New incorporation lawsuit against Feiner
On Monday evening, petitioners filed a lawsuit against Town Supervisor Paul Feiner to reverse his rejection of Edgemont’s second petition for a vote on incorporation (the lawsuit is available here). If his rejection is reversed, people will finally have the chance to vote on whether Edgemont should become Greenburgh’s seventh village.
Back in 2017, the first petition was also denied. That denial was reversed (and an election was ordered) by the New York State Supreme Court. Ultimately, however, the New York Appellate Division reversed the lower court’s decision.
The second petition, with hundreds more signatures than the first, emphasizes the will of the Edgemont electorate to hold a referendum on incorporation. The lawsuit explains how Feiner's decision was unlawful, particularly after the petitioners made every effort to cure the defects Feiner believed existed in the first petition.
The lawsuit identifies several areas in which Feiner’s decision is unlawful:
On the list of inhabitants
Feiner insists that all names and addresses of all Edgemont minors must be attached to the petition. He rejected the EIC's approach of only including information about minors when their parents provided consent to do so.
Notably, Feiner posted the second petition, including the attached list of Edgemont residents (which included the names and addresses of some minors, as noted above), on the Town’s website. However, in doing so, Feiner violated his own Children’s Internet Safety Act, passed in 2005!
Feiner's decision effectively grants any incorporation opponent a unilateral ability to prevent a vote, since any resident can choose not to provide the names of household members (such as infants whose information is not available anywhere else).
Indeed, although Feiner suggests that he is simply following the law, no town supervisor has ever adopted such extreme interpretations.
On the petition signatures
Feiner claims that, because he paved an Edgemont road and the Town Board has a new member, incorporation sentiment has changed materially. Therefore, he concludes that people who signed the petition two years ago must no longer support incorporation.
In other words, Supervisor Feiner decided that he did not have to bother allowing the people of Edgemont to express their view themselves through a vote, because he claims to know those views without requiring an election.
Moreover, his logic makes no sense because the signing of the petition indicated support for a vote on incorporation, not incorporation itself. In conflating the two, Feiner reveals a basic misunderstanding of the purpose of an incorporation petition.
On the boundaries
Feiner attempts to argue that the boundaries are unclear because the petition's description contains text that he finds confusing. Yet, the text to which he refers doesn't even appear in the petition.
Feiner also says that a metes-and-bounds definition of boundaries must always include "distances" and "angles." But his heightened definition contradicts the definitive history of metes and bounds by Harvard Law Professor Maureen Brady in the Yale Law Review (available here, should you wish to review it).
On the procedure
Feiner delegated his responsibility in the hearing to his attorney, who claimed that he was permitted to rule as if he were an acting judge. In fact, he had no such authority.
Feiner closed the hearing before proponents of incorporation could review the objections. He also refused to hear testimony as to the objections, thereby closing off the due process necessary for him to make an impartial decision.
Based on the Town’s first publication of notice for the hearing, the objections submitted were outside the legal timing window and therefore all untimely.
Meanwhile, the day before the filing, the Town Attorney demanded that the first petitioners personally pay the Town $32,000 for court fees. Clearly, the timing of this notice is intended to intimidate. We suppose this behavior is unsurprising from a government that has already spent $225,000 on legal fees (including the above-mentioned attorney, who also advised the Supervisor to hire private investigators) to prevent a community group from voting on its preferred form of self-governance. We are accepting contributions to cover the petitioners’ expenses, so please consider donating.
For a sharp contrast to the actions of Supervisor Feiner, we look east to Long Island, where the Southampton Town Supervisor just approved an incorporation petition submitted by residents of the East Quogue hamlet (after having rejected the petition). In his decision, the Southhampton Supervisor stated:
Because I believe that the State Legislature adopted these provisions to permit, rather than prohibit, home rule, I am satisfied that the Petitioners exercised sufficient due diligence in their effort to remove the names of those who have passed away. To hold otherwise would ensure that no new village was ever created within the confines of the Appellate Division, Second Department, since a list of regular inhabitants could never be complete from one day to the next. That simply cannot be intent and consequence of Village Law Article 2.
Thanks for your continued support.
The EIC
PS. ICYMI, Edgemont is the featured community in the NY Times Real Estate section (available here) and the Edgemont lawsuit was covered by Lohud (available here).
