Angelis v Town of New Baltimore

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[*1] Angelis v Town of New Baltimore 2005 NY Slip Op 52348(U) [18 Misc 3d 1141(A)] Decided on October 27, 2005 Supreme Court, Greene County Lalor, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 27, 2005
Supreme Court, Greene County

Janet I. Angelis, Dolores Boehlke, Kevin Boehlke, Robin K. Boyd, Mary Gianetto, Mike In Dem Haag, Eleanor Oldham Luckacovic, John Luckacovic, Peter Luke, Brian Lynch, Mary Lynch, Kelly Mahar, Mary Moore, Scott Moore, Marie E. Pieringer, Christine E. Ricci, Peter B. Ricci, III, Joan Ross, Robert Ross, Richard Sweeton, Carole Sweeton and Mary Thatcher, Petitioners,

against

Town of New Baltimore, New York, David Louis, in his capacity as Supervisor of the Town of New Baltimore, and the Town Board of the Town of New Baltimore, Respondents.



05-0593



Galvin & Morgan, 217 Delaware Avenue, Delmar, New York 12054 for petitioners; McNamee, Lochner, Titus & Williams, P.C., 75 State Street, P.O. Box 459, Albany, New York 12207-0459 for respondents.

Daniel K. Lalor, J.

Before the Court is a petition filed pursuant to CPLR Article 78 dated June 10, 2005 seeking to challenge the formation of Water District No.4 in the Town of New Baltimore, New York. By decision and order dated July 29, 2005 the Court withheld consideration of the petition until the undertaking required by Town Law §195(2) had been posted by petitioners in the amount determined by the Court. That undertaking was duly filed within the time prescribed by the Court, and the petition is now before the Court for determination.

The petition purports to incorporate by reference the allegations contained in a petition in a prior proceeding filed March 2, 2005 (Greene County Supreme Court, Index No. 05-0208, RJI 19-05-1707), also seeking to challenge the validity and legality of the formation of Water District #4 by the Town of New Baltimore. Petitioners in that prior proceeding were John Luckacovic, Eleanor Oldham Luckacovic, Robert Ross and Joan Ross, who are petitioners in this proceeding. That petition was dismissed as premature by this Court by decision and order dated May 9, 2005. [*2]

The present petition also seeks to incorporate by reference numerous affidavits filed in the previous proceeding. Some but not all of the individuals whose affidavits are so incorporated are parties to the present petition.

Respondents assert as a first objection in point of law that the petition before the Court violates CPLR 3014, which requires that each paragraph of a pleading contain, as far as practicable, a single allegation.

It is neither good practice nor proper technical procedure to incorporate in a pleading, by reference, pleadings filed in a prior action or proceeding (see, Card v Budini, 29 AD2d 35, 38 [3rd Dept 1967]). Although an appropriate remedy would be dismissal of the petition with leave to replead (Gerena v New York State Div. of Parole, 266 AD2d 761 [3rd Dept 1999]), it is also the case in New York that civil pleadings must be liberally construed and defects must be ignored if a substantial right is not prejudiced (CPLR 3026). In this regard, the Court is mindful of the importance of the issues presented to the citizens of New Baltimore, the delay in reaching an ultimate judicial determination of those issues were petitioners to be put out of court to replead their case, and the fact that the matter has been already once delayed through necessary dismissal of the prior proceeding upon a technical but fatal defect. Accordingly, the Court will deny the respondents' first objection in point of law and consider the merits, as they may be discerned from the petition as submitted. In so doing, the Court considers the factual matter contained in the papers incorporated by reference, but limits its scope of inquiry to the causes of action set forth in the Article 78 petition that is presently before the Court.

Background

The essential facts, as set forth in the record, in the affidavit of David Louis, New Baltimore Town Supervisor, dated July 14, 2005, and in papers filed on the motion to dismiss the prior proceeding, are not disputed. The challenged Water District #4 is a smaller proposed district than that proposed as Water District #3, which failed to gain approval at a public referendum held June 15, 2004. A citizens' petition for Water District #4 with an associated map, plan and report was filed December 13, 2004 with the New Baltimore Town Clerk pursuant to Town Law Article 12. The proposed project included the purchase of treated water from the Village of Ravena, and the construction of a public water distribution system beginning on Route 9W just north of New Baltimore Road, going south on Route 9W to New Baltimore Road, east on New Baltimore Road into the hamlet of New Baltimore, and the installation of water mains within the hamlet of New Baltimore. Also planned were the construction of a small pumping station and a water storage tank at an elevated position north of New Baltimore Road.

On December 13, 2004, the Town Board adopted an order setting a January 5, 2005 meeting at the Cornell Hook and Ladder Fire House to consider the petition. Certified copies of the December 13 order were published and posted. The January 5 meeting resulted in a resolution determining that changes to the Water Plan were necessary, and a second meeting was set for January 27, 2005. By resolution January 31, 2005 the Town Board approved the petition, [*3]as amended, and authorized a further petition to be filed for approval of the plan from the State Comptroller. The New Baltimore Town Clerk filed the required papers with the State Department of Audit and Control, the New York State Department of Environmental Conservation, and on February 1, 2005 the Town's petition was filed with the State Comptroller. Approval from the State Comptroller was granted on May 10, 2005 for the district described in the Town's resolution of January 31, 2005, at a cost not to exceed $3,048,000, including any applicable State aid. On May 16, 2005, the Town at a special meeting of its Town Board by resolution approved a final order establishing New Baltimore Water District No. 4 pursuant to section 194 of the Town Law.

Allegations

The petition before the Court sets forth four causes of action. First, it is claimed that the citizens' petition submitted to the Town is defective on its face. Second, it is claimed that respondents improperly allowed legal and engineering work paid for with public funds to be used for a private purpose, circumventing the will of the electorate as expressed in the June 24, 2004 referendum on Water District #3. Third, it is claimed respondents failed to direct or conduct a proper environmental review of the project prior to its approval. And fourth, it is claimed that respondents improperly altered the shape and boundaries of the proposed district after the citizens group petitions therefor had been signed, allegedly rendering those petitions null and void.

Standard of Review

Town Law section 195(2) provides the exclusive remedy for aggrieved persons in petitioners' circumstances (see Rochester v Town Board of Livonia, 185 Misc. 518). Section 195, subdivision 2 of the Town Law provides, in pertinent part, "Any interested person aggrieved by any final determination or order made pursuant to the provisions of this article may review the same by certiorari provided that the application for such order of certiorari is made within thirty days from the date of the recording of the certified copy of the order or determination in the office of the clerk of the county. The said determination or order shall be final and conclusive unless application has been made for review by certiorari within thirty days from the time of recording thereof."

The common law writ of certiorari has been codified under CPLR 7803. Thus, petitioners' exclusive remedy is through a special proceeding under CPLR Article 78. The applicable standard of review by this Court is that pertaining to a proceeding under CPLR [*4]7803(3).[FN1]

The primary issue before this court is whether the respondent Town acted in an arbitrary and capricious manner when it approved the formation of Water District #4. It is well established that arbitrary action as contemplated by CPLR 7803 is action without sound basis in reason, generally taken without regard to the facts (Matter of Pell v Board of Educ., 34 NY2d 222, 231 [1974]). In reviewing a determination pursuant to CPLR 7803, the court may not substitute its judgment for that of the Town Board ( Matter of Lemir Realty Corp. v Larkin, 10 AD2d 1005 [2d Dept 1960], affd 11 NY2d 20 [1962]) but must restrict its consideration to whether the action was taken without sound basis in reason and without regard to the facts ( Matter of Pell v Board of Educ., supra, at 231).

Facial Validity of Citizens' Petition

The action of the Town Board was based on a citizens' petition consisting of four volumes submitted to the Board pursuant to Town Law §191. Petitioners in this Court in their first cause of action assert that these citizens' petition volumes upon which Water District #4 was based "were defective and therefore null and void in that the Town failed to meet the standards set forth in New York State Election Law and Article 12 of the New York State Town Law" (Petition 05-593 ¶128). In the original Article 78 pleadings incorporated into this proceeding, petitioners in this Court assert that "review and examination of those petitions establish the existence of numerous fatal errors" (¶ 58). Petitioners identify several dozen alleged specific defects, state that "the above defects are set forth by way of example only, other defects exist; however, all have not been detailed due to the constraints of time" (¶ 59), and state that "upon information and belief, despite the fatal defects, on December 13, 2004, when the petition came before the Town Board, the Town accepted the petition as adequate" (¶ 62). Taken together, these allegations have caused the Court to undertake a review ab initio of the citizens' petition to the Town Board for facial validity.

Town Law § 191 provides that a petition to establish a water district "shall be signed by the petitioners, and acknowledged or proved in the same manner as a deed to be recorded, or authenticated in the manner provided by the election law for the authentication of nominating petitions."

A very few of the signatures included in the citizens' petition are "acknowledged" in the most commonly understood sense. Set forth in Volume 3 of the citizens' petition, for example, is the signature of Barbara Parisean, who, personally known to Christina Kae Foust, a notary public in the state of Colorado, on October 4, 2004 in Boulder, Colorado personally acknowledged her [*5]signature to the latter. Similarly, petition signer Nevelle Johnson personally acknowledged his signature on October 5, 2004 in Morris County, New Jersey to Lynne Perry, a notary public in that state. These signatures, acknowledged before a notary public in another state, are properly authenticated as "acknowledged" (Town Law §191, RPL §299).

"Alternatively, proof of the valid execution of an instrument, sufficient to permit its recordation, may be elicited from some other person who was a witness to its execution and who, at the same time, subscribed his name to the instrument or conveyance as a witness (see, Real Property Law §§ 292, 304; see also, General Construction Law § 11)" (In re Estate of Henken, 150 AD2d 447, 448, mot lv den 74 NY2d 612).

The great majority of the signatures in the petition filed with the Town by the citizen's group in this case are so "proved" rather than "acknowledged." That is, within the petition volumes are pages containing lines bearing individual signatures, there being to the right of each a signature of a purported witness to the signing. Corresponding to each such identified witness, on a separate page, there is a page entitled "Acknowledgment", containing a statement of that witness, sworn to before a notary, that the witness knows each of the named persons, whose signatures he or she witnessed, to be in fact the individuals who executed the petition, and that the witness indeed saw each such individual sign the petition.

The Court has examined the petition signature pages and appended proofs, and finds that they meet the requirements for signatures "acknowledged or proved in the same manner as a deed to be recorded."

Town Law section 191 further requires that a petition to establish a water district "shall be signed by the owners of taxable real property situate in the proposed district or extension thereof, owning in the aggregate at least one-half of the assessed valuation of all the taxable real property of the proposed district or extension thereof, as shown upon the latest completed assessment-roll of said town; provided, however, that if there be any resident owners, the petition shall include the signatures of resident owners owning taxable real property aggregating at least one-half of the assessed valuation of all the taxable real property of the proposed district or extension owned by resident owners, according to the latest completed assessment-roll."

(Town Law § 191.)

In other words, the petition must be signed by resident owners of at least 50% of the taxable assessed valuation in the proposed water district, and by a total of owners (resident plus non-resident of at least 50% of the total taxable assessed valuation in the proposed water district.

The affidavit of David Louis sets forth the results of the analysis of the property values encompassed by the proposed district (Affidavit of David Louis dated July 14, 2005, ¶¶ 178-[*6]193). The results were that Proposed Water District #4 included 163 residential properties and 17 vacant parcels. Signers of the citizens' petition represented 64.69 % of all taxable assessed valuation of property within the district, and signers of the petition who were residents of the proposed water district represented 64.39 % of the taxable assessed value within the proposed district. These figures were certified by the Town Assessor and verified by members of the Town Board. Based on the supporting documentation in the record supplied to the Court, it cannot be said that a finding by the Town that public support of the citizens' petition was in excess of the 50% levels required by Town Law § 191 was arbitrary or capricious.

The Court has considered the petitioners' remaining objections to the facial validity of the citizens' petition and finds that they do not invalidate it as a basis for establishment of a water district by the Town. Petitioners before the Court do not contend that the individuals identified as signing the petition did not actually sign it; neither do they argue that the witnesses identified in the petition did not actually witness the signatures thereon. No proof is offered of any fraud or illegality in the execution of the petition. The other objections raised are that there is a single assessor's certification for the four volumes of the petition, that certain cross-outs appear that are not initialed or dated, that the handwriting on certain of the column entries for assessed value and tax map number differs from that of the signatures of the petition, and that some assessed value information is incomplete.

With respect to such claimed irregularities in signature sheets on a nominating petition, it has been held that "substantial compliance" with the statute, not literal and precise compliance, is required (Marcatante v Lundy, 3 NY2d 913, reversing on dissenting opinion at 4 AD2d 883). And, in analogous situations, courts have applied a "substantial compliance" standard to referendum petitions (see Cavallaro v Schimel, 194 Misc 2d 788, 790). Strict compliance, it appears, is required only as to language that is "statutorily mandated as part of the content of a petition" (Heath v Town of Islip, 169 Misc 2d 382 affirmed at 239 AD2d 501).

The citizens' petition here substantially complies with the requirements of Town Law § 191.

Use of "Town Services and Property"

Petitioners' second cause of action alleges that respondents improperly permitted the citizens' group to use the services of an attorney retained by the Town, and the results of an engineering report obtained by the Town, in preparing their petition to the Town.

If these allegations were true, they might support a remedy for conversion of Town property, or action by an ethical body, however they would not affect the legality or illegality of the formation of Water District #4, which issue depends only on whether the procedure set forth in Town Law Article 12 was duly followed.

However, both allegations are refuted by the record. As to the engineering report, the documentary evidence before the Court shows that the agreement between the Town and the engineering firm provided that the firm "shall retain an ownership and property interest therein [*7](including the right of reuse at the discretion of the engineer) whether or not the Project is completed" (Affidavit of David Louis dated July 14, 2005, Exhibit A, ¶ 6.04). Further, once a report of any sort is obtained by a town, to the extent it becomes public property, it should be as available to one group of citizens as another, should they wish to make use of it in support of any further or different application to the Town. As to the employment of the services of John W. Tabner, Esq., the record reflects that his retainer with the Town of New Baltimore in connection with the proposed establishment of Water District #3 ended, and he performed no further services for the Town after June 15, 2004 (Affidavit of David Louis dated July 14, 2005, ¶128, Affidavit of John W. Tabner, Esq., dated July 11, 2005). The Court perceives no conflict whatever in Tabner's activities thereafter in rendering assistance on a pro-bono basis to the citizens' group seeking to establish Water District #4 (Affidavit of John W. Tabner, Esq dated July 11, 2005).

Environmental Review

The affidavit of David Louis sets forth in detail the steps taken by the Town in undertaking an environmental review of the proposed Water District #4 (Affidavit of David Louis dated July 14, 2005, ¶¶ 277-305), which the Court has reviewed. In particular, the Court has reviewed the documentation of the steps taken by the Town in preparing its Environmental Assessment Form ("EAF") for proposed Water District No. 4, and in complying with the requirements of the State Environmental Quality Review Act ("SEQRA").

Based on its review, the Court is satisfied that in establishing Water District #4, the Town directed a proper environmental review and duly considered all relevant factors in arriving at its decision. Under the applicable standard of review, the Court cannot say that the Town's actions in this regard were arbitrary and capricious.

Alteration of Boundaries

The gravamen of petitioners' fourth cause of action is their allegation that the Town, having failed to secure approval for proposed Water District #3 at referendum in part through the public efforts of petitioners who opposed said water district, proceeded to entertain a petition for a revised water district that initially excluded petitioners' properties (thus allegedly depriving them of standing to oppose the plan), but then by amendment to the map establishing the boundaries of the proposed district revised the plan so as to re-include petitioners' properties. Specifically, it is alleged (Petition #05-593, ¶144), that "respondents allowed the persons carrying the petitions challenged herein to change the shape and boundaries of the proposed district after the petitions had been signed thereby rendering those petitions null and void . . . ." If this is an accurate summary of the facts, the crucial issue to determine is the legality of the process by which the amendment to the plan for Water District #4 was accomplished.

Petitioners' fourth cause of action misapprehends the procedure called for under the Town Law in regard to the formation of water districts, which not only permits but requires [*8]amendment of proposed district boundaries in certain circumstances.

Town Law §194 provides that, upon presentation of a citizens' petition, after a duly noticed public hearing the town board must determine by resolution whether the petition is in all respects legally sufficient, whether all the property and property owners within the proposed district or extension are benefitted thereby; whether all the property and property owners benefitted are included within the limits of the proposed district or extension, and whether it is in the public interest to grant in whole or in part the relief sought. Then, "If the town board shall determine that the petition is signed, and acknowledged or proved, or authenticated, as required by law and is otherwise sufficient and that it is in the public interest to grant the relief sought, either in whole or in part, but shall find that any part or portion of the property or property owners within the proposed district or extension are not benefitted thereby or that certain property or property owners benefitted thereby have not been included therein, the town board shall specify the necessary changes of the boundaries of the proposed district or extension to be made in order that all of the property and property owners and only such property and property owners as are benefitted shall be included within such proposed district or extension, and the board shall call a further hearing at a definite place and time not less than fifteen nor more than twenty-five days after such determination . . . ."

(Town Law §194(2)(b). )

The statutory scheme thus specifically authorizes alteration to the boundaries of the district initially proposed, after the signatures in support thereof have been collected, subject only to a further public hearing. The affidavit of David Louis submitted in opposition to the petition (Louis affidavit, ¶¶ 231 276) sets forth in detail the steps taken by the Town to determine whether the proposed district was in the public interest, what alterations to the proposed district were required under Town Law §194(2)(b), and the procedures followed to effectuate those determinations. The Court finds that the record supports the conclusions set forth therein, and upon review the Court cannot say that the judgments of the Town Board so reached in resolving this closely divided public issue were arbitrary or capricious.

The relief requested in the petition before the Court is in its entirety denied, and the petition dismissed.

This is the Decision and Order of the Court. Counsel for respondents is directed to enter this Decision and Order without notice, and to serve other counsel with a copy of the Decision and Order, with notice of entry.

Dated :October 27, 2005 [*9]

Catskill, New York

_______________________________

Hon. Daniel K. Lalor

Footnotes

Footnote 1:As a corollary to the exclusive nature of the remedy provided by Town Law §195(2), to the extent petitioners have denominated their application also an "action"for a declaratory judgment in addition to a special proceeding, the papers fail to state a cause of action as stated in Respondents' second Objection in Point of Law and are, accordingly, hereby dismissed.



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