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HomeMy WebLinkAboutZBA Minutes 1989-06-07NOTICE OF PUBLIC HEARINGS WEDNESDAY, June 7, 1989 7:00 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 Wednesday, June 7, 1989, in Town Hall, 126 East Seneca Street, (FIRST Floor, REAR Entrance, WEST Side), Ithaca, N.Y., COMMENCING AT 7:00 P.M., on the following matter. APPEAL (ADJOURNED FROM 5-24-89) of Louis Bonanni Jr., J & L Builders, Janes Hilker, Ralph Thorpe, Michael and Eleanor Winship, Lawrence E. Iacovelli Jr. and John Elmo, and Pamela E. Sackett, Appellants, Pamela E. Sackett, Agent, requesting authorization by the Zoning Board of Appeals, pursuant to Article XII, Section 54, of the Town of Ithaca Zoning Ordinance, for the extension of non -conforming building lots located in the area of Kendall Avenue, with said lots originally platted in the name of the Lands of the Ithaca Land Company and filed in the office of the Tompkins County Clerk on July 12, 1895, and with said lots proposed to be modified as shown on a map entitled "Boundary Survey Map, Kendall Avenue Area", by John S. MacNeill Jr., P.C., dated April 20, 1989. The subject lots, located in a Residence District R-9, are Town of Ithaca Tax Parcels No. 6-54-4-15, -16.1, -16.2, -17, -18, -19, -201 -21, and -22. APPEAL (ADJOURNED FRCM 5-24-89) of Walter Eckert, Appellant, Carl Brewer, Agent, requesting authorization by the Board of Appeals, pursuant to Article XII, Section 54, of the Town of Ithaca Zoning Ordinance, for the extension and enlargement of a non -conforming two-family residence located at 119 Compton Road, Town of Ithaca Tax Parcel No. 6-36-3-4, Residence District R-30. Said residence building is located approximately 20 feet from the east side lot line, whereas a 40 -foot side -yard setback is required. APPEAL (ADJOURNED FRCM 5-24-89) of Jennifer C. Greene, Appellant, Terry Garrison, Agent, requesting authorization by the Board of Appeals, pursuant to Article XII, Section 54, of the Town of Ithaca Zoning Ordinance, for the extension and enlargement of a non -conforming single-family residence located at 235 Forest Hcme Drive, Town of Ithaca Tax Parcel No. 6-66-4-11, Residence District R-15. Said residence building is situated within the road right of way and is within 5± feet of the west side lot line. Zhe proposed extension, at the rear of the residence building, will continue within such 5± fpa+- wpS+- gide lot line. whereas a 15 -foot side yard setback is required. APPEAL (ADJOURNED FRIM 5-24-89) of Scott and Susan Hamilton, Appellants, William Gallagher, Agent, requesting variance from the requirements of Section 5.04-6 of the Town of Ithaca Sign Law to permit an increase in the height of lettering frcan the required maximum of 6 inches to potentially 24 inches with respect to a proposed lighted awning for the proposed Comunercial "A" building at Ide's Bowling Lanes,' Judd Falls Road, Town of Ithaca Tax Parcel No. 642-1-3.21 Business District "C". APPEAL (ADJOURNED FROM 5-24-89) of Marie -L. Brown, Appellant, Randolph F. Brown, Agent, requesting authorization by the Board of Appeals, pursuant to Article XII, Section 54, of the Town of Ithaca Zoning Ordinance, for the extension of a non -conforming use known Indi C reek Fruit Farm and Stand located at 1408 Trumansburg Road, Town of Ithaca as an Tax Parcel No. 6-24-1-25.21, Residence District R-15. ADJOURNED APPEAL (from June 15, 1988 and 5-24=89) of Marie L.'Brown, Appellant, Randolph F. Brawn, Agent, requesting a Special Permit, under Article XII, Section 56, of the Town of Ithaca Zoning ordinance, -and pursuant to Resolution of the Zoning Board of Appeals of May 13, 1987, application for such special permit having been made within the time limit established by said Board of Appeals under said resolution, for the reconstruction of a barn destroyed by fire, at 1408 Trumansburg Road, Town of Ithaca Tax Parcel No. 6-24-1-25.21, Residence District R-15. Said persons in person. Zoning Board of Appeals will at said support of such matters.or objections V Dated: May 30, 1989 Publish: June 2, 1989 time, 7:00 p.m., and said place, hear all thereto. Persons may appear by agent or in Andrew S. Frost Building Inspector/ Zoning Enforcement Officer Town of Ithaca 273-1747 NOTICE OF PUBLIC HEARINGS WEDNESDAY, MAY 24, 1989 7:00 P.M. By direction of the Chairman of the Zoning Burd of Appeals NOTICE IS HEREBY GIVEN that Public Hearings will be held by the Zoning Board of Appeals of the Town of Ithaca on Wednesday, May 24, 1989, in Town Hall, 126 East Seleca,St.reet, (FIRST Floor, REAR Entrance, WEST Side), Ithaca, M N.Y., CORMING AT 7:00 P.M., on the following matter. APPEAL of Louis Bcnanni Jr., J & L Builders, James Hilker, Ralph Thorpe, Michael and Eleanor Winship, Lawrence E. Iacovelli Jr. and John Elmo, and' Pamela E. Sackett, Appellants, Pamela E. Sackett, Agent, requesting authorization. by the Zcning Board of Appeals, pursuant to Article XII, Section 54, 'of the Town of Ithaca Zoning Ordinance, for the extension of noneconforming building lots located in . the area of Kendall Avenue, with said lots originally platted in the name of the Lands of the Ithaca Land Company and filed in the Office . of the Tompkins County Clerk on ' July E 12, 1895,- and . with said lots proposed to be modified as shown on a map entitled "Boundary Survey Map, Kendall Avenue Area", by John S. MacNeill Jr., P.C., dated April 20, 1989. The sub]ect lots, located in a Residence District R-9, are Town of,Ithaca Tax Parcels No. 6-54-4-15, -16.11 -16.2, -17, -18, -19, -20, -21, and -22. APPEAL of Walter Eckert, Appellant, Carl Brewer, Agent, requesting authorization by the Board of Appeals, pursuant to Article XII, Section 54, of the Town of Ithaca Zoning Ordinance, for the extension and enlargement of. a non -conforming two-family residence located at 119 Compton Road, Town of Ithaca Tax Parcel No. 6-36-3-4, Residence District R-30. Said residence building is 'located approxmimtely 20 feet frau the east side lot line, whereas a 40 -foot side yard setback is.required.. APPEAL of Jennifer C. Greene, Appellant, Terry Garrison, Agent, requesting 4 authorization by the Board of Appeals, pursuant to Article XII, Section 54, of the Town of Ithaca Zoning Ordinance, for the extension and enlargement of a non -conforming single-family residence located at 235 ForestdHcme Drive, Town of Ithaca Tax Parcel No. 646-4-11, Residence District R-15. Said residence building is situated within the road right of way and is within 5t feet of the.. west side lot line. The proposed extension, .at the rear of the residence building, will continue within such 5t feet west side lot line, whereas a 15 -foot side yard setback is required. APPEAL of Scott and Susan Hamilton, Appellants, William Gallagher, Agent, requesting variance from the requirements of -Section 5.04-6 of the Town of Ithaca Sign Law .to permit an increase in the height of lettering from the .required maximum of 6 inches to potentially 24 inches with respect to a proposed. lighted. awning for the..proposed Commercial "A" building at.Ide's Bowling Lanes, Judd Falls Road, Town of Ithaca Tax Parcel No. 6-62-1-3.2, Business District "C". APPEAL of Marie L. Brown, Appellant,. Randolph F. Brown,.Agent,:re'questing authorization by the Board of Appeals, pursuant to Article, XII,: Section 5411 Of the Town of Ithaca Zoning Ordinance, for the extension of a non -conforming use. )mown as -Indian Creek Fruit Farm and Stand, located at 1408 Trumansburg Road, Town of Ithaca Tax Parcel No. 6-24-1-25.21, Residence District R-15. ADJOURNED APPEAL (fran June 15, 1988) of Marie L. Brown, Appellant, Randolph F. Brown, Agent, requesting a Special Permit, under Article XII, Section 56, of the Town of Ithaca Zoning Ordinance, and pursuant to Resolution of the, Zoning Board of..Appeals of May 13, 1987, application for such special..permit having been made within the time limit established by said Board of Appeals under said resolution, for the reconstruction of a barn destroyed by fire, at 1408 Trumansburg Road, Town of Ithaca Tax.Parcel No. 6-24-1-25.21, Residence District R-15, Said Zoning Board of Appeals will at said time, 7:00 p.m:, and said place, hear all Persons in support of such matters or objections.thereto.. Persons may appear by agent or in person. Andrew -S. Frost Building Inspector/Zrning -Enforoement Officer Town of Ithaca .273-1747 Dated: May 16, 1989 Publish: May 19, 1989. TOWN OF ITHACA r• :••�� •a 9Ir.. Twi BLED TOWN OF #THACR Date W a a Ls Clerk Ze 2IP_ JUNE 7, 1989 The Zoning Board of Appeals of the Town of Ithaca met on June 7, 1989 at 7:00 P.M. in Town Hall, 126 East Seneca Street, Ithaca, New York. PRESENT. Chairman Henry Aron, Edward Austen, -Joan Reuning, Eva Hoffmann, Edward King, Town Attorney John Barney, Zoning Enforcement Officer/Building Inspector Andrew Frost, Town Planner Susan'Beeners. -OTHERS PRESENT: See Attached Sign In Sheet. Chairman• Aron stated that al•1�.posting .and publication of the. public hearings had been completed and'that proper affidavits of same were in order. Chairman Aron also stated that a notice of this adjourned meeting has been advertised.in the Ithaca Journal, and it was also posted at the Town Hall entrance.. The public has been notified by letter voluntarilyby the Zoning Board of Appeals of the meeting of May 24',. 1,989 which was adjourned. Chairman Aron stated that due to *..this agenda adjourned and. .because it is a long:.agenda he will meeting this evening to 11.00 P:M._ The first item on the agenda wasothe following: having been extend the APPEAL (ADJOURNED FROM 5-24-89) OF LOUIS BONANNI JR., J & L BUILDERS, JAMES HILKER, RALPH THORPE, MICHAEL AND ELEANOR WINSHIP, LAWRENCE E_ IACOVELLI JR. AND JOHN ELMO,AND PAMELA E. SACKETT, APPELLANTS', PAMELA E. SACKETTp AGENT, REQUESTING AUTHORIZATION -BY THE ZONING BOARD OF APPEALS, PURSUANT TO ARTICLE..XII, SECTION 54, OF THE TOWN OF ITHACA. ZONING, ORDINANCE, FOR THE EXTENSION OF NON -CONFORMING BUILDING LATS LOCATED IN THE AREA OF KENDALL AVENUE, WITH SAID LATS ORIGINALLY PLATTED'IN THE NAME OF THE LANDS OF THE ITHACA LAND COMPANY AND FILED IN THE OFFICE OF THE TOMPKINS COUNTY CLERK ON JULY 12, 1895, AND.WITH SAID LOTS PROPOSED TO BE MODIFIED AS SHOWN ON -A MAP ENTITLED "BOUNDARY SURVEY MAP, KENDALL AVENUE AREA", BY JOHN S. MACNEILL JR., P.C., DATED APRIL 20, 1989'6 THE SUBJECT LOTS, LOCATED IN A RESIDENCE. DISTRICT R-91 ARE TOWN .OF ITHACA TAX PARCELS NO. 6-54-4-15, -16.1, -16.2, -17, -18, -19,- 20, -21, AND -22. Town of Ithaca Zoning Board of Appeals June 7, 1989 2 Mr. Steve Sackett, 181• Kendall Avenue, addressed the Board and referred. to a map of Kendall Ave (attached hereto as Exhibit #1.) He explained that the lots that are outlined by the border are the ones in question. The situation is that these lots are bounded by the railroad right-of-way which runs through Kendall Avenue and also the edge of. the. Kendall Avenue right-of-way and when they were resurveyed, it was. found that the original lot sizes were not correct. Discussion followed on the size of the lots in question. Mr. King asked Mr. Sackett -if he --is •saying that the...frontage of these lots on Kendall Avenue is now' being decreased even though the lot area is being increased asA-a result of this survey ,-that shows the corrected.,figures, ,so_that• a half -,foot .of -.the road. frontage in effect is being lost. Mr. Sackett responded that is only on the southerly four lots.. . Mr. Sackett said that in....the: neighborhood there is some question in regard to the area surveys and as a group of neighbors they got together and agreed on these. lot lines without giving up the grandfathering under the original plat. Mr. King- asked if almost.. the. entire southerly. part of Kendall Avenue that Mr. Sackett is referring to on the map has ever been developed as a road. Mr. Sackett replied that it is unpaved and it is currently not used as a road. There is no existing road frontage from lot #215 down. Mr. King asked Mr. Sackett if he is proposing to change any other lines to re -subdivide these lots in any way. Mr. Sackett responded, no, adding that all, they are trying to do is to remove .the problem that was. caused .by a person in the area getting a survey that was in variance with these. Mr. King asked Mr. Sackett if his only. concern then is the fact that the new survey is saying that the residents there are a half -foot short on some of the lots. Mr. Sackett said that is correct, because they would no longer be grandfathered legal building lots. Mr.. King said that he has often wondered about the thing that grandfathers these lots, which was an 1895 subdivision map, and here we are almost a hundred years later still living with the fact that this surveyor .l-aid.Out small lots, at least what we consider small today. He -asked Town Attorney Barney if we are bound by that. Town Attorney Barney responded that he thinks the Town's Zoning Ordinance says that any lot that was plotted by an old subdivision is a valid buildable lot as long as the construction complies with the side yard, front yard and other setback requirements. He stated that what is causing the problem is that Town of Ithaca 3 Zoning Board of Appeals June 7, 1989 if they left it the way it was they would have a valid lot under that provision of the Town's ordinance. By coming in and seeking an effective modification of the subdivision, their concern is about creating a situation where they no longer have the benefit of that grandfather clause.. The changes'are not what he would call overwhelmingly significant in terms of dimensions but because they were sub -standard lots to begin -with and. it is a reduction of frontage of these sub -'Standard lots, it makes them even more sub -standard. Mr. -King asked, if the Board.. grants. a. variance. is the Board saying that we have no argument that those* lots aren't -legally grandfathered. Town Attorney Barney replied- that is correct. Further discussion followed on the matter of grandfathering. Mr. Sackett stated that if this request.as not passed, he thinks the people will rely on the. old map and that will cause some problems in the area with resale of properties and development of adjacent lots. Chairman Aron opened the public hearing. No one appeared to address the Board. Chairman Aron..closed the public,hearing. Bill Hilker, 227 Burns Road,,representing lots #218 and #219 on the map, addressed the Board regarding the lot lines of his properties. I Chairman Aron read the resolution from the Planning Board minutes.of 5/2/89 (page 11), attached hereto as Exhibit #2. . Chairman Aron asked Mr. Sackett and Mr. Hilker if they understand exactly the conditions of the Planning Board resolution.' Mr. Hilker stated that it is somewhat unclear regarding the section of the road being paved prior to building permits. His understanding is, and he would like the Board to clarify it, that they still have the option of having those building permits on the same basis, as others in the Town under the 280-a provision. Chairman Aron asked. Mr. Hilker if he knows what_ the 280-a provision means. Mr. Hilker stated it means that the building permits can be issued on a road that is plotted but not improved. Town Attorney Barney interjected only after approval by the Zoning Board of Appeals and on a demonstration of hardship. After further discussion on the size of the lots in question, Mr. Sackett stated that Lot #220 is 49.53 feet., Lot #219 is 49.63 feet, Lot #218 is 49.79 feet, Lot #217 is 49.98 feet, and Lot #216 is 50.25 feet, and from that point on they all have fifty foot frontage, according to the John S. MacNeill survey dated 5/17/89. Mr. Sackett further stated that this V Town of Ithaca Zoning Board of Appeals June 7, 1989 survey map has been revised meeting, it reflects some of the their resolution. 0 since the Town Planning Board changes which were conditions of 'Chairman Aron stated ,that if there were no further questions, he would entertain a motion as. to whether the Zoning Board of Appeals should or should not grant a variance for those four .lots, numbered 217 - 2209 Mr. Sackett said that all -of the. lots have changed in the area .and he would request that. they be. passed as they are shown on the map rather than just the"bnes.that are sub -standard. Town 'Attorney Barney stated that is•the.Planning Board's prerogative. Mr. King made the following motion: RESOLVED, That the Town of Ithaca Zoning Board of Appeals grant and hereby does grant an extension of a non -conforming use under Section 54 of the Zoning Code, to the extent that the reduction in the width of lots >on Kendall Avenue would be considered an extension of a non -conforming use and are to be precisely as is shown on the .Survey Map by John S. _- MacNeill, Jr., dated May 17, 1989, subject to the following. 1). This action should not beconstrued to extend or diminish any rights which the owners -of the lots might -have under Section, 57 of the Town's Zoning Ordinance concerning platted lots which existed and were conveyed prior to the existence of the Town's Ordinance. 2). That the conditions suggested. by.. the Town's Planning Board in its resolution of May 2, 1989, are conditions which the applicants must comply with before any building permit may be issued for construction on lots #217, #218, #219 and #220. AND, FURTHER RESOLVED, That this Board finds: 1). that the minimal change is due to a recent discovery of variance between the original subdivision map which was filed back in the late 1800s and the facts as they exist currently. 2). no one appeared before the Zoning Board of Appeals in opposition to the granting of this extension of a non- conforming use. - Mrs. Reuning seconded the.motion. U, Town of Zoning June 7, #3. Ithaca Board of 1989 Appeals A vote on the motion resulted as follows: Ayes - Reuning, Nays - None. King, Aron, Hoffmann, Austen. The motion was carried unanimously. -The second item on the agenda was the following. 5 APPEAL (ADJOURNED FROM. 5-24=89) OF WALTER ECKERT, APPELLANT, --CARL BREWER, AGENT., REQUESTING AUTHORIZATION BY THE BOARD OF APPEALS, PURSUANT TO ARTICLE XII, SECTION 54, OF THE TOWN.OF.ITHACA ZONING ORDINANCE, FOR THE ---EXTENSION AND -ENLARGEMENT ..OF.. A..NON-CONFORMING TWO- FAMILY RESIDENCE LOCATED AT .119 COMPi'ON ROAD, TOWN OF ITHACA TAX PARCEL NO. .6-36-3-4, RESIDENCE DISTRICT R- 30. SAID RESIDENCE BUILDING. IS LOCATED APPROXIMATELY 20 FEET FROM THE EAST SIDE. LOT LINE, WHEREAS A 40 -FOOT SIDE YARD SETBACK IS REQUIRED: Chairman Aron read the appeal as attached hereto as Exhibit w Mr.Carl Brewer addressed the Board and explained the reasons for his request to the Board. Mr. King referred to the sketch that was presented to the Board and Mr. Brewer responded to questions.. He stated that he plans to sell his house and move in with his in-laws as they are getting along in years and his wife wishes to be near them. Their request is to extend a living room, a bedroom, and to extend the present dining room by V X 181, all to be inclusive. Mr. Austen asked if both of the extensions are to be two story. Mr. Brewer responded one .story: The bottom extension would be one story and the living room and the bedroom at the top would be the second story extension. Further discussion ensued on the sketch that was before the Board. Chairman Aron read a letter into the record 'from Mr. and Mrs. William Hall of 131 Compton Road, the closest neighbors to Mr. Brewer (attached hereto as Exhibit #4). Chairman Aron opened the public hearing. Mr. William Hall, 131 Compton Road, addressed the Board and reaffirmed his statement that was read into the record by Chairman Aron, that the addition that Mr. Brewer is proposing is fine with him. Town of Ithaca 6 Zoning Board of Appeals June 7, 1989 Chairman Aron closed the public hearing. Chairman Aron referred to a letter dated April 25, 1989, from Andrew Frost to Mr. Brewer, attached hereto as Exhibit #5. He stated that Mr. Frost had requested a,New York State Licensed Architect's or Engineer's plans for the proposed work and he asked Mr. Brewer how he is progressing on that request. Mr. Brewer responded that he is working on it and he will conform to the laws of the Zoning Board. He said .that the plans that he has - submitted are just sketches and .they will be redrawn and resubmitted. Chairman Aron said that if there were no further questions, he„would entertain a motion as to whether or not the Zoning Board 6f Appeals should grant an extension, under Article XII,`'Section 54, of a non -conforming two-family. residence. Mr. Austen made the*followingpmotion. RESOLVED, that the Town of Ithaca Zoning Board of Appeals grant and hereby does grant..an extension of a non -conforming use under Section 54 for the addition to an existing house of approximately 81' by 18''and the addition of a second floor of approximately 19''"with the following conditions and findings of fact: 1. The addition shall not be any closer to the lot line than the existing house, which is 20 feet. 2. This is to make the house large enough for more than two people in the apartment, adding a bedroom and a living room to the existing house. 3. This extension is granted subject to the filing of plans from a registered architect or engineer with the Town of Ithaca Zoning Officer. 4. The nearest neighbor has no objections to the proposed addition and no one else appeared to protest the proposal. 5. That the distance between the two houses will be roughly 90 feet. 6. That this house is non -conforming because the house is only 20 feet from- the easterly lot line toward Mr. Hall's property rather than the 40 feet required by the ordinance, but the Board finds that the proposed extension would not encroach do that narrow side yard Town of Ithaca Zoning Board of Appeals June 7, 1989 7 and, therefore, does not exacerbate that which makes it non -conforming. 7. That the Board finds that the purpose of the extension, namely to permit the children of the owners to take care of their elderly parents, addresses _a_ very pressing community need. Mrs. Hoffmann seconded the motion: The voting on the motion resulted.as follows: Ayes - Aron, Austen, Hoffmann, King; Reuning. Nays - None. :. The motion was carried unanimously. The next item on the agenda was the following. APPEAL (ADJOURNED FROM.5-24=89) OF JENNIFER C. GREENE, APPELLANT, TERRY GARRISON, AGENT, REQUESTING AUTHORIZATION BY THE BOARD OF APPEALS, PURSUANT TO ARTICLE XII, SECTION. 54, OF THE -TOWN OF..ITHACA ZONING ORDINANCE, FOR THE.EXTENSION-AND'ENLARGEMENT OF A NON- CONFORMING SINGLE-FAMILY RESIDENCE LOCATED AT 235 FOREST HOMEDRIVE, TOWN OFdITHACA TAX PARCEL NO. 6-66- 4-11, RESIDENCE DISTRICT R=15. -SAID RESIDENCE BUILDING IS SITUATED WITHIN THE ROAD RIGHT OF WAY.AND IS WITHIN 5 + OR - FEET OF THE WEST SIDE LOT LINE. THE PROPOSED EXTENSION, AT THE REAR OF THE RESIDENCE BUILDING, WILL CONTINUE WITHIN SUCH 5 + OR - FEET WEST SIDE LAT LINE, WHEREAS A 15 -FOOT SIDE YARD SETBACK IS REQUIRED. Ms. Greene addressed the Board and explained her request to the Zoning Board of Appeals. She stated that she has just adopted a child and would like to expand her house to accommodate more people. The house is a legal. non -conforming house and the expansion will not exacerbate the problem; it will just extend it in terms of the laws about how far the house needs to be from the side property. Chairman Aron read into the record a letter from Terry N. Garrison and Roger W. Garrison, dated April 29, 1989 (attached hereto as Exhibit #6` and a letter from Karen Baum and John Hoffmann, dated May 5, 1989, (attached hereto as Exhibit #7), stating their approval for this proposed addition. Chairman Aron referred to the photos that were presented to the Board and asked Ms. Greene what is located on the first floor now. Ms. Greene responded that there is a small entryway, small Town of Ithaca Zoning Board of Appeals June 7, 1989 kitchen, bath, a living room and a screened in porch. Chairman Aron then asked Ms. Greene what is located on the second floor. Ms. Greene replied that there are 3 bedrooms and a bath. Ms. Greene stated that downstairs there is really only one room which serves as a living room, den, dining room and everything. The proposed modification is to take the screened in porch and make that the year-round room and while doing that, extend the back bedroom over what is currently the porch to enlarge it. She further stated that one bedroom is moderately sized, the others are tiny. Mrs. Hoffmann referred to the .survey map that was submitted to the Board and asked Ms-. Greene questions to which she responded. She said that. the main need is -the.downstairs.living space, to have a better place to eat, to have a play space, and while doing that she would very much like to make one of the bedrooms a little bit larger so they. would, have two moderately sized bedrooms and one small one. Chairman Aron opened the public.hearing. No one appeared to address the Board. Chairman Aron closed the public hearing. Discussion followed on the.closeness.of._.the house to the lot line. Mr. King said that' the southerly side of the lot is of a much lower elevation going down toward the creek level and if it is encroaching on the west line of the' common boundary with Mr. Garrison, the owner on the west, the Board.. has a letter that he has seen the plans and approves them. ., Chairman Aron stated that if there were no further questions, he would entertain a motion of whether or not the Board should. or should not grant Ms. Greene permission to build the addition to her house that she is requesting., which is a non- conforming use under Article XII, Section 54. Mr. King made the following motion. RESOLVED, that the Town of Ithaca Zoning Board of Appeals grant and hereby does grant the request of Ms. Greene for the extension of her house at 235 Forest Home Drive in accordance with the architectural plans submitted which are dated May 9, 1989, by Demjanec and Associates Architects, upon the following findings. 1s that the extension is relatively minimal and would have a very small impact, if any, upon any neighbors. 2* that the neighbors on the east and west sides of the existing house have submitted written approvals to the Board stating that they have examined the plans and they approve of them. Town of Ithaca Zoning Board of Appeals June 7, 1989 0 3. the house is a very small structure and the proposed enlargement is relatively minor and the extension would be 300 of the area. 4* that it will serve the useful purpose of permitting this old existing non -conforming use to house more people. Mrs. Reuning seconded the motion. The voting on the motion was as follows. ..Ayes'- Aron, Reuning,. Austen, Hoffmann, King. Nays - None. The motion was carried unanimously. The next item on the agenda was the .following. APPEAL (ADJOURNED FROM 5-24-89) OF SCOTT AND SUSAN HAMILTON, APPELLANTS,. .WILLIAM GALLAGHER, AGENT, REQUESTING VARIANCE FROM THE.:REQUIREMENTS OF SECTION 5.04-6 OF THE TOWN OF ITHAOA..SIGN LAW TO PERMIT AN INCREASE IN THE HEIGHT OF L RING'.FROM THE REQUIRED.. MAXIMUM OF 6 INCHES 'TO- ''POTENTIALLY 24 INCHES WITH RESPECT TO A PROPOSED LIGHTED AWNING -FOR THE PROPOSED COMMERCIAL "A" BUILDING AT IDE'S BOWLING LANES, JUDD FALLS -.ROAD, TOWN OF ITHACA :TAX .PARCEL NO. 6-62-1-3.2,. BUSINESS DISTRICT "C". Chairman Aron read the Appeal that the Zoning Board of Appeals environmental review. into the record and stated is the lead agency for Mr. William Gallagher, Agent, addressed the -Board. He stated that they are proposing to utilize a lighted sign/awning combination structure for the frontage on a commercial building on the site on Judd Falls Road. He explained that the reason for utilizing this particular device is mainly economic in that they can get several benefits out of the use of this structure, such as lighting for walkway, lighting for signage, a place in which to place signage, color and texture variation for the building and inherent in the product itself. He circulated a color photograph of -an example of the type of awning that they would like to employ. Mr. designed Gallagher and said that this is built to sizes and specifications a custom product and as required can be of the building to each individual situation. He remarked according to the signage law, awnings which are thought typically to be smaller devices on the fronts of buildings by doors, that have r Town of Ithaca Zoning Board of Appeals June 7, 1989 10 been limited to 6 inch high lettering. In the case of having individual store signage viewed at a distance, the 6111"height is a practical difficulty for them. The closest point to the road is about 30 feet, the farthest point is about 60 feet. Chairman Aron read from Part II and Part "III of the Environmental Assessment Form, --signed by Ms. Susan Beeners, Town Planner, and dated May 16, 1989. (Attached hereto as Exhibit #8.) Chairman Aron... asked if anyone would -like to speak on the environmental review as he has read -it. Noone -.appeared. Mr.. Austen made the I following ,motion in regard to the environmental assessment review: RESOLVED, that in the matter of the Appeal of Scott and Susan Hamilton, Appellants, William Gallagher, Agent, requesting variance from the requirements of Section 5.04-6 of the Town of Ithaca Sign Law to permit:an increase in the height of lettering -from the required maximum of 6 inches to potentially 24 inches. with respect to a proposed lighted awning for the proposed commercial "'A" building. at Ide's Bowling Lanes, Judd -Falls Road,- Town "of .Ithaca Tax Parcel No. 6-62-1-3.2, Business District I"C",- the Town of Ithaca Zoning Board ofkAppeals make and hereby.doe.s make a negative declaration of environmental significance. Mrs. Reuning seconded the motion. The voting on the negative declaration resulted as follows: Ayes —Aron, Reuning, Austen, King, Hoffmann. Nays - None. The motion was carried unanimously. Chairman Aron opened the public hearing. No one appeared to address the Board. Chairman Aron closed the public hearing. Chairman Aron asked Mr.' Gallagher how deep the awning is; from the wall coming out, what is the extension. Mr. Gallagher replied that the total extension at the moment would be 5 feet, enough to cover the walkways in the front of the building. Chairman Aron asked what the candle power of the lighting is. Mr. Gallagher replied that that has not been determined yet, it will be based upon what they will need to light the walkways as well. There will actually be two light sources in the awning but as of yet that has not been designed. o IN Town of Ithaca Zoning Board of"Appeals June 7, 1989 11 Chairman Aron asked Mr. Gallagher if the candle power will be so strong that it will reflect on the road where people are coming in and going out of the P&C lot. Mr. Gallagher responded no. He presented an example of the awning fabric to the Board members. Mrs. Hoffmann asked if there would be' -a variation in the color of the awning. Mr. Gallagher said not. in the color of the awning; they do not feel that a variation in color would serve any purpose other than to disturb. the image that they want to portray. What they may have is a stripe -above-.and below the lettering as is shown in -the picture'that.i'sbefore the Board to sort 'of contain the lettering with-in.the awning and give it a base upon which to -sit. -He• stated -they would certainly.. -not -from one establishment to another change colors, that is not in the plan. Mrs. Hoffmann said that she is a little worried because there is something similar at.the Triphammer Shopping Center and she would object to something like.that. Mr. Gallagher responded to her concerns. Mr. King stated that the'.Planning Board recommendation was that the height of the letters not exceed 18" and asked Mr. Gallagher his feelings about that recommendation. Mr. Gallagher responded that he thinks that was a fair determination, that 18" would be adequate. Ms. Beeners asked Mr. Gallagher if he thinks that would be adequate even with the landscaping that is required along the street. Mr. Gallagher replied that there may be some practical difficulties with the location of some of the trees and the height and type for the front of Judd Falls Road.. -His feeling is still however that 18" can be utilized effectively.' He stated that he would, of course, prefer to see the flexibility of using 24" but 18" is certainly within a scope that they can work with. Chairman Aron read the adopted resolution from the Planning Board meeting of May 16, 1989, which is attached hereto "as Exhibit #9. Ms. Beeners stated that there was some additional discussion on this, not only related to color but also related to type style. She said that perhaps the Borird should be aware ::hat Mr. Gailagher did want to have some flexibility for the location of logos or some kind of customized type style that might be something one would associate with a specific product. Mr. Gallagher responded that that is correct. Several of the enterprises which may be setting up business in this Town of Ithaca Zoning Board of Appeals June 7, 1989 12 particular building have logos already generated for their businesses. The attempt would be made to utilize that logo for recognizability for those businesses and to place it in the signage in such a way, through the use of color and bordering strips, to organize it. In all fairness to the building and the landlord involved as far as being able to have an advantage in rentability that exists elsewhere,.he believes they will take. the opportunity to approach the. Planning Board and the Zoning Board of Appeals again on Individual store sign.type-face. Mr. King referred to the Planning Board's requirement of landscaping as a condition. Ms. Beeners stated that landscaping. is required as part of the site plan approval for the project. Mr. Austen asked if the :logos would be'on the' building or on the awnings. Mr. Gallagher said they would be on the awnings. Mr. King said there is one thing that is not clearly addressed here and that is the manner and intensity of the lighting. He thinks that any. approval .that is given should be subject to the Building Commissioner',.s approval of the particular proposed lighting as coming under the directives of the Sign Ordinance and if they don't, the :matter .should come back to the Board for a variance. Mr. Gallagher responded; that:their intention has been to treat each individual enterprise sign graphics and consequent lighting as an individual application for the sign approval for each store and that would, of course, include the lighting. Chairman the lighting replied that Aron asked for all the is correct. Mr. Gallagher stores would if .he is saying that all be equal. Mr. Gallagher Ms. Beeners asked if it was acknowledged that they would install wall mounted signs in excess of what is being requested. Mr. Gallagher said that what was brought up at the Planning meeting was simply that there would be a wall mounted sign for the project proper, on.the building, probably at the tower which is closest to Mitchell Street along Judd Falls Road. In lieu of a free standing sign along Judd Falls Road, which was approved in the site plan, his feeling.in,looking at that sign which did gain approval, was that the road side has become littered with signs of that nature and he would rather see the signage removed from that particular area. This, of course, would be subject to the approval of the Town Engineer and placed on the building as is allowed through the Sign Ordinance. Chairman Aron said that if there were no further questions, he would entertain a motion. Town of Ithaca 13 Zoning Board of Appeals June 7, 1989 Mrs. Reuning made the following motion. RESOLVED, that the Town of Ithaca Zoning Board of Appeals grant and hereby does grant a.variance to increase the size of the sign of the .project as proposed by Scott Hamilton/William Gallagher as resolved by the Town of Ithaca Planning Board and that this Board adopt their conditions as read into the record 'previously, with the following findings. Z. That 'practical difficulty-ha.s -been demonstrated because this commercial building needs to have more public visibility. 2. There is no impact on the area because across the street and on both sides of the building there are commercial establishments, and no residential areas are affected. 3. That there is an understanding with the applicants that the builder will present to the Zoning -Enforcement Officer the proposed. lettering for each particular retail outlet as ,it _...is sold; --including amount and intensity and manner of lighting for that sign. 40 That if the Zoning Officer finds that 'any particular proposal would seek to 'violate some' other section of the Sign Law other than Section 5.04-6, which is the Section that the Board is granting the variance on, that will require a separate application to the Zoning Board of Appeals. 5. That having signs on awnings such as is proposed would clean up the situation with the free standing signs and I t would allow a situation where there are smaller signs,'therefore it will be more attractive. Mr. King seconded the motion. The voting on the motion was as follows:. Ayes - Aron, Reuning., Austen, King, Hoffmann. Nays - None. The motion was carried unanimously. Town of Ithaca Zoning Board of Appeals June 7, 1989 The last items on the agenda were the following: 14 APPEAL (ADJOURNED FROM 5-24-89) OF MARIE S. BROWN, APPELLANT, .RANDOLPH. F. BROWN, AGENT, REQUESTING AUTHORIZATION BY THE. BOARD. OF APPEALS, PURSUANT TO ARTICLE XII.. SECTION. -541 OF THE TOWN . OF ITHACA ZONING ORDINANCE, FOR -THE EXTENSION OF A NON -CONFORMING USE KNOWN AS INDIAN CREEK FRUIT FARM AND STAND, LOCATED AT 1408 TRUMANSBURG.ROAD, TOWN OF ITHACA TAX PARCEL NO. 6- 24-1-25.21, RESIDENCE.DISTRICT R-150 ADJOURNED APPEAL (FROM JUNE 15, 1988 AND 5-2489) OF 'MARIE 'L. BROWN, -RANDOLPH F. -BROWN,. AGENT-, REQUESTING A SPECIAL PERMIT, UNDER'ARTICLE XII, SECTION 561 OF THE TOWN OF ITHACA ZONING ORDINANCE, AND PURSUANT TO RESOLUTION OF THE ZONING BOARD-OF.APPEALS OF MAY 13,- 1987, APPLICATION FOR SUCH SPECIAL -PERMIT HAVING BEEN MADE WITHIN THE TIME -LIMIT ESTABLISHED BY SAID BOARD OF APPEALS UNDER SAID RESOLUTION, FOR THE RECONSTRUCTION OF A BARN DESTROYED BY FIRE, A71408 TRUMANSBURG ROAD, ..TOWN OF ITHACA TAX PARCEL NO...5-24-2-25.21, RESIDENCE - ...... DISTRICT -R-15. Chairman Aron read the Appeals.and asked the members of the Board -whether or not both Appeals should'be .combined into one or should they be handled. -separately.. . Mr. King said that any resolution should deal with each Appeal separately but he thinks it would speed things up if people were allowed to comment on both Appeals at the same time without distinction. Chairman Aron commented that the possibility might be that one might run into the other, and suggested that the Board deal.with them separately to see how far the Board gets.. He. asked the -advice of Town Attorney Barney. Town Attorney Barney replied that .he thinks the Board can hold the public hearings on.both of the Appeals at the same time, but at the time of the voting, they will need to be separated. Attorney Stephen Heller,. representing Randolph Brown, addressed the Board. He stated that as he understands it, they are in front of the Board for two things: the first being pursuant to the Order of the Appellate Division after previously having come before this Board and receiving approval to extend a non -conforming use at the Indian Creek Fruit Farm and they are back now because the Appellate Division, as he understands the decision, wanted this Board to make express findings of fact in conformance with what they heard at the hearing and to allow an additional opening of the public comment. He further stated that with regard to the actual variance of non -conforming use, the Town of Ithaca Zoning Board of Appeals June 7, 1989 15 Appellate Division, as he read_s..it, upheld this Board's determination that an extension, of a non -conforming .use was granted and properly so. Chairman Aron stated that was in regard to the greenhouse. Atty. Heller concurred that that was correct, adding that the first Appeal is in regard to the greenhouse and that is pursuant to the standards enumerated in Section 77, Subdivisions A = F of the Zoning Ordinance. He said, that, in support of this re -appeal for Special Approval pursuant to Section 77, he would submit that all of the factors that pertained initially when this was before the Board last year or whatever year it was-, still apply; that is to say that due to an unfortunate circumstance a barn burned down on the property and Mr. Brown came before the Board seeking permission to erect a .modest s,ized'greenhouse because he did not have the funds at that point to rebuild the barn. Atty. Heller stated that he would submit that under Section 77, Subdivisions A - F,those various standards that need to be addressed by this. Board,* and which were addressed the last time, are still in effect and he would like to go through those briefly for the Board's consideration at this time. Atty. Heller stated that the first standard is' to promote the health, safety, morals and general welfare_of the community and he thinks there is no question but that the greenhouse would do that. The Indian. Creek Fruit Farm, which is really what we are talking about here, and.the viability..of the Indian Creek Fruit Farm, does that. It is providing a service to the community. As.he understands it, it is the one remaining produce farm stand on West Hill with the closing of the Poyer Orchards. He does not think there is any question but that it is an asset from the standpoint that it is a farm and serving the public with farm produce. It is in a rural 'community up on West Hill, and it preserves open land and open space with, very minimal -impact. Atty. Heller said that the second item is whether the premises are adapted to the proposed use and if it fills a community need. .Again, the same community need is met by the providing of farm products to West -Hill residents, and certainly a greenhouse type structure on, a produce farm is fully in compliance with the -proposed uses we are not talking about a high rise apartment building for the marketing.of these items. Atty. Heller said that in regard to whether it is consistent with. the character of the district, he.does not think there is any question that it Historically, for more than one hundred years, this has been a farm, the' old Frear's farm on West Hill, and it was converted to a fruit farm many years, ago and the current owners continue in that operation as a fruit farm. It had many incarnations in fact as a fruit farm and not as a fruit Town of Ithaca 16 Zoning Board of Appeals June 7, 1989 farm in .that exact location, including a restaurant as he understands it, according, to local residents. But it is now continuing in its non -conforming use that was granted when .the Zoning Ordinance came into effect. Atty. Heller stated that in terms of the next section, being whether the use is detrimental or devaluing to the neighborhood property or a serious inconvenience, he thinks again you can point to the fact that the historical'use here is the same as it has always been. The greenhouse. is not any more an imposing structure than -was always on that site a.rid it is clearly .a less imposing structure. -its use is"for the .same use that has always been at that site and that is for -the marketing of farm produce. Property values on West Hillcan It_ possibly be negatively affected by this structure and this operation, as it has been in existence out there for all these years and property values have not gone down over these years.. It. is not an. inconvenience, rather it is a convenience as it enables residents to get this produce without having to travel into Ithaca and'he thinks this has been addressed by the. .environmental review; that it provides the ability for residents in that area to , avoid the Octopus, to avoid going into town, thereby reducing traffic flow. There is certainly no change to the neighborhood.. as. a.. result, of this because it has been there all these years..'He said that they are not seeking anything different:- Essentially the operation is exactly the same as it has been historically. -over the years and is properly grandfathered in the non -conforming use standard. Atty. Heller stated that the next consideration is safety in terms of ingress and egress and this has been extensively studied the last time they were before the Board 'by the Department of Transportation. This Board properly adjourned the last series of applications to assure that -the. DoT. adequately studied it and they did adequately study it and Mr. Brown made' modifications completely in conformance with those recommendations and requirements of the DoT and is presently in conformance by having parking restricted to the rear of the stand between where the present greenhouse is and by assuring that there is no parking in front of the stand between 'the road, Route 96, and the stand. The driveways are clearly marked for people to travel in a circular route behind the stand and that is again exactly the same as it was when we were before the Board the last time and approval was granted. Atty. Heller said that, in regard to whether there -is any detrimental impact on the community as a whole, for all the same reasons, there is not any detrimental impact. The increased load on municipal services is negligible and he thinks the environmental review speaks to this more articulately than he can. Traffic has already been addressed; there is .really no Town of Ithaca Zoning Board of Appeals June 7, 1989 17 added burden on municipal services whatsoever from the use as a fruit farm and the greenhouse. For all those reasons, he would submit that there is no change and there would be no reason that he can understand why the Board would'modify its former position because the situation that they are presenting now is'essentially the same as before, with one exception, and.that is that now they are also here with regard to the. barn-. He asked if he should speak to that issue now. Chairman Aron asked him to* stop,'there because the public will have a chance to speak and that will- probably -come up there and Atty. Heller.will have a chance.to speak to that as well, but if he wants to go ahead he can. Atty. Heller pointed out that on the issue of the greenhouse, a number of petitions have been signed and he would like to provide them to the Board .for. the record. (Attached hereto as Exhibit #10). Chairman Aron asked.Atty. Heller how long he had had the petitions. Atty. Heller replied that many of the .petitions were obtained prior to ---the last hearing on this issue. Town Attorney Barney asked Atty.7- Heller if he means before the hearing of May 24th which. was adjourned. Mr. Brown -- replied. that they began obtaining signatures.,.on this petition at the time of the determination against them .as far as the building of the greenhouse. This was after the construction of the greenhouse, permission for which was granted by -the Zoning Board of Appeals, but before the determination by the Appellate Division. He further stated that the last.page of signatures was obtained recently, within the last three weeks. Mr. King asked if the Board had had a -copy of this petition presented to them previously. Mr. Brown replied that this .was not in existence prior to any meetings that they..have had. Atty. Heller interjected that the. petition was circulated. and signed after this Board made its determination granting the approval of the extension of the non -conforming use and while the matter was in litigation in the courts. Therefore, this is the first opportunity that the Board has had to see it. Mr. King asked if Counsel for Mrs. Bowers received a copy of this petition or don't they know what is in it either. Dirk Galbraith, Attorney for Mrs. Bowers, stated that he did receive a copy of it and he did read it brie`ly. Mrs. Bowers is reading it now and he would just as soon go on with the hearing rather than waste time. He stated that he has no objection if the Board accepts it for the record. Atty. Heller said that in addition it is his understanding that numerous -letters have been sent directly to the Board and he Town of Ithaca 18 Zoning Board of Appeals June 7, 1989 asked that those be read into the record. Chairman Aron stated that he is coming to that. Atty. Heller stated that in regard to the barn, as the Board knows, the barn burned down a number of years ago and this Board has graciously extended Mr.'Brown's time to apply for permission -to rebuild that barn in accordance with Section 56 of the Zoning Ordinance and they are now here once again to discuss permission to, rebuild the barn.' -He said that it" has been their position "that with the burning of the barn, it gaives an opportunity for the owners to" ask to 4 ,site the . barn in a better location for everyone, really. By this he means that- rather than having the barn in the old location which was very close to the property line., for which under .the Zoning.. Ordinance, Section .56, permission to rebuild 'in that exact site is specified, they are planning and they would like to ask. the Board for permission to move the barn to extend the non -conforming use to a site that is more consolidated with the present greenhouse, the stand and the location. He said that the. old barn was very close to the neighboring property on -the south side, very close to the Bower' residence and to that property line, and it was a large, old type 3 -story wooden structure _of ''immense. proportion. What they. are proposing at this point, with the Board's permission, is to consolidate the greenhouse:and.barn into one structure of overall square footage substantially less than what the old barn was. Atty..Heller stated that, in similar fashion to the previous application where he thinks the Board, mentions that Mr. Brown is going to clean up the area by putting that awning up, this will,. in a sense, clean up the number of structures" that were previously at the site by consolidating them into one. He said that he would like to remind the .Board that permission has already' been granted to build a structure directly, behind the present stand for walk-in.coolers and:that permission was granted in 1984. What they are proposing with the barn. and greenhouse unit together, is not to. have to build that extra structure behind the stand because the walk-in coolers would be incorporated directly into the ground floor of the barn and that ground floor of the barn would actually be the basement because there is a hill of land directly.behind the stand where it would be located. He remarked that he thinks this -is an ideal type of resolution because one of the very reasonable objections that a neighboring property owner might have, and that he understands the Bowers did have is that the barn so close to their property line was an imposing sight for them; it cut off their view; it meant that the farm operation was very close to their. house operation. This movement to directly behind the stand would be beneficial for the Bowers because it moves it away from that property line. In addition, rather than being a 3 -story barn, they are proposing a much more streamlined 2 -story barn that e Town of Ithaca Zoning Board of Appeals June 7, 1989 would not be seen from the road in the same fashion, so altogether it is a really a consolidation. Square footage wise, the old barn had 2 1/4 floors of usable storage floor space and It totalled some 8,370 square feet. The -new barn that they are proposing incorporates the square foot floor space of the greenhouse, and by incorporating, he is saying that they are reducing the size of the proposed barn so that the square footage is actually less than what they had -in the old barn, including the ,greenhouse. In a sense it is :a less imposing structure altogether and it is smaller and it will be more efficient and better suited to the needs of the community and.the needs of Mr. Brown. That barn is proposed to be 36' X,96' and the greenhouse would actually be the front wall, first. story, so it would be similar to a house that has a greenhouse wall •-on the front -.of it in that there would be direct access into the barn from the greenhouse. It would just be. the -front wall of the .barn, so it I s really one structure, not two.structures. Atty. Heller went, on to say that this, again, is an extension.of the non -conforming use as opposed to a variance and they are asking for it under that section because Section 54 talks in terms of alteration,411no non -conforming use or building shall be extended except as• -authorized -by the Board..of Appeals." And then, in the definition. section, Section 29, "alteration as applied to a building or structure" is defined "as.a change or rearrangement or an enlargement by extending- on a• site or by increasing in height or moving from one location or position to another." Atty. Heller stated that, thus, he would submit respectfully, that this falls directly within that definition of alteration and alteration is tantamount to extension of non- conforming use under this ordinance.. He stated that what they are asking for is a movement from the old site built way back in the old days when it was one farm, incidentally,. the Bower house was part of that, to become more in compliance with what is happening up there now and to satisfy the, needs of all the community, the neighbors as well. Attorney Dirk Galbraith, representing Mr. and Mrs. John Bowers who are adjoining neighbors, addressed the Board and stated that he has one or two questions that he would like to ask Attorney Heller to get some clarification about some of the things he has said. He questioned if it was the Appellant's position that what is sought here is. an extension of non- conforming. use rather than a variance. Atty. Heller responded that this is an extension of a non -conforming use that is being sought; it is clearly not a variance that is being sought; it is under Section 77(7) and Section.54 in the Zoning Ordinance as he has explained. Town of Ithaca Zoning Board of Appeals June 7, 1989 NEI Mr. King asked if that is in both cases, for the erection of the barn or the re -erection in a different place and the continuance of the greenhouse. Atty. Heller replied that for the continuance of the greenhouse certainly it is under that Section as an extension because they are bacl� before the Board by virtue of the Appellate decision that the Board already properly decided and that the Appellate Division upheld -that. For the erection of the barn in its exact state as it -was at the time it burned, that is not asking for an extension of a non -conforming use, that is simply asking for permission under Section 56 to rebuild a structure, restoration. Town Attorney Barney interjected that as he understands it, Atty., Heller's request -tonight%d s not, to. rebuild on. the. prior location and that has to be an extension of a non -conforming use. Atty. Heller responded that that is correct. Atty. Galbraith stated that he would like to know what the Appellant claims is the non -conforming use that is being -extended here. Atty. Heller stated that h'e thinks that is quite obvious, it.is the barn and stand and farming ,operation as it has existed in an area that has now been re zoned,: or zoned, R-15 when this operation was in existence prior..to;that .zoning change. So they are asking for permission to do exactly what has been done there for the last 100 plus years. Town. -Attorney Barney asked if that is on a larger scale or larger quarters.- Atty. Heller responded, not on a larger scale and not on larger quarters, essentially smaller quarters, consolidated quarters. Town Attorney Barney stated that he thinks that at this moment we have to start at the point that we have a fruit stand, period:`% The greenhouse is a result of the Appellate Division decision that it is not supposed to be there without going through this process again. He stated that it seems to him that Atty. Heller is starting from.a position of having a fruit stand, they are operating the fruit .stand, retail sale of fruit, and - storage of fruit. He asked if-the.greenhouse is a furtherance of that activity or is it a different activity. Atty. Heller responded that he would like to clarify what he thinks the non- conforming use has been. It.is'not simply a fruit stand. It is a farm produce market farm stand, and he thinks that definition may be something that needs to be thought about. This is a market stand for the marketing of farm products that are grown from the land. The historic -use has been as a farm, not necessarily as a fruit farm.' It evolved into a fruit farm. Town Attorney Barney stated that he thinks he knows where Atty. Galbraith is coming -from and he asked Atty. Heller to explain what it is that they are doing now that they are extending. Atty. Heller replied that they are asking for Town of Ithaca Zoning Board of Appeals June 7, 1989 21 permission to move the location from where the old barn was to a new site on that parcel. Mr. King asked Town Attorney Barney if this isn't simply an agricultural use and the fruit stand and sales operation is incidental to agricultural business here, when agriculture is not permitted in R-15 zones. However, this was a prior- legal non- conforming use. Town Attorney Barney stated that as far as he is concerned that is correct. 1 He said that the stand- itself is an existing non -conforming use; the barn;• beforelit burned down, was presumably an existing non -conforming use.. Under one section of the Town's law, he does not think there is any question that, as long as this Board extends the time to do.gso, that barn can be reconstructed at that location.... The.._stand can, continue, to be used. He said that he is having some difficulty understanding exactly what it is that is being sought here in terms of an extension of a non -conforming use.. There is nowhere in the Town's ordinance that talks about moving a non -conforming use. Atty. Heller remarked thathe thinks actually there is. Town Attorney Barney said that then it is an extension and then we go on to discard anything .about re -erecting the barn because we are now talking about extending the non -conforming use in a different location. Atty. Heller said that he thinks that is a fair statement. He said that what he was inserting was an additional step in there that may not be necessary. Town Attorney Barney said that then the question is what is it that is going on at the fruit stand that the barn is going to continue; is there a different activity at the greenhouse than is going on at the sales stand out in front. Atty. Heller responded that the greenhouse and the fruit stand are separate physically as are the uses; the fruit stand is where the stuff is displayed and marketed, the -greenhouse is where it is grown, displayed and marketed. You cannot use the farm stand as you would the --greenhouse. The greenhouse has been erected as a partial replacement of the barn that burned down and what they are asking is to rebuild the barn for all the uses that were allowed previously and to continue those exact uses, that is, storage and sales in the barn, -only to have the barn be of a different design than the old barn. He said that the barn that they are asking permission to build would have a greenhouse front on one wall, the greenhouse already being there, and the barn would be directly behind it as part of it. Therefore, there is really no change in use. from what was there when the barn was erected on its site - there is not a change in use. Chairman Aron asked Town Attorney Barney if when this Board granted its Special Approval for that greenhouse and also at the meeting of June 1988, discussed the matter as to the rebuilding Town of Ithaca Zoning Board of Appeals June 7, 1989 22 of the barn, was not that greenhouse meant to be an extension of I a non -conforming use to start off with. He further said that if that barn is moved from the original location as the law provides to another location, would it not be a further extension of the non -conforming use. Town Attorney Barney replied that he does not think there is any question about that. Chairman Aron said that then in other words we have two extensions, one for the greenhouse, the other one is a further extension of the non -conforming use. Atty. Galbraith stated that -the final question that he would like to ask the appellant is:• is it.claimed by the appellant that there is one. .word of testimony. in. the -,.record before this Board at this momentthat the fruit stand is in fact a non -conforming use as defined in Article XII of the Zoning Ordinance. He stated that he is going to answer that question. He is going to suggest that there is not one word ,of testimony that has been presented by the appellant either in 1987, 1988 or this year, and that, in fact, the fruit stand is not a pre-existing non -conforming use and he is prepared to introduce testimony upon direct knowledge before this Board this evening to that effect: He respectfully submitted that not only can this Board not grant this application -� on the basis that it is an extension of-a"non-conforming use � because it has not been demonstrated that in fact it is a non- conforming use, but the operation of.the fruit stand itself is illegal. Atty. Galbraith further said that with that, he is prepared to present testimony on the point. Chairman Aron asked if first of all, may he answer that to the best of his knowledge. He said that he has been living out there for 20 plus years. Town.Attorney Barney suggested that the Board should hear the evidence.and then he can testify. Atty. Galbraith suggested that if the Chairman is going to.testify, he should properly disqualify himself if he intends to be a witness. Chairman Aron remarked that he does not testify. Atty. Galbraith stated that he has an affidavit of Gerald D. Hall which is only signed this.evening on this point and he would like to present it to the Board. Chairman Aron read into the record the document signed by Gerald D. Hall and stated that. he only accepted it as a statement as it did not have the number of the notary public on it and the date and signature of the notary was illegible. (Statement attached hereto as Exhibit #11). Town Attorney Barney stated that he has .difficulty with Atty. Galbraith's argument because this case was litigated all the way up to the Appellate Division and there was an explicit Town of Ithaca 23 Zoning Board of Appeals June 7, 1989 finding in the Appellate Division that the fruit stand constitutes a legal non-conforming.use. Atty. Galbraith responded that he recalls that from the Appellate Division decision, too but. the interesting, thing about it is that there is absolutely no evidence before the Board on the point and he can —only imagine that it is dictum in the decision. Town Attorney Barney said -.that he does not think the Board takes evidence -on things that have --been conceded. He doesn't know -if it was ever really argued either way previously before the'Board or before the Court, but once litigated, he.asked Atty. Galbraith if the Board isn't bound by the Court's determination of legal non -conforming use. Atty: Galbraith replied that he does recall that .when Mr. and Mrs. Bowers come to address the Board in 1987, they were denied permission to do so, therefore, he thinks that if there was no evidence before the Board then, it wasn't for the want of trying. Town Attorney Barney stated that what. he is saying is that now we have a judicial decision that ruled in this specific case, with these same specific people, and he is not sure that this Board is in a position to overrule•.the Appellate Division of the Supreme Court of the State of New.York on that issue. Atty. Galbraith said that he is not sure that the Appellate Division reference to that point is based on any finding of fact that was made by this Board. In fact, he would rather think that it was not and inasmuch as the matter.has been remitted to this Board for reconsideration, he thinks now is the appropriate time to raise the question. If the appellant thinks that this was in fact a non -conforming use of the fruit .stand, he would be interested to hear the proof on that. He stated that.Mr. Hall is present this evening and he is prepared to discuss with the Board Mr. Spaeth's residence in the fruit stand and the fact that it was not used for retail sales of fruit. for a 10 year period. Town Attorney Barney- said that one of the major issues before the Appellate Division was what standard was to be used in_ making a determination-- whether it was an unnecessary hardship or practical difficulty variance standard, or whether it was the subdivision A -F standards relating to Special Approvals. The Court specifically said it is the Special Approval standard, of course that oriy applies to an extension of a non -conforming use, it does not apply to granting of variances. Atty. Galbraith remarked that that is right. Town Attorney Barney said that his initial reaction is that that is an issue that has really been addressed by the courts, and decided, and we. are beyond that point now; we cannot legally go back and rehash it. Atty. Town of Ithaca 24 Zoning Board of Appeals June 7, 1989 Galbraith said only to the point that the Court reviewed the evidence before this Board and its findings and nowhere in the evidence or the findings was there any mention of whether this was or was not a non -conforming use, that seems to have been excluded. Town Attorney Barney asked if that was an issue, why wasn't it raised and argued at the Appellate Division and a determination made by the Appellate Division? Atty. Galbraith replied that he thought one of the��arguments at the Appellate Division,,and certainly before the Supreme -Court.here, .was that there weren't any findings of fact by: this Board, which the - Appellate Division seemed to agree with. Town Attorney Barney said that the -Appellate Division, .in spite of the lack of findings, as a result of the argument and the way it was presented to them,, whether by. concession (in which event you don't need any findings of fact). or otherwise, made this determination. Attorney :Barney further stated that Atty. Galbraith has made an interesting point and he is not foreclosing the Board on this to make any'.decision they choose to, but he was a little bit startled that this is an issue now in view of the decision and statements in'the Appellate Division opinion. Atty. Galbraith responded that he would be rather surprised ifthis Board decided the matter on what was said. in the Appellate Division decision based on no particular proof as opposed to the proof that is being offered on the issue this evening. Chairman Aron stated that the. Board has before them an environmental assessment form (Exhibit #12) and a number of letters, that he would like to. -read into the record before he opens the public hearing. The letters are.attached as follows: Exhibit #13 - West Hill Neighborhood Association, dated -May 18,1989, signed by Eugene Ball, President. Exhibit #14 - Rosemary Pellegrino, dated June 5, 1989. Exhibit #15 - Tim Dietrich, dated May 23, 1989. Exhibit 416 - Mrs. Frederick W. Swartwood, dated May 23, 1989. Exhibit #17 - Mr. & Mrs. William Hildreth, dated May 23, 1989. Exhibit #18 - Jeff Gombas, no date, received May 24, 1989. Exhibit #19 - Alice L. Pitino, dated May 22, 1989. Exhibit #20 - Dennis Conrad, dated May 22, 1989 Exhibit #21 - Mary and Ronald A. Poyer, dated May 22, 1989. Exhibit #22 - Guy Burrell, dated May 22, 1989. Exhibit #23 - Mitch Bobrow, dated May 22, 1989. Exhibit #24 - Lanny & Phyllis Joyce, dated May 23, 1989. Town of Ithaca Zoning Board of Appeals June 7, 1989 Exhibit #25 - Mary W. Minnich, dated June.l, 1989. Exhibit 426 - James R. Bryant, Jr., dated May 23, 1989. Exhibit #27 - Mr. & Mrs. Peter J. Ciferri Jr., dated Exhibit Exhibit -Exhibit 23, 1989. #28 - Frances V. Wilson, .dated May #29 - Marilyn C. Reitenbach, dated #30 -- Etienne Merle, dated May 251 Chairman Aron opened the public -hearing. Mr. Gerald D. Hall, 296 Hayts Road, stated that the stand as he knows it was probably about 5 years by Jack.. Spaeth, Frear..' s. employees and the rest of the storage mostly.- Mr. Maddox used it for time. 24, 1989. May 23, 1989s 1989. 25 May addressed the Board and used as a residence for who was one of..Raymond time it was used for a hot dog stand at one Town Attorney Barney asked Mr. Hall if he could identify what years he is speaking'of. Mr. Hail said that he believes in his recollection,` that it was.,about 1964 to 1969 -that it'was used for an apartment. Jack had a dug well outside .of the stand that he used for his water supply, and he had an..outhouse. He had an oil heater for heat in the winter time. Mr. King asked if Mr. Hall knew if produce was sold from any other building on this farm. Mr. Hall replied that produce was sold in a sales room up at the main barn for probably about 40 years. Mr. King asked if that was the one that burned down. Mr. Hall responded yes. Mr. King asked Mr..Hall about when this.road side stand was used for the sale of things such as hot dogs. Mr. Hall responded that that was just an intermittent use. Mr. Maddox, north just across the Indian Creek ditch, was the proprietor of.the stand. That was just for the duration of a couple of years, he believes. Mr. King asked Mr. Hall if, to his knowledge, Mr. Brown is the only one who ever used that stand for the sale of farm produce of any kind. Mr. Hall said that he believes so. Mr. King further asked Mr. Hall if that was after the barn burned. Mr. Hall said no, it was before and after. Ms. Beeners asked, in regard. to the sales. room in the barn that was in operation, was the 'property. immediately behind the sta.:id farmed during the time. Mr. Hall replied that it was mostly- orchard. Ms. Beeners- asked if between the .existing orchard and the present stand location, was that area used for farming or for utility purposes related to farming. Mr. Hall replied that he guessed. they used it for melons a few different Town of Ithaca Zoning Board of Appeals June 7, 1989 Kno years. He said that he was "directly connected to that'. he was usually employed at harvest time to pick peaches, apples, grapes. Town Attorney Barney asked Mr. Hall if he understands him correctly that sales have occurred either out of the barn or out of the stand for approximately, without interruption, the last 40 years. Mr. Hall responded that the sales room was the mainstay so far as the sale of fruit and vegetables. Town At Barney asked if that was in the* barn. Mr. Hall replied yes. Town Attorney Barney asked Mr. Hall if as far back as he can recall for approximately the last 40 years, the sale of agricultural products have occurred off that property, either from the sales room or from the road side stand. Mr. Hall°. - replied yes. Athena Grover, 1486 Trumansburg Road, addressed the Board and said that they have lived there since December 1965. She . stated that as much as she has known about the Indian Creek Fruit Farm is even from her childhood. They used to go up there and pick fruit and the only time-that.it was open was when that fruit was for sale; it was not a continuing operation. To her knowledge, she never knew that gthey sold anything else but what they grew there. Right now the. -neighbors are worried about the traffic. It is terrible. ..She_ described to the Board the conditions of the traffic in that area. Susan Suwinski, 451 Sheffield Road, spoke to the Board saying that she is not here to speak in favor or against. this because she lives over tw& miles away from this particular farm. She did want to state that she is in favor of agriculture on West Hill in that she has a small farm herself, although not a working farm. However, she would prefer to see agriculture on West Hill as opposed to development. She stated that she alsouses the fruit stand and has used it for many years and likes the.produce and flowers and so forth that she gets,there. Her concern at the moment is the traffic situation. She said she had4an accident in the area -of the fruit stand. She further said that with the increased traffic on Route 96 over the past 5 years the location is potentially a very dangerous situation. If some kind of speed reduction could be made or the fruit stand itself could be moved over onto Hayts Road or something like -that, she thinks it would alleviate this problem and both.sides would be happy. They could have their farm; the residents could have more agriculture on West Hill and be safe f=rom'the traffic hazard that is present on 96 at this time." Doria Higgins, Hillcrest Drive, read a statement to the Board which is attached as Exhibit #31: Marilyn Reitenbach, 61 North Applegate Road, addressed the Board. She stated that she was only born in 1962 so she does not Town of Ithaca Zoning Board of Appeals June 7, 1989 27 know all these historical facts but it seems sort of like it gets down to one issue to her: are the Browns going to be able to continue their operation or not?, and she wanted to say that she is in support of them continuing. It seems that every time one issue is resolved, another one is brought up and it sounds like nit-picking to her. Celia Bowers, 1406 Trumansburg Road, presented a petition with 38 signatures of residents of the Truinansburg Road area, attached as Exhibit #32, and stated that she shares a driveway with the Browns ; one of her. driveways, She read .a statement to the Board which is attached as Exhibit #33. Chairman Aron called -for a recess at .11:05 p.m. and reconvened the meeting at 11:10 p.m. Chairman Aron stated that it was 11:10 p.m. and there are still some people who would. like to be heard, thus he would recommend to the Board that due to the late hour, and in view that there is much *to be discussed yet and much to be digested yet by this Board and by the public present also, that the Brown matter be adjourned until June 28, 1989 at•7:00 p.m. and he asked. if anyone wished to make. a motion_ to that effect., Mr. Austen made the following motion. RESOLVED, that the matter of the Brown Appeals be and hereby are adjourned until June 28, 1989 at 7:00 p.m. Mr. King seconded the motion. A.vote on the motion resulted as follows. Ayes - Aron, Reuning, Hoffmann,King, Austen. Nays - None. The motion was unanimously carried. The meeting was adjourned at 11:15 p.m. Exhibits 1 - 33 a APPROVED. I Henry Aron, Chairman Respectfully Submitted,, Connie Jolcomb Recording Secretary