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