HomeMy WebLinkAboutMN-BZA-1980-10-06 I
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TABLE OF CONTENTS
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MINUTES OF THE MEETING OF THE BOARD OF ZONING APPEALS, ITHACA,
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i' NEW YORK - OCTOBER 6 , 1980
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i� APPEAL NO. 1322 Cornell University 1
316 Fall Creek Drive
APPEAL NO. 1322 Executive Session 57
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APPEAL NO. 1323 Cornell University 59
319 Wait Avenue
APPEAL NO. 1323 Executive Session 74
Ij APPEAL NO. 10-2-80 Bern Furniture Stores, Inc . 76
120 W. State Street
APPEAL NO. 10-2-80 Executive Session 80
APPEAL NO. 10-3-80 J. D. Gallagher Co. 81
} 415 North Tioga Street 1
APPEAL NO. 10-3-80 Executive Session 84
{ APPEAL NO. 10-5-80 M. E. Patterson 85
221 N. Aurora Street
I� APPEAL NO. 10-5-80 Executive Session 87
i APPEAL NO. 10-6-80 Dr . Robert Baker 89
I 408 N. Tioga Street
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(No one showed to present this case)
i' APPEAL NO. 1321 Orson Ledger 89
L 318-322 W. State Street
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I APPEAL NO. 1321 Executive Session 101
k CERTIFICATION OF RECORDING SECRETARY 102
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j BOARD OF ZONING APPEALS
COMMON COUNCIL CHAMBERS
CITY OF ITHACA, NEW YORK
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OCTOBER 6 , 1980
CHAIRMAN AMAN: I 'd like to call the October meeting of the Ithaca
( Board of Zoning Appeals to order. The Board operates under the pro-
visions of the Ithaca City Charter, the Ithaca Zoning Ordinance an
Ithaca Sign Ordinance. I 'd like to take a minute or so to explain
our procedures here to those of you who have not been to our Board
before. Present this evening are four members of the Zoning Board,
four out of six: Ms . Natalie DeCombray
Mr. Morris Angell
Mr. Peter Walsh
Mr. Alfred Aman, Chairman
Mr. Thomas Hoard, Secretary to the
Board and Building Commissioner
Mrs . Barbara Ruane , Recording Secy
ABSENT: Mr. Joseph Gainey, Jr.
Mr. William Wilcox
For a variance to be granted by this Board it is necessary that you
receive four affirmative votes . Since two Board members are not
here tonight that means that you would have to get all four members
who are present voting in the affirmative for your requested vari-
ance. Since that is the case, our custom is to allow anyone who
wishes to postpone the case for this month, do so - you have that
(right. Otherwise if you come forward you realize that you have to
�1have a unanimous decision. We call the cases in order and we ask
first that those wishing that a variance be granted, speak first -
make their case as succinctly as possible and respond to questions
1from members of the Board. We will then ask for anyone in the
audience who wishes to speak in support of the proposed variance
request and then we will ask for anyone who wishes to speak against
the proposed variance request. We do not adhere to strict rules of
evidence but we do consider this a quasi-judicial proceeding and we
+base our decisions on the record. Therefore we do keep a record of
what goes on at these proceedings and we ask that you come forward
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and make your remarks at this podium. We have a tape recorder
which will pick up everything that you say so that we will have a
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jrecord of the proceedings. At times , it depends on the case , at I
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11times there is a tendency to want to respond or to make a point
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hfrom the audience - even though it ' s a very brief point - again, to
;;ensure that it gets on the record, I recommend and will encourage
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Ijjyou to come forward and make your point from the podium. After we
;have heard all of the cases we adjourn - we go into executive ses-
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sion and deliberate and possibly decide the cases at that time. We
then go back into public session and announce our results . You
are welcome to stay until then and wait for the announcement or
ou will be notified of our results either through mail or by call
Ming Mr. Hoard' s office. There is one other point I 'd like to bring
Iup regarding this evening ' s cases - this is a lay Board in the sens
that it is made up of members of the community - from various parts
bf the community - some of us are lawyers - many of us are not,
I( nd it is a quasi-judicial proceeding - that is to say, it isn' t a
IOtrict law-court kind of proceeding. Nevertheless there are some
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ules of evidence and - some rules that are judicial in their natur
nd I would like to announce that as to two of the cases tonight
involving Cornell University that I personally live in the neighbor
ood that is affected by - or allegedly affected by the proposed
� ariance and I work for Cornell so, in a sense, depending on how
You look at it - my conflicts either cancel themselves out or what
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l6ver. I assure you I have thought long and hard about this and my
�wn feeling is that I can be impartial in this case and apply the law
1 o the facts that are presented here and I feel that I can do that .
owever, given the unusual situation that I find myself in, being
'n the neighborhood and working for the University, I would recuse
yself if someone, a party to the proceeding, felt that the fairnes
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the Board or the appearance of fairness of the Board would be
�everely undermined by my sitting. I don't need a response to that
6w but when those cases come up, if someone wishes to make a motio
that I recuse myself, I would on the other hand, as I say, other-
ise I would plan to sit and I thought about the problem and I don'
eel it would compromise my impartiality. Having said that - Mr .
ecretary please call the first case .
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BOARD OF ZONING APPEALS
COMMON COUNCIL CHAMBERS
f� CITY OF ITHACA, NEW YORK
OCTOBER 6, 1980
' SECRETARY HOARD:
Appeal No . 1322 A eal of Cornell Universityfol
�i pp an interpretation or a use variance uder
Section 30 . 25 , Columns 2 and 3 to permit
conversion of the residence at 316 Fall
Creek Drive for offices . The property is
located in an R2a (residential) use zone
in which offices are not a permitted use .
The appellant is claiming that interpreta
tion of state law exempts the appellant a
an educational institution from local zonng
law; if the Board of Zoning Appeals does of
concur with this interpretation, the appe -
lant will ask for a use variance .
CHAIRMAN AMAN: I was considering whetherit would be easier to tak
up both cases . . .
MS. EGAN: We are prepared to do that.
CHAIRMAN AMAN: At the same time. Does anyone have any objections
Ito that?
VOICE FROM THE AUDIENCE I prefer that they be taken up separately.
( CHAIRMAN AMAN: Alright. Fine . We ' ll do it that way. I have no
strong feeling about it, I was just trying to organize it a little
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bit. Okay. Does anyone have any objection to my sitting on this
case - the point I raised earlier? (no one objected)
MS. EGAN: Mr. Chairman I wanted this to be submitted on the recor .
Mr. Chairman and members of the Board of Zoning Appeals , my name i
Shirley Egan, I am Associate Counsel for Cornell University. Cornell
University appeals from the denial of a Certificate of Occupancy f r
the use of 316 Fall Creek for its office of University Publications .
Specifically the appellant is requesting an interpretation that the
,proposed use is an educational use and is therefore exempt . It is
imy understanding that the principle of the educational exemption may
not be contested in this instance by the Building Commissioner. M
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information is that the principal of the educational exemption has
been honored for many years by the city - I 've spoken with some
former city attorneys about their experience in cases such as this
that have risen and apparently there has not been an argument that
has come up over it .
(CHAIRMAN AMAN: Let me make sure I understand your position. Are
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l'you saying that essentially the Board doesn' t have jurisdiction to
decide whether or not something is an educational use or not an ed -
licational use. . .
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{!MS. EGAN: To the contrary. .
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CHAIRMAN AMAN: Or are you saying that we do have jurisdiction to
jdecide whether its an educational use and what you propose here is
clearly an educational use?
IMS. EGAN: I am proposing the latter that you do have the jurisdi -
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tion inasmuch as under Section 81 of the General City Law you have
the jurisdiction to hear any appeal from a decision of your city
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official charged with enforcement of the Code. And if this is the
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'basis for his decision, we were not exempt, then I would maintain
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that you do have the jurisdiction to hear it .
(CHAIRMAN AMAN: So then what you are addressing now is the argument
that the standard educational use applies to these properties and
they do fall within that standard?
MS. EGAN: Yes that is correct. That is the primary basis of our
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appeal. However, you will notice that we have, in the alternative ,
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requested the variance. This is because Mr. Hoard said that we
should apply for a variance . However the University, I think at th s
oint, has indicated by the letter that I have handed you - would
like to go on record with its position that a variance is not the
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appropriate remedy R it ' s inconsistent with the notion of an exemp-
tion and for that reason we would want it noted that we are not
4oing this by choice nor with the idea of setting a precedent that
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I the variance route is the way of handling cases such as this in the
future.
IOICE IN THE AUDIENCE: We cannot hear.
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CHAIRMAN AMAN: Is that microphone on?
�S. EGAN: I thought it was - it sounded like it was . The "on"
Dutton is on. Can you hear me?
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{, UD IENCE: No ,
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S. EGAN: I will shout in that case.
HAIRMAN AMAN: If you would speak up. I guess what is confusing m -
�t may be other members of the Board, too - are you saying that yo
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fare not here asking for a variance - you are here asking for an
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lexemption and that there is something different and that different
�Istandards apply because you are asking for an exemption rather tha
a variance?
MS, EGAN; I wouldn't have phrased it that way but in essence that
(is correct, We are here asking for a variance, not necessarily by
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�cfLoi,ce but hecause that was suggested to us by the Building Commis-
sioner as our route. However we do feel that asking for an interpr -
ation of the scope of the educational exemption is by far the more
ppropriate remedy,
�R. WALSH: Isn' t that really in the nature of a request for a de-
laratory judgment? Shouldn't it be brought to the courts?
�S. EGAN: No because we have specific - two cases in front of you.
�he other thing if you will check your case law is that our exclusive
remedy in the first instance from any adverse decision of the Building
ommissioner is through your Board. We could not go to court to
►andamus the Building Commissioner.
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R. WALSH: And will the decision of this Board on whether it has
Jurisdiction in this matter be binding on the courts?
S. EGAN: I don' t know of too many things like that that are bindi g
n a court, do you Pete?
R. WALSH: No I don't. Which leads me to wonder whether we have
he jurisdiction in the first place .
S. EGAN: I think if you check your Section 81 of the General City
�aw it provides that the Board shall hear and decide appeals from
�nd review any order requirement, decision or determination made by
n administrative official charged with the enforcement of the - th y
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ame some things which would obviously include the zoning ordinance
efore you, so I think - if I 'm not mistaken as to what you are getting
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t and Mr. Hoard was kind enough to let me in on what some of your
thinking might be today, that under the terms of the city code itself
hat you may not have jurisdiction because it says , shall decide
interpretations of the code, I 'm well aware of that but I think if
ou look at the line just above that in your code that would be look-
ng at Section 30. 58-B of your code relating to the Board of Appeals -
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' it provides that the Board of Appeals shall have all powers and
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( duties prescribed by law and by this chapter of the code. So I
Ithink very clearly you are within Section 81 of the General City
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IlLaw in that instance which does say, regardless of whether it
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, involves an interpretation of this law or not that you are to hear
1appeals from decisions by the officer charged with doing the job
las Mr. Hoard is .
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MR. WALSH: Assuming from this that we have the jurisdiction to
hear the question of whether we have jurisdiction, do cases really
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hold that the University is exempt from zoning or merely that a
permit may not be unreasonably withheld? Your memo says virtually
exempt. The New York Jur. cite says , I recall , use of land for
leducational purposes enjoyed some immunity and my reading of the
fifew cases I 've read seems to indicate that zoning laws dealing with
�leducational uses have not been stricken unless they intend to
exclude the educational use entirely. I think in particular, in
�iUniversity cases and that was not found to be an exclusion but
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merely a regulation and some contractual basis for that decision.
MS. EGAN: And I think it does rest solely on the contractual
basis , in that case it is an anomalous case. I think if you look
at the vast majority of them they don' t rest on whether or not
there was or was not a complete exclusion of educational institute n
but look to the actual purpose . Was the stadium, was the conferen e
, center, was whatever it was , an educational use or what they call
fan accessory use such as it came within that blanket.
CHAIRMAN AMAN: Where does that come from? Here is what I am stru -
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ogling with - why should a different standard be applied to the
University and anyone else that would be applying for a variance
lin that neighborhood? That basic question - why do we use a dif-
jferent standard, if it is the standard variance approach, then the
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standard is economic hardship in this case because it is a use var -
` ance. Now will you explain to us why it is that you feel that the
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University doesn't have to go that route under the law?
IMS. EGAN: Okay. I don't think it is a matter of the use variance
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I! Let ' s look at it for a moment as a matter of the denial or granting
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' of a Certificate of Occupancy rather than a use. As I said, we are
;applying for a use variance essentially under protest. In fact , I
;would almost be tempted to withdraw that but I am not out of defer-
Fence to the Building Commissioner' s decision that that should be
what we should apply for but to answer your question - going back
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'to the standard for the granting or the denial of a Certificate of
I10ccupancy, if I could rephrase it to that extent for you because
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II think when it comes right down to a variance there is only one
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Iset of standards , the standards that anyone has for a variance
!which is why all the more so - this is inappropriate . On the
question of the Certificate of Occupancy my understanding of the
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case law - and this applies not just to educational institutions
but to a variety of other uses that are considered to serve the
public interest, among them: utilities , religious uses , schools ,
;other governmental uses, uses by the state of New York or something
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like that, have that exemption because it is held that the "good
that they serve" is in the public interest and therefore should be
!exempt.
I,MR. WALSH: You are not claiming any special exemption by virtue
hof the fact that the University has the character of a state insti-
tution here?
'MS. EGAN: Not at all . I don't think we need to.
MR. WALSH: So your argument would say that any institution of public
education would have the same sort of standards?
IMS. EGAN: Private, parochial , public - yes .
MR. WALSH: And be subject only to public health, safety . . . . ?
�MS. EGAN: Yes , just as a footnote to your question . . .
AUDIENCE: Could we ask Mr. Walsh to speak into his microphone , we
can' t hear back here.
CHAIRMAN AMAN: If everyone would speak up - people in the back can 't
hear.
iIMS. EGAN: Just as a footnote to what you said, certainly a state use
'Jis absolutely exempt - they wouldn' t even have applied for a building
I! r a Certificate of Occupancy. The wouldn' t even need to o
�Ipermit oy
('that. So far as I know at this point we are not exempt from the
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Iibuilding code or meeting code in terms of the actual specification
lof a building for the use intended. But as far as the zoning goes
lit is the University' s position that it is exempt as an educational
institution and the particular uses falling within that educational
scope.
CHAIRMAN AMAN: Well if we take it from there - for the sake of th
largument now - then, how do you define an educational use? What is
that test? We are all familiar with the economic hardship test an
that we 've applied in countless cases and we know the criteria by
which we can judge applications by - but what criteria do we have if,
lin fact, this educational use test applies?
IMS. EGAN: I came more prepared to speak on the subject of an acce -
Isory educational use. I think in the case of one of the appeals
which a member of the audience has requestedbe separate, that that is
very clearly educational use. It will house classrooms , seminars ,
( library, space for professors , visiting fellows , that sort of thing .
IIDo you want a definition of that sort of educational use?
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CHAIRMAN AMAN: Well I don't want to disrupt your . . .
MS. EGAN: Want me to tell you about classrooms and why libraries
are educational?
iCHAIRMAN AMAN: No, I want it confined to the case that we have
lbecause we are capable of separating them. So . . .
MS. EGAN: Okay, on the case that we have then I believe the point
has been raised in some of the correspondence that I have seen be-
tween area residents and the University that, if this should for some
reason not be an educational use, that it is an administrative office ,
�Iit houses the University publications office which is where the
editorial functions go on of preparing course catalogues , course
descriptions , general information about the different colleges and
that sort of thing go on and I think that falls very clearly under-
neath- the
nderneaththe definition of an accessory use which I did include a case
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Ion that it actually involved a hospital which nurses' quarters weie
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held to be accessory to the hospital use even though ordinarily
residences would not have been permitted in that particular zone and
lin that case theaccessory use is defined as being something which )
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! the particular institution, in that case the hospital, would be
! normally expected to provide and I certainly think that we all kno
Ithat a course catalogue describing the courses being offered by th
Il University are something that the University would ordinarily provide
land be expected to perform as one of its functions . In fact a gre t
many of the publications that are produced by this office are re-
quired of it by law - that it has to provide this information for
the public or perspective applicants, for students , things of that
( nature . So I think that that very clearly falls underneath that
accessory use test, underneath the blanket of the educational exem-
ption.
PAIR. ANGELL: Do you have any contingency uses for this building
in case this doesn' t go through?
MS. EGAN: I suppose if it doesn't go through, and I 'm answering
hypothetically because I do think we are entitled to this exemption,
(we would probably try to find a tenant who could use it as it has
been used in the past, although that was becoming somewhat difficult
because the place is very large and has a large number of bedrooms
and, as you well know, people don' t have as many children any more
to fill up all those bedrooms .
MR. ANGELL: Have letters been sent to any of the residents in the
area as to what might happen if it isn't used for this purpose?
MS. EGAN: To the best of my knowledge, no.
iCHAIRMAN AMAN: It is presently being used - how is it being used
now?
MS. EGAN: It is presently vacant.
CHAIRMAN AMAN: And how long has it been vacant?
MS. EGAN: I can consult my sources here, if you like . I do have
with me someone who is assistant to the Provost whose whole area o
res onsbility has been finding spaces for offices that need space .
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I also have the director of the University Publications here , per-
haps you would like to have them come up and sit here, we could get
questions out of them a little more easily.
CHAIRMAN AMAN: Well, I would like to know how long it has been
vacant?
IMS. SISKIN: About a year.
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! MS. EGAN: Okay, why don' t you come up here so you can be on the
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' record?
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�ICHAIRMAN AMAN: Why has it been vacant , has it been vacant for lac
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�iof tenants or for other reasons?
MS. SISKIN: It has been vacant because it was occupied by a few
people from the Admissions Office, which couldn' t house them be-
Icause they didn't have enough space. And then, my understanding was
that the Building Commissioner wanted them out because they were i
violation of something, I wasn' t clear - this is when I came on
board and I found them other space.
( AUDIENCE: Can you speak into the mike , we can' t hear you.
CHAIRMAN AMAN. Could you also identify yourself too , for the
record? I think you have to really get very close to it .
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IMS. SISKIN: Well, I can stand up and yell - is this alright? I a
Sidney Siskin, Assistant to the Provost at Cornell . And it has been
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vacant since the Admissions people left because it was uncertain
what could be done with the building and then . . .
CHAIRMAN AMAN: Now when did they leave, I just want the . . .
` MS. SISKIN: About a year ago,
! CHAIRMAN AMAN: And prior to that time, was it used as a family
residence?
MS. SISKIN: I understand that it was rented to families - it was
originally acquired as a residence for vice president Lyle Carter.
CHAIRMAN AMAN: Have there been any attempts to rent it to familie ?
MS. SISKIN: Since when?
CHAIRMAN AMAN: Since the Admissions Office . . .
MS. SISKIN: Not that I know of..
MS. EGAN: Okay, I would emphasize, Mr, Chairman, that because of the
nature of Ms . Siskin' s job, she would not have been in the position
of renting it to a family. Her job has to do with. the academic
side of space, not personnel.
CHAIRMAN AMAN: Let me put it this way, you are not saying to us that
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you cannot make any other use of that property other than the one
which- is the one proposed - what you are saying is - this would be
the use that would be in the University' s interest and your positi n
is , under the law, you are entitled to use it that way.
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Ii MS. SISKIN: I would say, all things considered, it ' s a most urgen
11interest. One could turn it into, I suppose, a dormitory if one
' invested huge amounts of money into making it . . .
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(' CHAIRMAN AMAN: All I want to establish for my own sake is . . .
MS. SISKIN: Theoretically. . .
CHAIRMAN AMAN: Okay, but this is not a situation where you have
' attempted to rent it to faculty families and were unable to and
therefore turned to a different use . It is a situation that this
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is a use that you want to use and you are simply pursuing your -
� what you feel your rights are under the law. The dormitory questi n,
� this is what troubles me - this educational use exemption, if that
is what we are under. What criteria does one use - is itY our
position that you could use that particular home for anything that
qualifies under that banner of educational?
MS. EGAN: We could, that doesn' t mean that we would because, al-
though those here in the audience may chose to disbelieve it, I
think the University is willing to be sensitive to uses that are
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Inot disruptive to the neighborhood we are not going to put into
there something that clearly is going to be just so out of place
that it causes very bad feelings between the University and the
nearby residents ,
IMS. DE COMBRAY: Where is the Office of University Publications
located now?
� MS. SISKIN: It ' s at Sheldon Court in Collegetown.
� MS. DE COMBRAY: And what is wrong with that location?
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IMS. SISKIN: Sheldon Court is going to be vacated - it is going to
Ibe used for dormitories .
( MS. EGAN: I would say we do have a pressing problem in this way.
Sheldon Court is scheduled for its complete rehab beginning Novem-
ber first and if any of you have driven by that building you know
1how sorely it is in need for rehabilitation right now.
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CHAIRMAN AMAN: As far as the publications matter - or business -
is concerned, do you sell any of those catalogues? Are any of the
sold or are they all distributed . . .
MS. EGAN: I would like to have Kelvin Arden come. He is the
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iDirector of University Publications and he can take a seat and tur
!ion a microphone and answer all your questions on that score . Why
!' don't you identify yourself so your voice will come through with a
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, name attached to it?
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MR. ARDEN: Mr. Chairman, my name is Kelvin Arden, I 'm the Direeto
� of the Office of the University Publications . To the question on
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whether any of the publications are sold - no they are not. This
is definitely not a commercial operation, no charges are made for
Jany of the services and what we do in the way of consulting and
editorial work is for the entire University. We publish the academic
catalogue for the state units as well as the endowed units and for
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jthe medical college as well .
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MS. EGAN: Mr. Chairman, I believe you have there on Mr. Hoard' s
desk a stack of the sorts of publications - T didn' t want to swam
you with too many but I selected a couple from the stack I was giv n.
Perhaps they would like to have them passed around so they can see
( just what the nature of them is . They are clearly not magazines o
something on that order but the sort of publication that any Unive -
sity would absolutely have to produce in order to be in business .
CHAIRMAN AMAN: Now what goes on or what do you propose go on in
( this particular building? Are the layouts done there or is the
actual printing and compiling done
` MR. ARDEN: No actual production goes on. This is a matter of con-
sulting with the people that would have control over the content
and some places this would be assistant dean or the department head
determining the formats , editing the copy and position the design
for these various publications . There is no printing, no material
come in or out of the office except the paper.
, CHAIRMAN AMAN: What kind of deliveries would you anticipate on a
( regular basis?
MR. ARDEN: Regular basis? Just the mail.
MR. ANGELL: How many people would work in this office?
IMR. ARDEN: We have ten people on the staff at present.
IMS. EGAN: T think if you would look, appended to your appeal is a
list of staff with their jobs and qualifications .
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I;MR. ANGELL: How many parking places on this property?
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MS. EGAN: Presently on the site next door to the garage there are
(! locations for two vehicles . Most of the employees will be require
Ito share the University Press ' s lot which is off of Roberts Place
Ibut geographically is next door. There is access and egress from
Ithe back side of the Fall Creek property to Roberts Place. This i
la street in that it is not two house lots deep - it is only one
11house lot deep with Roberts Place directly on the back side of it.
There is a set of stairs coming from the back of 316 Fall Creek
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up to Roberts Place and then directly next door on Roberts Place i
the University Press parking lot. The University Press parking to
Chas more than enough additional spaces in it to accommodate the
staff of University Publications . The staff itself has been polled
'as to those who need a car - there are some who bicycle or walk or
Icar pool or something of that nature, so we are quite sure about
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!our actual figures . There would be space, should there be a visitor
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}to the University Publications , to park in the driveway and, in
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!addition, directly across the street there are six, one-hour limit
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parking spaces which would be city owned and presumably the limits
;on that enforced by the city as well as any other parking up and
down the street.
IMR. ANGELL: I was up there today and the University Press parking
lot was virtually filled, the parking lot directly across the road
was filled - there were six or seven cars parked in violation on the
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goad.
IMS. EGAN: I would suggest, on the latter point that cars parked in
1violation would be an enforcement problem for the city rather than
Ifor the University. They have every right to ticket cars that are
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parked in violation. On the issue of University Press , I can't tel
lyou that there are empty spaces right now, but what I can tell you
is that of those who will be permitted to park in the University
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(press and I can' t tell you who is parking there with authority or
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root, or with a permit or not, to park in that lot that of those w o
will be authorized to have permits to park in the University Press
lot, after subtracting their numbers there are additional spaces
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which will accommodate the University Publications . It may be a
matter that Cornell University will have to be stricter on enfor-
Icing with its own people - parking with permits and tagging those
�ethat are not parking with permits . But certainly that will be
something that we will be happy to do and will indeed need to do s
Ilfor the sake of our employees.
I
NS . DE COMBRAY: What is the undue hardship that is being claimed
lin this case?
i
MS. EGAN: As I reiterated, we are not applying for a variance by
choice. It is tacked on because that is what is being asked of us .
i
If you look at the strict requirements for showing undue hardship -
that cannot be sustained and we have no desire to. It was almost
ja toss-up as to whether or not we would not even apply for a
Ivariance at all, simply because we do feel that it is so inappro-
priate to what the real question is before us .
MS. DE COMBRAY: So, in fact by coming for a use variance, you can'
demonstrate hardship or that you are not going to even try?
IMS. EGAN: We don't think we need to . We are doing so out of
I.
(jdeference to Mr. Hoard, who said apply for a variance. But you
i
will notice on our application it says that we want an interpreta-
tion that this is an exempt educational use and only in the alter-
native were we saying a variance, but we do go on record as saying
`that we do not think that the variance route is the way in which su h
i
(things should be treated by the city.
S, DE COMBRAY The reason I ask this is because I am confused as
to what our discussion is about - with our questions and our answer5 .
�I ' d like to ask in general - in other words , I 'm listening to a dis
I�
jcussion for a use variance but the appellant doesn' t believe that
he use variance is necessary and we are discussing various aspects
It doesn't make sense to me.
CHAIRMAN AMAN: I think it ' s - we are unclear as to what standard
applies and I think it is best if we utilize this hearing to develop
record that would be adequate for either standard so that if the
Board determines that the hardship standard applies , the petitioner
rill have the opportunity to address that question and if it doesn'
I!
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I,
11apply certainly you have had the opportunity in our addressing the
�1educational use standard so I (unintelligible) in support to
(draw out the fact (unintelligible) . . .
i'
iMS. EGAN: Maybe if I could just elaborate for you Ms . DeCombray.
From a legal point of view we do have to go the full route on the
administrative remedies in front of us and I would hate to come be-
fore you on the issue of the interpretation of the educational
liexemption alone and have you (problem with tape recorder here
Iso Ms . Egan started again) I wouldn't want to have gone through
,the whole procedure of asking for the interpretation, which is what
ewe think is appropriate under the circumstances have, for instance -
i
Inot to suggest what you should do but have, for instance, the
Board - well we don't have any jurisdiction over that - you should
have applied for a variance and then we start the whole process
lover again. That is why we are applying for something which, on
jthe face of it, is inconsistent but as the lawyers on your Board
can tell you, lawyers do that all the time. It' s like the two
I
inconsistent remedies on the theory of judicial economy - so that
we are not spending time doing something twice over again.
IMS, DE COMBRAY: But in fact it will not be resolved if we deny
them?
�i
IMS. EGAN: Well you can resolve them both, that would be just fine
with me
I
ICHAIRMAN AMAN: Well we have resolved one , as to economic hardship,
lyour position is that you can't meet that standard, you are not
Iltrying to meet that standard.?
MS. EGAN: We don' t think we need to meet that standard.
SMS. DE COMBRAY: If we were to ask if you believe that you would
not be changing the character of the district, also this is unique
(unintelligible) .
'MS. EGAN: I think it goes without saying that by changing the use
Ifrom a residential one to a non-residential one that to that extent
IIthe character is changed. However because of the way which the use
i
is proposed as far as no changes to the exterior of the building,
(maintaining its appearance as a residence, maintaining an activity
i
i
i
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14 -
'iin it which does not stand out from a residential use in terms of
"noise or signs or parking of traffic or things of that nature, we
;think that it changes the character as little as possible under the
I
I
,circumstances.
;CHAIRMAN AMAN: Now again, this is my problem, assuming we have
;jurisdiction for this interpretation that you are requesting, what
pare the elements or what are the criteria which we are to apply to
�jyour requests? One of them, I take it , is the character of the
!i
,neighborhood - the character of the neighborhood should not be
unreasonably changed.
IMS. EGAN: I don' t see that that is a criteria for judging whether
for not something is an educational use or not.
;CHAIRMAN AMAN: Well , are there any limits on what is or what is
Inot ane.dbcational use as you read the law? We need that help, this
.!is not the kind of case that has the kind of standards that this
; Board applys . I mean, are there any limits on what is or what is
I
!not anecDcational use r are there any constraints which by law the
I
University must take into account when they request a change in the
basic zoning of an area?
MS. EGAN; Let me perhaps try to answer your question this way.
i
,Let ' s say that the people that I am working for in this instance,
i
iin the Provost ' s office, came to me and said: We propose to put in
I
Ithe cosmetics counter of the Cornell Campus store. I would say,
11 don't thi:nk. that is an educational use, go put it some place else.
JU they said, we grant to put the enterprise of selling textbooks i
that building, I would say that i,s an educational use,
jCHAI'RMAN AMAN; What about housing students?
i
;MS, EGAN; I would say that 's an educational use. In fact, dormi-
tories have been found to be exempt, as have playing fields , schoo
!bus garage, things of that nature - there is even one instance I can
i
irecall, I believe it may have been included with the cases in your
,packet,. .n which- there had been a school for wayward youth, shall
we say - who needed rehabilitation and perhaps a, trade and there i
I'
la proposal to build a light industrial plant, Again, it was in a
presidential zone and that was held to be exempt because it was par
I
I;
i
1of the educational function in that case .
MR. ANGELL: How many properties does the University own in that
!!area?
I I
�!MS. EGAN: I honestly have not counted them.
i
IMR. WALSH: Assuming this use to be an educational one (unintell)
iI 'm
still troubled by the question of the exemption and whether the
University will (unintell) if the proposal is an educational use
land escape the (unintell) of the zoning. I 'm looking particularly
jat the New York Institute of Technology v. LeBoutillier 33 NY 2nd,
i
!' Court of Appeals decision - I think what Judge Casson, if I recall -
it seems to me that that case may be pretty clearly explained on
the basis of the business of contract or the essence of that betwe n
(I
! the Institute and the Village on equitable grounds as well . But
�Iin his conclusions , ,judge Casson said - I 'm drawing from my notes
i
! that there was no demonstrated need to expand, that the desire to
' expand at some point must yield to a legitimate case of village
! residents , that the 1965 contract existing in that case governed -
i snd that had been (unintell) to the villages master plan and tha
! there was no evidence of a village (unintell) exclusionism in an
outright sense in that marks of four campuses of University Insti-
itutions were already within the village. Since we have so little
case law that is authoritative on which to draw on here, if we
( separate out the contractual nature of that decision and stick to
�Ithe authoritative (unintell) nontheless , do you feel that you meat
I{ the standards that are spelled out that , assuming that to be
authoritative?
I
MS . EGAN; I don' t think those standards do apply. I don' t think
that there is anything in any other case that involves a straight
instance of an educational use in a residential zone that requires
us to demonstrate that we have no other space any place else. In
M
i'
II point of fact, to a certain extent that can be sustained because
Ms. Siskin can testify about how hard she has looked to find
ii
quarters for these properties and not being able to do so.
MR, WALSH: I 'm; merely speaking to the question of exemption. Do
jyou have any precise authority to which you can point which says
I
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- 16 -
I
kthat an educational use, how ever you chose to define it, is , in
; fact, exempt from local zoning? What case would you cite here?
; Concordia?
MS. EGAN: I think Concordia certainly is a time honored case on
! that issue. In the negative, Brant would do that to, although that
its not a Court of Appeals case - that one involved a school for
i
! adults . Perhaps to elaborate on your question, Mr. Chairman, if
Cornell University is proposing to put in a center which had to do
with adult education, you could say no, that ' s not an exempt use ,
MS . DE COMBRAY: What would you do if, in executive session, we
,were to decide that we didn't have authorization or the ability to
decide whether you are exempt or not and we decided to deny it ,
,what would be your recourse? I 'm not even sure if that would be .
IMS . EGAN: Well, let me just point out the anonylmous position that
i
! that creates . It leaves someone with absolutely no way of having
Ian interpretation at the level where I think it justly belongs . T e
Building Commissioner, I think - if I understand his reasoning cor
i
rectly, says - well it isn't in the zoning law that you can do thi
and I 'm not the one that is supposed to be able to interpret the
i
jeducational exemption, therefore you have to go on to the next cou t
, of resort, which is the Board of Zoning Appeals . You say we have
i
no jurisdiction over it . That 's ending up saying that any time thclt
lithe University does want to do a use which it believes is exempt
from the zoning law, is put in the position of jumping through the! e
hoops for absolutely no valid purpose because everybody says they
can' t decide and then going to court over it. I'm not suggesting— ,
MS. DE COMBRAY; That would be the next step?
, MS. EGAN: Well, if it chose to take it , it would. I 'm not saying
( that decision has been made one way or the other but . . .
i
MS. DE COMBRAY`: And in the past what has happened?
i
IMS. EGAN: In the past the city has not argued with us , we have been
i
( granted the educational exemption.
I
MS. DE COMBRAY: And when was the last time that you came to the
! city for this , . . ?
i
MS. EGAN: I don't think we've ever had to come before this Board
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17 -
!' on the question. I . . .
SMS. DE COMBRAY: When was the last time you came to the city?
!IMS. EGAN: I 've been Associate Counsel for six weeks - I can't tel
I�
11you very well what' s going on. I ' ll tell you I had a conversation
with a collegue of Peter ' s this afternoon, he can talk to him to-
morrow morning - who is a former city attorney - and I said, in
your recollection has this ever come up before? And he said, oh
sure, and I said, well what ' s happened? Nothing, they are exempt
it has just never arisen before.
MS. DE COMBRAY: At what level was that decided - at the Building
! Department?
IMS, EGAN: At the Building Commissioner' s level , as I understand
lit. And he suggested that the opinions on file, of all city attor
ineys, be consulted because they may well have issued opinions on it .
lYou also notice appenant to the letter that I gave you today on such
I
very short notice, the only documentation I was able to lay my hands
ion, whish did recite something from the tenure of Fred Weinstein a
I
city attorney. If I 'm not mistaken, he was two city attorneys ago.
And he seemed to feel - citing back. to when Jim Clynes was city
attorney - that I would find the same information had been true, that
there had just never been a contest about it. So what you are sug
�gesting by asking what would we do if you decided that you had no
jurisdiction, that is a good question because I feel as if we shou dn'
Ibe here in the first place. Ideally and no one is asking me, exce t
(you are in a back-handed way, what should be done , I would say that
,I
the city attorney in concert with the Building Commissioner, should
,look at what the cases on educational exemption and that the Building
!Commissioner should at that instance be saying something, is or is
not an educational use. I don't think that has been his ruling, I
don' t think he has ruled that it is not an educational use. I think
I
he simply ruled - correct me if I am wrong, Tom - that it 's not a
(residential use in a residential zone , which doesn' t speak to the
question here at all . We never said it was a residential use in
residential zone . We said we were exempt
IMS. DE COMBRAY: I understand that. What you have to understand
I
li
it
1
18
1�
I�
jalso, from someone who is not a lawyer, this is very confusing .
it
111MS. EGAN: It is confusing for lawyers too, believe me.
i
; CHAIRMAN AMAN: Do you have anything further on this case?
i
�IMR. ANGELL: You said you didn' t know how many properties the Univ r-
I�
(jsity owned in that area? Would they own 50% of the properties in
( that area?
MS. EGAN: What area are you describing first of all? Give me the
metes and bounds of it and I might be able to help you on that,
?maybe I would ask you what developments was to this particular
j
proceeding?
MR. ANGELL: Fall Creek Drive . . .
s
CHAIRMAN AMAN: Cornell Heights in general , the neighborhood known
as Cornell Heights.
I
IMS . EGAN: If you are talking about the whole neighborhood known a
I
Cornell Heights up to the Village of Cayuga Heights line , I 'd say
Tit ' s maybe a third.
�ICHAIRMAN AMAN: A third of all the residences in that area?
I
IMS. EGAN; Yes .
iMR. ANGELL: And to what use are they being put? Were they pri-
i
1marily private residences?
MS. EGAN: I would say that - I don' t know for sure - a lot are
private residences , they are used for the temporary housing of staff
0
for professors who are here for a short term.
SMR. ANGELL: Alright , specifically on Fall Creek Drive , are any of
the residences owned on Fall Creek Drive , used for any other pur-
pose other than private residences?
MS. EGAN: Yes. They are used for apartments , which I don' t con-
i
Isider a private residence in the sense of a one-family, which is
what I think you are thinking .
iMR. ANGELL: Is an apartment a private residence?
,SECRETARY HOARD: It' s one if you live in it. Generally they are
I
considered housing - multiple dwelling housing.
SMR. ANGELL: But they are not used for anything in a commercial
i
mature of any type?
j,MS. EGAN: No. Mind you we would not consider something of a com-
I
ii
�I
I!
H - 19 -
i
i
mercial nature. We don' t consider, for instance, the Admissions
,Office to be a commercial use, that' s an educational use.
,I
MR. ANGELL: Well , whatever. And there was nothing sent out to
11residences as to the use of that property other than the - for the
'publication?
IMS. EGAN: T don't understand your question, could you repeat it or
I
explain it in a different way?
MR. ANGELL: Was there any letter or anything of any nature sent
bout to residents in that area that, if this was not what was granted
they couldn't use it as a Publications Office, that they would use it
as a dormitory facility?
MS. EGAN: We never said we would use it as a dormitory facility,
+as an alternative.
MR. ANGELL: Never said it?
I
MS. SISKIN; I was answering a hypothetical question about . . .
MR. ANGELL: I was saying that has the University said anything to
the residents?
MS. EGAN; We have sent notices of this appeal to the residents ,
iWe sent notices of this appeal to those people who we were require
Ito serve with a notice of appeal under the law we also sent a
E
complete copy of the appeal to the president of the Civic Association.
MR. ANGELL; But no alternatives were sent as to the use of that
building?
IMS. EGAN; -We haven' t considered alternatives , remember that the
problem for us has not been how to fill up that building, the problem
is , where are we going to put University Publications? This was the
best place to put it. Well let' s look at it from the right angle .
It ' s not that we are saying we've got this building on our hands and
�we don't know how else to fill it except with University Publications .
I
It' s quite the opposite. We have a University Publications office
� which_ has to move in about three weeks , or less, I 'm sure Kelvin
!would like to move sooner rather than later, to make way for some
massive constructions We have to have a place for it . This has not
been a last minute decision, this has been under way for quite awhile
�i
jand we have many other spaces looked into for their feasibility an
i
20 -
;, ruled out and this being the place that was feasible and was well
'; suited to the use .
SMR. ANGELL: Well , if I 'm not correct, you correct me, but I belie e
�ithat there are only about four in the two-block area - four proper ie:
that aren't owned by the University?
f
IMS. EGAN: In a two-block area?
MR. ANGELL: A two-block area on Fall Creek Drive . Now it seems to
me that there must have been a plan of acquisition by the University,
jof those properties.
MS . EGAN: If you mean the acquisition was intentional , the answer
I'
i
lis yes, they did intentionally acquire the property. They were no
given to us by gift or some morning we suddenly woke up and had them.
What perhaps you are getting at is that we acquired them for some
mysterious purpose yet to be divulged to the public and that is ce -
Mainly not true,
IMR. ANGELL: Well , inasmuch as all the properties on that street are
residential properties - you say that there is an apartment or two
owned by the University which would be two-family houses - two-family
apartments?
MS. EGAN: It' s an apartment building with a number of units in it ,
I 'm not sure of the number. Perhaps Mr. Hoard can tell us -
�207-215 , the green one, Tom, do you know how many units are in that?
SECRETARY HOARD: No, I don' t .
MS. EGAN: It' s more than two, I 'm sure of that .
IMR. ANGELL: It ' s still residential use?
A
MS. EGAN: Yes . No one is denying that but what we are asserting
his that the use around it, while you may wish to take in considera-
tion - while we have in our planning of the particular office that
went into it. For instance, there was another office that was con-
i
sidered for this property but it was rejected by the administration
!because the use was held to be not nearly as compatible as this par-
Zticular use might be with a residential neighborhood.
IMR. ANGELL: Well, then you don' t feel that putting this office in
there would change the character of the neighborhood in any way?
S. EGAN: No, that is not what I said, What I said was that under
i
21 -
the circumstances , because the way we have planned putting it in a
', far as the activity that goes on there, the traffic generated by it ,
the appearance of the building, the activities that go on inside t e
i
building that they would modify it to a very small extent - certai ly
; not the way it would if you had "M" building there or that - perh ps
i
j - I don't mean to be sarcastic to you but I think that there are
office uses that could generate a great deal more in the way of
traffic, noise, lights , alterations on the outside appearance of t e
buappearance, rejected
- things which would be much more detrimental to the nei h-
Crhood a which would be re 'ected for that reason and on
� pp
far more compatible selected instead.
! CHAIRMAN AMAN: Ms . Egan, should the Board feel that it is necessa y,
would you be willing to submit a more detailed brief dealing with
the exemption question as opposed to jurisdiction to the exemption
question - what is an educational use , what the elements of that
i
! use are . .
MS. EGAN: - Let me ask you a question, would you delay your decisi n
1 - would you hold it over another month while you have another meet
Jing in order to consider that?
�MR. WALSH: Depending on . . .
CHAIRMAN AMAN: That doesn' t necessarily follow ^ we do, on occasion,
Iit isn't often but we do on occasion take cases under advisement
it
jand can meet at another date to consider additional material and
iIrender a decision prior to . . .
ISMS. EGAN: As you can see I am thinking of our time here - because
jof our construction schedule for Sheldon Court, we are going through
a procedure that we never dreamed we had to go through. In the fi st
linstance because we had not had to in the past, as an exempt educa-
tional use so we sort of feel up against the wall and if it would
necessitate holding over for still another month, I would have a
; very hard time with that decision and I would have to consult with
four people on it.
i
` CHAIRMAN AMAN: On the other hand, I 'm not saying that we are going
�i
! to do this , I 'm simply raising the point that on the other hand, if
' for example, we were to ask for a more detailed brief, let' s say
(
I
1
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22 -
i
(within a week, with the Board attempting to reach a decision within
la week after that, would that be . . . ?
!MR. WALSH: Or suppose you asked for a brief in 48 hours and 48 hours
with a decision being made within a week - something like that? I
I
mean, especially wi.ththe Board . . .
MS. EGAN: Yes, I prefer the shorter period, myself.
CHAIRMAN AMAN: Are there any further questions of Ms . Egan on this
1
particular case? (none) If not, the Board will hear from anyone
;who wishes to support the proposed variance. (no one appeared) Is
e
!there anyone here who wishes to speak against the proposed variance?
MR. BUYOUCOS: I 'm going to appear later on but I 'd like to ask a
question of Ms . Egan, if I may, before she finishes . . .
CHAIRMAN AMAN: Would you identy yourself?
R. BUYOUCOS: I 'm James Buyoucos and I 'm going to be appearing for
Dean Robert McKersie who owns property known as 212 Fall Creek Drive
i
Viand I 'd like to - I came in kind of late, I was asked to appear onl
!over the weekend and I 'd like - I heard this business about inter-
retation - may I ask, what is being interpreted - what phrase is
being asked to be interpreted by the petitioner? Is there a phrase
which indicates that perhaps Cornell would be exempt and if so, what
lis the phrase and under what section of the zoning ordinance is it?
CHAIRMAN AMAN: Ms . Egan addressed that question at the very outset
�f her presentation and you may not have heard it .
i
R. BUYOUCOS: I came in late. I 'm sorry.
S. EGAN: Jim, I can tell you that the exemption asserted is a
matter of New York State case law of some standing for educational
�ses and in authority also for what might be known as accessory
.i
educational uses . It is not a particular provision of the City of
�thaca Zoning Ordinance so you didn't miss anything.
R, BUYOUCOS: Thank you.
CHAIRMAN AMAN: We are hearing from those who oppose the requested
I
�ariance.
R. ORLOFF: My name is Neil Orloff and I teach Environmental Law
t Cornell University, I also represent the Cornell Heights Civic
ssociation, an association of fifty residents who own homes in the
i
23 -
I
!; Cornell Heights area and who oppose the Universitys plan to convert
i
; the homes in the area from residences to commercial offices in the
l
case of the residence of Fall Creek Drive and to an Indonesian
I
IlCenter in the case of the home at Wait Avenue. We oppose the Uni-
:
Iversity' s plan on two grounds . We oppose them because they are in
lour view unlawful and we oppose them because they are bad for the
neighborhood. I 'd like to address the illegality of what Cornell
proposes to do . Richard Penner will address the harmful affects
� on the neighborhood of Cornell ' s plans . Cornell ' s legal argument
` is essentially two-fold. One is that Cornell argues that it is
exempt from the local Zoning Ordinance and secondly Cornell argues
i
! that if it is covered by the local Zoning Ordinance then it is
i
lentitled to a variance or it seeks a variance as an alternative
i
, step imposed on it by the Building Commissioner. Neither of these
11two contentions by Cornell is correct. Cornell, first of all as-
�Iserts that the state law exempts it from coverage of the local
! Zoning Ordinance. Jim Buyoucos , in his question to Ms . Egan, was
laddressing himself to this question. Well , where is it in state
1
flaw, which exempts Cornell from the coverage of the Zonning Ordi-
nance? Where is this law? One can search the statutes from the
fl beginning to the end in search of legislation which would exempt
! Cornell and it would be a fruitless search. There is no statute
i
that provides an exemption - rather, as M s'. Egan has pointed out,
th.e exemption to the extent that any one exists , arises from Cor-
nell ' s reading of the judicial decisions. It arises from Cornell '
! interpretation of the cases handed down by the courts . And so ,
i
(what do the cases say? Well , the early cases addressed whether
! neighborhood schools could be excluded from a community? And in
these cases the courts found that some immunity was desireable.
The reasoning in these neighborhood school cases was , first of all
that it appeared inappropriate to pit one local governmental iunit
aganst another, in this case inappropriate riate to
� pp p pit a school distri t
fagai.nst a local unit of government and the second justification
;was that neighborhood schools further the general welfare. The
I
1! court saw that schools have to be within a reasonable distance of
i'
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!
r:
i
the homes their children who attend them and that this will often
;mean that unavoidably a neighborhood school will have to be locate
,I
;fin a residential district. While this will produce some disruption
I'
lithe court saw an overall benefit to the community. The later cases
,look to whether colleges and universities fall within this exemption
I
!for neighborhood schools. There are only a few cases which look at
any possible exemption for college and university and these cases
arose in the factual context of almost punitive measures taken by
citys to keep out a college or university and so the courts went
i
1back and they looked at these earlier cases and interpreted the local
eighborhood school exemption to really be an exemption for educa-
tional institutions . And this was the law up to 1973 and then in
(1973 the law in New York changed. In 1973, as Peter Walsh has pointed
lout in case of New York Institute of Technology vs . LeBoutillier,
the New York Court of Appeals , the highest court in the state of
IIew York, ruled that a university' s desire to expand did not overri e
tthe provisions of the local government Zoning Ordinance. The case
oncerned New York. Institute of Technology - a non-profit, co-educa
I�
ional college, chartered by the Board of Regents and located in O1
estbury, New York. In 1970 the college acquired a 58 acre estate
located a half male away from the campus and situated in a resident al
omm unity. The college then applied to the Board of Zoning Appeal
�I
or a permit to use the home there for classrooms and for offices
or its teacher educational programs . Proposal by the New York
institute of Technology went to the Planning Board of Old Westbury
the Planning Board of Old Westbury recommended that it be denied
4
ecause the proposed uses would alter the character of the neighbor
ood and would pose some traffic problems. Thereafter, the Board o
oning Appeals denied the college ' s request.
HAIRMAN AMAN; Excuse me, Mr. Orloff - now what standard did they
4pply? Did they consciously not apply the usual economic hardships
standard or did the standard that they applied equal economic hard-
hip standard or are you suggesting to us that there is a differen
tandard that applies in this case and what you just said is it?
R. ORLOFF: The New York Institute of Technology was a case that
I
i!
25 -
; was even more favorable to the University' s position there than this
! case is here. In the New York Institute of Technology case the
11Zoning Ordinance provided for educational uses with a special permit
Ii CHAIRMAN AMAN: I see.
li
IMR. ORLOFF: The college, having been turned down in its request f r
is special permit, then sued the village of Old Westbury, The special
, term upheld the Board of Zoning Appeal 's decision, the college
further appealed the case to the appellant division and the appellcLnt
division affirmed the Board of Zoning Appeal 's decision, and a fur
ther appeal was filed to the highest court in the state of New Yor ,
the New York Court of Appeals , which upheld the Board of Zoning
Appeal ' s denial of the special permit, In its opinion, the Court
of Appeals directed itself to the College 's argument which is an
argument that Connell is using here - that it is more economical t
( renovate existing structures than to undertake new construction on
campus and it responded pointedly. It said, on page 132 , the opinion
"The institute contends , and it is more feasible economically to
1purchase the estate and to renovate the existing structures for it
I
jteacher education program than to undertake new construction at it
I
main campus, But at some point probably not definable with precis on
i
is college ' s desire to expand, here by the path of least economic
resistance, should yield to the legitimate interests of village
! residents , The right to expand is not absolute, " And so the Court
, of Appeals concluded that the Board of Zoning Appeals had acted
reasonably and upheld its denial for a permit. Accordingly today
after the 1973 decision of the New York Institute of Technology vs
ILeBoutillier, there is no blanket exemption for a college or unive -
Isityfrom the zoning ordinance.
MR, WALSH: Neil, isn' t that decision really perfectly explinable
or just as readily explalinable as a matter of contact in view of the
fact that if the University hadn' t agreed with the village on cert in
�llimits of its expansion, it was part of the village master plan?
MR. ORLOFF: I don't think so Pete. The court at the beginning of
, the case expressly addresses itself to why it took the case. As
liyou know the Court of Appeals does not hear all cases which they a e
it
t
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1
, requested to hear. And it said at the beginning the opinion - we
, granted leave here - leave to appeal - to consider whether zoning
! boards should be afforded greater latitude in passing on applicati ns
I�
1lfrom educational institutions. So the first paragraph of the opinion
I
! the court adopts the perspective it is going to apply and then lat r
on in the opinion, the court says - on page 132 - several factors
I!
persuade us there should be an affirmance in this case.
MR. WALSH: But you know what the court takes is not necessarily
binding - it has its own journal practice in that regard.
MR. ORLOFF: That 's right but the court in its opinion cites several
( factors, I think the last factor is the agreement between the village
and the institute on what it is planning would be but that is , as
you know from reading the case, not the only factor - the court alEo
looks to the alleged benefit to the university from expanding and
says - that 's not sufficient to override legitimate interests of the
village. And indeed as was pointed out earlier , when Ms . Egan was
` asked what case supports an exemption, reference was made to the
i
Concordia case . The Concordia case is a 1950 case and the Concordia
! case was expressly cited by the Court of Appeals in its decision o
11973 so it is clear that the Court of Appeals was aware of the Con
I
cordia case .
iMR. WALSH: And did they overrule it '?
MR. ORLOFF: I think they didn't overrule it expressly because the
Concordia case does not stand for the proposition that a University
is exempt from zoning ordinances . The Concordia case, as you
probably remember, concerned whether the zoning
ordinance under
review there was constitutional or whether it violated the due pr -
cess clause and the Court of Appeals concluded the zoning ordinanc
violated the due process clause because it was 80o requirement for
signatures of residents in the area,
MS. EGAN: Pete, if I just might speak on the . . .
CHAIRMAN AMAN: Excuse me Ms . Egan, we like to take up each party
one at a time, if you do want to respond you will have an opportun-ity
for that .
MR. ORLOFF: Well perhaps recognizing that Cornell is not exempt f om
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I�
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- 27 -
ij
Ij
lithe city zoning ordinance , Cornell ' s second line of argument is th t
1
Fit should be given a variance. But to grant a variance in this si u-
ation would also be unlawful . As you know Section 30. 58-b3 of the
! Zoning Ordinance sets forth three tests that must be met before a
use variance may be granted. Cornell ' s property satisfys none of
these three tests . We can go through, I think, the tests very quickly
since there was some discussion of them earlier . . .
! CHAIRMAN AMAN: I am not sure there is any claim that they do , in
jthis case, seems to me that is a moot issue.
i
MR. ORLOFF: Well, if Cornell then is not arguing that it satisfie
lan of the requirements for a variance and therefore has not ro-
i Y q � P
Iduced evidence which would justify a finding that any of the tests
( have been satisfied, the Board of Zoning Appeals is not empowered lo
grant a variance , would you agree?
I
;CHAIRMAN AMAN: We ' ll get back to this . My understanding was that
{
you applied for the variance simply because you felt that you had
Ito but your real concern here is the educational exemption and the
have not attempted to claim there is an economic hardship or that
there is no way of using this property no way it would yield a
; reasonable return to the University.
MS. EGAN: I think the questions that were asked, they did elicit
I
( responses that spoke to that sort of evidence though - I don' t
, think there is no evidence .
ECHAIRMAN AMAN: Why don' t you briefly address them then.
i
IMR. ORLOFF: Okay, as you know there are three tests that must be
I
isatisfied and upon which- the Board of Zoning Appeals must make
! explicit findings in order to grant a variance. The first of these
I
! tests is that there are special circumstances or unique conditions
that apply to the land and they do not generally apply to other
land in the neighborhood which would prevent the land for which the
variance is requested from being used for any of the permitted uses .
Ij
( This is the uniqueness test. I submit Cornell has submitted no
! evidence that there are any special circumstances or unique condi-
i
11tions applying to the land. There is no evidence in the record
upon which this required finding could be based. Indeed there$ e cou d
i
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28 -
i
'be no evidence because the Cornell parcel is like all the other
�jparcels in the area. Apart from showing that the land is unique,
i
there is a second test. The granting of the variance must be nece -
I
��sar for the reasonable use of the land. This is frequently, Y termed
the hardship test. Is there no reasonable purpose for this land
that is permitted under the Ordinance? The question, it seems to
Ime, scarcely needs to be asked. The land is in a residential area,
it is ideally suited for a residence. It has , in the past , been
fused by Cornell as a residence for its faculty members . Indeed, I
I
am told that two years ago the Gardner family lived in this specific
i
residence at 316 Fall Creek Drive as a residence and that the Gard-
ner family was asked to leave by Cornell University. I am also told
that Professor Jeff Frye lived in a house two doors away from this
iresidence. Professor Frye was a professor at Cornell University, he
i
Iwas also asked to leave from this residence and he responded by
I
offering to buy the residence. Cornell refused. The Planning De-
partment of the city has found that there is a need for additional
residential units of this type . Indeed it seems to me unreasonable
Ito conclude that the only possible use for this land would be as a
office building and that it could not be used as a residence. And
the third test that must be satisfied, apart from the uniqueness test
and the hardship test, is that the granting of the variance will not
I
be injurious to theneighborhood or otherwise detrimental to the
public welfare. This is the no-harm test. The opposition of the
fifty members of the Cornell Heights Civic Association is testimony
to the widespread concern that the proposed use would change the
character of the neighborhood for the worse. What is this harm?
Richard Penner will address in detail, I 'd like to briefly mention
(several of the concerns, First of all the buildings would be empty
(Ilate at night and on weekends and reduce the sense of security and
! safety in the area, And in contrast during the day the offices
would produce substantial foot traffic and car traffic compared to
Ithatproduced by a typical family. And the proposed uses would
clearly make the homes on the left and on the right, which are cur-
rently occupied now as private residences less desirable as a home .
i
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29 -
jOffice buildings are not kept up with the same pride and care that
, the home usually is and office buildings are not concerned with
, the personal welfare of the people next door. Thus, converting th
!';house
into an office building would make the neighborhood less desirable
( for residential purposes and Cornell ' s proposal fails the third, t e
; no-injury test. In summary, Cornell 's proposal fails all three
i
tests that must be met under the Ordinance for a variance to be
i
granted, the land is not unique, it could be used as a residence a d
! its conversion would be injurious to the neighborhood. And for
Ithese reasons the Cornell Heights Civic Association asks that you
( deny Cornell' s request for a variance .
IMR. WALSH: Neil , assuming, for this purpose , that we have juris-
diction and assuming as well that there exists a (unintelligible)
� an exemption whole or partial for educational uses, would you
, concede that the use anticipated in this instance was educational?
MR. ORLOFF : No, I would not.
! MR. WALSH: How would you limit educational?
I
MR. ORLOFF: Well I think you have to go first, Pete , to the reason
for which you want to answer the question, what is an educational
use? If your reason is to decide what degree of deference to give
to the proposed use then it seems to me, what is necessary is a
balancing - a balancing of the extent to which this proposed use i
( indispensable to the educational mission of the school , balanced
against the extent to which this use would be disruptive to the
( community.
NIR. WALSH: That' s not quite the question of what constitutes an
educational use. You are balancing whether the use itself would
The okay against the interest of the community at large but how do
(jI determine if there is an exemption for educational uses , what
f
Iis an educational use?
, MR. ORLOFF: Well I think the reason that you want to make that
decision is to decide what degree of deference to give to the pro-
posed use of the area and I am saying that what you have is a con-
tinual deference, it is not a yes , no, there is no concern for
village interest on the one hand and on the other hand there is a
i
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;' concern for the village interest but rather to the extent that you
i'
�i
, find that there is a limited exemption, the limited exemption woul
I! be a withdrawal of judgment on the constraints which would apply t
! the use and the degree to which you withdraw judgment would depend
, upon this balance.
ICHAIRMAN AMAN: To go back to your first point somewhat related to
�Mr. Walsh' s question, your basic argument here , the basic legal
argument is that the Ithaca Zoning Code can be taken unlike the
zoning codes that were being construed in the cases that we've been
batting around here tonight? Unlike those zoning codes , the Ithaca
i
! Zoning code does not have any provision for an educational use - it
# does not state that there shall be an exemption if the use is edu-
�Icational?
�IMR. ORLOFF: Within this residential area, there are other provisi ns
lof the Zoning Ordinance which permit educational uses as a matter
I
of right and there are also, for example, in this particular area . .
CHAIRMAN AMAN: What we need to permit for educational uses is a
matter of record you mean in areas that are zoned for business o
� R-b2 or R-b3 . . .
IMR. ORLOFF: Two things . First of all there are some areas - the
areas zoned P-1 which are expressly permitted - in which are ex-
' pressly permitted educational uses. P-1 states that a permitted
primary use is a public and semi-public institution whose purpose is
education. Okay, In addition the Zoning Ordinance also permits
other more limited types of educational uses in a residential area
by a special permit . For example, use number 6 is a nursery schoo
jor child day care center which is permitted in a residential area ly
special permit. I don't think Cornell is arguing that we have a
Inursery school or child day care center here and so that 's not the
type of educational use which would be permitted in the residentia
urea. But the Zoning Ordinance does permit them in other portions
iof the city.
CHAIRMAN AMAN: So you are saying that you have to look to the
zoning code and there is nothing in the zoning code that would
allow for an educational use in this area and that , therefore, you
ij
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31 -
!! are saying, that that standard doesn't apply or at least the Board
! can't apply that standard?
l
'MR. ORLOFF: If I understand you correctly.
! CHAIRMAN AMAN: I 'm trying to understand you correctly.
MR. ORLOFF: Well which standard are you . . .
!I
( CHAIRMAN AMAN: No. I just want to make sure I understand what the
basis of your (unintelligible) position is . Ultimately there is
(nothing in the zoning code which authorizes the Board to grant or
deny or pass on educational uses other than the provisions that yo
designated just now.
l'MR. ORLOFF: But there are several ways in which you could get an
educational use. It either would be a permitted use as a primary
permitted use or a variance or a special permit if it were a nurse y
school in a residential area? Mr. Penner, from the Cornell Height
( Civic Association also would like to address this matter on behalf
i!of the Civic Association.
MR, PENNER: My name is Richard Penner, Ifm a resident of Cornell
jHeights and I live on Wait Avenue in the city, The neighbors in
!Cornell Heights are extremely concerned about the proposed conversion
i
lof the house at 316 Fall Creek Drive from a single family residence
into University Offices , We have many of our neighbors in the
audience, and just for the record I would like them to raise their
i
ihands as sort of an indication how many people have come down tonight
Ito the zoning board meeting. Something in the order of about twenty
!five of our residents who are here tonight - the other twenty five
!
Tare at home with the children, We request that the Board of Zoning
(Appeals deny the application for a use variance. The conversion
would have numerous unhappy results on both this street, that is
Pall Creek Drive, and on the entire Cornell Heights neighborhood.
Many, of these negative effects have already been discussed by Neil .
The fact that a non-residential use would significantly change the
character of Fall Creek Drive which, up to this point , is entirely
;residential . People are there eventi.ngs , people are there weekends ,
people are next door when you don't get your newspaper , you can go
borrow theirs, etc. There would be numerous traffic and parking
!
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32 -
jproblems . The University has started to address this problem but,
I
as has been pointed out, the University Press lot is full, there
is already illegal parking on the block and even if the University
tries to enforce the permit parking - that would only push more
cars onto the residential streets in the neighborhood - onto
Thurston Avenue, Roberts Place, other places in Fall Creek Drive
etc. Another negative effect is that we e )pect a certain lack of
maintenance and this would affect the remarkable beauty of Fall
Creek Drive. Cornell , at the Planning Board meeting, asserted that
it would maintain the property and I think also on their applica-
tion for a variance but that gives little comfort to us who have
watched the rapid deterioration of properties that the University
owns on Dearborn Place and Wait Avenue , on Barton Place, on Thurston
Avenue and some on Fall Creek Drive. On the other hand, rather than
a conversion, the denial of the use variance by the Board would have
certain positive affects . It would assure the continued maintenance
of Fall Creek Drive as one of the most beautiful and distinctive
residential streets in the city. At this time it is entirely resi-
dential it is a mix of family owned properties and of University
owned single and multiple residences . Denial would help maintain
the integrity of the Cornell Heights residential zone and would also
Irespect the long-term plan of the city as intended and as expressed
by the Zoning Ordinance. Denial would encourage the University to
form coherent long-range plans to meet its need for expansion and
at the same time it would discourage the University from haphazard
incursion into the adjoining neighborhoods . Many of us who live
� in Cornell Heights do so because of its proximity to the Universit .
( Most of us work at Cornell . We do not feel , however, that we should
allow the University to rectify its short-sightedness in space
planning by compromising the quality of our homes and of our lives
There exists now a balance of family residents and student housing
� It is a balance that we , for the most part are happy with. But it
is clear that i,t would not take many conversions such as this one
Ito tip the scales. And, therefore , we ask that you deny the use
I
( variance in order to preserve the neighborhood identity of Cornell
i
33 -
I
s
(Heights . Thank you very much.
( CHAIRMAN AMAN: Thank you Mr. Penner. Is there anyone else here
(who wishes to speak against the proposed variance? Mr . Buyoucos .
MR. BUYOUCOS: I represent former Dean McKersie of the IL&R school
who owns 212 Fall Creek Drive. That' s the house first east from
Barton Place. Cornell owns the house at the corner of Barton Place
and Fall Creek Drive and he is right next to it . Now he received
no notice about this hearing and that is understandable - he doesn' t
hive within 200 ' but his interest , nevertheless is very, very keen,
so he called me up over the weekend and in this short time I ' ll try
to put some facts in the record in his behalf. I wish that he wer
here to speak for himself because I think he could speak quite elo
quently about the manner in which Cornell has gone about this
business which affects the economic value of his house very severely.
jJust for the record I ' d like to put into evidence , four pictures cf
+his house which are marked McKersie exhibits 1 , 2 , 3 and 4 . I 've
( heard some very fine arguments about the question about whether or
not an educational institution is exempt. I wish to argue most
strenuously that there is no law that an educational institution i
exempt from the effects of a zoning ordinance. This is the kind o
loose statement that accumulates over the years based upon circum-
stances and misinterpretations and just loose thinking about the
problem. Certainly if Cornell were exempt, if an educational insti-
tution were exempt there wouldn' t be several cases in the court of
appeals saying that the locality could do what it did, as it did
lin the LeBoutillier case. Pete, words are tricky, judges opinions
lare very tricky, they didn't say this was a matter of contract ,
there was a long recitation in that case of many, many, many
factors . The interesting thing is that there was a - remember the
first sentence was that this - the contract here now becomes rele-
vant. The second sentence was that it has become part of the
comprehensive plan of the community. You know, and I know, that
no zoning law can be enacted that has merit, that will sustain an
attack, unless it is part of a comprehensive plan. A comprehensive
plan can arise out of a planning report, it can arise out of a series
of positions taken from time to time by a municipality - here they
i
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- 34 -
I'
!; happen to be astute enough to put it in the form of a contract.
I
`; And they said, let there be no misunderstanding in the future
are n
because you guys are much better educated than we r and you can
Ilarticulate much better than we can - so let ' s put it right down in
black and white. So you see, the fact that it became part of a
i
'comprehensive plan puts it in about the same position as if Old
ijWestbury, the village , as indeed it did - said, hey, wait a minute
IAwe 've got some concerns here and we want to talk to you about them.
fNow if an institution were exempt , I don' t see how the Court of
I�Appeals could have granted the decision that it did or that it would
have been necessary for them to go that far. There are some earlier
cases in which it is said that an educational institution may be
,regulated by special permit. Now if it is exempt then obviously it
cannot be - the statement that it can be regulated by a special
permit would be illogical. That' s the case in two New York (unin-
i
elligible) I don't have the citation in front of me but I remem
er it in connection with- two or three cases that I 've been involve
in as attorney for the Town of Ithaca. I don' t see any way out of
his . The idea that an educational institution like Cornell can pick
p property and then say we are exempt - well think of the conse-
uences of that, I know, for example, that Cornell University
Dither owns or is about to acquire title to some very elegant property
I
�n Cayuga Heights . It surrounded by some very elegant properties .
ow, I don't think that Cornell is going to claim that they can go up
here and, to take this right out of Cornell ' s brief, and put -_
conference center, a light manufacturing plant, a school bus gara e ,
railers as temporary classrooms all of which have been cited by
ornell as educational uses . And they may be, you see, that ' s the
roblem. What is an educational use? I think this proposed use
or this building may be an educational use, I 'm not going to argue
ne way or the other , but the concept is so broad that you can see
hat can happen to a l cality if there is no reasonable regulation
n the part of the municipality. Now, just imagine what could happen
ere - Cornell uses this building up here at 316 - which was former!
ccupied by Lyle Carter, and I remember I was in the house - and
it
li
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they say, we are going to put that for a business use. Then the
!next one, for another educational use that can have a place where
lithe trombones practice their sextets in the middle of the night -
I
that' s an educational use - a very refined educational use . You s e
it
, you can go all the way down the line and the next thing you know
Cornell is just gobbling up and devouring all these properties .
! Now Cornell owns a large part of east hill but they don' t own all
� of it yet, nor should they. And consider, if you will, your argu-
ment that Cornell is exempt , place some houses on Eastwood, place
some houses on North Aurora, Tioga, place them in some of those ni e
( residential areas - it just doesn' t make sense . So on that basis , I
Idon't see the argument, there is a logical basis , Just consider
what I told you and remember, Court of Appeals cases say, yes the
locality could do this if it were exempt then that argument could
not be made. So we come to this question of interpretation. In
( thirty years of batting around zoning ordinances , riding them, and
being battered down quite a bit, too, I might add, in the courts
and outside of the courts , the question of interpretation has come
up. Of course there are questions - cases where you are going to
say there is a need for interpretation. Three-story units may be
permitted, well how about that area on the first floor - you know,
I
where the land slopes down this way towards it is it a full stor
dor isn' t it? That sort of thing. Certain measures of time, certain
factual physical measurements is it a steeple, or isn' t it a
( steeple - is it an extra room or isn' t it an extra room? But here -
I
this is a matter of common law this is a matter for the courts .
What is the section in state law that you seek to interpret? I
! don't see any. Cornell has met - Ithaca has met the test in the
ILeBoutillier test because they have provided for Cornell in the
PU 1 , as I read it, It ' s there and they have added PU-1 districts
Now there has been a lot of talk here as to what is the remedy
i
going to be. I say that is absolutely irrelevant . Your function,
11 think, is to decide a) is there something for us to interpret?
Do we take this , I say you don't because of the reasons I have
stated. And it seems to me that - and I ' ll jump a little bit here
I I
i,
Is - 36 -
I
; ahead of my argumant - that if this is denied and you say, go to
11the courts , that' s exactly where a whole series of cases say you
ij
(;must go. If Cornell doesn't like the residential qualification of
;; this area- or the residential characterization - classification of
i
Ithis area as residential , then it ' s remedy is to ask for a rezonin
and if it is denied then the classical remedy is you appeal to the
Supreme Court on the grounds that your position in denying me ,
Cornell , was unreasonable. And, also, if it is a matter of exemp-
tion, you go to the courts . I don't care what any city attorney
said, with all due respect , I don't care what any past Board of
(' Appeals may have said. I don't think any city attorney or any
' Board of Appeals has a higher standing than the Court of Appeals
! in the state of New York. That ' s where you go to make these
decisions . These are - these may be complex decisions , many factois
;
must be considered and I think it 's a matter of case law. I don't
0
Ithink there is anything for you to interpret here. Now having had
I
, other people talk about the matter of hardship, I just want to say
that I endorse Mr. Orloff' s argument completely, Cornell absolute y
? has not established, and it must establish in the record by some
; material amount of evidence that it has met the three criteria whi h
I
Aare not only in your zoning law but are taken almost verbatim by
Ithe zoning law, out of the Otto case in something like 282 NY in
; the Court of Appeals in which the courts there very eloquently laid
down the reason why these tests are there and why they must be met
lWheth_er or not Cornell has tried or rather let me put it another
way the motive for Cornell ' s asking for a variance is irrelevant
, They have asked for it but it was up to them to establish certain
1
' things and they have not done it as a matter of record - the case ;
effect said that you have to show� a dollar and cents economic hard-
ship. You must fail to show a - you must show that you cannot halre
la reasonable return for the permitted use, So it seems to me that
! there is no question about it, By that test to say that you are
, having to stay up late - you shouldn't even have to retire from
I
jthe room tonight to make that decision, because I think it is quit
self evident. But there is one other - there was a long series of
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37 -
it
1Istatements which were made by counsel for Cornell , which again I
jthought were completely irrelevant and those were the reasons why
Ithey wanted to use this property for this purpose and that prupose
�
, and that purpose . Now, it is pretty well established and this is
Flaw and the law can be found - I 'm sure that if you went to Anders( n
or the other fellow who has written that standard work on zoning,
you'd find it laid right out - that the land-owner' s personal
problems are of no concern in this matter. The fact that a land
owner can make more money and get higher profit by other than a
I
permitted use is irrelevant so far as the courts are concerned and
Ithe cases are all four square on that point. The fact that Cornell
would like to use these properties for other reasons, again, are
not relevant because the law is that the land owner must use the
property for the permitted use and he can't come in to say that I
want to use it for something else - he ' s got to have reasons . Not
;that he is - Cornell is an educational institution - would prefer
that they use it for whatever they want to use it for. That , I
think, is well established in the law and cases can be submitted
ion that and if you want it I think I could reach into one of these
,files and find it. Now I do think that Mr, McKersie has suffered
something that is particularly detrimental to him, He bought the
property in 1971 . He paid a very good price for it by 1971 standar s .
He put an equal amount of money in repairing that property. What did
e put it in for? He put it in to have that property as a residence
with one apartment . In other words he doubled his investment in the
lace, not for any purpose other than to improve it for residential
ur,poses , Cornell comes now with its arguments and you can see what
gill happen to him, Of course he is not immediately next to it but
when he goes "to sell his property the purchaser, if he is alert or
I�tf he has got somebody alert looking out for him, he is going to sa
�ow wait a minute, down the road apiece Cornell was permitted to
�hange the use of that property. Next to you here there is a property
Awned by Cornell as there is, the former Adams property which front
pn Barton Place and it is right next to Mr. McKersie's, And there
II.s another one up in the corner which is also owned by Cornell and
i!
i
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38 -
(jone behind it on the north side. In fact , on Thurston Avenue all
; abounded by Thurston, by Fall Creek Drive and Barton and Roberts -
I
fall of the properties are owned by Cornell except four. So you se
Ijhe' s caught now. He says I spent all of this money to improve my
i
house as a residence - I have this inflationary scale of increase
i
in real property values , but it is a laugh so far as I am concerne
i
because I find now that I am going to find it difficult to sell
i
Ithis property of mine precisely because I 've improved it as a resi
i
Idence in reliance upon what that zoning law said and now somebody
t
lis coming along and saying those rules don' t count. Materially,
� he has been very, very seriously affected. And the things . . .
i
MR. WALSH: (Unintelligible) buying property that the legislature
itself may change the zoning?
o;
MR, BUYOUCOS: The legislature, of course the legislature may change
ithezoning. That ' s true but you are not asked to change the zoning
�I
Inow you are asked for an interpretation of the present law and
( that' s a big difference. He was entitled to rely on that law as i
A
was , Pete. Of course, that is one thing you do tell people - some
times municipalities go wacky and change the laws and you've used
Iterm,s almost similar to that and I know I 've done that a number of
jtimes. Your question is pertinent but I don' t think that it is that
pertinent to this case. Now I know it was a proper question to as
but we are not being asked to change the zoning law now, we are be ng
jtold the zoning law is something different. Let the court decide
that, So you see he has got a real interest and the tough part is
i
Ithat Cornell will have a monopoly. Don' t you see if Cornell is
given the right for house 1 , 2 , 3 , 4 to be used for purposes other
than residential, then you see Cornell - its like blockbusting -
iyou know, all of a sudden I 'm faced with the idea that if I can't
sell to anybody else, I 'll have to sell to Cornell because they ar
the only educational institution around Fall Creek Drive , you can
he sure of that , Now I would like to just put a few comments in b
� my real estate appraiser, just for the record,
t
jCHAIRMAN ,AMA,N, If we could , I don' t want to cut you off there
! but if we could do it quickly because it is getting late.
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�)MR. BUYOUCOS : Quickly, fine. This is Larry Caldwell , I ' ll submit
I+
iia page of his qualifications accepted. I don' t have to qualify him.
i'
Thank you.
�1MR. CALDWELL: Shall I just sit down there?
(i�
;CHAIRMAN AMAN: Actually I think it will pick up better if you stand
at the podium.
IMR. BUYOUCOS : Mr. Caldwell , did you inspect Mr. McKersie ' s property?
EMR. CALDWELL: Yes at the request of Mr. McKersie, some time ago , I
Idid an appraisal on the property and find that the property is a
every attractive property, it has been well maintained, it is highly
desirable in the Cornell Heights residential area which is a prime
I
residential area for faculty. The property is located in an R-2a
(zone which is a residential zone. I find that the value of the
I
house is in excess of $100, 000 in the present market place .
iMR. BUYOUCOS: You heard a lot of testimony tonight about the ad-
verse affect whicha change in use would have on the other properties
lin this area. Do you, as a real estate broker, Mr. Caldwell , do you
i
lendorse that position?
I R. CALDWELL: I concur with those presentations made .
R. BUYOUCOS : And there is no question in your mind that this house
(would be less desirable for residential purposes if the other house
I�
� in the area were not used for residential purposes , is that correct .
R. CALDWELL: Yes that is correct.
R. BUYOUCOS: And is this due to th-e general statements which were
ade that a person wanting to buy a house for residential purposes
ants other residences there, the upkeep, the neatness , the pride
i'n the��, h outside of the house , the fact that there is more safety and
( there should be safety, can you say that those are valid considera-
�ltions?
R. CALDWELL: Those are definitely considerations of families .
i
R. BUYOUCOS: And you would concur in them?
�6. CALDWELL: I concur in them.
R. BUYOUCOS : Just one very brief statement more and that is the
niversity if it alleged hardship would you as an experienced real
le state broker claim that the University could not realize a reason-
jable return from the properties for residential purposes?
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!MR. CALDWELL: There is no reason to expect that Cornell would suff r
i
Jany hardship if they had put the house on the market for open
i
!! rental or open sale on the market place. There is a definite need
I i.
: for residential housing in the area and they would recover any in-
jlvestment that they had in the property.
IMR. BUYOUCOS : It is true , and you can state as a real estate broker
i
that there is a shortage of housing for families either for sale o
Ifor rental in this area, is that correct?
f
MR. CALDWELL: Definitely.
IMR. BUYOUCOS : And is this area particularly desirable for probably
! the best of buyers group in this area, namely Cornell University
related families?
! MR. CALDWELL: Yes, because it is a very convenient walk to the
I
University.
! MR. BUYOUCOS: And here Cornell is trying to do them out of it, is
i that right?
l! MR. CALDWELL: That is correct .
'SMR. BUYOUCOS: pkwy, thank you.
ICHAIRMAN AMAN: Is there anyone else who wishes to speak against the
i
! requested variance? Yes sir. Given the hour and the fact that w
1 have another case to hear, specifically the property that has to d
jwith. the Indonesian House, I would request that you try not to
( repeat too much of what has already been said.
i
IMR. BUYOUCOS: Mr, Chairman, just one thing more - if it is a
question of a brief we 'd like to know whether or not we should sub
!
emit one and 48 hours is kind of short notice.
IMR. BANpIELD: My name is Dave Banfield. This is Robert Boothroyd
Jr. and we are the Sth Ward Aldermen of the City of Ithaca which
! represents the area in question. We are not going to be long, we
are here to read a statement and present a petition to the Board
, from the neighbors of the area. "We , the residents of Cornell
Heights, object to the use of family residences in our neig hborho d
and we call upon the City to help us resist the spread of the univ r-
sity from the campus into the Cornell Heights area. We do not wan
Ito become another Collegetown. " and I'd like to present the petiti n
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to the Zoning Board and I 'd just like to add one comment that I
don' t think anyone has touched upon tonight and that is the fact
Ifthat zoning is the only recourse that the neighbors have against
i�
the encroachment in the neighborhood and I hope that the Board will
f
consider the number of people here representing that area and thei
elected officials who are opposed to both of these variances . Thank
you very much.
IIMR. BOOTHROYD: Just a brief word - not to drag over any other ground,
iI would remind the Board that it has been the stated policy of the
I p Y
I
Common Council of the City of Ithaca and the mayor that we maintain
and upgrade the residential neighborhoods of the whole city of
i( Ithaca and in particular, at this point, maintain the residential
, character of the Cornell Heights area.. We have done a lot to that
end, as you are aware , we've increased our Building Department con
siderably on enforcement we 've also started Ithaca Neighborhood
Housing which is a successful case of rehabilitating houses in
Ineighborhoods . We are committed to residential areas and we trust
' that that thrust will continue.
CHAIRMAN AMAN: Anyone else who wishes to speak?
i
1MR. ROBEY: My name is Bryant Robey and I am the chairman of the
iCornell Heights Civic Association. I have some written testimony
which I 'd like to . . . I 'd like to appear in opposition to the
request by Cornell for a variance to the zoning for 316 Fall Creek
Drive and if I may also address my remarks to the other property i
exchange for a promise not to speak at that time. I 'm going to depart
briefly from my written testimony, Shirley, to respond to a few
things you said. But first let me read the first paragraph. I
appear in opposition to the request by Cornell University for vari-
ances, to zoning for 316 Fall Creek Drive and 319 Wait Avenue . In
� a meeting last week between the Cornell Heights Civic Association,
Of which I serve as chairman, and Cornell Senior Vice President
!!I William Herbster, the Association received assurances that Cornell
would improve maintenance of its properties in our neighborhood
� g
and would reconsider policies that encourage turnover of tenants
f in houses it owns in Cornell Heights. We appreciate these assur-
ances and I 've indicated to Mr. Herbster in a conversation that we
is
( - 42 -
V
jjdo. I am concerned in light of these assurances that the tone and
! the substance of the University' s appeal tonight, Shirley, I be-
lieve you said that you are appearing under protest , in fact. I
Iidon't believe this is in the spirit of what Mr. Herbster said and
I can only think either that the Legal Department was not in touch
1with the Senior Vice President or else I would have to, and I hat
to say this , question the sincerity of his remarks because the
iapproach that you are not bound by local zoning flies in the face,
and I don' t believe that 's too strong a term, of the express state
ments of Mr. Herbster at the meeting, that you did care about the
neighborhood. Secondly, Shirley, you mentioned questioned the
i
character of the neighborhood and I want to spend a moment on this
ibecause Mr. Herbster Made a large point of the question of mainten-
ance of property, in fact, he moved quickly and we appreciated his
(fast action to assign James Kidney, of the University, to be a kin
�of liason and I am meeting with him tomorrow to discuss maintenance
concerns . But when we talk about character of a neighborhood, we
are not talking about paint and lawns and bricks and mortar. We
are talking about people . I remarked - the other night we failed
to get our Ithaca Journal - Friday night I was anxious to read
it to see what had happened on Thrusday or what the Journal said
had happened, and I was happy to say when I finally saw it that the
ere entirely accurate. I went across the street to my neighbor' s
house to get a copy of the Ithaca Journal and it occurred to me at
,that point - this is really what this contest - if you will - is al
about. If I lived across the street from the Cornell Indonesian
roject or the Publications Office, there would be no neighbor they
and I think that is what we are talking about in the character of a
neighborhood, I think we have a unique neighborhood in the city an
that is because of the people that live there and we have a close
association with- Cornell . I find myself in a really very embarras-
sing situation to be in opposition to Cornell. I 've worked closely
with both- the modern Indonesian project and with the Publications
JCffice and at least until a few months ago I counted these people
la.s my friends and I hope I still do. I served at Cornell Administr -
ion for four years as Public Information Director. It is very
43 -
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! troubling for me to have to fill this role and the only reason I d
r I believe
so is because /deeply in the character of the neighborhood and the
' people that live there and I truly believe that it is not in
Cornell ' s interest even to convert properties - the ultimate effec
lof which would be to drive out the very people Cornell employs as
i
professors and administrators . Now I will continue with my less
inspired written text. We view with alarm the proposed conversions .
We live in delicate balance with the University. Replacing residents
{ with offices or student housing diminishes the attractiveness of t1le
neighborhood as a place to live, not only for current residents but
ifor future residents as well and here I am echoing to some extent
'' what earlier speakers said, for which T apologize. Each conversion
makes the next one easier to obtain. Eventually, remaining reside is
who cannot compete in the marketplace with Cornell ' s economic powe
! should the University decide to purchase properties in greater num
bers , would have little choice but to sell to the university. The
I
neighborhood would cease to exist, When asked to provide assurances
I
of the future stability of the neighborhood, at the meeting the
! other night, Mr. Herbster could not do so and I can understand why
' he could not, he ' s- not in power to speak for the University ten,
twenty, forty years ahead but in view of that fact , we continue
, to fear that the conversions proposed tonight are but the first of
others to come - - if not next year or the year thereafter, sometime
din the future. The neighborhood is zoned residential for a purpose :
Ito protect the present character of the neighborhood. Change is not
' inevitable. Only when, and if, Cornell can persuade the Governmen
� of the City of Ithaca that the area should be rezoned to permit th.
use of residencesforoffices and student housing, should the City
iof Ithaca agree to permit the further expansion of the campus into
the neighborhood, If you will remember, the area was rezoned a moire
restrictively several years ago in response to what we perceived t
The gradual deterioration of the neighborhood and we went to the
City as asked for this action to protect us and it is that protec-
tion which- we now feel is at risk, Cornell cannot demonstrate to
"
. the Board of Zoning Appeals that the two residences in question ar
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hunsuitable for residential use and I will add here that they have
I
root tried to . They were built as residences and have served that
;purpose for many years . They are little different from the house
purchased several years ago at 209 Wait Avenue. It has seven bed-
lrooms and was in a state of disrepair when I moved in. My family
and I have invested at least $20 ,000 in the house , upgrading it,
(fully insulating it , and repainting it inside and out. It is today
I
an attractive and comfortable house because of our efforts and
expense . Why should the university be permitted a lesser standard
(for its houses on Wait Avenue and Fall Creek Drive? Moveover, in
4he case of the publications office, there are other locations
I
jpossible , and probably for the Indonesian project as well , that 's
i
just conjecture on my part. For the past two years the office in
,which. I work has been housed in the same building as the Cornell
!University publications office, directly above it. The nature of
�ithe work r publishing a monthly magazine - resembles that of a
publications office. Yet , we were able to find desirable and rea-
sonable space on State Street, next to the Ithaca Journal , in the
heart of downtown. The publications office is not compelled to
(move to a residential home, The university houses its graphic art
!staff, for example , on Maple Avenue , an area where zoning permits
Isuch- administrative use. With. better planning Cornell could have
imade more suitable arrangements for the relocation of its Modern
llndonesi�a Project and its publications office. It could have buil
(proper office space on campus in anticipation of the need to relo
Icate. It is currently building a multi; million dollar biology com
I
1plex. Any hardship caused by this board' s failure to grant a
variance is a hardship of the university' s own making, not of econ-
omic circumstances or unique conditions that render the two resi,
dences in Cornell Heights unfit for residential use. The residents
of the neigh borhood believe that these proposed conversions will
jbe injurious to the character of the neighborhood, and I ask the
(Board of Zoning Appeals to deny the university's request. Thank
you very, much-
"MR. GRENNELS`: I am Errol Grennels, I live on 121 Kelvin Place and
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; and I want to bring up one thing that hasn' t beenmentioned before
land that is that there are a lot of properties in my neighborhood,
1
at least I know of one in particular right across the street which
will become Cornell property, it is not presently Cornell property
f
Abut the present resident has willed it to Cornell or there is an
,
' arrangement whereby Cornell will become the owner of that property,
iWhen we talked with. Mr. Herbster the other night he did show us a
map in which he had Cornell proper shaded in green and Cornell ow ed
property shaded in blue and there was another color for fraternities
{ and sororities , etc. and I did notice that there were a few little
white patches on pall Creek, probably one of which is represented ly
Mr. Buyoucos and it is very - I know how it is with a color crayon
, and if there is one little white dot that is surrounded by blue,
i
leventually you want to color that in and if you don't live in the
ineighborhood it would be very easy to do . Well , all of this talk
about what is the law, I 'm not quite sure, but I do know that very
( clearly that it would be very nice for me to take my house which I
have lived in now two years, and I put in approximately $10, 000 .
I
lin various ways upgrading it, it would be very convenient for me t
f
rent it out as a multiple residence or to students or to some othe
Muse similar - however, I can' t do that because I 'm an individual arid
11 am bound by the zoning law. I see this as a very simple issue -
if Cornell acquires the house across the street and they are able
to turn that house into a dormitory or some of these other uses that
i
(have been mentioned, solely on the basis of the fact that they are
i
an educational institution and claim that they are exempt from any
laws regarding zoning, then it is clear to me that there is no way
i
,to prevent this neighborhood from disappearing, I mean, there jus
his not a - if you look at a map you will see an awful lot of blue
land very little white, My house - I ' ll tell you who surrounds me -
(on the one side I have a sorority, on another side there is a house
iwhich is rented out to students , I have two neighbors who are family
(houses . across the street is the house that will become Cornelhs
Iwith.in a few short years . The woman living there now is in her late
i
1801s Dowd the street there is a Prospect of Whitby which is a
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46 -
1
Cornell Cooperative . On Dearborn there are two other cooperative!
Ue area is not - when we say it is a delicate balance , it is very
ii
jdelicate and as I see it the issue is very simple. I have to obey
the zoning laws, why doesn' t Cornell have to obey the zoning laws?
! CHAIRMAN AMAN: Anyone else? Yes sir.
i
MR. VALENTINE: I am Joseph Valentine, a resident at 116 Kelvin
Place. I want to only say briefly that as a resident of the area
i
it has become my impression and it must be obvious to everyone tha
i
! Cornell must have a policy of acquiring all of the properties that
i
it can in the neighborhood. The only reason it must have that
policy is it intends to convert the use of the neighborhood at som
! point in the future. It seems to me our only recourse against tha
! kind of use is to enforce the zoning ordinance . If the University
i
! wants to go to court then it should go to court to extensionally
,laddress the main issue of whether it has the power to take over a
( whole neighborhood.
Il CHAIRMAN AMAN: Is there anyone else wishing to speak on this case
i
MS. EGAN: Why don't I save my rebuttal for the close of all of it
in the interest of saving you some time? If that' s . . .
' CHAIRMAN AMAN: My understanding is what I was going to suggest
lis that you make whatever remarks you want now in rebuttal and thelL
; present your case on the Indonesian House, providing everyone
! else . . . we have heard from everyone else.
lMRS. JENSEN: I 'm Esther Jensen and I live on Fall Creek Drive . I
J
! just wanted to say that Fall Creek Drive is on the walkway of whiclk
there is a map. Almost every visitor that comes to Cornell walks
down Fall Creek Drive and I shutter to think of any more traffic
land illegal parking and the things that go on there now are really
Ivery difficult to put up with so . . . it is a beautiful street and
the walkway makes it important. Thank you.
' CHAIRMAN AMAN: Is there anyone else who wishes to speak against
the variance?
IMR. BUYOUCOS: May I put these items in evidence? These are the
lqualifications and these are the statements made by the appraiser.
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l
: We were kind of rushed in deference to the hour. If I could do th t
; please . And there is just one thing more I 'd like to say and I
Ilthink it is very important for the record. I 'm sorry but I was
I;
1rushed. That is, I understand that this property 316, was acquire
An 1965. If so, then there is always that perennial question of t e
! self created hardship and I want this to be a matter of record.
' Cornell can't go acquiring properties knowing that there may be an
! inhibition on its use for other purposes. It acquired it for a
residential zone - if there is a hardship it was created by Cornell .
i
I believe it was 1965 and I believe it was purchased from a Mr.
k
, Hamilton. If I am wrong . . .
! CHAIRMAN AMAN: And in 1965 it was zoned residential?
i
!MR. BUYOUCOS: It was zoned residential . I think that ' s a very
i
Jmportant point. Thank you.
I
!MR. NAMETH: I am George Nameth, 118 Wait Avenue. The question I
;
would like to pose to the zoning board is that the future of the
building, if a variance is agreed upon, currently in the descripti n
of the proposed use by Ms. Egan the point was made that the proposEd
i
uses (unintelligible) use which indeed does affect and modify
the traffic and the ambiance of the neighborhood very little but i
! this appeal is granted, that is that the house can be used as an
office building, would there be any provision that would hinder
F
' Cornell at a later date, to convert into some other office use whi h
would entail much heavier traffic and pedestrian use without any
Gfurther appeal. In that case, if that is so, then many of the arg -
Iments in favor of the present change would be moved.
I
; CHAIRMAN AMAN: Thank you six. Ms . Egan perhaps you could respond
if your wish, and then present the next case . Why don' t you re-
spond first, at which point then we will call the next case for th
Irecord.
MS . EG,AN; Okay, fine. For those of you on the Board who may be
;
Il unfamiliar with what you hear about statute vs case law, I think
Ithe lawyers among you can agree with me that case law is law. Its
! not non-law. Just because it is not written in a statute book doe
i
not mean that it is not binding in this state, I realize that was
;
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Ila very dramatic statement that it was not in the law from start to
finish. It was not in the codified law but it is the law of this
ii
(: state.
l
( CHAIRMAN AMAN: The cases that you cited - are you saying that the
' did not involve situations where a zoning board then later record
; has something of the zoning ordinance itself to grab onto - something
that says , educational uses shall be exempt, something of that sor ?
IYou are saying there was nothing in those ordinances that the
li
federal courts credit to the common law exception?
IMS. EGAN: As a matter of fact, if I 'm not mistaken, in all of the
! cases it had been an instance in which we are talking about a resi
i
dential zone and the educational use was not permitted in that res -
I
idential zone that they still won out in the court case. I am glad
the New York Institute v. Le Boutillier was mentioned, I don' t be-
i;
1lieve it was any departure from the law having to do with the exem -
ltion of educational uses . No previous case was overruled in it,
i
( expressly or in any other way. In fact LeBoutillier reiterates some
of the very principles that we are concerned with right here . Quot-
ing
uo -
ing from one section of the case, the court said, "To be sure an
, educational use is , by its very nature, in furtherance of public
lmorals and general welfare and, as a general rule , may not be
, wholly excluded from a residential district, " In this city there is
I
Ino residential distract which permits Cornell University to do som -
1
thing. The permitted uses that are even close are in an R-1 by
i
special permit, a private School could be built. The Zoning Ordi-
finance defines a private school as being one at the secondary level
not the college level . In R-2 and R-U there could be a nursery
school or a day care by special permit only. The only zone in whi h
an educational use of this nature is expressly permitted is not a
residential zone , its the P-1 , instead, which, as you all know, is
( just the bounds of the original Cornell campus . T don't see this
as being parti:,cularly a planning measure for the inevitable growth
( of an institution such. as Cornell to say, okay, keep P-1 - it 's th
Jonly place you can go - when that was the original, the very origi al
icampus - dating back, with a couple of exceptions - probably requi -
flitions , dating back to over a hundred years . In fact, Ethel Nicho s
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1��, at the Planning & Development Board meeting last week told us that
! at the time that P-1 was picked as a designation for it , it simply
t meant tax exempt and sure enough on the map, the P-1 is used for
churches, cemeter s and high school and things s like that. I don' t y g g
think that anyone is suggesting that we can expand on the grounds
lof Ithaca High School or the cemetery or of St. John' s Church, all
�fof which are the only other ones zoned P-1 . So I will stand by
; that position that in fact the University has been excluded from any
residential zone in direct contradiction to the Court of Appeals
pronouncement in 1973 that as a general rule the educational use m y
root be wholly excluded from a residential district . I would also
( note that the Court of Appeals does indicate that some different
(` standards might well be applied in this case. It did happen to
deal with a special permit situation but Ithink. the principle is
!relevant to us before. It stated "factors bearing on the public
i
health, safety and welfare such as traffic hazards , impairment of
, the use, enjoyment or value of properties in surrounding areas and
I
deterioration of the appearance of an area which might warrant
denial of a special exception permit for a commercial use, ordinarily
will not suffice to deny an educational use, " Going on to the
'i
ispecifics of that particular case, the court, as a prelude to its
�iconsideration of a special agreement R special contract that had been
Ilentered into many years previously between this particular village
`land the college about its expansion and the size of it, said that it
'had not demonstrated a need to expand, I think by our testimony
tonight and more so by our testimony in front of the Planning Boar
lin the previous session, we have demonstrated that we do have that
(need to expand. The Assistant to the Provost here tonight can
testify that other locations have been sought, none .have been found ,
in the instance involving the University Press Sheldon Court' s
rehabilitation is in response to those pressures many of them
!from area residents , to provide for student housing. In fact , an
I
ladditional floor is being put on to Sheldon Court for that very pu -
i
pose. The idea that we do have to extend R we do have to house
those students and thus it 's creating the additional pressure on
loffice space for us . In the case of New York Institute v LeBouti lien
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; the Court then went on, after citing the fact that there had been
no demonstrated need for expansion, in this case, for instance - o
!;the main area of the campus it had built on only 1% of its land. 1° -
,;that is a very minute portion of its land. It also pointed out that
the village had not pursued a policy of excluding colleges from this
I
�larea and I point out the fact that , in fact, there were four campuses
within the boundaries of the village - four different institutions ,
that is . And therefore, they were not guilty of wholly excluding
i
an educational institution. The Court then went on to say that
!what was relevant to it was the previous agreement that had been
?hammered out between the village fathers, if you will , and the college
!in this instance. In the paragraph immediately before that is dis-
cussed whether or not decisions to expand or not to expand a college
!should or should not be before a zoning board or whether they should
Abe the province of college officials . It didn' t end up deciding that
;question because it had before it the agreement that had been entered
I
into between the village and college and I think that quite properly
!that decision and the portions of it that I have cited to you do back
up the previous case law in that they do not overrule anything - it
i
Irests squarely just on the fact of this agreement in this particular
case. There isn't an equivalent in the case before you. If anything,
II think a couple of the factors that were relevant in LeBoutillier
I
are before you. There is the demonstrated need to expand. There i
the fact that we 've been excluded from all residential districts an
that the P-1 zoning I don't think was a planning mechanism - it wasn' t
as if someone said, we are setting this area aside for you to move
into as a planning function. This was just the label that was put
n to the old original farm that turned into a campus .
HAIRMAN AMAN: When you say excluded from all residential areas ,
ou are saying the University is not excluded in its use for resi
ential purpose but they are excluded for other purposes?
i
S. EGAN: For their educational purposes they would be from any
ther zone . There isn' t even a section that says that the Universi y
Can be there by special permit, You've got to be a nursery school r
secondary school to even apply for that so I think, not only unde
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ly
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ithe LeBoutillier but under a whole line of previous cases - and
�athat is probably one of the reasons the exclusion arose in the fir t
! place in addition to the notion of providing a service in public
l
interest was so that there could not be exclusion from a resi-
! dential district - from all residential districts .
I�MR. WALSH: We are sort of slurring over the distinction between
lexclusion generally and exclusion from a residential district. Wh n
c
,you talk LeBoutillier, you talk about exclusion not really exclusi n
!from a residential zone , as I recall.
IMS. EGAN: I will quote you Peter.
I
MR. WALSH: Please do, I (unintelligible)
MS . EGAN: "As a general rule may not be wholly excluded from a
residential district ." and its on - this particular xerox that I
9
have is from the American Law Reports so I wouldn' t be very helpful
with a page number but it is towards the middle, or something like
Ithat.
CHAIRMAN AMAN: Does that mean, were they saying, in that case , that
whatever the University wants to do they are not going to let them
in that neighborhood or were they saying that they are excluded
unless their use conforms to the use that the neighborhood already
his zoned for? I mean - in that case were they totally excluded,
I
were they saying no to the university owned property or whatever the
university wants to do, whether or not it complys with the zoning
1
ordinance we' re simply not going to let them, or is the key to th t
I
case that the university did want to use the area for a use which i
Ipot authorized by the zoning and the court said that was alright even
Ithough it wasn't authorized?
S. EGAN: In that case the use would have been authorized by a
special permit . We do not even have the benefit of applying for a
pecial permit in this case .
HAIRMAN AMAN: So there was a mechanism in that case that authorized
the use.
iMR. WALSH: May I just call your attention to one paragraph. further
r
�hich says, after citing all of the things that may not be ordinari y
I
xcluded - that is a matter of course, but this is not to say that
1
i! 52
irestrictions may not be placed upon that use or that an educationa
I
jmay never be excluded from a designated area - citing the matter o
the Diocese of Rochester. I think this is both sides of this
; questions .
i
I, MS. EGAN: I understand what you are saying, that is why I am happy
pIto, as long as the time involved in it would be relatively swift,
!
to submit a much more detailed brief in which Diocese of Rochester
, can be discussed along with a host of other cases on this whole
notion of a blanket exclusion. I think that is what is before us
here, that it is excluded from all residential districts - that th re
is no hope as it were, but for a reliance on this . I think that i
the case of LeBoutillier, to try to get back to the question that
you were asking, Mr. Chairman, I think that they were saying that
the fact of this agreement disposes of the question for them entir ly
that that existed, they hint that perhaps had the college been
able to show that it had burst its seams, that a special permit might
have been directed to be granted to it but absent that showing, it
couldn't even justify going that far . There is no way that anyone
could say that Cornell University is occupying to of its lands . A
(this point it has plenty of room to do other things with, At the
�!Planning & Development meeting, I believe, Ms. Siskin, when asked
about some other spaces in it that were going up or being opened up
and asked, well had they been filled - her answer was , I think, 1112
times over". I don' t know what other testimony you want as to our
meed for space. Again, to answer Mr. Angell 's question, this is no
i
a matter of - oh, dear, we have some empty space, what shall we do
to fill it? But quite the opposite that we desperately need space
to put this as well as many other buildings - many other functions
which are expanding all the time. It is not as if everything had
remained static and that nothing else was growing on the campus but
I
or this one need to move the University Publications or Modern
11ndonesia. Things are constantly being moved around in order to
� ind space for their increasing demands and this was one of the pie es
hat didn' t fit back into the jigsaw puzzle when we tried to put it
( ack together again, so it has got to go outside the boundaries .
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MR. ANGELL: In other words, you are saying that indeed if you - i
!! this variance is granted or you go to the courts , or whatever, the
, you will use those other houses on Fall Creek Drive if the need
�I
arises?
i
SMS. EGAN: I would not rule it out.
!
MS. DE COMBRAY: Why is it necessary to move into residential area! ?
What ' s wrong with the business district?
MS. EGAN: We haven't found any other space. Mr. Chairman, if it
1would make it easier for the Board tonight, I am prepared to with-
draw the request for a variance and just stand on the request for an
interpretation as we read your charge under the code and under
, Section 81 of the General City Law which is the law which governs
this Board and says how you shall act and what you shall do .
CHAIRMAN AMAN: If you wish to make that request I - you can do
that . I don't know if that leaves us with any jurisdiction for
the case but . . .
MS. EGAN: That would then force you to decide the jurisdictional
issue, wouldn' t it?
MR. WALSH: Well no, without the request for a variance there woul
be nothing to interpret.
CHAIRMAN AMAN: That' s right .
� MS. EGAN: Well I disagree with you there. How do you reason that
ilWe are asking you to interpret the basis for the Building Commis-
` sioner' s denial to issue a Certificate of Occupancy. That was a
decision of his from which we appeal . I don' t think that the ab-
sence of the request for a variance should (unintell) to decide .
Part of your charge under the General City Law which is referred
i
to in your charge of the building code, is to review and determine
jetc. etc. all decisions of your chief administrative officer, whi h
in this case you have designated as the Building Commissioner, so
think_ that certainly does give you something to decide and review,
i
' namely his decision to deny it. I don't think you have to have th
' variance if you have an insight that I don' t, please tell me .
1
! MR. WALSH: I prefer to have you leave the request for a variance
I
stand at this point but . , .
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(! CHAIRMAN AMAN: We really have rather a complete record developed
W here . At this point, after hearing all the evidence , if you with-
' draw the request . . . . I would prefer if you simply left the case
as it is . As I understand it, you have made it very clear - you
f
applied for the variance because you felt you had to because that
was the mechanism which guides you before the Board and your posit o
is that the variance standard does not apply, that there is an
exemption for educational uses - educational institutions . You
are saying that that exemption is found in common law and the fact
that is is not. in the zoning ordinance itself does not deprive this
Board of power to recognize that common law exemption and based on
what that common law exemption you claim that this is an educati na
use - I think we will just have to grapple with that, and, as I sa ,
perhaps ask for the briefing on that exemption point - where it
comes from and whether or not a common law exemption affects this
Board at all - whether or not this Board needs something in its
! statute to be able to act.
iMR. WALSH: Without attempting to speak for the Board, I 'm concerncd
very much about the exemption problem and not only question the
iexi.stence of it but if you recognize the existence of the exempti n
in whole or part, by what standards you go about balancing the
interests involved. And 1 think that if you do recongize an
exemption, it's clearly not an absolute exemption.
MS. ELAN: Then it isn' t really a question of balancing interests
or looking at all the factors surrounding that particular use such
that it is an educational use,
MR. WALSH: I really don't know, This is the precise point that 's
got me hung at this point if we get to a point where we ask for
briefs, at least for at any rate, that 's the question that is
particularly bothering me,
MS, EGAN: Understood. Let me just, I hate to keep dragging this
( thing out but just let me say one final thing and I am not sure
whether it was Mr. Hoard or the City Attorney that said it to me,
! it may have been both in some sort of substance. In the first in-
stance, before the appeal was filed and I was questioning why we
�I
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! had to file an appeal at all , I thought well look at our memorandum
hof law - in fact this memorandum of law was submitted first, not
!s
; for the purposes of this Board but for Mr. Hoard' s and Mr. Shapiro ' s
'{ information in trying to reach determination which I thought they
1! should be able to reach without resort to a Board, simply in apply
!
ling it or not applying it - to give you an idea of the genesis of
this thing and at the time when they said no, I 'm going to have to
i
go to our Board, I believe what I was told in substance by either
' one or both of them was , well , the reason we want it to go to the
lBoard is that we want to get a handle on what all the parameters
fare of an educational exemption where they lie and this kind of
! thing and I can see that because it is not the City Attorney' s
) province nor especially the Building Commissioner' s to make a judg-
ment and I think this was particularly with reference perhaps to
! this case, Pall Creek, because that did involve the University Pub
lications , The words were, I think, get a handle on what all the
s
! parameters and limits were of an educational use, by going to the
1
pia and and having them look at the definitions in the case law and
; apply it to the use that you will be able to tell us about by havi g
6
your Director here and things like that. So, to then have someone
say, well , we don' t have jurisdiction, I 'm like Ms, DeCombray, I 'm
mystified too because now Ism saying, well , where do we go? We
have no resort and it certainly is not the way that Cornell Univer
;sity wants to do business to have to go to court every time it wants
to do what it considers it should be able to do and, in fact , has
,in the past been able to do without having to go this route ,
MR. WALSH: 1 fully agree with your concerns, not to belabor this
point but the precise question of what do you do if you go to
i
!court, what standards do the courts apply to inform their descretion
�- but how they make their decision as to what is educational use
�Iox what is permissible within the general category of educational .
�MS. EGAN: But remember, they are going to be looking at it from
,the standpoint of an Article 78 proceedings .
Io
�'IMR, WALSH: Well if that' s the case, we still have to have had some
Istandard
for the exercise of our discussion, it can't go (unintell . )
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and that ' s the point at which I 'm at sea. You know, assuming we
say there is at least a partial exemption from local zoning, or
l; common law or whatever the sources (unintelligible) come up with,
then how do we say that this will stand and this will not although
�i
they are being purely ad hoc?
E! MS. EGAN: I understand.
i
IIMR. WALSH: And I don' t see that in the cases I 've looked at so fa .
i MS. EGAN: Well I understand our concern which is why I feel m
�, y y y
I;
brief was my memorandum was a very short one - but I wanted to
; give you an idea of the range such as citing school bus garage ,
ii light industrial plant , conference center, stadium seats , things
like that - to give you an idea of how far some one might say appe 1
; for an educational use exemption might go,
+ CHAIRMAN AMAN: But doesn't that don't we have to put that in
l
!, context? Surely, one of those uses in a residential neighborhood
II
I don't know that those cases . . .
MS. EGAN: Those were all in residential neighborhoods . I wouldn't
, have cited them if they hadn' t been residential.
i
MR. WALSH: Many of them are highly distinguishable merely by the
I
fact that they are all school districts which are governmental en-
tities which is why I asked you in the first instance why you relied
! on that as a grounds because the government has got all kinds of
powers as an arm of the state. We have many cases of power of con
Idemnation. Cornell University clearly does not.
MS. EGAN: Okay, LeBoutillier, I believe, does speak to that in
making a reference it says , "And the cases apparently draw no dis-
tinction between public and private educational use ." So I think
i
, the answer there from the Court of Appeals , is that it would be
I
' identical based not only on what they have reiterated but also the
Iline of cases that they happen to be referring to in that particul r
instance because there are citations along with that sentence so I
don't think the standard is any different whether its a public
school system which, you know, as is rightly pointed out by Mr.
Orloff, is its own governmental entity. I don' t think that exists
Mfor you - to me to worry about.
( CHAIRMAN AMAN: Let me call the final case .
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BOARD OF ZONING APPEALS
Common Council Chambers
I' City of Ithaca, New York
October 6 , 1980
i
EXECUTIVE SESSION
I' PPEAL NO. 1322 :
�1The Board considered the appeal for interpretation or a use varianc
I
kor the property at 316 Fall Creek Drive. The action of the Board
�s as follows :
i
� e have been asked by Cornell University, appellant in the above
Laptioned case , for an interpretation or, in effect, a determination
bf whether certain uses which are characterized by the appellant as
tieing educational uses are exempt from the City' s zoning ordinance .
ornell has also applied for a use variance "as an alternative to
he relief requested." The Ithaca Board of Zoning Appeals operates
nder the authority of the Ithaca Zoning Ordinance , the Ithaca City
barter and the Ithaca Sign Ordinance . Nothing in this legislation
authorizes the kind of use exemption appellant claims in these pro-
i
Feedings . This is not to say that the applicable zoning ordinances
holly exclude or do not provide for certain educational uses . The
�rdinance, for example , establishes public use zones . It also allows
the Board of Zoning Appeals to grant special permits in certain cases .
�nd, of course, to the extent that proposed educational uses conform
{to the zoning requirements of an area or qualify for a variance under
he Ordinance, such uses are treated like all others . This Board,
owever, has no authority to determine whether any power outside of
�ts own enabling acts creates or authorizes the exemption claimed b
he appellant, Applying the Ithaca Zoning Ordinance and the Ithaca
ity Charter to the case under consideration, the Board finds as
ollows:
Appellant proposes to convert property which it owns at 316 Fal
I Creek Drive from a single family residence to a University Publ -
j cations Office. This office is intended to perform the editorial
work necessary to publish course catalogues , annual reports ,
brochures describing special programs and the like . No altera-
tion of the exterior of the building is planned. A staff of
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58
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XECUTIVE SESSION APPEAL NO. 1322 (_continued)
twelve employees is expected to occupy this property on a regul r
i
basis during business hours .
2. This property is located in the heart of a residential neighbor-
hood commonly known as Cornell Heights . This area is zoned R-2
and it limits occupancy to one and two family residences .
3. Appellant acquired this property with knowledge of the resident al
character of the neighborhood and applicable zoning restriction .
1. Except for a brief period when this property was occupied tempor-
arily by two persons from the University' s Admissions Office an
used as an office , the property was used as a single family
dwelling and was rented to Cornell faculty families .
S . There is no evidence that appellant can no longer use the property
I
in a manner that conforms with local zoning requirements .
There is no evidence that the appellant would suffer economic
hardship if the property is continued to be used as a residence
There is evidence that appellant's proposed use would adversely
affect the character of the neighborhood. It would depress
property values , it would exacerbate what is already a serious
I
parking and traffic problem, Given the extreme narrowness of
Fall Creek Drive, it would aggravate the existing congestion.
The property is not unique .
Jotion was made and seconded that the application for an interpreta
ion of the zoning ordinance to the effect that educational uses are.
xempt therefrom, or in the alternative, for a use variance be
denied. Vote: 4 Yes ; 0 No ; 2 Absent.
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j BOARD OF ZONING APPEALS
COMMON COUNCIL CHAMBERS
CITY OF ITHACA, NEW YORK
3
OCTOBER 6, 1980
i
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; SECRETARY HOARD: The last appeal is appeal number 1323 :
i
I Appeal of Cornell University for an in-
terpretation or a use variance under
Section 30. 25, Columns 2 and 3 to perm!
conversion of the residence at 319 Wait
Avenue to a research facility. The
property is located in an R-3a (residen-
tial) use zone in which a research facil -
ity is not a permitted use. The appellant
is claiming that interpretation of stat
law exempts the appellant as an educati n-
al institution from local zoning law; i
the Board of Zoning Appeals does not con-
cur
o -
cur with this interpretation the appellant
will ask for a use variance .
MS. EGAN: This is an instance in which there is an application made
Ifor a Certificate of Occupancy for an office known as the Cornell
Indonesia Project. Contrary to one news report that I heard that
i
it was a new Cornell Modern Indonesia Project, it has been with us
for twenty-five years , much to the credit of the University and
, the community, I believe. The appeal you would have before you an
I
I have also with me the Director of the Cornell Modern Indonesia
Project, Professor George Cahan, who can perhaps answer your ques-
i
( tions far better than I can about the actual use of it and I think
I
ewe can demonstrate that it is absolutely, clearly an educational
I
fuse. I understand - Bryant Robey is stall here? He is not. Yes ,
the is , okay. Bryant , if I am not mistaken, you had written a
! letter to Provost Kennedy, something to the effect that while we
are not happy about the proposed use at 319 Wait Avenue, its pur-
( pose is at least avowedly educational and in substance, therefore,
I
Jwe can't object and this is probably not the appropriate time to
task you whether you think its educational or not?
IMR. ROBEY: No. That is right, I wrote that , I should add to that
! though that I received great argument from my own wife for having
said that and all I can say is that since then I have talked with
, neighbors, leads me to believe that the people are just as exvrcis d
! about that as they are so I hope you will not . . .
MS . EGAN: I 'm not suggesting that you are not exorcised, what I a
60 -
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s suggesting is something that I think is Quite obvious about the
.i
program - that it is so purely educational . . .
CHAIRMAN AMAN: Can you very specifically tell us what you intend
jto use that house for?
; MS. EGAN: Why don' t I have Professor Cahan . . .
I
SMR. ROBEY: Mr. Chairman, I 'd just like to make the point that she
is Quoting my words as claiming it`s educational , I would just like
I
Ito have the record show that that doesn't necessarily mean that it
1
1 is .
SMS. EGAN: Okay, Bryant Robey does not necessarily mean what he
( says , how' s that?
i
CHAIRMAN AVIAN: I ' ll even let you go back on your prior deal , and
Jif you want to come up here and respond at the appropriate time,
you are welcome to but let ' s just take one person at a time.
MS. EGAN: Okay. Could we perhaps then - to answer your Question,
Mr. Chairman, have Professor Cahan come up here?
IMR. CAHAN: I am George Cahan, I am a member of the Department of
Government and I do direct the Cornell Modern Indonesia Project.
was prepared to make a long, eloquent statement but it is too late
Why don 't I just answer questions? Or, unless you would like a
short statement?
i
CHAIRMAN AMAN No , for purposes of the record I would like to know
precisely how you intend to use this residence, number of occupants ,
purpose of the use, what is it going to be for, hours that it will
be open, things of that nature.
IMR. CAHAN: You should be oriented, of course , to know that Indone is
is what Columbus was looking for when he found this country by mis-
take. We are not just a research but we are very much involved in
, teaching, we have regular seminars there. We have a research libr ry
which is quite central to what we are doing its been accumulated
by myself, Professor Anderson and others over a period of some
twenty-six years now. That's available to visiting fellows or gra u-
I
ate students , It ' s an integral part of the operation and it is tiEd
,in with the teaching seminars as well . There is also a publicatio s
- (unintelligible)
I should say there ' s aoffice, there is no publication phy
I
(sically emanating from this building but we do have editorial work
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61 -
under way there because we publish a journal, a regular scholar
ii
i journal devoted to Indonesia and we have published, I suppose , over
i,
it these years about a third of the scholarly studies undertaken in
I. this country - on the country of Indonesia. People would be work-
ing there during daylight hours and very often up to 10 - 11 o 'clo k
at night. Nature of work for scholars, graduatestudents using the
; library, dictates that.
CHAIRMAN AMAN: How many people normally?
IMR. CAHAN: We would have - I can break it down if you would like
we 'd have a maximum of thirteen or fourteen people making use of
it at any one time. That would include two professors, a visiting
professor , a couple of visiting fellows , a state department intern
that is sent here regularly to learn about Indonesia and then
, graduate students would be given desk areas to work, as well - ad-
jacent to the library. Is that enough information?
MR. ANGELL; How many parking places there?
MR. CAHAN: There is room for about four cars . We don' t anticipat
fusing spaces for more than three or four. One of the advantages
here is that we have a bus stop immediately opposite the building
land people can put their cars in the A B parking lot and come di-
to the building . Indeed it is much closer - it has the
i
advantage of course of being much closer to classrooms than where
we are now, much closer to Cornell Central library and it is also
much closer to where most of our graduate students people who are
finishing up and writing their dissertations live. The majority
lof them live at Hasbrouck.
I
CHAIRMAN AMAN: Where is the Indonesia Center now and what necessi-
tates the move?
(MR. CAHAN: It' s at 102 West Avenue, Itis an area surrounded by
1fraternities , It was originally a fraternity house and was made
2available for office space beginning in 19.55-56 . We have the same
facilities that I have mentioned to you lodged there now. Itis not
Ea building that is very well organized for that activity actually
the building on Wait Avenue would be much more functional from our
i
Istandpoi,nts..
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MS. DE COMBRAY: Is that all that is wrong with the building where
you are now?
I
MR. CAHAN: No, it ' s not just the fraternities . It is in a condition
of decay. We can' t use all of the rooms . We feel that the condi-
tion of the building warrants moving and moving fairly soon.
i
MR. ANGELL: Are you saying then that Cornell didn' t maintain the
building?
MR. CAHAN: I wouldn't put it that way. It was a pretty old build
j ing to begin with. We kept it going and Cornell kept it going for
twenty-six years which is, I think, not bad. If you should look a
i
the building I thank you could appreciate the pretty good job that
has been done of keeping it erect.
�3CHAIRMAN ALAN: What was the prior use of the building that you
propose to move the Center to, or what is the present use of the
building that you propose to move the Center to?
MR. CAHAN: My understanding was that it was inhabited by a Cornell
Professor and his wife they also let out a room, a small apartme t
regularly to a (unintelligible) there who had his own small
kitchen.
CHAIRMAN AMAN; And again, just for purposes of completeness, I take
it that the decision to move the Indonesian house to this particu-
lar piece of property, is not based on the inability to use that
1property for residential purposes but rather based on the Univer-
sity' s perceived need for a new place and their perception that
4
that particularly fits the bill?
� MR. CAHAN; We have to go to the University to find housing for us ,
yes. I wouldn' t say its too residential now because the last tena is
; tore out everything in the kitchen, including the kitchen sink.
MS. EGAN: Mr. Chairman we do have someone here that might be able
to speak to you on that subject,
E
jCHAIRMAN AMAN: Well, let's make sure we are finished on this topi .
s
� I, perhaps, shouldn' t have raised it, Are we clear on what the
house is for and what its use will be? Thank you.
' Ms . Siskin, I think it would be better if you spoke up here.
MS. SINMIN: Do you want to ask questions?
�t
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CHAIRMAN AMAN: Just for purposes of the record, again, I take it
�I
that the University' s desire to use this house for the Indonesian
(, project is based on their perception of that house being inadequat
1structure for this use. It is not due to the fact that they were
i
junable to rent that house to another University family or somethin
of that sort?
` MS. SISKIN: I 'd put it more strongly than that. It was based on
the reality that that was the only space available in which the pr -
Iject could be housed and the driving force behind re-housing them
, was the acception of the reality that the state of their current
i
; quarters is far from satisfactory and it was quite simply, that was
i
(unintelligible) kind of thing rather than searching for possibl
9
! uses for the space. It happened very quickly when I assessed the
need of the program.
MS. DE COMBRAY: What will happen to the space that is presently
I
occupied by the Indonesian project?
MS. SISKIN: The house will be torn down.
MS. DE COMBRAY: Was it originally a private residence?
i MS. SISKIN: I don' t know.
MS. DE COMBRAY: What kind of a house is it?
MS. SISKIN: It looks as though it might have been but I under-
stand that fraternity house originally - I don't know if it was
built for the fraternity but it 's more of a domestic structure tha
I
an office.
CHAIRMAN AMAN: Any further questions?
' MS . SISKIN: And I don' t know whether it is relevant to add, it
still is the only place that I know of in which the project can move.
CHAIRMAN AMAN: The only place currently owned by Cornell . Are
there any other questions? If not, Ms . Egan are you finished with
i
j your presentation?
i
MS. EGAN: I ' ll try to be brief and just for the sake of completeness
to mention that with this structure, as with 316 Fall Creek . . .
VOICE IN THE AUDIENCE: We can' t hear you.
CHAIRMAN AMAN: You' ll have to speak up,
I
MS. EGAN: With respect to this structure as with 316 Fall Creek,
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there is no change to the building itself or to the site , that we
! render it looking other than it presently looks although in order
to comply with access for the handicapped there will be a ramp that
I
11will be built on 319 Wait Avenue . There is no parking lot planned
i
` no additional parking spaces for automobiles will be forged out of
I
lawn or anything of that nature so it will continue to look like
s
the residence that it does right now. Do you have any other ques-
tions? I have gotten to hand to one of your members , I ' ll hand to
lyou Mr. Chairman - that is a more complete description of Cornell
! Modern Indonesia program, together with its occupants - things on
I
the nature of deliveries which will be probably as of the nature
s
lof 316 Fall Creek only mail those that will be using the building
! will be coming and going but most of them on foot or bus , which
already runs directly by the property.
' CHAIRMAN AMAN: Thank you. Is there anyone here who wishes to speak
, on behalf of the requested variance? (no one) Anyone here who
1wishes to speak against it? Mr . Orloff?
( MR. ORLOFF: My name is Neal Orloff and in deference to the hour
!! I' ll try and be brief, I would like to reassert our contention th t
s
! there is no blanket exemption from the Zoning Ordinance for educa-
i
�Itional institutions and I ' d also like to respond to the question
for the assertion that Cornell has made that Cornell has no land on
1w1iich to house these two uses . We are told that Cornell is burstilig
i
{ at its seams, that Cornell is an institution which has used every
square inch of its property, that Cornell has no place to go. I 'm
! told that Cornell is the largest land owner in the county. I 'm told
;
Itha:t Cornell has thousands of acres of unzoned and undeveloped land
, in the county, Cornell Heights can't possibly be asserted. It ca -
Inot possibly be asserted that Cornell Heights is the only place fo
Cornell University to expand, Indeed I would suggest that the Boa d
I, of Zoning Appeals ask Cornell what percentage of its land Cornell
I1has built on. I am told that that figure might be on the order of
1% . Indeed in the LeBoutillier case, th-e New York Institute of
i
� Technology vs, the LeBoutillier, the Court was faced there with th
( assertion by� the college that it would be cheaper to renovate an
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65 -
` existing residence rather than to build a new structure, and ex-
pressly turned down that argument as a valid basis for subordinate g
lvillage interest to the interest of the college. Apart from the
assertion that Cornell has no place to expand I 'd like to move
directly to the 319 Wait Avenue property. As I mentioned, we 've
argued that there is no blanket exemption for educational institu-
tions - given that there is no blanket exemption for Cornell to us
the property at 319 Wait Avenue as an Indonesian Center requires
,' that the proposal satisfy tests in the Zoning Ordinance for a vari -
ance. Cornell has asked for a variance and clearly again, each of
Ithe three tests in the Zoning Ordinance for the granting -of a vari -
ance are not met. First, the uniqueness test - is this unique par
Icel? There is, as you know, no evidence in the record which would
i
, support the findings that this parcel at 319 Wait Avenue is unique
The parcel is similar to other parcels in the area. Again, as Mr.
Aman has pointed out , Cornell appears to have dropped its argument
that there is any hardship associated with use of this property,
for any of the permitted uses. As has been pointed out , the prope ty
1has been used as a residence, the residence of Professor Lazar and
las you are aware, the Planning Department has made a finding that
iresidential units of this type are needed in this area. The third
test, apart from the uniqueness test and the hardship test is whetlier
ithis proposed use would be injurious to the neighborhood. Isaac
Kramni,ck will speak on behalf of the Civic Association fully to the
lin jury to the neighborhood that will result from this use . I 'd
( like to briefly touch- on a few of the aspects of that injury, agall
Ias a connection with the Pall Creek Drive property, the cycles of
! use of this area of this property at 319 Wait Avenue would be di
i
ferent as an Indonesian center compared to the cycles of use of a
residence. Moreover the pressures on the neighborhood from the use
as an Indonesian center would be much greater than that produced
by a typical family. Indeed the pressures of using 319 Wait Avenue
on the neighborhood as an Indonesian Center would be far greater
than the pressures put on the neighborhood by the proposed use of
the Fall Creek Drive house as a publications office. We are told
I
i
i
it
- 66 -
ii
! that there will be a library there and that there will be research
I
! materials there and there will be an influx of people using that
i
facility. We are told that there will be seminars there and last
i
! week at the meeting of the Planning Board we were told that the
i'
! seminars attract occasionally up to thirty people at one time .
That' s much greater than the pressures one would find from a typic 1
!; residential area and we are told that faculty and graduate student
i;
ii
,will have their offices . Indeed this house - this house at 319 W it
Avenue is a critical house . It is on the border between a residen-
tial area and the campus and there are just a few private residenc s
I
in the area. It ' s downfall would threaten the other residential u its
lin the neighborhood. And so, like with the Fall Creek Drive house
i
Ithis proposed use fails to satisfy each of, the three tests for
granting a variance and the Cornell Heights Civic Association re-
quests that you deny the request for a variance.
t
!CHAIRMAN AMAN: How would this come out with your balancing test
!that you proposed earlier for an educational use? Not that that
,
!applies but are you arguing that these adverse neighborhood char-
I I
lacteristics would, in fact, affect that balance if you used the
! other standard or, under the other standard, would you come to a
different result?
MR. ORLOFF; I would use the same standard here and I think one
could clearly conclude that the nature of the activity is more of
(the nature of educational than the nature of the activity on Fall
( Creek Drive, ,And so, for that reason, in the first instance , some
�1greater deference could be given to the University' s request. On
the other hand, though, the disruption of the community, as a result
�of the Indonesian Center, would be far greater I think, than in the
!case of the Fall Creek- Drive area and so , again, one would end up
i
with the denial of the request,
1CHAIRMAN AMAN: Any questions? Thank you Mr. Orloff. Mr. Kramnick.
�R. KRAMNICK: I 'm Arthur Kramnick, I live at 125 Kelvin Place and
I teach at Cornell . We know that the Cornell Modern Indonesian
Project is an educational enterprise . We, in fact, know it is a
orld famous educational institution, run by the most distinguished
i'.
E
67 -
of faculty. What is important to us is the principle ; conversion
of residential homes into University houses and offices. It is
lirrelevant to us what particular office the university wishes to
(; put at 319 Wait . We would be just as ap.gry if the university, in
ii
Mall its imperial grandeur, chose to put the Chaplain' s office ther ,
I
or the religious studies program. But let us get back for a moment
Ito review the history of that house and to see how Cornell has
, operated in the conversion of that house. The story will reveal ,
firstly, Cornell ' s arrogance and utter disdain for us as a residential
( neighborhood and two, it' s arrogance and utter disdain for the law
! of the City of Ithaca. The story begins in 1972 when the univers ty
I
! acquired the house. 319 was rented immediately to Professor and
i
IMrs . Lazar . Professor Lazar is a veteran with a war wound in his
legs which required in the winter he be able to walk closely to his
Il work - or walk. to his work which would be closely nearby. The loc -
jItion in our neighborhood was perfect, Indeed the Lazars lived at
0319 Wait quite happily and we were all very happy, inasmuch as they
{ anchored down the whole area with a stable family home . Well what
Ihappened? Did they want to leave? Was this house too large to re t,
�idid it have eighteen bedrooms that they couldn't heat as Cornell
claims is the case elsewhere? No, let me in fact, tell you what
did happen. Over a year ago, the Lazars in mid-winter, received ar.
eviction notice and were told to be gone by March lst. Not as Mr .
Herbster claimed the other evening, to bring in some new professor
who would then use the house as a staging area, he offered us the
(theory that the reason people indeed were evicted large numbers cf
eviction notices were sent out in the area - was, as he put it, be-
cause they discovered that they had been living there too long and
that, in fact, those houses were as residences , were intended to b
used by faculty who had just come to Cornell for a year or two, as
staging areas while they looked for permanent homes , We then said
Ito Mr. Herbs-ter, if that were the case - if Mr. Lazar was evicted
I
� because he had been living there since 1972 - for that principle
reason and we assume a new professor is living there this fall , 0
course that is not the case. Nor was , in fact, Mr . Lazar evicted
I
is
68 -
I
ii last year at this time in the fall , to put the Modern Indonesian
I
1! Project there - it wasn' t as Ms . Siskin says , a one-to-one thing - we
! needed the Modern Indonesian Project and there was that house . Mr.
�jLazar was informed over a year ago that he was being evicted, in
( fact, to put the Africana Center there . The Africana Center didn' t.
want to go there because it wanted to be on campus . Good for it .
i
Then he was told the Alumni House was going to go there and the
Alumni House didn' t go there and then finally the fit was made .
1
Professor Lazar was angry. So angry that indeed he took out the
kitchen that he had put into that house which is why there is no
( kitchen there now. He had put in $25, 000 . 00 into that house . He
was evicted. He felt angry that a commitment from the University
was to no avail . In its mercy, the University, it should be said,
! allowed him to stay until July lst, not in mid-winter . He was angry
we, the residents , are angry because Cornell has evicted a family
that wanted to stay in our neighborhood - to make way for offices .
And, of course, the City of Ithaca should be angry because all of
this was done over a year ago with you people knowing nothing about
� it, with Cornell paying absolutely no attention to the laws of the
! City which forbids them to do what they are doing. Let me turn no
to the particular house in question. The house - this particular)
critical one whose conversion would have catastrophic affects on t e
quality of life in Cornell Heights. It is one of only two houses
in that specific area inhabited by family, not by dormitories , room-
ing house or fraternities . A delicate balance exists with 319 Wait
and the house next to it on Thurston Avenue, and the owners of that
Thome are here and I believe they will speak.. These two houses next
Ito one another, hold down the anchor of family life across from
! Risley and Louie 's Lunch truck. If it goes and it is only a matter
x y
of time before the house on Thurston may as well sell and the Univ r-
Isity will gobble it up too . In addition the traffic situation at 319
+ Wait is extremely vulnerable. It is , as you know, sitting astride
! the main artery from the campus north to Triphammer. The house, its
I
entrance and its driveway are , in fact, at the very heart of the
deep curve that Waist takes at this point going down to the stop sign
i
'i
I
i
-
69
i
Ii
ilat Louie' s Truck. Students , bicyclists and walkers already make
for a serious traffic problem as cars swerve for that curve . Many
(' more students and bicyclists and cars will now be using that house
l
it if is converted. Well my final point is to repeat what others
( have said. Cornell must not be allowed to break the zoning laws a d
i
convert this into an academic building because it will mean the be -
ginning of the end of this neighborhood. The neighborhood was
( settled at the turn of the century and filled with fine homes , man
,
of them built by Cornell faculty. Over the years, through purchase
and bequest , Cornell has made deep inroads into the area but in
irecent years a kind of stable balance has been achieved. It is a
very unique and pleasant balance . There are fraternities, dormito ies
houses of Cornell professors, lawyers , apartments for struggling
graduate students , rooming houses , many distinguished retired Corn ll
i
faculty live there, it is housing for blacks and whites , for young
and old. But the balance is a very fragile one , for over it all
looms the power and wealth of Cornell which is claiming that it ha
the right , unilaterally, to do what it wishes with those homes ,
(Ieven if the City went to the bother three years ago of saying it
(didn' t. If Cornell can at will , simply by filling out a piece of
paper , or not even filling out a piece of paper, not being found out
+until the building code inspector finds out - if Cornell will , by
(simply filling out these papers , violate that commitment and conve t
family rental units it owns into classrooms , research centers , or
additional dormitories, then this unique neighborhood is doomed. If
ithis request be granted, how can any others be denied in the future ?
Once the zoning is broken the neighborhood will disappear just as
have the once lovely residential neighborhoods around other great
city universities . Look at the University of Pennsylvania, Boston
University, Harvard, Columbia, Berkley, they are surrounded by
rooming houses, to be sure, and we have sought to keep out private
rooming houses that violate the code now - that says only so many
residents per house and we have done that successfully. They have
been ruined by those and they have been ruined by expansionist
universities . So they are now surrounded, all those other great
i
I
- 66 -
that there will be a library there and that there will be research
( materials there and there will be an influx of people using that
f
facility. We are told that there will be seminars there and last
week at the meeting of the Planning Board we were told that the
seminars attract occasionally up to thirty people at one time .
That ' s much greater than the pressures one would find from a typic 1
presidential area and we are told that faculty and graduate student
will have their offices . Indeed this house - this house at 319 W it
!Avenue is a critical house . It is on the border between a residen
I
tial area and the campus and there are just a few private residenc s
lin the area. It ' s downfall would threaten the other residential u its
lin the neighborhood. And so, like with the Fall Creek Drive house
' this proposed use fails to satisfy each of the three tests for
rantin a variance and the Cornell Heights Civic Association re-
Ig g g
i
(quests that you deny the request for a variance.
I
'CHAIRMAN AMAN How would this come out with your balancing test
that you proposed earlier for an educational use? Not that that
I
!applies but are you arguing that these adverse neighborhood char-
acteristics would, in fact, affect that balance if you used the
other standard or, under the other standard, would you come to a
i
(different result?
MR. ORLOFF; I would use the same standard here and I think one
'could clearly conclude that the nature of the activity is more of
;the nature of educational than the nature of the activity on Tall
Creek Drive, And so, for that reason, in the first instance , some
;greater deference could be given to the University' s request . On
(the other hand, though, the disruption of the community, as a result
�of the Indonesian Center, would be far greater I think, than in the
+case of the Fall Creek. Drive area and so , again, one would end up
'with the denial of the request.
CHAIRMAN AMAN: Any questions? Thank you Mr. Orloff. Mr. Kramnick.
i
I� R. KRAMNICK: I 'm Arthur Kramnick, I live at 125 Kelvin Place and
I teach at Cornell . We know that the Cornell Modern Indonesian
Project is an educational enterprise . We , in fact, know it is a
;world famous educational institution, run by the most distinguished
i
i
4 .
I
67 -
iof faculty. What is important to us is the principle ; conversion
liof residential homes into University houses and offices. It is
lirrelevant to us what particular office the university wishes to
, put at 319 Wait. We would be just as ap.gry if the university, in
Tall its imperial grandeur, chose to put the Chaplain' s office ther ,
or the religious studies program. But let us get back for a momen
to review the history of that house and to see how Cornell has
operated in the conversion of that house. The story will reveal,
firstly, Cornell ' s arrogance and utter disdain for us as a residential
neighborhood
esiden ial
neighborhood and two, it ' s arrogance and utter disdain for the law
! of the City of Ithaca. The story begins in 1972 when the univers ty
; acquired the house. 319 was rented immediately to Professor and
Mrs . Lazar . Professor Lazar is a veteran with a war wound in his
legs which required in the winter he be able to walk closely to his
work - or walk to his work which would be closely nearby. The 10C -
tion in our neighborhood was perfect, Indeed the Lazars lived at
1319 Wast quite happily and we were all very happy inasmuch as they
anchored down the whole area with a stable family home . Well what
happened? Did they want to leave? Was this house too large to reit,
did it have eighteen bedrooms that they couldn't heat as Cornell
claims is the case elsewhere? No, let me in fact , tell you what
did happen. Over a year ago, the Lazars in mid-winter, received a
eviction notice and were told to be gone by March lst. Not as Mr .
Herbster claimed the other evening, to bring in some new professor
wh.o would then use the house as a staging area, he offered us the
jtheory that the reason people indeed were evicted - large numbers Cf
eviction notices were sent out in the area - was , as he put it, be-
cause they discovered that they had been living there too long and
that, in fact, those houses were as residences , were intended to b
used by faculty, who had just come to Cornell for a year or two, as
staging areas while they looked for permanent homes , We then said
to Mr. Herbs-ter, if that were the case if Mr. Lazar was evicted
because he had been living there since 1972 - for that principle
reason and we assume a new professor is living there this fall , O
course that is not the case. Nor was , in fact, Mr. Lazar evicted
- 68 -
1
�1last year at this time in the fall , to put the Modern Indonesian
; Project there - it wasn' t as Ms . Siskin says, a one-to-one thing - we
i
Ineeded the Modern Indonesian Project and there was that house. Mr.
3
Lazar was informed over a year ago that he was being evicted, in
i
fact, to put the Africana Center there. The Africana Center didn' t
, want to go there because it wanted to be on campus . Good for it .
Then he was told the Alumni House was going to go there and the
Alumni House didn' t go there and then finally the fit was made .
Professor Lazar was angry. So angry that indeed he took out the
kitchen that he had put into that house which is why there is no
kitchen there now. He had put in $25, 000 . 00 into that house . He
was evicted. He felt angry that a commitment from the University
was to no avail . In its mercy, the University, it should be said,
( allowed him to stay until July lst, not in mid-winter. He was angry
we, the residents , are angry because Cornell has evicted a family
that wanted to stay in our neighborhood - to make way for offices .
And, of course, the City of Ithaca should be angry because all of
this was done over a year ago with you people knowing nothing about
it, with Cornell paying absolutely no attention to the laws of the
City which forbids them to do what they are doing. Let me turn no
to the particular house in question. The house - this particular)
critical one whose conversion would have catastrophic affects on the
quality of life in Cornell Heights . It is one of only two houses
in that specific area inhabited by family, not by dormitories , roo -
ing house or fraternities . A delicate balance exists with 319 Wail:
and the house next to it on Thurston Avenue, and the owners of that
home are here and I believe they will speak. These two houses next
to one another, hold down the anchor of family life across from
� Risley� and Louie 's Lunch truck. If it goes , and it is only a matt( r
of time before the house on Thurston may as well sell and the Univ r
` city will gobble it up too . In addition the traffic situation at 19
Wait is extremely vulnerable. It is , as you know, sitting astride
� the main artery from, the campus north to Triphammer. The house , i s
entrance and its driveway are , in fast, at the very heart of the
i
' deep curve that Wait takes at this point going down to the stop si n
f
69 -
i
at Louie' s Truck. Students , bicyclists and walkers already make
�i
for a serious traffic problem as cars swerve for that curve . Many
I` more students and bicyclists and cars will now be using that house
Is
it if is converted. Well my final point is to repeat what others
!
1have said. Cornell must not be allowed to break the zoning laws and
convert this into an academic building because it will mean the be
ginning of the end of this neighborhood. The neighborhood was
settled at the turn of the century and filled with fine homes , man
lof them built by Cornell faculty. Over the years, through purchase
f
Viand bequest, Cornell has made deep inroads into the area but in
Irecent years a kind of stable balance has been achieved. It is a
i
very unique and pleasant balance . There are fraternities , dormitories
1
houses of Cornell professors, lawyers , apartments for struggling
graduate students , rooming houses , many distinguished retired Cornell
faculty live there, it is housing for blacks and whites , for young
and old. But the balance is a very fragile one , for over it all
' looms the power and wealth of Cornell which is claiming that it ha
Ith.e right , unilaterally, to do what it wishes with those homes ,
even if the Citywent to the bother three ears ago of saying it
Y g Y g
didn' t. If Cornell can at will , simply by filling out a piece of
paper , or not even filling out a piece of paper, not being found out
I
until the building code inspector finds out - if Cornell will , by
simply filling out these papers, violate that commitment and conve t
I
family rental units it owns into classrooms , research centers , or
additional dormitories, then this unique neighborhood is doomed. If
this request be granted, how can any others be denied in the future ?
I
COnce the zoning is broken the neighborhood will disappear just as
have the once lovely residential neighborhoods around other great
city universities . Look at the University of Pennsylvania, Boston
University, Harvard, Columbia, Berkley, they are surrounded by
i,rooming houses, to be sure, and we have sought to keep out private
I
rooming houses that violate the code now - that says only so many
,residents per house and we have done that successfully. They have
been ruined by those and they have been ruined by expansionist
universities . So they are now surrounded, all those other great
I
70 -
�i
; universities by tax-exempt soul-less waste lands because no one ev r
' saw fit to say "no" to unnecessary and inconsiderate university ex
I
I1pansions . We hope that you will say no , that you, this appeals bo rd
Twill say no, as spokespeople for Ithaca. If the University doesn' t
i
jlike that, then they can go to court to get someone else to say ye3 .
i
But you are here in Ithaca to enforce our laws and let the Univers ty
; take it elsewhere if it wishes to violate those laws . Thank you.
CHAIRMAN AMAN: Anyone else wishing to speak against the requested
variance?
s
MR. CUTTING: My name is Jim Cutting, I work at Cornell , I own the
house at 536 Thurston Avenue, next door. I have all the concerns
that Arthur Kramnick expressed - we certainly esteem the Cornell
( Modern Indonesian project - it ' s undoubtedly a great organization.
We 've only been in town for two and one-half months . When we put
a bid in on our house, we had a neighborf and the neighbor is gone
We thought we were entering into a residential neighborhood and
there are only really four houses involved on here. There is a
cluster of four houses tucked in between Balch Dorms , Risley Dorms
and Zeta psi next door. And we are deeply concerned as Bryant Rob y
i
sand other people have mentioned about some sort of balance . We thillk
that the residential character of the neighborhood, this particula
jsmall portion of it would be harmed - we don' t know in what ways i
would be harmed, it is hard to think of the Cornell Modern Indonesia
project harming anybody deliberately or even Cornell harming anybody
deliberately but we are deeply concerned about the neighborhood
ewe indeed think that since we bought into a residential neighborhood
i
that we ought to have residential neighbors ,
( CHAIRMAN AMAN; Anyone else wishing to speak against the variance?
i
Mr. Robey, I didn't mean to cut you off before, I just wanted to do
these things
SMR. ROBEy; I have nothing to add.
i
( CHAIRMAN AMAN: Ms, Egan do you have anything further to add?
i
MS. EGAN: Yes I do. ,lust briefly on two points raised by Mr.
Orloff. He first suggests that Cornell owns vasts amounts of
property to which it has not expanded and he made reference to my
i
I 1
i
!
- 71 -
f statement that Cornell was bursting at its seams . I do not believ
that this Board would have any difficulty in understanding that th
�l Modern Indonesian project, or for that matter, the University Pub-
lications Office, why they could not go to the wilds of Arnot Fore5t
dor to lands best suited to agriculture located in Freeville . What
is relevant is that the areas which are suited to things like the
i
Modern Indonesia project or the University Publications Office are
heavily built up upon and the University does need such contiguous
areas to expand to. My second point has to do with Mr. Orloffs , I
i
( think, inadvertent representation from New York Institute vs
� LeBoutillier case. He said that in that case something to the effect
that the Court had rejected the notion that it was a (unintelligible)
which said well its cheaper to renovate something that already exi is
than to build something new. I think the portion of the court cas
lin dealing with that said "the insitute contends however that it i
more feasibly economically to purchase the Holloway estate" this
jwas land in the particular, "and to renovate the existing structu es
( for its teacher education program than to undertake new con3tructi n
jon its main campus . It also contends that certain aspects of the
planned teacher education program make separation from the main ca -
I,pus desirable. " And this is the portion I 'd like to emphasize.
i
"There is force to the argument that these judgments should be mad
i
by college administrators , not zoning boards of appeal or courts . "
iIt does then go on to say "but at some point, probably not definable
with
efinab e
with precision, a college ' s desire to expand, here by the path of
lleast economic resistance, should yield to the legitimate interests
iof village residents ." It goes on to mention "The village has , in
the past, acceded to the institute ' s incorporation of additional
I
++contiguous properties into it,"but then went on to say, okay, here
`that contract that they had with th_e grillage is relevant and pro-
I
ceeded to then decide the case on that basis . So I think if anything
f
the case says the opposite thing - that the questions of expansion
for whether or not you need to may well be best left to the college
(rather than to a Board of Zoning Appeals . The court at that point
(declined to make a judgment as to where the exact boundary line
I(
l
I
- 72 -
Ij
! might lie and instead turned to the fact that it had already been
":. done for it there was an agreement between the two of them which
Thad been enforced.
; CHAIRMAN AMAN: Thank you.
! VOICE IN THE AUDIENCE: May I just say one thing? She is arguing
f,
I! that Cornell should profit from its own mistakes by letting those
I! buildings run down and then bull doze it over . . . (unintelligible )
i
! CHAIRMAN AMAN: I think we have the case in hand. Hearing nothing
further we will adjorn to executive session. We will reconvene at
I
I; some point. You are welcome to stay when we reconvene . Otherwise
I� if a decision is reached it will be sent out in the mail .
I! MS. EGAN: Mr. Chairman, may I just ask you something? Would you
I�
i
handle the decision that you - handle the decision making on the
cases you've heard tonight in the order in which they were pre-
,
sented to you in other words , the sign things first or would you
handle the cases first of those who wish to wait around afterwards .
; CHAIRMAN AMAN: Well, whatever order we take them up in, which is
f
whatever the Board chooses to do, we do theme all and then reconven
so it really wouldn't save . . .
iMR. WALSH: Although essentially, under the general city law provid s
that we have, I think, two months in which to decide. I 'm not sug
, gesting that we will.
! MS. EGAN: I 'd wring your neck if you did,
r
I
i!
i
i
it
,i
I
i
i
I
I
f
73 -
i
BOARD OF ZONING APPEALS
COMMON COUNCIL CHAMBERS
CITY OF ITHACA, NEW YORK
i
I' OCTOBER 6 , 1980
I!
EXECUTIVE SESSION
N
' APPEAL NO. 1323 :
�i
IThe Board considered the appeal for interpretation or a use varian e
; for the property at 319 Wait Avenue. The action of the Board is
as follows :
I� We have been asked by Cornell University, appellant in the above
i
captioned case , for an interpretation or, in effect, a determinati n
i
of whether certain uses which are characterized by the appellant a
being educational uses are exempt from the City' s zoning ordinance .
Cornell has also applied for a use variance "as an alternative to
; the relief requested. " The Ithaca Board of Zoning Appeals operate
blunder the authority of the Ithaca Zoning Ordinance, the Ithaca Cit
jCharter and th.e Ithaca Sign Ordinance. Nothing in this legislatio
i
jauthorizes the kind of use exemption appellant claims in these pro-
ceedings . This is not to say that the applicable zoning ordinance
1 wholly exclude or do not provide for certain educational uses . T e
fOrdinance for example, establishes public use zones . It also allows
the Board of Zoning Appeals to grant special permits in certain cases .
J And, of course, to the extent that proposed educational uses conform
{ to the zoning requirements of an area or Qualify for a variance unler
the Ordinance, such uses are treated like all others , This Board,
however, has no authority to determine wl-Lether any power outside o
its own enabling acts creates or authorizes the exemption claimed
by the appellant. Applying the Ithaca Zoning Ordinance and the
Ithaca City Charter to the case under consideration, the Board finis
I�
as follows ;
� f s ,
Appellant proposes to convert property which it owns at 319 Wait
jAvenue from a single family residence to a building that would house
the Modern Indonesia Project, a research: Icenter for Indonesian
studies , The proposed use of this property would be largely the
same as the Project 's use at its present quarters . These facilities
R
are on campus and being abandoned due to 'their age and current state
i
I
fl
i
- 74 -
EXECUTIVE SESSION - APPEAL NO. 1323 (continued)
i
�i of disrepair and deterioration.
A research library and a seminar room are proposed for the ground
ii
+! floor. In addition, offices for two Cornell faculty members and two
visiting fellows are proposed. It is also proposed that the edi-
torial work for publication of a semi-annual scholarly journal as
well as monographs be carried on at this address. Finally, a numblar
of graduate students are expected to use the library and desk spac s
1 to write their doctoral theses and the Project regularly trains on
U.S. State Department official every year who would also have desk
space in the building. We make the following findings of fact with
regard to this case :
i
Ill. This property is located on the edge of a residential neighbor ooc
i
commonly known as Cornell Heights . It is in a R-3a zone in which
li the kinds of uses proposed for this property are not permitted
2 . Appellant acquired this property with knowledge of these zoning
restrictions and u to now has used this property as a faculty
` � o P P P Y Y
f
residence, a use which fully conforms with the existing require-
ments
equir -ments of the Ithaca Zoning Ordinance.
3. There is no evidence in this record to indicate that appellant
could no, longer use this property as a residence .
4 . There is no evidence that a conforming use of this property would
cause the appellant to suffer economic hardship.
15 . The property is not unique .
I6. There is evidence that the character of the neighborhood would
be adversely affected by the insertion of a non-residential us
entailing extended and irregular hours in a residential neigh-
borhood.
i7 . The property in question is part of the interface between the
Cornell University, campus and immediately adjoining residential
neighborhoods . Location of office, library, and seminar facili -
ties in an area that has hitherto been exclusively residential
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i� advances this interface and undermines the character of the
neighborhood.
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EXECUTIVE SESSION APPEAL NO. 1323 (continued)
Motion was made and seconded that the application for an interpre-
tation of the zoning ordinance to the effect that educational uses
are exempt therefrom, or in the alternative , for a use variance in
appeal No. 1323 be denied.
Vote : 4 Yes; 0 No; 2 Absent.
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SECRETARY HOARD: Appeal No. 10-2-80: Appeal of Bern Furniture
Stores , Inc. for a variance under Sec-
tion 34. 6-A-1 to permit the retention
ii of the existing sign at 120 W. State
Street in a B-3 (business) use district.
j The existing sign exceeds the total area
j permitted.
ilIs there anyone here to present this appeal? Would you please come
jforward?
�R. MOSS: Mr. Chairman, my name is Michael Moss , I 'm the President
of Bern Furniture Stores and I come without any legal representatio .
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bn June 24, 1975 Mr. Edison Jones issued a permit for us to erect a
(sign on the front of our premises at 120 W. State Street . We have
een advised that this sign is too big for the lineal footage of th
�uilding -
CHAIRMAN AMAN: How big is it?
R. MOSS: The sign inspector says that we are - we have a 32 ' buil -
'ng and I 'm talking of the top of my head - I therefore , allowed 48
quare feet and the sign, I believe, is 90 square feet. I would
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Like to repeat what my version of a sonario that took place in 1975
he Sign Company that erected our sign brought to the sign inspecto
rawings of another building from another store that we had in
nother town - Oneonta, New York, which I believe is in the file
fight now and asked the inspector if he could erect that sign on
his building in Ithaca, New York. The sign said "Bern Furniture".
e was given permission to erect the letters BERN, he was told that
t was not within the City Ordinance to put up the rest of the
Letters. However if we applied for a variance that perhaps we could
ut up the rest of the letters. At that time, at a great deal of
xpense, we did put just the letters BERN and, I believe, at a sub-
equent date we were refused permission to put up the rest of the
ign. Now we were then advised some three or three and one-half
ears later that we have to take down the sign and this , of course,
ould be at a considerable financial burden to the Company because
f we take down the sign which is on the face of the building it would
estray the entire face on the top of the first floor through to the
op of the fourth floor and probably require an entire new facade.
e certainly have every intention of being law abiding within the
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,province of good judgment, but inasmuch as we were issued a permit ,
jI can see no reason why we should have to take it down. Therein
p
lies the whole case .
MR. WALSH: Mr. Moss , can you tell us how it is that removal of the
Isign would destroy the facade of the building?
�MR. MOSS: It ' s complete aluminum building - it, you know, it 's aro nc
the corner here - a complete aluminum front over the marque and to
take the sign down - behind it - we've affixed this sign so as to
cover something which is not aluminum behind it or some other
material. It was painted over an old sign that had been there from
previous owners and previous tenants .
R. WALSH: Was the facade up there at the time that the sign that
,is now there, was hung?
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R. MOSS: Yes and our sign covers that.
�R.
R. WALSH: I guess I am still losing something.
MOSS: If you take this sign down - behind it is all yellow
aterial - I don't know what it is .
R. WALSH: There ' s another sign?
�R. MOSS: Yes - well I 'm not sure whether it says anything or whether
mother sign had been up there which our sign covers over the area.
R. WALSH: So when you say it will destroy the facade, you mean
he appearance - but it will not physically require the removal of
the entire sign?
R. MOSS : I believe it will physically require the removal because
we 'll have holes , etc. in what is now a solid piece of material -
�ou know - or it gives the impression of being solid.
R. ANGELL: That merely requires repair of the area behind the sign
of the entire face of the building.
R. MOSS: If we could get the same material .
R. ANGELL: Were you aware of the Zoning Ordinance at the time
�ou put the sign up?
R. MOSS: No, I personally was not aware - I sent the sign install( r
o as most people do - to city hall to get permission to erect a
ign. I would like to have permission to sign the back of that
icture which may be a very unusual request, Mr. Chairman - but theie
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fare - the expression "a picture is worth a thousand words" - I
`contest the view of the sign from that particular - that picture was
taken from right in front of the sign - not from across the street
�land gives the impression that it is bigger than the all outdoors -
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which it is not . The sign does go - or the building does go up
four stories and it' s - to our way of thinking - in good taste.
Had we been denied permission in the first place we would have
erected a different sign.
MR. ANGELL: But you were allowed to erect this sign at that time
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1but you knew that the expiration date on the zoning - then you had
Ito change the sign at that time?
MR. MOSS: No, we were issued a permit to erect this sign and were
told that we couldn' t put up the rest of the letters that go with
it - namely "E U R N I T U R E".
MR. WALSH: Which would have constituted a second level hung be-
neath the existing sign?
MR. MOSS: Well - I wouldn't believe it shows on the picture - I can
!only just see it from this distance - but there is a marque in front
Iof the building - we were going to have a three-dimensional sign,
IB E R N on the wall and E U R N I T U R E out in front of the marque.
Under no circumstances , to my knowledge, were we ever advised that
within two years or three years we would have to take down the sign .
That would be - that ' s ridiculous - we wouldn' t have put it up.
,MR, ANGELL: When did the Sign Ordinance go into effect, Tom?
SECRETARY HOARD: The facts as Mr. Moss has pointed them out are
correct as far as the files show. They did apply for a permit -
Ithey were issued a permit on the basis of the documents they sub-
mitted. The current Sign Ordinance was in effect at that time and
somewhere, I don' t know how to explain it, I wasn't here then - but
somehow a sign got put up that was larger than what was permitted.
MR. WALSH, Mr. Moss , have you made any estimates or obtained any
estimates as to what it would actually cost to take down the exist-
ing sign and cover the spot that would be left under the sign?
MR. MOSS: I have brought a man up but I haven' t got the figures yet .
I wouldn't know what it would cost. We have already - to be honest
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with you - we've done some leg work - thinking about what we were
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going to do if we were made to take this down but it just doesn' t
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!seem fair that we should have to take it down after having been
;issued a permit. Maybe I 'm landing a little harder than maybe some
isof you think I should land - but I somewhat resent the correspondence
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which I have received from the City-authorities in the City which
lindicate that our sign man handed a picture of another - of a sign
!which you have in your file - from another city - of a building which
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�Iwas 65 feet wide and confused the person who signed the permit
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because - how could that be - because the sign is only erected a
block from city hall here - all you have to do is go over to look
land see that our building is 32 ' wide . I can' t understand the im-
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plication even - it really bothers me - we were merely trying to
( show the size of the letters which are drawn to scale and asking
Ifor permission to put those letters on this building, which, of
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course, the size of the building should be very obvious.
MR. WALSH: If the original permit application does indicate the
actual dimensions of the sign itself, do you know?
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SECRETARY HOARD: The permit says that the total square footage of
+ the sign is 92 square feet.
MR. WALSH: One more question, if I may.
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iIMR. MOSS: Surely.
MR. WALSH: Will you indicate to us what is the schedule on which
you depreciate the value of that sign?
IMR. MOSS: No, I can't off-hand. I would assume five years - it
would probably be depreciated which is the amount of time it has
Ibeen up. However, when you have to replace it with something else
it is a little bit different.
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MR. WALSH: Okay I understand that - thank you.
CHAIRMAN ARAN: Thank you.
! MR,. MOSS: Thank you Mr. Chairman.
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I� CHAIRMAN AMAN: Is there anyone here who wishes to speak in favor
ii of the proposed variance? (no one) Is there anyone here who wis es
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!( to speak against it? (no one) I 'll call the next case please.
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BOARD OF ZONING APPEALS
COMMON COUNCIL CHAMBERS
CITY OF ITHACA, NEW YORK
OCTOBER 6 , 1980
j EXECUTIVE SESSION
APPEAL NO. 10-2-80
r
he Board considered the request for a sign variance under Section
34 . 6-A-1 to permit the retention of the existing sign at 120 West
State Street in a B-3 (business) use district . The existing sign
exceeds the total area permitted.
J�R. WALSH: I move that the Board grant the sign variance requested
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1lin appeal 10-2-80, for a period not to exceed two years from this d te .
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S. DE COMBRAY: I second the motion.
VOTE: 4 Yes ; 0 No; 2 Absent. Granted for two years .
INDINGS OF FACT:
1 . The existing sign is 92 square feet ; the Ordinance limits the
maximum area for a sign on a building of this frontage to 48
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square feet.
2. The sign was put up by the owner after seeking and obtaining a
sign permit from the then Building Commissioner of the City of
Ithaca.
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3. Sign permit was erroneously granted.
4 . The Sign Ordinance enacted in 1972 granted to then non-conformi g
Isign an amortization period of seven (7) years. We conclude that
this petitioner should be entitled to the same amortization
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period inasmuch as he did ask and obtain a permit which was
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�i erroneously granted through no fault of his own.
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BOARD OF ZONING APPEALS
COMMON COUNCIL CHAMBERS
CITY OF ITHACA, NEW YORK
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I OCTOBER 6 , 1980
; SECRETARY HOARD: The next appeal is appeal number 10-3-80 :
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Appeal of J. Richard Agard, President
of J. P. Gallagher Co. , Inc. for a
variance under Section 34 .4B to permit
! the retention of the existing sign at
415 North Tioga Street in a R-3a
(residential) use district. The exist -
ing sign projects greater than eighteen
(18) inches above the plane of the wall
below.
SMR. AGARD: Mr. Chairman, my name is Richard Agard, I 'm President
of J. D. Gallagher Company. I would like to just make a few remar s
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labout our sign. I think there is a picture in captivity somewhere -
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I ' d like to say that the sign has been up about thirteen years - w
;wouldn' t consider it unsightly or out of keeping with the neighbor-
hood or with the building. The problem here is that the design of the
'building, especially the front of the building, and the setback fr m
Ithe sidewalk are such that we are limited in the type and style of
sign that we can use. At the time that the sign was installed we
felt that the post type sign was about the only way that we could
do it. As I understand the Sign Ordinance, any free-standing sign -
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which you can see that ours is - must be at least five feet from the
building and if it is less than five feet it is considered a build-
ing sign and, as such, it can project only, or not more than 18"
from the building. We are caught in a "catch 22" situation - we
cannot in any way make our sign conform to the Ordinance. Our
present sign, on the post , is 413" from the main part of the build-
ing - from the front of the building - and approximately 20" from
the enclosed stairway which you can see in the photo. The only way
that we could install a sign which would conform would be to install
(a sign which would be way up high over the doorway which, in my
opinion, would be very unattractive and really impossible to see.
lWe need a sign which people can readily see from the street becaus
frequently we have people from out-of-town who are looking for our
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loffice. This is very important to us and will create a hardship for
,us if we are forced to remove the sign. That is my presentation.
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,CHAIRMAN AMAN: Any questions .?
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�AR. AGARD: As I said, the configuration - and I have a bunch of
photographs if you would like to see them - but you have one , right?
IMR. WALSH: We have one that indicates the placement of the sign.
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MR. AGARD: That' s better than what I have - actually. The doorway
!which we are required to use - we are on the second floor - projects
out 3 or 4 feet, I would suspect - from the front of the building and
because of that a large )part of the post - as one can see - is covered
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�by shrubs and bushes and partially hidden as one walks or drives
north by this projection you can see a little bit of it in that
photograph. There just doesn't seem to be any way —there is no
`front of the building for us to put a sign on because of this pro-
jection.
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CHAIRMAN AMAN: And it is impossible to be five feet from the
building?
MR. AGARD: There is no way. Someone mentioned at the Planning
Board that we could perhaps set the building back - but that would
be rather difficult to do. I think he was probably being facetious .
So we ask that we be able to be allowed to keep the sign.
MR. WALSH: Is the area of the sign itself in conformity with what
ever the requirements are? We are talking only about placement?
SECRETARY HOARD: It is over-sized but there is no indication here
as to how much over-size.
R. AGARD: I will comment to that if you want me to.
R. WALSH; Please do.
R. AGARD; I believe that we are allowed five square feet and our
sign is 5 . 19 - so it ' s awful close . It ' s not quite a rectangular
sign. You could measure it another way and be slightly under but. . .
CHAIRMAN AMAN: To make sure I have my numbers right - if you count
the distance from the enclosed stairway you are just twenty inches
from that rather than the usual eighteen which is required, am I
right?
ZR. AGARD: That' s not quite the right interpretation. Your figure
are correct except that because this sign is on a post it is consi-
dered and is less than five feet from the building, it is considere
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�an attached or a building sign. I don't know why but that 's the way
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fjthe order reads . And, as such, it cannot project out from the face
jof the building any more than eighteen inches .
IR. WALSH: One more question - is the face of the building being
`measured from the internal face or - we seem to have several we are
talking about - there is a stair entrance, there is an insert and
�lthen another section out about - looks to be about two feet from th
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(sidewalk. Do you know what edge they are measuring from in that case?
R. AGARD: Well , I 've got if we measure from the front of the
A
building back in - not the projected stairway- it is 413" and it ' s
fight on as far as it can go - insofar as sidewalk is concerned.
The distance from the stairway which you can see there, is twenty
inches .
R. WALSH: Projects twenty inches from the edge of the stairway?
R. AGARD: Yes it's twenty inches away, in other words .
�R. WALSH: Do you have two inches in which you could move it back
(Closer to the building?
R. AGARD: That' s not the problem. Maybe Tom could address that.
hat doesn't solve the problem.
ECRETARY HOARD: The problem is that they put this feature in the
Sign Ordinance and I don' t know what the reason was but if a sign i
ounted on a pole and it is within five feet of the front of the
uilding it is considered a building sign and then if it projects m )re
han eighteen inches from the building it is illegal - so I don't
now whether the idea was to prevent people from getting around the
rojected sign or by putting things on poles or what the idea was
ehind writing the Ordinance that way but this is what happens is
that . .
IR. WALSH; My question is, eighteen inches from the face of the bu ld-
'ng but it doesn' t define how you measure the face of the building.
f your face is irregular . . .
ECRETARY HOARD: Well it' s the surface on which it is mounted as
ong as that is past of the building and not a special appendage
�esigned to get the sign up.
R. AGARD: To simplify your question, I think the only way that
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!physical sign could be made to conform would be to take it off the
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°post and attach it way up over the doorway - which would be about -
1well it is pretty high - it is a high door - there is a skylight
11so it would be ten feet maybe.
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CHAIRMAN AMAN: Flat over the doorway or would it be sticking out?
MR. AGARD: Well you could put it flat and it would then be only a
one-sided sign but then it would be legal because it would project -
�the sign is about four inches thick, so it would be sticking out
four inches . That would be "legal" but it would be horrible. I
mean - it just would look terrible and it wouldn' t help us but -
just to make - to clear the air about what would be legal - that
(probably would be legal - I 'm not sure that there is enough room -I
II 'm not even interested actually - but no there wouldn't be enough
room. There is no way that sign - on the post - no matter what we
did to it - because of the way the language in the Sign Ordinance
is .
CHAIRMAN AMAN: Thank you very much sir .
R. AGARD: Okay.
CHAIRMAN AMAN: Is there anyone here who wishes to speak on behalf
of the proposed variance? (no one) Anyone here who wishes to speak
against? (no one) Hearing nothing further we will go on to the
next case.
+ EXECUTIVE SESSION
I
The Board considered the request for a sign variance under Section
34 .4B to permit the retention of the existing sign at 415 North
ITioga Street in a R-3a use district. The existing sign projects
greater than eighteen (18) inches from the building.
MS. DE COMBRAY I move that the Board grant the sign variance re-
quested in appeal 10-3-80 .
CHAIRMAN AMAN: I second the motion.
OTE: 4 Yes; 0 No; 2 Absent Granted
FINDING OF FACT The unusual configuration of the building creates
,serious practical difficulties under the Ordinance.
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BOARD OF ZONING APPEALS
COMMON COUNCIL CHAMBERS
�V CITY OF ITHACA, NEW YORK
l; SECRETARY
OCTOBER 6, 1980
HOARD: The next appeal is appeal number 10-5-80 :
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Appeal of Mr. M. E. Patterson for a variance
under Section 34 . 8 and Section 34 . 3 and
Section 34 . 15B to permit the retention of
existing signs at 221 N. Aurora Street in
B-la (business) use district . The free
standing sign projects over the sidewalk
and within ten (10) feet of the street rig t-
of-way. The "Flying Horse" roof sign exte ds
greater than eighteen (18) inches above th
plane of the wall below.
IIs there anyone here to represent that case?
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MR. PATTERSON: Mr. Chairman, my name is David Patterson, I am Mr.
iPatterson's son, manager of Patterson Service Station. In regards
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to the first sign - the Flying Red Horse - which is currently erected
on the roof, we have found out that if we take that sign down and
Iput it on the face of the building, then it will be perfectly legal
and we 'd be very willing to do that - so that really isn't a probl m
Ias we see it now we just weren' t aware when we put it on the roof
that it was in violation of the Ordinance- so with that sign, we
will put that on the face of the building. With the second one
that overhangs the sidewalk and the street right-of-way. We feel
that there is a great need for that sign because our building is
removed some thirty feet from Aurora Street and Buffalo Street - i
sits off of the road. Without this sign out where people can see
it, they would have no idead what was there , it could be a vacant
lot, a candy store, whatever. We are blocked off from view from
Seneca Street, and State Street by the Arcade which sits - well al
of the buildings are pretty much even with the street and we are
removed from it. You come down Buffalo Street hill , there are
several homes there and you can' t really see that we actually have
a business there, The only visible means we have is that sign that
hangs out over the street. There really is no other place that we
could put that sign all of our business is done with automobiles
or trucks and we need a lot of driveway space, naturally. There
really isn't another spot where we could put this sign. If we wer
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to put it on the building it just wouldn' t be able to be seen from
the street or from approaching traffic. If we were to put it over
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'!our gas pumps - again - the gas pumps are removed from the street -
�ithey are pretty much blocked off by the surrounding buildings .
CHAIRMAN AMAN: And what would the problem be if you put it some
place between where it is now and the gas pumps?
MR. PATTERSON: It ' s all driveway. Our gas pumps are probably -
well it' s on an angle - you approach it from either Buffalo Street
e
or Aurora Street and we are kind of on a corner and we face - like
the middle of the intersection and if we were to move it back off
there - it would sit squarely in the driveway and that would remove
essentially one approach area from the gas pumps - there is just no
enough room for even an import car to maneuver at that point .
R. ANGELL: Tom, is the size of the sign legal?
SECRETARY HOARD: Yes it is .
R. ANGELL: What would happen, Mr. Patterson if you swung the sign
around? Instead of facing this way - it went this way on your pole .
ow much would that . . . .
R. PATTERSON: If we brought it so the sign was over our portion
�of the driveway away from the street?
NIR. ANGELL: Right.
R. PATTERSON: I don' t really know how visible it would be I
on' t think if you would stand up on the corner - I don' t know if
you might catch, a portion of it - particularly like the corner of
Seneca and Aurora - I don't believe you would be able to see the
hole sign. Mr. Schnock, when he addressed the Planning & Develop-
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ent Committee last week, spoke to a similar matter and he stated
e felt there was just no other spot that we could put the sign and
e suggested that we would be able to keep it.
R. ANGELL: Is that the problem, Tom, that it extends over the
idewalk - is that it?
�ECRETARY .HOARD; That ' s the problem with the Mobil Sign.
R. ANGELL : Right, And he has agreed to remove the one from the
oof and put it on the face of the building,
SECRETARY HOARD; That 's right.
�R. ANGELL: How prohibitive in cost would it be to move
that post
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,toward the sidewalk a little and swing the sign around?
( MR. PATTERSON: I don' t really know - we've never looked into it,
jthis sign has been in there for - since the late 1940' s - in the
same spot and the sign - we don' t own the sign, we rent it from
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Mobil Oil Corporation, who rents it from a private sign company so
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we really haven' t even thought about that, to be honest with you.
MR. WALSH: Dave, do you have any estimate of what percentage of
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your clientele is regular clientele - people who come in on a
regular basis to your station opposed to those who merely stop in. . . ?
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R. PATTERSON: I would say it is probably, as far as Igas and oil,
daily, it is probably 60% regular maybe 40o from out-of-town,
� e do an awful lot of business with students and student' s parents
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who come to visit and if we didn't have the sign a lot of them - I
think when they first come to town - probably would not realize it .
� e were initially, until they had gotten used to the town. Sometim
II think it is probably closer to 50-50.
�HAIRMAN AMAN: Okay. Any further questions? Thank you Mr. Pat-
erson.
R. PATTERSON: Thank you.
HAIRMAN AMAN: Anyone here who wishes to speak on behalf of the
�ariance request? (no one) Anyone here wishing to speak against
t? (no one) Hearing nothing further we will call the next case.
EXECUTIVE SESSION
�he Board considered the request for a sign variance under Sections
4. 8 , 34. 3 and 34. 15B to permit the retention of existing signs at
21 N. Aurora Street in a B-la use district. The free-standing
�ign projects over the sidewalk and within ten (10) feet of the
treet right-o£-way. The "Flying Horse" roof sign extends greater
Than eighteen (18) inches above the plan of the wall below.
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S. DE COMBRAY: I move that the Board grant the request for the
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.a) free-standing sign and to (b) deny the requested variance to
erect the flying horse above the roof lane.
R. WALSH: I second the motion.
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VOTE: 4 Yes; 0 NO; 2 Absent Motion carried.
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FINDINGS OF FACT:
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Ii (a) 1 . This sign could not be moved in order to comply with the
'f Sign Ordinance without interferring with traffic flow in
the gas station or without significantly decreasing the
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visibility of the sign.
p (b) 1. A variance isn' t necessary for the flying horse sign in
view of the owner' s agreement to put it on the facade of
the building.
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BOARD OF ZONING APPEALS
COMMON COUNCIL CHAMBERS
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CITY OF ITHACA, NEW YORK
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OCTOBER 6 , 1980
!SECRETARY HOARD: Before I announce the next case , is anyone here
jfor 122 Linden Avenue? It ' s the last scheduled case and it was
�jwithdrawn by the appellant until next month, so if anyone is here
!for that - there is no need to sit through the rest of these cases .
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(Okay, the next case then is appeal number 10-6-80 :
(! Appeal of Dr. Robert Baker for a vari-
ance to permit the retention of the
existing sign at 408 N. Tioga Street
in a R-3 (residnetial) use district .
The sign projects greater than eighteen
(18) inches from the face of the build -
ing.
Is there anyone here on that case? (no one appeared) Alright , the
next case is appeal number 1321 :
Appeal of Orson Ledger for an area va i
ance under Section 30. 25, Columns 4 ,
10, 12 , 13 and 14 to permit the addition
of eleven efficiency apartments to th
li building at 318-322 West State Street
in a B-2a (business) use district. T e
property now has fifteen apartments plus
commercial space ; the proposed new ap rt-
ments would be in place of the commer-
cial uses. The property is deficient in
required off,-street parking, the maximum
permitted lot coverage is exceeded, aid
! is deficient in minimum required side
yards and rear yard.
MR. TAVELLI : My name is Paul Tavelli , I am the attorney for Orson
! Ledger. Mr. Ledger is the owner of 318-322 W. State Street - it' s
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know as the Goodyear Building . I think most of you - or I think
Tom has a picture of the building itself. For a number of years -
I think it exceeds twenty-three years , this building was used by
�jthe Goodyear Company for parts and service and for repair of motor
( vehicles . As most of you remember, as I remember, there were a
number of car repair sales and service areas in downtown Ithaca.
'i
Where the Ramada Inn is there was an Oldsmobile repair shop, Finne
Motors , where the Woolworth' s building is therec: was a Ford garage
throughout downtown Ithaca there were auto sales and auto service
I� areas. For a number of reasons all of these particular businesses
have gravitated out of the City of Ithaca. I think basically be-
cause of the great need for parking areas for this type of busines .
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- 90 -
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(!Now as I said, we believe the building was constructed sometime
'!around the second World War. It was used by Goodyear for at least
,i
{twenty-five years. About two years ago Goodyear moved away from
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;downtown Ithaca, This particular area has been vacant now for over
two years . It 's an "L" shaped building - there is about 8 ,000 plus
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!square feet now vacant in this particular building on the ground
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jfloor. The upper floor contains six one-bedroom apartments , nine
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efficiency apartments and two rooms with baths so there is about
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`fifteen living units already there. But my client has the whole
downstairs area which is now vacant and it has been vacant except
for a small automobile repair business which is there now - has been
f
;vacant for almost two years . He started a business of his own there
and that did not succeed. This building has been for sale for a
number of months I think for over a year now - the building has been
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;for rent for a number of months now he has not been able to rent it
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or sell it. Now this is an area variance I am seeking - it is not a
!use variance that Mr. Ledger is seeking and without going into detail
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11 think we all know that our burden isn' t quite so great when we are
(!trying to change an area variance, we are not trying to change the use
10 as I understand it , tomorrow Mr. Ledger could move in some sort
of retail department store or some business of that nature that
((generates a lot of traffic and a lot of automobiles into that build-
ling .
uil -ling . He has not been able to that particular building is really -
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(was built for an automobile repair business and an auto repair ser-
fvicing business . He hasn' t been able to find any tenants for any
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type of a commercial venture . Now Mr. Ledger . . .
CHAIRMAN AMAN: Excuse me , Mr. Tavelli - how many tenants live the e
presently?
lMR. TAVELLI: Fifteen, correct? There are fifteen living units .
SMR. LEDGER: Sixteen.
IMR, TAVELLI : Sixteen? Okay, there are sixteen living units .
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!CHAIRMAN AMAN With sixteen tenants?
MR. TAVELLI : Okay, there is one person to each apartment , am I
correct Orson?
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�MR. LEDGER: No , there are some harried couples in the side up ove
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;the store itself - there are some married couples in there.
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'MR. TAVELLI : So there is approximately twenty - shall we say, in
Iftotal , people residing there?
MR. LEDGER: I would say about twenty people total , in the building
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!right now.
MR. TAVELLI : Sixteen living units and I think -
iSECRETARY HOARD: Could you identify yourself for the tape Mr.
Ledger?
MR. TAVELLI : Okay, that is . . .
MR. LEDGER: I 'm Orson Ledger.
MR. TAVELLI : And as I think you all know, Mr . Ledger has got to sh w
!some practical difficulties - he does not need to show hardship but
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II think even in this particular instance when I 've evaluated his
!situation, he can show the criteria for a use variance - he can
'show 1) hardship. The premises has been for sale - he has not been
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able to sell it - he has not been able to rent it . This downstairs
area that used to be Goodyear, is totally and absolutely worthless
Ito anyone now and Mr. Ledger has wrestled with this situation for
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just about two years now and the only solution that he has come up
iwith is to put some living units in the downstairs area. Now as t e
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law requires us - we wouldn't just need to show hardship, we have to
show some unique circumstances . Now, of course, you wouldn' t want
!every single person in this neighborhood coming in with the same
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type of proposal . Basically this is a unique building - it ' s an
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unusual building it was built for automobile sales and automobil
service - it' s a garage that you are not going to have a deluge of
people in this B-2a area coming in and seeking the same relief.
!want you to remember that we are going to a less restricted use - we
are not seeking to put an automobile repair shop in a residential
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1neighborhood, we are looking to put in residences in a business
II neighborhood and, of course, as you all know - the third criteria
� in any zoning proceeding is that the character of the neighborhood
will not be adversely affected. Well I submit to you - number one
Mr. Ledger already has residential people there so it isn' t going o
�ladversely affect the neighborhood, in fact , it ' s going to improve
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� hte neighborhood. You've got a garage there that, as I understand
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it, Mr. Hoard is not entirely happy with - there has been a garage
jthere for twenty-five years but apparently the Building Department
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isn' t happy with the residential area being so close to a garage
area where torches and flamable materials are used and in fact , Mr .
Hoard has , on a number of occasions , asked Mr. Ledger to do something
about this . Now before Mr. Ledger invests a great deal of money
�he has decided to get rid of the garage , get rid of the commercial
repair activities and make this entirely retail and residential.
(CHAIRMAN AMAN: How many parking places can you provide - given the
driveway that you have there?
jMR. TAVELLI ; Okay, there are a number of . . . .
CHAIRMAN AMAN: If you have twenty people there now you are talking
about adding eleven efficiency apartments . . .
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IMR. TAVELLI : Let me tell you first of all - a survey that Mr. Ledger
made at my request - I said - what type of people do you have there?
Find out how many people there own automobiles . Four automobiles
out of sixteen units that are there now. This particular type of
dwelling mostly there are people on Social Security, S. S. I . , which
�is another type of federal social security, people that ride the
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bus because the bus goes by these are people that live in low
income dwellings, rent here is about $130. 00 a month, they are not -
Ihe doesn' t cater to students in this particular dwelling - mostly
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folder people. The place is deficient in side and rear yard and lot
coverage but obviously the large problem is parking. Mr. Ledger
_
;can, as we figure it, as the architect figures it - can supply a-
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Inother ten parking spaces in front there. As you can see, on the
_
map, a "L" shaped dwelling , I think if you don't I have archetectur 1
drawings here it is an "L" shaped , . .
CHAIRMAN AMAN; How many are there now? Ten in addition to what?
�R. TAVELLI;There are no parking areas there now at all . Do you
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want - as you can look on the map here - this is the "L" shaped
building here . This is the area where cars pulled into the garage -
(there are large overhead doors where my finger is pointing in the
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"L" shaped portion. Obviously with dwelling units we can utilize
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tithe old entrance area to Goodyear for parking and we figure we can
ut ten parking spaces in that area there in the well of this "L"
,shaped structure, so as I understand it, although thirty parking
Iispaces may be what is required we can supply ten. Mr. Ledger is
labsolutely convinced that ten will be sufficient. You have got to
!remember that Mr. Ledger could, tomorrow, rent this - if he could
rent it to some sort of retail venture and you would have all
kinds of necessary - all kinds of automobiles there, so we take the
position that residential , in this particular case, requires less
automobiles than a retail type venture would - could generate.
That is one of the problems why Mr. Ledger had - been able to rent
this particular dwelling is there just aren' t any parking spaces
there to put any kind of an automobile repair shop, any kind of a
garage in there, so basically we submit to you that practical dif-
ficulties abound in this particular type case .
CHAIRMAN AMAN: What is the parking situation in the neighborhood
in general?
MR. TAVELLI : Okay, there is the parking lot which is almost across
the street is it not, Mr. Ledger? It is called the City lot - it
is the one right behind the fire station there. There is a city
parking lot almost directly across the street. The rest of the
( parking on State Street, of course, is metered. There is some par -
ing on the side streets . Of course, overnight parking is your
basic problem with respect to your residential but with the type o
individual these again are efficiency apartments , mostly one per-
sone type units -• elderly people or people that want to utilize
the City bus service. We' re just convinced that parking is not going
to be a. problem of any kind and we've got a unsightly area that' s
been empty for two years - it can't be rented and no one wants to
rent that type of structure - the City isn' t happy anyway with
!having automobile repair businesses and residential areas in the
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same building as I understand it this was this way for twenty-five
years or more so now is the time to make a change. If Mr. Ledger
has to make a change, the only change that he can make and possibl
rent is to turn this particular area into residential - there
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1 is nothing else that he can do with this particular building.
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MR. ANGELL: Do you have any plans as to how this area will be u-
tilized?
; MR. TAVELLI : Yes . I have some architectural drawings here which
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shows the "L" shaped building as itself. We are not going to
. utilize the whole downstairs area - there are 8 ,000 square feet .
Mr. Ledger at this time , anticipates eight efficiency apartments
on the first floor. They are designated thusly he is going to
leave some area in front for parking and storage and a small area
lin front that is right on State Street - leave that retail . He
may be able to rent a small shop or something - that fronts on Wes
State Street but all of the area Goodyear sets a tremendous area
ifor storage of tires and automobile equipment . . .
MR. ANGELL: Then it' s not eleven units?
IMR. TAVELLI : It ' s eight on the first floor and there is room for
two upstairs .
MR. ANGELL: That ' s ten.
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1MR, TAVELLI : Ten and apparently as I understand it , there is one
unit that is already there that has been there long before Mr.
( Ledger purchased it, that the City had no record of. Is that cor-
rect Orson? That apparently - obviously Mr. Ledger bought this a-
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lbout four years ago - apparently there is a unit on the second flo r
jthat doesn' t show in this diagram that was already there when he
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bought it and has been there and when he came in with this the
City said - we have no record of that unit even being there.
MR. ANGELL: Could we see that?
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MR. TAVELLI: Yes and I have a number of copies here .
MR. WALSH: Is it the case that the entire first floor is now open
garage area?
MR. TAVELLI : It ' s all open and Goodyear - well you see, retail -
ias I understand it had offices and space and the result was garage -
� the entire store so its all commercial - all was at one time
Goodyear .
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MR. WALSH: Within the area that is now designated as garage - on
this diagram - which had been used by Goodyear for repair and stor
age of automobile parts , approximately how many automobile bays
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ii exist there?
is
MR. TAVELLI : Orson you can better answer that than I can.
MR. LEDGER: There are five there presently - we are planning to
take at least one out probably two. One I was going to put a
I; P Y g g
j unit in and the other two I was going to take out one more and . .
with the shop and then kind of play it by ear to see what I could
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do with the other two bays - perhaps take them all out - rent them
for office space or something.
MR. TAVELLI : When you use the term garage, you don' t mean garage
jfor repair of cars do you?
MR. LEDGER: No.
MR. WALSH: So the area that is designated on this diagram with
! legend: garage - is intended to remain as a storage area for auto-
mobiles?
iIMR. LEDGER: I have an antique car - a couple of them which I park
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iin there now. Yes .
MR. WALSH: Are yQu counting the area in that garage as part of th
Iten spaces that you are adding?
MR. LEDGER: One of them.
IMR. WALSH: Sorry?
MR. LEDGER: One of them.
MR. WALSH: One of them and you have space for two or three cars iii
the area that is now marked (unintell . ) ?
Mr. LEDGER: Yes .
JMR. WALSH: So conceivably you could add two more parking spaces
yin that garage area, boosting your total parking to twelve with th
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lexisting
floor plan that you've got here? Without taking into ac-
count your antiques?
iMR. LEDGER: Well if we took the antiques out, yes .
,MS. DE COMBRAY: Where are the entrances to these apartments?
MR. LEDGER: At the rear of the building.
MR. TAVELLI : They are all in the rear, where you see the doors .
SMR. LEDGER: The entrances to the other apartments are all the sam
j - in the rear and on the side.
iMS. DE COMBRAY: And is that onto an alley?
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- 96 -
MR. LEDGER: Well I wouldn' t say it was an alley. It is around th
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aside of the building .
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MR. ANGELL: What 's in back of the building?
!! MR. LEDGER: Houses on Seneca Street - back yards of those houses .
MR. TAVELLI : Mr. Ledger does happen to own all the houses in the
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�I rear also, but the entrances to the second floor - some of them ar
already in the rear, isn' t that correct Orson?
1 MR. LEDGER: Yes, absolutely.
I CHAIRMAN AMAN: Just going back to the first part of your presen-
tation, will you speak to what efforts Mr. Ledger has made to ad-
vertise the available space?
- w have you had
MR. TAVELLI : Orson, why don!t you speak ho long v y
this , number 1 , for sale?
MR. LEDGER.: Well we 've had it for sale for about two years - had
it for rent for a little longer than that.
I CHAIRMAN AMAN: You've listed it with Realtors and . . .
i� MR. LEDGER: There is a sign in the window with my home phone and ny
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M office number. Probably a third of the Realtors in the City have
it listed. They,lve showed it several times they showed it this
morning to some people from out of town. Paul also has a letter
that one of the tenants wrote I don't know whether . . .
MR. TAVELLI; Right. We talked about whether we should bring all
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fifteen tenants, up here to say that its a decent, economical place
j to live . I have one letter from, one of the elderly tenants that
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preferred not to come, but I would like to have it marked as an
exhibit. It basically says that she is happy with her living ar-
rangements there and would not be opposed to having more living
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units there rather than putting in an automobile repair shop or
some sort of commercial , so I 'd like to have that marked and con-
sidered. Basically, in summary, we just feel , and I strongly fee
that there is not only practical difficulties here , there is hard-
ship. This building has been vacant and it looks loke it will
continue to be vacant because there is not any need for a) auto-
mobile sales and service in that particular part of town or b) an
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other type of commercial venture that could go in down there . We 've
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- 97 -
got 8 , 000 square feet and I think there is a crying need in this
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community for inexpensive, yet safe, one-room apartments for some
one who would normally live in some sort of rooming house , obvi-
ously Mr. Ledger has to construct these in accordance with the
Ibuilding codes and get a building permit and everything has to be
s
done in accordance with the fire regulations and size regulations
so obviously we are going to have, when this is done, some clean
inexpensive living units for someone who wants to take a bus right
up to Cornell and get back. It does not and cannot - either get
in some sort of government housing or cannot afford some of the
more expensive dwelling units in the City of Ithaca.
MR. WALSH: Is it correct that the existing use of repair shop
co-existing in the same building with residential units is not out
of compliance with the code? In other words , the two are still
r compatible even though there may be some difficulties?
MR. TAVELLI : As I understand it , Tom can answer that -
SECRETARY HOARD: What was the question?
MR. WALSH: Is these an existing violation by the fact that you've
got residential and garage repair functions in the same building?
SECRETARY HOARD: Yes there is.
MR. WALSH: Is it the city code or fire safety or what?
SECRETARY HOARD: The State Building Codes . It ' s a mixture r the
State Building Construction Code does not permit the combination
jof a garage, repair garage in a residential structure.
MR. TAVELLI: So its been a violation for at least twenty-five
years obviously or at least until the city adopted State Construc-
tion Codes .
MR. LEDGER: Goodyear was there twenty-seven years. Before that i
was a different company that ran the same type of business there .
� MR. WALSH: I 'm frankly concerned about the parking situation. I
i acknowledge what you are saying about the fact the people now
( residing there, in the mai.
n, do not seem to have automobiles . But
II am not certain that that necessarily constitutes - but if we can
regulate it very precisely -, is there any possibility of adding part
jof the space you have now designated as garage into one area that
- 98 -
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!i you are counting as proposed parking area?
MR. TAVELLI : I guess it ' s possible but it would only add space
!; for a car or two and you are talking about parking cars inside -
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you know, you could get just a couple or three cars in there.
Obviously Mr. Ledger can' t do it - anything about the parking -
the building is there, he has only so much room to work with - all
I can say to you is that better to have it residential than commer-
cial
omme -
cial - which we feel that commercial would generate a lot more
automobiles than residential .
MR. WALSH: I appreciate that - I 'm merely exploring the possibil-
ities. Adding three to ten is a 30% increase so . . .
MR. TAVELLI : It ' s possible, I guess that you could get three in
but . . .
CHAIRMAN AMAN: Is the number eleven concrete? Is it possible to
have fewer units than eleven?
MR. LEDGER: We could put any number.
CHAIRMAN AMAN: Are you economically r do you feel that that ' s an
economic number that you can't go below or , . . ?
MR. LEDGER: Well the building is there, I 'm being taxes on it , I
am paying insurance on it -- and I wanted to utilize as much of it
f� as I could, The old saying goes a half a loaf of bread is better
than none I guess but . . .
MR. TAVELLI : But I guess we 've got to put in all the mechanicals
and the heating system and the plumbing that he figured at least
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ten units would be economically feasible but I don't think it
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would pay Mr. Ledger to put in four units there just in one corne
of the building if he is going to add the plumbing, heating and
electrical service and then go to the bank for the financing I
think he could have put in a few more, obviously, and obviously
he had to make a decision it looks like there would be room for
double that amount if you wanted . . ,
MR. LEDGER: Pretty close.
MR. TAVELLI: To fi.11 up the entire first floor with apartments ,
so why exactly ten and not twenty
j MR. LEDGER: Well, I kind of thought I 'd leave the front open for
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�g
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Ii more retail business if it came along in the near future . The
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�! rear of the building is not suited for any retail business because
I
'i there is no exposure at all any where unless a bird happened to
fly by - and might see it but other than that - if anybody walked
around the building - if you were running a business , I am sure you
�i wouldn' t want to have zero exposure to street traffic and so that
is why I chose the rear of the building because it is of no conse-
quence unless you've got a business in the front that needs if for
storage which we have not been able to do thus far.
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MR. ANGELL: Then why did you put one apartment in the front and
leave the one blank in the back ?
MR. LEDGER: Okay, there is parking there and the cars parking on
that side is close to the building on the other side - it would be
hard to get in and out of that area so that' s why I put that one
unit there.
MR. ANGELL: And the one blank in back?
i+
MR. LEDGER: That's a mechancial room.
!I MR. TAVELLI : By mechanical you mean room for furnaces?
MR. LEDGER: That 's got a million BTU unit boiler in there.
MR. TAVELLI : That ' s the furnace room - that ' s where the furnace
area is to be - the mechanical . . . there' s no basement underneath
this . . .
1
MR. LEDGER: No, that is correct.
MR. TAVELLI : And all of the walls are block, as I recall when I was
down there.
MR. LEDGER: All exterior walls are.
I
MR. ANGELL: And the interior walls would be what?
MR. LEDGER: probably 2 x 4 's and fire rated sheet rock unless that
is against the construction code.
MR. TAVELLI ; Basically he will have to construct it the way the city
tells him to construct it .
MR. ANGELL: What has been in this retail space since you have
owned it?
MR. LEDGER: Well , the last one that Was in there was Ledger 's
Discount TV & Appliances store for about a year and one-half. Be-
- 100 -
fore that, Goodyear was using it .
i CHAIRMAN AMAN: Any further questions? Thank you very much. Is
i
there anyone here wishing to speak for the requested variance?
if
(no one) Is there anyone here who wishes to speak against the
i
requested variance? (no one) In that regard I should note for the
record that we did receive two letters that oppose the requested
variance - one by the owners of the property at 310 W. State Street
and one by the owner of the property at 324 and 328 W. State Street.
Hearing nothing further, we will call the next case.
!
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j BOARD OF ZONING APPEALS
'i COMMON COUNCIL CHAMBERS
CITY OF ITHACA, NEW YORK
ii
OCTOBER 6, 1980
EXECUTIVE SESSION
APPEAL NO. 1321 :
i
The Board considered the request for an area variance under Sectio
30. 25 , Columns 4 , 10, 12 , 13 and 14 to permit the addition of elev n
efficiency apartments to the building at 318-322 W. State Street,
in a B-2a use district. The property now has fifteen apartments
jplus commercial space ; the proposed new apartments would be in pla e
of the commercial uses . The property is deficient in required of -
street parking, the maximum permitted lot coverage is exceeded, an
is deficient in minimum required side yards and rear yard.
MR. WALSH- I move that the Board deny the area variance requested
j in appeal number 1321.
MS. DECOMBRAY: I second the motion.
VOTE: 4 Yes ; 0 No; 2 Absent Variance request denied.
FINDINGS OF FACT:
I' 1) The building is already out of compliance with applicable codes .
� 2) The proposed use would require variances as to parking, maximu
lot coverage, minimum lot size, front and side yards .
i3) The proposed use to be made of the building would entail the
I addition of elevent units of housing, none of which would have
required parking spaces . The property is already significant)
ideficient in off-street parking.
i4) Access to the proposed residential units through a rear alley
would be grossly inadequate.
II
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I , BARBARA RUANE, DO CERTIFY that I took the minutes of the Board
�I
of Zoning Appeals , City of Ithaca, in the matters of Appeals
I
numbered 10-2-80, 10-3-80 , 10-5-80 , 1321 , 1322 and 1323 on October
6, 1980 at City Hall , City of Ithaca, New York; that I have trans-
cribed same and the foregoing is a true copy of the transcript of
the minutes of the meeting and the Executive Session of the Board
i
of Zoning Appeals , City of Ithaca and the whole thereof to the
best of my ability.
Barbara C, Ruane
RecordingiSLcretary
I
Sworn to before me this
L3 day of , 1980
I
Notary Public
RUTHANN BROWN
Notary Public. S>i-ote of New Fork
Ccunty
Terni 30, 19$ 2_
*r.
IV,
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F_IT
'°ORA7E0
CITY OF -ITHACA
'108 EAST GREEN STREET
ITHACA, NEW YORK 14850
OFFICE OF TELEPHONE 272-1713
CITY ATTORNEY CODE 607
CITY OF ITHACA
M E M O R A N D U M BUILDING DEPARTMENT
FP Fr r` t
FEB 17
TO: M. Van Cort & T. Hoard
FROM: Paul N. Tavelli, City Attorney L
By—X/ Time
RE : Cornell Heights Zoning Case
DATE: February 8, 1982
A pre-trial disclosure is an essential weapon in any
lawsuit. We are allowed to propose a series of questions
(interrogatories) which the University must answer under oath
covering any and all material or evidence necessary for us to
defend - their lawsuit.
Do you have any questions you wish the University to answer?
If so, kindly submit them to me as soon as possible.
PNT
PNT/rn
"Ara Equal Opportunity Employer with an Affirmative Action Program"