HomeMy WebLinkAbout12-28-11 Board of Public Works Meeting AgendaBOARD OF PUBLIC WORKS
OFFICIAL NOTICE OF REGULAR MEETING
A meeting of the Board of Public Works will be held on Wednesday, December 28, 2011, at
4:45 p.m. in Common Council Chambers — Third Floor, City Hall, 108 East Green Street,
Ithaca, New York.
Agenda
1. Additions or Deletions to Agenda
2. Mayor's Communications
3. Communications and Hearings from Persons Before the Board
4. Response to the Public
5. Reports
6. Approval of Minutes
7. Administration and Communications
8. VOTING ITEMS
8.1 Appeal of Occupy Ithaca's Request to Use DeWitt Park — Resolution
9. DISCUSSION ITEMS
9.1 Review of Attorneys Open Items
e.g.: Trash Facility under Green Garage
Use of City Property
Fees for Use of City Property
10. New Business
11. Adlournment
If you have a disability that will require special arrangements to be made in order for you to fully
participate in the meeting, please contact the City Clerk at 607 - 274 -6570 at least 48 hours before the
meeting.
The Board of Public Works meets on the second, third and fourth Wednesdays of the months at 4:45 p.m. Al meetings are tingvoting
meetings, opening vdth a public comment period. Meeting agendas are created from prior public input, Department opera, planning
issues, and requests made to the Superintendent. The Board reserves the right to limit verbal comments to three minutes and to request
written comments on lengthy or complex issues. This information may then be used to create committee agendas, vvith the speaker a
author invited to attend.
Notes for BPW Agenda, December 28, 2011
This agenda has been issued based on my understanding that three members of the Board of
Public Works requested a meeting on December 28, 2011, immediately following the Board's
meeting on December 21, 2011. While Mayor Peterson will be unavailable, the Acting Mayor
will be notified and requested to attend.
8.1 Appeal of Occupy Ithaca's Request to Use DeWitt Park - Resolution
The group Occupy Ithaca has requested that the Board of Public Works over rule my denial of
their request for use of Dewitt Park on terms outlined in their request, exhibited by their current
occupation of the park, and as recapitulated in the denial letter. I have supplied their appeal,
my denial, and the City Attorneys legal opinion concerning the occupation. Some additional
materials were in the agenda package for December 14, 2011, if you wish to review that
material as well. Since the request is to overturn my action, I have supplied a resolution that
would do that. In order to pass the resolution you would basically have to find that the legal
opinion was not valid because it did not address the situation as you understand it. Then you
would be called on to outline that understanding by providing the conditions that make the
occupation appropriate. These findings would provide the logic to defend your decision to
overturn me should a defense be required. If you do not pass the resolution, then my denial
continues to stand as written.
9.1 Review of Attorney's Open Items
Dan Hoffman has provided several topics that he would like included in a status report. This
will be useful as an update (with possible recommendations) for the next City Attorney
concerning these open items. I have listed a few of the items we discussed. This is on a time
available basis, but seemed like a good opportunity to review outstanding work as Dan
prepares to depart his office.
W6Ui.2wj. CGrnlJ., P.E.
SuPe6U te�dEnt of Public WOrkzS
nece✓ber 22, 2011
Page 2
8.1 Appeal of Occupy Ithaca's Request to Use DeWitt Park — Resolution
WHEREAS, on or about November 21, 2011, persons identifying themselves as a part of a group
called "Occupy Ithaca" and/or the "General Assembly of Ithaca" erected a number of tents, signs
and other items in a portion of DeWitt Park; and
WHEREAS, since that time, said tents (and additional tents since erected) and other items,
together with persons apparently associated with said groups, have remained in the Park on a
continuous basis, including during the hours (10:00 pm to 5:00 am) that the Park is'olosed" per
Chapter 336 of the Municipal Code of the City of Ithaca; and
WHEREAS, erection of said tents and overnight use of the Park were commenced and have
continued without a permit from the City of Ithaca, which permit is required by Chapter 336 of
the City Code; and
WHEREAS, the groups known as Occupy Ithaca/General Assembly of Ithaca have described
their activity in the Park as an `occupation protest for global revolution," and as their exercise of
their Constitutional right of free speech or expression; and
WHEREAS, on November 23, 2011, at the City's urging, the groups submitted an application to
use DeWitt Park (which they referred to as "Shawn Greenwood Park") for their activities, on a
24 -hour /day basis, until January 15, 2012; and
WHEREAS, on December 5, 2011, the General Assembly submitted a revised permit
application, requesting to use DeWitt Park for "die exercise of I' amendment rights to free
speech and assembly," including a waiver of the nighttime curfew, and for the period until
December 19, 2011, with automatic, two -week renewals thereafter `tin the absence of a
demonstrated code violation" and with "48 hours advanced notification if there are relevant
municipal code violations;" and
WHEREAS, after consulting with the First Presbyterian Church (owner of the Park), members of
Occupy Ithaca, the City Attorney, the Mayor and Common Council, and others, and reviewing
relevant historical and legal documents (including the original 1826 deed of the land to the
Church, by Simeon DeWitt, and its conditions; the 1856 agreement between the Church and
what was then the Village of Ithaca, giving the municipality the authority and responsibility to
operate the park as a "public walk and promenade;" Chapter 336 of the City Code; and a legal
opinion on the matter from the City Attorney), the Superintendent of Public Works, on
December 9, 2011, issued a written denial of the application(s); and
WHEREAS, also on December 9, 2011, Occupy Ithaca appealed the denial to the Board of
Public Works, pursuant to the provisions of Chapter 336 of the City Code; and
WHEREAS, the appeal was originally scheduled to be heard at the December 14, 2011, meeting
of the Board, but was postponed by an in- person request from members of Occupy Ithaca in a
meeting between City staff and officials and members of Occupy Ithaca; and
WHEREAS, representatives of the City attended the meeting of the General Assembly held on
December 20, 2011, and informed the group that the appeal would be heard at the next meeting
of the Board (i.e., on December 21, 2011); and
WHEREAS, at its meeting on December 21, 2011, the Board heard from the Superintendent, in
defense of his decision to deny the permit, and from members of the Occupy Ithaca group, in
favor of the Board's rescinding of said denial and issuance of the permit, and from members of
the public; now therefore be it
RESOLVED, that the Board of Public Works hereby makes the following findings, regarding the
appeal of the Superintendent's denial of the Occupy Ithaca group's application for a permit to
use DeWitt Park for an `occupation" involving an unspecified number of tents to be maintained
in the Park on a 24 -hour /day basis, for an indeterminate period of time:
1. The use of DeWitt Parkas requested by Occupy Ithaca, with the Board -
defined conditions as set forth below, would not be inconsistent with the 1856 agreement
between the Presbyterian Church and the then- Village of Ithaca, with Chapter 336 of the
City Code, with the Public Trust Doctrine of New York State, or with the policy of this
Board as to what constitutes appropriate usage of DeWitt Park.
2. The requested use, including the symbolic placement of tents on public land for an
extended period of time, represents the appellants' exercise of their right of free speech,
which right should not be curtailed by the refusal to grant a permit (with appropriate
conditions intended to avoid undue interference with the rights of others and to protect
public safety).
and be it further
RESOLVED, that, based on the Board's review of the relevant facts in this matter, and for the
reasons set forth above, the decision of the Superintendent of Public Works to deny the
application(s) of the Occupy Ithaca/General Assembly group is hereby rescinded, and a permit to
use DeWitt Park is hereby granted upon the following terms and conditions:
[Conditions to be determined]
Appeal of the 21 LL 6I
City of Ithaca's denial of Occupy Ithaca's Request to Use City Park
(tracking number 4442120111)
The City of Ithaca's denial of Occupy Ithaca's Request to Use City Park for the use of Dewitt Park by
Occupy Ithaca was arbitrary and capricious, and deprived the applicant of its rights to due process and
equal protection under the Constitution of the United States.
The City failed to follow its well- established procedures for dealing with an application of the type
submitted by Occupy Ithaca. When an applicant submits paperwork which requires the approval of
three or more City agencies, a City of Ithaca practice, policy, procedure, and/or promulgated rules and
regulations specify that an events team shall be assembled to liaise and work with the applicant.
Occupy Ithaca's application to use a City Park required the approval of the City of Ifl=a's
Superintendent of Public Works, and, according to the denial letter, the City of Ithaca Building
Department and the City of Ithaca Fire Department. Thus, the City of Ithaca should have assembled an
events team to process the permit, and not left it to just the Superintendent of Public Works to decide
all by himself. By having just the Superintendent of Public Works rule on the permit, the City of Ithaca
deprived the applicant of its rights to due process and equal protection under the law as guaranteed by
Constitution of the United States.
When reviewing event permits the City of ]theca's practice, policy, procedure, and/or promulgated rules
is not to simply accept or reject applications. With other applications, the city staff works with the
applicant and helps the applicant adjust their event so that it does not overly conflict with the needs of
other citizens. This is especially the case with a special events team project. While the events teams
have helped an applicant modify their events, we are not aware of a single instance where a permit was
denied Instead, City staff offers alternatives to problematic aspects of the event. It is unprecedented for
the City of Ithaca to simply deny an application before trying to work with the applicant.
Specific responses to the specific points in the denial letter:
The City of Ithaca denial letter states that-Allowing tents to be in place for extended time
would tend to interf th the public's right to use of a substantial portion of the park, .... ".
This language is to v gue for anyone to understand what is acceptable and what is not. The
city is not stating that the intended use will interfere with the public's right to use the park, but
that'*ould tend ", in other words, "it might" stretch into such a situation. The city needs to
judge the application on what the applicant intends on doing, not on what if might become. If
the city has concerns on a direction the event might mite it should stipulate in the permit that
such a direction is impermissible.
Further, the term "substantial" is not defined. How much of the park could the encampment
occupy before it became "substantial?" This answer has to be based on some policy, law or Wile,
not the arbitrary opinion of the Superintendent of Public Works and/or the City Attorney.
Nor, given the fact that the public is openly invited to be a part of all aspects of Occupy Ithaca's
event, does the city specify what specific use the park the public is not being allowed to use.
The deed of the Dewitt Park to the City of Ithaca requires that the park be open as "a public
walk and promenade." At all times the walkways are clear for public use, so the main use of the
park is not in any way impeded. Since the main use of Dewitt park remains unchanged, it is
unclear the public's use of the park has been "substantially" altered
2. The City of Ithaca denial letter states that " Keeping tents in place and heavy use thus
engendered is damaging the lawn." Anyone who is familiar with the area in question is well
aware that there is virtually no grass in the area where the tents are; which is why the applicant
chose that spot for the tents in the fast place. Further, the city could simply require that the tents
be moved every few days to allow whatever grass is actually growing access to sunlight. These cy
issues are typically dealt with by modifying the permit application, not for denying a permit. aC
3. The City of Ithaca denial letter argues in point #1 that the public is being deprived us use of the
park by this activity and in point #2 that the park is not capable of handing the number of
people that the Occupy Ithaca event would bring to the park in point #2. The City of Ithaca
needs to decide whether its decision to deny is based on too much use of the park or not enough.
4. The City of Ithaca denial letter states that "Park use is not allowed between 10 pm and 5 am
(without a special waver)." The applicant is well aware of this rule, and specifically asked for
such a waver in the permit application: "We request to exercise our fast amendment rights after
10 pm - waiver of park curfew". The city has granted such a waver in the past to Ithaca Festival,
allowing both tents and Ithaca Festival personnel in the park throughout the night. The City of
Ithaca simply reiterated the rule, including a statement that wavers are granted to the rule,
without giving any specific reasons why it was not granting Occupy Ithaca a waver. The City of
Ithaca denial letter does not indicate that the City of Ithaca's Superintendent of Public Works
even considered the waiver request at all.
5. The City of Ithaca denial letter asserts that "Chapter 336 requires any pemmittee to provide proof
of liability insurance". Actually, the code states:
"fU General liability insurance shall be required in an amount to be determined
by the issuing agent for activities that include any of the following:
(a) A risk that participants or attendees could be injured based on the
nature of the activity.
I,�]b Sale or consumption of alcoholic beverages.
,(c). Potential damage to City property"
The city failed to show that any of these points apply to the applicant. It cannot assert the need
for insurance without showing that the event will fall into one of the three above categories and
specifying what insurance is necessary to indemnify the city.
6. The City of Ithaca denial letter asserts that "Camping is not a permitted use in the city, per
zoning ordinance." The city failed to cite specifically in city code where camping is prohibited
in the city. "Tents" are not specifically mentioned anywhere in the zoning law. The only
reference to "camping" is to "camping trailers," a use the applicant has not asked for. It is not a
prohibited use under chapter "336 Use of parks; permit application; general liability insurance,"
making it unclear where this "park specific, no camping" rile comes from or if it actually exist
at all. Further, the city knowingly allows camping within the city. City officials are well aware
that there is an ongoing campground behind Wegmans, commonly known as `the jungle".
Additionally, City officials are aware that twice a year people set up tents on city sidewalks on
Esty Street to be in line for for the Friends of the Library Sale. Not only has the city failed to
cite a specific prohibition it also fails to explain why it is selectively enforcing the `prohibition"
on camping to Occupy Ithaca and not these other groups.
7. The City of Ithaca denial letter asserts that "Residential facilitates are not a permitted use in
parks." First, it is unclear where this prohibition is, as Chapter 336 is silent about residential
facilities. Second, the application did not request residential facilities.
8. The City of Ithaca denial letter states that "Residential use requires appropriate sanitary
facilities." All events that have large numbers of people over extended time periods require
sanitary facilities. No other group's permit application has been denied as a result of this need.
The City of Ithaca has made no effort, as it has with other applicants, to determine what
faculties are necessary. Currently, nearby residents have opened their buildings so people can
use their bathrooms. Occupy Ithaca is interested in establishing a location for a port-a -potty and
is willing to work with the city on a suitable location. Questions such as this one is why the city
assembles and event team, to gather the knowledge of different departments to figure out the
best solutions to such problems.
9. The City of Ithaca denial letter states that "Large tents require building or fire department
approval." Again, this is not a reason to tam down this application. When other applications are
deemed to need multiple permits, a special team is established to deal with all the permits
together ts other
applications-
10. The City of Ithaca denial letter states that "Allowing the requested'occupation,' especially for
an extended period of time, is not consistent with maintaining the park as primarily's
contemplative space in keeping with [the park's] function as a veterans' memorial and a
common space for several churches.' and as a'quiet use park. "' The city has no established
criteria to determine if an event is consistent with maintaining the park as primarily's
contemplative space. The city inconsistently applies this standard from one group to the next.
Thus, Ithaca Festival is allowed to set up a stage with a sound system and the city determined
that it was consistent with a "quiet use park". Yet when Occupy Ithaca requests a permit for an
event with no sound system, it is told that it is inconsistent.
11. The City of Ithaca denial letter asserts that "City has not allowed individuals or groups to be in
the Park during closed hours." This statement is simply false. The City has allowed Ithaca
Festival access to the park 24 hours a day when it is holding an event in the park.
12. The City of Ithaca denial letter states that "City has not allowed tents to be maintained in the
Park, and has only allowed canopies for more than two or three days (and only as part of a
participatory festival)." Again, the city has no criteria for what is acceptable use or not. The two
or three day limit.only appeared when Occupy Ithaca made its application. The city cannot
create a rule just because it does not like an application (Assuming this rule actually exists at
all, see #6 above).
13. The City of Ithaca denial letter states that "Parkland continuously'occupied by a certain group
(or physical structures), for non - recreational purposes and for weeks, prevents or interferes with
its use by the public at large." The city's statement here implies that if the application were for
recreations purposes, it would be ok. The city is implicitly stating that the fact that the applicant
wants to exercise their first amendment rights to free speech is a reason for the denial, if they
were only asking for a permit to recreate, their application would be fine.
Further, other cities in New York have had no such problems issuing permits to similar
occupation groups. Both the City of Rochester and the City of Buffalo have permits for Occupy
groups to use parkland within their boundaries for long term occupation. Both permits have
specific language that requires the group to keep space open for the public at large. The Buffalo
permit further requires the Occupy group to vacate the park when another groups wants to hold
a larger event in the park City of Ithaca officials are well aware of these other agreements.
14. The City of Ithaca denial letter states that "I am told that there have been repeated instances of
loud drumming at the encampment indicating an inability on the part of the applicant to comply
with the'quiet use' expectation." There was one incident of drumming in the middle of the
afternoon. When the applicant was told this was a problem, the drumming ceased, and has not
been repeated. Again, the permit could have specifically stated that drumming is not allowed, if
such activity was of concern to the City of Ithaca officals.
15. The City of Ithaca denial letter states that "I note for the record that neither permit application
was submitted in advance of your group's commencement of use of the park (for tents, etc),
which is a requirement." We note for the record, that this was understood by the City of Ithaca
when the Mayor specifically asked the group to fill out an application. To add this as a grounds
for denial indicates that the City of Ithaca officials did not process this application in good faith.
We Herby ask the Board of Public Works to overtum William I. Gray's denial of our application. We
further ask that the Board to direct the City of Ithaca to treat Occupy Ithaca as it does other applicants,
and convene a Special Events Task Force to work with the Occupy Ithaca organization to create an
event that conveys Occupy Ithaca's message to the public it wishes to reach.
Phillip Price (Occupy Ithaca)
oFTr+fe� CITY OF ITHACA
Item 9.1
`•, �¢� 108 East Green Street Ithaca, New York 14850 -5690
i
Sj,'• ®� DEPARTMENT OF PUBLIC WORKS
O \�
William J.Gray, P.E. Superintendent / City Engineer
Telephone: 607/2746527 Fax: 607/274 -6587
DENIAL OF PERMIT FOR USE (as requested) OF DEWITT PARK BY "OCCUPY ITHACA"
c/o Phillip Price, 308 S. Corn St., Ithaca, NY 14850
By the authority vested in the undersigned, as Superintendent of Public Works for the City of Ithaca,
New York, by Chapter 336 of the City of Ithaca Municipal Code, the applications for a permit for certain
uses of DeWitt Park, as submitted by "Occupy Ithaca" under the sponsorship of the General Assembly of
Ithaca, NY, initially on November 23, 2011, and then in a revised form on December 5, 2011, are hereby
DENIED, for the reasons set forth below.
REQUEST: As I understand it, the applicant seeks permission to maintain an encampment that has been
established (without a permit) in DeWitt Park, which includes a variable number of tents (currently
approximately 10), tables, signs, banners, and other "support" facilities, and which is anticipated to be used by
between one and 49 participants. "Waiver of park curfew" (10 pm to 5 am) is sought. No limitation on number,
size, type or location of tents is specified. Request is for permit to run until December 19, 2011, initially, than to
renew automatically thereafter, for two-week increments, "in the absence of a demonstrated code violation."
In considering these applications, I reviewed:
- Deed (with restrictions) from Simeon DeWitt to First Presbyterian Church (1826)
- Agreement between Presbyterian Church and then- Village of Ithaca (1856)
- Chapter 336 ( "Parks ") of City of Ithaca Municipal Code
- Board of Public Works Policy on Use of DeWitt Park (1992)
- Initial permit application from Occupy Ithaca
- Revised permit application from Occupy Ithaca
- City Attorney's Legal Opinion on Occupy Ithaca's requested use of Park (2011)
I consulted with:
- First Presbyterian Church
- City Attorney
- Mayor Carolyn K. Peterson
- Common Council
I have also drawn upon my 25 -year experience as a management -level employee of the City's Department of
Public Works, including 20 years as Superintendent, during which time I have handled scores of requests for use
of City parks and other public property, and have been privy to numerous policy discussions on this topic.
My conclusions are as follows:
- Issuance of the permit as requested:
- would be inconsistent with terms of City/Church agreement
- Allowing tents to be in place for extended time would tend to interfere with the
public's right to use of a substantial portion of the Park, which interference City
has a duty under the agreement to "restrain by Law"
- Keeping tents in place and the heavy use thus engendered is damaging the lawn
(which is inconsistent with City's duty to keep Park in "good and respectable
condition '.... " at all times ")
- would be inconsistent with the provisions of Chapter 336
- Park use is not allowed between 10 pm and 5 am (without a special waiver).
- Chapter 336 requires any permittee to provide proof of liability insurance
'An Equal Opportunity Employer with 2 commitment to worVome diversification." 0
Page 2
- would appear to allow activities that are actually subject to other regulations
- Camping is not a permitted use in the City, per the zoning ordinance
- Residential facilities are not a permitted use in parks
- Residential use requires appropriate sanitary facilities
- large tents require Building or Fire Department approval
- would be inconsistent with Board of Public Works/City policy on use of DeWitt Park
- Allowing the requested `occupation," especially for an extended period of
time, is not consistent with maintaining the Park as primarily "a contemplative
space in keeping with [the Park's] function as a veterans' memorial and a
common space for several churches" and as a "quiet use park."
- would be inconsistent with City's past practice, and would represent "special" and
unequal treatment of this applicant in comparison to others
- City has not allowed individuals or groups to be in Park during closed hours
- City has not allowed tents to be maintained in the Park, and has only allowed canopies
for more than two or three days (and only as part of a participatory festival)
- would violate New York State's "public trust doctrine."
- Parkland continuously "occupied" by a certain group (or physical structures), for non -
recreational purposes and for weeks, prevents or interferes with its use by
the public at large
In contrast to most other parks, City considers DeWitt Park to be a "quiet use park."
I am told that there have been repeated instances of loud drumming at the encampment,
indicating an inability on the part of the applicant to comply with the "quiet use" expectation.
I note for the record that neither permit application was submitted in advance of your group's
commencement of use of the Park (for tents, etc), which is a requirement of Chapter 336.
This denial does not prevent members of Occupy Ithaca (or others) from exercising their right of free speech at a
time and in a place and manner that is consistent with the above - referenced conditions and other local
regulations. Individuals and smaller -size assemblies (fewer than 50) that do not interfere with other public
rights or safety (such as the right to pass freely along a sidewalk, without harassment, or to use any part of a
park, or to be free from unreasonable noise) do not need a permit to express their viewpoints, lawfully, while on
City land that is normally open to public use. Permits are freely granted for most short-term uses of public
spaces, which can involve very temporary physical emplacements (such as tables for literature or open -sided
tent shelters for day use), or even temporary street closures (for marches or demonstrations or block parties).
Other parks in the City, and other public spaces, are generally not subject to the stricter "quiet use" limitations
applied to DeWitt Park, with its unique history.
RIGHT OF APPEAL: If you wish to appeal my denial of your application, you may do so, to the City's Board
of Public Works. The Board's next meeting is Wednesday, December 14", starting at 4:45 pm (in Common
Council chambers, 3itl floor of City Hall, 108 E. Green Street). If in writing, your appeal should be submitted to
my office (2 "" floor of City Hall) before that meeting. Or, your appeal can be presented orally at the meeting. In
either case, you will be offered the opportunity to make a statement and answer questions at the meeting.
Please be advised that your current use of the Park (e.g., involving tents and other structures, and occupancy
during closed hours), without a valid permil, is in violation of Chapter 336 and other City laws. You are
again directed to cease that use, immediately. Tents and other items that are part of this encampment are
subject to seizure, removal and disposal, and any persons in the Park during closed hours are subject to the
penalties setforth in Chapter 336 or any other applicable statute.
U)0 �I>>
William I. Gray, P.E. Date
Superintendent of Public Works, City of Ithaca
�oF1r. CITY OF ITHACA
108 East Green Street Ithaca, New York 14850 -5690
OFFICE OF THE CITY ATTORNEY
it Daniel L. Hoffman, City Attorney Telephone: 607/274 -6504
Khandikile M Sokoni, Assistant City Attorney Fax: 607/274 -6507
ABED Robert A. Samchan, Assistant City Attorney
Patricia M. O'Rourke, Assistant City Attorney
Krin Flaherty, Associate City Attorney
Jody Andrew, Executive Assistant
M E M O R A N D U M
To: Common Council
From: Daniel L. Hoffman, City Attorney, and Krin Flaherty, Associate City Attorney
Date: December 7, 2011
Subject: "Occupy Ithaca" Activities in DeWitt Park
The trustees of Ithaca's First Presbyterian Church, by agreement dated 1856, entrusted the
City of Ithaca with full care, charge, control, and government of DeWitt Park. The agreement
provides that the park's primary uses are to be as spelled out by Simeon DeWitt when he donated
the space to the church, in 1826, namely, as "a public walk and promenade." The agreement
stipulates that "no houses or other buildings except ornamental improvements [may] be erected
therein." See Sept 25, 1826 Deed, Book K of Deeds, Page 184.
Past and current City administrations have interpreted this deed language to mean that the
park should be maintained as a "contemplative space" allowing low impact uses consistent with
its function as a veterans' memorial and common space for the churches surrounding the park.
See 12/23/92 DeWitt Park Usage Policy Resolution, from Board of Public Works. The
Superintendent of Public Works has issued permits for park use on a limited basis, in deference
to the deed restrictions limiting obstruction of pedestrian traffic or use, noise, damages to
plantings and the lawn. See 10/18/83 Memorandum from Supt Donald Kinsella to Mayor Shaw
re: Use of DeWitt Park.
It is our opinion that DeWitt Park, though privately owned, must be considered to be
"public parkland" for the duration of the agreement, and is therefore subject to New York State's
public trust doctrine. Whether land is parkland is determined by deed, legislative enactment, or
by implication - as demonstrated through continuous use of the land as a public park. See Matter
ofAngiolillo v. Town of Greenburgh, 290 A.D.2d 1, 10-11 (2d Dept. 2001), Iv. denied 98 N.Y.2d
602, 744 (2002); Matter ofLazore v. Board of Trustees of Vil. of Massena, 191 A.D.2d 764, 765
(3d Dept 1993). An implied dedication of land as parkland exists when the City has shown
through ads and declarations a present, fixed, and unequivocal intent to maintain land as park
land. New York State Assemblyman v. City of New York, 85 A.D.3d 429, 431 (1" Dept 2011)
leave to appeal denied, 17 N.Y.3d 715 (2011) quoting Riverview Partners v. City of Peekskill,
273 A.D.2d 455, 455, 710 N.Y.S.2d 601 (2d Dept 2000).
An Equal Opportunity Employer with a commitment to workforce diversification."
In the DeWitt Park agreement, then: is an express provision that the City maintain the
park for the public and its purposes as a public walk and promenade, and not allow "trespass" or
interference with public use. Further, the City has maintained, improved, and operated DeWitt
Park as a public park. The City acquired the property to maintain the park -like nature of the land,
and continues to use it for park related activities. See Gewirtz v. City o f Long Beach, 69 Misc.2d
763, 770 (Nassau County 1972, g6rd 45 A.D.2d 841 (2d Dept. 1974), Iv. denied, 35 N.Y.2d 644
(1974); Village o (Croton on Hudson v. County of Westchester, 38 A.D.2d 979, 980 (2d Dept
1972); and Pearlman v. Anderson, 62 Misc.2d 24, 26 (Nassau County 1970) aO'd, 35 A.D.2d
544 (2d Dept 1970). The City does not use Dewitt Park for non -park or recreational purposes, for
example, storage and snow dumping as was the case in Lazore, 191 Ad.2d at 767. Thus, by the
restrictions on use in the deed to the church and the agreement with the City, as well as the City's
long history of maintenance of DeWitt Park as public parkland, we believe that a court would
find that DeWitt Park is parkland subject to the public trust doctrine.
Under that well - established doctrine, all public parkland in New York State must be
maintained for the recreational benefit of the general public. Public parks may not be diverted for
non -park uses or alienated from the public without a special act of the state legislature. The
public trust doctrine is long standing and relatively rigid as to what are permissible park uses.
The seminal case regarding the public trust doctrine states that permissible uses of park land are
the "common incidents of a pleasure ground [that] contribute to the use and enjoyment of the
park," "facilitate free public means of pleasure, recreation, and amusement" and "to provide
means of innocent recreation and refreshment for the weary mind and body." Williams v.
Gallatin, 229 N.Y. 248, 254 (N.Y. 1920). The court also notes that the "environment must be
suitable and sightly or the pleasure is abated." Id. Any use of a public park which impedes the
recreational use of a park impermissibly alienates the public. Id.
The Occupy Ithaca encampment is not a recreational use of the park, and appears to
physically affect 20 -25% of the park area (to date). Both the use and size serve to impermissibly
alienate the public from recreational use of a significant portion of the park. Allowing the
encampment puts the City in violation of the public trust doctrine as well as the terms of the
agreement to maintain DeWitt Park as a pedestrian and contemplative space. In our meeting this
week with Occupy Ithaca representatives, an individual suggested that the City "already allows"
camping on public lands. To the extent that this was intended to refer to the Jungle
encampments, a very significant difference is that those camps are not on public parkland (and
parts are not on City-owned land), and thus do not raise concerns under a public trust doctrine
analysis. Unlike the Occupy situation, the Jungle does not pose the risk of public alienation from
use of parkland for recreational purposes.
The representatives from Occupy Ithaca also expressed belief that their First Amendment
rights to freely assemble and speak would prevail over public trust doctrine considerations. We
disagree, especially with regard to the "encampment" or "occupation" aspect of their efforts. It is
"An Equal Opportunity Employer with a commitment to workforce diversification."
well established that a municipality has the right to establish content - neutral rules narrowly
tailored to serve a significant public interest. Make the Rd. by Walking, Inc. v. Turner, 378 Fad
133, 142 (2d Cir. 2004). These rules may proscribe the tire, place, and manner of speech in public
forums and must 'leave[ ] open ample alternative channels of communications." Travis v. Owego -
Apalachin School District, 927 F.2d 688, 692 (2d Cir 1991) quoting Perry Educ. Assn v. Perry
Local Educators' Assn, 460 U.S. 37, 45-46, (1983). Here, the City has not imposed Hiles as to
content The City has historically not permitted use of DeWitt Park after 10 pm, by individuals or
groups. Camping is not a permitted use anywhere in the City, and certainly not on parkland. These
rules are narrowly tailored to serve the significant interest of the City in maintaining the park as
required by the 1856 agreement and under the public trust doctrine. If the City chooses to deny the
Occupy Ithaca request to use the park after hours and to maintain tents and other facilities there, on
an ongoing basis, protesters would still have the right, within this or other parks, m on other public
land in the City (at any time), to express political opinions freely. Any denial of any portion of
Occupy Ithaca's permit application should be supported by the City's significant interest in
requiring compliance with the public trust doctrine and its own rules.
,Another legal concern is the precedent that is being set by not enforcing the City's rules
(regarding the use of parks) for this particular group. Aside from the issue of fairness, if the City
continues to allow this, it will be hard- pressed to treat others (including those that may have causes
far less palatable to City administrations) differently in the future. We know that the Presbyterian
Church is also very concerned about this issue.
In conclusion, it is our opinion that DeWitt Park is parkland, and that allowing the Occupy
Ithaca event to continue in its current form, or without significant limitations, would violate the
City's obligation under the agreement with the church and under the public trust doctrine, and raise
other troublesome legal issues. According to current case law, imposing content - neutral restrictions
on the time, place and manner of free speech is not violative of the Occupy Ithaca members' First
Amendment rights, so long as such restrictions are narrowly tailored to serve the City's significant
interest (e.g., in keeping the park open to all) and other channels for free speech remain open (e.g.,
protestors could express their views throughout the night on any public sidewalk or at other non-
park venues).
An Equal Opportunity Employer with a wmmihnent to workforce diversification.
(Partial) List of regulations pertaining to the Occupy Ithaca encampment:
• Camping is not a permitted land use within the City of Ithaca. Any residential quarter
requires a permit from the Building Department.
• City parks open at 5 am and close at 10 pm unless a permit has been issued otherwise by
the Superintendent of Public Works. Code §336 -8.
• A permit is required under §336 -1, prior to such use, and most include the following:
• insurance or a security deposit;
• number of participants;
• whether the activity is scheduled to occur regardless of weather conditions;
• whether the activity would interfere with the enjoyment of the park by others;
• whether the activity would have an impact on the surrounding area;
• whether available utilities are suitable for the needs of the event;
• whether there would be a potential of damage to City property due to the
anticipated use of the park; and
• whether the intended use of the park is appropriate for the size and location of the
space.
• The City parks have a carry in- carry -out trash policy. §336 -7 We do not have information
that the encampment is in violation of this policy; however, we ask that provisions for
trash removal or disposal be explained and that the City's policy be respected.
• There can be no fires within the park. The City would like clarification as to the type of
heat generating devices being used or proposed to be used. No gasoline, propane, or
kerosene heaters, stoves, or grills will be allowed.
• The City cannot accommodate previous Occupy Ithaca requests for a parking waiver or
portable toilet facilities.
• Smoking is not permitted in DeWitt Park.
"An Equal Opportunity Employer with a commitment to worldome diversification."