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
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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
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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
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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
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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
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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.
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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
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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.
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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.
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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-
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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
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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
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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
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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.
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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
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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
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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
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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.
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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
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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.
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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
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