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HomeMy WebLinkAboutBZA 3202 - 815 S Aurora Street - Decision 1 CITY OF ITHACA BOARD of ZONING APPEALS Appeal of Zoning Administrator Determination - Findings & Decision Appeal No.: 3202 Applicant: Susanne Dennis and South Hill Living Solutions, LLC Property Location: 815 S. Aurora Street Zoning District: R-3b Applicable Section of City Zoning Code: §325-8, Column 14/15; §325-20D(2)(e); §325-20E(3); §325- 20F(3)(b); and §325-29.9. Requirement for Which Determination is Requested: Rear Yard; Access Requirements; Front Yard Parking; Landscape Compliance Method; and Fall Zone and Setback Requirements for Tier Three Personal Wireless Service Facilities (PWSF). Publication Dates: December 1, 2021 and December 4, 2021. Meetings Held On: December 7, 2021; January 4, 2022; and February 1, 2022. Summary: Appeal of Susanne Dennis and South Hill Living Solutions, LLC (“Appellants”) of the Zoning Administrator’s determination that the construction of three multiple dwellings at 815 S. Aurora Street meets the requirements of §325-8, Column 14/15, Rear Yard; §325-20D(2)(e), Access Requirements; and §325-20E(3), Front Yard Parking; §325-20F(3)(b), Landscape Compliance Method for New or Enlarged Parking Areas with the Capacity for Three or More Parking Spaces on Lots within Residential Zoning Districts; and §325-29.9, Fall Zone and Setback Requirements for Tier Three Personal Wireless Service Facilities (PWSF). In April 2019, the Zoning Administrator reviewed plans for the construction of a new 66-unit student housing complex on the property located at 815 S. Aurora Street. The property is an irregularly shaped 2.85-acre lot that is also the site of an existing cell tower facility. After a complete review of project plans, the Zoning Administrator determined that the new project met all requirements of the City’s Zoning Ordinance, and no variances were required. On September 16, 2019, Susanne Dennis, owner of 117-119 Coddington Road, and Brian Grout1, owner of 809 S. Aurora Street, submitted an application to the Board of Zoning Appeals to appeal the Zoning Administrator’s decision. The appellants claimed that the proposed project did require variances for (1) rear yard; (2) siting of a parking area in the fall zone of a cell tower; and (3) the landscape compliance method for locating a new parking lot in the rear and/or side yards. The Zoning Administrator determined that the appeal could not be heard by the BZA because it was submitted more than 60 days after the decision 1 Mr. Grout has since sold his property and has been replaced by South Hill Living Solutions LLC. CITY OF ITHACA 108 E. Green Street — 3rd Floor Ithaca, NY 14850-5690 DEPARTMENT OF PLANNING, BUILDING, ZONING, & ECONOMIC DEVELOPMENT Division of Zoning Megan Wilson, Secretary to the Board of Zoning Appeals Telephone: 607-274-6550 Fax: 607-274-6558 E-Mail: mwilson@cityofithaca.org 2 on the project’s zoning compliance. The appellants filed an Article 78 proceeding to challenge the rejection of their appeal. On September 16, 2019, the Appellate Division, Third Department, ruled that the Zoning Administrator’s rejection of the appeal was improper because the initial no-variance determination had not been formally filed with the City Clerk. The Court ordered the BZA to hear the appellants’ appeal. On October 22, 2021, appellants Susanne Dennis and South Hill Living Solutions, LLC timely submitted an application to appeal the Zoning Administrator’s decision that the project at 815 S. Aurora Street is compliant with the following zoning regulations: 1) §325-8, Column 14/15, Rear Yard: The appellants assert that the average lot depth was calculated incorrectly and the project is deficient in the required rear yard. 2) §325-20D(2)(e), Access Requirements: The appellants argue that the driveway grade exceeds the 8% allowed by the Zoning Ordinance. 3) §325-20E(3), Front Yard Parking: The appellants claim that the proposed front yard parking and driveways exceed the 25% permitted by the Zoning Ordinance. 4) §325-20F(3)(b), Landscape Compliance Method: The appellants state that the proposed parking area does not meet the landscape compliance method for locating a parking area in the rear and side yards. 5) §325-29.9, Fall Zone and Setback Requirements for Tier Three Personal Wireless Service Facilities (PWSF): The project sites a parking area within the fall zone for the existing cell tower and the appellants assert that a parking area is an area of congregation and, as such, should not be permitted within the fall zone. At the December 7, 2021 Board of Zoning Appeals meeting, the Zoning Administrator and Appellants, represented by counsel and John Snyder Architects, presented their analyses of the project, and the Board held a public hearing on the appeal. The Board continued its deliberation at the January 4, 2022 and February 1, 2022 meetings. The Board of Zoning Appeals must determine whether the Zoning Administrator’s application of the above referenced sections of the Zoning Ordinance to the subject property in April 2019 was correct. Public Hearing Held On: December 7, 2021. Members present: Michael Cannon Stephanie Egan-Engels2 Steven Henderson David Barken, Chair Lauren Baron, Weaver Mancuso Brightman PLLC, spoke on behalf of the property owner and in support of the Zoning Administrator’s determination. Peter Penniman, 106 Grandview Place, spoke in opposition to the Zoning Administrator’s determination. Tompkins County Review per Section 239 -l & -m of New York State General Municipal Law: Not applicable. Environmental Review: This is a Type 2 Action under the City of Ithaca Environmental Quality Review Ordinance and the State Environmental Quality Review Act and is not subject to Environmental Review. Planning & Development Board Recommendation: 2 Member Egan-Engels moved to an alternate board member position during the pendency of this appeal and was replaced by Member Joseph Kirby. No parties objected to this substitution. 3 The Planning Board had no comments on the appeal. Ithaca Landmarks Preservation Commission Recommendation: Not applicable. Deliberation and Findings: Appeal 3202 requires the Board of Zoning Appeals to decide whether the Zoning Administrator correctly applied the Zoning Ordinance, City Code Section 325, to the project at 815 S. Aurora Street in a determination made in April 2019. Appellants Susanne Dennis and South Hill Living Solutions contend that five (5) variances, addressed individually below, should have been required in connection with the project. The BZA has considered the applicable provisions of the Zoning Ordinance; all materials submitted by Appellants and the Zoning Administrator; all materials and comments received in connection with the public hearing on this appeal held on December 7, 2021; and the presentations of the parties to this appeal. The BZA deliberated regarding this appeal at its open public meetings on December 7, 2021, January 4, 2022, and February 1, 2022. After careful consideration of the record and by majority vote of the members of the BZA, the BZA issues the following decisions: 1) §325-20D(2)(e)(2)(a), Access Requirements: Appellants assert that the driveway grade exceeds the 8% allowed by the Zoning Ordinance. Did the Zoning Administrator correctly apply the Zoning Ordinance to the calculation of the driveway grade? Yes No City Code §325-20D(2)(e)(2)(a), “Maximum driveway grades," states that “driveways to areas containing parking spaces for three or more vehicles shall be graded to form a street entry with a maximum grade of 8% for a distance of 25 feet from the curbline.” Grade is calculated as vertical rise over horizontal distance. The Zoning Administrator calculated the average grade of the driveway for the first 25 feet from the top of curb. This calculation resulted in an average grade of 6.54%. The Zoning Ordinance does not specify whether driveway grade should be calculated treating the entire driveway as one continuous segment, or whether no smaller segment within the 25-foot distance may exceed the maximum specified grade. The Board finds that the application of an average grade calculation over the entire specified distance is a reasonable approach that is consistent with language of the Zoning Ordinance. Accordingly, even though the grade of certain, very small portions of the driveway at 815 S. Aurora may exceed 8% within 25 feet of the curbline, the relevant figure to consider is the average grade over the entire 25-foot distance, which falls within the limits established by the Zoning Ordinance. The Board of Zoning Appeals therefore determines that the Zoning Administrator correctly applied the Zoning Ordinance to the calculation of driveway grade at 815 S. Aurora Street and that no variance was required. Motion by M. Cannon, seconded by J. Kirby. Vote: 4-0-0 Michael Cannon YES Steven Henderson YES Joseph Kirby YES David Barken, Chair YES 2) §325-20E(3), Front Yard Parking: Appellants assert that the proposed front yard parking and driveways exceed the 25% permitted by the Zoning Ordinance. 4 Did the Zoning Administrator correctly apply the Zoning Ordinance to the calculation of front yard parking? Yes No Section 325-20E(3) of the Zoning Ordinance provides that in “all residential districts, parking in the front yard of lots which have a width at the street line of more than 50 feet shall be restricted to an area not greater than 25% of the total area of the front yard, including turnaround and other vehicle maneuvering areas and driveways leading to garages and parking areas.” The front yard is defined in Section 325-3 as “an open space extending the full width of the lot between a main building and the front lot line, unoccupied and unobstructed by buildings or structures from the ground upward, the depth of which shall be the least distance between the front lot line and the front of such main building.” The Zoning Administrator and Appellants agree that the main building is located 22’ from the front lot line and establish a front yard line parallel to the lot line at that location. The Zoning Administrator calculated the front yard area by multiplying the full width of the lot (615.82’) by 22’ for a total front yard area of 13,548 square feet. This straight rectangular calculation assumes a consistent 22’ front yard across the entire width of the property. The Zoning Ordinance allows 25% of this area, or 3,387 square feet, to be occupied by parking, driveways, or maneuvering areas. The record reflects that the property owner’s architect submitted plans proposing 3,212 square feet of parking and driveway area, which the Zoning Administrator calculated to be 23.7% of the front yard. The Board of Zoning Appeals finds that this is an appropriate way to calculate the front yard and the allowed parking and driveway space in the front yard, as described by the Zoning Ordinance. Under the plain language of the Zoning Ordinance, the depth of a front yard is measured as “the least distance between the front lot line and the front of such main building,” and area is calculated as depth multiplied by width. Although Appellants’ calculation is not unreasonable, the Board finds that the Zoning Ordinance’s definition of depth, which assumes a single depth measurement taken at the “least distance” between the main building and lot line and consequently requires the calculation of area as a rectangle rather than an irregular shape, is controlling. Board of Zoning Appeals therefore determines that the Zoning Administrator correctly applied the Zoning Ordinance to the calculation of front yard parking at 815 S. Aurora Street and that no variance was required. Motion by D. Barken, seconded by S. Henderson Vote: 4-0-0 Michael Cannon YES Steven Henderson YES Joseph Kirby YES David Barken, Chair YES 3) §325-20F(3)(b), Landscape Compliance Method: Appellants assert that the proposed parking area does not meet the landscape compliance method for locating a parking area in the rear and side yards. Did the Zoning Administrator correctly apply the Zoning Ordinance to the determination of compliance with the Landscape Compliance Method? Yes No Section 325-20F(3) requires that parking areas in residential districts with capacity for 3 or more cars must comply with either the setback compliance method or landscape compliance method for 5 locating said parking area. Section 325-20 F (3)(b) of the City Code states that the “Planning and Development Board may, at its discretion, approve a parking area that covers more than 50% of any side or rear yard (as calculated after excluding the minimum setback areas specified for the applicable zoning district, per the District Regulations Chart), if the Board finds that mitigating factors…exist,” listing four non-exhaustive factors for the Planning and Development Board (“Planning Board”) to consider. The materials submitted in connection with this appeal demonstrate that the Planning Board discussed the application of the Landscape Compliance to this project at their August 27, 2019 meeting. As reflected in the minutes adopted for that meeting, the Planning Board considered the following in its deliberations: • A memorandum dated August 6, 2019 from the Deputy Director of Planning titled “815 S Aurora St - Landscape Compliance Method for Parking Area” • A drawing titled Landscape Compliance Plan (L103) dated 8-06-10 and prepared by Stream Collaborative, et al. • Drawings, including Landscape plans and layout plans dated 8-19-19 and prepared by Stream Collaborative, et al. • Verbal testimony from the applicant at the August 27, 2019 Planning Board meeting The Planning Board’s conclusions were memorialized in the Final Site Plan Approval Resolution dated September 24, 2019, as follows: WHEREAS: the applicant is requesting that the Planning Board review the proposed parking lot in the rear yard under the provisions of landscape compliance method in accordance with §325-20(F)(3)(b) of the City Code. The Board has accepted the landscape compliance method in consideration of the following mitigating factors: • The applicant is proposing fencing and landscape plantings to screen the parking from the adjacent property Based on the foregoing materials, the BZA finds that the Planning Board properly reviewed materials that clearly described the applicant’s request for application of the Landscape Compliance Method, and appropriately determined that the applicants had mitigated any potential negative impact. The BZA determines that the Planning Board appropriately exercised its discretion to approve a parking area under the landscape compliance method as contemplated by the Zoning Ordinance. The BZA further finds that, because the Zoning Ordinance vests sole discretion for such a decision in the Planning Board, it is beyond the authority of the Zoning Administrator to review. In consideration of the foregoing, the Board of Zoning Appeals determines that the Zoning Administrator properly accepted the application of this method to meet the requirements of §325- 20 F(3), in accordance with the procedure outlined by the Zoning Ordinance. Motion by S. Henderson, seconded by D. Barken Vote: 4-0-0 Michael Cannon YES Steven Henderson YES Joseph Kirby YES David Barken, Chair YES 4) §325-29.9, Fall Zone and Setback Requirements for Tier Three Personal Wireless Service Facilities (PWSF): The project sites a parking area within the fall zone for the existing cell tower and 6 Appellants assert that a parking area is an area of congregation and, as such, should not be permitted within the fall zone. Did the Zoning Administrator correctly apply the Zoning Ordinance to the determination that a parking area is not an area of congregation? Yes No Section 325-29.9(A) of the Zoning Ordinance, “Fall zone and setback requirements for Tier Three PWSF’s,” provides that “No habitable structure or outdoor area where people congregate shall be within a fall zone of 120% of the height of the PWSF [personal wireless service facility] or its mount.”3 Notably, the ordinance does not prohibit all uses in a fall zone. Rather, it prohibits only certain uses—namely, “habitable structures” and “outdoor areas where people congregate”— within a fall zone. The project at 815 S. Aurora proposes to put a parking area within the fall zone of a nearby cell tower, which is considered a PWSF. The Zoning Administrator determined that a parking area was not an “outdoor area where people congregate” within the meaning of the Zoning Ordinance and that no variance was required. While the Zoning Ordinance does not define “congregate”, the Zoning Administrator adopted a definition based on a dictionary definition of the word: to collect into a group or crowd; assemble (See: Exhibit C to Zoning Administrator submission). The Zoning Administrator also reviewed additional information, including the Building Division file for the 815 S. Aurora property, amendments to the Zoning Ordinance, and other sources. The results of the Zoning Administrator’s review were submitted to this Board in connection with this appeal. After conducting this research, the Zoning Administrator determined that a parking area is not a place where people typically “assemble” or “collect into a group or crowd” and is therefore not an “outdoor area where people congregate” within the meaning of the Zoning Ordinance. As reflected in the exhibits attached to the Zoning Administrator’s submission, the City and Common Council also reviewed this language during debate over a recent amendment to Article VA to reduce the size of the fall zone. The decision to reduce the size of the fall zone was made on the basis of engineering reports submitted to the city which outlined a worst-case-scenario that in the event of an actual collapse, the impacted area due to failure of the cell tower would not exceed the height of the tower, plus an additional debris area of 10-15 feet. No determination was made during that process that a parking lot was an area where people “congregate” within the meaning of the Zoning Ordinance, and Common Council did not alter the definition of “congregate.” The Planning Board also considered whether a parking area should be permitted within the cell tower fall zone for the 815 S. Aurora project. As shown on Exhibit D to the Zoning Administrator’s submission, the Planning Board included the following requirements in the site plan to address potential safety concerns: “Signage in parking lot pertaining to cell tower fall zone must be installed before a certificate of occupancy is granted”, and “Submission to the Planning Board of the tenant lease including language regarding the fall zone of the cell tower.” These requirements ensure that the parking area in question will not, in fact, be used to congregate. John Snyder Architects, writing in support of Appellants, concedes that the “topic was thoroughly reviewed by the City, the project development team, and JSA,” and states that there are “opposing interpretations of ‘congregate area’, both of which have inadequate proof of definition.” 3 A prior version of the Zoning Ordinance set the setback at twice the height of the PWSF or its mount; the parking area would fall within the setback zone either way. 7 Ultimately, the parking area at 815 S. Aurora was permitted to be constructed within the fall zone based on the Zoning Administrator’s review, the Planning Board’s Site Plan Approval conditions, and in consideration of the fall zone area reduction approved by Common Council. In light of the plain language employed in the Zoning Ordinance and the foregoing considerations, the Board of Zoning Appeals determines that a parking area is not an area of congregation within the meaning of the Zoning Ordinance. The Zoning Administrator therefore correctly determined that siting the parking area at 815 within the fall zone of a cell tower is not a violation of the Zoning Ordinance and no variance is required. Motion by J. Kirby, seconded by M. Cannon Vote: 4-0-0 Michael Cannon YES Steven Henderson YES Joseph Kirby YES David Barken, Chair YES 5) §325-8, Column 14/15, Rear Yard: Appellants assert that the average lot depth was calculated incorrectly and that the project is deficient in the required rear yard. Did the Zoning Administrator correctly apply the Zoning Ordinance to the calculation of the rear yard? Yes No City Code §325-8A(14)(a) provides that “buildings hereafter erected in each district must have a rear yard of at least the depth which is the percentage figure listed in this column. Such percentage shall be taken of the lot depth. If the two side lot lines are of unequal lengths, the rear yard percentage shall be taken of the average of the two lengths”. The Zoning Administrator and Appellants agree that 815 S. Aurora has a minimum rear yard requirement of 50 feet. They also agree that required rear yard should be measured beginning at the calculated average lot depth line and proceeding toward the interior of the lot. The Zoning Ordinance is unclear regarding how unequal lengths of an irregularly shaped lot should be calculated, and the graphic included in the Zoning Ordinance depicts a four-sided lot with parallel side lot lines. The 815 S. Aurora lot, however, has five lot lines of varying lengths intersecting at various angles, none of which are parallel. Moreover, the front lot line, although more or less straight on the northern half of the property where the buildings are located, curves slightly at the southern end of the property. As explained in his submission and depicted on Exhibit E thereto, the Zoning Administrator’s analysis treated the property as having one front lot line, one rear lot line, and three side lot lines. To apply the Zoning Ordinance, the Zoning Administrator calculated the average lot depth using lines beginning at and perpendicular to the front lot line. Depth 1 totals 342.81’, extending from a point towards the middle of the front lot line to the point of the property furthest away from the front line, which is at the intersection of the rear lot line and a side lot line. Depth 2 totals 183.52’, extending from the intersection of the front lot line and the northernmost side lot line to the point at which this depth line intersects with the lot line marking the back of the parcel at the northern end of the project. The two depths were added together and divided by two, resulting in an average lot depth calculation of 236.16’. A calculated average rear line was then drawn parallel to the front property line at the average lot depth of 236.16’. The 50’ rear yard requirement was measured from that average lot depth line. No building falls within the rear yard as calculated by this method.4 4 The Board notes, as acknowledged by John Snyder Architects on behalf of Appellants, that Exhibit E to the Zoning Administrator’s submission is based on an outdated site plan and therefore shows one building 8 Appellants present a different method of drawing the calculated rear lot line, as depicted on the submission from John Snyder Architects. While they agree with the calculation of Depth 2, they argue that Depth 1 should be measured using a perpendicular line beginning at the southernmost end of the front lot line and ending at its intersection with a line drawn from the point at the rear of the property furthest from the front line, such that both depths are measured from the endpoints of the front lot line. Average lot depth is then calculated accordingly. The calculated average rear lot line is drawn parallel to the front lot line, with the 50’ setback measured from this line. Due to the curvature of the front lot line and the different starting point selected by Appellants, Building C fails to meet the rear setback requirement by several feet if appellants’ method is employed. Both the method employed by the Zoning Administrator and the method employed by Appellants are reasonable applications of the Zoning Ordinance to an irregularly shaped lot. There may be other, equally reasonable ways to apply the Zoning Ordinance to such lots. The existence of multiple reasonable interpretations of the Zoning Ordinance is the result of ambiguity in the Zoning Ordinance itself, which does not clearly address how lot depths should be calculated on irregularly shaped lots such as 815 S. Aurora Street. The Board adopts the Zoning Administrator’s method with respect to this property. The Board of Zoning Appeals therefore determines that the Zoning Administrator correctly applied the Zoning Ordinance to the calculation of required rear yard at 815 S. Aurora Street and that no variance was required. Motion by D. Barken, seconded by J. Kirby Vote: 3-1-0 Michael Cannon YES Steven Henderson NO Joseph Kirby YES David Barken, Chair YES Determination of the BZA: The BZA, taking into consideration the City of Ithaca Zoning Ordinance; the written submissions of the Zoning Administrator, Appellants, and the property owner; and the testimony provided at the December 7, 2021 and January 4, 2022 meetings, finds that the Zoning Administrator correctly applied the Zoning Ordinance to the proposed project at 815 S. Aurora Street. The BZA therefore upholds the Zoning Administrator’s determination that no area variances are required to construct the project, as proposed and approved in 2019. ___________________________ February 1, 2022 Megan Wilson, Zoning Administrator Date Secretary, Board of Zoning Appeals extending slightly further than permitted. Appellants’ submission notes that the site plan was subsequently adjusted to comply with the Zoning Administrator’s calculations.