In the end, no one should have been the least bit surprised.
Town Supervisor Paul Feiner turned the April 5 public hearing on the legal sufficiency of Edgemont’s petition to incorporate as Greenburgh’s seventh village into a travesty tonight when he decided without warning that he would allow testimony only from individuals objecting to the petition, but would not let anyone respond to the objections or otherwise show why the objections raised were meritless.
The hearing attracted more than 250 residents, most of whom were supporters of Edgemont’s incorporation. They reacted in anger with shouts of “Shame! Shame!” after Mr. Feiner insisted state law gave him the right to cut off the First Amendment rights of residents to defend the legal sufficiency of the petition. When residents said that was not the law, he abruptly ended the hearing 45 minutes after it began – but not before about a dozen or so objectors all apparently rounded up by the Town — had spoken for the allotted 3 minutes apiece.
People who had asked to speak – but were told they could not — included representatives from the Edgemont Incorporation Committee, who came prepared to answer the objections, and residents who had signed the incorporation petition but said the Towns’ paid private investigators had entered their homes this weekend and tricked them into signing false statements withdrawing their signatures.
Mr. Feiner said he was within his rights under state law to do what he did.
The state law at issue, Village Law Section 2-206(3) states that “[t]estimony as to objections may be taken at the hearing which shall be reduced to writing and subscribed by those testifying.” The law further states that. “[t]he burden of proof shall be on the objectors.”
“By calling for testimony ‘as to objections’ and then requiring that the objectors bear the burden of proof, state law plainly requires testimony not just from those objecting, but also from anyone wishing to defend the petition,” said ECC president Bob Bernstein. “To allow only one side to present evidence, and then to require the town supervisor to decide after hearing only that one side whether the objectors met their burden of proof violates due process and obviously turns the law on its head,” Mr. Bernstein added.
“Needless to say, Mr. Feiner’s behavior tonight set a new low for his flagrant disregard for the First Amendment rights of Edgemont residents to petition their government,” he said.. “After witnessing tonight’s debacle, if anyone was on the fence about Edgemont’s incorporation before, they’re not on the fence anymore.”
For its part, the Edgemont Incorporation Committee said that tonight’s aborted hearing will give the EIC the opportunity to show all Edgemont residents and the rest of the Town how a responsible law-abiding local government is supposed to function by holding its own public hearing during which time it will address each of the objections raised both orally and in writing, and show why they are all without merit.
The EIC said it expects to announce the date, time and location for its own public hearing within the next few days. The EIC said it would turn the results of its own public hearing over to the Town, so that there will be an ample evidentiary record before the Town for a court to order that the petition be certified and the referendum held. However, no one now expects Mr. Feiner even to read the EIC submission, must less consider it.
By law, having noticed the official town public hearing for April 5, the Town is legally permitted to “adjourn” the hearing but must conclude it “within twenty days from the date fixed in the notice of hearing.” Consequently, Mr. Feiner’s public hearing, assuming Mr. Feiner deems it adjourned rather than closed, will continue until April 25, during which time it is possible that written responses to the objections may be submitted.
Mr. Feiner had already twice refused to allow the petition itself to be filed, and it is unclear whether he will even allow written responses to the objections to be submitted, which means the EIC will have to find a way to get them submitted anyway.
The public hearing began tonight with a list of objections read by Janet Linn, the wife of planning board member Hugh Schwartz, and ended with objections read by Joan Gardner, the wife of Town Attorney Tim Lewis.
Ms. Linn is a partner in the law firm that represents Formation Shelbourne, which is seeking approval to build a 94-bed assisted living facility Mr. Feiner wants built in an area of Edgemont not zoned for such use. Ms. Linn’s firm also represents a couple of lawyer brothers who brought a $26 million federal housing discrimination lawsuit against the Sisters of the Blessed Sacrament, a group of cloisered Edgemont nuns.
Mr. Feiner also heard testimony from Bill Stanton, the paid New York City private investigator Mr. Feiner hired at taxpayer expense in the hope of tricking residents who signed the incorporation petition into invalidating their signatures.
Even though Mr. Feiner told CBSNews2 and other television stations that none of those who were tricked had anything to worry about, Mr. Feiner nevertheless refused to let any of them speak. Some had even come with prepared affidavits explaining how they were duped by Mr. Feiner’s investigators. These residents all received emails from Town Attorney Lewis telling them they would not be allowed to speak; they were also not given any opportunity to submit anything in writing.
An Edgemont law professor who attended the hearing noted that former appellate judge Robert Spolzino, who is being paid $50,000 to advise Mr. Feiner on the law governing incorporation petitions, stated that only objections to the petition could be heard and that broader testimony “as to the objections” could not be heard. “If that is the case,” she said, “why was private investigator Stanton allowed to speak, despite the fact that he was not lodging an objection and does not even having standing to lodge an objection (since he is not qualified to vote for town office in the Town of Greenburgh?”
Mr. Bernstein said that Mr. Feiner’s biased behavior shows that the EIC will almost certainly have to ask a judge to certify the EIC’s incorporation petition. By law, Mr. Feiner must issue his decision within ten days after the hearing is concluded. Assuming Mr. Feiner waits the full twenty days, until April 25, to conclude the hearing, as he indicated tonight he would, his ruling on legal sufficiency will have to be issued no later than Friday May 5, and must be filed within the town clerk within five days thereafter. Once the decision is filed, the EIC will have 30 days to commence an Article 78 in state court to reverse Mr. Feiner’s ruling and get the petition certified.
Any other claims the EIC or other Edgemont residents may have against the Town and its officials, including claims for violation of their First Amendment rights, could be brought in a separate action possibly in federal court.