Friday, January 08, 2010

LEGAL PAPERS FILED IN SUPREME COURT--CHALLENGING PROPERTY OWNERSHIP REQUIREMENTS FOR PARKING AUTHORITY MEMBERS

Last year the Greenburgh Town Board appointed Barry Kessler as a member of the Hartsdale Parking District. Mr. Kessler, a former School Board member and long time resident of Greenburgh, was advised by the other 2 members of the Parking district that they would not recognize his appointment—because he did not own property at the time the assessment rolls were finalized (the property was in his wifes name). Mr. Kessler has since obtained a deed and is a property owner. However, the parking district still refuses to seat him. NYS law provides that members of the Town Board have the power to appoint members of the parking district.
Because the parking district will not seat Mr. Kessler – we filed a legal action in NYS Supreme Court today. We are seeking For a Declaratory Judgment Pursuant to Article 30 :
And a Writ of Mandamus Pursuant to Article 78
of the Civil Practice Law and Rules. The following are excerpts from the legal papers we filed today. Property ownership should never be a requirement to participate in government. Spouses of property owners…tenants are deprived of the chance to serve. It should be noted that when I was first elected Town Supervisor I was a tenant. I could serve as Town Supervisor but not as a member of the parking district. This is absurd! At least one former Town Board member was also a tenant at the time of his service to the town.
PAUL FEINER
Greenburgh Town Supervisor

Petitioner contend that the provisions of Section 2 of Chapter 402 of the Special Act establishing the Public Parking District, requiring that a member of the Board of Commissioners of the District own real property within the District, are void, improper and unconstitutional, as they impermissibly discriminate against non-real property owners in favor of real property owners within the Parking District in violation of Article 1, Section 11 of the New York State Constitution, as such property ownership classifications are not rationally related to the achievement of any legitimate state interest.
. In fact, in 1968 the New York State Legislature, by Chapter 767 of the Laws of 1968, subsequently repealed property ownership classifications required to hold office as commissioner in town special improvement districts by amending Section 211 of Town Law (District Commissioners) to eliminate real property ownership of as a qualification for appointment as a district commissioner (See Exhibit F attached; See also Szapiro v. McNichol,
43 A.D.2d 701 (2d Dept. 1973) (Every person who is qualified to vote for a town officer shall be eligible to hold office of district commissioner in improvement district ).
While Petitioner acknowledges that the provisions of Section 2 of Chapter 402 do not overtly discriminate against non-real property owners on the basis of a suspect class (i.e., race or gender) to be upheld against an equal protection challenge pursuant to Article 1, Section 11, there must be some reasonably conceived state of facts and legitimate governmental purpose that provide a rational basis for the legislation’s disparate treatment of real property owners and non-real property owners.
. In this regard, the Public Parking District is solely user supported and generates income only from permit sales and parking meter revenues related to the use of Parking District facilities. Significantly, the Parking District does not derive any tax revenue from real property situate within the District such that the decisions of District Commissioners would disproportionately impact owners of real property justifying legislation favoring property owners over non-property owners.
. Stated differently, the costs of operation of the Public Parking District are assessed only against the users of the Parking District facilities, irrespective of property ownership, and owners of real property within the District are not subject to assessments or charges or solely responsible for liens or delinquencies of the District.
. Thus, there is no rational basis or legitimate governmental purpose justifying the Chapter 402’s property classification and disparate treatment of real property owners and non-real property owners, such that real property owners residing within the Public Parking District qualify for appointment as District Commissioner while resident non-real property owners do not.
Moreover, pursuant to Sections 23 and 23-a of Town Law (Eligibility of Town Officers), even members of the Town Board, the Town’s municipal governing body, are not required to be owners of real property to qualify as electors of the Town, as those property classifications have also been repealed.
Indeed, in Landes v. Town of North Hempstead, 20 N.Y.2d 417 (1967), New York’s highest court ruled that the ownership of land as a prerequisite to holding elective town office was an “invidious discrimination” against non-landowners and constituted a denial of equal protection from the viewpoint of the non-landowner seeking town office and a “dilution” or “debasement” of the franchise from the viewpoint of the voter.
. Similarly, numerous New York State Attorney General opinions have deemed property classifications unconstitutional. See 1998 N.Y. Op. Atty. Gen. (Inf.) No. 98-2 (qualification to vote to dissolve village unconstitutional); See also 1974 N.Y. Op. Atty. Gen. (Inf.) No. 124 (qualification to vote on fire district proposition unconstitutional); See also 1973 N.Y. Op. Atty. Gen. (Inf.) No. 182 (qualification to hold town office unconstitutional) See also 1968 N.Y. Op. Atty. Gen. (Inf.) No. 124 (qualification to hold elected village, fire and special district office unconstitutional); Cf. 1991 N.Y. Op. Atty. Gen. (Inf.) No. 1063 (qualification to vote to establish improvement district not unconstitutional).
. In sum, Respondents are denying equal protection of law to resident non-owners of the Public Parking District by purporting to adhere to provisions in the Parking District enabling legislation which have been deemed constitutionally infirm and contrary to the Equal Protection Clause of Article 1, Section 11 of the New York State Constitution.
For purposes of equal protection review, absent a reasonably conceived and articulated state of facts that could provide a basis for the legislation’s disparity of treatment, the challenged classification may not be upheld against an equal protection challenge. See 41 Kew Gardens Rd. Assoc. v. Tyburski, 70 N.Y.2d 325 (1987).
. Petitioner therefore respectfully request that this Court declare, pursuant to CPLR
§ 3001, that the provisions of Section 2 of Chapter 402 of the Laws of 1950 requiring that Commissioners of the Hartsdale Public Parking District own real property within the District as unconstitutional and (2) compel the Hartsdale Public Parking District to immediately recognize the appointment of Barry Kessler as a Commissioner of the Board of Commissioners of the Hartsdale Public Parking District, effective January 1, 2010, pursuant to CPLR 7804.
There are no questions of fact requiring a determination by this Court.
. Petitioner has no other adequate remedy at law and has standing as an elector and resident of the Town.
No previous application has been made for the relief requested herein.

WHEREFORE, Petitioner demands judgment against Respondents (a) declaring that the provisions of Section 2 of Chapter 402 of the Special Act establishing the Public Parking District, as they relate to requirements that a member of the Board of Commissioners of the District own real property within the District, have been repealed, and/or are void, improper and unconstitutional as they impermissibly discriminate against non-real property owners in favor of real property owners within the Parking District in violation of Article 1, Section 11 of the New York State Constitution; and (b) compelling the Hartsdale Public Parking District to recognize the appointment of Barry Kessler as a Commissioner appointed to the Board of Commissioners of the Hartsdale Public Parking District as of January 1, 2010, together with the costs and disbursements of this proceeding and for such other and further relief as the Court may deem appropriate.

20 comments:

Anonymous said...

Oh hum. More of our tax dollars being wasted. I assume that the Villagers, not to exclude North Elmsford, East Irvington, etc. will all have to pay for this nonsense.

Myndi said...

Stop reacting to every political frustration by taking it personally. Your vindictiveness seems to know no bounds - and until you return to evaluating decisions using the criteria of public benefit and long range good, you must expect the public to be unhappy with your job performance.

Fed Up With Feiner said...

This case along with his case against Yonkers may prove to be his demise. The Town Board had no legal standing to bring this case and hopefully the Court will agree. They are also using taxpayer dollars to bring this case on behalf of a private individual(aka friend of Feiners) -
The Yonkers case is really interesting - he is basing his claim on corruption by elected officials - is he kidding? This from a guy who took campaign money from an indicted strip joint king, who took money from an attorney who has cases before the zoning, planning and Town Boards? He tried to stong arm contributions from Fortress Bible in exchange for a site plan / permit approval? He wrangled $200,000 in contributions to the Town from a developer in exchange for a zoning change? WHO IS CORRUPT?

nutz said...

I'm really hoping the Parking District is armed with the documentation re: Kessler trying to fraudulently to obtain a permit. I'll bet they do.
This will be interesting indeed.

nutz said...

pardon: I'll bet the are

klondike bar said...

the latest valhalla scandal is going viral.

what did beville know and when did she know it?

did beville sit on on discussions regarding the defense of the case?

did feiner,juettner, sheehan and beville commit voter fraud by hiding the lawsuit from the public?

klondike bar said...

and did beville violate the town's ethics code by not publicly disclosing her lawsuit against the the town?

sure looks like it (see ethics code section 570-4 D)

looks like she is unfit to serve the town.

Fed Up With Feiner said...

Another armed robbery in Greenburgh and Feiner has nothing better to do than file frivolous lawsuits?

The parking district will prevail as the sitting board is doing what they are obligated to do which is to respect their oaths of office and uphold the laws of the State of New York. It is not their job to interpret the laws. Feiner and Kessler are in collusion to circumvent the laws and one has to ask why? While Feiner is not a practicing attorney, Kessler is and I am filing a complaint with the NYS BAR as Kessler should know better than to 1) accept this appointment knowing full well he does not qualify and 2) be investigated for colluding with Feiner to transfer only 1% of his property to his name in order to circumvent the law while every commissioner past and present is on the hook for 100% of their property should there be any wrong doing on their parts.

Ridge Hill - don't you think the Town should wait until the accused are proven guilty before wasting our money on a lawsuit? Even if Annabi is found guily, does he really think the courts will stop the project? Stopping the project will have significant negative impacts on Yonkers and Greenburgh. But hey, it's all about headlines and distraction. We're all reading about how Feiner is defending us via these insane lawsuits but what is he doing right here in our own town to improve our quality of life and keep our taxes reasonable? NOTHING!

I nearly fell out of my seat when he was on Channel 12 talking about how developers and public officials need to be honest. Is he kidding? This is the guy who accepted two BMW Mini Coopers on behalf of the Town while BMW had active applications before the Planning Board and Town Board. Yes, he got the entire Town Board to go along with him to accept these cars - in essence they approved the acceptance of a bribe.

Mark Weinberg (attorney for most major developers in the Town) has sponsored fund raisers for Feiner and has had his friends, partners and employees make contributions to Feiners campaign fund - one could say to all our elected officials as Feiner sponsors their campaigns as well.

He has backroom deals all the times with Weinberg & other developers and then sends memos to the planning board and zoning board urging them to approve these projects before the applications have even reached them. A clear violation of the ethics code.

He pushed White Hickory (Stop & Shop on Tarrytown Road) to contribute $200,000 to the Town to help pay for the traffic study portion of the Master Plan - a bribe.

He tried to strong arm fortress bible to donate a fire truck to the Fairview Fire District - Fortress Bible is suing the Town.

The question is how does he get away with all of this and why isn't he and the entire Town Board being investigated for these clearly illegal and unethical practices? He's our very own teflon Don.

Feiner and the Town Board have ignored time and time again the negative reports from independent auditors about a lack of financial control and missing funds from the Court, the Building Department and the TDYCC. They just keep covering it over and throwing more and more of our tax dollars at the problem without any solution.

Write to the NYS Attorney General, file a complaint with the office of the Westchester District Attorney, file a complaint with the Town's Ethics Board (a joke, but file it anyway). If these agencies receive enough complaints maybe they will finally investigate.

Fed Up With Feiner said...

Forgot about Valhalla and Fairview Fire District - the State Comptroller ruled that it was illegal for the town to give them proceeds from Westhab - millions of dollars given illegally which should have been returned to the Greenburgh taxpayers. Feiner and the Town Board ignored that ruling as well...while they put the transfer of current funds on hold they have not gone after the funds they gave illegally. Our elected Town Clerk was a member of the Valhalla School District Board when the deal to accept the illegal funds was brokered and she was running for Town Clerk when the Comptroller ruled it was illegal. One would think she should not have qualified to run for Town Clerk given the illegal transaction of our tax dollars. Feiner paid 100% of her campaign costs to run on his ticket. He did the same for the other 4 town board members - he bought his rubber stamps.

He want to take control of the parking district because in his words - he thinks the commissioners should be independent thinkers. They are independent thinkers which is what pisses him off. They constantly anger him because they refuse to go along with his freebies and requests to waive residency requirements for his friends. He constantly asks them to have free parking incentives. What he doesn't understand is that it is illegal to give away the services of a user supported entity. It's all in the name of being able to give something away for a vote.

Taxpayers don't pay for the district. Only those who use it pay for it. So if you give 2 weeks of free parking at the meters, the cost has to be shouldered by the permit holders. Is that fair? NO. Is that legal? NO. Does it matter to Feiner, NO.

The parking district is the only agency in Town without controversary - that bothers him as well. They are audited by independent auditors and the State Comptroller each and every year. The audits are reviewed by the Town's independent auditors each and every year. The district probably has more financial review than anyone else in the Town and they are always positive. No missing funds, no lack of checks and balances. 100% financially transparent. That makes him nuts, too because he can't take credit for it nor does he give any credit for it.

He claims he gets 100's of complaints about the district. Well, if he does what does he do with them. The district is unaware of these 100's of complaints. Most complaints are about parking tickets and what he doesn't tell the public is that 100% of the parking violation fines are paid to and retained by the Town. The district does not get any of the money even though they get 100% of the grief. Why, because the Police Department doesn't want the position of enforcement officer in their contract because they don't want to deal with it.

Feiner loves controvery and anomous. It distracts most of us from the real issues which are high taxes, a failing infrastructure, a declining fund balance, numerous lawsuits against the Town, missing funds in the Court, the building department and the TDYCC, illegal payments to the Valhalla School District, acceptance of bribes from developers, etc. etc. etc.

nutz said...

Dear Fed Up,
May I suggest that you make your noteworthy posts over on the JN website? Mr. Garfunkel might be interested in seeing them as well as the public in general.
Also, there is little chance of them being deleted there.

http://www.lohud.com/comments
/article/20100110/OPINION/1100327
/DioGuardi-should-start-with-Feiner

Fed Up With Feiner said...

Ooops - correction to previous post - Correct name for the attorney representing developers and at the same time financing Feiner's campaign - Mark Weingarten.

Fed Up With Feiner said...

The Town did not file a lawsuit against the Parking District as stated by Mr. Feiner. Mr. Feiner filed the suit as "a resident of the Town and member of the Town Board" and used the Town Attorney as his counsel. Obviously the other Town Board members wanted nothing to do with his frivolous lawsuit and all polled their names for it. And here are the golden questions:

1. Does Feiner have standing to file this suit?
2. Did the Town Board adopt a Resolution authorizing Feiner to file this suit as a resident of the Town?
3. Why are the taxpayers paying the Town Attorney to file a lawsuit on behalf of Paul Feiner as resident.
4. Over $60 along, not including copying fees, was expended on Town postage to mail these documents to the commissioners and various other parties. Why are taxpayers paying to mail Feiner's personal lawsuit?
5. Feiner names Kessler as a party to the lawsuit, why are the taxpayers paying for Kessler?

This my friends is how are tax dollars are being wasted away by an infantile, temper tantrum throwing lunatic!

nutz said...

Paul,
Is Fed Up correct?

What do you have to say regarding these egregious accusations?

Mr. Cinque said...

Paul since you are good at filing papers. How about calling the Rampo Town supervisor and getting on board and filing a complaint with Cablevision that since Foodnetwork and HGTV are not being aired your town would like a refund to all subscribers. See this a time to act. NOW

klondike bar said...

why is paul feiner using town resources and staff paid for by the incorporated villages to litigate on his personal behalf?

seems more and more we have paul annabi here in greenburgh.

the scandals and outrages are landling at a steady clip.

Fed Up With Feiner said...

This is what happens when someone is in office for nearly 20 years. He no longer represents the taxpayers, he represents his personal interests. I don't know why the other Town Board members pulled out of the lawsuit; my best guess is they knew it was baseless. Paul just can't take "no" for an answer. He decided to do this on his own and use our tax dollars and town resources to do so. He has broken the law in this matter. This from the guy who claims laws has have to be followed. If you heard him on CBS Radio 88 this weekend he touted how the Town had to enforce every law on the book regardless of how old or obsolete the laws may be. He's very selective about which laws have to be enforced.

But here's the thing. These problems won't go away as long as the Town Board sits idlely by and does nothing to rope him in. To the best of my knowledge there was no resolution authorizing Feiner to proceed on his own in this lawsuit against the District. If they did, did they authorize him to name himself as a resident in the suit? Did they authorize the use of Town Counsel to be his attorney which is what is indicated in the suit? Did they authorize him to use tax dollars/town resources to proceed with this action? I don't think so. Their job now is to end this personal vendetta against an 11-year volunteer who did nothing wrong other than to be married to the man who brought us the library expansion. This is what it is really about. Paul couldn't go after Howard Jacobs due to term limits so he turned his venom on Mrs. Howard Jacobs. To him it's one and the same. Some may not have wanted the library expansion by the voters spoke and the library project passed. How is this the fault of Mrs. Howard Jacobs?

How do you stop these attacks and political appointments? The town board should not be discussing appointments to boards and commissions and hold interviews for same in executive session. These people are volunteers, not employees and thus do not require the secrecy of executive session. The Town should have a process for making all appointments - they actually did at one time. Normally they called on the sitting boards to nominate candidates, to advise them on by-laws and requirements for appointees, to advise them of the experience they are looking for, etc. This is no longer the case. "Mr. Open Government" is doing everything behind closed doors. The public should know who is being considered for the many various boards in our Town. These boards represent us, not Paul Feiner. His refusal to follow protocol is costing the taxpayers and the patrons of the parking district unnecessary expense. All this to feed his ego and execute his personal vendettas.

nutz said...

Court Sanctions for Frivolous and Improper Litigation

New York, when sanctioning, follows a court rule that imposes a duty on a party and his or her attorney to act in good faith to investigate a claim and promptly discontinue it where inquiry would reveal that the claim lacks a reasonable basis. An action is deemed frivolous when it is commenced or continued in bad faith. Where a claim is found to be frivolous, the court rules mandate that sanctions be imposed against the party, the attorney, or both. Sanctions are available, but only after a showing of bad faith. See Smullens v. MacVean, 584 N.Y.S.2d 335 (A.D.3Dept. 1992).

fed up said...

Mr. Feiner, could you be so kind to attempt to find a job for the newly unemployed Mr. Bob Sanborn of WestHab. It seems he was fired in a major shake up at WestHab.

Mr. Feiner, can you confirm this and what will happen to all the money, time and effort you spent on a pointless project that your residents told you would never happen.

It's a damn shame of all the money that has been spent defending your little pet projects.

It’s a damn shame of all the enemies you have created within the community because of your little pet projects.

It’s a damn shame you need to pursue things alone because your town board won’t even stand by your side anymore.

It’s a damn shame you can’t afford your own attorney and have to purloin the services of the town for your own private idiocies.

It’s a Damn Shame you’re still our Supervisor.
Maybe you’re next in looking for a Job!!! (count on it!)

Resident said...

If Westhab doesnt develope the property, will the variances stay in place for the next developer

Fed Up With Feiner said...

Dear "Resident" - that was the problem with Westhab. It was not a variance, it was an overall zone change, otherwise known as "spot zoning."

If Westhab doesn't build and walks away from the project (I don't remember if their contract allows them to sell the property or whether it reverts to the County) it is very possible that the a multi-story highrise residential building could be built. That is why spot zoning is so dangerous.