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HomeMy WebLinkAboutZBA Minutes 1981-05-13 n G �. A; TOWN OF ITHACA ZONING BOARD OF APPEALS MAY 131 1981 The Town of Ithaca Zoning Board of Appeals met in regular session on Wednesday , May 13 , 1981 , in Town Hall , 126 East Seneca Street , Ithaca , N . Y . , at 7 : 30 p . m . PRESENT : Chairman Jack D . Hewett , Edward N . Austen , Joan G . Reuning , Edward W . King , Henry Aron , Lewis D . Cartee ( Building Inspector ) , Nancy M . Fuller ( Secretary ) . ALSO PRESENT : Anna Leighton , Frederick A . Leighton , Gene P . Nuse , William B . Schooley , Libby 0 . Leonard , Karen O ' Regan , Peter N . Littman , Esq . , Jack Krozser , Lawrence A . Gray , Judy Hausner , Randall A . Hausner , Gertrude Gray , Town Councilman George Kugler , Lawrence Iacovelli , Mark L . Iacovelli , Fred Brainard , Edward A . Mazza , Esq . , ArmandL . Adams , Esq . , Betty Li , Mark Li , Dave Burbank ( WTKO News ) , Chairman Hewett declared the meeting duly opened at 7 : 40 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 May 5 , 1981 and May 8 , 1981 , respectively , together with the Secretary ' s Affidavit of . Service by Mail , on May 6 , 1981 , of said Notice upon the various neighbors of each of the properties in question , and upon others with interest , and upon the Appellants ( and Agents , if any ) , as parties to the actions . It was noted that each Board member had received with his / her Agenda copies of all documents received with respect to each Appeal . ADJOURNED APPEAL ( FROM APRIL 8 , 1981 ) 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 NO . 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 Adjourned Public Hearing in the above - noted matter duly opened at 7 : 41 p . m . and read aloud the Notice as published and as noted above . Chairman Hewett referenced the Appeal Form as had been signed and submitted by James A . Salk , Attorney for Gene P . Nuse , Owner , and dated March 18 , 1981 , said Appeal reading as follows : " . . . Having been denied permission to lease my premises to seven unrelated people at 174 Kendall Ave . , . . . 1 . The premises are in conformance with the ® Zoning Ordinance as a non conforming use . 2 . A special permit should be granted under Article III , Section 4 ( 2 ) ( b ) , or 3 . A �L Zoning Board of Appeals 2 May 13 , 1981 ® variance should be granted as the premises are not economically viable for any use other than the use sought herein . " Mr . Nuse was present on his own behalf and presented a map to the Board , stating that the Belous ' property is to the east 48 ' and the Hilker property is to the west 40 ' . He stated that he purchased his property from Belous in 1979 . Mr . Nuse stated that he had checked the zoning , purchased a zoning ordinance , read it , and found nothing in the ordinance to indicate that the occupancy of his property was incorrect . Mr . Nuse stated that he had not been given the . whole law , he was not given the 1970 occupancy amendment . Mr . Nuse stated that the house is a two - unit house , but there is a double living room in the 4 -bedroom side . Mr . Aron asked how the people are distributed in the house . Mr . Nuse stated that there are five in the four -bedroom side which , he felt , is too many . He stated that there are two in the two- bedroom side . Mr . Nuse stated that he is going to request a variance for six persons , not seven . Mr . Nuse stated that he tries to maintain the building as best he can , there is garbage collection which he pays for . He stated that he has some control over the tenants . He stated that the lawn is kept mowed and loose papers are picked up . He stated that there is ample off - street parking on the property , noting that the house is ® fairly deeply off - set on the lot . Mr . Nuse noted that there is a house on Pennsylvania Avenue , adding that it is all brush for quite a distance . Mr . Nuse stated that the Belouses have an apartment across the street and there is a duplex down the street also . Mr . Nuse stated that he would like to request occupancy by six persons , i . e . , one person per bedroom , and , temporarily , until August 15 , 1981 , he would like to request occupancy by seven persons , i . e . , until the expiration of the present lease . Mr . King asked if this house has always had six bedrooms , to which Mr . Nuse replied , yes . Mr . Cartee asked Mr . Nuse if he had a copy of his lease in hand . Mr . Nuse stated that he did not but he could provide a copy for him . Mr . King noted that the lease for the four -bedroom side expires August 15th , 1981 , and asked Mr . Nuse if he could control that occupancy . Mr . Nuse stated that he made an attempt to evict all five of the tenants and had little success . Mr . Aron asked Mr . Nuse to elaborate on that statement . Mr . Nuse stated that the tenants resisted and so he went to his lawyer who said that they had a lease in place . Mr . Cartee asked Mr . Nuse if his lease refers to four persons and a sub - letting to a fifth . Mr . Nuse stated that it did not ; it says five people . Chairman Hewett asked if there were anyone present who wished to speak to this matter . No one spoke . Zoning Board of Appeals 3 May 13 , 1981 ® Mr . King questioned Mr . Nuse as to possible uses for the dwelling other than six tenants . Mr . Nuse stated that reducing the occupancy to the permitted total of three unrelated persons would certainly reduce his sale price . He stated that the house was designed to be a rental property ; the house was designed for six people , its use was for income property . Mr . Austen asked if this dwelling were not suitable for two families . Mr . Nuse replied that he supposed so , but not really . Mr . Nuse described the way the house is sited on the lot and how the property is not congested . He described how the Ithaca College students walk by and over his property to class . He stated that he lived on the property for two years so is well acquainted with the situation and its use . Mr . King asked Mr . Nuse if he were contemplating selling the property now . Mr . Nuse stated that he was not thinking about selling this year , but maybe next year . Mrs . Reuning asked Mr . Nuse how many people resided in the house when he lived there . Mr . Nuse replied that he lived in one side and rented to four people . Mr . King commented that it appeared that the Appellant was requesting that the Board vary the rules for this piece of ® property , in this particular instance , while contemplating a resale . Mr . Cartee reminded the Board of the Sullivan Appeal in December 1980 with respect to property at 242 Coddington Road where special approval was granted to operate a single family residence as a rooming house for four unrelated persons and commented that this is not a unique case . Chairman Hewett discussed the August 15th lease expiration date with the Board . Mr . Cartee suggested that the Board consider indicating to Mr . Nuse the number of occupants it might entertain . Mr . King stated that he felt that it had been indicated . Mr . King stated that the premises should be brought into compliance by August 15th , adding that he did not think the Board had heard anything that requires such variance . MOTION by Mr . Edward King , seconded by Mr . Henry Aron : RESOLVED , that the Town of Ithaca Zoning Board of Appeals give and hereby does give the Appellant , Gene P . Nuse , until August 15 , 1981 to bring the subject property , 174 Kendall Avenue , Town of Ithaca Tax Parcel No . 6 - 54 - 5 - 22 , into compliance with the Town of Ithaca Zoning Ordinance as to the number of occupants , and FURTHER RESOLVED , that said Board of Appeals adjourn and hereby does adjourn the matter of the Nuse Appeal until the first meeting of said Board in September 1981 . Zoning Board of Appeals 4 May 13 , 1981 ® There being no further discussion , the Chair called for a vote . Aye - Hewett , Austen , Reuning , King , Aron . Nay - None . The MOTION was declared to be carried unanimously . Mr . Cartee requested of Mr . Nuse that he provide his office with a copy of the lease and that on August 15th the property be made available for inspection . Chairman Hewett declared the matter of the Nuse Appeal duly adjourned . APPEAL OF FREDERICK AND ANNA LEIGHTON , APPELLANTS , FROM THE DECISION OF THE BUILDING INSPECTOR DENYING BUILDING PERMIT FOR THE CONSTRUCTION OF AN ADDITION TO THE REAR OF AN EXISTING DWELLING , CREATING A REAR YARD 4 ' LESS THAN REQUIRED , AT 110 WARREN ROAD , PARCEL NO . 6 - 66 - 2 - 6 , ITHACA , N . Y . PERMISSION IS DENIED BY THE BUILDING INSPECTOR UNDER ARTICLE IV , SECTION 14 , OF THE TOWN OF ITHACA ZONING ORDINANCE . Chairman Hewett declared the Public Hearing in the above - noted matter duly opened at 7 : 55 p . m . , read aloud the ® Notice as published and as noted above , and referenced the Appeal Form as signed and submitted by Frederick A . Leighton and Anna L . Leighton on April 30 , 1981 , such Appeal reading as follows : " We expect our first child in July , 1981 and wish to expand our one - bedroom house to provide the necessary space . Expansion northward is beyond our means due to the very high cost of the required excavation of the site which is inaccessible to machinery . A westward expansion is within our means and exceeds the western limit of the present enclosed porch by only six feet . This brings the westernmost wall of the proposed addition to 26 feet from the western ( rear ) lot line . Thus we request a variance for our rear lot line of four feet . " Mr . Leighton appeared before the Board and stated that their request is for permission to build an extension to a small house on Warren Road in Forest Home . He stated that the regulations require a 30 - foot rear yard and this proposed extension would extend 4 feet into that . He stated that their nearest neighbor is quite some distance away - - both ways . He stated that the nearest neighbor would be doing the construction ( McElwee ) . Mr . Leighton stated that they looked at possibly going northward but there would be considerable excavation involved and the terrain is very difficult and also it would involve the removing of a very special tree . Chairman Hewett asked if there were anyone present who ® wished to speak to this matter . The Secretary read the following memo from the Building Inspector , Mr . Cartee : " May 11 , 1981 - Phone Call - 11 : 45 a . m . - - Mr . Paul Kiely , 116 Warren Road , Zoning Board of Appeals 5 May 13 , 1981 ® Ithaca , N . Y . , called regarding the Appeal of Frederick and Anna Leighton , 110 Warren Road , for a variance at rear lot line . Mr . Kiely objects to the variance as he has problems regarding the Leightons ' dogs . Further , states , the Leightons purchased the property a year or so ago knowing the size of the dwelling was small . Mr . Kiely requests the ZBA deny the variance . " Mr . King asked how far away the Kiely premises are , to which Mr . Leighton replied , about 100 feet . Mr . Aron noted that the Leighton residence only has at present one bedroom and living room/ dining room and asked how big the bedroom is . Mr . Leighton stated that it is 13 ' x 12 ' and the other room is 13 ' x 151 . Mr . Aron noted that Mr . . Leighton is requesting to add 216 sq . ft . A discussion followed with respect to the proposed addition and the deck which is to be open as depicted on the drawing submitted with the Appeal . Mr . King asked if this proposed addition would run into any rights of way for sewer lines . Mr . Leighton stated that that was correct . He stated that they have talked to the Town Engineer , Mr . Fabbroni , on this and he has told them that he needs a ten - foot corridor for maintenance . Mr . Leighton stated that Mr . Fabbroni is asking them to sign an agreement that , should significant maintenance be required , which he does not ® anticipate , costs would be borne by them ( Leighton ) . Mr . Cartee stated that Mr . Fabbroni has discussed the matter with Mr . and Mrs . Leighton and they agreed on a paper being drawn up . Mr . Cartee stated that the Town Engineer has no objection to this addition . Mr . King commented that the Leightons ' proposed . construction does not pose a problem for him but he would note its infringement on the easement . MOTION by Mr . Henry Aron , seconded by Mrs . Joan Reuning : RESOLVED , that the Town of Ithaca Zoning Board of Appeals grant and hereby does grant an area variance of four feet from the 30 - foot requirement of Section 14 of the Town of Ithaca Zoning Ordinance for property known as 110 Warren Road , Town of Ithaca Tax Parcel No . 6 - 66 - 2 - 6 , as requested by Frederick and Anna Leighton , Appellants and owners of record , and as shown on drawing attached to application for building permit dated April 30 , 1981 , to permit the construction of a 216 square foot addition , plus open deck , at the rear of the existing house on said property such that the rear yard at said property is 26 feet , and FURTHER RESOLVED , that said grant of variance is subject to ® there being an agreement with the Town Engineer with respect to the sewer easement . Zoning Board of Appeals 6 May 13 , 1981 ® There being no further discussion , the Chair called for a vote . Aye - Hewett , Austen , Reuning , King , Aron . Nay - None . The MOTION was declared to be carried unanimously . Chairman Hewett declared the matter of the Leighton Appeal duly closed at 8 : 09 p . m . APPEAL OF RANDALL AND JUDITH HAUSNER , APPELLANTS , FROM THE DECISION OF THE BUILDING INSPECTOR DENYING BUILDING PERMIT FOR THE CONSTRUCTION ' OF A GARAGE 3 ' FROM SIDE LOT LINE AT 149 RIDGECREST ROAD , PARCEL NO . 6 - 45 - 2 - 19 . 1 , ITHACA , N . Y . PERMISSION IS DENIED BY THE BUILDING INSPECTOR UNDER ARTICLE IV , SECTION 14 , OF THE TOWN OF ITHACA ZONING ORDINANCE . Chairman Hewett declared the Public Hearing in the above - noted matter duly opened at 8 : 10 p . m . , read aloud the Notice as published and as noted above , and referenced the Appeal Form as signed and submitted by Randall A . Hausner on May 5 , 1981 , said Appeal reading as follows : " . . . Having been denied permission to construct a garage within less than 10 feet from my property line at 149 Ridgecrest Road . . . It would be rather ® expensive to move the proposed garage to some other location on the lot , say behind the house . It would also increase the length of my driveway which I would rather not have to do since it is hard enough to shovel the snow now . It would also increase my cost and I cannot afford it now anyway - to increase the length of the driveway . Also if I had to . move the garage to a position out of line with the house I would effectively block my neighbor ' s view to the North . I would prefer not to do that . I would rather not move the garage to in front of my house since that would block my view of the road and also , again , block people ' s northern view of Ithaca . " Chairman Hewett noted the drawing attached to Mr . Hausner ' s application for building permit showing the lot configuration , the existing house , the proposed garage , and the driveway . Mr . and Mrs . Hausner were present . Mr . Cartee reported that the zoning designation for this property is R - 15 , however , Mrs . Hausner was told that it was R- 30 , thus he would comment that their being here is not all their fault . Mr . Hausner stated to the Board that they have planned on putting a garage on the south side of the property and to do this they thought three feet from the property line was correct and then they found out it should be ten feet , so this makes them seven feet short . Mr . Hausner stated that they applied for the variance of seven feet so that , from the edge of the garage to the south property line , it is three feet . ® Mr . Aron noted that the garage is proposed to be 20 feet wide and 4 feet from the existing house . Mr . Hausner stated that Zoning Board of Appeals 7 May 13 , 1981 that was correct . Mr . Aron asked Mr . Hausner if he could put the garage closer to the house . Mr . Hausner stated that he could not because there is a window and a chimney there . Mr . Cartee concurred , stating that that was not feasible . Mr . Hausner stated that he would also like to have a walk space between the house and the garage . Mr . Hausner pointed out that he would still need a variance even in that case and then , in addition , he would have to move the driveway over . Mr . Hausner stated that there were other possibilities such as moving the garage out into the back but he did not do that because he would have to lengthen the driveway plus shovel more snow in the winter . Mr . Hausner commented that they are kind of happy with the view and if they put the garage around in back it would not be in line with the house and would block the neighbor ' s view to the north . He pointed out that this way it blocks no one and is exactly in line with the house . Chairman Hewett asked if any of the neighbors were present . Mr . Hausner stated that Lawrence and Gertrude Gray who live at 155 Ridgecrest Road on the south side have been kind enough to come here tonight . Mr . King asked how far south their house is , to which Mr . Hausner replied , maybe 70 ' or 801 . Both Mr . and Mrs . Gray stated to the Board that they had no objection at all to the requested variance for the garage , adding that they would be glad to have Mr . Hausner do it his way . Chairman Hewett asked ® if there were anyone else who wished to speak . No one spoke . Mr . Hausner presented for the record the following letter signed by both Richard Perenyi and Elizabeth Perenyi , 148 Ridgecrest Rd . , dated May 10 , 1981 , addressed to the Town of Ithaca Zoning Board of Appeals , as follows : " This is in regard to your Notice of Public Hearing - Wednesday , May 13 , 1981 , in specific the appeal of Randall and Judith Hausner , 149 Ridgecrest Rd . , from the decision of the Building Inspector denying permit for the construction of a garage . 11We live across the Road from the Hausners , and would like to state that we have absolutely no objection to this addition , in fact we think that the garage will improve the property in every way . " Mr . King stated that it would appear that the Hausners have 37 feet between the north wall of their house and the north lot line . Mr . Hausner stated that that was correct . Mr . King stated that that would hold a 20 - foot garage and allow Mr . Hausner to come within the zoning ordinance and the setback requirements . Mr . King asked why Mr . Hausner did not site the garage there . Mr . Hausner stated that the main reason is the expense -of the driveways - take out one and put in one - and a row of trees that separate the houses there , the elimination of which would detract from the neighborhood . Mr . King asked where the trees are . Mr . Hausner stated that they sit about 20 feet south of that lot line , closer to his house than that house - - about 17 feet from the north line . Mr . King wondered if it would be any problem to purchase another piece from his neighbor . Mr . Hausner stated that he could not afford it , however , he has not talked with them about such a proposal . Zoning Board of Appeals 8 May 13 , 1981 ® Mr . Aron stated that Mr . Hausner had talked about his driveway and asked if it were blacktopped . Mr . Hausner stated that it was not . Mr . Aron wondered why there was a problem then , suggesting that Mr . Hausner just flatten it and put in another one . Mr . Hausner stated that the driveway is made of gravel and crusher - run , Mr . Hausner referred to a flooding problem he has experienced and stated that if the driveway were in . another place he would lower his barrier against this problem . Mrs . Reuning asked if the proposed garage were a pre - fabricated garage . Mr . Hausner replied that it was not really , adding that a contractor is going to build a concrete foundation . Mr . Hausner noted another problem with abutting the garage to the house which could be fire . He also explained the need for deeper footers . Mr . Aron stated that it seems that Mr . Hausner would like the Board to help him along to save his expenditures . Mr . Hausner stated that that was not really the case , but he would agree somewhat . Mr . Cartee stated that he had no comments . Mr . King stated that Mr . Hausner is asking for a 70 % variation of the zoning ordinance , i . e . , 7 ' out of 10 ' of the requirement . Mr . King stated that the fact that the owner to the south does not object , in fact speaks in favor of the variance , leads him to say - - who is going to be hurt except the owners to the south who ® could not build so close themselves . Mr . King expressed his reluctance to a grant of variance , commenting that the ordinance had some purpose with respect to side yards . Mr . King stated that he would be inclined not to proceed without at least a viewing of the site . The members indicated their agreement . Mr . Hausner stated that he was told three feet was the side yard requirement and on that basis he made a call and took out a loan and made a downpayment on this garage . MOTION by Mr . Henry Aron , seconded by Mr . Edward Austen : WHEREAS , at Public Hearing with notice given in the matter of the Hausner Appeal for seven - foot south side yard variance to permit the construction of a 20 - foot garage three feet from the south side lot line at 149 Ridgecrest Road , Town ' of Ithaca Tax Parcel No . 6 - 45 - 2 - 19 . 1 , no one appeared in opposition nor were any objections heard with respect to such variance and , in fact , the neighbors to the south , Lawrence and Gertrude Gray , 155 Ridgecrest Road , personally appeared in support of such variance and the neighbors directly across the street from the property under discussion , Richard and Elizabeth Perenyi , 148 Ridgecrest Road , submitted a letter also in support of such variance , NOW , THEREFORE , BE IT RESOLVED , that the Town of Ithaca Zoning Board of Appeals grant and hereby does grant an area variance of seven feet from the 10 - foot side yard requirement of Section 14 of the Town of Ithaca Zoning Ordinance to permit the construction of a 20 - foot garage not less than three feet from Zoning Board of Appeals 9 May 13 , 1981 ® the south side lot line at 149 Ridgecrest Road , Town of Ithaca Tax Parcel No . 6 - 45 - 2 - 19 . 1 , as requested by Randall and Judith Hausner , Appellants . There being no further discussion , the Chair called for a vote . Aye - Hewett , Austen , Reuning , King , Aron . Nay - None . The MOTION was declared to be carried unanimously . Chairman Hewett declared the matter of the Hausner Appeal duly closed at 8 : 29 p . m . APPEAL OF FRED J . BRAINARD , JR . , APPELLANT , FROM THE DECISION OF THE BUILDING . INSPECTOR DENYING PERMISSION TO CONDUCT A HOME OCCUPATION , UPHOLSTERY AND CANVASS WORK , NO EMPLOYEES , IN THE GARAGE ARE EXCEEDING 200 SQ . FT . , AT 291 CULVER ROAD , PARCEL NO . 6 - 32 - 1 - 3 . 1 ; ITHACA , N . Y . PERMISSION IS DENIED BY THE BUILDING INSPECTOR UNDER ARTICLE V , SECTION 19 , PARAGRAPH 21 OF THE TOWN OF ITHACA ZONING ORDINANCE . Chairman Hewett declared the Public Hearing in the above - noted matter duly opened at 8 : 30 p . m . , read aloud the ® Notice as published and as noted above , and referenced Mr . Brainard ' s Appeal Form as signed and submitted by Fred Brainard on May 4 , 1981 , reading as follows : " I am a retired firefighter and need an income . This will be a one man operation ( no other employees ) in upholstery and canvass work . The garage is 20 ' x 24 ' where I would like to set up business . I do not intend to change the character of the area in any way . There will be no outside storage or display . JMy retirement was due to a heart condition . " Mr . Brainard appeared before the Board and stated that his problem was that he wanted to have his home occupation in an area which is over 200 sq . ft , in size ; the 20 ' x 24 ' garage makes it over the limitation . Mr . Brainard stated that his reason for this request is that he was forced to retire from the Fire Department and he has to have something to do . He stated that he planned on this before he knew he was sick , adding that he was forced to move up there also . Mr . Brainard commented that there were a number of problems involved such that he was just getting around to thinking about doing this job . He stated that he would have no employees and there would be no stack of old sofas in the back because he will get rid of the stuff he has . Mr . Brainard stated that his home occupation should not create any disturbance . Mr . Brainard stated that he did not get letters from his neighbors but he did ask the Herrmanns who live at 289 Culver Road who said it was alright by them . Zoning Board of Appeals 10 May 13 , 1981 ® Chairman Hewett asked if there were anyone present who wished to speak to the matter of the Brainard Appeal . No one spoke . Mr . Aron noted that this business would be Mr . Brainard ' s income , other than Social Security , and asked Mr . Brainard what he would do if it goes real big . Mr . Brainard stated that , in that case , he would go downtown . Mr . Brainard stated that it was not his intent to hire anyone at all , adding that if he has to have it expanded , he will move it . Mr . Aron noted that Mr . Brainard had no intent to enlarge the garage . Mr . Brainard agreed . Chairman Hewett inquired about Mr . Brainard ' s health , to which Mr . Brainard responded that he was doing pretty well , considering . Mr . King asked Mr . Brainard to describe the nature of his operation . Mr . Brainard stated that it involved the recovering of chairs and sofas and the rebuilding and / or repairing of tents . Mr . King asked if any machinery were involved . Mr . Brainard stated that two sewing machines are involved - one Singer and one Adler . Mr . King wondered how much noise was involved , if any . Mr . Brainard responded , practically none , adding that the work could not be heard outside of the door . Mr . Brainard noted that the garage is - 25 feet from the street . Mr . King cited the home occupations allowed under the ordinance [ Section 19 , paragraph _ ® 2 ] . MOTION by Mr . Henry Aron , seconded by Mrs . Joan Reuning : RESOLVED , that the Town of Ithaca Zoning Board of Appeals grant and hereby does grant a special permit to Fred J . Brainard , individually and for his use only , to permit Mr . Brainard to conduct a home occupation consisting of upholstering and canvass work in an existing 480 square foot garage located on his property at 291 Culver Road , Town of Ithaca Tax Parcel No . 6 - 32 - 1 - 3 . 1 , subject to there being no outside employees in conjunction with said use . There being no further discussion , the Chair called for a vote . Aye - Hewett , Austen , Reuning , King , Aron . Nay - None . The MOTION was declared to be carried unanimously . Chairman Hewett declared the Public Hearing in the matter of the Brainard Appeal duly closed at 8 : 44 p . m . ADJOURNED APPEAL ( FROM APRIL 8 , 1981 ) 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 6 ' 6 " CONTRARY TO THE GRANTING OF A VARIANCE FOR A SIDE YARD OF 111 , AT Zoning Board of Appeals 11 May 13 , 1981 ® 1061 TAUGHANNOCK BLVD . , PARCEL NO , 6 - 21 - 2 - 13 , ITHACA , N . Y . PERMISSION IS DENIED BY THE BUILDING INSPECTOR UNDER ARTICLE IV , SECTION 14 , 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 8 : 45 p . m . , as adjourned from April 8 , 1981 , 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 May 5 , 1981 , and May 8 , 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 . The Secretary informed the Board of a telephone call from Mr . Arno Finkeldey received 5 / 8 / 81 , as follows : " Arno Finkeldey cannot attend the Zoning Board of Appeals Meeting ( May 13th ) . His Aunt died and he has to go to North Carolina to help his Mother clean up the Estate Matter and dispose of the house , etc . He just can ' t be there . If the Board goes ahead and makes a decision on the matter , there is nothing he can do ' about it . On the other hand , if they would be inclined to adjourn it to another date , he would be most appreciative . " ® Mr . Aron stated that he wished to read a statement which he had dictated to the Secretary at the time he thought he would not be able to attend this meeting , as follows : " Upon physically viewing the property at 1061 Taughannock Blvd . , Tax Parcel No . 6 - 21 - 2 - 13 , being the matter of David and Sylvia Mintz applying for another area variance , and since they are in violation of the area variance granted in 1980 , I would like you to know that I vote for denial of the requested variance on the grounds that he violated the requirements of said variance granted in April of 1980 . Furthermore , I would recommend to hand this matter over to the Town Attorney for consideration of legal action and to do what he deems necessary . " Armand L . Adams , Esq . , Attorney for Mrs . Libby Leonard , stated that they were heard at the last meeting ( April 8 , 1981 ) , and that he wished to state again that they oppose the granting of the requested variance . Peter Littman , Esq . , Attorney for Mrs . Karen O ' Regan , stated that the letter that was just read ( by Aron ) touches on the matter very well . He stated that the applicant had already been granted a variance and is now asking for another one . He stated that there is no question that the Appeal should be denied . Mr . Littman stated that to present the Board with a fait accompli is prejudicial to the Board and a slap in the face to the Board . ® Chairman Hewett asked if there were anyone else who wished to speak for or against this request for variance . No one spoke from the public . Zoning Board of Appeals 12 May 13 , 1981 ® Mr . Austen inquired about the past history of this matter . Mr . Cartee stated that the property in question was transferred in October 1980 and there was a Survey prepared by T . G . Miller PC dated September 29 , 1980 , such transfer being with this new knowledge of the lot line . He stated that it would appear that these people purchased the property knowing the lot line was where it was . Mr . King stated that he thought the matter should be referred to the Town Attorney and let him make a decision as to appropriate action , noting that the Mintzes may be fined for violation . MOTION by Mr . Henry Aron , seconded by Mr . Edward King : RESOLVED , that the Zoning Board of Appeals deny and hereby does deny the request for an area variance by David and Sylvia Mintz on the property known as 1061 Taughannock Blvd . , Town of Ithaca Tax Parcel No . 6 - 21 - 2 - 13 , such variance having been requested to permit a single - family dwelling having been constructed with a side yard of 616 " contrary to the granting of a variance for said side yard of 111 ; and FURTHER RESOLVED , that the Zoning Board of Appeals notify and hereby does notify the Town Attorney of said Town of Ithaca ® to look into the matter and consider what he deems necessary to do . There being no further discussion , the Chair called for a vote . Aye - Hewett , Austen , Reuning , King , Aron . Nay - None . The MOTION was declared to be carried unanimously . Chairman Hewett declared the Adjourned Public Hearing in the matter of the Appeal of David and Sylvia Mintz duly closed at 9 : 10 P . M . APPEAL OF LAWRENCE AND TRINNA IACOVELLI , APPELLANTS , FROM THE DECISION OF THE BUILDING INSPECTOR DENYING BUILDING PERMIT FOR A STRUCTURE CONTAINING FOUR DWELLING UNITS AT 162 - 164 KENDALL AVENUE , PARCEL NO . 6 - 54 - 5 - 19 ( FIVE ( 5 ) BUILDING LOTS ) , ITHACA , N . Y . PERMISSION IS DENIED BY THE BUILDING INSPECTOR UNDER ARTICLE III , SECTION 41 OF THE TOWN OF ITHACA ZONING ORDINANCE . Chairman Hewett declared the Public Hearing in the above - noted matter duly opened at 9 : 11 p . m . , read aloud the Notice as published and as noted above , and referenced ( 1 ) the ® Appeal Form as signed and submitted by Lawrence Iacovelli under date of May 5 , 1981 , together with ( 2 ) attachment prepared by Edward A . Mazza , Esq . , both reading as follows : Zoning Board of Appeals 13 May 13 , 1981 i . " . . . Appellants plan to dedicate the five ( 5 ) building lots contained in the parcels mentioned above as a condition for obtaining a variance to build a structure to contain four dwelling units . Three of the building lots do not front on a street that is in operation , but front on Maryland Ave . which is not built . Since the Town of Ithaca has no plans to build Maryland Ave . , it would be a hardship to deny the appellants the use of these lots in the manner requested . " 2 . " Re . Appeal of . . . for a structure containing four ( 4 ) dwelling units at 162 - 164 Kendall Avenue , Tax Parcel No . 6 - 54 - 5 - 19 , 32 & 33 . 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 each of the five building lots mentioned above . Thus , under the zoning law , the appellants could construct five 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 dwellings to a total of fifteen ( 15 ) unrelated persons . The present application is to allow the appellants to put four units in one building on these lots 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 fifteen . ( 15 ) . The only difference is the form in which this is accomplished . It is important to note that the lots in question are very near a zone that is zoned light industrial . Also , the appellants ' home is located across the street from these lots . Also , three of these building lots do not front on Kendall Avenue but instead front on Maryland Avenue . Maryland Avenue is a street shown on the maps but has not been constructed and upon information and belief , the Town of Ithaca has no intention of constructing this road . Permitting the appellants to proceed with this proposal would help to relieve any need for the construction of Maryland Avenue and would help to relieve the appellants of the hardship which they now face with landlocked building lots . In the 1967 New York Court of Appeals case of Fulling v . Palumbo ( 21 NY 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 welfare would be harmed by the granting of the variance . Accordingly , 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 Zoning Board of Appeals 14 May 13 , 1981 ® 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 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 vs . Smith , 33 A . D . 2d 835 , aff ' d 26 N . Y . 2d 1005 , Third Department ; Humble Oil & Refining Co . vs . Dekdedrum , 38 A . D . 2d 46 . Two questions arise from the rule stated in Fulling v . Palumbo : 1 . What constitutes significant economic injury ? and 2 . What must the municipality prove to satisfy the requirement of demonstrating that enforcement of the zoning law is related to public health , safety or welfare ? % The first question that arises is , ' What constitutes significant 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 appellant is not allowed a variance , it would cost him many times more to build single - family unit homes . As indicated above , this would allow him to rent his property out to no more than 3 unrelated persons in each unit . If the variance is allowed , the cost to the appellants would be much less to build a four unit apartment house that would accommodate up to 8 unrelated persons . In the present appeal the situation is similar . Assuming that Maryland Avenue were ever constructed , the appellants could build five single - family unit homes on these parcels which would allow him to rent out the homes to families or three unrelated in each unit or a total of 15 unrelated persons . To do this would cost appellants many times more than the current proposal . To add to the hardship , the appellants cannot use the three back lots since there is no road constructed to them at the present time . Thus , the only use that can be made of these lots would be two single - family unit homes to be rented out to no more than six ( 6 ) unrelated persons . This would cost the appellants more than the proposed structure with less of a return to them . 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 enforcement 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 Zoning Board of Appeals 15 May 13 , 1981 preamble indicates the purposes for which the zoning ordinances were enacted . The preamble reads as follows : For the purpose of promoting the health , safety , morals or the general welfare of the community , and to lessen 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 undue concentration of population , to facilitate the adequate provision of transportation , water , sewerage, schools , parks and other public requirements , under and pursuant to the Laws of the State of New York , the size of buildings and other structures , the percentage of lot 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 hereinafter provided . It is clear from this preamble , that the purpose set forth therein will not be hindered by the granting of the variance requested . 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 these lots than are anticipated by the zoning ordinance . 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 these lots rather than separate and close together buildings on these lots . 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 these lots . 4 . ' to prevent the overcrowding of land ' - it is clear that putting one building on these lots would prevent the overcrowding of land . 5 . ' to avoid undue 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 . these lots than are allowed under the zoning laws . 6 . ' to facilitate the adequate provision 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 living on these lots 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 is proposed to be built does not violate the zoning laws except as to use . 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 these lots with the variance Zoning Board of Appeals 16 May 13 , 1981 ® granted than the zoning ordinance anticipates . 11 . ' the location and use of buildings , structures , and land for trade , industry , residence or other purposes ' - the location of the building is not an issue in this matter and the use of the building is for residential purposes , 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 variance should be granted . The appellants have shown serious economic hardship and it seems clear that the municipality cannot meet its burden of proof . Thus , the appellants respectfully request that the variance be granted . In connection with this request , the appellants would like to draw the attention of the Board of Zoning Appeals to their decision and findings of fact thereunder from their meeting of November 10 , 1978 , a copy of which is attached hereto . [ Attachment ] - - FINDINGS OF FACT : 1 . The Appeal of Lawrence and Trinna Iacovelli was presented to and denied by the Zoning Board of Appeals on January 10 , 1978 , with the indication that said matter more properly belonged before the Town Board as a zoning amendment . The matter was referred to and heard by the Planning Board on September 19 , 1978 , and thereupon referred to the Town Board by said Planning Board , and heard by said Town Board on October 10 , 1978 , each such Board indicating the said matter should be referred back to the Zoning Board of Appeals as a matter for decision by said Zoning Board of Appeals . 2 . The matter of the re -hearing of the Appeal of Lawrence and Trinna Iacovelli is properly before the Zoning Board of Appeals , it having been unanimously resolved by said Board on October 19 , 1978 , to re - hear said matter . 3 . The Appellants reside next door to the subject property at 165 Kendall Avenue . It is , therefore , the judgment of this Board that they are more likely to maintain the subject property in good order than if they were to reside some distance away . 4 . The members of the Zoning Board of Appeals have visited the premises , toured the interior and exterior of the building , and find the premises to be neat and orderly . 5 . The Appellants have constructed the building upon the property so that there is extra land available to the north by northwest of said building which may be used for open space in connection with the dwellings contained therein . 6 . The existing neighborhood is comprised of unimproved lots , single family homes , and two , or more , family homes , as f of lows ® In doing a statistical analysis of the type of present uses of lots in the area based not only on the Map , Exhibit 3 , and Exhibit 1 , but also on the testimony of Mr . Robert Zoning Board of Appeals 17 May 13 , 1981 ® Bonnell , Assistant to the Town Engineer , that Tax Parcels 6 - 54 - 5 - 3 and 4 are devoted to single family uses and information from the Town of Ithaca Tax Roll as verified by Mr . Bonnell that Tax Parcel 54 - 5 - 5 contains a four - dwelling unit structure as a non - conforming use , and , assuming all those facts , the Board finds that prior to the development of the subject property it appears that there were about 41 lots ( 50 ' ± ) undeveloped on Kendall Avenue , incorporating information from the Tax Roll indicating that Tax Parcels 54 - 4 - 15 through 19 are undeveloped ; that there were about 18 Parcels ( 501 ± wide ) with single family dwellings , and 25 Parcels ( 501 ± wide ) apparently used by two or more families ; for a total of 84 parcels . The percentages are approximately as follows : 48 . 8 % unimproved ( vacant ) ; 21 . 4 % single family , 29 . 7 % two , or more , families . If this Board should allow the three subject lots to be used as a single lot for a multi - family dwelling as applied for , the result would be : 43 lots unimproved ; 18 lots improved with single family dwellings ; and 26 lots improved with two , or more , . family dwellings ; for a total of 87 parcels . The percentages would be as follows : 49 . 4 % unimproved ; 20 . 6 % single family ; 29 . 8 % two , or more , families . Accordingly , the Board would judge that the allowance of a variance would not substantially alter the character of the uses on Kendall Avenue from what already exists . 7 . The Zoning Board of Appeals considered Section 281 of Town Law ( Cluster ) in its deliberations , and , although obviously not applicable , did consider the principles behind said law . 8 . The construction of more than two dwelling units in the Appellants ' building will not , in the opinion of this Board , materially affect traffic on Kendall Avenue , since the Appellants could build separate dwelling units in compliance with the Zoning Ordinance on each of the three subject lots comprising the subject parcel , resulting in more dwelling units than the Appellants are requesting . 9 . However , the Appellants , in violation of the Zoning Ordinance and with full knowledge of the requirements of the Zoning Ordinance , designed and built the structure at 167 Kendall Avenue to accommodate up to four dwelling units . 10 . But , the Appellants are willing to , and . . have themselves offered to , devote and dedicate the entire 150 ' x 120 ' plot to this existing building . 11 . The Town Engineer has verified that all yard requirements have been met for a two - family house on a 75 ' lot in an R - 9 zone . ( See also Exhibit 2 . ) 12 . A considerable number of the neighboring property owners attended two public hearings of this Board and objected to the Appellants ' being granted a variance for four dwelling units in the subject structure . They indicated that they feared overcrowding in the neighborhood and a devaluation of their property . 13 . The Board finds that the granting of a variance to allow for more than two dwelling units , but less than four , on a 150 ' Zoning Board of Appeals 18 May 13 , 1981 parcel , would not result in overcrowding of the neighborhood nor in any significant devaluation of property . 14 . The Board feels that the granting of a variance to allow for four dwelling units in the subject structure would set a precedent whereby those under similar circumstances would then petition for an equal number of units in each structure resulting in a general overcrowding and danger to the health and welfare of the community . 15 . Based on information and belief that Kendall Avenue , the street upon which the subject premises is located , is slated for further development by the Town of Ithaca through a proposed completion of said street to meet with Pennsylvania Avenue , the Board feels that the construction of additional homes can be expected . 16 . The Appellants have provided gravelled parking spaces , off - street , to the southwest of the building , much in the character of other such lots on this street . The Board finds the parking facilities sufficient and compatible . 17 . The Appellants have not demonstrated that they suffer any peculiar economic injury that is not general to property owners in the Town by reason of general inflation , rising taxes , and other rising costs . The Board finds no unique circumstances with which to justify a finding of specific or peculiar economic injury in this case . 18 . However , the Board does find that strict observance of the ® Zoning Ordinance would impose unnecessary hardship upon the Appellants , since in this case they have offered to tie in with this structure extra land ( another one and one - half old lots ) upon which they could have lawfully erected another two - family dwelling without special approval . If that is done , the area will be even less intensively developed than it could have been under the Ordinance , and the amenities of the area will have been preserved . The Board can find no overall detriment to the Town plan in permitting a concentration of dwelling units within this single building as long as . the three old subdivision lots are effectively made part of this particular parcel and so preserved . 19 . The Board finds that such unified parcel will have ample access and egress over the existing street and that it is likely to improve in the near future when Kendall Avenue is extended easterly to meet with Pennsylvania Avenue . 20 . The Board finds that the subject parcel already has public water and sewer available . 21 . The Board can see no way in which permitting the existing structure to be used as a multi - family dwelling will adversely affect the health , safety , morals and general welfare of the community , so long as it complies with multiple residence codes and certain reasonable conditions are observed . 22 . The Board believes that substantial justice will be done by permitting the Appellants to utilize the present structure ® as a multi - family dwelling so long as the properties are tied together and reasonable safeguards are imposed and observed . " Zoning Board of Appeals 19 May 13 , 1981 ® Attorney Mazza stated to the Board that in addition to the letter he submitted , he would like to show the members some photographs , most of which are of the existing structure on the opposite side of the street . Mr . Mazza stated that the building here proposed is substantially the same , except that the front of this building will now be the back because of the lay of the land , but in most respects , it will be substantially the same . The photographs were passed among the Board members . Mr . Mazza stated that he was showing these pictures to give the Board an idea of what the proposed structure will look like , what a nice structure exists and what a nice structure will exist . Mr . Mazza commented that it is a well -built piece of property . Mr . Mazza now presented another set of pictures explaining their purpose . He noted that these photographs show the lot upon which Mr . Iacovelli proposes to build from various different angles . Mr . Mazza also pointed out those photographs showing Mr . Iacovelli ' s mother ' s house and Mr . Iacovelli ' s own personal house . Chairman Hewett asked Mr . Iacovelli if his mother lived alone , to which Mr . Iacovelli replied , yes . Mr . Mazza pointed out to the Board that the next house down just past Mr . Iacovelli ' s own house is the one that exists as approved by the Board in 1978 . Mr . Iacovelli stated that the property involved in this proposal is 220 ' x 236 ' and his proposal also is to tie this all in as one lot for one building permit instead of three or four different pieces . He commented that that leaves lots of free space and would make it look a lot better up there . Mr . Mazza referred to the proposed site plan and stated that Mr . Iacovelli had suggested perhaps moving the parking and side yard a little . Mr . Mazza stated that they would move it any way the Board feels more appropriate , noting again that they have five building lots and they want to tie it all up as one building lot dedicated to this structure thus leaving no building lots upon which Mr . Iacovelli could build in the future . He described the grassed area which would be kept mowed and the planting of trees . Mr . Mazza commented that obviously Maryland Avenue has not been built , having been on the map since 1895 , and so Mr . Iacovelli cannot use these lots . Mr . Mazza noted that Mr . Iacovelli has two building lots on Kendall Avenue , adding that the proposed zoning ordinance would allow four unrelated persons in two homes which would mean eight unrelated persons on two lots . Mr . Mazza stated that the present request is for eight unrelated persons on five lots - - two bedrooms in each unit . Mr . _ Mazza described more open space , more air space , more adequate parking , no increased load on sewer or . water , notingthat this use is less than anticipated by the ordinance , and added that the ® variance would allow for a quality structure in one place rather than a couple of places . Mr . Mazza described the hardship as being his not having access to the three lots on " Maryland " . Zoning Board of Appeals 20 May 13 , 1981 Mr . Mazza also commented that this proposal would relieve the pressure on the area with the neighbors opposed to opening up Kendall Avenue . Mr . King stated that the dedication of the three lots in the 1978 case was to be accomplished by some sort of recordable easement or covenant to the Town which would clearly indicate to anyone buying in the future - some innocent buyer who might wish to purchase it - . that that land was dedicated to that apartment building . Mr . King stated that it was his recollection that no such document was ever received or recorded . Mr . Mazza stated that it was his understanding that the Town Attorney was going to draw one up and give it to him , however , he never received it . Mr . King gave Mr . Mazza a copy which was a part of the November 10 , 1978 minutes . Chairman Hewett asked if there were anyone present who wished to speak to the matter of the Iacovelli Appeal . Mr . George Kugler , 101 PineView Terrace , spoke from the floor and stated that there are 18 people in the PineView Terrace , Hickory Place , Juniper Drive , area consistently speaking against spot zoning . Mr . Kugler expressed his concern about erosion of the Zoning Ordinance . He commented that Pennsylvania and Kendall Avenues ' housing are appendages to nearby Ithaca ® College . Mr . Kugler stated that the residents of his ® neighborhood are not even slightly interested in seeing adjacent tracts eroding into multiple housing , noting that in the area of Pennsylvania and Kendall adjoining Juniper there exists student rentals . Mr . Kugler stated that the residents are concerned about the neighborhood . He described noise and motorbikes and snowmobiles and general disruption and an apparent lack of law enforcement . Mr . Kugler stated that he was aware that the places being built by the Iacovellis are nice but he was very concerned about this highest use on Kendall Avenue and with Pennsylvania and Kendall Avenues becoming a multiple zoning area . Mr . Aron stated that he , too , personally lives in a neighborhood that is rural and residential , but as to those bikes and noises , he thought it entirely up to the neighbors and the departments of enforcement to see that such disturbances are rectified . Mr . Aron stated that he has had to do that because there have been bothersome noises and dogs in his neighborhood which have disturbed its quiet nature . Mr . Aron suggested that Mr . Kugler and his neighbors look into the matter more seriously rather than complaining to the Board of Appeals which has no powers of enforcement in such matters . Mr . Aron commented that he agreed with Mr . Kugler that the houses which Mr . Iacovelli constructs are well built . Mr . Mazza stated that , first of all , Mr . Kugler ' s complaint ® has to do with students , adding that it is apparently his assumption that Mr . Iacovelli is proposing to build this structure for students . Mr . Mazza stated , in this case , that is tv Zoning Board of Appeals 21 May 13 , 1981 not necessarily so . Mr . Mazza pointed out , on the other hand , students could live in other structures that he could build , and also pointed out that Mr . Iacovelli and his mother live right across the street . Mr . Mazza asked Mr . Cartee if he had heard of any complaints with respect to the structure Mr . Iacovelli built up there in 1978 . Mr . Cartee stated that he has had no complaints , adding that it is a well - kept piece of property which is attractive to the neighborhood . Mr . King inquired as to the occupancy of that building . Mr . Iacovelli stated that there are six . people occupying 167 Kendall Avenue - - three units , two bedrooms each . Mr . Iacovelli reiterated that there are six people there , and added that they are students . Mr . Iacovelli stated that he tells them that this is a residential neighborhood , he meets with their parents and tells them this is a neighborhood . Mr . Iacovelli stated that they have very strict leases , adding that there are no pets and no motorcycles down on their end of the street . Mr . King asked where the closest building is in relation to the site under discussion . Mr . Iacovelli described the site° of his neighbor to the southeast and stated that he would be willing to move the placement of the house more in the center of the two lots which face Kendall Avenue . Mr . King commented to Mr . Iacovelli that he has a large stake in maintaining the amenities ® of the neighborhood , noting the residences of his mother and brother . Mr . Cartee stated that he would respectfully ask the Board to consider allowing the Town Engineer ' s office and his ( Cartee ' s ) office , if they should so desire to delegate such authority , . to delineate the location of the house on the property in order to achieve the most appropriate areas for parking , setback distance from the street line , and parking to the west boundary . He suggested that a letter to that effect from the Board might be considered . Mr . Cartee added the comment that , relative to wet weather conditions , there is a stream that needs to be looked into in conjunction with the house location . He referred also to parking in the rear and / or parking on each side , and consideration of Mr . Iacovelli perhaps moving the house to the west . Mr . King stated that he would certainly agree , adding that that kind of expertise and information requires input from the Town Engineer , Mr . Cartee stated that he would request that the Board , should they consider this variance positively , set an occupancy limit . Mr . Mazza stated that the appellant is requesting two unrelated persons in each unit . Mr . King stated that it would be his recommendation , personally , to get input from the Town ® Officers and then pass on the whole package . Mr . Cartee suggested that the Board might wish to consider a motion similar to that pertaining to the 167 Kendall Avenue property and giving 1 Zoning Board of Appeals 22 May 13 , 1981 the Town Engineer final say for house placement as to parking , yards , etc . MOTION by Mr . Henry Aron , seconded by Mrs . Joan Reuning : RESOLVED , that the Town of Ithaca Zoning Board of Appeals find and hereby does find the. . situation with respect to the present Appeal of Lawrence and Trinna Iacovelli pertaining to premises known as 162 - 164 Kendall Avenue , Town of Ithaca Tax Parcel No . 6 - 54 - 5 - 19 , to be essentially the same now as detailed in its Findings of Fact made November 10 , 1978 pertaining to 167 Kendall Avenue property of said Iacovelli on the occasion of considering an essentially identical building across the street and , on that basis , adopt and hereby does adopt such Findings with respect to said present Appeal , and FURTHER RESOLVED , that said Board of Appeals grant and hereby does grant a variance from the requirements of Article III , Section 4 , of the Town of Ithaca Zoning Ordinance to permit the issuance of a building permit for a four -dwelling-unit structure on Town of Ithaca Tax Parcel No . 6 - 54 - 5 - 19 ( 32 , 33 ) , comprised of Ithaca Land Company old lots and deed reference number 137 , 138 , 139 , 150 , and 151 , known as 162 - 164 Kendall Avenue , to house not more than eight ( 8 ) unrelated persons or not more than four ( 4 ) families , and ® FURTHER RESOLVED , that said Board of Appeals authorize and hereby does authorize the Town Engineer and the Building Inspector to set the site of the building and parking area ( s ) , and FURTHER RESOLVED , that the approvals hereinabove granted are subject to and contingent upon the receipt of a duly signed and recorded restrictive covenant on Lots # 206 , # 207 , and # 208 ( Ithaca Land Company Tract 1895 designation ) , known as 167 Kendall Avenue , and , to the receipt of a restrictive covenant on Lots # 137 , # 138 , # 139 , # 150 , and # 151 ( Ithaca Land Company Tract 1895 designation ) , known as 162 - 164 Kendall Avenue , the subject property , Town of Ithaca Tax Parcel No . 6 - 54 - 5 - 19 ( 32 , 33 ) , duly signed and recorded . There being no further discussion , the Chair called for a vote . Aye - Hewett , Austen , Reuning , King , Aron . Nay - None . The MOTION was declared to be carried unanimously . Chairman Hewett declared the matter of the Iacovelli Appeal duly closed at 9 : 43 p . m . ® ADJOURNMENT e Zoning Board of Appeals 23 May 13 , 1981 Upon Motion , Chairman Hewett declared the May 13 , 1981 meeting of the Town of Ithaca Zoning Board of Appeals duly adjourned at 9 : 45 p . m . Respectfully submitted , Nancy M . Fuller , Secretary , Town of Ithaca Zoning Board of Appeals . Jack D . Hewett , Chairman