HomeMy WebLinkAboutMN-G&IMR-2006-06-26 GOVERNANCE AND INTERMUNICIPAL RELATIONS COMMITTEE PROCEEDINGS
Regular Meeting June 26, 2006 7:00 p.m.
PRESENT:
Chair Joel Zumoff
Alderpersons (3) David Gelinas, Shane Seger, Mary Tomlan
OTHERS PRESENT:
City Attorney— Daniel Hoffman
Information Management Specialist - Cindie Day
Mayor Carolyn Peterson
Alderperson J.R. Clairborne
EXCUSED:
Alderperson Michelle Berry
ADDITIONS TO OR DELETIONS FROM THE AGENDA:
Alderperson Zumoff requested the addition of Item: 11 - Report from the City Attorney's
Office
APPROVAL OF MINUTES:
By Alderperson Seger: Seconded by: Alderperson Gelinas
RESOLVED, That the Minutes of the May 22, 2006 meeting be approved as published.
Carried Unanimously
ANNOUNCEMENTS AND REPORTS FROM COMMITTEE MEMBERS:
Alderperson Seger reported that the Rental Housing Advisory Commission (RHAC)
would be reviewing the Exterior Property Maintenance Ordinance over the next two
months. The public can bring forth concerns for the commission to review. The RHAC
meets the third Wednesday of the month at 5:15 p.m. in City Hall.
RESOLUTION TO CHANGE COMMON COUNCIL RULES OF PROCEDURE TO
CLARIFY THE PROCEDURE FOR SUBMISSION OF MEMBER-FILED ITEMS.
Amendment of Common Council Rules of Procedure - Resolution
By Alderperson Zumoff: Seconded by: Alderperson Tomlan
WHEREAS, Section II, paragraph 12 of Common Council's Rules of Procedure adopted
on March 3, 2004 concerns the filing of member filed resolutions, and
WHEREAS, the specific wording of Section II, paragraph 12 as subsequently
interpreted by the City Attorney's office does not convey the original intent of Common
Council, now, therefore, be it
RESOLVED, That the Rules of Procedure adopted by Common Council on March 3,
2004 are hereby amended as follows:
•
June 26, 2006
Section II, Order of Business, list of paragraphs, line 12, is amended to read as follows:
12. Individual Member-Filed Items
Section II, paragraph 12, is amended to read as follows:
(12) Individual Member-Filed Items
Any individual Council member may introduce any motion, proposed resolution, or
proposed ordinance that was submitted to the City Clerk by that individual Council
member by 4:00 pm 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.
Discussion followed on the floor regarding the intent of committees having to do the
groundwork for proposed legislation while the full Common Council has the power to
adopt the legislation or to send it back to the committee for further review.
The vote on the resolution resulted as follows:
Carried Unanimously
An Ordinance to Amend Chapter 137 of the City of Ithaca Municipal Code Entitled
"Bicycles" to Specify Punishment as a Civil Offense.
By Alderperson Zumoff: Seconded by: Alderperson Gelinas
ORDINANCE NO. 06-
6E IT ORDAINED AND ENACTED by the Common Council of the City of Ithaca as
follows:
Section 1.
PENALTY. Chapter 137-1 of the City of Ithaca Municipal Code Entitled "Bicycles" is
hereby amended to add the following language:
Any violation of the provisions of this law constitutes a Civil Offense punishable in
accordance with Section 1-1 of the City of Ithaca Municipal Code.
2
June 26, 2006
Section 2.
EFFECTIVE DATE. This Ordinance shall take effect immediately and in accordance
with law upon publication of notice as provided in the Ithaca City Charter.
Carried Unanimously
A Local Law to Amend Chapter 164 of the City of Ithaca Municipal Code Entitled
"Dogs and Other Animals" to Specify Punishment as a Civil Offense.
By Alderperson Zumoff: Seconded by Alderperson Gelinas
LOCAL LAW NO. 06-
BE IT ORDAINED AND ENACTED by the Common Council of the City of Ithaca as
follows:
Section 1.
PENALTY. Chapter 164 of the City of Ithaca Municipal Code Entitled "Dogs and Other
Animals" is hereby amended to replace chapter 164-17 in its entirety with the following:
164-17. Penalties for Offenses.
Except as provided in the Agriculture and Market Law, a violation of this article
constitutes a Civil Offense punishable in accordance with Section 1.1 of the City of
Ithaca Municipal Code. These penalties shall be in addition to any other penalties
provided by law.
Section 2.
EFFECTIVE DATE. This Ordinance shall take effect immediately and in accordance
with law upon publication of notice as provided in the Ithaca City Charter.
Discussion followed on the floor regarding the requirement that the City Clerk's Office
lay the Local Law on the table 7 days prior to the Common Council meeting.
A vote on the Local Law resulted as follows:
Carried Unanimously
CONTINUED DISCUSSION OF THE EXTERIOR PROPERTY MAINTENANCE
ORDINANCE, IN PARTICULAR, CHAPTER 178-3(C) WITH RESPECT TO THE
SCAVENGER DAYS PROVISIONS.
Discussion was held on the floor regarding different ideas for residents to put out
useable items on the streets for others to take. It was noted that public awareness of
and compliance with these types of programs is challenging. Alderperson Seger said
the Rental Housing Advisory Commission would compile the information over the next 2
months and bring back the consensus for the committee to review. The City Clerk's
Office was requested to obtain other exterior maintenance ordinances from other
municipalities for comparison purposes. Further discussion will continue after the new
information has been compiled.
3
June 26, 2006
ATTORNEY'S OFFICE INFORMAL REPORT:
City Attorney Hoffman distributed and discussed the following quarterly report of the
City Attorney's Office activities:
Summary of Current & Ongoing Work
1. Interns: 3 for summer
2. Meeting, Trainings
3. FOIL requests (approx. 4-5 week)
4. Legislation & Policies under review
a. Taxicabs
b. Noise
c. Junk & Second-Hand Dealers
d. Transient Merchants
e. Residency Requirement
f. Council procedures
g. Zoning Ordinance
i. U-1 (parking requirement, etc)
ii. PUD
h. PROTOCOLS:
i. Vehicle Use policy
ii. Cyber Security Notification
iii. License fees
iv. Handling of Notices of Claim
5. Current & Ongoing Issues (not including litigation)
a. Real property
i. Encroachments, easements, licenses, leases
ii. Land acquisition (Six Mile Creek area)
b. Personnel
i. Union contracts
1. Firefighters: expired 12/31/05
2. CSEA: expires 12/31/06
3. CSEA Exec: expires 12/31/06
ii. Grievances, arbitration
iii. Section 207 claims
c. Other (not necessarily all)
i. Cayuga Green
1. Green Garage (& Center Ithaca, others)
2. Bloomfield & Schoen project
3. Use & status of parking garages
ii. Cayuga Waterfront Trail (possible eminent domain)
iii. Stewart Park boathouse (use by organizations)
iv. University Avenue (Cornell request)
v. Drop-in Children's Center (new lot, amended lease)
vi. RIBs (lease of City property)
vii. Ithaca Falls escrow fund
4
June 26, 2006
6. Other Contracts (expired and/or under negotiation)
a. City/County (GIS)
b. City/Court (911 Center)
c. City/Court (parking for jurors)
d. City/Town of Ithaca (Use of Cass Park pool, etc)
e. City/IURA (Creek Walk)
f. City/Ithaca Downtown Partnership (responsibility for sidewalks, etc)
7. Notices of Claim (response pending from insurance carrier)
a. Cascadilla Creek Wall collapse
b. Restriction on plumbing materials
8. Lawsuits & other complaints
a. Handled by insurance carrier (most personal or property injury)
b. Handled by our office (except where noted):
i. Personnel:
1. Wright v City (overtime)
2. Stern v. City (right to arbitration, etc)
ii. Eminent Domain:
1. Ithaca Joint Venture (Elmira Rd widening)
2. Goldberg (land beneath Green Garage)—special counsel
iii. Other Article 78:
1. Varrichio, er al v. BZA (variance)
2. Cascade/Ciminelli v. City (contract for parking garage
use)
iv. Human Rights (complaint):
1. Miller v. City (reverse discrimination claim)
ADJOURNMENT:
On a motion the meeting adjourned at 8:10 p.m.
Lt-0 CL,-C. c Uc
Cindie L. Day oel Zumoff
Information Management Specialist Chair
5
' CITY OF ITHACA
iErNrcid_w] 108 East Green Street Ithaca, New York 14850-5690
. I FTT1_TTTI
OFFICE OF THE CITY ATTORNEY
42111 9. Daniel L.Hoffman,City Attorney Telephone: 607/274-6504
Patricia Dunn,Assistant City Attorney Fax: 607/274-6507
Robert A. Sarachan,Assistant City Attorney
Khandikile M.Sokoni,Assistant City Attorney
Dawn M.L.Tordel,Legal Assistant
MEMORANDUM
J `
To: Mao K. Peterson JUL 2 O 206 j
From: Robert A. Sarachan, Asst. City Attorney
Date: July 19, 2006
Legal Opinion Regarding Admissibility of Decibel Evidence in New York
Issue: Are readings from a decibel meter admissible at trial?
Short Answer: Readings from a certified decibel meter obtained by a trained person following
the proper procedure, 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 Err] 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:
"An Equal Opportunity Employer with a commitment to workforce diversification." i�
Memo to Mayor Carolyn K. Peterson
July 19, 2006
Page 2
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 decibel meter(DM), CLB Code §16-12 states:
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 ordinance,this requirement is met with a two-day initial training in the CLB
with periodic (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 the City's existing noise ordinance would be
appropriate. That would result in two different noise causes of action being available in many
situations -the"general"noise standard 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).
Cc: H. Matthys VanCort, Director of Planning & Development
Jennifer Kusznir, Planner
Chief Lauren Signer
William J. Gray, Superintendent of Public Works✓
Steven Thayer, Controller
Joel Zumoff, Chair, Governance & Intermunicipal Relations Committee
J:\Sarachan-CA 7-06\decibel meter admissability legal opinLloc