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HomeMy WebLinkAboutZBA Minutes 1981-04-08 .� ,, f TOWN OF ITHACA ZONING BOARD OF APPEALS APRIL 8 , 1981 The Zoning Board of Appeals of the Town of Ithaca met on Wednesday , April 8 , 1981 , in Town Hall , 126 East Seneca Street , Ithaca , New York , at 7 : 30 p . m . PRESENT : Chairman Jack D . Hewett , Edward N . Austen , Joan Reuning , Henry Aron , Lewis D . Cartee ( Town Building Inspector ) , Nancy M . Fuller ( Secretary ) . ALSO PRESENT : Arno Finkeldey , Armand L . Adams , Esq . , Libby 0 . Leonard , Karen O ' Regan , William S . Friedlander , Hoyt D . Benjamin , Jack Krozser , Debra Stokes . Chairman Hewett declared the meeting duly opened at 7 : 35 p . m . APPEAL OF WAYNE AND DEBRA STOKES , APPELLANTS , FROM THE DECISION OF THE BUILDING INSPECTOR DENYING PERMISSION FOR OCCUPANCY OF A TWO- FAMILY DWELLING BY A FAMILY IN ONE DWELLING UNIT AND . THREE UNRELATED PERSONS IN THE SECOND DWELLING UNIT AT 109 JUDD FALLS ROAD , PARCEL NO , 6 - 66 - 4 - 18 , ITHACA , N . Y . PERMISSION IS DENIED BY THE BUILDING INSPECTOR UNDER ARTICLE IV , SECTION 11 , PARAGRAPH 2 ( a ) ( 2 ), OF THE TOWN OF ITHACA ZONING ORDINANCE . Chairman Hewett declared the Public Hearing in the above- noted matter duly opened at 7 : 35 p . m . , and accepted for the record the Clerk ' s Affidavit of Posting and Publication of the Notice of Public Hearings in Town Hall and the Ithaca Journal on March 31 , 1981 , and April 3 , 1981 , respectively , together with the Secretary ' s Affidavit of Service by Mail on April 2 , 1981 , of said Notice upon the various neighbors of the property in question and upon Wayne and Debra Stokes , as parties to the action . Chairman Hewett read the Appeal , as noted above out loud . Mrs . Stokes appeared before the Board and stated that her Appeal is as noted on the Appeal Form she submitted , which reads as follows : " A family is occupying the upper apt . , while three ( instead of two ) persons occupy the lower apt . The lower apt . is such , as to comfortably house three persons . Considering the floor space per person in other dwellings in the surrounding areas ; we ask for a temproary variance to last for the duration of the lease presented with this Appeal . ( Dated ) March 22 , 1981 . ( Signed ) Debra L . Stokes . " Mrs . Stokes stated that the lease for the three gentlemen downstairs expires on July 31 , 1981 , and after that they will conform with the zoning ordinance . It was noted that the Board members had received a copy of the lease with their agenda . . A letter from Mr . Frank R . Liguori , P . E . , Commissioner of Planning , Tompkins County Department of Planning , dated April 8 , 1981 , indicating that " . . . The proposal , as submitted , will have no significant deleterious impact on intercommunity , county , or state interests . Therefore , no recom- mendation is indicated by the County Planning Department and you are free to act without prejudice . " , and addressed to Mr . Lewis D . Cartee , was entered into the official record . In addition , the Secretary stated that on this date , April 8 , 1981 ) the following persons all telephoned , individually , to express opposition -to Zoning Board of Appeals - 2 - April 8 , 1981 to the granting of a variance for occupancy in this structure , and , to support the Building Inspector in his denial : ( 1 ) Dorothy and Robert ® Summers , 116 McIntyre Place , ( 2 ) Miriam Hodges , 116 Judd Falls Road , ( 3 ) Rosemary Silbey , 105 Judd Falls Road , ( 4 ) Ruth Mahr , 103 Judd Falls Road . Mr . Hewett stated that it would be his recommendation to adjourn the matter until the first meeting of this Board in August of 1981 . and that Mr . Cartee report on the situation at that time . MOTION by Mr . Edward N . Austen , seconded by Mr . Henry Aron : RESOLVED. , that the matter of the Appeal of Wayne and Debra Stokes , Appellants , now before the Board of Appeals of the Town of Ithaca , in re the occupancy of a two- family dwelling at 109 Judd Falls Road , Parcel No . 6 - 66 - 4 - 18 , be and hereby is adjourned until the first meeting of this Board in August 1981 . There being no further discussion , the Chair called for a vote . Aye - Hewett , Austen , Reuning , Aron . Nay - None . CARRIED UNANIMOUSLY . Chairman Hewett declared the Public Hearing in the matter of the Stokes Appeal duly adjourned at 7 : 45 p . m . APPEAL OF GENE P . NUSE , APPELLANT , JAMES A . SALK , ESQ . , AS AGENT , FROM THE ® DECISION OF THE BUILDING INSPECTOR DENYING PERMISSION FOR OCCUPANCY OF A TWO- FAMILY DWELLING BY SEVEN UNRELATED PERSONS AT 174 KENDALL AVENUE , PARCEL N0 . 6 - 54 - 5 - 22 , ITHACA , N . Y . PERMISSION IS DENIED BY THE BUILDING INSPECTOR UNDER ARTICLE III , SECTION 4 , PARAGRAPH 2 ( a ) , OF THE TOWN OF ITHACA ZONING ORDINANCE . Chairman Hewett declared the Public Hearing in the above - noted matter duly opened at 7 : 46 p . m . , and accepted for the record the Clerk ' s Affidavit of Posting and Publication of the Notice of Public Hearings in Town Hall . . and the Ithaca Journal on March 31 , 1981 , and April 3 , 1981 , respectively , together with the Secretary ' s Affidavit of Service by Mail on April 2 , 1981 , of said Notice upon the various neighbors of the property in question and upon Gene P . Nuse and James A . Salk , Esq . , as parties to the action . Chairman Hewett read the Appeal as noted above out loud . Mr . Cartee reported to the Board that Mr . Nuse had been called for two weeks ' training with the Army Reserve and that his Attorney , Mr . Salk , was not comfortable appearing without him and that his attorney requested that the Board adjourn the matter until the May 1981 meeting of the Board . MOTION by Mr . Jack Hewett , seconded by Mrs . Joan Reuning : RESOLVED , that the Public Hearing in the matter of the Appeal of Gene P . Nuse in re the occupancy of a two - family dwelling at 174 Kendall Avenue , ® Parcel N . 6 - 54 - 5 - 22 , be and hereby is adjourned until the May 1981 meeting of the Zoning Board of Appeals of the Town of Ithaca . There being no further discussion , the Chair called for a . vote , Aye - Hewett , Austen , Reuning , Aron . Nay - None . Zoning Board of Appeals - 3 - April 8 , 1981 The MOTION was declared to be carried unanimously . Chairman Hewett declared the Public Hearing in the matter of the Nuse Appeal duly adjourned at 7 : 50 p . m . PUBLIC HEARING : APPEAL OF DAVID AND SYLVIA MINTZ , APPELLANTS , ARNO FINKELDEY , AS AGENT , FROM THE DECISION OF THE BUILDING INSPECTOR DENYING PERMISSION FOR A SINGLE - FAMILY DWELLING HAVING BEEN CONSTRUCTED WITH A SIDE YARD OF 616 " CONTRARY TO THE GRANTING OF A VARIANCE FOR A SIDE YARD OF 111 , AT 1061 TAUGHANNOCK BLVD . , PARCEL NO , 6 - 21 - 2 - 13 , ITHACA , N . Y . PERMISSION. IS DENIED BY THE BUILDING INSPECTOR UNDER ARTICLE IV , SECTION 34 , AND ARTICLE XIV , SECTION 75 , OF THE TOWN OF ITHACA ZONING ORDINANCE . Chairman Hewett declared the Public Hearing in the above - noted matter duly opened at 7 : 50 p . m . , and accepted for the record the Clerk ' s Affidavit of Posting and Publication of the Notice of Public Hearings in Town Hall and the Ithaca Journal on March 31 , 1981 , and April 3 , 1981 , respectively , together with the Secretary ' s Affidavit of Service by Mail of said Notice upon the various neighbors of the property in question and upon David and Sylvia Mintz and Arno Finkeldey , as parties to the action . Mr . Arno Finkeldey appeared before the Board and stated that he was the contractor for _ David and Sylvia Mintz for the single - family dwelling built at 1061 Taughannock Blvd . with the measurements having been taken from what appeared to be an original survey of" the property and they applied for a variance of 4 ' from the south lot line , making an 11 ' side yard , which was granted on April 8 , 1980 , and then this survey , which is a new survey , indicates that the distance is actually 6 . ' 6 " from the side lot line . ( Secretary ' s Note : Mr . Finkeldey was referring to the following survey : " Survey Map , Lands of David and Sylvia Mintz , Located at Nos . 1057 and 1061 Taughannock Boulevard , Town of Ithaca , Tompkins County , New York " , dated September 29 , 1980 , signed by Thomas G . Miller , sealed by Richard A . Slade , Licensed Land Surveyor , T . G . Miller P . C . , Engineers and Surveyors , Ithaca , New York , Scale 1 " = 301 . ) Mr . Finkeldey stated that they did everything they could at the time of beginnings of construction to measure the premises as closely as they could so that they could erect this building in the position called for . He stated that this survey now before the Board has been made since that time and that he would like to ask that the position of the house is satisfactory within the limits of this Town . He stated that he felt that they acted in good faith insofar as they used the information they had . Mr . Hewett asked when the new Survey was done , to which Mr . Finkeldey replied , September 29 , 1980 . Mr . Aron asked when Mr . Finkeldey started to build , to which Mr . Finkeldey replied , about April 15 , 1980 , they began excavating . Mr . Aron asked if Mr . Finkeldey were informed of the location of .the building . Mr . Finkeldey stated that he was , on March 18 , 1980 , Mr . Aron asked what the difficulty was . Mr . Finkeldey stated that at the time , to the best information he had , measurements were taken working with his partner and excavator and Mr . Cartee was there sometimes . .Zoning Board of Appeals - 4 - April 8 , 1981 Mr . Cartee stated that the building permit was issued April 17 , 1980 , and he did see the foundation . He stated that the north lot line , to the best of their information , was marked with a red flag . He stated that they measured distances , and foundations for the pad were measured 15 ' from the lot line on the north which would give the proper lot line on the south of 11 ' . Mr . Cartee stated that they got into framing and at the point there appeared to be a problem with the construction in that Mr . Mintz did not like the construction of the property inasmuch as the pad level of the house was not high enough . Mr . Cartee stated that he inspected and now they were upstairs with plumbing , so he talked to the contractor and said that he ( Cartee ) could not accept this inasmuch as there may be a problem with the space being used on the ground level , and so , it was agreed that they would remove the facilities for waste water disposal on the ground level . Mr . Cartee stated that this satisfied him and they proceeded with the two- bedroom house upstairs . Mr . Cartee stated that , at the time between framing and completion of the house , he went for a final inspection , it being now late summer . He stated that the Mintz property to the south had been sold to another party , that is , the original Mintz house at 1057 Taughannock Blvd . He stated that he contacted the new owners of the property and it was referred to the attorney of the new owners , Mr . Friedlander in Waverly , who obtained information relative to the Survey the Board now has before them . He stated that his understanding is that the survey map was presented on the day of the closing at the attorney ' s and bank ' s office . Mr . Cartee stated that the Board will note that the well for the Mintz property is now located on the property of the new owner . He stated that he is not concerned with the well at this juncture . He stated . that he is concerned with the problem of issuing a certificate of compliance which he cannot do without the Board ' s direction . Mr . Cartee stated that he thought the contractor on the house acted in good faith and that he ( Cartee ) acted in good faith on the lot line information provided to them . by the lot line markers , which he assumed had been placed there by Mr . Mintz . Mr . Cartee stated that this is a thing that there has been a problem with over the years and the Town staff had tried to avoid this being a problem but this one got by us and he is happy that it is before the Board for a decision . Mr . Austen asked if the property to the north is 15 ' from the house . Mr . Cartee stated that it is , and is the property of Libby Leonard to the north and is not a question . Chairman Hewett asked if there were anyone present who wished to speak to this matter . Mr . Hoyt Benjamin , 1015 Taughannock Blvd . , stated that his objection is that in his experience along the Lake appeals have been denied . He stated that his house had an apartment which was put in illegally and he was forced to remove it and it is empty . He stated that if the Zoning Board is going to be lenient , they have to be lenient all along Taughan - nock Blvd . and let everyone with little lots be able to have little lots . Mr . Benjamin stated that if this request is passed , the Board will see variance requests from him and other people . He stated that this is a cost problem for him ; he had hoped for a residence ; it is now empty . Attorney Armand L . Adams appeared before the Board and stated that he was representing Mrs . Libby Leonard , the neighbor on the other side . Mr . Adams stated that they do support the denial of the application and feel that it is improper to have this house where it is . He stated that there was a hearing on this in April of 1980 and Mrs . Leonard attended what she thought was the hearing , but all the time she was sitting in the Town Justice ' s courtroom , thinking it was the Board of Appeals meeting and so Zoning Board of Appeals - 5 - April 8 , 1981 was not able to speak . Mr . Armand stated that it is their opinion that this house should not have been built in the first place on a 50 - foot lot . Mr . Adams stated that through all this period of time Mr . Mintz had a map ® and there was no question of the lines . Mr . Adams stated that there is a serious question about the sewer system septic discharge . Mr . Adams asked that the following letter be entered into the record : " April 21 , 1980 Mr . John Andersson Environmental Engineer Tompkins County Health Dept . Trumansburg Road Ithaca , N . Y . 14850 Re : Private Septic System MINTZ - 1061 Taughannock Blvd , Dear John : We represent Libbie Leonard , owner of premises next north of lands of David Mintz in the Town of Ithaca . Mintz appears to be building a new residential structure on a 50 foot lot , rather than reconstructing a present structure or relocating a new structure on the old foundation . This in itself seems to be a ® violation of the Town Building Code for which no explanations has been given . How a building permit was given for the new house on the proposed location , I do not understand . It is to prevent situations like this that we have a zoning ordinance . Our real concern is as to the provision for pollution abatement from the septic systems . The terrain at the expected point of discharge from the disposal field and / or sand filter is such that any effluent will flow northeast on to the Leonard property . In approving the septic system and eventual discharge , we want to be sure that the full flow will be to the south on other lands of Mintz ( 1059 Taughannock Blvd . ) and that there be no possibility the pollutants will go on Mrs . Leonard ' s property . Yours truly , ADAMS AND THEISEN ( sgd . ) Armand L . Adams " Mr . Adams stated that it is too large a house on a 50 - foot lot and that the septic tank does drain into Mrs . Leonard ' s property . Mr . Adams stated that he and Mrs . Leonard support the Building Inspector in his denial and ask that the Board also support the Building Inspector and deny this appeal . Mr . Aron noted that Mr . Adams did mention that the septic system effluent is draining onto Mrs . Leonard ' s property and he asked if Mrs . Leonard did notify the Health Department since Mr . Adams ' sent his letter in 1980 . Mrs . Leonard stated that she has not made any complaints but that she - Zoning Board of Appeals - 6 - April 8 , 1981 is going to make complaints to the Health Department . Mrs . Leonard stated that she has been a resident of the Lake since 1942 and has had a very bad time with Mr . Mintz . She stated that he is a nasty man and that she would ® rather let Mr . Adams speak because she gets too upset . Mr . William Friedlander stated to the Board that he is the attorney for Karen O ' Regan and that there was absolutely no problem to making this building conform with the variance that was granted . He stated that they had no problem themselves in determining this . Mr . Friedlander stated that Mr . Benjamin made a good point when he noted that on the Lake in the community that they live in there has to be rules and regulations that are followed . He stated that a variance was granted and because someone made a mistake they must be held responsible . Mr . Friedlander stated that no one should have their property either devalued or changed because of this error . Mr . Friedlander stated that he would ask that the decision of the Building Inspector be affirmed . Mrs . Karen O ' Regan stated that she did not realize where this all happened along the way and how one could apply for a variance and receive one and then end up with the house too close . She stated that this all. seems to confirm what has happened with the house she bought from Mr . Mintz ( 1057 Taughannock Blvd . ) , adding that the trees are gone , the well for the house at 1061 is on her property , and the whole fiasco of the living room ceiling caving in the day they got there . Mr . Friedlander stated that if the Board looks at the Survey they can see that not only is the well on Mrs . O ' Regan ' s property but the sidewalk zig - zags on to her property also . He said that this is a good ® example of what was done . Mr . Friedlander stated that Mr . Cartee cannot go out with a survey every time nor can he do the surveying . Mr . Cartee stated that the Tompkins County Health Department issued a permit for a sewerage system on April 24 , 1978 , two years prior to the application for building permit . Mr . Cartee stated that he was aware of this situation because he was a member of the Tompkins County Health Department staff at that timeand he was working the area of this property . He stated that he was in North Carolina on vacation . when the permit was issued , adding that he would not have issued it . Mr . Cartee recounted the following : ( 1 ) Prior to the date of the issuance of the sewage disposal permit the Health Department had changed their regulations relative to lot sizes . ( 2 ) Also , at that time he _ had visited Mrs . Leonard ' s property relative to the Mintz application for sewage disposal . permit , and there was a shack falling down on the edge of Lake on Mr . Mintz ' s property . He informed Mr . . Mintz that if he rebuilt in that area , the Health Department might consider a permit for sewage dis - posal . He went away . The permit was issued . ( 3 ) Inasmuch as he had all this information , he questioned the Health Department in 1980 , as a now Town employee , prior to issuing a building permit for this property . Mr . Cartee pointed out that in the submissions to the Board , there was a note from a Sanitary Inspector of the Health Department , Eleanor K . Levengood , dated April 16 , 1980 , on the Sewage Construction Permit ® as follows : " An extension on the original application for David Mintz property #6 - 21 - 2 - 13 and all specs drawn up on original application dated 4 / 24 / 78 are in effect for one year from issuance 4 / 16 / 81 . " He noted that the Board ' s papers also include the original 1978 application , the revised building permit application 7 / 28 / 80 , and a letter from Mrs . Levengood to Mr . Finkeldey 6 / 24 / 80 , copy to him . - . Zoning Board of Appeals - 7 - April 8 , 1981 Mr . Cartee stated that it would appear that they were hoodwinked on . the north boundary line and that they were farther than 15 ' away . He stated that it is a dilemma . Mr . Aron asked Mr . Finkeldey if he solely supervised the construction or did Mr . Mintz . Mr . Finkeldey stated that Mr . Mintz was residing in the other house . He stated that he is disabled and to a certain extent unable to be on the building site a good portion of the time , but he did see the house and see the construction from time to time . Mr . Aron asked Mr . Finkeldey if Mr . Mintz were aware of the building being too close . to which Mr . Finkeldey replied , no . Mr . Aron asked Mr . Finkeldey if he were aware of the building being too close , to which Mr . Finkeldey replied , no . Mr . Aron asked why , adding , did you survey it , to which Mr . Finkeldey replied , no , he took it off a measuring device . Mr . Cartee stated that he took his measurements from a red flag and went 15 ' . Mr . Austen asked Mr . Cartee if the new Survey changed the north lot line . Mr . Cartee stated that he did not know . Mr . Friedlander stated that it would have been a very simple matter to avoid this had Mr . Mintz , prior to starting , ordered the survey done since he was aware since 1978 that he was going to build this home . Mr . Cartee stated that the Town does not require a survey of property for issuance of a building permit . ® Mr . Benjamin stated that on the Lake where properties are tight he thought possibly that it would only make sense to have a survey , common sense , that is . Mr . Austen stated that it is up to the owner and the attorneys to see to the correct property lot lines . Mrs . Reuning asked if the house - is completed , followed by Mr . Hewett asking if the house is up . Mr . Finkeldey stated that it is completed .. Mr . Hewett asked if the house were occupied , to which Mr . Finkeldey replied , it is occupied . Mr . Friedlander stated that the house is rental property . Mr . Aron asked if Mr . Finkeldey were acting for Mr . and Mrs . Mintz and if he were their agent . Mr . Finkeldey replied , yes . Mr . Finkeldey stated that there were steel pipes set on the premises and to the best of his knowledge they were set by a surveyor , that is what he was informed . Mr . Finkeldey pointed out the jargon used on the Survey noting the different terms - - pipe found - - pipe set - - and stated that " pipe set " means that it is a new pipe . He asked if it could be that these pipes have been changed . He stated that he was . not sure of -.what we are dealing with here , perhaps , we are dealing with an incorrect survey . Mr . Cartee asked that the Board please address the problem of Mrs . Leonard , noting that there is a sand filter on the Mintzproperty , and adding that he does not know where it discharges . Mr . Cartee stated that he would like direction - - should he investigate this ? - - should the Health Department ? - - they issued the permit . Mr . Cartee stated that he feels we have to address Mrs . Leonard ' s problem and make a move either Zoning Board of Appeals - 8 - April 8 , 1981 through his office ; through his office with the Health Department since they designed the system , and find out where the effluent is discharging . Mr . Cartee stated that this is all after the fact . He stated that he is as concerned about Mrs . Leonard ' s problem as he is with the house location problem , adding that Mrs . Leonard has a garden that may be influenced . Mr . Austen asked if the outlet of this was on her lot line . Mr . Cartee stated that it certainly looks that way . Mr . Aron stated that he would like to suggest that two or three members of the Board go up to the property and look over the situation at it relates to the property in question and also the Leonard property and the O ' Regan property . Mrs . Reuning asked if the problem were the septic system . Mr . Cartee stated that there are two problems - - ( 1 ) the south lot line not . being in compliance , and ( 2 ) the discharge , possibly now or in the future , of the sand filter effluent on to Mrs . Leonard ' s property . Chairman Hewett stated that he agreed that the members of the Board should check these matters out with a personal visit . MOTION by Mr . . Edward Austen , seconded by Mrs . Joan Reuning : RESOLVED , that the Public Hearing in the matter of the Appeal of David and Sylvia Mintz , Appellants , Arno Finkeldey , as Agent , be and hereby is adjourned to the May 1981 meeting of the Town of Ithaca Zoning Board of Appeals , with notification of such meeting to the parties . ® There being no further discussion , the Chair called for a vote . Aye - Hewett , Austen , Reuning , Aron . Nay - None . The MOTION was declared to be carried unanimously . Chairman Hewett declared the Public Hearing in the matter of the Mintz Appeal duly adjourned at 8 : 40 p . m . ADJOURNMENT Upon Motion , the Chair declared the April 8 , 1981 , meeting of the Town of Ithaca Zoning Board of Appeals duly adjourned at 8 : 40 p : m . Respectfully submitted , Nancy M . Fuller , Secretary , Jack D . Hewett , Chairman Zoning Board of Appeals Town of Ithaca