . I suppose we could have made it look like part of the garage and put in a garage door but I would rather not . We took great pains to try and make it look like just another house in the block , with all sympa- thy toward the neighborhood and the use that goes on in the neighborhood - I am not asking to stand out , we just want to be able to use it - I just want to be able to use it for my home business where I shuffle papers. When I am doing construction I am not at the office, I suppose it might be easier if I form a second company - a second partnership that is a - you know -- there is a - right now there is another company called Proticon - I 'm not quite sure what they do but generally what they do is project coordination - project managers - and that is basically what I am doing in this office. I am a project manager only I 'm sitting in an office. I can' t do anything on a job site, I can' t make any noise and there is no use in bringing my tools in - my tools are already in the office and that 's the computer and the phones. PAGE 41 92A MINUTES - 10/6/86 MR. SCHWAB: I 'd like to ask you a bit more about how this is an accessory building - this is the only building on that lot , is that right? MR. DARFLER: Yes, that is correct . That ' s why I 'm joining the two properties. MR. SCHWAB: As I understand the letter , that 's for tax purposes - that 's not un-sub-dividing or whatever that - in other words you could easily sell , still - 210 - not 212 or vice-versa. MR. DARFLER: That I don' t know, that 's why I ask the expertise of Steve Bowman, who is a lawyer and I asked him to . . . MR. SCHWAB: You are doing it for tax purposes, I have no idea why that letter - except that you want the single bill for the two lots for taxes. MR. DARFLER: I presume that means on the assessor 's roll that it is one property. That 's what I am assuming , I mean, that was my intent , that 's what I asked Steve Bowman to . . . MR. SCHWAB: You couldn' t sell 210. . . MR. DARFLER: Adjoin the properties without - you are right , I couldn' t sell it . MS. FARRELL: You would have to get a subdivision - is that what it means Tom, when you have to get a subdivision to sell it . . ? SECRETARY HOARD: I don' t know just what the steps are, to tell you the truth , to make it all one. PAGE 42 BZA MINUTES - 10/6/86 MS. FARRELL: Okay - subdivision is always complicated but is just joining them together that simple? SECRETARY HOARD: It is much simpler than sub-dividing . MR. DARFLER: It couldn' t be much more complex could it? But that was my intent , I assumed that that was the neces- sary steps to sub-multiply, if that 's the . . . . MR. SCHWAB: You asked Steve Bowman to join these parcels so that this one can be thought of as accessory? MR. DARFLER: Yes I asked for his expertise on that and I said this is the situation, what do I do? And he said , this is what you do , I will send the letter to Tom Hoard 's office to that affect - which unfortunately it didn't get there but . . . SECRETARY HOARD: He may have sent it over to the Assessor . MR. DARFLER: He may have. MR. WEAVER: Yes the address was quite wrong to get it to , the Building Department . I 'm reading Accessory Building , which I assume you have in the Zoning Ordinance and I am quoting "shall mean a structure, the use of which is inci- dental to that of the main building and which is located on the same premises. " Let ' s assume that this is a single premise that you successfully bonded the two lots so that they are one and this will be incidental to the main use of the property in that case. MR. DARFLER: That 's my interpretation, yes. . . MR. WEAVER: I can imagine you would but I am wondering how I am going to come to that conclusion that running a PAGE 43 BZA MINUTES - 10/6/86 contracting business isn' t rather a major operation and not precisely incidental to the occupation of that land down there. This is land use that we are talking about here. MR. DARFLER: It is incidental to the use of the property is residential - in other words - this - the plot plan that we are looking at - a small fraction - three hundred and fifty square feet of this property is being used for a home occupation - the entire rest of this property is being used as residential for I do have storage in this area - under cover - including my wood storage and personal property . This is my garden space - this is my back yard , which my kids use and this is my home. . . MR. WEAVER: Thank you . CHAIRMAN TOMLAN: Further questions from members of the Board? [none] Thank you. Is there anyone else who would like to speak in support of this application? [no one] Is there anyone who would like to speak in opposition to this application? Cno one] That being the case, it is ours. PAGE 44 BZA MINUTES - 10/6/86 DELIBERATIONS ON APPEAL 1716 FOR 210 CLEVELAND AVENUE MR. WEAVER: Mr . Chairman, I want to share this with the rest of the Board . CHAIRMAN TOMLAN: Sure. MR. WEAVER: Question of law here. Is this a property or are these two properties? And to what authority do we go - right now we have testimony and we have a letter addressed to some other authority - it seems to be restricted - narrow in that it is for tax purposes. I 'm not convinced that I can agree that it is a single property and that therefore this is an accessory building . Procedurally I haven' t the slightest idea how the City finally accepts the melding of two properties. CHAIRMAN TOMLAN: I would tend to agree with you . It seems to me on the face of it that it is two separate properties at this point , not one. MR. SIEVERDING: The only thing is that the letter - I mean, it is a request . CHAIRMAN TOMLAN: That 's right . MR. SIEVERDING: Request to combine, it is not an indication of fact that it has been done and that the two parcels have been combined into one (unintelligible ) MR. SCHWAB: I would certainly be opposed if it is not a single parcel , and until a letter is received explaining that it was, it seems to me there is just no way it can fit the definition of home occupation. But , supposing it is, and it seems to me if he wants it to be at some point he PAGE 45 BZA MINUTES - 10/6/86 will be able to make this a single parcel (unintelligible) the two adjoining ones. I assume that , taking a point , if an architect wanted to do business in the second spot - in this second building - I wouldn' t have too much trouble with that just by what you were reading on accessory apartment incidental to the main thing - it seems to be whether you have it off in the garage or in your den - both of which would be (unintelligible) incidental to the residential nature of your use. I 'm a little sympathetic with the pushing papers part of his contracting job being like a residential occupation. MS. FARRELL: There is still a problem though , no more than two persons outside the resident household shall be employed in the occupation. There is a lot more employees than that , whether or not how many are in the office at any one time. It is a rather large business, it seems. MS. JOHNSON: I agree. MR. SIEVERDING: Yes the occupation there, I think , is construction, it is not generating paper , you know, that is sent down in order to do the construction (unintelligible) the essential activity that they are involved in is con- struction. For that reason I don' t see that they are meeting the first test of home occupation - which is that the activity shall be carried out wholly within the struc- ture. And I agree that the number of employees that the business maintains exceeds what is required in. . . . PAGE 46 BZA MINUTES - 10/6/86 MR. SCHWAB: Does it say that , that the activity be wholly within the structure? MR. SIEVERDING: Be wholly within the principal building or within a building or other structure accessible thereto . MR. SCHWAB: Well it seems to me it can' t be that literally taken - (unintelligible) The real difference seems to me is that these others always wear a tie. CHAIRMAN TOMLAN: Well I 'm not sure that 's the case Stewart . You have to consider the business as a whole. I don' t think you can take one section of the business - if we were to take one section of the business, okay? Let 's use another example - say it 's not construction - let 's talk about fishing , okay? If the business end of the fishing business is in the home, is it then okay to have home occupations throughout a community which , in effect , is predominately fishing? You really have to consider the entire business, not just the auditing or just the. . . MR. SCHWAB: If you are talking rhetorical , I would be inclined to say yes. . . CHAIRMAN TOMLAN: No , it just doesn' t work . Otherwise everything can become a home occupation. MR. SCHWAB: If what is being done (unintelligible) pushing paper . CHAIRMAN TOMLAN: Yes. You really have to consider the occupation as a whole - the entire walk of life. What is the activity of the individuals in that walk of life. Contractors, architects . . . PAGE 47 BZA MINUTES - 10/6/86 MR. SCHWAB: I hear what you are saying , I guess I don' t see. . . MS. FARRELL: It doesn' t matter as long as that is not going on at the property. . . CHAIRMAN TOMLAN: Helen, we haven' t heard from you . MS. JOHNSON: I am a little stymied on this - I agree that it doesn' t fit home occupation (unintelligible) MR. SCHWAB: Well I 'm certainly not willing to vote for that occupation right now because I 'm not yet convinced it is one lot , which I think is critical . On the other hand , I 'm - well that is enough for me to say because right now I don' t think it 's - if we can move beyond it though , I guess I 'm not convinced that this is different enough from an archi- tect - it seems to me this can come back one month from now - if that is the resolution, this has not yet been shown to be one lot , if it could go beyond , in other words if (unin- telligible) this other one seems to be the use - if we could get that out and just be done with this case. MR. WEAVER: Well if, as you say, whether this is an acces- sory building or not is critical to your decision, we have the authority to refer this to Counsel for legal advice and I so move. MS. FARRELL: I second the motion. CHAIRMAN TOMLAN: Further discussion? MR. SIEVERDING: Refer this to Counsel for interpretation of what that letter exactly means? PAGE 48 BZA MINUTES - 10/6/86 MR. WEAVER: Yes. That is spelled with an "s" not a "c" , my Counsel . CHAIRMAN TQMLAN: Just to make sure we know which Counsel we are talking about . MR. SCHWAB: Not the Common. CHAIRMAN TQMLAN: Not the Common Council . MR. SIEVERDING: And basically hold this appeal over for another month until we meet and we come back with some kind of an opinion on what that . . . . MR. WEAVER: Whenever we get the advice. CHAIRMAN TQMLAN: As to whether this is a home occupation? MS. FARRELL: No - whether it is one parcel or not . CHAIRMAN TQMLAN: As to whether it is one parcel . MR. WEAVER: And whether this, in fact , is an accessory building . MR. SCHWAB: Well , should we see if we have four votes regardless of that? MR. WEAVER: There is a motion on the floor - it can be voted down or up or either way. . . MS. FARRELL: (unintelligible) MR. SIEVERDING: I still have problems with considering the construction business a home occupation and I just have a hard time (unintelligible) I just don' t believe that con- tractors are in the business to push papers. MR. WEAVER: Well I think that ' s a Board problem. I don' t think we can dish that off on the attorney. But it does seem to me - we have one member at least , who says that it is PAGE 49 BZA MINUTES - 10/6/86 critical to his decision to know that that is one parcel and that this is, therefore, an accessory building . If it is not , well - well , if it is not there are two of us that would have great difficulty agreeing , no matter what they are going to do . Whether they are going to sell stamp collections or what . If we can find out what this property is, I certainly don' t know now. MS. JOHNSON: I guess it means waiting to see, because if we ruled on it now - it is two properties so do you want to give him another month to try and pull it together? MR. WEAVER: I don' t know whether it is clearly anything . MS. JOHNSON: It is clearly two separate parcels. MR. SIEVERDING: Charlie, do I understand you to say that you sort of share Stewart 's questions about whether a contracting business could be considered a home occupation in the same regard as an architect or . . . MR. WEAVER: Yes I 'm not saying that it would be decisive in my case but I certainly would have information it seems that essentially considering it . . CHAIRMAN TOMLAN: It seems to me that at least from my own perspective, I would rather have this one, by virtue of the fact that it 's considering - I would rather not go the voice vote, if that 's okay with you Tracy? I would rather have it on the record . MS. FARRELL: Okay so we are voting then that we will send this to find out whether it is one parcel or two , depending on that . . . PAGE 50 BZA MINUTES - 10/6/86 CHAIRMAN TOMLAN: We will consider it next month . MR. SCHWAB: Of course the other thing is, this delays any enforcement action one month . If there are four votes saying regardless of that , I 'm going to deny the home occupation, I 'd be inclined to get it over with so Tom can start enforcing this. . MR. WEAVER: Mr . Chairman I withdraw the motion. MS. FARRELL: Then I withdraw the second . CHAIRMAN TOMLAN: Well we are right back where we started from. SECRETARY HOARD: What I would like to say is that if you are inclined to approve this appeal , I would ask that you be sure to really outline what you are approving . The reason I say that is that his description of his contracting firm is somewhat different from other contracting firms that this Board has had to deal with . Also the question of - we had a case a number of years ago where a tow truck operator was in a residential zone and he said the only thing that goes on at the premises is that they answer the telephone and that they have a two-way radio to the trucks but the trucks were parked on the street in a residential neighborhood and that was what the neighbors were objecting to , so I think that if you approve of contracting offices as a home occupation, I want you to be sure that it is clear that it does not include contractor 's vehicles being parked in the neighbor- hood , so that if someone else comes in for one for a con- tracting firm, we will know where to draw the line. PAGE 51 BZA MINUTES - 10/6/86 MR. SIEVERDING: Well my motion doesn' t actually go along those lines. CHAIRMAN TOMLAN: Well let 's see where it goes. PAGE 52 BZA MINUTES - 10/6/86 DECISION ON APPEAL NO. 1716 FOR 210 CLEVELAND AVENUE The Board of Zoning Appeals considered the request of Richard Darfler for a Special Permit for a Home Occupation under Section 30.26, and as defined under Section 30.39 Paragraph 48, of the Zoning Ordinance, to permit the use of the property at 210 Cleveland Avenue for a contractor's office. The decision of the Board was as follows: MR. SIEVERDING: I move that the Board deny the request for a Special Permit for a Home Occupation in Appeal No. 1716. MS. JOHNSON: I second the motion. FINDINGS OF FACT: 1 . The primary activity does not occur on the same site as the applicant's home - and until we see some evidence that those lots have been joined - that test for a Special Permit for a Home Occupation has not been met. 2. The total number of people employed by the business in its essential capacity as a construction business exceeds what is called for in the Zoning Ordinance. VOTE: 4 YES; 1 NO; 1 ABSTENTION SPECIAL PERMIT DENIED PAGE 53 92A MINUTES - 10/6/86 SECRETARY HOARD: The next appeal is APPEAL NO. 1717 FOR 206 EAST TOMPKINS STREET: Appeal of Carl A. Kahkonen for a use variance under Section 30.25, Column 2, and an area vari- ance for deficient lot size, and deficient set- backs for both side yards and the rear yard under Section 30.25, Columns 6, 129 13 and 14 of the Zoning Ordinance, to permit a 16' x 20' addition to the building at 206 East Tompkins Street (Arts Transmission Service) for the automotive repair business. The property is located in an R2b (Residential , one- and two-family dwellings) Use District in which automobile repair facilities are not permitted; therefore under Sections 30.49 and 30.57 the appellant must obtain a use variance for expansion of the business and an area variance for the listed area deficiencies before a building permit or Certificate of Occupancy can be issued for the proposed expansion. CHAIRMAN TOMLAN: Good evening . If you could begin by identifying yourself. MR. KAHKONEN: My name is Carl Kahkonen, I 'm the owner of Art 's Transmission Service and the property at 206 E. Tompkins Street . Basically what I would like to do - the property at 206 E . Tompkins is a cinder block structure about 40 x 24 and it was built during the 40's and it 's been a garage ever since it was constructed . What I 'd like to PAGE 54 BZA MINUTES - 10/6/86 do is add a 16 x 20 single-story office on the front of the building for bathroom facilities, office area , place for customers to come in so they wouldn' t have to come into the work area and a little bit of storage for some small parts and so on that are presently scattered throughout the shop . CHAIRMAN TOMLAN: Questions from members of the Board" MR. SCHWAB: What do you (unintelligible) office, bathroom and storage? MR. KAHKONEN: Yes, was there a sketch of the floor plan there? MR. SCHWAB: You currently have a, for instance, bathroom in the place? MR. KAHKONEN: The bathroom facility that we use is in the building across the street at 201-203 which was - this property that I own was an annex to the property across the street and that was a large shop that was also a garage and it is presently owned by B.T. Glass Company and there is an outside bathroom facility there so whoever the occupant of this property - used the bathroom facility across the street . The properties were always owned by the same individual until my dad retired about eight years ago . MS. JOHNSON: How many employees do you have? MR. KAHKONEN: Mone. MS. JOHNSON: Are you going to have someone as a receptioni- st . . . MR. KAHKONEN: That ' s me. I have a son who works parttime with me. PAGE 55 BZA MINUTES - 10/6/86 MR. SIEVERDING: You won' t be hiring anybody to answer telephones and . . . MR. KAHKONEN: No we have always had - no , it ' s always been a family run business. MS. JOHNSON: So it is mainly you there? MR. KAHKONEN: Yes, that ' s right . MR. SCHWAB: The building is totally unuseable as a resi- dence? MR. KAHKONEN: It is a cinder block structure - it 's one room as it is, so to speak . The building is about twelve feet high inside and uninsulated , other than cinder blocks. The ceiling (unintelligible) insulated (unintelligible) not very well . Central space heater . MS. JOHNSON: Have you had any response from your notifica- tion from your neighbors? MR. KAHKONEN: All the neighbors I talked to have been - I have had no objections - everyone seemed to be for it . I got a couple of sheets here that - some neighbors have been good enough to sign, that they have been in favor of it . I 'm not aware of any objections at this point . MR. SCHWAB: It is my understanding that when the use is not zoned for it - you've got to show the hardship . Now, of course this is not a question of tearing down the whole building but what is the hardship if we deny this extension? MR. KAHKONEN: Well the property across the street and this , property that I own are not owned by a single individual anymore so I don' t know what that individual across the PAGE 56 BZA MINUTES - 10/6/86 street - who is here tonight - what his plans may be, so I don' t know whether I 'm going to have the access to the bathroom facilities - the other thing is that where the entranceway is, right now, when a customer walks into the shop , they are immediately in the work area, which is - like under cars - I have an overhead lift . . . MR. SCHWAB: Is that lawful? Not that I am an OSHA inspec- tor . . . I see signs "stay out of here" . . . MR. KAHKONEN: That ' s - I think that is for liability reasons - insurance liability reasons . MR. SCHWAB: Okay . Have you discussed this with your insurance agent? MR. KAHKONEN: Well I haven' t discussed it to say "how much would my premium be reduced if I had a separate entranceway but obviously it should be a little better . . . . MR. WEAVER: You could say they will cancel you if you don' t . MR. KAHKONEN: Well I hope not . MR. SCHWAB: So you are saying the hardship is the bathroom is across the street . . . . MR. KAHKONEN: Yes and then the customers have to come into the bay . . and then the other thing is just to organize the parts storage a little better and that would be what the little addition . . . this area would probably be just counter and shelves. MR. SCHWAB: Okay . PAGE 57 BZA MINUTES - 10/6/86 MR. SIEVERDING: Is there a problem with adding those bathroom facilities within the existing structure? I mean, what would the impact of that be? MR. KAHKONEN: It would really - well the structure is 24 by 40 and it would really cramp me . I am kind of tripping over things now as it is, with the parts storage primarily . MR. WEAVER: From personal observation, there is room for two cars in there and room to work on one and a half of them. MR. SIEVERDING: So the impact of that would be, you would end up losing one of those bays and you could only service one car at a time? MR. KAHKONEN: It would be a problem. MR. WEAVER: It is a pretty tiny space. CHAIRMAN TOMLAN: Would you be so good as to give us a copy of that information when you are finished with it? That petition. MR. SCHWAB: You said "split up an ownership" - was eight 1 years ago - did I hear you say that? MR. KAHKONEN: I 'm not sure it was exactly eight years ago . MR. SCHWAB: Several years ago? MR. KAHKONEN: Yes. '76 . MR. SCHWAB: Have you been thinking of doing this for some time or has it suddenly become an excessive problem or . . . MR. KAHKONEN: No I have been thinking about it since I bought the property and Mr . Pizilly has 201-203 across the street . It is getting time. PAGE 58 BZA MINUTES - 10/6/86 CHAIRMAN TOMLAN: Further questions from members of the Board? Thank you . Is there anyone else who would like to speak in favor of this appeal ? Come forward please . MR. PIZILLY: My name is Franz Pizilly, I am the owner of B.T. Glass which is directly across from Mr . Kahkonen. Four or five years ago Council allowed me to upgrade my property . It was amazing in the neighborhood what happened after I upgraded mine - they just - at least facially they started doing the same thing . If you drive by you will notice that the neighborhood is not too shabby. So I feel that what happens across the street - will do nothing but enhance the neighborhood . And what can you do when two shops are stuck in the middle of Tompkins Street - but you know, try to keep them as clean and as neat as possible, and it is difficult in this business. So he just has my total support as far as what he can do . Also , because he is using the facilities across the street - the outside bathroom - which isn' t a t problem for me - except for I can use it for storage because I am cramped too - and I don' t look for expansion. He has been a good neighbor - he keeps it clean - it is a nice neighborhood and we try to do the best we can as far as - what can you do with two businesses stuck down there but try to keep it as clean as possible? And that is what he is trying to do . CHAIRMAN TOMLAN: Questions from members of the Board? (none) Thank you. Is there anyone else who would like to speak in favor of this appeal ? Cno one] Is there anyone PAGE 59 BZA MINUTES - 10/6/86 who would like to speak in opposition? [no one] That being the case, it is ours. PAGE 60 BZA MINUTES - 10/6/86 DECISION ON APPEAL NUMBER 1717 FOR 206 E. TOMPKINS STREET The Board of Zoning Appeals considered the request of Carl A. Kahkonen for use and area variances to permit a 16' x 20' addition to the building at 206 East Tompkins Street (Art 's Transmission Service) for the automotive repair business. The decision of the Board was as follows: MS. FARRELL: I move that the Board grant the use variance requested in Appeal Number 1717. MR. WEAVER: I second the motion. PROPOSED FINDINGS OF FACT: 1 . Without an addition, the owner would suffer financial hardship because he would have to create a bathroom and waiting area for his shop out of his present small work area. 2. The building is unique because it is not useable as a residential structure in a residential neighborhood. 3. Many neighbors signed a petition supporting the pro- posed addition to the building. VOTE: 6 YES; 0 NO USE VARIANCE GRANTED 1717a MR. SIEVERDING: I move that the Board grant the area variance requested in Appeal No. 1717. MR. WEAVER: I second the motion. PROPOSED FINDINGS OF FACT: 1 . Practical difficulty was shown which involves moving the existing structure on the site in order to comply with the area requirements. PAGE 61 BZA MINUTES 10/6/86 SECRETARY HOARD: The next case is APPEAL NO. 1718 FOR 203 UTICA STREET: Appeal of Robert M. Esformes for a Special Permit for a Home Occupation under Section 30.26, and as defined under Section 30.03, Paragraph 48 of the Zoning Ordinance, to permit a Home Occupation consisting of a small lamp repair shop and a small engraving shop in the single-family home at 203 Utica Street. The property is located in an R2b (Residential , one- and two-family dwellings) Use District in which a home occupation is permitted only under a Special Permit from the Board of Zoning Appeals. CHAIRMAN TOMLAN: Mr . Esformes. . . you can begin by identifying yourself . MR. ESFORMES: My name is Robert Esformes and I live at 203 Utica Street . The proposition I put before the Board is to grant a special permit - I want to operate these two businesses at my house. The engraving shop was previously (unintelligible ) engravers, owned by a friend of mine (unintelligible) which I purchased in August . The lamp repair shop was originally a piece of Ralph Perry ' s business of Trash and Treasures operation at the end of Clinton Street , I think it was and I bought that from him. Also - just the inventory was all that really amounted to . The engraving shop is a pantograph machine not electrical , it is all mechanical - the machine itself stands about five feet PAGE 63 BZA MINUTES 10/6/86 off the ground and it is about three feet by three feet . The office which I am occupying was originally the architectural offices of Robert Boehlecke, it is actually two office suites with a separate entrance. The front office is presently my library - I suspect (unintelligible) just expand into that for some storage at some point . The smaller office in the back is where the equipment and the work bench actually are. As far as I understand it , as I wrote before the Board , I don' t anticipate that it should really change the character of the neighborhood . I do have off-street parking - people do come to deliver - everything is by appointment - they deliver work to be done and I schedule an appointment for them to pick it up . I don' t know what else needs to be stated . I have no signs (unintelligible) the property . CHAIRMAN TOMLAN: Questions from members of the Board? MR. SCHWAB: Do you expect this to be a full time job? MR. ESFROMES: I 've been working as a carpenter for the last couple of years and I 'm trying to move back in to the home again and work indoors rather that out . If this business - this lamp business does prove to be a larger volume than I forsee, then I would move to get a loft space on the Commons or something like that but I don' t immediately forsee that kind of volume. MR. SIEVERDING: You would be the only person working there? There are no other people involved in the business? MR. ESFORMES: Right . PAGE 64 BZA MINUTES 10/6/86 MR. SIEVERDING: Are you buying this house from Bob Boehlecke or do you have. . . MR. ESROMES: No , I 'm presently just renting it . MS. JOHNSON: You are living there as well? MR. ESFROMES: Correct . MR. SIEVERDING: Question of Tom, does that present a problem as far as. . . SECRETARY HOARD: Ownership? MR. SIEVERDING: Yes. SECRETARY HOARD: No . It .just has to be carried on by someone living in the house . MR. SIEVERDING: Did Bob Boehlecke have a permit for a home occupation? SECRETARY HOARD: He was - he had it before a Special Permit was required - as an architect . MR. SIEVERDING: He was grandfathered . MS. JOHNSON: Have you had any reactions or response from the neighbors? MR. ESFRDMES: Not personally. Actually it happens that half a dozen personal friends of mine who live in that neighborhood - which I didn' t know - actually - before I moved in. I haven' t had any adverse reaction - I did get to learn the names of all my neighbors by going to the Assessor 's office - I didn' t know before. SECRETARY HOARD: It 's a service we provide here. MR. SCHWAB: Since this isn' t strictly paper pushing , one thing that you have to show is that there is no offensive PAGE 65 BZA MINUTES 10/6/86 odor , noise, vibrations, smoke, dust - will there be any of that? MR. ESFROMES: Not to my knowledge, no . It is all pretty much a mechanical operation. There is virtually no sound involved (unintelligible) contemplative work . CHAIRMAN TOMLAN: Further questions from members of the Board? [none] Thank you. Is there anyone else who would like to speak in support of this appeal? [no one] Is there anyone who would like to speak in opposition? [no one] That being the case, I ' ll entertain a motion. PAGE 66 BZA MINUTES 10/6/86 DECISION ON APPEAL NO. 1718 FOR 203 UTICA STREET The Hoard considered the request of Robert M. Esformes for a Special Permit for a Home Occupation to permit a Home Occupation consisting of a small lamp repair shop and a small engraving shop in the single-family home at 203 Utica Street. The decision of the Hoard was as follows: MR. WEAVER: I move that the Board grant the request for a Special Permit for a Home Occupation. MS. FARRELL: I second the motion. PROPOSED FINDING OF FACT: 1 . The proposal meets all of the tests under Paragraph 48, Section 30.3, namely a, b, c, d, and a of the Zoning Ordinance. VOTE: 6 YES; 0 NO SPECIAL PERMIT GRANTED PAGE 67 BZA MINUTES - 10/6/86 SECRETARY HOARD: The next appeal is APPEAL NO. 1719 FOR 116 EAST YORK STREET: Appeal of H. Patricia Lord for an area variance for deficient setbacks for the front yard and one side yard under Section 30.259 Columns 11 and 12 of the Zoning Ordinances to permit the } construction of a one-story 9' x 13' addition to the rear of the existing single-family dwelling at 116 East York Street. The property is located in an R2b (Residential , one- and two-family dwellings) Use District in which the proposed use is permitted; however under Sections 30.49 and 30.57 the appellant must obtain an area variance for the listed deficiencies before a building permit or Certificate of Occupancy can be issued for the proposed addition. CHAIRMAN TOMLAN: Someone like to come forward? SECRETARY HOARD: Is there anyone here on this appeal ? [no one showed to present the appeal ] . SECRETARY HOARD: The next appeal is APPEAL NO. 1720 FOR 309 EDDY STREET: Appeal of Christopher George Corporation for an area variance for a deficient side yard under Section 30.25, Column 13 of the Zoning Ordinance to permit the construction of a four-story apartment building containing twelve units behind the existing seven unit apartment building at 309 PAGE 68 BZA MINUTES - 10/6/86 Eddy Street. The property is located in a H2a (business) Use District in which multiple dwellings are permitted•; however under Sections 30.49 and 30.57 the appellant must first obtain an area variance for the deficient side yard before a building permit or Certificate of Occupancy can be issued for the proposed new building. CHAIRMAN TOMLAN: Gentlemen. I think you know the procedure . MR. ANAGNOST: Sure, I 've been here a few times. My name is Chris Anagnost and this is my architect , Jagat Sharma. I am here on behalf of my family to ask the Board to grant an area variance to allow the construction of an apartment house behind an existing building at 309 Eddy Street . The property is presently a seven unit multiple dwelling . The proposed addition is a permitted use and it is compatible with the existing use of the neighborhood . The twelve additional units which we are proposing will provide much needed new Cornell oriented housing . Mr . Sharma will present the drawings and explain the proposal to you . MR. SHARMA: My name is Jagat Sharma, architect with offices at 310 East Seneca Street . I am here to present the proposal on 307 Eddy Street . This is a site plan (unintelligible) that is Eddy Street - that is the present house at 309 Eddy Street - this is the building that we just finished on 303 Eddy Street - this house is 111 Dryden Road - part of the Eddy Street ownership (unintelligible) here at PAGE 69 BZA MINUTES - 10/6/86 301 Eddy Street . What we propose to do is to take - reconstruct the hill in the back and propose a basement plus four story apartment building - total number of dwelling units will be twelve - it has eight studios - two two-bedrooms - two three-bedrooms . It will have some parking available by filling up the slope presently a very steep slope - the right-of-way is from Dryden Road - the entrance to the apartments is from Dryden Road . As part of the project there will also be installed a fire lane - there are no exits from the property at the present time from Eddy Street . We will be constructing an eighteen feet wide fire lane which will provide access for the fire trucks for the wood frame building in the front and to the new building that we propose . This building complies in all aspects of the Zoning Ordinance - we are before the Board because the present building - the old building has a deficiency of side yard requirements - we have a two feet side yard instead of five feet . The new building - the back of the new building will be basically in keeping with what we have done at 303, gray block , masonry construction - that will be the main entrance of the house in front here - near the fire lane which will be coming in at this level - there will be a basement level at this point and four more levels of apartments. In the back. - as you can see - that is the level at the back of the property where we will have the handicapped exits and the two levels of apartments and two levels of apartments below that and the (unintelligible) PAGE 70 92A MINUTES - 10/6/86 basement below. Also as you can see from the site plan, one of the problems that we have is the (unintelligible) of the land - parking lot - with the heavy rains that we have been having the last couple of months - part of the project will be a series of retaining walls at different heights - one next to the fire lane and another one (unintelligible) up and the next one would be another ten feet up to stabilize the property from the right-of-way all the way to Eddy Street . We have all the off-street parking required for this building , that building and that building - that building and this building here and all available within five hundred feet - with the application indicating where the different parking is available. That 's the 303, 309 , (unintelligible ) - 311 , 301 and parking here - here, here, here and here (pointing to plans) . (unintelligible) I think by granting this variance which is really in for a •very minor deficiency - side yard of an old building - that side yard has grandfather rights - we don' t even have to provide parking - (unintelligible) constructing a new building and will provide the parking even for the present building and three things will happen. (unintelligible) which I think will become a big problem - it does slide down in the last few rains and we do want to do this work to stablize the hill . We will provide more housing (unintelligible) housing for college students - eight studios (unintelligible) we have the parking - off-site parking on the premises and we also have provided a fire PAGE 71 BZA MINUTES - 10/6/86 lane for fire prevention of the building and also for the new building . MR. SIEVERDING: I understand - the side yard deficiency is with the existing building? MR. SHARMA: The existing building , yes . MR. SIEVERDING: Which will be renovated or which will remain as is? MR. ANAGNOST: It was renovated back in 1968 - it is a wood frame house. MR. SHARMA: Side yard deficiency on the existing building on the north side - only a fourteen feet wide section of the room that projects out - the rest of the property does have • a side yard . MR. SIEVERDING: And the new building which you are going to build behind that . . . MR. SHARMA: Will comply with all the zoning requirements. MR. SIEVERDING: If nothing is going to be done to the existing structure, why did they have to come in when they are proposing to have a new building . . . CHAIRMAN TOMLAN: Well because it is attached . . . SECRETARY HOARD: Well Section 30.57 requires that prior to getting a building permit that all the zoning requirements have to be met even though it is an existing building . CHAIRMAN TOMLAN: How does one gain access to the parking behind the new building? MR. SHARMA: Go through the right-of-way from Dryden Road . CHAIRMAN TOMLAN: Twelve feet wide? PAGE 72 BZA MINUTES - 10/6/86 MR. SHARMA: Yes . CHAIRMAN TOMLAN: Chris, do you really - can you get through there in your Buick or your Chevie? MR. ANAGNOST: Well not only that , I ' ve gotten my aunt 's Eldorado back there but it 's only there for the existing 111 Dryden Road . CHAIRMAN TOMLAN: I understand but I had a hard time with my Volkswagon - it seems like it is awfully narrow coming in off the. . . SECRETARY HOARD: Well there are drivers and there are drivers. MR. SHARMA: (UNINTELLIGIBLE ) trucks using that driveway . MR. ANAGNOST: It ' s built for 401 Eddy Street - Fontana's are using - dump trucks are going down there. . . CHAIRMAN TOMLAN: Yes, I 've seen them. . MR. ANAGNOST: And the van for the warehouse - Triangle Book Store - turns around back there. . . CHAIRMAN TOMLAN: Do you have a legal instrument , somehow or another - on that right-of-way? MR. ANAGNOST: I 'm sure, definitely . Actually it goes back to about 1830 - it 's called Eddy Lane and it was an old coal right-of-way but I actually have a deeded right-of-way . It ' serves the backs of all those houses there and it is the only access for that little white house down at 359 Eddy . If you went down there - there is a parking lot behind where we have about eleven spaces already there. CHAIRMAN TOMLAN: Yes I was amazed . PAGE 73 BZA MINUTES - 10/6/86 MR. SCHWAB: So you own all five of these parking lots? MR. ANAGNOST: Yes. MR. SIEVERDING: Access to the other parking areas comes off from what , Catherine? MR. ANAGNOST: Eddy Street . MR. SIEVERDING: Eddy Street , oh , I see. Southside. CHAIRMAN TOMLAN: It 's not shown on your elevation - how - what is the respective relationship between the roof height of the proposed building as opposed to the white building behind it which is also yours. Just kind of curious about relative heights . MR. ANAGNOST: The brown house behind it . . . CHAIRMAN TOMLAN: The white one - back . . . MR. SHARMA; The building will be a two-story height at this elevation which is the same height as that building . CHAIRMAN TOMLAN: Okay . I wasn' t - your drawing wasn' t clear on the elvation because you didn' t show the other building - that 's why I 'm questioning it . MR. SHARMA: That will be the elevation from that upper parking lot - the two stories. CHAIRMAN TOMLAN; Okay so that 's what you face whenever you are looking out the front door of the white building? MR. SHARMA: Correct . (unintelligible) CHAIRMAN TOMLAN; Okay . MR. SHARMA: Which will be that elevation on this building . You are lucky I didn' t note there was an architect in the ! crowd . (unintelligible) PAGE 74 BZA MINUTES - 10/6/B6 MR. SCHWAB: They just push paper . CHAIRMAN TOMLAN: That 's right . . . . Further questions from members of the Board? MR. SCHWAB: How does parking really work? Is it - do the people renting there get a parking place or can buy or rent one as well or . . . . MR. ANAGNOST: With any new construction my tenants have parking provided with no extra charge. For any existing buildings or before the Ordinance was passed in '77 my tenants - some of them pay for parking and some don' t . Most of my tenants there, do not pay for parking . MR. SCHWAB: Do not pay for parking . What about the existing buildings - currently has no parking . . . MR. ANAGNOST: Right . MR. SCHWAB: As I understand it , part of the proposal is - the advantage is parking is actually gained for that house? MR. ANAGNOST: Yes. It is required once you add to that lot then I will have to provide for both buildings. I will provide seven spaces for the existing and . . . (unintelligible) MR. SHARMA: (UNINTELLIGIBLE ) for all buildings and there are fifty-one. And there are on-site available sixty-three spaces. MR. SIEVERDING: How many? MR. SHARMA: Sixty-three. MR. SIEVERDING: Sixty-three on site. PAGE 75 BZA MINUTES - 10/6/86 MR. SCHWAB: Meaning within five hundred feet or - in one of those five parking lots. . . MR. ANAGNOST: Actually within like two hundred feet . I mean, they are all adjacent . MR. SCHWAB: Right . So all the tenants now, for the existing building and the new building will get parking? MR. ANAGNOST: Have you been up there at all ? MR. SCHWAB: Yes. Well I drove in from Eddy Street . MR. ANAGNOST: The new building - the one we just built at 303 - we put a lot behind . And they when you go up farther and to the right there is another parking lot there so that there will be parking behind 309 - eight spaces and then the balance of the spaces will be in that additional lot to the right . . . MR. SCHWAB: Is it assigned parking lots or just . . . MR. ANAGNOST: Assigned spaces. MR. SIEVERDING: About the only site in town that can provide on-site parking . MR. ANAGNOST: It 's great . It ' s a lot of work chasing after your tenants and making them go to the right space. MR. SHARMA: They come in late at night and they park in the first space they come to . MR. WEAVER: They do that on a bright sunny day too . CHAIRMAN TOMLAN: Further questions from members of the Board? PAGE 76 _ BZA MINUTES - 10/6/86 MR~ ANAGNOST: It 's a greet use of this space, by the way . I think it is an ingenious use of some very wasted space up there. He did a nice job . MR. SIEVERD%NG: Oh yes (unintelligible) it is one of the few undeveloped, privately held pieces of property in Collegetown. CHAIRMAN l[OMLAN: Thank you gentlemen. Is there anyone else who would like to speak in favor of this application? [no one] Is there anyone who would like to speak in opposition? [no one] That being the case. . . ` PAGE 77 ' BZA MINUTES - 10/6/86 DECISION ON APPEAL NO. 1720 FOR 309 EDDY STREET The Board of Zoning Appeals considered the request of Christopher George Corporation for an area variance to permit the construction of a four-story apartment building containing twelve units behind the existing seven unit apartment building at 309 Eddy Street. The decision of the Board was as follows: MS. FARRELL: I move that the Board grant the area variance requested in Appeal Number 1720. MR. SIEVERDING: I second the motion. PROPOSED FINDINGS OF FACT: 1 . Practi€sl diffi€city in meeting the side yard setback for the existing building which can only be solved by removing a piece of the building. 2. The proposed new building wouldn't exacerbate the current deficiency and the new building would, itself, meet all requirements of the Ordinance. 3. The proposed change would provide adequate parking for both the existing and proposed buildings while the original building is now lacking the seven parking spaces required by the Zoning Ordinance. 4. The proposed change observes the character of the neighborhood. VOTE: 6 YESI 0 NO AREA VARIANCE GRANTED PAGE 78 BZA MINUTES - 10/6/06 SECRETARY HOARD: The next appeal is APPEAL NO. 1721 FOR 207 WEST CLINTON STREET: Appeal of Herbert W. Marshall , Jr. for an area variance for deficient lot size and setback for one side yard under Section 30.25, Columns 6 and 12 of the Zoning Ordinance, to permit conversion of the single family house at 207 West Clinton Street to two dwelling units. The property is located in an Ria (Residential , multiple dwelling) Use District in which the proposed use is permit- ted; however under Section 30.57 the appellant must obtain an area variance for the listed deficiencies before a building permit or Certifi- cate of Occupancy can be issued for the proposed conversion. CHAIRMAN TOMLAN: Mr . Marshall . . . MR. MARSHALL: I 'm Bill Marshall . Do you want me to read the same thing as what Mr . Hoard read? I have come before the Board to request a variance to change the property at 207 West Clinton Street to a two-family dwelling . MS. JOHNSON: Are you planning to buy this house? MR. MARSHALL: Yes. MS. JOHNSON: And the sale is contingent on the variance being granted? MR. MARSHALL: Yes . MR. SIEVERDING: Will you be occupying one of the units or ' will the property be rented out? PAGE 79 BZA MINUTES - 10/6/86 MR. MARSHALL: We will not be occupying it - our plans are to rent it out . MS. JOHNSON: Are you making any external changes? MR. MARSHALL: No . CHAIRMAN TOMLAN: Further questions from members of the Board? MR. SCHWAB: It 's always been single family? MR. MARSHALL: Yes as far as I know. MR. SCHWAB: One kitchen and that sort of thing - you will be adding a second kitchen and a second bathroom? MR. MARSHALL: Yes. CHAIRMAN TOMLAN: Further questions? Cnone] All 's quiet on the western front , thank you. Is there anyone else who would like to speak in favor of granting this appeal? [no one] Is there anyone who would like to speak in opposition? Cno one] All right , a motion perhaps? PAGE 80 BZA MINUTES - 10/6/86 DECISION ON APPEAL NO. 1721 FOR 207 WEST CLINTON STREET The Hoard of Zoning Appeals considered the request of Herbert W. Marshall , Jr. for an area variance to permit conversion of the single family house at 207 West Clinton Street to two dwelling units. The decision of the Hoard was as follows: MR. WEAVER: I move that the Board grant the area variance requested in Appeal No. 1721 . MR. SIEVERDING: I second the motion. PROPOSED FINDINGS OF FACT: 1 . Practical difficulty in conforming with the ordinance in that the existing lot is below the required size and there is no practical means of correcting that. 2. The side yard deficiency is in the same category and cannot be corrected without demolition of the building. 3. The change is compatible with the general character of the neighborhood. VOTE: 6 YES; 0 NO AREA VARIANCE GRANTED PAGE 81 BZA MINUTES - 10-6-86 SECRETARY HOARD: The last appeal is APPEAL NO. 10-1-86 FOR 328 ELMIRA ROAD: Appeal of Arby's Roast Beef for a variance for the sign setback requirements under Section 34.8, Paragraph B of the Sign Ordinance to permit the installation of a free-standing sign within the required front yard setback at 32B Elmira Road (formerly the Mandala Fine Indian Cuisine Restau- rant) . The Sign Ordinance requires a ten-foot from the front property line setback; the appel- lant is requesting permission to install the sign five feet from the property line. MR. FOUST: Good evening . My name is David Foust , I repre- sent the Franchise„ Al and Art Lavker , who are both here so if you have any questions they are here to answer . Basical- ly what we want to do is relocate the existing sign which happens to be way too far away from our building to be useable. In trying to relocate the existing pole we find out that - with the alterations we have put on the building - would actually block our own sign. So what we are asking for very simply is the opportunity to put our sign in a position where it is visible . I think if you look at the site and if you have been around the area, putting the sign there we are still approximately twenty feet away from the road so it is not going to cause any traffic problems or anything like that . I have taken the liberty of bringing a picture of what the signs look like. This sign is PAGE 82 BZA MINUTES - 10-6-86 considerably larger than what we are proposing but it will give you a general idea of what actually the sign is going to look like and I 've also brought along a copy of the actual size of the sign that we are proposing to put up . CHAIRMAN TOMLAN: And the new sign would fall within the square footage allowed? MR. FOUST: Yes we will be able to meet all the requirements and , in fact , with the existing location, if we can get that we will be able to eliminate a building sign so we will actually be underneath the total requirement on signage for the building . MS. JOHNSON: May we ask questions? CHAIRMAN TOMLAN: Sure by all means . MS. JOHNSON: I notice this shaded area - proposed construc- tion . . . you are proposing that or . . MR. FOUST: Oh, no . That was off the original site plan when we got the building permit . That ' s actually there. What we are doing now is atrium construction. MS. JOHNSON: What you are doing now is what? MR. FOUST: We are putting on a solarium on the front of it , that 's what 's going on now. MS. JOHNSON: Oh- but it is not extending it out any . . . MR. FOUST: Well we are actually - we've already went through that (unintelligible) about four feet but we are within all that - that doesn' t require a variance or any- thing . You see there is a. . . PAGE 83 BZA MINUTES - 10-6-86 MR. SIEVERDING: is that solarium represented by the hash marks on this site plan? MR. FOUST: By the shaded area . MR. SIEVERDING: By the shaded area only or does it come up further? MR. FOUST: No , that is exactly where it is at now. Where it says "proposed" is actually where it is, right - what we are presently doing . MR. SIEVERDING: And what is it about the existing sign location? MR. FOUST: There are two problems , one - as you can see where it is at - it is actually closer to Wendy's to be perfectly (unintelligible) to our building - so in trying to relocate it closer to our building , because of the setback requirements, actually what we will do is end up blocking our own sign. If we put it on the left we won' t be able to see it from the right and if we put it right we won' t be able to see if from the left . MS. JOHNSON: How far is it out from the building? MR. FOUST: The sign? It is approximately five feet as well . If you drove by - what we are proposing that sign a site down the road - you would find out that our sign is still farther back: than everybody else's going down the block - Wendy's, Burger King and the group -- I don' t know how that all works through there but we still end up being the one farthest back . PAGE 84 BZA MINUTES - 10-6-86 MS. JOHNSON: So the lot line is really five feet in front of the proposed sign and not out here past the. . . MR. FOUST: That is correct , that 's easement . Where it says ten foot , six - that is where our lot line is at this point - all of this is still easement . MS. JOHNSON: Why do you have signs way out here when . . . in and Out signs. . . is that . . . MR. FOUST: Yes they are not . . . SECRETARY HOARD: Those are directional signs. One of the things that has happened out here on the Elmira Road is when they realigned the highway some years ago it left a lot of funny looking setbacks - if you look at all the properties some were way back and some were up front and in some cases the City has actually granted licenses to property owners to put their signs on City property . CHAIRMAN TOMLAN: Further questions from members of the Board? MR. SIEVERDING: What is the distance of the existing sign to the building? MR. FOUST: Actual distance? I didn' t measure it but it is all the way across the parking lot so probably seventy feet . Okay? That would be only an estimate, I really didn' t physically measure it . It is on the other side of the parking lot . CHAIRMAN TOMLAN: Well you can measure it from the - take the (unintelligible) MR. SIEVERDING: Twenty for each parking spot . . . PAGE 95 BZA MINUTES - 10-6-86 CHAIRMAN TOMLAN: Twelve and a half, seventeen and a half plus sixty-four . . . Okay Herman? Further questions? Thank you . Is there anyone else who would like to speak in favor of this appeal ? MR. LAVKER: My name is Albert Lavker , I 'm from Johnson City, New York . With my brother , we will own and operate this restaurant on Elmira Road and obviously I am in favor of you approving this appeal for us . The building was built back in 1977 and has always been a restaurant . It is in a row - seems to be fast food restaurants up there - everyone of them does have an existing sign in front of their build- ing - I also wanted to bring to your attention that the sign that we are proposing is not in the way of any of the driving up there - it is not in line or sight of drivers whether they are going one way or the other - either way on Route 13 - it does not block out the road . As the contrac- tor brought to your attention, it is sufficiently far enough from the road not to cause any problem with traffic . My brother , Art and myself are here to answer any questions you might have regarding this appeal . CHAIRMAN TOMLAN: Members of the Board any questions? Thank you. Is there anyone else who would like to speak in favor? Is there anyone else who would like to speak in opposition? [no one] That being the case, shall we move on to a motion? PAGE 86 BZA MINUTES - 10-6-86 DECISION ON APPEAL NO. 10-1-86 FOR 328 ELMIRA ROAD The Board of Zoning Appeals considered the request of Alfred and Arthur Lavker for a variance for the sign setback requirements under Section 34.89 Paragraph B of the Sign Ordinance to permit the installation of a free-standing sign within the required front yard setback at 328 Elmira Road. The decision of the Board was as follows: MR. WEAVER: I move that the Board grant the request for a sign variance in Appeal Number 10-1-86. MS. FARRELL: I second the motion. PROPOSED FINDINGS OF FACT: 1 . The proposed use in this neighborhood will not be detrimental to the general amenity or character of the neighborhood. 2. The setback is deficient by 5' which, in that neighbor- hood, is pretty conservative: in fact it doesn't interfere with the line of sight of any other sign or any other building or any other driveway. 3. The proposed sign in all other respects conforms with the requirements of the Sign Ordinance. VOTE: 6 YES; O NO SIGN VARIANCE REQUEST GRANTED PAGE 87 I , BARBARA RUANE, DO CERTIFY THAT I took the minutes of the Board of Zoning Appeals, City of Ithaca, New York, in the matters of Appeals numbered 1712, 1715, 1716, 1717, 1718, 1720, 1721 and 10-1-86 in the Common Council Chambers, City of Ithaca, 108 E. Green Street, New York, that I have transcribed same, and the foregoing is a true copy of the transcript of the minutes of the meeting and the action taken of the Board of Zoning Appeals, City of Ithaca, New York on the above date, and the whole thereof to the best of my ability. Barbara Ruane Recording Secretary Sworn to before me this t4 day of 1986 6"-Notary Public JEAN J. HANKINSCIN NOTARY PUBLIC, STATE OF NEW YORK No' 55-1560800 QUALIFIED IN TOMPKINS COUN MY COMMISSION EXMRES MARCH 30,19,44