HomeMy WebLinkAboutMN-BZA-1976-04-05 POA7-T) OF 70FTNG APP. _AP ,LS, CITY OF TTFIACA , CITY FALL, TTT-TAC.A
N77f:T YORK APDTT, r;
1976
A regular meeting of the Board of Toning Appeals, City of Ithaca,
was held in Common Council Chambers, City Fall, Ithaca, New York
on April 5, 1976.
PRF,qFNT: Peter Martin, Chairman
C. Murray Van Marter
Gregory Vasprzak
Rega Wood
Martin Greenberg
Fd7ar Gasteiger
Edison Jones, Dep. Bldg. Comm. and Secretary
Chris Smith, Recording Secretary
Chairman Martin opened the meeting listing members of the Board
present. The Board operates under the provisions of the Tthaca
City Charter, the Tthacp Zoning Ordinance and pertinent provisions
of Ne-Ar York State Law. Our hearings are not bound by strict rule
of evidence but we do ask that all who do speak limit their remarks
to the issues that are before the Board and do more than simply
say ��Thether they are for or against a particular action but try to
focus on the nart.i-cular question that the Board has to deal with
in granting or denying the requested relief. We ask that all
people who do speak, identify themselves by name and address, that
they come forward in front of the room and our proceedings has
those who are speaking on behalf of the requested appeal speak
ifirst those who are sneaking in opposition to the requested relief
speak second. We go through all the matters on the Boards agenda
for the evening and then adjourn to go into executive session. to
deliberate on the cases then return into public session to announce
the results. Mr. Secretary what is our first case?
Mtn . JON7,9: Mr. Chairman, the -first ca-se is appeal 1102 the appeal
of Paul T. TTard for area variance under section 30.25 col. 13 at
1202 Bridge Street in a R-2 use district held over from the December
1, meeting 1975 and Attorney Yanof is here to present the case.
ATTORNEY YANOF: Members of the Board, Mr. Martin, Mr. Jones and
Mr. Shapiro my name is Elizabeth Yanof and I represent Gladlys, and
Paul I-lard on Bridge Street and we are here before the Board tonight
to seek a building permit directly from the Board of 7oning Appeals
City Law
oursuant to Section 35 of the General T passed out a
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sketch of the nrorerty in question T. beliei.re there is a copy for
everyone .or at least within site of everyone. T I d like to give
just a little bit of a. background even though it may be a bit
repetitious for some members of the Board who were here necember 1
when ?ire apneared on that date, but T shall be brief. Last fall_
the Wards desiring to build a garage went down to the Ruildin_r
Commissioners office to get a. bi.zil_di n7 permit and then they made
the unhappy discovery that the garage which they wished to build.
Pt the -rd of their did not arpAa.r to be within the
bolindari.es of their property as described on their deed, nor infact�,
did their (Jri_i,r-w zr. T think that the man thpt you haire i_r 'front I
r trpL7 .,rill iodinate 11iat a.l_thotlszh +h_e dr7_ZrP�Aray is there where
irou can ima�-inQ a drives^.ray from ':�ridp e Street to the nrorocPd-
mara_ge a.rpears to ao into the area known as Treva Avenue. The
guest; on arose what to do about this rroblem and it seemed at the
time that the easiest solution to the problem z.ras for the '''arils to
r,ay at a nubl _c auction enou-h of that area Desi gnatPd_ a.s Treva.
Avenue on the mar to them to ha7re the boundaries to their
land i-ell within the area in which they wish to build. the garage.
There was a misunderstanding about this procedure. The T,�Tards
were lead to believe that for a nominal sum they could buy a
tri_anpular stri n of land. you car_ imagine where it would be but
one side being on Bridge Street and going back to what is Treva.
Ave. on that map. The nominal sum the Wards found out shortly
before the auction came close to ^700 and it was nrohibitivly
PXnensive for them to 7o ahead ?nd make that bid at the publi.c
auction. At this roi_nt T -►as retained by the T^rard.s and the ouestio _
arose wns there any other wair to proceed in this case? And that
was when section_ -75 of the General City Laub oras investigated by
>>s. Ply interpretation of that lew is that where there is a
nrorosed street or maned street on a city man that has been there
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for at least 10 gears but which has not been used by the City and
when it is on land to which the City has not acquired title, then_
the Board of Zoning Appeals may grant the building permit for a
structure to be placed on that lard. Again it' s my understanding
that that portion on that sketch map which you have which is
labeled Treva Ave. , itis unouestionably on the City maps as a
( street but as many of you may know it appears to be a strip of
grass land with some trees on it at the moment. Tt has never been
used and it is my understanding there is no intention of the Cities
using it. Now the ouesti_on becomes, has the City acquired title
to that stri_n of land?
PT . MARTTN: May I interrupt you for a moment. Nas it been maped
as Treva Atrenue for 10 years?
MRS. VANTOr: Yes
MR. M1rRTTN : Right, so that we are in that Section of Section 35.
NRS. YANOF: Yes. uas the City acquired title to that land, is
the next question. TIve examined the abstract of title covering
the "Ta.rd_s -property and it also covers property to the North of
the Wards infact it goes up to State Street which i-,could be on the
right hand side off that map to the North. And there is no deed
to the Citv of Tthaca of that property. ghat there is in the
abstract is a right of way given to the City to lay a water main
and if you examined the pronerty labeled Treva. Avenue on that
sketch mar you leill see that that is infact where the water main
has been placed. So it is our contention that this does fall
within the two reauirements of section 35 of the rreneral City Law
and that the Board does have the rower to issue a building permit
directly to the 'Ja_rds.
MR. MARTIN: Now, as T read Section 35 with the help of an opinion
that we have from Mr. . Shapiro, Attorney for the City, it would be
important for us to incuire about the title that the Wards have to
that land which is covered by Treva Avenue on the man. Tt_,' s my
impression reading Section 35 that it applies to property owned by
private individuals, which is covered by a mailed street title to
which does not rest in the City. Now you indicate that the deed
which the Wards have goes up to the edge of Treva Avenue, right?
. RS. YANOF: That' s correct. Now it' s our contention that the
case law beginning with a case in the 19th century 1861, in the
Court of Appeals of the State of New work indicates that when you
own -property to the edge of a citir street, an unused city street,
that you do in fact own title to the property to the center of
that street subject to tre rights of the adjacent owners. So
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it is our contention that although the deed which describes
the Wards boundaries only goes to the southern edge of Treva.
Avenue their do infact own to the center of that street.
MD. T�AOTTN: So relying- on that d.octurine irou arae that., they do
• clea.Y'1_v have title sub.-iPct to t'he maned street and so it' s c1.Pa.rly
wi_thi r our nowpr urd.er 75 to n�rart them the nermi t,
T?T-Z:q, YAT\TOF: That+ s correct.
�.�P • "APTTT\T: Are there miesti..ons rrpm members, of the ROa.rd?
n ? , VA rpIF)7 A;V: cave you been ableto determine who actually owns
the rih.t of wair for the water? Or who F;atre the richt of ti,ray to
the City for that?
J !TS, VANnp: Yes . T can tell_ you who gage the right of wa\r, -it t,ras
cm�in 1.Q11. That mi_rrht not armArpr the question of who has the last
deem to that m-onert✓r but the name of the verso- who p'ra.nted the
riaht of way to +ho Iity in lgl..1. . . . .
nlrp • VA.gPP7ATr• M"• Y nr F/rc �', ')id �rou follow it up and see
ttirhether they acti)al_ly }lad the owne.rslin for +'he property or was
somebody el8e the ow-rier"I T ?,Could assume th7.t i_f they gage the
rirrht of ��ray that they T,rould be the owners.
YANOT, : Tha.t' s correct.
T7. 7ASDR7AK: Ok, 1,0hat happened to the property since that time?
Who acquired the own^rsh _r.?
Y A NOF: Z,r e ll , it is my gu e s s. . . . . . . .
_TA_SP' 7ATr: Their still_ own it.
y7-_,q. y�,,Tn7, : Their heirs would, or if their are still plive that
they c t 'I l_ pT}m '.+,.
TvT,?_• VAST 77AV: Their hers.
MT? VATTO P: VaG; bee", 7sa �,�r1�.Pr� thr3y deeded r.roperty 1t aY1T)aarG
that ajrp the right of tra.r to the r''ity they deeder,_
t after their.,ir cr � .,
71rr171ertir un to the orTae of 1,rha+ became the maned but unused street.
MR • V _rPR7AT7- T T,roul ri assume thpt to be correct. See, they are
the, true owners of the propertir, ho-, can the rity sell_ -it or T'`ow
can we argue that we can ai ve you the rights to buil-d on it"
MPS. YAMOF• ?Fell, T Hon_'t think that they are the true owners to
the nronerty. T may have misspoke. Tt is my impression that they
have not actually deeded it but the City has taken that strip of
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:;land. and marked it as a street on its maps,
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IMP , rrn.SDR7PTT Ts it a designated. right of wpy.
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jEPf'�,5, vr^.r.TnF: Yes,
�'t . V Sp974T{: Ok that' s all T ��!antPd to know, thank you.
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WOOD: �?ro deeded it ori-inally. . . . . . . . . . . . . . T mean are
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j the TR'ards indirectly the people who inherited. it ? i
pMRS. YAn?OF: The v^,ards are not connected, they are not descendant
{ of those people, i
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I'PS. ?^'OOD: No not descendants but could they halre purchased. . . . .
MRS. YA_NOF: Could they haire? f
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l;rIS, WOOD: Pid their?
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IMR. MARTTT\T: As T understand hour argument their title traces to {
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l�those people but the deeds th^.t their have only Fo up to the edge {
I of Trei.ra. Avenue and your ar- )ment is that those deeds although
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i1they on there face go only up to the edge of Treva. Ave. in fact
?nclude up to the middle.
1,7-9. v. ANOP: That is correct because it is a maned but unused
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I1 City Street.
• ± MR.S. WOO): Then it does trace to that people who in 191.1, granting
H the right of ioay to the City.
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PI Ps. vANOF: Yes.
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MR. MARTTN; Are there further questions? Do you wish the Wards I
Ito sneak?
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IMRS, YANOF: T think only if there are questions that they could
iianswer better.
MR . MARTIN• Are there others who want to speak_ on this case, we
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j1do have the .Attorney for the City here this eveningand it might
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lhelp if there are not further who wish to speak on. behalf of this
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lreouested. permit if we bad. the City Attorney now speak,
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IMP . SNAPIRO: To me there are two questions involved hers: We
Aave since the opinion T issued December 19th asked around a littl11 �
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!1 bit and it aprears the portion of Tr-ira Avenue in questior. has
i+been maned. for 1.0 years or more and it also appears as if the City
has never formally acquired title to the property. On the law,
, J I
( I'll disagree with Ms. Yanof citing an 1861 case that would give
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Ithe Wards a title to the center of the street. A situation back
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flin 1861 was certinly a lot different than now and it is my
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i�ianderstanding that the area up thare was owned at one point by one
Ijindividual and the portion of Treva Avenue that we are talking
about was supposed to eventually become a city street for purposed
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� of further develon_ ment. Tt seems to me, T haven't researched the
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ititle because T don't think that it i_s encumbered uron me to do
Iso, but it seems to me from i4hat STs. Yanof has said and what is
,! ,-one on before in this proceeding that the portion of Treva Avenue
11that we are talking about the complPte title to that resides in
' somebody other than the Wards. Tt must reside in whoever owned
l it in 1PIl and or their heirs, distributees, assignees, successors
+ or what have you. Tt would be a fairly quick matter to go into
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the Court Nouse, T suppose, and taking a look at who owned that
portion of Treva Avenue in 1911 it could be searched forward to
until 1976 to see in fact.,, if they ever did deed it out. So T
jump off a+_. the premise that the "lards do not own tb.a.t portion of
i TrAtra. Avenue. And. my understanding of Section -�5 of the general
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City T,aw, would require a in roth the first raragraph which
states it exprpsslir and in the second paragra.uh wbich T 'm of the �
opinon can be construed to require that any Hermit given by this
Board. in a matter such Ps this , must be or shoiiild be given to the
1yerson 1,,,ho is the oimer of the rro-nerty. Tn this case_ , specifi_csT y
p
I� if on Toolk at the fi_rgt p racrrp-p�) it can Pxrresc renui rpm- ent. Tr. i
Ith.e second. case T think rPa.din7 the entire se^,tion together, it j
would also reauirQ that the applicant T)P the owner of the nronPrty
inn_rd6n tp cpt a n.nrPmi_t to build on the nropert.v. Tr my opinion
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that on pecember 101 T believe T asked that sr.ecific question and
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certainly poi n tP..d out that it would be required in my opinion. T
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differ with nqs. Yanof in certain respect to whether or not the
j1_861 case iroiild, ai_ve the W-1-rds arnr ri rrht in TreVa Ave. whatsoever '
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There is rinot;l�er point though that T rli r? rai_ca an(j T _O ti r-r�rl it
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' being, r'isci_i.gsera in t1le mid Utes of the T)er-Pmbpr l_st ?neet _r- of the
!I R7 , an,' that i.-q some of the actions of the 81.50 t p t T referred.
Ito in my memo that T +bink that the ('i_•t Jr i s entitled to. The
,irholn hi_story of the case ind.icntes that th.p W—rds nriainall.v
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approached the City requAsting to bui_1_d their pr. opogpd ga.ragP
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IS
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�! T1rettir much as they laid. out on this map. The letter originally
went to Mr. Dingman and he sent the letter on to me asking me
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what the Citv could do, if the City could go ahead and. sell it or !
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what. T _responded to him and this was in about June or July of
last, year and. said. iif the City were to sell it thertd. have to �
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� ) discontinue the street 2) declare the land as surplus and I
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!� �) get an appraisal and auction it off to the highest bidder
setting a minimum bid at the appraised value plus the cost of
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the appraisal and the cost of advertising. T did state in that I
letter also that a permit was nArmi ssible and. T was atrare of
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f rection 75 of the ('eneral City Law, but since their were talking
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about a germinate structure T th.o?zqht perhaps they might rather
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r own the property or at least own whatever the City could give
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them, with respect to the property. At that time the 7,1a.rds were
represented bi, p.obert "'illia.msorr., of Mazza , Williamson and Clune
nff_ice and it was his determination and what he communicated to
me was that they had made the determination to go ahead and buy
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the property at auction_ and we should- go ahead. and get the
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appraisal made. 17e did go ahead and get the appraisal made and
iiit cost us ""125, and we also went ahead and advertised the public !
1 auction which cost us another '15 or '20. The appraisal_ came
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back and much to eirerybodies chagrin or surprise it stated. a
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value of the 8 foot section or strip of Treva Airenue to be of a
value of ``500. This when added to the cost of the appraisal_ and I
I the adirertj sing Brough+., the minimnzm bid un to about " 650. Just.,
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'i before the auction, _T_ was made PuIrare th& r. Williamson no longer l
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E represented the Wsrds and now T, s. Yanof represented the ?^cards.
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And T .,gas asked what T thought they should do since they felt
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that `°''700 or ""650 was an awful lot of money to spend for an 8
j foot strip. T suggested that if nobod,r else bid at the auction,
! that it just wouldn't be sold and then they could go ahead an
applir to the R7A for a permit. T exrressly stated at that point
though, that T would expect the ?dards prior to obtaining a permit
from the City to reimburse the City for its out of pocket expense$
�j which were incurred specificall-y at the instance of the Wards
through their Attorney, Mr. Williamson. That' s whtr in my memo of 4
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j 'december 19th i've asked that T �roul_d. hope, t.,hat before the 7�7h-
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�Iconsiders the mrantinj7 of Pmr permit, that the -payment of "'1 .90
i� Or nerhans it i_s 145 whatever, be made by the ?Wards to the r _ty
(' for o131 of rocket exnenses of which halre been incurred at their I
i_nstpnce, co here is two thinmc T sunnose 1) that TIM of the
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Ii oni_nion that the a-ds do have the burden to shoii, that their are
the owner of the norti.on. of TreiraI .Aire. anon l hich they Trish the-
Ijm--t, and 2) -if thPlr Can show s?ich ol,rr?.ershin t;
to the sei sfactiol
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41 of the Board, the Poard ma-r r-rant the nermi_t in its discretion,
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II I'i1,i.t T Gr()til_� r Pr+a _n.l_tr 1-�rtna -f-1np_fi +,}fin �?r�ard T,rnitld reaui�e the
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payments of the city of_ the out of pocket expenses. T think that
th-e ri_ty h.as been constant in its Position -in this matter and if
?! there was anis misunderstandin- on anybodi_es part it !'.prtai_nly v•ac I
i not brovqh+, on btr an�Thin7 +hp . said.
_+ +hA �_ tTr I nP,^+ai_ l_Zr ramom}i ,
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ii mjr rli_s(`1)cSi_pn1Z T,Tj fh 'Jr. T"Ti_ll i_amson a+ the time, and when he as'-1
i! me ),,r Mich T troilaht the bi ddira rrir'e T,n,31d be, T responded
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Ij that T did. not know, that T knew that it would be at least the
H cost of the pnrraisal_ T.rhi ch would be "125 plus adirprtisin cost,
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11 -nl_us wh.atP,.rer the land is tarorth and I had. no idea what that wes
j worth p.nd. that is i,rhy the were having an annraisal mp-de. Wh.pt he €€
if I
may n TFr I
or mar not have omreyed to the arils, is certain7_jr beyond
my kn_oi ledme but �rhen the '7i+-Nr is dPpling with neorie who arm
1 renr-sPnted her an attornelr, all can do i_s deal with the
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attorney and hone th?t. he "=veyq -.YPctTv wii!?t ir? hpv- sp.i d. to
Tf +_.h.e-e
Pre r')11v ri,otPc+i_nnc abniitSection 7i5 renerai
_ , of the I
II ri_ty T,aw T n0-ti_.,ed at. +1',e Por Amber l_st meetina there i,Tern.. clot i
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of aiiPstirl-_s 9 T t,� be }i'-'n-nmr to anS?,ror them.
?^,1(i(1T1- T h_aSrP, foti.r oUp,do -s G Ar.i f l.r`c't.�.�Sr, Ynii ref-r-ed at
i +1-)-e first; npr+ of your discussion to two nrovisions of �eCtlOn �5,i
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T1 like to haire you cl_arifir iehat they are, second. . . . . . .
r,'P g11ADT�(1: Let me take your Dues+] Ons one at a. time. OM
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'ention 35 of the, General ri tv T_1pir i_s written in t,,ro parar,raphs.
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The first naramreph starts orviously lead_inq up to action. The
i second raramranh bemins on the next na e. . . . . . . . . . . . . . . .
�! Thr, `.�')OT): ":T?i_ch. is bpir.Z cut off our Corrie~ .
j n?n . TinDipO: T belie�re if you flip it. over, ok, the difference I
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� r. + ni �_S t0 a l_a?-+crr� c�t'�pl1t, that in_. the f'i-- � � _ 8T'agra1J�- the. owner has
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A to show that without the permit, he can not o;et a r-a-sonable
IE return on hi-s lased. And it doesn't require that the street be
I� shown on a official map or plan for 10 years and it doesn't
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require that the city has not acouired title. There is two �
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slightly different provi_si_ons T i,,rould Gay though taking both of
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them together that even on the second provision, that it would
I� seem to me that any applicant for a permit still would have to
be the owner of the land in ouestion and he just would not have
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I to show whether or not it would ield to a reasonable return.
! MPS. I^TOOn: Alright, you've answered two of my questions, the
third and fourth are why do you think that it is in our province
i to determine who ot}ms the property in question and secondable I
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what Board of 7oni_ng Appeals could possibly say about reimbursing i
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the city for its advertising costs.
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�! lflP . SuAPTRO : ti`rell, if I think that it is encumbant upon the Board !
of Public 1R'orks to have proven to its satisfaction_ that the Wards
are the owners of the ?property in questi_on
!� TJR . MAPT71\T: You mean the Board of 7oninq- Appeals
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P,TP. SK.APIP.O: 7ycuse me, the Board. of Toning Appeals, that the
�f i,,ards are the owners of the property in question, it would seem to
me that it' s encumbant upon the Roard- and before the Board can.
grant a permit, it would have to ?,e able to make such a determination.
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i! Tt is also true that in cases such as this , the b�_zrden of showing
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I such things in this case ownership, should be on the applicant
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rather than on the RZA, certainly has no way of its own other-
' than to ask me to research the title, who owns the property, T
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!° think that it is in the _record already that the orl-,r claim of the
�.^'girds +.n the property is in the alliance upon a 1861 case, which
,I in my opinion .from what I've heard, has no application in this
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matter. T think somebody and whoever that somebody is, is the
I grantor to the City of the right of way in 1911, that somebody is
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Still probablir the ournPr of fie of vThat is called. Treira A`re. up j
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jthere, and unless he has conveyed it out and wp will assume that !
11be is dead or she' s dead., T would assume that they are heirs and
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I' that they own the property.
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1 r?T , V,APTI-N: Can I follow that third. question of Ms. Trlood- out.
11While following your a.nal_ysis of the section we ought to 2sk for
; some showing that the person who is seeking_ such a permit is the I
downer, this is a poor body to determine highly technical questions ►
i o.f_ title. Surely even if we are nersua.ded that the 1`ra-rds have
Ititle that would not be determinative if the heirs of that whoever ?
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it is Y party in 1P11, same fongard. later and_ challenged our
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decision. "o, T wonder if what oTe shouldn't do is be reasonably
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� nersuaded that the party in question has a claim, _reasonably claim. !
to ownership, and then proceed on the assitintion that, their are
I owners , leari_ng them the ultimate worry about whethe- they are the
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htrue owners. . . . . . . . .
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7R-, gTJP-PIPO: That certainly is a noC8iblp wp r tr1 r��^Ot�f e[1 � T mi Cbt `
y _
add. teat the exact same di scuss on took place between. "2 . '.TilTi_amscjn
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i1 2nd me last JUr.e PrO _TUl-tr ar1.d tha4-1 S -t
-1 whir the decision aS
i1made back then for them to take a nui_ek claim from the rity. . . . . .
I' TJP. r%TApTTTT: Fut that would not haire rP�.ned them amainst the
I� heirs of
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IM PW • 1,rell e mon hat t1-, C,i_i-+Ir 11a S been rnai ntei n n t11
. x., _ t t_ e ir� e
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nronp—tir Un there for a. number of years and i_t was thought that
there might be a ^?.ai_m of ad-verse nosCPssi On.
T 7'. WARP: We have been maia_:r.._rg th
a+ property.
T-
�ePmTnT: 1Tell-, ok lets com plete our ai estioning of Mr. Shan, ro
1 and then we 1,,7i7LT give the "-rd.S arld their 2ttnrne,r a chane fpr
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anir -2hllttal.
fi Trtr C 1ATnPT1• TYiP �.aGt nll(-st:i on um-, T,rhy; i e it in the province. Of t1)(- i
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E, Rnard of ?orri_np, Appeals to grant relief to the ri_ty for its
Ax_penses n the financing of this nubli c auction?
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Sur,DTnn• 1,Tbir is it in the n_ olince of the Board of 7o.._in
l T igoUl_d hon- -personally tbpt. before. the R?n grants r-lief on
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an arrl cation which 1S discretionary to grant, that ..the B7�q €
hvrould take into consideration the amount of work and the amount f
i. of money that the City of Ithaca of which the B74 is a Board, at
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; the Pxpress inst,ancP of the anrlicant T think that it is only
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'i reasonable to a-sk for that, there was r_Azrer Prydoubt inan.Vhndi eS
11 mind at. le2st not in my mind, or Mr. " illiamson' s mind that the
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only reason +.he apprai_sa1 of the property was being, made uras to j
sell__ the same at a public auction and that the only people who 4
were interested in the property up there and the only reason that
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it -was all beim done was to accommodate the 7;,rzrds.
n-c. 1,Tnnn: T can see that it is reasonable, but why is it 1,,rith.i_n
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' our. power?
ITSF? , Sue pT PO; T'' f r•
, _. _ _ ell, it' s within hin your power in my opinion to acauir
that the e1150 be paid. to the r it,r or not before you grant a permit
11,!hich is within your discretion to grant. T think that it is a '
, reasonable condition that the R7A is certainly able to lay down
ia.s a condition_ precedent to granting a permit,
D7. M.'!RTTM: The Board has to my recollection never in the past
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on a variance or other discretionary relief asked for money to be
� ppid to the city, as a condition to the variance. Is this somehow )
different from a variance?
MM rHAP R. 0: T think it is. This isn't th.e_ variance for one.
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11 7 P., NWA.RTTN: Put it is also discretionary relief alright as you. . . I.
IITAR• SH4PIn0: Tt is discretionary relief which is being asked of
the City through. a Board
MR. MARTiN: eight
S??APiPO: After the arplica.tion has already requested the CI_ty
� to do something when the pity has done something which entailed I
1� the expenditure of public _funds. Now believe me and T say this '
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in all candor, for the amount of time that T'jre put into this 1
thing since June or July, T would have rather raid the P150 myself,i
I� 'Rut don't take me up on that. T really feel that the principal
City has asked probably glom the lines �
involved here in teat the � _- _
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! of about 7 or 4 times a year, to discontinue parks and public
streets and to sell them at public auction. Every time we do that
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� we do it with the ta.cid understanding and in good faith, on the
ibelief that when the public auction -is being held the rerson that
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!jreouested. the auction in the first place, would be there with the
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ji money to bu-Nr the nroperty. Now here we have the situation where
the arpra.isal came back a little higher than what they had j
Ilanticipated and instead of going ahead and dolr_g that which their
I! had requested, it seems to me that the ', ard.s are now backing up an
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fsaIrir.g w-11 sine it i_s going to cost " 650 we will no-,r ask for jus+
a nermit which won't cost us a cent and it is too bad_ that the
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I�City spend the `1'150 but such is luc4, it is not worth it to us.
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1Tt seems to me that the R7A has the rower and T think the responsi ,
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lbil_ity to make certain thatany expenditures of City funds for thel
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+purpose of selling; rublic lands when they are eVnended. at the i!
express request of an applicant for a hermit, T think that the R7n
has an obligation and. duty to the City of Tthaca and the tax
i`naye_rs of the City of Tthaca to require that tba t money be reimbursc ed
Ito the City before any hermit is gi-en.
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j PR. G? 7NBFnr._: Ts the nermit that t.,,e would grant automatically
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as a quick claim by the Citv. . . . . . . . .
TIP . SPAPTPO : No, a nermit would simnly permit them to build a. �
garage on that bort;or. of the demar,ed_ na_rt of Treva !`venue as i_t
now stands whi-ch. tb. ,- grant to build in. The original_ owners or
people -who could sell_ good title to the nronerty came alon7 F rithin j
a 10 -Nrear neriod fromm the time the 1,!ards built their proposed j
r7arage there, T would imma,P;ine there would be a law suit in the p�
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jform of a declaratory. . . . . . . . . . . .
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TJT . 1VIAPTTM: 01- if the Cit?r coulr1. show that it had title by a0vorsr�
ii-nossessi-nn. . . . . . . .
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�M , ^.T-T SPT-10: That +n0
TIT , T1TA7TTnT: Our *rant of a nermit not be bi r�d.i_rcr on the
i-r. that. evert. I
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r:?P , 17-T p ren . That tn0
uq� )R7Au• T have a otT _ek nu�stior. Lets a.ss,zme that we know
who the owner isa_s d it, the ^i.tir hdesignated as a r. iFht of -orayowner for j
a future road. Does the City OisPose of this riesio-rati-on aq SUC`h
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a.s yet, officia.l..ly +hat i.c?
r^r cHADTPn : That norti.or of Treva Avprlie according to mgr
p
tion Ttti,jc11 j_g �l_.cpl{ a ilii a T)(-)i- ..,ac rliscont rl7ed- a_nd n1 , i__,?.to
ciirrilt]s �_ard. ht* "(,mm�r rntmr.il_
t - thW �ar; diScontn -10 lt
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n"pK1eDP7AV: You would i_r,terpret that the Citv -,o,lld thrnuc- ,r t1
the desi enation of the ri-ght of r•
ii "P . A DTPs: Tt i_S dema-ped.
TSP , TT.nSpP7nu• uow do they propose to aet to the vra.ter line once
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�;somethin7 goes wronrr?
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T°TT- STA-°'IRO : The City r.aG P. ri 7ht of wRy of that portion of R'rE?tra I
i A,,re. that we are talking about to mPintai.p the ,Tater line.
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rn'? TIgCpR7 K: TTianlr zrntZ.
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rrP , T4ARmT1\T; nk, if we are finished- =with nuestions for r"r, Snari.rn,
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rP?^hars Nq. Yanof irnh_i 1latrc goTno -fiirtI-,nr thir£rg to ari(i . f
• Vp vAT\Tnr+ ; T t ri like to +p T.'r.
rPsnonr? Sb.a.riro' s two points.0ne
about +,he ownpi —i n and +.he other ahnut the '�I.�in, T rip not dispa-re
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14ith Mr. Sl'hani rp tha4- tlni n prs PrP r)pt +F1P camp 2g +Yio✓r were i rl l F��jl
fi_n. many respects however, first of all tyre rev rPl�ri.nrf on one
�,p
1 lghl case for +.he nrornsi_ti on thet wben your deed brinras your
Inroperty to the Pcl-e of a ma-ped b?h.t unused city street that ;rou
own to the center e. PrP rPlyi_nP on a series of cases which begin
prith a. 1861
II case, which T han_ nened to hasre with e ard TIm not
I� 7oin_g to read Plot from the case but T'm aoina to simnly o.Uote one
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eVcArnt 14hi ch T think makes it clear that the situ?tipn in that
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ir-pse was exa.etllr the situation in this case. There �,rere P number
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i of lots 1"rbi ch bad teen deeded from a 1Prge area. and the court said
that tie simple f_th?Pfiti_on then is whether a con-eypnce of a. lot
(bounded on a piece of around thus laid out on the map as a street i
Hand called P street but which is not in fact, a ?public street or I
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lihiahway carries the grantees to the middle of the street arra the
1P,ns-rer the court gave wRs ire-, and that wp.s just the beginning of a
li se-ies of. cases. T didn't come rrerared< 'with a memo of lavy but T
think in the absence of some case overturning that or some indication
that the cases hailre not as is our contention_ none in that direction.
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T',Te have come for�Arard -rich our at, least, indication that there is a �
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!I claim to that land by the Wards .
I YIR . K2_SnR7Au: That
would be the claim to the center of the right
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of -way would only be true if the land. owned in the right of way
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originally belongs to the a.dlacer_t owner or buying owner. __T
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this narticu.l_ar case l"Te don't knots Tho the owner of the richt of
wav is and. that is vorbere the issue is, T believe.
NPS. VAFOF: T don't think that that., is true. �
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WR. TKASPRZAK: ?Nell, T'm not a la7q<rer So tba.t T can argue tb.at I
Hnoint but T think that T'm riaht, that the right of way only
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'lbelone_�s to the o-kA.mer if he originally owned it and granted the
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right of way to the City.
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vANOF: That is true i,�rith the time that the origina_1. oirrner
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deeds out lots which exclude any _reference to that portion of th.e
to
ffland wbi_ch is later called the street but then they sell those
'dots and as the Lots are sold the ownership to the center of the
Iiimaned but unused street passes along with the title to the lot. A
!; to the second question about the `-15C, T would like to make it
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very clear that the Wards had no fraudulent intent ?qhatsoever and
' that' s lghv T said Arhen T first stood un here that there was a
limisunderstanding because it seems to me that that is the best way
to describe what hannen.ed . The T�Tards were. led to believe for
Isome .reason and T don't know exactly what the sArords that led them
j to believe this rarer- but they were led to believe that the easiest
ii1�.tair to solve this problem wps to buy that stri?) of Land and they
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!i wPrp also led to believe that it �,,,ould be for a. nominal sum.
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`? Arpraising that triangular piece of land at '"500, nuts a value
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Hof an acre of land somewhere around nineteen thousand dollars and
s
''' T don't think that anyone immapined that it 1,rould be that much.
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,! And it simply became r_robibitive but when the ".Yards did not proceed
j; to buy that 1ar_d at the auction they i•teren't trying to cheat the
; City out of their "I r-;0 and T can strmnathize Arith Mr. Shapiro I s
desire that the City be reimbursed but my question is why the 1,!ard�.
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�i T mean, T don' t think that, it was the T^'arils fault, T
don't think
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that it wps the Cities fault. T -i�ToUld also like to clarify one
point that might need cl-arifying. That is that the City does not
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ma i r_ta i_n that stri.n of lard, The ?'hard s now mow it and the Tr+ards j
alonn- with the nei�-h.bors on the other Side of that strip, paid to r
'i ihave a tree taken dovrn. There has been no action to aCqt_u _ e title
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or to establi sb +T,Pt. +hP ovreners have or that the ad acen+_. landr
i; Oi^rners have ar,gU.i_T'ed title by adverse nOGfieGSi On, Ri,t
I k
Or fact doasr ' t mai_rtair that stria.
1jTVM n,RnRr"TT\i' Are +here arV flzrthAr rlur�et-j_ons -in this rpsr' froY!.
H _
�imembers of the poard.
11 T,7 S. 7,�,.NTOP: "'p-'rbe "r, ''a rrl, wog zl_d you like to add aryt3�i_n to
'jwb!Pt T sai_rl. about t'he ma.1r?+erarnre?
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1E .'77 . ,.TART,• Tri fp<(t ,.ro arra our n-i_ahhors i,-?re inforr?P_rl ',y P, re-p"ca- f
GPrtative of the 7- _tv that +hey i,,r,-re not o-oi_n- to maintain it I
antrmore arfl theft ,,P ,YPrp trO4rc,' to I acre tri arir? +her(-, -,rps q (qp,-cl !
�Itree on the n-onp,+v P I(l "7,- ar�r,rna(1l the -.I tir -qnd were i nformPCl
i by the ri_tjr +hpt i_f �qp t•rpntcO the +roA rrmnuer3 .,rP wprA croi_-n- +p
fir) r1a-�r to �)!n!lrP i '}' rPmOtrF+rl
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TM' RR^P'PTr.T, IT-Rnk you. TG th-r, nry flirthPr testi mon- on t1�i c EE�
? 711 + -,t r_ .ce r bepri_na or 1.1.02_. I
case l l�? . _..en .h-, „ cc__n1_ud _ our C�
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i Trrt-TBnARD OF 7ONTNG A17PPALS, CITY OF A(7 A -I',YEr7TTTTIT7 97SSTO�T
OATrIPTL c;, 107,r,
A PP7A L 1102
'Jr. Martin mo-vpd to d,?nir rpliefreoiiest(n.-H. ir r 170P un(9er Sr?ction
1175 of the npnerp.l City T,a,,r. Rpsis for that motion Is that if the
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7T,Tprds infpct ovrn the nrorprty on which they wish to build the
Igarage, a question i.,Thich the Roared. does not 1-indertakp to rpsolvp,
their c
I lo not reouire P nermit under Section 75 since the testimony
indicates that the area is nn longer clesi-gnated for P street.
17r. Kpsrrzak seconded the motion.
vnrT,,: yes No 0
Aprl ication has been rleni -d.
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BOARTI nF 7ONTNC— APPEALS, CTTY OF TTHAr_4 s rTTy TTLIT,T., TTHACA s NFW
YnpK, APRTL r, 1976
APPFAL 4 1110: The Appeal of James Bilinski for area variance
under section 30.25 Cols. , 4, 6 and. 13 at 207
Stewart. Avenue in an R.-3 use district.
NIR. STFiN: My name is Stuart Stein and T live at 1018 F. State {
Street. I'm the present owner of this piece of property and Mr.
Bilinski is the appellant, if that is the legal term. . . . . .
MR. KASPR7AK: You are the appellant since you are the owner.
MR. STFIT\T: No, Mr. Bilinski is the appellant with the approval
signed by me. I 'll explain the circumstance. Mr. Bilinski is her
with legal counsel to speak in a minute. However, T thought that
since T am the owr er o-' the property and have lived at this addres
for 10 years that some of the background circumstances would best
be related by me because I do believe some of the background cir-
cumstances hwe some bearing in the case. T lived there as I men-
( ti or_ed. 10 years and prior to that 7 years within 150 feet of this
property at 612 M. Seneca Street. In this neighborhood as many
of you know, the lower east hill neighborhood which is described
in the information tht has been riven to you, is in the neighbor-
hood of some change and some interest in the community. Among
the number of efforts over the years that have been undertaken and
I've participated in these to a certain extent. Can you hear me
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alright? There has been an attempt to improve the neighborhood
and to keep a mixture of families, students, elderly and young
couples in the area. `Tow, T moved there with R. young family,
four children, was interested in the neighborhood school, living
near Cornell and downtown, enjoyed the neighborhood.. After 13
years my family grew un and T've just moved recently a year and a
half ago. T undertook the process of attracting, attempting to
attract another fami_17r to this house. This house ,.!hen T bought
it was a rooming house, it has approximately ,Ono so . feet of land
in it, of space in it. Tt is on a lot that was laid out before
the turn of the century at what time T do not know, Tbelieve the
house was built in 1900 and T feel .reasonably sure that, it is
w.1-thin a few years of that. The house ids large, it is one of those
large old houses that exist i_n areas like this in many other areas,
in •nlaces close to the center of downtown. Tt served my family
-ell in convey+i_n�- it back from a rooming house to a single _family �
house but my family t,ras reasonably large and- maybe it teas an un-
usual_ family in tris case and now T '-NrP mo-Ted and have attempted to
sell- it to another family. i -_ rePP»ld ;r the annlira+i nn some
bp.+ this �,- _
PSridencP t_ attempt was maple through the so1. nol_ and. � _thr oiaqh
fletosnprer advertisements and the fart of the matter is that it is
a Targe house and that most families do not urish to undertake
responGibili tv of a_ house t ith -4,000 so . ft. Tt also is a house
that does not have narking and there are particular circumstances
involved around that. Tt is unique in that sense, within 200 feet
of this house there is no other house except for one portion of
the Schramm' s house which i_s dust uTithin 200 feet that has the
same circumstances teat this holzse ha.s. There is no way absolutely
to fain access to this nropP.rty with an automobile.. The sidewglk
is L feet above the arate of the gtrAet and the house itself is
another four or si_Y .feet above the wits the exception of
possibly a crane or a derrick to lift a car up on the site. There
is no other way of getting access and T thought about that but T
felt., that that would be somewhat urreasorable to undertake. So
we lived there i%,ithout parking, T have two cars T rented a garage
nearby and parking space is available nearby. It has sever_
bedrooms, lilring room, dining room, kitchen_, two baths and it_. is
a fairly large house. At any rate those are the circumstances at
this time, T still ourn the house. T hazre a purch=ase offer on it
from Mr. Rilinski and his 1ATife, a young couple who wish to move
into this house. Ouite naturally they do not feel that they can
occupy that much synace. They want to live in the neighborhood by
choice, they feel that it is interesting to them ,just as it was
to me, as a place to live. Tt is quite reasonabl.v for them to
feel that they wish to put another apartment in there to help carry
the costs and so they have proposed that a.n apartment be made of
the upper floors and they live in the bottom floor. That means
that it becomes a two family house. It is an R-7 district which
permits multi family use. The use is not a matter of concern here,
it is a permitted use in this district, what is a matter of concern
are three items which are listed on the appeal. One is that we
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are requesting an area lrariance. ?''e are requesting a. parking
variance and there is a question about side lot which is 4 feet
instead of the reouired 5 feet. Let me take those points up very
quickly one by one. The first point about the area variance is
a matter of some interest concern, an irony to me because the
Zoning Ordinance as it is now written was written and revised by
the Planning Board of which some of you may know I'm a member.
T've been a member of the Planning Board for some 5 years and one
of the responsibilities of the Planning Board over. those 5 years
was to revise the 7oning Ordinance. I participated in rewriting
this section of the Ordinance, it must be three years ago at no
reference to what is before you at this time. There are two point.
involved in this question, one is legal lot size which at the time
in an R-3 district before the Ordinance was revised, I believe was
5,000 sq . ft. After some study, the Planning Board decided that
for many R-3 district, 5,000 sq . ft. lots were too large and.
resulted in many non-conforming lots onwhich there were already
many buildings of the age and vintage of this building in question,
and that lot size requirement was reduced to 3,250 sq. ft. That
was to set the legal_ lot size. Now the second auestion was the
matter of density requirements and at that time I believe the
density requirement were 1.500 sq. ft. Per family, per dwelling
unit and for existing units that I believe was retained . So these
were considered to be separate issues, that onee you have a legal
lot size than you can put on that lot a 7250 sq. ft. the number of
dwelling units of which 1500 sq. ft. could be divided into the
total lot size. Which in this case in this lot would make this
the area variance that is being requested here unnecessary. How-
ever, we are requesting a variance because for another case under
another circumstance at least a year and a half ago as T understand,
a. petitioner was before Mr. Jones asking a question. He came to
me as a member of the Planning Board and said, what did you intend-
to
ntendto do an_d T said when we wrote this we intended them to be senerate
and he said there is this question, and T suggested that he bring
it before the Planning Board and the Zoning Board. He came before
the Planning Board, the Manning Board confirmed what its intent
was and T did not 'Vno�T but it went before the 7oninq Popr(l and
you confirmed the other intent. T do not mean to nriti(-i7p irou
or Pnlrth_inpz of this kind, T can tel-1 you 1�,Thnt the intent was
because T wrote it. 'hat is beside the point 'her- you ba-m- iiidged
Ot�j-n,TiSP P year n—I P 'hnl-f Pao -,n TIm- })--p before you to qs7,7 for
P variance. There are some stern being taken in the ?I--Pnning
I:zoRrd to correct this matter but that should not be a matter that
enters into this concern. The fact of the matter is howellrer, that
while N-?-. Pilinski icz asking for this irsrjpnc-e that the npighbori-r
nro-nertir owner the entire crrou-n of nrore-ties Pcrosq the 7,t-rPPt
and +Tler- Prq rin. tires Pnd there are mPT)s in t-h-- P-nrlicption here.
'rhe ertire group of properties across the street and T believe
the-P are six of them maybe seven, not one of them has a lot size
the same as this lot they all smal.ler. 71.reryone of them.. has
arartment unit-- in them r; 6, 7 and 9 Prn-d T would sav that one of
the JOVTest density units on this block is this lot that be-fore
you. in question. So there can not be any question in my mind at
least you have to make that Judgement, in my mind this is increasIrLP'
the density of the neighborhood in P wpy that would be detrimental
to that nPighborhoorl . 7x(,ent for the house that TIr in and T
lived i-n and Mr. Schramm' s house and Mr. Pushes house next door
and he since moved . T do not know of any other single family
houses on Stewart Ave. from where it begins to where it ends. 'his
i,ras R single family house which T chose to create 1-0 years ago and
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now it is being proposed to being a two family house with 5, 6, 7
jun- its all around it in the middle of a multi family district and
Iwe are here before you on this matter of a variance to increase
the densi-ty from one unit to two units on this lot. The second
question of narking I've referred to before, there is no way of
getting parking on this lot. Tn fact, the Planning 'Roard staff,
Planning staff have reviewed this, indicated something that T had
not considered previously. That in fact, the requirements for
-oarkini7 for two units given the way the .7oninp- ordinances is writte
is less than the requirement for parking far my one unit, as it is
so in fact T am lower than the requirements for pPrI<-Jrs7 or. Mr.
The wait
Rilinski is lower than the requirements for parking. y
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relates to the number of bedrooms in the unit. Accord.in�_- to the l
7oning Ordinance for the 7 bedrooms T_ had with one unit T would
have had to of have one for the first 3 one for the next two plus
one for each one after that. So that means I would have had to
bad _four parking places. Mr. Bilinski .requires 3. So therefore,
we are lowering the requirements by this proposal. .At any rate
there is parking nearby. Mr. Bilinski has rented two parking
places the same taro that T rented. They are cooing to be available
to h.im so T have two cars T don't, know how many cars he has but
, there will not be more cars on the street. These spaces are not
available there are other parking places available. This should
not be a problem in the neighborhood. The third question in my
mind is a very minor one. It' s a four foot lot size rather than
la 5 foot lot side lot line. Mr. Bilinski in order to nut the
isecond arartment in second unit in, desires to have an outside
stairway which is best nut on this one side of the house. The
reason for that has to do with the arrangement of the house. Tt' s
P center hallway house and the best place to attach to that center
hallway and stairway is on this one side of the house. To do it
on another side which .is possible, would mean cutting up the inside
of the house in a. detrimental way and that can be done but its
much more desirable to the internal arrangements to put it on this
side of the house. That' s the mantle that is there. T want to
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point out again that this is not a use variance which requires
stricter evidence of hardship. Practical difficulties T think Pre_,
clearly involved in this and that the neighborhood in no way can
Ibe conceived of in my orinion at least to be potentially harmed
iby what is proposed here. Mr. Bilinski and Mr. Rich Greenberg,
his a.ttorneir are here to talk more about this. Thank you.
Nm, . MI!RTTN: Questions?
M7. VANMARTFR: i don't understand the arithmetic on the an-olication
the numbers for so . feet req?jired. T've got here something like
4750.
r.M . ;TPTN!: 'Jell, if you o;o by the interpretation that is now
(-urrent you need 3?50 sq, ft. for the first unit plus another 1500
sq . ft. for the second unit that means. . . . . . . . . . . . . . I
nv, VAT.RARTFR: Tt doesn't say that. It says only for multiple
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dUrellings. You don' t harp a multipi_e dt^Tpllinp% mTle definition
is clear.
7P STFTN: "'hen t4hat is your i_nternretati_on let, me be more clear
about it. mhat we don't nped a variance on the lot area?
TAP . STpNMARTFR: The renui_rpm.ent, the best t,rav void could read it
would be in the ranP-e of 4250, makes a. deficiency like a half. T'Tr
inclined to measure deficiencies by nercentage some are reasonable,
some are not. Lower nercenta7es appear more than. greater Percent,a _ es.
So T'M just. OlIpgti_oni nq the arithmetic . The Only reference in
the nrdinancp the 1,Talr it -is written relates to multiple dt�rel_lings ,
ri.Afi.r _ti Ori is r'l_ear. Win don't hp:lre ar1jr dpf _niti_On for multi_ , What
etre haire is multinip_ and that is three or more. You do not harp
three or more that i_s why T bring up the Point of this .
T,T . STFTN: So therefore the yari..ance, the area. -variance is not
reoui rcrT then?
Tri . jIAT\TM^.RTFP : The percentage of deficiency becomes in the range
of is listed here.
71P . STFTnT: T don' t understand the arithmetic.
NM_ ITnT\TMA RTFR: T thought you listed as 3960?
MQ . STF T1\T• The.t' s ri_crbt
T,"I . ZTA1\TNf!-RTFR: nk, if the renuirement is 4250 +lie rerc-ntagP of
trari_an!`e is somel,rhat ri_i fferent th?r th.e diffprenCp bpt?.Tpen 7060
and 4'750?
TflA TT7: nk, so the nuestion is wbrY re do you get 4250?
rT7 , ITT?T RTI-P ; `Tbpre do T apt i_t?
? , n�APT77: Yes
Vm . VA W1 PTF'? : T'm bus+_, ricki_n.v out ofone dwellinp- ur_it and. I.-bat
p i s addir_F-r is one dt,rel_l_inp- unit. Ne is not addin.g anything that
rel_ptes to mul ti rl e di?+al.l_ _n.crs. So it is the only thing that T see
listed in the nrdinancp.
R . STFTN: How did you get from 3950 to 4250?
vTR . KASPRZAK: : You apply 32.50 plus 1000.
r . `JANMARTFR.: That' s right, 3250 plus 1000.
VP MARTTN: plus a thousand.
KASPR7_Av. That makes it 4250.
7
MR . WNT'�'T:^FmFR : Your basic lot size 7250 we d-on' t talk about two
family.
MR . STFTN• T see, I see.
I
MT?. VANTMARTFR: We don' t talk about two family dwelling, it jumps
right to the multiple. 'ire reviewed this and documented. it for
your committee.
MR. STFIN: T didn' t see that, T'm sorry ok. T'm happy that it
works out that way.
MP. 7_4SPR7AK: We both worked on it too, you know.
MP . ST7TN: 0k, I remember.
MR. VANMAR77-I: You didn' t read it that' s all.
MR. STFTt\T: Ok, so we are talking about L250 rather than 7960.
MR. VANTMARTFR • Ts this a reasonable way to look at it:
MR . STEIN: 290 so . ft. ?
MR . MARTIN: Further questions for Mr. Stein?
MR . GR_FFNRFRG: Good. evening ladies and gentlemen, T'm attorney
Richard Greenberg representing Mr, and Mrs. Rilinski. Mr. Stein
very adequately stole my thunder and gave my whole talk so T'm
not going to repeat him. The main problem here which is not rea11_
a severe nroblem is whether this building remains as a one family
unit which .it is hard to sell_, which may not be sold, which would
nut a. hardship on Mr. Stein more than my client who is very
interested in purchasing it and. has obtained financing for it and
wants to live in the neighborhood. Tf it were not allowed for it
to become a two family unit the only other alternatives of use
would be either renting to one family or like one family the latte_
of which has been tried and has not been successful and the former
may require prohibitive cost or .renting to groups of students in
that type of situation which T think would not be as desirable as
having two families reside in the house. My client intends to
• leave the outside of the structure in its present form or to make
further improvements and that gill fit in 1ATith the n_ei_mhborbood .
Mr, ,Stein_ has said and T will repeat that the predominance of the
neighborhood is multi family, multiple student apartments and
dwelling units. So we are not talking about changing, you know
making this the rose bush in the corn field. The parking will
1I 8
remain a problem, obviously, but regardless of whatever use this
property is put these, will not be any parking facilities a�railable
and whether it be a one family with a mother, father and several
children who may hpve automobiles or two family or students or
whatever, the parking is going to be the problem and T dont feel
that would be proper area to decide it on since regardless of the
use the problem is going to be there. T don't feel that the out-
side exit situation is very severe, it' s a matter of one foot and
again this will preserve the outside of the building and allow
for a reasonable ingress and egress of the other f_amil_y. T have
P letter from a Mr. Fred Rolfe who is a neighbor in the area and
he has expressed that he is wishing Mr. Bilinski luck on his
application before the Board.. "'hat' s the only comments that we
have on it. T'm not going to take un more time repeating Mr.
Steins arguments, T think that they are all sound and T think that
the request here is a very .reasonable one and T think that i_t wil_l
both improve the area and improve the house itself. Mr. Stein had
to convert this house as he stated_ fr?r hi.s oi�,n rrartirul._ar family
use and it served him wpl_1. Mr. Ri.li nski now because he only has
his —i fe, he doesn' t have any children. yet and even given th? fact
would he mail 1' Pe-I a large house is too far in the futt]re to
r+rPdict. At this point he needs to convert this property for his
particular use and both finPncall•.T and must a matter of needed
space trill bare to CorZTPrt the upst_,ai_rs apartri.-nt. Nis altPrn-qtiv
to obtaining this variance would be of course that h �,� „l_d +
_ e o not be
able to purnh— it and it would to Fr bac! n �-hP tTl'aY+1.tPt and
roul_d hp-,r- to be sold. Ps P si_rale fapni_.ly unit.
nml, TvrnRTTnT; The point has been stressed that the Ri linski ' s are
going to live in the house and. that the area needs owner occupancy
or at least would be benefited by it, but... T gather that what i s
proposed P conversion of one unit into ttTo is essential_l_y irrevocable
and trill apply whether or not beyond the point of 14hich. the
Bilinski' s still are living there so it might well apply in the
case of a absentee ol,,Tner wbo is renting out to students Ps well.
ItiM . rTP77T\T'RPP : Yes, T feel that would be the case_ . The RiTinski' s
do hPve every intention of ma}ci r-q this the-Ir family residence. T
I� ^
II
f y
i
would presume if they elected otherwise woiil_d se1.1_ the property.
i
Whether it is an ourner occupied plus another family or two other �
I
families, the same would be the case.
MR , MARTTN: Or two units filled_ with students.
MR . GRFFNBFRG: Or two units exactly. Tt would be a situation
where there would be two seperately divided dwelling units. The
effects on the neighborhood itself, would really be the same
whether it oas the Rilinski' s or someone else living there plus
the upstairs apartment.
MR. MAR.TTN: Are there questions from members of the Board.?
MR.. KASPp?AK_: T want to understand one thing. You are not going
to or planning to alter the outside except the entry staircase
right?
MR. GRFF�MERG: Right, the outside will not be changed, other than
I
maintenance type of situation.
i
MR. MARTIN: Further questions?
nR. GREFNBFRG: Ts it possible to say how many bedrooms will exist
after the alterations?
AIR. GRFF-T\?PFRG: T presume and my client will correct me that Mr.
and Mrs. Bilinski will probably have two bedrooms in the down- stair
of the house the master bedroom and a guest room, potential nurse .
I T_ presume the upstairs wi1.1 have two or three.
Three bedrooms P
for the upstairs apartment which would accommodate a family of any
reasonable size. So we would end up with 5 bedrooms. T_ believe
there is seven now. So it would be a. reduction of 2 bedrooms.
f
MR . MARTIN: Farther questions?
MR . GASTFTGFR: The Planning Board raised the question or recommended
that the stairway be moved to another plane, the back of the house.
T wes T-pondering how seriously this would effect the proposed plans.1
• You see we have no plans.
MRS. WOOD: Where do you find that the Planning Board recommended.
that?
i
MR. GASTET_GFR: But acknowledged that this might not be feasible
right away. The Board agreed that it wotild like to see the proposed
outside stairs replaced somewhere other than the north side of the
house as proposed. Tt wasn't recommended but their would like to s e. . .
l0
MR . GREENRFRr--: The present proposal and again my client because
he is a purchaser who an owner would be doing this work but of
course do to the contingencies and in fact this is fai-.rlymoderate
take the time and expense to draw up detailed architectural plans.
The nroposed space is the best possible location for this entrance
Granted it is only h _feet from the lot line as opposed to the
reauired 5. Tnspite of that it is still the best location. Now
it is possible to move this however it will break up the interior
Space in a, harmful way. Tt wol.zld diminish the value and the
possible use of the property. T personallsr feel that the one foot
difference here as opposed to the hardship of moving it and the
end result would not be productive.
MR. C-AST7TG7?,: nerhars they had in mind though the appearance of
the nronertg usually these olztside staircases go unpainted and
d-istract from the neighborhood.
MR. CRrFNRFRG: t-'el_1, my client mans to have this as his home
and nrobably more than anyone else warts it to _look just right.
ue has ezrery intention of makina 'his construction both- compatible
with the structure itself and the neighborhood. All T have to say
in support of that is to say that it will_ be his home and it will
be hard to see him spending that kind of money to baire something
look both ug-l_v and distractfiil.
T'T, • TVPTTT,T: Are there .further questions'? Thank yov. Are there
others who wish to sneak first i_n behalf of the reouested area_
irari_ance? A.r. e there anv here who wi sb to speak in onnositi on'�
Tf rnt that ^onclud.es our public bearin, or. 1-11_0.
I
in r� rTT ( )PP 9 i 17 m OF u r s ry TTT- T eT � T\T
ROR nF n . T. n T 17TTV TT. 8 Fr, �. r ,S. .Tn
p,pnTT 5 t lq76
APP7 AT, a 1110:
T«rs . U'Tood- moved to Grant t'hP requested area Ira ri.ance. Dr. f rPArr,o
gpnonrlarl. tY e motion.
FTNnTN(7-9 OF FP r7T.S
T. The rliscrepancy is cm--all and the pror>oSed ronvprsion to tp,rn
,.nits would- be at least as beneficial if not more bene_f_i^i_al-
for the neighborhood as use of the property as one unit
rented as a rooming house.
2. The off street parking requirements of the ordinance can not
feasibily be complied with given topographer of the lot.
7. The rroposed entrance to the upstairs Pncroarhes onl-,r one
foot on the required side yard ar_d is the least 0-structilre
T-air to achiAzre -c(-,-9s to the seror?(9 floor,
I
Vnmr: Yes - r; ?\T0 - 1
APPT,TrnmTnT\T NAc RrPnT r7ANT-7D
II
i
I
i
c
BOARD OF ZONING APPEALS, CITY OF TTHACA, CITY HALL, ITHACA, NFT'
YORK, APRIL 5, 1976
APPEAL 0 1111: The Appeal of Harold J. Perry and Flva S. Perry
for use variance under section 30.25 Col. 1 at
120-140 Brindley Street in an T-1 use district
and Mr. Thaler is here to represent the client.
MR. THALER: Good evening Mr. Chairman and ladies and gentlemen,
my name is Richard Thaler, Thalerand Thaler 309 N. Tioga Street
and we are the attorneys for the petitioners in this case. Mr.
and Mrs. Perry haire purchased a. niece of property at 120-140
Brindley Street which is doom on the island area, west end of town
It was for the intended purpose of housing Mr. Perry' s business
which is that of a tering and wrecker service. The purchase of th
property was primarily intended to provide an area in a commercial
or an industrial zone which if you have your map, an T-1 zone pro-
vides that any use permitted in B-4 except that dwelling units are
expressly prohibited. A problem with a wrecker service, I'm fairy
sure that all of you are familiar with having had several cases T
belie-ire, that is, tht it is very difficult to find a zone to put one
of these services into. Mr. Perry and Mrs. Perry have operated this
business for a good number of years in this community and always
3
tried to abide by the laws and. one of the things that we find most
difficult in trying to locate the service as far as its headquarters
are concerned, is to provide not only the capability of servicing
the business but also making it possible to hire the help that is
necessary to make it a 24 hour service. In doing this, in offering
this service it is almost mandatory that you Yiave ,a person on premi es
24 hours a day in the evening hours unless you have a place for
that person to stay on premises it is difficult to get the proper
type of help. It is Mr. Perry' s intention that if this variance
is granted to place an apartment in the second floor of the building
which is existent on Brindley Street. The building was at the time
that Mr. Perry purchased it in bad need of repair and part of the
placing of the apartment in the building would be to upgrade the I
character and quality of the building. We believe that the varianc6
should be granted and requested on the grounds of hardship and also
I will indicate to the Board that it is not changing the character-
istics of the zoned area since the building itself_ will be used as
i
i
an industrial use within the permitted uses under an I-1 district
and also indicate to the Board that the Planning Board I think
called it to the attention and T think it is a valid one and that 's
that as of necessity the service that Mr. Perry performs for the
many police agencies for the many insurance companies that called
I
upon him. He takes vehicles that have been involved either in
accidents or he takes vehicles that have been illegally parked to
the area and they are temporarily stored until they are either
claimed or disposed of. By having somebody on the premises 24 hou s
a day the likelihood of burglary or breakins or the temptation of
burglaries and breakins will be diminished. We have received
several letters, T think that Mr. Jones has received a few and has
probably turned them over to the chairman. But I'd .like to gall
the attention of the Board if I could find the one that I was
looking for wherein one of the neighbors indicates one of the reasons
that they are in favor of this I believe is the A B Dick Duplicating
Service or Duplicating Products, Messieurs Hirlemann, they say that
among other things we feel that the occupants of the proposed
apartment would be an asset to the business atmosphere. The mere
presence of residents on Taber and Cherry Streets would help deter
I
burglaries and vandalism. We also received a letter from the
McPherson Builders T believe, that' s McPherson Builders Tnc . who
indicate that they would have no objection to having an apartment
being constructed on the second floor at Brindley Street and their '
primary feeling is for the same as the Duplicating Service. Again,
let me say that we are aware that there has been some unsuccessful
attempts to place .residential dwellings or apartments into the
industrial zones and they have not particularly worked out. But
i
here it is an adjunct onto the business that is going to be placed
in the industrial area. And it is an adjunct for three things and
one is service to Mr. Perry' s customers , the second is for the
security of the product that he becomes a person who is holding
things in trust, especially when he is called upon by the Police
9
Departments tho various agencies here to take cars into his pos-
session that have been illegally parked and the third function of
the living element in the building would. be to utilize the buildin ..
i
to an extent that it has not been utilized before. There would
be absolutely no purpose in Mr. Perry' s business at this point if
that the second floor was not utilized as the live in apartment for
the person living on premises for his business, there would be no
purpose to use the second floor at all. 1,Vhich would mean that there
would be no purpose _really to uT)grade the building beyond the
exterior and the first floor. 1,,Te -eel for these three purposes
or for these three .reasons and for the reasons given in the appli-
cation, that the nature of the area would not be detered or change
that we ask you to grant the variance that we asked for and it
really becomes a hardship to Tyr. Perry via the back door, T supnos
in that if he can not have the anartment on premises it is going
to be very difficult having the business located where it is to
have somebody close enough in residen^e to run the 24 hour service
i_mnractical.
Tom . MAPTTN: Our recommendation from the Planning Board suggests
that we might impose a condition that is quite consistent with
the rationale for the request, namely that if granted., the apartme. t
be permitted only as interval part of the business and that occu-
nancy be limited to employees of the business. Do you have any
objection to such a condition?
TGIF?. THALFR : Mr. Perry would not have any objection.
MR. KAgpP7.AK: T have a. question. You made P. statement before tha.
with reference to use, that the wrecking business would be unwelco ed
in residential area. T agree. The question is did TJr. Perry look
in other than .residential areas and along industrial area.s. . . . . . . . �
MR. TFALFP : The answer is that we have looked extensively. Mr.
Perry has been looking for the last 5 years to find areas within
the city limits that would accommodate his business that would be
large enough as far as the so . footage that he could afford. This
was the only place that we could find within the confines of what
it was that he was going to be doing and what it was that he could
afford.
MR. GASTFTGFR: How long has he been oneratina?
MR. THATFR.: At Brindley?
MR. GASTETGFR: Yes
i
I
MR.. THALER: We closed on it I believe in March, just about the
first part of March, didn't we Hap?
DR . GREENBFRG: I have a couple of a_uestions for Mr. Thaler. It
seemed to me that the sa . footage in the area that you speak of is
huge to say the least and I was wondering what type of apartment,
how many bedrooms etc. would be put up there?
MR. THALER: Dr. it is not a, we are planning on using the building
that is already there. There is a. first floor which will be turns
into office space as well as other uses in conjunction to the
business. It is the second floor which has been unoccupied, un-
used for as long as I can remember during the I believe the owner- i
ship of Mr. Hull and Mr. Meisslier. T think that the last time
the second floor of this building was used was during the old days
of Robinson and Carpenter when Lou Meisslier was still alive and
they had to have a place for excess storage, they stored things ink
the second floor of this building but, since that time I don't
think that it has been used at all. That is where Mr. Perry intends
to put the apartment.
DR. GREENBFRG: It is referred to that space. . . . . . . . . . .
NLR. THALER: I think that it is a two bedroom apartment, it is
big enough to be a hotel.
DR. GREENBERG: That' s what I'm afraid of.
MR. THALER: No, he intends to put a two bedroom apartment in ther
so that it would be an attractive place for an employee, his wife
and one child.
NSR . MARTIN: Are there further questions from members of the Board
MR. K_ASPRZAK: Suppose you did not get a permit for the house,
what would be the reaction from you and Mr. Perry be?
MR. THALER : Just to approach the thing as a practical nature, we
did feel and I think that Mr. Perry took a calculated risk to be
perfectly frank with you. One of the things that we put on our
I
application for _financing was to be able to have that apartment on
the second floor of that building. His financing is predicated onl
having it there. I would think that if he could not have it there,
► he is going to have to turn around. and sell the property. He
( already has a buyer, there were two people who were interested in
the property at the time when he bought it.
NLP . KASPRZA.K: Could he put it to another use or to the wrecking
business. . . . . . . .
MR. THALER : The answer to that is that it is not conducive. His
• business is first floor, ground floor, outside the building. The
only use that he would_ have for the second floor would be as a
i
subtenant or a tenant type business and Mr. Perry is not a landlor. ,
he is in the wrecking business. And he does that well.
MR. KASPRZAK: I have no further questions.
MR. VANMARTER: Would you review two or three things that relate
to hardship pertaining only to the building and the land that we
are .required to consider?
MR. THALE'.: I think as far as the hardship is concerned, this
property itself would., being an industrial zone, it has been
vacant, unused other than for storage, I think for about 5 years.
Really, the only purpose for this property would be to someone who
either wished to tear down the building that is there or develop
something on the first floor since the second floor in its present
condition is really not usable for gnvtbing other than storaffP.
If we can not and when T say we, IIm talking _about Mr. and Mrs.
Perry, if they can not do what they contemplate by putting in this
apartment, it would mean that they would have to pa.v a bonus to thel
man who is on night call, so thathe could live in an area that is
( nearby inorder to be the 24 hour man, the graveyard shift man. If
that graveyard shift man works 12 hotrs and since the labor law
requires that you could only have a person work forty hours a. week
without paying him time and a half, that requires a second mar_ and'.
thiq imuld be a death blow to the business if he tried to carry
that at time and a_ half or if irou try to add an extra. man. By
having this apartment, he can then provide that the man is only on
dutir r-hen called or when he goes out on call, thereby keeping down
the number of hours that he has to compensate his man. It is an
undue hardship, if he can not do this since it is not utilizing the
property for which he bought it.
MR. VANMARTER: Anything relating to the land or buildings?
MR. THALER: To be perfectly frank with you Mr. Vanmarter, the only
thing that T could tell you is that I don't think that the building,
in its present condition is useful for anything in the industrial
nature other than what Mr. Perry is going to do. Tf you are looking
for somebody to utilize that land in a different way T_ think that
you are talking about tearing down tYe buildin7 entirely and again
I think that that is a imposition of a hardship upon a land owner
since the building can not be used for a industrial purpose in thel
condition that it is in now.
MR. MARTTN: You mentioned that there is another buyer, however, . .
MR. THALER: Who is going to tear down the building and just use
the land.
MR. MARTIN: Or a use permitted in an industrial zone.
MR. THALER: That is correct.
MRS. WOOD: If the provision of the apartment is a condition for
the financing that implies to me that Mr. Perry expects to get a
rental income.
MR. THALER: What it amounts to is that he takes part of the expen P
of the business by giving the apartment in exchange and by doing
that he cuts down the amount of payroll since he does not have to
have a man on duty that 12 hour shift. He is only on duty during
the times that he is called. The rest of the time he is in reside ce.
Mt.. Chairman, I'd like to, I don't know whether or not you have `
the letter from the . . . . . . . . . I
MR. MARTIN: I don't have that one I have three letters. One from
Wallace Steel, one from A B Dick and one from Kissock' s, which I
will read into the record in a moment. Mr. Thaler, I'm finding
myself uncomfortable in an attempt to fit this case into the
variance mold and I'm impressed by at least the germ of an argumen
that this is so incidential to a use that is permitted in Industr•al
zone that maybe it shouldn't be viewed as a residence but an
" f
industrial use. Might the Board reach the results you want by the
way of an interpretation of the ordinance rather than by variance?
MR. THALER: The answer is that if you wish to put the restriction iit
on that the apartment can only be used as an incident to the businelss,
certainly. We did not feel that the strain to put the Board of III
Zoning Appeals in the position of finding that the night man was a
incidential part of his business, we are saying that it is. We
are saying that that is the reason why if we can not have it we i
can not maintain the property for that use because we can't afford
to pay the money to the employee to live off premises and be on
duty the 12 hours and then have two shift people in order to compl
with the labor law. And I think that by what ever method and T
think that you can see that in our application we have gone under
all three rather than just the hardship method. We've indicated
the facts and the circumstances certainly comply to C2 as well as
Cl and also they apply to C3. My feeling is that if the Board
feels as the Planning Board did, that this would be an adjunct to
the business that is there and cert6inly it is a mere extension of
the industrial use. Tt is not a residence per se it is a part of
the use of the business. And T agree with you Mr. Chairman, that
that may be more comfortable a place to put it but we felt the
strain in not saying• to the Board of Toning Appeals well you must
do this, or you must do that in order to . . . . . . . we brought the
facts to you as they are indeed and T think that the neighbors all
feel pretty much the same.
MR. MARTIN: Are there further questions from members of the Board .
Thank you Mr. Thaler. Are there others who would like to speak on
behalf of the requested variance? I.Je have four letters that will i
be entered into the record of the hearing. One a letter from
Andrew McPherson which states no objection to the apartment. A.
letter .from Wallace Cteel which says there is no objection. A some-
what more extensive letter from the Hirlemann' s on behalf of A B
Dick, expressing no objection and then going on and arguin7 that
occupants of the apartment would be an asset and would help deter
burglaries and vandalism. And a letter from the TKissock' s also
stating no objection, Ts there anyone here this evening who wishes�
to speak in opposition to the rpnnestAd variance. Tf not then
that concludes our hearing on case 1111.
I
ROAPD OF ZONTNC APPFALS, CTTY OF TTHAC;'A, FYFC TTTVF QFSSTON
L
� APPTL 5, 1975
APPFAL !� 1111
Mr. Martin moved that the reauested use variance be denied. Mr.
Ka__srrzak seconded. the motion.
FT'VT)TNC OF FArTS
1) The evidence nresented at the hearing would not indicate a
sufficiently unique problem with this property that would
justify detriating from the use specified for an industrial zon .
2) The argument that somebody on ?4 hour call is important to the
property owner' s business does not necessarily require that
the person on call _live on the premises.
Motion is for denial.
VOTE: Yes - 5 No - 1
Variance denied.
t
BOARD OF ZONING APPEALS, CITY OF ITHACA, CITY HALL, ITHACA NEW
YORK, APRIL 5, 1976
Appeal No. 1112 - The appeal of Mary P. Leary for the interpretation
of the Zoning Ordinance under Section 30.3-42, 30.3-66, 30.25 Col. 3,
• 30.25 Col. 5, 30.40, 30.54, 30. 101, 30.3-62, 30.24, 30.25 Col. 4,
30.37-4, 30.49, 30.57 at 325 N. Albany Street in a R-3 use district
and Mr. Robert Leary is here to present the case.
MR. LEARY: Mr. Chairman, I'm Robert M. Leary 1305 Camile Court,
Raleigh North Carolina. I'm appearing on behalf of Mary P. Leary
resident of 309 N. Albany Street and her sister Kathryn Leary who
also lives at 309 N. Albany Street. We also have authorization
to appear on behalf of Ina Leonard 323 N. Albany Street, resident
next door to the property in question and I will file it with the
clerk. I believe you received a copy of the appeal as well as
the report of the Planning and Development. Before getting into my
appeal I' d like to review what I believe some inadequancies in the
report of the Planning Board. I tried to talk with Mr. VanCort
today and was unable to do so. And there was nobody else in the
office who was familiar with the material so I'm constrained to I
guess bring to your attention some things that I don' t believe are
accurate in the report, so that you don' t have to operate under the
misapprehension that the Planning Boards report is an actual and
factual report. First of all that the opening statement is that
the lot is non-conforming but this has nothing to do with the case.
This states directly one of the points that was raised in the appea�-
And that is that the building commissioner did not issue, there wast
no application for a required certificate of occupancy because your
zoning ordinance requires that all changes and non-conforming
structures or premises must have a valid certificate of occupancy
that issues. So that the first sentence in the Planning and Develo -
ent Boards recommendation to you, and this apparently will be the
full record of the discussion before the Planning Board, is inaccur te.
he second sentence also is inaccurate. It reports that it might b
possible to have off street parking on 325 N. Albany Street. It
ould be tight but it could be done. Based on 30 years of residenc
t 325 N. Albany Street and a thorough reading of the Zoning
i� 2
10rdinance, I can tell you that that is an impossibility, legally
and physical. The third sentence is completely accurate for a
Xchange, Mr. Chairman. Ms. Leary says that the pet store is not
assessory to home use but is primary. This is the first accurate
statement the Planning Board is able to put before you. The fourth
sentence unfortunately is again inaccurate. The pet store according
to the Planning and Development Board actually takes up slightly
more than 3/4 of the first floor. And goes on to say that the
rest of the house consisting of basement, second floor and a quarter
of the first floor is residential. This in fact is inaccurate.
More than the three rooms used as display purposes and sales purposes
are in fact devoted to the pet store. So I wanted to bring this
to your attention, we will come back to this in a moment in my
presentation. But I do want to bring to your attention the fact
that you were not well served, I believe, by the report that the
Planning Board presented to you. There is a question also Mr.
Chairman about the definition of what constitutes a cottage industry?
I suspect that reading your zoning ordinance the manufacture of
cages is not permitted in any residential district and there is a
great question as to whether it is permitted in any of your
commercial districts. The first time that it is really mentioned i
in your industrial districts. We can skip over to the second page
where it was stated that the Mayor reported that Mr. Enders had
gotten permission for the sign and was in his legal rights. In
fact no sign permit has been issued. That I guess at this point is
enough said about the Planning and Development Boards action. I
had some reservations and I tried to find out whether there was
actually a written staff report that supported the planning
commission action and found none. Again as I say I tried to talk
to Mr. VanCort today and he seemed to be indisposed or at least he
was unavailable. As a result of the Planning Boards meeting there
was a report in the Journal which may again leave with you some
misapprehension. You may have come to the conclusion that Mr. Enders
and his family including two small children live in 325 N. Albany
Street. In fact of the matter as the public record discloses that
Mr. Enders has been divorced for something like 3 years and the
custody of his children resides in his wife and he has visiting
3
permission. The basic thrust of our appeal however, Mr. Chairman
is that the Building Commissioner in handling this matter made
several erroneous interpretations of the Zoning Ordinance. The first
one I've already alluded to the fact that the non-conforming status
of 325 and it' s non-conforming I believe in at least 4 different
aspects. There is inadequate lot size, the R-3 zone requires 3250
sq. ft. and there is actually 2244 sq. feet in the lot. Three of
the four setbacks are inadequate and there is no required off street
pakking even though off street parking is required under the zoning
ordinance for this use. It appears that sometime early in 1976,
Mr. Enders received permission after verbal discussion with Mr.
Jones and I believe Mr. VanCort to operate something called the
Family Pet and Plant Center at 325 N. Albany Street. A house that' s
been used as a single family house for something on the order of
60 years in a R-3 zone. I should point out that there are no
particular skills involved in the operation of a retail store selli g
pet food, pets such things as snakes, fish, birds, pet supplies and
conducting as I understand, according to at least the public press,
the breeding of animals . So that there is no craft, art or
particular talent involved in this, it' s the talent normally
exercised by the most common retail entrepreneur. So that it fails
the first test of a skilled profession or those occupations normally
found in home occupation categories. The operation ostensively was
approved as a customary home occupation because there are two other
pet shops in Ithaca. One of which is in a business zone I believe
a B-3 zone operating on East State Street and a second operating
at 331 S. Cayuga Street in a former B-4 zone. In the vicinity of
which is a plumbing and heating contractor, a used and new car
sales, and repair operation and a couple gas stations. Something
Ithat is completely lacking in the area of N. Albany Street. A
I
quiet residential area a fragile area, I underline an area that has
shad a great deal of new investment and new residence moving in
expending their own time and effort as well as money in trying to
reverse the deterioration and the decay that we have all witnessed
over the past 15 or 20 years. I suspect that the Ithaca Aquariums
which you have never had before you the one over on S. Cayuga Street,
has the same fatal defect that Ender' s operation has. That it is a
I
0 4
commercial use masquerading as a home occupation and is not in
fact a true home occupation as defined by your ordinance. It is
not something that is customarily found or carried on in the home,
a test that has been laid down by the appellant division of the
Supreme Court of New York . It is not something that a prudent man
exercising his normal intelligence would expect to be parachuted in
next to him nor would it be something that I believe the four of
the six members of the Board of Zoning Appeals right here who live
in a R-3 zone who would expect to have located next to them. I' d
assume that you all are prudent and reasonable men. And I ask you
to apply the same yard stick to the deliberation on this matter.
It is of deep concern as an example to Mrs. Leonard that a seven
foot snake resides within four feet of her kitchen sink. Or that
she look out her kitchen window and sees hamster food racked up
four feet in front of her face. Or that she sees and knows that
there are fish, birds and other things creepy crawlees as she said
today in a residential area. I submit to you that that doesn' t
make a great deal of sense. That this is a commercial use, it is
not a customary home occupation, it is not customarily thought of
i
as a home occupation, it is not a lawyer, it is not a physician,
it is not a dentist. The customary home occupations that I believe
have been before you for a number of times. What is defined in your
ordinance and there is a list of them and I believe you are very
familiar with thea, the kinds of occupations artist studios, and
by the way artist studios are not even allowed apparently by the
zoning ordinance to have sales outlets. It' s a studio when an
artist transgresses professional organizations and moves into
commerce he conducts that business in a commercial zone not in a
residential zone. There are some who have suggested as an example
that the phrase but not limited, to which is in your ordinance last
part of the definition of customary home occupations. Would permit
almost anything which could be located in a house, actually to be
located there. That' s gratuitous, that' s absurd wlmat it was
obviously was intended to do was to include such things as dentist
which are not listed as a customary home occupation but where you
Ido have dentist operating as home occupations, professionals
conducting their profession. It is not meant to cover every
5 i
conceivable kind of commercial zone operation. Now one of the
things that I attempted to do was to find out how Mr. Enders
classifies himself since I was raising the question of the classif-
ication. I' d like to submit for your information and for the recor ,
a copy of the Ithaca Journal March 27, 1976 where we have a large
display advertisement statim.- that you are to clip, redeem, and
save at Ithacas leading merchants. And among Ithacas "leading
merchants" is the Enders Pet Shop. It' s included with such things
as the Livery Tavern, Mark III Top of The Ladder, Van' s Shoes,
Sam Peter, Smoke Rings, Ragmann' s, Ann Marie House of Fashion and
a number of others . I've taken the trouble to check the location
of each of these and they are all located in commercially zoned
land all with the exception of Enders Pet Shop. So I haven' t
classified Mr. Enders, he has classified himself . I submit to you
that the masquerading as a customary home occupation for what is
clearly a commercial use is a travesty of the zoning ordinance whic
I believe Mrs. Leonard, and my two maiden aunts who have lived on
the 300 block of N. Albany Street for all of their lives who have
as their father and I'm rather proud of this, my grandfather was
the first democratic acting mayor in the City of Ithaca. He built
the house. So they have a great deal of affection for that area
and have watched it over the years and wish to remain there. But
at the same time they are aware of the deleterious affect that
creeping commercialism can have on what is in essence a very fragil
and delicate neighborhood. In addition to the requirement that
the home occupation be customary which I believe we have disposed
of , is that the home occupation must be clearly incidential to the
primary use which is residential and it' s clear that the conversion
of the first floor and all of the first floor plus other parts of
the building to a commercial operation violates this proposal. It
violates the restriction that the residential use of the property
be clearly predominate and that the commercial use be clearly
subordinate. I submit to you the installation of commercial
lighting, the conduct of business affairs until 9 o' clock every
evening, the installation of commercially prepared materials not
I
roduced by the labor or the talent of the residences shows
Ii
6
unequivocally that this is not a clearly subordinate use, it is a
use of a predominant part of the building for commercial purposes
and violates several sections of the Zoning Ordinance which I
detailed in the application itself. The primary purpose of a
residential district and ggain this is not me talking it is the
court of appeals in New York State. The primary purpose of a
presidential district created by a zoning ordinance is safe, healthf 1
family life. Rather than the development of commercial instincts
and pursuit of pecuniary profit. And I should pause here for just
a moment to say Mr. Chairman, that I share the kind of reluctance
you always have of accepting a hard decision like the one you have
before you, I used to be a member of a Board of Zoning Appeals for
a number of years, so that I sympathize with you for your unpaid
status and the generous amount of abuse that you can get from the
public and the petitioners. I believe it takes unreasonably
tortured logic and indefensible grammatical gymnastics to conclude
that the Family Pet and Plant Center or as it said on the sign,
Enders Pet Store, is a customary phenomenon in Ithaca as a home
occupation or elsewhere for that matter. And that it is in complete
compliance with the generally accepted norms of being a clearly
subordinate commercial use, home occupation in a residential area.
A further test of the unreasonable nature I believe of the enforcin
officers decision was his decision not to enforce the zoning
ordinance on a commercial use which is the Enders Pet Store as
regards to the off street parking requirements. Mr. Enders referre
to this in the Journal story I discussed earlier that his big
problem is the fact that there is no parking in the vicinity and I
can testify from 30 years of personal experience that in fact, he
is right. It' s probably one of the things that he is right about. I
That the parking is impossible at best and at worst indescribable.
Yet at the same time, the building commissioner did not enforce
sections 30.25 col. 4 and section 37 to require a commercial use to
provide off street parking in association with the operation of the
commercial undertaking on 325 N. Albany Street. Clearly the
ordinance requires it. The City Council has said this, as far as
I'm concerned the provisions of the ordinance are unequivocal and
7
Mr. Jones' s duty was clear. He did not see fit to discharge that
duty. I'm suggesting that you have the right to instruct him to
do so. The provisions of the ordinance gentlemen, provide that the
residence in the area and I talk about my maiden aunts, I talk about
Mrs. Leonard who has lived there for 30 years, elderly, about a well
diserving of protection. I'm asking you to put yourself in the
position as members of the Board of Zoning Appeals , of considering
, what will be the effect of your decision that would uphold Mr.
Jones' s permission, inadequate though I may believe it to be, that
this is a customary home occupation and things like it, like
precedence therefore to be located next to you in your R-3 zone. I
Unfortunately Mr. Kasprzak and one other member of the Board of
Zoning Appeals live in a R-1 zone where they have stomped out
customary home occupations by law. But the methods of operation,
the operation itself, contravene clearly the provisions of the
zoning ordinance. A measure of the unreasonableness it the fact
that one of the major causes of its installation is that it has
exasperated the parking problem in the vicinity to the extent that
even Mr. Enders admits it. I think also that there has been a
suggestion that maybe there needs to be adjustments made to the
zoning ordinance because of small lots or off street parking or
clearing up some supposed but I don' t believe existing confusion as
Ito what constitutes a home occupation or a customary home occupation.
I believe it' s your responsibility to and I believe the Chairman
has made this clear in other cases, but you have a law that you
have to uphold, the Zoning Ordinance and irrespective of your
personal beliefs as to it adequacy or inadequacy, you have the
responsibility to interpret what is before you. You do not have
the right nor the responsibility, I believe, to impose your concept
of what the zoning ordinance ought to say in arriving at your
conclusion. I'm suggesting that the ordinance which is before you,
clearly says that a home occupation must be customary, it must be i
I
incidential, and it must be something that was expectible in the 1
pattern of Ithaca, in the pattern of the R-3 zone and the pattern
�of the north central, I believe it' s the north central area of the
i
city. It was interesting to read for just a few moments this
8
afternoon some of the things that were said about the area by
the Planning and Development Board, the Mayor and his Community
Development Committee and other groups who have studied this area
in the recent past as well as to indicate or to find that the
comprehensive plan for the city clearly recognized the delicate
Il nature of the area and made specific recommendations that
commercialization or disruptive uses not be allowed in and that
those who were there would be removed by public and private action.
I'm suggesting to ycau that my aunts, Mrs. Leonard have been clearly
imposed upon by Mr. Jones' s inadequate enforcement of the zoning
ordinance and his misreading of the provisions of the ordinance
to say nothing of the clearly contained content of the ordinance
and we are suggesting to you that you can clear this defect and
return a bit of tranquillity, a bit of peace of mind to a number
� of citizens of Ithaca who have been mightily upset by this un-
fortunate experience and who are deeply concerned that the law
has not seen fit so far to protect them from what they believe are
actions which fly right directly against the major intent of the
zoning ordinance of the City of Ithaca. Mr. Jones' s erroneous
decision can be expected to result in further automobile congestion
in the streets and inappropriate use of land and buildings,
destruction of neighboring property values, deterioration of the
appearance and I haven' t mentioned but I guess I should, the
placards which are pasted on the inside doors and windows of clearly
a residential house or the rather garished sign that hangs in the
front porch. But there will be destruction of property values,
deterioration of the appearance of the neighborhood and a direct
threat to the public health, safety and general welfare. All of
these results apply directly in the facL- of the purposes for which
the Common Council and its collective wisdom decided to adopt
chapter 30 of the Municipal Code which is the City Zoning Ordinance.
Therefore, we request you to uphold the appeal that the Enders Pet
Store or the Family Pet and Garden, Pet and Plant Store be ruled no
a customary Home Occupation and instruct the Building Inspector
to exercise his responsibility and abate the violation of the
( zoning ordinance which is occuring. Thank you Mr. Chairman.
i
1
9
SMR. MARTIN: Are there questions from members of the Board?
MR. GASTEIGER: In your intrepretation, does a family reside at
this property?
MR. LEARY: Your definition of family is one or a number of related
or related people, I believe. I read so many Zoning Ordinances,
I've read 15 Zoning Ordinances . . . . . . . . .
MR. MARTIN: There is no contention that the Enders lived somewhere
else.
MR. LEARY: No sir. I was just trying to correct the impression
that was clearly intended in the Journal article that somehow or
another that Mr. Enders and his children were a resident in this
house. But they are not.
MR. MARTIN: Are there further questions?
MR. LEARY: Mr. Chairman, may I reserve the right to cross examine
any adverse witnesses?
IMR. MARTIN: Well, we have a loose procedure and we do not
( customarily have cross examination. I think that you will find that
the Board itself will involve itself quite actively in questioning
' the parties. If you have questions that you want to ask, I hope
that you will indicate.
MR. LEARY: Could I spread on the record my request, that it is in
accordance with your bylaws and I do make the request.
MR. MARTIN: Alright. i
MR. LEARY: I' d like to make that request. �(
MR. MARTIN: Let me make clear that this is a request for an
interpretation. The Zoning Ordinance in delineating the powers of
the Board of Appeals list as the first of them, the power to
interpret the ordinance on appeal by the aggrived party from a
decision by an administrative official to decide a question involving
the intent of any provision of the chapter, that is the zoning
( ordinance . Mr. Leary made a couple references to our giving
I
instructions to the zoning officer to enforce the ordinance . The
Board does not have authority over enforcement of the ordinance andl
�we don' t go around the city inquiring about compliance with
ordinance but we clearly do have power to interpret where there are
questions, and I gather that is what is being asked in this case.
10
Are there others who wish to speak on behalf of the requested
intrepretation? That is the position advanced by Mr. Leary on
behalf of the Leary' s and Ms. Leonard. Is there someone who wishes
to speak in opposition, I take Mr. Enders. Yes.
( MR. ENDERS: My name is Dan Enders, I'm present owner of Enders
Pet Shop at 325 N. Albany Street. Basically I'm intrigued that
one man could find so much to say about so little and yet say so
little about so much. I must apologize to Mr. Jones for being
stepped all over by what he said. I think that its been mis-
interpreted quite a bit, so I'm really here for one reason and hope
that I can answer the Boards questions pertaining to the small home
business in which I now have at 325 N. Albany Street.
MR. MARTIN: Mr. Enders, much of what has been said and is in the
appeal really constitutes legal arguments. Arguments about improp
interpretation of the ordinance but there are some factual question
How much of the building is occupied by the Pet business?
MR. ENDERS: Three rooms sir, completely devoted to the Pet busines�
consisting of the downstairs, three rooms from the downstairs,
three quarters .
MR. MARTIN: Is that the entire downstairs?
MR. ENDERS: No sir, there is a large kitchen downstairs which I
eat my meals and prepare meals and spend some time in.
MR. MARTIN: Alright.
iMR. GASTEIGER: How about the basement?
MR. ENDERS: The basement is a large open basement which would be
ideal for storage but because I'm such a small business man and
carry so little merchandise, I don' t need that storage and I don' t
think that it looks like it in the future that I'm going to acquire
that for that. So it consist of my own personal belongings which
are very few at this time.
MARTIN: How much traffic does your pet store bring to you
every day? I mean conceivably that' s relevant inquiry, it' s not
something on which we had testimony. How many people come in a day
ENDERS: Not enough.
MARTIN: But how many?
ENDERS: Some days I have zero customers, I had two of last wee
consisting I think it was Tuesday and Wednesday of zero business.
j� 11 11
! I do have a constant sometimes flow of youngsters from the school.
In this quiet residential area which I live, right across from the
is a large school, and a GIAC building which is not too quiet a lotl
of the time. I don' t object to it, I think it' s nice to have
people getting together and having group organizations and things.
Other than that, no, I don' t have too many customers and when
they do come in the store, they do not come in troves, or big
amounts, it' s one or two at a time, usually it' s a mother or one
of the parents or sometimes both the parent bringing in a child to
pick over maybe a first pet consitting of a house pet. All the I
ipets which I do have are home pets, inside the house.
IMR. MARTIN: Could you describe your inventory? We've been told
that you have a seven foot snake and guinea pigs?
MR. ENDERS: Yes sir, I do have guinea pigs. I had to sell the
snake on opening day, it was the first thing sold out of my store,
Ion a Saturday February 7, approximately 9:30 in the morning. Since
I
then I've had an amazing request from people who live here, and I
mean right there in that area, who have snakes, who would like to
get other kinds who are in the market for selling their own snakes
and would like to sell through my shop.
MR. MARTIN: So, you anticipate dealing in snakes and what else?
MR. ENDERS: I guess I don' t anticipate so much dealing with snakes
because I don' t handle them. I'm not too fond of them. If a
person has a snake, I would handle it this way, especially since
I've heard of the problems. If a person really wants to sell a
snake, I have a bulletin board in the front, where you first enter
and they could put that on. I could see that it would not be
advisable for me to carry a lot of snakes or creepy crawling critters
because of my neighbors and I don' t want to offend them. That
wasn' t the idea of having my shop.
KASPRZAK: Do you keep any pets in the basement?
ENDERS: I have a pair of birds, one pair, which belong to me
and these are show birds. It' s very small- they are not large, the
are not for the business or devoted to the business.
GASTEIGER: I still don' t have a good picture of the inventory.
Could you just go on with other species and roughly. . . . . . . . . . . . . . . .
i
12
MR. ENDERS: I' ll tell you exactly what I carry because it' s
really not that much. The basic thing that I carry and offer in
the shop is tropical fish consisting of 10 gallon aquariums. I
carry the largest selection here in the Ithaca area, at the lowest
prices. By doing so, having this my home shop. It consists
of 40 tanks. Forty individual tanks. In each tank there is
usually one variety, because I don' t mix them together. Also I
have bunnies which consist of baby bunnies because no one is going
to walk into the store and buy a large rabbit. I don' t care how
cute it looks or what color it is. I have guinea pigs, when I can
keep them in stock, small hamsters, gerbils and occasionally white
mice, which is a good thing to carry because there are so many
people in the area that come in to buy what they call snake food.
If I don' t carry this I just loose walk in and walk out business.
I've carried parakeets, singing cannaries and finches. And a pair
of lovebirds, right now I have them on display which I don' t always
carry in stock because of the overhead and the expense. I can' t
afford it simply as that.
MR. GASTEIGER: Could we go back to the parking , what happens on a
Saturday in terms of parking?
MR. ENDERS: Well it' s good, Saturday is a good time because the
jschool is not open and when the school is open the parking in front
of the house which is two hour parking, is not being enforced. The
cars are parked there all day. They come in, they go to work in
the morning, I watch them go into the school and watch them come
out at night. If the parking was enforced, the two hour restriction,
there wouldn' t be a problem at all. But on Saturday, the people
that are accustomed to coming to my shop are aware that they have
a big parking lot right across from the GIAC, which they are using
for their parking. This has been very helpful and then again I
don' t have an overflex of people. The people who live next door,
my neighbors for example the Leonard' s, they don' t own a car they
take a taxi coming and going.
MR. GASTEIGER: But you haven' t given any numbers say for a
Saturday, or what might be a typical number of customers by car?
MR. ENDERS: The total a day?
MR. GASTEIGER: Yes.
IE
13
MR. ENDERS: A good day would be 30 customers on a Saturday. I'm
open Saturday from 9 till 9. It' s not like they all come in
between 2 or 3 hours of business.
MRS. WOOD: Mr. Enders, do you agree with Mr. Leary that it wou-U
be impossible to have off street parking at this location?
(MR. ENDERS: I' ll be honest with you, I'm so informed, I don' t
have the knowledge of even whatoff street parking is. I've never
1
lived in the city, I come from the country.
'MRS. WOOD: Parking on the lot on which the house is located.
MR. ENDERS: I don't think that there is any room for any house in
that area. They are cramped so tight together to park anything.
IMRS. WOOD: Mr. Leary said that areas of the house other than the
first floor were used for the Pet Shop, is that false?
MR. ENDERS: Yes. I don' t understand where Mr. Leary got alot of
his grievance because I do not know the gentleman, I've never met
, the gentleman, I don' t recall him ever being in my business or home.
DR. GREENBERG: Mr. Enders did you lease this property?
MR. ENDERS: I rented this place from Henry Richardson.
DR. GREENBERG: Did you sign a lease?
MR. ENDERS: Yes sir, for a dear.
DR. GREENBERG: The lease is for a year?
MR. ENDERS: The lease did not go through until I went to the Board,
until I talked to Mr. Jones and Mr. VanCort and I actually saw
and talked with Mayor Conley about this before we even signed the
lease or he wanted me to go into this lease to see if we had
permission to have the shop.
DR. GREENBERG: Primarily it is not a residence?
MR. ENDERS: Oh yea, I need a place to live and I do live in more
of the house than the business. I think that there is a mistake
on the fact that the business quality of it. People don' t come in
every day and need to buy pets or fish. But when -they do things
have to be kept up and healthy so that when a person does buy it
they don' t take it home and it dies on them. That is what consists
of most of my time and the home when I'm not in scizool, is taking
care of the right for the animals and the fish.
MR. GASTEIGER: Are you maintaining then that special skills are
irequired?l
1
i
14
MR. ENDERS: Yes, the only person who would ever say that, I can' t
remember the term, I'm sorry but that it takes no skills but some-
one ,rho has never raised the proper animal properly or had fish
and taken care of them properly.
MR. GASTEIGER: Do you breed animals there?
MR. ENDERS: No, I do not breed animals there.
MRS . WOOD: Mr. Enders , would you care to comment upon the one
provision of a home .occupation, is as Mr. Leary repeated, a conditi n
�of home occupation that it be clearly incidential and accessory or
secondary to the use of the dwelling unit for residential purposes?
(�MR. ENDERS : To simplify that you are saying is again
MRS . WOOD: Is the pet shop clearly incidential to your residence?
MR. ENDERS: Yes, it really is . First of all I didn't really know
ifpeople wouldlike the idea or even come there to purchase fish or
small pets and. . . . . . . . . .
MRS . WOODs So your arguement is that this might have failed and
therefore it is clearly incidential?
MR. ENDERSs Well, yea I 'm not quite surg could you rephrase that
again?
MR. MARTIN: When your business becomes so successful that you are
drawing 50 people a day and that it has spread up to the second
floor, at some point it's no longer incidential to the use as a
residence.
MR. ENDERS: Mr. Martin, I 'll honestly say that it will not spread
any further than what it is , unless I go into a commercial area
because you couldn't handle it properly and again it 's not within
the ordinance. If my business was that successful. . . . . . . . . . . . . . .
MR.MA RTIN: Ok, so your arguement is that because of the small
number of people who come, at the moment your business is incident al.
MR. ENDERS: Right, and the people who do come and normally if the
come on time and if it's good for me they come back, and bac$, and
back and it's usually word to mouth, they tell someone and they cone
in. So, I 'm beginning to know quite a few of my customers quite
well. I
MR. KASPRZAKs Mr. Enders, we are here to decide whether it is a
home occupation or not. You very comfortably keep referring to it
as a business, if you do call it a business, I 'm afraid that I 'll
15
have to go against you on these basis .
R. ENDERS : To me it is a big business because I 've never had a
business . I don't have the definitions of business and home. . . . .
R. KASPRZAKs I know, I 'm sympathetic to your predicament in that
situation as you describe it but we still have to make a decision
and it's very difficult for me to make a decision whether it's a
home occupation or not if you who is before us as a petitioner in a
sense keep referring to this business .
MR. ENDES s I see.
R. KASPRZAKs I 'm not trying to put words into your mouth, I 've
lbeen listening for the last ten minutes or so and you constantly do
that.
MR. ENDERS : I see, well, I understand what you're saying. It's a
small home business or an occupation. I don't know the terminolgy
is . I don't have the big words or the learning to that. But it's
not bery big.
RS . WOOD: Greg, a real estate broker is an acceptable and that's
a business.
MR. MARTIN: You alluded to discussion with the building commission )r
and perhaps other city officials, our role in interpretating the
ordinance is to hear in effect of appeals from intrepretations or
determinations or decisions of the building commissioner. Could
you elaborate on the extent to which you got in advance intrepret-
ation or laid the problem before the building commissioner at that
point before you committed yourself to it?
R. ENDERS : Well, it was very simple , I thought about having a pet
shop or opening a small business of that nature, because I 've been
to a couple of home businesses concerning tropical fish and small
pets. Ithaca doesn't have this and the things that are in Ithaca
now consist of two very highly priced shops. Which I can't afford
to buy pets for my children myself, so I thought if I could open
something and try to get alot of my supplies from local people who
live in Ithaca, then I 'd be able to have lower prices. By doing th s
I started getting this together and a friend of mine came in who is
a teacher over in the school right across from where I 'm living and
told me that you need to go and get permission from the zoning boarl.
I
16
Khen I went there I talked to Mr. Jones and he explained pretty
much and we went over the ordinance and he did not say that you can
have a pet shop and didn't say you can't have a pet shop. Then we
went in to talk with Mr. Van@ort get his opinion and then a few
days later I went to talk with Mayor Conley because I was quite
confused. The Mayor told me that for this type of business , I
didn't need to go in the first place to the zoning board because in
a R-3 zone you can have a small home occupation. So there again I
was confused on what's what. I really don't know, I just went on
the basis that the people in there in the positions do know and I
listened and I tried to follow it very carefully. Obviously, I
di(tri't do so well. I 'm here on the basis because Mr. V anCort called
me and said that he was sick at home and that is why he wasn't able
to be reached. I think that he has a little touch of what I have
here. He said that if I could come in and maybe answer some of
the questions .
MR. GASTEIGER: Suppose we assumed that you have done some things
that may not be corwentional and part of a home occupation then you
are forced to contract. I 'm talking about maybe the signs , someone
claims that it glares , the advertisement which sound very commercial
and maybe there is some other aspects of this . I suppose that I
should define them a little bit better but I 'm just curious to kno
wht this would do to you, if you wanted to call this a home
occupation. How essential are these commercial aspects to your
operation to your success?
MR. ENDERSs Nobody knows where you are, they certainly are not
going to come there. I mean people have to locate me now and if i
wasn't for that sign which is a 2 by 221 under the zoning ordinance
they wouldnot find me at all, I 'm sure. So I think that it is
pretty important to me to have the sign and at the size that it is
and to do some type of advertising. People who sell dogs out of
their house put in the Ithaca Journal, under Pet Shops or Pet
Supplies or pet something that is an advertisement too and I can't
see where that is conflicting at all sir.
MR. MARTINS Are there further questions from members of the Board
DR. GREENBERG: You mentioned the kitchen which you use personally
I� but wouldn't it be impossible to house all these animals the
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I
hamsters , gerbils or the rabbits without the kitchen facility. The
water, the ability to prepare food for them. The ability to clean
out their trays and their cages?
MR. ENDERS : Most the cleaning and the feeding is all done in the
shop, I do not move them out of the shop to do this, I have them
in theaquariums for the idea of cleanliness for that. There is no
reason to move anything out of the shop to clean it, including my
fish tanks. I do not pick them up physically or in any other way
I
and move them out of the shop.
MR. MARTIN: The question is whether the kitchen is not essential
i
to your business operation as it is also a use essential to your
living?
MR. ENDERS : Oh, I do use water. Water does come from the kitchen.
DR. GREENBERG: I have two cats and I know the question of their,
they are very hygienic but they do need their litter changed. But
they need a place where their litter is cleaned. They need a tray
in which to feed. . . . . . . . .
MR. ENDERS : I do not carry cats , and that is one of the major
reasons .
IDR. GREENBERG: I 'm just referring to mammals . . . . . . . . . . . .
MR. ENDERS: Nor dogs. The animals I do carry come in either, amall
containers such as an aquarium which is easily taken care of right
there where they are located. I realize myself, I do not have the
facilities for this type of animal. It goes out and moves around
like that. These are animals that people have themselves, where
children as smell pets in the home. They don't take up a big space
or normally not kept in the kitchen. My home, where I 've got my
pets, is cleaner than alot of peoples homes and I can say that
honestly and you can come seven days a week and check it out anyone
is welcome to come there. I 'm open till 9 o'clock.
R. GREENBERG: That isn't exactly what I 'm saying sir, I 'm saying
that you need the place to provide the equipment and the wherewithal
or cleanliness and it doesn't come from within the frame work of
he three bedrooms or the three rooms that you are using for the
ownstai.rs area, that's all that I 'm saying, you can't use the thre
yeas for the pets but obviously you need a place where cleaning
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I�
supplies and all the cleansing that has to be done to keep this
immaculate and spotless and hygienic, you need a place for that.
MR. ENDERS: I use the same facilities to clean my house. I use a
mop and odorless soap. I use it in the other rooms , it's nothing
exceptional it's nothing that every other home doesn't have. . . . . . .
I 'm sure.
` MR. MARTIN: Mr. Leary, you had a question too?
MR. LEARY: No, I think that Mr. Enders indicated that he is using
fall of the first floor which is half of the habitable area of the
house, for the operation pet shop which is clearly a predominant
use and the front porch and the outside windows.
MR. MARTIN: Are there further questions from members of the Board?
MR. VANMARTER: Sir, Gan you describe to me anything less that goes
Ion in your house that I might go into the store and see. I see
merchandise, I see it being replaced, I see it being cared for, I
see it being sold and carried away and I see it being restocked.
Is there anything less than that that goes on in your operation?
MR. ENDERS: I 'm sorry, I 'm not quite sure.
MR. VANMARTER: I go into a normal retail store, I see an ad in the
paper, I see a sign in the window, I walk in and they have merchand se.
Being cared for, being packaged, being cleaned, being sold, being
carried away, it's being replaced. Is there anything less than that
operation that goes on in your home?
MR. ENDERS: I don't understand why I said what Mr. Leary put in my
mouth, these words that he uses. Like where I said I use the whole
downstairs for my shop?
R. MARTINS Well it's an interpretation that he is putting on the
facts. The Board has been asking you about what use you make of
the kitchen and other parts of the downstairs. If there are no
further questions then we will proceed to anyone wlse who wishes to
speak on Mr. Enders behalf that is to say in opposition to the
intrepretation which has been requested.
R. DON ENDERS : People of the Board, my name is Don Enders . I'm
the father of Dannie and I 'm not going to say very much because I 'm
of familiar with all of these proceedings either as the other
gentleman who spoke first seems to be well equiped with what to say
19
and not to say. But I know how hard Dan has worked to prepare all
of this and it seems like this gentleman just came up here to be-
little the Board of what they are trying to do, He seems to know
exactly what he is saying, which is fine but, I just wonder how
partial some of these Board members are because I 've noticed a
gentleman and one of the other fellows jut keep looking at each
other and grinning on different remarks that my son has made or
tried to make and he isn't an accomplished speaker any more than
II am and I just wonder, you know he used to be on this Board maybe
not with all you folks but he admitted himself that he used to be
on the Board here and I just hope that Dan is going to get a fair
shake. That's all that I 'd like to say because he has put alot of
money, a lot of time into this and if he has to move it, I don't
want anything illegal done which you people probably all will do
right but as Dan has spoke to that his place is just as clean as a
blot of places that I have been in in this town myself. If there is
any doubt like the gentleman in question that's doing all the talking,
he's probably never been in the shop if he wanted to go in there an
then came out and spoke about it, he's only going on heresay if
he has never been in there and I have been in there, so that's all
that I wish to say.
MR. MARTIN: Mr. Enders , you can be assured that the Board will be
impartial in the case.
MR. DON ENDERS: Well, I hope I made it clear like that.
MR. MARTIN: And I believe Mr. Leary was referring to some other
Board of Zoning Appeals .
R. LEARY: Anarbor, Michigan, if the Board would like to be clear
on that.
R. DON ENDERS: The way I took it or intepreted it was that he was
on this Board helms at one time when he was in Ithaca.
R. MARTIN: Some other city, some other time.
R. DON ENDERS : Well, I 'm awful sorry then I don't mean no dis-
respect because he is a accomplished speaker, he seemed to me.
You know he knows what he's talking about and he seems to know the
rdinances and things but he did seem to belittle some of what is
going on here which I don't feel is right and that's the way I
'nterpretated it.
T
• I 20
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s
MR. MARTIN: Thank you very much.
MR. DON ENDERS : Thank you.
MR. MARTIN: Is there anyone else who wishes to be heard on this
case? If not that concludes the public hearing on case 1112. The
Board will now go into executive session and reconvene with their
findings.
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I
BOARD OF ZONING APPEALS , CITY OF ITHACA, EXECUTIVE SESSION
APRIL 5 , 1976
i
APPEAL # 1112
Mr. Martin moved that the Board adopt the following interpretation
of home occupation as it applies to the testimony about the propert
at 325 North Albany Street.
Subsection C of the definition of home occupation requires that the
occupation or profession be "clearly incidential and assessory or
(secondary to the use of the dwelling unit or residential purposes, "
(according to the testimony about the current use of the house at
325 N. Albany a retail operation occupying a major portion of the
! first floor, advertising to the general public, and open long hours
is being carried on. Such use is not in our judgement "clearly
incidential and assessory or secondary. "
Mr. Kasprzak seconded the motion.
VOTE: Yes - 6 No - 0
The Board upheld thisdecision.
I
l
if
T 7 T r g m T n
T , ( T4P T,9TTI\T qr,TTTTJ
DO r-"PPTTVV tbpt T took the minutes of tbp
i.
-POAPTI� OP 70T\TTT\Tr- JPP7Aj,' ("TTVOF TTHACA in the matters of Appeplsi
No. 11021 11-10, 1.111, and. 17-1? on A-pril 5, 1976, at City 'Fall,
_ty of TthpC.q , Nel,� York that T have transcribed. same, and the
f ore P-o in s- is P true copy of the transcript of the minutes of the 1
meeting and the 7x9cutive Session ofthe 'bard of 7oning Anneals ,
(7ity of Tthpcp , on the above date, and_ the whole thereof to the
); best of my ability.
(Thristinp Smith
Pecording Secretary
qi,,rorn to before me this
71
D
day 0 f
1976.
P
Notary Public
01 N,'W York
Qu 31i;lcd in Tcm;k.neC7
Mach 3059