HomeMy WebLinkAboutZBA Minutes 2013-04-15 ZBA Minutes 4.15.13
TOWN OF ITHACA ZONING BOARD OF APPEALS
Minutes
Monday April 15, 2013
Present: Kirk Sigel, Chair, Bill King, Rob Rosen and John DeRosa
Alternates: Christine Decker and Chris Jung
Staff: Bruce Bates, Director Code Enforcement, Susan Brock, Attorney for the Town
and Lori Kofoid, Deputy Town Clerk.
Meeting was called to order 7:05pm
Appeal of ICS Development Partners Inc, owner, requesting a variance from the
requirements of Chapter 270-158 "Permitted principle use" to be permitted to convert a
current office building into a mixed office and restaurant with drive-through access for
both the restaurant and a bank, and a variance from 270-164 "Yard regulations" to
increase the non-conformity of the front yard, located at 930 Danby Rd, Tax Parcel No.
40.-3-9.2, Industrial Zone.
Mary Russell, attorney, Om Gupta, owner Jarma Sherma, architect and Scott Withiam,
site planner were available for questions and comments.
Ms. Russell explained the project and outlined the variances that are being requested.
The project involves a drive thru window for a mixed office and restaurant use, and to
allow for a drive through window for a bank and a third bypass lane with a
use variance for conversion of the first floor into a restaurant and retail space and
another use variance for the drive thru restaurant.
It is believed that the applicant cannot expect a reasonable return without the
conversion and the use variances. The main floor has been vacant for two years
because the alleged hardship is that the property is unique. It is not large enough for
industrial nor is there industrial in that area. The adjoining parcels have not been
developed as industrial and may be rezoned. Ms. Russell referenced the E and V
Energy property on Elmira Rd that was granted a variance recently which faced the
same situation. Mr. Sigel explained that that allowed use is office space and that was
the original intent of the building. Ms. Russell explained again that the office space had
not been able to be leased. The uniqueness is that the four small parcels are in a way
singled out because the district itself is disappearing which has become an extremely
limited use. It also has to economically compete against South Hill Business campus
which can provide cheaper rentals.
The applicant has not yet considered the possibility of requesting a zoning change from
the Town Board which would be a greater remedy to this situation. They will consider
that if the variances are not granted.
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ZBA Minutes 4.15.13
Ms. Russell states the belief that the character of the neighborhood will not be changed.
Nothing has changed since the property went through the Site Plan review process. The
self-created difficulty was not created by the applicant either because during the
purchasing process it was presented to the applicant that there had been a site plan
done and other uses were permitted on this site. Everything that was cited to the
applicant as reasons to purchase the property have not been true.
It was clarified that they are not seeking interpretation from the board at this time. They
may request that at a later time, but not during this hearing.
Mr. Sigel expressed concern that there is a residential property next door that could be
impacted by traffic which would change the neighborhood character. Ms. Russell again
used the E and V property as an example. Mr. Sigel clarified that this was a different
use case in that it was mainly for office space not retail. Ms. Russell believes that
another type of business in the industrial zone could increase the traffic and alter the
neighborhood more extensively. Mr. Sigel countered that an employer would have traffic
from employees that would stay on site whereas a restaurant would have traffic
throughout the day. Ms. Russell stated that the main highway already brings heavy
traffic to the area so the alteration to the character would not be happening.
The applicants presented an altered site plan map that was presented by Mr. Withiam
and was added to the record. The new plan is increasing the nonconformity of the
property. The drive thru was moved to the north end of the property and an 18 space
parking with buffering were added. They met with Sue Ritter and Bruce Bates last week
and discussed the study that was done to possibly link this area with a sidewalk. There
is still 100 feet from the retaining wall to the property line.
The area variance was discussed. They believe they meet the first criteria because
character of the neighborhood or detriment to nearby properties. This type of project
was approved previously commercial/retail/restaurant/bar use and a negative
declaration was determined at that time. There is a large business park adjacent to the
property therefore they don't believe this would be a detriment to the nearby properties.
They also don't believe that this can be achieved by any other feasible alternative to the
variance. They have been trying to rent the office spaces for two years and have not
achieved success. The variance is not substantial because they are only requesting a
different use and a canopy. The applicant also does not believe that there is a negative
environmental impact and this has been supported with the original site plan which has
not changed. There has also been a downturn in the applicant's business and in the
economy. The business campus next door rents space at a reduced rate.
Mr. Rosen is seeing that this is more suitable to a zoning change than an area and use
variance. Mr. Sigel is concerned about going from industrial and office allowance all the
way to a restaurant with drive thru which skips over the community commercial zone.
The Town Board made the decisions for good reason to maintain character in certain
zones so therefore has concerns about having a restaurant and a drive thru. Mr. King
ZBA Minutes 4.15.13
asked about the impact of the office space in the basement with a restaurant on the
main floor. Mr. Gupta will be the tenant in the office space so that will not be an issue for
the tenant.
Mr. Sigel explained that they would need a super majority vote because of the GML
determination by the county that there would be a negative impact.
Public hearing was opened at 7:37pm. It was closed without comment at 7:37pm.
The Board would like more information regarding:
1. The uniqueness of this property— more evidence that it is unique and not just
having difficulty finding tenants
2. How it won't change the essential character of the neighborhood by changing
from industrial to a drive thru restaurant.
Mr. Sigel moved that this appeal be adjourned until such time as the applicant requests
that it be put back on the agenda. Seconded by Ron Krantz. It passed unanimously.
Appeal of Ed Baxter and Erika Styger, owners, Brent Katzmann, agent, requesting a
Special Approval per Chapter 270-30, Article VI of the Town of Ithaca Code, to be
permitted to construct 2 residential structures, located at Max's Dr, Tax Parcel No. 28.-
1-3.62, Agricultural Zone.
Ed Baxter and Erika Stryker, owners; Brent Kratzman, agent and Noah Demarest,
architect were present for answering questions and discuss request.
Mr. Kratzman presented the plan that the applicants want to build two residences on
their property that are separate buildings that would make a minimal impact on the
environment. They would build the small building first then reside there while the second
dwelling is being built. They would use the first building for visiting family and friends.
The site plan shows an existing tree line that goes along the property line. The intent is
to build a road or driveway that meets regulations with pull offs for passing vehicles, full
sized hammerheads etc. to meet the standards in the code. The property would have
one well and one septic system because they are integrated structures but not attached.
The permitted use in an agricultural zone which would not be used for agricultural
purposes, does allow for upon special approval a second dwelling unit in a building
other than the building on the lot. They believe that the applicant satisfies all the criteria
in this section.
Mr. Sigel expressed concern about criteria six, that the second building is a house and
not an accessory building and does not meet the definition of accessory. Essentially two
homes on one lot is clearly prohibited by Town code.
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ZBA Minutes 4.15.13
Mr. Kratzman pointed out that there are two properties in the neighborhood that have
two structures on one property. It was clarified that these properties have two buildings
that are connected by a porch which makes it a 2 family home. These examples are
also in a different zone. The applicants would be permitted to build two homes that were
connected because they would then be a two family home, a permitted use.
One option presented by the board is for the applicant to build the larger building first,
then reside in that building while a second accessory building is being built or add it as
an attachment to the original building. No variance would be required.
The applicant requested an adjournment.
Mr. Sigel moved that this appeal be adjourned until such time as the applicant requests
that it be put back on the agenda. Motion was seconded by Rob Rosen.
Motion passed unanimously.
Appeal of Evan Monkemeyer, owner, requesting a variance from the requirements of
Chapter 270-123 "Drive-through operations" of the Town of Ithaca Code, to be permitted
to build a drive-through lane and window for a restaurant and to also amend ZBA
Resolution No. 2012-026 condition 4 to construct as indicated on the applicant's plans
submitted November 15, 2010, located on the northeast corner of Danby Road and King
Road East, Tax Parcel No. 43.-1-3.23, Neighborhood Commercial Zone.
Evan Monkemeyer, applicant, Ed Keplinger, Architect, George Winner, Esq. and Jim
Knittle were present to answer questions and discuss variance requests.
Mr. Monkemeyer stated for the record that the public hearing notice states that he is the
owner of the property when in fact College Crossing LLC is the owner of the property.
Ms. Brock stated that she believes that this is not a substantial difference in terms of
notice to the public and that this notice fairly apprises the public of which property is the
subject of this hearing. The description of where the project is and the tax parcel
number is sufficient notice to the public. The hearing continued.
Mr. Monkemeyer gave background information on this property going through numerous
planning meetings and plan changes since 2005. It has gone from a T-shaped building
to elimination of the T and smaller square footage after the crash in 2008. They have
carried through with being granted variances for the bank drive thru. But since then,
they have gone flat with finding tenants for the property. They need 12000 sq ft before
they can move forward. A new potential tenant has come forward, Dunkin Donuts, the
same owner of the other two Dunkin Donuts in town.
The end of the building has been modified to accommodate a restaurant and drive thru
while also adding parking spaces. There are two ways to enter the driveway. A traffic
study showed that they will be able to stack 7-9 vehicles in the drive thru without
blocking traffic. Landscaping will be added to buffer the area so that it is not as visible
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ZBA Minutes 4.15.13
from 96B. The Dunkin Donuts has agreed to change their interior from plastic to a
leather look and will have a board room that will be free to the public for meetings.
Mr. Sigel stated that he has "character of the neighborhood" questions, again largely
feeling like he should defer to the town boards determination of what their zoning
decisions are for not allowing drive thru restaurants in this zone. Mr. Monkemeyer is
unsure why the Town board would differentiate between a bank and a restaurant when
the traffic is very similar. He explained that Dunkin donuts is not a heavy restaurant but
coffee and donuts with a very light menu. This property is not backing up to a residential
area like the previous applicant. Mr. Monkemeyer stated that the school property to the
north is 500 feet and in the past they have come in and supported the College Crossing
development.
Question was raised about the cross walk and if there would be any pedestrian crossing
since it is a major highway. The state regulates the highway and they will not put in a
crosswalk at this time because it would slow down the traffic on the main highway.
The county GML letter was reviewed with their determination that it may have an inter-
community, or county-wide impact and recommend disapproval of the proposal. Mr.
Winner explained that he does not see how the County's determination adds anything
new to the discussion. This is merely a request to allow a minimally intrusive but
necessary purpose to land a tenant.
Mr. Sigel expressed his reservations about the second criteria about whether this
hardship is unique to this property, and he felt that there were other businesses in this
area that would love to add a drive thru as a revenue enhancer. He also has concerns
about the self-created criteria because the applicant proposed the design that created
the condition that the applicant can't lease enough of the building to get financing. The
applicant has the ability to modify the plan in order to get the financing that would make
the plan feasible. Mr. Monkemeyer believes that making a change to the plan would
make the project not financially feasible.
Dunkin Donuts is not willing to consider leasing without the drive through. They are
willing to sign a 10 year lease with the option for maintaining six renewals of five years
each, totaling a 40 year commitment.
Mr. Sigel again expressed that he does not see that the applicant has proven that they
would not be able to have a reasonable return should they modify the plan to
accommodate a smaller building. Mr. Monkemeyer expressed that the cost of starting
with a smaller building and then adding to the building at a later time would be an
economic hardship.
Public hearing was opened at 9:07pm.
Dave Auble of 111 King West Rd resident spoke about his general reaction is that most
of the traffic to this restaurant would be walk in from Ithaca College instead of drive
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ZBA Minutes 4.15.13
through traffic. He spoke in favor of it because it would be an asset to the neighborhood
and he doesn't see where this would be detrimental. He pointed out that the gas station
has a lot more drive in and drive out than the restaurant would be. Although he doesn't
use drive throughs much he still believes this would be an asset. He has spoken with
the Town planners and they are trying to make this a more walkable area and there is a
lot of pedestrian traffic that goes past his property. A large amount of walkers from the
motel and the neighborhood walk up and down King Rd. He would like to see more walk
way opportunities and would more likely see that if they develop this corner with this
project. He believes the state will make it more pedestrian friendly with the
development being there.
Public hearing was closed at 9:10pm.
The Board discussed the concerns about whether the applicant has met the criteria for
a use variance or if there would need to be more evidence presented for each criterion.
Mr. Rosen doesn't see how this is a unique situation since the other corners have been
developed. He believes that the drive thru is in conflict with the residential use and feel
of the neighborhood and changes the character of the neighborhood.
Ms. Brock suggested that the question about looking at any use permitted in this zone
and having the applicant show that each use would not provide an economic return
would be advisable. Mr. Monkemeyer believes that he has already done this through
the multiple plan revisions and has attempted to get all of the permitted use businesses
in this space and has been unsuccessful. The board does believe that he has not
shown that he could not find a permitted use that is completely different than this plan
and receive an economic return.
Mr. Monkemeyer expressed that his economic hardship is that he doesn't have the
money to just build this facility but rather must go to the bank and meet their criteria to
receive the loan. He has talked to locals that are turning him down because the
investment of $5-6,000 to invest in a restaurant is prohibitive. This possible tenant is an
excellent tenant for this area that will give the building a jump start.
Since this project was created and presented by Mr. Monkemeyer, it would be difficult to
prove that it wasn't a self-created problem. One option suggested was that the building
be made smaller, making the occupancy threshold for the bank financing being lower
than what is currently needed. Evidence is needed for each of the criteria that supports
that they have met that particular criteria. The problems have to be related to the
property, not Mr. Monkemeyer's personal financial situation.
The applicant requested an adjournment.
Mr. Sigel moved that this appeal be adjourned until such time as the applicant requests
that it be put back on the agenda. Motion was seconded by Rob Rosen.
Motion passed unanimously.
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ZBA Minutes 4.15.13
Ms Brock announced that Kirk Sigel has been given an award as "Outstanding ZBA
Chair" at the NY State Planning Federation meeting that is coming up in the near future.
Meeting was adjourned at 9:45pm
Sub tted by:
Lori Kof id, Deput o Clerk
Approved by:
Kirk Sigel, Chair
7
TOWN OF ITHACA
AFFIDAVIT OF POSTING ANMD PUBLICATION
1, Lori Kofoid, being duly sworn, say that I a Deputy Town Clerk of the Town of Ithaca,
Tompkins County, New York that the following notice has been duly posted on the sign board
of the Town Clerk of the Town of Ithaca and the, notice has been duly published in the official
newspaper, Ithaca Journal:
ADVERTISEMENT: PUBLIC HEARING
TOWN OF ITHACA ZONING BOARD OF APPEALS
NOTICE OF PUBLIC HEARINGS
Monday, April 15, 2013
7:00 P.M.
Date of Publication: Friday April 5, 2013
Location of Sign Board Used for Posting: Town Hall Lobby
Public Notices Board
215 North Tioga Street
Ithaca, NY 14850
Date of Posting: Friday April 5, 2013
C-!KLori foid
Deputy Town Clerk
Town of Ithaca
STATE OF NEW YORK)
COUNTY OF TOMPKINS) SS:
TOWN OF ITHACA)
Sworn to and subscribed before me this 5th day of April 2013.
7
Notary-Public
Debra DeAugistine
Notary Public-State of New York
No.01 DE6148035
Oualified in Tompkins County
My Commission Expires June 19,20
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AFFIDAVIT OF SERVICE BY MAIL
STATE OF NEW YORK ) SS.:
COUNTY OF TOMPKINS )
I, Lori Kofoid, being duly sworn, deposes and says, that deponent is not a party to the actions, is
over 21 years of age with a professional address of 215 North Tioga Street, Ithaca,New York.
That on the 5`h day of April 2013, deponent served the within Notice upon the property owners of
the following Tax Parcel Numbers:
930 Danby Rd,Area and Use Variances
Emerson Power Transmission ICS Development Partners Ithaca College
7120 New Buffington Rd 930 Danby Rd 953 Danby Rd PRW 322
Florence, KY,41042 Ithaca, NY 14850 Ithaca, NY 14850
Ithaca Estates Properties Jane Ames Grantor Trust Maria&John Poulos
123 King Rd East PO Box 460 924 Danby Rd
Ithaca,NY 14850 Ithaca, NY 14850 Ithaca,NY 14850
Sanford Reuning South Hill Business Campus Peter&Patricia Stage
Franklin Butler 950 Danby Rd 923 Danby Rd
929 Danby Rd Ithaca,NY 14850 Ithaca,NY 14850
Ithaca,NY 14850
Sunom, Inc John Dix Wayman
930 Danby Rd 917 Danby Rd
Ithaca,NY 14850 Ithaca,NY 14850
Max's Dr,Tax Parcel#28.4-3.2,Area Variance
Kimberly&Jason Bailey Diane Beckley Mary Bentley
110 Vera Cir 2 Max's Dr and Lisa Schneider
Ithaca, NY 14850 Ithaca,NY 14850 100 Vera Cir
Ithaca,NY 14850
William Breen Daniel Buck Richard Conlon
125 Vera Cir 112 Vera Cir 860 Elm St Ext
Ithaca,NY 14850 Ithaca,NY 14850 Ithaca,NY 14850
Robert Drake Richard Durst Paul &Mary Hart
354 Sheffield Rd and Antje Baeumner 205 Woodgate Ln
Ithaca,NY 14850 1040 Cayuga Heights Rd Ithaca,NY 14850
Ithaca,NY 14850
14"11\ IT Harbor Enterprises John &Ann Lemley Stephen&Jeannette Little
PO Box 249 301 Woodgate Ln 201 Woodgate Ln
Ithaca,NY 14851 Ithaca,NY 14850 Ithaca,NY 14850
Karl Niklas&Edward Cobb Diane&Gordon Perry Sandra Reukauf
115 Vera Cir 108 Vera Cir 106 Vera Cir
Ithaca,NY 14850 Ithaca,NY 14850 Ithaca,NY 14850
Laurie Robinson Robert&Paula Smith Donald&Jenny Tindall
118 Vera Cir 123 Vera Cir 117 Vera Cir
Ithaca,NY 14850 Ithaca,NY 14850 Ithaca,NY 14850
Doug&Lauri Wallenbeck Merton &Lury Wallenbeck Stan Walton
5 Max's Dr 4 Max's Dr 116 N Aurora St
Ithaca, NY 14850 Ithaca, NY 14850 Ithaca,NY 14850
Paul Wheeler&
Deborah Littlejohn
1 Max's Dr
Ithaca,NY 14850
Northeast Corner Danby Rd & King Rd East, College Crossing Development
Tax Parcel#43.4-3.23
David Auble Birds-Eye View Properties Leslie&Karen Black
111 King Rd West 721 Hudson St 107 Kings Way
Ithaca,NY 14850 Ithaca,NY 14850 Ithaca,NY 14850
Robert Chamberlain Jr Robert Farley Garuda Hotels Inc
70 Gunderman Rd 1050 Danby Rd 2303 N.Triphammer Rd
Ithaca,NY 14850 Ithaca,NY 14850 Ithaca,NY 14850
INHS, Inc Manley's Mighty-Mart LLC Grit Matthias
115 W. Clinton St 1249 Front St 111 Kings Way
Ithaca,NY 14850 Ithaca,NY 14850 Ithaca,NY 14850
James McCollum EAC Montessori School Jill Moreland
Laura Thomas 120 King Rd East 114 King Rd West
1046 Danby Rd Ithaca,NY 14850 Ithaca,NY 14850
Ithaca,NY 14850
Jack Nelson Jacqueline Nelson Theresa Peck
319 Van Kirk Rd 106 King Rd West 113 Kings Way
Newfield,NY 14867 Ithaca,NY 14850 Ithaca,NY 14850
David Richards Christina Marie Salino Maria Salino
1058 Danby Rd 1070 Danby Rd 488 Troy Rd
Ithaca, NY 14850 Ithaca,NY 14850 Ithaca,NY 14850
Samuel Peter—Trust Timothy &Peter Torchia George Winner,Esq.
1083 Danby Rd 110 King Rd West 150 Lake St#159
Ithaca,NY 14850 Ithaca,NY 14850 Elmira,NY 14901
Keplinger Freeman Associates James Knittel, AIA Evan Monkemeyer
Edward Keplinger,RLA Dal Pos Architects,LLC College Crossing LLC
6320 Fly Rd, Suite 201 101 N. Clinton St Suite 300 123 King Rd East
East Syracuse,NY 13057 Syracuse,NY 13202 Ithaca,NY 14850
By depositing same enclosed in a postpaid addressed wrapper, in a post office under the exclusive care
and custody of the United States Post Office Department within the State of New York.
Lori Ko void,Deputy To C rk
Town of Ithaca
Sworn to before me this 5th day of April 2013.
Notary Public
Debra DeAugistine
Notary Public-State of New York
No.01 DE6148035
Qualified in Tompkins County
My Commission Expires June 19,20