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HomeMy WebLinkAboutZBA Minutes 2021-05-11Town of Ithaca Zoning Board of Appeals Tuesday, May 11, 2021@ 6:00pm 215 N. Tioga St.     Due to public health and safety concerns relating to COVID-19, the Zoning Board of Appeals will not be meeting in-person. In accordance with the Governor’s Executive Order 202.1, this meeting will be held by video conferencing through the Zoom app. The public will have an opportunity to see and hear the meeting live and provide comments.   Agenda  0005-2021 Appeal of Marla Miller, 180 Calkins Road, Tax Parcel No. 33.-2-3.1  0004-2021 Appeal of Ron Knewstub, owner of 180 Calkins Road, Tax Parcel No. 33.-2-3.1  Zoning Board of Appeals’ consideration of the Town of Ithaca’s Planning Board as the lead agency for the Full Environmental Assessment Form (FEAF) for Cornell University’s Multidisciplinary Building on Tax Parcel No. 67.-1-13.2 INSTRUCTIONS TO ACCESS THE VIRTUAL MEETING: If you have a computer, tablet, or smartphone, you can access the Zoom meeting by going to www.zoom.us and clicking on “JOIN Meeting”, and entering 944-393-1973 into the Meeting ID. You can also call in to the Zoom meeting at +1 (929) 436-2866. To join the meeting directly, go to https://zoom.us/j/9443931973. On the evening of, 05/11/2021, at 5 minutes before 6:00pm, join in with your computer, smartphone, or telephone. You will be placed on hold until the meeting starts. Questions about accessing the Zoom vide conference should be emailed to ctorres@town.ithaca.ny.us or (607) 273-1783 ext.2. ZBA 2021-05-11 (Filed 6/18) Pg. 1 Town of Ithaca Zoning Board of Appeals May 11, 2021@ 6:00pm Due to the Governor’s Executive Order(s) suspending certain aspects of Open Meeting Law in response to COVID 19 and encouraging certain health and safety measures, the meeting was held via video conferencing (Zoom app.) Minutes Present: Rob Rosen, Chair; Members Bill King, Chris Jung, George Vignaux; Alternates David Williams and David Filiberto Absent: David Squires Marty Moseley, Director of Code Enforcement; Susan Brock, Attorney for the Town and Paulette Rosa, Town Clerk Mr. Rosen called the meeting to order at 6:03 p.m. 0005-2021 Appeal of Marla Miller, seeking a determination regarding activities and a building located at 180 Calkins Rd, TP 33.-2-3.1. The Applicant is seeking an interpretation and determination by the Zoning Board of Appeals regarding the Director of Code Enforcement’s determination that a 1,728 square foot building on the property is classified as a garage use, as defined by Section 270-5 of the Town of Ithaca Code. Applicant is seeking a determination from the ZBA that the building is not a garage as defined by the Town Code. Mr. Rosen noted that this is a continuation of the appeal and new information has been received by both the applicant and the property owner. He added that the Board has received over 300 pages of information from the applicant. Mr. Rosen opened the public hearing, saying that he didn’t feel the need to hear from the applicant at this time and he thought the Knewstubs had submitted enough information, but, Mr. Knewstub wanted to read a statement and Mr. Rosen allowed this as a member of the public since he is not the applicant. Mr. Knewstub read a prepared statement. (Pasted below) Opening Statement about Garage I would like to quickly sum up my position with regard to the appeal of the classification of my garage. My sons and I have already submitted a thorough statement demonstrating how this building has been used and classified as a garage from 2008 when it was built, through to the present. Here is a brief history of this classification: In October, 2007 Code Enforcement Officer Steve Williams issued a Certificate of Occupancy for the “construction of a 1,728 square foot accessory building in the rear yard.” Under the Use/Occupancy Classification it reads, “Single Family Residence Garage.” In April, 2008 Steve Williams wrote on a complaint investigation sheet, “Use of temporary wiring (extension cords) instead of permanent wiring in garage. Advised to install permanent wiring and obtain [building permit] for work. Checked garage, no fabrication work ZBA 2021-05-11 (Filed 6/18) Pg. 2 underway.” A few days later, Bruce Bates issued a permit to “install electrical service in detached garage.” In July, 2008 Planner Christine Balestra sent a Planning Department memo which stated that after being denied a variance for a pole barn/accessory building, “[Ron Knewstub] subsequently applied for and received a Building Permit and Certificate of Occupancy for construction of a 15-foot high, 1728 square foot accessory building/garage, located in the rear yard of his property.” In January, 2009 the Director of Code Enforcement Bruce Bates wrote an official determination regarding the home occupation. In his determination he refers to the building as a garage 4 times and never as simply an accessory building. He even described the process of me maneuvering my vehicles to back them into the garage. In September, 2011 Bates again refers to it as a garage on a complaint form. He writes, referring to my wife, “She allowed me to look in the garage and there was no evidence of anything different than the last time I looked in there.” In August, 2014 Steve Williams issued a Certificate of Occupancy to install a woodstove in the accessory structure. Ms. Miller and Mr. Guttman have claimed that based solely on the use of the words accessory structure that “Williams was clearly stating at that time that he was considering this building to be an accessory structure.” The significance of this would be that by changing the past classification of the building as a garage to now simply as an accessory structure, Ms. Miller and Mr. Guttman would have grounds to appeal Marty Moseley’s description of the building as a garage. However, as discussed in our statement and pointed out by Susan Brock’s annotations, a garage is a subcategory of accessory building in town code. There are several instances throughout the history of this building where the Code Department refer to the building using both the terms “garage” and “accessory building.” As I said before, Steve Williams issued the 2007 Certificate of Occupancy for the construction of an accessory building, further classifying it lower on the page as a single family residence garage. Since a garage is an accessory building, this comes as no surprise and would not cause one to believe that he is contradicting himself on this document. To further illustrate this point, here is an excerpt from an email sent by Steve Williams on the same day he issued the Certificate of Occupancy in 2014: “During the investigation I also inspected the interior of the garage because there is an open building permit #9875 to install a woodstove in the garage. Photos of the garage interior and woodstove are attached to this email. Building permit 9875 is being closed following this inspection and a certificate of compliance is being issued. Based on my evaluation of the garage interior it does not appear that the garage is being used for commercial operations. There were only personal items observed in the garage.” As Susan Brock pointed out, Steve Williams refers to the building as a garage 7 times in his email and does not mention an accessory building or structure. At no point did Mr. Williams suggest that the garage’s usage had changed, nor did he express any explanation or intention to change the building’s classification. Does this sound like he was trying to deliberately classify the building as an accessory building excluding a garage? Looking through the town’s documented history, my garage has been consistently referred to as such by the Code Enforcement Department and other Town employees. This is consistent with how I’ve used the building for over a decade. ZBA 2021-05-11 (Filed 6/18) Pg. 3 Mr. Knewstub thanked the Board for allowing him to read the statement. Statement complete Mr. Rosen asked if there was anyone else wishing to address the Board. He added that he did not feel that Ms. Miller’s attorney Mr. Gutman, was part of the public, but turned to Ms. Brock for her opinion. Mr. Gutman stated that he wanted to respond to Mr. Knewstubs submitted documents since the last meeting that they have not had an opportunity to comment on. Mr. Rosen stated that he did send a letter in to the Town which the Board received. Mr. Gutman clarified that that was a letter on legal issues he had asked the Board’s permission to send to Ms. Brock but this is about new material and statements by Mr. Knewstub that we would like to respond to. There was some discussion and consultation with Ms. Brock to determine if they should speak during the public hearing or afterwards. Ms. Brock stated that either way was appropriate and it was fair to let them speak to information sent after the last meeting and the Board will have to let the Knewstubs respond if wanted. Mr. Gutman stated that Mr. Knewstub submitted a survey that was completed in April of this year and in looking at the survey, it appears that a portion of the pole barn or garage, let’s say that building, it appears that part of it is behind the residence and part is in the side yard. He stated that his position is that is impermissible because this building is not allowed in the side yard . He went on to say that he couldn’t tell due to his eyesight, but it was clear that was along side the deck, which is an integral part of the residence, and he would argue that is the side yard and not allowed. Mr. Gutman stated that secondly, summarizing what Ms. Brock way saying in her memo to the Board, is that the Board needs to make a determination of what it was classified as in 2014; if it was classified as a garage in 2014, then it is not a new decision in 2021 and then the Board would look at whether the usage had changed from 2014 to present. He said he would focus on what Mr. Knewstub submitted, page 8, and quoted “when the garage/pole barn was first constructed, it was used to both as a garage and for storage of tools and materials.” And then he says “in 2009 nearly all Knewstub Marina related equipment and tools were removed to another address, and since then, it was used primarily to house a number of different vehicles.” Mr. Gutman stated that if it is used primarily to house vehicles, I would agree, that is the definition of a garage, but continuing, he said “The storage has included both the current pickup trucks and the bobcat skid steer.” He said he does not think that is equivalent to a vehicle, but Mr. Knewstub goes on to say that it is used for “a Mazda, a VW, a Ford Escape and a Subaru” all of which are vehicles. ZBA 2021-05-11 (Filed 6/18) Pg. 4 Mr. Gutman noted that Mr. Moseley visited the site and took pictures and there are no vehicles like that stored there and there is no room to store such vehicles, instead, it is for two pickup trucks which we do not know whether they are being used commercially or residentially and a skidsteer which is not a residential vehicle and the rest of it is full of wood working tools. Mr. Gutman said Mr. Knewstub has made the argument that you have to look at the area for loading and unloading for vehicles and that is the same for the wood making tools. Quoting Mr. Knewstub, “approximately a quarter of the room is used for storage of woodworking materials and machinery.” and if a quarter is used for the skidsteer and a quarter is used for the woodworking materials, then it is not primarily currently being used as a garage, which, according to him, changed from what it historically has been, which was storing four different residential vehicles. Mr. Gutman stated that was all he had to say. Mr. Rosen asked if there was anyone else wishing to speak and Ms. Rosa noted that she had not received any indication that there was anyone nor had she received any phone calls or emails to this point. Mr. Rosen closed the public hearing at 6:18 p.m. Mr. Rosen turned to SEQR and Ms. Brock noted that the Knewstubs were indicating that they would like to speak. Mr. Rosen responded that we have 313 pages of information so unless there is some fundamental misunderstanding or new information, he would like to just discuss with the board and have the board ask questions if there is any ambiguity, unless it was something urgent. Mr. Knewstub responded that Ms. Brock had stated that we could respond if Mr. Gutman spoke and Mr. Rosen responded yes, so please, go ahead. Mr. Knewstub said there is no doubt in his mind that the garage is in the back yard and I didn’t have all the cars at the same time. It is a garage and always has been. I have my woodworking tools in there that I bought in bulk because I prefer to make presents for people rather than buy something and it has nothing to do with my business. Mr. Moseley saw the tools and some have never been opened. The survey clearly shows it in my backyard. Mr. Rosen turned to the Board and said we can ask the applicant questions if we would like. Mr. Rosen stated that we have to decide whether this building was somehow reclassified by virtue of the use of the word accessory building on the certificate of compliance in 2014 or it was reclassified because at one point there were four cars parked in there and now there are not four cars parked in there and that somehow reclassified it and if it is a garage, then is there grounds now to reclassify it. The other question of whether it is in the back yard or not seems obvious to me that it is in the backyard. The deck is not part of the house and the deck is actually in the back yard and it is obvious the garage is in the backyard. ZBA 2021-05-11 (Filed 6/18) Pg. 5 The other question about 4 cars and now not 4 cars is the last questions. Mr. Rosen stated that the current definition of a garage is a building that is intended primarily for parking vehicles and any building with an overhead door is strong evidence of that in my mind. As Mr. Vignaux stated at the last meeting, just because he parks his boat in his garage doesn’t mean it is not a garage, so there is that, and I would like to hear thoughts on this. Mr. Vignaux spoke, saying on the question of 4 vehicles being in the garage at the same time, I have been in my house for years and I have probably had 15 – 20 vehicles in my garage from time to time as I exchange vehicles or as people visit and I do not think those four vehicles he mentioned were ever in the garage at the same time as implied, but over the years. When he listed the vehicles that had been in the garage, he did not say they were in there all at one time and my assumption was it was over a span. Mr. Rosen asked Mr. Knewstub to clarify if they were all at one time or sequentially. Mr. Knewstub responded that they were over the course of his life; not all four at one time. Sometimes there were two, and if I feel like a vehicle needs to be in there, it goes in there. Some discussion followed and Mr. Knewstub said the maximum he has had in there was probably four at a time, two trucks, the skidsteer and the Subaru. It is not a norm where there are four in there, but the cars that we had at any time may have been stored in there. Mr. Vignaux said he has two cars in his garage and one is classified as a truck because it is a Ford F150 and the other is classified as a passenger vehicle, the Audi and there is a riding lawnmower in there. they are both vehicles. He added that he has two garages and I have had lawn mowers and my Volkswagon back there. Mr. Vignaux said what you put in your garage even though it is built for cars doesn’t alter the garage from being a garage. He said he bought a house on Long Island from a piano tuner and a baby grand was in the garage, he moved out, we parked our cars in there, it didn’t suddenly turn into a garage when the piano came out and the cars went in. Mr. Vignaux said he is having difficulty in understanding the problem with seeing a garage as a garage whether or not a vehicle is in there. If I take both of my cars, my car and my truck, out of my garage, does it cease to be a garage? If I put my boat in there, does it become a boathouse? No, it is a garage. It seems abundantly clear that what is there was built and can continue to be a garage and he didn’t see why we were getting crazy about this. Mr. Rosen thanked him and asked other members. Mr. King said he was interested in hearing from Ms. Brock about the 2014 classification and how we are supposed to move forward from that? ZBA 2021-05-11 (Filed 6/18) Pg. 6 Mr. Rosen responded that a garage is an “accessory building” and on the 2014 paperwork it is referred to as both and been called a garage in every other written reference. It is a term that encompasses a garage. He said his thing is that it doesn’t change anything and Ms. Brock addressed that in her memo. Mr. King asked if the 2014 document defines it as an accessory building or as a garage, first question. Mr. Vignaux said he had to jump in and said he married an English teacher and she taught me that logically all garages are accessory buildings, all accessory buildings are not necessarily a garage, but a garage is always an accessory building. Mr. King said he understands that the town’s definition of a garage but how was it listed on the permit? Mr. Rosen said it is referred to as an accessory building and all the emails and inspections refer to it as a garage. If this somehow made the building not a garage, then the applicant is within the 60 day period to challenge Mr. Moseley’s determination. If it was still a garage all along, then we have to look at the conditions present and whether it is not a garage given the tools there. So there are two ways we have to come at this and Ms. Brock can’t say what it is, that is our determination. The Applicant is appealing the situation and Mr. Moseley’s interpretation to us and we have to decide whether it has stayed a garage in 2014, from the time it was built in 2007 as a garage, there is no question about it being a garage in 2007. The word accessory building came in at the installation of the wood stove in 2014. If it was still a garage all along then does the use and tools now make it something other than a garage now. We have to decide if it stayed a garage throughout. In 2021 it was counted as a garage and the question is whether using the term “accessory building” in 2014 made it something other than a garage. Mr. King said if it was classified as an accessory building on a certificate of completion in 2014 and that doesn’t define it then how can any previous certificate defining it as a garage define it more than that? Mr. Rosen stated that the original certificate for the building says “residential garage.” Mr. King said right, but now you are saying maybe it doesn’t mean it is a garage? Ms. Brock responded that she does not make the determination, the question is, when it used the words “accessory building” does that mean an accessory building that is not a garage, because our Code has certain requirements that apply only to accessory buildings that are not garages. It ZBA 2021-05-11 (Filed 6/18) Pg. 7 has other provisions that apply to accessory buildings, including garages, and so the question is, when they use the words “accessory building” on the 2014 certificate, did that reclassify it from a garage to an accessory building that is not a garage. Mr. Rosen asked Mr. King to sum up his thoughts. Mr. King said he was just trying to decide what is relevant and what is not because there are many statements that have been made that are not relevant. You can call it a garage and that is fine, but that doesn’t mean the town defines it as a garage. That is the issue that I am trying to clear up. Mr. Vignaux said it has always been an accessory building from the time it was built until today, there is no question about the fact that it has been an accessory building from the time it was built. Does it switch back and forth from being a garage to a nongarage? I don’t think so. If I take my car and truck out of my garage and stick two pianos in it, it doesn’t become a piano storage warehouse, it is in fact storing pianos, but it is still a garage. Mr. Rosen responded he is seeing it the same way. The Code says a “a building designed for the purpose of storing automobiles and similar vehicles” and the overhead door and the ability to drive a vehicle in, to me, is a defining characteristic and shows that it was designed and intended for automobile storage and you can do other things with it, but you can’t store a vehicle in a garden shed or something like that because it just isn’t designed for it. That is the current definition in the Code and what they designed and intended the building to be. How many square feet are used for your bicycles or table saws or whatever versus how many square feet are used for you car. That is a factor to be considered but…. Ms. Jung spoke, saying it is clear this is a case of which it’s like trying to define the most simple things. We are talking about if you can put a car in it, it’s a garage, but I am from Iowa and a lot of people store their cars in their barns. I am trying to work this through. If someone stores a car in a barn, it is still a barn… Is the usage the definition, or the potential usage? …. Trying to work through these finer definitions. Mr. Rosen said yes, if you have a barn and you park cars, it is still a barn, it is like the opposite of this scenario. Mr. Filiberto said he commented last time that it is a garage and he is not convinced it is not a garage and I am still convinced it is a garage. Mr. Williams said he wasn’t really expecting to discuss the epistemological boundaries of what a garage is tonight, but I still believe it is a garage. Mr. Rosen said, polling the Board, it seems we have five think it is a garage with two not committed. He said we should try to address the concerns and see if we can figure this out. ZBA 2021-05-11 (Filed 6/18) Pg. 8 Ms. Jung said her uncle had a workshop where he did fabrication and yes, he had two bays to bring in vehicles, but you wouldn’t call that his garage. Isn’t it a percentage to consider? If you store a vehicle in the corner of a building, does that make it a garage? Mr. Rosen said the town Code defines a garage as a building designed to be used primarily for the storage of motor vehicles or similar vehicles. If you park your boat in there, it doesn’t change it to a boathouse. Mr. King said he is coming down on the side of accessory building because whether it has garage doors or not is not relevant; if it is being used to store one or two or three motor vehicles that take up a small percentage of space and the rest of it is tools and storage and stuff like that, then to me it is an accessory building. The definition of a garage say primarily for vehicle storage and subordinate to the main residence. That is where I am falling down now. Mr. Rosen said we should all consider that. Looking at the survey, it is subordinate, but if you are going by square footage what is in there, then it isn’t a garage, but the definition is “designed” as a garage and the fact that someone is using it for something else doesn’t change it. Mr. Rosen said he could see if it had originally been built as an accessory building and not as a garage, but he didn’t see the argument for reclassifying it because someone has a table saw and wood in there that takes up more footprint than a car. If you go by that, we would be reclassifying every single “so called” garage all over town, it just doesn’t make sense to me. Ms. Jung said since garages are not counted as an accessory building, then by putting garage doors on an accessory building…. Mr. Rosen and Mr. Vignaux said a garage is an accessory building…. Ms. Jung went on saying, but if you call it a garage, doesn’t that get you around the problem of having only so many accessory buildings and so much square footage? Mr. Williams said, I think you have to think about applying a reasonable standard to that though because if we are going to play devils advocate, and you put barn doors on your garage, would it still be a garage? Yes. It goes back to the original design intent. Mr. Rosen agreed that it goes back to the original intent and the idea that every building that has bicycles and garbage cans in it isn’t a garage just doesn’t make sense. Ms. Jung said she isn’t talking about that but about people with large buildings or people who wanted very large accessory buildings could design to the extreme and put garage doors on it as a way to get around our limits. Mr. Rosen said yes, you can classify a building as a residential garage you can get an extra accessory building, the way the Town Code is written and that is the case here. There are going to be 3 other accessory buildings and there are many out there. ZBA 2021-05-11 (Filed 6/18) Pg. 9 Ms. Brock added that it is not an unlimited area anymore. It was before, but the Code has changed and now there is a limit. Mr. King said that garages are a subset of accessory buildings and he thought the town board has given special leeway to them because they are intended primarily for the storage of motor vehicles and you are allowed to go in the front yard and have different setbacks because they are primarily for vehicles, and they are allowed to go in the front yard and they are allowed different setbacks because they are primarily for automobiles and of course they are limited, now, to 600 square feet. This building, to me, doesn’t meet the intent of that. Mr. Rosen responded that the question is was it reclassified because we all agree that somebody who has a garage and has a boat in in it’s not a boat house, it is still a garage, and the table saw in your garage and a pile of lumber doesn’t make it not a garage; so is your position that it was reclassified as not a garage in 2014? Mr. King responded that yes, I think that. It should have been considered an accessory building all along and that is what I believe it was initially but, I do agree that it is unclear how it was. Mr. Rosen stated that he could correct that in that it was not initially considered an accessory building. Mr. Knewstub approached the town to build an accessory building for a home business, that was turned down and he came back with a different design for a small building that could be used as a residential garage and that permit was granted and issued as a garage in 2007. Mr. King responded that it is never going to be and the use of the space has always been where vehicles have been in a smaller part of it and the rest has been used for other things. Ms. Brock state that you can’t reopen that; it is too late to challenge that certificate of occupancy. The Certificate of Occupancy for the electrical work called it a garage so the question for the Board now is in 2014, the Certificate of Compliance that calls an accessory building was that a reclassification from a garage to an accessory building other than a garage. That is the question for this ZBA tonight. If it was, or if it wasn’t, then there are different next steps, but first is that decision; in 2014 when they put the wood stove in, when it was called an accessory building, was that a reclassification to an accessory building other than a garage and what information do you have in the record to support whichever decision you make. Mr. Rosen thanked Ms. Brock for the clarification and said let’s keep on track and decide that question first. Mr. Rosen said at worst, calling it an accessory building was a clerical error or a matter of semantics and at best it meant literally nothing because everywhere else it is and was referred to as a garage. At best it was a clerical error, and it did not reclassify the building, that is my position. ZBA 2021-05-11 (Filed 6/18) Pg. 10 Ms. Brock responded that it is not helpful to say that there was a clerical error, and members should just state whether they believe, based on the information and the record, whether it was being classified as an accessory building other than a garage. Mr. Rosen responded that the question is that somebody did put accessory building on the certificate of compliance and did that make the building not a garage and in my opinion, it did not. It was just a working thing that logically includes being a garage and that if they were going to change the classification, they would have explicitly said not a residential garage use. Mr. Rosen polled the Board. Mr. Vignaux – I agree with you, it was a garage classified as a garage and referred to as an accessory building which garage is a subcategory of, so, in fact, it is an accessory building, subcategory garage. They could have been clearer and written that it was an accessory building slash garage, but it stays a garage. It doesn’t alter the fact that it was a garage when he referred to it as an accessory building, it has always been an accessory building. Mr. Williams – Contemporaneous to the certificate of compliance was there any other indication that there was an intent to reclassify it more generally, as a group, as an accessory building? Mr. Rosen responded that he has gone through the packet a few times and say no communication about reclassifying the building as anything other than a residential garage and to the contrary, they consistently use the word garage to refer to it many times. Ms. Brock stated that she also has been through the packet and there is no explicit discussion about reclassifying using those words or any others to that effect. Mr. Rosen agreed, saying there wasn’t even anything saying this is not a garage. Mr. Williams said that he doesn’t see how you can say that it is no longer a garage simply on the use of a more general term that encompasses the specific term. Mr. Vignaux stated he moves the question. Mr. Rosen responded that he would like to hear from the rest of the Board but asked Ms. Rosa which alternate would be voting. Ms. Rosa stated that she needed a minute to check past meetings. Mr. King asked if the vote is on whether the 2014 certificate changed the classification, even though I believe that it always should have been an accessory building and not a garage, and that this didn’t change the classification then, then I should vote yes, correct? Mr. Rosen responded yes, you understand that correctly and asked Ms. Brock what criteria is applied. ZBA 2021-05-11 (Filed 6/18) Pg. 11 Ms. Brock responded that there is not criteria, this is an interpretation, not a variance request, you would just make a motion and then support it with some findings. ZBA Resolution 005-2021 Interpretation A – Garage Classification of 2014 180 Calkins Rd, TP 33.-2-3.1 Resolved that this Board makes the determination that building was not reclassified in 2014 and remained a residential garage as defined by the Town Code, with the following Findings 1. That the building was referred to as a garage, an accessory building or a pole barn, but the communication from the Code Officer composing the Certificate of Compliance referred to the building seven times as a garage and did not refer to it as any other type of accessory building or structure, and 2. That the word “accessory building” on the Certificate of Compliance encompasses “garages” and that there was no discussion at the time regarding reclassifying the building, and 3. That the common practice of storing things other than an automobile in a garage does not necessarily change the building into something other than a garage, and Moved: Rob Rosen Seconded: Geroge Vignaux Vote: ayes – Rosen, Williams, Jung, Vignaux and King The Board discussed the second part of the interpretation, which is whether there have been any uses or causes to reclassify the building since the 2014 determination. Mr. King stated that he doesn’t believe it should have been a garage from the onset, and he is not sure there have not been uses that are not a residential garage. Mr. Williams stated that we have just determined that up to 2014 it was a legal residential garage. Mr. Rosen asked Mr. King what he thought had changed from the records submitted. Mr. King responded that he can only reply to what appears to be the case right now and it does not appear to be a residential garage. Ms. Jung stated that she is in Mr. King’s camp, in that if we ignore the question of whether or not it should have initially been classified as a residential garage, and although I think the percentage of the building that is and has been used as a garage is not substantial, working in the framework of the Town Code, I will have to say that nothing has changed in the use or the classification since 2014 to present. ZBA 2021-05-11 (Filed 6/18) Pg. 12 Some discussion followed on the percentage of garage space different members used for their cars and other purposes, but ZBA Resolution 005-2021 Interpretation B – Garage Classification Post 2014 & Support of Director of Code’s Determination as a Residential Garage 180 Calkins Rd, TP 33.-2-3.1 Resolved that this Board makes the determination that nothing has changed since 2014 that would warrant a reclassification of this building as something other than a residential garage and this board finds that it is still a residential garage and upholds the Director of Code Enforcement’s determination that the classification is a residential garage, with the following findings Moved: Rob Rosen Seconded: David Williams Vote: ayes – Rosen, Williams, Jung, and Vignaux nays - King Mr. Rosen called for a brief recess. Reconvened after 10 minute break. All present. 004-2021 Appeal of Ron Knewstub, owner, 180 Calkins Rd, TP 33.-2-3.1, seeking relief from Town of Ithaca Code section 270-59 (Height Limitations) for a proposed 22’ x 22’ foot (484 sqft) accessory building approximately 23’ ft in height. Mr. Rosen stated that he felt the board had heard a lot about this building already, and asked Mr. Knewstub for a simple, 2-minute summary of anything not already heard. Mr. Knewstub stated that he was looking for a variance for the roof height from 20’ feet, the outside dimensions are 22’X22’ and the primary use if for a music studio. He said the main reason he is requesting the height difference is that the building is in the middle of a clearing in the woods and surrounded by very tall trees and those will remain, but trees drop leaves, branches, seeds etc. and a steeper roof will promote the slide of all that debris off the roof. It is also more aesthetically pleasing and easier to maintain. He also thought it would improve the sound quality inside the structure. Mr. Knewstub stated that the building is in the woods and not very visible at this time of year, and even in the winter months, you have to look for it to see it. Mr. Knewstub stated that you can see the beginning of the structure; the footers and the platform. Mr. Rosen asked if it was possible to build it only 15’ feet high with a flat roof. Mr. Knewstub responded that it was. ZBA 2021-05-11 (Filed 6/18) Pg. 13 Mr. King asked if construction had started, and Mr. Knewstub responded that it had. Mr. Rosen clarified for the Board that this is a little unusual in that the construction started prior to the request for a variance because the Code’s Department issued the permit in error, before the need for a variance was discovered and Mr. Knewstub immediately stopped construction to begin this process. Mr. King stated that it wouldn’t be hard to lower the wall heights then to stay within the Code. Mr. Knewstub responded that the size requested just fits the feel and use of the building and acoustics. Mr. Rosen asked if it was possible to lower the pilings and Mr. Knewstub responded that it really wasn’t because the foundation is already set. Ms. Brock asked if Mr. Knewstub had posted the notice of the ZBA appearance as required and he stated that he had, on the day the Town gave it to him. Mr. Rosen opened the public hearing at 7:31 p.m. Mr. Gutman addressed the board saying that he wanted to make a few points. The first is to the section of the Code that talks about the total square footage of accessory buildings not more than 2,000’ sqft and now the building you just classified as a garage is about 1,800’ sqft and now he should not be allowed more than 600’ sqft. Before that came into effect, it was permissible, but if you take that and the greenhouse he is already over the maximum before even considering the area of this building. Mr. Rosen asked Mr. Moseley to verify that a residential garage is not considered in the aggregate calculation for accessory buildings, with a maximum of three. Mr. Mosely responded that the maximum of 2,000’sqft excludes garages or accessory dwelling units. Mr. Gutman responded that he would argue that the only reason the garage is exempt is because it is grandfathered in and when you change the nature of the property by putting another accessory building that grandfathering becomes relevant. You end up with much more than the maximum allowed and the garage is 1,200’ sqft larger than would be allowed under current standards, and by doing so, you change the nature of the property by putting in that extra building and footage. Mr. Rosen responded that a lot of garages were built larger at the time for the owner’s wishes and it doesn’t count against the aggregate and under current Code a larger garage would be allowed or a variance granted if weighed by the criteria. ZBA 2021-05-11 (Filed 6/18) Pg. 14 Mr. Gutman stated that he respectfully disagrees and went on to say that one of the criteria is detriment to the nearby community and nearby properties and this new building is going to be almost 68’ feet within the 205 of his property that is closest to Mr. Miller’s property and in Ms. Miller’s opinion will affect the use of her property, she will be able to see it, and it is near her pond. The second point is “reasonable alternatives” and it is feasible to have a lower height or pitch so by saying “I prefer it this height” doesn’t mean there isn’t a feasible alternative. The fact that he already built the foundation doesn’t really give him a benefit, although I understand he was relying on what the town had told him and issued a permit for. The alternative would be changing the foundation, building closer to the ground or lowering the walls or lowering the pitch. He has admitted those are feasible. He said he would prefer to lower the pitch. The law is clear that a town error is not the Town’s problem. Another criterion is “is the request substantial” and 23’ feet is more than 50% greater than the 50’ feet so he wants to be 150% higher. He wants to be 8’ feet higher. The third criterion is “self-created” and Mr. Knewstub states in his submission that it is. This is completely self-created in that the building was not there when he bought the property and there is no obligation to build it. He designed the building to be in violation of the zoning ordinance so it is 100% self-created. For all the above, the variance should not be granted. Ms. Rosa verified there was no one else wishing to address the board and Mr. Rosen closed the public hearing at 7:42 p.m. Mr. Rosen stated that no SEQR is required as this is Type 2, a residential accessory building for a single family. Mr. Rosen addressed the point raised by the applicant’s attorney regarding the site of the building; the survey shows and old farm and buildings and the proposed site looks to be where there is a well worn path, if you will, that enable travel to the site and many other sites would require crossing a creek which would require building a bridge. You could build it at the junction of the two creeks but you would still have to build a bridge, so I believe the proposed site is logical. The site is pretty far from the lot line, seems about 67’ feet, and that is not unusual, and whether this board thinks that the roof design is justifiable, that is what we have to look at and what we have done in similar cases. ZBA 2021-05-11 (Filed 6/18) Pg. 15 Ms. Brock responded that the board should not consider past cases, but the facts and circumstances of this particular case. Mr. Rosen responded that the board gets a lot of these types of cases where people have specific designs they want and ask for a variance to be permitted to do it. The question is will the neighborhood and community be harmed weighed against hardship to the applicant using the balancing test and criteria we have. Ms. Brock reminded the board that the question is not the location, but the height. Mr. Rosen responded that the comment referred to the location and he was responding to that. Ms. Brock stated that if the location played into the weighing of the criteria, then that is appropriate, but the question is the height of the building. Code allows 15’ feet and the request is for 23’ feet; an 8’ foot increase. Mr. Rosen summarized the criteria to the board and said to him, the benefit to the applicant as he sees it has always been whether the applicant can get the benefit of a particular design, and this particular one, there is not other way to do a sloped roof without this roof. Similarly, if people want a big deck, they ask, and many times they can build a smaller deck, but the detriment is not large enough or the significance is not large enough, to deny the request in this board’s opinion and it is granted, or denied after applying the criteria. Mr. Rosen turned to the board and asked for their thoughts. Mr. King asked if the board could grant a lesser variance if we think that would be acceptable. Mr. Rosen responded that the board should not be redesigning the building, but it can grant a lesser variance. Mr. King ask, regarding the undesirable change in the neighborhood character, if some sort of screening would be acceptable to either party to mitigate that. Ms. Brock stated that there is no negotiations with neighbors for this type of thing. The board can direct that type of question to the applicant, but not the neighbor. Mr. King asked Mr. Knewstub. Mr. Knewstub responded that it is incredibly screened right now and she would have to do a lot of clearing to see it from that end of her property. It is screened by natural brambles, trees and the density of that along the property line. He added that he has no problem with creating a screen if you felt it necessary but he wasn’t sure what the height of that is or what’s allowed. ZBA 2021-05-11 (Filed 6/18) Pg. 16 Mr. King responded saying he was thinking more like trees, but it sounds like you are saying you can’t even see it from her property? Mr. Knewstub responded that you can’t walk down there from her property; there is a trail that is overgrown and a pond that is quite far away which you can see from the survey. Ms. Jung stated that she couldn’t see the elevation from one property to the other on the survey and asked if they were on the same level, because that would make a difference in whether the neighbor could see it. Mr. Knewstub responded that it is to the west of Calkins Rd so if that is your base elevation, that is well above where this building would be, maybe 200’ feet and the properties are relatively parallel and at a slight angle. Mr. Rosen summarized, saying then it seems the land slopes down from the road and evenly on both properties and your property is not lower than the neighbor’s property, correct? Mr. Knewstub said yes. Ms. Miller responded, saying that she can see the lumber pile from her house right now, so she will easily be able to see everything because of the way her house is situated. Mr. Rosen said that we have heard that the neighbor can see the site at least when there are no leaves, which is 6 months out of the year, and that the land slopes down equally on both lots. Mr. Vignaux stated that he is looking at the survey map and the proposal is at least 650’ feet from the neighbor’s house and there are lots of things and structures that are only 50’ feet from her house that she can see. She might be able to see the college from her house which is miles away, which shouldn’t prevent us from allowing the college on the hill. Yes, you can see things from your house, that is why you have windows. That is all. Mr. Rosen responded that 650’ feet is pretty far away and that is a good point. He said he was not convinced having a 23’ foot roof versus a 15’ foot roof is going to make any difference to the neighbor’s experience with this building. Mr. Rosen stated that the variance is for the height, and the sloped roof, which is 812 not even 12 12 and is mostly empty space and it is just the peak of the roof that is at 23’ feet high. The walls are 10’ feet versus 8’ feet which is typical. Ms. Jung said it is a substantial variance and the question to her is not whether the neighbor can see it, but the size of the request. Mr. Filiberto said when he looks at the whole scenario, we have one neighbor who is unhappy with the applicant, bi I think I have to discount that, with all due respect, because I think that no matter what the one neighbor does, the other is not going to be happy. ZBA 2021-05-11 (Filed 6/18) Pg. 17 In looking at this building from where it is on the property and how far away it is, and the fact that no one else is speaking against it, it is a significant variance in number, but at the same time, it does not seem to be too out of character for the neighborhood. Mr. King said that he agrees with Mr. Filiberto and Mr. Vignaux; it is a minor accessory building and very far away and it is not like they are asking to add a second story, just a sloped roof and I am having a hard time seeing this as significant. The Board is not looking at the merits of other cases but I want to remind the Board that we routinely grant variances for small amounts of measurements that are a big percentage and I just don’t see a detriment to the community or neighborhood in this request. It happens with side yard setbacks where 90’ feet is required and 20’ feet is proposed and in percentage, it is a large but a small distance in reality. Ms. Jung responded that in setbacks, there many times is no option, but this is for height, and they could absolutely build it differently so this is absolutely self-created and I am still finding it a substantial variance and hesitate to grant such a large variance. Mr. Rosen asked her what she thought the minimum variance needed was and Ms. Jung responded she is not a designer or architect. Ms. Brock spoke up, saying the legal standard is to find that the applicant has shown they they’re entitled to relief according to the balancing of the criteria test, those five standards we always use. You can say that in using the criteria, we find that the applicant requested X but we find that this is what we are going to grant them….You don’t decide up front. You go through the criteria and determine the basis on which you would reduce a request. You have to first determine that they are asking for more than they need before you consider another number. Mr. Rosen asked Mr. King, as an engineer, to comment. Mr. King said that it is a substantial request and I think he has indicated he could have a lower pitch, but, it’s a long ways from anyone’s near view, I would agree it on that, but I would be comfortable with grating a variance and would probably ask it to be less. Mr. Rosen said the difference between what is allowed and what is being requested 8’ feet… Ms. Brock said that you have to find that they’re asking for more than they need, and you are going to need a rationale basis for whatever number you come up with, if you grant less. Mr. Rosen responded that he doesn’t feel like this building with a 23’ foot pitched roof is a significant volume intruding on the landscape versus the same building with a 15’ foot roof. There is no detriment to outweigh the benefit to the applicant. Mr. Vignaux stated that he agrees with that statement. Eliminating the height, the fact that the building will be there is not a big problem and it won’t have adverse physical or environmental ZBA 2021-05-11 (Filed 6/18) Pg. 18 effects, it is self-created because they want to have a studio out there, it is not going to upset the neighborhood terribly by putting a studio in the woods on this very large piece of property. He said he has no problem with the existence of the building out there at all, and we should consider the fact that, whether or not we think that it’s a good idea to allow a building then then discuss whether or not the height is a plus or a minus. Mr. Rosen responded that the right to have the building is not at issue, just the height. Mr. Vignaux said, okay then, 23’ feet, 18’ feet, 15’ feet; how much will each impact the neighborhood? I don’t think 23’ feet is a big deal. Mr. Rosen said at 650’ feet and 67’ feet from the property line, this is not a big deal; these are big distances and a relatively small building. We certainly want to consider the Code and apply it consistently and fairly, and we have certainly turned down a number of appeals, but I am just not seeing that this building is massive and so obtrusive as to cause a negative impact on the community and it is very far away from everything else and as stated, the fact that somebody can see it from 650’ feet away, that’s a pretty high bar to set when you can see things a mile away. The percentage and the distance; it is just the geometry of it to me. The closest anyone is to this is 67’ feet, and it’s 600’ feet from the house and 300’ feet from the pond. This is not a big deal. Mr. Moseley asked a clarifying question; with a 12 pitch, is that on the high side or the low side as you measure it? Mr. Knewstub responded that it is a hip roof, so it is more low profile than a gable and you were correct to say it is just the peak that is the highest point. Mr. Rosen said the survey seems to show 21’ feet off the ground on the maximum side. Mr. Knewstub said he hasn’t done the final grading, but right now it is one side higher off the ground than the other, 2021 2121, diagonal to the hillside, and he could grade it, although he doesn’t want to, but as of now, they have graded it out to 30” inches below and that’s a substantial cross space. Mr. Rosen said that is significant in that now we are down to 6’ feet above the 15’ feet allowed and that is a much smaller percentage, and I would go with 21’ feet variance given what the applicant just said. Mr. King agreed, saying that he did not notice that it was a hip roof and that actually makes it less massive from a distance to that height. That makes it much more acceptable to me. Ms. Jung agreed, saying that a hip roof is more subtle also. ZBA 2021-05-11 (Filed 6/18) Pg. 19 Mr. Rosen moved to drafting the motion. ZBA Resolution 004-2021 Height Variance (Area) 180 Calkins Rd, TP 33.-2-3.1 Low Density Residential Resolved that this board grants the appeal of Ron Knewstub, owner, 180 Calkins Rd., for a lesser amount, that of 21’ feet rather than the requested 23’ feet in height, for a proposed accessory building approximately, with the following Conditions 1. That the height not exceed 21’ feet based on the calculations done by the Director of Code Enforcement and confirmed by the applicant at the meeting, and 2. That the building be constructed substantially as shown, with a hip roof and in the submitted location, and with no electrical connected to the house or grid, no plumbing and no fuel installation as shown on the plans, with the following: Findings That there will not be a detriment to the health, safety and well being of the community or detriment to nearby properties, specifically: 1. That the benefit the applicant wishes to achieve cannot be achieved by any other means feasible given that the applicant wishes to practice piano in the building and the height and vaulted ceilings are needed for acoustics as well as being the best slope for to shed leaves, debris from the surrounding woodlands and snow, ice and water, which this board finds reasonable, and 2. That there will not be an undesirable change in the neighborhood character or detriment to nearby properties given that the roof is a “hip” roof which will make the height of the building less impactful visually, and the distance from the nearest neighbor is approximately 650’ feet and approximately 100’ feet from the road and 67’ feet from the lot line, and the building is placed in a wooded area, and the building will not have any electrical A/C power or connection to the grid or to the main house, or plumbing or fuel system connection, as shown in the submitted plans, which will tend to minimize the impact of the usage of the building, and 3. That the request is substantial, given that 15’ feet is allowed and this board has determined that 21’ feet is the maximum amount to achieve the desired results, which is a 40% increase from what is allowed, but it is only 6’ feet higher and the impact will be negligible, and 4. That the alleged difficulty is self-created in that the applicant wishes a particular design for the building, and 5. That for the reasons stated above, the benefit to the applicant outweighs any detriment to the health safety or welfare of the community. Moved: Rob Rosen Seconded: Bill King ZBA 2021-05-11 (Filed 6/18) Pg. 21 You are receiving this notice because you live within 500 feet of a property requesting a variance from the Town Code. Comments can be made during the meeting, or in writing via mail to 215 N. Tioga St., or via email to ctorres@town.ithaca.ny.us All comments become part of the official record. Town of Ithaca Notice of Public Hearing Zoning Board of Appeals Tuesday, May 11, 2021 at 6:00pm 215 N. Tioga St. Due to public health and safety concerns related to COVID-19, the Zoning Board of Appeals will not be meeting in-person. In accordance with the Governor’s Executive Order 202.1, this meeting will be held by video conferencing through the Zoom App. The public will have an opportunity to see and hear the meeting live and provide comments. 0004-2021 Appeal of Ron Knewstub, owner of 180 Calkins Road, Tax Parcel No. 33.-2-3.1, is seeking relief from Town of Ithaca Code section, 270-59 (Height limitations) for a proposal to construct a 22’ x22’ (484 square foot) accessory building that is proposed to be approximately 23 feet in height. Town of Ithaca Code section 270-59 limits the height of a building to not exceed 15 feet in height, where the current proposal is requesting to allow for the proposed accessory building to have a total height of 23 feet measured from the lowest exterior grade to the highest point of building. The current property is located in the Low-Density Residential Zone. 0005-2021 Appeal of Marla Miller, is seeking a determination regarding activities and a building located at 180 Calkins Road, Tax Parcel No. 33.-2-3.1. The applicant is seeking an interpretation and determination by the Zoning Board of Appeals regarding the Director of Code Enforcement’s determination that a 1,728 square foot building on the property is classified as a garage use, as defined by section 270-5 of Town of Ithaca Code. Applicant is seeking a determination from the Zoning Board of Appeals that the building is not a garage as defined in Town Code. The current property is located in the Low-Density Residential Zone. INSTRUCTIONS TO ACCESS THE VIRTUAL MEETING: If you have a computer, tablet or smartphone, you can access the Zoom meeting by going to www.zoom.us and clicking on “Join a Meeting”, and entering 944-393-1973 into the Meeting ID. You can also call in to the Zoom meeting at +1 (929 436 2866). Marty Moseley Director of Code Enforcement