Greenberg v. Veteran
| Decision Date | 17 April 1989 |
| Docket Number | No. 89 Civ. 0591 (GLG).,89 Civ. 0591 (GLG). |
| Citation | 710 F. Supp. 962 |
| Parties | In the Matter of the Application of Myles GREENBERG and Frances M. Mulligan, Petitioners, v. Anthony F. VETERAN, et al., Respondents. |
| Court | U.S. District Court — Southern District of New York |
Lovett & Gould, White Plains, N.Y. (Jonathan Lovett, of counsel), for petitioners.
Paul Agresta, Town Atty., Town of Greenburgh, Elmsford, N.Y., for respondents Anthony F. Veteran and Susan Tolchin.
Cuddy & Feder, White Plains, N.Y. (Ruth E. Roth, of counsel), for respondents Keren Developments, Inc. and Robert Martin Company.
Ruth E. Roth, White Plains, N.Y., pro se.
Paul, Weiss, Rifkind, Wharton & Garrison, New York City (Jay L. Himes, Cameron Clark, Melinda S. Levine and William N. Gerson, of counsel), for respondents Anita Jordan, April Jordan, Latoya Jordan, Anna Ramos, Lizette Ramos, Vanessa Ramos, Gabriel Ramos, Thomas Myers, Lisa Myers, Thomas Myers, Jr., Linda Myers, Shawn Myers, and Nat. Coalition for the Homeless, and Yvonne Jones, Odell A. Jones, Melvin Dixon, Geri Bacon, Mary Williams, James Hodges and Nat. Ass'n for the Advancement of Colored People, Inc., White Plains/Greenburgh Branch.
Grover G. Hankins, NAACP, Inc., Baltimore, Md. (Robert M. Hayes, Virginia G. Shubert, Coalition for the Homeless, Julius L. Chambers, John Charles Boger, Sherrilyn Ifill, Andrew M. Cuomo, New York City, of counsel), for respondents Yvonne Jones, Odell A. Jones, Melvin Dixon, Geri Bacon, Mary Williams, James Hodges and Nat. Ass'n for the Advancement of Colored People, Inc., White Plains/Greenburgh Branch.
Federalism is a concept whose vitality is perceived by some to be rather fluid. There are those, for example, who believe it worthy only of lip service and that, as a general proposition, if a matter may be brought in a court it may be brought in federal court. To that thinking, the retort is quite simple: "federal courts are courts of limited jurisdiction."1 Still others, while cognizant of the notion's existence, perceive its recognition as "seasonal" in nature, going in and out of style with the philosophical predilections of a given administration and the quantity and temperament of its judicial appointments. As to that point of view, we note only that the document serving as federalism's source is entitled to greater deference than the whims of current majoritarian thinking.
There are those, however, who share our view that federalism is a neutral constant of federal jurisprudence, the necessary product of our dualist system. The proceeding before us is rife with federalist implications, and it is our recognition of and respect for those concerns which shapes and guides our handling of the matter.
New York has provided an avenue for judicial review of state and municipal administrative action under N.Y.Civ.Prac.L. & R. ("NYCPLR") §§ 7801-06 (McKinney 1981 & Supp.1989), the so-called Article 78 proceeding. Judicial review under these provisions generally is limited to determining whether the official's actions constituted an abuse of discretion, were unsupported by sufficient evidence, or were contrary to existing law. Id. at § 7803. Although an Article 78 proceeding cannot be initiated in federal court, Chicago, Rock Island & Pacific R.R. Co. v. Stude, 346 U.S. 574, 581, 74 S.Ct. 290, 295, 98 L.Ed. 317 (1954), it is contended that such a proceeding nonetheless may be removed here so long as a federal question is asserted in the Article 78 petition — apparently no matter how tangential or attenuated — or if the respondents allegedly were acting pursuant to federal law protecting equal rights — even if that law parallels similar state law mandating like action.
As will become clear, we harbor certain reservations as to this interest in "federalizing" Article 78 proceedings generally and this proceeding in particular. Fortunately, at least in this case a solution presents itself. Animated chiefly by due respect for the principles of comity and federalism that serve as the essential bedrock for healthy federal-state relations, we find that abstention is proper in this case and, consequently, we remand the matter sua sponte to the court from whence it originated and belongs (in our view) — the New York Supreme Court for the County of Westchester.
This case, at its core, is unmistakably a product of the "NIMBY Syndrome" — i.e., that syndrome triggered by proposals to locate prisons, public housing, waste facilities, and other such community additions usually perceived by the targeted community as undesirable, the abiding characteristic of which is to ensure that the proposed facility be placed somewhere if it must but "Not In My BackYard." The public project at issue here is the proposed construction of emergency housing for the homeless.
In January of last year, the Town of Greenburgh, in conjunction with the County of Westchester, proposed to build emergency or "transitional" housing to accommodate 108 homeless families on land owned by the County in the Town. The proposed developer is West H.E.L.P., Inc. ("West HELP"), a not-for-profit corporation formed for the express purpose of constructing housing for the homeless of Westchester County. It is generally acknowledged that the vast majority of homeless people who would qualify for residence in the West HELP project are minorities, specifically blacks.
In response to that announcement, a number of Greenburgh residents living in the area immediately surrounding or adjacent to the proposed site formed the Coalition of United Peoples, Inc. ("COUP"). COUP's purpose, de facto or otherwise, is to coordinate opposition to the West HELP project and, most importantly, to ensure that the project is not constructed in COUP's backyard. As part of those efforts, COUP began a drive under N.Y. Village Law §§ 2-200 to 2-258 (McKinney 1973 & Supp.1989) (the "Village Law") to incorporate an area encompassing the proposed West HELP project as a separate village to be denominated the Village of Mayfair Knollwood.2 On September 14, 1988, pursuant to section 2-202 of the Village Law, COUP presented an incorporation petition to Greenburgh Town Supervisor Tony Veteran, whose responsibility it is in the first instance to determine whether the petition complies with the requirements of the Village Law. In accord with section 2-204 of the Village Law, a public hearing on the matter was conducted on November 1 at which oral testimony was received. Town Supervisor Veteran then adjourned conclusion of the hearing until November 21 for the sole purpose of entertaining written comments on the petition.
Also on November 1, and prior to any decision by Town Supervisor Veteran on the merits of the petition, various citizens of the Town of Greenburgh, a number of homeless people living in Westchester County, the National Association for the Advancement of Colored People, and the National Coalition for the Homeless joined forces as plaintiffs in a federal action in this court against COUP, certain of its members, and Town Supervisor Veteran. Jones v. Deutsch, No. 88 Civ. 7738 (GLG). The complaint alleges, inter alia, a civil rights conspiracy amongst the named defendants pursuant to 42 U.S.C. § 1985, the ostensible purpose of which is to deprive plaintiffs of voting, housing, and emergency-shelter rights grounded in federal and state law. Plaintiffs also sought a declaratory judgment directing that Town Supervisor Veteran reject the allegedly discriminatory incorporation petition, contending that such a result would be consistent with the proper execution of his oath of office. The COUP defendants moved to dismiss that action on various grounds (among them ripeness and standing). The motion was adjourned sine die pending determination of the instant matter, which had been removed to this court during the interim.
Town Supervisor Veteran, apparently not in need of a federal court order controlling his actions, issued a decision on December 1, 1988 rejecting COUP's incorporation petition (the "December 1 Decision"). In a carefully worded opinion, six specific grounds were enumerated as the bases for the decision:
(1) the proposed boundaries are not described with "common certainty," as required by section 2-202 of the Village Law;
(2) the proposed boundaries, where ascertainable, evidence an intent to discriminate and are gerrymandered to exclude black residents, rendering the petition violative of "rights granted by the federal and state constitutions";
(3) the petition was prepared for the invidious purpose of "preventing the construction of transitional housing for homeless families," rendering it violative of "rights granted by the federal and state constitutions";
(4) substantial petition signatures were obtained under false pretenses;
(5) substantial petition signatures are irregular; and
(6) numerous Town residents (particularly newer residents) are not identified as would-be inhabitants of the proposed village, as required by section 2-202 of the Village Law.3
Under the express provision of section 2-210 of the Village Law, review of a town supervisor's decision on an incorporation petition may be had only through an Article 78 proceeding on grounds that the decision "is illegal, based on insufficient evidence, or contrary to the weight of evidence." Eleven days after Town Supervisor Veteran issued his decision on the COUP petition, two COUP members instituted an Article 78 proceeding in New York Supreme Court challenging that decision. On January 30 of this year, the respondents in that proceeding filed a petition for removal in the Southern District of New York, designating the matter as related to the pending Deutsch action.
Urging that the December 1 Decision be reversed and the petition to incorporate the Village of Mayfair Knollwood be sustained, the Article 78 petition sets forth five specific bases allegedly supporting the relief requested:
(1) since section 2-206(3) of...
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Reinhardt v. COM. OF MASS. DEPT. OF SOCIAL SERV.
...the defendants. Consequently, we exercise our power to dismiss the complaint as against Joudrey sua sponte. See Greenberg v. Veteran, 710 F.Supp. 962, 966-67 (S.D.N.Y.1989) (available on ...
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Jones v. Deutsch
...v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), we remanded the matter, sua sponte, to State court. In re Greenberg, 710 F.Supp. 962, 972-976 (S.D. N.Y.1989). Town Supervisor Veteran appealed and is seeking a stay of the remanded Article 78 proceeding pending decision by the Se......
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Greenberg v. Veteran
...were irregular; and (5) numerous residents were not identified as would-be inhabitants of the proposed village. See Greenberg v. Veteran, 710 F.Supp. 962, 965 (S.D.N.Y.), rev'd on other grounds, 889 F.2d 418 (2d Cir.1989). For reasons which will become clear, however, our present decision f......
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Greenberg v. Veteran, 173
...the district court on its own motion on April 17, 1989 remanded the case to the New York Supreme Court for lack of jurisdiction. 710 F.Supp. 962. According to Judge Goettel, the removal petition did not, and Veteran in good faith could not, allege a conflict between state and federal law. H......