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HomeMy WebLinkAboutMN-BZA-2000-02-16 ,,,,,, REUMN - 1 ♦f�. n..._. s 200 4)=rral �`'- Pl-t- `oq ��.... . CITY C!ERK'S OFFI F CITY OF ITHACA 108 EAST GREEN STREET ITHACA, NEW YORK 14850 BOARD OF ZONING APPEALS TELEPHONE: (607)274-6508 FAX: (607)272-7348 February 16, 2000 John Powers 106 W. Buttermilk Falls Rd. Ithaca, NY 14850 John Kadar 112 W. Buttermilk Falls Rd. Ithaca, NY 14850 Margaret Rumsey 110 E . Buttermilk Falls Rd. Ithaca, NY 14850 RE : Board of Zoning Appeals meeting of February 8 and 10, 2000 Appeal Number 2446 Dear Mr. Powers, Mr. Kadar, and Ms . Rumsey: The Board of Zoning Appeals considered your request for an interpretation of the acting building commissioner' s determination regarding the issuance of a fill permit for work at 398-400 Elmira Road. The decision of the Board was as follows : Resolved, that the Board of Zoning Appeals grant the appeal requested in Appeal Number 2446 for the property at 398-400 Elmira Road, with the following findings of fact : 1 . The appellants are owners of property within 200 ' of the property where the work is being undertaken. The appellants seek an interpretation of the acting building commissioner' s decision and request that we determine that the decision issuing the fill permit, development permit, or building permit, was improper, under three different provisions of the city code . 2 . The first provision to be considered is 325-27 .E . (1) (c) [3] . That provision provides that no fill is permitted if it reduces "An Equal Opportunity Employer with an Affirmative Action Program" too Recycled Paper John Powers February 16, 2000 John Kadar Margaret Rumsey Page 2 RE : Board of Zoning Appeals meeting of February 8 and 10, 2000 Appeal Number 2446 the capacity of a floodway, increases flood heights, increases velocity or obstructs, catches or collects debris which will obstruct the flow under flood conditions in an FW-1 zone . 3 . Our first question was whether the property for which the permit was issued was in an FW-1 zone . The FW-1 zone is defined by the zoning statute as a zone delineated on a map entitled the Floodplain Zoning Map which is on file in the office of the city clerk. In fact, there is no map called the Floodplain Zoning Map on file in the office of the city clerk. However, there are provisions in the zoning code regarding the FW-1 zone and the official City of Ithaca zoning map also refers to an FW-1 zone and delineates an FW-1 zone . We determine that the map to use in discerning the boundaries of the FW-1 zone, therefore, is the official map of the City of Ithaca and we will use that map. 4 . The property owner and/or contract vendee of the property being developed, Widewaters Route 13 II Company, LLC, claims that there is no FW zone because there is no Floodplain Zoning Map. 5 . For us to hold that would be to invalidate large portions of the zoning statute that have been passed by Common Council and rather than to overturn the statute we prefer to find the meaning in the statute . Since Common Council was aware of the zoning map and the zoning map was properly promulgated when they passed the statute, and they called this zone the FW-1 zone, we are assuming that they are referring to FW-1 on the zoning map. 6 . The Floodway 1 zone is recognized by the city during testimony as being in existence, and it is recognized by Widewaters in their own site plan development map created by Costich Engineering and submitted to us . 7 . The city and Widewaters also note that 325-19 permits the extension of less restrictive zoning 30' into a more restrictive zoning area where a lot is located within two zones . 8 . However, 327-27 .E. (1) (a) [2] provides that this section shall take precedence over any other zoning or statute or ordinance to the extent that they are inconsistent . In fact, we find that this provision, 325-27 .E. (1) (a) [2] actually applies to 325-27 .E. (1) , the rules for the floodway zone and for regulating John Powers February 16, 2000 John Kadar Margaret Rumsey Page 3 RE : Board of Zoning Appeals meeting of February 8 and 10, 2000 Appeal Number 2446 the floodway zone and to the extent that the rules for the floodway zone are inconsistent with other rules in the zoning act, the rules for the floodway zone will take precedent . Therefore we will not permit the use of 325-19 to overrule the rules in the floodway zone . 9 . Widewaters ' counsel argues that 325-27 .E. (1) (a) [2] shall take precedence only in terms of delineating the zone, and when it says "this section" , "this section" refers to delineation of the floodway zone, FW-1 . We disagree, but even if the provisions of this section only meant the delineation of the floodway zone it would take precedence over 325-19 . 10 . The issue before us is the delineation of the floodway zone and whether the rules shall apply where FW-1 is strictly drawn or whether the rule shall apply in FW-1 minus 30' because of 325-19 . We determine that even if this section only takes precedence in matters concerning the delineation of the zone, that still 325-19 has no effect here . As a result, in order to issue a permit to fill in the FW-1 zone, that permit must indicate that it did not reduce the capacity of a floodway, etc . as required by 325-27 .E . (1) (c) [3] . 11 . No specific evidence was given to the acting building commissioner to make such a determination and in fact, no specific determination on that matter was made . We reviewed the evidence that was submitted exhaustively, searching for evidence that may have gone to these issues and searching for determinations within the acting building commissioner ' s permit and other documents that reflected determinations on these issues but found that there was no specific determination on these very specific issues and no specific evidence that would have supported any determination. 12 . The second point of the appellants is that a special permit is required by 325-9 . C. (1) (i) for all new construction, improvements, alterations, and repairs in an FH-1 district . In order to determine whether a special permit is required we first have to determine whether the permit was issued for and fill is being placed in the FH-1 district . 13 . The counsel for the property owner and/or contract vendee claims there is no FH-1 district because the zoning code, again, John Powers February 16, 2000 John Kadar Margaret Rumsey Page 4 RE: Board of Zoning Appeals meeting of February 8 and 10, 2000 Appeal Number 2446 in defining the FH-1 district refers to a Floodplain Zoning Map on file in the office of the city clerk. There is no map on file in the office of the city clerk with that title Floodplain Zoning Map. The City of Ithaca zoning code also does not have a zone marked FH-1 . FH-1 is referenced to in notes on the map but there is no zone delineated FH-1 . 14 . The zoning code, in addition to referring to the Floodplain Zoning Map which doesn' t exist, says that the delineation of the FH-1 zone is based upon the land areas that are subjected to inundation by the 100-year flood and are not included in areas designated as the floodway zone FW-1 . 15 . Although there is no FH-1 on the City of Ithaca zoning map and there is no Floodplain Zoning Map in the city clerk' s office, the city has consistently accepted the fact that there is in fact an FH-1 district . 16 . The acting building commissioner has represented to us that the city uses a map called the Flood Hazard Boundary Map, FHBM, to determine the bounds of the FH-1 district . The FHBM map is on file in the city clerk' s office and was created in order to permit the city to participate in the National Flood Insurance Program. It was a map based on estimates and guesses, it was not a map based on engineering studies . In 1981 it was replaced by a map called the FIRM map, which stands for Flood Insurance Rate Map, which was based on engineering studies . The FIRM map is also on file in the city clerk' s office . 17 . The zoning code states that the FH-1 zone may be modified following the establishment of a FIRM map. It appears that no official modification took place . However, the FIRM map is the best evidence of the 100-year flood plain and it is the FIRM map that we will apply in determining the FH-1 zone . 18 . Clearly the property in question is within the FH-1 zone, which is referred to as zone A9 on the FIRM map and is within the confines of the zone A9 . However, even if we use the FHBM map we would have the same result according to the FHBM map definition of the FH-1 area. 19 . The acting building commissioner relied on the FHBM map to define the FH-1 Zone . The acting building commissioner stated John Powers February 16, 2000 John Kadar Margaret Rumsey Page 5 RE : Board of Zoning Appeals meeting of February 8 and 10, 2000 Appeal Number 2446 that the proposed project was not in the FH-1 zone and issued the fill permit accordingly. 20 . When we looked at the FHBM map, we found that FH-1 area as used by the city there is similar to the FW-1 area on the city zoning map. 21 . The FH-1 area as used by the city on the FHBM map is larger than the FW-1 area on the City of Ithaca zoning map. Therefore, the property is within the FH-1 area. It is also within the city' s definition of the FHBM. Therefore, the property is within the FH-1 area. 22 . The appellants claim that a special permit is required because fill is an improvement to the property. There is no definition of improvement in the zoning code . A dictionary definition of improvement, a common sense one, is to increase the productivity or value of land. Certainly engineered fill would increase the productivity or value of land. We reject the acting building commissioner ' s use of the definition of substantial improvement in Chapter 186, to define improvement here, and we don' t think that improvement has to be improvement to a structure simply because construction, alterations, and repairs are improvements to a structure . If Common Council wanted only to consider improvements to structures they would have said so. 23 . Therefore, a special permit was required. No special permit was applied for or obtained. 24 . The appellants claimed that no development permit was issued pursuant to 186-12 of the city code, or, if one was issued belatedly, they amended their appeal to appeal from the issuance of it . At the time of the appeal no so-called development permit was issued but we will consider the building permit issued for the fill , fill permit, to be a development permit and determine whether it meets the requirements of 186-12 . 25 . A development permit was issued after this appeal was filed, after a fill permit was issued, and certainly before any special permit has been applied for or issued. John Powers February 16, 2000 John Kadar Margaret Rumsey Page 6 RE : Board of Zoning Appeals meeting of February 8 and 10, 2000 Appeal Number 2446 26 . But even if we looked at the original fill permit as a development permit to see whether it complies with the requirements of 186-12 , it doesn' t, and therefore it is not valid. 186-12 requires a development permit before the start of construction or any other development within the areas of special flood hazard, and the area of special flood hazard is defined based on the 1981 FIRM map. Clearly this property is within that area. 27 . Section 186-12 relays the plans required, the application required for the permit . Section 186-13 recites the duties of the local administrator in reviewing the permit application. One of the duties, 186-13 .A. (2) is to determine that all necessary permits from other agencies have been obtained. 28 . In fact, the special permit as required by the zoning code for any improvements in FH-1 was not obtained, and therefore the development permit was issued inappropriately and prematurely. 29 . In addition, the local administrator must review the permit application to determine if development adversely affects areas of special flood hazard. The statute specifically states that adversely affects means physical damage to the adjacent property. The appellants claim that the fill will reduce the capacity of the floodway and is likely to cause flooding and damage to their nearby properties . 30 . The statute further states that an engineering study may be required of the applicant for this purpose . As far as we can tell no engineering study was required of the applicant . The permit was issued without any requirement for an engineering study and without any specific determination that no physical damage would result to adjacent properties . 31 . After the permit was issued, a planner for the city contacted counsel for Widewaters, the property owner and/or contract vendee, and suggested that an engineering study be done or that Widewaters respond to neighboring property owners ' concerns that flood damage may result to their properties . Counsel for Widewaters ' response was to cite a case which would indicate that Widewaters would not be liable if there was damage to other property. 1 John Powers February 16, 2000 John Kadar Margaret Rumsey Page 7 RE : Board of Zoning Appeals meeting of February 8 and 10, 2000 Appeal Number 2446 32 . The permit was issued without the determination, that there would be no physical damage to adjacent property. In fact, the question arose after the permit was issued, the city voiced some concerns, but made no specific determination. 33 . It should be noted that the Flood Damage Prevention Ordinance, under section 186-17 .B. , reads "the Board of Zoning Appeals shall hear and decide appeals when it is alleged there is an error in any requirement, decision or determination made by the local administrator in the enforcement or administration of this chapter. " We relied on this to hear this part of the appeal under Section 186 . Conclusion: For those three reasons the permit for fill should be revoked and the appellants ' appeal should be granted. Vote : 3 yes votes; appeal granted. Sincerely, 477Phyllis Radke, Acting Secretary Board of Zoning Appeals PR/kb cc : Marco Marzocchi, Widewaters Route 13 II Company, LLC NOTE 1 : The date of this letter is the date of filing for the purposes of appeal of this decision. There is a statute of limitations on the filing of an Article 78 appeal of thirty (30) days from the filing of this decision. , 1 5 200E ';'�:. 1 CITY C!ERK'S OFFICE 1 January, 21 2000 Common Council City of Ithaca 108 East Green St. Ithaca, NY 14850 I am writing to urge common council to adopt a city ordinance supporting a living wage for the city of Ithaca. The goal of a living wage is to pay all full time workers a high enough wage so that they can support themselves without living in poverty. Someone that works full time should never fall below the poverty line. The hourly livable wage varies in different states and cities. A study done in Ithaca in 1998 for the Alternatives 1 Federal Credit Union estimated that a livable wage for one person in Tompkins County is $16,500 per year, or $7.94 per hour. Someone with dependents would need to earn more. Child care costs average $4,432 per year and other expenses such as food and health care would double. The present minimum wage is not enough to comfortably support individuals or families. Even with the raise to $5.15 per hour, the current minimum wage is twenty six percent lower than it was in 1980 (after correcting for inflation. ) New York State has the greatest income disparity in the country. The richest twenty percent of families have incomes twenty times as large as the poorest twenty percent of families. The poor in New York State are among the poorest in the country, with an average income of $6,787 per year compared to the national average of $9,254. Less then one third of the women who leave welfare earn more then $9, 000 in the first year. Two-thirds earn less than $6, 000, showing that a job at minimum wage is not an escape from welfare or poverty. The concept of a living wage is gaining support in city councils across the country. In most areas, contractors who receive tax money as payment would be required to pay their employees a livable wage plus a contribution to medical coverage. More then forty cities have implemented city ordinances requiring a livable wage for all city employees and contractors, and many more are debating such proposals. The Alternatives Federal Credit Union has done a thorough study of the livable wage for Tompkins County and • would be a valuable resource for Common Council as you begin to investigate this important issue. I urge you to consider and support a livable wage for the city of Ithaca and Tompkins County. Sincerely, Emily Finegan