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HomeMy WebLinkAboutZoning Appeal 3048 - 201 College Ave. - Zoning Determination Appeal - Planning Board Appeal - 09-22-16C i t y o f I t h a c a P L A N N I N G A N D D E V E L O P M E N T B O A R D To: City of Ithaca Board of Zoning Appeals From: City of Ithaca Planning and Development Board Date: September 22, 2016 Re: Zoning Determination Regarding Maximum Facade Length Requirements for the MU-1 Zone as Applied to the Construction Proposal for 201 College Avenue Along Bool Street Enclosed please find the Planning and Development Board’s appeal of the Director of Zoning Administration’s Determination regarding the proposed project at 201 College Avenue dated September12,2016. At its September 19, 2016 special meeting, the Planning Board agreed, by a 6-0 vote, that the enclosed document accurately states the appeal that was previously authorized, by a 6-1 vote, at the Planning Board’s August 23, 2016 regular meeting. Our appeal is argued in two parts. Part 1 presents why we believe that the Collegetown Area Form Districts (CAFD) restricts the street facade facing Bool Street to a length of 75 feet for this proposed project. This conclusion is unambiguous whether one broadly interprets the intent of CAFD as a whole, or whether one narrowly considers only the directly relevant text and illustrations. No other conclusion is internally consistent with the spirit and with the letter of the CAFD text. Part 2 rebuts the conclusion of the Director of Zoning Administration’s Determination. We present and refute each argument made in the Determination. By doing so, we clarify how we reached a conclusion in direct opposition to that of the Determination. A paramount concern of the Planning Board is ensuring that all approved site plans are compliant with zoning law. When, as is the case here, differences exist regarding the correct interpretation of zoning, the Planning Board is unable to fulfill its mandate. We must then appeal to the Board of Zoning Appeals for resolution. We thank the Board of Zoning Appeals for its careful review of this matter. Members of the Planning and Development Board are available as needed to present our appeal orally to the BZA at its October12,2016 meeting, and to answer any questions. PART ONE A. Introduction: The “Intent” Clause Of the Collegetown Area Form Districts. This “Intent” clause for the Collegetown Area Form Districts reads as follows: The intent of this section is to implement the 2009 Collegetown Urban Plan & Conceptual Design Guidelines, endorsed by the Common Council on August 5, 2009. This section establishes the zoning regulations necessary to guide implementation of the City-endorsed vision for the redevelopment of property within the Collegetown area. Specifically, the Collegetown Area Form Districts are intended to: (1) Encourage exceptional urban design and high-quality construction; (2) Regulate elements of building form to ensure a consistent transition between districts; (3) Concentrate additional development in the central areas of Collegetown and protect the character of the established residential neighborhoods; (4) Preserve and enhance green space that is a vital ecological, recreational, and aesthetic component of the urban environment; and (5) Promote attractive, walkable neighborhoods that prioritize accommodation of modes of transportation other than single-occupancy automobiles. The referenced 2009 Collegetown plan gives great emphasis to fostering a development pattern characterized by careful transitions between proposed zoning districts. It proposes transitioning gradually between the high-density urban core and the existing traditional wood-framed residential neighborhoods on Collegetown’s periphery. For example, the Collegetown plan emphasizes that: Notable design failings [of Collegetown development in the 1980s and 1990s] identified during the public process included increased heights without mitigating setbacks or changes in material, and their canyon effects; severe and abrupt transitions from high density areas to established lower-density neighborhoods of owner-occupied houses; and lack of pedestrian-oriented features. (From the 2009 Collegetown Urban Plan & Conceptual Design Guidelines, Part 2 Page 5.12) and also notes that: Sudden transitions in building use, scale, and character create a disjointed urban form, particularly when they occur between mixed-use and residential areas. (From the 2009 Collegetown Urban Plan & Conceptual Design Guidelines, Part 2 Page 5.7) As a solution to these problems, the plan states that: Careful consideration has been given to creating a system that will allow graceful transitions from high height areas to low-height areas as well as to the manner in which buildings meet the ground plane. (From the 2009 Collegetown Urban Plan & Conceptual Design Guidelines, Part 2 Page 6.7) When the emerging Collegetown plan was under review by the Planning Board and Common Council, however, it was the opinion of those two bodies that what is now — 2 — — 3 — Part 2 of the plan (produced by consultant Goody Clancy) had not sufficiently achieved its stated goal of the “graceful transitions” mentioned above. Therefore, Part 1 of the plan was created by those two bodies to further promote careful gradations between districts, compatibility with existing residential neighborhoods on the edge of Collegetown, and respect for historic resources. Part 1 (which modified and partially superseded Part 2) also emphasizes the east side of the 400 block of College Avenue — which features a beautifully coordinated ensemble of old and new buildings, the new displaying abstract design references to the old — as a model for future Collegetown development: The exemplary row of buildings currently defining the east side of College Avenue between Oak Avenue and Dryden Road is praised in the Collegetown Vision Statement as being “a striking example of excellence in architectural design within an existing urban context,” and this opinion is broadly shared by the Ithaca community. [...] Even the 2008 Goody Clancy Plan & Guidelines states, “Several valuable lessons can be learned from the east side of the 400 block of College Avenue and should be included in the design or the renovation of buildings in the mixed-use core.” (From the 2009 Collegetown Urban Plan & Conceptual Design Guidelines, Part 1 Pages 31 and 32) All of the above concerns, goals and ideas played key roles in the creation of the Collegetown Area Form Districts. B. Interpretation of the Collegetown Area Form Districts Should Be Informed by the Document as a Whole: Districts CR-1,CR-2 & CR-3. (1). The “Purpose & Intent” Introduction to These Districts. The opening text here could not be clearer: The Collegetown Residential 1-3 (CR-1, CR-2, CR-3) districts contain predominantly residential structures occupied as single-family homes, as duplexes, or as multiple residences often rented by university students. The intent is to maintain the existing housing stock. Significant redevelopment within these districts is neither anticipated nor encouraged. Any new construction shall be similar in form and scale, and the zoning requirements of these districts are intended to protect the character of the established residential neighborhoods. Mandatory architectural elements, such as front porches and pitched roofs, ensure that new construction is in keeping with the existing built environment. [...] The “existing housing stock” in the areas zoned CR-1, CR-2 and CR-3 consists overwhelmingly of traditional wood-frame gabled houses with porches, so it is very clear that this is the basic architectural form to which “new construction shall be similar in form and scale.” Any interpretation of the subsequent details contained the Collegetown Residential zoning section that fundamentally conflicts with this fundamental “Purpose & Intent” is almost certainly a misinterpretation. (2). The Term “Street Facade” Clarified by Its Immediate Context. THE “ACTIVATION” PROVISIONS OF CR-1 AND CR-2. (The “Activation” texts in CR-1 and CR- 2 are identical, so only the CR-2 “Activation” illustration is shown here at the right.) Because the massing of residential structures is inherently restricted here by use (CR-1 being essentially single- family residential, and CR-2 essentially two-family residential), there is no provision regarding “Facade length, maximum” under the “STREET FACADE” heading. Why? Because given the use limitations, any such restriction would be redundant. But the “DOORS AND ENTRIES” section here provides clear insight into the meaning of “street facade.” After informing us that there must be a minimum of one functioning entry on the street-facing facade, the text goes on to explain that: For corner lots, one functioning entry is required on a street-facing facade. Clearly, the authors of the quoted language above believe that a building on a corner lot has two street- facing facades, and want to avoid a requirement that there be a “functioning entry” on each of these two street- facing facades, which would be irrational for a single-family house and unnecessary even for most duplexes. So the authors have added the quoted qualifying language to explain that, on a corner lot, only one functioning entry is required on “a street-facing facade” (i.e., on only one of the two such street-facing facades). This must be the intended meaning, because otherwise this extra sentence about corner lots would be superfluous. (Furthermore, on a basic grammatical level, the usage “a street-facing facade” — using the article “a” instead of “the” — only makes sense if there is more than one such facade from which to choose. That is just basic English.) On a corner lot, the remaining heading — “FRONT PORCH” — pertains to the “one functioning entry” required on “a street-facing facade” (i.e., on only one of the two street-facing facades). See a parallel situation in the CR-4 district, discussed below. Absolutely no conflict or inconsistency exists between all the above and the — 4 — CR-2 — 5 — “Activation” components of the CR-2 project approved by the Planning Board at the corner of Dryden Road and Oneida Place in 2014, contrary to the impression conveyed by language in the September 12 Zoning Determination. (3). Insight Provided by the Code’s First Use of “Facade Length, Max.” THE “ACTIVATION” PROVISIONS OF CR-3. Because the CR-3 district — unlike CR-1 or CR-2 — allows multiple resi- dences, its use provisions provide no upper limit on building size. If a prop- erty owner owned and consolidated lots extending along an entire City block, therefore, the use provisions would allow one massive building to extend along an entire block face. But this would directly conflict with the Collegetown Residential district “Purpose & Intent,” which again states “new construction shall be similar in form and scale” to the existing neighborhood character, which consists overwhelmingly of traditional gabled wood-frame houses standing on individual lots, with front yards and side yards. Therefore, as one progresses through the Collegetown Area Form Districts document, the CR-3 district is the first one in which its authors have added a “Facade length, max” provision under the “STREET FACADE” heading within the “Activation” section. (The CR-3 “Activation” section is reproduced above left, with added red color emphasis on the aforementioned particular provision). Note the following: (1) The portion of the building explicitly included within the dimension comprises its entire street facade, from one end to the other, regardless of substantial indentations in the basic building mass. So indentations in the basic building mass are not excluded from the “street facade” dimension. (2) The CR-3 language under the “DOORS AND ENTRIES” heading is exactly the same as in CR-1 and CR-2, and again only makes sense if there are two “street-facing facades.” (3) The crystal-clear “Purpose & Intent” language of the Collegetown Residential districts — to “protect the character of the established CR-3 red color emphasis added — 6 — residential neighborhoods” that predominantly consist of traditional wood- framed houses — is only fulfilled if, on a corner lot, the 45-foot maximum facade length applies to both street facades, since both directly face the streets and sidewalks of the public realm. Under this reading of the Collegetown Residential districts language, everything is consistent, each provision mutually reinforces other provisions, and the whole makes sense. What is the point, then, of forcing a reading that directly conflicts with the stated intent? Why would the authors of the Collegetown zoning code carefully protect existing neighborhood character along one street, while potentially allowing one massive block-long facade to be built just around the corner on a cross-street? Who would decide which was the “protected” street and which was the “unprotected” street? Why would the authors of the Collegetown Area Form Districts sabotage their own stated intentions by allowing such eventualities? Why adopt a reading that breaks apart the coherency of the whole? C. The Collegetown Residential District CR-4 Provides Further Context. (1). The “Purpose & Intent” Introduction to This District. Here is the introduction, in full: The Collegetown Residential 4 district primarily contains multi-family dwelling units, and while single-family and two-family residential uses are permitted, it is expected that multi- family residential will remain the predominant use. The intent is this will be a medium- density residential district, consistent with the vision outlined in the 2009 Collegetown Urban Plan & Conceptual Design Guidelines to concentrate additional development in the central areas of Collegetown. This district serves as an essential bridge, both in density and built form, between the Collegetown Residential 1-3 and Mixed Use districts. Redevelopment is encouraged, but it is essential that new construction meet the district requirements to ensure a consistent transition between the higher-density and lower-density zoning districts. District regulations permit buildings of up to 4 stories and 45 feet in height; a building must meet both requirements. Maximum lot coverage by buildings is greater than in the Collegetown Residential Districts 1-3 but not as high as allowed in the Mixed Use Districts. In terms of form, the district requirements provide property owners with choices between architectural features intended to create buildings compatible with those in adjacent zoning districts. Note the repeated insistence, stated in multiple ways throughout the passage, on the basic principle of ensuring “a consistent transition between the higher-density and lower-density zoning districts”: (1) CR-4 is a “medium-density residential district.” (2) It “serves as an essential bridge, both in density and built form” between Collegetown Residential 1-3 and the Mixed-Use districts. (3) Lot coverage in intermediate between Collegetown Residential 1-3 and the Mixed-Use districts. (4) Building form is to be “compatible with those in adjacent districts.” — 7 — (2). The “Activation” Provisions of CR-4. Consistent with the above principle, the “Facade length, max” provision under the “STREET FACADE” heading in the “Activation” section now allows a maximum facade length of 100 feet for row houses as well as 45 feet for all other structures. This provision is keyed as on the “Activation” section drawing (shown at right). Once again, the dimension extends continuously from the left end to the right end of the entire illustrated building, even though the depicted structure has three substantial indentations. These indentations are not excluded from the measurement; they do not divide the structure into separately-measured segments; rather, they are integrally included within the overall “Facade length, max” dimension. Once again there is the clarification that, on a corner lot, a “functioning entry” is only required on “a street-facing facade” — i.e., on one, but not both, street-facing facades. Then the text under the “PORCH, STOOP OR RECESSED ENTRY” heading explicitly ties the required “front porch, stoop or recessed entry” to each provided functional entry. (3). CR-4’s “Facade Length,Max”Provision Understood in Context. The chart displayed on the following page shows three of the most important character-defining zoning parameters across the spectrum of the Collegetown form districts. The carefully-crafted, gradual, consistent transition between lower-density and higher-density Collegetown is self-apparent. (A similar gradual transition is found among other parameters that could have been included in the chart, such as yard set-back requirements.) But this careful, consistent, steady gradation — which conforms exactly to “intent” statements found throughout the Collegetown Area Form Districts — exists ONLY if the “STREET FACADE Facade length, max” applies to all facades facing streets on a corner lot. On the other hand, any interpretation that insists that the “STREET FACADE Facade CR-4 red color emphasis added — 8 — length, max” parameter only applies to ONE of a corner lot’s street facades simply blows apart these gradual transitions. For one thing, who knows which street is which, since the Collegetown zoning is absolutely silent concerning any language that would distinguish “more important streets” from “less important streets,” or “primary streets” from “secondary streets,” or anything of the like. More importantly, the latter interpretation would blow apart the “careful, consistent, steady gradation” described above. Suddenly, in CR-3, facade length would be carefully controlled on one of the two streets facing a corner lot, but completely unlimited along the other street! In other words, a condition appropriate to MU-2 would suddenly intrude into CR-3, bringing the potential for new context-smashing block- long buildings to be built on one side of corner lots in an area whose “Purpose & Intent” section states: [...] The intent is to maintain the existing housing stock. Significant redevelopment within these districts is neither anticipated nor encouraged. Any new construction shall be similar in form and scale, and the zoning requirements of these districts are intended to protect the character of the established residential neighborhoods. [...] Under one reading, everything within the code is internally consistent, and in complete conformance with stated intent. Under a second interpretation, inconsistencies and contradictions pop up, and the stated intent is undermined. Which of these is most likely to represent the legislative intent of the Collegetown Area Form Districts, read and understood as a whole? D. The District at Issue: The Mixed-Use District MU-1. (1). Insight Provided by the “Siting” Provisions of MU-1. Under the “PARKING LOCATION” heading within this section, the wording once again clearly uses the term “street-facing facades” to refer to both streets facing a corner lot. The concluding provision here reads: CR-1 CR-2 CR-3 CR-4 MU-1 MU-2 Height (stories/feet), max 3*/ 35 3*/ 35 3*/ 35 4 / 45 5 / 70 6 / 80 Lot coverage by buildings, max 30% 35% 40% 50% 70%100% (except for req’d rear yard) STREET FACADE Facade length, max none stated [but inherently limited as a single-family residential district] none stated [but inherently limited as a single-family / two-family residential district] 45’ 100’for rowhouses 45’all other structures 150’for rowhouses 75’ all other structures none stated [with permitted uses allowing unlimited length] a consistent transition between the lower-density and higher-density zoning districts * Top Story Limitation – A habitable 3rd story in CR-1, CR-2, and CR-3 districts must be fully contained within a pitched roof. — 9 — Internal or underground parking must be wrapped by residential on street-facing facades (except for entries/exits) and may not be visible from a public street. Accomplishment of the requirement that internal or underground parking “may not be visible from a public street” requires that, on a corner lot, the wrapping “by residential on street-facing facades” occur on both public streets faced by this lot. Once again, on a corner lot, the term “street-facing facades” must include both street facades. (2). The “Activation” Provisions of MU-1. ON THE “STREET FACADE”REQUIREMENTS. The “Facade length, max” provision under the “STREET FACADE” heading in the “Activation” section (illustrated at left) now allows a maximum facade length of 150 feet for row houses and 75 feet for all other structures, allowing greater density than in CR-4, but less density than in MU-2 (where facade length is unlimited). Paralleling preceding districts, this provision is labeled , and the depicted dimension extends from one extreme end to the other of the illustrated structure. Once again, indentations within the building mass are not excluded from, nor do they modify, the end-to-end dimension . This is true even though the depicted structure includes one shallow indentation and one quite deep indentation (shown in Figure I, below right; the color yellow has been added to the indented facade segments for clarity). ON THE “DOORS AND ENTRIES” REQUIREMENTS. Early in the Planning Board’s review of the 201 College Avenue project, its project architect stated his understanding that three functioning street-facing entries were needed along Bool Street, due to the Collegetown Area Form Districts’ requirement that there be no more than 35’ between “functioning street-facing entries.” The requirement in question is found within the “Activation” section (reproduced at upper left) under the “DOORS AND ENTRIES” heading, where it is labeled . The project architect expressed a preference that there be only one central entrance on Bool Street, rather than three, because providing three required MU-1 red and purple color emphasis added FIGURE I. — 10 — the construction of retaining walls and additional paved walks that would significantly reduce space for plantings along that facade. Planning Board members agreed, and so an appeal to the Board of Zoning Appeals regarding this matter was prepared by the project applicant. The City of Ithaca Building Division description of this appeal appears below. (The appeal also included a request for a smaller back yard, which is not relevant to this discussion; the ellipsis indicates where that portion of the appeal appeared.) APPEAL #3025 — 201 College Ave.: Area Variance Appeal of Noah Demarest, STREAM Collaborative, on behalf of Visum Development Group for an Area Variance from Section 325-8, Column 14/15, Rear Yard, and 325-45.2 G. (1) (C), Functioning Entry Distance, requirements of the Zoning Ordinance. The applicant proposes to demolish existing building located at 201 College Avenue and construct a 5-story, 44-unit apartment building. [ ... ] The proposed building is located on the corner of College Avenue and Bool Street. The building facade along Bool Street is required to have a maximum of 35’ between functioning entries. The applicant proposes to install one main entry along Bool Street in a recessed courtyard, approximately 57’ from the building corner. Due to the sloping topography of Bool Street, adding 2 additional entry points would require installing one elevated entry and steps, and one excavated entry to an already constrained site condition. The property at 201 College Avenue is located in a MU-1 Zoning District where the proposed apartment building is a permitted use; however, Section 325-38 requires variances to be granted before a Building Permit can be issued. So the Building Division, when writing the above Zoning Appeal description, believed that provision of the “Activation” section of the MU-1 district applied to “the building facade along Bool Street” of the 201 College Avenue project, and therefore stated that no Building Permit could be issued until that requirement was PER THE BUILDING DIVISION DESCRIPTION OF ZONING APPEAL #3025, THE MU-1 “ACTIVATION” PROVISION APPLIES TO THE BOOL STREET FACADE OF THE 201 COLLEGE AVE. PROJECT PER THE ZONING DETERMINATION DATED SEPTEMBER 12, 2016, THE MU-1 “ACTIVATION” PROVISION APPLIES TO THE COLLEGE AVENUE FACADE OF THE 201 COLLEGE AVE. PROJECT FIGURE II.FIGURE III. — 11 — either met or a Zoning Variance regarding it was approved by the BZA. (Subsequently, after the variance request was tabled at the June 7, 2016 BZA meeting, the Bool Street facade of the 201 College Avenue project was modified to have three “functioning street-facing entries,” thereby bringing the project into compliance with MU-1 “Activation” requirement and avoiding the need for a variance.) Figure II at the bottom left of the previous page is a visualization of the MU-1 “Activation” label being applied to the Bool Street facade, in accordance with the Building Division’s own language in Zoning Appeal #3025. Figure III at the bottom right of the previous page then visualizes the MU-1 “Activation” label being applied to the College Avenue facade, per the Zoning Determination dated September 12, 2016. Clearly, these two Building Division interpretations regarding the same 201 College Avenue project are in direct conflict, since the September12 Zoning Determination asserts that “In the MU-1 zone ... a building on a corner lot is only mandated to meet ‘Activation’ requirements on one street.” This is illustrative of the series of conflicts and contradictions that would flow from any acceptance of the September12 Zoning Determination. If it were accepted: —Then,as repeatedly and specifically pointed out throughout the preceding pages, the wording of multiple individual phases and clauses within the Collegetown Area Form Districts would be in direct conflict with the Determination’s conclusion. —Then,the fulfillment of the Form District’s “Intent & Purpose” clauses would be seriously undermined, so that the document as a whole would no longer be doing what the document states it intends to do. —Then,in particular, the Form District’s stated intent “to ensure a consistent transition between the higher-density and lower-density zoning districts” (see chart on this document’s Page 8 above) would be subject to inexplicable anomalies on any corner lot — for example, potential block- long buildings in CR-3. —Then,the pieces of the Collegetown Area Form Districts would no longer fit together into a coherent whole. But all this can be avoided by simply reading the Collegetown Area Form Districts document as it was clearly intended to be read. If the “Activation” provisions within all six of Collegetown’s districts apply to both street facades on a corner lot, then the whole document makes sense. Then the whole informs its parts, and the parts reinforce the whole. Then the document’s stated intentions are fulfilled. Then the Collegetown Area Form Districts stands as a well-crafted, thoroughly-considered and internally-consistent whole. — 12 — E. And One Final Point From the Mixed-Use MU-2 District. (1). Insight Provided by its Final Clause. The MU-2 section of the Collegetown Area Form Districts ends as follows: (3) Siting Exceptions The siting requirements for the MU-2 district are subject to the following exceptions: [...] (c) All street-facing facades on corner lots shall be considered front facades. This language confirms, rather than contradicts, all that has been written above. Once again, it is established that corner lots have more than one “street-facing facade” — and the “Activation” provisions we have been discussing at length deal repeatedly with the terms “street-facing facade” and “street facade.” The term “front facade,” on the other hand, never appears in the text within any of the “Activation” sections for any of the six Collegetown form districts. It does, however, occur repeatedly in “Siting” sections with respect to garage and parking setbacks. The asterisk relating to the “Siting Exceptions” (note that this heading does not say “Activation Exceptions”) also appears only within the MU-2 “Siting” section, and not within the MU-2 “Activation” section, and therefore clearly has nothing to do with “Activation” requirements. PART TWO Part One above presents and analyzes internal evidence demonstrating that the Collegetown Area Form Districts (hereafter, “CAFD”) limits the Bool Street facade of this project to 75 feet, a conclusion opposite that of the September 12 Determination of the Director of Zoning Administra- tion (hereafter, the “Determination”). Part Two below presents and rebuts each argument made in the Determination, thereby clarifying where and how the Planning Board’s analysis differs. Determination Argument #1: A corner lot has only one street facade. The “Definitions” section of the Determination (bottom, page 2) correctly notes that the term “facade” is not defined in the CAFD document. The Determination then cites the following Wikipedia definition: A [facade] is generally one exterior side of a building, usually, but not always, the front. The Determination then proceeds to treat corner buildings as having only one street facade. Two responses show this assertion to be incorrect. First Response to Argument #1:Dictionary definition. A standard dictionary is the best source of a definition for the term “facade”; — 13 — Wikipedia is not an authoritative source. The Random House Dictionary provides two definitions in an architectural context: noun 1. Architecture. a. the front of a building, especially an imposing or decorative one. b. any side of a building facing a public way or space and finished accordingly. Either definition clearly characterizes the project as having two front facades. Sup- pose we adopt definition “a.” above. The CAFD “Siting” illustration for MU-1 (CAFD Page 22, right) clearly indicates that both street-facing sides of a building are “front” sides. Thus, both street-facing sides would meet definition “a.” of a facade. Suppose instead that we adopt definition “b.” Clearly both street-facing sides of the building face a public way, i.e., a street. Thus, both sides would meet definition “b.” of a facade. Second Response to Argument #1:Use of the article “a”in CAFD. The English language uses two distinct articles to indicate a singular as opposed to a plural noun. English uses the article “the” in the former case, and the article “a” in the latter case. CAFD repeatedly uses the article “a” before “street facade,” or other- wise makes clear that street facades are plural. We list numerous instances below: Page 11, Page 13, Page 15, Page 19: “Activation” boxes: For corner lots, one functioning entry is required on a street-facing facade. Page 18, Page 22, Page 24: “Siting” boxes: Internal or underground parking must be wrapped by residential on street- facing facades (except for entries/exits) and may not be visible from a public street. Page 25, bottom: All street-facing facades on corner lots shall be considered front facades. (bold italics added to show use of plural nouns) In total, eight references to multiple facades on a site are included in CAFD. In particular, the first expression “for corner lots, one functioning entry is required on a street facing facade” makes clear, and indeed only has meaning if, corner lots have two street-facing facades. Determination Argument #2: In the MU-1 Zone, as in the CR-1,CR-2, CR-3, and CR-4 zones, a building on a corner lot is only mandated to meet “Activation”requirements on one street. — 14 — Response to Argument #2: This assertion is not supported by any text in CAFD. This assertion is an invented claim unsupported by any text within CAFD. The “Activation” text on CAFD Page 23 simply refers to the facade length of a street facade. No street facades are excluded from this maximum. Determination Argument #3:The activation illustrations consistently locate “Activation”requirements on only one of two streets in corner lot situations. First Response to Argument #3: Unlabeled parts of illustrations bear no meaning. Argument #3 is true, but is irrelevant. The “Activation” illustration on CAFD Page 23 (reproduced as Figure IV below) shows a building on a corner. The left-facing facade is labeled to indicate how the limits referenced in the text are to be measured. In particular, label A shows the measurement of a facade length, and label C shows the measurement of the distance between functioning entries. Other parts of the illustration are unlabeled and thus have no meaning. To see this, consider label D, which points to the left entry of the two entries on the front of the smaller building. Label D indicates, according to the text,“recessed entry required for each functional entry.” Note that the adjacent right entry on the same building face is not labeled D. Following the logic of the Determination, we would conclude that a left-side entry must be recessed because it is labeled D, but a right-side entry need not be recessed because it is unlabeled. Clearly this is a silly conclusion because the text clearly states “recessed entry required for each functional entry.” The absence of a label on right entry and the presence of the label D text “required for each functional entry” are in direct opposition. Furthermore, suppose one advances the logic that the absence of a label removes the requirement of the text, as proposed by the Determination. If we look at the larger corner building in the same illustration, we notice that none of its entrances are labeled D. By the Determination reasoning, we would conclude that corner buildings need no recessed entries at all. In short, the reasoning of the Determination would conclude that only left doors on non-corner lots need be recessed. Clearly this is a tortured argument, suggesting that the FIGURE IV. — 15 — Determination reasoning defies any logic. In contrast, the obvious and intuitive interpretation of labels is that they indicate examples of how the text is activated on the illustration. Not every object, be it an entry or a facade, need be labeled for the object to be governed by the CAFD text. Thus, although only the left-hand-side street facade of the corner building is labeled, the right-hand-side facade is no less of a street facade. And the text clearly limits street facades to 75 feet for non-row-house buildings. The determination does correctly note that the “Siting” diagrams for corner lots label both street-facing sides as “front.” This is because, absent such clarifying labels, one could reasonably conclude that the second street-side is a “side” rather than a “front” yard. No such ambiguity exists either for street facades or for entries. Second Response to Argument #3: It would be arbitrary and capricious to assign the maximum facade length requirement to one street-facing side of a building, and not to the other. The Determination conclusion that only one street facade is limited in length raises the question of which facade is the one to be limited. If the intent of the CAFD was to only limit the length of one street facade, but not the other, then we would need some guidance on which side was to be limited. No such guidance exists. It should be noted that every one of the 24 drawings shown under the respective “Lot Coverage,” “Siting,” “Height” and “Activation” headings, for each one of the six Collegetown districts, shows one generic “street” at an angle on the left and another generic “street” at an opposite angle on the right. Because these drawings regulate districts sprinkled all over Collegetown, no generically labeled “street” on any of these drawings can be assumed to represent any specific named street, avenue, road or place. Third Response to Argument #3: Allowing one corner facade, but not the other, to have unlimited length defies common sense and is contrary to the intent of CAFD. The “Purpose & Intent” of CAFD stated on its Page 21 states: [...] The purpose is to create a dynamic urban environment in which uses reinforce each other and promote an attractive, walkable neighborhood. [...] Required form elements, such as a maximum distance between entries and a maximum length of blank wall, activate the street-level of buildings to engage pedestrians through this highly-traveled section of Collegetown. Given this intent, clearly the framers of CAFD intended streetscapes to be have a high degree of walkability and visual interest. Such an intent would be achieved by — 16 — limiting the length of facades on any street-facing facade. Under the Determination, one of the two street facades on a corner building could be of unlimited length. Theoretically, should a mile-long block exist, the Determination would allow a single facade of a mile in length. Such an interpretation is nonsensical and counter to the intent of the CAFD. Clearly the interpretation that facade length applies to both facades is much more consistent with the intent of CAFD, as well as more consistent with the text. In the case of the 201 College Avenue project, the facade length maximum on Bool Street could potentially result in two separate structures being built on the lot, the western one sitting lower on the sloped site than the eastern one, thereby showing improved contextuality (in terms of both massing and siting) with its built environment. Determination Argument #4: The building has two facades on Bool Street. The Determination states on its Page 3: On Bool Street, two facades, each measuring approximately 52 feet, have a 10 foot recession separating them, giving the appearance of two buildings. And on its Page 6: As noted above, there is no definition of facade in the CAFD, meaning that building length and facade length could reasonably be two separate measurements. As such, the building could have two facades each measuring less than 75’ on Bool Street. Response to Argument #4: The Determination is inventing definitions of facade measurement and ignoring the applicable measurement made clear in CAFD. The MU-1 “Activation” illustration on CAFD Page 23 makes clear that the measurement of a facade, labeled A, is from corner-to-corner of the total extent of the building. The depicted building shows recessions, which are clearly included as part of measurement A. The notion that a recession should not be counted as part of a facade length, and further that a recession somehow “resets” a facade is totally invented and utterly absent within the text of CAFD. The facade length of a street facade in MU-1 is as shown in the illustration: the full distance from corner-to-corner, inclusive of recessions. This is a definition — but it is a visual, rather than a verbal one. Note that the “Activation” illustrations for CR-4 and CR-3 also show corner-to-corner measurements for facade length, inclusive of recessions. In any case, the notion that a recession somehow ends a facade is arbitrary, capricious, and fictional. How much of a recession is needed? Is eight feet enough? How about eight inches? Without any guidance in the text, we must be guided by the three “Activation” illustrations which indicate facade lengths as corner-to-corner, — 17 — inclusive of recessions. Finally, the Determination makes note of a building found on Page 5.18 of Part Two of the 2009 Collegetown Urban Plan & Conceptual Design Guidelines. This illustration was one of many ideas considered in the formulation of the CAFD, but was not included in the CAFD document. Thus, it represents just one of the many ideas considered in the legislative process, and is irrelevant to the discussion here. Furthermore, portions of the earlier Part Two of the Collegetown plan were significantly modified (and in places superseded) by that plan’s later Part One, which stressed the concepts of careful gradations between districts and contextual development patterns. Determination Argument #5: Ambiguity in the language used must be resolved in favor of the property owner. Page 6 of the Determination notes that the court case Hess Reality v. Planning Common of the Town of Rotterdam states: Zoning regulations must be strictly construed against the municipality which has enacted and seeks to enforce them, and any ambiguity in the language used must be resolved in favor of the property owner. Response to Argument #5: Ambiguity must be resolved only after attempting to effectuate the intention of the legislature. Although it is true that ambiguity resolves in favor of the property owner, ambiguity applies only after the obligation to interpret a statute in a manner that effectuates the intent of the legislative body that enacted the statute: [T]he governing rule of statutory construction is that courts are obligated to interpret a statute to effectuate the intent of the Legislature, and when the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the [*3]words used" (People v Williams, 19 NY3d 100, 103 [2012], quoting People v Finnegan, 85 NY2d 53, 58 [1995]). In this case, the clear intent of the legislation, when CAFD is read both in detail and as a whole, is to limit all non-row-house street facade lengths in the MU-1 district (including the two street facade lengths on corner lots) to a maximum of 75 feet. ,,nT -° H-a CITY OF ITHACA ,��'"O)'"°`° °°'1�`` 108 E.Green Street—3rd Floor Ithaca,NY 14850-5690 `�'" , .'rts. °i DEPARTMENT OF PLANNING,BUILDING,ZONING,& ECONOMIC DEVELOPMENT '1:40‘...F7-1,44a-r77,,,_11.;1, Division of Zoning yA /4:0,,,° PHYLLIS RADKE, DIRECTOR OF ZONING ADMINISTRATION 4pORATEt Telephone: Planning&Development-607-274-6550 E-Mail: cpyott@cityofithaca.org CITY OF ITHACA BOARD of ZONING APPEALS Appeal of Zoning Determination — Findings & Decision Applicant: City of Ithaca Planning and Development Board ked O�'ce G�tiy Ge"..6 r0 Appeal No.: 3048 ,�s.° ', Zoning District: MU-1 Collegetown Area Form District (CAFD) Meeting Held On: October 17, 2016 Property Location: 201 College Avenue Publication Dates: October 11, 2016 &October 12, 2016 (The Ithaca Journal) Summary: The City of Ithaca Planning and Development Board ("Planning Board") sought review of the Director of Zoning Administration's determination concerning facade-length requirements for buildings constructed in the MU-1 Collegetown Area Form District (CAFD). The Director of Zoning Administration determined the façade length requirement for the proposed construction of a 5-story apartment building at 201 College Avenue on the corner of College Avenue and Bool Street is compliant with CAFD zoning requirements regulating façade length. At its 8/23/16 meeting,the Planning Board granted the project at 201 College Avenue Final Site Plan Approval, but conditioned Final Site Plan Approval on resolution of the Planning Board's appeal of the Director of Zoning Administration's determination. The Board of Zoning Appeals voted to uphold the Director of Zoning Administration's determination. Type of Appeal: Appeal to reverse Director of Zoning Administration's "Determination Regarding Maximum Facade Length Requirements of the MU-1 Zone as Applied to the Construction Proposal for 201 College Avenue," dated September 12, 2016. Applicable Section of City Zoning Code: 325-45.2 G. (1), Activation, "Street Façade," A.2 Public Hearing Held On: October 17,2016. The Public Hearing was heard with interested parties speaking on both issues. No officials outside the municipality spoke. Members Present: Steven Beer, Chair Teresa Deschanes Moriah Tebor Susan Cummings,Alternate Environmental Review: Type 1. The City of Ithaca Planning and Development Board determines the proposed project will result in no significant impact on the environment and that a Negative Declaration for purposes of Article 8 of the Environmental Conservation Law be filed in accordance with the provisions of Part 617 of the State Environmental Quality Review Act. Planning& Development Board Recommendation: The City of Ithaca Planning and Development Board is appealing the Zoning Determination of Phyllis Radke, Director of Zoning Administration, which concludes that a proposed apartment project located on 201 College Avenue complies with façade length requirements of the MU-1 Collegetown Area Form District( CAFD), as applied to its Bool Street side. Tompkins County Review per Section 239-I&-m of New York State General Municipal Law: N/A Deliberations&Findings of Fact: CUMMINGS: I am not comfortable with the Zoning Director's determination. I am very troubled about the "siting" which does not come under Activation–and the definition the Director uses for façade allowing indentations. I live across from the reconstruction home and it has loading docks and other indentations, but it is a continuous façade. I would hope the determination would be solely on the number of street fronts. CHAIR BEER: Should we uphold or overturn the Zoning Director's determination? If we endorse it, should we include a definition for façade or decide solely on the number of street fronts? CUMMINGS: Well, I believe the determination has to do with the number of street facades required. Is that what the City Attorney believes? The determination has to do with only the number of actual street fronts and that's the meat. CITY ATTORNEY LAVINE: The primary basis for Phyllis' determination is the number of streets required to have façades and not whether indentations are a concern. On the alternative, right at the end of her determination, it speaks to her belief that indentations could make multiple façades — but this is not the primary basis of her determination. CUMMINGS: The language cited in the determination did not say it was in "Siting." It was under the "Activation" —for me,that means I will not be able to support her determination. CITY ATTORNEY LAVINE: In Phyllis'determination, p.6,she cites the City Code. She uses"Siting." She quotes City Code, Number 3, "Siting Exception." DESCHANES: She did use "Siting" in her determination. In my mind,she was referencing"Activation." CUMMINGS: Yes. CITY ATTORNEY LAVINE: She was showing that the ordinance treats corners differently when it wants to. DESCHANES: I believe the Planning Board's appeal is not timely. The Planning Board had notice for some time, before they acted on it. If they had brought this up earlier, there would be much less of a burden on the developer. That's why there is such a short time period allowed in zoning actions, because it can hurt all parties involved. So I think that's unfortunate. I also think I agree 100%with the interpretation, if we were to reach the merits. I agree with the Planning Board, because there was more evidence. We heard from a lot a people in writing that it was meant to apply to both streets. However, because the Director of Zoning made a different interpretation, it is a very clear there is ambiguity in the Ordinance. Because it is ambiguous,we are required to take the least restrictive requirement. Is that correct? 2 CITY ATTORNEY LAVINE: Courts like to say that zoning is an abrogation of the Common Law, which means, before zoning, people could use their land in any manner they saw fit. Once there was zoning, it tells people what they cannot do with their property,which they would have otherwise been able to do. That's why courts strictly construe zoning to ensure owners are being clearly told what they cannot do with their property. Of course, if there is ambiguity,the courts will construe that ambiguity in favor of the property owner. DESCHANES: What about the concern that the determination would apply to all zones that don't have the "siting exception"for corners, like the MU-2 zone. Is this a valid concern? I don't think we can do anything about it, but I do think it makes a strong case for why Common Council should clean up the language as soon as possible. CITY ATTORNEY LAVINE: There is no distinguishing factor between the various zones. Yes, that could be a concern and a reason for a Code clean-up. I should be clear that the Board's determination on this appeal would not necessarily bind other determinations, but it would be a precedent for them. CHAIR BEER: The Board of Zoning Appeals does not issue rulings that have precedent. Whatever we decide for 201 College Avenue does not apply to other properties in the future. CITY ATTORNEY LAVINE: Because this is an appeal to a Zoning Determination, it is a precedent for the issue before you. It is true that it relates to a particular property, but I hesitate to say it has no precedence. I would say it does not bind future action; but I would also say that it does create a precedent. CHAIR BEER: I accept your legalese. One thing that strikes me is that everyone has some expertise. The Planning Board is an expert at design and features like that. People considering expert opinion of someone who has been functioning in zoning for years, perhaps decades and it is hard for me to consider that expertise should be disregarded. CUMMINGS: Looking at the language, specifically, Phyllis' language "Siting exception"just pointed out the heading "Siting Exception." One page before, on page 5, is the siting diagram. But the language says, more importantly, where a similar activation location illustration is employed in the MU-2, as employed in the MU-1, the following siting exceptions are listed. That's where I am getting that Phyllis has called this an activation issue:this picture on page 5. CITY ATTORNEY LAviNE: But what you just read says "where a similar activation location illustration is employed . . ." CUMMINGS: But don't you think that means "activation?" These illustrations are "descriptors" — it's a picture. CITY ATTORNEY LAVINE: Yes, it is a picture. But"Siting Exceptions" are not a picture. "Siting Exception C" is a one-line sentence. Phyllis, I think it is fair to say, is probably referring to the fact that the MU-2 also contains activation requirements with an illustration and, unlike the MU-1, it contains an exception for corner lots under "Siting." She is showing that both the MU-1 and MU-2 zones contain activation requirements with an illustration, but only the MU-2 contains an exception specific to corner lots under "Siting." CUMMINGS: But it is under"Siting" and the text says"activation;"and on this whole new ordinance where you are trying to do form-based code and you are defining things through graphics,you asked a question 3 about visual and you said, "What do you mean by saying visual?" So we are using graphics for the first time in our zoning code to define permissible legal action; and graphics are very challenging and specific and so we are in the process of reading graphics here, to understand. I wonder? Point of law? I am wondering if that is legal language. This type of language or representation — is it legal language? CIT(ATTORNEY LAVINE: Graphics can be legally binding, if it says they are to be. CUMMINGS: Okay, well it's a whole new arena to try and do it. Okay,your answer is,yes,graphics can be legally binding. DESCHANES: I think that the defense was that the Planning Board said the MU-2 has a siting exception and nothing has an activation exception. Phyllis interpreted it the other way. But,to me,for a trained Zoning Director to have interpreted this section as she did has to mean it is ambiguous. I find the Planning Board persuasive on this, but I think we have to consider Phyllis' interpretation as a valid interpretation on this —that the Ordinance only requires activation requirements on corner lots in the MU-2 zone. CUMMINGS: That it is actually ambiguity in the other arenas. DESCHANES: That it only requires activation on corner lots in the MU-2 zone and I think the Planning Board was more persuasive on this, but we can only listen to the Planning Board's interpretation if there is no ambiguity. In case of an ambiguity, we have to be less restrictive; and I think I agree with Steve, Phyllis is trained to give expert opinion. At the very least, there are two ways to interpret it — and that's an ambiguity. So I think we are bound to take the less restrictive one. CUMMINGS: Then what are the future implications of accepting the Zoning Director's determination as binding, in the future — interpretations of corner lots? Radke: Amendments must be made, so that the Ordinance is clear. CUMMINGS: I think, it is a new Ordinance and it is understandable a number of things aren't working; and we have identified a number of these: ambiguity, inadequate,or not working. But the corner lots trouble me. It has always been in zoning that for corner lots you've got different restrictions; you've got two faces. CHAIR BEER: Clearly, it is the responsibility of the Department of Planning and Development to suggest to Common Council how the Zoning Ordinance can be clarified;and I think there are enough representatives of staff here that they have heard these arguments and will take this into consideration. So, I think we should decide. If we decide this case—in 62 days? What is the pleasure of the Board? TEBOR: This is the kind of case I hate to weigh in on. There are legal principles of the case, knowing there is an ambiguity. There is a difference of opinion in interpretation between those working on the plan and the Zoning Director. When there is an ambiguity, it must come down on the side of the property owner. As the City Attorney said, it is a derogation of property rights and puts the developer at a disadvantage, if we were to overturn the Zoning Director's interpretation, which is her province, day-in and day-out, to administer. While I find the Planning Board's argument to be well-written and persuasive in some respects, the submittal from the property owner's legal counsel was very clear — the timeliness factor and other considerations. I am troubled about this case, because I know it is not the province of this Board to correct mistakes made by the legislators, with all their good intentions, and that the Planning Board might have made in their pursuit. It is not our problem to correct those wrongs and it stands as an inadvertent mistake. I disclose that I live in Bryant Park. I didn't vote for densification or the form-based 4 code. But this decision was made. I feel the Zoning Director's interpretation should be upheld and the Planning Board's appeal denied. DEscHANEs: Do you think this appeal was timely? TEBOR: No. DESCHANES: Should we determine on both issues? TEBOR: Let's put it this way. I found the argument put forth by the developer's counsel to be highly persuasive on the timeliness question. The Planning Board clearly had notice of the Zoning Director's zoning decision of the interpretation more than 60 days before the July 2016 Planning Board hearing. Putting that aside, the Director of Zoning Administration is charged with interpreting the Zoning Ordinance, day-in and day-out, and she made a reasonable determination in her estimation of what the meaning of the Code is. It has created an ambiguity and — because of this —we must decide in favor of the property owner. CHAIR BEER: Can we manage with an informal motion, or is a well-documented motion to be considered? City Attorney Lavine: You can do it orally. CUMMINGS: We need some direction on notice. I don't see it as a legal determination and respective to City Staff and promulgated so the public can have it. CITY ATTORNEY LAviNE: The zoning determination is when such a determination is filed in the City Clerk's Office. CUMMINGS: Addressed to the person seeking the determination? CITY ATTORNEY LAVINE: Yes. CHAIR BEER: Oral is okay? Motion: A motion to grant the variance request was made by Teresa Deschanes. DESCHANES: In the matter of Appeal#3048,201 College Avenue,and the Zoning Director's determination that the project meets the facade length requirements, I move to deny the Planning Board's Appeal and uphold the Zoning Director's determination for the following reasons: 1. The Planning Board's Appeal was not timely. Planning Board told they knew about the determination several months ago but did not consider the bases or support in the code and left the clock running. The Planning Board had notice. 2. In the alternative, if their Appeal were to be found timely, However to the extent that the appeal was in fact timely,' based on merit because zoning is a derogation of property rights. Where there is ambiguity in the Code, we have to construe the Code in the least restrictive way so that it is most favorable to the property owner. This represents the interpretation of the Zoning Director even though the Planning Board had a very persuasive presentation on the consistency of the code , the history of the ordinance, and what perhaps the Code means and different from the Zoning Director. We also heard testimony from several people in the City Government and on the Committee that wrote this Code that it might have been interpreted in a different way and more consistent with the 5 Code in general. However, the Zoning Director is the person who day in and day out makes zoning decisions for the City and is highly trained to make these and is in fact that she made this interpretation, very strong evidence that this Code is ambiguous and could have been written in a much clearer way. Because of this ambiguity, we are going to support the Director of Zoning's interpretation that is less restrictive. For these reasons we have to deny the Appeal. Motion to Second: Moriah Tebor CHAIR BEER: Any discussion? CITY ATTORNEY LAVINE: Correction: "However, to the extent that the appeal was in fact timely. . ." Amendment accepted by Deschanes,seconded by Tebor. CHAIR BEER: We should add: "The Public Hearing was heard with interested parties speaking on both issues. No officials outside the municipality spoke. A"Yes"vote is in favor of the Motion." Vote: Steven Beer, Chair: Yes Teresa Deschanes: Yes Moriah Tebor: Yes Susan Cummings: No Determination of BZA Based on the Above Factors: The Appeal was denied. l iuluitM.�!, November 16, 2016 Secret. , Boar. of 'oning Appeals Date Dir- t. if Zoning ,dministration A correction made by City Attorney Lavine to Deschanes' motion to deny Planning Board's Appeal. Amendment accepted by Deschanes and seconded by Tebor. 6