Invoking an Article 78 proceeding in response to Greenburgh Town Supervisor Paul Feiner’s denial July 26 of a petition for Edgemont incorporation, the petitioners filed a lawsuit in New York State Supreme Court Aug. 26, calling the supervisor’s decision “erroneous” and “unlawful.”
“By creating unlawful obstacles for preparers of the petition, Supervisor Feiner’s decision circumvents the principle that the citizens should have the opportunity to determine how they will be governed,” wrote the petitioners in a memorandum to the Article 78 petition.
During the Edgemont Incorporation Committee’s first attempt at making Edgemont Greenburgh’s seventh village in 2017, Feiner denied Edgemont’s petition, which led petitioners to file an Article 78 proceeding. The New York State Supreme Court sided with the petitioners on Feb. 1, reversing Feiner’s denial. On Oct. 17, 2018 however, the Appellate Division Second Department ordered a reversal of the Supreme Court’s judgment.
Echoing his 2017 decision, Feiner rendered the EIC’s May 28, 2019 petition legally insufficient because, he said, the petition failed to include an accurate list of regular inhabitants. He also faulted the petition for including signatures before the petition’s submittal, and for failing to include a metes and bounds description of the proposed incorporated area and a lack of common certainty in the proposed territory.
“After carefully considering all of the testimony that I heard at the public hearing and everything that has been submitted, and after giving very careful consideration to this decision, I have decided … that the petition does not comply with the requirements of Article 2 of the Village Law,” wrote Feiner in his 25-page decision dated July 26.
Petitioners fired back at Feiner this week in the Article 78 petition, calling his actions against pro-incorporation constituents a “scorched earth campaign to derail democracy.”
“Supervisor Feiner spent tens of thousands of dollars of taxpayer money to hire private investigators in a failed effort to trick Edgemont residents into recanting their signatures on the 2017 Petition,” petitioners wrote.
In a previous news report, Feiner told the Inquirer [“Greenburgh town supervisor denies Edgemont petition,” Aug. 2] he was confident about his petition rejection and said he would be surprised if the EIC pursued an Article 78.
“I’d be really amazed if they would win a court case,” said Feiner. “I just thought this was a slam dunk.”
Feiner wrote in his denial decision that the petition submitted on May 28 had a list of regular inhabitants that was not attached to the petition when residents signed on — a violation of Village Law, which asserts that a list of regular inhabitants must be included as an attachment with the signature pages.
The Article 78 court filing contends that volunteers periodically requested voter registration rolls from the Westchester County Board of Elections to obtain the most up-to-date resident information. Citing the petition’s failure to include signatures prior to the attachment of a finalized list of regular inhabitants (LORI), the petitioners argued there was “no requirement that a finalized LORI be ‘part of the document’ at the time of signing.”
Petitioners wrote in the Article 78 memorandum that it would be “functionally impossible” to provide Feiner’s idea of a true list of regular inhabitants.
Referencing Michael Schwartz and Hugh Schwartz’s petition objections, Feiner also said in his petition denial that the list of regular inhabitants did not include the names and addresses of children in the community.
“The Appellate Division, Second Department, has made it clear that the petition must comply strictly with the statutory requirements, including the requirement that the list of regular inhabitants be complete,” Feiner wrote in his decision.
“There is no basis in that law on which I can ignore the fact that the children who reside in the territory proposed to be incorporated are regular inhabitants of that territory whose names are required to be included in the list of regular inhabitants submitted with the petition.”
In December 2018, EIC President Jeff Sherwin submitted a Freedom of Information Law request to the Edgemont Union Free School District for a list of names of all the children who reside in the district. The school district rejected the request citing the 1974 Family Educational Rights and Privacy Act. The EIC decided to only include children’s names in the petition with express permission from a guardian, filling the rest of the LORI with “Minor Doe.”
The EIC also attempted to contact Edgemont residents for children’s names through email blasts, social media and in the Inquirer, according to Sherwin. The Article 78 proceeding document suggests the inclusion of minors’ names within a list of regular inhabitants is not specified within village law and that Feiner “is using his own constituents’ minor children as human shields, to prevent a vote from taking place.”
Petitioners also suggested that posting the petition on the town’s website defied the town’s own Children Internet Safety Act which prohibits the town from posting children’s names and addresses without parental permission.
On Aug. 28, Edgemont Community Council President Bob Bernstein sent a letter to Feiner requesting him to immediately remove the names and addresses of all minors included in the list of regular inhabitants from the petition filed May 28.
Feiner told the Inquirer he took down the petition from the website on Aug. 29 after receiving a complaint from a resident with a child. As of press time, the petition with the LORI can still be viewed on the town website’s archived news section.
“We wanted to make it easy for people to review the petition before the sufficiency hearing,” Feiner told the Inquirer. “I just felt that at this point … there’s no need for people to see the petition because residents already had the opportunity to speak about the petition’s sufficiency.”
Feiner said his decision to remove the petition had nothing to do with Bernstein’s request.
“There’s no violation because it’s a public document and they’re the ones who disclosed the names, not me,” said Feiner. He also added that if the EIC was concerned, the group should’ve told everyone who signed the petition that their names would be available publicly.
“They were the ones who filed it, they got the names, they put it on a public record; everyone in the world could see it,” said Feiner. “If they’re so concerned — which I really doubt that they are — then they should’ve disclosed it to people before they signed the petition.”
Feiner said the incorporation proponents are trying to create an issue regarding the town’s publication of the children’s names because “they know that they’re going to lose the lawsuit.”
“In the 2017 petition [the supervisor] said that we had to get the names of children, so we made every effort. There’s nothing in the law that says that he has to go and put it on a public website,” said Sherwin. “He’s taking an extreme position on an interpretation of the law and then he’s assuming that in order for people to vote we have to go and get the consent of parents to list the names and addresses of their minors on a public website. That’s insane.”
Sherwin added there is no law which requires Feiner to post the names and addresses of minors on the town website and that the petition has to be available for inspection at the town clerk’s office.
“There is a law that specifically prohibits him from posting the names and addresses of minors on the website,” said Sherwin, referencing the Children's Internet Safety Act passed in 2005. “We have a supervisor who picks and chooses which laws he wishes to follow or ignore based on whatever is convenient for him.”
Bernstein, who was receiving complaints from worried Edgemont parents, told the Inquirer there is a difference between the EIC getting parental permission to have their children’s names put on the petition and the town getting parental permission to post those names on the town’s website.
“There is no requirement at all that the petition or its exhibits … be posted on the town’s website or online anywhere,” said Bernstein. “The petition itself is certainly free for the public to look at and anyone can go to the town clerk’s office to see the supporting documentation.”
The 2005 act stated that posting the names, home addresses, email addresses and phone numbers of minors on the town's website was “unsafe, irresponsible, inappropriate and, absent parental consent, [an] invasion of privacy.”
According to Feiner, the town also went through a number of changes since the 2017 petition — there are new members on the town board, it had a local election for town supervisor, and the anti-incorporation group Keep Edgemont had been established.
“For all of these reasons, there are serious doubts as to whether a resident who signed the petition in 2017 would still support the incorporation today,” he wrote in his petition denial.
Proponents of Edgemont incorporation responded in the Article 78 petition that the EIC had sent out an email blast on June 10 “inviting anyone who wished to remove his or her name from the petition to do so.” The EIC also added that they would not ask any questions of those who did.
According to the Article 78 petition, no one responded to remove their signatures and nobody showed up to the July 16 hearing to request that their name be stricken.
The supervisor also had reservations about the petition’s proposed territorial boundaries, asserting the petition did not meet the law’s metes and bounds description. Referencing objections from Edgemont residents Michael Schwartz, Martin Payson and Phillip Chonigman, Feiner said he also believed the petition did not describe the proposed territory with “common certainty.” He stated that using the Greenville Fire District as a boundary defining the proposed village of Edgemont was unsatisfactory due to “well-documented ongoing, current, unresolved boundary disputes with the Hartsdale Fire District.”
Petitioners responded, calling Feiner’s definition of metes and bounds to include distances and angles “illogical.”
“It is utterly irrelevant that there have been significant changes to the territory proposed to be incorporated since the 1923 metes and bounds description,” wrote petitioners in the Article 78 document. “The phrase ‘common certainty,’ in essence conveys a standard of description that is more commonly understandable than precise, with the emphasis of the phrase more appropriately placed on the ‘common’ than on the ‘certainty.’”
Using 16 United States Supreme Court cases as reference, incorporation proponents argued that “boundary disputes between states have existed since the founding of the Republic,” and that “even if there are occasional individual parcels for which it is difficult to determine whether they fall within the Greenville Fire District, the Hartsdale Fire District or both, that ambiguity has not prevented either district from functioning, and cannot categorically preclude a vote on incorporation for a new village of Edgemont.”
Feiner said although he has yet to see the Article 78 filing, he believes the state legislature made incorporating villages difficult, in order to stem the formation of additional layers of government.
“I’m not the one who wrote the statute,” said Feiner. “The statute’s written by the state legislature and although they have the right to file an appeal, I personally don’t think it’s going to be successful.”
Feiner told the Inquirer the EIC should contact the state legislature and the governor’s office and try to change the law if they believe it’s too difficult for them to incorporate.
Article 78 was filed with the New York State Supreme Court in White Plains on Aug. 26 with Judge Susan Cacace assigned to the case. In 2017, Cacace rejected Feiner’s motion to dismiss the Article 78 filing against the town of Greenburgh and deemed the 2017 petition legally sufficient according to New York State Village Law.
According to Bernstein, law firm Gibson, Dunn and Crutcher would be serving papers to the supervisor sometime this week.
“It’s the same thing as two years ago — they didn’t comply with the law and I don’t think they’re complying with the law again,” said Feiner. “But they certainly have a right to appeal.”