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HomeMy WebLinkAboutZBA Minutes 2003-12-15 TOWN OF ITHACA ZONING BOARD OF APPEALS MONDAY, DECEMBER 15, 2003 7:00 P.M. PRESENT: Kirk Sigel, Chairperson; Harry Ellsworth, Board Member; Ronald Krantz, Board Member; James Niefer; Board Member; Andrew Dixon, Board Member; Andy Frost, Director of Building/Zoning; John Barney, Attorney for the Town; Michael Smith, Environmental Planner. OTHERS: Emanuela (Amy) D'Ambrogio, Hiscock & Barclay, LLP, Syracuse; Robert Ploessl, 136 Whitetail Drive; Herb Engman, 120 Warren Road; George Frantz, 604 Cliff Street; Ronald Ronsville, 680 Ridge Road, Lansing; Chris Bunger, Newfield. Chairperson Sigel called the meeting to order at 7:00 p.m. Chairperson Sigel — Good evening and welcome to the December 15 meeting of the Town of Ithaca Zoning Board of Appeals. Tonight we have three appeals. The first of Robert Ploessl, the second of Omnipoint Communications, the third of Heritage Townhouses. We'll take them in that order. APPEAL : Robert Ploessl, Appellant; requesting a Variance from the requirements of Article IV, Section 14 of the Town of Ithaca Zoning Ordinance to be permitted to maintain an existing single family home with a front yard building setback of 14.4 feet (25 foot setback required), at 136 Whitetail Drive, Town of Ithaca Tax Parcel No. 44-1-156, Residence District R-15. Chairperson Sigel — Mr. Ploessl you can just have a seat there at the microphone. Please just state your name and address for the record. Robert Ploessl- I am here representing the new owners of 136 Whitetail Drive, I now live out of town. Chairperson Sigel — So, you are not the current owner? Mr. Ploessl — No. I am the former owner, I am acting as the agent for the current owner. Mr. Frost— The problem that we have, I think came up at the property sale. Mr. Ploessl — Yes, it came up during the sale of the property in November. ZONING BOARD OF APPEALS DECEMBER 15, 2003 Mr. Frost— The building permit, when it was issued for construction of this property showed that it had a compliant setback. It is one of those situations where the builder built in error. Chairperson Sigel — It's a shame that there is no way that we can penalize the builder in this process. Mr. Frost—Well, we have the ability to require surveys when foundations go in. We don't always do that, it is a costly thing for a builder to get. Unless we have a feeling that there is going to be a problem, we don't always require it. Mr. Barney— I would suggest that you might want to require it because most times builders have to get a mortgage lien and the mortgagee normally requires that. Chairperson Sigel —Well, it seems fairly benign. As is pointed out in the application, there is actually more than 25 feet to the curb. I guess the property line ends fairly far back from the curb in this case. Anyone have any questions, statements of fact, objections. Mr. Barney— I would just like to point out that our office represented the applicants. Mr. Ploessl — Yes, during the closing. Chairperson Sigel — You would expect the real estate attorney to catch this sort of a thing. Mr. Barney— You would expect the Zoning Officer to catch this sort of thing. Mr. Ploessl — My only question is, is there any paperwork that I need to fill out or how does this processed now and filed. Mr. Frost— Is there any money held in an escrow account? Mr. Ploessl — Yes. Mr. Frost— You can call me in, perhaps, a week's time to get a copy of the final resolution. Mr. Ploessl — I'll contact you by e-mail. Thank you very much. 2 ZONING BOARD OF APPEALS DECEMBER 15, 2003 ZB RESOLUTION NO. 2003- 069: Robert Ploessl,136 Whitetail Drive, Town of Ithaca Tax Parcel No. 44.-1-156, Residence District R-15. MOTION made by Kirk Sigel, seconded by James Niefer. RESOLVED that this Board grants the appeal of Robert Ploessl, Appellant, requesting a Variance from the requirements of Article IV, Section 14 of the Town of Ithaca Zoning Ordinance to be permitted to maintain an existing single family home with a front yard building setback of no less than 14 feet, at 136 Whitetail Drive, Town of Ithaca Tax Parcel No. 44-1-156, Residence District R-15. FINDINGS: 1. The requirements for an area variance have been satisfied. CONDITIONS- 1. ONDITIONS:1. Only the existing building, as sited on the lot, is allowed to encroach to the 14 feet and no new construction is allowed to go within the normal setbacks. The vote on the a MOTION resulted as follows: AYES: Sigel, Ellsworth, Krantz, Niefer, Dixon NAYS: NONE The MOTION was declared to be carried unanimously. APPEAL : Omnipoint Communications, Inc., d/b/a T-Mobile U.S.A., Appellant; Jeffrey W. Davis of Counsel, Agent; requesting a Special Approval under Article XIII, Section 70a of the Town of Ithaca Zoning Ordinance to be permitted to place telecommunications equipment co- located at an existing Cornell University Water Storage Tank, located at 756 Dryden Road, Town of Ithaca Tax Parcel No. 65-1-5.2, Residence District R- 30. A Variance from the requirements of Article V, Section 18.10 is also requested to permit equipment to be placed at a height of 74 feet (30 foot height limit). Mr. Frost— That height variance may not be necessary; I threw it in just in case. Chairperson Sigel — Please state your name and address for the record. Amy D'Ambrogio, Hiscock & Barclay, LLP, Syracuse — I'm here on behalf of Omnipoint Communications Inc, d/b/a T-Mobile USA. Now, to begin with, I don't know if you want me to do a general overview of wireless service? 3 ZONING BOARD OF APPEALS DECEMBER 15, 2003 Chairperson Sigel — Sure. Ms. D'Ambrogio — Okay. Chairperson Sigel — You can go pretty light on the — Ms. D'Ambrogio — The technical? Chairperson Sigel —We've heard quite a few presentations about cellular service. But just sort of why you are putting it here. Ms. D'Ambrogio — Maybe I'll get right into the propagation study because that will be a good segway. Mr. Ellsworth —Wasn't this before us before? Mr. Frost— This is a different one, we did have something similar. Ms. D'Ambrogio — T-Mobile is pcs wireless provider. They're licensed by the FCC and currently, if you look at the propagations study, the green area would show you the current coverage area providing adequate service within east areas. The north side is located on the 911 tower and in the south, it is located on the "swift" property. Now, basically cellular phone service is a network— I'm sorry, the pcs provider creates a network of sites and each site basically speaks to one another. In order for adequate coverage in a certain area, you need a cell. A cell is basically a four to five mile radius that surrounds a base site. This base site, if accepted by the Zoning Board will be at the water tower. The star at the center of this circular area indicates the water tower and you'll see that all this coverage here provides inadequate service so that people can't get cell coverage, adequate cell coverage. So, this would provide users with basically, a good coverage area within the Town of Ithaca and parts of the Cornell Campus that currently are deficient with their service. The purpose of this propagation study is to show you kind of a real-life picture of where the service is adequate and inadequate. On this site, you will notice that only a mile or so to the south you get less coverage and this is a hill. Cell service is ideal when it is far up in the air because the signal can travel. T-Mobile is currently in the process of upgrading it's network in Central New York and that includes Tompkins County and the Town of Ithaca. The purpose of placing an antenna on the water tower is that, 1. It is in compliance with your Local Law 4 of 1998, in which co-location is preferred. This would be an ideal location because, as you probably remember from Cingular coming here about a month prior, it's an ideal location. It is already an existing structure. It's a win-win situation for the Board and for our client because nothing needs to be built, they will just be placing an antenna on the water tower itself. That takes me to the 4 ZONING BOARD OF APPEALS DECEMBER 15, 2003 next visual. I believe you already have copies of the site plan maps, but this stage has since then been revised after the Planning Board meeting because at the Planning Board meeting, the Board made the modification that would effect the visual impact. The Planning Board suggested placing trees around the base of the unit. A base for T-Mobile, is placed on a concrete slab adjacent to the water tower. It's white, it's made white and the Planning Board suggested that— Mr. Barney — Excuse me, what is made white, the concrete or the cabinet? Ms. D'Ambrogio — The cabinet. It's about six feet in height. Now, our antenna will be pretty close to the Cingular antenna, so this will give you kind of an idea. They will also be painted white, so they will be camouflaged, you won't be able to see them as much from afar and that was also suggested by the Board and T-Mobile agreed. The antenna will be connected by coaxle cable, which will also be painted white, will run along the side of the water tower on one of its legs, it will be connected to an ice bridge. What an ice bridge is, in case you don't know, it's a covering for the coaxle cable to protect it from snow, from weight, from ice, potentially cutting through the cables and then the ice bridge connects to the concrete slabs and then those wires connect to the land-lines, this will allow it to connect to other cell types and to the central switch, which is in Liverpool, New York. This diagram is pretty much the same. This shows, in here, the equipment cabinets, they will be placed on top of the concrete slab. As I said, it is going to be six feet in height. Around the perimeter of the cabinet, it was suggested by the Planning Board and we agreed to provide landscaping and there will be ten American Arborvitaes trees and they will be planted at four feet in height, but they'll grow to ten feet so they'll far exceed the height of the slab. I guess I'll open it up for questions, if anybody has any. Chairperson Sigel —Any questions? There is a statement in the packet indicating that their energy output is considerably lower than FCC limits. Ms. D'Ambrogio —We are well below the guidelines. Mr. Barney— This doesn't interfere with Cingular's antenna, or it won't interfere with it? Ms. D'Ambrogio — No, they're different frequency bands. Chairperson Sigel — Have you actually spoken with them to coordinate in any way the placement of the antennas with Cingular? Ms. D'Ambrogio — Not to my knowledge. Mr. Barney— Are they aware of the application from T-Mobile? Ms. D'Ambrogio — Not to my knowledge, I'm not sure. 5 ZONING BOARD OF APPEALS DECEMBER 15, 2003 Chairperson Sigel — You guys will just get to know each other when you are working on the site? Ms. D'Ambrogio —Well, actually, Jeff Davis, one of my colleagues who was here before the Planning Board, he actually knows the representative for Cingular, so, if it became an issue, he would know. Mr. Barney— I recognize that they are different signals, but there used to be a problem installing these on a tower within so many feet of each other, you would block each other's signals or something, they had to be 30 or 60 feet apart. Ms. D'Ambrogio — Right. It is somewhat less and it shouldn't be a problem because the frequency band is different. For example, in a pcs provider service, the band would be in the 1900-megahertz range and our antennas, say for example, would run on 1950 through 1960 range. Whereas the Cingular would run on the 1980 to 1990 range. So it wouldn't matter that they were in close proximity because they wouldn't be operating under the same band. Mr. Barney— Is the Cingular pcs band? Ms. D'Ambrogio — I'm not sure, it might be pcs. Normally they run under the cellar band which is 900-megahertz, but I know that in the industry, Cingular and other cellular providers are trying to move towards pcs. I'm not sure about this site. Chairperson Sigel — Presumably this is really Cornell's business to coordinate and keep them happy, right? Mr. Barney—Well, yes and no. We don't want to be in a situation where we accommodate bad situations. I don't know if you want to include a condition. Although, you are right, technically, Cornell is responsible. Chairperson Sigel - Yeah, Cingular should have as part of their agreement any restrictions that they thought they needed. Mr. Barney—Are you familiar with Cingular's agreement with Cornell? Ms. D'Ambrogio — I am not, no. Mr. Dixon —Actually, John, the Cingular lease has language in it that requires the lessor to ensure that there is no interference. I had a similar lease with --------. Chairperson Sigel — I mean, certainly they must have been aware that there would possibly be other carriers that would go up on the water tank. Mike, any comments? 6 ZONING BOARD OF APPEALS DECEMBER 15, 2003 Mr. Smith — No. I would just note the resolution from the Planning Board and the conditions. You have to make your own environmental determination. Ms. D'Ambrogio - I have a question. Will you be performing your own SEAR review before the determination or no? Chairperson Sigel — Yeah, we'll vote on the SEAR before we vote on the main motion. Ms. D'Ambrogio — Okay, great. Chairperson Sigel — Okay, any questions or comments at this point? Chairperson Sigel opened the Public Hearing at 7:16 p.m. With no persons, present to be heard, Chairperson Sigel closed the Public Hearing at 7:17 p.m. ZB RESOLUTION NO. 2003- 070: ENVIRONMENTAL ASSESSMENT : Omnipoint Communications, Inc, d/b/a — T-Mobile U.S.A., 756 Dryden Road, Town of Ithaca Tax Parcel No. 65.-1-5.2, Residence District No. R-15. MOTION made by Kirk Sigel, seconded by Harry Ellsworth. RESOLVED that this Board makes a negative determination of environmental significance in the appeal of Omnipoint Communications, Inc., d/b/a T-Mobile U.S.A., Appellant, Jeffrey W. Davis of Counsel, Agent, requesting a Special Approval under Article X111, Section 70a of the Town of Ithaca Zoning Ordinance to be permitted to place telecommunications equipment co-located at an existing Cornell University Water Storage Tank, located at 756 Dryden Road, Town of Ithaca Tax Parcel No. 65-1-5.2, Residence District R-30. A Variance from the requirements of Article V, Section 18.10 is also requested to permit equipment to be placed at a height of 74 feet, based upon the undated Full Environmental Assessment Form prepared by Town staff. The vote on the a MOTION resulted as follows: AYES: Sigel, Ellsworth, Krantz, Niefer, Dixon NAYS: None The MOTION was declared to be carried unanimously. Mr. Ellsworth —Would it be wise to insert a contingency that this is not in violation with Cingular's previous contract? 7 ZONING BOARD OF APPEALS DECEMBER 15, 2003 Chairperson Sigel — I don't see that as a bad idea, but I think that is Cornell's business and how they deal with their tenants. If you felt really strongly about it, I probably wouldn't object. Mr. Ellsworth — No, it was just a thought. Mr. Barney—Who are Cingular's competitors for this area? Ms. D'Ambrogio —Who are Cingular's competitors? Mr. Barney— I assume that Cingular is a competitor of T-Mobile. Ms. D'Ambrogio —Well, sure in the market as a whole, but there is a difference in that T-Mobile is a pcs wireless provider, whereas Cingular currently is more the cellular provider. There is a split; the pcs providers currently are Sprint, T-Mobil, AT&T, Cricket. Whereas the cellular service providers are Verizon, Nextel, and Cingular. So, really, within those markets, they provide similar types of service. Mr. Barney— If they are competitors, they may have objections, even though there is a difference in service. Ms. D'Ambrogio — That's true, but there was public notice of this meeting and I'm sure that they were given adequate notice of this and if they had objections — Mr. Barney—Well, I don't know that they would have read the Ithaca Journal and I doubt that any notice was given to them directly. Mr. Frost— Cornell would have to deal with that sort of thing. ZB RESOLUTION NO. 2003- 071: Omnipoint Communications, Inc, d/b/a — T- Mobile U.S.A., 756 Dryden Road, Town of Ithaca Tax Parcel No. 65.-1-5.2, Residence District No. R-15. MOTION made by Kirk Sigel, seconded by Harry Ellsworth . RESOLVED that this Board grants the appeal of Omnipoint Communications, Inc., d/b/a T-Mobile U.S.A., Appellant, Jeffrey W. Davis of Counsel, Agent, requesting a Special Approval under Article X111, Section 70a of the Town of Ithaca Zoning Ordinance to be permitted to place telecommunications equipment co-located at an existing Cornell University Water Storage Tank, located at 756 Dryden Road, Town of Ithaca Tax Parcel No. 65-1-5.2, Residence District R-30. In addition, a Height Variance is granted from the requirements of Article V, Section 18.10 to permit equipment to be placed at a height no greater than 75 feet. FINDINGS- 8 ZONING BOARD OF APPEALS DECEMBER 15, 2003 1. The requirements for a special approval have been satisfied. 2. The requirements for an area variance have been satisfied. CONDITIONS- 1. ONDITIONS:1. As recommended by the Planning Board, this Board will waive the requirements under Section 3 (a. an inventory report, b. dimensional standards and c. agreement to negotiate) of Planning Board Resolution 2003-095. The vote on the a MOTION resulted as follows: AYES: Sigel, Ellsworth, Krantz, Niefer, Dixon NAYS: NONE The MOTION was declared to be carried unanimously. Chairperson Sigel — Okay, you're all set. Ms. D'Ambrogio — Thank you. APPEAL: Heritage Townhouses Inc., Appellant; George R. Frantz, Agent; requesting an interpretation of Article IV, Section 11.2 of the Town of Ithaca Zoning Ordinance as to the intent of said regulation as it pertains to the size and location of a second dwelling unit in a two family home. Alternately a request from the requirements of Section 11.2 may also be requested to permit the second unit to be more than 50 percent of the square footage of the primary unit in a two family home, with said homes being located at 158, 160, 162 Troy Road and 214 E. King Road, Town of Ithaca Tax Parcel No.'s 44-1-4.50, 44-1-4.51, 44-1-4.52 and 44-1-4.41, Residence District R-15. Chairperson Sigel — Good evening Mr. Frantz. Mr. Ellsworth — Different position for you than in the past. You are getting both sides of the program now. George Frantz, 604 Cliff Street— I'm here to represent Heritage Town homes in this matter. Mr. Frost— Can I ask that before we start, just so we don't go in the wrong direction, are there any Board Members who do not understand why we are here because of the way the Ordinance reads? 9 ZONING BOARD OF APPEALS DECEMBER 15, 2003 Mr. Frantz—Actually, from our standpoint, at this point what we would like to walk away with tonight is an area variance for the house at 214 East King Road because the proposed accessory unit is- the question here is what is defined as a basement, as I understand it, what is defined as a basement in the Town of Ithaca and what is defined as a cellar in the Town of Ithaca. It appears, to us that, at least in the case of 214 East King Road, the lower floor of the principal unit would indeed be a basement. So, by excluding, this is the cellar space. Mr. Frost—At 214? Mr. Frantz— Yeah, at 214, 1 don't think we really can accomplish that. With the other ones, I can discuss them later. The three homes on Troy Road, 158, 160 and 162 Troy Road, the lower floors, the primary units in those three homes would definitely qualify as cellars. The floor areas of those, with the exception of where there are walk-out doors are well below four feet below the average surrounding grade. Would you like to do them first? They are the easy ones. Mr. Frost— It's not clear to me whether the Board really understands the situation here. The Town Zoning Ordinance since around 1960 has allowed people to have a side by side, in which we've interpreted that you have a primary unit and a secondary unit and the primary unit has got to be twice the size of the secondary unit, except they are saying, one of the things that you said here is that if you have an apartment in the basement, entirely in the basement, so you have an up and down, it doesn't matter what size the basement apartment is. With the number of times that we read this Ordinance, every so often we read something that we didn't quite catch before and one of the things that we've kind of picked up on, all of a sudden, is that it says and I'll read this " A two-family dwelling is allowed, provided that the second dwelling unit shall not exceed 50 percent of the floor area, excluding the basement of the primary unit. The ordinance seems to be saying that the primary units, if you take the basement out of the floor area calculation and assuming you may have a basement in the secondary unit, you are taking the full square footage of all the floors, including the basement and that still has to be less than half the primary unit. Have I lost anybody yet? And it doesn't seem, in my mind, actually prior to my coming to work for the Town of Ithaca, we just defined basement as anything basically below ground, technically, from a building code standpoint. Anyway we then put in, in the 1980's, a definition of cellar space. A cellar, maybe as imagined in the old days as down entirely below grade, but more technically, as long as the floor is more than four foot below ground, we define it as a cellar space. Anything that is just slightly into the ground, no more than four foot is defined as a basement. Everyone with me so far? Mr. Niefer— But you don't refer to four feet, you refer to 50 percent of the exterior wall. 10 ZONING BOARD OF APPEALS DECEMBER 15, 2003 Chairperson Sigel — Yeah, if you had an eight foot wall, it would be four feet. Mr. Niefer— You could have an eight- foot wall and it is totally filled of fill on the outside and then you could have an eight foot wall and there's nothing. So you average the two out. Mr. Barney— This is the one place where we use average grade. Chairperson Sigel — I think the intent when they put it in there was to follow the zoning. Mr. Barney— I think it was. Mr. Frost— I don't know if I've helped to try to clarify things. It's never been, in my mind, the intent to the ordinance, to exclude the basement or cellar of one unit and count it on the other unit. We took a building permit from Heritage Builders that we started looking at the floor plan and saying here, wait a second, we exclude the basement or cellar of this one side and I've got to decide what the 50 percent is and then we went back and we looked at three other building that were built and we saw the same basic floor plan. In those cases, which have since obtained Certificates of Occupancy, technically, they have cellar spaces, not basements and this said basements. Again, I'm not sure if I am making any sense. Mr. Dixon — Fascinating. Mr. Barney— I think the emphasis of the ordinance was to try and discourage two-family houses. What they really were attempting to do was to allow for granny apartments. The apartment was clearly subsidiary in a single-family house, but for people to put a second graduate student couple or something that would be clearly subordinate to the use of a single-family house. I think that's where the 50 percent rule came from, but, quite frankly, none of us were here when that 50 percent denomination was made. Mr. Frantz— It indicates that these three houses, we designed them so that the accessory unit was clearly an accessory unit and the floor area consists of a single-story two-bedroom with a basement. The accessory units are 32 feet by 32 feet. The full main floor, plus half the basement constitutes the living space for these units. So, the principle units, when calculated, they are full-blown two-story, three bedroom homes with a basement, excuse me, technically a cellar under the Town's Zoning definition, which also serves as a family room and a living space. So, we took the 3468 square feet of the principal unit, of the three floors of the principle unit and divided that by half to get 1734 square feet for the accessory apartments. 11 ZONING BOARD OF APPEALS DECEMBER 15, 2003 Mr. Frost— Part of the accessory apartment's basement, or however you want to look at it, is not included in the space because it contains mechanicals. Mr. Frantz— Right. Mr. Niefer— Isn't it true that these are set up to be student rentals five years from now? Mr. Frantz— No. Mr. Frost— These, I think are well beyond the range of a student. Mr. Niefer— How many bedrooms are there in "cellar" basement of these units? Mr. Frost— There aren't any. Mr. Krantz— There are zero. Mr. Niefer—With the toilet facilities and so on that are put in down there. Mr. Frost— There are no bathrooms down there. Mr. Niefer— It has all trappings of the student apartments. Just like Kendall Avenue and Pennsylvania Avenue. Mr. Frost— I am not sure I agree with that. Mr. Niefer—Well, time will tell. Chairperson Sigel — The first thing that the Board needs to decide is what the Ordinance means. What was the intent? My belief is that when the word basement was used, it was intended to mean what is now referred to as basement or cellar. I think the intent was any living space that is below grade. So, the intent of the Ordinance was to exclude anything below grade from the calculation of the primary unit, but not the accessory. Everything gets counted for the accessory. Mr. Frost—Are you suggesting that they would have guessed that the secondary unit had a basement or cellar space? Chairperson Sigel — If it did, then it would be counted. I think the intent of the Ordinance was to minimize, to the greatest extent the size of the accessory apartment. Which means, you count everything for the accessory, and you don't count anything below grade for the primary. 12 ZONING BOARD OF APPEALS DECEMBER 15, 2003 Mr. Frost— In your older typical homes, you have usually in the basement or cellar, the mechanicals and that was it. I'm not sure what the basement or cellar of the secondary unit would provide in terms of habitable space and amenities. Chairperson Sigel — It doesn't matter. The Ordinance doesn't refer at all to habitable versus not habitable. That's my interpretation and the reason I had come to that is that is because a basement is space that is, you could say, only half way under ground or less, meaning it is more desirable than cellar space, which is buried even deeper. So, it doesn't make any sense to me why you would exclude more desirable space and then not exclude less desirable space from the calculation. Mr. Frost— The question I'd rather ask then, is that if we have, by definition as our Zoning Ordinance defines it, cellar space and not a basement, being below grade area, would that just not be counted? Chairperson Sigel — It would not be counted for the primary and it would be counted for the accessory. Mr. Frost— But I'm saying as a cellar, the Ordinance reads basement. Chairperson Sigel —As a cellar. Mr. Frost— But the Ordinance reads "cellar". Chairperson Sigel — Right and I am saying I would recommend that this Board make the determination that the word basement in this part of the Ordinance means basement or cellar. Mr. Frost— But you can't do that if you have a definition that defines the two spaces. Mr. Barney— But the definition was done — Chairperson Sigel — The definition allows for interpretation. Mr. Barney— This section was adopted many years ago and was adopted from a reduction of the Building Code, the amendments in 1984 or around there. Mr. Frost—We actually did it in '86 or '87. Mr. Barney— Prior to that time, the Ordinance read it excludes basement in the calculations, so I think, quite frankly, when the Ordinance was amended to make the distinction between basement and cellar- 13 ZONING BOARD OF APPEALS DECEMBER 15, 2003 Mr. Frost— The old Building Code, at the time, made it very clear, that in most cases, you can't have habitable space in the cellar. Mr. Barney— I think that's not what it was, basically, it was to exclude people from using the cellar as living space. Mr. Frost - No, you can't because the Code normally wouldn't allow it. Mr. Barney— That's what I'm saying. It was probably done with that thought in mind, but I don't think we went back and looked at the implication of basement/cellar with respect to the calculation in front of you. Mr. Frost— Oh, yeah, no, I think it was just that we missed that one. Mr. Krantz— You know, in years to come, when the threat of nuclear war becomes prominent again, all homes are going to be built that are below grade. Chairperson Sigel —Well then we'll have to change the Ordinance quite substantially. Mr. Krantz— When this Ordinance that you are dealing with now is out-dated, whatever Ordinance we pass now is going to probably be out-dated in the future, unless you believe we will never have a nuclear war. Mr. Barney— Unless you believe no matter how far down you dig it, it won't be enough. Chairperson Sigel — Let me read to the Board the opening of Article 1, which is Section 12, where all the words are defined. "For the purpose of this Ordinance, certain words and terms shall have the following meaning, unless the context otherwise requires." So, basically, that's an out so that we can determine if the context requires a different interpretation of a particular word. So, before we proceed with the applicants any further I would like to move that this Board makes the determination that- Mr. Barney— Maybe you should open the Public Hearing first. I agree with the direction that you are going, but I think because it's advertised as a Public Hearing, you should hold the Public Hearing first. Chairperson Sigel opened the Public Hearing at 7:28 p.m. Chairperson Sigel — If anyone would like to speak about any aspect of this case. I guess we could open the Public Hearing again later. Mr. Barney— You could just hold it open. 14 ZONING BOARD OF APPEALS DECEMBER 15, 2003 Chairperson Sigel —Would anyone like to speak? Mr. Frost— I guess to kind of just re-summarize, we have a Building Permit application that was not issued on the basis that it doesn't apply the way that the way this Ordinance reads. We have three existing buildings that have been built and have been certified by the Town that have spaces that are cellars, not basements, which either may be or may not be in compliance depending on the determination that you make for the interpretation of this Ordinance. Chairperson Sigel — By my calculations, they will not be in compliance. Mr. Frost— But they are cellar spaces. Mr. Barney— I'm not sure that they can't be dealt with as part of this application here is for variances. Chairperson Sigel — It's for variances for those. Chairperson Sigel — I will move that, I'm not sure how to word this- Mr. Frost— Now we're just doing the interpretation, right? Mr. Barney— Yeah. I think you might want to say something like "Resolved to interpret Section 18, Subdivision 2, and analogous provisions in the R-9 and R- 15 Zones to provide for references made to the term "basement", the intent is as the part of the building that is below grade, including the cellar as defined in the Town of Ithaca Zoning Ordinance. Further to include for the calculating of the 50 percent rule, that the area below grade for the primary unit would be excluded in the calculations, but the area below grade for the secondary unit would be included in the calculations." Chairperson Sigel — Okay, sounds good. Any discussion? Mr. Niefer— Run that by again, would you please? So, what you are getting to do- Chairperson Sigel —Anything for the primary units in the house, anything below grade would not be counted as part of the square footage. For the accessory apartment, everything would be counted, everything above grade and everything below grade. So, the point is to minimize to the greatest extent possible, the size of the accessory apartment and to not allow a large basement or cellar or anything to allow you to then enlarge the accessory. ZB RESOLUTION NO. 2003- 072: Heritage Townhouses Inc, 158, 160, 162 Troy Road , Town of Ithaca Tax Parcel No.'s 44.-1-4.50, 44.-1-4.51, 44.-1- 4.52, Residence District R-15 15 ZONING BOARD OF APPEALS DECEMBER 15, 2003 MOTION made by Kirk Sigel, seconded by Andrew Dixon. RESOLVED that this Board interprets the word "basement'in Section 18.2, Section 11.2, and Section 4.2 to mean any floor of the building that is partially or completely below grade. This includes a "cellar"as defined in the Ordinance. Furthermore, when calculating the sizes of the dwellings, the area below grade for the primary dwelling is excluded from the calculation but the area below grade (as well as all of the area above grade) for the second dwelling is included in the calculation. The vote on the a MOTION resulted as follows: AYES: Sigel, Ellsworth, Krantz, Niefer, Dixon NAYS: NONE The MOTION was declared to be carried unanimously. Mr. Frost— The only thing I was just thinking was that, in some cases, we may have the side by side with a common cellar. In a house that is built on a foundation, you've got, say, I'll just throw out a number, 1,000 square foot on the left side and 500 square foot on the right side and then the basement has got all of the mechanicals for the whole upstairs units, that was, in the prior Ordinance, that way. In the old days, you didn't build a dividing wall between the cellar or basement. You had one big cellar or basement. Chairperson Sigel —Well, it is possible that- Mr. Barney— But you didn't usually have access to that basement from both units. Mr. Frost— Sure you did. Chairperson Sigel — I think if you have an accessory where, say, the only thing in the basement for the accessory, is say, the heater and hot water heater, but the accessory don't usually have access. There is a locked door to keep them from going in. Mr. Frost—All I'm suggesting is that the way the houses have been built, you didn't have two separate spaces for cellars, like you see now-a-days. Mr. Barney— But, typically, you had a separate, segregated apartment and that apartment didn't have access. 16 ZONING BOARD OF APPEALS DECEMBER 15, 2003 Chairperson Sigel — So, now that you know what the law is Mr. Frantz, would you like to star with 214 King or the units on Troy? Mr. Frantz — It doesn't matter really. Chairperson Sigel —Why don't we start with the units on Troy? Mr. Ellsworth — I'm not sure what we are doing. We've got three places that were built, occupied and have Certificates or Occupancy. Mr. Frost—As Certified by the Building Department. Chairperson Sigel —We just made the units on Troy Road non-conforming. Mr. Niefer—Are those rental units there on Troy Road? Chairperson Sigel — Yes. Ronald Ronsville, 680 Ridge Road, Lansing — I'm the owner and I built those with the help of George Frantz. I'm the president of Heritage Park Town Homes. I'm not renting to students. I want to make that perfectly clear. I don't intend to. It's not my target market, what-so-ever. We rent to families, graduate students with families. I'm renting to a couple that has taken the main house. They are very private people. These people like space, they like quality construction and they like the neighborhood. That's my target market. I won't be renting to undergraduate students ever. They weren't designed for undergraduate students. I just wanted to make that clear. Chairperson Sigel — Thank you. Mr. Barney— These units are presently rented right now? Mr. Frantz— Yes, six units. One of the markets that we are hitting with these homes are people who are re-locating to the Ithaca area. Families who are looking for the single-family detached home to live in for a year or so while their new home is either built or they find suitable new home. They really prefer this to living in the traditional apartment complex type development. That is our market. It's not designed at all, it's not at all attractive to students. Mr. Ronsville- I also would like to say that I own some similar units in Lansing that I rent out and I have a county judge as a tenant. I have the Dean of the Cornell Engineering College as a tenant. These people may come to town for a year or two and decide to buy or build or they may continue to rent. Not all of my tenants want to clean their gutters, they don't want to repair the boiler, they don't want to mow, they don't want to plow. I'm offering a high-end living unit for 17 ZONING BOARD OF APPEALS DECEMBER 15, 2003 specialized tenants that don't mind paying a mortgage, that may decide to move and buy, but these are my target clients. Chairperson Sigel — I appreciate your comments, but to be honest, it's really not this Board's prerogative to tell you who you should rent to. Really, if you were renting to students, that shouldn't make a difference as to how we decide. Mr. Ronsville — I heard it earlier and I just wanted to make it clear. Chairperson Sigel — I understand your desire to respond. According to the square footage numbers in George's letter to Andy, dated December first, and by my calculations, all the units on Troy Road are identical? Mr. Frantz— Yes, in terms of floor area. Mr. Ellsworth — Including 214? Chairperson Sigel — No, not the 214. Mr. Frost—We are not dealing with 214 now. Chairperson Sigel —According to my calculations, those are now a little under 67 percent. The accessory is 67 percent the size of the primary and I would certainly support a variance for those units, since there was confusion as how to interpret the Ordinance at that time. Now, you're unit on 214 King Road, according to my calculations is a little over 90 percent, the accessory is a little over 90 percent of the size of the primary and that I would not support a variance for. Mr. Frost— I guess we are excluding the basement of the primary unit of 214, but counting the basement in the secondary unit. In that one, since that one is a basement, there never should have been any question about that. Since that, under the definition of basement in the Zoning Ordinance, that is a basement and it says you exclude the basement in the calculation for the primary. Does everyone follow that? Mr. Ellsworth — The 90 percent, you are talking about the primary, not the secondary? Chairperson Sigel — No, on King Road, the accessory apartment is 90 percent the size of the primary. Considerably larger. Mr. Frost— Basically, the primary unit has a first floor and a second floor and you are taking out the basement. The secondary unit has a first floor and a basement and you are counting the basement there, so you are kind of looking at two floors against two floors. 18 ZONING BOARD OF APPEALS DECEMBER 15, 2003 Chairperson Sigel — The ones on Troy Road, if you don't exclude the sub terrain living space for the primary unit, then the accessory unit is only 44 percent the size of the primary so it is perfectly reasonable that the applicant assumed since it did meet the definition of cellar, that what they were doing is legal. Mr. Ellsworth —We've got to make 158 — 162 legitimate whatever because they're built and they have Certificates of Occupancy. Chairperson Sigel —We don't have to, but I agree that the fair thing to do certainly is to grant the variances. My inclination would be going forward to require all new buildings to conform to the law, to have accessories that are only 50 percent the size of the primary unit. I think that part of the Town Zoning Ordained has a very clear goal to discourage anything but single-family homes with a modest accessory apartment. Personally, I don't think it's appropriate to expand that, except in this case where there was confusion. You guys may differ on that. Mr. Niefer— So, basically, you are saying for East King Road, 2314 feet is the primary unit and then for the secondary unit half of that, which is 1100 and they would have to exclude the basement from considered as being living area, or cellar. Chairperson Sigel — Right, when you add up the square footage for the primary unit, you don't count the basement or cellar or whatever, for the accessory, if it does have a basement or cellar, you do count that. Mr. Niefer— You do count the cellar? So you are winding up with almost the same size floor area. Chairperson Sigel — For 214, yeah. Mr. Niefer— It seems to me that we already beat an issue like this to death up on Hanshaw Road the other day. Chairperson Sigel — You mean a few months ago? Mr. Niefer— Yes. Chairperson Sigel — Yeah. Mr. Barney— Let me suggest that you take the three separately and then deal with 214. 1 sense that there is a consensus from the Board on the first three. Chairperson Sigel — If it's okay with you George, we are going to move to approve the ones on Troy? 19 ZONING BOARD OF APPEALS DECEMBER 15, 2003 Mr. Frantz— That makes perfect sense. Chairperson Sigel —We also have an Environmental Assessment on this. Mike, any comments? Mr. Smith — I put a part 2 together, I'm not sure if you need it, if this is considered an area variance. I think you mentioned the one on Hanshaw Road was looking like it didn't need the Environmental Assessment for the area variance, so I wasn't sure. Mr. Frost—We had an EAF for the height variance for that one. Mr. Frantz— They are defined as type 2 actions. Mr. Barney — Let me find this, what is the section again? Mr. Frantz— 617.5. Actually, a., but under c.12 they refer to granting individual setback and lot line variances as not subject to review. 13 granting of an area variance or variances for a single-family, two-family or three-family residence. Mr. Barney— I interpret that to mean that you don't need to do the Environmental Assessment. Chairperson Sigel-Okay, I will move to — Mr. Ellsworth — You've got to close the Public Hearing for this part. Chairperson Sigel closed the Public Hearing on the properties for 158, 160, and 162 Troy Road at 8:01 p.m. ZB RESOLUTION NO. 2003- 073 : Heritage Townhouses Inc, 158, 160, 162 Troy Road , Town of Ithaca Tax Parcel No.'s 44.-1-4.50, 44.-1-4.51, 44.-1- 4.52, Residence District R-15 MOTION made by Kirk Sigel, seconded by Harry Ellsworth. RESOLVED that this Board grants the appeal of Heritage Townhouses Inc., Appellant, George R. Frantz, Agent, requesting an area variance from the requirements of Section 11.2 to permit existing construction of secondary units, at present, to occupy no more than 67 percent of the square footage of the primary unit in a two family home, with said homes being located at 158, 160, 162 Troy Road, Town of Ithaca Tax Parcel No.'s 44-1-4.50, 44-1-4.51, 44-1-4.52, Residence District R-15. FINDINGS: 1. The requirements for an area variance have been satisfied. 20 ZONING BOARD OF APPEALS DECEMBER 15, 2003 2. The applicant did build the properties with the assumption, which was at the time supported by the Town Code Enforcement Officer, that the units were in compliance with Town Zoning Regulation and only subsequently learned through interpretation by the Zoning Board that these properties were not in compliance with the Town Zoning Ordinance. CONDITIONS- 1. ONDITIONS:1. No further construction be permitted with respect to the second dwelling until such time that it represents 50 percent or less of the floor area of the primary dwelling. The vote on the a MOTION resulted as follows: AYES: Sigel, Ellsworth, Krantz, Niefer, Dixon NAYS: NONE The MOTION was declared to be carried unanimously. Mr. Krantz - At the risk of sounding like a gait fly, there is something mildly irritating to me to hear Heritage Builders to say that "no, they would never have a student or students in any of their apartments and to see this Board putting road blocks up against student apartments — many of us, directly or indirectly, in this community make our existences dependant on these same students. I wouldn't want them living next to me either, but something doesn't quite sit right when I hear those comments. Mr. Dixon — I think it's just really lack of relevance. Chairperson Sigel —We're not doing anything to prevent rental to students by the applicant. Mr. Dixon —We like students. Chairperson Sigel — Okay, so your properties were illegal and now they are legal again. On Troy. Mr. Frost— Now they are going to address 214. Mr. Frantz— Can I ask you a Building Code question Andy? One of the differences that distinguishes the house at 214 Troy Road is the breezeway between the garage and the house. I don't know if that qualifies as living space or not. Mr. Frost— The breezeway is serving the primary unit or the secondary unit? I'm looking at a section here, I'm not so sure I see a breezeway. My gut feeling is 21 ZONING BOARD OF APPEALS DECEMBER 15, 2003 that, we're not counting garages, assuming that the Board is not intending to count garages, in this case, they've got garages serving each of the units. Chairperson Sigel — I don't know John, what do you think about garages? Mr. Frost— I feel even more strongly that in the 1950's and the 1960's, you're going to see a two-family home with two garages, maybe that you wouldn't see now-a-days. Mr. Barney— It doesn't say habitable space and it doesn't say living space, it talks about floor area. Chairperson Sigel — It doesn't say heated. Mr. Barney— I'd expect to see garages included. In the absence of legislation changing it, I probably would leave that as included. Chairperson Sigel — That would be my intent because that would be another way for the accessory to become larger. Mr. Frost— I still question, that when this Ordinance was completed in the 50's and 60's how often you saw a floor plan like these houses. Chairperson Sigel — That is the entire point. Mr. Barney— I can remember where we used to allow seven un-related people to live together and then we ended up with a whole bunch of houses up in Sapsucker Woods that were designed with 14 bedrooms, seven in each one so that they could take advantage of a loop-hole in the Ordinance. Mr. Frost— I think architecturally, building-wise in the 60's you would houses like this. Just for the sake of discussion, if you're looking at this elevation, say you have an entire cellar space here, this lower level was entirely below grade and you had two-stories above grade or one story above grade, whether this cellar space is habitable or otherwise — Mr. Barney— That determination could have been made. Chairperson Sigel — The point of the Ordinance is to make accessory apartments a small part of a single-family home, that's my belief. In that type of situation, you wouldn't have a two-car garage for the accessories. My inclination would be to force the garage to be included in the calculation, so that if you want to have a garage for the accessory units, you have to still stay under the 50 percent. Now, you would get to count the garage for the principal. So, if you had a two-car garage for the principal unit and a one-car garage for the accessory, than that's not hurting you at all. Unless the garages were in the basement. 22 ZONING BOARD OF APPEALS DECEMBER 15, 2003 Mr. Frantz— I don't quite get the concern about the garages or overall building size because the size of the building on a residential lot in the R-15 Zone is governed by the maximum 20 percent lot coverage. Chairperson Sigel — It's not the size, it's the relative size. My interpretation of the Ordinance is a desire to not have what is essentially a twin home. Mr. Krantz—We understand that, which is why the homes are designed in the manner that they are, so that they don't look like a twin home. In fact, you can look at them and tell, definitely, that you have a primary two-story dwelling, which a smaller, secondary accessory dwelling. These were all designed in the spirit of the 50 percent rule in the Town of Ithaca Zoning Ordinance. Chairperson Sigel — I believe that the intent was to encourage single-family homes, that have accessory apartments. Meaning a home that is desirable to someone who would want to purchase and own the home and have an accessory apartment. Mr. Frantz—Which is what these are designed to be. Chairperson Sigel —And that's fine. Whatever you can design within what the law allows. Mr. Frantz— The law right now is changing under our feet. Chairperson Sigel — I would agree that it was not as clear as it could have been. I really don't quite get your complaint about 214 because that met the definition of basement and basement is excluded. So, 214 was never even close. Mr. Frost— I'm not saying it was right, I think George's thought was that— Mr. Frantz— If you are going to include the garage in 214, don't you have to go back and include the garage in the calculations for 158, 160 and 162 Troy Road? Chairperson Sigel —We do, yeah. How big is the garage in the primary, versus the accessory on Troy Road. Mr. Frantz— They both have a two-car garage 24 by 24 feet. Chairperson Sigel — Okay, so we probably do need to amend that variance to mention — Mr. Frost— But, say they were detached garages? Can I just raise a question here? I am trying to look at what we are doing and look at how I am going to deal with this in the future. We define a dwelling and we define a dwelling unit and 1 23 ZONING BOARD OF APPEALS DECEMBER 15, 2003 don't see where a garage is an area that provides living accommodations. We've always defined dwelling as a space that provides eating, sleeping and sanitary provisions. I don't see where a garage provides any part of a definition of a dwelling or dwelling unit. By definition, I don't see how you can count the garage, it's not a dwelling unit. Chairperson Sigel —A dwelling is a building designed for use exclusively as a living quarter for one or more families. Mr. Frost— You don't live in a garage. Chairperson Sigel —A dwelling unit is a dwelling or portion of a dwelling providing complete living facilities for family. Mr. Frost— You don't need to have a garage to have a dwelling unit. Chairperson Sigel — No, you're right. Mr. Barney— That's correct, but if you have a garage, does that mean that it's not part of the dwelling unit? Mr. Frost—Well, if you have a detached garage and you have an accessory building, I don't see how you can claim a detached garage counts as part of the dwelling unit, which I think you just addressed. Chairperson Sigel — I tend to be sympathetic to Andy's point of view, then do you count storage buildings that are detached? Mr. Barney— Let me suggest that detached is not before us tonight, so I'm not sure that that is- Chairperson Sigel — But I think that it is important that we make a clear interpretation. Mr. Frost— If you take an attached garage out of the building, you still have the building. I don't see how you can call the garage part of the building. Mr. Barney - You could take the living room out of the dwelling unit, as well and you still have the dwelling unit. Mr. Frost— But you still have the ability to have living, cooking and sanitary provisions. I don't see where a garage provides living, cooking and sanitary provisions. Mr. Barney— Nor does a family room, nor does a drawing room. 24 ZONING BOARD OF APPEALS DECEMBER 15, 2003 Mr. Frost— But you don't need that to have that to have a drawing room. Mr. Barney— You don't have to have a garage to have a dwelling unit either, but once you have it, you have, the issue to me is that you have created a structure, which has in it a lot of spaces that you don't have to have to have a dwelling unit. Once they are there, they become a part of the dwelling unit. Chairperson Sigel — You don't need a foot to be human, but when you have a foot, it is part of you. Do you guys have any strong opinions about garage as being — Mr. Ellsworth — I don't consider it part of the dwelling unit and I realize that it can be finished, but usually, they are unfinished. Chairperson Sigel — Obviously, we would only be talking about unheated garages. Mr. Ellsworth — They don't have facilities for washing and cooking and all. Mr. Frost— The point is that we have definitions here and we have definitions that define cellars and we have definitions that define basements. We're using the word basements in this restriction, they're not cellars. Mr. Barney—Where does the basement say that it is a living space? Mr. Frost— The Ordinance uses the word two-family dwelling and one-family dwelling. We define dwelling. Mr. Barney—Where does it say that a basement in a building is a habitable space? Mr. Frost— Let me reverse that, where does it say that in the Ordinance that you count the garage as being part of the home? Mr. Barney— It doesn't, but it doesn't say about living room, it doesn't say about bedroom, it doesn't say about porches or anything else. It seems to me that you've built a building, what you include in that building becomes part of your dwelling unit. Parts of it could be removed and not— Mr. Frost— They key word here is living quarters and I don't see where the garage is- Mr. Barney— That defines what a dwelling unit is. I agree, you don't have a dwelling unit if you don't have a place to bathe, a place to cook and a place to sleep. Once you have those three, that doesn't necessarily define the size of the dwelling unit. 25 ZONING BOARD OF APPEALS DECEMBER 15, 2003 Chairperson Sigel — John's point is that when you add a den, that becomes part of the dwelling unit. When you add a family room in addition to a living room, that becomes part of the dwelling unit. So, then, when you add a garage, does that become part of the dwelling unit? Mr. Frantz—Architecturally, no. In general architectural thinking, the garage is not counted as part of the dwelling unit, neither is the floor area. Again, what happens if the garage happens to be separated from house, then does it count? Mr. Frost— I think even the way assessment is regulated, do they use the square footage as living space? Mr. Frantz— No. Mr. Barney— I'm not sure that you really need to address that issue. Mr. Frost— Now we are looking at going back to the Troy Road properties and amending the resolutions because they have garages. Mr. Barney—What would the area be on the Troy Road properties inclusive of the garages? Chairperson Sigel — 1540. Mr. Barney— 24 by 24 is 576 square feet? Chairperson Sigel — So you add 576 to both. 73.2 percent. You are adding the same space to both. When you add space to the primary, you can only add half as much space to the accessory to stay legal. Mr. Frost—We are making the assumption then that authors of the Ordinance were looking at the entire area, including the garage, yet at the same time, the Ordinance allows the garage to be closer to a property line then the setbacks of the house. I think even, when this Ordinance was conceived the authors looked at a garage being something different, otherwise they wouldn't have allowed the setbacks to be closer than the primary part of the building. I think you are taking the position that the garage was intended and there might be a contradiction there. Mr. Krantz—Aren't we making this a little more complicated than it has to be really? The garage, unless it is part of the living quarters, should not be considered part of the dwelling, period. Chairperson Sigel —Well, that's what we need to determine. 26 ZONING BOARD OF APPEALS DECEMBER 15, 2003 Mr. Frost—What I'm suggesting again, is that, when this Ordinance was written, they thought of the garage as being something different because you can get ten foot to the property line with the garage. Mr. Barney— The countervailing argument, again if you go back to what you are attempting to control, the size of the unit, if you exclude the lots, you could have a situation with a four car garage for your secondary unit and a two car garage or a one car garage for your principal unit. You've now, basically allowed that unit to have both sides the same size. Chairperson Sigel —Anything you exclude can grow to be huge. Mr. Barney— Exactly. So, I would think that you want to include the garage. I'm not so sure that it is fair to impose new requirements on this applicant because the application that you presently have before you with respect to 214 King Street, I mean East King Road, I assume there has been some activity in planning, for construction. It is one thing to say, deal with this. Chairperson Sigel — I would argue, I mean, if the applicant, if what they wanted to do, say, was build a house identical or very similar to the ones on Troy Road, I would then agree with you John, but what they've proposed for King Road, is, under any reasonable interpretation of the Ordinance, previously, extremely out of line. My point would be that I don't understand why they thought they would definitely get a variance for that. The accessory is 90 percent the size of the primary. Mr. Barney— Including garages? Chairperson Sigel — No, not including garages. Just interpreting the law the way Andy had been interpreting the law, it comes to 90 percent. Mr. Frantz— If you consider the full basement of the accessory unit as admissible space. Chairperson Sigel — Yes. Mr. Frantz— It is not. Chairperson Sigel — The word "habitable" does not appear in that clause of the Ordinance. Mr. Frantz—Well, let me explain this house, the only difference between this house and the three houses on Troy Road is that there is not as much dirt piled up against the principal unit's basement. 27 ZONING BOARD OF APPEALS DECEMBER 15, 2003 Chairperson Sigel — That can't be true because the numbers don't add up the same. Mr. Frost—When we looked at Troy Road, we were looking at cellar space and not basements. Mr. Frantz— The floor area of the principal unit of the buildings on Troy Road is 2312 square feet, they have the exact same floor plans as the main unit of this home on 214 East King Road. The accessory unit here, 214 East King Road is the same except for the addition of the breezeway between the garage and the dwelling. Otherwise, you are talking about the same floor area. Mr. Barney—What's the floor area of the accessory building? Chairperson Sigel —Well, then the units on Troy Road were misrepresented to me because you state- Mr. Frantz— I stated, what, 3,000 including the basement. And then, again, in terms of— Chairperson Sigel — You say the living areas of the accessory apartments are 1540 square feet? Mr. Frantz— Right. Chairperson Sigel - What's the total square footage, including the subterranean levels of— Mr. Frantz—Well, as you are now interpreting it, you have to count the entire basement, even though it is not all habitable space floor area. Chairperson Sigel —What's the floor area? Mr. Frantz—Well, 1024 times two, 2048 square feet. Mr. Frost— That's two floors of the auxiliary. Mr. Barney— So how do we get the 1540? Chairperson Sigel —Were you counting part of the basement? Mr. Frost— He was excluding the mechanical room area. Mr. Frantz—We were relying on the Building Code. 28 ZONING BOARD OF APPEALS DECEMBER 15, 2003 Mr. Barney— First let's go back a little, so in the basement area there is a common mechanical room? Mr. Frantz— No. It's separate. Mr. Frost— It's exclusive to the accessory. Mr. Barney— So, I'm sorry George, what is it 1,020 feet per floor? Mr. Frantz— 1024, 32 by 32. Chairperson Sigel — So, 2048 total. Mr. Barney— Exclusive of garages. Mr. Frantz— Exclusive of garages. Mr. Barney—And this primary unit? What's the square footage of each floor there? Mr. Frantz— The square footage of each floor in the primary unit- Chairperson Sigel —Well, the total in the primary is 3470 and there is 1156 below ground? Mr. Frantz— Right. Chairperson Sigel —Which gives you 2314 above. Mr. Frantz— Each floor on the primary unit is 1156 square feet. The principal units are 34 feet by 34 feet and they are two stories. Mr. Frost— The accessory is 32 by 32. Mr. Frantz— 32 by 32. Chairperson Sigel — The motion we made for those units on Troy Road is off by quite a lot, but King Road is about 90 percent. Mr. Frost— I've got to apply this Ordinance in the future. Our Ordinance says excluding the basement of the primary dwelling unit, it doesn't say excluding the cellar of the primary dwelling unit. Chairperson Sigel — That's what it means now. The question we still need to resolve is about a garage. 29 ZONING BOARD OF APPEALS DECEMBER 15, 2003 Mr. Barney— Let me suggest that tonight you are dealing with attached garages. (Inaudible) Chairperson Sigel — Okay. Mr. Barney— I would suggest that the prior resolution on the issue of the area of square footage be amended for that percentage. Chairperson Sigel — The issue is whether to count an attached garage, at this point, as part of the square foot calculation when deciding whether an accessory apartment is 50 percent the size of the primary dwelling unit. As John pointed out, if they did not count them, then you can allow for some rather absurd situations where you could have a very large garage for an accessory use that, I think, would clearly go against the spirit of the Ordinance. I think that, given the spirit of the Ordinance, that an accessory unit be 50 percent the size of the primary unit, I feel that it is reasonable that the garage would also ordinarily be 50 percent the size of the primary unit's garage and therefore, I would support including the garage in the calculation, only for attached garages. Mr. Dixon — That's a pretty extreme change. Mr. Frost—Assuming, from a practical standpoint, that you have a four-bedroom primary unit and a two-bedroom secondary, why would the secondary have a four-car garage? Mr. Dixon — My concern is that we might be doing something that might effect multiple properties. Chairperson Sigel —We wouldn't be saying that the accessory unit could only have one-car garage. Mr. Dixon — I'm saying that this could affect a number of properties in the Town. Chairperson Sigel - The question is what is your interpretation of floor area? Mr. Barney— (inaudible) Mr. Niefer— Section 15 relates to 20 percent of lot area as far as being covered by building, including accessory buildings. To some extent, the amount of footprint that you can have on a building lot is 20 percent, so I don't see the concern about having the two-car garage and the three-car garage. I think that throwing this one-car, two-car garage into the mix as far as making a determination is not really necessary. 30 ZONING BOARD OF APPEALS DECEMBER 15, 2003 Mr. Frantz—Again, as a site planner, I deal with lot mass and lot coverage. Those are the two elements in the Zoning Ordinance that determine the mass of the building. You can have a single-family detached garage or an attached garage, you can have a single-family attached home in this town and have a five- car garage that's twice the size of your home and you don't need any variance. So, I don't understand the issue at all here. The other thing that I guess is really confusing me is that I have also been, knowing that the Town is been going to adopt a new Zoning Ordinance, I've been looking at the new Zoning Ordinance and none of this is addressed in the new Zoning Ordinance. In fact, in the new Zoning Ordinance, does it still allow a second dwelling unit that is detached from the primary dwelling unit? (Inaudible) Chairperson Sigel — I'll just try and make one more plea for my point to the Board and then I'll let it go. Mr. Ellsworth — I think the concern of this side of the Board is that you start throwing the garage in there for this case what's going to happen with how many other cases? Chairperson Sigel — I would argue that that's not necessarily what we should be concerned about, you should be concerned about interpreting what you think the Ordinance intended. I would argue that the Ordinance reads a two-family dwelling, provided that the second dwelling units do not exceed 50 percent of the floor area, it doesn't say habitable space, it doesn't say space excluding an attached garage, it just says floor area, excluding the basement of the primary dwelling unit and so on. All it says is floor area. It seems to me that an attached garage is part of the floor area of the house. Mr. Frantz— But to an architect it is not. Chairperson Sigel — I don't want to try to overly persuade you, but that's what I am reading and that's how I am arriving at my interpretation. Mr. Dixon — I am more inclined to agree with Andy's interpretation of the garage being separate from a dwelling unit because the garage is allowed to encroach on the setbacks. Chairperson Sigel —Well, that's a detached garage. We're not talking about a detached garage. A detached garage is allowed to be closer to the side lot line, that's true. An attached garage is not allowed. The side of the garage can't be closer than otherwise. Mr. Barney— The garage can be. Chairperson Sigel — Can it? Okay. Who is in favor of- I guess either way, we should go back— 31 ZONING BOARD OF APPEALS DECEMBER 15, 2003 Mr. Barney— I take it back, a detached garage can be closer to a lot line than an attached garage, but a detached garage (inaudible) Chairperson Sigel — Oh, okay, so an attached garage can be closer than otherwise? Mr. Barney— An attached garage can be ten feet— Mr. Frost— You're opening up a whole `pother can of worms. Attached or detached can be ten feet away, unless you are going to call a detached garage an accessory building, then it is three foot. Mr. Krantz — You can start just thinking of floor space, what about patios, porches? Mr. Frost—Well, a patio, those are specifically exempt under Section 65, under three foot from the ground. Any of those items does not count specifically to anything and that is Section 65 of the Ordinance. They actually use the term in Section 65, patio's and unused porches, i.e. a deck Section 65 says "Provisions to this Ordinance shall not apply to fences or walls over 6 foot high above natural grade, nor to terrace steps, unused portions of similar features, not over three foot above the level of the floor—" Mr. Krantz— While realizing what that there could be certain situations where there is the opportunity that the garage could be massive, I still think maybe we are biting off more than we could chew. Chairperson Sigel —Well, let's take a poll as to who would be in favor of not counting the garage in either the primary or the secondary. Mr. Frantz— May I make one comment? Chairperson Sigel — Sure. Mr. Ronsville — I have hired professionals to design this custom building in a specific site. I believe we are only 17 percent of your entire lot area. I've got Larry Fabbroni as designer and engineer taking into consideration the Zoning interpretation that we believed we were following. I appreciate your consideration. Chairperson Sigel — So, who is in favor of excluding the garage? Mr. Niefer— Excluding the garage from the calculations? 32 ZONING BOARD OF APPEALS DECEMBER 15, 2003 (A show of hands indicated a majority of the Board in favor of excluding the garages from the total area calculations) Chairperson Sigel — Yes. Okay. So, I think we should probably vote to amend our previous motions to make it clear. Mr. Barney— Yes, I would suggest that. If you take the garage out, that would be what? Chairperson Sigel — Our first motion was the interpretation, we need to clarify that motion. Mr. Barney— Right. ZB RESOLUTION NO. 2003- 074: Heritage Townhouses Inc, 158, 160, 162 Troy Road, Town of Ithaca Tax Parcel No.'s 44.-1-4.50, 44.-1-4.51, 44.-1-4.52, Residence District R-15 MOTION made by Kirk Sigel, seconded by Andrew Dixon. RESOLVED that this Board modifies ZB Resolution No. 2003-072 clarifying the Zoning Ordinance with regard to second dwelling units to state that attached garages are not to be counted in the calculation for either the primary or secondary dwellings when calculating floor space. The vote on the a MOTION resulted as follows: AYES: Ellsworth, Krantz, Niefer, Dixon NAYS: Sigel The MOTION was declared to be carried. Mr. Barney— Now, you need to go back and change the percentage. ZB RESOLUTION NO. 2003- 075: Heritage Townhouses Inc, 158, 160, 162 Troy Road , Town of Ithaca Tax Parcel No.'s 44.-1-4.50, 44.-1-4.51, 44.-1- 4.52, Residence District R-15 MOTION made by Kirk Sigel, seconded by Andrew Dixon. RESOLVED that this Board modifies the variance granted in ZB Resolution No. 2003-073 for the properties at 158, 160 and 162 Troy Road to modify the stated percentage of 67 percent and change that to be 88.5 percent. The vote on the a MOTION resulted as follows: 33 ZONING BOARD OF APPEALS DECEMBER 15, 2003 AYES: Sigel, Ellsworth, Krantz, Niefer, Dixon NAYS: NONE The MOTION was declared to be carried unanimously. Chairperson Sigel — Okay, now we are back to 214. Again, I would argue that, because the subterranean space at 214 does qualify as a basement and therefore there shouldn't have been any confusion about how it was treated. The Ordinance does use the word basement in that location. Mr. Frantz— Except that this house was designed after the construction of the three houses on Troy Road and we got word from the Town staff of the new interpretation of the Zoning after we submitted an application for a Building Permit for this house. Mr. Frost— Except that was when we were reviewing that application. Mr. Barney— I have to say that that's when it first came to my attention and that is what provoked all of this. Mr. Frantz— So, this whole issue of basement or cellar did not arise until after the construction of those three and the submission for a Building Permit for this house. Mr. Dixon — You might not have gotten those three, if you had come to the Board with those. Mr. Barney - I want to say that it was the 214 application that was the first time I had seen the configuration and (inaudible) Chairperson Sigel — Right, I understand that it was 214 that brought us to the attention of the homes on Troy Road and that is why the Board was very disposed towards granting variances for the homes on Troy Road, but now we're dealing with King Road. Mr. Frantz— That's my point. My point is that we designed and constructed the homes on Troy Road, based on the fact that the living area within the accessory dwelling would not exceed 50 percent of the living area in the primary dwelling, including the basement/cellar. That is the design of the three houses on Troy Road, that is the design here. As of tonight, obviously, the rug has been pulled out from under our feet in terms of definitions. Mr. Dixon — George, you asked for an interpretation and we gave you an interpretation. Mr. Frantz—Well, the fact— 34 ZONING BOARD OF APPEALS DECEMBER 15, 2003 Mr. Frost—Well, you and I, while we agreed on some points, disagreed on the others. Mr. Barney— This reminds me of a very famous case in New York City. The applicant misconstrued the zoning for the location of the building and built the building too high. The court of appeals said sorry, you have to remove half a dozen stories. It's not like you went ahead and built 214, we've taken care of the problem in a way, that frankly, New York City didn't take care of. Mr. Frantz — I just want to make it clear that we were operating- Mr. Barney— Nobody is implying ill faith or bad faith around here, but when something like this surfaces, we try to remedy it the way that the Ordinance dictates. Chairperson Sigel — My main point is that the house at 214, if you read the definition at the beginning of the Ordinance, subterranean space does qualify as a basement. So, if you read the Ordinance, it says, it uses the word "basement" so there is no question that the subterranean space in the primary unit of that dwelling is excluded. Mr. Frantz— Again, it was brought to our attention, late in the process, but I'd rather proceed with the question what can we do with 214 at this point? Mr. Frost - You could make the basement all part of the primary unit, put a wall in. Then you would just have the two floors above grade. Mr. Frantz— I follow you, but I guess my question to the Board is why would this not qualify for an area variance? Chairperson Sigel — There were extenuating circumstance with Troy Road where the Board, I think understood that because of the confusion between the terms basement and cellar and obviously the fact that you received approval and built the properties that that was certainly deserving of a variance. The detriment to you, at this point, would be very substantial on those properties, since they are already built if you would have to modify them. The harm to the community was not as great as the detriment to you. Now, on a property that is not built, that's a substantially different equation. Mr. Frantz— I guess my question is what would be the detriment to the community? Chairperson Sigel — Circumvention of the Ordinance. 35 ZONING BOARD OF APPEALS DECEMBER 15, 2003 Mr. Frantz—Again, what would be the determent to the health, safety or welfare of the community? Chairperson Sigel — Circumvention of the Ordinance. Mr. Frantz— I just don't understand what you mean by circumvention because we are certainly not trying to get around it. Chairperson Sigel — The Ordinance was passed to promote a certain character to neighborhoods. Mr. Frantz— Correct. Chairperson Sigel —And I don't believe it's this Board's job or right to substantially alter that. That's the legislative body's job. Mr. Frantz— I guess, I am asking how does this house alter the character of the neighborhood? Chairperson Sigel — I think that's a question better addressed to the legislature. We've made an interpretation, which I understand you may not like, but we have made an interpretation which makes this property as you've proposed substantially out of conformity. Everyone could come here and say well what's the detriment to the community if I make my house ten feet higher or if I make it cover 30 percent of the lot or if I make it two feet from the lot line. In every case, you could probably argue that there isn't going to be a substantial harm in that one case, but the cumulative effect would be harmful. Mr. Frantz— I would say there are many times when an area variance would, in fact create substantial harm to the surrounding neighborhood. Chairperson Sigel — I don't doubt that there are. Mr. Frantz— In fact, many, many of them, from my experience working for the Town. Again, I want to know what the criteria set out by state law are. Mr. Frost— You can come back with a new application for 214 and have the primary unit much larger than it is now and meet that 50 percent rule and as long as it stays under the 20 percent coverage. Chairperson Sigel —All we can do is uphold the laws as we're given. Mr. Dixon — George, you're trying to build a two-family house in a one family neighborhood. Mr. Frantz— Zoning permits two-family homes. 36 ZONING BOARD OF APPEALS DECEMBER 15, 2003 Mr. Barney— No, it permits a single-family home with an accessory apartment, that's not the same thing as a two-family home. Mr. Frantz— The Zoning allows a two-family dwelling. Mr. Barney— That's not quite the same thing, providing that the secondary dwelling is less than 50 percent. Mr. Frost— Right, so if he doesn't exceed the 20 percent, he can make that primary unit much larger now. Mr. Barney— That's what I was saying. Mr. Frost— I'm not saying that that was wrong. Mr. Barney— Under that circumstance, the secondary apartment would be a true secondary apartment and it would be less than 50 percent of the primary unit. Mr. Frost— I guess what I was debating is that this is zoned one and two family dwellings. Mr. Barney— Zoned two-family dwellings with certain, limited circumstances. It is not an automatic two-family house. One of the criteria was that the hardship is self-created. Mr. Frost— I'm not debating that either. Mr. Barney— It is one thing to have houses built under a Building Permit that was granted, they were constructed, they are up and they are done. Mr. Frost— I am not debating that. Mr. Dixon — You can sort of see which way the Board is going. Chairperson Sigel — George, the measurements of this, as you have already stated, are about the same as Troy Road? So the percentage is going to be the same? Mr. Frantz— Yeah, with the exception of this breezeway. The floor areas are all the same. Mr. Niefer— The plans that I have for 214, 1 don't see any breezeway. It's all attached, but I don't see any breezeway anywhere. Mr. Barney— The breezeway is outside. 37 ZONING BOARD OF APPEALS DECEMBER 15, 2003 Mr. Niefer— It's open on grade level, could you explain it? Okay, I see. Chairperson Sigel — You would require a variance of approximately 88 and a half percent, give or take a little. Is the breezeway part of the accessory? Okay, so if we counted the breezeway, it would be slightly larger. For a property that is not built yet, there is no way I could support that. You are practically at 100 percent, that's a twin house, that is what the Ordinance is supposed to preclude. I feel very strongly that the 50 percent rule should be adhered to, no exception. That is the intent of the Ordinance and, in my opinion that is not a measurement that needs to be exceeded. Mr. Niefer— If the accessory apartment's lower level were truly a cellar or a crawl space, they could build the plans as proposed because the floor are of the accessory would be about 50 percent of the qualified area on the main building. Chairperson Sigel — If it was a crawl space. Mr. Niefer— If it were a crawl space or truly a cellar, I'm not talking about a basement, I am talking about a cellar. Mr. Barney— You just made the interpretation that the cellar gets included. Chairperson Sigel — Cellars for the accessory gets included. Mr. Niefer—Well, then just if it were a crawl area. Chairperson Sigel — Right. I suppose I'll close the Public Hearing on 214 East King. Would you like to speak? (inaudible voice from the audience) Chairperson Sigel — If you could come to any microphone. We record. You could sit right on the end there, that would be great. Chris Bunger, Newfield — I'm just hearing that no this building hasn't been built yet, but nobody seems to understand the costs that he has already incurred. He's not buying up every lot in Town to build these places. He just wants one more permit for that Troy Road area and then he is moving on. He's done that with the same plans and the same ideas and now you are changing the rules as we are going along here and nobody seems to be thinking about the professional money that he has put out and everything that has been involved getting this ready under the same presumption that he did one, two and three. These are very high- end rentals, they're very nice properties and I think the Town should be happy to have that development in that area. 38 ZONING BOARD OF APPEALS DECEMBER 15, 2003 Chairperson Sigel — Thank you very much. Chairperson Sigel closed the Public Hearing for 214 Troy Road at 9:00 p.m. ZB RESOLUTION NO. 2003- 076: Heritage Townhouses Inc, 214 East King Road, Town of Ithaca Tax Parcel No. 44.-1-4.41, Residence District R-15 MOTION made by Kirk Sigel, seconded by James Niefer. RESOLVED that this Board denies the appeal of Heritage Townhouses Inc., Appellant, George R. Frantz, Agent, requesting a variance from the requirements of Section 11.2 to permit the second unit to be approximately 90 percent of the square footage of the primary unit in a two family home, with said home being located at 214 E. King Road, Town of Ithaca Tax Parcel No.'s 44-1-4.41, Residence District R-15. FINDINGS: 1. 90 percent is too large a deviation from the requirement that it be no greater than 50 percent The vote on the a MOTION resulted as follows: AYES: Sigel, Ellsworth, Krantz, Niefer, Dixon NAYS: NONE The MOTION was declared to be carried unanimously. Chairperson Sigel —We have an agenda item for setting the meeting schedule for 2004. Does anyone have any particular problem with these proposed dates? Okay. ZB RESOLUTION NO. 2003- 077 : 2004 Zoning Board of Appeals Meeting Schedule MOTION made by Kirk Sigel, seconded by Ronald Krantz. RESOLVED that this Board approves the 2004 Zoning Board of Appeals Meeting Schedule as follows: January 26, 2004 February 23, 2004 March 15, 2004 April 19, 2004 May 17, 2004 June 21, 2004 July 19, 2004 August 16, 2004 39 ZONING BOARD OF APPEALS DECEMBER 15, 2003 September 20, 2004 October 25, 2004 November 22, 2004 December 20, 2004 The vote on the a MOTION resulted as follows: AYES: Sigel, Ellsworth, Krantz, Niefer, Dixon NAYS: NONE The MOTION was declared to be carried unanimously. Chairperson Sigel adjourned the December 15, 2003 meeting of the Town of Ithaca Zoning Board of Appeals at 9:05 p.m. Kirk Sigel, Chair Lori Love, Deputy Town Clerk 40