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HomeMy WebLinkAboutMN-BZA-1987-11-30 BOARD OF ZONING APPEALS CITY OF ITHACA NEW YORK COMMON COUNCIL CHAMBERS NOVEMBER 30 , 1987 TABLE OF CONTENTS PAGE APPEAL NO. 1803 Interpretation (Rishi Raj ) 4 122-154 Valentine Place it it Deliberations 65 it 1803a Decision 67 it 1803b Discussion 68 It 1803b Decision 84 It 1803c Decision 85 APPEAL NO. 1804 Interpretation (Frank Denner) 86 122-154 Valentine Place " Decision 89 APPEAL NO. 1805 Interpretation (Jane Pedersen) 90 No one present to present appeal APPEAL NO. 1806 Lula Tucker 91 307 South Plain street Decision 100 APPEAL NO. 1807 J. $ M. Petrillose (Held Over) 102 Homestead Road APPEAL NO. 1808 W. B. & M.C . Graham 101 208 North Meadow Street Decision 103 APPEAL NO. 1809 Ithaca Childcare Center 104 507-509 West Green Street it it Decision 107 APPEAL NO. 12-1-87 Advision Signs 108 614 South Meadow Street (TOPS) ff It Discussion 119 ff if Decision 126 over APPEAL NO. 1810 Interpretation (Sean Killeen) 127 122-154 Valentine Place if if Decision not to consider 135 CERTIFICATE OF RECORDING SECRETARY 136 BOARD OF ZONING APPEALS COMMON COUNCIL CHAMBERS CITY OF ITHACA NEW YORK NOVEMBER 30, 1987 CHAIRMAN TOMLAN: Good evening. I 'd like to call to order the November 30, 1987 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 Regulations. Members of the Board who are present this evening are: STEWART SCHWAB CHARLES WEAVER JOHN OAKLEY HELEN JOHNSON HERMAN SIEVERDING MICHAEL TOMLAN, CHAIRMAN OF THE BOARD THOMAS D. HOARD, SECRETARY TO THE BOARD, ZONING OFFICER & BUILDING COMMISSIONER BARBARA RUANE, RECORDING SECRETARY The Board is going to hear each case in the order listed in the Agendum. First we will hear from the appellant and then ask that he or she present the arguments for the case as succinctly as possible and be available to answer questions from members of the Board. We will then hear from those interested parties who are in support of the application, followed by those who are opposed to the application. I should note here that the Board considers "interested parties" to be persons who live or own property within BZA MINUTES 11/30/87 two hundred feet of the property in question and thus the Board will not hear testimony from persons who do not meet the definition of an "interested 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 consists of the application materials filed with the Building Department, the correspondence relating to the cases, as received by the Building Department, the Planning and Development Board's recommendations and findings, if 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 which are opposite me up here so that the comments can be picked up by the tape recorder and be heard by everyone in the room. Extraneous comments from the audience will not be recorded and will therefore not be considered by this 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 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 commenting 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. Tonight, thus far, we have five members instead of the usual six, I suppose, if there is anyone who wants to withdraw PAGE 1 BZA MINUTES 11/30/87 their case at this point, they can, they can simply defer it without prejudice until next month. But if that is the case, we would like to hear from you now. As I say, we have information which leads us to believe that Herman Sieverding, our sixth member, will be here momentarily, but obviously he is not here at the moment. Is there anyone who would like to withdraw? Are there any questions about our procedures? Yes. RISHI RAJ: I wish to ask a point of clarification. I used to live at 919 East State Street, at the time I made the appeal. But I do not live there now. . . CHAIRMAN TOMLAN: Well for the purposes of the hearing, I would suppose we would assume that you still do live there, if that's the case. Okay? Any other questions about our procedure? MR. WEAVER: Question. Does he own. . .? CHAIRMAN TOMLAN: Well, whether he owns or lives. . . MR. WEAVER: Clarification on that? CHAIRMAN TOMLAN: You've got a question on that. . . MR. WEAVER: Yes, a question of clarification. Does the last speaker own property there? CHAIRMAN TOMLAN: You owned the property on State Street? RISHI RAJ: Yes. CHAIRMAN TOMLAN: At that point, I believe so, yes. I was pretty sure that was the case. Are there any other questions about our procedure, out there or up here for that matter? [none] Then can we proceed to our first case? PAGE 2 BZA MINUTES 11/30/87 MS. JOHNSON; Is there any sense in moving the last case which deals with Valentine Place up and considering all four of them at once, or not? CHAIRMAN TOMLAN: Okay. Let me answer that briefly. The question for those of you who perhaps didn't hear it, is whether, in fact, we wouldn't want to reorder the Agendum somewhat to deal with the last case, which is also dealing with Valentine Place and bring it into line, more or less, with the ones in the beginning. During the course of the last month and over the course of the last several years, there have been any number of instances where people have made - well, have inquired as to whether, in fact, we ought to reorder the Agendum and I think we have been reasonably consistent, as far as I can tell, Helen, that we have not done anything to reorder, but rather hear things as they come in. I think I would like to be consistent with that. I know there are some people in the audience, in fact, who asked, even with respect to this hearing, that, for example, the lesser involved, shall we say, cases be heard first. The precedent, I think, if we began it, I think would be hard to limit at some point in the future, so I would rather just keep with the order in which we received them. That's yet another matter, yes. Alderman Killeen, in this case, representing himself, isn't here in any event, so he couldn't be moved up, I mean, it would be to his detriment and I would imagine there are others in the audience who, by virtue of our prior kind of direction, have taken the same cue, they are not going to appear until a little later. I hope that is not the case with our sixth PAGE 3 BZA MINUTES 11/30/87 Board member, though. Any other questions? Yes, come forward here just a second so we can hear this - everybody can hear it. VOICE IN THE AUDIENCE: In the case that I am interested in, there is a question that the case might be completely dismissed anyway, is that something they can decide. . . CHAIRMAN TOMLAN: Tom was about to announce that, yes. Appeal Number 1807 for 102 Homestead Road has - the Planning and Development Board has requested this Board to hold it over for another thirty days until such time as they can do a little fine tuning apparently. So, based on that and the fact that it is a special permit, and consistent with the - actually the law - with respect to special permits - we are not going to hear the case tonight. So those of you who are out there, waiting for that one, we'll see you next month, hopefully. Okay? There is another question in the back. Yes. Come forward because we can't hear you otherwise. VOICE IN THE AUDIENCE: I just wanted to know whether all the people who are listed here, making appeals, are by definition, interested parties? CHAIRMAN TOMLAN: Well we are going to have to deal with the question of whether they are interested parties or not, as we go through. That's the regular procedure. Further questions out there from members of the audience? [none] Well then perhaps we can proceed. SECRETARY HOARD: The first appeal Mr. Chairman, is Appeal Number 1803 for 122-154 Valentine Place: PAGE 4 BZA MINUTES 11/30/87 Appeal of Rishi Raj , owner of 919 East State Street, under Section 30. 58 of the Zoning Ordinance, for an interpretation of Section 30.23 (Interpretation of District Boundaries) , and Section 30.36A (Transition Regulations for lots in two districts) . The appellant is appealing the September 18, 1987 decision of the Building Commissioner, in which he issued a building permit to John Novarr for construction of fifty-one dwelling units at 122-154 Valentine Place. The appellant is also asking the Board of Zoning Appeals to review the Building Commissioner's determination that environmental review of the project was not required under the City's Environmental Quality Review Ordinance, and to review engineering questions involving the project. CHAIRMAN TOMLAN: You've got to come forward again and have a seat in this instance. Begin, if you would, by identifying yourself for the record. MR. RAJ: My name is Rishi Raj . I would like to begin by giving a very brief history of the development on Valentine Place. In 1984 John Novarr bought property which was Ithacare property adjacent to - excuse me - Ithaca College property - adjacent to Ithacare, and most of that property was - I have a map here, if you can all see - this is the division between Ithacare property and the property that John Novarr bought. He made a request for a variance to have this property - the majority of this property is zoned P-1. PAGE 5 BZA MINUTES 11/30/87 (unintelligible) zoned for R-3a use and that variance was denied. At that point he made an application for a building in the small area which could have been - still, it is not very clear - within the existing R-3a zone and he was granted a permit and there John Novarr did eventually build a rooming house - an apartment house, which is now there. At that time there were questions about transition zones - similar questions that we have here and the Building Commissioner at that time on this question of transition from R-3a to P-1 zoning was raised - he wrote, and I quote here, it was relatively easy to determine the boundary for the R-3a portion of Valentine Associates property, making a similar determination on the Ithacare property would admittedly be a different matter however - the line is not parallel to East State Street. Now we come to the present situation and on August 31st John Novarr made an application to build a much larger apartment complex - ninety-six units on the Ithacare property with supposedly permission from Ithacare to lease the property from them on a ninety-nine year basis. As far as we know there is no formal leasing agreement even today between Ithacare and John Novarr in written form. The same procedure was used to file for a building permit - that is to use the zoning map which you have over here - and the scale of this map is one inch to a thousand feet, I believe. There is also a map which gives one inch to five hundred feet and then he - well, before he had asked to build in this portion of R-3a zoning here - this time he asked for a much larger building on the Ithacare property which - part of it, I am sure, falls in the R-3a zone but how far it goes into the larger area is PAGE 6 BZA MINUTES 11/30/87 not very clear. The appeal we are making has three parts to it. First there is no written survey of this boundary between the R-3a zone and the P-1 zone. Tom Hoard has had to - through no fault of his - but he has had to take the zoning map with a rough scale - one inch to five hundred to a thousand feet and transfer that measurement onto the plans submitted by the builder or the developer where one inch is equal to a hundred feet - that is five hundred feet. He is making judgement here on the scale of ten, twelve feet on the basis of the zoning map which is on a very, very small scale. So we believe that - first the City should carry out a survey of the boundary for the R-3a zone before determining where that boundary formally lies and before making a decision as to where the property to be built should be located. The second point I would like to raise is that Tom Hoard has allowed an extra thirty feet extension into the less restrictive, or the more restrictive area - that is the P-1 zone and that is allowed provided that the less restrictive zoned area has a frontage on a city street. That was not the case in the previous permit, I don't believe, and it certainly doesn't appear to me to be the case in the present situation. The third point I would like to raise is the environmental form. - only the short environmental form was filled out and on that form, which you have I believe, if you look at the answers to various questions, for example, "Will the project have an impact on groundwater quality?, " the answer is "no", "Will the project have an impact (sic) on visual character of the community or scenic views or vistras know to be important to the community?", the answer is "no" - "Will the project result in traffic problems PAGE 7 BZA MINUTES 11/30/87 or cause a major effect to existing transportation systems?", the answer is "no" - "Will the project affect the existing community by directly causing a growth in permanent population of more than five percent over a one-year period or have a negative effect on the character of the community or neighborhood?" - the answer to that is "no". And clearly - common sense states to the citizens that the answers to all of these questions should have been "yes" and the Building Commissioner did not take that into consideration in making the decision to issue the building permit. Finally, I would like to find out the engineering questions - they are talking about an increase of about three hundred people in that area as a result of this new development and that kind of housing requires a lot of facilities - street facilities and so Tom Hoard asked the City Engineer, Bill Gray, his opinion about the proposed development. The application was submitted on August 31st, the application was granted on September 18th, Bill Gray's letter was not received until September 22nd and in that letter he raises several questions about the proposed development. In his words "everywhere I turn I seem to develop more questions. " I think the Building Commissioner should have - his first priority should have been to investigate what would be the engineering consequences of a development of this scale. CHAIRMAN TOMIAN: So that we are clear in this case and in the following cases and so that you are clear, because we are clear, by virtue of a memo given to us from the Assistant City Attorney, with respect to the matters before us in kind of general form but more specifically the environmental quality review ordinance - that PAGE 8 BZA MINUTES 11/30/87 isn't one of the things which this Board is empowered to consider. Now I understand what you are trying to say and I am willing, I think, in general, to entertain comments which may generically grow out of some of the concerns which are raised in the environmental impact process - that is, if you want to talk about the impact to the neighborhood and you want to talk about transportation - that's fine - that is, it is fine as long as you tie it back to the specific aspects of the Code which we are discussing - that is, the Zoning Ordinance - it should be clear that we are discussing - in this case you are asking for, essentially, there is a three-part appeal that you are making here, right? In the first instance you are talking about Sections that are dealing with permissive questions - that is, the interpretation - district boundaries, transition regulations - those are the two parts that we can deal with, okay? The third is a section that deals with environmental quality review ordinance and there is nothing in that ordinance that is really our jurisdiction in many ways. I hope I am clear there. MR. RAJ: Well, yes, I think you are clear but which body should the people go to in order to ask for enforcement of the environmental act? CHAIRMAN TOMLAN: Well - it certainly isn't us, and it seems like as though you tried City Council and there is no review body, as I understand it with that City Ordinance equivalent to what you have with advisory committees in other instances, am I correct? SECRETARY HOARD: Article 78. PAGE 9 BZA MINUTES 11/30/87 CHAIRMAN TOMLAN: Essentially you go to the Courts at that point, if you are going to proceed with this particular ordinance - this part of the law, okay? It is not something that is - what I read at the outset - you will remember when I read at the outset, the preamble to what we were doing, I said - we operate under the provisions of the Ithaca City Charter, the Ithaca Zoning Ordinance and the Ithaca Sign Ordinance - we didn't say anything about the environmental review ends of things - so we can't really consider that. . . MR. RAJ: What about questions which are related to zoning, such as increase in population. . . CHAIRMAN TOMLAN: Increase in population, density, things that impact on the neighborhood, traffic, fine - you can begin to question those, but only as you, again, have cited a specific cause here, that you are coming in to ask for interpretations about. I think you have to relate your issues to that and it is going to be a little difficult, I 'll be the first to admit, for you. I see hands up in the audience but unfortunately this isn't the time to consider them. You' ll get your chance as we come ahead in the future - please, if you would be quiet for the moment. You understand what I am saying? I 'm trying to get the ground rules out for everybody concerned. MR. RAJ: That's fine. I have no experience with this so I 'm listening to you. CHAIRMAN TOMLAN: Now, at this point then, what I am saying is that the environmental form filling out - that part of your questioning and the engineering questions, we are not going to consider at any PAGE 10 BZA MINUTES 11/30/87 length here - in any capacity. We want specifically, to focus upon the first two - the a and b, if you will, of your appeal - that is - the notion of interpretation and the notion of transition regulations, okay? That's what we are going to deal with. Now, members of the Board, questions? We've got a whole pile of paperwork work here, so it will take a while for the Board to get through it all. Questions from members of the Board? [Herman Sieverding arrived at this point in the meeting. ] MR. SIEVERDING: Let me start - excuse me for having missed your presentation but it seems to me in reading the 1984 transcript that covered the Valentine 2 project, there seems to have been a fairly exhaustive discussion of the methodology that was used by the Building Commissioner to determine the boundaries of this particular R-3 zone and what is it about that methodology that you think is wrong or what is the basis, I guess, for your request for an interpretation, given that fairly exhaustive discussion and very specific, as I recall, the motion that was passed - resolution of that. MR. RAJ: Well the resolution was passed and they are reconsidered and they are reconsidered [sic] and I think in my view of thinking - my common sense view, it seems to me out of the ordinary to make a judgement on a transition on the scale of ten feet using the zoning map. The issue still remains (unintelligible) the Supreme Court again and again. . . I would like the body here to deliberate over the same issue again. MR. OAKLEY: While I think we are all somewhat unsatisfied with the zoning map as a document, one of the problems that I have had is PAGE 11 BZA MINUTES 11/30/87 that I don't quite understand what there is to survey or how do you go about surveying the line that we are talking about - as opposed to sealing the map. MR. RAJ: Well we have to know where that line is - how many feet it is from the center of State Street, for example. There is no written description - for all - most of the properties in zoning, there is a little description - in most cases the zoning transitions fall on natural boundaries like roads or streets or railroad lines and the zoning is made according to those natural boundaries when the zoning law was passed - in this case however the R-3a/P-1 boundary falls on raw land - in this case, I believe, therefore, there should be a written description of that transition of saying where that boundary is - in order to make a judgement as to where this building should sit. MR. OAKLEY: I 'm inclined to agree with you, my problem is, how do you survey without the written description? Normally a surveyor goes a certain distance from, say the center. . . MR. RAJ: Well the surveyor has to - I would think he has to go back and look at the minutes of the meeting when the Zoning Ordinance was passed and come to some professional judgement as to where that should be - I mean, it cannot remain ad hoc and we keep on making judgements on the basis of a very small scale map. MR. SIEVERDING: Wasn't that written record of the boundaries of the R-3 zone established in 1984 by virtue of the discussion by analyzing those five different alternatives that are available under Section 30. 3 and resulting in a fairly detailed description of the boundary of that area, I think the motion that was PAGE 12 BZA MINUTES 11/30/87 unanimously passed by this Board in 1984 - I am stating specifically that the furthest line is five hundred and fifty feet from the State Street right-of-way and goes on to describe the other boundaries in pretty specific terms. . . MR. RAJ: Well I asked Tom Hoard how he determined - in his office - how he determined the transition - he said he read it off the zoning map. Is that right? SECRETARY HOARD: Measured it off the zoning map, yes. MR. SIEVERDING: And the buildings that are now in question are within the five hundred and fifty feet? SECRETARY HOARD: Yes. Maybe, Mr. Chairman, I could save people some time and cover at how I arrived at some of these things because we are going around and around. . as I told you, I used the same method this time that I used last time, because that is the method that the Board of Zoning Appeals said was approved. As long as that is their interpretation, that's what I am bound to follow until they change their interpretation. I can't ask them for an interpretation to change an interpretation, if you follow what I mean. What I did, I followed the same manner, I marked the lines that appear to run parallel to East State Street as were scaled from the zoning map - the corporation line which was adopted or approved last time, was assumed to be the line that runs north/south - the lines perpendicular to East State Street were located by scaling along the lines that were established parallel to East State Street from South Quarry Street, because scaling from Valentine Place is unreliable because it is curved on some maps and straight on other maps. The remaining line that forms the notch - PAGE 13 BZA MINUTES 11/30/87 as you will recall there is a little notch - extension of that line runs parallel to Mitchell Street and its inpoints were scaled from the other lines which were located first. Now, as I said before, it is difficult to figure these out, but this works - the configuration that we come up with matches the configuration on the zoning map. It is also a very conservative way of figuring it. The zoning map - you asked how they came about with the zoning map - the zoning map was based on the land use plan which shows the line actually closer to the gorge. This shows a little road that goes across the Valentine property [pointing to the land use plan map] but there is the little road - the macadam road that connected the old hospital with the nurses quarters. And this high density zone extends right down to very close to the water. So what I used was a pretty conservative - in terms of limiting how much R-3 zone was there. I used the new and old tax maps because the old tax maps showed Woodcock Street going a hundred feet into this property. The site plans - was the T.G. Miller survey of the Ithacare/Novarr properties and as I said, this matches up - this determination that I made matches up with the zoning map. Shortly after the Valentine 3 case that was before this Board, this Board wrote a long memo to the Common Council saying there are these problems with the Zoning Ordinance, including the map. Nothing every happened with it - we have the same map - those lines were never changed - never any written descriptions of where it should be - so I have to rely on what happened last time and what was approved. PAGE 14 BZA MINUTES 11/30/87 MR. RAJ: Well I 'm not saying anything against you, you did your best considering what was available to you. . . SECRETARY HOARD: It was an interpretation that was made by this Board that is binding on all parties - it is binding on the developer, it is binding on me, it is binding on the neighborhood. Nobody challenged that in Court last time - they challenged another issue, but they didn't challenge this one. MR. RAJ: But my appeal is, I think, to the Board here today is that they should rethink this and ask for a description of the boundaries. SECRETARY HOARD: I agree with you, there should be written descriptions on all the zoning boundaries. . . MR. RAJ: Well especially here because there isn't a natural boundary of the R-3a existing zone and in most cases there are natural boundaries - roads, streams, etc. - but here it is not a City block, it is next to a gorge and it's vital to the point of view of maintaining the green space in the City - from many points of view - it is vital in the present situation that we should know exactly where that transition ends because that is going to affect a large (unintelligible) up there - it is not. . . CHAIRMAN TOMLAN: To clarify, you are not particularly dissatified with the way in which Tom did things, but, more particularly, you would like to see a survey done in such a way as to verify. . . MR. RAJ: Certainly - verify to find out where they are. I don't think that drawing a line on a zoning map with the width of a pencil amounts to thirty feet - is a way to verify where that boundary should be. PAGE 15 BZA MINUTES 11/30/87 CHAIRMAN TOMIAN: Why don't we let - Tom, you had a little bit more to say with respect to the procedure? SECRETARY HOARD: Well, it goes beyond just the procedure - it goes beyond - what has happened down there - the general plan for the City called for a much higher density than will be there after this development is completed and also historically there was a very high density down there when Ithaca College owned all of that property there were three hundred and three students living down at the end of Valentine Place. . . MR. RAJ: Yes but that was many years ago but. . . SECRETARY HOARD: My point is that Ithaca College was down there for many years, there has been two other. . . MR. RAJ: Well that is not the issue here. . . SECRETARY HOARD: Well there have been three other projects here that brought a lot of students. . . . MR. RAJ: But that is not the issue. . . the issue here is that it is next to the gorge and we are building next to the gorge - we are much more aware and sensitive to the green space that we have in the City today than we were fifteen, twenty years ago and it is the new environment that we have today - the new consciousness we have in the environment. I think the game plan is different today - it should be different today than it was then and in today's climate we should seek to have exactly defined where the gorge begins, where the gorge ends, where P-1 begins, where R-3 ends. . . MR. SCHWAB: I guess I 'm not following this fully. It seems to me that Tom, after you have now done your scaling off on this map and drawn a line onto the tax map, it is described. It is described PAGE 16 BZA MINUTES 11/30/87 exactly on these other maps - you know - the question is whether there should be another line and it seems to me - to follow up on John Oakley's question, I don't see how a surveyor really could do it at all on looking at whether these lines - where these lines are. These lines are on a map which is what we have to go by. You say you would like to have written descriptions and someone should describe it - the description, unfortunately, is this line, which has not changed since the last fifteen or twenty years - well since the 1974 Ordinance, I guess. So I guess I am just left unclear how this line can be described or where this line is - can be described any better than it is right now. You know, it would be nice to change it but it seems to me that has to be Common Council to change - or to describe it in words. What we are given is this map. . . MR. RAJ: Well is that a Common Council decision or is that this Board's decision? MR. SCHWAB: Well the Zoning Ordinance, as I understand it, is basically this map as far as where the lines are. And then there is these five methods of figuring out how this map transfers to reality. But you sort of tick them off, streets, parallel streets, and the railroad track and what not. . . those don't fit, the only one that seems to fit is the third one which is scale it off parallel to the road that seems to be parallel. It seems to me basically that was done, I take it, as accurately as that method can do it and I just don't see another one that will move those lines. We can't move the lines. . . PAGE 17 BZA MINUTES 11/30/87 MR. RAJ: No the lines are determined by - when political action is taken to define the lines, okay, they say, okay, this drop in the City is R-2. Now when the decision was taken to divide the P-1 and the R-3 area, I mean, there must have been some political sentiment behind that - in making that determination and that led to - maybe the person who was drawing up the map - he just drew it like that - was that accurate or not accurate? MR. SCHWAB: I think that political decision led to this line on the map. There is nothing else - the writer gave us no written description other than this line on the map and a few general criteria. . . MR. RAJ: You say Common Council accepted that and therefore it is. . . MR. SCHWAB: Adopted that, yes. They did a lot of talking and they certainly drew the line on the map and Common Council adopted it with the five criteria for figuring out how this translates out to reality and I 'm not yet hearing from you an argument except to revisit the last one where it was unanimously decided that this third criteria, out of the five, was in this circumstance, the best way to go. Which is finding the street that is parallel and measuring the distance that the scale suggests to measure. CHAIRMAN TOMIAN: Do you understand Stewart's questions and problems there? MR. RAJ: Yes, I. . . MR. SCHWAB: What I wish had happened, after this last Valentine one, Common Council had done something besides talk. And what they had to do was change the zoning map in some way. Otherwise it PAGE 18 BZA MINUTES 11/30/87 seems to me - I mean, we can reconsider it - I think the one person it is not binding on - to make a determination - is this Board - I think that we can reconsider it but it seems to me we need a reason why the last time's consideration was not the most accurate transcription of these lines - all we have to (unintelligible) onto the reality. MR. RAJ: What you just said a moment ago - you wish Common Council had done something about this - vagueness, if you like. . . MR. SCHWAB: Let me just - sorry to interrupt - but I don't think - after the last Valentine - I don't think it was vague anymore. The Building Commissioner drew the lines on the map, people knew where these lines on the map - he used the same lines this time - at that point it was no longer vague - they should have, at that point, changed it, either by saying that wasn't - I mean, you could go back and say it wasn't our initial description, or, even if it was, we want to change it. In other words three years ago we ended the vagueness with saying alright these lines seem reasonable to us and at that point, it seems to me, it should have been changed. CHAIRMAN TOMLAN: Charlie you had some questions? MR. WEAVER: Not necessarily. You referred to political decisions and I agree with you that a political decision needs to be made and another one was made. We had enough fuss over the last building permit - the last activity on Valentine Place so that it came to the attention of Common Council and as a result of that hearing, this Board interpreted the Code in agreement with lines that were prepared by the Building Commissioner so at that time I agree that that line became part of the official map by our action. And there PAGE 19 BZA MINUTES 11/30/87 was a political decision made and that political was inaction by the Common Council - that's political just as well as action. Their inaction certainly spoke very loudly that they accepted that line - they have had all of this time to change it if there is a preferred reading or a better place for the line and something that would meet the neighborhood and the general plans of requirements. If they were available, goodness knows, it is not a lack of time on the part of Common Council, so I assume they approve of it. They could do nothing but, by being inactive as long as they have. MR. RAJ: Well let me make an off the record comment here. What we have here is - we have R-3a next to a highly environment sensitive area in the City - next to the gorge. There is no body, as you have said - within the City where we can go and ask them to consider the environmental impact of having an R-3a zone so close to a P-1 zone, to the gorge, okay? And what are the people to do, I mean there is no committee, there is no body that can make a decision from the point of view of the environmental (unintelligible) . . . you can make the very technical decisions regards to whether the Zoning Ordinance is being followed or not followed - where do we go for a situation like this where there is a lot of construction going on next to an environmental sensitive area? CHAIRMAN TOMLAN: Well I think we mentioned. . . MR. RAJ: We have to go to the Courts. . CHAIRMAN TOMLAN: You have to go to the Court - that's really the only way in which you can proceed. Either that or you go back to Common Council and ask for a change in the Ordinance. . . PAGE 20 BZA MINUTES 11/30/87 MR. SIEVERDING: Or you ask Common Council to designate who is going to be responsible for seeing that the environmental quality review ordinance is enforced. SECRETARY HOARD: . . . last month. MR. SIEVERDING: And what was their decision? SECRETARY HOARD: They made me responsible. MR. SIEVERDING: They made you responsible. It seems that, based on what everybody is telling us, the only way to get this Board involved with that, is that if Common Council specifically designates us as lead agency in certain instances to be responsible for seeing that that Ordinance is enforced. MR. RAJ: What about the issue of the change in the neighborhood character in terms of traffic and population, density and so on, is that within the jurisdiction of this Board? You said it is but. . . CHAIRMAN TOMLAN: If there were a variance being granted of one sort or another, certainly it would be an issue, very much. MR. RAJ: I see, but here there is no variance needed. . . CHAIRMAN TOMLAN: There is no variance needed it really is tangential to our authority in this instance. We feel, in a sense, I mean, we would like to be helpful but quite frankly, for us to make a decision of whatever kind, in your favor, we can't, I mean, there would be no basis for it, based on the power granted us. Just for your own information, in the packet of materials that was sent along to the Board members is a memo that Tom and I drafted in 1985 as a result of the last go-around and it is two pages, single spaced, and it leads off with - zoning map - much too small and it goes on from there with all the questions and comments that had PAGE 21 BZA MINUTES 11/30/87 come to our attention the last time this came up. We have not been able to get any action from Common Council on these matters - plain and simple. So, while we may. . . MR. RAJ: That is our frustration too. CHAIRMAN TOMLAN: Well - but you see the point? Now that's with respect to - and I want to stay clear with respect to the proceeding here - your comments at this point have been primarily directed and our questions have been directed to the first part - that is the part a, I would like to call it, the interpretation of the district boundary. Perhaps you would want to say a word more or perhaps the Board has questions with respect to the second part which are the transition regulations for lots in two districts. Questions or comments with respect to this. Mr. Raj , do you want to say anything more about the transition regulations? MR. RAJ: Well the transition regulations state that an additional thiry feet can be granted if the less restricted zone borders on a City street. And Woodcock Street is not a City street as far as we know, at this point. The street is under question and the map given with the Municipal Code is very simply schematic - it shows the City streets and here is your property and here is the extra thirty feet allowed to you in the more restricted zone. I don't see that kind of a map applying to the present case because the property does not border on Valentine Place. CHAIRMAN TOMLAN: Would you like to have the Building Commissioner respond to that directly - as to how he came about with that? MR. RAJ: Please. PAGE 22 BZA MINUTES 11/30/87 SECRETARY HOARD: I 've been in this job eleven years now and I don't like to make the same mistake twice. What happened was that a number of years ago I told someone they couldn't do something because they didn't have frontage on a City street and the BZA upheld my decision - it was on a private street. The appellant took the case to Court and won - the City appealed it and lost again. The Court decision was that if the street looks like a street - I am paraphrasing now - but if it has all the characteristics of a street in that fire trucks can get in and out, the public can get in and out, it is open to the public, then we have to consider it a City street for zoning purposes. MR. RAJ; And which street did you consider . . . SECRETARY HOARD: Woodcock Street extends a hundred feet into this property - into the Ithacare property - it is a mapped street. There is no street there now, but it is a mapped street. CHAIRMAN TOMLAN: You see, by virtue of that previous Court decision, and again, members of the Board have a copy of that decision, it seems as though it is appropriate to consider it by virtue of the Court's action. . . SECRETARY HOARD: And again, this was something that I considered a bit of a loophole in the Zoning Ordinance - that someone could do something on a non-city street because I was concerned about someone parking their car in the middle of the street and the City didn't have the right to go in there and ticket that car and have it towed to keep it from blocking the fire access and so that was - a memo was sent to the Common Council then, asking them to fix this loophole. That was about 1982 that this happened. PAGE 23 BZA MINUTES 11/30/87 MR. SCHWAB: What about the fact that this isn't really a street at all except on - this is a paper street not a private street? SECRETARY HOARD: Yes but it will be developed as a street and it will have frontage as a street. MR. SCHWAB: Well how do we know that? The Court case - we saw since 1904 actual street, and the Court decision said that a street that since 1904 has looked like a street, is effectively a City street. At least there is a possible difference that this street is a paper street. SECRETARY HOARD: Well sure, he won't get a certificate or anything until that street is there and developed to meet the standards that were set forth by the Fire Department and the City Engineer. He has to put it in before he can start construction. . . CHAIRMAN TOMLAN: John, do you want to say something? MR. OAKLEY: Yes, I guess I have two questions, one is the Court decision actually refers to 30.25, which refers to a public right-of-way - which, it seems to me, is clear that this is a public right-of-way and 30.36 refers to a street, admittedly not a City street but a street, which is the transition regulation which determines the thirty foot. So the real question that I have is can anyone build a street on a mapped City street or does the City have - and to what extent does Novarr follow the street? SECRETARY HOARD: What Public Works has said is that if they are opening it to serve a single property then the City would rather not get involved in financing of the street - development. But if it is to serve more than one property owner, then the City has to get involved and it has to go through the whole process of. . . . PAGE 24 BZA MINUTES 11/30/87 MR. OAKLEY: In other words the City cannot say we preserve the right-of-way but choose not to allow the street to be developed. SECRETARY HOARD: Well, I 'm not sure - the property owner in this case, Ithacare, has the right to open that street, by matter of his deed. MR. OAKLEY: Okay. MR. SIEVERDING: And once that street is developed, it is then turned over to the City and the City maintains. . . SECRETARY HOARD: No, it becomes a private street. . . MR. SIEVERDING: Built on a public right-of-way. . . SECRETARY HOARD: Yes. MR. SIEVERDING: And the City does own the right-of-way called Woodcock Street? SECRETARY HOARD: Yes. MR. RAJ: There are a lot of questions surrounding Woodcock Street - it is not that simple - that the City can go in and develop it - we don't even know where it sits. Mary Heron is getting a survey done (unintelligible) back yard. She is fighting the Deans because she thinks Gene Dean's garage sits on a City street, not her back yard - not her garden and so there are a lot of questions there and the Court case - I think Novarr - he did his (unintelligible) in use there and if it is private I guess the Court can say, okay, it is already there, it has been used (unintelligible) fine, but here we are not talking about, we are talking about a ghost street, it isn't there, it may never be there and to assume that it is there and then on that basis allow the extra thirty feet, I think it is going too far - stretching the. . . PAGE 25 BZA MINUTES 11/30/87 SECRETARY HOARD: But if we deny a property owner the use of that street then we've got some others who have got problems. MR. RAJ: Well you have to take another stand - the stand is either Mary Heron's lawn over there and her garden or it is Gene Dean's. . . SECRETARY HOARD: I have not heard this about the dispute between the neighbors and where the line is. . . MR. RAJ: Right. . . CHAIRMAN TOMLAN: Well, that's not part of the case in any event. MR. RAJ: No, that's not part of the case, right, but there is no street there - there is a lot of history to it and a lot of anecdotes to it, okay? And I think it is really an unresolved question that it is a City street - I don't think that can be assumed pro formo. . . CHAIRMAN TOMLAN: Herman, you have a question? MR. SIEVERDING: Does the City have a legal description of the driveway? And would that show up in abstracts of. . . SECRETARY HOARD: I think the owners have a better description than the City does. MR. SIEVERDING: But you are assuming that there is in fact a legal description of this right-of-way? SECRETARY HOARD: Yes. MR. SCHWAB: If the City has a right-of-way fronting on this property, that means the property owner has the unilateral right to have it developed? Getting back to the question, if it is the City's right-of-way, why can't the City decide whether to open it or not? PAGE 26 BZA MINUTES 11/30/87 SECRETARY HOARD: Well this one is a little bit peculiar because this was County. The County hospital was there - it was County property and the County had all the rights which were then passed to the City when it was a City hospital or maybe it was visa versa and the rights have been passed down - Ithacare now has the rights, all the rights that the County hospital had to use Woodcock Street. MR. SCHWAB: These aren't necessarily the rights of any private landowner. . . SECRETARY HOARD: The City Attorney looked at this stuff. . . MR. SCHWAB: It is derivative of the County rights. SECRETARY HOARD: Yes, I guess. MR. SCHWAB: Is it clear that the hundred feet would be enough for what the developer wants - I mean, you've got to go thirty feet back from the street - it is unclear to me, in my mind, exactly where Woodcock is. . . SECRETARY HOARD: It is in the upper right hand corner of that map. CHAIRMAN TOMLAN: You've got your map? MR. OAKLEY: My map comes in. . . SECRETARY HOARD: Woodcock goes along that boundary. . . MR. OAKLEY: Woodcock goes along here. . . MS. JOHNSON: It deadends at the end of. . . MR. RAJ: It deadends. . . it is this here [pointing to map] I think, goes from here to here. MR. OAKLEY: So then it ceases to be Woodcock Street. . . or does Ithacare - I mean, the right-of-way must go further. . . SECRETARY HOARD: It is eighty feet from Valentine Place to this property line and then it goes another hundred feet in. . . PAGE 27 BZA MINUTES 11/30/87 MR. OAKLEY: A hundred feet in, following the path that - the parking lot path or. . . SECRETARY HOARD: It follows the property line. MR. OAKLEY: Okay. MR. RAJ: There is also the question of frontage on this property. This big property doesn't have frontage on a City street and it has little access. . on Woodcock Street. SECRETARY HOARD: Well that is still one big parcel - it is still the Ithacare parcel - it has frontage over on Ferris. . . MR. SCHWAB: Does the transition or the extra thirty feet have to be perpendicular to the City street? SECRETARY HOARD: Yes. MR. SCHWAB: This City street goes a hundred feet into the property - this Woodcock Street - a hundred feet into the property? Do any of the buildings go more than that into the property? SECRETARY HOARD: Yes. MR. SCHWAB: And do you get only the thirty feet back perpendicular to this? SECRETARY HOARD: No, it just says it has to have frontage - it doesn't say how much. MR. OAKLEY: Okay, but the map does suggest perpendicularity rather than - presuming that zoning rules don't generally change in mid-block, although if you look at Section C on front yard transitions, you see that in fact, to some degree the zoning of the more restricted portion - on a side by side arrangement - poaches into the less restricted district in that a business district - building in a business district or a building which crosses over PAGE 28 BZA MINUTES 11/30/87 from a residential district into a business district, although it doesn't say that it is business the whole way. But, in fact, the business has to have reached accord with the area requirements - the building has to accord the area requirements of the more restricted district. I don't see that Section C makes it clear to me whether the building is subject to the rules of the more or the less restricted district - it doesn't specify that. That building that is set back of the residential building can be a business - sorry, I 'm not making myself completely clear. . . CHAIRMAN TOMLAN: Try again. MR. OAKLEY: Okay. Section C makes it rather clear that to some degree the restrictions of the more restrictive district encroach onto the restrictions of the less restrictive district. Now my first impression - I 'm looking at this picture - was that the building - the footprint of which I thought I was looking at - was naturally a business building but as I read Section C it is not at all clear to me that the building is either business or residential. It is quite possible that that could be a residential building poaching into a business district and that there is no inputation really in that statement or in that picture - that the business district in any way poaches into the residential district - it is only an indication that the restrictions of the residential district poach into the business district and the thirty foot rule is drawn in such a way that it clearly goes - the more commonly, current situation - that it clearly goes back from the road not simply out from the lot line - which, if that were the case, that PAGE 29 BZA MINUTES 11/30/87 would complicate the drawing of that thirty foot line and I 'm not - I could make an argument the other way but let's see what happens. SECRETARY HOARD: Well, I don't know if you are interested in the past practice - I guess, in interpretations but. . . MR. OAKLEY: I would assume that is the very life blood of this Board. SECERETARY HOARD: That this is a representation but we have always just drawn a line parallel to and thirty feet from, to show the extension into the more restrictive zone because - I can't think of an example that fits this - it is usually a place where the lines are going every which way - the property lines, and the zoning lines, and we just have to - just like this one - we just have to interpret that. . . MR. SCHWAB: So, but this street would only - under this other view - only have to go one foot onto the property? SECRETARY HOARD: It doesn't say. . . MR. SCHWAB: There is no (unintelligible) that goes a hundred feet or any reason for it to go a hundred feet - or any reason that he develop it that far. MR. SIEVERDING: I have a question. If you were to take a look at the lot and at the right-of-way called Woodcock Street, what sort of frontage does the property have? SECRETARY HOARD: On Woodcock? MR. SIEVERDING: Yes. SECRETARY HOARD: I think it is a hundred feet - it is either eighty or a hundred. . . PAGE 30 BZA MINUTES 11/30/87 MR. SIEVERDING: Up front - on the right-of-way. Whereas the requirement in R-3 for the lot is forty feet of frontage at the street - so I think even if one were to try to attach a definition to what frontage is, it would seem that this lot would meet that requirement. CHAIRMAN TOMLAN: Have you been with us all this time? We don't mean to lose you, it is just a matter of trying to figure out our way as we go through. MR. RAJ: Well I think you are losing sight of the question of whether or not - or what is the status of Woodcock Street. You know, I mean it is not there, we must not forget that, it's not a street right now. CHAIRMAN TOMLAN: We'll have to deal with the question of what is a street and what isn't a street, and I would note that that is another omission from the list of definitions which start the Zoning ordinance. "Street" is not defined. MR. WEAVER: Well we might also ask for the tax receipts on the right-of-way. CHAIRMAN TOMLAN: Well that is one way to do it, certainly. Any further questions of this appellant? We've kept him up here an hour already. Do you have any more that you would like to add? I think we understand clearly your position and we appreciate that and what we would like to do at this point is proceed and see if there is anyone else both for and against and go on with the hearing. MR. RAJ: Yes. PAGE 31 BZA MINUTES 11/30/87 CHAIRMAN TOMLAN: Fine. Thank you. Is there anyone else who would like to speak in favor of this particular interpretation? That is, on the side of the appellant. Come forward. MS. PEDERSEN: My name is Jane Pederson, I 'm not within two hundred feet but I 'm the third appellant and my appeal is the same as this so I thought it might be useful - I am appealing on behalf of our neighboring Civic Association, as the chairman of their zoning and planning committee. . . CHAIRMAN TOMLAN: All right, fine. In line with my descretion, I 'll allow your comment at this point, but. . . MR. WEAVER: I have a question. If she is going to present her appeal, I have a question before she does. CHAIRMAN TOMLAN; Well that's my question which follows, Charles, you just anticipated. . . MS. PEDERSEN: My appeal is identical to Rishi's. I would like the opportunity to elaborate a comment now, so I needn't go through a repetition of that. . . CHAIRMAN TOMLAN: In other words. . . MR. SIEVERDING: Could we deal with both of them at the same time? MS. PEDERSEN: That's what I would hope. MR. WEAVER: I 'd just as soon not. CHAIRMAN TOMLAN: I 'd just as soon not, as well. What I would like Jane, if you are going to comment here, to supplement - I mean, your appeal is almost identical, I don't think the xerox machine made any mistakes - in fact, it really is the same. . . MS. PEDERSEN: I have one or two things in addition but they are probably not things this Board is concerned with. . . PAGE 32 BZA MINUTES 11/30/87 CHAIRMAN TOMLAN; That's right. Now, if that is the case, if I am willing to go ahead with this, I 'd appreciate your agreement that you would withdraw your appeal later on. . . MS. PEDERSEN: Well I think, just simply for the record, I 'd like to have the two appeals - couldn't we record it that they were both there. . . CHAIRMAN TOMLAN: Well, both appeals - once you've made the appeal, we are bound, in essence, to make some sort of response to that. . . MS. PEDERSEN: And it's fine with me that that response simply be the response to this one simply be extended to be the response to mine because it would be redundant, certainly, to go through it all again. I think it would be useful, just for the record to show both. CHAIRMAN TOMLAN: All right, so you are agreed that regardless of how this goes, we are simply going to say "ditto" when it comes time to doing anything on yours. MS. PEDERSEN: That is true, as a matter of fact, I am going to try and make another meeting before you even get to my appeal. CHAIRMAN TOMLAN: Charles, further questions? MR. WEAVER: Not to confuse things, but I want to make sure that this in an "interested person" under our rules. CHAIRMAN TOMLAN: I 'm aware of that - it is certainly stretching it. MS. PEDERSEN: May I comment on that though? I was interested enough that the Building Commissioner - his office accepted my fifteen dollars to record my appeal and haven't notified me since I PAGE 33 BZA MINUTES 11/30/87 did that over a month ago, to the contrary that I was not an interested person. MR. WEAVER: Well maybe I can get your fifteen bucks back. MS. PEDERSEN: Well I asked him before if I could have it back and he said no. CHAIRMAN TOMI,AN: No, I think the point of the matter, more specifically, would be that it is not Tom's job, essentially, to tell you that - it is really ours. MS. PEDERSEN: Again, there was no criteria given to me at the time that I asked to appeal, nor were there any forms as to who could or could not appeal or any indication. MR. SCHWAB: The last thing that you mentioned, what is this committee position again? MS. PEDERSEN: I am chairman of the zoning and planning committee for the Bryant Park Civic Association and we are the Civic Association that represents the area which borders - actually across the street from the Valentine Place - along this area. CHAIRMAN TOMLAN: So with that - as admittedly thin connection - please go ahead. MS. PEDERSEN: Okay. Just a side comment, I think that certainly a somewhat more integrated view of our City and the attachment all of these areas have on one another, would make that perhaps a little thicker than you are allowing me to be - perhaps thick description might apply here in some of these cases. It seems to me that the really salient point is whether it is the extension of this project into the P-1 zone. We were told at the beginning when we first started questioning it that it did extend - although how far it PAGE 34 BZA MINUTES 11/30/87 extended has not been very clearly pinned down and again that is obviously a weakness of the tools that are at our and the Building Commissioner's disposal without a proper survey. But apparently it does extend - this was certainly the premise on which it was first granted and given - it does extend into the P-1 area. If it does extend (unintelligible) it seems to me the legal establishment of Woodcock is crucial and as of the week before last the City Attorney, at the Public Works committee said that the legal status of Woodcock Street was still up in the air and they had not been able to track it down - it was hazy - and my source for this was the Planning Board's liaison to the Board of Public Works, Joe Daley - as of last week. I also refer you to William Grey, the City Engineer's letter to the Building Commissioner, which I believe you have in your packet, which states that it is my understanding - attached is a copy of one of the old City property maps showing Woodcock Street between 112 and 106 Valentine Place. It is my understanding that this would require the abandonment and sale at public auction of the City's right-of-way or the actual opening of the street. In either case it would require an action of Council and the Board of Public Works. Again, we have a building permit issued - it appears - on the status of the street that would make this permit acceptable is - as of two weeks ago - by our City Attorney that legal status is not clear - if it is a City street, it would take action of one or more City bodies, in fact, to open it - that has not occurred and it might not occur. There seems to be a number of very indeterminate factors floating around here surrounding this whole street which seems to be crucial to the PAGE 35 BZA MINUTES 11/30/87 ruling that this is indeed a legitimate use of this area and it seems to me that that's really a place to focus this appeal. The environmental assessment form, I understood you earlier to say, is not your area - I think there are a number of very important questions to be raised there and we may want to try to introduce them to the appropriate Board. But in terms of this other appeal, I think that - how, in the face of the City Attorney's statement, and you may want to verify that - but that legal status is not clear and in the face of the City Engineer's opinion, unless there are more authoritative contrary opinions, that it would require these actions to open it - in fact, or to sell it off to make it useful - it seems to me that the permit is in question and that it should be suspended until those things can be, in fact, clarified and put into place - appropriately for this use. CHAIRMAN TOMLAN: Questions from members of the Board? Your comments I take it, are basically dealing with the transition regulations? MS. PEDERSEN: I 'm sorry, yes they are. CHAIRMAN TOMLAN: That's basically . . . MS. PEDERSEN: With the fact that in order to extend into the P-1 - incidentally, I 'm sorry - John Oakley is it? You seem to be talking about Section C and I think it is Section A. MR. OAKLEY: I was referring to Section C. MS. PEDERSEN: Okay, I didn't understand that - I think A was our reference. CHAIRMAN TOMLAN: A is your reference. PAGE 36 BZA MINUTES 11/30/87 MR. OAKLEY: I was just drawing on the description at C in such a way as to clarify as best we could what was going on. Or cloud it. CHAIRMAN TOMLAN: Or cloud it, as the case may be. MS. PEDERSEN: I don't think it needs that - we seem to have an abundance of that. CHAIRMAN TOMLAN: Any questions? MR. WEAVER: Well if we are going to consider this, I 'd like right now, while the appellant/non-appellant is with us to try to identify what we mean by a city street and whether this right-of-way, as I understand it, which may or may not meet the terms of the Ordinance - whether private development of this right-of-way would require action by anyone. And so the issue is here and we've discussed it in a round-about way but when we are talking - when the appellant uses the fact that to dedicate it as a city street or to open it as a city street is quite a different thing, in my mind, from having this public right-of-way, which may be a misuse of the term - or an abuse of the term - opened by a private developer. I believe that there are several other similar things that are not city streets that are dedicated public right-of-ways - there are other arrangements also, but there are some that are public right-of-ways and at some point, by some action of, I assume, the legislative body. So, I hope that before we go any further that we at least discuss, what do you mean? And which phrase did you use and did that mean some restricted definition or are we just going to throw it around and never have that discussed? PAGE 37 BZA MINUTES 11/30/87 CHAIRMAN TOMLAN: I 'd like to raise a point of order as to whether in fact that discussion is best taken - should take place now or whether we ought not to proceed collecting testimony that we need and then proceed. . . MR. WEAVER: Well I 'm obviously confused over what we are doing here with a "non-interested" party. . . CHAIRMAN TOMLAN: Well we have decreed that she is an "interested" party for the sake of this particular appeal, so that we have somewhat bonafide - you can ask questions, if you would like further clarification. . . MR. WEAVER: No, except the Chairman jumped over some of the requirements of identifying an "interested" person - I realize that you have the power but the way to get there is to use the means of trying to identify. . . CHAIRMAN TOMLAN: I know Jane Pedersen, I have everything here to identify her - Jane do you want to say something for the record? MR. WEAVER: What I'm saying is that she said she is a member of a committee or chairman of a committee of an organization that represents people in another part of the city that happens to be near this and also in our rules it says that such person shall bring some evidence of their association and their right to speak for that association. These are in our rules but if you want to jump by I 'll. . . MS. PEDERSEN: I would have been happy to have been made acquainted with those rules ahead of time - I'm sorry I wasn't because I would certainly have provided you with that. PAGE 38 BZA MINUTES 11/30/87 MR. WEAVER: I would just as soon have them in the record for other purposes. MS. PEDERSEN: I 'd be glad to furnish those if you would like, posthumously so to speak. Would you like me to send it to you afterwards? CHAIRMAN TOMLAN: Further questions from members of the Board? MR. SIEVERDING: I was just wondering whether we aren't talking about mechanical issue here - the Ordinance says that as long as you have frontage on the street - and Woodcock is a street - it is a right-of-way that is owned by the City and I doubt that it could be used as a street (unintelligible) mechanical question rather than one that faults the issuance of the building permit. MS. PEDERSEN: Basically, as I understand it, I think most zoning issues are mechanical questions essentially, but nonetheless they govern the issuance of a building permit and it seems to me perfectly legitimate to raise that - the fact that the City - or the status of the street - the certainty of that street existing in a form which will conform to the requirements of the ordinance has yet to be demonstrated, okay? It is, at the moment, only a possibility and apparently one might even term it a vague possibility depending on whom one talks to at different points and various people (unintelligible) . . MR. SIEVERDING: Yes, exactly. Our research. . . MS. PEDERSEN: My understanding is that one doesn't grant - you know - the Ordinances operate on the givens not on the possibilities for the future. It seems to me on general questions raised. PAGE 39 BZA MINUTES 11/30/87 MR. SIEVERDING: I agree and I think the point is being raised - it is a legal right-of-way and it is a paper street and it seems to satisfy the requirements of the Ordinance that a particular piece of property have frontage on the street in order to gain the rights of that particular zone. MS. PEDERSEN: According to the City Engineer's letter, to exercise this right-of-way - if it is not a City street it would require the abandonment and sale at public auction, of the City's right-of-way. That requires certain public hearings and certain City actions and that would certainly seem to predetermine those actions. Or the actual opening of the public right-of way which would still require a public hearing and notice and certain actions. So, again, I think this is a question raised to what extent one might presuppose those actions. MR. SIEVERDING: The rule, Tom, if the right-of-way is used to gain access to one particular piece of property then that property owner has the right to develop that street? SECRETARY HOARD: It depends on what rights he has by deed. In this case the property owner has the rights to use that Woodcock Street right-of-way. MR. SIEVERDING: By deed? SECRETARY HOARD: By deed. MS. PEDERSEN: Could I ask you, Tom, what Ralph Nash is referring to when he says that the legal status of that street and that right-of-way are still uncertain? SECRETARY HOARD: I think some people have said that the City doesn't own that street and I don't think that is even relevant, PAGE 40 BZA MINUTES 11/30/87 whether the City owns it or not. In fact, I think that if the City doesn't own Woodcock Street, it probably doesn't own Valentine Place either and I think that is kind of a bad argument for the neighborhood to make because then the City is obliged to stop its services on that street. MS. PEDERSEN: But if the City does own it, would it not have to sell at public auction - its right-of-way or its abandonment of it to allow it to be a part of this? SECRETARY HOARD: No. MS. PEDERSEN: Then the City Engineer's letter is incorrect? SECRETARY HOARD: Did you talk to the City Engineer about this? MS. PEDERSEN: No, I 'm quoting from his letter. SECRETARY HOARD: Okay. That memo was written in response to the first proposal and the date on it - looks like it was - I did receive it after the first building permit was issued but Mr. Gray did see the revised proposal and did approve the revised proposal, did send me a revised letter but this one was dated afterwards because he dictated it. . . MS. PEDERSEN: I guess I 'm not clear why his comments on the status of Woodcock Street would be affected by an earlier or later proposal for the project. . . SECRETARY HOARD: Well because afterwards we had a meeting involving all the principals in the case - all the departments that were involved and I had by that time, a copy of the deed which showed that the developer had the right to Woodcock Street. MS. PEDERSEN: Well, I again. . . refer to the statement at the Board of - the Planning Board. . . PAGE 41 BZA MINUTES 11/30/87 SECRETARY HOARD: I don't think that concerns what we are talking about here. If it turns out that he can't open that street, that changes the whole thing. . . MS. PEDERSEN: But if, in fact, the status of the street is such that it would require a public hearing to open it and some action by some City organization, then again, I don't see how you can assume that it is all predetermined. SECRETARY HOARD: Well, I didn't hear what Mr. Nash was talking about but I did talk with him today about this very thing and he didn't see a problem with it. So, and I would have thought. . . MS. PEDERSEN: Is Joe Daley here? No he is not. SECRETARY HOARD: So I don't know in what context they were talking about at the Board of Public Works meeting and I don't know what Mr. Daley. . . MS. PEDERSEN: They were concerned about whether they would have a City street to be responsible for or how it would. . . or whether there was a real street there or whether it could be opened or not. SECRETARY HOARD: I think that was the real question - whether the City wants to be responsible for developing a street. I don't think the City does - from my conversations with the Department of Public Works, before the permit was issued. MS. PEDERSEN: Well, I hear what you are saying - I guess that I heard very emphatically at the Planning Board meeting - from the liaison to the Board of Public Works that it had seemed clear at that time that Mr. Nash was communicating much more certainty about it. There are certainly other sorts of uncertainty circling around - City Government does not seem to be speaking with one voice on PAGE 42 BZA MINUTES 11/30/87 how clear the status of the street is and it may be that it is in reference to other things, it seems to me it still should be clarified and the truth found out. CHAIRMAN TOMLAN: Shall we bring this to a closure pretty quickly? Do you have any questions over on that side? MR. SIEVERDING: My only point I guess - the discussions that you were - this is what Gray is referring to in the September 23rd memo when he says that whatever concerns he made on September 22 regarding that street access have been resolved in discussions with you and the City Attorney. MS. PEDERSEN: The access or is he referring to then the Fire Chief's requirements for fire exits or is he referring to the opening - I don't know, I 'm simply asking, Herman. MR. OAKLEY: Well he is certainly referring site access to the old hospital grounds for emergency vehicles. . . MR. SIEVERDING: But that is additional site, actually, the main point is site access and the matter was reviewed with you and the City Attorney to satisfy my concerns. Additional site access relating now to emergency vehicles was provided from the old hospital. . . MS. PEDERSON: (unintelligible) qualifies. . . MR. WEAVER: Not only that but just talking as if you didn't know anything except emergency access, the existing routes, including the Ithacare property, for emergency purposes, would still be inadequate whether or not the addition of access through the street under discussion. So it isn't - no matter what he meant - I 'm sure PAGE 43 BZA MINUTES 11/30/87 that lacking access through Woodcock the total project would have inadequate access. MS. PEDERSON: Okay. The question in my mind (unintelligible) and I think the question of frontage and I think the frontage on Quarry Street - is Ithacare not fronted along this street? SECRETARY HOARD: Ithacare is in the P-1 district. MS. PEDERSEN: And the frontage is required on the lesser district. . . SECRETARY HOARD: Yes, as far as the R-3 . The R-3 is only on the Woodcock Street. MS. PEDERSEN: Yes, that's another point which the Woodcock becomes crucial and the access (unintelligible) Quarry would not qualify. Thank you very much for hearing me before my turn and I ' ll leave you to your deliberations and go off to another gathering, okay? CHAIRMAN TOMLAN: Is there anyone else who would like to speak in favor? Come forward if you would. VOICE: Could I just raise a procedural issue? CHAIRMAN TOMLAN: Not from back there you can't. You'll have to come up here. You are? MR. RABINOWITZ: My name is Joel Rabinowitz and I don't believe I qualify as an interested party under the definition of the two hundred feet so I don't want to speak to the issues but simply to procedural questions relevant to who is and who is not an interested party that was raised with Mrs. Pedersen. CHAIRMAN TOMLAN: Fine. MR. RABINOWITZ: It is my recollection that the Bryant Park Civic Association includes the territory of Valentine Place and maybe Tom PAGE 44 BZA MINUTES 11/30/87 Hoard could verify that or not, but as I recall their logo - their map draws the boundaries as such - it doesn't only come down East State Street but also includes Valentine Place. People on Valentine Place have received information from the Bryant Park Civic Association so it is not another part of the City, it is right there, including the area that we are talking about and second of all, I simply want to say that it seems to me that the question of who is and who is not an interested party - and the procedures relevant to that should be provided to people when they are making appeals on an issue - on any issue to be discussed by the Board, and ruled upon by the Board of Zoning Appeals and the person to whom they come is the Building Commissioner. So it seems to me - while I heard it stated that the Building Commissioner - it was not his job to talk with people about that, it seems to me that the fact that his role as a public servant, he should provide people with all the relevant information to their making an appeal. They shouldn't be put in a position of making an appeal and then told, well you wasted your fifteen dollars because you technically are not an interested party. CHAIRMAN TOMLAN: Well let me respond to that briefly. When I mentioned earlier that one pays fifteen dollars in such a way as to appear before us, it is essentially - not that I 'm trying to hide anything under a bushel or particularly penalize anybody for not knowing anything - we've had to establish certain rules and regulations lest we have to hear from the entire County on every case or certainly from everybody in the City and at times, had we not had a two hundred foot rule, we would really be in serious PAGE 45 BZA MINUTES 11/30/87 difficulty. I can remember a couple of cases being here much longer than I hope to be here tonight. MR. RABINOWITZ: I completely understand that. CHAIRMAN TOMLAN: All right. The question of what is and what isn't Bryant Park Civic Association, is a different question from what Bryant Park was geographically, historically, virtue of that today, so that the notion of ones paying ones dues to a Civic Association really does not given one the right, necessarily, to represent that Civic Association outside the boundaries of what was once Bryant Park, okay? MR. RABINOWITZ: I wasn't talking about what was once Bryant Park, I was talking about what is, currently, the definition of the Bryant Park Civic Association and where they themselves consider. . . CHAIRMAN TOMLAN: Civic Association mind you, is different than Bryant Park with respect to the geographical boundaries - we are talking about two hundred feet with respect to the boundary. The question is to where you live or work - those were the ground rules. MR. RABINOWITZ: Well I 'm just simply underscoring your own decision that Mrs. Pedersen qualifies as an interested party on the basis of. . . CHAIRMAN TOMLAN: Well you will notice that I had a bit of discussion with my friendly Board member over here, Charles, about that point and bent the rule in such a way as to incorporate, and I think if you look over my decisions on those particular matters, I 've been more generous than my preceeding chairman has on that particular issue. PAGE 46 BZA MINUTES 11/30/87 MR. RABINOWITZ: I do appreciate that but I simply wanted to make the record clear - the Association includes the territory that we are talking about. CHAIRMAN TOMLAN: I understand. Thank you Joel. MR. WEAVER: Mr. Chairman, before he leaves, there is another thing that has been raised twice here - that the Building Commissioner should have told me if I couldn't be an appellant here or the Building Commissioner should have told me I couldn't speak. The rule that I am referring to is a rule of this Board and as you see, and has been demonstrated tonight, the Chairman is the final person to decide, so there is no way that the Building Commissioner could possibly know what his decision may be on any case, so he is in no position to give you good advice. He could say, you are beyond two hundred feet and you shouldn't come, and prevent you from making an appeal, which might be effentive. MR. RABINOWITZ: I realize that - I accept that. My point simply is that in the experience of the people who have made these appeals they come to - where do they go to put forward the appeals - who do they pay to have the appeal on record - the Building Commissioner's office, and as such, he is in a position - being a public servant who is supposed to assist the public in working within the rules and working properly within the rules and if information is withheld. . . CHAIRMAN TOMLAN: Let me just close with a comment on this. I will ask the Building Commissioner to amend the form in such a way as to notify the people who fill it out aware of that as best they can. MR. RABINOWITZ: I appreciate that, I think that is appropriate. PAGE 47 BZA MINUTES 11/30/87 CHAIRMAN TOMLAN: Okay, thanks. Is there anyone else who would like to speak? Come forward again, you will have to identify yourself up here next to the microphone. Please begin by identifying yourself. MS. ZINDER: I 'm Chris Zinder. Frank Denner of 104 Valentine Place has an appeal in - I 'm not sure if this is the time for. . . CHAIRMAN TOMLAN: This is not the time for comment on that appeal. MS. ZINDER: Okay. CHAIRMAN TOMLAN: Is there anyone else who would like to speak in favor? Come forward please. MS. ZINDER: Could I just say that it is relating to the very issue that you are talking about. CHAIRMAN TOMLAN: I understand, Chris, but we are not dealing with that appeal now. We have to deal with the appeal in front of us. You better begin with an identification and. . . MR. BOOTH: My name is Dick Booth and I 'm one of the two alderpersons from the Third Ward and so I - and since I live at 510 Mitchell Street and represent the Third Ward, I guess you have an initial question whether or not you want me to speak. CHAIRMAN TOMLAN: And the answer in my case will be "no" . And I don't think there is any member of the Board that is going to completely disagree with me but - it is clear at this point Richard that - much as you might want to say something - I don't think we can hear it. MR. BOOTH: All right. I 'd like to just point out that he doesn't have a salary, so Common Council can't fire him. Thank you. PAGE 48 BZA MINUTES 11/30/87 CHAIRMAN TOMLAN: Is there anyone else who would like to speak in favor? MR. RAJ: I 'd like to come back and make a comment. CHAIRMAN TOMLAN: Not at this time. At this point we are going to see what the other side has to say and then perhaps we may consider anyone else who would like to make a rebuttal and I give you a strong emphasis on the may. Is there anyone else who would like to speak in favor? [no one] Then is there anyone who would like to speak in opposition? Come forward please. MR. SHAPIRO: My name is Marty Shapiro, I 'm an attorney in the City of Ithaca, I represent John Novarr who, the Board knows, has the building permit that is being called into question. Now Mr. Novarr is present here tonight if any questions come up with respect to the project itself, I am sure he might be able to answer your questions. I wasn't going to take much of the Board's time, and I won't, but I do want to respond to a few things that have been said by the applicants. Before I do, procedurally, I guess I have to object on the record, understanding the Chair's position, in permitting non-interested parties to appear before the Board on two appeals that are being considered, specifically Jane Pedersen who appeared before the Board and gave some testimony - allegedly representing the Bryant Park Civic Association - you have no evidence of that whatsoever - even if she did, there is a question in law as to whether a Civic Association is an aggrieved party to any determination of the Building Commissioner. Also Mr. Rabinowitz - the point of order that he raised were irrelevant to the specifics of the appeal - I would suggest that he really should PAGE 49 BZA MINUTES 11/30/87 not have been making his case during the appeals. A few things - first of all there has been a lot said as far as misstatements go about when things happened and when things didn't happen back in 1984, 1983, 1985 - I think the Board has before it a fairly comprehensive record and undoubtedly has gone through that, so I won't belabor the point except to say that three years ago we had the last Valentine Place - I think three years ago today - the City Board of Zoning Appeals decided to follow the Building Commissioner's determination with respect to the development of the borders of the R-3 zone in that case and it spilled over - not just as far as methodology - but a careful review of the transcript indicates that the line of the R-3 area went westward to the old City Corporation line. The old City Corporation line has been well established as an extension of Eddy Street so it is not very difficult for anybody, the Building Commissioner or anybody else, to figure out where most of that R-3/P-1 line is. The Building Commissioner has done that, he did it three years ago - I don't see that there should be too much question there. I point out also that three years ago something came up that I had forgotten - that perhaps we have lost track of again - and that is that there is a larger map - in fact the map in the Zoning Ordinance is a shot down version of that larger map. The larger map has, of course, greater scale and is easier to scale off. That was brought out three years ago and, of course, should have been brought out again tonight. Mr. Raj misstated the number of units, although that is irrelevant to this particular proceeding, but I point out for the record, that we are not talking about three hundred people there, we are talking PAGE 50 BZA MINUTES 11/30/87 about approximately two hundred people, and it might even be a little less than that. MR. SCHWAB: Two hundred people? MR. SHAPIRO: People. Two hundred people. I think the Board has already, at least, given an indication that the questions of the Engineer's letter are irrelevant, also they are irrelevant because they have been superseded among other reasons, and questions of SEQR are irrelevant here tonight. I do want to talk a little bit about question of Woodcock Street. As has been stated, the Ithacare has rights - legal rights-of-way across what is now Woodcock Street and can develop those rights at any time, and will, and I think that's fairly well settled as far as the City goes. MR. SCHWAB: What do you mean by will? You said, will develop. MR. SHAPIRO: Will develop their rights as far as the home rule plan for that area - it is necessary to give access to a particular parking lot there and that's already shown on some of the plans. So it is all part and parcel and perhaps was not well understood or received but the Certificate of Occupancy probably would not be issued, if I understood correctly, unless there is an access there, so the developer will have to develop that, he has the right to develop that. I point out also that Woodcock is a mapped City street, it has been for years and years and years, if anybody has any question about that all they have to do is walk down to the City Engineer's office and there you will find Woodcock Street on the City Engineer's maps where it has been for years and years and years - on the tax map, etc. There has been some reference made to an older case - the so-called Westbourne Lane case. I have some PAGE 51 BZA MINUTES 11/30/87 passing attachment to that case in that I was the City Attorney at the time and the City lost that case. I didn't handle it myself but I did go over all the papers. Of course there are differences and there are differences with respect to any street - let me point out some things about Westbourne Lane. Westbourne Lane itself, the City made this argument, my office made this argument - very forcefully - is nothing more than a driveway - that's about what it is. That is what it was then and I believe it remains that way today. It has no curbs. The pavement, such as it was, was broken and crumbling, there was question of ability for access, there was even a question of whether it was even public - as a matter of fact it looked pretty private - it was not, never has been a mapped City street. Woodcock Street on the other hand is a mapped City street and furthermore, I am told, it has a curb cut onto Valentine Place. There is a curb right there and the curb makes a little corner right into what will be developed as Woodcock Street. I think the Board was right in saying that any questions between the neighbors there, as to what they might have appropriated in what is the mapped bed of Woodcock Street, is at best a question left to them and certainly not this Board. If they have any questions, those will have to be addressed at the appropriate time and at the appropriate place. There has been some misunderstanding I think about the question about both opening the street. Westbourne Lane was never opened, not by the City of Ithaca. . . still isn't. . . MR. SCHWAB: Let me ask you this, I am now quoting from this Supreme Court Opinion - Judge Bryant's District - Evidence was produced at the Board's hearing that it has been opened to all PAGE 52 BZA MINUTES 11/30/87 vehicular traffic for at least the present century - the City of Ithaca collects garbage, Village of Cayuga Heights plows this now, (unintelligible) paved pot holes - that's a little different from this street. MR. SHAPIRO: Oh, I 'm not saying there aren't differences, what I am saying though is that that "street" is not much more than a driveway, in fact, the Village of Cayuga Heights went across the City Municipal boundary to plow the street and the fact that it was "open" simply meant that nobody was stopping anybody from going across there. Sure there are differences but the point I am making here was that when we questioned, and we did question - the City of Ithaca questioned very strenuously, whether or not Westbourne Lane was a "street" within the meaning of the City Zoning Ordinance and the Judge's decision was very clear - it is a street. He chose to say that the street - because of some incidents of street, namely garbage pickup by the City of Ithaca - and that happens, by the way, very often on non-city streets - there are other non-city streets in the City of Ithaca - a few of them - but within the meaning of the Zoning Ordinance - the Judge said that was a City street, excuse me - he said that was a street. I think the same is true with respect to Woodcock Street - even more so, with the curb cut, with it being mapped as a City street, and with the owner of the property through which it runs, having legal rights to use that street for ingress and egress. Also, I.note a couple of matters about that street - a long time ago, and I imagine it was long before the memory of any of us present here, I believe, that was a little road leading into some property in back there. If you take PAGE 53 BZA MINUTES 11/30/87 a look at the tax parcel numbers there - this map that was attached to one of the appeals, this little piece here - which has now been assembled with some other pieces - would be landlocked - completely landlocked without the access from Woodcock Street and that, of course, can't happen under law. So there are legal rights of necessity to that particular little parcel. That is also born out by the fact that it's a mapped City street and there are legal rights in the deed. MR. SCHWAB: Is that piece now a separate piece? MR. SHAPIRO: No, it was assembled very recently in the last couple years or so to a larger piece. MR. SIEVERDING: What are the legal rights? You referred to the owner having legal rights. . . MR. SHAPIRO: Well Mr. Hoard referred to them also. I think it has been established to the City's satisfaction, and to the satisfaction of the City Attorney that there are legal rights for ingress and egress to Valentine Place, across what is now - or what we commonly refer to as the mapped bed of Woodcock Street. That has been established and accepted. So I think the question here is not whether the City is going to open the street because, in fact, the City never opened the street known as Westbourne Lane and, in fact, there is no requirement in the Zoning Ordinance for the City to open a street - only that there is a street. And here there is a street and it will be more of a street in a very short period of time. MR. SCHWAB: I frankly don't see how you can say there is a street now, that it would satisfy this Ordinance. Because it seems to me PAGE 54 BZA MINUTES 11/30/87 that the only purpose for requiring a street is so that there will be some access - you know, the restrictive zone - streets going to the less restrictive zone allowing you to impede into the more restrictive zone. No purpose of that, that I could tell, to satisfy its just being a paper street. MR. SHAPIRO: Well there will be, in fact, a physical access provided there and refer to Mr. Hoard and he is nodding his head in assent, that before a Certificate of Occupancy is issued, there will be physical access there. MR. SCHWAB: And you think - you agree with that, that that should be a requirement for the C.O. 's issuance - that there be a full physical street or otherwise it does not meet the Zoning Ordinance? MR. SHAPIRO: I don't think I have to agree or disagree, Mr. Hoard has stated so and believe me, when we have to deal with the banks and financing, we have to satisfy Mr. Hoard to get a C.O. MR. SCHWAB: Going back to what that means there, would you think it would be satisfied if you opened the street up one foot? MR. SHAPIRO: One foot wide? CHAIRMAN TOMLAN: Deep. MR. SCHWAB: One foot deep into your property. MR. SHAPIRO: I guess I 'm not sure exactly what you are asking here. Are you asking whether the transition regulation would apply there? MR. SCHWAB: That's right, be satisfied. MR. SHAPIRO: As a matter of fact, if you take a look at the transition regulation, it doesn't require that the street come into the property an inch - it only requires that it abut the property PAGE 55 BZA MINUTES 11/30/87 and this abuts the property, in fact, it goes a hundred feet into the property. MR. SCHWAB: Well, tell me how you see that, let me get back to it here. MR. SHAPIRO: The last portion of 30. 36, subdivision A, it says there, provided the lot has frontage on a street in the less restricted district - it says "frontage on", it doesn't say if the street comes into. . . MR. SCHWAB: Well frontage on a street - so you are saying, this Woodcock would not have to be opened at all for this transition regulation. . . MR. SHAPIRO: I 'm saying that if the R-3 district abuts that street, has frontage on it, that that would satisfy the transition regulation. But I 'm going further than that, here we are saying, and it is clear from the maps and to the Building Commissioner, that Woodcock Street, in fact, comes into the property, so to speak, by a hundred feet - so there is a hundred feet of frontage plus another fifty feet on the end of it, so there is a hundred and fifty feet of frontage. MR. SCHWAB: But I did ask you earlier, is the street now there to satisfy this Ordinance and I heard you say - you were noncommittal, but you said Tom Hoard is not going to issue a C.O. unless it actually exists. MR. SHAPIRO: No, I don't think that was exactly your question but if your question is exactly that, is a street there sufficient to satisfy the Ordinance, my opinion is yes, given the Westbourne Lane case. Before the Westbourne Lane case, I was arguing the other PAGE 56 BZA MINUTES 11/30/87 side of that - we kind of had our law books handed to us on that one - it was quite a surprise. But that's what happened in the Westbourne Lane case - something that had something physically there, but not what you would consider to be a street in any stretch of the imagination and not, in fact, even a "legal" street, just a private drive. SECRETARY HOARD: Stu, the purpose of that requirement is to get access to the less restrictive zone, not crossing the more restrictive zone and that purpose is served here - they are coming in from Woodcock, right in to the R-3 zone, they are not crossing the P-1 zone to get to that R-3 zone. MR. SCHWAB: That's true, if Woodcock exists. I mean, it isn't a real street. SECRETARY HOARD: Well it has to, they have to develop that, that's part of the permit, like any other permit where people have to provide fire access and things like that, it is part of the permit. If they don't provide that road - that street in there, then it's a violation of the permit and they can't occupy the building. MR. SCHWAB: And will it be required to be developed the full one hundred feet, plus the eighty-three? SECRETARY HOARD: Well it is being required that they provide access all the way to the farthest limit of the buildings, so that the fire vehicles can go the full length of the development. MR. SCHWAB: Beyond what is now. . . SECRETARY HOARD: Beyond what is now Woodcock. MR. OAKLEY: I want to make a point of clarification just because a fair number of terms have been quoted here tonight and I don't want PAGE 57 BZA MINUTES 11/30/87 to get accused of admitting things that we do not admit and so forth. It seems to me that the Whitman decision refers to rights-of-way and there appears to be a right-of-way here and that the (unintelligible) transition rule refers to a street - not a City street, but street. I realize that the Ordinance does not define street but I think that - while I am quite willing to concede that there is a right-of-way there because that is something on paper, and so forth, I am a little hesitant to concede on the basis of the Whitman decision that a piece of land which looks like I would have trouble crossing in a four wheel drive vehicle should be called a street at this point. I 'm not denying that there is potential for developing a street there but I would just like to at least make clear that we are talking in the Whitman decision about a public right-of-way - about a right-of-way, in the transition regulations that we are talking about a street, the definition of which is rather vague and that further there is a lot of reference to City streets which are not, in fact, brought up in any of the legal material. MR. SHAPIRO: I don't mean to be argumentative (unintelligible) but the Westbourne Lane decision involved a question of whether or not the "street frontage" whether it be right-of-way frontage or not conformed with the City Zoning Ordinance with respect to definition of street frontage for the purposes of building what they wanted to build there - it was all the same question - different words were used but it was all the same question. I am referring to the City Zoning Ordinance and whether or not it had frontage on a street. PAGE 58 BZA MINUTES 11/30/87 In that case the Judge said, yes that's a good enough street for us but the Zoning Ordinance wouldn't allow it. CHAIRMAN TOMLAN: Could we proceed. . . MR. OAKLEY: You may proceed - I just wanted to make my point so that it was clear. (unintelligible) CHAIRMAN TOMLAN: That's fine. MR. SHAPIRO: That's the bottom line with respect to the current appeals. CHAIRMAN TOMLAN: Is there any question from members of the Board with respect to what has been presented? [none] Thank you. Is there anyone else who would like to speak in opposition? [NOTE: The next five lines refer to a book that Mr. Shapiro left on the witness table] MR. OAKLEY: We have a lost property issue here. CHAIRMAN TOMLAN: We have a lost property issue? MR. OAKLEY: Somebody had left. . . How to Teach Adults. . . CHAIRMAN TOMLAN: How to Teach Adults. . . MR. SIEVERDING: There's a message. . . CHAIRMAN TOMLAN: Do members of the Board feel that there is any reason to consider rebuttal - any kind of rebuttal at this point? I mean we've been into this case for two hours. MR. SCHWAB: I have one point which is that I think how the board treats this first case is going to have a very large precedential effect for the others. CHAIRMAN TOMLAN: It should. MR. SCHWAB: And so that the other - particularly Chris Zinder - who said that she wanted to comment on another one, I think will feel PAGE 59 BZA MINUTES 11/30/87 badly if we sort of rubber stamp that one without allowing her to speak while it is still relatively open. CHAIRMAN TOMLAN: How do the rest of the members of the Board feel about that? You've heard my decisions on both sides of the question - in one case I 've allowed somebody and got castigated for it and the other side, I 've not permitted someone and got castigated for it. . . MR. SCHWAB: As I understand it, she could be an interested party for this case. I don't think she said where she lived but she can comment on the next one. . . MR. OAKLEY: I would assume if she can comment on the issues in this case she ought to be allowed to speak and that wouldn't deprive her of her right to speak on the next one. . . CHAIRMAN TOMLAN: Well only if she is within two hundred feet and demonstrates some connection with this particular. . . MR. OAKLEY: If she does not demonstrate any connection then she can't testify on any of the cases, is that correct? CHAIRMAN TOMLAN: That is correct. Is that your wish? Do I give that more or less my consensus? Is there anyone opposed to that mode of operation. Charles? MR. SIEVERDING: So what you are saying, we are going to oppose (unintelligible) . . . CHAIRMAN TOMLAN: Well what I want to find out first is what her connection with this particular instance is, I 'm going to be consistent, quite frankly, and if we can't find, either two hundred feet or her being somehow or another associated with the particular first case in hand, I 'm going to simply hold the line on that and PAGE 60 BZA MINUTES 11/30/87 wait until such time as it is appropriate for her to speak, if ever. All right, does that seem reasonable? Chris, will you have a seat please, and identify yourself for the record? We will begin with a question or two just in trying to get things straight. MS. ZINDER: Yes, I 'm Chris Zinder. I live at 108 Park Lane. CHAIRMAN TOMLAN: And that is or is not within two hundred feet? MS. ZINDER: It is not within two hundred feet. I 'm representing Frank Denner, I have a letter from Frank who lives at 104 Valentine Place and he just started a new job and he is probably working at this very minute. CHAIRMAN TOMLAN: I see, so you are appearing essentially on behalf of a neighbor in a sense then? MS. ZINDER: I am appearing on behalf of a person I sold my house to. CHAIRMAN TOMLAN: Okay, fine. What I am saying is, that he lives within that two hundred feet? MS. ZINDER: Right, within two hundred feet of the property. CHAIRMAN TOMLAN: All right, fine, so long as we've got that all clear on the record. Everybody is happy with that? MS. JOHNSON: Don't we have to make a decision on our first appeal before we go on to the second? CHAIRMAN TOMLAN: No. . . MR. SCHWAB: No, she is speaking for the first appeal. MS. ZINDER: It really is for the first appeal, it really is the very same. . . MR. SCHWAB: Maybe she is speaking on behalf of this neighbor. . . MS. JOHNSON: Oh, he has another appeal. . . PAGE 61 BZA MINUTES 11/30/87 CHAIRMAN TOMLAN: That's right, he has another appeal. . . SECRETARY HOARD: Well, if this is going to be combined it ought. . . CHAIRMAN TOMLAN: I 'm not willing to combine anything, please. What we are entertaining here are comments that you are making on behalf of Mr. Denner with respect to Appeal 1803 . Helen is that clear? Everyone else is clear? And the audience is clear, let's hope. That the comments that Chris Zinder is making are those for Frank Denner, who is a neighbor and I don't want to think any further about that. Go ahead Chris. MS. ZINDER: Well I think actually that the discussion has pretty much exhausted the issue on Woodcock Street but I feel that we are really operating at a disadvantage - not having the information that you have before you about previous cases - or about the previous case - the Westbourne case and not having been able to review that and to study it. I think it really puts the citizens at a disadvantage - those who have submitted an appeal. I have a couple of questions about that, for example, does that particular case deal with the transition issue - I think that would be important to look into when we are talking about Woodcock compared with the Westbourne Lane and I heard you mention that Westbourne Lane entered only one property. . . SECRETARY HOARD: No I didn't say that. MS. ZINDER: And it doesn't. . . SECRETARY HOARD: It is several properties. . . MS. ZINDER: That particular decision was not based on the street going into one property then? PAGE 62 BZA MINUTES 11/30/87 SECRETARY HOARD: No the decision was based on an appeal dealing with one property but it was on a private street known as Westbourne Lane - there are several other properties. . . MS. ZINDER: Because Woodcock would enter several properties too - it would pass by several properties - Ithacare, Novarr's properties, the Deans and the Harings. CHAIRMAN TOMLAN: Are there any points you would like to make with respect to the Zoning Ordinance in either the interpretation or the transition regulations? MS. ZINDER: This is in relation to the transition - you are basing your decision on Westbourne - or part of your decision will be based on the Westbourne case - what has gone before, and if it is not related to a transition issue - and I think that possibly we can't use that particular case to base our future decisions on. I guess that's all I have. CHAIRMAN TOMLAN: Any questions from members of the Board? [none] Thank you. Now I 'll ask once again for members of the Board whether in fact they want any further information from anyone who has presented - any further information? MR. RAJ: I would like to present a closing argument. . . CHAIRMAN TOMLAN: Mr Raj , unless - I am asking the Board at this moment whether, in fact, there is the possibility of rebuttal and, again - going through it again - I just don't know whether, in fact, we have time for that and whether the Board really feels as though it is necessary, which I think is a bigger issue. I am getting the sense from the Board that they have quite heard enough, quite frankly. Toward that end I think we will close the PAGE 63 i BZA MINUTES 11/30/87 information gathering and begin to reach a deliberation on our own. Thank you. PAGE 64 BZA MINUTES 11/30/87 DELIBERATIONS ON APPEAL NUMBER 1803 CHAIRMAN TOMLAN: It seems to me that - at least I would appreciate three different motions to deal with the three different aspects of the appeal. I think it would be easiest to deal with it in that manner. The three aspects are. . MR. OAKLEY: The boundary question, the corporate boundary, transitional rule and what is the third one? CHAIRMAN TOMLAN: The third one is essentially to go on record that we don't deal with the issue of environmental quality, nor engineering questions involving the project and if you want, that's the easiest - you could probably take it first. I don't have any particular order in mind. MR. SIEVERDING: Why don't we just take it from the top and work our way through. CHAIRMAN TOMLAN: Sure. MR. SIEVERDING: My sense of the district boundary is that, particularly going through the 184 minutes and the methodology described there and the boundaries that were adopted at that time, seem to me to be perfectly reasonable and given the language of the Zoning ordinance, the Zoning Map, and the fact that it is scaled off the mylar, which is, in fact, a much larger scale then the copy that is generally distributed, and that it was in fact a sort of methodology of going through those alternatives in Section 30.23 so I am ready to make a motion to accept those boundaries as being reasonable or upholding the Building Commissioner's interpretation of that Section in establishing the size of the zone. CHAIRMAN TOMLAN: Further comments? PAGE 65 BZA MINUTES 11/30/87 MR. WEAVER: Just comment. I don't think it needs to be added to the motion, but testimony here failed to provide us with a superior method of determination to those made use by the Building Commissioner. MR. OAKLEY: I would just second the motion. CHAIRMAN TOMLAN: Well first we have to have one. Herman, do you want to give it a go? PAGE 66 BZA MINUTES 11/30/87 DECISION ON APPEAL NUMBER 1803A FOR 122-154 VALENTINE PLACE The Board of Zoning Appeals considered the request of Rishi Raj for an interpretation of Sections 30.23 and 30. 36A of the Zoning Ordinance. The decision of the Board was as follows: MR. SIEVERDING: I move that the Board uphold the Building Commissioner's establishment for the boundary of the R-3 zone. MR. OAKLEY: I second the motion. PROPOSED FINDINGS OF FACT: 1. The justification for the southernmost boundary which is shown as a dotted cross line on Exhibit X (copy attached) , the map that was attached to Appeal Number 1587 ; this line is parallel to State Street as per the zoning map. 2 . That the 550' depth is compatible with the apparent dimensions of the adjacent zoning on the east side of Valentine Place. 3 . Relative to the other alternatives available under 30.23, there are no lot lines that have been identified which would approximate the southern boundary. VOTE IN 1803A: 6 YES; 0 NO BUILDING COMMISSIONER'S DECISION UPHELD PAGE 67 t 5TQEET ' 0 a 06 APPELLANTS' ALTERNATIVE #1 Ay i APPELLANTS' 1 ;. w ( ALTERNATIVE #2 '4 �� tt R-3a/P-1 BOUNDARY ACCORDING TO BUILDING COMMISSIONER HOARD�7 t L FOURTH POSSIBLE INTERPRETATION OF R-3a/p 1 BOUNDARY----) VALZ-N71 N E ASSOC IQ}T V % TtHACA 2F FIFTH POSSIBLE INTERPRETATION OF R-3a/P-1 BOUNDARY 218, :-, -tCr +1�C�rt+tlCw ornncrrt�OR1 +ZL}O � j �cr„rt[" ear A7V t�C°.S 22,19&4 f BZA MINUTES 11/30/87 DISCUSSION ON APPEAL NUMBER 1803B CHAIRMAN TOMLAN: Shall we move ahead? We are dealing now with transition regulations. Do you want, John, perhaps to begin the discussion by recapping your proclamation as to your view of the world? MR. OAKLEY: Okay. I find this a little more complicated than the boundary line one. Probably on the boundary lines - the result that they can be used. It does seem to me here that the question of street has been largely resolved, if they build the street, which they have agreed to do. That the Ordinance doesn't specify how much street or what kind of street and in a peculiar way would (unintelligible) certainly exists very strongly on paper. That the problem, seems to me, to be exactly what it meant by thirty feet into the next district. The Building Commissioner's drawing seems to me to be the most liberal interpretation of that rule. As I understand our limits and the limits of the Zoning Ordinance we pretty well have to take the more liberal determination of the rule. And so I can't really see much (unintelligible) ground, given the thirty feet that have been given. . . MR. WEAVER: What interpretation do you arrive at where thirty feet would shrink? MR. OAKLEY: If you were to say that it was thirty feet directly back from the street, if you were take this picture very literally, thirty feet would shrink in a variety of ways. It would shrink if you were to draw a line parallel to the street - it would shrink to something less than zero geometrically but probably not legally on the segment called D-E that goes straight back from that line would PAGE 68 BZA MINUTES 11/30/87 in fact be back into the R-3b district. On the - probably the key point which is the segment E-F - a line measured thirty feet - not perpendicular to the property line, but in fact, perpendicular to the right-of-way line, would be short, if you draw (unintelligible) that would probably be more like twenty feet, I guess. I don't have my compass with me - or projector or rulers here and it is a complicated interpretation. But the Building Commissioner does tell us that the tradition in the department is to simply draw a line parallel to the line of the property about thirty feet out from it. MR. WEAVER: John, the Ordinance doesn't refer to the point of origin - it talks about where a line - a district boundary line divides the lot and I don't know where you could measure from except the district . . . MR. OAKLEY: Oh, I 'm talking about measuring from the boundary line but. . . . MR. WEAVER: In something less than in a perpendicular direction? MR. OAKLEY: In something other than a perpendicular direction. I mean the illustration simply draws the boundary line parallel to the street and since the - and if the boundary line is in fact perpendicular to the street, that would imply that you could go thirty feet along the street front over into the next zone. I wish they had drawn the illustration in such a way that - if that is what they meant - that they had drawn the illustration so that the thirty feet extended not thirty feet, if they draw the (unintelligible) boundary perpendicular to the road there would be less confusion. PAGE 69 BZA MINUTES 11/30/87 CHAIRMAN TOMLAN: Well you can start your list of amendments to the Zoning Ordinance. . . Stewart do you have any . . . MR. SCHWAB: The only thing I have - just qualify that somewhat - I don't think that we, of necessity, must take the more liberal of two possible interpretations of the Zoning Ordinance - I think, in fact, that we don't always do that. Secondly, although it is certainly relevant, the building - the practice of the building (unintelligible) Board of Zoning Appeals decides what the Zoning Code means and the Building Commissioner will abide by until reversed by the Courts - whatever interpretation we give to it. That's not to say that this other one would be - I think the real question is to try to get out why are we allowing thirty extra feet tied to a requirement that there be some street frontage. I am a little bothered by the idea that you could just - even - as long as it abuts for just one foot in - would satisfy the goals of this, which is to provide access without going into the more retrictive zone - I would think that it would certainly want more extensive street and it seems to me you could say that you get your intrusion into the zone as far as that street goes and not further, is certainly, to me, a coherent analysis of 30. 36a, I guess. MR. OAKLEY: So that you are suggesting then that the thirty foot rule should apply only to that - roughly the segments G-F and some of the segments F-E? Is that what you are saying? Or that it should apply only to. . . . MR. SCHWAB: What map are you referring to? MR. OAKLEY: This map here - here we have the total right-of-way to here - the total street is perhaps to here - so if we take the PAGE 70 BZA MINUTES 11/30/87 right-of-way as being the street, then you would draw the thirty foot to about here - somewhere from - it would allow thirty feet from about here to about here (pointing to the map] - the street being here. Is that what you are arguing essentially - this area over here. . . MR. SCHWAB: I ' ll put it this way - it seems to me that's the only way we can say that that building permit is too broad - is if we take that interpretation - it's the only one I see. And the question for us is whether that's a realistic interpretation of this transition allowance. MR. SIEVERDING: The section of the ordinance though, doesn't that refer to portions of the lot or sections of the lot, it refers to the lot in its entirety and what it says is, when the lot has frontage on a street in the less restrictive zone then the lot can extend or the use - the entire lot can extend thirty feet into the more restrictive zone. I don't see anywhere in there where it said (unintelligible) . . . MR. SCHWAB: Take the case of the street that goes one foot - you front one foot in the R-3a and then you want to go a thousand feet of P-1 - you want to go thirty feet back - I don't think this was written to allow that. . . MR. SIEVERDING: But it is written the way it is written. MR. SCHWAB: Right and I would say - I would think that would be an inproper interpretation of things. MR. SIEVERDING: The right-of-way for Woodcock Street extends eighty to a hundred feet into the lot - we are talking about a significant of frontage and more frontage than what the Zoning PAGE 71 BZA MINUTES 11/30/87 Ordinance calls for in terms of width of the lot at the street in a normal sense - which is forty feet. CHAIRMAN TOMLAN: Are we back to the question of sorting out what a street is and what isn't a street? Or have we passed that? MR. OAKLEY: I 'm not worried about that. MR. SIEVERDING: Although somebody did raise the question of what is the significance of width and it doesn't apply to transitional zones but what it does establish is the principal of frontage on what one may not consider to be your normal, typical street and that frontage being adequate to satisfy the requirements of the Zoning Ordinance on rights-of-way - on non-dedicated streets and the like. MR. OAKLEY: I mean, the plan here is clearly that there is not - that some of the - a large portion of the right-of-way - sixty feet of it - is not going to be used and appears to be remaining a rather steep slope - I don't know what the divisions are here - whether they are five feet or ten feet - but it looks like they are either twenty or forty foot drop across between the boundary lines, which I assume is a boundary line of the right-of-way - the actual paved area of the driveway. But the Ordinance clearly says a right-of-way - it doesn't say street. . . MR. WEAVER: Well a practical application in many cases is not this division at the street front where a block is divided into two separate zones, but rather at rear lot lines separations between zones which are not uncommon in the City and there I 've not heard a concern because the property - being extended, has an existence on some street front. PAGE 72 BZA MINUTES 11/30/87 MR. OAKLEY: Also the Zoning Ordinance - since it specifically suggests that lot lines should generally follow established lot lines, there are very few cases. . . MR. WEAVER: Well, but the opportunity to develop over into - there is so little truly open land in the City that it generally - the back yard where there is a chance to make a move and have a thirty foot encroachment of commercial into residential as is not uncommon, and is often needed - so this happens over and over again and there the argument of how you measure it generally may abide by an original line up front of the property but, in fact, the separation between the two zones is at the rear lot line, or approximately the rear lot line - so that we are talking about - damn it - the line and not the basic zone - so that zone, I propose to understand this - that you can take any separation between zones and have the less restrictive have the right, although the rule has been met, to encroach not more than thirty feet into the more restrictive zone. In this case - I don't want to get in the argument of whether P-1 is more or less restrictive - but there would be a very real question there - but, in fact, how this could go anything less than the thirty feet into P-1, given the line that we have already approved. You approve that line - where would you like to start measuring from - obviously the line you just accepted. MR. SCHWAB; Well no one is denying that, I don't think, it is the question of how far, in this case - sort of to the west, more or less - do you allow the R-3 development to go into P-1 - with the argument being only that you drop the line essentially PAGE 73 BZA MINUTES 11/30/87 perpendicular to Woodcock down thirty feet past the boundary. Let me ask a question (unintelligible) if you take Charley's example, suppose you own on one - you've got a block of land that has two streets on it and you own all the land on the residential side - a full block - and you have a strip on commercial and it is divided right at these two lot lines between this commercial side of the street and the residential - that if you've got a quarter out, you can move the boundary for the entire block thirty feet into the residential? SECRETARY HOARD: If I understand you right - we have whole sections on the Elmira Road where the dividing line between business and residential runs right through a number of lots and in that case there is a real problem if you allow the access from Elmira Road - or let's see, if you allow it the other way - if you were to allow access from Spencer Road across a residential use into the more restrictive use - now that's a problem. And that is what this is trying to prevent - this transition. It is allowing you the benefit of this thirty foot strip and this Board allowed the thirty foot strip last time - Valentine 3, by the way - which was not parallel to Valentine Place - the idea is that it is granting the property owner - where the City is drawing a line and as everybody said tonight - those lines are not accurately drawn and sometimes the line runs through somebody's property and so some guy might have a business piece of property and find out that he has a strip of residential at the back. He ought to be able to move that business zone back and that's what it allows - thirty PAGE 74 BZA MINUTES 11/30/87 feet - it doesn't allow you to come - freer access across the more restrictive zone into the less restrictive zone. MR. SCHWAB: No, but you could have your access through the business zone and extend it residentially around the whole - not just back - but also to the side thirty feet, for the entire block. SECRETARY HOARD: If you own the whole property, yes. A thirty foot band right around the residential. MR. OAKLEY: If it was a single lot. SECRETARY HOARD: Yes, if it was a single lot at the time that the Zoning Ordinance was passed - or the line was drawn by the. . . MR. SCHWAB: I see. CHAIRMAN TOMLAN: Helen, any questions? Comments? MS. JOHNSON: No. CHAIRMAN TOMLAN: Are we coming closer to a motion? MR. SCHWAB: The last thing I would just like to say, and I don't know exactly, procedurally, just how to do this, I just refuse to believe that a mere paper street satisfies this 30.36a. Now, I don't know if we have anything to do with that, it's. . . CHAIRMAN TOMLAN: Do you want to ask for Counsel 's opinion? MR. SCHWAB: No, I don't want to do that. I 'd rather - SECRETARY HOARD: Stu, whenever somebody comes in for a building permit for a new project, they've got raw land - it doesn't have the fire access, it doesn't have dozens of things that are required by this Ordinance. . . the building permit is based on the representation that all of these things will be done - the access will be there - the fire access will be. . . MR. SCHWAB: That's my question essentially. . . PAGE 75 BZA MINUTES 11/30/87 SECRETARY HOARD: All those things - that's a condition of the building permit. If they don't put the road in, they don't get to occupy the buildings and their tenants won't be able to get to the buildings - at least they won't be able to get there with cars - they may want to. . . MR. SCHWAB: Well (unintelligible) of course, sort of circle around these other - Valentine Place - can't you, in fact. . . but my question is - for us to rule - as I get it, we are ruling whether the building permit was properly issued . . . SECRETARY HOARD: Well it's like a sub-division. If you come in for sub-division, you've got to - if I had a property conditional on putting the street in. . . MR. SCHWAB: I guess what my question is - what I'm lurching towards - can we put - even as a condition - for our granting this interpretation - yes that that street be fully opened and - you know, to the full extent of it - or otherwise the C.O. . . . CHAIRMAN TOMLAN: It's a moot point. . . MR. SCHWAB: Well it's not a moot point because I think - I am very troubled by this idea that he could open up that street one foot and then everything would be fine - they would get the C.O. because I don't think that's the proper interpretation of this Ordinance. MR. WEAVER: It's not a question in this case because they've got a hundred feet on the map. . MR. SCHWAB: If they build it all is my concern - I don't think that physical map works. MR. WEAVER: And you went back to another question that may be before us but I don't think we should rule on - whether this PAGE 76 BZA MINUTES 11/30/87 building permit was properly issued. First of all, we don't even have the building permit in front of us. . . CHAIRMAN TOMLAN: Never saw one, right. . . MR. WEAVER: To even talk about and it is none of our business. MR. SCHWAB: What are we ruling on then? MR. WEAVER: We are asked for an interpretation of the Ordinance and that does not include the activities of the Building Commissioner in issuing the building permit. That is quite a different animal, the permit, that is. CHAIRMAN TOMLAN: Are we getting any closer to a. . . MR. SCHWAB: I guess I would - I am not sure - I 'm one against five, so I 'm not - I ' ll make it, but the interpretation should be that to be allowed into the transition zone you need a street that works like a street. . . MR. SIEVERDING: But this will work like a street. The City has the right-of-way that enables this developer to build a street to City requirements that will function as a street. It is sort of like the cart before the horse, I mean it is an undeveloped piece of property. . . SECRETARY HOARD: You can make it a condition of. . . MR. SCHWAB: A condition of what - we aren't doing anything - we are interpreting. . . I 'm saying that the only way that this is - in other words - I would move towards a motion that 30. 36a requires that for this transition to kick in - extra thirty feet - that there be an actual street - what I mean by that - is a physically operating street as opposed to a street on paper. Do you disagree with that Tom? PAGE 77 BZA MINUTES 11/30/87 CHAIRMAN TOMLAN: I just kind of wonder whether we don't get ourselves into. . . . MR. SCHWAB: Well we are asked to interpret 30. 36a, right? I mean, we've got to say something. SECRETARY HOARD: But it's got to have street frontage. CHAIRMAN TOMLAN: But isn't there another situation where that may not be desireable? MR. SCHWAB: But what's an alternative, I 'm not even sure what an alternative motion is going to look like. . . CHAIRMAN TOMLAN: Well that's what I 'm trying to get to, I 'd like to hear a motion first and then we can discuss it. . . MR. WEAVER: Listen, if a guy has a proper building lot in the City and he wants a building permit to put up a house and it will be a part of several regulations that there be off-street parking for a single family, he doesn't have to build that and take a picture of it before you decide that he can have a building permit and he has met the off-street parking requirements of the Zoning Ordinance. The Zoning Ordinance does require that. . . MR. SCHWAB: Does the Zoning Ordinance require actual parking or on paper parking, I think the analogy. . . MR. WEAVER: I think that there being proper space on the lot that he proposes to build on. . . MR. SCHWAB: Can there be a tree in the way? MR. WEAVER: When he asks for the permit, of course. MR. SCHWAB: You just told me, we aren't really on the permit, we are interpreting this and the question is, does this require - it seems a question - it is largely a moot point I mean, because PAGE 78 BZA MINUTES 11/30/87 everyone is saying this is going to be developed but what if it is not? MR. WEAVER: Another. . . MR. SIEVERDING: He has to develop it or he is not going to get a C.O. MR. SCHWAB: Well that is what I want to tell Tom that this Board agrees with that, then until it is actually developed he cannot get a C.O. MR. WEAVER: But that is another ordinance of the City - another Code that we do not have jurisdiction over, that provides for the issuance of building permits and Certificates of Occupancy. . . MR. SCHWAB: So the reason he can't get a C.O. is because it violates this zoning. . . SECRETARY HOARD: He has got to comply with both the zoning and the building code. . . MR. SCHWAB: And one of the requirements is that this be an actual street rather than a paper street or else he has violated 30. 36a and therefore is not entitled to a C.O. MR. OAKLEY: Herman, I 've been thinking this and I mentioned it - Stewart, I 'm sorry - I mentioned it to Herman, which is that if we get into the practice of requiring that the City street be actualized, made real into its fullest potential or that the right-of-way be made real to its fullest potential, I suspect what we will have is not a Court challenge but the digging down of what appears to be a fairly steep slope since backhoes are cheaper than lawyers. And particularly the undesireable paving of a piece of ground that would otherwise not have to be paved. And I am very PAGE 79 BZA MINUTES 11/30/87 hesitant to - I mean I don't want to vitiate the Zoning Ordinance for the protection of the environment which is not what the Zoning Ordinance is about. But I 'd rather not deliberately force people to do things that we'd rather they didn't. MS. JOHNSON: You mean build a road or (unintelligible) MR. OAKLEY: Build a road where? A road is not going to be at the moment and where there is going to be adequate road access. . . MR. WEAVER: We haven't heard anything substantial that argues that this will not happen nor that it cannot happen. We've heard from the Zoning Officer that - Secretary of our Board - who has some experience in these matters - this would mean that you can't issue a permit to build or develop any land in the City of Ithaca until you get it built. MR. OAKLEY: I don't think I was. . . MR. WEAVER: Well that is what you are saying. . . MR. OAKLEY: No I was not trying - that may have been what you heard but no, that was definitely not what I was saying. MR. SCHWAB: I wasn't saying that either. MR. WEAVER: You are saying that they have to develop the access before you can recognize the access. . . CHAIRMAN TOMLAN: Can I suggest that because this is largely a moot point we can move on to a motion? MR. OAKLEY: I ' ll try. I move that the transition rule as stated in 30.36a should be interpreted as meaning that the line extending the more restrictive use should be drawn perpendicular to the boundary of the more restrictive zone - the thirty feet should be measured perpendicular to the boundary of the more restrictive PAGE 80 BZA MINUTES 11/30/87 zone. Findings of Fact: 1) this has been consistently the past practice of the Building Department; furthermore that the language of 30. 36a seems to refer to essentially inaccuracies in the drawing of the line initially and to favor giving an allowance of thirty feet beyond what the line appears to be on the map and further the Ordinance in fact is directly suggesting a permissive intention. And that's it. CHAIRMAN TOMLAN: Do I have a second? MR. SIEVERDING: A second, so that we can discuss this. CHAIRMAN TOMLAN: A second so that we can discuss this further, thank you. Now further discussion. MR. SIEVERDING: The main point of the interpretation is not so much the fact that the line is drawn perpendicular to the existing boundary lines thirty feet away but the fact that we've used the frontage requirement of 30. 36a - shouldn't there be a finding of fact that using the Woodcock right-of-way is appropriate to satisfy that requirment? MR. OAKLEY: That's then a different or an additional motion. . . CHAIRMAN TOMLAN: Well it could be a friendly amendment. MR. OAKLEY: How would we amend that though? We could do the simplest thing and suggest Woodcock Street as it is proposed be an extension of - that the building of Woodcock Street as proposed meets the requirement of frontage in the more restricted zone. CHAIRMAN TOMLAN: That's not exactly what Herman was saying but I think Herman was framing it a little broader than that. . . I 'm more comfortable, actually, with the amendment that has been proposed - that's my own feeling. Does anyone else have any thing. So we PAGE 81 BZA MINUTES 11/30/87 have a motion that has been amended - what I would like is to have the seconder to approve the amendment, that's agreeable, okay? MR. SIEVERDING: Fine. CHAIRMAN TOMLAN: And then we can go on to our findings of fact. MR. OAKLEY: I suppose I should do the findings of fact then. It appears that the developer has the right and the intention of developing Woodcock Street so that there will, indeed, be a street there and that's it. CHAIRMAN TOMLAN: Further discussion? MR. WEAVER: Well, I 'm not involved with the finding of fact but I 'd be more comfortable if we agreed upon the motion in terms of its content and the discussion where the line appears to be - I think the line has been established - it doesn't appear to be anywhere - where the line has been established - it was established there tonight, we said so. And that it is our interpretation that the more restrictive may intrude into the less restrictive by not more than thirty feet and we understand that to mean a line parallel to the division line between the two zones but extended thirty feet away. I have great trouble with the perpendicular. . CHAIRMAN TOMLAN: Yes, well I think we corrected that. . . MR. WEAVER: versus the parallel. . . parallel being at least an equal word in our language and that thirty feet away from another line would be hard to be anywhere else other than a perpendicular . . . MR. OAKLEY: No, it is possible to mention it a different way - part of our discussion. . . MR. WEAVER: It wouldn't be possible to have it thirty feet away and. . . PAGE 82 BZA MINUTES 11/30/87 MR. OAKLEY: Part of our discussion is not that the line should be - well I suppose you could say then that the line is thirty feet away from boundary line. Although even there if you take the point, I mean, I don't want to - the reason I chose that phrase is because if you take a point of an interior angle (unintelligible) E that the direct line between point B and the equivalent point in a thirty foot line is in fact more than thirty feet. And that is why I chose perpendicular but I will (unintelligible) I don't think this is going to get. . . CHAIRMAN TOMLAN: Is there any further discussion or can we get to a vote perhaps? MR. SCHWAB: I 'm not clear what the motion is. I think Charlie's was the simplest. MR. OAKLEY: Okay. MR. SCHWAB: But anyhow, I 'm going to vote. PAGE 83 BZA MINUTES 11/30/87 DECISION ON APPEAL NUMBER 1803B FOR 122-154 VALENTINE PLACE The Board of Zoning Appeals considered the matter of transition regulations for lots in two districts; decision as follows: MR. OAKLEY: I move that the transition rule as stated in 30. 36A should be interpreted as meaning that a line extending the more restrictive use should be drawn parallel to the boundary of the more restrictive zone, and the thirty foot should be measured perpendicular to the boundary of the more restricted zone. PROPOSED FINDINGS OF FACT: 1. This has been consistently the past practice of the Building Department; furthermore that the language of 30. 36A seems to refer to essentially inaccuracies in the drawing of the line initially and to favor giving an allowance of 30 ' beyond what the line appears to be on the map - so the Ordinance in fact is directly suggesting a permissive intention. 2 . Building at Woodcock Street as it is proposed, meets the requirement of frontage in the more restricted zone. 3. It appears that the developer has the right and the intention of developing and building on Woodcock Street, so that there will be a street there. 4 . It is the Board's intention that the more restrictive may intrude into the less restrictive by not more than 30 ' and we understand that to mean a line parallel to the division line between the two zones, but extended 30 ' away. VOTE IN 1803b: 6 Yes; 0 No Motion carried PAGE 8 4 BZA MINUTES 11/30/87 CHAIRMAN TOMLAN: Now we will go on to, finally, this should be simple and to the point - something which says that we don't deal with environmental issues. . . DECISION ON APPEAL NUMBER 1803c for 122-154 VALENTINE PLACE MR. SIEVERDING: I move that the Board not discuss the issue of environmental assessment review in that the Board of Zoning Appeals does not have the authority by virtue of the Municipal Code. MR. WEAVER: I second the motion. VOTE: 6 YES; 0 NO MOTION CARRIED PAGE 85 BZA MINUTES - 11/30/87 SECRETARY HOARD: The next appeal is APPEAL NO. 1804 FOR 122-154 VALENTINE PLACE: Appeal of Frank Denner of 104 Valentine Place, under Section 30. 58 of the Zoning Ordinance, for an interpretation of Section 30. 36A of the Zoning Ordinance: Transition Regulations for lots in two districts. The appellant is appealing the September 18, 1987 decision of the Building Commissioner, in which he issued a building permit to John Novarr for construction of fifty-one dwelling units at 122-154 Valentine Place. CHAIRMAN TOMLAN: 1804 come forward please. Again, stating who you are and how you are connected. MS. ZINDER: My name is Chris Zinder and I am here to speak on behalf of Frank Denner. I thought that the question Mr. Denner was asking, that was presented in the appeal, would have been answered in the previous appeal, but the question in this appeal is whether or not this lot is on a City street and Mr. Schwab brought that point up at one point during your discussion and that was not addressed. I would like to have that point addressed - whether or not the lot fronts on a City street. MR. OAKLEY: Might I ask a question? CHAIRMAN TOMLAN: Sure. MR. OAKLEY: Where - in 30. 36 - does it suggest that the property should be on a City street? MR. SCHWAB: As opposed to a street. PAGE 86 BZA MINUTES - 11/30/87 CHAIRMAN TOMLAN: Are you familiar with the Code itself? Have you seen a copy? MS. ZINDER: Yes I have. CHAIRMAN TOMLAN: Because it doesn't say anything about a City street in the Ordinance. So the question really can't be applied. It just says "a street" and you see that's the problem, okay? MR. SCHWAB: Plus we have a Court case that equates a private street as a City street. . . CHAIRMAN TOMLAN: Thank you Chris. Is there anyone else who would like to speak in favor? [no one] Is there anyone who would like to speak in opposition? [no one] That being the case can we entertain a motion, essentially, at this point. . . MR. OAKLEY: Do we need to consider the remainder of the appeal? CHAIRMAN TOMLAN: I think what we should do, for the record, is simply state - as you did - that the question brought before us with respect to the Section doesn't apply. I can't do that - you have to. MR. OAKLEY: No, no - what I was asking about - is that there was a second part to the original written appeal which suggested something about the notification. . . CHAIRMAN TOMLAN: You mean - not in the notification there isn't. What are you looking at? MR. OAKLEY: If you go to the second page - no, the third page of the appeal. . .there is a note there. . . CHAIRMAN TOMLAN: I see, I 'm sorry. . . MR. OAKLEY: It is a note that seems to me to be relevant but maybe not for findings or anything like that - that there is a problem PAGE 87 BZA MINUTES - 11/30/87 with notification which put a stop to legal objections when the notification could simply say "to build apartments" . Do you know what I 'm talking about? CHAIRMAN TOMLAN: I 'd like you to clarify - just for the record - now that you've brought it up. MR. OAKLEY: Okay. The residents in Valentine Place were sent the notice pursuant to - I forget what law - at any rate, a reasonably passed law - which says that if builders notify people living within two hundred feet of a project for which they have applied for a building permit, of their intentions to apply for a building permit, and that if noone objects within thirty days then the right to appeal that permit expires - whereas under the previous law the right to appeal permits extended, apparently, indefinitely. At any rate, I don't think that this is entirely irrelevant to whether or not we hear this appeal. But it does seem to me if there is something in the future we'd like to consider whether or not there shouldn't be some clearer notice of the nature of the project and whether we shouldn't just suggest that to the Building Commissioner or. . . CHAIRMAN TOMLAN: I think that can be dealt with after we have a motion. PAGE 88 BZA MINUTES - 11/30/87 DECISION ON APPEAL NUMBER 1804 FOR 122-154 VALENTINE PLACE The Board of Zoning Appeals considered the request of Frank Denner for an interpretation of Section 30. 36A of the Zoning Ordinance. The decision of the Board was as follows: MR. OAKLEY: I move that the objection raised in Appeal Nub er 1804 is irrelevant to the law. MR. SIEVERDING: I second the motion. PROPOSED FINDING OF FACT: 1. The appeal suggests a requirement that property front on a City street whereas the Ordinance cited suggests only the property front on the street. The Board has decided - in lieu of a previous case - that Woodcock Street is indeed a street for the purposes of the Ordinance. VOTE: 6 YES; 0 NO MOTION CARRIED PAGE 89 BZA MINUTES - 11/30/87 SECRETARY HOARD: The next appeal, APPEAL NO. 1805 FOR 122-154 VALENTINE PLACE: Appeal of Jane V. Pedersen of 206 Elmwood Avenue, under Section 30.58 of the Zoning Ordinance, for an interpretation of Section 30.23 (Interpretation of District Boundaries) , and Section 30. 36A (Transition Regulations for lots in two districts) . The appellant is appealing the September 18, 1987 decision of the Building Commissioner, in which he issued a building permit to John Novarr for construction of fifty-one dwelling units at 122-154 Valentine Place. The appellant is also asking the Board of Zoning Appeals to review the Building Commissioner's determination that environmental review of the project was not required under the City's Environmental Quality Review Ordinance, and to review engineering questions involving the project. CHAIRMAN TOMLAN: Jane has left? Is there anyone hear representing Jane at this point? No? Well we'll move ahead to the next variance. PAGE 90 BZA MINUTES - 11/30/87 SECRETARY HOARD: The next appeal is APPEAL NUMBER 1806 FOR 307 SOUTH PLAIN STREET: Appeal of Lula Tucker for an extension of a Special Permit for a home occupation under Section 30.26 of the Zoning Ordinance, and an area variance for deficient setbacks for the front yard and one side yard, under Section 30.25, Columns 11 and 13, and an area variance for location of an accessory structure too close to a side lot line under Section 30.42C of the Zoning Ordinance, to permit the enlargement of a home occupation (a catering business) and enlargement of the existing accessory structure in which the home occupation is located, at 307 South Plain Street. The property is located in an R-2b (Residential, one- and two-family dwellings) Use District in which the existing and proposed use is permitted under a Special Permit; however the appellants must first obtain an extension of their existing Special Permit: and an area variance for the listed deficiencies before a building permit or Certificate of Occupancy can be issued for the proposed expansion. CHAIRMAN TOMLAN: Mrs. Tucker come forward please. I want to apologize for keeping you so long. We are moving as fast as we can, believe it or not. If you would begin by identifying yourself and where you live? MRS. TUCKER: My name is Lula Tucker, owner of Tucker's Catering Service. I am appealing tonight to make an expansion to my PAGE 91 BZA MINUTES - 11/30/87 catering kitchen. I think it was in 1982, I was here for a Special Permit to (unintelligible) to a catering kitchen. I was granted that permit but there was certain guidelines that I had to meet in order to pass inspection of the Tompkins County Health Department. I had to put in a three-bay sink, bathroom, sink outside the bathroom to wash hands, not to mention the stove, the refrigerator and the freezer - by the time all this was in, I had very little space left to work. So what I need is an expansion to have more room to work, also room for storage of supplies. Right now I don't have room to build shelves to store anything - so what I would like to do is add four hundred two square feet to the back of the existing building and this would give me more space to work, also space for storage. CHAIRMAN TOMLAN: A point of clarification. The garage now comes back with its gable fronting the street, right? There is a shed addition on the rear, more or less, not the same gable form, but rather the shed continuous, right? You are thinking of adding behind the garage, right in the same line, is that what you are saying? MRS. TUCKER: Yes, the existing building - we want to go back - we want to take it back four hundred two feet. . . CHAIRMAN TOMLAN: Square feet? MRS. TUCKER: Yes, square feet, right. CHAIRMAN TOMLAN: Otherwise you would be going an awfully long way. MRS. TUCKER: We had thought maybe we would do two hundred back - then come off to the side another two hundred feet. . . CHAIRMAN TOMLAN: Into the yard? PAGE 92 BZA MINUTES - 11/30/87 MRS. TUCKER: Which would leave the building in an "L" shape. CHAIRMAN TOMLAN: I see. MRS. TUCKER: You know, whichever would be better to do. There is room to do both - whichever. CHAIRMAN TOMLAN: Questions from members of the Board? MR. SIEVERDING: With the expansion, does there come an increase - will there be more people working there? MRS. TUCKER: No, the thing is - I don't have room to even use the amount of people that I 'm allowed. Right now I am allowed two employees which I don't have. There is just not room enough to operate. CHAIRMAN TOMLAN: We have a site plan. In this scheme it shows that you've got the proposed addition right along side the addition - as opposed to up here. . . MRS. TUCKER: This is one idea - we thought maybe we would expand the whole thing - you know - come up the side and make it wider rather than go back. . . . so we decided not to do that. . . CHAIRMAN TOMLAN: The reason, of course, is that , if you move this over here {pointing to site plan} you exacerbate more of the lot line deficiency - that in a sense provides you. . . this provides you with the least amount of problem - on the other side of the question - looking at this, I wonder about how you are going to rebuild your roof? You can have one roof here and one. . . I mean, that's a different question - it's not really under the purvey of this Board but I want to bring that out because there wasn't anything on the site plan in the materials that we go. MS. JOHNSON: So this represents what you are planning to do? PAGE 93 BZA MINUTES - 11/30/87 MRS. TUCKER: Yes. But there are two diagrams there - one is the "L" shape and then the one coming up the side. . . MR. WEAVER: We need to see the "L" shape. . . MRS. TUCKER: The "L" shape. . . maybe he didn't do it. . . wait a minute, here it is. . . I think this is it. CHAIRMAN TOMLAN: The proposed addition with the "L" form indicates five hundred and fifty-nine square feet as opposed to four hundred and two. . . do you have any reason for that? MRS. TUCKER: I thought it was four O two - what I would like to do is do the two hundred feet back - extend it two hundred feet back, then come in the same amount to the inside - do you understand what I mean? CHAIRMAN TOMLAN: Yes. You want to do the "L" shape addition, is what you are saying? MRS. TUCKER: Yes, I think so, at this point. CHAIRMAN TOMLAN: But that's more than the four hundred two, just so we are clear about that. MRS. TUCKER: That is more than . . . CHAIRMAN TOMLAN: According to the diagram. MR. OAKLEY: We have to pull out the Commissioner's authoritative calculator but it looks like the calculations are about right. CHAIRMAN TOMLAN: Well you see we have to get clear in your mind as well as in ours - exactly what it is that we are looking at here. I mean if it is the case that you really want the "L" shaped addition, it is a different sort of set of circumstances than it is if you are simply putting an addition adjacent or - conversely - just putting it all behind. We have to know what we are approving. PAGE 94 BZA MINUTES - 11/30/87 Now we are doing some higher mathematics over here to figure out for sure that that's more than four hundred and two square feet. Could I ask a little bit about the purpose of this base that you would be adding? Is it essentially to accommodate all of these things that the Tompkins County Health Department wants you to make use of or have you already installed those and you are looking for additional space? MRS. TUCKER: Well I have already installed those and I need the additional space. After I put all these things in - I have a table in the center and all these things along the side and there is not much room to move around. So I don't have any room for storage of any supplies or anything. CHAIRMAN TOMLAN: Questions from members of the Board? MR. OAKLEY: I 'd like to find out about one thing - about the employees. At the moment you essentially have no employees working at the site, is that correct? MRS. TUCKER: Yes. MR. OAKLEY: And that when you do this expansion you will have two employees? MRS. TUCKER: Yes, I 'm allowed two. MR. OAKLEY: Okay, by your previous variance? MRS. TUCKER: Yes. MR. SIEVERDING: Is this a full time - how often do you use the kitchen? Is this a full time activity or. . . MRS. TUCKER: Yes. Maybe three times a week to the most that I really have to use it. CHAIRMAN TOMLAN: What figure did we come up with? PAGE 95 BZA MINUTES - 11/30/87 MR. OAKLEY: I came up with five hundred forty-six which is very close to five hundred and fifty-nine - for the "L" shaped addition. I think we need to really settle on what plan we are going for and. . . CHAIRMAN TOMLAN: I think so to and I think also - if we are going to get in the business of redesigning the worksheet at this point - think about that too. It may or may not. . . SECRETARY HOARD: You mean at this point. . . . CHAIRMAN TOMLAN: Yes, if the proposal is to add on the rear are there any changes. . . SECRETARY HOARD: Well the rear setback and the rear yard depth - it will change the lot coverage. . . MR. OAKLEY: It changes but it is not going to change it enough to. . . SECRETARY HOARD: No - the lot coverage. . . MR. OAKLEY: The lot coverage will not change. . . MR. WEAVER: That's not an absolute is it? That it is not going to change the lot coverage. . . MR. OAKLEY: (UNINTELLIGIBLE) the lot coverage but I think it will not break it into thirty-five percent according to the estimate there. MR. WEAVER: Well you see the four hundred and two would bring it up to thirty-one and a half. . . CHAIRMAN TOMLAN: Wherever that "L" shaped drawing is, could we append that to the record, Mrs. Tucker, if that is okay - because we don't have a copy of any of that and it should be in the Building Commissioner's file. PAGE 96 BZA MINUTES - 11/30/87 MR. SIEVERDING: (UNINTELLIGIBLE) MR. OAKLEY: The gross coverage would be thirty-three point five percent - so that is still under the thirty. . . . MRS. TUCKER: If we have to go with all the addition in the rear, you know, that would be fine, if that is going to make a difference. If it is going to be too much to have the "L" shaped, you know what I mean, we can. . . CHAIRMAN TOMLAN: Well the idea would be - the case scenario is the one that we thought we were dealing with first - where you were essentially adding immediately to its right, okay? But what you have asked for, is an "L" shaped addition which is better than - in our eyes - putting it all on the rear, okay? So, what - I don't want to get in a situation where we are designing it for you but we already have to some degree because you have changed the grounds on which we are making our decision. . . MRS. TUCKER: Yes, I looked at that . - you know - to come out the side is going to extend it almost as wide as the present building is. Plus it is going to bring it into my back door of the house - I 'm not going to have very much space to come out - so I have to really make a decision there - whether I want to do that or do the "L" on the back. CHAIRMAN TOMLAN: I see, okay. Do members of the Board understand that point? MR. SCHWAB: If it is an "L" in the back, we are only talking about one foot. . . MR. OAKLEY: Ten feet. MR. SCHWAB: Well isn't it a side yard deficiency of one foot? PAGE 97 BZA MINUTES - 11/30/87 MR. OAKLEY: Yes there is a side yard deficiency. . . MR. SCHWAB: It requires five and there is only four. MR. WEAVER: It is deficient one foot, is what he is saying. CHAIRMAN TOMLAN: One foot back and then twelve foot down. . . MR. SCHWAB: That strikes me as relatively minor. If there is a reason that the appellant has to prefer the "L" shape, then, as I hear this, the "L" shape won't block your back door as much? MRS. TUCKER: No, it is going to be at the back (unintelligible) CHAIRMAN TOMLAN; Okay? MR. OAKLEY: I understand what we are working on now. CHAIRMAN TOMLAN: Good. It is always useful to have understood what we are working on. Is there any further discussion now that we know what we are working on. Any further questions? SECRETARY HOARD: She does need a rear yard variance as well. CHAIRMAN TOMLAN: If we go that route - with the "L" . MR. WEAVER: What does that amount to? MR. OAKLEY: Which columns are we looking at? SECRETARY HOARD: Columns 14 and 15. It becomes nineteen percent rear yard instead of twenty-six. . . MR. OAKLEY: You have sixty-one percent. . . minimum is twenty-five so you mean it actually cuts down. . . SECRETARY HOARD: Okay, pardon me - this is an accessory structure so it doesn't count as rear yard - the rear yard doesn't change. CHAIRMAN TOMLAN: Now that's good to hear. SECRETARY HOARD: Because the rear yard (unintelligible) accessory structure. PAGE 98 BZA MINUTES - 11/30/87 CHAIRMAN TOMLAN: Thank you Mrs. Tucker. Is there anyone else who would like to speak in favor? [no one] Is there anyone who would like to speak in opposition? [no one] That being the case, I 'll entertain a motion. PAGE 99 BZA MINUTES - 11/30/87 DECISION IN APPEAL NUMBER 1806 FOR 307 SOUTH PLAIN STREET The Board of Zoning Appeals considered the request of Lula Tucker for an extension of a Special Permit for a home occupation, an area variance for deficient setbacks for front and one side yard and an area variance for location of an accessory structure too close to a side lot line, to permit the enlargement of a home occupation and enlargement of the existing accessory structure in which the home occupation is located. The decision of the Board was as follows: MS. JOHNSON: I move that the Board grant the Special Permit and area variances requested in Appeal Number 1806. MR. WEAVER: I second the motion. PROPOSED FINDINGS OF FACT: 1. The "L" shaped addition to the accessory structure would not significantly exacerbate the existing deficiencies on the front and side yards. 2 . This addition would not increase the traffic, according to the appellant. 3 . There will be no additional employees. 4 . The proposed addition creates a small increase in the side yard deficiency. 5. The parking is covered. 6. Granting of this variance will not change the character of the neighborhood. VOTE: 6 YES; 0 NO VARIANCES GRANTED PAGE 100 BZA MINUTES - 11/30/87 CHAIRMAN TOMLAN: Appeal 1807 will be held over so we will move on to Appeal 1808. SECRETARY HOARD: Appeal number 1808 for 208 NORTH MEADOW STREET: Appeal of Wilfred B. Graham and Madeline C. Graham for an area variance for a deficient sideyard under Section 30.25, Column 13 of the Zoning Ordinance, to permit the conversion of the two-family dwelling at 208 North Meadow Street to a chiropractor's office. The property is located in a B-4 (Business) Use District, in which the proposed use is permitted; however the appellants must first obtain an area variance for the deficient sideyard before a building permit or Certificate of Occupancy can be issued for the conversion. CHAIRMAN TOMLAN: Good evening. If you would begin by identifying yourself. DR. GRAHAM: My name is Wilfred B. Graham. (unintelligible) commissioned to use this building as an office. As you can see, on the north side of the drawings, it has about two or three feet on the side of the building and it needs five. The building can't be moved (unintelligible) it has parking and everything else there that we need - it is in an industrial area. MR. SCHWAB: Have you gotten the letter from the service station? DR. GRAHAM: No. They talked with me on the phone though. MR. SCHWAB: Okay. (unintelligible) a chain link fence. DR. GRAHAM: They are concerned that cars from my lot in the back will go through their lot in the back. I didn't think that that would be an issue here but I assure you we will work out something PAGE 101 BZA MINUTES - 11/30/87 with them in some way to block that off so we won't have cars going from one area to another. Their lot is just - you know - it blends right in with mine - there is no division. MR. SCHWAB: What they suggest is - I 'll read their last sentence - "we are in favor of this fence and request that this be a condition of this variance. " Do you have a reaction to that? DR. GRAHAM: Well, essentially the fence isn't - I don't see what it has to do with this variance in reality - they have a problem with cars going from my lot through theirs - I think we can probably resolve that between us but I don't know if it is something that this Board can do. I'd like to work that out in a neighborly way with them - I have no (unintelligible) CHAIRMAN TOMLAN: Further questions from members of the Board? [none] Thank you. Is there anyone else who would like to speak in favor of granting this area variance? [no one] Is there anyone who would like to speak in opposition? [no one] I 'll entertain a motion. PAGE 102 BZA MINUTES - 11/30/87 DECISION ON APPEAL NUMBER 1808 FOR 208 NORTH MEADOW STREET The Board of Zoning Appeals considered the request of Wilfred B. and Madeleine C. Graham for an area variance to permit the conversion of the two-family dwelling at 208 North Meadow Street to a chiropractor's office. The decision of the Board was as follows: MR. WEAVER: I move that the Board grant the area variance requested in appeal number 1808. MR. OAKLEY: I second the motion. PROPOSED FINDINGS OF FACT: 1. The change in use is an approved change in the district. 2 . The change in use will not exacerbate the existing deficient side yard setback. VOTE: 6 YES; 0 NO AREA VARIANCE GRANTED PAGE 103 BZA MINUTES 11/30/87 SECRETARY HOARD: The next appeal is APPEAL NUMBER 1809 FOR 507-09 WEST GREEN STREET: Appeal of the Ithaca Childcare Center for an area variance for deficient off-street parking, and deficient setbacks for the front yard and one side yard under Section 30.25, Columns 4, 11, and 13 of the Zoning Ordinance, to permit the temporary use of the building at 507-09 West Green Street for a child day care center. The property is located in an R-3b (Residential, multiple dwellings) Use District, in which the proposed use is permitted; however the appellant must first obtain an area variance for the deficient setbacks before a building permit or Certificate of Occupancy can be issued for the proposed use. CHAIRMAN TOMLAN: Good evening. Begin by identifying yourself. MS. BALADA: My name is Kathy Balada, I'm Director of the Ithaca Childcare Center and as Mr. Hoard pointed out, we are hoping to use this space as a temporary space, Ithaca Childcare Center needs to find temporary housing for its programs from January 1st through August. It is building a new building on Warren Road and this is one of three locations that I have found. Hopefully we will be a tenant in this building owned by HOMES, Inc. from January through June and we obviously need a variance for the area setback deficiencies. HOMES has already received a variance for these same setbacks when they purchased the property. There is an additional point here as far as parking. We need two off-street parking sites PAGE 104 BZA MINUTES 11/30/87 for staff, and additional two off-street parking sites for parents. And as of when I sent this information out, we had the two off-street parking sites for parents, right next to the building. I have since gained two additional off-street sites across the street at the VFW parking lot. There is a letter here that I can pass around. I 'll keep one copy for myself. This was done with HOMES acting as an agent for us. They took the ball and talked with the VFW and got them to agree. Yesterday Mr. Amici signed the letter - on the bottom, as you can see - saying it is perfectly fine for us to use those two sites from 7: 30 in the morning until 5: 30 at night, Monday through Friday. CHAIRMAN TOMLAN: Questions from members of the Board? MR. OAKLEY: Just to make it clear. There are two parking sites at the VFW and two other parking sites are along side the building to the west? MS. BALADA: Yes, we are graveling the side of the building to allow the two extra spaces. CHAIRMAN TOMLAN: You have nicely anticipated our primary objection. MR. OAKLEY: Our favorite objection. CHAIRMAN TOMLAN: You have denied us our favorite. . . Further questions from members of the Board? [none] Thank you Kathy. Is there anyone else who would like to speak in favor? [no one] Is there anyone who would like to speak in opposition to appeal number 1809? [no one] PAGE 105 BZA MINUTES 11/30/87 MR. WEAVER: Question, however. . . the appellant, by letter, is asking for a temporary permit. Temporary is rather indefinite and I would wonder if this isn't legitimate appeal for a permit. SECRETARY HOARD: Could be but all they want it for is temporary. MR. WEAVER: Well but temporary can turn into - and I would not like to have some deadline imposed that may become awkward a few months hence. SECRETARY HOARD: I agree. MR. OAKLEY: Right. CHAIRMAN TOMLAN: I will entertain a motion. PAGE 106 BZA MINUTES 11/30/87 DECISION ON APPEAL NUMBER 1809 FOR 507-09 WEST GREEN STREET The Board of Zoning Appeals considered the request of Kathy Loehr-Balada for an area variance to permit the temporary use of the building at 507-509 West Green Street for a child day care center. The decision of the Board was as follows: MR. WEAVER: I move that the Board grant the temporary area variance requested in Appeal Number 1809. MR. SIEVERDING: I second the motion. PROPOSED FINDINGS OF FACT: 1. The two deficiencies, namely the front yard and side yard deficiencies, will not be exacerbated by the occupancy and are typical of the neighborhood. 2 . The proposed use is not a question in that area, the use is approved. VOTE: 6 YES; 0 NO AREA VARIANCE GRANTED PAGE 107 BZA MINUTES - 11/30/87 SECRETARY HOARD: The next appeal is APPEAL NUMBER 12-1-87 FOR 614 SOUTH MEADOW STREET: Appeal of Advision Signs for a sign variance under Section 34. 6B (Table 34. 6B1) of the Sign Ordinance to permit the installation of two wall signs at 614 South Meadow Street (TOP'S Super Food Center) that exceed the maximum number and area permitted by the Sign Ordinance. Proposed are two signs on the face of the store that total 332 square feet; said signs are in addition to an existing free-standing sign of 80 square feet for a total signage of 412 square feet. The Sign Ordinance limits such signage to two signs total, and a maximum total area of 150 square feet. The property is located in a B-5 (Business) Use District in which the existing use is permitted; however, a sign variance must first be obtained before a sign permit can be issued for signage exceeding the limits of the Sign Ordinance. CHAIRMAN TOMLAN: Is there anyone here on this appeal? Good evening. If you would begin by identifying yourself. MR. POPIELA: Yes, my name is Jim Popiela, I work for the Advision Sign Company, representing Tops. As I am sure you saw, we have put in an application for the signage that we are proposing for Tops and I am sure, as you all know, they do have a Tops sign up there right now - TOPS on the wall. Now Tops, of course, has had a new addition put up to their building which, I am sure you saw, as well. So, I believe it is approximately - well it is over twenty PAGE 108 BZA MINUTES - 11/30/87 thousand square feet of new addition to the building. Now, of course, what Tops is looking for is - the reason for this extra square footage in a sign is so that actually they can get their logo up on the front - the logo is a symbol that they have had on all their buildings and without this extra square footage it is basically (unintelligible) so. . . the building itself - I have a site plan here, if you care to look at it, it does sit back approximately five hundred feet from the street. I 'll pass this around in case anyone would like to see it. Now I 'd like to make a statement, first of all, on the square footage. I 'm not too sure but I believe the drawings you have might be right, although on the sheet itself, it is not quite correct - the number - the total square footage - it comes out to approximately two hundred and ninety square feet instead of three hundred and thirty-two square feet. And also the pole sign on which they are stating the free-standing sign of eighty square feet is actually sixty square feet - a little smaller sign below that sign which belongs to one of the stores next door which I believe is either the building supply or the drug store. MS. JOHNSON: So the free-standing sign is sixty. . . MR. POPIELA: The free-standing is actually sixty - the other twenty belongs to one of the other stores, which is next to it. And the three thirty-two is actually two hundred and ninety. What we are trying to do actually is - the three hundred thirty-two is actually two hundred and ninety. MR. OAKLEY: On which page do I have to turn? MS. JOHNSON: (UNINTELLIGIBLE) PAGE 109 BZA MINUTES - 11/30/87 MR. POPIELA: Now the total linear feet of the Tops Super Market is approximately two hundred ninety - two hundred eighty-eight - two hundred ninety linear feet and what we are suggesting here is the fact that we are trying to correspond with one square foot for one linear foot, which is still somewhat within the range of one point five to one ratio that the Ordinance calls for, although we do understand that we are over in total square footage. MR. SIEVERDING: Why is the additional signage necessary? MR. POPIELA: The additional signage - they feel is necessary due to the fact that the building does sit quite a distance back from the street. And, as I mentioned before, without that, they are unable to put their logo up, which has really been the NFS - the Tops logo form, since they've actually started out. MR. SIEVERDING: Are they saying that the addition of the logo is critical to the operation of the business? MR. POPIELA: Well the identification of it, anyways. MR. OAKLEY: Are we still including the "Super Food Center" . . . MR. POPIELA: On the end? If that's been determined - whether we get permission for the sign, we will be willing to compromise and eliminate "Super Food Center". The important thing is the logo, is what we are really after. MR. OAKLEY: The logo plus the TOPS adds up to two hundred and ninety square feet. . . MR. POPIELA: No, that's with the actual "Super Food Center" which accounts for forty-four square feet. Without that forty-four, you have about less than two-fifty - about two hundred forty-six. PAGE 110 BZA MINUTES - 11/30/87 MS. JOHNSON: You are increasing the size of the letters that say "TOPS"? (unintelligible) MR. POPIELA: They are the same as existing, right. We just want to put the logo on it. The TOPS sign itself uses a hundred and eighty-two square feet and the logo uses sixty-four square feet. MS. JOHNSON: So the TOPS sign itself is in violation. . . MR. POPIELA: I believe they already have the. . . MS. JOHNSON: Without the logo, they are already in violation? SECRETARY HOARD: I think they had a variance. MR. POPIELA: Yes, they did - for that. MR. WEAVER: These calculations here are being made and presented by the appellant - have they been checked, because I don't find the worksheet very helpful. . . I find all of the dimensions added to my - of the appellant's submission - but then when I look at the worksheet, I decide that I am looking at a different property or something. MR. OAKLEY: Tom, did you do the calculations on the square footage or. . . I just wondered if you could clarify this. MR. POPIELA: I do have a larger sheet that this was taken from - a larger blueprint which you can actually read the scale - they do come out to two hundred ninety total - you can't really tell on the smaller copies, however. SECRETARY HOARD: The "Super Food Center" is marked as forty-four square feet, two feet by twenty-two feet - that agrees. And then the. . . MR. POPIELA: The TOPS sign itself is actually six point six and one-half feet by - six feet six inches by twenty-eight feet long PAGE 111 BZA MINUTES - 11/30/87 for TOPS, which gives you the hundred and eighty-two square feet. The logo itself is eight feet by eighty feet. . . SECRETARY HOARD: I have two hundred eighty-eight square feet for the TOPS and the symbol. . . MR. POPIELA: The TOPS and the symbol? SECRETARY HOARD: Yes. MR. POPIELA: Yes, that should be two hundred forty-six for the TOPS and the logo. CHAIRMAN TOMLAN: How much was the logo itself? MR. POPIELA: Sixty-four. MS. JOHNSON: (UNINTELLIGIBLE) MR. POPIELA: Six and one-half by twenty-eight. MR. SCHWAB: Are these all capitol letters? MR. POPIELA: Actually the O and the P - the sign really doesn't take up as much as that even, because the O and the P are quite a bit smaller - we are just adding it in to make the calculations easier - it is probably even less than that. SECRETARY HOARD: I added the two twenty-four and the sixty-four, was that wrong? The logo is sixty-four. . . MR. POPIELA: The logo is sixty-four and it is not two twenty-four, it's twenty-two. Four eighty-two. MR. SIEVERDING: We have the square footage for TOPS - our sheet has one eighty-two. CHAIRMAN TOMLAN: Right, that's correct. That's what he said. SECRETARY HOARD: Who did? MR. SIEVERDING: Tom said two twenty-four. CHAIRMAN TOMLAN: You said two twenty-four? PAGE 112 BZA MINUTES - 11/30/87 SECRETARY HOARD: Two twenty-four for the word TOPS and sixty-four for the logo. MR. SIEVERDING: It was two twenty-four on our sheets and it was crossed out. . . MR. SCHWAB: How do you get two twenty-four? SECRETARY HOARD: I read 2-2-4. . . (unintelligible) MR. OAKLEY: We have a little bit of crossing out there. CHAIRMAN TOMLAN: Well if it said six and one-half by twenty-eight, it does come out to a hundred and eighty-two square feet so. . . MR. POPIELA: Tom, I think what you are looking at is the actual eight feet - that is actually relating to the logo - the eight feet. If you look on the right of that - it says six point six inches with a T - and that is the biggest you can have on there - the other letters are smaller - they are probably less than six feet. I 'm not so sure if your sheet reads that but we can pass this one around again and (unintelligible) MR. SIEVERDING: If we can take those number as they are - sixty-four for the logo and one eighty-two for TOPS and forty-four for the Food sign, then the other discrepancy is the free-standing sign where our worksheet says eighty square feet and I think you just said that it is sixty. . . MR. WEAVER: Sixty and twenty. . . MR. POPIELA: Right, exactly. It is a six by ten. MR. SIEVERDING: It is a six by ten sign? MR. POPIELA: The eight - twenty square feet is for the Drugs Mart that is below it - which is not Tom's. . . MR. SIEVERDING: And how does that count? PAGE 113 BZA MINUTES - 11/30/87 SECRETARY HOARD: Who, the Carl 's Drugs? MR. SIEVERDING: Yes. SECRETARY HOARD: It doesn't. It's a separate business. MR. SIEVERDING: It's a separate business so it doesn't count. SECRETARY HOARD: It's entitled to its own sign. MR. WEAVER: So, a matter of clarification - they are asking - they, being the appellant - is asking for a sign which in final form will be two hundred and forty-six square feet according to the Ordinance? And to continue - sixty square feet at the street? MR. POPIELA: I 've got two hundred forty-six square feet for the TOPS and logo and then there is forty-four. . . MR. SIEVERDING: (UNINTELLIGIBLE) way over on the left. . . MR. POPIELA: On the right hand side. . . MR. OAKLEY: And then there is the sixty square feet on the pole. MR. WEAVER: I said two forty-six and sixty. . . MR. SIEVERDING: Right, and it is two forty-six plus forty-four plus sixty is what they are asking. . . MR. POPIELA: (UNINTELLIGIBLE) Super Food Center MR. WEAVER: Oh, all right - super food - I am exhibiting some prejudice, I'm afraid and I hadn't looked over there lately. CHAIRMAN TOMLAN: Further questions to clarify things? MR. SCHWAB: What are the reqs allowed (unintelligible) SECRETARY HOARD: They allow for all other businesses - maximum total - all signs - hundred fifty square feet. They can either have two signs on the building or two free-standing signs or one free-standing sign or sign structure and one sign on the building. PAGE 114 BZA MINUTES - 11/30/87 MR. SCHWAB: And how do you view that logo in TOPS? Is that two signs? SECRETARY HOARD: The logo that is part of that? I would draw around that and consider it one sign. MR. SCHWAB: View it as a separate sign for the Super Food? SECRETARY HOARD: Yes that one is an extra sign. MR. POPIELA: As I mentioned, the Super Food Center is really an option . . . SECRETARY HOARD: You just lost it. MR. WEAVER: You weren't fast enough to give that away. CHAIRMAN TOMLAN: Well actually it was gone before you got there. MR. POPIELA: If it were going to make a difference in your decision I would rather tell you now than after you make the decision. MR. SIEVERDING: Is one fifty on the building and one fifty on the street is the total signage allowed? SECRETARY HOARD: It says. . . MR. SIEVERDING: He can have a hundred and fifty on the building and a hundred and fifty on the free-standing sign on the street, is that right? MR. OAKLEY: That's the way we interpreted it. SECRETARY HOARD: That's the total for all signs - we are on 34 . 6, page . . . MR. SIEVERDING: It seems to me that we were working on the notion that one could have one fifty on the building and one fifty on the street for a total allotment of three hundred. . . PAGE 115 BZA MINUTES - 11/30/87 SECRETARY HOARD: Calling that a shopping center - you can have a hundred fifty for one free-standing sign identifying the (unintelligible) MS. JOHNSON: What defines a shopping center? MR. WEAVER: Let's not. CHAIRMAN TOMLAN: This was a Super Food Center. Still is, but just hasn't been noted as that. MR. - SIEVERDING: Shopping Center - is one hundred fifty on the building and a hundred fifty on the free-standing sign. CHAIRMAN TOMLAN: But did we consider the other a free-standing sign? MR. SIEVERDING: There was a lot of discussion about the total allotment of three hundred feet on the previous appeal. (unintelligible) CHAIRMAN TOMLAN: I 'm not so sure the number was that large. MR. SIEVERDING: Two twenty-five on the building and. . SECRETARY HOARD: Shall I get that appeal? CHAIRMAN TOMLAN: Yes I think that would be a good idea. MR. SIEVERDING: As I recall that it was two twenty-five on the building and fifty on the (unintelligible) SECRETARY HOARD: Yes but. . . MR. OAKLEY: And there are other. . . {discussion took place here with several people talking at once, so it wasn't decipherable) CHAIRMAN TOMLAN: What section again? MR. OAKLEY: 30.46A-1. One free-standing sign not exceeding fifty square feet in area (unintelligible) one sign attached or painted PAGE 116 r BZA MINUTES - 11/30/87 or applied to the front of the structure or building - which sign shall not exceed one and one-half square feet per lineal foot of structure or building frontage occupied by a business conducted on the premises - the total area of both signs not to exceed two hundred and fifty square feet. 34 . 6A-1, I think or maybe. . . (UNINTELLIGIBLE) CHAIRMAN TOMLAN: Do we have further questions of the appellant? SECRETARY HOARD: Here is the trouble, you go over here [in the Zoning Ordinance] and it says in a B-5 zone each individual business on a separate lot is permitted two free-standing sign structures, one of which may bear a total of one hundred square feet of signage (unintelligible) be more than twenty-two feet high in each shopping center. . . [further on] . . .bear a total of one free-standing sign or sign structure bearing a total of not more than one hundred and fifty square feet. . . if you look around in here you find what you want. CHAIRMAN TOMLAN: Well we've determined what we think you want and I don't think there are any further questions, true? No further questions of the appellant? [none] MR. SCHWAB: Do you agree, Tom, that that free-standing sign is sixty square feet? SECRETARY HOARD: Do I agree that it is? MR. SCHWAB: Yes. Or that part of it (unintelligible) You initially had eighty. . . SECRETARY HOARD: Yes, I had eighty from the appeal. MR. POPIELA: We do all the TOPS signs - they are all six by ten. (unintelligible) PAGE 117 BZA MINUTES - 11/30/87 CHAIRMAN TOMLAN: Thank you. Is there anyone else who would like to speak in favor? [no one] Is there anyone else who would like to speak in opposition? [no one] That being the case, discussion or a motion. PAGE 118 BZA MINUTES - 11/30/87 DISCUSSION ON APPEAL NUMBER 12-1-87 FOR TOPS CHAIRMAN TOMLAN: We have eliminated "Super Food Center" - have we agreed? MR. SCHWAB: As I recall the other case that came in was Food Produce . . . CHAIRMAN TOMLAN: Yes we had that too. . . MR. SCHWAB: Pharmacy, rather. MR. OAKLEY: My difficulty is remembering what we did in the last one and noticing what the rules seem to be in this one - but maybe I 'm confused so I 'd like that clarified. My general tendency is to try to be equitable without starting a sign war. CHAIRMAN TOMLAN: That's true. MR. OAKLEY: And. . . MR. WEAVER: Was that a motion? MR. OAKLEY: No. I would almost like to go back and - if we knew what the figures were for the last decision. . . CHAIRMAN TOMLAN: We determined two hundred and seventy-five wasn't it? Two hundred and seventy-five square feet. MR. SIEVERDING: That's my recollection. MR. SCHWAB: That's the findings of fact. CHAIRMAN TOMLAN: That's the findings of fact so we are even. . . MR. SIEVERDING: As I recall there was two twenty-five on the building and fifty on the street. . . CHAIRMAN TOMLAN: I believe that's correct. MR. SCHWAB: I thought we said it would be less than that. Less than three hundred. . . PAGE 119 BZA MINUTES - 11/30/87 MR. WEAVER: Our findings in the last case were that the total square footage allowed by the Ordinance is three hundred square feet - this proposal will be less than that. CHAIRMAN TOMLAN: I see. MR. WEAVER: And it goes on to other findings but none of them have to do with. . . SECRETARY HOARD: Can we just xerox that one? MR. SCHWAB: Well they are coming in at over three hundred. MR. OAKLEY: He said they are coming in over three hundred. MR. SIEVERDING: Except that if you are looking at the Super Food Sign. . . MR. WEAVER: Six feet. . . MR. SCHWAB: They come in at 306. . . CHAIRMAN TOMLAN: They come in at 306, now if you move - can you move the logo a little closer to TOPS and essentially. . . MR. OAKLEY: No the logo is being measured separately . . . MR. SIEVERDING: No he indicated that the O and the P in TOPS are closer together (unintelligible) MR. WEAVER: We could also calculate the percentage of six to three hundred. . . CHAIRMAN TOMLAN: Well because the appellant's comments are not being recorded let it be noted that he is generally amenable to the notion of making the sign a little smaller than what is represented on the illustration. SECRETARY HOARD: Change the name to TOP. MR. SCHWAB: No, actually what he is saying is, can't you calculate lower case letters differently or separately? PAGE 120 BZA MINUTES - 11/30/87 SECRETARY HOARD: Yes. MS. JOHNSON: They did. CHAIRMAN TOMLAN: Well perhaps the Board would consider - from the Chairman - just kind of a friendly idea about a motion? Could we say something about (unintelligible) and beginning to think about something less than that again, as has been suggested, the motion could be similar to what we have had before? MR. WEAVER: Well is it our judgment that the proposal not exceed the maximum allowed in a combination of the two signs? CHAIRMAN TOMLAN: Well I think we could condition it to that, certainly. MR. SCHWAB: Well the first thing is that this does meet that because you could recalculate these lower case letters - save him about twenty square feet perhaps. MR. SIEVERDING: We don't need to do that if we just simply say that the limit is three hundred square foot. MR. SCHWAB: I think we either have to approve this proposal or not. CHAIRMAN TOMLAN: Well that's what we are doing - approving the proposal but making sure that it fits within three hundred square feet. MR. SIEVERDING: As allowed in the Sign Ordinance. CHAIRMAN TOMLAN: With the combination of the on the building sign and the free-standing sign. That's what I would suggest, right? MR. OAKLEY: Right, next question - just to be picky. The law says that a shopping center gets a hundred and fifty feet for one free-standing sign identifying the entire center. . . CHAIRMAN TOMLAN: Right. PAGE 121 BZA MINUTES - 11/30/87 MR. OAKLEY: Center, yes, a hundred and fifty square feet so that leaves the drug store should be included in the calculations. . . CHAIRMAN TOMLAN: He is always picky. . . MR. WEAVER: No that's not my understanding. . . MR. OAKLEY: If I look at table 34. 6b1. . . . MR. WEAVER: Well I would rather not look at it for a minute. Let's take some local examples in which the Center is identified at street - also with a main board for the several occupants - that doesn't mean there are no signs within the project. MR. OAKLEY: I don't think that was what I was suggesting. MR. WEAVER: I thought it was. MR. OAKLEY: I was assuming a sort of shopping center total limit of a hundred and fifty feet on the sign - some of which might say, in this particular case - TOP'S PLAZA - some of which might say, TOP'S SUPER MARKET - some of which might say, CARL'S DRUGS. . . CHAIRMAN TOMLAN: Do you see the. . . Charles. . . MR. WEAVER: Okay, I see what you are talking about. . . CHAIRMAN TOMLAN: In other words, it should be - if we are going to accept CARL'S - within the hundred and fifty square feet for the Shopping Center, it means that we would have to actually be a little smaller for TOPS - or with what they propose out on the free-standing - on the street. In other words, we can't get away with an easy solution. MR. WEAVER: Can't we get the appellant back up here and doesn't he have paper with him that would clarify - do you have any other plans with you other than this - or this scale? PAGE 122 BZA MINUTES - 11/30/87 MR. POPIELA: I have the one - I believe Mr. Hoard has - but a larger blueprint. . . MR. WEAVER; We are hung up on the actual size of the existing sign - we accept your numbers for the dice - or is that a die? CHAIRMAN TOMLAN: Don't feel bad, they had to come in twice too. That other competitor - we don't mention names. . . MR. SIEVERDING: So the key, if we are talking about being twenty-six - twenty-five square feet over, if you add CARL'S to the list, what TOPS would have to measure is - what you are saying, about the only feet. . . is probably going to be closer together than (unintelligible) MR. WEAVER: I don't know how difficult that is to calculate - it is impossible for me to calculate this - just looking at it and I. . . MR. POPIELA: It is rather difficult. . . MR. SIEVERDING: You can't do it with this plan, I mean, you have to see. . . . MR. POPIELA: Well the big one is on there - you can probably measure it off that but you probably need that to scale on there. MR. WEAVER: Suggestion, could we not resolve this by granting it with the condition that the result will not exceed three hundred feet and we'll have to argue among us whether we are going to add CARL'S, subtract CARL'S or what we do with it. . . . let somebody tomorrow morning find out what they've got. . . MR. SIEVERDING: That thought occurred to me when you guys were looking at the plans and it is just given - the three hundred square feet - to work with and let them distribute it between the PAGE 123 BZA MINUTES - 11/30/87 street and the building as they see fit, except that at the street we don't want it to be any more than a hundred and fifty square feet. MR. SCHWAB: Of course, there is - the only new thing is the logo. It is certainly a little waste if you are talking about five feet in making them redo . . . MR. SIEVERDING: The idea being that we don't mind if they go over on the building because it will reduce the amount of space taken up at the street but the limit on the street - do you really want to set at what the Ordinance says - one hundred and fifty. . . but the two will consist of both TOPS and. . . CHAIRMAN TOMLAN: I think in general we agree except that I think John's proviso - yet has to be attached as another provision if the CARL'S is incorporated within the hundred and fifty on the street. MR. SIEVERDING: It's TOPS plus any other business that is going to be out there - on the street has to be part of the hundred and fifty. . . MR. OAKLEY: (UNINTELLIGIBLE) the TOPS sign and the total area of the free-standing sign should not exceed three hundred square feet. CHAIRMAN TOMLAN: Boy that sure sounds like a motion. MR. OAKLEY: Wasn't there not once earlier a smaller TOPS sign with the logo? MR. POPIELA: I honestly don't know that. In other words with the pole sign and the building sign, it should not exceed three hundred square feet? We've got eighty on the pole already and one eighty-two on the wall so we are at two sixty-two so that leaves just thirty-eight square feet? PAGE 124 BZA MINUTES - 11/30/87 CHAIRMAN TOMLAN: That's right. MS. JOHNSON: You can recalculate the TOPS using the lower case letters. MR. POPIELA: That's correct. We are about - can we do that then? CHAIRMAN TOMLAN; Run that by again? MR. POPIELA: Okay, in other words, because TOPS is actually less than a hundred square feet, is what I am saying - so as long as we don't exceed the three hundred, okay. That's fine then. CHAIRMAN TOMLAN: Can we have a motion? PAGE 125 BZA MINUTES - 11/30/87 DECISION ON APPEAL NUMBER 12-1-87 FOR 614 SOUTH MEADOW STREET (TOPS) The Board of Zoning Appeals considered the request of Tops Food Market for a sign variance to permit the installation of two wall signs at 614 South Meadow Street (Top's Super Food Center) that exceed the maximum number and area permitted by the Sign Ordinance. The decision of the Board was as follows: MR. OAKLEY: I move that the Board grant the sign variance requested in Appeal Number 12-1-87 condition upon: 1) The super food sign not being allowed; 2) That the only TOPS sign on the building should consist of the TOPS sign plus the logo, and 3) That the total area of the TOPS sign plus the logo plus the total area of all signage on the free-standing sign should not exceed 300 square feet. MS. JOHNSON: I second the motion. VOTE: 6 YES; 0 NO SIGN VARIANCE GRANTED W/CONDITIONS PAGE 126 BZA MINUTES 11/30/87 SECRETARY HOARD: The final appeal tonight is APPEAL NUMBER 1810 FOR 122-154 VALENTINE PLACE: Appeal of Sean F. Killeen, of 111 Orchard Place, under Section 30.58 of the Zoning Ordinance, for an interpretation of Section 26.3 (Compliance with Chapter) , Section 26.24F (Approval by Other Departments) , and Section 26.24) (Stop Order and Revocation of Permit) of Chapter 26 of the Municipal Code ("Building Code Enforcement") , and Section 31. 1.8 (definition of a subdivision) of Chapter 31 of the Municipal Code ("Subdivision Regulations") . The appellant is appealing the September 18, 1987 decision of the Building Commissioner, in which he issued a building permit to John Novarr for construction of fifty-one dwelling units at 122-154 Valentine Place. The appellant is also asking the Board of Zoning Appeals to review engineering questions involving the project. CHAIRMAN TOMLAN: Good evening, Sean. You can begin by identifying yourself, who you are and where you come from. MR. KILLEEN: Thank you. I 'm Sean Killeen, 111 Orchard Place, City of Ithaca. I 'm certainly going to try - and I will be brief and not repeat much of the ground that has been covered. This Valentine issue is a long, complicated - no doubt about it - it has been with us for a number of years. I 'll assume, if I may, that you have received this cover document and attached to it four pieces of paper - four items, one a notice of 9/21 that has been referred to announcing to the neighborhood that there is something PAGE 127 BZA MINUTES 11/30/87 in the offing, second item is a letter from the City Engineer of 9/22, the letter of Tom Hoard dated 10/19 questioning - discussing his ministerial authority and the fourth item the minutes of the City Council - minutes of a special meeting of October 20th, particularly all of those Sections that deal with Valentine Place. A little bit later on 11/18 I received some additional papers that had been brought to my attention - more BZA forms in which I cite 26.24F and 26.24) and 26. 3 , 31. 18, subdivision arguments - more or less talking about what Mr. Hoard has just referred to. I will add though, the last sentence of this - "the applicant is also asking the Board to review engineering questions involving the project" - I don't quite think I am doing that - I don't think you would want me to, I don't think you would allow me to. MR. WEAVER: Pardon me Sean. I 'd like to raise the question of the standing of the appellant. CHAIRMAN TOMLAN: Yes, I think that's a good question - to begin with Charlie, and I wanted to wait until he got through all of what we are supposed to be looking at but I also want to follow up with a question as to how much of this is really our jurisdiction. Sean if you would begin addressing the question as to standing and then, more particularly, there are some things here of course which the Zoning Ordinance deals with and some things that the Zoning Ordinance doesn't, and I 'd like you to address that as well. Question first of standing - so you are coming here on behalf of whom? PAGE 128 BZA MINUTES 11/30/87 MR. KILLEEN: I 'm here as a private citizen who lives at 111 Orchard Place, which I believe is within the two hundred foot - whatever it is that is required. CHAIRMAN TOMLAN: You are within the two hundred feet? MR. KILLEEN: I believe so. CHAIRMAN TOMLAN: Did you receive a notice? MR. KILLEEN: Yes which I appended to a petition that I submitted on October 21st. I mean it wasn't personally addressed to me, it was a. . . CHAIRMAN TOMLAN: It was no notice of - did we ever have a - we don't have anything which indicates whether he does in fact live within two hundred feet? Can we get a reading on that for sure? SECRETARY HOARD: The zoning map. . . CHAIRMAN TOMLAN: I understand. . . do we have anything more accurate? SECRETARY HOARD: We can go to the tax maps. CHAIRMAN TOMLAN: Can you scale it off? [discussion took place here between the members of the Board and Secretary Hoard which wasn't picked up by the tape recorder] MR. SCHWAB: This is as the crow flys, right? MR. KILLEEN: Yes, as the crow flys. MS. JOHNSON: Where are you on Orchard, are you on the Blair side (unintelligible) MR. KILLEEN: Across Hunna Johns property. MS. JOHNSON: The minimum is two hundred feet. . . MR. OAKLEY: That is about two hundred and fifty there. . . CHAIRMAN TOMLAN: You see the dilemma Sean? If you are not within that two hundred feet, I 'm going to simply disallow the testimony PAGE 129 BZA MINUTES 11/30/87 at this point. If, in effect, you are dissatisfied with the way in which we conduct the hearing, of course you can always go to an Article 78, as I said before to others - but if, in effect, you don't have any standing in this particular instance within two hundred feet. . . MR. SCHWAB: This is to Ithacare property, right? CHAIRMAN TOMLAN: Right. Is that what you were measuring? MR. OAKLEY: We were measuring [unintelligible) but as we all know. MR. SCHWAB: Is it more than two hundred feet to Ithacare? MR. WEAVER: Yes, as far as I know. . . MR. KILLEEN: I was advised by the City Attorney at the meeting of October 20th what recourse would the people have - who spoke and whose comments are listed there as part of the packet that I sent to you. To whom do they appeal? CHAIRMAN TOMLAN: To whom do they appeal? MR. KILLEEN: And I was told at that time - to the BZA and the notice that I attached to my petition that was circulated - that I wish to comment about, if I could get to that point - invites anyone receiving it to grieve to any bonafide body that has responsibility for these matters - and again the BZA was cited. Now - I mean - I understand what you are saying - the dilemma that you have. . . CHAIRMAN TOMLAN: Well the question becomes very clearly for us - whether we hear every appeal from anybody in the City on any matter MR. KILLEEN: Right (unintelligible) phrase that I used before. . . PAGE 130 BZA MINUTES 11/30/87 CHAIRMAN TOMLAN: . . . it really get to be almost completely out of hand and we've got, in essence, to circumscribe certain limits and two hundred feet seems to be a reasonable limit, which we have adhered to for a long time. I mean, it is not something that we've dreamt up overnight, it goes back long before I was around - certainly became evident in the early 1801s, when I first came on the Board. We' ll check a little further. Now, do members of the Board feel tremendously different about this than I do? MR. SIEVERDING: I think the two hundred foot rule is the one that we ought to use. The other point in this case - I may be sort of jumping the gun by mentioning it - is that the issues that are being raised don't relate to the Zoning Ordinance. They are issues over which we have absolutely no jurisdiction. The Housing Code and subdivision regulations do not come under the purview of this Board. . . CHAIRMAN TOMLAN: To anticipate - I mean what Herman is doing is looking up - and that was my next question as well - even if we got through this, it was clear - we've asked for - I had asked Tom last month and we have received from the Assistant City Attorney a certain feedback as to what we could legitimately pass upon and many of the things that you have brought up we couldn't deal with in any event. I mean, we are just not authorized or empowered to deal with - it is like the environmental question, we don't have the capability of dealing with that. I wish - maybe I wish we did, I mean, one could wish that we did. Or that somebody did. That somewhere around there was some sort of . . . but you see there isn't any mechanism for us to deal with it officially or PAGE 131 BZA MINUTES 11/30/87 unofficially, really, even if we were to take some position, it would be completely out of character - out of hand, uncalled for - certainly an offense that we could be brought to Court for and undoubtedly be shot out of the water for by any Court. When you look at the - and I come back to you and others who have been on Council - where we have asked - from this Board - repeatedly - and you will see me in front of Council, I dare say, again, repeatedly ask - you and the other guys, as Alderpersons - for some attention to the whole problem with respect to zoning map - with respect to whole raft of issues - this has been sent to Planning and Development, it has been sent to Common Council - two and a half - three years ago and there has been - our hands are tied, in a sense, I mean, if we are going to act in a responsible fashion and that's what we intend to do. MR. KILLEEN: That's a different situation. Though I heard some comments, I do remember that the City Council did vote on Valentine Place a number of years ago, okay? They did vote - it's not like we didn't show up - we voted. CHAIRMAN TOMLAN: I understand. MR. KILLEEN: It was - not to many people's satisfaction - but we voted and to some they were thrilled. CHAIRMAN TOMLAN: That's right. MR. KIILLEEN: But I want to be very clear on why I am not being allowed to proceed tonight. . . CHAIRMAN TOMLAN: Because you are not falling within the two hundred feet as an individual and that is basically how you are coming forward, as an individual, as you should - that is your right. PAGE 132 BZA MINUTES 11/30/87 MR. KILLEEN: Well that is how I submitted this, but part of the argument that I was going to make is that in some sort of way I was speaking as a class action representative on behalf of the people because they are frustrated. . . and have been for five years. CHAIRMAN TOMLAN: Sure and I appreciate that. . . MR. KILLEEN: And I guess, of course, that's a matter to take back to the City Council. CHAIRMAN TOMLAN: Precisely. Exactly. Again my apologies for keeping you here all evening. . . MR. KILLEEN: Well I didn't wish to jump up, as others did. . . CHAIRMAN TOMLAN: I appreciate that. . . MR. KILLEEN: But you do know why I was at the end of the line, too? CHAIRMAN TOMLAN: I understand that too, yes. Thank you for coming. MR. KILLEEN: Okay. (unintelligible) fifteen dollars for those papers. . . CHAIRMAN TOMLAN: I wish we could give it back, I really do. MR. KILLEEN: Well - keep those papers. . . CHAIRMAN TOMLAN: Oh, we don't throw - I don't throw them away. MR. OAKLEY: There's a room in my home. . . CHAIRMAN TOMLAN: Could I have a motion that effectually addresses the question from the point of view of both no standing and also from the point of view of perhaps, relevance - I don't think, in fact, we even need the second. . . . MR. OAKLEY: We don't need the second part. . . PAGE 133 BZA MINUTES 11/30/87 CHAIRMAN TOMLAN: If we could just have a motion to essentially deal with the first part of that question - the question of standing. PAGE 134 BZA MINUTES 11/30/87 DECISION ON APPEAL NUMBER 1810 FOR 122-154 VALENTINE PLACE The Board of Zoning Appeals considered the request of Sean Killeen for an interpretation of Sections 26. 3, 26.24F, 26.24) and 31. 1.8 of the Municipal Code. The decision of the Board was as follows: MR. OAKLEY: I move that Appeal Number 1810 not be heard on the grounds that the appellant does not have standing in the case. MR. WEAVER: I second the motion. FINDING OF FACT: 1. The appellant is not within two hundred feet of the subject property. VOTE: 6 YES; 0 NO MOTION CARRIED PAGE 135 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 1803 , 1804 , 1805 , 1806 , 1808 , 1809, 12-1-87 and 1810 on November 30 , 1987, in the Common Council Chambers , City of Ithaca, 108 East Green 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. ? -�GO Barbara C . Ruane Recording Secretary Sworn to before me this day of December, 1987 N ry Public .OTA^Y'P.__.v. _.:`TOr'�<EW ITTOF2� E.1 J IG, RRL 80,17