ITHACA, N.Y.—Occasionally, readers reach out asking about legal questions with one project or another. The general rule we have at the Ithaca Voice is to not comment until a court has weighed in. In this case, two courts have, and with differing opinions. The result is that a South Hill construction project is finding itself in a bureaucratic quagmire.

The project in question is “The Outlook Apartments,” otherwise known by its address, 815 South Aurora Street. The 66-unit, 153-bedroom project by Ithaca-based Visum Development Group is under construction on South Hill with an intended delivery of next August, in time for its intended market of Ithaca College students.

However, the delivery is complicated by a looming legal matter. The project is the subject of an Article 78 lawsuit brought against it by neighbors of the project, formally led by South Hill landlord Brian Grout. Under New York State law, an Article 78 lawsuit is filed against communities or public bodies when the plaintiff believes that arbitrary or capricious decisions have been executed, inappropriate of governmental powers. In this case, the decision is the City of Ithaca’s approval of the 815 South Aurora apartment project.

The timeline of the issue boils down to something like this. In July of 2019, the 815 South Aurora project received its negative determination of environmental significance, which if you read the Voice‘s monthly planning board write-ups, you know that’s where a board determines that all negative impacts caused by a project have been effectively mitigated. Review began in February and went through a fairly routine process. South Hill residents and landlords have simmered over the project since it was first proposed in 2015, citing its size, its student market intent, and its proximity to a telecommunications tower. The cell tower issue led to a rewrite of city law to shrink the no-build radius around a cell tower from double its height to the tower’s height plus 20 percent, 360 feet to 204 feet in this 170′ tall tower’s case, with the reason being that engineers examined the original law as enacted in the 1990s, and noted that cell towers don’t tend to fly away or bounce if they come down.

Given the intense opposition, it was not a big surprise that neighbors filed a lawsuit. The first Article 78 lawsuit was filed in August 2019, followed a couple weeks later by a request for an administrative zoning appeal, a request for clarification of the city zoning code from Zoning Administrator Gino Leonardi on anything that might trigger the need for a variance. The neighbors’ argument was that the project had to go to the Board of Zoning Appeals (BZA) for the approval of variances before it could have received planning board approval. However, it had been determined during project review in April 2019 that the project did not need variances. The city sought to dismiss the lawsuit on account that appeal of zoning variance determinations has to be done within 60 days, and that the neighborhood group missed their window.

This in turn led to a second lawsuit filed in October, that sought to rescind approval and take issue with the city over that 60-day time limit. The first court it was heard in was the Tompkins County Supreme Court, which had determined the city was correct. The South Hill neighbors appealed the decision to the New York State Court of Appeals, and this is where it gets interesting and problematic.

The issue the Appeals Court found is that there was never publication from April 2019 of why 815 South Aurora Street didn’t need variances. It was just determined by city staff internally, and nothing was ever formally submitted during the Planning Board’s review. This is where the judge raised issue—if you don’t have a published determination, the 60-day period for the public to contest a decision can’t occur. The city would have had to provide at some point during review why it did or didn’t need a variance. (Unless appealed by an outside party, the work that goes into determining whether a variance is required doesn’t need to be shown, but the decision itself still needs to be on the record.)

In its determination earlier this month, the appeals court came to a couple of conclusions. The Planning Board’s review, based on what it had available, was appropriate. The city’s Zoning Division, however, who determined if the apartment project needed variances or not, had made an error by not filing its paperwork.

South Hill resident Mike Belmont has been assisting the group with their lawsuit. As a former seven-year member and Zoning Board of Appeals chair for the Rochester suburb of Irondequoit, it helps the plaintiffs to have someone with some understanding of New York’s complicated legal system, especially in matters of zoning code. He said he became involved after conversations with Suzanne Dennis and Brian Grout, with his role evolving to “team leader” and consultant to Dennis and Grout.

“In April of 2019, Gino Leonardi decided that variances weren’t required. He made that decision known internally and administratively by email…but that decision was never filed. So what happened is that 60 day period from the time of filing, never ran, because there was no filing,” said Belmont.

So to make this clear, the court’s direct issue is not with Visum, and not with the Planning Board. The issue is with the way the Zoning Division handled its decision-making process and sharing its findings, and that’s where this debate is.

This opens up a new issue, one with much more tangible effects. Grout, Belmont and their group want a stop-work order issued on the project, which would ostensibly be a big problem for Visum and its August deadline. However, the city of Ithaca says a stop-work order is not necessary in this case because the issue wasn’t in the review itself, but as an administrative issue, the need to publicize the findings showing no need for a variance.

“The appellate court determined that there was a complication or a flaw in the determination process to go for BZA. There was no variance granted, but the issue is procedural. The appellate court did not determine that the permit was issued inappropriately or is invalid, so no stop-work order is needed,” said Senior Code Enforcement Officer Robert Ripa.

“I’ve read the code a hundred times, and it’s certainly the chief code enforcement official’s interpretation of things on how to proceed and how to go forward with this…it seems like it says in my recollection that if incomplete information or issues around health and safety have occurred, then a stop-work order can be issued. Does it have to be? No. Can it logically follow that that is something that should be done here? Yes,” said Belmont.

Although the court’s issue was in the administration of the zoning law, Belmont sees the potential for other issues to arise, noting that other arguments were outside the court’s directive. He and his neighbors hope they can have issues such as building setbacks and the allowance for parking in the cell-tower fall zone included in a zoning appeal. His group’s goal is to push for an Environmental Impact Statement (EIS), which are typically the purview of much larger projects like the Chain Works District and Cornell’s 2,000-bed North Campus expansion. They’re not killing the project explicitly, but the cost and time required to do an EIS is an implicit way to achieve the same effect.

As for where it goes from here, stop-work order debate aside, the Zoning Division now has to “show its work.” The office needs to publish its findings on how it came to its decision that variances weren’t required, therefore sufficiently responding to the administrative appeal. Things like slope and impermeable surface coverage and the cellphone tower aren’t likely to make it beyond a basic review, as either the Planning Board covered them in 2019, or the law is pretty explicit – for instance, structures aren’t allowed in cell phone tower fall zones, and parking lots are not structures. But if it turns out the procedure was unsatisfactory for calculating the need for building setbacks, the project may then have to visit the BZA, even though it’s already undergoing foundation work. If it turns out Leonardi’s work was fine, then it’s only an example of how municipal oversight can turn into a major headache.

“The BZA and the city and Svante (Mayor Myrick) and the city council should know what happens when their own processes aren’t followed. I think Gino Leonardi erred and overstepped his authority, and that created a kink in this whole process…if this process had been followed, then a whole lot of time, energy, money and pain could have been avoided,” said Belmont.

Brian Crandall

Brian Crandall reports on housing and development for the Ithaca Voice. He can be reached at bcrandall@ithacavoice.com.