Loading...
HomeMy WebLinkAboutMN-BZA-1986-09-08 BOARD OF ZONING APPEALS HALL OF JUSTICE CITY OF ITHACA NEW YORK SEPTEMBER 8, 1986 TABLE OF CONTENTS PAGE APPEAL NO. 1678(a) David and Flora Sagan 3 705 N. Aurora Street DECISION 18 APPEAL NO. 1712 C.D. & C.M. Arthur 19 317 Linn Street Deliberations 29 DECISION 40 APPEAL NO. 1713 Eric and Helen Dicke 41 106 Westfield Drive DECISION 48 APPEAL NO. 1714 Henry Highland Garnet Lodge 49 617 West Green Street Deliberations 84 DECISION 96 CERTIFICATION OF RECORDING SECRETARY 97 BOARD OF ZONING APPEALS HALL OF JUSTICE CITY OF ITHACA NEW YORK SEPTEMBER 8, 1986 CHAIRMAN TOMLAN: Good evening . I 'd like to call to order the September 8, 1986 meeting of the City of Ithaca Board of Zoning Appeals. The Board operates under the provisions of the Ithaca City Charter , the Ithaca Zoning Ordinance, the Ithaca Sign Ordinance and the Board's own Rules and Regula- . , tions. Members of the Board who are present tonight are: TRACY FARRELL HELEN JOHNSON i HERMAN SIEVERDING CHARLES WEAVER STEWART SCHWAB i MICHAEL TOMLAN, CHAIRMAN OF THE BOARD THOMAS D. HOARD, SECRETARY TO THE BOARD & BUILDING COMMISSIONER BARBARA RUANE, RECORDING SECRETARY The Board will hear each case in the order listed in the Agendum. First we will hear from the appellant and ask that he or she present the arguments for the case as succinctly as possible and then be available to answer questions from members of the Board . We will then hear from those inter- ested parties who are in support of the application, fol- lowed by those who are opposed to the application. I should note here that the Board considers " interested parties" to s PAGE 1 BZA MINUTES - 9/9/86 be persons who own property within two hundred feet of the property in question or who live or work within two hundred feet of the property. Thus the Board will not hear testi- mony from persons who do not meet the definition of " inter- ested party" . While we do not adhere to the strict rules of evidence, we do consider this a quasi-judicial proceeding and we base our decisions on the record . The record con- sists of the application materials filed with the Building Department , the correspondence relating to the cases re- ceived by the Building Department , the Planning and Develop- ment Board 's findings and recommendations, if and when there are any, and the record of tonight 's hearing . Since a record is being made of this hearing , it is essential that anyone who wants to be heard come forward and speak directly into the microphones - that is right here in front of me and we' ll push it a little bit closer to you - so that , essen- tially the record is complete and we know that , in fact , everything is being picked up . Tonight we don' t have a microphone system so - for the benefit of those of you who are coming forward to speak - we would ask that you enunci- ate perhaps for the benefit of those people in the audience who might want to carry on. Extraneous comments from the audience will not be recorded and will therefore not be considered by the Board in its deliberations on the case. We ask that everyone limit their comments to the zoning issues of the case and not comment on aspects that are beyond the jurisdiction of this Board . After everyone has PAGE 2 BZA MINUTES - 9/9/86 been heard on a given case, the hearing on that case will be closed and the Board will deliberate and reach a decision. Once the hearing is closed , no further testimony will be taken and the audience is requested to refrain from comment- ing during our deliberations. It takes four votes to approve a motion to grant or deny a variance or special permit . In the rare cases where there is a tie vote, the variance or special permit is automatically denied . Are there any questions from you out there about our procedure? (none) That being the case, Mr . Secretary. . . SECRETARY HOARD: The first case Mr . Chairman, is a reopen- ing of Appeal No . 1678 for 705 N. Aurora Street : Appeal of David and Flora Sagan for an area variance for deficient setbacks for the front , side and rear yards under Section 30.25, Columns 11 , 12, and 14 of the Zoning Ordinance to permit conversion of the existing garage at 705 North Aurora Street for a "home office" and for storage. The property is located in an R2b (Residential , one- and two-family dwelling ) Use District in which such private use of an accessory building is permitted ; however under Section 30.49 the appel- lants must first obtain an area variance for the setback deficiencies before a building permit can be issued for the proposed conversion. This appeal was heard by the Board at its March 10, 1986 meeting and a variance granted; it is being PAGE 3 BZA MINUTES - 9/9/86 reheard - or reopened - in response to a petition from neighbors which states that they did not receive proper notification. The reopening was originally scheduled for the July 7, 1986 meeting of the Board, but was held over at the appellants' request due to a lack of a full Board . A rehear- ing was scheduled for August 11 , 1986 but the appellant failed to appear ; therefore the rehear- ing is scheduled for this meeting . And as I said, this is a reopening , not a rehearing so that the parties that petitioned to be heard , may be heard . CHAIRMAN TOMLAN: Are there any of those parties that petitioned , here tonight that would like to say something? I can see we are going to move along quickly. MR. TWOMEY: This is the second time that I 've attended , ' this is the second time they haven' t shown up in a row. Can you make a decision about this case now or should I wait ' until they show up? SECRETARY HOARD: The recommendation of the City Attorney is that the Sagans have presented their case, now the Board can hear the other side from the people who had not received notification and then the Board can decide whether to overrule its previous decision, stick with its previous decision or modify it in some way . MR. TWOMEY: So shall I come forward and speak? SECRETARY HOARD: Yes. PAGE 4 BZA MINUTES - 9/9/86 MR. TWOMEY: My name is Michael Twomey, I live at 406 E. Yates Street in the house adjacent to the Sagans own proper- ty which is 701 N. Aurora Street . I 'm the person who wrote a letter to the Board dated July 2, 1986, in which I pointed out what I believe to be inconsistencies between reality and the Sagan's statements concerning their application. I think the Board members all have a copy of that letter - should I repeat statements that I made in that letter or shall we just assume that everyone knows what is in the letter? CHAIRMAN TOMLAN: I think we have the drift of it , if you want to hi-light it , that 's fine. MR. TWOMEY: Okay, the hi-lights are these. First the ' owners attended a hearing on March 10 without having noti- fied the neighbors in the Aurora Street/Yates Street neigh- borhood . However when they originally applied Mrs. Sagan signed an affidavit , a copy of which I have, which said that she would certify [sic] the neighbors. Second , I find the owner 's statements about the intended use of the property contradictory, they state that the property is to be used as a home office but they don' t explain what a home office means. At the hearing on March 10th they said that it would be a play room, or a kid 's play room or a work room. Later in the meeting Mrs. Sagan said it was for a rental or management or rather it was for the management of her properties - rather , excuse me, she did not say that , she said it was for her own personal enjoyment . But the most PAGE 5 BZA MINUTES - 9/9/86 important point here is that a former tenant of hers, Mr . Joseph Sweet, has informed me that she told him she was going to use it as a photography studio . I can add to that that she hired a youth , a junior high school student of my wife's, whom we know, and she also told this young fellow that she was going to use it as a photography studio , so I find her statements contradictory there. I also pointed out other inconsistencies, for example they said at the March 14th meeting that the building was not visible from the street, I supplied photographs that showed that it is plainly visible from the street . I also volunteered to offer other inconsistencies, if you would like to hear them. In conclusion, I felt that they offered their application in bad faith , I don' t really know what they intend to do with the property, in the meantime they have not attended meet- ings, they have not notified the neighbors - again - Mr . Hoard sent me a copy of a letter to Mrs. Sagan dated August 11th , in which she was instructed to re-notify - she didn' t do it - so in my opinion - the Sagans are holding the City in contempt and certainly their neighbors in contempt . I feel uncertain as to what they plan to do , I do not trust them, so I would ask you to rule on the basis of this information. If you would like other information or to ask questions, I would be happy to answer them. CHAIRMAN TOMLAN: Do you have any idea how many people, or have you attempted to find out how many other people didn' t PAGE 6 , BZA MINUTES - 9/9/86 receive - allegedly did not receive - any kind of notifica- tion? MR. TWOMEY: Yes I did . In July, when I originally wrote to you, I contacted neighbors along the side of North Aurora Street where their house is, and along Yates Street where my house is. I think I said in my original letter that we contacted - I forget the exact number - I think it was six and of them only one said that he had been notified . CHAIRMAN TOMLAN: Further questions from members of the Board? MR. SCHWAB: What is your recommendation that we do - given that the garage is now built? MR. TWOMEY: Well my understanding is that it is the Board of Zoning Appeals venue to make recommendation such as that . I came here to point out what I felt were inconsistencies which were the result of bad faith . If you were asking me - a I would like to speak off the record about that . CHAIRMAN TOMLAN; Well - on the record - I 'm kind of wonder- ing - on the other side of the question - I remember the hearing fairly well and the transcript is very clear - why didn' t more neighbors come forward at that time to object? MR. TWOMEY: Well we talked to other neighbors in the neighborhood and they said , yes, we think they are up to something but we are afraid to come. CHAIRMAN TOMLAN: What were they afraid of, did they say? MR. TWOMEY: Well they were afraid of Mrs. Sagan. Their feeling about her is that she is vindictive and that if they PAGE 7 BZA MINUTES - 9/9/86 were to come forward and speak against her she might do something to them. Now I 'm - obviously we have gotten into a very grey area here - we are talking about character and I 'm not sure whether "character" is within the jurisdiction of the Board . There are potentially slanderous issues here which is why I am trying to be very cautious about what I say. CHAIRMAN TOMLAN: Further questions? MR. SCHWAB: Well , debating , I suppose, we' ll debate what we possibly could do - perhaps one or two things we could do would be some sort of order for them to tear down the garage or the renovations of the garage. Would you like to see that done? MR. TWOMEY: Well I ' ll tell you quite honestly, I have no objection to the Sagan's using the garage for their own personal use as a storage space or as work space for a computer . What I object to is the shady, dishonest way in which they have gone about this. In other words, if they had gone to the neighbors and said , we'd like to do this with the garage, I 'm certain that they wouldn' t have re- ceived any opposition to it . But because of the way they've handled this, I don' t trust them so I 'm not really sure what they plan to do with the garage. MR. SCHWAB: Would the neighbors have objected to a photog- raphy studio , do you think? MR. TWOMEY: I really don' t know. I personally would have. And the reason I would have, I stated in the letter - that PAGE 8 BZA MINUTES - 9/9/86 Mrs. Sagan tends to conduct her business - already - in her garden on the side of her house on weekends - that she has had a number of businesses going in the past and seems to be going in and out of business in various ways. I felt there would be an increase in traffic and of noise. Also , their property is very close to mine as the photographs which I enclosed would show. So I felt that this would be disrup- tive - so I would have objected to a photography studio , yes. But I would not have objected to personal use, no . MR. SCHWAB: But not if it were for personal use. MR. SIEVERDING: But it is personal use that the Sagans state, I think , in the minutes of the meeting - part of which you point out in your letter - that 's the use that they intend to put to the property. MR. TWOMEY: That 's what they say but , for reasons that I also stated , I 'm not certain that that is entirely what they i intend to do with it . For example, there is a bathroom in i there - there is plumbing . Plumbing is not mentioned in their application. They had a plumber there on August 26th and August 28th , after Mr . Hoard 's letter instructing them that they did not have a variance. So they have gone forward and completed the work on the building, even though they still don' t have a variance. They didn' t tell you that they were going to put plumbing in. So I don' t know whether it has been inspected for example. That just makes me very mistrustful when people act like that behind your back . PAGE 9 BZA MINUTES - 9/9/86 SECRETARY HOARD: By a photography studio, you mean a commercial studio? MR. TWOMEY: Well presumably, since she is a commercial photographer . MR. SIEVERDING: Did the plans, Tom, that were submitted as part of her request for a building permit , include bathroom facilities? SECRETARY HOARD: Oh, yes, she had to get . . CHAIRMAN TOMLAN: Did we ever see plans on that case? I don' t think so . MR. SIEVERDING: I don' t think so either . CHAIRMAN TOMLAN: To shortcut your looking Tom, I don' t think we ever saw plans. I think we will - a general discussion but as I remember she wasn' t that well enough formulated . . . we had kind of a building outline and that was about it . SECRETARY HOARD: There is nothing that would prohibit installing a bathroom in there. CHAIRMAN TOMLAN: No it wasn' t mentioned and I think we were going under the assumption that there was not going to be a bathroom in there, as I remember . MR. SIEVERDING: Well the issue never came up . As always, in cases like this, you rely on the word of the people who are making the presentation relative to how they are going to be using the property. If, in fact , it doesn' t turn out to be that way, there are building inspections that occur but I suppose at some later date, to discover that something PAGE 10 BZA MINUTES - 9/9/86 else is going on that shouldn' t be going on there, it could be pointed out in this situation and corrected at that point . It seems to me what we are operating with now is sort of somebody says this and somebody says that and not too much in the way of actual facts - indicating that they are going to be using the property in some other fashion than what they presented to the Board . MR. TWOMEY: I imagine that would be very difficult to prove. I knew that when I wrote my letter that it would be impossible to prove - that she is not going to use the property as a home office - but I wanted to bring before the Board the contradictory statements that she had made and see what was the Board's opinion. I can' t force you into a decision but in my view she is acting in bad faith and if I were voting I would deny the variance. CHAIRMAN TOMLAN: All right , but from our point of view, if you can see it - I mean - at this point - we heard the case and nobody came forward and the vote was fairly unanimous - 5 - O, as I remember , at that point , because no one said anything about it . At this point you come forward with • information and it seems convincing but there is not really any proof - much - behind it . It seems as though you are asking us to do what , in effect , we can' t do and that is pass on a situation which hasn' t yet occurred . MR. TWOMEY: Well I also understand that if a person obtains a variance and then proceeds to use the property for some- thing else, that a cease and desist order can be issued? PAGE 11 BZA MINUTES - 9/9/86 Well , Flora Sagan has a white picket fence which has been up for some time and it 's not down yet but I understand that it is in violation. How long would it take you to get around to doing something about a garage or some other structure? SECRETARY HOARD: Well that 's not the Board of Zoning Appeals. It 's an appeals Board . . . MR. TWOMEY: That 's a separate issue and a separate Board that deals with that? SECRETARY HOARD: The Building Department does the enforce- ment and the picket fence isn' t top priority. . . MR. TWOMEY: I 'm sure that there are far weightier matters on everybody's mind . . . SECRETARY HOARD: On this garage thing, if you have evidence that there is a commercial operation going on there, then we can do something about it . But we can' t speculate. We can' t go down there and say, we understand you are thinking of doing something - planning to do it . CHAIRMAN TOMLAN: For your own information, the members of the Board were given a note from Tom, who had consulted with City Attorney Ralph Nash, and the City Attorney advises us that they do in fact have a variance presently - regardless of what may have been - we may have been operating under or whatever kind of illusions we might have thought . The Board did act and by virtue of that action, did grant the vari- ance. One of the things which is unaddressed as yet , within the Ordinance, I think we would all agree, is this sort of instance - or that is - where you are petitioning the Board PAGE 12 BZA MINUTES - 9/9/86 for additional information or to present additional informa- tion - really isn' t something that is addressed wholeheart- edly in the procedures under which we operate. That is something I would hope - you have brought out and we are going to take care of - but , what I am saying is that at this point they do hold a variance and we are going to go under that assumption as we continue our deliberations - just to be clear with you. MR. TWOMEY: In other words, the letter that I received dated August 11th to the Sagans, in which Mr . Hoard says that "you still have no variance" - that is incorrect? SECRETARY HOARD: That is incorrect. CHAIRMAN TOMLAN: That 's incorrect . Essentially, Tom was acting on his best judgement but with the City Attorney coming into it and guiding the members of the Board as well as himself, I think , regardless of how you may see that , and how we see that - that 's essentially the guiding principle we are going to operate under . MR. TWOMEY: Well as a citizen and as a resident of the neighborhood I feel somewhat disappointed that someone can file an application - say that they will notify the neigh- bors - then not do it - then go to the meeting with no chance of opposition from the neighbors - and get a variance - and then be found out - then skip meetings - and then still get the variance - I mean that 's a mockery of your policies - that suggests that you might as well just try to get as much as you can. PAGE 13 BZA MINUTES - 9/9/86 CHAIRMAN TOMLAN: I understand your point of view, I can understand your frustration, certainly but the procedure you have just described isn' t completely within our power to control in any way, shape or manner . MR. TWOMEY: I can appreciate that as well , since I serve on meetings - on committees that deal with policy and we also have situations that are not covered by policy and we have to go and deal with the policy after some kind of damage has , already been done - so I can appreciate your prospective and I 'm glad that you can also appreciate my frustration since I 've been through quite a bit and the situation is fairly tense in the neighborhood . Is there anything else you would like to ask me? CHAIRMAN TOMLAN: I would not want to ask , but merely encourage you to come forward in similar cases such as this at the time of the hearing , in the future, if it occurs again. MR. TWOMEY: Well then I ' ll start reading the legal notices every Thursday. CHAIRMAN TOMLAN: Well believe me, it may seem an arduous task but I find out - I think a lot of people find out a awful lot about this community by doing that and it may be the only - and best - tried and true way to do it . At least then you have more to hang on to, in a sense, by virtue of notification procedures than you have now. Any other questions? PAGE 14 BZA MINUTES - 9/9/86 SECRETARY HOARD: It is a difficult situation - we've had other cases where neighbors didn' t get notice and the appellants swore up and down that they mailed them - just never got to them - in fact , we've had cases where people have called later and apologized because they did get the notice but it was late. This is the first time we've ever had a situation like this since I 've been here - where it went on this long . We have had cases where people called afterwards and said " I wasn' t notified" and "what happened" and/or I was out of town - of course that 's their problem but then they came in and looked at the record and what was proposed and that was kind of the end of it or in two cases they talked to the appellant and worked out some sort of a compromise after the fact . This is the first time this has happened - the first time for the City Attorney to deal with this and there isn' t any clear case law on what happens once it goes past the thirty days after the decision by the Board it is really dead , legally - there is nothing you can do . MR. TWOMEY: Well , anyway, there seems to be some gaps there that have to be addressed because you've got a pretty shrewd cookie on your hands. CHAIRMAN TOMLAN: We are learning too . SECRETARY HOARD: We are tightening up the notification procedures. CHAIRMAN TOMLAN: Any further questions from members of the Board? Thank you. MR. TWOMEY: Thank you. PAGE 15 • BZA MINUTES - 9/9/86 CHAIRMAN TOMLAN: Is there anyone else who would like to address this issue, either pro or con? (no one) That being the case the Board - as the City Attorney has suggested - has several options. That is to take no action - to modify - or to overrule. Any thoughts? MR. SIEVERDING: My thoughts are not to take any action. I don' t think anything has been presented that subsequently changed what we considered in the first granting of the variance. CHAIRMAN TOMLAN: Further thoughts? MR. WEAVER: Sounds like a good motion to me. MS. JOHNSON: Isn' t there something - I don' t know whether this is accurate or not - what if somebody isn' t notified , isn' t that a serious issue? I mean, obviously you can' t verify it , but it looks like this has happened twice. . . SECRETARY HOARD: Well if it is discovered in time, I 'm not sure when this was discovered . . . MS. JOHNSON: But how can it be discovered if. . MS. FARRELL: Only if someone reads the legal notices. . . SECRETARY HOARD: Yes, it 's a problem because if someone was deliberately trying to get around something like this then they could not notify their neighbors and then not do anything on the property for thirty days until that period in which you could file an Article 78 proceeding had passed and they would be home free. There wouldn' t be anything the City or the neighbors could do about it . But . . . PAGE 16 BZA MINUTES - 9/9/86 MR. WEAVER: It might be a homely - not legal solution - but a couple of phone calls on cases into the neighborhood would certainly develop if a timely notification hasn' t been accomplished . Except in a few business areas it wouldn' t be difficult to contact local residents. CHAIRMAN TOMLAN: Who are you going to suggest that does that . . . . MR. SIEVERDING: By staff, to sort of randomly pick a certain number of people within two hundred feet . . . MR. WEAVER: A phone call or two within the affected area would certainly - possibly develop the suspicion that notification has not been accomplished . MR. SIEVERDING: Right now, if I recall correctly, I 've gone through this once before, that you submit a list of all property owners within two hundred feet and sign that you. . MS. FARRELL: Yes, that you've sent them. . . MR. SIEVERDING: That you've sent them a notice. SECRETARY HOARD: Yes. MS. FARRELL: It 's a lot of work . It is easy to miss someone if you have twenty-five - thirty people. MR. WEAVER: Well historically it 's easy to miss someone too , by a few feet - an honest attempt might well miss a particular property. That has happened. CHAIRMAN TOMLAN: Do I hear a motion? PAGE 17 BZA MINUTES - 9/9/86 DECISION ON APPEAL NUMBER 1678(a) 705 NORTH AURORA STREET The Board of Zoning Appeals considered the request of Michael Twomey for a rehearing of Appeal No . 1678 for an area variance to permit the conversion of the existing garage at 705 North Aurora Street for a "home office" and for storage. The decision of the Board was as follows: MR. SIEVERDING: I move that the Board not take any action with respect to Appeal Number 1678(a) . MR. WEAVER: I second the motion. FINDING OF FACT: 1 ) There was no information presented that was substantial- ly different from that which was presented at the time the variance was granted. VOTE: 5 YES; 1 NO MOTION CARRIED PAGE 18 BZA MINUTES 9/8/86 SECRETARY HOARD: The next appeal is APPEAL NO. 1712 FOR 317 LINN STREET: Appeal of C.D. & C.M. Arthur for a use variance under Section 30.25, Column 2, and an area vari- ance for deficient off-street parking , lot width, and one side yard setback , under Section 30.25, Columns 4, 7, and 12 of the Zoning Ordinance, to permit use of the single-family residence at 317 Linn Street for a single-family residence plus adult day care center for up to nine adults. The property is located in an R-2b (Residential , one- and two-family dwellings) Use District in which an adult day care center is not listed as a permitted use, although child day care centers are permitted under a special permit from the Board of Zoning Appeals. Therefore, the appellants must obtain a use variance (or a special permit ) for the pro- posed use, and an area variance for the listed deficiencies, before a Certificate of Occupancy can be issued for the proposed uses. Please come forward . CHAIRMAN TOMLAN: Good evening . Please identify yourself first . . MR. ARTHUR: I 'm Clifford D. Arthur and this is my wife Catherine M. Arthur . What we propose to do is have an adult day care center . No invalids - it will be just like a baby sitting service for people - you know - you don' t want to PAGE 19 BZA MINUTES 9/8/86 leave your parent alone during the day - say they don' t take their pills right or you don' t want them to leave something on the stove burning , or something like that . My wife has been in the business for about eighteen years now - always going into homes and doing it , what we want to do is some- thing different , now, is just try our home first and see how it works out . We have a couple letters, one from one of our neighbors, I think you have it there and Tompkins County Office for the Aging - did you get that letter? BOARD MEMBERS: Yes. MR. ARTHUR: The appeal pretty well says what we are going to do . It 's nothing - no long term care service or anything like that . MR. SCHWAB: You are going to have up to nine. . . MR. ARTHUR: I don' t know why they put nine in the paper . You see what they did was compare us to a child day care and they went by the square footage for the property . Now when they put it in the paper - why they put nine, I don' t know. When I first talked to somebody, they said up to seven because they were comparing us to child care. Now when they put it in the paper , I don' t know why they put nine, I have no idea. MR. SCHWAB: How many would you like? What is your prefer- ence? MR. ARTHUR: Seven to nine is plenty. We talked to - I know you have the records from the Planning Board - and we've talked to Albany Social Services, and the Ithaca Social PAGE 20 BZA MINUTES 9/8/86 Services, Ithaca Health Department and we do not have to have a license unless we have twenty or more - this is what they said . Then you get into a nursing home type of deal . CHAIRMAN TOMLAN: But it was your original intent to be satisfied with seven clients and you would do so tonight? MR. ARTHUR: Yes. Yes. I don' t know why they put nine in the paper , I have no idea. MRS. ARTHUR: It could have been a mistake. MR. ARTHUR: It could have been a mistake, yes, but seven will be plenty for what our use is. We are hoping - if it goes over - we are going to build a place and get another place a little bit bigger - but right now we just want to see how it is going to go over because we don' t really know. MR. SIEVERDING: Are there any kind of State requirements for a facility of this type and this size? MR. ARTHUR: No . MRS. ARTHUR: No . None at all . MR. ARTHUR: No , we've called everybody and they said there is no requirements unless you have twenty or more - then you are classified as a nursing home type of deal . Up until that point they don' t have to come in and inspect . . . MRS. ARTHUR: When we called Albany, they said that they had not come across anything like this. . . they have nothing on record they said - probably in about three to five years, now that it has come to their attention, that they will probably come across something and they would get back to US. But right now there is nothing . PAGE 21 B2A MINUTES 9/8/86 MR. ARTHUR: As I said , my wife has been in now for about eighteen years now, going into private homes and doing this, so she is well qualified to do it . MRS. ARTHUR: The reason why I decided to do this is because I come across so many people saying , "oh , I wish we could take them somewhere because they don' t dare to leave them alone at home" . You know, if you want to go to work part time, they really can' t afford to have someone come in because it is more hourly that way - like if they wanted to go on a weekend vacation or something - they just can' t go because - most people just don' t want to go for a couple of days - I 've heard that for the last eighteen years which is what gave me the idea of trying to put it in my home. CHAIRMAN TOMLAN: I can appreciate that and it 's fine, I 'm just - if I may - want to ask a question, maybe something just outside the limits of your expertise after eighteen years, is there any - Herman asked about State regulations vis-a-vis - this sort of arrangement even to the degree like a baby sitting service, are there any regulations for that which in any way we should know about? MR. ARTHUR: No , we aren' t going to take any invalids - where they have to have special care or handling or anything like that , it is going to be somebody that is able to move around , able to feed themselves. . . MRS. ARTHUR: They just can' t be trusted to be home alone. MR. ARTHUR: You know, they just can' t be trusted to take their pills or trusted to put something on the stove and PAGE 22 BZA MINUTES 9/8/86 they may go and watch television and forget about the pan or something like that . That 's the idea. CHAIRMAN TOMLAN: So speaking more specifically about that , and having many of my relatives are alongside doing the same thing that you are essentially doing , so I appreciate this, there is no intention to increase the cooking facilities or the number of bedrooms or any of that? MRS. ARTHUR: No . MR. ARTHUR: No . CHAIRMAN TOMLAN: Okay . MR. SIEVERDING: There wouldn' t then be - there is no kind of overnight service. . : MR. ARTHUR: We will say overnight if they want to go for one night or something like that - you know - like somebody has to go out of town, in a case where they have to go out of town - but it is not going to be a prolonged stay. No weeks, or something like that , we are not going to get into that . When somebody calls up and says, well I 've got to go out of town. . . MRS. ARTHUR: Emergency case or something like that . MR. ARTHUR: Overnight or something like that . . . MRS. ARTHUR: We do have really four bedrooms. MR. ARTHUR: We have two extra bedrooms - we have two plus another bedroom we could make over but I mean it is not going to be a prolonged stay, we are going to specify this when we - if we get this - and we go to advertising this - PAGE 23 BZA MINUTES 9/8/86 one thing we are going to say is that it isn' t going to be a prolonged stay, it is just something to help people out . . . MRS. ARTHUR: It is a short term day care. . . MR. ARTHUR: Short term, yes. MR. SIEVERDING: So that your clients would drive up in the morning , drop these people off and . . . MR. ARTHUR: Right - it is just going to be a drop off/pick up situation like I put on the thing there. . . I mean, so there should be no influx of traffic or parking or anything, because it is just going to be her and I and it is just going to be our parking , so it doesn' t make any difference. MS. JOHNSON: But it may be more than seven different people, you may have seven at a time but you may have - if it is short term. . . MR. ARTHUR: Yes. It may be at night or we may have five during the day and maybe two or three at night or something like that but not at one time. And , of course, it may not even go that high , you never know. It is just something we are trying so it is something that may not even get off the floor , I don' t know. MR. WEAVER: In your notification did you make a notifica- tion that was heading toward a use variance or did you comply with the special permit . . MR. ARTHUR: It is just for a special permit . MR. WEAVER: In other words you notified neighbors and you got . . . . PAGE 24 BZA MINUTES 9/8/86 MR. ARTHUR: Oh, yes, in fact I got the list right here of everybody I sent notice to . MR. WEAVER: Did you get responses from. . . MR. ARTHUR: I got one from the people across the street . You should have a copy of that . Right on the corner on Yates Street , 412 Yates Street . MR. WEAVER: I saw that . MR. ARTHUR: But I heard a couple of people around the area comment on it - they thought it was a good idea, I mean, they didn' t write it , but they said that they thought it was a good idea. Of course, nobody has come up and said it wasn' t so . . . CHAIRMAN TOMLAN: Could we address the question of "probably deficient" under item 4 - off-street parking? Probably deficient , is deficient , deficient on every other day - what do we mean by probably deficient? MR. WEAVER: What is it? If you don' t know what it is, how do you know what the off-street parking requirements are? CHAIRMAN TOMLAN: Well let 's see if we can' t . . . SECRETARY HOARD: Well if you count the number of adults there, it would be deficient . But it depends on how this Board looks at this - it isn' t anywhere in the Ordinance - something like this. MR. SCHWAB: What would be the requirements for a day care with seven children? SECRETARY HOARD: For parking? MR. SCHWAB: Yes, for parking . PAGE 25 BZA MINUTES 9/8/86 MR. SIEVERDING: Is that the "one to ten" that you have on there Tom? CHAIRMAN TOMLAN: You understand that I am just trying to get this clear . . . MR. ARTHUR: Right , right . SECRETARY HOARD: Day care requires one for two employees plus one for ten pupils. MR. ARTHUR: We aren' t going to have any employees so it is just going to be her and our car , the same as it normally is. SECRETARY HOARD: Group care - if you call it Group Care then its one for two residents. CHAIRMAN TOMLAN: But these aren' t residents. MR. SIEVERDING: Group care in a zoning - I mean you are living there twenty-four hours a day. . . SECRETARY HOARD: Yes. CHAIRMAN TOMLAN: So it seems to fall under the one to ten, not . . . MR. SIEVERDING: Well I 'm not sure. . . CHAIRMAN TOMLAN; Well , maybe. . . MR. SIEVERDING: Yes, it is really another whole situation, than day care. I mean, day care there are certain guide- lines you can go by - there are, in fact - if you want to become a State licensed day care provider , there are, in fact , requirements that you have to meet relative to ratio of day care providers to children, as well as physical kinds of things that need to be met within the property itself, PAGE 26 ' BZA MINUTES 9/8/86 You know, receptacles and play areas and bathroom facilities and all that kind of stuff. Basically under the notion that kids can' t speak for themselves so someone has to sort of. . . MR. ARTHUR: Yes, we brought this up at the Planning Board when we talked with them about that - like she said , kids they can' t really say - where adults, they can tell you - they are there and they can tell you - where a kid , two or three years old, he can' t tell you what wrong and what is not wrong or this or that. MS~ JOHNSON: Are you both planning to be involved with this? MR. ARTHUR: Mainly her . I will be there but I mean it is going to be mainly her business. MR~ SIEVERDING: What about the condition of the house itself? Are there any building code or housing code viola- tions? MR. ARTHUR: I got a letter . . . the only thing is - the house was burnt in December 1979 and it had to be all ' rebuilt . Of course, I couldn' t lower the ceilings or I mean ' up the ceilings or lower the floor so the ceiling heights don' t quite meet zone - don' t meet the code but William Luce, Jr . was down Wednesday - I got this letter Saturday - and the ceiling heights of the first floor - living room measure 7`2^' , dining room 7~3" and the upstairs is 715" . But like he said, I can file for an appeal , I mean a veri- ance. . . MRS~ ARTHUR: Didn' t you get a letter like this? ' PAGE 27 BZA MINUTES 9/8/86 CHAIRMAN TOMLAN: That 's the Housing Code not the Zoning . MRS. ARTHUR: You didn' t get it? MR. ARTHUR: No . Like he said it 's a - the house is there, I mean there is nothing I can do about it - I can' t - I mean even when we rebuilt it I couldn' t up the ceilings or go down with the floors - there was no way. . . CHAIRMAN TOMLAN: Sure. Fifty percent of the houses are like that so don' t worry about it . MR. ARTHUR: An inspector was there all the time when we built the new house and everything - the inspector was there all the time and he okay'd it so . . . MRS. ARTHUR: Would you like to see the letter? CHAIRMAN TOMLAN: No that 's all right , thanks. Further questions from members of the Board? Thank you both . Is there anyone else who would like to speak in favor of granting this special permit? (no one) Is there anyone who would like to speak in opposition? (no one) That being the case, it is ours. PAGE 28 HZA MINUTES 9/8/86 DELIBERATIONS ON APPEAL NUMBER 1712 FOR 317 LINN STREET MR. SCHWAB: If you run a day care, do you need a special permit? SECRETARY HOARD: Yes. MR. SIEVERDING: And when you look at the zoning there is actually a whole set of requirements that need to be satis- fied in order to get a special permit to operate a day care facility. The difficulty with this case is that you don' t have any kinds of - any guidelines to go by. I mean, there is absolutely nothing in the Zoning Ordinance that addresses what the parking requirement ought to be, what the condition of the property must be, what types of material really has to be presented so we can get a full understanding of what 's being done in what kind of space and what kind of special impact it can have. MS. FARRELL: I realize this is the first time this sort of case has come up , but that is not to say it would be the only time it will come up and I feel rather uncomfortable just okaying it , or whatever , before some of those decisions have been made about what should be the parking requirements for this sort of facility or those kinds of things. I don' t know, I would be more comfortable if it were some place in the Zoning regulations. MR. WEAVER: Well to agree with you on one item - we sure don' t know what it is. But if we said that in our judgment it was comparable to day care, or a nursery school , the Zoning Ordinance in those cases calls for a Special Permit PAGE 29 BZA MINUTES 9/8/86 and then, depending upon the type of institution that requires a Special Permit there are additional burdens put on the applicant . Certainly this applicant has no showing of hardship so that I can' t imagine our granting a use variance on the basis of that - so you are over - I think - I hope - you are automatically into the merky area of Special Permits and reading Special Permits - there are all kinds of limitations and conditions put on different kinds of operations that require - the more you read there the less sure I am of making my independent judgment of what the Ordinance ought to show, if it ever does show it . Attempt- ing to read the Planning and Development Board on this subject , there was certainly no consensus among the staff and within the Board and the suggestion that it would take several years before rules could be established didn' t seem to be - it may be locally true but I can' t imagine that that 's a reasonable conclusion. I can' t imagine our doing this other than as a Special Permit , as I said before, and it seems to me that either out of that Board or out of the Common Council , we ought to get some direction on what standards for a Special Permit ought to apply . I can' t jump into the fact that an adult care home is the same as a nursery home and therefore if you meet those requirements you're in free. The other thing is, if they are after a special permit , their application hasn' t met the require- ments for a Special Permit either . So the application is faulty - just on its face. That doesn' t give a resolution PAGE 30 BZA MINUTES 9/8/86 for the Arthurs, however , and for the community for that matter , and it just seems to me that we are in a position of not resolving it but to appeal rather directly to Common Council , which then can refer it to Planning and Development Board or anyone they would like to for some kind of guid- ance. That 's what all the rest of the Ordinance is and I 'm not anxious to be a legislator . MR. SIEVERDING: Nor am I . Are you suggesting , though , that tonight we include in whatever message the Common Council - the types of things that we would like to see considered as part of that or . . . MR. WEAVER: Narrowly. This particular question and also to be able to tell the applicant that in order to apply for a Special Permit there are certain requirements that have to be met so that we can - I would not like to prejudice another application, I don' t think another application would and should be considered the same application, quite the contrary . CHAIRMAN TOMLAN: Well I was wondering if it wouldn' t be better just to continue this, but I was wondering whether - then again, on the other side, to argue with myself, that a month would be sufficient? MR. WEAVER: Well if thirty minutes here is adequate for us, it just seems to me that thirty days wouldn' t be unreason- able. Otherwise we are going to make it on a basis of this evening 's meeting and to give it to a superior Board . . . CHAIRMAN TOMLAN: Superior? PAGE 31 BZA MINUTES 9/8/86 MR. WEAVER: Yes, they are elected . CHAIRMAN TOMLAN: Oh , I see. MR. WEAVER: With thirty days to work on it , it just seems to me to be quite reasonable and if it isn' t I 'm sure we' ll hear from some one. . . They are used to having some rather - very important decisions to make over a weekend, recently, so I don' t see anything wrong with our assuming that they can act within thirty days. MR. SIEVERDING: Within thirty days to adopt a Special Permit procedure for Adult Day Care. . . MR. WEAVER: Just for this. CHAIRMAN TOMLAN: Just refine . . (unintelligible) MR. WEAVER: It might take more than that to have an Ordi- nance that would be in effect but to get a decision on it . . . SECRETARY HOARD: There is another angle to this. Earlier you said that I was "adrift" but I seem to be "at sea" on this to take it . . . And that is that the Zoning Ordinance if something isn' t covered , one interpretation in case law is that if an item isn' t covered by your Zoning Ordinance then you can' t regulate it. So there may be a matter of a legal question - a matter of law - for the City Attorney to get back to us. That is another avenue to follow. MR. WEAVER: Under that reasoning , if the appellant were to proceed , the risk would be that he might be told to stop but then it would be too late for the City to regulate. MS. JOHNSON: Well if that were true then they would be able to operate until we had Zoning information. PAGE 32 BZA MINUTES 9/8/86 MR. SIEVERDING: You wouldn' t operate without the. . . MR. WEAVER: No , it seems to me it would be grandfathered . SECRETARY HOARD: It is not regulated and it started before the regulations were developed and its grandfathered . You can' t make the Zoning Ordinance jump back . MS. JOHNSON: Right but either way they could go ahead . MR. WEAVER: Not on our say so . CHAIRMAN TOMLAN: Are we developing a consensus here that perhaps we could see if the Arthurs understand what our course of action is? MR. WEAVER: Well if we ever act . CHAIRMAN TOMLAN: That 's true. I 'm still waiting for a motion. SECRETARY HOARD: Refer it to both the City Attorney and the Council? CHAIRMAN TOMLAN: Yes for action within the next thirty days. SECRETARY HOARD: I don' t see how the Council could act in thirty days. CHAIRMAN TOMLAN: It 's possible. Well they should be able to get a committee meeting without too much difficulty - it ' s a question of whether , in fact , they can. . . MR. SIEVERDING: Out of that committee, are you going to get any further along that we are right now? Because by your logic if there isn' t anything in the Zoning Code right now that addresses day care and therefore it is a question as to whether or not - whatever we decide - wouldn' t have any PAGE 33 BZA MINUTES 9/8/86 standing until there is some provision within the zoning for adult day care. . . CHAIRMAN TOMLAN: But I guess my . . . MR. SIEVERDING: . . . it would take more than thirty days to get something substantial developed upon which we can rely in deciding this case. CHAIRMAN TOMLAN: Because technically speaking it 's for study by both Human Services and Charter and Ordinance, which means again, technically, it should go to one of those committees - come out of that committee - be referred from Council back to a committee and then back again. So we are talking about sixty - at least - if not ninety days. MR. WEAVER: Well there are printing costs, so it ought to go to . . . . MR. SIEVERDING: City Controller . CHAIRMAN TOMLAN: Well we can see this dragging on - is my only . . . MR. SIEVERDING: I 'm all for putting in some kind of time I guess, message. MS. FARRELL: How about sixty days? MR. WEAVER: Well the only polite thing we can ask for - to include the fact that we have an applicant who is - a timely resolution would be required to meet the needs of our applicant . I know we care and . . . CHAIRMAN TOMLAN: That 's the end of the motion, I think he is trying to make. MR. WEAVER: Well I 'm usually not organized . PAGE 34 BZA MINUTES 9/8/86 CHAIRMAN TOMLAN: That 's okay, we' ll take it any way you put it . We' ll scramble it . MR. WEAVER: Well under our procedure we can ask for legal advice but I 'm not sure that there is any direction on referring an item to the legislature. CHAIRMAN TOMLAN: It 's not mentioned . SECRETARY HOARD: I think the Board did that years ago - it just refused to take action on a case and said that the Legislative Body - that if any action were to be taken it should be the Legislative Body that took the action and once the. . . MR. WEAVER: Well we could move that this case be referred to Common Council for legislative solution to a currently unclassified activity . SECRETARY HOARD: And the Board at that time kept the case open, as I recall . Now this was nine years ago , I think . Kept the case open and when it became clear what direction the Council was going, then the appellant came back and got a variance that allowed him to do what he wanted to do but it was within the guidelines that the Council had already laid out so the appellant didn' t have to wait until every- thing went all the way through the process. MR. WEAVER: Advertising and that sort of thing . SECRETARY HOARD: . . . . it 's a matter of law. [discussion took place here between Board Members and Secretary Hoard which wasn' t picked up by the tape recorder] PAGE 35 BZA MINUTES 9/8/86 CHAIRMAN TOMLAN: Bear with us, we are getting there. We haven' t forgotten you. " If however the Board feels there is a question of law or a question of fact, to be resolved prior to its determination of the case it may table the matter or continue it to another meeting pending such determination. " So I think we could probably keep it open. I 'd rather keep it open than make a decision, myself, based on what we have here because I think we would force Common Council to deal with it faster , if, in fact , we had some- thing waiting . MR. WEAVER: The phrase you are using to defer decision or the Board . . . CHAIRMAN TOMLAN: If there is a question of law, which there certainly is, or a question of fact to be resolved prior to its determination of a case, the Board may table the matter or continue it to another meeting, pending such determina- tion. Tabling is essentially what we are doing , true? MR. WEAVER: Or continue to . . . CHAIRMAN TOMLAN: Or continue it to another meeting . Either way, we don' t know what other meeting we are going to meet yet , but - or which time it will be taken under considera- tion - pending such determination. MR. WEAVER: So the fact is that the Board has received Appeal Number 1712 for the establishment of an adult care facility? - Adult Day Care Facility in an R2b zone - finds that the Ordinance is silent upon this activity and refer it to Common Council for definition. PAGE 36 BZA MINUTES 9/8/86 CHAIRMAN TOMLAN: Yes and at the same time table the matter until another meeting at which time we will make some sort of determination. Does that cover all the bases? MS. FARRELL: Yes. MR. SCHWAB: Yes, and we will also give it to the City Attorney? Or , do we ask the City Attorney? CHAIRMAN TOMLAN: Well we can ask the City Attorney, cer- tainly, to comment upon it . . . MR. SCHWAB: If they have authorization - can they just go ahead according to this - would you - you are saying the City Attorney might . . . MR. WEAVER: That 's it , I 'm not willing to make a motion to refer it to the City Attorney because I would get a legal opinion back . MR. SCHWAB: That ' s right and you don' t want a legal opin- ion. MR. WEAVER: Pardon me Stuart . Sorry . CHAIRMAN TOMLAN: That will come later . MR. WEAVER: No - that might merely guide the Board without ever getting us a chance of a new definition or an inclusion of this particular use in the Ordinance and what we really foresee is the possibility that this, and others, may be received and it would be an ad hoc decision by the Board and all we've got is. . . MR. SCHWAB: I guess all I 'm looking - is from the appel- lant 's point of view - if they could somehow get a ruling from the City Attorney that they can go ahead right now PAGE 37 BZA MINUTES 9/8/86 because an item not covered by the Zoning Ordinance means you can do it . That certainly would be to their advantage to know that within the two weeks it will take him to figure that out . MR. WEAVER: Or five days. MR. SCHWAB: Or five days - once he gets to it . From their point of view I think they would like - if he is going to rule that way - and I haven' t the slightest idea but Tom says that might well be the ruling? SECRETARY HOARD: I don' t want to prejudge a legal matter . MR. SCHWAB: It certainly would be in the appellant 's best interest . It would be nice to jog Council or somebody as well . The third thing , it seems to me, is - I think you are quite right Charlie - we couldn' t grant a special permit right now because it is not in the proper form so we can tell the appellants to follow the guidelines a little more closely for a special permit for next month or whenever it appears. A more detailed plan and whatever all the require- ments are. MR. SIEVERDING: Do we want to encourage the appellant to do that prior to the time that Council has actually dealt with the matter and established what precisely ought to be submitted for this type of an appeal? CHAIRMAN TOMLAN: Assuming that we are going to go to Council and not to the City Attorney. MR. SIEVERDING: Right . My preference would be to go to Council and ask them to adopt a standard . I think the PAGE 38 BZA MINUTES 9/8/86 appellant knows what other remedies are available to him if he wants to do that without us formally having to initiate that action for him. MR. SCHWAB: From the appellant 's point of view, I 'm not sure that if they walk in to the City Attorney's office, they will get a ruling from him or an opinion, might be. . . MR. SIEVERDING: Or their own attorney . MR. SCHWAB: There own attorney could do that I suppose - a little less authoritative though . All right - go to Common Council ? CHAIRMAN TOMLAN: I think so . MR. SIEVERDING: That would be my preference. CHAIRMAN TOMLAN: Charlie, that was awfully close to a motion. PAGE 39 BZA MINUTES 9/8/86 DECISION ON APPEAL NO. 1712 FOR 317 LINN STREET The Board of Zoning Appeals considered the request of Clifford D. and Catherine M. Arthur for a use variance to permit use of the single-family residence at 317 Linn Street for a single-family residence plus adult day care center for up to nine adults. The decision of the Board was as fol- lows: MR. WEAVER: I move that that Board table Appeal Number 1712 and that the Common Council of the City of Ithaca be noti- fied that the Board of Zoning Appeals has received this appeal for the establishment of an adult day care center in an R-2b zone. Said use is not described in our Ordinance and our need is for a definition of that use and a placing of it into the procedures for a special use. (2) The appellants are dependent upon a timely resolution of the matter in order to establish their business and, subject to direction from Common Council , the Board holds the appeal open, awaiting that decision. MR. SIEVERDING: I second the motion. VOTE: 6 YES; 0 NO MOTION TO TABLE CARRIED PAGE 40 BZA MINUTES - 9/8/86 SECRETARY HOARD: The next appeal is APPEAL NO. 1713 FOR 106 WESTFIELD DRIVE: Appeal of Eric and Helen Dicke for an area vari- ance for deficient lot width under Section 30.25, Column 7 of the Zoning Ordinance, to permit the subdivision of the existing parcel at 106 Westfield Drive into two parcels. The single existing parcel conforms to the Zoning Ordinance with respect to lot width ; however the lot is not wide enough at the street line to permit subdivid- ing the parcel into two lots with the minimum lot width . Therefore, the appellants must obtain an area variance for the resulting deficient lot before the subdivision can be approved by the Planning and Development Board . CHAIRMAN TOMLAN: Again begin by identifying yourselves for the tape recorder . MR. DICKE: I 'm Eric Dicke. MS. DICKE: I 'm Helen Dicke. MR. DICKE: Mr . Chairman, as Tom Hoard stated in his intro- duction, this is a T shaped parcel of land that has an existing farm house and barn on it . What we would like to do is to convert the barn into our personal residence. Because there is only one hundred and eight feet on the front footage of the lot and the zoning for an Rla requires a hundred and fifty feet per residence, we are appealing so that we could have the house be on a lot that would be in PAGE 41 BZA MINUTES - 9/8/86 total conformance in terms of front , side yard area and everything else and that the barn property would be in conformance with everything except the front footage where we would need approximately twenty-five feet to get back to the barn and as you can see, because of the shape of the property there is more than sufficient land - there would be approximately one point nine acres that remain with the barn property. If there are specific questions I would be more than happy to entertain them at this time. SECRETARY HOARD: Just to correct something you said - those two parcels would require seventy-five feet of frontage. . . MR. DICKE: Yes that is correct, what did I . . . SECRETARY HOARD: It sounded like you said a hundred and fifty. . . MR. DICKE: Oh , I 'm sorry, no , each would require seven- ty-five. even-ty-five. MR. SIEVERDING: The new lot that would be created with the existing house would be - that would conform? MR. DICKE: That would conform. MR. SIEVERDING: So the only deficient lot would be the one that contains the barn? MR. DICKE: Correct and that would only be deficient in that twenty-five, plus or minus, footage and I put twenty-five pending the final survey. I mean. . . MR. SCHWAB: Could the house lot conform with giving a little more to the barn or is there any point in doing that? PAGE 42 BZA MINUTES - 9/8/86 MR. DICKE: It is close. The way the dashed line is drawn right at the moment is a ten thousand square foot lot which is the minimum Rla and that 's why it is stated that we would be in conformance. I can' t - I mean there are some other configurations I could give, but I think we would only be gaining a foot or two or three or four , is my reaction. For those of you who aren' t familiar with the site, it is quite steep . From Westfield Drive to the back of the barn is between a thirty-five and forty foot rise. Okay, it is up above the Army Reserve place where, again, if you are not familiar with it , this is the Army Reserve center - come up 79 and this is sloping up - those are five foot intervals coming up - so that it is hard to - I 'm trying to think how we would - the reason for the driveway going around is - that's the existing grade and driveway that was used by the farmer to get around the barn. There is no way to get , for instance, there is no way to get this road on that side because of the steepness of the slope and therefore change the configuration of this substantially. Again we could change it a couple of feet but I don' t think - I 'm not sure whether there is a minimum number you would be looking for but I - that 's my reaction. MR. SCHWAB: What 's this property right here? MR. DICKE: That 's a separate - that 's a single family residence on a rectangular fifty by hundred foot lot with a house right here - there is another house here - single family and this road then takes off and there is another PAGE 43 BZA MINUTES - 9/8/86 single family here which , interestingly enough , is another converted barn. So there are two barns that used to be owned by brothers that were. . . MR. SCHWAB: So it would be impossible to buy another fifty feet to the south? MR. DICKE: Practically, and make it work financially because of the expense of that , I would say yes, because we would have to buy the house with it . The house is almost thirty-five feet wide, so out of the fifty foot lot , I don' t think practically that would work . At the moment I don' t have that kind of money. MR. SIEVERDING: Is there a road that runs on the back side of the property - on the west side? MR. DICKE: On the west - there is Taylor Place but there is another set of properties - if you look at this hundred and sixty-three foot dimension - there is another hundred and fifty foot dimension and then Taylor Place. MR. SIEVERDING: I see, so access from this side wouldn' t be possible? MR. DICKE: Would not be possible at the moment unless I purchased properties up there, correct , and at the moment they are not for sale. That 's the area that Pivirotto - he has purchased all of that area. And then there are about four new houses that have just been developed right . . . MR. SIEVERDING: I see, Hovanec Brothers? MR. DICKE: Right , Hovanec . PAGE 44 BZA MINUTES - 9/8/86 MR. WEAVER: Is there anything in - if this application were to indicate about two or three building lots back in their western portion - would we still be held to the seventy-five foot street frontage? In other words, what I am saying , if someone is landlocked as this is, would someone have to get the full seventy-five feet from somewhere - some street in order to get access to a landlocked portion for further development for subdivision? MR. DICKE: Well this question was asked at the Planning Board . We have been there for preliminary - and they have given preliminary approval - I don' t mean to rule on it in any legal way - but what was described was the fact that because of the physical topography and the location of the buildings, that is what determined , in essence the land- locked nature and what I understood from talking with the Planning Staff, was that if the barn were not here, one would basically have to run a right-of-way - a road - up here to develop these properties. MR. WEAVER: And in that case they wouldn' t be treating this as a lot at all , they'd have to have a road of adequate. . . MR. DICKE: That was my understanding from the discussion, yes. MR. WEAVER: That is my understanding by the rules too . MR. SCHWAB: Do you foresee turning this into how many lots? MR. DICKE: Just those two . We plan to convert the barn and move into it . MR. SCHWAB: And down the road , who knows? PAGE 45 BZA MINUTES - 9/8/86 MR. DICKE: Well , yes but you see, there is no way - it was brought up in the Planning - there is no way the back could - you know, unless somebody were to purchase the land behind and come in from the back side - there is no way that anybody could develop the back without first coming back to the Planning Board , as I understood their ruling - was that that was, in essence, the safe guard in this whole thing , was that this was not something that we could then come back and subdivide this at such a point , without meeting all those criteria of getting an appeal at that point . Our intention is not to do that , our intention is to have that as our property. MR. WEAVER: Well the next owner might say, goodness what do I do next? If this were and , in fact , we have no idea of knowing what the Planning Board would do if you came in for a subdivision other than the one you are asking for , in other words a subdivision that would create - well , let 's say three instead of two lots. Would that then clear this from the seventy-five foot requirement and put it over into the acceptance of the subdivision on minimum dimensions and I don' t know what that is, but I - common sense, if that could prevail , seems to be an adequate access road would be all that would be required . I can' t imagine what public interest would be served by requiring the seventy-five foot right-of-way into a landlocked development . Tom, a question to you, if at a later date, the owner were to apply for further subdivision, is there anything that would prevent PAGE 46 BZA MINUTES - 9/8/86 using the proposed driveway for an access to further devel- opment other than the- judgment of the Planning Board? SECRETARY HOARD: You don' t think that would be enough? MR. WEAVER: It would be time consuming , yes. SECRETARY HOARD: Well I don' t see how it could meet the standard for an access road . MR. WEAVER: For a subdivision? SECRETARY HOARD: Right . I think it is too steep and too narrow. MRS. DICKE: Very good for sledding . CHAIRMAN TOMLAN: Further questions from members of the Board? (none) That being the case, thank you both . Is there anyone else who would like to speak in favor of granting this variance? (no one) Is there anyone who would like to speak in opposition? (no one) Then it is ours. PAGE 47 BZA MINUTES - 9/8/86 DECISION ON APPEAL NUMBER 1713 FOR 106 WESTFIELD DRIVE The Board of Zoning Appeals considered the appeal of Eric and Helen Dicke for an area variance to permit the subdivi- sion of the existing parcel at 106 Westfield Drive into two parcels. The decision of the Board was as follows: MR. SIEVERDING: I move that the Board grant the area variance requested in Appeal Number 1713. MS. JOHNSON; I second the motion. FINDINGS OF FACT: 1 ) There are practical difficulties with respect to meeting the front footage requirement for the back lot . 2) The exception preserves the character of the district within the spirit of the Zoning Ordinance. VOTE: 6 YES; O NO AREA VARIANCE GRANTED PAGE 48 BZA MINUTES - 9/8/86 SECRETARY HOARD: This last appeal is APPEAL NO. 1714 FOR 617 WEST GREEN STREET: Appeal of the Henry Highland Garnet Lodge for a use variance under Section 30.25, Column 2, and an area variance for a deficient front yard setback and a deficient side yard setback under Section 30.25, Columns 11 and 13 of the Zoning Ordinance, to permit use of the property at 619 West Green Street for construction of a fraternal lodge. The property is located in an R3a (Residential , multiple dwelling) Use District in which the proposed use is not permitted; therefore the appellants must obtain a use variance for the proposed use, as well as an area variance for the listed setback deficiencies, before a building permit or Certificate of Occupancy can be issued for the proposed building and use. A previous appeal (Appeal No . 1449) for this proposal was denied by the Board on July 7, 1982; the appel- lants are returning with a new proposal for a new building which may eliminate the need for the area variance. MR. ORKIN: My name is Jonathan Orkin, I am representing the Henry Highland Garnet Lodge No . F & AM and as Tom mentioned , we are back here again. One point of clarification I would like to mention is that there was a misprint in the paper , this is located in an Rab zone, not an R3a zone. The Henry PAGE 49 BZA MINUTES - 9/8/86 Highland Garnet Lodge did appeal to this Board for a use variance back in 1982. They presented a number of plans for the construction of a new lodge which essentially was an addition on to the presently existing structure. The presently existing structure is a residential home. It was formerly owned by a gentleman by the name of William Hart . The change that they are doing structurally is - it is two-fold , one is by a matter of necessity and the other is a ' matter to conform with the nature of the environment within which it is located and I ' ll get to them in a moment . But it is - they are willing to - as it was not presented earlier - tear down the existing structure and reconstruct a new building . We did submit plans, and it is my understand- ing that you have those sketches in your folders at this time. I would like to present a number of the members of the lodge who will speak to you very briefly - they are, I believe, interested parties. But prior to that I would like to just state for you why it is that they are here. On August 14, 1978 a member of the lodge by the name of William Hart died , with a Will , he left a number of items in his Will , but , if I could for a moment I would like to read one small paragraph of the Will . "All the rest , residue and remainder of the property, both real and personal and wheresoever situate, of which I may die, ceased or possessed or to which I may be in any way entitled to at the time of my death , I give, devise and bequeath as follows: one-half to the Garnett Masonic Lodge F & AM of Ithaca New York , and PAGE 50 BZA MINUTES - 9/8/86 I 'm quoting now, to be used for the purpose of construction of a Lodge building or for the maintenance of any existing Lodge building owned by them at the time of my death . " In 1982, April 9th , the estate of William H. Hart deeded in fee, 617 Green Street to the William Henry Highland Garnet Lodge No . 40 F & AM of Ithaca, New York . Now I have the deed here - this is not a restrictive covenant - there is no covenant that runs with the land and I wouldn' t presuppose to say that it is part of the deed - that it can only be used for such purposes. This conveyance was made, and I am reading from the deed "and accepted as partial distribution to the grantee which is the Lodge herein, of it 's interest in the aforesaid estate of William H. Hart . " The members are not bound by the deed , by the real property law neces- sarily, to use the structure as set forth in Mr . Hart 's Will . They are, however , bound personally and they are bound - they feel with the memory of Mr . Hart , to use what they received under his Will for the purposes for which it was intended . When the property was deeded and when Mr . Hart died - they did not own a lodge. They still do not own a lodge. They presently meet in the St . James Church on Cleveland Avenue. So it is very difficult for them to necessarily comply with the mandates of the Will . It 's for the use, for the construction of a lodge building or for the maintenance of an existing lodge building - well they didn' t own one and they didn' t have anywhere to go to construct a lodge building . The estate was represented by Wesley PAGE 51 BZA MINUTES - 9/8/86 McDermott , he is in Ithaca on Tioga Street and I asked Mr . McDermott to appear this evening , specifically because when this was previously heard there were a number of questions raised by the Board that previous Counsel for the Garnet Lodge could not answer . Necessarily is what was the condi- tion of the premises when Mr . Hart died in 1978? Why did it take so long for anything to happen? In part that is answered by Mr . McDermott and I could either read from his affidavit which I will present to the Board or I could leave this with you at your preference, it is getting late. Just quite briefly, as part of his last Will and Testament , the decedent , Mr . Hart , left one-half of his residuary estate to the applicant - which is the Henry Highland Garnet Lodge - that as a party of the said estate, left the premises known as 617 W. Green Street , consisting of this lot and the improvements at the above address which, at the time of his death , had an appraised market value of ten thousand dol- lars. Mr . McDermott continues, that I am personally famil- iar with the structure on the premises at 617 W. Green Street and have been on said premises in my capacity as Attorney for the estate on several occasions. Based on my personal knowledge of the condition of the premises, it was my opinion that the developed structure thereon had minimum value on the date of the decedent 's death and thereafter and that shortly after his death the first floor was caving in and on information and belief the sills of said structure were rotten. The building was not in great shape. I PAGE 52 BZA MINUTES - 9/8/S6 believe there will statements later on this evening that none of the buildings owned by Mr . Hart were in great shape but this is what they were left with . That the applicant herein opted to take the subject real property as a partial in kind distribution of the residuary estate. And then it is my opinion, based on my personal knowledge, that the existing structure on said premises has little or no value without the investment of sums much greater than the proper- ty is worth . That from the date of the decedent 's death which is 1978 to the date of the transfer to the applicant , the estate had never received a purchase offer on said premises. MS. FARRELL: Never a purchase offer when? Between when and when? MR. ORKIN: Between 1978, when he died , and 1982 when the property was transferred as an in kind distribution. MS. FARRELL: Was it for sale during that time? MR. ORKIN: It was part of the estate but I do not know whether it was for sale during that time, nor do I know if it was rented - it was listed for sale? MR. GIBBS: It was for sale with everything that he did have. SECRETARY HOARD: Excuse me, would you identify yourself for the record please? MR. GIBBS: I 'm sorry. My name is Lambertis Gibbs, I 'm a member of Henry Highland Garnet Lodge No . 40. PAGE 53 BZA MINUTES - 9/8/86 MR. ORKIN: Thank you. I will be referring to members of the Lodge to supplement the information for you . Again I asked Mr . Keller , on my behalf, to examine the property as it presently is constituted . And I would like to read very briefly into the record his statements concerning 617 West Green Street . "The property is currently owned by the Henry Highland Garnet Lodge and it is assessed for $14,800.00 on the 1986 City of Ithaca tax rolls. The purpose of my inspection was to determine the current fair market as of the above date and determine the feasibility of marketing this property in its present condition. In my opinion the two problems that exist are first the property is not habitable in its present condition. All of the basic utilities need to be replaced mainly because the house has not been heated for several years. The roof leaks badly; therefore there is major water damage throughout the interi- or . The structural components are questionable. The second problem is that the character of the neighborhood is a mixture of commercial and residential . The residential property values in that area range from $25,000.00 to $40,000.00. In order to salvage the existing structure someone would have to invest more money in an area where property values are declining , than they could reasonably expect to recoup in the near future. Therefore my opinion, because this property is located in an area that is zoned residential , the highest and best use would be to demolish the existing building and try to divide the vacant lot in PAGE 54 BZA MINUTES - 9/8/86 half and offer it to the adjacent neighbors to expand their properties. Based on the information stated in this report it is my opinion that the fair market value of the subject property is, as of May 16, 1986, $7,500.00. " Basically Mr . Keller 's statement is that the property, as it is presently constituted is beyond rehabilitation. MS. FARRELL: What is he basing their reduced property values in that area on? MR. ORKIN: I believe he is basing it on the changes in the commercial zoning of the area, which is directly across the street . I believe, since that date, there is a Professional Building that has since come in, directly across the street . At that time there was Perry 's Trash and Treasures - I don' t know what is moving in there now, it is my understanding that property has been sold . And it is directly located to the increase in traffic on Route 79. Now I will get to exactly the area location in a moment . Does that answer your question? MS. FARRELL: Sort of. MR. ORKIN: Okay . The property now is in a Rab zoning area . It is a very curious area. Right across the street we have a different zoning . In the back lot , right behind it , we have a different zoning . Across the street there is - directly across the street - there is the Cornell Laundry, there is a Professional Building , that has since established a brand new structure, there is Ceracche Television or American Cable Television, I believe is the proper name, PAGE 55 BZA MINUTES - 9/8/86 there is Kentucky Fried Chicken, within one hundred feet , there is Meadow Street within a hundred feet , the property faces Route 79 and all of the increased traffic that is on Route 79. I am submitting to you that the nature of the property is changing . It is not suited , as Mr . Keller stated , specifically for a residential neighborhood . The property behind it is a more restrictive zoning , it is R2b . There will be statements made tonight , I believe, from individuals who reside in the R2b restricted zoning area and I ask that that differentiation be made clear . We are not trying to make this an R2b , we are trying to have a permit- ted use in the R3b and that lends us to what is it they are trying to do? Basically Mr . Gibbs has thought up a number of plans and I 'm going to ask Mr . Gibbs to describe for you the plans and his intentions for the proposed use. MR. GIBBS: Okay, on the first one, as I was instructed , this shows the original size of the lot with the present building - the existing building - that is this one - as it stands now. The size of the lot and the various streets connecting . Okay . A floor plan from the same print which looks like this one here, you will see, hopefully, a build- ing that could be put on the same spot , meeting all the zoning requirements, ten foot set back from each side - would hopefully - the lines drawn on the sides would be used , for parking . The Cook side of the street - is adjacent to , Kentucky Fried Chicken - and the east side is where Mr . - PAGE 56 BZA MINUTES - 9/8/86 Trash and Treasures used to be - and the back side is Cleveland Avenue. MS. FARRELL: So this is a new building? MR. GIBBS: Hopefully, if permitted . Okay, the one with the four buildings on it would be more or less exactly what they say, one would be the front , not using the front of the building as an entrance - using the parking lot side - which would face the Cook side of the building - as an entrance. So whatever facade you want , you would like to put on the front - maintaining the same type facing that you have in the neighborhood . It will not be much of a change from what it looks like now, it would just be a new building , main- taining the same outlook with a front - a lesser front and a rear elevation and the fourth one which is a primary factor for this is, to have a meeting room which would be on the second floor . MR. ORKIN: It is my understanding that the structure will look like a split level home, is that right? MR. GIBBS: Yes without going up beyond the reach of the other buildings in the neighborhood . It will not be like the one across the street that would tower over the others. It will be mainly - let 's say, you put your building down at almost the same location and you go down just deep enough to give yourself an eight foot ceiling or whatever the require- ' ment is but the second floor will be more like a cathedral type where it will not be a flat ceiling so you can use all PAGE 57 BZA MINUTES - 9/8/86 you have inside, for space, which will also save on building costs and heating costs. MR. ORKIN: It is also my understanding after speaking to members of the Lodge that a large portion of the labor involved in the construction of this proposed Lodge, will be donated because of the lack of funds that the Lodge present- ly possesses. Any questions for Mr . Gibbs right now? MR. SIEVERDING: On this sketch it says meeting room for Master Masons, Eastern Stars and Red House, are they three different groups? MR. GIBBS: Yes they are. Okay . The Master Masons are the principal Masons which go from one to three degrees - a Master Mason are men of the Blue House. The Eastern Stars are the female members of Master Masons, they are wives, sisters, daughters - and the Red House is another Chapter which consists of the same people, just another advanced degree. MR. SIEVERDING: And how many people in total are we talking about? MR. ORKIN: Nineteen. Nineteen members of the Lodge. MR. SIEVERDING: Using the facility at any one time? MR. GIBBS: No . You have nineteen present members, we also do have visitors from other Lodges. In other words, it is similar to what you would say - you have - except for one , drawback - we mainly deal with membership of Brothers in our District . No other persons come into your Lodge - like you just can' t drop into our Lodge - it is a private Lodge like PAGE 58 BZA MINUTES - 9/8/86 the Odd Fellows - where they are. They have a meeting room and they have the rest of whatever they have. . . so it is similar to that , more or less, except that we are trying to get one and they have one. MR. ORKIN: In regard to what exactly Masons will do at the Lodge, I have asked Ozzie Richardson to address the Board . MR. RICHARDSON: My name is (unintelligible) Richardson, aka Ozzie Richardson. Masonry, as practiced by (unintelligible) Masons has its basic founding in the Bible. It is not humane that you belong to any specific religion. The main question that you are asked is if you have a belief in a Supreme Being - so it 's not closed in that sense. We received a charter or a warrant from the Grand Lodge of England in the 1700's. It has been continuous - in continu- ous use from that point until this. There was a Lodge here in Ithaca when I was born - that is sixty-four years ago . I don' t know how long it has been here prior to that and we've never had any problems - as a group of young - well a group of people - we'd like to get a few young ones in - that are bound together by Brotherhood and affiliation. Now when we first approached this August Board before, there was a lot of misunderstanding . We have no use or any idea of changing the appearance of the neighborhood - we have no idea of disrupting the neighborhood - we need a place to meet . The church is not adequate. You need a certain amount of actual floor space to move around in a Masonic Hall . We've had possession of this property - it was deeded us in 1978 and PAGE 59 BZA MINUTES - 9/8/86 since that date we've been like the children of Israel , wondering around in the wilderness. We'd like to get out of that state. MR. ORKIN: Ozzie, is there intention of having a bar on the premises? MR. RICHARDSON: Masonic bodies do not have bars in their Organization - they don' t have a bar over here at the Masonic Temple. And we practice from the same manual that that Masonic Body practices from. It is a place where we have to have our meetings, which are esoteric in nature but they are based on the principals that we support the Govern- ment and work on the religious aspects of the Bible. There is not - we have occasional get-togethers with our counter-parts, the Eastern Stars, we may have, from time to time, a bar-b-que or a cookout , something of that nature but there is nothing in the Masonic Body that has anything that goes contrary to the law. MR. SIEVERDING: How often do you have meetings? MR. RICHARDSON: Normal meetings are held twice a month . CHAIRMAN TOMLAN: And how often do you get together with the other groups? MR. RICHARDSON: There are - in Central New York State - six Masonic Lodges. We have what we call the Sixth District Masonic Association which has to do with taking care of Brother 's death benefits and stuff, that each member - each Masonic Body would send a group, in turn, - I just came back yesterday from a meeting in Utica - the next one is in PAGE 60 BZA MINUTES - 9/8/86 Binghamton, of that nature, but we have visiting Brothers two or three might - I know that we have a meeting this Saturday night - they say , let 's go down and visit Henry Highland Garnet Lodge and there would be three or four of those. Sometimes they come with as many as eight or nine, which helps us because our membership is so disbursed that we need people to fill the stations to open the Lodge sometimes. CHAIRMAN TOMLAN: So the maximum number of people that you would see at any one of these large gatherings, which would include representatives from other places, would be about what - about how many? MR. RICHARDSON: I don' t think it would go over a hundred , I doubt it would be that many . We have a membership of nineteen that are present in this building tonight - eleven people - that is basically what we have at a meeting - ourselves out of the nineteen members that we have, we may garner eleven. On any given meeting night , no more than eight or twelve visitors, no more than that . CHAIRMAN TOMLAN: So as a general rule you are talking about twenty? MR. RICHARDSON: I am talking thirty down. CHAIRMAN TOMLAN: One of the questions that was raised earlier is whether in fact the property has been for sale. Has it been listed and whether in fact it has been on the market? PAGE 61 BZA MINUTES - 9/8/86 MR. ORKIN: I 'd like Mr . Gibbs to return for specific questions. CHAIRMAN TOMLAN: Fine. MR. WARE: My name is John W. Ware, I was the Executor of the Will . James L . Gibbs was the Executor and he passed on and they had all of the properties for sale. It seems that part of the properties had to be sold off to satisfy debts and so forth and then everything else was put up for sale. A few of the properties were sold before I took over and before Brother Gibbs passed on, that property was deeded to Henry Highland Garnet Lodge but before that time it was deeded to us all the properties were for sale. As has been stated before, none of them were in too good shape so consequently it wasn' t easy to sell them. We eventually got rid of everything - the Lodge took that one. MS. FARRELL: So everything else has been sold? MR. WARE: Oh yes, the estate has been settled . CHAIRMAN TOMLAN: Do you have any idea what the asking price was when it first came on the market? MR. WARE: They varied at ten thousand dollars. . . MR. SIEVERDING: This is between, if I remember your earlier presentation, from '78 to '82? MR. WARE: That is correct . MR. SIEVERDING: And from '82 until now? MR. ORKIN: It has not been on the market . MR. SIEVERDING: It has not been on the market? MR. ORKIN: To the best of my knowledge. PAGE 62 BZA MINUTES - 9/8/86 MR. WARE: No it has not been on the market since it was deeded to us. MR. ORKIN: In 1982 was when the Garnet Lodge applied for the first variance and I believe - if I can characterize the response - after it was denied they didn' t quite know what to do with the property, and it was pretty much left to fall to disuse. CHAIRMAN TOMLAN: Do you have any idea why that was the case? MR. ORKIN: Why what was the case? CHAIRMAN TOMLAN: Why it was allowed to fall into disuse? I mean it seems - we have the '92 decision in front of us and it seems - at least the reasons for that decision are fairly clear . MR. ORKIN: I understand . CHAIRMAN TOMLAN: So it was just allowed to fall into disuse? MR. ORKIN: Let me put it to you this way. The property - when it was acquired by the Henry Highland Garnet Lodge - was a shambles. The disuse that it fell into was not too great a fall . The members maintained it to the best of ' their ability, kept it up - they did not put money into it , the reason they didn' t put any money into it was because they saw no future for it , for them. CHAIRMAN TOMLAN: Well let me just simply respond . One of the first findings of fact was that no hardship had been PAGE 63 BZA MINUTES - 9/8/86 shown in that no evidence was given to demonstrate that the property had been on the market for sale. MR. ORKIN: I understand . CHAIRMAN TOMLAN: Now it seems to me that if, in effect , you would come in with some demonstration that you still can' t sell it and here you have just said that it hasn' t been for sale. MR. ORKIN: The reason I presented Mr . Keller 's statement was that the property would not sell for any residential use. That was the purpose of Mr . Keller 's statement . I understand that the property has not been on the market since '82. MR. SIEVERDING: If the assumption is made that the property is sold with the intent for somebody to actually live there, in the structure. . . MR. ORKIN: Use it as designated in the Rab zone. . . MR. SIEVERDING: Well the alternative though is to take - it is a fairly large lot - I mean there are other uses - you can put residential uses on the lot itself - it is an eighty-six hundred square foot lot , which in an R3 zone would lend itself to six or seven. . . MR. ORKIN: If it is practicable to use the lot as it is presently constituted , what would you put in something - in that kind of a space that is now provided for in the R3b7 And that is the question mark , and what is appropriate to be used in that area right now and - it is a big question mark . PAGE 64 BZA MINUTES - 9/8/86 MR. SIEVERDING: But I think Mike's point is that - certain- ly this appeal would have been strengthened by an effort to market the property from that period from '82 to '86. MR. ORKIN: I understand . MR. SIEVERDING: Either as a potential building site or for someone to buy and renovate the property . MR. ORKIN: I don' t necessarily believe that is fatal because we have come forth with a statement by a licensed realtor that the property has no marketable use at this time as a residential structure. The only value it may have, and this is what he set forth is, as a vacant lot . MR. SIEVERDING: And he is saying the vacant lot is worth seven thousand dollars? MR. ORKIN: Seven thousand five hundred dollars as the property is presently constituted , is what he says. He does not make a statement as to what is the amount of each lot . I understand that the property has not been on the market . I also note for the record that the - the fact that the property was for sale was not presented at the 1982 appeal . Why that was I don' t know. I 'd like to note that if you take a look at what is a permitted use here, you can have a fraternity here, you can have a sorority here, you can have any sort of multiple dwelling , in other words if the Lodge members use the upstairs and if they put five people in here they could try to call themselves a fraternity, although I believe a fraternity is generally considered one that is associated with the University or College. What they are PAGE 65 BZA MINUTES - 9/8/86 trying to do is improve the present structure as it is presently constituted . They are trying to use the structure for the purpose of a lodge as it was given to them through the Will . And that is what we are here for . A question to you is, once there is presentation of the opposition, do we have an opportunity to respond? CHAIRMAN TOMLAN: Not unless we have further questions. MR. SCHWAB: Can I ask you now, very quickly, just two or three points, how does this appeal in '86 differ from the one in '82? What is the new evidence and what is the new (unintelligible) MR. ORKIN: The new material is the new proposal for the structure itself. I don' t know if you have, in your files, I think Mr . Hoard has them, they had a totally different plan for the structure - the Lodge itself which included maintaining some of the front structure . What our new proposal is to level the present Lodge - if that is what is required . So it is basically a new construction - a new building - a new proposal for the site. MR. SCHWAB: Are you also saying that there wasn' t evidence in '82 that the property had been up for sale? MR. ORKIN: I have reviewed the minutes, as presented to the Board in August of 1982. I found no notice in there - I may be mistaken - but I do not recall that it was listed as represented to the Board . MR. SCHWAB: And no realtor talked? PAGE 66 BZA MINUTES - 9/8/86 MR. ORKIN: There was no realtor who presented at the Board in 1982. MR. SCHWAB: So , are you saying that we have new evidence now that between '78 and '82 it was for sale and not sold and that you have a realtor 's statement in '86 that it could not sell for more than seventy-five hundred dollars? MR. ORKIN: That is correct . CHAIRMAN TOMLAN: Do you have more? MR. ORKIN: I have nothing more . CHAIRMAN TOMLAN: No one else? MR. SIEVERDING: Just one question relative to parking . How many parking spaces are there proposed and how many would be required? SECRETARY HOARD: I think that is on your worksheet . MR. WEAVER: Sixteen, I think . MR. ORKIN: I have seventeen. MS. FARRELL: What is required? MR. GIBES: I would like to say, if I may, at the same time, the majority of the members of this Lodge live within walking distance of this so it will not be a case of you have fifteen people driving to the place. CHAIRMAN TOMLAN: Well you have correctly divined the source of my question, certainly. Well we always wonder about the influx of parking in downtown locations because, as you • know, if you are from various neighborhoods downtown, it really gets to be a bit of concern when vast parties are PAGE 67 BZA MINUTES - 9/8/86 held or groups of any kind get together , so we are always looking at that issue. MR. RICHARDSON: Tell me about it , I live on Plain Street , in the one hundred block and let me tell you about it . MR. SIEVERDING: Well are we talking daytime meetings or nighttime meetings? MR. ORKIN: When are these meetings? MR. WARE: When we have a meeting from the district , which is rare, but occasionally, they usually are on a Sunday afternoon. Our meetings are held at night on the second and fourth Saturday nights. Eastern Star meets at night also . MR. SIEVERDING: I looked in there and there is no Club or Lodge - there is no requirement - no parking requirement related to this particular use. CHAIRMAN TOMLAN: Well no wonder it says "all parking requirements are met" . MR. SIEVERDING: That 's right . SECRETARY HOARD: That I wrote in there. CHAIRMAN TOMLAN: Thank you. MR. ORKIN: Thank you. CHAIRMAN TOMLAN: Is there anyone else who would like to speak in favor of granting this variance? (no one) Is there anyone who would like to speak in opposition? You want to speak in favor? Well if you want to say something to have your name on the record , you've got to come forward and identify yourself. Just tell us who you are and where you are from, otherwise we don' t record you back there. PAGE 68 BZA MINUTES - 9/8/66 MS. HARRELL: All right . I 'm Ethel Harrell , 611 West Green Street . I 'm looking at him because he knows - I think he remembers me. . . SECRETARY HOARD: Yes I do . MS. HARRELL: I live at 611 West Green Street and I 'm - I have known these people for a long time and am in favor of them trying to get a place and they have had such a hard- ship . I know that meeting places is hard and in the winter time - if they had a place of their own, it would be a little bit better , okay? CHAIRMAN TOMLAN: Any questions from members of the Board? Thank you. Is there anyone else who would like to speak in favor? MS. MAGEE: Hi . My name is Anne Magee and I 'm the Warden Matron of the River Chapter No . 19 of the Eastern Star Affiliation for this jurisdiction and I 'm very much in favor of us trying to get this place because now we are meeting in the church , also , which is very inconvenient at times when we want to have initiation and if the church decides that they want to have a dinner in the church - they will come first , we have to cancel out . And it has been a hardship on US. CHAIRMAN TOMLAN: When the guys get together , do the girls get together too at the same time, I 'm just curious? MS. MAGEE: No we meet on a different night . PAGE 69 BZA MINUTES - 9/8/86 CHAIRMAN TOMLAN: Just kind of curious. Thank you. Any further questions? Is there anyone else who would like to speak in favor? MS. PACE: What do I have to say? CHAIRMAN TOMLAN: What do you have to say? You can say anything you would like to . Now is your chance. I mean if you have come all the way, right? You might as well get up here and say your piece. MS. PACE: Well I 'm one of the neighbors. Carolyn Pace. You want my opinion? My opinion - anything would be an improvement from the condition that is there now. CHAIRMAN TOMLAN: Well that certainly is an opinion. MS. PACE: It sure is. That 's the way I feel about it . It has been dilapidated and it doesn' t do anything for the street and anything that can be improved would be an im- provement . That is all I have to say. MS. FARRELL: Where do you live? MS. PACE: 608 W. Green Street between the printing building and the professional building . CHAIRMAN TOMLAN: We got you. MS. PACE: Right in the center . CHAIRMAN TOMLAN: Is there anyone else who would like to speak in favor? MS. MULLENS: I 'm Mrs. Genevieve Mullens, I live at 609 West Green Street . I 've been living in that neighborhood all my life and I know quite a few of these gentlemen and they are very fine gentlemen and I know if they say they are going to PAGE 70 BZA MINUTES - 9/8/86 do it , they will make an improvement and I know there will never be no treatment like that . I really would like to see them get it . As I says I was born and raised around here and I know mostly all of these people and they are very fine. CHAIRMAN TQMLAN: Any questions? Anyone else in favor? Going once, going twice. . . okay . Anyone opposed? MR. DARFLER: My name is Richard Darfler , I live at 212 Cleveland Avenue and I am speaking in opposition to granting a use variance from the Rab to what is effectively a B2 use on the property at 617 West Green. I live to the rear and sixty-six feet east of this property and I 'm not opposed to any group or organization, I 'm opposed to granting a busi- ness variance in what is essentially a residential neighbor- hood . The lots that surround this property, excepting for the - to the east , which is Ralph Perry's property, are residential . We are talking about west - directly across the street to the north and all the lots behind it that border on the back yard . It is no accident that zoning changes from residential to business happen across streets . We are talking about - this is our back yard and their back yard - we are not talking about facades and facades - people don' t like to look across the street and see business - that 's true. People like it less when they have to share their back yard with businesses and/or parking - those aren' t the kind of uses that look good adjacent to residen- tial properties. Collectively the residents of Cleveland PAGE 71 BZA MINUTES - 9/8/86 Avenue and other properties adjacent to 617 West Green put in a lot of time and money to make ourselves a revitalized residential neighborhood and it is enough we contend with traffic and noise from Meadow Street without having the same in our back yard . We don' t need an extra thirty people and ' a parking lot in a back yard for sixteen or whatever . I certainly take issue with their assessment of our neighbor- hood as a mixed commercial and residential - yes it is commercial across the street in parts on Green Street - we have our differences with that - Ivar Jonson was supposed to build this fine little building where he built his commer- cial property - that was supposed to have this nice facade that would blend in. Well he didn' t . Once he was allowed to do what he wanted to do , he did what he wanted to do and it wasn' t what we expected would happen. In order to grant a use variance, the owners of the property have to show there is a hardship - it is consistent with the neighborhood and the property would be unable to be used for a use which is consistent with the present zoning . I don' t think any of these criteria really are met . We are a residential neigh- borhood . Willing the property to a group for a non-conforming use is hardly a hardship and since this property could be sold for residential use, I don' t think that this is a hardship . I 'm sure the organization that moved the house that used to be Rhine Antiques at the end of State Street where they are now putting up a building there would much rather have moved that house one block to Green PAGE 72 BZA MINUTES - 9/8/86 Street as opposed to moving it all the way down to Route 13a where it was moved to . Neighborhood Housing has moved other buildings - this is a big double lot - it seems like another use could be made of this lot without having to grant it a variance. I don' t see how a group willing to spend money on grand building schemes can' t afford to buy a property that is zoned properly and renovate it as opposed to building a new structure and I 'm a contractor and I know the cost of renovation versus new construction - there are houses for sale in areas that are zoned properly at present - on Route 13, that would meet their needs if they were renovated. I 'm not saying that they are in wonderful shape but we are talking about their willing to spend so much money on a property that is not properly zoned, why not take that money and put it into a property that is properly zoned? This building has been allowed to deteriorate to a sad state - it was a residence of Mr . Hart - nothing has been done to keep this property up , it is a sort of self-fulfilling prophecy , we' ll let it run down hill , create a hardship and then there you have it . You know, we've actually seen one commercial property - Perry's Trash and Treasure - is now -is not as commercial a use - it either - I 'm not quite sure what it is being used for but there is not the traffic in and out and Green Street is pretty well plugged during most of the time. Mr . Perry was a good neighbor and I believe at one time he had offered - this he stated to me and I don' t know whether this is an absolute fact but he said that he had tried to PAGE 73 BZA MINUTES - 9/8/86 buy the house at 617 West Green Street and he couldn' t . I don' t know - that may or not be fact but that is something he relayed to me. In leaving the facade of this building up , is all fine, but we are not talking about the facade, we are talking about the rear of this property and we are looking at a large area of parking - we are looking at a building that isn' t residential looking . I mean, it is not enough to say, it was willed to these - to be willed the property and suppose I will my house to Howard Johnson - tell him he has to build a motel . I can see that the sale of this property - the proceeds could go toward purchasing and renovating another property . The property is in the Hart Estate - there are properties in the Hart Estate that have been renovated that were in the same general shape - mine included - as well as Ethel Harrell ' s at 611 Green Street and those are happily integrated in the neighborhood and I don' t see why 617 should be singled out as some horrible disaster which nothing can happen to . It has happened to other houses, it can happen to 617 Green Street . I ' ll quickly dispense with the arguments about an intrusive use as stated - and the appeal with the bad neighbors and the R1 districts can be more intrusive than uses in B3 but if it - what is bad is the neglect of the property by the owners. It has been very intrusive visually and I find it hard to believe that the minor maintenance which was ne- glected on that house and that that indication of what - how they feel about the neighborhood - I can' t believe that PAGE 74 BZA MINUTES - 9/8/86 that 's going to change that after they move in, if they use that property. It has been a sore point with us - we've - we have boarded up the building on a couple of occasions to keep kids out - that property has just been left - and contrary to what has been said - very little work has ever been done on it other than knocking down one of the pear trees and doing a little back hoe work . This appeal is just a rehearing as far as I am concerned with a new set of floor plans - of the one that was heard in July of '82. The BZA agreed with my assessment then - the situation - and I hope they are agreeing now that the neighborhood should not suffer commercial encroachment for whatever reason, no matter how benevolent the group is that requests it . The ramifications of setback , lot coverage, parking area, etc . remain the same and I think they are really inconsistent with a residential area . I appreciate their need for a space, I think it should be in a properly zoned area . Thank you. CHAIRMAN TOMLAN: Questions from members of the Board? MR. SCHWAB: Do you have an estimate on what you think this property could sell for? MR. DARFLER: I think probably that price is well within about the right numbers for two lots. I haven' t looked at the property and I 'm no real estate assessor . As that property - since it has been sitting for eight years, it is in pretty bad shape because nothing has been done to it . Were the roof kept up , so that the interior pinnings weren' t PAGE 75 BZA MINUTES - 9/8/86 rotten and were other maintenance done to it , I mean - in 1980 when I bought my house - also from the Hart Estate - I didn' t pay much for it and it had been abandoned for seven years - had been unlived in. If that house had been lived in for all that time, when Mr . Hart died then it was aban- doned effectively nothing was done to it - there was some minor entries by kids in the neighborhood and so on and so forth - it wasn' t in great shape but prices of properties that were abandoned at the time have climbed drastically compared to when I bought my house and I would guess eleven or twelve thousand might be more in the ball park , especial- ly for a double lot , I mean the lots are worth about thir- ty-five to forty thousand apiece. A double lot there is pretty nice and with the neighbors to the west of them have a very nice lot and all the neighbors behind - I think it would be salable at something like a reasonable price. Beyond that - what difference does it make, if they are willing to put so much money into a building , why not sell that property, use those proceeds and take it and put it into a building in a properly zoned area, which there are. I 'm sorry Mark Keller didn' t write a letter saying , well , you know, we've got these properties for sale in a properly zoned area that would be purchasable. MR. SIEVERDING: Is your opposition to this particular use in this location? Or what could potentially happen if - say a variance were granted and the property were subsequently sold? PAGE 76 BZA MINUTES - 9/8/86 MR. DARFLER: I don' t know that 's always been - I wondered about that as a question whether - I am assuming that once they are granted a use variance for what they are doing - then I 'm not quite clear as to what setbacks they are required to meet , are they then - is that property then subject to the standard setbacks of B3? MR. SIEVERDING: B2. MR. DARFLER: Is that true? If they are granted the use variance. . . SECRETARY HOARD: And then the zoning changes? No , they are only required to comply with the setback requirements for the R3. MR. DARFLER: The R3. I see. MR. SIEVERDING: And with the use. . . SECRETARY HOARD: And the variance limits them to the use proposed , it doesn' t make it a B2 property. MR. SIEVERDING: So it would always have to be a lodge of one type or another? MR. DARFLER: Of course my preference lies in seeing it residential and - it fits in with our neighborhood better and this is through the back yard , we are all connected , there are no fences between 224 to 210 no fences in between properties on Cleveland Ave so that the entire back yard looks like one big back yard . And I would feel very sorry for the people who live at 619 Green St who would then be trapped between a fence that we finally erected to block their view of the Kentucky Fried Chicken parking lot and PAGE 77 BZA MINUTES - 9/8/86 then another potential lot on the other side - then what is to have those people finally give up and say, hey I 've got parking lots on both sides, grant me a use variance so somebody - a business can move in here. You know, I would certainly side with them at that point because they are between two parking lots. It 's a continuing problem with encroachment on residential neighborhoods and especially where we are which has got Green Street , State Street and you skip Cleveland Ave which is residential and then you get to Clinton Street so we are kind of this little island sitting in there (unintelligible) MR. SIEVERDING: Just to follow that line of thought , parking , I guess as we heard , is not a particular require- ment for this use in this zone so it is conceivable that the size of the parking area - the back yard - could probably be reduced and then when some appropriate screening and buffer is . . . potentially a less visual impact . . . MR. DARFLER: Potentially but then who is to - who would make the decision - I mean, there is - what would require them to not pave their entire back yard? I mean - I am just throwing that out as hypothetical . You know, if they had fifty people or thirty people that needed parking , it 's going to be tough to find parking on Green Street . I don' t know what kind of incentives there are for maintaining a back yard as opposed to paving a back yard where they would have more parking . I haven' t gotten much from them as having an attitude toward the residents of Cleveland Ave. PAGE 78 BZA MINUTES - 9/8/86 Before the 1982 meeting we requested that we meet with them and sort of discuss our differences and nothing came of it . I was pretty hurt at that point - we wanted to sit down and make sure that this didn' t become an issue of people who used to live in the neighborhood and people who currently live in the neighborhood . I didn' t want that to make a difference between us and some of these people are my neighbors but we never really sat down with anyone to discuss anything because we were just - nothing came back from them. MR. SIEVERDING: A potential example, I guess, or how something like that might be enforced - that is something , I guess that the Board can discuss - would be a conditional type of a variance - where those kinds of restrictions are made a condition of granting a use variance. MR. DARFLER: I 'd like to see some effort made toward selling the property as a residential property first . It hasn' t been done - I 've never seen a for sale sign in front , I 'd like to see some effort made - at a reasonable price - if seventy-five hundred dollars was what was put on it as a price tag , I 'd like to see it listed for a year or two years - even a year - at that kind of price and talk with Neigh- borhood Housing and see whether they would be interested in the property - just to make an effort - just make an effort to sell this property for residential use. If it doesn' t happen then perhaps with limits put on their building and things like that , I 'd be in favor . PAGE 79 BZA MINUTES - 9/8/86 SECRETARY HOARD: Who did you approach in '82? MR. DARFLER: We talked to their lawyer , we had - Ray Schlather had talked to their lawyer at the time and tried to set up a meeting . And in fact we had - even Ray at that meeting - had suggested that we table it for another meeting so that we could sit down and discuss - and at that point it was - they decided not to . CHAIRMAN TOMLAN: Do you remember who the lawyer was from that time? MR. SIEVERDING: Bob Hines. SECRETARY HOARD: Hines. MR. SIEVERDING: Right . But the record from that meeting also indicates that that letter from Schlather hadn' t been discussed with the people from the Lodge. MR. DARFLER: No , I believe it was read into the records. MR. SIEVERDING: It was read into the record and Mr . Hines suggested that he didn' t see any advantage in tabling the motion to grant the variance so that these discussions could take place. CHAIRMAN TOMLAN: I see. Okay . Further questions? Thank you. Is there anyone else who would like to speak in opposition? MR. GAFFNEY: My name is William Gaffney and I live at 220 Cleveland Avenue, which is a property which is directly south of the property in question. I think Rick has pretty much summed up most of the major factors in this case but I would like to add a couple other items. I would like to PAGE 80 HZA MINUTES - 9/8/86 number 1 , second , to say that Ralph Perry, in discussions with me also told me that he wanted to buy it , had ap- proached the owners to purchase the house and had been refused an opportunity to buy it . Also the neighbors to the west , the Cooks, that live at 619, they also had made it known that they wished to buy the property and had been told that it was not for sale. So I have serious questions about whether the property was for sale at any time. Also , Neighborhood Housing , in the last presentation - we made it known that Neighborhood Housing was interested in the property and in a discussion that one of my neighbors had with me tonight , he said that he talked with Neighborhood Housing today, and was again told that they still are interested in the property - in purchasing it and that there is a piece of property that would not require any demolition of existing structure - it is a vacant lot - farther to the east on Green Street - it is in a properly zoned area that could accept their Lodge . It is only - it is in a block between Plain Street and Corn Street - so it is only a block and a half away . So I want to second Rick 's motion that there be effort made to sell the property that is there and find a piece of property in the neighborhood that is appro- priately zoned for the building . I also really have serious questions with Mr . Mark Keller ' s estimates and I question if he is a licensed realtor , where he got his license from in that his range of values in the property there are astound- ' ingly off range. The properties in our neighborhood have PAGE 81 BZA MINUTES - 9/8/86 been going up in value - properties that have sold recently on my street that were over forty thousand dollars and were not even in what you would call the top range of properties for the street . I would dare say that my own piece of property would sell well in excess of forty thousand dollars so I question his professional opinion and also his idea that there is declining values in the neighborhood . I think that there has been nothing but strengthening of the values of the pieces of property and the money still continues to go into those houses for upkeep and improvements. I also have questions and I second Rick 's doubts about just how much the members did to maintain the property. If they are really interested in becoming part of the neighborhood it seems like they would put some effort into maintaining some neighborly liaisons and at least maintain their property so our opinion of them was a little bit better . I question just what kind of a building they would put up or how well they would maintain it based on the history of how they have maintained the existing building . I don' t know if there is really anything else I have to say other than - Herman, to go back to an issue that you brought up and - I have the feeling that the Cooks would be forced out - I mean this would be like a little tooth coming in to bite off another chunk of our neighborhood . If there was any kind of limited use and especially anything that included allowance for them to pave and park in the back of the house. I think that would really devalue the Cook 's property as a residence and PAGE 82 BZA MINUTES - 9/8/86 really seriously hurt the use of their yard as intended in a residential area . CHAIRMAN TOMLAN: Any questions? Thank you. Anyone else who would like to speak in opposition? (no one) Does the Board have any questions of the appellant? MR. ORKIN: Are we allowed time for response? CHAIRMAN TOMLAN: No - that really is up - insofar as the rules of procedure - is really up to my discretion. And what I have essentially just done is ask the Board whether in fact there was any reason - or whether they felt satis- fied with your side of the argument - and I didn' t feel as though there was any tremendous rush for additional informa- tion - I think what they have to do is cogitate a bit . If, after we have got under discussion, we feel as though we'd like to come back to you for additional clarification, we' ll give you a holler . Stand by. MR. ORKIN: Okay . PAGE 83 BZA MINUTES - 9/8/86 DELIBERATION OF THE BOARD ON APPEAL NO. 1714 - 617 WEST GREEN STREET CHAIRMAN TOMLAN: Discussion? MR. WEAVER: Question. In the worksheet on this it requires this to be an Rab district - is it not so that part of the lot involved is R2? And if so , CHAIRMAN TOMLAN: You think it straddles. . . MR. WEAVER: Well I don' t know, SECRETARY HOARD: Well you carry the less restrictive use thirty feet into the more restrictive zone. The proposed use isn' t permitted in either zone so . . . MR. WEAVER: Well listening to concerns from the Cleveland Avenue orientation instead of a Green Street orientation leads me to wonder whether likewise it could be considered R2b and would automatically be allowed in the R3 - R2 use would automatically be allowed in the R3 - without any exception. I 'm trying to delve into the availability of this property and it 's potential use. And if demolition is one of the solutions, why this has to be a Green Street orientation and not a Cleveland Avenue orientation? SECRETARY HOARD: I 'm missing something , I 'm sorry . MR. WEAVER: We are not deep enough? CHAIRMAN TOMLAN: Not deep enough . MR. WEAVER: Okay . CHAIRMAN TOMLAN: Start again Charlie and try it . . . PAGE 84 BZA MINUTES - 9/8/86 MR. WEAVER: Well I 'm just saying that one hundred and thirty-three feet gets us to where - relative to Cleveland Avenue? MR. SIEVERDING: The depth of the lot relative to end of the R3 zone and the beginning of the R2 zone. SECRETARY HOARD: This is like the Valentine problem. The line is supposed to follow the rear lot line. MR. SIEVERDING: Property lines, right? MS. FARRELL: But it doesn' t . SECRETARY HOARD: And to tell you the truth , I didn' t even look at that . MR. WEAVER: Well . . . SECRETARY HOARD: I just assumed that it was, but even so I don' t know what the depth of the block is from Cleveland to Green but if it 's . . . MR. WEAVER: Regardless of the reasonable substitution of the rear of this lot - the south line of this lot is also the zoning line. CHAIRMAN TOMLAN: That 's reasonable . SECRETARY HOARD: That 's what this says - where possible it follows the lot lines. On Valentine we had a problem because it took off and didn' t seem to follow any . . . MR. SCHWAB: The point of your question Charlie was to ask ' what this might be used for - what this property might be used for? MR. WEAVER: Well certainly it can be used for any residen- tial use - R3 - through Rab - so R2 uses, of course. PAGE 85 BZA MINUTES - 9/8/86 MR. SIEVERDING: This work up sheet here assumes that the existing resident will be renovated for a Lodge rather than a new structure built on the site? SECRETARY HOARD: That was - at the time that this was drawn up - that was what I understood the proposal to be. MR. SIEVERDING: And what is intended is to actually build a new structure? SECRETARY HOARD: Which would conform. MR. SIEVERDING: In conformance with the district regula- tions. MR. WEAVER: Side lot for example . MR. SIEVERDING: Right . And I think - when it was asked that the new information presented for this particular hearing relative to the 1982 hearing, addresses this partic- ular issue - your need for an area variance. SECRETARY HOARD: That is a material change in the applica- tion. MR. ORKIN: That is correct . It is a material change, again - different structures is what we are proposing from the first plan and I think Tom might even have the plans in his file just so you can get an idea of the difference between the plans. MR. SIEVERDING: Right , but that is the only new information that you are presenting? MR. ORKIN: No we also did present the fact that I did cite to you the fact - by sworn affidavit - notwithstanding the , PAGE 86 BZA MINUTES - 9/8/86 statements here to the contrary - that the property was for sale from 1978 through 1982 and nothing came of it . MR. SIEVERDING: Between 1978 and 1982 - not subsequent though? MR. ORKIN: No I wouldn' t represent that it was, because it hasn' t been - which is the point of getting Mr . Keller 's statement . If it was readily salable as a residential property and conforming to the use. CHAIRMAN TOMLAN: (UNINTELLIGIBLE) MR. ORKIN: (UNINTELLIGIBLE) CHAIRMAN TOMLAN: I think it would be a good idea. MR. WEAVER: If we are looking at a hardship we have to arrive at the conclusion that a property that has been off the market for four years is not salable for its legal use? CHAIRMAN TOMLAN; That 's right . MR. SIEVERDING: Which is what I was trying to get at - if the only new information is a new site plan showing where a new structure is going to be located - that addresses the area variance - it doesn' t really address the use variance, I guess the letter from Gallagher was intended to address - to a certain extent I guess - the findings of fact - number one on the 1982 - which no evidence was given to demonstrate that the property had been on the market for sale - and in my mind that situation hasn' t changed - we are still at this point in 1986. CHAIRMAN TOMLAN: Well you have successfully arrived at the point of my question. I think Mr . Hines did them a PAGE 87 BZA MINUTES - 9/8/86 disservice in a sense, by not instructing them more specifi- cally about how best to achieve their end , if the present scenerio is in fact going to be the end . MR. SIEVERDING: Yes. I mean, new information along this line, in my mind , would have been evidence that the property had in fact been listed with realtors for sale and I think that would have been a substantial change relative to your request for a use variance. And we haven' t seen it , or at least I haven' t seen it . MR. SCHWAB: Well not to disagree with anything you've said , let me just ask , suppose it could be sold for seventy-five hundred or ten thousand dollars - that 's not that much money to do something else with , is that a hardship in itself, I mean you can sell it - I 'd buy it for a dollar , maybe, except for taxes, I probably wouldn' t but is that such a - I mean just the fact that it would sell - is that the key point or sell for a price that is worthwhile rather than having them do this? MR. SIEVERDING: I think for a price that it is really worthwhile so that other alternatives are open to them. I mean that hasn' t been touched we have somebody's opinion that the property that has a deteriorated structure on it is worth seventy-five hundred dollars. But I don' t think it has been put to the market test . It hasn' t been really offered for potential buyers to see whether in fact it is ' seventy-five hundred dollars or some bigger number . PAGE 88 BZA MINUTES - 9/8/86 CHAIRMAN TOMLAN: And there are other questions too . I mean, whenever you stop to look at the conditions for the use variance, whether the hardship created is unique or whether in fact in any way the other properties in the immediate vicinity are somehow different from this property insofar as to accept this property . Further discussion? MR. SCHWAB: I guess I 'm bothered - the testimony even at the other side tonight made that the lots were worth ten thousand dollars from a contractor . In the realm of people that we get up here testifying , they may know something . If they could get ten thousand dollars for the property , is that enough? Essentially the testimony is they' ll get somebody - Neighborhood Housing - or somebody who wants to buy this property and start over for essentially free. But is that taking these people's property . . . CHAIRMAN TOMLAN: At less than fair market value? For less than what? MR. SCHWAB: I mean, I guess - there is the question - they have this property that to them is worth nothing as a building - well it is worth ten thousand dollars as a building - as a house - because they can sell it for that . They are willing to invest their labor and what not - because they want to , as a Lodge, that would be worth considerably more. MS. FARRELL: Well then the question might be, is it possi- ble to buy another lot someplace else for the amount that PAGE 89 BZA MINUTES - 9/S/86 you could sell this lot for , in an area that would be zoned correctly? MR. SCHWAB: A block and a half up the street but is it going for in the neighborhood of ten thousand dollars? MS. FARRELL: I don' t know if that is available, I don' t know. CHAIRMAN TOMLAN: And is it a lot of the same size? Etc . etc . , I mean and is it as convenient to them, if they are going to walk to their Lodge. And a lot of other questions. MR. WEAVER: Well if you are talking about the owner 's ability to go from the present ownerships to acquiring a Lodge somewhere the zoning allows, we are not talking about the price of the lot less the cost of demolition - we are talking about that plus the equity that they will have to put into a new structure. There may be a lot of sweat equity as far as labor is concerned but there will be a substantial cost - they aren' t going to install a new water and sewer service and building materials - it will cost a substantial amount of money which won' t be there at all - it has to start from zero now. So what they have is a lot to meet their needs - what they have is a vacant lot after they 've gotten through the demolition cost . And now the question is will the value of that lot , which is no money in the bank to them, plus the cost that would be necessary to create a new lodge building could not - maybe have a former- ly used structure modified to meet their requirements. You know, the dollars here are not just seventy-five hundred or PAGE 90 BZA MINUTES - 9/8/86 ten thousand - what will that buy? That won' t buy you much of anything but neither does the present - the present property doesn' t get them anything either . It 's been there regardless of zoning - it would require a very substantial additional investment . I 'm not persuaded - our test is not what somebody's Will very generously intended but rather what the Zoning Ordinance allows this property to be used for and that it can' t be used for - it is not economically feasible to have it a legal use - a conforming use. I 'm moved by their desire and their need for a Lodge but I 'm also not turned loose to ignore the Zoning Ordinance in this particular site and the numbers that we are kicking around are - I am repeating myself - but they are missing a big X number that is going to be invested somewhere and isn' t invested in the current property. There is no equity there other than selling it as a lot , is the only way there is going to be any cash developed . A loan on the land isn' t going to get them very far . MR. SCHWAB: So to restate it , the test is whether , as currently zoned , there is any economically feasible use for them to do it . What you are saying Charlie, is they have essentially got no value in this lot , or minimal , seven- ty-five hundred dollars. They are going to have to invest a lot more in sweat equity here, so it is essentially, if someone would be willing to start - what I am hearing the opponents saying is that somebody would like to buy this property for practically nothing and possibly turn it into a PAGE 91 BZA MINUTES - 9/8/86 house. If we say that is possibly true, does that mean a use variance is automatically denied? MR. WEAVER: Sure. MS. FARRELL: Well I mean it would be a lot easier to show a need for a use variance if you could show that the house is really not marketable to be used for any allowed uses there. MR. SCHWAB: We have testimony it can be sold for seven- ty-five hundred dollars, from the appellants themselves. And I don' t hear him saying that that would be for anything - or did he say that? MR. SIEVERDING: Well we have testimony from the appellant relative to a letter that they have received saying that the property as presently configured , with the existing struc- ture on it is worth seventy-five hundred dollars. CHAIRMAN TOMLAN: That 's right . That 's somewhat different than. . . MR. SIEVERDING: That is somewhat different than actually placing it on the market and then seeing what , in fact , the market will pay for it . MR. SCHWAB: But I was using it - even accepting what they say - that is, they can sell it to somebody and presumably that is for somebody wanting to buy this house. MS. FARRELL: Or wanting the land to build something on, I don' t know. MR. SCHWAB: Something R3? MS. FARRELL: Yes. MR. WEAVER: R3 or R2. Either is possible on the property. PAGE 92 BZA MINUTES - 9/8/86 MR. SCHWAB: Either is possible on the property . MR. SIEVERDING: A quick calculation will show you that with an R3 configuration and that amount of square footage - you can six or seven units on the property. CHAIRMAN TOMLAN: What they should do is perhaps turn it into an apartment house, get the income and go to town someplace else. MR. SIEVERDING: Well the only question is, I guess, if the property were offered along those lines. MR. SCHWAB: I guess I 'm just - I 'm just trying to think - at what point do we want them to market - why do we want them to market this for a year? Is it to show us that they could get seventy-five hundred dollars for it? Well their own testimony says they think they can. I guess all that goes to show - shall we deny them right now because even they are saying they can get . . . MR. SIEVERDING: I think the whole rationale for that would be to show that there is no buyer out there who is willing to place that property in service according to the R3 zoning . MR. SCHWAB: I would say right now we couldn' t possibly right now accept that rationale because even their own testimony is suggesting otherwise. MR. SIEVERDING: Right . CHAIRMAN TOMLAN: You are even more conservative than he is then. MR. SCHWAB: Maybe. PAGE 93 BZA MINUTES - 9/8/86 MR. WEAVER: Well the demonstration that the property can' t be used for an R3 use, which is permitted , would require some demonstration of an attempt to do that . And for four years there has been no attempt to do anything . MR. SCHWAB: All right . MR. WEAVER: So here is no action toward attempting to enjoy the use of the property as zoned . SECRETARY HOARD: Getting back to what Herman said though about building something - I 'm trying to think of the last time somebody built a multiple dwelling on a main arterial in the City of Ithaca. There may be some but I sure can' t think of it . MR. SIEVERDING: I 'm not going to presume how the market is going to respond when that property is placed on the market . And I think that is what we need to find out in order to establish a hardship - that hasn' t been done. It seems to me we would need that kind of a demonstration - place the property on the market for some period of time and I 'm not going to specify what that period of time is, I think there are enough real estate agents around town who can tell you how long it takes, typically, to market a property before you determine that there just isn' t a market out there. But it seems to me that that is the test that this particular use variance is going to have to meet . I think it is made more effective by the fact that was pointed out that in 1982 as the first condition of the (unintelligible) and in PAGE 94 BZA MINUTES - 9/8/86 the interim the new information that we have gotten has to do with the area variance and not with the use variance . CHAIRMAN TOMLAN: Do I hear a motion? PAGE 95 92A MINUTES - 9/8/86 DECISION ON APPEAL NO. 1714 FOR 617 WEST GREEN STREET The Board of Zoning Appeals considered the request of Henry Highland Garnet Lodge No. 40 F&AM for a use variance to permit use of the property at 617 West Green Street for construction of a fraternal lodge. The decision of the Board was as follows: MR. SIEVERDING: I move that the Board deny the use variance requested in appeal number 1714. MR. WEAVER: I second the motion. FINDING OF FACT: 1 ) There is no new evidence presented that the subject property has been placed on the market to determine whether or not an R-3 use is feasible on that site. VOTE: 6 YES; O NO USE VARIANCE DENIED PAGE 96 I , BARBARA RUANE, DO CERTIFY THAT I took the minutes of the Board of Zoning Appeals, City of Ithaca, New York, in the matters of Appeals numbered 1678(a) 1712, 1713 and 1714 in the Hall of Justice, 120 E. Clinton Street, Ithaca, New York, that I have transcribed same, and the foregoing is a true copy of the transcript of the minutes of the meeting and the action taken of the Board of Zoning Appeals, City of Ithaca, New York on the above date, and the whole thereof to the best of my ability. Barbara Ruane Recording Secretary Sworn to before me this �0 day of 1986 Notary Public JEAN J. HANKINSON NOTARY PUBLIC, STATE OF NEW YORK No. 55-3660800 QUALIFIED IN TOMPKINS COUNT MY COMMISSION EXPIRES MARCH 30,19� 97