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Home My WebLink AboutMN-BZA-1971-09-10 AT A SPECIAL TERM OF THE SUPREME COURT HELD IN AND FOR THE SIXTH JUDICIAL DISTRICT AT THE BROOME COUNTY COURT HOUSE 4T BINGHAMTON, NEW YORK ON SEPTEMBER 10, 1971. PRESENT: HON. HOWARD A. ZELLER, Justice Presiding. INDEX NO. 71-7-0-0 STATE OF NEW YORK SUPREME COURT TOMPKINS COUNTY - - - - -- - - - - - - - - - - - - - -- -- - - - - -- - -- - - - - - - - - - - IN THE MATTER OF THE APPLICATION OF JEMMA M. WILCOX, Petitioner, V. RALPH BALDINI, Chairman; GEORGE HARPER, JAMES ROGAN, FRANK ALO, ANTHONY PETITO, HARRY BORTZ, Constituting the Board of Zoning Appeals of the City of Ithaca, New York, and EDISON JONES, Zoning Office and Building Commissioner of the City of Ithaca, HAZEL SOYRING, and the CO-OPERATIVE CONSUMERS SOCIETY, INC. , Respondents. - - - - - - --- -- -- - -- - - -- - - - - -- - - - - -- -- - - - - -- NORMAN D. FREEMAN, ESQ. Ithaca, New York Attorney for Petitioner; _ FRED WEINSTEIN, ESQ. Ithaca, New York, '+ Attorney for Respondents, Board of Zoning Appeals; WIGGINS, TSAPIS, GOLDER and HOLMBERG, ESQS. Ithaca, New York Attorneys for Respondent, Co-Operative Consumers Society, Inc. - --- -- -- - - -- - - - - - - --- -- - - - - - -- - - --- - - - - - - - DECISION F 3 f w ' 7 y I -2- Petitioner in this article 78 proceeding seeks to have set i aside a decision of the Board of Zoning Appeals of the City of Ithaca granting a variance for the use of respondent Soyring's premises at 614 and at 618-620 West Clinton Street, Ithaca. Each parcel now has a two-family house on it and each was held by Mrs. Soyring for -rental purposes. Petitioner owns rental residential property at 213 Cleveland Avenue, presumably, in the neighborhood of the Soyring property. A variance was sought in this case to permit the prospective purchaser of the two Soyring parcels, respondent Co-Operative Con- sumers Society, Inc.. , to demolish the buildings and use the land area to construct a landscaped daytime parking area for its own employees and employees of tenants in the Society's shopping complex having an entrance on West Clinton Street directly across from the Soyring proper- ties. The Soyring premises are in an R-3 zone which permits parking lot construction only when related to private dwellings, conced- edly here not the case. The character of this R-3 zone and the immediate neighborhood of the Soyring property is essentially residential although there are commercial encroachments and the R-3 zone is surrounded by commercial zones. A hearing on an earlier application by Mrs. Soyring for a similar variance for the same properties was held on notice by the Board -3- on June 2, 1971 and was unanimously granted by its decision of June 4, 11, 71. This petitioner did not testify then as an objectant but she subsequently did obtain a Show Cause Order staying the matter until a hearing on it scheduled initially for July 19, 1971 and stipulated to be adjourned to September 10, 197 1 could be had. Meantime, Mrs. Soyring filed a new petition executed June 28, 1971 and applying for the same variance granted by the Board's June 4, 1971 decision "In order to cure and render moot alleged procedural defects and irregularities cited. . . ". Presumably these objections were cited in papers attached to this petitioner's noted Order to Show Cause which will be consid- ered merged with this proceeding. Petitioner objects to the Board's proceeding and decision granting the variance first upon the ground that the published notices of the hearing on respondent's application failed to state the location of the premises for which a variance was sought as required by Section 12 (c) of the Zoning Law of the City of Ithaca, stating in part that the published notice of a hearing on appeals ". . . shall state the relief sought, the appellant's name and the location of the property. " Secondly, petitioner contends the decision rendered is incomplete and incorrect in that it fails to set forth a summary of the evidence also as required by a part of Section 12 (c) that states, "Every decision of the board of appeals shall contain a full record of the findings of the board. . . and a r 'f w - i -4- written summary of the evidence presented at the hearing. . . " Finally, petitioner claims that the record fails to indicate any such unnecessary hardships or practical difficulties as are a requisite to the granting of a variance. The petition concludes therefore that the Board's action in granting this variance was and is ". . . illegal, unconstitutional, arbitrary, capricious, unreasonable and improper. . . ", and should be set aside. Respondents' answers affirmatively assert than: in view of ilic prior hearing on Mrs. Soyring's application for a "parking lot" variance and petitioner's subsequent action in relation thereto, the published notices stating "case 942 Appeal of Hazel Soyring for variance to construct a parking lot in R-3 zoning. . . " constituted adequate and proper notice to petitioner, in itself, and particularly as supplemented by a written notice of the August 2, 1971 hearing, its date and location, its purpose, and specifying the Soyring premises involved by street and number. This supplemental notice was mailed July 26, 1971 to this petitioner (and 36 other individuals). Respondents further allege that there were several news stories concerning the details of the parking lot hearing published in the Ithaca Journal subsequent to July 22, 1971. It is further pointed out that petitioner in fact did appear at the hearing, voiced no objections to the application when given an opportunity to do so but merely requested an 1 -5- adjournment for the purpose of having her counsel present. Thegeneral purpose of such notice provisions is to give any objectants an opportunity to be present at such hearings and to voice their objections for the record. (See, e. g. , London Sporting Club, Inc. v. Helfand, 3 Misc 2d 431, affd. 6 AD 2d 775. ) This petitioner was present at the hearing, but voiced no objections. Her allegation that she was "surprised'' to find it was an application involving the same premises is not credible. It is found that adequate notice in substantial compliance with the Zoning Law was given to petitioner. Petitioner's contention that the decision did not set forth a summary statement of the evidence presented is not a fatal defect in this case. First, she was present throughout the hearing and heard firsthand the testimony given and she fails to show in any way how this omission affected her. Secondly, this omission, technical in her case, could be readily cured by court order without causing any different result on the merits. This objection is without substantial merit. The Board in making the determination to grant the variance had before it the records and transcripts of two hearings on the same variance application. A review of the record and transcripts reveals to this court that there is sufficient evidence and testimony to support the Board's finding that it is not economically feasible to operate and maintain the properties as formerly and that continuance of such operation could -6- only result in deterioration to the point of constituting a health hazard and a downgrading of the neighborhood. Where any reasonable basis exists for the granting of a variance this court may not substitute its judgment for that of the Board of Zoning Appeals. (See Del Vecchio v. Tuomey, 283 A. 1). 955, 956, affil. 308 NY 749. ) The determination of the Board is found not to be arbitrary or capricious, nor in violation of any rights of petitioner. Finally, petitioner has failed to show herself a person so aggrieved as to sustain her petition. (General City Law, X82. ) "The lay\- is well settled that. . . a 'person aggrieved' [is] one. . . specially, personally- and adversely affected. . . . There must be special injury or damage to one's personal or property rights as distinguished from the role of being only a champion of causes. . . ". Assertion of mere owner- ship of property 'in the neighborhood' does not suffice, and that is all f I that appears here. (Matter of Hattem v. Silver, 19 Misc. 2d 1091, 1092. ) On all the foregoing grounds, the petition should be dismissed on the merits and without costs. An order may be submitted accordingly. Dated: October 22, 1971 I JUSTICE OF THE , E M E COURT . j i � a -7- The following have been forwarded to the Tompkins County Clerk for filing: 1) Original Decision 2) Petition and Support of Application 3) Respondents' Answering Affidavit 4) Answer 5) Answer G) Answer 7) Affidavit: Returned herewith to Attorney Weinstein are the transcript of the hearing of June 3, 1971 and the transcript of the hearing of August. 2, 1971. �I