Bailey v Village of Lyons Bd. of Trustees
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Bailey v Village of Lyons Bd. of Trustees 2014 NY Slip Op 30405(U) February 19, 2014 Supreme Court, Wayne County Docket Number: 76640 Judge: John B. Nesbitt Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] STATE OF NEW YORK SUPRE.l\.1E COURT COUNTY OF WAYNE JACK BAILEY and ANDREW DEWOLF Petitioners, -vs- Index o. 76640 VILLAGE OF L VONS BOARD OF TRUSTEES Respondents. APPEARANCES: Jack Bailey and Andrew DeWolf Petitioners Pro Se Arthur B. Williams, Esq. Attorney for Respondent MEMORANDUM - DECISION John B. Nesbitt, .J. The instant petition brought under CPLR Article 78 challenges certai actions by the Village Clerk of the Village of Lyons (herein the " Village Clerk") and the Board of rustees of the Village of Lyons (herein the " Village Board" or "Village ") resulting in the scheduli g of a special election on March 18, 2014, on the proposition whether the plan of dissolution for the Village of Lyons shall take effect. Petiti ners allege that the statutory requirements enabling such lection have not been .met; accordingly, such election should be enjoined and the dissolution plan go into effect as provided by law. Petitioners invoke this Court' s authority under CPLR §7804(3 ), enabl ngjudicial review and remedy where a "body or officer" has made a determination that "was affect d by an error oflaw or was arbi ary and capricious." The operative facts are uncomplicated and undisputed. Effective arch 21 , 2010, a new Article 17-A was added to the N.Y. General Municipal Law (herein "GML " designated the "New N. Y. Govemmen Reorganization and Citizen Empowerment Act." This legi ation replaced Article 19 of the N.Y. Vi llage Law, which had previously governed dissolution of llages. However, like the repealed Article 19 of the Village Law, GML Article 17-A provides me hani sm by which the voters can petition and require a village board to prepare and approve an "elect r initiated dissolution [* 2] plan" that dissolves of the village. GML .t\rticle 17-A mandates voter refi renda upon the initial petition seeking dissolution as well as one after village board approval of th dissolution plan if so petitioned by the voters. This proceeding concerns the latter. Under GML Article 17-A, voter reforenda initiates by petition. Regar ing this process, GML §785 controls and provides in pertinent part. iated dissolution plan; pcrmissi e referendum §785. Effective date of elector init1 1. A local government entity dissolved pursuant to an e ector initiated dissolution plan shall continue to be governed as before dissolution un il the effective date of th dissolution specified in the elector initiated dissolution pl , which date shall be no less than forty-five days after final approval of the plan .. 2. Notwithstanding subdivision one of this section, the e ector initiated dissolution plan shall not take effect if, no later than forty-five ys after final approval of such plan ... , electors of the local government entity to be ·ssolved shall: (a) file an original petition, containing not less than the numb r of signatures provided for in subdivision three of this section, seeking a refer ndum on the question whether the elector initiat1~d dissolution plan shall take effe t ... ;and (b) thereafter less than a majority of the electors vote in the ffirmative on s ch question at a referendum. 3. The petition shall be circulated, signed and authenticate compliance with the provisions of §779, shall contain the signa es of at least twenty-five percent of the number of electors, orl5,000, whichever is less, in the local government entity to be disso1 ved, and shall be accompanied b a cover sheet containing the name, address, and telephone number of an individual ho signed the petition and who will serve as a contact person. 4. Within ten days of the Iling of the petition seeking a ferendum on whether the elector initiated dissolution plan shall take effect, the cl rk with whom the petition was filed shall make a final determination regarding the sufficiency of the number of signatures on the pe· ition and provide timely written otice of such determination to the contact person named in the cover sheet ace mpanying the petition. The contact person or any individual who signed the peti ion may seek judicial review of such determination in a proceeding pursuant to icle 78 of the Civil Practice Law and Rules. Upon the clerk' s determination th t the petition c ntains less than the required number of signatures, the governing b dy of the local government entity to be dissolved shall within thirty days enact a res lution calling for a referendum by the electors on the question whether the el ctor initiated dissolutio plan shall take effect and set a date for such referendum in accordance with subdivision five of this section. 5. The referendum on the question whether the elector initia d dissolution plan shall take effect shall be submitted at a special election to be hel not less than sixty or more than ninety days after enactment of a resolution pursuant o subdivision four ofthis section ... 2 [* 3] In this proceeding, the Village Board resolved at a special meeting c nvened on January 9, 2014, to conduct a special election to be held on March 18, 2014. The propo ition to be voted upon at the special election is whether the dissolution plan adopted by the Village oard shall take effect. The enabling authority for the Village Board's resolution scheduling the vo er referendum derives from GML §785. That section requires a proper petition before such a referen um can be held. There is no authority for a Village Board by resolution without a proper petif n to conduct such a referend m. There is nothing in GML §785 comparable to Town Law §94, ti r example, that allows a municipal entity to proceed upon its own motion to cause a referendum elect on without a petition. 1 Petitione s claim that the petition submitted to the Village Clerk was inade uate both in form and the number of valid signatories to enable a referendum election. The Vil ge argues otherwise. Before discussing the merits of this issue, the Court must first address he threshold issue of petitioner's standing. Of course, as the Village correctly points out, standing is "a thres old requirement for a plaintiff to challe ge governmental action" (New York State Assn. OfNurse nesthetists v. Novello, 2 N.Y.3d 207, 2 11 [2004]). Standing requires "the existence of an injury i fact - an actual legal stake int e matter being adjudicated - ensur[ing] that the party seeking revi w has some concrete interest in prosecuting the action which cases the dispute 'in a form tradition lly capable of judicial resolution. " ' (The Society of Plastics Industry, Inc. v County of Suffol 77 NY2d 761, 773 [1991][citation omitted]). The type of injury conferring standing is one leaned by a "zone of interests" test, which ties "the in-fact injury asserted to the governmen act challenged," and "circumscribes the universe of persons who may challenge the administrativ action" (id). "Simply stated, a arty m st show that the in-fact injury of which it complains (it aggrievement, or the adverse effect upon it) falls within the 'zone of interests,' or concerns, sou ht to be promoted or protected by the statutory provision under which the agency acted" (id.)( ci ions omitted). 1 This section of the N.Y. Town Law reads: §94. Referendum on acts or resolutions of the town board with The town board, upon its own motion, may cause to be su approval of the electors any act or r"solution of such board against c uld be 1led as provided in this chapter and the proceeding there same as if such petition had been filed in accord with the provisions 3 ut petition itted for the ich a petition n shall be the f this chapter. [* 4] The Village alle es that petitioners suffer no injury, if there be any, different han any other member of the public at large. More importantly, argues the Village, the State egislature specifically defined, to quote the Court of Appeals, the "universe of persons w o may challenge the administrative action" in these circumstances" (Society ofPlastics Industry, c. v County ofSuffolk, supra, at 773). That is, after the Village determines the sufficiency o · the petition seeking referendum upon the dissolution plan, GML §785 (4) provides that "[t}he contact person or any person who signed the petition may seek judicial review of such determi ation in a proceeding pursuant to Article 78 of the Civil Practice Law and Rules." (emphasi added). By negative implication, therefore, argues the Village, one who is not the contact person or a petition signatory does not have standing to pursue an Article 78 proceeding. Petitioners argu that they nevertheless have standing, because they signed the initial petition seeking dissolution o · the Village. This Court determines that the petitioners have standing, albeit fo different reasons. In Matter of Ecker v. Town of West Seneca, 87 Misc.2d 322 (Sup. Ct., Erie o. 1976), petitioners challenged the results of a special election authorizing the construction of as Petitione s claim d, among other things, that the statutory procedures notici the election were not timely followed, thus the election was a nullity. The town claimed that the p titioners were without standing. Justice Callahan disagreed: "Addressing the question of petitioners' standing to initiate his suit and as well, the alleged failure of petitioners to establish a specific violatio of their rights, the court finds that the petitions do have standing. While there is no s cific showing o . damages to the petitioners themselves or a specific violation oft eir rights, it is inconceivable that there can be no court review of a special election here there are allegatio s affecting the integrity of legal procedures in the expendi ures of public funds and in the conduct of spe:cial election for that purpose. Public policy considerations dictate that the in:;tant case be subject to court r view" (id. at 325)(citations omitted). Laterthe same year Matter ofEcker was decided, the Fourth Department sp ke in a similar vein in Albert Era BuildingCompanyvNew York State Urban Development Corp., AD2d 337 (41hDep't 1976). The challenge there was to a change order granted to a general contra tor for a public works project. Petitione alleged that the change order violated the competitive bid ing law. A unanimous Appellate Division, speaking through Justice Cardamone, addressed the st ding issue: 4 [* 5] "[S]tanding is held to exist where a failure to accord it would in impenetrable barrier to any judicial 'crutiny oflegislative action ... . A where a citizen, in common with all other citizens, is interested in h of a gene al public nature done, devolving as a duty upon a public refusing to perform it, the performance of such act may be compelled brought by such citizen against a body or officer. ..Any citizen rnandam s proceeding to compel a public officer to do his duty" (id. a omitted). ffect erect an a general rule, ving some act ody or officer ya proceeding ay maintain a 341 )(citations In this Court's view, it should make no difference that the remedy sought in e present case is one of prohibition rather than mandamus. More recently, in Oyster Bay Associates Ltd Partnership v. Town q Oyster Bay, 2013 WL 7176872 (Sup. Ct., Suffolk Co. 2013), a trial level decision, a proposed sal of town property was challenged upon several grounds, among them being that the Town did not u ea method that would ensure that the best sale price was obtained and that the property was not surpl s property so to allow its sale. On these two grounds, the court held : "[T]he interests of justice requires recognition of[petitioner's) standi g. [Petitioner] is a tax-p ying resident of the Tovvn. It is clear that the public int rest would be s bverted if no one were found to have standing to challenge the anned sale of municipal real property. Under the circumstances, even if the petiti ners may not have established direct harm different from that of the public at l ge, they have properly pled standing herein" (id. at 3)(citations omitted). Ecker, Albert Elia Building, and Oyster Bay Associates are predica ed upon the idea that failure to recognize standing would leave possible illegal municipal acti n insulated from any judicial review. Here, however, GML 785(4) does expressly confer standi g upon the petition' s contact person or anyone who signed it. Thus, the cases are distinguishable. owever, Boryszewski v. Brydges, 37 N.Y.2d 361 (1975) suggests a closer look. In Boryzewski, at payer challenged the constituti nality of state budget statutes providing lump sum "lulus" in lieu of xpenses for members of the State Legislature. Writing for the Court, Judge Jones, found a strong blic policy at play in deciding the question of standing: Where the prospect of chall1!nge to the constitutionality of St is effectively remote, it would be particularly repellant today encourag ment to the individual citizen taxpayer is to take an active, interest in his State as well as his local government, to continue to ex 5 te Legislation when every ggressive role ude him from [* 6] access to the judicial process - since Marbury v. Madison, I Cranch L.Ed. 60, the classical means for effective scrutiny of legislative action. The role of the judiciary is i· tegral to the doctrine of separati is unacceptable now by any process of continued quarantine to e persons most likely to invoke its powers" (37 N.Y.2d at 364). 5 U.S.) 137, 2 and executive n of powers. It lude the very Holding that the citizen taxpayer did have standing, the Court state "We are now prepared to recognize standing where, as in the present ase, the failure to accord such standing would be :in effect to erect an impenetrabl barrier to any judicial scrutiny of legislative action. In the present instance it mus be considered wtlikely that the officials of State government who would otherwise the only ones having standing to seek review would vigorously attack legislation un er which each is or may be a personal beneficiary" (id.) By analogy to the present case, it would be "effectively remote" and "unlik ly" that the petition' s designated conta t person and its signato: ies would attack municipal acti n that vindicates the petition' validity. It makes little sense to confine standing in this context o those with the least interest in testing the petition's legitimacy. So too, there is no intimation here that the present petitioners have any agenda other than that advanced in their petition sugge ing collusive or other than adv rsarial litigation (see IA C.J.S. Actions §71). Accordingly, is Court recogmzes petitioners' standing to maintain the instant proceeding under CPLR Articl Turning to the substantive merits of the Article 78 petition, there are hree arguments made against the Village's action to submit the dissolution plan to voter referendu . First, the referendum petition itself is fatally defective in the fom1 it was presented. Second, the re rendum petition fails for want of a sufficient number of signature:; to allow the dissolution plan to to voter referendum. Third, the process of securing petition signatures and the manner it was v idated by the Village Clerk was tainted with serious irregularities. The Court addresses these issu s ad seriatim. The first claim attacking the fonn of the referendum petition is b sed upon its lack of allegedly required content. Ifthis is correct, then it matters not how many sign tures the petition has; it was dead on arrival when submitted to the Village Clerk. GML §785(3) quo ed above requires that the petition be "in substantial compliance" with the provisions ofGML §779. 6 ML §779(3) sets out [* 7] a form of petitio and provides that a petition "substantially comply with" t t form. 2 The statutory form recites the following language before the lines provided for signatur s, printed names, and home addresses. We, the undersigned, electors and legal voters of (insert type of local government entity - town, village, or district) of (insert name of loaal government entity), New York, qualified to vote at the next general or sp cial election, respectfully petition that there be submitted to the electors of (insert pe and name of local government entity proposed to be dissolved), for their appro al or rejection at a referendum held for that purpose, a proposal to dissolve and te minate (insert type and name of local governmem entity). In witness whereof, we have signed our names on the dates in icated next to our signatures. The petition in this case omits the last sentence entirely and reads before th signature lines. We, the undersigned, electors and legal voters of the Vil C unty of Wayne, State of New York, qualified to vote at the next g respectfully petition that there be submitted to the electors of the Vi for their approval or rejection at a referendum, held for that purpose, to whether the elector initiated dissolution plan shall take effect. ge of Lyons, neral election, age of Lyons, he question as Petitioners contend that the omissi.on of the "in witness whereof' anguage wherein the signatories affirm that they signed their names on the indicated dates nullifi s the petition. On this issue, Matter of Hunter v. Campagni, 74 AD2d 1000 (41h Dep't 1980) i both instructive and dispositive. There the Appellate Division dealt with an objection to candidate ' designating petition based upon the fact that some of the petition sheets were altered after their a thentication. Said the Court: "The alteration consisted of inserting the following hand-stamped above the signatures, "In witness whereof: I have hereunto set my h year opposite my signature. ' Although this phrase is used on the fo provided by statute for petition sheet (Election Law §6-132( I)), its omission has b en held not to re ult in i validation of the designating petition (Matter of Cairo v Harwood, 42 NY2d I 098). We agree with Speci.al Term that since the omission of the phrase would not affect the designating petition's validity; similarly, its subse uent inclusion will not i validate it" (id. at 1000-1001 ). 2 GML §779(5) enjoins that "[i]n the matter of form, this section shall e liberally construed, not inconsistent with substantial compliance thereto and the prevention of fi ud." 7 [* 8] Matter ofCairo v Harwood, 42 NY2d 1098 (1977) cited by the Appellate D vision noted that "this case doe not involve either an omission of required information or an omis ion of the declaration of suppo1t and nomination" (citations omi1ted). T is Cowt finds no reason to interpret GML §779 differently than co parable provisions of the State Electio Law. According, the language omission challenge is denie . Further, in line with Matter of Cairo supra, the referendum petition does not omit required formation or omit a declaration of support for the voter referendum on the issue whether the diss lution plan should be approved or rejected. Petitioners also object to the petition on the grounds that the petition heets do "not include proper pagination to allow reasonable and appropriate review against possi e fraudulent activity ' (Petition if3 l ). Petitioners do not cite any . rovision of law that requires pa ination of referendum petitions eets under GML §779, nor has the Court found any. In any event, ispagination has not been hel to be a reason to invalidate a petition absent a showing of frau (Matter of Farrell v Morgan, 112 AD2d 882 [1 st Dep't 1985])("Absent some indication that the g ps [in pagination] are the result of some fraudulent act, it is manifostly unfair to penalize the signato es who, after all, have the greatest stake in the proper operation of the democratic process, for these occasional aberations. "). Petitioners present no proof that any lack of pagination in thi case was intentional, much less fraud lent. Petitioners thoroughly reviewed the referendum pe tion sheets and filed detailed objections. Accordingly, the pagination objection is denied. The second ground attacking the re:forendum petition is not based upo its form but its verity. That is, are the signatories thereto qualified to be counted towards the numb r required to mandate a referendum election on the dissolution plan. In this case, GML §785(3 requires twenty-five percent of the number of electors in the Village of Lyons, or 491 , a numb r not in dispute. The referendum petition on its face contains well more than enough signatures to meet the statutory threshold. The term "elector" is defined in GML §750(7) to 'mean a regist red voter of this state registered to vote in the local government entity subject to ... dissolution p oceedings conducted pursuant to [GML Article 17-A]. The Court has reviewed the Article 78 petif n with its exhibits as well as the Answer and Return of the Village. The Village Clerk has swo 8 under oath that the [* 9] referendum petition contains at least 570 signatures of electors of the Vil age of Lyons, that is, signatures of individuals who at the time they signed the petition were r gistered voters of the Village of Lyons according to the Wayne County Board of Elections S ary Voter Master List dated November 20, 2013. The petition sh(:ets in this case were almost all si ned in the second half of November and the first half of December, 2013; thus, the Village Clerk us d the appropriate data base to make her determination. The Court finds therefore that a sufficient n ber of signatures were contained on the referendum petition so to warrant the Village Clerk's certifi ation thereof pursuant to GML §785(3). T e third ground for attacking the eferendum petition is the manne in which the process was conducted. Petitioners claim that persons with political and/or pee ·ary interests in the preservation of village government may have garnered signatures by means t at could be interpreted as intimidating. The Court can make no finding on this issue, because no etition signatory has stepped f rward to say that was the case, nor is there any sworn allegation f sufficient specificity on this issue that would support further inquiry by way of an evidentiary h aring. Apart from the manner in which the signatures were collected, petitioners contest the mann r in which the Village Clerk ce ified the sufficiency of the rt:ferendum petition. Petitioners contrast the Clerk's assiduousness in reviewing their referendum petition initiating the referend process with what they perceive as the "rubber stamp" approach she took regarding the present petition. The Court' s role here is merely to determine whethe:r the Clerk correctly certified e sufficiency of the referendum petition. Her attitude towards, approach to, and process employe is relevant for present purposes only to the extent it bears wheth,~r a correct result was reached. ccordingly, the Court cannot invalidate the Village Clerk's certification based upon fraud, bias, o other irregularity. T e Court concludes that the petition in this matter must be denied. Dated: February 19, 2014 Lyons, New York Ltl: fl d 6 L 83.:l vL. 9
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