Appeal of the City of Ithaca’s denial of Occupy Ithaca’s Request to Use City Park

22 Dec
The City of Ithaca’s denial of Occupy Ithaca’s Request to Use City Park for the use of Dewitt Park by Occupy Ithaca was arbitrary and capricious, and deprived the applicant of its rights to due process and equal protection under the Constitution of the United States.
The City failed to follow its well-established procedures for dealing with an application of the type submitted by Occupy Ithaca. When an applicant submits paperwork which requires the approval of three or more City agencies, a City of Ithaca practice, policy, procedure, and/or promulgated rules and regulations specify that an events team shall be assembled to liaise and work with the applicant.
Occupy Ithaca’s application to use a City Park required the approval of the City of Ithaca’s Superintendent of Public Works, and, according to the denial letter, the City of Ithaca Building Department and the City of Ithaca Fire Department. Thus, the City of Ithaca should have assembled an events team to process the permit, and not left it to just the Superintendent of Public Works to decide all by himself. By having just the Superintendent of Public Works rule on the permit, the City of Ithaca deprived the applicant of its rights to due process and equal protection under the law as guaranteed by Constitution of the United States.
When reviewing event permits the City of Ithaca’s practice, policy, procedure, and/or promulgated rules is not to simply accept or reject applications. With other applications, the city staff works with the applicant and helps the applicant adjust their event so that it does not overly conflict with the needs of other citizens. This is especially the case with a special events team project. While the events teams have helped an applicant modify their events, we are not aware of a single instance where a permit was denied. Instead, City staff offers alternatives to problematic aspects of the event. It is unprecedented for the City of Ithaca to simply deny an application before trying to work with the applicant.
Specific responses to the specific points in the denial letter:
  1. The City of Ithaca denial letter states that “Allowing tents to be in place for extended time would tend to interfere with the public’s right to use of a substantial portion of the park, …”. This language is far to vague for anyone to understand what is acceptable and what is not. The city is not stating that the intended use will interfere with the public’s right to use the park, but that “would tend “, in other words, “it might” stretch into such a situation. The city needs to judge the application on what the applicant intends on doing, not on what if might become. If the city has concerns on a direction the event might take it should stipulate in the permit that such a direction is impermissible.
    Further, the term “substantial” is not defined. How much of the park could the encampment occupy before it became “substantial?” This answer has to be based on some policy, law or rule, not the arbitrary opinion of the Superintendent of Public Works and/or the City Attorney.
    Nor, given the fact that the public is openly invited to be a part of all aspects of Occupy Ithaca’s event, does the city specify what specific use the park the public is not being allowed to use. The deed of the Dewitt Park to the City of Ithaca requires that the park be open as “a public walk and promenade.” At all times the walkways are clear for public use, so the main use of the park is not in any way impeded. Since the main use of Dewitt park remains unchanged, it is unclear the public’s use of the park has been “substantially” altered.
  1. The City of Ithaca denial letter states that “ Keeping tents in place and heavy use thus engendered is damaging the lawn.” Anyone who is familiar with the area in question is well aware that there is virtually no grass in the area where the tents are; which is why the applicant chose that spot for the tents in the first place. Further, the city could simply require that the tents be moved every few days to allow whatever grass is actually growing access to sunlight. These issues are typically dealt with by modifying the permit application, not for denying a permit.
  2. The City of Ithaca denial letter argues in point #1 that the public is being deprived us use of the park by this activity and in point #2 that the park is not capable of handing the number of people that the Occupy Ithaca event would bring to the park in point #2. The City of Ithaca needs to decide whether its decision to deny is based on too much use of the park or not enough.
  3. The City of Ithaca denial letter states that “Park use is not allowed between 10 pm and 5 am (without a special waver).” The applicant is well aware of this rule, and specifically asked for such a waver in the permit application: “We request to exercise our first amendment rights after 10 pm -waiver of park curfew”. The city has granted such a waver in the past to Ithaca Festival, allowing both tents and Ithaca Festival personnel in the park throughout the night. The City of Ithaca simply reiterated the rule, including a statement that wavers are granted to the rule, without giving any specific reasons why it was not granting Occupy Ithaca a waver. The City of Ithaca denial letter does not indicate that the City of Ithaca’s Superintendent of Public Works even considered the waiver request at all.
  4. The City of Ithaca denial letter asserts that “Chapter 336 requires any permittee to provide proof of liability insurance”. Actually, the code states:
    (1) General liability insurance shall be required in an amount to be determined by the issuing agent for activities that include any of the following:
(a) A risk that participants or attendees could be injured based on the nature of the activity.
(b) Sale or consumption of alcoholic beverages.
(c) Potential damage to City property.”
The city failed to show that any of these points apply to the applicant. It cannot assert the need for insurance without showing that the event will fall into one of the three above categories and specifying what insurance is necessary to indemnify the city.
  1. The City of Ithaca denial letter asserts that “Camping is not a permitted use in the city, per zoning ordinance.” The city failed to cite specifically in city code where camping is prohibited in the city. “Tents” are not specifically mentioned anywhere in the zoning law. The only reference to “camping” is to “camping trailers,” a use the applicant has not asked for. It is not a prohibited use under chapter “336 Use of parks; permit application; general liability insurance,” making it unclear where this “park specific, no camping” rule comes from or if it actually exist at all. Further, the city knowingly allows camping within the city. City officials are well aware that there is an ongoing campground behind Wegmans, commonly known as “the jungle”. Additionally, City officials are aware that twice a year people set up tents on city sidewalks on Esty Street to be in line for for the Friends of the Library Sale. Not only has the city failed to cite a specific prohibition it also fails to explain why it is selectively enforcing the “prohibition” on camping to Occupy Ithaca and not these other groups.
  2. The City of Ithaca denial letter asserts that “Residential facilitates are not a permitted use in parks.” First, it is unclear where this prohibition is, as Chapter 336 is silent about residential facilities. Second, the application did not request residential facilities.
  3. The City of Ithaca denial letter states that “Residential use requires appropriate sanitary facilities.” All events that have large numbers of people over extended time periods require sanitary facilities. No other group’s permit application has been denied as a result of this need. The City of Ithaca has made no effort, as it has with other applicants, to determine what faculties are necessary. Currently, nearby residents have opened their buildings so people can use their bathrooms. Occupy Ithaca is interested in establishing a location for a port-a-potty and is willing to work with the city on a suitable location. Questions such as this one is why the city assembles and event team, to gather the knowledge of different departments to figure out the best solutions to such problems.
  4. The City of Ithaca denial letter states that “Large tents require building or fire department approval.” Again, this is not a reason to turn down this application. When other applications are deemed to need multiple permits, a special team is established to deal with all the permits together. The City of Ithaca needs to treat Occupy Ithaca’s permit the same way it treats other applications.
  5. The City of Ithaca denial letter states that “Allowing the requested ‘occupation,’ especially for an extended period of time, is not consistent with maintaining the park as primarily ‘a contemplative space in keeping with [the park’s] function as a veterans’ memorial and a common space for several churches.’ and as a ‘quiet use park.’” The city has no established criteria to determine if an event is consistent with maintaining the park as primarily ‘a contemplative space. The city inconsistently applies this standard from one group to the next. Thus, Ithaca Festival is allowed to set up a stage with a sound system and the city determined that it was consistent with a “quiet use park”. Yet when Occupy Ithaca requests a permit for an event with no sound system, it is told that it is inconsistent.
  6. The City of Ithaca denial letter asserts that “City has not allowed individuals or groups to be in the Park during closed hours.” This statement is simply false. The City has allowed Ithaca Festival access to the park 24 hours a day when it is holding an event in the park.
  7. The City of Ithaca denial letter states that “City has not allowed tents to be maintained in the Park, and has only allowed canopies for more than two or three days (and only as part of a participatory festival).” Again, the city has no criteria for what is acceptable use or not. The two or three day limit only appeared when Occupy Ithaca made its application. The city cannot create a rule just because it does not like an application (Assuming this rule actually exists at all, see #6 above).
  8. The City of Ithaca denial letter states that “Parkland continuously ‘occupied’ by a certain group (or physical structures), for non-recreational purposes and for weeks, prevents or interferes with its use by the public at large.” The city’s statement here implies that if the application were for recreations purposes, it would be ok. The city is implicitly stating that the fact that the applicant wants to exercise their first amendment rights to free speech is a reason for the denial, if they were only asking for a permit to recreate, their application would be fine.
    Further, other cities in New York have had no such problems issuing permits to similar occupation groups. Both the City of Rochester and the City of Buffalo have permits for Occupy groups to use parkland within their boundaries for long term occupation. Both permits have specific language that requires the group to keep space open for the public at large. The Buffalo permit further requires the Occupy group to vacate the park when another groups wants to hold a larger event in the park. City of Ithaca officials are well aware of these other agreements.
  9. The City of Ithaca denial letter states that “I am told that there have been repeated instances of loud drumming at the encampment indicating an inability on the part of the applicant to comply with the ‘quiet use’ expectation.” There was one incident of drumming in the middle of the afternoon. When the applicant was told this was a problem, the drumming ceased, and has not been repeated. Again, the permit could have specifically stated that drumming is not allowed, if such activity was of concern to the City of Ithaca officals.
  10. The City of Ithaca denial letter states that “I note for the record that neither permit application was submitted in advance of your group’s commencement of use of the park (for tents, etc), which is a requirement.” We note for the record, that this was understood by the City of Ithaca when the Mayor specifically asked the group to fill out an application. To add this as a grounds for denial indicates that the City of Ithaca officials did not process this application in good faith.
We Herby ask the Board of Public Works to overturn William J. Gray’s denial of our application. We further ask that the Board to direct the City of Ithaca to treat Occupy Ithaca as it does other applicants, and convene a Special Events Task Force to work with the Occupy Ithaca organization to create an event that conveys Occupy Ithaca’s message to the public it wishes to reach.
—————————
Phillip Price (Occupy Ithaca)
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