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HomeMy WebLinkAboutZBA Minutes 1994-05-11 FUM TOWN OF ITHACA TOWN OF ITHACA FINAL , ZONING BOARD OF APPEALS Clerkj )nni ���CA WEDNESDAY , MAY 11 , 1994 The following appeals were heard by the Board on May 11 , 1994 : APPEAL of George M . Dentes , Appellant , requesting a variance from the requirements of Article IV , Section 11 of the Town of Ithaca Zoning Ordinance , to be permitted to construct a two family home with a building height of 34 + feet ( 30 foot maximum height permitted ) at 11 Perry Lane , Town of Ithaca Tax Parcel No . 27 - 1 - 35 . 71 Residence District R- 15 . GRANTED WITH CONDITION . APPEAL of Jerome B . True , Appellant , requesting a Special Approval from the Zoning Board of Appeals , under Article XII , Section 54 , of the Town of Ithaca Zoning Ordinance , to be permitted to add a fifth dwelling unit in a four unit , non- conform- ing multiple residence building located at 1337 Slaterville Road , Town of Ithaca Tax • Parcel No , 58 - 1 - 6 . .1 , Residence District R- 15 . Said building is non- conforming since R- 15 zones permit a maximum of two dwelling units per residential building . DENIED . r Fli.ID 1 TOWN OF ITHACA TOWN OF ITHACA Date- 2 / I .rl 19_ -Y ZONING BOARD OF APPEALS • Clerkr a a I'1(� (� A WEDNE S DAY , MAY 111 1994 PRESENT : Chairman Edward Austen , Vice-Chairman Robert J . Hines , Harry Ellsworth , Edward King , Pete Scala , Town Attorney John C . Barney , Zoning Enforcement Officer / Building Inspector Andrew Frost . OTHERS : George M . & Elsie Dentes , Barbara Little , Gary Wilhelm ( Architect for George Dentes ) , Jerome B . True . Chairman Edward Austen called the meeting to order at 7 : 07 PM and stated that all posting , publication , and notification of the public hearings had been completed and the same were in order . The first appeal to be heard by the Board was as follows : APPEAL of George M . Dentes , Appellant , requesting a variance from the require - ments of Article IV , Section 11 of the Town of Ithaca Zoning Ordinance , to be permitted to construct a two family home with a building height of 34± feet ( 30 foot maximum height permitted ) at 11 Perry Lane , Town of Ithaca Tax Parcel No . 27 - 1 - 35 . 7 , Residence District R- 15 . • Mr . Dentes stated that Gary Wilhelm , his architect and designer , had accom- panied him to this meeting and would be the . better person to answer any technical questions . Chairman Austen requested that Mr . Dentes describe what he wanted to do and why the variance for additional height was needed . Mr . Dentes stated they had purchased a lot on a subdivision and intended to start building as soon as possible . The house will be occupied by Mr . Dentes ' family - - his wife , Elsie , and their three children ; and , in addition , by his mother - in - law , Barbara Little , who was also pre- sent at the meeting . They intend , to have an apartment for Mrs . Little in the basement , and his family now occupies the upper two stories ( first and second floors ) . They asked their architect , Gary Wilhelm , to design that . The plan that Mr . Wilhelm came up with , and the plan they would like to proceed with , calls for a building of almost 34 feet . Mr . Dentes said he thought , at the outset , it ' s hard to have a building with three stories that isn ' t a little over 30 feet . Mr . Dentes stated an alternative to this design would be to have a sunken base- ment with steps down . He said that ' s unsatisfactory for reasons set forth in their application including the fact that it presents drainage problems . Although Mrs . Little is currently quite able , they expect she will live there well into her older years and they ' d like to have maximum accessibility and avoid that kind of sunken basement if they could . Mr . Dentes said he thought that pretty much summarized it , in addition to anything they had stated in the application . Chairman Austen said they noticed it was a fairly level lot , maybe sloping on the back a little towards the east . He asked if that was where they intend to have the basement apartment doors , on the east side . Mr . Dentes replied yes , on the east side which is the lower side of the lot . He also said there won ' t be any building ® beyond the ridge - - there ' s a creek at the south end , and there ' s a distinct edge of the lot before one goes down to the creek . There wouldn ' t be any building over the edge of the flat area . Town of Ithaca 2 Zoning Board of Appeals May 11 , 1994 • Bob Hines asked what the grade elevation to the street line was , from the peak to the street line . Gary Wilhelm replied 982 . 6 ' less 957 ' , so it ' s 25 ' . Mr . Hines said as you stand on the street and look at the house , the highest elevation on the street line is under 30 feet ; it ' s over 30 feet at the rear . Mr . Wilhem said that was correct . Mr . Hines said there isn ' t much of a grade there . Ed King said that the topograph shows a drop of about 10 ' . Mr . Wilhelm replied that , actually , it ' s almost 12 ' . Mr . King said , also , the north elevation ( which would be the front ) shows it ' s 27 - 1 / 2 ' high which is less than the 30 ' lot . Also , the topograph shows that the lot at the side of the house drops 3 - 1 / 2 ' to 4 ' from front to back , so that ' s where you ' re getting the 3 - 1 / 2 ' additional height . Mr . Dentes stated that one thing that doesn ' t show on the plans is that this is a heavily wooded lot , and it is at the extreme south end of the cul - de- sac so there won ' t be any neighbors who have to look over their house . Mr . Ellsworth asked if the woods were going to remain , or would they be taken down during the construction . Mr . Dentes replied that as many trees will remain as they can leave , and the house is really to the left side as one looks at the photos . Mr . Ellsworth said if you take them down to the southeast as you come up the hill , you ' re going to see it because it would be open on to 96 , then ? Mr . Dentes said yes , one would be able to see the house from Route 96 . Mr . Ellsworth said he presumed what was taped and staked yes - terday was their lot . Mr . Dentes replied yes , that ' s right . • Mr . Scala then said that the slope is roughly 101 , but it would be along the length of the house , and , primarily , at the deck according to the topograph and not from back to front of the house . Mr . Wilhelm stated that the lot slopes from south - west to northeast , basically . Mr . Scala asked , then the north side of the house is going to be 10 ' higher than the south side of the house ? Mr . Wilhelm replied that the south end is the garage , and the garage will be at grade at that point . Mr . Scala then asked , and the peak of the house there will be 10 ' less than it is on the north end ? Mr . Wilhelm replied that , on the north end , you ' re actually coming up several feet and that the lowest part of the house would be on the east side . Mr . Scala asked , looking at your topo map , the north end is down to about 946 ' and the upper end is up about 10higher ? Architect Wilhelm replied , it goes from about 947 . 8 ' up to 952 ' on that north elevation . Mr . Scala said , you ' re saying it ' s only 6 ' or 7 ' then ? Mr . Wilhelm said yes , it basically drops around the house . Mr . Scala then said , my question again is that the north end is taller than the end of the garage by about 7 ' or 8 ' ? Mr . Wilhelm said yes , and Mr . Scala asked what the heights were . Mr . Scala said , with the elevations shown here , it only shows back to front and not north to south . Mr . Wilhelm said that was right , and Mr . Scala asked what it was north to south ; that ' s the major slope , not the way it shows here . Mr . Wilhelm replied that Mr . Scala was looking at the north elevation there and , if he were to look at the east elevation , he would see the slopes from the south on the left to the north on the right . Basically what ' s happening is that there ' s a steeper slope in the depth of the garage and then it levels out at the back of the house . Mr . Hines asked if the issue wasn ' t what the elevation was from the standpoint of the neighbors or people driving on the street . He said it looks like it ' s 30 ' around there where most people are going to see it . Mr . Wilhelm replied that was • correct , it ' s level . Mr . Scala said his question was , looking at this drawing , what are the two elevations ? What is the peak here ? ( Referring to the Preliminary East Elevation drawing ) Mr . Wilhelm replied that , at the south end , it would be approx - imately 22 ' ( south end is the left ) . Mr . Scala asked if that was from the peak , not counting the chimney ? Mr . Wilhelm stated that , going from the top peak , it 3 Town of Ithaca Zoning Board of Appeals • May 11 , 1994 would be 24 ' . Mr . Scala then asked what the other end would be , and Mr . Wilhelm replied that he would actually say it would be more like 31 - 1 / 2 ' or 321 . Mr . Frost asked if they saw the line down the middle of the East Elevation sketch that shows 36 ' . Mr . Scala said that the board has gone through other situations with height variation and , in most of those cases , it was due to the slope of the ground . This one is not due to the slope but that it ' s a three- story house . Mr . Frost said , technically , it would be a two- story house by building code definition which utilizes averages . He said that he thought part of what creates this situation is the living space in the basement area which has certain requirements to maintain its ability to be habitable space and that ' s fairly consistent with over the last eight years , perhaps , of height variances . It ' s not an uncommon necessity to have a height vari - ance because of living space in the basement . Slope , certainly , in this area is a more common requirement . Mr . Scala said , nevertheless , this is a three- story house . Mr . Frost said it was a two- story house with a basement . Mr . Scala said , with a basement in which you ' re living . Mr . Frost replied that ' s correct - - by building code , if the floor above had an average height of greater than 7 ' to the finished grade below , then the basement becomes a story . Mr . Wilhelm stated that , on their application for building permit , this is a two- story house and that this house can be built to meet N . Y . State • Uniform Fire Prevention Building Code . He said , in the county , you could build this house without any variance . Mr . Scala said , if this lot were horizontal , the basement is no longer a basement ; it ' s a first floor . Mr . Frost stated that , as long as the ground floor ( if you will ) of the basement is partially in the ground . . . by Building Code definition , it ' s a basement which can mean that much below ground qualifies it as a basement . The code looks at how high the floor above is . If the floor above is more than 7 ' above that basement floor on average , then the building code says now the basement becomes a story . Mr . Scala and Mr . Frost then confirmed that , technically , this is a two- story building with a basement . Mr . Frost then said that the floor level or the basement level has to have an average grade of no deeper than 4 ' . However , you could have a cellar space that ' s habitable as long as one wall for that habitable space is at grade ( which he thinks the east elevation perhaps displays ) as long as the depth end is not greater than four times the height of the space . Mr . Scala said the argument he was leading to was that the house is above the maximum height because a third floor was added . Chairman Austen said no , because you ' re exposing the back end of the basement because it ' s ground level plus a few inches on the front and one side tapers . Mr . Frost stated that the ground story of the east elevation basically is depicting habitable space which is the apartment . He said , if grade was higher , the potential is that it could not be habitable space because it would then be starting to lend itself to being a cellar space which is not habitable space unless you can drop the grade at least to one side or one wall of that living space in that basement at grade with the living space which he accomplishes on this east elevation . And , as long as he ' s not going 50 ' into the • ground in that basement area , it ' s legal habitable space . Mr . Frost stated that the need for windows necessitates that , as well , because you need windows for habitable space . 4 Town of Ithaca Zoning Board of Appeals • May 11 , 1994 Mr . Scala said he had a house like this for thirty - five years which he built , so he was familiar with this and the difference is that they built a third floor which is habitable - - with full height . So the reason it ' s too high is because they have a full third floor . Mr . Wilhelm said he would not agree with that ; it ' s not a three- story house , it ' s a two - story house with a daylight basement in a portion of it . Mr . Hines said it ' s an aesthetic criterion , and Mr . Scala stated that it ' s inconsistent with what the board has done before ; what has been done before has been done because of slopes . Mr . King stated that there is still a four foot slope from the front to the back of this house and that lot slopes four feet - - correction , six feet because it goes from 952 ' down to 946 ' . Attorney Barney asked if this was a finished topograph or at present . Mr . Wilhelm replied that it basically shows the finished grades , and the major portion of the front yard is not regraded . Basically , the subdivision covenants require that you save as many trees as possible and disturb as little of the existing as possible , so that ' s what this has done by sitting the house in at the back of the woods . Chairman Austen opened the public hearing . Since no one appeared to address the Board , the public hearing was closed . ENVIRONMENTAL ASSESSMENT • Chairman Austen read Parts II and III of the Environmental Assessment Form done by Louise Raimondo , Planner I , and asked for comments . Mr . Dentes stated that , in Section 10 , he probably should have also checked the agriculture box . He said that he didn ' t appreciate it when he completed the form , but Mr . Perry is still farming the land immediately to the east of this subdivision . He thinks the land he is farm- ing is Phase II of this development so , in the future , it will be residential and so this does border an agricultural area ( between the subdivision and Route 96 , it is being farmed ) . Chairman Austen then asked for comments . Mr . Scala stated ( this has nothing to do with the application but with the way in which the Planner wrote this ) with regard to C4 of the environmental assessment , it leads you to believe that it has to be con- sistent with the Town of Ithaca ' s Comprehensive Plan . He thought this was out of order because the Comprehensive Plan is not a law . Chairman Austen asked if the Comprehensive Plan had officially been adopted yet . Attorney Barney stated that it was not a law , but that it had been adopted as the Plan for the Town of Ithaca . Mr . Scala asked if they were required to meet that plan . Attorney Barney replied that they were not required to meet it , but it is the overlying plan for zoning and governing of the Town of Ithaca . He continued that it is not a bad idea to try and be consistent with what the comprehensive plan is that represents the Town ' s policy as to what they anticipate . A variance , by its very nature , is something that deviates from what the law is . He stated that the reviewer was just making a comment that this particular application does not appear to be violative of what the comprehensive plan is . Mr . Scala stated he was thinking of it as a clause he would find in there all the time . Mr . King said , not . necessarily , ® that the reviewer is saying that this is within the spirit of the comprehensive plan . 5 Town of Ithaca Zoning Board of Appeals • May 11 , 1994 Attorney Barney said C4 deals with the community ' s existing plans or goals as officially adopted . The Comprehensive Plan was adopted by the Planning Board which is even up to the entity which adopts that , that is , the officially adopted plan . Therefore , the reviewer is just making a comment that this appears to be consistent with it . Mr . Scala stated he thinks they ' re working it into a law . Mr . Hines said there has to be a basis for the zoning of the town , according to state law , you have to have a comprehensive plan and that ' s where that comes in . It doesn ' t really have anything to do with what the Board is doing . Mr . Frost commented that it might turn out that , with some of the discussions with changing zoning , this may in fact be con- sistent with zoning when they change the zoning ordinance . Mr . Ellsworth said it ' s interesting that it just came up and wondered how long it had been adopted . Attorney Barney stated that it had been a couple of months or a little longer . MOTION By Mr . Edward King , seconded by Mr . Robert Hines . RESOLVED , that the Board adopt the recommendations of Louise Raimondo , Planner I and find a negative determination of environmental significance for the appeal by George M . Dentes for the property at 11 Perry Lane , Town of Ithaca Tax Parcel No . 27 - 1 - 35 . 7 , Residence District R- 15 . • With no other comments , Chairman Austen asked for a vote on the motion which resulted as follows : AYES - Austen , Ellsworth , Hines , King , Scala . NAYS - None . The motion was carried unanimously . Chairman Austen then asked if there were any other questions on the proposed building and stated that he had walked the lot yesterday , that it would grade off very nicely to come out from the basement to the east . It looked to him like it would fit the landscape well . With no other questions , Chairman Austen asked for a motion on the appeal . MOTION By Mr . Edward King , seconded by Mr . Robert Hines . RESOLVED , that the Board grant the applicant , George M . Dentes , a variance from the requirements of Article IV , Section 11 of the Town of Ithaca Zoning Ordinance , for the construction of a two family home at 11 Perry Lane , Town of Ithaca Tax Parcel No . 27 - 1 - 35 . 7 , Residence District R- 15 , with a maximum eleva- tion from grade not to exceed 34 ' with the ridge at the east elevation , as depicted in the plans presented , with the following findings and condition : 1 . The proposed construction is in keeping with the general construction in ® the neighborhood of similar residential homes . 2 . This will not have an adverse impact upon any existing homes in the neighborhood . 6 Town of Ithaca Zoning Board of Appeals May 11 , 1994 • 3 . This is conditioned upon the applicant adhering as much as possible with the recommendations of Louise Raimondo , Planner 1 who reviewed the envi - ronmental plan as set forth in C3 of that review . Mr . Dentes will be given a copy of the Environmental Assessment Plan and is to adhere to the plan by preserving the trees as much as possible , protect them , and pre- vent erosion and see that fill material does not get deposited in the ravine to the east . 4 . That the benefit to the applicant cannot really be achieved by any other feasible method and that the variance is not substantial . A vote on the motion resulted as follows : AYES - Austen , Ellsworth , Hines , King . NAYS - None . ABSTAIN - Scala . The motion was carried . The second appeal to be heard by the Board was the following : APPEAL of Jerome Be True , Appellant , requesting a Special Approval from the • Zoning Board of Appeals , under Article XII , Section 54 , of the Town of Ithaca Zoning Ordinance , to be permitted to add a fifth dwelling unit in a four unit , non-conforming multiple residence building located at 1337 Slaterville Road , Town of Ithaca Tax Parcel No . 58 - 1 - 6 . 1 , Residence District R- l5 . Said building is non-conforming since R- 15 zones permit a maximum of two dwelling units per residential building . Mr . Ellsworth stated that he had very recently bought business , house , and auto insurance from True Insurance and asked Attorney Barney if that represented any con- flict . Attorney Barney did not believe it represented a conflict on their ethics or laws but said , if Mr . Ellsworth felt uncomfortable , he could decline to participate . Chairman Austen asked Mr . True if the remodeling had already been done . Mr . True said that ' s correct , and the history of how that came about is in the 4 / 15 / 94 letter he had submitted with the appeal . Chairman Austen asked if all the apartments are rented at this time . Mr . True said yes , they are . Mr . King asked just when the other apartment was added . Mr . True said it was the summer of 1990 . Mr . King asked if it was the year after he made the purchase . Mr . True said that was correct , after he had problems . Mr . King asked if he had any building permit in the meantime . Mr . True replied that he had not , and perhaps he was in violation there because perhaps any construction would require a permit but it was of minor cost to have made this change - it was approximately $ 200 . Mr . King asked Mr . True , didn ' t you think the addition of another apartment would be significant ? Mr . True replied no , he didn ' t - he said that he came to the Town of Ithaca seeking help in that what he would like to do , what he was trying to do , and what he would like to continue to do is to reduce what has traditionally been the number of occupants in that residence . That was his ® goal when he put a wall into what was a large , four-bedroom apartment and divided it in half . That allowed him to rent to either two people in one apartment or , has been the case , one person in one apartment and one in the other ( reducing the number from four to two at times ) . Town of Ithaca Zoning Board of Appeals • May 11 , 1994 Mr . True said he thinks zoning can only control the number of units a person has as opposed to the number of occupants in a dwelling . If he ' s wrong in that case , he would be more interested in having some type of limit placed on the number of occupants in the dwelling , but he ' s not sure that ' s possible . Mr . King stated that you can do that as an owner any time in the leases . Mr . True said yes and , in fact , he does . Mr . Frost asked what the current occupancy in each of the first floor apartments was . . . Mr . True replied one and two . Mr . Frost asked , and upstairs ? Mr . True replied one and one . Mr . Frost asked , and downstairs in the basement ? Mr . True replied one , and so the current occupancy of the whole residence is six . Mr . Frost asked what the number of bedrooms is ( and added that he thought that was shown on the floor plan ) . Mr . True replied six . Mr . Scala said on the sketch , he counted six bedrooms , three living rooms , and five bathrooms . Mr . True said that ' s correct , that he bought the house in 1989 but he thinks the history was long and involved before he purchased it . He said that he knew it was a single family home way back when , and when it was converted into apartments , he didn ' t know . Mr . Frost stated there was a building permit on file upstairs from 1957 and that he had related to that in his letter to Mr . True dated March 1 , 1994 . The 1957 building permit had a notation which said " Add two more apartments " ; and from Mr . Frost ' s understanding at that time and what he could estab- lish from county assessment is that there were two , then two more were added in 1957 by way of permit , which brought us to four . Since that was pre- 1960 when our zoning ordinance strived to specify the number of units you can have in residential zones , Mr . Frost said it seems to be ( based only on the information he has at this time ) that it would be non- conforming , and perhaps legally non- conforming . Though we had zoning in 1954 , it just included the residential zone and didn ' t limit the number of residences or units in a residential zone per building lot . Mr . True said if one were to walk through the house , you can see where there were even more . He said , on the second floor on the two apartments up there , you can see where there was a door that has been boarded over . And , in the basement , there appears to be something that was blocked up that went into another side of the base - ment . Mr . True said his point is that entrances to various rooms on the property have changed prior to his owning it . He said it ' s kind of a " cobb job " house , and he ' s not a fan of that at all . Mr . Scala asked if Mr . True wanted to end up with two or three apartments . Mr . Frost said five apartments . Mr . Frost said he had listed some safety concerns in his March 1 , 1994 letter to Mr . True . Mr . True said all of these had been met . Mr . Frost said that , beyond the fire safety ( unless Mr . True had done the work without the building permit ) , there were five separations . The basement apartment , which is shown in the photo which was passed around to members of the Board and Mr . True , has some non- conforming features to the apartment which would not meet the current standard for safety ; particularly the bedroom , which does not have an egress window out of it . Mr . Frost stated , however the Board decides - - perhaps as part of the approval should it be given - - that some upgrade should be done to the basement ® apartment . Mr . True stated he was definitely amenable to that , and any life safety is a concern to him . 8 Town of Ithaca Zoning Board of Appeals • May 11 , 1994 Mr . Hines then said , before too much more time is spent on the merits of the application , we have an Environmental Review which may pose a problem because the Planning Staff has made recommendation that the Board should find a positive determi- nation of environmental significance . Mr . Hines asked if Mr . Frost had seen that , and Mr . Frost replied that he had and that they were attempting now to let people know ahead of time and that they had informed Mr . True on Monday ( 5 / 9 / 94 ) . Mr . Hines asked Mr . True if he knew what that means . Mr . True said no , in fact , he had been somewhat confused with the whole process , that he had certificates from the past and so on but , obviously , they weren ' t the right ones to have . Mr . Hines said if you get into a full -blown environmental review and spend alot of time doing that , whatever that may entail , and then come back before this board and your application for five units lacks merit , you ' ve wasted alot of time and resources . Mr . True asked if that was the procedure - - to first meet the environmental ? Attorney Barney said he would like to address that , and that there are two procedures : One is , if this Board chose to go along with the reviewer ' s recommendation and find a significant environmental impact in this , if that was the only thing done , then the next step ( if you wish to proceed with your application ) would be to do the environmental impact . Attorney Barney said he had taken the position , and it was not without some slight debate in his office , that - - if this Board is of a mind to not grant the variance - - this Board can act without the envi - ronmental activity . He said that the environmental law cuts in when a governmental • body chooses to approve or fund an action and , if this Board is disapproving an action , he doesn ' t believe that you have to go through the environmental process . Attorney Barney said the other procedure could be , if the Board is of a mind to talk about the merits and if the decision on the merits tonight would be negative , then we could shortcut the process . He thought the Board could go either way . Mr . Frost said and , in the process , Mr . True has a better understanding of what his chances are of getting approval . Mr . Hines stated he did not think it was worthwhile going through a rather cumbersome procedure if the chances aren ' t really significant . Mr . Hines said his feeling , after reviewing the file , is that - - unless Mr . True has some extremely compelling information in addition to what is contained in the documents - - he doesn ' t have a very great case . So why put him through the environ- mental review process ? Attorney Barney said he believed this Board has done that in the past on one or two occasions . Chairman Austen suggested that they just talk about the environmental review and then they could vote on whether we want to make it a negative or positive review . Mr . Hines said if you make a positive declaration of environmental significance , the hearing stops and then if Mr . True goes out and does alot of work , then comes back in front of the board and we vote him down , we ' ve wasted two or three hours of our time and alot of hours of his time and he ' s not going to get the release anyway . Mr . Frost said perhaps what the Board should discuss are the merits of granting an approval . He said he was getting a sense that the Board may not grant the approval ; let ' s discuss that and , if there ' s dissension , maybe you want to go back to ® the environmental assessment . Mr . Hines said he agreed . Mr . Frost said that was what Attorney Barney was saying - if , - consistently , it seems like you ' re going to deny the approval , then let ' s discuss it now . 9 Town of Ithaca Zoning Board of Appeals • May 11 , 1994 Mr . Scala asked apart from the environmental impact , is it now approved for four units ? Mr . Frost stated that the zoning for that R- 15 zone permits two-unit houses only ( single family or two family homes ) . Mr . Scala said that ' s the question he ' s asking : he has four and it ' s approved ? Mr . Frost said it ' s nonconforming , it existed prior to the zoning requirements . Mr . Scala asked if five was worse than four and why . Mr . Frost said because now we ' re increasing the use of a building in a zone that only permits two family homes . He said , if there was a gas station in that area and they wanted to add another gasoline island . . . Mr . Scala said right , and if he proved that economically he can ' t survive with fewer units , then he ' s got an argument . Mr . Hines said no , he doesn ' t . Mr . King said no , we tell him to take his gas station elsewhere . Mr . Scala said , in this instance , there ' s nothing presented on the economic side . Mr . Hines said it wouldn ' t make that much difference to him . Mr . Scala said it might not make any difference to you , but he ' d go out of business if it ' s four units - that ' s a possibility . Mr . Hines said he ' s not sure it ' s at all relevant but that was up to the Board . Mr . Scala said , hardship is hardship and that ' s always relevant . Chairman Austen said he thought they ' d have to look at some hard figures to do that . Mr . Scala said right , and there ' s nothing presented here and that he was looking for the rationale as to why five is worse than four . Mr . Frost said correct me if I ' m wrong , Attorney Barney , but part of it is a reasonable return and it ' s rel - ative to something else . Mr . Scala said you have a cost of operations and we haven ' t seen anything , so there ' s no basis to your idea that five is worse than four because • it should be two . He said there ' s some form of logic for you in that . Attorney Barney said the question is where the burden of proof lies . A burden of proof doesn ' t lie on the part of this Board or the town to demonstrate , but it lies on the applicant to demonstrate economic reasons that he can ' t get a reasonable return at four and which he would perhaps be able to get at five . Mr . Scala said he had four because he could make more money . Attorney Barney said if he had five , six , or seven , he could make even more money . Mr . Scala said he agreed and , somewhere along the line - we don ' t know why or where , somebody drew it at four . Attorney Barney said quite frankly , he ' s not clear as to how it got from two to four . He said he looks at the age of the building , and it doesn ' t look like it ' s been there since 1954 and he thought that area has been zoned since 1954 . Mr . Frost said let ' s not forget that the permit he ' s got on file for this prop- erty clearly says that the pe apartments * Mr . Hines said those houses were built in the late 401s . Attorney Barney asked what the date of the permit is . Mr . Frost said 1957 . Mr . Hines said he would say that the house was probably in place 10 years before that . Mr . Frost said even if it was in place in 1957 and they were building and then decided to get a permit for two more apartments , it seems clear that there was a residence there ( whether it be one or two is not clear ) but , when you say two more apartments , it kind of makes him think I ' ve got two and now I ' m adding two more . Attorney Barney said except that he wasn ' t sure what the authority was in 1957 to go to four units in an area that he assumes , from day one , has been zoned an R- 15 or R- 30 . Mr . Frost said he could get the back zoning ordinances but it seems that we permitted residential zones in 1954 ; we did not pro- vide limitations for the number of units in residential zones until 1960 . Mr . Frost said he had the 1954 ordinance and the 1960 ordinance and could let the board see them if they wished . Attorney Barney said he thought in 1954 , they talked about a one family house and a two family house . Mr . Frost said he may be wrong in what he was reading and he could retrieve them from his desk and then went to do so . 10 Town of Ithaca Zoning Board of Appeals • May 11 , 1994 Mr . Hines said , however it came about , the use sought requires a variance . Attorney Barney said it requires a special approval because it ' s an enlargement of a nonconforming use . Chairman Austen said the other thing is that there ' s a parking problem on this particular road . Mr . True said there are five parking places off street and that one of the tenants chooses not to use his spot about half the time . Mr . Hines said if you have five units , you would have to have six parking places , he thinks . Mr . True said that could be and that he ' d talked to Mr . Frost about what was involved in either enlarging or adding more parking and he got the impression , not a great deal . He said Mr . Frost thought it would be a good idea if he sent him a let - ter before he did it but that Mr . Frost said there was no zoning problem in doing it . Mr . True said with regard to the economics , he did not make a point of that argument because he wanted to stress his desire to be a good neighbor of the neigh- borhood and that was and is his goal . He said it ' s his opinion that the dividing of this four bedroom apartment in half made him a better neighbor in that area . Mr . Hines said , but you could have rented to fewer people without doing anything and you made a choice about how you wanted to use the house . Mr . True said economics are involved in that . To rent to two or three people in that spot , he wasn ' t sure that ( as they had mentioned ) economics wouldn ' t be involved . Chairman Austen asked Mr . True if he got a copy of the environmental assessment and if he had read it and seen the recommendations of George Frantz , the Assistant • Town Planner . Mr . True said yes , he had it right in front of him and was Chairman Austen asking if he had any comments on it . Chairman Austen said yes , he ' d listen to his comments . Mr . True said the statements bothered him because , actually , he was trying to do the exact opposite and this makes it sound as though adding a fifth unit is going to cause problems to the neighborhood and significant adverse impacts to existing traffic patterns . Mr . True said at the time that there were four people in the apartment and they each had their own car , there were more vehicles , more coming and going , the police were there often to deal with problems and that ' s what seems to happen when you have unrelated people in a single unit . Mr . Hines asked , how do you get that many people anyway and isn ' t three unrelated people in a unit the limit ? Mr . Frost replied that you can have two unrelated people . Two unrelated people can constitute a family and , in a single family residence , you can have two unrelated people as the family , they can have a boarder , giving you three . In a two family home , you ' re allowed to have two families , no boarders . Mr . Hines said , but what about each apartment ? Attorney Barney said , for apartments , you put down the family per dwelling unit so you have two per dwelling unit but the problem is that this is not in a multi - family zone , this is in a resi - dential zone , so the ordinance doesn ' t really contemplate what you can do with four units in a two family zone . Mr . Hines said he understood . Mr . Frost said other than if he claims he had rented to five people in each unit ; say 20 , when he had four units and he has the right to do so because he ' s been renting to 20 people for the entire building since 1957 - - we amortized that by saying by the year 2000 whatever , you now have to bring that into compliance . Mr . Hines said he understands that there ' s no rationale for this . Attorney Barney said he should know better than to argue with Mr . Frost , that he appears to be right because he now has in front of him the 1954 ordinance where they limited the residences in the residence zone without indicating the number of dwelling units . 11 Town of Ithaca Zoning Board of Appeals • May 11 , 1994 Mr . True asked because he felt it was headed that way , if he was allowed four units ( and said maybe it would have to be Mr . Frost that answered this ) and suppose he was declined here so then he didn ' t have four units , this house has been cut up so many different ways and there are existing doorways and such that have been boarded up - if he put his thinking cap on and came up with some scheme to go back to four units - his goal in terms of being a good neighbor and having as few people as possi- ble living in this dwelling , what would be involved in his possibly opening up a doorway that has been blocked . For example , the second floor is two , one bedroom apartments and what if he made that one unit ? Mr . Frost replied that a building permit would be needed to make any change where it ' s going to affect life safety , for example . He said when you start changing doorways , you ' re affecting egress . You ' re affecting egress as it relates to other dwellers in the building who are going through a common hallway , for example , and , by moving doors around , you ' re also having the potential to affect fire separations that exist between units which is one of the things which they had discussed and is noted in Mr . Frost ' s 3 / 1 / 94 letter as a concern . Mr . Frost said his feeling , and he wrestled with this , is to see that basement apartment done away with . He said he would not necessarily have a problem doing away with the basement apartment and keep- ing the one Mr . True converted without a permit as is , as long as he got a permit to increase the fire ratings between the separation walls , so you ' ve still got four units in the building but you have just kind of re - ordered where they are located . To continue to do that , Mr . Frost felt that any change Mr . True made would still have • to go back to this board because you ' re making a change to a nonconforming building . The zoning ordinance says that , to make a change to a nonconforming building , you need a special approval to do so . Mr . Frost said his desire is to see the basement apartment eliminated because of the egress concerns he has , particularly from the bedroom . Mr . True asked if he could connect the basement to the existing apartment above . Mr . Frost said you would then be increasing the size of those units ; potentially increasing the bedrooms and increasing the number of people , and that means you ' re making a change to increase the use of the building which brings you back to the zoning ordinance again . Mr . Frost said what the motive sounds like is that you want to have more bedrooms . Mr . True replied , no that was not his goal . Mr . Frost asked , then why would you want to open the basement to the first floor and keep the first floor apartment that you just created ? Mr . True said because he could perhaps have a laundry room shared by everyone . Mr . King asked what the situation was of Mr . True ' s leases or tenancies there now and Mr . True said everyone is August 15th . Mr . Scala asked if that was five people . Mr . True said that was five units . Mr . Scala asked if it was five units or five people . Mr . Frost said there were five units , six people . Mr . Scala said , assuming we would allow four units to continue and not five , how many people would that be related to ? Mr . Frost said he saw a maximum of eight unrelated people , two in each of the four units , though it ' s not inconceivable , if Mr . and Mrs . Jones come in ( for example ) and they had eight kids , there may be some limitations in terms of the space but you would have more people yet . • Mr . True again stated that there were six people on the property now , with five units . Mr . Scala said where Mr . True got into trouble was having the fifth unit . Mr . Frost said it was due to putting a fifth unit in on a nonconforming building without obtaining zoning board approval . Mr . King asked if there was some way the 12 Town of Ithaca Zoning Board of Appeals • May 11 , 1994 board could take a straw vote on granting or not granting the variance but still keep the application alive to permit Mr . True to come in with his changing plans for our approval without having to go through another re- advertisement . Attorney Barney said he was not clear on the change and asked , if Mr . True goes back as four units and he changes the configuration of those four units ; other than building code requirements , Attorney Barney was not sure that Mr . True needed to come back before the board at all . Mr . Frost said no , unless he ' s adding bedrooms . Attorney Barney said the language reads that no nonconforming building areas shall be extended or enlarged , so it ' s a question of whether you ' re extending or enlarging a nonconforming unit . If you have four units and you ' re staying with four units , it ' s getting close to whether it ' s an extension or not . Mr . Frost said , if he came in and wanted to put on a room addition assuming he had the space ( Attorney Barney said that would be an extension ) or if he wanted to convert the bedroom and somehow was capable of making four additional bedrooms ' to go with an additional bed- room for each unit , thereby increasing the potential density of that perhaps . Mr . King said incorporating the basement as part of one of the units is an extension . Attorney Barney said , except that it was already incorporated as part of a unit before the improper conversion . Mr . True said it was it ' s own unit . Attorney Barney said , that ' s correct . Mr . Frost said the fifth unit was created by taking the first floor and dividing it into two and the problem we have is the basement again . • Mr . Frost said to the best of his knowledge and the information he has , it would appear to be legally nonconforming . You could not take this and build it today under current code and probably could not do it under the code in effect that the town adopted in 1960 which would have required egress windows for bedrooms and so forth . Mr . Frost said his concern with the basement , if you look at the floor plan , there ' s a bedroom in the corner and the only way out of the bedroom is through a doorway into the kitchen and up the stairwell unless you could get out some other window . If the kitchen is engulfed in flames , there is no way out of the bedroom other than a 16 " high window in the bedroom . Mr . Frost said you could take a ladder and , hopefully , get out of the area but windows today would be required to have at least an opening that gives you four square feet of area with a minimum dimension of 18 " so you can either go out on your belly or go out on your side and get out of the window . Mr . Hines suggested that Mr . True be given the opportunity to work up his case or his plan a little more carefully . Either he ' s going to change what his plans are or develop some arguments which might be more persuasive . A straw vote to support a motion for adjournment might be appropriate . Mr . Frost said , as an example , if Mr . True eliminated the basement and changed it into a laundry room . Mr . Hines said , if he wants to do something different than what he ' s proposing and he comes in and pro- poses approval for a five unit structure which requires some showings which I don ' t think he ' s prepared to sustain at this time . He said you are suggesting that he might change his plans and so forth . He said rather than taking this further , why don ' t we just see what the sentiment of the board is and , if it ' s that Mr . True really doesn ' t have the strongest case for the proposal which he ' s submitting , then the matter could either be adjourned or , somehow or other , he could be given the opportunity to reformulate his plan or prepare different evidence or supplemental evidence to support it . Mr . Hines then said that Mr . True has a rather burdensome environmental , and the board may make a negative determination if he has different evidence and that there ' s no reason , just because the planning staff found positive , that the board also would . 13 Town of Ithaca Zoning Board of Appeals • May 11 , 1994 Attorney Barney said that the application right now is to maintain five units and , in fairness to Mr . True , if the board sense here is that there is not a great likelihood that five units will be approved , he would suggest that the board indicate that to Mr . True and perhaps there should be a straw vote on that issue . If , indeed , he wants to come back with some modification , Attorney Barney thought that would require a re- advertisement and a different environmental analysis because this one is really directed to the maintenance of five units as opposed to four . Mr . Hines stated that there was nothing lost by an adjournment and Attorney Barney said no , except that we get a rather fuzzy issue as to is it an adjournment or should we better advertise it next time . Mr . Hines said no , if Mr . True and Mr . Frost decide that it should be re- advertised , then they can do that and don ' t need the board ' s approval to do so . Mr . Frost said , for example , if the board indicated that it was not willing to see a fifth unit and Mr . True wants to come in with some financial statements to show why he has to have this , then clearly he may want to entertain that . If , on the other hand , the board ' s feeling is that you would deny it , Mr . Frost would personally have no problem giving him a permit if Mr . True chose to turn the basement into a laundry room without sending him to the board . If Mr . True wanted to take the basement and increase the size of the apartments upstairs , then Mr . Frost said he would leave that to the board to let him know whether Mr . True needs to •come back . Mr . Hines said that would require another application . Mr . tHines .: asked ,Chairman Austen if he wanted to solicit the opinions of the • board - members - and Mr . :.Austen replied yes , he would . like to . Mr . Frost asked Mr . True if he followed what . was going on . Mr . True .replied yes and no , in that if he were to turn the basement into storage or a laundry , then he would have four units . Mr . Frost said , ,then you haven ' t increased the size of .any bedrooms so he would have no problem allowing Mr . True to do that unless the board states that they do not agree with that . Mr . True asked if that would require board approval . Mr . Frost replied that he didn ' t believe he would send Mr . True to the board in that case , however , if he wanted to take the basement apartment and open a door to one of the units upstairs to give them more bedrooms or living space , he would then send Mr . True to the board because you ' re increasing the intensity of the use of any one of those apartments . Mr . Frost did not think that providing a laundry room or storage area for the four apartments that Mr . True had without changing the size is not inconsistent with any other home that has storage and laundry facilities so he would not send Mr . True to the board just to create storage or a laundry down there . Mr . Ellsworth said that he was going to abstain but asked if he could restate this to , hopefully , make it clear for everyone . If no one is living in the basement as they are now which Mr . Frost says is a safety issue , then Mr . True could make the laundry or storage area and eliminate the safety issue . Mr . Ellsworth continued that , if you put in more parking , then it looks like you get rid of the environmental impact issue . Mr . King stated that , if Mr . True eliminates the people living in the basement , then he has only four units . Mr . Ellsworth asked if Mr . True goes back to four units , does he even need to be here ? Mr . Frost said no , unless he was going to add additional living space , for example , by increasing a two -bedroom apartment to a six-bedroom apartment by combining with the basement apartment . Mr . Frost said there ® is also another issue which has not been discussed and that is the need to put a sprinkler system in retrofit by 1998 . 14 Town of Ithaca Zoning Board of Appeals • May 11 , 1994 Attorney Barney said , why doesn ' t the board address the issue of the five units and see how the board feels about that because he felt it was not necessary to go into other issues at that point because , if the board does not approve the five units , everything else is going to be moot . Attorney Barney suggested that the board address that issue for right now . Mr . Hines stated that , based on the application and the evidence which has been submitted on the table tonight , he would not support the granting of a special approval for five units . Mr . Scala stated that he would not be in favor of an increase from four to five units and said that the board had not discussed it , but some plan has to be put forward as to what Mr . True is going to do about parking and all other aspects of management of the building . Mr . King stated he would vote against five units . Chairman Austen said he would also vote against five units . Mr . True asked what would be a strong argument to allow five units . Mr . Hines suggested that there were 130 lawyers in Ithaca who would be happy to talk with Mr . True . Attorney Barney said that he was not sure any of them would be able to find an argument strong enough to persuade the board , however . Mr . True asked if economics were an argument . Attorney Barney asked Mr . True where he lived now . Mr . True replied the Town of Lansing ( out past McDonald ' s ) on Alice Andrew Drive . Mr . Barney said that was a very nice residential area and the question is , how would you feel if somebody were to have a five unit apartment house right next to yours on Alice Andrew Drive in Lansing ? Mr . True said that he understood that point exactly , and Attorney • Barney said that is the issue they ' re facing here . You ' re in an area that is zoned one family or two family and you ' re already at four ( which is double what is permitted ) , and you ' re asking to go to another 50 percent beyond that . Mr . True stated that his argument was to reduce the number of people . Attorney Barney said that may be , but you ' re clearly violative of the spirit of the ordinance right now , albeit perhaps legally , before the fifth unit , you ' re worse with the fifth unit . It ' s a difficult case for anyone to make before the Zoning Board of Appeals to say you want to more than double the number of units that are allowed under that zoning . Mr . King said that the next owner might not be as considerate . He said Mr . True has to realize that twelve out of the fourteen nearby family homes are single family homes ( including Mr . King ' s ) . He said only two of them are double family homes , and then there ' s yours which had four and now has five units and this appears to dissolve the character of the neighborhood . Mr . True said he was confused and asked how many unrelated people can live in a home . Mr . Frost said you can have two unrelated people in each unit - . four units , eight people , five units , ten people and you can also rent to a family of fourteen ( that ' s the traditional family ) . Mr . True asked if , when he bought the apartment house . and there were then four unrelated peo- ple in that unit , they were in violation of the law . Attorney Barney replied , very likely . Mr . Frost said that , also , some of the zoning had been somewhat modified . Attorney Barney asked when Mr . True made the purchase , and Mr . True said 1989 . Attorney Barney said he wasn ' t sure when the modification was done , but it was right around that time . Mr . Frost said that one of the things they had changed was where a two family home used to be able to have boarders ; the change was made around 1990 so that now a two family home is allowed to be occupied by only two families and no boarders . This was done around 1990 to 1991 so was after Mr . True ' s purchase . 15 Town of Ithaca Zoning Board of Appeals . May 11 , 1994 Chairman Austen asked Mr . True if that had helped him any . Mr . Hines asked if Mr . True would consent to an adjournment . Mr . True said yes , but he was just wonder- ing how to go on from then . Mr . Hines said that Mr . True would have to sit down and discuss this with Mr . Frost because the board was not supposed to give him advice about how to proceed . Mr . Frost stated that he was not going to give him advice either in terms of how to plead hardship . Attorney Barney said that he was wondering if the board should go ahead and take formal action on the five units and that , if there is new evidence being produced , Mr . True can always return on the grounds of new evidence and resubmit . Otherwise , this issue would just be sitting in limbo for an indefinite period of time . MOTION By Mr . Edward King , seconded by Mr . Pete Scala . RESOLVED , that the Board deny the applicant , Jerome B . True , a Special Approval from the Zoning Board of Appeals to be permitted to add a fifth dwelling unit in a four unit , non- conforming multiple residence building located at 1337 Slaterville Road , Town of Ithaca Tax Parcel No . 58 - 1 - 6 . 1 , Residence District R- 15 based on the following findings : 1 ) Based on the fact that the existing dwelling with four units is out of ® character in this neighborhood of single family and two family homes . 2 ) That increasing the number of units to five dwelling units in this building would further exacerbate the difference in the character of this building from the others in the neighborhood . Chairman Austen asked if there was any further discussion and there was none , so he asked for a vote on the motion which resulted as follows : AYES - Austen , Hines , King , Scala . ABSTAIN - Ellsworth . The motion to deny the Special Approval was carried . Attorney Barney said this would not stop Mr . True from coming back if he has a really persuasive argument with new evidence or if he wants to come back for a recon- figuration in some fashion with four units . He said this just means a closure to your application and Mr . True said that he understood . Mr . Frost said if Mr . True chose to change the basement to storage or common laundry areas , he was not inclined to make Mr . True come to the board and stated if the board agreed , that would be helpful , because otherwise he would send Mr . True back . Chairman Austen stated there was a laundry room marked in the basement now and asked Mr . True what that was . Mr . True said that was a laundry only to that one ten- ant with room for a washer and dryer . Mr . King said , in Mr . Frost ' s opinion , if what Mr . True proposes does not increase or potentially increase the occupancy , then Mr . True did not have to come back in front of the board . 16 Town of Ithaca Zoning Board of Appeals • May 11 , 1994 With no further business , Chairman Austen adjourned the meeting . • Y Janda M . McLaughlin Recording Secretary Edward Austen , Chairman • FINAL• TOWN OF ITHACA ZONING BOARD OF APPEALS NOTICE OF PUBLIC HEARINGS WEDNESDAY , HAY 11 , 1994 7 : 00 P . H . By direction of the Chairman of the Zoning Board of Appeals NOTICE IS HEREBY GIVEN that Public Hearings will be held by the Zoning Board of Appeals of the Town of Ithaca on Wednesday , May 11 , 1994 , in Town Hall , 126 East Seneca Street , ( FIRST Floor , REAR Entrance , WEST Side ) , Ithaca , N . Y . , COMMENCING AT 7 : 00 P . M . , on the following matters : Appeal of George M . Dentes , Appellant , requesting a variance from the requirements of Article IV , Section 11 of the Town of Ithaca Zoning Ordinance , to be permitted to construct a two family home with a building height of 34+ feet ( 30 foot maximum height permitted ) at it Perry Lane , Town of Ithaca Tax Parcel No . 27 - 1 - 35 . 7 , Residence District R- 15 . Appeal of Jerome B . True , Appellant , requesting a Special Approval from the Zoning Board of Appeals , under Article XII , Section 54 , of the Town of Ithaca Zoning Ordinance , to be permitted to add a fifth dwelling unit in a four unit non- conforming multiple residence building located at 1337 Slaterville Road , Town of Ithaca Tax Parcel No . 58- 1 - 6 . 1 , Residence District R- 15 . Said building is non- conforming since R- 15 zones permit a maximum of two dwelling units per residential building . Said Zoning Board of Appeals will at said time , 7 : 00 p . m . , and said place , hear all persons in support of such matters or objections thereto . Persons may appear by agent or in person . Andrew S . Frost Building Inspector / Zoning Enforcement Officer 273 - 1783 Dated : May 3 , 1994 Publish : May 6 , 1994