In the Matter of Jennifer Waite, et al., Appellants,v.Town of Champion, Respondent.BriefN.Y.June 7, 2018To be Argued by: BRADLEY M. PINSKY (Time Requested: 30 Minutes) APL-2017-00117 Appellate Division, Fourth Department Docket No. CA 16-01328 Jefferson County Clerk’s Index No. 2146/15 Court of Appeals of the State of New York In the Matter of: JENNIFER WAITE, DAVID WILLIAMS, JONATHAN SCHELL, DARRELL HARRIS and JOSEPH LAWLER, resident taxpayers, electors and legal voters in the town of Champion Fire Protection District, Appellants, – against – TOWN OF CHAMPION, Respondent. BRIEF FOR APPELLANTS PINSKY LAW GROUP, PLLC Attorneys for Appellants 5789 Widewaters Parkway Syracuse, New York 13214 Tel.: (315) 428-8345 Fax: (315) 475-8230 Date Completed: August 1, 2017 TABLE OF CONTENTS iTABLE OF CONTENTS QUESTIONS PRESENTED STATEMENT OF JURISDICTION STATEMENT OF FACTS ARGUMENT POINT I MERE COMPLIANCE WITH THE PROCESS OF DISSOLUTION CANNOT EXCUSE AN ILLEGAL AND INEFFECTIVE PLAN POINT II RESPONDENT NEVER ARGUED ITS PLAN WAS LEGAL POINT III RESPONDENT’S PLAN IS UNLAWFUL AS IT DID NOT ACCOMPLISH AND COMPLETE THE DISSOLUTION OF THE FIRE PROTECTION DISTRICT POINT IV RESPONDENT HAS NOT ABDICATED ITS CONTROL AS REQUIRED BY THE VOTERS POINT V THE STATUTE CONTEMPLATES ONLY DISSOLUTION CONCLUSION 1 3 5 10 10 10 13 13 14 14 23 23 26 26 29 l TABLE OF CASES AND AUTHORITIES Cases Burke v. Crosson, 85 N.Y.2d 10, 15 (1995) Hamdy v. Hamdy, 203 A.D.2d 959 (4th Dept. 1994) Miller v. Morania Oil of Long Island, O.C.P., Inc., 194 A.D.2d 770 (2nd Dept. 1993) Miller v. Savage, 237 A.D.2d 695, 696 (3rd Dept. 1997) Nelson v. Garcia, 152 A.D.2d 22, 24 (4th Dept. 1989) Prudco Realty Corp. v. Palermo, 60 N.Y.2d 656, 657 (1983) ... Sawyer v. Town of Lewis, 11 A.D.3d 938, 940 (4th Dept. 2004) 3 13 22 22, 23 15,22 12 15 Statutes Constitution, Article VI, §3(b)(6) CPLR § 5602 CPLR3211 CPLR Article 78 Former Town Law § 185 . General Municipal Law § 750 . General Municipal Law § 773 . General Municipal Law § 779 General Municipal Law § 780 General Municipal Law § 782 General Municipal Law § 785 General Municipal Law § 786 General Municipal Law § 787 General Municipal Law § 788 General Municipal Law § 789 General Municipal Law § 790 General Municipal Law Article 17-A Not For Profit Corporation Law § 1402. Town Law § 170 Town Law § 172 Town Law § 172-b Town Law § 172-c Town Law § 172-d Town Law § 172-e Town Law § 174 Town Law § 184 Town Law § 202-c . 3 3 12 7 28 8, 16 5,8, 14, 16, 17, 29 5,11 6 6, 26, 28 11 1,2, 6, 7, 8, 10, 11, 14, 30 26 28 27 28 1,5, 10, 12, 18, 19, 20,21,29,30 15 12 21 21 20,21 21 22 23 23,27 18, 19 ii Town Law § 73 Town Law § 74 Town Law Article 11-A 17 17 13 iii QUESTIONS PRESENTED Was the Appellate Division, Fourth Department correct in holding that1. “Supreme Court properly dismissed the petition inasmuch as respondent complied with the statute (see § 786 [1])” when Respondent’s Elector Initiated Dissolution Plan failed to propose a plan which would accomplish and complete dissolution because the Plan proposed to form two fire protection districts over the same boundary as the one fire protection district the electors voted be dissolved? (R. 206) Does General Municipal Law Article 17-A impose a duty upon Respondent2. to create an Elector Initiated Dissolution Plan which accomplishes and completes dissolution as required by General Municipal Law § 786 (1) or is Respondent’s duty merely to follow a process to create an Elector Initiated Dissolution Plan regardless of whether such Plan actually proposed to accomplish and complete dissolution? Did Respondent’s Elector Initiated Dissolution Plan of the Champion Fire3. Protection District propose to accomplish and complete dissolution of such fire protection district as required by General Municipal Law § 786 (1) when such Plan was to replace the single fire protection district with two fire protection districts over the exact boundaries? 1 4. Did Respondent accomplish and complete dissolution of the Champion Fire Protection District as required by General Municipal Law § 786 (1) when Respondent voted to replace such fire protection district with two fire protection districts over the same boundaries as the Champion Fire Protection District? 2 STATEMENT OF JURISDICTION The Court of Appeals has jurisdiction to entertain the within appeal from the1. Order of the Fourth Department pursuant to CPLR § 5602 (a)(l)(i), as the Appellate Division’s Memorandum and Order dated March 24, 2017 is a final order which is not appealable as of right. The Memorandum and Order appealed from is a final determination, as it affirmed the Supreme Court’s granting of the dismissal of the Petition. Burke v. Crosson, 85 N.Y.2d 10, 15 (1995) [A final order or judgment is one which “disposes of all of the causes of action between the parties in the action or proceeding and leaves nothing for further judicial action apart from mere ministerial matters ( see generally, Cohen and Karger, op. cit., §§ 10, 11)”]. The Supreme Court Decision and Order dismissed the Petition and there is no further court action pending. This is a final order within the meaning of the Constitution, Article VI, §2. 3(b)(6) and CPLR § 5602. Burke, supra. No further judicial action is required in this matter as there are no further court proceedings available to either party or necessary to carry out Supreme Court’s Order 3 The issues raised are preserved in Appellants’ Notice of Appeal (R. 2-4,3. 206). 4 STATEMENT OF FACTS Appellants are each resident electors and legal voters who reside within the Champion Fire Protection District in the town of Champion, Jefferson County, New York. Each of them signed a Petition for Local Government Dissolution, demanding a referendum on the dissolution of the Champion Fire Protection District. (R. 17-19, 50, 54, 58, 62, 66, 70-71). Five electors who signed the original petition seeking to compel dissolution are authorized to commence a special proceeding “to compel compliance with the provisions” of General Municipal Law Article 17-A (hereinafter, “Article 17-A”). Respondent is the town of Champion, a municipal corporation situated in Jefferson County, New York. (R. 19, 70-71). At or about the end of August 2014, the electors of a fire protection district located in the Town of Champion commenced a dissolution proceeding by filing a petition upon Respondent. (R. 20, 71-71). The petition called for a vote on the question of whether the Champion Fire Protection District should be dissolved. The electors submitted the original petition pursuant to General Municipal Law §§ 773 (2)(b) and 779. (R. 20, 70-71). During its meeting on Monday, October 6, 2014, Respondent acknowledged receipt of the Petition containing sufficient signatures to require an elector initiated Referendum on the question of the dissolution of the Champion Fire Protection 5 District. (R. 35, 104). Respondent resolved to hold the referendum on December 9,2014. (R. 35, 105). On December 9, 2014, the electors of the Champion Fire Protection District voted affirmatively on the question of “Shall the Champion Fire Protection District be dissolved?” (R. 21, 39, 70-71, 121). The referendum was conducted pursuant to General Municipal Law § 780. Respondent acknowledged the voters’ affirmative vote during its meeting on January 5, 2015. (R. 39, 70-71, 113-115, 117, 121). Respondent was then required to prepare and approve a Proposed Elector Initiated Dissolution Plan pursuant to General Municipal Law § 782, which Respondent then did prepare and approve, albeit in violation of General Municipal Law § 786 (1) as the Plan did not accomplish and complete dissolution. (R. 41-43, 70-72, 125-136). Respondent’s Proposed Elector Initiated Dissolution Plan (R. 41-43, 125- 136) calls for the existence of two fire protection districts which in total comprise the exact same territory as the Champion Fire Protection District which the voters ordered Respondent to dissolve pursuant to General Municipal Law § 780. All that Respondent has proposed to do is to “divide” the existing fire protection district into two parts, with two new names for those parts while keeping Respondent in control of both parts and liable for fire protection therein. 6 Respondent has failed to accomplish and complete the dissolution of the Champion Fire Protection District, as required by the electors during the referendum. Appellants brought this action pursuant to General Municipal Law § 786 (1) which states: If the governing body of a local government entity with a duty to prepare and approve a proposed elector initiated dissolution plan pursuant to section seven hundred eighty-two of this title fails to prepare and approve such plan or is otherwise unable or unwilling to accomplish and complete the dissolution pursuant to the provisions of this article,... Appellants also brought this action pursuant to CPLR Article 78 to challenge Respondent’s Elector Initiated Dissolution Plan as illegal. The New York State Assembly Memorandum in support of the “New N.Y. Government Reorganization and Citizen Empowerment Act” (R. 44) refers to New York’s forms of government as “a maze of overlapping and often competing jurisdictions.” (R. 45). The Memorandum also states, in part: In some cases, citizens cannot even require their elected representatives to consider as an option the consolidation or dissolution of a local government entity. Such voter powerlessness places New York out of step with numerous other states that grant their citizens the right to readily initiate local government reorganizations. *** The Act anticipates the possibility that the governing body or bodies of local government entities are either unable or unwilling to comply 7 with the requirements imposed on them during the course of a citizen- initiated consolidation or dissolution. In such circumstances, the Act authorizes the commencement of a Court proceeding which may, if necessary, result in an order compelling consolidation or dissolution, thereby ensuring the people’s will is carried out (R. 46-47). General Municipal Law §§ 773 (1) and 786 (1) required Respondent to actually and completely “dissolve” and “terminate” the Champion Fire Protection District. General Municipal Law § 750 (5) provides that “dissolution shall mean the termination of the existence of a local government entity.” The Elector Initiated Dissolution Plan which continues one fire protection district and creates one additional fire protection district comprising the same territory as the Champion Fire Protection District does not “dissolve” and “terminate” the Champion Fire Protection District. The Elector Initiated Dissolution Plan merely renames and continues the existing fire protection district. A town cannot be permitted either to continue the existence of the same type of local government entity which the voters mandated be dissolved or to create two of the same local government entities over the same boundaries. By Decision dated March 24, 2017, the Fourth Department held in pertinent part that: Supreme Court properly dismissed the petition inasmuch as respondent complied with the statute ( see § 786 [1]). The majority of electors voted for dissolution of the Champion Fire Protection 8 District, and respondent consequently fulfilled its duty of devising a dissolution plan ( see § 782 [2]). Petitioners failed either to attain the requisite number of signatures to challenge the dissolution plan by referendum ( see § 785 [2] [a]), or to petition for the establishment of a fire district {see Town Law § 171 [1]). (R. 206). The Fourth Department failed to address the issue of whether Respondent’s Elector Initiated Dissolution Plan was illegal as it did not accomplish dissolution, and instead held that Respondent’s only burden was to fulfill its duty of devising a dissolution plan, regardless of whether such plan actually accomplished and completed dissolution. 9 ARGUMENT POINT I MERE COMPLIANCE WITH THE PROCESS OF DISSOLUTION CANNOT EXCUSE AN ILLEGAL AND INEFFECTIVE PLAN The Fourth Department held in pertinent part that “Supreme Court properly dismissed the petition inasmuch as respondent complied with the statute (see § 786 [1]). The majority of electors voted for dissolution of the Champion Fire Protection District, and respondent consequently fulfilled its duty of devising a dissolution plan (see § 782 [2]).” (R. 206). The Fourth Department seems to cite General Municipal Law § 786 (1) for the purpose of holding that Respondent fulfilled its duty to “prepare and approve a proposed elector initiated dissolution plan pursuant to section 782” and has no further duty to the residents to actually accomplish and complete dissolution through such Plan as required by such statute. Respondent’s Plan does not “accomplish and complete the dissolution”. General Municipal Law § 786 (1). Thus, the primary question before this Court is whether a municipality complies with its statutory obligations imposed by General Municipal Law Article 17-A when it creates an Elector Initiated Dissolution Plan 10 which does not actually accomplish and complete dissolution so long as the municipality followed the process outlined in General Municipal Law § 779 et seq. General Municipal Law § 786 (1) requires Respondent to “approve such plan... which accomplishes] and complete[s] the dissolution” and in fact provides Appellants with the right to commence a special proceeding against Respondent if the Elector Initiated Dissolution Plan did not accomplish and complete dissolution. General Municipal Law § 786 (1). Respondent has failed to fulfill its statutory obligations, regardless of whether or not it followed a process to draft an Elector Initiated Dissolution Plan, because Respondent’s Plan fails to accomplish and complete the dissolution. The Fourth Department noted that the residents did not petition against the plan pursuant to General Municipal Law § 785 (2)(a). However, General Municipal Law § 786 (1) provided standing to the five elector Appellants who signed the petition seeking dissolution to challenge the Elector Initiated Dissolution Plan as not accomplishing and completing the dissolution. Such electors have standing to challenge the Plan as illegal because Respondent is “otherwise unable or unwilling to accomplish and complete the dissolution” by creating and implementing an illegal plan. General Municipal Law § 786 (1). Of course, Respondent never challenged or raised the issue of standing (R. 70-76) and 11 waived any such defense. CPLR 3211; Prudco Realty Corp. v. Palermo, 60 N.Y.2d 656, 657 (1983). The New York State Assembly Memorandum in support of the Citizen Empowerment Act recognized that it may be necessary to obtain the intervention of a Court, resulting in an Order compelling “dissolution, thereby ensuring the people’s will is carried out.” (R. 47) Imagine if Respondent, instead of creating two fire protection districts reformed and/or continued the existence of one fire protection district. The inescapable conclusion must be that Respondent may have followed the process to create the Plan but had not accomplished and completed dissolution as required by statute since the fire protection district will still exist. Under the Fourth Department’s holding, this illegal plan would not be subject to judicial scrutiny. The Fourth Department also noted that the residents did not petition for the creation of a fire district. General Municipal Law Article 17-A does not impose any obligation upon the electors to request any element of an Elector Initiated Dissolution Plan and the Fourth Department cites no obligation. Moreover, creating a fire district was one of at least three of Respondent’s options, none of which required a petition by the residents. See, Town Law § 170 (creation of a new fire district and extension of an existing fire district) and Town Law Article 12 11-A (creation of a joint fire district). The Town has the authority to create a fire district, extend a fire district or to create a joint fire district upon its own motion. No petition was required. The Fourth Department has disempowered Appellants and all future petitioners under the “Citizens Empowerment Act” by removing the ability of Appellants and future petitioners from challenging the legality of a plan in court so long as the municipality followed the process of creating an Elector Initiated Dissolution Plan. This holding should not withstand this Court’s scrutiny. Therefore, mere compliance with the process of creating a plan cannot withstand judicial scrutiny when the plan fails to accomplish and complete dissolution. POINT II RESPONDENT NEVER ARGUED ITS PLAN WAS LEGAL Respondent never raised, never refuted, never argued, and has thus failed to preserve for argument a claim that the Town’s dissolution plan was legal. Hamdy v. Hamdy, 203 A.D.2d 959 (4th Dept. 1994). Respondent has never argued that its Plan actually accomplished and completed dissolution. 13 POINT III RESPONDENT’S PLAN IS UNLAWFUL AS IT DID NOT ACCOMPLISH AND COMPLETE THE DISSOLUTION OF THE FIRE PROTECTION DISTRICT Respondent’s plan fails to accomplish the dissolution of the Champion Fire Protection District as required by the voters and by General Municipal Law §§ 773 (1) and 786 (1). Respondent has failed to “dissolve” the Champion Fire Protection District as the Champion Fire Protection District continues to exist under Respondent’s control, although in two parts and under two new names. Respondent has thumbed its nose at the voters of the Champion Fire Protection District by forcing each resident to remain in a fire protection district despite the vote which required the dissolution of the Champion Fire Protection. The Legislature did not intend to permit Respondent’s Elector Initiated Dissolution Plan to recreate the same type of local government entity that the residents just voted to dissolve. Respondent remains in control of both fire protection districts and remains liable for fire protection in both districts, just as it was in control of the Champion Fire Protection District and was liable for the fire protection therein. In establishing a fire protection district, “No independent entity is created thereby; the 14 town controls the district’s operations...” Nelson v. Garcia, 152 A.D.2d 22, 24 (4th Dept. 1989); ; see also, N-PCL § 1402. As more fully stated: [A] Fire Protection District established by a town is not a separate independent legal entity, it is a procedural mechanism permitting the town to provide fire protection (see Town Law § 814). The town is responsible for and controls a Fire Protection District; the department “members” are deemed officers, employees, or appointees of the town; the town controls the department’s operations; and the town is liable for negligence on the part of such members, including negligent operation of fire trucks {Nelson, 152 A.D.2d 22). A town establishing a Fire Protection District has authority to enter into a contract... Sawyer v. Town of Lewis, 6 Misc. 3d 1024(A) affd as modified, 11 A.D.3d 938, 940 (4th Dept. 2004). A true dissolution would remove Respondent’s control over the fire protection district and form a different type of local government entity over which the town has no control, such as a fire district or joint fire district. A true dissolution would remove the town’s liability for the negligence of the Department which provides fire protection within such area. The local government entity has simply not been dissolved. 15 Respondent did not dissolve or terminate the local government entity Once the voters approved the referendum to dissolve the fire protection district, General Municipal Law § 773 (1) required Respondent to “dissolve” and “terminate” the fire protection district. General Municipal Law § 750 (5) provides that “dissolution shall mean the termination of the existence of a local government entity.” Respondent failed to terminate the fire protection district and merely divided one fire protection district into two fire protection districts. The Legislature did not intend to permit a town to form the exact same type of local government entity as was required to be dissolved by the voters. Under Respondent’s Plan, the fire protection district in the town of Champion still exists, though in two parts which make up the whole of the Champion Fire Protection District. The Citizen Empowerment Act does not permit Respondent to “divide” the fire protection district or permit Respondent to reform the same type of local government entity. The Act could not possibly permit the same local government entity to exist in any form whatsoever, whether in part or all of the Champion Fire Protection District. Webster’s Dictionary includes in the definition of “terminate”, the word “discontinue”. Respondent continues to maintain the same local government entity which reports to the same governing board, with the only minor difference being that Respondent has now created two fire protection districts in the place of one. 16 Respondent’s Elector Initiated Dissolution Plan is unlawful as it did not “terminate” or “discontinue” the existence of a local government entity, being the fire protection district. “Division” is not dissolution. Respondent merely “divided” the fire protection district into two parts and did not accomplish “dissolution”. The terms “dissolution”, “division” and “diminution” are terms with separate and distinct legal meanings, referred to throughout various state laws addressing the existence and boundaries of various local government entities. The term “division” is utilized in Town Law § 74, titled “Alteration of town boundaries”, which provides for the “division of a town” into two parts. Clearly, a “division” is not “dissolution” and the law views those actions as separate and distinct. For example, although the voters cannot require a town to “dissolve” the town itself (General Municipal Law § 773 [1]), the voters may request but not mandate the “division” of the town (Town Law § 73[3]) into two parts. Clearly, a “division” is not a “dissolution”. The words “dissolution” and “division” refer to separate actions and there can be no dispute that all that Respondent proposed to accomplish in its Plan is the “division” of one fire protection district into two of the same type of local 17 government entity. Such an outcome does not honor the Legislature’s intent to empower the voters who have demanded that the local government be dissolved, not merely divided. “Diminution” is not dissolution One also could view Respondent’s proposed plan as “diminishing” the boundaries of the Champion Fire Protection District and then forming an additional fire protection district. Town Law § 202-c addresses both the dissolution and diminution of certain types of special improvement districts, and therefore gives specific meaning to both words as distinct from each other. Town Law § 202-c makes clear the distinction between “dissolution” and “diminution”. Town Law § 202-c(l-a) provides that a diminution eliminates only a “portion” of a district. Conversely, a dissolution “terminates” the existence of the entire district while a diminution does not. Article 17-A does not provide for diminution as a permissible part of a plan of dissolution and instead mandates dissolution and “termination”. Article 17-A does not authorize Respondent to diminish the local government entity as an alternative to the elector mandated dissolution of the local government entity. The Legislature knew that the word “dissolve” had a specific and definite meaning. 18 General Municipal Law Article 17-A mandates that the town “dissolve” the local government entity. Conversely, Town Law § 202-c provides that after residents file a petition for “diminution”, a town has discretion to “diminish” the boundaries of certain special improvement districts, but is not required to do so. (Town Law § 202-c). A “diminution” does not accomplish “dissolution”. Contrast the discretionary powers of Town Law § 202-c with the mandates of General Municipal Law Article 17-A. Under Article 17-A, after a petition and successful referendum, the governing board has no discretion when told by the electors to “dissolve” the local government entity. Diminution of a boundary does not accomplish “dissolution” and diminution is clearly a different action, being a change of a lesser degree. Had the Legislature intended to permit a diminution utilizing General Municipal Law Article 17-A or to permit a diminution to remain an option in response to a demand for dissolution, the Legislature knew how to include relevant language from Town Law § 202-c or it would have repealed Town Law § 202-c as part of the “Citizens Empowerment Act” along with the numerous other statutes it repealed. Respondent may have “diminished” the boundaries of the Champion Fire Protection District in one part of the town, but Respondent has not “dissolved” or “terminated” the fire protection district as a whole. Such an outcome does not 19 honor the Legislature’s intent to empower the voters who have demanded that the local government be dissolved, not merely diminished. If a town were permitted to diminish the boundaries of a local government entity which it was ordered to dissolve, a town could severely frustrate the will of the voters and the Legislature by merely eliminating one inch of the local government entity to be dissolved. “ Alteration” is not dissolution Respondent’s Plan may “alter” the boundaries of the fire protection district, but it does not “dissolve” and “terminate” the fire protection district. The difference between an alteration and dissolution is clear. Town Law § 172-c, titled “Alteration of boundaries of fire protection district”, provides for the alteration of a fire protection district. Conversely, General Municipal Law Article 17-A provides only for the “dissolution” of a local government entity and not for the “alteration” of the boundaries of a local government entity. Under Town Law § 172-c, after residents file a petition to alter a fire protection district, a town has the discretion to “alter” the boundaries, but is not required to do so. Town Law § 172-c. Altering and continuing the local government entity is not a permitted outcome of a plan to accomplish dissolution. Such an outcome does not honor the 20 Legislature’s intent to empower the voters who have demanded that the local government be dissolved and not merely altered. The Legislature did not repeal Town Law § 172-c when it implemented General Municipal Law 17-A and thereby continued the statutory process for “altering” a fire protection district. Clearly, the Legislature did not intend Article 17-A to be utilized to alter a fire protection district or for an alteration to qualify as a dissolution. Had the Legislature intended to permit an alteration utilizing General Municipal Law Article 17-A or to permit an alteration to remain an option in response to a demand for dissolution, it would have repealed Town Law § 172-c just as it repealed Town Law sections §§ 172, 172-b, and 172-d. An alteration of a local government entity is not a dissolution and Respondent’s Plan to simply alter the fire protection district is not lawful. Changing the name of the fire protection district is not dissolution Respondent’s Elector Initiated Dissolution Plan may also be viewed as one of simply changing the name of the fire protection district. Unlike towns, villages and fire districts, fire protection districts do not have names because they are not separate and distinct entities from the town. As stated by the Fourth Department, by creating a fire protection district: a town expressly assumes the duty to provide fire protection within such fire protection district. No independent entity is created thereby; 21 the town controls the district's operations; “members” of the district* are deemed officers, employees, or appointees of the town; and the town is liable for any negligence on the part of such members, including negligence in the operation of fire trucks or ambulances. Nelson, supra at 24. As stated by the Third Department, “Unlike a fire district, a fire protection district is not a political subdivision independent of the Town”. Miller v. Savage, 237 A.D.2d 695, 696 (3rd Dept. 1997). By creating and maintaining a fire protection district, the town remains “responsible for providing fire protection.” Miller v. Morania Oil of Long Island, O.C.P., Inc., 194 A.D.2d 770 (2nd Dept. 1993). Fire protection districts are simply not separate or independent from a town. Sawyer, supra at 940. Nor do special improvement districts have names, as they are not separate and distinct from a town. There is no process to change the name of a fire protection district, although there is a process to change the name of a fire district. See, Town Law § 172-e. Therefore, dividing one fire protection district into two and changing the name does not accomplish dissolution. Respondent merely proposes to create two fire protection districts with different names over the same territory as the existing fire protection district. If a simple name change constituted an acceptable plan of dissolution, the Legislature would not have continued the existence of Town Law § 172-e “Change of Name of Fire District”. Merely changing a name is not the dissolution of a local government entity and cannot be a lawful plan of dissolution. 22 POINT IV RESPONDENT HAS NOT ABDICATED ITS CONTROL AS REQUIRED BY THE VOTERS Respondent has failed and refused to abdicate its control of the Champion Fire Protection District by maintaining two fire protection districts over the same boundaries. Respondent has failed to cede its control and dissolve the Champion Fire Protection District as required by the voters and the law. Pursuant to Town Law § 184, upon the formation of a fire protection district, Respondent is required to contract for fire protection in the fire protection district. Under the Plan, Respondent impermissibly remains in control of the fire protection district and remains the governing body required to contract for fire protection. Nelson, supra; Miller v. Savage, supra at 696; Sawyer, supra at 940. This is not to be confused with a “fire district” which is a separate political subdivision of the state with a separate governing body. {See, Town Law § 174[4]). Had Respondent created or expanded one or more fire districts or joint fire districts over the entire fire protection district, it would have accomplished and completed dissolution. Under the Plan, Respondent continues to set the tax rate and to contract for fire protection for the two fire protection districts, just as it has done for the Champion Fire Protection District. Under the Plan, Respondent maintains liability for the negligence of the fire departments providing fire protection in the fire 23 protection district. Sawyer, supra. Respondent has simply disregarded the voters’ will by dividing one protection district into two fire protection districts. Under the Plan, each resident remains in a fire protection district which is subject to Respondent’s control and remains subject to taxes imposed by Respondent. As to each resident, nothing changes despite the residents voting that they did not want to be situated in a fire protection district under Respondent’s control. The Plan did not accomplish dissolution as the Champion Fire Protection District is not “terminated” and “discontinued”. The New York State Assembly Memorandum in support of the Citizen Empowerment Act recognized that in the event a municipality is unwilling or unable to accomplish dissolution, it may be necessary to obtain the intervention of a Court, resulting in an Order compelling “dissolution, thereby ensuring the people’s will is carried out.” (R. 47) It is apparent from the successful referendum in December 2014, and the attached Affidavits (R. 49-68), that the voters and citizens no longer want Respondent to be in control of and liable for providing fire protection. Respondent’s Plan maintains its control of and liability for fire protection against the will of the voters. It is unfathomable that the Legislature, in drafting the Citizens Empowerment Act, intended to permit a town to disregard the will of the citizens 24 and to recreate one or more of the same local government entities which the citizens demanded be dissolved, whether in one or two pieces. The Legislature clearly did not intend to permit a local government entity to be divided or to have its boundaries altered as provided for in the Elector Initiated Dissolution Plan. Such a plan frustrates and disregards the will of the voters. For further example, what if the voters required the dissolution of a lighting, sewer or water district? Is a town simply permitted to create two new districts over the place of the one district? This cannot be what the Legislature intended as the residents would have voted not to live in a lighting, sewer or water district and would no longer desire to pay for such services. That also does not accomplish and complete dissolution and instead would increase the size of government. The Legislature intended to relieve a citizen of the burden of residing within the dissolved local government entity which the citizens voted to dissolve. Under Respondent’s proposed Elector Initiated Dissolution Plan, the residents continue to reside within a fire protection district controlled by the same town board. The town remains liable for fire protection within such fire protection district(s). No dissolution will have occurred. The law makes clear that the governing body must no longer be in control of the dissolved local government entity and must wind down and transfer its affairs. 25 Respondent has failed to dissolve the fire protection district, wind down its affairs or transfer its control. POINT V THE STATUTE CONTEMPLATES ONLY DISSOLUTION Dissolution was never accomplished by Respondent’s Plan, and Respondent refuses to “wind down” the affairs of the fire protection district. Respondent instead plans to continue the affairs of the fire protection district. General Municipal Law § 787 (“Winding Down the Affairs of a Dissolved Local Government Entity”) requires that: the governing body of the dissolving local government entity shall wind down the affairs thereof, dispose of its property as provided by law, make provisions for the payment of all indebtedness thereof and for the performance of its contracts and obligations, and, and if applicable and appropriate under the law, levy taxes and assessments as necessary to accomplish the dissolution. General Municipal Law § 782 (2) requires that the town prepare an Elector Initiated Dissolution Plan following a successful referendum demanding dissolution. The following relevant elements are required in the Plan: *** (e) any plan for the transfer or elimination of public employees; (f) the entity's assets, including but not limited to real and personal property, and the fair value thereof in current money of the United States; (g) the entity's liabilities and indebtedness, bonded and otherwise, and the fair value thereof in current money of the United States; 26 *** (j) terms for the disposition of the entity's assets and the disposition of its liabilities and indebtedness, including the levy and collection of the necessary taxes and assessments therefor; The Legislature could not possibly have intended to permit a local government entity, such as a town, to transfer the assets of the local government entity to itself. A town may own fire apparatus and equipment. Town Law § 184. In this case, Respondent is not proposing to transfer any assets or “wind down” any of its affairs and plans to maintain its control over fire protection. Respondent remains legally obligated to contract for fire protection (Town Law § 184) and remains liable for any negligence of the fire departments providing the fire protection. Sawyer, supra. As an actual example of “winding down” is as follows. When a village dissolves, the village is no longer in control of any of its affairs and such control is transferred to a new government entity, being the town. General Municipal Law § 789 (1) requires that zoning ordinances and other local laws and ordinances of the village are enforced by the town and no longer the village. Conversely, Respondent proposes to maintain control of the affairs of the fire protection district. If a “division” of a local government entity were permitted, this section would not be mandatory. However, what is required is a termination and not a continuation via a divided district. 27 General Municipal Law § 788 requires that all books and papers of a local government entity are deposited with the town clerk. Debts, obligations and liabilities of a dissolved local government entity are assumed by the town. (See, General Municipal Law § 790). Respondent does not propose to transfer anything. If a “division” of a local government entity were permitted, this section would not be mandatory. General Municipal Law § 782 (2)(e) requires that a Proposed Elector Initiated Dissolution Plan address the transfer or elimination of public employees. Transfer must mean to another local government entity and not to hire them back as employees of the same government entity under a new name. If a “division” of a local government entity were permitted, this section would not be mandatory. It is also interesting to note that under the prior dissolution laws (Former Town Law § 185), no authority existed for a resident to require that a town dissolve a fire protection district. Under the former laws, a town could disregard a petition of the voters. Respondent no longer has the authority to disregard the will of the voters, and Respondent has done so by continuing the existence of the Champion Fire Protection District in one or two parts. For the above reasons, Respondent’s Elector Initiated Dissolution Plan is illegal and should be declared void and unenforceable. 28 CONCLUSION The Fourth Department incorrectly held that Respondent met its statutory obligations by merely complying with the process of creating an Elector Initiated Dissolution Plan. Further, a Plan which does not achieve dissolution of the local government entity to be dissolved is not a legal plan. Respondent’s Plan did not accomplish dissolution as it maintained the same type of local government entity, albeit in two parts instead of one. Therefore, Appellants hereby request the following relief: A. An Order declaring that the Elector Initiated Dissolution Plan which has been proposed and adopted by Respondent, town of Champion, be declared void and not permitted under General Municipal Law Article 17-A, Title 3, Sections 773, et seq, as it does not propose to accomplish the actual dissolution of the local government entity, being a fire protection district, and that such plan shall not take effect and as it has taken effect, be declared null and void; B. An Order granting Petitioners an injunction against Respondent, Ordering Respondent to comply with the provisions of General Municipal Law Article 17-A, and Ordering Respondent to propose and adopt a new Elector Initiated Dissolution Plan which was contemplated under Article 17-A, being one that does not involve the existence of a fire protection district, and if Respondent 29 fails to comply with such Order, appointing a judicial hearing officer to create the Plan as dictated by General Municipal Law Article 17-A. C. An Order requiring Respondent to bear the costs of this proceeding, including attorneys’ fees, costs and other fees, and including the costs of any judicial hearing officer appointed by this Court pursuant to subdivision two of this section, pursuant to General Municipal Law §786 (4), and again including legal fees; D. An Order voiding any fire protection contracts entered into between the town of Champion for the protection of the two fire protection districts; E. And for such other and further relief as this Court may find just and necessary. Dated: August 1, 2017 Respectfully submitted: Pinsky Law Group, PLLC Attorneys for Appellants 1 ffli- P'Mft By: Bradley M?Pinsky 5789 Widewaters Pkwy Syracuse, New York 13214 (315) 428-8345 Brad@pinskylaw.com 30 Certificate of Compliance Pursuant to Part 500.13(c)(1) of the Rules of Practice of the Court of Appeals, State of New York The foregoing brief was prepared on a computer. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules and regulations, etc. is 5,890 words.