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HomeMy WebLinkAboutZBA Minutes 2005-11-02 TOWN OF ITHACA ZONING BOARD OF APPEALS WEDNESDAY, NOVEMBER 2, 2005 7:00 P.M. PRESENT: Kirk Sigel, Chairperson; Harry Ellsworth, Board Member; Dick Matthews, Board Member; Ronald Krantz, Board Member; Jim Niefer, Board Member Jonathan Kanter, Director of Planning; David Dubow, Attorney for the Town; Christine Balestra, Planner. ABSENT: None OTHERS PRESENT: Tom Murray, 380 Pine Tree Rd; Michelle Mateo, 919 Elmira Rd; Kimberly Silvers, 102 McDuffee St, Sayre PA; Darcy Binns, 320 Forest Home Dr, Travis Cleveland, 1032.5 Danby Rd. Chairperson Sigel opened the meeting at 7:00 p.m. Chairperson Sigel - Good evening, and welcome to the, well this is actually the October meeting but it is taking place in November, of the Town of Ithaca Zoning Board of Appeals. Tonight we have four appeals, that of Courtside Racquet and Fitness, that of Ester Binns, that of Travis Cleveland, and that of Kimberly Silvers, we'll be taking them in that order. First, I just want to mention to the board that with Andy's retirement, it is now going to be a little bit of a different set-up as far as who comes to give us counsel. I believe it is going to be Chris, who is going to be our main representative. And for tonight, Jon also came, but your not planning to come. Mr. Kanter - I'll probably come from time to time,just to check in with how things are going. Ms. Balestra — And if there are issues that have specific building code elements to it, sprinkler variances and what not, we'll probably have Kristie Rice or someone from the Building and Zoning department sit in as well. Mr. Kanter - If you give us a couple of minutes maybe at the end of the meeting, we could explain a little further, the re-organization. Chairperson Sigel — OK, so for now, just Chris and Jon are sort of taking the place of both Planning Board representative and what Andy would do for us. OK, we are ready to begin. ADJOURNED APPEAL of Courtside Racquet and Fitness Club, Appellant, Thomas Murray, Agent, requesting a variance from the requirements of Chapter 221, Section 221-7 of the Code of the Town of Ithaca, to be permitted to replace an existing freestanding sign with a new 75 square foot + sign (50 square foot limit), at 380 Pine Tree Road, Town of Ithaca Tax Parcel No. 62-1-5, Community Commercial Zone. TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES Chairperson Sigel—Good evening, Mr. Murray. Mr. Murray - First of all, I want to apologize for missing the first time I was supposed to come up for that here, my mistake, and I apologize for wasting your time. Chairperson Sigel—Fortunately, I think you were last last time. Mr. Murray - So you got out early. Well, you're welcome. Chairperson Sigel — We didn't wait around too long for you. You made out well, now you're first. Could you just start with your name address for the record? Mr. Murray - Tom Murray, Owner, Courtside Racquet and Fitness club, business address 380 Pine Tree Rd, Ithaca NY. Chairperson Sigel—And give us just a quick overview of what you did. Mr. Murray - I replaced an existing sign with a backlit primary marquee, primary sign, along with that, over the course of the years, I've replaced the lower signs with a reader board. So, basically what was there is there, but I don't think what was there was ever formally approved. Chairperson Sigel—Was your sign before ever lit from the front, or was it internal? Mr. Murray - I had lights that would shine onto it... Chairperson Sigel—From below. Mr. Murray - Right, as opposed to the backlit sign. Chairperson Sigel — That actually would not have complied with our new outdoor lighting ordinance, would it? Ms. Balestra—That's a good question. Chairperson Sigel—But now the internal is allowed. Ms. Balestra—Yes, internal illumination. Chairperson Sigel—That works out well for you? Mr. Murray - What? Chairperson Sigel — The Town is in the process of enacting a new outdoor lighting ordinance that would prohibit lights shining upwards like you had. 2 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES Mr. Murray - Oh, I got lucky. Ahead of the curve. Mr. Matthews —How does that square with what he wants to do? Chairperson Sigel —Well, the sign that he has already put in complies with the proposed outdoor lighting law. Mr. Matthews —His request complies with the law? Mr. Ellsworth—Just the lighting. Chairperson Sigel—Just the lighting. And it's not a law yet, so it doesn't apply here, but as far as I can tell it should be in compliance. Mr. Matthews —Thank you. Chairperson Sigel — Does anyone have any questions or comments? I think as Tom indicated, it's basically, the sign that says Courtside Racquet and Fitness, is that the same size as you had? Mr. Murray - Yeah. Chairperson Sigel—Yeah, I didn't find any particular problem with it. Mr. Krantz—None at all. Chairperson Sigel—Pretty reasonable. OK, we do have a SEQR. Ms. Balestra—You do have a SEQR. Chairperson Sigel—You guys have any comments on this? Ms. Balestra—No, although the sign is larger than what is allowed in the district, it's not out of character with the surrounding community, and it's actually lower, much lower than is allowed as far as height. So, staff doesn't have any environmental concerns with it. Chairperson Sigel — OK, I will move to make... we have to have a public hearing, if anyone wishes to speak regarding this appeal. No, if not, we'll close the public hearing. Thank you, John. Chairperson Sigel opened and closed the public hearing at 7:07 p.m. Chairperson Sigel — And now I will move to make a negative determination of environmental significance for the reasons stated in the SEQR part II Environmental 3 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES Assessment Form prepared by Town staff in the appeal of Courtside Racquet and Fitness club. Second? Mr. Niefer—Second. Chairperson Sigel—All in favor? ZB RESOLUTION NO. 2005- 049 : ENVIRONMENTAL ASSESSMENT Courtside Racquet and Fitness Club, 380 Pine Tree Rd, Tax Parcel No. 62.- 1-5 MOTION made by Kirk Sigel, seconded by Jim Niefer. RESOLVED that this Board makes a negative determination of environmental significance for the reasons stated in the SEAR, part II, environmental assessment form prepared by town staff in the appeal of Courtside Racquet and Fitness Club. The vote on the MOTION resulted as follows: AYES: Sigel, Ellsworth, Krantz, Niefer, Matthews NAYS: None The MOTION was declared to be carried unanimously. Chairperson Sigel—And I will move to grant the appeal of Courtside Racquet and Fitness Club, requesting a variance from the requirements of Chapter 221, Section 221-7 of the Code of the Town of Ithaca, to be permitted to replace an existing free-standing sign with, is it a combination of three signs? Mr. Murray - Excuse me? Chairperson Sigel—Is it, what you are putting up now, it's... Mr. Murray - Yes, there's a reader board, Finger Lakes Physical Therapy, which is in my facility, and the Courtside Marquee. Chairperson Sigel—OK, and those total are a little bit less than 75. Mr. Murray - Yeah. Chairperson Sigel — OK... to be permitted to install a combination of three signs, as indicated on the applicant's plan, which total no greater than 75 square feet, at 380 Pine 4 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES Tree Road, Town of Ithaca Tax Parcel No. 62-1-5. With the finding that the requirements for an area variance have been satisfied. Mr. Dubow - It may be worth noting for the record, that this matter has gone before the Planning Board and the Planning Board, in their capacity, approved it, also with the condition that the size not exceed that same 75 square feet. Chairperson Sigel—OK, thank you. Second? Mr. Niefer—Second. Chairperson Sigel—All in favor? ZB RESOLUTION NO. 2005- 050: Courtside Racquet and Fitness Club, 380 Pine Tree Rd, Tax Parcel No. 62.-1-5 MOTION made by Kirk Sigel, seconded by Jim Niefer. RESOLVED that this Board grants the appeal of Courtside Racquet and Fitness Club, Appellant, Thomas Murray, Agent, requesting a variance from the requirements of Chapter 221, Section 221-7 of the Code of the Town of Ithaca, to be permitted to install a combination of three signs, as indicated on the applicant's plan, which total no greater than 75 square feet, at 380 Pine Tree Road, Town of Ithaca Tax Parcel No. 62-1-5, Community Commercial Zone. FINDINGS: 1. The requirements for an area variance have been satisfied. 2. This matter has been approved by the Planning Board also with the condition that the total size not exceed 75 square feet. CONDITIONS: None The vote on the MOTION resulted as follows: AYES: Sigel, Ellsworth, Krantz, Niefer, Matthews NAYS: NONE The MOTION was declared to be carried unanimously. Chairperson Sigel—OK, all set. Mr. Murray - Thank you. Chairperson Sigel—Yup. 5 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES APPEAL of Ester L. Binns, Owner/Appellant, Darcy Binns, Agent, requesting a variance from the requirements of Chapter 270, Section 270-223 of the Code of the Town of Ithaca, to be permitted to maintain a fence with a height of approximately 9' 4" (six foot maximum height allowed),located at 320 Forest Home Drive, Town of Ithaca Tax Parcel No. 66-3-8, Medium Density Residential Zone. A time-limited variance was previously granted on December 13, 2000, which is set to expire on December 13, 2005. Chairperson Sigel—If you could begin with your name and address. Ms. Binns - Darcy Binns, 320 Forest Home Drive. Chairperson Sigel — And provide us with a brief overview of your situation and your reasons for requesting the variance. Ms. Binns - When we purchased the house, the fence was standing. It's a beautiful architectural element that is part of the property. And we're just requesting to be allowed to continue to have the fence as it stands. Chairperson Sigel—How long ago did you buy the house? Ms. Binns - Two years. Chairperson Sigel — OK. And I assume you were informed at purchase of the variance situation? Ms. Binns - Yes, at purchase. Chairperson Sigel — OK, that's good. Have you spoken with your neighbor on that side about how they feel about the fence and if they have any objections to its continued existence? Ms. Binns - I have not spoken with them. I know they purchased the house while I was there. I only interacted with them once, and they are very friendly but they said they are very private and keep to themselves, so I just respected that and knew that they would get notice about the hearing tonight. Chairperson Sigel—Any questions? This was... Mr. Matthews —Did I hear Miss Binns say the fence has been there for a while? Ms. Binns - The fence has been there for a decade if I understand the record correctly. The previous owner, if I understand correctly, he actually built the fence and put it up. Chairperson Sigel — The fence must have been built a little over ten years ago because just about ten years ago, a variance was granted for it to stay there. It was, the person 6 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES who built it, wasn't aware of the height restriction. Then they were granted a five year variance, which expired in 2000, and then the board again extended it for five years. At that time, I believe the rationale was largely for screening. Mr. Matthews —Screening from? Chairperson Sigel—From the neighbor. The neighbor's house has, in the past, been let's say more atypical for the neighborhood than it is now. Even though now some might say it was still a bit atypical. Mr. Matthews —The fence was is more atypical? Chairperson Sigel—No, the house next door Mr. Matthews —is more atypical... Chairperson Sigel - more atypical for what's in that neighborhood as far as aesthetics. Mr. Matthews —Is that the little blue one? Atypical? Chairperson Sigel—Yeah. Mr. Matthews —Not the neighbor? Chairperson Sigel—No, the blue one is the neighbor. Mr. Matthews —OK, the blue one is the neighbor and the one on the right is Miss Binns. Chairperson Sigel—Yes. So, I wasn't on the board in `95, but I believe that the, from the notes that I read, it appears that the person who actually built it, their rational; was largely for screening from the neighbor. And then they also built a row of trees that have been growing, but apparently with only modest progress. Mr. Matthews — So that brings the question from me again, you've already asked the question, but I'm not comfortable with the answer, regarding the neighbor. What does the neighbor think of that fence today in that blue house? Ms. Binns - It's not the same neighbor. Oh, so they moved in when the fence was up. And so I'm assuming since they moved in and rented the house when the fence was up and then they went on to purchase the house, that they don't have significant objection to the fence. Mr. Matthews —But you don't know that. You're assuming. Ms. Binns - I am assuming, but I'm also assuming that they are not here tonight. 7 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES Chairperson Sigel—They were notified, I'm sure. Ms. Balestra — Oh yes. That little blue house has been rented to students and various people for years, so there is a high turnover rate of people in that house itself. The original owners of the house that she now lives in wanted to screen themselves from certain activities that were happening in the blue house at the time. Those are in the minutes. Some of them were illegal. So they were concerned for safety and other reasons. Both houses have changed ownership in the last ten years. So with the new owners, at least in front of us, she is wanting to maintain the fence rather than take it down or make it compliant to the law, which is six feet. Mr. Matthews —OK. Ms. Balestra—The original intent of putting the fence up has changed. Mr. Matthews — I understand. I'm clear. Are we opening or preventing someone in the future who buys the blue house if we approve this appeal, are we preventing those future owners from ever getting rid of that fence. Chairperson Sigel—If we were to grant a variance that is permanent, then yeah. Mr. Matthews —OK, you hit it right on the head, if we grant a variance that is permanent, we are hindering the future owner of the blue house from getting rid of something they find objectionable. Ms. Balestra —Well, the fence is not on their property, so they couldn't legally just take down the fence anyway. Mr. Matthews —Then why do we have an ordinance that says you can only go six feet? Ms. Balestra — That is for the owners of the property next to the blue house who put up the fence. But it is on their property. Chairperson Sigel — But you're right, it's to protect, obviously, the aesthetic view from your neighbor, I mean that's the reason. I mean if you go back, I think it's a fifteen foot setback, you can put up as high a fence as you want. So if you are set back from your property line, you can put up a much higher fence. So, you're right, the rule, as you get closer to the property line, the rule is to protect the neighbors from an unreasonably high fence. Mr. Matthews —And this fence is within 15 feet of the property line? Chairperson Sigel—Oh, yes. Ms. Balestra—It's essentially right on the property line. 8 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES Mr. Matthews — So my statement is that if we make this a permanent variance, we are hindering the future owner of the blue house who wants to kick out all the students and the beer parties and wants to live a normal life in Forest Home. He doesn't want that fence there now. Ms. Binns - Actually there is a permanent owner there now, and with all due respect, I thought the law, they were informed of this, there was public notice to them. I believe they, they own the house, I have a perfectly friendly relationship with them, but the first thing they let me know is that they are private in the neighborhood, they keep to themselves. They might actually like having the privacy of the fence. But also, if variances are granted on who may or may not move in and like or not like something, it seems like things would constantly be in flux. Chairperson Sigel—Yeah, I think that given that the neighbor was provided notice, we do need to assume that they don't object because they could have either appeared here tonight or they could have sent a letter if they were unable to appear. Ms. Binns - And there is a big orange sign also on my front lawn. Mr. Niefer—Was the letter sent to the absentee owner at the absentee owner's address? Chairperson Sigel—No, the blue house is now owned, owner-occupied. Mr. Niefer—Oh, OK. Chairperson Sigel — It previously was a landlord and renter, but now, apparently it is owner-occupied. Mr. Matthews — We absolutely know that the person who owns the house lives there now? Chairperson Sigel—Yeas, well, the applicant is stating that, I don't know that personally. Mr. Matthews —OK, so then we don't know, we're assuming. Chairperson Sigel—Well, notice was certainly sent. Mr. Dubow - Let me just point out the board, this may be a good time for everybody to take a look. I don't know if everybody has the five criteria that the board reviews when it makes an area variance. And that's really the issues, those are the issues that the board has to review. One of those is whether an undesirable change would be produced in the character of the neighborhood, or detriment to nearby properties will be created. And that is one of the criteria. And I think you should probably review all of them just to make sure that they bear on the decision that you are going to make. And what a neighbor might or might not think might be relevant if that neighbor were here, but it is a little difficult to surmise what that neighbor would say if he or she was here. 9 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES Mr. Matthews —One way or the other. Mr. Dubow - Right, but you've got to weigh that. Granting an area variance is really a balance procedure between the benefit to the applicant and the detriment to the neighbors or the neighborhood or the community. And it's simply a process of weighing those two things and making a determination based upon those criteria. But you could take into consideration sort of independently of what the neighbor says or doesn't say, whether you believe it would produce an undesirable change in the character of the neighborhood. If you don't believe that to be the case, and the neighbor isn't here articulating any particular position, then you can or cannot take that into consideration. And I think historically, as the record indicates, this has been done in five year increments, not necessarily based upon the issue that you are raising, although it may be a valid issue, but based more on the fact that there was some concern originally, there was some issue about the trees going up and then maybe the fence not being necessary. And I think over that ten year period of time, the issues have changed a bit. The five-year increments, you are entitled to do that, but I don't know that this board wants to be in a regular process of reviewing variances every five years to make a determination. It's not significantly different than somebody asking to put a garage five or ten feet closer to the side yard boundary than permitted. The next neighbor might oppose that, three years later when they buy, but if you grant that variance, you obviously grant that variance as a permanent variance because you wouldn't expect somebody to move their garage based upon a new neighbor not liking that idea. The fence is not quite as costly as a garage, but I think the principle remains the same. The five year increments wasn't done because there was a concern about whether a future neighbor might mind is done for different reasons that were very specific to that fence going up at that time, the purpose for which it was going up and the expectation the trees might grow and might serve as an alternate way to protect the view between the two properties. Chairperson Sigel—Thank you, David, any other comments? Mr. Krantz — Obviously, it would seem absurd to tear down a fence in as much as it's been there for ten years at least, and there haven't been any complaints, and there was a five-year variance. It seems like the only new question is do we grant a permanent variance or do we want to go for another five years. And I would think since there have been no complaints, since it apparently adds to the attractiveness to the area and the house, and that there have been no problems in the last five years, maybe it's time to grant a permanent variance. Chairperson Sigel — Well, I sort of take a little bit... well, I'm not exactly sure what Dick's view is, but I take a view that is maybe in between the two of you, and that... Mr. Krantz—Seven and a half years? Chairperson Sigel—No, but the fence is a nice fence, I agree with that, and it's true that it hasn't appeared to cause anyone any problems, but on the other hand I do believe that the 10 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES height is an issue. So, what I was going to propose, and I did a little bit of searching on the internet and found, I didn't find any estimates for wooden fences for their longevity above twenty years. The expected life of a wooden fence, apparently, is twenty years at the most depending on the wood type and depending on how you treat it and maintain it. So, I was going to suggest a final variance, although, of course, it could always be extended again, of an additional ten years, which would give them the full expected life of the fence, but then at that point, when it was approximately the time for the fence to be replaced, that they would have to replace it with a fence that was in compliance. Mr. Matthews —I like that compromise. Chairperson Sigel — So, I don't, as Ron said, I feel it would be wasteful to have to tear down a very nice fence, but on the other hand, when it sort of falls down, I think they should put up something conforming, or come back again and ask for a variance. And, so I would be willing to vote for an additional ten years, which would give them, from what I could find, the full life expectancy. Mr. Matthews —Just a question, a nuisance question more than anything—who keeps the calendar? In nine years and 364 days, who goes bing-bing? Mr. Kanter - We basically have a system between the files and the computer calendar, although I can imagine in ten years the computer system will be different, probably easier to track. So we do have tracking systems. Dani, actually who has been here for 15 years, 17 years, does a really good job of keeping track of those files, and I imagine she will be here for at least another ten years. So, administratively, it's really not a difficult problem. Chairperson Sigel - And ultimately, I think it's probably the responsibility of the applicant to take care of that. I mean, obviously, it's nice if the town remembers. So, if there are no other comments or questions. Mr. Niefer — Well, the only question I had was what the applicant thinks of your suggestion? Chairperson Sigel—Well, we could ask her. Mr. Niefer—I think she should have the chance to offer a rebuttal. Chairperson Sigel—Would you like to comment on a proposal for a ten-year variance? Ms. Binns - I'm not sure what my comment is. I guess, who knows where things will stand in ten years. I guess, it certainly seems like a middle ground, but at the same time, I am a little baffled. The fence has stood for a decade, it looks like, according the legal criteria to grant a variance, it certainly meets that criteria, the five points you were talking about, I have a copy of that. So, I feel like this fence has a bad history behind it, and that's unfortunate. I think it's in character with the neighborhood. The plantations has the same fence. This was I think, built as a replica of that. And it seems like, if variances 11 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES aren't usually granted with these sort of constraints, I'm not sure... I mean if they are, I understand, but I'm not sure if I'm not... Chairperson Sigel —If the original owner who built this fence had come in and requested a variance for over nine foot fence, I think there is a very good chance it would have been turned down. I would not have voted for that. So, personally, I feel like, even though the direct neighbor may not object, even though all your neighbors may not object, I think it is significantly higher than what is allowed, it does create an overall detriment. If we granted this at all regularly, it would be a problem I think. Variances for fences this high. So, for me, personally, I feel like the reasonable compromise is to let the fence exist for its reasonable lifetime, but then it needs to go away. I don't feel like it's something that should be there forever, a fence that high. And it's only, in my mind, because it was an honest mistake by the builder that it's been allowed to stay. And if neighbors had objected, I think there's a very good chance it would have come down right after it was built. Mr. Dubow- I don't know if there is anybody, I assume not. Chairperson Sigel — Anyone else have any other comments before we open the public hearing? Mr. Niefer— Other than having the public hearing, open to the public, let's see if there's anyone from the public that has some input. Chairperson Sigel—Yeah, at this point, we'll open the public hearing. Does anyone here wish to speak about this appeal? OK, and if not, we'll close the public hearing. Any further comments, any...? Chairperson Sigel opened and closed the public hearing at 7:27 p.m. Mr. Matthews — You made a point, and I'll ask a rhetorical question. If an applicant came today and lived down the road from this house, and said I want to put up a nine foot fence because I can't stand the sight of the water going in back of my yard or whatever the case may be, would this board grant the variance? Mr. Krantz—Well, it depends. Chairperson Sigel — I can't say for sure. I know, personally, I'd be very skeptical of something that high. Mr. Matthews — I don't expect a clearly defined answer, but I suspect that the board would resist. Chairperson Sigel — My guess is that it would have to be very good reasons. To my knowledge in the last seven or eight years, we have not granted anything that high. 12 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES Mr. Ellsworth—What about that one around the garden, what was the height of that? Mr. Matthews —Remember the market garden? Chairperson Sigel—That was eight foot and that was a wire mesh fence, that was not... Mr. Matthews —It wasn't a barrier fence. Chairperson Sigel—Yeah, it wasn't a barrier fence, and it was setback a little bit from the edge of the yard. There have only been, to my recollection, a few others in eight years. Ms. Binns - But some of the older fences, in Forest Home, probably pre-date that, and I think there are fences that are that tall, aren't there? Ms. Balestra—Not any that have come to the board legally. Chairperson Sigel —I can't... I drive through Forest Home everyday, practically, and it's possible there are some that I just don't notice, but I can't think of any that are particularly... Mr. Ellsworth —Well, there's one where a person who's putting an addition on has put a fence up. I don't remember the height, in Forest Home. Ms. Binns - And the Plantation fence that this fence is modeled after, that runs along the back yard of the houses on McIntyre Place. Chairperson Sigel—Yeah, I don't know the status of that. Ms. Balestra — We don't know the status either and we suspect... we don't know, it's possible it could be an illegal fence. Chairperson Sigel—Does Cornell own the ground that any of those houses are on there? Ms. Balestra—In Forest Home? Chairperson Sigel—Yeah. Mr. Kanter-Not that I'm aware of. Ms. Balestra—No, I don't think so. Chairperson Sigel — I'm not exactly sure how close that is to the property line, Cornell's property line, that fence. Because, like I said, if you are within the setback for a house, which I think is 15 feet in that district, then you would be allowed to put up a fence, I think actually as high as a house is allowed. Or, no as a structure. 13 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES Mr. Kanter - As an accessory structure. Chairperson Sigel—Which would be 30 feet. Mr. Kanter - 30 feet, yeah. Chairperson Sigel—No one's ever tried that. Ms. Balestra—Yeah, we've never seen that. Ms. Binns - But it's just that this doesn't meet the setback requirement, and that's what changes the whole nature of it. Chairperson Sigel — Right, right. And again, this doesn't mean that you can't get a variance again in ten years. Personally, I'm voting for it with the expectation that you won't. But you could have five different people here in ten years. Mr. Ellsworth—More than likely. Chairperson Sigel —And the reasons for granting it have changed in the past, so it's hard to know what will happen. Any other questions or comments? I was thinking, I might re-make the motion of five years ago with just some changes. Mr. Dubow - Well, you've got to do the SEQR first, and there's a long form there, as I understand it, because this is an historic district, so as a result it requires a long assessment form that you've got to fill out but you will have to make your SEQR determination. Chairperson Sigel — OK, I will move to make a negative determination of environmental significance with regard to the appeal of Ester Binns, for the reasons stated in the long Environmental Assessment Form prepared by Town staff. I think that's all I need to say. Second? Mr. Matthews —Second. Chairperson Sigel—All in favor? ZB RESOLUTION NO. 2005- 051 : ENVIRONMENTAL ASSESSMENT : Ester L. Binns, 320 Forest Home Dr, Tax Parcel No. 66.-3-8 MOTION made by Kirk Sigel, seconded by Dick Matthews. RESOLVED that this Board makes a negative determination of environmental significance in the appeal of Ester Binns, for the reasons stated in the Long Environmental Assessment form prepared by Town staff. 14 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES The vote on the MOTION resulted as follows: AYES: Sigel, Ellsworth, Krantz, Niefer, Matthews NAYS: None The MOTION was declared to be carried unanimously. Chairperson Sigel — And I'm not sure this motion from 2000 is exactly what I want to say. [inaudible discussion with Mr. Dubow]. I will move to grant the appeal of Ester Binns, requesting a variance from the requirements of chapter 270, section 270-223, of the Town Code, to be permitted to maintain a fence with a height not to exceed 9' 4", located at 320 Forest Home Drive, Town of Ithaca Tax Parcel No. 66-3-8. With the finding that the requirements for an area variance have been satisfied, and with the condition that this variance will expire in ten years with an additional finding that the life expectancy of the fence is for another ten years from now, and that at that time, the fence will be removed, or otherwise brought into compliance with the zoning ordinance. Which is more or less what the last one said. Mr. Dubow - I don't know if you want to acknowledge unless the applicant receives a further variance at that time. Comes before the board. Chairperson Sigel — Yeah, I don't think it's really necessary, but we can put it in. "Unless the applicant comes before the Board again to ask for a further time extension." Ms. Binns - There's just another thing I'm not quite clear on. In the other one, with courtside, you asked for the Town's recommendation. Does that make a difference? Chairperson Sigel—not technically I think, I just forgot this time actually. Sorry, Chris. Mr. Kanter- Were you referring to the Planning Board recommendation? That's because sign variances are automatically referred to the Planning Board as the sign review board, other variances are not automatically referred. Chairperson Sigel—That was an unusual case in that respect, yeah. Ms. Binns - OK.. Chairperson Sigel—OK, second? Mr. Ellsworth—I'll second it. Chairperson Sigel—All in favor? 15 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES ZB RESOLUTION NO. 2005- 052: Ester L. Binns, 320 Forest Home Dr, Tax Parcel No. 66.-3-8 MOTION made by Kirk Sigel, seconded by Harry Ellsworth. RESOLVED that this Board grants the appeal of Ester Binns, requesting a variance from the requirements of Chapter 270, Section 270-223 of the Code of the Town of Ithaca, to be permitted to maintain a fence with a height not to exceed 9' 4", located at 320 Forest Home Drive, Town of Ithaca Tax Parcel No. 66-3-8. FINDINGS: 1. The requirements for an area variance have been satisfied 2. The life expectancy of the fence is for another ten years from now, and at that time the fence will be removed or brought into compliance with the Zoning Ordinance, unless the applicant comes before the board again to ask for a further time extension. CONDITIONS: 1. This variance will expire in ten years. The vote on the MOTION resulted as follows: AYES: Sigel, Ellsworth, Krantz, Niefer, Matthews NAYS: NONE The MOTION was declared to be carried unanimously. Mr. Krantz —I'd like to make one quick comment here. You asked, Dick if people came before us now and wanted to put up a fence, would we allow it. And in the meeting that they came before the Zoning Board five years ago, I'll just read from that, "shortly after the Worsfolds moved in, the neighbors were arrested on possession of drug charges. They did have drugs in the house. The fence provided the Worsfolds a way to separate themselves from that. They did not want to get involved." Well, if that happened today, I would hope that this board would allow the fence again. How can we turn that down...? Chairperson Sigel —Well, but even in that case, I don't know that I would be in favor of such a high fence. Mr. Matthews —I'd be in favor of jailing the drug... Chairperson Sigel—So, you're all set. Sorry. Thank you. Mr. Dubow - For ten years. 16 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES Chairperson Sigel—For ten years. APPEAL of Travis Cleveland, Appellant, requesting variances from the requirements of Chapter 270, Section 270-84 of the Code of the Town of Ithaca, to create, by subdivision, Lots 2 and 3, in the "Proposed 3 Lot Subdivision of Tax Parcel 39-1-9, Lands of Travis L. and Kathy A. Cleveland", located at 1032 1/2 Danby Road, Town of Ithaca Tax Parcel No. 39-1-9, High Density Residential Zone. Lot 2 requires two variances: one for insufficient lot width at the street line (15' provided, 60' required) and another for insufficient lot width at the front yard setback line (15' provided, 75' required). Lot 3 also requires two variances: one for insufficient lot width at the street line (25' provided, 60' required) and another for insufficient lot width at the front yard setback line (25' provided, 75' required). The Town of Ithaca Planning Board granted Preliminary and Final Subdivision Approval for the above-referenced subdivision, conditioned upon obtaining the necessary variances from the Zoning Board of Appeals prior to signing of the plat by the Planning Board Chair. Chairperson Sigel—Good evening. Mr. Cleveland- Good evening. Chairperson Sigel—Could you begin with your name and address? Mr. Cleveland- Is your last name Sigel? Chairperson Sigel—Yes. Mr. Cleveland- I could quite read it. My name is Travis Cleveland, and I am proposing a three-lot subdivision. The plan is my father will own lot two if granted, and we plan to use the two fifteen foot strips as a shared drive with lot three and create a turnaround for access in case of fire or any other safety concern. Chairperson Sigel—So is lot three then going to cease to use the current driveway. Mr. Cleveland- Yes. Chairperson Sigel—So then will lot one also use the same common driveway? Mr. Cleveland-Possibly, yes. There really are no plans for lot 1 at this time. Mr. Niefer—Lot 2 uses the shared driveway then too, is that correct? Mr. Cleveland - Yes, lot 2 and 3 would use the shared driveway, and one anything happens, I'll create a U-turn there I guess you would call it. 17 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES Chairperson Sigel—OK. OK, this has been before the Planning Board and did apparently receive unanimous approval. Ms. Balestra—With conditions. Chairperson Sigel—With conditions, which I actually did not read. Mr. Ellsworth —Has this shared driveway got an offset there halfway back? What's that jog? Mr. Cleveland- What's that? Mr. Ellsworth—Does this shared driveway does an offset? Chairperson Sigel—Well, it's going to have to turn. Mr. Cleveland- It won't probably be 30 feet wide of a driveway. Mr. Ellsworth—I don't know how fire trucks are going to do that, it's not going to work. Mr. Cleveland- Right, it should be fairly straight I assume. It may be offset a little, yes. Mr. Matthews — What you're saying, Harry, is that the offset will restrict fire safety equipment? Mr. Ellsworth—Yeah, they'll have to cut an angle across there. Mr. Cleveland- Well, I think 12 feet should be wide enough for... Chairperson Sigel — No, Harry are you thinking the driveway has to go in this narrow strip here? They have both of these strips for the driveway, for the shared driveway. And this opens up here, so they can make that a very gradual... Mr. Ellsworth—So if a fire truck has to get to lot 2, they have to make this turn here? Chairperson Sigel —No, no, the shared driveway could just make a gradual turn like this, it doesn't have to stay within the lot 2 piece, it can go over the portion solely onto lot 3 if necessary to make a more gradual turn. Mr. Matthews —So, we're not approving that sharp driveway, is that what you're saying? Chairperson Sigel — No, they haven't indicated where the driveway... I assume, you're not planning on keeping the driveway right on the boundary between 2 and 3 are you? Mr. Cleveland-No, it's just going to me... 18 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES Chairperson Sigel —Once you get behind that lot that is 1034, you can basically just start a gradual curve. Mr. Cleveland- Yeah, it will be fairly straight. Chairperson Sigel—Yeah. Mr. Niefer—On occasion, hasn't the Town Engineer, hasn't it been a requirement that the Town Engineer give express or tacit approval to a roadway to access a rear lot so the concerns that have been expressed here, as regards fire engine access is met? Chairperson Sigel—Yeah, I think we have mentioned that in the past. Mr. Niefer—This does raise some questions, and as far as they are going to sell lot 2 off to someone else, they are going to have to come up with some kind of easements and deeds and so on to permit them to use this shared driveway and cut across the corner of lot 3 to get to lot 2. So, there are quite a few little twists and turns if someone is going to buy this lot 2. Mr. Cleveland - Well, it's my father. I'm mainly just subdividing it so he can build a home there. To satisfy any fire related issues, it doesn't show here on the map, but Vista Lane comes all the way down, and there is a little area in between the end of the turn around of Vista Lane and there is a fire hydrant right at the end of that lane if need be. Mr. Matthews — Wouldn't we have to specify... excuse me for being unclear tonight, being a little foggy, I don't know... don't we have to specify that in some approval that that easement will be permanent? Mr. Dubow - Well, you could, and I don't know if the Planning Board considered this, I wasn't at that meeting, but you could include, as a condition of this approval, that there be some sort of joint driveway, use agreement, easement agreement, subject to the approval of the Town's attorney, just so that there is some document that memorializes the arrangement. And, I think for the situation, and I know that isn't the original intent, but if one of these parcels was to pass into a third party, you would want to ensure that that driveway as you perceive it, they would be assured of having access, and you would be assured for safety reasons, that there would be some understanding as to how Emergency vehicles could access both properties. So you could make it subject... granting an area variance, you always have the right to attach conditions, and one of your conditions could be something to that effect. Mr. Cleveland - I assume of there was ever a transfer, that would raise a flag anyhow, if I'm correct. Mr. Dubow - I think there are two issues... [tape is flipped] I think for the Town's concern, they obviously have to look at issues such as the health and welfare and safety of the community, and I think their entitled to also be assured that somehow access to 19 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES both parcels, since you're going to have a shared driveway, is guaranteed in some fashion, so it would just be, again, it wouldn't be a very complicated agreement, but it would be one that would provide location of some sort, and assurance that both parties could use that access for emergency or otherwise. Mr. Cleveland- OK. Mr. Kanter - At the planning board, I'm trying to remember, and I'm not exactly 100 percent sure, but I don't recall that the issue of the Common driveway didn't come up, which is why the easement issue didn't come up. Mr. Cleveland - Actually, this drawing was with help of the Planning Board. We kind of worked it out together. Mr. Kanter - Yes, but I think what's shown is the current access to lot three, which I don't know that that was explicitly stated as being removed and a new shared driveway being built. Mr. Cleveland-No, the access to lot three isn't going to be removed. Chairperson Sigel — You mean the current driveway into lot three, you're going to keep that? Mr. Kanter - So, we're talking about shared access between lots 1 and 2? Mr. Cleveland-No, lots 2 and 3. Mr. Kanter - Well, let's get clear now, lots 2 and 3, 3 has the existing driveway. Mr. Cleveland- Three has the existing driveway. Mr. Kanter - Is that going to be removed? Mr. Cleveland-No. Mr. Dubow - So will have two means of access, is that what you're suggesting? Mr. Cleveland - Yes, yes, three will have actually two means of access. It will be pretty much a U-turn there along the boundary is what I'm planning, and then the common driveway will... it could actually be common to all three if need be. Mr. Kanter - Again, that was not all explicitly discussed at the Planning Board meeting, otherwise there would have been a very clear condition for that kind of an easement to be in place, so I think it would be appropriate for this board to do that. Mr. Matthews —did you say appropriate or inappropriate? 20 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES Mr. Kanter - Appropriate. I think it would probably be the most desirable design to have one common driveway serving all three lots, to tell you the truth from the road safety perspective. Mr. Cleveland- And I don't have a problem with that being a condition. Chairperson Sigel — Well the current access to lot three is right in between two driveways, right? The driveway to either side of the current driveway, for the two houses to the either side. I mean, each house has its dedicated driveway right now? Mr. Cleveland- On the side? Chairperson Sigel—Yeah, to either side. 1032 and 1034. Mr. Cleveland- Yeah, they have their own. Chairperson Sigel — And then there's the current one for 1032.5. So there's three right there now. So, I don't personally have a problem with leaving the current access to lot three as is, even with the addition of a shared driveway, unless you feel that there's a safety concern or an access concern. Mr. Kanter - I don't think so, I don't think it's a current problem. Chairperson Sigel — I mean if it was closer to the intersection, or something like that, maybe it would be worse, but it's actually further. Mr. Kanter - Chris had a comment about... Ms. Balestra — There's a pretty large stream that cuts through the property, so if you're going to propose to loop the existing driveway with the shared driveway, you would be crossing that stream. Mr. Cleveland- Yes, that has to be addressed. I still have to talk to Dan Walker about it. Ms. Balestra—OK, that was one of the conditions of approval from the Planning Board is stormwater control plans for remaining building permits. Mr. Cleveland - And that's a whole different thing, and I don't know if we want to get into it, but it's road runoff coming down through there, and I believe I saw in the Town letter they're trying to control that runoff because of all the pollution and so forth going on, so I still have to get with him. There's really no plan yet, but I do plan on working on it. Ms. Balestra—OK. 21 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES Mr. Dubow - There is by the way, a letter from the County department of planning in response to the usual 239 notification to them, that does indicate that they don't make a determination that it will have any negative intercommunity or county-wide impact, but they do have a comment with respect to this that you probably should be aware of. Mr. Cleveland- Yes, and I believe that comment was from the first application. Ms. Balestra—Right. Mr. Cleveland- OK. Mr. Matthews —My question may have to do with someone else, and I apologize ahead of time, what is the historical reasoning behind having the 60-foot frontage? What I'm concerned about that property owner 3 has, and I'd like to know what the rationale was to require 60-foot frontage. Ms. Balestra—And I cannot answer that. Mr. Kanter - The only thing I can say is that generally in terms of forming patterns of development over the Town, the Town set minimum lot standards, and I guess 60 foot frontage is probably the smallest of them, the narrowest lot. Typically, although not common, these kind of narrower, what you might call flag-lots, with the narrower strips are becoming more utilized today because of the desire to preserve open space frontage on roads. It's a typically a good way to preserve the character of the openness of roadways, because traditionally in the old days, lots would develop as frontage lots, and eventually pretty much cover the entire frontage of the whole road, and that tended, especially in the more rural areas, to detract from the open character of the town. So, sometimes these flag lots —and I guess I'm not directly answering your question, I'm sort of flipping it around a little bit—the flag-lot approach allows a little bit more of that road open character to be maintained, so in some ways, I guess it's been seen as a desirable way to approach it as long as you have adequate access, adequate emergency vehicle access. So, I guess originally, traditionally, the original 60 foot minimum width was basically to ensure adequate frontage for emergency access vehicles and separation of buildings from one another. That's the traditional zoning approach for lot widths. Mr. Matthews —OK, thank you. Mr. Kanter - Why it was 60 feet as opposed to 58 or you know, 40, it was just a determination made somewhere along the lines. Mr. Matthews — So you're finding in your work that these flag lots are becoming more common and more desirable. Mr. Kanter - They are becoming more common and in some cases, desirable. And they do also allow for the common driveways, which is a desirable feature on heavily traveled 22 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES roads, if you can consolidate the number of curb cuts on busy roads, then it's generally send a safer way to do it. Mr. Matthews —OK, thank you. Chairperson Sigel—And we have lots like this in the town, which are considerably larger than the minimum size required for the zone, they're deep lots, and I just think as values go up,people want to try to realize some of the value of their large lots. Mr. Matthews —With a narrow... Chairperson Sigel —And they don't have enough road frontage to split it in half and still meet the requirements, so they try and use the back part. Mr. Matthews —And that's basically what he's asking tonight, isn't that correct? We're not talking about the sliver driveway, we're talking about the variance for the road... Chairperson Sigel—For the creation of the lots... Mr. Matthews — So, all the rest of it, what we're discussing has nothing to do with what he's asking. Chairperson Sigel — Well, we can condition, and it would be reasonable to condition the approval on the shared driveway agreements and such. Mr. Matthews — Sure. You understand where we're coming from? Where I'm coming from? Chairperson Sigel—OK, we'll open the public hearing at this point. Does anyone wish to speak regarding this appeal? If not, we'll close the public hearing. Chairperson Sigel opened and closed the public hearing at 7:56 p.m. Chairperson Sigel — Any other questions or comments? OK, I will move to make a negative determination of environmental significance... Ms. Balestra—Actually... Mr. Dubow - Yeah, this is one where, although the board has been provided with a SEQR form, the SEQR regulations provide that in a one, two or three family residential situation, area variances are not required to be SEQR reviewed, so I don't think it's absolutely required. Ms. Balestra—We just add the SEQR sometimes just in case. 23 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES Chairperson Sigel — OK, so I'll move onto the main motion. I will move to grant the appeal of Travis Cleveland, requesting variances from the requirements of Chapter 270, Section 270-84 of the Town Code, to create, by subdivision, two lots in a Proposed 3 Lot Subdivision located at Tax Parcel 39-1-9, where lot 2 is to be granted a variance for insufficient lot width at the street line to have a width no less than 14.5 feet, where 60 feet is required and a variance for insufficient front yard setback of 14.5 feet where 75 feet is required. In addition, lot 3 is granted a variance for insufficient lot width at the street line for 24.5 feet where 60 feet is required and for insufficient width at the front yard setback of 24.5 feet where 75 feet is required. With the finding that the requirements for an area variance have been satisfied by the applicant, and with the conditions stated in the Planning Board resolution number 2005-089, except for condition A. And with the further condition that the applicant submit to the Town, for the Town attorney's approval, an easement agreement for a shared driveway between lots 2 and 3. Mr. Dubow - Do you want that to include lot 1 as well? It was mentioned that that might also serve access to lot 1, or you're not asking for that? Chairperson Sigel—It sounds like you're not planning to develop lot one? Mr. Cleveland-Not at this time. Chairperson Sigel— ...at this time. Mr. Kanter- It might make sense to grant,permissively, the easement to include lot 1, but not required to happen that way. Chairperson Sigel—And included in that easement agreement, also access for lot 1 to the shared driveway. Mr. Niefer — Also, do we want to say something about the driveway being acceptable to the Town Engineer? For safety vehicles. Mr. Dubow - What you may want to do is make the shared driveway agreement simply itself subject to the approval both of the Town attorney and the Town Engineer, and that way they can coordinate the process both as to location and design and the legal terms that would govern its use. Chairperson Sigel—OK, sounds good. Second? Mr. Niefer—Second. Chairperson Sigel—OK, all in favor? ZB RESOLUTION NO. 2005- 053: Travis Cleveland, 1032% Danbv Rd, 39.-1-9 MOTION made by Kirk Sigel, seconded by Jim Niefer. 24 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES RESOLVED that this Board grants the appeal of Travis Cleveland, Appellant, requesting variances from the requirements of Chapter 270, Section 270-84 of the Code of the Town of Ithaca, to create, by subdivision, two lots in a Proposed 3 Lot Subdivision located at Tax Parcel 39-1-9, where lot 2 is to be granted a variance for insufficient lot width at the street line to have a width no less than 14.5 feet, where 60 feet is required and a variance for insufficient front yard setback of 14.5 feet where 75 feet is required. In addition, lot 3 is granted a variance for insufficient lot width at the street line for 24.5 feet where 60 feet is required and for insufficient width at the front yard setback of 24.5 feet where 75 feet is required. FINDINGS: The requirements for an area variance have been satisfied by the applicant. CONDITIONS- 1. ONDITIONS:1. Submission for signing by the Chairman of the Planning Board of an original or mylar copy of the plat and three dark-lined prints, prior to filing with the Tompkins County Clerk's Office, and submission of a receipt of filing to the Town of Ithaca Planning Department, and 2. Submission of a storm water control plan for approval by the Town Engineer before issuance of any building permit, and 3. The foundation at the northeast corner of Lot 1 be moved southerly to be entirely on Lot 1 or be removed so that in any event it no longer encroaches on Lot 2, prior to the issuance of any building permits for structures on Lot 2. 4. The applicant shall submit to the Town, for the approval of the Town Attorney and the Town Engineer, an easement agreement for a shared driveway between lots 2 and 3, and included in that easement agreement, also access for lot 1 to the shared driveway. The vote on the MOTION resulted as follows: AYES: Sigel, Ellsworth, Krantz, Niefer, Matthews NAYS: NONE The MOTION was declared to be carried unanimously. Chairperson Sigel—OK, thank you. Mr. Cleveland- Thank you. 25 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES APPEAL of Kimberly Silvers, M.D., PhD., Appellant, requesting special approval pursuant to Chapter 270, Section 270-57 of the Code of the Town of Ithaca to allow the conversion of the property located at 919 Elmira Road (formerly Turback's Restaurant) to an owner-occupied single-family home with offices for a dermatology practice as a home occupation, and variances from the requirements of Chapter 270, Sections 270-5 of the Code of the Town of Ithaca, pertaining to the definition of "home occupation", to allow said dermatology practice to 1) occupy +/- 1443 square feet of space (where a maximum of 500 square feet is permitted for a home occupation), 2) include five non-resident employees plus one resident employee (where no more than two persons outside the resident household, and no more than four persons total, including the resident household are permitted), and 3) sell products necessary for the care of patients through in-office dispensing (where the sale of goods, excepting those created, assembled, or reconditioned completely on the property, is not permitted in home occupations), Town of Ithaca Tax Parcel No. 35-1-9, Low Density Residential Zone. Chairperson Sigel—Good evening. Ms. Silvers - Hi. Chairperson Sigel—Do you want to start now? Mr. Dubow - Let me, if I can, this is a rather complicated situation, so I think it would be of some benefit to the board, and I believe some benefit to the applicant as well, to understand what I believe the procedure will be for the board to review this. What's being asked for is to put a home occupation use in these premises. A home occupation is permitted only with the special approval of this board. So, if the zoning law provides that a home occupation, which is defined in the zoning law, and we can take a look at that in a moment, but there are certain conditions that limit what a home occupation can do, but for the purposes of this particular matter, in the first instance, the board will have to make a determination with respect to this special approval. The problem is, if she were coming here and meeting all the conditions of the special approval/home occupation requirements, the board would have to go through those criteria and determine whether in fact, it meet those criteria or not. The issue here is that the application includes three particular instances where the actual conditions that have to be met for the home occupation use are being asked to be varied. And that creates an unusual situation. The law provides, and this is only since the early 1990s, prior to that time a special approval with certain required conditions could never be varied by the board. There was no circumstance under which you could say, we're not going to hold you to conditions 1, 2 and 6. In the early 90s, the Town Law was amended to provide that, in the case of a special approval, there are two ways to vary those conditions. One is if the Town Board has granted to this board the authority to vary, to grant relief, or to waive certain requirements with respect to a special approval, and the Town Board has not granted this board that right. The second by Town Law, is that an application can be made, by the proponent, for area variances related to the issues for which he is seeking relief, in terms of the particular requirements of the home occupation. In this case, the 26 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES amount of square footage in the house, the number of employees that she is proposing to have, and the sale of some products in conjunction with her dermatology practice. So, she is permitted since 2004, the courts in New York have determined that this board does have the right to entertain the application for those three variances, but only as to area variances. And that determination will need to be made before you can make your special approval determination, which has its whole set of conditions that you will have to look at as well. The critical issue at the moment now is determining whether the three reliefs she is requesting fall in the category of area variances, as opposed to use variances. And with respect, if the Town Law, the State Town Law, and the Town's local regulations, require a use variance is basically altering or permitting a particular use that otherwise wouldn't be permitted in a particular zone. An area variance is something that requires area or physical or dimensional relief. There is a lot of case law in this area, and the case law to some extent says you have to look at those two definitions, but if it doesn't fit the use variance, then it's more likely an area variance. And some of them are very clear. Set back requirements, frontage requirements that we just ruled on, those things are very clear. These are a little bit more nebulous. So I think the board in the first instance, has to make a determination as to those three requests that are being made as to whether you would deem those to be area variances. The first is the amount of square footage, in the house, that exceeds the amount that would otherwise be permitted to be dedicated to the home occupation. On that one I think it's relatively clear that you could determine that to be a dimensional or a physical type variance as opposed to a use variance. The second one is the number of individuals to be employed or to be engaged in this practice. That I think is something the board has got to determine. It's a little bit more difficult to characterize as an area variance, or whether you would categorize that in some way as having an impact on this particular use. That is, is the home occupation use tied to the fact that there would be just a certain amount of employees, or is that more in the category of the area variance. The third, the sale of the product, is the most difficult. And I think that would be somewhat difficult to define as an area variance, because the home occupation use provides sales of products, but only if those products are produced on premises. I think the general concept is if you had a pottery shop, if you had somebody who is knitting or sewing, products that are produced on premises. These are products that would be not necessarily produced on premises. They would be products that she might buy and have for resale to costumers. I don't know and that's something I think has to be clarified. But those are the threshold decisions that have to be made is if you define any of variances as a use variance as opposed to an area variance, you don't have the right to grant that, because the statute says that you can only grant area variances. And then the question becomes, the criteria for a use variance become very different in any event. So, it's a little bit complicated, and I don't want to make it any more confusing. But I think probably in terms of order, the board should probably take a look at those three requests and make an initial determination as to whether you would define those, for the purposes of this proceeding, as an area variance or as a use variance. And if you determine one or more of those to be a use variance, then I think we run into a different set of criteria, and maybe even not the ability for this board to grant that. 27 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES Chairperson Sigel—I would have thought that the order would have been the opposite, in that you can grant the use as a home occupation, meeting all of the, only obviously granting all of the conditions of the home occupation, and then from there, expand what is allowed by the home occupation, to include more square footage. Mr. Dubow - Intuitively, that's so. The way the cases read is that you only have the right to grant a special approval if it meets all of the zoning requirements... Chairperson Sigel—Oh, OK. Mr. Dubow - Until you make the determination as to... unless you vary those requirements... Chairperson Sigel—OK. Mr. Dubow - So, otherwise, the only thing you can do is grant the special permit approval, but you would grant it only subject to the conditions which you know aren't going to be met. Chairperson Sigel — Only if that was ultimately all we were going to grant, would we do that. Mr. Dubow - That's right, but to get there, I think the courts have indicated that you need to address the variance question, make your determination on that, and then that will give you the ability to grant the special approval if you choose to do that, with whatever waivers or variances you are willing to grant, if any. Mr. Krantz — One question, and one point is, is this indeed low density residential? Because that is pretty much agricultural land everywhere around there. Ms. Balestra—It's zoned Low Density Residential. Mr. Krantz —OK, and the second point is this board gave Eddy dale permission to have a supermarket, which they have, Eddy dale, the market place right there, they do not just sell local produce, there is no question about that. That store compares with Wegmans, on a minor scale. Mr. Dubow - Now, this property, by the way, everybody knows, this is the old Turback's building, there were two prior variances that were granted, one back in I think... Ms. Balestra— 1967. Mr. Dubow - For the actual restaurant operation, and the second for a catering operation that I think was in the 90's. Ms. Balestra—2000. 28 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES Mr. Dubow - 2000, and both of those variances... Mr. Krantz—So, we have a history here of giving permission Mr. Matthews —Use permission. Mr. Dubow -Use permission, right. Chairperson Sigel—Yeah, those were use variances. Mr. Matthews —This board had previous...? Mr. Krantz—Yes, on Eddy Dale, we allowed them to expand their market. Chairperson Sigel—No, but... Ms. Balestra—Not Eddy Dale. Chairperson Sigel — Just confining the discussion to this property though, this property has received use variances in the past. Mr. Matthews —By this board? Chairperson Sigel—Yes. Not by us, obviously. Mr. Matthews —But, we were just told... Chairperson Sigel—Well, for this catering, yes. Mr. Matthews —We were just told that we can't... Mr. Dubow - No, you can, because those didn't require the special approval. They just came in, they had a use, this is a use, this particular use, the home occupation use, is only permitted in this district with a special approval. And that special approval requires, with respect to a home occupation, that it be subject to all the conditions that are set forth and I hope everybody has taken a look at. Which include, as I say, the number of square footage you can have, the number of employees you can have, what you can or cannot sell on the premises. The intent is to make it truly a home occupation, as opposed to a fully operational business. Those are the criteria. That's what makes this a little bit more complicated. If this applicant were to come in and say I want to convert the whole house to a medical office, that would be a straight use variance, no question about that, and the board would have to go through the use variance requirements, and make a determination on that basis as to whether you could or could not grant that. Mr. Matthews —right, OK. 29 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES Chairperson Sigel — OK, well, let's let the applicant begin. If you could begin with your name and address. Ms. Silvers - My name is Kimberly Silvers, my current residence is 102 McDuffee Street in Sayre, Pennsylvania. This is my business partner, Michelle Mateo. Chairperson Sigel — And if you would like to begin with an overview of your plan, obviously we have a pretty good idea of your plan, but maybe just make any points you'd like to make initially. Ms. Silvers - Well, I'm interested in moving both my family and my business to the Ithaca area from the Sayre area, and I'm interested in utilizing the large kitchen area and the area that was formerly the bar area in the restaurant as a business, and the remainder of the space as a home. In order to have a dermatology practice in that area, there's no way that I could have a practice in 500 square feet, the area that I want to use will be less than 24% of the entire property. And, also, to run a dermatology practice, I would require more than two people, I am going to require nurses in the back and secretaries in the front, and there's no way that I could do that with only two people. And the third point is that it is general practice to be able to dispense products out of the dermatology and physicians offices, we would packaging those, perhaps with our own private label and so forth, but that would be something that would be part of the treatment for the patients that would be offered to them as a service. Chairperson Sigel — Would you only be selling products to people who were also your patients? Ms. Silvers -Yes. Chairperson Sigel—You would not, for instance like a... Mr. Ellsworth—Pharmacy? Chairperson Sigel — Well, yeah, I was thinking of a hair salon. They sell products, and they will sell products to anyone who walks in. Ms. Silvers - Well, the general idea is that people would come and have a consultation and we could design a treatment for them, and they would be able to continue to purchase it there, for their maintenance treatments and so forth. Chairperson Sigel—So are these all non-prescription products? Ms. Silvers - They are technically non-prescription, but most of them are only available through physicians' offices, so it's not something you can just walk into a drug store and just purchase. 30 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES Chairperson Sigel—OK, anything else you wanted to say at this point? Mr. Ellsworth—Are all of these prepared at your location? Ms. Silvers - No, they would not be prepared there, they are ordered through specific companies. The idea would be that we would package it in a certain way... Mr. Ellsworth—Right, but you're mixing them and blending them or whatever. Ms. Silvers -Right,putting certain products together in certain ways. Mr. Ellsworth—I'm trying to tailor this like a home product, you know. Ms. Silvers -Yes. Chairperson Sigel — I lived in a town growing up, where you could not sell anything on Sundays that was unprepared food, so grocers would cut a watermelon in half, and call that prepared, and then they could sell it to you on Sunday. Well, as David pointed out, we have three issues: the area, which obviously is an area variance. Mr. Dubow- I think that's relatively straightforward. Chairperson Sigel — I think so. With regard to the number of persons, I think of that as being analogous I remember to a case that John told us about where there was a restriction on the number of units in a multiple unit dwelling, and that went, at first people argued that that was a use variance because it was the intensity of use, but actually it turned out that that was decided to be an area variance. Mr. Dubow - I think another analogous situation is parking, because there are a number of commentaries on this issue, because it is a very grey area so the cases are not always where you look. But there is commentary out there from people who do this on a regular basis and study this and opine on it, that with respect to parking matters, off street parking, that is generally being treated as an area variance as well. And I think you could tie the number of people working in a setting, similarly to the number of cars you would permit to park there in terms of density issues. Density is one of those things that would be more of an area variance than a use variance, but that again is sort of the board's determination to make that interpretation. Chairperson Sigel—And with regard to the dispensing of treatment products, I do tend to agree that it might be hard to claim that that's an area variance, but I wonder if the board could make a determination that the incidental dispensing of products to treat patients by physicians is, say, a normal part of their business. Mr. Dubow - You could do that, or given the description that was just given by the applicant, you might be able to argue that the goods are, in fact, created, assembled or reconditioned on the property, in the sense that they are under a physician's direction, 31 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES being prescribed to certain patients in a way that is independent and somewhat differentiated from simply buying it, putting it on the shelf and letting somebody come in and buy it. So, I think if you are inclined, I think you could try to characterize it as meeting requirement 4 of the home occupation as being created, assembled, or reconditioned completely on the property. I mean, that again is sort of within the purview of your discretion as to how you might want to handle that, but I think that might be a more palatable way of doing it than... Chairperson Sigel—Which sets less of a precedent. Mr. Dubow - Right. Mr. Krantz — Almost every physician, veterinarian, ophthalmologist, all dispense incidentally... Chairperson Sigel—I mean that's what I was thinking. Mr. Krantz—My periodontist sold me an electric toothbrush, even. Chairperson Sigel—Really? Mine gave me one for free. Mr. Dubow - Your incidental aspect may come in in the area variance criteria that you have to go through, as to whether it's detrimental to the community. So, you may see that as a low level operation that would have no impact on the kinds of issues that you need to address for the purposes of approving the area variance. Mr. Matthews —In the same vein, can somebody give me an historical perspective again on why they limit it to 500 square feet? Mr. Dubow- I don't know if you have any... Ms. Balestra—I'm sorry. Mr. Dubow - He's asking about the 500 square feet. Your local statute says it's 25% of the floor space, or 500 square feet, whichever's less. So, I don't know if John has any recollection of where those numbers came from. Normally it would be 25% or 500, in this case, the structure is quite large, so obviously 25% would work, 500 doesn't for her purposes. Mr. Matthews —Why limit it to 500? Mr. Kanter- I don't think the 500 square feet came from any particular study. Chairperson Sigel—You have to pick a number though. Mr. Ellsworth—Probably to characterize it as a home business, not a... 32 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES Mr. Dubow - It may also be tied to a normal home, at some point, was maybe 2000 square feet, so somebody may have said that at the time this was looked at, that's maybe an average size home, and the 500 was somewhat correlated to the 25% of that. Mr. Matthews —Why would they limit it? Why would they limit it? Traffic? Chairperson Sigel — Well, if you look at a more traditional neighborhood, say the Northeast neighborhood, you've got homes fairly dense there, you don't want someone turning their home into essentially a business right in the middle of a residential neighborhood. Mr. Matthews —OK, that, thank you. That's a good piece right there. Chairperson Sigel—They might meet all the other criteria, and they might use their entire house for who knows what? Woodworking... Mr. Dubow - That would certainly be the basis for limitation. The 500 I'm not sure, as I say, it may just have been... Mr. Krantz — That residence was, incidentally, a residence for the Babcock people, Barbara Hirschfeld was born and raised there, before it was a restaurant. And then it was the gables, and then it became Turback's. Mr. Matthews — So the point that limiting the square feet that can be used for a business is arguably moot. Because this is in a rather open rural area. Chairperson Sigel—Well, that certainly factors into a decision to grant a variance. Mr. Matthews —It could factor into it, right? Chairperson Sigel—Yeah, in a denser, residential neighborhood, Mr. Matthews — That's a different story, but this is not one, this is dense with trout and deer and so forth. Chairperson Sigel—You can certainly see reasons here why you would vary that. Mr. Dubow - The uniqueness is that not only is it in a not dense area, it is also a much larger structure than a usual house. Mr. Matthews —So we have the power on this board to grant 25 % of the square footage. Chairperson Sigel—Well, we could grant whatever we want. 33 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES Mr. Dubow - You could grant whatever — you have the right to vary that 500 feet to whatever you deem appropriate based upon the area variance criteria. Mr. Matthews —OK, thank you. Mr. Ellsworth — I'd like to make a general comment. The Ithaca area needs another dermatologist. I go to one, there are only two, one of them is so booked you can't get an appointment for 6 months,plus he takes a month off in the summer. I go to the other one, every 6 months because of my fair complexion, and he's barely got time to talk to you. In the last year he's gotten so busy, plus he's in Syracuse two days a week. There evidently used to be another dermatologist, who went out of business or left or something I don't know, but any doctor will tell you that we need a third dermatologist in the Ithaca area. So, I guess I'm not saying we got to automatically approve this. Mr. Matthews — I feel your pain, Harry, but I can't vote for that reason. I have a fair complexion, but I can't vote for that reason. Chairperson Sigel — So, you've indicated that your current proposed usage area will be 24%? Ms. Silvers - That's correct. Chairperson Sigel —And then you indicated that you might want to expand in the future, and I'm wondering how big an area is that that you are considering expansion into? Ms. Silvers - There's an open space on the second floor in the front that was formerly part of the restaurant, I just wanted to keep that as an option in the future, to maybe have a class there, for teaching purposes but not specifically for more treatment rooms or anything. That would mostly be for my own use, but we might open that up sometimes for a class, or for teaching. Chairperson Sigel—OK, and do you know approximately how many square feet that is? Ms. Silvers - I don't think I have those measurements, I can get them to you. Chairperson Sigel — It's not critical, but when someone indicates that they have future plans, we just like to have a feel for how far it might go. Ms. Silvers - I think it's probably, that's less than 500 square feet on the top there. Chairperson Sigel—OK. Mr. Krantz—You know, that area was used to show silent movies and serve popcorn. Mr. Matthews — I also asked my wife to marry me in that area, if that means anything. And she said yes. 34 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES Chairperson Sigel — So I guess, is it your opinion David that it would be better to try to allow the product dispensation as part of 4? Mr. Dubow - I would justify it in both areas. I think when you do the area variance criteria, you will have to make, you have to follow those site criteria, and I think you may want to note that you consider that particular aspect as being so incidental and consistent with the normal practice of a physician that you are sort of characterizing it more in the area variance area than ... Chairperson Sigel — OK, because it seems to be that we either need to determine that it's allowed under section 4, or determine that it's allowed sort of blanketly allowed for a doctor. Mr. Dubow - You can do both, is what I'm saying. At a minimum, I think the safer way is to use ... Chairperson Sigel—Use 4, because then that's explicitly allowed. Mr. Dubow - Use 4, because then your... and I guess if you're prepared to make that determination then you don't really have to address the variance, I guess is what I'm telling you. So, if the board is of a mind to consider a product, then I think that variance would be removed from the table, because you wouldn't have to act on it, because it would meet that requirement. So, even though you'd be doing it a little bit out of order, I think you could certainly make that determination, take a straw vote to determine that that's the way the board is oriented to act, then I think the variance wouldn't be necessary. Chairperson Sigel—OK. Mr. Kanter - If you did that, could you include in your finding, it wouldn't have to be a condition, that such products not be sold or dispensed to others than patients. Chairperson Sigel—I don't know. Mr. Dubow- You certainly have the right to make that... Chairperson Sigel — But if we determine that it falls under section 4, then I don't know that we would have the justification to further restrict it. Mr. Kanter- Well, I would say as a finding that that is your understanding that that is the intent of the use, and therefore it falls under that, so it's on the record that way. Chairperson Sigel — So, it is the case that at least in some instances you do prepare a treatment product for someone from more than one product? Ms. Silvers -Yes. 35 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES Mr. Matthews —What is your concern? Chairperson Sigel—Well, a straight reading of the town Code would not permit a product that was not created, assembled or reconditioned completely on the property. And I think the intent of that is to not allow you to create a retail store in a residential zone, where you would just be reselling products. Mr. Ellsworth—With the associated traffic and so on. Chairperson Sigel — The idea is that it be a home occupation, and if you are selling any product, that you are creating the product that you sell, and I think it might be reasonable for us to determine that the applicant is in a way, creating the product that they sell as an incidental function of the medical practice. Mr. Matthews —How are they creating the product? Chairperson Sigel — Well, they do purchase the product, but then they, at least in some case, do mix things together and prepare the product there. Mr. Matthews —That's true. OK, thanks. Mr. Dubow - You also indicate that you might prescribe or dispense multiple products in conjunction with each other. Ms. Silvers - Right, and so I think it is in my interest, my business interest to limit that, and so they will be not something people could just walk in and purchase, they will sort of exclusive products. Chairperson Sigel —I suspect that none of the board members are really concerned about you selling a small amount of products as part of your business, because in this case, it's clearly incidental, but we do need to justify it. I mean, the other alternative is that we could possibly make a finding that it is a normal practice of physicians to do this type of thing. That would be more of a blanket opening. Mr. Matthews —I would suspect so. Mr. Ellsworth—Well, not regular physicians. Regular physicians write prescriptions. Chairperson Sigel — Sometimes a physician will have something in the office that they just give or sell you. Mr. Matthews —Dermatologists have their own... Mr. Matthews —Pardon? [inaudible] 36 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES Chairperson Sigel—They might have certain things they would sell you, yeah. Mr. Matthews — So the question is, most dermatologists have a safe full of these medications? Ms. Silvers - Yes, because we need do carry special products for people that we are treating for skin cancer, for sensitive skin and so forth, and acne. Mr. Matthews —That's normal? Ms. Silvers -Yes. Mr. Matthews —You're not doing anything abnormal? Mr. Dubow - It may be worth noting as well that at the bottom of the conditions of the home occupation, it lists what they consider to be typical home occupations, one of which is a hairdresser. So, and I think somebody has commented earlier that a hairdresser certainly is an example of somebody who normally dispenses product, not necessarily to, you thought to the public, but the fact that that's included may give you some sense as to what was intended by the home occupation requirements. Mr. Matthews —Thank you. Mr. Kanter- Is the wording of that condition 4, something that the Codes and Ordinances committee might want to revisit if its an interpretational problematic condition of a physicians office, if it's something that would be a desirable thing to encourage to have in the town, and yet your finding difficulty in making a finding based on the wording. Is that something that should go back for a look at Codes and Ordinances Committee? You can decide that later. Chairperson Sigel — Yeah, it wouldn't hurt, although I really don't have a problem making the finding that it's... if we had to, but I agree that we can also do it under 4. OK, so, do we need to make an environmental assessment approval on this? Ms. Balestra—Right, for the special approval. Chairperson Sigel—Any comments on that? Ms. Balestra — I don't believe staff has any environmental concerns with the proposal. It's a low-density residential zone, and this is a single family home with a home occupation, it's an appropriate use for the area. It's also a less intense use than the former restaurant use. So, it's fine. Chairperson Sigel — Certainly going in the right direction. OK, at this point we'll open the public hearing if anyone wishes to speak. If not, we'll close the public hearing. 37 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES Chairperson Sigel opened and closed the public hearing at 8:32 p.m. Chairperson Sigel—Now, the Environmental Assessment is for the special approval? Ms. Balestra—Yes. Chairperson Sigel—Not for the variances? Mr. Dubow - Well, no, it would just be for the special approval, because again, an area variance for a one, two or three family residence is not required to be subject to SEQR. Chairperson Sigel — So we can do that in the middle. After we make the area variances, we could make a motion on the environmental assessment. Mr. Dubow - Yeah, pr can do that, I mean there is nothing that precludes you from doing that in the first instance. By the way, the record should reflect that there is a letter from the county Department of Planning that opines that it will have no negative inter- community or county-wide impact and doesn't make any other comments or recommendations. Chairperson Sigel — OK, well then I will begin by making a motion to make a negative determination of environmental significance in regard to the appeal of Kimberly Silvers for the reasons stated in the environmental assessment form prepared by Town staff, with the exception,possibly of statement 3 under C4, because that contradicts... Mr. Dubow - Right. Chairperson Sigel—Second? Mr. Niefer—Second. Chairperson Sigel—All in favor? ZB RESOLUTION NO. 2005- 054 : ENVIRONMENTAL ASSESSMENT : Kimberly Silvers, 919 Elmira Rd, Tax Parcel No. 35.-1-9 MOTION made by Kirk Sigel, seconded by Jim Niefer RESOLVED that this Board makes a negative determination of environmental significance in regard to the appeal of Kimberly Silvers, for the reasons stated in the Environmental Assessment Form prepared by Town staff, with the exception of statement 3 under C-4. The vote on the MOTION resulted as follows: 38 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES AYES: Sigel, Ellsworth, Krantz, Niefer, Matthews NAYS: None The MOTION was declared to be carried unanimously. Chairperson Sigel—OK, I don't know if that means that it gets stricken from what I sign. Mr. Dubow- I think you can just initial that, and then just. Chairperson Sigel — And I will move to grant the following two variances in regards to the appeal of Kimberly Silvers: First, to allow an owner-occupied single-family home with home occupation, with the home occupation to occupy, I would be inclined to say, no more than 25% of the square footage, which is, no more than 1,525 square feet? Ms. Silvers -mmm hmmm. Chairperson Sigel — to a home occupation to occupy no more than 1525 square feet. Second, to allow a home occupation to include no more than 5 non-resident employees, plus one resident employee. And, third... Mr. Dubow- [inaudible] Chairperson Sigel — I was going to throw in to make a determination, although should I do that separately? Mr. Dubow-No, that's OK. Chairperson Sigel — And third, to make the determination that the goods sold by the applicant as part of her practice fall under section A-4 of the home occupation definition and qualify as "a product being created, assembled, or reconditioned completely on the property." With the finding that the requirement for an area variance have been satisfied for the two variances in this motion. And, I think that's it. Mr. Krantz — How about changing that to six non-resident employees, because a lot of them are part time. No more than six, instead of no more than five, because... Chairperson Sigel — I think it would probably be five at one time. Five at one time, I would think. Mr. Krantz—At one time, sure. That's fine. No more than five at one time. Mr. Dubow- [inaudible]. 39 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES Chairperson Sigel — Well, Ron was saying that he thought that some of them might be part time, and I would assume that the 5 non-resident employees would be at one time on site, not total. Mr. Krantz—At one time is fine. Mr. Ellsworth — Do we need to say that these homemade products are dispensed to patients? Chairperson Sigel—We could. Mr. Krantz—Incidental dispensing? Chairperson Sigel—We could say as part of the finding, that they qualify under section 4 if they are only dispensed as part of treatment to patients of the practice. Mr. Dubow - You could add that condition, or that finding when you give the special approval approval, because now you are just doing the variances at the moment. Chairperson Sigel—OK. Mr. Matthews —Question. Chairperson Sigel—Yup. Mr. Matthews —Is this limited to the applicants only? Chairperson Sigel—No, normally this would be for the property. Mr. Matthews — Let's say they found that Ithaca wasn't desirable for one reason or another and they sold this facility to someone else. Could that someone else pick up this variance? Mr. Dubow- As to a medical office operation? Mr. Matthews —Yeah. Mr. Dubow - I think there is an argument that that person could, subject to the same conditions. If someone wanted to put in a hairdresser or another use, there might be a question as to whether, it would depend how the planning staff would look at that, but I think one could certainly argue under those circumstances that a new variance would need to be granted. Mr. Matthews —So it's limited to the present people, or future lessees or future owners. Mr. Kanter - Well, or certainly similar uses. 40 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES Ms. Balestra—Similar uses. Chairperson Sigel — For a doctor's office, I think they would be able to come in and if they met all of the limits we've set forth, would be able to. Mr. Matthews —OK. Chairperson Sigel - Just like, the property still has a use variance for operating a restaurant. Mr. Kanter - I think, actually, if it came to a question of similarity of use, we would actually bring it back to this board, at least for an interpretation if nothing else. Mr. Matthews —OK, thank you. Chairperson Sigel—OK, second on the motion for the area variances? Mr. Krantz—OK. Chairperson Sigel—All in favor? ZB RESOLUTION NO. 2005- 055: Kimberly Silvers, 919 Elmira Rd, Tax Parcel No. 35.-1-9 MOTION made by Kirk Sigel, seconded by Ronald Krantz. RESOLVED that this Board grants the following two variances in regards to the appeal of Kimberly Silvers: First, to allow an owner-occupied single-family home with home occupation, with the home occupation to occupy no more than 1,525 square feet; second, to allow a home occupation to include no more than 5 non- resident employees, plus one resident employee. Third, this board makes the determination that the goods sold by the applicant as part of her practice fall under section A-4 of the home occupation definition and qualify as "a product being created, assembled, or reconditioned completely on the property." FINDINGS: The requirements for an area variance have been satisfied for the two variances in this motion. CONDITIONS: None The vote on the MOTION resulted as follows: AYES: Sigel, Ellsworth, Krantz, Niefer, Matthews NAYS: NONE 41 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES The MOTION was declared to be carried unanimously. Chairperson Sigel — And, now we will, I will move to grant the special approval requested by Kimberly Silvers under section 270-57 of the Town Code to convert a property located at 919 Elmira Road to an owner-occupied single family home with offices for a dermatology practice for a home occupation. With the finding that the requirements for a special approval have been satisfied, and with the condition that any products dispensed on site, be dispensed only to patients of the practice. Mr. Dubow - I think that the requirements have been satisfied based upon the variances that you have previously granted. Chairperson Sigel — Yes, right. And all the other requirements under home occupation definition have been satisfied. Mr. Dubow- Right. Chairperson Sigel—OK. Second? Mr. Krantz—Second. Chairperson Sigel—All in favor? ZB RESOLUTION NO. 2005- 056: Kimberly Silvers, 919 Elmira Rd, Tax Parcel No. 35.-1-9 MOTION made by Kirk Sigel, seconded by Ronald Krantz. RESOLVED that this Board grants the special approval requested by Kimberly Silvers, under section 270-57 of the Code of the Town of Ithaca to convert a property located at 919 Elmira Rd, to an owner-occupied single-family home with offices for a dermatology practice as a home occupation. FINDINGS: The requirements for a special approval have been satisfied based upon the variances previously granted, and all the other requirements under the home occupation definition have been satisfied. CONDITIONS: Any products dispensed on site shall be dispensed only to patients of the practice. The vote on the MOTION resulted as follows: AYES: Sigel, Ellsworth, Krantz, Niefer, Matthews 42 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 2, 2005 APPROVED MINUTES NAYS: NONE The MOTION was declared to be carried unanimously. Chairperson Sigel—Alright, I think that does it. Good luck. Ms. Silvers - Thank you. Ms. Mateo - Thank you very much. Other Business Mr. Kanter discussed the changes in the Town's departmental structure and the changes in staffing of the Zoning Board of appeals. The Planning department will do the administrative functions for the Zoning Board. Chris Balestra will be the regular representative to assist the board. Code enforcement officers may be able to attend a meeting if necessary. Mr. Kanter also mentioned the draft schedule of meetings for 2006. The board can approve the schedule at the next meeting or thereafter. The board engaged in a general discussion about what changes in the administrative functions of the Zoning Board might be helpful. The board discussed the possibility of having an alternate member of the Zoning Board of Appeals. Chairperson Sigel adjourned the meeting at 9:07 p.m. Kirk Sigel, Chairperson John Coakley, Deputy Town Clerk 43