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HomeMy WebLinkAboutZBA Minutes 1999-07-15 myWN of murA TOWN OF ITHACA ZONING BOARD OF APPEALS �-�-- THURSDAY, JULY 15. 1999 c l ono �nF cd 7 : 00 P. M . APPEAL of Hollis N . Erb , Martin and Susan Shefter, Appellants , requesting an interpretation of Article II , Section 3 . 5 and Article VII , Section 34 of the Town of Ithaca Zoning Ordinance , as to whether or not a restaurant with a "drive-through" service is permitted use in a Business District "C". APPEAL of Rowe Restaurants Inc . , Robert W . Rowe , Appellant , requesting a special approval from the Zoning Board of Appeals under Article VII , Section 34 of the Town of Ithaca Zoning Ordinance , to be permitted to construct a Burger King restaurant in the East Hill Plaza , located at 1010 Ellis Hollow Road , Town of Ithaca Tax Parcel No . 62=2- 1 . 22 , Business District C . APPEAL of Rowe Restaurants Inc . , Robert W . Rowe , Appellant , requesting a variance from Section 5 . 02- 1 and 5 . 03=4 of the Town of Ithaca Sign law, to be permitted to place a 24 square foot projecting sign on a mansard roof fagade ( 15 square foot unit) and a 25 foot high freestanding sign (20 feet height limit) in the rear yard (placement in the front yard required) at the proposed Burger King restaurant in the East Hill Plaza , 1010 Ellis Hollow Road , Town of Ithaca Tax Parcel NO . 62 =2 - 1 . 229 Business District C . • 70WNitOFTWHACATOWN OF ITHACA ZONING BOARD OF APPEALS � 1 � �� • THURSDAY. JULY 15. 1999 Clark. 7 : 00 P. M . PRESENT: David Stotz, Chairperson ; Harry Ellsworth , Board Member; Ronald Krantz, Board Member; James Niefer, Board Member; Kirk Sigel , Board Member; Andrew Frost , Director Building/Zoning ; John Barney, Attorney for the Town ; Jon Kanter, Director of Planning ; Mike Smith , Planner. OTHERS : Douglas Clearo , 95 Brown Road ; John M . Murray, 95 Brown Road ; Joseph Leeming , 609 Mitchell Street ; Thomas J Reimers , 3C Wildflower Dr; Hollis N . Erb , 118 Snyder Hill Road ; Cynthia K. Sherman , 42 Sparrow Crest ; Edith Cassel , 152 Pine Tree Road ; Muriel Brink , 206 Tudor Road ; Charles Geisler, 517 Ellis Hollow Road ; Steve Landau , 331 Hunt Hill Road ; Robert & Roberta Kohut , 214 Eastern Heights Drive ; Robin Seeley, 332 Hurd Road ; Everett Carter, 10509 Unity Lane Potomac MD ; Richard Stumbar, Bixler & Stumbar; Lawrence Turchin , Traffic Solutions ; James Napoleon , Syracuse ; David Long , 8 Sanctuary Drive ; Robert Rowe , Rowe Restaurants Inc . ; Beverly Livesay, 149 Snyder Hill Road ; Fred Wilcox, 109 Juniper Drive ; Eva Hoffmann , 4 Sugarbush Lane ; Antonie Blackler, 14 Nottingham Drive ; Cathy Valentino , 110 Eastern Heights Drive ; Ellen/Oskar/Robin Schmidt , 8 Genung Circle ; Lauren Bishop , Ithaca Journal ; Martin & Susan Shefter, 145 Pine Tree Road ; Nancy Krook , 113 Pine Tree Road ; Tom Murray, 380 Pine Tree Road ; Mary Colucci , 207 Tudor Road ; Blythe Baldwin , 149 Pine Tree Road ; Bruce & Martha Turnbull , 118 Pine Tree Road ; Christopher Jennison , 118 Pine Tree Road ; Steven & Martha Robertson , 1655 Ellis • Hollow Road ; Elizabeth Harness , WHCU ; Shelley Blackler, Knitting Machines Etc ; Mary Squyres , Knitting Machines Etc ; Gordon Rowland , 1166 Ellis Hollow Road ; Betsy Schissel , 214 Tudor Road ; Martin Hatch , 696 Snyder Hill Road ; Diana Yee , 206 Tudor Road ; Gary Stonn , Lansing ; Frank Santelli , 115 W . Buffalo ; Ruth Mahr, 103 Judd Falls Road ; Nancy Goody/Gregg Bell , 113 Penny Lane ; Mark Pederson , 126 Judd Falls Road ; Rod Howe , 126 Judd Falls Road ; Scott Tucker, 131 Pine Tree Road ; Faith Chase , 106 Comfort Road ; Peter Salton , 206 E Upland Road ; Cynthia Kramer, 207 Bryant Avenue ; Tom Seeley, 332 Hurd Road ; Fay Gougakis , City of Ithaca ; Amanda Ufford , 147 Honness Lane ; Jacob Williams , WVBR ; Maralyn Edid , 22 Renwick Hts Road ; Cande Carroll , 176 Genung Road ; Jacqueline Wakula , 204 Pine Tree Road , Chairman Stotz led the meeting to order at 7 : 07 p . m . , stating that all posting , publication , and notifications of the public hearings had been completed and were in the following order : APPEAL of Hollis N . Erb , Martin and Susan Shefter, Appellants , requesting an interpretation of Article II , Section 3 . 5 and Article VII , Section 34 of the Town of Ithaca Zoning Ordinance , as to whether or not a restaurant with a "drive-through " service is a permitted use in a Business District "C" . APPEAL of Rowe Restaurants Inc . , Robert W . Rowe , Appellant , requesting a special approval from the Zoning Board of Appeals under Article VII , Section 34 of the Town of Ithaca Zoning Ordinance , to be permitted to construct a Burger King restaurant in the East Hill Plaza , located at 1010 Ellis Hollow Road , Town of Ithaca Tax Parcel No , 62 -2- 1 . 22 , Business District C . • APPEAL of Rowe Restaurants Inc. , Robert W . Rowe , Appellant , requesting a variance from Section 5 . 02- 1 and 5 . 03-4 of the Town of Ithaca Sign Law, to be permitted to place a 24 square foot ZONING BOARD OF APPEALS PAGE 2 JULY 1511999 • APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED projecting sign on a mansard roof fagade ( 15 square foot unit) and a 25 foot high freestanding sign (20 feet height limit) in the rear yard (placement in the front yard required) a the proposed Burger King restaurant in the East Hill Plaza , 1010 Ellis Hollow Road , Town of Ithaca Tax Parcel No . 62=2- 1 . 22 , Business District C . Chairperson Stotz stated that the Zoning Board of Appeals would hear the three appeals at once since they are related issues . Mr. Ellsworth stated that for personal reasons he would be abstaining from this appeal . He would like his fellow board members to consider this issue as if it were in their backyard . They need to consider 3 other projects that have been approved in the East Hill Plaza . Bill Seldin , 102 Northview Road , stated that he would like to address the interpretation by the Zoning Officer to include Rowe Restaurants on the agenda . We suggest that it was correct to include the applicant for this reason . There is a section of the code that talks about a restaurant or other place of serving food as being a permitted use . There is a distinction in the Zoning Ordinance between banks and banks with drive-throughs . With respect to every other generic use in the Zoning Ordinance , this is in the "C" district as a business use . In District "C", everything from District " B" is included . District " B" includes retail uses without limitation . The Zoning Ordinance was not there to , distinguish between businesses with or without drive-throughs . Some of the best evidence lies with the Town Board who recently passed a moratorium on drive-through businesses in the Town of Ithaca for 9 months . They did this on the heals of the Burger King application . The Town Board recognized it as a permitted use and therefore , the moratorium were created to study rather there should be additional similar uses . If there is any ambiguity in the Zoning Ordinance that must by law be construed in favor of the applicant or owner of the property. The Zoning Ordinance is meant to restrict the use of the property. The wording of the ordinance is construed most favorably to the owner/applicant in the event of any ambiguity. All restaurants are only permitted with the special use process . There are 8 different criteria that the applicant must satisfy. If the criteria are satisfied , then the use is permitted . That will not happen unless the Zoning Board of Appeals is satisfied . The applicant has taken a long road to get here . They have been before the Planning Board several times and have had meetings with staff . They have received Preliminary Site Plan Approval . Throughout the process , it has been assumed that this is a permitted use . It is recognized that there are the 8 criteria . Mr. Seldin stated that they would try and address each criterion . Mr. Seldin stated that they have with them David Long , a real estate appraiser. He will speak to the notion of any devaluation that might occur. They have two traffic consultants and engineers . The first criteria that the applicant must satisfy under Section 77 subdivision 7 of the Zoning Ordinance is " (a) The health , safety, morals and general welfare of the community in harmony with the general purpose of this ordinance shall be promoted". Is the proposed use in harmony and thereby promoting the intent of what was enacted many years ago ? They are in a business district and with special approval they have the ability to conduct this use . With respect to the Comprehensive Plan , it came many years after the Zoning Ordinance . When it was enacted , it ZONING BOARD OF APPEALS PAGE 3 JULY 15 , 1999 APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED specifically said that this particular area , East Hill Plaza and Judd Falls Plaza are shown as commercial general business use . This designation by the Comprehensive Plan is in harmony with the Zoning Ordinance . In the Comprehensive Plan it defines commercial general business use as retail stores , services and offices . The Comprehensive Plan has three designations of commercial , neighborhood , community, and lakefront . The East Hill Plaza and Judd Falls Plaza is community commercial . There are three drive-through banks , Courtside , motel , Citgo , video store , expanded P&C , car wash and bowling alley. These businesses do not service the immediate area . It services people from outside the immediate neighborhood . The notion of a Burger King is consistent with what is at the East Hill Plaza and is promoting the Zoning Ordinance . The second criterion that needs to be met is subdivision (b) , "The premises are reasonably adapted to the proposed use that such use will fill a neighborhood or community need". Bob Rowe , Rowe Restaurants Inc . , stated that he is the applicant . He looked at the Burger King buildings that are available . Smaller and larger buildings were looked at . When they evaluated the demographics of the area , one-mile radius , they settled on a mid-sized building for this site . This building has 72 seats , drive-through window with an adjustable sound system . There are public restrooms available . The building complies with all Americans with Disabilities Act provisions . Thirty- five people will be employed . They will serve breakfast , lunch and dinner. Business hours will be a . m . to 11 : 00 p . m . They will have the standard menu , a vegetarian menu , broiled products and .6 : 00 salad products . Their average check is $3 . 77 for their meals . Fifty-five percent will come through the drive-through . Forty-five percent will come over the front counter. The 55% are not necessarily new people that come only to the drive-through . It is people who have chosen to have their food delivered through the drive-through . Mr. Seldin stated that the Zoning Ordinance does require them to fill a neighborhood or community need . Within a one-mile radius of the proposed site , there are 4 , 120 residents . This is people who live in the area . This figure grows during the day with Cornell University and business establishments . This is not a numbers game . When they talk about need , they are talking about what would be the only fast food establishment in the immediate area . It serves a need in the community. This is a function of convenience and economics . They did not ask for a moratorium . The opponents of this project proposed it . The moratorium excluded the present applicant . Subdivision (c) , "The proposed use and the location and design of any structure shall be consistent with the character of the district in which it is located" . There are over 20 commercial enterprises in business district "C" located in and adjacent to the East Hill Plaza . Several of which are regional and national businesses . The Burger King site is located between the Citgo and Trust Company. The planning staff felt that the building is in character with the East Hill Plaza fagade . The proposed landscaping will minimize visual impacts . They stated that they did not anticipate significant adverse aesthetic impacts with Burger King . There is not a consistent architectural theme to the East Hill Plaza . Burger King will blend in with the surrounding area . The applicant did try and design and building with a color scheme that would allow it to blend in to the area behind it . • ZONING BOARD OF APPEALS PAGE 4 JULY 15 , 1999 APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED Mr. Seldin stated that David Long will be addressing subdivision (d ) , "The proposed use sha1 not be detrimental to the general amenity or neighborhood character in amounts sufficient to devaluate neighboring property or seriously inconvenience neighboring inhabitants" . David Long , David Long Appraisal Co . , stated that he is a licensed real estate broker and a New York State General Certified Appraiser. He has been doing business in Ithaca for 27 years . He stated that he has done about 5 , 000 appraisals and has looked at about 15 , 000 other appraisals . He has looked at this proposal . Mr. Long stated that he has walked the property and has walked through the neighborhood . The addition of Burger King to the Plaza will not have an affect on the value of the residential real estate in the neighborhood . Adding Burger King to an existing commercial development is not going to have an affect on the surrounding community. This has been based on experience . Mr. Long stated that he has also looked at the property values where there are other shopping areas and fast food restaurants in the Northeast . Around these area is residential properties . He has not seen properties devalue because of commercial development . The properties near the Pyramid Mall in the Village of Lansing are seeing increased property values . There is clear evidence by looking at other neighborhoods . During the appraisal process , if there is a loss of value , he needs to make a deduction for it somewhere . In none of the appraisals that he has done at East Hill , has he made deduction for the East Hill Commercial Plaza . He would not make a deduction if Burger King were established in the Plaza . The values of real estate are affected by market conditions . Someone building a restaurant does not affect them . • David Herrick , TG Millers Engineers , stated that he would like to address theeneral amenity Y of the site . The landscape plan has been provided the board in their packet . The site has several mature trees , but it is short on diversity and numbers . They are adding a substantial number of plantings to this property. They have worked out with planning staff what the plantings should be and where they should be located . In response to Preliminary Site Plan Approval , they have made modifications to the landscape plan to reflect concerns of the Planning Board . Mr. Herrick stated the Mr. Rowe is proposing to collect and oxidize the emissions that are given off by the charbroiled process . Using a catalytic converter will do this . Catalytic converts are not in all Burger King restaurants . The light fixtures proposed are consistent with the shoe box style in the plaza parking area , and Trust Company. The fixture lights will be lower than the lights in the Plaza . The feature of the fixtures is to minimize glare and spillage off site . These lights will be turned off at 11 : 00 p . m . The only lights that will be left on are the security lights along the building . Mr. Rowe stated that he has attempted to address the litter issue in different ways . He tried to adopt the highway, but they have been adopted . He has asked Town Officials if they have adopt-a- highway programs , but they do not exist at this time . Mr. Rowe stated that they would walk through the area on a daily basis to pick- up trash . He will assign people to do this daily. He does not have a problem with it being a condition of approval . Mr . Rowe stated that he can also structure a formal • plan stating when and where there will be litter pick- up . ZONING BOARD OF APPEALS PAGE 5 JULY 15 , 1999 APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED Mr. Seldin stated that subdivision (e) , "The proposed access and egress for all structures and uses shall be safely designed" , will be addressed by Mr. Herrick, Mr. Herrick stated that within the Plaza along the south end of parking , they have worked out with planning staff and the Town Engineer the installation of landscape islands . These islands have been on a drawing board for several years . They have been expected to be completed by Cornell University as part of other improvements within the Plaza . They are proposing a barrier between the Citgo station and the driveway to the P&C . The intent is to formalize turning movements . People will not have to use the outer loop road of the Plaza . The islands will help to control movements as they get to the outer loop road . Another mitigation measure is to reduce the size of the opening between the Plaza and the gas station . The location of their entrance and exit has been selected by listening to concerns from previous proposals and Town staff. There is access on the privately owned East Hill Plaza entrance drive and the parking lot . James Napoleon , Registered Professional Engineer in State of New York , stated that he is a consulting transportation engineer. He also teaches courses in traffic and transportation engineering and planning at Syracuse University. Mr. Napoleon stated that he has reviewed the site . Subdivision (f) states , "The general effect of the proposed use upon the community as a whole , including such items as traffic load upon public streets and load upon water and sewerage systems is not detrimental to the health , safety and general welfare of the community". A detailed traffic impact study was submitted to the Town . The Town Planner upon review commented that the traffic study was adequately done . Traffic safety within the Plaza will be enhanced . There will be traffic calming by the fact that the outer loop road will be better defined . Speed will therefore be limited . The narrowing of the connection between the Citgo station and the Plaza will be narrowed . This will force drivers to travel more slowly as they make the cross over. There will be turns that are required . There will be limited opportunities for drivers to pass other drivers . This does not currently exist . Without the presence of these islands at the end of the parking rows , there is a poorly defined ring road in the Plaza . There will adequate and safe visibility between persons driving the ring road and those entering/exiting . This includes pedestrians . Landscape islands will separate and define areas where vehicle movements are being encouraged and where vehicle movements are not being encouraged . When a pedestrian goes to cross the ring road , they will realize that something has changed . Drivers will also notice the difference . The islands will help to define the road from the parking lot . There are defined walkways . The adjacent bank has a sidewalk that has been created from one side of the bank property to the other. The sidewalk connects to the driveway. It is a proposal of Burger King to continue the sidewalk across the Burger King property. A defined crosswalk will be established to connect the two sidewalks . It is at an intersection . It is not a mid-block crossing . Drivers will expect pedestrians to cross at that point . The restaurant will not jeopardize traffic safety on the adjacent roadways . The proposed design does not include additional curb cuts to any public highways . All access to the restaurant will ZONING BOARD OF APPEALS PAGE 6 JULY 15 , 1999 APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED be internal to/from the existing Plaza . New shortcuts will not be created . There are no avenues for high - speed traffic that will be created by this restaurant . This will be an appendage within the East Hill Plaza . Capacity problems will not be created by the restaurant or traffic generated by the restaurant . He performed analysis over and above those contained in the report . This was done by looking at the driveway accesses to the Plaza and at the intersection of Pine Tree Road and Ellis Hollow Road . He assumed that there would be no patrons using the restaurant whom arrive at the restaurant using a bus , no one walks to the restaurant . There are over 40 trips made to TCAT to the Plaza daily. Another assumption is that no current users of the shopping center will drive into the Burger King restaurant . The object is to build the volume of traffic that will be new to the area . He is assuming that all Burger King traffic will be new. When he did his analysis , there was no change to the level of service at any of the facilities because of this additional traffic. There have been comments made about the fact that in the traffic analysis that an assumption was made that some of the traffic would be new to the area and some of the traffic would be existing . To eliminate any question , he eliminated the existing traffic. The level of service does not change . The quality of operation is the same . There are other uses that could be placed on this parcel that are permitted by right . The Zoning Board of Appeals permits these without any special action . Mr . Napoleon stated that he has analyzed the affects of the Burger King traffic . The greatest impact is during the P . M . peak on a weekday. This is when the commuters are on their way home . •This is when the potential impact of the restaurant is the greatest . He then looked at the P . M . peak our generation of other land uses that could locate on this parcel . Mr. Napoleon found that a 10 , 000 square foot walk- in bank would generate more traffic than the proposed restaurant . A 10 , 000 square foot video store would also generate more traffic than the proposed restaurant . A video rental store would not have to be 10 , 000 square feet . It would only need to be 4 , 185 square feet to generate as much traffic as the proposed restaurant . A walk- in bank would only need to be 3 , 982 square feet to generate as much traffic as the proposed restaurant . The result is that he must conclude that the traffic impact of this proposed restaurant is not significant . There will be new traffic generated because of it. The impact of that traffic will not be significant or detrimental to the health , safety, and welfare to the community. Mr. Seldin stated a business in the Plaza that can be there of right can generate more traffic than a business that needs special permit . The Town under those circumstances might not be at liberty to deny an application for special permit on that basis alone . Mr. Herrick stated that water and sanitary sewer systems are not a concern for the Town or the Town Engineer. There is amble capacity in the Town ' s distribution system as well as the treatment system at Bolton Point . This is equally so for the Town 's sewer system and sewage treatment at SJS. The issue is addressed , but it has not been of concern . Mr. Herrick stated that the next concern is subdivision (g) , "Lot area , parking and loading facilities are sufficient for the proposed use" . This parcel is more than adequate in terms of gross • square footage for what is being proposed . They do not come close to the allowed maximum building square footage of percentage of coverage that the Zoning Ordinance allows . There is far ZONING BOARD OF APPEALS PAGE 7 JULY 15 , 1999 . APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED more percentage of landscaped area remaining after the building and parking lot is constructed . All of the structures are in compliance with the yard setbacks . There are no requests for areas or use variances . The number of parking spaces proposed is 40 . There is an area set aside if there is a future need for more parking . This restaurant will have deliveries twice a week. Mr . Rowe can schedule these for non -peak hours . The last of the criteria is (h ) ; " Natural surface water drainage ways are not adversely affected". In addition to the Traffic Impact Study, Mr. Rowe prepared a detailed stormwater management study. The Town Engineer that the implementation of the stormwater management plan that has been included in the proposal will adequately address the drainage concerns . There will not be a significant impact as result of construction . Mr. Seldin stated that there is a concern that if you allow a Burger King to be established in the Plaza , it will create a strip . This will not happen . The Town of Ithaca has passes a moratorium on drive-through businesses and commercial use for 9 months . He understands that for 9 months the Town is going to conduct a study. At the end of that study, if the Town feels proliferation or any other remedial means needs to be enacts , they may propose amendments to the Zoning Ordinance to resolve that . The applicant's lease with Cornell University has a restrictive covenant that prohibits Cornell University from renting or leasing to any similar type business on Cornell University property. This applies to the property across the street , in the Plaza , and down to Route 366 . The area around • the Plaza is residential . If anyone were to come in , they would need to come before the Zoning Board of Appeals to convince the board that there is no other use for the property. The combination of the moratorium , residential area , and the restrictive covenant prevent this . Mr. Herrick stated that he is referring to drawing C01 . They are asking that the double-faced logo sign law, be located in the rear yard as opposed to the front yard . This location is more appropriate given that the access to and from Burger King is from the Plaza side . The sign is conformance with square footage . They are asking that 25 feet in height be approved . The second component of the sign appeal is the construction of " Burger King" as a projecting sign on the mansid roof . This would be facing Ellis Hollow Road . The projecting sign is a standard size . It is 22 . 4 square feet . The requirement is 15 square feet . They are not greatly exceeding the square footage . It will also be the only sign on the exterior of the building . Mr. Seldin stated that the applicant has expressed great respect for a contrary view. They applaud the openness of each procedure that they have been through . The different issues raised have been legitimate and deserve everyone's concern . He hopes that once the public has spoken , that they have an opportunity to address their concerns . Chairperson Stotz asked what the operating hours are . Mr. Rowe stated that the operating hours are from 6 : 00 a . m . to 11 : 00 p . m . The hours may be changed from 7 : 00 a . m . to 10 : 00 p . m . It will be determined once the store is open . Chairperson Stotz asked what the hours are of his other restaurants . i ZONING BOARD OF APPEALS PAGE 8 JULY 15 , 1999 • APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED Mr. Rowe responded that they are open 7 : 00 a . m . to 10 : 00 p . m . During the summer on Friday and Saturday nights they are open until 11 : 00 p . m . The stores are never open earlier than 6 : 00 a . m . and later than 11 : 00 p . m . Chairperson Stotz asked if there are plans to change the hours . Mr. Rowe replied that there are not plans to change the hours . Chairperson Stotz stated that the definition of a neighborhood is not clear. What is your definition of a neighborhood and how it was decided upon ? Mr. Seldin answered that their view of the neighborhood is the immediate vicinity surrounding the East Hill Plaza and Judd Falls Plaza . Chairperson Stotz asked how far out does the neighborhood extend . Mr. Seldin stated that it could not be defined exactly. The Comprehensive Plan has been mention and referred to by their opponents . The 3 commercial areas mentioned in the Comprehensive Plan have been assigned to the Plaza . The Plaza is more community commercial than anything else . The motel , service station , bowling alley, and car wash do not classify as just ` serving the immediate neighborhood . Chairperson Stotz stated that the concept of neighborhood is critical in this situation . I find it hard to believe that commercial development has not decreased property values . How is the neighborhood defined ? Mr. Long responded that the neighborhood as he sees it is anything within 2 or 3 miles . This is down to Ithaca Road , State Street and Route 79 , Ellis Hollow area and Route 366 . In every appraisal , there is a section where he has to address the neighborhood . He has to describe where the neighborhood is . There is not an adjustment for location . Chairperson Stotz asked if Mr. Long felt that there would be no devaluation of property within the boundaries just described . Mr. Long stated that there would not be a devaluation of property values . Mr. Sigel asked if the cue length of the driveway could be addressed . Mr. Napoleon stated that they have a cue length for a minimum of 6 cars proposed . They have looked at the market area and the expected volume of traffic. A drive -through facility such as this has a capacity of handling approximately 60 cars per hour. They want to have at least 3 to 4 spaces cueing between the order station and the pick- up window. They would like another 2 or 3 beyond that . When people come to a drive-through , they look to see how long the line is . If the line to long , then they choose to go in or go elsewhere. There is a self- limiting factor to the cue length . It ZONING BOARD OF APPEALS PAGE 9 JULY 15 , 1999 • APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED is unlikely that the cue length back- up into the Plaza ring road . The cue length is very unlikely to back- up to the service road . It would never back- up to Ellis Hollow or Pine Tree roads . The design of the site is adequate for the expected traffic . Mr. Sigel stated that he has observed cue length around 12 during the lunch hour. If people wait that long at other restaurants , then they would wait that long at this restaurant . Mr. Napoleon stated that Mr. Rowe has gone through an analysis of the traffic that is in the vicinity of the East Hill Plaza . The analysis includes the population of the neighbors . He then has sized up the amount of business from that . He is not going to build a too small facility or a facility that does not make sense from a business standpoint . The volume of traffic that can be expected at this restaurant can be handled by the design proposed . Chairperson Stotz opened the public hearing at 8 : 31 p . m . There will be a time limit of five- minutes . Richard Stumbar, Bixlar & Stumbar, stated that Mr. Seldin brought up an interesting issue during his presentation . He asked for rebuttal time . He indicated that he received the submissions that were made by Mr. Stumbar. In an effort to create openness , Mr. Stumbar gave Mr. Seldin a copy of everything that they had given the board . They did not have the same courtesy. There was . a stack of new materials presented to the board from the applicant . This includes a new traffic study. Mr. Stumbar asked if they could have time to review the new submissions . Roberta Kohut , 214 Eastern Heights Drive , stated she is a member of the broad neighborhood . She did not hear the health , safety issues discussed or any air quality impacts addressed . Since this proposed restaurant is visible by 360 degrees , there is no construction proposed to disguise the fact this is a fast food establishment . Businesses in the East Hill Plaza and Judd Falls area had to make their signs smaller. Burger King should not be allowed to a variance for larger signs . Jackie Wakula , 204 Pine Tree Road , stated that they can currently see the Trust Company Bank building . They are concerned about looking at a commercial establishment that will be open from 6 : 00 a . m . to 11 : 00 p . m . in colors of red and yellow. They are concerned about the health , safety and traffic issues . Nick McCastros , 378 Snyder Hill Road , stated that he has visited Burger King many times . He has never been able to get through a drive-through in a minute or less . This includes being the only car in line . Nancy Goody, 113 Penny Lane , stated that for 7 years she was the campus planner at Cornell University. She has a Historic Preservation Masters degree . While she was at Cornell University, one of her responsibilities was signage . The enforcement of Cornell University standards and • creation of standards . She is concerned that this applicant would be allowed a variance to have ZONING BOARD OF APPEALS PAGE 10 JULY 1511999 APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED signage in a neighborhood plaza . Ms . Goody stated that there is not a need to have signage bigger than is allowed unless they plan to promote their business on the East Side beltway. Many years ago when the Town approved East Hill Plaza there were planting to be installed . They have never been installed . Why should this night be different? The applicant is stating that this will not generate traffic . No businessperson would start a business that relied on traffic that therefore did not have traffic . Many people would be less concerned if Burger King would build in the Plaza or without a drive-through . She is concerned that one of the board members felt that he had to excuse himself from this issue . Time and time again people are asked to excused themselves if they have a conflict . He does not own the Burger King . Why should he have to excuse himself? The applicant mentioned that they would be providing public restrooms and is ADA compliant . They have to do this . It is a requirement . This is another sprawl idea . The Plaza can be redesigned . Mr. Krantz stated the board member that decided not to vote was a self- imposed decision . It was not due to any pressure of this board or any other board member of official of the Town . It was his personal decision . Charles Geisler, 517 Ellis Hollow Creek Road , stated he is concerned with the service road to TCTC , CFCU and Burger King . The board is responsible to make sure that the permit reforms to the .health , safety and welfare , as the Zoning Ordinance requires . He cannot imagine a worse plan than having another driveway into that short strip of road . Peak hour banking and peak hour eating tend to coincide . The green buffer around East Hill Plaza does not need a facility that will congest the small service road . Robert Kohut , 214 Eastern Heights Drive , stated that he conducts research on the effects of air pollution on plants . His research deals with impact and impact assessment . This business is based on traffic. Without the drive-through the applicant would not proceed with this project . The information that was heard did not have data in it . There were no numbers in the assessment of impact . Without some understanding of the volume of traffic, how it flows , and the impact in terms of numbers, it is not an impact assessment . Mr. Napoleon 's view that there is no impact has no meaning in this assessment . Cindy Kramer, 207 Bryant Avenue , stated she and her neighbors will experience a great impact from a Burger King with a drive-through . Children need to cross Ithaca Road and Mitchell Street to get to Bell Sherman Elementary School . Breakfast would be a busy time . She is concerned about young children walking to and from the school . Mitchell Street does not appear adequately as an impact area in the traffic report . It is important to look at the business aspect , community aspect , and how children will need to deal with it . Burger King has brought up the issue of community need . They should look at the storefront that is currently available for use . If there is a community need , then there is a way to address the need . A storefront restaurant will not have the same impact on air as a drive-through restaurant . It is hard for anyone to guarantee that there will not be an impact on property value . Many people do look ZONING BOARD OF APPEALS PAGE 11 JULY 159 1999 APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED at noise and pollution when looking for homes . Location is a key factor in buying a house . Decisions are made looking at immediate concerns , rules and regulations . Long-term impacts need to be looked at . Ed Franquemont , 108 McIntyre Place , stated the Town is on the crust of making massive changes to the traffic patterns . They have gone through an academic exercise to study the traffic impacts on the existing roads . Less than a month from now, a series of proposal will be presented on how to change those . He wished the Planning Board had recognize this earlier and deferred any decision until there was a clear picture of what the road structure would look like and what the traffic flow would be like . If this is approved , he hopes that the recommendations from the NESTS proposal . Burger King is proposing standard signs for their business . Many restaurants have responded to needs of communities to keep businesses more consistent with the expectations of the citizens around them . Boards need to ask the developer to modify their designs from the standard plan that many people find offensive . Shelley Blackler, Knitting Machines Etc , stated that she considers this her neighborhood shopping center. The people who this shopping center impacts do not necessarily live within walking distance . This does affect her business . When she started her business , the one variance that she had to get was for the sign on the front of the building . It is hard to tell where the store is . There is a large outer wall that she would like to have a mural drawn on . It would also have been nice to have • freestanding sign to indicate the store . She would love to have a lot of signage . Why should the Town favor Burger King ? Ms . Blackler stated that she is not suggesting that everyone be allowed to have large signs . She grew- up down state . She lived around farms . Each year another strip mall was built . The shopping malls were then beginning to die . There were empty storefronts . A lot of them were knocked down , asphalted over and condominiums were built . The green never came back . It is not a nice place to live . When someone chooses to live in a small rural Town , there are certain disadvantages . Restaurants and services are not at readily available . People choose this . Martha Robertson , 1655 Ellis Hollow Road , stated that it is not the prerogative of the applicant to tell the board what the Plaza should be classified as . It is up to the Town to decide . She stated that this is her neighborhood based on the litter that she sees in her yard . Most people through their wrappers 2 or 3 miles down the road . People have talked about the neighborhood and community need . It is convenient for people with young children . Children grow-up and the fast food restaurants are still there . It is a short time period in the life of a family, but a long time period in the life of a community. The need for this restaurant would be met by a store in the store line . Safety is a major issue . The senior citizens do not have a safe way to travel to the Plaza from their apartments . The drive-through will make matters worse . This will require senior citizens to make extra trips across a dangerous parking lot . The ring road will not help the problem that exists in the major open space of the parking lot . ZONING BOARD OF APPEALS PAGE 12 JULY 15 , 1999 APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED Gregg Bell , 113 Penny Lane , stated he has a Master' s degree in Urban and Environmental Studies . He has been involved with planning issues for many years . The applicant made a comment that they are serving needs in the community. It was illustrated by how Burger King helps community organizations . Mr. Bell stated that he has consulted with three-fund raiser for non -for- profit organizations . None of the organizations are aware of any contributions from Burger King . Mr . Napoleon made interesting comments . There is a technical definition of level of service . The level of service is defined as an A, B , C , or D. They are very specific definitions . Mr. Napoleon stated that there would be no erosion in the level of service . That does not mean that traffic will remain the same . The level of service will get worse , but will be in the same category. Cornell University has an academic planning and academic historic preservation program . They teach people how to be planners . There is a major disconnection between the teaching versus the Cornell University real estate office . Cornell University is not operating as an educational institution when they come before the board . They are operating as a private for profit developer. They are ignoring the teaching that is going on . It is what they teach , not what they practice . The applicant has come before the board with descriptions of signs , and what color their bricks are. They have gone through the process of segmentation . Within recent months , urban sprawl has become a major national issue . The Vice President made a proposal on livability as a new agenda . • People are starting to make major issues of urban sprawl . Joel Harlan , Dryden , stated that he goes to Burger King and McDonalds . Many senior citizens like to go there to have coffee and talk. It is clean at the Burger King and McDonalds in Dryden . No one wants growth in this community. Cornell University and Ithaca College see all the growth . Do you think that it is good for their neighbors ? East Hill Plaza will be taken over by Cornell University and their massive buildings . Cornell University needs to be exposed for what it is . Tom Murray, Courtside , stated he does not see a reason for the Zoning Board of Appeals to deny this application . It is the responsibility of the board . The codes and variances dictate that the Town needs to move forward regardless of public out cry. The process is in place . It cannot be changed at the 12�' hour because on group get up . Many of these people live around his business . He understands their concerns , but does not necessarily agree with all of them . Mr. Murray stated that it is unnecessary for a business owner to be put through this ordeal in order to establish a business that will contribute to the community and meet a need of some people . Cornell University did not renovate the parking lot . This is an opportunity to get this done . Many people are complaining that they have a lot of litter in their yards now. If this energy was put into a neighborhood policing to pick- up the litter and makes the effort to educate others . It should not be put off on the business . A lot of the litter is there for sanitary protection . Wrappers are required . The consumers must take responsibility for the litter. Everyone's definition of a neighborhood is different . One half a mile from the Burger King location is the first house in most directions . Pine Tree Road is one of the most active roads in the Town of Ithaca . Nothing is going to change that . This is a good location for • Burger King so that people do not have to drive elsewhere . ZONING BOARD OF APPEALS PAGE 13 JULY 1511999 • APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED The level of business expertise that has been expressed in regards to how Burger King should run their business is disingenuous . Many times people have told him how to run his business . Until your time and money is on the table , you do not have a right to say. The applicant has met the requirements . Let him move forward . The moratorium is a win for those who do not want business in their backyard . It allows time to reevaluate and make appropriate changes . Mr. Murray stated that he hopes the board will vote in the favor of the applicant . The board has a responsibility to citizens and business members to uphold the rules . He found the question of rather or not to trust the applicant out of order. This gentlemen has done nothing to be treated this way by the board or community members . He is a tax paying businessperson . He is doing what he can to run his business , feed his family, employ 35 people and contribute to taxes . Faye Gougakis , City of Ithaca , stated she wants to offer her support to the opponents to Burger King. Cornell University owns this property. How many times when Cornell University is involved in this community are people unhappy? Chairperson Stotz stated that he does not want to go into Cornell University's motivations or why Cornell University is leasing this property. The public hearing is to discuss Burger King , Ms . Gougakis stated that she feels that her statement is related . • Chairperson Stotz stated if the statement is not germane to the issue , then she should let someone else speak . Ms . Gougakis asked how much of Courtside's clientele comes from Cornell University. It is related because Cornell University does not contribute anything to this community. Someone fell in the creek . There was very little manpower to save this person . This is because there is no contributions coming from Cornell University or Ithaca College . People are upset from what this University does , especially with Lake Source Cooling . Chairperson Stotz stated that this is not a public hearing on Lake Source Cooling . This is a public hearing for comments on Burger King . This is not a forum to discuss items other than Burger King , Ms . Gougakis stated that she should be allowed to speak about the main reason for this problem . Cornell University is like a vulture to this community. They think that development and any business can run over this town . Cornell University does not contribute . They make people upset . It is a real issue . Mr. Stumbar stated he is representing the East Hill Citizens Association . People have perceived this group as being against business and fast food . This is not the case . There are many legitimate issues . Their case is based on those issues . It is the Burger King throughout this process that has been very privileged . The Zoning Officer assumed that a fast food restaurant with a drive- through is not different . There is a strong argument in the Zoning Ordinance to show these entities ZONING BOARD OF APPEALS PAGE 14 JULY 15 , 1999 APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED should be looked at separately. They have separate impacts and were meant to be separated . Burger King has overwhelmed boards with information . They overwhelmed staff . It was difficult for staff to make a line by line analysis of the traffic study. This prevented them from being able to point out the many errors in the traffic . The East Hill Citizens Association has been able to do that . They have been able to do it in conjunction with a traffic expert . Town staff might not necessarily be able to pick- up these errors . The misreading and slickness of the presentation are substantial . The traffic impact study is of very little value because of the assumptions made in the study due to the bad and misplaced data . There is a second traffic engineer for the applicant. Conclusions have been made in the traffic study that this impact will be large . It does not state how high the level of traffic will increase or where the level of traffic will increase . It also does not show where the key assumptions are made or what they are based on . Someone can make an assumption in a traffic study of how much traffic generated at the restaurant will be new traffic . This assumption comes from tables that are based on prior studies that were done . The key assumption was how much new traffic would be generated . This was based on a figure out of a table . The table was not presented . The actual table where the number was not presented . It was not presented because there is a range between the end points . The range varies considerably. Assumptions were made to help the case of Burger King . The second traffic engineer was brought in . Some of the things he says about the level of service not changing impeach the report of their expert . He does find level of services changing • based on some of the traffic data . The signing variance request has been made a little at a time . The small requests add up . In the packet , there is a picture of some of the signs . The issue of the signs has not been addressed . There are more than 3 variances needed . There are 3 unaccounted signs . The Sign Ordinance allows only 1 freestanding sign . They were obscured . The menu board has not been included . It is a big billboard . An application for a variance has not been made . The sign that states "drive- through " also needs a variance . The applicant calls the "drive-through " sign a directional sign . The authority does not lye with the person who is putting up the sign to decide whether the sign is a directional size . This board is to determine whether it is a directional or freestanding sign . Directional signs are exempt in the ordinance . A variance for that has not been presented for public hearing . Despite the fact that it is called a directional sign that it is an advertisement for the drive- through . The clearance sign also needs to have a variance . The applicant has also decided that this is a directional sign . When the zoning was done in 1968 , they gave a list and indicated what could be done . The items that could not be done were everything else . The burden was on the person bringing the application to show that they fell within one of the areas of use that was permitted . Restaurants were permitted with special permit . The question is if a restaurant is different from a drive-through restaurant . Since drive-through restaurants are not listed as permitted , then is it allowed ? It depends upon if one looks at a drive-through restaurant as being inherently different from a restaurant . The framers of the ordinance differentiated between a bank and a drive-through bank . They were seen as different types of uses . A drive-through bank caused different problems than a regular bank . In 1968 drive-through restaurants may not have been contemplated . There is nothing in the Zoning ZONING BOARD OF APPEALS PAGE 15 JULY 152 1999 APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED Ordinance or Sign Ordinance that talks about menu boards or the signing of a drive-through . As businesses change , the Town is empowered to change the Zoning Ordinance to add other uses to be permitted . This was never done . Council for Burger King has argued that the moratorium helps their case . It shows the fact that it was not contemplated until now that drive-throughs are different . Looking at the moratorium closely, everyone understands that drive-through restaurants are tremendously different than restaurants without drive-throughs . They require special rules and a special to look at and judge . It is consistent with the intent of the framers of the legislation that such a use would not be permissible until the Zoning Ordinance made it permissible . The moratorium does not take a legal precedent to saying that drive-through are not allowed . It is up to the Zoning Board of Appeals to decide . The various criteria that this board has been asked to review has been put forward by the applicants . The applicant has not addressed the issue of need . Form letters does not make out a case for need . The people who live in areas of reasonable proximity to the Burger King have unanimously indicated a lack of need for the drive-through . Beverly Livesay, 147 Snyder Hill Road , stated that the Zoning Ordinance requires that this board determine that the proposed project will satisfy a community or neighborhood need . The applicant has not provide any information in assisting the board in making that determination . They have only provided the board with an opinion . The evidence is to the contrary. There are 5 diverse establishments providing carryout food service . A petition does not demonstrate need . A proof of need study could provide that information , but none was submitted . The basis of a proof of need is similar to a market study. One typically looks at expenditure potential for restaurants from a combination of census of trade , income , household and population data . Then they need to compare the estimated expenditures generated by the local residents to the estimated sales being captured at the existing restaurants . The drive- by market always represents the fudge factor in putting together market studies . It can be as little as 20% in interior neighborhood settings but as high as 50% at interstate highway interchanges . There are frequent cases where the local resident community is already well served and further need is hard to prove even though there would be ample market support. Consider a fast food location next to a business park at an interstate commuter change . The local residential community could not support a fast food place alone . The potential market support would be huge . Everett Carter, 10509 Unity Lane Potomac MD , stated that he was asked to review the traffic impact study as prepared by the applicant's study. The safety in side the site is a concern . The cut- through driveway to the Citgo Station . There were offers made to mitigate part of this problem by closing the 60-foot gap, but still having small access through the gas station . It is an illegal act to cut through the gas station to avoid going through the gas station . People should not be encouraged to use this driveway. The cueing distance of the drive-through is said to be 150 feet . He has measured it to be less than that from the site plan . According to the applicant's study, it indicates a total of 58 vehicles that would use the drive-through . In a 15- minute period , it results in 15 vehicles per 15 minutes . They state that the average service time is 3 . 5 minutes . At the end of 15 minutes , there are 7 vehicles that did not get served . At the end of an hour, there will be about 25 vehicles that did not get served . The stacking distance is not adequate following standard cueing theories . ZONING BOARD OF APPEALS PAGE 16 JULY 15 , 1999 • APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED Pedestrians that come to Burger King from the shopping plaza have unguided pavement to travel over. People coming from the apartments would have to cross the service road . There are no pavement markings or crosswalks and sidewalks in a few places . The applicant has offered mitigation but it is not enough . The operation is not safe . There are driveways close to each other on the access roadway. It is recommended that drive-through driveways be separated by at least 300 feet . There is only 65 feet from the bank drive-through to this proposed Burger King drive- through . The turning movements are not safe . They are in conflict with each other. New traffic is being sent into an area that has been identified in the Comprehensive Plan and NESTS study as being trouble spots . There is a huge traffic impact . Not huge in numbers , but huge because and existing problem is being exaggerated . There is an inconvenience to the nearby neighborhood . Two-thirds of the peak ours have an increase in level of service . The applicant indicated that there is not a change in the level of service . The applicant also indicates that there will be traffic signal at 366 and Pine Tree Road . It is under study by the State . They have not made a decision . The DIS claims that they have ran an analysis inserting a traffic signal . There is no indication that the State will approve this . An agencies involvement cannot be claimed unless there is funding and decisions have been made . A decision has not been made and there is not funding . There are driveways located close to the road on Pine Tree Road . These people need to back out of their driveways onto Pine Tree Road . Access and egress is not safe because of the driveway location and the inadequate separation between drive-through driveways . The Burger King driveway is fairly close to the intersection of Ellis Hollow. If there is stacking , it can back out onto the service road . It could eventually reach Ellis Hollow Road . This would not happen very often , but it is a possibility. This is a major University with sporting events . After games , people head for the fast food restaurant . Mitchell Street is not considered to have any traffic . The analysis has negative trends on Mitchell Street . There is no explanation of where the negative numbers come from . There are numerous data errors. The are count days and the dates do not make sense . There is one on Monday of Thanksgiving week and one of Saturday of Thanksgiving week . This is when the University is closed . There were Saturday and Sunday counts that were used as weekday counts . Fridays and Mondays are not considered typical weekdays in the traffic profession . They should be Tuesday, Wednesday, or Thursday. They also state that there is less traffic than current after adding traffic . The two automatic counting machines showed that the peak hours were earlier than 7 : 00 a . m . The counts done by the consultant were 7 : 00 a . m . to 9 : 00 a . m . They missed the peak. There was information available to them , but they did not use them to set up their turning movement counts . There is no evidence that the consultant analyzed the impact of Summerhill Apartments . This project has been approved , but is not open for traffic. P&C also have approval for an expansion . Traffic will increase on neighborhood roads and key intersections that have already been identified as problems . The consultant largely ignored safety. Trip generation from the Trip Generation Manual indicates that there are a lot of scatter and small samples . The data needs to be used with caution . With the scatter, it would make sense to ZONING BOARD OF APPEALS PAGE 17 JULY 15 , 1999 APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED have done a scenario with a low value of trip generation and a high value of trip generation . There is a lot of variations in pass- by trips and a lot of scatter. There are very small numbers . The proximity of this fast food restaurant to a major University. It is less than one mile away. Lunch and sporting events will draw people . There will be different percentages of pass-by. Due to the uncertainty of the trip generation and the by-pass trips , the consultant's numbers could be off by 50% . There are substantial safety impacts . Any traffic will reduce the level of service of the street network. It will cause inconvenience to neighboring residents . The DIS does not show health or safety impacts . They have not proved their case . This application should be denied . The board took a brief recess form 10: 15 p. m. until 10:27 p. m. Mr. Stumbar stated that the criteria for Special Approval include impacts on the neighborhood . The general affect on the community as a whole has not been addressed . Edith Cassel , 152 Pine Tree Road , stated that she has lived in her home for 31 years ago . This was before the neighborhood shopping center was proposed . Pine Tree Road is an active road . She stated that she is fortunate that her mailbox is on her side of the street so that she does not have to cross the road . She is fortunate that her driveway is in the back of her house . A neighbor was hit trying to make a left turn into her driveway. They are worried about the increased risks . Pine Tree is at its limit in traffic . At peak times there are 700 cars an hour. There is increased risk for pedestrians and bicyclist . The traffic is unbearable as it is . There is a steady increase in traffic . There is noise from traffic on the road . This happens from 6 : 00 a . m . to 9 : 00 a . m . It does subside in the evening . Traffic subsides at 6 : 00 p . m . Any extra traffic would not help the noise level . There has been an increase in accidents over the past few years . Chairperson Stotz asked where she obtained her information . Ms . Cassel responded that the information was taken from Burger King's traffic study. There were 12 accidents in 1998 . In 1992 and 1994 there were between 4 and 6 accidents . There is a concern about litter. There is a lot of litter along their road . She does not look forward to the trash from Burger King . She urges the board to look at the danger, noise , and air pollution on Pine Tree Road . Look at how unreliable the traffic increases is . Susan Shefter, 145 Pine Tree Road , stated that her home is half a mile from the East Hill Plaza . Traffic has increased dramatically over the past 5 years. The Department of Transportation has data that states that this section of Pine Tree Road has the highest accident rate in the Town of Ithaca for the past year. The neighborhood is deeply concerned about the traffic issue . A drive- through restaurant is different restaurant because of the volume of traffic that is necessary in order to make the business successful . This depends upon a steady stream of people in vehicles . The applicant has stated that an in - line restaurant would not provide enough business for them . They also indicate that in the original traffic impact study 55% of their expected customers will be newly generated customers . People will divert their trips to go to Burger King . ZONING BOARD OF APPEALS PAGE 18 JULY 1511999 • APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED Ms . Shefter stated that she assumed that a drive-through restaurant was not permitted in this area . There are no other drive-through restaurants in the Town of Ithaca . All drive-through restaurants in Ithaca are on Elmira Road . This is the design of the Zoning Ordinance . There is a good case to be made for not including drive-through restaurants . A drive-through restaurant violates the spirit of the Zoning Ordinance . The letter of the law specifically states that all uses not specifically set forth as permitted in a zoning district are expressly prohibited as uses in that zoning district . There is not a mention of drive-through restaurants whereas there is drive-through banks . This is to protect each of the 5 business districts . East Hill Plaza is a business district "C" . All restaurants in this district require special approval . Automobile sale agencies are prohibited unless the vehicles are displayed within the building . Parked cars are outlawed . What does this say for moving and idling cars? Garages for repairs are allowed in business district " D" provided that no repair work take place outside . Ms . Shefter stated that her daughter loved Burger King hamburgers when she was younger . Daily, they drove from Belle Sherman School to the Burger King on Elmira Road for many years . This type of food is available on Elmira Road . Every time they went , there were cars waiting at the drive-through . Cars coming and leaving . She would like to invite the applicant to establish a restaurant within East Hill Plaza . Ruth Mahr, 103 Judd Falls Road , stated the board has a difficult decision to make on this issue . In order to that , the board must decide if this use is permitted . The board must then decide if this proposed use meets the various criteria . Criterion (c) of the Zoning Ordinance "The proposed use and the location and design of any structure shall be consistent with the character of the district in which it is located". The applicant has made the argument that it is consistent with that character. The East Hill Commercial area is best characterized as a neighborhood oriented shopping center. It serves the day to day needs of surrounding neighborhoods . East Hill residents consider this their neighborhood shopping center. It fits the criteria for a neighborhood shopping center as defined by the International Council of Shopping Centers . The Tompkins County Assessor defines it as a neighborhood shopping center. The majority of existing shops are small locally owned business establishments that do serve the needs of the surrounding neighborhoods . There are no other drive-through restaurants in this district . The proposed use is not consistent with the character of the district . The general setting for this district is pastoral . Across the street are grazing horses . The nearest buildings are the bank buildings . They are very conservative in their design . This design is in contrast with the conservative architectural design of the banks . The signs are out of character. The style is consistent with the neighboring Citgo Station . However, the Citgo Station is in commercial district "D" . This is the only project before the Zoning Board of Appeals , but there are a number of other projects that have been approved in this area . The accumulative impacts of traffic are important . Drive-through restaurants are generally located along major highways . The reason is that they rely on by- pass traffic. Burger King has not established a need for this use in this location . They ZONING BOARD OF APPEALS PAGE 19 JULY 152 1999 APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED have not established a need through a need analysis for this use in this location . The question of what constitutes a neighborhood has not been defined . Mr. Long did define it as within 2- miles . It is clear in the Zoning Ordinance and Comprehensive Plan that the Town of Ithaca is mainly a residential neighborhood . Need generated through residents of the neighborhood has not been established . They cannot establish it because a drive-through restaurant must rely on customers outside the neighborhood . Ithaca generally has had an expanding real estate market . Property values are determined by supply and demand . Property values may not go down . They will not rise as rapidly that they would have in absence of traffic. They are no longer primary locations . Greater inconvenience will be experienced in neighborhoods . There will be noise , odor, and air pollution . The quality of life in neighborhoods is a 24- hour problem . The applicant has addressed problems only of peak hour traffic . People live in the are 24-hours a day and are influenced by off-peak traffic . The quality of life is better during off-peak times . Why has the applicant not addressed the problem of off- peak traffic in our residential areas ? The applicant has estimated approximately 100 cars per hour during peak hours as additional traffic. Their traffic consultant has given ample reason that this may be an underestimate by at least 50%. The number could be as high as 150 cars per hour. The daily increase is an additional 600 to 900 cars per day. If it is underestimated by 50% then it is an 1000 to 1500 cars per day. It is a heavy burden of traffic on our public streets and in the neighborhoods . One of the purposes of this ordinance is to lessen the congestion in the streets . This proposal will • not lessen congestion in public streets . The final consideration is rather the proposed use upon the community as a whole is or is not detrimental to the health , safety and general welfare of the community. The applicant has not satisfied that criterion . Mr. Stumbar showed a brief video of Pine Tree Road at the end of June at 4:30 p. m. Mr. Stumbar stated that safety and quality of life are issues . The applicant has not carried their burden of proof with regard to their impacts on the community. Dr. Carter was involved in the production of trip generation data . His conclusion is that the study that was done is flawed . Data was misused and misrepresented . The study was not appropriately done . It did not look into spread . It did not take into account the traffic generated . There are negative numbers . It is clear that the study is not helpful and should not be the basis to grant this appeal . The applicant did try to cover up the traffic impact study when they realized the flaws by bringing in a 2nd traffic consultant . His report is not helpful . It does not provide new information . It is clear that he relied on the same flawed report that was the basis of the initial presentation . Therefore , he has presented evidence that is no more creditable than the initial report . The safety issues go beyond the traffic counts . There are internal safety issues with regard to the layout . The most important are the cue lines . The applicant dismissed the cue problems . The indication was that the drivers would take care of themselves by shying away from long lines . Issues that have been addressed by the applicant were issues that create other problems or issues that have nothing to do with Burger King being granted a license to do their drive-through . The landscape islands can be done without the approval of Burger King . They can be put in separately Burger King. The Citgo situation could and should be cleared up ZONING BOARD OF APPEALS PAGE 20 JULY 15 , 1999 • APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED independent of Burger King . Burger King does not need to be the vehicle to do that . There are two separate safety issues that should be addressed whether Burger King is approved or not . Mr. Herrick stated that there would be a sidewalk in front of Burger King that lined up with the sidewalk from CFCU . Then there would be a crosswalk to connect the sidewalks . There was no comment to how close the crosswalk is to the intersection with Ellis Hollow. There was comment on what would happen to the traffic on Ellis Hollow when people are using the crosswalk . This creates additional problems in an attempt to solve a problem . A decision cannot be made on speculation . The traffic situation is dangerous . The intersections are overloaded . This can only add to the problem . The nature of a drive-through restaurant is to draw traffic from outer areas . There has been a request for 3 sign variances . There was no reason or necessity shown for having a 25-foot sign rather than 20 foot high . They asked for a variance because the applicant did not want to change the size of the signs . They were only going by Burger King ' s standards , not the Town 's standards . The Zoning Ordinance does not accommodate what comes in company packages . Peter Salton , 206 East Upland Road , stated that this does not strike him as an issue that is very revolutionary that this board has to be considering . Mr. Rowe is appealing because his signs need to be larger and he needs special approval . He meets each element of the statue before the board . He is trying to adapt to the business realities . He should be allowed to do so . Mr. Salton stated that he grew up in the Bell Sherman area . This is a waste of time . Pine Tree Road has a lot of traffic . The cars that people are filming are coming and going from Cornell University. Traffic increases . Times change and people move . Hollis Erb , 118 Snyder Hill Road , stated she had hoped that Mr. Rowe would have decided to put a Burger King in the line of buildings of East Hill Plaza . She is concerned about the freestanding restaurant and it being a drive-through . She purchased her home and did everything she could to improve her home . Ms . Erb stated that she loves her neighborhood and the small neighborhood restaurants . She uses all the facilities of East Hill . It is interspersed with rural and agricultural feelings . That may be lost . At some point , a neighborhood changes . The fact of changes suddenly increases or decrease . A drive-through restaurant will be the tipping point for this neighborhood . She picks up the litter in her neighborhood . The bulk of the trash she picks up is fast food discard . In the last 5-weeks she has been paying more attention to the trash . Two mornings she has awaked to a full bag of McDonalds being thrown out the window. The drive-through aspect will be the tipping point for making the traffic unbearable in their neighborhood . The moratorium on drive-throughs is not establishing a ruling that drive-through is approved . The board needs to consider why section 32 . 4c was included in the Zoning Ordinance if drive-through is automatically included . If the board approves Burger King , do not grant variances on the signage . Looking at the location , it is visible in most directions . The line of site is above cars and across a parking lot . Please consider that it is the sum of all impacts that need to be considered . Mary Anne Newton , 378 Snyder Hill Road , stated that this is not a 12th hour decision . The Planning Board 's decision hinged on traffic . This is how the process should be . ZONING BOARD OF APPEALS PAGE 21 JULY 159 1999 APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED Chairperson Stotz stated that everyone has given the board a lot of useful information . It has given the board a lot to think about . The board needs time to consider all information presented . At the conclusion of the public hearing , the board will adjourn and meet again for the purpose of discussion and decision . This cannot be done this evening . Chairperson Stotz closed the public hearing at 11 : 28 p . m . Mr. Seldin stated that Burger King has found itself the repository for all of the ills of have become a community commercial area . Bus lines service the Plaza on a daily and almost hourly basis . This is one of the criteria for community commercial as opposed to neighborhood commercial . Mr . Carter mentioned that there was an illegal use of the turn out of the Citgo . He commented that it was a violation . The Citgo station is not a violation . It is a way for people to get gas and then go to the Plaza . The establishment of a need does not need to rest on statically analysis . It can be the very things that they have offered . People have signed petitions and written letters . Many opponents have stated that a Burger King is desired , but the issue is traffic. The variance that the applicant has asked for was under guidance from the Planning Department and Planning Board . Mr . Napoleon stated that he did verify analysis that was presented in the traffic impact study. A number of calculations were performed . A good number of these calculations were duplicated with the same results . Comments were made about the cueing of vehicles . The capacity of a drive= through window at a fast food restaurant is 60 vehicles per hour. If someone were to sit and count the number of cars that leave the pick- up window in the period of one hour, there will be 60 . That is not the 3 to 3 . 5 minutes that each vehicle must wait between the time that they order and when they pick it up. Each vehicle takes 3 . 5 minutes to service , however the flow rate through the drive-through facility is 60 vehicles per hour. If they were to assume that more than 20 cars would be cued up at a drive-through window, these cars would line up over 500 lane feet . This is 2 football fields . The level of service is technically defined . The level of service ranges from A to F . He has calculated the difference between the results that were presented in the traffic impact study for the impact of having the restaurant on this property along with the CFCU and the Summerhill Apartments . The difference between the results that were presented and the results that would be there were calculated . The results that would be present if they had assumed no pass by traffic . When Mr. Turchin did his study, he assumed that there would be pass- by traffic . Mr. Napoleon stated that he assumed that there would not be pass by traffic . All the traffic using the restaurant would be new to the area streets . His conclusion was that the level of service does not change . There will be more traffic , but the level of service did not change . The change would be minor and hard to detect . There were comments made about needing 300 feet separation between adjacent driveways . The most stringent criteria exist for putting a driveway on a State highway. The State of New York Department of Transportation will allow driveways 10-feet apart . Three hundred feet is a nice criteria . What does that stand for? Mr. Napoleon stated that he is unsure . It was stated that negative traffic shown in the study. There are things as negative traffic . It is traffic that is diverted from elsewhere . Traffic that once went straight , now turns left . Traffic is being diverted to another location . The Town , not the applicant , determined the time and location of the traffic counts . There were no traffic counts taken while the students were out of school . There were none taken during the Thanksgiving ZONING BOARD OF APPEALS PAGE 22 JULY 1511999 APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED break. When pass by traffic was introduced that had been deducted , that he was reintroducing 45% of the traffic back into the passing streams of traffic . This produced no net change in the level of service at any of the intersections . There is no significant change . The characterization was made that 100 vehicles per hour were a lot of traffic . One hundred vehicles an hour are less than 120 vehicles and hour. One hundred and twenty vehicles an hour are 2 vehicles per minute . One car passes every 30 seconds . Larry Turchin , Traffic Solutions , stated that he prepared the traffic impact study. The study was prepared according to national standards . The Trip Generation book is used across the United States . If he had used anything else , the Planning Department would have rejected the study. The Planning Department evaluated the trip generation table used in the report . They have the same book in their office . It was stated that the table he used was not correct . There are a large number of studies used . A lot of studies have been applied to this . The numbers used are real time numbers . They are traffic counts that were made within a short duration . The traffic study is 2 impact studies combined . It is both CFCU and Burger King . If 80% of traffic is going north and south , 100 cars , 80 cars going north and south . Chairperson Stotz adjourn this meeting until July 28 , 1999 at Town Hall . At that time the board will discuss and deliberate and then make a decision . Chairperson Stotz adjourned the meeting at 11 : 47 p . m . rl rrie . at inutes Secret r David Stotz, Ch ' r erson . TOWN OF ITHACA • AFFIDAVIT OF POSTING AND PUBLICATION I, Dani L. Holford, being duly sworn, depose and say that I am the Town of Ithaca Building and Zoning Department Secretary, Tompkins County, New York; that the following notice has been duly posted on the sign board of the Town of Ithaca and that said notice has been duly published in the local newspaper, The Ithaca Journal. Notice of public hearinns to be held by the Town of Ithaca Zoning Board of Appeals in Town Hall, 126 East Seneca Street, Ithaca, New York on Thursday, July 15, 1999, commencing at 7:00 P.M., as per attached. Location of sign board used for posting: Bulletin board, front entrance of Town Hall. Date of posting: July 6, 1999 Date of publication: July 9, 1999 UaniL, rd, Building and Zoning Di artrne4 Secretary, Town of Ithaca STATE OF NEW YORK ) SS. : COUNTY OF TOMPKINS ) Sworn to and subscribed before me this 9th day of July, 1999. &- d � Notary Public DEBORAH KELLEY Notary Public, State of New.York No. 01 KE6025073 Oualified in Schuyler County Commission Expires May 17. 2D • • TOWN OF ITHACA ZONING BOARD OF .-APPEALS NOTICE OF PUBLIC HEARINGS THURSDAY . IfULY t5 , 1999 1 : 00 P. M . 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 Thursday. July 15 , 1999, in Ithaca City Hall, 108 East Green Street. ( Common Council Chambers. Third Floor). Ithaca. N . Y . , COIVIMENCING AT 7 :00 P . M. . on the following matters : APPEAL of Hollis N. Erb, Martin and Susan Sheer. Appellants, requesting an interpretation of Article II, Section 3 . 5 and Article VII, Section 34 of the Town of Ithaca Zoning Ordinance, as to whether or not a restaurant with a "drive-through" service is a permitted use in a Business District "C . " APPEAL of Rowe Restaurants Inc. , Robert W. Rowe, Appellant, requesting a special approval from the Zoning Board of Appeals under Article VII, Section 34 of the Town of Ithaca Zoning Ordinance, to be permitted to construct a Burger King restaurant in the East Hill Plaza, located at 1010 Ellis Hollow Road, • Town of Ithaca Tax Parcel No . 62-2- 1 .22, Business District C . APPEAL of Rowe Restaurants Inc. , Robert W. Rowe, Appellant, requesting a variance from Section 5 . 02- 1 and 5 . 03 - 4 of the Town of Ithaca Sign Law, to be permitted to place a 24 square foot projecting sign on a mansard roof facade ( 15 square foot unit) and a ?5 foot high freestanding sign (20 feet height limit) in the rear yard (placement in the front yard required) at the proposed Burger King restaurant in the East Hill Plaza, 1010 Ellis Hollow Road, Town of Ithaca Tax Parcel No . 62-2- 1 .22, Business District C . At the option of the Zoning Board of Appeals, the public hearings on one or more of the above matters, may be held simultaneously, with the public hearings on any of the aforementioned matters. 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. Individuals with visual or hearing impairments or other special needs, as appropriate, will be provided with assistance, as necessary, upon request. Persons desiring assistance must make such a request not less than 48 hours prior to the time of the public hearing . Andrew S . Frost Director of Building and Zoning 273 - 1783 Dated: July 6, 1999 Published: July 9 , 1999 •