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HomeMy WebLinkAboutMN-BZA-1990-04-05 BZA MINUTES - APRIL 5, 1990 Chairman Tomlan called the April 5, 1990 meeting of the Board of Zoning Appeals to order at 7:00 P.M. The Board operates under the provisions of the Ithaca City Charter, the Ithaca Zoning Ordinance, and the Board's own Rules and Regulations. Members present tonight are: MICHAEL TOMLAN, CHAIRMAN BEATRICE MACLEOD HERMAN SIEVERDING JANIS COCHRAN JACK PECK ERIC DATZ, SECRETARY, ZONING OFFICER AND BUILDING COMMISSIONER CAROL SHIPE, RECORDING SECRETARY CHAIRMAN TOMLAN: Are there any questions about our procedure? Then may we proceed to our first case? SECY. DATZ: First case is APPEAL #1951 Appeal of Donald Dickinson for an area variance for maximum number of stories, deficient percent of lot coverage, and minimum side and rear yards under Section 30.25, Columns 8, 10, 12, 13, and 14 of the Zoning Ordinance to permit the conversion of 3500 square feet of storage space to office use at 401 East State Street. The property is located in a B-4 (Business) Use District in which the proposed use is permitted; however, under Section 30.57, the appellant must first obtain an area variance from the listed deficiencies before a building permit and a Certificate of Occupancy can be issued. CHAIRMAN TOMLAN: Anyone here for the first case? If you'd come forward, please. Have a seat. Relax. Enjoy yourself. But you have to begin, because the tape recorder is blind, right and identify. yourself for the record, and where you live. Appellant Donald Dickinson stated that he is attempting to put an office area in what was formerly a storage area at 401 East State Street. He stated he felt that it would make more sense, at the foot of State Street hill, to have an office rather than a mercantile establishment such as a newsstand or something of that nature. He stated he has a possibility of a tenant. Chairman Tomlan asked if there were questions from members of the Board. Mr. Sieverding asked if the area was used for storage at the present, and if the storage was the non-conforming use. Secretary Datz stated that the whole building was mostly storage, and was storage for the tenant presently. Mr. Dickinson added that it was also storage for others, and indicated that that was what the building was constructed for. In response to Mr. Dickinson's question about storage not being allowed after it had been used that way for 60 years, Mr. Sieverding stated that storage and warehousing were allowed only in Industrial zones, however, this use is grandfathered. He further stated that what the appellant was proposing was a legal, conforming use - offices in this location - with only area deficiencies. Ms. MacLeod raised the question of parking, and Mr. Dickinson stated that he had ample parking. Mr. BZA MINUTES - APRIL 5, 1990 Dickinson stated that the present tenant was going to give up some of the storage area, and that was the reason he was applying. Chairman Tomlan stated that the Board should have something related to the provisions for a use variance. Mr. Sieverding indicated that a use variance was not in question since he was proposing a legal, conforming use, but that he only needed an area variance. This was to be noted on the worksheet. Chairman Tomlan asked if the public notice indicated a use variance, but it did not; therefore, it did not effect the public notice. There were questions about the numerous deficiencies, which Mr. Sieverding indicated were related to the size of the building relative to the lot and had been present since 1925. Chairman Tomlan asked if there was anyone to speak in favor of, or in opposition to the appeal. There were none. MR. SIEVERDING: I move to grant Appeal Number 1951. Motion was seconded by Ms. Cochran. Findings of Fact: 1. There are practical difficulties which make compliance with the Ordinance virtually impossible. Although the deficiencies relate to the size of the building relative to the lot, and the only way to correct that would be to either acquire additional property, which is not available, or reduce the size of the building which is impractical. 2. The proposed conversion actually takes a legal, nonconforming use and changes that to a legal, conforming use thereby making more of the building in compliance with current use requirements in the Zoning Ordinance. 3. The variance is in the spirit of the Ordinance and consistent with the character of the neighborhood. Vote: 5 yes; 0 No. Variance granted. APPEAL NO. 1953 Appeal of Scot Raynor of Cornell University for an area variance for deficient parking space size under Section 30. 37, A-2 of the Zoning Ordinance to permit the construction of a parking lot between Alberding Field House and Kite Hill Tennis Courts. The property is located in a P-1 (Public) Use District in which the proposed use is permitted; however, under Section 30.37, A-2 the appellant must first obtain an area variance for the proposed 136 square foot parking space size where 180 square feet are required before a building permit can be issued. Appellants Scot Raynor, Landscape Architect with Cornell University and Bill Wendt, Director of Transportation Services at Cornell University. Mr. Raynor stated that, to provide the additional information requested by the Board in March, he submitted a survey, done on March 19, 1990, of parking spaces on the Cornell Campus in various locations by taking a random row of parking within a lot, or all the parking on a street, and taking a sample of the cars in the parking lot. This information was compiled and they attempted to BZA MINUTES - APRIL 5, 1990 obtain the sizes of the cars from the manufacturers; however, they were unable to get that information. Because of the various makes, models and years, the car dealers could not always provide that information. The majority of the sizes were not shown on the survey. Mr. Raynor stated that, of the 329 cars listed in the survey, 196 could be classified as small vehicles, 88 classified as medium, and 45 could be large vehicles. Mr. Raynor stated that Cornell University realized that cars, in general, have become smaller over the past 10 years and has, accordingly, been building smaller parking spaces. He stated that they are appealing for this variance because they feel the 8.5' x 16 ' is a suitable size for Cornell, and in other places it is a standard that is used world- wide - known as the European standard. Cornell adopted this standard in 1984 and 1985, and has built 2,000 to 3, 000 spaces 8. 5 x 161 . When Cornell built the parking garage on campus, approximately 1987, the City was building their garage on Dryden Road with spaces that were less than 8.5 x 161 , the aisles were somewhat smaller. He pointed out that the Ordinance has not been enforced, stating that the City did not follow its own Ordinance, or applied uniformly. Mr. Raynor, referring to a drawing he submitted, stated that there was an existing driveway, which would be very costly to change, and that they hoped to pave the existing stone gravel parking area used as a contractor's staging area for 3-4 years. Mr. Raynor explained that they could work within the site using 8.5 x 16 spaces, maximizing what they feel would be allowable under the circumstances. He stated they could go longer and wider, but there were site lines not visible on the drawing: football fields to the north, proposed sidewalk to the north at a future date, tennis courts on the east side of the parking lot, and a remnant of vegetation with mature trees. They do not want to disturb those trees so they don't want to go to the north; to the south Campus Road will be extended to the east, within the next 2-3 years, and they want to have a setback to have a tree-planting strip and a sidewalk along Campus Road. In order to comply with the City Ordinance, he illustrated two alternatives. One would be to have the spaces 8.5 x 211 , meeting the 180 square foot requirement, but in doing so the parking lot would have to be extended 16 feet, amounting to approximately 3,200 extra square feet, costing nearly $11, 000. There would not be a center line true to the existing condition (the extension shown in gray on the drawing) . The other alternative would be to make the spaces wider, but not as long; the result being that they would lose 5 spaces, and would have to replace them somewhere else at a cost of approximately $4,000 each. Each alternative entails more asphalt and shifting the curb alignment to the east, and removing some of the vegetation along the east, which is the only vegetation within 200 feet of the site. There would be extra runoff, by paving the grass area, into the storm sewers and eventually into the creeks. He felt, environmentally, that these schemes were not as satisfactory as the Cornell proposal. In closing, he stated that he thought the 8. 5 x 21 or 9 x 20 spaces were too large for three reasons: 1) the size is outdated; 2) the environmental impact on the site; and 3) the increased cost. Chairman Tomlan asked if there were questions from members of the Board. Mr. Peck asked why, in the third drawing, 'BZA MINUTES - APRIL 5, 1990 more pavement was required if the spaces were widened but not lengthened. Mr. Raynor explained that the spaces were 8. 5 x 16 on the edge, and 8.5 x 18 in the middle, leaving more in the middle for overhang space that isn't on the outside. To meet the 180 square feet requires bumping up the spaces (referring to the c.\rawing) by widening and lengthening the space. They would be lengthening the space by 4 feet for each space. In response to Mr. Peck's question, Mr. Raynor stated that both of these schemes conform to the current zoning. There was discussion about the aisle space. Mr. Wendt stated that there was one difficulty with that because when a line is striped that far out, that indicates that a motorist may park that far out into a lane, so what is created is a hazard of people moving around vehicles that are legally allowed to be parked out 22 feet, and that causes a problem in efforts to get around it. He further stated that they have built roughly 4, 000 to 5,000 parking spaces in the past decade that have never come to the City for review; the City's built parking spaces smaller than you allow. The new lot the south side of the Field House, just completed and designed by a New York City architect, the spaces do not comply to the 180 square feet. The Building Commissioner advised that they approach and try to deal with the issue so as to understand what they should be doing. Rather than to take a route around it that would cause safety problems and enforcement problems, Mr. Wendt thought that they should get it clarified. There is another smaller lot on Edgemoor, and a larger lot yet to be dealt with on the North Campus, which involves 300 parking spaces and a much greater impact in terms of additional asphalt and land needed in an area where people are very sensitive to maintaining green space. Mr. Peck asked about the cost figures and how they were derived. Mr. Raynor stated that one scheme (referring to a drawing) would cost $20, 000 which would involve extra re-grading, removal of trees, but would keep the extra five parking spaces. Extra granite curbing in one area, moving granite curbing in all the shaded areas. In response to Mr. Sieverding's question about existing granite curbing, Mr. Raynor said they were just moving about 100 feet, not buying more. In the left configuration, the granite curbing is all existing so they would not be buying more just moving it to accommodate the middle scheme. This scheme (drawing) is about $8,000 paving, $1,200 extra in curbing, re-aligning the curbing $6, 000, $600 to re-grade and $300 to remove trees and replacement of five spaces amounts to $20, 000. This scheme is more expensive because of the replacement factor. Chairman Tomlan asked if there were further questions. Mr. Sieverding focused on the middle scheme and stated, that of the two schemes, the scheme on the right, the 9 x 20 space, clearly represented practical difficulty by losing 5 spaces, which would be picked up in the middle scheme. He stated that the Board had to look for practical difficulty when granting a variance, and asked if Mr. Raynor could discuss the middle scheme (8.5 x 18 and 8.5 x 21) . Mr. Raynor stated that one of the problems is that Cornell, after building smaller spaces in the past, is now being asked to change "courses in mid-stream" resulting in shifting curb alignments. Discussion followed on defining "mid-stream" . Mr. Wendt stated that all the parking spaces in this area of the campus are consistent at the 8. 5 x 16' size, starting with Statler Hall moving up the new -BZA MINUTES - APRIL 5, 1990 drive with new lots for the Statler Hotel School, new parking between Lynah and Teagle, renovation of the lot behind the Crescent, the entire 700 spaces. . Every parking space they have built is consistent, so in terms of introducing a new standard here in view of future projects, they would have to come back with every project. With the lot on North Campus, if they attempted to use the City standard, they would not be able on that piece of real estate to be able to replace parking and re-build it to the numbers that that would need, so they would again be back with the next project on this same issue. Mr. Wendt stated that, in the project they began in the fall, they could not replace the number of spaces that were there - they were there in an unpaved fashion - now they want to pave and improve the lot, but they can't do that if they attempt to meet the City standards without severly damaging the landscape and taking away grown green space in almost every project. He stated that they would be coming back on every project, and the Board would probably agree that something couldn't be done because they would run up against a sidewalk, or a road or something. There was further discussion on changing the Ordinance. There were no other questions from members of the Board. Chairman Tomlan asked if there was anyone who wished to speak in favor of or opposition to the appeal. There was no one. The Board deliberated on the appeal. Mr. Peck felt that the Board would be creating legislation in this instance. The loss of 5 parking spaces, out of 70 or 80, is less than 10% of total parking spaces, and it would be hard to justify that in terms of practical difficulty. MR. PECK: I move that Appeal No. 1953 be granted. Motion seconded by Ms. MacLeod. Findings of Fact: 1. Practical difficulties in the City Ordinance having 180 square foot parking space in this case seems to be that the strict conformance with producing 180 square foot parking space would produce safety hazards for the cars involved parking too far out into an aisle. The replacement of the five parking spaces would cost an inordinate amount of money; on the order of $20, 000 has been estimated to replace the five parking spaces, which is also a practical difficulty. Also, the general damage to the environment in the area it seems is a practical difficulty in this ease, which should be avoided if we possibly can. 2 . It is within the spirit of the Ordinance, and in the character of the zoning for this particular area. Chairman Tomlan asked if there was further discussion. Mr. Sieverding asked if there should be mention of practical difficulties involved with the middle scheme as far as alignment of the road, replacing the curbs, additional asphalt. He added the following: 3 . The appellants have demonstrated some practical difficulty relative to re-aligning an entry driveway that is already in place, BZA MINUTES - APRIL 5, 1990 relocating curbing material that is already in place, removing vegetation which is already in place, and adding additional asphalt which has some environmental concerns in terms of reduction of open space and increasing paved area, which in turn, generates excess run-off. Addition accepted by seconder. There was no further discussion, and a vote was taken. VOTE: 5 yes; 0 no. Area variance granted APPEAL NO. 1954 Appeal of Slava and Laura Paperno for an area variance for deficient side yard and rear yard under Section 30.25, Columns 12 and 14 of the Zoning Ordinance to permit the single story addition to the rear of the property at 202 Bridge Street. The single family dwelling is located in an R-lb (Residential) Use District in which the proposed use is permitted; however, under Section 30.49 the appellant must first obtain an area variance from the listed deficiencies before a building permit can be issued. Appellant Slava Paperno, 202 Bridge Street, stated that he wanted to build an addition to his house, which is small and they have grown out of it. The use of the house will not change. The addition will be at the back of the house, where there are no neighbors, and is adjacent to the gorge. The addition will be one story and will not come within 15 feet of the line. Chairman Tomlan asked for questions from the members of the Board. Mr. Sieverding asked if the appellant had considered doing an addition that ran the full length of the house instead of coming straight out to reduce the amount of deficiency that is being created. Appellant stated that that would not allow no light, either in the addition or in the existing rooms because that is the west wall of the building and there are trees back there, so it would not be feasible to do it. Mr. Peck asked if there was a problem with the gorge, and there was not. Chairman Tomlan asked if there were further questions. Mr. Peck asked if there were a rear yard deficiency. Appellant stated that the lot was narrow but very deep. Secy. Datz stated there was an existing rear yard deficiency, which will be increased by the addition. There were no more questions from Board members. Chairman Tomlan asked if there was anyone to speak in favor of or in opposition to the appeal. There was no one. There was no deliberation. MR. SIEVERDING: I move that Appeal No. 1954 be granted. Motion seconded by Ms. MacLeod. Findings of Fact: 1. The property has two deficiencies, a side yard and a rear yard. The side yard deficiency will not be affected by the proposed addition. The proposed addition to the rear is placed such that it will not block natural light and ventilation to the house. The more efficient layout and use of the land. The property backs up to a -BZA MINUTES - APRIL 5, 1990 gorge, which is unbuildable, and in that sense, this deficiency will not have any effect on the surrounding properties. 2. The variance is consistent with the Zoning Ordinance and the character of the neighborhood. There was no further discussion, and a vote was taken. VOTE: 5 Yes; 0 No. Area variance granted. APPEAL NO. 1955 Appeal of David Holmberg for an area variance for a deficient front yard under Section 30.25' Column 11 of the Zoning Ordinance to permit the rear addition at 408 East Seneca Street. The single family home is located in an R-2a (Residential) Use District in which the proposed use is permitted; however, under Section 30.49, the appellant must first obtain an area variance from the listed deficiency before a building permit can be issued. Appellant David Holmberg, 408 East Seneca Street, stated that his house is an older house located on the lower part of Seneca Street hill. There is a dilapidated porch glassed-in porch on the lower side and a rear deck-like porch on the top that is getting dangerous and they wanted to do some alterations to the house. He wants to push things out 4 feet farther, and because the front yard does not meet the 251 , he understands he needs to get a variance. The addition will be on the back and one side, and both of those are in compliance. The lower story will be used as an extension of the kitchen, and the upper will be used as a study continuation of the bedroom. Being in the Historic District, plans were submitted to the Landmarks Preservation Committe last Fall and they approved the design, but during the process of obtaining a building permit, it was discovered that a variance was required. In response to Mr. Peck's question, Mr. Holmberg stated that the porch would be removed and replaced with a two-story addition. There would be a very slight increase, about 40 square feet, in the size of the footprint, which would not change the percentage of lot coverage significantly. (a photograph was passed around) Chairman Tomlan asked if there was anyone to speak in favor of or in opposition to the appeal. There was no one. There was no further discussion. MR. PECK: I move that Appeal No. 1955 be granted. Motion seconded by Ms. MacLeod. Findings of Fact: 1. Practical difficulties are that the house in its existing position could not be moved. To live by the strict ordinance would be to acquire property, which is also impossible in the front. 2. The addition will not change the footprint of the house, in that it will be replace an existing porch. 3 . This is within the spirit of the Ordinance, and keeps the character of the neighborhood. *BZA MINUTES - APRIL 5, 1990 There was no further discussion, and a vote was taken. VOTE: 5 Yes; 0 No Appeal granted. APPEAL NO. 1956 Appeal of John and Marie Doyle for an area variance for deficient front yard and side yard under Section 30.25, Columns 11 and 13 of the Zoning Ordinance to permit the rear addition to enlarge the kitchen and add a deck at 417 Utica Street. The single family dwelling is located in an R-2b (Residential) Use District in which the proposed use is permitted; however, under Section 30.49 the appellant must first obtain an area variance from the listed deficiencies before a building permit can be issued. Appellant John Doyle, 417 Utica Street, is requesting a variance to put an addition on the rear of his home to enlarge the kitchen and also to put a deck on; a porch will be removed when the addition is put on. Chairman Tomlan asked if there were questions from members of the Board. Mr. Sieverding asked if the kitchen addition followed the lines of the existing house and just carries it back straight another 8 feet. Appellant stated that it would. Mr. Sieverding asked if it was just a one-story addition with a deck. Appellant indicated yes. Mr. Peck asked if the addition could be placed in conformance with the Zoning Code? Discussion followed concerning the placement of the addition and deck relative to the side yard setback requirements. The deck will not effect the deficiencies. The kitchen addition will not make the deficiencies any worse, just extending an existing deficiency. There were no further questions from Board members. Chairman Tomlan asked if there was anyone else who wished to speak in favor of or in opposition to this appeal. There was no one. There was no further discussion. MS. MACLEOD: I move that Appeal No. 1956 be approved. Motion was seconded by Mr. Sieverding. Findings of Fact: 1. The front deficiency of the house cannot be changed without (unintelligible) , and the kitchen addition and the deck will not seriously effect the existing deficiencies. There was no further discussion, and a vote was taken. VOTE: 5 Yes; 0 No Appeal granted. APPEAL NO. 1957 Appeal of Linda Waugh for an area variance for deficient front yard under Section 30.25, Column 11 of the Zoning Ordinance to permit an addition to the rear to enlarge the kitchen at 214 Bryant Avenue. The single family dwelling is located in an R-lb (Residential) Use District in which the proposed use is permitted; however, under Section 30.49 the appellant must first obtain an area variance from the listed deficiency before a building permit can be issued. 'BZA MINUTES - APRIL 5, 1990 Appellants Linda Waugh and Ronald Beiger, 215 Bryant Avenue, stated that they have lived in Bryant Park for some time and will be purchasing the house across the street at 214 Bryant Avenue. They are requesting a variance to add an addition to enlarge the kitchen and turn the small out(unintelligible) into a family room, and to add a bathroom. The deficiency is in the front of the house. There is a porch in the rear, which would be removed, and the addition would essentially take the place of the porch. Chairman Tomlan stated that the percentage of the lot coverage appeared okay, and that the deficiency is associated with the front yard. The parking appeared to be okay. There were no further questions from the members of the Board. Chairman Tomlan asked if there was anyone else who wished to speak in favor of or in opposition to the appeal. There was no one. MR. SIEVERDING: I move that Appeal No. 1957 be granted. Motion was seconded by Ms. MacLeod. Findings of Fact: 1. The only area deficiency for the property is the front yard. The proposed addition is to be constructed at the rear. The practical difficulty relative to the front yard deficiency is that it is virtually impossible to acquire additional property or move the house in order to remove the deficiency. The addition will in no way effect that. 2. The variance is in the spirit of the Ordinance and the character of the district. There was no further discussion, and a vote was taken. VOTE: 5 Yes; 0 No. Appeal granted. APPEAL NO. 1958 Appeal of Paul Cavanaugh for an area variance for deficient front yard and rear yard under Section 30.25, Columns 11 and 14 of the Zoning Ordinance to permit the conversion of the property at 109 Elston Place to a two-family dwelling. The single family dwelling is located in an R-2a (Residential) Use District in which the proposed use is permitted; however, under Section 30. 57 the appellant must first obtain an area variance from the listed deficiencies before a building permit and a Certificate of Occupancy can be issued. Appellant Paul Cavanaugh, Morgan Road, Interlaken, N.Y. stated that he is proposing construction to convert the single family home to a two-family dwelling. He stated that a variance was granted to the property in February, 1986 for the same purpose, but was not acted upon. Currently, the property has front and rear yard deficiencies that would be impossible to correct. He does not plan any additions to the exterior of the structure; the variance is simply to allow construction to complete the conversion. Chairman Tomlan asked Mr. Cavanaugh if he was going to be an occupant, as well as the owner, of the residence. Mr. Cavanaugh stated that currently no, but that 'BZA MINUTES - APRIL 5, 1990 was a possibility; he and the other person purchasing the property may choose to live there, but he is not sure at this point what will happen. Chairman Tomlan asked if there were further questions from members of the Board. Mr. Sieverding asked appellant to explain the fourth paragraph, which suggests that some of what is required for a two-family residence is in place, but some of it is not. Appellant stated that the current owners may have had communication problems between themselves and the Building Department regarding what needed to be done. They proceeded with some work under the assumption that that was what they needed to do in order to complete a conversion, however, they failed to get a building permit. There is a sprinkler system throughout the building, which would be required for the conversion; there was also work done for a separate exterior exit for the second floor dwelling, as well as some improvements to the second floor kitchen and bathroom. Appellant is proposing to continue with those modifications as listed in that paragraph in addition to a few additional things they would have to do. One thing that is under discussion with the architect and the Building Department, which they are not considering doing is the installation of the additional fire exit for the second floor. After review, it appears that with the sprinkler system that is in place, with the addition of a new interior stairwell, the exterior stair will not be needed. Mr. Sieverding asked what the configuration of each apartment would be. Mr. Cavanaugh stated that there would be two, three-bedroom apartments, each with kitchen, living room, and full bath. Chairman Tomlan asked if the purchase of the property was contingent upon the variance being granted. Mr. Cavanaugh stated yes. Chairman Tomlan asked if there were further questions. Mr. Sieverding asked, with the possibility of six persons occupying the property, if the parking situation was okay. Secy. Datz stated there were three parking spaces existing; required would be one space per dwelling unit for 3 bedrooms, so only two would be required. Ms. MacLeod asked, if they decided not to live in the house, if they would rent to two separate families in the two-family house. Mr. Cavanaugh stated that he was not sure who would become tenants, but he would be falling within the zoning of the area so that would be a family in each unit plus not more than two unrelated, so a maximum of three unrelated in each apartment. He indicated, in response to Ms. MacLeod's question, that it might be two sets of students. Mr. Sieverding asked about the "not a city street" notation on the worksheet. Secy. Datz stated that Elston Place is not a City street, and that information was put there by Peter Dieterich. Chairman Tomlan pointed out that there are a number of places and avenues, unofficial streets, that are used as frontage, which raises the question as to how one makes calculations in the code by virtue of the fact that it is not official. He went on to state that in this instance it appears to be okay. Mr. Cavanaugh added that one of the things that he is looking at with the building now is the configuration of two full kitchens, two full baths and six bedrooms; if the house were to go back to a single family dwelling, you'd be looking at a situation of a 10-room house with eight bedrooms. He felt that their conversion seems to address the concern of a reasonable return for the property. One of the existing situations now is, because there is not a reasonable BZA MINUTES - APRIL 5, 1990 return, there are some students in the lower apartment; the building is basically falling apart. The exterior is in need of exterior work, and he has estimates for most anything he could possibly think of. He has had discussions with surrounding property owners to see if there were any concerns on their part. There are two single family homes behind the property, and he spoke to both of the individuals owning those properties trying to address their concerns. They asked that some things be remedied, and he stated he is looking into these. He felt that, with the number of multiple dwellings and duplexes in the area, he falls within the intent of the zoning. Chairman Tomlan asked if appellant was aware of the previous attempts at dealing with the property. Mr. Cavanaugh stated that they were and that was why they had been to the Building Commissioner's office so often to look into this and to see what can be done to prevent it in the future. He stated that from previous owners there were either misunderstandings or neglect, and he is trying to address that. Chairman Tomlan asked if there were further questions from members of the Board. Mr. Sieverding asked if appellant knew what the occupancy of the building was or is now. Mr. Cavanaugh stated that he believed it was rated for a family plus not more than two unrelated. What is in there now are three students; just the first floor apartment is being used, the second floor apartment is vacant. Secy. Datz stated that that was ordered by the Building Department, and the property is currently classified as a single family dwelling. There were no further questions from members of the Board. Chairman Tomlan asked if there was anyone else who wished to speak in favor of or in opposition to the appeal. Chairman Tomlan stated that Board members wanted to note that they have received correspondence, with respect to this appeal, in opposition. Chairman Tomlan, noting that each member had a copy, read into the record, and so noted that it was done in accordance with the Board's rules and regulations, a letter from George Schuler. Chairman Tomlan noted that the Board does not determine when someone may apply, and there are no rules or regulations that would or could permit us from hearing this appeal this evening; hence, to the intent of the letter for us not to hear the case would be clearly in violation of our charge and the law. You understand that, I think, that clearly and would agree. What we have here, then, is a question of whether, in effect, you as Board members feel that the information which would be provided by the Cohens and the Schulers would in some ways is necessary to supplement the record in such a way as for you to reach a decision. The reason I am bringing this up at this point is that we have no heard for and against, no one speaking, obviously against, in person but in writing, this appeal to defer the case. Rather than defer the case, I submit to you one option, if you feel it's necessary, is simply to defer judgement for a month and allow whomever to come back, but I should point out that there is nothing in the rules and regulations that says you have to, and generally speaking, the deference for a month is really up to us on legal grounds; that is, if we're seeking additional legal counsel on a point which is unclear to us, we can defer. Or, if we are seeking additional information as we did earlier, by virtue of Cornell University a carry-over from last month to this month, additional information we can defer. That's BZA MINUTES - APRIL 5, 1990 our discretion. I think it's misunderstood on the part of the Schulers and the Cohens, both, that this is an interactive process. It suggests in the letter that somehow or another they would say something and the appellant would say something and that they would say something and the appellant would say something. Clearly they misunderstand the process that we are going through, and I want that to be clear as well. Essentially, they would be given the right to submit their comments or to say things publicly, but we're not into a situation where there is going to be rebuttal in any event. I only point this out to make sure that everybody understands the conditions under which we are operating. Clear? Comments? Mr. Sieverding asked if, for instance, the Board were to defer, would the appellant be required to go through public notice requirements again? Chairman Tomlan said yes. Mr. Sieverding asked about notifying neighbors within 200 feet. Chairman Tomlan agreed. Ms. MacLeod asked even if the appellant asked for a deferral. Chairman Tomlan stated that if the appellant asked for a deferral, it would be granted anyway, Bea. The appellant has not asked for a deferral in this instance. Ms. MacLeod said that it was only a hypothetical question. Chairman Tomlan stated that what he sees is, clearly, here and he has had great and extended conversations with a number of people that the Schulers' have talked to, about the advisability of holding a meeting on this evening; my reaction was the same one as it was when we discussed it, this is not a federal holiday, it is not a state holiday, it is not a local holiday. Other boards and committees are meeting, witness the one in the adjacent room; we're not the only Board by any means to conduct business, and I further pointed out on a number of occasions that there have been other religious holidays where it seemed - well, we were flying in the face of other religions on other occasions - I suppose if you really took this to the extreme, there have been Muslim, Catholic, Episcopalian holidays right across the board, we've held community meetings of one sort or another. Rather, we try to avoid them, but we have done it rather often. So, I guess what I 'm asking here is what say you with respect to the information in front of you. Do you feel as though you have enough information on the record to reach a decision is what I 'm asking. And we can continue, of course, in reading the letter in opposition which George and Nancy provided beyond this. Ms. Cochran asked if the appellant had access to these letters. Chairman Tomlan said that Mr. Cavanaugh was indicating that he did not have access to the material, but then you have to ask the question . . Well, we can give him a copy as a matter of courtesy, then it comes back to you, as members of the Board, whether you, in fact, want to start an interactive sort of arrangement if he has further comments and questions. I 'm perfectly happy to supply him with a copy, there's no secret here. This is public information, public record, but it's . . I want him to understand, and for you to understand, that there may not be conversation going on beyond that. Mr. Sieverding felt that that would be unfair to the people who couldn't be here. If he gets a letter for his records and he understands where they're coming from, that's the extent of it. Chairman Tomlan wanted it understood that those are the rules under which the Board is playing, if we're going in that direction. Mr. Sieverding stated, that before we go in that -BZA MINUTES - APRIL 5, 1990 direction, I would like to ask him one question. Chairman Tomlan pointed out that the appellant would have to be requested to come back, and asked if it was the feeling of the Board to bring Mr. Cavanaugh back. All agreed, and Mr. Cavanaugh returned. Mr. Sieverding's question was what the expiration date of the purchase offer was. The appellant stated that the purchase offer was not in yet; they were taking care of the variance ahead of time. Mr. Cavanaugh had one comment, which he didn't feel would violate anything, and that was that he had had numerous discussions with the Schulers and the Cohens, and by reviewing the record and trying to understand their concerns. He stated that he was not informed of their desire to postpone this until 9:00 a.m. today. He stated that, as far as the contents of the letter, he believed from his conversations he knows their concerns and was comfortable. Ms. MacLeod asked if the Board decides that there is more information that they would like to have, it would be possible for the Board to defer to another. . Chairman Tomlan said to defer for another month. She asked about Elston Place not being a City street, and if that fact involved fire protection, access of fire engines, etc. Chairman Tomlan said yes, but that he had not addressed that, and explained that Peter Dieterich was saying that it did meet City requirements . . Further discussion continued and Chairman Tomlan explained that, legally, the street has the proper width and proper dimension, and that that's not an issue. (changing the tape) Ms. Cochran asked if the Board had access to the hearing held in 1986. Chairman Tomlan stated that was a good point and went on to discuss a similar case. He stated that it would be a good idea to follow Ms. Cochran's suggestion and review the record to make sure that the Board's decision is consistent with the decision made previously; that would be the more conservative and cautious way to proceed. I don't know if you knew the history, but it was an excellent suggestion. Ms. Cochran stated that she thought it would be fair to defer the Board's decision on the basis alone, because she wasn't on the Board at that time, and to find out if there were any conditions tied to the previous variance. Mr. Peck stated that he would like to hear some of the conditions. Further discussion continued regarding receipt of the transcription of the minutes of the previous hearing. Chairman Tomlan asked that, if that was the Board's wish, a motion be made to that effect. MS. MACLEOD: I move that this case be deferred for a month for the purpose of assembling past information that might be pertinent. Motion was seconded by Ms. Cochran. Further discussion. Secy. Datz asked for direction from the Board as to what information they want. VOTE: Appeal 1958 has 5 Yes votes. Chairman Tomlan told Mr. Cavanaugh that the appeal would be deferred for one month until such time as we assemble . . the primary reason being that we see the history of the case in that the appeal was granted the last time around; we want to be as reasonably consistent as we can, but at the same time we want to be fair to the BZA MINUTES - APRIL 5, 1990 opposition. The information to be provided to the members of the Board would include the letter to the appellant, the present owner, transcript of the hearing, letters in opposition and any Planning and Development Board findings and recommendations, if there were any. Chairman Tomlan asked if there was anything else from the members of the Board. Further discussion. Appeal 1958 deferred until next month. APPEAL NO. 1959 Appeal of David Brumsted for an area variance for deficient front yard, a use variance for permitted accessory use under Section 30.25, Columns 3 and 11 of the Zoning Ordinance to permit the enlargement of a two-car garage into a four-car garage at 105 Cottage Place. The property, which is located in an R-lb (Residential) Use District, permits a private garage for not more than three cars. Additionally, Section 30.42 A and C do not allow accessory structures in the front yard, and they may not be placed less than 6 feet from any side lot line, therefore, the appellant must obtain area and use variances before a building permit can be issued. Appellant David Brumsted, 105 Cottage Place, presented the Board members with a drawing and stated that his original appeal centers around the fact that he has a collection of classic automobiles which he would like housed in a more secure, fireproof location. He stated that his original proposal was to double the size of his existing garage, but he is deficient in three areas and also because there is a maximum three-car garage permitted in an R-lb zone, a use variance is also required. After the letters were mailed, his neighbor directly to the south expressed his concern and he met with him to iron out some of the things. In somewhat of an unorthodox procedure, appellant stated he would like to modify his proposal, and asked the Building Commissioner if it was necessary to withdraw this appeal and re-submit a new one. Mr. Datz said that the appellant could ask for a modified appeal, which would involve just a one-car addition to that garage, and therefore, a use variance would not be required and the area variance just deals with the fact that there is a garage accessory structure in the front yard and a deficient front yard. He stated that the new proposal is significantly distant from the side yard that there is no longer a deficient side yard. Chairman Tomlan asked if appellant was under a time frame or schedule by which this has to be done. Appellant said no. Secy. Datz explained that he spoke to Mr. Brumsted on the phone and told him that he could either withdraw his motion and re-submit so that we could provide the different information, or he could request this Board to accept an amended appeal. Appellant stated that his concern was that, there's no life and death time constraint here except getting a building permit and getting the structure under way, but he felt that if he had to re-submit, he wanted to do it because the deadline was the end of last week and therefore the whole things goes two months ahead. Chairman Tomlan asked if there were questions from members of the Board. Mr. Peck asked what has changed. Discussion followed concerning the changes in the deficiencies. Chairman Tomlan stated that the bigger question comes down to the use variance issue. There's nothing in what has been 'BZA MINUTES - APRIL 5, 1990 suggested that addresses use or hardship. The appeal is dropping back, so it becomes a different appeal in a sense, and the question becomes first and foremost, now that we all understand what's happening, whether you are comfortable with the legal ad saying one thing and essentially something else being granted. Mr. Sieverding stated that the use variance aspect of it is fairly significant relative to what's out there and what the people in the Lurrounding area are trying to deal with. Also, he stated that there has been strenuous objection to that one side yard deficiency from the people who own the multi-family housing project located behind it relative to the right-of-way and whether having placed that four-bay proposal there was going to infringe on emergency vehicles and the like. Mr. Sieverding felt that this was a fairly substantial change to the proposal that could very well alter the reaction of the neighbors, and he would rather deal with it under less of a "cloud" than what is before him now, and he would rather it come back. Chairman Tomlan indicated that there was another option in addition to deferral, the Board could ask the appellant to withdraw and save himself the aggravation. Chairman Tomlan explained that rather than getting into a deferral situation, essentially make a clean start of it. Further discussion between the appellant and Board members as to whether, if he withdrew now, he could re-submit the notices in time for the meeting a month from now. Chairman Tomlan stated that, because this meeting was so late, he did not see any reason why the appellant couldn't re-submit providing it meets the public notification procedure. Secy. Datz stated there would be time. He stated that the Building Department's administrative deadline has passed, but if the Board directs him, he would accept the appeal and work with the appellant to get it submitted properly for next month's meeting. Chairman Tomlan asked if it was agreeable with the Board members and they agreed. He asked if it made sense for the appellant, who agreed. Appellant asked if it was necessary to discuss the objections to this proposal, and Chairman Tomlan suggested that he let them go for now, because it will be a different appeal and one would have to develop different arguments in any event. Appellant asked if the Board needed more specifics in regard to deficient side yard, stating in the proposal the exact footage. Chairman Tomlan asked that it be submitted in that manner. Secy. Datz stated that he wished to meet again with the appellant and prepare a new proposal outlining in detail what is being proposed, and make it clear in the legal notice, and make it clear in the letter to the neighbors. Chairman Tomlan asked the appellant to withdraw the case so that he could direct the Building Commissioner to work with you with the deadline. Mr. Brumsted stated that he withdrew the case. APPEAL NO. 1960 Appeal of Irene Petito for an area variance for deficient off-street parking and minimum side yard and rear yard under Section 30.25, Columns 4, 13, and 14 of the Zoning Ordinance to permit the conversion of the vacant playhouse to three offices at 423 First 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 from BZA MINUTES - APRIL 5, 1990 the listed deficiencies before a building permit and a Certificate of Occupancy can be issued. Appellants Jim Kerrigan, residing in the City and attorney representing Irene Petito. Irene Petito. Mr. Kerrigan presented his appeal stating that he has trepidation in terms of another theater going in the non-theater group. He further asked that the property file be introduced into the record as it contains information that the building was built in approximately 1961 without a variance when Mr. Golder was the Building Commissioner. He stated that he believed the parking was provided by parking off Adams Street, perpendicular to the street, but stated it was hard to say. Former uses were a laundromat and then a doughnut shop, both of which he believed had the same parking requirement as now. He stated that none of the side yard or back yard changes are before this Board; the building is not being moved. Apparently in 1981, the Feldman's and others made an application for a variance to convert the use from a doughnut shop, which had the same parking requirement as the current proposed use has - 4, 5, 6, or 7 spaces - to a theater which had a parking requirement of one space for every 5 seats, it may be 3 seats, according to the materials (unintelligible) The Petito Is have purchased the property. It appears that the side yard and back yard appear to be nonconforming uses. It's mostly, as many of you probably know, a relatively commercial area; the P&C is around the corner. There is a letter from a neighbor indicating there is never any parking problem; P&C parking area is massive, and I have also asked for an interpretation on behalf of my clients, the use is less intrusive and less non- conforming. The original building in 1961 has never been abandoned insofar as parking is concerned. Chairman Tomlan asked if there were questions from members of the Board. Mr. Peck asked if the appellant had thought about leasing parking spaces. Mr. Kerrigan stated that he did not believe that was a prerequisite in terms of the non-conforming use. The adjacent property is, I don't know what the parking availability is, leased to the P&C. For 10 years the 18 parking space there did not lease parking based on records in the Commissioner's office. The bowling seems to be full from time to time and I don't know how their parking is available. The dimensions of the lot and the size of the building have not changed since 1961. It has been considered, but they have not been successful in negotiating that. Mr. Peck stated that the zoning code has changed since 1961, and the Board has to deal with that now. Mr. Kerrigan stated that the zoning code usually recognizes existing buildings and uses. Mr. Peck stated that that doesn't preclude the Board from asking the appellant to get parking to satisfy the code, and that it appears to be a fairly simple matter from what Mr. Kerrigan has said. Mr. Kerrigan asked to do what, and Mr. Peck said to lease enough parking spaces to satisfy the deficiency. Mr. Kerrigan asked from whom, and Mr. Peck said from whoever owns the adjacent property where all the parking exists. Mr. Kerrigan stated that the adjacent property is a property that is owned by First and Adams; Mrs. Petito bought the property not her husband, who owns First and Adams or who is a principal owner, and is leased to the P&C national company with parking and with the BZA MINUTES - APRIL 5, 1990 prohibition of sub-leasing. Mr. Peck stated that the appellant has a problem. Mr. Sieverding asked if Mr. Kerrigan could first explain the site plan that was submitted that suggested four parking spaces on site. Mr. Kerrigan stated that whatever Mrs. Petito wants to put in doesn't . . three spaces for parking where the Building Commissioner would like parking, and that he was not happy with the suggestion of parking as laid out, but any way the Building Commissioner wants. . Mr. Kerrigan thought they had a number of spaces. Mr. Sieverding asked Secy. Datz if this configuration was feasible. Secy. Datz stated that the meeting he had with Mr. Petito in his office when the worksheet was done, only two spaces were shown, and he had not reviewed the plot plan in great detail. Chairman Tomlan asked if it was legal. Secy. Datz stated that from a quick look, it looks like it meets the requirements, but the square footage. . Secy. Datz questioned the spots labelled #2 and #3, and asked if they were on Adams Street. Mr. Kerrigan replied yes. Secy. Datz stated that they were right on the front yard, and that he could not quickly say whether they meet all the requirements of the Zoning Ordinance. When he originally looked at the plot plan, there were two parking places that were provided coming off of First Street. Secy. Datz stated that this was the first time he had seen this. Mr. Kerrigan stated that the appellants would be happy to do that if that's . Secy. Datz stated that he and Mr. Petito sat for some time and did his best to try and maximize the parking; the best that he could come up with was two spaces, at that time. Secy. Datz said he is not saying, at all, that these four spaces can't be property; still be short one. Chairman Tomlan asked if there was a way to turn the one space off of First Street and jam three up against the First Street facade. Secy. Datz stated that that would not work because of the width of the spots. Chairman Tomlan asked if the deficiency, at best, would be one space, and could be as much as three spaces, but the Board does not have any firm position if the Building Commissioner can't give us, a reading at the moment. Discussion followed about deferring the case until May. Mr. Kerrigan stated that they would go back to the original. Any way anybody wants to do it; we've been trying to do it for about five months. Mr. Peck asked Secy. Datz if the fact that they cross a sidewalk make any difference, and he said yes. Mr. Peck said there was no existing sidewalk; did you figure that as potential sidewalk or something. Secy. Datz stated that he was not sure about the curb cuts or where they are; Mr. Petito and Secy. Datz discussed this in his office when they put this together. He stated that because of the complexity of the Zoning Ordinance, he could not make a comment now whether this plot plan is appropriate or not; it would be necessary to look at it in the office and review it with the Zoning Ordinance. Chairman Tomlan stated that he thought the safer way would be to defer it, but there is another way if the Board does not want to defer it; one might condition and tell the Building Commissioner, essentially, and the appellant that there must be the requisite number of spaces, either on-site or leased off-site. Mr. Sieverding stated that if the conditional variance didn't work, the appellant has the option of coming back with what would essentially be new information. Chairman Tomlan asked the appellants if they understood. Mr. Kerrigan asked if the appellants had an opportunity BZA MINUTES - APRIL 5, 1990 to say something. He stated that five months into a process, and we don't know how many spaces are required on a building that has not moved since 1961 when it was built without a variance and the parking requirement for which is being reduced by 13 or 14 spaces; with all due respect. Chairman Tomlan, with all due respect, stated that this is not the Board's problem, and asked if Mr. Kerrigan understood that it's the appellants job to put the information in front of the Board by which a decision can be made, and the Board does not have any real reading from either the appellant or the Building Commissioner. Mr. Kerrigan stated that they applied for a building permit; 14 spaces fewer than have been there for the last 10 years. Chairman Tomlan stated that that was not the point. Mr. Kerrigan mentioned that it was a non-conforming use for 20, 30 years. Chairman Tomlan stated that that was not the point; you are required to have five spaces, and the Board wants to know where the five spaces are. Mr. Kerrigan asked what has changed since 1961? If that is a ruling of law, where were they in 1961. Chairman Tomlan agreed that that was a debate that goes on for some time in ancient history. Chairman Tomlan asked Mr. Kerrigan if he would prefer to withdraw and come back? Mr. Kerrigan said no. Chairman Tomlan asked if he would prefer to agree with the condition that five spaces be provided, either on-site or off-site, at the Building Commissioner's approval. Mr. Kerrigan stated that they would park anywhere on site that the Building Commissioner wishes them to park; they are five months into an application for a building permit to reduce the parking demand by fourteen spaces. Chairman Tomlan stated that further provides will be that if it is not on-site, that parking will be provided off-site within the provisions of the Ordinance, and there are provisions within given distance. Mr. Kerrigan stated that if that were true in 1981, 1977, or 1961, the previous three times this issue has been here, of course. Chairman Tomlan asked him if he was agreeing, and he asked if he was agreeing to what. Chairman Tomlan stated to the notion of the conditions. Mr. Kerrigan asked if it was that there was some requirement that this lot requires parking somewhere else. Chairman Tomlan stated either on the site or off the site. Mr. Kerrigan said he didn't . . No. Chairman Tomlan asked if he was not agreeing to that. Mr. Kerrigan said no. Chairman Tomlan stated that the Board had everything in front of them. Mr. Kerrigan stated that he didn't know what had changed in 30 years. . . Mr. Peck stated that the zoning code had changed in 30 years. He stated that there was a zoning code in 1961 to which Mr. Kerrigan replied that that was his point. Mr. Peck stated that that was not a good point because the Board is here to enforce the zoning code as it is now. Mr. Kerrigan made mention of an application for interpretation. Mr. Peck stated that it is not grandfathered; there is no grandfather here because every time you apply for a zoning code that changes. Every time you apply to appeal the zoning code that changes. Mr. Kerrigan stated that the building has been there. Mr. Peck stated that it didn't matter; every time you want to change the use of that, that has to be reviewed in light of what's gone on before. Mr. Sieverding stated that if the theater was a legal use the last time the zoning was revised, then you could continue to do theater under the grandfather rights, that's all. Mr. Kerrigan stated that they would make them BZA MINUTES - APRIL 5, 1990 law offices and they'll all be theater. Mr. Sieverding asked if this proposal for a conditional variance was unacceptable to Mr. Kerrigan and his client. Mr. Kerrigan said yes. Chairman Tomlan asked if there were any other questions from members of the Board. There were none. He then asked if there was anyone else to speak in favor of or in opposition to the appeal. There was no one. MR. SIEVERDING: I move that Appeal No. 1960 be denied. Motion was seconded by Mr. Peck. Findings of Fact: 1. The appellant is proposing a change of use which brings with it a requirement to meet the current City of Ithaca Zoning Ordinance. 2 . While the property has area deficiencies, f(-,r which a reasonable case for practical difficulty could be made, the proposed use also generates a parking demand which the appellant has made no effort to attempt to satisfy, nor argue why providing the required parking creates any kind of difficulty. There was no further discussion, and a vote was taken. VOTE: 5 Yes; 0 No. Area variance denied. APPEAL NO. 1961 Appeal of Ronald and Margaret Amici for an area variance for deficient front yard and side yards, and a use variance for permitted primary use under Section 30.25, Columns 2, 11 and 12 of the Zoning Ordinance to permit the subdivision of the property into two parcels at 307-309 Dey Street. The single family dwelling at 307 Dey Street is located in an R-2b (Residential) Use District and has grandfather rights for four unrelated individuals, which would be terminated if the property is subdivided; therefore, under Section 30. 57 the appellant must first obtain area and use variances from the listed deficiencies before subdivision approval can be given. Appellants Edward Mazza, Attorney representing Mr. and Mrs. Amici with offices in the City of Ithaca. Mrs. Margaret Amici lives next door to this at 313 Dey Street. Mr. Mazza stated he assumed that the Board received the survey map and the written submission that they have made identifying the deficiencies. He stated that the structure has existed for 60 or 70 years, and they are not proposing to add any structures or do any construction; and simultaneously with this, they are trying to achieve a subdivision of 307-309 Dey Street. He stated that approximately 100 years ago it was laid out as two lots. 309 has been sold with 307 and used as a side yard over the years. It is currently being used as a side yard to the Amici 's residence at 313 Dey Street. Appellant is requesting two variances that are area variances; one is a side yard variance and the other is a front yard variance. There will be no increase in the deficiencies in any way; the structure will remain as it has been for 60 or 70 years. Also, a use variance is being requested. "BZA MINUTES - APRIL 5, 1990 The property is currently used as a residence for four unrelated persons, and appellant is asking that that remain the same. The structure has four bedrooms in it and has been used this way for numerous years with permission, or under right, under the City Ordinance by being grandfathered in. Appellant would like to subdivide these lots, and as such, the variances are required. With regards to the use variance, Mr. Mazza said there would be some hardship if it was not granted, in that this is the way the structure has been used for years; there are four bedrooms there, and would not be creating any new bedrooms or any new uses other than what's been used already. This is unique; it's not something that's shared by others because most of the other properties do not have another lot next door to it that they need to split off as is this case. He stated that he didn't think it would change the spirit of the Ordinance. It has been this way and the character of the neighborhood will remain the same as it has been for the last 15 years at least, that the Amici's have owned it, and prior to that. Mr. Mazza asked if the written material would be added to the record. Chairman Tomlan said yes. He asked if there were any questions from members of the Board. Mr. Sieverding asked how long four persons had been occupying the property. Mr. Mazza stated that the Amici 's bought the property in 1975 and it has been used that way since then, at least; before that, he wasn't sure. Mr. Sieverding asked if that was four unrelateds. Mr. Mazza said yes, he believed that was what their certificate shows. Mr. Sieverding asked that if at that time it was a legal conforming occupancy. Secy. Datz said no that the property has grandfather rights to have four unrelated occupants. Ms. MacLeod asked if they would sell the second lot as a separate lot. Mr. Mazza stated that the Amici 's had put their property at 313 and 307-309 up for sale, and has been up for sale for about a year. They have been unable to sell it as one unit, so they are attempting now to break those units down to make it more affordable for someone to buy housing, and this is the way they plan to do it. They are offering to someone who could afford to to buy 313, if the subdivision is granted, in conjunction with 309 and maybe they could use that as their side yard as the Amici's have used for years. They want to be able to offer it separately to make it more affordable to someone. Chairman Tomlan asked that someone on the Board address economic hardship; this is a use variance. Mr. Sieverding stated that it is one which is grandfathered. Chairman Tomlan asked that it be on record before findings of fact are made. Mr. Mazza asked what the question was. Mr. Sieverding stated that one of the conditions for granting a use variance is that the appellants demonstrate economic hardships relative to if you were to lose that right, what does that mean as far as that property is concerned. Mr. Mazza stated that if they lose that right, then it will potentially cut the income down on that property and the value on that property by 25%. He stated that the creation of the new subdivision line really doesn't do anything to effect that; there is no more deficiencies there, and the lot has been subdivided that way for numerous years. That's why it has two different street addresses. Making them not use a bedroom will cut back their potential income, which would cut back the value; it would be a hardship to them since that's the way it has keen with a -BZA MINUTES - APRIL 5, 1990 certificate of occupancy for numerous years. Mr. Peck asked if it was three different pieces of property at present or not. You're telling me because it needs a subdivision, it isn't, right? If this was three different tax parcels, it wouldn't have to have subdivision; it would already be that way and that would be the end of it. Is 307-309 one tax parcel, or not? Mr. Mazza stated that it is one tax parcel. 307 and 309 are one tax parcel that they are attempting to subdivide. There are two different addresses because that is the way it was laid out over 100 years ago when the City of Ithaca subdivision maps back then. Ms. Cochran asked if there had ever been a structure, and Mr. Mazza said not to his knowledge. He said that the Amici's had lived next door for 23 years and there hasn't been anything. Chairman Tomlan asked if there were further questions from members of the Board. Mr. Sieverding asked if the hardship argument that was presented was one of lessening of potential sales price if the property cannot be occupied by four unrelated persons. Mr. Mazza stated lessening of the potential of a sale period because it could not be purchased as two separate units making it less affordable for people to purchase if they have to purchase the whole thing, but if they can divide it up. Mr. Sieverding stated he was considering 313 in itself as the one that is for sale. Mr. Mazza stated that they are all for sale. Chairman Tomlan asked for further questions from members of the Board. There were none. Chairman Tomlan asked if there was anyone else who wished to speak in favor of or in opposition to the appeal. There was no one. Mr. Sieverding asked if there were two separate variances to deal with. Chairman Tomlan stated that it could be or if he wanted to handle it all in one motion, it would be fine; but just make sure when dealing with use that clear economic hardship is addressed. Mr. Peck asked if the lots themselves met the minimum lot size for the City according to the worksheet. He wasn't sure it was necessary to meet the grandfather on the house if the lots were split, if the subdivision were granted in this case. This is in an R-2b (residential) use district for single family dwellings and he has not been convinced that there's a hardship there in the case of four unrelated occupants, at any rate. He didn't see any reason why it could not conform to the zoning code at this time. Mr. Sieverding stated that the point is if the use variance is denied and the area variance is granted, what happens to that property; they need to vacate one person to make it conforming. Secy. Datz stated that this, or if they could find a family. Mr. Sieverding stated that would be for rental or for sale. Secy. Datz stated that if the grandfather rights are lost, and they don't receive a use variance, it would have to be a single family home for a maximum of three unrelated, or a family. Chairman Tomlan asked if it was clear. Ms. MacLeod said it was not clear at all. Mr. Peck explained that it was a side yard for the wrong house, but the two properties that are currently together are 307 and 309; the Amici's presently own the two properties. Mr. Sieverding explained that in 307 there are four unrelated persons, and the whole question of there being four unrelated persons is that it is not consistent with zoning, and is brought into question by doing the subdivision. If they didn't do the subdivision, they could continue to have four unrelated there; if they go ahead with the subdivision, there is a -BZA MINUTES - APRIL 5, 1990 question of economic hardship. Ms. MacLeod asked if it was all right for a single family house; Mr. Peck replied yes, it is an R-2b zone. Chairman Tomlan asked if it was going to be handled as area and use. Mr. Sieverding said yes. MR. SIEVERDING: I move that the area variance in Appeal No. 1961-A be granted. Motion was seconded by Mr. Peck. Findings of Fact: 1. The property currently has two deficiencies, a front yard and a side yard. The front yard deficiency cannot be corrected without moving the house, which is impractical and unfeasible. The side yard deficiency is on the side of the property opposite from where the proposed subdivision is to take place, and is not at all affected by that subdivision; therefore, there is no practical remedy for that deficiency. 2 . Granting the area variance is in the spirit of the Ordinance and the character of the neighborhood. Further discussion followed. Mr. Peck asked if 3 foot clear from the garage to the property line - to the new property line will that be a problem? Secy. Datz didn't seem to think that it would be a problem; the requirement is 3 feet. There was no further discussion, and a vote was taken. VOTE: 5 Yes; 0 No. Area variance granted. APPEAL NO. 1961-B Chairman Tomlan asked if there was any further discussion on the use variance. Mr. Sieverding stated that it relates to the appellant's ability to either maintain or sell the property in a configuration that is consistent with the Zoning Ordinance. He did not feel that a strong case was made for their being able to do that; the argument made was the property is too expensive to sell in part because it is too large a parcel and therefore by subdividing it becomes a more saleable property. The other Board members agreed, and Chairman Tomlan asked for a motion. MR. SIEVERDING: I move that the use variance in Appeal No. 1961-B be denied. Motion was seconded by Mr. Peck. Findings of Fact: 1. The appellants have not made a clear demonstration that there is in fact economic hardship related to using the property in a manner that is consistent with current zoning regulations which allow for a family or up to three unrelated individuals. 2 . The hardship argument that has been presented relates more to the sale of the property, and making it more saleable by virtue of a subdivision, which would make 307 more attractive, not necessarily related to the particular occupancy within #307, therefore the variance is denied. -BZA MINUTES - APRIL 5, 1990 3 . Denial is consistent with the Zoning Ordinance and consistent with the character of the neighborhood. There was no further discussion, and a vote was taken. VOTE: 5 Yes; 0 No. Use variance is denied. Chairman Tomlan adjourned the meeting for 10 minutes. APPEAL NO. 1962 Appeal of Mickey LoPinto of Polygon Associates for an area variance to exceed 25% of the total area of the front yard for parking under Section 30.35, Subdivision 5-c of the Zoning Ordinance. The parking at 358 Floral Avenue is located in an R-3a (Residential) Use District where the appellant is proposing to construct two buildings containing six duplexes in each building, which is a permitted use. An area variance is required for the proposed parking configuration before a building permit can be issued. CHAIRMAN TOMLAN: Good evening. If you'd begin with identifying yourselves and where you live or work. MR. LOPINTO: My name is Mickey LoPinto, and I appreciate the Board's decision to hear my case one more time because at the initial appeal I feel that there was some information that was unavailable to me and particularly the more technical questions about the site including the practical hardships of the site. I brought with me my landscape architect, Peter Trowbridge and my attorney, James Salk to represent me. CHAIRMAN TOMLAN: Well, in that we assume this is going to be a new hearing; we're starting from scratch. This is a different appeal than the last appeal. MR. LOPINTO: It's a new appeal. CHAIRMAN TOMLAN: Right. So you want to begin from the beginning and tell us first off how it's a little different, then proceed with what you're asking for with the area variance. MR. SALK: My name is Jim Salk. I 'm Polygon's attorney. My office is in the City of Ithaca. This is an application for an area variance so the standard to be met, the burden that is imposed on the appellant, is to show practical difficulties. In fact there are a number of practical difficulties which make it difficult and impractical to comply with the strict letter of the Zoning Ordinance requiring no more than 25% front yard parking. The topography and terrain of the site in question is an incredibly difficult one to work with. It forces the building of the structures to the front of the site as there is a steep hill in the back. In order to build at all on this property, you'd need to carve out a section of the hill, a substantial section of the hill,, and in some way or another retain the earth behind the hill. The only practical way to do that is by BZA MINUTES - APRIL 5, 1990 facing the buildings up against the cuts in the hill to retain the earth. The cost of a separate retaining wall, or an additional retaining wall, a larger retaining wall is prohibitive as will be more fully discussed by Peter Trowbridge, the landscape architect for the project. In addition, there were a couple of letters written on behalf of the project; one by Paul Mazzarella of the City Planning Department, which indicates . . and another by Susan Blumenthal of the Board of Planning and Development of the City of Ithaca, both of which indicate that a number of alternatives were considered and rejected for various reasons which will also be more fully explained by Peter Trowbridge. I believe both of those letters are in front of the Board. If not, we'll be happy to supply them. CHAIRMAN TOMLAN: We have them. MR. SALK: The . . . In the event that the area variance is not granted, the project will suffer significant additional costs in engineering, architecture for reconfiguring the parking in a very difficult site. In addition, and I think very importantly, the project in conjunction with the City wishes to apply for, and hopefully obtain, the Community Development Grant of which this project would be a part. The deadline for that is fast approaching; the process of getting to the Board of Zoning Appeals has been long and fairly tortuous, and if the variance is not granted, it is quite likely that the Community Development Grant for this project and the City would be passed by. CHAIRMAN TOMLAN: Stop right there. We heard all that last time. What I asked you to do, please, is address how this particular variance - this granting of this area variance is different than last month's, and specifically, I would like to know whether the site plan introduced last month is the same as the site we're introducing at this time. MR. SALK: The site plan is the same. CHAIRMAN TOMLAN: Then please address how the variance is different. MR. SALK: At the last hearing you indicated . . The Board indicated that it needed additional facts regarding potential alternatives. Those were not available at the last meeting. Those additional facts are now available. In particular, the Board cited a specific alternative that, at the time, the Board thought might be workable in such a way that the variance would not be needed. We've now asked the landscape architect to supply us with information regarding that specific alternative. CHAIRMAN TOMLAN: Perhaps we can turn to the landscape architect then and specifically he would address the question of how this month's site plan is different from last month's site plan, and what additional information you could provide us with respect to that. BZA MINUTES - APRIL 5, 1990 MR. TROWBRIDGE: The additional information really is a set of alternatives, and I think that was the discussion as I listened to the tape even though I wasn't present at the last meeting was the fundamental discussion of the Board was considering whether all or as many practicable schemes had been investigated. What we're presenting tonight is new information that is available to you to perhaps make a better or more complete . . have a complete understanding of the kinds of schemes that were discussed and reviewed over the past year and a half, coming to the conclusion or come to the point of having the site plan that you have had in front of you finally approved by the Planning Board. So, it's that discussion that I 'd like to go through if the Board would like to hear that. CHAIRMAN TOMLAN: Yes. Herman? MR. SIEVERDING: Just to bring up an additional point. You're right, I mean it seems (unintelligible) that there were some alternatives, you know, that hadn't been explored. I think related to that there's a question too, and I think you've already heard that in the tape as well, to the extent to which, you know, the parking that you have practical difficulty; that that practical difficulty is self-imposed by the number of parking spaces that you (unintelligible) on the site. MR. TROWBRIDGE: We've investigated only 24 parking spaces to look at what are the issues that relate to front yard cover, 24 spaces only as required by the zone. MR. SIEVERDING: I 'm just pointing that out so as you go through your presentation you address those two issues. MR. TROWBRIDGE: That's right, so it's clear. Absolutely, it's clear. We're asking the Board to give a variance on the site plan with 36 spaces, but all of the investigation that we'll discuss is based on 24 parking spaces and not a self-imposed hardship of 36 spaces. MR. SALK: But, I might add to that point if I 've leave to do so that the self-imposed hardship is, in an area variance, is not dispositive?, but is only weight in the ballast to balance the . . against the application. In addition. . . MR. SIEVERDING: I 'm sorry, could you explain that again. MR. SALK: Sure, you . . In the context of an area variance, self- imposed hardship is . . . you can have self-imposed hardship; that's all right, it's allowable. It's not something that, if you find self-imposed hardship, you must deny the variance. Quite the contrary, the cases (unintelligible) clearly indicate that finding of self-imposed hardship, if that is what you find in this situation, although I don't think that it is, is not enough weight to deny the variance on that fact alone. You need to find other facts, in particular for an area variance, once you find that there BZA MINUTES - APRIL 5, 1990 are practical difficulties, I think the burden shifts from the appellant, the applicant, to the Board to find some overriding public need to deny the variance. So, in your consideration . . . CHAIRMAN TOMLAN: Counsel, with all due respect, I don't think you want to try to spin out that point of law. Okay? I 'm trying to be on your side on this one, okay? Don't try to push that too far. I 'm trying to be on your side. MR. SALK: I 'm not trying to push it too far, I just wanted to explain it. CHAIRMAN TOMLAN: I understand. Now, Peter if you'd continue. MR. TROWBRIDGE: The second set of issues that related to new information, we were able to review the selected site plans, that we'll talk about this evening, with Brian Wilbur and to get his reaction and input as well, and there's a letter attached as part of your packet from Brian regarding review of these and other site plans. We chose these as a selected group, and as you know (unintelligible) we've gone through the design processes either on a home or have worked with designers that you go through numerous plans. . . If there's not a letter from Brian, I 'll pass this around. MR. SIEVERDING: Yes, I was going to say we didn't get that. MR. TROWBRIDGE: Okay. It basically describes the review that we went through with Brian Wilbur. In any case, that's additional information that also relates to the plans in question. But my point is that these are selected as several types . . Obviously, during the design process, you might go through twenty or thirty more iterations, slightly different, fundamentally different, but I am presenting these tonight really to give you a clear reading of some types of plan. Maybe the best thing is to take if off the wall so you can look at it in detail. CHAIRMAN TOMLAN: You better stay close to the mike, Peter. If you'd bring it over, because we're losing you on the tape every once in awhile when you walk away. MR. TROWBRIDGE: Okay, I 'll bring it over here. MR. PECK: Mike, you might want to aim your microphone a little bit more toward Peter. MR. LOPINTO: This one? SECY. DATZ: That one's not working. MR. PECK: So you can pick it up. CHAIRMAN TOMLAN: Right. That one's working fine. The enter one's working, the ends aren't. 'BZA MINUTES - APRIL 5, 1990 MR. PECK: Before you start, could I just say again what Michael said in the beginning. MR. LOPINTO: Yes. MR. PECK: My understanding of what this Board sent this appeal away with the last time was what we didn't see was a conforming site plan and a comparison to the site plan that you want, and a demonstration of the practical difficulties as a result of that. MR. TROWBRIDGE: Yes, and that's . . MR. PECK: Let me just say something else. I see lots of people out there and this is the last appeal, and I would imagine that one of the things that's going to come up now is the increased traffic that's going to be generated by having an extra 12 parking spaces, and things like that. In which case, you're self-imposed hardship does become a factor. Okay? I 'm just telling you that before you start telling us a whole bunch of stuff that we don't really care about. What I really care about is do you have the thing there that looks like . . that conforms to the Zoning Code; why does your plan work better than that one, and what are the hardships in relationship to those two plans? Is that a fair statement? CHAIRMAN TOMLAN: It's a fair analysis. MR. TROWBRIDGE: Just to back up and clarify a couple of things, Jack. I don't think that parking spaces generate traffic. I think units generate traffic. MR. PECK: Well, that goes along . . You're exactly right, and that's going to be one of the considerations. MR. TROWBRIDGE: So that the program of the housing is a traffic generator, and we're not . . None of these schemes alter the density of the housing. What we're basically presenting to you is parking spaces that are required by the zone in different scenarios and talk through some of the difficulties of each of the selected scenarios that are shown. These follow the letter that you have in front of you so you could . . I 'm going to paraphrase the text and you can sort of follow along with the diagrams. Alternate 1 is a plan that was discussed last time, but it's shown here again really as a way of demonstrating more clearly some of the difficulties in developing the units towards the front, and the parking towards the rear. In this case, there's some cover in the front yard, but it's negligible. It's really the two entry roads; we're not saying there's no cover, but all of the asphalt in front of the face of either one of these units, but it's a negligible cover. The difficulty is, as you visited the site, and as we graded this out that the rear retaining walls, in order to allow for that parking, would begin to be close to two stories high. I mean, very substantial retaining walls any place in the City of Ithaca, and the cost is considerable. As we calculate them, they're approximately $50 - $60, 000 additional cost, and placing those retaining walls and BZA MINUTES - APRIL 5, 1990 putting the parking towards the rear. A couple of schemes that were kicked around last time were the idea of getting more parking towards or in the side yard between the units. We have a couple of issues . . I 'll try to explain something that's fundamental that happens with some of those design ideas. When you push the units ahead to get the parking behind, a couple of different things happen; the area in front of the units gets smaller, so every square foot of asphalt you have actually creates more percent cover, because as you move the unit to try to get the parking behind; if you try to do that, the front yard gets small and so whatever asphalt you have left actually means more. And so in a configuration like this for instance, in Alternate 2A, we have over 25% cover, and that's fundamentally what's happening. A couple of things that are . . several other things that are problematic with this scheme is that, in terms of fire access, these two lane ways would not be acceptable to Brian Wilbur for access to the buildings. Both of these are 10% grade, and the Fire Chief also would like to see 25 feet away and not exceeding 35 feet to have a relatively level platform to set up his equipment so that either we can pull these out further to get a flat zone in front of the buildings, and subsequently increasing the front yard cover, or we can bring them in tight and then what happens we start to get units on either end that don't have adequate fire access, or there are units towards the center which also have parking that's . . or access that's too close to the units in terms of having best fire access. MR. SIEVERDING: Are you curb cuts in this scheme the same as they are in . . . MR. TROWBRIDGE: No, they're not . . Actually, we pulled them in as close as we could get them and still have the 24 parking spaces. MR. SIEVERDING: Right. By pulling them in closer together, don't you then increase the grade? MR. TROWBRIDGE: Well, what happens is that we do, but we still graded it out. What happens, Herman, I guess between these two points outside of that we can still get 10% and 3%, but the only flat area we have is really in this center zone in terms of setting up fire equipment. So the outside units are really not in an area where the Fire Department could set up their equipment adequately. So we went from this and said well, there must be a better version of that. We then tried to correct the units, taking fundamentally that same scheme, correct the units to be in line so that there was 25 and not greater than 35 relationship between the fire lane and the units, and actually the coverage got worse, because once again we're pushing the units . . By pushing the units closer, the front yard gets smaller and subsequently every square foot of asphalt exacerbates the coverage issue. Is that clear to everyone? If we try to move the units ahead to bring the parking back, the front yard gets smaller and then the percent cover gets greater. And that's what happened in this scheme as well. In addition to that I think in any one of these schemes, you need to recognize that retaining walls would be important; necessary because right now as -BZA MINUTES - APRIL 5, 1990 you can see from the architectural section, that there's over 10 feet of grade change in the dimension of the building and so when we start to pick up that dimension, we start to have retaining walls that are approximately 10 feet in height, and if we use a standard $20 per square foot face for a retaining wall, that's what we began to get and it becomes a difficult situation to pull parking in. The other thing that happens, it's probably unrelated to your concerns this evening, is that we tried to get a majority of the on-grade units handicapped accessible, and we lose a big percentage of handicapped accessible units. As you can see, and this is probably. . . maybe it was made clear to you, maybe it hasn't been that these are stacked duplexes. Units on the bottom are all handicapped accessible when they have a relatively flat grade in front of them. Once we pull the units apart, when we get into a situation where we have the steep ramps coming up to the front of those units, we subsequently need stairs, and again that may be unrelated to the discussion, but it's important to understand that the intent was to create a large percentage of small, affordable, handicapped accessible units, and we tend to lose that when we have the ramps either in this situation or this situation. Another condition . . Let's say we have all of the 24 spaces in the front yard and we try to bring the ramps in as close as we can, we still. . we end up with situations that are less than desirable. The intent, and certainly the preference of Brian Wilbur, is to have again a flat zone in front of all of the units - not absolutely flat - but something that's certainly less than 10% to set up outriggers on the fire equipment, and subsequently we have a very difficult time; we have not found a scheme where we can get less than 25% front yard cover with the required one parking space per dwelling unit in any of these, and these are just again representative of types. We do lots of these. We would go through a dozen a day and try to find best schemes, and so what we tried to show here in the demonstration is some kinds of types. Something else I think that's important is that we've drawn cross-sections to see what you can see from Floral Avenue. In fact, you don't even see the first story of these units; what you can see from Floral Avenue is the second story and above which suggests that the parking area is really not seen from the street. You'd have to have some elevated position to see the parking lot from the street as it's proposed, and as the grading is proposed. In addition, we've hedged the front so that any possibility of seeing cars from the street at all would be eliminated. So, the parking surface would never be seen from the street. Some cars, without the hedge, the fronts of some of those cars may be seen and what we're now doing is blocking any visibility of cars from the street so the passerby, unless you're on the site or in the units, will not see the cars on the street. One concern, I guess we have, of having parking limited to 24 spaces as required by zone is that, as all of you probably know if you live in a . . if you're a couple or live with someone else that people in Ithaca tend to have more than one car per family, and the difficulty we're going to have on this site is that we will attract more than 24 cars. Unlike other sites in the City of Ithaca, there is no on-street parking on Floral Avenue due to the way it was engineered and constructed several years ago, and there's no around-the-corner -BZA MINUTES - APRIL 5, 1990 parking; there's no, I mean, you almost have to go to Pete's to find another place to park that's not been preempted. So, our concern is that if we don't have adequate parking, and what we feel is adequate is 1.5 parking spaces per unit realizing that some of these units will have no parking, particularly the first level flats; we're trying to encourage people not to have cars, in fact, which is why this bus circulation. . . The bus has no impact on the circulation itself; the fire trucks (unintelligible) driving radius and fire lanes. It just happens the bus also can use that same circulation route. So, we're encouraging people to have fewer cars on the site, but unless we have adequate parking, people will illegally park in the fire lane. Where I would logically park is right in front of the units. Once that happens I think that the whole issue of health, safety, welfare starts to break down, and so what we're asking the Board for is an area variance. Trying to make a demonstration is very difficult. I have not found a solution where we can get the front yard area coverage that is acceptable to the Fire Department; that is acceptable in terms of any practical site plan issue less than 25%. If we limit the parking spaces to 24, we can guarantee that there will be illegal parking in the fire lane, unfortunately, and I think it will exacerbate some of the conditions that we're trying to sort of alleviate by having some additional parking. There's no parking for guests. As I said, with one space per unit, you are not going to have adequate parking for the households that exist on the site. Our client also has reduced the density to a point where he feels that the project is just doable. Obviously, the zone allows for much bigger density, and again as a part of the site plan review, Mick and his group have gone through several iterations of density of housing; how much can we get on, how little can we get on, and make this a project that's doable. Make some of the units, a percentage of them, affordable. So, I think what we find here is a balance of density of units, number of parking spaces, adequate area just to . . for health, safety, welfare; to set up fire vehicles and it's been our experience working on this project that there are many difficulties in the site, some of which were discussed last time, perhaps some of them need to be reiterated. It's a very thin site, we can't double load the parking in front, that the fire lane has a width and radius that is necessitated in the configuration that you see in the plan; that slopes at 10-20% of the site overall do create the necessity for retention (unintelligible) site plan. The site plan that was approved by the Planning Board also has detention walls on it. So, I believe that's at least a summary of, I think, additional information that the Board was struggling with at your last meeting. CHAIRMAN TOMLAN: Is the physical configuration of the units and the number of parking spaces the same as it was last month? MR. TROWBRIDGE: Essentially the same, yes. MR. PECK: Yes. I can answer that. Yes. CHAIRMAN TOMLAN: Thank you. BZA MINUTES - APRIL 5, 1990 MR. SIEVERDING: In scheme #3, where you show 24 on-site parking spaces, I mean, one comment you made is that you are concerned about overspill. Hasn't the City developed little parking areas on the left side of Floral Avenue. MR. TROWBRIDGE: No. (unintelligible) The closest ones are really probably 300 yards away, and there's no sidewalks along Floral Avenue to connect them. So, people would . . I 'm not sure how they would get from there. But, those are also, really, if you look at them, they are pretty much preempted by the housing that already exists that doesn't have parking. MR. SIEVERDING: Okay. Again, if you know, I 'm still not clear actually why by moving your curb cuts further out in both directions, you don't get over this sort of 10% grading difficulty you have with the Fire Department, and still provide sufficient access off the driveway. MR. TROWBRIDGE: But see the arc is . . The arc is the same, and the grades are fundamentally the same across the site. So we can grade 10%, 3% in that arc, but what we are doing is moving it out or moving it back, so what happens is that grade relationship, let's say, that changes, but it doesn't change fundamentally. MR. SIEVERDING: No, I was actually thinking of the entrance to the parking area remaining the same, but your curb cut coming out and then sort of flattening out that road. MR. TROWBRIDGE: Yes. Again, some of these don't work as well and those are some of the issues that we haven't completely investigated because we are finding that some of these schemes just didn't work. So, I have to admit that a lot of these schemes. . Again you do numerous iterations a day, you don't take them to an engineering level; you take them a point to know whether they're reasonable and feasible, practicable, and then you discard them. And that's what's happened in many of these schemes is that sometimes the grades just didn't work either. In addition to the front yard cover, you have other kinds of difficulty in making the plans work. MR. SIEVERDING: And the difficulty with Scheme 2A. . Seems that the position of the building has changed somewhat. If. . Sort of. . You know, if the extreme ends of the building were brought down to be more parallel to MR. TROWBRIDGE: Which is what we did here. That's what this is, Herman, we actually tried to. . We left the buildings just as they were on the site plan and said what happens if you just try to tuck. . There's a relationship in the back; we have a fixed relationship to the rear lot. This is as far back as we can push the buildings legally. It's what we said is if we move that to have a better relationship, then the front yard gets smaller and the percentage goes way up, and then the 24 spaces we have over 32, 32 . 6% cover. It actually gets worse from here to there, because the front yard is now smaller, if we pull the buildings down to meet the BZA MINUTES - APRIL 5, 1990 street. Where here, you actually have a bigger front yard so every square foot actually makes a lower percent even though the configuration is pretty. . MR. SIEVERDING: So, it basically (unintelligible) off your front yard if you do that. MR. TROWBRIDGE: That's right. That's right. MR. PECK: I know this is probably going to be addressed later, but one of the points that was brought up the last time was that because it's a Community Resource Development Project, as well, that there's some expectation that some of the occupants at least of this housing area will be low income. Is that correct? Low to moderate income? And you're bring the bus in to serve those people, attempting to. . MR. SALK: That's up to the City, I don't think we. . MR. PECK: Well, okay but that's the point of having that and my question is, doesn't this really conflict with your notion that you need 36 parking spaces. MR. TROWBRIDGE: Well, it's still. . MR. PECK: I mean, if that's the point of the project. . MR. TROWBRIDGE: Well, Jack, it's still . . . If you think about one parking space per unit, I guess, it's been our experience that that doesn't work in this community and virtually any community where you have households. In the upper units, actually large units, where you limit cars; no visitors to the site. Let's assume there's nobody ever come to visit anybody here. I 'm not being facetious. MR. PECK: No, I understand. MR. TROWBRIDGE: And then, you talk about. . You're saying that you have one car per family. It's our experience that that is not attainable even with the percentage of these units that have no cars; so with the 36, what we're hoping for is that we can get an average of 1. 5 cars per household, meaning some have none and some have two, which is a reasonable assumption and that would be, from our experience, a rather minimum but probably workable number of cars. CHAIRMAN TOMLAN: Peter, excuse me a minute, we have to change the tape. MR. SALK: Remembering, also, that this neighborhood (unintelligible) that it has no on-street parking that is available. MR. PECK: I know that. I 'm aware of that. MR. SALK: So that all the parking has to be on-site. Although the Ordinance, I think, was written with the assumption - fair BZA MINUTES - APRIL 5, 1990 assumption - that the rest of the City that there would be some off- site, on-street parking, but in this site that's not the case. CHAIRMAN TOMLAN: Further questions from members of the Board? MR. SIEVERDING: Yes, I guess, if. . Sort of reviewing these three schemes. I mean. . Your notion of the practical difficulty related to these things, really, in large measure has to do with the grading that some of these site plans create relative to emergency vehicle access. MR. TROWBRIDGE: Which is, I guess, our primary one in terms of liability litigation issues. And also be able to fulfill the obligation of health, safety, welfare accomplishing fire access to the site. So that primarily drove the need for the lane way that goes through the site. Obviously, that serves parking as well. But first and foremost, if there was no parking on the site, we have a big percent of the front yard cover with just this lane way. Let's take out. . MR. SIEVERDING: The (unintelligible) . MR. TROWBRIDGE: Let's take out all the parking. What's left is required for fire access, and so a big percentage of this front yard will always, always, be fire access. The majority of the front yard cover is fire access, and the parking, frankly, is not a big percentage of the cover. When we look at the area, and this is not a good scheme; this doesn't adequately service the buildings in terms of fire access to those buildings. So, actually, none of these do it very well. This is probably, well the scheme that we are proposing, actually has a flat zone over the. . Again, it's not flat, it's about 3-4% over the face of the building but that's really what's required for adequate fire access. We could take all the parking out and have them calculate that. Take it all out. You're probably going to have well in excess of 20% cover for fire access only, no parking. MR. SIEVERDING: Any kind of access. MR. TROWBRIDGE: Any kind of access. I mean, buses are irrelevant; there is buses, but the fire vehicles drive the radius. MS. MACLEOD: (Unintelligible) MR. SALK: In addition, this neighborhood is another unique quality, or at least unusual quality, that there are no back yards. Not only on this particular site, but all the way to the Octopus, there. . This. . . When the Ordinance was passed, it was with the assumption to some degree, I think, that we're talking about a site that had back yard, side yard, and front yard, which is the normal way sites work. This particular site, and any of the sites straight through to the Octopus, have no back yard. There's a steep hill there. The cost related is an additional practical difficulty. And the fact that this project was required to undergo, as in accordance with the new BZA MINUTES - APRIL 5, 1990 ordinance regarding site plan review, a rather thorough analysis that the developer also has to comply with, not only the zoning. That's a practical difficulty as well. MR. SIEVERDING: Site Plan Review is a practical difficulty? MR. SALK: It's a practical difficulty, yes, to . . It's a very practical difficulty. But, he's gotten through that difficulty, but the difficulty arises in not only going through that, but going through that in a manner that also complies with all the provisions of the Zoning Ordinance. He did pretty well, just missed one. MR. TROWBRIDGE: And just one last comment. . . MR. SIEVERDING: Relatively major one. An area, in fact, I think it's the first time we've actually looked at. . You know, this is a new addition to the Zoning Ordinance, just passed in May of 1988, it's the first time we've actually dealt with a zoning variance for this particular revision to the Zoning Ordinance generated by the same people who are doing Site Plan Review. MR. TROWBRIDGE: Just one additional comment as well. I think I made it in relationship to the cross-sections, but it's my reading of the language as well that part of the intent is, in fact, aesthetic, of having chaotic front yards. And what we're suggesting is that you don't see the parking at all; that this, if I may not just be redundant, the surface cannot be seen from the street, and the parking will not be seen due to screen and buffering from Floral Avenue. So that the issue of aesthetics and the way the front yard looks, is only understood from the people who occupy the units that are being proposed and not from the passerby on Floral Avenue. MR. SALK: And, in addition, the character of this particular neighborhood again is such that all of the parking, to the extent that there is parking, and there is very little parking along this street, but all of the parking that does exist is in tie side or front yards. And, in fact, a lot of it is in those little areas that you mentioned before that were cut out by the City that are wide open, exposed to the view of passersby. CHAIRMAN TOMLAN: Further questions from members of the Board? None. Thank you, gentlemen. Is there anyone else who would like to speak in favor? Would you come forward? Again, beginning with your name and where you . . . MR. COCHRAN: Moncrief Cochran, representing the City Planning Board. I live in Ithaca. Just points of information related to the Community Development Grant that the City is putting forward, which is in the purview of the City Planning Board. This is a $565, 000 proposal at the center of which is this very housing plan. Low to moderate income housing; 13 such units, $260 per month for efficiencies, $480 a month for three-bedroom apartments - very affordable by Ithaca standards. Handicapped adaptable, which is extremely unusual. As you may or may not know, the sites available -BZA MINUTES - APRIL 5, 1990 for this kind of housing in Ithaca are extremely limited, and most of them extremely difficult. And so, hence, the importance of this proposal to the City, to this Community Development Project. In fact, if this proposal cannot go forward, the Community Development Proposal cannot go forward. $565,000 proposal of the sort that the City's been very successful with in the past. So that that information serves as a backdrop for the decision that you're making this evening. Thank you. CHAIRMAN TOMLAN: Any questions from members of the Board? Thank you. Yes. Question? MR. PECK: Yes, I have. I have to say something. CHAIRMAN TOMLAN: Okay. MR. PECK: You appreciate the difficulty of this situation that we're in here on the Board of Zoning Appeals. I guess the best analogy I can give you with regard to the Community Development Grant is the kids that come to me in my course and say "I 'm a senior, you have to pass me in your course somehow. " And I say to them "That doesn't have anything to do with whether you pass the course, or not", okay? The Community Development Grant, I don't see that as having much bearing on our decision as members of the Board of Zoning Appeals. It will probably weigh heavily in our emotional feelings about the project, but probably in the end, shouldn't play a role in whether or not we grant the variance. CHAIRMAN TOMLAN: Thank you. MR. COCHRAN: I have no quarrel with that. MR. PECK: Okay. I didn't think you would. MR. COCHRAN: (unintelligible) information is important that you (unintelligible) MR. PECK: Yes, it is. CHAIRMAN TOMLAN: Is there anyone else who'd like to speak in favor? No one. Is there anyone, then, who'd like to speak in opposition. If you'd come forward. Across from us here, Bill. And you begin by identifying yourself and where you live. MR. LOWER: My name is William Lower. I live at 433 Floral Avenue, which is a couple of houses south across the street. I 'm a landlord in the City, and I 'm also, I guess you'd consider me as a small developer. I have recently developed two or three pieces of property in the City, one of which is on the corner of State and Meadow Street. I built a new one on Dryden Road, a small one in the 200 block. I am in the process of building a $1,000, 000+ project on Maple Avenue, and I might add, that I 've had practical difficulties to the extent of nearly $150, 000 complying with things that the BZA MINUTES - APRIL 5, 1990 Planning and Review Board requested. They're just about crucifying me but I 'll still build the project. CHAIRMAN TOMLAN: All right, let's get to the point at hand, Bill. (UNINTELLIGIBLE) MR. LOWER: Okay, my point is that I have a piece of property that I could build sixty-some units on, I 'm only trying to build ten. My other point is that if this project down here, being a brand new project, there's a variance given for the parking, then in my opinion any time that I want a variance, I should be able to get it on my projects. I never ask for a variance on my new projects. And, when the gentleman said that there's no property that's zoned R-3 down there that could be purchased, that could be built on easily; there's about 3-1/2 acres a land about a half a block up the street on the other side where there'd be lots of parking. It's all level; there's no hills. So, I think that giving a variance to a brand new project here, given the fact that it is. . Because it's a pet project, maybe, for the City because they want a Community Development Grant, I think would not be right. Thank you very much. CHAIRMAN TOMLAN: Any questions from members of the Board? Thank you, Bill, that's fine. Is there anyone else who'd like to speak in opposition? If you'd come forward and identify yourself. MR. BENNETT: My name's Paul Bennett. I live in the City of Ithaca. I 'm an attorney, and I 'm representing the Lower family, who've asked me to come and address a few points. CHAIRMAN TOMLAN: Um hmm. MR. BENNETT: First, if I can address a personal point. I just wanted the Board to know I 'm Jewish, and I 'm not happy to be here tonight. I think that was something that could have been avoided very easily, and I 'm . . It's difficult to put into words how I feel right now about that. Getting to the business at hand, I think there are three things that this project must demonstrate before you can get an area variance for parking. The first, and most important, is can the difficulty with the Ordinance be obviated by some means other than a variance. And what I find interesting is that you have been offered three plans to consider tonight that all don't comply with the Ordinance for your consideration. You've been offered one plan, and only one plan, of how this could be worked and comply with the Ordinance. And as I look at Alternate Plan I, and I have to take it on its face, I 'm no engineer, but it has roughly the same fire line requirements and driveway configurations as the other plans; I may be wrong. And the only reason that's been offered to say that it can't be done. . Actually, there were two; one, that it would reduce the front yard cover, which I don't believe is a viable zoning consideration, since that's not required in the zoning plan. And second, if the retaining wall would be more expensive. That's a legitimate concern; however, throwing out a figure of $50,000 or $60, 000 out of the blue without any substantiation and without BZA MINUTES - APRIL 5, 1990 relating that to the overall cost of the project, isn't a. . The standard here, even the practical difficulties, is for you to show that the construction could not be . . proceed profitably if it complies with the Ordinance, and you don't have that information; I don't have that information, and I don't think that anybody can figure it out with the information that's been presented here. How much that would increase the cost per unit; whether that would make it unprofitable; how that deals with the profit margins, are figures that you don't have before you, and you can't answer that question. And so we have here is a configuration which, by the appellant's own admission, is something that could work. It could comply with the Ordinance, and we don't have any demonstration to show that that is impractical in financial terms or any other terms. So, in a sense, what we have here is again the same self-created hardship that he had before. It is a hardship that is created by the choice in the configuration of land by the developer. The developer has not demonstrated that there are choices which comply with the Ordinance that: A) physically couldn't be done; or B) financially couldn't be done because the information just isn't at hand. One of the other requirements that have to be considered is a procedural one, and that deals with the (unintelligible) As I read the case law, and as I read your rules, information that was not available at the prior meeting has to be offered to you now to support this application, which as I can see it, is substantially identical to the application made last month, and I would submit that no demonstration has been made that any of these facts or configurations weren't available last time. They just chose not to offer them, for whatever reasons they had, at that time. It's an interesting argument when someone sets up strawmen that don't meet the Code anyway, and then shoots them down saying you can't do that; that's not their requirement. Their requirement is to show they can't do something that complies with the Ordinance. That Alternate A does comply, it's the only one they offer, and they do not for any other configurations to show why they couldn't do it. Finally, in determining whether these things can be done, mention has been made of two factors; one is site plan review, so that's a hurdle that has to be overcome. Maybe I read this wrong when I read the City Code, but Site Plan Review is supposed to be made with the idea of complying with Zoning Ordinance first. Sites are supposed to be explored which comply with the Zoning Ordinance before coming to this Board. And, again, that simply hasn't been done here. You haven't been offered a number of possible sites that could have complied with the Ordinance, you've just been simply told after the fact, we don't want to do it; we can't do it. The bottom line is, and Mr. Trowbridge mentioned it, is that the appellant doesn't appear to like the aesthetics. They don't want to put their parking in the back, because it creates that canyon-like effect that they talked about before. That's not a consideration here. City Council has spoken about aesthetics, and they made a rule; you can't have more than 25% parking in the front yard; that's the aesthetic consideration that this Board has to take, and must take, and not substitute other aesthetic considerations which are in contravention of the Zoning Ordinance. Thank you. I have nothing further. BZA MINUTES - APRIL 5, 1990 CHAIRMAN TOMLAN: Questions from members of the Board? Thank you, Paul. Is there anyone else who'd like to speak in opposition? If you'd come forward, please. As before, you begin by identifying yourself and where you live. MR. H. LOWER: I live at 427 Floral Avenue. CHAIRMAN TOMLAN: And you are? MR. H. LOWER: Henry Lower. CHAIRMAN TOMLAN: We have to know that for the tape machine. MR. H. LOWER: Yes, sir. I am opposed to this parking situation, because I don't think the road will stand the traffic. I 'd like to have you think a minute on the traffic that's on the road now. We have about 40 school buses that flies that road four times a day. Then you've got your fire buses - fire wagons that might come through there, and does. Then you've got other vehicles that come through there in between. And then you've got your heavy trucks. I live right there, and I 've counted them several times. They amount up to over 100 an hour with the school buses, and over 100. And to put any more traffic on this road, I think it's detrimental. And then you've got your police cars that fly up and down there any time, so it puts a big heavy burden on this road without any more interference here, backing out into traffic and smash-ups; I 've seen a lot of smash-ups there on the road as it is, and if you're putting more traffic on there, you have to consider will it stand it? I, myself, don't think it will because we've got too much traffic as it is. CHAIRMAN TOMLAN: Questions from members of the Board? Thank you. MR. H. LOWER: Thank you. CHAIRMAN TOMLAN: Is there anyone else who'd like to speak in opposition? By now, I think you've got the order of things. You begin with your name and address. MR. WM. LOWER: My name is William H. Lower, I live at 428 Floral Avenue. I 'm opposed to this variance because, first of all, I don't think it's going to be aesthetically pleasing to the neighborhood to have cars out on the front lawn parking every which way. I live right beside this project that's going to be going up, and you know, I really wouldn't appreciate to see 24, 32, 36 cars when I 'm mowing my lawn in the front lawn. Also, the corner in which they want to put this parking is very treacherous; I pull in and out, my wife and I every day, and the corner's treacherous. And if they put shrubs up to kind of conceal the cars or the parking lot, this Is going to be detrimental to the view of around this corner. There's . . . I have a hard time getting in and out every morning. I mean it's . . and cars. There's a problem there. The speed limit's 30 miles an hour, but cars do not travel 30 miles an hour, they travel, you know, 40, 45, 50, sometimes even faster down through there. I 'm not BZA MINUTES - APRIL 5, 1990 opposed to this project whatsoever, but I would like to see the parking, you know, where it's going to be pleasing to my eye, where I don't have to drive past it every morning and see a bunch of cars. CHAIRMAN TOMLAN: Questions from members of the Board? MR. PECK: Which side of the project do you live on, Mr. Lower? MR. LOWER: I live on the same side of the road as the project. Well, as you're looking at it, right from there, I live to the left. MR. PECK: To the north, or to the south? Toward the lake or toward the . . CHAIRMAN TOMLAN: To the left, which is away from the lake. MR. LOWER: To the left. MR. PECK: Away from the lake. MR. LOWER: Right. CHAIRMAN TOMLAN: Further questions? Thank you. MR. LOWER: Thank you. CHAIRMAN TOMLAN: Is there anyone else who'd like to speak in opposition? Evening. MR. GALBRAITH: My name is Dirk Galbraith. I 'm an attorney. I represent Mr. Howard Teetor, who is a property owner, owning property which adjoins this property is also served by a right-of- way which follows the westerly border of the property. I 'm going to try to be brief and not cover a lot of ground that Mr. Bennett's covered already, but as I listen to the grounds stated by the applicant's attorney for practical difficulties here. I heard him say that there was no rear yard, that there was a cost problem with the erection of a retaining wall, and that apparently the applicant had to go through site plan review. Now, in respect to the first stated ground of practical difficulty, I believe the absence of a rear yard is characterisitic of all of the properties in that neighborhood on the west side of Floral Avenue. I believe it is a criteria of the Ordinance, the hardship difficulty has tc be unique to the property. I would suggest that this is not a unique problem. I would concur what Mr. Bennett said that the cost relation of one plan to the other has not been defined with enough meaning or precision to enable the members of the Board to make a determination whether the applicant would indeed incur significant and additional cost by proposing a plan that complied with the Ordinance. And third, I would concur with the comment of one Board member, which is the fact that site plan review is required here, is not, as a matter of law, an element of practical difficulty. Finally, Alternate 1, which is apparently, the only proposal brought forward which complies with the requirements of the Ordinance, would seem from -BZA MINUTES - APRIL 5, 1990 everything that's been said, not to involve the grade problem with the driveway, and I don't understand from the applicant's presentation that the City Fire Department would have any problem with Alternate 1; in many ways, it seems for that reason one of the most, or the most feasible project. CHAIRMAN TOMLAN: Questions from members of the Board? Thank you, Dirk. MR. GALBRAITH: Thank you. CHAIRMAN TOMLAN: Is there anyone else who'd like to speak in opposition? MS. LOWER: My name is Beatrice Lower, and I live at 427 Floral Avenue, and I think the parking should be put in the back to comply with the zoning. I am concerned also, as my father is, about cars in the front backing out, and we do have a lot of traffic. There's sheriff going up through, and buses, and the ambulances, and a lot of people I work to Cornell with they start . . They come over that road because they don't want to hassle all the lights on the Elmira Road. So, we have a lot more traffic now than we used to. And I just don't think that you should make a special exception and make people start thinking that, or start a trend that everyone should think that they can do something and I mean, why make these ordinances and stuff if you're not going to back them up and that. And I'm not a developer or anything, but I just cannot believe that someone like Mr. LoPinto could pick out a site like this and not realize that he would have problems with the bank and that. For this type of a project, it just kind of overwhelms me. CHAIRMAN TOMLAN: Questions from members of the Board? Thank you. Is there anyone else who'd like to speak in opposition? Well, it looks like we've reached the end of testimony, pro and con. The case is now ours. Perhaps, we should begin with a discussion of whether in fact, there is anything materially different between last month's case and this month's case. I think you all should be mindful of, again, the findings of fact that were made last month that that motion, that decision, essentially has a certain amount of weight in of itself. Again, as we've had in other instances earlier this evening, we should try to be relatively consistent in how we apply the Ordinance, that we may come down with different conclusions, we ought to know that those conclusions would be significantly different than, by virtue of this additional information, than what we've seen in the prior appeal. MR. SIEVERDING: Before we get into a discussion of the differences. Eric, do you have a copy of the . . . Could you just, yeah, sort of read what we passed last time and then maybe we can talk about whether what we have seen addresses the concerns that were raised (unintelligible) SECY. DATZ: Just read the Findings of Facts? -BZA MINUTES - APRIL 5, 1990 MR. SIEVERDING: Yes. SECY. DATZ: 1. The appellant has not fully demonstrated an exploration of alternatives that would satisfy the Zoning Ordinance, and why those alternatives might create practical difficulty or special conditions which would cause the Board to grant the variance. 2. The need for the present configuration of parking may, in part, be due to the increased number of parking spaces that the developer is providing. The Zoning Ordinance only requires 24 for the proposed number of units; the developer is proposing to construct 36, which may also create the need to put the parking in the front yard. There has been no demonstration why that particular decision creates practical difficulties and special conditions. 3. Denying the variance is consistent with the Ordinance, and consistent with the character of the neighborhood. MS. COCHRAN: I don't see that anything has changed, and I don't see any reason, particularly why this information couldn't have been presented last time in the first place. CHAIRMAN TOMLAN: Well, that's certainly one point of view. Shall we hear other points of view? MS. MACLEOD: My recollection is that you specifically Michael asked them to consider the business of putting the parking in the middle and moving the southern . . CHAIRMAN TOMLAN: I made several suggestions along that line, yes Bea. MS. MACLEOD: Well, it seemed to me that that was a specific suggestion which they could not answer. CHAIRMAN TOMLAN: They didn't feel, apparently, that it was necessary. MS. MACLEOD: That they could. And it seemed to me now that they have. I mean, that that is a specific thing that you asked, and which they have answered. CHAIRMAN TOMLAN: Okay. That's yet another point of view. Shall we come back to this side of the table and talk to Jack? MR. PECK: No. CHAIRMAN TOMLAN: No? MR. PECK: On the one hand, we asked them to show us considerations what we were really concerned with was the comparison between a conforming site and their site that they wanted to have, that they chose to have. I guess I 'm willing to accept their figures at fixed -BZA MINUTES - APRIL 5, 1990 value. I don't really care very much about the $50, 000 or $60, 000 figure they laid on their additional costs for that. I 'm not sure that a project of this size what impact that has on the total expenditures in the first place. So that probably would play a role in my decision one way or the other on the project. For me, this is a tough one. On the one hand, developing pleasing sites is important. I 'm not sure how much more or less pleasing the site would be with the houses in the front versus the houses in the back. As far as the housing goes, it would be nicer to keep the housing away from the road, certainly, in terms of road noise. In terms of seeing the cars parked from the road, I don't think that's going to be a problem. If you look at the grade that's presented on the bottom drawings, it doesn't seem to be a problem. In that regard, I think that as far as zoning law goes, you have to be careful, as a neighborhood, when you say you don't want something because it's too big an impact, when in fact the impact you could really get would be much greater than the impact that's been proposed, although the notion that you could put a hotel on this site is ludicrous. Obviously, there are constraints on this site that prevent anything like that from happening. On the other hand, some sites just can't be developed as much as other sites precisely because of the way they're shaped and becauses of their contours, and that has to be taken into consideration, too; not every site can be done to the maximum to maximize profits, etc. etc. Okay? I 'm in a dither right now, to tell you the truth. CHAIRMAN TOMLAN: That's a good soliloquey. MR. PECK: I have no idea yet as how I am going to vote on this project. As to the notion of whether or not they presented something different, Paul 's argument, whatever that Latin word he used to describe what our dilemma is here, I don't know the answer to that. I think essential to what we asked him to do was to compare, give us a comparison, although we do have rules that we don't accept the same thing over and over and over again. Obviously to everybody here, the reason why we don't do that should be obvious. But this may be considered somewhat a special case in that it has ramifications for many projects and Boards and people working in the City, too. CHAIRMAN TOMLAN: Is there new information? Do you feel as though (unintelligible) MR. PECK: I guess, in all objectivity, I have to say that there hasn't been new information except for the new pictures that have been proposed in the drawings, there, the ones with the parking behind. If you were to consider that new information, I guess you could think of it that way. CHAIRMAN TOMLAN: Okay. I think one of the things that has been brought out in Jack's comments, I think bears some repeating to give us all a sense of bearing is that this is not a use variance; this is an area variance, which means, in essence, that Jack's point about the dollars and cents isn't one we rely upon as a test quite -BZA MINUTES - APRIL 5, 1990 as much, or certainly as much, as we would with a use variance. So what we're really talking about is coming back to practical difficulty. I want to focus on the question, I guess, of whether in fact there's new evidence, because if you're going to come down to a decision, whether you vote for or against, one can imagine a suit for inconsistency against our decision if you come down one side or the other, if you're not consistent with what was said before. So, I think the notion of having read what we said before to remind ourselves as a starting point is a useful one. Herman? MR. SIEVERDING: Actually, I happen to feel that the site plans presented were actually very helpful in terms of trying to visualize some of the difficulty that may be involved in coming up with a plan that conforms to the Zoning Ordinance. I think development is always sort of a balance between what the site can absorb and what zoning is going to allow you to do. In an R-3, as we all know, there's an awful lot of development you can do in an R-3 that's tempered somewhat by the capacity of a site to handle those impacts. And I guess, it's clearer to me now, moreso anyway, than it was last time that, after looking at these site plans, I think there is some practical difficulty with coming up with a scheme that complies with the Zoning Ordinance. And I think the question you have to ask yourself is, I mean, to what extraordinary lengths do you make people go in order to comply with the Ordinance? I think in looking at that first scheme, as far as building a 50-60 foot retaining wall, it seems to me that's going to some extraordinary length to comply with the Ordinance. MS. MACLEOD: I 'm influenced by the approval of the Planning Board, and I 'm also influenced by the grant that they're applying for. CHAIRMAN TOMLAN: You're influenced by the grant? MS. MACLEOD: I mean by the fact that they want to apply for a grant. . CHAIRMAN TOMLAN: You understand that's out MS. MACLEOD: Low income housing. Yes, I do CHAIRMAN TOMLAN: You understand that that's outside the scope of our responsibility and our purvey. MS. MACLEOD: I do. I 'm telling you that I am influenced by it. CHAIRMAN TOMLAN: Fine. MS. MACLEOD: Okay? MS. COCHRAN: (unintelligible) In other area variances that we've granted, we've been dealing with existing construction, often times very old construction. Oh, sorry. We've been dealing with old construction, existing construction. If we allow these kinds of variances in new construction, are we not getting ourselves into hot BZA MINUTES - APRIL 5, 1990 water? I realize there aren't too many building lots left in Ithaca, but it seems to me that . . MR. PECK: Well. In fact, there's lots of building lots left in Ithaca, on West Hill, yes, ma'am. MS. COCHRAN: There are? Oh, on West Hill, I 'm sorry. MR. SIEVERDING: On West Hill. MR. PECK: There's lots and lots of development left on West Hill that could potentially be done. I just didn't . . Janice, go ahead. Continue. MS. COCHRAN: No. But the point still obtains that in new construction, you can make demands on whomever is undertaking a project whereas in existing constructions, you can't always. I mean, there is, I think a greater degree if you would have it, of practical difficulty when you have existing construction. The fact that his site is a difficult site, I think, only further strengthens that point that I 'm making. If it's such a difficult site, why is he building a project on it? And, if it's such a difficult. . Or, if he were to build on another site, and could comply, would we have the same difficulty that we're having right now? And, I see . . I do see it as a big difference between, you know, constructions. MR. SIEVERDING: Um hmm. No, I agree, and I think, typically, we've been very strict in looking at new construction in terms of, you know, meeting the Zoning Ordinance. But, again, each site needs to be taken . . You've got to look at each site individually. MR. PECK: That's why we're here. MR. SIEVERDING: You can't compare, you know, one site to others that may be hypothetically available. The property is zoned for some kind of a use. We've got a proposal that presents us with a use that's conforming in all respects. MS. MACLEOD: And needed. MR. SIEVERDING: Save this one deficiency. You look at the site plans that are presented and see how practical it is to comply with the Ordinance and to the extent it's not, what sort of mitigating measures they've taken to sort of lessen the impact of a variance that might be granted to let them do what they want to do. CHAIRMAN TOMLAN: Could we turn our discussion, having kind of broached the general issue, more particularly to what the area variance is about; and that is to exceed the 25% of the total area of the front yard for parking. MR. SIEVERDING: Um hmm. -BZA MINUTES - APRIL 5, 1990 we justify ourselves in terms of kinds of things that we do here, which is, of course, the thing that we're most importantly here for. CHAIRMAN TOMLAN: Well, we really ought to try to reach a conclusion sometime soon. MR. PECK: Well, I haven't this clear, logical argument that just drives me in one direction or the other, you know. CHAIRMAN TOMLAN: You want to try a motion? MR. SIEVERDING: Let's try a motion, and then we'll talk about the motion and see where it gets us. CHAIRMAN TOMLAN: All right. We're going to change tape. New motion. The first motion. MR. SIEVERDING: Yeah, the first motion. Appeal number 1952. . CHAIRMAN TOMLAN: No, 62. MR. SIEVERDING: 1962 . Sorry, I was looking at last month's. CHAIRMAN TOMLAN: Right. That's okay. MR. SIEVERDING: This is going to be a motion to grant. Findings of Fact: 1. The developer's proposed use is legal and allowable in an R-3 zone. 2 . The developer and his landscape architects have presented alternative site plans, previously requested, that show that there are practical difficulties related to providing sorry, I take that back . . showing that there are practical difficulties related to meeting the front yard restriction on parking. 3 . Those practical difficulties relate to the topography on the site, and the necessity to build fairly elaborate and extraordinary retaining walls that are necessary to place that parking in the rear of the property. 4. Other alternate site plans shown, attempting to comply with the Ordinance, also create practical difficulty relative to the grading of the access roads and the ability of safety emergency vehicles to properly access the units. 5. The effect of front yard parking is, in this instance, mitigated by the unique circumstances of the site, namely the topography, in that the front yard parking is visibly screened from the street by the slope and by the landscaping plan. CHAIRMAN TOMLAN: That it? One more. BZA MINUTES - APRIL 5, 1990 CHAIRMAN TOMLAN: Do you feel, I mean, if we just follow (unintelligible) that the additional parking is warranted in the practical difficulty of the site? MR. SIEVERDING: Well, that's the aspect of it that I have difficulty with is the jump from 24 to 36 and whether that, you know, creates part of the problem with meeting the Zoning Ordinance. Like I say, it's Alternate 3 that has the 24 parking spaces. CHAIRMAN TOMLAN: Um hmm. MR. SIEVERDING: And, so what impact that has relative to safety and vehicle access, you know, to all of those units. It's a little unclear to me whether there is, you know, practical difficulty related to that. On the other hand, I mean, I think you all know that, to the extent that there's more than 24 cars using the project, I think there is some benefit that all of that impact could be handled on-site, rather than spilling over onto the adjoining street, and which is the lesser of the two evils? MR. PECK: Couldn't do. MR. SIEVERDING: Hmm? MR. PECK: Which it couldn't do. MR. SIEVERDING: Which it couldn't do, right. Potentially, it creates, you know, . . . MS. MACLEOD: A hazard. MR. SIEVERDING: Yes. A potential hazard in terms of blocking access lanes and . . . MS. COCHRAN: I think it's laudible to have the greater rather than the minimum number of parking spaces on site. MR. SIEVERDING: parking spaces on site. Well, I think it certainly lessens the impact on the neighborhood relative to, I think, a front yard parking deficiency. CHAIRMAN TOMLAN: So, have we beat this one around the bush, that we're coming closer to a motion. MR. PECK: Well, I don't know. Of course, one of the, you know, one of the answers is to build less units, too, which they're obviously not willing to do; I mean, obviously, they've optimized this to their own liking, or something they're willing to do as developers and so on, and that this is what they would like to do; and in that sense, the 36 spaces are laudible. I 'm still most struck by our first opposing speaker, who was Mr. Lower, but, of course there are lots of them. You know, who spoke as a developer himself. I mean, how do we apply this fairly in a sense to the next person that comes along, or how have we applied it in the past that we can make sure BZA MINUTES - APRIL 5, 1990 MR. SIEVERDING: One more. 6. Part of the reason for the failure to meet the front yard parking requirement is in large measure due to the percentage of that paved area that's devoted to circulation, and not strictly to parking. MS. COCHRAN: I didn't hear you. MR. SIEVERDING: The part of the inability to meet the front yard parking restriction of 25% is related to the amount of surface area that is devoted to circulation, and not strictly to park in. MS. COCHRAN: Right. MR. SIEVERDING: Therefore, again, I think the effect from the street is mitigated, particularly relative to the intent of this ordinance, which is to create parking areas that are orderly, well- designed, and not offensive to surrounding properties. 7. Granting of the variance is consistent with the spirit of the Ordinance, and the charracter of the neighborhood. CHAIRMAN TOMLAN: Do I have a second? MS. MACLEOD: Second. CHAIRMAN TOMLAN: Further discussion? MS. COCHRAN: What was #3 again, Carol? REC. SECY. SHIPE: The parking deficiency related to the topography on the site. . . CHAIRMAN TOMLAN: Well, we would have to come back and get it out (unintelligible) of tape. MS. COCHRAN: Never mind. CHAIRMAN TOMLAN: You want to discuss things further, Janice? MS. COCHRAN: No. CHAIRMAN TOMLAN: Okay? Shall we have a vote? MR. SIEVERDING: I guess the only other aspect, the difference between 24 and 36, relative to. CHAIRMAN TOMLAN: Oh, this is a continued Finding of Fact? MR. PECK: No (unintelligible) MR. SIEVERDING: Well, let's just throw it out and see whether anybody thinks it's worth adding to. BZA MINUTES - APRIL 5, 1990 MR. PECK: (unintelligible) discussion as to 24 spaces that's within the Zoning Ordinance (unintelligible) MR. SIEVERDING: Right, 36 is over and, you know, justification for the 36 being that it really lessens the impact on the surrounding neighborhood by providing on-site, which in part creates the deficiency. CHAIRMAN TOMLAN: That's the part that sticks in my throat the most. MR. SIEVERDING: Okay, well. CHAIRMAN TOMLAN: Because I can't see, given the Ordinance and the intent to the Ordinance of creating more parking to that degree. MR. SIEVERDING: So, you'd be more comfortable with one where the front yard parking was limited to 24, and you only had a 1% deficiency, rather than a 7 or 8% deficiency. CHAIRMAN TOMLAN: See, I 'm not convinced. I go back to what Janice said. I don't see any particular difference between this year this month and last month. Essentially, they have come back and presented the same proposal with not a whole lot more information. MR. SIEVERDING: Other than that we never saw the scheme that had the 24 spaces. CHAIRMAN TOMLAN: You never saw the schemes. Sure. But, you know that's really kind of peripheral in many ways, and I really have a difficult time, given your motion last month being as explicit as it was, I think quite frankly to say everything in reverse this month, based on what was presented from last month, opens up the Board to lawsuit. MR. SIEVERDING: Um hmm. MR. PECK: The magic word. CHAIRMAN TOMLAN: I 'm just being honest. MR. PECK: Let's take the lawyers out (unintelligible) MR. SIEVERDING: You know, in making the resolution I sort of recognized that potential. I think it's one that's been discussed CHAIRMAN TOMLAN: I just want you all to be aware of my observation, that's all. MR. SIEVERDING: Right. CHAIRMAN TOMLAN: Any further discussion? Shall we have a vote? MR. PECK: Right away? BZA MINUTES - APRIL 5, 1990 CHAIRMAN TOMLAN: Yes, right away. I mean there's no sense in delaying what might be the inevitable in any event. MR. PECK: Well, I was hoping to go to the bathroom (unintelligible) CHAIRMAN TOMLAN: No, you can't slip out the back door. Let's move ahead unless you have further . I mean this is essentially a motion on the floor. You can continue to discuss it. MR. PECK: That's correct. CHAIRMAN TOMLAN: I 'm not calling the question. If one of you do that, that's perfectly fine. MS. COCHRAN: Could we have a condition that says . . No. No, I don't want to do that. CHAIRMAN TOMLAN: Okay. MR. PECK: Give us an idea, Janice. MS. COCHRAN: No. MR. SIEVERDING: Well, I mean let's just ask the question (unintelligible) Is anybody interested in the condition that limits the number of parking spaces to 24 . Are you feeling that that would be more consistent with the provisions of zoning and less likely to open us up to an Article 78 than what we're about to vote on? CHAIRMAN TOMLAN: I 'd like to clear this particular motion one way or the other and get on to another discussison. MR. SIEVERDING: Okay. CHAIRMAN TOMLAN: If another discussion is warranted. We're all in favor of a vote? Fine. A yes is to approve. MR. SIEVERDING: Is to approve. SECY. DATZ: Appeal 1962 has 3 Yes votes and 2 No votes. CHAIRMAN TOMLAN: So the motion fails. Now, so that you understand, you can create another positive motion, or you can create a negative motion. But, if you create a negative motion, you have to have findings of fact likewise that support the negative motion (unintelligible) Okay? More discussion, I think, perhaps is in order. MS. COCHRAN: Could we introduce in a positive motion the idea that each of these appeals is judged on an ad hoc basis and just not somehow cause precedence. -BZA MINUTES - APRIL 5, 1990 CHAIRMAN TOMLAN: That is understood in any event, Janice. In the rules, not only by virtue of the way in which we were created, but also State and (unintelligible) legislation spells that out. There is no need necessarily to say it within the context of a motion. It's understood that we're not establishing precedent for anything else. Now, that is, it's understood legally. I won't say that it's understood by virtue of the general public because the general public as a whole has a hard time understanding what our rules and regulations are about. No offense, it's just simply the matter of law which becomes confusing. MR. SIEVERDING: One way to approach it, I suppose, is are we agreed that Alternate Site Plan 3 complies with the Zoning Ordinance? Complies? Has a 1% deficiency. MR. PECK: Is that right, Herman? Is that what it finally boils down to? MR. SIEVERDING: We can go with these. . . Well, reading from Peter Trowbridge's (unintelligible) , Alternate #3, Site plan with access area reduced. In this scheme, we are able to reduce the parking and driveway area to 26%, close to the 25% requirement, so there's a 1% deficiency. Fire access, however, is compromised due to the location of the entry ramps in close proximity to the building units. I understood him to say that, you know, with access road area reduced (unintelligible) the number of parking spaces is reduced as well. It's a 24 . . MR. TROWBRIDGE: All the schemes that we are presenting in yellow are 24 spaces. MR. SIEVERDING: Are all 24 bay or stall parking schemes. In which case, I guess we would be dealing with a 1% deficiency. Is that right? CHAIRMAN TOMLAN: Um hmm. MR. SIEVERDING: Well, I suppose the same sort of case has to be built as what was just attempted. CHAIRMAN TOMLAN: That's right. MR. SIEVERDING: The only (unintelligible) being that the 1% deficiency is relatively minor compared to the deficiency that we were previously talking about. MS. COCHRAN: Except, I think that we agreed that 36 is a better number of parking spaces, don't we? Or do we MR. SIEVERDING: Well, we do. MR. PECK: Oh, absolutely. You know, when logic flies in the face of what we have to do, it makes it very difficult. That's why we're having such a hard time. Because I think we'd all like to see the BZA MINUTES - APRIL 5, 1990 most parking that we can get there, at the same time not getting ourselves in trouble for every other project that comes down the road and wants to do things that we don't necessarily, you know, agree or disagree with also. I mean, again, we're hard pressed for practical difficulties. Not in this case, but in the case of the 36 spaces because they are in fact imposed above and beyond the Zoning Ordinance. On the other hand, their arguments in favor of 1.5 cars per, you know, an average per household, it seems to me to be a reasonable thing to expect. But, nevertheless, maybe there could be accessory parking areas that are not in the front yard in addition to the 24 spaces that are in the front yard. Ones that are not so convenient, but nevertheless, still there for use by visitors and things like that. You know, I just feel horrible because we're riding on the back of some beast that's been built by people and now we're stuck with all the crap and I really despise this, you know. To dump this in the laps of five people in this community after all this work is really, as far as I 'm concerned . . CHAIRMAN TOMLAN: Let's see if we can't . . That doesn't help much. MR. PECK: Well, it helps me a lot (unintelligible) CHAIRMAN TOMLAN: We still have to come to some sort of rational decision. MR. SIEVERDING: Right. You know . . Are we convinced that there are any practical difficulties related to Scheme 3, and you know, in justifying the 1% . . MR. PECK: Not at all. Not at all. A 1% deficiency is nothing to me. I mean that's. . MR. SIEVERDING: Not at all what. You know, these other questions of what happens to, you know, fire access and whether the grading is in fact too steep, or whether spill-over parking or excess parking is a problem. You know, it complies with the Zoning Ordinance, and that's for them to figure out. I mean that's one way to view that, if you want to give them the project. I mean the other way is just. . We need another motion, one way or the other, is to make the alternate motion to deny and pack our bags and go home. CHAIRMAN TOMLAN: Well, yeah, that's another way to do it. You certainly can, to see whether, in fact, there's enough support essentially for them to go back and re-design. MR. SIEVERDING: With (unintelligible) . CHAIRMAN TOMLAN: Because that's essentially what you're saying. The disadvantages, of course, are immense for the appellant, but we've dealt with that before. MS. MACLEOD: Then they lose the grant. 'BZA MINUTES - APRIL 5, 1990 MR. PECK: Well, but Bea, the grant cannot be a part of our deliberations. They could lose the grant anyway. Okay? They still have to apply for it and get it, and for us to hang ourselves by the neck, and them to lose the grant anyway, would be really stupid. You see what I'm saying? That's why it can't be a part of our deliberations. MS. MACLEOD: But it's just a matter of timing, that's all, and we're the ones that are delaying . . MR. PECK: Yes, that's exactly right, and in fact, if they had gotten the granting process together a little earlier, it might have gone through a little sooner than . . . This happens to the City every year as far as these grants are concerned. MS. MACLEOD: They can't . . No, they can't put in the application until it's approved; their plan is approved. But the only thing. . I mean . . Isn't the only thing that we're worried about is the parking. MR. PECK: That's exactly right, Bea. The front yard parking. . MS. MACLEOD: And the reason that there is an ordinance against front parking is aesthetic, right? They have demonstrated that MR. PECK: Well, presumably, that was one of the things in the mind of the Common Council when they created (unintelligible) MS. MACLEOD: What else would it be? MR. PECK: Well, safety. CHAIRMAN TOMLAN: Safety. Health, welfare and safety first, probably aesthetics last. MS. MACLEOD: It's healthier to park behind the house than in front of the house? CHAIRMAN TOMLAN: Yes. MS. MACLEOD: I don't understand that. CHAIRMAN TOMLAN: Fire access proves it. Very simple, Bea. There are a lot of other reasons, too, that were given be-fore Common Council in passing that ordinance. Our job is not to question the wisdom of Common Council; our job is more or less to enforce that Ordinance or find reasonable reasons why it's not to be enforced. MS. MACLEOD: Well, it seems to me we had. CHAIRMAN TOMLAN: But you want to be careful about the notion of the grant because the more you weave the grant into your reasoning publicly on the record, the more that record can be held against you -BZA MINUTES - APRIL 5, 1990 in Court, and it's not one of those things. . . It's not one of those things . . . MR. PECK: Well, it's true, Bea. It's true. That's not what our purview is here to consider that even though, like I said, emotionally, we'd like to. MS. MACLEOD: Well, it . . It's our fault that we have delayed and delayed. CHAIRMAN TOMLAN: You see. . The Court . . No, it's not. . MR. PECK: No, it's not our fault. Not in the least. I do not feel guilty at all about that. I feel bad, but I don't feel guilty. We asked a very reasonable thing, and that was instead of denying them the proposal last month, to come back this month and give us a proposal that we could approve. That was generous on our part. MR. SIEVERDING: I 'm going to try another motion so we can go home. I 'm going to make another motion to approve, and this time make it very specific to what's being presented as Alternate Site Plan #3 . CHAIRMAN TOMLAN: So that we all understand, upper right hand corner, upper left hand corner; which one do you want? MR. PECK, MS. COCHRAN: The lower right. MR. SIEVERDING: The . . it looks like that one right there. . CHAIRMAN TOMLAN: Lower right. So that everybody understands clearly which one we're talking about. This is going to be 1962-B. MS. MACLEOD: What's our number now? CHAIRMAN TOMLAN: 1962-B. MR. SIEVERDING: This is a motion to grant a variance for a 1% deficiency from the front yard parking requirement. Findings of Fact: 1. The appellants have put together a number of site plans that show parking in the front, and in the back, all of which have various specific problems with them; most of them exceeding the front yard parking ratio by anywhere from 6 to 7 to 8%. Alternative Site Plan #3 exceeds that deficiency by just 1%. Given the extreme topography of the site, we feel that there is practical difficulty in eliminating that 1% deficiency. That 1% deficiency is not considered significant in terms of having any kind of a negative impact on the neighborhood, particularly in the context of a fairly elaborate landscaping scheme that, in conjunction with the site topography, limits the view of the parking in the front yard from the street. BZA MINUTES - APRIL 5, 1990 2 . We feel this variance to be consistent with the Ordinance and the character of the neighborhood. CHAIRMAN TOMLAN: Do I have a second? MR. PECK: Second. CHAIRMAN TOMLAN: Do we have further discussion? We've discussed things enough. A vote. SECY. DATZ: Appeal 1962-B - 4 Yes votes; 1 No vote. CHAIRMAN TOMLAN: So the appeal is granted for the 3rd site plan with the reduced parking. Fine? We stand adjourned.