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HomeMy WebLinkAboutZBA Minutes 1999-07-28 FUD OF TOWN OF ITHACA ZONING BOARD OF APPEALS tea— I-- ► M WEDNESDAY, JULY 28. 1999 7 : 00 a. 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 a permitted use in a Business District C . APPEAL GRANTED 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 GRANTED APPEAL of Rowe Restaurants , Inc . , Robert W . Rowe , Appellant , requesting a variance from sections 5 . 02- 1 and 5 . 034 of the Town of Ithaca Sign Law, to be permitted to place a 24 square foot project 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 . 22 , Business District C . APPEAL DENIED (LOCATION TO REAR YARD GRANTED) FltJ� TOWN/ �OF�� >@ ffHM TOWN OF ITHACA ZONING BOARD OF APPEALS Date ' / � 'o WEDNESDAY. JULY 284 1999 Clerk „ C% tja�c! • 7 : 00 p. m . PRESENT: David Stotz, Chairperson ; Ronald Krantz, Board Member; James Niefer, Board Member; Kirk Sigel , Board Member; Andrew Frost , Director of Building/Zoning ; John Barney, Attorney for the Town ; Jon Kanter, Director of Planning ; Mike Smith , Planner. EXCUSED : Harry Ellsworth , Board Member. OTHERS : Bill Seldin , 120 Northview; Robin Seeley, 332 Hurd Road ; John Murray, 95 Brown Road ; Douglas Clearo , 95 Brown Road ; Bob Rowe , Rowe Restaurants Inc. , Richard Stumbar, Bixlar & Stumbar; Lauren Bishop , Ithaca Journal ; Eva Hoffmann , 4 Sugarbush Lane ; RB Fischer, 135 Pine Tree Road ; S . Rourke , Ithaca Journal ; Larry Turchin , Traffic Solutions ; Mauey Krook, 113 Pine Tree Road ; Frank Santelli , TG Miller; Diana Yee , 206 Tudor Road ; Betty Lewis , 139 Snyder Hill Road ; Susan Shefter, 145 Pine Tree Road ; Bill Goodhew, 674 Coddington Road ; Ruth Mahr, 103 Judd Falls Road ; Blythe Baldwin , 149 Pine Tree Road ; Antonie & Shelley Blackler, 14 Nottingham Drive ; Beverly Livesay, 147 Snyder Hill Road ; Edith Cassel , 152 Pine Tree Road ; Hollis Erb , 118 Snyder Hill Road ; Elizabeth Harness , WHCU ; Steven Robertson , 1655 Ellis Hollow Road ; Bruce Turnbull , 118 Pine Tree Road ; Rod Howe , 126 Judd Falls Road ; Faith Chase , 106 Comfort Road ; Maralyn Edid , 22 Renwick Hts ; Joel Harlan , Dryden , Chairman Stotz led the meeting to order at 7 : 01 p . m . , stating that all posting , publication , and Wotifications of the public hearings had been completed . Chairperson Stotz stated that this meeting is a continuation of the July 15 , 1999 discussion concerning the appeal of Rowe Restaurant Inc to build a Burger King at East Hill Plaza . The public hearing has been held . The board will not accept further input from the public. There may be questions directed to a member of the general public by a board member . Please do not construe that as re-opening the public hearing . The appeals to be heard are as follows : 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 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 = is 1 . 22 , Business District C . ZONING BOARD OF APPEALS PAGE 2 JULY 28, 1999 • APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED Chairperson Stotz stated that the board would like to move to Executive Session to obtain legal advice . Motion made by Mr. Niefer, seconded by Mr. Krantz to enter into an Executive Session to receive legal advice . Carried unanimously. The Board entered Executive Session at 7 : 02 p . m . Motion made by Mr. Krantz, seconded by Mr. Niefer to resume regular session . Carried unanimously. The Board resumed regular session at 7 : 14 p . m . Attorney Barney stated that the reason the board met in Executive Session is that the public hearing on this matter was officially closed at the July 15 , 1999 meeting. After that meeting , the opponents submitted a considerable amount of material . There were some letters received in support of the application . Under the cases of the State of New York, usually you are not allowed to accept materials that are filed after the closing of the public hearing . The board wanted to consider the options available to them legally. They have done so . Chairperson Stotz stated that the board feels that since they have received these materials that it is only right that the appellant and the opponents have a chance to re-but each other . Larry Turchin , Traffic Solutions , stated he would like to refer to the document from the East Hill • Association dated July 26 , 1999 to the members of the Zoning Board of Appeals . Section 5 (a) , the numbers utilized are not correct . The numbers that they used are according to the Trip Generation Manual . The correct amount is 1 vehicle every 75 seconds on the road systems . These are newly generated cars . The opponents have included all traffic. They have not taken out for pass-by traffic. Item C (5) discusses distributions on other road systems and why other analysis was performed . The applicant met with the Director of Planning and reviewed all the roads , intersections , time periods , the documentation , how the report was to be written , what format should be followed . This was all approved prior to the initiation of the report . Item D refers to the NESTS study. If one examines the report , the key areas that are referred to as suffering problems due to current congestion , the report has analyzed the principal signalized intersection at Judd Falls Road and Ellis Hollow Road as a dog like intersection . This means that they analyzed the intersection before it was reconstructed . The material presented in the NESTS report is not applicable . The intersection of Route 366 and Judd Falls is categorized as failing . It does have a lot of traffic . If the State of New York had identified it as a high accident intersection , they would have addressed it . This intersection does not have a high accident history. Item D (b) states that there has been a significant increase in accidents along Ellis Hollow Road near East Hill Plaza . This is an incorrect statement . There have only been one or two accidents per year. This is not considered high according to State Code . There are many other statements regarding Pine Tree Road as having a high accident history. There are only a few • accidents per year on Pine Tree Road . ZONING BOARD OF APPEALS PAGE 3 JULY 28, 1999 • APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED Item 2 (a) , discusses the State of New York standards for driveway separation . Page 43 of the State of New York traffic standards , states that there is a 30-foot minimum between commercial driveways . James Napoleon , Traffic Consultant , stated that he would like to refer to the same document as Mr. Turchin , Item 2 (b) states that the waiting time at the proposed drive-through may extend and block the East Hill Plaza service road at peak times . Doctor Carter has calculated that the proposed cueing distance is about 150 feet too shot to accommodate the number of cars that Burger King expects at peak times . This is not what Doctor Carter stated . He stated that about 150-cueing space is provided and that it is not enough for the 24 vehicles that would be cued up at the end of the peak hour. Twenty-four vehicles would consume 600 feet . In addition to the 150 feet provided , another 600 feet would need to be added in order to adequately serve the cued vehicles . Studies have shown that vehicles are delayed the greatest at the service pick- up window. There is a flow rate of 60 vehicles per hour at capacity. When the system is operating at capacity, there will be an average of 3 vehicles in the system . The average waiting time before being served is 135 seconds . The total time in the system is 3 minutes . There is a probability of 2 . 5% that there will be more than 8 vehicles cued in the system . There will be a probability less than 2% that there will be 9 vehicles . Attorney Barney asked what Mr. Napoleon is basing the probability on . Mr. Napoleon stated that it is based on the combination of the flow rate and the service time . OThe service times say that the system could accommodate 80 vehicles per hour. This is 40 seconds per vehicle . Mr. Napoleon stated that he has not seen a system accommodate more than 60 vehicles . The system is always under loaded as far as the delays are concerned . This is what determines the cues or the back up of traffic waiting to get to the pick- up window. Chairperson Stotz asked how the probability could be determined so precisely. There are occasions during meal times when people may congregate in - groups larger than 10 cars . Mr. Napoleon responded that there is a chance that there will be more than 10 cars . The probability of that is less than 2% . This is during the peak hour. Chairperson Stotz asked if this is factoring in the probability concerning the number of people that will look for drive-through service during the peak hours . Mr. Napoleon replied yes . There is a possibility that 25 cars will pull- up at the same time . They are not going to get in . Chairperson Stotz asked how that is anticipated . Mr. Napoleon stated that it cannot be anticipated . There is a possibility of it , but there is very strong distinction between the possibility and the probability. The probability is for 10 or more vehicles are 1 . 4%. If the flow rate were to decrease during the off peak hours the probability would • go lower. Doctor Carter felt that there would be a back log at the end of an hour because it takes 3 ZONING BOARD OF APPEALS PAGE 4 JULY 28 , 1999 APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED minutes to serve the customer and 60 vehicles can be served an hour. The backlog would be of 24 vehicles . This is 2 football fields in length of cars waiting . At the end of the hour, there will be as many cars cued as the beginning of the hour. The vehicles flow through the system . Bill Seldin stated that the sign variances involve two signs . There are only two signs with logos that identify Burger King . This is referring to the document that states the applicant' s sign variance request is legally flawed . The argument was that the applicant was going to have signs galore . There are only two signs identified with logos . One is a pole sign . The request for the variance is to go from 20 feet permitted to 25 feet and be located at the rear of the property. The reason is that the Planning Department and Planning Board thought it would be best not to have this pole adjacent to the road and in the front of the building . It would be more obscured behind the building . The applicant feels that there are practical difficulties and hardships associated with that . The Citgo station next door has approximately 9 identifying signs associated with it . The Planning Departments view of this was appropriate . The other variance has to do with the sign that is parallel to the building . It was determined to be a projecting sign . The applicant feels that it is not a projecting sign . The request is to increase the size of the sign from 15 feet ( permitted) to 22 feet along the side of the building . The applications were not flawed . There are not 9 identifying signs . There are 2 identifying signs , 5 directional signs , and 1 menu board . It is incorrect to include the directional signs in with the menu board . • Chairperson Stotz asked how an identifying sign is defined . Mr. Seldin stated that it would need to have a logo . Chairperson Stotz asked if the menu board has a logo on it . Does it mention Burger King ? Mr. Frost stated that it was his opinion that the sign was permitted as a second freestanding sign since the property has access from 2 roadways . Mr. Seldin stated that if the board has a problem with the cueing , the applicant is prepared to offer an alternative that this board could make a condition of any granting of the approval . It is not the best situation for a lot of reasons . They do not want to walk away from the meeting being defeated on this issue . There is an alternative that will allow for the stacking of 17 cars . They do not believe that the cueing and the reality of the placement and internal design of Burger King will require a need for that . Mr. Seldin stated that the letters of support look as if they are on preprinted forms . The applicant did not prepare them or authorize them . They did not know of them until the Zoning secretary sent them to the applicant . Ruth Mahr, East Hill Citizens Association , stated that she regrets the tone of the letters . They disparage the case that they have made . These letters are not up to the standard of debate that is • ongoing . None of the letters specify drive-through restaurant . They all support a Burger King restaurant . The East Hill Citizens Association does not oppose a Burger King restaurant . It does ZONING BOARD OF APPEALS PAGE 5 JULY 28, 1999 APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED oppose a drive-through restaurant . A case has been made based on the criteria in the Zoning Ordinance . These letters do not address this . Factual material has been presented to the board . They trust that the board will do so in a fair manor. 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 . Mr. Krantz stated that the question is if a drive-through is a permitted use . Attorney Barney has stated that he thinks it is a permitted use . Mr. Stumbar has stated that he thinks that a drive- through is not permitted . Attorney Barney, could you comment on this further? Attorney Barney stated that the Zoning Ordinance has 3 general business zones . Business Zone A is the most restrictive . Zone B is moderately restrictive and Zone C is the least restrictive . The Business Zone A permits banks as of right less than 10 , 000 square feet . They would not need to come before the Zoning Board of Appeals for special approval . The drafters of the Ordinance felt that a particular type of bank, one with a drive-through , should get the benefit of a special approval . They then stated that drive-through banks need special approval . Restaurants are only permitted in the Marina zone , which is a specialty zone . The other is a Business C Zone . The restaurant must have special approval . All restaurants whether drive-through or not , require special approval to be obtained from this board . It is consistent with the way the Ordinance is drafted . There was no distinction between restaurant and drive-through restaurant since all restaurants require special approval . The distinction between banks and drive-through banks is that a bank does not require a special approval . A drive-through bank because of potential traffic problems requires special approval . Attorney Barney stated that it is construed that the municipality is to give the benefit of the doubt to any landowner. Chairperson Stotz asked Attorney Barney to explain what is meant by what is not specifically permitted is prohibited . Attorney Barney stated that if a type of use is not specified in the Ordinance is prohibited . The Zoning Ordinance has to be read in general language . It can not be narrowed or broadened . It would be a stretch to say that a drive-through restaurant is not a restaurant . Restaurants are the overall set . The subset of drive-throughs is therefore permitted . There is the overall set of banks and the subset of drive-through banks . Due to the regulatory nature , are only permitted with special approval . The main set is permitted generally. It is difficult to say that Burger King does not serve food . It is a restaurant . Chairperson Stotz stated that there would be consideration of the drive-through aspect • whether it is a bank or a restaurant . 0 ZONING BOARD OF APPEALS PAGE 6 JULY 28 , 1999 APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED Attorney Barney stated that both drive-through would be subject to special approval . All restaurants are subject to special approval . Mr. Niefer asked if there is a definition for "or other place for the serving of food" . Could it be considered a carryout window or other said place for the serving of food ? Attorney Barney stated that it would be difficult to argue that a drive-through establishment is not a restaurant . It would be more difficult argue that it is not another place for the service of food . He did find a case that dealt with drive- up restaurants . There was an argument as to whether that drive-up restaurant was included in the term restaurant . The court determined that is was even though it was different from the traditional sit-down restaurant . Chairperson Stotz stated that his concern is that the review process be equal for both drive- through restaurants and banks . Each procedure is treated in the same manner. MOTION made by David Stotz, seconded by James Nieferr, BE IT RESOLVED that the Zoning Board of Appeals hereby interprets the Zoning Ordinance to permit drive-through restaurant in a Business C zone based upon the following findings of fact and decision: FINDINGS OF FACT: 1 . The applicants filed an appeal from the Decision of the Director of Zoning and Planning determining that a drive-through restaurant was a permitted use in Business District "C': 2. A public hearing was held by this Board on due notice on July 15, 1999. At that time the applicants and other persons interested in the interpretation were given an opportunity to be heard and spoke in favor or in opposition to the appeal. 3. The Zoning Ordinance permits a "restaurant or other place for the serving of food" in Business District "C" upon receipt of a special approval. 4. Webster's Dictionary defines a "restaurant" as `A commercial establishment serving meals or refreshments. " The dictionary makes no distinction between restaurants where food is served for consumption on premises or off premises. 5. The Zoning Ordinance permits, as of right, in virtually all of the commercial districts, with the exception of the Special Districts and Business District "D" and "E'; the establishment of a "bank or other financial institution " without the requirement of obtaining a special approval. However, the Zoning Ordinance requires those banks with "drive-through " to obtain a special approval. • ZONING BOARD OF APPEALS PAGE 7 JULY 282 1999 . APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED 6. The rationale for requiring a bank drive-through to obtain a special approval was to give the Town additional control over traffic that might flow from the drive-through. Since all restaurants are already subject to the requirement of obtaining a special approval, there was no need to distinguish between restaurants with or without a drive-through . 7. Approximately ten years ago, an application was made by McDonald's Corporation to establish a drive-through restaurant in a Business "C" District. At no time during the process was a question raised as to whether a bank drive-through was a permitted use. The bodies then concerned with the matter (the Town Board and the Town Planning Board) interpreted the Ordinance as allowing a drive-through restaurant. 8. The Town Board has recently enacted a moratorium on the establishment of, among other businesses, drive-through businesses. The legislation specifically refers not only to drive= through restaurants, but also to drive-through banks and drive-through pharmacies. If drive= through restaurants were not permitted under the Ordinance, there would have been no need to enact a moratorium-prohibiting establishment of further drive-through businesses, other than a drive-through bank. Thus the Town Board, in its recent actions, implicitly interpreted the Zoning Ordinance as permitting drive-through restaurants. 9. The actions of the Town Board and the Town Planning Board in establishing a history of the manner in which the Ordinance has been interpreted, is to be given substantial weight in determining what the intended meaning of the Ordinance is. 10, The Ordinance has a pattern of regulating general uses, and then providing special regulations for certain sub-sets of a general use. For example, Business District "B " permits, as a permitted use of 10, 000 square feet or less, "any other retail stores, except automobile sales agencies. " Notwithstanding that general permission, certain retail uses are only permitted in a Business District "C'; a less restrictive district. For example, Business District "C" permits such retail stores as "appliance sales and service ', "bicycle sale and repair'; "confectioner"; "refrigeration sale and repair'; among others. Thus while generally retail uses are permitted in Business "B" Zones, certain specified retail uses are only permitted in the less restrictive Business "C" Zone. DECISION Based upon the foregoing, it is the interpretation of this Board that a drive-through restaurant is a permitted use in a Business "C" District under the Town 's Zoning Ordinance. A vote on the MOTION resulted as follows: AYES: Stotz, Krantz, Niefer, Sigel, NAYS: None. • The MOTION was declared to be carried unanimously. ZONING BOARD OF APPEALS PAGE 8 JULY 289 1999 APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED 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 . Attorney Barney stated that the issue before the board is that when a special permit is required that there are certain circumstances that need to be considered and met before the special permit issued . The focus is if the applicant has made a case under the criteria set forth under the Ordinance to be allowed to have the restaurant . If the board finds that the applicant has made out the case and has met the criteria , the board 's only option is to grant special approval . If the board finds that the applicant has not made out the case , then the board 's only option is to deny the approval . This is not to be decided on an emotional basis . It is based upon the requirements of Section 77 , subdivision 7 , subsections a- h that determine whether or not this appeal should receive special approval . In the view of the State of New York Courts , public pressure is irrelevant . Decisions made based upon public pressure are routinely tossed out of courts . Generalized opposition is not a basis to make a decision . It is to be based on the eight criteria . There is little question under cases in the State of New York that if a business that may be permitted as of right will generate more or equal to • traffic than a business subject to special permit application , then the boards cannot deny the approval based upon the increase in traffic. There have been conflicting statements on the issue of traffic. The board needs to decide if the traffic generated by Burger King is greater than the traffic that would be generated by another facility permitted without special approval . A special permit cannot be denied solely on the ground that if granted certain illegal activities may occur there . This has not happened with drive-through restaurants . It has happened with Pool Halls when they required special approvals . The thought was once it was granted that there would be a nuisance . The Courts state that the approval cannot be denied based upon the theory that illegal activities may take place . This is brought up by the assumption that there will be a lot of litter. The thought that people may litter is not sufficient grounds to deny approval . The board should base the decision based upon the materials submitted to the board during the public hearing and in the application . The board can also base the decision upon your generalized knowledge of the area as long as it is disclosed that it is the basis for the decision . Then if a court reviews this , they can see that a board member lived next door to the project and they know that the intersection is a bad intersection . It would need to be specified in the decision . The board is triers of fact . The board has heard conflicting testimony on a number of issues . There are grounds to grant or deny the special permit . It should be limited to the eight criteria . Mr. Krantz stated that the opponents of the drive-through have stated that the Town has a small Planning Department and that they have been overwhelmed by an abundance of paper work. , It has been stated in reports that there were minimal problems with the cueing up and increase of ZONING BOARD OF APPEALS PAGE 9 JULY 289 1999 . APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED traffic. There will be an increase in traffic and cueing might be a problem . Safety could also be a problem . Is there more of a problem than the Planning Department thought? Jonathan Kanter, Director of Planning , stated no . The Planning Department was not overwhelmed by the traffic impact study. The department has reviewed many like it . It is normal for this process . There have been numerous comments that the planning staff approved this or that . The planning staff does not approve anything . Staff provides direction to the applicant in terms of how the traffic study should be set- up as to what they think the boards will want to see . Staff does not pretend to have the authority to approve such a study. The Zoning Board of Appeals and the Planning Board only do it . Staff spent many hours reviewing the study. It was not reviewed on the basis of finding errors . If they did , a list of inconsistencies may have been found . Staff reviewed the study to make sure it had the elements in it that are important for the Zoning Board of Appeals and Planning Board to review. This was done and the recommendation was made to the Planning Board and Zoning Board of Appeals . Based upon the review, the Planning Department suggested to the Planning Board and Zoning Board of Appeals that there was sufficient information in the study for the board to make a decision . Based upon staff review, staff felt that the volumes generated by the Burger King proposal would not significantly affect operating conditions for traffic on nearby roadways. The Planning staff was not the only people that reviewed the study. The Town Engineer also studied the proposal and made the same determination . Mr. Kanter stated that he reviewed the memo provided to the Zoning Board of Appeals by Mr. Napoleon dated July 15 , 1999 in which he provided comparative information on different types of land uses . Two of which would be permitted uses under the Business C zone , video rental stores and walk- in banks . The information provided by Mr. Napoleon is correct . It indicates that there are at least 2 uses that could be built on the site and would generate more traffic . Chairperson Stotz stated that a point was made about when the traffic study was conducted . It has been stated that some data was conducted over a period of time when college students were out of town . This would have affected the traffic counts . Mr. Turchin stated that the data he collected was not done over Thanksgiving break or a Sunday. It was done during the appropriate time periods . The only count taken on Thanksgiving was done by the State and was taken out of the NESTS report . In talking with the State engineers , it was explained that they do not count on holidays. The wrong date might have been submitted . Mr. Seldin stated that these counts had to be done while the students were in Town . There was a deadline to be met because the students were leaving on a holiday. The applicant made every effort to do these counts while the students were in Town . Mr. Turchin stated that they were given a date when they could not count after. Mr. Frost stated that Mitchell Street is closed intermittently for many months . Are you aware of • anytime when the traffic was diverted from Mitchell Street? Did they include detours that put traffic onto Pine Tree Road ? ZONING BOARD OF APPEALS PAGE 10 JULY 28 , 1999 • APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED Mr. Turchin responded that there was one day that the County closed Mitchell Street for a short time . Mr . Kanter stated that there were sufficient counts at the intersections that were of concern . They were done during regular in session times of Cornell University and Ithaca College . He cannot confirm rather or not there were counts done in the study that were done during Thanksgiving vacation . Mr. Sigel asked if Town staff looked at the cueing length for the drive-through . How was it decided that the cueing length is sufficient? Mr. Kanter stated that staff did look at it and it was done in conjunction with the Town Engineer's review. They looked through the materials provided by the applicant . The traffic study did not provide a lot of information on that subject . The Town Engineer and the Planning staff felt that because of the way the access was arranged with the one entrance on the shopping center parking lot and the other on the entrance drive with no access to a public road that any spill over of stacking would not spill over to the public road . The new configuration of a roadway within the parking lot would have sufficient room for people to maneuver around cars that might back- up . Mr. Sigel asked if it would be an unacceptable condition that on a semi- regular basis there were cars out on the loop road for several minutes . Mr. Kanter stated that in his opinion it would not be an unacceptable condition . It is something for the board to decide . From a planner's standpoint it is acceptable and it will likely happen at times . It is also likely that when people see one or two cars backed up that way they will continue into the parking lot instead of going to the drive-through . Chairperson Stotz stated that there are other facilities in the area that attract people . He can anticipate that at some future point , a lot of cars will ascend on Burger King . There will be a cue that goes out a considerable distance . The probability of those occurrences happening is what matters . Rather people decide to sit in a cue that is 15 cars long or park their car is another issue . Mr. Sigel stated that he has gone by fast food restaurants on Route 13 and has seen 11 cars cued , 7 of which were from the menu board back. There was a brief time when there was 11 cars cued . There only needs to be one or two slow orders to get a big line . He is concerned that once the cue reaches its intended length then there will be a split . There will be cars coming from two entrances . It might result in two lines with people contending . People may decide to go in once the line cues to 15 cars . Chairperson Stotz stated that it is unknown how the area will develop . Mr. Niefer stated that the Zoning Board of Appeals has received a resolution from the Planning OBoard . One of the items is the installation and improvement of traffic islands by Cornell University in the East Hill Plaza lot . What assurance is there that the traffic islands will be completed in a timely ZONING BOARD OF APPEALS PAGE 11 JULY 28, 1999 APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED manner? Who is the guarantor of the completion of the islands? They have been in the discussion phase for an extended period of time . Attorney Barney stated that before the certificate of occupancy is granted to Burger King , Cornell University would have to complete the islands of the East Hill Plaza . It has been the subject of previous matters , but has not been a condition of someone else getting a certificate of occupancy. It has been a frustration for the Town . Mr. Niefer asked if there is a party present that could confirm that this has been worked out . Chairperson Stotz stated that a letter has been submitted from Cornell University agreeing to the condition . Mr. Frost stated that P&C expansion has a building permit . Their certificate of occupancy is contingent upon the landscape islands . There is more than one business depending upon the landscape islands. Mr. Kanter stated that the letter is dated July 8 , 1999 from Carolyn Hoyt , Project Manager for Cornell University Real Estate , confirming that Cornell University agrees to the new configuration proposed with Burger King , Chairperson Stotz stated that he is concerned about having another entrance/exit on the service road . He would have less of an objection if it were just an exit . Having an entrance/exit will result in problem , especially as the East Hill Plaza develops . The P&C is expanding . It is unknown what Cornell University has planned for the offices vacated by CFCU . The service road will see nothing but an increase. The potential for conflict is great . Mr. Sigel stated that it would appear that the banks' and Burger King's busy hours will overlap . People will be coming out of the entrances wanting to go both ways , shopping or go to the road . It could be a problem . Mr. Kanter stated the northern most entrance/exit at the CFCU building is the one that is mainly used . That driveway handles traffic out of the drive-through area . The southerly entrance/exit is configured , as a two-way entrance but will primarily serve people parking . Chairperson Stotz stated he is in sympathy with people on Pine Tree Road . The sad reality is that Pine Tree Road is a collector road and that it is developing more and more into a north/south corridor. Until the County does something about , with or without Burger King, it will become worse . Mr. Sigel stated it would be hard to establish that Burger King will create traffic patterns different from the ones that exist . Chairperson Stotz stated that permitting Burger King in this area would not put the • intersections on overload . It will add traffic . The argument could be made that any additional traffic ZONING BOARD OF APPEALS PAGE 12 JULY 2811999 • APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED from any source is bad . There were not a lot of objections to the P&C expansion . When the CFCU drive-through was discussed , there was not a concern of the drive-through creating too much traffic. Mr. Sigel stated that P&C claimed that they were not expecting any new traffic . They were only serving their existing customers better. Chairperson Stotz stated that the same sort of analysis should have been for those actions as well . Mr. Kanter stated that CFCU had a traffic study and the same consultant did it . P&C argued that the addition would not be a traffic generator. Mr. Niefer stated that he travels through the Ellis Hollow Road intersection 4 or 5 times a week. At the time when Dunkin ' Donuts was present , he would stop for coffee . He still travels through the intersection , but does not stop because they are no longer in business . He was a user of a restaurant , but he still uses the intersection . He is not a new generator of traffic . Areas grow. Growth cannot be attributed to one business or institution . Chairperson Stotz stated that people who live on Pine Tree Road have to back their car out into traffic everyday. They do have relevant concerns . There is also the argument that no further development should occur at East Hill Plaza or the vicinity because it will generate additional traffic. Mr. Niefer stated that traffic would increase over time . Cornell University will grow and the other facilities will grow. Chairperson Stotz asked if a need has been established . Mr. Sigel stated that a need for a restaurant is self-evident . People need to eat . This issue was not raised for other restaurants in the area. Chairperson Stotz stated it is specified in the Zoning Ordinance as a community or neighborhood need . The community is the larger community and the larger Ithaca community has a need for a restaurant . Mr. Krantz stated that there is a school of thought that all fast food restaurants served unhealthy food . The fact remains that a large percentage of the population wants fast food restaurants . This includes a lot of people in the Ellis Hollow area . It is not up to the Zoning Board of Appeals to judge what type of food people should have . Chairperson Stotz stated that there is a Burger King on Route 13 . Mr. Frost stated that it is difficult to get to Route 13 . • Chairperson Stotz stated that there is a difference between needs or wants . ZONING BOARD OF APPEALS PAGE 13 JULY 28 , 1999 . APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED Mr. Sigel stated that very few businesses would pass by this board if the strict definition of need were followed . People do not need dry cleaning , video stores . Mr . Krantz stated it satisfies a need for many. People will come to the restaurant and that is why there is the concern for an increase in traffic . Chairperson Stotz stated that there are other restaurants in the East Hill Plaza . There are other fast foods restaurants in the Ithaca . Mr. Krantz stated that if that is the case there will not be a long cueing line or an increase in traffic because there are other restaurants that people will go to . Chairperson Stotz stated that because Burger King and McDonalds are popular, there could be a want for this type of food . Mr. Sigel stated that it is difficult to say that video stores are needed . Yet , it would be unreasonable to prohibit them . Chairperson Stotz stated that the location of Burger King is well suited for the East Hill Plaza . W fits in with the area . The architecture could be different , but the type of business fits in with the ast Hill Plaza area . This is what East Hill Plaza was designed for. It is hard to decide whether it is a neighborhood or community shopping center. Mr. Krantz stated that many years ago his wife served on a committee to help pick a new school superintendent . There were 5 or 6 different committees . They were unanimous in picking one candidate . The School Board decided on someone else . His wife felt like it was a waste of her time because no one listened . The board 's constituents are upset about Burger King . Someone will have to listen . The rules , regulations , law and legalities are important and cannot be overlooked . This is about people . Attorney Barney stated that there is a duty to be fair to the people who apply for operations that the Zoning Ordinance states are permitted . The rules are adopted and people are expected to play by. Shifting the rules in the middle of the game is inappropriate . The board can deny the appeal on any grounds . The question is if it is denied because a large number of people spoke out against it , if the applicant chooses to take the Town to court it will be back before the Town . It is not a legally acceptable basis for denial . The denial could be masked on another basis . The decision should be based on the criteria in the Zoning Ordinance . Chairperson Stotz stated that a petition was submitted with 270 signatures in support of Burger King . There is support on either side of the issue . Is Burger King consistent with the character in which it is located ? • ZONING BOARD OF APPEALS PAGE 14 JULY 28 , 1999 • APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED Mr. Krantz stated that it is located between a gas station and a drive-through bank . It is consistent . Chairperson Stotz stated that he feels that it is consistent with the neighborhood . Mr. Sigel stated that it would be difficult to argue that it does not fit in with the neighborhood character. Chairperson Stotz stated that an issue was made about devaluing neighboring property values . Mr. Niefer stated that he feels it is a stretch . The residential properties in the area are at a significant distance from the Plaza . It is hard to say that this establishment would devalue properties . Mr. Sigel stated that the closest residential uses are in commercial zones . The use as a commercial property is more valuable than residential in the commercial zone . Chairperson Stotz stated that the nearest residents are the senior citizens apartments and the will be Summerhill Apartments . The senior citizens did not speak out against the project . It seems that if you feel your property will be devalued the persons closest to it would have had something to say. Beyond that , the nearest residence is past the dentist office on Pine Tree Road . How does the board feel about the access and egress? Mr. Sigel asked the applicant if they would consider access from Ellis Hollow Road for a more traditional fast food set- up . People would enter from the main road on the right and people will travel around the back of the building through the drive-through . Some parking may be blocked . Was this considered and why was this felt to be a better design ? Mr. Rowe stated that he submitted a survey of the property to the Burger King 's development department . He explained that there were issues of external traffic situations . He did not want a curb cut on Ellis Hollow Road because of the traffic situation . Burger King looked at a lot of different configurations . They agreed that two entries that are not on public roads were the safest and most efficient way to place the restaurant on the site . Mr. Kanter stated that in consultation with the County, they supported not having an additional curb cut to this site on Ellis Hollow Road . The County submitted a letter stating that they supported access from the Plaza shopping center and service road . Chairperson Stotz stated that the service road is not used heavily. They do cut in crazing angles across the parking lot . That problem should be mitigated with the islands . Mr. Sigel stated that he is concerned about the entrance/exit on the service road and the cueing distance . Could the applicant explain the alternative cueing plan ? ZONING BOARD OF APPEALS PAGE 15 JULY 28, 1999 APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED David Herrick, TG Millers , stated that he is referring to drawing C01 , layout plan . The possibility is to create a dedicated drive-through lane at the entrance from the Plaza . This would allow traffic to circulate on the loop road uninterrupted by traffic that might come out into the Plaza . The majority of the traffic will come through the P&C entrance . The traffic would use the outer loop road . If the board feels that stacking is an issue , this is an alternative . Chairperson Stotz asked if it would be necessary to have an additional directional sign . Mr. Herrick stated that the pavement could be striped indicating what the lane is for. Mr. Sigel stated that if the drive-through were backed up , coming through the service road entrance would cause trouble . Mr. Herrick stated if there is a long length of cars , people will more than likely park and go in . Parking is provided which has not been offered in other facilities in the area . Chairperson Stotz stated that someone driving in from the service entrance could only get in the line if there were a maximum of 5 cars . Mr. Herrick stated that if there were more than 8 cars , the driver would be faced with the decision of pulling in parking or joining the cue . The other possibility is to bring in additional curbing and landscape area that would extend the possible cueing length . The same issues would still need to be faced . Richard Stumbar, Bixlar & Stumbar, stated that the public hearing has been reopened . Mr. Seldin made claims to lack of due process with respect to submittals made after the public hearing was closed . A new plan is being looked at that has not been reviewed by the Planning Board . Notice was not given to the public . They have not had an opportunity to review it or to give to their expert . This is a major change . Attorney Barney stated that the board should give Mr. Stumbar an opportunity to respond . The Planning Board has approved the site plan . This board could grant the special approval but conditionally on the Planning Board granting the site plan . It could also be sent back to the Planning Board at this point and then having it come back to the Zoning Board of Appeals . Mr. Sigel asked if there would be a public hearing . Attorney Barney responded yes. Mr. Niefer stated that as time goes on people will become adjusted to traffic patterns and circumstances . They will develop other methods . If there is a stacking situation , the customers are going to pull into a parking spot or will go somewhere else . Given the circumstances and the other ZONING BOARD OF APPEALS PAGE 16 JULY 2811999 0 APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED present facilities, the applicant has done a reasonable job of safely moving traffic in and out of the site . Chairperson Stotz stated that there were comments about the general lot area access and loading facilities being satisfactory. Mr. Kanter stated that the Planning Board made the determination . Chairperson Stotz asked Mr. Rowe where the loading would occur. Mr. Rowe stated that it would occur at the rear of the restaurant . He receives two deliveries a week from Maines and a bun delivery 5 mornings a week in a van . Mr . Rowe stated that he could dictate the times the deliveries are made . They are not allowed to deliver during peak hours . Mr. Krantz stated that cueing is a problem . There is limited cueing space . Chairperson Stotz asked if there is an ENVIRONMENTAL IMPACT STATEMENT on this project . Attorney Barney responded that under SEAR regulations a commercial establishment less • than 4 , 000 square feet is exempt . Chairperson Stotz stated that he would like to give Mr. Stumbar an opportunity to respond to any questions that have been raised . Mr. Stumbar stated that there have been questions raised as to whether or not traffic counts were taken at the appropriate times . There is documentary evidence submitted to the board concerning those . The exhibits were taken out of the traffic study. They are the applicant's pieces of paper. Mr. Turchin has stated that no traffic counts were taken over the Thanksgiving break . Mr. Stumbar stated that they submitted evidence stating that the traffic count was taken November 28 , 1998 and was counted by L. Turchin . There is selective memory as to when the counts were taken . He requests that the board look at the documentary evidence submitted . The cue lines set forth in the traffic study were very limited . It indicated that there was a cue line for only 6 vehicles . The 1 . 5-% is 10 to 11 vehicles . There will be an overload on the cue at significant times . The world does not work on self- pleasing . The attitude is that people will disperse . People will stay in line for a long time . It is not an engineering solution . There is only room for 6 cars . It will create a tremendous problem . Their traffic engineer has not had a chance to look at the new cue line . If it is a proposed solution then this should be referred back to the Planning Board . Mr. Sigel asked what the feasibility would be of rotating the restaurant 180 degrees and having the main entrance from the loop road out to the access road . ZONING BOARD OF APPEALS PAGE 17 JULY 282 1999 0 APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED Mr. Rowe stated that when they originally cited the building on that plan they looked at the building in many configurations . The Burger King Corporation determined that this is the safest layout for this site . There was a discussion of rotating the building 180 degrees and having a reverse drive-through . The drive-through lane would have to start at the front of the building as opposed to the back of the building . It is difficult for operations and it is unsafe for pedestrians . Mr. Kanter stated that the issue of pedestrian vehicular conflicts was something the Planning Board considered . They felt comfortable that this layout provided the best way of assuring minimal conflict . Mr. Sigel stated that the drawing looked as if they were missing one handicap ramp on the drawing . Mr. Herrick responded that he is referring to drawing CO2 . There is curbing around the perimeter around the restaurant . The sidewalk that approaches the pavement is at the same elevation as the driveway. The ramp is need on the opposite side is needed because there is a 6 inch difference in the curbing . Chairperson Stotz asked if the crosswalk would be striped where it crosses over the exit . People coming around the corner from the drive-through will not be able to see . Mr. Herrick stated that they would be able to do that . The elevation allows people to see around the corner. Mr. Niefer stated that they have not heard anything about surface water drainage . Mr. Kanter stated that the Town Engineer and the Planning Board looked at those issues . There is information provided in the application for Special Approval that includes that information . A drainage study was done by the applicant and reviewed by the Town Engineer and Planning Board . The Planning Board was satisfied that the drainage is being accommodated on the site and not resulting in anymore-surface run -off, it will be improving some of the flooding conditions that are occurring on Ellis Hollow Road , which are backing up because of a culvert that crosses under Pine Tree Road . The site drainage plan will accommodate on site run - off. Mr. Niefer asked if the box culvert under Ellis Hollow Road is large enough to accommodate the additional run -off from the Burger King parking area . Mr. Kanter stated that the culvert under Ellis Hollow Road is adequate . It is the culvert that the County installed across Pine Tree Road that is causing drainage problems . Chairperson Stotz stated that there was a litter issue raised . He is pleased that the applicant mentioned that he was willing to participate in keeping the area clean . Fast food restaurants do generate litter along highways . He would like to see a condition that would require participation in picking up litter. ZONING BOARD OF APPEALS PAGE 18 JULY 28, 1999 APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED Mr. Sigel asked what the applicant had in mind . Attorney Barney stated that if the board approves the appeal , he would suggest a condition that would require an agreement with the developer that requires regular policing of the area within a quarter mile of the facility at least of couple times a week . Mr. Seldin stated that the applicant agrees to pick up litter. Chairperson Stotz stated that people living on Pine Tree Road were concerned with litter. Mr. Sigel stated that it is up to each citizen not to litter. At some point it is beyond the applicant's responsibility. He favors the radius . Attorney Barney asked if the applicant would agree to picking up litter from Pine Tree Road to Route 79 , Mr. Sigel stated that he still has concerns with the cueing . The evidence that the applicant has provided evidence . The opponents have provided conflicting information . Doctor Carter indicated that there needs to be a larger cueing capacity. Chairperson Stotz stated that he feels it does not warrant a separate lane . There may be other solutions . Drivers could be directed not to park cars on the perimeter road . The applicant could also be obliged to make sure that the stacking does not occur. Attorney Barney stated that if this becomes a problem , the applicant could provide a modified site plan subject to the approval of the site plan . Mr. Seldin stated that they are prepared to do whatever has to be done to modify the situation . They do not think that this problem will occur. Chairperson Stotz stated that he is uncomfortable with the access and egress . It would be appropriate to require the service road to be a right turn only when leaving Burger King . Mr. Sigel stated that people would then have to realize that they need to use the rear entrance to go to the Plaza . Mr. Stumbar stated that this is a change to the site plan and it needs to be referred back to the Planning Board , Mr. Kanter stated that this is why there is the 3- step process . There is Preliminary Site plan with a recommendation to the Zoning Board of Appeals, and then the Zoning Board of Appeals considers special approval . It then goes back to the Planning Board for Final Site plan approval so . that the Planning Board can then address anything that becomes a concern or condition of the ZONING BOARD OF APPEALS PAGE 19 JULY 28, 1999 0 APPROVED - APPROVED - APPROVED - SEPTEMBER 8. 1999 - APPROVED - APPROVED - APPROVED Zoning Board of Appeals . It does not mean that the entire process needs to start over . Adding a sign at the exit is not a major change . The Planning Board can handle that with the public hearing at the Final Site Plan hearing. Chairperson Stotz stated that it would discourage one directional turn . Mr. Kanter stated that it would help prevent conflicts of turning movements at that location . This would then mean that people are restricted from going straight across to the CFCU . Mr. Frost stated that there is not a constant flow of traffic on the service road . Mr. Kanter stated that the sign could say no left turn . This will allow them to turn right or go straight . Chairperson Stotz stated that most fast food restaurants have one entrance and one exit . It would eliminate problems by having one entrance and one exit . There is traffic moving from both sides . MOTION made by David Stotz, seconded by James Niefer. FINDINGS OF FACT: BE IT RESOLVED that the ZONING BOARD OF APPEALS conditionally grants the requested special permit adopting the following findings of fact and decision: 1 . Petitioner, Rowe Restaurants, Inc. filed an appeal 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. 62-24 .22, Business District C. 2, On July 15, 1999, a public hearing was held regarding the application at which time the applicant appeared, with his attorney William Seldin and members of the public appeared, several of whom were represented by attorney Richard Stumbar, in opposition to the application. 3. The Planning Board of the Town of Ithaca has granted the preliminary site approval to the project and has recommended the granting of the requested special approval. 4. The area in which the proposed Burger King is to be located is part of a shopping plaza . The immediate site is bounded on the west, north, and east by the shopping center. The shopping center itself contains a P & C grocery store and a number of other stores. It also contains doctor's offices, two drive-through banks, and a motel. To the west of the shopping center is another smaller shopping plaza known as the Judd Falls Plaza which contains a branch bank ZONING BOARD OF APPEALS PAGE 20 JULY 28, 1999 APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED office, a bowling alley, a fitness and racquet club, and several other smaller commercial ventures. The area to the south is largely vacant land, for the most part owned by Cornell University. Slightly to the southwest are two large Cornell University facilities, the Cornell Tennis facility and the Cornell Equestrian facility. The closest residences to the site outside the area zoned Business "C" is the senior citizen multiple residence known as the Ellis Hollow Apartments. Accordingly, the health, safety, morals and general welfare of the community in harmony with the general purpose of this Ordinance as demonstrated by the zoning and occupancy of the subject parcel and the surrounding areas will be promoted. Further, the fact that the Town Board has zoned the district for such used is an implied finding that the use was compatible and in harmony with the general purpose of the Ordinance. 5. The petitioner has submitted a Petition with more than 200 names in support of the application. There are no other drive- through restaurants anywhere in the Town of Ithaca, and in particular none in the immediate East Hill area. The location of the proposed project, as outlined above, is part of a general commercial area with numerous commercial and professional activities surrounding it. There was evidence presented that people working in and around the two shopping centers would appreciate and patronize an establishment such as the proposed Burger King. For all of these reasons, it appears that premises are reasonably adapted to the proposed use, and that such use will fill a neighborhood or community need. • 6. As indicated above the proposed location for the Burger Kin is in an area that is essentially P P 9 9 Y commercial and professional. The proposed 2800 square foot store with associated drive- through facilities and parking is designed in a manner that is compatible with the surrounding commercial and professional establishments. Accordingly, the proposed use and the location and design of the structure is consistent with the character of the district in which it is proposed to be located. 7. Because of the surrounding commercial area and the relative distance to any residential facilities, and particularly substantial distance to virtually any single family residences outside the area zoned Business "C; it is clear that the proposed use shall not be detrimental to the general amenity or neighborhood character in an amount sufficient to devalue neighboring property or seriously inconvenience neighboring inhabitants. To the contrary, it appears that the addition of the Burger King will enhance an already attractive shopping plaza, particularly since the installation of the Burger King is conditioned upon certain landscaping and other improvements being made to the shopping center as a whole as required by the Planning Board. Such activities will result in a considerably more attractive shopping center area with a relatively small addition to it. There was no creditable evidence provided that suggests that the addition of the Burger King would alter downward the values of the surrounding real property. 8. The Town Planner and several traffic experts have set forth their opinions regarding the • design of the access to and from the proposed restaurant. There will be no direct access to Ellis Hollow Road. Access will be to the East Hill Plaza parking lot and to the East Hill Plaza ZONING BOARD OF APPEALS PAGE 21 JULY 28, 1999 • APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED entrance drive thereby providing means of ingress and egress to the proposed restaurant in a manner where the traffic empties out, initially, onto non -public roads. The redesigned East Hill Plaza entrance drive will permit egress and ingress to the project in a manner that minimizes its interference with traffic along Ellis Hollow Road. Such redesign includes the addition of the projected islands along the south ends of the East Hill Plaza parking rows and reduction of the curb cut between the Citgo station and the Plaza parking lot to 30 feet. The plan provides for stacking of up to eight cars at the drive-through lane; while there may be some occasion when more than eight cars may seek to access the drive- through, on such occasions the lines will be likely self regulating in that the people observing the line will pull into parking lot spaces rather than proceed through the drive-through. Accordingly, the proposed access and egress for all structures and uses is safely designed. 9. As set forth above, this relatively small commercial building in an area surrounded by considerably larger commercial and professional structures will have little impact on the nature of the community. There is public water and sewer available so that there will be no significant adverse impacts with respect to those public utilities. While the project will generate additional traffic, the amount of traffic added as a result of this project is less than the amount that would be added by certain other businesses that are permitted as of right in this zone, such as banks. Accordingly, 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. 10. The proposed restaurant is located to the west of the parcel, with more than adequate parking. Evidence was supplied to the effect that the traffic flow not only in and out of the parcel but within the parcel can be adequately handled by the location and sizing of the parking spaces and drive-through driveway. Accordingly, the lot area, parking and loading facilities are sufficient for the proposed use. 11 . The drainage system has been examined intensively by the Town Director of Engineering. His opinion is that the proposed drainage facilities and improvements to be constructed in connection with this project will actually improve drainage for surrounding parcels and relieve, in part existing adverse drainage conditions, particularly in those occasions where there is rapid runoff because of sudden storms. Based upon this evidence it is clear that the natural surface water drainage ways are not adversely affected. 12. The petitioner indicates that the restaurant will use a considerable amount of food service disposables. The petitioner has also indicated a willingness to ensure that litter generated by such disposables will not accumulate as trash along neighboring streets. 13. The petitioner has agreed to the agreement conditions set forth below. DECISION ZONING BOARD OF APPEALS PAGE 22 JULY 289 1999 APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED Based upon the findings set forth above, the Zoning Board of Appeals of the Town of Ithaca grants the requested special approval permit subject to the following conditions: 1 . The Petitioner comply with the conditions imposed by the Planning Board in granting its Preliminary Site Plan Approval and recommendation, and 2. Execution of an agreement satisfactory to the Director of Building and Zoning, Director of Planning and the Attorney for the Town by the applicant pursuant to which a regularly scheduled (at least twice weekly) policing of the area within one quarter mile of the facility and along Pine Tree Road from the Mitchell Street intersection and its intersection with Dryden Road, and along Mitchell Street/Ellis Hollow Road from the Ithaca City line to the Game Farm Road is done by the applicant to pick up any litter generated by the proposed restaurant, and 3. Execution of an agreement by the applicant satisfactory to the Director of Planning, Director of Building and Zoning and the Attorney for the Town that if excess stacking of cars at the drive- through in the opinion of the Planning Board, occurs on an unreasonably frequent basis, the developer will submit a proposed modified site plan to the Planning Board providing additional stacking length satisfactory to the Planning Board. 4. The petitioner install a sign prohibiting left turns out of the entrance%xit lanes opposite the Cornell Federal Credit Union access drive. 5. The premise be kept reasonably free of litter. A vote on the motion resulted as follows: AYES: Stotz, Krantz, Niefer, Sigel, NAYS: None. The MOTION was declared to be carried unanimously. 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 . 22 , Business District C . Mr. Krantz stated that Mr. Stumbar has stated that there are more signs that require variances . Mr. Frost responded that it is his opinion that the sign law would permit 2 freestanding signs , • section 402-2 , b1 . The freestanding sign that advertises Burger King is one and the menu sign is the ZONING BOARD OF APPEALS PAGE 23 JULY 28, 1999 APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED second freestanding . The clearance sign is allowed without permit under section 3 . 01 -2 , subdivision a , as a safety sign . The drive-through sign is a directional sign and is exempt under section 3 . 01 - 1c . Mr. Sigel asked if any of the signs have a Burger King logo . Mr. Rowe responded no . Chairperson Stotz asked why the freestanding sign needs to be 25 feet rather than 20 feet . Mr. Rowe stated that they originally shown the freestanding sign in the front of the building . When the sign was moved to the back of the building , it needed to be raised 5 feet for visibility. Mr. Sigel stated that the sign is being moved closer to the Pine Tree Road entrance to the Plaza . Why would it need to be higher when it is closer? Mr. Rowe stated that driving from Route 366 there is a lot of obstructions . The additional 5 feet is needed to obtain an equivalent height and visibility. Chairperson Stotz stated that with commercial development it becomes a competition with who has the highest sign . There are very few freestanding illuminated sign in the East Hill Plaza . • Most of the business signs are flush with the fagade of their businesses . Mr. Sigel stated it is hard to believe that people are not going to realize that there is a Burger King there with 20 feet high . Chairperson Stotz stated that the sign on the mansard roof is standard for Burger King . The sign is going to face a dark agricultural area . If you were to approach the East Hill Plaza after dark with the illuminated sign it will stand out like a soar thumb . It changes the character of that area . There would not be another sign like that in the Plaza . Mr. Niefer stated that the Citgo sign is in the same direction and is illuminated . The trees are growing and encroaching on the visibility of the existing signs . Chairperson Stotz stated the size of the sign illuminated at night shining in that direction does change the character of the neighborhood . Mr. Niefer asked if Chairperson Stotz would have the same objection if it were 20 feet high . Chairperson Stotz stated that he could understand the need for a freestanding sign . Mr. Frost stated that if the sign were 20 feet , the board would not be discussing it . Mr. Sigel asked if there is an issue with the freestanding sign as far as side yard setbacks . ZONING BOARD OF APPEALS PAGE 24 JULY 2811999 • APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED Mr. Frost responded no . Mr. Sigel stated that the Ordinance requires it to be 15 feet . Attorney Barney stated that the variance is to put the freestanding sign in the rear yard . Mr. Rowe , how far is it located from the side yard ? Mr. Rowe stated that the sign could be located 15 feet from the property line . Mr. Sigel stated that fast food restaurants often have promotional signs in windows and on banners . Is this regulated ? It mentions that 2 window signs are allowed . Attorney Barney stated that banners are not allowed . The Ordinance does not address changing window signs . The board could limit it to 2 window signs . Mr. Sigel asked what types of promotional sign he would have . Mr. Rowe stated that they have banners . He has he option of receiving them with the promotional products . If they are not allowed to have them by the Ordinance , they will not order them . He can also request not to receive pole signs . The cling-on signs are signs that he has to • order specifically. If they are not allowed by the Ordinance he will not order them . Mr. Sigel asked if the Ordinance forbids a temporary sign attached to a light pole . Attorney Barney stated that banners or similar signs are not allowed . Chairperson Stotz stated that this appeal is for 2 signs . Mr. Frost stated that Mr. Rowe has not made an application for permits for signs that he will eventually need to make . During the review of the permit application , if something does not comply, then it will need to go the Planning Board for sign review and then to the Zoning Board of Appeals . Mr. Sigel stated that if there are categories of signs that were not regulated , but permitted , then this is the opportunity to restrict it . Chairperson Stotz stated that P&C has a constant change over of window signs . ENVIRONMENTAL ASSESSMENT: Mr. Kanter stated that staff did not see anything significant in terms of SEQR . There are visual character issues . Planning staff felt that it was nothing that would require SEQR . If SEQR is not required for traffic and drainage, it does not make sense to require it for a sign variance . It does not • mean staff supports the variances . ZONING BOARD OF APPEALS PAGE 25 JULY 28, 1999 APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED Chairperson Stotz stated that SEQR does address the aesthetic , agricultural , archeological , historical , or other cultural resource to community or neighborhood character. He is objection to the mansard roof sign relates to its impact on the neighborhood character. It should be considered in the approval/disapproval in the Environmental Impact Statement . Mr. Kanter stated that this would have to be a significant impact for a positive declaration . He cannot recommend to the Zoning Board of Appeals to require an Environmental Impact Statement for the variances. He does not intend to suggest an outcome of the actual decision of the variances one way or another. MOTION made by Mr. Sigel, seconded by Mr. Krantz. RESOLVED, that this board makes a negative determination of environmental significance in the matter of Rowe Restaurants Inc. , 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 fapade ( 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 .22, Business District C. These finds are consistent with the recommendations of the Town Planner: 1 . No significant adverse effects are anticipated relating to the air quality, water quality or quantity, noise levels, traffic, solid waste, or potential for erosion or flooding as a result of the proposed sign variances. The proposed Burger King restaurant itself is a Type 2 action, pursuant to the State Environmental Quality Review Act (SEQRA), requiring no further environmental review. The Planning Board on May 18, 1999 granted Preliminary Site Plan Approval and issued an affirmative recommendation to the Zoning Board of Appeals regarding Special Approval for the proposed Burger King drive-through restaurant. The requested sign variances are unlisted actions pursuant to SEQRA, and are the subject of this environmental review. The appellant is requesting variances for two proposed signs: ( 1) a 22. 4 + square foot projecting sign on a mansard roof fapade, consisting of a letter height of 1 foot, 7 inches and a length of 14 feet, 2 inches, where Section 5. 02 - 1 of the Town of Ithaca Sign Law permits a maximum area of 15 square feet for the panel or sign symbols of projecting signs; an d(2) a 25 foot high freestanding sign located in the rear yard of the Burger King site, where Section 5. 03-2 of the Town of Ithaca Sign Law permits a maximum height of 20 feet and Section5. 03=4 of the Sign Law requires freestanding signs to be placed in front yards only. 2 . No aesthetic, archeological, historic or other natural resources are anticipated to be impacted by the proposed signs for which variances are being requested. East Hill Plaza and adjoining properties are commercially developed and commercially zoned. The site of the proposed Burger King restaurant is the last remaining vacant parcel in the Plaza. Cornell agricultural fields are located to the south of the site across Ellis Hollow Road. Several apartment complexes are located to the east of the site across Summerhill Lane. The proposed projecting sign would be mounted on the mansard roof of the Burger King building and would exceed the permitted maximum area of the panel or symbol by approximately 49% due to the ZONING BOARD OF APPEALS PAGE 26 JULY 282 1999 • APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED size of the standardized individual letters. The sign would be located on the south end of the building facing Ellis Hollow Road, and would be the only identification sign for vehicles approaching the site on Ellis Hollow Road. Elevation drawings were provided to the Planning Board in conjunction with site plan review indicating the location, size and style of the lettering in relation to the building. The proposed freestanding sign would be 50 square feet in size, which conforms to the Town of Ithaca Sign Law requirements. Its location in the rear yard rather than the front yard would help to minimize the sign 's impact on Ellis Hollow Road and the surrounding area. For this reason, the Planning Board supported its location in the rear yard adjacent to the East Hill Plaza parking lot, which is where one of the site 's access points will be located. Because of the location to the rear of the building, the requested height variance to allow it to be 25 feet high is not expected to have a significant impact on the surrounding area. 3. The site has been disturbed, and no significant vegetation or wildlife habitats are known to exist on this site. 4 . East Hill Plaza and adjoining commercial development have already established the character of this area. The Town of Ithaca Comprehensive Plan (Sept. 1993) designates the project site and surrounding area as appropriate for Commercial/General Business uses. The proposed signs, which are the subject of the requested variances, are not expected to change the character of this already developed area . 5 . The requested variances do not appear to be substantial in the growth, subsequent development or related activities likely to be induced by the proposed action. A vote on the MOTION resulted as follows: AYES: Stotz, Krantz, Niefer, Sigel, NAYS: None. The MOTION was declared to be carried unanimously. MOTION made by Chairperson Stotz, seconded by Mr. Krantz RESOLVED, that this board deny the appeal of Rowe Restaurants Inc. , Robert W. Rowe, Appellant, requesting a variance from Section 5. 02= 1 and 5. 034 of the Town of Ithaca Sign Law, to be permitted to place a 24 square foot projecting sign on a mansard roof fapade ( 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 . 22, Business District C, based upon the following findings: ZONING BOARD OF APPEALS PAGE 27 JULY 28, 1999 APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED 1 . On July 28, 1999 the Town of Ithaca Zoning Board of Appeals granted Special Approval for the construction of a Burger King restaurant at East Hill Plaza located at 1010 Ellis Hollow Road, Town of Ithaca Tax Parcel No. 62=2- 1 . 22, Business District C. and 2. With the exception of the Citgo gas station located at the intersection of Ellis Hollow Road and Pine Tree Road there are no other freestanding, illuminated signs of the size and height being requested by the petitioner, and 3. The proliferation of tall, free standing, lighted signs, is not in keeping with the character of the East Hill Plaza shopping center, a shopping center of predominantly small businesses whose business signs are mainly attached to the front facades of their respective premises, and 1 . The petitioner's proposed 24 square foot projecting illuminated sign on a mansard roof fagade would face to the south, an area that is rural in nature, has a minimum number of street lights, and has no other lighted commercial signs of the type requested by the Petitioner, and 2. Because the proposed size of such illuminated projecting sign will make it clearly visible from some single family homes in the Pine Tree Road area, the presence of such a sign will be detrimental to the character of the neighborhood so as to devalue neighboring property. A vote on the MOTION resulted as follows: AYES: Stotz, Krantz, Sigel, NAYS: Meter. The MOTION was declared to be carried. Attorney Barney asked if this motion includes the rear yard placement . Chairperson Stotz stated yes. Attorney Barney asked if the board prefers to the see the sign located in the rear yard . Mr. Frost stated that the Planning Board felt that placement in the rear yard was more appropriate . Mr. Kanter stated that the freestanding sign couldn 't be denied . Denying the rear yard variance means that it will be in the front yard . The Planning Board felt strongly that the rear yard location was more appropriate . Mr. Sigel stated that he is not opposed to locating the sign in the rear yard . The board could grant the appeal for the rear yard location and deny the appeal for height and the greater square • footage of the projecting sign . ZONING BOARD OF APPEALS PAGE 28 JULY 28, 1999 • APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED Attorney Barney stated that there needs to be a motion to rescind the motion made . MOTION made by Ronald Krantz, seconded by Kirk Sigel. RESOLVED, that the board rescind the motion that has just been made on the appeal of Rowe Restaurants requesting variances for a freestanding and projecting sign. A vote on the MOTION resulted as follows: AYES: Stotz, Krantz, Niefer, Sigel. NAYS: None, The MOTION was declared to be carried unanimously. Mr. Niefer asked that of the other establishments around the East Hill Plaza , how many have lighted signs . Mr. Frost stated that the bank is a lighted sign and the Best Western is a lighted sign . • MOTION made by David Stotz, seconded by Kirk Sigel. RESOLVED, that this board deny the appeal of Rowe Restaurants Inc. , Robert W. Rowe, Appellant, requesting a variance from Section 5. 02- 1 and 5. 034 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) 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. based upon the following findings: I . On July 28, 1999 the Town of Ithaca Zoning Board of Appeals granted Special Approval for the construction of a Burger King restaurant at East Hill Plaza located at 1010 Ellis Hollow Road, Town of Ithaca Tax Parcel No, 62=2- 1 . 22, Business District C. and 2. With the exception of the Citgo gas station located at the intersection of Ellis Hollow Road and Pine Tree Road there are no other freestanding, illuminated signs of the size and height being requested by the petitioner, and 3. The proliferation of tall, free standing, lighted signs, is not in keeping with the character of the East Hill Plaza shopping center, a shopping center of predominantly small businesses whose business signs are mainly attached to the front facades of their respective premises, and 4. The petitioner's proposed 24 square foot projecting illuminated sign on a mansard roof fagade • would face to the south, an area that is rural in nature, has a minimum number of street lights, and has no other lighted commercial signs of the type requested by the Petitioner, and ZONING BOARD OF APPEALS PAGE 29 JULY 28, 1999 • APPROVED - APPROVED - APPROVED - SEPTEMBER 8, 1999 - APPROVED - APPROVED - APPROVED 5. Because the proposed size of such illuminated projecting sign will make it clearly visible from some single family homes in the Pine Tree Road area, the presence of such a sign will be detrimental to the character of the neighborhood so as to devalue neighboring property. A vote on the MOTION resulted as follows: AYES: Stotz, Krantz, Sigel. NAYS: Niefer. The MOTION was declared to be carried. MOTION made by Ronald Krantz, seconded by James Niefer. RESOLVED, that this board grant the 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 free standing sign in the rear yard (placement in the front yard required) 15 feet away from the boundary line at the proposed Burger King restaurant in the East Hill Plaza, 1010 Ellis • Road, Town of Ithaca Tax Parcel No. 62=2- 1 .22, Business District Q based on the following: 1 . Due to the location of this business relative to the Plaza the desirability of providing an identification sign at the rear of the parcel rather than the front yard, and 2. The recommendation of the Planning Board was to locate the sign in the rear yard. A vote on the motion resulted as follows: AYES: Stotz, Krantz, Niefer, Sigel. NAYS: None. The MOTION was declared to be carried unanimously. Chairperson Stotz adjourned the meeting at 10 : 29 p . m . vm arrie L. Coates , Minutes S cr ar . • David Stotz, Chairps n .