Loading...
HomeMy WebLinkAboutMN-BZA-1975-12-01' � T BOARD OF ZONING APPEALS, CITY OF ITHACA, CITY HALL, ITHACA, NEW YORK, DECEMBER 1, 1975 At a regular meeting of the Board of Zoning Appeals, City of Ithaca, held in Common Council Chambers, City Hall, Ithaca, New York, on December 1, 1975: PRESENT C. Murray VanMarter, Temporary Chairmar Gregory Kasprzak John Bodine Elva Holman Edgar Gasteiger Edison Jones, Building Commissioner, Secretary Christine Smith, Recording Secretary ABSENT: Peter Martin The first order of business was to elect by a unanimous vote C. Murray VanMarter as Temporary Chairman, in the absence of Chairman Peter Martin; Temporary Chairman, VanMarter opened meeting listin� members of Board present and stating that one member is absent and it takes four votes one way or the other for an appeal and anyone wishing to hold their case over to the next time in hopes of having la full Board present, may do so. This Board is operating under ; the provisions of the City Charter of the City of Ithaca and of th provisions of the Zoning Ordinances; the Board shall not be bound by strict rules of evidence in the conduct of this hearing, but the determination shall be founded upon sufficient legal evidence to sustain the same. The Board requests that all participants identify themselves as to name and address, and confine their discussions to the pertinent facts of the case under consideration Please avoid extraneous material which would have a delaying effect . Appeal No. 1101: Appeal of 212 Giles Street Inc. for an area variance at 401 Columbia Street and 212 Giles St. under section 30.25 Col. 11 in an R-2 district. MR. CLUNE: Good evening my name is Robert Clune and I'm an attor- ney in Ithaca, New York with the firm Mazza, Williamson and Clune and I represent before this Body, 212 Giles St. Inc. which is an Incorporation of the shareholders of which are Jack Squier and William A. Dillon Jr. Mr. Squier and Mr. Dillon are present here tonight to assist me if necessary and answer any questions that the Board may have. This is an application for a variance in orde� to obtain a permit for occupancy and it pertains to two sets of i' 2 townhouse apartments located in the Giles Street, Columbia Street area. As the Board may know historically, this corporation acquired ( in 1962, property with frontage on Giles Street and then in 1967 they acquired property that was behind the Giles Street property, or to the south and also that additional property that they acquired in 1967 had some frontage on Columbia Street. With respect to the property that they additionally acquired in 1962, there was constr.- acted, nine townhouse apartments with frontage on Giles, there- after in 1967 they constructed on the newly acquired property which sits in back of the townhouse apartments that were built on Giles Street, thirteen (13) townhouse units. The ingress and egress for the townhouse units are located on Giles Street, is by virtue of the Giles Street as a public Street. In other words their ingress and egress to the Giles Street units is by Giles Street. With respect to the townhouse units that are in back of or to the south � of the Giles Street apartments, those townhouse units access is gained by way of Columbia Street. There is a unopened and non public Street from Columbia Street called Charles Street which iservices and serves the occupants of those 13 units located on Charles Street and behind the Giles Street units. In an effort to place these two groups of townhouses in the personal names and with personal ownership in the stockholders, it was decided by the stock- holders that they would dissolve that corporation with Mr. Dillon taking one set of the townhouses and Mr. Squier taking the other set. The problem arose and the reason that we are before the Boar of Zoning Appeals is that in dissolving that corporation and split ting these two properties, we find that with respect to the properties that are behind Giles Street there is no frontage except the 20 foot unopened public street, Charles Street, which fronts on Columbia. So we do not have the required frontage for the second row of townhouse apartments. The use to which the apartments will be put upon a disillusion of this corporation, with Mr. Squier taking one set of townhouses and Mr. Dillon the other, will be exactly the same as the apartments are presently being used. That is the Giles Street units will still be serviced by the same tract i 3 of land that it always has been, the ingress and the egress to the Giles Street units will be the same as it historically has been I that is by way of Giles Street. The use and the occupation of the units behind the Giles Street units, we call them the Charles St. units for clarification will be utilized by the tenants and by the particular owner in the same fashion. That is they will have the same area that they have always had and enjoyed plus the ingre s and egress to these Charles Street units will be exactly the same as it has been historically. That is they will gain access to their units by virtue of the drive which opens up on Columbia St. iSo, in view of the fact that they do not intend to change the use in any fashion whatsoever, but simply to dissolve this corporation of which Mr. Squier and Mr. Dillon are the sole stockholders so that Mr. Dillon can have one set of apartments and Mr. Squier the other, we ask this Board for a variance. MR. VANMARTER: I recall some history in regard to the application for the original construction, could you review that? Are you familiar with that? MR. CLUNE: I am not, but I recall sir, that you were the Building Commissioner during this period of time. I think I can only guess because I wasn't a party for that application but I summize what happened was that when there was an application to build additions apartment units, and the land was purchased, that at that time in view of the fact that Giles Street had sufficient frontage for both apartment units even though ingress and egress was not going to bei gained by the proposed new units, the building permit was issued aad construction was. . . . . . . . . . . . . . MR. VANMARTER: I asked Ed this morning if he would bring with hi those records, if I could ask him now to. . . . . . . . . . have you had a chance to look at them? MR. JONES: Yes, here is the full case. MR. VANMARTER: Do you have any information in regards to lot siz of the two as they originally were constituted? MR. CLUNE: Yes, I submitted to Mr. Jones the surveys of. . . . . . . . . . MR. JONES: I have them here, Murray, but they were so big I 4 couldn't copy them on any of the equipment that the City has here, so I brought them all along. MR. KASPRZAK: Mr. Clune as far as you know, this is the only requirement of the City Zoning Ordinance that you can not meet, and that is the frontage? MR. CLUNE: That is correct sir. MR. KASPRZAK: Can you tell us the number of units on each propert ? MR.CLUNE: Yes, the ones that front immediately on Giles and have access and ingress from Giles Street, there are nine units on tha plot. On the back plot there are 13 units. MR. KASPRZAK: How many parking spaces are we talking within each property that is available? MR. CLUNE: Each property has at least two parking spaces. MR. KASPRZAK: Per unit? MR. CLUNE: Yes. MR. KASPRZAK: In other words, you have 26 plus 18? MR. CLUNE: That is correct. MR. KASPRZAK: Then 26 will be exiting to Columbia Street and stil are at the moment? MR. CLUNE: That's correct. The topography let me point out to the Board for those who are not familiar with this area. The top- ography is -such that immediately behind the Giles Street units there is a significant incline so that the back units based on historically based on the topography, do not utilize and can not utilize the land that the Giles Street units are on and vice versa. MR. KASPRZAK: Was this originally built under the Department of Development district or built under the R-2 requirement apartments MR. CLUNE: I can't answer that. MR. VANMARTER: If you don't mind this is the kind of thing that I'm looking for Greg and the lot size is spelled out here and answers some of the questions, I'm looking for the case. . . . . . MR. CLUNE: Let me point out to be helpful to you when I looked at that development plan and the requirements back in 1967, I noted that in order to qualify under that plan the new units would have 5 to access by a roadway that was 40 feet in width which leads me and our roadway is not that wide, which leads me to believe that the building permit was not issued under that. . . . . . . . . . MR. KASPRZAK: When you say roadway, I presume you mean the right- of-way? MR. CLUNE: The right-of-way, the driveway. MRS. HOLMAN: The driveway is in fact the frontage that is being discussed? MR. CLUNE: That's correct. MR. KASPRZAK: Do you have any idea, the size of the total property? In terms of sq. foot or. . . . . . . . . MR. VANMARTER: I have figures here that I have picked out and on the original 46,700 sq. feet for the 13 units. Apparently a total of 113,000 sq. feet there is considerable amount of acreage in their. I have to believe that application had to do with some- thing like parking in the front yard. MR. GASTEIGER: Are these uniform units, one bedroom, two bedrooms MR. CLUNE: They are uniform structurally and let me ask. . . . . . . . . . MR. SQUIER: They are all three bedroom townhouse, each with their own garage in the basement, where you drive into the garage, two floors on the hillside in other words, two floors above, living room and dining area, bath, kitchen and the second floor three bedrooms and a bath. i MR. GASTEIGER: When this was taken to the Planning and Develop- ment Department the question that concurrance with the Board of Public Works and the Fire Department was raised, has there been any action on that? They approved of the request conditional upon the concurrence of the Board of Public Works and the Fire Depart- ment that no problems would be caused by the division of the development into the two separate corporations. MR. CLUNE: Well, I must tell you that nothing has been done in that area because we have never thought of any problem with respect to that and I don't know of any problem that there would be regarding that in that to get to Charles Street units the 13 units 6 I the access would always be the same as it has been historically when we received our building permit and the same for Giles, the access would be the same. MR. SQUIER: The hillside site is such that the Charles Street units, the pavement that you drive in on is higher than the roof- tops of Giles Street and they are very seperate as a matter of fact when we did build them we talked to the Fire Department. MR. GASTEIGER: Well, I'm curious to know as to why that was inserted here unless they thought there might be some problem. MR. CLUNE: I was not at the Planning Board meeting. . . . . . . . . MR. SQUIER: It was virtually mentioned in passing that this perhaps should be brought to the attention of the Fire Department but that's all that was said. KASPRZAK: In terms of the fire request, I would assume the reason why the Fire Department was requested to pass a comment on it was because of the danger of an accident of the equipment the drive- way only being 20 ft. wide doesn't give them extremely comfortable access especially in emergencies when people are coming and going. MR. SQUIER: Of course, this is the existing width and as I said when we built it we went over it with the Fire Department and got their approval on the general mechanics and nothing is changing. MR. KASPRZAK: In an emergency, is there any other entrance or access or exit rather, they could use? MR. SQUIER: No, nor has there ever been. MR. CLUNE: I might point out to the other members of the Board once you traverse for a distance of approximately 100 ft. the area in front of the apartments opens up so that there is quite a large parking lot in front of the Charles Street units so that if there was any question about access for the fire vehicles, then I'd Just like to make that observation that there is a parking lot in front that would give you additional width and space to traverse back and forth. MR. SQUIER: It's truly two land traffic without any problem at al even for fire vehicles. 7 1 MR. KASPRZAK: Did you ever attempt to acquire any property to enlarge the properties? MR. SQUIER: Well, actually there is just houses along the street there. There is no room and frontage available. MR. KASPRZAK: You do have a pretty sizeable property in the back and with it comes only one access like this and it makes it awfully difficult. MR. GASTEIGER: Did I read that you own the two story frame dwelling with a two car garage and sold it? MR. SQUIER: Yes we did. MR. GASTEIGER: So you lost frontage by doing that. MR. SQUIER: It was a seperate piece essentially at all times. Actually, although I would say there was frontage and although it would satisfy things theoretically there was no more access so it wouldn't satisfy anyway. MR. VANMARTER: I can't quite satisfy myself on when the application was made before, unless it related to parking front yard on the first unit and second, the same question that occurs tonight on the division of the ownership thats frontage on public way. The ownership will be divided? MR. CLUNE: That is correct. MR. VANMARTER: Transfer of title and in each case? MR. CLUNE: That's correct sir. If the variance is granted it will be divided pursuant to the manner of which it was acquired. The original tract will go to one individual and the other tract will go to the other individual. MR. KASPRZAK: Can you relate this situation to the subdivision requirements at all? MR. CLUNE: We say that the subdivision requirements are not appli cable for the following reasons: (1) That it never was a one tract of land we acquired it separately for seperate purposes. (2) As I understand the definition for a subdivision, it's for the purpose of selling the property or for the. . . . . . . . . MR. KASPRZAK: The purpose of subdivision of land whether it is sold or not. 8 i MR. VANMARTER: We might correct the definition division of more than two. MR. KASPRZAK: No more than two or more. MR. VANMARTER: That's what I questioned and needed corrected. You can't divide into less than 2. I ha(k in mind more than two. MR. KASPRZAK: Two or more. MR. VANMARTER: I'm saying more than 2. Two is not subject to subdivision regulations. MR. KASPRZAK: I think that it is. MR. VANMARTER: Ok, that was the question. MR. CLUNE: That definition if I could call it to the Boards attention says that the division of a parcel of land into two or more lots or parcels for the purpose of sale or for building development and at the time when we discussed it with the Planning Board we suggested to them at that time that we have always had two parcels our deeds are seperate parcels, one for the Charles Street units, one for the Giles, they have never really been merge other than the fact that there is a common owner of these two • seperate tracts. We also indicated to them at that time that it wasn't for the purpose of selling, we don't want to sell, we just want the stockholders to. . . . . . . . . . . . . . MR. KASPRZAK: In all fairness we don't have a jurisdication over the subdivision, I'm only questioning because the Planning Board has the subdivision regulations. MR. CLUNE: They did ask us and I feel that: we satisfied them. MR KASPRZAK: They did rule that it wouldn't be a problem of sub- division. . . . . . . . . . . MR. CLUNE: That is correct. MR. GASTEIGER: Will Charles Street be part of the 13, that property is part of the 13 units that you call the Charles Street apartments. MR. CLUNE: Yes sir. MR. GASTEIGER: So that a single individual will own and be respon sible for that. MR. CLUNE: That is correct sir. MR. VANMARTER: If you will excuse me for delaying I've got some- j 9 Ii I( thing rattled in the back of my mind and I can't think what it is. In fact you're saying then that parcels never were infact joined? MR. CLUNE: That is correct sir. MR. VANMARTER: Each one stood as a seperate emnity but had the same ownership. MR. CLUNE: That is correct sir. MR. VANMARTER: So, now if it is transfered to two individuals they remain precisely as they have and no implication for the sub- division that has been discussed. MR. CLUNE: That is correct sir. MR. VANMARTER: Am I correct that these were constructed so that there is individual service and so on to each unit? MR. CLUNE: That is correct. MR. VANMARTER: The potential of this was that it could in fact involve individual ownership of individual units under the law. MR. CLUNE: That is correct. MR. VANMARTER: Do you read any implications in this. MRS. HOLMAN: _ So that in fact the units then could be sold off individually. MR. VANMARTER: By regulation. . . . . . . . . . MRS. HOLMAN As condominium type. MR. VANMARTER: And with the additional investment each unit was provided with individual service. MR. GASTEIGER: it's always been that way. MR. VANMARTER: That is correct. MRS. HOLMAN: Is there any intent to sell the property in that fashion. MR. CLUNE: No mam' it was at a time when there was a great deal of discussion about condominiums so when they constructed them they covered that area but let me suggest to you that the price and the cost of transferring these into condominiums is extremely excessive and there is no intent presently by any of the owners to do anything like that. MR. SQUIER: Let me add one thing, they are not apartments in any sense, they are like rural houses in Georgetown with a 12 inch 14 1 masonry wall between each and each person controls his own utilities and pays for his own utilities and he has his own furnace and so forth. They were conceived as individual houses in any case as for function so that they would be different apartments and it wasn't just a notion of caandominiums we wanted to provide two I townhouses not apartments. MR. VANMARTER: May I ask a direct question, would it put a burden on you if we put this condition upon this variance that these not be sold individually? MR. KASPRZAK: When you say they will not be sold individually, could you explain that because I believe under the present Ordinance in the City they can not be sold individually. MR. VANMARTER: I guess I don't understand that. MR. KASPRZAK: I don't think that they can be sold individually because there isn't sufficient land to maintain the proper . . . . . . . . MR. VANMARTER: Ok, this is what would have been necessary by cluster, clustered in fact ok, that's not a good question then men excuse me. Any other questions? MR. CLUNE: Let me point out to Mr. Gasteiger, he indicated that when we sold off a piece of land, possibly we could have kept a little more frontage on that dwelling house and I wanted to suggest to him that the problem we had is a very huge maple, very close to the driveway, very pretty maple. As a matter of fact and in order to obtain more frontage on that driveway, we would have had to of uprooted that and we just didn't feel that that would be appropriate for the dwelling. MR. VANMARTER: I remember clearly the parcel in question was the private home of the owner of this land that was acquired. Is that correct? MR. CLUNE: Yes, Emory Pew was his name. MR. VANMARTER: It was clearly stated in the hearing that this was not a part of for economical reasons, could not be made a part of and should remain seperate and should be available to be disposed of or kept as they did choose. Any more questions? MR. DILLON: Id like to say that as we are all concerned with all 11 1 of these types of things in our community that it's worth hearing about changes in the neighborhood or building closer to a neighbor or environmental or ecological impact, nothing of that type is transpiring it's paper transfer that' s all. The property remains the same, the entrance and egress remains the same, the fire exit is safe, it has been for the past 6 years and it is a two way stre t going in and out. Nothing essentially changes it's paper transfer period. As far as the neighborhood or neighbors or anybody nothing changes, tomorrow it's the same as it is today, nothing changes as far as anyone outside is concerned. MRS. HOLMAN: The patterns of occupancies have changed a bit, I think, I can't resist that. MR. VANMARTER: I'd like to close with the misunderstanding of the Planning Board putting on conditions of this over which we have no control and this Board can not be responsible or act for recommendations of the Board of Public Works or the City Fire Department. Anyone who would like to speak in support of this application? Let the record show that none appeared. Anybody present who would care to speak in opposition to this application? Let the record show the same. That concludes the hearing on this case I j' 12 BOARD OF ZONING APPEALS, CITY OF ITHACA, EXECUTIVE SESSION DECEMBER 1, 1975 APPEAL NO. 1101 MR. GASTEIGER: I move to grant the area variance under this application. It is granted for the existing thirteen (13) units and shall in no way pertain to any other units than the existing thirteen (13) units. MR. BODINE: I second the motion. FINDINGS OF FACTS 1) Testimony shows proposed use is no different than existing use 2) The effect on the neighborhood is not changed. 3) Application contains no provision for additional living units or change in density. VOTE: Yes - 5 No - 0 Application has been granted. j 13 BOARD OF ZONING APPEALS, CITY OF ITHACA, CITY HALL, ITHACA, NEW YORK, DECEMBER 1 , 1975 APPEAL NO. 1102: The Appeal of Paul T. Ward at 202 Brdige Street for an area variance under section 30.25 column 13 in an R-2 district. MRS. YANOF: Ladies and gentlemen, my name is Elizabeth Yanof and I'm an attorney in Ithaca. I'm representing Gladys and Paul Ward who are here tonight as are several of their neighbors. We're applying to the Boaad of Zoning Appeals under Section 35 of the General City Law for a building permit to build a garage on land which appears to be on a maped city street but land to which the City apparently has not acquired title. I think I'd like to give you a bit of background so that you will know why it is that we are here under that section of the law. The Wards own the property immediately adjacent to what is shown on your maps as Treva Avenue and that section of Treva Avenue has never apparently been utilized j as a city street, although it is shown on the maps as Treva Avenu The Wards deed indicated that their northern boundry goes right up to the edge of what is called Treva Avenue and if you stand on Bridge Street and look at the Wards property it appears from the way the grass is cut and the general topography that their boundry on the north goes several feet beyond the edge of their driveway. The Wards decided that they wanted to build a garage a the end of their driveway and applied for a permit. It was at that point that they discovered that the boundry line of Treva Avenue does not go 5 or 6 feet on the north side of their driveway, but in fact goes right down the middle of their driveway. I haven't mentioned in the application or the letter for the permit but you should know a little bit of the background and that is that the Wards thought that one solution to their problem might be that they buy the land known as Treva Avenue from the City and then they would have no trouble in getting their permit to build their gars e. They were told that they could buy the strip of land which would be 8 feet in width by 148 feet depth for a nominal price. What happened was the proper procedure was followed to enable the City to sell the War ds this property but it turned out that the nomina]� price came to almost $700 and it wasn't within the Wards desire 14 i or means to pay $700 for this strip of land which was 8 feet by 148 feet. The majority of the $700 price was $500 for what was the appraised value of that land. The appraised value was $500 and frankly the Wards never thought that it would be appraised so high because if you appraise each 8 by 148 strip of land in that area at $500 you come out something close to 19000an acre. The Wards had purchased their own property in 1972 for not very mueh more than that with of course, the existing house. So the Wards then decided to explore other means by which they might get their building permit and that is why we are here tonight. Several cases were discovered indicating that if the persons deed indicates that they own right up to the edge of the maped city street but unused by the public, then in fact, they own to the center of the Street. Similar to the ownership to the center of the Street of public highways which are owned only of course subject to the rights of the way to the public. But there are no rights of way granted to the public in a case like this because the street is 4t used. The other aspect of the Wards appeal to this body lies in the fact that the City apparently never acquired title to that strip of land shown as Treva Avenue. I say that based on my own examination of the abstract of title to the property. The Wards abstract covers their own parcel of land plus land to the north all the way up to Mate Sstreet. There is no deed to the City in the abstract at all but there is in 1911 a right-of-wap granted to the city to lay a water main and my understanding is that the water main is now on what is known as Treva Avenue and if you go out there, the water main is obvious, where it has been laid, it's obvious. That is the rather tedious route by which we got here although I think the proposition is simple. The Wards would like to build their garage at the end of their driveway and they would also like to do it before the weather really turns cold. It seems that section 35 of the General City Law was the appropriate vehicle so here we are and I will try to answer questions and as I said the Wards are here also. MR. VANMARTER: You have described to us a routine by which the property could be conveyed and you have gone through the motions I 15 of having the apprasial and the arrangement of a sale by the City to any bidder as required by law. MRS. YANOF: That is correct. MR. VANMARTER: Ok, and this has not been met. MRS. YANOF: I'm not sure what you mean that it has not been met. MR. VANMARTER: The sale was not held and there was no bid. MRS. YANOF: The auction was held although no one made a bid. MR. VANMARTER: Right, ok, so infact the routine of transfering the land in question has not been met? I'm saying clearly in my mind as you have described it and as I read from the letter which came as a memorandum, it's outside the jurisdiction of this Board to entertain such an application if it is provided for in the Municipal Law the routine was described and it was gone through and included bidding and it was not consummate and this is clearly outside the purview of this Board, I believe and I'd like to hear any suggestions that you have or what the Board members have. MRS. YANOF: Well, as I understand it that was one of the choices that the Wards had was try and solve their problem but another seperate and completely distinct choice was to apply directly to this Board under Section 35 of the General City Law. The reason I hesitated when you asked the question about transferring the ownership of the property to the Wards which is a good question because we are here before you saying that we are contending that the Wards own the property already. The reason I hesitated in answering your question was because the City said that they would give a quick claim deed to the Wards of that property. They never claimed that they owned the property but that they could give clear title to the Wards, they simply said that they would give whatever interest they had in the property to the Wards and when I spoke to Marty Shapiro he indicated that part of the procedure is not to check whether or not the City has title but simply to draw the deed which would give whatever right the City has to that property to the Wards. So it wasn't really a transfer of title, it was simply the City giving up whatever claim it had to the land. MR. VANMARTER: It would occur to me, follow this if you will 16 please, if they did in fact exercise a quick claim deed, this is something you could take to the County Clerk and get recorded and this would become either a part of that lot or the use of it would be permitted in conjunction with that lot. Is that basical y correct? MRS. YANOF: It would become a part of the history of the title yes, but it is not a guarantee that ownership of the land would then be with the Wards, it would simply be that the City was gran ng any ownership rights that they had in the land to the Wards. If in fact Mr. X owned the property and lived elsewhere, it doesn't matter where he lives but if Mr. X in fact owned that property the City can still grant a quick claim deed to the land to the Wards which prevents the City from coming and claiming any owner ship but it doesn't prevent Mr. X from coming and saying that he owns it. MR. VANMARTER: Ok, you have described a second routine that could be completed to arrive at the use of this land. And that has no • ! been done. MRS. YANOF: That is correct. MR. VANMARTER: I would suggest and I'm speaking to the Board members now, that this Board is constituted under the provisions of the General City Law in section 81 and I suspect very strongly that this is under State Zoning Law and the purview of the Board is limited to those duties described in the Zoning Ordinance. Now, you have described a second routine and neither one of these have been consummated, is that correct? MRS. YANOFF: I'm not sure what you mean by the second routine? MR . VANMARTER: The first one was the bidding by public sale. MRS. YANOF: Yes. MR. VANMARTER: The second one was the City exercising a quick claim deed. MRS. YANOF: That was part of the first plan. MR. VANMARTER: I see. MRS. YANOF: It was part of the bidding, had the auction taken place and had the Wards bid on the land the City would have then signed a quick claim deed. That's part of the first procedure. I I 17 MR. VANMARTER: Ok. The quick claim deed is in lieu, cyf a direct transfer which involves all rights for ever then? MRS. YANOF: It's in lieu of a warranty deed which would give fru title. . . . . . . . . MR. VANMARTER: Ok, so the City was not even in a position to furnish a warranty title? MRS. YANOFF: Apparently not. MR. VANMARTER: Right, I see. I'd like to hear from the Board members comments, please. i MR. BODINE: It would seem to me that if the Wards own the property they don't need a variance to build there. If they don't own the property any variance that we give them, wouldn't be any good. MRS. YANOF: May I respond to that. As I read Section 35 of the General City Law, if the action must be initiated in the Board of Zoning Appeals. This isn't an appeal from a denial, this is an action initiated in this body because Section 35 says that you caa apply directly to the Board of Zoning Appeals for a building • permit in a situation like this. MR. VANMARTER: That may be but I will read our instructions to this Board and the only way any application gets to this Board is by an application under a special permit or by the denial of an application or permit to build or an application for permit for occupancy. Now, I believe that is the extent of our duties and powers. MR. KASPRZAK: Actually if I may add there is another item that you haven't mentioned which is taking this case basically out of our jurisdiction. And that is the action of the Council in terms of the master plan which indicates that Treva Avenue is going to be used as a public right-of-way whether it is or not, is not the issue right now, not by us anyway. Therefore since the Council has adopted such plan we can not overrule them under any circumstances so I would suggest that you get together with either the City Council or the City Attorney or somebody. MRS. YANOF: Ok, I think that Mr. Ward wants to respond to that. MR. VANMARTER: Would you come forward so that we can get it on e 18 ' 1 tape and in the record please. MR. WARD: In response to that last question, I'm not sure that it is to the point of the question but I'd like to point out that the Board of Public Works is on record as of August, I believe with respect to this portion of Treva Avenue as saying that it is surplus land and that the City has no plans of using it whatsoever. MR. KASPRZAK: I'm sorry but the Board of Public Works can not rule a legal decision on the Council at this point. MR. VANMARTER: The master plan has status, it is an official document and it has been adopted and it is I would suggest what 1972 or 3. MRS. YANOF: My understanding and one of the reasons of appearing before the Planning Board was to clear up any questions about what the plans for that particular area might be and the Planning Boards recommendation being that. . . . . . . . . MR. KASPRZAK: That might be true but. . . . . . . . . . . MR. VANMARTER: That' s right I don't get this opportunity very often but I'm going to directly and openly criticize the kind of recommendation we get from the City Planning and Development Board and the record is clear here, this has never been done before and I'm speaking directly and I will read this for the benefit of those people who do not have this copy. Director of Planning and Development Van Cort then informed the Board that he had discussed the case with Attorney for the City, M. Shapiro. It was Attorney Shapiro's opinion that since the City had done an appraisal of the property and put the property out-to-bid, at a cost of approximately $150 at the request of the Wards, that no permit should be issued until this money has been reimbursed to the City. This is absolutly no concern to this Board, the infor- mation maybe of value to somebody but not to us. This further continues "after discussion it was resolved that "the Planning & Development Board recommends approval of the variance on the basis of planning principle, and here is a Board which didn't in great part formulate the General City Plan and here they have chosen to ignore it and they use the word planning principle 19 I further " and leaves resolution of the legal question to the Board of Zoning Appeals" . This is entirely out of our province always has been and I hope it will be, and the Attorney for the City, now this is directly after in the first sentence having said that they had confirmed with the City Attorney. I think that it is a shame when a city department does this to a property owner, citizen and somebody who has an interest and is making an applicat- ion to this Board or any other such routine. I think that they had thought perhaps that they were trying to assist Mr. & Mrs. Ward and I'm suggesting that they had not. MRS. YANOF: Something that continues to confuse me is the fact that as I understand it is that Council passed the plan to sell the property to the Wards and it seems to me that inorder to hav passed that they must have believed that they would not be using Treva Avenue as a Street. So, I don't understand that apparent inconsistency. MR. KASPRZAK: This is nothing against you or the Wards, this is strictly going by the books and unfortunately we have no legal jurisdiction. They did not explicity indicate to us or anybody in the City that Treva Avenue is no longer going to be used by the City under condition therefore, it can be disposed of as they wish. Just because they might have completely forgotten about it, that's all it means to me. Just because they didn't concur when asked about it they said they would sell it. Does not dispose of the legal status as is. I do not want to be put in the position in which we have been before and taken to court. Fortunately we've been lucky so far. MRS. YANOF: I hear what you are saying is that the Council has done something to indicate to you that this property can not be used by the Wards or anyone else because it will be used for a City Street and what we know that they have done is to look at that question directly that specific particular question and said we are not going to use it for a street, it's alright with us to Isell it. 20 MR. KASPRZAK: I hear you loud and clear but the enabling legis- lation does not give them the lattitude approach to be direct an until they are our hands are tied. MR. VANMARTER: I don't remember the Board being in this kind of position before where the question remained. In our experience this question has not come to use in this form, I think that it is clear in my mind and I can suggest a recourse for you, in my thinking and certainly yours from the legal standpoint has considerably more weight than my thought. I can't remember the Board being in a position before and I think that it is extremely awkward and I certainly apoldgize to you for the way I have to look at this and what' s been indicated by at least one Board member I don't have a solution and I don't have a suggestion truly. If you have other questions that you would like to have us research or if there is a specific question you would like to have us address to the City Attorney, I'd be glad to entertain that. MR. KASPRZAK: May I suggest something? MR. VANMARTER: Yes, please. MR. KASPRZAK: A letter from both sides be sent to the City Attor- ney to look into those two letters and give us a clear legal statement to what we are in powers to do. MRS. YANOF: The two manners coming directly here on the initial application for the permit and the matter of the City. . . . . . . . . . MR. KASPRZAK: I think that it is quite critical and I think that we should have some sort of legal indication. MR. JONES: I believe Mr. Shapiro has spoke to Mr. Martin about this thing being two colletEgues and I gather from my conversation from Mr. Shapiro, if the Wards were going to be willing to pay the City the cost of the appraisal, that he would be willing for them to use that 8 foot of land with the full knowledge that if the City ever wants it, that they would have to vacate it. MRS. YANOF: Since that has been brought up, let me speak to that specifically if I may. Although it was my belief that it might b 21 inappropriate for me to bring it up. The Wards have no objection for paying the City the money which the City has expended on the advertising and in order to get the appraiser out there to i appraise the property. If this Board or anybody else can figurer out a procedure by which the Wards could pay the City back for that but not pay the City the $500 which it was appraised at, that's fine with the Wards but I don't know what procedure that might b and I think that Mr. Shapiro's poisition that he has no objection if the City gets reimbursed its $150, is appealing in some sense but has nothing to do with what the law is as I understand it. MR. KASPRZAK: I would agree with you. MR. VANMARTER: Absolutly pitiful. I would suggest if it would be acceptable to you that we do not act on this and that we hold the application and direct the two questions specifically to the City Attorney and perhaps some more of our own, if that's acceptable to you, I'm afraid that that is the best that we can offer to you at this time. MRS. YANOFF: I think that we will take it, if that is the best that you can offer. MR. VANMARTER: Thank you very much. MRS. HOLMAN: I would favor a special meeting of this Board if the rest of the Board members would concur to consider the answers to those questions before the end of this month. MRS. YANOF: The Wards would certainly appreciate that. They have been trying for a long time to get their permit. MR. VANMARTER: Well, I would suggest that our communication to the City Attorney contain the statement that time is of the essence and see if it is successful and if it is you will have the assurance of this Board to meet so as to not delay whatever kind of a decision or suggestion that we get from the City Attorney. MRS. YANOF: Thank you. MR. VANMARTER: Thank you very much. This concludes the public hearing the Board will go into executive session. 22 f f i I C E R T I F I C A T I O N I, CHRISTINE SMITH, DO CERTIFY that I took the minutes of the BOARD OF ZONING APPEALS, CITY OF ITHACA, in the matters of Appeal No. 1101 and 1102 on December 1, 1975, at City Hall, City of Ithaca, New York, that I have transcribed same, and the foregoing is a true copy of the transcript of the minutes of the meeting and the Executive Session of the Board of Zoning Appeals, City of Ithaca, on the above date, and the whole thereof to the best of my abilit . Christine Smith Recording Secretary Sworn to before me this day o 1976. Notary Public York in f iru CCmty C`"'' ar,`, 30, 191y I