Four New York State Appellate Court justices heard oral arguments on Feb. 2 regarding 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 attempt to hold a referendum.
The appeal follows Westchester Supreme Court Judge Susan Cacace’s ruling, in May, that sided with the Edgemont Incorporation Committee’s (EIC) Article 78 filing and overturned Greenburgh Town Supervisor Paul Feiner’s determination 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 ruled against the EIC’s first attempt at a petition in 2018. None of the justices who will rule on the 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 Fensterman, who also represented Feiner during the 2017 incorporation fight, argued that the petition’s list of regular inhabitants (LORI) wasn’t attached to the petition when it was circulated for signatures, that the petition’s signatures were stale, that the LORI did not include the names and addresses of children, and that the description of Greenville Fire District as the boundary for a village of Edgemont was not proper.
Jim Hallowell, an Edgemont resident and partner at Gibson, Dunn & Crutcher who represented the incorporation petitioners, contended that the LORI did not need to be circulated at the time when signatures were obtained and only needed to be filed with the town supervisor.
Spolzino said the issue was that the majority 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,” Spolzino argued.
Justice Paul Wooten said that 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 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,” Spolzino said. “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,” Hallowell said.
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 focused on the metes and bounds description of the proposed territory to be incorporated. Hallowell said the description of the territory was attached to the petition and was circulated to all the signatories and was different from the description that 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,” Hallowell said.
When asked by Justice Mark 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,” Hallowell said. “Reference to one or two overlapping parcels hasn’t stopped that election and it shouldn’t stop the election that petitioners seek here.”
A court decision is expected this spring, and that decision could be challenged in the New York State Court of Appeals.