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HomeMy WebLinkAboutZBA Minutes 2006-05-15 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY, MAY 15, 2006 7:00 P.M. PRESENT: Kirk Sigel, Chairperson; Harry Ellsworth, Board Member; Ronald Krantz, Board Member; Dick Matthews, Board Member; Jim Niefer, Board Member; Susan Brock, Attorney for the Town; Christine Balestra, Planner; Jonathan Kanter, Director of Planning; Tee-Ann Hunter, Town Clerk. ABSENT: None OTHERS PRESENT: Michael Moore, 1028 East Shore Dr; Lee Shurtleff, Tompkins County Emergency Response, 92 Brown Rd; Rick Couture, Ithaca College; Fred Vanderburgh, Ithaca College; Sean Cahill, Gilbane building co.; Phil Walker, 1105 Hanshaw Rd; Richard B. Thaler, 1030 East Shore Dr; Katrina & Rob Medeiros, 402 E. Upland Rd; Greg Albrecht, 309 Roat St; Dan Kathan, 307 Roat St; Pascal Oltenacu, 11 Dove Dr; Michael Pinnisi, 520 Cayuga Heights Rd; Burke Carson; Paige Anderson, 520 Cayuga Heights Rd; Bob Terry, 107 Worth St Chairperson Sigel opened the meeting at 7:00 p.m. Chairperson Sigel — Good evening, welcome to the May meeting of the Town of Ithaca Zoning Board of Appeals. This time we have seven appeals. We will be taking them in the following order: The first two appeals are that of Ithaca College, the first one regarding their communications tower, and the second regarding their business school. The third is the appeal of Greg Albrecht, the fourth of Pascal Oltenacu, the appeal of Phillip Walker, the appeal of Timothy Moore, and the appeal of Michael Pinnisi. APPEAL of Ithaca College, Appellant, Lee Shurtleff, Agent, requesting a modification of a previously granted height variance from the requirements of Chapter 270, Article IX, Section 270-70 of the Town of Ithaca Code to be permitted to construct a 195+/- foot tall radio communications tower on the Ithaca College campus located off Danby Road, Town of Ithaca Tax Parcel No. 41-1-30.2, Medium Density Residential Zone. Said tower exceeds the 30-foot maximum permitted height for a structure in the Medium Density Residential Zone. This is a modification of a previously approved height variance for the tower that was originally granted by the Zoning Board of Appeals on August 16, 2004 (original approval for 180-foot tall tower). A variance from the dimensional requirements of Section 270-219(F) is also being requested to allow a fall zone with a radius less than the height of the tower. Chairperson Sigel—Is somebody from Ithaca College ready? Have a seat and please just begin with your name and address,please. 1 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Mr. Shurtleff - I'm Lee Shurtleff, director of Tompkins County Emergency Response, working in cooperation with Ithaca College. Mr. Couture - I'm Rick Couture, director of physical plant at Ithaca College, my address is 104 Westhaven Rd, Ithaca. Chairperson Sigel — OK. And, I think your packet seemed pretty self-explanatory as to what has changed at the site, and why you want to go higher. Is there anything you want to add? Mr. Shurtleff - I don't have anything I want to add. I am available to answer any questions if the board should have some. Chairperson Sigel — OK. So, originally you were planning to have the radio antenna below the communications equipment, the emergency equipment, is that right? Mr. Shurtleff- Initially, that was the case. The county equipment for the propagation to fit into the overall simulcast radio system needs to be in the vicinity of 180 feet, and in working through the final design issues, the broadcast antennas for the college radio station are of a live nature, so it created a safety issue on getting past those to work on the equipment above, and so we chose to put those to a higher point. One of the parameters that the legislature directed me to work with was that any new construction be kept under 200 feet, to preclude any lighting, and we've verified that with the FAA that no lighting is required with the additional height. So, this will allow us to place the broadcast antennas at the higher level and not interfere with the county signal. Chairperson Sigel —OK. Any questions, comments? So, I don't think we should need to do an environmental assessment for this, or do we? Ms. Balestra—I think we do. Chairperson Sigel — You do for a height variance? I guess not because it's not a residential building. Ms. Balestra—Right. And we would need to do it as part of the telecommunications law anyway. Chairperson Sigel—OK. Do you have anything you wanted to say, Chris, about that? Ms. Brock—When you do the SEQR, you should do it for both the request for the height variance as well as the request for the diminution in fall zone. Ms. Balestra—Oh, I can explain the fall zone requirement. Chairperson Sigel—OK. 2 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Ms. Balestra—Our telecommunications law requires a fall zone that is equal to the radius of the height of the tower, so if you have a 100 foot tower, then you should technically have a fall zone that, if it is to fall over, you would have a radius of 100 feet around. And because of the design of this particular tower, it is designed to collapse upon itself so that the radius needed is only, I think they said 41 feet. So, we're asking for a waiver from the dimensional requirements, because the tower is going to be 195 feet tall. Mr. Krantz—There will be no light on the top of that tower? Mr. Shurtleff- That's correct. Mr. Krantz—But if it were 200 feet, it would be required to have a light? Mr. Shurtleff- That's correct. Mr. Krantz—Is that a big hassle,putting a light on top? It's still up there pretty high. Mr. Shurtleff- Desire wise from an environmental and visual standpoint not to light any of the towers, so we attempted to keep it below that ... Mr. Krantz—I'm thinking in terms of a low-flying plane at night. Mr. Couture - Again, that height was approved by the FAA, and so we had to assume that it met all their requirements and there were... Ms. Brock —And one of the Planning Board's conditions of approval was that the tower not be lit nor marked beyond what was required by the FAA. Chairperson Sigel—So, how large was the fall zone previously, do you recall? Mr. Shurtleff- I believe the previous variance called for a 70 foot radius. Ms. Brock — And they didn't get an area variance for that, the Planning Board actually waived that requirement the last time, but on this go-round, we have determined the Planning Board actually didn't have the ability to waive that requirement, that that really needed an area variance which is why that piece of it is coming to you, and you didn't see it the first time around. Chairperson Sigel—So is it the case that you still have 70 feet for a fall zone? Mr. Shurtleff- I believe that was the number that was requested because of the proximity of the water tower, but it appears from the engineering designs that we have that it will fall at a lesser point, or the potential fall point is lesser: 41 feet. Ms. Brock—I believe they are requesting a 75 foot fall zone radius. 3 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Chairperson Sigel — OK. So 75 is what you have, but it should fall within a smaller distance? Mr. Shurtleff- That's correct. Chairperson Sigel — OK, well, seeing as this, I mean, I don't think the request is substantially changed since the last time, so I will re-move the same motion from Zoning Board resolution 2004-038, with just the modification changing the 180 feet... Ms. Brock—We need to do the SEQR first. Chairperson Sigel — Yeah, I'm moving the... this is the SEQR motion that I'm moving. Changing the 180 feet to be 195 feet. Is there a second on the environmental assessment motion? Mr. Niefer—Did you ask for a public hearing? Chairperson Sigel — Yes, we forgot the public hearing, thanks Jim. Before we vote on that, we'll open the public hearing if anyone wishes to speak regarding the Ithaca College communications tower [pause] and if not, we'll close the public hearing. Chairperson Sigel opened the public hearing at 7:12 and closed the public hearing at 7:13. Chairperson Sigel—Now, a second on the motion? OK, all in favor? ZB RESOLUTION NO. 2006- 031 : ENVIRONMENTAL ASSESSMENT : Ithaca College, Appellant, Ithaca College Campus, Town of Ithaca Tax Parcel No. 41.-1-30.2, Medium Density Residential Zone. MOTION made by Kirk Sigel, seconded by Ron Krantz RESOLVED that this Board makes a negative determination of environmental significance in the appeal of Ithaca College and/or Tompkins County, Appellants, requesting a variance from the requirements of Article IX, Section 270-70 of the Town of Ithaca Zoning Ordinance, to be permitted to construct a communications tower with a height of 195 feet for the reasons stated in the Environmental Assessment Form prepared by Tompkins County staff dated June 30, 2004. The vote on the MOTION resulted as follows: AYES: Sigel, Ellsworth, Krantz, Niefer, Matthews NAYS: None 4 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES The MOTION was declared to be carried. Ms. Hunter- There was a second on that? Chairperson Sigel—Ron did. Ms. Hunter- Ron? OK. Chairperson Sigel —And I will, to approve the requested variance, I will re-move motion 2004-039, changing the not to exceed 180 feet to 196 feet, and also adding approval for the fall zone to be not less than 75 feet. Second? Mr. Matthews —I have a question. Chairperson Sigel—Sure. Mr. Matthews —I'm a little thick tonight I think or something, which is not unusual. You have a tower that's going to be 195 feet? Chairperson Sigel—Mmmm hmmm. Mr. Matthews —And the fall radius is going to be how many feet? Chairperson Sigel—I think they've said 41 feet, it's designed to collapse... Mr. Krantz—It collapses in itself. Mr. Matthews —I need to be explained why that would be less than 195 feet. Chairperson Sigel — I believe the tower has points along it where it is designed to break first, and so I'm sure the applicant can explain better. Mr. Shurtleff- I do have a statement from Glen Martin engineering, which is the tower builder, and this was shared with the Planning Board as well... "The proposed 190 foot mounted pole, rated at a 100 mile per hour three second gust, and 60 mile an hour three second gust with 3/4 inch ice accumulation on the tower, this is in accordance with the national standard. Should an event causing failure occur, the proposed tower would fail at approximately 154 feet of the total tower height with the resulting maximum stress of the system, thus the corresponding fall zone correlates to a 41 foot radius and is within the proposed 75 foot radius required by the client." When we asked for the design of the tower to be done, we indicated that it needed to be designed so that if there were a major failure, it occurred at no less than 75 feet from the top of the tower, and in this instance the engineers are telling us that catastrophic failure would occur at 154 feet, thus the 41 feet we've... 5 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Mr. Matthews — So we have to... thank you very much... we have to trust that the engineering studies on this type of structure led to the belief that someone standing at 41 feet fear not their life. Chairperson Sigel—Uhhh... Mr. Matthews —Is that right? Chairperson Sigel — Essentially. It is also that case that these objects that are in the fall zone in this case are the communications building, I believe, right, and the water tank. So there's no... the nearest inhabited structure is, I think much further than 200 feet? Mr. Shurtleff- Much further, yes, that is correct. Chairperson Sigel— So there is no regularly occupied structure within anywhere near 200 feet in this case, so it is really just a concern for the equipment, building and the water tower. Mr. Matthews — So if there's nothing within 200 feet of the center of this pole, if I can use the term pole, why don't we just hold it to 195 feet? If there's nothing there? Chairperson Sigel—Because I think that the Town telecommunications law requires there to be nothing there, even other structures, so they need a variance to be able to maintain a water tank. Mr. Krantz—We also have to trust the rules that the low flying plane could crash into this tower, if it was 200 feet and didn't have a light, but at 195 feet it could never happen. Mr. Matthews —Are you pulling my leg tonight? Chairperson Sigel — Well, in that case, obviously we have to trust the FAA's determination on that. Mr. Matthews — Yeah, but we're not talking FAA here, I don't want to take up everybody's time, I just, if there's nothing within 200 feet of the center of this pole, I don't see why we just don't... Ms. Balestra—The water tank is within the 200 feet of the pole. Mr. Matthews —Pardon? Ms. Balestra—The water tank is located within that 200 feet. Mr. Matthews —The what? Ms. Balestra—The water tank. 6 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Mr. Matthews —The water tank. Ms. Balestra—on the aerial... and we can't move that. Mr. Matthews —So the variance is to serve the water tank? Chairperson Sigel—Yeah. Mr. Matthews - Is that correct, if I can put it in that way? Who cares about a water tank? OK, thank you. Chairperson Sigel—OK, I don't remember if we got a second? Mr. Ellsworth—I'll second. Chairperson Sigel—OK. All in favor? ZB RESOLUTION NO. 2006- 032: Ithaca College, Appellant, Ithaca College Campus, Town of Ithaca Tax Parcel No. 41.-1-30.2, Medium Density Residential Zone. MOTION made by Kirk Sigel, seconded by Harry Ellsworth RESOLVED that this Board grants the appeal of Ithaca College requesting a variance from the requirements of Article IX, Section 270-70 of the Town of Ithaca Zoning Ordinance, to be permitted to construct a communications tower with a height not to exceed 196 feet on the Ithaca College campus, Town of Ithaca Tax Parcel No. 41-1-30.2, Medium Density Residential Zone. Approval is also granted for the fall zone to be not less than 75 feet. FINDINGS: 1. The requirements for an area variance have been satisfied. 2. Due to the public safety use of the tower by Tompkins County, this tower meets an important public need. CONDITIONS: The old communications tower on the above site will be removed within six months of the completion of the new communications tower. The vote on the MOTION resulted as follows: AYES: Sigel, Ellsworth, Krantz, Niefer, Matthews TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES NAYS: NONE The MOTION was declared to be carried. Chairperson Sigel - OK, thanks. Mr. Couture - Thank you. Mr. Shurtleff- Thank you. APPEAL of Ithaca College, Appellant, Fred Vanderburgh, Agent, requesting a modification of a previously granted height variance from the requirements of Chapter 270, Article IX, Section 270-70 of the Town of Ithaca Code, to be permitted to construct a four-story, 72+/- foot tall building for the new Ithaca College School of Business, located north of Job and Friends Halls on the Ithaca College campus, Town of Ithaca Tax Parcel No.'s 41-1-30.2 and 41-1-30.4, Medium Density Residential Zone. Said building exceeds the maximum permitted height for structures in a Medium Density Residential Zone. This is a modification of the previously approved height variance for the building that was originally granted by the Zoning Board of Appeals on February 27, 2006 (original approval for 69-foot tall building). Chairperson Sigel—Hi. Mr. Vanderburgh - Hi. Fred Vanderburgh, Senior Assistant director Construction, Planning and Design, Ithaca College. And that's 201 Physical Plant building, Ithaca College, NY. To my left is Sean Cahill, Sean is the project manager for Gilbane building company who is the construction manager on the project. He's just along for the evening because he's very interested in this so we can get our permit. Mr. Ellsworth — Well, instead of going through this whole thing, can you just tell us what's changed? Mr. Vanderburgh - Yeah, I can. I brought... this is a photograph of the model, this is just what's going to look like. Do you want me to use that mic, or...? Ms. Hunter- If you could use the mic, I would appreciate that, thank you. Mr. Vanderburgh - This is a model of the building, this is to scale. This is Robert A. M. Sterns model of the building. Everything is going to stay the same, what has happened, Harry, is because of the mechanicals, now that the mechanicals have become fully developed, you know how that works, the duct work is going to take up more space on each floor, so what's happened is it's raised that elevation that 3 feet throughout the 8 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES course of the building. Here's a... this is a drawing of the building as it will exist. This is 71 foot 7. This is the same building that we came to you with before, that's at 68, 4. So, you can see there's not much difference. Penthouse is gone so... Mr. Matthews —Three feet. Three feet essentially from what we've already approved. Mr. Vanderburgh - Right, that's what we're talking about is three feet here. Nothing's changed as far as the design of the building, windows haven't gotten any larger, nothing's happened except we've grown in height only to accommodate the mechanical systems. Mr. Ellsworth—You've already started digging there. Mr. Vanderburgh - We're doing site work now. We do not have a foundation permit. We're waiting to get our full set of permits, and once we've gone through your appeal. Are there any questions? Chairperson Sigel—OK, it doesn't look like we did an environmental...? Ms. Balestra — The first time around there was a coordinated review, environmental review, and the Planning Board made the determination, so this time around this doesn't need to go to Planning board, so it's up to the Zoning Board to make the environmental determination. It's not much difference, and we don't see an increase in any of the impacts, not significant. Chairperson Sigel—OK. Mr. Matthews — Just to get the question on the table if nothing else, may sound silly... can you dig three feet lower? Mr. Vanderburgh - Well, what that's going to do is change your elevations of windows and everything in the building. The addition to this space it's in small increments every floor, it's not just all taken in one spot, it's the additional foot here or the foot there to pick up room that gives you adequate space to run your duct work through. And the cost that would be incurred to take that rock out, I mean they're hitting rock now in places at six inches. So, it's not only feasible from an aesthetic standpoint, but it's not feasible throughout the building. It's by a floor by floor basis, it's not all in one spot. Mr. Matthews —OK. Chairperson Sigel — OK, any other questions or comments? All right, I'll move... thank you, I keep forgetting the public hearing. We'll open the public hearing in this case if anyone wishes to speak regarding Ithaca College's new Business School. If not, we'll close the public hearing. Chairperson Sigel opened the public hearing at 7:24 p.m. and closed the public hearing at 7:25 p.m. 9 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Chairperson Sigel — I will move, in regard to the appeal of Ithaca College School of Business, I will move to make a negative determination of environmental significance for the reasons stated in the Part 11 Environmental Assessment Form prepared by Town Staff. Second? Mr. Krantz—Second. Mr. Matthews —Second. Chairperson Sigel—All in favor? ZB RESOLUTION NO. 2006- 033 : ENVIRONMENTAL ASSESSMENT : Ithaca College, Appellant, Ithaca College Campus, Town of Ithaca Tax Parcel No. 41.-1-30.2 and 41.-1-30.4, Medium Density Residential Zone. MOTION made by Kirk Sigel, seconded by Ron Krantz RESOLVED that this Board, in regard to the appeal of Ithaca College School of Business, makes a negative determination of environmental significance for the reasons stated in the Part II Environmental Assessment Form prepared by Town staff. The vote on the MOTION resulted as follows: AYES: Sigel, Ellsworth, Krantz, Niefer, Matthews NAYS: None The MOTION was declared to be carried. Chairperson Sigel — OK, and I will re-move our motion 2006-007, regarding the Ithaca College School of Business with the change in the height, instead of not exceeding 69 feet, to 70... Mr. Matthews —72. Chairperson Sigel—Is it under 72 feet? Mr. Vanderburgh - Yeah, it is now, but I think 72 would be, I think that's what the original application was for. Chairperson Sigel—OK, so not to exceed 72 feet. Mr. Vanderburgh - Right. 10 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Chairperson Sigel—Second? Mr. Ellsworth seconded the motion. Chairperson Sigel—All in favor? ZB RESOLUTION NO. 2006- 034: Ithaca College, Appellant, Ithaca College Campus, Town of Ithaca Tax Parcel No. 41.-1-30.2 and 41.-1-30.4, Medium Density Residential Zone. MOTION made by Kirk Sigel, seconded by Harry Ellsworth RESOLVED that this Board grants the appeal of Ithaca College, requesting a variance from the requirements of Chapter 270, Article IX, Section 270-70 of the Town of Ithaca Code, to be permitted to construct a four-story, approximately 36,500 square foot building for the new Ithaca College School of Business, located north of Job and Friends Halls on the Ithaca College campus, Town of Ithaca Tax Parcel No.'s 41-1-30.2 and 41-1-30.4, Medium Density Residential Zone. FINDINGS: 1. The applicant has met the requirements for an area variance. 2. Even though the height is significantly higher than what is allowed, it is mitigated by the fact that there are other buildings in the area that are of similar height, and it is within Ithaca College's central campus, and therefore only impacts other Ithaca College buildings, and does not appear to impact any neighbors other than Ithaca College neighbors. CONDITIONS: 1. The height shall not exceed 72 feet 2. The building shall be constructed as indicated on the applicant's plans submitted to this board. The vote on the MOTION resulted as follows: AYES: Sigel, Ellsworth, Krantz, Niefer, Matthews NAYS: NONE The MOTION was declared to be carried. Chairperson Sigel—OK. Mr. Vanderburgh - Thank you. Chairperson Sigel—Yup. 11 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES APPEAL of Greg Albrecht, Appellant, requesting a variance from the requirements of Chapter 270, Article IX, Section 270-71(C) of the Town of Ithaca Code, to be permitted to construct a 240+/- square foot addition on the east side of a residence located at 309 Roat Street, Town of Ithaca Tax Parcel No. 71-7-13, Medium Density Residential Zone. Proposed addition will be located approximately 5-feet within the 15-foot required side yard setback. Mr. Albrecht - Thank you for considering our appeal. I'm Greg Albrecht, 309 Roat Street, Ithaca. Ms. Zeppelin - And I'm Victoria Zeppelin, 309 Roat Street, Ithaca. Chairperson Sigel — I believe your explanation was — seemed pretty complete, was there anything you wanted to add that was not in your packet? Mr. Albrecht - Yeah. The application was developed four or five weeks or so ago, and our lives and the lives of our neighbors have been very busy and have had other priorities, and in the last couple days, we've had some involved conversations which bring very legitimate concerns over two maple trees about 15 or so inches in diameter as factors in the decision. And those are surrounding quality of life and the look of the properties as we and out neighbors you know,pull into driveways and look out of kitchen windows and things like that. So, the thing that I want to put on the table, and that is specifically in regards to our good friends and neighbors, Dan and Lenore Kathan where there is a letter of support in front. So that's to be modified a bit in the following area, in that: if approved, there will be significant discussion and reflection on the proposed addition before Victoria and myself go ahead with further drawings and whatever construction that comes out of that. Chairperson Sigel— So are these trees that you had anticipated removing that you're now hoping not to remove? Mr. Albrecht - The goal was to always, they're on the property line, and the goal was to maintain them and that still is the goal, so we need to further explore what we can do to maintain the two maples for the four feet of excavation that is required for the foundation that's then back-filled, what can we do to treat the roots such that to maintain the trees where they are. What would — what is speculated to happen to the lower branches that provide more buffer during the growing season when they have leaves and things like that... and then just a little bit of time just to let it settle just a little more among the 309 and 307 Roat Streeters. Mr. Matthews — Well, with all due respect to your value, your concern about the trees, that's not our official concern. Chairperson Sigel—Unless someone on the board had a concern specifically about... Mr. Matthews —About Maple trees. 12 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Chairperson Sigel - ...about the trees, yeah. Sometimes we have had cases where tree removal has been an issue. Mr. Matthews —But not in this case. Chairperson Sigel—It's not something that I had considered an issue. Mr. Matthews —OK. We're concerned with the 5 foot encroachment. Chairperson Sigel - It sounds like—that hasn't changed, right? Mr. Matthews —That hasn't changed, OK. Chairperson Sigel—You're just trying to work with your neighbor to preserve the trees... Mr. Matthews —I don't want to get confused. Chairperson Sigel - ... as best as possible. Mr. Albrecht - Yeah, I just wanted to add that factor. Chairperson Sigel — OK, any questions for the applicant? So, we do not have any environmental assessment for this. Chris, any comments about the case? Ms. Balestra—Not exactly. Generally, staff's position is to retain as much vegetation as possible, so it seems as though that's what they're planning on doing. But there is no formal environmental review for this project. It's Type II. Chairperson Sigel—And we do have the letter of support from your neighbor. Mr. Albrecht - Which should be moderated given more time to reflect, and that's exactly what we intend to do in the weeks ahead. Chairperson Sigel — OK, we'll open the public hearing with this case. If anyone wishes to speak. And if not, we'll close the public hearing... Chairperson Sigel opened the public hearing at 7:32 p.m. Chairperson Sigel - ...Sir, did you want to speak? Sure, please, if you don't mind you can sit on the end here at this microphone. That's fine. If you could just begin with your name and address. Mr. Kathan - My name is Dan Kathan and I live at 307 Roat Street, and my wife and I did provide a letter of support to our good friends and good neighbors and we still are inclined to be supportive. We, over the last month, had a medical issue in my wife's case 13 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES that involved major surgery and was quite an emotional distraction for the last month or so. And we'd like some time to just sort of re-reflect on this. I think we're still inclined to be supportive, but we'd like to reflect on it. And that's the only comment I wanted to make. Pretty similar to what Greg said. And I think on each of the issues... I think multiple issues that might have impact as a result of the change... so I just wanted to make that. Chairperson Sigel — We don't — as a board, we don't have a mechanism, say, to grant approval with some kind of delay. I don't think we really have a way to formalize what you're requesting, as far as going slowly or something. I mean, we can just basically approve or deny, and I guess I would just ask if you are comfortable enough with your neighbors to, if we were to approve it, I don't know that we could really get a condition in there that would maybe get at what you're asking for. Mr. Kathan - We're comfortable. Chairperson Sigel—OK. Mr. Albrecht - Then I'm comfortable. Chairperson Sigel—Thank you very much. Mr. Kathan - Thanks. Mr. Matthews — The other alternative is for the appellant to seek another meeting at a later time as convenient to the neighbor, right? Chairperson Sigel—Yeah. The applicant could request an adjournment... Mr. Matthews —At least you know that. You have that option, if you wish to adjourn for the peace of the neighborhood, et cetera and come back at a later date with another presentation, you can do that. Ms. Balestra—Can I add something quickly? Chairperson Sigel—Sure. Ms. Balestra—Just from my experience speaking with the building department, they're a little backed up with building permits anyway, so even if you applied for a building permit, it would be probably another month before you get it, so... Mr. Albrecht - So that would be a discussion with the neighbors to delay. We're not that close at all to having construction begin. We're still wrangling with the first drawing that's been drafted, so time will happen and time will especially be in place given that our close neighbors have requested it. But having said that, I would gladly formally delay if 14 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES that would be more comfortable, Dan, that's fine. Another appearance fee associated with that? Ms. Balestra—Probably, yes, we can't waive that. Mr. Albrecht - I'm not too excited about that portion of it, but... Chairperson Sigel — Well, we are sort of heading into the busy season here and the board's agendas are fairly full, so if your neighbor, Mr. Kathan, seemed comfortable, so I think it might be best for you to go ahead tonight and for us to vote on it. Mr. Kathan - If we're not going ahead unless Lenore and I are comfortable, if that's our understanding, then I say why not get this part done tonight and [inaudible] try to reach an understanding. And if we're unable to reach an understanding, it won't ... Mr. Albrecht - It won't... yes, yes. Mr. Kathan - [inaudible], then I'm comfortable. Great, thanks. Mr. Albrecht - There you are. Chairperson Sigel—Such neighborly cooperation. Mr. Ellsworth—That's good. Mr. Matthews —We don't want to start ... Mr. Albrecht - It's a good block Mr. Niefer—Kirk, I had a question... Chairperson Sigel—Go ahead, Jim. Mr. Niefer - ... or a point of observation. I note that the survey shows a carport on the other end of the property and also that the carport seems to extend into the 15 foot setback area, I wondered if they had received a variance for the construction of the carport or whether the previous owner had received a variance for the construction of the carport. Chairperson Sigel — Does a carport just need 10? A carport just might need a ten foot setback because it's a garage. Ms. Balestra—I think so. Garage, right. Chairperson Sigel—Yeah, I think a garage can be 10 feet. 15 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Mr. Ellsworth—As long as it's not inhabited. Mr. Albrecht - Sometimes I have to sleep out there, but otherwise... [laughter] Chairperson Sigel—If you kill one of those trees... OK, any other questions, comments? OK, I will move to... Ms. Hunter- Did you close the public hearing? Chairperson Sigel — Oh, yeah. If no one else wishes to speak, we will close the public hearing. Chairperson Sigel closed the public hearing at 7:38 p.m. Chairperson Sigel — I will move to grant the appeal of Greg Albrecht, requesting a variance from the requirements of chapter 270, Article IX, Section 270-71(C) of the Town Code, to be permitted to construct an approximate 240 square foot addition on the east side of a residence located at 309 Roat Street, Town of Ithaca Tax Parcel No. 71-7-13, Medium Density Residential Zone, with the finding that the requirements for an area variance have been satisfied, specifically having found that with support of the neighbor, and it only being a 5 foot encroachment in a 15 foot setback, an undesirable change in the neighborhood will not occur; that the requested variance is not substantial, will not have adverse physical or environmental effects on the area; that the difficulty is not self-created and therefore having found that the benefit to the applicant does outweigh any detriment to the community. Second? Mr. Krantz—Second. Chairperson Sigel—All in favor? ZB RESOLUTION NO. 2006- 035: Greg Albrecht, Appellant, 309 Roat Street, Town of Ithaca Tax Parcel No. 71.-7-13, Medium Density Residential Zone. MOTION made by Kirk Sigel, seconded by Ron Krantz RESOLVED that this Board grants the appeal of Greg Albrecht, requesting a variance from the requirements of chapter 270 Article IX, Section 270-71 (C) of the Town of Ithaca Code to be permitted to construct an approximate 240 square foot addition on the east side of their residence at 309 Roat Street, Tax Parcel 71.-7-13, Medium Density Residential Zone. FINDINGS: The requirements for an area variance have been satisfied, specifically: 16 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES 1. Having found that, with support of the neighbor, and it only being a 5 foot encroachment into a 15 foot setback, an undesirable change in the neighborhood will not occur; 2. That the requested variance is not substantial, and will not have adverse physical or environmental effects on the area; 3. That the difficulty is not self created; and therefore, 4. The benefit to the applicant does outweigh any detriment to the community. The vote on the MOTION resulted as follows: AYES: Sigel, Ellsworth, Krantz, Niefer, Matthews NAYS: NONE The MOTION was declared to be carried. Chairperson Sigel—OK, thank you. APPEAL of Pascal Oltenacu, Appellant, requesting a variance from the requirements of Chapter 270, Article IX, Section 270-71(C) of the Town of Ithaca Code, to be permitted to maintain an addition on the south side of a residence located at 11 Dove Drive, Town of Ithaca Tax Parcel No. 61-1-8.49, Medium Density Residential Zone. Existing addition is located approximately four inches within the 15-foot required side yard setback. Chairperson Sigel—Good evening. Mr. Oltenacu - Good evening. Chairperson Sigel—If you could just state your name and address for us. Mr. Oltenacu - My name's Pascal Oltenacu, and I live at 11 Dove Drive. Chairperson Sigel —And I believe that your letter to the board was pretty well-explained, and this might be our smallest requested variance ever, at 4 inches. Mr. Oltenacu - I think it's important. Chairperson Sigel—There doesn't seem to be too much to say in this case. Mr. Matthews —Get a big bulldozer and pull the house. 17 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Chairperson Sigel — You could try to push it a little bit, take a little siding off. Any questions? No. OK, we'll open the public hearing, if anyone wishes to speak. And if not, we'll close the public hearing. Chairperson Sigel opened the public hearing at 7:41 p.m. and closed the public hearing at 7:42 p.m. Chairperson Sigel—Again, we do have a short environmental assessment on this. Ms. Balestra—No. Chairperson Sigel—Oh, that's just the back of the... Ms. Balestra—It's a Type 11. Chairperson Sigel—OK, so I will move to grant the appeal of Pascal Oltenacu, requesting a variance from the requirements of Chapter 270, Article IX, Section 270-71 (C) of the Town of Ithaca Code to be permitted to maintain an addition on the south side of a residence located at 11 Dove Drive, Tax Parcel 61.-1-8.49, Medium Density Residential Zone. With the findings that the requirements for an area variance have been satisfied by the applicant, specifically given that the addition has already been constructed, the benefit to the applicant is... cannot be feasibly achieved without this variance; that, because the variance is so small, there will not be an undesirable change in the neighborhood; the request is not substantial being less than 1 foot, will have no adverse environmental effects; and while the difficulty is self-created, nevertheless, the benefit to the applicant outweighs the detriment to the community. Second? Mr. Matthews —Yeah. Chairperson Sigel—All in favor? ZB RESOLUTION NO. 2006- 036: Pascal Oltenacu, Appellant, 11 Dove Drive, Town of Ithaca Tax Parcel No. 61.-1-8.49, Medium Density Residential Zone. MOTION made by Kirk Sigel, seconded by Dick Matthews RESOLVED that this Board grants the appeal of Pascal Oltenacu, requesting a variance from the requirements of Chapter 270, Article IX, Section 270-71 (C) of the Town of Ithaca Code to be permitted to maintain an addition on the south side of a residence located at 11 Dove Drive, Tax Parcel 61.-1-8.49, Medium Density Residential Zone. FINDINGS: The requirements for an area variance have been satisfied by the applicant, specifically: 18 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES 1. Given that the addition has already been constructed, the benefit to the applicant cannot be feasible achieved without this variance; 2. Because the variance is so small, there will not be an undesirable change to the neighborhood; 3. The request is not substantial, being less than 1 foot, and will have no adverse environmental effects; and 4. While the difficulty is self-created, nevertheless, the benefit to the applicant outweighs the detriment to the community. The vote on the MOTION resulted as follows: AYES: Sigel, Ellsworth, Krantz, Niefer, Matthews NAYS: NONE The MOTION was declared to be carried. Chairperson Sigel—OK, you're all set. Mr. Oltenacu - Thank you. APPEAL of Phillip E. Walker, Appellant, requesting special approval according to the requirements of Chapter 270, Article IX, Section 270-69(B) of the Town of Ithaca Code, to be permitted to have a home occupation within a residence located at 1105 Hanshaw Road, Town of Ithaca Tax Parcel No. 71-6-3, Medium Density Residential Zone. Said home occupation is an allowable use in the Medium Density Residential Zone upon receipt of special approval by the Zoning Board of Appeals. Chairperson Sigel—Good evening. Mr. Walker - Good evening. Phil Walker, 1105 Hanshaw. I've been in the commercial real estate business for 15 years. The last three years I've been an independent broker, representing commercial clients throughout central New York State. Recently purchased the home on 1005 Hanshaw Road, my business is conducted primarily out of town in front of Planning Boards and Zoning Board of Appeals. State real estate law requires that I have a sign on my place of business stating that I am a licensed real estate broker. If approved, my sign will comply with the Town ordinance and be well within the four square foot maximum area. The area of my office space is approximately 200 square feet which is about 10% of the floor space of the dwelling. I comply with all the provisions of the home occupation definition in the Town Zoning Ordinance, as well as the special approval, special permit criteria. I appreciate your consideration. Chairperson Sigel—So... sorry, go ahead. 19 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Mr. Krantz—Room for parking? Mr. Walker- For my own personal vehicle, absolutely. Mr. Krantz—Only one? Mr. Walker- There is adequate parking, absolutely. Chairperson Sigel — If you were to have someone, a client, come to your house, do you have room for that parking? Mr. Walker- Sure, yes. Chairperson Sigel —Yes. But I got the impression that having to put up this sign is more of just a formality for you, and not something, you're not actually seeking to advertise yourself locally. Mr. Walker- Absolutely not. And the three years I've been on my own, I've never had a client come to my place of business. Mr. Krantz—Have you ever had a sign before? Mr. Walker- A very discrete sign, yes. Not at that location, no. Mr. Krantz—maybe with a bigger sign, you'll have people there. Mr. Walker- I'll have the marketing department look into that. [laughter] Mr. Matthews —Maybe you don't want to do that. Won't have traffic now, right? Mr. Walker- [inaudible] Chairperson Sigel—OK... Mr. Matthews —Are there neighbors or anything like that? Chairperson Sigel — Other questions or comments? It seems like extremely low impact home occupation. Mr. Matthews —We just don't know if there are neighbors going to speak about it. Chairperson Sigel — Now, we'll find out in a minute. Chris, any comments on the environmental assessment? 20 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Ms. Balestra —No, although I should add that the special approval criteria was added to your packets so you can see and use that as a consideration for determinations. Chairperson Sigel—They've added some, with the last zoning change, I guess. It used to just go up to H. Ms. Balestra—Say that again. Chairperson Sigel—The number of criteria for special approval... Ms. Balestra—Has been added? Chairperson Sigel—has grown. It used to be A-H. Ms. Balestra—Oh, yes, that's right. Chairperson Sigel—Now we go up to L. Ms. Balestra—This is the updated version from the updated zoning ordinance. Chairperson Sigel — OK, well, I will move to... I guess, no, first I will open the public hearing, if anyone wishes to speak regarding Mr. Walker's appeal. And if not, we will close the public hearing. Chairperson Sigel opened the public hearing at 7:47 p.m. and closed the public hearing at 7:48 p.m. Chairperson Sigel — I will move to make a negative determination of environmental significance in the appeal of Phillip Walker for the reasons stated in the Part II environmental assessment form prepared by Town Staff. Second? Mr. Matthews —Second. Chairperson Sigel—All in favor? ZB RESOLUTION NO. 2006- 037 : ENVIRONMENTAL ASSESSMENT : Phillip E. Walker, Appellant, 1105 Hanshaw Road, Town of Ithaca Tax Parcel No. 71.-6-3, Medium Density Residential Zone. MOTION made by Kirk Sigel, seconded by Dick Matthews RESOLVED that this Board makes a negative determination of environmental significance in the appeal of Phillip Walker, for the reasons stated in the Part II Environmental Assessment Form prepared by Town staff. The vote on the MOTION resulted as follows: 21 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES AYES: Sigel, Ellsworth, Krantz, Niefer, Matthews NAYS: None The MOTION was declared to be carried. Chairperson Sigel —And I will move to grant the appeal of Phillip E. Walker, requesting special approval according to the requirements of Chapter 270 Article IX, Section 270-69 (B) of the Town of Ithaca Code to be permitted to have a home occupation within a residence located at 1105 Hanshaw Road, Tax Parcel 71.-6-3, Medium Density Residential Zone. With the findings that the requirements for special approval have been met by the applicant and with the condition that the applicant's business use of his home be restricted to what he has described to this board in his letter to the board. Second? Mr. Niefer—Second. Chairperson Sigel—All in favor? ZB RESOLUTION NO. 2006- 038: Phillip E. Walker, Appellant, 1105 Hanshaw Road, Town of Ithaca Tax Parcel No. 71.-6-3, Medium Density Residential Zone. MOTION made by Kirk Sigel, seconded by Jim Niefer RESOLVED that this Board grants the appeal of Phillip E. Walker, requesting special approval according to the requirements of Chapter 270 Article IX, Section 270-69 (B) of the Town of Ithaca Code to be permitted to have a home occupation within a residence located at 1105 Hanshaw Road, Tax Parcel 71.-6- 3, Medium Density Residential Zone. FINDINGS: The requirements for special approval have been met by the applicant. CONDITIONS: The applicant's business use of his home be restricted to what he has described to this board in his letter to the board. The vote on the MOTION resulted as follows: AYES: Sigel, Ellsworth, Krantz, Niefer, Matthews NAYS: NONE The MOTION was declared to be carried. Chairperson Sigel—OK, thank you. Mr. Walker- Thank you. 22 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES APPEAL of Timothy J. Moore, Appellant, requesting variances from the requirements of Chapter 270, Article VII, Sections 270-45(A)(1)(b)[10] and 270- 45(A)(2)(a) of the Town of Ithaca Code, to be permitted to construct a dock and mooring on a property located at 1028 East Shore Drive, Town of Ithaca Tax Parcel No. 19-2-16, Lakefront Residential Zone. Proposed dock is located within the 20- foot required setback from adjacent property lines as extended from the shoreline, and the mooring is located within the 30-foot required setback from adjacent property lines. An interpretation by the Zoning Board may also be required as to whether boatlifts and boat hoists are considered part of a dock structure, and thus, also subject to the dock setback requirement referenced above, or considered a separate structure Chairperson Sigel—Hello. Go ahead. Mr. Moore - My name is Michael Moore, my brother is Timothy Moore, he is co-owner of this property. I reside at 740 East Miller Road. Chairperson Sigel — Is there, do you want to begin by adding anything beyond what you submitted? Mr. Moore - I have some pictures of the type of boat lift that I'm going to be installing. Chairperson Sigel—OK. Mr. Matthews —Thank you. [pause] Is this is type of boat lift or is this the boat lift? Mr. Moore - It would be the same size, but maybe not the same brand. But it would be the same profile. Mr. Matthews —This is not the dock as it is? Mr. Moore -Not the what? Mr. Matthews —This is not the dock that's already there? Mr. Moore -No, this is a different dock. Chairperson Sigel—Anyone have any questions to begin with? Mr. Niefer— One question about this boat lift. Where you're planning to build, will it be covered, or is it going to be an uncovered boat lift? Mr. Moore - It'll be uncovered, not covered. Mr. Niefer—And is it going to be set beside the dock just like it is in these pictures, or is it going to be made an integral part of the dock? 23 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Mr. Moore- No, it will be set beside the dock and it can be removed. Mr. Matthews —Unless I'm not seeing something here, it appears that the dock is being built not on the centerline of the property. Is that what I'm seeing? Chairperson Sigel—That's true I think, at least the main part of the dock. Mr. Matthews —So my question is, why can't the dock be built off the centerline so that it doesn't impose on the other property line. Mr. Moore - With the shape of the dock being an Ell, I placed it from...12 feet from the Southern property line and 13 feet from the Northern property line. Mr. Krantz—So it is pretty much... Mr. Moore - So it's centered as best it can in accordance with the other docks there. There's not a lot of room where all the houses are lined up, so I tried to get it as close to the center of the property line from everybody else's as possible. Mr. Matthews —OK. Chairperson Sigel — I'm concerned about the boat lift being so close to the line, only 3 feet. I mean, personally I would like to see you maintain say a 10 foot buffer on each side, including the boat lift, which I think would require you to narrow your Ell shape a little bit. Mr. Matthews —3 feet? Is that 3 feet? Chairperson Sigel —Yeah, you would need 7 there, and you have 2 there, so it would be 5 feet actually. I mean I thought that the comment that was made by the county in this case was a good comment, where they... the county department of planning stated "developing structures in the water of this size and bulk that stretch beyond 50% of the shoreline frontage is out of character with neighboring properties," and then they go on to talk about incremental overdevelopment and such. They recommend that we approve no more than 50% width of the width of the shoreline, which I believe you have 46 feet of frontage, that would only be 23. I was comfortable with a little bit more than that. 46 minus 10 on each side would be 26 feet. Mr. Moore - OK. Chairperson Sigel—And given the... I can appreciate your desire for a larger dock to take greater advantage of the water, but also that is a fairly constrained area and the lots are small. 24 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Mr. Moore - The initial design was larger, so we came up with this design to conform to the code, so I could take 5 feet off of the Ell, but take it out a little bit farther then? Chairperson Sigel—Is there...? Mr. Moore- There's a square footage... Chairperson Sigel—Is there a problem with sliding everything to the south? Mr. Moore -No. Chairperson Sigel—And I should ask other board members how they feel. Mr. Krantz—What about neighbors? You're essentially land locking them. Mr. Moore- Land locking the neighbors? Mr. Krantz — Yeah, between the dock and putting the boat up on the thing there, you're stretching right across. Mr. Moore - Right. Chairperson Sigel — Well, maybe in this case it would make sense to have our public hearing before we get too far into moving things around. OK, so if there aren't any other questions for right now, we'll open the public hearing. Chairperson Sigel opened the public hearing at 7:58 p.m. Chairperson Sigel — Sir? If you want to come to the end here, that would be great. And please begin with your name and address. Mr. Thaler - My name is Richard Thaler, I own the property at 1030 East Shore Drive, and have been the owner of that property since 1973. I am here to object to the building of the facility as it is projected. I want to show you some photographs that were taken this afternoon. Unfortunately I didn't have enough time to get duplicate copies made, but I want to pass this around to you to show you the encroachment on the lake that has been done by the Moores. At the time that they got their permit, there was supposed to be rip rap only in the foundation. Instead of that, they have raised the elevation of the entire lot by 3 feet, which puts our beach 3 feet lower and subject to erosion. And I've given you pictures showing what's happened to my beach. If they are permitted to put this hoist up, not only have they destroyed the beach, they will also destroy the visibility from my porch, because the boat, when it's there is right in the line of sight and you can see it from the pictures that were taken. And I understand that Mr. Moore indicated that he talked to the neighbors and nobody objected or they were in favor. He never talked to me, not about this project he didn't, and I just... I'm reluctant to take a position this strong against a neighbor, but I have to tell you, our cottage will probably be next owned 25 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES by my daughter and son-in-law who are here, and my feeling is this was supposed to be a prize. We spent a great deal of money re-doing the cottage. The lady next door, who just passed away, Lee Lee, I supported her application to build a new house for over 200 and some odd thousand dollars. This board asked her to move, and gave her a variance to move the front of that house back away from the shore so that the visibility from both sides would not be imposed. If this is allowed to happen, whoever owns Lee Lee's house, is going to have the same problem that I have. Chairperson Sigel—The problem with visibility? Mr. Thaler- Now, let me indicate to you. You can see the size of the rocks that are in the lake, and I wonder whether the Corps of Engineers knows that there has been an invasion of the lake of about five feet by those rocks. And they also, the rocks on the north side of the property caused the erosion to my property. Chairperson Sigel — Thank you sir, for your comments. I don't think that there's really anything this board can do regarding the fill he's put in. I mean, if it wasn't allowed by his prior approvals... Mr. Thaler- It was not. Chairperson Sigel—Then the town staff should bring some... Mr. Thaler - I call that to the attention of the Code Enforcement and ask them to take whatever necessary steps are necessary, otherwise I'll do it. The Corps of Engineers is going to be notified concerning the encroachment on the lake because this is a five foot encroachment, and, on top of that, if you give them permission to put the dock in, that means that that dock will be five feet further into the lake than I'm sure that the Corps of Engineers would allow. Ms. Balestra—The Corps of Engineers actually allows 100 foot long docks... Mr. Thaler- I'm sorry... Ms. Balestra- ...before they need to have, before they have significant issues. Mr. Matthews —Could you repeat that please? Ms. Balestra — The corps of engineers generally will allow docks up to 100 feet long before they have any significant issues in this particular navigable water. Mr. Thaler- But not on top of an encroachment, that's from the lake shore. Ms. Balestra—I can't speak to the encroachment, I know there was a rip rap wall that was allowed and was approved by the Planning Board. As to whether that is what is actually being constructed on the site, I do not know, but our building department will look into it. 26 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Mr. Thaler- If I could have my daughter speak... she's also an attorney. Chairperson Sigel—Sure. Ms. Medeiros - I just wanted to add to... Chairperson Sigel—Could you just start with your name please? Ms. Medeiros - Sorry, Katrina Thaler Medeiros, I live at 402 East Upland Road, I'm the daughter to the owner of the property at 1030 East Shore Drive. Two comments: first, the way I understand the dock lift being positioned on the southern portion of the dock, you have to understand that it's going to interfere again, we have windsurfers, sailboats, things that we launch from our beach and having the dock lift on the southern portion is going to effect our ability... Chairperson Sigel—The northern. Ms. Medeiros - On the northern portion, I apologize, on the northern portion. It's going to affect our ability to continue to do that, and then also coming into shore, we're going to have to... because you have to keep in mind our dock does Ell towards the south or towards the position of the dock or and the boat lift, so it's going to create a precarious situation of us trying to navigate back to the shore. And again, the only other aspect, with the interference of the view, that obviously adds to the negative effect or impact that this proposal has on the public, and I think that's one of the factors that you're constrained to consider in granting a variance. Just a comment to Mr. Moore, had you come to us with this project so that we could have discuss its advantages and possibly work this out prior to this meeting, it would have been nice. But again, those are my two comments. Chairperson Sigel—Thank you. Would anyone else like to speak? Sir? Please. Mr. Terry - Good evening, my name's Bob Terry. I guess you'd call me an interested party. I own numerous properties on Taughannock Lake, including where I currently reside, 925 Taughannock Boulevard. It would be across the lake from all this. Just, I've been on the lake 40 years, and it used to be pretty much a catch as catch can. A lot of abuses happened in this particular situation, I know, I've been abused by neighbors and I've seen a tremendous amount of this. However, in the wisdom of the Town Planners and so on, in 2004, April to be exact, they made this new ordinance. Three feet from the property line for a dock, that's got a to be a side yard clearance, whatever you want to call it, the setback, is my understanding, is this correct? Chairperson Sigel—That's correct. Mr. Terry - And that, there's a great deal of wisdom there, because as I say, I have got encroachments on everything I own from past incidents where people have encroached, and if your deeds are like mine, people who own property on Cayuga Lake, you own 27 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES where? Not to the water line, to the mean low water mark is where your deed measures, so you are on that lake as much as 20 or 25 feet where you physically own... Chairperson Sigel—OK. Mr. Terry - So all this activity is happening not in federal watershed or whatever, it's in your own property where this discussed thing is happening here. But the importance of those setbacks is not to be neglected, the dock in itself is a pretty innocuous substance, it doesn't do a whole lot. But the activity it creates, and I think that was the intent of the 2004 ordinance, because of the activity, boats coming in and so forth was the idea of the 20 foot setback. In my opinion, a lift is certainly high a traffic commodity as a dock would be, in all honesty, maybe even more so. Most people sometimes just swim off their dock or sit there, but I think the spirit of this thing should be extended to cover lifts and boathouses as it's stated docks. The law should be amended to allow for that. Chairperson Sigel —Personally I agree with you. I think it was possibly just an oversight to not mention boat lifts. Mr. Terry - I didn't bring the Town of Ithaca letter describing this, but it sounded like that was one of the main objects of the exercise here this evening, was to establish yes, indeed, a boat lift and a boat house takes on the same character as a dock. Chairperson Sigel — Well, that is something that the board could consider tonight, although personally I would rather leave that to the Town Board to do, to just simply modify the code rather than have us make an interpretation. Because, actually, the wording is rather clear, they very clearly do not mention boat lift, yet I think the intent was probably to include it, because, as you said, it's just as much of a structure that can impede navigation as a dock. But I think it can... Mr. Terry - Thank you. Chairperson Sigel—Thank you very much. Ms. Balestra — Kirk? I'm going to pass around another aerial photo that was actually included in the Planning Board packet from this project. It's just to illustrate the other docks North and South of the proposal just so that the board can see. Chairperson Sigel — OK. Does anyone else wish to speak? OK, if not, we'll close the public hearing. Chairperson Sigel closed the public hearing at 8:08 p.m. Mr. Niefer — I question whether it's appropriate for us to consider this with the shadow that as far as compliance with the corps of engineers. If he came, I believe that the property owner should come to us, and say, with a written approval of the corps of engineers confirming that what he has done is in compliance with the restrictions and 28 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES stipulations that they have given him in all their correspondence. And perhaps for us to go ahead and take a position on this at this time with that cloud hanging over the matter may not be appropriate. Chairperson Sigel—yeah, well, he does have a permit though. Mr. Niefer — Well yes, but you have to comply with the terms and conditions of the permit. And that's the question on the floor, is he in compliance with the terms and conditions of the permits that have been issues. Mr. Ellsworth—Are you talking about the rip rap? Mr. Niefer—Yes. Mr. Ellsworth—OK. Mr. Kanter—We're also not sure whether it's in compliance with the Planning Board site plan approval of the seawall, so that is definitely something that [inaudible] objected to. Mr. Niefer—The town's site plan approval is one thing. Are you also confirming that the rip rap conforms to what the state engineers have specified and the he's in compliance with the permits that have been issued by the state for the rip rap? Mr. Kanter— The sea wall plan that the Planning Board approved was the same one that went to the corps of engineers for the permit. So, if the sea wall is not consistent, then it is not consistent with either plan. So, we don't know that. Mr. Niefer — Shouldn't we as a board have some confirmation that he has complied that he's complied with the state permit for putting it in? Mr. Kanter — Well, that certainly could be a condition of any approval you give tonight. It's up to the board, though, to determine whether you need that information before you proceed or not. Chairperson Sigel — We could for instance, if we're concerned about compliance, is condition our approval on submission to the Town of a subsequent letter stating that the wall is in compliance. Mr. Niefer — And that no further work on the dock go forward pending such receipt of that. Chairperson Sigel—We could condition the... do docks get a separate building permit? Mr. Kanter—Yes. 29 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Chairperson Sigel — So we could condition issuance of the building permit on the Town receiving such a letter. Mr. Niefer — And then of course there's the issue of centering the dock on the property too, and whether that's dealt with at this time or a subsequent time, and also the size of the dock and the lift situation, too. Chairperson Sigel—Yeah, I think we could deal with all that tonight, and decide that, and then just, as we discussed, just condition it on those factors. And as I started to say before we had the public hearing, it was my feeling that it would be a reasonable balance between the benefit to the applicant and the neighbors to require a ten foot setback including the boat lift on both sides. Which would require, which would move everything south by seven feet, and then require the Ell shape to be five feet shorter to maintain that ten feet on the south side. Mr. Matthews — I'm concerned that, I previously asked a question about centering the dock on the property line, do you recall that? Chairperson Sigel — Well, it's a matter of what you're considering centering. Are you talking about centering just the dock portion, or...? Mr. Matthews —There's a diagram right here of the property and the dock overhead view. Chairperson Sigel —Right, but there's also a boat lift and I'm talking about centering the entire...width... Mr. Matthews —I am too, I am too. Chairperson Sigel - ... and I think the applicant indicated that just technically the dock portion is not exactly centered but is substantially centered. Mr. Matthews —Not by this it isn't, can you see it? Chairperson Sigel—No, that's a, that's not a very good drawing. Mr. Matthews —It isn't? Chairperson Sigel—No. If you look at, I think the drawing overlay, the drawing prepared by Town staff overlaid on the satellite photo... Ms. Balestra — This is a little bit more accurate. The drawings submitted by the applicant, unfortunately are not to scale. So, they show a bit of a different view. Chairperson Sigel—Yeah, that's somewhat distorted. Mr. Matthews —It's still not centered. 30 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Chairperson Sigel—No, but it's not too far off. Mr. Matthews — It's got some way to go. My other question is, have you closed the public hearing? It's not closed yet, OK. Ms. Hunter- Yes he did. Chairperson Sigel—I did close it. Mr. Matthews — You did? OK. Is the Ell shape 15 foot necessary for the dock to be functional? Mr. Moore - If you want it centered, I would be willing to take 5 feet off of the Ell to move it down 7 feet. Mr. Matthews —Is it necessary to have the Ell on the dock, I'll repeat that again? Mr. Moore - Is it necessary to have the Ell on the dock? Because of the square footage requirement of the dock, we narrowed the dock to six feet going out, so 6 feet for swimming and that sort of thing, we would like a little larger space on the end for kids or anybody out there together to make it safer than just the width of the 6 feet. That's what the Ell is for. Chairperson Sigel — I don't think it's a case of strict need, but the applicant is actually doing a pretty good job of complying with the dock ordinance in most respects as far as length and square footage. Mr. Matthews — I'm merely suggesting, and it's all my authority is to suggest, if I'm a member of this board, some movement on your part to satisfy a neighbor who is less than pleased. Mr. Moore - Definitely I would be willing to take the 5 feet off. What else are you looking for? To take the complete Ell off? Chairperson Sigel —I think Mr. Moore has just indicated that he would not mind terribly moving the dock 7 feet to the South and shortening the Ell to the extent necessary to create a ten foot setback on both sides. Mr. Krantz — On the basics of need to decide right now that the lifts and the hoists are part of the dock. Chairperson Sigel — I don't think we need to because we have the authority to make whatever conditions we feel are necessary for each case, so in this case we could condition a ten foot setback for the boat lift as part of the dock approval, even though the ordinance may not, one reading of the ordinance may not strictly require it. 31 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Mr. Krantz—OK. Chairperson Sigel — But I think that the Town Board should modify that to include any other structures, not just docks as part of the setback. Ms. Brock — I don't think the Planning Board considered the boat lift part of the dock when they were calculating the permissible area. Mr. Moore -No, they didn't. Ms. Brock — They were just looking at the Ell structure, and saying that was the dock, and they did not count square footage of the boat lift in it, but that's the Planning Board, and they're not... you are charged with interpretation—interpreting the Code. Chairperson Sigel — I think it might complicate things more than it helps to make that interpretation. Mr. Krantz—OK. Chairperson Sigel—But since we can get the same effect. Mr. Ellsworth — Well, I agree with Jim, because the rip rap is out too far, then that puts the starting point of the dock out too far, out farther than it would be if that rip rap was brought back, which it could possibly be, five feet, according to the neighbor. Chairperson Sigel —Well, we're not, in this case, the dock's not a particularly long dock, so I'm not... if it's just five feet out further, I'm not that concerned about that, I am concerned that obviously what he's done as far as the wall being in compliance. Mr. Ellsworth—Well, I think we need to make that a condition. Chairperson Sigel—I agree. Mr. Ellsworth—And I would agree with what he's talking about, modifying the section in the center. Chairperson Sigel—Modifying? OK. Mr. Moore - The DEC and Army Corps of Engineers have both been notified when the completion of the rip rap wall was completed. I don't know if they have come down and visited it to survey the rip rap wall, but we both notified them that it was completed. Chairperson Sigel—OK. 32 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Mr. Moore - So whatever they do as far as follow-up should have been done a few months ago. Chairperson Sigel—OK. Mr. Moore - And I'm sure I can get something from them stating that it's installed correctly. Chairperson Sigel — OK. I mean I think in our condition we could leave it up to the director of Planning and Zoning discretion as far as what constitutes satisfactory evidence that it's installed correctly. Because you need to be satisfied that the Planning Board resolution is in compliance, so... Mr. Moore - And one other thing. When I did put the wall in, I stayed off of the northern property line three feet more than I was granted, so I already pulled the wall back towards the north, so I didn't put in as much wall as I was allowed. So, as far as, from Dick Thaler's property line, I could have gone up to it, and I talked to my excavator and told him to stay at least three feet off of his line. Chairperson Sigel—OK. Mr. Matthews — The dock going out, addressing Mr. Ellsworth's concern, as well as Mr. Niefer, the dock length going out into the lake is not of our concern. Chairperson Sigel — Well, it is within the allowance of the zoning ordinance, right, it's only 30 feet. Mr. Moore - Yeah, the square footage amount is what you have to take into account. Chairperson Sigel—Right. Mr. Moore - So, we're actually going for a 60 foot dock before, and after talking to the offices here, they recommended this shape and this square footage amount. So, I know you've probably heard about another one up the lake that you granted a 60 foot variance dock... Chairperson Sigel—I think so. Mr. Moore - So I'm keeping it as small as you're requiring. Mr. Krantz —I'm still a little confused. A 20 foot setback is normally required, correct? Chairperson Sigel—Yes. Mr. Krantz — But you're suggesting that we should modify this and allow a ten foot setback? 33 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Chairperson Sigel—That's my suggestion, yes. I mean in this case, I'm trying to balance the benefit to the applicant versus the detriment to neighbors and the community. I mean this is a narrow lot, if it was a wider lot, you know, I wouldn't be as inclined to suggest that. But, the lot's only 46 feet wide and trying to allow the applicant to get a reasonably useful dock that I think is still fairly consistent with the docks in other parts of the area. I mean some of these other docks are right on the property line, I mean I bet we can find one that's even over the property line just because people haven't been that careful in the past. So, it's my personal opinion that the 10 feet setback on either side is a fair balance. Mr. Matthews — So, Mr. Thaler is bringing up the rip rap and everything else, and it really is of no concern to us, here. Chairperson Sigel—Well, no, I think it is of concern. Mr. Matthews —With regards to what ordinance? Chairperson Sigel — Well, we wouldn't want to grant approval for a dock that was say, connected to a shoreline that was not in compliance. Mr. Matthews —But we're finding out that the shoreline is in compliance? Chairperson Sigel —We can condition approval on evidence being provided to the Town that what's been done at the shoreline is in compliance. Mr. Matthews —All right, now you're also suggesting that the 20 foot side yard setback, if that's what you want to call it, we're going to allow or think about or consider going in 10 feet? Chairperson Sigel—Yes. That's my suggestion, and anyone else is free to... Mr. Matthews —Yes, I understand. Chairperson Sigel - ...make another suggestion. Mr. Matthews —I understand what you're saying about a useful dock and so forth, but it seems to me that going 50%into the side yard setback is a considerable amount. Chairperson Sigel—It is. Mr. Matthews —It's getting kind of close. Chairperson Sigel — It is, and it's really the... the nature of the shoreline and dock installation is very irregular. Mr. Matthews —I understand that, we can't change nature. 34 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Chairperson Sigel—Yeah, and it's hard to change docks people have already put in. Mr. Matthews — So, to try and get an accommodation by neighbors and so forth. I think there's an issue here that we can't address, and that has to do with neighbors. They're going to have to work that out. All we can do is consider the appeal. Chairperson Sigel—Right, and we... Mr. Matthews —That's it. Chairperson Sigel - ...we have to determine what we think is a reasonable balance. Mr. Matthews —That's right. Ms. Brock — It might be useful for you to go ahead and make the determination as to whether the boat lift in subject to the setback requirements or not. If you determine it's not subject to the setback requirements, it's possible that with the modifications that have been discussed, that the northern setback requirements are actually met, that there are 20 feet between the dock and the northern boundary. It still wouldn't be met on the southern side, but you could then have that discussion about whether you feel the encroachment into that setback is one that is appropriate or not. So, it may be that you should go ahead and make that determination. Chairperson Sigel—Well, I was, I was hoping to avoid that. Ms. Brock—I know. Chairperson Sigel — And I don't really think we need to make that determination in this case, because part of approving a non-conforming dock, we can set other conditions that we feel are appropriate, one of which being that the boat lift be, have a certain setback. So we don't have to determine whether it's subject to setback to set a condition that it be setback. And I... Ms. Brock — I guess that depends on whether the board is inclined to grant or deny the variance. Mr. Matthews — OK, can I ask a question? It may help the discussion along a little bit, and I often ask this question, what is the basis for setback requirements? Why? Why can't you build up to the property line? Do you know? Ms. Brock — Well, the Town Board has determined through the Zoning Code that they want to have a certain amount of space... Mr. Matthews —For what purposes? 35 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Ms. Brock—For what purposes? Well, in this case,perhaps passage on the water. Mr. Matthews —Passage on the water? Ms. Brock — Right. In this particular instance here. I mean, we often have on land setback requirements, too, for light and air requirements to preserve characters of the neighborhood where buildings aren't connected one to the other, as you might find in the middle of a large urban area. Mr. Matthews — OK, so it seems to me, thank you, it seems to me that we have to consider if this boat lift imposes on those niceties, if I can use that term. Does this boat lift impose on the use of the lake or the use of the neighbors property or the visual effects of the neighbors property? Am I on the stream here? Ms. Brock—Yes, I think that would be an appropriate factor to consider. Mr. Matthews — So a boat lift is not very high, so I don't know if it obstructs much view, but it certainly would obstruct some movement of a boat, if you'll draw an imaginary line down the property line. Chairperson Sigel—Certainly, yeah, you can't drive through it. Mr. Matthews —You can't drive through it. Chairperson Sigel —And with a boat in there, it would obstruct your view I think at least as much as a dock, if not more. Mr. Matthews —Sure, but if you moor a boat along the dock, you get the same thing. Chairperson Sigel — Well, except that boat's not as high. The boat lift lifts it out of the water. Mr. Matthews —Three feet, yes? Chairperson Sigel — Yeah. Well, Susan, do you think it is important that we make that determination? I mean I was hoping to just let the Town Board choose to modify and/or clarify the ordinance as they see fit rather than have us decide what it means, I mean not that they couldn't always change it again, but I just didn't think it was critical for us to make that determination, given that we could impose... we could have, we could achieve the same effect by just imposing a condition. Ms. Brock—Well, I think it really depends on what the board wants to do at this point, if they think they need to do it or not. I had thought perhaps the way some of the discussions were going, that it might be something they'd want to know. In fact, would this proposal as the modifications have been described comply with the setback requirements or not. That might be something that you want to know. 36 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Chairperson Sigel —That's true. If you believe that the way the Code is written that boat lifts are not subject to setback, then Susan's right, then if we require them to slide it South seven feet as we have discussed, then the dock would actually be in compliance on the North side, because the dock itself would be 20 feet from the line. The boat lift would go another 10 feet. Mr. Matthews —Would be imposing in... Chairperson Sigel — Would be imposing in, but if you read the Code, let me see if I can find... it says "every pier, dock, or wharf, that is constructed shall have a minimum clearance or setback of 20 feet from adjacent property lines." That would appear to be fairly explicit, because they do, in another part of that same section there's reference to "fishing gear, docks, wharves, boathouses, cabanas, seawalls, consumer waterfront structures," so the specificity of pier, dock or wharf would appear to at least initially to exclude the boat lift since it is mentioned elsewhere and it is specifically left out here. Mr. Matthews — I'm not a mariner, I think the biggest thing I ever steered is a rowboat. Can a boat lift be put on the end of a dock? Mr. Ellsworth -No. Mr. Niefer—It's not particularly practical. Mr. Matthews —No? Chairperson Sigel—No, access to the boat I think would be difficult. Mr. Moore - Yeah, you have to get in and out of it. Chairperson Sigel—You'd have to get in and out... Mr. Moore - Over the front. Chairperson Sigel — ...from the bow or the stern. I mean I suppose to could put it across the end... Mr. Moore - I think that would be worse as far as obstructing view, you're widening any obstruction even if it's three feet, is there to keep it narrower. Mr. Matthews — I don't understand why you couldn't put a boat lift on the end of the dock when we have an Ell shaped dock. Mr. Moore - You could. Mr. Matthews —You can? 37 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Mr. Moore- I would imagine you could, but... Chairperson Sigel—You could, but... Mr. Moore - ... the end is going to be in deep also because the lake drops off there, so I don't know how you would be able to do that in 15 or 20 feet when they are put here in 3 or 4 feet of water. So I don't know if you have to do some sort of pilings to attach it too. This particular type of boat lift that I gave you a picture of is a low profile, it just sits on the bottom of the lake, it's removable. Chairperson Sigel—OK. Ms. Brock—Could it be put on the southern end of the dock? Mr. Moore - The southern side? Ms. Brock—Yes. Sorry. Mr. Moore - Probably, yes. Then we would have the same situation. Most of the docks are Ell shaped towards the south all the way up through there and they're right next to each other, and they are put on the right side of the property lines close to the neighbors property in order to do the Ell shape on most of them, then they'll lease the next two to the north of this property, that's the way they are. So I was trying to conform my dock to match theirs and even go smaller. Mr. Kanter — Also just for information purposes, I was just noticing on the drawing, the air photo drawing, the Thaler dock, although it's not scaled off, appears to be roughly 10, 11 feet from that side property line extended out as well. So if that were built today, that also would not conform with the zoning code requirements. Chairperson Sigel—The southern edge of their Ell. Mr. Kanter—Right. Chairperson Sigel—Yeah. Mr. Moore - I'm essentially putting the dock exactly where the old dock was, but angling it away from the northern property. Chairperson Sigel —Well, I mean we could debate various configurations for quite some time, but my feeling is that we have come up with what, personally, I think is a reasonable modification to what the applicant desires, that for me meets the balancing test. 38 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Mr. Matthews —Well, I understand the balance requirement and so forth, but I personally have a difficulty imposing on the neighbors by going into the setback further than we should. Five feet's nothing, but we're going in 10 feet, 50%. I think that's asking too much, I think that's imposing too much on the neighbors. Chairperson Sigel—Well... Mr. Moore - When I initially got the layout for the proposed house that I'm building here, both my neighbors properties are three feet off of my property line. When I initially requested the new structure that I'm building, I came ten feet off of each property line, so I've always consistently been aware of my neighbors needs and try to give them as much a buffer as possible, but down here all the houses are lined right up next to each other, so I just wanted to mention that. Chairperson Sigel — I mean I agree with Mr. Moore to a certain extent here in that, he is right. For instance, Mr. Thaler's dock to the north, the northern edge of that dock sits pretty close to the property line. Mr. Matthews —That was before us. Chairperson Sigel — Right, but placement of other docks has sort of created a situation where you don't have quite as much flexibility in placing future docks. And again I think that the dock is in character with what other docks are there. Mr. Krantz — Yeah, I think that cutting the setback of 20 feet in half over neighbors objections and on a property whose, we don't know if the shoreline is in compliance or not, and we're not really figuring whether we're figuring boat lifts and hoists in or not, we're really sort of driving us into an unwise decision. I know you want to be amicable and the gentleman's agreed to some modifications and such, and it would be nice to get a solution, but I'm not happy with the solution. Mr. Niefer—If we were to use the 20 foot setback, you have a 46 foot lot, if you were to have a 20 foot setback on either side, that leaves you 6 feet. And as far as having a dock with a boat lift, you can't do it. So the person then is totally deprived of their ability to use the waterfront. Is that really what we want to do to have rules that the net result is if you do that, the value of the property decreases, too. So that's a factor. Mr. Krantz—Yes, it's a definite factor. Mr. Niefer — So to some extent I think Kirk is in the right direction as far as finding a medium balance with the [inaudible] situation. Chairperson Sigel — Would you like to hear Mr. Thaler's opinion of the proposed modification? Mr. Krantz—Sure. 39 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Mr. Matthews —It would help. Chairperson Sigel—Mr. Thaler... Mr. Thaler- I'm sorry. Chairperson Sigel —Would you mind coming back and commenting on the proposal that we're considering. We'll re-open the public hearing. Chairperson Sigel re-opened the public hearing for the comments of Mr. Thaler. Chairperson Sigel — We're... Mr. Moore's application originally was for his boat lift to be approximately... Mr. Thaler- Three feet from my property line. Chairperson Sigel — From the property line, yeah. And what we're considering, or what I've proposed, is moving everything that he has proposed seven feet to the south to make it a 10 foot setback, rather than 3 feet, and I just wanted to ask you if you wanted to comment on that, if you felt that that was a significant improvement, or... Mr. Thaler - I think that's an improvement, but it's still going to be the problem or blocking the visibility, going to the south, not only of my property, but of the Lee Lee property, which is just north of mine, and of course Lee Lee is no longer with us, and I don't think anybody from her estate knows about this meeting tonight, and my feeling is if you move the dock to the south, so that it's in the center—you have the variance on the ten feet or the twenty feet on each side — and there's no boat lift, I don't have a problem... [tape is changed] Mr. Thaler - ...lift, okay, with the boat on it, is going to block the visibility of the City of Ithaca and also the west shore from porch and Miss Lee Lee's house. My feeling is there, there is no other dock facility down at that part of the east shore that has that situation. Chairperson Sigel—The dock and boatlift? Mr. Thaler—Well, there is a boatlift, but not located so that it blocks views. Chairperson Sigel—Okay. Thank you very much. Mr. Thaler—Thank you. Chairperson Sigel — Well, I think in this case that if push came to shove we might lose the argument as to whether we can actually specify the setback of the boatlift. For 40 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES instance, if we required Mr. Moore to have a dock comply in every way, say the 20 foot setbacks and he just built a 6 foot dock, he could still put in the boatlift because I don't think the ordinance specifies a setback for boatlifts. That is something that we could determine as a board. Mr. Niefer—Would a boatlift be a structure? Chairperson Sigel—Um, well it is a structure. Ms. Brock—It is a structure, but the Code says the 20 foot setback applies to piers, docks, and wharves. Chairperson Sigel — Specifically, so I think probably the intent was to apply to boatlifts, but the way it is worded, it doesn't appear to. Mr. Krantz — Well, everybody is in agreement then on the placement of the dock, both you and us and them. Now the only question is, do we have the right to determine about if there is a boatlift or not. And if not, this is all solved. Chairperson Sigel — I actually don't think we could actually. I mean, I suppose if we were going to grant any kind of variance on the dock we could condition that upon no boatlift, although I think that might be extreme, but we could if we found that was necessary to mitigate. Mr. Krantz—If that's not our right, then I don't see why we should... Chairperson Sigel —In fact under what I proposed, the dock on that north side is actually in compliance. It meets the 20 feet. Then the boatlift obviously would encroach 10 feet. Is that...? Mr. Matthews — We can't win for losing. I mean if we say no boatlift we may be violating the spirit of the law if nothing else of the ordinance since it does not prohibit boatlifts. Chairperson Sigel — Right. I mean we could attempt to make a finding where by prohibiting the boatlift was necessary to balance the dock being larger than allowed or with too small setback, but I don't think that is appropriate myself. So are you comfortable with the proposal? Mr. Krantz—Yes. Chairperson Sigel — Okay. So, Chris, we do have an environmental assessment for this. Do you want to make any comments? Ms. Balestra — I need to re-familiarize myself with it, actually. Another staff member prepared the environmental assessment. 41 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Chairperson Sigel — I actually just realized we also have to discuss the request for the mooring. The applicant has requested... Ms. Brock—The Code requires 30 feet setbacks and he is proposing to place the mooring in the center of the parcel as you extend it out from the land, which is... Chairperson Sigel — The mooring, I don't...in the section discussing moorings, it says, ,'moorings shall be placed so that objects moored to them at full swing of their mooring or anchor line will be no closer than 10 feet to the projection of the adjacent property lines," essentially the same line we have been talking about and I don't...and that 10 feet I think is an important requirement to prevent interference with or the chance of any interference with a neighboring property. So even if you center the mooring, it is 23 feet either side, you subtract off the 10, you've got 13 feet and moorings do not stay in place perfectly, you have some slop there. So you are getting down pretty much to a rowboat that you can put on this mooring and not violate the 10 foot setback. So I have a hard time understanding how that mooring could be useful to you given those constraints, unless you were assuming that you could violate the 10 feet. Mr. Moore—No. I was trying to keep it within a reasonable distance of the shore, but not go too far out into the lake. I thought that there was a requirement that you couldn't have it out from shore for a specific distance. Chairperson Sigel — Well, there is actually, but that's not what I was concerned about. I was concerned about the distance from whatever you moor to it, to the property lines. There is a requirement that anything you attach to the mooring not swing closer than 10 feet to either side line and I am just assuming that there has to be at least a few feet of play in a mooring and then you subtract off the 10 feet from the 23 and you're down to 10 or 11 feet in length that your boat could be and it is just doesn't seem like you would want to moor a 10 foot boat. Mr. Moore—That's true. I was thinking about the sailboat. So if it was reasonable to put the boatlift and the dock system in, then I would do away with the mooring. Chairperson Sigel—Okay. That addressed my concern. Mr. Matthews — I guess it can't be done, but it would be nice to have some photographs of the neighbors viewpoint, literally. Chairperson Sigel—Well, I mean, you can sort of eyeball it from the satellite photo. Mr. Matthews — Well, I don't know how high their house is. I don't know where their porch is or their shore is. That would help a great deal. Right now I am going on the trust factor that Mr. Thayer is going to have his view considerably blocked and it would help if I had actual photographs of what it would look like. 42 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Mr. Ellsworth—We have one. This is the lift in the up position. Mr. Moore — That is a different boatlift. That is just an example of what I was planning on putting in just to show the profile of it not being high. There was concern about a roof being put on it or sides or poles going up. This just sets on the lake bottom and it is almost level with the height of the dock. So it doesn't obstruct any view as far as the lift. The only thing that would obstruct the view is when you put a boat in it and lift it out of the water. Mr. Matthews —Do you know how tall the boat is? Mr. Moore — Well, it depends on what type of boat you put in there then that would determine that. Generally this boatlift is designed for a 22 foot boat. Mr. Matthews —Can you estimate how high that would be above the level of the dock. Mr. Moore—Three or four feet. Chairperson Sigel—Miss, would you like to speak? We could reopen the pubic hearing. Chairperson Sigel re-opened the public hearing at 8:45 p.m. for the comments of Ms. Medeiros. Ms. Medeiros —I just wanted to point out in the pictures that Dick Thaler submitted there is...I mean I took one of the pictures standing on our porch looking as we would towards the....(not audible)....and the riprap where I would imagine that the dock is going to extend out and look in the direction toward the inland and that is the view that really is affected. Chairperson Sigel—Okay. Mr. Matthews —Where is that? I would like to see it. Chairperson Sigel—So which one is...? Ms. Medeiros explains picture to the board. Chairperson Sigel — You can see the stake in the ground there where the property line ends. Ms. Medeiros —Exactly. The other point that I would like to make is, we need windows to look that way as well...(not audible). Chairperson Sigel — So if you can try to estimate 10 feet over from the stake that is in the photo and project out that is approximately where the boatlift will be and the dock would be 20 feet over. Any comments? It's a little hard to tell. 43 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Mr. Matthews — On one hand I am not crazy about imposing and if you move the dock over you are less imposing on that side yard setback. Looking at this photograph and trying to picture a boat being lifted there over the winter or something like that, I don't see the view as being tremendously obstructed because if you are looking at 180 degrees as your view, as it were, it looks like they are imposing 10 or 15 percent of that view field. That is all. I would hope that the neighbor would be accommodating in that regard. Chairperson Sigel — Okay, if there are no further questions or comments, I will move in regard to the appeal of Timothy Moore to make a negative determination of environmental significance for the reasons stated in the Part II Environmental Assessment form prepared by Town Staff. Second? Mr. Ellsworth—Second. Chairperson Sigel—All in favor? Board—Aye. ZB RESOLUTION NO. 2006- 039 : ENVIRONMENTAL ASSESSMENT Timothy J. Moore, Appellant, 1028 East Shore Drive, Town of Ithaca Tax Parcel No. 19.-2-16, Lakefront Residential Zone. MOTION made by Kirk Sigel, seconded by Harry Ellsworth RESOLVED that this Board, in regard to the appeal of Timothy Moore, makes a negative determination of environmental significance for the reasons stated in the Part II Environmental Assessment Form prepared by Town staff. The vote on the MOTION resulted as follows: AYES: Sigel, Ellsworth, Krantz, Niefer, Matthews NAYS: None The MOTION was declared to be carried. Chairperson Sigel — I will move to grant the appeal of Timothy Moore requesting variances from the requirements of Chapter 270 Article VII Section 270-45A1b subparagraph 10 of the Town Code to be permitted to construct a dock on the property located at 1028 East Shore Drive, Town of Ithaca Tax Parcel Number 19.-2-16, Lakefront Residential Zone with the findings that the requirements for an area variance have been satisfied: specifically that the benefits sought by the applicant cannot be achieved by a 44 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES different means, that there will not be an undesirable change in the neighborhood, that the request is substantially encroaching 50 percent of the setback and that the alleged difficulty is not self-created, that weighing all those factors that the benefit to the applicant does outweigh the detriment to the community. And with the following conditions: that there be a 10 foot setback both to the north and the south for all structures proposed by the applicant including the boatlift, which would mean that the boatlift must be setback 10 feet from the northern property line, the dock itself may be then 6 feet and that the L extension must be setback a minimum of 10 feet from the southern property line and that accepting those modifications that otherwise the dock and boatlift structure must be constructed as indicated by the applicant, with a second condition that the applicant must present to the Town prior to issuance of a building permit for the dock and boatlift, evidence that the applicant's permit with the DEC for the riprap wall has been complied with and also a determination by the Director of Planning that any requirements from the Planning Board regarding that wall have also been met. Susan, anything you would add or change? Ms. Brock—I think you had also discussed dropping the mooring. Chairperson Sigel — Yeah. I guess we could maybe just note as a finding that the applicant agreed to withdraw his application for a mooring, for a mooring variance. Anything else you would suggest? Ms. Brock— I don't know if this will have to go back to the Planning Board of a modify approval there so I think another condition should be that if deemed to be required by the Director of Planning... Mr. Kanter—No, if required by the thresholds in Section-whatever in the Code. Ms. Brock—270-45, oh, for modification. It is not 270-45. Mr. Kanter—I'm hoping it doesn't, but you're very well possibly. Ms. Brock — All right. So I think we should have another condition that if deemed required as specified by the Zoning Ordinance that the applicant receive modified approval from the Planning Board. Mr. Kanter—It would be site plan and or special permit. Chairperson Sigel—Okay. Ms. Brock — Do you want to have any conditions about the appearance of the boatlift itself in terms of walls, roofs? Chairperson Sigel —We have a condition that the boatlift have no roof structure, no side walls, that it be essentially as indicated on the photo submitted by the applicant. 45 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Mr. Matthews —You can use the photo as part of the motion? Chairperson Sigel—Yeah, that it be essentially as shown here. Second? Mr. Ellsworth—I'll second. Chairperson Sigel—All in favor? Board—Aye ZB RESOLUTION NO. 2006- 040: Timothy J. Moore, Appellant, 1028 East Shore Drive, Town of Ithaca Tax Parcel No. 19.-2-16, Lakefront Residential Zone. MOTION made by Kirk Sigel, seconded by Harry Ellsworth RESOLVED that this Board grants the appeal of Timothy Moore, requesting variances from the requirements of Chapter 270, Article VII, Section 270-45 (A)(1)(b)[10] of the Town of Ithaca Code to be permitted to construct a dock on a property located at 1028 East Shore Drive, Town of Ithaca Tax Parcel 19.-2-16, Lakefront Residential Zone. FINDINGS: The requirements for an area variance have been satisfied, specifically- 1. pecifically:1. The benefit sought by the applicant cannot be achieved by a different means; 2. There will not be an undesirable change in the neighborhood; 3. The request is substantial, encroaching 50% of the setback; and 4. The alleged difficulty is not self-created, that weighing all those factors, that 5. The benefit to the applicant does outweigh the detriment to the community. 6. The applicant agreed to withdraw his application for a mooring variance. CONDITIONS- 1. ONDITIONS:1. There be a 10 foot setback both to the North and the South for all structures proposed by the applicant, including the boat lift, which would mean that the boat lift must be setback 10 feet from the Northern property line, the dock itself may be 6 feet wide, and that the Ell extension must be set back a minimum of 10 feet from the Southern property line, and that excepting those modifications, that otherwise the dock and boat lift structure must be constructed as indicated by the applicant. 2. The applicant must present to the Town, prior to issuance of a building permit for the dock and boat lift, evidence that the applicant's permit with the DEC for the rip rap wall has been complied with, and also a 46 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES determination by the Director of Planning that any requirements from the Planning Board regarding that wall have also been met. 3. If deemed required as specified by the Zoning Ordinance, that the applicant receive modified site plan and/or special permit from the Planning Board. 4. The boat lift have no roof structure and no side walls, and that it be essentially as indicated on the photo submitted by the applicant. The vote on the MOTION resulted as follows: AYES: Sigel, Ellsworth, Krantz, Niefer, Matthews NAYS: NONE The MOTION was declared to be carried. Chairperson Sigel—OK, thank you. Mr. Moore—Thank you. APPEAL of Michael Pinnisi, Appellant, Burke Carson, Agent, requesting multiple variances including from the requirements of Chapter 270, Article VII, Section 270-41 regarding number of permitted principal uses, Section 270-47(C) and (F) regarding side yard setback and minimum setback from the shoreline, and Section 270-48 regarding maximum building area. Variances are also being requested from Article XXV, Section 270-204(A) and (C), Section 270-205 (A), and Section 270-206(C) and (D) of the Town of Ithaca Code regarding non- conforming uses of land and structures, to be permitted to build an addition to a partially demolished lakefront structure located at 891 Taughannock Boulevard, Town of Ithaca Tax Parcel No. 25-2-15, Lakefront Residential Zone. Chairperson Sigel — Good evening, if you could just begin with your names and addresses for our records. Mr. Pinnisi—My name is Mike Pinnisi and my address is 520 Cayuga Heights Road. Ms. Anderson—My name is Paige Anderson and my address also is 520 Cayuga Heights Road. Chairperson Sigel — And if you want to say anything before we get started here, if you have anything to add to what you have sent us or any comments you would like to make? Mr. Pinnisi —Yes. Thank you. I will try to be brief with the comments, but there is one thing that I would like to add. A couple of things to add. First, in terms of comments, I hope its been clear from our submissions that what we are hoping to do is enhance the 47 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES shoreline where we own the property by putting it back into the same condition it was in for generations, for decades and in fact to make it better. What we are hoping to do is to improve that cottage by making it conform in terms of style and condition to the surrounding cottages, which are all done in stone and cedar shingle with white trim, like New England seacoast cottages. We have been successful in restoring 2/3 of the property. It has been universally acclaimed that what we have done is very beautiful and has enhanced the neighborhood and we hope to do that for the third parcel down by the water. It is currently an eyesore and it is a shame because it is potentially a very attractive property. That particular building because of the topography doesn't trouble anyone. It is nestled against a slope. It doesn't affect anyone's view of the lake, view of the water. I believe that the planning report had some misunderstandings about the project thinking that we are going right up to the water line and thinking that we are making a bigger building than we are. So what I would like to add is a reference actually to the record of this own body's paperwork, from the 2002 application for Mr. Newell. I know technically I don't need to add this to the record because it is already in the public record, but I do want to draw your attention to the plot plan that was submitted in June of 2002 that showed the existing structure and I am sorry I only have the one copy because I dug this out just today, but it shows that what we are proposing to build is more than 20 feet back from the shoreline and that the encroachment is only 3 feet on the existing building. It otherwise is not encroaching and not otherwise requiring a variance that I am aware of. In terms of the use, we are propose an extremely modest use. Oh, I'm sorry. I forgot to add one thing. The diagram also shows that we are several feet back, not only more than 20 feet from the shoreline, but several feet back from the seawall, which is itself back several feet from the water. We are within, for the most part, the existing footprint of the building, in fact, we propose a more modest building than what had been there for decades. As we noted, I think very clearly in our papers, we are a much more modest proposal than what this very board approved in 2002, not only for the lakefront property, but for the entire parcel. The one other piece of information that I want to add is that I was able to contact the bank's appraiser this morning, Mr. Gary Bucci, and he was not able to be here tonight, but he did say that he agreed that the waterline parcel is essential to creating a value of the property. That the bank will declare our financing in default if we don't get to improve the property down at the waterline and he said he would be happy to support this...these findings as necessary as this board may require. So I am looking forward to the opportunity to answer any questions that you have with concerns about the project. We had thought it was quite a modest thing that we are trying to just put one room back where it had been for years and years for use as a seasonal guest cottage. There is a planning report that came out against was quite a surprise for us. We are hoping that that position may change now that there is more clarity about the limited scope of what we are hoping to do and I invite your questions,please. 48 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Chairperson Sigel—Well, I will begin just by saying that it took me quite a while to get a grasp around all of the issues regarding this case and I had to go back and look at what we did with Mr. Newell and the discussions we had with him and what was approved with him and what was not approved and all that. Four of the board members in total were on the board when both of Mr. Newell's applications were made so we are pretty familiar, but to help me and also to help the other board members I made up a sheet of paper, which I am happy to give you as well, indicating sort of trying to summarize what I see as the events that have gotten us here. Maybe we could just take a minute while everybody reads it. So we can begin by discussing anything I mentioned here or anything any other board members want to begin with. Mr. Pinnisi—Mr. Chairman, if I could add a couple of points? Chairperson Sigel—Sure. Mr. Pinnisi —Mr. Newell's application also asked for a use variance to include an office in addition to the residential uses. He also proposed excavation and construction on the slope. He also proposed expanding the volume of the property down at the shoreline by increasing its height and its square footage by putting a deck over the top of the roof, which would have increased the square footage of that property by approximately 40 percent and the volume by about 25 percent. We are proposing none of those things. So we see what we are offering here as a very minor subset of what was carefully reviewed and approved four years ago. Unfortunately Mr. Newell did not follow through on what was approved properly and so we return to discuss the issue again, but this time without the issue of expanding the upper cottage, without excavation or construction on the slope, without any office use that would increase traffic and congestion and change the nature of the neighborhood, and without expansion of the property down at the shoreline. Chairperson Sigel —I'm not...Jon, do you remember if...I don't think a home office was a use variance in the old ordinance, was it? Mr. Kanter—No. It wasn't. Chairperson Sigel—I think that was by special permit or special approval. Mr. Kanter — Yeah. As long as it conformed with all the size and types of uses that would... Chairperson Sigel—I think his proposed home office was not a use variance. Ms. Anderson — That is correct, but I believe there was a concern about traffic volume and parking issues. Chairperson Sigel—There was. 49 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Ms. Anderson—So that is why we are bringing up the home office. Chairperson Sigel — There was definitely...I mean we were concerned with traffic and such with the whole proposal in its entirety and certainly that included the home office, but my concern here is that through these events you have arrived at the need for a use variance, which is a very difficult test to meet. I haven't discussed this with other board members yet, but my personal feeling is that you don't meet those criteria. Mr. Matthews —For a use variance? Chairperson Sigel—For a use variance. I mean the crux of the whole thing is that you are looking to restore a residential unit, essentially. A structure that can support living, which call it what you will, a separate residence or residential unit, whatever, you are looking to restore something that has a kitchen, a bathroom and living facilities. In the Town, in this zone, there is only permitted one of those. One structure. You can have the second dwelling unit in a structure, but you cannot have two structures. You already have two structures and you are requesting a third. The goal of any zoning ordinance when it declares things to be nonconforming is to bring those things back into conformance and the mechanism for that is when something lapses, as according to the criteria that then the use expires and you now obviously need a use variance and I just don't...I have a hard time with that for a third dwelling unit in an area that only allows one and where even having two is rare, having three...I don't think any of us are aware of any that have three. Mr. Pinnisi—I would like to address that if I could. Chairperson Sigel—Please. Mr. Pinnisi — What you describe I don't take issue with, but what I do say is it is the larger purpose of this board to preserve the character of the neighborhoods by the use of the zoning ordinances. It is not to apply a vision application of the rules, rather that is why you have the power and the discretion to grant variances when it is wise to part from the strictures of the rules in order to work the greater good. For this particular parcel, we have demonstrated that there is no economically feasible way to keep the small cottage atmosphere that has persisted on that stretch of the lake since before any of us in this room were born. There is economic pressure to be tearing these things down and to be putting up very large structures. In fact, 100 feet to the north of where we are is a lot where a modest cottage was torn down and a monster house was built. I don't know how many thousands of square feet it is, but it is thousands. It is the most prominent building on our end of the lake. That is destroying the character of the neighborhood. I was very taken by Ms. Balestra's report at the last page where it talks about the impact of accumulated approval of large nonconforming structures or expansion of existing structures that the existing cottages are being demolished and replaced with two and three story year round residential homes. If we don't have a variance here, I would like you to take a look at what is going to happen to this lot. When you take the side yard setbacks, 50 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES it doesn't leave a lot of room in the middle. What you would end up having is a two or three story structure, which goes right up the middle of the lot, starts at the edge of the hillside and goes back kind of long and skinny and two to three stories tall. You take down all of the buildings and you can now build a structure that is at least 3,000 square feet, put a big parking area up on there and what does that do? It takes out at least four structures and replaces it with one large one and it encroaches on the view of the neighboring properties. They now no longer see north or south as well as they have before where what I am talking about doesn't encroach on anybody's view. Now the worse scenario is that one of the neighboring lots gets combined with this lot. Now you can build a 4,000 square foot structure or 4,500 square foot structure and you have lot five little cottages. What we have demonstrated to you is the only way to avoid that is to make it economically feasible to continue the small cottage use structure. I'm very self-conscious about making these points because when we bought this place, you know what the realtor told us? They said that these are tear downs. You have to tear down these little cottages and then you can put up your big, beautiful new home. We looked at them and said these are quaint, cute little old places and wanted to keep them and restore them. We did and we did at great expense, but now what we have found is renting them out at the top of the market is a losing proposition. We have shown two different things about economic and feasibility. We have showed first that the value of the parcel has declined. We bought them a year ago and put over $50,000 into improving the two upper cottages and we got rewarded with an assessment that dropped the value by $20,000. So I have lost $70,000 already trying to renovate the upper two cottages. Chairperson Sigel — But I believe that was part of a countywide adjustment. My property, which is no where near this property, also was reduced. Mr. Pinnisi — It was reduced, but what I am saying is the effect of putting $50,000 into fixing...I don't know if you put $50,000 into your place, but that meant something to me and it counted for nothing. I also put soft costs into planning for the rest of...architects and engineers and landscapers, etc and that all counted for nothing. So the value of the property itself is not going to meet the mortgage if the third property is declined. I also demonstrated that it is losing on a cash basis. It does not support its debt and taxes, saying nothing for maintenance costs or utilities or whatever and certainly nothing for a capital improvement budget. It is a losing proposition. The way you turn all of this around and make it a self-sustaining property is to restore it to a three-unit use. That was the testimony of Christopher Agagnost to this board in 2002. He was foresighted. He was right. It cannot be done economically without having a third unit otherwise it is loser. So when I looked at the criteria for use variance and the very first one says that applicant cannot realize a reasonable return as shown by competent financial evidence, I have shown it the only ways it is possible to do it, a decline in absolute value and a loss on a cash basis. There is no argument before you that this is an economically sustainable model as it is. What you are saying is, we need to tear this down and put up one large house because the two cottages just don't support value. Its gets sold, it gets combined and it gets knocked down and turned into something bigger. 51 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Mr. Krantz—What is the size of your lot? Mr. Pinnisi—It is 21,000 square feet. Ms. Balestra—The most recent information that we have is that is was 19,272 square feet plus or minus. Mr. Pinnisi—Sorry. That is right. Thank you. Chairperson Sigel—So 18-7? Ms. Balestra — There is a bit of a discrepancy with the actual size of the parcel. I have seen numbers that say 18,700 square feet. I have seen numbers that say 19,272 square feet. So it is approximately 20,000 square feet. Mr. Krantz—You are allowed 20 percent coverage? Ms. Balestra— 10 percent coverage. The old zoning ordinance, which was in effect in the 2002 proposal allowed a 20 percent coverage. The zoning ordinance was updated to include this lakefront residential zone and in that the lot coverage was reduced to 10 percent lot coverage. Mr. Krantz—So even if you built one house, it could not be more than 1900 square feet. Chairperson Sigel—With the footprint. Mr. Matthews —How long was this old building down by the shore there. When was it built? Chairperson Sigel—In approximately 1920. Ms. Anderson—That is our best understanding,right. Mr. Matthews —Is there a provision for grandfathering that replacement? Chairperson Sigel — There is and the ordinance says that if you demolish a structure or part of that structure that you have to rebuild it within one year and this was demolished in the fall, I believe of 2002. Mr. Matthews —Part of it was taken out. Mr. Kanter—Well the use was discontinued for a year. Mr. Matthews —So was it vacant for a year? 52 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Ms. Balestra—At least. Mr. Matthews —Is that what it was meant to be? A residential unit? Ms. Balestra—It was. Ms. Anderson—It was occupied at the time Mr. Newell made his application. Ms. Brock—So it was a nonconforming use, but it was allowed. It was grandfathered in. the problem here is that that nonconforming use was discontinued for more than a year when the building was partially demolished. Nobody has lived in it for well over a year. I mean it has been a number of years now. So under the zoning ordinance if you have a nonconforming use that ceases for a period of more than one year any subsequent use of the land must conform to the current regulations. They lose the automatic right to be able to have that building be a dwelling at this point. That is why they need the use variance at this point. Mr. Newell didn't need a use variance so his proposal was considered under some different standards by you back in 2002. He needed a special approval and the criteria for a special approval are different and not as stringent as the criteria for a use variance. Mr. Matthews —It's stringent now, you said? Ms. Brock — The use variance criteria are more stringent. It is harder to meet. For example, we have just had some discussion about whether there can be...where the development can realize a reasonable return and what the case law says under that is that the applicant needs to show that no permitted use of the property would afford the applicant a reasonable return. You don't look just at the existing use, but you look at any use that is permitted under the current zoning and you have to make the determination that they can't get a reasonable return from any permitted use. That is the first prong of the use criteria. Mr. Pinnisi — And my point is that the only way to get that would be to go to the site, demolish everything and rebuild with a 2,000 square foot house that isn't going to be worth the cost of buying the lot, demolishing the building and putting up something half that size. So you cannot do a conforming use that is going to be economically feasible. Chairperson Sigel — I don't think its also...its not necessarily fair to argue that you are not getting a reasonable economic return simply because you have negative cash flow. You could buy any number of homes in this area and not be able to rent them for what your monthly expenses are. Mr. Pinnisi — That's why I make both arguments. It is losing on a cash basis and it is losing on an absolute basis, also. You can buy rental properties and say well I'm losing on a cash basis, but I get a tax deduction, I'm getting appreciation and so forth. Well, I'm not getting an appreciation. I'm getting negative appreciation... 53 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Chairperson Sigel—That's just one year. Ms. Brock—I thought your application said that the value went up to $295,000? Mr. Pinnisi—It went down by $20,000. Ms. Brock—But that was at 90 percent valuation. Mr. Pinnisi—Right. Ms. Brock—I thought you have a number in here of$295,000 as the current value. Mr. Pinnisi —What I did is I took the 90 percent and I did the calculation to say what is the 100 percent valuation and it is 295 and the 295 is less than the 285 that I spent to buy the parcel plus the $55,000 that I put into improving it. So it is a net loss of over $50,000 in absolute value in the year and there is no prospect for it to change other than I wait for the whole market to go while I'm continuing to lose money, over $1,000 a month every month hoping that the value of the property comes back up to have it break even. In a conforming use, the economics would be worse because what you have to do is combine into a single building the dwelling structure which imposes additional demolition costs and additional construction costs just to end yourself up in the same place. Mr. Niefer —At the time you purchased this property, were you intending to have it as a rental property only or were you going to move there and live in one of the units and rent the other two units? Mr. Pinnisi—What our intention was and still is, if we are granted the approval, is to take the two upper cottages and rent them out to visiting faculty and students, and then the third parcel down by the parcel we would renovate and use it for ourselves as a guest cottage. We have a primary residence elsewhere and this would just be a guest house. Mr. Niefer — When you say use it as a guest house, do you mean that you are going to...(tape flipped) Mr. Pinnisi - ...use that lakefront property as a primary residence. Mr. Niefer—At the time you considered purchasing this, did you consider anything there to be your primary residence? Mr. Pinnisi—Not in the short term. We think that we may eventually use the upper place as a primary residence, but not in the short term. It won't fit. We've got children and its only 600 square feet or so. Mr. Niefer—When you embarked on this evaluation of purchase, did you have any CPA, architect or engineer or other consultant come on board to advise you with regard to cash flow situations, cost of rehabilitation and any of the other upgrade costs that relate to this 54 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES project. Did you get any summary of all the costs that are associated before you purchased the property? Mr. Pinnisi —Yes, I did. We did get those calculations and they assumed the restoration of the missing room on the lakefront property and based upon those calculations it came out as a positive. Mr. Niefer—What was the total cost? The rehabbing, and upgrading to get everything in a situation where all three could be rented? Mr. Pinnisi — The estimate that we got from...that is reflected in the mortgage, which came out to... Mr. Niefer—Is the mortgage $350,000? Ms. Brock—No. Its $390,000. Mr. Pinnisi — It is $390,000 approximately and we also are not within that...it came to $389,569 and we are not going to be able to make that number. The actual costs is going to be above that number. That figure assumed approximately $45,000 to restore the property down by the waterfront. The estimate that we have gotten is over twice that. So we are actually short that number. Mr. Niefer—But going into this project, the estimates for rehabbing the property, did you get good figures or just guestimates from someone? Mr. Pinnisi—We got good figures for most of the cost. We did not have good figures for the lakefront property because we needed to get approval. What we did with that property, we contacted the Planning Department and spoke with Mr. Frost and asked if there would be any difficulty to put back the room that used to be there. Mr. Niefer — Have you been involved in acquiring any other rental income properties in the Ithaca area so that you know the market? Mr. Pinnisi — I have some experience, but I am far from an expert. We're...the only other rental property that I got in the Ithaca area is that I bought a house for my sister to live in while she was moving here. She couldn't afford the rents for apartments so I bought a modest house in the northeast and said here you can could rent this at cost from me. That is my experience as an investor. I'm sorry if I am naive about this stuff, but that is about it when it comes to investment real estate. As far as this particular property goes, once I got word that I would be able to restore that property down at the waterline and I took the rough contractor estimates that I had, I said that this will work. With that third unit, I've got use and value that will push this over the top. Mr. Matthews — Could someone on the board, since I am the only member that wasn't here at the previous discussion I don't have any biases or prejudices if they are there, I'm 55 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES not saying there are...what is the difference between today and what you approved or what was approved by the board back when Mr. Newell received his approvals? What is the difference? Chairperson Sigel — Once difference is that Mr. Newell was combining two of the units into one. So he was going to reduce the number of dwelling units from three to two. Mr. Matthews —How was he going to do that? Was he going to build a hall between the two buildings? Ms. Balestra—Right. He was going to connect the two with a breezeway or something. Mr. Matthews — Basically he really wasn't changing the architecture of the site with a hall. Chairperson Sigel —He was, actually. It was sort of an underground tunnel, I think. To be honest, I never fully understood it. Mr. Pinnisi — I have the pictures here and I would be happy to explain. What he was proposing to do is you take a pretty steep grade and what he was proposing to do was excavate into the shale and to create an underground passageway to connect these two parcels, digging down to cut into the hillside and then to create this. The idea being up on top that instead of having discrete small cottages that there was going to be a series of terraces that were going to come down. Some of the building underground, some of it exposed and some of it with decking on the top with a net increase of over 1,000 square feet of footage for those two properties and dig into the hillside. The lower property, you can see, was going to stay the same in terms of the footprint, but he was proposing to raise the roof and put a deck on. Mr. Matthews —Today, you are not doing anything with the upper structures? Mr. Pinnisi—Correct. It all stays the same. Mr. Matthews —So given that... Chairperson Sigel —Under the conditions when Mr. Newell came, what he needed...the criteria he needed to meet was called a special approval because the zoning ordinance at the time required simply a special approval to alter a nonconforming use and a nonconforming structure, not a use but a structure. What he had...the buildings had various nonconformities so what he was doing counted as just a modification of a nonconforming structure and that was by special approval, which is a fairly...I don't want to say easy test, but it's easier. Mr. Matthews —But he never did it? 56 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Chairperson Sigel — He never did it. It was a very ambitious project and it never got anywhere. Mr. Matthews — So what you have today is Mr. Pinnisi not even concerned about the upper two structures. Chairperson Sigel—No. What he has done is renovate them in place. Mr. Matthews —And that's done? Chairperson Sigel—That's done. Mr. Matthews — What he is asking us to consider is to in essence renovate the lower building. Chairperson Sigel — Well, what happened was Mr. Newell destroyed part of the lower structure. Mr. Matthews —I know that. Chairperson Sigel — When that was not part of his approval and that is a nonconforming structure so once that portion was destroyed, the right to rebuild it lapsed after one year. Mr. Matthews —Okay, but you said here that he was allowed to make minor alterations to the lower building and repair damage. Chairperson Sigel — That is what his representation of what he was going to do to this board was. That he was going to make minor alterations to the lower building and blah, blah, blah. And that obviously is not what he did since destruction of the building is not a minor alteration. Mr. Matthews — So to recap again, to go back so I don't lose track of myself, he is not bothering about the two buildings up above, we are really concerned about the building down below by the waterline. Chairperson Sigel—Right. Only the lakefront. Mr. Matthews —And it has been there, you estimate since 1920 or thereabouts. Chairperson Sigel—I think to the best of our knowledge, yeah. Mr. Matthews —What is changing in the neighborhood by rebuilding that footprint? Chairperson Sigel — Well, I would argue that he neighborhood has changed around it. I mean the Town Board through the...presumably through the desires of local residents has made an ordinance that states that you can only have one residential structure on a lot and 57 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES this would create...the rebuilding of this building would create a third residential structure on this lot. Mr. Matthews —But there are already two on there. Chairperson Sigel—Right. So it already has twice as many... Mr. Ellsworth - This would be the third. Mr. Matthews —They're not making them get rid of one of the two. Chairperson Sigel — No. As long as you continue to use the structure you maintain the nonconforming use. You maintain the right to continue to use it, but the only mechanism the Town has for trying to bring properties into compliance is when the use is discontinued for one year or the structure, in the case of a structure, if it is demolished and then is not rebuilt within one year. Mr. Krantz - ...difficulties of parking problems, which is a whole another ballgame. Chairperson Sigel — For me, it really comes down to the fact that a use variance is now required and I personally do not feel that they meet the tests. There are four tests for a use variance. As you can see on the blue card, there is reasonable economic return, hardship not being unique, not altering the essential character and the alleged hardship cannot be self-created. Mr. Matthews —The gentleman has spoken to the financial situation and he claims that he is under some economic duress. Chairperson Sigel—He has, although I would argue... Mr. Matthews — We don't have a competent financial advisor here, but some of them aren't competent either. Excuse me for my humor. The requested variance will not alter the essential character of the neighborhood and I would argue that the third structure is already there. Ms. Balestra—The third structure is 75 percent gone. Mr. Matthews —Okay and they are not going to change the footprint. Mr. Pinnisi—I disagree. Mr. Matthews —It has been there. It has been there since 1920. So lets forget about the change in the ordinance and so forth you are not really... Ms. Balestra—You can't forget about the change in the ordinance. 58 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Mr. Matthews — For this point. You are not changing or altering the character of the neighborhood. You are imposing on the ordinance, but you are not changing the character of the neighborhood. Different point. Mr. Ellsworth — Well, you are because it's a residential zone and you are talking about three rental units. Chairperson Sigel — Three units on a lot is essentially a multiple residence zone, not a single family zone to have three residential structures on one lot. Mr. Matthews —But it has been that way. Chairperson Sigel—That is true. Mr. Matthews —So he is not changing the character of the neighborhood. Mr. Niefer — You forfeited your right to rehab that third unit by reason of the fact that more than a year has gone by and the property hasn't been used for the purpose of rental. I mean it's the statute. Chairperson Sigel—As Jim points out, the right to the use has expired. Now the question is, do we allow a third use where there are only now two permitted. Mr. Matthews — That is the direction I am arguing. I am trying to slip in here on the change of the character of the neighborhood by saying, disregarding for the moment for the argument the ordinance, the neighborhood is not being changed. Chairperson Sigel — We could go to other points. I mean you have to meet all four criteria. Mr. Matthews — I'm trying. And the alleged hardship has not been self-created. Obviously he has not created the hardship. Chairperson Sigel — Well, no, obviously...my understanding of case law is that by definition they have created the hardship because by purchasing a property and in this case, possibly paying too much, you have created the hardship. If they can't...if you do accept the fact that you can not receive reasonable economic return then it is because one year ago they paid too much. You have to make these arguments before you buy a property. You have to make these arguments as a condition of sale, not buy it and then say...well, every other person on the lake could say that they want two or three residential units because it will increase the value of my property. Mr. Pinnisi — Yeah, but they could only get that if they had the properties there previously. If I could address some of these points that have come out because I do have disagreement about the facts. That building has not been destroyed. It is not 75 percent destroyed. It was a one bedroom house or cottage, whatever you want to call it. What is 59 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES still existing is the kitchen and all of the electrical system, all of the plumbing system, two different bathrooms, a bedroom, a deck, all that has been taken off of it is the equivalent of like a sunroom or an extension where you just put a glass box that has no plumbing, almost no wiring, no structural load. It is just there to create some living space. So to say that 75 percent of the house is gone, I don't think is a supportable statement. The house is still there. Ms. Balestra — With all due respect Mr. Pinnisi, according to the survey that you gave, the existing building is 350 square feet. That is physically...when you look at the property you see a portion of a building that is 350 square feet according to your measurements. You want to add an additional 540 square feet. So you are correct. It is not 75 percent gone, but if it is a 900 square foot building and that is the original footprint that you are building on that is... Mr. Pinnisi —You are measuring it only by square footage. The idea of when you try to build a house, what you spend money on is what is there. Okay? The structure is there. The plumbing is there. The wiring is there. The underground plumbing is there. The septic system to pump the sewage up is there. It has electricity. It has got everything. All it doesn't have is a sunroom stuck on it. Ms. Balestra—That is going to be 66 percent larger than what is existing. Mr. Pinnisi—It doesn't have to be 66 percent larger. Ms. Balestra—I don't want to argue this. Physically speaking... Mr. Pinnisi — Please. I didn't interrupt you. Please. It doesn't have to be 66 percent larger. It can be whatever this board says that it will be. The idea is, I don't need to have it be the same footprint. I was told before I purchased the property that if I stayed within the footprint I would be approved. I wouldn't even need a variance. If you want to put a condition on this that it is going to be a smaller building, I don't have any problem with that. Okay? But the idea of killing the existing building that is there and all it needs is to be told you can go ahead and live in it, I take disagreement with that. As far as the issue being do you allow a third use on the parcel, my view is very...is what Mr. Matthews has been saying. I am not changing the character of the neighborhood. I am keeping the character of the neighborhood. And you are not being asked to approve anything other than extending the amount of time that is allowed to restore a structure that has been existing for 80 years. You don't have to go and say we are going to do everything, we have to recheck everything on the property. I disagree with the way that the issue has been framed. You don't have to do all those things. You just have to decide whether I get a variance to extend the amount of time to do what you approved for Peter Newell for that one building. That is a lot easier to bite off than what is being talked about here. As far as the hardship, I created it? That over looks an important fact. My due diligence on this project included coming to the building department, pulling the file to look at the public record on this building. I looked at what had been approved previously and I 60 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES checked with the Director of Planning Department and I said can I do this and he said yes. Mr. Kanter—No. No. No. You didn't speak with me about that. Mr. Pinnisi—You were not here at the time. Mr. Kanter — I was here at the time. You spoke with Andy Frost, who was the Director of Building and Zoning, who has since retired and he gave you, apparently in your statement a verbal comment. There was nothing in writing indicating that you could do what you say you could do. Mr. Pinnisi —He said he couldn't give a written opinion about a project that didn't exist yet. Mr. Kanter—Exactly. Mr. Pinnisi—What more could I do before I bought the property? Ms. Brock—But you did look at the files that were here at the Town? Because Mr. Frost has a letter dated February 11, 2003 to Mr. Newell stating that you have demolished part of the building, that is not in compliance with what the ZBA had authorized you to do, and before you do anything else on this, you are going to have to go back to the ZBA for either an interpretation or a modification. Didn't that ring any alarm bells for you that perhaps if there were to be any further work on that lakeshore building that there might be some need to come back before the ZBA? I mean that is what Mr. Frost put in writing to Mr. Newell. Now you are saying you thought you didn't need to come to the ZBA for anything based on some statements that Mr. Frost made to you, but if you looked at the file then you probably saw this letter that does say in writing that further action is going to be needed by the ZBA. Mr. Kanter — Did you also look at the new zoning ordinance when you bought the property? Mr. Pinnisi — I knew that the property was nonconforming. I was aware of that, but I thought that in light of what I seen approved, in light of what Mr. Frost said to me and what my common sense told me, it didn't seem to be much of a stretch at all. I'm trying to make something better here and I'm trying to stay within what has been there forever and what Mr. Frost said to me made perfect sense. That I might have to come back and ask for something if what I was trying to do was to do the entire grandiose project that he was talking about. I had no intention of doing that. So when he said that the little bit that I was planning to do would not require a variance I thought that made perfect sense and I went with it. Ms. Brock — His letter did not deal with the whole project. It only dealt with the lakeshore dwelling. 61 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Mr. Pinnisi—But his approval was for an entire project, it talked about. Ms. Brock — Well the ZBA gave the approval. He didn't give the approval. The ZBA gave the special approval. Mr. Pinnisi—Right. Ms. Brock—It wasn't Mr. Frost's approval. It was the ZBA's approval. Mr. Kanter — Also, apparently the part of the house that was demolished was done without a demolition permit so that was counter to the Town's regulations as well. Chairperson Sigel—To me there is a substantial difference between the situation with Mr. Newell and now and that comes down to the tests that we are required to apply to the situation and the special approval test is not a stringent test. It is somewhat similar to an area variance, where it is a balance and at the time the board voted to approve that. Part of it was a negotiation with Mr. Newell. Part of it was reducing the number of residential units from three to two. Now...and you stated that all you are really asking for is an extension of time to rebuild, but we don't have that mechanism available to us. The ordinance does not permit an extension of time after 18 months. It allows 12 months to rebuild and then if you need more time you can come and request more time, within an additional six months you have to appear, and then the criteria that we will use is an area variance criteria, which would not be as hard to get to get the extension for more time to rebuild. But, that has long expired. We don't have that option and the use has expired. For me, that is the crux. I mean we have talked some about area variance criteria here and maybe there you have a little better argument, but you can't build a structure if it is illegal to use. So you have to get over the use variance criteria first and I don't see it. Mr. Pinnisi — Well, let me ask you something. Mr. Newell's plans were approved and they were never built. They have not been built by anybody for years and the reason they have not been built is because they don't make any economic sense. Nobody in their right mind... Chairperson Sigel—Mr. Newell had some problems in his life is what I understand. Mr. Pinnisi — I didn't buy the property from Mr. Newell. I bought it from Pamela Johnston and she had plans to put one big house on the parcel and she abandoned those plans and the house went under contract to somebody else. He broke the contract because he could not find an economically way to develop the property. It was marketed to me as a teardown, sir. They said there is no way to keep the cottages there. They said that you have to knock them all down and put up a big house and that is how you make economic sense out of the property. This board would be proving them right if you deny this proposal because the only way to make a conforming use that will have any economic sense there will be knock down all of those cottages and put up one big glass house. The worst part about it is, the best economic pressure will be to consume one of 62 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES the lots to the north. If you look at the tax map, you will see that the property to the north was actually subdivided at some point, turned into two smallish lots where the houses are both crowded on the property. The smart thing for a developer to do is buy my parcel and to buy one of those parcels to the north, knock down four cottages, put up one big house. It is not economically viable to do a single family house other than knocking down all of those cottages. Mr. Newell's plan of digging into the hillside is prohibitively expensive. It would have enormous environmental impacts and nobody in their right mind is going to do it. So when you say we are going to put a conforming use on this site, what you are saying, in effect, tear them all down. And that is Mr. Matthew's point. That that is the opposite of preserving the character of the neighborhood. So I urge you... and its actually the Planning Department's own concern. What we are looking at here is applying a rigid reading of the rule in order to bring about what we all fear, which is to tear down, three, four, maybe five existing structures to put up one. Then what is the character of the neighborhood going to be like? How are you going to resist the next application for the next big box when 100 feet to the north there is that giant thing that looks like a cathedral and then there is going to be one big one on this combined lot and then the next person is going to say, let me put up my next big house. I am trying to preserve the character of that neighborhood by doing the most modest thing possible. All you have to do in order to do that and say, yeah, this is pretty unusual, three uses, but when you put all those three uses together, it is like one bedroom here and two bedrooms here and it functions the same and is actually a lower density use than houses on either side of the property. And if you want to impose conditions on me, I am fine with that. If you want to say that thing by lake can't be used as anybody's primary residence that is fine. If you want to say that it can't be as big as I wanted it and you have to shrink it down, that is fine. If you want to say that if it is going to be occupied it can only be by a single resident. I'm okay with that, too. I just say that we have to put a property down there or else they are all going to go. Mr. Kanter—I don't know if anyone from the public wanted to speak, but there is a letter from Carolyn Greenwald and Adam Schaye that does address the issue of the character of the neighborhood and you might want to take a look at that. Its part of the public record because they do contend that reconstructing that house would change the character of the neighborhood. That is consistent with what the Planning Department memos, despite the applicant not agreeing with our statement of facts. That is what our memo indicates. Mr. Pinnisi —I received that letter just today. It does thank me for the efforts I have put into cleaning up and restoring the property. It says that the structures were in bad shape and the property is vastly improved and I am to be commended for my efforts. What I am telling you, if you gentlemen... Mr. Kanter—Excuse me. Has the Chair recognized you speaking? I was addressing the board asking them read the letter, not having you read certain parts of the letter that you wanted them to hear. If you would let them read the whole letter, they will see what the letter says. You don't have to tell them what it says. 63 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Mr. Pinnisi —I would be delighted. Actually, my concern was that all you did was point out that he was concerned about changing the character of the neighborhood. Mr. Kanter—No, what I pointed out is that they should read the letter. Chairperson Sigel — Okay. Okay. Okay. Lets let the board members read the letter and then Mr. Pinnisi you can make any comments you would like about the letter. Mr. Pinnisi—Thank you, sir. Mr. Krantz — I have a couple of comments. First, one is addressed to you, Dick. You made a big point about that third criteria. That third criteria, requested variance will not alter essential character of the neighborhood. It refers to today. Not to last year, not to ten years ago, not to history. It refers to what it is now. Okay? And the neighborhood, the essential character of the neighborhood is that it is zoned for a single residence. Period. We are not talking about what was grandfathered in before. The second thing is you are talking about three houses versus one house. There is a real parking problem there. Do you think you are going to have as many cars in three houses as you have with one residence? It is an unsafe parking area there. Do you acknowledge a parking problem? Mr. Pinnisi — If I could address...do I acknowledge a parking problem? I acknowledge that it is not optimal and it could benefit from improvement, however, I point out that it has adequate spaces and it has four to five parking spaces currently and although the driveway is steep,it has not been changed in 70 years and nobody has had a problem with it. I also point out that in the 2002 application, when it was being looked at for both the upper cottage being expanded and the lower cottage being restored and the middle cottage being permitted to have an office use, this board found no problem with parking. It expressly found that the parking is adequate and we quoted that both from the Planning Department's memorandum and this board's finding. Mr. Kanter—That's not quite correct. Ms. Balestra—Can I speak to that actually? Mr. Krantz—There is a thing in here that says it is dangerous. Mr. Pinnisi—That is from the 2006 report. I was quoting the 2002 report. Ms. Balestra — I have both EAFs that were done because the original proposal was actually in 2001 and there was an environmental assessment done then and that environmental assessment stated that with having three residences on the property, parking appears to be severely lacking. Besides the two stall garage, it appears that only one or two vehicles would fit in the driveway. The neighboring house also appears to use this driveway. So that is the original EAF done for this proposal. 64 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Mr. Pinnisi—What document? Chairperson Sigel — I think she is reading from the EAF for Mr. Newell's first appearance. Ms. Balestra — Then the one in 2002 that you referred to, you are correct in saying...it still says that with the possibility of two residences because it was a revised proposal and a home office on this one property, parking appears to be severely lacking. He states the same thing. You are correct in saying that on the next page he does sort of contradict himself where it says, it appears that the parking may be adequate for the residences since all three residences have previously been rented at the same time. Mr. Pinnisi—That is what I was referring to. Ms. Balestra— But I just wanted to point out that there are two other places in the EAFs where it does state that the parking is severely lacking. One of the things that staff wanted to know is that there is a two stall garage currently on the property, but it is filled with storage. It is not utilized as parking and then as one suggestion that we had, and I know we are not doing the environmental thing yet, but one of the suggestions that could possibly alleviate at least the parking issue is to utilize the garage. Mr. Pinnisi—Sure. Ms. Balestra—And it's not right now. As far as the driveway going into the site, it may have been that way for 70 years as many of the other parcels that have been that way, but it is still a danger and it is still a significant safety issue and it would only need, I think, minor improvements and that is the only thing that we would be asking for, is to make it a little bit more level. On a site visit I was trying to get out of there and I had to go into the northbound lane with visibility completely obstructed in order to get out into the road. It is scary. Mr. Pinnisi — Yeah. It's not great and if we get the third parcel, the lakefront place approved, I will be happy to upgrade the drive and the parking and so forth, but it is currently cost prohibited. I am already out tens of thousands of dollars. I am happy to improve the property to continue improvement. We can put the garage back into use. I'm not going to let anybody park in there until a structural engineer has inspected it. Ms. Balestra—That is probably a good idea, too. Mr. Pinnisi—So I don't want anybody parking in there if it's not safe, but I don't want to spend money on a structural engineer, suring it up, etc, because the parking is perfectly adequate for two units. It has been rented out for the past year and not a word, not a complaint about parking or driveway access. If I have the additional room in the valuation of the property, I would be happy to say that we are going to smooth out the entrance and to either improve the garage such that you can park in it or take it down and make it all one big parking area. Either way we can get additional parking on the site and 65 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES we can get a safer drive. The only thing stopping that is criterion one on the use variance, which is, is this economically feasible. So that is why...I really...I hate the idea that there has been sort of an argument that if tone in points here. I would like to think that we were on the same side here that what I would like to be doing is working with you all to say how do we save this portion of the neighborhood from being a tear down and having some developer come in and put a big new garage right up by Taughannock Blvd with one of those big giant walkways that goes to a big giant glass house and that is what the future looks like to me and I don't like it. I am a former member of the Board of Historic Ithaca. I donate to INHS and I believe in saving old buildings when you can and that is what I am trying to do here. I can't continue to throw tens of thousands of dollars at this project that just keeps losing on me. I am not a wealthy guy like that and this project has to stand its own feet and it's not. The way to make it work is to say I get my cottage down by the waterfront, when graduation weekend comes, I get to take some money from folks who want to go there for a weekend and for the other times when people come for commencements and other functions. Then to use it modestly for ourselves to give some value for all of the investment. That is really what I am looking to do and if that requires a little improvement to the parking or driveway, fine. If it requires shrinking the size of the building fine, but just don't kill that third building because that kills the whole project. Chairperson Sigel—Any other...? Mr. Matthews —I think we are repeating ourselves a little bit. Chairperson Sigel—Shall we open the public hearing? Mr. Matthews —Sure. Chairperson Sigel—We will open the public hearing now, sir. Did you want to come and speak? Please begin with your name and address. Mr. Terry — I am Bob Terry. I live at 925 Taughannock Boulevard and I happen to own 893 Taughannock Boulevard, which is next door and this property is to the north that we just referred to. I would like to make one correction. The blue herron got the hen's nest, Doctor Lam's property. That was a forever wild property owned by the Odd Fellows to be forever wild and Doctor Lam put the McMansion on it. There was never a tear down there. That is the property that is 100 feet to the north. Mr. Newell was a dreamer. Mr. Newell showed up in my living room with these plans and density is part of what it is all about. Peter Newell was turning it essentially into a one house operation. The lower cottage was to be his guest house and the other two buildings were to be together. Sure he was adding some space, but he was the one that was going to use it all. There was no economics about it. That was his place. He was going to be there. He barely tore that place up and turned it into a junkyard when he got engrossed into a project up on University Avenue. He gutted a big house up there. I don't know if he did the sprinklers in it already...in any event, Mr. Newell, personal circumstances, one thing let to another, lost the vision. Andy Frost told me personally that it is over with. While Peter still 66 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES owned it he got so involved with these other projects that he just let that time slip away. At least a couple of years went by and Andy told me personally, this is it. There is no way he is ever going to build that back. He has done it. So that is the story with Mr. Newell, but Mr. Newell's claim to fame, if you look in the file you will find a letter from me supporting Mr. Newell to this board because he came with this beautiful idea of decreasing the density, which was fantastic and I supported it totally. Mr. Matthews —Any reference to this appeal? Mr. Terry—Mr. Newell's. Mr. Matthews — No. You are not commenting about any reference to this gentleman's appeal. Mr. Terry — Not really. I'm trying to put what was previously approved in proper perspective. It seems like it is being used as a lever to say well that was approved so maybe this should be approved. I feel it should be put in proper perspective what Mr. Newell was trying to do. Mr. Newell was dreamer. He was an architect and he had some nice ideas and he was going to do it, but like some nice ideas he didn't carry through. That is the end of the story with Mr. Newell. Mr. Matthews —Again. My question is what does that have to do with this appeal? Mr. Terry —Well, it seems to be a spring board to where we are now in saying well, that was approved, so this should be approved. That's why I am making the connection. Mr. Matthews —And what would be wrong with that logic? Mr. Terry—Well, it was all about density. He was decreasing density. He, in effect, was making it a single place. It was just for his use. He was having a guest cottage and one house. That is what was approved before. The idea of some kind of a greater degree of nonconforming use had been conferred by this board in that is why I am feeling that and that is not true. It's absolutely not true. Chairperson Sigel — You are stressing the point that there was the reduction from three units to two, even though there was an addition of space, there was a reduction in the units. Mr. Matthews —Exactly what? Chairperson Sigel — There was a reduction in the number of distinct units because of the connection of the two. Mr. Pinnisi —But one of the units was replaced with an office. I don't see how that is a decrease in use. You go from three units to two units plus an office. It actually increases traffic, it increases the need for parking because he was going to put an architecture office 67 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES there. So clients were going to come in and out and even that parking concern was found to be no problem. So I don't think the logic is flawed to say that if we are going to go from three units to two units and an office back to three units that we are asking for anything unreasonable here. Ms. Balestra—I have to say that I wouldn't say that it was deemed that parking wasn't a problem and I wasn't there then, but I would say that it was stated that it was severely lacking,just no one seemed to make a big deal about it. Mr. Pinnisi—It didn't prevent a project. Mr. Krantz —Not to beat a dead horse, the packet we were given has pictures here and it says existing conditions, which is today. The entrance to 891 Taughannock Boulevard is unsafe. The driveway slopes considerably. There is almost no visibility existing and going south. Additional residencies and or vehicles will exasperate safety and traffic as is. If that isn't conclusive, I don't know what more you can say. Mr. Matthews —Yeah. I don't want to argue... Mr. Krantz — And how we can even sit here and consider this with a report like that is unbelievable to me. Ms. Brock — Well Mr. Pinnisi did say that he would be willing to smooth out the driveway entrance and make modifications to make that safer. This board can, if it grants the variance, impose conditions and that could be one of the conditions. Mr. Matthews —He said it now. He was very clear. Ms. Brock — Right. He said it tonight that he would be willing to do whatever needs to be done. Chairperson Sigel—Not to discount... Mr. Ellsworth—We need to finish the public hearing. Chairperson Sigel — Okay. That is a good idea. Did you have anything else you would like to say, Mr. Terry. Mr. Terry—No. Chairperson Sigel—Okay. Thank you very much. Sir, did you want to speak? Mr. Carson—My name is Burk Carson. I was agent applier and would be a builder of the now addition to the structure on the lake. I am actually more back as an observer, just watching what is going on. What I saw when I went down there was this was, in effect, building back what was the character of the community and I think that I would argue 68 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES that what we are talking about in the character of the community is not just what is here today. That would be a legislated character of the community, not what it actually was and not as it actually exists. By building something back there, it is putting it back into an original state. Mr. Matthews had asked what has changed. The change is time and a completely new zoning law. The situation, the physical situation is no different from it had been for 80 years and the structure sits back on the property. It doesn't get in the way of anybody's view and I'm pretty...I'm usually pretty much in tune as a builder with whether something is going to create a problem or not and although I know I have been on jobs in the Town of Ithaca and I know in some cases it is more difficult than working in other places, but I just looked at it logically. I went, oh, yeah okay, we'll build a room back there. I understand and this comes down to definitions and times and your four conditions, but it is a miscarriage if you judge on those factors alone. Thanks. Chairperson Sigel—Thank you. Mr. Niefer—Just one question. Are you appearing on behalf of the applicant? Mr. Carson—Yes. Mr. Niefer—You are being compensated by the applicant for your expert opinion? Mr. Carson—No, well, it's hard to say. He has paid my company money to prepare plans for this building. So, yes I have an economic interest in it. My comments weren't really related to that, though. I wasn't paid to appear. Chairperson Sigel—Thank you. Mr. Pinnisi — If I could address Mr. Krantz's parking point very briefly. The parking conditions that you are concerned about, sir, they are feeding a minimum and will continue to feed minimum of three different dwelling units. If this site is reduced to one dwelling unit that will be one and there is also a right-of-way over my property to two other parcels that are to the north. I don't have any obligation to change the drive to any of those units. Currently as things are configured it is feeding four different dwelling units. I am saying make it economically viable, give me a fifth, I will improve the parking and the drive access and it will be to the benefit of five separate households. So if you really are concerned about access to the drive and the parking adequacy, I believe that argues in favor of granting the proposal, not against it. If you vote against the proposal, there is not economic incentive and no legal obligation to change that access. Mr. Krantz — You mentioned a good deal of money that you have spent already fixing things up. Don't you think that safety might have been one of them? Mr. Pinnisi — Safety certainly is. To my knowledge, sir, nobody has had an accident coming in or out of that driveway ever, in 80 years. So I don't think safety is an issue. 69 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Ms. Anderson—I would also like to point out that that issue of unsafe driveway or unsafe parking has never been raised before this board before. Not in either of the Newell applications. The first time we ever heard it was now. Mr. Pinnisi—One week ago. Mr. Krantz—That is in the report that we get. That is where I can tell. Mr. Pinnisi—I understand that, but it is a problem that has been identified as a hazard that is going to prevent the project that has not been complained about in the last 79 years and was not raised as an issue when this was being talked about as an office, when people who are unfamiliar with the drive are going to be coming and going as customers of an architecture firm. All we are talking about here is residents who are going to be very familiar with how to navigate that driveway. So it was actually more unsafe when it was approved in 2002. Ms. Balestra—It probably should have been raised as an issue. Mr. Kanter — I'll just make a very brief comment and that is I think the applicant is misrepresenting comments that the Planning staff in the environmental assessment form. These were issues that were raised that we would raise in any proposal. The fact that it may not have been adequately addressed in past proposals is irrelevant to bringing up a safety issue today. These issues were for the board's consideration. They were not saying these issues alone should cause the board to disapprove the action and I just don't appreciate a lot of the misstatements that the applicant has made in his letter about the Planning Department Staff. [tape is changed] Mr. Kanter - ... in his words, which he tries to counter our words, so you could have arguments back and forth. Basically, we did what we do with any proposal... it's for the board's information I'm asking. Chairperson Sigel —Right, right. Just a technicality, I want to close the public hearing at this point, for the record. Chairperson Sigel closed the public hearing at 10:12 p.m. Chairperson Sigel—I mean, if it makes you feel any better, I don't consider a lot of these issues, like parking, some of the other things that have been raised, erosion and such, I don't consider any of those to be show stoppers. As you pointed out, those are all things that can be solved, you can improve the driveway, you can institute controls for erosion, you can do all sorts of things to mitigate a lot of the things that the planning staff has found potential problems with. 70 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Ms. Balestra—That's actually what the staff is recommending. Oftentimes, when there's something that is — if we don't have enough information to give a recommendation, we will say we are not going to make a determination of significance, we want to see more plans. And with all due respect, the construction plans or the site plans that you submitted to us don't show several, ten, twenty feet from the property line from the sea wall, so we are basing our recommendations on the plans that have been submitted. Mr. Pinnisi - I'm sorry, that was a sketch by Mr. Carson. What he showed is that we're going within the existing footprint. And that's the diagram he gave. When you put that with the site plans that are in the record, you see that the existing footprint is several feet from the sea wall and about 30 feet from the waterline, OK? So I guess the diagram was misleading, and that's why I wrote in my letter, I wasn't trying to mis-state anything, Mr. Kanter, what I was saying is that the information appeared to flow from a misunderstanding that we were going against the sea wall. We are not. So I apologize if our materials were not clear, but we are not going against the sea wall, we are thirty feet from the water line or more. Ms. Balestra — And that would be something that we want to see more detail on, before we could recommend. And actually the building department will want to see those documents anyway. Mr. Pinnisi - OK. Chairperson Sigel — But for me again, the problem is not... I mean these are largely issues that would mitigate an area variance, which obviously you need to rebuild the structure. My problem again is with the use variance, and unless we can get past that, then discussing all these other issues are pointless. Mr. Pinnisi - Agreed it's a point of law, and that's why we tried to address each of the four points for a use variance. Chairperson Sigel —And I appreciate, I mean, I'm happy to say that you put more effort into it than almost all other applicants in the past who have requested a use variance, and I commend you for that, but that doesn't change the fact that I disagree with you on pretty much every point. To my knowledge, and our Town attorney can correct me, if she thinks I'm wrong, but purchasing a property and then claiming that you're not getting a reasonable economic return, having just purchased it, that's by definition self-created. You paid too much if you can't get a reasonable economic return from your property. Ms. Brock — Well, I guess I would look at the self-created hardship prong a little differently. The courts have said, if you purchase property, knowing it's non-conforming with what you want to use it for, and then you apply for a variance, you've created the hardship. And I believe that's the situation, here, I believe you said earlier this evening that you did know when you bought the property it was non-conforming... Mr. Pinnisi - Yes. 71 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Ms. Brock — So I think that the courts would find that the hardship here has been self- created. Mr. Pinnisi - I knew it was non-conforming if I was not permitted to continue with the approval that had been granted before, with the understanding... in other words, if I wasn't able to just build on the footprint that the previous structure had, I knew that that would then make everything non-conforming. Chairperson Sigel — I mean the sections in the ordinance for discontinuity for non- conforming structures and uses, I think is pretty clear. Mr. Pinnisi - It says it has to be done within one year. Chairperson Sigel—Yeah. Mr. Pinnisi - But it was my understanding that getting an extension of that time would not be difficult, at least that's the way I inferred Mr. Frost's remarks. Chairperson Sigel — My reading of it, actually, is quite the opposite, I don't think we're even permitted to entertain such an extension beyond the 18 months, because there's no listing of any criteria by which we would apply to the decision, so without any specification of which criteria to use, I don't think we're permitted to even consider it. Which of course, is why we're at the use variance. Mr. Matthews —You mean once the 18 months, I think it is you said, are up, that's it? Chairperson Sigel — Well in the case of the structure, you have a year in which to re- build, and if you don't, you have up to an additional six months to come before the board and request an extension. Mr. Matthews —And then does the ordinance say that it's dead forever? Chairperson Sigel — And then the ordinance doesn't say anything else, which would indicate that there is no other option for extension. Ms. Brock—I think this was governed by the old ordinance at the time... Chairperson Sigel—At the time, yeah... Ms. Brock—and it says that "unless work has commenced in accordance with the special approval, within one year from issuance of the building permit authorizing such work, or within 18 months of the granting of such special approval, whichever is earlier, the special approval shall expire, and the permissible uses and construction on the property shall revert to those in effect prior to the issuance of such special approval." So I think the operative period was 18 months from when the special approval was given. 72 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Chairperson Sigel—Right, for special approval. Ms. Brock—And then when that period ran, that approval expired, there I don't think was any mechanism under the old ordinance to then apply for an extension of that time. The ordinance has some procedures, but the old one didn't, for the special approval, I'm talking about. Mr. Matthews —Does it then say there can be no more appeal for a special approval? Ms. Brock—It's expired...and I don't think there's a mechanism... Mr. Matthews —That's all,just that it's expired? It doesn't say you can't? Chairperson Sigel—It doesn't say you can't reapply. Ms. Brock — He could reapply. He could come back to the ZBA with another application. Chairperson Sigel — But that's not the mechanism. There's no special approval for this type of... Ms. Brock — But he didn't, and then the problem was that there was a discontinuity in use... Mr. Matthews —I understand. Ms. Brock—So the right to use the property as a dwelling then expired. Mr. Matthews —But there is room for appeal for another consideration. Ms. Brock — To come back, well as here, to come here, although now we're operating under the new ordinance because this application came in after the new ordinance was in effect. That went into effect April 1, 2004. Mr. Matthews —So the applicant is following the game, as it were? Ms. Brock—Right, he has the right to come, and that's what he's done, and is asking for the variances, the use and area variances. Mr. Matthews — So with respect to you, Kirk, you say you see no mechanism to get back into the consideration, when in fact... Chairperson Sigel — Well, no, I said I see no mechanism to allow extension of the time permitted to rebuild by right, which would have been an easier test. 73 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Mr. Matthews —But we can grant a special approval. Chairperson Sigel—No, we can grant a use variance. Mr. Matthews —OK. Chairperson Sigel — Yes, I'm not saying it's impossible at this point, I'm just saying the mechanism is different. Mr. Matthews —All right, now my question is going to be, how can we do that? Chairperson Sigel —Well, you have to find that all of the criteria, one through four, for a use variance have been met, and if you believe that they have been, then you are obligated to vote in favor of the proposal, and if you think that any of them are not met, then you are obligated under law to vote against it. Mr. Matthews — I appreciate that. Now there was a point brought up that this situation was self-created. Chairperson Sigel—That was my opinion, yes. Mr. Matthews — OK, if the applicant in good faith, in good faith, proceeded ahead based on information he received from an official of the government, and that official being Frost's comments, and the applicant assuming that Mr. Frost's comments had value, then he didn't self-create a darn thing. He self-created an assumption, and it's a reasonable assumption. If I speak to Jonathan Kanter today and he resigns tomorrow, today he was an official of this government. And it's reasonable for me to assume that Mr. Kanter is speaking in his official capacity when he talks to me. Chairperson Sigel—I would agree that it is... Mr. Matthews —I mean in business that happened to me a lot, I get nailed to the cross. Chairperson Sigel — I would agree that it is not an unreasonable assumption, however, it is not a legal basis to use even a written opinion of an officer. I mean, the bottom line is, you have to meet the law, and even, there have been cases where Code Enforcement Officers have issued incorrect opinions, that people have used to build things, and then, upon challenge, those things have been torn down. Mr. Pinnisi - But that's mixing two issues. Mr. Matthews —But we're not dealing with the appellants lawyer-lawyer conversation. I don't know what this gentleman does for a living. Chairperson Sigel—He's a lawyer. 74 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Mr. Matthews —Maybe he is, maybe he isn't... Mr. Pinnisi - But I'm sure not a real estate lawyer. I don't know this stuff, and I'm not sure I want to anymore. Mr. Matthews — It's that we have leeway, and we've done a lot of leeway here on this board. Chairperson Sigel —I would agree with you that we certainly do have leeway, more so in area variances and special approvals. Obviously you are free to form your own opinion, but I feel that we don't have a lot of leeway in the case of use variances. Mr. Matthews —Well, I'm relatively on the board, and I understand that. Chairperson Sigel — To change a use that the Town Board has decided for a district, I think, is a very significant step, and in this case the use was three times what the Town Board has decided is appropriate for this zone, and with this cessation of use, it's down to two times the number of dwelling units, and my opinion is that that's enough, and that getting the third would change the character of the neighborhood as a single family residential neighborhood, and I feel that the hardship is not unique, in that there are other properties in this area that would certainly wish to increase their value. Owners in the area that would want to increase their value by adding more units, but they're not permitted to, and so on. Mr. Matthews —Well, obviously we could probably argue the point and certainly I could but I won't. Let's go to a vote, I think. Chairperson Sigel—Does anyone else want to make any comments? Mr. Krantz—We've ignored this letter from the neighbors to the south. Chairperson Sigel—Did everyone have a chance to read it, we could take a moment to let everyone read it. [pause as the board reads the letter] Chairperson Sigel—Any comments? Mr. Krantz—It speaks for itself. Chairperson Sigel —I had promised Mr. Pinnisi a chance to address anything in the letter that he wanted to. Mr. Pinnisi - Yes, thank you. I did just receive the letter moments before we began this hearing. I am surprised that Mr. Schaye did not speak with me about it in advance, because I know Mr. Schaye and I work with him regularly. The letter contains some 75 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES factual inaccuracy, where he says that there's no other properties right by the water. We included with our May 3 submission, a copy of the tax map, which shows that there's actually several buildings right down by the water in our portion of the lake. There are in fact, it's about a third of them I think, or there's a lot of them right down by the water there. It's a historical artifact that there are lots of properties there. Also Mr. Schaye points out that he likes the fact they I've improved the property where I have, wants me to improve the property down by the waterline, but then doesn't want to deal with the economic reality of what that will require. What I'd say is that I'm happy to accommodate Mr. Schaye's concern, wish he were here to discuss it with us, I'd be happy to address his concern by doing the things that he talks about, about improving the site, if the variance is approved. Which he does say, if the variance is approved, we'd like to see that there's landscaping and other improvements to the area. That's fine, I'll do that, and that seems to be something that would address his concerns. His property is nowhere within the site line of where this building is going to be, and I note that the other neighbors that are to the immediate north and south to me are not complaining about this. They've actually told me that they supported it, I'm just sorry that I couldn't get them to come here this evening. I also note that the property to the immediate north of me, if you look at the tax map, is divided into two separate parcels, and so there are actually two units right next to me, so if we want to talk about the density of the area, it's at least two units on parcels that are similar sized. So, the factual predicate that he's talking about here is wrong, and the impact that he's complaining about will not be felt by him, the people that he says are going to feel that impact are not here complaining. And, I think what he really wants, with all the thanks that he's giving me for the improvements to the property, and the requests that conditions be put on the approval, is that he's looking for me to further improve the waterfront, which I'm happy to do, as long as the variance is approved. Which Mr. Schaye says he doesn't really object to strongly. He says, if you approve, make him improve the site. Fine, I'll do that. Mr. Ellsworth — Well you've kind of misconstrued some of his statements. He says he wants the building down by the shore torn down. Mr. Pinnisi - That's clear enough. Mr. Ellsworth —And he's complaining about the previous owner and some of the things he did that spilled over onto his property. Now, you mentioned that the adjacent owners are not here. Did you go and explain your proposal to the adjacent property owners? Mr. Pinnisi - Yes, I did. Chairperson Sigel—Well, Mr. Terry... Mr. Terry - I never met you in my life. Mr. Pinnisi - He's not adjacent. 76 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Mr. Terry - My phone calls to you for cooperation on snowplowing [inaudible] and you never even call me back. Mr. Pinnisi - I don't even.... I've talked to the people who live on the parcels, I've never met this gentleman before in my life. He says he owns several properties up and down the lake. I never spoke to him, I spoke to the people who live there. And actually as far as the plowing goes, I do the plowing, I pay for the plowing, he pays no contribution toward the plowing. Mr. Terry - [inaudible] Mr. Pinnisi - So, I don't even know if he's talking about the parcel that's adjacent to me. I pay for the plowing. I pay for the plowing as a courtesy to the people who live next door to me. I pay to plow their driveway too for free. I don't know where this comments coming from. The people that I talked to on either side of the property, they are, like Mr. Schaye's letter, the portion that's favorable to me, saying that I am supposed to be commended for what I've done. The people who live to the north and south of me have commended me for what I've done, and they said we'd love it if you'd fix that mess down by the waterfront, we have to look at that eyesore everyday, please fix it. And I said I will if I can. Mr. Kanter — Mr. Chair, if we're selectively reading, why don't I selectively read the last... the bottom of page 1 where he says "our final concern is that the property not have three rental properties. This is a residential area and next to our full-time home." That also addresses the character issue. Mr. Pinnisi - Everybody's read the entire letter... Mr. Kanter—Thank you. Mr. Pinnisi - And I don't appreciate the tone. Mr. Kanter—I don't appreciate your tone either, so we're even. Mr. Pinnisi - No, we're not even sir, you're a public official, and I'd appreciate that you comport yourself in this proceeding. Chairperson Sigel—OK. Mr. Pinnisi - I'm not asking for there to be three... Mr. Ellsworth—That's enough. Mr. Niefer — I have one observation. The claim has been made that it is necessary to rehab this lakeshore property as an economic hardship, because the lakeshore property is not in rentable or usable condition. I find it a little bit puzzling that his intended uses for 77 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES the Lakeshore property is as a guest house for people to come. That doesn't necessarily generate any income. Occasional family use, that doesn't generate any income. He's told his neighbor allegedly that he's going to use the property for family use, that doesn't generate any income. So how is this rehabbing of this piece of property going to result in improved cash flow and relieving him of economic hardship? Through his own testimony in comments he hasn't projected any annual rental income for this property. So, his argument that it's economic hardship, it appears that he's going to put more money or wants to put money in it, but the net result is he's not going to have any more cash flow to help his economic distress. So, it becomes a question of merit, but I certainly am not in favor of rehabbing the lake property at all by reason of what counsel has said, what Kirk has said, and so on and so forth. The time to rehab it is expired, and so it's in my view not a property that I would vote to allow to be repaired or replaced or whatever. Chairperson Sigel—OK. Any other? Ms. Anderson - The answer to your question, Mr. Niefer, is that the way that... for us to be able to have a lakefront house is to have a property that we can rent out other units. That's the only way we can afford it. That's our dream, we want a lake house, we can't afford it without renting the other units. If we only have two, we can't afford to use it, we have to rent it, in order to make it economically viable for us. Mr. Pinnisi - We also can get pretty substantial income from very short term rentals. The rates of return during graduation weekends are unbelievable to me. You can pick up like $1000 in a weekend, and you can do that on more than one occasion. And so with very light use, we can pick up a very large percentage of the annual cash loss. And then in terms of value, you spoke just in terms of cash, we get value. If there's a parcel down there that I get to use that I say my guests can stay there, I get value for that. If I can stay there with my wife and my children on occasion, I get value. And so there's two different ways to look at economic hardship. One is what is the place worth, and the other one is what does it cost. Both of those things are alleviated by putting a third unit down there, and it doesn't hurt anybody. Chairperson Sigel — Any other questions or comments? OK, if we're going to make a motion to deny, I don't think we have to address the environmental assessment, is that true? Ms. Brock—Let me look at the law, at the regulations. Chairperson Sigel — I think in the past that has been the recommendation of other Town attorneys, while I had never verified that it was correct. Ms. Brock—I have my regulations. Let me find them. [pause] 78 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Mr. Krantz—Will that be easier to make? [inaudible] Chairperson Sigel — Yeah, at this point we couldn't make a negative determination of environmental significance without, essentially receiving more information from the applicants regarding the proposed project. Ms. Balestra— The board could make a determination of significance either way. That's your authority... Chairperson Sigel—Right, but it's not really... Ms. Balestra—But staff wouldn't recommend it without additional information. Chairperson Sigel — Right. Well and even making a positive declaration wouldn't be relevant to the use variance criteria. Ms. Balestra—Right, right. Right. Ms. Brock — Well, the SEQR regulations say "no agency involved in an action may undertake, fund, or approve the action until it has complied with the provisions of SEQR," so I guess the question is then if the motion is to not approve the action, do you have to comply with the provisions of SEQR. Ms. Balestra—I don't think so. Chairperson Sigel—It would seem nonsensical to go through... Ms. Balestra — Right, if you're going to deny it, why make them go through the environmental? Chairperson Sigel - ...making a denial that's not related, especially to environmental conditions. Ms. Brock—Jonathan, have you looked at this issue before? Mr. Kanter—I have removed myself from the discussion tonight, at this point. Mr. Pinnisi - Can I ask why Mr. Kanter has removed himself from the discussion. Chairperson Sigel — I'm not sure, he's actually not... he doesn't always attend our meetings, so... Mr. Pinnisi - But he's chosen to voluntarily refuse to participate even though he's sitting in the room, I'd like on the record his reasons why. Chairperson Sigel—As a member of the public, I don't think he's... 79 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Mr. Pinnisi - You're speaking for him sir, I'm just curious if we could have his reasons why, because I believe he's... well, I'm not going to speculate, I'd like to know why he won't participate anymore. Ms. Anderson - And could you also make clear whether he was participating in assisting the board or whether he was participating as a member of the public. Chairperson Sigel—he was participating as a Town official. Mr. Pinnisi - But now he's no longer a Town official? Chairperson Sigel—He is a Town official still. Mr. Pinnisi - And he's choosing not to participate even though he's here. I find that highly irregular, and I'd like to know why. Mr. Matthews —He's not a voting member of this board. He's an advisor. Mr. Pinnisi - But he was asked to assist in the process and he's refused Mr. Krantz — The attorney and ... aren't voting members, and Chris isn't a voting member either and they participate. Ms. Brock— Staff really serve the board at their pleasure, so if the board isn't requesting his participation, I think that's their prerogative. Mr. Pinnisi - I'm wondering if it's because he's so personally upset that he has such a personal stake in this, and he's so distressed with me that he's unable to compose himself and participate, and I think that's something that this board and other bodies may want to consider if he's got a personal animus against this application. Mr. Kanter—May I approach the board? Chairperson Sigel—Sure. Mr. Kanter — If the board would prefer that I sit back up at the table, I'd be perfectly happy to. Chairperson Sigel — At this point I don't think we need your participation unless you want to. Mr. Kanter—That's fine. Either way, it's up to the board. Mr. Krantz—It's [inaudible] closed. 80 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Chairperson Sigel — I was trying to figure out what to do, if we need to do an environmental assessment. Mr. Krantz—We do. Chairperson Sigel—Well, it would be difficult, because... Mr. Ellsworth—Why would you do it if it's not going to be approved? Chairperson Sigel — Yeah, that's what we're just trying to confirm. I mean, town staff wasn't able to arrive at a conclusion, a recommendation of negative, so we would have a difficult time justifying a negative declaration. Mr. Krantz— [inaudible] vote on whether it's impossible... Chairperson Sigel — Well, that's also not something we necessarily want to get involved with, if it's not... I don't really think it's necessary. Ms. Brock — Well, I think based on the statement that no agency involved in an action may undertake, fund or approve an action, would seem to indicate that you would not need to make a determination of significance if the motion is to disapprove the action. Chairperson Sigel — OK. [pause] Now which, we have to figure out, which of all the sections listed, do you know, is relating to the use variance? I guess that would be 206, non-conforming use of structures? [Ms. Balestra and Ms. Brock engaged in side conversation] Chairperson Sigel—I mean really it's a... permitted principle uses, one family dwelling. Ms. Brock—It's 41. Chairperson Sigel—So it's 270-41? Ms. Brock—Mmm hmmm,permitted principle uses. Chairperson Sigel —OK. I will move to deny the appeal of Michael Pinnisi, requesting a variance from Chapter 270, Article VII, Section 270-41 of the Town ordinance — of the Town Code, to be permitted to have a third one-family dwelling on the property at 891 Taughannock Boulevard, Town of Ithaca Tax Parcel No. 25.-2-15, Lakefront Residential Zone. With the finding that the requirements for a use variance have not been satisfied, specifically that the alleged hardship has been self-created, and that if the applicant believes that they are not receiving a reasonable economic return, it is because they paid too much for the property approximately one year ago. At the time of purchase, the lower unit had been partially demolished and its use as a third dwelling unit had ceased for more than two years. A reading of the Town Zoning Ordinance would have revealed 81 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES that non-conforming uses expire after one year of non-use, and non-conforming structures must be rebuilt within one year. In addition, the granting of the variance would alter the essential character of the neighborhood. There are no other properties known to have three dwelling units in the area, and in fact very few have even two dwelling units. A three dwelling-unit parcel would certainly alter the character of such neighborhood. In addition, granting this variance would make it difficult to justify denying similar future requests from other owners; if that were the case, an even greater alteration of the essential character of the neighborhood would occur. In addition, the hardship is not unique. There are many properties in the area that are similar in size, slope, lake access, et cetera. The owners of those properties would presumably want to increase the value of their property by adding additional dwelling units if they could. Finally, that the issue of reasonable economic return was not met; that reasonable economic return does not necessarily mean positive cash flow. There are many properties that, given their purchase price, and given what they could realize in rent would not provide a positive cash flow, and that the absence of such is not necessarily evidence of a lack of reasonable economic return. Susan, anything you would...? Ms. Brock—I think in the criteria about the hardship being self-created, to make a finding that the applicant knew at the time he purchased the property that the property was non- conforming. Chairperson Sigel—OK. Ms. Brock — And in terms of the reasonable return criteria, to make a finding that the applicant has not shown that a reasonable return could not be realized for any permitted use of the property. Chairperson Sigel—OK, for every permitted use, for every allowable use Ms. Brock—Yes, that one does not look just at the existing use of the property, but looks at all of the permitted uses, and the applicant needs to show that none of those permitted uses would realize a reasonable return, and that finding has not been made, or that showing has not been met. Chairperson Sigel—Second? Mr. Krantz—Second. Mr. Niefer—Second. Chairperson Sigel—All in favor? Chairperson Sigel, Mr. Ellsworth, Mr. Krantz, Mr. Niefer—Aye. 82 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Chairperson Sigel—All opposed? Dick? Mr. Matthews —Yes, opposed. ZB RESOLUTION NO. 2006- 041: Michael Pinnisi, Appellant, 891 Taughannock Boulevard, Town of Ithaca Tax Parcel No. 25.-2-15, Lakefront Residential Zone MOTION made by Kirk Sigel, seconded by Ron Krantz RESOLVED that this Board denies the appeal of Michael Pinnisi, requesting a variance from Chapter 270, Article VII, Section 270-41 of the Town Code to be permitted to have a third one-family dwelling on the property at 891 Taughannock Boulevard, Town of Ithaca Tax Parcel No. 25.-2-15, Lakefront Residential Zone. FINDINGS: The requirements for a use variance have not been satisfied, specifically- 1. pecifically:1. The alleged hardship has been self-created, and that if the applicant believes that they are not receiving a reasonable economic return, it is because they paid too much for the property approximately one year ago. At the time of purchase, the lower unit had been partially demolished and its use as a third dwelling unit had ceased for more than two years. A reading of the Town Zoning Ordinance would have revealed that non-conforming uses expire after one year of non-use, and non-conforming structures must be rebuilt within one year. The applicant knew at the time he purchased the property that the property was non-conforming. 2. In addition, the granting of the variance would alter the essential character of the neighborhood. There are no other properties known to have three dwelling units in the area, and in fact very few have even two dwelling units. A three dwelling-unit parcel would certainly alter the character of such neighborhood. 3. In addition, granting this variance would make it difficult to justify denying similar future requests from other owners; if that were the case, an even greater alteration of the essential character of the neighborhood would occur. 4. In addition, the hardship is not unique. There are many properties in the area that are similar in size, slope, lake access, etcetera. The owners of those properties would presumably want to increase the value of their property by adding additional dwelling units if they could. 5. Finally, that the issue of reasonable economic return was not met; that reasonable economic return does not necessarily mean positive cash flow. There are many properties that, given their purchase price, and given what they could realize in rent would not provide a positive cash flow, and that the absence of such is not necessarily evidence of a lack 83 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES of reasonable economic return. The applicant has not shown that a reasonable return could not be realized for every allowable use of the property. One does not look just at the existing use of the property, but looks at all of the permitted uses. The applicant needs to show that none of those permitted uses would realize a reasonable return, and that showing has not been met. The vote on the MOTION resulted as follows: AYES: Sigel, Ellsworth, Krantz, Niefer NAYS: Matthews The MOTION was declared to be carried. Chairperson Sigel—OK. Thank you. Ms. Hunter- Which of you gentlemen seconded? Mr. Krantz—It doesn't matter, I'll take it if you want, or he can take it. Either one of us. Chairperson Sigel — I don't know if... do we need to...? There are area variances also requested. Ms. Brock—But in light of the use variance... Chairperson Sigel—Yeah, I don't think we can grant an area variance for a use that's not allowed. Ms. Brock—Right. Chairperson Sigel — I don't know if we should make some kind of formal denial, or formal motion of denial. Ms. Brock — It seems that the need for them is moot at this point. Right, they are connected, but perhaps if you wish, we could go ahead and formally state for the record, or have a vote on that too, I guess, and deny those. Chairperson Sigel—OK. Ms. Brock —Because they're asked to be done in support of the use which has not been permitted. Chairperson Sigel — Would you... do you want us to vote to deny the area variances, or would you like to withdraw them, given that... if it's not a permitted use, then we can't grant an area variance to build a structure that's illegal. 84 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES Mr. Pinnisi - If the question is am I waiving any rights or am I withdrawing any application, the answer is no. Chairperson Sigel —It is the case that, I can't think of any reason off the top of my head, but if for some reason we were to re-hear the case or re-consider it, if we'd already denied any aspect of it or any further aspect of it, I think it either needs a unanimous consent or a supermajority consent of the board to reconsider an appeal, whereas if it has been withdrawn by you, it could always be re-submitted by you and then would just require a majority again to be passed. Again, the relevance here is probably tenuous because of the denial of the use variance, but typically applicants in this type of situation would withdraw it, so that they would then, if they came back, would only require the majority instead of unanimous or supermajority, I'm sorry, I can't remember which it is. Mr. Pinnisi - What I'm understanding from Ms. Brock's comments is that the issue of a use variance cannot be reached at this ... I'm sorry, of an area variance, cannot be reached at this point, cannot be reached at this point because of the denial of the use variance. To the extent that's correct, I agree that there would be no point in going to the area variance question. Chairperson Sigel—OK. Mr. Pinnisi - But I'm not rendering a legal conclusion contrary to myself, OK. I don't know the answer to the question. Accepting that she says that we cannot reach the area variance question, then we don't reach it, and I'm... and I accept that. And I understand that there's been a denial made on the application for the use variance. I disagree with the findings, I disagree with the characterization of my supposed admission. I've said I waive no rights. I understand that to complete proceedings for tonight, that I leave without a use variance and therefore we don't reach the other issues. Ms. Brock—We could adjourn the consideration of the area variances which would then preserve all of your rights. Mr. Pinnisi - That makes good sense. As long as that's right, that makes sense to me. Like I said, I don't waive, but if we adjourn, I've waived nothing. Ms. Brock—No, you wouldn't waive any rights. We just won't... do not find the need to reach that issue tonight. Chairperson Sigel—We could say until a point when it becomes relevant. So I'll move to adjourn all of the remaining variance requests by the applicant to an undetermined meeting in the future when they might become relevant or germane to the applicant's application, and I'll note as a finding that this was with the applicant's consent. Second? Mr. Krantz—Second. Chairperson Sigel—OK. All in favor? 85 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY,MAY 15,2006 APPROVED MINUTES ZB RESOLUTION NO. 2006- 042: Michael Pinnisi, Appellant, 891 Taughannock Boulevard, Town of Ithaca Tax Parcel No. 25.-2-15, Lakefront Residential Zone MOTION made by Kirk Sigel, seconded by Ron Krantz RESOLVED that this Board adjourns all of the remaining variance requests by the applicant to an undetermined meeting in the future when they might become relevant or germane to the applicant's application. FINDINGS: This motion was made with the applicant's consent. The vote on the MOTION resulted as follows: AYES: Sigel, Ellsworth, Krantz, Niefer, Matthews NAYS: NONE The MOTION was declared to be carried. Chairperson Sigel—OK. Mr. Pinnisi - Thank you. Chairperson Sigel—If there's no other official business, then we are adjourned. Chairperson Sigel adjourned the meeting at 10:52 p.m. Kirk Sigel, Chairperson John Coakley, Deputy Town Clerk 86