HomeMy WebLinkAboutZBA Minutes 1994-11-09 F1 NAI
TOWN OF ITHACA ZONING BOARD OF APPEALS
• NOTICE OF PUBLIC HEARINGS
WEDNESDAY , NOVEMBER 9 , 1994
7 . 00 P . M .
By direction of the Chairman of the Zoning Board of Appeals NOTICE IS HEREBY GIVEN
that Public Hearings will be held by the Zoning Board of Appeals of the Town of Ithaca
on Wednesday , November 9 , 1994 , in Town Hall , 126 East Seneca Street , ( FIRST Floor , REAR
Entrance , WEST Side ) , Ithaca , N . Y . , COMMENCING AT 7 : 00 P . M . , on the following matters :
Appeal of Robert Fiske , Appellant , requesting a variance from the requirements of
Article IV , Section 14 of the Town of Ithaca Zoning Ordinance , to be permitted to
maintain a carport with a side yard building setback of 2 + feet ( 15 foot side yard
setback required ) at 204 Roat Street , Town of Ithaca Tax Parcel No . 71 - 6 - 7 , Residence
District R- 15 .
Appeal of Douglas H . Armstrong , Appellant , requesting a time - limited variance from the
requirements of Article IV , Section 11 of the Town of Ithaca Zoning Ordinance , to be
permitted to maintain the occupancy of a single- family residence by five unrelated
persons ( maximum three unrelated persons allowed ) at 975 Taughannock Boulevard , Town of
Ithaca Tax Parcel No . 21 - 2 - 32 , Residence District R- 15 . Said building currently has a
non- code compliant second dwelling unit located in the
structure ' s basement .
• Appeal of Janice A . Cornish , Appellant , requesting authorization from the Zoning Board
of Appeals under Article XII , Section 54 of the Town of Ithaca Zoning Ordinance , to be
permitted to add a second dwelling unit to the second floor of a residential building
on a non- conforming parcel of land at 509 Five Mile Drive , Town of Ithaca Tax Parcel No .
31 - 2 - 32 , Residence District R- 15 . Said parcel is non-conforming since it contains , in
addition to said residential building , a second residential building containing two
dwelling units . The Town of Ithaca Zoning Ordinance allows for only one residential
building with up to two dwelling units on a single parcel of land .
Said Zoning Board of Appeals will at said time , 7 : 00 p . m . , and said place , hear all
persons in support of such matters or objections thereto . Persons may appear by agent
or in person .
Andrew S . Frost
Building Inspector/ Zoning Enforcement
Officer
273- 1783
Dated : November 1 , 1994
Publish : November 4 , 1994
•
FINAL
TOWN OF ITHACA FILED
ZONING BOARD OF APPEALS TOWN OF ITHACA
WEDNESDAY , NOVEMBER 9 , 1994
Date
• an� �n ��DC�
The following appeals were heard by the Board on November 9 , 1994 : Clera
APPEAL of Robert Fiske , Appellant , requesting a variance from the requirements of
Article IV , Section 14 of the Town of Ithaca Zoning Ordinance , to be permitted to
maintain a carport with a side yard building setback of 2 + feet ( 15 foot side yard
setback required ) at 204 Roat Street , Town of Ithaca Tax Parcel No . 71 - 6 - 7 , Residence
District R- 15 .
GRANTED .
APPEAL of Douglas H . Armstrong , Appellant , requesting a time - limited variance from the
requirements of Article IV , Section 11 of the Town of Ithaca Zoning Ordinance , to be
permitted to maintain the occupancy of a single - family residence by five unrelated
persons ( maximum three unrelated persons allowed ) at 975 Taughannock Boulevard , Town of
Ithaca Tax Parcel No . 21 - 2 - 32 , Residence District R- 15 . Said building currently has a
non- code compliant second dwelling until located in the structure ' s basement .
POSTPONED .
APPEAL Janice A . Cornish , Appellant , requesting authorization from the Zoning Board of
Appeals under Article XII , Section 54 of the Town of Ithaca Zoning Ordinance , to be
permitted to add a second dwelling unit to the second floor of a residential building
on a non-conforming parcel of land at 509 Five Mile Drive , Town of Ithaca Tax Parcel No .
31 - 2 - 32 , Residence District R- 15 . Said parcel is non- conforming since it contains , in
• addition to said residential building , a second residential building containing two
dwelling units . The Town of Ithaca Zoning Ordinance allows for only one residential
building with up to two dwelling units on a single parcel of land .
SPECIAL APPROVAL GRANTED .
FILED 1
TOWN OF ITHACA TOWN OFITHAACAA
:1111195
ZONING BOARD OF APPEALS Dat _
• WEDNESDAY , NOVEMBER 9 , 1994o HaLA
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Clerk�[1 n H.
PRESENT : Chairman Edward Austen , Edward King , Harry Ellsworth , Pete Scala , David Stotz ,
Town Attorney John C . Barney , Zoning Enforcement Officer/ Building Inspector
Andrew Frost ,
OTHERS : Janice Cornish , Gary Provost , Lucia Armstrong , Douglas Armstrong , Allan Bloom ,
Andrew Bohutinsky , Steve Lucente , Pat Lucente , M . Rocco & Max Lucente , Robert
Hines .
Chairman Austen called the meeting to order at 7 : 13 PM and stated that all posting ,
publication , and notification of the public hearings had been completed and the same
were in order .
The first appeal to be heard by the Board was as follows :
APPEAL of Robert Fiske , Appellant , requesting a variance from the requirements of
Article IV , Section 14 of the Town of Ithaca Zoning Ordinance , to be permitted to
maintain a carport with a side yard building setback of 2 ± feet ( 15 foot side yard
setback required ) at 204 Roat Street , Town of Ithaca Tax Parcel No . 71-6-7 ,
Residence District R- 15 .
Attorney Robert Hines , who is representing Mr . Fiske , stated that Mr . Fiske and his
wife have made a contract for the sale of their property at 204 Roat Street which will
close in approximately a month for the title . In the process of getting the paperwork
• ready to close the transaction , there was a survey prepared . The original survey by
Howard Schlieder showed the side yard setback of 2 ' ± . The original frame dwelling and
garage has been on the property for a number of years annotating the zoning ordinance
of the Town of Ithaca . The carport ( or what was labeled the carport ) was constructed
starting around 1967 . At that time , the exterior posts were located in a shed from the
original garage roof over to the edge of the area , was fixed . In speaking with Mr .
Fiske ( and Attorney Hines said he has known the Fiske ' s for some time ) , Mr . Fiske
indicated he believed that this was an accessory building and he built 3 ' within the
property line . It also wasn ' t clear that a permit would have been required at the time
because of the dollar amount . In any event , Mr . Fiske didn ' t get a permit but he did
build it as close as he could estimate 3 ' from the property line . Howard Schlieder was
sent back to the property to verify that it was , in fact , 3 ' and Attorney Hines said he
had seen the stake and it is , in fact , 3 ' so they have an amended Map A that ' s more
accurate .
Over the few years since 1967 , the carport was flashed out and a wall along the
eastern line was put in with windows and a wall along the back was put in but the front
remains open . One detail that isn ' t shown on the map is a row of spruce trees that ' s
along the easterly line of the Fiske property which effectively obscures the view of
this particular structure from the roadway and from the neighbor to the east .
As you look from the roadway , you ' ll see what looks like an open shed in which
material is stored along with lawn mowers and various other things . The issue is ,
whether under Section 267b of the Town Law , the convenience or inconvenience of the
neighbors balances or weighs in favor of the Fiske ' s . Although not a large structure ,
• this is substantial enough that it ' s difficult to remove and contract of sale was made
in place and the buyer expects to buy it . Therefore , they ' re now faced with a problem .
They really can ' t tear it down without recasting an agreement which was made some time
ago in good faith . The neighbors have reviewed this ( and Attorney Hines gave Mr . Frost
a statement from the neighbor on the east and the neighbor across the street ) . Attorney
Town of Ithaca 2
Zoning Board of Appeals
November 9 , 1994
Hines noted there was a map included which shows the location of these neighbors and Mr .
Frost confirmed that each of the Board members do have a copy of that . Attorney Hines
• said he did not have Section 267b memorized , but the burdens to the Fiske Is for this
self- imposed problem are significant . They have a contract for sale and the buyer
expects to buy this particular structure . The structure is not highly visible to anyone
around and it serves a very useful purpose for the property . Even though the structure
was built without the benefit of clergy , there was an effort made at the time to comply
with what Mr . Fiske believed to be the setback requirement . Attorney Hines restated
that he isn ' t sure what the law was in 1967 and doesn ' t know whether or not a permit
would have been required ; but , in any event , he didn ' t get one .
Attorney Hines said the profits to the property are significant , the inconvenience
and difficulties associated with having to remove the structure are substantial because
they would jeopardize a contract that they ' ve made . He believes the burdens on the
neighboring properties are slight ( he said he couldn ' t speak for the neighbors , but they
did have Mr . Fiske circulate the area and one of the neighbors is present if he cares
to speak on the subject ) .
Mr . Frost said he wanted to add that the notice in parentheses says 15 foot side
yard setback required and it should have read 10 foot . Mr . Frost continued that the
ordinance is not exactly very clear because , under Section 13 , they do use the word
" garage " under the paragraph of Section 13 where they discuss accessory buildings . When
you get into Section 14 , however , they state that a 10 ' side yard setback can be
maintained with either an attached or detached garage . Mr . Frost said he thought ,
therefore , there could be some confusion in reading the ordinance that way . Mr . Frost
said he also noted that the request is for 2 ± feet because he did not have the revised
survey until today and he would rather do it on the more conservative side because it
• is a public notice in the newspaper .
Attorney Hines said it may be 2 - 1 / 2 ' but they believe it to be 3 ' and he wasn ' t
. sure if it makes too much difference . His point is that the applicant really did try
to comply with what he believed to be the requirements . Mr . Frost then reconfirmed that
he did advertise it for a 2 ' setback .
Mr . King asked if they had said this was built in 1967 and Attorney Hines said the
shed was built then . The house and garage were built some time prior to that predating
the zoning ordinance . Mr . King said certainly , a building permit would have been
required even for an accessory building and then asked Mr . Frost if that was correct .
Mr . Frost said , most likely , he does have the 1967 ordinance upstairs . The Town did not
adopt building code until 1960 ; therefore , if the house was built prior to 1960 ( which
it may have been ) , it wouldn ' t have needed a building permit . Attorney Hines said he
thought the present zoning ordinance calls for $ 2 , 500 or $ 3 , 000 and , if you exceed that ,
you have to get a permit . Attorney Hines said he is trying to ameliorate the impact of
a self- imposed hardship ; it was done in good faith believing it was appropriate .
Chairman Austen noted that a letter dated November 7 , 1994 had been received from
three of the neighbors stating they had no objections to the granting of this variance :
the Venables of 111 Blackstone , Anthony & Edna Krizek of 202 Roat Street , and Janice
Johndrew of 205 Roat Street . A letter dated November 2 , 1994 from the Tompkins County
Department of Planning , James Hanson , Jr . , Commissioner of Planning was also read for
the record . Chairman Austen then opened the public hearing . With no one present to
speak , the public hearing was closed .
• Mr . King stated that the sketch submitted with the appeal indicates that it ' s
approximately 13 ' to 14 ' between the east side of the Fiske carport and the west side
of the Krizek garage on the property to the east , that being the nearest building
apparently . Mr . King then asked if that was indeed the nearest building and Attorney
Town of Ithaca 3
Zoning Board of Appeals
November 9 , 1994
Hines said that is the nearest building but possibly Mr . Fiske could tell more about its
• distance . Mr . Fiske said , from his line , the distance to the Krizek ' s garage would be
approximately 12 ' or 131 . Mr . King noted that the sketch shows 11 ' from the line and
13 ' to 14 ' between the buildings . Mr . Fiske said yes , that is his sketch and 11 ' and
3 ' equals 141 , so 14 ' is correct . Mr . King asked if their carport is used for storage
of a car at any time and Mr . Fiske said yes , the reason he made it that large is so that
he could angle a trailer back in there . He cut the corner of the garage off , and he
didn ' t want to cut the big spruce tree down . Mr . King again asked him whether he does
keep a motor vehicle in there and Mr . Fiske said yes , on occasion .
Mr . Stotz asked if this house is now under contract for sale and Mr . Fiske said yes .
Mr . Stotz said it was mentioned before that they would have to renegotiate this contract
in some way . For instance , what would happen if the carport were removed with the
potential buyers? Mr . Fiske replied that he didn ' t think it would make any great issue .
Attorney Hines said he could say that they have not broached the subject with the
attorneys for the buyer , but he suspected it would not pass unnoticed . Mr . Scala said
you ' re looking at a building that ' s been there over 25 years ( he didn ' t think a carport
should be called a building ) and it ' s really not visible at all from the street . The
big , heavy spruce trees that are there pretty much blanket the scene and it looks like
it ' s used mostly for storage the way it is now . The trailer is sitting off on the left
so , obviously at one time , the trailer was to fit into the carport . For all intents and
purposes , Mr . Scala said you ' re looking at what has been part of the garage for a long
time . He said his understanding is that there was no objection on anyone ' s part and it
would never have come up if it weren ' t for the survey due to the sale .
Chairman Austen noted that Section 13 allows an accessory building to be not less
than 3 ' from the lot line . He said this is probably more carport than accessory
• building , however . Mr . Frost said it certainly could be used as a carport . Mr . Scala
said he had just one other comment . If they ever tried to empty the carport out to make
room for that trailer , some other part of that lot is going to be pretty well filled
with ladders , tables , etc . He would say , if anything , it ' s been an accessory building
in the sense of random storage for a long time and then asked how long the trailer had
been out there . Mrs . Fiske said it had been there just about one year .
Mr . King asked if anyone saw any problem with a car being in there and noted that
the ordinance calls for a 10 ' setback for a garage which would mean , with the carport
and garage next to each other , you ' d have a 20 ' separation between them and there is
presently about a 14 ' separation . Mr . Scala asked if it had a door and Mr . Fiske said
no . Mr . Frost said he supposed one could view it that , if there was no carport and
someone just had a driveway with a car parked there , the fact of having a car parked
that close to the property line would be legal . Mr . King said that ' s true and the
ordinance does , in some instances , permit construction of a single garage across the lot
line so he would judge that the ordinance doesn ' t see any particular harm in having two
cars next to each other . Mr . Scala asked if he understood it correctly that , if it were
used as an accessory building the way it ' s built now , that would be permissible but , if
used as a second garage , that would require special approval . Attorney Barney said , if
used as a second garage , that would require a variance . Chairman Austen added , with the
exception that another garage could be built across the property line and both neighbors
could have one that crosses the lot . Attorney Barney said if they wanted to latch on
and put a carport on the other side , you probably could make it legal that way .
Mr . Scala asked if the carport was being sold as an accessory building or as a
• second garage and Attorney Hines said he wasn ' t privy to the conversation with the
buyer . They ' re buying the structures as they exist ; what they think they are , he
doesn ' t know . Attorney Hines asked Mr . Fiske if he had any conversations with the buyer
regarding this and Mr . Fiske replied that he wasn ' t aware of any .
Town of Ithaca 4
Zoning Board of Appeals
November 9 , 1994
Mr . Frost noted , since this is a setback variance , the law does not require the
• environmental assessment form .
Chairman Austen then asked that a motion be made on the appeal .
LOTION
By Mr . Edward King , seconded by Mr . Pete Scala .
RESOLVED , that the Board grant the applicant , Robert Fiske ( Robert Hines , Attorney ) ,
a variance from the requirements of Article IV , Section 14 of the Town of Ithaca
Zoning Ordinance , to be permitted to maintain a carport accessory building on the
east side of his property within 2 ' to 3 ' of where it stands which is within 2 to
3 ' of the east property line , at 204 Roat Street , Town of Ithaca Tax Parcel No . 71 -
6 - 7 , Residence District R- 15 , with the following findings :
1 . Noting that the structure has existed in its present location for some 27 years .
2 . The structure is not easily visible from the street and is apparently well
constructed .
3 . The structure apparently does not bother the neighbors on either side or across
the street or those most affected by it , all three such neighbors having written
to this Board that they have no objection to the granting of a variance for such
continuation .
4 . Upon appearing that this singular carport would not have an undesirable change
• to the character of the neighborhood or be a detriment to those properties .
5 . That the benefit to the applicant cannot be achieved by any other method than
a variance .
6 . That it would be a substantial imposition on both the appellant and their
prospective buyer to have the structure removed at this stage .
7 . That the variance would not appear to have any adverse impact or effect on the
physical or environmental conditions in the neighborhood .
8 . Even though the difficulty was self- created , it ' s understandable that they
considered the building to be an accessory building which could be built within
3 ' of the lot line .
With no further discussion , Chairman Austen asked for a vote on the motion which
resulted as follows :
AYES - Austen , King , Ellsworth , Scala , Stotz .
NAYS - None .
The motion was carried unanimously .
The second case to be heard by the Board was as follows :
• Appeal of Douglas H . Armstrong , Appellant , requesting a time- limited variance from
the requirements of Article IV , Section it of the Town of Ithaca Zoning Ordinance ,
to be permitted to maintain the occupancy of a single- family residence by five
unrelated persons ( maximum three unrelated persons allowed ) at 975 Taughannock
Boulevard , Town of Ithaca Tax Parcel No . 21-2 -32 , Residence District R- 15 . Said
building currently has a non-code compliant second dwelling unit located in the
structure ' s basement .
Town of Ithaca 5
Zoning Board of Appeals
November 9 , 1994
Mr . King pointed out that he had examined the survey map in relation to the
• ownerships listed on the assessment rolls and it seems the petitioner ' s parcel is the
southerly ( bottom ) one labeled Parcel #2 on the drawing . Next north of them is indeed
owned by Garrison , as indicated by Parcel # 1 on the survey . North of Garrison is a
parcel owned by Patricia Lucente ( or at least was owned by her in the last roll he had
access to ) , the Lucente parcel being Town of Ithaca Tax Parcel No . 21 - 2 - 30 ; Garrison
being No . 21 - 2 - 31 ; and the petitioner , Douglas Armstrong , being No . 21 - 2 - 32 . Several
lots south of that are still owned by the Walter and Joyce Wiggins family .
Douglas and Lucia Armstrong stepped to the microphone . Upon being asked by Chairman
Austen how long they had owned the property , Mrs . Armstrong replied since 1986 . She
said they had included in the packet of information with the appeal , details on when
they had bought the property . They bought it , assuming it was a two- family dwelling .
This was with their lawyer handling the case and it went through as a two- family
dwelling . Chairman Austen noted that a copy of the purchase offer had been included in
the packet . Mr . King added that was the petitioner ' s purchase in 1986 in which the
property was noted as a two - family structure at 975 Taughannock Boulevard . Mrs .
Armstrong said , as they indicated in their cover letter with the appeal , they ' ve had the
property on the market for several years . There have been over four realtors who tried
to sell it ( they have their publicity ) as a two- family dwelling and no one has ever
questioned that .
Mr . King asked if they had received the letter dated October 5 , 1994 from Mr . Frost ,
the Zoning Enforcement Officer , in which he advises that the second apartment in the
basement does not have the required 7 ' 6 " of floor to ceiling height . Mrs . Armstrong
said yes , he went over that and several other violations . They had said in the cover
letter that they do not intend to put additional money into the property to make those
• repairs , but they would like to get through this rental year because it ' s very important
in terms of the rental income . Mr . King asked if " getting through this year" meant
through May 31 , 1995 and Mrs . Armstrong said they asked in the letter if they could have
a time limit variance until May 31 , 1995 . As can be seen in the lease itself , they have
a second summer lease ( Mrs . Armstrong said she had brought a copy of that ) . At the time
they signed the lease with the students , they asked if they could stay so that they
could study for the bar . These are five ( 5 ) third- year law students . They signed the
lease with them with the understanding , if the property was sold , they would not honor
that lease . There are two reasons they didn ' t bring that lease to the Zoning Board
originally : 1 ) Mr . Armstrong had spoken to Mr . Frost about it and said , if the Board
would be kind enough to give them a time variance , it would only be for the school year .
2 ) They had a contract on the sale of the house .
Since that time , the buyers have decided they do not want to buy the house . They
know it would be a real time of stress for students who are preparing for the bar to
have to leave at that point . It would also be a great lack of income for the
appellants . Therefore , Mrs . Armstrong said they are asking that the Board consider this
extension . Mr . Frost said , as a matter of clarification , he didn ' t specifically
remember the conversation other than he would have advised them that it would be
unlikely in his mind ( and his experience with the Board ) if they would consider two
leases .
Mr . King said part of the non-conformity here is that , number 1 , they have a non-
conforming lot . It doesn ' t conform to zoning requirements for a building lot .
According to the terms of the ordinance , you can have only a single - family dwelling on
a non-conforming lot . Mrs . Armstrong said they intend to honor that in the future , but
is they would not be able to replace these tenants at this point ( in the middle of
November ) . It would also be very difficult for students to move in the middle of a
semester . Mr . King said Mr . Frost had also noted that the basement apartment does not
Town of Ithaca 6
Zoning Board of Appeals
November 9 , 1994
maintain a 3 / 4 fire separation between the main dwelling units and asked if that was
• correct . Mr . Armstrong asked if he meant the first floor and Mr . Frost said correct ,
the first floor being the main floor. Mr . King said it also contains a bedroom without
adequate emergency egress and asked how the petitioner would address that . They
wouldn ' t want people in the bedroom who can ' t get out in case of a fire . Mr . Armstrong
said they are having estimates taken for the fire prevention material and for the
enlargement of the window in that bedroom , but these items can ' t be done before
Christmas vacation when the students vacate the premises . However , they are trying to
get estimates .
Mr . King asked if the student in the bedroom without adequate emergency egress was
aware of the fact that he doesn ' t have it and Mr . Frost said , as a clarification , they
have a window but the code requires that any bedroom have a window that has a glazed
area or glass area of 4 square feet with a minimum openable dimension of 18 " . Whether
the 18 " is wide or 18 " high , one is either going out on the road or you ' re going out
sideways through a window . Mrs . Armstrong said Mr . Frost had also mentioned at the time
( it doesn ' t answer their window question ) , their double sliding doors from one bedroom
and there is also an additional front door . Mr . Frost said , theoretically , if there was
a fire and you were in the back bedroom , the only way out ( presuming you couldn ' t go out
the door of the bedroom ) is through the window and that ' s what the code is intending to
regulate .
Mr . King asked if that bedroom window was smaller than 18 " then and Mr . Frost said
it ' s smaller than the 4 square foot area . When you open the window , the minimum
dimension , whether it ' s 18 " high or 18 " wide , it has to be 18 " . The other portion of
that is , when multiplied against that 18 " , it would give you 4 square feet . Mr . King
asked what kind of window they have and Mrs . Armstrong said it ' s an Anderson . Mr . Frost
said it ' s a casement window but doesn ' t meet the 4 square foot area . Mr . King asked how
much space for egress there is . . . if there aren ' t 18 " , how many inches are there ? Mr .
Scala asked Mr . Armstrong if he could get out and Mr . Armstrong said no . Mr . Frost said
the Board , by State law , can ' t vary the building code so , if they don ' t have the 4
square foot , they don ' t meet the code .
Mr . Scala asked how long they have had tenants in the house and Mrs . Armstrong said ,
since 1986 when it was purchased . Mr . Scala asked how many tenants they had and if the
number was five and Mrs . Armstrong said , usually , five . Mr . Armstrong said this was
because there were five bedrooms .' Mr . Scala asked if there were tenants in there when
they bought the house and Mrs . Armstrong said yes , there were , both upstairs and
downstairs . Mr . King asked if they lived in it as two separate apartments and Mrs .
Armstrong said it has no interconnection but it happens to be a group that comes
together and they have preferred that due to heating bills , etc . There is no inner
stairway , it ' s like two separate apartments . Mr . King then asked how many live upstairs
and how many down and Mrs . Armstrong said there are three bedrooms upstairs and two
bedrooms downstairs and each has a separate kitchen , separate bath . Mr . Scala asked ,
when she said each , did she mean three and two and Mrs . Armstrong said she meant each
floor .
Mr . Stotz asked if they had plans then at Christmas time to provide some sort of
fire safety and asked what exactly were their plans for this . Mr . Armstrong said , at
this point , they ' re simply trying to get an estimate on what it would cost them to bring
the basement into compliance with the fire material between the floors . They ' re not
going to be able to do anything with the 7 ' 4 " height but will look at the fire -proofing
• and the window problem . Mr . King noted they had said they ' re seeking estimates and
they ' ve had 5- 6 weeks since Mr . Frost wrote to them . He wondered if they hadn ' t gotten
any estimates in that period of time . Mr . Armstrong said they ' ve had two people out
there , and , so far , no estimates .
Town of Ithaca 7
Zoning Board of Appeals
November 9 , 1994
Mr . Frost said the other portion of that is the height issue . In terms of trying
• to make this a legal apartment , it would require a state variance which is more involved
and he thought they were thinking they didn ' t want to pursue that . Mr . King asked how
deficient in height it was and Mrs . Armstrong said she thought 6 " ( or 7 ' 1 " to 7 ' 6 " ) and
Mr . Armstrong disagreed , saying no . Mr . Frost said , in his memory , it was something
like 7 ' . If it ' s not 7 ' 6 " and is anything less , then it doesn ' t comply . The height ,
in part , is in the code to provide the space for smoke to rise . People normally drop
and crawl anyhow , but that ' s what Albany had told him years ago was the requirement for
the height . This was so tall people don ' t bump their heads , to allow smoke to rise and
give people time to crawl out of the space , etc . Mr . Scala wondered how this came up
and if there was a complaint and Mrs . Armstrong replied , yes . Mr . Ellsworth added yes ,
there was a complaint from Mr . Lucente . Mr . Frost said he didn ' t think that it actually
stated in his letter who complained and Mrs . Armstrong said it ' s in their cover memo and
this was , of course , after living side -by- side for several years .
Mr . Scala asked if their intent is to get a variance that would allow the students
to remain where they are up to or through the summer . Mrs . Armstrong replied that the
critical date is May 31 , 1995 and they would be out at least $ 7 , 600 if they are not able
to honor that lease . If they can go until July 31 , 1995 , that ' s an additional $ 4 , 500 .
Mr . Scala asked if they had expressed a specific time for the time- limited variance and
Mrs . Armstrong said , in the memo the Board had gotten originally , they put only May 31 ,
1995 because of the reasons she had expressed of not giving them the summer lease
before .
Mr . Scala asked , being aware of what ' s needed to be done for safety , on what items
had they made an attempt to get estimates . . . on the window or fire wall , or both? Mr .
Armstrong said on the fire wall and on taking out the back wall in the basement to
• prevent water problems that reoccurred . Mr . Scala asked if they were saying , even if
they did have the estimates , they wouldn ' t do the repair till mid or end of December .
Mr . Armstrong said it would be during Christmas vacation when the students are gone and
they have access to the building . Mr . Scala asked when that starts and Mr . Armstrong
replied , December 18th , and the law school is out most of January so they do have the
physical time to get the repairs done . Mr . Scala asked then if they are looking at
getting the repair done during the time period when the students are out so that , when
they come back in January or whatever , they would at least have improved conditions then
in terms of safety . He said there are really two separate requirements . One is to meet
the fire codes but they can ' t meet the elevation because that would require a state
variance and , secondly , to allow the students to remain until end of May .
Chairman Austen asked if the rent they have listed is for the total units or per
renter and Mrs . Armstrong said the rent they see there is $ 1 , 250 which is for all five .
There ' s a separate rent that shows on the summer lease because it ' s a different rate in
the summer .
Mr . Stotz then said he had a question for Attorney Barney . If the Town approves a
situation like this where there ' s a non-conformance in terms of fire safety , in what
position does that put the Town in terms of liability? Attorney Barney answered that
it puts them in an exposed position , they have insurance but it ' s an interesting
situation . If the Town does nothing and is unaware , there is no exposure to speak of .
Once we become aware of a fire safety circumstance , it ' s incumbent upon us to start
taking reasonable actions to enforce it . If the reasonable actions are to notify the
Armstrong ' s , for example , that there ' s a fire safety violation and continued activity
• occurs such as a fairly speedy and immediate application to the State of New York for
a waiver or a variance , Attorney Barney said he thought the Town would be ok . If we
were to notify them of a fire safety violation and then just drop the matter , the Town
would be at some risk . This Board doesn ' t have authority to grant a variance for
Town of Ithaca 8
Zoning Board of Appeals
November 9 , 1994
building code matters , only for zoning matters so Attorney Barney said he would assume
• that - - if the Board chose to grant the variance for the zoning matters - - it would not
be unreasonable for this Board to cover some of the life safety aspects of it in its
variance , one of which would certainly be a fairly rapid application for the waiver .
Second , he would suggest something ought to be done about that one window to make it an
appropriate method of egress . The fire proofing is another issue and the Board might
not need to get into it necessarily , but Attorney Barney said he would strongly urge
that they certainly make arrangements for someone to get out of a room if there ' s a
fire .
Mr . Frost said , interestingly , that could be addressed because , if this was a
single - family residence and the issue was temporarily allowing five unrelated people in
a single- family residence when three is permitted , then there would not be the required
fire separation . However , the presence of the two kitchens ( among other things ) make
this a two- family residence . If there was one kitchen , then you ' ve effectively made
this a single- family residence and , as well , mitigated the fire separation issue .
Mr . Scala said he took it that there are three people upstairs and two downstairs
and , if something weren ' t done immediately in terms of fire safety , they would have to
vacate the lower apartments ( Mr . Armstrong agreed ) . Mrs . Armstrong said she didn ' t
know , her attorney has said that two of them could not be forced to leave . Mr . Scala
clarified he was just saying , if there were no variance allowed , only three people could
live there . If there were no repairs done , the two downstairs would have to be vacated .
Attorney Barney said there would have to be reduced occupancy and Mr . Scala said yes ,
reduce the occupancy so they would only rent the upstairs . Mr . Scala then said that ' s
the option that exists now . . . they either conform and have three people upstairs or
they proceed with the repairs , assuming the Board allows the time variance . Next step
• . . . it would be converted into a two- family residence and Mr . Scala asked if that would
allow five people . Mr . Frost said what he ' s saying is that , other issues aside and if
it was a two- family residence , they would be allowed to have two unrelated people in
each unit so there would be a total of four and not five .
Mrs . Armstrong said , in the letter Mr . Frost had sent them , it said there could be
three unrelated persons and Mr . Frost said that was as a single - family residence . If
all the issues with the second unit were put aside and this was a legal two- family home ,
then you could have no more than two unrelated in each dwelling unit for a total of four
in the building . Mr . Scala said , in other words , they bought it as a two- family
residence . If it had been on the tax rolls as a two- family residence , then what they ' re
doing ( except for the fire problem ) would be ok . Mr . Frost said , presuming that it was
legally non-conforming , it would have been legal for five unrelated people in the two
units in 1986 . Mr . Scala said , over and above that is the requirement to have the
second apartment comply with the proper laws .
Attorney Barney said the grandfathering or the prior non- conforming use its tied to
is being a legal non- conforming use . If it was illegal and a non- conforming use ,
there ' s no grandfather rights that are obtained . Attorney Barney said he thought that ' s
what the situation was here because of the building code problems . There ' s not a legal
second unit there , so there ' s no way one could really claim that what was happening was
a legal use and to get any rights from it . Mr . Scala said , presumably , proceeding
properly back in 1987 when they bought it , they would have had the prior owner apply to
have the building a proper two- family residence . Mrs . Armstrong said this is where they
had hoped to be advised by their attorney . Mr . Scala said that would have been the
• proper procedure . Mr . Frost said , even if it was a two- family prior to the zoning
ordinance , it would be grandfathered in that way but the problem he ran into here is
that it ' s not assessed or there ' s nothing to recognize it as a two- family so it ' s kind
of hard to say well , it could have been there in ' 54 .
Town of Ithaca 9
Zoning Board of Appeals
November 9 , 1994
Chairman Austen opened up the public hearing and asked if anyone was present to
speak on this matter . Steve Lucente , residing at 981 Taughannock Boulevard , stepped to
• the microphone and stated he is one of the neighbors . He said he had a letter with him
at the meeting dated November 9 , 1994 from William Garrison of 979 Taughannock Boulevard
who had asked him to read it into the record ( he then proceeded to do so ) . Mr . King
requested that he submit the letter to the Board for record and Mr . Scala asked if the
letter also spoke for him and if that was why he was reading it . Mr . Lucente said ,
actually , he does agree with Mr . Garrison but he has some other concerns as well . There
are some real problems at the Armstrong property . They have had several parties which
have run all night . He has had the police down there three times in the last four
months . They have had obscene language which their children can hear , they ' ve had
drunken and vulgar behavior to which his entire family has been subjected , and he feels
it is not a very nice place to raise children . They have a garbage problem , especially
after parties . The students haven ' t been careful with their garbage . They had one
situation where they had twenty bags of garbage sitting in the middle of the parking lot
for over two weeks and he feels that constitutes a safety problem . Mr . King asked how
long ago that was and Mr . Lucente answered that it was in the beginning of September and
leaving garbage out allows wildlife to come in such as raccoons and skunks . There ' s the
possibility of some of these animals being infected with the rabies virus , and they
don ' t think it ' s safe or appropriate to have that type of situation to be exposed to as
well as the other neighbors being exposed to it .
There is also a parking problem . On several occasions , Mr . Lucente and his wife
have attempted to leave their property and go about their various business and they
haven ' t been able to get out because they ' ve been blocked in by the students . Mr .
Ellsworth asked if this was a common driveway and Mr . Lucente said yes and he is the
northern most property on the common driveway . Chairman Austen requested that Mr .
• Lucente show his parking area on the drawing and Mr . Lucente pointed out his parking
area , the Armstrong ' s parking area , and the location of another little turn around . He
said what has happened is that he ' s had cars come into the area which is actually on the
Garrison ' s land and block him in . Mr . King asked if that was his parking area shown as
an apron jetting north from the Garrison ' s and Mr . Lucente said that ' s correct .
Mr . Scala asked if the problems he was referring to were something which had been
going on for six or seven years or had it gotten worse in the last year and Mr . Lucente
responded that it had gotten worse in the last couple of years . There was an
altercation in the spring of 1993 where he notified the Armstrong ' s that the situation
had gotten completely out of control and , at that time , he informed them they were in
violation of the zoning . They said they would work with him , they worked through that
summer , and then they had the " tenants from hell " . . . another group of students who came
in this past winter and the situation just became worse . Then they had the summer
people come in - - the same type of thing , illegal occupancies all the way through - - and
now they have these undergraduate students who spend all their time partying and raising
hell . Mr . Scala asked if the five students who were there now are all in law school and
Mrs . Armstrong said they ' re all in third year law school . Mr . Armstrong added that
they ' re all graduate students , third year law students . Mrs . Armstrong said they
checked their references . Mr . Scala asked when they had started renting and Mrs .
Armstrong said , on August 21st , 1994 .
Mr . Armstrong said the garbage that Mr . Lucente mentions was when they arrived and
were moving in and this was the mess that was created by moving in . He agrees that it
was unfortunate that the bags were out there , but it was not a problem that has been
• going on for months . Mr . Lucente said he stood by his testimony , it has been going on
for months . The Armstrong ' s don ' t live there and there have been other occasions where
they had garbage piling up , and it was not as a result of moving but as a result of a
party with over 200 people . Mrs . Armstrong asked if Mr . Lucente had a date on that
Town of Ithaca 10
Zoning Board of Appeals
November 9 , 1994
party . Chairman Austen cautioned that statements should be made strictly to the Board
and there would be no cross talking between members of the public . Mr . Lucente then
said they have had a hell of a time , he ' s trying to raise a family and he ' s got this
animal house .
Chairman Austen said there is a lot separation but they are still bothered by noise ,
etc . Mr . Lucente said the lot that separates them is non-conforming and is only 50 ' .
Mr . Scala said , so they have a common driveway so that they see this everyday and Mr .
Lucente said that ' s correct . Again , they have had a hell of a time , have tried to work
with the Armstrong ' s but they ' re not there and the situation just gets worse . He re-
raised the issue in July and , as far as he ' s concerned , their contention that they
didn ' t know what the zoning was is misleading the Board . They knew what they ' ve been
paying taxes on , he informed them himself , and he just doesn ' t believe them . Mr . King
asked how long he has lived at his residence and Mr . Lucente responded that he moved
there in July , 1988 , Mr . King asked if theirs is a single - family dwelling and Mr .
Lucente said yes , that ' s correct . Mr . King asked if they had any tenants at all and Mr .
Lucente said no - - in fact , he was before this Board eighteen months ago to get a
variance for a garage and went through quite an ordeal to convince and assure the Board
that he wouldn ' t be adding a living unit to the upstairs of the garage . He has not
added that garage to date because of the assault in June , 1993 by the drunken students
from the Armstrong property and he ' s been waiting to see if the situation is going to
be resolved or if he ' s going to be forced out of his home because he cannot have his
children being subjected to this .
Mr . King asked if the Garrison house is a single family and Mr . Lucente said yes ,
and they are excellent neighbors and excellent landlords who are always in compliance .
• Mr . King asked if the Garrison ' s are landlords too and Mr . Lucente responded that they
rent their place out in the winter time . Mr . King asked how many people occupy their
place and was told two . Mr . King asked if it is just a single- dwelling unit building
and Mr . Lucente said yes . Mr . Stotz asked Mr . Lucente if he occupies his home or rents
and Mr . Lucente said he is the owner occupier .
Chairman Austen said , just for his information , is there anyplace where garbage is
put such as a shed . Mr . Lucente said no , the Armstrong ' s have not provided for garbage
nor for snow removal . Chairman Austen asked if everybody brings their garbage up to one
spot or do the garbage people pick it up individually and Mr . Lucente said they move
their garbage around . Sometimes they keep it at the top of their stairs , sometimes they
put it in the turn around out by their accessory building , sometimes they put it at the
top of the road , and sometimes he doesn ' t know what they do with it . He hasn ' t been
able to determine any pattern of garbage disposal . Chairman Austen asked if it was left
on Mr . Lucente ' s property and Mr . Lucente said , because of the fact that they have a
common driveway with a common driveway agreement and because all three lots are 45 ' or
50 ' in width , they ' re all over each other . It requires a tremendous amount of
cooperation and everyone has to work together . Attorney Barney asked where he keeps his
garbage and Mr . Lucente said he keeps his garbage in his house and takes it with him to
work . Attorney Barney asked if they have any pick-up and Mr . Lucente said no , he
doesn ' t do pick-up from Taughannock Boulevard . Attorney Barney asked if the Garrison ' s
have theirs picked up or do their tenants have theirs picked up and Mr . Lucente said he
has a garbage house at the top of the road and their pick-up is from there on Route 89 .
Mr . Scala said he has a question for the Armstrong ' s and asked if they have known
. this is supposed to be only a single - family residence for some time . Mrs . Armstrong
said no , they got a phone call from Mr . Frost ' s assistant and that was the first
notification . Mr . Lucente did not tell them . Mr . Armstrong said the first time they
knew was when Mr . Frost came out at the call of Mr . Lucente . Mr . Scala asked if they
had bought and operated it as a two- family residence and Mrs . Armstrong said strictly
Town of Ithaca 11
Zoning Board of Appeals
November 9 , 1994
as a two - family residence . Mr . Armstrong said , included in their packet , there is a
copy of the purchase offer . Mrs . Armstrong asked if they are permitted to respond to
any of these allegations and Chairman Austen said , when Mr . Lucente sits down , they can
then address only the Board with any statements they wish to make .
Chairman Austen asked Mr . Lucente if he had any additional comments . Mr . Lucente
said he wants to say that , whenever you have a high- density student business and you try
to put it next to a family , these types of things come up . It ' s his understanding
that ' s why there is zoning , to protect families from that type of situation . The
Armstrong ' s business depends on putting as many people into that property as possible
to get the high rents and to maximize the cash flow . They are investors and are trying
to make money , that ' s why they ' re there . The reason his wife and he are there is
because they ' re trying to raise their family and , hopefully , without being subjected to
the environment they ' ve been talking about the last 15 minutes . Mr . Lucente said they
respectfully ask that the Board reject the request for a variance and restore them to
where they should be . /
Attorney Barney asked Mr . Lucente , for the record and to clarify a little bit , if
his only occupation was not living in that particular house and if 'he didn ' t own other
properties as well . Mr . Lucente said that ' s correct . Attorney Barney asked if those
properties are rental properties and Mr . Lucente said that ' s correct . Attorney Barney
said , and they ' re not owner occupied but rental properties and Mr . Lucente said that ' s
correct . Attorney Barney said ; and , in some instances ( at least allegedly ) , in
violation of the zoning ordinance and the restrictive covenants that relate to those
houses . Mr . Lucente said no , he did not think that was correct . Attorney Barney asked
if Mr . Lucente hadn ' t received letters from the Town addressing that issue and
suggesting that they ' re in violation and Mr . Lucente said yes , he has . He wanted to
• point out that it ' s not his behavior that ' s on trial here , he isn ' t asking for any
privileges , he ' s just asking for his rights .
Attorney Barney said he thought it was relevant in this respect . He ' s singing a
song here about the difficulties these people are causing him but , on the other side of
town , we have exactly the same complaints about too much garbage , too many students , and
too many people parking there relating to houses that Mr . Lucente owns ( Attorney Barney
said he thought it ' s actually Mr . Lucente ' s wife who is the technical owner ) . We have
a problem and it ' s a problem for absentee landlords . Attorney Barney said he appreci-
ates Mr . Lucente ' s concern but he would also have to say that it ' s not completely as
clear cut one way here as he might perhaps want them to believe . Mr . Lucente said , if
he ' s found in violation of any of the Town ' s ordinances , he is prepared to take his
medicine and that ' s how it is . He has no problem with that and that ' s the name of the
game . He said he also expects those laws to protect him . He has made a tremendous
expenditure in his business over the years to comply with regulations and he ' s always
made his best effort to do so .
When asked by Mr . Scala how he found out that the Armstrong ' s wasn ' t a two- family
residence , Mr . Lucente said he was informed by the building department . Mr . Scala asked
how he got the information and Mr . Lucente said , when he called them to discuss it , they
informed him that the property was , assessed as a single family . Mr . Scala asked how
long ago that was and Mr . Lucente responded that it must have been some time in
September .
Mr . Frost said , as a zoning officer , you get involved with situations like this and
a violation of the law is a violation of the law no matter who admits it . But they also
try to approach things by keeping neighbors informed in some ways to try to keep
tensions and the disagreements down . Sometimes it ' s nothing more than a barking dog
that sets off a whole bunch of things . Their motive from their office is to try to
achieve compliance and keep people informed to how they ' re doing with correcting those
compliances and so forth , not to stir up the bee ' s nest .
Town of Ithaca 12
Zoning Board of Appeals
November 9 , 1994
Mr . Scala said it ' s his understanding that the current owners bought and operated
it as a two - family dwelling and what they ' ve run into is that what they actually own is
a one - family dwelling and that ' s the situation now . Mr . Frost said , in no way is he
justifying what ' s happened , but it ' s not an uncommon situation in Ithaca ; in part ,
because of the college community and rentals , basement apartments or second floor
apartments are easy to come by . Attorney Barney said also , in 1986 ( and he had heard
their aspersions to their lawyer ) it was not necessarily customary practice then for
lawyers to suggest to their clients that they go out and get basically Certificates of
Compliance or go to the town official ' s to determine whether , in fact , something that ' s
represented as a two- family house is actually a single- family dwelling . Mrs . Armstrong
said she knows the statute of limitations has come about and Attorney Barney said that ' s
probably more the practice now . He thinks that more lawyers are suggesting - if someone
comes in and they realize it ' s anything other than a single - family house - if someone
wants to rely on that , they should get some statement from the zoning officer .
Mr . Scala asked , when the tax bill goes to the owner , doesn ' t it say single - family
dwelling and Attorney Barney said he didn ' t think it says anything on the tax bill
itself . The assessment code would tell you what it is , but then you have to be a little
sophisticated to what that code means . Mr . Frost said also , in those years around 1986
or so , there was no public water and sewer so the water / sewer benefit they have is what
was called pennies . That ' s changed in more recent years when sewer became available on
the tax roll and Mr . Frost said , in some ways , he has displeasure sometimes with the
real estate people because they know very well what they ' re dealing with . They know
about the tax rolls , know what the house is , and so forth . They see these things happen
from the real estate agents .
Mr . Allan Bloom of 975 Taughannock Boulevard stated he lives with Andrew Bohutinsky
• who is also a tenant there . He was not asked to come to the meeting by the Armstrong ' s .
For the record , both of them are third year law students at Cornell and they live with
three other law students . He was originally told to write a statement to this Board
instead of actually coming , but he figured that the Board didn ' t need more stuff to read
and it would also be sort of an educational experience for him to come down here . As
such , he is a little bit surprised and offended by some of the things that Mr . Lucente
said . Most of the stuff he heard from the back of the room seemed to be blatant
untruths . As far as alot of the issues are concerned , the tenants who are currently
living between them and Mr . Lucente ( which he thinks would be 977 Taughannock Boulevard )
are also two law students who go to school with them in their third years . Mr . King
asked if that would be the Garrison ' s address and Mr . Bloom said yes , and he ' s sure they
would be more than happy to submit to this Board a letter basically denying almost
everything Mr . Lucente said .
In terms of vulgarities and things that are offensive to Mr . Lucente ' s family and
to the children , he has never heard that before this meeting . Mr . Bloom said he can ' t
really recall an occasion on which he was there and things like that happened . They
have had gatherings and have had other law students down at the lake . On two occasions ,
Mr . Lucente mentioned he had called the police . Mr . Bloom said he could only recall two
instances where police did actually come down and decided there was nothing to report .
He doubted they would find anything negative that the town police would have to say .
Mr . Bloom said , as far as they ' re concerned ( and they seem to be the pawns in this
game ) , they really do not want to be here and are really the ones that stand to lose the
most . They signed this lease in good faith . It ' s actually one lease , Mr . Bloom said ,
although it ' s actually been referred to alot as two leases in this hearing . As far as
he understands and from what he has learned of these so far in law school ; even though
it is two separate rentals , they all intended for this to be one lease conditioned on
whether or not the property was sold by next summer . It ' s a customary practice of law
Town of Ithaca 13
Zoning Board of Appeals
November 9 , 1994
students up on the hill to study for the bar here . He has spent a summer here before ,
• it ' s a very relaxing place , and there ' s a very high percentage of students who pass the
bar when they remain in Ithaca . So technically , their school year - - while they do end
their degree in May - - does not really end until July 25th when they go down to Albany
or New York City and sit for the bar exam .
That was really their intention when they met the Armstrong ' s and signed the lease
. . . that they would have a place to live during the year , to study for the bar , to take
the bar , and then to go about their way . They have always had good dealings with the
Armstrong ' s from the beginning . They , of course , had never known of any zoning problem
until they were given notice by this Board and by their landlords . Mr . Bloom said he
just wanted to reiterate some of the things that Mr . Lucente said . He was a little bit
ashamed to have to hear them because it does insult him a little bit . In terms of the
garbage problems Mr . Lucente had mentioned - - when they moved in ( which was basically
in the beginning of September ) , there were alot of things happening with the move . They
signed up with Collins Garbage Service which went out on a weekly pick-up schedule .
There were definitely times when there was some garbage sitting outside in the bin ; but ,
since then , they ' ve gotten in touch with Collins which is a private service . None of
them have really ever lived out of the city of Ithaca which is a slightly different
procedure .
Aside from the things which Mr . Lucente had said and which , as he had said before ,
could be completely rebuked by the tenant who lived between them and who will say they
have done nothing to insult or offend Mr . Lucente ' s family , it would really be a
tremendous hardship for them to have to move out before they ' re gearing up to study for
the bar exam . Mr . Bloom said he is sure Attorney Barney , and perhaps other members of
the Board , realize that it can be a pretty harrowing experience about two to two and
• one-half months . They are not looking forward to it too much because it is really a
heck of a lot of studying , but that is their situation . They entered this lease in good
faith and are just negotiating for a property they can keep in a serene environment
throughout the summer so that they can study for the bar exam .
Attorney Barney asked where they put their garbage now when it ' s picked up and Mr .
Bloom said their pick-up spot is on top of the driveway on the left towards Cass Park .
Attorney Barney said this was towards the city and Mr . Frost asked if Mr . Bloom would
point this out on the drawing he had . Mr . Bloom noted there is a little parking area
on top of Taughannock Boulevard where you come out of their collective driveway .
Attorney Barney said the driveway appears to be over on Mr . Lucente ' s property which is
over to the right . Mr . Bloom then said , as you ' re coming up the driveway and you ' re
getting onto Taughannock Boulevard , there ' s a space where the mailboxes are which is
pretty much adjacent to the driveway towards the city of Ithaca . There ' s a gravel area ,
a driveway , a little wooden shed , and a semi - circle that ' s graveled out and that ' s where
they were told to leave their garbage by Collins . They bring up their bags on Monday
night and Collins picks them up Tuesday morning and that ' s as far as nonrecycleables or
nonperishables go .
Mr . King said the area he was referring to is shown as a dotted line ( the little
semi -circle ) right by the road . Mr . King also said Mr . Bloom was pointing at the wrong
dotted line and showed him the correct location on the drawing of the semi-circle and
where it comes across both the Garrison and the Armstrong property . Mr . Bloom said they
have their garbage on their property down at the house until it ' s to be picked up and
then they carry it up the driveway on top . Mr . Stotz asked if they ever have that
• garbage down at the house stored outside the house . Mr . Bloom said , occasionally , they
will have bags that they will put out on the deck out in the back , right outside the
door . There is also a space underneath , as you walk out the side door of the house and
down the steps . There ' s a space underneath that little deck where they ' ll store cans
Town of Ithaca 14
Zoning Board of .Appeals
November 9 , 1994
or bottles until there ' s enough to take over to the recycling center . They don ' t store
garbage in the collective driveway or anywhere else but in their kitchen or right
• outside and ready to go in which case it ' s already sealed and it ' s either down on their
property or else it ' s up top . waiting for Collins to pick it up . Mr . Scala said he ' d
hate to think that this discussion was going to center on garbage and asked when it
would be appropriate to make some kind of a motion . Chairman Austen replied it would
be when he closed the public hearing . Mr . Scala said what he ' s asking for is to defer
the case and wondered when it ' s appropriate to do that . Attorney Barney said he thought
they should move on through the remainder of the public hearing .
Mr . Bloom said he just wanted to say one more thing about parking . Neither his car ,
nor anyone else ' s that belongs to people who are currently renting their house , has ever
blocked Mr . Lucente from getting out . When he was going out the driveway the other day
and was half way out , he remembers having to back down to let Mr . Lucente go by which
he assumes is customary procedure . Chairman Austen asked if each student has their own
car and Mr . Bloom said yes , they have five vehicles .
Attorney Barney asked how often they have social gatherings where other people come
in and Mr . Bloom said they ' ve had two this year where he guessed you ' d call it a social
gathering where there have been more than thirty people . Attorney Barney asked if less
than thirty was not a social gathering and Mr . Bloom said , aside from a friend or two
coming over during the week , they ' ve only had two occasions in which they ' ve actually
invited people to congregate and socialize . It ' s by no means a regular happening . Mr .
Ellsworth asked where their cars were and Mr . Bloom said they ' re either parked up top
or there ' s room for a good amount of cars where they are told is their side of the lot .
He was told the day he moved in , because parking seems to be one of the hot issues ,
exactly where they could park their cars . Mr . Frost noted that there is in the Board ' s
• packet of information , labeled Page 3 , a letter to the tenants from the Armstrong ' s
explaining the traffic and parking situation .
Mr . King asked Mr . Bloom where he lives in the house and was told he lives on the
upper floor of the top two floors . Mr . King asked if he is familiar with the basement
bedroom which has an undersized window in it . Mr . Bloom said he thinks he knows which
bedroom they ' re talking about and thought it was the inner of the two . There ' s one with
a sliding door to the outside . Mr . Frost said it was the one right behind that and Mr .
Bloom said he basically keeps more to the upper of the two floors and they maintain
their own telephone lines , etc .
Chairman Austen asked if there was anyone else present to speak on this appeal .
With no others present , the public hearing was closed .
ENVIRONMENTAL ASSESSMENT
Chairman Austen read Part III of the environmental assessment done by JoAnn Cornish ,
Planner II , and asked if there were any questions from the Board . Mr . Scala said , in
other words , what they ' re looking at here is the negative determination based on the
assumption that there are five people residing on the property . Chairman Austen noted
that it would only be temporary and Mr . Scala said " temporary" has no date on it here ,
so you don ' t know whether you ' re talking about a month or a year . Mr . Frost said it
would be his guess that , since the reviewer had the application , it was intended towards
the time limit asked by the appellant . Chairman Austen noted that this was until the
end of May , 1995 . Mr . Scala said there is also a second lease , and Mr . Frost said that
• second lease was handed out tonight and was not part of the reviewer ' s information . Mr .
Scala said , then " temporary" means until May . Mr . Frost clarified what he was saying
is that the reviewer of the environmental assessment form had that information for the
Town of Ithaca 15
Zoning Board of Appeals
November 9 , 1994
end of May and he ' s presuming that is the limit she was looking at . Mr . Scala asked
what happens at that point and Mr . King said all the reviewer is at ,
is , as long as
• this is just a short- term limit and a matter of a few months , it ' s not going to
adversely affect the community land use plans and goals .
MOTION
By Mr . Pete Scala , seconded by Mr . Harry Ellsworth .
RESOLVED , that the Board adopt the recommendations of JoAnn Cornish , Planner II
dated November 2 , 1994 and find a negative determination of environmental
significance for the appeal by Douglas H . Armstrong for the property at 975
Taughannock Boulevard , Town of Ithaca Tax Parcel No . 21 - 2 - 32 , Residence District R-
15 . Said building currently has a non-code compliant second dwelling unit located
in the structure ' s basement . The following condition was made a part of the
resolution :
1 . Conditioned upon a time limit of July 31 , 1995 .
Chairman Austen then asked if there was any further discussion and Mr . Stotz said ,
on Page 2 of the environmental assessment ( referring to C4 . , Paragraph 2 ) , . . . a use
variance cannot be granted where the unnecessary hardship complained of has been created
by the applicant . His question was if that prevents the Board from permitting a
variance if indeed this hardship was created by the applicant . Mr . Scala said this only
applies to the environmental significance , a motion has not been made on the variance
as of yet . Attorney Barney said , if he understands Mr . Scala ' s motion , he is moving a
negative declaration insofar as it relates to an extension only through the end of May
• as opposed to the end of July . Mr . Scala said he questions which is the practical
aspect of this or is a second motion needed to take care of the balance of the summer .
Attorney Barney said he thinks the application , as amended tonight , is clearly to remain
in its present status until July 31st . He said he isn ' t sure if there ' s any great
difference in the significance of the environment whether this motion is made through
July 31st .
With no further discussion , Chairman Austen asked for a vote on the motion which
resulted as follows :
AYES - Austen , Ellsworth , King , Scala , Stotz .
NAYS - None .
The motion was carried unanimously .
Chairman Austen noted for the record that a letter dated October 20 , 1994 had been
received from the Tompkins County Department of Planning by James Hanson , Jr . ,
Commissioner of Planning .
Mr . Scala said he would like to request that the Board delay decision on the
variance . The comments made by the neighbor , Mr . Lucente , have been stated quite
strongly and very seriously and obviously comes from an expert on the subject . He would
like to see presented the statements from the students . The Board has heard some of it
verbally and he would like to see it specifically as it addresses the parking , the
garbage , partying , etc . It doesn ' t have to be anything elaborate but he would like to
• see it specific . If Mr . Lucente has anything to say specifically , it might be good to
see a statement from him ( obviously , he may not agree ) . Mr . Scala said he thought they
should also ask the Armstrong ' s to get something from the tenants next door . He asked
if it was correct to say that the owner doesn ' t live there and Mr . Armstrong said that ' s
correct . Mr . Scala said then there are two other law students next door , so there ' s a
total of seven students signing two statements .
Town of Ithaca 16
Zoning Board of Appeals
November 9 , 1994
Mr . Frost said , how about the neighbor on the other side which should be the Wiggins
• property? Mr . Scala agreed they should also get Mr . Wiggins to sign or write a
statement and asked if he lives there . Mr . Armstrong said he lives four cottages away ,
but he owns four contiguous properties . Mr . Scala asked who rents the other properties
and Mr . Armstrong said he uses them as a fringe benefit for the cook at La Tourelle .
Mr . Scala said , one way or another , the Armstrong ' s could also get that neighbor ' s
statement as to its significance relative to their management of the property . They
might also indicate clearly what they intend to do and by when which means they ' ll have
a quotation on whatever it takes to satisfy the fire laws . Mr . Scala said he would like
to see this down pat because the Armstrong ' s had inherited a bag of worms here and the
Board couldn ' t clear that up but could only move it to the next step which is to declare
it a two- family dwelling . However , the Armstrong ' s have to make it conform to that .
Mr . Scala said he would move that they delay for some reasonable period such as two
to four weeks . Mr . Frost said he wouldn ' t like to see this go any further than their
next meeting certainly and he would think the occupants of the building in question here
are well advised that there not be any parties held on the property . Mr . Scala said the
main point is that there was a move made on the safety aspect of this which is very
serious . Mr . Frost said it would appear that December 14 , 1994 is the Board ' s next
meeting date .
MOTION
By Mr . Pete Scala , seconded by Mr . Harry Ellsworth .
RESOLVED , that the appeal of Douglas H . Armstrong , Appellant , requesting a time -
limited variance from the requirements of Article IV , Section 11 of the Town of
• Ithaca Zoning Ordinance , to be permitted to maintain the occupancy of a single -
family residence by five unrelated persons ( maximum three unrelated persons allowed )
at 975 Taughannock Boulevard , Town of Ithaca Tax Parcel No . 21 - 2 - 32 , Residence
District R- 15 , be postponed until the next Board meeting with the following
findings :
1 . The next meeting will take place on December 14 , 1994 .
2 . That the applicants produce specific plans for the fire retarding materials and
a measure to bring that particular bedroom into compliance .
Mr . Armstrong said it was his belief that only if they were going to apply . for a
two- family usage would they have to do the fire retardant materials and , if it is a one -
family , this is not necessary . He asked Mr . Frost if this is correct and Mr . Frost said
he thought what the Board is looking for ( and he thought , in part , it ' s because of the
egress from the bedroom and this is only presuming that the Board goes so far as to
actually consider granting the variance ) is that the Board will want some assurance that
some degree of fire safety , including working smoke detectors , etc . are in the building
for the duration of that lease . Mr . Armstrong said they have asked the electrician to
reconnect the smoke detectors which were all disconnected without their knowledge . Mr .
Scala said they should do whatever it takes to meet the codes and satisfy Mr . Frost in
discussion of the letter they had received from him but it should be very clear what
actions they ' re going to take . Mr . Ellsworth noted that the time schedule for when
these safety violations are going to be cleared up should be included .
• Mr . Stotz asked if there wouldn ' t have to be some actual application for a variance
from state requirements . Mr . Frost said he thought the sense is that the Armstrong ' s
are not looking to make this a basement apartment . Based on what Attorney Barney has
suggested , this time - limited variance is not necessarily the Town condoning or being as
Town of Ithaca 17
Zoning Board of Appeals
November 9 , 1994
fully exposed to the illegality of it but providing on a temporary measure a variance .
• Mr . Frost said it seemed to him that the appeal to New York State is out because they ' re
not looking to make this a basement apartment and he thinks other issues , even zoning
issues , come into effect then . What the Armstrong ' s are looking for is some temporary
relief until the lease has expired but , in the interim , providing a higher degree of
fire safety for the occupants of the building . He would say , not only downstairs , but
upstairs is just as important . Chairman Austen said he wanted to add that he would be
very negative if there wasn ' t a legal access out of that window if anybody was going to
be in that room . Mr . Frost said he thought relocation of the smoke detectors might also
be contemplated because they often get disconnected because of their proximity to a
kitchen and he would rather relocate it and have a working smoke detector than have one
that ' s working and then disconnected . He also wanted to say to Mr . Lucente that , in no
way , is all this discussion indicating that the applicants are going to get their
variance in December .
With no further discussion , Chairman Austen asked for a vote on the motion which
resulted as follows :
AYES - Austen , Ellsworth , King , Scala , Stotz .
NAYS - None .
The motion was carried unanimously .
The third appeal to be heard by the Board was as follows :
APPEAL of Janice A . Cornish , Appellant , requesting authorization from the Zoning
Board of Appeals under Article %II , Section 54 of the Town of Ithaca Zoning
• Ordinance , to be permitted to add a second dwelling unit to the second floor of a
residential building on a non-conforming parcel of land at 509 Five Mile Drive , Town
of Ithaca Tax Parcel No . 31-2-32 , Residence District R- 15 . Said parcel is non-
conforming since it contains , in addition to said residential building , a second
residential building containing two dwelling units . The Town of Ithaca Zoning
Ordinance allows for only one residential building with up to two dwelling units on
a single parcel of land .
Chairman Austen asked if she lives in this building now and Ms . Cornish said yes .
Mr . King said they have , in the minutes , the action of this Board in 1987 which refers
to building 1 and building 2 in those proceedings and what they now have doesn ' t
indicate which was which . Mr . Frost said , due to the situation back in 1987 , several
things happened including a permit being issued for the second floor of the house up by
the road . He said the Board could see by the photos being passed around and which would
help him explain this . There was a permit issued for an apartment based on the approval
of 1987 to put the apartment in the upstairs of the house closest to the road .
It turned out , however , from the hearing that the intent was to put the apartment
in the back building . There was even confusion from Mr . Frost ' s office as to which
building was being granted approval . It resulted in a permit being issued for a third
unit to be added in the basement of the back building which looks like a barn structure
in the picture and that was by special approval of this Board . There was not an
approval and there was an agreement in writing from Ms . Cornish that the second floor
of the house up front ( which is before the Board tonight ) would not be used as a
dwelling unit . They did get a complaint from a neighboring property owner alleging that
the upstairs was being used as a dwelling unit . It resulted in discussions with Ms .
Cornish in the last several weeks /months which then resulted in her coming in tonight
to make her case for a fourth unit upstairs .
Town of Ithaca 18
Zoning Board of Appeals
November 9 , 1994
Mr . King asked if a second apartment was put into the back building , as Mr . Frost
• calls it , which is actually set further back from the highway and is close to their
north barn and Ms . Cornish said , yes . Mr . Frost said that is now certified by his
office and a Certificate of Occupancy was issued based on special approval . Ms . Cornish
agreed and said they did have approval . Mr . King said , so the building to the south and
close to the highway is the one they ' re referring to tonight .
Mr . Gary Provost , also of 509 Five Mile Drive , said what they did was construct that
area upstairs in 1987 ( Ms . Cornish added this was with a permit ) and , midstream , they
consulted with Mr . Frost because there was some confusion as to which was which so they
just made an agreement . Their kids stay up there because it was all part of the house
and they were under the impression they could do that and , now , they have read the
zoning book they have which said they could have two unrelated people on the property .
Since they talked with Mr . Frost , they find that ' s been changed so now they can only
legally have one but they have two unrelated people on the property .
In addition , they ' re going to be moving to Florida within the next two to three
months and will be using it as a temporary residence in the summer when they return to
New York . They don ' t want to limit themselves to say that , in case of emergency or
something else , they can ' t move in . Mr . Frost asked who , in fact , is living downstairs
in the house now where they maintained a residence for so many years . Ms . Cornish said
what happened is the following . Their daughter got a job in Rhode Island and her son
and Mr . Provost ' s children all live out of town . They ' re getting ready to retire so ,
at the end of August , they had a big yard sale and they rented the downstairs thinking
it was ok because it was to two people and they moved upstairs knowing that was ok
because it was all right for family use . Then they found out that the zoning was
changed and there is only supposed to be one unrelated person downstairs . Mr . Frost
• said he thought he followed what they ' re saying in that the zoning ordinance used to
allow a family and two boarders . That was then changed to allow a family and a single
boarder in a single - family residence . So Mr . Frost thought what Ms . Cornish was saying
is that her and Gary Provost ( constituting a family ) were upstairs , they have two
boarders downstairs , and that goes beyond the allowance of the ordinance . Mr . Ellsworth
asked if this was the closer property to the road and Ms . Cornish said that ' s correct .
Mr . Frost said it was also a little bit of a convenient situation because they have
installed a kitchen thinking that would be the house that they got the permit for from
the 1986 variance , when the variance was intended for the back building . Ms . Cornish
said it ' s been a separate unit since 1987 and Mr . Frost said they had a letter basically
saying they would not rent out that upstairs and there was action taken some time in
1987 ( which he thought was prior to this Board ) in other cases making people remove
kitchen sinks , stoves , and so forth which is a process they ' ve gone through in more
recent years . Mr . Frost said ( for the new Zoning Board member ) by definition of the
building code and zoning ordinance , a dwelling unit is kind of an independent living
space where you have facilities for cooking , for sanitary conditions , and for sleeping .
If you remove some component of that ; by definition , you no longer have a dwelling unit .
Traditionally , it ' s been - - remove the kitchen and you may have a separate place for
sleeping and sanitary purposes absent of a kitchen - - no dwelling unit .
Mr . King asked , just for the historical record , if he understood that Mr . Frost ' s
office issued a building permit for the wrong building . Mr . Frost said he wouldn ' t put
it quite that way but he would add that they discovered , in the process , that work had
commenced on the back building anyhow and that back building was allegedly intended for
• family members . So it also became a convenient mechanism for them to right a wrong
because they had commenced something wrong in the first place . It was also convenient
for them to go ahead and put the apartment in the back . Mr . Provost said they didn ' t
know that either because they were still under the same premise and Mr . Frost said but
Town of Ithaca 19
Zoning Board of Appeals
November 9 , 1994
they were assuming , if they were renting it to their family , that was legal but it was
creating a violation . Ms . Cornish and Mr . Provost both said no , they weren ' t renting
• it and Mr . Frost said , even if they weren ' t renting it , it ' s still creation of a fourth
unit by definition because it had a kitchen , a bathroom , and a bedroom back there
already . Yes , they had erred but - - at the same time - - it enabled the appellants to
correct their violation .
Mr . Scala asked what is there now . . . the back building has two units and they ' re
both rented but not to their families? Both Ms . Cornish and Mr . Provost agreed that was
correct . Mr . Scala said currently , in the house near the road , Ms . Cornish and Mr .
Provost live there . Ms . Cornish said yes - since 1987 , they ' ve lived in the downstairs
with family use upstairs but , right now , they ' re upstairs and they did rent the
downstairs . Mr . Frost noted that the tenants are not family ( Ms . Cornish agreed ) . Mr .
Scala said , essentially , the appellants now have in operation two houses each with two
units . Mr . Frost said that was correct but one of which they live in ( Ms . Cornish
agreed ) . Mr . Scala asked if they wished to retain the situation they now have while
travelling back and forth to Florida and Ms . Cornish agreed that ' s correct , for family
use . Mr . Provost again stated this would be just for family use . Mr . Scala asked if
they would retain the rental downstairs and they would be using it upstairs and Ms .
Cornish said this was correct . Mr . Scala said they would essentially then retain two
houses , each with two units , and they would reside in one of them .
Mr . Frost said , originally , this property was determined to be ( to the best of their
information and absent of any new information ) legally non- conforming since it had a
dwelling unit and house up front and dwelling unit and house in back . The zoning
ordinance permits only one building . This had two buildings , so it was non-conforming .
They came to the Board in 1987 , got approval to add a third unit which ultimately ended
• up in the back building . Tonight , we are looking at again extending a non- conforming
use to four units . Mr . Provost said they had originally asked for four and Mr . Frost
said they denied the fourth . Mr . Provost said this was because of the environmental
impact on the area . Mr . Scala said what is legal now is the back building with two
units rented and the appellants are living in the other house . Mr . Frost said he would
term that legally non- conforming and Mr . Scala said that ' s what would exist unless this
Board chooses to do otherwise .
Attorney Barney noted that the two units in the front of the house are not approved .
To the extent that there are two units , that is a violation . Mr . King said only one
unit is allowed and Ms . Cornish said the front unit is a single - family home . Chairman
Austen agreed because they had granted the Special Approval for the second unit
( building # 2 ) which was the back building . Ms . Cornish stated the single family had
gotten separated at that time which makes it two units but , up until this time , they had
used it for family use only . Mr . Frost said it was no longer family other than she and
Gary and Ms . Cornish agreed . Attorney Barney said you have to separate out the legal
non-conforming and illegal non- conforming issues . Mr . Scala said , right now , they have
both and Attorney Barney agreed . Mr . Scala asked if the non- conforming aspect has to
do with the distance of the house to the front line and the distance of the back house
to the side line . Mr . Frost said that may , in fact , be true . More importantly is that
there were two separate residential buildings along a parcel of land when this Board
first heard the case . Mr . Scala said there are three aspects then - - two that relate
to distances to the line , and one that relates to the fact that there are two houses .
Mr . Frost said there is also what makes them conforming , but that ' s not necessarily
germane to what they ' re requesting . Attorney Barney said , assuming there has been no
• new construction , the distance requirements are probably valid non- conforming uses . The
existence of two buildings on the property is a valid non- conforming use . The existence
of two units in the back building is , by authorization of this Board , a valid non-
conforming use . The existence of two units in the front house has never been approved
and is an invalid non- conforming use .
Town of Ithaca 20
Zoning Board of Appeals
November 9 , 1994
Mr . Scala asked what the basic reason was for renting part of the house . Ms .
Cornish said they ' re not going to be here . . . Mr . Provost has health problems and she ' s
• going to retire . The person who rented it and is now living there is going to take care
of the property while they ' re away . Mr . Stotz asked if anyone then was going to be
occupying that second apartment except them . Ms . Cornish said them or their family , but
that ' s it . . . just their family . Mr . Frost asked , when they said family , is it
understood that means blood relations ? Ms . Cornish said just the children and that they
have five children between them . Mr . Scala said , so the need for a variance here to
create this second unit is for the convenience of minding the house and not a financial
need . Ms . Cornish stated she is 55 and won ' t get Social Security until she ' s 62 so
there are financial reasons . Mr . Provost said they also want the house to be heated so
this helps the whole situation .
Mr . Ellsworth asked the nature of the adjacent property and said , somewhere on Five
Mile Drive , there are apartments on one side . Mr . Provost said it has apartments on
both sides . Mr . Frost said , further down the road , there is a section of multiple
residence district and there are apartments on both sides . On the other side ( the west
side ) , those apartments are in the City of Ithaca . Mr . Provost said there are twenty
multiples down below and then there are four to six above them . Mr . Frost said , from
this property towards the octopus , it becomes the City of Ithaca and there are multiple
residences there . Away from the octopus towards the south , there ' s a small multiple
residence district . Mr . Ellsworth asked if there were two buildings on the property
adjacent to the south and Mr . Frost said there is one building with six or eight single -
story units ( looks like a multi- residence ) .
Mr . Scala said , in effect , if this Board were to agree to allow two houses on the
property , each with two residential units , it essentially could look forward to having
• two rentals in each house . Ms . Cornish said she would love it if that were to happen
but she didn ' t think that ' s what she is asking for . Mr . Frost said , if the Board chose
to grant the approval to allow that , but you can impose conditions upon that also . Mr .
Provost said they ' re not asking for that . Mr . Scala asked if he was saying that the
variance could limit one of the apartments in one of the houses to be for family only
and Mr . Frost said he would say , more specifically , the one the appellants are asking
for is the upstairs of the house near the road . Mr . Frost said likewise , if you were
to contemplate density , keeping two units away from the road would make more sense than
allowing two units in front . If the Board chose to grant the variance , you ' d want to
keep it exactly for the unit upstairs in the house closest to the road . . . period . . .
and not allow them the option of moving around .
Referring to the tax map , there followed some discussion on surrounding properties
with regard to size , use , etc . Mr . King said , for the record , the survey map ( which had
been given to the Board as part of their packet ) shows this property went under the name
of the previous owner , Bossard . The map purports to be at a scale of 1 " to 50 feet .
This map is actually reduced in size so the scale is closer to 1 " equals 64 feet . Mr .
King said , having figured that out , he was then able to determine that the houses appear
- - from the house closest to the road - - its northeast corner is about 85 ' from the
southwest corner of the house that sits back . Mr . Provost said they ' ve tried that
measurement and it ' s approximate , but they could never get it to come out accurately by
the pins that are existing . Mr . King asked , over in the corner , how far apart are those
buildings? Mr . Provost said he never took that measurement because they sit about 60
to 70 ' back from each other . Mr . King said he figured the lateral setback is close to
75 ' according to the map . Mr . Provost said he ' s tried all kinds of measurements and he
• just could not get any of them to match up using the surveyor ' s pins . They were close
but were 2 ' to 3 ' off .
Town of Ithaca 21
Zoning Board of Appeals
November 9 , 1994
Mr . Stotz asked if the second story apartment complies with all applicable
regulations . Mr . Frost said he wouldn ' t want to make that statement because they
• haven ' t been in there in a number of years . Ms . Cornish said it had a building permit
and Mr . Frost said yes , he knew that but things change . He wasn ' t saying things have
changed but just wouldn ' t want to make that statement without looking at it . Attorney
Barney asked which building he was talking about and Mr . Stotz replied he ' s talking
about the second story apartment in the building near the road . Attorney Barney said
we don ' t know if it complies or not and Mr . Frost said he believes it did because they
issued a building permit but , if you ask him if it complies at this very minute today
or last week , he ' s not going to say that because it ' s been a number of years since
they ' ve been in that unit .
Mr . Stotz asked if they had issued a permit for both units and Mr . Frost said no ,
they issued a permit which was intended to be the third unit as approved by the Board
to the building up front . Chairman Austen said no , building # 2 was what it was for and
Mr . Frost said that ultimately got issued to building #2 and was where the Certificate
of Occupancy was issued . Mr . Frost said the one upstairs ( that ' s before tonight ) in the
building closest to the road , he would not say is a legal apartment unless he goes in
there . It was intended at the time they commenced work ( a number of years ago ) to be
legal . Both Ms . Cornish and Mr . Provost said they have a certificate and that Mr . Frost
had inspected it for the upstairs occupancy and Mr . Frost said , but not for a dwelling
unit . Mr . Frost reconfirmed that the Certificate of Occupancy was issued for
renovations to the 'upstairs second floor of the house closest to the road . Attorney
Barney said , and that was a different permit than for the second unit of the house in
back . Mr . Frost agreed and said the Certificate of Occupancy issued for the second
floor was to essentially consummate work done and renovations to the second floor of
that house and did not designate the house as a two- family residence . Attorney Barney
• said there was a Certificate of Occupancy following on a building permit for a second
unit in the rear of the building ( Mr . Frost agreed ) . Therefore , that building is in
compliance as a single - family house ( Mr . Frost again agreed ) .
Mr . Scala said , at present , both houses have two units and does that mean there are
four kitchens and four bathrooms? Ms . Cornish said on the property , yes . Mr . Scala
said , in other words , each of the units in each of the two houses has its own kitchen
and its own bathroom ( Ms . Cornish agreed that ' s correct ) . Mr . Frost said , however , the
town has certified the back building as a two- family residence , the front unit as a
single- family residence , with a statement from the Cornish ' s obtained a number of years
ago stating that the upstairs of the house closest to the road would not be rented or
utilized as a dwelling unit . Ms . Cornish confirmed that it has not been rented since
that time . Mr . Scala asked if they did use it as a dwelling unit with its own kitchen
and its own bathroom and Mr . Provost said they had done that before they did anything
. . . he had put everything in there before they got to all this confusion .
Mr . Frost said , should the Board grant the approval , it should be conditioned upon
his office certifying the upstairs and the entire building as a two- family unit . At
that point , they could reassess and assure that the building is code compliant for a two
family .
Chairman Austen then opened the public hearing . With no others present to speak ,
the public hearing was closed . Chairman Austen noted that , back when the Board did
authorize this , it was the second unit for building #2 which was the rear building and
the one furthest from the highway . Mr . King noted that building is near the north
• property line . Mr . Frost said , when he discussed this case with the Cornish ' s , he
advised them - - if there was new information they wanted to present to the Board that
was different than the original appeal back in 1987 , which was in fact for two
buildings / two units and was ultimately denied - - they should come before the Board
Town of Ithaca 22
Zoning Board of Appeals
November 9 , 1994
tonight saying they now want the fourth unit again ; but , since that was perhaps already
• denied , they ' re here tonight because they state they have new information . Chairman
Austen said , and the new information is that they plan on moving out of the state ( Ms .
Cornish said not totally ) and they want to use this for their summer residence . Mr .
Frost said they ' re claiming though , reference item #2 on the second page of their appeal
application , that they need to spend damp- cold months in a warmer climate due to Mr .
Provost ' s illnesses and asked if they have any Doctor ' s statements to support that . Mr .
Provost said no but , every time he goes to his Doctor , he tells him the same thing which
is to move to a dry climate . He also stated he could get a doctor ' s statement without
a problem . Mr . King asked if his problem was pulmonary and Mr . Provost said no , he has
arthritis and asthma which this climate doesn ' t help .
ENVIRONMENTAL ASSESSMENT
Chairman Austen read Part III of the environmental assessment form done by JoAnn
Cornish , Planner II . With no further discussion , a motion was made as follows :
MOTION
By Mr . Edward King , seconded by Mr . Pete Scala .
RESOLVED , that the Board adopt the recommendations of JoAnn Cornish , Planner II
dated November 3 , 1994 and find a negative determination of environmental
significance for the appeal by Janice A . Cornish for the property at 509 Five Mile
Drive , Town of Ithaca Tax Parcel No . 31 - 2 - 32 , Residence District R- 15 .
With no further discussion , Chairman Austen asked for a vote on the motion which
• resulted as follows :
AYES - Austen , Ellsworth , King , Scala , Stotz .
NAYS - None .
The motion was carried unanimously .
Chairman Austen said his problem would be that , if the special approval were given
and the building was sold , it is sold as two units with no restrictions essentially .
Attorney Barney said , if it were sold , it would be sold as four units as far as two
buildings on it . Mr . Stotz asked if there is any way to grant a variance with a
condition that , if the building is sold , the variance is no longer valid . Mr . Frost
said this is not a variance , this is a special approval . You don ' t have to make the
same findings if you have a hardship with a variance . You can make findings with a
special approval and the question is , when you grant a special approval , can you
condition it and limit it to the property owner? Attorney Barney said , normally , a
special approval is like a variance and relates to the land . The answer to the question
is yes , you probably could . It ' s not usually good practice to do that because it ' s
suggesting that the special approval is related to a personal situation as opposed to
some aspect of this property that ' s a problem . What might be in order and what this
Board has done in the past is a time - limited special approval for three or five years
or some definite time period after which it expires automatically unless it ' s renewed
or regranted within the time limit .
Mr . King said that would have to require removal of the kitchen or the dwelling unit
• aspect of the second unit . Mr . Frost said , other than as it already exists , if his
office finds that there is no other change necessary for them to be able to certify it
as legal , habitable space or a second dwelling unit , then they haven ' t lost anything .
If you deny them , they ' re still in the same boat . The space is still there and it ' s
Town of Ithaca 23
Zoning Board of Appeals
November 9 , 1994
still limited to being used as a single- family residence . If you give them a time-
limited approval and a few years from now you don ' t renew it , they haven ' t lost
• anything . Attorney Barney said you could add , as part of your time - limit at that time ,
conditions and make it a second qualifier ( Mr . Frost said this would be such as removing
the kitchen ) .
Mr . Scala asked , whether the appellants are there or not , they ' re living upstairs
so , in effect , what the Board would be allowing is that they can rent the downstairs .
Attorney Barney said that the special approval could be conditioned that one of the
units be owner occupied by Ms . Cornish , Chairman Austen asked if they would want to say
which unit must be owner occupied and Attorney Barney said it ' s up to the Board , you
could say one of the two units or you could state a specific unit . Mr . Frost asked what
would happen if they wanted to sell the property next year and how the property would
be transferred or if it could be transferred as a four unit property . Attorney Barney
said it could be transferred subject to the same thing , owner occupancy . Mr . Frost
asked if this would include the time limitation and Attorney Barney said yes , with the
remainder of the time limitation the Board had set .
Mr . Scala said what is also being said is that the Board would not allow their
family to move in upstairs , it would be for their owner use only . Attorney Barney said
it would also be possible to say owner occupied or occupied by children . Mr . Scala said
he was just trying to clarify and asked if there was no way the appellants could stay
in Florida but let their children move in upstairs . Attorney Barney said , if the Board
chose to , they could limit the variance that way . Mr . King said , as he understands it ,
that ' s what the applicants wanted to do . Ms . Cornish said , at this particular moment ,
their children are all out of town . However , if some change were to occur , they would
want it available for the children ' s use as well as theirs . Attorney Barney asked if
• that would be on a rental basis or temporary basis to the children and Ms . Cornish
replied it would be on a temporary basis , no rental . Mr . Provost reconfirmed there
would be no rental .
Chairman Austen stated for the record that a letter dated October 20 , 1994 had been
received from the Tompkins County Department of Planning by James Hanson , Jr . ,
Commissioner of Planning . With no additional discussion required , Chairman Austen then
asked for a motion on the appeal .
MOTION
By Mr . Pete Scala , seconded by Mr . Harry Ellsworth .
RESOLVED , that the Board grant the applicant , Janice A . Cornish , requesting
authorization from the Zoning Board of Appeals under Article XII , Section 54 of the
Town of Ithaca Zoning Ordinance , special approval to add a second dwelling unit to
the second floor of a residential building on a non-conforming parcel of land at 509
Five Mile Drive , Town of Ithaca Tax Parcel No . 31 - 2 - 32 , Residence District R- 15 ,
with the following findings and conditions :
1 . That the special approval pertains to adding a second dwelling unit to the
second floor of the building nearest the road .
2 . That the second floor apartment be found to be in compliance with all applicable
fire codes .
• 3 . Conditioned on this second dwelling unit being solely for the use of the owner ,
Janice A . Cornish ; her friend , Gary Provost ; and their respective children with
the downstairs unit of this building being rental .
Town of Ithaca 24
Zoning Board of Appeals
November 9 , 1994
4 . Conditioned on there being a time - limit of three years for this special
approval . If the special approval is not renewed by the end of such time period
( June 30 , 1998 ) , the kitchen facilities including the stove , oven , refrigerator ,
and sink will be removed such that this will no longer qualify as a dwelling
unit .
5 . That this matter is in compliance with Section 77 , Paragraph 7 , Subparagraphs
a- f of the Town of Ithaca Zoning Ordinance .
With no further discussion , Chairman Austen asked for a vote on the motion which
resulted as follows :
AYES - Austen , Ellsworth , King , Scala .
NAYS - None .
The motion was carried unanimously . The meeting was then adjourned at 9 : 30 PM .
" %z"ktlj ) 0
Y anda M . McLaughlin
Recording Secretary
•
Edward Austen , Chairman
•