Loading...
HomeMy WebLinkAboutMN-BZA-1988-07-11 TABLE OF CONTENTS BOARD OF ZONING APPEALS MEETING OF JULY 11, 1988 APPEAL NO. 1847 Bickley Townsend 3 109 Oxford Place APPEAL NO. 1847 Decision 11 APPEAL NO. 1852 David M. Streater HELD OVER 102 Homestead Road APPEAL NO. 1853 Kinga M. Gergely WITHDRAWN 326 North Geneva Street APPEAL NO. 1854 Zellman Warhaft 12 111 Lake Street APPEAL NO. 1854 Deliberation 21 APPEAL NO. 1854 Decision 24 Appeal No. 1854 More discussion 25 APPEAL NO. 1855 Ithaco, Inc. 33 737 West Clinton St. APPEAL NO. 1855 Decision 40 APPEAL NO. 1855 Discussion 42 APPEAL NO. 1856 Joseph W. Lee 51 107 South Albany St. APPEAL NO. 1856 Decision 56 APPEAL NO. 1856 Discussion 57 APPEAL NO. 1857 Mary Bramble 61 109 Harvard Place APPEAL NO. 1857a Decision 89 APPEAL NO. 1857b Testimony 90 APPEAL NO. 1857b Discussion 102 APPEAL NO. 1857b Decision 104 APPEAL NO. 1858 Craig L. Schaufler 105 321 College Avenue APPEAL NO. 1858 Decision 108 APPEAL NO. 1859 David R. Auble 109 711-713 West Court St. APPEAL NO. 1859 Decision 112 CERTIFICATION OF RECORDING SECRETARY 113 BOARD OF ZONING APPEALS CITY OF ITHACA NEW YORK COMMON COUNCIL CHAMBERS JULY 11, 1988 CHAIRMAN TOMLAN: Good evening. I 'd like to call to order the July 11, 1988 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 tonight include: Jack Peck John Oakley Herman Sieverding Charles Weaver Michael Tomlan, Chairman of the Board Peter Dieterich, Acting Secretary to the Board, Zoning Officer and Deputy Building Commissioner for the City Barbara Ruane, Recording Secretary The Board is going to hear each case in the order listed in the Agendum, first we are going to hear from the appellant and ask that he or she present the arguments for the case as succinctly as possible and then have that person available to answer questions from 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 own property PAGE 1 BZA MINUTES - 7/11/88 within two hundred feet of the property in question, or who live or work within two hundred feet of that property. Thus the Board will not hear testimony from persons who do not meet the definition of "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 findings and recommendations, 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 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, are not going to be recorded and therefore will not be considered by the Board in its deliberations of 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 for a special permit. In the rare cases where there is a tie vote, the variance or special permit is automatically denied. Tonight you will note there are only five PAGE 2 BZA MINUTES - 7/11/88 members present. As a result, any appellant has the right to request a postponement of his or her case until six Board members are present. I should note we don't at the present time know when we are going to have six members - that's really up to Common Council but at this point, if anyone does want to delay - that is, request a postponement, we'd like to hear from you. Are there any questions about our procedure? (none) Then may we proceed. ACTING SECRETARY DIETERICH: The first appeal is Appeal Number 1847 for 109 Oxford Place: Appeal of Bickley Townsend for a Special Permit for an Accessory Apartment for 109 Oxford Place under Section 30.27 of the Zoning Ordinance. The property is located in an R-1b (Residential, single-family dwellings) Use District in which the Accessory Apartment is permitted only under a Special Permit issued by the Board of Zoning Appeals. This appeal was held over from the June 6, 1988 meeting at the request of the appellant. CHAIRMAN TOMLAN: Bickley? Good evening. If you would begin by stating your name and where you live, for the record. MS. TOWNSEND: I 'm Bickley Townsend, I live at 109 Oxford Place. My husband and I would like to create a small one-bedroom apartment on the lower level of our house in Bryant Park. I ' ll give you a little background - we bought this house in 1975, it was our first and only house. We had two small children and another one on the way and immediately set about to try to turn this two and a half story Bryant Park house into more space. The first thing we did PAGE 3 BZA MINUTES - 7/11/88 was to finish a walk-up attic as a master bedroom and bath. A few years later we realized we had something that not every house in this neighborhood has, and that's an above ground basement and we proceeded to finish that as a family room. Now we have our two older children in college and we have one twelve year old at home. We have a lot more space than we need - we have four full floors essentially, of living area. What we would like to have is, essentially, some baby-sitter to live in because both my husband and I travel quite often and it would be very convenient now that our daughters are in college, to have somebody in the house and also have somebody available to do house-sitting. We do not plan any addition, this would be existing space - some of it finished space in the family room, the rest of it would be an existing one car garage which is under the house which we've never been able to use as a garage because it is at a right angle to the driveway and it is just impossible to maneuver. It would be extremely unobtrusive and involve no change to the exterior of the house - a small unit, less than four hundred and fifty square feet. We would intend to rent to only one tenant - an older, quiet tenant. If we list it at Cornell, it would only be in the graduate student book. We would list a preference for a tenant without a car, which we understand is quite possible to do, given the demand for housing in this neighborhood. But if we did have a tenant with a car, we have a twenty-five foot side yard which is adequate to provide another legal parking space. I think it is in keeping with the spirit as well as the letter of the ordinance, in that it would contribute to housing affordability in several ways. It would not only PAGE 4 BZA MINUTES - 7/11/88 contribute to our own housing affordability, now that we have two children in private colleges, it would help us to make some needed improvements to the rest of our house, but because money is not the primary motivation, we would be very happy to reduce the rent below market levels in return for services to us and, in the long run, I believe, if we did ever sell the house, I think it would make it more affordable for another family to move into Bryant Park. When we moved in there, Assistant Professor's salary was around $12, 000. and houses sold for prices in the 301s. Assistant Professor's salaries have gone up a little, but not nearly as much as housing prices. It would be nice, if we ever did sell the house, if another young family were able to move in and make it their first house and I think the existence of this small apartment would help them to do so. Finally, this is a use that is long established in this neighborhood, there are a great many accessory apartments, there are also people who have roomers in owner-occupied houses. Just to give you an idea of where and how they are located, I did a rough map of the immediate area - there are at least three accessory apartments in the two hundred foot area and about a dozen in the larger area - about a four hundred foot radius of our house. I 've also noted where there are owner-occupied houses who have roomers because I think that that also contributes to this sort of mixed owner-occupied, but houses with rental rooms or apartments in them. So we plan to live in the house for the forseeable future and would certainly comply with the spirit as well as the letter of the Ordinance. . . . PAGE 5 BZA MINUTES - 7/11/88 CHAIRMAN TOMLAN: Just to come back at a particular point - you are aware of the difference between an accessory apartment and the fact that it is a permit - that is, in your scenerio that somehow or another those would be passed on to a young professor? MS. TOWNSEND: They would have to - I realize, yes. . . CHAIRMAN TOMLAN: They would have to come back for a permit from us, it doesn't carry - and this is for the benefit of the audience as well. MS. TOWNSEND: Yes and I think that is the other way in which it ensures that a family would stay in that house because someone who didn't intend to live there as an owner-occupant - to them, this investment, which is upwards to ten thousand dollars, would be worthless. CHAIRMAN TOMLAN: Understood. The other thing is, with respect to your map, the owner-occupied with rental apartments vs. the owner-occupied with roomers, it should be understood, I think, that some of those buildings - for the members of the Board, some of the buildings that are indicated there - were built in that fashion - that is, they were duplexes and they have not been conversions, they were established at that point, right from the beginning. Questions from members of the Board? MR. SIEVERDING: If you needed to create a parking space, Bickley, that would go in the side yard? MS. TOWNSEND: Yes. Next to where the entrance would be to the apartment. MR. SIEVERDING: Is that currently paved or used as parking now or you'd have to create a parking spot? PAGE 6 BZA MINUTES - 7/11/88 MS. TOWNSEND: No, it is currently used as parking but it is one long driveway, we would have to create a second. . . MR. SIEVERDING: Cut out on the side there. . . MS. TOWNSEND: But there is enough room. MR. OAKLEY: I 'm a little confused, my traditional inability to read plans. The entrance is going to be one of the garage doors? MS. TOWNSEND: Yes. MR. OAKLEY: Okay. And essentially you will make that a garage door - looking externally the way it is or you will. . . MS. TOWNSEND: Well we may create a new wall with windows (unintelligible) consistent with the rest of the house. MR. OAKLEY: Because you have storage marked behind the. . . MS. TOWNSEND: We haven't had final plans drawn yet. MR. WEAVER: On that issue, somewhere in the pile of stuff I 've seen, was a recommendation or a comment that the preservation of these garage doors was a plus of some sort? MR. OAKLEY: Was that from the Planning Board? MR. SIEVERDING: It was in last month's packet. Wasn't there a Design issue related to this. . . CHAIRMAN TOMLAN: Well there normally is by virtue of cutting in another entrance for an accessory apartment, that's mandated whether the specifics. . . that's another matter. MR. BICKLEY: Well we would plan to use one of the doors. . . MR. WEAVER: Well I guess my question is, that is a recommendation to us - it isn't binding on us on the granting of the license, in my understanding. CHAIRMAN TOMLAN: No. PAGE 7 BZA MINUTES - 7/11/88 MR. WEAVER: Well, for one, I 'm not really terribly fond of old garage doors and if. . . MR. SIEVERDING: I thought you were going to say, of design recommendations from Planning. . . . MR. WEAVER: Well I just. . . if a window and a regular door turned out to be a comfortable solution I see no reason for us to comment on it - if we were to grant it, I see no reason for that being mentioned, in our action. MR. OAKLEY: Except that it is, I believe mentioned in the Ordinance on Accessory Apartments that changes to the exterior of the building should be. . . . MR. WEAVER: Yes, but that is on where they put the entrance and whether the entrance is obtrusive or not. CHAIRMAN TOMLAN: Section 30.27, paragraph 6, "new or additional front entrances or windows are discouraged but in any event must be in keeping with the architectural style of the rest of the structure. " MR. WEAVER: This being ninety degrees away. . . major element of the house, distance away. . . . CHAIRMAN TOMLAN: "New or additional front entrances must have the approval of the Design Review Board. " MR. WEAVER: Thank you. CHAIRMAN TOMLAN: Further questions from members of the Board? While my fellow Board members are thinking, Bickley, tell me a little bit, if you will, about your rebuttal to the twelve people who have signed the petition - backing up to you on Irving. PAGE 8 BZA MINUTES - 7/11/88 MS. TOWNSEND: Well first of all the Stinsons circulated that for the Planning Board and they were not familiar with the Ordinance. They didn't know that it required owner-occupancy, they didn't know that it was for a three year time period. I subsequently talked to them and some of the other people on that list and I think that did make a difference. I think if you look at this map, you'll see that accessory apartments are not just concentrated in one section of the neighborhood - they are really quite scattered around. In fact there are some on the other side of Mitchell Street and Ithaca Road that don't show up on here, but Irving Place happens to be the only street where there aren't any. In fact, there actually was one at the end - at the corner of Irving and Delaware before Thys Van Cort bought that house and he converted it back from an accessory apartment, but that house (unintelligible) . I think the concern of the Stinsons - I don't believe they are here tonight - and some other people - was not that they questioned our intentions or that they think there is anything wrong with an accessory apartment in an owner-occupied house, their concern is with long term enforcement. Their concern is that they see illegal uses around them in the neighborhood and because they can't control the illegal violators they feel that they need to fight against the legal ones. And my rebuttal for that is that I share their concern, I certainly hope this is enforced but I don't think it is either fair or effective to deny a legal use because you are afraid of an illegal one. CHAIRMAN TOMIAN: Further questions from members of the Board? [none] Thank you. Is there anyone else who would like to speak in PAGE 9 BZA MINUTES - 7/11/88 favor of granting this special permit? [no one] Is there anyone who would like to speak in opposition? [no one] The case is ours. PAGE 10 BZA MINUTES - 7/11/88 DECISION ON APPEAL NUMBER 1847 FOR 109 OXFORD PLACE The Board of Zoning Appeals considered the request of Bickley Townsend for a Special Permit for an Accessory Apartment at 109 Oxford Place. The decision of the Board was as follows: MR. WEAVER: I move that the Board grant the Special Permit for an Accessory Apartment at 109 Oxford Place with the condition that an off-street parking space be provided to meet the requirements of the additional occupancy. MR. OAKLEY: I second the motion. PROPOSED FINDINGS OF FACT: 1. The application details compliance with the Ordinance in all respects as detailed in Section 30.27. 2. The exterior appearance as proposed will not be substantially altered. 3 . The footprint will not be affected. 4 . There is no indication of any negative influence upon the neighborhood. VOTE: 5 YES; 0 NO GRANTED W/CONDITION [NOTE: BOARD IS LACKING ONE MEMBER DUE TO RESIGNATION OF STEWART SCHWAB WHO HAS MOVED OUT OF THE CITY] PAGE 11 BZA MINUTES - 7/11/88 ACTING SECRETARY DIETERICH: The next appeal is Appeal Number 1854 for 111 Lake Street: Appeal of Zellman Warhaft for an exception from the requirements for maximum grade of a driveway in Section 30.37, Paragraph A3 of the Zoning Ordinance, to permit the reconstruction of an existing driveway at 111 Lake Street. The appellant has determined that he is unable to reconstruct the driveway in a manner that would conform to the maximum grade requirements of the Zoning Ordinance. The property, which contains a single-family dwelling, is located in an R-2a (Residential, one- and two-family dwellings) Use District in which the existing and proposed uses are permitted. The driveway would be shared by adjacent property owners. CHAIRMAN TOMLAN: Mr. Warhaft. Have a seat and for the record, tape recorder and all, if you would begin by identifying yourself and where you live. MR. WARHAFT: Zellman Warhaft, 111 Lake Street, Ithaca. CHAIRMAN TOMLAN: You need an area variance? MR. WARHAFT: That's right. CHAIRMAN TOMLAN: You are actually here for an exception to the requirements of the maximum grade, which is really more particularly the case. But you've checked area variance - that's why I picked that out. MR. WEAVER: It is an area variance, it is not a use variance. CHAIRMAN TOMLAN: It has to be an area variance. There are only two kinds and it's not a special permit. We can't call it an PAGE 12 BZA MINUTES - 7/11/88 interpretation so I guess it has to be an area variance. Tell us about the grade, we've probably all looked at the grade on your driveway, but why don't you say a few words anyway. MR. WARHAFT: It is a very steep grade. I determine it to be rising four feet and sixteen feet. It is a shared driveway with two other houses and it is crumbling and it needs repairing - the tail pipes of our cars touch the road as we go up. I have also determined if we change the grade by about (unintelligible) suggested then we will have side entry and everybody will be happy. MR. PECK: What is your suggestion. MR. WARHAFT: My suggestion is to drop the sidewalk by a foot - by grading it down on either side - and lifting the grading slightly by perhaps six inches at the blacktop, near the road. Also widening the entrance to the driveway by two feet as shown on the drawing. You should, perhaps, realize that this sidewalk ends nowhere. It comes to a - as you will see, there are three houses, 115, 113 and 111 - this sidewalk comes to a stop at 115 and there is potentially a drop of about six feet so it can't be used anyway. I don't intend to go against any of the requirements about grading and so on but I just should let you know that it is not a very very important piece of sidewalk. CHAIRMAN TOMIAN: Are you aware of the message from the Engineering Department with respect to the blacktop? MR. WARHAFT: No I 'm not. CHAIRMAN TOMIAN: Did you see - would you share with him, Jack, we got a note. . . PAGE 13 BZA MINUTES - 7/11/88 MR. WARHAFT: "All changes to start at the curb line - Suggestions - use stair with two or more steps in south approach of sidewalk" . Well that would be fine because of. . . yes, all of that would be fine and I do believe by widening the skirt by two feet as shown in my diagram but the angle will be acute enough to stop the tail pipe problem. In other words, what happens at the moment is that you have to come around at too much of a right angle and the tail pipe hits but if you can come in more squarely (?) , by widening the skirt - I don't see that there will be a problem. Last time that they put new black top on the road, for a month or two after that we didn't hit the bottom because - just be lifting it two inches or an inch, or whatever it was - was enough to give us a - but the driveway is also crumbling so it is in need of repair and it would seem to me silly not to make it a safer entry and, in fact, an easier entry. CHAIRMAN TOMLAN: My curiosity kind of brings up a question as to whether you had thought about dipping or curving. I know it seems strange but curving perhaps that initial approach with a bit of a dip to it so that you would go up rather gradually, rather than at that angle. MR. WARHAFT: Well, lets - essentially by dropping this sidewalk by a foot is essentially dipping to a degree - (unintelligible) MR. PECK: Are you going to lower the entire rest of the sidewalk by a foot - is that the suggestion, or is that only going to be a foot (unintelligible) sidewalk. . . . PAGE 14 BZA MINUTES - 7/11/88 MR. WARHAFT: Well the suggestion of the two steps here (unintelligible) would be very acceptable. I was also prepared to make. . . MR. PECK: (unintelligible) drop down to that level and then continue on that level. . . MR. WARHAFT: That's right. That would be absolutely fine. MR. PECK: Now what does that do to the upper part of the driveway, doesn't that make that even steeper if you drop the sidewalk a foot? MR. WARHAFT: I 'm also planning to put - as you can see - new tracks on the upper part - side - and what I 'll do is regrade it as we go up. And the distance it takes getting from the sidewalk to the house is - there is enough leeway in order to make (unintelligible) and I'm going to put very heavy treads on it (unintelligible) CHAIRMAN TOMLAN: Further questions from members of the Board? MR. WEAVER: Yes. If you go a foot lower with that sidewalk at the point where the driveway crosses, won't your angle of departure on the upper portion of the driveway not (unintelligible) but the upper portion - won't that become pretty critical? MR. WARHAFT: As I just mentioned to this gentleman [Jack Peck] , I am intending to put in a new driveway as well. MR. WEAVER: I heard what you said but, what I would understand is that you would have to alter the grade for a very substantial distance. MR. WARHAFT: Well it would be all right up to the house at the top. MR. WEAVER: I understand that. PAGE 15 BZA MINUTES - 7/11/88 MR. WARHAFT: The drive goes up to the top and then there is an area, a shared area at the top and that could withstand (unintelligible) . Also as it happens, although my drawing doesn't perhaps clearly show it, the steepest part is the part going from the sidewalk to the road. MR. WEAVER: Mr Chairman, this is really something that - in my mind - must be approved by the Engineer and it just seems to me that we - the appellant and the Engineering Department end up with a sketch that they have approved - I 'm reluctant to have this attached to a request. . . . CHAIRMAN TOMLAN: Which piece are you pointing to Charlie? MR. WEAVER: All three of them. To a request and it doesn't completely satisfy me that we have an acceptable design in front of US. I don't think that. . . . CHAIRMAN TOMLAN: You don't think the sketches are (unintelligible) . . . MR. WEAVER: That quickie note doesn't really impress me as something that we would like to look back at in a year or two. CHAIRMAN TOMLAN: A conditional variance perhaps? MR. SIEVERDING: Approve it and send it to the City Engineer subject to the . . . . MR. WEAVER: Subject to his final approval? MR. SIEVERDING: Of the design. ACTING SECRETARY DIETERICH: The problem was that the Ordinance was written with a specific requirement - we had to send it down to the City Engineer - the City Engineer didn't want to deal with it because the Ordinance was specific, so he felt that the Zoning PAGE 16 BZA MINUTES - 7/11/88 Board would have to have the chance to grant a variance from the specific requirements and I think probably the thing to do then is to go that way, but with the stipulation that the Engineer's office may deal with the final outcome or make recommendations on the final outcome. CHAIRMAN TOMLAN: That doesn't make me too happy. MR. PECK: In other words we grant a variance from the 3% - 10% before the Engineer is willing to deal with it. . . CHAIRMAN TOMLAN: That's right. MR. SIEVERDING: And just let the Engineer deal with what the specific grade is going to turn out to be. CHAIRMAN TOMLAN: Sure. ACTING SECRETARY DIETERICH: He felt he didn't have the jurisdiction. MR. PECK: He is on either - is the problem, that is what Charlie is saying, right? MR. WEAVER: Well part of the problem, but another part of the problem is that in my experience they don't tinker with that sidewalk grade without approval of the City Engineer and here is a City Engineer in a handwritten note suggesting that they change it by a foot. Okay - put two steps in the general use of that sidewalk, which, even though it does end up out in the woods, I think there is evidence that there is substantial foot traffic there and I just say that if you are going to go along a concrete sidewalk and suddenly have two steps - that this Board and the appellant need clear approval of those two steps and some idea of what tread riser ratio ought to be and so on before he gets a new PAGE 17 BZA MINUTES - 7/11/88 driveway and someone attacks the details of the granting. I 'm uneasy with the paper trail in this appeal - not because I think he can do any damage to the driveway - God knows, you are bound to help it - but that the other thing is that there is a sidewalk down through there where the City has very clear regulations and protects those regulations against all comers. MR. OAKLEY: So, Charlie, are you suggesting that maybe the way to do this - the City Engineer's problem is that he essentially doesn't want to start passing out what is and what is not an acceptable. . . . MR. WEAVER: I don't hear a refusal by him - he doesn't want to get into the design of a sub-standard driveway - sub-standard by City Ordinance, okay? Our Ordinance. And I don't argue with him at all, I would like him, however, to approve in rather specific form the design of that site and sidewalk. MR. OAKLEY: That is what I was asking, so what you want City Engineer approval for the alterations to the sidewalk - we grant the variance for the driveway? MR. WEAVER: Right. CHAIRMAN TOMLAN: Well I 'm glad we got that worked out. MR. WARHAFT: Could we just go through. . . . MR. OAKLEY: Okay, what Charlie is suggesting is that because the sidewalk is in some sense a City responsibility, that the particular design of the steps, to make sure that they aren't .too - the risers aren't too high or treads aren't too narrow - should be approved by the City Engineer - it has nothing to do with the Ordinance about driveways. It has to do more with the safety of PAGE 18 BZA MINUTES - 7/11/88 the sidewalk. And that we will grant the variance or the (unintelligible) and the City Engineer will then not have to get involved in deciding what is and is not a safe grade for a driveway, since they have already decided that this isn't a safe grade for a driveway. MR. WARHAFT: So what does that entail on my behalf? MR. OAKLEY: On your behalf it means that you have to go to the City Engineer and say, I want these steps to go up six inches and over eight inches and the City Engineer has to look at that and say, I like that - that's a good step and he doesn't have to look at the driveway at all. Is that. . . CHAIRMAN TOMLAN: It seems like, as though you'd have a clear path to follow, that we are not giving you a run-around in bureaucracy. MR. WARHAFT: Well, let me express some concern about this whole thing. I 've been a few months on this now - I 've written in my appeal - I 've got a chronically ill son and I 've got lots of concerns because of that - he has to go to Syracuse for blood transfusions very frequently and I 'm a little upset by the bureaucracy. I 've been a couple of months working on this. As I said before the top does not end anywhere - (unintelligible) a very, very dangerous jump near the Gun Factory - anybody would cripple themselves immediately if they ever attempted to walk along that path without thinking. It seems not unreasonable request and I 'm a little upset that I have to do yet more bureaucratic - which especially in view of the fact that a little - for the downstreet - in a few weeks apparently ninety-six apartments are going to be built without having to get any variance whatsoever at the Gun PAGE 19 BZA MINUTES - 7/11/88 Factory car park and no doubt that the builder there will do what he likes to the sidewalks when he constructs them because apparently no variances were required. Perhaps that's beside the point but it makes me feel that perhaps things are getting a little bureaucratic when I have to go through so much paper work to do a minor job that will not detract and not upset the (unintelligible) . MR. WEAVER: Sir, while you are giving us what's for, we could take your application as it is right now and I will vote against it because I will not vote for what appears to be an approval of two steps in the rung of a public sidewalk. I 'll introduce you to some of the people that have wheelchairs that are very sensitive to any new construction that doesn't provide for them and you are looking forward to more construction in the neighborhood - raises the question of exactly where - the final house down there has sidewalk in front of it, even though it is not in very good shape and what happens to that is an obligation - if the City wants to give up the sidewalk way up at the corner - it's all right with me, I don't have any particular interest but I do have a sensitivity to what the City has allowed in public sidewalks and what it has not and not withstanding the possibility that the City be liable for what happens from then on. It is not just your driveway that is involved. MR. WARHAFT: (UNINTELLIGIBLE) I just made my comment. MR. WEAVER: Yes. I wanted to explain why we were being so bureaucratic. PAGE 20 BZA MINUTES - 7/11/88 CHAIRMAN TOMLAN: Further questions from members of the Board? [none] We now understand, at least, the nature of what is being asked. Very good, thank you. We' ll move along. MR. WARHAFT: What is the decision? CHAIRMAN TOMLAN: I 'm going to ask for more comments from the audience. If you'll just have a seat in the back. 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] That being the case, it is ours. DELIBERATION ON APPEAL NUMBER 1854 FOR 111 LAKE STREET CHAIRMAN TOMLAN: Do we want to put the condition on, Charles, or do we not? How do some of the rest of you feel? MR. OAKLEY: I 'm not as hostile (unintelligible) as Charlie is. And so it is not clear to me that the City Engineer hasn't made his statement. CHAIRMAN TOMLAN: Well I think these are suggestions, I would point out John - they are not pre-requisite to construction. MR. OAKLEY: Right. MR. SIEVERDING: Nor are they suggestions that are detailed enough where some of them have to be taken and put together a set of prints and give them to a contractor and get the thing built (unintelligible) satisfied with it though. My sense of it is that we could actually grant him the area variance for the grade with the condition that he go to the City Engineer and that they work out the specifics of the design for the sidewalk and where they join between the sidewalk and that driveway is going to occur. And PAGE 21 BZA MINUTES - 7/11/88 that they will only get a building permit to make the improvements, once the City Engineer has put together. . . MR. OAKLEY: I think we can probably do that. . . CHAIRMAN TOMLAN: We are putting the onus on the City Engineer? Or putting the onus on the property owner to come up with those prints? I just want us to be clear. MR. SIEVERDING: The property owner has to come up with the prints that would have to be approved by the City Engineer. CHAIRMAN TOMLAN: Okay. If you are going for a condition, I just want the onus to be clear as to who takes the next step. Jack any thoughts? MR. PECK: Well I have to agree with Charlie a little bit. The picture we have here - while he may not have intended it to be that way, shows a dip in the sidewalk of a foot for the length of the driveway (unintelligible) and it pops up again somehow. There are lots of questions - are they going to tear up the rest of the sidewalk below it, on down the street and make it all that same level? Is there going to have to be major sidewalk work done here in order to fix this so the driveway can work? Obviously the grade is going to be (unintelligible) I mean, it is the grade. . . CHAIRMAN TOMLAN: He is not going to move the mountain easily. MR. PECK: He is not going to move the mountain, that's right. But I think Charlie's question about the sidewalk is a good one and I - personally in reading what the Engineer says, I don't quite understand - "the stairs may also be used inside the property lines to flatten the driveway slope" - does anybody understand what that means? PAGE 22 BZA MINUTES - 7/11/88 MR. OAKLEY: I think he is suggesting stairs up to the house. CHAIRMAN TOMLAN: You think? I 'm just playing devil 's advocate here. MR. PECK: I don't know that that's so. MR. OAKLEY: (UNINTELLIGIBLE) MR. SIEVERDING: I think the point is, the City Engineer has some very definite ideas on what the relationship of that driveway and sidewalk ought to be and it seems that our particular area in this case concerns the rate of (unintelligible) . . . and it seems to me that we could grant the variance to exceed that grade - have them put together plans that incorporate the City Engineer's suggestions and that those plans be approved by the City Engineer prior to the issuance of the building permit. And it seems to me that in the process of that approval the City Engineer will see to it that that sidewalk is put together in a fashion that is safe and accessible and is not going to be disruptive to the people who are going to be walking by and I 'm reasonably cautious taking that approach without making this guy come back. . . MR. PECK: Oh, I don't want him to come back either. MR. OAKLEY: He is going to have to go back to the City Engineer. MR. SIEVERDING: Right. CHAIRMAN TOMLAN: Charlie, any further thoughts? MR. WEAVER: No. CHAIRMAN TOMLAN: Do we have a motion? PAGE 23 BZA MINUTES - 7/11/88 DECISION ON APPEAL NUMBER 1854 FOR 111 LAKE STREET The Board of Zoning Appeals considered the request of Zellman Warhaft for an exception from the requirements for maximum grade of a driveway in Section 30. 37-A3 of the Zoning Ordinance to permit the reconstruction of an existing driveway. The decision of the Board was as follows: MR. SIEVERDING: I move that the requested exceptions from the maximum grade of a driveway requirements in Section 30. 37-A3 of the Zoning Ordinance be granted subject to the condition that the appellant prepare a set of drawings detailing how that driveway is to be constructed and what the relationship of that driveway will be to the sidewalk; that those drawings incorporate suggestions made by the City Engineer in his memo of June 20, 1988 and that those plans receive the City Engineer's approval prior to the issuance of the building permit to construct the improvements. The City Engineer's responsibility will be limited to approval of the general design of the driveway and the relationship of the sidewalk to the driveway only. MR. PECK: I second the motion. VOTE: 4 YES; 1 NO GRANTED W/CONDITION PAGE 24 BZA MINUTES - 7/11/88 FURTHER DISCUSSION WHICH TOOK PLACE AFTER THE MOTION ON APPEAL NO. 1854 WAS MADE BUT BEFORE THE VOTE WAS TAKEN: MR. OAKLEY: I think (unintelligible) requires City Engineer approval for the driveway and the sidewalk. ACTING SECRETARY DIETERICH: You are giving the City Engineer latitude to exceed the grade so he has some latitude to work beyond what the Zoning regulations say and he has to be able to (unintelligible) the sidewalk, that's my understanding. MR. SIEVERDING: The sidewalk only? ACTING SECRETARY DIETERICH: With the sidewalk only. He has the latitude to - you are giving the City Engineer latitude to work beyond what the Zoning Ordinance says in the direction of the driveway and he will give specific information as to what should be done with the sidewalk - that was my understanding. MR. OAKLEY: That's the way it sounds to me. CHAIRMAN TOMLAN: Charles? MR. WEAVER: First of all, we have an application to vary from the precise standards of the Ordinance as it applies to driveways. CHAIRMAN TOMLAN: Let's discuss that a little bit, could we for just a second - because I 'm a little troubled by the fact that we have said it's fine to do whatever we want with that driveway, in essence - by virtue of the slope. I mean, the way in which the motion reads, that, in essence, could be the result. MR. WEAVER: Two things - one, the apron is a matter of public concern. CHAIRMAN TOMLAN: I 'm not concerned with the apron, I 'm talking about the driveway. PAGE 25 BZA MINUTES - 7/11/88 MR. WEAVER: And the driveway above that, in that particular space, a shared driveway, it seems to me that the appellant can meet his own desires without having any negative influence upon the neighborhood. The thing that I want expressed rather precisely is that the City Engineer approve the grade and design of the sidewalk. CHAIRMAN TOMLAN: Well that seems to be the intent, certainly, of his message to us. MR. OAKLEY: His message to us. . . I mean we could, presumably, alter the problem that you have by saying that we grant him a permit to decrease the slope of the driveway. And, however much he decreases it, at any particular point - that is up to him. . . MR. PECK: He is not going to decrease the slope of the driveway though - of the apron - the driveway is going to get steeper. . . CHAIRMAN TOMLAN: That's - I want to be sure. . . MR. PECK: . . . lower that sidewalk a foot - he can keep the top end the same - driveway. . . MR. OAKLEY: He is not talking about steeper. . . ACTING SECRETARY DIETERICH: Transition. . . transition is the question. CHAIRMAN TOMLAN; You see, yes, exactly. If it is the case that the slope of the driveway gets less, fine. But I 'm not sure about that. We drop the sidewalk - there ain't [sic] no way - unless we alter the upper side of the drive. . . MR. OAKLEY: You've got to alter the upper side of the driveway, yes. PAGE 26 BZA MINUTES - 7/11/88 CHAIRMAN TOMLAN: Well, that's what bothers me because the Ordinance is clear that we have a responsibility with respect to the slope. Not to make it worse - it is essentially the extension. . . MR. OAKLEY: Right. Should we be calling the appellant back up here and ask him? CHAIRMAN TOMLAN: In my own feeling, personally, no. If you all feel as though you would like to, I 'm perfectly willing to go ahead with that but I want us to be clear first with what we - if we are going to go after conditions, we are the ones who are making the conditions. MR. SIEVERDING: Am I getting the sense here that you are not too enthused with the City Engineer taking a look at the slope of that driveway and whether or not that's an appropriate slope or not. CHAIRMAN TOMLAN: The City Engineer doesn't have anything to do with the slope of the driveway. The City Engineer has to do with the sidewalk. I think if you are - in my mind - for me to vote with you, I have to have something in there about reducing the slope of the driveway. That's our responsibility. You haven't specifically said that - you essentially said that anything goes with the slope in that driveway. MR. SIEVERDING: Subject to the City Engineer's approval. CHAIRMAN TOMLAN: Yes, well City Engineer's approval is outside the bounds. MR. SIEVERDING: Okay. CHAIRMAN TOMLAN: That was my problem Charles, with the motion the way in which it was made. Which doesn't exactly address your PAGE 27 BZA MINUTES - 7/11/88 questions. Under 30. 37-3 gives you the driveway - gives you the illustration for the driveway. MR. WEAVER: I know it does and without a set of plans, it is not obvious - but Jack's comment is very well taken - that the upper drive will get worse instead of better. CHAIRMAN TOMLAN: That's right, that's my point precisely. MR. WEAVER: Well, my point is - I wonder if - as a Board of Zoning Appeals - making an exception - at what point do we say this is too steep or not steep enough? We have one in 30. 37. . . it is on page 30.2. . . CHAIRMAN TOMLAN: Right 30.2a is the page. MR. WEAVER: That the three percent maximum grade indicating - apparently starts at the property side of the sidewalk. . . ACTING SECRETARY DIETERICH: The transition. . . MR. WEAVER: And we are going to grant an exception to that - give permission to exceed it. ACTING SECRETARY DIETERICH: The transition is considerably more. . . MR. WEAVER: However, please look at the same sketch where we in Ithaca are not terribly worried about a ten percent grade, once you are twenty-five feet away from the street - now, I didn't make the drawing - I don't know for sure what they had in mind but there is lots of room here to make a judgement on a specific property and I just as soon not say that twelve is fine - thirteen is unacceptable - or anything of the sort and that - the only thing that I particularly care about - frankly - and I think is of great concern to the City - is that someone in authority and with more knowledge than I - approve the design of that sidewalk. And his approach to PAGE 28 BZA MINUTES - 7/11/88 it is not necessarily the wrong approach - his approach is not to cut it down by a full twelve inches at the south edge of the driveway - rather to make a double ramp out of it, so that you not only get down in the hole but get back out by means of a ramped sidewalk. Maybe that's acceptable, although we have a preference indicated on the note. If the Engineer were asked if you could do it, or can't you - talking about the sidewalk and not about the driveway, we might get a different answer than this memo - do you see what I 'm talking about Peter? I don't blame him for not wanting to get into the design of the driveway - that's the appellant's problem - come in with a set of plans for what it is he wants to do. ACTING SECRETARY DIETERICH: The big problem here is the transition, I don't think it is so much the driveway itself as the transition from the driveway - this is a short distance - only about sixteen, some odd feet from the driveway to the street and according to the drawings - it has about a four foot rise - so its quite a. . . MR. WEAVER: It's extreme - no question about it. ACTING SECRETARY DIETERICH: Quite a large. . . MR. WEAVER: And I question whether it will be an adquate cure but that's his driveway - not ours. I don't see that it will do any public damage for him to build a sub-standard one in that particular location. But I do think it is a matter of public concern - that the driveway meet some reasonable standard of design and dimension and grade, particularly. PAGE 29 BZA MINUTES - 7/11/88 MR. PECK: We have no indication what the grade of the driveway is except that it is very steep. CHAIRMAN TOMLAN: Very true. Herman? MR. SIEVERDING: If we were to modify that such that the City Engineer's responsibility be limited to approval of the design and grade in relationship of the sidewalk to the driveway only. . . CHAIRMAN TOMLAN: Does the seconder accept that? MR. PECK: I don't know - that's really not my problem - I don't have a problem with that - my problem is taking a grade that is already very steep and making it worse by dropping the sidewalk. And it seems to me that is our problem - the ten percent maximum grade after the sidewalk, as well, because that is part of the Zoning Ordinance, right? Yes, it is. CHAIRMAN TOMLAN: Yes it is. MR. WEAVER: Granted, Jack, and I believe that what we are approving will create a situation in the upper driveway - once you cross the sidewalk - that will be less acceptable than it is now - but I 've lived with Williams Street and a few other streets that - although they are etched in history and geology - this is to in a very minor way. He is in a terrible location to build a decent driveway - he would need an elevator or something to get something that is really appropriate - so if I say rather carelessly that I don't care what the driveway looks like as long as it makes him happy - I 'd be glad to grant that - figuring that it is a one household or a two household condition that they are creating but that the City's concern here - the approach to the sidewalk could also be the approach to the street - would be improved in either PAGE 30 BZA MINUTES - 7/11/88 case. That is desireable and that the sidewalk meet some kind of standard of design - okay? That's how I differ. . . MR. PECK: Yes. Yes, the seconder accepts. CHAIRMAN TOMLAN: The seconder accepts. Are you satisfied? MR. PECK: Yes. CHAIRMAN TOMLAN: I mean, I 'm not, but I 'll let you know that right now. I 'm not. MR. PECK: I accept it - I didn't say I wholly approve. CHAIRMAN TOMLAN: Right. Okay. That's what I wanted, thank you. Further discussion? I mean, my own personal druthers - if I had my druthers I would send this thing back and say, put together some proper surveyed instruments, essentially create a (unintelligible) map and do proper site drawings - then we would be able to understand things a whole lot more clearly and we wouldn't be sitting here. . . MR. OAKLEY: I 'm not sure that that would actually solve it for us. CHAIRMAN TOMLAN: It would certainly tell us what we are dealing with other than just a steep slope. . . MR. OAKLEY: Yes, but I 'm not sure the information would be enormously useful or make that much difference. I mean we know what we've got here - this is a very bad driveway which the owner wants to adapt in such a way that he thinks would be better and it is not clear to me that - you know - I have no idea whether - what exactly is an acceptable slope for a driveway (unintelligible) . . CHAIRMAN TOMLAN: I 'll withdraw my comment. Shall we bring this to a conclusion of some sort? MR. SIEVERDING: Let's vote. PAGE 31 BZA MINUTES - 7/11/88 CHAIRMAN TOMLAN: A vote? MR. WEAVER: This is 1854? CHAIRMAN TOMLAN: 1854, right. ACTING SECRETARY DIETERICH: Appeal Number 1854 - there are four votes in favor and one against. CHAIRMAN TOMLAN: So Appeal Number 1854 is granted with the conditions. MR. WARHAFT: Will I be notified in writing of that? CHAIRMAN TOMI": Yes, you will receive a letter in the mail - probably within the next week. PAGE 32 BZA MINUTES - JULY 11, 1988 ACTING SECRETARY DIETERICH: The next appeal is APPEAL NUMBER 1855 FOR 735 WEST CLINTON STREET (ITHACO) : Appeal of Ithaco, Inc. , for an area variance for deficient front yard setback under Section 30.25, Column 11 of the Zoning ordinance to permit the construction of a 4, 500 square foot addition to the existing industrial building at 735 West Clinton Street (Ithaco, Inc. ) . The property is located in an I-1 (Industrial) Use District in which the existing and proposed use is permitted; however, under Sections 30.49 and 30. 57 the appellant must first obtain an area variance for the deficient front yard before a building permit or certificate of occupancy can be issued for the proposed addition. CHAIRMAN TOMLAN: Anyone from Ithaco here? Come forward please and have a seat. Good evening. If you would begin by identifying yourself, where you live. . . MR. ANGER: My name is Richard Anger, I 'm the Plant Manager at Ithaco and I live at 5 Lansing Heights Road in Lansing, New York. CHAIRMAN TOMLAN: And you are expanding or proposing to expand. MR. ANGER: We have to expand. Before we go any further, there is a correction. That address is 735, not 737 and all of our documents said 735 - I 've been looking to see if I goofed somewhere. . . MR. WEAVER: On the actual appeal it is 735. PAGE 33 BZA MINUTES - JULY 11, 1988 CHAIRMAN TOMLAN: We are right - the public notice seems to be wrong. But I don't think there is anything close by that we could mistake Ithaco for. . . MR. ANGER: No. CHAIRMAN TOMLAN: Okay. Do you want to say a few words about why you want to put that particular addition on the front of your building? MR. ANGER: Well the problem that we are having at Ithaco, is that we are rapidly expanding - we have been in that location since 1969. We need more floor space. What we plan on doing with this addition is to move office area into there because we are a high tech industry - we need a lot of office space. By moving office space from the present building, it opens up more manufacturing area for us. The other reason that we want to do the expansion on the Cherry Street - being that we were the first building in there, we had no one to set any standards for us, as to what modern architect or anything else looks like. Now the Cherry Street Industrial Park is expanding, we look twenty years old, compared to the other buildings that are in there, so along with this addition, we hope to be able to dress up the facade of the building. CHAIRMAN TOMLAN: Do you want to say, perhaps, a few words about the interior arrangement of the main building - and I 'll not lead you down a blind road without telling you why I want to know that - what you are asking for, essentially, is bring that addition out to - almost as far as you can conceivably go without going on the road, and what I 'd kind of like to know is, why that addition PAGE 34 BZA MINUTES - JULY 11, 1988 couldn't be placed elsewhere on the lot with respect to the existing building? MR. ANGER: From the existing building to the Cherry Street side boundary is about thirty-eight feet and that boundary is still about seventeen feet back from the curb. So I am asking for thirty-five of the thirty-eight, which leaves the boundary back about fifteen to seventeen feet. Rather than go out the south side of the building - which is the only other way that we could expand - in the future plans, as the plant has to expand that's the way that we would choose to go and some of the plans that we have looked at - there would be as much - almost doubling the size of the main building, but we aren't ready to do that yet. CHAIRMAN TOMLAN: Let me play devil 's advocate - why not go half way there now and then a little later add another piece? MR. ANGER: The one thing that it won't do for us, is dress up our street-side, if we come out the back end of the building, the front on both Cherry Street and Clinton Street sides are still going to look the same as they are now. The main entrance to our building is now on the Cherry Street side and that's where we would like to keep it rather than having people come around in the back of the building to an entrance. CHAIRMAN TOMLAN: Questions from members of the Board? MR. WEAVER: Yes. Can you be more specific on where that new entrance will be? MR. ANGER: The new entrance would be about where the present entrance is - only moved out. It wouldn't be out thirty-five feet from the new entrance because, as you can see on the plan there, PAGE 35 BZA MINUTES - JULY 11, 1988 the entrance presently is off-set from the building - out towards the road. MR. WEAVER: It won't be, in the new plans? MR. ANGER: No, it would be straight across the front, the whole hundred and twenty-nine foot length of the building would be one flat surface. MR. WEAVER: It looks to me as if the trees will remain. MR. ANGER: Yes, we have no intention of touching the grass - we won't even come to the end of the blacktop if this variance is granted - I believe there will still be - as you can see, the boundary line - one of my problems is the boundary line is on a caper. When they put in the new Cherry Street they - where it used to be cut straight it is sort of angled and there was some swapping back and forth between the City and Ithaco and small triangles of land for what they took off of one side of the street and swapped that for the other. What we are looking for is to get as much room out of that side as we can possibly get so that in the future when we come off of the back end of the building, we can come with a substantially larger addition. Parking areas, as they presently stand, as you can see, we own almost two acres across the street plus everything that is blacktopped, as you can see in your blue parts on your map there, and it also has a number of presently marked out parking spaces in there, which is adequate for the number of people that we have today. But with the way that the business has been taking off, what we are looking at in the five year plan is monstrous growth, is all I can say - very substantial. Right now we are busting at the seams. PAGE 36 BZA MINUTES - JULY 11, 1988 CHAIRMAN TOMLAN: How did you calculate the square footage for the new addition? How did you arrive at the 4, 500 square foot? MR. ANGER: I took thirteen hundred and forty-nine and came out short of the property line. CHAIRMAN TOMLAN: I see. MR. SIEVERDING: So you are actually building right out to the property line? MR. ANGER: It is actually - the best you can tell when you measure it - it is supposed to be thirty-seven plus or minus - so I backed off at thirty-five so I wasn't (unintelligible) at thirty-seven. From what the surveyors tell me, plus or minus is within a foot. MR. SIEVERDING: And that would be right to the edge of the street right-of-way, at one point? MR. ANGER: It would be within two feet of it. MR. SIEVERDING: Of the street right-of-way. MR. ANGER: Yes, that's the property line, is that what you are referring to? MR. SIEVERDING: Yes. MR. ANGER: The main concern that I had about being that far was if it were to struck (sic] when people come to the stop sign but with the angle of the road today, that is not the problem because you have to come way out in there because of the way the road comes from the other direction. MR. SIEVERDING: The right-of-way actually tapers as well, right? In other words, the seventeen feet that you refer to is that seventeen feet to the right-of-way or seventeen feet to the curb? PAGE 37 BZA MINUTES - JULY 11, 1988 MR. ANGER: I 'm saying that it's about fifteen to seventeen feet to the curb from the boundary line. That's what I (unintelligible) CHAIRMAN TOMLAN: Further questions from members of the Board? MR. OAKLEY: So your reason for not building to the south side which is the side that has the obvious room, are one, that you plan to building on the south side. . . MR. ANGER: We have plans drawn for that which we had done quite a while ago. . . plus one of the other reasons for right now is the amount of utilities that would have to be pulled out of there because when we do come to the south - you've got sewage, power and everything else that is coming in on the south side of the building, that's where everything is located right now. MR. OAKLEY: So you've got to dig up your current utilities if you were going to build. . . MR. ANGER: If we come out the south side, we are going to have to move everything, yes. MR. OAKLEY: And your reason for building on the space that is (unintelligible) Corporate image - I mean the other side of that would be to improve the image of your building. . . MR. ANGER: That is one of the considerations, yes. MR. OAKLEY: I 've one question about the accessibility. It seems to me that most people who are parking at the business, are actually going to have to walk around the building to get to your entrance. . . MR. ANGER: There will be no more parking - well there is no parking in front of the main entrance right now - the visitor parking is off to the left hand side as you look at it. What we have to do is PAGE 38 BZA MINUTES - JULY 11, 1988 rearrange the parking on the south side right now and the new visitor's parking would either be there or across the street. MR. OAKLEY: Okay. CHAIRMAN TOMLAN: Further questions? [none] Thank you. Is there anyone else who would like to speak in favor of granting this variance? [no one] Is there anyone who would like to speak in opposition? [no one] The case is ours. PAGE 39 BZA MINUTES - JULY 11, 1988 DECISION ON APPEAL NUMBER 1855 FOR 735 WEST CLINTON STREET The Board of Zoning Appeals considered the request of Ithaco, Inc. for an area variance to permit the construction of a 4, 500 square foot addition to the existing industrial building at 735 West Clinton Street. The decision of the Board was as follows: Appeal Number 1855a: MR. SIEVERDING: I move that the Board grant the area variance requested in Appeal Number 1855. MR. WEAVER: I second the motion. PROPOSED FINDINGS OF FACT: 1. Given the area of the lot and Ithaco's expansion plans, there are a limited number of opportunities to create the office and conference space that the Company desires. 2 . Both of these opportunities on the north and west side would create deficiencies and the deficiencies on the west side would be less than on the other alternative that is available. 3. The proposed expansion would not decrease the number of parking spaces available for employees and visitors. 4. Siting the addition in this fashion still maintains a setback from the street. 5. The variance would observe the spirit of the Ordinance and will not change the character of the district. VOTE: 3 YES; 2 NO MOTION FAILED; LACK OF 4 AFFIRMATIVE VOTES Appeal Number 1855b: MR. OAKLEY: I move that the Board deny the area variance requested in Appeal Number 1855. MR. SIEVERDING: I second the motion. PAGE 40 BZA MINUTES - JULY 11, 1988 PROPOSED FINDINGS OF FACT: 1. The proposed addition creates a substantial deficiency in the front yard. 2. The applicant has not demonstrated sufficient practical difficulties to justify this extreme exacerbation of the deficiency. VOTE: 3 YES; 2 NO MOTION FAILED; LACK OF 4 AFFIRMATIVE VOTES PAGE 41 BZA MINUTES - JULY 11, 1988 FURTHER DISCUSSION BY THE BOARD ON APPEAL NUMBER 1855 WHICH TOOK PLACE AFTER THE MOTION ON 1855A WAS MADE AND SECONDED BUT BEFORE THE VOTE WAS COUNTED: MR. PECK: I'm not sure I agree with all of that Herman. I mean, why have minimum setbacks in an Industrial District anyway? When was the last time we approved anybody going one percent deficit in other districts? MR. SIEVERDING: Well, Ithaco was there before the Cherry Street Industrial Park was put into place and all the design - all the setback requires (unintelligible) his building is in nonconformance, it was created after the structure was put there. MR. PECK: You are going from a. . . MR. SIEVERDING: You are creating a hundred percent deficiency on the site, yes. MR. PECK: (UNINTELLIGIBLE) deficiency to a hundred percent deficiency. . . . would probably choke on a horse to do that in a residential neighborhood and I 'm just wondering if we are getting a little callused with the Industrial Park here in doing something that we wouldn't do elsewhere because it doesn't bug us that much. I 'm asking for myself. . . (unintelligible) MR. SIEVERDING: No, I just thought. . . MR. PECK: . . . I guess I feel the same way that you do actually, again, why have minimum - why have setbacks in an Industrial area that we have to abide by anymore than we do in a residential area? CHAIRMAN TOMLAN: I 'll bring up a broader question with respect to upcoming and past cases - why do we need side yards at all, either, in commercial districts? Why do we need rear yards in commercial PAGE 42 BZA MINUTES - JULY 11, 1988 districts - industrial districts? I mean, I 'm raising the same issue. MR. OAKLEY: I 'd like to make a slightly modified comment. If the yards are sort of - in part - an aesthetic judgement, I would be much happier seeing what this - not just an improvement in the aesthetics of the building - is going to be. But I 'm not sure that it would convince me but I would certainly be more likely to be convinced if I had a full elevation of the (unintelligible) . . . CHAIRMAN TOMLAN: That's an interesting way of looking at the world, I 'm sure. . . MR. OAKLEY: I'm not sure what side yards - side yards obviously provide certain isolation and protection from insurgent liability and so forth, but I suspect that in an Industrial District there are also created (unintelligible) aesthetic aspiration. CHAIRMAN TOMLAN: Maybe the Fire Commissioner, or ex-Fire Commissioner, might say something. MR. WEAVER: Well I think probably some of this - for the same reason that this wasn't a ninety degree angle, someone with a drawing board had a chance at it when it was raw land. It does seem to me that if - in an industrial district if a front yard is going to serve some neighborhood - some community benefit, that it would be for reasonable visibility from neighbors. In this particular case there is some land beyond it that, it seems to me, to be obviously arranged as a departure from Conrail rather than from any other line and that it would be reasonable to expect that any development will not be blocked by this proposed addition but rather any new building in the lot beyond it - in other words - PAGE 43 BZA MINUTES- JULY 11, 1988 south of Ithaco's holding - would be out where everybody would be able to see it quite well, beyond the end of the old former Cherry Street. As I see it, it doesn't obstruct the intersections or doesn't appear to and will not obstruct possible development beyond it in the dimensions now provided. But why we have the number of setbacks in Industrial Zone is beyond my (unintellible) . . . MR. OAKLEY: I mean we. . . MR. WEAVER: That's not for me to. . . MR. OAKLEY: We are (unintelligible) not extensive, but for one we do have already regulations on visibility at intersections which I assume the Building Inspector has checked to make sure that this doesn't violate those, and for two, not so very long ago at Cherry Street, we passed a rather complicated variance on the outside display of industrial products in which clearly our attempt was an aesthetic one, and so clearly we do have (unintelligible) aesthetic considerations. I don't think that we should simply assume that the City Council, in its wisdom, has decided to abandon aesthetic considerations (unintelligible) Industrial Parks. I know that your opinion of the City Council is such that you will probably agree with that even though you may not agree with them. MR. WEAVER: The tree line - the existing tree line - the depth of their holdings indicate that this - I don't see how it can possibly do any mischief to the site line of any existing or proposed development. And a final thing - that's why we are a Board of Zoning Appeals - so that we can do business in town and that somebody that's cranked up and growing will be able to occupy our Industrial Park rather than having it just a Park for the PAGE 44 BZA MINUTES - JULY 11, 1988 foreseeable future. I 'd like to see it full of buildings - dirty old factory buildings for that matter. MR. PECK: You almost convinced me Charlie and then you didn't convince me. MR. SIEVERDING: But I think - the main point really being that access to the street and visibility at the intersection. . . I think nothing would be jeopardized by the expansion outward toward the property line. MR. OAKLEY: I think that those things would forbid a variance. I mean the real question to me is whether he has shown practical difficulty in locating the building to the south and I don't know enough about moving utilities and so forth. ACTING SECRETARY DIETERICH: I think the Zoning Ordinance only talks about residential districts where you have a twenty-five foot setback required in the corner of the property - in visibility and it doesn't talk about it in commercial zone because in business zones - not an industrial zone but generally business zones it allows a building right - in some business zones - it allows the building right up to the property line - so that's really not a question - only in residential zones. MR. OAKLEY: Are there practical - has he made a case for practical difficulties on the south side? CHAIRMAN TOMLAN: Well I 'd like to explore that a little further. The reason for not really building off on that side was the fact that there were some proposed plans for moving in that direction at some point in the future. MR. OAKLEY: And that there are existing services in some ways. . . PAGE 45 BZA MINUTES - JULY 11, 1988 CHAIRMAN TOMLAN: And that there are existing services. MR. OAKLEY: And I 've never dealt with industrial services. In a home owners case I would be fairly skeptical but I suspect they get considerably more than a small sewer line. And depth? CHAIRMAN TOMLAN: Are those sufficient practical difficulties? I think that's really the question. MR. OAKLEY: In many ways I would like to see a more detailed application on that. MR. WEAVER: Are you willing to call the appellant back and ask some of your questions or have you heard all that you will from him? MR. OAKLEY: I did ask some of my questions - I did get the feeling that further questions weren't going to enlighten me any more. There is a limited amount that you can do (unintelligible) it seems to me. If you think that he will be able to answer those questions I 'm willing to have him called back but I began an exploration of that - I thought I had gotten as far as I was going to get. . . CHAIRMAN TOMLAN: Does the maker of the motion have any thoughts along those lines? I am leaving it to you by virtue of the fact that you initiated it. MR. SIEVERDING: Right. I would be open to asking the appellant to come back and address those issues and the alternative, it seems to me, would be postponing it until he gets a set of floor plans and a site plan that shows where, in fact, that expansion is going to take place. I happen to have seen - there is an expansion plan going out to the south - I can see where they are coming from in terms of wanting to place the office on that end of the building because that's where the existing office is. To turn it around I PAGE 46 BZA MINUTES - JULY 11, 1988 think may create some havoc with the floor plan and circulation within the building itself. CHAIRMAN TOMLAN: You are ahead of us. Jack, what are your thoughts? MR. PECK: I don't see that he should really come back (unintelligible) My question was more of a mischievous one than anything else (unintelligible) . It is just that we seem to be jumping in very quickly into a different ball game here with this Industrial Park and we would be (unintelligible) would respond. . . (unintelligible) and my question was why do we want forty-one foot setbacks in an Industrial Park? He answered that but I really didn't expect anybody to be able to either - I admit it's a big space out there - there's no question about that. MR. WEAVER: Well what you are stuck with is balancing the adequacy of the practical difficulties against your feelings of loyalty to the Ordinance in this specific case. MR. PECK: Yes, that's right. MR. WEAVER: And if you are not convinced that that's the most important item. . . CHAIRMAN TOMLAN: Do we want to vote? Do we want further discussion? Ready to go with the vote? ACTING SECRETARY DIETERICH: Appeal Number 1855 has 3 yes votes; 2 no votes. . . CHAIRMAN TOMLAN: So that particular motion fails. Shall we try another motion? MR. WEAVER: We have to have another motion. CHAIRMAN TOMLAN: That's right. PAGE 47 BZA MINUTES - JULY 11, 1988 MR. WEAVER: So the negatives need to form some kind of a motion. CHAIRMAN TOMLAN: So the negatives have to form some sort of motion. Well does it revolve around, in part, practical difficulty? MR. OAKLEY: It does in one case anyway. But I don't know how to say it. CHAIRMAN TOMLAN: Well - best that you start off with - you move that. . . and we'll deal with the rest as we move along. MR. OAKLEY: I move that appeal 1855b be denied. Findings of Fact: The proposed addition creates a substantial deficiency in the front yard and (2) the applicant has not demonstrated sufficient practical difficulties to justify this extreme exacerbation of the deficiency. I think that covers it and I 'll move the motion. CHAIRMAN TOMLAN: A second? So that we can move along. MR. SIEVERDING: For voting purposes? CHAIRMAN TOMLAN: We have to have a second for voting purposes. MR. SIEVERDING: I 'll second the motion. CHAIRMAN TOMLAN: Any further discussion? MR. PECK: Yes. This is the first time this has happened since I 've been on the Board. What are we doing? CHAIRMAN TOMLAN: All right, that's a very good question. What are we doing? In order to grant a variance we have to have four votes, okay? We did not have four votes. . . MR. PECK: So in other words, you couldn't deny the variance. . . CHAIRMAN TOMLAN: So we didn't deny the variance. We are now in the process of putting forward a motion which will deny the variance, whether it passes or fails, makes no difference, in a sense, because - well it if does pass, we've confirmed the fact that we've PAGE 48 BZA MINUTES - JULY 11, 1988 denied it - but if it doesn't, in any event, the appellant essentially is stopped cold because, in fact, the variance is not granted. Okay? That's clear as mud? Could we have a vote? MR. WEAVER: Well what number is this? CHAIRMAN TOMLAN: This is 1855b. MR. WEAVER: So a yes is to deny the motion? CHAIRMAN TOMLAN: That's right, a yes is to move forward for denial, a no is to deny the motion. MR. PECK: That's why I 'm confused. (unintelligible) CHAIRMAN TOMLAN: The motion in this instance is to deny. If you vote yes, you are for denial. Okay? If you vote no, you are not for denial. MR. PECK: Yes, I understand that voting. . CHAIRMAN TOMLAN: Okay. Then can we have the ballot? MR. PECK: If everybody votes the same as they did before. . . (unintelligible) it doesn't seem to make sense under these circumstances. . . that's why I 'm confused. . . MR. WEAVER: Well we have a motion both ways and that indicates the reason - you see, there would be no finding of fact on one side if you didn't have another motion. CHAIRMAN TOMLAN: The record requires findings of fact, whether you are for or against - you have to have it on the record. MR. WEAVER: Also the appellant is here and is being either granted a variance or not and it is appropriate that he hear why he is not, if that is the outcome. ACTING SECRETARY DIETERICH: On the second try - 1855b - there are 3 yes votes and 2 no votes. PAGE 49 BZA MINUTES - JULY 11, 1988 CHAIRMAN TOMLAN: So the appeal - though it has, in this case, all of its rationale laid out, is denied. PAGE 50 BZA MINUTES - 7/11/88 ACTING SECRETARY DIETERICH: The next appeal is APPEAL NUMBER 1856 FOR 107 SOUTH ALBANY STREET: Appeal of Joseph W. Lee for an area variance for deficient off-street parking, and deficient setbacks for both side yards under Section 30.25, Columns 4, 12, and 13 of the Zoning Ordinance, to permit the conversion of the building at 107 South Albany Street from a lawyer's office plus a dwelling unit, to a beauty salon plus a dwelling unit. The property is located in a B-2a (Business) Use District in which the existing and proposed uses are permitted; however, under Section 30.57 the appellant must first obtain an area variance for the listed deficiencies before a building permit or certificate of occupancy can be issued for the proposed conversion. CHAIRMAN TOMLAN: Is there a Joseph Lee in the audience? If you would begin by identifying yourself and where you live? MR. LEE: My name is Joseph Lee and I live 808 Buck Road, Groton, New York. The property that we are talking about is located down next to the Family Medicine Center and for my purposes of opening up a Beauty Salon (unintelligible) . The conditions that exist in the building won't substantially be changed inasmuch as all the water work is going to be done in the kitchen, which exists now and all the other rooms are basically - just have chairs in them, so there isn't any significant structural changes that I have to deal with (unintelligible) What would be a waste - to turn around and take away the back yard that exists - as it is now. The previous occupants or the original owner, I'm not sure - has cultivated some PAGE 51 BZA MINUTES - 7/11/88 very nice plants as it stands and for the aesthetics of my business, it would be pleasant to have that as an asset. As for the owner of the building, he would prefer to be able to keep the market value of his property up by not putting in the parking lot. Also there is a person who lives next to the building as it is - it is still residential occupancy at this point, and their back yard is still intact. Next to that is a real estate office, I believe, on the opposite side is an office, so basically the block is ringed with various businesses as it is, at this point. Across from the building is the Grapevine, the Alternative Credit Union is there, Family Medicine building is there, Bangs Funeral Home is on one of the other corners and the City Fire Department comes within range as far as two hundred feet all the way around - I believe the Salvation Army is also (unintelligible) something to that effect. The amount of business that I would be generating and the number of people, is insignificant to most of those businesses that are around there - or would be around me at that place. The two bedroom apartment that is upstairs I basically plan on renting it out to a married couple or I might reside there myself, I haven't decided that yet. But at this time I am still looking at it as a rental piece of property. CHAIRMAN TOMLAN: Questions from members of the Board? MR. OAKLEY: How many chairs do you plan to have? How many people. . . MR. LEE: At most three. MR. OAKLEY: So you will have three people and. . . MR. LEE: Basically a receptionist, one other operator and myself. MR. OAKLEY: Okay. Do you expect people to drive in? PAGE 52 BZA MINUTES - 7/11/88 MR. LEE: I have some from the various hills, I have some from out of town, yes. I have a lot who come off the campuses so they will more than likely use the bus system, now at this point. MR. OAKLEY: Do you run a business now? MR. LEE: I work for J. W. Rhodes Beauty Salon at this point. MR. OAKLEY: Have you seen the letter from the Alternatives Credit Union? MR. LEE: Yes. MR. OAKLEY: Have you made any attempt to rent parking spaces? MR. LEE: The closest I have been able to find thus far is Buffalo Street. CHAIRMAN TOMLAN: Within how many feet? MR. LEE: It's up the hill. CHAIRMAN TOMLAN: Way out. I see, okay. MR. LEE: They are renting out college space now - $300.00 a year for (unintelligible) so far, locally, I haven't been able to find anything - the Fire Station has some spaces behind it but the City owns it and can't get to it - I have metered parking in front of the building - I have metered parking surrounding the building. . . MR. OAKLEY: Have you checked the building at the corner of Green and. . . Knights of Columbus - do they have any parking available? MR. LEE: I haven't had a chance to, no. MR. OAKLEY: Okay. I know they rent some parking - I don't know as they have spaces available. Have you asked the owners of any of the parking lots that are in that area? MR. LEE: Yes and they all say they are full. Some of the other people in the immediate area (unintelligible) and it just ends up becoming - it's like if you have to tear up the back yard - it will PAGE 53 BZA MINUTES - 7/11/88 end up decreasing the value of the piece of property next to it. I have not been able to find any spaces within a reasonable amount within two blocks of the place, thus far. MR. SIEVERDING: The distance allowable in this zone is seven hundred and fifty feet? ACTING SECRETARY DIETERICH: Seven hundred and fifty feet, yes. CHAIRMAN TOMLAN: To address your questions further John, I notice that the proposed and the existing parking deficiencies remain the same, in any event. MR. OAKLEY: Yes, I realize that and I think that's (unintelligible) but I 'd like to think the deficiency as. . .. CHAIRMAN TOMLAN: The point is that if we had a chance to make the parking situation better we were going to try. I 'm just merely pointing out, Charles, that as proposed, it is no different than what it was, that you still have the same deficiency - it is not exacerbated. There is no difference between a lawyer's office and a beauty salon with respect to parking. MR. SIEVERDING: They both generate the same number of cars do you think? CHAIRMAN TOMLAN: Well that was the question that I had, of course, but that's the law. MR. OAKLEY: It's just that the lawyer makes more in the end. MR. LEE: You've got that right. MR. OAKLEY: They see more people per hour. . . CHAIRMAN TOMLAN: That's why a beauty salon has to move so fast. ACTING SECRETARY DIETERICH: (unintelligible) off-street parking within five hundred feet and a thousand feet along normal pedestrian thoroughfare. PAGE 54 BZA MINUTES - 7/11/88 MR. WEAVER: Yes but there is a zone restriction too, is there not? Just say that it has to be within so many feet along a street - and that trip along the street takes him into residential area, it is no go. ACTING SECRETARY DIETERICH: It has to stay within the same district. CHAIRMAN TOMLAN: Further questions of the appellant? [none] Thank you. Is there anyone else who would like to speak in favor of granting this appeal? [no one] Is there anyone who would like to speak in opposition? [no one] The case is ours. I 'll entertain a motion. ACTING SECRETARY DIETERICH: There was an amendment to the Zoning Ordinance that says seven hundred fifty feet, not a thousand feet. A thousand feet in residential, seven hundred fifty feet in a commercial zone. PAGE 55 BZA MINUTES - 7/11/88 DECISION ON APPEAL NUMBER 1856 FOR 107 SOUTH ALBANY STREET The Board of Zoning Appeals considered the request of Joseph W. Lee for an area variance to permit the conversion of the building at 107 South Albany Street from a lawyer's office plus a dwelling unit, to a beauty salon plus a dwelling unit. The decision of the Board was as follows: MR. OAKLEY: I move that the Board grant the area variance requested in Appeal Number 1856 with the condition that the applicant provide adequate off-street parking. MR. PECK: I second the motion. PROPOSED FINDINGS OF FACT: 1. The proposed use is permitted in the neighborhood. 2 . The alteration and the type of business in the building does not exacerbate the existing parking deficiencies nor does it exacerbate any of the other deficiencies. 3. The existing deficiencies on side and front yard would be extremely difficult to resolve because it would involve either moving or the demolition of the building - the moving of one side and the demolition of the other. VOTE: 5 YES; 0 NO GRANTED W/CONDITION PAGE 56 BZA MINUTES - 7/11/88 DISCUSSION ON APPEAL NUMBER 1856 WHICH TOOK PLACE AFTER THE MOTION WAS MADE AND SECONDED BUT BEFORE THE VOTE WAS TAKEN: MR. WEAVER: You mean - there is an opportunity to provide parking space - both physically and from a position of enforcement. I wonder if. . . CHAIRMAN TOMLAN: Do you want a condition? MR. WEAVER: Well I just wonder that - here is a place that has parking space and I don't see why it can't be used. The neighborhood is pretty heavily impacted, at least in the day time. Many of these old houses - there is no opportunity to get there or to develop it. I 'm not against gardens, I 'm just saying that there is nothing in the Ordinance that says we must preserve gardens, but there is in the Ordinance that says that we should provide parking. I see no practical difficulty in providing parking. CHAIRMAN TOMLAN: Maker of the motion has to accept or reject friendly amendments. MR. WEAVER: Well I haven't said an amendment but I think that it should be subject to providing adequate off-street parking. That doesn't require the tearing up of the back yard - he can go rent it any place he wants to within the required distance, but I see no reason for not providing it. CHAIRMAN TOMLAN: All of the off-street parking? I 'm just questioning. MR. WEAVER: Yes. Three more spaces. MR. OAKLEY: Well the driveway space is no longer kept so he has to create five spaces. MR. WEAVER: Yes. CHAIRMAN TOMLAN: So he is going to take out that beautiful garden? PAGE 57 BZA MINUTES - 7/11/88 MR. PECK: And the carport? MR. WEAVER: I 've listened to this argument before. The Ordinance doesn't talk about gardens and nice back yards - it talks about off-street parking. And this is not in a residential zone - quite the contrary, it is in a zone where the City is encouraging the development of business property rather than nice houses. CHAIRMAN TOMLAN: Well the maker of the motion still has to accept or reject. MR. OAKLEY: I 'm not sure what I 'm accepting or rejecting. CHAIRMAN TOMLAN: The motion. . . MR. WEAVER: I would second the motion for that matter subject to the condition that the appellant provide adequate off-street parking. CHAIRMAN TOMLAN: And here we thought we were going to bring this one to a quick conclusion. MR. SIEVERDING: Adequate as called for in the Ordinance? Five? MR. WEAVER: Sure, five. CHAIRMAN TOMLAN: Five altogether. MR. PECK: The two spaces are in front? MR. OAKLEY: No the two spaces are (unintelligible) MR. WEAVER: But they may become access to the other and they wouldn't be allowed in the driveway. CHAIRMAN TOMLAN: So he has the choice either to rent or to carve up as much of the rear yard as he needs. And you know what that means. It is up to Mr. Oakley, entirely, in this instance as to whether in fact he wants to proceed with this notion - he has a motion and a second. I feel like Allen Ludden over here on the side. PAGE 58 BZA MINUTES- 7/11/88 MR. OAKLEY: Definitely . . . I 'm trying to think of the best way to do this (unintelligible) MR. SIEVERDING: He's got both alternatives, either within the seven hundred and fifty feet and in the back yard, if he can get two off-site, then he can do three on-site. . . MR. OAKLEY: Well I 'll accept that. . CHAIRMAN TOMLAN: You'll accept the amendment? MR. OAKLEY: I 'll accept the amendment and we will see what happens. CHAIRMAN TOMLAN: Is the amendment on the record or would you like it stated by the maker? RECORDING SECRETARY: Well, we have "subject to the condition that the appellant provide adequate off-street parking" and then do you want either within seven hundred and fifty feet. . . MR. OAKLEY: No you don't need to put that in. RECORDING SECRETARY: And then do we delete one of the findings? "Where he has made serious attempts at finding additional parking". . . MR. OAKLEY: It does seem like that finding is extremely deletable, I 'm glad Barbara made a suggestion like that. CHAIRMAN TOMLAN: And the seconder, Jack? You would accept the amendment? MR. PECK: Yes. CHAIRMAN TOMLAN: Are there further discussions about this? Further thoughts? Let's have a vote. ACTING SECRETARY DIETERICH: The vote in Appeal Number 1856 is 5 votes in favor - 5 yes votes. CHAIRMAN TOMLAN: So the appeal is granted. MR. LEE: Subject to? CHAIRMAN TOMLAN: Subject to your parking requirements. BZA MINUTES - 7/11/88 MR. LEE: I have to get them within seven hundred and fifty feet? CHAIRMAN TOMLAN: Right or you have the option of providing it on-site, in your back yard. MR. LEE: Thanks. CHAIRMAN TOMLAN: I guess I should say you are welcome. PAGE 60 BZA MINUTES - 7/11/88 ACTING SECRETARY DIETERICH: The next appeal is APPEAL NUMBER 1857 FOR 109 HARVARD PLACE: Appeal of Mary Bramble for an interpretation of Section 30.47 of the Zoning Ordinance to determine whether the property at 109 Harvard Place has "grandfather rights" as a preexisting nonconforming use as a multiple residence for six unrelated persons in the main unit and two unrelated persons in the basement apartment. The Building Commissioner has determined that because the property did not have a valid Certificate of Compliance for use as a multiple dwelling at the time the neighborhood was rezoned to R-1b, no grandfather rights were established. The property is located in an R-1b (Residential, single-family dwellings) Use District in which only single-family dwellings are permitted; therefore the appellant must either establish that a legal preexisting nonconforming use was established at the time that the area was rezoned, or obtain a use variance for the nonconforming use. CHAIRMAN TOMLAN: Dirk, I think you are representing Ms. Bramble? Have a seat if you would and begin by identifying yourself - did you want to bring up that. . . MR. GALBRAITH: Yes if I may. CHAIRMAN TOMLAN: If you want to have a seat and if you would begin with the regular identification procedure. MR. GALBRAITH: Thank you. Good evening. My name is Dirk Galbraith, I 'm the attorney for the appellant, Mary Bramble, I have professional offices at 200 East Buffalo Street in Ithaca. At this PAGE 61 BZA MINUTES - 7/11/88 time I 'd like to hand out to the members of the Board copies of an income and expense statement concerning this property that I am going to be referring to and I would ask that a copy of the statement and a copy of the diagrams and the map that I brought with it be made part of the record of the proceedings. CHAIRMAN TOMLAN: So long as we can xerox reduce those. MR. GALBRAITH: By way of a brief introduction concerning this property, it is located near the intersection of Harvard Place and Elmwood Avenue and it is outlined in black and designated 109 on this map which I obtained from the City Engineer's office. The character of the neighborhood is somewhat indicated by the properties which have been outlined in red. Those properties are in the immediate vicinity of 109 Harvard Place and as far as the appellant and I can determine, those properties are presently devoted to multiple residence use. VOICE IN THE AUDIENCE: Legally or illegally. . . MR. GALBRAITH: Do you want me to respond to that? CHAIRMAN TOMLAN: Please, we've got to hold comments from the audience - with all due respect. . . Ellen, you'll have your chance later on. MR. GALBRAITH: In any event, we believe those properties are presently devoted to multiple residence use and this is the location of 109 Harvard Place. 109 Harvard Place is occupied on three levels and we have a floor plan with us this evening that Mrs. Bramble, I think, is going to talk about a little bit later, but I 'd like to orient the Board to what it is. What we have denominated the ground floor might also be referred to as the basement and it is - and has been since the late 1970's - an PAGE 62 BZA MINUTES - 7/11/88 apartment separated from the upper portions of the building, consisting of two bedrooms, a living room, kitchen and bath. The first floor of 109 Harvard Place consists of a living area, which at one time was occupied by Mrs. Bramble and her family, consists of two bedrooms, the first bedroom was, I think, for a long time used as a study and not a bedroom - garage, kitchen area, living room and two porches. The second floor is laid out at the present time as five bedrooms, a kitchen, hallway and a bath - so I think what you can see here is a fairly large residence and one that has living areas on three floors - kitchens and bath areas also on three floors and presently nine bedrooms. Now this is as the application indicates, application for an interpretation of the Zoning Ordinance and there is a slight, I think, procedural question that I would like to address to begin with and explain my reasoning for making the application in this way. Section 30.47 of the Zoning Ordinance provides that - I 'm going to summarize this - that when the zone of a particular area changes it is the obligation of the property owner to make an application to the Building Commissioner for a Certificate of Compliance and if the property owner can establish that he or she has a valid pre-existing non-conforming use, then it survives the change in the Ordinance. The Ordinance 30.47 continues that any property owner who fails to file a claim within the ninety day period may also file with the Board of Zoning Appeals following the provisions of Section 30. 58 of this Article which is the general section dealing with variances. Now I believe for reasons that I 'm going to explain to you, historically Mrs. Bramble probably should have filed a claim in 1977, at the time that the definition of an R-2 PAGE 63 BZA MINUTES - 7/11/88 zone changed to include multiple residences - she did not. Subsequently the zoning of this particular area changed again in 1985 from R-2a to R-1b, which is the present zone. Again, Mrs. Bramble did not file a claim. My interpretation of the Ordinance, subject to whatever the Board's determination is on this point is, that at this point Mrs. Bramble is just simply following the alternative route that is outlined in this Section, she failed to file a timely claim with the Building Commissioner, therefore she is coming to the Board of Zoning Appeals, asking that this body determine that she had a pre-existing, non-conforming use dating back to 1977 prior. I received a copy of a letter from the Building Commissioner, Mr. Hoard, which I believe is also part of the record of the proceedings since it is addressed to the Board, and although I have the highest regard for Mr. Hoard's knowledge of this subject, I do have one disagreement with his letter. I don't believe that under the circumstances Mrs. Bramble was required to file an appeal from any determination of his within thirty (30) days or any other period of time, in fact, what we are asking for is an interpretation - I think - going back to 1977 rather than an appeal from any determination that Mr. Hoard has made. Now he suggests in his letter that this is really a straight appeal for a variance - in the event that the Board determines that that is how you wish to handle this, as a straight appeal for a use variance - then we are prepared to present proof on that as well. So I guess there is really two aspects to this, one a request for an interpretation - interpretation being that Mrs. Bramble had obtained grandfather rights to operate this property as a multiple residence prior to 1977 and secondly, in the alternative, that she PAGE 64 BZA MINUTES - 7/11/88 is now entitled to a use variance to continue the use to which the property has been devoted since then. Now with that introduction, if the Board permits, I would like to ask my client, Mrs. Bramble, some questions that I hope will bring out some of the facts concerning this property. CHAIRMAN TOMLAN: Before you go any further, I 'd like to ask Peter to check on Tom's thirty day determination question and for clarification sake, we are going to go along the lines that you have suggested, that are part of the official notification - we are going to deal with the question of interpretation and then the question of use variance - whenever, if it should come up, okay? MR. GALBRAITH: Fine. Mrs. Bramble, where do you live? MRS. BRAMBLE: I live in Watertown, Massachusetts at the moment. MR. GALBRAITH: What do you do there? MRS. BRAMBLE: I'm a secretary. MR. GALBRAITH: And do you own the property at 109 Harvard Place? MRS. BRAMBLE: I do. MR. GALBRAITH: And how long have you owned that property? MRS. BRAMBLE: It was purchased for me in part of a divorce settlement in 1975. My husband stating and my lawyers agreeing, that this would be a good piece of property for me to have and to bring in money as inflation went on and when the children were grown I could then rent rooms. At the time we purchased it from Dean Cranch, it was a multiple dwelling and there was no problem of it ever becoming anything else that I knew of. I had no idea - I was not a business woman - it wasn't required that I be. MR. GALBRAITH: Okay. Had you had any prior experience operating a real estate. . . PAGE 65 BZA MINUTES - 7/11/88 MRS. BRAMBLE: No. I had a family at that time and I wouldn't have moved into Collegetown except for the fact that this looked like a good possibility. . . MR. GALBRAITH: I 'd like the Board - if I could - to take, I suppose, judicial notice or whatever kind of notice Boards take, that in 1975 the zoning in this area was R-2, which under the then current definition, permitted multiple residence use. Now, Mrs. Bramble, when you bought the property, how many people were in your family? MRS. BRAMBLE: I have four children - one went away to college and I moved into 109 Harvard Place with three children. MR. GALBRAITH: And can you tell me by reference to the diagram, where did you and your children stay in the property? Where did they sleep? MRS. BRAMBLE: Okay. I stayed downstairs in one of the bedrooms and three children in 1975 were upstairs and that was 1975. MR. GALBRAITH: Now after that, Mrs. Bramble, did the time come when you converted the basement to an apartment? MRS. BRAMBLE: The basement was already an apartment - I made it into two bedrooms - it was approved by Mr. Naegely. . . MR. GALBRAITH: What year was that, do you know? MRS. BRAMBLE: That was 1976. MR. GALBRAITH: Okay. So in 1976 how many people did you have living in the apartment in the basement? MRS. BRAMBLE: Two. MR. GALBRAITH: And how many members in your household lived in the property? MRS. BRAMBLE: Five. PAGE 66 BZA MINUTES - 7/11/88 MR. GALBRAITH: Okay. And did the time come when you started taking in boarders in the upstairs? MRS. BRAMBLE: As soon as my - I did exactly what we had planned to do in this divorce settlement - as soon as my second daughter left for college I now rented two rooms upstairs. MR. GALBRAITH: What year did she go to college? MRS. BRAMBLE: In 1977. MR. GALBRAITH: Okay. Now were you aware at that time that you were required to obtain a certificate of zoning compliance? MRS. BRAMBLE: No I was not. I remember this was discussed with the Cranches at the closing - there was no certificate required - for me to have at the time when I bought the property and I assumed that I had no problems with it - at that time . . . MR. GALBRAITH: So in 1977 how many occupants did you have in the basement? MRS. BRAMBLE: Two. MR. GALBRAITH: And how many boarders did you have on the second floor? MRS. BRAMBLE: Two. MR. GALBRAITH: And how many members of your family lived in the first floor? MRS. BRAMBLE: There were two up and down and then two coming home. MR. GALBRAITH: Okay, when you say two up and down. . . MRS. BRAMBLE: Okay, my daughter down and my son up with two boarders - so four. Two boarders and two children. . . MR. GALBRAITH: I see, and yourself. MRS. BRAMBLE: And myself and two in the basement. PAGE 67 BZA MINUTES - 7/11/88 MR. GALBRAITH: Now did a time come when your remaining children grew up and moved out of the home? MRS. BRAMBLE: Yes. My third daughter left in 1979 and my son now is downstairs with me - second bedroom. And then I rented all the bedrooms upstairs which were four. MR. GALBRAITH: So what year did you rent four rooms upstairs? MRS. BRAMBLE: 1979. MR. GALBRAITH: And at that time none of the members of your family lived upstairs on the second floor, is that correct? MRS. BRAMBLE: That is correct. MR. GALBRAITH: And you and your son lived on the first floor. . . MRS. BRAMBLE: Right. MR. GALBRAITH: And you had two renters in the ground floor apartment? MRS. BRAMBLE: That is correct. MR. GALBRAITH: How long did that continue? MRS. BRAMBLE: Well it has continued since 1976 . . . MR. GALBRAITH: Right up until the present time? MRS. BRAMBLE: Right. MR. GALBRAITH: Okay. Now Mrs. Bramble, during the period of time from 1979 to the present, did a time come when you moved out of 109 Harvard Place? MRS. BRAMBLE: Yes. I moved to North Hampton in 1985. MR. GALBRAITH: I 'd like to point out, our application indicates that in 1984 Mrs. Bramble moved - that was an error - she moved in 1985. Now what was the reason that you moved to Massachusetts? PAGE 68 BZA MINUTES - 7/11/88 MRS. BRAMBLE: My son was having problems and I wanted to get him away and I needed a better job, so I decided to move out of Ithaca basically for the sake of my son. MR. GALBRAITH: And after you moved out of the residence and your son moved with you, to what use did you devote the first floor where you two had been living? MRS. BRAMBLE: I rented the first floor to a young couple. MR. GALBRAITH: Okay. Now up to that point, in 1985, had you ever had any complaints from anybody about what you were doing? MRS. BRAMBLE: Never had any complaints during the ten years that I lived there, until the time - well, until recently. MR. GALBRAITH: Okay. Now Mrs. Bramble. . . MRS. BRAMBLE: I'm sorry - I did have a complaint - I have never, myself, had any complaints and there was no reason that I should have complaints. MR. GALBRAITH: In 1986, do you recall receiving a letter from the Building Commissioner's office about the property? MRS. BRAMBLE: In 1986 I did receive a letter stating that I needed to come in and see Mr. Hoard - which I did - and at that time I was trying to decide whether to stay away or come back to Ithaca myself and I went to see Mr. Hoard at that time. MR. GALBRAITH: What discussion did you have with Mr. Hoard? MRS. BRAMBLE: Well I think he - at that time - was when he told me there were too many names on the mail boxes and I was over rented. Now nothing was said about the certificate of compliance still - that hadn't come out yet. And at that time, actually I put the house on the market for sale. MR. GALBRAITH: And how much did you list the house for? PAGE 69 BZA MINUTES - 7/11/88 MRS. BRAMBLE: $150,000. 00. MR. GALBRAITH: And how long did the house stay on the market? MRS. BRAMBLE: For three months. MR. GALBRAITH: And did you receive any offers at that time? MRS. BRAMBLE: No, only inquiries about it. (unintelligible) MR. GALBRAITH: Now in 1986 then, you knew from the Building Commissioner's letter to you and your conversation with Mr. Hoard, that the use of the property that you were devoting it to was not in compliance with the zoning at that time, didn't you? MRS. BRAMBLE: No, I was not sure of that - it wasn't made clear to me that it wasn't in compliance because it always had been four up and - two in the first floor and two in the ground floor. MR. GALBRAITH: Okay. Was there something that happened to you in 1986 that made it difficult for you to deal with the property, or correct the violations that Mr. Hoard had pointed out? MRS. BRAMBLE: I had a nervous breakdown in the summer of 1986 and I was in the hospital for two weeks. This was being - (unintelligible) lawyer in town and then the property [changed tape here, therefore missed some of Mrs. Bramble's dialogue] . . . MR. GALBRAITH: Now Mrs. Bramble, in 1987, did you receive a operating statement concerning this property from Mr. Gardner, showing the total rents received and your expenses? MRS. BRAMBLE: Yes I did. MR. GALBRAITH: And I have prepared an income and expense statement based on Mr. Gardner's record - have you had a chance to review that? MRS. BRAMBLE: Yes. MR. GALBRAITH: And is that accurate to the best of your knowledge? PAGE 70 BZA MINUTES - 7/11/88 MRS. BRAMBLE: Yes it is. MR. GALBRAITH: And I 've dug through information that we have, we have Mr. Gardner's operating statement here and I would be happy to submit it to the Board - I also have Mrs. Bramble's 1987 federal income tax return which contains basically the same information. And is that a true statement of really the current operating income and expenses for this property? MRS. BRAMBLE: Yes. MR. GALBRAITH: And how many occupants did you have in the property in 1987? MRS. BRAMBLE: I had - okay, one more than I thought I was required. . . MR. GALBRAITH: Okay, so how many is that? MRS. BRAMBLE: That would be five upstairs. Two and two. . . MR. GALBRAITH: So a total of nine? MRS. BRAMBLE: Nine, right. MR. GALBRAITH: Now Mrs. Bramble if you were required to reduce the occupancy of this property to four people - being two in the basement apartment and two in the entire upstairs - for the coming rental year, what would you be able to rent the basement for? MRS. BRAMBLE: $450.00. MR. GALBRAITH: How do you know that? MRS. BRAMBLE: I have it rented. MR. GALBRAITH: Okay. For that amount? MRS. BRAMBLE: Yes. MR. GALBRAITH: And what rental could you obtain for the upstairs of the residence, based on two occupants? PAGE 71 BZA MINUTES - 7/11/88 MRS. BRAMBLE: Okay. I think I could get $575. for that - I 'm paying all utilities in this case. MR. GALBRAITH: Yes. Mrs. Bramble, if you were required to operate the property in that fashion, could you meet your expenses? MRS. BRAMBLE: No I couldn't. MR. GALBRAITH: At this time we have no further testimony that I 'd like to offer from Mrs. Bramble and I would ask for any questions from the Board to either myself or Mrs. Bramble. CHAIRMAN TOMLAN: Any questions from members of the Board? . . . Sure start at the beginning, insofar as that is possible but basically focusing on the question of interpretation. . . . Peter has a suggestion here - I asked the question first off about the thirty day - remember the thirty day question that Tom had brought up and Peter has found the particular Section. ACTING SECRETARY DIETERICH: It would be Section 30.54 - would be an order of the Commissioner - thirty days from the order of the Commissioner. The Commissioner gave an order in March and then considerable time went by and that's where the thirty days came from. VOICE IN THE AUDIENCE: We can't hear. ACTING SECRETARY DIETERICH: The thirty days came about from Section 30.54 Enforcement Officer and it discusses the order of the Commissioner - thirty days from the time that the Commissioner has sent out an order, so that's the point of the thirty days. CHAIRMAN TOMLAN: Are you familiar with that. . . MR. GALBRAITH: I know that that was recently enacted and my belief, after reading it, was and still is, we are not appealing Mr. Hoard's order. . . PAGE 72 BZA MINUTES - 7/11/88 CHAIRMAN TOMLAN: No, I just wanted a clarification - you had called that into question. MR. GALBRAITH: Yes. CHAIRMAN TOMLAN: I wanted you to understand where he got his information - that was more for your - because you were essentially questioning that - I thought we would bring that up right off and get that out of the way, okay? MR. GALBRAITH: That's fine. I understand that. CHAIRMAN TOMLAN: Sorry Herman, I didn't mean to interrupt but as long as Peter had that fresh on the top of his head. . . MR. SIEVERDING: That's okay. I guess what I would like to understand is why the failure to respond each time this issue has been brought to your attention? It just seems that the Building Department and the Building Commissioner have made repeated attempts to sort of bring this situation to a head and try to get it resolved and yet each time appointments are made, they are not kept, and information is sent and no response is received and here we are almost six years after the date of the last letter that we have in this packet - which is 1982 - which concerns the discrepancy over one bedroom or two bedrooms in the ground floor and yet the same questions remain unanswered. It seems to me that property owners have a responsibility to be not only aware of what the zoning code calls for but also to respond to communications that are sent by the Commissioner. . . MR. GALBRAITH: If I could respond to that first, then I 'd like to maybe have Mrs. Bramble respond in her own words. The Commissioner's file contains, I believe, a report of a November 23, 1983 inspection where, if I read the file correctly, the notation PAGE 73 BZA MINUTES - 7/11/88 "this property conforms to current zoning" - so I think the problem that we are talking about here didn't originate back in 1982 - if anything it originated in 1986. I don't believe there were any notices of violations sent to Mrs. Bramble between 1982 and 1986. CHAIRMAN TOMLAN: Peter has been looking at that because I anticipated the question. It seems as though there were some questions even as far as 1968 under the previous owner, as to how many people were in there and whether in fact it was conforming and this was essentially in written form to Mr. Cranch, the former owner. So it has had a long history of questions - because Tom is not here to defend himself, I 'm merely tracking - following his own words and beginning to follow out - the case goes back - as he says "a number of years" and involves a property which had a non-conforming use as a multiple dwelling even under the previous R-2a zoning. That is one of the things I had to find out for myself - I mean, we seem to have evidence of that in the file. MR. GALBRAITH: Well, okay, if I could respond to that. Indeed it was non-conforming under the R-2a zone, at least after 1977 because after 1977 R-2 did not permit multiple dwellings. I would submit that before 1977 this was a conforming use as a multiple dwelling because before that reinactment of the ordinance in 1977 multiple residence was a permitted use in an R-2 zone. ACTING SECRETARY DIETERICH: In 1968 the record seems to indicate it was a two-family dwelling and then it continued - there never seems to be any indication that I can find here - I 'm trying to track this thing down along the way here - Tom is not available so - he gave me some information on it but the file seems to do much better. In 168 it shows a two-family dwelling, doesn't really PAGE 74 BZA MINUTES - 7/11/88 discuss the number of people and it continues on . . . various times but in 1979 again it shows - it seems to indicate that it was a two-family dwelling here - a basement apartment and the owner's apartment. If I had to interpret it, I really wouldn't see that there is a multiple dwelling, if that is a two-family dwelling, an owner's apartment and a basement apartment. And back in March 1979 - so that is past the 1977 ordinance initiation of the new ordinance and so if you were to establish anything, you could establish a two-family dwelling and I do believe Tom made some indication that that is in the file - that he accepted it as a two-family dwelling. MR. GALBRAITH: I guess the only thing I can say in response to that is that, had Mrs. Bramble - back in 1977 - when the definition of R-2 changed, come and obtained a certificate of compliance and the Building Commissioner's office had then become aware that she had two roomers - two boarders - living in the upstairs of her home, besides her own family - I don't think we would all be here tonight - but she didn't, so. . . ACTING SECRETARY DIETERICH: A boarder is permitted to live in with the family and that still doesn't change it into a multiple dwelling - it still makes it a two-family dwelling. So that doesn't really change anything and then the question of violations and such - inspections - there were inspections - I 'm looking at one dated March 20, 1979 - which again talks about the basement apartment and the owner's apartment and this list of violations and there was actually some inspections at that time and there was also a Housing Board variance granted. . . PAGE 75 BZA MINUTES - 7/11/88 MR. GALBRAITH: I think the violations you just referred to are housing code violations. . . ACTING SECRETARY DIETERICH: True. . . MR. GALBRAITH: And there were several applications before the Housing Board of Review for variances from those and I think they were granted. ACTING SECRETARY DIETERICH: True, true but I think the question is multiple dwelling or two-family dwelling or whatever is granted as - what grandfather rights seem to be established and it seems to indicate at best that it was a two-family dwelling - it was never a multiple. MR. GALBRAITH: Well I guess what I 'm trying to say about that is that as I understand grandfather rights, is that once you use the property at a certain level of occupancy, if the zoning changes you shouldn't be permitted to continue that level of occupancy. . . ACTING SECRETARY DIETERICH: True if it is legal - if it was established, and I don't believe it was ever - according to the file, again, it doesn't appear to have been established. MR. GALBRAITH: Okay then that's the whole point of the application, here, it wasn't established - she didn't come to the Building Commissioner and ask for a Certificate of Compliance and now we are operating under the section of the ordinance - 30.47 - that allows her to come to this Board and make a variance application - when she didn't do that - she didn't ask for the Certificate of Compliance in a timely fashion. What we are really asking for is that the lady be permitted to maintain a level of occupancy which she had in 1977, which was legal at the time. PAGE 76 BZA MINUTES - 7/11/88 MR. OAKLEY: I have a question. Leaving aside the exact occupancy at that time - you are saying that she is coming - not for a variance but for recognition of her grandfather rights? MR. GALBRAITH: The way I made the application. . . MR. OAKLEY: What do you do with the 30.47 - Section 2 - paragraph 2 of Section 2. . . where it says - I think we should read the whole thing. . . "It shall be the responsibility of the Building Commissioner to determine on a case by case basis which buildings or land have uses which will become legal non-conforming uses under the new regulations. In making these determinations he shall rely on the property records in his office. " So it is clear that he has a responsibility to look through the records that we are considering right now based on the most recent information available for each building or land. "In cases where the actual property use differs from the use of record, it shall be the property owner's responsibility to file a claim with the supporting documentation to the Building Commissioner within ninety days after the effective date of the amendment changing the regulation. " And that strikes me as being not a question of filing from the time of the Building Commissioner's ruling, not a question of really appealing the Building Commissioner's ruling, but when the zoning changes - in order to preserve grandfather rights, the property owner has the requirement to make an application, if the paper record does not support the property owner, within ninety days and that would seem to be well after ninety days. MR. GALBRAITH: If it is not abundantly obvious, let me make it obvious - that this is not Jason Fane or William Lower that we are dealing with here and her level of sophistication about matters PAGE 77 BZA MINUTES - 7/11/88 such as this is minimal and I would refer you to the last sentence of the same paragraph that you just quoted and I quote, "any property owner who fails to file a claim within the ninety day filing period, may also file with the Board of Zoning Appeals following the provisions of Section 30. 58 of this Article" which is just what we've done. CHAIRMAN TOMLAN: So to come back to Herman's question, and more particularly, directed to Mrs. Bramble - the reason you didn't file was because you didn't know you were supposed to file? MRS. BRAMBLE: For a Certificate of Compliance? CHAIRMAN TOMLAN: For a Certificate of Compliance and essentially to move this into compliance (unintelligible) MRS. BRAMBLE: Right. I have no recollection - and, you know, there were times when I was taking care of children, working and trying to rent this house - the zoning changing - I know that in the beginning it was mostly (unintelligible) to worry about that. In 1983 Cornell would not list any property unless you had a Certificate of Compliance and that's where I got my students - from Cornell. Lee Naegely came and inspected the house and I think I had one problem - a door lock in the back - and I guess it was February or March - during the time of the rental season - and he called up Cornell and said that I basically have my certificate but the paper work would come. So I listed it again at Cornell and went on and didn't think about the Certificate of Compliance - not knowing that this piece of paper was important. Mr. Naegely did not send it to me and I found out this year I don't have it. Although I was - Cornell listed my property because Mr. Naegely said I have a Certificate of Compliance for the four plus two - and that's the PAGE 78 BZA MINUTES - 7/11/88 way I listed my property. So I didn't worry about it the piece of paper. That's one of the reasons why I didn't do that. Actually - I think he made some note about the lock but he did not make a note about his call to Cornell, but there is no way that Cornell would take anybody's property at the time unless you had a Certificate. The other letter - one was in 1986, I came immediately and made the decision to put it on the real estate market so I wouldn't have to go through all of this and I don't think there was any other time that I didn't respond - although Mr. Hoard talks about numerous times - (unintelligible) the times when they told me that I needed anything that I didn't proceed to get it. ACTING SECRETARY DIETERICH: Was that letter of 1982 you mentioned? MRS. BRAMBLE: It was 1983 that the inspection occurred, I think. ACTING SECRETARY DIETERICH: I have a letter December 17, 1982 with some discussion with Lee Naegely concerning property information forms and some discrepancy and "please call me and set up a time for a discussion to discuss this problem and show me the other . . . " he talks about other rooms that needed to be - that was December 17, 1982 - there seemed to be a discrepancy at that point and then. . . MRS. BRAMBLE: Is that the one at the bottom of the page? February 1983, Lock on rear door. That's when he had inspected the property. Also there was another time when I was thinking of putting on - as you can see, the note about Chris Anagnost looking into the property for sale. So it was 1983, as I stated before. You see the note - it says "lock on rear door" that's when he had inspected it and that's when he called Cornell. Mr. Hoard knows PAGE 79 BZA MINUTES - 7/11/88 the situation, Mr. Hoard said, "well it is not our responsibility to see that we send out all the certificates. " [sic] CHAIRMAN TOMLAN: When did you move in 1985, exactly what month? MRS. BRAMBLE: September. . . CHAIRMAN TOMLAN: So it was after the property had been rezoned? The rezoning occurred on the 7th of August. MRS. BRAMBLE: On the 7th? I didn't know that. ACTING SECRETARY DIETERICH: There just seems to be a general continuation of letters which - something was started and then it was never completed. "In reviewing past inspections and the status of this inspection - it was found that the property was inspected but the inspection was not completed" - that's December 29, 1981 and then there is a September 14, 1982 "it has been brought to my attention that a reinspection for the rental unit has never been done. " Your letter of March 179 said - then it talks about certain pieces of work that needed to be done and there is a beginning and there was never anything quite finished off - in December 17, 1982 - it just continues on - there was never a Certificate - it never got to the point of a Certificate. "I have received your rental property information form and notice that it. . . " - there seems to be continuous discussion - over the years there has been continuous discussion with you, by mail, or by telephone, that something was in error - missing - but it was never - apparently - followed through by you, it seems. MR. GALBRAITH: I don't know if I'm out of order, but I address the question to you Peter, do you have the results of the November 23, 1983 inspection of this property? ACTING SECRETARY DIETERICH: Most likely. PAGE 80 BZA MINUTES - 7/11/88 CHAIRMAN TOMLAN: November 22, 1983? MR. GALBRAITH: Either 22nd or 23rd. . . CHAIRMAN TOMLAN: 1983 - it is a computer printout. ACTING SECRETARY DIETERICH: Yes, we have a report. There were various deficiencies. . . MR. GALBRAITH: Isn't there a notation in your files as a result of that inspection that said that the property conforms to the current zoning? ACTING SECRETARY DIETERICH: This is a printout so it probably wouldn't be on here - I 'd have to find - you are talking about something in long hand? MR. GALBRAITH: My notes don't indicate what it was - just the fact that it was there. CHAIRMAN TOMLAN: We've got a computer printout, Dirk, but we don't have the information from which the computer printout was generated. on 22nd. . . ACTING SECRETARY DIETERICH: I 'm trying to find that note of yours but I don't - we have a number of forms and I don't see that particular note. CHAIRMAN TOMLAN: Do you have any recollection of what it looks like physically? MR. GALBRAITH: Perhaps if we move on to the comments from the public, I might have the opportunity to look at the file, perhaps I could find it rather than hold this up any longer. CHAIRMAN TOMLAN: Right. It seems as though several of the entrys were put in at a particular date in 183, including your comment and the computer generated it out at a particular date, but the actual PAGE 81 BZA MINUTES - 7/11/88 information may have been earlier. Shall we move on to more questions? MR. WEAVER: Yes. The interpretation which this application asks for appears to be based upon the assumption that the second part of the requirements for grandfathering are the tests that should be made and I guess in the interpretation we'd have to hold to the records as they exist or some superior proof if it is available. I can't get that far, feeling that the interpretation might be rather special in this case, rather than a general interpretation of the Ordinance. And go back to 1977 when the Ordinance was changed and clearly disallowed multiple residences in that zone. In 1977 the appellant was occupying the house with her children - some going away to school for a few months and some returning - but as I understand it - in 1977, the year of first concern, that there was a basement apartment - ground floor, if you will - occupied by two people and that the appellant occupied the first and second floors with her children and one or two other tenants, not related. Is that your understanding of the conditions in 1977? MR. GALBRAITH: Yes. MR. WEAVER: This is when the Ordinance was amended. MR. GALBRAITH: Yes. MR. WEAVER: Did that continue for any length of time? When did you cease to occupy the first and second floors with your family? MRS. BRAMBLE: In 1985. MR. WEAVER: A question to the Chair. I understand the definition of multiple dwelling being three units or three or more unrelated persons and if we have - clearly, an apartment - a living unit in the basement and the owner occupying the first floor or parts of PAGE 82 BZA MINUTES - 7/11/88 both the first and second floor, with her children and has no more than two roomers, that's not a multiple dwelling. I don't see how you can extend all of this into a fight over whether it is grandfathered - there was nothing there to grandfather, in my simple mind. MR. GALBRAITH: Okay. I guess my rebuttal to that would be that the family plus the two unrelated individuals would seem to be the equivalent of three unrelated individuals. ACTING SECRETARY DIETERICH: Three unrelated doesn't make a multiple. MR. WEAVER: Not the dictionary I use. I 'm just saying to you that we are stuck with the definitions of the Zoning Ordinance and I understand a multiple dwelling to be three living units or that a family and more than two unrelated persons to bring it into a multiple dwelling definition. If it was a duplex - because it had a separate apartment - never mind who is there - if it was a legally occupied apartment - in the first and second floor however, the owner plus not more than two unrelated persons were the occupants for - apparently - several years, as the children were going on to college. I don't know what year it was that you had three unrelated persons living with you but apparently some substantial number of years beyond 1977. MRS. BRAMBLE: 179. CHAIRMAN TOMLAN: No, you said boarders began in 1977, using the upstairs. MRS. BRAMBLE: Right - two of them. MR. WEAVER: Yes but I 'm talking about how many. MRS. BRAMBLE: Two. And then two - and then four. . . PAGE 83 BZA MINUTES - 7/11/88 CHAIRMAN TOMLAN: And then two after that initial two? MRS. BRAMBLE: I 'm doing this by year - and then four in 1979. MR. OAKLEY: Can I ask what happened on this form that was filled out on December 2, 1982 . . . you are aware of the property. . . . MRS. BRAMBLE: Yes, because I didn't know what to do and I just did it and I remember sending it in - being (unintelligible) some split system that would give (unintelligible) . . . but I just didn't put the answer down because I wasn't exactly sure at that particular time, what it was. MR. OAKLEY: You mean the number - you weren't sure what the number of roomers was or. . . MRS. BRAMBLE: No, the number allowed. It isn't how many you have, it's. . . MR. OAKLEY: It says, check whether occupied by: single family, second line: single family plus number of roomers or boarders. . . MRS. BRAMBLE: Right. MR. OAKLEY: It doesn't seem that complicated. MRS. BRAMBLE: I wasn't sure what I was supposed to put, okay? So I didn't put exactly what the situation was and (unintelligible) Mr. Naegely or Mr. Hoard or anybody else call me up and say, why didn't you fill it in? At that time I didn't know what to put so I didn't put anything in, as a result of that. MR. OAKLEY: But in fact it should have been filled out something like - single family plus four roomers or boarders? MRS. BRAMBLE: Yes - this was in 182. CHAIRMAN TOMLAN: So already we have (unintelligible) . . . PAGE 84 BZA MINUTES - 7/11/88 MR. WEAVER: As you expressed that, you see, occupants of an apartment aren't "plus four" - they are "plus whoever is down there" but the people that are living with the family. . . MR. OAKLEY: Well, this is in Unit Number 1 - are you looking at the form? MR. WEAVER: No I 'm not. . . MR. OAKLEY: The form has a Unit No. 1 and a Unit No. 2 - Unit No. 2 is listed as having two unrelated individuals in it, Unit No. 1 is listed - there are three options, one of which is single family, one of which is single family plus roomers and/or boarders. . . MR. WEAVER: But the Ordinance says "per living unit" and if you have a duplex, you can have two unrelated persons living in it legally. Now you have a family with two more unrelated persons living in it - that's four unrelated persons in the building but not a multiple dwelling, okay? MR. OAKLEY: I 'm not disagreeing with your interpretation, I 'm just wondering why the form was filled out in this way. . . MR. WEAVER: Go ahead, I don't mind. MR. OAKLEY: . . .which doesn't seem to indicate the history of that. MR. WEAVER: I didn't fill it out, I don't know. CHAIRMAN TOMLAN: Let's focus a little more closely on the question of interpretation because - you began to, I think, Charles. . . MR. WEAVER: Well I was pointing out that in the Ordinance that it is an either/or - not a list of requirements but was 30.47 Non-conforming Uses - "whenever the regulations district in which the building or land is located are changed by amendments so that the use under the new regulation is non-conforming, that use may be continued as a legal non-conforming use under the new regulations PAGE 85 BZA MINUTES - 7/11/88 only if one or more of the following conditions: " Well, Item 1 - the use conformed to the regulation in effect before the amendment and it seems to me on the face of the application, it states that it was not being used as a multiple dwelling at the time that the Ordinance was changed, so I can't get up to speed to discuss with you all of the entanglements of trying to prove it - rather I have the problem of whether there is a case to be argued - including the arguments of the Building Commissioner. . . CHAIRMAN TOMLAN: Certainly simplifies the issue. MR. OAKLEY: Okay. . MR. WEAVER: . . .not sure that - I don't agree with the Building Commissioner or the Attorney, so I 'm really stuck here. I 'm just saying that, as I read this, and Peter - or Mr. Chairman - I 'd be delighted to have you tell me what's wrong with my conclusion up to this point. CHAIRMAN TOMLAN: No. There is nothing wrong with your conclusion at this point, Charles. It is eminently simple, practical, and down to earth, so, it is really a shame we didn't discover it twenty minutes ago. Let's move on. That being the case, let me go back to. . . MR. WEAVER: I 'm not sure it was the case but what I have in front of me says that was the. . . CHAIRMAN TOMLAN: I 'm looking ahead procedurally for the rest of the appellant's case. If this were the case, and the Board were to rule that it were the case, do you want to then proceed, as I would expect you to - to the use variance question? MR. GALBRAITH: Yes. PAGE 86 BZA MINUTES - 7/11/88 CHAIRMAN TOMLAN: Then let me ask the other members of - I rather agree with Charles - if you agree with Charles, then I think it would be most expedient if - before going to public testimony we essentially have a motion that essentially agrees with the interpretation - I don't see that - there is nothing to be gained more or less by going through it twice, right? By going through the public testimony twice - we would be much better served if Charles - or someone - would make a motion to the effect and - stated so clearly - we go ahead and have a motion and then Dirk can go on to the question of the use variance and Mrs. Bramble can put forward the rest of the evidence in that regard. We are all agreed? You understand what I. . . MR. GALBRAITH: I understand the motion. . . CHAIRMAN TOMLAN: Okay. Can we have a motion Charles, seeing as how you were the instigator in this instance? MR. WEAVER: I only have in front of me the Building Commissioner's letter of June 28, 1988. CHAIRMAN TOMLAN: We need a motion, though, essentially. MR. WEAVER: But, well, to try to pick out of that - the sum total, as I read it, is that the property had a non-conforming use as a multiple dwelling under R-2a, which I have difficulty agreeing with. But his final conclusion that "failing to obtain a Certificate of Compliance within the required time" disqualifies the property as having any grandfather rights - I agree with that and support the Commissioner's conclusion. CHAIRMAN TOMLAN: But we need a motion. MR. WEAVER: I move that the conclusion that the subject property - failing to obtain the required Certificate of Compliance within the PAGE 87 BZA MINUTES - 7/11/88 appropriate time of the amendment of the Ordinance is in fact a failure to qualify for grandfather rights. MR. SIEVERDING: I second the motion. CHAIRMAN TOMLAN: Would you be better served - improve the motion - to nail it back to Section 30.47? MR. WEAVER: Yes, I suppose. CHAIRMAN TOMLAN: Because - I think the findings of fact are useful in this regard. You understand what I 'm after? MR. OAKLEY: The question that I have is - I tend to agree with Charlie in agreeing with the Building Commissioner, but I 'm not sure that if Charlie had - you know, Charlie seems to have demonstrated that the point is moot and and it seems to me difficult to make an interpretation on a. . . MR. WEAVER: Well the appellant has asked for an interpretation and that is. . . MR. OAKLEY: And a person can ask for an interpretation even when they have no bearing on the case? MR. WEAVER: They have a right to that. CHAIRMAN TOMLAN: That's right. MR. WEAVER: You see here is essentially an order of the Building Commissioner based upon his determination that even though he assumed - or he believes that it had grandfather rights in 1977, that failure to meet the deadlines on Certificate of Compliance. . . MR. OAKLEY: Okay, I will accept it. MR. WEAVER: Maybe it is the right of the property to have grandfather rights under the zoning ordinance. . . MR. OAKLEY: I just don't want to get into a position where (unintelligible) . . PAGE 88 BZA MINUTES - 7/11/88 MR. WEAVER: I 'd not like to lead you into a position, in fact, I 'd be glad to have this polished up, if that's . . . . MR. OAKLEY: No, no. I 'm happy with it. MR. WEAVER: Well. . . MR. PECK: The interpretation is 30.47 is in fact the appellant did not apply for the variance. . . (unintelligible) CHAIRMAN TOMLAN: Well use conformed to regulations in effect before the amendment - that's the whole, essentially to quote - Charles you would have to make the motion I can't. MR. WEAVER: I move that the ruling of the Building Commissioner in the case of the property at 109 Harvard Place, that the property did not have grandfather rights under Section 30.47 of the Zoning Ordinance and therefore had to comply with the R-1b zoning requirements - is correct and that this Board supports his interpretation, and I so move. CHAIRMAN TOMLAN: Before - from a parlimentarian point of view - before we accept that, we have to make that a substitute motion. You have to essentially acknowledge that's a substitute motion for the other. . . MR. WEAVER: In other words that we strike the first motion. . . CHAIRMAN TOMLAN: Strike the first motion, yes. MR. WEAVER: This one will be substituted in its behalf. CHAIRMAN TOMLAN: Yes, okay? MR. WEAVER: Okay, I can do that after. . . CHAIRMAN TOMLAN: We've done that okay? And the seconder accepts? MR. SIEVERDING: That's fine. CHAIRMAN TOMLAN: Probably best to have this as a ballot and make it 1857a, unless there is further discussion? PAGE 89 BZA MINUTES - 7/11/88 ACTING SECRETARY DIETERICH: The vote on 1857a is 5 Yes and 0 No votes. CHAIRMAN TOMLAN: The Building Commissioner's interpretation - we are voting for the interpretation of the Building Commissioner but not on the same grounds as the Building Commissioner put forward. Now Dirk, if you want to - with Mrs. Bramble - address the questions of use variance, which. . . MR. GALBRAITH: I think most of the evidence I would like to present on that point is really already before the Board. I believe that granting a variance to permit more than the - what I am going to refer to as the two-family use which is presently permitted under the Zoning Ordinance. One - would not alter the character of the neighborhood - the character of the neighborhood as it presently stands is predominantly rental properties or multiple residents, in fact, we apparently had another application this evening - another property owner in the area - to install an apartment in her residence, which was granted by this Board. Second, I believe the property itself is unique in the regard that unless large families come back into vogue, which, I think most demographers tell us is not going to happen - it would be difficult to find a single family that would want to rent both the first and second floors of this property. The property is laid out on the first and second floors - seven bedrooms - it is very contiguous to the Cornell University and it is the type of housing that is more suitable for students than certainly it would be for a single family as far as the first and second floors are concerned. I believe that the appellant has shown an economic hardship here in that if the Zoning Ordinance were strictly enforced against her, PAGE 90 BZA MINUTES - 7/11/88 she could not operate this property at a sufficient level of income to enable her to meet her expenses - at least based upon the most current full years experience which I believe in this case is an average (unintelligible) property. I believe that property owners such as Mrs. Bramble is entitled - or at least economists or most realtors would say - is something like an eight percent return on the value of her property and if you make the assumption that the value of this property is some place around $150, 000.00 then Mrs. Bramble should be able to net out some place around $10, 000.00 a year. As it is, based on the figures that we have, if the Zoning Ordinance is strictly enforced against her, she is not going to derive any income but probably operate the property at a loss. Now I think after I finish here the neighbors are going to get up to speak and I think there is twenty of them and one of me and they are going to have a lot to say - I would hope that the Board in assessing this claim for a variance could make some reasonable accommodation between the needs of Mrs. Bramble and the needs of the neighbors. I believe that in this application, the Board could grant a variance for a two-family occupancy plus additional occupants of the - I 'm going to refer to it as the second floor - someplace between the four that has been allowed and the eight that has been requested. In other words there are several choices and I think that - my own belief is that a fair resolution of this matter would be to grant Mrs. Bramble some limited relief from the strict requirements of the ordinance to enable her to derive some reasonable amount of income from this property. Thank you. PAGE 91 BZA MINUTES - 7/11/88 CHAIRMAN TOMLAN: Questions from members of the Board? You stated you had the building for sale for a $150, 000.00 for three months, was it? MRS. BRAMBLE: Yes. CHAIRMAN TOMLAN: Has it been on the market at any other point? MRS. BRAMBLE: No. CHAIRMAN TOMLAN: It is now? MRS. BRAMBLE: Yes. MR. SIEVERDING: And you just (unitelligible) the property today? MRS. BRAMBLE: (unintelligible) MR. SIEVERDING: And it is being marketed as what size property? MRS. BRAMBLE: Whatever is legal. MR. GALBRAITH: There is no purchase contract that has been signed by Mrs. Bramble yet - she has had offers but they have been contingent upon obtaining this type of a variance. MR. SIEVERDING: So in other words you've got people who are interested in the property but only interested in the property as income? MR. GALBRAITH: Yes. MR. SIEVERDING: With four occupants? MR. GALBRAITH: No, with - I think we are talking in the neighborhood of six occupants. MR. SIEVERDING: I see, but your analysis is based on four occupants? MR. GALBRAITH: My analysis - yes, showing a net loss is based on four occupants. You see with the allowance of an additional two occupants would put the rentals on the property up to a level where it could be viably run. PAGE 92 BZA MINUTES - 7/11/88 MR. SIEVERDING: Right, assuming we weren't going to go through and actually investigate all these individual numbers which are actually long term capital expenses and which ones are. . . MR. GALBRAITH: We've got Jim Gardner's operating statement if you can deduce it better from that - or her tax return. CHAIRMAN TOMLAN: We probably have enough information here. MRS. BRAMBLE: The previous time I had this on the market there were no people interested as a family - first of all (unintelligible) and this time there have been no people interested as a family and I would never, myself, move there as a family on that intersection right there with all the multiple housing across the street. I moved there out of necessity because it was a better income, as far as inflation and some sort of retirement/pension plan for me than having my ex-husband give me "X" amount of dollars which he said he would not do, so I had no choice, and I took three children there, right on the edge of Collegetown which I did not like and I cannot imagine any family wanting to live in that environment unless they wanted to rent to students, which is why I was there and why Tania Dayanoff is next door. Now for the ten years that I lived there, there was absolutely no complaints in my neighborhood about anything - I rented to students (unintelligible) I don't see how any family is going to come and make an offer on this house. It would be incredible if they did, I live absolutely two blocks from Cornell University, which is surrounding me now and there would be no reason for a family to be there - it is on an intersection and has a very tiny back yard and it is not a place for children and I don't think one couple is going to live there unless they can rent it out, which is feasible. PAGE 93 BZA MINUTES - 7/11/88 CHAIRMAN TOMLAN: Thank you both. Is there anyone else who would like to speak in favor? [no one] Is there anyone who would like to speak in opposition? Let's start from the front and move our way back. You have to come up front - as with the previous cases, we begin, please, with your name and address. MS. MCALLISTER: My name is Ellen McAllister, I 'm here with my husband, Robert Frank, and we live at 221 Bryant Avenue, which is the property which backs up to Mary Bramble's property. I 'm sure that other people have plenty to say, I would just like to make a couple of observations, one is the assumption about the character of the neighborhood, which I feel is incorrect - the character of the neighborhood has changed somewhat, partly because of several of the units that are outlined there, that are illegally converted. However because of many of us in the neighborhood who are having families it is very much a family neighborhood, it is a family neighborhood that we are trying desperately to maintain. I think that the character of the neighborhood has already been altered to the degree that we are very concerned about. I 'd like to point out that we own a property that - I don't know exactly how many square feet it is, but I am sure that it has many, many more square feet than Mary Bramble's property. We are a single family, we have no boarders and we have no apartments in our house and we have no intention to do so, so I think the assumption that - first of all that no family would live there and that it is a house that is too large, is incorrect, because several of us in the neighborhood have already proven that to be not the case. PAGE 94 BZA MINUTES - 7/11/88 CHAIRMAN TOMLAN: Any questions from members of the Board before Ellen sits down? [none] Next? Again, the same procedure, name and address. . MR. FRANK: My name is Bob Frank, I live at 221 Bryant Avenue which is the property abuts the Bramble on the back side. I want to say first that I have no wish to see Mary Bramble suffer an economic hardship - I think none of us would have ever complained in this situation while Mary Bramble was living in that house and having boarders - however many they might have been, if that was her need to make ends meet - I think the situation that we don't want to see happen, is the situation that is happening in the house next to the one owned by David Felshew where there are legions of students there who make the amount of noise that essentially prevents him from living any sort of a decent family life. We have had difficulty with the Bramble property on a couple of occasions, particularly in the summer time when there have been stereos played loud through open windows that essentially blare out on our back yard making it impossible for us to carry on a normal family gathering in the back of our house. But the main point that I want to address was the economic point about the value of the property and the need to be able to earn a fair return on it. I think the notion of the property being worth $150,000. 00 in its current condition is essentially predicated on the idea that it will be a multiple use building - that's what 'creates that kind of value for a property like that and then to say that we have to radify what amounts to an illegal use for a property in order for the owner of the property to make economic rate of return on that inflated price doesn't make any sense. I mean, we are in the business of PAGE 95 BZA MINUTES - 7/11/88 upholding the zoning law that clearly requires that it not be a multiple use dwelling and the price that goes on that property in order to make expenses meet, is not the price that is commanded by a multiple use dwelling, that is just bad economic planning. CHAIRMAN TOMLAN: Any questions from members of the Board? [none] Thank you. Next? Again, begin with your name and address. MS. BROWN: My name is Susan Brown and I live at 227 Bryant Avenue, which is almost directly behind this property. I have lived there since 1971. When I moved into my house, this house was owned by the Cranches, as was previously stated, it was a single family house, what is now termed an accessory apartment. Then in 1975 Mrs. Bramble moved in with her children and you've heard the process, I don't need to repeat all that - of how many boarders took place at various times. As a person living in the neighborhood, there was of course never any complaints made while she was living there - because she was living there and it is very much a neighborhood and we all have concerns for each other. The drastic change came, in fact, when she moved away. I never went in the house - I never knew how many people were there - I didn't know where the bedrooms were - I only know what I saw and what I felt and the change in the neighborhood and that change was drastic. There was a change in the noise level - change in the number of cars in that neighborhood that is already incredibly over stressed with cars and a change in the way the house appeared on the outside. It was no longer taken care of because the owner was no longer occupying the residence. The lawn wasn't maintained, the house wasn't painted on the outside - it looked very different. The character was different. The character of the - I would like PAGE 96 BZA MINUTES - 7/11/88 to respectfully disagree strongly with Mr. Galbraith's characterization of the neighborhood - it is not a rental neighborhood. If I can just use this prop - this is the property in question - these houses - all behind, and, in fact, all the way down the street - all these houses are all single family houses. In addition, this house is single family house - there is a single family house here and all of the ones that are, in fact, multiple - they are certainly not illegal, so in my mind that does not characterize this neighborhood as a rental neighborhood. Again, to talk a little bit about the character of the neighborhood - it has changed drastically over the years in terms of the parking problems, the noise problems and it is very much (unintelligible) very sensitive to the point of going over the edge to more rental property and less family feeling, even though it certainly (unintelligible) residential single family houses. There are, in fact, not twenty people here tonight, but there are fifteen people here tonight from the neighborhood - all who live within two hundred foot limit - all feeling (unintelligible) that they would not want this house allowed - what was, in fact, not a grandfathering question - was the question of an illegal conversion and they are now asking for that illegal conversion be continued and I feel very strongly that it should not be continued. Another point, the house I have not been in it recently - was at one point a very beautiful house and I know of - personally - two families who live in our neighborhood - looking for larger homes, wanting to stay in the neighborhood and were not able to find larger homes in the neighborhood and therefore moved out of the neighborhood - sadly so. At the time they were looking this house PAGE 97 BZA MINUTES - 7/11/88 was not on the market, this happened a year or so ago. I also think the question of hardship is not a question that has been clearly established because hardship requires showing that it cannot be sold for a legal use and I am not sure that that has been proven. The house was on the market for three months but I am not sure that that is sufficient time to say that it could not be sold as a single family house. CHAIRMAN TOMLAN: Questions from members of the Board? [none] Thank you. Next? MS. SHELHAUS-MILLER: My name is Christine Shelhaus-Miller, I live at 213 Bryant Avenue, which is within two hundred feet of this property. I live with my husband Jim Miller and my daughter Alexis, who is a year and a half old. I guess I would just like to make two points - really emphasize two points that other people have made. The first is that the neighborhood is really developing for families and, in fact, although Mrs. Bramble refers to the neighborhood as Collegetown, I think the rest of us refer to it as Belle Sherman, Bryant Park, and we don't see ourselves living in the middle of Collegetown at all. I think if you came to the neighborhood and you saw the children playing in the street and you saw those mothers with babies in strollers trying to push our strollers on sidewalks that are blocked by too many cars in the driveways, such as Mrs. Bramble's - you would see what a problem it is to have a property in the neighborhood that does not have balance in it and does not support zoning ordinances. I think there are couple of problems, one is that there is a very big difference between family owned property with an accessory apartment and eight or nine unrelated people who are usually PAGE 98 BZA MINUTES - 7/11/88 students living in the house and I think that has been down-played by Mrs. Bramble and Mr. Galbraith and I think that that is a very saleable point here. I think the other point is that, as Susan Brown said, I also know of several families who have been looking to move to bigger homes in the neighborhood and, in fact, within the last five months my husband and I had an addition to our house because there aren't larger homes for sale in the neighborhood. In addition there is another family on the street doing the same thing. So I think that there is a market for large homes in the neighborhood. The other thing that I think is important is that - I think this problem was created by lack of enforcing the Zoning Ordinances and I think it would be very difficult for the neighborhood if we felt that people could simply not comply with the Ordinances and could come to the Zoning Board and say, we have been out of compliance therefore allow us to continue to be out of compliance and make it legal. That would be very discouraging and, in fact, would tip the neighborhood in the direction of rental property because you can make a lot more money renting to eight or nine students than to a family and certainly you could sell a house for a lot more to a landlord than you can to a family. CHAIRMAN TOMLAN: Questions from members of the Board? [none] Thank you. Next? I think you know the procedure. MR. BOOTH: Yes sir. My name is Dick Booth, I live at 510 Mitchell Street which is not within two hundred feet of the property but I am the alderman for the Third Ward and I believe under the existing rules that you will, hopefully, allow me to speak. CHAIRMAN TOMLAN: True. PAGE 99 BZA MINUTES - 7/11/88 MR. BOOTH: I don't detect overwhelming enthusiasm. I would like to begin with a question and the question I suppose in a way reflects my own ignorance, but does the Board have in its records, showing of what was paid for this property in 1979 and what the monthly mortgage was at that time? CHAIRMAN TOMLAN: I don't believe so. There is nothing in the file. MR. BOOTH: There is nothing in the record that contains that information? CHAIRMAN TOMLAN: There is nothing in the record that contains that information, no. MR. BOOTH: Thank you. As you know, under State law, in this State, the test for any use variance is very hard and that is essentially that the applicant has to show that none of the uses which are allowable in that area of the Zoning Ordinances are in fact feasible on that property and it has to be shown in dollars and cents appearance. In this case, listening to what I have heard tonight and - particularly in light of the fact that you just stated - it seems to me that there has not been any shown - the economics of this particular structure are such that it cannot be utilized in a manner that is consistent with the Zoning Ordinance. A number of persons have testified that there are numerous homes in this area that are consistent with the Zoning Ordinance and there is a demand for them, in my experience throughout the Ward, is that there is a heavy demand for single family homes. This is a residential portion of the Third Ward, it is true that it is a street that is on the line, in a sense, in terms of the balance between residential and rental uses, but I think that, as it has PAGE 100 BZA MINUTES - 7/11/88 been shown, that line being maintained in this building is an important part of that. I don't think that statements that a piece of property was on the market for several months, in and of themselves, demonstrate the requisite showing of hardship. I think this has been a hard case, it is a long case, it has personal aspects to it that are important but I think the Board has to take a look at what the purpose of the zoning variance is - what the Zoning Ordinance is - and the importance of maintaining neighborhoods from intrusion and uses that are not compatible. I would urge you to deny the use variance, I think to grant the use variance under these circumstances would lead to greater intrusions into this neighborhood and establish a precedent that would be very inappropriate, it seems to me, in terms of the furtherance of the implementation of the Zoning Ordinance in the future. Thank you. CHAIRMAN TOMLAN: Questions from members of the Board? (none) Thank you. Next? MS. PEDERSON: I 'm Jane Pederson, 206 Elmwood Avenue, I'm not within two hundred feet but I would like to make a brief statement for the Civic Association. CHAIRMAN TOMLAN: Has the Civic Association authorized you? MS. PEDERSON: Yes, I 'm Vice President of it and I'm Chairman of the Zoning Enforcement Committee. May I proceed? CHAIRMAN TOMLAN: Briefly. MS. PEDERSON: Yes. I simply would like to have it on record that this property has been one of several in the area that the Civic Association has brought to the attention of the Building Commissioner over the past three years as having been out of compliance - it is one (unintelligible) and it is one we have been PAGE 101 BZA MINUTES - 7/11/88 concerned about and we would definitely oppose the variance. Also I would like to point out that there families represented in the back of the room who are not necessarily speaking tonight but there is one family from either side - one house down in each case - of this property and one from across the street, at that intersection, who all raise families there and children there and who are committed to the neighborhood and are even reinvesting in their properties and improving them, so that might be just another piece of information. . . CHAIRMAN TOMLAN: Fine. So noted. Any questions? [none] Thank you. Is there anyone else who would like to speak in opposition? [no one] Well, then the case is ours. DISCUSSION ON APPEAL NUMBER 1857b FOR 109 HARVARD PLACE CHAIRMAN TOMLAN: Do we need further discussion? MR. SIEVERDING: I just have a question. What is now the legal use of the property? Can it be used as a two-family or does it have to revert back to a single-family? ACTING SECRETARY DIETERICH: Tom had made some statement as to what was permitted and what he felt was grandfathered on the back of page 2 of the listing of April 28, 1988 - owner-occupied. MR. PECK: Where is it? MR. SIEVERDING: The middle of page 2. . . of the April 28th listing. CHAIRMAN TOMLAN: End of the first paragraph. MR. SIEVERDING: So basically, if it is owner-occupied - well what it says is that if it is owner-occupied, the first and the second floor can be occupied by family and no more than two unrelated individuals and the apartment can be occupied by two unrelated. If PAGE 102 BZA MINUTES - 7/11/88 not owner-occupied, then it is just the main unit - it can be a family or an individual plus. . . MR. PECK: It is an R-1b zone. CHAIRMAN TOMI,AN: Right. Clear? Any further questions? ACTING SECRETARY DIETERICH: I think what Tom has said is that in other words the R-1 zone district applies to the main unit, with the apartment grandfathered. So it appears that it would have rights for two family dwelling. The previous comments - one owner-occupied and not owner-occupied is a stipulation of the R-1 zone. If it is not owner-occupied, the (unintelligible) applies, if it is owner-occupied (unintelligible) appears to be grandfathered. MR. SIEVERDING: So there are, in fact, a variety of options that could be employed in the marketing of the property? CHAIRMAN TOMLAN: Sure. MR. SIEVERDING: And we haven't seen any evidence that that has been done? CHAIRMAN TOMLAN: True, in my opinion. MR. SIEVERDING: Secondly, I think the expense statement is not at all clear, whether the property can be operated profitably if it were purely a rental property, so I think that is somewhat beside the point relative to the options that are available, just in terms of marketing the property. CHAIRMAN TOMLAN: So, can we move a little closer to a motion? You are spelling out, in essense, the findings of fact and it is moving on. PAGE 103 BZA MINUTES - 7/11/88 DECISION ON APPEAL NUMBER 1857b for 109 HARVARD PLACE MR. SIEVERDING: I move that the Board deny the use variance requested in Appeal Number 1857b. MR. PECK: I second the motion. PROPOSED FINDINGS OF FACT: 1. It has not been demonstrated that strict application of the Ordinance would produce undue hardship in that there are a variety of occupancy types that are available under the current zoning and by rights that are invested in the property and it hasn't been demonstrated that those have been used in the marketing of the property. 2. It is not at all clear from the income and expense statement submitted that the property can't be operated profitably. 3 . The hardship created is not unique to this proeprty and that all properties in this zone share a somewhat similar burden. 4. This denial of the variance observes the spirit of the ordinance and would not change the character of the district but would actually move it toward what was intended with the various zoning changes that have taken place in the area over the last couple of years. VOTE: 5 YES; 0 NO USE VARIANCE DENIED. PAGE 104 BZA MINUTES - 7/11/88 ACTING SECRETARY DIETERICH: The next appeal is Appeal Number 1858 for 321 College Avenue: Appeal of Craig L. Schaufler for an area variance for deficient off-street parking, deficient lot size, and deficient rear yard setback, under Section 30.25, Columns 4, 6, and 14 of the Zoning Ordinance, to permit the construction of a 300 square foot addition to the existing retail building at 321 College Avenue (College Liquor) for additional storage space. The property is located in a B-2b (Business) Use District in which the existing and proposed uses are permitted; however, under Section 30.57 the appellant must first obtain an area variance for the listed deficiencies before a building permit or certificate of occupancy can be issued for the proposed addition. CHAIRMAN TOMLAN: If you would begin by identifying yourself and where you live. MR. SCHAUFLER: I 'm Craig Schaufler and I live at 75 Maplewood Road. You have before you a request - let me just give you a little background - the property at one time was continuous with the property next door, which is now owned by the Turk Brothers and it was my aunt who owned the whole property - it was a hundred foot lot. Our family ran the business and occupied the thirty foot section of that where there was a curbing. So there is a twenty-five foot building, which is the building that is there now, a five foot open space, then a curb, and then there was a gas station. Then the property was divided - our family kept the five foot section next to the building - the owners next to us built PAGE 105 BZA MINUTES - 7/11/88 right up to the property line on that side. On the other side - Avramis has built right up - again - to our building on the other side. In the rear, the elevation is such that the properties behind it, which Mr. Neferis owns, are actully our roof level. So what I have is a five foot alleyway which goes actually nowhere. It does nothing but provide an empty space which is unusable except for, I don't know what. I certainly don't feel that it has any use for any purposes - I don't feel that there is anything back there - it is all concrete and block. I wouldn't suspect any modern day fire fighting or the equipment would be able to get back in there without some hazard to the fire fighters. (unintelligible) the additional space. Now in the past we have come before the Board with more ambitious plans, at one time for a second floor, before my dad passed away - he was prepared to come before the Board but he never did, so we scaled down to simply filling in that first floor space, fronting off the street so that there isn't this five feet gapping hole. I understand from the building office, that because of the size of the lot, I need to come before the Board to ask for this variance and I feel that it is a unique situation. CHAIRMAN TOMLAN: Questions from members of the Board? MR. OAKLEY: I have one question about your parking requirement off by one car. And. . . going from three spaces to four spaces. MR. SCHAUFLER: I 'm asking for a variance for that. MR. OAKLEY: I was just wondering if you had made any effort to find one space? To rent one space, actually. I realize there is no customer parking. MR. SCHAUFLER: Right. Well we do have a space rented from the motel. PAGE 106 BZA MINUTES - 7/11/88 MR. OAKLEY: From Collegetown Motel? MR. SCHAUFLER: Collegetown Motel, yes. MR. OAKLEY: Okay, you do have one space there? (unintelligible) MR. SCHAUFLER: Yes. CHAIRMAN TOMLAN: I notice you are taking on some additional business by virtue of the liquor store closing down across from you? MR. SCHAUFLER: (UNINTELLIGIBLE) CHAIRMAN TOMLAN: Just wondered whether I read that sign correctly, in front of the other store. MR. OAKLEY: What does the Telephone Company do with the telephone that is there now? CHAIRMAN TOMLAN: Sort of ignore it. MR. SCHAUFLER: Well I 'm going to have to ask them to move that and hopefully we can accommodate it within the building there now. CHAIRMAN TOMLAN: Useful. I use that telephone on occasion. MR. SCHAUFLER: I 'd like to get it inside the door, at least. CHAIRMAN TOMLAN: I understand. MR. SCHAUFLER: It goes out of order quite frequently. . . CHAIRMAN TOMLAN: Particularly in the freezing weather. Further questions? [none] Thank you. is there anyone who would like to speak in favor? [no one] Is there anyone who would like to speak in opposition? [no one] The case is ours. 1158 PAGE 107 BZA MINUTES - 7/11/88 DECISION ON APPEAL NUMBER 1858 FOR 321 COLLEGE AVENUE The Board of Zoning Appeals considered the request of Craig L. Schaufler for an area variance to permit the construction of a 300 square foot addition to the existing retail building at 321 College Avenue for additional storage space. The decision of the Board was as follows: MR. WEAVER: I move that the Board grant the area variance requested in Appeal Number 1858. MR. OAKLEY: I second the motion. PROPOSED FINDINGS OF FACT: 1. The proposed expansion will not change the character or use of the property or influence the character of the neighborhood. 2 . The practical difficulties are the existing structures and lot arrangement that currently has a five foot useless strip of property that would - by being developed into a building - improve the appearance of College Avenue - 300 block. 3 . That there is a severe parking problem in the neighborhood and this property owner, and others there, would find it most difficult - if not impossible - to increase their parking. VOTE: 5 YES; 0 NO AREA VARIANCE GRANTED PAGE 108 BZA MINUTES - 7/11/88 ACTING SECRETARY DIETERICH: The next appeal is Appeal Number 1859 for 711-713 West Court Street: Appeal of David R. Auble for an area variance for a deficient side yard setback under Section 30.25, Column 13 of the Zoning Ordinance, to permit the construction of a two-story, 1200 square foot (building footprint) addition to the rear of the existing commercial building at 711-713 West Court Street (Excel) for additional space for an electronics assembly operation. The property is located in a B-4 (Business) Use District in which the existing and proposed use is permitted; however, under Section 30.57 the appellant must first obtain an area variance for the deficient side yard before a building permit or certificate of occupancy can be issued for the proposed addition. CHAIRMAN TOMLAN: Your name and address please. MR. AUBLE: I 'm David R. Auble, 121 Winston Drive. CHAIRMAN TOMLAN: And you want to say, perhaps, a few words about why you need an addition extending the building. . . MR. AUBLE: Yes we currently have a property which met past zoning requirements. There are two buildings, one is a commercial building, which I am operating my business out of now and the other is a home that the current owner leases. The home is illegal to the current setback requirements and we are not proposing any change to the home but to the other building which does not violate the zoning requirements. The space required is for additional employees to expand the business. We had gone in for HUD funding and Tompkins County Area Development and other Agencies to create PAGE 109 BZA MINUTES - 7/11/88 ten new positions in the Electronics Assembly Operation. Without the additional space we will not be able to expand. CHAIRMAN TOMLAN: Am I correct in reading the plan that essentially you have paved over the front yard in front of the metal building that seems to be half drive and half asphalt? MR. ALIBLE: Yes that is correct. CHAIRMAN TOMLAN: And that is essentially where you get your required parking? MR. ALIBLE: Yes. ACTING SECRETARY DIETERICH: (unintelligible) parking in front. CHAIRMAN TOMLAN: Might I ask also - the property which is for sale on the North Meadow Street side - do you know if, in effect, it has been sold to someone who wants to keep it a residence? MR. AUBLE: I know, in fact, that it has been sold to someone who wants to make that into a parking lot. CHAIRMAN TOMLAN: That's interesting. MR. AUBLE: And possibly use the house as a rental for office space of some type of business use. CHAIRMAN TOMLAN: Questions from members of the Board? MR. SIEVERDING: The deficiency that we are addressing here relating to minimum size yard of the house is all related to the work that he wants to do? CHAIRMAN TOMLAN: That's right. ACTING SECRETARY DIETERICH: The deficiency is of the property and the house creates the deficiency. CHAIRMAN TOMLAN: Anyone else, any questions? MR. PECK: You've got ten parking spaces in there? PAGE 110 BZA MINUTES - 7/11/88 MR. AUBLE: Yes there is about ninety feet there - there is also space behind the home if we need additional space. CHAIRMAN TOMLAN: You haven't heard anything negative from the people on the other side of you, have you? MR. ALIBLE: No, as a matter of fact the people on the other side - the person who owns the home is a sister of the gentleman who I 'm buying from and she has been very encouraging. CHAIRMAN TOMLAN: There was a letter that came today and everyone received a copy. MR. ALIBLE: Was that in regards to the parking? CHAIRMAN TOMLAN: Yes. Have you not seen the letter that came in? MR. AUBLE: No I don't believe so. MR. PECK: Here, you can look at mine. CHAIRMAN TOMLAN: Thank you Jack. You now have a copy. It is basically the question about the parking. MR. RUBLE: Yes, as a matter of fact I did get a letter from them directly. They also seemed to be - I think mine may be a little bit different - they were encouraging us to do exactly what we propose to do. CHAIRMAN TOMLAN: No further questions? Let the record show there is no one else in the audience to be for or against, so the case is ours. PAGE 111 BZA MINUTES - 7/11/88 DECISION ON APPEAL NUMBER 1858 FOR 711-713 WEST COURT STREET The Board of Zoning Appeals considered the request of David R. Auble for an area variance to permit the construction of a two-story, 1,200 square foot addition to the rear of the existing commercial building at 711-713 West Court Street for additional space for an electronics assembly operation. The decision of the Board was as follows: MR. SIEVERDING: I move that the Board grant the area variance requested in Appeal Number 1859. MR. WEAVER: I second the motion. PROPOSED FINDINGS OF FACT: 1. There are practical difficulties that would make compliance with the ordinance difficult. That practial difficulty concerns either acquiring additional property to correct the deficiency for the house that is on this property or moving it - both of which are financially infeasible and would place a hardship on the owner. 2. The proposed improvements to the property have no effect at all on the deficiency. 3 . The proposed improvements in fact removes one deficiency, parking, and brings that into compliance with the Ordinance. 4. The exception observes the spirit of the Ordinance and is in compliance with the character of the neighborhood which is a business zone where this use is allowed. VOTE: 5 YES; 0 NO AREA VARIANCE GRANTED PAGE 112 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 1847, 1854 , 1855, 1856, 1857, 1858 and 1859 on July 11, 1988 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. 46'�/'4, Barbara C. Ruane Recording Secretary Sworn to before me this /946 day of L�- LLt , 1988 �'- Notary Public JEAN J.HtANKMS019 NOTARY FUELIC.STATE OF NEW YURR NO.5E:-i CCOS00 QUALIFIED IN TOTAPKINS COU MY C061MISSION EXPIRcS APRIL 90.iH 113