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HomeMy WebLinkAboutZBA Minutes 2001-05-21 TOWN OF ITHACA ZONING BOARD OF APPEALS FILE MONDAY, MAY 219 2001 DATE mom 7 : 00 P . M . APPEAL of David Schaffner, Appellant , Barry Kasonic , Agent , requesting authorization from the Zoning Board of Appeals under Article XII , Section 54 of the Town of Ithaca Zoning Ordinance , to enlarge a non -conforming building/lot at 401 Winthrop Drive , Town of Ithaca Tax Parcel No . 72- 1 - 3 . 1 , Residence District R- 15 . The enlargement consists of room additions and outside wood decks with trellises . A variance from the requirements of Article IV , Section 14 of the Ordinance is also being requested to allow said decks to encroach within the 30-foot rear yard building setback . APPEAL GRANTED APPEAL of Significant Elements of Historic Ithaca Appellant , Diane Cohen , Agent , requesting a use variance from the requirements of Article V , Section 18 of the Town of Ithaca Zoning Ordinance , to permit the use of an old school building for the operation of a commercial retail architectural salvage operation at 855 Five Mile Drive , Town of Ithaca Tax Parcels No . 31 -2 - 15 , - 16 , Residence District R-30 . Said Ordinance does not permit retail operations in an R -30 zone . APPEAL GRANTED APPEAL of Timothy and Linda Hinkin , Owners/Appellants , Ernie Bayles , Agent , requesting authorization from the Zoning Board of Appeals under Article XII , Section 54 of the Town of Ithaca Zoning Ordinance , to enlarge a nonconforming building with the addition of an 1 , 080 square foot second story addition and 60 feet on the ground floor, at 918 East Shore Drive , Town of Ithaca Tax Parcel No , 18-5 - 14 , Residence District R- 15 . Said building is nonconforming as it extends beyond property lines , with part of the property being adjacent to Cayuga Lake . A similar appeal was granted on November 8 , 2000 , but has since been modified with a larger addition . APPEAL GRANTED APPEAL of Frank Rogan , Appellant , requesting a special approval from the Zoning Board of ti Appeals under Article VII , Section 32 , 33 , and 34 of the Town of Ithaca Zoning Ordinance , to be permitted to modify previously approved retail and food services at Franco ' s Restaurant and Rogan 's Corner pizza shop and convenience store to permit additional seating and the construction of accessory structures at 823-825 Danby Road , Town of Ithaca Tax Parcel No . 40-4- 2 , Business District A . Said uses were granted previous approvals in the 1980s and 1990s . Additionally , variances from the requirements of Sections 37 and 38 of said Ordinance are being requested to allow for the parking of vehicles and accessory structures to be within the required front yard (setback of 50 feet) and side yard ( setback of 30 feet) . APPEAL GRANTED FILE TOWN OF ITHACA ZONING BOARD OF APPEALS DATE MONDAY, MAY 21 , 2001 7 : 00 PM PRESENT : Kirk Sigel , Chairperson ; Harry Ellsworth , Board Member; David Stotz , Board Member (7 : 22 p . m . ) ; Ronald Krantz , Board Member; James Niefer, Board Member; Andy Frost , Director of Building/Zoning ; John Barney , Attorney for the Town (7 : 17) ; Mike Smith , Environmental Planner. ALSO PRESENT : Bill Seldin , 120 Northview Road ; Frank Rogan , Franco 's Restaurant ; Jim Napoleon , Syracuse NY ; David Herrick , TG Miller; Eric Bayles , 527 1 /2 North Aurora Street ; Barry Kasonic , 900 Taber Street ; Diane Cohen , Historic Ithaca ; George Lyons , Historic Ithaca ; Margery and David Rumsey , 110 Buttermilk Falls Road . Chairperson Sigel called the meeting to order at 7 : 06 p . m . The first appeal to be heard was as follows : APPEAL of David Schaffner, Appellant , Barry Kasonic , Agent , requesting authorization from the Zoning Board of Appeals under Article XII , Section 54 of the Town of Ithaca Zoning Ordinance , to enlarge a non -conforming building/lot at 401 Winthrop Drive , Town of Ithaca Tax Parcel No . 72- 1 - 3 . 1 , Residence District R- 15 . The enlargement consists of room additions and outside wood decks with trellises . A variance from the requirements of Article IV , Section 14 of the Ordinance is also being requested to allow said decks to encroach within the 30-foot rear yard building setback . Barry Kasonic , 900 Taber Street - We would like the board to consider a deficiency in the 30 foot rear lot setback . We are adding a deck and trellis . The rear of the deck to the property line would be 25 feet . Chairperson Sigel - Are there modifications within the home? Mr. Kasonic - Yes . The depth of the lot is required to be 125 feet in an R- 15 zone . The depth of the lot is 100 feet . We need a variance . A new entranceway is going to be constructed in the front of the house with a covered porch . A studio will be constructed on the west side of the house . The studio will be for the owner's personal use . The addition is about 15 feet by 19 feet . The owners would like to convert the back of the present garage to a master bedroom suite . We would like to come out 6 feet by 16 feet to give a lot of light and another entrance . The front of the existing garage will be converted into a walk- in closet and bathroom facility for the bedroom . Mr. Krantz - Have any of the neighbors expressed a concern ? Mr. Niefer - My house is to the south of this property . I do not object to the project . It enhances the value of the properties in the neighborhood . Chairperson Sigel opened the public hearing at 7 : 11 p . m . With no persons present to be heard , Chairperson Sigel closed the public hearing at 7 : 12 p . m . ZONING BOARD OF APPEALS PAGE 2 MAY 21 , 2001 APPROVED°n"APPROVED - APPROVED - JUNE 18, 2001 - APPROVED - APPROVED - APPROVED ENVIRQ.,N,MENT-sAL1SSESSMENT : Mr. Smith - There is no significant impact from this project . RESOLUTION NO. 2001 -29 - ENVIRONMENTAL ASSESSMENT = David Schaffner, 401 Winthrop Drive, Tax Parcel No. 72. - 1 -3. 1 , Ma y 21 , 2001 . MOTION made by Harry Ellsworth, seconded by Ronald Krantz. RESOLVED, that this board makes a negative determination of environmental significance in the matter of David Schaffner, requesting authorization from the Zoning Board of Appeals under Article XII, Section 54 of the Town of Ithaca Zoning Ordinance, to enlarge al non-conforming building/lot at 401 Winthrop Drive, Town of Ithaca Tax Parcel No. 72- 1 -3. 1 , Residence District R- 15, based upon the findings in the environmental assessment review completed by Town Staff included in the packet of information given to the board. A vote on the motion resulted as follows: AYES: Sigel, Ellsworth, Krantz, Niefer. NAYS: None. ABSENT., Stotz. The motion was declared to be carried. RESOLUTION NO. 2001 -30 - Appeal of David Schaffner, 401 Winthrop Drive, Tax Parcel No. 72. 4 -3. 1 , May 21 , 2001 . MOTION made by Harry Ellsworth, seconded by Ronald Krantz. RESOLVED, that this board grants the appeal of David Schaffner, requesting authorization from the Zoning Board of Appeals under Article XII, Section 54 and a variance from Article VI, Section 14 of the Town of Ithaca Zoning Ordinance, to enlarge a non -conforming building and to allow new decks to have a rear yard setback of no less than 24 feet at 401 Winthrop Drive, Town of Ithaca Tax Parcel No. 72- 1 -3. 1 , Residence District R- 15 based on the following: a . the enlargement be done in accordance with the plans presented to the board in their packet; b. the applicant has met the requirements of Article XIV, Section 77; Paragraph 7, Subparagraphs a -h . A vote on the motion resulted as follows: AYES: Sigel, Ellsworth, Krantz, Niefer. NAYS: None. ABSENT. Stotz. ZONING BOARD OF APPEALS PAGE 3 MAY 217 2001 APPROVED - APPROVED - APPROVED - JUNE 18, 2001 - APPROVED - APPROVED - APPROVED The motion was declared to be carried. The second appeal to be heard was as follows : APPEAL of Significant Elements of Historic Ithaca Appellant , Diane Cohen , Agent , requesting a use variance from the requirements of Article V , Section 18 of the Town of Ithaca Zoning Ordinance , to permit the use of an old school building for the operation of a commercial retail architectural salvage operation at 855 Five Mile Drive , Town of Ithaca Tax Parcels No . 31 -2- 15 , - 16 , Residence District R-30 . Said Ordinance does not permit retail operations in an R-30 zone . Dianne Cohen , Historic Ithaca - Historic Ithaca is proposing to have an architectural salvage retail operation in the old Waldorff School building . We would use the building as it exists . Chairperson Sigel - Is Historic Ithaca the current owner? Ms . Cohen - No . Historic Ithaca has a purchase offer on the property , but it is contingent on the use variance . Chairperson Sigel - Are there any exceptions for non - profit organizations having a commercial use in a residential district ? Attorney Barney - No . They need to meet all criteria for a use variance . Chairperson Sigel - A use variance requires that evidence be demonstrated that the property as it is cannot realize a reasonable economic return for all its allowed uses . Historic Ithaca is not the owner. George Lyons , Historic Ithaca - The property has been on the market for a considerable amount of time as a school . There has been no interest in the building as a school . It does not meet new educational requirements for a school . It would be out of code compliance for that use and very expensive to turn it into such a use . Mr. Frost - I received a number of calls regarding the property . I would have needed to refer the interested parties to the board for a use variance . Chairperson Sigel - Is the interior of the building set- up for use as a private home ? Mr. Frost - It was built as a school in the 1930s . I have had discussions with people who were interested in a Yoga School with related retail sales . Mr. Lyons - The building does sit on the corner of Route 13 and Route 13b . It is a traveled corner. Mr. Ellsworth - Is there a distance between this property and the nearest home ? Mr. Frost - Yes . Prior to the Waldoff School occupying the building it was vacant for a long time . It has been the subject of variances in the past . ZONING BOARD OF APPEALS PAGE 4 MAY 212 2001 APPROVED - APPROVED - APPROVED - JUNE 18, 2001 - APPROVED - APPROVED - APPROVED Chairperson Sigel - It would be good to see the building be used . Mr. Lyons - Historic Ithaca has a habit of saving buildings that they enter. We are dedicated to the preservation of this site . It is an early 1900s school . It adds to the hlistory of the Town of Ithaca to recognize its historic structures . This building is in good shape and only needs minimal amount of work . Mr. Ellsworth - The building has all required utilities . Mr. Lyons - We only need to make repairs . We do not need to make any alterations to the site or building . We are currently out of compliance with the City of Ithaca with our timber frame structure inside the City limits . We do not have bathroom , office facilities , or they fire detection system required for the structure . Mr. Ellsworth - The area is also a potential location for a bus garage . Mr. Niefer - What do you propose to do with regard to the cleaning , repair and reconstruction of the old architectural facades from buildings? Many of the items might have lead paint . Mr. Lyons - We deal with those issues on a daily basis . We are currently dealing with them on the Cradit- Moore House and State Theater. Lead paint is not as big an issue with this structure . We are not going to have a lot of young children running around . There are ways to encapsulate the paint . We are going to do what is best for the architectural structure and the elnvironment . Everything we do is done in accordance with the law for abatement purposes . There are specific laws set up for how you remove and how you deal with lead based paint . We closely follow the laws . Ms . Cohen - There is ground level access to the first and second floors . We are planning to do refurbishing in a separate space . The retail showroom will be on the second floor. Mr. Niefer - Is there outdoor storage of items? Ms . Cohen - We currently do not have outdoor storage . We are surrounded by parking lots on four sides . There is no need for outdoor storage . Mr. Lyons - It is best for the materials that we are dealing with and for our ability to restore and resell them to keep them inside away from the elements . Historic Ithaca is not a junk shop . Our intention is to take these elements and put them back into use . It is not our intent to dump historic elements over the yard and leave things in a junk shop state . Our purpose is to make them safe and reusable so they can be returned to active use . Attorney Barney - What types of things are refurbished ? Ms . Cohen - Our main stock is doors and windows . We could use more space for porcelain plumbing fixtures . Claw bathtubs are extremely popular. There is a long list of details that include light fixtures and porch details . ZONING BOARD OF APPEALS PAGE 5 MAY 217 2001 APPROVED - APPROVED - APPROVED - JUNE 18, 2001 - APPROVED - APPROVED - APPROVED Mr . Ellsworth - The board needs to make sure that the items are immediately stored inside . We have had other applicants before the board that have treated items differently . Mr. Lyons - Historic Ithaca is a quasi- public entity . We are worried about our public view . The public is involved with everything that we do . We are in the paper every couple days . We do strive to keep a good place within society . Mr. Ellsworth - Is this run by all volunteer personnel ? Mr. Lyons - Ms . Cohen is a full -time management person and I direct Ms . Cohen . We will have more full -time employees involved , as we are able to expand . We do have a stable volunteer base for the operation . Attorney Barney - Are the items sold or are they for reuse for Historic Ithaca projects? Ms . Cohen - It is a retail business for homeowners and contractors . Chairperson Sigel - What are the anticipated hours of operation ? Mr. Lyons - We anticipate when the site becomes fully operational we will be open for a full days operation , 9 : 00 a . m . to 5 : 00 p . m . We are transitioning from a small space into a large space . We only have partial hours at this time . Chairperson Sigel - What are the hours that someone would be working on items ? Ms . Cohen - There will be one day a week when we do salvage pick- up and refurbishing . Chairperson Sigel - Will items be restored other hours than regular business hours? Mr. Lyons - No . The intention is to have security at night . No one would be actively using the site . Mr. Krantz - The area floods easily and there is a small stream near the property . Mr. Lyons - We are taking every precaution . There are certain restrictions that have to be used in order to do this work . We are following those specifically . The first time it was in the paper we dumped lead paint into any stream we would certainly be up a creek . We do follow these restrictions . Any work that we do will be done very protectively . It will not be left on site or in an area where it could get into the water stream . Mr. Stotz - Will there be any large trucks on site ? Ms . Cohen - We will have a full size van or pick- up truck . Mr. Stotz - How many people do you anticipate being there at one time and what kinds of vehicles will they drive ? ZONING BOARD OF APPEALS PAGE 6 MAY 21 , 2001 APPROVED - APPROVED - APPROVED - JUNE 18, 2001 - APPROVED - APPROVED - APPROVED Ms . Cohen - It will be similar to an antique store . There will be some contractors with pick- ups . Customers may increase on Saturdays . Mr. Lyons - The existing gravel circle can hold between 5 and 7 vehicles . It is unlikely that there will be that many people at the same time . Mr. Krantz - It will be less traffic than at the Waldorff School . Chairperson Sigel opened the public hearing at 7 : 33 p . m . With no persons present to be heard , Chairperson Sigel closed the public hearing at 7 : 34 p . m . ENVIRONMENTAL ASSESSMENT : Mr. Smith - It does not appear that this proposal will have an impact on the unique natural area or the parking . RESOLUTION NO. 2001 -31 - ENVIRONMENTAL ASSESSMENT - Significant Elements of Historic Ithaca, 855 Five Mile Drive, Tax Parcel No. 31 . -245, 46, May 21 , 2001 . MOTION made by David Stotz, seconded by Ronald Krantz. RESOLVED, that this board makes a negative determination of environmental significance in the matter of Significant Elements of Historic Ithaca, requesting a use variance from the requirements of Article V, Section 18 of the Town of Ithaca Zoning Ordinance, to permit the use of an old school building for the operation of a commercial retail architectural salvage operation at 855 Five Mile Drive, Town of Ithaca Tax Parcels No. 31 -2- 15, - 16, Residence District R-30, based upon the findings in the environmental assessment review completed by Town Staff dated May 10, 2001 . A vote on the motion resulted as follows: AYES: Sigel, Ellsworth, Stotz, Krantz, Niefer. NAYS: None. The motion was declared to be carried unanimously. Chairperson Sigel - We do need to address financial hardship . It is a requirement of a use variance . Mr. Lyons - The building has been on the market for a long period of time as a school . There would need to be work done to the building to put it into code compliance for school . Attorney Barney - How long has it been on the market ? Ms . Cohen - It has been on the market for at least one year. Mr. Frost - The property was vacant before it was sold to Waldorff School . ZONING BOARD OF APPEALS PAGE 7 MAY 217 2001 APPROVED - APPROVED - APPROVED - JUNE 18, 2001 - APPROVED - APPROVED - APPROVED Mr. Stotz - I am surprised there is not a representative from Waldorff School pleading their case to sell the property . Mr. Lyons - The Waldorff School has been very anxious to get us in the building . They have been pushing us . Our deadline is tomorrow after this meeting . Mr. Stotz - I would be interested in knowing what the implications would be for Waldorff School if they kept this property on the market . Mr. Lyons - The school is in ownership of the property . They are required to pay taxes and upkeep , but they do not have a school to build an income to put into the property . Mr. Stotz - Financial hardship is a critical issue in a use variance . Mr. Niefer - Would a delay in a decision impact your plans? Mr. Lyons - Yes . We were intending to be at the last meeting , but we were pushed to this meeting . Placing an additional contingency on the purchase agreement might mean that one or both parties would walk away from the deal . Mr. Frost - The Waldorff School is different than a normal business . The organization does not have full time staff left in the area . Chairperson Sigel - Have you been dealing with someone locally? Ms . Cohen - We have been going through a real estate agent . Mr. Krantz - Financial hardship is a reasonable assumption in this case . Chairperson Sigel - The financial evidence is anecdotal at best . Mr. Frost - The building was built as a school . We reviewed code compliance when Waldorff School bought the building . There would not need to be a lot of modifications . Mr. Stotz - It would be difficult to have the building available as a residence . Mr. Frost - I am not sure it would be qualified as a residence . I do not envision the Ithaca City School District purchasing the building to make a public school . Montessori School is one of the only private schools in the area . Mr. Stotz - Is the property a historic site ? Mr. Lyons - It is a historic site . It is one of the earliest Indian settlements in this area . The school building has been around since before 1866 . ZONING BOARD OF APPEALS PAGE 8 MAY 21 , 2001 APPROVED - APPROVED - APPROVED - JUNE 18, 2001 - APPROVED - APPROVED - APPROVED Attorney Barney - The Zoning Ordinance states that no use varignce shall be granted without showing by the applicant a necessary hardship . The applicant needs to prove a hardship by demonstrating to the Zoning Board of Appeals that under applicable zoning regulations the applicant is deprived of all economic use or benefit from the property in question . Deprivation must be established by competent financial evidence . Mr. Niefer - Did you explore the requirements of a use variance ? Mr. Lyons - Yes . Mr. Salk has been advising us on the application . We can demonstrate our own fiscal need to have a variance put on the property . It is clearly evident that the allowed use is not the best use for the building . It has failed as a private school . Public or private schools have not expressed an interest in the property . I do not feel its best use would bye a residence . Mr. Ellsworth - I think it is a perfect fit for Historic Ithaca . It is in a residential district , but set in a commercial neighborhood . We have not heard complaints for neighbors . It would be a hardship if tomorrow goes by and this is not settled . The owner has a hardship . The Town is probably wondering if taxes will be paid . Attorney Barney - The property could be sold for back taxes if the taxes are not paid . There are other uses permitted in R-30 . I do not know if other uses would comply . Mr. Lyons - Any use dealing with daycare will result in a remediation issue with the lead paint . Mr. Ellsworth - It would be a hardship to have to remove the asbestos , lead paint and other hazardous materials . I have been involved with old buildings . Buildings that age have asbestos under the roof tiles . Mr. Stotz - These items could cause a financial hardship . The other side of the equation is what causes the financial hardship . The person who owns the building could have substantial assets . Attorney Barney - The building is more valuable if it can be used without all the remediation . The problem is it is usually necessary to have dollars and cents . RESOLUTION NO. 2001 -32 - Appeal of Significant Elements of Historic Ithaca, 855 Five Mile Drive, Tax Parcel No. 31 . -245, - 16, May 21 , 2001 . MOTION made by Harry Ellsworth, seconded by James Niefer. RESOLVED, that this board grants the appeal of Significant Elements of Historic Ithaca, requesting a use variance from the requirements of Article V, Section 18 of the Town of Ithaca Zoning Ordinance, to permit the use of an old school building for the operation of a commercial retail architectural salvage operation at 855 Five Mile Drive, Town of Ithaca Tax Parcels Nos. 31 -2- 15, - 16, Residence District R-30 based upon the following findings and conditions: Findings: ZONING BOARD OF APPEALS PAGE 9 MAY 21 , 2001 APPROVED - APPROVED - APPROVED - JUNE 18, 2001 - APPROVED - APPROVED - APPROVED a . the applicant cannot obtain a reasonable economic return from the property; and b. this property has been up for sale since the Waldorff School closed, and c. the cost of converting the building to another permitted use exceeds the value of the building; and d. the requested use will not alter the character of the neighborhood; and e. the alleged hardship is unique; and f. the alleged hardship has not been self-created, and g. this property is unique in that it is bounded by two major roads on each side, it is a very small parcel and is not conducive to be occupied as a residence. Conditions: a . there be no outdoor storage of any merchandise; and b. all work done on the premises be done in accordance with all appropriate laws, rules and regulations; and c. that the variance be time limited for a period of ten years. A vote on the motion resulted as follows: AYES: Ellsworth, Krantz, Niefer. NAYS: Sigel, Stotz. The motion was declared to be carried. The third appeal to be heard was as follows : APPEAL of Timothy and Linda Hinkin , Owners/Appellants , Ernie Bayles , Agent , requesting authorization from the Zoning Board of Appeals under Article XII , Section 54 of the Town of Ithaca Zoning Ordinance , to enlarge a nonconforming building with the addition of an 1 , 080 square foot second story addition and 60 feet on the ground floor, at 918 East Shore Drive , Town of Ithaca Tax Parcel No . 18-5 - 14 , Residence District R- 15 . Said building is nonconforming as it extends beyond property lines , with part of the property being adjacent to Cayuga Lake . A similar appeal was granted on November 8 , 2000 , but has since been modified with a larger addition . Ernie Bayles , 527 1 /2 North Aurora Street - Mr. and Mrs . Hinkin received approval last November for a variance for a non -conforming property to add a second story addition . Their plan at that time was to add the second story over the portion of the building that they thought made sense . The variance was granted . They then came to me to develop plans . I started to work with their proposal and made ZONING BOARD OF APPEALS PAGE 10 MAY 21 , 2001 APPROVED - APPROVED - APPROVED - JUNE 18, 2001 - APPROVED - APPROVED - APPROVED some suggestions that would make it more successful and cost effective . The result was a slightly larger addition because we are trying to fit this over an existing foundation and footprint . Mr. Frost thought it would be appropriate to bring the new configuration before the board . The previous proposal was to add 884 square feet to the second floor. The new proposal is to add 1 , 080 square feet on the second floor and a small area of 60 square feet to the first floor to accommodate a new staircase . Mr. Ellsworth - At the last meeting we spent a lot of time listening to the neighbor complain about losing view of the lake . The size of the second floor has been increased . How does this impact the view? Mr. Bayles - This current orientation is less objectionable because it presents a narrower fagade to the properties whose view would be impacted . The neighbor who was at odds with the project at that time no longer owns the property . Mr . Ellsworth - Are the new owners of the property aware of this project ? Mr. Bayles - I am certain . It is part of the requirements that the neighbors are notified of the appeal . The sign is posted . Mr. Ellsworth - Has the plan been shown to the new owners? Mr. Bayles - Mr. and Mrs . Hinkin have talked with the adjacent owners regarding their plans . Mr. Ellsworth - I do not like the way the application is worded . It leaves me to believe the addition is hanging over the property lines . Mr. Bayles - It is . The present building overhangs the property lines . I recall the minutes from this meeting last November. It stated the board had never seen a property that was so non -conforming . The building overhangs a manmade seawall and goes over Cayuga I Lake . It does hang over the property line if the property line is drawn at the edge of the seawall . It has been that way since the property was built in 1925 . Chairperson Sigel - I was strongly opposed to the variance last Nove I ber. I still feel the same way . The lot is less than one third of the required lot size for an R- 15 zones. It extends over the property line . I do not think it is appropriate to build a second story , particularly with the proximity of homes behind it . Mr. Bayles - The improvements would improve the character of the neighborhood . It may detract from someone ' s view of the lake , but it will improve someone' s view of a ratty little shack . The Hinkins are experiencing a hardship . They need an addition to adequately use the house . Chairperson Sigel - The lot is so small and the house is so non -conforming that you should not be allowed to do anything substantial to the house . Reasonable upgrading to the home might require some variances . ZONING BOARD OF APPEALS PAGE 11 MAY 21 , 2001 APPROVED - APPROVED - APPROVED - JUNE 18, 2001 - APPROVED - APPROVED - APPROVED Mr. Stotz - Is any portion of the proposed new addition going to be over the lake? Mr. Bayles - The corner of the house will be over the property line . The original proposal was to extend over the property line at a different location . We have rotated the addition 90 degrees . The degree to which we are extending over the seawall has been reduced . Mr. Ellsworth - Is there less now hanging over the wall than previously approved ? Mr. Bayles - Yes . Attorney Barney - The last proposal did not alter the footprint . Mr. Bayles - The original footprint does have one corner hanging over the seawall . The existing roofline does continue a 90-degree corner. The floor plan has the same corner cutoff . Mr. Krantz - I agree with Chairperson Sigel . Chairperson Sigel opened the public hearing at 8 : 12 p . m . With no persons present to be heard , Chairperson Sigel closed the public hearing at 8 : 13 p . m . ENVIRONMENTAL ASSESSMENT : Mr. Smith - The board should also consider the view from the lake and Stewart Park towards the house . Mr. Bayles - Is the previous variance granted in November still in effect if this variance is not passed ? Chairperson Sigel - Yes . Mr. Bayles - The new plan is a much more attractive plan . Attorney Barney - What is the sense of the board on this application ? Mr. Niefer - I favor granting the variance . It enhances the value of the neighborhood . I do not see that it will have a significant impact on anyone's neighboring interest . There are no neighbors protesting the project . Attorney Barney - The board would need to require the applicant to get approval from all required agencies for the corner that overhangs the seawall . The Town does not have the authority to permit something to be built over the lake . Mr. Krantz - I would vote against the project . Mr. Stotz - I am undecided . On the one hand it has a narrower view from the lake . They are also encroaching over the lake . ZONING BOARD OF APPEALS PAGE 12 MAY 21 , 2001 APPROVED - APPROVED - APPROVED - JUNE 18, 2001 - APPROVED - APPROVED - APPROVED Mr. Frost - The encroachment on the lake is less than a dock . Mr. Ellsworth - I agree with Mr. Niefer. Chairperson Sigel - I would vote against the project . Attorney Barney - The board could skip over the environmental assessment if you are inclined to vote against the project for environmental reasons . Mr. Stotz - I will vote in favor of the project . RESOLUTION NO. 2001 -33 - ENVIRONMENTAL ASSESSMENT - Timothy & Linda Hinkin, 918 East Shore Drive, Tax Parcel No. 18. m544, May 21 , 2001 . MOTION made by Ronald Krantz, seconded by Harry Ellsworth . RESOLVED, that this board makes a negative determination of environmental significance in the matter of Timothy and Linda Hinkin, requesting authorization from the Zoning Board of Appeals under Article XII, Section 54 of the Town of Ithaca Zoning Ordinance, to enlarge a nonconforming building with the addition of an 1 , 080 square foot second story addition and 60 feet on the ground floor, at 918 East Shore Drive, Town of Ithaca Tax Parcel No . 18-5- 14, Residence District R- 15, based upon the findings in the environmental assessment review completed by Town Staff included in the packet of information given to the board. A vote on the motion resulted as follows: AYES: Ellsworth, Stotz, Krantz, Niefer. NAYS: Sigel. The motion was declared to be carried. RESOLUTION NO. 2001 -34 - Appeal of Timothy & Linda Hinkin, 918 East Shore Drive, Tax Parcel No. 18. -5- 14, MaV 21 , 2001 . MOTION made by David Stotz, seconded by James Niefer. RESOLVED, that this board grants the appeal of Timothy and Linda Hinkin, requesting authorization from the Zoning Board of Appeals under Article X11, Section 54 off the Town of Ithaca Zoning Ordinance, to enlarge a nonconforming building with the addition of an 1 , 080 square foot second story addition and 60 feet on the ground floor, at 918 East Shore Drive, Town of Ithaca Tax Parcel No. 18-5- 14, Residence District R- 15 based upon the following conditions: a . the addition be in conformance with the plans submitted; and b. no construction occur until all required permits have been obtained. ZONING BOARD OF APPEALS PAGE 13 MAY 21 , 2001 APPROVED - APPROVED - APPROVED - JUNE 18, 2001 - APPROVED - APPROVED - APPROVED A vote on the motion resulted as follows: AYES: Ellsworth, Stotz, Niefer. NAYS: Sigel, Krantz. The motion was declared to be carried. The fourth appeal to be heard was as follows : APPEAL of Frank Rogan , Appellant , requesting a special approval from the Zoning Board of Appeals under Article VII , Section 32 , 33 , and 34 of the Town of Ithaca Zoning Ordinance , to be permitted to modify previously approved retail and food services at Franco ' s Restaurant and Rogan ' s Corner pizza shop and convenience store to permit additional seating and the construction of accessory structures at 823-825 Danby Road , Town of Ithaca Tax Parcel No . 40-4- 2 , Business District A . Said uses were granted previous approvals in the 1980s and 1990s , Additionally , variances from the requirements of Sections 37 and 38 of said Ordinance are being requested to allow for the parking of vehicles and accessory structures to be within the required front yard (setback of 50 feet) and side yard (setback of 30 feet) . Bill Seldin , 120 Northview Road - Eight years ago the restaurant and pizza/convenience store came into being . The proposed site plan was ultimately approved by the Planning Board on May 1St . With that approval , they noted the wooden deck , two wooden storage sheds , and the relocation of six parking spaces . We received approval for Franco ' s to seat 130 persons and Rogan ' s Corners to seat 40 persons . A number of concerns were expressed over the course of two meetings with the Planning Board . There are no residential neighbors surrounding the parcel . The Planning Board expressed a concern regarding the parking spaces that encroached on the road right-of-way . The six spaces have been moved back . There was an encroachment along the northerly line . We have a written encroachment agreement with that property. The adjacent property owner agrees to the encroachments . We have a formal lease agreement for 25 years for 10 additional parking spaces on Mr. Fish ' s property. The number of parking spaces exceeds the requirements under the ordinance . We have deleted two spaces . We now have one more parking space than what is required for the seating . We thought the big issue was going to be the traffic . Jim Napoleon completed a traffic study . It was completed while the students were out of town . Mr. Napoleon came back and performed a new traffic study. The Planning Department did not feel there was a traffic problem . The outdoor seating is only available from mid May to September. None of the uses overlap . Students use the facility primarily from the end of August through May . The deck is available for use in the summer months . The peak for Rogan ' s Corners is around noon during the day. The peak time for Franco' s is in the evening . The uses complement each other. The Planning Department reports that access to the site is from Danby Road or Coddington Road . The visibility and access from both sites is adequate . The amount of patronage use at Franco' s and Rogans has been established for over a 6 year period . There is no evidence that this has created any significant impact on traffic volumes in the area . We have a historical experience that leads everyone to believe this configuration works . ZONING BOARD OF APPEALS PAGE 14 MAY 21 , 2001 APPROVED - APPROVED - APPROVED - JUNE 18, 2001 - APPROVED - APPROVED - APPROVED The Planning Board considered the hardship to be self-created . We met it head on . Attorney Barney suggested that the Town imposed sanctions . The history is that when we received the variance in 1991 , the restaurant was created . There was every reason to believe that the restaurant would support itself . In its first 3 years of operation , there was a $61 , 000 loss . The restaurant could not support itself during that period of time without the deck . We have a marginal profit with the deck . There is no reason for Mr. Rogan to continue the operation of his restaurant without the deck . People wait inside during the summer waiting for a seat on the deck . It is not an excuse for what happened . We made it clear to the Planning Board that we do not have excuses . A process was followed . We did not negotiate the result . We agreed to be responsible monetarily . We agreed that there needs to be a message sent for this kind of history . I have appeared before the Zoning Board of Appeals a number of times . I have not represented anything that was not so . We desperately need the variances for the business to continue . There are no residential neighbors . It does not impact on anyone in a negative way in adjacent areas . The storage sheds are used to store equipment and paper products . We have signed leases and encroachment agreements . Mr. Stotz - There is a refueling area on the site . It seems that it is a tight area between the refueling area and the parking spaces . Frank Rogan , Franco 's Restaurant - A car can drive through when thele are people fueling with a full length station wagon being parked in the parking area . The cement pad protects the blacktop if there is a spill . Mr. Stotz - Did you research accident statistics on Route 9613 ? Mr. Rogan - Yes . The NYSDOT gave us a report of the last 3 years . There were no accidents at either entrance . I do not recall any accidents . Mr. Stotz - Is there going to be screening around the dumpsters? Mr. Rogan - There is fence around the dumpster area . Mr. Stotz - Is there enough space for cars to maneuver? There have been times where cars have been lined up to find a parking space . Mr. Rogan - We have not had a problem with it in the past . Mr. Seldin - The site has been in existence for 4 years in its present configuration . There may be an occasion where that happens , but it has not been the experience . Chairperson Sigel - Is the only change to the site the relocation of parking spaces along Route 9613 ? Mr. Seldin - Correct . ZONING BOARD OF APPEALS PAGE 15 MAY 217 2001 APPROVED - APPROVED - APPROVED - JUNE 18, 2001 - APPROVED - APPROVED - APPROVED Chairperson Sigel opened the public hearing at 8 : 40 p . m . With no persons present to be heard , Chairperson Sigel closed the public hearing at 8 : 41 p . m . ENVIRONMENTAL ASSESSMENT . Mr. Smith - The variances have been working for the past several years . Mr. Stotz - How many seats will there be in Franco's? Mr. Seldin - There are 130 seats in the restaurant . Chairperson Sigel - Was the previously granted 44 seats shared between the restaurant and convenience store specified ? Mr. Seldin - No . The seats were not specified . RESOLUTION NO. 2001 -35 - ENVIRONMENTAL ASSESSMENT - Frank Rogan, 823-825 Danby Road, Tax Parcel No. 40. 4-2, May 21 , 2001 . MOTION made by David Stotz, seconded by Harry Ellsworth. RESOLVED, that this board makes a negative determination of environmental significance in the matter of Frank Rogan, requesting a special approval from the Zoning Board of Appeals under Article Vll, Section 32, 33, and 34 of the Town of Ithaca Zoning Ordinance, to be permitted to modify previously approved retail and food services at Franco 's Restaurant and Rogan 's Corner pizza shop and convenience store to permit additional seating and the construction of accessory structures at 823-825 Danby Road, Town of Ithaca Tax Parcel No, 40-4-2, Business District A, based upon the findings made in the environmental assessment review completed by Town Staff dated May 9, 2001 . A vote on the motion resulted as follows: AYES: Sigel, Ellsworth, Stotz, Krantz, Niefer. NAYS: None. The motion was declared to be carried unanimously. Mr. Stotz - Would the business close if these variance are not granted ? Mr. Seldin - Yes . Mr. Rogan cannot continue to operate the business as a loss . RESOLUTION NO. 2001 -36 - Appeal of Frank Ropan, 823-825 DanbV Road, Tax Parcel No. 40. - 4-2, Ma 21 , 2001 . MOTION made by Kirk Sigel, seconded by Harry Ellsworth. ZONING BOARD OF APPEALS PAGE 16 MAY 217 2001 APPROVED - APPROVED - APPROVED - JUNE 18, 2001 - APPROVED - APPROVED - APPROVED RESOLVED that this boardrants the appeal of Frank Roganre I estin a modification of a use g PP 9 � qi 9 variance from the Zoning Board of Appeals under Article VII, Section 32, 33 and 34 of the Town of Ithaca Zoning Ordinance, to be permitted to have a total of 170 seats in the two food service establishments, 40 of which are located in Rogan 's Corner pizza shop and convenience store and 130 of which are located in Franco 's Restaurant at 823-825 Danby Road, Town of Ithaca Tax Parcel No. 40-4 -2, Business District A based upon the following finding: a . the requirements of the use variance have been met. A vote on the motion resulted as follows: AYES: Sigel, Ellsworth, Stotz, Krantz, Niefer. NAYS: None. The motion was declared to be carried unanimously. RESOLUTION NO. 2001 -37 - Appeal of Frank Rogan, 823-825 DanbV Road, Tax Parcel No. 40. - 4-2, Ma 21 , 2001 . MOTION made by Kirk Sigel, seconded by David Stotz. RESOLVED, that this board grants the appeal of Frank Rogan, requesting variances from the Zoning Board of Appeals from the requirements of Sections 37 and 38 of the Town of Ithaca Zoning Ordinance, to be permitted to have parking and accessory structures within the required front yard setback of 50 feet and side yard setback of 30 feet, specifically allowing Franco 's Italian Restaurant identified as building 3 to be no less than 18 feet from the side yard, allowing a 225 square foot wood storage shed on the north end of Rogan 's Corner Laundry identified as building 2 to be located no less than 1 inch from the property line, allowing a waste and receptacle bin area behind building 2 to have a setback of zero feet with an encroachment agreement with the neighbor, allowing a 355 square foot wood storage shed on the south end of Rogan 's Corner pizza shop identified as building 1 to be no less than 13 feet from the property line, allowing the addition of 6 parking spaces identified as spaces 27 to 32 in the front yard as shown on the submitted plans, and allowing the deck to be no closer than 5 feet from the side yard property line at 823-825 Danby Road, Town of Ithaca Tax Parcel No. 40-4 -2, Business District A, based upon the following condition : a . the conditions imposed by the Planning Board be met. A vote on the motion resulted as follows: AYES: Sigel, Ellsworth, Stotz, Krantz, Niefer. NAYS: None . The motion was declared to be carried unanimously. The fifth appeal to be heard was as follows : ZONING BOARD OF APPEALS PAGE 17 MAY 21 , 2001 APPROVED - APPROVED - APPROVED - JUNE 18, 2001 - APPROVED - APPROVED - APPROVED DECISION of Margaret Rumsey , 110 East Buttermilk Falls Road . Mr. Stotz - Is the profit and loss statement the basis for tax filing in 1999 ? David Rumsey, 110 East Buttermilk Falls Road - Yes . This is from Schedule C of the tax returns . Chairperson Sigel - Several months ago the board voted and the vote was 2 to 1 . The board could reintroduce that motion . Mr. Stotz - Is the business a losing proposition with the Arbor cottage ? Mr. Rumsey - It is essentially right . The bed and breakfast industry has gone past its surge and growth . Without the extended variance , it is not profitable . We have not filed the 2000 tax return . We have broken down the expenses of Schedule C . Mr. Stotz - Can you define at how you arrived at the cost of goods sold since this is a service business? Mr. Rumsey - It is a combination of food items and other items that are given away with the room . The primary cost is the breakfast . Mr. Stotz - What is travel , meals and entertainment? Mr. Rumsey - It primarily relates to travel of the owner. It is her expenses involved when visiting other bed and breakfasts . It is not an unusual expense . Mr. Krantz - The expenses stayed the same in 1998 and 1999 . Would there be a profit for 2000? Margery Rumsey , 110 East Buttermilk Falls Road - I had a small profit for 2000 . Chairperson Sigel - I voted against the appeal because I felt it is unreasonable to expect a residential property to return a profit in the traditional business sense . People do not expect their homes to make money for them . I also felt that allowing the use of a cottage was beyond what I think is reasonable in a residential district . This is a special district and is close to commercial development . Mr. Rumsey presented an aerial photograph of the property. Mr. Rumsey - This property is located in a commercial area . Mrs . Rumsey does not have any residential neighbors . They are located on West Buttermilk Falls Road . There is nothing any of us can do to keep the area residential . My family has owned the house for the last 5 generation . The park is part of the farmhouse . Mr. Niefer - I support the first resolution that came up on this issue . I would like to reintroduce the original resolution . ZONING BOARD OF APPEALS PAGE 18 MAY 2112001 APPROVED - APPROVED - APPROVED - JUNE 18, 2001 - APPROVED - APPROVED - APPROVED Mr. Stotz - Should condition " e " of the resolution be prior to the issuance of a Certificate of Compliance or Certificate of Occupancy? Attorney Barney - It is prior to the issuance of a Certificate of Compliance . The condition is taking care of the old issues that bring the property into compliance . RESOLUTION NO. 2001 =38 - Appeal of Margaret RumseV, 110 EaIst Buttermilk Falls Road, Tax Parcel Number 38. - 1 -2, MaV 21 , 2001 . MOTION made by James Niefer, seconded by Harry Ellsworth. RESOLVED, that this board grants the appeal of Margaret Rumsey, Irequesting a variance from the requirements of Article V, Section 18 and 19, and Article Xlll, Section 68 of the Town of Ithaca Zoning Ordinance, to be permitted to maintain a Bed and Breakfast operation with a maximum of ten guests in a single-family residence and a maximum of four guests in a detached second dwelling unit at 110 East Buttermilk Falls Road, Town of Ithaca Tax Parcel No. 38- 1 -2, Residence District R-30, based upon the following findings and conditions: Findings: a . the applicant cannot obtain a reasonable economic return from the property; and b, an insufficient return has been established by the submitted expense and tax information; and this property is unique in that it it surrounded on two sides b a C. the alleged hardship relating to p p y q y State park, one side by the commercial area of the City of Ithaca, and one side by a piece of property owned by the applicant, which they find difficult to rent due to the nature of the area; and d. this variance will not alter the essential character of the neighborhood since the bed and breakfast has been established for several years; and e. the alleged hardship has not been self-created; and Conditions: a . the property must be owner occupied; and b, no more than four bedrooms in the main house are to be rented at one time; and C. this variance is granted for five years expiring May 21 , 2006; and d. prior to the issuance of a Certificate of Occupancy the property must be brought into full compliance with applicable building codes; and ZONING BOARD OF APPEALS PAGE 19 MAY 21 , 2001 APPROVED - APPROVED - APPROVED - JUNE 18, 2001 - APPROVED - APPROVED - APPROVED e. prior to the issuance of any Certificate of Compliance that the applicant submit proof from the Tompkins County Health Department that the property is in full compliance with their codes, in particular the codes relating to septic disposal; and f, the number of overnight guests in the main house not at any time exceed ten persons; and g. the number of overnight guests in the cottage not at any time exceed four persons; and h , the variance as it relates to the second dwelling unit continue only so long as it is operated as an integrated part of the bed and breakfast operation on the premises as a whole. The vote on the motion resulted as follows: AYES: Ellsworth, Stotz, Krantz, Niefer. NAYS: Sigel. The motion was determined to be carried. OTHER BUSINESS : Attorney Barney - We sent the board a copy of Judge Mulvey' s decision in the Eddy case . The judge did not find evidence to support the decision made by this board . We think that there is evidence there . It is a close call . We have a good shot of winning an appeal . The Town Board discussed the matter. They made clear that the Zoning Board of Appeals could choose to appeal the matter and they would support the decision . I need guidance from the Zoning Board of Appeals . Mr. Stotz - What are the implications with the expansion of Linderman Creek Apartments? Attorney Barney - The appeal is on the record that exists . We cannot create new information . We feel that we have a 55 to 60% chance of winning the appeal . When a judge reviews an action of the Zoning Board of Appeals , his review is supposed to be limited to whether there was substantial evidence supporting the decision of the board . The judge cannot choose to believe what one person said over another. The record needs to show evidence to substantiate the decision made . There was evidence . Mr. Ellsworth - The judge pointed out the board was in direct conflict with components of the Town . The Town Planning and Engineering Departments determined the project would not have an impact . Attorney Barney - If those findings were the determining factor, then we would not need this board . Mr. Ellsworth - This board has asked many times if we need to follow the recommendation of other agencies of the Town . We did not and the judge felt we were out of line . Attorney Barney - The judge leaped on that Jor making a basis of his decision . His role is to look at what evidence supported the board ' s decision . There is a case involving a similar issue in the Adirondacks where the courts seized on the fact that there had been no supervision and they did not disagree with the Zoning Board of Appeals . It was a little better documented in that case . ZONING BOARD OF APPEALS PAGE 20 MAY 21 , 2001 APPROVED - APPROVED - APPROVED - JUNE 18, 2001 - APPROVED - APPROVED - APPROVED Mr. Krantz - There is no reason for the board to exist if we have to make our decisions solely on staff recommendations . EXECUTIVE SESSION . On motion by Chairperson Sigel, seconded by Mr. Ellsworth, the Board moved into executive session at 9:23 p. m. to discuss litigation. Motion carried unanimously On motion by Chairperson Sigel, seconded by Mr. Stotz, the Board moved out of executive session at 9:56 p. m. Motion carried unanimously. Chairperson Sigel adjourned the meeting at 9 : 57 p . m . 1L � Kirk Sigel , Chairperson Carrie Whitmore , Deputy Town Clerk/Deputy Receive or Taxes TOWN OF ITHACA ZONING BOARD OF APPEALS NOTICE OF PUBLIC HEARINGS MONDAY, MAY 214, 2001 7 : 00 P.M. By direction of the Chairman of the Zoning Board of Appeals NOTICE IS HEREBY GIVEN that Public Hearings will be held by the Zoning Board of Appeals of the Town of Ithaca on Monday, May 21 , 2001 , in Town Hall, 215 North Tioga Street, Tioga Street Entrance, Ithaca, N.Y., COMMENCING AT 7 :00 P.M. , on the following matters: APPEAL of David Schaffner, Appellant, Barry Kasonic, Agent, requesting authorization from the Zoning Board of Appeals under Article XII, Section 54 of the Town of Ithaca Zoning Ordinance, to enlarge a non-conforming building/lot at 401 Winthrop Drive, Town of Ithaca Tax Parcel No. 72- 1 -3 . 1 , Residence District R45 . The enlargement consists of room additions and outside wood decks with trellises. A variance from the requirements of Article IV, Section 14 of the Ordinance is also being requested to allow said decks to encroach within the 30400t rear yard building setback. APPEAL of Significant Elements of Historic Ithaca Appellant, Diane Cohen, Agent, requesting a use variance from the requirements of Article V, Section 18 of the Town of Ithaca Zoning Ordinance, to permit the use of an old school building for the operation of a commercial retail architectural salvage operation at 855 Five Mile Drive, Town of Ithaca Tax Parcels No. 31 -245; 46, Residence District R-30. Said Ordinance does not permit retail operations in an R-30 zone. APPEAL of Timothy and Linda Hinkin, Owners/Appellants, Ernie Bayles, Agent, requesting authorization from the Zoning Board of Appeals under Article XII, Section 54 of the Town of Ithaca Zoning Ordinance, to enlarge a nonconforming building with the addition -of an 1 ,080 square foot second story addition and 60 feet on the ground floor, at 918 East Shore Drive, Town of Ithaca Tax Parcel No. 18-544, Residence District R45. Said building is nonconforming as it extends beyond property lines, with part of the property being adjacent to Cayuga Lake. A similar appeal was granted on November 8, 2000, but has since been modified with a larger addition. APPEAL of Frank Rogan, Appellant, requesting a special approval from the Zoning Board of Appeals under Article VII, Section 32, 33 , and 34 of the Town of Ithaca Zoning Ordinance, to be permitted to modify previously approved retail and food services at Franco ' s Restaurant and Rogan' s Comer pizza shop and convenience store to permit additional seating and the construction of accessory structures at 823-825 Danby Road, Town of Ithaca Tax Parcel No. 404-2, Business District A. Said uses were granted previous approvals in the 1980s and 1990s. Additionally, variances from the requirements of Sections 37 and 38 of said Ordinance are being requested to allow for the parking of vehicles and accessory structures to be within the required front yard (setback of 50 feet) and side yard (setback of 30 feet). Said Zoning Board of Appeals will at said time, 7 :00 p.m., and said place, hear all persons in support of such matters or objections thereto. Persons may appear by agent or in person. Individuals with visual or hearing impairments or other special needs, as appropriate, will be provided with assistance, as necessary, upon request. Persons desiring assistance must make such a request not less than 48 hours prior to the time of the public hearing. Andrew S . Frost Director of Building and Zoning 273- 1783 Dated: May 14, 2001 Published : May 16, 2001 TOWN OF ITHACA AFFIDAVIT OF POSTING AND PUBLICATION I, Dani L. Holford, being duly sworn, depose and say that I am the Town of Ithaca Building and Zoning Department Secretary, Tompkins County, New York; that the following notice has been duly posted on the sign board of the Town of Ithaca and that said notice has been duly published in the local newspaper, The Ithaca Journal. Notice of Public hearings to be held by the Town of Ithaca Zoning Board of Anneals in Town Hall 215 North Tioga Street, Ithaca, New York on Monday, May 21 2001 2001 commencing at 7 . 00 P.M ., as per attached Location of sign board used for posting: Town Clerk Sign Board — 215 North Tioga Street. Date of posting: May 14, 2001 Date of publication: May 16, 2001 1 Dani L. Holford, Building and Zoning De ent Secretary, Town of Ithaca STATE OF NEW YORK ) SS. : COUNTY OF TOMPKINS ) Sworn to and subscribed before me this loth day of May, 2001 . 1 buy, Notary Pubbll,, CARRIE WHITSVIORE Notary Public, State of New,'York No . 01 W H6052877 Tioga County Commission Expires December