HomeMy WebLinkAboutMN-BPW-2007-09-19BOARD OF PUBLIC WORKS PROCEEDINGS
CITY OF ITHACA, NEW YORK
Committee of the Whole Meeting 4:45 p.m. September 19, 2007
PRESENT:
Mayor Peterson
Commissioners (6) - Jenkins, Dotson, Chapman, Schlather, Tripp, Wykstra
OTHERS PRESENT:
City Attorney - Hoffman
Superintendent of Public Works - Gray
Assistant Superintendent of Water and Sewer – Whitney
Common Council Liaison – Coles
DAC Liaison – Roberts
Information Management Specialist - Myers
Deputy Director of Planning & Development – Cornish
EXCUSED:
Assistant Superintendent of Streets and Facilities - Ferrel
ADDITIONS TO OR DELETIONS FROM THE AGENDA:
Mayor Peterson requested that the Board consider moving item #4 on their agenda –
Natural Areas Commission (NAC) Proposed Permit Process for DPW’s Work in the Six-
Mile Creek Watershed area to the beginning of the meeting since a representative from
the NAC was present at the meeting to discuss this item.
No Board Member objected.
Natural Areas Commission – Proposed Permit Process for DPW’s Work in the Six-
Mile Creek Watershed Area
Superintendent Gray explained that the Natural Areas Commission (NAC) had been
seeking to have the Board adopt a set of ecologically informed guidelines for DPW work
in the watershed area as well as other designated natural areas in the City. The
commission has submitted for the Board’s consideration proposed guidelines and
application for work in the designated areas. They have also requested that trash
receptacles be placed in the watershed area which city staff has denied, as the request
was treated similar to other requests for the City’s parks.
Wendy Wallitt, Vice Chair of the Natural Areas Commission (NAC) addressed the Board
to explain that the purpose of the guidelines is to ensure that any work done in any
Natural Area by any entity including the City, NYSEG, Bolton Point, Town of Ithaca, and
others, is done using the best practices available to minimize damage. The proposed
Plan of Work approval process will ensure that the City is aware of any upcoming work
in the Natural Areas and has approved the means by which it will be accomplished.
She also stated that these guidelines were established in part because of recent work
done by the Town of Ithaca in the Six Mile Creek area that caused significant
disturbance. She explained that the role of the NAC is to provide recommendations to
the Board of Public Works, and that Commissioners Jenkins and Wykstra serve as
liaisons to the NAC.
Vice Chair Wallitt explained that their proposal suggests that anyone wishing to do work
in a natural area describe their plan of work. The work plans would be reviewed by city
staff, the Board of Public Works, and the NAC for any area larger than 200 square feet.
This would insure that important areas of concern to the NAC and the City are
addressed with the contractor and outlined in the approved plan before any work
begins.
Commissioner Dotson arrived at 5:07 p.m.
Commissioner Tripp stated that she would like to have information from staff regarding
the frequency that city crews, NYSEG or other entities do work in these areas to
establish a baseline for reference as they consider this proposal.
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September 19, 2007
Superintendent Gray stated that staff could provide an idea of the scope of work being
done in the natural areas to the Board of Public Works for their information. He further
stated that he is not interested in providing another document and/or drawing to
additional committees for review because it would add time to the project and would
affect the spontaneity and opportunity to do work in these areas. He further stated that
he does not regard the watershed area as being undeveloped because the City planted
trees there and it is considered a developed area for purpose of use. He further stated
that he would not support this recommendation.
Commissioner Chapman arrived at 5:14 p.m.
Ms. Wallitt explained that the NAC wasn’t recommending adding another regulatory
layer for people to go through. The commission’s goal is to have anyone doing work in
any natural area consider what is allowed by City Code and the recommendations of the
Board of Public Works and NAC when they do the work.
Mayor Peterson explained that because of the other items on the agenda for
consideration at this meeting, the Board had to limit the discussion on this item. She
explained that they could dedicate more time for this item at their next Committee of the
Whole meeting and thanked Ms. Wallitt for coming to the meeting to begin the
discussion of this item.
Nancy Ramage, former NAC member addressed the Board in support of the NAC’s
request to place trash bins in the Six Mile Creek Natural Area. She explained that the
primary location for trash bins to be placed is the entrance to the Mulholland Wild
Flower Preserve located off Giles Street. She explained that since there are no
receptacles, trash is left in the preserve. She stated that some well-meaning users of
the area do pick up the trash and take it home, but the majority pick it up and leave it at
the entrance because they do not wish to take home someone else’s trash. She stated
that trash bins placed at the entrance would promote keeping that area beautiful.
Water Plant Scoping Document – Possible Power to Act
Rick Gell and Steve Eckler from O’Brien and Gere were present at the meeting, along
with Deputy Director of Planning & Development Cornish to participate in the discussion
and to explain how to read the prepared documents that contain public comments
regarding the Water Plant options.
Extensive discussion followed on the floor regarding what items to include in the final
scoping document. Some of the discussion focused on “safe yield”, droughts and their
effects on the water sources and minimal downstream levels required in order to
maintain the natural area in the Mulholland Wild Flower Preserve and aquatic life.
Mr. Gell responded that O’Brien and Gere have flow records of the watershed area and
any work done in that area will not have a significant impact on water flow.
Commissioner Schlather asked how complicated it would be to have a thorough legal
analysis completed to see what measures must be taken if this area is not used as a
watershed in the future. He questioned whether the land would be considered vacant or
protected under our designated natural areas or could the city sell it for financial gain if
needed in the future. He stated that the current Council may want to see the area
preserved but that doesn’t guarantee that future Councils would have the same goal.
City Attorney Hoffman explained that the City of Rochester used to get its water from
Canandaigua Lake for many years and that one would assume that lakes would be
protected natural areas. However, now the City of Rochester is considering the land
around the lake valuable and they plan to sell it for development and obtain their water
from Lake Ontario. He stated that the same thing could happen here in the future.
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September 19, 2007
Discussion followed on the floor about what areas within the watershed that the City of
Ithaca would control as the area extends into the Town of Ithaca. Common Council can
only make decisions on land located in the City of Ithaca. Further discussion followed
on the floor on how Common Council could change the City Charter to include and
preserve the watershed area as a Natural Area.
Mayor Peterson left the meeting at 6:30 p.m. and Vice Chair Dotson assumed the
position of Chair for the remainder of the meeting.
Further discussion followed on the floor regarding how the concerns and
recommendations that the Board had could be incorporated into the scoping document
and the environmental impact statement and what remaining funds are in the capital
project to cover these areas of concern.
Superintendent Gray stated that a budget was developed for this project and he would
investigate the status of funding. He stated that there might be enough money still in
the budget to cover the cost of the additional items of concern raised by the Board. He
explained that there is money in the capital project budget to study emergent
contaminants and he will report back to the Board with the findings.
The consultants explained that they would incorporate the Board’s recommended
comments and concerns into a “red-lined” document. The final scoping document
would come back to the Board for a final review and approval possibly by the October 3,
2007 meeting.
Power to Act - Approval of Final Draft Environmental Impact Statement –
Resolution
By Commissioner : Seconded by Commissioner
WHEREAS, On April 11, 2007, the Board of Public Works for the City of Ithaca acting
as Lead Agency, determined that the Proposal to Upgrade or Replace the Current
Water Supply of the City of Ithaca may have a significant environmental impact and that
a draft Environmental Impact Statement must be prepared, and
WHEREAS, on July 26, 2007, the Board of Public Works held both an Agency Scoping
Session and a Public Scoping Session to help it identify issues to be analyzed in the
draft Environmental Impact Statement for the proposal to upgrade or replace the current
water supply of the City of Ithaca, and
WHEREAS, the Board of Public Works advertised a public comment period of the
proposed scope which closed on August 8, 2007, and
WHEREAS, the Board of Public Works received, analyzed and incorporated substantive
comments from the public regarding issues to be included in the scope; now, therefore
be it
RESOLVED, That after considering both the written scope and the comments made
during the public comment period, the Board of Public Works for the City of Ithaca
adopts the scope adopted on May 25, 2007 and last revised June 22, 2007, to be used
for the draft Environmental Impact Statement for the proposal to upgrade or replace the
current water supply of the City of Ithaca.
No action was taken on this item at today’s meeting. It will be placed on the agenda for
discussion and possible vote at the October 3, 2007 Committee of the Whole meeting.
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September 19, 2007
Proposed Transfer of Ownership of the Former Southwest Park - Update
City Attorney Hoffman advised the Board that Common Council is moving forward with
plans to make the Southwest Park area into a new residential neighborhood. He stated
that the proposal is going before the Planning & Economic Development Committee
tonight for consideration. That approval would authorize the transfer of the land to the
Ithaca Urban Renewal Agency (IURA) who would name the eligible sponsor for the
project. He further stated that the City’s Public Works department has operations still
occurring in that area that will be re-located. He explained that the selection of a
qualified sponsor would happen soon and that Common Council would vote on the
proposal at their October 3, 2007 meeting to convey the area to the IURA for ownership.
Superintendent Gray explained that there are remnants of an old quarry that extends to
the edge of State Park lands in the proposed new public works operations area. He
stated that it has been used as a hard fill site and that the City needs to designate
another area to be used as a hard fill site to dispose of construction debris. He further
stated that drawings have been completed that need to go through the Town of Ithaca
for approval. He explained that the City Attorney felt it was important to update the
Board to help the Department of Public Works start the process of moving to a new
location. This process will take several months, as the Town Planning Board needs to
review the plans and do the proper notification to the other municipalities.
Deputy Director of Planning and Development Cornish offered to help the
Superintendent’s office with this project and to help get it to the Town Planning Board
for consideration.
Superintendent Gray thanked Deputy Director of Planning and Development Cornish for
her offer of assistance and stated that her help would be appreciated.
Commissioner Dotson questioned if the Board needed to do anything to help with this
project at this point.
City Attorney Hoffman explained that discussions of this proposal have been going on
for years. He stated that it would appear that this land has been declared surplus, so if
the Board is comfortable with that, nothing further needs to be done.
Commissioner Chapman asked how long this new fill site was expected to last.
Superintendent Gray responded that the proposed site would last for approximately 40
years and should accommodate the needs of other municipalities that often request to
put some of the fill from their construction activities in the City’s hard fill site.
University Avenue/ Milstein Hall - Update
City Attorney Hoffman reported to the Board that he had written an outline of his opinion
on the Milstein Hall/University Avenue proposal and he shared the following outline for
the Board’s information:
“Last Spring, Cornell University submitted an application for a building permit to
construct Milstein Hall and the so-called Central Avenue Parking Structure. Such an
application normally triggers the site plan review process and environmental review.
Primarily because of the unusual nature of Milstein Hall (i.e., proposed to be built over
University Avenue), the City Attorney’s office was consulted (by the chair of and staff to
the Planning Board); normally, this office does not become involved in applications for
building permits or site plan approval.
On 4/4/07, I wrote a letter to Shirley Egan, Associate Counsel for Cornell, setting forth
my position at that time. That position was based upon the understanding that
University Avenue originated as the Cortland & Seneca Turnpike, the construction of
which was authorized by the NYS legislature in 1812. Since such turnpikes, after their
authorization as toll roads expired, reverted to “the people of the State of NY,” it was
assumed that the underlying fee title to University Avenue was initially acquired by the
turnpike company and then passed to the State or the municipality. The width of a
turnpike was normally 66 feet (4 rods), except where the terrain did not allow for that.
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September 19, 2007
At that time, Cornell’s position was that it possessed the underlying fee title to University
Avenue, and that the extent of the public right-of-way (ROW) was defined by the
easement-by-user doctrine – i.e., what was actually used by the public. By my
calculation, this amounts to a ROW width of approximately 30 feet (2 travel lanes,
curbs, and a sidewalk on the north side). Arguably, the area of land devoted to the bus
shelter on the south side of the road, and the pullout in front of it, are also part of the
established, public ROW.
I said in my letter that “to the extent that the proposed Milstein Hall encroaches upon the
City’s rights associated with University Avenue, the consent of the City for such
encroachment would need to be secured before any City approval [e.g., for site plan]
can be issued.”
I did not take a position on the height of the public ROW, at that time, but I said that
under either the 4-rod or easement-by-user approach, the proposed Milstein Hall
appeared to encroach on the ROW width (because of the columns).
There have been a number of important developments since April.
1. Based on its extensive research, Cornell has concluded that the Cortland &
Seneca Turnpike was never built. The evidence I have seen is quite compelling,
and I have no strong evidence that rebuts it.
2. Cornell has supplied copies of the deeds upon which its claim to ownership of the
underlying fee title are based. Those deeds appear to confirm the University’s
claim to the fee title (per the usual interpretation of private title extending to the
middle of a road, when located in a town – as University Avenue was, until
approximately 20 years after the creation of CU) and do not refer to ownership of
the road by the turnpike company or any other entity.
3. A respected local historian from Forest Home (Bruce Brittain) has been unable to
offer any evidence that would rebut CU’s claims.
4. We have learned that the DOT standard for bridge clearance is 14’ 2”, and that
the State Building Code requires clearance of 15’ between structures and a road.
5. CU has modified its proposal.
Based on the information before me, my conclusions are as follows:
1. The Cortland & Seneca Turnpike was not constructed (and, thus, there was no
“passing” of fee title to the State or a municipality upon its discontinuation as a
toll road).
2. CU acquired the underlying fee title to University Avenue from Ezra Cornell
and/or his family, and still holds it today; the City has a well-established right-of-
way entitling it to use the street for public travel (and as a site for utilities).
3. There is no explicit definition of the width or height of the public ROW.
4. In the absence of ownership of the underlying title, the City’s rights are limited to
what has actually been in use by the public, which appears to consist of the
following:
a. As to width:
i. 2 travel lanes (currently approximately 23 feet wide)
ii. Curbs
iii. Sidewalk (on one side – currently 6 feet wide)
iv. Room for a bus pullout & adjacent shelter
b. As to height: the vertical space required for normal use of the road for
public travel, which I would say is 15 feet (see above).
5. The new, modified design for Milstein Hall does not encroach upon the public
ROW
I have reviewed CU’s new design for Milstein Hall
a. Cantilever design (no columns) eliminates any permanent intrusion into
the existing public ROW
b. Clearance between street and building is 15 feet
c. Width is actually greater; only narrowing is de minimus
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September 19, 2007
d. CU’s plans call for relocation of the southerly curb of University Avenue,
as well as the bus pullout
e. Space between buildings, through which University Avenue passes,
appears to be approximately 49.5 feet (3 rods) – which is the width
mentioned in a provision of Town Law that has been said to give the City
the right to a ROW of that width. (I don’t agree that it does, but, in any
event, it would appear that even with the construction of the proposed
Milstein Hall, a public corridor as wide as 49.5 feet would still be possible.)
Therefore, it is my opinion CU has reasonably established that it has sufficient site
control, and that the City’s review of CU’s application to construct Milstein Hall and the
Central Avenue Parking Structure can be commenced.
CU’s plans call for certain modifications to the street (to add an uphill bike lane, and to
relocate the bus shelter and pullout) and, presumably, would require partial or complete
closure of the street during construction. Those steps would eventually require
standard permits from the City, but, in my opinion, do not need to be resolved prior to
the commencement of site plan and environmental review.”
Commissioner Schlather stated that he was sorry that a decision of this magnitude
could not be discussed now due to the lateness of the hour and another committee
needing to use the room. He stated that he was concerned about the determination that
bridge heights determine air rights that a municipality owns over a street or highway,
even by acquired right-of-way instead of by fee title. He further stated that if he had
known that the City Attorney was going to present his opinion on this proposal, he would
have had his research available for the Board as well. He stated that he had some of
the research with him and cited some case law that he had researched regarding this
proposal. He further stated that he is concerned that the City Attorney’s office seems to
accept 15’ or 14’2” bridge heights as the parameters for the public’s air rights, where
case law states otherwise. He stated that the Board had heard in previous meetings
that the City’s department of public works trucks require more than 14’ heights in order
to do work in the City and the height stated in the City Attorney’s opinion does not take
into consideration what future height requirements might be needed in that area. He
further stated that in his opinion what the City Attorney has determined is narrow and is
not supported by case law and he respectfully asked the City Attorney to review
additional case law before rendering a final decision on this proposal. He also stated
that he does not accept the City Attorney’s interpretation of the facts and feels that the
Board is doing a dis-service to the public by accepting these facts regarding air rights
for future use. He encouraged the Board to take a different look at this interpretation.
ADJOURNMENT
On a motion the meeting adjourned at 7:25 p.m.
Sarah L. Myers Carolyn K. Peterson
Information Management Specialist Mayor