HomeMy WebLinkAboutZBA Minutes 2014-08-18 TOWN OF ITHACA ZONING BOARD OF APPEALS
Monday August 18,2014
Present: Rob Rosen Chair,Bill King,John DeRosa, Chris Jung, George
Staff: Bruce Bates,Director of Code Enforcement; Susan Brock,Attorney for the Town; and
Deb DeAugistine, Deputy Town Clerk
The meeting was called to order at 7:05 p.m.
Appeal of Neil Wintermute IAL, Inc., owner, and Michael Perehinec,Jr., agent,requesting a
variance from the requirements of Chapter 270-54"Permitted Principal Uses"and/or 270-56
"Permitted Accessory Buildings and Uses"of the Town of Ithaca Code, in order to be able to
have a repair garage in a storage building which is not permitted in a low density residential
zone,located at 615 Five Mile Dr. Tax Parcel No. 31.-2-30, Low Density Residential(LDR).
Michael Perehinec and Neil Wintermute were present. Mr. Perehinec apologized about the
survey map not being signed. He will supplement the application with the survey as soon as the
surveyor delivers it.
Ms. Brock said code enforcement might need it before they can issue a building permit.
Mr. King asked whether Ithaca Airline Limousine will keep operating out of this location.
Mr. Perehinec responded that it will not;the goal of the use variance is to facilitate the sale of the
property to Ithaca Dispatch,which will begin to operate at 615 Five Mile Drive.
Mr. King commented that*the second page of Exhibit C shows that the use variance will result in
a lift system being uninstalled from Building C and placed in Building B.
Mr. Perehinec said that if the use variance is granted,he's certain that Mr. Kadar will use
Building B as the repair garage. Building B is the older warehouse, Building C is the newer
warehouse, Building A is an office space. The lift will be moved if the use variance is granted.
To a question from Vignaux about bathroom facilities, Mr. Bates stated that this property has
been used in violation of the zoning since he started working for the town. He has tried to get the
owner to correct this. As far as code goes, Building B is supposed to be a warehouse and
Building C is supposed to be for warehouse storage only. The applicant,in proposing this use
variance,is trying to comply: he will use Building C as warehouse and Building B as a repair
garage. They will still have to get a building permit to do the work and make it compliant. If they
choose to make Building B a repair garage,there's nothing in the building code that says you
can't have a restroom in that building. He can't have it now,because it's supposed to be a
warehouse, and they didn't get a permit to install the bathroom in the first place. That's why it's
in violation now.
Mr. Vignaux said that if this becomes a repair garage, it can have the lift,the bathroom facilities,
and the heating plant.
Mr. Bates responded that that is true,providing it meets the code. They still have to apply for a
building permit. If this variance doesn't go through, the applicant still has to comply with current
code requirements.
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ZBA Meeting 08-18-2014 page 2
Mr. Perehinec noted that Building C will be empty once the lift is removed; then Building C will
be in compliance if the variance goes through. Certain steps have to be taken: a fire alarm and
sprinkler have to be installed in B, and a supervisory alarm system will have to be installed in C.
Pleasant Valley Electric is prepared to do the work. Each party has taken steps to remedy and
they both understand that before the property can be transferred and utilized as a repair garage,
certain conditions have to be met.
Mr. Rosen said the board should discuss whether this will alter the character of the
neighborhood. It's zoned low-density residential, is at the intersection of Coy Glen Creek, and is
surrounded by residential properties.
Mr. DeRosa asked for clarification in terms of using this building for repairs—that it entails only
repairs to the fleet of the occupant.
Mr. Perehinec responded that it's necessary to have on-site repair. The number of vehicles
entering and leaving the property would be the same as it is now.There's no residence within
500 feet.There's never been complaints about Mr. Wintermute running his business, and Mr.
Perehinec doesn't anticipate any complaints if Mr. Kadar takes it over. If the use variance is
granted for the repair garage,there will be no change in the character of the neighborhood.
Mr. Vignaux pointed out that it's not just a repair facility,but the headquarters for the taxi cab
dispatches.
Mr. Kadar, owner of Ithaca Dispatch, said he has a fleet of 19 vehicles. On a daily basis,there
are two shifts. The first starts between 5 a.m. and 7 a.m. and consists of 15 to 16 vehicles.
Another shift starts between 5 p.m. and 6 p.m., and that has an average of 13 vehicles. Drivers
report to work in the morning and leave with their vehicles. A vehicle may return once or twice
during the day to use the bathroom facility. The vehicles are constantly moving around the city,
town, and county and are not returning to the base after every call. They come in after their shift
and a new shift starts. Thirteen to 14 cars go out in the second shift, then come in at the end of
their shift. Supplies are delivered a few times per day. So there's a little bit of activity in the
morning and a little bit in the evening with not much in between.
Mr. Vignaux stated that he worked as a driver for a previous company that was subsequently
acquired by Mr. Kadar. Mr. Rosen said he did also.
Mr. Rosen commented that 100 to 120 trips per day up and down that lane is a lot.
Mr. Perehinec said that considering both companies are basically in the same kind of business—
they transport individuals,they have a dispatch center,they have a fleet of vehicles—and
considering there haven't been complaints before regarding the use by Mr. Wintermute,it
doesn't seem there is more proposed use on the roadway.
Mr. Kadar said Mr. Wintermute has 17 vehicles, which is the same as him. He is now on 400
Spencer Road, and in the eight years they've been there,they haven't had a single complaint and
they are much more visible in that location than they will be on Five Mile Drive, considering
their current building is right out in front on a busy road. He thinks the number of vehicles is
almost imperceptible. That they have some movement in the evening is actually a plus for the
neighborhood: their drivers are working with police officers on a regular basis to report unusual
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ZBA Meeting 08-18-2014 page 3
activity. It's a symbiotic relationship. He thinks the fact that they are moving around at night
helps the overall security in the area.
Mr. Vignaux said he doesn't think it will bother the neighbors at all: the traffic is isolated to the
lane. He asked who owns the lane.
Mr. Bates responded that it's a private road owned by the property owner, and that NYS DEC
has a right-of-way across it. It's on the official town map,but it's not maintained by the town. It
is in the current owner's right to use the road.
Ms. Brock added that the state has rights to maintain the inlet,possibly even to dump dredge
material on the road. The property owners in the area are trying to sort that out and maybe have
some revisions to the state's rights,which were obtained a long time ago. She didn't think that
whole query was relevant to the ZBA. It's on the town's official map, so the town has recognized
that it's a road the property owner has a right to use to access their property. It is not a town-
owned road.
Mr. King pointed out that the variance is just for the repair garage and not to operate a taxi
dispatch. That's a separate issue to him. He asked whether the town had a problem with that.
Mr. Bates responded that there have always been businesses operating out of that location. It's a
legally existing,nonconforming business. If it was not the repair shop,but just running the
business out of there,he doesn't think there would be a difference in what currently is allowed
based on previous uses. There have been businesses in there since the 1950s, so it has never
stopped being a business use. The difference is in the use of the buildings. The repair garage is a
bit different than just a business-type use because the buildings were permitted for warehouse
and office use.
Mr. Perehinec said that leads to the question: is this is a self-created hardship. At first glance, it
might seem like Mr.Wintermute is the one who wants to put a repair garage in. However,the
business prior to when Mr. Wintermute first purchased the property operated a repair garage out
of it. When Mr. Wintermute purchased the property, he stated his intent to continue repairing his
fleet. It would have been impossible for him to not have made that known to representatives of
the town,because it wouldn't have made sense business-wise for him to not continue to repair
his fleet.The town representatives didn't object at the time he purchased it.
Mr.Wintermute said he purchased it from Joe Ciaschi,who had five tenants, including an
electric company, a rock band that used the space for practice, a storage area, and a tree company
that used it to repair their four or five trucks.
Mr. Perehinec said that in order to inspect their vehicles,they have to have a lift.New York State
inspects this every six months.
Mr. Rosen asked when Mr. Wintermute found he was in violation.
Mr. Perehinec said he had a letter from Mr. Bates from 2011,but he understood that Mr. Bates
brought it up earlier than that. At this point,all parties understand that the violation exists and
want to get into compliance.
Mr. King asked Mr. Bates whether he had information on the previous sale.
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ZBA Meeting 08-18-2014 page 4
Mr. Bates said there is the old C of O. He went back to the old permits,but previous notes didn't
explain much—they were generally a one-page application. Lots of things done back in the
1980s and `90s were done with a handshake. He can only go by what he has on record, which he
provided in the packet. Was the town doing their job? He can't say yes or no. At the time he took
over, a lot of records were behind, and staff have been trying to catch up on them.This is one of
the properties where they tried to work with the owner in trying to be fair.Although there aren't
a lot of records,they still need to be reasonable in what they're trying to enforce. Just because
they didn't enforce it previously is not something the board should base their decision on.
Ms. Brock stated that there's a legal principal that there's no estoppel against the government,
meaning you can't prevent the government from enforcing the law if in fact it failed to do so in
the past. If a permit was wrongly issued, that doesn't prevent the government from enforcing the
law.
Mr. Perehinic stated that at present,both parties understand that the properties are not operating
within the code and that they're taking steps and applying for the use variance to remedy that. As
far as the question of whether this a self-created hardship, it's important to consider what the
property owner believed when he bought the property, and that he probably would not have
purchased the property had he not been able to operate a repair garage.
Mr. Rosen commented that it could be used as another type of business besides a repair garage.
Mr. Perehinec pointed to the letter from Mr. Kellogg detailing what kind of rent Mr.Wintermute
could realize if he rented it out as warehouse storage. A negative number comes up. It doesn't
seem they could do much else except rent the property as warehouse storage.
Mr. Rosen said he didn't agree with Mr. Kellogg's financial analysis. You could question a lot of
the assumptions. Is it self-created or not,could you sell the building as something else: he
doesn't have a clear opinion on that. The board has to decide whether the business owner can
make a reasonable return with an alternative use,whether the alleged hardship is unique and does
not apply to a substantial portion of the district or neighborhood. It's a commercial use in a low-
density residential neighborhood—one of the few commercial uses in the neighborhood. But
then, anybody else might want to open up a repair garage.
Mr. Brock said that the board has to look at this property and the characteristics of this property
as far as uniqueness. How many other properties in the low-density residential zone have office
buildings with attached space like this with a long history of commercial businesses?
Mr. Rosen responded that in that sense, it's unique.Then there's the question as to whether this
will alter the character of this neighborhood, given that there's already a similar business
operating there.
Regarding reasonable return, Ms. Brock asked the applicant to describe their efforts to lease or
sell this property.
It was determined that it was listed twice for a year.This third time, it was on for another year
before there was a purchase contract.
Draft
ZBA Meeting 08-18-2014 page 5
Ms. Brock asked what reasons people gave for not pursuing a purchase and whether they tried to
lease the property before selling it.
Mr. Wintermute responded that two parties looked at the property and said it didn't fit their
needs. He doesn't know what they were looking for. Price was not the determining factor.This is
the only interest he's had. He never tried to lease it.
Ms. Brock said that one thought is that instead of leasing the building to someone else for storage
space,the whole property could be sold or leased to another entity that could use the building for
on-site storage for their business. But their testimony is that he's been trying to sell the property
for three years, and this is the only interest he's had. The board should consider this information
when trying to decide whether they can make a reasonable return by using the property for a
permitted use. A permitted use right now would be a residential use: board members have to
think about whether the property is well suited for that, considering what's there now or what it
would cost to remove what's there and put in a residential use, or a warehouse storage use, which
is a prior nonconforming use.
ZBA Resolution No.2014-019: SEAR Use Variance for a Repair Garage in a Storage
Building,615 Five Mile Drive,TP 31.-2-30
Moved by Rob Rosen Seconded by Bill King
Resolved that this Board makes a negative determination of environmental significance based on
the information given in Parts 1 and 2 and for the reasons stated in Part 3 of the Environmental
Assessment Form.
Vote:
Ayes—Rosen,King, DeRosa,Jung, and Vignaux
Unanimous
Public Hearing
Mr. Rosen opened the public hearing at 7:59 p.m. No one came forward to address the board, so
Mr. Rosen closed the public hearing at 8 p.m.
ZBA Resolution No.2014-0120: Use Variance for a Repair Garage in a Storage Building,
615 Five Mile Drive,TP 31.-2-30
Moved by Rob Rosen Seconded by Chris Jung
Resolved that this Board grants the appeal of Neil Wintermute, IAL, Inc, owner,requesting a
variance from Chapter 270-54"Permitted Principal Uses"and/or 270-56 "Permitted Accessory
Buildings and Uses",to be permitted to have a repair garage in a storage building,which is not
permitted in a low density residential zone, located at 615 Five Mile Dr. with the following
Conditions:
1. The repair facility is to be used to repair only vehicles owned or operated by any onsite
business, and not for repairs to vehicles owned or operated by the general public or any
offsite entities; and
2. This use variance applies only to Building B, and this building may not be enlarged.
Draft
ZBA Meeting 08-18-2014 page 6
Findings:
1. The Board has accepted the applicant's argument that he cannot accept a reasonable
return as shown by his submitted financial evidence and statements at the meeting that
the property was on the market for a total of 3 years before a buyer could be found. The
only prospective buyer has made his purchase offer contingent on the seller receiving the
zoning variance for the repair facility before the sale can take place; and
2. The hardship is unique and does not apply to a substantial portion of the district or
neighborhood because the property contains a legally nonconforming business and the
property has been continuously used for business for 40 years. In addition, the property
contains an office and two other buildings appropriate for business use,which makes this
property unique in the low density residential district; and
3. The requested variance will not alter the essential character of the neighborhood because
subsequent to the granting of the variance, none of the material activities being conducted
on the property will change, and one of the conditions of this variance is that the repair
facility will not be enlarged. In addition, the traffic generated by the existing and
proposed use is approximately the same; and
4. The alleged hardship is not self-created because the current owner reasonably relied upon
his ability to utilize the property as a repair facility based on the operations which were
being conducted at the time of his purchase of the property, and a repair facility for an
onsite fleet could reasonably be construed to be a permitted component of the business
that has been operating and will be operated on the property.
For all of these reasons, we find that the applicable zoning regulations and restrictions have
caused unnecessary hardship.
Vote:
Ayes—Rosen, King, DeRosa,Jung,Vignaux
Variance approved unanimously
The Board discussed the need to appoint a new Vice Chair. They decided to wait until Ms.
Decker was present to determine her interest.
Meeting adjourned at 8:30 p.m.
Submitted by,
Deb DeAhist_me, Town Clerk
Draft
TOWN OF ITHACA
AFFIDAVIT OF POSTING AND PUBLICATION
I, Lori Kofoid, being duly sworn, say that I am the Deputy Town Clerk of the Town of Ithaca,
Tompkins County, New York that the following notice has been duly posted on the sign board of
the Town Clerk of the Town of Ithaca and the notice has been duly published in the official
newspaper, Ithaca Journal:
O ADVERTISEMENT
O NOTICE OF PUBLIC HEARINGS
Location of Sign Board Used for Posting: To ;
Town Clerk's Office 1i
215 North Tioga Street
Ithaca, NY 14850
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Date of Posting: Wednesday August 6, 2014 �,����,�����,��,�
Date of Publication: Friday August 8, 2014oncfay
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Sworn 17413 to and subscribed before me this � '--~ day of d�retl An�eet5��„� ,
2014
Not _Public '
Debre DeAugi tine
Notary Public-State of New York
No.01 DE6145035
Qualified in Tompkins County
My Commission Expires June 19,20
AFFIDAVIT OF SERVICE BY MAIL
STATE OF NEW YORK ) SS.:
COUNTY OF TOMPKINS )
1, Lori Kofoid,being duly sworn,deposes and says, that deponent is not a party to the actions,is over 21 years of age with a professional
address of 215 North Tioga Street,Ithaca,New York.
That on the 7th day of August,2014,deponent served the within Notice upon the property owners of the following Tax Parcel Numbers:
615 Five Mile Dr.,Tax Parcels 31.-2-30,Use Variance
Catholic Cemetery Assoc City of Ithaca Hull Family Trust
113 N. Geneva St 108 E. Green St 425 Floral Ave
Ithaca,NY 14850 Ithaca,NY 14850 Ithaca,NY 14850
IAL,Inc Charles McGurk and Louis&Martha Mobbs
PO Box 184 Nicole McGurk-Segers 272 Enfield Falls Rd
Ithaca,NY 60 Colegrove Rd Ithaca,NY 14850
Ithaca,NY 14850
Pennsylvania Lines LLC Dierk and Alice TerLouw
110 Franklin Rd SE 603 Five Mile Dr
Roanoke, VA 24042
By depositing same enclosed in a postpaid addressed wrapper,in a Post Office under the exclusive care and custody of the United States Post Office
Department within the State of New York.
Lori' ofoid'Deputy Towjnlerk'
Town of Ithaca It)
Sworn to before me this 7th Day of August 2014.
Notary Public
Debra DeAU91stine
Notary Public-State Of t4ew York
No.01 DE6148035
Oualified in Tompkins Courity
My Commission Expires June 19,20