Planning and Development Board - Regular Meeting

All right. Good evening, ladies and gentlemen. Uh, I hereby call to order tonight's, uh, Board of Zoning Appeals meeting. Today's date, January 6, 2026. Uh, my name is David Barkin, chair of the board. Present is Michael Cannon, member of the board. Andre Gardner, member of the board. Donna Fleming, uh, is present. uh on Zoom for a qualified reason. She is a member of the board and also present uh Megan Wilson uh deputy director of planning and city's attorney uh Victor Kesler and Isaac Gaylord as assistant city attorney. Uh our first appeal for this evening will be appeal number zone 25-9. Uh prior to calling the appellant, uh if our city council has any comments or wants to weigh in on anything, please do so.

Uh good evening. Megan asked me to just give a little briefing on this type of appeal as the board doesn't often see them. Uh so this is an appeal of a determination of the zoning administrator. Um in effect, the board has the authority to determine whether the administrator correctly made any decision. um and can substitute its judgment for that of the administrator if it determines that that is appropriate in this instance. So it can affirm uh modify or overturn the the determination of the administrator. Okay, thank you. Uh with that we will

do a little bit different too just we have it's different from an area variance that we might typically heal it will um so I can review the determination that was made then we'll have our applicants come up and um give their um their uh appeal and then you can ask questions of any and all before you deliberate. So there will be there is a scheduled public hearing um as well just as with other appeals too. So all right so I will just start by going over the background information and the determination that um we had to make. So I think many of you know that the city enacted short-term rental regulations on May 1st of 2024. the regulations went into effect immediately, but the city um allowed 13 months for people to come into compliance rather than um start full enforcement right away. So, while the the regulations went into effect effectively May 2nd of 2024, enforcement um began in June of 25. Um first short-term rental permits were issued in January of 2025. Um, and throughout the year we did some educational mailings to let people know what the regulations were, how to apply, all of that. Um, one of the questions that was a key point of this was the regulations was um whether a property could be used as a full-time short-term rental with the um owner or other resident not being there. Um, so the common council decided as part of the short-term rental regulations that a um a unit must be the primary residence of the host in order to be used as a short-term rental. And that means um as aligning with New York

State that you have to live there for at least 184 days a year. Um, now like a lot of changes that happen when we see zoning, if someone is in compliance with the previous regulations, at the time new regulations are adopted, they are um they have established rights to continue the use or occupancy of that property. Um, in this case for the short-term rentals, prior to the new requirements, the only two requirements for a short-term rental were um that you maintained a certificate of compliance as all rental housing in the city is required to do, and that you paid both city and county um occupancy taxes, so effectively the hotel room tax. And the hotel room tax legislation went into effect in 2021. So anything from that time forward. Um so as we have have gotten different applications coming forward for short-term rentals, we have evaluated particularly if the property owner requests that whether they have um those established rights. So again, meaning you you're current on your taxes at the date the new legislation was adopted and that you had a certificate of compliance. um the property owner of 224 Floral in Forest and Hudson came and um stating that they that she felt she had established rights to continue the short-term rental use of both properties. Um and as we started to go through the information that she provided um she uh Mrs. Herin is current on her county occupancy tax and she did maintain a certificate of compliance. But for one of the properties, the payment of the um city occupancy tax stopped in March of 2023 and the other property while there was a cert

certificate of authority on file that had been issued to collect the tax none had ever been remitted. So because of that was found those properties are not in compliance with the previous short-term rental regulations and thus we determined that there were not established rights to continue as um a short-term rental that's not the primary residence the host.

Okay. Uh with that is the appellant present and open to present. Okay, please present. We ask you keep it to roughly 10 minutes.

Um, hi, my name is Amelia McClean Robertson. I'm an attorney with Harris Beach Martha. Um, here representing Miss Rannis uh regarding uh this appeal. Um, just speak into the microphone. Okay, I'm swing it toward you. Thank you.

It moves. Okay, perfect. Um, so I did probably less than an hour ago send a letter. Uh, I understand that you probably haven't read it yet. Uh, I'm going to provide an overview. I don't think there's a dispute on the facts. It's presented by Miss Wilson. Um, so I'm just going to kind of present our position on it. Um, I just wanted to make one correction. uh in the first paragraph it said that she's operated these properties as short-term rentals since uh 2002. That's incorrect. It's uh 2022. So, my apologies for that. And and that's consistent with the previous letter that we had submitted. Uh does anyone want a hard copy of this? I can I printed extras. You're all set. Okay. So, um, at issue here is this, uh, hotel room tax, um, on two of the properties. So, as we know, when there are changes in a zoning code, a property owner has rights as a pre-existing non-conforming use. um and under state law there are certain instances and when uh they lose their rights to that um use. So here uh you know the city is taking the position uh that because she was delinquent on the city tax um for two of the properties um one starting March 23. I don't have the date of the other one that uh she wasn't in compliance with previous regulations and therefore um isn't entitled to that use. Um so I would uh contend that the proper remedy for a tax delinquency issue would be uh for uh

notice of delinquency in her taxes and give her an opportunity to cure that defect. So, you know, generally, uh, in New York, a person would lose their right to, uh, their pre-existing non-conforming use if their use changes, um, if their use expands. Um, and that isn't the case here. It's, uh, you know, she had been operating these properties as short-term rentals, and my understanding is in the zone short-term rentals are allowed. It's just that she doesn't live there. So, uh that's the difference. Um so we contend that uh revoking her right to operate uh her properties this way um is a violation of due process when she hasn't been provided with an opportunity to cure the defect uh which is the the payment of those taxes. So our position is that she should be able she has a constitutionally protected right to continue her use uh because she hasn't expanded the use um she hasn't changed the use um you know if uh a property owner for example wasn't in compliance with and let's say not a tax issue let's say it's something coming from code enforcement that property owner doesn't lose their pre-existing right due to a code enforcement matter to her pre-existing use, it would be dealt with through city court. So here, you know, the proper remedy would be for her to be able to pay those taxes and keep her property uh her right to use the property as it is. Um there's another instance in where uh under the law, a property owner loses their right to a pre-existing non-conforming use, and that's when it's

abandoned for 12 months or more. And the city's code uh section 325-33D says should the non-conforming youth cease to operate for a period of 12 months or more, the right to operate the non-conforming use shall be terminated. Well, here that also is not the case because we have records to show that up until she received these notices from the city, she was operating these short-term rentals. So, there's no abandonment of use. So no expansion of use, no change of use, no abandonment of use in city of Ithaca for 12 months or more. And so for those reasons, she has her constitutional right and there's a, you know, case law is discussed in my letter uh to back that up. Uh and so the remedy here would be that she should just be able to pay her taxes and continue her use of the property as is. And I want to make clear too, we recognize that the those taxes were unpaid and that was due to an oversight. Like we're not saying, you know, we're not in the wrong. Absolutely an oversight. She paid all the other taxes. And the reason was is, and correct me if I'm wrong, but she had a a property manager that helped with that, you know, stuff. She I think just kind of left, right? no longer works for her. And that specific um hotel room tax is the one thing that fell through the cracks, which is why we're here. But otherwise, she's maintain the properties very well. To my knowledge, there haven't been any complaints. Um you know, they're in good order. Uh and if there were any, you know, that she would address them through proper code enforcement measures as would be appropriate in that instance. Um, but otherwise, you know, I I understand and everyone's doing their

job and, you know, that's their position, but I I uh consider it, you know, improper to revoke a person's property rights due to something that can be remedied just as it would be remedied in any other um tax enforcement, property tax enforcement context. So, she's looking to pay. She's trying to pay, but I understand we have to go through this process because of the determination's been made. And, you know, we respectfully ask that um the Zday find that she has a pre-existing she has a right to a pre-existing non-conforming use and that, you know, she wants to pay her taxes and, you know, we'll continue and if there are any issues moving forward, we'll address them through the appropriate means.

Thank you. Uh, I'll now open this up to questions from board members. A couple questions. Um, do you have evidence that she did request the balance on this tax bill? There's email correspondence. Yes, with Megan.

So, I don't have the balance of the tax bill. So, that wasn't something that was ever came to me. Also, in the case of an occupancy tax, it is the host who is the one that determines what that is. So it's 5% of the revenue or from the lodgings. So [clears throat] that's not the city does not have each individual um hosts or hotels uh balance that's due. They have to submit that information. So is this a city tax separate from the county moot room tax? Yes. So there's a city occupancy tax and a county occupancy tax. And then most short-term rentals also pay state sales tax as well. Okay. And

Mike, I can I can clarify that. Uh, so the way that the city occupancy tax, this is really loud. Um, the way the city occupancies tax is structured is that the person who's renting a room, whether it's a hotel room or a short-term rental, has an obligation, I think it's on a three-month basis, to file returns with the city, and that's the basis on which the tax is calculated. So, it's not like you with a normal property tax bill where the city sends you a bill every, you know, twice a year. Uh, after calculating your tax as the business owner, you're supposed to file the return and that's what the, uh, taxes based on. And you have any idea what compliance was on this issue with other

I don't know that offhand. It's very low. Um, before the enactment of the short-term rental regulations, it was low. Um I think they estimated at the time under 10%. To that.

So with your confusion of the city and the county tax, that was mine as well. With the county tax that's due quarterly, as he said, we would receive in the mail every quarter um from the treasurer. Um I'm in good standing with her. I've talked to her for years. Um, and we would have to fill it out, as he said, as well based off of our income we made. With the city tax, when I took over managing it, I truly had no idea about this tax because I never received one thing in all these years in the mail regarding it. Um, even when I went and discussed with Megan, I didn't even know the percent it was supposed to be. I had explained to her since taking over and managing the properties, um, we have the same software that tracks all of our income. So, he's like, I can very easily pull a report and write the check for you. I I didn't mean to be delinquent. I would never intentionally just not pay that.

And and may I add too, her first notice of this was a letter August 4th from uh, I think it was from code enforcement is cut off here. Um, it's titled short-term rental compliance order and it says you've, you know, been found to be in violation, you know, basically put her in a situation where she had to cease operations as opposed to, hey, you owe these taxes, you know, and, you know, tell us what 5% of your earnings are and then she could pay it.

I will note that [clears throat] um, she Mrs. the hernack had the wrong mailing address on file with the city until somehow this one made its way. I think we did some digging to see if we could find a crack because they began returned. So I think not only these but probably other mailings may have not made it to there as well. So they didn't go cuz we had our cleaner actually checking our mail for us. So they didn't go to either of these property addresses or our home address. So, they didn't go to any three of the properties that I own. They somehow found their way at my mother-in-law's in Cayuda. So, I don't I don't know why she my 70s something year old mother received them and I didn't.

Um, one more question. Were the are these approved in zoning way or is this a license? The uh are you talking about the occupancy permits or is it I mean is this a renewable license or so the uh the new short-term uh occupancy uh permits are are administered in through the zoning code. Um that's where they they live. Um but but it is a permit that you have to apply for and there's conditions for it. Um and what's being appealed now is the denial of that. Uh right. Well, not the denial of the PR, but the the determination that there's no non-conforming use, legal non-conforming use,

Donna. So, I guess the legal question here and I'm trying to understand like what you think our scope is as an organization. So I think you guys are challenging the legality of the scope of the decision she made and Megan is making and you're citing Costa v Callahan and some other New York cases saying that there should be more latitude given for failing to apply for a permit and I assume also in their uh paying some amount of taxes that having some deficiencies does not mean that you don't have grandfathered in rights. Can you clarify that slightly?

So yeah, so that case uh was a case in which the property owner operated their trucking business and during that time the municipality added a law that says you now need to have a permit for this and if you don't you're not grandfathered in as a non-conforming pre-existing use. and the court found he wasn't subject to that so long as he didn't expand or change his use.

I guess my my question for you is is that seems like a legal challenge of the city's STR regulations because you sort of said at the beginning like you're not questioning Megan's determination on the facts of the case. You're essentially asking us to give Sorry, you're not you're not questioning her determination on the facts of did she have a permit and did she have was she paying her occupancy tax? Like I feel like what you're asking is for us to give you a little latitude because you made good faith efforts to be in compliance. Yeah. So, um I think that mischaracterizes a little bit. I was got this at three.

Yeah. Yeah. Yeah. You didn't know. Uh I was saying I the way Megan presented the facts I agree with, but I think the city's position that um she no long like the the remedy for her back taxes is revoking her right to her non-conforming pre-existing use is incorrect.

But as I see it, like that was how the STR legislation was written. And typically as a board, we do not make determinations as to whether or not our zoning law in and of itself is legal or constitutional. I feel like that is a job for a higher court. Or if you want to go through an article 79 and that court says no, they can make a judgment on whether or not the STR legislation is written is legal. But as I understand it, like looking at Megan's letter, it says, you know, our legislation says, are you paying your occupancy tax and do you have a COC? I'm sympathetic that it's hard to pay the city occupancy tax because there's no reciprocity agreement with the STR platforms. But I feel like unless you're challenging Megan's determination on the facts, I think your appeal is outside of the scope of this org. if the city attorney wants to comment on that, you can. Or if you if you want to challenge that, but that's how I read it.

I mean, I think probably the narrowest way to state this case, and I think you would probably agree with me, but let me know if you don't, um, is the question is whether the determination uh there there's two components to a legal non-conforming use. One is whether it's non that it previously existed, right? Whether it was previously rented out as an Airbnb. Um, I don't think there's any dispute over that. It was and it was consistently done. So, um, I think the dispute here and the question the board is being asked to resolve is whether it was a legal non-conforming use and whether the non-payment of that taxes means that it was not a legal non-conforming use. Um, and the applicant's position is non-payment of the taxes doesn't matter because the use um, it was continuously used. And again, feel free to correct me, but I think I'm just trying to sort of simplify the issue.

I mean, [clears throat] our position is the appropriate remedy for back taxes is that she either pay the taxes or you do tax enforcement, but it wouldn't be to shut down her business, which is essentially what this determination. Gotcha. Right. And this the city's position has been that uh for it to be a legal non-conforming use, the payment of the occupancy tax is part of that. And that's the way the city has to date interpreted that, but it's the BCA's prerogative to so review that

as I see it like and this is on page two of Megan's determination city code section 325-32 general requirements uh like it seems like she's interpreting that. Do you need it? Oh, I'm sorry. You got do you have it? Um on page two, is this a letter dated October 15th?

Uh December 18th letter 2025. And then within that she has general requirements for a lawful of establishing of prior rights. So, um, so I feel like I feel like she's in I feel like your issue is with our code, not with our determination.

So, well, we have to exhaust all administrative remedies. And if you know the city decides that's how they want to enforce the code as presented and as interpreted that's inconsistent with case law on this subject. I guess is it our job as a board to assess the case law because neither of none of us are lawyers like I have no legal background. So yeah, I mean I presented my letter and your attorneys can opine, you know, as you we'll get back into some of this during deliberation. I'm going to go to Donna. You had your hand up.

Yeah. So, in the 13 months between when the STR um was enacted and when it began to be enforced, were the current were the um uh STR uh um managers, this is a question for Megan, um was there an effort on the part of the city to notify all of the um property owners affected by the new law in those 13 months?

Yes. So, we sent a letter on December 15th. We sent a letter on March 4th. We sent another letter the first week of June, again in middle of July, and then in August. But again, the property owner had the wrong address on file with the city, all departments within the city, because we checked to make sure when we hadn't gotten any response. Um, so [clears throat] at that point we found um the correct address in Florida and were able to send a letter there. I have no idea how it ended up supposedly in CAUDA, maybe a forwarding with the postal system or something like that, but um they we were able to then get it in August, I believe, is the first that the um applicant said she received. Thank you.

Yes, I've received this right.

I've received Z zero notices at my home address and it wasn't forwarded um to my mother-in-law. All of the notices from the city after that also have still been going to my mother-in-law's house in Cayuda. Um, and like I said, when regulations went into place, I made my cleaner aware um, to be checking our mail at 224 Floral AB and also 410 Hudson Street just to be aware and be informed. Um, and she always said we hadn't received any notices at all. Um, so yes, I I I never received anything at all three of the addresses, including a city tax bill for occupancy. The county I did, and those did go to my home address, and as I said, I've been paying them on time for years with no hesitation. So,

I've got a question uh and then I'll circle back. uh for the city's council. The intent behind the grace period was because we're now restricting it. Most of our non-conforming use cases, it's uh you're operating a multi-unit in a zone that was R3 and then in the 80s they downzoneed R2 or something like this. This is our first time where I think we've had active uses then come, you know, come offline per se. So, how does that work when we're establishing a legal non-conforming use when in the case of SDR, some of it was non-compliant to begin with? And so, the the nency of the law in and of itself was to define what is and what isn't compliant around this use case. So h how do we how do we acknowledge what is a legal non-conforming use for Airbnbs when in effect they were they were never uh in a way legitimate uses to begin with.

I mean so I think there's a couple of of different questions you're getting at there. One is the delayed enforcement and that was just to try and encourage voluntary compliance before we started you know making more significant moves since this is going to be a new and very big change. Um there was prior to the uh enactment of the uh STR ordinance um it was lawful to do short-term rentals provided you had a certificate of compliance and you paid the required uh occupancy taxes, right? Um, so this isn't so different from a a instance where you're, you know, changing from a R3 to an R2 or something like that. Um, it's it's the same general idea. I I think the question in this particular case is more about the interpretation of of that lawful portion. Um, does that include both the certificate of compliance uh, which they had, and also the payment of taxes, which the city's interpretation has been is part of the legal non-conforming use? Their position is it isn't. Um, and you can decide that moving forward we should not include that occup occupancy tax requirement when we're making these determinations. I think that would be within your jurisdiction. Um, and that would be a a shift from the way we've been doing it. Sorry, I think I might have gone off topic there, but

No, that's the

Megan, can you speak to the intent behind council's decision or or planning staff's decision to to have this rubric of Oops. So, there's really, again, as Victor noted, those were the two requirements on a short-term rental before the enactment of the new new regulations. Um, in terms of the determination, we it is either you did or you did not. There's not a lot of room for discretion in terms of our who's close enough to being in compliance and who's not. So, yes, there's been cases where someone might have had a a you know, knew this was coming and got um their first CFC 2 months too late, but it's either you were in compliance on the on May 1st or you were not. Um, and those were really the only two requirements for short-term rentals, as you said. So you either it was you either met those two basic items or you didn't.

And one one more question for the appellent. Uh is is this what you do for a living or you you have a manager or sort of Yeah. My husband and I are property managers. Okay. STR only? Yes. Okay. You've never done long-term rentals. This is your niche. Okay. And I have once and it wasn't great. And uh in this market, you said that you did have a property manager at one time. Yes. And we just found that we did it better ourselves or so I thought other than the city occupancy tax during that 13-month grace period from the city. Was your property manager employed and running the properties at any time?

No, because this just happened correct over the last year. Uh so it was instituted uh May 1, 2024 when it was in. So that was my husband and I at that time it okay and like I said had we received a bill to even know of course we would have paid we wouldn't lose our livelihood over a 5% tax that we really have worked so hard on. So it just I guess you wouldn't do that. I guess that framing though of like taxes like and I don't mean to be insensitive but like I I have restaurant tenants who pay sales tax, right?

Right. They they do not receive a bill. They they pay a bill. If they don't do that, they get audited. The same thing with the IRS. Occupancy was like I knew about it. I just I genuinely didn't know about this tax as he didn't understand it either. Like true. It's not a normal none of our other properties have this many. So Ithaca really is the only only one. What other markets are you in and how many?

Um we have a home in Lancing as well and then also in Newfield. I I guess the phrasing though, like your attorney has said that you were legally operating these properties prior and you have found out through what you say is no fault of your own that you weren't legally operating it. Do you think you can credibly say that it was legally operating if you weren't paying occupancy tax based on her knowledge? Yeah, she and she wants to pay the tax. I mean, she's just been trying to pay the tax, not trying to not pay the tax.

I really went to Megan's office when I got the letter and first we thought it was a scam because that's how much we didn't know about like the lawyer was like maybe maybe this is a scam letter and I think the attorney even contacted the city's lawyer because he had never heard of it either. It wasn't. So then I went to Megan's office to just pay and I spoke to both these women here just thinking I could pay. I didn't understand it. Please let me know the percent. I'll run a report. Please let me pay it. I'm I'm okay with if I owe it, I owe it. And I'm not trying to be sneaky. Understood. And lose my livelihood. Uh public.

Yeah, we are going to open the public hearing now and then uh if we're comfortable with closing it, we'll close it or we'll leave it open and then we'll we'll do our deliberation and and of course we can ask you questions then. So, uh, Megan, please open the public hearing. Sure. I, um, actually do not have anyone signed up to speak. We did not receive any written comments from any interested parties. Um, though the mailing did go out. Um, this is not subject to review by Tomkins County um, for general municipal law review. Um, so we really don't have anything else for the hearing.

Okay. I um, [clears throat] yes, Donna. No, go ahead, David. Then I do have a comment. Go. I think uh I think if it's okay with other board members, I would like to keep the public hearing open for now. If we're comfortable closing it at any point during the meeting, we could do so as well. Does that work, Megan? Or should we make a decision on that second? You anticipating more comments comments from the public?

Uh are you anticipating more? I don't I don't think so. Um once the public hearing is closed, you do have up to 62 days to make your decision. So if it's that you're not comfortable, don't you want more time to review the materials that were presented late or something along those lines, um you still have 62 days even if you close the hearing. Is this still within is this still follow like the 500 foot rule per the properties or is this citywide? Uh, no, we treat it the same as as um so they notified all property owners within 200 ft. Anyone within 750 can speak um and they did post the property as well.

I don't I'm going to hereby close the public hearing with that. So, uh to deliberation, initial thoughts, comments, Donna. Um, so, um, the appellant I heard the appellant claim that she didn't know about the obligation to pay the city property occupancy tax. However, in the documents that we have, it said that she applied for the uh certificate to collect the taxes and they were collected through or one of the properties for the first quarter of 2023, which means that she did know about the obligation to collect the tax and did in fact collect them up to a point. Is that is my understanding correct?

Um, that could be correct. I also think that was the county tax. Oh,

that's correct. There was um payment of for the Floral Avenue property from the time from I think early 2020 first quarter 2022 through 2023, first quarter 23 was paid. So five months there was while there was a certificate of authority issued for Hudson as well, there was no taxes ever submitted for that property. So also along with that I had a property manager who is Vicasa. It's a nationwide company. So they inform or make sure I were in compliant with every compliance with everything. So it could have possibly been them. Um or I also had a woman who previously worked for me um and she's since left to have a family um but she was handling all of our bookkeeping. So if that was paid, it was through her. And again, I just I wouldn't I wouldn't jeopardize my business knowingly over a 5% tax and just stop paying abruptly to the best of my knowledge. If I receive a bill, I will definitely pay a bill. So it it wasn't it wasn't intentional to just quit paying. It was either my previous management company that paid or the woman who no longer works with us and has her family.

I have a question for Victor. uh if if the city did go this route, right, to sort of revise that cuto off look back period as you alluded. If we decided to to basically say that's the vision we see it going, what would that do for other other property owners that also had that stop dead moment?

I that's an excellent question. Um we have consistently taken the position thus far that uh payment of the occupancy taxes is required to be entitled to legal and non-conforming use. Um and there have been prior decisions made on that basis. So that would put the previous people in a worse position and potentially reopen those cases, but I'm not sure exactly what that would look like sitting here right now. Victor, can I ask another So Megan's letter from the 18th uh the third paragraph where it's the criteria for for short-term rentals, the property must maintain a valid COC and all current city county occupancy taxes at the time of adoption should be paid. That is that is word for word from our city short-term rental legislation like that is what common council passed or is that our or is that your office's interpretation of the legislation?

I just turned it off. Um that's our interpretation of uh 32532 which is not the short-term rental uh specific portion of the code. about non-conforming uses. Um, and I can just read Oh, great. Yeah. Um, and that that comes from that language where the non-conformity remains otherwise lawful. Uh, it has been the city's interpretation that if you weren't uh either registered to pay the taxes, which these two properties were uh registered, or if you were not in fact paying the taxes, then that would not have been a lawful a legal non-conforming use. Thank you. But but the code itself doesn't uh this is a is an interpretation of those code provisions which is where uh this board comes in.

Gotcha. Mike, any comments for us or questions? Donna, Andre, Donna, do you have any thoughts?

Uh, it's I'm inclined to uphold the finding of the code administrator. I um the fact that the property manager left her job, it still seems to me that the property owner when trying to figure out how to fill in for the property manager would go through all the papers, look at all the bills that had been paid, figuring out if everything was in order so that she could take over management her of her own properties in in the absence of the former property manager. Um, the fact that some of the taxes had been paid uh means that they weren't totally ignorant of the need to pay them. Um, so I'm I'm inclined to support the finding of um the city staff. Thank you, Andre.

I think I think the city attorney's office, the framework that they've given Megan is reasonable that this is what you have to do to be established. Um, I think the applicant's recourse is to sue the city and say that that framework is not appropriate. But I think there's reason I I agree with this is what you need to be grandfathered and I agree with Megan's determination of the facts of the case that per the letter of what the city attorney has said, they didn't pay their occupancy tax, but they did have a COC. Uh I think I don't want this to be taken as like being insensitive to your larger challenge. I know landlords that have built their entire business on short-term rentals and the economic impact of this has forced property sales. And this is like a real challenge to you. But unless I hear a more compelling argument that the city's legal framework is not allowed, is inappropriate, I I think Megan's decision is correct. And I think that's it.

Um, [clears throat] on my end, I'll I'll give my spiel about where my head's at. Um, and then I'll also follow it up with a question for either uh Megan or Victor. I I think the crux of the argument is that a ball, you know, on a tennis court, a ball that's 80% out is 100% in. And that's sort of if I visualize your appeal, your the crux of your case, whereas it might seem myopic, but the rubric for whether or not a ball's in or out is is there. And unfortunately, based on missing one of those, the ball's out. And and that's what Megan's determination was. And and so I do find it defensible in that sense. I have my own qualms with the SDR legislation, you know, as a private resident and operator uh of rental property, but that I think harbors back to the to the legislative intent. Um, and common council had a had a vision here to to essentially in a lot of ways take a lot of these offline. Um, and that's what you're up against. But again, that's a separate thing. I would advise you to not ad I would say maybe contact your ward reps, right? Um and then talk to your legislators about what you're up against here because that's the politics side of this. Whereas what we're doing is really just did uh the zoning administrator follow the code as it's laid out? And of course, it does seem like you're interested in other remedies should this not go your way. And that brings me to my question of of you know, should we vote on this? What's involved with the use variance thereafter? If that's another remedy that the appellent could go for, that's something I want to know.

Yeah. And I would actually defer to Megan who deals with use variances more often than I do. But yeah, uh just to kind of say where we are overall in the process. So Megan made this determination um this specific determination that there are no established rights to this particular use is what's currently on appeal. Um future were the board to uphold that determination. Future mechanisms might be to consider use variance. Um they could file an article 78 to challenge the board's determination. On the flip side, if the board were to side with the appellent on this issue, then obviously it would resolve the issue because the established rights would be uh would be established a use variance in this case.

Yeah. So, we've [clears throat] actually been talking about that and excuse me, as um Victor noted, they they look at two different things, right? So the determination is focusing more on whether the decision upheld the zoning ordinance has correctly applied it. Whereas the use variance gets more to the idea of um there's a a unique circumstance here that would warrant um an exception from the requirements. Um so those they're they're two very different questions but can be about the same property here. So um there you'll have to look if they choose to come back with the use variance. You look at the use variance criteria and weigh that against it.

I'm not saying a use variance is by any means a slam dunk. That's the very high bar, but it'd be another path to explore. Um and uh you know the good thing for you is that you do have nice properties and and you know they're That would be one of the criteria that then would get looked at in that context. But um any other thoughts or ideas from board members?

I guess the question is is Mike, do you want us to hold off on this so you can think about it for 30 days or how does everyone else feel? can't abstain. Yeah. Isn't there a Isn't there a middle ground to like you can Well, isn't there approved deny and what's the third? Um, yes, Donna.

But if you wait, what further information do you want? It's okay. I I don't need to wait. Um, I was hoping to have a more global view of this. How many people weren't complying? How um how many people have continued operating non-resident BNBs? Um, what's the scope of this?

So, to the appellent, you know, I'm comfortable making a motion uh that upholds the zoning administrator's um determination. Um and and if that passes then of course your recourse is to pursue other options you could table this if you want more time to you know explore but otherwise I think one of us will be making a motion here shortly. So it's then I guess in terms of our own criteria and rubric it's different than a area variance.

Yeah. So in this case um or in the you're again the question is whether um the zoning administrator correctly applied the zoning ordinance to the determination. So whoever is making a motion um you know we don't pre-write or draft anything. You want to summarize the facts of why you believe the decision was or was not correct um and include supporting information in that. Um, and then it'll be written up after. I think Andre summarized it well. I did appreciate the ball thing. You know, would maybe leave that out of the motion.

Do you guys Do you want a minute to talk with yourselves or

can I call five minute recess? We're going to take a fivem minute recess and we will pause audio and visuals during that

return from our recess. Okay. Are we live? And Donna, are you present? Donna, you are muted if you are talking. Um, do we need Donna here at this second? We have three. Yeah.

Uh, no. If she can come back um before the vote, but it would be good to have her tune back in. Maybe she just needs a minute. [clears throat] Right. Is there anything the appellent would like to add before we proceed?

Um, I suppose my final comment after listening to some of the discussion would be that due process applies here. And I believe um should the board find that revocation of uh rights to a non-conforming use for the non-payment of taxes, which my client is willing to pay. Um I believe that would be a violation of her property rights without due process. Thank you. Uh, with that

city just real quick, does city council wish to speak to that real quick before we do anything else? I do. Yeah. Um, I just I I would respectfully disagree with that sort of framing of the issue. I think the question is whether those rights have been properly established in the first place, not whether they're being revoked. Um the city's position is that because those taxes have not been paid in many years now, um that those rights are not properly established uh at this point in time. Thank you.

I'm going to make a motion to affirm the city zoning administrator Megan Wilson's decision regarding zone 25-9 for 224 Floral A and 410 Hudson Street. Uh on May 1, 2024, uh city of Ithaca common council created a short-term rental reg uh regulation. Uh after that, the city attorney's office established uh rules governing whether or not existing property owners had uh grandfathered in or established rights for a short-term rental property. Uh their guidance was that short-term rentals must have one, a valid certificate of compliance and two have been current on all city and county occupancy taxes at the time of the short-term rental ordinance adopted on May 1, 2024. Uh upon receiving an application for grandfathered rights from the applicant, uh Megan Wilson reviewed whether the properties at 224 Floral Lav and 410 Hudson Street had a valid COC and had paid their city and county occupancy t uh taxes. Uh she established that both properties had a valid certificate of compliance and that both properties had been correctly paying their county occupancy tax. Upon further review, she established that the applicant was not paying city occupancy taxes for both properties at 224 Floral A and 410 Hudson Street. Uh with that in mind, uh the city administrator rejected the application because she the applicant had not met both criteria. In my opinion as as the board, the city attorney's framework for establishing grandfathered rights is

correct and the uh city zoning administration's determination of the facts is correct. Okay. Uh do we do a roll call vote here or Okay. All right. Mr. Cannon, Miss Fleming, yes. Mr. Gardner, yes. Mr. Barkin. Yes.

All right. That um the determination will remain standing. You do, as we've discussed, have the option to pursue a use variance. Um but for now, the uh both properties are subject to the determination and the short-term rental regulations. Thank you. Thank you for your your work. We have a couple other items, but this is done. Thank you very much. Thanks for coming. Which brings us to our next agenda item, which is

I'm sure I don't know who's we don't have minutes to approve. You know, without Joe here, I wasn't sure who was going to jump on that one because we know how much he loved minutes. So um minutes for both the November 25 meeting and the January 26th meeting will um be circulated before our next meeting so that you can uh review and offer any revisions. So um upcoming meetings we have so we have not um actually do not have any appeals for February um at this time. So it looks like we will not be meeting in February. Um we definitely will be meeting in March. Um so the only thing will be if something we did receive an application that is scheduled to go to March, but if for some reason they pro progress through site plan review faster than um anticipated, but for now it looks like March will be our next meeting. Um there is an appointment to the board scheduled um on tomorrow's council agenda. Um so if that appointment is approved we will be back to a full membership. Um so um Jason Hton had submitted an application to the board and um is on the agenda.

Do we do we have statemandated training that we have to do by a certain date? You're so good at this, right? Wow. I feel like it's expired. Did I not?

Okay. So we did do some training last year. Um well when we met with um the consultant regarding the zoning map and chart and in ups downs with the zoning ordinance uh we've also I can't remember what it was but met with the planning board. There will be more training opportunities but I did send out the one the email from New York State Department of State to all of you there webinars. There was two in December. Um, and then I think there's three in January. I think any or all of them look like they could be good options for board members. If you do register and attend, please let me know so I can document your training. Um, we will also provide more opportunities as um the year goes on too so that you can um, you know, sit in person with me as opposed to on Zoom if you prefer that. So, um, but yes, there is your four hours a year is what you're you're required to have. So, um, the other item that I forgot to put on the agenda, but if it's okay with the board to add it now, is the annual lead agency concurrence with the planning board. So again, what this means is on projects where the BCA is involved in the review um of maybe a variance on something that has site plan or subdivision review. This um resolution gives authority to be the lead agency to the planning board um unless the BZA objects on a particular application. So if you really feel strongly like you want to be the lead agency on some fund seeker, you will have the opportunity to do that. But as a general statement, then they don't have to send the letters back and forth every for every project. Um

so is this a voting item? We can it is a voting item. Um I vote in favor of um allowing planning board to have the lead agency. Lead agency. Yeah. Is there a second? I second. Okay. All right. Members, you can just raise hands on this one. All right. Thank you. And I will um make sure if there's an opportunity that you want to be involved in, you let me know so we can make that happen. Um we motion to adjurnn. I think that's all I have. Motion to adjurnn. Seconded. Journed. Donna, I hope you feel better. Oh, thank you.