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HomeMy WebLinkAboutMN-BZA-1980-06-02 I'. II TABLE OF CONTENTS I; i iMINUTES OF THE MEETING OF THE BOARD OF ZONING APPEALS, ITHACA, NEW YORK - JUNE 2 , 1980 Pie ij'I APPEAL NO. 2-2-80 JVRC Enterprises (no one showed) 2 602 W. Buffalo Street i 1APPEAL NO. 5-2-80- William T. Pritchard (no one showed) 2 304-306 S. Cayuga Street i �I ; APPEAL NO. 1302 Richard T. Cutia 2 2061-, Second Street i! APPEAL NO. 1302 Executive Session 43 Ir liAPPEAL NO. 6-1-80 Davnek Corp. (On The Waterfront) 44 1 706 Willow Avenue ( APPEAL NO. 6-1-80 Executive Session 49 l Ii IAPPEAL NO. 6-2-80 Mobil Oil Corporation 50 540 W. State Street l ;! APPEAL NO. 6-2-80 Executive Session 60 I I I ! APPEAL NO. 6-3-80 Albert $ Myrtle Johns (no one showed) 61 I 409 W. Seneca Street (Seneca Printing) ! APPEAL NO. 6-4-80 Dewart, Peterson $ Creighton 61 (Pine Tavern) (no one showed) i; 201 N. Aurora Street I , APPEAL NO. 1304 Vi Deibler, Richard Inman, Alan J. Boardman, Jacqueline Wintermute & Robert L. Wanner 61 ! 815 S. Aurora Street {i �I ' APPEAL NO. 1304 Executive Session 85 i ( CERTIFICATION BY RECORDING SECRETARY 86 I! ; ; 1 I ; �i li (i i BOARD OF ZONING APPEALS �i COMMON COUNCIL CHAMBERS CITY OF ITHACA, NEW YORK l,1 JUNE 2 , 1980 I '[CHAIRMAN AMAN: I will call to order the June meeting of the Ithac 'Board of Zoning Appeals . The Board operates under the provisions .1 of the Ithaca City Charter, the Ithaca Zoning Ordinance and the ;Ithaca Sign Ordinance. Present this evening are all six members !of the Board Alfred Aman, Jr. , Chairman Dr. Martin Greenberg Ms. Natalie DeCombray Mr. Morris Angell Mr. William Wilcox Mr. Joseph Gainey Mr. Thomas Hoard, Building Comm. f and Secretary to the Board I Mrs . Barbara Ruane , Recording Secy �!It is necessary that you have at least four of the six votes for any variance to be authorized. For those of you who are unfamiliar with ( our proceedings let me very briefly tell you how we will hear the cases. We ask that the proponents of the variance come up and speak first and very succinctly tell us just what it is that you jwant the Board to do and your reasons for our action. Then we will ask you to respond to questions from the Board, if there are any. iAt that point, after we finish with our questions, we will ask those s !who wish to speak either for or against the proposed variance to �Icome forward - firsth those for the variance and then those against the proposed variance. One thing that we do ask is that , although �we don' t run the meeting according to strict rules of evidence , we �do ask that everyone come forward, state their name and address !your remarks are recorded and we do have a record here - tape record- ing of all your remarks R therefore it is very important that we no get involved in a dialogue between the audience and members of the JBoard up here or whoever is speaking at the microphone up here. Anyone wishing to say something, you are entirely welcome and you have that right , all I 'm saying is that you' ll have to come forward, stateour name and address and talk into the microphone here so that Y p we ' ll havea complete record of the proceedings. After we have 'heard all of the cases , the Board meets in executive session to deliberate and that is in private, After that point we will again (be in session and I will announce the results of the deliberations. i i; I - 2 - � If you don't wish to stay around to find out how the case came out lnaturally those who are participants will be notified by mail or y u 11could call Mr. Hoard' s office tomorrow. Mr. Secretary, will you ! call the first case? SECRETARY HOARD: The first case Mr. Chairman is appeal number 2- 2-80: Appeal of JVRC Enterprises for a variance and r Sections 34 . 4b , 34. 5 , 34 . 8 and 34 . 3 to permit I retention of the existing sign at 602 West Buffalo Street (Joe ' s Restaurant) in a B-4 (business) use district. The existing sign r projects more than eighteen (18) inches from the face of the building, exceeds the total area permitted, and projects within eighteen (18) inches of a sidewalk. Is there anyone here on that case? (no one appeared) The next case is appeal number 5-2-80: Appeal of William T. Pritchard (d/b/a William T. Pritchard, Inc. ) for a sign variance under Section 34 . 4B and 34 .6-A-1 to permit the re- tention of two signs at 304-306 South Cayuga Street and a large free-standing sign at the i( same address . Currently five (5) signs are located on the premises , three (3) above the i permitted number in a B-4 (business) district. FIs there anyone here to speak on that case? (no one appeared) '! The next case is appeal number 1302 : Appeal of Richard T. Cutin for a use and area r ! variance under Section 30. 25 , Columns 2 and 3 ii (permitted primary and secondary uses) and Columns 4 , 6 , 7 , 10, 11 , 12 , 13 and 14 , to permit continued operation of a produce busi- ness , and an addition to the existing structu e at 2062 Second Street (Cayuga Foods, Inc. ) . The property is located in an R-3b (residential) use district in which a produce business is n t permitted, and the property is also deficient in required off-street parking, minimum lot I size, minimum street frontage , maximum lot coverage and front , side and rear yard setbac s . IMR. RYAN: Mr. Chairman, I 'm John Ryan, Jr. I am an attorney from i Cortland, New York and I am related to Mr. Cutia in that I am his brother- in-law and I am representing him here tonight in regard to his application. I have a prepared statement which I would ask to distribute to the members of the Board. Can I pass them out? CHAIRMAN AMAN: Yes. IMR. RYAN: May I state in beginning that the application that was read, I heard mention of a structure - of some structure attached to the building - we are withdrawing our application for continu- ance of that structure . My client , Richard Cutia is the owner and I l - 3 - i (! operator of a produce business at 206i Second Street, Ithaca, New I York. Mr. Cutia' s lot is located at the rear of a lot owned by ;; Walter Gangl. Mr. Cutia' s lot has a barn located on it and it is 1from this barn that he operates his produce business. Mr. Gangl i ! has a house located on his lot which he rents as income property. ! MR. GAINEY: Before we go any further, he rents it but he does not live at this location? IMR. RYAN: That is correct, as I understand it. I IMR. GAINEY: What location does he live at? 'MR. RYAN: I do not know. I 'm sorry. He doesn't live in the area hof this particular piece of property, he lives someplace else . He lis a student at Cornell Law School and he may live with his father , (but I am not sure of where he lives. This is a piece of property 1which he rents to a tenant. MR. GAINEY: But he operates a business at this location? i MR. RYAN: Excuse me? MR. GAINEY: But he operates a business at this location? MR. RYAN: No, no. Mr. Cutia operates a produce business in the blot at the rear of this business. Mr. Gangl is just the owner of the house that is in front of this property at 206. Mr. Cutia's Ilot has the barn located on it and it is from this barn that he �j loperates his produce business . Mr. Gangl has a house located on ,his lot which he rents as income property. Mr. Cutia' s lot has no frontage on Second Street and he reaches that street by means of a i 1Iright,of-way which runs from his property to. Second Street along i,,th.e southerly side of Mr. Gangl ' s lot . At one time in 1912 both !Mr. Cutia' s lot and Mr. Gangl' s lot were joined into one piece of i (!property. On January 22 , 1912 a George Farrell who owned both i properties sold the property which is now owned by Mr. Cutia, to !Charles C. Howell and the two lots have been owned by different !owners since that time. The deed which separates the two properties i gave to Mr. Cutia' s predecessor a title a "perpetual right of a driveway for horses and wagons along the south side of the premises .' land that has been used as the access from Mr. Cutia' s property to Second Street since 1912 . In 1956 the barn and lot which Mr. Cutia I� li 4 - I '1now owns was purchased by Jessie Snyder who operated a produce I business at that location for six years until 1962 when Mr. Cutia ,hand some of his relatives who are in the produce business in Cort- ; jjland purchased Jessie Snyder' s business and his property. At that i (Mime Mr. Cutia was represented by my father. Mr. Cutia became the (isole owner of the business in 1966 , and since that time has con- ducted a wholesale produce business at that location, very similar I Ito the one which was operated by Jessie Snyder before him. Occa- isionally the premises are visited by customers and persons who mak (retail purchases of produce. There is not now and never has been fany sign placed on the premises and no retail sales are encouraged. '{What I mean by that is that occasionally somebody will walk in and `ask to buya head of lettuce -� a neighbor or something like that g g and he wouldn' t tun them away, but he does not conduct any retail business on the premises as such. I am just saying that - I can' t say that no one has ever bought made a retail purchase there . IMr. Cutia works at the business and has one or two employees. He also has a bookkeeper who comes in to the property to do the books and his son also helps him on occasion. He has two produce type van trucks which he uses in his business and a pick up truck. He !occasionally drives his car to work. The produce trucks are some- 1 'times parked on the business location and sometimes at his home. There is usually at least one produce truck parked in front of the doors of Mr. Cutia' s business , during the nighttime hours , sometimes both trucks are there but usually there is - I would say that it is fair to say that there is always one there. Mr. Cutia had no jtrouble or complaints about the operation of his business or the i Ilocation of the same until some time after the house in front was purchased by Mr. Gangl. In 1974 , Mr. Gangl and his father, Leo Gangl who is an attorney, began to complain that Mr. Cutia was trespassing on the Gangl property and causing them damage; Mr. IGangl senior is a lawyer and his son, ,the owner of the lot in front, his in law school. Since 1974 they have used every means they can hink. of to drive Mr. Cutia out of this property. They have com- Iinenced a lawsuit against him claiming that he cannot use the 1 E ii i S li ij driveway because it was restricted to horses and wagons in 1912 . lWe have appeared in Court in Ithaca, Binghamton, the Appellate Di- vision in Albany and we have not yet even gotten to a trial of the jmatter. The Gangls have complained to the police, various health lagencies and licensing agencies and finally to the building depart- ,�ent of the City of Ithaca when it was discovered that the Zoning I�Ordinance for the City of Ithaca went into effect in 1950 and the �roperty was not used as a produce business until Mrs . Jessie Snyder Purchased it in 1955, and I 'm coming to my reason for being here Tonight. Mr. Cutia knows that the property has been used for a koduce business for twenty-five years. We also believe that the �roperty was used for the storage of freight prior to that time , �owever the building department instructed Mr. Cutia that if he is to continue at this location, he must obtain a variance and thus This application. Mr. Cutia' s application is for a use variance and for an area variance. In regard to use, it should be pointed out that Mr. Cutia is not asking for permission to establish a new se in the District. He is only asking for permission to continue use which has existed for twenty-five years. A proponent of a request for a use variance must show practical difficulties . Mr. uta' s building is a barn. It is located in a residential area an ould not be converted to a residence because of its size, conditio �nd total lack of any design or facilities that would lend itself o residential use. It is a barn and no more than that. The barn pccupies most of the lot and certainly there is no room for the ��onstruction of a residential structure on any area of the lot other than that which the barn sits on at the present time. Since he property is independent of any other lot or building it would Pe of no value to another residential structure or a garage. If his application for a permit was denied, one might say, well its building there that you might be able to rent but that is a com- erci,al use and would be as much in violation of the Zoning Ordinance s would be the conducting of a business on that location. So that feel that unless Mr. Cutia is permitted, by variance , to continu o use the property that he would have very little or no constructive i i' 6 - i i Buse of the property since the property is independent of any other i11ot or building it would be of no value to another residential !I �Istructure as a garage. Because of the lack of frontage on a street , it is our belief that the property could not be used for residential ,purposes and the small size of the lot and the building would not ;lend the same to residential use. This property is unique in that pian examination of the surrounding properties does not indicate any I property similar to this one. It is a special circumstance that Ithis property has existed as a produce business at this unusual i ;location for these many years. If Mr. Cutia is not permitted to !continue his use of the property for his produce business, we be- lieve that the property would be rendered valueless. This location is the only location owned by Mr. Cutia and if he cannot use this roperty for his business , then he would be forced to purchase or gent another location or go out of business and probably he would ave to go out of business - it ' s not a very profitable venture at best and Mr. Cutia is here and I think brought your income tax . . . �ou didn't? Alright he can tell you about his income. The cir- �cumstances which pertain to Mr. Cutia' s property do not pertain to bther properties in the neighborhood because all of these propertie ave residential structures existing on them or sufficient room to onstruct such_ structures . This is not a residential structure. I he granting of this variance would be in harmony with the general intent of the Zoning Ordinance and will not be injurious to the neighborhood or otherwise detrimental to the public welfare. A ood determinor of this is that almost every neighbor - under the aw we were required to cite everybody, I think it was within 200 wns property within 200 feet of this location and that was a lot Df people. Mr. Cutia went around to see all of those people that e could. Some of them were absentee owners and lived far away, ut he went to see all the people that he could and everyone that y u sked signed the petition, is that correct? Tom, do you have the }petition? (;SECRETARY HOARD: Yes I do. i R. RYAN: Okay, there is a petition here that is signed by the s I'. I' - 7 - i !immediate residents in the neighborhood. I just refer to the !petition - I think there were thirty some people that you had to {serve? How many signed the petition? SMR. CUTIA: Twenty-five. SIR. RYAN: Twenty-five? Alright. Did anyone refuse to sign the �lpetition? fI 11MR. GAINEY: If you are going to correspond with him, why don' t you li ( have him come up and identify himself? (?MR. RYAN: Can you come up here Dick? MR. WILCOX: Did the tenant of the house sign the petition? I MR. RYAN: I don' t know that. Did the tenant of the house sign the petition? MR. CUTIA: No she didn't. MR. RYAN: Did you ask her to sign it? IMR. CUTIA: No I didn' t. Richard Cutia, I 'm the owner of the property at 2061-, Second Street , known as Cayuga Foods . MR. RYAN: Dick, will you tell them about the petition - what hap- pened with that? MR. CUTIA: Well , I just went and I talked with all the people and I found about twenty-six of them and I had twenty-five who would sign it. And one didn' t understand it and would not sign it. MR. RYAN: Would it be appropriate if he were to read the petition or the first part of the petition? 'MR. GAINEY: I think we can pass it around. MR. RYAN: Okay, that will be fine. Any other questions on that? i IMR. GAINEY: How long have you owned this property? I MR.. CUTIA: I 've owned it since 1962. 18 years. SMR. GAINEY: And you've operated the business since then? ( MR. CUTIA: Yes. ( CHAIRMAN AMAN Excuse me, does anybody else want to hear the 1petition, on the Board? IMR. WILCOX: No, send it around we can read it . IMR. GAINEY: Who owned the property before Mr. Gangl? IJMR. CUTIA: Mrs. Jennie Teetor. MR. GAINEY: Did you have any problems with her? I i - 8 IMR. CUTIA: None whatsoever. ii i AR. ANGELL: Where do you live Mr. Cutia? I ,IMR. CUTIA: I live in Etna, New York. i ' MR. WILCOX: Is the business growing? ,MR. CUTIA: No it is not, it is staying about the same. I!MR. WILCOX: Is the right-of-way a normal ten foot right-of-way i ; for wagons and horses? Is there a number of feet specified in the , deed? MR. CUTIA: No there is not. MR. GAINEY: How much traffic would you say is generated on a I� I" daily basis? l IMR. CUTIA: Pardon me? i MR. GAINEY: How much traffic would you say you generate on a ! daily basis? Ii MR. CUTIA: My truck goes in and out probably in and out twice a i day and maybe a couple of cars. 1MR. ANGELL: That' s two trucks twice a day? �MR. CUTIA: No, one truck twice a day, IMR. ANGELL: You say here you have two trucks, MR. CUTIA: I am not running one . I have a break down mechanical i failure with- one. CHAIRMAN AMAN: What is the size of that truck? You say it is a Ivan type truck? MR. CUTIA: Yes it is a 1980 - one-ton van with a twelve foot box Ion it. I IMR. GAINEY: Okay, what is this pick-up truck also? MR. CUTIA: I don' t have that any more, IMR. GAINEY: You have two van type trucks? MR. CUTIA: Right , one twelve foot and one sixteen foot. ' MR. GAINEY: You don' t have the pick-up truck. anymore? ,SIR. CUTIA: No, I= MR. RYAN: I 'm sorry that ' s my mistake, I thought you had one but iappa;rently you don' t, I IMS. DE COMBRAY: Can you tell us more about the nature of the lbusiness - what it entails? I; 9 - i' ! MR. CUTIA: It is a wholesale produce business . I deal mostly witli i• restaurants and institutions like Cornell and fraternities . And if we get orders daily and we deliver daily - six days a week. MR. GAINEY: How do you get your deliveries? i IIMR. CUTIA: I either go to Syracuse to pick them up or I have them i ' shipped in out of Philadelphia. SMR. GAINEY: And when they come in from Philadelphia, what do they ! come in on, a tractor trailer or truck or ? ! MR. CUTIA: Yes I usually meet them out in the street, or in Cortland. i �! MS. DE COMBRAY: Do they come very day? Does the tractor trailer ; come every day? , MR. CUTIA: No. Usually the truck that delivers to me is a twenty �ifoot, two-ton truck. ; MR. WILCOX: Mr. Ryan, when you were reading the sentence on page I 13 you said "condition and total lack of any design" and then you ; added your own words "facilities" is there some special signifi- i Cance for that? MR. RYAN: Yes , there is no gas . . . SIR. CUTIA: There is gas . fMR. RYAN: There is gas? There is no water facility - no water piles that go into the . . . IMR. WILCOX: There is no water and sewer? MR. RYAN: No sewer and we have to - no there is none. But we do ; have access to water next door for hosing out the coolers and stuf dike that. i !MR. GAINEY: But there is no water or sewer - what do you when you ihose out the cooler? Where does that stuff go? !MR. CUTIA: We just sweep it out.. i MR. ANGELL How about sanitary facility? Sanitary facilities - �none at all? I MR. CUTIA: There is no. We are in and out of the building - th 'building is not like an office where you go in and you sit for !eights hours a day. I mean, we are making deliveries in and out o Ithe building. We may be there an hour or two and that' s the most !you know - at one specific time. i I' li - 10 - i, ' MR. ANGELL: And that includes the bookkeeper and so on? 1: IMR. CUTIA: Yes - he is there two to three hours a day. Not every I'. day - every other day. i, jDR. GREENBERG: Is this an early morning operation? !!MR. CUTIA: Yes it is . Usually by one o 'clock we are through - ! one, one-thirty. 'I SDR. GREENBERG: When do you start? �!MR. CUTIA: When we go to the market it is 3: 30 in the morning. If iTR. GREENBERG: Does this activity take place around the premises .i 1Iat 3: 30 in the morning? IMR. CUTIA: Not it is not. Usually about 8 : 30 we are down there . 11MR. WILCOX: How about - has there been any attempt to negotiate ,with the neighbors on purchasing the property? That ' s not really our business here but I 'm just curious - have you had discussion ;with the immediate neighbors - maybe on settling? As you know we �1 ;have been given a quantity of material to study about this case well P I:ahead of time , so we are full of questions . Has there been any I �Idiscussion on it about a possible buy out of neighbors'; MR. CUTIA: No there has not. IDR. GREENBERG: Has there been any problem with the Health Depart- , hment with- regard to your operation? 1 {MR. CUTIA: None whatsoever, No, we 've been inspected by the Stat Land Federal and we've passed all of their inspections all their !requirements. i' MR. ANGELL: When you hose this out where does this water go? 'MR. CUTIA: Well the barn floor itself is probably say a foot and I lone-half above the driveway and it is not that much water - it' s n t ; i ja lot of water - you wouldn' t get any more water than after a small 's rain shower. It' s not a big area that we are hosing , it is only - IIthe cooler is only ten by twelve you know, we hose the cooler out gland the rest we sweep up. 'IMR. ANGELL: Oh, it is merely the cooler that you hose out? �i MR. CUTIA: Yes . L jMR. ANGELL: And you hose out what - the leavings from lettuce , and . . I IMR. CUTIA: Well , it is all swept up first . . . ; I ! - 11 - I ii 11IMR. ANGELL: And how is that disposed of? i' IMR. CUTIA: Garbage - I have a man that comes and picks up the ( trash four days a week there. ! MR. ANGELL: How' s that? iMR. CUTIA: I have a man that comes and packs up my trash four ! days a week. MS. DE COMBRAY: Did you have the same kind of business before you i ,! bought the property, in Etna or somewhere else? i !MR. CUTIA: I was - I worked at the business with my uncles . I di ! not own the business . I I +MS. DE COMBRAY: But be4ore that business on Second Street , did yo Ij also have a wholesale produce business before? IMR. CUTIA: No I didn' t. I worked with my uncles in the same type ,Iof business in Cortland, lMS. DE COMBRAY: I see, so you bought this from Mr, Snyder? MR• CUTIA: Right. ! CHAIRMAN AMAN: Have you done essentially the same volume of ! business since, let's say 1974 to the present? Have there been an major changes in your business in terms of volume or MR. CUTIA: I would say the last two years it has decreased, CHAIRMAN AMAN: Decreased? MR. CUTIA: Right. i MR. ANGELL: You said decreased? �!MR. CUTIA: Yes . IICHAIRMAN AMAN: Does that show up in any way as Let' s say, number i � of deliveries? i SMR. CUTIA: Yes it does, i ! CHAIRMAN AMAN: Or times that a truck might be going down the right - , of-way'? igh -lof-way? MR. CUTIA; Yes it does , Like I said, it ' s about - in and out ! twice a day. And as far as personal, you know, my own car or any- thing that I drive - it is parked on the street and there is plent of room on the street, You know, I don' t use the driveway R the �lright,of-way myself, just for purposes of delivery. i �MR. WILCOX: You mentioned financial data - is there some more? i i j' i!. 12 - I Ii I' !! MR. CUTIA: I didn' t bring my tax thing, I left my brief case home I !,, My net profit last year was $5 ,000. � ' MR. ANGELL: That is your sole means of support - your sole business? MR. CUTIA: No, my wife is a teacher, she works . I! IMR. WILCOX: That' s a corporation? I IMR. CUTIA: No. Individual ownership. i : CHAIRMAN AMAN: Any other questions? Thank you. I I { MR. RYAN: I would also like to point out one matter and that is I I that in the block that Mr. Cutia has his business in there is a 11major portion of that block is taken up by the Ithaca Gymnastics building - it is a commercial type use which takes up a very sub- Istantial portion of that and that adjoins Mr. Cutia right on the i jback, partly on one side of his property. The rest of the properties fare residential in nature. There are some other commercial operations Ilin the area but none within 200' of the property other than the la ge I Ithaca Gymnastics structure. i ; CHAIRMAN AMAN: Thank you. Is there anyone here wishing to speak I �Ifor the proposed variance? In other words in support of the pro- jposed variance, I IMR. GROSSER: My name is Ernest Grosser, I reside at 102 W. palls Ii Il Street in Ithaca. Mr. Chairman and members of the Board. I met IJMr . Cutia back in May 1974, I will talk briefly about Mr. Cutia las a person and then, as his accountant and business associate for the past seven years. Now during the last seven years I found Mr. i IlCuti.a to be a man of good character, integrity and honesty. I mak 1these remarks without reservation or fear of contradiction. He has been a credit to the community where he is located - where his bus ness is located. People from all over - they like the man person- Dally, as a fried, h.011 help anybody that is in need. I 've witnessed thaton many occasions, people come in there, they haven' t got a I�nickel in their pocket but they don' t go out without some food fro jMr. Cutia, That' s the kind of a man that Mr. Cutia is , Now on May f19, 1974 T was hired by Mr. Cutia as the accountant and business consultant for the Cayuga Food Company. I want to make one correcr tion this evening.. There was a remark made about a bookkeeper. i i. i - 13 - 'i ;! There is no bookkeeper. I kept the books, I made out all the tax lireturns , answered letters and in general I took care of the entire !' office and I was present at all times during Mr. Cutia' s absence . i! He confided in me that I had the ability to carry on and I did the libest that I could. During those seven years I recall - there was 11 Ila mention made here about sales . Now his sales have increased �levery year from 1974 - I believe was about 120,000 , if I recall, Ito 243, 000 in 1978 but , as we all know, 1979 was not a good busine s i I1year for any business . We had bad times which could be more or le! s blamed on the fact that people didn' t eat in restaurants . That ' s jwhere the biggest part of Mr. Cutia' s business is , the restaurant Ii business , where he sells produce. That ' s his business and people i Ididn t go in the restaurants , for one reason, they could not afford it ., therefore his business dropped in 1979 to $170 ,000 but in the last few months there is a gradual pick up because I believe the (competitive business is sort of dying away - people in that parti i cular business today haven' t got sufficient funds to carry on and i JMr.. Cutia is just fortunate enough to be able to carry on so with (that incentive Mr. Cuti,a will increase his business , I believe , this year - that' s a possibility. There was a remark made too , I don' t know whether this comes in on this in front of the Board or not but there was mention made of Mr. Gangl , now I recall back ( in October 14 , 1979 that was on a Sunday, Now I always made the point every Sunday I would go over to the place of business R I had the keys, in fact I would lake to relate that the Fire Depart, ment and the police Department know my address - where they can Ilocate me in case there is any fire or any theft, That was done so they wouldn' t break into the place and break the doors down. I I made it a point every Sundeay to go over there and check out things a.nd I came there one Sunday and Mr. Gangl was taking pictures right �oing y the barn and I couldn' t understand it and I said what are you Ihere, I said, don' t you know it is private property? That wa's one incident I would like to relate, I don't know whether it ��_as anything to do with- this zoning or not but I didn' t like the dea of people being on private property. But there were no words ii it i{ 14 - I lcast - I simply made the remark and that ' s all . He has a great in jlvestment in this business , if I may go back to the business just i i1 brief again. He has an investment in this business of the buildin land the land which I believe is on the books for about $10 ,000 . an I! then he put in two coolers there were improvements made - there wa ala new office made, he had a new office made for himself and he als ; constructed an office for me and he put in various other improveme is buying calculating machines, so he has quite an investment and he has those two cars that they mentioned this evening or those two trucks and one is a brand new truck - 1979 - and they have a value on the books in excess of close to $18 ,000. And now I want to relate another point that Mr. Cutia mentioned, about a profit of $5 ,000. in 1978 . Well we must understand that when we are talking about ;profit it means after depreciation which. Mr. Cutia did not mention j iWe all know that depreciation is set up on the books for tax pur- 1 1poses only. His actual profit was in excess of $8 ,000. - with the I ( depreciation it came down to about $5 ,500. So I would like to jus sort of add to the comments that Mr. Cutia made. I will answer an I questions , as Mr. Cutia' s accountant , if any of the Board wishes t have any questions. MR. WILCOX; Could you repeat the gross figures again? $120 ,000 land $224 ,000 and the years . . . MR. GROSSER: No , what I mentioned was maybe - I said that when I , first came in 1974 the sales were about 120,000. They increased i lfrom 1974 to 1978 the sales were approximately 243,000. Quite a lincrease, but like every other business, 1979 was a bad business i Ifor every business , not alone the produce business . IMR, WILCOX: Essentially the business doubled between 74 and 78 . MR. GROSSER: That is correct. That was all done through the ( untiring efforts of Mr. Cutia who mentioned before that he went to the market three and four in the morning. I can vouch for i that because I usually Started about half past eight and he would 1b.e coming in from the market with merchandise to sell. Mr. Cutia Iiis not a lazy man, he is a hard working individual . That I can 1' i . .vouch for. Now if there are any other questions I ' ll . i li - il MR. ANGELL: What is the approximate gross profit in this type of i business? is MR. GROSSER: What do you mean, gross profit not sales? i; iMR. ANGELL: On sales, yes. i IMR. GROSSER: Well we average about - I 'd say percentage-wise , 25% 11gross profit on sales . I' MR. ANGELL: 25% . MR. GROSSER: Well you see in that particular business what ' s , I I . forgot your name ,? MR. ANGELL: Angell. SMR. GROSSER: In that particular business we must understand in th produce business there is a lot of things go bad but we buy in ,volume and we expect to sell and it goes bad. There is a lot of Iloss and that ' s where the 25% is what we call the gross profit on !sales that' s an average. IMR. ANGELL: Well, it seems to me that there is quite a discrepancy }between the 25% gross profit and the approximately 3% net profit. Now . . . I 11MR. GROSSER Well that ' s in the operating expensesyou see that its reduced . . . �MR. ANGELL: I understand that. IMR. GROSSER: You see I haven' t now for instance - i mean, I I haven' t got the statement with. me therefore I can only give you the figures as I remember them. The expenses wereveryheavy in 1979 . iThe car expenses alone were close to $8 ,000, Gas has gone up and �I �I you know what repair bills are. R. ANGELL: Well regardless of that, what I am getting at is , I ii .ssume that what you are aiming at here is proving a hardship and t to the figures just don' t jibe, IR. GROSSER: Well they would jibe if I had them, sir, I KR. ANGELL: Well , I'm sure they do, but I would have to be shown hese figures. ,1R. GROSSER: Well z could show them to you if i had them, see? We ave to consider Mr. Angell ,i, g , first we start out with sales , right? �hatls 100% and the purchases - the closing inventory, I mean the ,i �I �I I - 16 - �1 Iopening inventory plus the purchases less the closing inventory - that' s the cost of goods sold and that' s approximately about 75% � As I related before there is a lot of loss , you would be surprised i twhen that man comes who Mr. Cutia talked about - what he carries f away - that he had to pay for that went bad, there ' s a big per- centage of loss . Well that' s the average throughout all the years lit runs between 25 and 28 percent gross profit on the sales and i �Ithat must take care of the operating expenses. MR. ANGELL: It breaks down to about a 3% net? iMR. GROSSER: Approximately I suppose, yes . Well the insurance is i heavy, you've got salaries at $7 ,000. - it all adds up. iMR. WILCOX: The profit , that is his business . IMR. ANGELL: That' s right. IMR. WILCOX: It' s a private business, we are not really concerned n !I how he does in his business . If you are the financial person, do you have any figures to show us on what it would cost him if he had to shut down? Do you have any of that kind of financial stuff MR. GROSSER: No, we didn' t go to that extent. ,MR. WILCOX: Well that would be really germaine to the case. �MR. GROSSER: The only thing is , if he has to shut down - right - ( then he would have to relocate somewheres else, right? MR. WILCOX: Maybe he could go to Florida, T don' t know. I£ you �iwant to show some figures we would be able to see them. MR. GROSSER: It would be a loss to him because after all he is in business he started business , as I recall back in 162 and i Ithat' s 18 years . i MR. WILCOX: If I'm not mistaken, if he has an investment of land land buildings of only $10 ,000 that ' s not a very big investment to ! gross $240 , 000.. �MR. GROSSER: I said the land and the building was $10 ,000 . But �he has put coolers in there and other things that add up to maybe another $15 , 000. MR. WILCOX: Okay, well I - I just want to put on the record the f ct , that he did not bring financial data concerning the cost for this 'gentleman he has put through a hardship that 's all I wanted. . . I ' I ij 17 - h�MR. GROSSER: Well you can take my figures . . . CHAIRMAN AMAN: Wait a minute now, what we 've got is financial data indicating what - what you've got is a number going to zero - that much we have subject to the problem of 3% , 250 . . . what . . . �R. WILCOX: Well there is no proforma . . . there' s no . . . �R. GAINEY: We have a statement that says that the profit is going to zero. I mean, we don' t have an actual record that shows it Iwe are going to zero. Can we get a statement saying there is a is jjgross profit of $240, 000 - gross sales of $240,000 and I only made 1$51, 000 I 'd quit. i' ICHAIRMAN AMAN: It has to go to zero if there is no variance - that' s i !all - that ' s really my understanding of what your argument is . I' ,NIR. RYAN: Mr. Chairman, those financial records are kept and they dare available and if I was afforded the opportunity, I request the I opportunity to present the financial statements for this year and t e i� gear before and anything if the Board would be interested in seeing those. l! (!CHAIRMAN AMAN. Do you have any alternative data on alternative uses or i (what it would cost to close the business down? That seems to be what ,�Mr. Wilcox is after, isn' t that right? I' I�R. WILCOX: Well , yes. There ,has been a lot of paper work on pthis case and, frankly I 'm surprised that a financial man doesn't icome up with some financial figures . It' s not my place to tell him to come up with financial figures. But , in this case, it seems to lbe a rather complicated one , I would think they would at least have (Ithat much information as to what it is going to cost his client , i what his problems are . CHAIRMAN AMAN: If I understand the question or the problem of what ,,we are talking about here is the difference between some level of !profit and zero. MR. WILCOX; No. His profit is his business . I 'm talking about II (the profit on his sales and I don' t care if he makes $5 , 000 or 1$50 ,000 - what he' s got to show is a financial hardship in this par- ,�ticular case with no access to the street and a neighbor that is giving him - having problems , this kind of - because , as a citizen i I! i! - 18 - I ! board, we want to be fair to both sides and let both sides present Tall they can. If they fail to present some things , I think it is dour duty to draw a few things out and that' s one of them. CHAIRMAN ARAN: Let me just phrase that again. What you are saying is what is the value of this property if it is used - is there any pother use that this property can be put to that would present you with some financial return? Because we've been assuming its zero lits an all or nothing case and what you are suggesting is not an E : all or nothing case necessarily. SMR. WILCOX: No. At least I don' t see how it could be. SMR. RYAN: I don' t know of any other use that it could be put to - any other use because of the fact that its not adjoining - it could be a garage, you know - you think its a barn, it might be a garage It abut its not hooked on to another house that could use it and if we were to try to use it as a garage we'd have to rent it as a com- e Imercial venture for storage or for keeping cars in there , somethin ! like that , which I believe would be a commercial use and would not be permitted any more than the operation of the business - that rental of storage space is a commercial operation and that would b prohibitive too. Therefore I think that if we are not able to use I the property as we have for the past twenty-five years then we've is got a zero situation as far as any return that Mr. Cutia might ex- i pect from his property. But we have financial records and I think the man' s asking a question and I would like to have the opportun- jity to present those records . I request that opportunity. +CHAIRMAN AMAN: I have no problem with that, Although what the ('records would show is what the gross sales area IMR. RYAN: And the cost of operation - and it will show a small margin of profit and I think that that is - if we lose this place r lof business , we are going to be seriously hurt. IDR. GREENBERG: I 'm sorry, do I understand that you want to present !this now or do you want to come back to us? IMR. RYAN:' No, I don' t have it now - I don' t happen to have it her lin the room with us and I 'd like to come back with it. Oh, I 'd be (,willing , it is very, very important and I 'd be willing to come bac 1 i i 19 - i � - happy to come back. SECRETARY HOARD: Mr. Chairman, if I may, what the Board will have Ito find on this is there are special circumstances or unique con- I ditions fully described in the findings of the Board applying to such land or buildings do not apply generally to land or buildings in the neighborhood, which would prevent said land or buildings from yielding a reasonable return if used for a permitted purpose . lit seems to me the question here is property hardship not whether Ithe business is doing well . IMR. WILCOX: That isn' t for use and area variance . Area is not so serious maybe but the use that might be more serious . CHAIRMAN AMAN: I don' t see what value this information would be - what we are interested in is whether or not there is any other way i that that property could earn a return - something above zero. Your argument is this is an all or nothing case . MR. WILCOX: Well , if that ' s their statement, then that' s their , statement , fine there is no problem, I just want to MR. GAINEY: You've got to look at the other thing, if we say no and he ' s got th-e sales of $24 ,000 you are knocking a business out 1 iof $240,000 sales, okay? If he manages it different maybe there is profit - that's entirely up to him. But you are not just looking iat a building, you are looking at a building, its use and a business . CHAIRMAN AMAN: Well , I have no objection to that information coming lin and being a part of the record, maybe that would be the prudent �IIthi.ng to do. Hearing no other questions we could move on. Unless ;you want to pursue it further? �IMR. RYAN: We will submit the financial statement, I CHAIRMAN AMAN: Anyone else wishing to speak for the variance? VIVIAN A. MORGAN: Mr, Chairman and members of the Board, my name Elis Vivian A. Morgan and I reside at 208 Second Street. My house is right next door to Mr. Gangl ' s son and in no way has the produce business affected my property, Long before I moved on Second Street it was a produce place and I 've never heard any of my neighbors co - i plain about it or anything, And I do want to say that I am a wido I land Mr. Cutia and the young men who work for him have been very kind li L 20 - to me because, being a widow, a lot of things I couldn' t do, I 've 1 never had to ask them to do and he has given me food and everythin yand I am here to say that he is one very fine man and our neighbor- hood would really be blessed if we had more of his kind and I just can' t see our depriving a man of his livelihood He said that his iwife is a teacher but I 'm sure that all of you here - your wives 1work and it takes two people these days to make it. I 'm on limite i� . income and God knows I have a hard time . And I am sure that any o 1you in this building tonight would not want anyone to take your ,i fobs or anything away from you and I thank God for the way I was reared because my family reared me this way; you've got to live an let live and I think that if we all applied the golden rul to various things - of doing onto others as we want them to do onto jus , we wouldn' t have to be here tonight . Thank you. IICHAIRMAN AMAN: Anyone else here to speak for the variance? �MR. LEONARDO: I 'm Alfred Leonardo, 104 Third Street . Now, I am � on a fixed income and I have been disabled all my life, I 've never really held a job that I've earned more than $3,000. a year. Now I 'm not earning any money except Social Security disability and there have been times before the end of the month that I 've been short of cash. I 've gone to Dick and I 've told him the situation sand I 've never gone hungry and I 've paid him after my check comes lin. If there were more people in this neighborhood or in this cit like him, people like us and other people in this world would not have any problems . I have doctors , I have all kinds of people coming to me every month to pay my bills . Now if I don' t pay my ( taxes this month when they are due I can' t say to the tax collecto II haven' tg of it this month - I 've either got to come up with it jor I 've got to pay a hefty sum and if I can't pay my taxes the cit comes and takes it. So , believe it or not , I cut my food bill way down this month in order to pay my taxes and I 'm depending on Mr . Cutia to keep me going until the taxes are paid and I 'm better off financially. That 's all I 've got to say. CHAIRMAN AMAN: Thank you sir. Anyone else wishing to make a jstatement on behalf of the proposed variance? Yes ma' am, could yo �I ii �I � - 21 - I ; come forward please? MRS. GAULTIERE: My name is Rose Gaultiere, I live at 111 Second Street. I have known Richard Cutia for quite a few years but not i! as much as I have this last eight or ten years . To me he is a ! man - a regular human being. He has pity for anybody who goes in ! there whether they are black or white. He has no discriminations , he has human feeling for everybody. I know people that can go in ( there with nothing in their pocketbook. but they still can come out with food and I think that if the Lord said give and you shall re- Iceive and that ' s just what Richard Cutia does and if anybody has ! a little bit of heartfelt sympathy as he has , I 'm sure we wouldn' t have these situations in the world as we have today and we wouldn' I 1have to fight for a living. CHAIRMAN AMAN: Anyone else here to speak for the variance? (no Ione) Is there anyone here who wishes to speak against the varianc ? I Mr. gangl , please come forward. MR. GANGL: My name is Walter Gangl and my address is 140 Indian Creek Road, Ithaca, New York and I 'm here to speak in opposition to the requested use and area variances . CHAIRMAN AMAN: Mr. Gang1 I should tell you that we have had your ,materials for some time and the members of the Board have had a i chance to study them so feel free to summarize. I�MR. GANGL: Very good. I have essentially five points that I would like to make here tonight. These are that the statements made by Mr. Cutia' s appeal are for a large part false and/or materially misleading. The true facts are shown in my proofs which I submitted in my statement and would demonstrate how totally unsuited Mr. Cutia' s lousiness is to that residential area. Secondly, MR. Cutia has not I�proven he is unable to gain a fair return from his property by using tit for a permitted use. That is what he must show, Third, Mr. Cutia has shown no circumstances unique to his land that warrants ja commercial use variance. Fourth, Mr . Cutia' s business fundamen- tally and radically alters the character of the community in that (residential area. And fifth.) Mr. Cutia's alleged hardship is self- i ,Iimposed and is legally insufficient to supporta use variance. I 'd � I' 22 - u �i �jlike the Board to note that Mr. Cutia' s petition was unanimously rejected by the Planning Board last month and the facts are shown (fon my statements and the proofs I 've submitted. i CHAIRMAN AMAN: I don' t mean to interrupt a very organized presen- tation but let me just ask this question which you may factor into , your statement. MR. GANGL: Yes sir. CHAIRMAN AMAN: When you bought the house you bought the house I knowing that this business existed? + MR. GANGL: It wasn' t any - to any degree the business as it is today. (! CHAIRMAN AMAN: Okay, if you would address that in your remarks . IJ MR. GANGL: Mr. Cutia' s claim of twenty-four years of continuous use is not only irrelevant here but it is clearly false. To i ' operate such a produce business Mr. Cutia, or anyone , must be licensed by the State and Federal governments . I have a letter here from the New York State Department of Agriculture and Markets which shows that the ,Jessie Snyder, who he claims ran a similar produce business was never licensed and I 'd like to submit that Ito the Board. Also , I have letters here from the U. S. Department �! Of Agriculature showing that Jessie Snyder never was licensed to conduct a produce business such as Mr. Cutia is running. But the ( point is actually . . . CHAIRMAN AMAN: Does Mr. Cutia have a license now? MR. GANGL: Yes he has licenses from both. State and Federal govern- ments. Mr. Cutia states that he employs a bookkeeper, family 9 Imembers and two other employees. In the past he has up to four other employees not just two other employees and he is liable to �have them again. He says that business is picking up again his bookkeeper just said his business doubled in less than four years over doubled in four years . It could double again in the next fou years. This increases the traffic and takes up more street parkin �lpeople stop and come in and out of his barn many tames a day. I 'd �E �Ilike to point out that Section - well , going back to some of the fIstatements Mr. Cutia made, he claims that this - Mr. Ryan, his I' I I' .i ii 23 - ; I ; has claimed that this is Mr. Cutia' s only place of business . In I ! exhibit E on my submissions to the Board and paragraph 9 we have Mr. Cutia' s own sworn statement that this is his second place of is ; business . Since that time he has begun a third place of business ! the Salad Market out on Elmira Road and he has moved one cooler Iain and out of the place on Second Street down to the place on ! Elmira Road. He can move his other coolers out to his other place of business . Truck traffic . . . CHAIRMAN AMAN: Do you have any proposals as to what that property ! could be used for if he did do that? i` 11MR. GANGL: There are many other carriage houses old carriage I , houses throughout the city, sir, that have been converted to resi- n jdential use and permitted uses that are proper in this area and he , has not shown that he cannot do it , he has not attempted to do it, i he has not attempted to sell his place or convert it to a proper use. MR. ANGELL: Where was the first place, I mean, the second busines I he has? MR. GANGL: As I said, in Exhibit E which is attached to my state- � ment - I don' t know where all his places of business are but he swore at that time , in paragraph 9 of his affidavit that this was his second place of business and after that time the Salad Market I on Elmira Road has begun and his sister-in-Taw essentially manages it but I believe that he is partners in that business as well sine I he is down there a good deal and supplies . . . MR. ANGELL: Where is the other one besides Elmira Road? MR. GANGL: I am not sure, sir but this is what his sworn state- ment. As far as truck traffic in and out along my property, Mr. Cutia says he has one truck in and out twice per day. I have personally counted vehicles - traffic in and out between twenty ! and thirty tames a day as has my tenant. I CHAIRMAN AMAN: You say vehicles - are those trucks or what? MR. GANGL: Tractor trailers , van type pick-up trucks , van type I trucks of 9- ton weight, pick-up trucks and automobiles . i CHAIRMAN AMAN: Of the twenty or thirty, are they trucks or auto- mobiles? I 24 - MR. GANGL: More are cars and small trucks . There are a signifi- cant number of large trucks over nine tons . I!MR. GAINEY: Before we go any further, when you purchased this i property were you aware that there was a business in back? IMR. GANGL: Yes there was but it was nothing on this scale - no where near this scale of business. �IMR. GAINEY: Were you aware that there was the right-of-way with the ,!driveway and everything? Whenyoubought the house? SMR. GANGL: Yes there was a driveway that Mr. Cutia used at the etime I bought it. !MR. GAINEY: Okay, what has brought about this change since you bought the property that you are filing all of this information? �IMR. GANGL: Well , if I could use a bit of demonstrative evidence k again, I would like to use a enlarged map of the area. This is a scale enlargement of the survey map that Mr. Cutia has submitted to the Board. I would like to unroll it and point out the situatio i ja bit clearer. This is a precise scale enlargement of the survey k ap that Mr. Cutia submitted and swore to as to its accuracy with is appeal papers. This is my house here - this brown line indi- E 1cates the boundaries of my house, This is a concrete walk which is i !indicated on the survey map which was made in 1957 - with the vario s IP ipes indicated. These are my boundary Lines here. , my property .own to the old pipe back here. This is Mr. Cutia's barn here- ere is his property lines . This is a cooler shed - this is not precisely to scale in relation to everything else but - it is very E much in proper position. The cooler shed that Mr. Cutia build - he I in 1974 - the floor boards for the cooler shed extend across pnto my property and the cooler shed is within one foot of my roperty, I have here . . . � R. GREENBERG: Is this the shed which was built without a permit? �R. GANGL; Without a permit. �R. GREENBERG: Without a permit? i R. GANGL: Without a permit. I have here two scale models of the ame scale of Mr. Cutia' s large trucks that he uses . . . I ECRETARY HOARD: Mr. Gangl , before you go any further , maybe I i i I 1 i ii - 25 - i lbetter point out that this will have to become part of the record, ! these exhibits . !! MR. GANGL: I ' ll need them Thursday but after that, okay. This is I fa scale model of Mr. Cutia' s biggest truck -- the license plate is i, indicated on here. The gross weight is 18 ,000 pounds - 9 tons . Section 60. 63 of the Ithaca Municipal Code provides that trucks �I over 5 tons are excluded from these streets. Empty, this truck is i almost five tons if he loads almost anything in it , even a drive , slit becomes over the weight limit. Mr. Cutia backs this truck down Ithe driveway, in this manner, and it has been parked approximately ; here since about December 15th of 1979. Mr. Cutia' s other truck - Ithis truck is 26 feet long, not 16 feet long as Mr. Cutia said and , g� g ' it is nine ton gross truck, not one ton as he stated before, I don't (know how he can say that . This is another truck of Mr. Cutias - a blue truck, a recent purchase about last year, that he brings in. Now this is the boundary of the right -of-way and this may be a little bit shorter than 26 feet but I made it the same size and to get into his property, Mr. Cutia drives in and parks like this . „Okay, in the exhibits I have given the Board there is one exhibit i� (that shows a tractor trailer - a tractor trailer backed in down in 4hls position here and this nine ton truck parks right here on my (property. In about 1973 Mr. Cutia came in and bull-dozed out my back lot and put gravel down and has been parking on it since. He drives over - up to about this area here . He stores his garbage �in open containers you have plenty of pictures of those I 've got about 750 pictures of all his violations , including garbage i'eery recently. CHAIRMAN AMAN: As far as those violations are concerned, I take it 11 of this is presently in court, is that right? SIR. GANGL: Yes, there is a - I 've brought an action against him for i respass and nuisance. HAIRMAN AMAN: Trespass, nuisance, damages . . . �R. GANGL: But I have my rights under the zoning laws and I am pur $ui.ng therm here. �R, WILCOX: Could I ask a question? i �I. �i l 26 - IjMR. GANGL: Yes sir. I; !MR. WILCOX: Would you mind telling us the approximate value of th' s IIrental property? I IIMR. GANGL: Of my house? MR. WILCOX: Yes. You don't have to , it is . . . MR. GANGL: Right now, I couldn' t say. The large truck traffic has destroyed the concrete walk along the side of my house. They've I ;hit my house several times along the side here. You have my �itenant 's affidavit in the papers I submitted saying . . . I MR. WILCOX: I read all of this stuff, I know. MR. GANGL: And my house has been hit back- here. It is not saleable in this condition because the south foundation wall is buckling inward and ready to collapse. iMR. WILCOX: In your opinion, if your other court case gets settle i in your favor, does this become a moot question? IMR. GANGL: No I have my rights under the zoning laws and this is a !gross violation of the laws in this area . . . MR. WILCOX: I 'm asking you that as an attorney. MR. GANGL: No this does not because I have my rights and that - the case is liable to - when it gets on the trial calendar after I Idiscovery is completed it will probably be a year - year-and-a-half �ibefore it comes to trial and . . . i IMR. WILCOX: Would you make a rough guess as to how much the house is worth? R. GANGL: The value of my property? If it .were faxed up in proper , condition? A rough guess would be about $30 ,000. I' R. WILCOX: if it were fixed up in proper condition? R. GANGL: If it were fixed up in proper condition. R. ANGELL: What is it that says R. WILCOX: What is it now - what is it assessed at? R. GANGL: The assessment now? I don' t know off hand - I don't now, I wouldn' t - it' s actually unsaleable - nobody would want to Ibuy it into this situation. MR. ANGELL: What is the assessment on the house - what taxes do ou pay? i I! 27 - I! .IMR. GANGL: I don' t know, sir - that is not relevant to Mr. Cutia' s iipeton or a variance. don' t for I dt know, off-hand. , i1MR. GAINEY: You own a house and you don' t know what its assessed .I ;for? i` I1MR. GANGL: I do know, but I don't know on the top of my head, no i ,sir. I have it in my records but I don't have it here. !MR. GAINEY: What' s the difference here - you've got old pipe and il!you've got new pipe. 1;MR. GANGL: This is precisely the markings that are on the survey map that was submitted by Mr. Cutia. Precisely the same markings - I did not want to alter them. The only alteration is the cooler I I!shed and the names - mine Gangl house instead of Jennie Teetor and Cuti.a' s barn instead of Snyder' barn. ,MR. GAINEY: How close is the Spadolini house to this right-of-way? IIMR. GANGL: I wouldn' t know. IIMR. GAINEY: Roughly? MR. GANGL: I - again, I wouldn' t dare guess . f IMR. GAINEY: Maybe we can ask Mr. Cutia. How close is the Spadoli i �ihouse to the right-o£-way? MR. CUTIA It joins right to it. The house or the property? IMR. GAINEY: The house. .i ,MR. CUTIA: I 'd say about twenty feet . !MR. GAINEY: Is this ours now? i SECRETARY HOARD: Yes , its part of the record, CHAIRMAN AMAN It seems as if these trucks have been causing much , of the problem as far as the foundation is concerned. MR. GANGL: Yes sir. ' CHAIRMAN AMAN: When you bought the house were these trucks in use I fat that time or is this something new? MR. GANGL: No, I think Mr. Cutia' s red truck, as indicated there , � is about a 1972 . I bought in 1971. He had some trucks coming in 'land out at that time but they were about two times a day at that i w ! time. CHAIRMAN AMAN: What about the blue one R you say is 26 feet? ;SMR. GANGL: That ' s I don' t know the length of that one , sir. I I! I' i I - 28 - I' '` do know the red one. He cannot park his trucks in front of his bafn 1Iwithout parking them on my property and I have a - there was a court i ! order in the case that we discussed - he is enjoined to keep off Imy back yard -he is enjoined not to go on my right-of-way - my Ij �Idriveway except for legitimate loading and unloading purposes - he ( parks there all night, as he admits - parks on my property all nig t. MR. ANGELL: Mr. Gangl have you filed insurance claims when the trucks hit your house? +MR. GANGL: No. It' s not my insurance responsibility. Insurance ' I have complained to the city police. SMR. ANGELL: Well , if a truck hit my house, I think that I would file � a claim. MR. GANGL: The insurance wouldn't pay . . . iMR. LEO GANGL: Mr. Chairman, I ask that the rooting section be ladvised not to interrupt. You know they go into yelling and every thin else while this man is trying to resent his case. s � Y g P CHAIRMAN AMAN: No one will yell here and no one has and I don't i expect that !MR. GAINEY: Before you come up and start making statements , let' s i Igo over the way things were stated in the beginning and identify 1yourself . . . i CHAIRMAN AMAN: That ' s fine, IMR. LEO GANGL: Absolutely. I 'm Leo Gangl , I 'm an attorney-at--law Mand I am attorney for Walter Gangl . I am here as counsel for him i tonight. He will. do most of the presenting. EMR. GANGL: To respond to Mr. Angell ' s point, I am not obliged to file any claims with my insurance for Mr . Cutia hitting my house. . . SMR. ANGELL: I mean, I would file a claim against his insurance company. My God, that ' s what I would do, MR. GANGL: Yes , Mr. Angell , but this is - actually hitting my �house is one of the more minor things that Mr. Cutia has done. The bull-dozing my back yard is - I mean I can't file a claim against i s this insurance for that. There is too much- involved. E �MR. ANGELL: Z understand that but this is one thing that I would Ido - if somebody hit my house with a truck I 'd certainly . . . II �i 29 - .i MR. GANGL: I 'm trying to do as Mr. Ryan and Mr. Cutia said - I 'm 11trying to do all within my power to protect my rights - my legiti- li ; mate rights not to have my property destroyed in this manner. i MR. ANGELL: Well have you filed any claim against Mr. Cutia in Many way for the damages to your house? �jMR. GANGL: Sir, there is a lawsuit pending that will reimburse me { ' for the damages that have been caused to my house - against Mr. JICutia. That will reimburse me. His insurance is not the proper i !body to look for compensation. i, lDR. GREENBERG: Mr. Gangl will you comment as to my question to Mr. jCutia regarding his permit to operate as granted him by the State i !Health Department? And you have mentioned here that in effect he ' s in violation of . . . lMR. GANGL: Yes sir. If you will look at my exhibits J and L on m !statement you will see statements by the Department of Agriculture 1 Markets showing him in violation of state laws. Exhibits J and L. MR. GAINEY: Do they still give a license? IIMR. GANGL: They still yes , he still continues. �DR. GREENBERG: Is the license renewable? Yearly? i R. GANGL: I believe so and I am taking steps to challenge that as ell. PR. GREENBERG: You are taking steps? R. GANGL: Yes sir. R. GREENBERG: You mean, you haven't taken steps? SIR. GANGL: No sir there is a limited amount of things that one per (.son can do in a day and I am assuming the most immediate avenues of relief first and this is the major avenue of relief. Certainly questioning his license to continue would be secondary when this 4ppeal is denied and - if the city will enforce the laws as they are bliged to. As I pointed out, Mr. Cutia' s trucks are - the one that e owns there that has been parked, apparently broken down on my }property since December of 79, is 26 feet long, not 16 and I have plenty of photographic evidence with me that will prove that and it mill prove th-e weight of his truck it is marked right on the side jof his truck. And, as I pointed out previously, Section 60. 63 of it I� ;f - 30 - of the Ithaca Municipal Code specifically prohibits trucks over 11five tons from the city streets whereas Mr. Cutia brings in tracto I; ; trailers and backs them down my property. To continue, Mr. Cutia' I! business does not even meet the less stringent standards required hof businesses in commercial zones , much less in residential zones . i ;I He violates Sections 30. 37 , 30. 38 , 30. 40 , 30. 41. The Code would n t ileven allow this business in a commercial zone surrounded by other (businesses yet Mr. Cutia wants to continue it in my back yard on m �1property. At the Planning Board meeting he said that he was - this ! is over a month ago - he said he was going to remove the cooler shed I !that is still there - it still hasn't been removed. He has taken no jjsteps to remove it whatsoever. The legal requirements for zoning (require that he must negate the fact that he can get a reasonable i !return from his property from any permitted use. He has not shown that he cannot use this for an apartment. Many, as I said to Pro- ifessor Aman previously, many other old carriage houses in the area have been converted to residential use, He has not shown any atte pt or tried to sell the place for a proper use. Absent such proof the ( State Court of Appeals holds that this Board of Zoning Appeals is Iwi.thout authority to grant such a variance and the Court has also ;held that an applicant must negate all permitted uses of the pre- mises and the burden is placed on the applicant and it can only be ! sustained by dollars and cents proof to quote the Court of Appeals . Mr. Cutia merely complains that the zoning prevents his .use for his unlawful commercial purposes . The intent of the zoning laws is to prevent the injury to others from this obnoxious and damaging use. JAnd it has been shown that he has constantly expanded this use as �Ihis own bookkeeper has said - doubled it in four years and it very (may well double again with more employees and more trucks , more tractor trailers coming through my property. The second requirement ;that the applicant must show is that there is some unique circumstance i that warrant this variance: But Mr. Cutia alleges that he has con- tinued his business for many years and this his business is an in- terior lot. These allegations are not germaine to the necessary requirement of unique circumstances . There are many other interio ii I I - 31 - pilots in the area and using it for commercial purposes compounds th ';!problem. If it were used for residential - a proper purpose, the '!damage to the surrounding areas would be much less. If his proper y i rere a frontal lot there would be less imposition on other proper- ties , but this allegation of interior lot is just not germaine to his allegations of unique circumstances . And as was brought out b 11the testimony of Mr. Cutia ' s own people , he has constantly increased his use of the premises, he has built new offices , bought new coolers land built additions , bought new trucks and has constantly expanded his business and it is destroying my property. The third require- ment that Mr. Cutia must show, in order to gain a use variance , is !that this does not change the - the permitted use would not change the essential character of the community and the required showing Imust be before and after this use commences . He is operating the +business now does not mean that continuing it would not change the I +character of the community. The required difference must be before land after this business came in and this business that he operates jradically and fundamentally changes the character of the comm unity I'and radically and fundamentally damages my property, The Courts i hold that a variance is improper where the intrusion of commercial 'Use will disrupt the residential character of the neighborhood whic jlis precisely this case. CHAIRMAN AMAN: Your house is presently rented now? �R. GANGL: Yes sir. ��HAIRMAN AMAN: Not to yourself but you have a tenant there? I' � $4R. GANGL: Right HAIRMAN AMAN; Have you had any trouble getting tenants in there? I 11IR,. GANGL: Yes I have. It ' s very difficult to show them the back Lard used bytrucks and no back yard whatsoever and having tractor II trailers and trucks running in and out of the driveway - it shakes ;the entire house as these trucks go over the pot holes and they are I �hown in the pictures I've shown, They run over these pot holes an( hake the entire house. And my tenant has said in her affidavit hat I 've submitted as an exhibit - that it sounds lake a locomotive , Cutia brings in trucks as he said, he goes and picks them up at I,I I Ii. i! ii 32 - i. it ' night and what-all and they come in late at night and she gathers I` !jher children together on the north side of the house - she says - Ifbecause she is afraid they are going to hit the house as these it �r lItrucks back in and the house will collapse. A variance is improper �lwhere a safety hazard such as this traffic and the large trucks by Imr. Cutia - are used by Cutia - will be created and this does create ha traffic hazard along the south side of my driveway. There are a 11trees along the side and with my house on the north side the truck II , cannot see anybody on the sidewalk until they are on the sidewalk and they come rolling out of there at a speed that shakes the house i hand is dangerous to pedestrians through there. MR. GAINEY: Do you have a parking area? i ! MR. GANGL: No, I can' t even use my property because of the abuse land threats by Mr. Cutia. As I have shown on there, one of Mr. Cutia' s workers tried to run me down while I was standing in my ow back yard. He was convicted of failure to yield to a pedestrian - sh.e was charged with a similar serious charge and plea bargained to a lesser charge. DR. GREENBERG: You have the use of the right-of-way don' t you, theoretically? MR. GANGL: It' s my property. DR. GREENBERG: It' s your property? SMR. GANGL: It ' s my property but I - no I can' t use it no it ' s . . DR. GREENBERG: I mean, theoretically you could park your truck there, too I mean, if you wanted to have a . . , SMR. GANGL: If I wanted to have a confrontation, a shoot-out at the ' O. K. Corrall , I could go in there, yes. MR. GAINEY: ' Is there access to the back portion of the yard through the gymnastics area which bounds on the other . . . ? MR. GANGL: I don' t know about Mr . Cutia's other boundaries , I know 1 he stated that he has a hose - a cold water hose from some neighbor- ing eighbo -ing property that comes to his place and I don1t know where that ! comes from - who he gets that from - but that is some sort of acce s . i The law requires a comparison of the neighborhood before and after the requested use has begun operation. I stress that fact. It li - 33 - 1 ii ,, must be - when the Board compares the area that would be - the ;; situation in the area without Mr. Cutia' s operation there and then i { compares it after Mr. Cutia' s business has begun, the Board must } see the fundamental and radical nature of the change to the area from this operation. ; CHAIRMAN AMAN: In what time frame? Do we go back twenty-five ; years or do we do it today? ` MR. GANGL: We would do it today sir. CHAIRMAN AMAN: Why not twenty-five years - it has been there for twenty-five years? MR. GANGL: It hasn' t sir. I 've submitted papers , I 've shown that this business has not been there. Mr. Cutia has expanded his i business since 1974. ( CHAIRMAN AMAN: Your position is that it is a different business lbecause its larger? MR. GANGL: It certainly is , it' s fundamentally changed in the num luses lber of vehicles and the damage to my house, the number of times he it, the coolers he has in there - he ' s moved coolers in and out and . . . [MR. GAINEY: That cooler shed, was that there when he purchased the property? MR. GANGL; When I purchased it? f. `MR. GAINEY; No, when he . . . MR. GANGL No. He added that. MR. GAINEY:, When you purchased it? i IMR. GANGL; No, it wasn' t there either time it was built in about I 1974 and it wasn't there when either he or I purchased it. And apparently neither were either of the coolers inside which he brought in with him. IMR. GAINEY: Was a variance or anything . . . ? IMR. GANGL: No, no building permit was requested , even a building permit was not requested for the cooler shed - wh1c h_, as I said, as built even extends over on to my property by the form boards for the concrete foundation. My fifth and last point is that (regards to Mr. Cutia' s self created hardship - the Court of Appeals i 34 I! ' has held that a variance may not be granted to relieve hardship ;' created by the applicant . The rule clearly applies to persons who i ;,, acquire land for the purpose outlawed by zoning. The self created i. 1lhardship applies where the applicant purchased the land with actual I for constructive knowledge and that the desired use was prohibited. I i; And whether the knowledge was available to the applicant through a I , reading of the zoning laws or simply by observing the character of ' the neighborhood. Mr. Cutia pleads his innocence of the law as I I jjustification for allowing him to continue. This is obviously i legally defective. There are also , as I pointed out, numerous (` violations of city, county, state and federal laws, As I pointed ! out in my statement and in my father' s memorandum of law, his bus! i mess is totally unsuited to any area much less a residential area. ITo conclude it would be completely improper to grant Mr . Cutia a fuse variance under the circumstances shown. He has proven none of I ( the essential requirements , his operation is totally inappropriate i Ito a residential area and it radically and fundamentally changes ! the character of the neighborhood. There are also no circumstance junique to his property. It must be unique to his property, not to i (himself personally. There are no such circumstances that warrant � granting a variance. Finally, Mr. Cutia has not shown any legally (; recognized hardship that would be caused by application of the izoning laws . He has not shown he cannot convert his property or cannot sell it for a permitted use. Mr. Cutia merely bemoans the Ifact that he will no longer be able to - be allowed to conduct his I ! illegal and destructive commercial operations in a residential aree . I jMr. Cutia has sworn in a statement that he has other places of i (!business and he can alleviate this problem by expanding those and closing this one and putting this to a proper use. In light of th 1damage being done and the gross nature of the violations , I urge t .e !Board of Zoning Appeals to deny this appeal and take swift measure Ito enforce the law herein and put an end to the damage to my property. Thank you. CHAIRMAN AMAN: Any further questions? Anyone here wishing to spe k i against rlibe variance? i i ii I; i; - 35 - hMR. LEO GANGL: I only want to make a few points . You have the survey before you, gentlemen, and on that survey you see a concret i; ;; walk distinctly shown and drawn; as also on the big drawing that ii Walter has presented here. That concrete walk was there when Walt, r bought it - bought the property it was there in 1974 and since t en lit has been completely obliterated by these heavy trucks - you don' t I lsee one remnant anymore - up to a point of two years ago, you coul , still see an occasional piece of concrete. Now, gentlemen, this i I! ! in - not on the right-of-way as shown, the ten foot right-of-way, i it is on Walter' s property, a concrete walk that went to the back of his house where there was a platform where there used to be an lentrance going into the - that house, which of course have been i ! completely obliterated. I just make that one point and I also refEr i you to the points of law - the cases and so on that I have given o i , this case. Gentlemen, I know my own, I represented Walter when he !,purchased, I also represented Jennie Teetor, the prior owner I was Ther attorney also and I dispute Mr. Cuti:a' s statement that he got lalong well with her because she had problems then already and at I that time it was not big trucks - they were only small trucks , pic - � ups and this type of thing and Mr. Cutia, of course, had owned the place quite awhile before Walter got it , but at the same time the ( condition wasn' t too bad until about 1974 when suddenly we get big tractor trailer trucks and everything else in there - all those big heavy trucks and immediately Walter, and I myself tried to tall to Mr. Cutia and we tried to reason with- him. We couldn't talk. ! with him - he had the right and he bull-dozed out the back yard an istarted using it , and so on and that 's not the right-of-way. Gentle- men, I ask. you to consider all the damage that has been done to this property. This is the one that gets the damages , not the other ineighbors that are far away - it' s all over Walter' s property, , Walter' s right-of-way, he is the owner and regardless of whether ' we want to go back to horses and wagons, and so on, but there is �Ino proper, intelligent and reasonable and Horse sense use of it - !! made of it that hasn't been done and you couldn' t talk with him. ! Instead the owner of the property here is almost run over and the ii i! i` 36 - I {person who did it - you know what I mean, pleaded guilty to a less r charge but nevertheless did so. Thank you gentlemen. I CHAIRMAN AMAN: Anyone else wishing to speak? i I'MR. ANGELL: Since the order of the court adjoining Mr . Cutia from parking on your property has he continued to park on your property? (IMR. GANGL: Yes he has , sir, and there is a motion that is going to The heard this Thursday to punish Mr. Cutia for contemp of that I !order. k I {CHAIRMAN AMAN: No further questions? If anyone else wishes to i Is peak again the variance please come forward now. (no one) If no ne wishes to speak against the variance, Mr. Ryan do you want to ? R. RYAN: Might I have just a couple of minutes for rebuttal? � HAIRMAN AMAN: Yes . If you could limit yourself to that . �R. WILCOX: I would like to ask one more question. Would you like o make any statement why the tenant is not here? I know there is n affidavit. R. GANGL: Yes sir, well , after she made that affidavit and it tppeared in court she was harassed her since she made that statemen nd she is afraid to appear. R. WILCOX: What I am trying to establish_ --- she hasn' t moved out r . . . ? R. GANGL; No, she is still there. R. WILCOX: But she has her own reasons for not coming? R. GANGL: Right. R. RYAN: I have just a couple of things that I would like to add. ne of them is he has referred to the Ordinance of the City which prohibits large trucks . They forgot to mention that it says except ior local delivery. So large trucks are permitted except for local livery and we feel that this is a local place of business and that the purpose of - that we are legal and therefore have not been �rested for an)n violation of the city law, The diagram that he has �t there is a little deceptive to you in that it has got in great �g letters the ten foot right-of,way. Gentlemen and ladies , there ' nothing in the deed that created that right-of-way that said any- t 'ng about ten feet. It says a right-of-way along the southerly edgre it - 37 - �I jof that property and there is nothing limiting it to ten feet. lAfter some years went by, in the title to Mr. Gangl ' s property, ; they started to insert the word ten feet , but not in Mr. Cutia' s I� �1property. Nothing limits that right-of-way to ten feet. is MR. GAINEY: Okay, let ' s go back to ten foot. Okay? Ten foot , jltwelve foot - whatever you've got there , when you start hitting a house, it if was hit - we've gone out of the boundary a little bit j ! okay? MR. RYAN: Well , yes, if . . . II MR. GAINEY: The right-of-way doesn't say anthing about . . . ,SMR. RYAN: Shouldn' t hit the house . . . (IMR. GAINEY: Houses , okay? � MR. RYAN: Right. That 's right. IMR. GAINEY: It seems that the whole thing from the pictures and , stuff that we have, all centers on the damage that is done to the house. Okay? MR. RYAN: Well , we deny that any . . . f' MR. GAINEY: I know, like Morrie says , I damn well , if somebody hi �I Imy house ! MR. RYAN: Right that' s right. i, MR. GAINEY: You are going to be lucky if you are going to go down I the driveway again, before you go to court. MR. RYAN: Right and I agree. IMR. GAINEY: The whole thing seems to center on the damage to the i house . MR. RYAN: That ' s right. IjMR. GAINEY: Has anything been tried to be worked out between you f two , to resolve this problem? I IMR. RYAN: Well , I went to Mr. Gangl when I became involved in thi ' matter and I talked to him about the possibility of paying the Iright-of-way, to make it better because he is complaining about th i ! pot holes and things and, honestly gentlemen, you can believe this or not - there is no talking to those people . They want Mr. Cutia ; out of there and they will settle for nothing less . I ' d be happy Ito talk with- them about any of these matters I have an affidavi f ' 38 - I i in - this is the brief on appeal - Mr. Gangl has - the basic actioli 'j involves this matter - he moved for summary judgement and he ' s i been denied that judgement by every court in the —we 've been to including the appellate division of the State of New York. He has not had summary judgement - he was denied summary judgement in regard to our use of the right-of-way. This is the official brief of the case that went to Appellate Division in regard to this matter and there is an affidavit in it on page 62 which is our side of the case - from Peter Levatich who is a recognized architect or , engineer in this area - which I am going to submit for your examin i ation which says that there is no damage to his building - the ( foundation has not been damaged. It is an old, old building and i I believe that they paid, when they bought this property - I think they paid $2 , 500. for it and let them correct it if that isn' t true. ' MR. GAINEY: Is there anything from stopping you in the title from fencing off your property line? MR. RYAN: Our right-of-way? No, I don't think we could fence off your right-of-way. All we have is a right-of-way to pass over . . . Ii f MR. GAINEY: Your back boundary then. Is there anything in this that says that you can't, , , MR. GANGL: I put up a fence along my property and Mr. Cutia has ( torn it down. MR. RYAN: Alright, now it is our position that we have established a prescriptive right for the past twenty-five years to go from ( Second Street to Mr. CutialsP ro eity in the back. Not over ten feet p and that' s deceptive - you look at that and think, gee that' s ten (feet - that' s all they've got. I 'm telling you that ' s not true . We have the right to use what we have established by prescription over the statutory period to use that right-of-way and when we get Ito the back of the property it is necessary to bear to the right a Tittle bit to line up with the doors to go into the barn and that ' s our right. , MR. GAINEY; Does that give you the right to bulldoze though and 1, fill in with this . . . i l - 39 - i '!MR. RYAN: No. No , no , it does not. No it doesn't . It does not. I! 'Okay, Dick let me answer the man, alright? No it doesn' t give us ;the right to bulldoze the area that is clearly not necessary for u � to gain access to the barn. Unfortunately . . . i' !MR. GAINEY: Why don' t you come over here , seeing as we 've got this - why don' t you show me to see how much we disagree here�where has it been bulldozed and where has it been filled in? iMR. RYAN: Mr. Cutia requested a man to clear this area right there , okay? Because it was - it is his property this is Mr. I Cutia' s land. Everything on this side is his property. iMR. GAINEY: Right . I MR. RYAN: He requested a man to come in to bulldoze - to make it - �improve it. The man did it at a time when Dick wasn' t there. This , !ladies and gentlemen was Vitenam - that' s how terrible it was . iMR. GAINEY: That' s beside the point - that' s his property. MR. RYAN: That ' s right . MR. GAINEY: How far did you go in to his property? MR. RYAN: How far did the man go that was . . . ? I, �IMR. GAINEY: Whoever. i iMR. RYAN: Yes. Dick, you will have to tell him, I don' t know. IMR. CUTIA: He cleared all - it was all shrubs . . . . MR. GAINEY: I don't care what was there - how far did he go into his property? MR. CUTIA: I told him what I wanted done and he cleared out his back yard . . . w ICHAIRMAN AMAN: Excuse me, I just want to make one point. My ,understanding is , these are the matters that are pending in lawsuits , lin court, I really don't want to get into briefs that have been Ifiled in court. Our job, as a Zoning Board is to focus on a much narrower issue and I, know that these background facts may shed some light but I really don't want to get into trying a lawsuit here - it is just not what we are here for, We are here for a much ,narrower issue - the Zoning Board does not have broad powers to deal with. trespass , to deal with nuisance actions , to deal with damage actions . . . that' s not our role. I I� i - 40 - I I! MR. GAINEY: I 'm trying to pinpoint , you know, one person saying I `, you've got a ten foot right-of-way straight back onto the property biline. How do you deal with - do they have the right to go across i the property line? �1MR. GANGL: If I may interject one point , this is a scale copy of ii Ithe survey map which Mr. Cutia submitted and swore to the accuracy of it. It was Mr. Cutia' s map - ten foot right-of-way. CHAIRMAN AMAN: I would like to exercise my prerogative here simply Ito say that we've got that in the record for what it 's worth for o r ;purposes and I really thing we should move on, otherwise we will b ilhere until 12 : 00 on this one case . IMR. RYAN: I understand that. 1 lIMR. LEO GANGL : Mr. Chairman, it' s the survey that he submitted in {his papers and he swore to and it shows a ten foot right-of-way an ! it shows that concrete sidewalk and it still existed. I saw it Viand my son say it - we have a lot of witnesses and many affidavits . I ! If we want to go back into the lawsuits and so on, you are going t The here a long time , gentlemen. (CHAIRMAN AMAN: No , I 'm not . . . MR LEO GANGL: We shouldn' t get into it. He has tried to open a I Noor there - the fact is he went over the ten foot right-of-way, the knocked that concrete sidewalk all to hell and it is so buried I IInow you can' t see one trace of it. (CHAIRMAN AMAN: Fine , let' s move on. MR. WILCOX: I would like to ask if possible , I hope this will be- come a summary question so that these people can answer and it will 1 require no furtherebuttal , I hope. Because the matter of the pre- scriptive right is going to be in the courts another - in another case, I do think that this Board should allow these people the opportunity to address themselve to the five key summary points (that Mr . Gang1 , Jr. made, namely, no financial proof of hardship, it ' s a hazardous situation, it's unfit for use in the neighborhood, a I comparison of the use before and now, self-created hardship and the concrete aidewalk makes six. Now, I think that this Board (feels, I can' t speak for the Board, but from what the materials that II � i! ii - 41 - (: we've had before, we are pretty familiar with the case. We've see i ' lots of affidavits , lots of papers and I submit , Mr. Chairman, that ilif these people woudl like to give short answers to those key ques '; tions by this attorney that may summarize the discussion and we ca ,, move on. i (SMR. RYAN: Excuse me , I think we have answered those in our pre- II jsentation and. . . ; CHAIRMAN AMAN: Are there any of those points . . . ? i ( MR. WILCOX: Alright, then we' ll look them up. �' MR. RYAN: And I have one point - just one point that I have to ( make or I feel in fairness to my client , I must make, and that is ` there is allegations that he has this second place of business . That is not true and I 'd ask Mr. Cutia to state for the record tha 1 the has no other place of business and he hasn' t had any other plac of business , If there is an affidavit, exhibit 9, then that exhibit is in error. It is possible that that is an error but for the re- 1cord, I 'd like you to stated Dick whether you have a second place Jor ever had a second place of business . i �MR. CUTIA: No , I do not. IMR, RYAN: Alright. If there is an exhibit 9 that says that he had a second place of business then it must be a typographical error. SECRETARY HOARD: Mr. Ryan, could that possibly relate to chronolo i ' gical first and second business - did Mr. Cutia have a business (before this one? �MR. RYAN: I really don't know what exhibit 9 is and I have a feeling it might be a typographical error, What is exhibit 9 that you refer to, do you have a copy of it? i MR. GANGL: You will find it in your record that you are trying to +submit, two affidavits from your client both of which state that . MR. RYAN: The brief or th-e record of appeal? MR. GANGL: Yes , two places - two different affidavits , both of �iwhich- state its a second place of business, It would be curious i (;its a typographical occurring the same way . . . AR, RYAN: Okay, if its curious or not , it' s an error because he has none and he has had none . I� i 42 i' !MR. ANGELL: Or a third place? iI IMR. RYAN: No, nor a third place. He has some relatives that are in I the produce business now the Cortland Produce is a pretty good, ''substantial operation over in Cortland. i MR. ANGELL: No, not no a place of business on the Elmira Road. MR. RYAN: Okay, that - his brother runs a place called the Salad {Market, what' s his name . . . ? I !MR. CUTIA: Robert . IIMR. RYAN: Robert Cutia runs a place called the Salad Market on ,Elmira Road and Dick had loaned him some money and you've been paid i back the money and . . . IMR. CUTIA: We started out as partners but as of June of 79 it was !dissolved. IMR. RYAN: Did you ever run your business over there or anything? iMR. CUTIA: No, nothing . MR. RYAN: That' s his brother' s place - Bob Cutia. �ICHAIRMAN AMAN: Thank you very much. f MR. RYAN: Thank you. i ICHAIRMAN AMAN; I ' ll call the next case please. MR. LEO GANGL: I ' d like to answer some of the things that were brought up . . . (CHAIRMAN AMAN: Mr. Gangl I relaly think we have it in mind T the ('points have been made. I appreciate your presentation. Thank you. i I i I I I i t•: is 43 -. i I BOARD OF ZONING APPEALS COMMON COUNCIL CHAMBERS CITY OF ITHACA, NEW YORK li JUNE 2 , 1980 I' i EXECUTIVE SESSION I ii APPEAL NO. 1302 The Board considered the request for a use and area variance under ;`Section 30. 25 , Columns 2 and 3 and Columns 4 , 6 , 7 , 10 , 11 , 12 , 13 (land 14 to permit continued operation of a produce business at 2062 I� Second Street. The property is located in an R-3b use district in !which a produce business is not permitted, and the property is also ideficient in required off-street parking, minimum lot size, minimum ;!street frontage, maximum lot coverage and front, side and rear yard setbacks . The decision of the Board was as follows : R. WILCOX: I move that the Board deny the use and area it variances requested in appeal number 1302 . iDR, GREENBERG: I second the motion. !VOTE: 4 Yes ; 2 No. Area and use variances denied. ,FINDINGS OF FACT: 1) The appellant showed no figures or financial I, proof of hardship. �I I, 2) Hazardous conditions are created in the neigh- borhood by the large trucks going in and out o the driveway. li 3) Comparison of use even five years ago and now i i shows that the business has doubled in volume. i II! i fl 1 I i I I I i I� i i i. I! I! 44 - i, BOARD OF ZONING APPEALS j COMMON COUNCIL CHAMBERS ! CITY OF ITHACA, NEW YORK JUNE 2 , 1980 I i I SECRETARY HOARD: The next case before the Board is Appeal number � 6-1-80: Appeal of Davnek Corporation for a sign i variance under Section 34. 3A-14 (regulations for a facia sign) to permit the retention of the existing sign at 706 Willow Avenue (On The Waterfront) in an I-1 (industrial) use district. The existing sign extends beyond the upper edge of the surface on which it is mounted, in violation of the "Building Sign" requirements of the Ordinance. IMR. DAVENPORT: Mr. Chairman, members of the Board, I am Robert ! Davenport, I reside at 283 Lansing Station Road, Lansing, New York I am president of Davnek Corporation, owner of On The Waterfront. Putting it briefly, we would like to retain our sign as it is . We fee that the change that would have to be made would detract from the sign. It is a minimal change. When we purchased the building two and one-half years ago we went through the Building Commissioner' s office and there were no infractions . Two years ago I requested a building permit - was given one, and once again there were no in- fractions . This is about the extent . . . MR. WILCOX: Mr. Chairman, do we have photographs? CHAIRMAN AMAN: I don' t see any. SECRETARY HOARD: Yes - we have a drawing. CHAIRMAN AMAN. What is in violation on this? IMR. DAVENPORT: The lettering following the circumference of the wheel. In other words , if the lettering was to go across the hub of the wheel , it would comply. It took them - the inspector said it took him five years to find it. CHAIRMAN AMAN: Let me make sure I understand. It is not the heig t i lof the wheel? `MR. DAVENPORT: No. CHAIRMAN AMAN: You wouldn' t change that at all? iMR. DAVENPORT: That would not be required. It would be required 1hat Iwe take the lettering off following the circumference - place it across the hub and lettering across the hub of a ship' s wheel just ';doesn' t seem to be the proper way. Anyway this wasn't found in ou i i i i I� i - 45 - iifirst investigation when we purchased it , our attorneys inquired and jthere were no violations . At the time I applied for a building pe - I Imit there were no violations . i SMR. GAINEY: The question seems to be the width of the letters? MR. DAVENPORT: Excuse me sir. The question is the fact that the letters go around the top of the wheel . . . MR. ANGELL: Or the sign extends over the top of the building, is that . . . ? SECRETARY HOARD: The actual problem is that the . . . MR. DAVENPORT: The placement of the lettering. SECRETARY HOARD: Well , the whole thing is a sign under the defini tion of the Ordinance. i MR. DAVENPORT: If the lettering was removed it is not a sign. SECRETARY HOARD: I 'm sorry - it is a sign because of the pictorial I - if it were just a backing board or something, that would be dif- ferent but under the definition of a sign, the wheel it would be part of your symbol or pictorial thing - the fact that even if you 1put all of the lettering down on the lower half the whole thing would The considered a sign. Now the other thing you referred to about f nd- i � ing - taking five years, we did not have a sign inspector until I ( last year. That was when all the non-conforming signs . . . �MR. DAVENPORT: When did the Sign Ordinance go into effect? SECRETARY HOARD The Sign Ordinance went into effect in 1972 but anon-conforming signs were permitted to remain until August 31 , 197 and we didn' t start inventorying all the signs until we got a Sign Inspector last year. So his saying that it took five years to fin lit - he wasn't here . , . IMR. DAVENPORT: I 'm, repeating words of the man in the office. !SECRETARY HOARD: Yes. ,MR. DAVENPORT: The infraction I quote is minimal and he said that all I would have to do to meet the letter of the law is to place lthose letters across the hub of the wheel . That is his work, not Imine. MR. WILCOX I would say though that the wheel itself is interpreted as a symbol as a sign and that extends - what he probably - I 'm just I ii 46 - I guessing the fellow that talked to you probably guessed that the words weren' t above the building and it ' s okay but I would submit that he is in error. IMR. GAINEY: It looks like, in this drawing that they are trying t fit it into the square - the rectangle below. ,' MR. DAVENPORT: That is what they told me. ! MR. GAINEY: That is not the sign. The sign is the wheel . MR. ANGELL: In order to comply the sign would have to be cut off at the roof line. ! MR. GAINEY: Is this a wheel that they bought or they just made? IMR. DAVENPORT: I 'm assuming that it was made. It doesn' t look like anything that could just be purchased. IMR. GAINEY: The thing I 'm looking at is if it were just made smaller and brought within the sign limits that ' s what he is trying to . . . i MR. DAVENPORT: Well either way, I mean - it is going to be a costLy item. ( MR. GAINEY: Do we have any figures on what this might cost? i SMR. DAVENPORT: No, I have no figures . ! MR. WILCOX: The thing I want to get straight is , if in your mind I you think merely putting the lett ering in the middle is minor, I would agree with you publicly. However, that is not necessarily , what the Ordinance means now. Whether the removal of the top of the sign is minor or not, that is open to debate. MR. DAVENPORT: Well if you remove the top of the sign the whole sign has to go. SMR. WILCOX: But I just wanted you to be clear that in our deter- amination, we are not looking merely for putting the lettering in I the middle - this being a small item because that is not the prob- 11em,. The problem is that the sign extends over the roof top. It i still may - that ' s not to say that it -still might not be found to The a minor problem, I can' t speak for the Board. I just say that i want you to have a clear definition as to what we are deliberating t Ion. It is not just moving some letters . MR. DAVENPORT: Well why was did the inspector lead me to believe I i I i I I. I - 47 - I; ithat this was the way it would be corrected if the variance wasn' t i ; issued? MR. WILCOX: One of the reasons you have citizens Board of Appeals j' is so the city employees - if they make mistakes - and I 'm not ! saying they did - you have some remedy. MR. DAVENPORT: That' s all I have to say if there are no further h (, questions . it ! DR. GREENBERG: This isn' t directed at you but we may as well get ,I ! some information while you are present. How would the sign, as fa las size . . . in this area SECRETARY HOARD: It would be conforming, the problem is just that ! it extends above the roofline . ! DR. GREENBERG: Was it well , conforming, I mean, is this a small 1 ( sign compared to what can be put up if - what would be - what is lits size compared to what would be allowed? ( SECRETARY HOARD: Well , I am not sure what the frontage of the ; building is. It' s got quite a bit of frontage so it would be allowed quite a large sign and I think it is well within that limi . DR. GREENBERG: So we do have to consider that this may be the i ; lesser of a more conspicuous sign? SECRETARY HOARD: Yes . IMR. GAINEY: Let me ask you, if they took this rectangle and just moved it up, would the sign be conforming? ; SECRETARY HOARD: It would still be - that would . . . MR. GAINEY: The whole sign . . . ( SECRETARY HOARD: You would have a false front like a . . . jMR. GAINEY: Yes , but you know, the whole sign is above MR. DAVENPORT: But again, they told me, in the Building Commissioner' office that in every other respect the lettering size, the size of ( the sign, in reference to the size of the building did conform. ' Thank you. ( CHAIRMAN AMAN: Any one wishing to speak for the variance? ; LADY FROM THE AUDIENCE No , but I have a question. What was the I purpose of the sign law originally? This was in effect since 1972 Is this the date it went into effect , the Ordinance,? 48 - (CHAIRMAN AMAN: Yes. It did, and there was a lead time given, a ,number of years. (;LADY FROM THE AUDIENCE: Okay, what was the original purpose of the I ;Ordinance? i (CHAIRMAN AMAN: It was to give people enought time to remove non- conforming signs. (LADY FROM THE AUDIENCE: No, but why - did we have signs in Ithaca that were obnoxious , is this the purpose? CHAIRMAN AMAN: Apparently the legislature- the legislating body ,thought that was probably the case. SECRETARY HOAD: Could you identify yourself ma' am? 1PHYLLIS DAVENPORT: I 'm Phyllis Davenport. CHAIRMAN AMAN: If you want to make a formal statement , please come yup here. If you just want information I am happy to do that. IMR. WILCOX: Common Council passed the law about Sign Ordinances . IMRS. DAVENPORT: Yes , but why? MR. WILCOX: Because they represent the people of the city of Ithaca and the people of the city of Ithaca don' t want a lot of big signs . MRS. DAVENPORT: Well this is what I 'm asking . . . IMR. WILCOX: So that you have to have it written into an Ordinance. . IMR. DAVENPORT: May I come back . . . (CHAIRMAN AMAN: Do you have something to add to the record of this case? IMR. DAVENPORT: I sure have. MRS. DAVENPORT: It seems to me, you know , . . CHAIRMAN AMAN: Excuse me, I 'd be happy to talk with you later abo t it, but we have a docket to get through now. IMRS. DAVENPORT: Okay. CHAIRMAN AMAN: Thank you. IMR. DAVENPORT: Sir, you said that the people objected - that' s why ithe Common Council . . . ? IMR. WILCOX: I said the Common Council represents - is the legislative E body that represents the citizens of the City of Ithaca and if the i pass a Zoning Ordinance it' s to be upheld. And it' s also to be , appealed at times . Are you sure you want to say something? i i ii - 49 j I; !MR. DAVENPORT: I misunderstood what you said. But I will say this , iI that all of the neighbors that I contacted actually had to come out i' !and look to see just what was going on - what the sign was . i IISECRETARY HOARD: Well , I don' t think the Ordinance was written with l ,your sign in mind. It' s just that it doesn' t conform to this Ordi- nance and therefore it must go through this body for either a vari lance or iMR. WILCOX: Is there anyone speaking in opposition of this sign? ; That would be the next question anyway. CHAIRMAN AMAN: Is there anyone here who wishes to speak in opposi- tion? Hearing none we will move to the next case. If EXECUTIVE SESSION i IThe Board considered the request for a sign variance under Section i34. 3A-14 to permit the retention of the existing sign at 706 Willo Avenue (On The Waterfront) in an I-1 use district. The existing sign extends beyond the upper edge of the surface on which it is mounted, in violation of the "Building Sign" requirements of the Ordinance. iMR. WILCOX: I move that the Board grant the sign variance requested in appeal number 6-1-80. I SMS. DE COMBRAY: I second the motion. VOTE: 0 Yes ; 6 No. Sign variance request denied. FINDING OF FACT: 1) The sign extends above the roof line and it appears that it can be lowered below the roof line without undue financial hardship. i t ; i i i i i I i i i i II - 50 - i i I; BOARD OF ZONING APPEALS COMMON COUNCIL CHAMBERS CITY OF ITHACA, NEW YORK i JUNE 2, 1980 �iSECRETARY HOARD: The next case Mr . Chairman is appeal number i6-2-80: Appeal of Mobil Oil Corporation for a sign variance under Section 34. 8A (requirements fo sign setback) to permit the retention of the existing (and it is no longer existing. Mobil Oil took the sign down) the free-standing sig at 540 West State Street in a B-4 (business) II use district. The sign that was there failed I� to meet the minimum setback requirement of to �! (10) feet from the public highway and projectEd within eighteen (18) inches of a public sidew lk IMR. HOCKEY: My name is Jim Hockey, I 'm a real estate representati e ,' for Mobil Oil Corporation and I am here to request a variance to pit i; a free-standing identification sign at our property at the corner cf , i State Street and Meadow Street, As it was indicated, this - what I 'we'd actually like to do here is to put a sign up that we've had I, there for a number of years that was removed when we received the ' violation notice in February of this year. The sign would be in + violation of the setback requirements and I have a map here - okay if I could put it out here in the middle? Or I ' ll pass it around. w; IT SHOWS THE LOCATION OF THE SIGN MARKED IN RED IN THE CORNER. What we would like to do is put it right back in the same location 4liat we had it before . The sign identifies the property as a Mobil w ! Self Service location. It ' s approximately 8 foot by 5 foot - roug ly forty square feet. Our problem here is that in trying to locate this sign any other location on the property. In trying to meet t e setback requirements we lose visibility from the north bound traffic on Meadow Street which is our major traffic flow at this service i station and in order to put it back ten foot from either right-of-way i i line plus ten foot from the side line the sign would be right in the i ! middle e middle o£ the yard and would be a hazard for traffic in the servic i Istation yard, We have a problem there in that the building is I ; located in the southeast corner of that intersection or so close to the street that without this sign being located where we had I' it for a number of years we just don 't have visibility for north i I' bound traffic and especially if they are approaching a light and I' ,I - i Band have a green light as they approach, they are past us before jl ! they know that we are there, anybody that is not familiar with our service station. I ' d be happy to answer any questions. i MR. WILCOX: Do you have any photographs? MR. HOCKEY: I don' t have a photo but I have a plan. !MR. WILCOX: Well , we've got the plan. j!IMR. GAINEY: It would be just the Mobil part, right, did you say i; Mobil? MR. HOCKEY: It says Mobil Self Service. You'll notice that the jdrawing shows Mobil Auto Clinic and where Auto Clinic is the Self i Service wording would be in there, which - the Self Service wordin shows in the bottom of the sign plan there. But your exterior di- �i mensions are shown there actual dimensions . I SMR. WILCOX: Let' s see - it substantially exceeds the required set (back? i I !SECRETARY HOARD: I might say at this point that after Mobil took the sign down, the Sign Inspector went down there and met with !representatives of Mobil and he could find actually, no real solu- ttion to the problem here of where to put the sign. If you move �!it back to meet the set back requirements it would be in the path lof travel for automobiles going in and out of the station. One ;suggestion of the Planning Board was to cantilever the sign so that lthe sign post would be well back with-in the set back limits but the i sign would be out where it would be visible. Well , then you are adding to the amount of material up in the air - so I don' t know that that' s a very good solution either. So we have looked at it i, i; land it was our suggestion to Mobil to apply for a variance. �R. GAINEY: How many square feet are in that - sign - this sign is ,within the limits? !SECRETARY HOARD: It is within the limits , yes . INR. WILCOX: The Planning Board recommended the appellant discuss i ;with the staff possible alternatives. Have you got more than one i !Ifor two alternatives?� 11 18ECRETARY HOARD: They were suggesting that Mobil go back to the I, lPlanning stuff for alternatives I �i !i j - 52 - ,I MR. WILCOX: Well the sign - the size of the sign is alright? SECRETARY HOARD: Yes. ,IMR. GAINEY: It is just the closeness to the road, right? I I ( SECRETARY HOARD: Yes. The problem is the set back requirement �I eland that it projects within the eighteen (18) inches of a public sidewalk. 1 jMR. WILCOX: Okay, so the Planning Board . . . I IIMR. ANGELL: Are there any other gas stations on that road? e SECRETARY HOARD: Yes. SMR. ANGELL: Are there any other signs . . . ? I ; SECRETARY HOARD: This tends to be a problem with gas stations be- i cause of the - the locating of the sign - the Ordinance, when it was written didn' t take - didn't pay special attention to the problems of gas stations which have so much area used up for . . . MR. ANGELL: Are all the other stations in compliance? SECRETARY HOARD: I don' t know. MR. HOCKEY; Could I make a comment in that regard? I drove down #Meadow Street tonight. I think Mobil Oil Corporation is the only Oil Company that has conformed to the Ordinance . It seems like everybody else still has their signs in place. I don' t see how they could possibly not be in violation. As a matter of fact, I (don' t see where anybody, other than Mobil Oil Corporation has com- plied with the Sign Ordinance along Meadow Street. We've done it at every service station that we've received a violation notice. This is the only one that we've come in and asked for a variance on and we don' t expect to come in on others, �DR. GREENBERG: But you must have been in communities where sign (regulations are enforced where service stations have to be very modest in their signs and traffic will flow by them and the entire community is enhanced by these small signs . MR. HOCKEY: Yes we have. IDR. GREENBERG; And this is what we are hoping for, obviously, in I 'our community. SMR. HOCKEY: Yes we have. You are absolutely right and we comply An most cases where we comply in all cases we don' t take any- l l - 53 - ( body to task, we come in and request a variance if we are in viola ! tion and most communities where we have an ordinance with a small sign - usually you are able to locate it at some portion of the yard. We have a very unique case here in that we are on the north I east corner of the intersection, we are serving mainly north bound ' traffic and the buildings on the southeast corner of that inter- section come right out to the sidewalk. So, without that sign at the corner people do not have any idea of - that the fact that the3e is a Mobil Station there, unless they are local residents and familiar with it. DR. GREENBERG: Which is the case . . . �MR* HOCKEY: By the time you are able to see the identification on the building you are past us . You can' t slow down - if you try to you are going to get hit in the rear end. MR. ANGELL: What would happen if you put it on the extreme northe n end of your property? MR. HOCKEY: That would be fine . That would also help. But in order to meet the setback requirement we have to come ten foot in from the property line in the front and ten foot from the side line . We are in the middle of the yard so to speak - we are right in the ( traffic pattern. fMR. ANGELL: Oh., you mean ten foot in from the adjoining property? MR. HOCKEY: Yes . MR. WILCOX: Well then our do I understand that you are going to do a boom situation or you want to just - you said you want to put it back where it was? MR. HOCKEY: That' s right, yes. That was our request to put it back where it was. MR. WILCOX: And that is how close to the street? MR. HOCKEY: I think we could move it to some degree , you know, if a Ivariance could be granted here but to meet all setback requirements , i !we' d have to go without an identification sign. �MR. ANGELL: Tom, then if this is the case, then most of those other i , stations are in violation also, is that right? jSECRETARY HOARD: No. I' i j - 54 - I ! MR. ANGELL: No? i1 SECRETARY HOARD: The ARCO station is in violation but it is be- ; cause it has a billboard sign. The BTS Tiretown is in violation. 1 ! Manpower Texaco is conforming, Moe ' s Exxon is conforming - that' s Mall the gas stations along there. You see , this is a corner situ- I! ation and you have a right-of-way on your north side too. Is that ' right, as I understand it? MR. HOCKEY: Yes we do. We are surrounded -well we have, of ; course, a public right-of-way on both our south property line and I lour west property lame and on our north property line is a common fright-of-way to get into the properties in behind. I � MR. WILCOX: Okay, but still they say - it substantially exceeds the required set back - what is substantially? I 'd like to know dhow substantially we are talking about? How close to the street it is? I ; SECRETARY HOARD: It is within eighteen (18) inches of the sidewal land it supposed . . . MR. HOCKEY: It overhangs the right-of-way. SMR. WILCOX: It does? Now in your opinion, how far back could i 1you move it and still not lose significant amount of exposure? MR. HOCKEY: We could move it back and we could get it back outsid Ithe eighteen (18) inches. We wouldn' t need that variance. We would need a variance on the ten foot setback but we would not nee ja variance for the eighteen (_18) inch setback from the sidewalk. MR. WILCOX; Well , okay, we have already set ten feet back as , really going to screw up your space, right? MR. HOCKEY: Ten foot back, yes , would put it right in the middle of the yard. The pole would be out where traffic is trying to mov ` around the yard. ' MR. WILCOX; How about five feet? MR. HOCKEY: The leading edge of the sign? MR. WILCOX: Well I assume that - yes, because you are interested ,n exposure we are interested in where the edge comes in the pos , Obviously you could shift the sign on the top probably but you I want to get it out as far as you can, i SMR. HOCKEY: Yes , the leading edge of the sign, as I say, we could iiget back 18" from the right-of-way which would put the pole some ; 41a foot back from the right-of-way. Or excuse me, no - that ' s 8 Iwould be about 5a foot - the pole itself, the leading edge of the �i ! sign would be about a foot and one-half. MR. WILCOX: And that would hurt your area but not kill it and you 1would still be visible from the street? MR. HOCKEY: To some degree, yes. MR. WILCOX: Do you have any idea of the cost of that? � MR. HOCKEY: I don't think we are concerned with the cost. MR. WILCOX: That' s what we like. MR. HOCKEY: I don' t think that financial difficulty is a reason 11to ask for an area variance anyway, is it? Shouldn't we be talking practical difficulty and that ' s our problem here is the practical difficulty? MR. WILCOX: Well , that' s the Planning Board' s . . . MR. HOCKEY: We are not looking for a use variance - we are looking I for an area variance. I CHAIRMAN AMAN: Any further questions from the Board? 3 MR. ANGELL: Where did they figure on cantalevering that from? From the building itself? MR. WILCOX: Well they didn't, I don' t think. I think Tom just su - i Igested that . Right? SECRETARY HOARD: No, someone at the Planning Board suggested that �IMR. WILCOX: Mr . Chairman, I would just like to submit that in man , cases the appellant comes up with at least a couple of alternative iso that at least we can deliberate. If he wants to make just one proposal and that ' s it, is that it? IMR. HOCKEY: Our request is a variance to put the sign back where fit was before. As an alternative we could - we 'd like to keep it at the intersection of the two streets , moving it back so that the leading edge of the sign would be no closer to the street that , eighteen inches . So, instead of requesting a variance from both I 11statues, we could reduce that to a request for a variance of one I statute, the eighteen inche requirement , as an alternative. As a i' 56 - ( third alternative, we could move the sign to the north property biline - we could move it back the ten foot from the right-of-way line !but we would request a variance so that we could keep it tight to l !the north line. That way we would still get our visibility of north bound traffic and we could get it back from the street line i ,but we 'd have to be close to the north property line though. By moving it in ten foot from the north line and ten foot from the I ;street line puts it right in the traffic pattern. �MR. ANGELL: If you put it on that northern boundary - would that 4bostruct any vehicular traffic? What is next to you, I can't even }remember. That is another station? IIMR. HOCKEY: TEXACO Service Station. lMR. WILCOX: But they would need a variance for that. ! MR. ANGELL: Yes that' s what I understand that, but would it ob- struct that station in any way? !MR. HOCKEY: Would it obstruct their visibility? MR. ANGELL: Not their visibility I 'm not too concerned with their visibility - I 'm concerned with obstructing traffic flowing into !their station and into that lane . . . !MR. HOCKEY: No, we would keep it on our property, not on their { property. We don' t have common use, a SMR. ANGELL: There is no common useage through there or anything j else? w lMR. HOCKEY: ,No, I don't believe there is . MR. ANGELL: In other words, it wouldn't be in anybodies way if it were placed there? IMR. HOCKEY: That is correct, MR. WILCOX: It' s too bad we didn' t have a photo, it may have ! !helped. MR, HOCKEY; Of the sign itself? IMR. WILCOX: Well , the area, yes . I don't know if we will run int !! this again or not. I would suggest that we have photos because th y Ican help a lot , CHAIRMAN AMAN: Any further questions from the Board? IMR. ANGELL : Then it wouldn' t obstruct the visibility of their sig `' in that ? I! i - 57 - r ! MR. HOCKEY: No because their sign is closer to the street. Ten I foot back would put our sign behind theirs . I don' t understand jhow theirs can be legal . I walked down there and their sign seems Ito be butting right up to the sidewalk. I ; MAN IN THE AUDIENCE: If I may . . . Ii CHAIRMAN AMAN: Are you here to speak on behalf of the variance or ; against the variance? ! SAME MAN: No, I would like to speak - well , neither. I ' d like to speak on behalf of the Texaco sign, This man has made certain allegations against the Texaco station which are false so I would ; like to just . . . ;; CHAIRMAN AMAN: Alright, if the Board is satisfied that they have o further questions then . . . MR. WILCOX: Well , is there anybody else in . . . IMS. DE COMBRAY: I just want to ask one more question of the Mobil iman. You are requesting first a variance to put it back in the ; same place, MR. HOCKEY: That is first what we would like to do. SMS. DE COMBRAY: Alright, and if that is not granted you'd accept Cne I� , of those alternatives? iMR. HOCKEY: Any one of the three would be useable to us . Anything less than any one of those three would leave us without an identif' - Ilcation sign, as we currently are. IMR. WILCOX; That was the main point to see that - I didn' t want y u to leave you thinking that you only had one proposition and that Iwas it - that you are at least flexible . �ICHAIRMAN AMAN: Anyone here wishing to speak. on behalf of the vari Bance? (no one) Anyone here wishing to speak against the variance . 0 SMR. BENDER: My name is Larry Bender, I live at University Park in Ithaca and I 'm a corporate officer for Oil Can Larry' s . Our i station at Meadow and Seneca Street, the sign is 17 ' from Seneca I ;Street and 15 ' from Meadow Street so we are well within the Ordi- Inance . As a matter of fact the old post is still there from where I ;the sign was made originally when Texaco moved it back. We are ;also within the 18" of the clearance from the sidewalk. If that I! I� i' I 58 - i I; ; sign were to come straight down it would miss the sidewalk by two ifeet. I don' t care where the Mobil puts their sign back up in the ! corner or where it was , I question - if they put it in ten feet on i� lithe property line - then I don't know if this - I 'd have to see it i diagonal - it' s very possible with my sign being back 15 ' and 11theirs being 10 the angle could eliminate my sign entirely. If th y jput theirs back up in the corner, I could care less. That is all I, that I am saying . If they get the variance then I 'd like to have the opportunity to take some kind of measurement to see what their I variance is going to do to my sign. Because I don' t want to have Ito fight for a variance to move mine out because Mobil moved theirs I�iback so I can see mine. JMR. ANGELL: Can we defer this until measurements are taken? I !think we can, can' t we? I R. GAINEY: I think you are jumping a step ahead. First of all yo aven' t granted this, second of all you haven' t made a decision whe e you are going to put it . R. ANGELL: Right. 1-14R. GAINEY: Third of all , it has nothing to do with . . . . . . its a i! ,completely different thing. �R. ANGELL: Unless we granted a variance tentative on not obstructing I � h_e Texaco sign - can we defer the decision until that time? H SECRETARY HOARD: You can defer the decision any time you want if y u i feel that you need more information, R. ANGELL: Okay, if we ask for this information who will supply i ? ' exaco or Mobil? �HAIRMAN AMAN: Make this clear, you are saying, what position woul lihe sign be in if there were to be possible problems . R. BENDER: I 'm saying that if their sign were ten feet in and on i he property line, inasmuch as my sign is back further than the ten eet then on a diagonal line for anyone coming up the street it is o essible that the Mobil sign could totally obliterate mine because would . . . maybe it wouldn' t , maybe you wouldn' t even notice that t was there, I don' t know, I never even gave a thought to the sit tion until he just now mentioned it. Texaco got a letter this mor lled me - ing at 11 : 00 in New Jersey saying this meeting existed and ca w i 59 - I jand said you ought to go over there and see what is going on. So wasn' t even aware that this was happening . I never even - I could ! take a camera and start shooting some pictures - that' s , you know, lget some kid to stand there ten foot in with a stick and hold the stick up in the air and see where it comes out . I would also de- pend on how high the Mobil sign was . Maybe if they went a foot to er ior two foot higher it could be worked out but I 'm just curious - you I know, they come in here and set up a sign at the right angle , they i could put me out of business . CHAIRMAN AMAN: I hope this is , if we get to this point , it is the kind i ,of thing that perhaps you could work out. MR. BENDER: Yes , I don't - as long as the sign isn't too foot lhigher or lower I could care less but I 'm just - but it is possible jat right angles - they could really put us right out of the line. I CHAIRMAN AMAN: Thank you. R. HOCKEY: Gentlemen, he mentioned that the notice which he just received, today? I would like to comment that we mailed it May i 119th to TEXACO, Inc. in Atlanta, Georgia which is the address on i jthe tax rolls . So it did go to the address on the tax rolls , ap- Oarently it took. awhile for them, maybe , to get it . . . i �R. GREENBERG: They don' t have a very well oiled organization. i I i 11� i i i , .i i �I I�� - 60 - I �? BOARD OF ZONING APPEALS j COMMON COUNCIL CHAMBERS CITY OF ITHACA, NEW YORK JUNE 2 , 1980 �I "j EXECUTIVE SESSION i, �IAPPEAL NO. 6-2-80 The Board considered the request for a sign variance under Section " �34 . 8A to permit the retention of the existing free-standing sign a 540 West State Street in a B-4 use district . The sign fails to meet the minimum setback requirement of ten (10) feet from the public " ,highway and projects within eighteen (18) inches of a public side- walk. IDR. GREENBERG: I move that the Board grant the sign variance requested in appeal number 6-2-80 with respect i to the ten (10) foot setback from each corner i but not to grant the variance with respect to the eighteen (_18) inch overhang. 11CHAIRMAN AMAN: I second the motion. partially ;VOTE: 6 Yes ; 0 NO Sign variance requests rante ,FINDINGS OF FACT: 1) The variance is granted in that there is a i definite hardship in the layout of the property. j 2) The Building Commissioner' s office has found i no other alternative ways other than the exist- ing xis -ing way to replace the sign in another spot. " 3) There were no objections from the neighbors i i bounding the property. li 4) Mobil Oil acted in good faith in that they removed the sign upon receiving the first i notification which ordered the sign down. i i i l i I " I i! it i 61 - i i BOARD OF ZONING APPEALS COMMON COUNCIL CHAMBERS I' CITY OF ITHACA, NEW YORK JUNE 2 , 1980 CHAIRMAN AMAN: The next case Mr. Secretary? i, SECRETARY HOARD: The next case is the appeal numbered 6-3-80 : Appeal of Albert and Myrtle Johns fo a sign variance under Section 34 . 4B (regulations for projecting signs) (Seneca Printing) in a B-2a (busines ) use district . The sign projects mor than eighteen (18) inches from the face of the building, the maximum pr - jection permitted. „ I think they were going to go to the Planning Board. The next �Jappeal is appeal number 6-4-80 : Appeal of Dewart, Peterson and Creighton for a sign variance under Section 34 .4B (regulations for pro- jecting signs) to permit the retention of the existing sign at 201 North Aurora Street (Pine Tavern) in a B-2 (business) use district. The sign projects more than eighteen (18) inc es from the face of the building, the maximum projection permitted. This sign has received historic designate n from the Landmarks Preservation Com- If missi.on. Is there anyone here to present this case? (no one showed) The i next appeal is appeal number 1304 : Appeal of Vi Deibler, Richard Inman, Alan J. Boardman, Jacqueline Wintermute and Robert L. Wanner for i an interpretation of Sections 30 . 35, Paragraphs B-84 and B-92 (definition of "Structure" and "Use") , 30 . 33 , Paragraph A (exceptions to height regulations) and 30. 49 Paragraph C (extension or enlargement of non- conforming uses or structures) con- cerning the erection of a radio towe at 815 South Aurora Street (South Side Fuel Company) , A building permit j (# 6178) has been issued for the tower; j th_ e appellants are requesting the interpretation as aggrieved parties under Section 30. 58 , Paragraph B-1 i (Interpretation) . IIAnd who is presenting this case? IMR. BOARDMAN: My name is Allen Boardman. I live at 15 Hudson Place jup on south_ hill and I am adjacent to I am in the neighborhood o South Side Fuel Company. I 'd like to just refer to the zoning map 1lto show you the area we are talking about, This was a map from the 1961 zoning regulations which shows the city line going straight i 1 62 - I' across on south hill and the switch back in the Lackawanna Railroad track and South Side Fuel Company was - is located right about where the switchback ended and where it meets Aurora Street . In 11963 that territory was annexed to the City - this little projection I Mout here (pointing to the map) . The Lackawanna discontinued the ' railroad operation sometime around 1958 leaving some unused land land that land eventually was bought by Mr. W. Dennis . I think per pahs Mr. Harlan Fish, Sr. may have owned it in between, I am not !! sure. Mr. Dennis developed Hudson Heights Apartments and also put in a street which is now known as Hudson Place and sold off the If building lots and the individual lots for building on the lower ! side or the north side of Hudson Place. I have one of those lots ( there are two of them, number 13 and number 15 . The fuel company lis a non-conforming use. It is in a residential zone but it was ; there before the city lane was extended so that it has been grand- Ifathered in as a non-conforming use. Until recently we 've had no , problems , the grounds up there have been well maintained, the Fuel I Company not creating any unnecessary noise or any unnecessary traf i lfic and there has been no problem. But on the morning of March 28th �jwe were quire surprised to see this radio transmitting tower, a tower which supports a number of radio transmitting antennas . It � it s approximately 120 feet high with a 20 foot tower on the op and it is supported by nine guy wires going out to three different anchor posts . The anchor posts are in a triangular configuration each approximately ninety-five from the base of the tower and ther were three wires going down - three wires at the forty foot level , i ! one to each post, three at the approximately eighty foot leveland i jthree at the one hundred and twenty foot level , down to each post. Aurora Street opposite the Morse Chain driveway just to show you generally what the antenna looks like , not to make it look any (better or any worse. The other photo is taken from Hudson Place ; just below the intersection with Coddington Road, if you were to , come out of Coddington Restaurant and come across the street , that is about where it is taken from. There are two others , one is a ' telephoto shot taken from my front door to show mainly the configu !ration of the antennas on the tower, just to show what we are - 63 - i Iitalking about. CHAIRMAN AMAN: Just to make this clear for myself, you are saying it violates the Zoning Ordinance? f; IMR. BOARDMAN: Yes, we are protecting this under Zoning Regulation � 30. 49c a non-conforming use or structure can neither be enlarged nor I lextended and also under 30. 33a the height regulation concerning the P area that the vertical structure can take up. And we will also be making references to 30. 58d concerning the Municipal Code although I am not really protesting it under that. Anyone care to see these ,slides? Okay. Now we have two categories of concerns up there . One is the safety because of the propane storage at the fuel com- 1pany and the other is a possible detrimental affect on property i 1values . I 'd like to talk about the safety oh., let me just menti n, I !we saw this tower on the morning of March 28th and nothing had existed there before on the morning of March 27th - it was quite a surprise to us , it was an excellent display of construction effi- ciency. I never had seen anything go up so fast before. We called the City to find out what was happening and the City sent their i inspectors up and found that no permit had been applied for before ,then so at this point Mr, Fish applied for a building permit. We i talked with Mr. Hoard complaining about a possible detrimental i affect on property values and Mr. Hoard took some time to decide whether or not to accept or reject the permit. While he was wait- ing whale we were awaiting his decision a catastrophe occurred up there and the building which housed the three truck garage for the fuel company and the radio equipment for the antenna caught on fire. It happened sometime a little after 2 : 00 on the morning of ( April 17th. It was quite a surprise to us , I was awakened for som jreason, T don' t think it was the sirens , my - we heard these siren and usuallythey� are going up the hill to Ithaca College so we jus forgot about them, except they seemed to stay in the neighborhood. My wife finally got up and looked out the front door and found the whole place ablaze and I quickly tried to arouse my three children i land get them in the 'car while I got on the phone and called my Mother three tenants and told them to get out as quickly as possibl �I i i, i 64 - Mand we got out and went down the street about another five or six ;; hundred feet until the fire was brought under control. It was quite la frightening sight to see this whole place go up and to hear the i , propane tanks go off. There happened to have been three propane I' I1tanks in the building which caught fire and they went off one at ' a time. And they made quite a roar. And there was also at least I I one explosion which I think may have been a gasoline tank in a truck, I don' t know. Now we have a safety concern up there in that Siwe don' t believe that everything possible has been done to prevent ! another fire from starting. I think some of the safety regulation I'; shave been complied with but because of the nature of the propane 'storage, I think we should do everything possible to see that a fire like this doesn' t reoccur. And one of the things that concerns jme, the building permit was granted four days after the fire and the li 'building which formerly housed the electronic equipment for the antennas no longer existed since it had been destroyed and they are currently in a building which has a wooden roof which does contain these propane tanks and I 'm concerned about two things , one whether for not the electronic equipment in there is what you call intrin- i sically safe. Section 500 of the National Electric Code states that only equipment which is intrinsically safe shall - intrinsically i ;safe equipment is that which cannot cause ignition, cause spark or any heat to set off an explosive vapor in its most explosive mixture. jMR. GAINEY: Is there anything in the law that says transmitting ,equipment has to be housed in a cinder block? SECRETARY HOAD: Transmitting equipment? No. �R. BOARDMAN: I 'm concerned that if these tanks should get a little (warm and release some gas through their safety valves that maybe i lIthis gas will get over by the transmitting equipment. I don' t know (whether or not the building department has inspected this to make I �Isure that the gas won't get into the - beside the building where the Itransmitting equipment is . That' s one thing, my other concern is !about the grounding on the antenna, is whether or not it is suffi- cient to take a lightning stroke without the lightning jumping to i, If you ,the roof of the building and setting the building on fire. �I I I II 65 - i: go down town over near the K-Mart parking lot and look up, you get Ila good perspective of south hill and from there you can see that this !is the highest point around and therefore - it is considerably higher Athan the power lines which go up south hill to Ithaca College. An I!it seems from this that it has a fairly high probability of being !(struck by lightning and therefore it is essential that there be no iI ' questions about the grounding on the antenna. (!CHAIRMAN AMAN: It ' s not our . . . I' IIMR. BOARDMAN: This is true , but—the permit is not supposed - for i an antenna - is not supposed to be grounded unless it meets all supplementary safety regulations . IMR. GAINEY: Has this been inspected by the Fire Department after the Ifire to see that it complies with all fire safety standards? SECRETARY HOARD: Before and after. MR. GAINEY: No questions brought up if lightning strikes or . . . SECRETARY HOARD: The NFFA holds that with the tower there the tanks are safer from lightning than if the tower were not there. MR. GAINEY: That ' s from the National Fire Protection Association? {SECRETARY HOARD: Yes. MR. BOARDMAN; I contend that this is true if the antenna is grounded `properly. If the soil resistivity is low enough to discharge the antenna as fast as the lightning pours the current in. I called (Morse Collins today and talked with them about that I told them I ,was concerned about the possibility of the lightning hitting the I Itower and then jumping to the roof. He said if it not grounded i properly that is a possibility. And I think the Building Department ,should investigate a little further so - to make sure that we have not just something whi:ch, meets the code but something which does the best possible job of grounding the tower. SECRETARY HOARD: Well , you are getting beyond the scope of this ;appeal. IMR. BOARDMAN: Okay, now I want to get to the zoning , . . CHAIRMAN AMAN: If you could tell me exactly what it is - what is i 'your argument - how do you support the proposition that that tower ( there violates the Zoning Ordinance, not whether it is -%fe or unsafe r. i I - 66 - I I! dor anything of this sort but . . . i IMR. BOARDMAN: Okay, I am going to get to that . If it doesn' t meet ;supplementary safety regulations , it violates the Zoning Ordinance. 1CHAIRMAN AMAN: You are saying that a building permit shouldn't have ,ibeen issued if it didn' t meet the supplementary . . . ? !MR. BOARDMAN: Yes . CHAIRMAN AMAN: Okay. But aside from that . ;MR. BOARDMAN: Okay, 30. 49c states that a non-conforming structure may neither be extended or enlarged and we contend that - it ' s the !contention of our group that this tower is an extension of a non- 1 (conforming structure. The tower which was placed there in 1974 an I ,contained South Side Fuel ' s antenna and I think Direct Page ' s s !;antenna, we believe that was also a non-conforming structure but it wasn' t that high. The building was about fifteen feet, I guess, and 'the mast about twenty-five and the antenna on the top was another i. twenty so that the entire antenna was about sixty feet off the ground. It was noticeable if you looked for it but it didn't stand I ,out that much- in the neighborhood and so while technically we feel lit might have been - it was an extension of a non-conforming use, i didn' t bother us that much so we sort of forgot about it. But when (this tower arose one hundred twenty feet high plus the other twenty foot we got quite concerned. ;CHAIRMAN AMAN: How do you square that with 30. 33 which says that I jthe height limitations do not apply to broadcasting towers? �MR. BOARDMAN: Okay, there are two things we are contending ; that I, lth.e tower is there for the fuel company' s use, the fuel company is I la non-conforming use and this is an extension of a structure for a (non-conforming use. '!!SECRETARY HOARD: But that doesn' t make the structure non-conforming. '!The structure is exempted from the Zoning Ordinance by the height jlimitations for broadcasting towers , therefore it never was a non- �I conforming structure regardless of the use. You have to keep use land structure separate. BOARDMAN: Okay, this was one point, Our other point is that lin addition to South Side Fuel' s antenna there are these other I i! �i i' i l 67 - I I ;lantennas on there, particularly WNOZ in Cortland. They have a i Htranslator, this unit approximately one hundred feet off the group '. I , It has two TV type or yagi type antennas on it, the lower one is ; pointed in the direction of Cortland and apparently picks up the I !! radio signal from Cortland and goes down the cable into the build- � ing and it shifts to another frequency, comes out and goes up the tower into the upper antenna which transmits the program to Ithaca IThe second higher unit is pointed northward. We are contending ; that this - that before 1963 the South Side Fuel Company was not i l! primarily in the antenna leasing business and this is a new busine s j ithat this tower is being used for. I; ! CHAIRMAN AMAN: What changes , I mean what ' s the difference if you i ,Ican, you know, if two stations or three stations -- how is that a inew business? i IMR. BOARDMAN: Well the - it is our contention that the tower is f r I �! the primary use of the lessee, including WNOZ and that before the li 111974 tower went up , South Side Fuel did not go into the antenna ( leasing business . CHAIRMAN AMAN: Is there any change in the neighborhood in any way i i because of this , you know, you look at a tower and it is hard to iI tell ? i IMR. BOARDMAN: This is our concern that it will decrease property ivalues . If we attempt to sell the house, this , in the eyes of som i ; buyers will see it- as a commercial or possibly industrial neigh- !; borh.00d and will not be willing to pay as much for a house . ' CHAIRMAN AMAN: But as 'to the second point, how many channels or ! how many channels are on that tower R does it increase traffic , does i it change the character of the neighborhood in any way? i MR. BOARDMAN: It does not increase automobile or truck traffic, n( . ! But when you drive up on Hudson Place - when you are about 1 ,000 it ! feet away from it, it is fairly pronounced. r ! CHAIRMAN AMAN: That goes back to your other point which is the - i , you are saying the tower itself shouldn' t be there? I� MR. BOARDMAN: I 'm saying that the tower - when you see it , it gives is ! a commercial appearance to the neighborhood and we feel that this f i, ,I - 68 - , is detrimental to the property values . Something one hundred and I! forty feet high and one thousand feet away it' s about standing '; here, what sixty feet from the end of the room and looking at i i1 something maybe eight feet high. You can see it pretty well . CHAIRMAN AMAN: I 'm just trying to make sure I understand both of your ; points to separate the arguments in my own mind. i MR. BOARDMAN: It is our contention that if you . . . �' DR. GREENBERG: Has it affected your reception at all or interfere with . . . ? Ji MR. BOARDMAN: Pardon? IDR. GREENBERG: Has it affected any radio, TV . . . ? SMR. BOARDMAN: I am on a cable and it hasn' t affected mind but Mrs ; Campbell back there will be talking later - it has affected her l television set. It doesn' t affect people on a cable , no. It is our 'understanding that when someone wants to install something which i ;non-conforming it is the Building Commissioner is supposed to reject the permit and then ask the applicant if he still wants to go thro gh ;with it, to apply for a variance. Under Article 30 . 58d Special Re Iferral , when one applies , the Board of Appeals shall refer a vari- ance request special permit request and other matters to the Tompkins County planning Board in accordance with general municipal ;law 239-L and 233-M when such matters relate to property within ;five hundred feet of any Municipal boundary. This is right on the j';edge of August Street which is the boundary between the City of f ;Ithaca and the Town of Ithaca and it seems like the Commissioner should have requested the applicant apply for a variance here and Ith:e Tompkins County Planning Board should have had an opportunity also to look- at the application. And there is another part on 30. 58 Ithe same general paragraph- - B-3-c when one grants a variance - the I; �Igranti:ng of the variance will be in harmony with the general pur- i 1poses and intent of this chapter and will not be injurious to the ,neighborhood or otherwise detrimental to public welfare . We are `contending that it is potentially injurious to our neighborhood - i hfrom the property value standpoint. The general purpose of the f pur- ?. ilzoning regulations stated in 30 . 2 - this chapter is an act of 1i i 'f 69 - lsuance to the authority and provisions of the general city law to i. i! (promote public health, safety, welfare and the most desireable use hof land and to conserve the value of buildings and enhance the value sand appearance of land throughout the city. There are probably i ,between Grandview Avenue and Hudson Place and Coddington Road - there are probably twenty houses where you can see this antenna from either out in front or in the back - and feature these twenty houses Ias a property valuation of $1,000. - I don' t know if that is unrea- sonably or not - that' s a decrease of $20 ,000. which is considerably limore than the antenna cost to construct. The building permit lists lithe cost of the antenna as $9, 000. and it seems like it is possible here for a net decrease in land values to take place. We also found a couple of discrepancies in numbers on the applications . The appli - cation to the FCC listed the tower as being one hundred feet high !with a twenty foot tower on top and we found from construction draw- i ings or from counting the number of steps on the tower and the space between the steps that it was about one hundred and twenty feet high. And I also question the height stated on there. It states eight hundred feet, I don't know if this is supposed to be the top of the tower or the bottom of the tower.. SECRETARY HOARD: The bottom. �R. BOARDMAN: The bottom? Okay, then there is no - alright, then I �II'm not quibbling with. it. I thought the top was around nine hundr d !feet from what I could figure off the city - from one of the city charts . JSECRETARY HOARD: It says in this letter, elevation of ground above I mean sea level at antenna site - eight hundred feet. �R. BOARDMAN: Okay, I 'm not arguing with that. SECRETARY HOARD: It says overall height above ground - one hundred twenty feet . �R. BOARDMAN: Okay, we contend that the tower is one hundred and I twenty and with the top antenna it is about one hundred and forty plus or minus a few feet, SECRETARY HOARD: Mr. Fish has told me that the addition of the whi ,antenna raised it to one hundred and thirty-eight feet - still con- Isiderably lower than the Ithaca College dormitories . I' I 70 - I HMR. BOARDMAN: That is true but when it is four hundred feet from i1 your house . . . ! SECRETARY HOARD: No, I 'm talking about the statement you made that I! it was the highest structure on the hill - that is why it has no ' lights on it - no lights were required by FAA. IMR. BOARDMAN: I 'm sorry, I meant to say that itis the highest i structure within a radius of maybe three or four blocks and there- ! fore it has a high probability of being hit by lightning. MR. GAINEY: No lights are required on it? SECRETARY HOARD: No. In fact if they put lights on it, it would lead a pilot to think that that was the highest point in the area Mand he would fly into the Ithaca College dormitories . That was th 1f statement of the FAA. JMR. BOARDMAN: There is one other bit of information we found in - the research people found in the file and that is that WNOX in Cortland applied for application to place an FM translator in i j Ithaca in November of 1979 and received permission for the trans- lator. They had permission to put it up long before they had a tower and it was rumored that they tried to pressure Ithaca College into having them put the translator up there and that didn't work out so when it fell through they apparently looked a few other I� places and eventually this antenna wound up at the South Side Fuel i li and our contention- it is our considered opinion that maybe this i �I i really VNO V s tower and we feel it is up to Mr. Hoard to investigate i li and find out whose tower this really is how much is being paid b the lessees for the use of the tower . SECRETARY HOARD: * It is none of the city' s business . I MR. BOARDMAN: Tt is in this case - as to whether it is South Side ' Fuel' s antenna or whether it is —whether it is for South Side Fuel ' s j use or whether they have gone into the tower leasing business , as i far as a non-conforming use of the property is concerned. Sir , these has been an obvious difference of opinion between our group and Mr. Hoard, that' s why we are here tonight. We are asking you to get all of the facts you can, carry your investigation where � ever you have to and come to your own decision. I 1 I - 71 - ; CHAIRMAN AMAN: I understand . I IMR. BOARDMAN: Thank you. CHAIRMAN AMAN: Thank you. Is there anybody here wishing to speak ` on behalf of the interpretation proposed here? Please come forward. MR. SWARTOUT: My name is Dave Swartout, I 'm a resident of south hill. I would like to touch over some points just briefly here. ! Number 1, the construction occurred illegally on March 27 and/or i 28 , without prior issuance of the requisite permit which is required Eby City Code 30. 55. Number 2, the owner of South Side Fuel , Mr. Fish, must have been aware that the zoning questions would be raised about any proposed construction on this property. Several years ago Mr. Fish attempted to sell or lease a portion of this lot to b used in conjunction with proposed construction of new apartment !units . The transaction was not completed due to zoning restrictions . (Thirdly, Municipal Code Section 30. 24 requires that "no building o land shall hereafter be used and no building or part thereof shall `be erected, moved or altered unless in conformity with the regula- tions herein specified for the distract in which it is located. " And that district in this case is residential 3b. The one hundred !twenty foot high tower was constructed to replace an existing tower I�which was a substantially smaller in both height and cross sectional !area. The previous tower was intended to provide support for an 'antenna which. South Side utilized in the normal conduct of their business that was an activity which was permitted under a zoning grandfathering clause allowing South Side to operate a fuel distri- bution business in a residential 3b district. However, the new tower supports the antenna of Direct Page Communications and Terminal Tax' land Crown Broadcasting and there is ample room on the tower for more . i These business activities were not grandfathered as permitted uses under the zoning code. Under Section 30. 49c "a non-conforming use I I ray not be extended or enlarged to other structures except by means 6, f a variance granted by the Board of Appeals ." Number 5 , the con- i istruction we contend is - or I contend, I should say, is in violati n IPf Municipal Code Section 30. 33 Height Regulations . While broadcast- ling roadcas -%lng towers are specifically exempted from the height regulations ,i i i; is li li 72 - �I I� ! this is not a broadcasting tower. The radio operations of South �ISide Fuel KXH968 are specifically classified by the Federal Commun - i iIcations Commission as industrial not broadcast. They view them as i i ;, two separate categories . Since the construction is with five hun- i dred feet of a Municipal border, Municipal Code Section 3 . 58d re- jquires that the proposal be submitted to the Tompkins County Plan- I ning Board in compliance with general municipal laws 239L and 239M ( Further I would say, I would like to state my qualifications , I am is licensed radio engineer, licensed by the Federal Communications (; Commission and it was my understanding that it was Mr. Fish' s con- ; � tention that he needed this additional height or that the purpose �, of the additional height was to improve the radio transmission and reception characteristics of his own operations . I would say, in limy professional opinion, based on the terrain in that area, it was I; 1' a fairly insignificant change in terms of the percentage of height I above average terrain when you calculate that according to the FCC s methods using radials with points measured between two and ten miles Ion each radial. And that indeed there probably has been no signi- ficant change in his operations. The tower would appear to be con structed for the purpose of creating a new business and that is .i , leasing tower space to other entities . The old tower was clearly unsuited to pack any more on than it already had. Are there any i jquestions? iMR. ANGELL: Where are you employed? MR. SWARTOUT: WTKO radio. IDR. GREENBERG: Is the use for his other - this states the terminal ' cab and the paging system, are they commercial also or are they al! o Ibroadcasting? IMR. SWARTOUT: Neither of those well the only one which is broad I licasing, it' s a broadcast auxiliary service is WNOZ Cortland - Crow Broadcasting. The other two I 'm not sure of their classification i theymay be radio common carrier, Z haven' t investigated. All I ycFiecked was the classification of the radio service for which. the I tower was purported to be constructed.. ii SECRETARY HOARD: Let me respond to a few of these things since th s fi t 73 - was obviously filed counter to my issuing the permit. The questioll � of the building permit - there was a previous tower on this property. ' When this tower was erected no one required Mr. Fish to get a build- ing permit - so I would give him the benefit of the doubt that he wouldn' t think that he would have to have one this time since he wasn' t questioned before and the Building Department did know abou the previous tower, it knew when Direct Page wnet on there a few years ago because at that time Direct Page was trying to sell the ( Building Department things like you have on your belt. Also , Ter- minal Taxi was there - we 've got an affidavit or a letter from the stating when they went on the tower so there have been other uses previously that were not questioned by the Building Department. Y u raised the question as to whether it is a broadcasting tower or nol . Broadcasting - the term broadcasting - is not defined by the Zonin lOrdinance. A zoning law, when there is a question about the defini - tion, efin -tion, if it isn' t defined in the Zoning Ordinance you go to the (dictionary. Webster' s Seventh. Collegiate Dictionary, which T woul ( assume is fairly reputable, defines broadcasting as the transmitti g land receiving of signals either visual or . . . MR. SWARTOUT: I would suggest , if you would go to a more accurate i +unabridged dictionary, you will find that definition has changed. IIISECRETARY HOARD: There are several other definitions in here but in zoning you can use the broad definition if it is not otherwise specified, in fact we used the broad definition when we permitted 'WTKO to have its offices in a B-1 zone. MR. SWARTOUT: Okay, I will grant you that there may be a question (here and I realize that everybody wants to get home so I ' ll be 'brief on this. One last point , what I - I guess the main thrust o my argument is that given that there is a questionable interpreta- tion here which could go either for or against the permitted use o i IIthis tower - the further permitted use of this tower - it would seem to me that it would make sense to rule in such a way as to preserve !the characteristics of the residential 3b zone . It seems to me that 'where there is a question one should rule in favor of the intent o !the Zoning Ordinance in that particular area. And in this case the i i { 74 - i i linterpretation has run counter to that. CHAIRMAN AMAN: Are there any uses on this tower which would quali y i ! as broadcasting under your definition of broadcasting? IMR. SWARTOUT: There is one. i ! CHAIRMAN AMAN: So you would agree that the tower meets this defi- i Inition at least for that one use? IMR. SWARTOUT: I would not say so. It is an industrial tower as such because the main - it has an incidental broadcasting use and other uses as a part of it. There are several uses on the tower - however that doesn' t mean that I could say that that is the purpos i: of the tower in any given case. Because there was one common carrier � on it, I couldn't say that it was a common carrier tower. The pur- pose of the tower . . . CHAIRMAN AMAN: The BCC, as you probably well know, will divide th se i categories up for purposes that have nothing to do with what the Zoning Board has to worry about. IMR. SWARTOUT: Yes. ' CHAIRMAN AMAN: They have a regulatory mandate which is - couldn' t possibly be more different than what we are about. So their defi- inti,on of broadcasting, industrial and - is for entirely different ! reasons than what the Zoning Ordinance would be looking for. IMR. SWARTOUT: Okay, CHAIRMAN AMAN: I am just expressing my view - I don' t want to quibble about that word, but the fact that the tower does even have a broad- casting roa - casting use which you would define as a broadcasting use. Your pr - posal is that it has to be pure? MR. SWARTOUT No , my contention is that the main purpose of the tower - the reason the tower was built was for the purpose of leasing space to various communication entities . That was not something � which- was grandfathered into that particular plot of land. They were Ithe business of conducting a fuel distribution business was what was ! grandfathered and the associated buildings and activities therewith, including Mr . Fish' s radio operations . The other radio operations I are an entirely separate matter. They were not grandfathered and ! if they have been the cause for the erection of this tower then I i l ii i - 75 - i! think that is significant in this case. MR. GAINEY: Let ' s go a little further. Will they be allowed to ! add any more tenants to this tower at their fre discretion? SECRETARY HOARD: That' s part of what ' s before this Board at the present time. But to me the question is do we require somebody to eget a variance if they put a coke machine up in front of their I 'building? Now, is that a separate business? That generates more ,;traffic to the property than a little doohickey on the tower. MR. SWARTOUT: That little doohickey happens to be up about one hundred feet which the coke machine wouldn' t be, though. SECRETARY HOARD: But I 'm talking about things that are governed by the Ordinance and broadcasting towers are excepted by the Ordi- nance. You see that is the problem - this was not something that !wanted to do because I knew it would get a lot of opposition. Theie i his a fatal flaw in the Zoning Ordinance and that is that it exempt towers . As an enforcing officer, I can' t deny someone a permit on - well , you know . . . MR. SWARTOUT: It is your view that there is no doubt in the term broadcasting tower - there is no room for question? SECRETARY HOARD: No. If we fineline everything in the Zoning 10rdinance to the extent that you are talking about, very few thing r would be permitted in the City of Ithaca. There are a lot of busi- nesses that aren' t named in the . . I '!MR. SWARTOUT: Well it seems to me that when you use a technical i pterm you should reside with the technical definition of the term. (SECRETARY HOARD: Well the - right after this question came up, th Planning Board started looking into the question of legislation about radio towers and they found the case law goes all over the ,map on these things and even in cases where the Ordinances have been i more strict than ours the courts have ruled other than what you are ;suggesting. i MR. SWARTOUT: Okay. I 'm not sure about the exact hierarchy of pro- jcedures , but as I have pointed out , at some point the rules - the City Code -required this to be brought before the Tompkins County 1Planning Board . . . i i? 76 - r; 1SECRETARY HOARD: That is only if it has to go to this Board. i ! That is only if it has to have a variance. MR. SWARTOUT: No , I believe it says any construction but I will 1± check. l ! SECRETARY HOARD: No. Once you get into the - that' s once you get ilinto the zoning question does it have to go to the . . . I believe I! �1I explained that to you in my office, so you are rehashing an old argument. ! MR. SWARTOUT: You are correct. That was not my intention. Ii '; CHAIRMAN AMAN: Any questions? Anyone else wishing to speak on ! ! behalf of the interpretation sought here? IMRS. INMAN: I 'm Joyce Inman at 106 Grandview Place. I just wanted ' to say a couple of things about the tower, size of it, the looks i lin the neighborhood. First I have a copy of a letter here from Ii i' Mr. Fish to Mr. Hoard - this was March 31st and it says "it does , not create an unsightly situation for the property as to the ad- i joining owners . No complaints were made during the construction ! of the tower." And then he says "the undersigned is going to con- , tact all the property owners within the two hundred foot radius of South Side Fuel property to obtain their input on whether or not jthey have any objections that we can satisfy and still maintain th I ; tower." This was never done. We didn' t know he had any intention until we found this in his file at the Building Department. We di 11have objections , we had brought these out before at a meeting with i ' Mr. Hoard, that we objected to it there, as I said, it is unsightl band he can continue, as you said, to add on, there is nothing that jsays that he cannot continue to add on to this . That would make Ilit even more unsightly if you have all these and they are not i ( little antennas, little bitty rabbit ears sticking out - they are ` large rabbit ears and it is very noticeable. Article 33a says ; height regulations - in no case shall such feature exceed a cross I j: sectional area twenty percent of the ground, floor area of the (4 �' building. Now this new tower is larger than that because you have i i, to take into consideration not only the tower itself but all the s1 ( guy wires and posts that you have to put it on so we feel that it i - 77 - I I Ibis larger than twenty percent - it covers the twenty percent that �I + the code says . The other one was use - I know this has been touched � on but we feel that Mr. Fish' s primary use of his property is in selling and distributing oil. I understand he also leases out to a couple of - well to Terminal Taxi and Radio Page and now to the prime broadcasting, WNOZ . Well this is loke a new business . I feel that he can keep adding on and he has gone into business as leasing a tower and he can just continue to lease as much space las he wants to until he gets up there so high that - you know - when the airplanes are going to hit it or something like that. I just feel that our interpretation of use - what he is doing with it , the size of the tower - it is so much different from the one that �Iwas there . The one that was there was just like a lot of people ilhave on their homes for two-way radios and it was not unsightly - it wasn' t that high up and the trees covered it , it wasn' t that big I laround. This is unsightly and I think that it will hurt the proper- , � ty values in that area. It is not fenced in in any way, small li children can go onto the property and if I had small children I i iwouldn' t want to live in the area, because you cannot watch them i every minute, they can scoot off and get into something and I don' t ;feel that he has provided enough safety for the tower - to keep people off the property or small children. I think most things have been covered tonight. i !CHAIRMAN AMAN: Is that all you have Mrs. Inman? MRS. INMAN: Yes. I !CHAIRMAN AMAN: Are there any questions? Anyone else wishing to jspeak on behalf of the proposed interpretation? I NIR. WILCOX: Is there anything in the file - a petition or anything. SECRETARY HOARD: No. 1�R. SWARTOUT: The citizens were advised by the Alderman, Elva �Oolman, that this was the proper way to pursue the matter, that a I�, etition was not required. I,1 IRS, CAMPBELL: My name is Lillian Campbell and I live two houses I1from South Side Fuel Company. The one thing I work all day, I 'm to one parent - the only entertainment my children have is the TV. I I is 78 - I' I , Now I 'm not on the cable , I can' t afford to pay the cable fee - my is ' son put a antenna up and so it is like seeing no picture or it rolls , and we haven' t had no trouble since the antenna went up - so that' ithe only thing that really hurts because that' s the only thing my ! children have as entertainment, besides going to church and if we I fare home we have TV and the kids want to look at it and it ' s an i interference. Now I 'm not on the cable, I have antennas on my - land my son put it up there. If you've got money and you can pay ! the cable fee, it ' s fine I 'm one , I don' t. I am sole support, I : have children home and that's the only entertainment they have and i; it really is a hazard. I . CHAIRMAN AMAN: Thank you. Anyone else wishing to speak on behalf Iof the interpretation? ! MRS. WINTERMUTE: I 'm Jackie Wintermute, 107 Grandview Place. I ihave here the official fire report which I 've gone over thoroughly jwith Lieutenant Vliet who made out the report and WNOX radio is � listed as an occupant . This and the structure type states that it is multiple use meaning there is more than one occupant. Now this j to me - I don't feel is the original intentions of his business I funder grandfather rights . Also on a map - here - it is circled ! where there is a designated radio room with the only entrance bein from the outside which would mean anyone twenty-four hours a day - 365 days out of the year could get into it to do maintenance, task5 , ! whatever - so to me this means it is another business . CHAIRMAN AMAN: Any questions from the Board? i MS. DE COMBRAY: I didn't understand that last part about the i building at the door, would you say that again? i MRS. WINTERMUTE: It ' s a designated radio room where there is only !i radio equipment in that building - in that room - there was nothing { else stored there. The entrance to is was on the outside only so that you could - anyone having. . . . (.changed tape here so didn' t i� pick up the rest of this sentence. i t MS. DE COMBRAY: I see. i CHAIRMAN AMAN: Thank you very much. Is there anyone else who would like to speak on behalf of the interpretation? I i 79 - ' MRS. DIEBLER: I am Vi Diebler and I live at 805 South Aurora i Street. Something was said about a petition. We didn' t get a I ( petition because we are here and another thing , we wouldn' t have I{ , had to be here had he sent out the letters and notified us that we i were going to be He didn' t send out any letters , I didn' t even know he was putting it up. CHAIRMAN AMAN: My understanding - you have to back up one step. What we are talking about here is interpretation of the Zoning Or- dinance - to determine whether or not a person has to apply for a variance to begin with. Our usual situation is , it is clear that i ; someone has to apply for a variance and then there are procedures i ' that we have to follow to do that. Here, at least on the face of �� the Ordinance, it would arguably appear that no variance was neces IIsary and therefore the variance procedures didn' t - weren' t requir d. iMRS. DIEBLER: But a building code was - before it was put up. ,CHAIRMAN AMAN: Yes . IMRS. DIEBLER: Not after it was put up. i (CHAIRMAN AMAN: I am just talking about the notice at this point . ,MRS. DIEBLER: But the letter said that he did send them out, whic ?he didn't. In one of the letters it did say that he had sent them ,out and we had no questions or anything - which this could have i fall been eliminated had he asked anybody. iMR. WILCOX: They are sent to property owners . iMRS. DIEBLER; No, I live right below there - we didn't get one. ( SECRETARY HOARD: I think you are talking about two different i I ;things. She is referring to Mr. Fishts letter to me in which he i �isaid that he would contact the neighbors. By the time I got the letter, he didn' t have to contact the neighbors to find out how i they felt about it because they were already making complaints to ;the Building Department. JiCHAIRMAN AMAN: Are there any questions from the Board? Thank you lvexy much. is there anyone else wishing to speak on behalf of the interpretation? !MRS. HOLMAN: Elva Holman, 141 Pearsall Place, alderman for the "second ward. I think your task is very clear here tonight , and th t Si 't ii �l - 80 - 'is to dcide whether - and this has city-wide implications - whether, ii.n fact, you are dealing with an expanded use of a non-conforming +,grandfather business . It was grandfathered for one use , the dis- I Itribution of fuel , there is now a tower which has tenants on it and i I think you must decide whether that constitutes a separate business , Viand whether, if it does , it falls under grandfathering clause. And Ii II think that has city-wide implications. (CHAIRMAN AMAN: Any other statements on behalf of the interpretatio ? i ;Anyone wishing to speak against the interpretation? 11 11MR. FISH: I am Harold A. Fish, Jr. , I am the owner and proprietor �of South Sade Fuel Company. I don' t want to be too long, I ' ll be ,short . On this tower, and we 've got to go back a few years ago, i ,and at this time a lot of my records have gotten water damaged, I ,lcould prove everything but with the fire and we are doing a remodel Hing situation up there - Mr. Hoard has all of the paper work that I ;had gotten correspondence with and this is how he judged it from �I (the different situations - I know there was one person that said that Terminal Tax, for an example - they have been there since 1946. If you go back a few years ago, that was a coal yard. It had a sixty ,i �Ifoot coal trestle and on top of that was the antenna. When my fath r , � r. Dennis bought the property from the Delaware , Lackawanna Railroad Mr. Dennis wanted to put an apartment house in, our building came i; I� 14own - we left one wooden 12 x 12 timber to take care of Terminal T iaxi. Then we ourselves when I say we , South. Side Fuel , we went Tinto communications at the time when the embargo hit the United States i i �I4nd energy was starting to go on a rapid skyrise , we wanted to sere i our customers faster, not using a lot of energy to backtrack our- 1 selves and, at that time, I housed a tower and we put Terminal Taxi pnto the tower, so that would have been two commercial situations o ��ommunacation service, �R. ANGELL: What date was that? kR. FISH: 1974 , I think. I dontt have records in front of me , I 'm I �orxy, so I am just trying to pick some things out of my head. I pirect page came and asked us if they could come on to the tower an they pay rent the same as Terminal Taxi and the radio station at ,f i 81 - i ;this time was not involved, when applied to update my license - l11which I had a five year license because I am in special industrial ;communications and every five years we have to renew our license. �i iAt that time , prior to my five years were up, I applied for a taller tower for better communications for the South Side Fuel Company an listening to the Motorola technicians , and that ' s what radios I have lis Motorola, they said if I could go up higher I could get into what iwe call a dead spot situation. For an example , Danby - at the county Eline - theoretically that is where I was dead. Anything going into i ITioga County for my deliveries , I had no contact back to my office. E iIf I was in Sandy Creek Trailer Park, up on the Mecklenberg Road, I Thad no communications back to my office. With an elevated tower I ,would be able to fill these little dead spots that were in the county which oup y which I deliver into and at the time when we erected the tower we were able to use it for approximately thirty days prior - and then lourfire, whice we are back down to a limited situation at this ,ttime - but we have noticed a big difference in all of our dead spot5 . ' (I ,They are not a whole 1000 like talking from downtown Ithaca to my i fuel company but we have got a lot better communications . I be- lieve there was one person who said that there was another company II that owned the tower. No they do not . I own it , I have proof of lchecks of all the people that did any part or phase of the tower. I feel that we' ve discussed it , we 've talked about it and I don' t ;Think it is such an eye-sore on South Aurora Street. That' s all I have to say. MR. GAINEY: I have a question. • You talk about this industrial I; ;license - every five years? IR. FISH: That is correct. MR. GAINEY: is that your license to operate the radio or the tower �R. FISH: License to operate my communications for South Side Fuel �ompany. ,�R. GAINEY: Okay, Is that defined as your radio channel or tower peration? R. FISH: No, that defines my frequency to the Federal Communica Itions Service. i 1 , j it - 82 - i MR. GAINEY: And do you have a separate license for the tower? i IMR. FISH: No, I do not. I have to tell what the elevation is abo e i. lIsea level , at ground level and the height of the tower. SECRETARY HOARD: If you had to take all of the things off your ( tower except your thing, would you take the tower down? i IMR. FISH: No, I would not. I feel that my communications has - !will be serving my customers better and I will be able to talk to ny equipment that is out in the field, better, so I would not take it down. MR. GAINEY: That cost $9, 000. - that what it cost you, $9,000. ? i iMR. FISH: I think we are talking maybe $200 . more than that when (got my final bill from Gaggle Construction. DR. GREENBERG: What do you say to Mrs . Campbell and her lack of Ireception? +MR. FISH: This is the first time I have heard anything on the TV lend of it. I did not know there was a problem with any frequencies that are there which would be Direct Page and they are up on the 400 megacycles. I am at the 152 , Terminal Taxi is up on the 153, I 0 believe, and I am not positive on the Crown Broadcasting - it will i ibe coming in on the FM megacycles at 99 and going out at 107 fre- quency but I did not know there was any lapse onto the television. I was not informed about it. I IDR. GREENBERG: It may be just the height of th-e tower on the stru tune itself? In any case I think you ought to speak to her, she is I a neighbor of yours . i CHAIRMAN AMAN: I take it you have no plans to add to the height i of the tower? 'MR. FISH: No , I am not raising it any more . I think there has been � enough_ ralsing of eyebrows at this point, I believe Mr. Hoard' s Igot pictures of the old and new and I do have them - when I start hooking for them - in my own files myself and if you are looking ,at the old tower, two communications had to use plastic tubing about l done and one-half inches to hold their whip antennas - these was a safety device and everything else which_, if you looked at it , looked , At this like an "H" on the tower and to me that was an eyesore. i I� !f f 83 - �1 �, point, with this new tower, there is - it is high, I admit that s but there is not an eyesore to it. It is more structurally - safety precaution - I believe there was one person said about children - I Iwe have put up a fence, you are talking about a four foot pylon i ! which the tower is based on and then the tower is erected from that and that is twelve foot of fencing which is checken fence and it i I, about one inch by two inches . There is no way a child' s foot , it theoretically, could get into it. They would have to use their +I fingers and go up approximately fourteen to sixteen feet for the safety device. There is one place of a guy wire - at this time I r have not put a safety situation on since - of our fire and the Ii construction and our construction is almost done and I hope to have the safety in on one set of guy wires that comes down to the ground - i I will have that within the next couple of weeks but it is not something that I have forgotten - it is something that is there , I I am doing the best I can do with what I 've had to go through. CHAIRMAN AMAN: Are there any questions? MR. ANGELL: Is it grounded? MR. FISH: Yes it is. It is grounded on all three guy wires - it is grounded at the base. It has used a lightning rod which is eight feet long, it has gone into the ground or into the rock. South Side i t Fuel approximately four to five foot is on shale rock, so once you I� groove a find you have to that rod into it and that is I; g what we have done. The ground wire is a common lightning rod cable which- is copper. What the size of it is I am not sure, li CHAIRMAN AMAN: Are there any further questions? Thank_ you very ,I much_, MR. FISH: Thank you. CHAIRMAN AMAN: Anyone else wishing to speak against the proposed i interpretation? i MR. LYNCH: Mr, Chairman I wish- to ask a question of Mr. Fish, if i I may. I CHAIRMAN AMAN: Why don' t you come forward and identify yourself. I MR. LYNCH: My name is Robert Lynch, I am Operations Manager of j! radio station WTKO. I reside at 175 Gray Road, Ithaca. Mr. Chai - i 84 - i i Iman I think it is germaine to this case if we ask Mr. Fish or you �imay care to ask Mr. Fish, relevant to this tower, what the monthly I Trental fees he receives for the various services which are rented lout on this tower. I think it is important to determine if the ! primary purpose of this tower is for Mr. Fish' s own business or fo revenue producing - increased revenue from other unrelated uses to his Fuel Company and that is the only question I have . ! CHAIRMAN AMAN: I 'm not entirely sure that that ' s relevant. If Mr. Fish wants to respond, you are welcome to. MR. FISH: I make no comment and if we have to go to an attorney 11 will be glad to do it that way. CHAIRMAN AMAN: Hearing nothing further, the Board will adjourn to ' executive session. ! SECRETARY HOARD: Has anyone shown up for appeal 2-2-80, appeal of i IIJVRC enterprises? (no one) or 5-2-80, appeal of William T. Prit- Ich.ard? (no one) or appeal 6-4-80 , appeal of Stuart , Peterson and Creighton? Hearing none we will go into executive session. +f I i I I �I l I i i I! 1, �I i I I I I 85 - i i' BOARD OF ZONING APPEALS COMMON COUNCIL CHAMBERS I{ CITY OF ITHACA, NEW YORK JUNE 2 , 1980 I j EXECUTIVE SESSION II APPEAL NO. 1304 The Board considered the request for an interpretation of Sections 30. 3 , 30. 33 and 30.49 concerning the erection of a radio tower at i 1815 South Aurora Street (.South Side Fuel Company) . A building J! permit has been issued for the tower; the appellants are requestin the interpretation as aggrieved parties under Section 30. 58 of the , Zoning Ordinance. The decision of the Board was as follows : i The interpretation of the Zoning Ordinance does not disallow the I jconstruction of the tower at issue in this case . While the Board feels that the Zoning Ordinance should be amended so as to dis- fallow future construction of this sort, it is not within our power � to amend the Zoning Ordinance. Thus having found that the structure { was exempt from the Zoning Ordinance we determine that the building I1ipermit was properly granted in this case . ' A second question was presented, namely whether a new business was created by leasing space on the newly constructed tower thereby re Iquiring a variance, It is our interpretation that a new business has not been created. Within the terms of the Ithaca Zoning Ordi- nance an additional station will not create additional traffic in Ith.e neighborhood nor will it change the character of the nei,ghbor- ihood in any way, I ! The vote concerning the first issue was : 5 Yes ; 0 No ; 1 Abstention. iThe vote concerning the second issue was : 4 Yes ; 1 No ; 1 Abstention. I i I i i i i E I i I it I 86 - rI , BARBARA RUANE, DO CERTIFY that I took the minutes of the Board I of Zoning Appeals , City of Ithaca, in the matters of Appeals numbered 1302 , 6-1-80, 6-2-80 and 1304 on June 2 , 1980 at City Hall, City of Ithaca, New York; that I have transcribed same, and I the foregoing is a true copy of the transcript of the minutes of the meeting and the Executive Session of the Board of Zoning Appeals City of Ithaca and the whole thereof to the best of my ability. I I Barbara C. Ruane Recording Secretary s i I f Sworn to before me this I I / P day of 1980 i I I ' j Notary Public JEAN I HANKINSON NOTARY PUBLIC, STATE OF NEW YORK No. 53-1660800 I QUALIFIED IN TOMPKINS COON , NY COMMISSION EXPIRES MARCH 30,19 , I i i I , i , I� ,