Echoing a similar decree in 2018, Westchester Supreme Court Judge Susan Cacace ruled in favor of the arguments made in the Edgemont Incorporation Committee’s Article 78 filing and overturned Greenburgh Town Supervisor Paul Feiner’s ruling that Edgemont’s petition for incorporation did not sufficiently meet the standards set out in New York State village law to become Greenburgh’s seventh village. In overturning Feiner’s ruling, Cacace ordered that the town schedule a referendum to decide Edgemont’s fate no later than 40 days after her verdict filed May 21.
In an email to residents on May 22, Feiner said the town planned to appeal Cacace’s ruling to the Appellate Division of the State of New York, which overturned Cacace’s October 2018 decision to allow Edgemont to hold a referendum. The New York State Court of Appeals refused to hear the case.
“The second petition addressed all of the issues Feiner raised that were accepted by the [Appellate Court] Second Department and now he is making an entirely new set of arguments,” said Jeff Sherwin, president of the Edgemont Incorporation Committee. “He realizes that we’ve addressed his issues in the first go around and now he’s coming up with a new set of issues and expecting that he will have the same result … but just because you won an appeal one time doesn’t mean you’re going to win an appeal again.”
Feiner rendered the EIC’s May 28, 2019 petition legally insufficient because, he said, the petition failed to include a complete list of regular inhabitants, as it still did not officially name all the children living within the Greenville Fire District. He also faulted the petition for failing to contain valid signatures of at least 20% of the residents of the proposed village of Edgemont, 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.
Feiner told the Inquirer that he was not surprised by the lower court’s decision and that he was confident that the appeal would rule in his favor. In a previous article in the Inquirer [“Greenburgh town supervisor denies Edgemont petition,” Aug. 2, 2019], Feiner called his decision to render the EIC’s incorporation petition legally insufficient a “slam dunk,” a characterization he said he still stands by.
“I think that the opinion [of Cacace] was more of her personal views rather than what the Appellate Division said,” Feiner told the Inquirer. “I basically believe that we have a very strong case.”
Cacace referenced multiple case laws throughout her 51-page ruling, including the previous Edgemont incorporation case of Bernstein v. Feiner.
Regarding Feiner’s justification that because the May 2019 list of regular inhabitants was not attached prior to signatures being obtained on the petition, and 1,642 signatures were void, and thus, the petition did not comply with the village law requiring signatures from at least 20% of the residents of the proposed village of Edgemont, Cacace wrote in her ruling that Feiner’s finding was “erroneous” and “based upon an ill-chosen and incongruous” application of New York State village law. Cacace added that village law specified that signatories be familiar with the “contents” of the petition, and the law specified the five items that signatories needed to be aware of. A list of regular inhabitants was not on that list.
Feiner also declared that the 2017 signatures added to the 2019 petition were “stale” and needed to be invalidated, citing evidence that between 2017 and the filing of the new petition, the town had replaced a town board member and that an anti-incorporation website was created, which could’ve swayed previous signatories to the anti-incorporation front.
Cacace wrote in her decision that Feiner’s argument was completely absent of evidence and only relied upon case law that was decided 34 years ago, had never been followed and which included signatures that were between double and quadruple the age of any of the 1,642 petition signatures added to the 2019 petition.
Regarding Feiner’s declaration that the list of regular habitants was not complete due to it not including the names of the children in the proposed village of Edgemont, instead replacing names of children with “Minor Doe” and “Minor,” Cacace wrote that case law within the Second and Third departments of the Appellate Division was not clearly defined and that in the previous Appellate Court decision in Bernstein v. Feiner, the court revealed that a town supervisor could only reject a petition for incorporation due to the absence of an “accurate” list of regular inhabitants. Using case law as reference, Cacace added that if accuracy was based on the notion that the list of regular inhabitants was free from inaccuracies, such as the inclusion of nonresidents or dead persons, then it would be entirely reasonable to conclude that the list of regular inhabitants under review was sufficiently accurate to comply with the requirements of village law.
Referencing an affidavit submitted by Sharyn Lewis, Cacace wrote that the EIC went to great efforts to produce a definitive current list of regular inhabitants, and that to require a list of regular inhabitants be “completely accurate and free from any imperfection would ensure that no village could ever be incorporated in the State of New York.”
Ascribing Feiner’s argument that the petition failed to meet a metes and bounds description for the proposed village of Edgemont, as the petition did not contain references to distances and angles as described in the definition of metes and bounds in Black’s Law Dictionary, Cacace wrote that according to guidance offered by the Second Department in the incorporation of the village of Airmont in Rockland County, the court recognized that the examination of a metes and bounds description must be focused on the assessment of whether the territorial boundaries are “readily ascertainable.”
Cacace added that the Greenville Fire District represented a “facially sufficient” and “adequately retraceable description of geographic boundaries.”
As to Feiner’s argument that the territory of the proposed village of Edgemont did not meet the “common certainty” standard outlined in village law because the Greenville and Hartsdale fire districts had a longstanding historical land dispute regarding several tax parcels, Cacace wrote that although the dispute was longstanding, neither of the fire districts had actively been attempting to resolve the 97-year-old dispute and that the exhaustive history laid out in Feiner’s conclusions failed to refute the clear establishment of the Greenville Fire District boundaries by the Westchester County Board of Supervisors in 1923.
In the 2017 petition, the EIC had also made reference to the Edgemont School District as a proper boundary but removed it in the 2019 petition when the appellate court previously ruled that the Edgemont School District and Greenville Fire District were not coterminous and there was no common certainty of the boundaries.
“We removed the reference to the school district and resubmitted the exact metes and bounds language that the town uses for taxing the Greenville Fire District,” said Sherwin. “Feiner basically said [that we] may have removed the reference but now [he] finds the definition entirely confusing anyway. So an issue he didn’t bring up before is now some new issue. That’s what he’s doing, he’s sort of manufacturing new issues.”
Hugh Schwartz, an objector to the most recent petition and a staunch opponent of Edgemont’s incorporation, said that whether someone in Edgemont is in favor of Edgemont incorporating or not, the appeal is “doing everybody a favor” with the fiscal and social implications related to the COVID-19 pandemic.
“It’s just the wrong time to even consider it,” said Schwartz. “Frankly, I think the court’s tone deaf in terms of the timing.”
With the financial futures for many municipalities in flux around the state, Schwartz said he believes members of the EIC should focus on helping to deal with the fiscal implications of the COVID-19 pandemic in Edgemont as it currently stood within unincorporated Greenburgh, rather than attempt to create an entirely new municipality.
“[Let’s] take all of these very, very smart minds … and figure out how we’re going to fix what’s happening right now,” said Schwartz. “Incorporation won’t fix any of that.”
Sherwin said if Edgemont were to hold a referendum in the next couple of months, the newly formed village of Edgemont wouldn’t be required to provide services for another year, and given its heavy reliance on property taxes, the future village of Edgemont wouldn’t be dramatically impacted by the pandemic’s strain on commercial revenue.
“This area is in this really interesting inflection point where there are lots of businesses that are going under and there are lots of opportunities to go and figure out how to rezone and … encourage business as we come out of a government-mandated recession,” said Sherwin. “The question Edgemont residents need to ask themselves is: Do they want the town — which demonstrated year [after] year that [it] hasn’t been able to encourage that kind of business — to be responsible to figuring that out? Or do they want to do that themselves?”