HomeMy WebLinkAboutMN-BPW-2011-12-21BOARD OF PUBLIC WORKS PROCEEDINGS
CITY OF ITHACA, NEW YORK
Regular Meeting 4:45 p.m. December 21, 2011
PRESENT:
Mayor Peterson
Commissioners (5) - Jenkins, Wykstra, Morache, Warden, Goldsmith
OTHERS PRESENT:
City Attorney - Hoffman
Superintendent of Public Works - Gray
Assistant Superintendent of Streets and Facilities - Benjamin
Assistant Superintendent of Water and Sewer – Whitney
Common Council Liaison – Zumoff
Information Management Specialist - Myers
Alderperson Rooker
Alderperson Dotson
Alderperson Rosario
Alderperson Myrick
EXCUSED:
Commissioner Acharya
DAC Liaison – Roberts
ADDITIONS OR DELETIONS TO AGENDA
Supt. Gray requested the addition of the “Occupy Ithaca Appeal” for the Use of DeWitt
Park to the agenda.
No Board Member objected.
Supt. Gray further requested the deletion of the following items from the agenda:
• Appeal of Sidewalk Assessment for 401 Columbia Street
• Appeal of License Fee for 339 Elmira Road (Old Salvation Army site)
• Appeal of License Fee for 210 Hancock Street (Old P&C Store)
• Appeal of License Fee for 344 Elmira Road (Garcia’s Restaurant)
• Recommendations to Divest Unused City Property, Part 4 – Resolutions
No Board Member objected.
He further noted that an amended resolution had been distributed for item 8.2A entitled
“Award of Bid for the Annual Chemical Requirements – Resolution”
Commissioner Goldsmith suggested that the approval of the September 28, 2011,
October 19, 2011, and November 14, 2011 minutes be postponed until the January 11,
2012 meeting – because of the time that will be needed to hear and discuss the Occupy
Ithaca Appeal.
No Board Member objected.
MAYOR’S COMMUNICATIONS:
Mayor Peterson reported that she received a press release today prepared jointly by the
U.S. Army Corps of Engineers' Buffalo and Pittsburgh Districts dealing with
unsatisfactory levees in New York State within the areas of responsibility of the two
districts. The U.S. Army Corps of Engineers (USACE) Buffalo and Pittsburgh
Districts have issued unacceptable ratings for certain flood risk management projects
located within their area of responsibility in New York State due to deficiencies identified
during inspections performed in 2010. Flood risk management projects are rated
unacceptable when one or more deficient conditions are cited that might prevent the
project from functioning as designed. The project and its associated primary
deficiencies are outlined below:
2
December 21, 2011
Project Location: Cayuga Inlet Ithaca, NY
Identified Deficiencies: Excessive shoaling; deteriorated riprap; excessive vegetation
growth.
An unacceptable rating means that the project is categorized as inactive in the
Rehabilitation and Inspection Program (RIP) and, therefore, ineligible to receive federal
assistance for project repairs necessitated by storm or flood events. However, recent
changes to the U.S. Army Corps. of Engineers (USACE) Levee Safety Program include
the new System-Wide Improvement Framework (SWIF) policy which affords a sponsor
an opportunity to develop a plan to correct maintenance deficiencies and implement
broader system-wide improvements to their levee systems, while remaining eligible for
program assistance in the event that their project gets damaged during a storm or flood
event.
Upon acceptance into the SWIF program by USACE, the project becomes active again
so long as planned milestones related to correction of deficiencies and improvements to
the system are met. The sponsor for the above-named project, New York State
Department of Environmental Conservation (NYSDEC), is responsible for operating and
maintaining the project and correcting the cited deficiencies. NYSDEC has indicated the
state intends to enter into a definitive framework to expeditiously address the
longstanding deficiencies identified at these facilities. This will be accomplished through
the USACE newly developed SWIF program and the infrastructure legislation enacted
by Governor Cuomo and the state Legislature in early December.
Representatives of USACE will meet with NYSDEC officials this month to discuss the
SWIF policy and develop letters of intent, as required by the SWIF policy, as the first
step in the process toward correcting the identified deficiencies.
DEC will continue to operate and maintain these projects to ensure the safety of the
individuals and properties they were designed to protect.
COMMUNICATIONS AND HEARINGS FROM PERSONS BEFORE THE BOARD:
The following people addressed the Board of Public Works to express their support for
the “Occupy Ithaca” appeal:
Neil Oolie, City of Ithaca
Josh Dolan, City of Ithaca
Logan Bell
Amanda Maretti, City of Ithaca
Joel Harlan, Town of Newfield
John Hamilton, City of Ithaca
Nicholas Sledziona, Town of Ithaca
David Burak, Venice California
The following people addressed the Board of Public Works to express their opposition
to the “Occupy Ithaca” appeal:
Holly Hollingsworth, Town of Caroline
Dick Booth, City of Ithaca
Marty McElwee addressed the Board regarding his appeal of a license fee for 340-344
Elmira Road.
RESPONSE TO THE PUBLIC:
Commissioner Wykstra thanked the speakers for their comments. He encouraged the
Board to make a decision regarding the Occupy Ithaca appeal in respect for the people
at the meeting today.
3
December 21, 2011
APPROVAL OF MINUTES:
Approval of the minutes of the September 28, 2011, October 19, 2011, and
November 14, 2011 Board of Public Works Meeting – Resolution
The Board did not have time to approve the minutes at today’s meeting. They will be
placed on the January 11, 2012 Board of Public Works Meeting agenda.
Recommendation to Divest Unused City Property, Part 4 - Resolution: Parcel 68.-
2-9.2 – 700 Block East Seneca Street
This item was removed from the agenda
Appeal of Sidewalk Assessment for 105 Worth Street – Resolution
By Commissioner Goldsmith: Seconded by Commissioner Wykstra
WHEREAS, Robert E. Terry, owner of 105 Worth Street, received a 2010 sidewalk
assessment for sidewalk work completed adjacent to his property, and
WHEREAS, Robert Terry received sidewalk defect notices in 2007, 2008, 2009, and
communicated with staff regarding his concerns before and after the work, and
WHEREAS, Robert Terry filed a written appeal on 12/31/10 asking to remove the 25%
surcharge and another written appeal on 4/1/11 asking for the full assessment to be
waived or the sidewalk to be completely replaced, and
WHEREAS, staff met with Robert Terry on site, and reviewed information provided by
him regarding the appeal, now therefore be it
RESOLVED, That the Board of Public Works recognizes that City forces completed the
sidewalk replacement work in accordance with City specifications, and be it further
RESOLVED, That each protest reason was considered as shown in the Sidewalk
Assessment Protest Summary for this address, and be it further
RESOLVED, That the Board of Public Works hereby denies the request to revise the
sidewalk assessment for 105 Worth Street.
Property owners, Robert Terry and Karla Terry, joined the Board for the discussion of
their appeal. Mr. Terry provided a history of the sidewalk work that was done and the
reason for the appeal.
There was discussion back and forth between the Terry’s and the Board regarding the
reason for their appeal.
A Vote on the Resolution Resulted as Follows:
Ayes (5) Wykstra, Goldsmith, Jenkins, Warden, Morache
Nays (1) Peterson
Abstentions (0)
Carried
OCCUPY ITHACA APPEAL:
Phillip Price, applicant for the “Occupy Ithaca” appeal of the Superintendent of Public
Works’ denial of their permit request for the use of DeWitt Park read, for the record,
their appeal as follows:
Appeal of the
City of Ithaca's denial of Occupy Ithaca's Request to Use City Park
(tracking number 4442120111)
The City of Ithaca's denial of Occupy Ithaca's Request to Use City Park for the use of
Dewitt Park by Occupy Ithaca was arbitrary and capricious, and deprived the applicant
of its rights to due process and equal protection under the Constitution of the United
States.
4
December 21, 2011
The City failed to follow its well-established procedures for dealing with an application of
the type submitted by Occupy Ithaca. When an applicant submits paperwork which
requires the approval of three or more City agencies, a City of Ithaca practice, policy,
procedure, and/or promulgated rules and regulations specify that an events team shall
be assembled to liaise and work with the applicant.
Occupy Ithaca's application to use a City Park required the approval of the City of
Ithaca's Superintendent of Public Works, and, according to the denial letter, the City of
Ithaca Building Department and the City of Ithaca Fire Department. Thus, the City of
Ithaca should have assembled an events team to process the permit, and not left it to
just the Superintendent of Public Works to decide all by himself. By having just the
Superintendent of Public Works rule on the permit, the City of Ithaca deprived the
applicant of its rights to due process and equal protection under the law as guaranteed
by Constitution of the United States. When reviewing event permits the City of Ithaca's
practice, policy, procedure, and/or promulgated rules is not to simply accept or reject
applications. With other applications, city staff works with the applicant and helps the
applicant adjust their event so that it does not overly conflict with the needs of other
citizens. This is especially the case with a special events team project. While the event
team has helped an applicant modify their events, we are not aware of a single instance
where a permit was denied. Instead, City staff offers alternatives to problematic aspects
of the event. It is unprecedented for the City of Ithaca to simply deny an application
before trying to work with the applicant.
Specific responses to the specific points in the denial letter:
1. The City of Ithaca denial letter states that "Allowing tents to be in place for extended
time would tend to interfere with the public's right to use of a substantial portion of the
park". This language is far too vague for anyone to understand what is acceptable and
what is not. The city is not stating that the intended use will interfere with the public’s
right to use the park, but that “would tend”, in other words, “it might” stretch into such a
situation. The city needs to judge the application on what the applicant intends on
doing, not on what it might become. If the city has concerns on a direction the event
might take, it should stipulate in the permit that such a direction is impermissible.
Further, the term “substantial” is not defined. How much of the park could the
encampment occupy before it became “substantial?” The answer has to be based on
some policy, law or rule, not the arbitrary opinion of the Superintendent of Public Works
and/or the City Attorney.
Nor, given the fact that the public is openly invited to be a part of all aspects of Occupy
Ithaca’s event, does the city specify what specific use of the park the public is not being
allowed to use. The deed of the DeWitt Park to the City of Ithaca requires that the park
be open as “a public walk and promenade.” At all times the walkways are clear for
public use, so the main use of the park is not in any way impeded. Since the main use
of DeWitt Park remains unchanged, it is unclear the public’s use of the park has been
“substantially” altered.
2. The City of Ithaca denial letter states that “Keeping tents in place and heavy use thus
engendered is damaging the lawn”. Anyone who is familiar with the area in question is
well aware that there is virtually no grass in the area where the tents are; which is why
the applicant chose that spot for the tents in the first place. Further, the city could
simply require that the tents be moved every few days to allow whatever grass is
actually growing access to sunlight. These issues are typically dealt with by modifying
the permit application, not for denying a permit.
3. The City of Ithaca denial letter argues in point #1 that the public is being deprived of
its use of the park by this activity, and in point #2 that the park is not capable of handing
the number of people that the Occupy Ithaca event would bring to the park. In point #2.
The City of Ithaca needs to decide whether its decision to deny is based on too much
use of the park or not enough.
5
December 21, 2011
4. The City of Ithaca denial letter states that "Park use is not allowed between 10 pm
and 5 am (without a special waver)." The applicant is well aware of this rule, and
specifically asked for such a waver in the permit application: "We request to exercise
our first amendment rights after 10 pm -waiver of park curfew". The city has granted
such a waver in the past to Ithaca Festival, allowing both tents and Ithaca Festival
personnel in the park throughout the night. The City of Ithaca simply reiterated the rule,
including a statement that wavers are granted to the rule, without giving any specific
reasons why it was not granting Occupy Ithaca a waiver. The City of Ithaca denial letter
does not indicate that the City of Ithaca's Superintendent of Public Works even
considered the waiver request at all.
5. The City of Ithaca denial letter asserts that "Chapter 336 requires any permitteeto
provide proof of liability insurance". Actually, the code states:
"(1), General liability insurance shall be required in an amount to be determined by the
issuing agent for activities that include any of the following:
(a) A risk that participants or attendees could be injured based on the nature of
the activity.
(b) Sale or consumption of alcoholic beverages.
(c) Potential damage to City property."
The city failed to show that any of these points apply to the applicant. It cannot assert
the need for insurance without showing that the event will fall into one of the three
above categories and specifying what insurance is necessary to indemnify the city.
6. The City of Ithaca denial letter asserts that "Camping is not a permitted use in the
city, per zoning ordinance." The city failed to cite specifically in city code where camping
is prohibited in the city. "Tents" are not specifically mentioned anywhere in the zoning
law. The only reference to "camping" is to "camping trailers," a use the applicant has not
asked for. It is not a prohibited use under chapter "336 Use of parks; permit application;
general liability insurance," making it unclear where this "park specific, no camping" rule
comes from or if it actually exist at all. Further, the city knowingly allows camping within
the city. City officials are well aware that there is an ongoing campground behind
Wegmans, commonly known as "the jungle". Additionally, City officials are aware that
twice a year people set up tents on city sidewalks on Esty Street to be in line for the
Friends of the Library Sale. Not only has the city failed to cite a specific prohibition it
also fails to explain why it is selectively enforcing the "prohibition" on camping to
Occupy Ithaca and not these other groups.
7. The City of Ithaca denial letter asserts that "Residential facilitates are not a permitted
use in parks." First, it is unclear where this prohibition is, as Chapter 336 is silent about
residential facilities. Second, the application did not request residential facilities.
8. The City of Ithaca denial letter states that "Residential use requires appropriate
sanitary facilities." All events that have large numbers of people over extended time
periods require sanitary facilities. No other groups permit application has been denied
as a result of this need. The City of Ithaca has made no effort, as it has with other
applicants, to determine what faculties are necessary. Currently, nearby residents have
opened their buildings so people can use their bathrooms. Occupy Ithaca is interested
in establishing a location for a port-a-potty and is willing to work with the city on a
suitable location. Questions such as this one, is why the city assembles an event team,
to gather the knowledge of different departments to figure out the best solutions to such
problems.
9. The City of Ithaca denial letter states that “Large tents require building or fire
department approval.” Again, this is not a reason to turn down this application. When
other applications are deemed to need multiple permits, a special team is established to
deal with all the permits together. The City of Ithaca needs to treat Occupy Ithaca's
permit the same way it treats other applications.
6
December 21, 2011
10. The City of Ithaca denial letter states that "Allowing the requested 'occupation,'
especially for an extended period of time, is not consistent with maintaining the park as
primarily 'a contemplative space in keeping with [the park's] function as a veterans'
memorial and a common space for several churches.' and as a 'quiet use park."' The
city has no established criteria to determine if an event is consistent with maintaining
the park as primarily 'a contemplative space’. The city inconsistently applies this
standard from one group to the next. Thus, Ithaca Festival is allowed to set up a stage
with a sound system and the city determined that it was consistent with a "quiet use
park". Yet when Occupy Ithaca requests a permit for an event with no sound system, it
is told that it is inconsistent.
11. The City of Ithaca denial letter asserts that "the City has not allowed individuals or
groups to be in the Park during closed hours." This statement is simply false. The City
has allowed Ithaca Festival access to the park 24 hours a day when it is holding an
event in the park.
12. The City of Ithaca denial letter states that "the City has not allowed tents to be
maintained in the Park, and has only allowed canopies for more than two or three days
(and only as part of a participatory festival)." Again, the city has no criteria for what is
acceptable use or not. The two or three day limit only appeared when Occupy Ithaca
made its application. The city cannot create a rule just because it does not like an
application (Assuming this rule actually exists at all, see #6 above).
13. The City of Ithaca denial letter states that "Parkland continuously 'occupied' by a
certain group (or physical structures), for non-recreational purposes and for weeks,
prevents or interferes with its use by the public at large." The city's statement here
implies that if the application were for recreational purposes, it would be ok. The city is
implicitly stating that the fact that the applicant wants to exercise their first amendment
rights to free speech is a reason for the denial, if they were only asking for a permit to
recreate, their application would be fine.
Further, other cities in New York have had no such problems issuing permits to similar
occupation groups. Both the City of Rochester and the City of Buffalo have permits for
Occupy groups to use parkland within their boundaries for long term occupation. Both
permits have specific language that requires the group to keep space open for the
public at large. The Buffalo permit further requires the Occupy group to vacate the park
when another group wants to hold a larger event in the park. City of Ithaca officials are
well aware of these other agreements.
14. The City of Ithaca denial letter states that "I am told that there have been repeated
instances of loud drumming at the encampment indicating an inability on the part of the
applicant to comply with the 'quiet use' expectation." There was one incident of
drumming in the middle of the afternoon. When the applicant was told this was a
problem, the drumming ceased, and has not been repeated. Again, the permit could
have specifically stated that drumming is not allowed, if such activity was of concern to
the City of Ithaca officials.
15. The City of Ithaca denial letter states that "I note for the record that neither permit
application was submitted in advance of your group's commencement of use of the park
(for tents, etc), which is a requirement." We note for the record, that this was understood
by the City of Ithaca when the Mayor specifically asked the group to fill out an
application. To add this as grounds for denial indicates that the City of Ithaca officials
did not process this application in good faith.
We Hereby ask the Board of Public Works to overturn William J. Gray's denial of our
application. We further ask that the Board direct the City of Ithaca to treat Occupy Ithaca
as it does other applicants, and convene a Special Events Task Force to work with the
Occupy Ithaca organization to create an event that conveys Occupy Ithaca's message
to the public it wishes to reach.
Phillip Price (Occupy Ithaca)
****************************************************************************************************
7
December 21, 2011
Supt. Gray stated that the “Occupy Ithaca” group did not follow the same procedure
other groups do for an upcoming large event. They asked for a permit after the fact –
after they had established an encampment at DeWitt Park, and violated the rules of the
park being closed between 10 pm and 5 am. He further stated that the “Occupy Ithaca”
group should remove everything that they currently have set up in DeWitt Park; apply
for a special event permit through the normal application process, and a meeting of the
team would be scheduled to review their request.
Mr. Price responded that when their initial permit application was submitted, they were
asked to withdraw it, comply with the regulations of the park in their request, and
resubmit the permit application.
City Attorney Hoffman explained that Supt. Gray did discuss their permit application with
him. After that discussion, he produced a legal opinion on the request and has been
involved in discussions with the “Occupy Ithaca” group and a local attorney who was
initially thought to represent Occupy Ithaca but subsequently declined to do so. He
stated that in the second application that was submitted the group did not indicate how
long the event would last; they did not specify the number of structures that would be
erected in the park, nor the twenty-four use of the park. The second permit application
did, however, remove the request for free parking, and the provision of toilet facilities by
the city, but it did request an automatic renewal of the permit every 2 weeks. The City
of Ithaca has continued discussions with “Occupy Ithaca” representatives regarding the
possibility of relocating to other city-owned, non-parkland sites. The discussions are
ongoing; however, the City does experience fairly long delays in the response back from
the “Occupy Ithaca” group – especially in regard to discussing other possible sites for
the encampment. He further explained that the Public Trust Doctrine is being violated
by the fact that a private group is having exclusive use of the park, which is prohibited. If
another non-park site were chosen, it would remove that major concern.
Mayor Peterson explained to the Board that in anticipation of today’s meeting, the City
Attorney has prepared two resolutions for their consideration regarding this appeal.
One would support the denial and the other would reverse the decision.
Extensive discussion followed on the floor with various Board members expressing
support for the decision made by Superintendent Gray to deny the permit application, as
well as support for the “Occupy Ithaca” groups movement here and across the nation.
There was discussion about the need for additional information from other municipalities
who have allowed “Occupy” groups to use city property for their movement and what
they are doing.
Further discussion followed on the floor regarding the Board’s responsibility to protect
the park and uphold its rules by supporting the decision of the Superintendent of Public
Works.
Mr. Price thanked the Board for their comments. He explained the reason for their
wanting a waiver to the park rules between 10 pm and 5 am is because the “Occupy
Ithaca” group has a lot of its belongings in the tents and structures set up there. In
addition, the area is patrolled by both the City of Ithaca Police Department and they
have one member of their group who spends the night in the park to watch everyone’s
belongings. He stated that they do a lot of outreach and information sharing to the
public during the late night and by being in the public view at the park it enables them to
do that better.
City Attorney Hoffman reminded the Board that putting off a decision until later does not
change the fact that there is no permit issued for the use of this public park, therefore, it
is being used illegally by a private group of people.
The Board had to end the meeting before making a decision because another meeting
was beginning at 7:00 p.m. The Board called for a meeting on Wednesday, December
28, 2011 at 4:45 p.m. to continue discussion of the appeal.
8
December 21, 2011
WATER AND SEWER:
Award of Bid for the Annual Chemical Requirements – Resolution
By Mayor Peterson: Seconded by Commissioner Jenkins
WHEREAS, Staff received bids for the 2011-2012 Chemical Requirements on Tuesday
November 22, 2011, and
WHEREAS, Based on this information, staff has recommendations for award of bids;
now, therefore be it
RESOLVED, That the Board of Public Works hereby accepts staff’s recommendations
to award the 2011-2012 Chemical Requirements as follows:
Chemical Vendor Price (per unit)
Primary Coagulant, per gal Holland Co. Inc. $1.922/gal
Corrosion Inhibitor, per gal Coyne Chemical $8.980/gal (Will be awarded separately)
Potassium Permanganate, per lb Surpass Chemical Co. $2.195/lb
Ferrous Chloride, per lb of iron per gal Gulbrandsen Technologies, Inc. $0.342/lb-Fe/gal
Ferric Chloride, per gal Kemira Water Solutions, Inc. $1.540/gal
Gas, Sulfur Dioxide, per lb Amrex Chemical Co. $0.720/lb
Liquid Sodium Hypochlorite, per gal Bison Laboratories, Inc. $0.730/gal
and, be it further
RESOLVED, That the Board hereby authorizes the Assistant Superintendent of Public
Works for Water and Sewer to enter into agreements (purchase orders) for the bid
awards.
Carried Unanimously
ADJOURNMENT
On a motion the meeting adjourned at 7:00 p.m.
Sarah L. Myers Carolyn K. Peterson
Information Management Specialist Mayor