Edgemont incorporation opponents, and respondents in the latest Edgemont Incorporation Committee appeal, Janet Linn and Hugh Schwartz, filed an opposition to motion for leave of appeal Nov. 30, challenging the EIC motion for a date in court before the New York State Court of Appeals.

The EIC filed its motion in early November after a Brooklyn-based appellate court overturned Westchester Supreme Court Judge Susan Cacace’s ruling for a referendum on incorporation.

The EIC’s November motion hinges strongly on an alleged conflict between the state appellate division’s Second Department and Third Department.

The Second Department, based in Brooklyn, covers Queens, Brooklyn, Staten Island, Long Island, Dutchess County, Orange County, Putnam County, Rockland County and Westchester County.

The Third Department, based in Albany, covers state borders between Vermont and Quebec and includes the cities of Albany, Troy, Schenectady, Saratoga Springs and Binghamton. In addition, it extends as far west as Syracuse.

Within their motion, the EIC attempts on numerous occasions to show the Brooklyn-based courts ruling does not line up with several incorporation petition rulings made by the Third Department.

The Second Department ruled the EIC’s petition was insufficient in two areas of Village Law (the state law of incorporated villages in New York.)

Firstly, the EIC did not explain the boundaries of the proposed Village of Edgemont with any “common certainty.”

Secondly, they did not have a sufficient list of regular inhabitants.

In its appeal, the EIC cited a Third Department case in which petitioners in the northern New York hamlet of Defreetsville, included both a metes and bounds description and a map to show where the boundaries for the new village would be.

After the town supervisor in that case rejected the petition because he thought the map was inaccurate, the Third Department ruled it didn’t matter because the metes and bounds description was good enough.

In Edgemont’s case, the confusion lies within a reference to an 1899 map of the Edgemont School District.

The EIC argues — as it has for the past year — the reference to the 1899 map is only “collateral” or inconsequential to the map they were actually trying to use, i.e. the Greenville Fire District map.

The real description, the EIC said, is both a 1923 metes and bounds description of the Greenville Fire District and a 1934 map of the same.

The EIC contends that If the Second Department ruled like the Third Department, then either the metes and bounds description or the map would be good enough.

However, the Second Department ruled the 1899 map of the Edgemont School District — which is not coterminous with the Greenville Fire District — created a lack of common certainty.

Therefore, the EIC argued, there is a departmental conflict on the rules for common certainty. Linn and Schwartz, who are married, pushed back on this notion.

They argued that the EIC case is different from the case law cited in their appeal, because no conflict arose in the documents submitted by the Defreetsville petitioners. However, they argued, the Edgemont case created a conflict because the EIC mentioned both the Greenville Fire District and the Edgemont School District.

The second reason the Second Department ruled against the EIC is its determination the EIC did not include a sufficient list of people who would regularly live in the Village of Edgemont.

In their motion, the EIC argues the Third Department appellate division required the list of regular inhabitants be a “good faith” effort while the Second Department requires “strict compliance,” a requirement the EIC deems is nearly impossible. In their two-page decision the Second Department appellate court provided no definition for what “strict compliance” actually means.

This part of Village Law was a major point of discussion on June 14 during the oral arguments.

There are two subsections in Village Law Section 2-202 that mention “regular inhabitants.” The first subsection requires any petition for incorporation to allege that the area in which the petitioners are looking to incorporate has at least 500 people. The second mention of regular inhabitants simply states the petition must include “the names and addresses of the regular inhabitants of the territory.”

According to the EIC motion, the Third Department has ruled the list of 500 names and addresses is good enough to satisfy all regular inhabitants requirements.

However, Linn, Schwartz and Town Supervisor Paul Feiner, through his attorney Robert Spolzino, argued that the second mention of regular inhabitants asks the EIC to get as close as possible to a count of all of the regular inhabitants in the proposed Village of Edgemont.

In a letter to the editor of The Inquirer, Linn and Schwartz wrote that the count should include registered voters, qualified voters, minors and legal non-citizens.

The EIC argued that including minors’ addresses and looking into residents’ citizenship status could create a dangerous environment.

However, Linn and Schwartz stated that even without those two categories, the EIC did not include a full list of qualified voters but instead included a number of qualified voters and a list of mostly registered voters.

Linn and Schwartz argued further that even under the Third Department’s “good faith” mandate, by not including a full list of qualified voters — U.S. citizen residents in Edgemont over the age of 18 — the EIC’s list was not in “good faith.”

Another point of contention for the EIC was that the Second Department’s decision was only two pages. EIC leadership said this provided little instruction on how the committee should proceed in further incorporation efforts.

The EIC has already begun creation of another petition for which they already have more than 2,000 signatures.

Linn and Schwartz argued in their motion the Second Department was clear in its rejection of the list of regular inhabitants and the EIC’s boundaries description.

“[The EIC seeks] to have this court rewrite the statute, not clarify it,” Linn and Schwartz said. “For that, they must obtain their remedy from the legislature.”

The EIC also argued the Second Department’s decision essentially gave the town supervisor total power in reviewing incorporation decisions.

The EIC group recapped what it believes are controversial steps Feiner took leading up to the incorporation petition decision, such as meeting with town officials to play up the negatives of Edgemont incorporation, allying himself with anti-incorporation groups, and using town funds to hire private investigators to go door-to-door and find issues with the incorporation petition.

The EIC also argued the Second Department appears to agree with Feiner on the aforementioned boundaries and regular inhabitant arguments without stating why.

Linn and Schwartz said that the EIC’s list of alleged Feiner missteps are both “irrelevant and inaccurate.”

They said the Second Department ruled on the facts and “properly found [Feiner’s] conclusions regarding the lack of common certainty and deficient list of regular inhabitants were not illegal.”

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