Given Mr. Feiner’s campaign against incorporation, the decision, which was expected, now means that the issue of whether and when Edgemont will vote will be decided by the courts. At the same time, supporters of incorporation say they now intend to circulate a new petition which will expand existing borders to include all commuter parking now offered at the Hartsdale Train Station.
Mr. Feiner said even though the current petition had more than a thousand valid signatures, it failed to comply with state law requiring that the proposed territory of the village be described with “common certainty.”
State law requires for “common certainty” that the petition include a metes and bounds description of the proposed village. The petition used the metes and bounds of the Greenville Fire District, as authorized and approved on July 2, 1923 by the Westchester County Board of Supervisors.
Mr. Feiner said that particular metes and bounds description – which hasn’t changed in 94 years — wasn’t good enough because he claimed there was a discrepancy in the borders based on an 1899 map.
No court in New York has ever invalidated an incorporation petition based on a metes and bounds description that was adopted by a government agency to create a district within a town, and Mr. Feiner’s opinion cites no legal authority for doing so here.
Mr. Feiner also said that even if the description of the borders was okay, the petition did not have enough signatures to be valid. He reached that conclusion by first invalidating a total of 290 otherwise valid signatures based on six other signatures he said did not match the signatures on file with the board of elections. He then jacked up the minimum number of signatures required by adding to the list of “regular inhabitants” qualified to vote for town officials people who were on a recent voter registration list.
But in his apparent zeal to find fault where none existed, Mr. Feiner failed to remove from that list those who had either died or had moved away.
“Mr. Feiner’s decision to invalidate nearly 300 signatures based on six signatures he found did not match signatures on file with the board of elections is classic voter suppression coming from someone who clearly has a problem with democracy,” said ECC president Bob Bernstein. “It is also entirely inconsistent with current court rulings in this state.”
Mr. Bernstein said to invalidate those 290 signatures requires proof of fraud by “clear and convincing evidence” and all Mr. Feiner had before him were six signatures that an objector said did not match. “While these signatures might look different or questionable, not one person testified that he or she did not sign the petition or that his or her signature was forged,” Mr. Bernstein said.
“Mr. Feiner conveniently forgot that the burden of proof here was on the objectors. If they wanted to prove there was this kind of fraud, they had to do so in the form of written objections or with evidence at the two days of hearings Mr. Feiner held. But they did nothing of the sort. In fact, they held back most of the legally insufficient evidence they did have, so no one would be in a position to show that it was meritless. By stretching to disenfranchise the rights of Edgemont residents based on such flimsy grounds, Mr. Feiner has become the poster child for voter suppression in this country.”
Mr. Feiner also said the list of “regular inhabitants” was not “reasonably inaccurate” because it failed to include people identified on a voter registration list, but here too Mr. Feiner failed to remove from that list those voters who had either died or moved away.
Mr. Feiner also said the list failed to include the names of “children” — but case law states that the purpose of the “list” of regular inhabitants is to determine who is included in the pool of individuals qualified to vote for town official so that the actual number of signatures needed to satisfy the 20% minimum required could be determined. That list obviously does not include children because they cannot vote. Mr. Feiner’s “decision” overlooked that law.
The Edgemont Incorporation Committee dismissed Mr. Feiner’s arguments as further efforts aimed at voter suppression and said it would file a lawsuit to challenge his findings.
By law, the EIC has 30 days, i.e., until June 9, 2017, to bring such a challenge. The EIC also said it was considering whether to bring federal claims against Mr. Feiner and other town officials for illegally using town funds and town personnel to suppress the First Amendment rights of Edgemont residents to petition their government for a vote on how they wish to be governed.
If the EIC is successful in its legal challenge, a vote would likely take place in the fall. The EIC also said it plans to circulate other petitions including one that would allow the proposed village to expand beyond the borders of the Greenville Fire District to acquire all of the commuting parking spaces currently offered by the Hartsdale Public Parking District. In that way, the Village of Edgemont would be able to give Edgemont residents the right to park anywhere at the Hartsdale Train Station it currently may park.
Using Greenville Fire District borders, without an agreement from the Parking District, Edgemont residents would only be able to park in the spots within village borders. While there would be enough spots within such borders to provide Edgemont residents with the parking it needs, expanding the map to include all other parking for commuters at the station would automatically give Edgemont residents the same choice of where to park that they have now.
In the meantime, the Town today released documents showing that certain elected and appointed Town officials had been working with certain Edgemont residents to undermine Edgemont’s incorporation efforts since the petition was filed. The Edgemont residents working with the town officials on this effort include Hugh Schwartz and Michael Golden, both of whom serve on the Town’s Planning Board, as well as Margaret Goldberg, who is executive director of the Greenburgh Nature Center, whose salary is paid, in part, with town funds. Ms. Goldberg appears on a list of attendees at such meetings on February 16 and 27, 2017.
Also among those on the list of residents working with town officials is Janet Linn, a partner in the law firm representing both Shelbourne and the Dromore Road developer, who are in litigation over projects that town officials had wanted to see built in Edgemont. Ms. Linn, the wife of planning board member Hugh Schwartz, offered to provide town officials comments on “parking and water, and possibly other topics, which I will get to you this weekend.”
Another Edgemont resident on the list was Martin Payson, the retired lawyer who received secretly received information from the consultants hired by the Town and paid for with town funds, and then used that information in the objection Mr. Feiner relied on for his finding that the proposed borders lacked “common certainty.”
Included in the documents released today was an agreed upon strategy memo Feiner appointee Don Cannon that called on town officials, working with selected Edgemont residents, to mount a coordinated attack on the incorporation efforts. One of Mr. Cannon’s strategies was to get residents to submit a “feelings only letter” in which Edgemont residents opposed to incorporation would talk about “people FEELING threatened, coerced, etc. or my favorite extorted.” (emphasis in text).
Mr. Schwartz has filed three reports with the Greenburgh Police claiming that he or a member of his family has been threatened. Police Chief Chris McNerney, who is a member of the Edgemont task force formed to defeat Edgemont’s incorporation made statements that children in Edgemont school have been bullied about incorporation. School officials said they have no reports of any such incidents having occurred on school property.
The memo also said that for the public hearing on objections to the legal sufficiency of the petition, to be held on April 5, Mr. Feiner would have “responsibility” for “who he wants at hearing.”
The April 5 public hearing ended abruptly after 45 minutes when Mr. Feiner refused to allow anyone to speak in opposition to the objections that had been raised that night. Based on Mr. Cannon’s memo, it appears that Mr. Feiner, who was supposed to be neutral, had actually arranged for each and every one of the objectors to speak that night.
At a town board work session today, Mr. Bernstein told town board members that the involvement of elected and appointed town officials in using town funds and town resources to undermine Edgemont’s incorporation petition could be in violation of New York State Constitution Article VII, Section 8 and Article VIII, Section 1, and cited two New York State comptroller opinions on that issue. Town board members said they were unfamiliar with these opinions and asked for copies which Mr. Bernstein provided to them.