City of Ithaca code enforcement operates in the shadows

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The City of Ithaca just sent me a 3-page excerpt from a New York State Variance document* related to Cornell’s Fine Arts Library proposal (links to all my writings and blog posts on this subject can be found here). This was in response to a Freedom of Information Law (FOIL) request that I had made on March 8, 2017. No records of any meetings or correspondence related to this project were provided, even though City officials attended numerous meetings with Cornell staff, provided specific fire-safety recommendations to them, and even wrote a letter stating that Cornell’s proposal was “acceptable.” That there is no City of Ithaca paper trail for this project—violating the spirit, if not the letter, of the FOIL legislation—did not surprise me, since I had the same experience with the earlier Milstein Hall project at Cornell. Nevertheless, I sent the following email to the City of Ithaca, asking that they investigate how it is possible that no records of meetings and correspondence exist for the Fine Arts Library proposal:

From: Jonathan Ochshorn
Date: Friday, April 28, 2017 at 10:26 AM
To: “foil@cityofithaca.org” <foil@cityofithaca.org>
Subject: Re: Your FOIL Request has been granted – ID 20170263

RE: ID 20170263

Thank you for sending a 3-page excerpt including the decision rendered by the Capital Region – Syracuse Board of Review for petition 2015-0432. However, I had requested “all documents, including records of meetings or phone conversations, related to the proposed Fine Arts Library in Rand Hall at Cornell University (863-883 University Ave., Ithaca, NY 14850) beginning in Jan. 2014 and continuing up to the present date…”

How is it possible that there is no documentation of meetings attended by representatives from the City of Ithaca in connection with this project, or even of a letter written by the City that was specifically mentioned in the transcript of that hearing?

Are important records being destroyed or deleted by the City, or are records of meetings—in which City officials make important life-safety recommendations to Cornell—either not made, or not maintained? Either way, this seems like a serious ethical and legal problem, and I ask that you investigate why letters written by and meetings attended by Mike Niechwiadowicz, City of Ithaca Director of Code Enforcement—including those that were specifically cited in the transcript of the hearing for petition 2015-0432—are not being provided under the Freedom of Information Law.

The New York State Committee on Open Government states: “All records are subject to the FOIL, and the law defines ‘record’ as ‘any information kept, held, filed, produced or reproduced by, with or for an agency… in any physical form whatsoever. . .’” Please investigate whether the Freedom of Information requirements are being faithfully executed by City of Ithaca agencies, that is, whether key records are being willfully deleted, or—even more troubling—whether meetings are being attended and key decisions are being made and communicated to outside parties (like Cornell University) without any record-keeping at all.

Following are excerpts from the Hearing transcript (petition 2015-0432), attended by Mr. Niechwiadowicz, that provide evidence of letters and meetings for which no documentation seems to be available. Key passages are highlighted.

Mike Niechwiadowicz, Director of Code Enforcement for the City of Ithaca, provided the following testimony at the 2016 Variance Hearing in Syracuse: “…I’m the one that made the determination that the levels 2 and above resulted in three stories as opposed to two stories. And the reason being is that per Building Code section 505.2.1, a mezzanine is limited to one-third of the area — of the floor area of the room or space containing the mezzanine or mezzanines.”

Question from the Hearing Board about why the 2015 Hearing didn’t catch the mezzanine assumption error: “So we didn’t catch it in 2015?”
Response from Cornell’s code consultant Deruyscher: “No, it was discussed at that point that it looked like, and our determination and our discussion was that it looked that way. The City did go through, and this is a very fine, I want everybody to understand, it’s a very fine detail of exactly how those measurements are done. We had an opinion, that we met the code. The City said, not sure. It went to a number of different people, and I guess I would let the City talk about that specific item if there was a question.”

Question: “There was mention in the analysis that there was a letter from the City [of Ithaca] that everything was acceptable. I didn’t see that in my packet. Is that still the case, is that in the record?

Mike Niechwiadowicz: “I can address that, it unfortunately didn’t get to the packet, however, let me get into slightly more detail… So we’ve been involved in cooperatively working with Cornell and the designers, so we’re very aware of what’s going on here.”

Yours truly,

Jonathan Ochshorn

* I had already received complete records of the 2015 and 2016 Code variance hearings related to the Fine Arts Library through a FOIL request to New York State, and I placed these variance documents online (scroll down to the bottom of this document).

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