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Home My WebLink About2023-02-28 BZA Minutes FINAL PRESENT: Betsy Lamb Tobias Dean Ted Jones Lew Billington (Zoom) ABSENT: Earl Hicks OTHER ATTENDEES: Town Planner David West Recording Secretary Cindy Katz Public (in-person)Charles Guman; Jeremy Thompson; Jeremy Knout; Sanford Miller; Marvin Oltz; John Vakiner; Andrew Purser; Andrew Davis; Natalia Santamaria Zoom Ted Crane; Andrew Cove & Deborah Montgomery; Joel Gagnon (Town Supervisor); Virginia Tesi; Leslie Conner (Town Board member), Katharine Hunter (Town Board member) Robert Goggs; Monica Vakiner; Marten Wegkamp This meeng was conducted in person with virtual access on the Zoom plaorm. The meeng was called to order at 7:01 p.m. 1. CALL TO ORDER/REVIEW MOTION to make Betsy Lamb chair during this meeng due to absence of Hicks. Moved by Jones, seconded by Dean The moon passed. In favor: Dean, Jones, Lamb, Billington No addion or deleons made to the agenda. Mary Ann Barr 2021 The Town of Danby 1830 Danby Road Ithaca, NY 14850 danby.ny.gov Board of Zoning Appeals Agenda Tuesday 28 February 2023 at 7:00PM 2. APPROVAL OF MINUTES No minutes for approval. 3. NEW BUSINESS Lamb clarified that though there were only 4 of them present, they were sll required to make a majority. She offered the applicants the opon to pull their applicaons today in case they felt this le them at a disadvantage. None did. Planner West wondered if they should change the order of appeals tonight. The Board elected to do that, and start with the East Miller applicaon variance. VAR-2023-01 229 E. Miller, Parcel: 7.-1-43.42 Applicant: Jeremy Knout Ancipated Acon: Approve or Deny Variance SEQR: Granng or Denying this Area Variance is a Type 2 Acon requiring no further review Applicant Request: The applicant requests a variance from the minimum lot size for 1 of 3 parcels in a 3 lot subdivision of the exisng large lot as well as variance of the required lot depth to create a 3 acre parcel around the exisng farmhouse. Applicant's Descripon and Board Quesons Applicant Knout approached the microphone, the map was displayed, and handouts were distributed to the BZA. He reviewed his goals. Lamb wondered why the applicant was pung in the variance and not the current owner of the land. Planner West said that anyone could put it in the appeal as long as the seller agreed. Lamb clarified with the seller - present at the meeng - that he did, in fact, consent. Lamb asked why the terrain wouldn't allow for any other configuraon of the land. He explained that with the terrain and all the hills and gullies, there is no other flat enough area. She wondered if the yellow lot could be expanded, and he responded that it could be, but that would result in lots neither of which met the required 10 acre minimum. They wondered if it was possible to add more to the pink lot in order to give each 10 acres. Dean wondered how similar this request was to another recent appeal to create 4 lots up the road, none of which were 10 acres. Planner West explained this is different because the size of this original lot would allow for 8 separate parcels. Public Comment The public hearing was opened at 7:13 p.m. Planner West said he had not received any leers and they asked if anyone from the public or on Zoom would like to speak. Knout reviewed his neighbors and said he was not aware of any issues from them; many are friends. No comments were made. The public hearing closed at 7:14 p.m. Area Variance Findings & Decision The Board of Zoning Appeals considered the appeal of Jeremy Knout regarding the property at 229 East Miller (Tax parcel 7.-1-43.42) for an Area Variance from the zoning code secon 602-5 that requires 10 acres and 600 depth for new lots in the R2 Residenal Zone. 1. The Board agreed no undesirable change would be produced in the character of the neighborhood or a detriment to nearby properes. Billington wondered if the pink area becoming a flag lot would cause any issues. Planner West said it is permied but could not be subdivided in the future. He sought clarificaon on direcons. Lamb wondered about possible future building on the blue lot. 2. The Board agreed that the benefit sought by the applicant could not be achieved by a feasible alternave of the variance. The Board agreed that there is not an alternave due to the topographical concerns, and that there would be no real way to the smaller lot up to the acreage required even if they did shave some land off the other parcels. 3. The Board agreed that the requested variance was substanal, nong that taking 10 acres and bringing it down to 3 does feel substanal. However, Dean stated if you consider the total density and size of the larger lot it seems less substanal. 4. The Board agreed the variance would not have an adverse impact on the physical or environmental condions in the neighborhoods. They noted that nothing is changing from what is already present and no construcon is planned. 5. The Board agreed that the difficulty was more or less self-created, nong however, that with the new zoning ordinances, there were no other opons and that the terrain was very limited, and that it is oen the case and not parcularly significant that the problem was self-created. . Planner West asked if they wanted Lamb wondered if they needed one or two variances to consider condions, including one that the future number of subdivisions allowed would be a maximum of 6 lots for the blue (larger) lot. They agreed on that condion, clarifying that the total area for the 3 lots cannot be divided into more than 8 lots. The BZA found a 7 acre and 500 depth from Secon 602-5 were the minimum variance that should be granted in order to preserve and protect the character of the neighborhood and the health, safety, and welfare of the community because of all of the above discussed reasons and the following: granng the variance will not change the character of the neighborhood, topographical limitaons preclude substanal changes to the proposal. MOTION to pass Resoluon 1 of 2023: The benefit to the applicant does outweigh the detriment to the neighborhood or community. Moved by Jones, seconded by Dean. The moon passed. In favor: Billington, Lamb, Dean, Jones. Lamb thanked the applicant for coming in person. Applicant asked what the next step is, and Planner West responded that the Planning Board will hold a hearing at the next meeng, do SEQRA, and then grant either preliminary or final approval. Appeal of Staff Use Determinaon for Tourist Home for SPR-2022-09 105 Beardsley Ln. Parcel: 2.-1-9.22 Link to Planning Board Folder Here Ancipated Board acon(s) this month: Review request for appeal, Consider Recinding or Upholding Staff Use Determinaon The Site Plan Review applicant would like to use their newly constructed home as a Tourist Home - a use allowed by site plan review in this zone. The appealing party believes that the proposed use does not meet the definion of a Tourist Home in the Town's zoning and is requesng review by the BZA. Lamb reviewed the appeal and Planner West clarified that this is not a decision on if a tourist home is permied but rather if this parcular house IS a tourist home. Lamb wondered if that meant the BZA had to therefore decide what the house is, if it is not a tourist house? Planner West clarified that there are two types of businesses for accommodaon that are allowed in the town - tourist home, which is allowed in this zone, and hotel/motel/boarding home, which is not allowed in this zone. The appealing party believes, based on the definion of "tourist home" that this accommodaon is NOT a tourist home but rather, a hotel/motel/boarding house. Lamb read the definion of the tourist home and asked for the input of the person bringing the appeal, Virginia Tesi. Tesi did not respond and Planner West explained they had COVID. He offered to read their most recent leer, which was not included in the packet.l Ted Crane asked if he could speak first in order to aend another meeng. Lamb agreed. Public Comment Crane said that he doesn't live near the house but would not want this to happen near where he lives. He agrees with the appealing party that the house’s primary use is NOT as a primary dwelling for the owner. He noted that the applicant themself has expressed that the "best part" of the house is not the part that the owner is using regularly but rather the part that will be rented. He thought David’s list of other tourist houses was not relevant because there are too many differences. He went over why those examples were different and irrelevant. He menoned that this area was made an agricultural zone, possibly to shield the neighborhood from 96B. When the applicant was given permission to build there, he claimed that the house would just be for him and his family. He noted a “paern of changing needs” and unstated intent from the applicant, poinng that various people involved knew that this was designed to be a rental property from the start. The Public Hearing connued... Natalia Santamaria of 135 Beardsley Lane spoke on behalf of Tesi, reading porons of the leer recently submied by Tesi. Robert Goggs: Asked the board to ask for a reasonable interpretaon of the zoning law, and that he supports this appeal. He believes it is more reasonable to view that a home using five of the more luxurious bedrooms in a seven bedroom home as rentals would make the rental the "primary" funcon of the house. Andrew Cove stated that he sent a leer today. He pointed out that the Town zoning laws do not have a strict definion of primary and secondary, but common sense shows that someone living in a two bedroom basement with only a kitchenee, but renng out an upstairs with a proper kitchen does not seem common sense that the rental be "secondary." He noted the ac cannot be "fied at the top" according to Code Regulaons. He noted that there is no definion of lodging houses in Danby zoning laws, so he's not sure why that was relevant. The way the applicant wants to use this house makes it a "boarding house" which is only permied in Commercial Zone Z. Deborah Montgomery, also on his Zoom spoke about the character of the neighborhood being damaged and feeling “scary” by having transient people coming in and out. Aorney Guman spoke on behalf of his client the applicant. He stated that how this impacts the neighborhood is not relevant to this appeal. That is something that the Planning Board considers in their Site Plan. Regarding "common sense": This is not a motel. Reminded folks that the queson here is if this is a tourist house as defined by the Town Board. Guman reviewed the condions of rental – only rented 180 days a year. This makes it a secondary use as a rental, because for 365 days a year, the applicant will be living there. He reviewed the layout of the house, where the applicant will live, and how the other floors will be used at various mes during the year. He brought up the rules regarding zoning laws when there is ambiguity. In those incidents, the ruling is supposed to go to the benefit of the land-owner. Joel Gagnon, Town Supervisor, explained that the only thing that makes this an issue is that someone is going to be living in the house. If this was going to be a full rental, rented out completely, it would be permied.The only queson here is what kind of rental IS it then, since it is not a fully rented out space? He urged the BZA to look closely at Planner West's reasoning to make sure it does in fact fit the definion of a tourist home. Andrew Pursuer: It seems clear the primary use is not a home and therefore it should be defined as a "boarding house." He wondered how the town can regulate the 180 days of rentals. He asked when the leer would be read and Lamb clarified it would be read aer the Public Hearing was closed. Virginia Tesi: Agreed with Guman that this is similar to a bnb. However, a bnb can be a tourist home but it can ALSO be a boarding house bnb. Which one it is is dependent on the primary/secondary use disncon, and that is what she believes the queson facing the BZA is. She disagreed with Gagnon's assessment that if the applicant were not living in the house it would be allowed. According to her, this statement is incorrect because this case is about a night to night rental for transient people - not a monthly or yearly rental. Nightly rentals, she believes, are only permied in two designaons. She believes it is a misinterpretaon to say nightly rentals are allowed in a building where the owner does not live. Perhaps this will change but as the code is now, this is what is there. Montgomery: Intenon can't be regulated and she wondered how those spulaons be enforced? Guman: Reiterated that this is about if this is a Tourist Home, not how the town chooses to enforce it., and that in a tourist home, vs a boarding home, the owner lives in the house, and that this is a tourist home because the owner will live there. Tesi responded that yes, in a tourist house the owner must live there, whereas in a boarding home that is not required. The public hearing closed at 8:04 pm. Board Quesons and Discussion: Planner West read the second leer sent by Virginia Tesi. Lamb clarified that they have the choice of supporng or not supporng the appeal, and Planner West clarified their choices are 1. Reverse his interpretaon of tourist house use 2. to affirm his interpretaon was correct or 3. to modify it, saying it was mostly correct with a few changes they made make in this parcular circumstance. She asked if considering the impact on the neighborhood was relevant and Planer West said no, it is purely interpreng the code, and that in situaons of ambiguity, you are supposed to rule in favor of the land-owner. Dean disclosed that he had a telephone call with Montgomery who asked her if this would go to the BZA. At the me, he didn't think. She expressed to him many of the things that were said tonight and he didn't feel he needed to recuse himself as a result. Billington noted the storied history of the building and code violaons. He is currently in Maine and read all the material. Some quesons that came up are we able to say that something is residency because someone decided to live in a basement? He heard many reasonable arguments here but he is not sure if they relate to the task at hand. He wondered how various condions could be enforced or kept track of. If both tourist homes and boarding homes are allowed, what is the downside to the house becoming a boarding house? It seems unlikely they house can get moved or torn down. From what he sees, we are stuck with zoning as it is like it or not. Dean said this is a new neighborhood, built in the last 15 years or so. he noted that a variance was given to Ithaca College to build a large addion to accommodate large gatherings, mainly on weekends, and he doesn't know if that has a noceable effect on the neighborhood. He noted that neighborhoods change over me, although he sympathizes with the neighborhood feeling threatened with this building. He cited the general principle that ambiguity must go in favor of property owner. It is clear that the Town must work on figuring this stuff out in the future but we have the BZA must rule on what is currently here. He referenced some other nearby locaons where similar conversaons are happening as well as in large cies. He said Planner West did a clear job of laying out the situaon as it is now, like it or not, although he expressed sympathy for the neighbors concerns. Jones stated that all the arguments heard today have validity but maybe not for this board. The BZA's scope is limited and he agrees with Dean and Billington what their job here is. The only quesons is if the described use of the property falls into the category, and if there is ambiguity, it has to go in the favor of the land owner. Lamb asked for clarificaon of 10 beds vs 10 people. Planner West clarified this is relevant to building code in R3 use type, there are one and two family homes as well as a lodging house. Some people were confused about a "lodging house" which is an owner- occupied house that includes no more than 5 rooms to rent and no more than 10 occupants. This is, however, the building code and is relevant to disnguish between using the residenal building code or the general building code. Ten also comes up in tourist home use, in commercial zones A and B, tourist homes with up to 10 beds are allowed, and in C, more than 10 is allowed. Lamb also asked if there a legal definion of primary and secondary? Planner West said there is one for primary use, and that for a tourist house, the whole house is a "primary use." Part of that definion is that a rental for compensaon is permied provided that the use is "secondary" to the occupaon of the home by a family - and what that "secondary" means is not further defined. Possible findings Planner West cited (and posted on the screen for folks to see as he typed) ●Landowner indicated that rentals will only be for less than half a year ●BZA has previously issued variance to allow large gathering space in Ithaca college Home in this neighborhood ●Zoning is in derogaon of common law and ambiguies must be construed in favor of property owner ●There is ambiguity in terms of how zoning defines Tourist home, specifically what "secondary" means. Lamb added her feelings on how complex this proposal feels, and how she understands why the residents brought it as an appeal. ●The BZA does not have the authority to change the zoning, only to interpret at wrien, only queson is whether or not the proposal, the Board agrees the proposed use is a tourist home. MOTION to pass Resoluon 2 of 2023: To Affirm the staff use determinaon as it stands . with the cited findings Moved by Jones. Discussion: Dean requested to add a recommendaon that the Town Board and Planning Board formulate more specific requirements and definion and restricons on tourist homes and airbns. Billington asked to add a statement that the PB and TB come up with a method for enforcing what a tourist home owner has indicated they will do in order to keep the impact to a minimum. Dean wondered how praccal that was or if a new zoning law amendment would actually be required for that. West clarified that the Town Board has started a process to work on understanding what the residents want for short term rentals. He also clarified that currently you can buy a house and rent it out as an airbnb. He cited a past board decision on Olivia Vent’s property, and that what current Supervisor Gagnon said is correct under current zoning – if the owner does not live on site, the house can be rented as an airbnb. He explained that a process is starng regarding accessory units on properes and that the Town Board is planning to expand that to include all short term rentals. ●BZA recommends that the Town Board and Planning Board work together to clarify definions and enforcement for uses that include short term rentals. Jones suggested the neighborhood look at adding convenants to the neighborhood as a way to prevent new houses being built as rentals. Planner West clarified they can sue people as individuals if they violate the convenants. Lamb added that the BZA is limited in their scope. Moon seconded by Dean. The moon passed. In favor: Billington, Lamb, Dean, Jones Lamb thanked everyone for aending and speaking to them. 4. ADJOURNMENT The meeng was adjourned at 8:41 p.m.