ITHACA, NY – You don’t often hear talk about oaths and duties to uphold the law during planning meetings, but those concepts turned out to be major drivers of discussion during Tuesday’s meeting of Ithaca’s Planning and Development Board.

The board was once again discussing the hotly contested 201 College Avenue apartment project, which they tentatively approved last month and were expecting to vote on final approval for in August. After the proceedings of Tuesday’s meeting, that vote might be pushed back at least another month.

However, board member John Schroeder brought to light what he thought was a major issue with the zoning code, which would technically make the project illegal.

Planning Director JoAnn Cornish noted out that it was not the Planning Board’s job or right to discuss issues of zoning, but that didn’t stop the board from having an almost hour-long discussion about that very issue.

“As a person who has taken an oath to uphold the law, I think I have to point out what I found,” Schroeder said as he prepared to present his case. “This is like two tons of lead I’m carrying around, and I take no pleasure in this whatsoever.”

Letter of the law

The debate came down to what the meaning of the words “street facade” actually were. The language of the new Collegetown zoning code sets limits on the length of a building’s street facade. In the MU-1 zone where the 201 College Avenue project is located, that limit is 75 feet.

The proposed building at 201 College Avenue is on the corner of College Avenue and Bool Street. The facade facing College Ave, which the developers consider the front facade, is within the 75 foot limit, but the the Bool Street-facing facade is over 100 feet.

Schroeder’s case was that the letter of the law places length limits on “street facade.” Thus, the Bool Street facade should also be limited, since it also faces a street. Essentially, an individual structure on a corner lot in that zone should be no larger than 75 feet by 75 feet.

Schroeder noted that the building could be divided into two smaller buildings to fit the code.

Counterarguments

While a few members of the board were swayed by Schroeder’s logic, the project team, planning staff and other members of the board offered a number of arguments against it.

1. The diagrams included in the zoning code indicated intent — that “street facade” means the main side of the building facing the street of the building’s address. Schroeder argued that the diagrams had no legal meaning since they were not directly referred to in the text of the law.
2. Schroeder’s reading of the law doesn’t make sense for corner lots. Since most lots in Collegetown are rectangular, restricting corner buildings to a square shape severely limits their density compared to other lots.
3. Cornish said that members of planning staff and the Director of Zoning Administration had examined this issue when the project was first brought up in November. They determined that it fit with what was laid out in the new Collegetown zoning plan.
4. The issue is simply not something that is in the purview of the planning board. If there was a problem with the zoning, the issue would need to be referred to the Board of Zoning Appeals — and the deadline for that appeal would have been 60 days after the determination was made.

Citing the need for a careful approach given the controversy around the project, board member McKenzie Jones-Round said she was uncomfortable discussing “legal loopholes” and felt it would be irresponsible to vote on the project until this potential zoning issue had been resolved.

Board member Robert Lewis strongly disagreed. “This isn’t a loophole. This is a determination that staff has made that was set and we have accepted for some time, we have gone down the road some distance,” he said. “We don’t get a vote here. We have a spent a good deal of time talking about stuff of which we have no vote, no say, no nothing.”

Lewis and one other board member said that sending the issue over to the BZA would be a waste of time, since the issue had already been decided once.

Ultimately, the planning board voted 4-3 to refer the issue to the Board of Zoning Appeals. While the board was split on that issue, there was agreement among several members that the zoning code should be clarified to avoid similar situations in the future.

Further delays

Earlier in the meeting, Noah Demerest, an architect on the project team, said that they had anticipated final approval on the project in June. If the planning board didn’t vote on a final approval until the end of August, they’d already be 60 days behind on an already tight construction schedule.

With this latest wrinkle, the BZA may not be able to weigh in on the issue until September 6, which would mean that the planning board wouldn’t decide on final approval until September 26, putting the project even further behind.