Four New York State Appellate Court justices heard oral arguments Feb. 2 for the appeal of Edgemont’s second incorporation petition. The justices’ eventual decision could spell a new chapter for proponents and opponents of incorporation, who have been embattled over the hamlet’s ability to hold a referendum.
The appeal follows Westchester Supreme Court Judge Susan Cacace’s ruling in May which sided with the Edgemont Incorporation Committee’s (EIC) Article 78 filing and overturned Greenburgh Town Supervisor Paul Feiner’s ruling that Edgemont’s petition for incorporation didn’t meet the standards set out in New York State law to become Greenburgh’s seventh village.
Feiner appealed the lower court’s ruling and the incorporation matter was expedited to the Appellate division, which previously ruled against the EIC in 2018 during the group’s first attempt at a petition. None of the justices who will rule on the sufficiency of Edgemont’s second incorporation petition were present during the first petition denial in 2018.
Robert Spolzino, a former New York State Supreme Court Justice and partner at Abrams and Fensterman, who also represented Feiner during the 2017 incorporation fight, argued that Feiner’s denial of the petition was not illegal, as the petition’s list of regular inhabitants (LORI) wasn’t attached to the petition when it was circulated for signatures. They also argued that the petition’s signatures were stale and that the LORI didn’t include the names and addresses of children, and they argued the description of Greenville Fire District as the boundary for a village of Edgemont was not a proper metes and bounds description.
Justice Mark Dillon questioned Spolzino, asking whether the village law referenced the sequence of documents at the time the petition was presented or if it referenced the sequence of documents at the time when signatures were obtained.
Spolzino said the statute didn’t “say either way” but submitted that the language conferred that the process didn’t start with the filing of the petition, but rather the petition itself.
William Greenawalt, a lawyer representing five of the petition’s objectors, said according to case law, all the lists including the LORI needed to be submitted with the petition.
Jim Hallowell, an Edgemont resident and partner at Gibson, Dunn & Crutcher who represented the incorporation petitioners, said it was their position that the LORI didn’t need to be circulated at the time when signatures were obtained and only needed to be filed with the town supervisor.
“The contents of the petition do not include the exhibits to the petition and the list of regular inhabitants is an exhibit to the petition,” said Hallowell.
Dillon considered whether there was a practical problem with when the LORI was attached to the petition, as while the petition was circulating, people would be moving in and out of the proposed village.
Spolzino said a few people moving in or out or dying while the petition was circulating wasn’t the issue, but rather the issue was that the bulk of the signatures were collected in 2017. As state law doesn’t set a timeframe for when signatures need to be collected, Spolzino, referencing case law, said the court had to apply a reasonableness standard for how long the signatures could be used for the petition.
“In this case, the supervisor applied a rule of reason … as this court said had to be done and said two years was unreasonable given things that had gone on in the community,” argued Spolzino.
Justice Paul Wooten said since there was no statutory requirement, the court could provide the reasonableness standard for the signatures as well as whether or not the list should be attached to the petition at the time it’s circulated. Spolzino said he agreed with the court being allowed to decide the rule of reasonableness for the signatures, but didn’t agree that the court could apply the same rule to when the LORI needed to be attached.
On the LORI not including the names of minors, Justice Leonard Austin asked why the rule of reason didn’t apply to that situation. Spolzino said the rule of reason was applied in previous case law because there wasn’t a provision in the statute governing the issue.
“The court has to apply the statute as it’s written. If it’s going to be changed it’s up to the legislature,” said Spolzino. “It’s not up to the court.”
Hallowell said the village law placed the burden of proof on the objectors and that the “staleness of signatures” was not included on the grounds enumerated in the village law.
“We would submit that the supervisor going through deciding what issues have happened in the town that might change circumstances and [his] seeking to reject signatures because he doesn’t think a particular signer really meant it when they signed the petition for incorporation is inconsistent with the ministerial and neutral role that a town supervisor should have in reviewing incorporation petitions,” said Hallowell.
Edgemont resident and incorporation objector Hugh Schwartz, who proceeded pro se in oral arguments, argued that the petitioners didn’t pursue other alternatives for fulfilling the LORI requirements that children be included, such as asking the town supervisor to seal the names and addresses of minors, or introducing legislation in Albany to redefine the term “regular inhabitants.”
Because the petition needs to be publicly available under village law, Hallowell said the names of children couldn’t have been submitted under seal.
Referencing his experience as a marketing professional, Schwartz said the petitioners didn’t make a reasonable effort to collect the names for the LORI.
Hallowell pushed back on the argument and said the LORI had been prepared over a number of months and used “any reasonable source that could possibly have been obtained.”
The justices were also very focused on the metes and bounds description of the proposed territory to be incorporated.
On the longstanding territorial dispute between the Hartsdale Fire District and the Greenville Fire District, Schwartz said the dispute was “extremely relevant” and “critically important” in the case.
Greenawalt said that although the boundary dispute hadn’t been litigated, there was a longstanding disagreement over the fire districts’ boundaries.
“From the first petition that was rejected by this court the results are essentially the same. There’s been no change from that to this petition,” said Greenawalt. “They said the boundaries are exactly the same … and everything else is pretty much the same. So, they admit the boundaries that are in this petition are the same as they were.”
Hallowell said the description of the territory to be incorporation was attached to the petition and was circulated to all the signatories and was different from the description which was included in the first petition.
Unlike the first petition, the second petition only outlines the Greenville Fire District as decided by the Westchester County Board of Supervisors in 1923 as the official territory to be incorporated. The first petition also included references to an 1899 map, which Hallowell said was removed because Feiner deemed the references to the map “confusing.”
“Other than removing references to that map and other … extraneous references to the school district, the description of the territory here is an exact metes and bounds description of the Greenville Fire Department,” said Hallowell.
When asked by Dillon whether the 1899 map could be divorced from the 1923 resolution, Hallowell said the 1923 resolution set out the metes and bounds and didn’t state that the areas were coterminous or that the metes and bounds description of the Greenville Fire District is dependent on the 1899 map.
Even though there may be overlaps between the Greenville and Hartsdale fire districts, Hallowell said the overlaps didn’t change the definition of the Greenville Fire District.
“The Greenville Fire District has existed since 1923 and since 1923 it has held annual elections for its fire commissioners. Those elections, just like an election on village incorporation, have managed to go forward without incident,” said Hallowell. “Reference to one or two overlapping parcels hasn’t stopped that election and it shouldn’t stop the election that petitioners seek here.”
Schwartz told the Inquirer that similar to the last petition, this case was “a jump ball” and what made it even harder to predict this go around was that there was a completely different set of justices on the bench.
“I think we’re right,” said Schwartz. “I’m confident that I’m correct that they did not make an effort to do a complete and accurate list.”
Jeff Sherwin, president of the Edgemont Incorporation Committee, said he is feeling “cautiously optimistic” but that with the courts you really don’t know what will happen.
A court decision is expected sometime this spring, and that decision could be challenged in the New York State Court of Appeals.