HomeMy WebLinkAboutMN-CC-1987-10-20COMMON COUNCIL PROCEEDINGS
CITY OF ITHACA, NEW YORK
Special Meeting 5:00 P.M. October 20, 1987
PRESENT:
Mayor Gutenberger
Alderpersons (8) - Booth, Dennis, Hoffman, Killeen, Lytel,,
Peterson, Romanowski, Schlather
ABSENT:
Alderpersons (2) - Cummings (excused), Haine (excused)
OTHERS PRESENT:
City Attorney - Nash
City Clerk - Paolangeli
Personnel Administrator - Baker
Building Commissioner - Hoard
Fire Chief - Olmstead
Acting Police Chief - Pagliaro
Director, Planning and Development - Van Cort
Superintendent of Public Works - DougLerty
Commons Coordinator - Deming
ri Commissioners, Board of Public Works - Nichols, Stone
d" 3rd Ward Aldermanic Candidate - Johnson
Lo City Planner - Meigs
Preservation /Neighborhood Planner - Chatterton
m PLEDGE OF ALLEGIANCE:
Q Mayor Gutenberger led all present in the Pledge of Allegiance
to the American flag.
ADDITIONS TO THE AGENDA:
Petitions and Hearings of Persons Before Council
Alderperson Dennis requested the addition of Petitions and
Hearings of Persons Before Council.
No Council member objected.
Planning � Development Committee
Alderperson Booth requested the addition of a motion of referral
to the Planning $ Development Committee and to the Planning
Board involving the question of a city -wide moratorium on
large scale development projects, pending Common Council's
adoption of a site review process.
No Council member objected.
SPECIAL ORDER OF BUSINESS:
New Police Chief Appointment
Mayor Gutenberger stated that it is an honor and privilege
to present to the community and to Common Council the name
of the person to fill the position of Police Chief for the
City of Ithaca - Brian T. Page, currently a retired Captain
of the Rochester Police Department. He has gone through,
as did all final candidates, a very extensive interviewing
process with community groups, with representatives of the
criminal justice community, with representatives of the PBA,
and the established interviewing committee. He,passed onto
Council the unanimous recommendation of all of those groups.
He thanked each of the individuals for giving their time
and helping his administration and the City through this
process. He stated we have an outstanding individual and
we he is extremely proud to present him to Council.
Resolution
By Alderperson Dennis:
WHEREAS, Brian T. Page
the City of Ithaca Pol
John C. Gutenberger as
the vacant position of
Seconded by Alderperson Killeen
has been unanimously recomAnded by
ice Chief Search Committee and by Mayor
the person most qualified to fill
Chief of Police; now, therefore, be it
373
374
-2- October 20, 1987
RESOLVED, That Brian 1'. Page is hereby provisionally appointed
to the position of Chief of Police for the City of Ithaca
effective November 9, 1987 at an annual salary of $47,000.
Carried Unanimously
Chief of Police Brian T. Page was sworn into office by City
Clerk Callista F. Paolangeli.
Alderperson Romanowski left the meeting at 5:15 P.M.
PETITIONS AND HEARINGS OF PERSONS BEFORE COUNCIL:
Training Sessions for All Police Officers
Patricia A. Maxam, 327 South Geneva Street, presented a petition
requesting the new Police Chief to conduct training sessions
for all police officers in order for them to learn how to
conduct their business with a minimal amount of violence.
The petition was started on October 14th.
Mayor Gutenberger stated that he will be sure the Police
Chief receives the petition.
Valentine Place Project
David Lehman, 105 Valentine Place, read the following letter
to Common Council:
"Plans are afoot to add several multi -unit apartment buildings
at the foot of Valentine Place. On September 18th, a permit
was granted to allow the construction to proceed. Though
it appears that few members of the Common Council and other
City agencies were consulted about the wisdom of the project
that could add as many as 250 persons and 100 cars to Valentine
Place, a street that has already absorbed a terrific population
expansion over the last three years. What's more, the proposed
construction is at the edge of Six Mile Creek gorge. It
seems only natural to speculate about the possible adverse
impact of the proposed construction upon the gorge. Yet,
no formal study of the project, environmental impact, was
made prior to the granting of the permit. Many people in
our community are frankly alarmed. We fear that the added
buildings will alter the character of the neighborhood in
ways that can only be deleterious. Neighborhood population
mix is in a precarious balance and may be upset, perhaps
irrevocably. Soon there is reason to worry that the remaining
families in the area will feel obliged to pull up stakes
and move on. The conversion of a pleasant, quiet, varigated
community into a homogeneous student only district will then
be complete.
We who live on Valentine Place have other more immediate
concerns as well. We are worried that the new construction
will increase local traffic congestion and noise pollution
to intolerable levels. We fear that the construction will
create serious problems having to do with street access,
for example, that are not yet being addressed. In effect,
therefore, the granting of a building permit may commit us
all to a series of future measures and future sacrifices.
There seems to be something fundamentally unfair about such
a procedure.
It's worth noting that City Engineer William Gray warned
Building Commissioner Thomas Hoard about the problems and
complications of street access and site drainage in his memo
of September 22nd. Yet the permit had already been granted.
Doesii't this suggest the possibility that the building permit
was granted precipitously and without due consultation? These
are some of the reasons that lead me to advocate an immediate
moratorium on the proposed construction pending a review
by the Common Council and by other relavent City agencies."
0
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-3- October 20, 1987 375
John Allberg, 106 Dunmore Place, President of Bryant Park
Civic Association, stated that Bryant Park Civic Association
wishes to go on record as supporting the home owners on Valen-
tine Place in challenging this project. We are as concerned
about the process which permitted it getting this far without
seeing the light of day as we are about the potential impacts
from the development itself.
First, this is a large project; 259 beds permitted, 99 parking
spaces on approximately two and one -half acres of land; this
with all the implications on issues of density, traffic,
- access and noise. Second, this follows right on the heels
of three other large student apartment housing projects in
this immediate area that will add a total of well over 400
residents since 1984. Third, this is an area that is sensi-
tive both environmentally and politically.
The Trancik report of 1983 which dealt with development of
this Novarr tract made repeated reference to the environmental
constraints on the land and the importance of careful coordination
of any development by the City Design Review B3ard. The City
Engineer's office, as previously mentioned in surveying the
site, cautioned that "everywhere I turned I seemed to develop
more questions ". From the political aspect anyone who doesn't
LO understand that this would be politically controversial
= would have to have been outside Ithaca for the past five
Myears. Concurrent with the isssuing of the building permit
Q for the Novarr project, Ithaca was in the midst of an outburst
of interest in gorge preservation that attended discussion
of the proposed Theory Center at Cornell University.
Finally, there are a number of fuzzy issues that are associated
with the project; an access road is proposed to the site
in which there is some quesiton as to whether it is a private
road, a city road, whether it's adequate for projected volumes
of traffic and whether it is appropriate for emergency access.
There is a question of whether this comes under subdivision
regulations, therefore requires subdivision reviews. The
Short Environmental Assessment Form that was completed on
the project is challengable in at least six points. All
of these add up to red flags that were crackling in the wind
suggesting that a thorough and open review of the proposal
should have been carried out by planning agencies, environmental
groups and the public.
The Bryant Park Civic Association recommends that (1) the
Council and the Mayor should suspend the building permit
pending full and adequate review by all appropriate bodies,
and (2) the Council should direct the Planning Department
to immediately develop more adequate site plan review procedures
for large scale development projects."
Betsy Darlington, 204 Fairmount Avenue, read the following
statement to Council:
"I think that perhaps some sort of compromise can be worked
out on this. Clearly, John Novarr, the developer, is not
to blame. He appears to have complied with the law and the
Building Commissioner did everything he thought the new gorge
ordinance required by getting the project scaled down and
the building moved back farther from the edge of the gorge.
In other words, this isn't a time for blaming anyone, it's
a time to see what can be done about it. Taking the most
conservative possible view of what constitutes the gorge,
its upper edge is where the steep bank drops off at the edge
of the construction site. Although the buildings won't sit
on the edge of the gorge as so defined, the road and construction
3'7 6
-4-
October 20, 1987
area for the project already do. That would certainly be
a violation of the ordinance, and sufficient reason to revoke
the building permit until an impact statement can be done.
But my concern is this is more than simply the impact on
the gorge of having the project near its edge. My concern
is also with several other problems with the development,
problems which place a heavy burden on a few elderly people
and their embattled neighborhood as well as on a much wider
area.
Except at its far end, Valentine Place is a quiet little
street with older homes. With the exception of the developer's
other large nearby projects, this is mostly a single- family
residential area, and lies inside a designated historic
district. Two elderly sisters who have lived in their attrac-
tive house since at least 1929 will have a new access road
passing within a few feet of their house. The house next
door to theirs, built about 1905, is owned by an older couple
who has lived there since the 1940's. The City, it turns
out, owns the right -of -way that goes through the edge of
that property very near their house.
The City simply must think of what this development will
do to those four people and all the others along Valentine
Place, as well as along nearby streets. It is the City's
responsibility to protect them and their neighborhood, one
of the City's older and more venerable ones.
Mr. Novarr tells me that he anticipates that in just a'few
years that entire neighborhood will be student housing anyway,
all the familities having fled. If his project proceeds
as planned, it would certainly hasten such a demise of the
neighborhood.
Aside from the impact on the character of the neighborhood
of suddenly adding about 200 -259 temporary residents, there
are several other issues that should be of concern to you:
1) The area to be developed is currently a small forest,
surrounded by older homes and a new high- density residential
development. The plot is just downhill from the busy Mitchell
Street -East State Street intersection, and is a remnant of
the extensive forest that once lined Six Mile Creek gorge
through the City. It lies just above the steep drop -off
down to the creek.
It is well known that trees play a vital role in cleaning
the air of pollutants. The intersection above is a busy
one, and as all of you know who has ever walked through it,
extremely smelly at times. Traffic all over the City is
increasing, and we desperately need patches of woods to help
keep our air clean. If this woodland is wiped out as planned,
the foul fumes from the traffic just above it will drift
unimpeded all around Ithacare and nearby houses and develop -
ments, and to some extent, over the City as a whole. How
will this affect the health of the elderly residents of
Ithacare (to say nothing of all the other neighbors), some-
thing I am sure the directors of Ithacare never thought of
when they leased the land to Mr.Novarr. Of course we'd
be much better off if we had more woodlands to soak up some
of this stuff, but unfortunately no one is proposing putting
in a woodland. Let's not take out what we've got.
These woods also help buffer the area from the fumes of Wilcox
Press, located uncomfortably closeby, downstream.
Irt
-S- October 20, 1987
2) This woodlot also serves as a giant sponge for runoff.
Isn't it predictable what will happen to the steep gorge
banks below it when this sponge is replaced by impervious
materials? And how stable is this bank anyway? Between
the woodlot and East State Street there is nothing but black-
top and housing. This sponge is not just a nice convenience;
it's a necessity, if we're going to protect that gorge. What-
ever plans Mr. Novarr has to take care of this must be
scrutinized by knowledgeable people.
3) The traffic on East State Street at the intersection
with Mitchell (Rt. 366) will become considerably worse with
the cars of so many new residents and their guests going
in and out of Valentine Place, a stone's throw to the east.
I understand that Ithacare has ruled out access to Quarry
Street, so Valentine Place is the only option left.
37'7
4) I am curious about how the Short EAF was filled out for
the project. On what basis were the following items answered
"no ": S, 6, 7, 8, 9, 11, 13, 14, 1S? 7, 8, 9, 11, 13,
14, and 1S would all have been answered "yes" by just about
anyone familiar with the project, if they were attempting
Iq to be fair and reasonable. Items S and 6 would at least
LO be "maybe ". Who determined the negative assessments on these
items, and how? At what time of year were the plants inventoried,
Mand by whom? There are some "protected" species in the site
Q and I wonder if Ithacare's permission was given for their
destruction or if they even knew that they were there.
S) The City has just fought hard against Cornell over the
Theory Center. We will look like fools - -or worse, hyprocrites --
if we let this other project proceed as proposed, a project
which would be even more damaging to gorge and neighborhood
than the Theory center would have been. The solution does
not lie in cutting down still more of the woods so the project
can be moved father from the gorge rim. A large area has
already been cleared. If the entire project can't be scrapped,
perhaps a smaller building in the cleared area could be built,
but nothing more. The remaining portion of the clearing
could be replanted, and the remaining woodland designated
untouchable for future development. Furthermore, perhaps
the building could be for the elderly, or better, low- income
elderly, thus fulfilling a very real need in the City. This
would also be far more compatible with nearby Ithacare than
would more student housing.
The need for an access road between the homes of the four
elderly people on Valentine Place would be eliminated. There
would be almost no impact on State Street traffic. And the
remaining woods would be left intact, except for the bull-
dozed trails leading to test pits. Those units not designated for
low income people would command a higher rent because they
would have, right next to them, this lovely woodland of oak,
sugar maple, cherry, basswood, locust, cottonwood, and hemlock,
plus of course the birds and other wildlife that go with
such woods. People will pay for such attractions.
Perhaps the clause in Novarr's lease from Ithacare could
extend the period from 30 years to something longer to compen-
sate for the reduced size of the project.
I am sure Ithacare and Mr. Novarr care about this City, both
in terms of its physical environment and its neighborhoods.
And I am sure that, even if they have a legal right to do
so, neither they nor the City want to say by their deeds
to the elderly people most directly affected, "Tough luck,
folks! You're old and weak and besides, there are just a
couple of you, so we'll do whatever is within our legal right
to do. Who cares how it will affect you ?" It's an especially
ironic situations, given Ithacare's mission in care for the
elderly.
378
-6- October 20, 1987
The Mayor is an excellant negotiator as we've seen with the
Theory Center and many other instances. He knows how to
sit down with people in the most impossible of situations
and come out with viable solutions. Perhaps he and some
Aldermen could sit down with Mr. Novarr, Ithacare, and repre-
sentatives from that neighborhood and rethink the project.
The healthy, attractive environment and strong neighborhoods
are good for business too, afterall, and the developer's
long -term interests would certainly be served by retaining
these attributes for his project. At the same time, replacing
those woods with housing for 200 -some temporary residents
would significantly depreciate the value of neighboring
properties. It seems that the developer's and Ithacare's
financial gain would be at the expense of home owners all
around the project.
I have some ideas about how this type of situation might
be prevented in the future, but for now, let's get this one
solved. If ever the City had an opportunity to show neighbor-
hoods that it is responsive to their concerns and does have
a heart, this is it. Cornell has just demonstrated that
it can be open and can compromise. I hope the City can too.
Let's go beyond what is the legal minimum and do what's right."
Rishi Raj, 919 East State Street, addressed the Council with
what he perceives, and what he feels many of his co- citizens
perceive to be a very fundamental problem in the City. He
read the following statement:
"I can really feel for the innocent citizens of my community
when I see them feeling their way through the bureaucracy
and the plotting in the backrooms by the politicians. Perhaps
it's an over - statement but 1 think some of us really do feel
that. Last time when we could not preserve the green space
around our neighborhood several people in the neighborhood
felt visibly depressed. The residents of the neighborhood
are very disturbed by the events of the last two years. We
predicted that the previous development would result in the
breaking up of the neighborhood and that is exactly what
has occurred. Several homes owners have moved out. But
just to show the resilience of the people and the citizens,
families have moved back in despite the apathy of the
City officials and the politicians in this town. It is time
that some firm action is taken and our act was cleaned up
and to find out what exactly is going on."
John Johnson, 946 East State Street, addressed the Council
on the Valentine Place project. He urged the Mayor and the
Council to do everything that they can to support the neigh-
borhood and to assure a more positive outcome this time around.
Looking at the future he hopes the Council will use this
as a catalyst to set in place as quickly as possible a compre-
hensive, effective site review procedure for large scale
projects.
Chis Zinder, 108 Park Lane, presented a joint letter from
herself and Mary Herron, an elderly resident of Valentine
Place as follows:
"Dear Council People:
I have lived at 106 Valentine Place for 61 years. Since
1983 I have seen a major changes in the neighborhood. After
our most recent struggle it seems futile for me to petition
tonight. This present administration has allowed decay of
the fragile environment along Six Mile Creek gorge while
simultaneously creating instability in a once strong neighborhood.
-7-
October 20, 1987 379
I challenge you to prove me wrong. Reverse your position
on the most recent project and preserve what remains. My
efforts seem reduced to protecting my own boundaries. Only
recently I learned that a road will be opened by Mr. Novarr
between my house and 112 Valentine Place. This is a parcel
of land owned by the City of Ithaca. With permission of
the City I have gardened and tended it for over SO years.
Our extensive work greatly improved the drainage for the
entire neighborhood and the beauty of this property.
Several of my prize plantings are on this property. The
news of opening this road as an emergency access to the pro-
posed project was not presented in Mr. Novarr's letter of
September 22nd.
I need time now to present findings on my boundaries and
to move valued property."
Ms. Zinder asked how the City can allow a developer to construct
a road on City property without going through the same process
that the City is subject to. For example, the dedication
procedure.
Dominick LaCapra, 119 Terrace Place, spoke to the Council
regarding the Valentine Place project. He stated that the
= distance of the project from the gorge is clearly a matter
of interpretation. One could argue that the building is
Q taking place within the gorge depending upon how one defines
the gorge. This cannot be a ministerial decision or quasi -
automatic decision because it has to be a matter of interpre-
tation. The second problem is the question of access and
density in this area. If one goes down there and looks at
the construction site, what seems to be the case is that
a city street is being turned into a private parking ramp.
And this ramp cannot possibly accomodate the volume of traffic
it is supposed to bear. If one opposed the Cornell Theory
Center, one has to oppose what's happening on Valentine Place.
If one doesn't, one is subject to the charge that they are
simply making political hay by Cornell bashing when it was
very easy to do so, and when a comparable issue arises one
turns one's back. It is inaccurate to say that nothing can
be done, we know what can be done. The building permit can
be suspended or rescinded and a review of its granting can
be undertaken. That seems to be the only rational thing
to do at this point. One quesiton that has not been addressed
by people and it's a serious question. And that is, will
this action of suspending the permit at this point subject
the City to a lawsuit. No one wants this to happen. Whether
it happens will be in the hands of Mr. Novarr. One hopes
that lie will have the civic responsibility not to press charges
against the City. If he does then the City has to bite the
bullet.
Presently the City is spending money in ways less justifiable
than a suit would be. As a taxpayer I would much prefer
to see our money spent to prevent a real Valentine Place
massacre than for example to undertake another study for
a master plan for Stewart Park. The City did not hesitate
to go to court with American Community Cablevision when that
seemed necessary and not going to court over Valentine Place
will itself have costs. For one thing there will be the
costs of $40,000 for a stop light which will illuminate in
technicolor the massive traffic jams at Valentine and State.
And there are other hidden costs such as widening access
routes which will have to take place.
380
-8- October 20, 1987
He urged people to go down there and look at that construction
site. It is a huge, huge development project and the amount
of traffic going in and out of that place is going to be
staggering. This is an issue which is not possibly open
to understanding in terms of the cliche ridden opposition
between developers and anti- developers. This is something
that in its enormity goes beyond that. It is just incredible
the size of this project.
It seems to him at this point that suspending the permit
is a simple matter of political and civic responsibility.
Nothing more, nothing less.
Joel Rabinowitz, 312 Farm Street, read the following statement
to Council:
"For many years of my life I lived at 912 East State Street,
not far from Valentine Place and my father still lives there.
Needless to say, my love for the neighborhood in which I
grew up has not ceased simply because I now reside in another
part of the City. As many of you are aware, I was involved
in the long and traumatic Valentine Place rezoning and develop-
ment battle that took place three years ago, a fight that
is often appropriately referred to as the "Valentine Place
Massacre ".
It is incredible to me that here we are again discussing the
same location, the same issues, and a project that is far
larger and potentially more environmentally damaging than
the one we fought over three years ago.
While I do not want to belabor the past and the previous
Valentine Place battle, I do think it is important to make
two points that new comers to the neighborhood and to this
issue might not be aware of.
First, there still remain a number of unresolved questions
from the Valentine Place fight of 1984. Principle among
these and one that is most relevant to the present development
is the question of how Mr. Novarr and Ithacare ever ended
up with any properties zoned R -3 in the first place. After
all, both the Ithacare and Novarr properties were purchased
from Ithaca College. When zoning was first established and
put in place Ithaca College and its educational use proper-
ties like those of Cornell were zoned P -1, public use. Aside
from campus dormitories no residential, whether single family
or multi -unit, is permitted in the P -1 zone. In fact, it
was on the basis of the assumption that all the land he owned
was in a P -1 zone, that Mr. Novarr first petitioned the City
in 1983 for a zoning change that would allow him to build
residential units. How it happened that the current zoning
map seems to indicate that Novarr and Ithacare have some
R -3 land is a mystery that neither the Building Commissioner
or the Planning Department has ever been able to explain.
Second, I feel it is important to remind Common Council and
the public that in 1984 the Valentine Place neighborhood
was unalterably opposed to any type of development. In a
significant compromise offer the residents suggested that
the City amend the zoning ordinance to allow site specific
approval of cluster developments that would meet R -la density
requirements. If it had been implemented this idea would
have meant that Mr. Novarr could have built a small scale
group of single - family dwellings that would have been in
keeping with the then prevailing residential character of
the neighborhood. It would have provided some additional
affordable family housing of the kind that City planners
keep telling us we need so badly.
i
October 20, 1987 381
Unfortunately, Mr. Novarr rejected the compromise offer,
allegedly saying that he could not get "top dollar" for this
type of development.
I would like to turn now to the present situation. The City
has a rather detailed environmental quality review ordinance
on its books. This ordinance lists criteria for "Type 1
Actions" which are those actions or projects that are more
likely than not to require environmental impact statements.
By my reading of the ordinance, the Novarr development qualifies
as a Type 1 Action under at least three sections of the list.
The one we've heard the most about, of course, is the one
(4wo, that has to do with the project's proximity to Six Mile Creek
gorge. The other two sections have to do with the fact that
parking facilities are to be built for 50 or more cars, and
that the residential facility will contain more than 15 units.
And we've heard that the number of sleeping units is 259
in the project. Unfortunately, however, there is a terribly
big loophole in the City's Environmental Quality Review ordinance.
The loophole is that there is no point at which environmental
review would kick in if there is no necessity for any approval
of a project other than the granting of a building permit.
LDIq In response to the Theory Center issue Common Council made
some progress in closing this loophole with the recent amended
wording that Common Council passed in August. But we can
CD see how well that worked when applied to this project we
Q are now discussing. The Building Commissioner has determined
that the project is not close enough to the gorge to be considered
sufficiently contiguous despite the fact that Mr. Novarr's
workers have already graded a road that is right on the edge
of the gorge slope and treeline.
Even leaving aside the question of environmental review,
it would seem that there are so many legal questions concerning
this project that the Building Commissioner should not have
granted the permit. There are questions concerning zoning
boundaries, street frontage, subdivision approval, adjacent
property boundaries and proper engineering review of the
adequacy of the site. Until these questions are settled
the Building Commissioner should have withheld approval of
the building permit.
For these retrzons, I support any resolution put forward by
Common Council members that would respectively ask the Building
Commissioner to suspend or reconsider the previous approval
of the building permit for the Novarr project.
And this brings us to the future. If this project goes forward
it would be exactly the opposite of the planned development
and controlled growth that those of you who are running for
re- election are saying we must have in Ithaca from now on.
This project is a perfect illustration of why a mandatory
site plan review process is so badly needed. A site plan
review committee with true authority could be entrusted to
initiate proper environmental review of Type 1 Actions such
as the Novarr project. The environmental review could occur
as a matter of course in the site plan approval or permit
process. This would close the loophole I referred to earlier
and help bring the City into compliance with the State Environ-
mental Quality Review Act.
I would like to thank in advance members of Common Council
who have considered and are about to propose legislation
that would call for the establishment of a site plan review
system for Ithaca. This community certainly doesn't need
any more "Valentine Place Massacres ". Mandatory site plan
review of large development projects is surely an idea whose
time has come.
Thank you."
382
-10- October 20, 1987
Clinton Hall Handicapped Accessibility
Betsy Park, 2022 East "Tompkins Street, co -owner of 15 Steps,
addressed the Council regarding handicapped accessibility
at Clinton Hall. She stated that she had received a letter
from Building Commissioner Hoard on October 9, 1987 which
ordered her to immediately make her premises accessible to
the handicapped or face a fine of $250 to $S00 per day. Her
attorney is looking into the legal aspects of this order,
initial research indicates that she cannot be ordered by
these means. She has prepared information packets for Council
which include all correspondence among concerned parties;
15 Steps, Thomas Hoard, Jos Ciaschi, the City of Ithaca and
her lawyer. She has also included a sketch of the physical
layout of her business for those of the Council who have
not come down to see it. If any clarification of the letters
is needed, she would be happy to go over them later.
She gave background information regarding her shop and access-
ibility needs. There were several instances when Mr. Joseph
Ciaschi, owner of Clinton Hall and Mr. Bagnardi, Architect
could have given her indications of handicapped accessibility
plans and did not do so. If this information had been given
to her, she would not Have designed her space in the way it is
used now.
All of the first floor tenants are willing to sign an affidavit
confirming that at no time were they informed by Mr. Ciaschi
or the Architect or the City prior to receiving the letter
dated June 24th that handicapped access was to be through
their rear doors.
She urged Council to consider reinstating their original
resolution worded to include the ramping of the front of
Clinton Hall as the solution to handicapped access. She
urged Council to take a stand that will reflect well on Council.
and the City of Ithaca.
Jeff Furman, 208 Utica Street, Vice President of Ben & Jerry's
Homemade, Inc., spoke to Council regarding handicapped access-
ibility at Clinton Hall. He built his store with the knowledge
given to him that handicapped accessibility would be through
the front of the building. He does not understand how he
can go through the building permit process, get it changed,
get ordered that he only has 30 days to change his store
and also how the original plans which were for a ramp could
have been changed without anybody informing the tenants and
then asking the tenants to bear the burden of making the
change.
He requested that the fine on Ben & Jerry's store, which
could be as high as $500 a. day be held in abeyance until
this matter can be resolved.
Tom Seidner, owner of Borealis Book Store, spoke to Common
Council regarding handicapped accessibility at Clinton Hall.
He stated that the alleyway which is supposed to be used
for handicapped access is also a right -of -way for a church
parking lot. There are construction vehicles parked in that
driveway thereby not leaving enough room for wheelchairs
to get by. The alley is not lit, it is long and dark. The
landlord locks the back door to the building at 6:00 p.m.
each night. A ramp needs to be on the front of the building
and he would hope the City can resolve this matter very soon.
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-11- October 20, 1987
City -wide Moratorium on Large Development Projects Until
Common Council Adopts a Site Review Process for Those Projects
By Alderperson Booth: Seconded by Alderperson Dennis
RESOLVED, That the Common Council refer to the Planning and
Development Committee and to the Planning Board the issue
of whether the Common Council should adopt a City -wide mora-
torium on the issuance of building permits and other City
approvals or permits for large development projects in order
to provide sufficient time for the Council to consider and
adopt an appropriate site review process to govern the develop-
ment of such projects; that the Committee and the Board begin
their assessment of this issue by considering that the term
"large scale projects" includes those activities listed as
Type 1 actions in Section 36.5(B) of Chapter 36 of the Municipal
Code (Environmental Quality Review), but that the Committee
and Board not be bound by that listing of actions; that the
Committee and Board begin their assessment of this issue
by considering a moratorium that would last approximately
six months, but that the Committee and Board not be limited
from considering a longer or shorter moratorium; and that
the Committee and the Board report and make specific recommenda-
tions to the Council on this matter not later than the Council's
December, 1987 meeting.
Alderperson Killeen stated that the motion is futuristic
and the Council has heard several people speak today on the
Valentine Place issue and the construction that is underway.
He asked "Where does all this information go ?" The Council
is talking about a December 1987 deadline but the invitation
that was sent to many people by the City of Ithaca posted
notice to comment to any duly constituted board or the Board
of Zoning Appeals for up to thirty days; tomorrow is that
thirtieth day, who is reviewing, who is assessing? What
about the major development of Valentine Place? Does it
just proceed? Should the City,not, to keep good faith, to
suggest that the testimony that has been invited, that has
been received, that's duly recorded by the City Clerk, that
it has some meaning, some relevance and that it will be con-
sidered or is it a foregone conclusion that this is underway?
Should the City not get a cease and desist order so that
more irrevocable site development won't occur.
383
City Attorney Nash responded in regard to the notice that
was sent to Valentine Place residents, that it is pursuant
to a Common Council ordinance passed a few months ago
directing a developer or any person who comes in for a building
permit, that they can provide that notice to neighbors within
200 feet; it is not mandatory that he or she do that, but
they can do that, thereby giving a 30 -day period for someone
to challenge the issuance of that building permit. Traditionally,
the issuance of a building permit is reviewable by the Board
of Zoning Appeals if there is some dispute of what zone
the property is in, what type of development is allowed within
that zone, whether proper set -backs have been taken into
account.
The question in this instance seems to be should there have
been an environmental review taken pursuant to the City's
recent change on the definition of ministerial act and the
definition of critical areas. His understanding is that
environmental review decisions would not be reviewed by the
Board of Zoning Appeals; they deal with zoning matters, zoning
decisions made by the Building Commissioner. He thinks the
notification still holds but he doesn't think the Board of
Appeals could deal with the environmental issues. They could
deal on whether or not it's too dense under the zoning ordinance
or there are proper set -backs or it's not in a proper zone.
16 I
-12- October 20, 1987
He does not think Common Council has jurisdiction generally to
review the decisions of the Building Commissioner. If it's
a zoning matter it goes to the Board of Zoning Appeals, if
it's a building or housing code matter, it goes to the Housing
Board of Review.
Alderperson Schlather stated that assuming there is a question
of subdivision, even though it's unclear whether or not a
long term lease is subject to subdivision regulations, to
what entity would the aggrieved citizen file this appeal -
the Planning Board? The concern has been raised that perhaps
this is tantamount to a subdivision and it is a subdivision
without going through the subdivision1process and if in fact
there is to be the creation of a new street over the existing
public right -of -way that may even add fuel to the argument
that it is indeed a subdivision. Subdivision is not subject
to review by the BZA, the only entity that reviews subdivision
is the Planning Board. On the other hand is the Building
Commissioner authorized to issue a permit, if in fact, sub-
division is required but has not been done? And if the
Building Commissioner is not authorized to issue a permit
under those circumstances then that would throw it back under
the BZA court because it would have been an improper issuance
of a building permit.
Alderperson Schlather then asked City Attorney Nash if what
he is saying is that he is not sure if an appeal to the Planning
Board would provide a venue for this issue and if it's conceivable
that the only appeal would be an appeal to the court.
City Attorney Nash responded "yes"
Alderperson Schlather further stated that if in fact subdivison
review is an issue here, it would seem to him that the people
who are aggrieved would file an appeal in writing with the
Planning Board within the thirty day period and that would
be a good starting point. 1J
Alderperson Booth remarked that he thinks there is plenty
of grounds for revoking the permit. He thinks the Mayor
and the City officials have those grounds. If there is
liability out there in terms of a lawsuit he thinks that
is part of the reality of City government. He would hope
that someone in City government can see a way to revoke the
permit that was not wisely granted.
City Attorney Nash stated that in his opinion, at this point,
the only person who would have authority to revoke that permit
would be the Building Commissioner. He does not think the
Mayor has the authority to revoke that building permit. It's
not a zoning matter and he's not sure that the City has any
other appropriate Board that can revoke that building permit.
Alderperson Dennis stated that if Building Commissioner Hoard
were to revoke the Novarr building permit he would like the
Building Commissioner to know that there is some sense of
support for him from the members of Council.
Alderperson Dennis questioned the notice that was posted
for the permit. His understanding is that the notice is
not mandatory. He asked if Charter and Ordinance devised `t
this notice.
Alderperson Schlather responded that the form was devised
administratively but the purpose was if the notice is sent
;then there is a 30 -day appeal period. If the notice is not
sent then the appeal period can continue indefinitely So
the committee was simply trying to create a mechanism whereby
-13- October 20, 1987
there could be come certitude on the part of both the public
and the applicant with respect to decisions made by the
Building Commissioner.
Discussion followed on the form of the notice that is posted.
Alderperson Hoffman asked City Attorney Nash if it is his
opinion that the opening of the right -of -way on Woodcock
Street would require action by Council or any other body.
City Attorney Nash responded that he did not think it did
require action. It's basically a very short stub of a street
that's been on maps for some 80 years. It's there, it's
available. If the City wanted to open it and make it a City
street, he is not sure exactly what the procedure would be
for that. It's been dedicated previously. We are not talking
about opening a new street. It was to provide access in
conformance with municipal standards so that it would provide
access for emergency vehicles. It basiially opens about
30 feet and the rest of the roadway continues on private
property.
Alderperson Hoffman asked if City Attorney Nash is saying
LO that any private developer can come forward and open a street.
= City Attorney Nash responded that to provide access to a
m lot, yes. You can't build on a platted street without specific
Q approval, that is in the general City law. You can't block
that access but he is not aware of any reason why you couldn't
use it. The City has done it in the past in various situations.
Alderperson Schlather requested that the City Attorney issue
an opinion as to whether or not the subdivision review mechanism
applies to long -term leases.
City Attorney Nash responded that he can not find any case
where it has ever been applied in that manner. lie has not
been able to locate a copy of the specific lease we are talking
about. It's not recorded in the City Clerk's Office and
he could not obtain it from Mr. Novarr's attorney. He doesn't
see anything that would authorize calling a long -term lease
a sale or other division of property that gets into subdivision.
He is not saying that a court would not say that at some
point but he has never seen it done.
Mayor Gutenberger asked that before Council adjourns that
he be given an opinion on the matter and also the matter
that was raised by Alderperson Booth of the Mayor or any
other person's ability to revoke a permit.
Alderperson Lytel asked if Council has reasonable questions
on the Short EAF that was filled out, isn't that an opportunity
for the Council to question whether or not our process has
been adequately fulfilled?
City Attorney Nash responded that the issuance of a building
permit generally is a ministerial act, which means that it
does not require discretion. Common Council designated areas
in which they stated that issuance of a building permit was
not a ministerial action. They designated it in a way that
the Building Commissioner obviously has to exercise some
discretion as to what was substantially contiguous to a gorge
area or in a gorge area and what was not. He exercised that
discretion and determined that this project, once it was
moved from 17 feet to 70 feet back was not in an area that
was substantially contiguous to the gorge area. Once he
determined that there was no environmental review necessary.
•
3 811
-14-
October 20, 1987
In order to revoke that building permit, in his opinion,
the City needs to have some indication of a clear error or
mistake made.
Alderperson Peterson urged the residents not to give up with
submitting their appeal, to keep it on the environmental
level and look into issues that the City Attorney has explained
might be more clearly appropriate for the Board of Zoning
Appeals to review.
Alderperson Booth stated that }le thinks there are clearly
three errors. If that is a public street, public property,
public right -of -way, it seems that there is a substantial
question if a private individual has the right to use that
as a driveway. There are specific provisions in the municipal
code for opening public streets.
Secondly, in his opinion, this is a subdivision. The lease
is potentially an effort to circumvent the intentions of
the City's subdivision law.
Thirdly, even absence the gorge question, he would suggest
that the amount of decision making that has gone into this
particular decision, totally removes the argument that this
is a ministerial act. This is a decision that was filled
with a variety of exercises of discretion. It is a building
permit and most building permits do not involve the exercise
of discretion. This one involved exercise of discretion
in a number of ways and is not a ministerial act and because
it is not a ministerial act then the City's S.E.Q.R. ordinance
automatically kicked into place because of the magnitude
of this project.
Alderperson Hoffman stated that in his opinion the Building
Commissioner to narrowly defined the project. He considered
it to be only the building structures. The language of our
ordinance says that any land alteration, new construction
or significant expansion of existing structures is covered
by the new amendment. If the Council feels it is not appro-
priate to pass a resolution about this subject right now,
he would hope that individual Council people would communicate
their feelings to the Building Commissioner and offer the
kind of support that Alderperson Dennis had suggested and
if the Building Commissioner agrees with us, the building
permit should be suspended or revoked.
A vote on the resolution resulted as follows:
Carried Unanimously
ADJOURNMENT:
On a motion the meeting adjourned at 6:45 P.M.
Callista F. Paolangeli.
City Clerk
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