HomeMy WebLinkAboutMN-BZA-2000-02-16 ,,,,,, REUMN - 1
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`oq ��.... . CITY C!ERK'S OFFI F
CITY OF ITHACA
108 EAST GREEN STREET
ITHACA, NEW YORK 14850
BOARD OF ZONING APPEALS TELEPHONE: (607)274-6508
FAX: (607)272-7348
February 16, 2000
John Powers
106 W. Buttermilk Falls Rd.
Ithaca, NY 14850
John Kadar
112 W. Buttermilk Falls Rd.
Ithaca, NY 14850
Margaret Rumsey
110 E . Buttermilk Falls Rd.
Ithaca, NY 14850
RE : Board of Zoning Appeals meeting of February 8 and 10, 2000
Appeal Number 2446
Dear Mr. Powers, Mr. Kadar, and Ms . Rumsey:
The Board of Zoning Appeals considered your request for an
interpretation of the acting building commissioner' s
determination regarding the issuance of a fill permit for work
at 398-400 Elmira Road. The decision of the Board was as
follows :
Resolved, that the Board of Zoning Appeals grant the appeal
requested in Appeal Number 2446 for the property at 398-400
Elmira Road, with the following findings of fact :
1 . The appellants are owners of property within 200 ' of the
property where the work is being undertaken. The appellants seek
an interpretation of the acting building commissioner' s decision
and request that we determine that the decision issuing the fill
permit, development permit, or building permit, was improper,
under three different provisions of the city code .
2 . The first provision to be considered is 325-27 .E . (1) (c) [3] .
That provision provides that no fill is permitted if it reduces
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John Powers February 16, 2000
John Kadar
Margaret Rumsey Page 2
RE : Board of Zoning Appeals meeting of February 8 and 10, 2000
Appeal Number 2446
the capacity of a floodway, increases flood heights, increases
velocity or obstructs, catches or collects debris which will
obstruct the flow under flood conditions in an FW-1 zone .
3 . Our first question was whether the property for which the
permit was issued was in an FW-1 zone . The FW-1 zone is defined
by the zoning statute as a zone delineated on a map entitled the
Floodplain Zoning Map which is on file in the office of the city
clerk. In fact, there is no map called the Floodplain Zoning Map
on file in the office of the city clerk. However, there are
provisions in the zoning code regarding the FW-1 zone and the
official City of Ithaca zoning map also refers to an FW-1 zone
and delineates an FW-1 zone . We determine that the map to use in
discerning the boundaries of the FW-1 zone, therefore, is
the official map of the City of Ithaca and we will use that map.
4 . The property owner and/or contract vendee of the property
being developed, Widewaters Route 13 II Company, LLC, claims
that there is no FW zone because there is no Floodplain Zoning
Map.
5 . For us to hold that would be to invalidate large portions
of the zoning statute that have been passed by Common Council
and rather than to overturn the statute we prefer to find the
meaning in the statute . Since Common Council was aware of the
zoning map and the zoning map was properly promulgated when they
passed the statute, and they called this zone the FW-1 zone, we
are assuming that they are referring to FW-1 on the zoning map.
6 . The Floodway 1 zone is recognized by the city during
testimony as being in existence, and it is recognized by
Widewaters in their own site plan development map created by
Costich Engineering and submitted to us .
7 . The city and Widewaters also note that 325-19 permits the
extension of less restrictive zoning 30' into a more restrictive
zoning area where a lot is located within two zones .
8 . However, 327-27 .E. (1) (a) [2] provides that this section
shall take precedence over any other zoning or statute or
ordinance to the extent that they are inconsistent . In fact, we
find that this provision, 325-27 .E. (1) (a) [2] actually applies to
325-27 .E. (1) , the rules for the floodway zone and for regulating
John Powers February 16, 2000
John Kadar
Margaret Rumsey Page 3
RE : Board of Zoning Appeals meeting of February 8 and 10, 2000
Appeal Number 2446
the floodway zone and to the extent that the rules for the
floodway zone are inconsistent with other rules in the zoning
act, the rules for the floodway zone will take precedent .
Therefore we will not permit the use of 325-19 to overrule the
rules in the floodway zone .
9 . Widewaters ' counsel argues that 325-27 .E. (1) (a) [2] shall
take precedence only in terms of delineating the zone, and when
it says "this section" , "this section" refers to delineation of
the floodway zone, FW-1 . We disagree, but even if the provisions
of this section only meant the delineation of the floodway zone
it would take precedence over 325-19 .
10 . The issue before us is the delineation of the floodway zone
and whether the rules shall apply where FW-1 is strictly drawn
or whether the rule shall apply in FW-1 minus 30' because of
325-19 . We determine that even if this section only takes
precedence in matters concerning the delineation of the zone,
that still 325-19 has no effect here . As a result, in order to
issue a permit to fill in the FW-1 zone, that permit must
indicate that it did not reduce the capacity of a floodway, etc .
as required by 325-27 .E . (1) (c) [3] .
11 . No specific evidence was given to the acting building
commissioner to make such a determination and in fact, no
specific determination on that matter was made . We reviewed the
evidence that was submitted exhaustively, searching for evidence
that may have gone to these issues and searching for
determinations within the acting building commissioner ' s permit
and other documents that reflected determinations on these
issues but found that there was no specific determination on
these very specific issues and no specific evidence that would
have supported any determination.
12 . The second point of the appellants is that a special permit
is required by 325-9 . C. (1) (i) for all new construction,
improvements, alterations, and repairs in an FH-1 district . In
order to determine whether a special permit is required we first
have to determine whether the permit was issued for and fill is
being placed in the FH-1 district .
13 . The counsel for the property owner and/or contract vendee
claims there is no FH-1 district because the zoning code, again,
John Powers February 16, 2000
John Kadar
Margaret Rumsey Page 4
RE: Board of Zoning Appeals meeting of February 8 and 10, 2000
Appeal Number 2446
in defining the FH-1 district refers to a Floodplain Zoning Map
on file in the office of the city clerk. There is no map on file
in the office of the city clerk with that title Floodplain
Zoning Map. The City of Ithaca zoning code also does not have a
zone marked FH-1 . FH-1 is referenced to in notes on the map but
there is no zone delineated FH-1 .
14 . The zoning code, in addition to referring to the Floodplain
Zoning Map which doesn' t exist, says that the delineation of the
FH-1 zone is based upon the land areas that are subjected to
inundation by the 100-year flood and are not included in areas
designated as the floodway zone FW-1 .
15 . Although there is no FH-1 on the City of Ithaca zoning map
and there is no Floodplain Zoning Map in the city clerk' s
office, the city has consistently accepted the fact that there
is in fact an FH-1 district .
16 . The acting building commissioner has represented to us that
the city uses a map called the Flood Hazard Boundary Map, FHBM,
to determine the bounds of the FH-1 district . The FHBM map is on
file in the city clerk' s office and was created in order to
permit the city to participate in the National Flood Insurance
Program. It was a map based on estimates and guesses, it was not
a map based on engineering studies . In 1981 it was replaced by a
map called the FIRM map, which stands for Flood Insurance Rate
Map, which was based on engineering studies . The FIRM map is
also on file in the city clerk' s office .
17 . The zoning code states that the FH-1 zone may be modified
following the establishment of a FIRM map. It appears that no
official modification took place . However, the FIRM map is the
best evidence of the 100-year flood plain and it is the FIRM map
that we will apply in determining the FH-1 zone .
18 . Clearly the property in question is within the FH-1 zone,
which is referred to as zone A9 on the FIRM map and is within
the confines of the zone A9 . However, even if we use the FHBM
map we would have the same result according to the FHBM map
definition of the FH-1 area.
19 . The acting building commissioner relied on the FHBM map to
define the FH-1 Zone . The acting building commissioner stated
John Powers February 16, 2000
John Kadar
Margaret Rumsey Page 5
RE : Board of Zoning Appeals meeting of February 8 and 10, 2000
Appeal Number 2446
that the proposed project was not in the FH-1 zone and issued
the fill permit accordingly.
20 . When we looked at the FHBM map, we found that FH-1 area as
used by the city there is similar to the FW-1 area on the city
zoning map.
21 . The FH-1 area as used by the city on the FHBM map is larger
than the FW-1 area on the City of Ithaca zoning map. Therefore,
the property is within the FH-1 area. It is also within the
city' s definition of the FHBM. Therefore, the property is within
the FH-1 area.
22 . The appellants claim that a special permit is required
because fill is an improvement to the property. There is no
definition of improvement in the zoning code . A dictionary
definition of improvement, a common sense one, is to increase
the productivity or value of land. Certainly engineered fill
would increase the productivity or value of land. We reject the
acting building commissioner ' s use of the definition of
substantial improvement in Chapter 186, to define improvement
here, and we don' t think that improvement has to be improvement
to a structure simply because construction, alterations, and
repairs are improvements to a structure . If Common Council
wanted only to consider improvements to structures they would
have said so.
23 . Therefore, a special permit was required. No special permit
was applied for or obtained.
24 . The appellants claimed that no development permit was
issued pursuant to 186-12 of the city code, or, if one was
issued belatedly, they amended their appeal to appeal from the
issuance of it . At the time of the appeal no so-called
development permit was issued but we will consider the building
permit issued for the fill , fill permit, to be a development
permit and determine whether it meets the requirements of
186-12 .
25 . A development permit was issued after this appeal was
filed, after a fill permit was issued, and certainly before any
special permit has been applied for or issued.
John Powers February 16, 2000
John Kadar
Margaret Rumsey Page 6
RE : Board of Zoning Appeals meeting of February 8 and 10, 2000
Appeal Number 2446
26 . But even if we looked at the original fill permit as a
development permit to see whether it complies with the
requirements of 186-12 , it doesn' t, and therefore it is not
valid. 186-12 requires a development permit before the start of
construction or any other development within the areas of
special flood hazard, and the area of special flood hazard is
defined based on the 1981 FIRM map. Clearly this property is
within that area.
27 . Section 186-12 relays the plans required, the application
required for the permit . Section 186-13 recites the duties of
the local administrator in reviewing the permit application. One
of the duties, 186-13 .A. (2) is to determine that all necessary
permits from other agencies have been obtained.
28 . In fact, the special permit as required by the zoning code
for any improvements in FH-1 was not obtained, and therefore the
development permit was issued inappropriately and prematurely.
29 . In addition, the local administrator must review the permit
application to determine if development adversely affects areas
of special flood hazard. The statute specifically states that
adversely affects means physical damage to the adjacent
property. The appellants claim that the fill will reduce the
capacity of the floodway and is likely to cause flooding and
damage to their nearby properties .
30 . The statute further states that an engineering study may be
required of the applicant for this purpose . As far as we can
tell no engineering study was required of the applicant . The
permit was issued without any requirement for an engineering
study and without any specific determination that no physical
damage would result to adjacent properties .
31 . After the permit was issued, a planner for the city
contacted counsel for Widewaters, the property owner and/or
contract vendee, and suggested that an engineering study be done
or that Widewaters respond to neighboring property owners '
concerns that flood damage may result to their properties .
Counsel for Widewaters ' response was to cite a case which would
indicate that Widewaters would not be liable if there was damage
to other property.
1
John Powers February 16, 2000
John Kadar
Margaret Rumsey Page 7
RE : Board of Zoning Appeals meeting of February 8 and 10, 2000
Appeal Number 2446
32 . The permit was issued without the determination, that there
would be no physical damage to adjacent property. In fact, the
question arose after the permit was issued, the city voiced some
concerns, but made no specific determination.
33 . It should be noted that the Flood Damage Prevention
Ordinance, under section 186-17 .B. , reads "the Board of Zoning
Appeals shall hear and decide appeals when it is alleged there
is an error in any requirement, decision or determination made
by the local administrator in the enforcement or administration
of this chapter. " We relied on this to hear this part of the
appeal under Section 186 .
Conclusion:
For those three reasons the permit for fill should be
revoked and the appellants ' appeal should be granted.
Vote : 3 yes votes; appeal granted.
Sincerely,
477Phyllis Radke, Acting Secretary
Board of Zoning Appeals
PR/kb
cc : Marco Marzocchi, Widewaters Route 13 II Company, LLC
NOTE 1 : The date of this letter is the date of filing for the
purposes of appeal of this decision. There is a statute of
limitations on the filing of an Article 78 appeal of thirty (30)
days from the filing of this decision.
,
1 5 200E ';'�:.
1
CITY
C!ERK'S OFFICE 1 January, 21 2000
Common Council
City of Ithaca
108 East Green St.
Ithaca, NY 14850
I am writing to urge common council to adopt a city
ordinance supporting a living wage for the city of Ithaca.
The goal of a living wage is to pay all full time workers a
high enough wage so that they can support themselves without
living in poverty. Someone that works full time should never
fall below the poverty line.
The hourly livable wage varies in different states and
cities. A study done in Ithaca in 1998 for the Alternatives 1
Federal Credit Union estimated that a livable wage for one
person in Tompkins County is $16,500 per year, or $7.94 per
hour. Someone with dependents would need to earn more.
Child care costs average $4,432 per year and other expenses
such as food and health care would double.
The present minimum wage is not enough to comfortably
support individuals or families. Even with the raise to
$5.15 per hour, the current minimum wage is twenty six
percent lower than it was in 1980 (after correcting for
inflation. ) New York State has the greatest income disparity
in the country. The richest twenty percent of families have
incomes twenty times as large as the poorest twenty percent
of families. The poor in New York State are among the
poorest in the country, with an average income of $6,787 per
year compared to the national average of $9,254. Less then
one third of the women who leave welfare earn more then
$9, 000 in the first year. Two-thirds earn less than $6, 000,
showing that a job at minimum wage is not an escape from
welfare or poverty.
The concept of a living wage is gaining support in city
councils across the country. In most areas, contractors who
receive tax money as payment would be required to pay their
employees a livable wage plus a contribution to medical
coverage. More then forty cities have implemented city
ordinances requiring a livable wage for all city employees
and contractors, and many more are debating such proposals.
The Alternatives Federal Credit Union has done a
thorough study of the livable wage for Tompkins County and
•
would be a valuable resource for Common Council as you begin
to investigate this important issue. I urge you to consider
and support a livable wage for the city of Ithaca and
Tompkins County.
Sincerely,
Emily Finegan