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HomeMy WebLinkAboutMN-BZA-1987-11-09 BOARD OF ZONING APPEALS CITY OF ITHACA NEW YORK COMMON COUNCIL CHAMBERS NOVEMBER 9, 1987 TABLE OF CONTENTS PAGE APPEAL NO. 1785 Robert Martin 3 119 Third Street APPEAL NO. 1785 Decision 23 APPEAL NO. 1792 Ron and Carol Schmitt 24 211 Auburn Street APPEAL NO. 1792 Decision 28 APPEAL NO. 1793 Evelyn Holdheim 29 123 Highland Place APPEAL NO. 1793 Decision 34 APPEAL NO. 1794 Kalit Chu 35 207 Prospect Street APPEAL NO. 1794 Decision 40 APPEAL NO. 1795 Fareed M. Abdulky 41 527 West Seneca Street APPEAL NO. 1795 Decision 44 APPEAL NO. 1796 Edmund & Joyce Hurd 45 117 Treva Avenue APPEAL NO. 1796 Decision 47 APPEAL NO. 1797 Louis J. Cacciotti 48 401 Richard Place APPEAL NO. 1797 Decision 52 APPEAL NO. 1798 Joseph Daley 53 218 South Albany Street APPEAL NO. 1798 Decision 59 TABLE OF CONTENTS NOVEMBER 9, 1987 BZA PAGE 2 APPEAL NO. 1799 John A. Ward 60 522 West Seneca Street APPEAL NO. 1799 Decision 62 APPEAL NO. 1800 John A. Ward 63 526 West Seneca Street APPEAL NO. 1800 Decision 66 APPEAL NO. 1801 Charles J. Everhart 67 613 East State Street APPEAL NO. 1801 Discussion 78 APPEAL NO. 1801 Decision 82 APPEAL NO. 1802 Nan T. True 83 124 Seneca Way APPEAL NO. 1802 Decision 87 APPEAL NO. 11-1-87 Wegman' s Enterprises 88 600 South Meadow Street APPEAL NO. 11-1-87 Decision 103 CERTIFICATION OF RECORDING SECRETARY 104 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 1785 , 1792 , 1793 , 1794, 1795 , 1796 , 1797, 1798 , 1799 , 1800, 1801 , 1802 and 11-1-87 on Novem- ber 9 , 1987, in the Common Council Chambers, City of Ithaca, 108 East Green Street, Ithaca, 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 C. Ruane Recording Secretary Sworn to before me this day of December, 1987 Notary Public -STA^Y JV YORK BOARD OF ZONING APPEALS COMMON COUNCIL CHAMBERS CITY OF ITHACA NEW YORK NOVEMBER 9, 1987 CHAIRMAN TOMLAN: Good evening. I 'd like to call to order the November 9, 1987 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 Ordi- nance and the Board's own Rules and Regulations. Members of the Board who are present here tonight are: STEWART SCHWAB CHARLES WEAVER JOHN OAKLEY HERMAN SIEVERDING HELEN JOHNSON MICHAEL TOMLAN, CHAIRMAN OF THE BOARD THOMAS D. HOARD, SECRETARY TO THE BOARD, ZONING OFFICER AND BUILDING COMMISSIONER BARBARA RUANE, RECORDING SECRETARY The Board will hear each case in the order listed in the Agendum, first we are going to hear from the appellant and ask that he or she present the case as succinctly as possible and then be avail- able to answer questions from the Board. We will 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 here that the Board considers "interested parties" to be persons who own property within two hundred feet of the property in PAGE 1 BZA MINUTES 11/9/87 question or who live or work within two hundred feet of that property. Thus the Board will not hear testimony 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 there are 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, opposite us here, to speak directly into the micro- phone so that the comments can be picked up by the tape recorder and, as a result, we've got our official record. Extraneous comments from the audience cannot be recorded and therefore will not be considered by the Board in its deliberations on the cases. We ask that everyone limit their comments to the zoning issues of the case and not comment on the 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 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 PAGE 2 BZA MINUTES 11/9/87 from members of the audience about our procedure? (none] Then can we proceed? SECRETARY HOARD: The first case Mr. Chairman is Appeal Number 1785 for 119 Third Street: Appeal of Robert Martin for an interpretation of Section 30.49 of the Zoning Ordinance (limits on extension or enlargement of non-conforming uses or structures) and Section 30. 57 (Requirements for building permits and Certificate of Occupancy) , or in lieu of a favorable interpretation a use variance under Section 30.25, Column 2 and an area variance for deficient rear yard setback under Section 30.25, Column 14, to permit the retroactive approval of the conversion of an apartment (Apartment 2) to locker room and shower space for the gymnasium at 119 Third Street (Ithaca Fitness Center) . The property is located in an R-3b (residential, multiple dwelling) Use District in which a gymansium is not a permitted use; therefore it is the Building Commissioner's interpretation that enlargement of the gymnasium facilities requires a use variance as well as an area variance for the deficient rear yard before a building permit or Certificate of Occupancy can be issued for the conversion. This appeal was sched- uled for the October 5, 1987 meeting of the Board, but was rescheduled at the request of the appellant PAGE 3 BZA MINUTES 11/9/87 because a full board was not present at that meet- ing. MR. STUMBAR: I think Bob is going to speak to the issue first. CHAIRMAN TOMLAN: You've got to come up here and have a seat so we can pick you up on the tape. Begin by identifying yourself. . . MR. MARTIN: Okay. My name is Robert Martin and I 'm the owner and director of The Ithaca Fitness Center at 119 Third Street. I have put in front of you exactly my presentation so you can read along with me - then if you have any questions, please feel free to ask. The Ithaca Fitness Center is a local small business with no outside investors. It employs four full time and twenty-four parttime people. It has been in business at the same location for approximately twenty years. We started on a shoestring, took over an abandoned building and slowly built our business. We expanded with City permission and now would like to make a minor change. We have been successful in attracting older members with our "fitness is ageless" program, and also many business and professional people. These people have asked us to provide more locker room space. Our current locker room measures nine feet four inches by ten feet, serving approximately five hundred members. These are men - the locker room is for men. To satisfy this need we decided to take over one of our upstairs apartments, that was not rented, and change it to a locker room. We bought one hundred sixteen lockers, had NYSEG turn off the gas, and we sold the kitchen. We went for a building permit and found out at that time we had to go in front of the zoning board. We immediately stopped all work on the locker room. The Building Department inspected and told us to PAGE 4 BZA MINUTES 11/9/87 make some corrections, which we have done, and passed all inspections. Ithaca Fitness Center now has one thousand two hundred and fifty-four customers - that is a total of both men and women. Our peak was one thousand nine hundred and ninety-two customers in 1984. We will not go above two thousand customers. That is our limit - never will we go above that. We have plenty of parking, having leased the Hancock Plaza parking lot since 1984 with over one hundred parking spaces - plus our parking lots and street parking. Our building is so spread out that it would be impossible to change the building downstairs to add a locker room for men. We already had to take over a downstairs unrentable apartment for the women. The Ithaca Fitness Center, Inc. owns the entire building. The increase in locker room size is not to increase the number of customers. It's for hygiene and to make the customer comfortable by allowing space and providing lockers for clothes and personal items. If we can't provide an adequate locker room for our customers we certainly will lose these people as customers. It's sort of like going into a restaurant for a meal and having no place to sit down. Any consideration by the Board on this matter would be deeply appreciated, not only by me but by many of the more adult type customers that come to the Center. Now, the item that you see there about the parking is given to every member that joins - it is personally given to them and we have had hardly any parking problems since we have leased the Hancock Plaza lot and present this individually to every person. That's about it. Do you have anything to say before questions. . . PAGE 5 BZA MINUTES 11/9/87 MR. STUMBAR: Yes, I would just like to add a few things. We do have a schematic representation of the downstairs right now, as it exists. This was an architect's drawing which we have blown up. The yellow portion there is the portion that is the men's lockers and there is also a sauna, the shower and the bathroom in here. It's placed up against the boiler room - there is no way of going in there to add space - because of the boiler room and the facilities in there - without having to move the heating plant and all the plumbing. of course, if you went this way, you would be actually adding onto the building. This goes through a wall into a different section where the exercise equipment is and this is the big gym portion that was added on at one point - the gymnasium. This is the women's locker and shower, etc. , etc. This is the main entrance on Third Street - to the building - again, this is the first floor. I have a copy of this schematic, slightly less blown up which I would like to make part of the record, essentially. I 'd like to pass it around. The only difference is, the yellow portion is not "yellowed" in but I think it is fairly clear. We have some photographs of the building - the first two photographs have to do with the large gymnasium portion of the building and the next photograph has to do with the portion where the equipment is - the exercise equipment, right next to it. And then there is a picture of the outside, for anyone who is not familiar with it - two pictures of the outside and the last three pictures have to do with the small locker room shower facilities in there right now. As Bob points out, the men's locker room area is less than a hundred PAGE 6 BZA MINUTES 11/9/87 square feet, to accommodate five hundred individuals - approximately five hundred individuals. MR. SIEVERDING: What's the room off of the area labelled "exercise"? MR. STUMBAR: This room is a small lounge that at one time was the garage and for awhile, I guess, the little kids were in there - the little girl gymnasts. MR. SIEVERDING: And it is presently used as. . . MR. MARTIN: A lounge. The floor of that is right down to the ground - cement slab that sits right on the ground. MR. STUMBAR: It's right on slab - it's an add-on. Part of the problem, obviously, with this building is it was kind of put up in sections and added-on - there was no general scheme or plan in the beginning. The upstairs was all apartments and this had been the apartment where a variance was obtained to make a women's locker room larger. The women's locker room had been basically what - in here? MR. MARTIN: No, it was about right in here. . . [pointing to schematic] . . MR. STUMBAR: A portion in here. It was about the size of the men's locker room. I do have a lease agreement - Bob has always been a very good neighbor down here - I don't think you will have many neighbors here complaining about how he handled this - he has always gone above and beyond - as far as trying to do as well as he could by the neighborhood. He did go out in 1984 and he has continued on an annual basis to lease the parking places at the Hancock Plaza so that there is almost unlimited parking fairly PAGE 7 BZA MINUTES 11/9/87 close to the gym in the evening hours when the gym is at the most used portion, this is a copy of that lease which we would like to add and make part of the record. I think that this building is obviously a unique building and Bob is not seeking to expand the use of this building in the sense that he wants to add more customers or add a facility or add onto the building in the sense of making it a "larger business". The purpose is simply to make the people who are there a little more comfortable by having men's locker room spaces and maybe orient himself toward older folks who are less able to put up with the cramped situation in the men's locker room who are maybe a little more into creature comforts. But it is in no sense an attempt to expand the number of people who are there, as indicated in the statistics that Bob gives - the number of people is about six hundred less than it has been in the past and it has kind of levelled off at around thirteen hundred - twelve to thirteen hundred level for the last few years - and that is fine with Bob - he is not planning on extending it in any way. The purpose here is to make the men's locker room liveable and more comfortable. The apartments upstairs and the dual use of this building in that sense is the difficulty and it is getting increasingly hard to deal with it on an apartment upstairs, gym downstairs basis. This is the only building like this in the neighborhood, obviously, and it is a unique situation and not a situation that you will have to deal with with anybody else. There is an additional legal argument that we are making and it has to do with the vagaries of the definition of an extension of a use as set up in the zoning code. I think that if one strictly construes the PAGE 8 BZA MINUTES 11/9/87 definition in the zoning code, the planned use of the upstairs as a locker room facility would not meet the definition of an expanded use - he is not expanding the building and he is not expanding the use strictly speaking. The use that was in contravention of the zoning law had to do with the gymnasium and the number of customers in the gymnasium - that is not being expanded and I think that by a very strict, narrow interpretation of the zoning law, which, of course is the interpretation we get as a Constitutional necessity, and as a legal necessity, that Bob will not be falling within the strictures of an extension of a non-conforming use - in fact - is not doing that. CHAIRMAN TOMLAN: I take it, from your comments Counselor, on the most recent comments are really addressing the first part of your appeal? MR. STUMBAR: That's right, the last came first, right. The last comments had to do with the definition of the extension of a non-conforming use in the variance. Bob had been talking about the factual considerations (unintelligible) initially. CHAIRMAN TOMLAN: Questions from members of the Board? MR. SIEVERDING: How do you separate in terms of use though, the locker and shower facilities, from . . . the buildings primary purpose is recreation and then taking a shower afterward. MR. STUMBAR: How do you separate it? MR. SIEVERDING: It seems that the function of the space that you want to move in to is sort of integral to the function of the entire building - a gymnasium/fitness center. PAGE 9 BZA MINUTES 11/9/87 MR. STUMBAR: Obviously it is in a sense, in that the people who are using the gym are the people who will be most likely using the showers and the locker room - but what I am saying is, the use itself by just making the locker room more comfortable, is not adding onto the use in the traditional sense of making the use greater. People don't come there just for showers basically. People. . . you know, he is not going to have more customers because of the shower room, nor is he going to have more people coming there to just use the shower room - so in that sense we are not going to have more traffic because of the additional locker rooms. MR. SIEVERDING: I think that the point made here is you are going to have less people coming there [unintelligible] MR. STUMBAR: Well, that's true, I mean, that is always a problem if you are not keeping your customers happy, they may leave. . . MR. SIEVERDING: So it really is an integral function of the gymansium. . . MR. STUMBAR: Well its not just a humanitarian move, obviously a business move as well. Although I don't think the intent was to add new customers, I guess the intent was to keep the customers he has more than anything. There is not going to be a big promotion, Ithaca Fitness now has expanded locker room space or anything like that - I don't think that's the point. MR. OAKLEY: But you are talking about bringing in - in a sense - a new class of customers? I mean, you mentioned several times bringing in older. . . MR. MARTIN: We already have older customers, but if we cannot, unfortunately we allowed them to use the locker room - we don't PAGE 10 BZA MINUTES 11/9/87 have showers or anything - just lockers in this apartment area - which we allowed them to use and we stopped going any further with the locker room. But these older people - okay - if they are not allowed to have a locker for their clothes - okay - it is, quite frankly - they probably will not be members the next time. MR. STUMBAR: There are lockers that we moved into the apartment upstairs and when Bob found out that that was not in compliance, he stopped and his intention was to move the showers and the locker room - whatever - upstairs. And when he found out that that wasn't going to fly without a variance, he stopped, except for the lockers that were up there in the apartment and the people he is talking about are the older men who have lockers up there in that upstairs apartment - not an additional non-existing clientele that he is planning on trying to promote. The people who already belong to the Club. MS. JOHNSON: How many men and how many women currently belong? MR. MARTIN: We have approximately five hundred members - between twelve and thirteen hundred - and I would say five hundred of them, basically, would be men. It could go up to six hundred but there are more women than there are men because of the aerobics classes, things like this. MR. OAKLEY: I still have a question about the legal point, which is, that as I understood it - reading it - you were arguing that, in fact, the ambiguity in the law was not that showers were not an expansion of use but that, in fact, expansion within the structure. Once you had a non-conforming use in the structure that that non-conforming use could - once you had a variance for that - that PAGE 11 BZA MINUTES 11/9/87 that non-conforming use could expand within that structure, without further variance. You are not making that argument? MR. STUMBAR: Well, what I am saying is that if you look at the definition of non-conforming use in the relevant section, it says non-conforming use may not be extended or enlarged to other structures. If you look at what a structure is, technically speaking. . . MR. OAKLEY: Did you find the definition for structure in the ordinance? MR. STUMBAR: What? MR. OAKLEY: There is - I had difficulty with the definition of structure in the ordinance. MR. STUMBAR: I did too. I don't think it is well defined - I think there is a lot of ambiguities there and that's what I am saying - these zoning laws have to be constrictly construed and if there is an ambiguity, it is construed in favor of the person whose property is feeling the burden of the zoning regulations. But if you look at that definition, it is very hard to fit Bob within the four corners of that definition. He is not extending or enlarging to other structures. Granted "structure" is ambiguous but I think if you give him the benefit of the doubt as you have to, he hasn't expanded, extended or enlarged to other structures. He is not extending or adding to other land and my argument is that non-conforming structure is not being extended or enlarged - this structure itself is not extended or enlarged and it is obviously a technical and legal argument that I am making based on the narrow way that the zoning law is written. Trying to stay within the PAGE 12 BZA MINUTES 11/9/87 spirit of the law, we have made our factual arguments and would much rather, obviously, do it on that basis but if need be, I think if you read closely the zoning law, we don't have to be here as far as non-conforming use is concerned. And also within the spirit of what an extension of a non-conforming use is, you are adding on to a use - you are creating more traffic there - you are creating more of a problem - consistent with what the zoning law was passed for in the first place - you get more people into the neighborhood - you get a larger structure - you get heavier equipment - you get more traffic - you get more trucks - that's the spirit of the zoning - keeping these kinds of entities separate. Within that spirit, Bob is not asking for any real extension. He is not asking for something that would add customers onto his business. He is adding something that would fit with the demographics of his present business and he has had a cap of six hundred people less than he had just three or four years ago - he has never been a threat to this neighborhood - we've never had people from the neighborhood come in here speaking out against this. He has done everything that he could as a good neighbor as far as extra parking, landscaping, buying the building lot behind and he has been a great neighbor down there. Unfortunately he has this building, perhaps it is in the wrong section of town, but I think within that context he has done a good job. MR. OAKLEY: I have one other small question for you. If Mr. Martin decided to put - as opposed to turning an apartment into a locker room - if he decided to put an additional apartment into the PAGE 13 BZA MINUTES 11/9/87 building, if I read the Zoning Ordinance right, he would have to come before us with an appeal? Is that not correct? MR. STUMBAR: If the apartments were the part that is not conforming? MR. OAKLEY: If he were adding an additional apartment, if you were to, say, turn the woman's locker room back into an apartment, because the building is non-conforming in terms of its area. . . MR. STUMBAR: He would probably have to come back. I would have to check out the history of that, I 'm not sure. MR. SIEVERDING: For an area variance? or for a use variance? MR. STU14BAR: For an area variance but not for the use variance, because it would be a permissible use . . . MR. OAKLEY: But nevertheless - you are arguing that Mr. Martin doesn't even need to come in for an area variance, as I understand it. You are saying that you don't have to be before the Board at all - if your interpretation is correct. MR. STUMBAR: No, I 'm talking about the use and the definition of use. Obviously with the area variance it is a different standard and I think there is no question but that he meets that standard. It is the use variance that has a more difficult standard. MR. OAKLEY: But you would still have to come before the Board. MR. STUMBAR: On an area variance. MR. WEAVER: Question. Maybe a couple. As I understand it, the building and its operation was a legal non-conforming use. MR. STUMBAR: Right. PAGE 14 BZA MINUTES 11/9/87 MR. WEAVER: And do you agree that the Ordinance restricts enlargement or extensions of non-conforming uses in a residential neighborhood? MR. STUMBAR: That's what it tries to do, yes. MR. WEAVER: It is your position that it doesn't? MR. STUMBAR: Not in all situations it doesn't. I think you have to look at how it defines a non-conforming use and how it defines an extension of a non-conforming use and I think you have to keep within the terms of that definition. It is the definition in the variance itself that sets the thing up. MR. WEAVER: So it is your argument that the extension - the word "extension" is the fault in the Ordinance? MR. STUMBAR: Well the way it's defined - the actual definition in the Ordinance. MR. WEAVER: In trying to find out what those words mean - I might even go to the dictionary? MR. STUMBAR: Well you might go to the dictionary unless it is clear in the context of. . . MR. WEAVER: You have already told us it is unclear. MR. STUMBAR: Well, no, some words are unclear - the definition of structure I said is unclear. What I said about the definition of specifically Section 30.49c is that it is very narrow. A non-conforming use may not be extended or enlarged to other structures. Now structure is ambiguous in the Zoning Ordinance but I don't think that sentence is ambiguous - it is clear that you can't extend a non-conforming use to other structures. I think that Bob isn't doing that or to other land - I don't think he is PAGE 15 BZA MINUTES 11/9/87 doing that. I think if he added on back here - that's what he would be doing - he'd be adding on - he'd be extending to other land. Nor may a non-conforming structure be extended or enlarged except by means of a variance. Now that's where you get into the difference about - the philosophical difference about what is extension of a non-conforming structure. It is a technical argument and it is not the one that we would like to hang our hat on, obviously, because the purpose of zoning is something a little bit different . . . . MR. WEAVER: But you first asked us for an interpretation which would, if granted in your favor would mean that's the end of the hearing as far as this application is concerned. . . MR. STUMBAR: That's as far as the use variance is concerned. . . MR. WEAVER: From what you've said, in doing the second part first here, it seems to me that you are enlarging the activity that is non-conforming - that being a gymnasium, fitness center, or whatever - which is, if the lot were cleared, would not be allowed - would be a use that is not allowed in that neighborhood, is that accurate? MR. STUMBAR: Well I don't think we are enlarging the activities but we are, undoubtedly, enlarging space where there is activities occurring. There is no question, because what we are doing is we are making a bigger locker room, basically. MR. WEAVER: Well come now, if his membership is sliced in half, the use extends over the area open to his membership. MR. STUMBAR: Right. PAGE 16 BZA MINUTES 11/9/87 MR. WEAVER: So I say the use is where his members have access too. It seems reasonable that lacking some other way to decide - we can't say that it is a slow day today and that corner over there isn't non-conforming for Tuesdays. Obviously the use is the area that his members have access to and now he is enlarging - or proposes to enlarge into another place that has been conforming use - an apartment. MR. STUMBAR: Well use has nothing to do with area - use is a functional term that determines - that depends on how the space is used - not on the area of the space per se. The non-conforming use is not the fact that he is using X square feet for a gymnasium. The non-conforming use is the fact that he is using this for a gymnasium - that's the non-conforming use, not the amount of space. The area variance is something different. MR. WEAVER: I 'm not confused over that, Counsellor. I don't agree with this theory that taking over more of the building - the building is made up of his business activity plus apartments. There are not other uses are there? MR. MARTIN: That's it. MR. STUMBAR: No. MR. WEAVER: The apartments are a legal use. MR. STUMBAR: Right. MR. WEAVER: His business is a legal non-conforming use. If you expand a non-conforming use into other areas of the building, is that not an expansion - an extension of the activity? PAGE 17 BZA MINUTES 11/9/87 MR. STUMBAR: Well my argument is it is not an extension of the activity, it is an extension of the square footage over which the activity takes place. MR. WEAVER: Oh, you are taking a lineal approach to this. MR. STUMBAR: Right. I 'm looking at use as the function rather than as the area in which the function occurs. MR. OAKLEY: I 'm going to propose to you a reason for the way this paragraph is worded and I want you to respond to it. The basic problem, I think - I suspect, is that a use, as you said, has nothing to do specifically with the area that it takes up and as a result to say that you cannot expand or extend a use would be to say that you cannot in any way make the business grow. You could not in any way increase your membership or so forth - so the people writing this Ordinance went and tried to define it in terms of the area that the use took up - the structures that it took up but instead of using the term "building" which is the normal term for referring what we would call structures, they went to the much more loosely defined "structure" which simply (unintelligible) sort of framework so as to - in a sense - leave it possible for a non-conforming use to expand in terms of the number of customers it takes in, or something like that, or the amount of money it makes, but to make it difficult to expand within a single building, into other parts of the building. I have very great difficulty with this idea that once you get into a building you can expand - once a non-conforming use gets into a building it can expand freely within that building. PAGE 18 BZA MINUTES 11/9/87 MR. STUMBAR: Well I don't agree that that's the case. I mean, that's not my position. In any situation, once you are in the building you can expand to all parts of that building. If you run a supermarket and you are a green grocer, let's say, and you have half the building and you have a non-conforming use that's legal and then the next day you want to decide to add on the butcher shop or the bakery into another third of that building and the next day another section - I think you are expanding the use of that building - but I think it is a contextual thing - it depends on what the non-conforming use is and what the expansion is doing. So, you know, I 'm not saying blanket - once you get into part of the building, if you have taken over that building per se, I don't think that is the case - I think if you expand the part of the use that is non-conforming then you are in contradiction of the non-conforming use section of the zoning law. MR. SIEVERDING: But isn't that, in fact, what is going on here, particularly in the context of taking a legal conforming use and removing that and substituting in its place a non-conforming use. MR. STUMBAR: Well I don't think the fact that he is taking a "legal non-conforming use" really is the significant thing. I think it is whether he is expanding the non-conforming use and the way I look at a non-conforming use - I don't think he is expanding that, unless his intent is to expand the type of business - if he were adding on now a room for doing something that he doesn't do - a reason for more customers coming - a reason to appeal to a different or a larger section of clientele - maybe adding on a game room or a - what else do you do. . . a trampoline area or something PAGE 19 BZA MINUTES 11/9/87 like that. I think that argument would be okay. He has a locker room now - he is just adding on locker space. MR. MARTIN: If I may say, before we continue on, I don't know too much about all the legal stuff that you are talking about, but if you would picture yourself into a facility from about here to here [blocking off a section of the room] okay? This corner. You are going into that facility to change - you are basically changing your clothes and you have other people changing - it is just extremely close quarters and we were asked - hey, this is getting out of hand - students come in, they throw their clothes down and go. This is for more professional - business - older people now and they just simply keep coming to me and saying - we need a larger locker room - we can't, we are bumping rears. Now just picture this area, if you are a member, and all I want to do is stay in the same building and I 'm looking for where we can expand a little bit to give them this locker room. And the only sensible way - the women - if we would go back farther - which you granted, we had to take over an unrentable apartment downstairs because there was just so much noise - but that was given to us by the people who owned the building at that time - the women had the same problem - so we solved the women's problems - it is not great but it's adequate. Now we have the men complaining because they are older more mature men, they are not students anymore. And you take this small area - if you just picture yourself in it - all we want to do is give them a place to put their clothes and a locker and that basically is the simplest part - I just wanted to sort of. . . PAGE 20 BZA MINUTES 11/9/87 MR. SCHWAB: As I recall the hearing last time, you did present evidence that the downstairs apartment was unrentable. MR. MARTIN: Yes. MR. SCHWAB: Now I notice that you don't say that the upstairs apartments are unrentable - just merely not rented. MR. MARTIN: Well you can't charge a lot of rent for it. It was a three-bedroom, two-bedroom, it keeps changing, the way you want it, but we only rent it for four hundred dollars a month, I guess it was, that's extremely cheap. If we put it up the way most apartments would be, we probably could not rent it. That's including all utilities and everything. MR. SCHWAB: The reason I ask that is that if we go against the interpretation and determine that you have to show or demonstrate undue hardship. To my mind you have to then show that the allowed uses in that upstairs are economically unfeasible. I 'm not sure that I quite see why renting them as apartments - which the Zoning ordinance allows you to do - is economically unfeasible. As I recall, at the hearing a couple of years ago - there was a fairly sharp distinction made between that downstairs apartment - the unrentable, i.e. equally unfeasible for anything but a locker room and the upstairs apartments. MR. MARTIN: Well you'd have to put people in there that - it doesn't matter if they hear the music from the aerobics and everything like that. The two aren't very compatible. In fact, the whole building is not very compatible for apartments but at the time we put them into apartments. CHAIRMAN TOMLAN: Helen, any questions? PAGE 21 BZA MINUTES 11/9/87 MRS. JOHNSON: No. CHAIRMAN TOMLAN: Any other questions from members of the Board? Given the fact that we've been on the case now for three-quarters of an hour - given the agenda I think we ought to move along. Thank you gents. MR. OAKLEY: We've been waiting so long for this appeal, I kind of hate to give it up. CHAIRMAN TOMLAN: Is there anyone else who would like to speak in favor of either the interpretation or the variance? [no one] Is there anyone who would like to speak in opposition? [no one] That being the case, it is all ours. PAGE 22 BZA MINUTES 11/9/87 DECISION ON APPEAL NUMBER 1785 FOR 119 THIRD STREET The Board of Zoning Appeals considered the request of Robert Martin for an interpretation or, in lieu of a favorable interpretation, a use variance to permit the retroactive approval of the conversion of an apartment (No. 2) to locker room and shower space for the gymnasium at 119 Third Street. The decision of the Board is as follows: Appeal No. 1785a (Interpretation) MR. WEAVER: I move that Section 30.57 and 30.49c, which deal with the extension or enlargement of a non-conforming use be interpreted to mean that the non-conforming use has been extended or enlarged if the square footage of the building devoted to the non-conforming use is increased. MR. SIEVERDING: I second the motion. VOTE: 6 YES; 0 NO Building Commissioner's interpretation upheld Appeal No. 1785b (use variance) MR. SCHWAB: I move that the Board deny the use variance requested in Appeal Number 1785. MR. WEAVER: I second the motion. PROPOSED FINDING OF FACT: The testimony revealed that the upstairs apartments are rentable for something like $400.00 a month; therefore no evidence was shown that the upstairs apartments are not economically feasible for a use that conforms to that zoning. VOTE: 6 YES; 0 NO DENIED PAGE 23 BZA MINUTES - 11/9/87 SECRETARY HOARD: The next appeal is APPEAL NUMBER 1792 FOR 211 AUBURN STREET: Appeal of Ron and Carol Schmitt for an area variance for deficient setbacks for the front yard and one side yard under Section 30.25, Columns 11 and 13 of the Zoning Ordinance, to permit the conversion of the single-family dwelling at 211 Auburn Street to a two-family dwelling. The new apartment will replace a business office for a contractor's business which is no longer at this address. The property is located in an R-2b (Residential, one- and two-family dwellings) Use District in which the proposed use is permitted; however, under Sections 30.49 and 30. 57 the appellants must first obtain an area variance before a building permit or Certificate of Occupancy can be issued for the conversion. CHAIRMAN TOMLAN: Good evening to you both. If you would begin by identifying yourselves into that little piece of plastic in front of you. MR. SCHMITT: I 'm Ron Schmitt. MS. SCHMITT: I 'm Carol Schmitt. MR. SCHMITT: Just so you' ll have an idea of what we are trying to do here . . . MR. WEAVER: Is there a north on this plan? MR. SCHMITT: No we didn't put it on there. North would be. . . the street is out here and north would be there. . We are proposing to renovate what was for many years the Schmitt's Heating Office at PAGE 24 BZA MINUTES - 11/9/87 211 Auburn Street into attractive one-bedroom apartment which is as large as you see there, with a full eat-in kitchen, a large living room and the main part of the house - which used to be my family home - won't be changed. And that was my family home since around 1924 - 1925 - it has been a long time in the family. MS. SCHMITT: We own the adjoining properties on that street - four in a row and purchased some of them from Ron's parents and have been doing a lot of renovations and have good response from all of the neighbors who are pleased with what we have done and had some good positive response from the letters that we sent out in regard to this. It was used as a business office. Ron's father used it for his Company. MR. SCHMITT: This space down here was used. . . MS. SCHMITT: Yes, so it is a very large space as you can see by the measurements - that is why we thought we would pass that out. MR. SCHMITT: And also, just to give you an idea of what we do into apartments. This is a before and after picture of the house next door and a picture of the kitchen that we renovated. MS. SCHMITT: We have it down to a system in the way that we renovate and we have found that the remodelling that we do is working nicely so we thought we would show the pictures. MR. SIEVERDING: There are two floors above this then? MR. SCHMITT: Yes. MS. SCHMITT: Yes, it is a single family home. MR. OAKLEY: Rented as a two-family home. PAGE 25 BZA MINUTES - 11/9/87 MS. SCHMITT: We have a particular fondness for this area, of course, because it was in Ron's family and this particular building is something I doubt if we will ever leave out of our hands again. CHAIRMAN TOMLAN: That is for another twenty-three years? MS. SCHMITT: Yes, until we are old and gray. MR. SCHMITT: As Carol said, we own the houses on both sides, so even though there is a deficiency in area, it is our own property on the other side. So we actually have quite a bit of room. And we have a lot of parking area - there is no parking problem at all, we have an abundance of parking. MS. SCHMITT: A lot of big delivery trucks - you should see them, they used to come down. . . they are back yards now - it is a very pleasant Fall Creek neighborhood. We have a lot of pride in the apartments that we put in and the renovations that we have made there and as I said, we have had wonderful response from the neighbors. Our plans for this apartment in the basement which is just standing empty and the office - as I said, we have our technique down to convert into a one-bedroom apartment and we just do one-bedroom apartments. . . CHAIRMAN TOMLAN: You mention the wonderful response of the neighbors, do you have any proof of that? MR. SCHMITT: No, they were phone calls. MS. SCHMITT: Yes, and when we are out there working and painting and cleaning up, people come over and we tour them through what we have done. CHAIRMAN TOMLAN: Any questions from members of the Board? [none] PAGE 26 BZA MINUTES - 11/9/87 Thank you both. Is there anyone else who would like to speak in favor of granting this area variance? [no one] Is there anyone who would like to speak in opposition? [no one] That being the case. . . PAGE 27 BZA MINUTES - 11/9/87 DECISION IN APPEAL NUMBER 1792 FOR 211 AUBURN STREET The Board of Zoning Appeals considered the request of Ron and Carol Schmitt for an area variance to permit the conversion of the single-family dwelling at 211 Auburn Street to a two-family dwelling. The decision of the Board was as follows: MR. WEAVER: I move that the Board grant the area variance requested in Appeal Number 1792 . MS. JOHNSON: I second the motion. Proposed findings of fact: 1. The deficiencies are pre-existing conditions, side yard and front yard setback, that are typical of setbacks in the neighborhood and will not create any substantial reduction in the quality or minimum standards of the neighborhood. 2. Correcting the deficiencies would require demolition or moving of the building, both of which are unreasonable. 3 . The proposed change is a change from a legal non-conforming use to a conforming use which is most appropriate in the neighborhood. VOTE: 6 YES; 0 NO AREA VARIANCE GRANTED PAGE 28 BZA MINUTES - 11/9/87 SECRETARY HOARD: The next appeal is Appeal Number 1793 for 123 Highland Place: Appeal of Evelyn Holdheim for relief from a September 11, 1987 Cease and Desist order from the Building Commissioner, to permit five unrelated persons to occupy the top floor apartment at 123 Highland Avenue until the end of the current school year. The appellant is requesting a temporary area variance for deficient off-street parking, deficient lot size, and deficient setbacks for one side yard and the rear yard, under Section 30.25, Columns 4, 6, 12 and 14 of the Zoning Ordinance. The apartment is approved for only three persons under the Zoning Ordinance, because of the listed deficiencies. The property involved is a four-unit multiple dwelling located in an R-3a (Residential, multiple dwellings) Use District, in which the use is permitted; however, under Section 30. 57 the appellant must obtain an area variance for the listed deficiencies before a Certificate of Compliance can be issued to allow the use to continue. MRS. HOLDHEIM: The only thing is that it is just a temporary variance. A mistake has been made - I was out of town in a car accident and my son rented the apartment. It had never been rented before to five people and he rented it - I was out of town - so there are five people in there now and they have no cars but it is PAGE 29 BZA MINUTES - 11/9/87 just that I can end the lease because the lease is legal and - I don't know what else to say. CHAIRMAN TOMLAN: I see. First, just as a matter of procedure, for the record, you are Evelyn Holdheim? MRS. HOLDHEIM: Yes. CHAIRMAN TOMLAN: Very good, and you live at 706 Cayuga Heights Road and own the property? MRS. HOLDHEIM: Yes. CHAIRMAN TOMLAN: I just wanted to make sure that we got that on the record. MR. WEAVER: Mr. Chairman, while we are making our corrections or additions, there is confusion between the appeal and the notice of appeal - one refers to Highland Avenue and the other refers to Highland Place. MRS. HOLDHEIM: It is Highland Place. MR. WEAVER: Well on our printed document and verbally it was referred to as Avenue. It should be corrected. CHAIRMAN TOMLAN: Questions from members of the Board? Let me begin then by asking one. What would be the implications to you of our denial of this appeal? MRS. HOLDHEIM: I don't care. I told them already that two should go out because it was not legal. They said that either we all five stay all year or we all five go out and then they went to Cornell to the Legal Aid and they said well don't worry, it will take time until your lease ends - till you lease is over. . . CHAIRMAN TOMLAN: I see. PAGE 30 BZA MINUTES - 11/9/87 MRS. HOLDHEIM: And I guess I would have to take a lawyer because I told them already that two should go out because I really don't care. . I did not bring the lease but I showed the lease, it was signed by my son - I was sick at the time, I couldn't rent the apartments. My son was a senior and he was in his final exams and he just wanted to get it over with. To be frank, I did not know, I never did it - because I hate to have five people in a three-bedroom apartment, because they use more water and (unintelligible) even three is bad enough but I didn't know it either, neither did my son - I mean, I did not tell him to rent it to five people but I did not tell him he could not and he could not reach me because I was in a car accident at the time. CHAIRMAN TOMLAN: Further questions? MS. JOHNSON; So its five people in one of the three-bedroom apartments? MRS. HOLDHEIM: Yes. But the rooms are pretty large. Actually I have - the Housing Board already gave - granted already the permission - and I have everything done for the certificate of compliance and all I need for the certificate of compliance is - I mean for the temporary variance - I don't care about anything else and all I need, before the certificate of compliance can be issued, I need permission of the Zoning Board - a variance of the Zoning Board. MS. JOHNSON: This lease runs through what date? MRS. HOLDHEIM: Through the end of June, I think - to the end of the school year. PAGE 31 BZA MINUTES - 11/9/87 MS. JOHNSON: So if your son rented it until the end of March, when did you figure out there were five people? When did you recover enough to know that. . . MRS. HOLDHEIM: (UNINTELLIGIBLE) besides I did not know that it was - I only was unhappy because I did not like the idea but I did not know that it was against the law because the question posed itself and I never had five people in there. And I was not happy at all. I had three double beds and they had to be brought out because naturally they could not sleep in one bed - I had to put twin beds in there and I had to buy more chest of drawers and more desks - there was room for it but I certainly was not happy about it, you can believe me. MR. OAKLEY: I was just wondering if you compensated yourself for your trouble, by raising - by increasing the amount of income you are drawing for the apartment? MRS. HOLDHEIM: Yes my son charged more but they also need more water - five showers a day - in the morning - and I had the whole apartment - what did you - was it painted, or windows put in or whatever - I put over a thousand dollars into it. More than I will get out of it, I assure you. I don't have the bills here but you have the list of all the things that had to be done and were done. MR. SIEVERDING: How many people live in the building right now? MRS. HOLDHEIM: Let me see, there is a one-bedroom apartment. . . MR. SIEVERDING: For one person? MRS. HOLDHEIM: For one person and there is a three-bedroom apartment on the first floor with three people and there is a four-bedroom apartment that I had to bring down all of the double PAGE 32 BZA MINUTES - 11/9/87 beds, which were on the third floor - with four people and then . . . but the rooms are pretty large and they all have a special (unintelligible) where the beds are in - otherwise there would not have been room to put - instead of one chest of drawers and one desk - two desks and two chest of drawers in there. . . MR. SIEVERDING: So normally there would be eleven and now there are thirteen living there? MRS. HOLDHEIM: Yes. MR. SIEVERDING: And I noticed that there is no parking at all. MRS. HOLDHEIM: But they have no cars - they have bikes which are standing all around but I do admit that. But it is twenty seconds to walk to Eddygate so people who rent there, they rent because they don't have a car. Besides if anybody would have a car, nobody can park there, even when I go, I can't park there. It is the worst street in the whole town of Ithaca. CHAIRMAN TOMLAN: Further questions? [none] Thank you. Is there anyone else who would like to speak in favor of granting this area variance? [no one] Is there anyone who would like to speak in opposition? [no one] That being the case, I ' ll entertain a motion or discussion. PAGE 33 BZA MINUTES - 11/9/87 DECISION ON APPEAL NUMBER 1793 FOR 123 HIGHLAND PLACE The Board of Zoning Appeals considered the request of Evelyn Holdheim for relief from a September 11, 1987 Cease and Desist order from the Building Commissioner to permit five (5) unrelated persons to occupy the top floor apartment at 123 Highland Place until the end of the current school year. The decision of the Board was as follows: MR. SIEVERDING: I move that the Board deny the area variance requested in Appeal Number 1793 . MS. JOHNSON: I second the motion. PROPOSED FINDINGS OF FACT: 1. Increase in occupancy on the top floor exacerbates what is already a lot on a property that is deficient in key areas for this neighborhood, namely lot area, the side yards and parking. 2. It has not been demonstrated that practical difficulty or special conditions exist which would warrant the granting of the variance. VOTE: 6 YES; 0 NO TEMPORARY AREA VARIANCE DENIED PAGE 34 BZA MINUTES - 11/9/87 SECRETARY HOARD: The next appeal is Appeal Number 1794 for 207 Prospect Street: Appeal of Kalit Chu for an area variance for deficient setbacks for the front yard and one side yard under Section 30.25, Columns 11 and 13 of the Zoning Ordinance, to permit the conversion of the single-family dwelling at 207 Prospect Street to two three-bedroom units. The property is located in an R-2a (Residential, one- and two-family dwelling) Use District in which the proposed use is permitted; however under Section 30. 57 the appellant must first obtain an area variace for the listed deficiencies before a building permit or Certificate of Occupancy can be issued for the proposed conversion. CHAIRMAN TOMLAN: Good evening. If, once again, you would begin by identifying yourself so that the recorder can pick us up. MR. CHU: I 'm Kalit Chu of Interlaken. What I am proposing is to convert a very large single family home with effectively five bedrooms, two baths, two staircases and a very large kitchen and over-size lot, into a two separate unit of three bedrooms each - which is what I believe a much more appropriate use of the building for a couple of reasons. One is that under the fact that its present size is so large that we have tried to sell the property as a single family property for about half a year now and the problem we have is people - it is very difficult nowadays to find a family large enough to occupy such a large home in that area. The house might have been more appropriate when the house was designed and PAGE 35 BZA MINUTES - 11/9/87 built - which was probably a hundred and fifty years ago. But at the present time in this present neighborhood where most of the homes in the neighborhood are one, student occupied and two, not single family - most of them are duplex - as a matter of fact it is two units on either side of this property. It is much more appropriate to be occupied by two smaller families than by one single family. As a matter of fact, this building was once occupied by a previous owner as a husband and wife with up to seven children in it. With the proposed conversion into two three-bedroom units, it would bring in two smaller families which would make the property much more - would basically attract less number of people into the building than previously occupied by it. In order to make the conversion I need the area variance for that. CHAIRMAN TOMLAN: You are the son of the owners? MR. CHU: Yes. CHAIRMAN TOMLAN: Further questions from members of the Board? MS. JOHNSON: So these are going to be two, two story apartments? MR. CHU: Yes. One in the front portion of the house and one unit on the rear portion of the house. They already have their own separate entrance - the conversion will not involve any exterior modification whatsoever. It is very minimum - it is just a matter of adding a kitchen and the necessary plumbing and that would be in the first floor and the plumbing would be through the floor directly into the basement. There is already two staircases and a front entrance and a back entrance and there is sufficient parking for six (unintelligible) PAGE 36 BZA MINUTES - 11/9/87 CHAIRMAN TOMLAN: The blacktop drive which leads to your two car garage, that is solely your property and there is no easements or encumbrances or you don't share that in any sense with the property immediately adjacent - 211? MR. CHU: That's not true. The owner of 211 has the right of way to use the blacktop drive to her back yard, which she gravelled a portion of it to park her car. You have a copy of the survey there. Incidentally we tried to sell the property for over six months and the idea of converting it to a two unit was actually given to us by the owner of 211 - after talking to her. We bought the property from her as a matter of fact. She told me that at one point before her family bought and moved into the property, in the 1501s, the previous owner had used the property as a two-unit by putting a door on one of the first floor - I think it was the one in front of the rear staircase, in front of the kitchen, and she lived in the rear room and rented the rest of the building in the front to couples and another family upstairs. CHAIRMAN TOMLAN: Further questions from members of the Board? MR. SIEVERDING: Just one regarding the driveway. The parking that you have, the four spaces are two in the garage and then two stacked in front of the garage? MR. CHU: Yes. The yard behind this section here - that is actually quite large - this space here - I don't know if this drawing is very accurate or to scale - but you can definitely park two cars here and a third car over here and still will allow access to 211. PAGE 37 BZA MINUTES - 11/9/87 CHAIRMAN TOMLAN: While it is not required by virtue of the fact that you are going for an area variance, do you have any specific information about your proposal to sell the property and the difficulties you had associated with that? You don't have anything in writing particularly or any specifics? It is not required but I am just asking in general. MR. CHU: Okay, my wife who is the listing realtor for it, she is in the audience, as a matter of fact, she can tell you that the number of showings - in fact we have numerous purchase offers on it and all of which wants to purchase the property subject to getting a variance to convert the building for six, seven to eight students rental housing. I don't want to see the building be occupied by students to tell you the truth, I would much rather convert it into a two unit and try to rent it to two small families. After trying to rent the building out during the summer to single families, the problem, I'm sure you can understand, a family who is large enough to be able to afford high enough rent to make to make it worthwhile to the owner, they can easily go out and purchase a home and pay the mortgage. MR. SIEVERDING: So you are here actually to retain ownership? You are not here on behalf of a prospective purchaser for this required area variance? MR. CHU: That's right. CHAIRMAN TOMLAN: Further questions? [none] Thank you. Is there anyone else who would like to speak on behalf of granting this area variance? [no one] Is there anyone who would like to speak in PAGE 38 BZA MINUTES - 11/9/87 opposition? [no one] That being the case, I will accept motion, comment, discussion. . . PAGE 39 BZA MINUTES - 11/9/87 DECISION ON APPEAL NUMBER 1794 FOR 207 PROSPECT STREET The Board of Zoning Appeals considered the request of Kalit Chu for an area variance to permit the conversion of the single-family dwelling at 207 Prospect Street to two three-bedroom units. The decision of the Board was as follows: MR. WEAVER: I move that the Board grant the area variance requested in Appeal Number 1794. MR. SIEVERDING: I second the motion. PROPOSED FINDINGS OF FACT: 1. The deficiencies are pre-existing, namely the deficient front and side yard setbacks and practical difficulty exists in that correcting those deficiencies would require demolition or moving of the building, both of which are impractical. 2. Effect upon the neighborhood would result in no substantial change in use or in area occupied. As I read the Ordinance - once converted there would only be a requirement for two (2) off-street parking spaces. 3. Alternatives would be involved with use, not area, variance so it seems to be a reasonable use of the property. VOTE: 6 YES; 0 NO AREA VARIANCE GRANTED PAGE 40 BZA MINUTES - 11/9/87 SECRETARY HOARD: The next appeal is APPEAL NUMBER 1795 FOR 527 WEST SENECA STREET: Appeal of Fareed M. Abdulky for an area variance for deficient lot width, lot coverage exceeding the maximum permitted, and deficient setbacks for two side yards and the rear yard, under Section 30.25, Columns 7, 10, 12, 13, and 14 of the Zoning Ordinance, to permit an addition to the front of the commercial building at 527 West Seneca Street. The property is located in a B-2a (Business) Use District in which the proposed use is permitted; however under Section 30. 57 the appellant must first obtain an area variance for the listed deficiencies before a building permit or Certificate of Occupancy can be issued for the proposed conversion. CHAIRMAN TOMLAN: Good evening. If you would begin by identifying yourself for the plastic machine. MR. ABDULKY: My name is Fareed Abdulky, I live at 112 West Haven Road. I provided a map and I 'm sure everybody has it, right? MR. SIEVERDING: Yes we have the map. MR. ABDULKY: I want the variance to improve the appearance of said property. As presently constructed, the building has an unfinished appearance and the unconstructed area looks like an alley. Completion of construction would provide a more symmetrical finished look to the building and to provide more interior space so we may provide more smoking and non-smoking lounge area for our employees. Smoking will be prohibited in the common work areas. PAGE 41 BZA MINUTES - 11/9/87 City requirement of four foot wide hallways and large restroom areas to allow handicapped accessibility severely limit our ability to provide this area without additional interior space. It is our opinion that either the State of New York or Tompkins County will, in the near future, enact smoking regulations similar to those that were recently proposed by the Board of Health Commissioner and struck down by the New York State Court. Enactment of this type of regulation will make it a legal requirement for us to provide eleven employees with smoking and non-smoking lounge areas. Construction of these facilities now will be much more cost effective than having to add them at a later date. My other problem - I found out last week - the Insurance Company questioning the fact if a van stopped right in here at the edge of the land right up to the store, it could open the van and bring all kind of equipment to break in - and this is very important to us too. Nobody would see him - what he was doing - nobody would see what a person was doing. It is really - you know - when you are driving back down Seneca Street - you can see immediately - if you are driving on the left-hand side - this is a very bad looking area on the front. CHAIRMAN TOMLAN: Questions from members of the Board? MR. WEAVER: Is there any reason why security is a particular concern of yours? MR. ABULDKY: Yes, I have a lot merchandise and jewelry. . . CHAIRMAN TOMLAN: John you had a question? MR. OAKLEY: Well, this lot is very well covered and it occurs to me that this - there is very little room for those normal PAGE 42 BZA MINUTES - 11/9/87 accoutrements of business life, •like dumpsters or just trash cans and I wonder what are you going to do with your trash when you get rid of your alley? MR. ABDULKY: Well we have a big four hundred square foot in the back - storage area. It is now garage and not going to be in compliance with anything - you know - it's good only for storage and. . . CHAIRMAN TOMLAN: Down here on this - in this corner is the garage. That garage is accessed from Meadow Street. MR. OAKLEY: And you do have access? MR. ABDULKY: Yes. We don't have - you know - we are not the type of business to produce a lot of waste or anything like that. We throw away a couple of pieces of paper every day - junk mail. MR. SCHWAB: You don't throw away any scrap gold? MR. ABDULKY: No we don't throw away those, we keep them all in the back. 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 this area variance? [no one] Is there anyone who would like to speak in opposition? [no one] Then I will entertain a motion. PAGE 43 BZA MINUTES - 11/9/87 DECISION ON APPEAL NUMBER 1795 FOR 528 WEST SENECA STREET The Board of Zoning Appeals considered the request of Fareed Abdulky for an area variance to permit an addition to the front of the commercial building at 527 West Seneca Street. The decision of the Board was as follows: MR. WEAVER: I move that the Board grant the area variance requested in Appeal No. 1795. MR. SIEVERDING: I second the motion. PROPOSED FINDINGS OF FACT: 1. There are practical difficulties in conforming with the Ordinance in that the deficiencies of setback, lot coverage, etc. are pre-existing conditions, impossible to repair other than by destruction of the building. 2 . The proposed change will, in fact, make the building more presentable as a store front, street front. 3 . The proposed change will not result in any substantial change in use or in appearance in the neighborhood. VOTE: 6 YES; 0 NO AREA VARIANCE GRANTED PAGE 44 BZA MINUTES - 11/9/87 SECRETARY HOARD: The next appeal is APPEAL NUMBER 1796 FOR 117 TREVA AVENUE: Appeal of Edmund and Joyce Hurd for an area variance for minimum lot size, and deficient setbacks for the front yard and one side yard, under Section 30.25, Columns 6, 11, and 13 of the Zoning Ordinance, to permit the construction of a deck at the rear of the single-family dwelling at 117 Treva Avenue. The property is located in an R-1b (Residential, single-family dwelling) Use District in which the proposed use is permitted; however under Sections 30.49 and 30.57 of the Zoning Ordinance the appellant must first obtain an area variance for the listed deficiencies before a building permit or Certificate of Occupancy can be issued for the proposed deck. CHAIRMAN TOMLAN: Good evening. I think you've been here before so you should know the procedure. MR. HURD: I 'm Edmund Hurd. MRS. HURD: I 'm Joyce Hurd. MR. HURD: We want to put a deck on the west side of our house approximately six by thirty and a small balcony over the deck that is existing there now. CHAIRMAN TOMLAN: Is this, I 'm just curious - the last step in a rather remarkable transformation? MR. HURD: Yes, right. CHAIRMAN TOMLAN: Questions from members of the Board? Stewart? PAGE 45 BZA MINUTES - 11/9/87 MR. SCHWAB: There is really no one behind you for quite a ways, right, who would see this deck? MR. HURD: No. MR. SCHWAB: I didn't go by there this time, have you built the rest of it? MR. HURD: It's just about done - it's getting there, we trying for Christmas, but I 'm not sure we are going to make it. MRS. HURD: We'd like to be in there for Christmas, but I 'm not sure. MR. SCHWAB: And build the deck pretty much right away or. . . MR. HURD: Yes, right away. CHAIRMAN TOMLAN: Is that the end of your questions? MR. SCHWAB: That's the end of my questions. CHAIRMAN TOMLAN: Thank you both. Is there anyone else who would like to speak in favor of granting this area variance? [no one] Is there anyone who would like to speak in opposition? [no one] Very good, I'll entertain a motion. PAGE 46 BZA MINUTES - 11/9/87 DECISION ON APPEAL NUMBER 1796 FOR 117 TREVA AVENUE The Board of Zoning Appeals considered the request of Edmund and Joyce Hurd for an area variance to permit the construction of a deck at the rear of the single-family dwelling at 117 Treva Avenue. The decision of the Board was as follows: MR. OAKLEY: I move that the Board grant the area variance requested in Appeal Number 1796. MS. JOHNSON: I second the motion. PROPOSED FINDING OF FACT: 1. The proposed addition of the deck will in no way exacerbate the existing deficiencies and it would indeed be very difficult to repair the existing deficiencies short of destruction or moving the house. VOTE: 6 YES; 0 NO AREA VARIANCE GRANTED PAGE 47 BZA MINUTES - 11/9/87 SECRETARY HOARD: The next appeal is APPEAL NUMBER 1797 FOR 401 RICHARD PLACE: Appeal of Louis J. Cacciotti for an area variance for deficient front yard setback for an accessory structure under Section 30.42 of the Zoning Ordinance, to permit the construction of a two-car garage within the required front yard at 401 Richard Place. The property is located in an R-1a (Residential, one-family dwellings) Use District in which buildings must be at least twenty-five feet back from a front property line. CHAIRMAN TOMLAN: Good evening. If you would begin by identifying yourselves. MR. CACCIOTTI: I'm Louis J. Cacciotti. MR. CLYNES: I 'm James J. Clynes, Jr. , local attorney. For the purpose of identification, I am the City Judge but I am legally and ethically entitled to be here. CHAIRMAN TOMLAN: We seem to remember you before. MR. CLYNES: Yes, I 've been doing it for years and it has never been challenged. Mr. Cacciotti - I assume, Commissioner, that they have a copy of the survey? SECRETARY HOARD: Yes. MR. CLYNES: He proposes to build a garage - it is one of those situations where it is a corner lot - Richard Place and Sunrise Road - and even though his address is listed on Richard Place, it has been determined that the main entrance is Sunrise and he proposes to build - he has no garage now - he parks on the street, PAGE 48 BZA MINUTES - 11/9/87 as do some people on West Hill - as a West Hill resident, I wish they would all get garages. It is thirty by twenty-four and the request is that he be permitted to build a garage six feet from the property line instead of the required minimum of twenty-five feet. CHAIRMAN TOMLAN: As I understand it right now the parking would be immediately below the thirty foot mark on that line, is that true? MR. CACCIOTTI: That is where my driveway is now, right below the thirty foot mark. CHAIRMAN TOMLAN: Was there once a garage beneath the house? MR. CACCIOTTI: It's a study now. CHAIRMAN TOMLAN: It's a study now. . . MR. CACCIOTTI: I never used it, it was too small. CHAIRMAN TOMLAN: I see, so there was a garage and that's why the parking space is. . . MR. CACCIOTTI: That's why the original driveway was there - on Sunrise, right. It is a very small garage - I never believed in putting vehicles in a house anyway - fumes from the gas. . . CHAIRMAN TOMLAN: I understand. The number of cars - going by the last couple of days, there were at least two cars in the driveway and there was one on the street, that I remember, are all three connected with your house in some way? MR. CACCIOTTI: I 've got three and my daughter was visiting - if it was during the weekend. CHAIRMAN TOMLAN: I was just kind of wondering what kind of a party you were continually having. MR. CLYNES: I wasn't invited. PAGE 49 BZA MINUTES - 11/9/87 CHAIRMAN TOMLAN: Neither were we. . . questions from members of the Board? SECRETARY HOARD: One thing that doesn't show in your diagram is that behind the proposed garage - to the right of it on your diagram - below the picture, is a swimming pool. . . MR. CLYNES: It encompasses this area, yes. MR. CACCIOTTI: I 'd have to build on the pool if I complied with the regulations. CHAIRMAN TOMLAN: That's a good clarification. . . MR. SIEVERDING: Sounds like a reasonable alternative - there really isn't any other space to build it. CHAIRMAN TOMLAN: Well you could slide it down and away from the house further, that means. . . MR. CLYNES: But you would still have the same setback. . . CHAIRMAN TOMLAN: Yes, sure. MS. JOHNSON: So the garage would be detached. . . MR. CACCIOTTI: It is approximately twenty feet from the corner of the house. MR. CLYNES: It would be detached, yes. MR. CACCIOTTI: Yes, it is definitely detached. MS. JOHNSON: You are not going to build an attached garage? MR. CACCIOTTI: No, I don't want that. CHAIRMAN TOMLAN: What happens - you say the garage will face the west with the present driveway to be used as an entrance. MR. CACCIOTTI: You see where the twenty foot marker goes through the garage building there? That's where the door would be and you swing out and around. PAGE 50 BZA MINUTES - 11/9/87 MR. CLYNES: In other words, you would enter on the driveway and swing. . . MR. CACCIOTTI: West. CHAIRMAN TOMLAN: The curb cut remains the same? MR. CACCIOTTI: The curb cut remains the same and you are not driving into the road where the side of the garage is - in other words, the entrance will not be on Sunrise. You are facing west and you swing around so the cut is the same - there is no change in the cut. CHAIRMAN TOMLAN: Further questions? [none] Thank you, gentlemen. Is there anyone who would like to speak in favor of granting this area variance? [no one] Is there anyone who would like to speak in opposition? [no one] That being the case, discussion? PAGE 51 BZA MINUTES - 11/9/87 DECISION ON APPEAL NUMBER 1797 FOR 401 RICHARD PLACE The Board of Zoning Appeals considered the request of Louis J. Cacciotti for an area variance to permit the construction of a two-car garage within the required front yard at 401 Richard Place. The decision of the Board was as follows: MR. WEAVER: I move that the Board grant the area variance requested in Appeal Number 1797. MS. JOHNSON: I second the motion. PROPOSED FINDINGS OF FACT: 1. Locating accessory building in the proposed location will not make any substantial change on this lot, in fact, the cars would be parked in approximately the same position relative to the street and will, in fact, provide an opportunity to get them in and out of sight and out of the weather. 2 . There will be no discernible effect upon any neighboring residence. 3 . There is not a convenient alternative location on the site. VOTE: 6 YES; 0 NO AREA VARIANCE GRANTED PAGE 52 BZA MINUTES - 11/9/87 SECRETARY HOARD: The next appeal is APPEAL NUMBER 1798 FOR 218 SOUTH ALBANY STREET: Appeal of Joseph Daley for an area variance for deficient lot area, and deficient setbacks for the front yard and one side yard, under Section 30.25, Columns 6, 11, and 13 of the Zoning Ordinance, to permit the use of a portion of the two-family dwelling at 218 South Albany Street for a Bed and Breakfast (tourist home) operation. The property is located in an R-3a (Residential, multiple dwellings) Use District in which the proposed use is permitted; however under Section 30. 57 the appellant must first obtain an area variance for the listed deficiencies before a building permit or Certificate of Occupancy can be issued for the proposed use. CHAIRMAN TOMLAN: Again, please begin by identifying yourself. MR. DALEY: My name is Joe Daley, I live at 218 South Albany Street and I live in one of the nicer houses in town. It has got stained glass windows and chestnut wrap-around staircase and Italian tiled fireplaces, and so forth, and every time I have to rent out the back half, which I currently do, I feel like I 'm playing Russian Roulette - never knowing how the tenants might treat it. I try to screen them as well as I can but it's never a hundred percent and so for that reason and also a career change for Kathy, we've decided to start a bed and breakfast at our house. What we plan to do initially, is just rent out - the one room that we now have as a guest room to see how well we like it so it's not the permit for PAGE 53 BZA MINUTES - 11/9/87 the use of a portion - it is only for the immediate future - what we really want to do though, is if we do find that we like it, is to convert the back apartment into a - to continue with having a total of four rooms as rental rooms for a bed and breakfast. I know that there was one - or I guess two letters that I am aware of about parking and I 'm not asking for a variance for parking. I expect to and have made the measurements and feel I can provide the parking for four rooms. In addition to just the legal aspects of that, we plan on having a luxury type of establishment and I don't think it would behoove us to ask the people that are staying overnight - oh, let's see, this is an odd night - that means you have to park around the corner to make sure that you don't get a ticket, so we fully intend to provide the parking that is required for every room that we intend to rent. That's all that I have to say. CHAIRMAN TOMLAN: So the total is going to be four rented rooms? MR. DALEY: Yes, at its most expanded. CHAIRMAN TOMLAN: Further questions from members of the Board? MR. WEAVER: Yes, I need clarification on the off-street parking requirement. If there be four rented rooms plus a family, how do you get down to four spaces required? MR. DALEY: Five is what I understood - that is what I 'm prepared to. . . MR. WEAVER: I 'm looking at the worksheet. CHAIRMAN TOMLAN: We've got a worksheet that can digest this. Tom, do you want to take a crack at that? MR. WEAVER: I wasn't asking you to interpret that. . . PAGE 54 BZA MINUTES - 11/9/87 SECRETARY HOARD: Well let's see - I came up with that - four rented rooms plus one room for the - that would be five. MR. DALEY: Yes, that's what I thought. SECRETARY HOARD: So that should be five on the worksheet. MS. JOHNSON: Where do you plan to have the parking? MR. DALEY: Well there is a two-car garage that is currently mine and then, unfortunately I 'm going to have to eliminate almost all of the back yard - that's really the only way to provide them comfortably - the additional three spaces. MS. JOHNSON: So the common garage is. . . MR. DALEY: Two are owned by me. . . MS. JOHNSON: Capacity of the garage is two? MR. DALEY: Yes. CHAIRMAN TOMLAN: Now in looking at the garage today I noticed that there was an addition to the right hand side and that the back yard had been paved, in any event, with a concrete pad. So, in essence, there is no significant change in the back yard from what now is, under your new proposal, particularly, with respect to parking. MR. DALEY: Well - again, to make it comfortable - I probably will end up having to remove a couple of the fruit trees that are in the corner and make it longer, so that it will be easier. I could probably comply with the existing one, but I don't even think about doing it under those circumstances, for the reason I said. CHAIRMAN TOMLAN: Well in that you now have been found to need a little parking, do you want to address the question that has been raised by a couple of the folks in the neighborhood about the way in which the building would be used with respect to parking? PAGE 55 BZA MINUTES - 11/9/87 MR. DALEY: I 'm sorry, exactly what do you want me to address? CHAIRMAN TOMLAN: Well, for example, if we are thinking about loading and unloading and if we are thinking just simply providing the parking, obviously you are - at this point - in a maximum use sort of situation, with all rooms filled, whomever is coming - that last person in the door, so to speak, is faced with one side of the street or the other side of the street or some other kind of alternative. MR. DALEY: No. I expect to be able to provide parking, on-premises, for four additional people plus myself, yes. The question that you brought up about loading and unloading, I think refers to my neighbor, where we share the drive and the only reason that I can think of that he came up with that as a possibility is because I do know that - we have an on-going thing because we share the drive where he operates a business already and his customers regularly stop for five minutes just to run in - and it's one of the things about having a shared drive, I live with it - I don't really expect it to be a situation - especially since he is only there from eight thirty to four thirty. Most of the people who will be occupying the bed and breakfast would be almost exactly the opposite schedule from the schedule of his business, so if anything, I would anticipate that there might be a problem with the four people that might be using the driveway at any one time, as a result of my bed and breakfast - having problems with the quite large number of people that he has running in and out of his establishment. So I don't anticipate it as a problem for him. MR. SIEVERDING: Have you discussed your proposal with him? PAGE 56 BZA MINUTES - 11/9/87 MR. DALEY: After I read his letter, I called three times, actually in the past three days since I found out about it and he was not available at any time and never returned my calls so I haven't spoken to him but I had intended to. of course, he could be thinking that I am calling to complain that he had somebody parked in our driveway, too, so he doesn't know why I was calling. CHAIRMAN TOMLAN: Well I just refer to the last line of his letter: "We feel this does not bode well for the future conduct that may impinge. . . " I kind of see trouble brewing on the horizon. MR. WEAVER: Well anything that "bodes" is bad. MR. DALEY: I have a letter from a previous - I didn't want to bring all of this up because it is one of the things about having a shared drive - you know, sort of the cross to bear when you have a shared drive - but this man has been a problem, both to the previous owners - I got warnings about him when I first bought the place and then while I was out of state for three years I rented it to - or actually allowed a friend of mine to live there and I have a letter from her stating the problems that she has had previously with the same person. So it sort of - but it's more that - that's why I say I think what he is projecting is that the same kind of thing that he now does to me, I will then do to him. CHAIRMAN TOMLAN: Further questions from members of the Board? MR. SIEVERDING: A clarification on the parking. We are talking about a requirement of five spaces? MR. DALEY: Yes. MR. SIEVERDING: Two of those would be in the garage, two would be in that space in front of the apron in front of the garage? PAGE 57 BZA MINUTES - 11/9/87 MR. DALEY: No. One would be. . . MR. SIEVERDING: All the others would be in the back yard? MR. DALEY: Yes. Thank you. CHAIRMAN TOMLAN: Is there anyone else who would like to speak in favor of granting this variance? [no one] Is there anyone who would like to speak in opposition? [no one] I will entertain motions or questions or comments or. . . PAGE 58 BZA MINUTES - 11/9/87 DECISION ON APPEAL NUMBER 1798 FOR 218 SOUTH ALBANY STREET The Board of Zoning Appeals considered the request of Joseph Daley for an area variance to permit the use of a portion of the two-family dwelling at 218 South Albany Street for a Bed and Breakfast operation. the decision of the Board was as follows: MR. SIEVERDING: I move that the Board grant the area variance requested in Appeal Number 1798. MR. WEAVER: I second the motion. PROPOSED FINDINGS OF FACT: 1. The proposed use is allowed in this district. 2 . The proposed use will not - given that there is no external change to the building - will not exacerbate any of the existing deficiencies. 3 . The appellant states and the site plan seems to support that he has sufficient space on-site to provide the required five (5) spaces for parking. 4. The exception observes the spirit of the Ordinance and will not change the character of the district. VOTE: 6 YES; 0 NO AREA VARIANCE GRANTED PAGE 59 BZA MINUTES - 11/9/87 SECRETARY HOARD: The next appeal is APPEAL NUMBER 1799 FOR 522 WEST SENECA STREET: Appeal of John A. Ward for an area variance for deficient setbacks for the front yard and one side yard under Section 30.25, Columns 11 and 13 of the Zoning Ordinance, to permit the conversion of the single-family dwelling at 522 West Seneca Street to a two-family dwelling. The property is located in an R-3b (Residential, multiple dwellings) Use District in which the proposed use is permitted; however under Section 30. 57 the appellant must first obtain an area variance for the listed deficiencies before a building permit or Certificate of Occupancy can be issued for the proposed conversion. CHAIRMAN TOMLAN: Good evening. You know the procedure. MR. WARD: John Ward and I am appearing on behalf of the owner. I 'm not the owner of the property, I 'm the appellant. The owner of the estate is the Estate of Edmund Clynes, the Executor is James J. Clynes, Jr. who appeared here earlier this evening. The property is a single-family dwelling. We wish to change it to a two-family dwelling. The side yard and the front yard setbacks - the deficiencies were created many years ago, as I 've indicated in my application. From the chain of title the lot lines were established before the turn of the century - the structures have been in their present locations for over a century. CHAIRMAN TOMLAN: Questions from members of the Board? MS. JOHNSON: So the interior of the building is already set up for two-family? PAGE 60 BZA MINUTES - 11/9/87 MR. WARD: No, it will be changed for two family. It has been a single-family residence. CHAIRMAN TOMLAN: Stewart do you want to dream up a question? MR. SCHWAB: No. Is the drive useable or can it be used? MR. WARD: Yes it is useable and it will continue to be used. MR. SCHWAB: The other parts on the adjoining property. . . MR. WARD: Yes. Which is the next appeal. MR. SCHWAB: All right. CHAIRMAN TOMLAN: Why don't you just sit there for a minute and I 'll ask and see if anybody else wants to speak in favor or against. Is there anyone else out there who would like to speak in favor of granting this area variance? [no one] Is there anyone who would like to speak in opposition? [no one] Then we can have a motion - that way John doesn't have to get up and sit down again. PAGE 61 BZA MINUTES - 11/9/87 DECISION ON APPEAL NUMBER 1799 FOR 522 WEST SENECA STREET The Board of Zoning Appeals considered the request of John Ward for an area variance to permit the conversion of the single-family dwelling at 522 West Seneca Street to a two-family dwelling. The decision of the Board was as follows: MR. SIEVERDING: I move that the Board grant the area variance requested in Appeal Number 1799. MR. WEAVER: I second the motion. PROPOSED FINDINGS OF FACT: 1. There are practical difficulties related to meeting the requirements of the Ordinance in that both deficiencies are pre-existing. It was pointed out in the application that they date back to 1895. 2 . The proposed conversion of the property will not exacerbate those conditions. 3. The proposed variance observes the spirit of the Ordinance and is consistent with the character of the district. VOTE: 6 YES; 0 NO AREA VARIANCE GRANTED PAGE 62 BZA MINUTES - 11/9/ SECRETARY HOARD: The next appeal is APPEAL NUMBER 1800 FOR 526 WEST SENECA STREET: Appeal of John A. Ward for an area variance for deficient setbacks for the front yard and one side yard under Section 30.25, Columns 11 and 13 of the Zoning Ordinance, to permit the conversion of the single-family dwelling at 526 West Seneca Street to a two-family dwelling. The property is located in an R-3b (Residential, multiple dwellings) Use District in which the proposed use is permitted; however under Section 30. 57 the appellant must first obtain an area variance for the listed deficiencies before a building permit or Certificate of Occupancy can be issued for the proposed conversion. MR. WARD: I wish to comment - my comments as previously except that in the appeal, this is to convert from a two-family to a four-family. Apparently the wording has been picked up from Appeal 1799 to 1800. It is presently a two-family dwelling and I wish to make it a four-family dwelling, which is also a permitted use. SECRETARY HOARD: I was trying to save some time with my word processor. CHAIRMAN TOMLAN: That's what it was. And the public notices went out this way too? SECRETARY HOARD: Yes. CHAIRMAN TOMLAN: They went out as two-family, not as four-family. Questions from members of the Board? MR. SCHWAB: Where are the four parking spaces? PAGE 63 BZA MINUTES - 11/9//8'$ 97 MR. WARD: The spaces can be along the side of the house, if you look at the survey map, there is also a barn which has a capability of holding two cars and, as you look at it, to the left of the barn, there is a space for however many cars will fit into that, depending on their size. Actually we could probably park a dozen or more cars on the premises and still have a grass side lawn. CHAIRMAN TOMLAN: Is the gravel drive that now horseshoes around and comes in to this, is that somehow or another - again, an easement or a condition in the deed or is it purely fictitious? MR. WARD: No it is not. This property has been in the Clynes' family for a number of years - been under the same ownership for a number of years. CHAIRMAN TOMLAN: Well I was just thinking, with - kind of following up on Stewart's question as to where the parking would be designated - to the degree that we are not providing difficulty, if, in fact the two lots are separate. MR. WARD: There is plenty of parking on either lot - that is for each structure. MR. SIEVERDING: I think the question is one of access - how do you get to those parking spaces. CHAIRMAN TOMLAN: Access is the question, right. MR. WARD: Through the driveway and while it does not show on the survey map, there is actually a gravel portion going to the barn and slightly to the left - there is existing - it shows signs of existing parking area. The property has not been used extensively for a number of years so that the vehicular traffic there has been minimal - especially for parking purposes. PAGE 64 BZA MINUTES - 11/9/ MR. SIEWRDING: But the idea would be to use that one way to the horseshoe and extend it out to the back. . . MR. WARD: To the left of the barn area and to the left of the barn area [sic] and there is ample space behind the premises if additional parking is needed but for four apartments, I don't envision needing more than six or eight spaces, even if - the apartments aren't going to be that big, they are going to be basically one-bedroom apartments. I would envision one car maximum per apartment and there certainly substantial parking for those times when people have guests for dinner or for overnight. MS. JOHNSON: I guess the issue is, if the parcels get separated with two different owners, would there be a driveway issue? MR. WARD: No, it is not because the driveway is separate. 522 has a driveway that enters between the church and the building and has access to the two garage units and the area to the right is a graveled area right now. And 526 - you still have this driveway which is on this parcel - it does not require any kind of a right-of-way - straight back to the barn for two parking spaces and off to the left there is additional parking - I don't mean to exclude you down here - and then there would be parking, if necessary, behind the structure. There is ample room and the driveway - if these parcels were ever separated, there is no need for any right-of-way - you could just take and fence that line right there and break it and still have access to all of the parking that would be available for each structure separately. CHAIRMAN TOMLAN: Further questions? [none] Thank you John. Is there anyone else who would like to speak in favor of granting this PAGE 65 BZA MINUTES - 11191A S1 area variance? [no one] Is there anyone who would like to speak in opposition? [no one] That being the case, I 'll entertain a motion. DECISION ON APPEAL NUMBER 1800 FOR 526 WEST SENECA STREET The Board of Zoning Appeals considered the request of John Ward for an area variance to permit the conversion of the two-family dwelling at 526 West Seneca Street to a four-family dwelling. The decision of the Board was as follows: MR. OAKILEY: I move that the Board grant the area variance requested in Appeal Number 1800. MS. JOHNSON: I second the motion. PROPOSED FINDINGS OF FACT: 1. The proposed use is allowed in the R-3b use district and would in no way exacerbate the existing deficiencies. 2. The existing deficiencies would be very difficult to correct short of demolition or moving of the building. VOTE: 6 YES; 0 NO AREA VARIANCE GRANTED PAGE 66 BZA MINUTES - 11/9/,88 _l SECRETARY HOARD: The next appeal is APPEAL NUMBER 1801 FOR 613 EAST STATE STREET: Appeal of Charles J. Everhart for an area variance for deficient off-street parking, deficient lot size, and deficient setbacks for the front yard and one side yard under Section 30.25, Columns 4, 6, 11 and 13 of the Zoning Ordinance, to permit the conversion of one of the apartments in the two-family dwelling at 613 East State Street from a three-bedroom apartment to a four-bedroom apartment. The property is located in an R-3a (Residential, multiple dwellings) Use District in which the proposed use is permitted; however under Section 30. 57 the appellant must first obtain an area variance for the listed deficiencies before a building permit or Certificate of Occupancy can be issued for the proposed conversion. CHAIRMAN TOMLAN: Good evening. Again, if you would begin by identifying yourself. MR. HINES: My name is Bob Hines and I 'm the attorney for Mr. Everhart. MR. EVERHART: My name is Charles Everhart and I 'm the owner of the property. MR. HINES: This building at 613 East State Street was built sometime between 1904 and 1929, I gathered that from looking at the Sandborn maps of those dates - it didn't appear on the first one, it does appear on the second one. The area, and I took the liberty of doing a little sketch, this is State Street on your map. The PAGE 67 BZA MINUTES - 11/9/,Ad v l back does not show on the survey for some reason and I was reluctant to alter the surveyor's drawing, but in any event - on the back of the house, towards the south there apparently was a porch - a double-deck porch, when it was first built - from looking at the Sandborn map - it says "open", which was enclosed at some point many, many years ago, into a large room, which had interior measurements eighteen by eleven and one-half or twelve feet. Some time earlier than when Ron Schmitt owned it, as I asked him - he is the person from whom Mr. Everhart bought it - he was here earlier this evening and I reconfirmed it - a free-standing wall was placed dividing this area, both on the first and second floors. Now by free-standing I simply mean that some sort of building material with book cases supporting it, separating this large area into two smaller bedrooms, each of which had their own doorways, one from the kitchen and one from a hallway. I presume it was done so the students who were living in there had some privacy and a little more quiet. In any event, Mr. Everhart bought it and those walls existed in substantially their present state and we received a building certificate of compliance - now without getting into detail, I 'm not sure whether that - the free-standing wall is a structure not under the zoning law - but what Mr. Everhart would like to do and I think Mr. Schmitt before him had asked for permission to do - was to remove this free-standing wall and put a stud wall with sheetrock in this area. It doesn't support anything but simply gives a little better security and a little nicer appearance to the rooms and gives a little more privacy and quiet to the parties. The deficiencies which Mr. Hoard pointed out are PAGE 68 BZA MINUTES - 11/9/§,8 �� lot size which has to be six thousand - it isn't. According to the surveyor it is four thousand two hundred and twenty-five feet. Thirty-five percent of that - we are very close to it, I don't know if we are deficient but if we are it isn't by very much. Our front setback seems to be adequate, I 'm not sure. The map shows what it is. The side yard on one side is all right, on the second side it is deficient by a couple of feet. A significant deficiency exists in area only on the size of the lot. If we have four bedrooms in each apartment, which is what is sought - it requires four parking places. Am I right Tom? SECRETARY HOARD: Yes. MR. HINES: And we only have two, which are on this driveway, right along here. Now there is a lot of room for parking out in back but the only access is over a private paved drive which belongs to the neighbor next south and, according to Mr. Schmitt, he has not been willing to allow other people to use it so that remains fairly inaccessible because at the end of this drive it pitches down fairly steeply and is not - you really can't do very much about getting around back there but it is very accessible if you come in through that other way, which is apparently not legally permitted. So we are asking for permission to install what we will call a permanent wall in the place of the free-standing wall, which has been there for a number of years, without changing any other characterics of the house or adding any more people to it - it has been used for the - when we bought it, I think the one unit contained five tenants and one unit, four. We've been renting to four on this floor and four on the upper floor, which has PAGE 69 BZA MINUTES - 11/91?e S7 significantly the same space. Let me see, bedroom, bedroom and then this back bedroom consititute the four with a large living room, a dining area, a rather large kitchen and a side exit through a walkway. The only comment I can make as to why the area was divided - not having been around at the time it was done - is the reason I stated - not to add more people, because I think two people would otherwise occupy it - it is a large room, almost twenty feet long by eleven or so - twelve feet - to give each of the students, or occupants, a little more privacy and security than they would have and because of the way the house was built there are separate entrances to each of them and they all have windows so it is a nice light area. I don't know what Mr. Conrad put on the file when he inspected it last but apparently when Mr. Everhart went in to get his building permit it was ruled that this was a structural alteration which, in an area where we have some deficiencies, required your approval. SECRETARY HOARD: That's right. MS. JOHNSON; So that's true for both floors? MR. HINES: Yes. MS. JOHNSON: So you are really creating two, four-bedroom apartments, not one? MR. HINES: Yes. Actually, I think our original intent was to apply for permission to replace the standing walls in both areas, but the way the notice went out, it looks like just the one. I suppose we' ll accept whatever your ruling is, but the intention when we came in was - they are very similar floor plans and actually right now they do have those - for lack of a better PAGE 70 BZA MINUTES - 11191V IFT expression - free-standing walls - actually they look pretty solid, when you walk in and look at them but the thickness of the building materials. . . not sound proof. CHAIRMAN TOMLAN: So what you are saying then, in essence, that you are seeking to permit the conversion of both apartments in the dwelling from three-bedroom apartments to four-bedroom apartments? MS. JOHNSON: That's what it says on the worksheet. MR. EVERHART: Yes. MR. OAKLEY: That is, in fact, the way the worksheet reads. CHAIRMAN TOMLAN: The worksheet does, but not the notice. MR. HINES: I don't know if anybody was mislead, but for what it' s worth - that is what we are asking for. MR. SIEVERDING: Is just to convert both? MR. HINES: Yes. MR. SIEVERDING: How does that relate to the notice that went out? MR. OAKLEY: It says to convert one. . . MR. SIEVERDING: Yes, I know, but what do we do in that case, can we actually go ahead and consider both or just consider one or. . . CHAIRMAN TOMLAN: Well I 'm a little uneasy with it myself, I must say. In the previous instance, I guess I wasn't as concerned because there was no deficiency created by going from, for example, the two apartments to the four apartments in the last case, Wards. In this instance, obviously, there is a deficiency that has to be considered. . . MR. SIEVERDING: Namely the parking deficiency? CHAIRMAN TOMLAN: Yes, the parking deficiency. I 'm a little - I think we will discuss this afterwards, but I would be interested in PAGE 71 BZA MINUTES - 11/9/,$,619 7 hearing other people's comments on the matter - that is, Board Member's comments. MR. SCHWAB: Well perhaps as a way of correcting - we do have a note from the Alderman suggesting renting or leasing additional parking places. Have you thought of that at all? MR. HINES: Well we don't know exactly where - yes, we did think about it. East Hill Coop has area but I don't think they are going to rent us any spaces. And then you get down to Ithacare, I don't know where you are going to rent them, very close. The best approach would be to talk - I went up and looked over the area behind - where you see on the map - the drive - and contemplating going to talk to the man, who obviously received our notice but I didn't talk with him about having the use of his driveway. . . based on what Ron said, I don't think he would say yes right away. MR. SIEVERDING: This is the asphalt drive on the survey? MR. HINES: Yes it is. It looks like a well maintained driveway that goes right from Quarry through to Ferris and it looks - I went down to the City Sewer and Water Department because I thought possibly there was a utility easement because the drains do run in that general direction but that isn't - that is his private drive. Actually for the number of people there, if we retain three bedrooms, the two parking places is adequate - although I don't really think practically it is adequate but legally it is adequate, so by going to the extra bedroom, we bump up the parking requirement. I suppose to make your job easier - if we would go for the one floor at this time, we certainly would get the sense of PAGE 72 BZA MINUTES - 11/9/0,9 bi the Board as to what you thought. I don't want to come back again without any. . . . MS. JOHNSON: So would the parking be two spaces or three? MR. OAKLEY: Tom, it looked like you've argued that the parking should be four in any circumstance? SECRETARY HOARD: Yes. Where there are four people or four bedrooms, the requirement is two per unit. MR. WEAVER: Well on the question of what you asked for, looking at the appeal - the appeal itself and not the notice - that doesn't seem to be unclear - it talks about each. . . CHAIRMAN TOMLAN: Yes, it talks about each living unit (unintelligible) . . . MR. WEAVER: A large bedroom in each unit. . . MR. OAKLEY: Yes, the actual appeal seems clear enough. MR. WEAVER: Well the question is would the affect of improving the accuracy of the public notice have any effect - it seems to me that it is already admission of need for off-street parking as the notice was put out and it doesn't result in a response from the neighborhood - it would just seem to be an unnecessary exercise to make this into another application and another hearing - the application would remain the same. . . CHAIRMAN TOMLAN: But we did get comment from the Alderperson in this particular instance - about parking - so it did (unintelligible) MR. WEAVER: Well but does that mean that - two alderman? PAGE 73 BZA MINUTES - 11/9/94 ��7 CHAIRMAN TOMLAN: That's what I am wondering - well we may have - you never can tell, particularly in that neck of the woods. We could have had four alderpeople, you know. MR. WEAVER: And some elected. . . CHAIRMAN TOMLAN: That's right, some elected. . . never can tell about these things, Charles. MR. SCHWAB: Well the one suggestion was to rent space from Ithacare, is that practical at all? MR. HINES: Well it is certainly close - I haven't approached them. I don't know what their feelings are about creating additional traffic down there - the Valentine Place thing is going on now. I haven't approached them, I guess that's the short answer. MR. OAKLEY: I think it is rather difficult to grant an appeal - I should think they could be approached anyway, I 'm not sure that they. . . MR. HINES: I don't mind approaching them, I just wouldn't want to hold out any (unintelligible) at this time. CHAIRMAN TOMLAN: In some instances we've put forward a conditional approval. MR. OAKLEY: Well, okay. . . CHAIRMAN TOMLAN: Contingent upon. . . I 'm not suggesting that necessarily, I 'm only merely reflecting upon what has occurred in the past. SECRETARY HOARD: The notice to the affected parties does talk about two bedrooms. . . MR. HINES: That's the one we sent out, yes. MR. SIEVERDING: It's just the public notice that's. . . PAGE 74 BZA MINUTES - 11/9/8Z'S_� CHAIRMAN TOMLAN: Okay. Further questions of the appellant in this instance, from the Board about the specifics? MR. WEAVER: Question about the specifics - do nine by eleven bedrooms meet the minimum standards for a bedroom? SECRETARY HOARD: Yes. Eighty feet is the minimum. MR. SIEVERDING: If this particular request were denied, could they continue using the property the way it is presently being used, with this makeshift partition between - dividing that rear room into two sections? SECRETARY HOARD: Yes, the problem here is that they have some tenants who don't like this wobbly partition and who thought they were renting a four-bedroom apartment and actually it is a three-bedroom with one (unintelligible) . We cannot call it two bedrooms - it's a one-bedroom with a wobbly partition. . . MR. OAKLEY: You also can't tell them to take it down. MR. SCHWAB: But there is nothing improper. . . MR. SIEVERDING: Exactly. The space is large enough for it to be legally occupied by two individuals? SECRETARY HOARD: Yes. MR. OAKLEY: And it would create two spaces, each of which was legally occupied only by one person. MR. WEAVER: Or one common space - it could be legally by two. . MR. OAKLEY: Okay. CHAIRMAN TOMLAN: But obviously there is a financial difference, I would suppose, by virtue of how it is rented. MR. OAKLEY: I would suspect that that is true. PAGE 75 BZA MINUTES - 11/9/$8 V CHAIRMAN TOMLAN: Further questions of the appellant? [none] Thank you gentlemen. Is there anyone else who would like to speak in favor of granting this area variance? [no one] Is there anyone who would like to speak in opposition? MS. SCHULER: It is not in opposition, just a question. . . CHAIRMAN TOMLAN: You are going to have to come forward Nancy, because we can't record you from that far back. You will have to begin by identifying yourself. MS. SCHULER: I 'm Nancy Schuler, I live at 110 Ferris Place. Just a question as to - first of all, in the notice that the neighbors did get, it just talked about the change in one apartment, I believe. I don't have it with me - but that's not what I - my question - one of information really was the number of people - the maximum number of people that might live at that property - not when this particular owner owns the property but at some point in the future, if this conversion takes place. . . SECRETARY HOARD: It does not change. MS. SCHULER: It does not change? You answered the question about the square footage of the rooms - that was my concern. CHAIRMAN TOMLAN: Yes. MS. SCHULER: Okay, so there can be no more than eight people in that building? SECRETARY HOARD: Right. CHAIRMAN TOMLAN: Right. And the discussion is clear with respect to - it is not clear in the public notice but it is clear in the description. PAGE 76 BZA MINUTES - 11/9/8 (gl MS. SCHULER: Okay, so the question I had was the maximum number of people living there. CHAIRMAN TOMLAN: Okay? Is there anyone else who has either a comment, question, complaint or otherwise point of view on this matter? [No one] That being the case, I will be pleased to hear a motion. PAGE 77 BZA MINUTES - 11/9184 S� DISCUSSION ON APPEAL NUMBER 1801 FOR 613 EAST STATE STREET MR. OAKLEY: Could I actually ask a question first? The parking issue. We aren't really exacerbating the situation. There has been a lot of discussion about whether we should make this conditional on to coming into conformity, to some degree, with the Ordinance and admittedly my suspicion is that parking in Ithacare will be not heavily used but I could be entirely wrong about that. CHAIRMAN TOMLAN: Well, don't we have on the books something that says a radius of five hundred feet or something of that sort? SECRETARY HOARD: Well we have a "new" something on the books. CHAIRMAN TOMLAN: That's what I thought, I wanted to hear about the "new" something on the books. We must keep track of our - I don't mean to prolong the discussion but I think its. . . MR. SIEVERDING: It is sort of related, I think, the question about whether something is available in Ithacare, is whether something is available on the site, if it could be accessed. . apparently the approach hasn't been made. It seems to me that would be an appropriate way to go. MR. WEAVER: Well to get back out of the designing business and making a conditional approval - conditioned upon meeting the parking requirements for that number of bedrooms and let them get on-site or off-site. . . MR. SIEVERDING: I wouldn't - I was just pointing out that there are - in addition to Ithacare there is an alternative available that hasn't been explored - I wouldn't mean to suggest that this particular one is the only one they should go after. CHAIRMAN TOMLAN: Tom, do you want to enlighten us? PAGE 78 BZA MINUTES - 11191V�_q SECRETARY HOARD: Off-site parking for residential uses may be provided within one thousand feet along public pedestrian thoroughfares to measure from property line to property line. MR. SIEVERDING: I don't want any long discussions either but when we were talking about the appeal at the corner of College and Dryden - wasn't it seven-hundred fifty feet. . . SECRETARY HOARD: That was for the commercial - he needed some commercial and some residential. . . MR. SIEVERDING: Seven fifty for commercial there and a thousand for residential. . . CHAIRMAN TOMLAN: Would you guess Ithacare is within a thousand feet? SECRETARY HOARD: They have to be in the R-3 part, though - can't be in the P-1 part. Might be a little harder. CHAIRMAN TOMLAN: Are we coming any closer to a motion? MR. WEAVER: One more question. A denial would retain the status quo - we'd have a potentially large room per floor. . . CHAIRMAN TOMLAN: Is that bad? MR. WEAVER: No I don't think so at all. What would be served here now would be to create two nine by eleven bedrooms. . . CHAIRMAN TOMLAN: That's true. . . MR. WEAVER: Which are not a requirement of ownership or the reasonable return on existing property as a practical difficulty is to say that the present tenants or the present owner would like it, is not exactly a practical difficulty. In my mind, I just am not - if, in fact, it is legal to occupy it the way it is, denial would not affect that and the approval established for pretty small PAGE 79 BZA MINUTES - 11/9/ S'7 bedrooms - to what avail - I can't see that it would - that that would probably permanently impact upon the off-street parking requirements for the neighborhood - where leaving it as it is holds hope that this owner or others will decide to use it in a less intense fashion but maybe I 'm confused on the issue. CHAIRMAN TOMLAN: Does anybody else down there want to add to - perhaps - the confusion? MS. JOHNSON: I agree with Charlie - I 'm in favor of keeping the potential for a less intense use in the future, rather then setting in stone the sheetrock, or whatever it is. CHAIRMAN TOMLAN: It is only sheetrock - it's not stone. MR. SCHWAB: The only thing - one option would be to deny - another option, of course, is to conditionally grant - with the possibility that they can get actually, on-site parking, which would not add to the problem, either - and if that's what the owner wants to do, that might be an option - let him go try, and, at least than, if he can't get it, and he cares to come back - well that's additional evidence that he it couldn't be gotten. That would be another way of thinking about it. CHAIRMAN TOMLAN: Let me ask him. . . MR. SIEVERDING: It's another one of these - do we want to get in the design business? Here I think we are getting into the design business when we say a nine by eleven room - is there or isn't there an appropriate plan, when in fact - the Zoning Ordinance. . . MR. WEAVER: It's appropriate. . . MR. SIEVERDING: Yes. And I think our opportunity here is - if it's allowed in the zoning, then let's do it in a way that it at PAGE 80 BZA MINUTES - 11/9/P'�7 least answers the - what appears to be neighborhood concern is the parking issue. MR. WEAVER: I 'm not trying to be devious. I would vote in favor of the conditional granting. MR. SIEVERDING: That's the approach then that I 'm willing to take. CHAIRMAN TOMLAN: The question remains in that instance - what - and I would come back to both Stewart and Herman - what is the practical difficulty in that instance - which is Charlie's original question. Even with the conditional granting, what is the practical difficulty? MR. SIEVERDING: Well his deficiencies are lot area, front yard and side yard. . . CHAIRMAN TOMLAN: That's right. MR. SCHWAB: The practical difficulty - you can't make two four-bedroom apartments without shrinking the house. CHAIRMAN TOMLAN: Well that's nice, but it's - to my mind - self imposed. MR. WEAVER: It's pre-existing. MR. SCHWAB: This is an old house. . . CHAIRMAN TOMLAN: All right - I 'm just trying to draw out some findings of fact here. MR. SIEVERDING: I think when we retain (unintelligible) cases where you have a use that is allowed by zoning and when there are front, side and rear yard deficiencies that are pre-existing and the only way to solve them is by demolishing or somehow or other reconfiguring the building - we grant those types of variances. PAGE 81 BZA MINUTES - 11/9/8,8 `6� CHAIRMAN TOMLAN: Well that's what I want to hear. Recast that as a motion. . DECISION ON APPEAL NUMBER 1801 FOR 613 EAST STATE STREET The Board of Zoning Appeals considered the request of Charles J. Everhart for an area variance to permit the conversion of each apartment in the two-family dwelling located at 613 East State Street from three-bedroom apartments to four-bedroom apartments. The decision of the Board was as follows: MR. SIEVERDING: I move that the Board grant the area variance requested in Appeal Number 1801 with the condition that the appellant provide two (2) additional parking spaces either on premises or within 1,000 feet of the property. MR. OAKLEY: I second the motion. PROPOSED FINDING OF FACT: 1. There are practical difficulties related to meeting the lot area, front yard and side yard requirements in that these are pre-existing conditions and the only practical way to resolve those deficiencies would be by demolishing or reconfiguring the building. VOTE: 5 YES; 1 NO GRANTED W/CONDITION PAGE 82 BZA MINUTES - 11/9/87 SECRETARY HOARD: The next appeal is APPEAL NUMBER 1802 FOR 124 SENECA WAY: Appeal of Nan T. True for an area variance for a deficient rear yard setback under Section 30.25, Column 14 of the Zoning Ordinance, to permit the conversion of two second-floor apartments to additional office space, and construction of a two-story addition to the side of the existing building at 124 Seneca Way (True Insurance) , for an additional stairway. The property is located in a B-4 (Business) Use District in which the proposed use is permitted; however under Sections 30.49 and 30. 57 of the Zoning Ordinance the appellants must first obtain an area variance for the deficient rear yard before a building permit or Certificate of Occupancy can be issued for the proposed work. CHAIRMAN TOMLAN: Greetings. If you would begin as usual. MR. SHARMA: Jagat Sharma, Architect, with offices at 312 East Seneca Street. As the product description is in front of everybody, we applied for an area variance back in July 6, 1987 and received a variance for adding a one-story addition on the True Insurance building and we went into the bidding and awarding the contract and the owner started looking at all the requirements for - deposit and concluded that they need some additional space for the insurance office and to do that they decided to take over two second floor apartments, which is a studio and a two-bedroom and convert them into offices for their expanding business - I think life insurance - and to provide a second means of egress and a PAGE 83 BZA MINUTES - 11/9/87 common (unintelligible) between the parking lot along Seneca Way we want to build a two-story stair dowel. The stair dowel - as you can see from the rendering - we have windows and (unintelligible) at least for the fact that the stair dowel has to align with the east end of the property which also creates a deficient rear area as you can see on the site plan. We have a one point two feet and required is ten and a half feet. We think that this particular area of the lot - with the hill coming down and the retaining wall and being in the corner - has no 'really particular use for anything else than for the stair dowel and it reduces the amount of new work that will be required to provide a second means of egress and a connection from the parking to the second floor insurance office. Based on these facts, we request that the variance be granted. We do not have any other deficiencies - we have the required parking. One additional (unintelligible) will be to increase the amount of work for the contractor so the bids will come in line with what they want to spend. CHAIRMAN TOMLAN: I can't help but ask the question, why such a piecemeal approach - I mean, it just seems as though you are kind of sticking on a piece here and a piece there - it is not really germaine to the case but it just. . . MR. SHARM: Well design wise, if you look at it, I think we could probably put a small - I mean, right behind this line (pointing to plans] there is a possibility of an existing window and a door - possibility of using that - a new door and exitway. We could put just a small addition here which we thought would look uglier and would create a very small, ugly, trash kind of a thing between the PAGE 84 BZA MINUTES - 11/9/87 old beat up retaining wall and the new building so we are kind of expanding it to tie it together so it has a natural end to the way the building was previously designed. We are trying to take a similar - bring up the stone wall in the front and put more glass and give it character of an insurance office - kind of a luxury arrangement. CHAIRMAN TOMLAN: Questions from members of the Board? MR. OAKLEY: Are you going to install a - you are talking about this as an entrance but clearly your lobby is - in the previous addition. . . MR. SHARMA: Yes, they are going to have an independent life insurance department on the second floor but under the same operation but the entire department is on the second floor. MR. SIEVERDING: Just one question, the addition that would be made is about sixteen feet? MR. SHARMA: Sixteen by twenty. MR. SIEVERDING: Sixteen by twenty - so it is extending the deficiency, so to speak? MR. SHARMA: Yes. I 'd like to find out - you know - the rear corner will take some redoing - in terms of an old retaining wall and sloping ground and things and I think this new addition will really tie the building together and bring the thing. . . MR. WEAVER: Do you think we need a buttress on the stone wall? MR. SHARMA: Yes, it will help everything. CHAIRMAN TOMLAN: Any further questions out there? [none] Thank you. Is there anyone else who would like to speak in favor of PAGE 85 BZA MINUTES - 11/9/87 granting this variance? [no one] Is there anyone who is opposed? [no one] I guess we can move along. PAGE 86 BZA MINUTES - 11/9/87 DECISION ON APPEAL NUMBER 1802 FOR 124 SENECA WAY The Board of Zoning Appeals considered the request of Nan T. True for an area variance to permit the conversion of two second-floor apartments to additional office space, and construction of a two-story addition to the side of the existing building at 124 Seneca Way for an additional stairway. The decision of the Board was as follows: MR. WEAVER: I move that the Board grant the area variance requested in Appeal Number 1802 . MR. SIEVERDING: I second the motion. PROPOSED FINDINGS OF FACT: 1. The only deficiency is a rear yard setback. In this particular site the rapid change in grade immediately adjacent to that rear line means that it will have no effect on the use of adjacent properties. 2 . The addition will improve the utility of the building. 3. The addition will not result in a substantial change or detriment to any adjoining property. VOTE: 6 YES; 0 NO AREA VARIANCE GRANTED s PAGE 87 BZA MINUTES - 11/9/87 SECRETARY HOARD: The last appeal to be heard tonight is APPEAL NUMBER 11-1-87 FOR 600 SOUTH MEADOW STREET: Appeal of Wegman's Enterprises for sign variances under Section 34.6B (Table 34. 6B1) of the Sign Ordinance to permit the installation of a wall sign at 600 South Meadow Street (Wegman's Food Pharmacy) that exceeds the maximum area permitted by the Sign Ordinance. Proposed is a sign on the face of the store that totals 225 square feet where 150 square feet is the maximum area permitted. The property is located in a B-5 (Business) Use District in which the proposed use is permitted. The appellant was denied a previous appeal by the Board at its October 5, 1987 meeting, and is returning with this appeal for a smaller sign. CHAIRMAN TOMLAN: Welcome once again. Please begin by identifying yourself. MR. O'NEIL: Ken O'Neil, Professional Engineer with Wegman Enterprises, offices at 1500 Brooks Avenue, Rochester, New York. MR. PORTER: Russ Porter, Wegman's Enterprises, 1500 Brooks Avenue, Rochester, New York. CHAIRMAN TOMLAN: So how is this different from the last one? MR. O'NEIL: I guess probably the easiest way to explain this, as Mr. Hoard indicated, we were before you last month. I 'd like to just briefly - before we review what the original application was - that was before you last month - is to just quickly review that we are in a B-5 zoning district - shopping center facility - the existing ordinance indicates that we are allowed one hundred and PAGE 88 BZA MINUTES - 11/9/87 fifty square foot of maximum building signage based on a formula of one point five square feet per running foot of front building area. In addition to that a hundred fifty square feet of a free-standing sign allowing a total of three hundred square feet - total for the property itself. Now in our previous application that was before the Board last month, we had a total area signage of approximately four hundred and fifteen square feet. That included approximately four hundred square feet of building mounted sign, which is indicated on the rendering that we have shown here tonight - which would indicate "WEGMAN'S" with FOOD, PHARMACY located on the canopy. In addition to that we were requesting fifteen square feet for a free-standing sign to be located out in the main entrance way, which would indicate "OPEN TWENTY-FOUR HOURS A DAY". In addition to those two variances we were also requesting variances for the Enter and Exit signs to be allowed up to six square feet for the construction of those signs from the allowable of four square feet. The application that we have before the Board tonight - we believe has been dramatically reduced and we have tried to reduce it in such a way that hopefully - we've tried to interpret what the Board has told us and come up with a solution that hopefully is acceptable to all parties. As we indicated in the previous application, we felt the need for FOOD - PHARMACY on the sign is imperative and also OPEN TWENTY-FOUR HOUR. The OPEN TWENTY-FOUR HOUR situation for the store is not a common occurrence within the City area and it is not a normal type of situation that people are used to encountering within Ithaca. We also feel that the need for the FOOD - PHARMACY and the indication of different PAGE 89 BZA MINUTES - 11/9/87 types of uses within the building is necessary because - again, the area is not used to the type of operation that we are proposing here with the Pharmacy included as well as several other departments within the store itself. So we feel it is absolutely necessary to identify the use of the building as well as the name of the owners of the building. However the Board - we seem to get the indication from the Board that they felt that the sign size was excessive. We did not feel that there was any way that we could substantially reduce the size of the sign and leave FOOD - PHARMACY on the main canopy of the front building wall and still be able to come in to an area that was closely in compliance with the ordinance itself. As you can see, the smallest size letters are in the FOOD AND PHARMACY and for those to be legible from a distance away - because of the setback of the building - they need to be the size that we had shown, so we opted to change the application to - first of all remove FOOD - PHARMACY from the building portion mounted sign and in addition, reduce by approximately thirty percent the size of the WEGMAN'S portion of the sign itself. It would then be mounted on the canopy. What that does is result in - well let me back up quickly - in order to offset the removal of the FOOD - PHARMACY portion or the informational portion of the sign, and the OPEN TWENTY-FOUR HOURS, which indicates the operations of the facility, we felt that we could move that to a free-standing sign out at the roadway, which would be smaller in size and still be legible, because, again, then the free-standing sign is up closer to the road, where it is more legible by the passing motorists. So, as a result we have a proposal before the Board PAGE 90 BZA MINUTES - 11/9/87 tonight which, first of all eliminates any request for variances to do with enter and exit signs. We are now in the process of building those signs and they will comply with the ordinance. We are requesting that the building portion or the WEGMAN'S portion of the sign - we be allowed to construct two hundred and twenty-five square feet of signage. Now that is in excess of the hundred and fifty that is allowed by the Ordinance. However, I would like to indicate that we feel that we are upholding the spirit of the Ordinance in that the Ordinance indicates that a user or a number of users within a shopping facility are allowed to have one point five square feet per running foot of building. If you were to take the square footage of two hundred and twenty-five square feet that we have on this proposed building, we have three hundred and forty running feet of front footage of the building - that converts back to point seven square feet, or just slightly over point seven square feet per running foot, so it is less than half of what is allowable under the Ordinance, although, again, because of the size - or the length of the number of letters involved in WEGMAN'S - it does convert to a larger than maximum allowable per the Ordinance. The free-standing sign that we are proposing - again, to off-set the - or to indicate the operation and the informational type of use of the building - we have depicted on a print that we have given to the Board the actual sign area itself, which is at the top of - the intention is to have a pole mounted sign, if any of the members are familiar with the shadow form material that we are building the front canopy on - or the front, canopy portion here of the building which has started to go up - we are looking just to PAGE 91 BZA MINUTES - 11/9/87 cover those posts with that type of material to make it more decorative and aesthetically pleasing for the public as they pass by. The actual sign itself is fifty square feet in size, which is - again approximately a hundred square feet less than what is allowed by the Ordinance. I think I would just like to reiterate again - as I think I did in the first appeal - we feel that we are much more comfortable as an organization and have a feeling that a building mounted sign is much more aesthetically pleasing than free-standing signs of this nature. We really would only have, I believe, two or three at most, in the total organization - only where they have been necessary. And that was part of the reasoning for our initial application with the size the way it was - so we've tried to accommodate what we feel the Board is trying to indicate to us - to reduce the signage to the greatest extent possible and we think that we can do that by providing a smaller free-standing sign which provides the information necessary out at the road with the reduced building mounted sign on the free face of the building. Again, we feel the practical difficulty that's created is that we are a large user - single user of a large facility. The building area is in excess or is approximately eighty thousand square feet, which is just under two acres in size - there are relatively few buildings in the area that even come close to that size. The frontage of the building and the way the Ordinance is written - because we are a single user - we are restricted to one sign in the hundred and fifty square foot of frontage. As I indicated before, if any one of about ten to fourteen different departments within the store could act as an independent business and if we were to PAGE 92 BZA MINUTES - 11/9/87 arrange those in such a fashion or be able to arrange those in such a fashion that we were to provide doorways on the front of the stores, for example, the Pharmacy, the Bakery, or things of that nature, each one of those departments - which could more than stand on its own as an independent business - would be allowed signage up to a hundred and fifty square feet. But, again, what we have tried to do as an organization, is to create the one-stop type of shopping - we've put everything internal, within the building itself, nothing different than a mall type of situation for the food market organization - so, because of those two factors and the restriction of a single user within the Ordinance, we feel that we are restricted in what we are allowed to put on the building. Again, going back, the Ordinance allows one point five square feet per running foot and our current application that is before you tonight utilizes less than point seven square feet per running foot of building area. Another large factor involved (unintelligible) the size of the sign is the setback of the building from the road. The building itself is setback in excess of five hundred feet from the highway, South Meadow Street, and approximately eighty to ninety feet farther back from the road than the existing plaza immediately to the south of us, which has the TOPS operation located within it. The size of the letters that we are proposing on the food markets are smaller in size than the size of the letters on the TOPS building, however, again, as we've discussed and I brought up at the previous hearing - we do have a larger number, or more letters, involved, which does inherently take up a larger amount of area. But again, the letter sizes - in comparison PAGE 93 BZA MINUTES - 11/9/87 to that building - are smaller. A major factor that we have considered is that - although it is not shown within this site plan - the building mounted sign itself is blocked for a substantial portion of the way - if you were headed south on South Meadow Street - coming in from the City area. You have the Super 8 Motel, which is located right on the corner of West Clinton, and then you have the Maguire Ford building in this location [pointing] with Clinton Avenue coming out from this area here. As you drive south down the street, the front. of the building is totally blocked until you get past the Super 8 building - you then have a short stretch in which you would get a clear view of the front canopy area of the building - you then pass again behind the Maguire Ford building and the property is blocked - and the signage is blocked. We've estimated that as you come down the road - down the highway itself - that there is an area of about a hundred to a hundred and fifty feet in which you have a clear view of the sign. Now traveling down the road at that speed, you only get a clear view of that sign from the time you come over the bridge until you get down past the Maguire Ford building immediately in front of the building for about four to five seconds, at the travelling speed on the roadway itself. So it is extremely limited. You have to drive by to actually see it - the signage itself will be totally blocked as you go by Super 8 - or as you come up through the Super 8 building and then you have the gap and then it is again entirely blocked across the Maguire Ford area. We feel that that is relatively important because - based on our projections, we feel that in excess of seventy-five percent of our total volume of traffic will be coming PAGE 94 BZA MINUTES - 11/9/87 in from that direction. As I indicated, again, the letter sizes are smaller than the letter sizes that are currently on the TOPS facade - we don't believe that we are creating any kind of detriment to the community area or anything within the immediate area - it is a highly commercial area with a lot of signage up and down the street itself and, again, because of our setback, we are so far back off the road that we feel it is not that detrimental at all to any of the adjacent. areas. We have, of course, commercial to the immediate south of us, we own additional property to the north of us, we then have West Clinton, an area that is - to the rear of that - becomes industrial and things of that nature. With the opposite side of the street being - for the most part, - commercial in nature. With regard to - I would like to make comment - I 'm not sure if the Board is aware of a letter that was received - or they should have received from the Planning Board in review of this application. CHAIRMAN TOMLAN: We did. I was going to ask you about that next. MR. O'NEIL: Okay. I would like to comment on that, prior to questions the Board may have. If you are to read the statement - we would like to just indicate that the night of that hearing we came down - the full Board did not hear it and we were not allowed to speak or make any comments with regards to it, so the comments that they are making are really being made without any input from our organization or anyone else externally, that I know of. But, if you read the recommendation - or the information which they indicate - the second paragraph indicates that Table 34. 6B1 of the Sign Ordinance clearly states that the maximum total area of the PAGE 95 BZA MINUTES - 11/9/87 signs for all businesses of this type in a B-5 zone is a hundred and fifty square feet. Wegman's request for two hundred and seventy-five square feet, two hundred and twenty-five on the building and fifty free-standing sign structure, almost doubles the maximum. This Committee feels this magnitude of difference is excessive. CHAIRMAN TOMLAN: We have slightly different letters but the intent is the same. MR. O'NEIL: Our memo is dated October 23rd. CHAIRMAN TOMLAN: We received an amended letter. MR. O'NEIL: They have not, provided us with an amended letter, so we don't have any other information. However I would just like to indicate that their reading of the Ordinance in the memo that we received from them is really inaccurate in that they indicate that the total property is only allowed a hundred and fifty square feet of total signage, when in fact the Ordinance indicates that there is three hundred square feet allowed, so I don't know what the reaction would be. . . (unintelligible) CHAIRMAN TOMLAN: (unintelligible) building size. MR. O'NEIL: Not on the - what they indicated in ours was that the two hundred and twenty-five and the fifty free-standing for two seventy-five and then they say, almost double the maximum. They were referring back to the hundred and fifty. MR. OAKLEY: That is clearly not correct. CHAIRMAN TOMLAN: But you didn't have a chance to say anything one way or the other at that point? PAGE 96 BZA MINUTES - 11/9/87 MR. O'NEIL: No, as a matter of fact we showed up to the hearing that night and we were told when we got there that it was not going to be heard. CHAIRMAN TOMLAN: And there was no one else from the other side saying anything either to your knowledge? MR. O'NEIL: No, they didn't even hear it. This was apparently done through the Codes and Administration Committee internally, prior even to the Board hearing. . . CHAIRMAN TOMLAN: Thank you for clarifying that. SECRETARY HOARD: Incidentally if you don't recall - last month they had asked for a much larger sign and the Planning Board recommended approval. MR. OAKLEY: And then we have the November 5th (unintelligible) CHAIRMAN TOMLAN: Any questions from members of the Board? MR. O'NEIL: I would just. . . MR. OAKLEY: One, I guess. Wouldn't a free-standing sign solve your road visibility problems with Maguire Ford far better than the wall sign on the store in that it would be visible a considerable distance (unintelligible) would never be obstructed by Maguire Ford and on top of that you wouldn't have to encourage drivers to turn their heads away from the road, at least I find it unsafe when I do it for more than four seconds. MR. O'NEIL; Well I would hope that they didn't do it for four seconds, I don't want to be in front of them or in back of them when they do. . . . CHAIRMAN TOMLAN: The flip side of the coin is the intent of the Ordinance is to reduce the road signage as much as possible. Quite PAGE 97 BZA MINUTES - 11/9/87 frankly, from what I saw last month, to what I see this month, I'm about ready to stand up and clap and applaud you, because I think you have done a fine job in meeting the intent of our rather disparate discussion last month. MR. OAKLEY: I 'd like to make another - ask another question which has to do with the visibility thing - because you have suggested that you feel that there are difficulties with the visibility and I understand that your store is some distance back. . . MR. O'NEIL: We not only feel - we know that there is a problem with visibility. . . MR. OAKLEY: Well I have an observation which I made - about a week ago - because I live on South Cayuga Street and I walked up the street - I happened to be up in the parking lot of the Morse Chain Company, which is in my neighborhood - and that is - how far would you say that is - it is about ten or probably twelve blocks by the time you get there - and with the leaves fallen off now and at night I realized that I could read the sign at the TOPS store with no difficulty at all and my eyes are not corrected to any extraordinary extent and I don't think they are corrected completed to twenty/twenty vision - so I have a difficulty in believing that even a much smaller sign would not be clearly legible from Meadow Street. MR. O'NEIL: Building mounted, you are referring to? MR. OAKLEY: Building mounted sign, yes. MR. O'NEIL: Well again the purpose of the building mounted sign is to be able to view it as you are going up and down the road, I guess I 'm not saying that if you were to stand directly across from PAGE 98 BZA MINUTES - 11/9/87 it - or down the street even - down South Street for a block or two and just standing there that you couldn't - or sitting in a car - that you couldn't read it. We are not trying to say that but you have to have the ability to be able to clearly pick out the name of the facility as you are driving down the road and, as I indicated, we feel that an excess of seventy-five percent of our traffic will be coming in from that direction and there is only a very short distance to pick up that name. Technically what potentially could happen is - if you were unable to do it - you've got to be able to change lanes within that immediate area too. If you were to get stuck over in the far left lane. . . MR. SIEVERDING: Well that sort of gets back to the earlier observation - the Ordinance allows you to have two signs; one on the street and one on the building and wouldn't the street sign solve the identification problem for anybody who is driving south on Meadow? CHAIRMAN TOMLAN: Maybe it would, but I come back to the spirit of the Ordinance. The spirit of the Ordinance is clearly to diminish the amount of roadside clutter. Gosh they have done a fantastic job, what the devil else do you want, pardon my. . . MR. OAKLEY: Potentially, conformance with the Ordinance. I mean, they have done much better than they did the first time but how do we know that they didn't come to us the first time with an exaggerated request and are coming to us this time with a moderated request. I mean it is a traditional bargaining technique. . . PAGE 99 BZA MINUTES - 11/9/87 CHAIRMAN TOMLAN: I see. We are never going to get to see the last quarter of whatever football game is playing, if you guys keep this up. MR. O'NEIL: That was not the intent at all - as a matter of fact, the request that we came with originally which is the one shown on the underlay rendering is the sign that is a standard made sign on all of our buildings. We've had to modify it in one other case and we are now modifying it - or will have to modify it for this application, so it wasn't some kind of a preconceived notion to come in with thousand square feet and hope to get it down to four hundred - that is our standard sign and this, in any other location that we are going - this is the sign that is being proposed. And again, it is not being supplemented - we are not trying to supplement it with signage out at the roadway because we as an organization do not feel that that is an appropriate type of signage. We'd like to back away from the road and keep as much signage as possible off the roadway area. From our standpoint, we feel it is just more clutter on the road and it seems to draw your attention away from things such as traffic signals, traffic signs, things that are more important to be seen on the roadway. MR. SIEVERDING: Just an observation, I agree with you that they have done a good job and I think if you look at the total square footage that is allowed at the street, they are under three hundred square feet that is allowed. I don't particular agree with the interpretation - this lineal feet, I think it is - a hundred fifty is (unintelligible) you are allowed one and a half per lineal foot of a building up to a maximum of a hundred. . . PAGE 100 BZA MINUTES - 11/9/87 MR. O'NEIL: I guess. . . MR. SIEVERDING: I don't want to have ten, fifteen (unintelligible) I think you are under the three hundred total that you are allowed. . . MR. WEAVER: But in a commercial area - you understand that if this were a strip (unintelligible) you could have signs all over. . . MR. SIEVERDING: I understand that - even one of which could be a hundred and fifty square feet. . . MR. WEAVER: So, in effect, the precise application of the Ordinance in this instance - which is rather peculiar - with all that building and this little bit of sign compared with - let's say, the old market that is just down the street - which has a sign, and a sign, and a sign, and a sign, and a sign - visible from two streets, incidentally - so there is a difference in application that is pretty unusual but this is all the sign that this much commercial building (unintelligible) We don't have very many other examples of it except the super market - even the car dealers have found that they can have Buicks and Pontiacs and Toyotas - that they can have businesses within their business that allows a proliferation of signs all over the place. MR. OAKLEY: Perhaps the City should consider doing something about the upper (unintelligible) MR. WEAVER: Well if you think the City ought to give some attention to the Sign Ordinance, make the motion and I 'll second it. Not that we will. PAGE 101 BZA MINUTES - 11/9/87 CHAIRMAN TOMLAN: One more time, are there any further questions of the appellant from members of the Board? I hate to ask that because I know there will be. MR. SCHWAB: Do we need to get into the November 6th memorandum? SECRETARY HOARD: No. I will explain that. Jon Meigs came up today with another method of measuring and he is saying that you can't measure the individual letters - in fact, I told Mr. O'Neil that this is the way that we've always done it, we've measured individual letters in a sign like this so there is certainly plenty of precedent for doing it that way. CHAIRMAN TOMLAN: Let the record show that there is no one else in the room who could say anything either for or against the appellant. At this time I will accept motions. PAGE 102 BZA MINUTES - 11/9/87 DECISION ON APPEAL NUMBER 11-1-87 FOR 600 SOUTH MEADOW STREET The Board of Zoning Appeals considered the request of Wegmans Enterprises for sign variances to permit the installation of a wall sign at 600 South Meadow Street (Wegman's Food Pharmacy) that exceeds the maximum area permitted by the Sign Ordinance. Proposed is a sign on the face of the store that totals 225 square feet. The decision of the Board was as follows: MR. SCHWAB: I move that the Board grant the sign variance requested in Appeal Number 11-1-87. MR. WEAVER: I second the motion. PROPOSED FINDINGS OF FACT: 1. The total square footage allowed by the Ordinance is 300 square feet and the proposal will be less than that. 2 . The proposal will reduce the allowed amount of signage on the free-standing sign on the roadway and put additional signage on the building some 500 feet back, which is more consistent with their Company policy. 3 . The reduced clutter on the roadway sign preserves the spirit of the Sign Ordinance and will not change the character of the neighborhood. VOTE: 6 YES; 0 NO SIGN VARIANCE GRANTED PAGE 103