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HomeMy WebLinkAboutZBA Minutes 1978-10-19 iol��.11q � � vrn F ® TOWN OF ITHACA ZONING BOARD OF APPEALS OCTOBER 19 , 1978 The Town of Ithaca Zoning Board of Appeals met in regular session on Thursday , October 19 , 1978 , in Town Hall , 126 East Seneca Street , Ithaca , New York , at 7 : 30 p . m . PRESENT : Chairman Peter K . Francese , Edward N . Austen , Jack D . Hewett , Edward W . King , Barbara Z . Restaino ( Town Planner ) , Robert Bonnell ( Assistant Building Inspector / Assistant Zoning Enforcement Officer ) , Nancy M . Fuller ( Secretary ) . ALSO PRESENT : Attorney Laura H . Holmberg , Eva B . Hoffmann , Geneva S . Booker , Gordon Perry , Steve and Sandi Reukauf , Carolyn Grigorov , Edward A . Mazza , Esq . , Che - Yu Li , Betty Li , Susan Fertik , George C . Kugler , Jean Baker , Michael R . Porter , Marguerite 0 . Mills , Thomas B . Mills , Kinga M . Gergely , Edward Pesaresi , Lyman Baker , Roger M . Spanswick , Helen Spanswick . Chairman Francese declared the meeting 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 October 12 , 1978 , and Ocbober 14 , 1978 , respectively , together with the Secretary ' s Affidavit of Service by Mail of said Notice upon the various neighbors of the properties under discussion and upon the Appellants , and / or their Agents , as appropriate , on October 12 , 1978 . APPEAL OF NEAL F . AND MARY W . JENSEN , APPELLANTS , FROM THE DECISION OF THE BUILDING INSPECTOR DENYING A CERTIFICATE OF OCCUPANCY FOR A RESIDENCE WITH A SHED LESS THAN THREE FEET FROM THE SIDE LOT LINE AT 117 CLOVER LANE , PARCEL NO , 6 - 59 - 2 - 111 ITHACA , N . Y . PERMISSION IS DENIED UNDER ARTICLE XIV , SECTION 76 AND ARTICLE IV , SECTION 13 OF THE TOWN OF ITHACA ZONING ORDINANCE . Chairman Francese declared the Public Hearing in the above - noted matter duly opened at 7 : 36 p . m . and read aloud from the Notice of Public Hearings as posted and published and as noted above . Attorney Holmberg noted that this green wooden tool shed had been there a very long time - - since 1955 . Mrs . Geneva Booker , 111 Clover Lane , stated that the shed has been there for seventeen years and she had never seen it , adding that hers is the second house from the Jensen property . Mrs . Booker stated that the Albrechts , 119 Clover Lane , are also not bothered by this , adding that it was there when the Albrechts built their home . ® Chairman Francese asked if anyone else from the public wished to speak on this matter . No one spoke . Mr . Bonnell wondered whether a building permit should be obtained by Mr . Jensen . Mr . King responded that it was a rather moot point . Zoning Board of Appeals - 2 - October 19 , 1978 MOTION by Mr . Peter Francese , seconded by Mr . Jack Hewett : RESOLVED , by the Town of Ithaca Zoning Board of Appeals , that a variance be and hereby is granted to Neal and Mary Jensen at 117 Clover Lane for the continuance of a shed according to the sketch attached to their appeal , and further , that the Town of Ithaca Building Inspector be and hereby is instructed to issue a Certificate of Compliance for the property at 117 Clover Lane , Parcel No . 6 - 59 - 2 - 11 . There being no further discussion , the Chair called for a vote . Aye - Francese , King , Hewett , Austen . Nay - None . The MOTION was declared to be carried unanimously . Chairman Francese declared the matter of the Neal and Mary Jensen Appeal duly closed at 7 : 46 p . m . APPEAL OF GORDON PERRY , APPELLANT , FROM THE DECISION OF THE BUILDING INSPECTOR DENYING A CHANGE OF PERMIT TO ALLOW A RESIDENCE TO BE BUILT CLOSER THAN 40 FEET TO THE SIDE LOT LINE AT 108 VERA CIRCLE , PARCEL NO . 6 - 28 - 1 - 34 . 36 , ITHACA , N . Y . PERMISSION IS DENIED UNDER ARTICLE XI AND ARTICLE V , SECTION 21 , OF THE TOWN OF ITHACA ZONING ORDINANCE . ® Chairman Francese declared the Public Hearing in the above - noted matter duly opened at 7 : 47 p . m . and read aloud from the Notice of Public Hearings as posted and published and as noted above . Mr . Perry was present . Speaking to Mr . Perry , Chairman Francese noted that he has a house in the process of going up at 108 Vera Circle , adding that the foundation of the house is approximately 31 feet from the west lot line , that is , the wall of the house . Mr . Perry stated that this was his mistake , adding that there was a marker on Vera Circle , and he based his property line on that and also on a marker at the back which put it off 9 feet , and further adding that , as it turned out , the culvert was the marker - - the culvert projects out . Mr . Bonnell stated that he had verified the 31 feet by measurements . Mr . Perry stated that he had talked to Jack Dougherty and found out that the property was staked out and the Town put in a drain and all the stakes were gone . Mr . and Mrs . S . Reukauf , 106 Vera Circle , stated that they have no problem with the granting of a variance . Chairman Francese asked if there were anyone else who wished to speak to this matter . No one spoke . ® MOTION by Mr . Peter Francese , seconded by Mr . Jack Hewett : RESOLVED , by the Town of Ithaca Zoning Board of Appeals , that a Zoning Board of Appeals - 3 - October 19 , 1978 ® side yard variance of approximately 9 feet be granted to permit the Jensens to continue construction of their house approximately 31 feet from the west lot line at 108 Vera Circle , Parcel No . 6 - 28 - 1 - 34 . 46 . There being no further discussion , the Chair called for a vote . Aye - Francese , Hewett , King , Austen . Nay - None . The MOTION was declared to be carried unanimously . Chairman Francese declared the matter of the Jensen Appeal duly closed at 8 : 00 p . m . CONSIDERATION OF REQUEST OF LAWRENCE AND TRINNA IACOVELLI FOR REHEARING OF APPEAL OF JANUARY 10 , 1978 , UNDER SECTION 267 ( 6 ) OF THE TOWN LAW OF THE STATE OF NEW YORK , Chairman Francese declared the Public Hearing in the above - noted matter duly opened at 8 : 01 p . m . and read aloud from the Notice of Public Hearings as posted and published and as noted above . Attorney Edward Mazza was present representing Mr . and Mrs . Lawrence Iacovelli . Attorney Mazza stated that at the time of the hearing in January 1978 the structure was incomplete ; it is now complete . ® Chairman Francese asked how many units , with Attorney Mazza responding that it is a two - family dwelling . Attorney Mazza indicated that a more close approximation of costs was now available . Attorney Mazza stated that he has gone before the Town Board and the Planning Board with respect to the matter as a rezoning and , at this point , all he wanted was some place to hear this , adding that the Town Board and Planning Board said it should come back to the Zoning Board of Appeals . Mr . King noted that the Planning Board recommended going to the Zoning Board of Appeals and did not recommend a rezoning , and the Town Board under Noel Desch said it should go to the ZBA . Chairman Francese stated that Attorney Mazza had done his part in going , as the ZBA suggested , to the Town Board and the Planning Board , Mr . King , noting that he would like to comment , stated that in reading these excerpts , it looks as though the Town Board looked at the matter as a rezoning question rather than considering the possibility of amending the Zoning Ordinance , adding that the ZBA has no power to make any changes in the Zoning Ordinance , Mr . King stated that , aside from that minor confusion , the Town Board did listen to the case and they decided not to act on it . ® Chairman Francese , commenting that he would try to recite the history of the matter , stated that on January 10 , 1978 , the ZBA suggested that Mr . Iacovelli , or his attorney , go to the Town Board Zoning Board of Appeals - 4 - October 19 , 1978 and the Planning Board with a request for a rezoning or an amending of the Ordinance . Chairman Francese noted that , with rising costs , three to four units has been requested several times and the ZBA felt that the Town Board should look into this . Chairman Francese stated that the Town Board and the Planning Board referred the matter back to the ZBA . MOTION by Mr . Peter Francese , seconded by Mr . Edward King : RESOLVED , that the Town of Ithaca Zoning Board of Appeals reconsider the request of Lawrence and Trinna Iacovelli and rehear the Appeal of January 10 , 1978 . There being no further discussion , the Chair called for a vote . Aye - Francese , Austen , Hewett , King . Nay - None . The MOTION was declared to be carried unanimously . Chairman Francese declared the matter of the Lawrence and Trinna Iacovelli request for consideration of a rehearing of their January 10 , 1978 Appeal duly closed at 8 : 09 p . m . APPEAL OF LAWRENCE AND TRINNA IACOVELLI , APPELLANTS , FROM THE DECISION ® OF THE BUILDING INSPECTOR DENYING PERMIT APPLICATION CHANGE TO ALLOW 4 ( FOUR ) DWELLING UNITS RATHER THAN 2 ( TWO ) DWELLING UNITS AT 167 KENDALL AVENUE , PARCEL NO . 6 - 54 - 4 - 25 ( FORMERLY PARCEL NO , 6 - 54 - 4 - 23 ) , ITHACA , N . Y . PERMISSION IS DENIED UNDER ARTICLE III , SECTION 4 , OF THE TOWN OF ITHACA ZONING ORDINANCE . Chairman Francese declared the Public Hearing in the above - noted matter duly opened at 8 : 10 p . m . and read aloud from the Notice of Public Hearings as posted and published and as noted above . Attorney Edward A . Mazza was present representing the Iacovellis . Mr . King , commenting that the Appeal is noted as being on Tax Parcel 54 - 4 - 25 formerly indicated as 54 - 4 - 23 , stated that it might be better for the Board to stick to the old description of 54 - 4 - 23 , that is , old numbers 206 , 207 , 208 from the Ithaca Land Company Subdivision of 1895 . Mr . King noted that these numbers cover 167 Kendall Avenue , adding that old numbers 204 and 205 belong to 165 Kendall Avenue and is where the Iacovelli home is . Attorney Mazza stated that , for the record and in the record , is a six - page letter to the ZBA which was written sometime after the first meeting [ July 11 , 19781 . Attorney Mazza stated that the Board did receive this all in advance of the meeting . Attorney Mazza stated that , also for the record and in the record , is a Judge Frederick B . Bryant case - - Daniel Marvin and H . J . Peter Patrick versus the Zoning ® Board of Appeals of the Village of Cayuga Heights - - which was also presented to the Board ahead of time . Attorney Mazza stated that , for the record and in the reocrd , are the Minutes of the past meeting of the ZBA [ January 10 , 19781 and the Minutes of the Planning Board Zoning Board of Appeals - 5 - October 19 , 1978 ® [ September 19 , 19781 which were also sent to the Board ahead of time . Attorney Mazza stated that , for the record and in the record , is an excerpt from the Town Board meeting of October 10 , 1978 which was sent ahead . Attorney Mazza summarized the 6 - page letter [ attached hereto as Exhibit # 11 , after which he stated that they would expect a condition that the remainder of the 150 - foot parcel would be left open for parking , grass , and green area . Chairman Francese inquired as to when Fulling vs . Palumbo was adjudicated , with Attorney Mazza responding , 1967 , and adding that it was a benchmark case . Attorney Mazza stated that he did not think the Board can show that the public health , safety , and welfare can be harmed by the granting of this variance . Mr . Che - Yu Li , 112 Juniper Drive , spoke from the floor and stated that they have been here several times and his argument has not changed . Mr . Li stated that the economic issue is strictly their own doing , and they built the home with the four units intending that they should get it , adding that that suffering should be considered against the welfare of the neighborhood . Mr . Li stated that the area is ripe for student - type housing ; they have students in their area now and the situation there is very , very bad . Mr . Li stated that the character of the neighborhood would be changed and the economic loss of the ® neighborhood is much more than theirs . Ms . Susan Fertik , 113 Juniper Drive , spoke from the floor and stated that there would be serious economic injury to the neighborhood homes and noted the houses in the City of Ithaca at the corner of Hudson Street and Coddington Road , Ms . Fertik spoke of 13 cars in all , garbage , extra traffic , and stated that this detracts from the rest of the neighborhood homes . Ms . Fertik stated that the economic injury is as great to them as it is to the Iacovellis . Mr . George Kugler , 101 Pine View Terrace , spoke from the floor and spoke of a Petition signed by 28 persons in the area of Pennsylvania Avenue , Kendall Avenue , Pine View Terrace , and Juniper Drive , that had been presented to the Planning Board on September 19 , 1978 . Mr . Kugler stated , " Let ' s get down to brass tacks . Does this property or does it not meet the Zoning Ordinance requirements for multiple residence ? It does not . 43 , 560 sq . ft . is required . " Chairman Francese noted that this hearing involves a use variance and not a rezoning . Mr . Kugler noted that Mr . Sincebaugh has forty lots and he is opposed . Mr . Kugler stated that , as an official of Ithaca College , the College is considering the construction of additional housing at Ithaca College , adding that the students are starting to come back . Mr . King , commenting that he was confused , stated that Ithaca College does not have enough housing for students . Ms . Fertik , noting that they have one unit on it and Attorney Mazza said that they would not build another dwelling unit , wondered Zoning Board of Appeals - 6 - October 19 , 1978 how that would work . Chairman Francese responded , yes if it were granted , this would be a condition of the granting . Mr . Li asked what would prevent Mr . Iacovelli from coming back with some economic hardship . Mrs . Jean Baker , 257 Pennsylvania Avenue , spoke from the floor and talked about the Iacovelli family owning many lots . Mrs . Baker stated that one variance will lead to many more . Mr . Michael Porter , 104 Juniper Drive , spoke from the floor and asked , if a variance were granted , could the other half be sold . Attorney Mazza stated that he would agree that if it be written into the deed that he could not sell the other one and one - half lots . Mrs . Baker noted that Mr . Iacovelli took out a building permit for two units . Mr . Bonnell concurred , adding that now he has four units roughed in . Mrs . Marguerite Mills , 108 Pine View Terrace , spoke from the floor and wondered what the square footage of the structure was . Mr . Thomas Mills wondered what is permitted as ' to dwelling units . Chairman Francese responded , two dwelling units , adding that the request is for four units . The minimum of 600 square feet per unit ® was noted . Mr . Bonnell cited the State Code as to size of units and rooms involved . Attorney Mazza , noting that the comment was made that this is a self - imposed hardship , stated that it is not self - imposed , but lies with the land . Attorney Mazza offered that you would have to build two units on 75 feet or three units on each 50 - foot lot . Chairman Francese pointed out that if Attorney Mazza had brought the matter before this Board , the matter may have been different , adding that they have been through the building . Attorney Mazza , commenting that he would like to speak to the concern about increased traffic , stated that there would be the same number of people on this lot . Attorney Mazza stated that there is a need for rental units , adding that rental is not relevant because renting is not prohibited by the Zoning Ordinance . Mr . Bonnell stated that it meets the Ordinance as far as R- 9 . Mr . King noted that parking is in the front yard at the present time . Attorney Mazza responded that at the present time it is , adding that if the Board requires that it be at the side , they would make it a condition . Ms . Fertik wondered about the requirements for side yards and also spoke about garbage . Chairman Francese described the garbage ® question as a public health matter , and noted that the side yard requirement is met by this structure . Zoning Board of Appeals - 7 - October 19 , 1978 ® Mr . Mills wondered if there were any way of controlling the landscaping , adding that landscaping has never been done in a house near them . Chairman Francese stated that this is not the first time , and certainly not the last time , that this Board has heard this type of problem . Chairman Francese noted that the Zoning Ordinance is being revised , adding that there are many people with two family homes wanting to go to three or four units . Chairman Francese stated that he would urge that if the neighbors feel that the conversion of two - family buildings into three - dwelling buildings is detrimental , those feelings should be conveyed to the Town Board , adding that a number of people have conveyed their approval of this to the Town Board , and further adding that the neighbors views should be let known to the Town Board and to Supervisor Noel Desch . Mr . Li offered that even though a building can have only three unrelated persons , there are two units in their neighborhood that they do not know how many students are in there . Mr . Kugler asked where the plans are for these units . Chairman Francese stated that even if a variance were granted , no occupancy certificate would be issued until after it meets the requirements as set forth by Mr . Bonnell . ® There appearing to be no further questions or comments , Chairman Francese closed the Public Hearing at 8 : 55 p . m . Chairman Francese stated that the Board will take this matter under advisement and with all due speed and deliberation , discuss it and vote upon it . Chairman Francese noted that the Secretary will have other information tomorrow . After discussion , it was decided that the Board will meet next on this matter on November 10 , 1978 , at which time a decision will be rendered . ADJOURNMENT Upon Motion , Chairman Francese declared the October 19 , 1978 meeting of the Town of Ithaca Zoning Board of Appeals duly adjourned until November 10 , 1978 . Respectfully submitted , Nancy M . Fuller , Secretary , Town of Ithaca Zoning Board of Appeals . Peter K . Francese , Chairman . Town of Ithaca Board of Zoning Appeals Town of Ithaca ® Town Hall 126 East Seneca Street Ithaca , New York 14850 Re : Appeal of Lawrence and Trinna Iacovelli from the decision of the Building Inspector denying permit application change to allow four (4 ) dwelling units rather than two ( 2 ) dwelling units at 167 Kendall Avenue , Tax Parcel No . 6 - 54 - 4 - 25 ( formerly No . 6 - 54 - 4 - 23 ) I . On January 10 , 1978 , the appellants herein appealed from a denial of the same permit application change as is requested here . That appeal was unsuccessful for the appellants . ( see minutes of the meeting attached ) The appellants at that time contemplated bringing an Article 78 proceeding to the Supreme Court of the State of New York , but on advice from counsel de - cided to try once again . with the Town of Ithaca Board of Zoning ® Appeals . Counsel felt that some points could be explained more thoroughly and that , with this explanation , the Board would grant the appellants request for a variance . The property in question is located in an area which is zoned R9 Residence . The zoning law of .the Town of Ithaca would allow the appellant to construct a single - family dwelling on a lot with fifty ( 50 ) feet of frontage on the street . The appel - lants property has one hundred fifty ( 150 ) feet of frontage on the street . Thus , under the zoning law , the appellants could construct three single - family dwellings on the property that they own . Since each single - family dwelling can be occupied by up to three unrelated persons , this would allow them to rent out the dwelling to a ' total of nine ( 9 ) unrelated persons . The present application is to allow the appellants to put four units in one building on this lot with one hundred fifty ( 150 ) feet of frontage on the street and rent each unit to no more than two (2 ) unrelated persons . Thus , there would be no more than eight ( 8 ) : : unrelated persons living on a lot where the zoning law would allow nine ( 9 ) . The only difference is the form in which this is accomplished . It is important to note that the lot in question abuts an area that is zoned light industrial . Also , the appellants " home is located directly next door to this lot on the western side of the lot . In the 1967 New York Court of Appeals case of Fulling v . Palumbo ( 21 NT 2d 30 ) , the court was faced with an application for an area variance . The evidence indicated that the owner ® could sell this lot , without a variance , for more than he had originally invested , but that he could derive twice that amount if a variance were granted . The Board of Zoning Appeals in that case had denied his application for a variance without anything in the record to suggest that the public health , safety or wel - fare would be harmed by the granting of the variance . According - ly , the Court of Appeals held that the variance was improperly denied and stated the following rule of law : The basic rule which has evolved from the cases is : where the property owner will suffer significant economic injury by the application of an area standard ordinance , that standard can be justified only by a showing that the public health , safety and welfare will be served by upholding the applications of the standard and denying the variance . Under this language , an applicant for a variance who proves that the ordinance , as it applies to his land , imposes significant - 2 - 1 economic injury , must be granted relief unless the municipality goes forward with proof that the enforcement of the ordinance ® will serve the public health , safety . or welfare . This rule of law has been extended to apply to a ."use " variance . See Socha v . Smith , 33 A . D . 2d 835 , aff ' d 26 N . Y . 2d 1005 , Third Department ; Humble Oil & Refining Co . v . Dek- dedrum , 38 A . D . 2d 46 . Two questions arise from the rule stated in Fulling v . Palumbo : 1 . What consititutes significant economic injury ? and 2 . What must the municipality prove to satisfy the require - ment of . demonstrating that enforcement of the zoning law is re - lated to public health , safety or welfare ? The first question that arises is , "What constitutes signi - ficant economic . injury ? " This question was answered in the case of Fulling v . Palumbo . In that case , the appellant had purchased the property for $ 5 , 000 . 00 and could sell it for $ 11 , 000 . 00 without - a variance . But , with the variance requested , they could obtain almost double the $ 11 , 000 . 00 amount for the property . Thus , a serious economic hardship was shown where the appellants could sell the property without a variance for a profit but could obtain a greater profit with the variance . In the present case the situation is similar : If the appel - lant is not allowed a variance , it would cost him approximately $ 130 , 000 . 00 to build three single - family unit homes . As in - dicated above , this would allow him to rent his property out to no more than 9 unrelated persons . If the variance is allowed , the cost to the appellants would be approximately $ 60 , 000 . 00 to - 3 - 00 J=14 F build a four unit apartment house that would accommodate up to 8 unrelated persons . Thus , it would cost him more than twice ® as much to get the desired amount of occupancy without the variance as it would with the variance . Another alternative that the appellant has , without the variance , is to divide the three lots into two lots of 75 feet of street frontage and build two two - family houses . This would allow appellants to rent the properties to up to 8 unrelated persons . This would be a cost approximately two times what it would cost if the variance was granted . Therefore , by reason of the case of Fulling v . Palumbo , the benchmark case in this . area of the zoning law , it is clear that the appellant has shown a serious economic hardship . Consequently , the municipality must demonstrate that enforce - ® meet of the zoning law is related to public health , safety or welfare . In order to determine what promotes the health , . - safety and welfare , reference is made to the preamble of the zoning ordinance of the Town of Ithaca , ' State of New York . That preamble indicates the purposes for which the zoning ordinances were enacted . ' The preamble reads as follows : For the purpose of promoting the health , safety , morales the general welfare of the community , . and the lessen the congestion in the streets , to secure safety from fire , panic and other dangers , to provide adequate light and air , to prevent the overcrowding of land , to avoid undo concentration of population , to facilitate the adequate provision of transportation , water , sewerage , schools , parks , and other public requirements , under and pursue and through the laws of the State of New York , the size of buildings and other structures , a percentage of lots that may be occupied , the size of yards , the density of population , and the location and use of buildings , structures and land for trade , industry , residence or other purposes , are hereby restricted and regulated as here and after provided . - 4 - It is clear from this preamble , the the purpose setforth therein will not be hindered by the granting of the variance re - ® quested . Specifically , this can be seen as follows : 1 . "To lessen congestion in the streets " - congestion in the streets will not be increased by granting the variance as opposed to denying the variance in that , in fact , fewer unrelated persons will be living on this lot of 150 feet of street frontage . 2 . " to secure safety from fire , panic and other dangers " - it is clear that with the variance granted , the safety from fire , panic and other dangers will be increased rather than hindered because there will be just one building on this .lot rather than three separate and close together buildings on this lot . 3 , " to provide adequate light and air " - it is also clear that the light and air in this area will be increased rather than . hindered by granting the ® variance in that there will be . just one . building on the lot rather than three . 4 . " to prevent the overcrowding of Land " it is . clear that putting one building on the lot rather than three would prevent the overcrowding of land . 5 . " to avoid undo concentration of population " - granting the variance will not increase the concentration of population in that , with the variance , fewer unrelated persons will be living on the lot than are allowed under the zoning laws . 6 . " to facilitate the adequate vrovision of transportation , water , sewerage , schools , parks , and other public requirements " - granting the variance will not hinder the adequate provision of these requirements in that fewer unrelated persons will be ':Aiving on this lot than are allowed under the zoning laws . 7 . " the size of the buildings and other ® structures " . - .this purpose will not be hindered , in that , what - 5 - is proposed to be built does not violate the zoning laws . . 8 . " the percentage of the lot that may be occupied " - this ® purpose will not be hindered because that which is proposed does not violate the zoning laws . 9 . " the size of yards " in the event that the variance is granted there will , in fact , be larger yards than if the appellants were denied the variance . 10 . " the density of population " - the density of population will not be increased in . that there will be fewer unrelated persons Living on this lot with the variance granted than if the vari - ance were denied . 11 . " the location and use of buildings , structures , and land for trade , industry , residence or other purposes " an the location of the building is not an issue in this matter and the use of the building is for residential pur - poses , which is allowed under the zoning laws . Thus , it is clear that the municipality cannot meet its requirement of demonstrating that enforcement of the zoning . law and denying the variance would promote the public health , safety or welfare . Therefore , by reason of the foregoing , it is clear that the benchmark case of Fulling v . Palumbo dictates that the vari - ance . should be granted . The appellants have shown serious economic hardship and it seems clear that the municipality can- not meet its burden of proof . Thus , the appellants respectfully request that the variance be granted . - 6 -