Sunday, February 10, 2008
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Another Paul Feiner initiative to make Greenburgh the most open government in the United States!
Be part of the Dialogue...participate...tell us what's on your mind...!
The views expressed in this blog are the personal views of the participants who post comments on the blog and are not those of the town, town employees or town government. The Supervisors views are his alone.
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- APPELLATE DIVISION REVERSES TAXTER RIDGE CASE
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February
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23 comments:
Who will be making the presentation.????????
Do we have to bring a lie detecting machine with us?.
Dear Mr. Samis
Please do not miss this meeting.
You are the only one who could put two and two together if they are stating the truth.
They have lied up to now .Is this the first show down?
run samis run
This was not a comment made by Samis. Call Chief Kapica!
But, come or watch tonight's Library roast.
There will also be a public hearing about disbursing WestHelp procceds to the Fairview Fire District. I cannot attend, but I have asked that my opinion be read into the record.
Dear Members of the Town Board:
The New York State Comptroller concluded in 2006 that the Town of Greenburgh’s previous disbursements of the proceeds from WestHelp to the Valhalla School District violated the New York State Constitution. The comptroller never opined about the legality of disbursing WestHelp funds to the Fairview Fire District as it wasn’t asked to do so. It would seem to me that the same rules would apply to the Fairview Fire District, and I recommend that Greenburgh Town Counsel seek a formal written opinion from the NYS Comptroller and/or the NYS Attorney General before any additional WestHelp funds are disbursed to the fire district.
As a former commissioner of the Fairview Fire District, I have a great admiration for its leadership and the firefighters who protect our property and ensure our well-being. In addition, I consider Chief Robert Mauro, District Clerk Thelia Wade and the commissioners as friends. My personal feelings, however, do not preclude me from opposing this allocation, as it appears to be in opposition to state law. Just because something sounds like a good idea doesn’t make it legal.
The comptroller in his report outlined a number of steps that the town could take to make the Valhalla agreement work. It seems that they would also apply to this situation. In short, the comptroller said the town may seek to amend the state constitution to allow the funds to pass through to Valhalla, or it could renegotiate the agreement with Westchester County to have the proceeds paid directly to the school district.
Have you asked Sen. Andrea Stewart-Cousins or Assemblyman Richard Brodsky to introduce such legislation? Per the second option, have you taken steps to renegotiate the agreement? I suspect, and hope, that the answer is no to both.
Albany rarely passes a budget on time, so it is unlikely that they would address, let alone pass, legislation that would negate a key protection provided by government, namely that one group not be favored over another. On the second matter, it’s generally a bad idea to turn down revenue, particularly when residents have suffered under a near-30% rise in their taxes. The net effect of such an action would be to raise everyone’s taxes by the amount of the revenue, although the residents of Mayfair-Knollwood would in essence receive a school tax credit and those in the hamlet of Valhalla would receive a gift from Greenburgh.
If you had taken these steps to legalize the disbursements to the Valhalla school district, as outlined by the comptroller, we would not be spending precious time discussing the legality of doing the same for the Fairview Fire District. If you choose not to follow the comptroller’s first two recommendations, I would urge you to implement the last one, namely put the money in the town budget and use it for a town-wide purpose. Thank you for your consideration.
Respectfully,
Terry Williams
We have someone from the town overseeing the library construction ,may I ask what is he checking out.
After last night meeting we can truthfully say that he does not know what is going on.
Thanks to Krauss and Samis a lot of things were put before the representatives of the construction company and to tell the truth the answers were not being answered in the right manner.
What are we paying for?????
Regula does not know which end is up.
Why did the board rely on this man to oversee such a large project?
From what I see he can't even handle the job that he has {highway and sanitation}.
Paul you should start making some big changes now.
Why are you waiting for some dept. heads to retire,this will only mean that we the taxpayers will have to pay more in retirement monies
Wake up they are taking your residents for a good ride listening to their blues.
We need new blood in key positions,like highway,police and parks.
and we need juettner out asap. she is worse than a failure. she is a disaster.
samis found her like a proverbial deer in the headlights.
juettner must be defeated in 2009 if she chooses to run.
It will be interesting to see if the Library will be finished this year. What we may eventually learn is that most of their clients/borrowers/readers have gone elsewhere. It will also be interesting to see what $19.8 was scheduled to buy a few years ago and what finally $19.8 will buy when this monolith is finished. Of course the Library Board is looking for grants to add to its appeal, but my sense is that those grants should be used to lower its final cost. Kudos to Samis and his persistant follow-up. Even Krauss showed that he has somewhat of a brain. That was the big surprise.
Thank you, 10:34, somewhat of a brain is better than no brain at all.
It's clear to even tiny brain me, that you like Hal better.And, I'm glad I helped spice up your anonymous life by surprising you.If I can be of further assistance, please post.
Thank you, 10:34, somewhat of a brain is better than no brain at all.
It's clear to even tiny brain me, that you like Hal better.And, I'm glad I helped spice up your anonymous life by surprising you.If I can be of further assistance, please post.
I was so overwhelmed by your "compliment" that I clicked twice. I guess 10:34 will be retires.
There's more!
The hastily prepared November 2004 $19.8 referendum budget also included major construction items that I never got around to last night because of time -- time that was wasted because the construction team had great difficulty in giving a straight answer to a simple question.
The "revelation" of an amended site plan (note the time out and sending in the defense) has all the earmarks of a clandestine changed zoning map by those wonderful folks who brought you the Dromore debacle.
To be fair, the elimination of these following items was something I urged from the start so that the Trustees agreed to this is commendable.
But when they were eliminated, their estimated cost survived and thus without having to build them, it left more money in the pot to be wasted on the other areas.
And I'm not talking about things like the fewer parking spaces, the smaller, unbanked auditorium, the lack of a cybermobile enclosed shelter and the many other obvious and not-so obvious features that could be listed in the quality downgrade column.
What I'm talking about is shown right at the top of Triton's estimate under new construction and it refers to the original concept to add an additional floor (mezzanine) so that patrons could be further tortured by needing to appear on three floors to find a book. Thus, the mezzanine was dropped because they decided it was too expensive but left its cost behind as part of the budget.
Mezzanine Construction $600,000
Curved Roof at Mezzanine $112,000
No mezzanine means no expenditure of $712,000. So that unspent money disappeared into the balance of the project in order that they can still insist that the project is on budget.
You know I've got more to unleash but like the Library's team of experts, I'm delivering the bad news a dribble at a time.
And Ed, whatever they say, don't feel "blue" over it.
The library expansion was a political gambit that cost Weinberg, Bass and Barnes their seats. I assume it will cost one or two others. The question posed by Samis and others, on this blog and in the Town Board chambers, exposed the padding that went into the cost estimate process. But all in all they wanted $19.8 million for the job and they will get that amount, one way or another, and whether their original plans are fulfilled.
The library will be eventually completed, people will return, the interest and principal will be repaid, and future generations will have little clue how this all was accomplished. Unfortunately the increased maintenance costs will be with us and the long-term needs of a bigger edifice will be a question that future generations will ponder.
As the project moves towards its inevitible completion, the Town will have to deal with the more pressing matter of declining ratables and budget creep. I look forward to seeing the Town put into place a "growth" plan that can encourage investment in its commercial zones.
Richard J. Garfunkel
the tax burden on unincorporated greenburgh just went up as the appellate division just ruled that the costs associated with taxter ridge can only be allocated to taxpayers in unincorporated greenburgh.
the rules of the universe have been repealed.
the villages now have a free lunch.
enjoy.
Where is your proof of this? Tell us the web page where we can read this decision.
I can get you started.
www.nycourts.gov/reporter
You're looking for
index number 10944/03
Robert B. Bernstein v
Paul J. Feiner, etc, et al
decision on February 13.
Decided on February 13, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
ROBERT A. SPOLZINO, J.P.
STEVEN W. FISHER
HOWARD MILLER
MARK C. DILLON, JJ.
2005-03677 OPINION, ORDER & JUDGMENT
2005-06091
(Index No. 10944/03)
[*1]In the Matter of Robert B. Bernstein, respondent,
v
Paul J. Feiner, etc., et al., appellants.
APPEALS by Paul J. Feiner, as Town Supervisor, Town of Greenburgh, New York, and the Town of Greenburgh, in a hybrid proceeding pursuant to CPLR article 78, alleging, inter alia, that they failed to perform a duty enjoined upon them by law, and action to enjoin them from acquiring any portion of the property known as Taxter Ridge, from (1) so much of an amended order and judgment (one paper) of the Supreme Court (Richard A. Molea, J.), entered February 17, 2005, in Westchester County, as granted that branch of the petition which was for a judgment declaring that Town Law § 232 prohibits the Town of Greenburgh from financing the cost of acquiring property known as Taxter Ridge for parkland by imposing a tax solely upon property owners residing in the unincorporated area of the Town of Greenburgh, and (2) so much of an order of the same court entered May 6, 2005, as, upon reargument, adhered to its original determination.
Timothy W. Lewis, Town Attorney, Greenburgh, N.Y. (David R. Fried and
Richard L. Marasse of counsel), for appellants.
Robert B. Bernstein, Hartsdale, N.Y., respondent pro se.
Keane & Beane, P.C., White Plains, N.Y. (Richard L. O'Rourke of
counsel), for Joseph Bova, amicus curiae.
SPOLZINO, J.P.These appeals concern the allocation of the cost of a park that is located in the unincorporated area of the Town of Greenburgh. The park is open to use by all Town residents, both those who reside in the unincorporated area of the Town and those who reside [*2]in its incorporated villages. Nevertheless, the Town has imposed the cost of the park only upon the taxpayers of the Town's unincorporated area in accordance with its understanding that special legislation applicable only in the Town of Greenburgh requires that the cost of the park be so allocated.
The petitioner, who is a resident of the unincorporated area of the Town, contends, and the Supreme Court agreed, that since the park is open to all Town residents, its cost must be borne by all of the Town's taxpayers. This result would be correct in the absence of the special legislation upon which the Town relies. It is inconsistent, however, with the terms of that special legislation, which directs the manner in which park costs must be allocated in the Town.
While it is true that compliance with the special legislation requires the Town to exclude village residents from parks for which they are not paying, the Town's failure to do so is not at issue here. The petitioner challenges only the allocation of the cost of the park, not its use. Since that allocation is the only issue before us, and the manner in which the allocation has been made is in compliance with the mandate imposed by the special legislation, we reverse the amended order and judgment insofar as appealed from and dismiss the petition.
The park in question is known as the Taxter Ridge Park Preserve. The park was purchased in 2004 through the joint efforts of the Town, the County of Westchester, and the State of New York, each of which contributed one third of the $10.9 million purchase price. Apparently as a consequence of the State and County contributions, the park is open to all residents of the State of New York. The Town's share of the purchase price was to be paid, however, through taxes imposed solely on the taxpayers in the unincorporated area of the Town.
Ordinarily, the cost of parkland that is for the benefit of all the residents of a town is borne by all of the town's taxpayers (see Town Law § 232). The special legislation in issue (L 1982, ch 891), known as the Finneran Law after its Assembly sponsor, provides that in the Town of Greenburgh "all costs . . . of any public park . . . shall be raised by the levy of a tax upon the lots and parcels of land within said town located in the area outside of incorporated villages" (L 1982, ch 891, § 2) (emphasis supplied). The statute further provides that, subject to an exception to allow for compliance with the terms of federal grants, such parks "shall . . . be restricted in use to residents of said town residing in the area of said town outside of incorporated villages" (id.) (emphasis supplied). The statute provides that the park may be opened to village residents, and its cost imposed on village taxpayers, only if the board of trustees of the village determines by resolution, subject to permissive referendum, that it is "in the public interest of the residents of such incorporated village to use the public park" (L 1982, ch 891, § 3). There has been no such resolution here.
The Finneran Law thus establishes, to the exclusion of the general rule, that, except where a federal grant is involved, "all costs" for parkland in the Town will be paid by the taxpayers of the unincorporated area and the use of the park will be limited accordingly, unless a village government chooses to provide for participation by its residents and taxpayers. Since there is no federal participation here, and no village has chosen that its residents shall use, and its taxpayers pay for, the park, the Finneran Law required that the Town allocate the park's cost as it did.
This reading of the Finneran Law is confirmed by the legislative history of the law and the explicit findings made by the Legislature in adopting it. The Finneran Law was enacted in response to Incorporated Vil. of Ardsley v Town of Greenburgh (55 NY2d 915), in which the Court of Appeals held that absent the creation of a park district or joint action with one of the villages, the Town could not lawfully acquire parkland for the benefit of only the residents of the unincorporated area of the Town and that the cost of any park acquisition is necessarily a town-wide charge. The stated purpose of the Finneran Law was to overturn that result and "to continue the town's aforesaid established procedure" (L 1982, ch 891, § 1). That "established procedure" was explicitly found by the Legislature to be as follows: "for at least the past twenty-five years, and for as long as can be [*3]determined by a review of public documents, the [t]own of Greenburgh, Westchester [c]ounty, has raised all capital and operation and maintenance costs of public park, playground and recreation facilities by the levy of a tax upon the lots and parcels of land located within said town located in the area outside of incorporated villages" (L 1982, ch 891, § 1). It is this "established procedure" that the Town followed here.
The Supreme Court nevertheless essentially treated the Finneran Law as optional, holding that having effectively chosen to open the park to all Town residents by entering into contracts with the State of New York and County of Westchester requiring that the park be open to all residents of the state, including residents of the incorporated villages, the Town was required to impose the cost of the park on all of the Town's taxpayers, including those in the incorporated villages, in accordance with the general rule established in the Town Law. The statutory language does not permit such a result. The language providing for the imposition of the cost on the residents of the unincorporated area is mandatory, not permissive. The permissive reading given by the Supreme Court would, moreover, render virtually meaningless the provision of the law that permits a village to opt into the use and cost of the park, since under such a reading the Town would be free, even without a resolution of the village board, to impose the cost of the park on village taxpayers simply by entering into a contract similar to those employed here.
It is true that the Finneran Law provides, with vigor equal to that of its provisions regarding the allocation of cost, that Town parks may not be used by residents of the incorporated villages that do not choose to bear their share of the parks' costs. Even in light of this provision, however, the fact that the Town has effectively opened the parks to residents of the incorporated villages is not a basis upon which the Town may alter the allocation of costs mandated by the Finneran Law. Unlike the situation presented by a federal contractual obligation, the Finneran Law admits of no exception for state or county contracts. Since the Town cannot contract away compliance with its statutory obligations, those contracts cannot effect a departure from the terms of the statute that define the allocation of the park's cost.
Contrary to the petitioner's argument, the allocation of park costs effected by the Finneran Law is not unconstitutional on its face. The Legislature has broad discretion in determining the manner in which the burden of the cost of public facilities will be allocated (see Matter of DuBois v Town Bd. of Town of New Paltz, 35 NY2d 617, 623; Matter of Association of Bar of City of N.Y. v Lewisohn, 34 NY2d 143, 156). The only limit on this discretion is that there be a rational basis for the allocation that neither discriminates on the basis of a suspect class nor impairs a fundamental right (see Miriam Osborn Mem. Home Assn. v Chassin, 100 NY2d 544, 547; Port Jefferson Health Care Facility v Wing, 94 NY2d 284, 289-290, cert denied 530 US 1276; Trump v Chu, 65 NY2d 20, 25). The Finneran Law satisfies this requirement. Under its terms, village taxpayers pay for a Town park only when the village Board of Trustees elects that village residents will use the park.
Any constitutional challenge to the Finneran Law as applied here, moreover, must fail for the simple reason that the Finneran Law has not been applied, at least insofar as it concerns access to Taxter Ridge Park Preserve by village residents. Although the Finneran Law clearly requires the Town to deny access to the park to residents of the noncontributing villages, the Town has chosen not to do so. The reason for the Town's decision in this regard is readily apparent: two-thirds of the cost of acquiring the park came from county and state funds - funds which would not have been available if access to the park were restricted to residents of the unincorporated area of the Town in accordance with the Finneran Law. Thus, instead of burdening the taxpayers of the unincorporated area in the amount of $10.9 million for a restricted park, the Town has chosen to require that they pay one-third of that amount for an unrestricted park. [*4]
While the petitioner could have brought this proceeding to compel the Town's full compliance with the Finneran Law by requiring that the use of the park be restricted to residents of the unincorporated area of the Town, that is plainly not the remedy he seeks. For obvious financial reasons, the petitioner is not asking that the Finneran Law be enforced. If it were, the absence of a resolution by any village board of trustees would require the exclusion of village residents from the park and result in the loss of state and county funding, since those entities will, presumably, not agree to fund the purchase of a restricted park. Thus, instead of embarking on a course that would substantially increase the tax burden on those, like himself, who reside in the unincorporated area of the Town, the petitioner is demanding not that the Town enforce the Finneran Law by excluding village residents, but that it violate the Finneran Law by imposing a tax for the purchase of the park upon the residents of incorporated villages whose Boards of Trustees have not passed the requisite resolutions.
Thus, while the petitioner complains of the imposition of unequal tax burdens on persons who equally receive the benefits of the park, the source of the inequality at issue—the use of the park—is not before us. Since the Finneran Law clearly mandates that, in the absence of exceptions not applicable here, the cost of the park be imposed solely upon the taxpayers of the unincorporated area of the Town of Greenburgh, the respondents prevail. Accordingly, the amended order and judgment entered February 17, 2005, is reversed insofar as appealed from, on the law, that branch of the petition which was for a judgment declaring that Town Law § 232 prohibits the Town of Greenburgh from financing the cost of acquiring property known as Taxter Ridge for parkland by imposing a tax solely upon property owners residing in the unincorporated area of the Town of Greenburgh is denied, the petition is denied in its entirety, and it is declared that the Town of Greenburgh has correctly allocated the cost of the park to the residents of the Town's unincorporated area (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901); the order entered May 6, 2005, is vacated, and the appeal from the order entered May 6, 2005, is dismissed as academic in light of our determination of the appeal from the amended order and judgment.
FISHER, MILLER and DILLON, JJ., concur.
ORDERED and ADJUDGED that the amended order and judgment entered February 17, 2005, is reversed insofar as appealed from, on the law, that branch of the petition which was for a judgment declaring that Town Law § 232 prohibits the Town of Greenburgh from financing the cost of acquiring property known as Taxter Ridge for parkland by imposing a tax solely upon property owners residing in the unincorporated area of the Town of Greenburgh is denied, the petition is denied in its entirety, and it is declared that the Town of Greenburgh has correctly allocated the cost of the park to the residents of the unincorporated area of the Town of Greenburgh, and the order entered May 6, 2005, made upon reargument is vacated; and it is further,
ORDERED that the appeal from the order entered May 6, 2005, is dismissed as academic in light of our determination of the appeal from the amended order and judgment; and it is further,
ORDERED that one bill of costs is awarded to the appellants.
ENTER:
James Edward Pelzer
Clerk of the Court
So the appeals court said that the town violated the law by buying Taxter Ridge with the condition that it be open to everyone, and that Bernstein is a wise guy who is trying to get something he isn't entitled to instead of trying to get what he is entitled to.
Isn't that what the villages have been saying right along?
Dear Garfunkle,You have many connections in the right places.start talking about a windmill farm on the Taxter Rd property.
This will help many residenrts with their bills.
The taxes are high,fuel is hitting the ceiling and the electric company is now looking for a hike also.
Need I say more as to what kind of assistance is need by all Here in Greenburgh.
Check the news tonight Friday on channel 4 ,where they will be showing windmills being proposed in New Jersey.
Paul this is something that you should be looking into.
Boy do I have the right place that is opened to the Hudson where we would get plenty of wind to operate windmills.THAXTER RD.
Please note the following about a recent meeting regarding the use of solar energy.
The Greater Southern Dutchess Chamber of Commerce February Membership Meeting
"The Solar Energy Consortium"
Wednesday, February 6, 2008
Special Guest Speakers
Come join us and learn about TSEC, The Solar Energy Consortium! TSEC
is a not-for-profit solar research and development initiative, driven
by industry, in collaboration with public, private, academic,
environmental, labor and economic development partners. TSEC's goal
is to make solar energy usage more pervasive in New York State by
creating the market, driving the research, and attracting the
industry. To date, TSEC has been
awarded over $5.7 million in funding to attract and grow a solar energy industry in the Hudson Valley.
The Supervisor has been at the forefront of activity that has tried to focus on alternate energy sources in this ongoing climate of high enrgy bills. Recently international oil markets reached $100 barrel, before slipping back in to the high $80 mark. As of this Friday oil again bounced up into the mid $90's which reflected the ongoing problems of refining, international strife and the internal politics of places like Venezuela.
Therefore without a coherent national policy on energy, locales must continue to take the lead. Small pilot projects like the one we have at Town Hall have their place, but the average homeowner is still being economically challenge by high energy bills. Therefore, we as a community must start to attack this problem on by embarking on a two-front war. The first front is two start lobbying our state officials to have Albany, and thus Washington start to grant tax incentives for companies and individuals to seek ways to not only conserve but to seek alternates to fossil fuel. The second front is for our local officials to start exploring areas where wind farms and solar installations will start making a positive impact on reducing our conventional dependence on imported oil.
As a reminder, in 2004 I brought this to the attention of the Town Board, and the then Town Board ignored my suggestions. In part, I was criticised by Mr. Robert Bernstein, who mocked the suggestion that wind turbines could be placed on Taxter Ridge. Of course, I didn't mention that park specifically.
Wind Turbines an Alternative to
Fossil Fuels
Message
To
Town of Greenburgh Parks and Recreation Advisory Board
May 5, 2004
Richard J. Garfunkel
Today we face an ongoing problem regarding the usage of fossil fuels. Obviously, from a market perspective the price of oil seems to be on an upward path, not destined to be ameliorated or tempered by positive market factors, short of a recession, for the foreseeable future. Also the dependency of overseas suppliers adds to our trade deficit and exacerbates our ongoing political problems. Places like Nigeria, Venezuela, Saudi Arabia, Iraq and the like are in the near term and long term, potentially unstable. Today Iraq and Venezuela are prime examples of nations with huge reserves that are currently under jeopardy for totally different reasons.
Therefore from a geopolitical perspective the search for alternate and renewable resources should be paramount on the minds of both the government and the public it serves. Wind power is an increasingly significant renewable energy resource, producing no environmental CO2 emissions. The wind turbine collects kinetic energy from the wind and converts it to electricity. There are three bladed types that are operated “upwind” and two-bladed types that operate “downwind.” Wind turbines are manufactured by many companies around the world and this country, and come in all sizes with different though similar configurations. They are engineered to fit into the power grid, and they can be easily adapted to our current electrical system. From an environmental perspective their noise levels are equivalent to quiet bedroom at night. In a sense they would be 30%quieter than listening to a car travel by at 40 mph from a distance of 100 meters. Wind turbines can be extremely cost affective depending on the height of the tower and the constant speed of the wind. As per example a small wind turbine typically lowers one’s electricity bill between 50 and 90%. A typical wind turbine starts produce power at 6 mph. Of course, depending on the size and its efficiency, the payment may take a varied amount of time. Generally it takes 8-9 mph average speeds to make one’s site quite viable.
Presently the Town of Greenburgh, which includes villages and unincorporated areas, also has a long stretch of land that parallels the Hudson River. This may be the appropriate time to look carefully at some of the parkland, neighborhoods with wooded buffer zones and the Hudson River frontage as places where wind turbines could be placed.
As per example; in Searsburg, Vermont, 11 wind turbines, which cost $11 million to build, with $4 million from the DOE, produces 6 megawatts- that provides the energy for 2000 homes. Of course these are large “wind turbines” and they serve different, but similar ends.
My suggestion is that we form a small working committee to establish a “task force” on alternative sources of energy. This “task force” should not be limited to wind turbines, but explore solar energy, hybrid cars, and conservation.
Also, please note that yesterday's Journal News reported on a problem of leakage at Indian Point's nuclear facility. On my Wednesday Advocate's Show, of February 6, 2008, one can listen to my interview with Ms. Michel Lee, on http://advocate-wvox.com, talking about Indian Point and its inherent problems. Indian Point delivers 2000 MWTs to the region, and one day, terrorist plots aside, it age and internal vulnerability will have to be addressed on a substantive basis.
Richard J. Garfunkel
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