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HomeMy WebLinkAboutZBA Minutes 2013-12-16 TOWN OF ITHACA ZONING BOARD OF APPEALS MINUTES Monday December 16, 2013 215 North Tioga Street, Ithaca 7:00 P.M. Present: Kirk Sigel, Chair; Bill King, Rob Rosen Absent: John DeRosa Alternates: Chris Jung, Christine Decker Staff: Bruce Bates, Director of Code Enforcement and Zoning, Susan Brock, Attorney for the Town and Lori Kofoid, Deputy Town Clerk Meeting was called to order 7:05pm Appeal of JAMNA Hospitality Inc., Owner, Joseph Turnowchyk, HEX 9 Architects LLC, agent requesting an area variance per Chapter 270-117(3) "Yard Regulations", of the Town of Ithaca Code, to make renovations that would impede on the side yard setback by having a setback of 16 ft when a setback of 30 ft is required, located at 654 Elmira Rd, Tax Parcel No. 33.-3-6, Neighborhood Commercial Zone (NC). Joseph Turnowchyk, Hex9 Architects, LLC was present. Mr. Sigel summarized the request, which is to add on to the back of a number of units at the Rodeway Inn. On the east side, there is encroachment into the setback. The units are currently 16 ft. deep, but the current market is for rooms that are 25 feet deep. Board member King asked about the steep drop in the back that goes up to the addition and whether there is a concern about runoff. Ms. Brock explained that they would need a Sedimentation and Erosion Control Plan which Engineering has already determined is needed. Mr. Turnowchyk stated that the owner has engaged an engineer already to work on this plan. Mr. Sigel confirmed that the Planning Board has also reviewed and approved this project. Environmental Assessment Form and SEQR Determination of Significance were reviewed. Ms. Brock summarized the corrections that had been changed by Lori and mailed to the Board members prior to the meeting. Part 1 #2 asked for the name of other agencies and the permit or approval needed, "Site Plan approval and Special Permit" were added. For#4, the suburban (residential) box was changed to "urban." The same change was made to #14 on page 2. For#17, neither box was checked so it was changed to No being checked. Part 3 the explanation was expanded. Prior it only had the second paragraph about the archeological site so the first paragraph was added. 1 ZBA Resolution No. 2013- 038, SEAR Area Variance, 654 Elmira Rd, TP# 33.-3-6, December 16, 2013 MOTION made by Kirk Sigel, seconded by Bill King RESOLVED that this Board makes a negative determination of environmental significance based on the information in Parts I and II of the Short Environmental Assessment Form (SEAF) and for the reasons stated in Part III of the SEAF. A vote on the motion resulted as follows: AYES: Sigel, King, Rosen, Decker and Jung NAYS: None Motion was carried unanimously. Public hearing opened at 7:12pm and closed at 7:12pm without comment. ZBA Resolution No. 2013-039, Area Variance, 654 Elmira Rd, TP# 33.-3-6, December 16, 2013 MOTION made by Kirk Sigel, Seconded by Chris Jung RESOLVED That this board grants the appeal of JAMNA Hospitality Inc, owners, requesting a variance from Chapter 270-117(3) "Yard Regulations", of the Town of Ithaca Code, to make renovations that would impede on the side yard setback by having a setback of 16 ft where a setback of 30 ft is required, located at 654 Elmira Rd, Tax Parcel No. 33.-3-6, Neighborhood Commercial Zone (NC). Conditions 1. that the setbacks be as shown on the plans submitted by the applicant to this board and that in no case the setback be any less than 16 feet With the following: Findings 1. that the benefit to the applicant does outweigh any detriment to the health, safety and welfare of the community specifically that the benefit that the applicant wishes to achieve, which is that of making this addition to the back of the units, cannot be achieved by any other means feasible and, 2 2. that there will not be an undesirable change in neighborhood character or to nearby properties given that it's a relatively minor addition along the rear of the existing structure and is not very visible from the road and that the nearest neighbor on the side that this encroaches on the setback is quite some distance away and, 3. that the request is substantial being approximately Y2 of the required setback and, 4. that the request will not have adverse physical or environmental effects for the reasons stated in the Environmental Assessment form and, 5. the alleged difficulty is self-created by the applicant's desire to undergo this project but nevertheless the benefit to the applicant does outweigh any detriment to the health, safety and welfare of the community. A vote on the matter results as follows: Ayes — Sigel, King, Rosen, Decker and Jung Nayes— none Motion was carried unanimously MOTION by Kirk Sigel to move to closed session to seek advice of Counsel. Seconded by Christine Decker. Motion passed by unanimous vote. MOTION by Kirk Sigel to resume open session, seconded by Rob Rosen 7:35pm. Motion passed by unanimous vote. Minutes Discussion regarding the November 25, 2013 meeting minutes. Mr. Bates explained that past boards have allowed Mr. Sigel to just review and approve the minutes without taking it to a vote. However, with the November minutes there was much discussion and review of the minutes so it was decided to have the board review the minutes and vote on their acceptance. Mr. Rosen stated that he believed that his statement about "alternate uses for the property" was out of context. However, he reviewed the statement in the minutes and decided that it was not in fact out of context. MOTION by Mr. Sigel to adopt the draft before the board as the official minutes of the November 25, 2013 meeting. Bill King seconded. Motion passed by unanimous vote with Christine Jung abstaining. Continued discussion regarding the APPEAL of Yunis Properties, LLC requesting an area variance from Chapter 270-135 (E), "Density Limitations", of the Town of Ithaca Code, to place a drive-through restaurant closer than the allowed 1500 feet 3 from the property line of an existing restaurant with a drive-through facility, located at 302 Pine Tree Rd, Tax Parcel No. 62.-1-2.1, Community Commercial (CC) zone. Conrad Wolan, attorney for Yunis Properties was present and spoke for his client, Yunis Properties. Mr. Wolan presented the applicant's position that their request does in fact meet the criteria for an area variance and that the benefit to the applicant does outweigh the detriment to the health, safety and welfare of the community. Mr. Wolan stated that his focus has been to stick to the requirements of the statue and the balancing and the comparison of the benefit to the applicant and the potential detriment to the health, safety and welfare of the community. He believes the five factor checklist is a secondary consideration and is part of a larger balancing test that needs to be done and his focus is on the balancing test. In the end, it is clearly their position that none of the five factors ultimately would cut against the awarding of a variance and no undesirable change will occur, and that this is really the only alternative for this particular endeavor. Although the variance is substantial numerically, it is not going to have a substantial impact on the community, no adverse effect on the physical or environmental conditions and of course, the difficulty was not self-created. Mr. Sigel asked when the client acquired the property. Mary Jo Yunis, President of Yunis Realty responded to the question. The property was built by her father/family in the early 1970's. For a number of years there was a ground lease with the bowling alley next door, and they purchased the ground lease within the last five or ten years but have had control of the property since the early 1970's. Mr. Wolan continued his presentation. There isn't a question about a restaurant with a drive through being proposed and with certain conditions because that is a permitted use within this zone. It is not fundamentally inconsistent with the neighborhood. It is the area requirements that are in place that are in question. He presented a Planning Department memo to the Codes and Ordinances Committee in March 2000 that Ms. Brock said had been previously given to Zoning Board members. This document was a part of the discussion that went into the 2003 revisions to the Code. Mr. Wolan entered the document into the record and provided copies to board members. (Appendix B). Mr. Wolan directed the Board's attention to the pages with highlights. If the use is not in itself a problem, what is problematic with its proximity? On page #2, the amount of traffic generated by fast food restaurants with drive throughs is similar to fast food restaurants without drive throughs. It states that "Drive through businesses tend to have special circulation and access concerns relating to stacking lanes and driveways on busy streets". On page#5 there is a chart that has highlighted material. There is a repeat in the first column about drive through businesses and similar traffic generation from drive through and non-drive through restaurants. In the middle column, the basic recommendations are that a restaurant drive through should have good access to major roads, not allow separate drive through businesses to be located too close to each other, and although it is prohibited in the Neighborhood 4 Commercial zone, the Community Commercial zone does permit this use with only the distance separation requirement and other considerations regarding stacking. In the context of ruling on a variance, it would certainly seem that a 1500 foot separation would be triggered by issues of traffic flow. How would the variance granting impact the traffic in the neighborhood? Once that question is answered, then the factors in the statute can be considered. Mr. Wolan continued by showing the Town of Ithaca Zoning Map, superimposed with a blow up of the Community Commercial zone that is in question, along with the radius for the 1500 feet requirement outlined in red. He said the 1500 feet clearly encompasses the entire zone. With a straight line measure between Burger King and the site at 302 Pine Tree Rd, they are very much closer than the 1500 feet requirement. However, although they are within the 1500 feet with a straight line measure, they are in fact set up on different roads. The proposed site will focus traffic in and out on Pine Tree Rd, not Mitchell Street/Ellis Hollow Rd. Burger King is lined up on Ellis Hollow Rd. Given that they are on two different streets, with a traffic light in between, any stacking issues would be mitigated by the fact that going through the traffic light will change any flow from stacking. They are also facing in different directions, the stacking out of Dunkin Donuts would be on Pine Tree Rd and dealing more with the flow toward Cornell, whereas the Burger King site is a good distance from the intersection and in fact comes out not directly onto the road but rather into the driveway from the plaza which is shared with the two adjacent banks. Burger King's main flow is basically going in the opposite direction from the main flow of the proposed Dunkin Donuts. Mr. Wolan went on to discuss the traffic study that was presented at the November 25, 2013 ZBA meeting and provided to Board members in the application packet. The study notes that the nature of the store will not be expected to increase significantly new trips. Rather, the users of the Dunkin Donuts will be existing traffic flow that are coming through the area and people swinging off to use it and swinging back on. The few new trips will be in the morning and on average it will not be appreciatively new traffic. A second fact is that Burger King does not have an exit directly onto the road but rather a flow into the plaza or the plaza's shared driveway. The setup is already that the impact on stacking out to the roadway is quite limited and again, around the corner from the Dunkin Donuts. Neither store should be impacting the other. A third fact is that the Dunkin Donuts will have a secondary driveway down on Mitchell St., away from the intersection. There is a back driveway out of the bank building from basically the center of the property where the building is angled back and slightly downhill, which lends the configuration itself to the Pine Tree driveway as the main ingress and egress. Because of the second driveway, traffic will be diluted at both driveways. This Mitchell St. driveway is also separated from the Burger King exit by a traffic light which will eliminate any stacking issues. In fact, that driveway is longer than the usual driveway around there. 5 The fourth factual consideration, that while we are dealing with distance from property line to property line because that is how the zoning code is written, the driveways are, in fact, more in the neighborhood of 800 feet apart. That will certainly make any consideration of the substantial-ness of the variance to be quite a bit smaller. Instead of dealing with a variance that can be as much as 80%, we are really dealing with a variance that for practical purposes under this context, with these factual situations, has you at less than a 50% variance by itself. The most likely impact on traffic is timing because the vehicles using the Dunkin Donuts are already in the traffic flow. For example, if traveling through Pine Tree in the direction of Cornell and crossing that intersection, there might be someone coming out of the Dunkin Donuts turning left and heading towards Cornell in the morning. The inconvenience for the first driver is that if there were not Dunkin Donuts those people would have gone through 15 minutes earlier and would not need to be dealt with at this time. It is not changing the traffic flow, it is just simply changing the timing. The driveways being so far apart doesn't affect the overall traffic, just the timing issue. In other words, with a permitted use, we have to deal with the traffic. In this case, there are no real traffic impacts if you examine the entire situation as a whole. The functional distance between the stores is much larger than the straight line measurement. Mr. Wolan then went over the five factors. He submits that no undesirable change in the character of the neighborhood will occur. This is a permitted use. The traffic concerns of stacking and circulation are ameliorated by these relative locations and orientations of the property. There is no other method to achieve this benefit. The benefit requires not merely the use or economic use of the property, it is the particular benefit that the applicant wants at this point and in this case, the applicant would like to have a store with a drive through and there is no other way to do this without a variance. He submits it is not a substantial variance because while the distance at a first glance seems like it is very close, its orientation, in fact, suggests otherwise. Mr. Wolan discussed a 2008 Third Department case wherein an individual had applied to put in a 3200 foot driveway on a landlocked piece of property. They wanted it longer, steeper and wider than the zoning code. They requested four variances. The court noted that the ZBA had approved it and that while maybe in isolation, each individual variance sounded substantial; there was no substantial impact from granting the variance. It was noteworthy that it is not simply numerical calculations that seem to matter. In this case, because traffic is coming from existing traffic flow, it is not substantial for that reason. Regarding the factors of no adverse impact on physical or environmental conditions, the SEQR report from this board concluded there were not going to be any significant impacts at the last ZBA meeting. He also submits that repurposing this already existing building with a drive through function is much better than developing undeveloped land. It seems to be an ideal repurposing for this particular intersection. Mr. Wolan contents that this is not a self-created difficulty. There has been a long ownership of the property. The zone is such that if you see where the circle is, the zone would barely allow an existing store within 1500 feet of the Burger King. If you go to the place that might be, you would be up against a residential neighborhood. Technically, it wouldn't even fit under the 1500 feet radius. This is counterproductive. Mr. Wolan summarized by stating that when you balance out the benefit to the applicant vs. the detriment to the neighborhood, the revenue increase to have a drive through brings a higher rental rate. There isn't any detriment but, in fact, there is a beneficial impact to this particular neighborhood, one being rehabbing the building and two, keeping it well away from a residential neighborhood and we are improving the tax base by having an operating business in that space. The Board presented questions and discussion regarding the appeal. Mr. Rosen asked about the procedural possibilities. Mr. Sigel explained that this Board could vote on a modification of the motion that failed to pass at the last meeting, bring another motion to approve, or someone could bring a motion to deny. Mr. Rosen stated that his heart felt opinion as a long time town resident which includes having lived in this neighborhood for years, was that drive through restaurants are detrimental to the character of the neighborhood. There was a huge public outcry when Burger King opened years ago which led to an all-out moratorium on drive through restaurants. The Town Board passed an ordinance that is very clear, completely unambiguous, they were completely aware of the geography when they passed the ordinance and there is no intrinsic right to have a drive through restaurant. His feeling as a representative is that it is a detriment to the neighborhood character. It is no different than having a house in a neighborhood with a 50 foot setback and he says that it is better for him to have it right up to the sidewalk and that there are other neighborhoods that have this, it is easier and this is what I want to do. This is no different. The reason the zoning ordinance is in effect is to enforce a standard of appearance and atmosphere for the neighborhood. The ordinance is clear and he doesn't think this merits a 75% reduction in requirements from 1500 feet to 300 feet. He would move to deny it because it is too substantial. If it were 1400 feet, maybe, but this guts the zoning ordinance. If that is what the applicant wants to do, the applicant should ask for rezoning because this would completely negate the ordinance. He would vote to deny based on the significance of the variance. Mr. King stated he agrees with Mr. Rosen's position. He doesn't think it is about the traffic but rather it's clear to him that when the Town Board approved this ordinance, they didn't want any drive throughs and he realizes that they stated it in such a way that there couldn't be a drive through. He reads it as that being the intent. This appeal goes completely against what their desire is. If they had stated it clearly, this 7 would be a use variance and he doesn't believe it would get passed as a use variance. Mr. Sigel stated that what bothers him is that it would have been very easy for the Town Board to keep drive throughs disallowed. As Ms. Brock pointed out, there was a period from late 1999 to 2004 when restaurants with drive throughs were not permitted at all. So, he feels that if that is what the Town Board wanted, not only would it be easy to make it illegal, they were already illegal as of the adoption of the current version of our ordinance. They actually went out of their way to make them legal with the 2004 zoning changes. Mr. Sigel stated that his concern is that it would have been easy for the Town board to have just not allowed them at all and that there was a period of time when they were not permitted at all so they could have continued that if that is what they wanted. It would have been easy and they were already illegal prior to the adoption. They went out of their way to make them legal with the 2004 zoning change. He doesn't understand the motivation and doesn't have an answer to Mr. Rosen's question about the 1500 foot separation requirement and doesn't know why they chose to make them allowed and then say they should be separated by 1500 feet. When he looks at the supplemental materials the Town Board saw which, as the applicant pointed out, includes the Appendix B Business Zone Analysis, it seems to be concerned about traffic and circulation patterns. He does agree with the applicant that in this situation, the two locations are quite separate, traffic-wise. If this 1500 feet was motivated as it appears to be by traffic concerns, he doesn't see a harm in granting this variance based on that concern because that concern is addressed. Mr. King doesn't see the Town Board tying the number to traffic. Mr. Sigel doesn't see the Town Board tying the number to much of anything, but they do talk about traffic concerns which leads him to conclude that this is what they were trying to address. As the applicant highlighted in the copy of Appendix B he provided, the traffic generation of fast food restaurants with drive through is similar to those without drive through. #3 under Impacts lists special circulation/access concerns with stacking lanes, and the conclusion is to require special approval for drive throughs subject to distance separation requirements, stacking standards, and special building site standards. If you can tie those requirements to something, it seems to him you can tie them to the concern for circulation and access and stacking. Mr. King said the 1500 feet seems excessive and does happen to cover the zone. Mr. Rosen said the 1500 feet must be related to something else. Mr. Sigel finds it difficult to accept that the Town Board would say they would allow it but then make it so hard to locate another restaurant with drive through in the zone. Mr. Rosen stated that he believes the intent was to limit it to one restaurant with drive through. Mr. Rosen also doesn't believe that this isn't a self-created hardship. The applicant inherited the property from her father, who bought it 40 years ago, and it has changed a lot and he doesn't believe she has the right to do whatever it is she wants to do. Mr. Sigel rebutted that up until 1999 the restaurant drive throughs were allowed until the S moratorium took effect. If the applicant had purchased the property when the ban was in place, then it would be a self-created hardship. Mr. Rosen believes that there are other uses and other restrictions so saying you've owned the property since before the law doesn't hold water for him. Mr. Sigel stated that being a self-created hardship doesn't necessarily doom the appeal like it would in a use variance request. Mr. Sigel and Mr. Rosen discussed neighborhood character. Mr. Sigel stated that if it was a character issue, there are other drive throughs around: two banks, a drug store, and a gas station. Mr. Rosen believes that the issue is with the drive through restaurants specifically. Mr. Sigel's conclusion is that the negative impact from reducing the distance is modest, if any. Mr. Rosen would like to put forth a motion to deny and see if there is enough support based on it being an extremely significant variance, it guts the zoning ordinance, is self-created and there are plenty of bank branches that have opened in the neighborhood which means it could be a bank branch instead of a drive-through restaurant. Mr. Wolan responded that for the ordinance to state that the following uses are permitted upon receipt of a special permit, "restaurant or other place for the serving of food, with or without a drive—through facility," he submits that the Town Board made the decision about whether this is consistent with the character of the neighborhood. Like that or not, they have decided that it is consistent. It is this Board's job to see whether or not the variance itself would be adverse because the 1500 feet must mean something. In context the 1500 feet probably does not mean that they meant to zone it out because they could have simply said, no drive through restaurants in this zone and we have the prior non-conforming use of Burger King so you get to stay. It is very unlikely in his legal estimation that the board meant to use the 1500 feet as a de facto zoning out of this particular use. That strikes him as quite peculiar in the end. He believes it is this Board's responsibility to think of the narrow question regardless of how they feel about the greater question, that's a Town Board matter. Ms. Jung stated that she is swayed by the 1500 foot argument being such a change and the argument that it is a gutting of the ordinance. But, she also sees this as a decent use for this spot. She is pondering the discussion. Mr. Sigel and Mr. Rosen discussed whether Mr. Rosen should present a motion to deny. Ms. Brock advised they could attempt to vote on a motion to approve, but if it fails she would recommend that they continue with a motion to deny so that all the reasons are listed out. Ms. Brock suggested that both Mr. Rosen and Mr. Sigel list their reasons which would allow board members to hear what the reasoning is before they make a decision. 9 Ms. Decker stated that she is in even more favor of granting the variance than she was last month. She has driven through the neighborhood and doesn't believe it is going to change the neighborhood very much. Ms. Jung stated that her concern is that the 1500 feet has a meaning and a purpose but on a practical level she doesn't have any trouble with having a Dunkin Donuts because it is not a very big place and it is already a commercial area. She doesn't have a problem with it being there, it is separated from the nearest residences. At this point she would probably vote for it but the 1500 feet is a concern. She hesitates about going so far as to negate it. It needs to be changed or clarified. Mr. Sigel stated that if the ZBA grants the variance, the Town Board in reaction may modify the ordinance and if they don't want any more, they could remove the allowance for drive through restaurants. Ms. Jung's gut feeling is that she would like to follow the zoning rules and when it is a situation when she is going so far away from what is written, she becomes uneasy. It is a big jump from 1500 to 300. That is her hesitation, as she wants to follow the spirit of the zoning. Ms. Jung asked if they were to deny, would this push it to the Town Board for consideration. Mr. Sigel explained that if the Zoning Board denies, it goes back to the applicant to what they want to do which could include: suing the Town to try and have the variance granted, they could pursue a zoning change with the Town Board, or they could try to find a tenant that does want to do an allowed use. It does not automatically go to the Town Board because the Zoning Board denied it. MOTION made by Kirk Sigel to recess at 8:25pm. Motion moved by unanimous vote. MOTION made by Kirk Sigel to end the recess at 8:29pm. Mr. Sigel re-moved his motion from last month with some changes. He asked if the applicant was planning on removing the canopy. It will be removed. He would add an explicit condition that the existing canopy be removed and the number of drive through lanes reduced from three to one. Ms. Brock asked for clarification on the wording in the first condition because it is ambiguous. The changes were incorporated into the resolution. Changes were also made to finding #2 about changes to neighborhood properties. Ms. Brock asked further questions regarding the ownership of Yunis Realty. Ms. Yunis explained that Yunis Realty developed the property with a ground lease with the bowling alley that used to exist before the land was purchased. The building has been owned since the 1970's by Yunis Realty. The land was owned by Ide's Bowling, and the land was purchased by Yunis Properties, LLC more recently. It has been corporate controlled since the 1970's. Ms. Yunis explained that Yunis Properties, LLC purchased the land. Yunis Properties and Yunis Realty are related entities but are not the same entity, but ownership interests are the same. Yunis Properties, LLC is the landowner and is the applicant. Mr. Wolan stated that the ownership between the two is overlapping. Ms. Yunis said ownership of the two entities is not identical. Yunis Realty is a managing owner of Yunis Properties, the shareholders are the 10 same. Mr. Wolan clarified that the landowner(Yunis Properties) will be controlling the building owner(Yunis Realty) and what they do with the property. Ms. Brock advised that the self-created hardship section of the resolution from last month should be modified to reflect the above changes in ownership, which does weaken the argument that it isn't a self-created hardship because the land was purchased either when drive through restaurants were not allowed at all or when there was a 1500 foot restriction. Mr. Wolan stated that the LLC purchase clearly came after the restrictions were in place, but the LLC ownership is materially the same as the corporation that owns the building so he submits that it is immaterial. Mr. Sigel will add this to the findings. He also made changes to finding # 3 about mitigation of the substantial nature of the variance. ZBA Resolution No. 2013 —040: Area Variance Yunis Properties—for Dunkin Donuts 302 Pine Tree Rd, TP# 62.-1-2.1 December 16, 2013 MOTION by Kirk Sigel, seconded by Christine Decker RESOLVE that this Board grant the appeal of Yunis properties requesting an area variance Chapter 270-135 (E), "Density Limitations", of the Town of Ithaca Code, to place a drive-through restaurant closer than the allowed 1500 feet of the property line of an existing restaurant with a drive-through facility, located at 302 Pine Tree Rd, Tax Parcel No. 62.-1-2.1, Community Commercial (CC). With the following Conditions: 1. The distance be no less than as it exists now between the current building, and the property line of the existing restaurant with drive-through facilities (which is currently a Burger King restaurant)and that no part of the building be extended or enlarged to be closer than the building is now to said property line, and 2. The existing canopy be removed and the number of drive through lanes be reduced from three to one, and with the following: Findings 1. The benefit to the applicant does outweigh any detriment to the health, safety and welfare of the community in that the benefit the applicant wishes to achieve, which is that of converting the use of the building from a bank with three drive-through lanes to a restaurant with one drive-through, cannot be achieved by any other means feasible besides the granting of a variance, and 11 2. An undesirable change to neighborhood properties will not take place for the reasons stated in the SEQR form and given that a restaurant with drive- through is an allowed use with Special Permit in this zone, and additionally, that the location of this proposed restaurant with drive-through is close to the main intersection that occurs within this neighborhood Community Commercial zone. Additionally, similar uses in the area are two banks with drive through lanes, a restaurant with drive through, a drug store with drive through and a gas station that's operations function similarly to a drive through because of the large canopies and cars waiting to fuel up, and 3. That the request is substantial, being a reduction from 1500 feet to less than 300 feet, though this is mitigated by the fact a traffic light separates the two restaurants with drive through and the two restaurants have two separate entrances on two separate roads and, 4. The request will not have adverse physical or environmental effects for the reasons stated in the SEQR form, and 5. The applicant (Yunis Properties LLC) is the landowner and did purchase the land knowing this restriction was present, so to that extent the difficulty is self- created. However, the same entity that has owned the building and leased the land since the 1970's (Yunis Realty) has done so for many years predating any restrictions on drive through restaurants, so to the extent there is identical ownership of the two corporations, the difficulty could be considered not self- created. A vote on the matter results as follows: Vote: Ayes— Decker and Sigel Nays — Rosen, King and Jung Motion failed. Mr. Rosen in discussion with Ms. Brock discussed the details of the motion to deny the variance, which resulted in the following resolution: ZBA Resolution No. 2013— 041: Area Variance Yunis Properties —for Dunkin Donuts 302 Pine Tree Rd, TP# 62.-1-2.1 December 16, 2013 MOTION by Rob Rosen, seconded by Chris Jung RESOLVE that this Board deny the appeal of Yunis Properties, LLC requesting an area variance from Chapter 270-135 (E), "Density Limitations", of the Town of Ithaca 12 Code, to place a drive-through restaurant closer than the allowed 1500 feet from the property line of an existing restaurant with a drive-through facility, located at 302 Pine Tree Rd, Tax Parcel No. 62.-1-2.1, Community Commercial (CC), with the following: Findings The detriment to the health, safety and welfare of the community outweighs the benefit to the applicant as demonstrated by the following: 1. The benefit the applicant wishes to achieve, which is that of converting the use of the building from a bank with three drive through lanes to a restaurant with one drive through lane plus an additional separate use in the building, cannot be achieved by any other means feasible besides the granting of the variance. But nonetheless, on balance, the detriment to the health, safety and welfare of the community outweighs the benefit to the applicant and, 2. An undesirable change will be produced in the character of the neighborhood because a variance from the 1500 foot separation distance to less than 300 feet will allow a substantially greater density of restaurants with drive through than intended by the zoning law. This will have a negative impact on the adjacent residential zone by creating a situation where two restaurants with drive through are located adjacent to the residential zones and, 3. The request is substantial, being a reduction of the required 1500 feet of separation to 300 feet and the granting of this request would gut the intent of the zoning law to mitigate the impacts of restaurants with drive through by requiring substantial separation between them and, 4. The request will not have adverse physical or environmental effects or impacts in the neighborhood or the community commercial zone for the reasons stated in the SEQR form, but nonetheless, on balance, the detriment to the health, safety and welfare of the community outweighs the benefit to the applicant and, 5. The alleged difficulty is self-created given the fact that the applicant (Yunis Properties LLC) is the landowner and did purchase the land either when restaurants with drive through were prohibited entirely or the 1500 foot separation requirement was in effect. Given the substantial change in the density of restaurants with drive through that would result, the fact that the reduction from the required 1500 feet to 300 feet is so great, and the fact that the alleged difficulty is self-created, on balance the detriment to the health, safety and welfare of the community outweighs the benefit to the applicant. A vote on the matter results as follows: 13 Ayes— King, Rosen and Jung Nayes — Sigel and Decker Motion passed. Mr. King asked if there was a request to have a drive through restaurant that was only 400 feet from the Burger King, would this variance have set a precedent had it been granted. Mr. Sigel explained that he tried to craft the findings to be unique to this case, so it would not necessarily create a precedent. Other Business The Board reviewed and passed the proposed meeting schedule for 2014 and recommended Kirk Sigel as Chair for 2014. ZBA Resolution No. 2013-042, Meeting Schedule for 2014 December 16, 2012 MOTION made by Kirk Sigel, Chair and seconded by Chris Jung. RESOLVED, that the Zoning Board of Appeals of the Town of Ithaca adopts the following schedule of meetings for the Year 2014. The Town of Ithaca Zoning Board of Appeals will meet at 7:00 p.m. on the third Monday of the month in the Town Board Room in Town of Ithaca Town Hall, unless otherwise noted. January 27 (third Monday is Martin Luther King Day) February 24 (third Monday is President's Day) March 17 April 21 May 19 June 16 July 21 August 18 14 September 15 October 20 November 17 December 15 A vote on the matter results as follows: Ayes— Sigel, King, Rosen, Decker and Jung Nays — None Motion passed unanimously. ZBA Resolution No. 2013-043 , Recommendation of Chairperson for 2014 December 16, 2013 MOTION made by Rob Rosen, seconded by Bill King. RESOLVED, that this Board recommends to the Town Board of the Town of Ithaca that Kirk Sigel be appointed as the Chair of the Town of Ithaca Zoning Board of Appeals for the year 2014. A vote on the matter results as follows: Ayes — King, Rosen, Decker and Jung Nays- None Abstained - Sigel Motion passed unanimously. Meeting was adjourned at 10:05pm. Prepared by: C� Lori Kof id, Deputy to n lerk Approved by: Kirk Sigel, Ch it 15 TOWN OF ITHACA ZONING BOARD► OF APPEALS SIGN-IN SHEET DATE: December 16, 2013 (PL EA 5E PRINT TO ENSURE A CCUR14 CY IN OFFICIAL MINUTES) PLEASE PRINT NAME PLEASE PRIA/TAbbPE5S/AFFILIATI0N < I A C4 6 TOWN OF ITHACA AFFIDAVIT OF POSTING AND PUBLICATION "gJ9'01 I, Lori Kofoid, being duly sworn, say that I am the 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: olADVERTISEMENT G/NOTICE OF PUBLIC HEARINGS TOWN Qf# Location of Sign Board Used for Posting: Town Clerk's Office % 215 North Tio a Street g Appe,M a JANANa +-,I w Ithaca, NY 14850 Ity as«c.,�," °��' �' u,,,ts r «U4, Bda�Y r � Date of Posting: December 4, 2013 �,g )««`« ���, t °;Ib�., r7ra t11 t 4/f 0 Rogl«aiah«ns, of f6ai °8 ni of Itlxow Cot*' 0"Wow, m1novzationa uiat v�rna4#r' ta Date of Publication: December 6, 2013 pede 0"�u� ,Y Wdvt - am,c k{y kaOig a 94006 of 16 kr when;a TMa+§fau*cA 30 f6 0 r,aq« nd, lecoo Ak 654 Until b Bei,Tow, 110))01 . u .....L` como�r.�u`a^,srutl�«aakg faM, Lori Kofoid ` Deputy Town Clerk 607)2'71 it t��12/6/2013 ��o-s STATE OF NEW YORK) COUNTY OF TOMPKINS) SS: TOWN OF ITHACA) Sworn to and subscribed before me thisday of X-4)i, 0.r.,.,i13.... , 2013. e. N to y Public Debra De tlsvn Notary Public-State'of Pdew York No,41 D 6148035 Oueaiified in"rOmpkins County My Commission Expires June 19,20 AFFIDAVIT OF SERVICE BY MAIL �Oftmj,, -,TATE OF NEW YORK ) SS.: COUNTY OF TOMPKINS ) 1, 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 4h day of December 2013, deponent served the within Notice upon the property owners of the following Tax Parcel Numbers: 654 Elmira Rd, Tax Parcel No. 33.-3-6, Area Variance Hazel Cortright Eddy Hill, Inc Alfred Eddy 653 Elmira Rd 16 E. Enfield Center Rd 544 Bostwick Rd Ithaca,,NY 14850 Ithaca, NY 14853 Ithaca, NY 14850 Paul & Katherine Hildreth William & Patricia Kerry William & Patricia Kerry 657 Elmira Rd 704 Elmira Rd 702 Elmira Rd Ithaca, NY 14850 Ithaca, NY 14850 Ithaca, NY 14850 Thomas & Mary McGuire Carolyn McMaster Gulabbhai Patel 247 Piper Rd 706 Elmira Rd 658 Elmira Rd Newfield, NY 14867 Ithaca, NY 14850 Ithaca, NY 14850 loffift", eople of New York State George Sheldrake Tracie Sheldrake Empire State Plaza, Bldg 1 174 Calkins Rd 124 Seven Mile Dr Albany, NY 12238 Ithaca, NY 14850 Ithaca, NY 14850 Veteran Vol. Firemen's Assoc Charles Welch JAMNA Hospitality Inc 638 Elmira Rd 110 Seven Mile Dr Attn: Pratik Ahir Ithaca, NY 14850 Ithaca, NY 14850 654 Elmira Rd Ithaca, NY 14850 Joseph Turnowchyk, AIA Hex9 Architects LLC 5427 Woodside Dr Gap, PA 17527 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 K ,d., Deputy To 'Clerk Town of Ithaca Sworn to before me this 4th day of December 2013. Debra DeAugstine Notary Public-State of New York No.01 DE6148035 -�1 -- Quaiifled in Tompkins County My commission Expires June 19,20 Nkary-public L) Z/—