Loading...
HomeMy WebLinkAboutZBA Minutes 1990-11-28 FILED TOWN OF ITHACA Date O Clerk -TOWN OF ITHACA t 4r LZ ZONING BOARD OF APPEALS NOVEMBER 28 , 1990 THE FOLLOWING ARE THE MATTERS THAT WERE HEARD ON NOVEMBER 28 , 1990 BY THE BOARD : APPEAL OF SAMIR HANNA , APPELLANT , REQUESTING VARIANCES FROM THE REQUIREMENTS OF ARTICLE . IV , SECTION 11 , PARAGRAPH 10 ( BUILDING HEIGHT ) , AND ARTICLE IV , SECTION 14 ( FRONT YARD BUILDING SET BACK ) , OF THE TOWN OF ITHACA ZONING ORDINANCE , FOR THE PROPOSED .CONSTRUCTION OF A SINGLE-FAMILY RESIDENCE TO BE LOCATED AT 8 WINNER ' S CIRCLE , TOWN OF ITHACA TAX PARCEL NO . 6 - 58 - 1 -8 . 4 , RESIDENCE DISTRICT R- 15 . THE RESIDENTIAL STRUCTURE PROPOSED HAS AN EXTERIOR BUILDING HEIGHT OF 32 FEET 9 . INCHES , 30 FEET BEING THE MAXIMUM HEIGHT PERMITTED , AND A FRONT YARD SET BACK OF 22 . 1 FEET , 25 FEET BEING REQUIRED . GRANTED WITH CONDITION . ADMINISTRATIVE HEARING ( ADJOURNED FROM OCTOBER 10 , AND NOVEMBER 14 , 1990 ) , UNDER ARTICLE XIV , SECTION 77 , OF THE TOWN OF ITHACA ZONING ORDINANCE , FOR AN INTERPRETATION BY ' THE BOARD OF APPEALS OF ARTICLE VII , SECTION 35 , OF SAID ORDINANCE TO DETERMINE IF ANY USES PERMITTED IN BUSINESS DISTRICTS "A" , " B " , AND " C " MAY BE PERMITTED IN A BUSINESS DISTRICT " D " , AND FURTHER , TO DETERMINE WHAT SALES/USES MAY BE CUSTOMARILY ENCOMPASSED WITHIN A GASOLINE SALES STATION . INTERPRETATION RENDERED . DISCUSSION : 1 . a . Proposed amendment to the Zoning Ordinance with respect to exempting subdivisions from the requirement to obtain fill permits ' under certain circumstances . RECOMMENDED . b . Proposed amendment to the Zoning Ordinance relating . to occupancy of mobile home park districts . RECOMMENDED . c . Proposed amendment to the Zoning Ordinance with respect to the amortization of certain non-conforming uses . NO ACTION TAKEN . 2 . Recommendation to the Town Board with . respect to the appointment of the Zoning Board of Appeals Chairperson for 1991 . Edward Austen . 3 . Election of the Zoning Board of Appeals Vice Chairperson for 1991 . Joan Reuning . FILED TOWN OF ITHACA Town of Ithaca Datec� �. i99 1 Zoning Board of Appeals Clerk November 28 , 1990 TOWN OF ITHACA ZONING BOARD OF APPEALS NOVEMBER 28 , 1990 PRESENT : Chairman Henry Aron , Robert Hines , Joan Reuning , Edward King , Zoning Enforcement Office/ Building Inspector Andrew Frost , Town Attorney John Barney . ABSENT : Edward Austen . OTHERS PRESENT : Samir Hanna , William McMinn , Dave Auble . Chairman Aron called the meeting to order at 7 : 10 p . m . and stated that all posting , publication and notification of the public hearing has been completed and that proper affidavits of same were in order . The Appeal on the Agenda was the following . APPEAL OF SAMIR HANNA , APPELLANT , REQUESTING VARIANCES FROM THE REQUIREMENTS OF ARTICLE IV , SECTION 11 , PARAGRAPH 10 ( BUILDING HEIGHT ) , AND ARTICLE IV , SECTION 14 ( FRONT YARD BUILDING SETBACK ) , OF THE TOWN OF ITHACA ZONING ORDINANCE , FOR THE PROPOSED CONSTRUCTION OF A SINGLE -FAMILY RESIDENCE TO BE LOCATED AT 8 WINNER ' S CIRCLE , TOWN OF ITHACA TAX PARCEL NO . 6 - 58 - 1 - 8 . 4 , RESIDENCE DISTRICT R- 15 , THE RESIDENTIAL STRUCTURE PROPOSED HAS AN EXTERIOR BUILDING HEIGHT OF 32 FEET 9 INCHES , 30 FEET BEING THE MAXIMUM HEIGHT PERMITTED , AND A FRONT YARD SET BACK OF 22 . 1 FEET , 25 FEET BEING REQUIRED . Mr . Samir Hanna appeared before the Board and presented a drawing of the proposed house . He explained the slopes that are involved on the property . Mr . Hanna stated that when they staked the property and started construction , the stakes were at a 25 feet setback for the intended location of the house . However , after the contractor dug the basement the fill material was found to be inadequate to carry the foundation of the house . Mr . Hanna said that at that time he hired consultants and engineers to look at the situation and they came to the same conclusion . Mr . Frost interjected that his office has proof of the problems with the soil for this construction project . Town of Ithaca 2 Zoning Board of Appeals November 28 , 1990 Mr . Hanna further stated that all the fill material was removed and replaced with compacted gravel ( engineered fill ) . He said that during that process the stakes were moved inadvertently from the original location and when the footers and the walls of the basement were poured , Mr . Baker , the surveyor , found that the proposed house was found to be in violation of the setback Article at two corners . Chairman Aron opened the public hearing . Mr . William McMinn , 1351 Slate.rville Road , owner of Tax Parcel 58 - 1 - 10 . 1 , explained to the Board that he is concerned about the proposed construction of this house because his property overlooks the location . He said there may be three lots still to develop there and he is concerned about the continuance of having variances awarded after the projects have moved on . He thinks that it is important to maintain the standards that the Town has set up and he feels the Board may be setting up a precedent for the future use of those lots which are situated in an awkward position to put buildings on . Mr . McMinn stated that he is concerned about the height of the proposed house because it eliminates two feet of trees for him to overlook 6 Mile Creek and South Hill which is one reason he bought his property in the first place . Mr . Hines spoke regarding the topography of the area in question and further discussion followed . Chairman Aron closed the public hearing . MOTION ( Setback ) By Mr . Robert Hines ; seconded by Mrs . Joan Reuning ; RESOLVED , that the Town of Ithaca Zoning Board of Appeals grant and hereby does grant a Variance for Mr . Hanna from the set back requirements of the Zoning Ordinance for the proposed construction of a single- family residence to be located at 8 Winner ' s Circle with the following findings : 19 that the placement of the concrete foundation was done with reasonable diligence . 2o that the placement of the foundation too close to the street line was inadvertent . ® 3a that the proposed construction imposes no burden on the surrounding properties . Town of Ithaca 3 Zoning Board of Appeals November 28 , 1990 4 * that the development of this property is consistent with the development of the community in this area . 5 , that to deny the variance would impose a hardship and severe burden on the applicant . Aye - Hines , Reuning , Aron , King . Nay - None . CARRIED UNANIMOUSLY . MOTION ( Height Variance ) By Mrs . Joan Reuning ; seconded by Mr . Robert Hines . RESOLVED , that the Town of Ithaca Zoning Board of Appeals grant and hereby does grant a height variance to Mr . Hanna for the proposed construction of a single - family residence to be located at 8 Winner ' s Circle , with the following findings and condition : 10 that from the front of the building , the building would be below the maximum height , which would be the only side of the building that would have any implication with the neighborhood . 29 that from the rear of the house , no one would be adversely affected , being that there are no existing residences behind the house . 3a that the topography of this land makes it impossible to build a house that has any kind of height in the front without having to get a variance , thereby making it a hardship . 4 * that the hardship is to bring the fill to the level of 2 feet . 5a that the variance be granted for no more than three feet . Aye - Reuning , Hines , King , Aron . Nay - None . 6 CARRIED UNANIMOUSLY . Resignation of Mr . HenryAron to the Board of Zoning Appeals Chairman Aron stated that he has tendered his resignation as Board member and Chairman to be effective December 31 , 1990 . Town of Ithaca 4 Zoning Board of Appeals November 28 , 1990 Election of Chairman for the Zoning Board of Appeals By Chairman Aron ; seconded by Mr . Robert Hines , RESOLVED , that the Town of Ithaca Zoning Board of Appeals elects as its Chairman Edward Austen ' for the period of January 1 , 1991 through December 31 , 1991 . Aye - Aron , King , Hines , Reuning . Nay - None , CARRIED UNANIMOUSLY Election of Vice Chairman for the Zoning Board of Appeals By Chairman Aron ; seconded by Mr . Robert Hines : RESOLVED , that the Town of Ithaca Zoning Board of Appeals elects as its Vice Chairman Joan Reuning for the period of January 1 , 1991 through December 31 , 1991 . Aye - Aron , Reuning , King , Hanes . Nay - None . CARRIED UNANIMOUSLY . ADMINISTRATIVE HEARING ( ADJOURNED FROM OCTOBER 10 AND NOVEMBER 141 1990 ) , UNDER ARTICLE XIV , SECTION 77 , OF THE TOWN OF ITHACA ZONING ORDINANCE , FOR AN INTERPRETATION BY THE BOARD OF APPEALS OF ARTICLE VII , SECTION 35 , OF SAID ORDINANCE TO DETERMINE IF ANY USES PERMITTED IN BUSINESS DISTRICTS "A" , " B" , AND " C" MAY BE PERMITTED IN A BUSINESS DISTRICT " D " , AND FURTHER , TO DETERMINE WHAT SALES/USES MAY BE CUSTOMARILY ENCOMPASSED WITHIN A GASOLINE SALES STATION . Resolution offered by Mr . Edward King , seconded by Mr . Robert Hines : IN THE MATTER OF THE INTERPRETATION OF ZONING ORDINANCE , SECTION 35 , ( re . permitted ACCESSORY uses in Business " D " Zones : gasoline sales stations and repair garages ) , THE ZONING BOARD OF APPEALS HEREBY : Town of Ithaca 5 Zoning Board of Appeals November 28 , 1990 ADOPTS AS FINDINGS THE FOLLOWING . 1 . Section 35 of the Town of Ithaca Zoning Ordinance specifies as the only permitted uses in the Business : " D " Zones to be created thereunder , the operation of Gasoline Service Stations and Automotive Repair Garages , while Section 31 , restricts the location of such Districts to prevent them in R- 15 Residence Zones . 2 . Section 35 itself also provides that these Districts are subject to the further restrictions of Section 71 , which establishes special separation minimums - - applicable only to gas stations and automotive repair garages , to keep building and facilities back from street lines and residence districts , and to limit the intrusion of these facilities into the side yards and front yards of the Lot . And Section 35 issues the further warning that Business D facilities and uses are also subject to the provisions of Section 54 of the Ordinance - - which permits the extension of a non-conforming building or use only upon authorization of the ZBA . ® 3 . Accessory Uses permitted in the Business Zones by Section 36 are limited to accessory storage buildings , parking , and signs - - as far as they would seem to be applicable to a Business D zone . No provisions for the Special Approval of the ZBA ( with or without Planning Board approval of a site plan ) appears to be provided in Article VII [ Sections 31 - 39 ] ; but Section 39 and 46 - a of the Ordinance do call for site plan approval by the Planning Board for any building or structure to be erected within any business district . 4 . Some 55 specified types of Business operations are specified as permitted uses or operations in one or the other of the 3 Business Districts , in their delineation in Sections 32 - 34 of the Ordinance . Only Business " D " districts are limited_ to but 2 specified uses . 5 . It thus seems clear from the Ordinance itself that businesses providing automotive gasoline , oil , care and repair , were to be specially sited and specially controlled by limitations . The inherent danger in the storage and dispensing of volatile , flammable and explosive fuels , and the high volume of traffic into them and out of them onto streets or highways abutting , undoubtedly account in large measure for the concern of the drafters in singling out these businesses for special attention and restriction . 6 . Minimizing retail sales activities at . most service stations sites appears to be the general goal and thrust of our Zoning Ordinance . Town of Ithaca 6 Zoning Board of Appeals November 28 , 1990 7 . Yet there are undoubtedly some situations , places , . facilities , where an expansion of such sales might be desirable and safely implements , but the burden of - establishing need , desirability and safety ought to be placed upon the proponent and subjected to careful scrutiny via public hearings and board determinations - - site plans and traffic impact studies being essential elements to be considered in every . determination . 8 . Note is also made of the fact that many or most service stations in the area sell other automotive utilities and supplies ( tires , batteries ; wiper blades ; snow - brushes and ice scrapers ; mud flaps ; anti - freeze ; windshield wash ; etc . etc . ) , as well as soda , cigarettes , candy , gum. and snacks . 90 One argument advanced for the specific enlargement of retail sale opportunities at Business D facilities is that economic necessity requires that a supplier of these essential items for automotive fuels and repairs supplement the sales generated at such a location by the sale of other products . If that is true as a general proposition for all service ® stations , it would seem that it should be established to the satisfaction of the Town Board as a reason for expanding the statement of permitted uses in Business D Zones in Section 35 . If in a particular situation only , the. Planning Board , in recommending or opposing a Variance , should carefully scrutinize whether the Station ought to be sited there at all , and what limiting parameters might be essential or wise for the operation . 10 . The essential purpose of a gasoline service station ( with or without repair facilities ) being to enable the motorist to fuel his vehicle and resume his highway travel . A station should be able to provide most things of immediate necessity or aid to that end , without. Special Permission or Variance , And that automatic inclusion ought to include some fueling and refreshing of driver and passengers , as well as of the vehicle itself . The limitations suggested by Mr . Barney , to " snack food items , coffee , soda , cookies , cigarettes , and various type convenience items generally used for immediate consumption by the patron who has purchased gasoline products " might well be sufficient to the task of deterring the use of the station as a substitute grocery or drug store , newspaper and magazine vending establishment , etc , - - thus limiting ® station traffic in volume and duration . But consider also . • Town of Ithaca 7 Zoning Board of Appeals November 28 , 1990 ( a ) Items essential or merely helpful to enable the vehicle to proceed on its journey would seem to include the following . wiper blades , fuses , . . . [ See " 8 " above ] ( b ) AND custom dictates that it is now reasonable to expect to be able to purchase items to aid the individual , such as . candy , gum , cigarettes, kleenex , and colas and other soft drinks , coffee could also be included as helpful to restore alertness , aspirin and alka - seltzer would also be helpful . Cookies , ice cream , crackers and other munchies might also add to the enjoyment of the trip and even contribute to an avoidance of drowsiness . 11 . Of primary importance to Planners and Zoners , it would seem , is/ are the goal ( s ) of minimizing dangerous congestion and traffic flow into and out of service stations . The amount of vehicular and pedestrian traffic expected at one site and another may vary widely , depending upon the location of the station . Expanding the number of goods for sale will surely expand the frequency and intensity of traffic on the site , the time spent there , and the likelihood of extensive harm and damage if a fire or explosion should take place there . 12 . To expand a station operation to include the sale of daily newspapers , bread , canned goods , household items and other staples and items commonly found in a convenience store , grocery store , drug store , magazine stand , video store , and other types of retail sales stores requires the exercise of a great deal of caution - - for vehicle and pedestrian traffic , congestion , and potential danger is thereby invited . Newspapers invite daily stops , as does the offering of other items . 13 . In the interests of promoting safety by minimizing or optimizing vehicular traffic in and out of service stations , while yet not defeating the purpose of such stations , narrow circumscription of the items that may be unquestionably sold at gasoline service stations and repair garages , seems in order in interpreting Section 35 of the Zoning Ordinance . NOW , THEREFORE , BE IT RESOLVED , that this Board now decides that the Town of Ithaca Zoning Ordinance , Section 35 , permitting gasoline service station and repair garages only in Business " D " Zones , is to be interpreted to mean that . A . The Zoning Ordinance and Section 35 in particular are not to • be interpreted to generally permit therein any primary or accessory uses as are permitted in the other Business Zones , A , B , C , or E . Town of Ithaca 8 Zoning Board of Appeals November 28 , 1990 B . However , some retail sales from a• station or garage should be permitted in accordance with need and custom and the purposes of such automotive service and repair facilities . The essential purpose of a gasoline service . station ( with or without repair facilities ) being to enable the motorist to fuel his vehicle and resume his highway travel , the Service Station operator ought also be permitted to provide , as is customary , most things of immediate necessity or aid to that end , including some limited fueling and refreshing of driver and passengers , as well as of - the vehicle itself ; but the items offered for retail sale should be limited snack food items , coffee , soda , cookies , cigarettes , and various type convenience items generally used for immediate consumption by the patron who has purchased gasoline products . But Service Stations and Garages should not be used as a substitute grocery or drug store , newspaper and magazine vending establishment , nor to engage in any other retail sales which themselves invite vehicular or pedestrian traffic and tend to increase station traffic in volume and duration without correlation with the primary purpose of the station - -viz . , to service motor vehicles . AND BE IT FURTHER RESOLVED , that sale items to be generally permitted include the following : ( a ) Items essential or merely helpful to enable the vehicle to proceed on its journey could include the following . wiper blades , fuses , automotive utilities and supplies , such as tires ; batteries , wiper blades ; snow- brushes and ice scrapers ; mud flaps , anti - freeze ; windshield wash ; and similar articles and supplies . ( b ) And custom dictates that it is now reasonable to expect to be able to purchase items to aid the individual , such as : candy , gum , cigarettes , kleenex , and colas and other soft drinks , coffee could also be included as helpful to restore alertness , aspirin and alka - seltzer would also be helpful . Cookies , ice cream , crackers and other munchies might also be reasonably sold to the motorist who has just purchased gasoline or oil products at the station - - such items being regarded as adding to the enjoyment of the trip and perhaps contributing to an avoidance of drowsiness . • Town of Ithaca 9 Zoning Board of Appeals November 28 , 1990 ( c ) Our general intent is that the offerings for retail sale at a station or garage are to be generally so limited and focused on the travelling motorist that people are discouraged from daily or frequent shopping there , and particularly from making purchases there unrelated to their vehicular travel or irrespective of their having stopped primarily for vehicular service needs . ( d ) Section 35 of the Ordinance is not to be interpreted to expand a station operation to include the sale of items other than referred to above such as daily newspapers , bread , canned goods , household items and other staples and items commonly found in a convenience store , grocery store , drug store , magazine stand , video store , and other types of retail sales stores , irrespective of travelling needs and immediate consumption . No item offered should itself be likely to significantly increase vehicular or pedestrian traffic or congestion around the station or in the immediate area . Chairman Aron called for a voice vote in the above matter which resulted as follows : Mr . King - Aye Mr . Hines - Aye Mrs . Reuning - Aye Mr . Aron - Aye The motion was carried unanimously . Mr . Hines offered a resolution which was seconded by Mr . King as follows : WHEREAS , Section 35 of the Town of Ithaca Zoning Ordinance was enacted at a time when the market structure of gasoline sales and service was substantially different than it is at present , and WHEREAS , gasoline sales facilities in and about the County of Tompkins customarily and as part of their regular business activities sell a variety of snack foods and drinks and related convenience items for the travelling public , and WHEREAS , the Board of Zoning Appeals has been called upon to interpret the meaning of gasoline service stations and the Board of Zoning Appeals has interpreted that noun to include activities relating to retail sales of items of convenience for the travelling public , and Town of Ithaca 10 Zoning Board of Appeals November 28 , 1990 WHEREAS , the Board of Zoning Appeals feels that the matter should properly be addressed by the Town Board with the prospect of drafting a more comprehensive definition of gasoline sales or service stations ; now therefore be it RESOLVED , that the Board of Zoning Appeals of the Town of Ithaca does recommend to the Town Board of the Town of Ithaca , the Planning . Board of the Town of Ithaca and the Planning staff of the Town of Ithaca they consider an amendment to the Zoning Ordinance of the Town of Ithaca amplifying or redefining the meaning of the term " gasoline sales station " . Chairman Aron called for a voice vote on the above resolution which resulted as follows : Mr . Hines - Aye Mr . King - Aye Mrs . Reuning - Aye Mr . Aron - Aye The motion was carried unanimously . Proposed amendment to the Zoning Ordinance with respect to exempting subdivisions from the requirement to obtain fill permits under certain circumstances MOTION : By Mr . Henry Aron ; seconded by Mr . Robert Hines : RESOLVED , that the following Local Law be recommended to the Town Board for their consideration and action : TOWN OF ITHACA LOCAL LAW NO . OF THE YEAR 19 A LOCAL LAW AMENDING THE TOWN OF ITHACA ZONING ORDINANCE EXEMPTING SUBDIVISIONS FROM THE REQUIREMENT TO OBTAIN FILL PERMITS UNDER CERTAIN CIRCUMSTANCES . Be it enacted by the Town Board of the Town of Ithaca as follows : The Zoning Ordinance of the Town of Ithaca as readopted , amended and revised effective February 26 , 1968 , and % subsequently amended , be further amended as follows . 1 . Article XIII , Section 70 , is hereby amended by adding a. new subdivision 5 in the list of exceptions reading as follows : • Town of Ithaca 11 Zoning Board " of Appeals November 28 , 1990 115 . Removal or deposit of fill in connection with construction of roads and other facilities in a subdivision approved in accordance with the requirements of the Town of Ithaca Planning Board , provided , however , that ( a ) plans for such construction showing in sufficient detail the proposed removal and/ or deposit of fill were submitted to the Planning Board and approved by the Town Engineer in conjunction with the subdivision approval ; or ( b ) the Planning Board expressly waived the requirement of submission' of such drawings and the total amount of material to be either deposited or removed is less than 500 cubic . yards . In any event the exception granted by this subparagraph shall not apply to any construction which occurs more than three years after granting of final subdivision approval by the Town Planning Board . " 2 . This Local Law shall take effect upon its publication as required by law . Aye - Aron , Hines , King , Reuning . Nay - None . CARRIED UNANIMOUSLY . Proposed amendment to the Zoning Ordinance relating to occupancy of mobile home park districts MOTION : By Mr . Henry Aron , seconded by Mr . Edward King . RESOLVED , That the following Local Law be recommended to the Town Board for their consideration and action : TOWN OF ITHACA LOCAL LAW NO . OF THE YEAR 19 A LOCAL LAW AMENDING THE TOWN OF ITHACA ZONING ORDINANCE RELATING TO OCCUPANCY OF MOBILE HOME PARK DISTRICTS . Be it enacted by the Town Board of the Town of Ithaca as • follows : v Town of Ithaca 12 Zoning Board of Appeals November 28 , 1990 The Zoning Ordinance of the Town of Ithaca as readopted , amended and revised effective February 26 , 1969 , and subsequently amended , be further amended as follows . 1 . Article II -A , � Section 3 ( b ) , is hereby amended by adding at the end thereof the following : " In a mobile home park , there shall be no more than one dwelling unit maintained in each mobile home . In addition , each dwelling unit may be occupied by not more than ( a ) one family , or ( b ) one family plus no more than two boarders , roomers , lodgers , or other occupants . " 2 . This law shall take effect upon its publication as required by law . Aye - Aron , King , Hines , Reuning . Nay - None . CARRIED UNANIMOUSLY . Proposed amendment to the Zoning Ordinance providing for the amortization of certain non-conforming uses . MOTION : By Mr . Henry Aron ; seconded by Mr . Robert Hines . RESOLVED , that in the matter of " A LOCAL LAW AMENDING THE TOWN OF ITHACA ZONING ORDINANCE PROVIDING FOR THE AMORTIZATION OF CERTAIN NON - CONFORMING USES " recommendation to the Town Board for their consideration , the Town of Ithaca Zoning Board of Appeals determines at this time not to act . Aye - Aron , Hines , Reuning , King . Nay - None . CARRIED UNANIMOUSLY . The meeting adjourned at 8 : 50 p . m . Connie J . liolcomb Recording Secretary • APPROVED : 40 k Henry Aron , Chairman P ADOPTED RESOLUTION ® I 1 Town of Ithaca Zoning Board of Appeals November 28 , 1990 Resolution offered by Mr . Edward King , seconded by Mr . Robert Hines : IN THE MATTER OF THE INTERPRETATION OF ZONING ORDINANCE , SECTION 35 , ( re . permitted ACCESSORY uses in Business " D " Zones : gasoline sales stations and repair garages ) , THE ZONING BOARD OF APPEALS HEREBY : ADOPTS AS FINDINGS THE FOLLOWING . 1 . Section ' 35 of the Town of Ithaca Zoning Ordinance specifies as the only permitted uses in the Business : " D " Zones to be created thereunder , the operation of Gasoline Service Stations and Automotive Repair Garages , while Section 31 , restricts the location of such Districts to prevent them in R- 15 Residence Zones . 2 . Section 35 itself also provides that these Districts are subject to the further restrictions of Section 71 , which establishes special separation minimums - - applicable only to gas stations and automotive repair garages , to keep building and facilities back from street lines and residence districts , and to limit the intrusion of these facilities into the side yards and front - yards of the Lot . And Section 35 issues the further warning that Business D facilities and uses are also subject to the provisions of Section 54 of the Ordinance - - which permits the extension of a non-conforming building or use only upon authorization of the ZBA . 30 Accessory Uses permitted in the Business Zones by Section 36 are limited to accessory storage buildings , parking , and signs - - as far as they would seem to be applicable to a Business D zone . No provisions for the Special Approval of the ZBA ( with or without Planning Board approval of a site plan ) appears to be provided in Article VII ( Sections 31 - 39 ) , but Section 39 and 46 - a of the Ordinance do call for site plan approval by the Planning Board for any building or structure to be erected within any business district . 4 . Some 55 specified types of Business operations are specified as permitted uses or operations in one or the other of the 3 Business Districts , in their delineation in Sections 32 - 34 of the Ordinance . Only Business " D " districts are limited to but 2 specified uses . k,,. ADQPTFD. RESOLUTION ® Town of Ithaca 2 Zoning Board of Appeals November 28 , 1990 5 . It thus seems clear from the Ordinance itself that businesses providing automotive gasoline , oil , care and repair , were to be specially sited and specially controlled by limitations . The inherent danger in the storage and dispensing of volatile , flammable and explosive fuels , and the high volume of traffic into them and out of them onto streets or highways abutting , undoubtedly account in large measure for the concern of the drafters in singling out these businesses for special attention and restriction . 6 . Minimizing retail sales activities at most service stations sites appears to be the general goal and thrust of our Zoning Ordinance . 7 . Yet there are undoubtedly some situations , places , facilities , where an expansion of such sales might be desirable and safely implements , but the burden of establishing need , desirability and safety ought to be placed upon the proponent and subjected to careful scrutiny via public hearings and board determinations - - site plans ® and traffic impact studies being essential elements to be considered in every determination . 8 . Note is also made of the fact that many or most service stations in the area sell other automotive utilities and supplies ( tires ; batteries , wiper blades , snow-brushes and ice scrapers ; mud flaps , anti - freeze ; windshield wash ; etc . etc . ) , as well as soda , cigarettes , candy , gum and snacks . 9 . One argument advanced for the specific enlargement of retail sale opportunities at Business D facilities is that economic necessity requires that a supplier of these essential items for automotive fuels and repairs supplement the sales generated at such a location by the sale of other products . If that is true as a general proposition for all service stations , it would seem that it should be established to the satisfaction of the Town Board as a reason for expanding the statement of permitted uses in Business D Zones in Section 35 . If in a particular situation only , the Planning Board , in recommending or opposing a Variance , should carefully scrutinize whether the Station ought to be sited there at all , and what limiting parameters might be essential or wise for the operation . 10 . The essential purpose of a gasoline service station ( with or without repair facilities ) being to enable the motorist to fuel his vehicle and resume his highway travel . A station should be able to provide most things of immediate necessity or aid to that end , without Special Permission or Variance . ADOPTED RESOLUTION ® Town of Ithaca 3 Zoning Board of Appeals November 28 , 1990 And that automatic inclusion ought to include some fueling and refreshing of driver and passengers ; as well as of the vehicle itself . The limitations -suggested by Mr . Barney , to " snack food items , coffee , soda , cookies , cigarettes , and various type convenience items generally used for immediate consumption by the patron who has purchased gasoline products " might well be sufficient to the task of deterring the use of the station as a substitute grocery or drug store , newspaper and magazine vending establishment , etc . - - thus limiting station traffic in volume and duration . But consider also : ( a ) Items essential or merely helpful to enable the vehicle to proceed on its journey would seem to include the following : wiper blades , fuses , [ See 118 " above ] ( b ) AND custom dictates that it is now reasonable to expect to be able to purchase items to aid the individual , such as : candy , gum , cigarettes , kleenex , and colas and other soft drinks , coffee could also be included as helpful to restore alertness , aspirin and alka - seltzer would also be helpful . Cookies , ice cream , crackers and other munchies might also add to the enjoyment of the trip and even contribute to an avoidance of drowsiness . 11 . Of primary importance to Planners and Zoners , it would seem , is/ are the goal ( s ) of minimizing dangerous congestion and traffic flow into and out of service stations . The amount of vehicular and pedestrian traffic expected at one site and another may vary widely , depending upon the location of the station . Expanding the number of goods for sale will surely expand the frequency and intensity of traffic on the site , the time spent there , and the likelihood of extensive harm and damage if a fire or explosion should take place there . 12 . To expand a station operation to include the sale of daily newspapers , bread , canned goods , household items and other staples and items commonly found in a convenience store , grocery store , drug store , magazine stand , video store , . and other types of retail sales stores requires the exercise of a great deal of caution - - for vehicle and pedestrian traffic , congestion , and potential danger is thereby invited . Newspapers invite daily stops , as does the offering of other items . ADOPTED RESOLUTION ® Town of Ithaca 4 Zoning Board of Appeals November 28 , 1990 13 . In the interests of promoting safety by minimizing or optimizing vehicular traffic in and out of service stations , while yet not defeating the purpose of such stations , narrow circumscription of the items that may be unquestionably sold at gasoline service stations and repair garages , seems in order in interpreting Section 35 of the Zoning Ordinance . NOW , THEREFORE , BE IT RESOLVED , that this Board now decides that the Town of Ithaca Zoning Ordinance , Section 35 , permitting gasoline service station and repair garages only in Business " D " Zones , is to be interpreted to mean that . A . The Zoning Ordinance and Section 35 in particular are not to be interpreted to generally permit therein any primary or accessory uses as are permitted in the other Business Zones , A , B , C , or E . Be However , some retail sales from a station or garage should be permitted in accordance with need and custom and the purposes of such automotive service and repair facilities . The essential purpose of a gasoline service station ( with or ® without repair facilities ) . being to enable the motorist to fuel his vehicle and resume his highway travel , the Service Station operator ought also be permitted to provide , as is customary , most things of immediate necessity or aid to that end , including some limited fueling and refreshing of driver and passengers , as well as of the vehicle itself , but the items offered for retail sale should be limited snack food items , coffee , soda , cookies , cigarettes , and various type convenience items generally used for immediate consumption by the patron who has purchased gasoline products . But Service Stations and Garages should not be used as a substitute grocery or drug store , newspaper and magazine vending establishment , nor to engage in any other retail sales which themselves invite vehicular or pedestrian traffic and tend to increase station traffic in volume and duration without correlation with the primary purpose of the station - -viz . , to service motor vehicles . AND BE IT FURTHER RESOLVED , that sale items to be generally permitted include the following . ( a ) Items essential or merely helpful to enable the vehicle to proceed on its journey could include the following . wiper • blades , fuses , automotive utilities and supplies , such as tires , batteries , wiper blades , snow- brushes and ice scrapers , mud flaps , anti - freeze ; windshield wash , and similar articles and supplies . ADORTED. RESOLUTION Town of Ithaca 5 Zoning Board of Appeals November 28 , 1990 ( b ) And custom dictates that it is now reasonable to expect to be able to purchase items to aid the individual , such as .0 candy , gum , cigarettes , kleenex , and colas and other soft drinks , coffee could also be included as helpful to restore alertness , aspirin and alka - seltzer would also be helpful . Cookies , ice cream , crackers and other munchies might also be reasonably sold to the motorist who has just purchased gasoline or oil products at the station - - such items being regarded as adding to the enjoyment of the trip and perhaps contributing to an avoidance of drowsiness . ( c ) Our general intent is that the offerings for retail sale at a station or garage are to be generally so limited and focused on the travelling motorist that people are discouraged from daily or frequent shopping there , and particularly from making purchases there unrelated to their vehicular travel or irrespective of their having stopped primarily for vehicular service needs . ( d ) Section 35 of the Ordinance is not to be interpreted to expand a station operation to include the sale of items other than referred to above such as daily newspapers , bread , canned goods , household items and other staples and items commonly found in a convenience store , grocery store , drug store , magazine stand , video store , and other types of retail sales stores , irrespective of travelling needs and immediate consumption . No item offered should itself be likely to significantly increase vehicular or pedestrian traffic or congestion around the station or in the immediate area . Chairman Aron called for a voice vote in the above matter which resulted as follows . Mr . King - Aye Mr . Hines - Aye Mrs . Reuning - Aye Mr . Aron - Aye The motion was carried unanimously . Chairman , Town of Ithaca • Zoning Board of Appeals �� Nancy .1.1 ,17 Fuller , Secretary to the Town of Ithaca Zoning Board of Appeals . December 5 , 19900 ADOPTED RESOLUTION 1 Town of Ithaca Zoning Board of Appeals November 28 , 1990 Resolution offered by Mr . Edward King , seconded by . Mr . Robert Hines . IN THE MATTER OF THE INTERPRETATION OF ZONING ORDINANCE , SECTION 35 , ( re . permitted ACCESSORY uses in Business " D " Zones : gasoline sales stations and repair garages ) , THE ZONING BOARD OF APPEALS HEREBY . ADOPTS AS FINDINGS THE FOLLOWING . 1 . Section 35 of the Town of Ithaca Zoning Ordinance specifies as the only permitted uses in the Business : " D " Zones to be created thereunder , the operation of Gasoline Service Stations and Automotive Repair Garages , while Section 31 , restricts the location of such Districts to prevent them in R- 15 Residence Zones . 2 . Section 35 itself also provides that these Districts are subject to the further restrictions of Section 71 , which establishes special separation minimums - - applicable only to gas stations and automotive repair garages , to keep building and facilities back from street lines and residence districts , and to limit the intrusion of these facilities into the side yards and front yards of the Lot . And Section 35 issues the further warning that Business D facilities and uses are also subject to the provisions of Section 54 of the Ordinance - - which permits the extension of a non-conforming building or use only upon authorization of the ZBA . 3 . Accessory Uses permitted in the Business Zones by Section 36 are limited to accessory storage buildings , parking , and signs - - as far as they would seem to be applicable to a Business D zone . No provisions for the Special Approval of the ZBA ( with or without Planning Board approval of a site plan ) appears to be provided in Article VII ( Sections 31 - 39 ] • but Section 39 and 46 - a of the Ordinance do call for siteplan approval by the Planning Board for any building or structure to be erected within any business district . 4 . Some 55 specified types of Business operations are specified as permitted uses or operations in one or the other of the 3 Business Districts , in their delineation in Sections 32 - 34 of the Ordinance . Only Business " D " districts are limited to but 2 specified uses . . rwQPTF4D. RESOLUTION Town of Ithaca 2 Zoning Board of Appeals November 28 , 1990 5 . It thus seems clear from the Ordinance itself that businesses providing automotive gasoline , oil , care and repair , were to be specially sited and specially controlled by limitations . The inherent danger in the storage and dispensing of volatile , flammable and explosive fuels , and the high volume of traffic into them and out of them onto streets or highways abutting , undoubtedly account in large measure for the concern of the drafters in singling out these businesses for special attention and restriction . 6 . Minimizing retail sales activities at most service stations sites appears to be the general goal and thrust of our Zoning Ordinance , 7 . Yet there are undoubtedly some situations , places , facilities , where an expansion of such sales might be desirable and safely implements , but the burden of establishing need , desirability and safety ought to be placed upon the proponent and subjected to careful scrutiny via public hearings and board determinations - - site plans and traffic impact studies being essential elements to be considered in every determination . 8 . Note is also made of the fact that many or most service stations in the area sell other automotive utilities and supplies ( tires ; batteries , wiper blades ; snow-brushes and ice scrapers , mud flaps ; anti - freeze ; windshield wash , etc . etc . ) , as well as soda , cigarettes , candy , gum and snacks . 9 . One argument advanced for the specific enlargement of retail sale opportunities at Business D facilities is that economic necessity requires that a supplier of these essential items for automotive fuels and repairs supplement the sales generated at such a location by the sale of other products . If that is true as a general proposition for all service stations , it would seem that it should be established to the satisfaction of the Town Board as a reason for expanding the statement of permitted uses in Business D Zones in Section 35 . If in a particular situation only , the Planning Board , in recommending or opposing a Variance , should carefully scrutinize whether the Station ought to be sited there at all , and what limiting parameters might be essential or wise for the operation . 10 . The essential purpose of a gasoline service station ( with or without repair facilities ) being to enable the motorist to fuel his vehicle and resume his highway travel . A station should be able to provide most things of immediate necessity or aid to that end , without Special Permission or Variance . ` ADOPTED RESOLUTION Town of Ithaca 3 Zoning Board of Appeals November 28 , 1990 And that automatic inclusion ought to include some fueling and refreshing of driver and passengers , as well as of the vehicle itself . The limitations -suggested by Mr . Barney , to " snack food items , coffee , soda , cookies , cigarettes , and various type convenience items generally used for immediate consumption by the patron who has purchased gasoline products " might well be sufficient to the task of deterring the use of the station as a substitute grocery or drug store , newspaper and magazine vending establishment , etc . - - thus limiting station traffic in volume and duration . But consider also . ( a ) Items essential or merely helpful to enable the vehicle to proceed on its journey would seem to include the following . wiper blades , fuses , [ See 118 " above ] ( b ) AND custom dictates that it is now reasonable to expect to be able to purchase items to aid the individual , such as : candy , gum , cigarettes , kleenex , and colas and other soft drinks , coffee could also be included as helpful to restore alertness , ® aspirin and alka - seltzer would also be helpful . Cookies , ice cream , crackers and other munchies might also add to the . enjoyment of the trip and even contribute to an avoidance of drowsiness . 11 . Of primary importance to Planners and Zoners , it would seem , is/ are the goal ( s ) of minimizing dangerous congestion and traffic flow into and out of service stations . The amount of vehicular and pedestrian traffic expected at one site and another may vary widely , depending upon the location of the station . Expanding the number of goods for sale will surely expand the frequency and intensity of traffic on the site , the time spent there , and the likelihood of extensive harm and damage if a fire or explosion should take place there . 12 . To expand a station operation to include the sale of daily newspapers , bread , canned goods , household items and other staples and items commonly found in a convenience store , grocery store , drug store , magazine stand , video store , and other types of retail sales stores requires the exercise of a great deal of caution - - for vehicle and pedestrian traffic , congestion , and potential danger is thereby invited . Newspapers invite daily stops , as does the offering of other items . ADOPTED RESOLUTION Town of Ithaca 4 Zoning Board of Appeals November 28 , 1990 13 . In the interests of promoting safety by minimizing or optimizing vehicular traffic in and out of service stations , while yet not defeating the purpose of such stations , narrow circumscription of the items that may be unquestionably sold at gasoline service stations and repair garages , seems in order in interpreting Section 35 of the Zoning Ordinance . NOW , THEREFORE , BE IT RESOLVED , that this Board now decides that the Town of Ithaca Zoning Ordinance , Section 35 , permitting gasoline service station and repair garages only in Business " D " Zones , is to be interpreted to mean that : A . The Zoning Ordinance and Section 35 in particular are not to be interpreted to generally permit therein any primary or accessory uses as are permitted in the other Business Zones , A , B , C , or E . Be However , some retail sales from a station or garage should be permitted in accordance with need and custom and the purposes of such automotive service and repair facilities . The essential purpose of a gasoline service station ( with or • without repair facilities ) being to enable the motorist to fuel his vehicle and resume his highway travel , the Service Station operator ought also be permitted to provide , as is customary , most things of immediate necessity or aid to that end , including some limited fueling and refreshing of driver and passengers , as well as of the vehicle itself ; but the items offered for retail sale should be limited snack food items , coffee , soda , cookies , cigarettes , and various type convenience items generally used for immediate consumption by the patron who has purchased gasoline products . But Service Stations and Garages should not be used as a substitute grocery or drug store , newspaper and magazine vending establishment , nor to engage in any other retail sales which themselves invite vehicular or pedestrian traffic and tend to increase station traffic in volume and duration without correlation with the primary purpose of the station - -viz . , to service motor vehicles . AND BE IT FURTHER RESOLVED , that sale items to be generally permitted include the following : ( a ) Items essential or merely helpful to enable the vehicle to proceed on its journey could include the following : wiper • blades , fuses , automotive utilities and supplies , such as tires , batteries , wiper blades ; snow -brushes and ice scrapers ; mud flaps ; anti - freeze ; windshield wash , and similar articles and supplies . I ADOPTED. RUE 0 UTION Town of Ithaca 5 Zoning Board of Appeals November 28 , 1990 ( b ) And custom dictates that it is now reasonable to expect to be able to purchase items to aid the individual , such as : candy , gum , cigarettes , kleenex , and colas and other soft drinks , coffee could also be included as helpful to restore alertness , aspirin and alka - seltzer would also be helpful . Cookies , ice cream , crackers and other munchies might also be reasonably sold to the motorist who has just purchased gasoline or oil products at the station - - such items being regarded as adding to the enjoyment of the trip and perhaps contributing to an avoidance of drowsiness . ( c ) Our general intent is that the offerings for retail sale at a station or garage are to be generally so limited and focused on the travelling motorist that people are discouraged from daily or frequent shopping there , and particularly from making purchases there unrelated to their vehicular travel or irrespective of their having stopped primarily for vehicular service needs . ( d ) Section 35 of the Ordinance is not to be interpreted to expand a station operation to include the sale of items other than referred to above such as daily newspapers , bread , canned goods , household items and other staples and items commonly found in a convenience store , grocery store , drug store , magazine stand , video store , and other types of retail sales stores , irrespective of travelling needs and immediate consumption . No item offered should itself be likely to significantly increase vehicular or pedestrian traffic or congestion around the station or in the immediate area . Chairman Aron called for a voice vote in the above matter which resulted as follows : Mr . King - Aye Mr . Hines - Aye Mrs . Reuning - Aye Mr . Aron - Aye The motion was carried unanimously . Chairman , Town of Ithaca Zoning Board of Appeals Nancy .M Fuller , Secretary to the Town of Ithaca Zoning Board of Appeals . December 5 , 19909 ADOPTED RESOLUTION Town of Ithaca Zoning Board of Appeals November 28 , 1990 Mr . Hines offered a resolution which was seconded by Mr . King as follows : WHEREAS , Section 35 of the Town of Ithaca Zoning Ordinance was enacted at a time when the market structure of gasoline sales and service was substantially different than it is at present , and WHEREAS , gasoline sales facilities in and about the County of Tompkins customarily and as part of their regular business activities sell a variety of snack foods and drinks and related convenience items for the travelling public , and WHEREAS , the Board of Zoning Appeals has been called upon to interpret the meaning of gasoline service stations and the Board of Zoning Appeals has interpreted that noun to include activities relating to retail sales of items of convenience for the travelling public , and WHEREAS , the Board of Zoning Appeals feels that the matter should properly be addressed by the Town Board with the prospect of drafting a more comprehensive definition of gasoline sales or service stations , now therefore be it RESOLVED , that the Board of Zoning Appeals of the Town of Ithaca does recommend to the Town Board of the Town of Ithaca , the Planning Board of the Town of Ithaca and the Planning staff of the Town of Ithaca they consider an amendment t ;the Zoning Ordinance of the Town of Ithaca amplifying or r fining the meaning of the term " gasoline sales station " . _ f? Dated : November 28 , 1990 / Ithaca , New York HENRY ARON , Chairman Chairman Aron called for a voice vote on the above resolution which resulted as follows : Mr . Hines - Aye Mr . King - Aye Mrs . Reuning - Aye Mr . Aron - Aye The motion was carried unanimously . ® Connie J . Holcomb Recording Secretary Nanby M . uller , Secretary to the Town of Ithaca Zoning Board of Appeals . December 5 , 1990 . AFFIDAVIT OFPUBLICATION TOWN OF fTHACA .ZONING THE '11HACA JOURNAL BOARD . , APPEALS !' _'NOTICE OF PUBLIC HEARINGS ' WEDNESDAY, NOV. 28, - 1990, .) 7 :00 P. M. I, , B direcnm on ' of the Chairan i .of the Zoning Board of Ap-. t State of New York , Tompkins County , ss . : peals NOTICE IS '- HEREBY GIVEN that Public Hearings.i will be held by the. ,Zoningl Gail Stillins being duly sworn , deposes and Ba, ofltrd of appeals of the T,, -' says . that she/he resides in Ithaca , county and state af0resald and that vember . 28. 1990; . in Town Holl , 126 East Seneca Streei,- Clerk (FIRST Floor , REAR Enfronce,' Sheltie is WEST Side ), Ithaca , N . Y.". COMMENCING AT - 7 :00 P. M. '• on the following matters. of The Ithaca Journal a public newspaper printed and published in APPEAL of Samir Hanna . Ap' pellont, re6esting vornances, � Ithaca aforesaid , and that a notice , of which the annexed is a true from the requuirements of Arti= 1 cle IV, Section , 11 , Parag raph copy , was published in said paper 10 ( building height )_ and Artj�a cle IV, Section 14 (front ,yard u building setback )', of the ,Town;,, of Ithaca Zoning Ordinance;,.•;. for the proposed construction' of a single-family residence to -' be located at 8 Winner's Cir cle, Town of Ithaca Tax Parcel:; No. 6-58- 1 -8. 4, Residence Dis- trict R- 15. The residential` structure proposed has an ex- .i teeet n Ond that the first publication of said notice was on the d-'3 em building height of * 32 fine inches, 30 feet being ' the maximum height per- day of �� C ��� y l 9 �� mitted, and a front yord build-' ing setback- of . 22. 1 feet, -25 feet being required. - ADMINISTRATIVE HEARING (adjourned from October 10 and November 14, 1990), un- der Article XIV, Section 77, of the Town of Ithaca Zoning Or- dinance , for an interpretation Subscribed and sworn to before me , this « day by the Board of Appeals of Ar- /Z title VII , Section 35, ' of said Ot 19 Ordinance Ordinance to determine if any uses permitted in Business Dis- tricts emit din and Ines may be permitted in a Business Dis- trict "D", and further, to deter- mine what sales/uses may be customarily encompassed Notary Public . within a gasoline sales sta- tion . JEAN FORD Said Zoning Board of Appeals will at said time, 7 :00 p. m. , Notary Public Si? f and said place , hear all per-, e of New York sons in support of such matters X10 46544 � � or objections thereto. ' Persons may appear by agent or in. Qualified in Tcfnp,klns County� person. ry� tt� [� (///� Andrew S. Frost COfI' MISSion expires May 31, 17, ,; l Building Inspector/Zoning Enforcement Officer Town of Ithaca 273- 1747 November 23, 1990 •