HomeMy WebLinkAboutMN-CC-1991-09-04COMMON COUNCIL PROCEEDINGS
CITY OF ITHACA, NEW YORK
Regular Meeting 7:00 p.m. September 4, 1991
PRESENT:
Mayor Nichols
Alderpersons (10) - Booth, Johnson, Golder, Hoffman, Peterson,
Daley, Cummings, Blanchard, Romanowski,
Schroeder
OTHERS PRESENT:
City Clerk - Paolangeli
City Controller - Cafferillo
Deputy City Controller - Thayer
Planning and Development Director - VanCort
Police Chief - McEwen
Youth Bureau Director - Cohen
Personnel Administrator - Saul
(�• Fire Chief - Olmstead
(o Acting Building Commissioner - Eckstrom
City Attorney - Guttman
-� Acting Superintendent of Public Works - Gray
m County Board of Representatives - Lerner
Q PLEDGE OF ALLEGIANCE:
Mayor Nichols led all present in the Pledge of Allegiance to the
American flag.
MINUTES:
Approval of Minutes of the August 7, 1991 Common Council Meeting
By Alderperson Johnson: Seconded by Alderperson Romanowski
RESOLVED, That the Minutes of the August 7, 1991 Common Council
meeting be approved as published, with the wording of the Resolved
(400'.1 Clause on page 6 (Item 15.2 - Location of New Street - Main Motion
as Amended) to be clarified.
Carried Unanimously
ADDITIONS TO OR DELETIONS FROM THE AGENDA:
New Business
Alderperson Peterson referred to the Item under New Business,
Appeal to Common Council Regarding Denial of the Vacancy Committee
to Fill a Youth Worker Position (Teen Program- GIAC). She reported
that the matter has been resolved within the Vacancy Committee and
the position will be filled; therefore the item is withdrawn from
the agenda.
MAYOR'S APPOINTMENTS:
Re- apportionment Committee
Mayor Nichols requested approval of Council for the appointment of
the following persons to the Re- apportionment Committee:
Ray Schlather - Ward 1 - 201 Sunrise Road
Bill Myers - Ward 2 - 313 Hudson Street
Ann Clavel - Ward 3 - 109 Cornell Street
John Marcham - Ward 4 - 414 East Buffalo Street
Frank Moore - Ward 5 - 116 Dearborn Place
Tony Poole - Ward 5 - 107 West Jay Street
(400" Jean Cookingham - Ward 2 - 119 East Buffalo Street
Keith McNeil - Ward 1 - 139 Oakwood Lane
Cassandra Nelson - Ward 2 - 502 South Albany Street
Resolution
By Alderperson Johnson: Seconded by Alderperson Blanchard
RESOLVED, That this Council approves the appointment of the above -
named persons to the Re- apportionment Committee.
Carried Unanimously
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September 4, 1991
PETITIONS AND HEARINGS OF PERSONS BEFORE COUNCIL:
City Budget
Guy Gerard spoke to Council regarding the attrition policy that
Council put in place to help close the budget gap. He asked
Council to consider putting a cap on the number of employees each
department might lose.
GIAC P001
Guy VanBenschoten, 602 North Cayuga Street, spoke to Council and
outlined his reasons for not supporting the resolution regarding
the GIAC Pool. He urged Council not to pass this resolution.
Save Our Strand
Paul Sayvetz, 201 Elm Street, representing "Save Our Strand ",
extended an invitation to Council members and the public to attend
a public forum which will include a representative from the League
of Historic American Theatres on September 9th at 7:30 p.m. in the
second floor Conference Room of City Hall.
RESPONSE TO THE PUBLIC:
GIAC Pool
Mayor Nichols stated that what is being proposed is a neighborhood
pool. It may be across from GIAC, it may be used for GIAC programs
but it is a neighborhood pool that may be used by all members of
the community.
Alderperson Romanowski stressed the importance of the understanding
that the proposed pool will be a municipal pool that will be
serving a neighborhood.
REPORT OF BOARD OF REPRESENTATIVES:
Mr. Eric Lerner, 1st Ward Rep. of the City updated Council on the
following items:
1992 Budget Cycle - The County is entering the first phase of the
1992 budget cycle. They are going to have to respond to the rather
painful State budget cuts as well as growing expenses that for the
County come directly from the recession. The County is hoping to
avoid lay -offs but at this point it is not clear if they will be
able to do that.
Off -Track Betting - The Board has approved going forward with Off -
Track Betting in Tompkins County, which would hopefully generate
some revenue for the County. It will be subject to a permissive
referendum at the next general election if a sufficient number of
signatures are gathered within the next 45 days.
Bus Garage - The cooperative City, County, Cornell bus garage
project has been moving forward and is about ready to go out for
bid.
Job Training Program - The County is running into some complex
problems with the Job Training Program. The Board may have to re-
think the entire program.
Local Unit Pricing Legislation - The Board is taking a serious look
at local unit pricing legislation so the consumer can tell the
price of the things they are buying in a reliable way.
Local Law C, Gav and Lesbian Fair Practice Ordinance - There is a
group working on a revised version of the Fair Practices Ordinance
and it probably will be back before the Board before the end of the
year.
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September 4, 1991
REPORT OF CITY BOARDS, COMMISSIONS AND COMMITTEES•
Board of Public Works
Mayor Nichols read the following resolution that was passed
unanimously at the BPW Committee of the Whole meeting today:
"WHEREAS, the Downtown Ithaca Inc. has urged that the
reconstruction work on The Commons be done in the Spring of 1992,
and
(4000e WHEREAS, this Board sees no engineering disadvantages to a Spring
or Summer project; now, therefore, be it
RESOLVED, That The Commons reconstruction be delayed to the Spring
or Summer of 1992, and be it further
RESOLVED, That all bids received for the reconstruction of The
Commons be rejected, and be it further
RESOLVED, That an opportunity be given to the groups that may be
CD affected by reconstruction work on The Commons in the Spring or
CD Summer, to present their views to the Board before the project with
revised construction schedule is submitted for bids, and be it
further
m
Q RESOLVED, That Common Council be requested to amend the Capital
Project Budget for The Commons reconstruction to provide sufficient
funds to complete the entire project."
Mayor Nichols explained to Council why the project is being delayed
and answered questions from Council.
Disability Advisory Council
LeMoyne Farrell, representing DAC, thanked Council for the
automatic door openers that have been installed in City Hall.
Ms. Farrell thanked Acting Supt. Gray for his interest in the
proposed improvements for the handicapped at Stewart Park.
Ms. Farrell reported on a workshop that was held in Syracuse in
August regarding enforcement of handicapped parking by volunteers.
Ms. Farrell stated that the DAC is considering public announcements
regarding the necessity of clearing sidewalks of ice and snow in
the winter, etc.
BUDGET AND ADMINISTRATION COMMITTEE:
* 16._5_ Request to Increase Authorization of Capital Project #217
GIAC Pool Project
By Alderperson Booth: Seconded by Alderperson Schroeder
WHEREAS, the conceptual design of the GIAC Pool project has been
completed, and
RESOLVED, That Capital Project #217 for the construction of the
GIAC Pool be amended from $450,000. to a maximum cost of $520,000.,
and be it further
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WHEREAS,
based on
said design, the Client Committee has recommended
that the
original
project authorization of $450,000. be amended to
reflect
a revised scope of work and the corresponding projected
increase
in cost,
and
(600",
WHEREAS,
due to
budgetary constraints, the B &A Committee has
recommended
certain
further economies should be made in the design
of the facility;
now, therefore, be it
RESOLVED, That Capital Project #217 for the construction of the
GIAC Pool be amended from $450,000. to a maximum cost of $520,000.,
and be it further
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RESOLVED, That the additional $70,000
September 4, 1991
be financed as follows:
A. Down payment of $3,500. shall be transferred from Account
A1990 Unrestricted Contingency.
B. The balance of $66,500 shall be derived from the issuance
of Serial Bonds.
Amending Resolution
By Alderperson Schroeder: Seconded by Alderperson Daley
RESOLVED, That the first Resolved Clause be amended to read as
follows:
"RESOLVED, That Capital Project #217 for the construction of the
GIAC Pool be amended from $520,000. to a maximum cost of $550,000.,
for the purpose of including the corner pavilion ", and the figures
in the second Resolved Clause be changed accordingly.
Ayes (6) - Schroeder, Daley, Hoffman, Cummings, Golder,
Johnson
Nays (4) - Romanowski, Blanchard, Booth, Peterson
Carried
Main Motion as Amended
A vote on the Main Motion as Amended resulted as follows:
Ayes (5) - Schroeder, Daley, Cummings, Golder, Johnson
Nays (5) - Booth, Hoffman, Romanowski, Blanchard, Peterson
Mayor Nichols Voted Nay, breaking the tie.
Motion Fails
PLANNING AND DEVELOPMENT COMMITTEE:
*
17.3 City of Ithaca Municipal Pool - Exemption from Zoning
Ordinance Area Requirements
By Alderperson Hoffman: Seconded by Alderperson Schroeder
WHEREAS, a plan for a proposed City of Ithaca Municipal Pool has
been prepared and approved by the Client Committee and by the
Planning and Development Board; and
WHEREAS, Common Council has reviewed the schematic drawings and
approved a construction budget based on these drawings; and
WHEREAS, certain factors in the plan do not conform with the area
requirements of the Zoning Ordinance, including the parking
requirements and the front yard setback requirements; and
WHEREAS, pursuant to New York law as stated by the New York Court
of Appeals in the case of Matter of Monroe County and its progeny,
it is the responsibility of Common Council to determine whether it
must follow its own zoning regulations to balance the public
interests of a municipal project with the public interests of local
land use regulations; and
WHEREAS, Council has balanced the following factors with regard to
the City of Ithaca Municipal Pool:
1. Parking:
a. The mini pool has operated on the subject site since 1968
and has not caused parking problems for the neighborhood.
b. Most of the users of the City of Ithaca Municipal Pool
will be neighborhood residents and, therefore, very few users of
the pool will drive to the site.
C. Construction of additional parking at the site would
require the paving of existing green space which is an important
recreational asset for the neighborhood.
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September 4, 1991
d. During the summer months when the pool will be in
operation, there are currently no parking problems in the
neighborhood.
2. Side Yard Deficiencies:
a. The placement of the pavilion at the corner is necessary
to meet its function as a community gathering space.
b. Careful analysis of the design has demonstrated that no
vehicular visibility problems will be caused by the placement of
any improvement on the site.
c. Relocation of the structures to meet area zoning criteria
would seriously compromise the design goals of the project.
3. The non - conformities to the Zoning Ordinance represent a
relatively minor deviation from the area requirements.
4. The development of this project as planned would produce a
co substantial positive change to the neighborhood.
M 5. The development of this project as planned will result in the
immediate improvement of the delivery of governmental services to
m the neighborhood.
Q
6. The neighborhood to be benefitted by a Municipal Pool includes
a proportionately high percentage of low- income, single parent
families with a high proportion of school age children for whom the
existence of the pool is an extremely important resource.
7. Any redesign of the project to meet the zoning requirements
would delay completion of the project and the opening of the pool
(40e, beyond December of 1992 which would severely negatively affect the
neighborhood;
now, therefore, be it
RESOLVED, That the construction of a City of Ithaca Municipal Pool
as currently designed is exempt from the area requirements of the
Zoning Ordinance.
Alderperson Romanowski spoke in opposition to waiving the zoning
requirements for this project. He stated, for the record, "If our
zoning requirements are so inflexible that all people are not able
to work on projects, no matter who they are, within a framework
which is able to make allowances for the common good, then maybe
there requirements should be changed in the Zoning Ordinance. If
we have elements of this particular project that need to be
addressed pertaining to meeting zoning requirments, let us do that.
By waiving our Zoning Ordinance in relation to this project because
it is a municipal or governmental project invites justifiable
criticism from the private sector that we are establishing a double
standard and for this reason I am going to vote against this. I am
not voting against this because I think the project is bad or any
other element in the project but because we have a double standard
as far as government and the private sector are concerned and I
think that is wrong."
Extensive discussion followed on the floor with GIAC Director Fort
and Planning and Development Director VanCort answering questions
from Council members.
Alderperson Booth referred to a memo that he sent to the Mayor and
Council members and explained in detail his reasons for objecting
to this waiver of the Zoning Ordinance. (A copy of the memo is
attached to the Minute Book).
5
City Attorney Guttman responded
regarding the Zoning ordinance
waive the same.
September 4, 1991
to Alderperson Booth's remarks
and the right of the Council to
Further lengthy discussion followed on the floor with Alderpersons
expressing their opinions the regards to he Zo i g ordinance and
whether or not the City as
ct
Alderperson Schroeder noted
his reasons bforotfeeling tthe pzoning
and explained in de A complete text of his statement
requirements should be waived. ( P
is attached to the Minute Book).
that
Further discussion folfoog the dresolutioneterNo Cougngcile member
item 2a be stricken
objected.
Amending Resolution
By Alderperson Peterson: Seconded by Alderperson after Blanchard the words
RESOLVED, That in the last Resolved Clause,
"currently designed ", the words "without the pavilion" be added.
Discussion followed on the floor on the pros and cons of adding the
pavilion to this project.
A vote on the Amending Resolution resulted as follows:
Ayes (5) - Blanchard, Romanowski, Peterson, Booth, Hoffman
Nays (5) - Daley, Cummings, Johnson, Schroeder, Golder
Mayor Nichols voted Nay, breaking the tie.
Motion Fails
After further discussion, the vote on the ,Main Motion as Amended
resulted as follows:
Ayes (5) - Johnson, Golder, Daley, Cummings, Schroeder
Nays (5) - Booth, Hoffman, Peterson, Blanchard, Romanowski
Mayor Nichols voted Aye, breaking the tie.
Carried
Mayor Nichols, for the record, stated that he does not think the
it
Council made any mistakes. He thinks it is a good
Jhdesign; the
serves the neighborhood and the people of the City,
intention of the Zoning Law. He said that he voted against the
pavilion because he thought it complicated the issue. He further
stated that he will have no trouble defending this to anybody in
the community and he does not expect to regret this at any time in
the future.
Recess
Common Council recessed at 8:35 p.m. and reconvened at 8:5 p.m.
HUMAN SERVICES COMMITTEE:
* 14.1 Cit 's Commitment to Human Service A encies
By Alderperson Johnson: Seconded by Alderperson Daley
WHEREAS, the City, families and individuals are feeling the effects
of the current economic crisis, and
WHEREAS, this crisis affects low- income families and individuals
more severely than others, and
WHEREAS, the human services agency portion of the City budget
attempts in part to help meet the needs of those families and
individuals, and
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September 4, 1991
WHEREAS, not providing or reducing needed services in times of
crisis to those populations eventually costs more to the City and
to the larger society, with increased crime, drug abuse, need for
welfare and unemployment benefits, etc., and
WHEREAS, the benefits of human service programs cannot be measured
in dollars, alone, and
WHEREAS, Ithaca prides itself on being a fair and caring community,
and
WHEREAS, the physical infrastructure of the city does not
deteriorate more quickly during economic hard times, while families
and individuals do, and
WHEREAS, funding of private volunteer agencies is one of the more
efficient uses of city funds; now, therefore, be it
RESOLVED, That Common Council asserts that human service agency
funding is of the highest priority, and be it further
RESOLVED, That
State funding
portion of the
budget, but as
further
in reducing the total City budget due to cuts in
and other shortfalls, the human service agencies
budget not be seen as equal to other parts of the
critical for assisting those in need, and be it
RESOLVED, That every attempt be made to fund the human service
agencies at the same level as last year.
Alternative Resolved Clauses
By Alderperson Booth: Seconded by Alderperson Blanchard
RESOLVED, That the following three Resolved Clauses replace the
three Resolved Clauses in the original resolution:
RESOLVED, That funding for human service agencies will be of the
highest priority in setting the 1992 City budget, such agencies
being those that have been recommended for City funding by the
Human Services Coalition as a result of a review conducted by the
Coalition on the City's behalf, and be it further
RESOLVED, That in setting the 1992 City budget Common Council shall
recognize that funding for said human service agencies is critical
for assisting those in need, and be it further
RESOLVED, That in setting the 1992 City budget Common Council shall
make every reasonable effort to provide a total amount of funding
for said human service agencies for both existing and any new
programs considered collectively, that is equal to the total amount
of funding committed to those purposes in the 1991 City budget
($147,738). Council does not hereby make any statement regarding
potential City funding that may be available to any particular
human service agency.
Alderperson Booth explained the three Resolved Clauses.
Discussion followed on the floor.
A vote to accept the three alternative Resolved Clauses in place of
the three Resolved Clauses in the original resolution resulted as
follows:
Carried Unanimously
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September 4, 1991
The Main Motion as Amended shall read as follows:
WHEREAS, the City, families and individuals are feeling the effects
of the current economic crisis, and
WHEREAS, this crisis affects low - income families and individuals
more severely than others, and
WHEREAS, the human services agency portion of the City budget
attempts in part to help meet the needs of those families and
individuals, and
WHEREAS, not providing or reducing needed services in times of
crisis to those populations eventually costs more to the City and
to the larger society, with increased crime, drug abuse, need for
welfare and unemployment benefits, etc., and
WHEREAS, the benefits of human service programs cannot be measured
in dollars, alone, and
WHEREAS, Ithaca prides itself on being a fair and caring community,
and
WHEREAS, the physical infrastructure of the city does not
deteriorate more quickly during economic hard times, while families
and individuals do, and
WHEREAS, funding of private volunteer agencies is one of the more
efficient uses of city funds; now, therefore, be it
RESOLVED, That funding for human services agencies will be of the
highest priority in setting the 1992 City budget, such agencies
being those that have been recommended for City funding by the
Human Services Coalition as a result of a review conducted by the
Coalition on the City's behalf, and be it further
RESOLVED, That in setting the 1992 City budget Common Council shall
recognize that funding for said human service agencies is critical
for assisting those in need, and be it further
RESOLVED, That in setting the 1992 City budget Common Council shall
make every reasonable effort to provide a total amount of funding
for said human service agencies for both existing and any new
programs considered collectively, that is equal to the total amount
of funding committed to those purposes in the 1991 City budget
($147,738). Council does not hereby make any statement regarding
potential City funding that may be available to any particular
human service agency.
Main Motion as Amended
A vote on the Main Motion as Amended resulted as follows:
Ayes (8) - Johnson, Daley, Cummings, Peterson, Romanowski,
Golder, Schroeder, Booth
Nays (2) - Blanchard, Hoffman
Carried
CHARTER AND ORDINANCE COMMITTEE:
* 15.1 A Local Law Amending Section 3.3 Entitled `Procedure at
Meetings Minutes; Quorum' of the Ithaca City Charter
By Alderperson Peterson: Seconded by Alderperson Romanowski
LOCAL LAW NO. OF THE YEAR 1991
CITY OF ITHACA
A Local Law Amending Section 3.3 of the Ithaca City Charter
�fs:s
September 4, 1991
BE IT ENACTED by the Common Council of the City of Ithaca, New
York, as follows:
Section 1. Amend Article 3 of the City of Ithaca Charter
Article 3, Section 3.3 of the Ithaca City Charter is hereby
amended to read as follows:
"Section 3.3 Procedure at Meetings: Minutes: Quorum
At all meetings of the Common Council, the Mayor, when
present, shall preside. In the proceedings of the Common Council,
each member present shall have a vote except the Mayor, who shall
have only a casting vote when the votes of the other members are
tied, and except as hereinafter provided. The sittings of the
Common Council shall be public except when the public interests
shall require secrecy. The minutes of the proceedings shall be
kept by the City Clerk, and the same shall be open at all times to
public inspection. A majority of the members of the Common Council
shall be quorum for the transaction of business. In the event that
(� fewer than ten members of Common Council vote on any substantive
question (if a member abstains from voting, it shall be considered
as if that member did not vote) the concurring vote of five or more
[�] alderpersons shall be sufficient to exercise any power which maybe
exercised by the majority vote of Common Council, but no tax or
assessment shall be ordered except by a concurring vote of majority
of all members of the Common Council in office, including the
Mayor, who shall be entitled to vote thereon as a member of the
Council, and no tax levied, assessment bill ordered, resolution or
ordinance shall take effect until the same shall receive the
approval of the Mayor, as hereinafter provided."
* 15.2 An Ordinance Amendinq Chapter 5 Entitled `City Officers and
Employees', Article IV Entitled `Reimbursement of Defense Costs of
City Employees for Civil Actions' of the City of Ithaca Municipal
Code
By Alderperson Peterson: Seconded by Alderperson Romanowski
ORDINANCE NO. 91-
An Ordinance amending Chapter 5 entitled "City Employees"
of the City of Ithaca Municipal Code
BE IT ORDAINED AND ENACTED BY THE COMMON COUNCIL OF THE CITY
OF ITHACA, NEW YORK, AS FOLLOWS:
(awoel Section 1. That Chapter 5, entitled "City Officers and
Employees" of the City of Ithaca Municipal Code is amended to add
a new Article to read as follows:
A new Article to be known and designated as Article IV, to
follow Article III, and is hereby added to said Chapter to read as
follows:
ARTICLE IV
REIMBURSEMENT OF DEFENSE COSTS OF CITY
EMPLOYEES FOR CIVIL ACTIONS.
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Section 2. Effective Date
This law shall take effect immediately
after filing in the
Office of the
Secretary of State.
Carried Unanimously
Mayor Nichols
stated that with the enactment
of this Local Law it
is necessary
to have the concurring vote
of at least five
alderpersons.
If it is a 5 -5 vote then the
Mayor could vote to
break a tie.
* 15.2 An Ordinance Amendinq Chapter 5 Entitled `City Officers and
Employees', Article IV Entitled `Reimbursement of Defense Costs of
City Employees for Civil Actions' of the City of Ithaca Municipal
Code
By Alderperson Peterson: Seconded by Alderperson Romanowski
ORDINANCE NO. 91-
An Ordinance amending Chapter 5 entitled "City Employees"
of the City of Ithaca Municipal Code
BE IT ORDAINED AND ENACTED BY THE COMMON COUNCIL OF THE CITY
OF ITHACA, NEW YORK, AS FOLLOWS:
(awoel Section 1. That Chapter 5, entitled "City Officers and
Employees" of the City of Ithaca Municipal Code is amended to add
a new Article to read as follows:
A new Article to be known and designated as Article IV, to
follow Article III, and is hereby added to said Chapter to read as
follows:
ARTICLE IV
REIMBURSEMENT OF DEFENSE COSTS OF CITY
EMPLOYEES FOR CIVIL ACTIONS.
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Section 5.40
September 4, 1991
Subject to the limitations set forth in subsequent sections of
this Article, the City of Ithaca desires to and hereby does provide
for the defense of its officers and employees, whether the employee
is sued individually or in his or her capacity as a City officer or
employee, in all civil actions and proceedings, whether in state or
federal court, based on acts or omissions alleged to have occurred
while the officer or employee was acting within the scope of his or
her duties for the City of Ithaca.
Section 5.41 Employee: The term employee shall mean any
commissioner, member of a public board or commission, trustee,
director, officer, employee, volunteer expressly authorized to
participate in publicly sponsored volunteer programs, or any other
person holding a position by election, appointment or employment,
including the City Attorney, in the service of the City of Ithaca,
whether or not compensated. The term "employee" shall include a
former employee, his or her estate or judicially appointed personal
representative.
Section 5.42 Limited Right to Defense: The City of Ithaca
shall defend or provide for the defense of its employees and
officers in any civil action or proceeding, State or federal,
arising out of any alleged act or omission which occurred or
allegedly occurred while the employee was acting within the scope
of his or her public employment or duties. This duty to provide
for a defense shall not arise where such civil action or proceeding
is brought by or at the behest of the City.
Section 5.43 Limited right to private representation:
Subject to the conditions set forth in the preceding paragraph, the
employee shall be entitled to be represented by private counsel of
his or her choice in any civil action or proceeding whenever the
City Attorney or other counsel designated by the City determines
that a conflict of interest exists; whenever a court, upon
appropriate motion or otherwise by special proceeding, determines
that a conflict of interest exists, and that the employee is
entitled to be represented by counsel of his or her choice; or
whenever the City determines that it is appropriate for the
employee to be represented by private counsel of his or her choice.
The City Attorney or other counsel designated by the City may
require, as a condition of the payment of the fees and expenses of
such representation, that appropriate groups of employees be
represented by the same counsel. Reasonable attorney's fees and
litigation expenses shall be paid by the City to such private
counsel from time to time during the pendency of the civil action
or proceeding with the approval of the Budget & Administration
Committee of Common Council.
Section 5.44 Disputes: Any dispute with respect to
representation of multiple employees by a single counsel or the
amount of litigation expenses or the reasonableness of attorney's
fees shall be resolved by a court upon motion or by way of a
special proceeding if it cannot be resolved by the employee and the
City Attorney or the Budget & Administration Committee.
Section 5.45 Duty to avoid default: Where an employee
delivers process and a written request for defense to the City
pursuant to Section 5.49 below, the City shall take the necessary
steps on behalf of the employee to avoid the entry of a default
judgment pending resolution of any question pertaining to the
obligation to provide a defense.
Section 5.46 Conditions on duty to defend: The duty to
defend or indemnify and save harmless prescribed by this Article
shall be conditioned upon:
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September 4, 1991
a. delivery by the employee to the City Attorney a
written request to provide for his or her defense together with the
original or a copy of any summons, complaint, process, notice,
demand or pleading, within ten (10) days after he or she is served
within such document, and
b. the full cooperation of the employee in the defense
of any such action or proceeding in defense of any action or
proceeding against the City based on the same act or omission, and
the assistance of the employee in the prosecution of any appeal.
Section 5.47 The benefits of this Article shall inure only to
employees as defined herein and shall not enlarge or diminish the
rights of any other party nor shall any provision of this Article
be construed to affect, alter, or repeal any provision of the
worker's compensation law.
Section 5.48 This Article does not in any way affect the
obligation of any claimant to give notice to the City as required
under Section 50 -e of the General Municipal Law or any other
provision of law.
Carried Unanimously
Postering Issue - Report
Alderperson Peterson reported that at the Charter and Ordinance
Committee meeting on September 12, the issue of postering will be
discussed.
BUDGET AND ADMINISTRATION COMMITTEE:
* 16.1 DPW Request to Amend 1991 Equipment List
By Alderperson Booth: Seconded by Alderperson Peterson
RESOLVED, That the Authorized Equipment List of the Department of
Public Works' Water and Sewer Funds be amended by adding one two -
way radio at $900 to the Water Fund authorized equipment list and
one two -way radio at $900 to the Sewer Fund authorized equipment
list, and be it further
RESOLVED, That the $1,800 be derived from available funds in the
following accounts:
F 8316 -225 Shop & Equipment Other Equipment $900
G 8116 -225 Shop & Equipment Other Equipment $900
to allow the acquisition of said equipment.
Carried Unanimously
* 16.2 Fire Department Request for Expenditure of Code
Reimbursement Funds
By Alderperson Booth: Seconded by Alderperson Peterson
RESOLVED, That the Authorized Equipment List of the Fire Department
be amended by adding two flat files with mounting base for $1,095
and one software upgrade for $100, and be it further
RESOLVED, That $1,195 be transferred from Account A690 -6 New York
State Building and Fire Code Aid to the following accounts:
A 3410 -225 Other Equipment
A 3410 -425 Office Expense
$1,095
$ 100
to allow for the acquisition of such equipment.
Carried Unanimously
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September 4, 1991
* 16.3 Finance De artment Request to Transfer Funds
By Alderperson Booth: Seconded by Alderperson Romanowski
WHEREAS, the City has received the final utility bill for Fire
Station No. 6 in the amount of $2,307.41 for the period of December
1990 through April 1991, and
WHEREAS, the City's portion of the utility bill, based on an
allocation of agencies occupying Fire Station No. 6 prior to its
closure in April 1991, is $449.23; now, therefore, be it
RESOLVED, That $449.23 be transferred from account A1990
Unrestricted Contingency to account A3410 -410 Fire Department
Utilities for the purpose of paying the City's portion of the final
utility bill for Fire Station No. 6. Carried Unanimously
* 16.6 Audit
By Alderperson Booth: Seconded by Alderperson Romanowski
RESOLVED, That the bills presented, as listed on Audit Abstract
16/1991 in the total amount of $55,940.63 be approved for payment.
Carried Unanimously
PLANNING AND DEVELOPMENT COMMITTEE:
* 17.1 Zoning Ordinance Amendment: Two -year Limit on Zoning
Variances -.Call for Public Hearing
By Alderperson Hoffman: Seconded by Alderperson Schroeder
RESOLUTION OF COMMON COUNCIL INTRODUCING
PROPOSED CHANGES TO THE ZONING ORDINANCE AND
PROVIDING FOR PUBLIC NOTICE AND PUBLIC HEARING
BE IT RESOLVED that Ordinance Number 91- entitled "An
Ordinance Amending Section 30.58 Entitled `Board of Appeals' of
Chapter 30 Entitled Zoning' of the City of Ithaca Municipal Code"
be and is hereby introduced before the Common Council of the City
of Ithaca, New York; and
BE IT FURTHER RESOLVED that the Common Council shall hold a
public hearing in the matter of the adoption of the aforesaid
ordinance to be held at the Common Council Chambers, City Hall, 108
East Green Street, Ithaca, New York, on Wednesday, October 2, 1991,
at 7:00 p.m.; and
BE IT FURTHER RESOLVED that the City Clerk give notice of such
public hearing by the publication of a notice in the official
newspaper, specifying the time when and the place where such public
hearing will be held, and in general terms describing the proposed
ordinance. Such notice shall be published once at least fifteen
(15) days prior to the public hearing; and
BE IT FURTHER RESOLVED that the City Clerk shall transmit
forthwith to the Board of Planning and Development and the Tompkins
County Planning Board a true and exact copy of the proposed
ordinance for its report thereon.
Carried Unanimously
ORDINANCE NO. 91-
An Ordinance amending Section 30.58 entitled "Board of
Appeals" of Chapter 30 entitled "Zoning" of the City of Ithaca
Municipal Code.
BE IT ORDAINED AND ENACTED by the Common Council of the City
of Ithaca, New York, as follows:
Expiration of Variances
12
0
L
J--7
September 4, 1991
Section 1. That Section 30.58(B)(4) is hereby amended to read
as follows:
a) "When an area variance is granted by the Board of Appeals
which enables an applicant to do construction which requires a
building permit, or a use variance is granted by the Board of
Appeals and construction which requires a building permit is
necessary for conversion to the use for which the variance is
granted, and the applicant has not obtained a building permit to
construct the building or part thereof for which the variance has
been granted [ has not been obtained within one year from the day of
the granting of the variance, said variance shall become void.] and
initiated the construction work within two (2) years from the date
of the granting of the variance, the said variance shall become
void; and
b) when an area variance is granted by the Board of Appeals
which enables an applicant to do construction which requires a
This ordinance shall take effect immediately and in accordance
with law upon publication and notice as provided in Section 3.11(B)
of the Ithaca Citv Charter.
b. Zoning Ordinance Amendment: Two -year Limit on Zoning Variances:
Environmental Review - Negative Declaration
By Alderperson Hoffman: Seconded by Alderperson Blanchard
WHEREAS, a proposed ordinance amending Section 30.58(B)(4) of the
City of Ithaca Code providing that area and use variances terminate
within two (2) years from the date of the granting of the variance
if appropriate construction work has not been started, completed,
or certificates of occupancy granted, has been drafted and
submitted to Common Council for consideration, and
WHEREAS, appropriate environmental review has been conducted
including the preparation of the Short Environmental Assessment
Form (SEAF), and
WHEREAS, it appears that the proposed action is an "unlisted"
action under the State Environmental Quality Review Act (SEAR),
including the Part 617 regulations thereunder, and is an "unlisted"
action under the City Environmental Quality Review Act (EQR Section
36.5 (E)), and
WHEREAS, it appears that the proposed action will not have a
significant effect on the environment; now, therefore, be it
RESOLVED, that this Common Council, as lead agency in this matter,
hereby does adopt as its own the findings and conclusions more
fully set forth on the Short Environmental Assessment Form dated
August 27, 1991, and be it further
13
building
permit, or a use variance is granted by the Board of
is granted
Appeals
and construction which
requires a building permit is
1 _ no construction
necessary for conversion to the
use for which the variance is
is
granted
and a building permit to
construct the building or part
D
thereof
for which the variance has
been granted has been obtained,
(o
and the
construction has not been
substantially completed prior to
Q
the expiration
of the building permit,
the said variance shall
two
become
void; and
the
This ordinance shall take effect immediately and in accordance
with law upon publication and notice as provided in Section 3.11(B)
of the Ithaca Citv Charter.
b. Zoning Ordinance Amendment: Two -year Limit on Zoning Variances:
Environmental Review - Negative Declaration
By Alderperson Hoffman: Seconded by Alderperson Blanchard
WHEREAS, a proposed ordinance amending Section 30.58(B)(4) of the
City of Ithaca Code providing that area and use variances terminate
within two (2) years from the date of the granting of the variance
if appropriate construction work has not been started, completed,
or certificates of occupancy granted, has been drafted and
submitted to Common Council for consideration, and
WHEREAS, appropriate environmental review has been conducted
including the preparation of the Short Environmental Assessment
Form (SEAF), and
WHEREAS, it appears that the proposed action is an "unlisted"
action under the State Environmental Quality Review Act (SEAR),
including the Part 617 regulations thereunder, and is an "unlisted"
action under the City Environmental Quality Review Act (EQR Section
36.5 (E)), and
WHEREAS, it appears that the proposed action will not have a
significant effect on the environment; now, therefore, be it
RESOLVED, that this Common Council, as lead agency in this matter,
hereby does adopt as its own the findings and conclusions more
fully set forth on the Short Environmental Assessment Form dated
August 27, 1991, and be it further
13
cZ__-when
a use variance
is granted
by the Board of Zoning
Appea' �:
1 _ no construction
which
requires a building permit
is
necessu:__-
.___tor conversion to
the
use for which the variance
is
granted
and the applicant
has not obtained a certificate
of
occupancy
for the use for which the
variance was granted within
two
(2) years from the date of
the
granting of the variance,
the
variance
shall become void."
Section
2. Effective Date.
This ordinance shall take effect immediately and in accordance
with law upon publication and notice as provided in Section 3.11(B)
of the Ithaca Citv Charter.
b. Zoning Ordinance Amendment: Two -year Limit on Zoning Variances:
Environmental Review - Negative Declaration
By Alderperson Hoffman: Seconded by Alderperson Blanchard
WHEREAS, a proposed ordinance amending Section 30.58(B)(4) of the
City of Ithaca Code providing that area and use variances terminate
within two (2) years from the date of the granting of the variance
if appropriate construction work has not been started, completed,
or certificates of occupancy granted, has been drafted and
submitted to Common Council for consideration, and
WHEREAS, appropriate environmental review has been conducted
including the preparation of the Short Environmental Assessment
Form (SEAF), and
WHEREAS, it appears that the proposed action is an "unlisted"
action under the State Environmental Quality Review Act (SEAR),
including the Part 617 regulations thereunder, and is an "unlisted"
action under the City Environmental Quality Review Act (EQR Section
36.5 (E)), and
WHEREAS, it appears that the proposed action will not have a
significant effect on the environment; now, therefore, be it
RESOLVED, that this Common Council, as lead agency in this matter,
hereby does adopt as its own the findings and conclusions more
fully set forth on the Short Environmental Assessment Form dated
August 27, 1991, and be it further
13
'J'� -
September 4, 1991
RESOLVED, that this Common Council as lead agency, hereby does
determine that the proposed action at issue will not have a
significant effect on the environment, and that further
environmental review is unnecessary under the circumstances, and be
it further
RESOLVED, that this resolution shall constitute notice of this
negative declaration and the City Clerk be and she is hereby
directed to file a copy of the same, together with the attachment,
in the City Clerk's Office and forward the same to any other
parties as required by law.
Carried Unanimously
Six Mile Creek Natural Area - Investigation of Land Purchases..__-
Report
Alderperson Hoffman reported that the City Attorney and Director of
Planning and Development have been asked to investigate the
possible purchase of property in the Six Mile Creek Natural Area.
The matter will be coming before Council in the near future.
1992 Planning Department Work Program - Report
Alderperson Hoffman reported that the 1992 Planning Department Work
Program is being worked on at this time. He said if people have
priorities, they should bring them up to the Committee now.
ADJOURNMENT
On a motion the meeting adjourned at 9:28 p.m.
(�fc F. Paolange
City Clerk
14
Benjamin Nichols
Mayor
I F- �
0
MEMORANDUM
To: Mayor and Common Council
4.
From: Richard S. Booth
Subject: Proposal to "Waive" the City Zoning Ordinance with respect
to the GIAC Pool
Date: September 3, 1991
I. INTRODUCTION
I believe that waiving the provisions of the City's Zoning
Ordinance (hereafter referred to as "the Ordinance ") with respect to
building a new municipal pool near GIAC (or any other capital project
undertaken by the City) would constitute a significant mistake.
have been, and I remain, a very strong supporter of the City's
decision to build that pool, and I am very conscious of the fact that
any delays in that project will probably mean that the new GIAC pool
will not be open for swimming in the summer of 1992.
Nevertheless, I am firmly opposed to the proposal to exempt the pool
from the Ordinance, and I will vote against it. I urge all of you to do
the same.
Please consider the following items.
II. ARGUMENTS AGAINST WAIVING THE ORDINANCE AS IT APPLIES TO
THE PROPOSED GIAC POOL
I raise three arguments here to support my conclusion that
Council should not waive the application of the Ordinance in this
case: first, that such a waiver will reflect a seriously flawed public
policy choice; second, that Council is considering this proposed
waiver because the City made some serious mistakes in its
decision - making processes regarding the pool, and those mistakes do
not begin to constitute a proper basis for waiving the Ordinance; and
third, that waiving the Ordinance will constitute a violation of the
City Code. I wish to stress the first and second arguments, which
address matters of public policy, much more heavily than the third,
which is based on a legal interpretation of the City Code. This is
1
not to suggest
to Council that I
do not think the
law is important.
You know me
too well to reach
that conclusion.
I stress the first
two arguments
because they reflect what Council
should do in this
case; they should
be enough by
themselves to convince Council that
it will not waive the application
of the Ordinance
in this case.
A. WAIVING THE ORDINANCE WITH RESPECT TO THE PROPOSED
POOL WILL CONSTITUTE A SERIOUS ERROR OF PUBLIC POLICY
1. This issue does not primarily involve a question of law, but
rather an important question of public policy. While I have not
researched this issue, I believe a local government in New York
State has the legal authority to decide that under certain
circumstances its own public projects will not have to comply with
its zoning ordinance. I assume for the purposes of this section of
this memo that the City has the authority to exempt the pool from
the application of the Ordinance. THE CENTRAL ISSUE FACING US IN
THIS CASE, THEREFORE, IS NOT WHETHER WE HAVE THE LEGAL
AUTHORITY TO WAIVE THE ORDINANCE, BUT RATHER WHETHER WE
SHOULD DO SO. (Note: Subdivision C below takes a different look at
the legal issue raised by the proposed waiver of the Ordinance.)
2. A decision to waive the Ordinance in this case will constitute
an important and, I believe, troubling precedent for future Council
decisions. While this decision may have some importance as a legal
precedent, I am much more concerned with the possibility that a
decision to waive the Ordinance in this case will in all likelihood
generate widely varying requests for similar action in other cases.
Already it is evident that the very question raised in this case is
present with respect to the proposed Transit Facility and certain
renovations being considered at Southside. There will be others,
perhaps many others. I have to believe that what we do in this case
will create substantial expectations that we will do so again.
The nature and numbers of cases in which this type of waiver
question will arise in the future cannot be accurately estimated at
this time. Suffice it to say that they will be likely to vary
significantly from the type of choice Council believes it is making
here.
These future cases will not in my opinion be limited to purely
2
J
public projects (like the municipal pool at GIAC). They almost
certainly will involve cases in which the City government is co-
sponsoring a project with another government entity or with a
private entity. They almost certainly will arise in future cases
involving P -1 zoning. They are likely to involve cases in which the
City government is not a sponsor but is a major proponent of certain
projects undertaken by non -City entities. Future cases may well
encompass purely private projects. I happen to believe that it would
be illegal with respect to a purely private project for Council to
waive the Ordinance, but that is beside the point. The critical point
is that the action Council is considering in this case is likely to
generate future zoning waiver requests to Council in a wide range of
circumstances.
3. Government entities make serious mistakes when they set up
one set of land development rules for the private sector and another
for themselves. This type of double standard erodes the public's
confidence in what government is doing in its development
activities. Projects undertaken by government entities can create
just as many problems as private projects, and often more. The
public well understands that government projects need to be
regulated. In this regard, Council might reflect on the complicated
history that led the U.S. Congress to amend both the Clean Air Act
and the Clean Water Act to require federal facilities to acquire
pollution permits from state environmental agencies.
In addition, creating a double standard by not requiring
government projects to meet the same requirements as private
projects generates tremendous bitterness on the part of private
sector interests. When a private project sponsor seeks to proceed,
he /she has to comply with certain development restrictions, and it
is very common for those restrictions to limit the nature and scope
of the private project being undertaken. Many citizens deeply resent
the fact that government quite often exempts itself from the rules
that govern the private sector.
Common Council is badly advised to say with respect to this
project (or any other it undertakes) that "we set the rules, but we
are not going to abide by them here because we do not like the way
they apply." That type of attitude on the part of government is
destructive to the general sense of community responsibility to
serve the larger public good that government should always try to
3
foster. The obvious and significant benefits of the GIAC pool do not
outweigh the need for the City to abide by the rules governing land
development that it has itself set.
4. Council will be correctly criticized for being very hypocritical
if it waives the Ordinance in this case. With respect to the County
Mental Health Building (and perhaps the County's renovations at the
jail), the City has made a variety of statements about how important
it is for the County to abide by the Ordinance. With respect to the
Mental Health Building, the County has said that it will abide by the
Ordinance even though it is riot legally required to do so. I believe
the County is correct in its assessment of its legal position in this
case, and I think the County is similarly correct in its position that
it should abide by the ordinance. The County's position will stand in
sharp contrast to the City's should Council adopt the proposed
waiver position.
5. In considering whether Council will determine to waive the
application of the Ordinance to a City project, Council should
consider the City's position in two famous historic preservation law
cases in which the City was involved. They are highly instructive in
the present circumstances.
In City of Ithaca v. County of Tompkins, 355 N.Y.S.2d 275 (1974),
the City successfully argued that Tompkins County could not tear
down the Boardman House unless the County complied with the
provisions of the City's historic preservation ordinance. That
decision stands as a landmark in the field of Historic Preservation
Law with respect to a municipal government's authority to regulate
the activity of a county government.
The second case did not turn out so well for the City, but the
City's statement of principle was nevertheless important. In In the
Matter of Barbara Ebert v New York State Office of Parks.
Recreation. and Historic Preservation, 505 N.Y.S.2d 470 (1986), the
City argued that New York State could not tear down Stone Hall at
Cornell unless it first complied with the City's historic preservation
ordinance. The City's position initially prevailed in the state's
Supreme Court, but that position was overturned by the Appellate
Division. The state's highest court, the Court of Appeals, refused to
hear a further appeal.
rd
O
While the City's legal position did not prevail in the Stone Hall
case against the state, it is of great importance to note that in both
cases the City argued that another government entity, including the
state, must comply with a local ordinance. The City took those
positions because it recognized that actions by government entities
can have just as serious impacts on important values as can private
projects and that, therefore, the actions of those government
entities should be subject to applicable regulations. The City's
position in those two cases will stand in extraordinarily sharp
contrast to a Council decision that a City project does not have to
comply with the City's Zoning Ordinance
6. Council may decide to say the following with respect to the
GIAC Pool: "We are waiving the ordinance in this case because the
City has skillfully designed a. project that will serve the public good
even though it does not satisfy the Ordinance's requirements. In
fact, we have designed this pool project to be a better project than
it could be if it did comply with the Ordinance." If Council does that,
it must understand that it will be echoing the claims of countless
project sponsors who have sincerely believed that they could have
designed and built far better projects were they not required to
comply with government- imposed restrictions for such things as
setbacks, parking spaces, and minimum lot sizes.
Zoning requirements are not enacted because they will allow the
best or even a highly desirable project to be designed and built in
any particular case. They are enacted because the public good will
be served by having everyone abide by a set of rules governing land
development, except in special circumstances. I may be able to
design a more attractive project if I do not have to abide by the
minimum side yard requirements, but everyone, including me, is
better off because those requirements exist and are applied to all.
7. Where there are special circumstances which may justify a
waiver of zoning requirements, those circumstances are best judged
by a neutral body that has expertise in making decisions about
varying the uniform requirements that have been set for the good of
all. Those special circumstances should not be judged by those who
are the proponents of a particular project, which the Council is in
this case. Under the Ordinance, those decisions are left to the Board
of Zoning Appeals, and any decision to grant a "waiver" (variance) in
the case of the GIAC pool should be left to the Board.
8. The City Attorney has argued that an application by one part of
the City government to the Board of Zoning Appeals for variances
respecting the GIAC Pool would place the City in an awkward
position. That situation would involve one part of the City applying
to another part of the City government for permission to do
something. He also points out that should the Board deny the
variance request, the City government would possibly be in the
awkward position of considering whether to ask a court to reverse
the Board's decision. He correctly points out that a party other than
the City itself would readily go to court to challenge an unfavorable
decision by the Board, something that Council might have a difficult
time deciding to do.
Council should realize that its potential position vis -a -vis the
Board is neither difficult nor particularly strange. While Council
might not as readily sue the Board as another party in the event the
Board should reach an unfavorable decision, Council has far, far
greater powers vis -a -vis the Board than does any other party: i.e.,
Council may change the legislation under which the Board operates.
Furthermore, it is not at all unusual to require. that one part of a
government structure apply to another part of the same government
for permission to do something. The State of New York has a number
of requirements of this kind - i.e., requirements that one state
agency obtain permits from another state agency and even, in at
least one case, requirements that one part of a state agency obtain
permits from another part of the same agency. These arrangements
obviously raise questions about what one agency should /can do if
another agency prevents it from pursuing some sort of activity. If
New York State can find a way to live with the situation in which
one part of it does not allow another state entity to undertake some
activity, I am confident that the City of Ithaca can do the same.
9. Legislative bodies function best and most properly when they
weigh a variety of appropriate considerations and establish policies
that govern societal behavior. In most cases legislatures are not the
proper government decision - makers to decide how legislation should
or should not apply in specific factual situations. Where, as here,
Council has established the City's land use regulation policies
R
through enactment of the Zoning Ordinance, Council is best advised
to leave the application of that ordinance in particular factual
situations to other bodies in City government.
i 10. If Council reached the conclusion that certain rules in the
Ordinance were not the correct ones, Council could have and should
have changed those rules. As pointed out in B below, that certainly
could have occurred in this case.
Some may argue that if Council could have amended the Zoning
Ordinance to accomplish certain desired changes in P -1 districts, it
should accomplish the same thing by exempting the GIAC pool from
those provisions now and then amending the appropriate provisions
in the future. Similar to points made above, it is important that
Council abide by the land development rules that have been set until
such time as they are amended pursuant to legally required
decision - making processes. If Council does not believe that existing
rules are correct, it should change those rules by following the
amendment provisions set forth in the Ordinance. Maintenance of the
proper legal process established for implementing and amending the
Ordinance is every bit as important as abiding by the substantive
land use restrictions in the Ordinance.
1
r
B. THE WAIVER PROPOSAL BEFORE COUNCIL STEMS FROM A SERIES
OF MISTAKES MADE IN REVIEWING THE GIAC POOL; MISTAKES IN THE
DECISION - MAKING PROCESS CONSTITUTE A TOTALLY IMPROPER
BASIS FOR MAKING LEGISLATIVE EXCEPTIONS TO THE CITY'S BASIC
LAND USE CONTROL ORDINANCE
1. Council is considering waiving the Ordinance in this case
because the processes it established to advise it on this capital
project did not work properly - i.e., because the City government and
the professionals it hired for this case made mistakes. That is
clearly an improper basis on which to waive the application of the
Ordinance.
2. If Council had become aware of those mistakes some months
ago, before various commitments were made with respect to this
project, there would have been sufficient time to explore reasonable
alternatives. In my opinion, Council would not be seriously
7
considering the waiver proposal before us if there were adequate
time to consider alternatives that would allow the project to
proceed on a timely basis.
3. Evidently several mistakes were made over a period of months
respecting the applicability of the Ordinance to this project.
Council is responsible for the mistakes that were made; it clearly
failed to identify the project's lack of compliance with the
Ordinance. I certainly share that responsibility, as does every other
member of Council.
Beyond Council's responsibility, however, it is important to
recognize that there were other serious mistakes. Apparently one of
three things initially went wrong in this case: either the architects
the City hired failed to do their job of identifying the zoning issues
at hand and pursuing them until they were handled properly; OR the
Client Committee and City staff that worked with that committee
failed to pursue these issues adequately; OR both of these mistakes
were made. Most importantly, the Client Committee and /or City
staff failed to bring these problems to the attention of Council on a
timely basis and did not provide information about them to Council
when the critical decisions authorizing and funding this project
were made.
4. 1 am confident that had the full Council or any Council
committee been made aware that this project would not comply with
the Ordinance at a proper time in the Council's decision - making
processes, this project would have been designed differently. With
respect to the zoning setback problems, the project could easily
have been designed differently. With respect to the parking problem
under the Ordinance, other alternatives could have been explored in a
timely fashion, perhaps including finding a way to utilize the School
District parking that exists near the pool site.
Indeed, it is possible that if Council had been properly alerted to
the zoning problems that exist in this case because of the P -1
zoning, it could have considered making certain desirable
amendments to the Ordinance. For example, those amendments might
have created some new provisions that apply to public swimming
pools in P -1 districts. That would have been a proper course of
action.
0
5. Clearly there are some circumstances in which time
considerations impose tremendous burdens on government, and there
can be circumstances of an emergency nature that require certain
legal mandates to be set aside. The time elements surrounding the
building of this pool do not in my opinion come close to amounting to
an emergency that justifies setting aside the City's major legal
structure for governing land use and development.
C. THE PROPOSED WAIVER WILL VIOLATE THE CITY CODE
1. As I
discussed previously, I
believe a local government has the
authority under the laws
of this state
to exempt its own municipal
projects from its zoning
ordinance.
I also believe that a local
government
may choose
to require that all of its municipal projects
comply with
its zoning ordinance.
If a local government takes the
latter step,
it is required
to abide
by the zoning ordinance until such
time as the
ordinance is
amended.
2. The wording of Ithaca's Zoning Ordinance does not specifically
state whether or not City- initiated projects are required to comply
with its provisions. However, the Ordinance can be most easily and
clearly read to mean that City projects do in fact have to satisfy its
provisions. Section 30.24 of the Ordinance is entitled "Application
of Regulations ". It states in part:
"No building or land shall hereafter be used or occupied and no
building or part thereof shall be erected, moved or altered unless in
conformity with the regulations herein specified for the district in
which it is located."
In addition, section 30.55 of the Ordinance is entitled "Building
Permits ". It states in part:
"No building or structure shall be erected, added to or
structurally altered until a building permit therefor has been issued
by the Building Commissioner. All applications for such permits
shall be in accordance with the requirements of all applicable
9
regulations. The Building Commissioner shall not issue a building
permit hereunder until he has determined that all of the provisions
of this Chapter and any other applicable laws or regulations have
been complied with ..."
The language in these two sections clearly does not exempt
municipal projects. I can find no other language in the ordinance
that does so. The broad and widely applicable language of sections
30.24 and 30.55 suggests very strongly that the City's Zoning
Ordinance does in fact require City projects to comply with its
provisions.
III. MISCELLANEOUS POINTS
A. I do not intend to delve deeply into the substantive merits of
the proposed resolution that would waive the application of the
Ordinance in this case. I am going to vote against it, and no changes
that I can possibly imagine in the proposed resolution will cause me
to support it. However, I would point out that it seems ridiculous to
argue that very few people will drive to the site of this pool or that
parking will not be a problem. Any municipal pool in downtown
Ithaca big enough to serve 160 to 200 kids at any one time is likely
to attract a considerable number of adults who drive to the pool and
park in the vicinity.
B. Whether or not Council approves this waiver request, steps
must be taken to prevent this type of problem with the application
of a major City ordinance from occurring in the future. Presumably
a number of changes must occur, and it would be useful for the
Charter and Ordinance Committee or the Budget and Administration
Committee to consider what those changes might be. Without trying
to be exhaustive in this regard, let me suggest just three.
1. Early in the discussions of a proposed City project, the Building
Commissioner's conclusions regarding the applicability of the
Ordinance and other ordinances for which he /she is responsible for
implementation must be made a formal part of the deliberations at
hand, and those issues must remain an important focus for the
various City groups that subsequently review that project.
10
I F-�
0
2. Similar to the first item, the conclusions of other City officers
(e.g., the Fire Chief) with jurisdiction over a proposed municipal
project must formally be made part of the discussions regarding
that project and must remain a focus of the City's decisions
regarding the project.
3. Council should stop using the term "Client Committee" for the
committees we set up to review these projects. Perhaps they should
be called something like "Project Review Committees ". In any case,
these review committees must understand from the outset that they
must examine closely all of the relevant issues that relate to
(illoe, whether the particular project is feasible and desirable. I fear that
what has happened in this case may have happened with a number of
other City projects - i.e., in this case the Client Committee became
more of an advocacy group for the project than a project review
group, and it failed to examine critically and fully all of the issues
relevant to a City decision whether, when, and how to proceed with
this project.
IV. CLOSING
I realize that this document is quite long. I appreciate your
willingness to read it. I urge you to vote against the proposed
waiver of the Zoning Ordinance in this case.
Thank you.
cc Building Commissioner
City Attorney
GIAC Coordinator
Planning Director
(Acting) Superintendent of Public Works
Youth Bureau Director
Chair, Board of Zoning Appeals
11
Remarks by Alderperson John Schroeder at the September 4, 1991
Common Council Meeting, Concerning the Proposal to Waive Certain
Zoning Provisions With Respect to the New Municipal Pool:
Let's descend for a moment from high principle, and consider what
specifically will happen if we fail to grant the municipal pool project a waiver
from zoning provisions. Without this waiver, the City will likely seek a variance
from the Board of Zoning Appeals, and the BZA will probably turn the
variance request down.
So, here is what will likely happen, if we reject the waiver: We will delay,
(400e at least for a year, a project much needed by the children and families of Ithaca.
We will very likely have to rip out grass next to the pool site and replace it with
an unneeded 20 -car parking lot. We will severely compromise a very compact,
efficient and aesthetically pleasing design, and probably cause an expensive
redesign, unnecessarily wasting tight City money. These are severe damages. If
we choose to do these several harmfiil things, we ought to have an awfully
good reason for inflicting such harm on our City, for inflicting such harm on a
very good and very popular project.
The reasons others give for opposing this waiver boil down to a single
principle. Simply stated, the principle is that the City should adhere to the same
zoning standards as apply to private landowners, that there should not be a
"double standard." On the surface, this sounds very good, very noble, like
something one could proclaim ringingly on the floor of Common Council. I
know the alderpersons making this argument are doing so from the bottom of
their hearts.
LV-01 But I wonder if this "principle" really applies to the municipal pool
project, in the first place.
After all, we are not talking here about an "R" residential zone, affecting
many private home owners and property owners. Nor are we talking about a
"B" business zone, full of privately owned businesses. We aren't even talking
about an "I" industrial zone, also with many privately owned parcels. Instead,
we are talking about a public zone — the P -1 zone. This is a very special,
0J
indeed unique district on our zoning map. The P -1 zone, including the parcel
where this municipal pool will be built, is dedicated to public recreational and
educational purposes. It is not a zone of private property owners. It is a zone
overwhelmingly occupied by City land (for our parks, the Department of Public
Works, the City cemetery and other City purposes), by school district land and
by the Cornell University campus.
Indeed, the special character of the P -1 district is clearly recognized in
the Zoning Ordinance. It is one of the very few zones that is non - cumulative,
as you look down the the zoning chart. It is the only district with no maximum
building height. There are very special circumstances in this zoning district; it is
not just another zone like the others. This is a district specifically populated by
institutions that serve the public good, that provide the public with education
and recreation.
In any of our City zoning districts, we present generalized standards. The
P -1 zone's standards are particularly general and average, because this zone
deals with such special circumstances. For example, the main Cornell University
campus is one big building lot. So language about a 25 -foot front yard setback
or a 10 -foot side yard setback only applies to an extremely minute percentage of
Cornell projects — just those bordering a City street. In the overwhelming
majority of cases, these provisions do not affect Cornell at all.
Furthermore, when the Zoning Ordinance was written in the 1970s, it
was simply assumed that City government projects were exempt from City
zoning regulations. Of course there is no literal language in our ordinance
explicitly stating this exemption, because — at the time — such an exemption
was simply presumed.
I think we should understand the existing P -1 regulations as general,
average standards for protecting the public interest with respect to future non -
City institutional projects, whose specific attributes — obviously — could not
be foreseen when the Zoning Ordinance was written. Any future Cornell
project or school district project might indeed need a dedicated parking lot or a
setback from the street.
But with the municipal pool project we are considering this evening, we
3
are not dealing with "maybes" or "possibilities." Rather, we are dealing with a
very specific project that can be evaluated readily on its own merits. We can see
that an additional parking lot is not needed, that it would be damaging, by
evaluating the usage patterns at the mini -pool existing now. We can look at the
project drawings and see that adding corner -lot yard setbacks would seriously
compromise a very efficient and very compact design. We know the pool
project has broad popular support. In fact, the private landowner who would be
most directly affected by the new pool, Jacqueline Livingston, spoke strongly in
favor of the project last month.
That is why the "balancing test" between the "public interests of a
municipal project" and the "public interests of local land use regulations" — as
(awe, described in the waiver resolution before us tonight — makes so much sense.
As others have pointed out, in the instances of the Tompkins County mental
health building and the City court facility, no good reasons existed for waiving
our zoning regulations. A waiver would not have made sense. In fact, the court
project was greatly improved by literally applying zoning provisions. That is not
the case here. Literally following the Zoning Ordinance would significantly
damage the municipal pool project.
Common Council establishes the Zoning Ordinance to serve the public
interest. And our P- I zone is very especially dedicated to serving educational
and recreational goals. For us to delay — and possibly severely harm — an
excellent recreational project that the public broadly supports, by mechanically
applying provisions that were never intended to apply to the City in the first
place, would be a small tragedy. It would be to obstruct the public interest with
needless bureaucratic hurdles.
Let's not trip ourselves up with intellectual abstractions and non -
applicable "principles" that — however well- intentioned
frustrate the public good. Let's let the children swim.
in truth only
3
are not dealing with "maybes" or "possibilities." Rather, we are dealing with a
very specific project that can be evaluated readily on its own merits. We can see
that an additional parking lot is not needed, that it would be damaging, by
evaluating the usage patterns at the mini -pool existing now. We can look at the
project drawings and see that adding corner -lot yard setbacks would seriously
compromise a very efficient and very compact design. We know the pool
project has broad popular support. In fact, the private landowner who would be
most directly affected by the new pool, Jacqueline Livingston, spoke strongly in
favor of the project last month.
That is why the "balancing test" between the "public interests of a
municipal project" and the "public interests of local land use regulations" — as
(600.11 described in the waiver resolution before us tonight — makes so much sense.
As others have pointed out, in the instances of the Tompkins County mental
health building and the City court facility, no good reasons existed for waiving
our zoning regulations. A waiver would not have made sense. In fact, the court
project was greatly improved by literally applying zoning provisions. That is not
the case here. Literally following the Zoning Ordinance would significantly
damage the municipal pool project.
Common Council establishes the Zoning Ordinance to serve the public
interest. And our P- I zone is very especially dedicated to serving educational
and recreational goals. For us to delay — and possibly severely harm — an
excellent recreational project that the public broadly supports, by mechanically
applying provisions that were never intended to apply to the City in the first
place, would be a small tragedy. It would be to obstruct the public interest with
needless bureaucratic hurdles.
Let's not trip ourselves up with intellectual abstractions and non -
applicable "principles" that — however well- intentioned — in truth only
frustrate the public good. Let's let the children swim.
Remarks by Alderperson John Schroeder at the September 4, 1991
Common Council Meeting, Concerning the Proposal to Waive Certain
Zoning Provisions With Respect to the New Municipal Pool:
Let's descend for a moment from high principle, and consider what
specifically will happen if we fail to grant the municipal pool project a waiver
from zoning provisions. Without this waiver, the City will likely seek a variance
from the Board of Zoning Appeals, and the BZA will probably turn the
variance request down.
So, here is what will likely happen, if we reject the waiver: We will delay,
at least for a year, a project much needed by the children and families of Ithaca.
We will very likely have to rip out grass next to the pool site and replace it with
an unneeded 20 -car parking lot. We will severely compromise a very compact,
efficient and aesthetically pleasing design, and probably cause an expensive
redesign, unnecessarily wasting tight City money. These are severe damages. If
we choose to do these several harmful things, we ought to have an awfully
good reason for inflicting such harm on our City, for inflicting such harm on a
very good and very popular project.
The reasons others give for opposing this waiver boil down to a single
principle. Simply stated, the principle is that the City should adhere to the same
zoning standards as apply to private landowners, that there should not be a
"double standard." On the surface, this sounds very good, very noble, like
something one could proclaim ringingly on the floor of Common Council. I
know the alderpersons making this argument arc doing so from the bottom of
their hearts.
But I wonder if this "principle" really applies to the municipal pool
project, in the first place.
After all, we are not talking here about an "R" residential zone, affecting
many private home owners and property owners. Nor are we talking about a
"B" business zone, full of privately owned businesses. We aren't even talking
about an "I" industrial zone, also with many privately owned parcels. Instead,
we are talking about a public zone — the P -1 zone. This is a very special,
PA
indeed unique district on our zoning map. The P -1 zone, including the parcel
where this municipal pool will be built, is dedicated to public recreational and
educational purposes. It is not a zone of private property owners. It is a zone
overwhelmingly occupied by City land (for our parks, the Department of Public
Works, the City cemetery and other City purposes), by school district land and
by the Cornell University campus.
Indeed, the special character of the P -1 district is clearly recognized in
the Zoning Ordinance. It is one of the very few zones that is non - cumulative,
as you look down the the zoning chart. It is the only district with no maximum
building height. There are very special circumstances in this zoning district; it is
not just another zone like the others. This is a district specifically populated by
institutions that serve the public good, that provide the public with education
and recreation.
In any of our City zoning districts, we present generalized standards. The
P -1 zone's standards are particularly general and average, because this zone
deals with such special circumstances. For example, the main Cornell University
campus is one big building lot. So language about a 25 -foot front yard setback
or a 10 -foot side yard setback only applies to an extremely minute percentage of
Cornell projects — just those bordering a City street. In the overwhelming
majority of cases, these provisions do not affect Cornell at all.
Furthermore, when the Zoning Ordinance was written in the 1970s, it
was simply assumed that City government projects were exempt from City
zoning regulations. Of course there is no literal language in our ordinance
explicitly stating this exemption, because — at the time — such an exemption
was simply presumed.
I think we should understand the existing P -1 regulations as general,
average standards for protecting the public interest with respect to future non -
City institutional projects, whose specific attributes — obviously — could not
be foreseen when the Zoning Ordinance was written. Any future Cornell
project or school district project might indeed need a dedicated parking lot or a
setback from the street.
But with the municipal pool project we are considering this evening, we
2. Similar to the first item, the conclusions of other City officers
(e.g., the Fire Chief) with jurisdiction over a proposed municipal
project must formally be made part of the discussions regarding
that project and must remain a focus of the City's decisions
regarding the project.
3. Council should stop using the term "Client Committee" for the
committees we set up to review these projects. Perhaps they should
be called something like "Project Review Committees ". In any case,
these review committees must understand from the outset that they
must examine closely all of the relevant issues that relate to
whether the particular project is feasible and desirable. I fear that
what has happened in this case may have happened with a number of
other City projects - i.e., in this case the Client Committee became
more of an advocacy group for the project than a project review
group, and it failed to examine critically and fully all of the issues
relevant to a City decision whether, when, and how to proceed with
this project.
IV. CLOSING
I realize that this document is quite long. I appreciate your
willingness to read it. I urge you to vote against the proposed
waiver of the Zoning Ordinance in this case.
Thank you.
cc Building Commissioner
City Attorney
GIAC Coordinator
Planning Director
(Acting) Superintendent of Public Works
Youth Bureau Director
Chair, Board of Zoning Appeals
11
5. Clearly there are some circumstances in which time
considerations impose tremendous burdens on government, and there
can be circumstances of an emergency nature that require certain
legal mandates to be set aside. The time elements surrounding the
building of this pool do not in my opinion come close to amounting to
an emergency that justifies setting aside the City's major legal
structure for governing land use and development.
C. THE PROPOSED WAIVER WILL VIOLATE THE CITY CODE
1. As I
discussed previously, I
believe a local government has the
authority under the laws
of this state
to exempt its own municipal
projects from its zoning
ordinance.
I also believe that a local
government
may choose
to require that all of its municipal projects
comply with
its zoning ordinance.
If a local government takes the
latter step,
it is required
to abide
by the zoning ordinance until such
time as the
ordinance is
amended.
2. The wording of Ithaca's Zoning Ordinance does not specifically
state whether or not City- initiated projects are required to comply
with its provisions. However, the Ordinance can be most easily and
clearly read to mean that City projects do in fact have to satisfy its
provisions. Section 30.24 of the Ordinance is entitled "Application
of Regulations ". It states in part:
bNo building or land shall hereafter be used or occupied and no
uilding or part thereof shall be erected moved or
altered unless in
conformity with the regulations herein specified for the district in
which it is located."
In addition, section 30.55 of the Ordinance is entitled "Building
Permits ". It states in part:
"No building or structure shall be erected, added to or
structurally altered until a building permit therefor has been issued
by the Building Commissioner. All applications for such permits
shall be in accordance with the requirements of all applicable
regulations. The Building Commissioner shall not issue a building
permit hereunder until he has determined that all of the provisions
of this Chapter and any other applicable laws or regulations have
been complied with ..."
The language in these two sections clearly does not exempt
municipal projects. I can find no other language in the ordinance
that does so. The broad and widely applicable language of sections
30.24 and 30.55 suggests very strongly that the City's Zoning
Ordinance does in fact require City projects to comply with its
provisions.
III. MISCELLANEOUS POINTS
A. I do not intend to delve deeply into the substantive merits of
the proposed resolution that would waive the application of the
Ordinance in this case. I am going to vote against it, and no changes
that I can possibly imagine in the proposed resolution will cause me
to support it. However, I would point out that it seems ridiculous to
argue that very few people will drive to the site of this pool or that
parking will not be a problem. Any municipal pool in downtown
Ithaca big enough to serve 160 to 200 kids at any one time is likely
to attract a considerable number of adults who drive to the pool and
park in the vicinity.
B. Whether or not Council approves this waiver request, steps
must be taken to prevent this type of problem with the application
of a major City ordinance from occurring in the future. Presumably
a number of changes must occur, and it would be useful for the
Charter and Ordinance Committee or the Budget and Administration
Committee to consider what those changes might be. Without trying
to be exhaustive in this regard, let me suggest just three.
1. Early in the discussions of a proposed City project, the Building
Commissioner's conclusions regarding the applicability of the
Ordinance and other ordinances for which he /she is responsible for
implementation must be made a formal part of the deliberations at
hand, and those issues must remain an important focus for the
various City groups that subsequently review that project.
10
through enactment of the Zoning Ordinance, Council is best advised
to leave the application of that ordinance in particular factual
situations to other bodies in City government.
1-11.
i
10. If Council reached the conclusion that certain rules in the
Ordinance were not the correct ones, Council could have and should
have changed those rules. As pointed out in B below, that certainly
could have occurred in this case.
Some may argue that if Council could have amended the Zoning
Ordinance to accomplish certain desired changes in P -1 districts, it
should accomplish the same thing by exempting the GIAC pool from
those provisions now and then amending the appropriate provisions
L'00�
in the future. Similar to points made above, it is important that
Council abide by the land development rules that have been set until
such time as they are amended pursuant to legally required
decision - making processes. If Council does not believe that existing
rules are correct, it should change those rules by following the
amendment provisions set forth in the Ordinance. Maintenance of the
proper legal process established for implementing and amending the
Ordinance is every bit as important as abiding by the substantive
land use restrictions in the Ordinance.
B. THE WAIVER PROPOSAL BEFORE COUNCIL STEMS FROM A SERIES
OF MISTAKES MADE IN REVIEWING THE GIAC POOL; MISTAKES IN THE
DECISION - MAKING PROCESS CONSTITUTE A TOTALLY IMPROPER
BASIS FOR MAKING LEGISLATIVE EXCEPTIONS TO THE CITY'S BASIC
LAND USE CONTROL ORDINANCE
1. Council is considering waiving the Ordinance in this case
because the processes it established to advise it on this capital
project did not work properly - i.e., because the City government and
the professionals it hired for this case made mistakes. That is
clearly an improper basis on which to waive the application of the
Ordinance.
2. If Council had become aware of those mistakes some months
ago, before various commitments were made with respect to this
project, there would have been sufficient time to explore reasonable
alternatives. In my opinion, Council would not be seriously
7
considering the waiver proposal before us if there were adequate
time to consider alternatives that would allow the project to
proceed on a timely basis.
3. Evidently several mistakes were made over a period of months
respecting the applicability of the Ordinance to this project.
Council is responsible for the mistakes that were made; it clearly
failed to identify the project's lack of compliance with the
Ordinance. I certainly share that responsibility, as does every other
member of Council.
Beyond Council's responsibility, however, it is important to
recognize that there were other serious mistakes. Apparently one of
three things initially went wrong in this case: either the architects
the City hired failed to do their job of identifying the zoning issues
at hand and pursuing them until they were handled properly; OR the
Client Committee and City staff that worked with that committee
failed to pursue these issues adequately; OR both of these mistakes
were made. Most importantly, the Client Committee and /or City
staff failed to bring these problems to the attention of Council on a
timely basis and did not provide information about them to Council
when the critical decisions authorizing and funding this project
were made.
4. 1 am confident that had the full Council or any Council
committee been made aware that this project would not comply with
the Ordinance at a proper time in the Council's decision - making
processes, this project would have been designed differently. With
respect to the zoning setback problems, the project could easily
have been designed differently. With respect to the parking problem
under the Ordinance, other alternatives could have been explored in a
timely fashion, perhaps including finding a way to utilize the School
District parking that exists near the pool site.
Indeed, it is possible that if Council had been properly alerted to
the zoning problems that exist in this case because of the P -1
zoning, it could have considered making certain desirable
amendments to the Ordinance. For example, those amendments might
have created some new provisions that apply to public swimming
pools in P -1 districts. That would have been a proper course of
action.
While the City's legal position did not prevail in the Stone Hall
case against the state, it is of great importance to note that in both
cases the City argued that another government entity, including the
state, must comply with a local ordinance. The City took those
positions because it recognized that actions by government entities
can have just as serious impacts on important values as can private
projects and that, therefore, the actions of those government
entities should be subject to applicable regulations. The City's
position in those two cases will stand in extraordinarily sharp
contrast to a Council decision that a City project does not have to
comply with the City's Zoning Ordinance
6. Council may decide to say the following with respect to the
GIAC Pool: "We are waiving the ordinance in this case because the
City has skillfully designed a. project that will serve the public good
even though it does not satisfy the Ordinance's requirements. In
fact, we have designed this pool project to be a better project than
it could be if it did comply with the Ordinance." If Council does that,
it must understand that it will be echoing the claims of countless
project sponsors who have sincerely believed that they could have
designed and built far better projects were they not required to
comply with government- imposed restrictions for such things as
setbacks, parking spaces, and minimum lot sizes.
Zoning requirements are not enacted because they will allow the
best or even a highly desirable project to be designed and built in
any particular case. They are enacted because the public good will
be served by having everyone abide by a set of rules governing land
development, except in special circumstances. I may be able to
design a more attractive project if I do not have to abide by the
minimum side yard requirements, but everyone, including me, is
better off because those requirements exist and are applied to all.
7. Where there are special circumstances which may justify a
waiver of zoning requirements, those circumstances are best judged
by a neutral body that has expertise in making decisions about
varying the uniform requirements that have been set for the good of
all. Those special circumstances should not be judged by those who
are the proponents of a particular project, which the Council is in
this case. Under the Ordinance, those decisions are left to the Board
of Zoning Appeals, and any decision to grant a "waiver" (variance) in
5
the case of the GIAC pool should be left to the Board.
8. The City Attorney has argued that an application by one part of
the City government to the Board of Zoning Appeals for variances
respecting the GIAC Pool would place the City in an awkward
position. That situation would involve one part of the City applying
to another part of the City government for permission to do
something. He also points out that should the Board deny the
variance request, the City government would possibly be in the
awkward position of considering whether to ask a court to reverse
the Board's decision. He correctly points out that a party other than
the City itself would readily go to court to challenge an unfavorable
decision by the Board, something that Council might have a difficult
time deciding to do.
Council should realize that its potential position vis -a -vis the
Board is neither difficult nor particularly strange. While Council
might not as readily sue the Board as another party in the event the
Board should reach an unfavorable decision, Council has far, far
greater powers vis -a -vis the Board than does any other party: i.e.,
Council may change the legislation under which the Board operates.
Furthermore, it is not at all unusual to require that one part of a
government structure apply to another part of the same government
for permission to do something. The State of New York has a number
of requirements of this kind - i.e., requirements that one state
agency obtain permits from another state agency and even, in at
least one case, requirements that one part of a state agency obtain
permits from another part of the same agency. These arrangements
obviously raise questions about what one agency should /can do if
another agency prevents it from pursuing some sort of activity. If
New York State can find a way to live with the situation in which
one part of it does not allow another state entity to undertake some
activity, I am confident that the City of Ithaca can do the same.
9. Legislative bodies function best and most properly when they
weigh a variety of appropriate considerations and establish policies
that govern societal behavior. In most cases legislatures are not the
proper government decision - makers to decide how legislation should
or should not apply in specific factual situations. Where, as here,
Council has established the City's land use regulation policies
0
LV-
public projects (like the municipal pool at GIAC). They almost
certainly will involve cases in which the City government is co-
sponsoring a project with another government entity or with a
private entity. They almost certainly will arise in future cases
involving P -1 zoning. They are likely to involve cases in which the
City government is not a sponsor but is a major proponent of certain
projects undertaken by non -City entities. Future cases may well
encompass purely private projects. I happen to believe that it would
be illegal with respect to a purely private project for Council to
waive the Ordinance, but that is beside the point. The critical point
is that the action Council is considering in this case is likely to
generate future zoning waiver requests to Council in a wide range of
circumstances.
3. Government entities make serious mistakes when they set up
one set of land development rules for the private sector and another
for themselves. This type of double standard erodes the public's
confidence in what government is doing in its development
activities. Projects undertaken by government entities can create
just as many problems as private projects, and often more. The
public well understands that government projects need to be
regulated. In this regard, Council might reflect on the complicated
history that led the U.S. Congress to amend both the Clean Air Act
and the Clean Water Act to require federal facilities to acquire
pollution permits from state environmental agencies.
In addition, creating a double standard by not requiring
government projects to meet the same requirements as private
projects generates tremendous bitterness on the part of private
sector interests. When a private project sponsor seeks to proceed,
he /she has to comply with certain development restrictions, and it
is very common for those restrictions to limit the nature and scope
of the private project being undertaken. Many citizens deeply resent
the fact that government quite often exempts itself from the rules
that govern the private sector.
Common Council is badly advised to say with respect to this
project (or any other it undertakes) that "we set the rules, but we
are not going to abide by them here because we do not like the way
they apply." That type of attitude on the part of government is
destructive to the general sense of community responsibility to
serve the larger public good that government should always try to
t1
foster. The obvious and significant benefits of the GIAC pool do not
outweigh the need for the City to abide by the rules governing land
development that it has itself set.
4. Council will be correctly criticized for being very hypocritical
if it waives the Ordinance in this case. With respect to the County
Mental Health Building (and perhaps the County's renovations at the
jail), the City has made a variety of statements about how important
it is for the County to abide by the Ordinance. With respect to the
Mental Health Building, the County has said that it will abide by the
Ordinance even though it is riot legally required to do so. I believe
the County is correct in its assessment of its legal position in this
case, and I think the County is similarly correct in its position that
it should abide by the ordinance. The County's position will stand in
sharp contrast to the City's should Council adopt the proposed
waiver position.
5. In considering whether Council will determine to waive the
application of the Ordinance to a City project, Council should
consider the City's position in two famous historic preservation law
cases in which the City was involved. They are highly instructive in
the present circumstances.
In City of Ithaca v. County of Tompkins. 355 N.Y.S.2d 275 (1974),
the City successfully argued that Tompkins County could not tear
down the Boardman House unless the County complied with the
provisions of the City's historic preservation ordinance. That
decision stands as a landmark in the field of Historic Preservation
Law with respect to a municipal government's authority to regulate
the activity of a county government.
The second case did not turn out so well for the City, but the
City's statement of principle was nevertheless important. In In the
Matter of Barbara Ebert v New York State Office of Parks.
Recreation. and Historic Preservation, 505 N.Y.S.2d 470 (1986), the
City argued that New York State could not tear down Stone Hall at
Cornell unless it first complied with the City's historic preservation
ordinance. The City's position initially prevailed in the state's
Supreme Court, but that position was overturned by the Appellate
Division. The state's highest court, the Court of Appeals, refused to
hear a further appeal.
0
MEMORANDUM
To: Mayor and Common Council
From: Richard S. Booth
Subject: Proposal to "Waive" the City Zoning Ordinance with respect
to the GIAC Pool
Date: September 3, 1991
I. INTRODUCTION
I believe that waiving the provisions of the City's Zoning
Ordinance (hereafter referred to as "the Ordinance ") with respect to
building a new municipal pool near GIAC (or any other capital project
undertaken by the City) would constitute a significant mistake. I
have been, and I remain, a very strong supporter of the City's
decision to build that pool, and I am very conscious of the fact that
any delays in that project will probably mean that the new GIAC pool
will not be open for swimming in the summer of 1992.
Nevertheless, I am firmly opposed to the proposal to exempt the pool
from the Ordinance, and I will vote against it. I urge all of you to do
the same.
Please consider the following items.
II. ARGUMENTS AGAINST WAIVING THE ORDINANCE AS IT APPLIES TO
THE PROPOSED GIAC POOL
I raise three arguments here to support my conclusion that
Council should not waive the application of the Ordinance in this
case: firs , that such a waiver will reflect a seriously flawed public
policy choice; second, that Council is considering this proposed
waiver because the City made some serious mistakes in its
decision - making processes regarding the pool, and those mistakes do
not begin to constitute a proper basis for waiving the Ordinance; and
third, that waiving the Ordinance will constitute a violation of the
City Code. I wish to stress the first and second arguments, which
address matters of public policy, much more heavily than the third,
which is based on a legal interpretation of the City Code. This is
1
not to suggest
to Council that I
do not think the
law is important.
You know me
too well to reach
that conclusion.
I stress the first
two arguments
because they reflect what Council
should do in this
case; they should
be enough by
themselves to convince Council that
it will not waive
the application
of the Ordinance
in this case.
A. WAIVING THE ORDINANCE WITH RESPECT TO THE PROPOSED
POOL WILL CONSTITUTE A SERIOUS ERROR OF PUBLIC POLICY
1. This issue does not primarily involve a question of law, but
rather an important question of public policy. While I have not
researched this issue, I believe a local government in New York
State has the legal authority to decide that under certain
circumstances its own public projects will not have to comply with
its zoning ordinance. I assume for the purposes of this section of
this memo that the City has the authority to exempt the pool from
the application of the Ordinance. THE CENTRAL ISSUE FACING US IN
THIS CASE, THEREFORE, IS NOT WHETHER WE HAVE THE LEGAL
AUTHORITY TO WAIVE THE ORDINANCE, BUT RATHER WHETHER WE
SHOULD DO SO. (Note: Subdivision C below takes a different look at
the legal issue raised by the proposed waiver of the Ordinance.)
2. A decision to waive the Ordinance in this case will constitute
an important and, I believe, troubling precedent for future Council
decisions. While this decision may have some importance as a legal
precedent, I am much more concerned with the possibility that a
decision to waive the Ordinance in this case will in all likelihood
generate widely varying requests for similar action in other cases.
Already it is evident that the very question raised in this case is
present with respect to the proposed Transit Facility and certain
renovations being considered at Southside. There will be others,
perhaps many others. I have to believe that what we do in this case
will create substantial expectations that we will do so again.
The nature and numbers of cases in which this type of waiver
question will arise in the future cannot be accurately estimated at
this time. Suffice it to say that they will be likely to vary
significantly from the type of choice Council believes it is making
here.
These future cases will not in my opinion be limited to purely
2
L
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September 4, 1991
Section 1. That Section 30.58(B)(4) is hereby amended to read
as follows:
a) "When an area variance is granted by the Board of Appeals
which enables an applicant to do construction which requires a
building permit, or a use variance is granted by the Board of
Appeals and construction which requires a building permit is
necessary for conversion to the use for which the variance is
granted, and the applicant has not obtained a building permit to
construct the building or part thereof for which the variance has
been granted (has not been obtained within one year from the day of
the granting of the variance, said variance shall become void.] and
initiated the construction work within two (2) years from the date
of the granting of the variance, the said variance shall become
void; and
b) when an area variance is granted by the Board of Appeals
which enables an applicant to do construction_ which requires a
f`
building
permit, or a use variance is granted by the Board of
is granted
Appeals
and construction which
requires a building permit is
co
necessary for conversion to the
use for which the variance is
co
granted
thereof
and a building permit to
for which the variance has
construct the building or part
been granted has been obtained,
(�
and the
construction has not been
substantially completed prior to
Q
the expiration
of the building permit,
the said variance shall
become
void; and
variance was granted within
This ordinance shall take effect immediately and in accordance
with law upon publication and notice as provided in Section 3.11(B)
of the Ithaca Citv Charter.
b. Zoning Ordinance Amendment: Two -year Limit on Zonina Variances:
Environmental Review - Negative Declaration
By Alderperson Hoffman: Seconded by Alderperson Blanchard
WHEREAS, a proposed ordinance amending Section 30.58(B)(4) of the
City of Ithaca Code providing that area and use variances terminate
within two (2) years from the date of the granting of the variance
if appropriate construction work has not been started, completed,
or certificates of occupancy granted, has been drafted and
submitted to Common Council for consideration, and
WHEREAS, appropriate environmental review has been conducted
including the preparation of the Short Environmental Assessment
Form (SEAF), and
WHEREAS, it appears that the proposed action is an "unlisted"
action under the State Environmental Quality Review Act (SEQR),
including the Part 617 regulations thereunder, and is an "unlisted"
action under the City Environmental Quality Review Act (EQR Section
36.5 (E)), and
WHEREAS, it appears that the proposed action will not have a
significant effect on the environment; now, therefore, be it
RESOLVED, that this Common Council, as lead agency in this matter,
hereby does adopt as its own the findings and conclusions more
fully set forth on the Short Environmental Assessment Form dated
August 27, 1991, and be it further
13
c)__when
a use variance
is granted
by the Board of Zoning
Appea_],
oi(] no construction
which
requires a building permit
is
necessa_;_.__for
conversion to
the
use for which the variance
is
granted
and the applicant
has not obtained a certificate
of
occupancy
for the use for which the
variance was granted within
two
{2) years from the date of
the
granting of the variance,
the
variance
shall become void."
Section
2. Effective Date.
This ordinance shall take effect immediately and in accordance
with law upon publication and notice as provided in Section 3.11(B)
of the Ithaca Citv Charter.
b. Zoning Ordinance Amendment: Two -year Limit on Zonina Variances:
Environmental Review - Negative Declaration
By Alderperson Hoffman: Seconded by Alderperson Blanchard
WHEREAS, a proposed ordinance amending Section 30.58(B)(4) of the
City of Ithaca Code providing that area and use variances terminate
within two (2) years from the date of the granting of the variance
if appropriate construction work has not been started, completed,
or certificates of occupancy granted, has been drafted and
submitted to Common Council for consideration, and
WHEREAS, appropriate environmental review has been conducted
including the preparation of the Short Environmental Assessment
Form (SEAF), and
WHEREAS, it appears that the proposed action is an "unlisted"
action under the State Environmental Quality Review Act (SEQR),
including the Part 617 regulations thereunder, and is an "unlisted"
action under the City Environmental Quality Review Act (EQR Section
36.5 (E)), and
WHEREAS, it appears that the proposed action will not have a
significant effect on the environment; now, therefore, be it
RESOLVED, that this Common Council, as lead agency in this matter,
hereby does adopt as its own the findings and conclusions more
fully set forth on the Short Environmental Assessment Form dated
August 27, 1991, and be it further
13
September 4, 1991
RESOLVED, that this Common Council as lead agency, hereby does
determine that the proposed action at issue will not have a
significant effect on the environment, and that further
environmental review is unnecessary under the circumstances, and be
it further
RESOLVED, that this resolution shall constitute notice of this
negative declaration and the City Clerk be and she is hereby
directed to file a copy of the same, together with the attachment,
in the City Clerk's Office and forward the same to any other
parties as required by law.
Carried Unanimously
Six Mile Creek Natural Area - Investigation of Land Purchases -
Report
Alderperson Hoffman reported that the City Attorney and Director of
Planning and Development have been asked to investigate the
possible purchase of property in the Six Mile Creek Natural Area.
The matter will be coming before Council in the near future.
1992 Planning Department Work Program - Report
Alderperson Hoffman reported that the 1992 Planning Department Work
Program is being worked on at this time. He said if people have
priorities, they should bring them up to the Committee now.
ADJOURNMENT
On a motion the meeting adjourned at 9:28 p.m.
C�Iista F. Paolange
City Clerk
14
Benjamin Nichols
Mayor
F]
co
Q
September 4, 1991
a. delivery by the employee to the City Attorney a
written request to provide for his or her defense together with the
original or a copy of any summons, complaint, process, notice,
demand or pleading, within ten (10) days after he or she is served
within such document, and
b. the full cooperation of the employee in the defense
of any such action or proceeding in defense of any action or
proceeding against the City based on the same actor omission, and
the assistance of the employee in the prosecution of any appeal.
Section 5.47 The benefits of this Article shall inure only to
employees as defined herein and shall not enlarge or diminish the
rights of any other party nor shall any provision of this Article
be construed to affect, alter, or repeal any provision of the
worker's compensation law.
Section 5.48 This Article does not in any way affect the
obligation of any claimant to give notice to the City as required
under Section 50 -e of the General Municipal Law or any other
provision of law.
Carried Unanimously
Postering Issue - Report
Alderperson Peterson reported that at the Charter and Ordinance
Committee meeting on September 12, the issue of postering will be
discussed.
BUDGET AND ADMINISTRATION COMMITTEE:
* 16.1 DPW Request to Amend 1991 Equipment List
By Alderperson Booth: Seconded by Alderperson Peterson
RESOLVED, That the Authorized Equipment List of the Department of
Public Works' Water and Sewer Funds be amended by adding one two -
way radio at $900 to the Water Fund authorized equipment list and
one two -way radio at $900 to the Sewer Fund authorized equipment
list, and be it further
RESOLVED, That the $1,800 be derived from available funds in the
following accounts:
F 8316 -225 Shop & Equipment Other Equipment $900
G 8116 -225 Shop & Equipment Other Equipment $900
to allow the acquisition of said equipment.
Carried Unanimously
* 16.2 Fire Department Request for Expenditure of Code
Reimbursement Funds
By Alderperson Booth: Seconded by Alderperson Peterson
RESOLVED, That the Authorized Equipment List of the Fire Department
be amended by adding two flat files with mounting base for $1,095
and one software upgrade for $100, and be it further
RESOLVED, That $1,195 be transferred from Account A690 -6 New York
State Building and Fire Code Aid to the following accounts:
A 3410 -225 Other Equipment
A 3410 -425 Office Expense
$1,095
$ 100
to allow for the acquisition of such equipment.
Carried Unanimously
11
L153—
September 4, 1991
* 16.3 Finance Department Re guest to Transfer Funds
By Alderperson Booth: Seconded by Alderperson Romanowski
WHEREAS, the City has received the final utility bill for Fire
Station No. 6 in the amount of $2, 307.41 for the period of December
1990 through April 1991, and
WHEREAS, the City's portion of the utility bill, based on an
allocation of agencies occupying Fire Station No. 6 prior to its
closure in April 1991, is $449.23; now, therefore, be it
RESOLVED, That $449.23 be transferred from account A1990
Unrestricted Contingency to account A3410 -410 Fire Department
Utilities for the purpose of paying the City's portion of the final
utility bill for Fire Station No. 6. Carried Unanimously
* 16.6 Audit
By Alderperson Booth: Seconded by Alderperson Romanowski
RESOLVED, That the bills presented, as listed on Audit Abstract
16/1991 in the total amount of $55,940.63 be approved Ced Unanimously •
rr
PLANNING AND DEVELOPMENT COMMITTEE:
* 17.1 Zoning Ordinance Amendment: Two -year Limit on Zoning
Variances Call for Public Hearing
By Alderperson Hoffman: Seconded by Alderperson Schroeder
RESOLUTION OF COMMON COUNCIL INTRODUCING
PROPOSED CHANGES TO THE ZONING ORDINANCE AND
PROVIDING FOR PUBLIC NOTICE AND PUBLIC HEARING
BE IT RESOLVED that Ordinance Number 91- entitled "An
Ordinance Amending Section 30.58 Entitled `Board of Appeals' of
Chapter 30 Entitled `Zoning' of the City of Ithaca Municipal Code"
be and is hereby introduced before the Common Council of the City
of Ithaca, New York; and
BE IT FURTHER RESOLVED that the Common Council shall hold a
public hearing in the matter of the adoption of the aforesaid
ordinance to be held at the Common Council Chambers, City Hall, 108
East Green Street, Ithaca, New York, on Wednesday, October 2, 1991,
at 7:00 p.m.; and
BE IT FURTHER RESOLVED that the City Clerk give notice of such
public hearing by the publication of a notice in the official
newspaper, specifying the time when and the place where such public
hearing will be held, and in general terms describing the proposed
ordinance. Such notice shall be published once at least fifteen
(15) days prior to the public hearing; and
BE IT FURTHER RESOLVED that the City Clerk shall transmit
forthwith to the Board of Planning and Development and the Tompkins
County Planning Board a true and exact copy of the proposed
ordinance for its report thereon.
Carried Unanimously
ORDINANCE NO. 91-
An Ordinance amending Section 30.58 entitled "Board of
Appeals" of Chapter 30 entitled "Zoning" of the City of Ithaca
Municipal Code.
BE IT ORDAINED AND ENACTED by the Common Council of the City
of Ithaca, New York, as follows:
Expiration of Variances
12
Vs:s
September 4, 1991
BE IT ENACTED by the Common Council of the City of Ithaca, New
York, as follows:
Section 1. Amend Article 3 of the City of Ithaca Charter
Article 3, Section 3.3 of the Ithaca City Charter is hereby
amended to read as follows:
"Section 3.3 Procedure at Meetings: Minutes: Quorum
At all meetings of the Common Council, the Mayor, when
present, shall preside. In the proceedings of the Common Council,
each member present shall have a vote except the Mayor, who shall
have only a casting vote when the votes of the other members are
tied, and except as hereinafter provided. The sittings of the
Common Council shall be public except when the public interests
shall require secrecy. The minutes of the proceedings shall be
kept by the City Clerk, and the same shall be open at all times to
public inspection. A majority of the members of the Common Council
shall be quorum for the transaction of business. In the event that
fewer than ten members of Common Council vote on any substantive
M question (if a member abstains from voting, it shall be considered
as if that member did not vote) the concurring vote of five or more
Co alderpersons shall be sufficient to exercise any power which may be
< exercised by the majority vote of Common Council, but no tax or
assessment shall be ordered except by a concurring vote of majority
of all members of the Common Council in office, including the
Mayor, who shall be entitled to vote thereon as a member of the
Council, and no tax levied, assessment bill ordered, resolution or
ordinance shall take effect until the same shall receive the
approval of the Mayor, as hereinafter provided."
r
Section 2. Effective Date
This law shall take effect immediately
after filing in the
Office of the
Secretary of State.
Carried Unanimously
Mayor Nichols
stated that with the enactment
of this Local Law it
is necessary
to have the concurring vote
of at least five
alderpersons.
If it is a 5 -5 vote then the
Mayor could vote to
break a tie.
* 15.2 An Ordinance Amending Chapter 5 Entitled `City Officers and
Employees', Article IV Entitled `Reimbursement of Defense Costs of
City Employees for Civil Actions' of the City of Ithaca Municipal
Code
By Alderperson Peterson: Seconded by Alderperson Romanowski
ORDINANCE NO. 91-
An Ordinance amending Chapter 5 entitled "City Employees"
of the City of Ithaca Municipal Code
BE IT ORDAINED AND ENACTED BY THE COMMON COUNCIL OF THE CITY
OF ITHACA, NEW YORK, AS FOLLOWS:
(awooll Section 1. That Chapter 5, entitled "City Officers and
Employees" of the City of Ithaca Municipal Code is amended to add
a new Article to read as follows:
A new Article to be known and designated as Article IV, to
follow Article III, and is hereby added to said Chapter to read as
follows:
ARTICLE IV
REIMBURSEMENT OF DEFENSE COSTS OF CITY
EMPLOYEES FOR CIVIL ACTIONS.
9
�5q,
Section 5.40
September 4, 1991
Subject to the limitations set forth in subsequent sections of
this Article, the City of Ithaca desires to and hereby does provide
for the defense of its officers and employees, whether the employee
is sued individually or in his or her capacity as a City officer or
employee, in all civil actions and proceedings, whether in state or
federal officer employee was acting w thin tdhe to have scope of his or
while the e of of r
P
her duties for the City of Ithaca.
Section 5.41 Employee: The term employee shall mean any
commissioner, member of a public boa d o c mmission, tr ee,
director, officer, employee, expressly r ed
participate in publicly sponsored volunteer programs, or any other
person holding a position by election, appointment or employment,
including the City Attorney, in the service of the City of Ithaca,
whether or not compensated. The term "employee" shall include a
former employee, his or her estate or judicially appointed personal
representative.
Section 5.42 Limited Right to Defense:_ The City of Ithaca
shall defend or provide for the defense of its employees and
officers in any civil action or proceeding, State or federal,
arising out of any alleged act or omission which occurred or
allegedly occurred while the employee was acting within the scope
of his or her public employment or duties. This duty to provide
for a defense shall not arise where such civil action or proceeding
is brought by or at the behest of the City.
Section 5.43 Limited right to private representation:
Subject to the conditions set forth in the preceding paragraph, the
employee shall be entitled to be represented by private counsel of
his or her choice in any civil action or proceeding whenever the
City Attorney or other counsel designated by the City determines
that a conflict of interest exists; whenever a court, upon
appropriate motion or otherwise by special proceeding, determines
that a conflict of interest exists, and that the employee is
entitled to be represented by counsel of his or her choice; or
whenever the City determines that it is appropriate for the
employee to be represented by private counsel of his or her choice.
The City Attorney or other counsel designated by the City may
require, as a condition of the payment of the fees and expenses of
such representation, that appropriate groups of employees be
represented by the same counsel. Reasonable attorney's fees and
litigation expenses shall be paid by the City to such private
counsel from time to time during the pendency of the civil action
or proceeding with the approval of the Budget & Administration
Committee of Common Council.
Section 5.44 Disputes: Any dispute with respect to
representation of multiple employees by a single counsel or the
amount of litigation expenses or the reasonableness of attorney's
fees shall be resolved by a court upon motion or by way of a
special proceeding if it cannot be resolved by the employee and the
City Attorney or the Budget & Administration Committee.
Section 5.45 Duty to avoid default: Where an employee
delivers process and a written request for defense to the City
pursuant to Section 5.49 below, the City shall take the necessary
steps on behalf of the employee to avoid the entry of a default
judgment pending resolution of any question pertaining to the
obligation to provide a defense.
Section 5.46 Conditions on duty to defend: The duty to
defend or indemnify and save harmless prescribed by this Article
shall be conditioned upon:
10
0
J
September 4, 1991
WHEREAS, not providing or reducing needed services in times of
crisis to those populations eventually costs more to the City and
to the larger society, with increased crime, drug abuse, need for
welfare and unemployment benefits, etc., and
WHEREAS, the benefits of human service programs cannot be measured
in dollars, alone, and
WHEREAS, Ithaca prides itself on being a fair and caring community,
and
WHEREAS, the physical infrastructure of the city does not
deteriorate more quickly during economic hard times, while families
and individuals do, and
WHEREAS, funding of private volunteer agencies is one of the more
efficient uses of city funds; now, therefore, be it
RESOLVED, That Common Council asserts that human service agency
co funding is of the highest priority, and be it further
RESOLVED, That in reducing the total City budget due to cuts in
State funding and other shortfalls, the human service agencies
m portion of the budget not be seen as equal to other parts of the
Q budget, but as critical for assisting those in need, and be it
further
RESOLVED, That every attempt be made to fund the human service
agencies at the same level as last year.
Alternative Resolved Clauses
By Alderperson Booth: Seconded by Alderperson Blanchard
RESOLVED, That the following three Resolved Clauses replace the
three Resolved Clauses in the original resolution:
RESOLVED, That funding for human service agencies will be of the
highest priority in setting the 1992 City budget, such agencies
being those that have been recommended for City funding by the
Human Services Coalition as a result of a review conducted by the
Coalition on the City's behalf, and be it further
RESOLVED, That in setting the 1992 City budget Common Council shall
recognize that funding for said human service agencies is critical
for assisting those in need, and be it further
RESOLVED, That in setting the 1992 City budget Common Council shall
make every reasonable effort to provide a total amount of funding
for said human service agencies for both existing and any new
programs considered collectively, that is equal to the total amount
of funding committed to those purposes in the 1991 City budget
($147,738). Council does not hereby make any statement regarding
potential City funding that may be available to any particular
human service agency.
Alderperson Booth explained the three Resolved Clauses.
Discussion followed on the floor.
A vote to accept the three alternative Resolved Clauses in place of
the three Resolved Clauses in the original resolution resulted as
follows:
Carried Unanimously
7
L) i-2,
September 4, 1991
The Main Motion as Amended shall read as follows:
WHEREAS, the City, families and individuals are feeling the effects
of the current economic crisis, and
WHEREAS, this crisis affects low - income families and individuals
more severely than others, and
WHEREAS, the human services agency portion of the City budget
attempts in part to help meet the needs of those families and
individuals, and
WHEREAS, not providing or reducing needed services in times of
crisis to those populations eventually costs more to the City and
to the larger society, with increased crime, drug abuse, need for
welfare and unemployment benefits, etc., and
WHEREAS, the benefits of human service programs cannot be measured
in dollars, alone, and
WHEREAS, Ithaca prides itself on being a fair and caring community,
and
WHEREAS, the physical infrastructure of the city does not
deteriorate more quickly during economic hard times, while families
and individuals do, and
WHEREAS, funding of private volunteer agencies is one of the more
efficient uses of city funds; now, therefore, be it
RESOLVED, That funding for human services agencies will be of the
highest priority in setting the 1992 City budget, such agencies
being those that have been as a result of af� eviewycondudcte by the
Human Services Coalition d by the
Coalition on the City's behalf, and be it further
RESOLVED, That in setting the 1992 City budget Common Council shall
recognize that funding for said human service agencies is critical
for assisting those in need, and be it further
RESOLVED, That in setting the 1992 City budget Common Council shall
make every reasonable effort to provide a total amount of funding
for said human service agencies for both existing and any new
programs considered collectively, that is equal to the total amount
of funding committed to those purposes in the 1991 City budget
($147,738). Council does not hereby make any statement regarding
potential City funding that may be available to any particular
human service agency.
Main Motion as Amended
A vote on the Main Motion as Amended resulted as follows:
Ayes (8) - Johnson, Daley, Cummings, Peterson, Romanowski,
Golder, Schroeder, Booth
Nays (2) - Blanchard, Hoffman Carried
CHARTER AND ORDINANCE COMMITTEE:
* 15.1 A Local Law Amending Section 3.3 Entitled `Procedure at
Meetings Minutes; Quorum' of the Ithaca City Charter
By Alderperson Peterson: Seconded by Alderperson Romanowski
LOCAL LAW NO. OF THE YEAR 1991
CITY OF ITHACA
A Local Law Amending Section 3.3 of the Ithaca City Charter
X.
J
W9
September 4, 1991
d. During the summer months when the pool will be in
operation, there are currently no parking problems in the
neighborhood.
2. Side Yard Deficiencies:
a. The placement of the pavilion at the corner is necessary
to meet its function as a community gathering space.
b. Careful analysis of the design has demonstrated that no
vehicular visibility problems will be caused by the placement of
any improvement on the site.
C. Relocation of the structures to meet area zoning criteria
would seriously compromise the design goals of the project.
3. The non - conformities to the Zoning Ordinance represent a
relatively minor deviation from the area requirements.
4. The development of this project as planned would produce a
substantial positive change to the neighborhood.
5. The development of this project as planned will result in the
immediate improvement of the delivery of governmental services to
Q the neighborhood.
6. The neighborhood to be benefitted by a Municipal Pool includes
a proportionately high percentage of low - income, single parent
families with a high proportion of school age children for whom the
existence of the pool is an extremely important resource.
7. Any redesign of the project to meet the zoning requirements
would delay completion of the project and the opening of the pool
(400.4-1 beyond December of 1992 which would severely negatively affect the
neighborhood;
now, therefore, be it
RESOLVED, That the construction of a City of Ithaca Municipal Pool
as currently designed is exempt from the area requirements of the
Zoning Ordinance.
Alderperson Romanowski spoke in opposition to waiving the zoning
requirements for this project. He stated, for the record, "If our
zoning requirements are so inflexible that all people are not able
to work on projects, no matter who they are, within a framework
which is able to make allowances for the common good, then maybe
there requirements should be changed in the Zoning Ordinance. If
we have elements of this particular project that need to be
addressed pertaining to meeting zoning requirments, let us do that.
By waiving our Zoning Ordinance in relation to this project because
it is a municipal or governmental project invites justifiable
criticism from the private sector that we are establishing a double
standard and for this reason I am going to vote against this. I am
not voting against this because I think the project is bad or any
other element in the project but because we have a double standard
as far as government and the private sector are concerned and I
think that is wrong."
Extensive discussion followed on the floor with GIAC Director Fort
and Planning and Development Director VanCort answering questions
from Council members.
Alderperson Booth referred to a memo that he sent to the Mayor and
Council members and explained in detail his reasons for objecting
to this waiver of the Zoning Ordinance. (A copy of the memo is
attached to the Minute Book).
5
September 4, 1991
to Alder
City Attorney Guttman respan de da d he right oof Btheh Counc ml rto
regarding the Zoning Ordln
waive the same.
Further lengthy discussion followed on the floor with Alderpersons ard
expressing their opinions in the gri ht to wai ve oit 9 Ordinance and
whether or not the City has 9
Alderperson Schroeder noted that
and explained in detail his
requirements should be waived .
is attached to the Minute Book).
Alderperson Peterson suggested that
the resolution. No Council member
he will be voting for this project
reasons for feeling the zoning
(A complete text of his statement
Further discussion followed.
item 2a be stricken from
objected.
Amending Resolution
By Alderperson Peterson: Seconded by Alderperson after words
RESOLVED, That in the last Resolved Clause,
"currently designed ", the words "without the pavilion" be added.
Discussion followed on the floor on the pros and cons of adding the
pavilion to this project.
A vote on the Amending Resolution resulted as follows:
Ayes (5)
- Blanchard, Romanowski, Peterson, Booth, Hoffman
Nays (5) - Daley, Cummings, Johnson, Schroeder, Golder
Mayor Nichols voted Nay, breaking the tie.
Motion Fails
After further discussion, the vote on the 'Main Motion as Amended
resulted as follows:
Ayes (5) - Johnson, Golder, Daley, Cummings, Schroeder
Nays (5) - Booth, Hoffman, Peterson, Blanchard, Romanowski
Mayor Nichols voted Aye, breaking the tie.
Carried
Mayor Nichols, for the record, stated that he does not think the
good design; it
Council made anbmistakes. o and the people of the City, which i s the
serves the neigh Law. He
intention of the Zon ht it compliccat d the issue. against Hefurther said that he voted
pavilion because he thou g this t
stated that he will have tu aofregreg this ato any b�me in
the community and he do not expect
the future.
Recess
Common Council recessed at 8:35 p.m. and reconvened at 8:55 P.m-
HUMAN SERVICES COMMITTEE:
* 14.1 Cit ,s Commitment to Human Service A encies
By Alderperson Johnson: Seconded by Alderperson Daley
WHEREAS, the City, families and individuals are feeling the
of the current economic crisis, and
families and individuals
effects
WHEREAS, this crisis affects low- income
more severely than others, and
services agency portion of the City budget
help meet the needs of those families and
WHEREAS, the human
attempts in part to
individuals, and
2
z7
/7
September 4, 1991
REPORT OF CITY BOARDS COMMISSIONS AND COMMITTEES:
Board of Public Works
Mayor Nichols read the following resolution that was passed
unanimously at the BPW Committee of the Whole meeting today:
"WHEREAS, the Downtown Ithaca Inc. has urged that the
reconstruction work on The Commons be done in the Spring of 1992,
and
(410"" WHEREAS, this Board sees no engineering disadvantages to a Spring
or Summer project; now, therefore, be it
RESOLVED, That The Commons reconstruction be delayed to the Spring
or Summer of 1992, and be it further
RESOLVED, That all bids received for the reconstruction of The
Commons be rejected, and be it further
RESOLVED, That an opportunity be given to the groups that may be
co affected by reconstruction work on The Commons in the Spring or
co Summer, to present their views to the Board before the project with
revised construction schedule is submitted for bids, and be it
further
m
Q RESOLVED, That Common Council be requested to amend the Capital
Project Budget for The Commons reconstruction to provide sufficient
funds to complete the entire project."
Mayor Nichols explained to Council why the project is being delayed
and answered questions from Council.
Disability Advisory Council
LeMoyne Farrell, representing DAC, thanked Council for the
automatic door openers that have been installed in City Hall.
Ms. Farrell thanked Acting Supt. Gray for his interest in the
proposed improvements for the handicapped at Stewart Park.
Ms. Farrell reported on a workshop that was held in Syracuse in
August regarding enforcement of handicapped parking by volunteers.
Ms. Farrell stated that the DAC is considering public announcements
regarding the necessity of clearing sidewalks of ice and snow in
the winter, etc.
BUDGET AND ADMINISTRATION COMMITTEE:
* 16.5 Request to Increase Authorization of Capital Project #217
GIAC Pool Project
By Alderperson Booth: Seconded by Alderperson Schroeder
WHEREAS, the conceptual design of the GIAC Pool project has been
completed, and
WHEREAS, based on said design, the Client Committee has recommended
that the original project authorization of $450,000. be amended to
reflect a revised scope of work and the corresponding projected
increase in cost, and
WHEREAS, due to budgetary constraints, the B &A Committee has
recommended certain further economies should be made in the design
of the facility; now, therefore, be it
RESOLVED, That Capital Project #217 for the construction of the
GIAC Pool be amended from $450,000. to a maximum cost of $520,000.,
and be it further
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September 4, 1991
RESOLVED, That the additional $70,000. be financed as follows:
A. Down payment of $3,500. shall be transferred from Account
A1990 Unrestricted Contingency.
B. The balance of $66,500 shall be derived from the issuance
of Serial Bonds.
Amending Resolution
Seconded by Alderperson Daley
By Alderperson Schroeder:
RESOLVED, That the first Resolved Clause be amended to read as
follows:
"RESOLVED, That Capital Project #217 for the construction of the
GIAC Pool be amended from $520,000. to a maximum cost of $550,000.,
for the purpose Resolved of including th corner pavi accordingly.
the figures
in the second
Ayes (6) - Schroeder, Daley, Hoffman, Cummings, Golder,
Johnson
Nays (4) - Romanowski, Blanchard, Booth, Peterson
Main Motion as Amended
A vote on the Main Motion as Amended resulted as follows:
Ayes (5) - Schroeder, Daley, Cummings, Golder, Johnson
Nays (5) - Booth, Hoffman, Romanowski, Blanchard, Peterson
Mayor Nichols Voted Nay, breaking the tie.
Motion Fails
PLANNING AND DEVELOPMENT COMMITTEE:
* 17.3 CitV of Ithaca Municipal Pool - Exemption from Zoning
Ordinance Area Requirements
By Alderperson Hoffman: Seconded by Alderperson Schroeder
WHEREAS, a plan for a proposed City of Ithaca Municipal Pool has
been prepared and approved by the Client Committee and by the
Planning and Development Board; and
WHEREAS, Common Council budget ebaseddonhthese drawings; and s and
approved a construction
WHEREAS, certain factors in the plan do not conform with the area
requirements °a the front yard Ordinance,
requiremengs; the
and parking
requirements an
WHEREAS, pursuant to New York law as stated by the New York Court
of Appeals in the case of Matter of Monroe County and its progeny,
it is the responsibility of Common Council to determine whether it
must follow its own zoning regulations to balance the public
interests of a municipal project with the public interests of local
land use regulations; and
WHEREAS, Council has balanced the following factors with regard to
the City of Ithaca Municipal Pool:
1. Parking:
a. The mini pool has operated on the subject site since 1968
and has not caused parking problems for the neighborhood.
b. Most of the users of the City of Ithaca Municipal Pool
will be neighborhood residents and, therefore, very few users of
the pool will drive to the site.
C. Construction of additional parking at the site would
require the paving of existing green space which is an important
recreational asset for the neighborhood.
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COMMON COUNCIL PROCEEDINGS
CITY OF ITHACA, NEW YORK
Regular Meeting 7:00 p.m. September 4, 1991
PRESENT:
Mayor Nichols
Alderpersons (10) - Booth, Johnson, Golder, Hoffman, Peterson,
Daley, Cummings, Blanchard, Romanowski,
Schroeder
OTHERS PRESENT:
City Clerk - Paolangeli
City Controller - Cafferillo
Deputy City Controller - Thayer
Planning and Development Director - VanCort
Police Chief - McEwen
Youth Bureau Director - Cohen
Personnel Administrator - Saul
Fire Chief - Olmstead
(o Acting Building Commissioner - Eckstrom
City Attorney - Guttman
—� Acting Superintendent of Public Works - Gray
County Board of Representatives - Lerner
Q PLEDGE OF ALLEGIANCE:
Mayor Nichols led all present in the Pledge of Allegiance to the
American flag.
MINUTES•
Approval of Minutes of the August 7, 1991 Common Council Meeting
By Alderperson Johnson: Seconded by Alderperson Romanowski
RESOLVED, That the Minutes of the August 7, 1991 Common Council
meeting be approved as published, with the wording of the Resolved
(40000, Clause on page 6 (Item 15.2 - Location of New Street - Main Motion
as Amended) to be clarified.
Carried Unanimously
ADDITIONS TO OR DELETIONS FROM THE AGENDA:
New Business
Alderperson Peterson referred to the Item under New Business,
Appeal to Common Council Regarding Denial of the Vacancy Committee
to Fill a Youth Worker Position (Teen Program- GIAC). She reported
that the matter has been resolved within the Vacancy Committee and
the position will be filled; therefore the item is withdrawn from
the agenda.
MAYOR'S APPOINTMENTS:
Re- apportionment Committee
Mayor Nichols requested approval of Council for the appointment of
the following persons to the Re- apportionment Committee:
Ray Schlather - Ward 1 - 201 Sunrise Road
Bill Myers - Ward 2 - 313 Hudson Street
Ann Clavel - Ward 3 - 109 Cornell Street
John Marcham - Ward 4 - 414 East Buffalo Street
Frank Moore - Ward 5 - 116 Dearborn Place
Tony Poole - Ward 5 - 107 West Jay Street
(400'el Jean Cookingham - Ward 2 - 119 East Buffalo Street
Keith McNeil - Ward 1 - 139 Oakwood Lane
Cassandra Nelson - Ward 2 - 502 South Albany Street
Resolution
By Alderperson Johnson: Seconded by Alderperson Blanchard
RESOLVED, That this Council approves the appointment of the above -
named persons to the Re- apportionment Committee.
Carried Unanimously
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September 4, 1991
PETITIONS AND HEARINGS OF PERSONS BEFORE COUNCIL:
City Budget
Guy Gerard spoke to Council regarding the attrition policy that
Council put in place to help close the budget gap. He asked
Council to consider putting a cap on the number of employees each
department might lose.
GIAC P001
Guy VanBenschoten, 602 North Cayuga Street, spoke to Council and
outlined his reasons for not supporting the resolution regarding
the GIAC Pool. He urged Council not to pass this resolution.
Save Our Strand
Paul Sayvetz, 201 Elm Street, representing "Save Our Strand ",
extended an invitation to Council members and the public to attend
a public forum which will include a representative from the League
of Historic American Theatres on September 9th at 7:30 p.m. in the
second floor Conference Room of City Hall.
RESPONSE TO THE PUBLIC:
GIAC POOL
Mayor Nichols stated that what is being proposed is a neighborhood
poolit ismayneighboorho d pool that may be e
beused by all members programs
memberrsof
but
the community.
Alderperson Romanowski stressed the importance of the understanding
that the proposed pool will be a municipal pool that will be
serving a neighborhood.
REPORT OF BOARD OF REPRESENTATIVES:
Mr. Eric Lerner, 1st Ward Rep. of the City updated Council on the
following items:
1992 Budget Cycle - The County is entering the first phase of the
1992 budget cycle. They are going to have to respond to the rather
painful State budget cuts as well as growing expenses that for the
County come directly from the recession. The County is hoping to
avoid lay -offs but at this point it is not clear if they will be
able to do that.
Off -Track Bettinq - The Board has approved going forward with Off -
Track Betting in Tompkins County, which would hopefully generate
some revenue for the County. It will be subject to a permissive
referendum at the next general election if a sufficient number of
signatures are gathered within the next 45 days.
Bus Garage - The cooperative City, County, Cornell bus garage
project has been moving forward and is about ready to go out for
bid.
Job Training the Job Training Program.rThe 1Board may some havectop
problems with re-
think the entire program.
Local Unit Pricing Legislation - The Board is taking a serious look
at local unit pricing legislation so the consumer can tell the
price of the things they are buying in a reliable way.
Local Law C, Gay and Lesbian Fair Practice Ordinance - There is a
group working obably revised version of the Fair Practices
back before the Board before the nd of the
and it probably
year.
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