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HomeMy WebLinkAboutMN-BZA-1988-10-03 BOARD OF ZONING APPEALS COMMON COUNCIL CHAMBERS CITY OF ITHACA NEW YORK OCTOBER 3 , 1988 TABLE OF CONTENTS APPEAL NO. 1870 Levi Wells WITHDRAWN 140 Coddington Road APPEAL NO. 1871 P.J. & L.D. Butterfield 3 130 Pearsall Place APPEAL NO. 1871 Decision 11 APPEAL NO. 1872 Michelle Fuller 12 108 Franklin Street APPEAL NO. 1872 Decision 18 APPEAL NO. 1873 Carey Property Management 19 203-205 Eastwood Avenue APPEAL NO. 1873 Discussion 33 APPEAL NO. 1873 Decision 46 CERTIFICATION OF RECORDING SECRETARY 47 BOARD OF ZONING APPEALS COMMON COUNCIL CHAMBERS CITY OF ITHACA NEW YORK OCTOBER 3, 1988 CHAIRMAN TOMLAN: Good evening. I'd like to call to order the October 3, 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: Bea MacLeod Charles Weaver Jack Peck John Oakley Herman Sieverding Michael Tomlan, Chairman of the Board Peter Dieterich, Acting Secretary to the Board, Acting Building Commissioner and Acting Zoning Officer Barbara Ruane, Recording Secretary The Board is going to hear each case in the order listed in the Agendum. First we will hear from the appellant and ask that he or she present the arguments as succinctly as possible and then be available to answer questions from members of the Board. We will then hear from those interested parties who are in support of the application, followed by those who are opposed to the application. I should note here that the Board considers "interested parties" to be persons who own property within two hundred feet of the property PAGE 1 BZA MINUTES - 10/3/88 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 an "interested party" . While we do not adhere to the strict rules of evidence, we do consider this a quasi-judicial proceeding and we base our decisions on the record. The record consists of the application materials that are 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 and when there are any, and the record of tonight's hearing. Since a record is being made of this hearing, it is essential that anyone who wants to be heard come forward and speak directly into the microphones that are opposite me here so that the comments can be picked up by the tape recorder and heard by everyone in the room. Extraneous comments from the audience will not be recorded and therefore will not be considered by the Board in its deliberations on the case. We ask that everyone limit their comments to the zoning issues of the case and not comment on aspects that are beyond the jurisdiction of this Board. After everyone has been heard on a given case, the hearing on that case will be closed and the Board will deliberate and reach a decision. Once the hearing is closed, no further testimony will be taken and the audience is requested to refrain from commenting during our deliberations. It takes four votes to approve a motion to grant or deny a variance or special permit. In the rare cases where there is a tie vote, the variance or special permit is automatically denied. Are there any questions from members of the audience about our procedure? [none] Then may we proceed to our first case. Is there anyone here for Appeal PAGE 2 BZA MINUTES - 10/3/88 Number 1870, the first case on the Agendum? [no one] We've had mixed signals as to whether in fact anyone would appear. There is no one present for that particular case, as we had more or less suspected. Moving right along. ACTING SECRETARY DIETERICH: Okay then, the first appeal is Appeal Number 1871 for 130 Pearsall Place: Appeal of Philip J. and Lois D. Butterfield for an area variance for deficient setbacks for one side yard and the rear yard, under Section 30.25, Columns 13 and 14 of the Zoning Ordinance, to permit the construction of a small addition to the side of the existing single-family home at 130 Pearsall Place for a bathroom and entry way. The property is located in an R-1b (Residential, single-family dwellings) Use District in which the proposed use is permitted; however, under Sections 30.49 and 30.57 the appellants must first obtain an area variance for the listed deficiencies before a building permit can be issued for the proposed addition. A second dwelling unit on the property is "grandfathered" under the Zoning Ordinance; no work is being done on this unit. CHAIRMAN TONLAN: Are the Butterfields here? If you would come forward please. If you would begin, for the record, by identifying yourself and where you live, the tape recorder can't see you, it can only hear you. MRS. BUTTERFIELD: Lois D. Butterfield, 130 Pearsall Place. CHAIRMAN TONLAN: Good to have you here. Do you want to say a couple of words perhaps about why you want to do what you want to do? PAGE 3 BZA MINUTES - 10/3/88 MRS. BUTTERFIELD: I don't know how many ways there is to say that you would like to have another bathroom in your house - one on the ground floor and I think everything that I have presented speaks for itself. I have written exactly the reasons why I would like to do this. We've been trying to do it for twenty-one years and could not find any place - we have a house that goes up and down like this - and there is just no place to put one without an addition. I believe the addition will enhance the neighborhood, I believe it will enhance the appearance of the whole house actually. CHAIRMAN TOMLAN: Don't go away yet. Any questions from members of the Board? This is our turn to ask you questions. MR. OAKLEY: Yes, I have a question. I think that I understood from the Appeal - my understanding is that you are going to combine the two lots? MRS. BUTTERFIELD: Yes. Well the addition will go into the lot by a foot or two. ACTING SECRETARY DIETERICH: That's required, that's necessary. MR. OAKLEY: That's required? Okay. ACTING SECRETARY DIETERICH: Otherwise you end up with a problem in the future. . . MR. OAKLEY: Yes, I thought so. I just wanted to -make sure that we were doing the whole lot - but it is five feet of the lot or whatever. MR. SIEVERDING: It is all of lot 35. . . MR. OAKLEY: All of lot 35 is being. . . CHAIRMAN TOMLAN: Not just a piece of it. MR. PECK: This is going to be one lot in the end and not two lots. MRS. BUTTERFIELD: I hope so. PAGE 4 BZA MINUTES - 10/3/88 MR. PECK: Well that's kind of critical. ACTING SECRETARY DIETERICH: Yes. It will be part of the building - when the building permit is applied for it will be deeded to a single lot. MR. WEAVER: That would require sub-division to take it away and they would have to start over again. ACTING SECRETARY DIETERICH: I don't think it requires sub-division when you combine property. MR. WEAVER: No, I say - the next step, if they ever wanted to go back. MRS. BUTTERFIELD: The lot that we are talking about has mostly served as a play space for kids in our neighborhood - I 'd like to keep it that way and I would like to see. . . it is not the kind of lot you'd want to build a house on, in fact it would be very irresponsible to do so. MR. OAKLEY: Should we ask questions about the parking spaces? CHAIRMAN TOMLAN: Please do. I was waiting for you to. MR. OAKLEY: I 'm not quite sure. . . you have two parking spaces? MRS. BUTTERFIELD: Yes. MR. OAKLEY: They appear to be not entirely on your property for one thing and also are likely to be non-conforming - or they are non-conforming at the moment, actually. MRS. BUTTERFIELD: That I have no knowledge of. MR. OAKLEY: Is there any way to move those parking spaces toward the back? MRS. BUTTERFIELD: Towards the back? MR. OAKLEY: Officially you are not supposed to use parking spaces. . . (unintelligible) PAGE 5 BZA MINUTES - 10/3/88 MRS. BUTTERFIELD: I suppose so, I have no idea - we didn't do it. MR. OAKLEY: Okay. MRS. BUTTERFIELD: It would cost a lot of money. I will say, the whole street is like that - that is where everybody's parking spots are on the whole street. There is not a lot of off-street parking on the street. MR. OAKLEY: So is the expense a result of the downward grade or. . MRS. BUTTERFIELD: I really don't know, I'm totally ignorant about this - this is the first time I was aware of this. MR. WEAVER: Let's try to clear this up, please. The remark says "the existing parking spaces may not be in compliance. " Are they or aren't they? ACTING SECRETARY DIETERICH: Well right now the Zoning Ordinance talks about a driving lane. If the property is less than a certain width it is - once the properties have been combined, it is probably not a problem, except that if the parking spaces are not on the property then you do have a problem - width-wise - because of the additional width that you get when you combine those two properties. That may not be a problem but that they are not fully on the property or in the property is the. . . MR. WEAVER: So if a variance is granted subject to the filing of a deed that will incorporate the two lots, it will be in compliance, is that correct? ACTING SECRETARY DIETERICH: It says "if a property is less than fifty feet wide you can only have a strip twelve feet wide and then you can park that way" - if it is wider than that, then you can have something on the order of twenty-five percent of the parking - so width-wise, yes, but if the parking space is partially off the PAGE 6 BZA MINUTES - 10/3/88 property and then entirely on the property, then you do have a problem. . . MR. WEAVER: Once that becomes one property. . . . ACTING SECRETARY DIETERICH: If you push them forward you would be all right, yes - width-wise and depth-wise. MR. OAKLEY: I just want to make it clear in my mind that perhaps we should look at the particular thing because it strikes me repeatedly that you are saying that the larger a person's lot the less they have to do about getting their parking out of their front yards, is that. . . . ACTING SECRETARY DIETERICH: Well it says - Section 30.37, page 30.31, Paragraph B & C, it says "in all residential districts, parking in the front yard of a lot which has a width at street line of fifty feet or less shall be restricted to parking within a driveway that is perpendicular to the street which is not more than twelve feet wide for the portion that passes through the front yard. " Then it goes on and says "in all residential districts, parking in the front yard lot which has a width at street line of more than fifty feet shall be restricted to an area not greater than twenty-five percent of the total area of the front yard including turn-around and other vehicle maneuvering areas and driveways leading to the garage and parking areas. " So once those lots are combined - gets wider - because there are two slots, I still don't believe they are anywhere near to twenty-five percent. But you have to push them back behind the property line. CHAIRMAN TOMLAN: But the question of depth, I still think we need to address, how far into the lot? MR. WEAVER: We don't agree that there are two driveways? PAGE 7 BZA MINUTES - 10/3/88 ACTING SECRETARY DIETERICH: Well according to the diagram that I have here, it looks like there are two parking slots. MRS. BUTTERFIELD: There is one on the cottage side which is on the other side from where the addition will be and there is one on the side where the addition is going. I'm not clear - whose property is, this on - on the City's? MR. WEAVER: No. MR. OAKLEY: On the City right-of-way. MRS. BUTTERFIELD: The City property, okay. This was not written down as something I should look up when I went through this - I 'm kind of in the dark about this. MR. SIEVERDING: Would there be a zoning problem if both of those parking spaces were pushed to within the property line and out of the City right-of-way? ACTING SECRETARY DIETERICH: . . .I suppose not. CHAIRMAN TOMLAN: If the parking spots were off the sidewalk, on to the property, there would not be a problem, that's what we were getting to. MR. WEAVER: That's what I understand. Okay. MR. SIEVERDING: So if we accept this as an issue, I mean, if we are going to have a condition that says that there is going to be a deed on file before the variance or building permit is issued (unintelligible) couldn't another condition that those parking spaces be located fully within the property line - south property line and out of the City right-of-way? MR. PECK: Are we talking about twelve feet? ACTING SECRETARY DIETERICH: Twelve feet is the width. . . CHAIRMAN TOMLAN: Twelve feet is the width, not the depth. PAGE 8 BZA MINUTES - 10/3/88 MR. PECK: I know. I meant on the drawings. The rough sketch doesn't tell you very much except a bunch of questions marks. CHAIRMAN TOMLAN: That's right. MR. PECK: But on the other picture, it has property stakes marked twelve feet back from the road, is that what we are talking about? CHAIRMAN TOMLAN: Good question. The property stake would be the property line, the question is whether Pearsall Place is a public street? MR. PECK: Don't look at me for that. CHAIRMAN TOMLAN: That may give rise to why situations are the way they are. MR. OAKLEY: It doesn't say "not a City street. " CHAIRMAN TOMLAN: It doesn't say "not a City street", that's true. ACTING SECRETARY DIETERICH: I guess I 'd have to check into that. MR. SIEVERDING: I 'm sure when Elva Holman was on Council that she made sure Pearsall Place was a City street. CHAIRMAN TOMLAN: Let's not jump to conclusions. Charles? MR. WEAVER: I 'm not terribly interested except that the perpendicular parking in two separate driveways on the same property meet their requirements seems not to be covered by the Ordinance and it seems to me that it has two parking spaces, whether they are far enough from the street or not - no one other than Miller knows. CHAIRMAN TOMLAN: Well it doesn't appear that they are and I think that is what is being raised. MR. WEAVER: May I suggest that our action - rather than trying to do a retroactive parking thing - we have, it seems to me, no hazard created - I see no reason why the parking on the public PAGE 9 BZA MINUTES - 10/3/88 right-of-way doesn't meet the parking ordinance and any time the City or for that matter, a complaint arises about the parking on the public right-of-way - hurrah for whoever has to handle the thing. That has nothing to do with zoning at the present moment. MR. OAKLEY: (unintelligible) has to be dealt with with the alternative side parking problem. MR. WEAVER: I 'm just saying, it'll get cleared up about forty years from now if they ever put a sidewalk in there and I just can't see this being encumbered by a worry about parking in this specific case. CHAIRMAN TOMLAN: Bea are you up to speed? MS. MACLEOD: It just seems to me that this is not what has been appealed for - she has appealed for an addition. CHAIRMAN TOMLAN: Well that's one way to look at it certainly. Any further questions of the appellant? [none] She has been very patient listening to our jabbering I think. Thank you for your patience. Is there anyone else who would like to speak on behalf of granting this variance? [no one] Is there anyone who would like to speak in opposition? [no one] Well then, we can continue jabbering. The case is ours. PAGE 10 BZA MINUTES - 10/3/88 DECISION ON APPEAL NUMBER 1871 FOR 130 PEARSALL PLACE The Board of Zoning Appeals considered the request of Philip J. and Lois D. Butterfield for an area variance to permit the construction of a small addition to the side of the existing single-family home at 130 Pearsall Place for a bathroom and entry way. The decision of the Board was as follows: MR. SIEVERDING: I move that the Board grant the area variance requested in Appeal Number 1871 with the condition that the appellant present to the Building Department a deed which shows that the two lots have been combined, thereby giving adequate side yard to that portion of the house where the addition is to be built. MR. WEAVER: I second the motion. PROPOSED FINDING OF FACT: 1. There are two deficiencies - a side yard and a rear yard. The side yard deficiency is not at all affected by the proposed addition and the rear yard deficiency will not be exacerbated by the proposed addition given that the line of the addition is in line with the rear of the house. VOTE: 6 YES; 0 NO GRANTED WITH/CONDITION PAGE 11 BZA MINUTES - 10/3/88 ACTING SECRETARY DIETERICH: The next appeal is APPEAL NUMBER 1872 FOR 108 FRANKLIN STREET: Appeal of Michelle Fuller for a variance from the minimum setback requirements of Section 35.4 of the Swimming Pool Ordinance, to permit the installation of an above-ground swimming pool in the rear yard at 108 Franklin Street. The property is located in an R-2b (Residential, one- and two-family dwellings) Use District in which the proposed use is permitted; however, the appellant must first obtain a variance for the setback requirements before a permit can be issued for the proposed swimming pool. CHAIRMAN TOMLAN: Good evening. If you would begin by identifying yourself and where you live. MS. FULLER: My name is Michelle Fuller and I live at 108 Franklin Street. I would like to install an above-ground pool which is a gift from my parents, in my back yard. My husband and I have three children who love the water. I am a house wife at home and I need a variance for my back yard for the pool. CHAIRMAN TOMLAN: Questions from members of the Board? Is the swimming pool a pre-fabbed unit - that is, it comes in a standardized form - size - shape and dimension? MS. FULLER: Yes. CHAIRMAN TOMLAN: I assumed it was but I was just asking to make sure. What I 'm leading to is, is there any way - have , you explored other locations and other sizes - I mean, how did you arrive at this? MS. FULLER: No, because right now it is in my father's yard, as of now, and he is giving it to me because he is moving. . . PAGE 12 BZA MINUTES - 10/3/88 CHAIRMAN TOMLAN: A hand-me-down swimming pool? MS. FULLER: Yes. And so I can't make it any smaller - nor can I make it any bigger. MR. SIEVERDING: Well could it be pushed closer to the house - I mean, away from the rear property line which seems to be where the greatest deficiency is. MS. FULLER: You mean move it out farther? MR. SIEVERDING: Yes, like toward the deck in the back. CHAIRMAN TOMLAN: You could just sort of dive off the deck into the pool. MS. FULLER: I don't have a deck on the back of my house. . . CHAIRMAN TOMLAN: Oh well, porch. Had you thought about that as an option? MS. FULLER: For moving it you mean? CHAIRMAN TOMLAN: That is, moving it a little closer to the house? The reason is, you are creating a rear yard deficiency and we are just wondering if you couldn't lessen it some. MS. FULLER: Move it up? Yes, I could move it up. MS. MACLEOD: It is right against the garage, according to your sketch. MS. FULLER: Yes (unintelligible) so I 'm getting away from the one property line, so I'm moving it a little bit closer to the garage and with that, also, I could use the garage to hang - like the hose. . . CHAIRMAN TOMLAN: Further questions from members of the Board? MR. WEAVER: Do you happen to know the length of that pool? MS. FULLER: 16 X 24. PAGE 13 BZA MINUTES - 10/3/88 MR. PECK: So the 24 ' dimension that you have on the picture then is in the wrong spot? It should be on the side instead of the back? MS. FULLER: It is 24 ' long and 16 width. MR. PECK: Yes, but you've got 24 ' . . . CHAIRMAN TOMLAN: But that's not the way you drew it. . . MS. FULLER: Oh, I drew it wrong. I 'm looking at the pool - I'm looking at it this way - it is 24 ' long. . . I 'm sorry - the 24 should be here. MR. PECK: The side of the pool, nevertheless, will not be 15' from the side property line when you are finished, is that right? MS. FULLER: Right - from the property line, yes. MR. PECK: It turns out to be even with the house - it will be nine feet, is that correct? CHAIRMAN TOMLAN: One would assume - if the addition is correct. There is an added difficulty - my eye tells me that if the dimension 59 ' - the length of the proposed, I would assume, fence, is in fact correct, then the length of the pool can't be 24 ' because 24 is less than half of 59. If we ignore the drawing, I think we might do okay. MR. SIEVERDING: The thing is, you are really squeezing on both ends, right? You will be 15' away from the basement wall, according to this Chapter 35 - second opportunity we've had to look at this in five years - and you need to be 15' away from the rear yard. Whether you push it closer toward the house, you are certainly creating a difficulty there, if you leave it where it is then you will actually be dealing with the lesser of two evils in PAGE 14 BZA MINUTES - 10/3/88 terms of keeping it away from the house and any potential flooding problem. . . MS. FULLER: Excuse me, the backyard - right behind me - if it should ever flood - it goes downhill and there is no basement there and water doesn't climb up. . . MR. SIEVERDING: That's not what I 'm saying - what I 'm saying is it may be better to get it further away from the house and closer to the property line. MR. OAKLEY: It would seem to me that it's better to flood your own basement than to flood someone else's. MR. WEAVER: Well, if it were someone else's basement, but if you are flooding their back lot line, that's not very exciting. There is a long distance between it and structures, as I saw it. MR. OAKLEY: It didn't seem to be close to any structure. CHAIRMAN TOMLAN: Let me paint another scenario. What happens if the owner abutting wants to put another building, or do something else in the back yard? I 'm kind of in agreement - to my mind we move it closer to the building - or as close as it can be outside that 15 ' and let it go at that and we could provision it, I would assume, on that basis. Take the 15' from the building as the datum and forget the drawing. MR. PECK: I don't think it is going to fit under any circumstances. CHAIRMAN TOMLAN: You don't think it's going to fit, why wouldn't it fit? MR. PECK: Not after looking at the back yard - it doesn't look to me like you would be able to squash it in there. CHAIRMAN TOMLAN: I thought it would be tight. . . PAGE 15 BZA MINUTES - 10/3/88 MR. SIEVERDING: So what you are saying is, that you would just come 15' off the basement (unintelligible) relative to the rear yard property line but you would only have a little bit more than what is shown on this sketch here. CHAIRMAN TOMLAN: Right. Does that make sense? MS. FULLER: Yes. CHAIRMAN TOMLAN: As much as these things do. I understand. MR. WEAVER: I 'm embarrassed that it makes sense to her. Let's look at the symbol F on the piece of paper - top line being "A brief description of the facts concerning the appeal follows: " Where will F be when you have this re-engineered? CHAIRMAN TOMLAN: 15' from the back of the building. MR. WEAVER: Regardless of where the north end of the pool. . .. CHAIRMAN TOMLAN: We are essentially caught between two things - we've got something that says we can't create - or we shouldn't create a rear yard deficiency, by virtue of the setback there and we are caught by another provision which says 15 ' from the building one way or the other. I am saying that in essence - I'm taking the building and keeping it on the property as much as possible. MR. WEAVER: Assuming that we are all suddenly interested in (unintelligible) flooding problem, does the structure labelled "A" - is that included in your measurement of a structure? It ordinarily is but in this case. . . MR. SIEVERDING: The Ordinance says basement wall. . . MR. WEAVER: Basement wall. . . is the phrase you are going to use? CHAIRMAN TOMLAN: That's right - the "A" is the porch. MR. WEAVER: Now I've caught up with the appellant. Thank you. CHAIRMAN TOMLAN: Good. She's a quick appellant. PAGE 16 BZA MINUTES - 10/3/88 MR. OAKLEY: She's just cooperative. CHAIRMAN TOMLAN: Further questions? MR. OAKLEY: Just so I know where the property line is. The building that is the garage in the back, do your neighbors own part of that? MS. FULLER: The ones right smack behind me? MR. OAKLEY: The ones to the side of you. MS. FULLER: Right next to me. (unintelligible here) MS. FULLER: Oh yes, I own the garage and a little bit past the garage. This one here is on my survey. MR. OAKLEY: Well the garage looks of recent enough vintage that I don't think we can trust the survey to be up to date on that. After all, the garage doesn't have a roof like that. CHAIRMAN TOMLAN: That's true. MR. OAKLEY: And the garage is not square. CHAIRMAN TOMLAN: I understand. Picky, picky. . . I tell you, forget these drawings. MR. OAKLEY: And the garage is two buildings (unintelligible) 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 to this variance? [no one] Good. We can move right along. Further discussion? Do we have a sense of where we are going? PAGE 17 BZA MINUTES - 10/3/88 DECISION ON APPEAL NUMBER 1872 FOR 108 FRANKLIN STREET The Board of Zoning Appeals considered the request of Michelle Fuller for a variance from the minimum setback requirements of the Swimming Pool Ordinance, to permit the installation of an above-ground swimming pool in the rear yard at 108 Franklin Street. The decision of the Board was as follows: MR. OAKLEY: I move that the Board grant the variance from the minimum setback requirements of Section 35.4 of the Swimming Pool Ordinance conditioned upon the proposed swimming pool being located as close as possible to fifteen (151 ) feet from the foundation of the house; therefore as far as possible from the north, or rear, property line and also positioned to the side of the garage in order to remove it as far as possible from the west property line. MR. SIEVERDING: I second the motion. PROPOSED FINDINGS OF FACT: 1. There is no possible way to alter the size of this hand-me-down swimming pool. 2 . There is no other place in the rear yard where the swimming pool could possibly be located. VOTE: 6 YES; 0 NO GRANTED WITH/CONDITION PAGE 18 BZA MINUTES - 10/3/88 ACTING SECRETARY DIETERICH: The last appeal is Appeal Number 1873 for 203-205 Eastwood Avenue: Appeal of Carey Property Management/Neal Howard, agent, for Peter Dumont and Carol Stevenson, owners, for a use variance under Section 30.25, Column 2 of the Zoning Ordinance, to permit the rental of a two-family dwelling at 203-205 Eastwood Avenue as two dwelling units. The property has "grandfather rights" as a dwelling unit with a small rental apartment, but these rights are predicated on the requirements that the property be owner-occupied. The property is located in an R-1a (Residential, single-family) Use District, in which only single-family dwellings or owner-occupied single-family dwellings with Accessory Apartments are permitted under current regulations; therefore the appellants must obtain a use variance before both units can be rented. CHAIRMAN TOMLAN: Good evening. Again, if you would begin by identifying yourself. MR. HOWARD: I 'm Neal Howard, owner of Carey Management. My address is 427 North Cayuga Street. The owners, Peter Dumont and Carol Ann Stevenson, are on sabbatic for one year in New Mexico. They are asking for a variance to rent the house to a family for the length of that time. They are interested in finding a responsible family to take care of the property. The property is currently zoned for owner-occupied use. CHAIRMAN TOMLAN: Questions? MR. WEAVER: Can you tell me about the present occupancy of the building? PAGE 19 BZA MINUTES - 10/3/88 MR. HOWARD: Right now we have a graduate student in the basement, that has lived there for at least three years. In the upstairs - which is a - the owner's lived - is currently vacant. MS. MACLEOD: One graduate student in the apartment? MR. HOWARD: Yes. It is a studio apartment in the basement. MS. MACLEOD: This does not cohere with what the neighbors report. MR. OAKLEY: Have there been people living in the owner part of the house recently? MR. HOWARD: As far as I know, Mr. Dumont, who hired us to take care of the property, he lived there right up until he just left for New Mexico. Downstairs there is a graduate student - one graduate student downstairs. MR. SIEVERDING: How long have you been managing the property? MR. HOWARD: We just took it over since Mr. Dumont left - it has been at least sixty days. He has not officially hired us, we are trying to get the variance first so that we can show the apartment to rent so that he can get income from it to pay for his place out in New Mexico. MR. SIEVERDING: For the sixty days. . . MR. HOWARD: He left abruptly at the end of August. . . MR. OAKLEY: So to the best of your knowledge, this has not been rented since he left? MR. HOWARD: Since August, no. The person who lives downstairs has been there - from what I heard from Mr. Dumont - for three years. MR. OAKLEY: Has he had house sitters? MR. HOWARD: He is a local person. PAGE 20 BZA MINUTES - 10/3/88 CHAIRMAN TOMLAN: That's true but there could be, perhaps, a key given to some other graduate students that are making use of the living unit as it is now? MR. HOWARD: Upstairs? CHAIRMAN TOMLAN: Yes. MR. HOWARD: No, it is totally vacant. MR. OAKLEY: Have you received any complaints about the property? MR. HOWARD: We received one complaint about - there was garbage out in front - but that was Mr. Dumont's garbage that we took care of. He left quite in a hurry to get out to New Mexico, but we did take care of that. CHAIRMAN TOMLAN: Well, let's go around about it the other way because I think the point of the use variance is to think about economic hardship, please. Could you perhaps elaborate on what hardship the owner is having in maintaining the property under its current use? MR. HOWARD: Since he is on sabbatical in New Mexico, he has two places to pay for now - the one in New Mexico, plus the one that he has here. MR. OAKLEY: I would ask then, what makes this hardship - because also, this is not unusual. . . MR. HOWARD: Well he can't make both payments on both places. MR. OAKLEY: Yes but what makes this property different from other properties that have similar circumstances - other accessory apartments. . . MR. HOWARD: I don't understand the question. MR. OAKLEY: There are other buildings in the area, the City has created Ordinances that allow people to have an owner-occupied PAGE 21 BZA MINUTES - 10/3/88 structure with an additional apartment. This is not strictly an accessory apartment according to the current Ordinance but it is similar to that. So there are theoretically quite a number of other apartments that - other situations that look like this one - where the owners might go on sabbatical for some period of time - what makes this particular property unusual so that it deserves relief from the law that. . . . MR. HOWARD: Well since he is an absentee landlord/owner his hardship would be, again, he cannot pay rent out there and pay mortgage here, plus he would like to have us take care of the property so that the yard is mowed and the garbage is picked up, the sidewalks are shoveled and so on and so on. . . MR. SIEVERDING: Had he considered selling the property prior to this sabbatical? MR. HOWARD: No, not that I am aware of, because he is coming back in a year. He needs a place to come back to. MS. MACLEOD: According to the neighbors there is some uncertainty with that. MR. HOWARD: I only know what I have been told and this is what his last plans were when I talked with him from New Mexico last week. CHAIRMAN TOMLAN: Do you know enough about his status in New Mexico. . . MR. HOWARD: All I know is that he is on sabbatic in New Mexico. CHAIRMAN TOMLAN: You have no other information about whether he is employed with researching. . . MR. HOWARD: He is with a university in New Mexico. CHAIRMAN TOMLAN: So he is teaching assumedly? MR. HOWARD: I believe so. PAGE 22 BZA MINUTES - 10/3/88 CHAIRMAN TOMLAN: You don't know that? MR. HOWARD: I 'm not sure. I really don't know. CHAIRMAN TOMLAN: I see. Well my point is that it is even reasonable to assume - given the fact that he would be on sabbatical - but yet he would be having an income commiserate to what he would normally. . . MR. HOWARD: I don't have any idea what his income is or even if he is getting an income, if he is on sabbatic - I don't know if he is doing research or whatever. . . CHAIRMAN TOMLAN: Okay, fine. Further questions? Charles? MR. WEAVER: No. CHAIRMAN TOMLAN: You have no other information about the finances of the situation, aside from what you assume you are going to rent it for? MR. HOWARD: Correct. I have no other information as far as - I know what we want to rent it for so we can make his mortgage payments. CHAIRMAN TOMLAN: I see. And that. . . MR. HOWARD: To pay his taxes, insurance and everything else - and our fee. CHAIRMAN TOMLAN: What does that come to, total? MR. HOWARD: He would like to get $800.00 per month. CHAIRMAN TOMLAN: For a family? MR. HOWARD: For a family, yes. Well we did have some interested graduate students but Mr. Dumont said "no, it has to be a family. " CHAIRMAN TOMLAN: Further questions? MR. WEAVER: I guess the question before us - this is not an auxiliary apartment? PAGE 23 BZA MINUTES - 10/3/88 CHAIRMAN TOMLAN: Well a use variance is a use variance. The question is whether in fact this is a use variance for a year or a use variance indefinitely, correct? We can discuss that afterward. MR. OAKLEY: I have a lot of discussions about this. MR. WEAVER: Well this - the apartment doesn't have the status of having been approved. It is grandfathered, rather than having been approved. CHAIRMAN TOMLAN: That's right. MR. SIEVERDING: Grandfathered in that it existed prior to some zoning change. . . MR. WEAVER: What I 'm understanding, I think here, is that. . . MR. OAKLEY: (UNINTELLIGIBLE) MS. MACLEOD: If the house is owner-occupied. . . CHAIRMAN TOMLAN: One at a time, first off. . . Charles, could we not put that in abeyance until such time as we hear from the neighbors. . . MR. WEAVER: As long as you wish. CHAIRMAN TOMLAN: I think it would be to our advantage. Further questions of the appellant? [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? If you would come forward, one at a time. If you would begin by identifying yourself and where you live? MR. LOVE: Yes, my name is John Love, I live at 1206 East State Street. It puts my back yard adjacent to theirs. I should point out for those who are not aware of this, that we share a "not a City Street" . It's used by all the people in the block practically, with the exception of the house perhaps that faces PAGE 24 BZA MINUTES - 10/3/88 Cornell Street. For the most part all the people on the block share our "not a City Street" . So that puts me, I think, as an "interested party", certainly I live within the distance. I bought the house two years ago from my Real Estate Agent - through my Real Estate Agent who said this is zoned R-1. I believe I bought it under those conditions and that under principle - purely principle, R-1 should stand and that this variance raises questions about how the Zoning Board treats its Rules and Regulations. So I would oppose it upon principle. I would also raise questions about the details given in the appeal. Number one, under the discussion that we've just had, it seems to be running around as an assumption that he is on sabbatical leave. But we haven't talked about what sabbatical leave is. I know they are away - I know she has a job in New Mexico and that he, in time, followed her to New Mexico. Other than that it is difficult to say what the details are. My impression is that he is not employed with the University there and that raises questions about their committment to come back. It also raises questions about the hardship issue that you raised. Also it is rather vague about what is meant by "that length of time" . If the variance is granted for a year, we don't know what the starting time is, we don't know what the ending time is. If this is vague and the appeal is granted then it could stretch out for an indefinite period. So as a home owner, one who bought a house under the understanding that R-1 stands, and of course that is capitalized into the value of the house, as you, I 'm sure, know. I would be interested in the specific details. I would say that, first of all, that they are good neighbors and the resident who lives in the basement shares the driveway - they don't necessarily PAGE 25 BZA MINUTES - 10/3/88 share it with vehicles. He, the tenant does and I have no complaints about the past relationship with that situation - it is the future that I am interested in, that is all I have to say. CHAIRMAN TOMLAN: Questions from members of the Board? [none] Thank you. MR. LOVE: You are welcome. CHAIRMAN TOMLAN; Anyone else who would like to speak in opposition? Please come forward. MRS. FIRESIDE: My name is Bryna Fireside, I live at 202 Eastwood Avenue. I also am the person who organized the petition that you all received raising some serious concerns. I am, first of all, concerned that the Carey Management Company is unreliable in what they say they do. They did not clean up the mess - the garbage - my husband cleaned up the mess, the garbage, and I believe it was - weeks went by - I had found Carol Anne and Pete in New Mexico and they told me that they had found Carey Management and asked them to pick up the garbage - twice - and it was never picked up. I am concerned that - I believe and have seen over the past couple of weeks - at least one person going in the front. There is a car that is parked, daily, in the driveway. Last week there was a garbage can left out front - so it is not quite clear to me that there is not someone else besides the tenant in the back, living in the house now. At times, we've just seen one - two - three people coming in and out, so it is hard to say. On the other hand I haven't seen lights there very often, so I don't know what's going on but I do think something is going on in there. As a former home owner on Valentine Place, I am deeply concerned that the neighborhood that I moved to is not going to become a student PAGE 26 BZA MINUTES - 10/3/88 block. The house that we bought was owned by Jim Jacobs, who was an absentee landlord and the neighbors up and down the block had problems - enormous problems with students - sometimes numbering six that were living in the house before we bought it. I just ask that you really deny this variance. It is just not proper. CHAIRMAN TOMLAN: Questions from members of the Board? MR. OAKLEY: I have one which is fairly theoretical. Do you feel that an owner-occupied landlord should be able to rent it if they go away for awhile? MRS. FIRESIDE: I think that the owner has to make a decision. If they, in fact, are going on sabbatic, and I think there is a major question about this, if they want to rent their house to a family, that's fine, but then they can't rent that apartment. MR. OAKLEY: So you feel in general that the houses that are owner-occupied - even in the case of an accessory apartment - the Ordinance currently states that - it doesn't state whether they can rent it or not, but it states that the owner may be absent for eighteen months in five years and my reading. . . MRS. FIRESIDE: Eighteen months? MR. OAKLEY: Eighteen months in five years, which I think gives them one year and a set of vacations. I sort of think - in reading that, my assumption is that Common Council assumed - a string of assumptions here to comment on - that the owners would rent out the primary dwelling for that twelve month period as well as renting out the accessory apartment. Does that make sense to you or do you think that that's an excessively lax reading of the Accessory Apartment Ordinance, which is an Ordinance which doesn't exactly apply here, anyway. PAGE 27 BZA MINUTES - 10/3/88 MRS. FIRESIDE: You've got me confused. MR. OAKLEY: Okay, let's just talk about the Accessory Apartment Ordinance, because it is a nice theoretical position. Do you think the Common Council meant that they could be absent or that they could not rent out both units of an owner-occupied accessory apartment. MRS. FIRESIDE: I do not know what was in their mind so I can't comment on that. CHAIRMAN TOMLAN: That was a good answer. Any further questions of a theoretical or practical means? [none] Thank you very much. Is there anyone else who would like to speak in opposition? Come forward please. Again, if you would begin by identifying yourself and where you live. MR. MACNEIL: Thank you. My name is Richard J. MacNeil, I live at 207 Eastwood Avenue with my family. That would be the property immediately next - to the east. It seems to me that we have heard no evidence that the gentleman and the lady concerned are on sabbatic leave. My impression, from what little I knew about their work in Ithaca, was that it wasn't the kind of work that would send people on sabbatic leave. And, according to the evidence that I have, they did not go on sabbatic. Carol Ann, for example, told us that this was a permanent move. She told us a story about as soon as she got there she was going to change her license plates from New York plates because it was bad to be from New York and she was identifying herself as a New Mexican. And this is not the kind of information that would lead me to think that she is coming back. I am not convinced, as my neighbors are not, that Carey Management really is available for problems, including the trash. The PAGE 28 BZA MINUTES - 10/3/88 previous speaker mentioned that there was trash that had to be cleaned up. My guess is that that maybe amounted to something like a quarter of a ton - it wasn't just household garbage - it was huge amounts of material that was left over from cleaning out a house when somebody moves. I 'm also not very comfortable with the information we received on the notice of the appeal, where Mr. Howard suggested that he wanted to rent the house to a family. My understanding is that that doesn't require any variance and in fact, I think that was misleading - could be misleading to the people who received it because what he is requesting - as I understand it - is to rent the house to a family and to another person. That is not the information we received on the material which came to us in the mail. You will hear from other people so I should be quiet now. CHAIRMAN TOMLAN: Are there any questions from members of the Board? I had one question. You said they weren't in a business that would allow them to be on sabbatic? MR. MACNEIL: That would normally - my understanding is that they don't do the kind of business that would normally send people away on sabbatic. CHAIRMAN TOMLAN: I see. MR. MACNEIL: For example, my impression is that she has been a speech therapist with local health care organizations and he has been working - as I understand it - in real estate. CHAIRMAN TOMLAN: I see. Okay. That's what I was after - if we could just fine tune that a bit. PAGE 29 BZA MINUTES - 10/3/88 MR. WEAVER: I have a question. Do you have a reason to distinguish an absence for a sabbatic versus any other absence, one from an other? MR. MACNEIL: No, not particularly. I was addressing that because that was what the question asked. MR. WEAVER: Okay. Thank you. CHAIRMAN TOMLAN: Any other questions from the Board? MR. MACNEIL: May I make another statement? CHAIRMAN TOMLAN: Sure. MR. MACNEIL: We had occasion to go on sabbatic. CHAIRMAN TOMLAN: The real sabbatic? MR. MACNEIL: Yes. I teach at Cornell. When we were away, two of our children stayed in the house and we had one other person who joined them. We do feel that it may be necessary to take a financial loss because we think that the rules should be followed. CHAIRMAN TOMLAN: Thank you. Is there anyone else who would like to speak in opposition? Name. . . MS. MACNEIL: I am Mary Anne MacNeil and I live at 207 Eastwood Avenue. When we first knew Carol Ann Brown, she was married - it was my understanding that she got the house through a divorce and I don't know when this other gentleman bought into the house but I met Carol Ann downtown - she told me she was applying for a job in New Mexico - she told me that she was flying out to New Mexico to interview - I later met her at the Post Office, she was excited - she had the job - she was moving to New Mexico - there was never any intention in her voice or anything that she was coming back. Now suddenly when this zoning became a question we heard about sabbatic and I just feel that it is a residential - very precious PAGE 30 BZA MINUTES - 10/3/88 residential neighborhood and there are very few left on east hill and I 'd hate to see it change. CHAIRMAN TOMLAN: Questions from members of the Board? [none] Thank you. Is there anyone else who would like to speak? One more person back there. MR. BORONKAY: My name is Joseph Boronkay, I live right in back of Carol Ann and Mr. Dumont and I was just going to verify what Mrs. MacNeil just said because Carol Ann, I am sure, is the owner of the house and not Mr. Dumont, as stipulated prior because I have checked the records today at the County Clerk's office and her name has just been changed to Stevenson, as far as the taxes were concerned and it was Carol Ann Stevenson and not Mr. Dumont, that was the owner, so I just wanted to verify that. CHAIRMAN TOMLAN: Questions from members of the Board? [none] Thank you. Is there anyone else who would like to speak in opposition? MS. HAINES: I think I 'm the last one. I 'm Martha Haines and I live at 1204 East State Street which puts me on the other side of John Love and Joe and therefore across the "not a City Street" . CHAIRMAN TOMLAN: We've got it, thanks. MS. HAINES: And I would just like to say that I bought my house four years ago, in the neighborhood, because of the way the neighborhood was and I think that is what our real concern is and I don't think we have been presented really what is going on and that bothers us. I haven't had any personal problems or anything like that with Carol Ann and Pete and if I understood the situation as it is presented here - if that were the case then maybe I would ask a few questions but I wouldn't feel that - the whole truth is not here and that's the way I think we feel and we are very concerned. PAGE 31 BZA MINUTES - 10/3/88 CHAIRMAN TOMLAN: Questions from members of the Board? [none] Thank you. Is there anyone else who would like to speak in opposition? [no one] That being the case, it is ours. PAGE 32 BZA MINUTES - 10/3/88 DISCUSSION ON APPEAL NUMBER 1873 FOR 203-205 EASTWOOD AVENUE CHAIRMAN TOMLAN: Now do we want to discuss the length of this use variance or do you think we can move to a motion? MR. OAKLEY: I don't want to move to a motion quite yet. I 'll move at the end of what I have to say. I want to say, first of all, that it is not clear to me, you know, in looking through the Ordinance, whether or not they have the right to rent this upper building out for a period of time. It is not clear to me whether a variance is necessary but allowing that a variance is necessary, I move that Appeal Number 1873 be denied. Findings of Fact: 1) The appellant has demonstrated some financial needs - he has not demonstrated any unusual hardship which makes this property any different from a number of similar properties in the area. And I so move. CHAIRMAN TOMLAN: Do I have a second? MR. PECK: I second it. CHAIRMAN TOMLAN: Further discussion? MS. MACLEOD: I'd like to ask a question. CHAIRMAN TOMLAN: You may, certainly, now is the time. MS. MACLEOD: It says in our statement "reason for appeal", that the owners, and they are both mentioned there, are on sabbatic in New Mexico for one year. Now either those statements are true or they are not true. I mean, who drew up this appeal? MR. OAKLEY: I think they are largely irrelevent to this discussion. I mean it is irrelevent to my motion at any rate. Do you agree? CHAIRMAN TOMLAN: I agree completely. But you might explain that for Bea's benefit. PAGE 33 BZA MINUTES - 10/3/88 MR. OAKLEY: It is irrelevent because my motion doesn't really - well, for one, if I were making a positive motion, then it might be relevent - it would suggest that there was some special circumstances which made this a continuing - made it possible for them to continue residence in the neighborhood by making it possible for them to keep their house and return to it in a years time. Although I don't think that that's a particular special circumstance - a great many people go on sabbatic leave - probably the bulk of the people who get sabbaticals within R-1 districts - and. . . MS. MACCLEOD: I'm just questioning the use of sabbatic. Is it or not. MR. OAKLEY: We don't, in general, hold people up on perjury charges before the Board. We allow people to. . . CHAIRMAN TOMLAN: Perjure themselves regularly. . . MR. OAKLEY: I 'm not exactly clear that sabbatic is legally defined as that which a University grants to its professors. . . MR. SIEVERDING: I think you. . . MR. OAKLEY: At some point in their career - I agree that the appeal seems - if we listen to all the testimony - the appeal seems a little bit. . . to use words which favor its case to the greatest possible extent. But we seem to have penetrated that to some extent and I think we should settle on that. MR. SIEVERDING: The primary issue being - this whole issue of sabbatic really doesn't have anything to do with it - it all revolves around hardship and what one needs to demonstrate to a Zoning Board in order to get a variance for hardship. And the fact of the matter is that Carey Management hasn't presented any PAGE 34 BZA MINUTES - 10/3/88 information at all - any kind of economical information that would support a case for hardship. And whether a guy lives in New Mexico or California or down the street really doesn't have anything to do with it. MS. MACLEOD: Right. MR. SIEVERDING: Are we voting? MR. WEAVER: No we are not. First of all on the question - could any of you explain to me why we have a request for a variance? MR. OAKLEY: That's what I said in the beginning. MR. WEAVER: Do we know? Yes, Peter. ACTING SECRETARY DIETERICH: The request - I think it was two or three years ago the zoning changed - because at one time in an R-1 zone a two-family dwelling was permitted and it said something to the effect that "one-family dwellings containing a certain number of individuals. . . " it talks about if it was owner-occupied or it was not owner-occupied, certain things could happen but all that went by the way-side a few years ago and at that time whatever the circumstances were, which - this property was owner-occupied with an apartment - became grandfathered and therefore the owner-occupancy was a requirement of the R-1 zone - to continue that. Since then the Common Council came up with the Accessory Apartment in lieu of this two-family dwelling situation that was in the Ordinance a few years ago and I guess to help certain circumstances that were described in the Ordinance. Does that clear up anything? MR. WEAVER: Yes, because my discussion isn't intended to be a debate with you but if we have a grandfathered condition in a neighborhood - they can do anything they want to with the Zoning PAGE 35 BZA MINUTES - 10/3/88 Ordinance - run it up the flag pole if they wish - is there something about that that denies the continued use of that structure as was at the time of the change? Is there anything at all? MR. OAKLEY: No, but part of my problem, and I left a message for Peter, I don't know if he managed to find it, is that I am not at all clear what the original Ordinance said. I mean, did the original Ordinance seem to call for owner-occupancy? Did it have periods of time allowed in which the owner need not be. . . was it roughly parallel to the Accessory Apartment or was it more restrictive, was it less restrictive? You know, I. . . . CHAIRMAN TOMLAN: All nice rhetorical questions but I'm not sure they have any bearing on the case in hand. MR. OAKLEY: In terms of the use variance it has no bearing. CHAIRMAN TOMLAN: That's the point. Charles is essentially asking a rhetorical question, the answer to which is, if that is the way in which it was, that is the way in which it can continue. MR. WEAVER: I 'm going to come to the conclusion that there is no reason at all for a variance. MR. OAKLEY: My feeling exactly. MR. WEAVER: If the present owner rents it to Smith, Jones and Brown, and they have some kind of a family relationship that will meet the modern definition of family, they haven't changed the use a bit. I don't think that the basement apartment that existed before Accessory Apartment Ordinance came into fashion, is an accessory apartment because that Ordinance was created - quite a bit from that. It is just an apartment in the basement and not an PAGE 36 BZA MINUTES - 10/3/88 accessory apartment and the regulations that apply to the continuation - no permit is issued to that apartment. . . MR. OAKLEY: No, no. The reason I was discussing Accessory Apartments - I agree with you, except on one point and this is where, I think, had the appeal been an appeal for a ruling, the motion would have been far harder to make, with our current ignorance on the law. As I understand what I 've heard about the previous law - it was for an owner-occupancy in the main part of the dwelling and an apartment, not called an accessory apartment, an apartment of right in the other part of the building, but there were obviously conditions that made that something like the Accessory Apartment Ordinance. ACTING SECRETARY DIETERICH: A couple of years ago a new set of Ordinances were put in place. . . more restrictive. . . MR. OAKLEY: Yes but what is grandfathered is a collection of rights, not to simply the apartment but to the whole dwelling - the whole double dwelling, as I understand it. I mean, we don't have to make that decision at this time because that is not the question which has been put to us. ACTING SECRETARY DIETERICH: Grandfather is owner-occupancy. The property was owner-occupied at the time. MR. OAKLEY: Right. Okay. MR. WEAVER: What's that got to do with it? Everybody in Ithaca talks about owner-occupation but the only place that it is in the Ordinance - to the best of my knowledge - is in the Accessory Apartment section. If you know of some place else that it exists please help me. PAGE 37 BZA MINUTES - 10/3/88 MR. SIEVERDING: But if we are referring back prior to this previous R-1 designation - that had attached to it - you could have the secondary apartment in the unit provided that the house was owner-occupied. MR. WEAVER: No sir. MR. OAKLEY: You are saying that that was not the rule? MR. WEAVER: No, there wasn't any such rule until the Ordinance was passed that created the Accessory Apartment Ordinance. And before that. . . MR. SIEVERDING: Then where - what's the basis then for the statement in the description of this appeal that says that this is predicated upon the requirement that the property be owner-occupied if there is no provision in the Zoning Ordinance for it. MR. WEAVER: If you want to be technical about it, we have an appeal for a use of the main part of the house as a dwelling and you are asking - because the word "use" is there that there has to be a hardship - I 'd say that the property has that right - it doesn't need to gain it through a variance. MR. OAKLEY: Charlie I 'm willing to grant that they might have the right to do that - I 'm not willing to grant that they have demonstrated hardship for a use variance - I mean, in denying them the use variance - if you are right that they have a right to do it, they would still have a right to do it, whether we grant it a use variance is irrelevent. Now I think what Peter is saying is that - if I understand rightly - is that grandfather rights are minimal rights, they go only so far as the property is non-conforming at the time that the law changes. At the time that the law changed there was an owner in occupancy and there was an PAGE 38 BZA MINUTES - 10/3/88 apartment there so that the entire unit was described as an owner-occupied unit with a rental apartment. And that is what is grandfathered for them. In that case - then it seems to me that if we take grandfather rights that way, then a very restrictive interpretation is quite possible - which we can discuss if Mr. Howard cares to bring in an appeal for an interpretation. And to make that argument that - and to bring up questions and evidence concerning the use of the apartment at the time of the Ordinance change - but I think - far be it for us to make such an elaborate case for somebody. MR. WEAVER: You do know that it allowed duplexes? Or don't you? MR. OAKLEY: But I'm saying, I 'm giving you that. I don't know it - I 'm taking your word for it. MR. WEAVER: That's a risk. MR. OAKLEY: I 'm also taking Peter's understanding of what you grandfathered - but he is right in the sense that you might easily have - that any of these properties might have a large number of rights attached to them and that if they are not being used at the time that the Ordinance changes - that those rights disappear. That seems to be normal in grandfather rights. And so if the right to rent it out as a duplex existed at the time that the Ordinance changed, the fact that they were renting it out as a duplex means that they did not carry over that right. . . MR. WEAVER: You mean that rental is key to allowing a use in the Zoning Ordinance? MR. OAKLEY: It would appear - because of the restrictions that we now have on owner-occupancy and non-owner-occupancy. . . PAGE 39 BZA MINUTES - 10/3/88 MR. WEAVER; Can you give me an example where owner-occupancy is required? MR. OAKLEY: The Accessory Apartment. . . . MR. WEAVER: Well this is not an accessory apartment. The department has proof of that - it has no permit for an accessory apartment at that location. There is no three year term. MR. OAKLEY: I think it is an anomalous thing, I might like to see it argued fully but I think it is a very - to me it seems a very anomalous position and a rather difficult one to sort out. And one that is not clear enough to me to make a case for the appellant when the appellant hasn't made a case for himself. MR. WEAVER: Taking a simpler case, let's say we'll have for the highest reasons - and we have a sabbatic - that will make it a little bit higher and one of those persons asks that he can move out and rents the house - it wasn't rented before - is rental a bad thing according to the Zoning Ordinance? MR. OAKLEY: In an R-1a area - clearly renting two units in a building is forbidden and renting one unit in a building is allowed under certain circumstances with a special permit. MR. WEAVER: I absolutely disagree with you - it is not. . . . MR. SIEVERDING: Anybody can rent a single family house in an R-1 zone. MR. OAKLEY: Yes, anybody can rent a single family house - whether anybody can rent both sides of a house with two dwelling units in it, in an R-1 zone, seems to me to be much more problematic. It becomes a duplex. Clearly under certain circumstances it is illegal. PAGE 40 BZA MINUTES - 10/3/88 MR. SIEVERDING: But I think it gets back to what that original Zoning Ordinance read at the time that. . . . (unintelligible) MR. OAKLEY: I think that the Building Department is right, there is something to the nature of the way in which grandfather rights are established. ACTING SECRETARY DIETERICH: From what I understand conditions can change a thousand times along the way. This house was built back in 1946, I looked into that. And in 1946 we had a set of rules - the rules can change all along the way and you can gain and lose grandfather rights by using and not using certain things over a twelve month time period depending on what zone you are in. At the time when the Ordinance becomes more restrictive, at that point - from what I understand - that's the cutoff point - whatever you establish - whatever is established at that point - if that happens to be an apartment with an owner-occupancy - it is not an accessory apartment, it doesn't require permits - it's an apartment with owner-occupancy and that apartment with owner-occupancy is grandfathered under those circumstances for as long as it is used that way. MR. WEAVER: Are you trying to tell me that that's an accessory apartment in the basement? ACTING SECRETARY DIETERICH: No. It's grandfathered. It is an owner-occupied dwelling unit with an apartment - not an accessory apartment, it doesn't require a permit - it is grandfathered with those circumstances. MR. WEAVER: If it's not an accessory apartment, there is nothing in the Zoning Ordinance that says anything about owner-occupancy. How PAGE 41 BZA MINUTES - 10/3/88 did we get this? How do we get the owner-occupancy requirement when we don't have an accessory apartment? Where do we find that? ACTING SECRETARY DIETERICH: It would be a duplex otherwise. MR. WEAVER: They have a right to operate a duplex. That's what they had when the Zoning Ordinance changed. MR. OAKLEY: No. What they had when the Zoning Ordinance changed - that was an owner-occupied house with an apartment and what you carry over is not - I mean, as Peter said, in 1946 the house had a set of rights, most of which it does not have now. MR. WEAVER: Well if you would like to put owner-occupancy into this so that it will meet your objective, far be it for me to do anything other than yell that it is wrong. MR. OAKLEY: Wait just a second Charlie. Look at my motion - all my motion said was that - I didn't say that the use variance was unnecessary, since that seemed to me to be not absolutely clear, I said that he had shown no - hadn't demonstrated a hardship and that seems to me to be - on those grounds we can deny the use variance and Mr. Howard can come back to us for an interpretation, he can go to the Courts for an interpretation - I think he has to come to us for an interpretation before he can go to the Courts - but he has not asked us to make an interpretation and the Building Department has made one ruling and Charlie, you clearly disagree with the Building Department - I 'm not sure where I stand on this. CHAIRMAN TOMLAN: I think Charles is raising a bigger issue and I think it bears looking at - certainly the Ordinance is not clear in the specifics - I think we would all agree - and lacking any information that would support your interpretation - that is, as it is written - he raises a spector which is somewhat discomforting PAGE 42 BZA MINUTES - 10/3/88 and that is, that Mr. Howard and the owner, whomever this happens to be, may be able to - without doing anything - continue in the manner in which he or she or they may have been doing. MR. OAKLEY: I agree with Charlie, that is a possibility. CHAIRMAN TOMLAN; I want to spin it out, though, a little further to see whether in fact, it doesn't come to a logical conclusion and in essence comes back to a variance. If we assume that it was a single family house and it is an R-1 sort of situation and the Ordinance does specify that one year and X number of months out of every five years - don't we eventually come to a point, Charles, that after the period of rental has run out - so to speak - then what, do we not come back to a situation where, in essence, we are asking for a variance in any event? MR. WEAVER: Well two things. If you are to accept the rather shallow idea that this is an accessory apartment and therefore it has to be owner-occupied, even if it were, I can't see a use variance being granted because none is required. CHAIRMAN TOMLAN: Well, I 'm saying though. . . MR. WEAVER: You are saying that housing in Ithaca should remain vacant because it has an accessory apartment in it. That's ridiculous. CHAIRMAN TOMLAN: No, no, I said. . . MR. OAKLEY: Charles I 've said exactly what you are saying. I don't think I 've said anything different from what you are saying in this argument. I 've used the accessory apartment thing as - in some sense - the weakest possible argument to make the argument that you are making and it seems to me that therefore you deny the use variance. PAGE 43 BZA MINUTES - 10/3/88 CHAIRMAN TOMLAN: No. You have both missed my point completely, as I understand it. What I am saying is that if the property were a single - forget the accessory use - if it is a single-family house and it has essentially been vacant for X number of months, okay? Where it has essentially been rented - whatever the case may be - for X number of months, to continue then on a path past a year and a half, it would need to be rented - some sort of a variance, it would no longer be a single family house, it would be a rental unit of some sort. MR. OAKLEY: Charles is arguing the fact that this is probably a duplex and that what is grandfathered is the rights for a duplex, which I think is wrong. MR. WEAVER: That's exactly my argument. MR. OAKLEY: So Charlie is saying that after eighteen months - now, under the Building Department's interpretation - that's the curious thing - that whereas accessory apartment would have eighteen months before it ran into troubles, it seems to me that this would have twelve months before it definitely ran into trouble. It probably runs into trouble immediately. ACTING SECRETARY DIETERICH: An accessory apartment has stipulation that it - if it was an accessory apartment it would have the stipulation that it is controlled by the Zoning Ordinance because they would establish permit procedure, which this doesn't have. CHAIRMAN TOMLAN: Well we still have to bring this to some sort of closure and we can continue informally afterwards. Unless you feel uncomfortable to bring it to closure. I feel as though we had a motion on the floor, we've been discussing it - we've kept people in suspense long enough, we might as well bring it to an end. Do I PAGE 44 BZA MINUTES - 10/3/88 hear any vociferous opposition to that notion? I don't hear any vociferous opposition, therefore I 'll call for a vote. MR. PECK: It should perhaps be explained to Bea as to what a yes vote means. CHAIRMAN TOMLAN: A yes means a no in this instance, Bea, because the motion was negative in its implications. If you vote no, you are voting positive. So a yes is a no. MR. WEAVER: Would you repeat the motion please? PAGE 45 BZA MINUTES - 10/3/88 DECISION ON APPEAL NUMBER 1873 FOR 203-205 EASTWOOD AVENUE The Board of Zoning Appeals considered the request of Carey Property Management for a use variance to permit the rental of a two-family dwelling at 203-205 Eastwood Avenue as two dwelling units. The decision of the Board was as follows: MR. OAKLEY: I move that the Board deny the use variance requested in Appeal Number 1873. MR. PECK: I second the motion. PROPOSED FINDING OF FACT: 1. The applicant has demonstrated some financial need; he has not demonstrated any unusual hardship which makes this property any different from a number of similar properties in the area. VOTE: 5 YES; 1 NO DENIED PAGE 46 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 1871, 1872 and 1873 , in the Common Council Chambers, City of Ithaca, 108 East Green street, Ithaca, New York, on October 3 , 1988, that I have transcribed same, and the foregoing is a true copy of the transcript of the minutes of the meeting and the action taken of the Board of Zoning Appeals, City of Ithaca, New York on the above date, and the whole thereof to the best of my ` ability. Barbara C. Ruane Recording secretary Sworn to before me this day of !� , 1988 Notary Public _MARIE F CORWA Iftmik State of Now yQ* 4664570 WWddi Gunin CwmW Term Expires March 30- 19