Marcus v. Baron

Decision Date31 December 1981
Citation445 N.Y.S.2d 587,84 A.D.2d 118
PartiesIn the Matter of Robert B. MARCUS, et al., Respondents, v. Morton BARON, as Presiding Supervisor of the Town of Ramapo, Rockland County, etc., et al., Appellants. In the Matter of Robert B. MARCUS, et al., Respondents, v. Morton BARON, Presiding Supervisor of the Town of Ramapo, Rockland County, etc., et al., Appellants.
CourtNew York Supreme Court — Appellate Division

Herschel Greenbaum, Spring Valley (Robert H. Freilich, Spring Valley, of counsel), for appellants.

Krashes, Ross & Gess, Spring Valley (Frank I. Brown, Spring Valley, of counsel), for respondents.

Before MOLLEN, P. J., and HOPKINS, TITONE and WEINSTEIN, JJ.

TITONE, Justice.

Essentially, the issue presented on appeal is whether the appellant town, through its Town Board, had the power to adopt a local law requiring not only that any proposed incorporation of a village within the town borders comply with the provisions of section 3-302 of the Village Law which pertain to village officers and elections, but, in addition, that the proposed incorporation be in the overall public interest of the territory proposed to be incorporated, the remaining area of the town, and any school or fire district, etc., situated wholly or partly within the territory to be incorporated (Local Laws, 1967, No. 3 of Town of Ramapo, entitled "Village Incorporation Law of the Town of Ramapo"). Subsumed in such issue are questions pertaining to (a) the purported pre-emption of the local law by provisions contained in article 2 of the Village Law (entitled "Incorporation"), and (b) whether the local law constitutes a valid exercise of the town's constitutional and statutory responsibilities regarding Federal, State and regional planning in land use.

Petitioners in these article 78 proceedings are among more than 500 persons who signed an application for the incorporation of the Village of Wesley Hills, which would be situated entirely within appellant Town of Ramapo. After a hearing, the Town Supervisor, appellant Morton Baron, held that the petition was legally insufficient in that, inter alia, it did not contain the allegations required under the challenged local law, namely, that the proposed incorporation is in the overall public interest of (1) the territory proposed to be incorporated, (2) the remaining town area, and (3) any school, fire and other improvement districts wholly or partially within the area intended to be incorporated.

HISTORY

Before delving into the underlying facts and questions of law in this case, we believe it advisable to give a brief history of efforts by the appellant town within the recent past to meet the problems resulting from a dramatic increase in population. Amongst such problems is the duty of the town to provide additional municipal facilities and services.

Concerned with the ever increasing demands placed upon its already inadequate facilities by a burgeoning population, the Town of Ramapo, in 1964, applied for a Federal grant to develop a master plan. Preparation of the plan included a four-volume study of the existing land uses, public facilities, transportation, industry and commerce, housing needs and projected population trends.

The proposals appearing in the study were adopted in July, 1966, pursuant to section 272-a of the Town Law, and were implemented by a master plan. The master plan was followed by the adoption of a comprehensive zoning ordinance and, also, a capital budget providing for development of improvements specified in the master plan within the next six years. The Town Board later adopted a capital program providing for the location and sequence of additional capital improvements for the 12 years following the 6-year life of the capital budget. Thus, the two plans, encompassing an 18-year span, detailed the capital improvements projected for maximum development and conformed to specifications set forth in the master plan, the official map and the drainage plan (see Golden v. Planning Bd. of Town of Ramapo, 30 N.Y.2d 359, 366-367, 334 N.Y.S.2d 138, 285 N.E.2d 291).

In order to phase residential development to the town's ability to provide essential services and facilities over the 18-year period, the Town Board, in 1969, amended the town's zoning ordinance by adding section 46-13.1. Under that amendment, prior to the application for plat approval, a residential developer is required to secure a special permit or variance. The standards for the issuance of special permits require the

availability to the proposed subdivision plat of five facilities or services, namely sanitary sewers or approved substitutes, drainage facilities, improved parks or recreation facilities, including public schools, State, county or town roads, and firehouses. In upholding the constitutionality of the zoning amendment, as containing "proper zoning techniques, exercised for legitimate zoning purposes", the Court of Appeals, in Golden v. Planning Bd. of Town of Ramapo, supra, p. 371, 334 N.Y.S.2d 138, 285 N.E.2d 291, held that it was within the delegated authority of the town to determine the lines along which development should proceed, even though it may divert that growth from its natural course.

VILLAGE INCORPORATION LAW OF TOWN OF

RAMAPO (Local Law No. 3 of 1967)

Disturbed that new villages formed within the unincorporated area of the Town of Ramapo would have a detrimental effect on the afore-mentioned comprehensive plan, the Town Board in 1967 enacted article 45 of the Town Code, entitled "Village Incorporation Law of the Town of Ramapo" (Local Law No. 3 of 1967). Section 45-3 provides the following:

"Petition for incorporation.

"A. Every petition for incorporation of a village shall include all the requirements contained in Section 3-302 of the Village Law of the State of New York.

"B. It shall further contain allegations that the proposed incorporation is in the overall public interest (1) of the territory proposed to be incorporated; (2) of the remaining area of the local government in which such territory is located; and (3) of any school district, fire district or other district corporation, fire protection district or town improvement district, situated wholly or partly in the territory to be incorporated."

Sections 45-4 through 45-7 contain provisions for a hearing before the Town Supervisor on an application for incorporation of a village, the rendering of a report on the application by the Supervisor to the Town Board, a determination by the Town Board after a meeting based upon the Supervisor's report, and a final decision by the Supervisor upon authorization of the Town Board.

VILLAGE LAW, ARTICLE 2

The provisions of article 2 of the Village Law, entitled "Incorporation", which petitioners allege, inter alia, pre-empt enforcement of the subject local law, are stated verbatim or summarized as follows:

" § 2-202. Petition for Incorporation.

* * *

* * *

"b. Contents of petition. The petition shall contain the following information:

"(1) An allegation of the basis on which the petition is signed.

"(2) The name of the proposed village.

"(3) An allegation that such territory contains a population of at least five hundred regular inhabitants.

"(4) The manner in which the area requirements of section 2-200 of this article are satisfied.

"(5) A designation of at least one but no more than three persons, giving full names and addresses, on whom and at which addresses all papers required to be served in connection with the proceeding for incorporation, shall be served. A majority of such designees must reside in such territory.

"(6) Each page of the petition and all exhibits and certifications shall be securely fastened together."

Section 2-206, entitled "Proceeding on hearing", sets forth, inter alia, objections which may be presented to the town supervisor at a hearing as to the legal sufficiency of a petition for incorporation. The grounds for such objections are, inter alia, lack of qualification of a signatory of the petition, insufficient number of signatures thereon, and territorial and population deficiencies.

Under section 2-208, entitled "Decision as to legal sufficiency of petition", the town supervisor, is required to determine whether the petition for incorporation complies with the requirements of article 2 of the Village Law.

SUPERVISOR'S REPORT AND DECISION

After summarizing the testimony adduced before him at the hearing on the petition to incorporate the Village of Wesley Hills, the Town Supervisor held that the instrument was defective and legally insufficient for the following four reasons:

(1) There was no allegation of a proper legal basis on which the petition was signed, i.e., no allegation that it was signed by 20% of the residents of such territory qualified to vote for town officers, or by the "owners of more than 50% in assessed valuation of the real property in such territory" (see Village Law, § 2-202, subd. 1, par. a, cls. § 2-206, subd. 1, pars. b, c).

(2) There was an impermissible reference in the petition to two affidavits with respect to the certification of the number of signatories and their submission as exhibits to the petition.

(3) The impermissible inclusion of town-owned property within the territory sought to be incorporated.

(4) The proposed incorporation was not in the overall public interest, and the petition for incorporation did not contain allegations to the effect that it was.

Elaborating on his finding that the granting of the petition to incorporate the Village of Wesley Hills would not be in the overall public interest, both within and without the proposed village, the Town Supervisor, in his report to the Town Board, gave the following reasons for such a conclusion:

(1) An additional layer of government, with its attendant tax increases, would be a burden upon the people in the proposed village.

(2) The town tax basis would be eroded to the detriment of its bonding ability, while the proposed...

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