Loading...
HomeMy WebLinkAboutZBA Minutes 2009-06-15 TOWN OF ITHACA ZONING BOARD OF APPEALS NOTICE OF PUBLIC HEARINGS Monday, June 15 , 2009 215 N . Tioga Street 7 : 00 P. M . APPEAL of Lawrence lacovelli , Owner, requesting an area variance from the requirements of Chapter 270 , Section 84 of the Town of Ithaca Code allowing a 2- lot subdivision resulting in parcels with insufficient lot depth , Town of Ithaca Tax Parcel #54 . -5 -43 & 45 , 227 & 231 Pennsylvania Ave , High Density Residential ( HDR) Zone . APPEAL of Nancy Battistella , Owner, requesting a modification of an existing use variance from the requirements of Chapter 270 , Section 66 of the Town of Ithaca Code permitting land to be added to the property that is the subject of an existing use variance . " Property located at 1 .551 Slaterville Rd , Tax Parcel # 56 . -2- 1 . 1 , Medium Density Residential ( MDR ) Zone . Assistance will be provided for individuals with special needs , upon request . Such requests should be made not less than 48 hours prior to the public hearings . Bruce W . Bates Director of Code Enforcement 607-273 - 1783 Dated : June 8 , 2009 Published : June 11 , 2009 FILE DATE 02 �.j da7f Town of Ithaca ZONING BOARD OF APPEALS June 15 , 2009 7 : 00 p . m . Board Members Present : Kirk Sigel , Chair; Ron Krantz , Jim Niefer, David Mountin Harry Ellsworth , Excused : Susan Mann , Alternate . Staff Present : Bruce W . Bates , Director of Code Enforcement , Susan Brock , Attorney for the Town , Carrie Coates Whitmore , First Deputy Town Clerk Others : Lawrence lacovelli , Ed Mazza , Jutta and Joseph lacovelli , Peter Stein , Nancy and Roger Battistella . Chairman Sigel opened the meeting at 7 : 05 p . m . and stated the appeals would be taken in the order listed on the public hearing notice . APPEAL of Lawrence lacovelli , Owner, requesting an area variance from the requirements of Chapter 270 , Section 84 of the Town of Ithaca Code allowing a 2- lot subdivision resulting in parcels with insufficient lot depth , Town of Ithaca Tax Parcel #54. -5-43 & 45 , 227 & 231 Pennsylvania Ave, High Density Residential (HDR ) Zone . Mr. Larry lacovelli and Mr. Ed Mazza appeared before the Board . Mr. Mazza gave the Board a brief overview of the appeal . He noted that the subdivision received preliminary and final approval from the Planning Board . Mr. Mazza went on to explain that Mr. lacovelli was not able to correct the lot depth deficiency and stated that the lot depth deficiency had been in existence since the original subdivision . _ Chairperson Sigel confirmed that the houses to be built on the lots will meet all setback and building code requirements . The Board briefly discussed the lot depth of each lot and how lot depth is measured . Chairperson Sigel stated that the subdivision improves the lot deficiencies of each lot and felt that it was an all -around improvement ; the Board concurred . Chairperson Sigel then solicited comments from the Board and staff . Mr. Bates stated that his office as not seen drawings regarding the proposed houses , but he assumed that the houses would be compliant . Mr, lacovelli responded that the houses would be in compliance . Chairperson Sigel opened the public hearing at 7 : 12 p . m . Zoning Board of Appeals Minutes June 15 , 2009 Approved Ms . Jutta lacovelli appeared before the Board and expressed concern regarding the occupancy of the two new houses . She asked if the houses would be occupied by 6 or 8 students per house . Mr. Bates explained that the proposal is for two two -family homes and the Town Code allows a dwelling unit to be occupied by two unrelated persons . Ms . lacovelli commented that students have friends so 4 students in a house means 8 people in reality . Board Member Ellsworth sympathized with Ms . lacovelli because he was experiencing the same problem in his neighborhood . Ms . lacovelli cautioned the Board with regard to moving forward with further growth and population density in the neighborhood . Attorney Brock stated that the Town received a complaint a year ago that a particular property had more unrelated persons living there than allowed under zoning . The landlord was contact and a sufficient number of people were removed to bring the property into compliance . She went on to say that if complaints are made the Town will investigate the complaint and work with the property owner to bring the property into compliance . Mr. Peter Stein appeared before the Board and stated that over the years he and Pat Leary have been contacted by residents of Pennsylvania and Kendall Avenues with regard to the quality of life in the area . Mr. Stein and Ms . Leary have spent a lot of time walking in the neighborhood and he can attest to the fact that the high density of the neighborhood brings down its quality of life . He understands that there is a history of variances having been granted , which has allowed the density of the area to increase . Mr. Stein urged the Board to proceed with caution and not to do anything to increase density in the area . Chairperson Sigel thanked Mr. Stein for his comments and stated that the Board is aware of the issues in the area . He said that it has been quite some time since the Board has granted a variance to allow more occupancy in a house than permitted by Code . Chairperson Sigel clarified that Mr, lacovelli ' s variance was for deficient lot depth ; the variance would not alter the number of people permitted to live in the houses . Chairperson Sigel asked if the houses were two -family or single -family . Mr. lacovelli responded that one house contained three bedrooms and the other house had four persons . Chairperson Sigel commented that the occupancy increase was minimal , increasing from 7 total occupants to 8 total occupants . He went on to say that he did not see justification to restrict Mr, lacovelli to a single -family home based on the modest area variance before the Board . Chairperson Sigel asked if there was anyone else who wished to address the Board . There being none , he closed the public hearing at 7 : 21 p . m . Page 2 of 9 Zoning Board of Appeals Minutes June 15 , 2009 Approved Board Member Mountin commented that most of the houses that have been rebuilt in the area have plain architecture . Mr. lacovelli agreed and said that his houses will not be designed by the same architect . Board Member Mountin wanted to see houses built that will fit in with the neighborhood character. The Board and Mr. Bates continued discussion regarding occupancy problems in the neighborhood . With no further discussion , Chairperson Sigel moved to make a negative determination of environmental significance based upon the comments made by staff in the Part II environmental assessment form . Board Member Niefer seconded . Vote—carried unanimously . ZB RESOLUTION NO. 2009=018a Area Variance. Lawrence lacovelli, 227 and 231 Pennsylvania Ave, Tax Parcel Nos. 54. =5-43 and 54. -545 MOTION made by Kirk Sigel, seconded by James Niefer. RESOLVED, in the appeal of Lawrence lacovelli, that this Board makes a negative determination of environmental significance for the reasons stated in the Part 11 environmental assessment form prepared by Town staff. A vote on the motion resulted as follows: AYES: Sigel, Ellsworth, Krantz, Niefer, Mountin. NAYS: None. The motion was declared to be carried unanimously. Chairperson Sigel moved to grant the appeal with conditions regarding lot depth , lot compliance , and demolition of the house at 231 Pennsylvania Ave , and with the findings that all requirements of an area variance had been satisfied ; specifically listing how each criterion was met . Board Member Niefer seconded . Vote—carried . ZB RESOLUTION NO. 2009=019a Area Variance. Lawrence lacovelli, 227 and 231 Pennsylvania Ave, Tax Parcel Nos. 54. -543 and 54. =5-45 MOTION made by Kirk Sigel, seconded by James Niefer. RESOLVED, that the Board grants the appeal of Lawrence lacovelli, requesting area variances from the requirements of Chapter 270 Section 84 of the Town of Ithaca Code allowing a 2-lot subdivision resulting in parcels with insufficient lot depth, Town of Ithaca Tax Parcel Nos. 54. -5-43 and 54. -5-45, which is 227 and 231 Pennsylvania Avenue, High Density Residential zone with the following: Page 3 of 9 Zoning Board of Appeals Minutes June 15 , 2009 Approved Conditions 1 . That the setback for the lot marked Parcel A, which is parcel 54. -5-45, have a lot depth no less than 80 feet and the lot marked Parcel B, which is parcel 54. -5-43, have a lot depth no less than 103 feet, 2. That the houses built on both lots must conform in every way to the zoning regulations as far as yard setback, lot coverage area, height, etc. , and 3. That the house at 231 Pennsylvania Avenue be removed because it is too close to the new side lot line. Findings That the benefit to the applicant does outweigh any detriment to the health, safety and welfare of the communities, specifically. 1 . That the benefit that the applicant wishes to achieve, which is that of creating two lots, which are as conforming as possible, cannot be met by any other means feasible, 2. That there will not be undesirable change in the neighborhood character or to nearby properties given that two houses currently exist and when finished, two houses will again exist, 3. That the request is not substantial and in fact the deficiencies of both lots are being improved, 4. That the request will not have adverse physical or environmental effects, and 5. That the alleged difficulty is not self-created given that the lots have existed in the present form for many years. A vote on the motion resulted as follows: AYES: Sigel, Krantz, Niefer, Mountin. NAYS: Ellsworth. The motion was declared to be carried. APPEAL of Nancy Battistella , Owner, requesting a modification of an existing use variance from the requirements of Chapter 270, Section 66 of the Town of Ithaca Code permitting land to be added to the property that is the subject of an existing use variance. " Property located at 1551 Slaterville Rd , Tax Parcel # 56 . -2-1 . 1 , Medium Density Residential ( MDR ) Zone. Page 4 of 9 Zoning Board of Appeals Minutes June 15 , 2009 Approved Nancy and Roger Battistella appeared before the Board and offered to answer any questions the Board may have . Chairperson Sigel. asked who currently owned the house in question . Ms . Battistella responded that she purchased the house in September 2008 from the Pirro2S . Chairperson Sigel asked if they were going to be selling the house . Ms . Battistella answered that they are currently renting the house . Chairperson Sigel noted that it appeared as if the Winery has quite a bit of land that is not used for growing grapes . He wondered why the addition of the small parcel is needed to grow grapes . Mr. Battistella responded that the small parcel is contiguous to the particular variety of grapes that they want to grow and the slope of the land allows for air drainage . Board Member Mountin asked what the setback requirements are . He expressed concern for the side lot deficiency being continued . Mr. Bates explained that it would not be a problem because the required side yard setback is 15 feet . Chairperson Sigel explained that the criteria for a use variance are strict and the applicant must meet all of the criteria . He asked if the applicant had any financial evidence to provide to the Board indicating that that addition of the land would make a difference as far as profitability . Mr. Battistella responded that the winery would save $ 8 , 000 to $ 10 , 000 a year by not having to purchase grapes . Chairperson Sigel appreciated that , but he explained that that assumption in a residential zone is that money is not earned on the property . Mr. Battistella explained that it is a matter of economic hardship because the winery is not self-supporting under the existing situation . Board Member Ellsworth commented that the application would increase farming activities detrimental to the residential zone . Mr. Battistella did not think it impacted negatively on the existing neighborhood and believed that it enhanced the neighborhood . He said that they were maintaining open space and vistas . Board Member Ellsworth asked if the Battistellas had talked with their neighbors about the variance . Mr. Battistella responded that they posted the legal notice and there was no one interested . Chairperson Sigel added that the Battistellas and the City are the immediate neighbors . Board Member Krantz argued that incorporating a residential lot into the winery is not detrimental to the neighborhood . Chairperson Sigel expressed the opinion that adding an acre to an existing winery does not change the character of the neighborhood because the winery is an allowed use since it was granted an area variance . Chairperson Sigel asked if Mr. Battistella was testifying that the winery does not make a profit . He responded yes . Attorney Brock followed up by asking if that includes the events that are held at the winery . Mr. Battistella responded yes . Chairperson Sigel Page 5 of 9 Zoning Board of Appeals Minutes June 15 , 2009 Approved stated that it would be helpful if the Battistellas could provide the Board with a profit and loss statement showing that the winery does not make a profit . The Board and the applicants continued to discuss what was necessary to meet criteria 1 : cannot realize a reasonable return –substantial as shown by competent financial evidence . Board Member Krantz suggested the argument that the winery as it is does not make a substantial profit unless it incorporates some of the residential property . Chairperson Sigel was not sure if that argument would hold up in court if it was challenged . Attorney Brock stated that she did a lot of research and could not find a case like this one—where there is an existing use variance and someone sought to add new property from a different parcel to the existing use variance . She thought that the Board could look at the modification of the use variance to include the additional acre within the use variance and that they would be able to make reasonable arguments as to why it is proper to include everything and not just the one acre . Chairperson Sigel did not think the applicant could meet the use variance criteria if the Board looked solely at the addition of one acre . He felt that they needed to look at both parcels entirely and apply the test to the winery as a whole . The Board discussed what financial evidence could be submitted to meet the criteria . Chairperson Sigel felt that submission of a profit/loss statement covering the last few years would be adequate financial evidence . Board Member Ellsworth asked how the Board should proceed . Attorney Brock suggested that the Board look at all the criteria because the applicant must meet all of the criteria . The Board should not ask the applicant to come back with financial evidence if the applicant does not meet one of the other criteria because the Board would not be able to approve the application . Board Member Ellsworth felt that the applicant met criteria 2 and 3 . He thought that the Board should discuss whether the alleged hardship had been self-created . Chairperson Sigel stated that a strict interpretation would be that the hardship was self-created because the applicant purchased the lot that they want to change the use of ; he commented that this was the classic definition of self-created hardship . Board Member Krantz argued that the hardship was there to start with ; the applicant purchased the lot to try to remedy the hardship . Attorney Brock stated that the concept the Board is looking at has not been looked at by the courts . She cautioned the Board that they were breaking new ground . She added that there are many cases where people bought property knowing that the use was not allowed by zoning and then asked for a use variance ; the courts determined that to be a self-created hardship . Attorney Brock went on to explain that a use variance is appropriate where an individual has a property and over time the neighborhood or conditions change and the individual is not able to make a reasonable return on any of Page 6 of 9 Zoning Board of Appeals Minutes June 15 , 2009 Approved the permitted uses . Board Member Ellsworth concluded that the Board should look at the two properties in their entirety . Mr. Battistella explained that the northwest boundary line only has a 2 -foot setback . He said that they are not able to put a fire escape on the northwest side of the building because of the 2 foot setback . Attorney Brock suggested that the hardship was created by the Zoning Board in a way back in 1985 when it granted the original use variance in that it should have required the lot line to have been moved ; however, the applicants asked for the lot line to be drawn where it was . Chairperson Sigel asked if the property was subdivided in 1985 or if the house and its lot were always separate . Mr. Battistella responded that the lot has always been separate . Chairperson Sigel clarified that the applicant did not create the 2 foot setback . He said that the 2 foot setback is a hardship of maintenance . Board Member Mountin stated that he appreciated the fact that the Board was working hard with regard to the appeal ; he felt that the Six Mile Creek Winery was an important business to the community . Attorney Brock explained that no matter how meritorious a particular application is , the Board has to follow the criteria ; otherwise it becomes much harder when there is a use variance application for something Board feels should not be allowed . She reiterated that the criteria need to be applied across the board fairly to all applicants . Chairperson Sigel asked the Board if they wanted to discuss any of the criteria . He noted that some Board Members has expressed that the application does not have an impact on neighborhood character; Board Member Niefer and Board Member Mountin agreed . Attorney Brock stated that the applicant needs to come back before the Board next month with their financial evidence and there has to be another public hearing ; comments made by the Board at this meeting are its initial reaction . Board Member Krantz asked if the approval could be conditioned upon submission of financial evidence . Chairperson Sigel said that he wanted to see the financial information . He explained that the financial hardship criterion was not a simple criterion . The applicant has to submit evidence that the Board determines represents not a reasonable financial return . Chairperson Sigel said if the Board agrees it wants to see the financial evidence , then the Board needs to wait to vote until they see the evidence . Board Member Niefer asked if the Board has always been strict with regard to seeing financial evidence . He recalled having taken people ' s word for financial evidence in the past . He wanted to make sure that the Board would make the same request in the future . Attorney Brock felt that it was appropriate to ask for financial information . Chairperson Sigel commented that a number of years ago the Board was not as careful in gathering the evidence that should be gathered , but in recent cases the Board has required financial evidence . Page 7 of 9 Zoning Board of Appeals Minutes June 15 , 2009 Approved The Board and Mr. and Mrs . Battistella discussed what financial evidence could be submitted . Mrs . Battistella asked if it would be appropriate to submit the portion of her income taxes related to the farm . The Board thought that would be appropriate and reaffirmed it was necessary to have the financial evidence physically presented to them . Mr. Battistella asked where they go from here . Chairperson Sigel responded that they would need to come back before the Board at its next meeting , July 20th . He asked Mr. Bates that the appeal be first on the agenda . Chairperson Sigel then asked the Board if they had any issues with the other requirements . The Board indicated that they did not . Attorney Brock suggested that the Board open the public hearing . Chairperson Sigel opened the public hearing at 8 : 15 p . m . ; he stated that the public hearing would remain open since the appeal was being adjourned until the July 20 , 2009 Zoning Board of Appeals meeting . Chairperson Sigel wrapped up discussion by suggesting that Mr. and Mrs . Battistella provide Schedule F , and any other schedule showing profits/losses , for the last two years of the their signed tax forms . Mr. and Mrs . Battistella agreed . Chairperson Sigel moved to adjourn the appeal until the July 20 , 2009 meeting . Board Member Ellsworth seconded . Vote—carried . ZB RESOLUTION NO. 2009-020: Adjournment of Use Variance Appeal, Nancy Battistella, 1551 Slaterville Rd, Tax Parcel No. 56. =2- 1 . 1 MOVED by Kirk Sigel, seconded by Harry Ellsworth. RESOLVED, that this Board adjourns the appeal of Nancy Battistella until the July 20, 2009 Zoning Board of Appeals meeting. A vote on the motion resulted as follows: AYES: Sigel, Ellsworth, Niefer, Mountin. NAYS: Krantz. The motion was declared to be carried unanimously. Board Member Krantz stated that the way the Board dealt with the appeal troubled him , which is why he voted against it . He said that he has seen the County and Board get really excited in a negative way about dealing with farmland . It seemed to him that they go overboard so that farmland will not become residential . In his opinion , people who want to develop farmland go through a lot of nonsense and it is almost impossible . The process makes it difficult for people who want to keep Ithaca green . Chairperson Sigel commented that it is difficult to do anything that is not allowed . Attorney Brock added that the Battistella 's chose to put their agricultural use in the middle of a dense residential area . Page 8 of 9 Zoning Board of Appeals Minutes June 15 , 2009 Approved Board Member Ellsworth commented that it seemed like Attorney Brock was getting nervous at a couple of points . Board Member Krantz stated that he sees what the Town is trying to do and he understands it , but at the same time it irritates him . Attorney Brock explained that the Town is trying to protect the Board ' s decision and make sure the decision is made on a sound basis . She said that she tries not to push the Board in one direction or another, but tries to make sure the Board is looking at the criteria before them . .Adjournment Chairperson Sigel adjourned the meeting at 8 : 24 p . m . Kirk Sigel , Chairperso Ah IF Page 9 of 9 FILE DATE ADOPTED RESOLUTION ZB RESOLUTION NO , 2009-018 Area Variance Lawrence lacovelli 227 and 231 Pennsylvania Ave Tax Parcel Nos. 54. -5-43 and 54. -5-45 June 15 , 2009 MOTION made by Kirk Sigel , seconded by James Niefer. RESOLVED , in the appeal of Lawrence lacovelli , that this Board makes a negative determination of environmental significance for the reasons stated in the Part II environmental assessment form prepared by Town staff . A vote on the motion resulted as follows : AYES : Sigel , Ellsworth , Krantz , Niefer, Mountin . NAYS : None . The motion was declared to be carried unanimously . STATE OF NEW YORK) COUNTY OF TOMPKINS) SS . TOWN OF ITHACA : I , Carrie Coates Whitmore , First Deputy Town Clerk of the Town of Ithaca , New York , do hereby certify that the resolution is an exact copy of the same adopted by the Zoning Board of Appeals of the Town of Ithaca at a regular meeting on the 15th day of June , 2009 . First Deputy Town) Clerk FILE DATE ADOPTED RESOLUTION ZB RESOLUTION NO , 2009-019 Area Variance Lawrence lacovelli 227 and 231 Pennsylvania Ave Tax Parcel Nos . 54. -543 and 54. -5-45 June 15 , 2009 MOTION made by Kirk Sigel , seconded by James Niefer. RESOLVED , that the Board grants the appeal of Lawrence lacovelli , requesting area variances from the requirements of Chapter 270 Section 84 of the Town of Ithaca Code allowing a 2 - lot subdivision resulting in parcels with insufficient lot depth , Town of Ithaca Tax Parcel Nos . 54 . -5 -43 and 54 . -5 -45 , which is 227 and 231 Pennsylvania Avenue , High Density Residential zone with the following : Conditions 1 . That the setback for the lot marked Parcel A , which is parcel 54 . -5 -45 , have a lot depth no less than 80 feet and the lot marked Parcel B , which is parcel 54 . -5 -43 , have a lot depth no less than 103 feet , 2 . That the houses built on both lots must conform in every way to the zoning regulations as far as yard setback , lot coverage area , height , etc . , and 3 . That the house at 231 Pennsylvania Avenue be removed because it is too close to the new side lot line . Findings That the benefit to the applicant does outweigh any detriment to the health , safety and welfare of the communities , specifically : 1 . That the benefit that the applicant wishes to achieve , which is that of creating two lots , which are as conforming as possible , cannot be met by any other means feasible , 2 . That there will not be undesirable change in the neighborhood character or to nearby properties given that two houses currently exist and when finished , two houses will again exist , 3 . That the request is not substantial and in fact the deficiencies of both lots are being improved , 4 . That the request will not have adverse physical or environmental effects , and ZB RESOLUTION NO . 2009-019 PAGE 2 5 . That the alleged difficulty is not self-created given that the lots have existed in the present form for many years . A vote on the motion resulted as follows : AYES : Sigel , Krantz , Niefer, Mountin . NAYS : Ellsworth . The motion was declared to be carried . STATE OF NEW YORK) COUNTY OF TOMPKINS) SS : TOWN OF ITHACA : I , Carrie Coates Whitmore , First Deputy Town Clerk of the Town of Ithaca , New York , do hereby certify that the resolution is an exact copy of the same adopted by the Zoning Board of Appeals of the Town of Ithaca at a regular meeting on the 15th day of June , 2009 . First Deputy Town Clerk FILE DATE ADOPTED RESOLUTION ZB RESOLUTION NO . 2009=020 Adjournment of Use Variance Appeal Nancy Battistella 1551 Slaterville Rd Tax Parcel No . 56. =2-1 . 1 June 15 , 2009 MOVED by Kirk Sigel , seconded by Harry Ellsworth . RESOLVED , that this Board adjourns the appeal of Nancy Battistella until the July 20 , 2009 Zoning Board of Appeals meeting . A vote on the motion resulted as follows : AYES : Sigel , Ellsworth , Niefer, Mountin . NAYS : Krantz . The motion was declared to be carried unanimously . STATE OF NEW YORK) COUNTY OF TOMPKINS) SS . TOWN OF- ITHACA : I , Carrie Coates Whitmore , First Deputy Town Clerk of the Town of Ithaca , New York , do hereby certify that the resolution is an exact copy of the same adopted by the Zoning Board of Appeals of the Town of Ithaca at a regular meeting on the 15th day of June , 2009 . First Deputy to in Clerk