Elefante v. Hanna
| Decision Date | 29 October 1976 |
| Citation | 54 A.D.2d 822,389 N.Y.S.2d 501 |
| Parties | Application of Rufus P. ELEFANTE, Appellant, v. Edward A. HANNA, as Mayor of the City of Utica, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Longeretta & Longeretta, A. Thomas Longeretta, Joseph R. Mascaro, Corp. Counsel, George L. Betro, Utica, for respondents Hanna and Talarico.
Anthony J. Garramone, Utica, for respondents Common Council and Charter Revisions Commission.
Donald E. Keinz, County Atty., Rocco S. Mascaro, Utica, for respondent Bd. of Elections.
Before CARDAMONE, J.P., and SIMONS, MAHONEY, DILLON and WITMER, JJ.
Petitioner, a resident and taxpayer of the City of Utica, appeals from an order denying his request for equitable and injunctive relief to prevent the submission of a proposed new City Charter at the general election to be held on November 2, 1976.
The facts are as follows: 'On September 17, 1975 the Utica Common Council voted to adopt propsed Local Law #1 of 1975, which established a Charter Revision Commission for the City of Utica pursuant to Municipal Home Rule Law § 36. On September 18, 1975 Local Law #1 of 1975 was presented to respondent Mayor Hanna for action by him pursuant to Article 3 of the Municipal Home Rule Law. Thereafter the Mayor failed to give notice of a public hearing thereon or cause such a hearing to be held until December 11, 1975 when he caused a public hearing to be held on such law and approved it on the same day. As approved, Local Law #1, section 2 provided for the appointment of 'not less than nine nor more than fifteen' Charter Revision Commission members by the Utica Common Council. On August 15, 1976 the Utica Charter Revision Commission caused to be printed a new proposed city charter. On August 17, 1976 respondent Murphy, a member of the Commission, caused a notice of public hearing on the charter propsal, scheduled for August 25, 1976, to be issued and the same was published on August 18 through 25 inclusive. The public hearing was held as scheduled on August 25. The Common Council passed a resolution approving the proposed new city charter on August 26, 1976.
On August 31, 1976, respondent Talarico, as Utica City Clerk, transmitted the proposed city charter to the Oneida County Board of Elections for purpose of inclusion on the official ballot for the November 2 election in the form of a proposition whether the proposed charter should be adopted.
In support of the requested relief petitioner alleges that (1) the respondent Mayor failed, refused and/or neglected to give notice of a public hearing within ten days of the presentation to him of the local law establishing the Charter Revision Commission in violation of Municipal Home Rule Law, § 20, subd. 5; (2) the respondent Mayor failed, refused and/or neglected to hold such public hearing within twenty days of the presentation to him of the local law, in derogation of the same statute; (3) the local law fails to 'fix or provide the method of determining the number of members of such commission' in derogation of Municipal Home Rule Law, § 36, subd. 2; (4) the Utica Common Council failed to 'prescribe the manner of appointment of appointive members of the Charter Revision Commission' or even to name the members of the Commission in derogation of Municipal Home Rule Law, § 36, subd. 2; (5) that the Utica Common Council enacted legislation governing Charter Revision Commission procedure in derogation of the same statute, which allegedly preempts this field of legislation by setting forth the complete procedure to be followed by a Charter Revision Commission.
In opposition, respondents challenge petitioner's standing and the timeliness of...
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