Loading...
HomeMy WebLinkAbout05-22-13 City Administration Committee Meeting AgendaCA Meeting City Administration Committee DATE: May 22, 2013 TIME: 6:00 pm LOCATION: 3rd Floor, City Hall Council Chambers AGENDA ITEMS Item Voting Item? Presenter(s) Time Allotted Chair, Chris Proulx 1.Call To Order *Note: We will review the number of10 Min* 1.1 Agenda Review No cards received at the beginning of each 1.2 Review and Approval of Minutes Yes meeting and adjust time if needed. 1.3 Statements From the Public No 1.4 Statements From Employees No 1.5 Council Response No (6:10 pm) 2.Standing Sub-Committee and Staff Reports 2.1 Workforce Diversity Committee No 2.2 Others as Needed No 3.City Administration, Human Resources, and Policy 3.1 GIAC – Creation of Program Coordinator Yes Marcia Fort, GIAC 10 Min Position (6:20 pm) 4.Finance, Budget, and Appropriations 4.1 Chamberlain – Authorization to Execute Fund Yes Debra Parsons, City Chamberlain 5 Min Transfers at Tompkins Trust 4.2 DPW – Request to Establish Capital Project for Yes Erik Whitney, Asst. Supt for W&S 5 Min Construction of Sanitary Sewer Main on Seneca Way 4.3 DPW – Reallocation of Watershed Coordinator Yes Erik Whitney, Asst. Supt for W&S 5 Min 4.4 DPW – Request to Establish Capital Project for Yes Ray Benjamin, Acting Supt. DPW 10 Min Upper Cascadilla Creek Walkway 4.5 DPW – Request for Funds for Six Mile Creek Yes Ray Benjamin, Acting Supt. DPW 10 Min Scour Remediation Project 4.6 DPW – Request to Transfer Funds for Director Yes Ray Benjamin, Acting Supt. DPW 5 Min of Parking Position 4.7 Common Council - Request to Transfer Funds Yes 15 Min From Contingency for Hire of Outside Noise Consultant (7:15 pm) 5.2014 Budget Process 5.1 A Local Law to Update the Annual City Yes 60 Min Budget Process 5.2 Draft of Priorities of Council No 15 Min (8:30 pm) 6.Committee Discussion Items 7.Meeting Wrap-up 8.1 Announcements No All 5 Min 8.2 Review Agenda Items for Next Meeting No 8.3 Adjourn Yes (8:35 pm) Committee Charge: The CA committee will: (1) Review financial and administrative issues pertaining to the City, along with items relating to the City of Ithaca workforce environment, intergovernmental relations and human resource 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 Controller’s Office at 607-274-6576 at least 48 hours before the meeting. 3. City Administration, Human Resources, and Policy .1 Amendment to the Greater Ithaca Activities Center Personnel Roster WHEREAS, the Ithaca Urban Renewal Agency (IURA) has recommended awarding a grant for the Hospitality Employment Training Program (HETP) initiative, and WHEREAS, Common Council will vote on the recommendation at its June 2013 meeting, and WHEREAS, in anticipation of Common Council approval and the required time necessary to implement the initiative, it is important to recruit and hire the Program Coordinator as soon as possible, and WHEREAS, to avoid delaying the process another month, the Director of the Greater Ithaca Activities Center is requesting that Common Council approve the creation of the HETP Program Coordinator upon approving the IURA grant award, now therefore be it RESOLVED, That the Personnel Roster for the Greater Ithaca Activities Center is amended as follows: Add: One (1) Hospitality Employment Training Program (HETP) Program Coordinator Thirty-five (35) hours and be it further RESOLVED, That the position HETP Program Coordinator shall be assigned to the CSEA Administrative Unit at a salary grade 15, and be it further RESOLVED, That for the sole purpose of determining days worked reportable to New York State and Local Employees’ Retirement System, the standard workday for this position shall be established at seven (7) hours per day, thirty-five (35) hours per week, and be it further RESOLVED, The salary and benefits for the HETP Program Coordinator will be reimbursed to the City of Ithaca by the IURA. J:\DRedsicker\AGENDAS \City Admin Comm\2013\5-22 CA Agenda.doc 5/22/13 4. Finance, Budget and Appropriations .1 Authorization to Execute Fund Transfers at Tompkins Trust WHEREAS, the City of Ithaca maintains accounts at Tompkins Trust Company, and WHEREAS, from time to time the City initiates transfers from its accounts at Tompkins Trust Company in order to transact the business of the City, and WHEREAS, Tompkins Trust Company requires a Funds Transfer Agreement, defining the terms under which such transfers are made, now therefore be it RESOLVED, The Debra Parsons as City Chamberlain is authorized to execute the Funds Transfer Agreement in order to transact such transfers as necessary. J:\DRedsicker\AGENDAS \City Admin Comm\2013\5-22 CA Agenda.doc 5/22/13 TO: City Administration Committee FROM: Debra Parsons, City Chamberlain RE: Authority to enter into a Funds Transfer Agreement DATE: May 7, 2013 Tompkins Trust Company has asked us to update our Funds Transfer Agreement in order to transfer funds between accounts at the Trust Company and to wire funds to other payees. The Trust Company also requires that the execution of the agreement is authorized by the governing board. WHEREAS, the City of Ithaca maintains accounts at Tompkins Trust Company, and WHEREAS, from time to time the City initiates transfers from its accounts at Tompkins Trust Company in order to transact the business of the City, and WHEREAS, Tompkins Trust Company requires a Funds Transfer Agreement, defining the terms under which such transfers are made, now therefore be it RESOLVED, the Debra Parsons as City Chamberlain is authorized to execute the Funds Transfer Agreement in order to transact such transfers as necessary. City of Ithaca Office of the Chamberlain 108 East Green Street, Ithaca, NY 14850 Ph: 607 274-6580 Fax: 607 272-7348 CA Item #4.1 4.2 DPW – Request to Establish Capital Project for Construction of Sanitary Sewer Main on Seneca Way WHEREAS, we are not able to serve the new Seneca Way Apartments project with a sanitary sewer connection to the State Street sanitary sewer main for reasons of an elevation conflict with the water main on the near side, and WHEREAS, moving this particular water main is not cost effective, nor feasible since it is the sole supply line for water to all of Down Town Ithaca, and moving the line would entail extended service interruption, and WHEREAS, we are obligated to serve the new Seneca Way Apartments with sanitary sewer service, and WHEREAS, there is no existing sanitary sewer main on Seneca Way, and WHEREAS, a new sanitary sewer main on Seneca Way will serve several other properties bounding Seneca Way, and WHEREAS, a permit for the work from New York State Department of Transportation has been obtained, and WHEREAS, City DPW Water & Sewer Division staff have completed engineering plans and estimated the cost of the materials for replacement to be $56,000.00, and WHEREAS, the developer of the Seneca Way Apartments has agreed to pay for a sanitary sewer service connection at an amount not to exceed $12,000.00, and WHEREAS, City DPW labor and equipment costs are already budgeted for in the 2013 operations budget, and WHEREAS, a permit for the work from New York State Department of Transportation has been obtained, and WHEREAS, City DPW Water & Sewer Division staff estimates one augmented crew could complete this work in 3-4 weeks or less, and WHEREAS, it is necessary to start construction early in June of 2013 to fit with our planned construction schedule, now therefore, be it RESOLVED, That Common Council hereby establishes Capital Project # 626 in an amount of $45,500.00, including all necessary bonding costs, to facilitate the construction of a new sanitary sewer main on Seneca Way, and be it further RESOLVED, That funds necessary for said Sanitary Sewer main project shall be derived from the issuance of serial bonds. J:\DRedsicker\AGENDAS \City Admin Comm\2013\5-22 CA Agenda.doc 5/22/13 DEPARTMENT OF PUBLIC WORKS WATER AND SEWER DIVISION 510 FIRST STREET ITHACA, NY 14850 C ITY O F I THA C A , N . .Y IN CORPORA T E D 1888 SENECA WAY PROPOSED SANITARY SEWER STA 3+63 MH#3 3+00 STA 2+32 MH#2 2+00 MH#1 STA 1+071+00 STA 0+00 SENECA ST S E N E C A W A Y ( N Y 7 9 ) RO A D C L CA I t e m # 4 . 2 408 411 414 417 420 SCALE VERTICAL: 1" = 3' HORIZONTAL: 1" = 30' DEPARTMENT OF PUBLIC WORKS WATER AND SEWER DIVISION 510 FIRST STREET ITHACA, NY 14850 C ITY O F I T HA CA , N . .Y INCORPORA T E D 1888 SENECA WAY PROPOSED SEWER PROFILE 8" SDR 35 PVC SANITARY SEWER @ 0 . 4 % ( T Y P ) APPROXIMATE LOCATION 20" DIP WATER PROPOSED 6" PVC SANITARY SEWER SERVICE EXISTING G R A D E EXIST MH STA 0+00 RIM 417.4 INV 409.9 MH#1 STA 1+07 RIM 419.0 INV 410.4 MH#2 STA 2+32 RIM 419.9 INV 411.0 MH#3 STA 3+67 RIM 419.5 INV 411.6 0+00 0+50 1+00 1+50 2+00 2+50 3+00 3+50 APPROXIMATE LOCATION ELECTRIC DUCTBANK CA I t e m #4 . 2 4.3 DPW - Reallocation of Watershed Coordinator WHEREAS, Common Council authorized the creation of a Laboratory Technician position at the Water Treatment Plant in July 2012, and WHEREAS, when the Laboratory Technician position was filled in October 2012, the Chief Water Treatment Plant Operator assigned supervisory responsibility for the position to the Watershed Coordinator, and WHEREAS, the Watershed Coordinator requested a reevaluation of her position based on this new supervisory responsibility, and WHEREAS, the Human Resources Department reviewed the point factor evaluation of the Watershed Coordinator position and determined that the assignment of supervisory responsibilities to the position would result in an increased point factor rating for supervisory responsibilities, and WHEREAS, this increased point factor rating for the Watershed Coordinator position results in the reallocation of the position to a higher salary grade, and WHEREAS, the total 2013 salary cost for said position reallocation will be $2,267, and WHEREAS, Common Council supports the assignment of the supervisory responsibility for the Laboratory Technician to the Watershed Coordinator, and therefore supports the reallocation of the Watershed Coordinator position, now, therefore, be it RESOLVED, That the position of Watershed Coordinator be reallocated from Grade 16 to Grade 17 of the CSEA Administrative Unit Compensation Plan, and be it further RESOLVED, That funding in the amount of $2,267 to cover this annual salary increase retroactive to January 14, 2013 shall be derived from Account F8330-5435 Water Plant Contracts, and transferred to Account F8330-5110 Water Plant Staff Salaries. J:\DRedsicker\AGENDAS \City Admin Comm\2013\5-22 CA Agenda.doc 5/22/13 Erik Whitney - Re: Job Title re-allocation Page 1 From: Valerie Saul To:Baker, Chuck; Johnston, Roxy; Michell-Nunn, Schelley; Whitney, Erik CC:Benjamin, Ray; Thayer, Steven; Thomas, Mike Date: 4/2/2013 12:18 PM Subject: Re: Job Title re-allocation Attachments:Reallocation of Position - Watershed C oordinator.doc Hi all, I did the point factor review and assuming that Erik, Chuck, Ray and Common Council are all in agreement with the requested reallocation of the position, the point factor rating would support it. I have attached a resolution that Chuck and/or Erik can move forward to the City Administration Committee if they support the reallocation. Chuck or Erik will need to fill in the last clause that indicates from which account the funding for the salary increase will be derived. The reallocation is based on the premise that Roxy is the formal supervisor of the Laboratory Technician and that the increased funding for this assignment is supported by all parties. If Chuck, Erik, Ray and/or Common Council do not support this concept, any of those individuals can direct the reassignment of the supervisory responsibility to either Brendan or Chuck, in which case the reallocation request would be denied. If approved, the reallocation would be retroactive to January 14, 2013 at the maximum Grade 17 salary of $64,095. The annualized cost for 2013 would be $2,266.24. Please let me know if you have any questions or would like additional assistance from HR. Thanks, Val >>> Roxy Johnston 09:11 AM 4/2/2013 >>> Good Morning Schelley, I'm writing to inquire about my job title re-allocation. I've reattached the original request here for your convenience. The 90 day response time is fast approaching. Sincerely, Roxy Roxanna Johnston Watershed Coordinator, Lab Director City of Ithaca Water Treatment Plant 202 Water St., Ithaca, NY 14850 Phone 607-273-4680, FAX 607-277-5028 CA Item #4.3 4.4 DPW - Request to Establish Capital Project for Upper Cascadilla Creek Walkway WHEREAS, the Board of Public Works (BPW) at its April 8, 2013 meeting reviewed the staff recommendations contained in the memorandum on “Repair to Cascadilla Creek walkway – four scope options” dated April 2, 2013, and discussed the matter with staff in attendance, and WHEREAS, the BPW stated their preference in pursuing “Option 2”, which essentially includes acquiring a few extra feet of width for a reconstructed sidewalk, as well as replacing the stairs and railing adjacent to the 504 Stewart Avenue, and WHEREAS, the BPW at its May 16, 2013 meeting recommended that Commons Council establish a capital project in the amount of $70,000 to fund the design, right of way acquisition, construction and inspection costs for the project, and WHEREAS, the BPW also recommended that Common Council work with neighbors and other potential stakeholders to decide whether to expand the scope of work (and therefore the budget) beyond the gorge rim walkway adjacent to 504 Stewart Avenue, e.g., to do preliminary design for the length of the walkway from Stewart Avenue to Linn Street; now, therefore be it RESOLVED, That Common Council hereby establishes Capital Project #788 in the amount of $70,000 for design, right of way acquisition, construction, and inspection costs related to said project, and be it further RESOLVED, That funds needed for said project shall be derived from the issuance of Serial Bonds. J:\DRedsicker\AGENDAS \City Admin Comm\2013\5-22 CA Agenda.doc 5/22/13 April 2, 2013 TO: Tom West, Director of Engineering Tim Logue, City Transportation Engineer FROM: Kent Johnson, Junior Transportation Engineer RE: Repair to Cascadilla Creek walkway – four scope options I have been tasked with developing a list of maintenance options for the portion of the Cascadilla Creek walkway from Stewart Ave. to the point at the west property line of 504 Stewart Ave. The four options listed below (in no particular order) include very rough, planning-level cost estimates as well as key pros and cons of each choice. Notes: (1) the estimates relate to construction costs if work is performed by City crews (2) the estimates do not include design costs or inspection costs (3) the estimates do not include any potential land acquisition or mapping costs (4) if the work is performed by contract, it is probably realistic to assume that the cost estimates will double Option 1 – Repair of existing sidewalk and staircase, and make slight improvements to the existing railing. Estimated cost: $16,000 In Option 1, the City would replace damaged concrete and would make modest improvements to the existing railing to meet current safety standards (like attaching chain link fence onto the existing railing to fill in the gaps) while striving to keep costs as low as possible. We would accept that the walkway would remain somewhat narrow (4’ wide) and that the railing will be utilitarian in appearance. Pros: 1.Lowest cost option that retains public access along this corridor. 2.Least complicated option. Cons: 1.Minimal railing repair may result in a less attractive product than in Option 2 or 3, where a completely new railing is proposed. 2.The sidewalk will continue to be narrower than is generally preferred. Assumptions: 1.114’ x 4’ sidewalk @ ~$20/sqft (about twice the City’s standard material & labor cost for placing sidewalks to account for the more difficult work location) = ~$9,100 CA Item #4.4 2.40’ x 4’ stairs/sidewalk @ ~$40/sqft (about 4x the City’s standard material & labor cost for placing sidewalks to account for the increased complexity of this portion of the work) = ~$6,400 3.About $500 in materials for chain link fence sections Total = +/- $16,000 Option 2 – Expand width of sidewalk and staircase, install new railing. Estimated cost: $30,000 In Option 2, the City would replace the 4’ wide sidewalk with a 6’ wide sidewalk. Upon the south edge of the sidewalk would be installed a new railing meeting current safety standards (so the effective width of the sidewalk would be ~5’). To widen the sidewalk, the City will need to increase the 4’-wide easement to 6’ (at this point, the assumption is that the property owner will grant the increased easement width free of charge). This widening would be southward over, or replacing, the existing concrete wall/railing base (the property owners do not want to see the sidewalk widened northward). The staircase would be rebuilt slightly wider to achieve a 5’ wide effective width as well. Pros: 1.Wider sidewalk allows for a 5’-wide clear width for pedestrians and provides a good anchor for the new railing. Cons: 1.Cost. The benefit of the improvements may not justify the cost when the City faces so many other, likely more pressing, needs. Assumptions: 1.114’ x 6’ sidewalk @ ~$20/sqft (about twice the City’s standard material & labor cost for placing sidewalks to account for the more difficult work location) = ~$13,700 2.40’ x 6’ stairs/sidewalk @ ~$40/sqft (about 4x the City’s standard material & labor cost for placing sidewalks to account for the increased complexity of this portion of the work) = ~$9,600 3.114’ Railing @ ~$50/lf = ~$5,700 Total = +/- $30,000 Option 3 – Expand width of sidewalk and install new railing. Replace staircase with ramp. Estimated cost: $45,000 In Option 3, the City would perform the work mentioned in Option 2 except that the staircase would be replaced by a ramp/retaining walls to allow the use of City sidewalk snow-clearing vehicles. Accessibility should be improved with the inclusion of the ramp, yet it will likely be steeper than ADA generally calls for, and the ramp may be more difficult to walk along when slippery than stairs (the slope may be about as steep as the sidewalks along the upper block of Buffalo St. (~15%)). Due to the more complex nature of this option, the City may opt to hire a contractor to perform part, or all, of this work, which would likely increase the overall cost substantially. CA Item #4.4 Additionally, if this level of investment is pursued, it would seem prudent to consider the entire pedestrian corridor between Stewart Ave. and University Ave. so that improvements can be made in a coordinated and comprehensive way. Pros: 1.Provides accessibility (albeit, marginal) for people using wheelchairs. 2.Easier to plow snow. Cons: 1.Fairly high cost and complexity associated with the new ramp. As mentioned in Option 2, limited funds may be better allocated to other needs. 2.The switch to a ramp instead of stairs may make walking more difficult when surfaces are slippery. Assumptions: 1.100’ x 6’ sidewalk @ ~$20/sqft (about twice the City’s standard material & labor cost for placing sidewalks to account for the more difficult work location) = ~$12,000 2.Replace stairs with 50’ x 6’ sidewalk ramp @ ~$500/lf = ~$25,000 (this estimate is quite uncertain because there are so many unknowns at this point … design of retaining wall along sidewalk? Need to raise the manhole near the base of the ramp? Impact to bridge abutment? Etc.) 3.~114’ Railing @ ~$50/lf = ~$5,700 Total = +/- $45,000 Option 4 – Abandon the walkway, prohibit public access. Estimated cost: $8,000 In Option 4, the City would remove the concrete sidewalk, abandon the 4’ public easement, and install a small retaining wall on City property where the stairway is currently located. Atop the retaining wall, fencing could be installed to further discourage public access. The City would need to retain an easement along this corridor to have access to the utilities located under the current sidewalk. Note: to reduce costs, the small retaining wall could be avoided via grading/landscaping. Pros: 1.Lowest initial cost. Lowest long-term cost. Cons: 1.Pedestrians walking up Cascadilla Park Road will need to walk through the cemetery to reach Stewart Ave., which may take longer depending upon where their destination is located. Assumptions: 1.Removal of approximately 150’ of sidewalk, minor re-grading, and seeding @ 16 hrs. labor x 4 people x $50/hr. = ~$3,200. 2.Install small retaining wall over existing staircase @ ~1.5 cy of concrete (~$750) + labor to form retaining wall (2 days of labor as shown above @ $3,200) = ~$4,000 Total = +/- $8,000 CA Item #4.4 4.5 DPW - Request for Funds for Six Mile Creek Scour Remediation Project WHEREAS, the creek wall and ramp abutting Six Mile Creek in the vicinity of South Titus Avenue and South Plain Street were damaged by storms in 2012, and WHEREAS, the Department of Public Works applied for and received approval of funding from the New York State Office of Emergency Management for repairs to the creek wall and ramp, and WHEREAS, plans and specifications for remediation of damage to the creek wall and ramp have been prepared by the City Engineer’s Office, and WHEREAS, a project for the Six Mile Creek Scour Remediation (FEMA Project No. 3807703) is eligible for funding under the New York State Office of Emergency Management Public Assistance Program that calls for the apportionment of the costs of such program to be borne at the ratio of 75% Federal share and 25% non-federal share, and WHEREAS, the City of Ithaca wishes to advance the project by making a commitment of 100% of the total costs of the FEMA approved grant application, and WHEREAS, the project has been determined to be a Type II action in accordance with the City Environmental Quality Review Ordinance and the State Environmental Quality Review Act, as per 6 NYCRR PART 617, Section 617.5© 1 and 2, and WHEREAS, the Board of Public Works recommends that the Common Council authorize a total capital project budget in the amount of $180,000, as 100% of the federal and non-federal share of the cost of work for the Six Mile Creek Scour Remediation Project, and WHEREAS, the project be undertaken with the understanding that the final costs of the project to the City of Ithaca will be no more than 25% of said portion, currently estimated at $45,000 of the $180,000 authorized for this portion of the project, in monies and in-kind services as managed by the Superintendent of Public Works and monitored by the City Controller; now therefore, be it RESOLVED, That the Common Council hereby establishes a Capital Project in the amount of $180,000, as 100% of the federal and non-federal share of the cost of work for the project, or portions thereof, and be it further RESOLVED, That the Superintendent of Public Works of the City of Ithaca be authorized to execute all necessary agreements, certifications or reimbursement requests for Federal Aid on behalf of the City of Ithaca with the New York State Office of Emergency Management – Federal Emergency Management Agency (FEMA) in connection with the advancement or approval of the project and providing for the administration of the project and the municipality’s first instance funding of project costs and permanent funding of the local share of federal aid and state aid eligible project costs and all project costs within appropriations therefore that are not so eligible, and be it further J:\DRedsicker\AGENDAS \City Admin Comm\2013\5-22 CA Agenda.doc 5/22/13 RESOLVED, That funding for said Six Mile Creek project shall be derived from the issuance of Serial Bonds with a later partial reimbursement from Federal and State funds. J:\DRedsicker\AGENDAS \City Admin Comm\2013\5-22 CA Agenda.doc 5/22/13 CA Item #4.5 CA Item #4.5 CA Item #4.5 CA Item #4.5 CA Item #4.5 4.6 DPW – Request to Transfer Funds From Contingency Account for Division of Parking Accounts WHEREAS, as part of the 2013 Authorized City of Ithaca Budget, the Restricted Contingency Account included $81,464 in funds to hire a Director of Parking position, office expenses and related fringe benefits, and WHEREAS, applications for the Director of Parking are currently being reviewed by staff with the intent to hire for the position within the next few weeks, and WHEREAS, we need to establish the accounts for the Director of Parking and the related expenses, and WHEREAS, at a later date it will be determined if we will move related parking expenses from the Police Department Budget and other Department of Public Works budget, into these new Division of Parking Accounts; now, therefore, be it RESOLVED, That Common Council hereby transfers an amount not to exceed $81,464 from Account A1990 Restricted Contingency to the following accounts for the purpose of establishing the Department of Public Works Division of Parking: A5650-5105 Administrative Salaries $52,500 A5650-5405 Telephone 1,000 A5650-5425 Office Expense 3,000 A5650-5440 Staff Development 2,000 A5650-9010 State Retirement 6,038 A5650-9030 FICA/Medicare 4,016 A5650-9040 Workers’ Compensation 1,050 A5650-9060 Health Insurance 11,679 A5650-9070 Dental 181 $81,464 J:\DRedsicker\AGENDAS \City Admin Comm\2013\5-22 CA Agenda.doc 5/22/13 4.7 Common Council - Request to Transfer Funds From Contingency for Hire of Outside Noise Consultant WHEREAS the City of Ithaca has been experiencing an increasing number of noise disputes, especially involving commercial noise and its impact to nearby residents, and WHEREAS the City of Ithaca’s noise ordinance could enjoy improved compliance and ease of enforcement if amended to include more definite--and likely numerical--standards for ascertaining “unreasonable noise”, especially as it applies to noise in commercial zones, and WHEREAS increasing density in the core of the City of Ithaca is a central component of the city’s economic development vision, and it is expected that the disputes over noise will continue to be an issue in the future, and WHEREAS the approaches to noise enforcement that are most successful are those that are “precise, not over-broad, are easily applied by the enforcement officer and are easily understood by the judicial and regulated communities”(Regulation of Amplified Sound Sources. Eric M. Zwerling. Noise-Con 2000, Newport Beach, California.), and WHEREAS, it has been determined that there is not sufficient expertise in-house to make revisions to the noise ordinance, making it necessary to hire a consultant, and WHEREAS, Eric M. Zwerling, Director of the Rutgers University Noise Technical Assistance Center and President of the Noise Consultancy, LLC, has been identified as a professional expert with extensive experience working in New York State, including writing or consulting in the amendment of codes for Ossining, Yonkers, New York City, Long Beach, and Plattekill, and WHEREAS the cost of hiring Mr. Zwerling, Noise Consultancy, LLC to assist in drafting a new noise ordinance is $8,000; now, therefore, be it RESOLVED, That Common Council hereby approves the transfer of an amount not to exceed $8,000 from account A1990 Unrestricted Contingency to account A1010-5435 Legislative Contracts for the purpose of hiring said consultant. J:\DRedsicker\AGENDAS \City Admin Comm\2013\5-22 CA Agenda.doc 5/22/13 CITY OF ITHACA 108 East Green Street, Ithaca, New York 14850-6590 COMMON COUNCIL Telephone: 607/274-6570 Fax: 607/272-7348 To: City Administration Committee From: Seph Murtagh, 2nd Ward Alderperson Date: May 13, 2013 Re: Revisions to the City’s noise ordinance We are seeing an increasing number of noise disputes in the City of Ithaca, specifically involving noise in commercial zones and the impact to nearby residents (recent examples include amplified music from bars, conversations from outdoor dining, and noise emitted from HVAC units). Our noise ordinance currently states that persons are prohibited from making “unreasonable noise” in city limits, and then lists a number of factors that should be taken into consideration when determining which noises count as “unreasonable” (the intensity of the noise, whether the noise is usual or unusual, proximity of the noise to sleeping facilities, etc.). For many situations, this list of factors is sufficient to make a judgment. However, other situations have proven more complex, leading to disputes about noise levels and claims that the city’s noise ordinance could benefit from more definite standards. A central component of the city’s economic development vision is to increase population density in the core of the city, and it is anticipated that the city will continue to struggle with noise complaints in the future, especially noise emitted from mixed-use and commercial zones. The goal of this proposal, then, is to provide residents, commercial business, and enforcement officers with improved parameters for judging and resolving noise disputes in the City of Ithaca. It’s the opinion of the City Attorney that the City of Ithaca’s noise ordinance could enjoy improved compliance and ease of enforcement if it was amended to include more definite – and likely numerical – standards. Because the city lacks resources and expertise to accomplish such a task in-house, however, it’s being recommended that the city hire an outside consultant. Please see the attached proposals sent to the Mayor and Common Council from Eric Zwerling, Director of the Rutgers University Noise Assistance Technical Center and President of the Noise Consultancy (LLC). Mr. Zwerling has extensive experience working with municipalities in New York State, both in the drafting and revising of municipal noise ordinances and in the training of enforcement officers. Hiring Mr. Zwerling for an all-inclusive visit to Ithaca and the drafting of a new ordinance will cost $8,000. (This amount includes travel expenses). Purchasing sound measuring equipment and the training of police officers would represent additional costs, but these are eligible for drug asset seizure funding available in the police department. Please see the attached resolution and supporting materials, including a memo from the City Prosecutor. Let me know if you have any questions. Feel free to email at jmurtagh@cityofithaca.org or call at 585-703-2582. CA Item 4.7 From: Robert A. Sarachan, Asst. City Attorney Date: July 17, 2006 Legal Opinion Regarding Admissibility of Decibel Evidence in New York Issue: Are readings from a decibel meter admissible at trial? Short Answer: Results of a certified decibel meter obtained by a trained person following the proper procedure to procure and with a proper foundation elicited at trial can be admitted in court. Discussion: The New York Legislature envisioned testimony regarding decibel levels when it included decibel limits in various statutes such as General Business Law §150- 4(c), Multiple Dwelling Law §84, Navigation Law §§44, 45, Parks, Recreation and Historic Preservation Law §25.17-1(e) and Vehicle and Traffic §386-1(c). Since each of the above statutes reference decibel levels it follows that evidence of decibels would be needed to enforce those statutes. Further, many local laws include reference to decibel levels. For example, the NYC Building Code has decibel specifications such as §24-203[rr] referenced in Stiglianese v. Vallone 168 Misc2d 446 (NYC Civ Ct., Bx Co., 1995) , rev’d..174 Misc2d 312 (1st Dept App. Term, 1997) rev’d 255 AD2d 167 (1st Dept. 1998) as well as the City of Long Beach (CLB) in its Code of Ordinances “Chapter 16 Noise”. The CLB Noise Ordinance is very specific and comprehensive and has been held to be constitutional in both state court ( People v. Toback 170 Misc2d 1011 (City Ct., City of Long Beach, 1996 ) and federal court (Toback v. City of Long Beach 948 FSupp 167 (EDNY 1996)). Procedure: While none of the cases specifically address the procedure to admit decibel testimony, it is instructive to look at both the training required in the CLB ordinance as well as parallel procedures to admit other scientific testimony. For admissibility of the results of scientific device tests, such as radar, laser, and breathalyzer, New York courts generally require the following foundation to admit a witness’s testimony: 1.testimony regarding the witness’s training in usage of the scientific procedure; 2.testimony regarding periodic certification of the instrument by an outside entity; 3.testimony that the daily testing of the instrument took place 4.testimony regarding the accepted scientific procedure to use the instrument; 5.testimony that the proper procedure was followed in obtaining the results at hand Regarding training to use a DM, CLB Code §16-12 states: CA Item #4.7 Persons shall be considered qualified to make noise measurements and to enforce all portions of this chapter, who have satisfactorily completed the community noise enforcement course offered by the Department of Environmental Sciences of Cook College, Rutgers, the State University, and the required recertification course every two (2) years or any other accredited course selected by the city manager. In the Long Beach, this requirement is met with a two-day initial training in the CLB with period (every two years) half-day re-certifications. Currently, the manufacturers of the DM recommend an annual re-certification of the DM, the results of which are recorded in a business record admissible at trial. To use the DM, the operator must follow the proper procedure which includes documenting the conducting and results of the daily tests of the DM. In Long Beach, a city roughly the size of Ithaca with a similar size police force, there are three DM’s, two used by the police and one for the building department. Noise Ordinance Changes in Ithaca: To implement a decibel noise limit in Ithaca, adding language that mirrors the CLB language to add to the City’s existing ordinance would be appropriate. That would result in two different noise causes of action being available in many situations- the “general” noise as it currently exists, and a decibel violation. This is very much like speeding and DWI enforcement where there are two simultaneous ways to prove the offense. In speeding, if the measuring device (radar or laser) is not persuasive or has a problem for the case at hand, a visual speed estimate alone may suffice. Similarly, in a DWI prosecution, if the blood alcohol content (BAC) test is not admissible (breath test, blood test), then evidence of “common law” intoxication alone may suffice. Anecdotal evidence from Long Beach indicates that the implementation of a decibel limit is both an effective deterrent and a powerful aid at trial (and in obtaining pre-trial guilty pleas). CA Item #4.7 THE NOISE CONSULTANCY, LLC 309 VAN NESTE ROAD FLEMINGTON, NEW JERSEY 08822 phone: (908)237-0298  fax: (908)237-0792 e-mail: noiseconsultancy@aol.com  website: www.noiseconsultancy.com SENT VIA EMAIL February 14, 2013 Mayor and Common Council City of Ithaca 108 E. Green Street Ithaca, NY 14850 RE: Acoustical Consulting Services Chapter 240 City of Ithaca Noise Ordinance Dear Mayor Myrick and Members of the Common Council: This letter is in response to a Request For Proposal from Councilman Murtagh, regarding consulting services to assist with amendments to Ithaca's Noise Ordinance. I have extensive experience in New York State, both in my capacity as the President of the Noise Consultancy, LLC, (TNC) and in my capacity as the Director of the Rutgers University Noise Technical Assistance Center. As President of TNC, I wrote or consulted in the amendment of codes for Long Beach, New York City, Ossining, Yonkers and Plattekill. I have been hired to address various enforcement and regulatory matters by the New York City Department of Environmental Protection, New York City Law Department, the New York State Office of Attorney General and the Town of Brookhaven. In my capacity at Rutgers University I have trained enforcement officers all across the state including: Long Beach, New York City, Shelter Island, Freeport, Rochester, New Rochelle, Binghamton, North Salem, Ossining, and Plattekill. Based upon my conversation with Dr. Murtagh, I will propose two approaches to offering my consulting services: as an hourly rate or as a comprehensive lump sum,. Your decision may be based upon the extent of the services you desire. HOURLY RATE: I can provide my services on an hourly basis, if you desire to perform much of the work in-house, with my assistance in reviewing that work. The rate for my services is $185/hour, and travel is invoiced at $92.50/hour. Expenses such as mileage, meals and hotels are additional. CA Item #4.7 City of Ithaca February 14, 2013 2 | Page INCLUSIVE PROPOSAL:  One day of on-site consultation, scheduled at a mutually convenient date;  Present an educational seminar on the basics of sound as it applies to noise regulation including: the various approaches to noise codes (i.e., nuisance codes v. performance codes) and the practical benefit/drawbacks to each approach, followed by an open discussion to determine the specific desires of Ithaca regarding what the jurisdictions desires to regulate or exempt from the code;  Tour the jurisdiction, specifically the problem areas;  Conduct sound level measurements of problem sources &/or conduct a demonstration of the methodology of sound level measurement for enforcement purposes;  Review whatever relevant documents are provided by the City of Ithaca;  Draft a new or amended Noise Code, as appropriate, based upon all information gathered;  Perform whatever redrafting is necessary, until the new or amended Code is adopted, or declared legislatively dead;  Prepare an "Analysis of Public Comments," if written comments are received and if a formal response is desired; and,  Remain available for consultation via phone or e-mail. The inclusive price for these services is $8,000. Expenses are additional, and would include mileage, meals and a hotel room. Additional days of consecutive on-site consultation will be invoiced at $1,250/day plus expenses. Additional days of non-consecutive on-site consultation will be invoiced at $1,750/day plus expenses. If you have any questions whatever regarding this proposal, please don't hesitate to call me. I have appended several papers I have written which will help frame our discussion. I look forward to the possibility of working with the City of Ithaca, and assisting you in your effort to deliver a better quality of life to your residents. Sincerely, Eric M. Zwerling, M.S., INCE, ASA President CA Item #4.7 ERIC M. ZWERLING, M.S., INCE, ASA Rutgers University Noise Technical Assistance Center 14 College Farm Road New Brunswick, NJ 08901 The Noise Consultancy, LLC 309 Van Neste Rd Flemington, NJ 08822 CURRENT POSITIONS 1991-Present Director - Noise Technical Assistance Center Department of Environmental Sciences Rutgers - The State University of New Jersey 1999-Present President - The Noise Consultancy, LLC Noise Consultant/ Expert Witness (Since 1992) [Expert for the Defendants, City of New York Law Department -in- Robert Turley, et al., - against- Rudolph Guiliani, et al., ] 1993-Present Noise Enforcement Expert - New Jersey Department of Environmental Protection. Contracted (as Director of the RNTAC) to provide technical expertise on noise related issues to the NJDEP and the State of New Jersey . 1998-Present Instructor - "Noise Hazards" in 'Fundamentals of Industrial Hygiene'. University of Medicine and Dentistry of New Jersey , School of Public Health, Office of Public Health Practice 1998-Present Committee Member - S12 Working Group 41, Model Community Noise Ordinances. Acoustical Society of America 2001-Present Committee Member - Technical Study Group on Community Noise Institute of Noise Control Engineering 1994-Present Instructor - "Community Noise" in 'Environment and Public Health Course," Rutgers Continuing Education Program, Cook College Office of Continuing Professional Education. 1992-2005 Adjunct Professor- Rutgers University Department of Environmental Sciences. Course: 375:336 'Community and Occupational Noise' 1998-2000 Commissioner - Franklin Township (NJ) Environmental Commission 2010-Present Board of Education – Readington Township, New Jersey PROFESSIONAL AFFILIATIONS Member - Acoustical Society of America Member – Institute of Noise Control Engineering CA Item #4.7 EDUCATION ABD Ph.D. Candidate Rutgers - the State University of New Jersey Department of Environmental Sciences Occupational Hearing Conservationist Council for Accreditation in Occupational Hearing Conservation. Graduate Certificate in Environmental Ethics - Department of Philosophy, University of Georgia . B.S., M.S. University of Georgia . JURISDICTIONAL CERTIFICATIONS Approved Noise Control Investigator New Jersey Department of Environmental Protection Pursuant to N.J.A.C. 7:29 -2.11(a)3 Approved Noise Consultant New York City Department of Environmental Protection Pursuant to N.Y.C.A.C. Section 24-231 AWARDS 1997 Advisor of the Year Award Rutgers College Student Activities Advisory Council Faculty Advisor - Students for Environmental Awareness PUBLICATIONS Zwerling, E.M, A. Myers, C. Shamoon. 2012. In Press. Analysis of the "Plainly Audible" Standard for Noise Ordinances. Proceedings of Inter- Noise 2012. Institute of Noise Control Engineering. Zwerling, E.M., C. Shamoon. 2010. Proactive Regulation Engenders Creative Innovation - Quieting the Jackhammer. Proceedings of Noise-Con 2010. Institute of Noise Control Engineering. Szulecki, S., E. Zwerling, C. Anderson, B. Turpin. 2010. Modeling with CadnaA to estimate the probability of awakening associated with train horns. Proceedings of Noise-Con 2010. Institute of Noise Control Engineering. Zwerling, E.M., C. Anderson, S. Szulecki, F. Maimone, B. Turpin. 2009. Study of Train Noise in Teaneck, NJ. USEPA Agreement Number: X-83245701-0 Zwerling, E.M. 2005. Regulatory Scheme For Noise Enforcement In New Jersey . Invited paper. Journal of the Acoustical Society of America.V.118, No. 3, Pt 2 of 2, Sept. 2005, p. 1849. CA Item #4.7 Zwerling, E.M. 2004. Training as a Critical Component of Successful Noise Enforcement Programs. Invited paper. Journal of the Acoustical Society of America.V.115, No. 5, Pt 2 of 2, May 2004, p. 2568. Zwerling, E.M. 2004. Noise Enforcement in Cities. Invited paper. Journal of the Acoustical Society of America.V.115, No. 5, Pt 2 of 2, May 2004, p. 2593. Zwerling, E.M. 2002. Characteristics of Successful Local Noise Enforcement Programs. Invited paper. Journal of the Acoustical Society of America.V.112, No. 5, Pt 2 of 2, Nov. 2002, p.2375. Zwerling, E.M. 2002. Boom Car and Boom Box Code Drafting. The Quiet Zone. Spring 2002. Zwerling, E.M. 2002. Hearing Protection. In Encyclopedia of Public Health, ed. Lester Breslow. Macmillan Reference USA . Zwerling, E.M. 2001. Vehicle Enforcement. Rutgers Noise Technical Assistance Center. Developed for North Salem , NY Zwerling, E.M. 2000. Regulation of Amplified Sound Sources. Proceedings of Noise-Con 2000. Acoustical Society of America / Institute of Noise Control Engineering. Newport Beach , CA. December 3-5, 2000 . Zwerling, E.M. 2000. State of Michigan Model Noise Ordinance. Proceedings of Michigan Municipal League Annual Convention/ Michigan Association of Municipal Attorneys Annual Meeting. September 28-30, 2000 , Macinac Island , MI . Zwerling, E. M. Contributing Editor. 1991-Present. Community Noise Enforcement. Rutgers Noise Technical Assistance Center . Zwerling, E. M. Contributing Editor. 1998. Vehicle Sound Reproduction Enforcement. Rutgers Noise Technical Assistance Center . Developed for the City of Rochester , New York Zwerling, E.M. 1997. Community Noise Enforcement: A Mature Technology. Hearing Rehabilitation Quarterly. 22:4, 4-8+. Zwerling, E.M., D. Pinto, P. Hanna, J. Lepis, B. Turpin. 1997. Local Noise Enforcement Options and Model Noise Ordinance With Pre-Approved Language for the State of New Jersey . Rutgers Cooperative Extension Publication #E215. Zwerling, E.M. 1997. Community Noise Infosheet. Environmental and Occupational Health Sciences Institute. Public Education and Risk Communication Division. Zwerling, E.M. 1996. Turning Down the Volume: Effective Strategies for Community Noise Enforcement. The Police Chief. V. 63, Dec. 53-59. CA Item #4.7 Zwerling, E. M. & B. J. Turpin. 1996. Community Noise Enforcement: Reviving a Moribund Program or Developing One Anew. Proceedings of Noise-Con 96, The 1996 National Conference on Noise Control Engineering. 955-960. Zwerling, E.M. 1996. Community Noise Pollution Certification and Assistance. Home page for Rutgers Noise Technical Assistance Center. http://www.envsci.rutgers.edu/org/rntac/ RESEARCH PROJECTS (at Rutgers University, as P.I. or Co-P.I.) "Assistance Regarding Noise Standards for Wind Turbines on Farms," Granting Agency: New Jersey State Agricultural Development Commission (SADC), 2011 - 2012. "Assistance Regarding Noise Standards for Photovoltaic Installations on Farms," for New Jersey State Agricultural Development Commission (SADC), 2010. "Railroad Noise in Teaneck, New Jersey" Granting Agency: United States Environmental Protection Agency, 2005 - 2009. "Road Noise Educational Outreach Program," Granting Agency: New Jersey Department of Transportation, 2002. CONFERENCE PRESENTATIONS Proactive Regulation Engenders Creative Innovation - Quieting the Jackhammer. Invited Paper. Proceedings of Noise-Con 2010. Institute of Noise Control Engineering. Baltimore, MD, April 20, 2010. Environmental Health and Noise: Issues and Answers. Invited Presentation. New Jersey Environmental Health Association Annual Public Health Conference. Atlantic City , NJ March 3, 2008. Noise Primer For Legal Professionals. Invited Presentation. New York State Bar Association Environmental Law Section Fall Meeting. Saratoga Springs , New York . October 13, 2007 . How to Control Noise Pollution in Your Community. Invited Presentation. 90th Annual Conference -New Jersey State League of Municipalities. Atlantic City , NJ November 15, 2005 . Regulatory Scheme for Noise Enforcement in New Jersey . Invited Paper. 150th Meeting - Acoustical Society of America . Minneapolis , MN October 17-21, 2005 Noise Enforcement in Cities. Invited Paper. 147th Meeting - Acoustical Society of America . New York , New York May 24-28, 2004 . Training as a Critical Component of Successful Noise Enforcement Programs. Invited Paper. 147th Meeting - Acoustical Society of America . New York , New York May 24-28, 2004 . Community Noise Impacts. Invited Presentation. Topics in Public Health. New Jersey Department of Health and Senior Services. April 16, 2003 . CA Item #4.7 Characteristics of Successful Local Noise Enforcement Programs. Invited Paper. First Pan- American/Iberian Meeting on Acoustics. Jointly Sponsored: Acoustical Society of America , the Iberoamerican Federation of Acoustics and the Mexican Institute of Acoustics. Cancun , Mexico .Dec 2-6, 2002 . Community-Based Environmental Noise Management, Invited Panelist; The Role of State and Local Governmental Agencies in Noise Abatement and Control, Invited Panelist. Inter-Noise 2002, The 2002 International Congress and Exposition on Noise Control Engineering. Dearborn , MI Aug. 19-21, 2002 . Community Noise Regulation and Enforcement: Theory and Practice. American Association of Code Enforcement. 4th Semi-Annual Education Conference. Bowie , MD. May 1-3, 2002 Regulation of Amplified Sound Sources. Noise-Con 2000. Acoustical Society of America/Institute of Noise Control Engineering. Newport Beach , CA. December 3-5, 2000 . Writing and Enforcing a Noise Ordinance. Michigan Municipal League Annual Convention. Nuts and Bolts of Writing a Noise Ordinance. Michigan Association of Municipal Attorneys Annual Conference. Macinac Island , MI , September 28-30, 2000 . Municipal Noise Regulation - Theory and Practice. International Municipal Lawyers Association, Mid-Year Seminar. Washington , D.C. April 9-11, 2000 . Effective Strategies for Community Noise Enforcement: Michigan Municipal League 9th Annual Education Conference. Mt. Pleasant, MI. March 11, 1998 . The Association of Towns of the State of New York , Annual Meeting, Educational Training Courses. New York City , February 16, 1998 . American Association of Code Enforcement 8th Annual Business and Educational Conference. Hagerstown , MD , October 20-25, 1997 . Community Noise Enforcement: Reviving a Moribund Program or Developing One Anew. Noise-Con '96, The 1996 National Conference on Noise Control Engineering, Seattle, WA, September 29-October 2, 1996. NOISE ENFORCEMENT CERTIFICATION COURSES TAUGHT Community Noise Enforcement Vehicular Noise Enforcement Vehicle Sound Reproduction Enforcement Motor Sports Ordinance Enforcement Octave Band Analysis for Enforcement Purposes New Jersey : Certification and recertification - every three months, 1991 to present. On-Site: New Rochelle, NY; Jacksonville, FL (three times); Long Beach, NY (three times); Everett, WA; St. Augustine, FL (three times), Seattle, WA (twice); Neptune Beach, FL; Gainesville, CA Item #4.7 FL; Anchorage, AK (twice); Binghamton, NY (twice); Washington State Association of Code Enforcement (three times); Ft. Collins, CO; Shelter Island, NY (three times); New York City, NY (four times); Rochester, NY; Newport, RI; Platekill, NY; Traverse City, MI; DeKalb County, GA (four times); Twinsburg, OH; Sandusky, OH; North Salem, NY; Honolulu, HI; Lafayette, LA (twice); Philadelphia, PA; Barbados, West Indies (twice); Collier County, FL (twice); Walton County, FL (three times); Greenville County (SC); Vancouver B.C. (twice); Panama City Beach, FL (twice); Matanuska-Susitna Borough, AK ON-SITE ORDINANCE DEVELOPMENT WORKSHOPS Lafayette, LA; Traverse City, MI; Plattekill, NY; St. Augustine, FL; Charleston County, SC; Lansing, MI; DeKalb County, GA; Walton County, FL, Overland Park, KS; Greenville County, SC, Decatur, AL; Yonkers, NY; Ossining, NY; Newport RI; Monroe County, FL; Fort Lauderdale, FL; Panama City Beach, FL PARTIAL LIST OF CLIENTS City of New York Law Department; City of Philadelphia Law Department, Environmental & Regulatory Compliance Division; U. S. State Department; City of New York Police Department; Bergen County (NJ) Utilities Authority; New York City Department of Environmental Protection; New York State Office of Attorney General; McDonald's Corporation, Lafayette (LA) Consolidated Government; Gaeta Recycling, Inc.; National Ecology; Browning Ferris Industries; Township of Manalapan (NJ); Kansas State Legislature; Readington Township (NJ); City of Lansing (MI); City of Tacoma (WA); City of St. Augustine (FL); Atlantic Development and Management Corp.; CareMatrix Corporation; County of Charleston (SC); DeKalb County (GA); Greenville County (SC); Ethicon, Inc.; City of Yonkers (NY); Walton County (FL); City of Overland Park (KS); City of Newport (RI); City of Ossining (NY); Alliance to Save Southern Ulster's Rural Environment; Roche Molecular Systems; Wheelabrator, Inc.; Monroe County (FL); City of Juneau (AK); Township of Branchburg (NJ); Union County United (PA); City of Fort Lauderdale (FL); City of Panama City Beach (FL); Stop & Shop Supermarket Company; Track Racket (Millville, NJ); Green Lawn Cemetery (Columbus, OH); Nissan Motor Company, Ltd. CA Item #4.7 Newport Beach, California NOISE-CON 2000 2000 December 03-05 REGULATION OF AMPLIFIED SOUND SOURCES Eric M. Zwerling Rutgers Noise Technical Assistance Center Department of Environmental Sciences 14 College Farm Road New Brunswick, NJ 08903 INTRODUCTION There are few sources of noise that generate more complaints than amplified music. Whether from a mobile source such as a vehicle or hand-held device, or from a fixed location such as a bar or party, amplified music can present a difficult enforcement profile if the appropriate approach is not employed. While solutions to noise enforcement problems are certainly jurisdiction-specific, the approaches that are ultimately the most successful are those that are precise, not over-broad, are easily applied by the enforcement officer and are easily understood by the judicial and regulated communities. If amplified sources of sound are a problem within the jurisdiction, it must first be determined where the failure is: the noise code; a low enforcement priority; or inconsistent or non-deterrent adjudication. Often, a properly drafted code will address the weakness at any of these levels. Officers will not enforce a code provision that has a poor track record in court, their command will not allocate staff resources to such enforcement, and the regulated community neither respects nor fears an unenforced code. The major differences between nuisance codes and performance codes have been previously addressed [1][2], and their relative strengths and weaknesses analyzed. As virtually every jurisdiction has a noise nuisance code the analysis of its efficacy is quite simple. Does it work? Are non-exempt sound sources controllable? Will a judge rule in enforcement's favor, or do they demand a more objective standard allowing the enforcement officer less subjectivity? A call was received at the Rutgers Noise Center from a jurisdiction asking whether they needed a new noise ordinance. Their current code used a "loud and raucous" standard, which they recognized as quite subjective. On closer questioning, it was revealed that there are no noise sources that they cannot apply this standard to, and the standard has never been successfully challenged in court. After commenting on their jurisdictional luck, it was suggested that they let sleeping dogs lie. Many jurisdictions are not so lucky. Their courts require a performance (decibel denominated) standard, or at least one which is as content-neutral as possible. However, enforcement of a performance standard is particularly difficult for vehicular and hand-held sound reproduction systems, as the sound is transient and the source is mobile. Enforcement of an A- scale permissible sound level limit may be equally unsatisfactory for the low frequency components of amplified music when masked by moderate levels of higher frequency neighborhood residual sound. CA Item #4.7 VEHICULAR SOUND REPRODUCTION ENFORCEMENT While some jurisdictions enforce a curbline sound level limit, the enforcement officer must set up in advance in the location at which they suspect a violation may occur. A proper field calibration check of the sound level meter and a measurement of the wind speed are required prior to any valid sound level measurements and this may take up to several minutes, removing any spontaneity. Enforcement is extremely effective during the operation of such a field initiative, but it is only effective at that time and in that place. Such an enforcement initiative becomes deterrent when its presence becomes generally known. Outside of these parameters, deterrence is minimal. Some jurisdictions, such as New Rochelle, NY, and Anchorage, AK, have used this approach to successfully stop 'cruising' on a specific right-of-way, but have sometimes only moved the problem elsewhere. An alternative enforcement standard is required to address this specific sound source, if enforcement is to be regular and predictable, thus providing the desired deterrence. If this deterrent is not successful, the enforcement standard must lead to successful prosecution. A review of precedents and court challenges reveals that any successful standard has to be objective, narrowly crafted and easily understood. A "plainly audible" standard has been applied in numerous jurisdictions across the United States, and this standard has been held to be neither vague nor overbroad (State v. Ewing, 914 P.2d 549, Haw. 1996). It is also clearly understandable to those it is intended to regulate. There is no subjectivity to the determination of a plainly audible sound source; there is no value judgment associated with such a determination, as there might be if the standard were "disturbing" or "loud and raucous." The following language may be used in a municipal noise code to address portable sound reproduction sound systems: Definition "Plainly audible" means any sound that can be detected by a person using his or her unaided hearing faculties. As an example, if the sound source under investigation is a portable or personal vehicular sound amplification or reproduction device, the enforcement officer need not determine the title of a song, specific words, or the artist performing the song. The detection of the rhythmic bass component of the music is sufficient to constitute a plainly audible sound. [3] Restricted Uses and Activities 1.Personal or commercial music amplification or reproduction equipment shall not be operated in such a manner that it is plainly audible at a distance of 50 feet in any direction from the operator between the hours of 8:00 a.m. and 10:00 p.m. Between the hours of 10:00 p.m. and 8:00 a.m., sound from such equipment shall not be plainly audible at a distance of 25 feet in any direction from the operator. [4] 2.Self-contained, portable, hand-held music or sound amplification or reproduction equipment shall not be operated on a public space or public right-of-way in such a manner as to be plainly audible at a distance of 50 feet in any direction from the operator between the hours of 8:00 a.m. and 10:00 p.m. Between the hours of 10:00 p.m. and 8:00 a.m., sound from such equipment shall not be plainly audible by any person other than the operator. [3] CA Item #4.7 Enforcement of this provision for vehicle sound systems is relatively simple, and can be conducted by an officer in a patrol car. When the officer hears the rhythmic bass of a sound system, visual contact should be made with the suspect vehicle, and the number of car-lengths to that vehicle estimated. Car-lengths are a common unit of distance for a patrol officer. If possible, the officer should allow the vehicle to pass, confirming that it was at this point that the maximum perceived sound intensity occurred. Fifty feet is approximately three car lengths, and if the officer allows the vehicle to travel for an additional 1-2 car lengths before making the determination to curb the vehicle, this is being generous to the alleged violator. Overtly broadcasting vehicles are often audible at distances equaling or exceeding 200 feet. Rochester, NY, has initiated a very successful program of enforcing vehicular sound limits, with both measured and plainly audible standards [5]. Supported by an aggressive advertisement program in print and broadcast media, previously agitated complainants are now calling with praise. There are reports of automotive sound system enthusiasts returning their sound systems to installers in a defensive reaction. This is due in part to the motivated enforcement of the code, as well as the summary towing of violators [6]. Several states also employ a plainly audible standard for vehicle sound systems. However, it should be noted that this provision must apply equally to personal and commercial vehicles (such as ice cream trucks). In 1999, ruling on a Kankakee County case, the Illinois Supreme Court declared unconstitutional a state statute limiting noise coming from vehicles. The statute exempted the emissions of "vehicles engaged in advertising". While noise enforcement programs often reside in the code enforcement or health department of a jurisdiction, this provision should only be enforced by police. Curbing a vehicle is potentially confrontational, and represents an unacceptable risk to an enforcement officer who is untrained to handle this situation. BASS EMISSIONS FROM FIXED SOURCES An entirely different set of problems is posed by the bass emissions of fixed sources such as bars and parties. While a plainly audible standard may be applied to such sources, many jurisdictions prefer a more objective performance standard when the source is fixed. The vast majority of performance codes are based upon A-scale permissible sound level limits. Both the loudness and annoyance of low frequency sounds are underestimated by A- scale measurements [7]. The A-weighting network is relatively less responsive to these frequencies as per the ANSI S1.4-1983 [13]. While humans are relatively insensitive to low frequency sounds of low intensity, they are much more sensitive to high intensity emissions of the same frequencies, as demonstrated by the equal-loudness contours [12]. The A-scale does not compensate for the increasing linearity of human loudness perception with increasing sound intensity. Various researchers refer to low frequency sounds as having an upper limit of between 100Hz and 250 Hz [6]. Popular musical notes played with an electric bass guitar are the low B (B1 - 61.74 Hz) on a five-string guitar and the low E (E2 - 82.41 Hz) on a four-string model [10] [9]. Thus, the A-scale is often inadequate in measuring or regulating the intrusiveness of the emissions of a sub-woofer reproducing these popular notes, which can penetrate structures and result in physical sensation. Human reaction to noise is magnified by noise-induced vibrations within the human body and the rattling of a residential structure or its contents [8]. Even jurisdictions with properly functioning performance codes may have difficulty when the source of the complaint is the rhythmic bass of amplified music, which poses two CA Item #4.7 distinct problems. When the dB(A) sound level is measured at the property line, mid-and high frequency neighborhood residual sounds may mask the measurement of the lower frequency sounds of the source under investigation. The enforcement officer may not then be able to document the intrusiveness of the sound source. A different problem may be posed if the sound levels are measured within a residence. The low frequency sounds at low intensity may not exceed permissible dB(A) sound level limits, even when plainly audible and annoying to the complainant. Numerous alternative regulatory standards may be proposed including 1/1 octave and 1/3 octave band analysis, and Zwicker loudness. However, it must be understood that most noise enforcement investigations are conducted by police, health and code officers, who have at most a 3-day certification training course. The hazards of requiring a technically complex measurement method has been discussed [1][2]. It is also important to note that these enforcement officers work for agencies who will balk at the purchase of relatively expensive sound level meters; some even refuse to buy meters meeting the standards of ANSI S1.4-1983. Very few of the meters already owned by enforcement agencies are capable of octave band analysis, much less Zwicker loudness. If forced to buy a meter costing several thousand dollars, most jurisdictions will buy only one meter, reducing the frequency of enforcement and increasing complaint response time, both of which reduce deterrence. An alternate measurement standard may be applied to these particular sound sources based upon the C-scale, the measurement of which most sound level meters are capable. At low frequencies, the relative response of the C-weighting network is significantly greater than that of the A-weighting network. The C-weighting relative response to a tone of 50 Hz is –1.3 dB, while the A-weighting relative response to the same sound is -30.2 dB [13]. Before going dormant, the Acoustical Society of America's S12 Working Group 41, Model Community Noise Ordinances was actively considering recommending a supplementary C-scale standard for the reasons mentioned above. The standard recommended below is to be applied to measurements within the residence of the complainant, which will serve the dual purpose of attenuating any masking frequencies that would be measured at the property line, and demonstrating the intrusiveness of the sound under investigation within the living space of the complainant, the latter of which leads to more intuitive adjudication. The standard is relative and not absolute, and thus flexible in different environments. The following language may be amended into a municipal noise code to address bass emissions from fixed sources: Definitions "C" weighted sound level is the sound level as measured using the "C" weighting network with a sound level meter meeting the standards set forth in ANSI S1.4-1983 or its successors. The unit of reporting is dB(C). The "C" weighting network is more sensitive to low frequencies than is the "A" weighting network [11]. "Extraneous sound" means a sound which is relatively intense, intermittent and of short duration and is neither part of the neighborhood residual sound, nor comes from the sound source under investigation. These sources of sound are noted, but excluded from all measurements [11]. "Neighborhood residual sound level" means that measured value which represents the summation of the sound from all of the discrete sources affecting a given site at a given time, exclusive of extraneous sounds, and those from the source under investigation. CA Item #4.7 Neighborhood residual sound level is synonymous with background sound level. Neighborhood residual sounds are differentiated from extraneous sounds by the fact that the former are more steady state, although they may not be continuous [11]. "Real property line" means either (a) the imaginary line including its vertical extension that separates one parcel of real property from another; (b) the vertical and horizontal boundaries of a dwelling unit that is part of a multi-dwelling unit building; or (c) on a multi-use property, the interface between the two portions of the property on which different categories of activity are being performed (e.g., if the multi-use property is a building which is residential upstairs and commercial downstairs, then the real property line would be the interface between the residential area and the commercial area) [3]. "Total sound level" means that measured level which represents the summation of the sounds from the sound source under investigation and the neighborhood residual sounds which affect a given place at a given time, exclusive of extraneous sound sources [11]. Permissible sound level limit If the source of sound is an amplified sound reproduction device, and the complainant states that the rhythmic bass component of the music is disturbing within their residence, then the noise enforcement officer may take sound level measurements within the residence of the complainant. No person shall cause, suffer, allow, or permit the operation of any amplified source of sound in such a manner that it raises the total sound levels by the permissible sound level limits set forth below when measured within the residence of a complainant. These sound level measurements shall be conducted with the sound level meter set for "C" weighting, "fast" response. Such measurements shall not be taken in areas which receive only casual use such as hallways, closets and bathrooms. For the purposes of these measurements, the neighborhood residual sound level is that sound level which is measured in the residence when the sound source under investigation is not prominent, or in a room on the same floor that is relatively unaffected by the sound source under investigation. The C-scale is more sensitive to low frequency sound levels than the A-scale. An increase of 3 dB is perceived by humans as being perceptibly louder, 5 dB is perceived as quite noticeably louder, and 10 dB is twice as loud [11] [14]. AMPLIFIED SOUND REPRODUCTION DEVICE MAXIMUM PERMISSIBLE SOUND LEVEL LIMITS Indoors across a real property line dB(C) ABOVE NEIGHBORHOOD RESIDUAL SOUND LEVEL School nights 10:00 PM - 7:00 AM Non-school nights 11:00 PM and 9:00 AM All other times 3 dB(C) 5 dB(C) The above discussion could be made more technically accurate but immeasurably more complex by the introduction of considerations of frequency, amplitude, and phons. For instance, at 50 Hz, a 6 dB increase results in an increase of approximately 10 phons which CA Item #4.7 implies a doubling of loudness. However, a discussion of the Fletcher-Munson curve with a municipal attorney will shorten the audience considerably, and serves no significant purpose. If the above standard is adopted, it is quite progressive and meaningfully protective. The specific permissible sound level limits may be adjusted, as can be the times within which they are permitted. This provision is content-neutral, removes all subjectivity from the determination, and avoids the A-scale pitfall of an officer hearing an intrusive sound level without the ability to document an exceedance which would result in prosecution. A properly trained investigator can complete the entire investigation in fifteen minutes. This standard has already been adopted by St. Augustine, FL and Lafayette, LA. CONCLUSIONS The relatively simple code amendments proposed herein can effectively address the difficult enforcement profile that amplified sound sources may present, and thus provide an efficient tool with which to regulate the significant impacts that they have on complainant quality of life. REFERENCES 1."Turning Down the Volume: Effective Strategies for Community Noise Enforcement," E.M. Zwerling, The Police Chief, 63, 53-59 (1996). 2."Community Noise Enforcement: Reviving a Moribund Program or Developing One Anew," E.M. Zwerling & B. J. Turpin, Proceedings of Noise-Con 96, The 1996 National Conference on Noise Control Engineering, 955-960 (1996). 3."Local Noise Enforcement Options and Model Noise Ordinance With Pre-Approved Language for the State of New Jersey," E.M. Zwerling, D. Pinto, P. Hanna, J. Lepis & B. Turpin. Rutgers Cooperative Extension Publication #E215 (1997). 4."Boom Cars - Boom Boxes," E.M. Zwerling, The Noise Consultancy, LLC Website, "http://www. noiseconsultancy.com/code_tips, (2000). 5.E.M. Zwerling (contributing ed.), Vehicle Sound Reproduction Enforcement - City of Rochester, New York (certification course manual, Rutgers Noise Technical Assistance Center, New Brunswick, NJ, 1998) 6.“Personal communication,” T. Borshoff, City of Rochester - Neighborhood Empowerment Teams (1999). 7."Annoyance due to low frequency noise and the use of the dB(A) scale" K. Persson and M. Bjorkman, J. Sound and Vibration, 27, 491-497 (1988). 8."Sources and effects of low-frequency noise,"B. Berglund, P. Hassmen & R.F. Soames Job, J. Acoust.Soc. Am., 99, 2985-3002 (1996). 9."Personal communication," R. Berthelson (2000). 10."Frequencies for equal-tempered scale" Anon. Department of Physics, Michigan Technological University Webpage, http://www.phy.mtu.edu/~suits/notefreqs.html. 11.“Lafayette Consolidated Government – Noise Code,” E.M. Zwerling, Lafayette, LA (1999). 12."The Loudness of Sounds," W.A. Munson, in Handbook of Noise Control (C.M. Harris, ed.), (McGraw Hill, New York, 1957). 13.“American National Standard Specification for Sound Level Meters,” ANSI S1.4-1983, (Acoustical Society of America, New York, 1983). 14.A. Thumann & R. K. Miller. Fundamentals of Noise Control Engineering. (Fairmont Press Inc./Prentiss Hall, Atlanta, 1986). CA Item #4.7 Analysis of the “plainly audible” standard for noise ordinances Eric M. Zwerling 1 Rutgers University Noise Technical Assistance Center2 Department of Environmental Sciences 14 College Farm Road New Brunswick, NJ 08903 USA Amy E. Myers, Esq.3 Harrison Sale McCloy, Chtd2 304 Magnolia Avenue Panama City, FL 32401 USA Charles Shamoon, Esq.4 Assistant Counsel, NYC Dept. of Environmental Protection2 59-17 Junction Blvd. Flushing, NY 11373-5108 USA Noise ordinances which apply a standard of “plainly audible” have advantages which may outweigh the disadvantages under certain circumstances. Drafting considerations should include: nature of the noise source; composition of the enforcement agency; legal precedents or constraints within the jurisdiction; whether the standard can be easily understood by those it regulates; and, whether the standard provides meaningful guidance to facility operators and engineers to achieve compliance. A comparative analysis is provided for the following standards: performance (decibel denominated); nuisance (subjectively worded); and, “plainly audible”. Performance standards require the use of sound level meters and trained personnel, and are not easily applied to sources that are transient or mobile. Nuisance standards can be overturned as vague and overbroad. Courts across the United States have upheld the validity of “plainly audible” standards for amplified sound sources, although not uniformly. Case law is discussed. If the “plainly audible” standard is incorporated into a content-neutral code provision, and is impartially applied, it has significant utility and addresses noise sources not easily addressed otherwise. 1 zwerling@rutgers.edu 2 The opinions expressed herein are those of the authors and do not necessarily reflect the opinion of their respective agencies or employers. 3 amyers@hsmclaw.com 4 CharlesSh@dep.nyc.gov CA Item #4.7 1 INTRODUCTION The goal of a community noise ordinance is to protect quality of life, and to do so in a manner that is predictable, fair and legally defensible. While the goals appear simple, the drafting of such an ordinance is not, and its final form should consider a myriad of variables both internal and external to any given jurisdiction. Critical factors include: the nature of the noise source; composition of the enforcement agency; legal precedents or constraints within the jurisdiction; whether the standard can be easily understood by those it regulates; and, whether the standard provides meaningful guidance for facility operators and engineers to achieve compliance. Local government 5 noise ordinances contain provisions that fall into essentially two categories: performance and nuisance. Performance provisions establish permissible sound level limits which must be measured with a sound level meter, while nuisance provisions include prohibitions against the emission of sound deemed to be disturbing noise by a complainant at the point of reception. In either case, verification of a violation requires investigation by an enforcement agent (unless the witness/victim swears out a complaint, in which case they are the plaintiff and have the burden of proof). There are inherent benefits and drawbacks to both performance and nuisance standards; many of the drawbacks are obviated with the use of a "plainly audible" standard. Performance provision investigations are precise and content-neutral, but require equipment, trained personnel and time. Challenges are less likely and adjudication is more certain. Performance provisions are inflexible in their application, which can be particularly problematic when the sound level of an amplified source does not exceed a permissible limit, and the sound is not masked by the intensity and/or frequency of ambient sounds. Nuisance codes are more flexible, but adjudication is unpredictable due to the subjective nature of nuisance determination. A "plainly audible" investigation can be conducted relatively quickly, without equipment or extensive training, and is based upon an objective standard which has been repeatedly upheld in court as meeting the requirements set forth by the United States Supreme Court that: “To withstand constitutional scrutiny, government restrictions must be (1) content neutral, in that they target some quality other than substantive expression; (2) narrowly tailored to serve a significant governmental interest; and (3) permit alternative channels for expression 6 .” 2 THE PLAINLY AUDIBLE STANDARD Plainly audible standards are exactly what they sound like—standards that prohibit plainly audible sounds at or beyond a distance certain. Sample "plainly audible" provisions follow: DEFINITIONS "Plainly audible" means any sound that can be detected by a person using his or her unaided hearing faculties. As an example, if the sound source under investigation is a portable or personal vehicular sound amplification or reproduction device, the enforcement officer need not determine the title of a song, specific words, or the artist performing the song. The detection of the 5 As used herein, the term “local government” shall mean a city, town, county, or state, or other political subdivision governed by an administrative body authorized to protect the general health, safety and welfare of its citizens. 6 Ward v. Rock Against Racism, 109 S.Ct. 2746 (1989). CA Item #4.7 rhythmic base component of the music is sufficient to constitute a plainly audible sound. "Real property line" means either (a) the vertical boundary that separates one parcel of property (i.e., lot and block) from another residential or commercial property; (b) the vertical and horizontal boundaries of a dwelling unit that is part of a multi-dwelling unit building; or (c) on a multi-use property, the vertical or horizontal boundaries between the two portions of the property on which different categories of activity are being performed. “Sound production device” means any device whose primary function is the production of sound, including, but not limited to any, musical instrument, loudspeaker, radio, television, digital or analog music player, public address system or sound-amplifying equipment. SAMPLE PROVISIONS (1) Personal or commercial music amplification or reproduction equipment shall not be operated in such a manner that it is plainly audible at a distance of 50 feet in any direction from the operator between the hours of 8:00 a.m. and 10:00 p.m. Between the hours of 10:00 p.m. and 8:00 a.m., sound from such equipment shall not be plainly audible at a distance of 25 feet in any direction from the operator.7 (2) Self-contained, portable, hand-held music or sound amplification or reproduction equipment shall not be operated on a public space or public right-of- way in such a manner as to be plainly audible at a distance of 50 feet in any direction from the operator between the hours of 8:00 a.m. and 10:00 p.m. Between the hours of 10:00 p.m. and 8:00 a.m., sound from such equipment shall not be plainly audible by any person other than the operator. (3) Sound production devices may not be operated in such a manner that they are plainly audible at a distance of one hundred (100') feet from the building, structure or vehicle in which they are located. (4) Sound production devices may not be operated in such a manner that they cross a real property line and are plainly audible within a residence between the hours of 10:00 PM and 8:00 AM. (5) No person shall operate or use or cause to be operated any sound production device, for commercial or business advertising purposes or for the purpose of attracting attention to any performance, show, sale or display of merchandise, in connection with any commercial business enterprise: (i) outside or in front of any such building, place or premises, abutting on or adjacent to any street, park or public space; (ii) in or upon any vehicle operated, standing or being in or on any public street, park or place; (iii) from any stand, platform or other; (iv) from any airplane or other device used for flying, over the city; (v) from any boat on the waters within the jurisdiction of the city; or (vi) anywhere on the public streets, 7 Distances are included as examples only. The basis for choosing an appropriate distance is discussed below. It should be noted that vehicles engaged in overt broadcasting are audible at distances significantly exceeding 100 feet. In all enforcement actions it is recommended that compliance determination is made at a distance exceeding the permissible limit. There is also significant value to testimony of impact beyond simple audibility, such as the inspector stating whether there were prior complaints or whether passers-by noted or exhibited discomfort to or avoidance of the noise. CA Item #4.7 public sidewalks, parks or places where sound from such reproduction device may be heard on any public street, sidewalk, park or place. (6) Motorcycles. No person shall cause or permit any motorcycle to operate on a public right-of-way where the muffler or exhaust generates a sound that is plainly audible to another individual at a distance of 200 feet or more from the motorcycle. (This provision may be used as probable cause to curb the vehicle for further inspection, if such is desired). The permissible distance for “plainly audible” sound should reflect jurisdictional character and will. Consideration should be given to: time of day; location of potentially sensitive receptors (the average setback of residences from roadways, the proximity of nightclubs to residences, etc.); population density; and, whether it is the jurisdictional will to protect “the commons,” or public spaces. 3 PRACTICAL CONSIDERATIONS 3.1 Equipment and Training Enforcement of a decibel-denominated performance provision requires the use of a sound level meter. At a minimum, the meter should conform with ANSI S-1.4-1983, and along with its calibrator be certified annually at an accredited laboratory. The investigator should have received training in the use of the meter, and the protocols for compliance determination measurements in complex acoustical environments. These requirements alone limit the number of practitioners in even the largest enforcement agency, unless that agency is very highly motivated. However, if all these requirements are met, and the measurements are properly conducted, legal challenges to the enforcement action are unlikely to be successful. In fact, a well-documented performance provision investigation is often deterrent to challenge. Enforcement of both nuisance and "plainly audible" provisions require no equipment or extensive training, thus investigations can be undertaken by virtually all field investigators in an agency. Complaint response time is greatly influenced by the number of qualified meter operators on any given shift, and whether the investigator always carries the meter. These may not be issues for a noise source that is relatively static, but they are when the source is either transient, mobile or both. Enforcement delayed may well be enforcement denied, which has implications both for immediate relief and long term deterrence. This point is particularly relevant to sound production devices, whether amplified or not, and whether fixed or mobile. 3.2 Self-Policing Some of these same considerations, equipment and training, determine whether a sound source can easily self-police compliance. One of the keys to effectively quieting a jurisdiction is when sound sources are motivated to action by a credible enforcement program and are capable of self-policing. A performance provision may well inform them of the permissible limits in language that is precise, meeting that legal requirement, but they may still not have the capacity to make such a determination for themselves even if they want to comply in good faith. Performance provisions establish permissible limits not only in dB(A), which all meters can measure, but sometimes also dB(C) and octave bands. While some provisions specify the use of the Lmax metric, others require Leq or even cumulative duration above a threshold. These CA Item #4.7 provisions may be very precise, but they require relatively sophisticated meters that only an enforcement agency or acoustical consultant may have. Nuisance provisions have language that is inherently subjective, even while there are ongoing efforts to define these provisions more precisely, thus more objectively. As such, self- policing of nuisance provisions may be unreliable, especially if the observer has just been inside the facility under investigation. A provision prohibiting "plainly audible" noise at a specific distance from the source or its property line is an unambiguous bright line for all observers, whether from enforcement or management, against which they can determine compliance, with virtually no preparation required. There is nothing about the standard which is vague, another legal requirement to be adjudged valid. 3.3 Subjectivity and Objectivity Objectivity is in many ways a corollary to content-neutrality, and this is one of the underpinnings to a legally defensible provision regulating speech of any nature or type. Certainly, sound level measurements are influenced only by the intensity of sound, not by its content, and are thus inherently objective. Nuisance provision enforcement ideally considers only the intensity, but nuisance provisions often employ subjective adjectives to describe prohibited acts (e.g., 'disturbing:, "loud" "raucous", "reasonable', etc). Enforcement actions based on such a provision may well be challenged as lacking objectivity, or the provision itself challenged as vague or overbroad. That said, through common use and judicial familiarity many nuisance cases are successful; however, it is also true that many enforcement actions are not undertaken by agencies that are uncomfortable enforcing such subjective language. The determination of whether a sound is "plainly audible" is objective and content-neutral, and this finding has been the upheld in many court decisions. However, challenges to "plainly audible" provisions have been successful where the provision itself is not content neutral through unequal application, such as exempting a specific source category within a greater whole (e.g., permitting amplified music only from commercial vehicles). Thus, the drafter of any such provision must be mindful of this point in the construction of the provision and exemptions there from. As well, people should not draw incorrect and overbroad conclusions from provisions stricken for lacking content neutrality, understanding the limited basis of this rejection. 3.4 Applicability and Design For Compliance "Plainly audible" provisions are most appropriately applied to volitional sources such as sound production devices, whether amplified or not. The operator chooses the time, place and manner of the emissions, and the operation of the device has only one purpose - to emit sound. The emissions can be modified quickly and simply to achieve compliance, and also for the purpose of avoiding enforcement through evasive behavior. In those cases where physical plant modifications must be undertaken to achieve compliance with a "plainly audible" provision (e.g., a loud bar), there are numerous remediation and monitoring strategies that can be employed, much as is the case with facilities seeking compliance with a performance provision. In all cases, a conservative approach is required to designing a remediation strategy, regardless of the regulatory standard. If the jurisdiction enforces a performance provision with an absolute limit (e.g., 50 dB(A) at or within the property line of an affected person between the hours of 10:00 PM and 7:00 AM), the endpoint is clear, although the design should be CA Item #4.7 conservative. If, however, the jurisdiction has a performance standard set relative to the ambient sound level (e.g., 3 dB(A) (or dB(C)) above ambient), even the assumption of the permissible limit must be conservative, possibly using L90 or Lmin ambient measurements. Much is the same with designing for "plainly audible" compliance. Once physical plant modifications are completed (e.g., a double-door system, vibration isolation mounting of speakers, installation of a compressor/limiter, etc.), sound system settings can be tuned for intensity and frequency distribution, and once set, physically or electronically locked down. If the use of a pre-tuned "house sound system" is impractical, a real-time monitoring program can help insure compliance. Simply, simultaneous measurements/observations are conducted both in a fixed location inside the bar and at the point of compliance determination. A "not to exceed" sound level is determined (preferably dB(C)) at a location inside the bar at which a monitoring microphone can be mounted, remotely wired to a sound level meter set to threshold trigger at the "not to exceed" level. A light can be wired to alert the operator of the sound system for real-time feedback when the threshold level is exceeded. The New York City Department of Environmental Protection maintains a document on their web page to assist facilities in achieving compliance: Noise Control Guidance for Nightlife Industry8 , 4 LEGAL ANALYSIS Governments are charged with the general authority to enact regulations that will protect the general health, safety and welfare of those in their community, though the regulation of noise is also expressly authorized. The Noise Control Act of 1972 specifically finds that “primary responsibility for control of noise rests with State and local governments,”9 and state legislation often expressly enunciates this specific authority to enact regulations protecting citizens from excessive and unnecessary noise.10 Though the charge is finite enough, the exercise of this authority has manifested itself in infinite variations of sound control regulations which rely largely on the use of nuisance, performance and plainly audible based standards, or a combination of them. While the United States Supreme Court has recognized that the use of sound amplification equipment within reasonable limits is an aspect of free speech protected under the First Amendment,11 there is no constitutionally protected right to amplify sound, nor is there a constitutional right to force unwilling people to listen to your speech or expression. As noted by one Oregon court, “freedom of speech is not intended to protect, and indeed is incompatible with, a cacophony.”12 Therefore, a local government can constitutionally restrict such expression, even in a public place, if the limitations on the time, place and manner of the protected speech are reasonable and content-neutral. Certainly, the plainly audible standard is one way to do just that. The appeal of the plainly audible standard to local governments should be apparent from its practical attributes, as discussed above, but it also provides a measurable amount of comfort for 8 http://www.nyc.gov/html/dep/pdf/noise_control_guide_comm.pdf 9 42 USC Chapter 65 § 4901(a)(3) 10 By way of illustration and example, the Constitution for the State of Florida provides in Article II, Section 7(a) that “Adequate provision shall be made by law for the abatement of …excessive and unnecessary noise.” 11 See Ward, 491 U.S. 781 (1989); Saia, 334 U.S. 558 (1948). 12 Portland v. Aziz, 47 Or.App 937 (1980). CA Item #4.7 the general strength of its legal attributes, as will be discussed below. When properly drafted,13 it is a content neutral regulation that imposes reasonable time, place and manner restrictions on amplified sound sources; it is not overly broad; it is not vague because it puts both sound regulators and sound producers on fair notice of what is permissible and what is prohibited; and it is inherently easily and consistently enforceable. This conclusion is drawn from a review of the standard’s resiliency upon its examination by courts across the United States which have not found the standard legally wanting. Even so, the plainly audible standard has been vulnerable to constitutional challenges long familiar to nuisance and performance based standards--and has failed, as those do, when it is not content neutral, is not narrowly tailored to achieve the government's interest motivating the regulation, does not permit alternative channels for expression, or when it makes unlawful constitutionally protected conduct or permits arbitrary or discriminatory enforcement. 4.1 Plainly Audible Standards are not (and need not be) Overbroad The overbreadth doctrine appears to be the most popular form of constitutional attack of noise regulations, presumably because the plaintiff need not establish that the regulation is unlawful as applied to him, but may make the challenge on behalf of any and all parties who may be adversely affected by its reach and therefore render the regulation wholly and immediately invalid. Further, overbreadth challenges may be sustained either from the text of the regulation or by demonstration of particular facts unique to the plaintiff or the community. For obvious reasons, this analysis will be limited to examinations based on the text of the plainly audible regulations. An overbroad regulation is one that restricts protected speech or conduct along with unprotected speech or conduct. When a regulation primarily regulates conduct rather than speech, the “overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.”14 Plainly audible standards are not directed at the content of broadcasted speech but rather at the intensity of sound coming from amplified sound sources, be they fixed or mobile. Courts have examined provisions with the same or similar language to that set forth in Section 2 above, and have found that these prescriptions against loud noises are an attempt to control conduct, i .e., the use of the volume control on a sound production device, rather than an attempt to control the type of speech being broadcast.15 More importantly for our purposes here, courts have rejected overbreadth challenges to regulations that prohibit broadcasts of sound from mobile sources that are plainly audible at distances of ten feet or more,16 and from fixed sources that are plainly audible at distances of as little as five feet or more.17 13 While it is the intent of this paper to recommend the plainly audible standard for its many merits, this paper does not and cannot assert the legal infallibility of a standard that relies on the use of the term “plainly audible” to save or justify it against language in or motives for the same regulation that does not meet constitutional muster. 14 Broadrick v. Oklahoma, 413 U.S. 601 (1973). 15 See State v. Dorso, 4 Ohio St.3d 60 (1983). 16 See, e.g. Davis v. State, 710 So.2d 635 (Fla.Dist.Ct.App.1998) (100 feet); People v. Arguello, 327 Ill.App.3d 984, 262 Ill.Dec. 272, 765 N.E.2d 98 (Ill.App.Ct.2002) (75 feet); State v. Adams, No. 02CA171, 2004 WL 1380494, (Ohio Ct. App., June 14, 2004) (50 feet); State v. Medel, 139 Idaho 498, 80 P.3d 1099 (Idaho Ct.App.2003) (50 feet); Holland v. City of Tacoma, 90 Wash.App. 533, 954 P.2d 290 (Wash.Ct.App.1998) (50 feet); United States v. Black, 2009 WL 2960468 (US Dst. Ct Mich. 2009). 17 See, e.g. Kelleys Island v. Joyce (2001), 146 Ohio App.3d 92, 765 N.E.2d 387 (6th Dist.) (150 feet);Schrader v. State, No. 03-99-00780-CR, 2000 WL 1227866 (Tex.Ct.App. Aug. 31, 2000) (30 feet); Commonwealth v. Scott, 878 CA Item #4.7 4.2 Plainly Audible Standards are not Vague Noise regulations challenged for vagueness often overlap with overbreadth and due process challenges, though the "void for vagueness" challenge itself is independent from either of those. Fundamentally, a regulation can be vague if it fails to provide person of ordinary intelligence a reasonable opportunity to understand what it prohibits, or if it authorizes arbitrary or discriminatory enforcement. Case law has repeatedly and firmly decided that plainly audible standards are not vague, leaving the courts to focus on other constitutional issues a noise regulation might present in any given case. In a series of cases examining a plainly audible standard contained in a Florida statute regulating the operation of amplified sound devices from motor vehicles 18 , all decided within the last year to six months of this writing, the most recent Florida Court to have weighed in on the issue has held that the statute, though unconstitutional on other grounds, provides both "fair notice of the prohibited conduct" to those who would be regulated by it and "an explicit guideline to those charged with enforcing" it.19 This Florida court goes on to conclude that the plainly audible standard itself "is no less precise than the 'loud and raucous' standard approved by the United States Supreme Court in City of Cincinnati v. Discovery Network, Inc.20 Notably, in these and other cases where the court made quick work of the "vagueness" challenge set forth, a definition of "plainly audible" was provided within the regulation or in other policy documents controlling the enforcement of such a regulation, thus preventing elastic interpretations or ad hoc prosecutions. While helpful for parties regulated and regulating, however, the lack of a definition of "plainly audible" is not necessarily fatal to such a regulation, where other language in the regulation will enable a court to imply a reasonable person standard. The reasonable person standard, though not mathematically precise like a performance standard, has nevertheless been identified by courts as an objective standard which gives fair notice of prohibited conduct, thus providing an interpretation courts may rely upon to sustain such regulation in a way that is not impermissibly vague. Going forward, it bears noting that this challenge is unlikely to prove a successful means for striking down plainly audible noise regulations, for two reasons. As a general rule, local government ordinances are liberally construed in favor of the local government and are presumed valid. Thus, where a definition of plainly audible is provided in the regulation itself or supplemental regulations, courts will defer to that definition, and make every effort to find that the definition is reasonably clear and workable within the greater context and intent of the A.2d 874 (Pa.Super.Ct.2005) (25 feet); Moore v. City of Montgomery, 720 So.2d 1030 (Ala.Crim.App.1998) (5 feet). 18 Section 316.3045, Florida Statutes reads: 316.3045 Operation of radios or other mechanical soundmaking devices or instruments in vehicles; exemptions.— (1) It is unlawful for any person operating or occupying a motor vehicle on a street or highway to operate or amplify the sound produced by a radio, tape player, or other mechanical soundmaking device or instrument from within the motor vehicle so that the sound is: (a) Plainly audible at a distance of 25 feet or more from the motor vehicle; or (b) Louder than necessary for the convenient hearing by persons inside the vehicle in areas adjoining churches, schools, or hospitals. (3) The provisions of this section do not apply to motor vehicles used for business or political purposes, which in the normal course of conducting such business use soundmaking devices. The provisions of this subsection shall not be deemed to prevent local authorities, with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power, from regulating the time and manner in which such business may be operated. 19 See Montgomery v. State of Florida, 69 So.3d 1023 at 1029 (Fla. 5th DCA 2011). 20 City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993). CA Item #4.7 ordinance. Because of the court's tradition of deference in the presence of a definition, drafters may shield a regulation from vulnerability on this point by assuring that a definition is provided in a regulation. Second, the more often a plainly audible standard is examined by courts in the same jurisdiction or persuasive geographical area, the less discretion the court has to deviate from its previous conclusions and controlling precedent. Thus, if upon an early examination of the plainly audible standard a court finds it to be reasonably clear or unlikely to allow arbitrary or discriminatory enforcement, and upon a subsequent examination finds that either or both of those findings was upheld in a previous case, it will often defer to the prior decision. Because there are only two elements of the vagueness test, the arguments that can be raised in this context are limited. Once a court finds that the standard puts reasonable people on fair notice of the prohibited conduct, and also finds that the regulation does not lend itself to arbitrary or discriminatory enforcement, the analysis is over. That appears to be the case for “void for vagueness” challenges of the plainly audible standard. While as-applied challenges could still arise, the outcomes of facial challenges, have, on this point, been firmly established. 4.3 Plainly Audible Standards which are Content Neutral may reasonably impose time, place and manner restrictions on amplified sounds The United States Supreme Court has provided pivotal guidance in terms of drafting noise regulations and the shaping of jurisprudence on the constitutional validity of such regulations. In ruling on a New York City case the Supreme Court declared that: “To withstand constitutional scrutiny, government restrictions must be (1) content neutral, in that they target some quality other than substantive expression; (2) narrowly tailored to serve a significant governmental interest; and (3) permit alternative channels for expression.”21 4.3.1 Plainly Audible Standards are Content Neutral Government regulation of expressive activity is content neutral so long as it is “justified without reference to the content of the regulation speech.”22 Reviewed in isolation from other standards contained in noise regulations, “plainly audible” standards nearly always pass the content neutrality test, as the central feature of a “plainly audible” standard is its obvious focus on sound intensity rather than the message or type of sound heard. “Plainly audible” regulations become vulnerable, however, when they carve out specific exceptions for particular messages or sources of sound. This is not to say that exemptions are fatal—only that the drafter must consider them with caution. If the exemptions are content-based, the entire regulation is presumed invalid unless the government can demonstrate the regulation is necessary to serve a compelling (not merely significant) state interest and is precisely drawn to achieve that end.23 The courts do not appear to have established a clear test for determining whether or when the government interest is compelling, though it appears the concept is meant to apply to something necessary or crucial rather than something desired or preferred. Courts have upheld plainly audible standards that create exemptions for sources emanating from traditional public fora such as schools and public property. Public forums are those places “which ‘have immemorially been held in trust for the use of the public and, time out of mind, have been used for the purposes of assembly, 21 Ward v. Rock Against Racism, 109 S.Ct. 2746 (1989). 22 Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984). 23 People v. Jones, 188 Ill.2d 352 (1999). CA Item #4.7 communicating thoughts between citizens, and discussing public questions.’”24 Courts upholding standards containing such exemptions generally find that exempting public fora from an ordinance's application clearly serves a significant governmental interest and is consistent with long-standing First Amendment jurisprudence.25 That said, courts have struck “plainly audible” standards exempting political and business vehicles,26 and “plainly audible” standards exempting vehicles engaged in advertising.27 These cases generally rely on an instruction found in a Supreme Court case regarding free speech which states that “[a] prohibition against the use of sound trucks emitting ‘loud and raucous' noise in residential neighborhoods is permissible if it applies equally to music, political speech, and advertising.”28 Examining those cases where exemptions proved fatal in toto, it is noteworthy that the fatal flaw in those ordinances is not the presence of a regulatory exemption, but rather the governments’ apparent interest in using those regulations to protect commercial speech to a greater degree than noncommercial speech—an action which is contrary traditional jurisprudence that has typically assigned commercial speech a “subordinate position” in the scale of First Amendment values.29 4.3.2 Plainly Audible Standards are Narrowly Tailored to Serve a Significant Government Interest Turning to the significant government interest element of this test, there appears to be little or no question that government has a significant interest in protecting citizens from unwelcome or excessive noise. A speech-restrictive regulation will satisfy this requirement so long as it “promotes a substantial government interest that would be achieved less effectively absent the regulation.”30 Great deference is traditionally given to the governing body on this point in most First Amendment law, though it seems that the Supreme Court’s endorsement in Ward has made this a point that often appears to be judicially assumed by most courts rather than one that needs to be demonstratively established in every case by the governing body. Despite the apparent ease with which this point can be met, drafters are nonetheless wise to include a statement of that government’s intent for the regulation(e.g., Basis and Background, Declaration of Findings and Policy, Preamble, etc.), as such text also serves to reinforce the point in the event of a regulatory challenge. Importantly for the “narrowly tailored” part of this test, the regulation need not be the least restrictive means of achieving the government’s interest. “When a content-neutral regulation does not entirely foreclose any means of communication, it may satisfy the tailoring requirement even though it is not the least restrictive or least intrusive means of serving the statutory goal.”31 While a local government has the burden of proof to show that alternative avenues exist, the burden is met upon the submission of any alternative avenues. 24 Perry Educ. Assn. v. Perry Local Educators' Assn., 460 U.S. 37 (1983), citing Hague v. CIO, 460 U.S. 37 (1939). 25 Niles v. Leonard, 2010 WL 5550234 (Ohio 2010); See also People v. Arguello, 327 Ill.App.3d 984 (2002). 26 Daley v. City of Sarasota, 752 So.2d 124 (Fla. 2nd DCA 2000); State of Florida v. Catalano, 60 So.2d 1139 (Fla.2nd DCA 2011); Montgomery v. State of Florida, 69 So.3d 1023 (Fla. 5th DCA 2011). 27 People v. Jones, 188 Ill.2d 352 (1999). 28 City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993). 29 U.S. v. Edge Broad. Co., 509 U.S. 418, 430, 113 S.Ct. 2696, 125 L.Ed.2d 345 (1993). 30 Ward v. Rock Against Racism, 109 S.Ct. 2746 (1989). 31 Costello v. Burlington, citing Hill v. Colorado, 530 U.S. 703, 726 (2000). CA Item #4.7 4.3.3 Plainly Audible Standards Permit Amply Alternative Channels of Communication Again, plainly audible standards nearly always pass this test, as they generally do not impose a total ban on the use of amplified sound devices—they only restrict the intensity at which these devices may operate. According to the Supreme Court in Ward, the fact “that the city’s limitations on volume may reduce to some degree the potential audience for respondent’s speech is of no consequence, for there has been no showing that the remaining avenues of communication are inadequate.”32 As courts also tend to observe, those remaining avenues often involve the speech or expression which does not require amplified sound. Summed up in the words of a fairly recent New York City case, “the requirement that ample alternative channels exist does not imply that alternative channels must be perfect substitutes for those channels denied to plaintiffs by the regulation at hand; indeed, were we to interpret the requirement in this way, no alternative channels could ever be deemed ample.”33 5 PLAINLY AUDIBLE PROVISION AS A SUBSTITUTE FOR A PERFORMANCE PROVISION IN NEW JERSEY In the case where a jurisdiction is precluded from employing a performance standard, a "plainly audible" standard may be substituted. In January 2012, S-2850 was signed into New Jersey law as P.L. 2011 c. 198. The law states that "It shall not be a violation of the "Noise Control Act of 1971." P.L. 1971, c.418 (C.13:1G-1 et seq.), or any rule or regulation established pursuant thereto, for a person to operate (1) a beach bar, existing and operating as of August 31, 2011, during normal business hours, as defined by the department [New Jersey Department of Environmental Protection (NJDEP)], between May 15 and October 15...". The state noise code (N.J.A.C. 7:29) was drafted and adopted pursuant to NJSA13:1G-4 Codes, rules and regulations; contents; promulgation; enforcement. Authority to enforce the state code has been delegated to county Departments of Health. Local jurisdictions may adopt a performance code, containing specific decibel-denominated sound level limits, pursuant to 13:1G-21. Validity of existing civil or criminal remedies; validity of ordinances or resolutions stricter than this act: No existing civil or criminal remedy now or hereafter available to any person shall be superseded by this act or any code, rules, regulations or orders promulgated pursuant thereto. No ordinances or resolutions of any governing body of a municipality or county or board of health which establish specific standards for the level or duration of community noise more stringent than this act or any code, rules, regulations or orders promulgated pursuant thereto shall be superseded. Nothing in this act or in any code, rules, regulations or orders promulgated pursuant thereto shall preclude the right of any governing body of a municipality or county board of health, subject to the approval of the department, to adopt ordinances, resolutions or regulations which establish specific standards for the level or duration of community noise more stringent than this act or any code, rules or regulations promulgated pursuant thereto. The NJDEP has consistently maintained the position that their authority to review and approve local ordinances does not extend to nuisance codes, which are not adopted pursuant to 32 Ward v. Rock Against Racism, 109 S.Ct. 2746 (1989). 33 Masatrovincenzo v. City of New York, 435 F.3d 78, 101 (2d. Cir. 2006). CA Item #4.7 N.J.S.A.13:1G-1 et seq., as they do not establish "specific standards for the level or duration of community noise" (i.e., are not decibel-denominated). This has extended to "plainly audible" standards as well. In State of New Jersey v. Clarksburg Inn 34 , the Superior Court of New Jersey upheld a challenge to a "plainly audible" provision noting that: "The governing body of every municipality may make, amend, repeal and enforce ordinances to preserve the public peace and order and to prevent disturbing noise, N.J.S.A. 40:48-1. In addition, any municipality may make, amend, repeal and enforce ordinances it deems necessary and proper for the good government, order and protection of persons and property and the preservation of the public health, safety and welfare of the municipality and its inhabitants, N.J.S.A. 40:48-2. " Thus, the court found that the authority to adopt a local nuisance code, specifically one containing a “plainly audible” provision, was found in N.J.S.A. 40:48, not N.J.S.A. 13:1G. The Court specifically rejected as unpersuasive the argument that "the vague language in the Ordinance should be replaced with objective criteria for enforcement based upon sound decibel levels," and the fact that "the New Jersey Noise Control Act regulate(s) noise based upon decibel levels." "It is not this court's role to require the choice of one method over another when as here the present language in the Ordinance is neither vague nor ambiguous and reasonably notifies the public of the conduct it proscribes." Local municipalities still desiring to protect citizens' health, welfare, and peaceable enjoyment of their private property may adopt a "plainly audible" provision, while the courts decide on the inevitable challenges to the P.L. 2011 c. 198 for the favored-class competitive advantages it confers on (as yet undefined) beach bars, and the unequal protection challenges from private residents still subject to noise codes from which bars are exempt. 6 CONCLUSION As stated by the United States Supreme Court: “Condemned to the use of words, we can never expect mathematical certainty from our language.”35 And in some jurisdictions too, it may seem that no amount of language precision can predict with certainty the constitutional muster of a noise regulation. However, not unlike the nuisance ordinance which was the subject of the Supreme Court’s statement referenced above, the plainly audible standard is marked both by flexibility and reasonable breadth and the reasonable precision that is the hallmark of performance based standard as well. The plainly audible standard has been held to be valid in courts at every level in the United States. It is a reasonable, common sense, objective standard with which to regulate disturbing noise. Local governments across the country recognize the ease of enforcement of a plainly audible provision, and the fact that it is an efficient and effective tool in a noise control program. 34 State of New Jersey v. Clarksburg Inn., 375 N.J. Super. 624 (2005). 35 Grayned v. City of Rockford, 408 U.S. 104 (1972). CA Item #4.7 Eric M. Zwerling, M.S., INCE, ASA Director, Rutgers Noise Technical Assistance Center Department of Environmental Sciences 14 College Farm Road New Brunswick, NJ 08901 CA Item #4.7 www.envsci.rutgers.edu/org/rntac Zwerling@envsci.rutgers.edu 732-932-9800 x 6137 Fax: 732-932-8644 SENT VIA EMAIL February 14, 2013 Mayor and Common Council City of Ithaca 108 E. Green Street Ithaca, NY 14850 RE: Course Proposal Community Noise Enforcement Certification City of Ithaca Dear Mayor Myrick and Members of the Common Council: This letter is in response to an inquiry from Councilman Murtagh regarding the options for training enforcement officers from the City of Ithaca through our certification course Community Noise Enforcement. The certification conferred by our course has been recognized in courts throughout New York State. We have had investigators from across New York State attend the course at Rutgers University, while other jurisdictions request an on-site presentation of the course. The fundamentals of noise measurement are the same across all jurisdictions. That said, the regulatory review is geared towards the jurisdiction, so an on-site course in Ithaca would be customized to your code, while the course at Rutgers is geared towards the New Jersey State Noise Code. Regardless of where they attend the three-day certification course, the officers will be fully trained in the techniques, technology and strategies of sound level measurement and reporting for the purpose of enforcing a noise code. We also address nuisance enforcement, including investigative techniques and appropriate testimony. Emphasis will be placed on making the officers comfortable through a series of field exercises. If the course is taught in Ithaca, conducting these field exercises in and around the city will be valuable for the officers. If you desire, we can schedule the course to include Friday night field work so we can practically address entertainment/party noise. The course and course manual for an on-site course will be customized to Ithaca's noise code. Also included will be the following items: use of Rutgers' sound level meters during the course, and course manuals to all attendees. After the course, exams and Noise Measurement Report Forms (the field practical exam) will be graded and returned, along with certificates for those receiving passing grades. This course is offered at Rutgers University on a quarterly basis, and the tuition is $530/person for non-New Jersey governmental agents. The on-site course fee for up to 10 students is $4250. The tuition for additional attendees will be $275 per person for attendees 11-14, $225 for attendees 15- 17.Above that number, the course fee is capped at $6000; I don’t know how many people you need trained. Expenses incurred for an on-site presentation will be additional and include: mileage; meals; and, hotel. The costs outlined above apply if we can simply invoice Ithaca. If you require a formal contract we will have to involve the Rutgers University Office of Research and Sponsored Programs. The contracting process can be lengthy and they will impose an overhead fee. I look forward to the possibility of assisting you in your desire to deliver a better quality of life to the residents of Ithaca. Sincerely, Eric M. Zwerling, M.S., INCE, ASA Director CA Item #4.7 A Local Law to Update the Annual City Budget Process LOCAL LAW No. ____ of 2013 Be it enacted by the Common Council of the City of Ithaca as follows: Section 1. § 4-10 E. of the City of Ithaca Municipal Code is hereby amended as follows: §4-10. Budget legislation and message … E. Review by Common Council or designated committee. (1) The Common Council, or a committee designated by it, shall review the proposed City budget as submitted by the Mayor and shall, not later than the [26th day of October], 31th day of October file with the City Controller its report, including any recommendations proposed therein. (2) Such report shall become a public record in the office of the City Controller. (3) Copies of the same shall be made available by the City Controller for distribution at a charge to be fixed by the Common Council. Section 2. § 4-12 is hereby amended as follows: §4-12 Adoption of Budget A. Common Council action after hearing. (1) After the conclusion of the public hearing and no later than November 15th, the Common Council, at a regular or special meeting, may strike items of appropriation or anticipated revenues from the proposed City budget or reduce items therein, excepting appropriations required by law or for debt service. The Council may add items to or increase items in such budget, provided that such additions or increases are stated separately and distinctly. (2) After the Council has made alterations, if any, to the proposed budget, the Council shall vote upon the question of whether to pass the proposed budget, as amended. (3) If the Common Council fails to pass any budget on or before the 16th day of November, the proposed budget shall be deemed adopted as the City budget for the ensuring fiscal year. (4) "Alteration," as used in § 4-12, means any addition, increase, decrease or deletion. "Deletion," includes striking an item. (5) A "business day," as used in § 4-12, begins at 8:30 a.m. and ends at 4:00 p.m. and includes any day on which City Hall is open to the public for business and does not include holidays recognized by the city, Saturdays or Sundays. B. Return to Mayor. (1) If the budget as passed by the Common Council contains any such alterations, the same shall be presented by the City Clerk to the Mayor not later than two business days after its passage his/her consideration of such alterations. (2) If the Mayor approves all the alterations, he/she shall affix his/her signature to a statement thereof and return the budget and such statement to the City Clerk not later than three business days after presentation by the Clerk. The budget, including the alterations as part thereof, shall then be deemed adopted. C. Mayor's veto. (1) The Mayor may object to any one or more of such alterations and, in such case, shall append to the budget a statement of the alterations to which he/she objects, with the reasons for his/her objection, and shall return the budget with his/her objections to the City Clerk not later than three business days after presentation by the Clerk. (2) The Clerk shall distribute the same to the Common Council no later than two business days after receipt of the same from the Mayor. (3) At a meeting to be held not later than the [20th ] 30th day of November, the Common Council shall proceed to consider, discuss and vote upon the question of whether to approve any or all of the alterations so objected to. (4) If 2/3 of the members of the Common Council, exclusive of the Mayor, vote to approve such alterations, or any of them, the budget with the alterations so approved, together with any alterations not so objected to by the Mayor, shall be deemed adopted. D. Mayor's failure to act. If a budget with alterations is not returned by the Mayor to the City Clerk with his/her objections within three business days after its presentation to the Mayor by the City Clerk pursuant to § 4-12B(1) above, it shall be deemed adopted. E. Common Council's failure to act. If a budget has not been adopted as herein provided on or before the[ 20th] 30th day of November, the proposed executive budget as submitted by the Mayor, plus all alterations to which he/she has failed to object, shall be deemed adopted as the City budget for the ensuing fiscal year. F. Certification of budget. Three copies of the City budget, as adopted, shall be certified by the City Clerk. One such copy shall be filed in the office of the Mayor and one each in the offices of the Controller and the City Clerk. The City budget, as so certified, shall be printed or otherwise reproduced and copies shall be made available at a charge to be fixed by the Common Council. G. Budget Process Checklist. The following table is provided merely as a convenience and if any conflict arises between this table and the text of the Code, the text shall be considered definitive. The Controller shall copy this chart from the Code, indicate on such copy the actual calendar date for each step in the current calendar year, and provide a copy to each department head, the Mayor and each Alderperson on or before the 31st day of March. Editor's Note: The Budget Process Checklist is included at the end of this chapter. Steps in the Budget Process Specified Due Date (latest = no later than) Latest Possible Calendar Date Due In Any Year Budget Checklist Distributed (§ 4-12) latest: March 31 March 31 Capital Projects (§ 4-6) Department, etc. Proposals latest: April 15** April 15 Capital Program Committee Recommendations to Capital Improvements Review Committee (CIRC) latest: May 15 May 15 CIRC Recommendations to the Common Council Budget and Administration (B&A) Committee latest: July 1 July 1 [B&A] CA Recommendations and Findings to the Council First meeting of Council in August August 7 Common Council Guidelines to Mayor latest: September 15 September 15 Department, etc. Estimated Budgets (§ C-40) latest: August 1* August 1 Mayor's Executive Budget (Mayor to Controller) (§ 4-10) latest: October 1 October 1 Mayor's Executive Budget (Controller to Council) (§ 4-10) 3 days after receipt from Mayor October 4 Council's Report (Council to Controller) (§ 4-10) latest: October 2631 October 2631 Notice of Public Hearing Before Council (§ 4-11) latest: November 211 November 211 Public Hearing Before Council (§ 4-11) Not less than 5 days after the notice; regular November meeting November 716 Council's Revision and Adoption (Council to Clerk) (§ 4- 12) hearing date November 716 Council's Revision and Adoption (Clerk to Mayor) (§ 4- 12) 2 business days after passage by Council November 918 Mayor's Response (Mayor to Clerk) (§ 4-12) 3 business days after receipt from Clerk November 1521 Mayor's Response (Clerk to Council) (§ 4-12) 2 bus. days after receipt from Mayor November 1923 Council's Response to Mayor's Response (§ 4-12) latest: November 2030 November 2030 Council Adopts tax levy (§ C-41) latest: first regular meeting in Dec. December 7 *Not earlier than the first day of July. ** The Mayor may set an earlier deadline. Shaded items indicate the default adoption of a budget without action. Section 3. Severability.If any section, sentence, clause or phrase of this law is held invalid or unconstitutional by any court of competent jurisdiction, it shall in no way affect the validity of any remaining portions of this law. Section 4. Effective Date. This Local Law shall take effect after it is filed in the office of the Secretary of State. Common Council Rules of Procedure – Revised September 6, 2006 I. Meetings i.Organization Meeting The Common Council shall meet on the first day of January after the election at the regular place of meeting of the Common Council for the previous year, and thereafter it shall meet at such place as it may choose, within or without the territorial limits of the city but in reasonable proximity thereto, and at times hereinafter provided. ii.Regular Meetings The Common Council shall hold regular meetings at least once each month, on the first Wednesday of the month in Common Council Chambers, Third Floor, City Hall, 108 E. Green Street, unless otherwise specified by Council. iii.Special Meetings The Mayor or any six Council members may call a special meeting of the Common Council by 24 hours' notice, in writing, served personally or by mail upon the other members of the Common Council or by leaving said notice at either their respective usual places of business during business hours or their respective places of abode at other times. In the absence of the Mayor, any three Council members, may call special meetings by 24 hours' notice in the same fashion. iv.Voting 1)In the proceedings of the Common Council, each member present shall have a vote except the Mayor, who shall only have a vote when the votes of the other members are tied, and except as hereinafter provided. 2)A majority of the members of the Common Council shall be a quorum for the transaction of business. If a member abstains from voting, it shall be considered as if that member did not vote. However, a member may only abstain from voting if that member determines that she or he has a conflict of interest regarding the motion being voted upon. 3)A majority vote is required to pass any motion or resolution, except as is hereinafter provided. A vote of six (6) or more Council members shall constitute a majority vote. 4)No tax or assessment shall be ordered except by a concurring vote of a 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. 5)The Common Council may override any mayoral veto by a 2/3 vote of the alderpersons. CA Item #5.1 2 Common Council Rules of Procedures Revised September 6, 2006 v.Collection and Distribution of Materials 1)The City Clerk shall prepare and distribute an agenda to the members of Common Council for each meeting of Common Council at least four days before each meeting 2)Staff designated by the appropriate body shall distribute to the members of Common Council an agenda of the Board of Public Works, Planning and Development Board, Ithaca Landmarks Preservation Commission and Board of Zoning Appeals at least four days before each meeting of said boards. 3)Agendas for each meeting of each Standing Committee of Common Council will be distributed to the members of Common Council by the department responsible for preparing agendas and minutes for said Standing Committee. Agendas shall include all supporting documents, unless a member of Council indicates that they do not wish to receive the documents for a particular committee. 4)Each Chair of a Common Council committee shall present agenda items pertaining to that committee in the appropriate final format to the City Clerk no later than 4:00 p.m. on the Thursday preceding any meeting of the Common Council and give some indication of whether the item is for report or action. Any member of Common Council or the Mayor may present agenda items in the same fashion and by the same deadline to be considered at the following regular meeting of Common Council. 5)The City Clerk shall transfer in memo or email form all referrals or action resolutions from Common Council to the Chair(s) of the involved Council committee(s), lay boards, agencies, and departments. 6)All matters to be brought before Common Council should include sufficient supporting information for Council members to fully understand the resolution to be voted upon. vi.Attendance Emergencies notwithstanding, Council members shall inform the Council or committee chair at least three days ahead of time if they are not able to attend a Common Council or Standing Committee meeting. vii.Length of Meetings Any meeting of either a Standing Committee or Common Council shall end after four hours unless an extension is authorized by a majority vote of said body. CA Item #5.1 3 Common Council Rules of Procedures Revised September 6, 2006 II.Order of Business 1.Pledge of Allegiance 2.Additions To and Deletions From the Agenda 3.Proclamations/Awards 4.Special Orders of Business 5.Special Presentations Before Council 6.Petitions and Hearings of Persons Before Council 7.Privilege of the Floor – Common Council and the Mayor 8.Consent Agenda 9.Reports and Resolutions from Standing Committees 10.Reports of Special Committees 11.New Business 12.Individual Member-Filed Items 13.Mayor’s Appointments 14.Reports of Common Council Liaisons 15.Report of City Clerk 16.Report of City Controller 17.Report of City Attorney 18.Minutes from Previous Meetings 19.Adjournment (1) Pledge of Allegiance The Mayor shall lead all present in the Pledge of Allegiance to the Flag. (2) Additions To and Deletions from the Agenda No legislation may be moved for a vote at a regular meeting of the Common Council without unanimous vote of the members unless it first appeared on the agenda. A matter may be reported to the Council at any time, whether or not it appears on the agenda for that meeting, an item may be withdrawn from the Common Council agenda with the consent of the Mayor and either the sponsoring committee Chair or individual member who brought the item. (3) Proclamations/Awards The Mayor shall announce any proclamations or awards. (4) Special Orders of Business Common Council will consider any agenda items or convene any public hearings deemed of special significance. (5) Special Presentations Before Council It is desirable for the Common Council to hear from boards, commissions, neighborhood associations, representatives from other municipalities or some other group or individual in order to get essential information for the effective maintenance of the City. In this case, the three (3) minute time limit shall not apply. CA Item #5.1 4 Common Council Rules of Procedures Revised September 6, 2006 (6) Petitions and Hearings of Persons Before Council Persons not members of Common Council shall be accorded the privilege of the floor and be permitted to speak for three minutes in regards to matters within the scope of the powers of Common Council. All persons speaking before Council will observe the Rules of Order posted in Common Council Chambers (See Section III (v). a.Petitions and Hearings of Spokespersons Before Council Any provision herein to the contrary notwithstanding, a group of three or four persons wishing to be heard in regards to matters within the scope of the powers of the Common Council may designate a spokesperson to address the Common Council on behalf of said group. Such a spokesperson will be permitted to speak for five minutes. Similarly, a group of five or more may designate a spokesperson to address the Common Council on behalf of said group. Such a spokesperson will be permitted to speak for seven minutes. All persons represented by such a spokesperson must be present at the Common Council meeting, and appear with the speaker in order for the spokesperson to be heard. All spokespersons speaking before Council will observe the Rules of Order posted in Common Council Chambers (See Section III (v)). (7) Privilege of the Floor – Common Council and the Mayor Any member of Common Council or the Mayor shall be accorded the privilege of the floor to speak in response to any person having made comments during the Petitions and Hearing of People Before Council or in regard to any matters pending before the board or any matters of significance to the residents of the city. (8) Consent Agenda The Consent Agenda shall be a listing of all resolutions and appointments that have been designated by the Chairs of the recommending Standing Committees, or by the Mayor, as being routine and not likely to need or require discussion by the Common Council, unless said agenda item requires a formal vote in accordance with state or local law. CA Item #5.1 5 Common Council Rules of Procedures Revised September 6, 2006 The resolutions and appointments listed in the Consent Agenda are voted on as a group by the Council. Any member of the Council may require that any resolution or appointment in the Consent Agenda be instead included separately and individually as part of the business of a Standing Committee or Special Committee. (9) Reports and Resolutions from Standing Committees Reports – The chair of each standing committee shall give a brief oral report of any business of that committee not scheduled for discussion as part of the meeting agenda, followed by an opportunity for other members of the Council to ask questions. Motions and Resolutions – The Committee Chair shall introduce each motion or resolution brought forward from committee by reading the Resolved portions into the record. The Committee Chair need not read the entire resolution. The Committee Chair may synopsize or summarize the issues in the resolution, if so desired. (10) Reports of Special Committees The Chairs of any special committees may give brief oral reports of any business of their committees. Each report shall be followed by an opportunity for other Council members to ask questions. If they have any motions or resolutions, they shall follow the sequence and procedures in No. 9 above. (11) New Business The Mayor may ask Common Council to consider any report or resolution whether or not that report or resolution has been previously reviewed by a Standing Committee. (12) Individual Member-Filed Items Any individual Council member shall introduce any motion, proposed resolution, or proposed ordinance that was submitted to the City Clerk by that individual Council member by 4:00 p.m. on the Thursday preceding the Common Council meeting and which was included in the agenda for that meeting. Any individual Council member may introduce a proposed local law that was submitted to the City Clerk by that individual Council member at least seven calendar days (excluding Sundays) prior to the Common Council meeting, laid upon the tables of all the members of Common Council at least seven days (excluding Sundays) prior to the day of the Common Council meeting and which was included in the agenda for that meeting. Common Council may decide to consider the motion or proposed resolution, ordinance or local law, table it until a future meeting, refer said motion or proposed resolution, ordinance or local law to a Standing or Special Committee, or take any other action it deems appropriate. (13) Mayor’s Appointments The Mayor shall present her or his appointments to Common Council for a vote. CA Item #5.1 6 Common Council Rules of Procedures Revised September 6, 2006 (14) Reports of Common Council Liaisons Any Common Council member may provide a report related to any board, commission or other body to which that Council member is a liaison. (15) Report of City Clerk The City Clerk shall provide a report. (16) Report of City Controller The City Controller shall provide a report. (17) Report of City Attorney The City Attorney shall provide a report. (18) Minutes from Previous Meetings The City Clerk shall present the minutes from previous meetings to Council. In the absence of objection or correction, the minutes stand approved without formal motion. (19) Adjournment Upon completion of the above-listed order of business, the Mayor shall hear a motion to adjourn the meeting. III.Order and Decorum i.The Chair shall preserve order and decorum and shall decide all questions of order, subject to an appeal from the Common Council or Standing Committee. ii.If an appeal is taken from the decision of the Chair, the Chair shall have the right to explain the reason for the decision. The Council or committee shall decide the case without debate, and the question shall be stated by the Clerk or equivalent staff, “Shall the ruling of the Chair be sustained?” The vote shall be taken by roll call and ruling sustained by a majority of the members of Council or Standing Committee. The Mayor does not vote in such an appeal. iii.While the Chair or the Clerk is taking a vote or while a member has the floor and is speaking, no other member shall speak except to raise a point of order or a point of information. iv.No matter concerning the medical, financial, credit or employment history of a particular person, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person shall be discussed by Council in open session, but shall instead be taken up in executive session upon a majority vote of the total membership of Council as provided by Sec. 105 subd. 1 f of the Public Officers Law. In any case, Alderpersons and the Mayor shall be sensitive to the negative impact of public statements criticizing an employee. If the direct subject of the public criticism is the content, implementation, or outcome of a policy, this is not considered to be a criticism of job performance. v.All members of the public who attend meetings of any City board, commission or committee, including public meetings of Common Council, shall act in accordance with the following Rules of Order (as posted in Common Council Chambers): CA Item #5.1 7 Common Council Rules of Procedures Revised September 6, 2006 1)Where public comment is scheduled on the meeting agenda, any member of the public may address the Mayor, Common Council, or a Council Committee in regards to matters within the scope of the powers of Common Council for up to three minutes. 2)Any person may address Common Council or a standing committee of Common Council for up to three minutes during the “Petitions and Hearings of Persons Before Council” or “Public Comment” portion of an official meeting. A speaker will be notified by a timekeeper when her/his time has ended. Neither the Chair, the Mayor, nor any majority vote of the entire body may extend the speaker’s limit. A person may address the body at any point after the “Petitions and Hearings of Persons Before Council” or “Public Comment” portion of the meeting upon invitation by, or permission from, the Mayor, the Chair of the committee or by a majority vote of the body. The provisions of this subsection shall apply to spokespersons, designated per Section II (6)(a), with the exception that the time limit afforded such persons shall be either five or seven minutes, depending on the size of the group the spokesperson represents. 3)Any person who shall desire to speak at a meeting of Common Council, or a Council Committee shall fill out a card stating her or his name, street address, municipality of residence, and the topic upon which they will comment. Any spokesperson, appointed pursuant to Section II (6)(a), who shall desire to speak at a meeting of Common Council, or a Council Committee shall fill out a form stating her or his name, the name, if any, of the group she or he represents, the names of those persons that the spokesperson is designated to represent, and the topic upon which they will comment. If a person identifies himself or herself as a member of such a group, he or she may not exercise the individual right to address council or committee at the same meeting. In completing this card or form each speaker will be affirming that they have read and understand the posted Rules of Conduct. Upon speaking, each person shall verbally state their name, the municipality in which they reside, and the name of the group they represent, if any, for the record. 4)Members of the public addressing the Mayor, Common Council, or a Council Committee shall do so in an orderly manner. 5)No person shall shout, use foul language, throw or slam anything or engage in any other form of disruptive behavior. 6)No member of the public shall approach Common Council members, the Mayor or City staff seated at the Council table, except as detailed in Section III, v. 7, or upon request of the Chair or a majority of the body. 7)Speakers shall give any written materials to the City Clerk or City staff for distribution to Common Council and Committee members. CA Item #5.1 8 Common Council Rules of Procedures Revised September 6, 2006 8)If a member of the public fails to follow the Rules of Order, the Chair shall ask the member of the public to take her or his seat or, if seated, the Chair shall ask the member of the public to cease any behavior in violation of the Rules of Order. 9)If a member of the public fails to sit down after being asked, or continues with outbursts or other behavior prohibited by these Rules of Order while in the audience, the Chair shall ask the member of the public to leave the room. 10)If a member of the public fails to leave the room after being asked or continues with other behavior prohibited by the Rules of Order, the member of the public will be subject to arrest on the charge of Obstructing Governmental Administration. IV.Standing Committees The Mayor shall appoint, at the first meeting of the Common Council in each year Or as soon thereafter as may be, all standing committees required by the rules of the Common Council and all special committees of the Common Council. V. Acting Mayor and Alternate Acting Mayor i.In case the Mayor shall be unable to perform the duties of the Mayor's office in consequence of sickness or absence from the city or if there shall be a vacancy in the office, at the first meeting in each year or as soon thereafter as may be practicable, the Common Council shall appoint by ballot one of its members to preside at the meetings, and the presiding officer thus chosen shall be vested with all the powers and perform all the duties of the Mayor of the city, except as provided in the City Charter § C-33A(1), until the Mayor shall resume the duties of the office or the vacancy shall be filled for the unexpired term by election according to law. The officer so appointed shall be styled "Acting Mayor" and shall sign all necessary papers with his/her name, adding thereto the words "Acting Mayor." 1)The Acting Mayor shall not be vested with the voting powers of the Mayor as described in the City Charter § C-30, but shall instead exercise the voting rights afforded Council members other than the Mayor. ii.The Common Council may in the same manner appoint another of its members as Alternate Acting Mayor, to assume all the powers and perform all the duties of the Mayor of the city in the same manner and fashion as the Acting Mayor whenever the Acting Mayor is required to assume the powers and duties of the Mayor's office but is unable to do so in consequence of sickness or absence from the city. VI.Receipt of Reports i.The Common Council may vote to ACCEPT in whole or in part the report of any person, consultant, committee, task force, or other group. Acceptance is hereby defined to mean that the Common Council acknowledges receipt of the report and thanks its author for it. ii.The Common Council may vote to ENDORSE any such report in whole or in part. Endorsement is hereby defined to mean that the Common Council acknowledges receipt of the report, thanks its author for it, and concurs in its findings and/or recommendations. CA Item #5.1 9 Common Council Rules of Procedures Revised September 6, 2006 iii.The Common Council may vote to ADOPT any such report in whole or in part. Adoption is hereby defined to mean that the Common Council acknowledges receipt of the report, thanks its author for it, and formally commits itself to implementing its recommendations. iv.The Common Council may vote to REJECT any such report in whole or in part. This may be done either by voting down an acceptance or an adoption resolution, or by passage of a resolution of rejection. Such a resolution means that while the Common Council has received the report, it finds it unsatisfactory and/or does not choose to implement its findings. VII.Rules of Procedure In any matter of procedure not governed by these rules, the Common Council shall be governed by Robert’s Rules of Order. VIII.Amendment and Suspension of the Rules i.These rules shall not be altered or amended except by two-thirds vote of the entire Common Council, and then only after at least one week’s notice accompanied by a written or printed copy of the proposed alteration or amendment. ii.These rules may be temporarily suspended by a two-thirds vote of the Common Council. IX.Communications between Council Members and Staff i.Council members who need information from City staff to assist them in developing policy or in responding to a request from a constituent, shall transmit information requests to the department head or directly to the department staff. ii.Whenever Council members seek information directly from departmental staff, the following procedures should be pursued since individual Council members do not supervise staff nor do they establish or change programs. 1)If the information request is more than minimal in terms of staff time required, the Council member should direct the inquiries to the Mayor or the chair of the committee to which the department reports. If the Mayor or the committee chair declines to authorize the request, an appeal may be made to the appropriate committee; and if that fails, to the whole Council. iii.A Council member should never attempt to influence the conduct of a staff person on the job. Any concerns that a Council member has about a staff person’s conduct on the job or job performance should be directed to the Department Head, the Mayor, the Human Resources Director or the appropriate committee. 1)In the event that any Council member does so attempt to influence the conduct of a City staff member on the job, the staff person should bring this to the attention of the department head who will in turn notify the Human Resources Director, the Mayor and the Chair of the committee to which the department reports. CA Item #5.1 10 Common Council Rules of Procedures Revised September 6, 2006 X. Budget Review Meetings. i.After receiving the Mayor’s proposed budget, the Common Council shall conduct a committee meeting (or series of committee meetings) for the purpose of reviewing the proposed budget, receiving presentations from City departments and agencies and affected City-sponsored programs, considering possible modifications to the Mayor’s budget, conducting two or more public hearings on the budget (in addition to the public hearing required at the regular Common Council meeting in November), and recommending a proposed budget to be voted upon by the Common Council at a regular or special Common Council meeting. ii.The afore-mentioned budget review meetings shall be considered to be Committee of the Whole (COTW) meetings and shall be subject to the following procedural rules: a.The COTW shall consist of the full membership of Common Council, including the Mayor. b.These COTW meetings shall be organized by the committee of Common Council charged with budget and finance matters (i.e., the City Administration Committee or whichever successor committee is responsible for budget and finance matters). c.A quorum for purposes of conducting business shall be a simple majority of the whole membership of Common Council, i.e., six members, and the Mayor shall not count toward said quorum. d.The Mayor shall not be entitled to vote except to break a 5-5 tie in the vote of the other members of the COTW. e.The budget review COTW meetings shall be chaired by the chairperson of the committee of Common Council that is charged with budget and finance matters (i.e., the City Administration Committee or whichever successor committee is responsible for budget and finance matters). f.All budget review COTW meetings are subject to the Open Meetings Law, and are, therefore, open to the public and require advance notice as provided by law. However, with the exception of those COTW meetings, which are specifically designated as “public hearings,” members of the public shall not be entitled to make public comment at the COTW meetings, unless the COTW decides otherwise by majority vote. For those COTW meetings that are specifically designated as “public hearings,” or at any other COTW meeting where the public has been permitted to CA Item #5.1 11 Common Council Rules of Procedures Revised September 6, 2006 comment, the same rules as to public comment which are applicable to regular Common Council meetings or other Council committee meetings shall apply. g.At the first meeting in any year of the budget review COTW, the Mayor’s proposed budget shall be moved (and seconded) for recommended approval by Common Council, for the sake of discussion and possible amendment. Thereafter, including at subsequent COTW meetings, the chair shall entertain proposed amendments to the Mayor’s budget, with regard to any line or amount therein, which proposed amendment shall require a second in order to be considered. For passage by the COTW, any such amendment shall require the affirmative vote of at least six of those COTW members present. Following the consideration of all proposed amendments, the COTW shall vote on a recommendation, to Common Council, of a proposed budget, including any amendments which have been acted upon affirmatively by the COTW. If for any reason the COTW is unable to make such a recommendation, then the Mayor’s proposed budget shall be moved for discussion at a Common Council meeting following the completion of the scheduled budget review COTW meetings. h.Except as otherwise provided for herein, the meetings of the budget review COTW shall be governed by Robert’s Rules of Order. iii.Nothing herein is intended to restrict the ability of the Common Council to amend the proposed budget at a Common Council meeting, prior to its adoption. CA Item #5.1