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HomeMy WebLinkAboutZBA Minutes 1987-02-11 •i FILED [Date N OF ITHACA TOWN OF ITHACA ZONING BOARD OF APPEALS FEBRUARY 11 , 1987 A regular meeting of the Town of Ithaca Zoning Board of Appeals was held on February 11 , 1987 in the Ithaca Town Hall , 126 East Seneca Street , Ithaca , New York , PRESENT : Chairman Henry Aron , Edward Austen , Edward King , Joan Reuning , Town Planner Susan Beeners , Building Inspector Andrew Frost , and Town Attorney John C . Barney . ALSO PRESENT : Richard Lauterwasser , Linda Gibbs , Jerry Tao , Martin A . Luster , Elizabeth B . Mayer , J . W . Mayer , Deborah F . Dietrich , Ed Stout , Larry Magnosi , Donald Ball , Gary J . Provost , Janice Cornish , Dean Ross . The public meeting opened at 7 : 00 p . m . Chairman Aron stated that all posting and publication of the public hearing had been completed and that proper affidavits of same were in order . The first matter on the agenda was the following : ADJOURNED APPEAL ( from January 14 , 1987 ) of Richard • Lauterwasser , Appellant , from the decision of the Building Inspector / Zoning Enforcement Officer denying a Building Permit for the construction of a dwelling unit in a garage structure at 247 DuBois Road , Town of Ithaca Tax Parcel No . 6 - 22 - 2 - 1 . 31 , Residence District R - 30 . Permit is denied under Article V , Section 18 , and Article XIV , Sections 74 and 75 , of the Town of Ithaca Zoning Ordinance , Chairman Aron declared the Zoning Board of Appeals as the lead agency in this matter . Martin A . Luster , attorney representing Richard Lauterwasser and Linda Gibbs , addressed the Board . Mr . Luster presented a memorandum to the Board which is attached hereto as Exhibit 1 . He further presented photographs to the Board showing the two structures , one a house and the other a detached garage . Mr . Luster explained that both structures use common utilities , common private sewer , a walkway , a common landscaping scheme , common driveway and parking area , and common water supply . Mr . Luster added that for all intents and purposes the two structures form a single structural complex . He went on to state that together the structures form a two family dwelling within the meaning of the zoning ordinance and fully complies with the specific provisions of Section 18 , subdivision 2 . Mr . Luster further stated that if the second garage - apartment structure is • considered to be a second principal structure , such use is clearly permitted , subject to the area requirements of the '! ordinance . He said that in this case , although the area 1 • 2 requirements concerning a second principal structure may not be met , a variance in that regard should be granted . Mr . Luster continued that if the garage - apartment structure is neither part of a two family dwelling nor a second principal structure , it must be an " accessory building " as defined in Article V , Section 20 . If the Board should determine that the garage - apartment building is an accessory building other than a garage , then what will be required for lawful use is simply an area variance to allow this structure to remain in other than the rear yard of the premises . Mr . Luster continued that if the second building was determined to be a second principal building on the lot , then the ordinance would require an 80 foot distance between these two structures . To separate the two structures by 80 feet would destroy the entire scheme of commonality and would make it difficult to continue the joint usage of utilities , water , etc . Mr . Luster also stated that to require replacement of the second structure to the rear of the home would create .further difficulties as it would involve extensive fill in the back of the home and would disrupt the scenic view . r Mr . Lauterwasser then commented on the physical problems of • Ms . Gibbs referring to two medical statements attached to the report of Mr . Luster , which reports are attached to Exhibit 1 referred to above . Mr . Lauterwasser stated that Ms . Gibbs has numerous allergies which make it impossible for her to live in an environment which is filled with common substances and that he had to build the house free of all those substances . He explained that they bought the land and built an apartment: in the building now known as the garage structure while they were constructing the house . Susan Beeners inquired as to whether they could have lived in a section of the house while the house was being built and Mr . Lauterwasser responded that Ms . Gibbs cannot live in any kind of environment while construction is going on and indeed in the past this had contributed to her illness when they had lived in areas where she became allergic to the environment . The public meeting was opened . Deborah Dietrich of 221 DuBois Road addressed the Board explaining that she was appearing for herself , her husband and her mother who lived in the properties immediately surrounding the property in question . She stated that they had no objection to the rental of the apartment in the garage and that one more person living on six acres of land could be accommodated . She further stated that she had spoken to several neighbors and they were supportive and in favor of the granting of the variance to Richard and Linda . • 3 Donald Ball of 244 DuBois Road said that he had lived in the area for approximately 35 years and because of the fine character of Richard and Linda he felt that it would be no problem for them to rent the garage as a dwelling unit . He felt that the structure was of good design and was not detrimental in any way to the neighborhood . He commended the Board for denying the permit because he felt that all cases needed to be reviewed and the facts brought to the attention of the public before a decision was made but that he was fully in favor of this case . No one else from the appeared on this matter and the public hearing was closed .. Chairman Aron stated that if the garage were to be used solely as a garage there would be no need for an appeal but because there was an apartment in the garage that the owners were desirous of renting as a dwelling unit this was the need for the appeal . Edward Austen said that he had seen the property and felt that it was unique and that construction of same was probably very expensive . • Chairman Aron inquired what the distance was from the corner of the house to the corner of the garage and Mr . Lauterwasser responded that it was 25 feet . Chairman Aron then read from the recommendation of Susan Beeners , Town Planner , " PART III , Lead Agency : Town of Ithaca Zoning Board of Appeals , Reviewer : Susan C . Beeners , Town Planner , Review Date : January 12 , 1987 . " A copy of such portion of the recommendation is attached hereto as Exhibit 2 . After further discussion a motion was made as to the environment assessment by Joan Reuning as follows : It is moved that this Board grant a negative declaration of environmental assessment . Edward Austen seconded the motion . The voting was as follows : Aye - Reuning , Aron , King , Austen Nay - None The motion was carried . • The granting of the variance was then discussed . Chairman Aron then asked if the apartment was one or two • 4 stories and Mr . Lauterwasser responded that it was one story with a loft area . Chairman Aron inquired if the downstairs was one big room and Mr . Lauterwasser responded that it was with the bedroom being in the loft area . Edward King asked what the square footage of the building was and Mr . Lauterwasser answered that it was 16 x 16 feel: on the first floor and 16 x 9 feet in the loft area . Andrew Frost interjected that even if a variance were granted for the garage to be used as a dwelling unit there were still some things that needed to be brought to code . He also added that when the Lauterwassers had applied for a building permit to build their home they assumed that the building of the apartment in the garage was included in the permit . Edward King asked what the requirements were for square footage for the dwelling unit and Mr . Frost replied that it was 600 feet and that at present there was approximately 400 square feet . Mr . Frost felt that there was a partition wall that could be moved to allow more space and also the loft could be expanded to add more footage . After further discussion it was moved by Joan Reuning as • follows : WHEREAS , this Board finds that from an income standpoint and because of the physical difficulties of Linda Gibbs , extra income is needed to defray the expenses of constructing a home to allow Ms . Gibbs to live in free of allergic reactions , and WHEREAS , no one from the surrounding properties appeared in opposition to this appeal and indeed several neighbors had appeared in favor of this appeal , it is RESOLVED , that this Board grant a variance permitting the construction of an apartment in the garage at 247 DuBois Road to be used as a rental unit with the condition that the structure be brought into compliance with the building code and that Mr . Frost oversee the issuance of a building permit , and further that the structure would not be required to meet the 600 foot minimum building area requirement . Edward Austen seconded the motion . The voting was as follows : Aye - Reuning , Aron , Austen , King • Nay - None The motion was carried . r • 5 The next item on the agenda was as follows : ADJOURNED APPEAL ( from January 14 , 1987 ) of Janice A . Cornish , Appellant , from the decision of 'the Building Inspector / Zoning Enforcement Officer denying Building Permits for the construction of a second dwelling unit in each of two existing non - conforming dwelling structures at 509 Five Mile Drive , Town of Ithaca Tax Parcel No . 6 - 31 - 2 . 32 , Residence District R - 15 . Permit is denied under Article XII , Section 54 , and Article XIV , Section 75 , of the Town of Ithaca Zoning Ordinance , Chairman Aron stated that the reason this appeal was adjourned was to give the members of the Board a chance to view the premises in question . He then read from the recommendation of Susan Beeners , Town Planner ,, " PART III , Lead Agency : Town of Ithaca Zoning Board -of Appeals , Reviewer : Susan C . Beeners , Town Planner , Review Date : January 14 , 1987 . " A copy of such portion of the recommendation is attached hereto as Exhibit 3 . Chairman Aron then inquired if Ms . Cornish was adding on to any structure and Ms . Cornish responded that there were to be no structural changes but merely some renovations on the inside of • the house . Chairman Aron inquired if Ms . Cornish occupied building 1 and she responded that she did , that she lived there with her daughter and friend , Mr . Provost . She added that building 2 was now occupied as a rental unit by one person . Chairman Aron then asked Ms . Cornish to refresh his memory as to what she wished to do with the units . She stated that in unit 1 where she now lives she wished to add an apartment upstairs . Mr . Provost who would be doing the renovating stated that as of now the upstairs consisted of a bedroom approximately 16 feet wide and 22 feet long which would be converted into a efficiency living area with one bedroom . That would be the extent of the renovations in unit 1 . In unit 2 there is an open storage building on the second floor which is the same square footage as the bottom apartment , 30 x 24 feet , which would be made into an efficiency apartment with one bedroom . Chairman Aron inquired as to why Ms . Cornish wished to make these additional apartments and she responded that it was for financial reasons , that she looked forward to retiring in about seven years and wished the additional income for that time . Chairman Aron opened the meeting to the public and there was no one who appeared for or against the matter . • He then invited discussion from the Board . Edward King asked if unit 2 was a barn at one time and Ms . • 6 Cornish responded that it was but that it had already been converted to living quarters at the time she bought the property . Mr . King asked how long she had owned the property and she responded that she had owned it for ten years . Mr . King stated that he was impressed with the size of the lot and the fact that there were no other dwellings immediately adjacent to the property . He went on to say that the absence of any neighbors speaking on the subject would indicate that no one seems threatened by this proposal . Mr . Austen asked if there was be any exterior work done on the property and Mr . Provost responded that only windows would be replaced . Mr . Provost added that an outside stairway would be added so that the tenants would have their own private entrance and exit . Mr . King referred to Ms . Beeners ' s recommendation that stated that the proposal would drastically increase the dwelling density for this area and questioned whether this was a non - conforming use . Mr . King added that he thought that at the first meeting it was determined that this property had existed before the zoning ordinance was written . Mr . Frost interjected that the basis for the denial was that it was a non - conforming use . The Board members wondered when the barn had been converted to living quarters in unit 2 and it was determined that it was prior to 1954 although the actual date could not be pinpointed . It was also determined that this area was rezoned to R15 having been an R9 zone . Chairman Aron called for a motion on the environmental assessment . Chairman Aron asked Ms . Beeners to explain how she had come to the conclusion that she had in Part III of her recommendation . Ms . Beeners stated that it was based on the types and extent of non - conformance that she presumed was the basis for the denial . She saw a doubling of dwelling units on the property for which she did not see any evidence of hardship . She asked Ms . Cornish if she had considered the possibility of upgrading both houses to increase her income so that unit 2 could be rented to a large family . Ms . Cornish responded that it would not be feasible . Mr . Provost said that that would not increase the income by adding another bedroom to an already existing apartment as you would have the same amount of people in the building for a smaller amount of money . Chairman Aron said that he was not . convinced that there was • hardship and since it was not a variance that was being requested but a special permit that hardship might not even be a consideration . Attorney Barney interjected that he thought that • 7 in fact a variance might be necessary because not only was a non - conforming use being enlarged but also because the property was going from two dwelling units to four dwelling units . Chairman Aron repeated that he was not convinced that there was hardship and asked Ms . Cornish again why she thought she would be suffering hardship . Ms . Cornish responded by saying that she would like to retire in several years and would still like to be able to do things that everyone would like to do to maintain her standard of living , and if she did not have these added rental units she would not be ° able to do that since she was a single parent and had raised two children and had not been able to put much money aside for retirement . Chairman Aron said there were two matters in question . First was the matter of hardship , and secondly , the increase in density of the property . Ms . Cornish addressed the matter of the density of the property by saying that according to the zoning ordinanca she could rent her upstairs to two additional people and what she was asking was to have people not inher home but in their own separate apartment . Mr . Frost said that he had no doubt that this was a non - conforming use of a residence built prior to 1954 but he was confused as to the term " legal non - conforming use " and " non - conforming use " and thus wondered when the barn actually became a residence . No record that he had showed that and Ms . Cornish did not know either . Ms . Cornish stated that the man she had bought the property from lived in unit 2 for years and rented unit 1 in which she now lives .. Mr . King asked who she had purchased the property from and she replied that it was from a Foster Bossard . Mr . King had some concern as he sympathized with the applicant but also concurred with Ms . Beeners recommendation as to the environmental assessment . Mr . Provost felt that there were a number of properties along Five Mile Drive that were in violation of the ordinance and Chairman Aron responded that these were not in question but only Ms . Cornish ' s property was in question at the moment . Attorney Barney reminded the Board , as a point of information , that at present there was a case in Court involving the Town regarding Mr . Hull where the Court would decide whether or not Mr . Hull is operating within the legality of the ordinance . • Susan Beeners responded to Ms . Cornish ' s claim that it would not change the number of people on the premises ' by saying that it J was not the number of occupants in question but the number of dwelling units on the premises . Attorney Barney also stated that there was no control in the future as to whether the apartments would continue to be occupied by only one person as there is no law that you can ' t have three people in a one bedroom apartment . Mr . Frost said that they would also need health department approval for conversion of the property . Chairman Aron stated that a variance stays with the property and if the property is sold there is no control over what the new owners would do with it . Ms . Cornish said that she had no plans to sell the property . Mr . Provost asked if it could be a restricted variance or a variance that would limit the amount of people in the dwellings . Chairman Aron asked Attorney Barney if a special approval could be considered limiting the number of people in the dwellings so if the property is sold that approval is terminated . Attorney Barney said that this discussion had been had before and he did not think the special approval was terminated when the • property was sold . Susan Beeners asked Ms . Cornish if she had considered buying an additional 40 feet from Mr . Shippos so the property could be subdivided and Ms . Cornish responded that she had but had been unsuccessful . Mr . Provost then said that if the Board could not see its way clear to granting approval for two additional units to be built in each of the existing units 1 and 2 that maybe they would consider just adding another apartment to unit 2 . After further discussion a motion was made as to the environment assessment by Edward King as follows : This Board finds a negative declaration of environmental impact on the condition that it is considering only increasing the density in unit 2 in view of the fact that there are over two acres of land and there are no other dwellings on the side of the road on which this property is located . Joan Reuning seconded the motion . The voting was as follows : • Aye - Reuning , King , Austen , Aron Nay - None t • 9 The motion was carried . As to the special approval , a motion was made by Edward Austen as follows . WHEREAS , the Board finds the following : ( a ) The health , safety , morals and general welfare of the community in harmony with the general purpose of this ordinance shall be promoted , except that as to all public buildings and educational buildings wherein the principle use is research , administration , or instruction , the same shall be presumed to exist . ( b ) The premises are reasonably adapted to the proposed use , and that such use , except as to public and educational buildings , will fill a neighborhood or community need . ( c ) The proposed use and the location and design of any structure shall be consistent with the character of the district in which it is located . ( d ) The proposed use shall not be detrimental. to the • general amenity or neighborhood character in amounts sufficient to devaluate neighboring property or seriously inconvenience neighboring inhabitants . ( e ) The proposed access and egress for all structures and uses shall be safely designed . ( f ) The general effect of the proposed use upon the community as a whole , including such items as traffic load upon public streets and load upon water and sewerage systems is not detrimental to the health , safety ad general welfare of the community , and WHEREAS , no one appeared in opposition to the proposal , it is RESOLVED , that this Board grant special approval for a second dwelling unit in unit No . 2 with the provision that it meets with the requirements of the building code as outlined by the zoning officer and that there be parking provided off the highway for necessary vehicles without adding to any parking situation on the highway . Edward King seconded the motion . • The voting was as follows : Aye - Reuning , Aron , King , Austen • 10 Nay - None The motion was carried . The next item on the agenda was the following . ADJOURNED APPEAL ( from January 14 , 1987 ) of Edward J . Stout , Appellant , from the decision of the Building Inspector / Zoning Enforcement Officer , denying permission to operate a taxi business at 1156 Danby Road , Town of Ithaca Tax Parcel No . 6 - 36 - 1 - 5 , Residence District R - 30 . Permission is denied under Article V , Sections 18 and 19 , of the Town of Ithaca Zoning Ordinance , Chairman Aron stated that the reason this appeal was adjourned was to give the Board members a chance to view the premises in question . Chairman Aron read a letter from Inta Ezergailis dated February 6 , 1987 , a copy of which letter is attached hereto as Exhibit 4 . Such letter indicated that the situation had improved greatly . Chairman Aron asked if there was anyone from the public who • wished to speak . There was no one and the public hearing was closed . Chairman Aron inquired if all vehicles had been removed from the property and Mr . Stout responded that they had and only his own car remained . Mr . Stout added that once in a while a taxicab needed to have a light repaired or some other minor repair and that was the only time another taxicab would be on the premises and if they did appear it would be for a very short time ,, Chairman Aron asked how the dispatching was done and Mr . Stout responded that it was by telephone and base radio in the office located in the garage on Danby Road . Mr . Stout added that the taxicabs are contacted by two -way radio . Chairman Aron read from " PART III , Lead Agency : Town of Ithaca Zoning Board of Appeals , Reviewer : Susan C . Beeners , Town Planner , Review Date : January 7 , 1987 " . A copy of such portion of the recommendation is attached hereto as Exhibit 5 . Chairman Aron asked Mr . Stout if he understood that there were to be no vehicles parked on the highway and Mr . Stout responded that he did . Edward King stated that it seemed this could be considered a • customary home occupation as long as the noise level were kept down and the number of vehicles on the property was not in violation . He further stated that if the use is limited it could c 1 • 11 be a customary home occupation . As to the environmental assessment a motion was made by Edward King as follows : This Board makes a negative declaration as to environmental impact according to the recommendations made by the reviewer , subject to the following conditions : 1 . The business is to be limited to phone dispatching of taxis . No taxis , aside from the one which might be driven home by the owner of the business , are to be stored at or operated from 1156 Danby Road . The taxis are to be operated out of a different location , where such operation is permitted . 2 . All vehicles are to be removed from the rear yard as soon as weather permits such removal . 3 . No vehicles are to be parked on Danby Road . Joan Reuning seconded the motion . The voting was as follows : • Aye - Aron , King , Austen , Reuning Nay - None The motion was carried . Mr . Frost inquired whether there would be any storage of gasoline or welding materials on the premises and Mr . Stout responded that there were not be . Attorney Barney brought up the matter of a letter from the Department of Transportation indicating that "No portion of the state highway right - of -way - may be used for conducting business including the parking of vehicles , etc . " A copy of such letter is attached hereto as Exhibit 6 . Attorney Barney wondered whether the motion previously made should be modified . Chairman Aron asked if the Department of Transportation . had determined how far the State highway right of way goes and Attorney Barney responded he was sure that they could if asked . Attorney Barney added that he was inclined to agree with their statement that under the law you cannot operate in a highway right of way and if the Board was granting a negative declaration of environmental impact it should be granted conditional upon that same compliance with the law . Mr . King interjected that the motion states that no vehicles are to be parked on Danby Road . Attorney Barney felt • it should be expanded to include the highway right of way . Mr . King did not agree and did not think the Board should get into the question of where the state right of way is . Attorney Barney • 12 asked if the Board was saying no parking on the road did they mean the pavement and Mr . King responded that most: people consider the road as the shoulder of the road . Chairman Aron felt that it would have been good if the author of the letter was present so questions could have been asked of him such as how far the right of way went because if the garage is on the highway right of way , according to this letter Mr . Stout could not operate a business . Chairman Aron continued that the Board did not have the answer as to whether or not the garage is on the right of way line . Attorney Barney stated that the Board did not need to make that determination and felt that it was up to Mr . Stout to work that matter out with the Department of Transportation , Attorney Barney added that th e Board should not grant a variance to permit something that the State says you cannot do . However , Mr . Barney stated that he was only suggesting this course of action but it was the Board ' s decision as to what should be done but he felt that the resolution should adopt the language suggested in the letter from the Department of Transportation . Edward King felt that the garage was probably in the state right of way line but he did not think it was the Board ' s problem to enforce the state ' s ruling on the use of their right of ways . He felt , however , that the Board could condition their findings on what they regard as a safety factor and not park cars on the obvious part of the highways . Attorney Barney felt that the Board should not consent to something in violation of the state law . Chairman Aron asked Mr . Stout if he operated his business out of his home or the garage and Mr . Stout responded that he operated it out of the garage . Discussion on the special approval was held and Chairman Aron inquired of Mr . Stout if there were any inflammable materials stored on the premises or any welding done or gasoline stored on the premises and Mr . Stout responded in the negative . Chairman Aron asked if there were any employees on the premises in the normal course of operation of the business and Mr . Stout responded that there were none , that it was a one - man operation . As to the special approval on this matter a motion was made- by Edward King as follows : RESOLVED , that this Board finds that if the applicant will conduct the operation of dispatching taxicabs from the the site in accordance with the conditions which were attached to the environmental assessment finding , and • provided that the building from which he is operating from is not used primarily for the maintenance or repair of vehicles other than minor repairs to the extent indicated , i 13 • then this Board finds this to be a customary home occupation within the meaning of Section 19 , subdivision 2 of the zoning ordinance of the Town of Ithaca and such use would be permitted , but that if the use changes and the intensity in use changes or the number of vehicles on the property increases the Board would regard this as not a home occupation and would then require the termination of such operation . Joan Reuning seconded the motion . The voting was as follows : Aye - Aron , Reuning , Austen , King Nay - None The motion was carried . The last item on the agenda was the following : APPEAL of The Mayer School , Appellant , Elizabeth B . Mayer , Agent , from the decision of the Building Inspector / Zoning Enforcement Officer , denying permission for the expansion of • an existing private school to the second and third floors in the Grand Lodge of the former I . O . O . F . building at 1 251 Trumansburg Road , Town of Ithaca Tax Parcel No . 6 - 24 - 3 - 3 . 2 , Residence District R - 30 . Permission is denied under Article V , Section 18 , paragraph 4 , of the Town of Ithaca Zoning Ordinance whereby Special Approval of the Zoning Board of Appeals is required . Mr . James Mayer addressed the board . Mr . Mayer stated that at this point the school now had 71 students and they desired to use the second floor to house increased enrollment for the next academic year . He continued that they would like to include classrooms on the second floor as they anticipated increased enrollment to 120 . They would add one classroom on the first floor and the second floor might have four classrooms . Mr . Frost asked if the second floor complied with health and safety requirements . Mr . Frost said that it had a sprinkling system but that there was a slight problem with the fresh air return being located near the sprinkler controls and there had been some problem with freezing of that system because of cold &i r . Mr . Frost continued by saying that right now a piece of board goes along the bottom of the vent where the cold air is coming from but he thought that was only . a temporary setup . Mr . Frost expressed concern as to the sprinklers freezing up . • Chairman Aron inquired if this problem could be remedied . Mr . Mayer responded that they are still leasing the building i • 14 from Cornell and he did not think it would be a problem to remedy and that they would be working closely with Mr . Frost to make some changes . Chairman Aron inquired if there were people living on the third floor now and was it equipped with bathrooms and kitchens . Mr . Mayer said that it was their hope is with a minimum of changes to make it possible for a caretaker or teacher to live on the third floor so someone is in the building on weekends and during vacation periods . He continued that the third floor had been used by Cornell University in the past for students . Mr . Mayer further stated that what they planned to do is put two apartments on the third floor and added that again they would be discussing the plans for this with Mr . Frost . Edward Austen asked if there was one person living there now and Mr . Mayer responded that no one is living in the third floor now . However , he continued , in bad weather his son or perhaps one of the teachers might stay in one of the rooms on the second floor . At this point Chairman Aron commended Mr . and Mrs . Mayer for the orderly way the school was being conducted and said that he was very impressed by the discipline used in ingress and egress • of traffic . He further stated that the grounds are kept up beautifully and that as a whole the school was a welcome addition to the community . A motion was made as follows by Edward Austen as follows : RESOLVED , that this Board grants special approval to the operation of the Mayer School to include classroom area on the second floor of the building and to allow up to two dwelling units on the third floor with all plans to be in compliance with building code requirements . The motion was seconded by Joan Reuning . The voting was as follows : Aye - Aron , Reuning , King , Austen Nay - None The motion was carried . There being no further business , the meeting was adjourned at 9 : 15 p . m . • Beatrice Lincoln Recording Secretary • 15 Exhibits 1 through 6 attached Approved Henry Aron Chairman , Zoning Board of Appeals • • IN THE MATTER OF THE APPEAL OF RICHARD LAUTERWASSER Appellant ' s Memorandum • Preliminary Statement o$ . This memorandum is submitted in support of the appeal of Richard Lauterwasser from a decision of the zoning enforcement officer. denying a building permit for the construction of a �dwelling unit in a. . garage structure at 247 Dubois Road , Town of Ithaca . The, permit was denied r under Article V , Section 18 , and Article XIV , Sections 74 and 75 of the Town of Ithaca Zoning Ordinance . ; FACTS . Appellant is the owner of a parcel of land located on the , ,'.. east side of Dubois Road containing approximately six acres. Appellant has constructed a home on the lot ( in .full compliance with the zoning ordinance ) ' and a garage building located approximately 25 feet to the north of the house . Appellant wishes to " create .a small apartment in the rear of the garage structure . The building permit application for the creation of the apartment was denied by the zoning officer citing ` :: • Article V , Section 18 ' of the Zoning Ordinance . It is respectfully " submitted that the proposed construction of the apartment is in full compliance with the zoning law and requires no variance . Alternatively , .•, : it is submitted an " area " variance and not a " use " varianceis requi;W, Accordingly , the standard to be applied in this case is whether or not . practical difficulties require the issuance of the variance . The Building Permit For Construction Of The Apartment In the - Garage Structure Should Have Been Granted . In denying the building permit application , the zoning officer refers to Article V , Section 18 of the Town Zoning Ordinance . Section 18 allows as permissible uses in an R30 Zone one family dwellings and two family ' dwellings . A " two family " dwelling is defined in Article I , Section 1 of the Ordinance as a " detached building containing two dwelling ' units . . . A visual inspection of the subject premises will reveal that the two structures located on the subject parcel , although physically • separate from each other , are joined by common utilities , common private sewer , a walk way , a common landscaping scheme , common design of the structures , common driveway and- parking area , common water supply and , for all intents and purposes forma single structural complex . Together .. Exh ib it 1 - 1- P a. • it the structures form a two family dwelling within the.; ineaning of the zoning ordinance and . fully complies . with the specific provisions . of o Section 18 , subdivision 2 . t .r. Had the Appellant constructed a permanent covered walk way between ,the lo L two structures , there would be no question as to the unity. of this housing complex . It is suggested that the absence of such an enclosure does not change the essential character of this house-apartment so as to convert olo. ot. oto 4 I. what is in fact and in substance a two family . dwelling into two one . family dwellings . ; Furthermore , even if the zoning officer is correct' , in his . apparent determination that this common complex does not create a two family _, dwelling , it should be pointed out that nowhere does the ordinance prohibit , i more than one family dwelling on a suitable lot , In fact , Article XIII , -• ' Section 68 specifically provides for area requirements ' ;when there is more than one principal building on a lot . . . . . " Accordingly , if the 4. t garage- apartment structure is considered to be a . second principal structure , • such use is clearly permitted , subject to the area requirements of the ordinance . In this case , although the area requirements concerning a d 11 second principal structure may not be met , a variance in that regard should be granted . See subsequent discussion . Thirdly , if the garage- apartment structure is neither ,part of a - two family dwelling , . nor a second princpal structure , it must. be an too . .;: " accessory building " as defined in Article V , Section 20 . If the garage apartment is a• "garage " as that term is used in Section 20 , it can occupy . ' any open space on the lot subject to the other restrictions of Section 20 . Surely this structure is primarily a garage as it is used to house vehic'les ' ' and implements commonly found in home garages . The creation of a small apartment in the rear of that structure does not change its essential nature . Nevertheless , if the Board should determine that the garage- '"ti ` apartment building is an accessory building other than a garage , then what will be required for lawful use • is simply an area variance to ellallow this structure to remain in other than the rear yard of the premises . Thus ; the Zoning Board must initially determine the necessity for any r • type of variance in this matter . If the Board decides that the garage- apartment is a part of a two family dwelling , such use is lawful , no relief from the Zoning Ordinance is needed and the appeal herein should be granted . If the Board determines that the garage-apartment building It is a second principal . building on the lot , it should then go on to determine if the area requirements of Section 68 have been complied61 Ito a . with . If that determination is negative , the Board should then con sider whether practical difficulties exist so as to grant an area . , . - variance rea variance with regard to those specifications . On the other hand , . if : . ro,N, the Board determines that the garage- apartment structure - is not a ' second principal building , but is an accessory building as defined in Section 20 , it must determine if it is a " garage " or some other type of accessory building . If the Board determines that . the :structLire is a " garage " then no relief from the ordinance is required as the structure is in full compliance with the ordinance . However , if the Board decides . 6 Ll ? that the subject structure is an accessory building other than agarage , it should then consider and grant an application for a variance from the. . 1t area and position requiements set forth in Section 20 , if the Board feels 4 ° that such a variance is in fact required . . . If A Variance Is Required , It Is In The Nature Of An "Area " Variance And Not . A • "Use " Variance . F Traditionally , zoning boards of appeal have been asked to determine 4 two different types of requests for variances from ' the strict letter of zoning regulations . In one case , the applicant . seeks to make a use of the land that is prohibited by the zoning ordinance . in such cases , it 4 4 '. has been held that the applicant must show undue hardship resulting from the strict enforcement of the zoning ordinance and that such hardship is 4 .tt .; " economic in nature and prevents the owner from enjoying a reasonably economic use of his land . In the other type of application , the owner seeks relief • from distance , side yard , front yard or rear yard requirements or similar area and position regulations . It is respectfully submtited , that in the present case , all that is needed , if anything , is an area variance . In such cases , the standard generally applied by the courts ' r is whether "practical difficulties " exist that prohibit full compliance with the ordinance . a : In the present situation , an area variance will be required if the Board determines that the garage-apartment structure is a second princpal building on the .lot or if it decides that it is an accessory building other than a garage . If it is determined that the building .is a second principal building on the lot , Section 68 requires that the space between A such buildings must be at least equal to the gum ofrthe side 'yards r. required by such buildings or the sum of the rear . and front yards as the case may be . Section 21 provides for side - yards of not less than s ; 40 feet in width . Presumably , the strict letter of the ordinance would require an 80 foot distance between these two structures under the current t + circumstances. It is respectfully submitted that practical difficulties preclude such a distance . The structures are united. in design , P common sewer , common utilities , . common waterline , a permanent cement walk and common landscaping . To separate the two structures by 80 feet would . destroy the entire scheme of . commonality envisoned by the designers and owners . It would make practically difficult the establishment of two : , separate sewer systems , two separate water supply systems • and : two sets _ of utility lines . Furthermore , as the subject structure .is used as : a garage for the owner , it would establish an 80 foot distance between the , home and the garage which obviously creates practical difficulties in terms of access and convenience . . • If the . Board decides that the subject structure is an accessory r • building other than a garage , it would appear that such structure is occupying space other than a rear yard . . Thus , an . area varianice from the provisions of Section 20 would be required . To require replacement of the second structure to the " rear " of the home creates further practical difficulties . It would require extension of utility lines , ` extensive filling of the area to the rear of the home so as to provide a level and uniform base for the structures , create an unattractive geometric arrangement of the structures , require a longer driveway and. . Id an inconvenient location in which the owners could locate . their auto- mobile , disrupt the scenic view from the home which was a prime con- ' sideration in the value paid for the premises and otherwise destroy a comprehensive and attractive plan for reasonable use of the subject . premises . Furthermore , the owners were prevented from creating a second ..dwelling unit in the main structure by reason of the health difficulties of the ' appellant ' s wife . See material submitted herewith , Accordingly , • the • garage could not have been connected to the house - and the arrangement sought is both reasonable , overcomes the foregoing practical difficulties and takes into account Ms . Gibbs ' health problems . There is no substantial objection from any resident in .'the areas there is no proposed abuse or overuse of the land _ in terms . of noise , traffic, fumes , vibrations or other matters which might adversely affect neighbors and there has been a negative declaration of environmental impact . For all of . the foreoing reasons , it is , respectfully submitted i that the appeal herein be granted in . all respects , . or , in the al °• ternative , that appropriate area variances be granted to permit the proposed construction as set forth in • the . application . Respectfully. submitted . LUSTER , SALK , & HENRY Attorney for Appellant 1. n ' S WESTPORTOCLINIC ' f-'or (yulrIticin and I'.revenl 'ive 'Meciicinnt >;) 1p • A February 52 1987. R To Whom It May Concern : Re * Linda Gibbs Linda Gibbs is a patient in - our office since . the summer of 1985 for the management and treatment of. multiple' -: allergies and chemical sensitivities , which were an ongoing problem at that time . Ms . Gibbs has a wide range of environmental sensitivities which include foods , . molds , ': u dust , pollens and petrochemicals , which cause disabling , symptoms , i . e , neuromuscular weakness , muscle spasm , extreme fatigue and inability to concentrate . Exposure to even small amounts of these allergens can cause disabling symptoms , . I • It was our recommendation that Ms . Gibbs' . home be as allergy- free as possible . In the construction of . her new home , the allergens should be minimal and therefore it was recommended that the garage be set apart from the house , I since exposure to auto exhaust and other petrochemicals would be detrimental to the treatment of her sensitivities . Pt Ms . Gibbs has a history of multiple allergies and CNS allergies which have been severely debilitating , restricting both work and social activities . This patient must be confined to a controlled home environment and is totally p unable to engage in any work or outside activities at present , i If you have any further questions , please contact our office . Id Sincerely , Thomas Brunoski , M . 'D . TB / jt • Thomas Brunoski , M . D . 830 Post Road East Lawrence Caprio , N . D . Westport , CT 06880 203 . 226. 4167 . .. j . . . r,*c+xa!-^r+^+-on^ata.n•-cm^c++•--.--.rn•vx+.•r-r.-.,.....-:...,-..-.-.•...-� -m.....�.�,_..__..r...___.� JAMES M . MILLER, M.D, F:. 40 FRONT STREET ' BINGHAMTON. NEW YORK 13905 u.• . TELEPHONE (607) 722-0957 t ' MEMBER - ENVIRONMENTAL MEDICINE AMERICAN ACADEMY OF ENVIROMENTAL MEDICINE - - ALLERGY AMERICAN COLLEGE OF ALLERGISTS AMERICAN ASSOCIATION FOR CLINICAL . . . • - - IMMUNOLOGY AND ALLERGYp 11.41 - t, 4 / TA j ) i_ pe _yf; a f . . . f, _. in 4= I. � �' � J11 +"2 l•' 71 r1 da � � !'i T'i � ;'i `+ Crr — T� '= � ] _ .� E C 'ir lam. G +. o3 C , I a"i 1_ 1} ^r L '�i �''S i X11 { � ! = -: cr ic� = I_ _ _ - .! - - _ L • � atiiT7 t_ E '1: _ Va7riZ' .71 ? T, ... 3 . . 4 r2 � t 11 •_i! 1! �i � ' C , i Z � � 1 Y T' t� l'tFit _ C . . _ C � Lr1 7L' i : 3 ii tir r, T 'a 3 of LlE . 4 *i 3 - 3d! Dt_ E _ GuS! _ 'Zr � 'tt 3. L Sr 1 iit{1 `=r 'i: +.T 4'v 11 �-ees. r1 �••" _ ! ?T _ — . . � - _ :i , iii _' .. . c � � L� �r � = ii l. ilt3 �" }-i �1Tel. 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ZZ - - I 3_ILPo FIIoOI RICHARD LAUTERWASSER a LINDA GIBBS k` TO RICHARD LAUTERWASSER 6 LINDA GIBBS PART OF MIL . LOT 40 TOWN OF ITHACA I HEHEB� cilirt Y THAT' f« I ; MAP IS AN ACCU#IATE COUNTY OF TOMPK INS — STATE OF NFW YORK .I OFEAT ON OF AN ACTUAL SUHVEY MADE UNDER MY s ETVISIDN CF.RTI IFu nsOFi,2 . zy . BG SCALE IHS 100 FEET DATE WIEE 8 , 14 , 1984 L . 5 481054JON D. HAMPHT 1 A . tE RATION OI` THIS DOCUMENT EXCEPT BY A 1- ICFNSEU RTAosaknal Ln„Q S,vvgr°• 1 5 7 4 - 3 InAU SUFIVL 'fOR IS ILLEGAL CA.dHna . N.Y. 13045 FILE NO. ___ '3. 0000 pertinent code requirements are met , the proposal is regarded by the reviewer as consistent with local objectives of protecting the health , safety , and welfare of Town residents . No significant adverse impact is expected . C5 . ' Growth , subsequent development ; or relatedactivities likely to be induced by ' the proposed action ? Because of the circumstances described in the Appeal , the proposal is not expected to set a precedent for . any general future approval of more than two dwellings on one lot . As t proposal is consistent with the overall density permitted in R-'30 Districts , and is potentially compatible with R - 15 density , no significant ' adverse impact is expected on growth or subsequent development . C6 . Secondary , cumulative , or other effects not identified in Cl - C6 ? Not expected . C7 . * Achange in use of either quantity or type of energy ? Not expected . PART III A negative declaration of environmental significance is . recommended , conditional upon the granting of variances of Sections 18 , 68 , 74 , and 75 , upon the compliance of the dwellings with all pertinent code - requirements , and upon the provision of adequate parking for the garage apartment . This recommendation is based on the following reasons : 1 . Evidence of hardship based on health reasons . 2 . Practical difficulties of subdividing the two dwellings . 3 : Consistency of the proposal with the overall permitted density in R- 30 Residence Districts , and the potential compatibility of the proposal with the density permitted in R- 15 . 4 . Design of the buildings , and the low impact expected of any exterior alterations that might be necessary to meet code requirements or to provide adequate parking . Lead Agency : Town . of Ithaca Zoning Board of Appeals Reviewer : Susan Ce Beeners , Town Planner Review Date : January 12 1987 i • / ` Exhibit 2 C6 . Secondary , cumulative , or other effects not identified in CI - C6 ? As described above . C7 , . A change in use of either quantity or type of energy ? Not expected . PART III Because of the types and extent of nonconformance identifigd above and the potential for 'a higher residential density than is permitted , a positive declaration of environmental significance is recommended . Lead Agency : Town of Ithaca Zoning Board of Appeals . Reviewer : Susan C . Beeners , Town Planner Review Date : January 141 - 1987 M � �X • f Exhibit 3 s. • f': a,� +. PFR 19 " . '' ^ ilriIarXr 69 19R ^ J . n a : 11a c . GF 1 t c 1ACA.....t The foll, m-ung; is teally . a .mr= r: f, .° or, +. not; e to thE? (Ii Gicussi. on of �3r . stout ' snpPal fare a,r. PxA ! iT? ti on or rli ?1. nin _ a taxi servic^A frgm 1 ] 5A nanbv . Rei , Ater a, t + n, nr ino file hPa, ring . � i ^± e , I feel tF ) f� t I ha., ve J sno 'cPn y Piece . ^herefore , lPt mn :" Ist a:r? n somr� t `Cr a,nro -n !F o `' Ct comment by iI Frns at that, nrPvious mPPt, i_ nR . First_, IaowF% V r, I want o sav that the si- tllati. on s 1. r"nre) 1 er d _r. PA.tIv . There tire occas iona. Ily two taxis E. hPrP , arnrl vPry rrS fL. 1ir , . €� n � for P ` trPmel�y short nPri ac' s , w three . This . I . can Iiva with ° ti.nd 5i , n7; st; a ? the timP there is i.n — � Pe � � Vt �: +. � ;� nwn v , : : i. n1n ,in .i his cah , I c rta: . n ]. y o not onl. r _ r . t . � 1 t r? want, to o i. hble . m ; , e nnrQCArt• ati nn i- Q ; c, a f � nr or t;hP fll — turP = — t�) �. t , as . " 1r . Frost � ni. *it, nc' 01.1 +1 , . V-1p ' isnatc.h ofi. rp "11T(I . art, • as fI mFti .'"iPt incl 4, 11at , wit ?l fill, ; + ooa wi. I1 on " r . ci + olst ' � a. rt , th-c 51t ' 1atior, 0. () 111 17 � F? l ) Nck . S1 " cerply , Z; 7. nrcra111IS 115 ? � ,inhv Prl . • Exl i' it 4 44i /I J • Subject to the assumptions listed above , a phone dispatching. — business , with perhaps only one taxi on the premises driven by the owner / resident , would be similar to the manual / mechanica :l trades which are permitted as home occupations in Residence District R- 30 , and would cause no significant adverse impact ,. C5 . Growth , subsequent development , or related activities likely to be induced by the proposed action ?No significant adverse impact expected . Similar operations would be subject . to further review . 1 C6 . Secondary , cumulative , or other effects not identified in C1 - C6 ? Not expected . C7 . A change in use of either quantity or type of energy ? Not expected . PART III Subject to the assumptions described above , the phone dispatching business would . have no significant adverse impact . There would be no exterior effects out of character with ta neighborhood , and the business would be equivalent to certai n • home occupations which are permitted in the Zoning Ordinance . A negative declaration of environmental significance is recommended , subject to the following conditions : 1 . The business is to be limited to phone dispatching of taxis . No taxis , aside from the one which might be driven home by the owner of the business , are to be stored at or operated from 1156 Danby Road . The taxis are to be operated out of a different location , where such operation is permitted . 2 . All vehicles are to be removed from the rear yard as soon as weather permits such removal . 3 . No vehicles are to be parked on Danby Road . Lead Agency : Town of Ithaca Zoning Board of Appeals ��iivv11 Reviewer : Susan C . Beeners , Town Planner Review Date : January 71 1987 Exhibit 5 4�, - Ij Third St .. Ext . F Ithaca , {:Rf -14850 607 - 272 - 1471rr . January Ap 2987 Susan C . Eeeners Town Planner Town of Ithaca 12u Fast Sin-eca Stroe` Ithaca , 41Y 14850 Dear Is . Beenerse In reply to your January S , 2987 letter regarding appea :L of Fdward J . Stout we submit the folio:,ring . - • `. o portion of the state highs;=ay r1f zt- of- x ay , ;ay= be. use (I for coneluctinq business 1 = luc ing the parking of vehicles etc . sugr; est cliariging Part II , Ap 30 of th (? ^r3vironmental Gssess; nent ^h " ..lo vehicles -a � , 9 ... rto :.�•._ ?3url �c? Ci ` C} Cl )3f1}Jy oa, <7 � ' 9 to recar] " .'v0 vehicles aLrcA to 11..e parked with3. .-ii t to state highway ri ght - oz- -r.aay on fib Zoar) � 0 :i1 '?Cr' rely � . _regional Director of Transportation .Zenion 3 b-v —Z F .E _ E: ' ICK i7ROUT , P . L > aesldent Engineer Tompkins County CC : ;: . �'It����nerfQlt Exi�jil3it �� . "