july_2005

In the Matter of the Petition to Incorporate the SUPERVISOR’S Proposed Village of Sagaponack

The following is my decision regarding the legal sufficiency of the petition seeking to incorporate the Village of Sagaponack.

BACKGROUND

On July 3, 2003, a petition to incorporate the Village of Dunehampton was duly filed with my office. On September 15, 2003, after holding two public hearings, I determined that the Dunehampton petition was legally insufficient.

On October 2, 2003, the Sagaponack petition at issue here was duly filed. Because the proposed territory in the Sagaponack petition overlapped a portion of the proposed territory in the Dunehampton petition, and because my decision in the Dunehampton matter was then still subject to judicial review, I deferred any consideration of the Sagaponack petition. On October 14, 2003, that judicial review began when the Dunehampton petitioners commenced an Article 78 proceeding challenging my determination. On December 22, 2003, the Sagaponack petition was amended by the filing of a revised list of “regular inhabitants” with my office.

On March 29, 2004, Justice Jones of the Supreme Court sustained my determination that the Dunehampton petition was legally insufficient. On April 20, 2004, the Dunehampton petitioners filed a notice of appeal from that order with the Appellate Division, Second Department. At about the same time, the Sagaponack petitioners renewed their earlier request that I act on their petition, arguing that the delay, pending a final judicial determination of the competing Dunehampton petition, was prejudicing their incorporation efforts and that, in any event, Justice Jones’ decision was likely to be affirmed on appeal.

Sympathetic to their arguments and seeing no prejudice to the Dunehampton petitioners, I scheduled a public hearing to consider the legal sufficiency of the Sagaponack petition. On May 5, 2004, one day prior to that hearing, the Dunehampton petitioners asked the Appellate Division to enjoin me from taking any further action on the Sagaponack petition, pending a final determination of the legal sufficiency of their petition. After hearing argument, Justice Luciano of the Appellate Division allowed me to proceed with the hearing but stayed any further action, including my issuance of a decision on the Sagaponack petition, until the full court had an opportunity to review the matter.

The public hearing was held on May 6, 2004 at the Topping Riding Club in Sagaponack, at which time speakers were heard both for and against the Sagaponack petition. Written objections to the petition were submitted, copies of which were made available to the Sagaponack petitioners. Thereafter, the petitioners and objectors submitted and exchanged a series of responses, replies and sur-replies, all of which, including affidavits of posting and publication, are on file with the Southampton Town Clerk, as required by Section 2-208 (2)(a) of the Village Law, and are available for review by all interested parties.

On June 10, 2004, the Appellate Division continued Justice Luciano’s stay and, on its own motion, granted the Dunehampton petitioners leave to appeal Justice Jones’ March 29, 2004 decision. On February 22, 2005, the Appellate Division unanimously affirmed Justice Jones’ decision. Petitioners then sought permission to appeal to the Court of Appeals, which motion was denied by order of the Appellate Division on March 29, 2005, and a subsequent such motion was denied by the Court of Appeals on June 14, 2005. The stay of further action with respect to the Sagaponack petition has now expired and, accordingly, I now render my decision on the Sagaponack petition.

OBJECTIONS TO THE PETITION

Section 2-206(1) of the Village Law sets forth the grounds upon which the legal sufficiency of a petition for incorporation may be challenged. Importantly, Section 2-206(3) provides that the burden of proof is on the objectors. The objectors here argue that the Sagaponack petition is legally insufficient for the following reasons, all of which fall within the proper scope of my inquiry under the Village Law:

(1) the limits of the proposed territory contain more than five square miles and, as identified in the petition, are neither coterminus with the boundaries of the chosen School District nor described with “common certainty”, both as required by Section 2-202(1)(c )(1);

(2) the petition, as originally submitted, and as impermissibly amended, fails to include a complete list of the “regular inhabitants” of the proposed territory, as required by Section 2-202(1)(c )(2); and

(3) the petition is not signed by at least 20% of the residents in the proposed territory because of numerous disqualifying errors on the pages containing such signatures.

PETITIONERS’ RESPONSE

In response to these objections, petitioners contend (i) that their choice of the Sagaponack School District as the boundaries of their proposed village and their map showing the boundaries of such district, satisfies the Village Law’s area requirements, (ii) that the amended list of regular inhabitants is properly before the Supervisor and that such list satisfies the Law’s requirements that the proposed area contains more than 500 regular inhabitants, and (iii) that the objections to the sufficiency of the signatures to the petition are without merit.

1. Is the description of the proposed territory in one of the mandatory forms prescribed by Section 2-202(1)(c )(1) of the Village Law and, if so, does it identify the territory’s location and extent with “common certainty”?

If the territory of a proposed village is more than five square miles, as Sagaponack apparently is, it must be (i) coterminus with the entire boundary of a school, fire, fire protection, fire alarm, town special or town improvement district or (ii) coterminus with parts of the boundaries of more than one such district or (iii) coterminus with the entire boundaries of a town. Village Law, Section 2-200(1).

Petitioners have chosen the Sagaponack School District as the boundary of their proposed village and, in their efforts to comply with the statutory requirements, include two maps purporting to depict such district and a separate written description, which references a combination of streets, navigable waters and tax lots.

The Village Law requirements regarding the description of the proposed territory are quite liberal, admitting a combination of formats. Nevertheless, the written description, annexed as Exhibit A to the petition, fails to satisfy some of the several specifically enumerated forms because of its reliance on tax lot lines. Matter of Incorporation of Proposed Village of Kaser, 123 A.D.2d 320, 506 N.Y.S.2d 347. These requirements can be satisfied, however, with “a map showing…the entire boundaries of one or more districts of an entire town”. Village Law Section 2-202(1)(c )(1)(c ).

One of the two maps submitted by petitioners was generated by the Town of Southampton itself, whose Town Clerk advises me is an accurate depiction of the Sagaponack School District, as appears from the Town records. In reliance, in part, on maps prepared by the Long Island Regional Planning Board and the Suffolk County Department of Planning, objectors argue that petitioners’ maps are inaccurate and do not, in fact, reflect the actual boundaries of the Sagaponack School District.

I find that having elected to incorporate an area coterminus with the Sagaponack School District, petitioners have proceeded properly by including in their petition the very map the Town of Southampton uses to depict that area. Moreover, the Superintendent of the Sagaponack School District confirms that the Town map shows the true and complete school district boundary (see Exhibit D to petitioners’ counsel’s response to objections). In the face of these relevant endorsements, I find that objectors have not met their burden of proof on this important issue.

With respect to the additional requirement in Section 2-202(1)(c )(1) that the description identify the location and extent of the territory with “common certainty”, if uncertainties exist in the Sagaponack School District boundaries, they can be resolved by the District Superintendent of Schools who, under the applicable provisions of the Education Law, is the government official charged with ascertaining the correct boundaries of school districts within his jurisdiction.

What is certain is that petitioners have chosen to incorporate an area coterminus with that School District, as provided for in the Village Law, and in depicting that area have relied, as they must, on the records in the office of the official repository for such records. In a somewhat analogous setting, the Appellate Division found that a proposed village boundary described as the New York-New Jersey border satisfied the description requirements of the incorporation law because it was readily ascertainable and thus could be incorporated by reference. Matter of Village of Airmont, 144 A.D.2d 465, appeal denied 73 N.Y.2d 704.

My finding here is further buttressed by contrasting the unambiguous requirement in §2-200(1)(b), that a proposed territory may be incorporated as a village if its limits are coterminus with an existing school district, with the somewhat vague and more general requirement that the description of such territory need only be set forth with common certainty. Accordingly, I find that the map submitted by petitioners meets the statutory test for identifying the territory proposed to be incorporated.

2. Does the petitioners’ list of regular inhabitants meet the statutory requirements?

Section 2-202(1)(c )(2) requires that a list of the names and addresses of the regular inhabitants of the proposed territory be attached to the petition, presumably to demonstrate its compliance with the Village Law’s minimum population requirement of 500 regular inhabitants.

Petitioners original list of regular inhabitants, filed on October 3, 2003, shows 559 names. Petitioners revised list, filed on December 22, 2003, shows 534 names.

Apparently, petitioners revised their original list, compiled prior to my September 15, 2003 Dunehampton decision, to more closely reconcile their position here with the views I expressed in that decision. I rejected the Dunehampton petition largely because of over-inclusiveness, namely, the methodology its petitioners employed in attempting to satisfy the minimum population requirement, virtually eliminated the residency requirement from the statutory definition of regular inhabitant.

As a result, as the Appellate Division observed in affirming Justice Jones order which upheld my decision in the Dunehampton matter, “the record failed to substantiate the allegation of the petition for incorporation that the proposed village territory contains a population of at least 500 regular inhabitants.” Matter of Baker v. Heaney, 15 A.D.3d 577, 578.

Paradoxically, the amended list here is objected to because of its under-inclusiveness, namely, its failure to include some 98 purported regular inhabitants whose names appear on the December 2003 and April 2004 Board of Elections voter registration lists for the Town of Southampton. I say paradoxically because it would certainly have been in petitioners’ interests to expand their list of 534 names in order to more easily exceed the critical 500 threshold number.

Of these 98 names, petitioners concede that two adults (one of whom was a petitioner) and three children were inadvertently omitted from their revised list. As to the remaining 93 names, petitioners demonstrated that all but 40 of them were clearly not regular inhabitants because their addresses were outside the Sagaponack School District, they had previously moved from addresses within the School District, they were deceased or they, in fact, were included in petitioners’ list.

The remaining 40 names presented petitioners with a bit of a dilemma. These individuals apparently all have property within the Sagaponack School District and are either registered voters in the Town of Southampton or minors residing with such voters. Nevertheless, petitioners take the view, consistent with the position they took as objectors in the Dunehampton matter, that such individuals do not reside in the proposed territory because their permanent homes are elsewhere.

In the Dunehampton matter, the Sagaponack petitioners produced various indicia of residence outside Sagaponack, such as addresses on drivers licenses, mailing addresses, addresses for receipt of Town tax bills, New York City voting records and the absence of any local telephone listings, all of which they reference here in support of such view. Consequently, petitioners believed, in good faith, and , again, contrary to their best interests in meeting the minimum population requirement, that these individuals should not properly be included on their list of regular inhabitants.

This view is not inconsistent with my view of regular inhabitants expressed in my September 15, 2003 Dunehampton decision where, in footnote 9 on page 6, I noted that “upon a proper showing, this would exclude renters and occasional occupants, notwithstanding their appearance on a voter registration list”. An analysis of petitioners’ submissions in response to the Breen objections, which submissions, as noted, reference evidence produced in the Dunehampton matter, establishes that such showing has been made here. Accordingly, I find no basis to reject a petition whose amended list of regular inhabitants satisfies the statutory minimum population requirement. Again, I do so even though such list excluded occasional occupants of property in the proposed territory who, for whatever reasons, may have designated such addresses for voting purposes, as well as a de minimus number of inadvertently omitted regular occupants.

Additionally, objectors argue that I should not consider the amended list of regular inhabitants because, among other reasons, the manner in which it was amended “effectively prevent(s) the community from having a fair opportunity to review a complete petition in order to prepare for objections to be submitted at the hearing” (see, Objections of Daniel Breen dated May 31, 2004). I find this argument unpersuasive, particularly where here, objectors had more than four months prior to the May 6 hearing to review the amended list and, indeed, presented objections to it at such hearing (see objections of Sally Breen dated May 5, 2004). Accordingly, in the absence of any statutory prohibition against amending the petition and any prejudice resulting from such amendment, and in view of the latitude courts generally give to the filing of amendments in such circumstances, as well as the holding in Plummer v. Dominy, 233 N.Y.S.2d 2, affirmed 18 A.D.2d 190, which permitted an insufficiency in a petition for incorporation to be cured at or prior to the Supervisor’s hearing, I am of the further opinion that, in assessing the petition’s legal sufficiency, I can consider the amended list of regular inhabitants.

3. Has the petition been duly executed by at least 20% of the qualified residents?

Section 2-202(1)(a)(1) provides that at least 20% of the residents qualified to vote for town officers may petition for incorporation. Section 2-202(e) sets forth the manner in which the petition is to be executed by such residents. Objectors contend that the signature pages submitted with the petition contain numerous errors resulting in the disqualification of many petitioners and thereby rendering the petition legally insufficient. The errors cited by objectors include the incorrect numbering of the signature pages, the defacing of certain signatures, the alleged discrepancy between the name used by a witness in her authenticating affidavit and her registered first name, the illegibility of names and addresses of certain signatories and authentication witnesses, and the use of abbreviated street addresses.

I find no merit to these objections. Neither Section 2-202(e) nor analogous provisions of the Election Law discussed in petitioners counsel’s response (see pp. 15 et seq.) provide support for these highly formalistic challenges. Moreover, objectors, who bear the burden of proof on this as well as the other challenges discussed herein, fail to cite any relevant statutory or caselaw authority for their objections. Neither have the objectors made any showing here of fraud or bad faith, which might independently serve as a basis for invalidating the petition.

CONCLUSION

I find no merit to any of the challenges raised by objectors. In my view, the petition meets, in both form and substance, the critical area and population requirements of the Village Law and, although perhaps not a textbook case of compliance, meets all the other requirements in Article II as well. Accordingly, I find the petition to incorporate the Village of Sagaponack legally sufficient. Further proceedings will be had in accordance with the requirements of Village Law.

On September 18, 2003, I amended my decision to correct certain minor miscalculations.

Paragraph 4 of the Sagaponack petition alleges as a basis for meeting the Village Laws area requirement that the proposed territory is less than five square miles, whereas the signature pages rely, instead, as petitioners now exclusively do, on the territory being coterminus with the Sagaponack School District, an area apparently greater than five square miles. However inexpert this inconsistency may be, I find no basis to reject the petition because of it, nor have objectors been disadvantaged by it.

Education Law, Section 2215 provides that: “A district superintendent of schools shall have the power and it shall be his duty: 1. To inquire from time to time into and ascertain whether the boundaries of the school districts within his supervisory district are definitely and plainly described in the records of the office of the proper town clerk; to cause to be made and filed in the education department a record of such boundaries; and in case the record of the boundaries of any school district shall be found indefinite or defective, or if the same shall be in dispute, then to cause the same to be amended or an amended record of the boundaries to be made and filed in the office of the proper town clerk and in the education department.” (emphasis supplied). Although petitioners have made a credible showing as to the location of the boundary between the Sagaponack and the adjacent Wainscott school district, objectors submit evidence that a small portion of such districts, between Parsonage and Hedges Lanes immediately west of Town Line Road, may be in dispute. If so, that dispute can be resolved by the district superintendent, as noted above. Surely, the existence of any such dispute should not preclude petitioners from electing an area coterminus with a school district that has existed for more than 130 years.

Objectors also cite the Airmont decision and others which refer to the need for “strict compliance with the descriptive formats contained in Village Law §2-202(1)(c )(1)(a-c)” (see p. 466 of Airmont). However, petitioners’ map format is, in fact, in strict compliance with such provisions and, moreover, none of the cases cited deal with a territory coterminus with the entire boundaries of a school district.

As set forth in Volume 1, §238 of McKinney’s Cons. Laws of N.Y., dealing with the legal interpretation of statutes: “It is a well established principle in the construction of statutes that, whenever there is a general and a particular provisions in the same statute, the general does not overrule the particular but applies only where the particular enactment is inapplicable.”

A review of the legislative history of the statute’s population requirements suggests that the §2-202(1)(c)(2) requirement of a list of the names and addresses of the regular inhabitants may have been inadvertent. In 1964, the Legislature recodified the Village Law and, in a memorandum relating to such recodification, observed that the amendment provided for the “[d]eletion of the requirement that the petition for incorporation state the number of inhabitants of the territory sought to be incorporated.” (See Memorandum relating to L. 1964, c. 756). Accordingly, §2-202(1)(b)(3) was changed from requiring “the number of regular inhabitants of such territory” to “an allegation that such territory contains a population of at least five hundred regular inhabitants”. However, §2-202(1)(c )(2) of the amended statute still required a list of such inhabitants, a requirement that may have inadvertently failed to track the change in §2-202(1)(b)(3).

Section 2-200(2) defines regular inhabitants as including “…all persons residing in the territory proposed to be incorporated except such persons who themselves, or who are persons under the age of eighteen years residing with persons who, maintain a residence outside such territory which is used as their address for purposes of voting.” (emphasis added)

As appears from the attachments to petitioners’ counsel’s June 8 and June 14 , 2004 submissions, 44 of those named in the Breen affirmations either have addresses in the Hamlet of Sagaponack but outside the boundaries of the School District or no longer have homes in the Town of Southampton, 6, in fact, are listed, 2 are deceased and 1 is simply unaccounted for.

Although there may not be complete symmetry, the Sagaponack petitioners and Dunehampton objectors appear to be essentially the same. Similarly, the principal Sagaponack objectors appear to be part of the core group of Dunehampton advocates.

Although Matter of Elevitch v. Colello, 168 A.D.2d 681, 563 N.Y.S.2d 680 and other cases cited by objectors have referred to the need for a complete list of regular inhabitants, their factual setting is not disclosed. Significantly, no requirement of completeness appears in the language of the statute nor, as discussed above, does the context of the present dispute suggest the need for such completeness. Further, as the differences in the several voter registration lists submitted by the parties demonstrate, the actual number of bona fide regular inhabitants is a moving target, thereby making the compilation of a complete list a practical impossibility. I find nothing to the contrary in the Appellate Division’s affirmance of Justice Jones’ March 29, 2004 decision in the Dunehampton matter. The inaccuracies in the Dunehampton list undermined the veracity of that petition’s allegation that Dunehampton contained a population of at least 500 regular inhabitants. Any “inaccuracies” here have no such consequence.

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