In the Matter of Jennifer Waite, et al., Appellants,v.Town of Champion, Respondent.BriefN.Y.June 7, 2018 To be Argued by: ROBERT J. SLYE, ESQ. (Time Requested: 15 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, Petitioners-Appellants, – against – TOWN OF CHAMPION, Respondent-Respondent. BRIEF FOR RESPONDENT-RESPONDENT SLYE LAW OFFICES, P.C. Robert J. Slye, Esq. Attorneys for Respondent-Respondent Town of Champion 104 Washington Street Watertown, New York 13601 Tel.: (315) 786-0266 Fax: (315) 786-3488 September 19, 2017 STATEMENT OF STATUS OF RELATED LITIGATION AS OF THE DATE OF SUBMISSION OF THIS BRIEF By separate, and earlier, Order to Show Cause dated May 19, 2015, Petitioners Jennifer Waite (the same Jennifer Waite as is the Appellant in this proceeding) and Champion Volunteer Fire Company, Inc. commenced a special proceeding against the Town of Champion and the Village of West Carthage, claiming that the Town of Champion’s termination of a fire protection agreement between the Town (on behalf of the extant Champion Fire Protection District) and Champion Volunteer Fire Company, Inc. was improper, because the parties had not mutually consented to termination. By Memorandum Decision and Order dated July 2, 2015, the Supreme Court in and for the County of Jefferson, Hon. James P. McClusky, J.S.C., presiding, converted the special proceeding into an action for breach of contract pursuant to CPLR §103(c). A Notice of Appeal of the Court’s Memorandum Decision and Order was filed on or about August 10, 2015; it was not perfected. No further proceedings in that action have been had. This statement is provided in accordance with 22 NYCRR §500.13(a). TABLE OF CONTENTS Table of Cases and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii Questions Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Argument Point I - Appellants’ Claims that the Town Failed to Preserve Certain Issues for Appeal are Simply Wrong . . . . . . . . . . 5 Point II - Art 17-A is a Procedural Statute . . . . . . . . . . . . . . . . . . . . . 7 Point III - The Town Board was Free to Exercise its Authority Under the Town Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Point IV - The Provisions of Article 17-A of the General Municipal Law and Article 11 of the N.Y. Town Law Must be Read Together . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Point V - Appellants’ Claim that the Town was Required to Adopt an Elector Initiated Dissolution Plan Calling for the Establishment of a Fire District Leads to an Absurd Result . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Point VI - Appellants are not Truly Concerned Over Whether the Extant Fire Protection District was Dissolved; They are Upset That Two Separate Fire Protection Districts Were Established in Its Stead . . . . . . . . . . . . . . . . 24 Point VII - Article 17-A is not a “Loophole” Around a Town Board’s Authority to Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 ii TABLE OF CASES AND AUTHORITIES Cases Albany Law School v. New York State Office of Mental Retardation and Developmental Disabilities, 19 N.Y.3d 106, 121 (2012. . . . . . . . . . 18 Alweis v. Evans, 69 N.Y.2d 199, 204 (1987) . . . . . . . . . . . . . . . . . . . . . 20, 21 Ball v. State of New York, 41 N.Y.2d 617, 622 (1977) . . . . . . . . . . . . . 20 Matter of Bianca v. Frank, 43 N.Y.2d 168, 173 (1977). . . . . . . . . . . . . . 19 City of New York v. Stringfellow’s of New York Ltd., 96 N.Y.2d 51, 55 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29 Matter of Consolidated Edison v. Department of Environmental Conservation, 71 N.Y.2d 186, 195 (1988) . . . . . . . . . . . . . . . . . . . . . . . 20 Matter of Dutchess County Dept. of Social Servs. v. Day, 96 N.Y.2d 149, 153 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 18 Hamdy v. Hamdy, 203 A.D.2d 959 (4th Dep’t 1994) . . . . . . . . . . . . . . . 5 Natural Resources Defense Council, Inc. v. New York City Department of Sanitation, 83 N.Y.2d 215, 222 (1994) . . . . . . . . . . . . . . 19 Matter of New York State Assn. of Criminal Defense Lawyers v. Kaye, 96 N.Y.2d 512, 519 (2001) . . . . . . . . . . . . . . . . . . . . 23 Odunbaku v. Odunbaku, 28 N.Y.3d 223, 229 (2016) . . . . . . . . . . . . . . . 19 People v. Garson, 6 N.Y.3d 613, 614 (2006). . . . . . . . . . . . . . . . . . . . . . 22, 23 People v. Pabon, 28 N.Y.3d 147, 156 (2016) . . . . . . . . . . . . . . . . . . . . . 22, 23 People v. Santi, 3 N.Y.3d 234, 242-244 (2004) . . . . . . . . . . . . . . . . . . . 22, 23 iii People ex rel. Sibley on Behalf of Sheppard v. Sheppard, 54 N.Y.2d 320, 325 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Matter of Plato’s Cave Corp. v. State Liq. Auth., 68 N.Y.2d 791, 793 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Yatauro v. Mangano, 17 N.Y.3d 420, 427 (2011) . . . . . . . . . . . . . . . . . 18 Statutes CPLR §7084(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Chapter 74 of the Laws of 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13 N.Y. Judiciary Law §302 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 McKinney’s 2009 Session Laws of New York, Ch. 74 at p. 1528 . . . . . . . . . . 12 McKinney’s 2009 Session Laws of New York, Ch. 74 at sect. 14 . . . . . . . . . . 13 McKinney’s 2009 Session Laws of New York, Ch. 74 at p. 1530. . . . . . . . . . . 24 N.Y. General Municipal Law Article 17-A. . . . . . . . . . . . . . . . .7, 8, 9, 12, 13, 14, 18, 19, 21, 22, 23, 25, 29, 30 N.Y. General Municipal Law Section 773(1) . . . . . . . . . . . . . . . . . . . . . 8 N.Y. General Municipal Law Section 779(2) . . . . . . . . . . . . . . . . . . . . 25 N.Y. General Municipal Law Section 782(1) . . . . . . . . . . . . . . . . . . . . 10 N.Y. General Municipal Law Section 782(2)(a)(1). . . . . . . . . . . . . . . . . 10 N.Y. General Municipal Law Section 782(2)(m). . . . . . . . . . . . . . . . . . 10 N.Y. General Municipal Law Section 782 through 785 . . . . . . . . . . . . . 9 N.Y. General Municipal Law Section 784(3) . . . . . . . . . . . . . . . . . . . . . 11 iv N.Y. General Municipal Law Section 786(1) . . . . . . . . . . . . . . . . . . . . . 7, 8 N.Y. General Municipal Law Section 792 . . . . . . . . . . . . . . . . . . . . . . . 8 N.Y. General Obligations Law Section 782(1). . . . . . . . . . . . . . . . . . . . 10 N.Y. General Obligations Law Section 782(2)(a-m) . . . . . . . . . . . . . . . 10 N.Y. Town Law Article 11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19, 21 N.Y. Town Law Section 30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 N.Y. Town Law Section 30(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 N.Y. Town Law Section 64(23) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 N.Y. Town Law Section 170 . . . . . . . . . . . . . 4, 13, 14, 15, 18, 19, 21, 26, 27, 29 N.Y. Town Law Section 170(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16 N.Y. Town Law Section 171 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 14, 26, 29 N.Y. Town Law Section 171(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26 N.Y. Town Law Section 171(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 N.Y. Town Law Section 173 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 N.Y. Town Law Section 173(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 14, 16 N.Y. Town Law Section 173(2)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 N.Y. Town Law Section 174(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 New N.Y. Government Reorganization Organization and Citizen Empowerment Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 21 15 Op. State Compt. 327-328 (Opn. 59-716) (1959) . . . . . . . . . . . . . . . 7 1981 Opns. St. Comp. No. 81-229, pg. 247-248 . . . . . . . . . . . . . . . . . . . 15 v Article 5-B and N.Y. Town Law Sections 172, 172-b, 172-d, 185, 189-c, 206, 206-a and 209-r . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Regulations 22 N.Y.C.R.R. §500.13(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 vi QUESTIONS PRESENTED Question 1: Was the former Champion Fire Protection District dissolved? Question 2: Did “The New N.Y. Government Reorganization and Citizen Empowerment Act” contained at Article 17-A of the New York General Municipal Law require the Champion Town Board to create a new government entity in its stead? 1 STATEMENT OF FACTS On or about September 19, 2014, the electors of the extant Town of Champion Fire Protection District filed a petition to require a referendum on the issue of whether that fire protection district should be dissolved. (R 80-103). The Town Clerk certified that the petition was valid and that it contained a sufficient number of valid signatures to require a referendum. (R 104). Approximately two weeks later, on October 6, 2014, the Town Board unanimously resolved to call for a referendum of the electors to answer the question “shall the Champion Fire Protection District be dissolved?” (R 105). The referendum vote was scheduled for December 9, 2014. (R 105). After the Town Board’s adoption of the resolution, the Town Clerk posted a notice of public referendum; published a legal notice of the special election/referendum; and prepared a “Town of Champion official affidavit/special ballot for special election” (R 109-112), all as required by law. The referendum was approved by the voters, and the Town Clerk certified the canvass of ballots and filed the same with the Jefferson County Clerk, which process was completed by December 11, 2014. (R 113-118). On January 5, 2015, the Town Supervisor of the Town of Champion reported, during a regular Town Board meeting, that the referendum to dissolve the Champion Fire Protection District had been approved by the voters. (R 121). 2 On July 6, 2015, five months after the January meeting when the results of the referendum were announced, the Town Board proposed and “published,” or made public, its Plan for Dissolution of the existing fire protection district. (R 122-136). The Plan for Dissolution was even read aloud by the Town Attorney at the July 6, 2015 meeting (R 122 and R 78 at No. 15) and a public hearing on the Plan for Dissolution was scheduled for August 10, 2015. (R 123 “bullet 3”). The Plan was then “published” in the Town’s official newspaper for four consecutive weeks. (R 137-138). The Plan for Dissolution is contained at R 125-136. Essentially it called for dissolution of the existing Champion Fire Protection District on December 31, 2015 and the creation of two new fire protection districts to be known as Champion Fire Protection District No. 1 and Champion Fire Protection District No. 2. (R 126). The Plan for fire protection for the new districts after December 31st was through separate contracts for Fire Protection District No. 1 with the Village of West Carthage and for Fire Protection District No. 2 with the Village of Copenhagen. (R 127). A map of the proposed fire protection districts is made part of the record at R 142. The district shaded in pink represents the previously existing Great Bend Fire District. That fire district, together with the Village of West Carthage (as shown by an orange line surrounding the Village of West Carthage), were the 3 exclusions to the extant Champion Fire Protection District. (R 126 item No. 2). With reference to the map (R 142), the planned Fire Protection District No. 1 is shaded in yellow (except for the Village of West Carthage properties outlined at the right of the map in orange), and the proposed Fire Protection District No. 2 is shaded in blue. (R 142). The August 10, 2015 meeting was a special meeting of the Town Board, appropriately scheduled and published as such (R 138), and the agenda clearly called for three public hearings on three separate proposed resolutions to: (1) approve the Plan for Dissolution of the Champion Fire Protection District; (2) create Champion Fire Protection District No. 1; and (3) create Champion Fire Protection District No. 2. (R 139). The minutes of the Town Board meeting held on August 10, 2015 are part of the record (R 140-141). At the conclusion of the public hearing on the Plan, Board Member Ferguson commented that the petition to dissolve the existing Champion Fire Protection District was not a petition to form a fire district. (R 140). He made further comments about the Champion Fire Department’s past performance for the extant single Fire Protection District. A resolution was then offered by the Town Supervisor to approve the Plan for Dissolution, and it was approved by roll call vote (R 140) (R 72, para. 13). 4 The outline of the Plan of Dissolution, contained at R 125-127, makes clear that the effective date of dissolution of the Champion Fire Protection District “shall be no less than 45 days after final approval of this plan. . . .” (R 126 Item No. 12). Indeed, the resolution, itself, called for the Plan for Dissolution to be effective December 31, 2015. (R 140). After resolving to dissolve the Champion Fire Protection District on August 10th, as required by the referendum, the Town Board proceeded to hold public hearings on the proposed establishment of newly created Fire Protection District No. 1 and Fire Protection District No. 2 (R 140). Resolutions adopting their formation were approved by the Town Board after the public hearings. (R 141). Certified copies of those resolutions are contained at R 143-152, and those resolutions were duly filed with the Office of the Jefferson County Clerk and, ultimately, with the New York Department of State, all in accordance with Section 170, 171, 173(1), and 173(2)(a) of the New York Town Law. (R 153-165; R 166- 172; and R 173). On September 24, 2015, a separate elector petition was presented calling for a referendum on whether the Plan for Dissolution should take effect. (R 174-182). Upon review of the petition, the Town Clerk determined that it contained an insufficient number of valid signatures (R 183), and notified the petitioners accordingly (R 184). 5 Ultimately, the Village of West Carthage contracted to provide fire protection in the new Fire Protection District No. 1, and the Village of Copenhagen contracted to provide fire protection in the new Fire Protection District No. 2. (R 189, paragraphs 21-23). ARGUMENT POINT I APPELLANTS’ CLAIMS THAT THE TOWN FAILED TO PRESERVE CERTAIN ISSUES FOR APPEAL ARE SIMPLY WRONG Appellants’ brief, at Point II on page 13, claims that the Town “never raised, never refuted, never argued, and has thus failed to preserve for argument a claim that the Town’s dissolution plan was legal,” citing the case of Hamdy v. Hamdy, 203 A.D.2d 959 (4th Dep’t 1994) for the proposition that, having not preserved the issue for review, the Town cannot now argue the point. A simple review of the record in this case belies Appellants’ claim. For example, paragraph 46 of the Verified Petition claims as follows: 46. For the above reasons, Respondent’s elector initiated plan of dissolution is illegal and should be declared void and unenforceable. (R 30). The Verified Answer, at paragraph 4, clearly “denies each and every remaining allegation of the Verified Petition.” (R 70). That denial includes paragraph 46. 6 Moreover, the Town’s supporting Affidavit of Bruce R. Ferguson, Deputy Supervisor for the Town of Champion, submitted pursuant to CPLR §7084(c), specifically alleged: 23. The actions of the Town Board in dissolving the previous fire protection district and establishing the two new districts, each having a separate contract for the provision of fire services, were lawful and must be upheld. (R 189). Appellants further argue, at Point II of their brief (R 13), that “Respondent has never argued that its plan actually accomplished and completed dissolution.” This claim also isn’t true. The Town respectfully refers the Court to the Verified Answer at paragraphs 9-13 (R 71-72); the Town’s First Objection in Point of Law contained at paragraphs 21-23 (R 73-74); and the certification of the Town Clerk of the “record” in connection with this Article 78 proceeding, particularly at paragraph 18. (R 78). The actual resolution, itself, is contained in the minutes of the Town Board meeting of August 10, 2015. (R 140-141). On a roll-call vote, the resolution passed 4 to 1. (R 140). Pursuant to Section 30 of the N.Y. Town Law, a Town Clerk is required to “attend all meetings of the town board, act as clerk thereof, and keep a complete and accurate record of the proceedings of each meeting, and of all propositions adopted pursuant to this chapter.” N.Y. Town Law 7 §30(1) (McKinney 2013). According to the State Comptroller, “Board resolutions must be set forth in the minutes of meetings.” See 15 Op. State Compt. 327-328 (Opn. 59-716) (1959). The resolution contained in the minutes of the August 10, 2015 meeting (R 140) , therefore, serves as the resolution dissolving the fire protection district “effective December 31, 2015.” To the extent that Appellants’ brief claims that the Town “has never argued that its plan actually accomplished and completed dissolution,” or that it has never claimed that its dissolution plan was “legal,” the brief is obviously in error. The Town not only argued it, but succeeded in its argument in the Courts below. POINT II ART 17-A IS A PROCEDURAL STATUTE The instant Article 78 Proceeding is specifically authorized by §786(1) of the New York General Municipal Law which provides: 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 [Article 17-A], then any five electors who signed the petition seeking dissolution may commence a special proceeding...to compel compliance with the provisions of this article. 8 N.Y. Gen. Mun. Law §786(1) (McKinney 2012). The “provisions of this article” are mandated to “supersede and replace all other state and local laws relating to the procedures and requirements for the consolidation and dissolution of local government entities....” N.Y. Gen. Mun. Law §792 (McKinney 2012). In connection with the dissolution of local government entities, Article 17-A provides that “A local government entity other than a town may be dissolved and terminated by the procedure described in this title.” N.Y. Gen. Mun. Law §773(1) (McKinney 2012). (emphasis added). Arguably, then, the entirety of this relatively new statute (dissolution of local government entities) contained at Title 3 of Article 17-A involves the procedures which must be followed. It follows, therefore, that an Article 78 challenge under §786(1) is limited to the question of whether procedures were followed resulting in a dissolution, not whether the decisions made by the governing body following the dissolution are satisfactory to an Article 78 Petitioner. Such decisions remain within the province of the elected officials. It is respectfully submitted that this is why the trial court justice was careful, on the record at oral argument, to state: I find that the town did the appropriate action---followed the appropriate steps here. I won’t say [the decision to establish two new, separate fire protection districts is] the appropriate action or not. Maybe the best way to provide fire protection is through a fire district, not a fire protection district, but that’s the job of the elected officials to decide and that’s what they did. 9 And, obviously, the petitioners disagree with that, but the procedures that they had to follow were followed so the court is going to dismiss the petition. (R 11-12). The Appellate Division, Fourth Department, agreed, unanimously stating in its Memorandum and Order: We agree with respondent 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). There can be no doubt that Appellants are unhappy with the Town Board’s replacement of the extant fire protection district with two separate fire protection districts, all of which was clearly described in the “Proposed Elector Initiated Dissolution Plan” (hereinafter the “Plan”) which was prepared, published and publicly aired pursuant to Sections 782 through 785 of the General Municipal Law. But, as the trial Court noted in its Order, the “determination [on how to replace it] was the ‘job of the elected officials to [make].’” (R 7-8). The Town followed the procedures mandated by Article 17-A for the dissolution of the Town of Champion Fire Protection District. The passage of the proposition “shall the Champion Fire Protection District be dissolved?” was certified by the Town Clerk on December 10, 2014. (R 117). A meeting of the 10 Town Board was held on January 5, 2015, within 30 days after certification of the favorable vote (R 119-121) when then-Town Supervisor Buckley reported “that the referendum to dissolve the Champion Fire Protection District was approved by the voters.” (R 121). Within 180 days of that January 5, 2015 meeting, the Town Board did, on July 6, 2015, “prepare and approve a proposed elector initiated dissolution plan.” (R 122-136). Each of these acts was strictly in accordance with the procedural requirements contained at §782(1) of the General Municipal Law (McKinney 2012). As shown in the record at R 125-136, the “Plan” marched down through each and every specification required by Section 782(2)(a)(1) of the General Municipal Law. On the night it was introduced (July 6, 2015) the Town Board heard the Town Attorney “present and read [aloud] the Plan” (R 122); approved the Plan as written (R 123); authorized and directed the Town Clerk to publish a copy of the Plan and to display it in public places within the affected area, and to publish the Plan on the Town’s website (R 123); and resolved to schedule a public hearing on the Plan to be held August 10, 2015 at 7:00 p.m., pursuant to Section 782(2)(m) of the General Municipal Law. (R 123). Thus, each of the procedural requirements for the Plan of Dissolution were met. N.Y. Gen. Obligations Law §782(1) and (2)(a-m) (McKinney 2012). 11 Included among the Plan’s provisions was that “The effective date of the dissolution of the Champion Fire Protection District shall be no less than 45 days after final approval of this Plan pursuant to Subdivision 3 of Section 784 of the General Municipal Law of New York State unless and until a petition for permissive referendum shall be initiated. In which case, [such] plan shall not take effect until the results of such referendum are obtained.” (R 126-127). Indeed, the resolution ultimately adopting the Plan, after the public hearing on August 10, 2015, called for the plan of dissolution to be effective December 31, 2015. (R 141). The public hearing was indeed held as scheduled on August 10, 2015, and, after a roll call vote, the “proposed elector initiated dissolution plan" was adopted by resolution of the Town Board. (R 140). A petition was subsequently submitted calling for a referendum on the Town Board’s adoption of the Plan (R 174-182), but the petition contained insufficient signatures to initiate the referendum. (R 184). Thus, the Plan “stood.” As highlighted in respondent’s “First Objection in Point of Law” contained at paragraph 23 of its Verified Answer, “because the Town Board of the Town of Champion actually did dissolve the fire protection district, this special proceeding [was properly] dismissed.” (R 74). 12 It is respectfully submitted that the issue of “following procedure” was important to both the Trial Court and the Appellate Division, Fourth Department, because Article 17-A, itself, provides little else. Indeed, the State Legislature, in its Legislative Memorandum relating to Chapter 74 of the Laws of 2009 describes the “PURPOSE” of the Act as being to “establish[ ] uniform and user friendly procedures for local government entities to consolidate or dissolve.” The Legislative Memorandum continues, “Through the use of these procedures, in appropriate cases, local governments can enhance the delivery of services, achieve savings and reduce local real property taxes and other taxes and fees.” McKinney’s 2009 Session Laws of New York Ch. 74 at page 1528 (West 2010). Dissolution was accomplished upon adoption of the Town Board’s resolution on August 10, 2015. See Legislative Memorandum supra, at page 1530, which states: “[D]issolution takes effect when the governing body...approve[s] a final version of the plan.” It seems axiomatic that, had the Town Board not followed the procedures, Appellants would be arguing, in some manner or another, that the “process” should start all over again. Because the Town complied with the required procedures established by Article 17-A, however, Appellants are left with the argument that they have somehow been “disempowered” because the Town otherwise “has the authority to create a fire district, extend a fire district or create a joint fire district 13 upon its own motion,” and did not do so. See Appellants’ brief, page 13. It is respectfully submitted that this is the entire point---as will be discussed later in this brief---that once the procedures to “dissolve” are followed, it was, as a matter of State statute, solely up to the Town Board to determine where to proceed from there. See, for example, New York Town Law §170 (McKinney 2013). POINT III THE TOWN BOARD WAS FREE TO EXERCISE ITS AUTHORITY UNDER THE TOWN LAW The gravamen of Appellants’ appeal is that they do not like the Town Board’s decision as to how to provide fire protection services in the Town. Nothing in Article 17-A is designed to address that issue. To the contrary, Chapter 74 of the Session Laws of 2009, entitled “Requirements for Consolidating or Dissolving Certain Local Government Entities” declared by the Legislature to be known as the “New N.Y. Government Reorganization Organization and Citizen Empowerment Act,” specifically repealed some provisions of the New York Town Law, but not others. See McKinney’s 2009 Session Laws of New York (West 2010), Chapter 74 at Section 14, specifically repealing Article 5-B and Sections 172, 172-b, 172-d, 185, 189-c, 206, 206-a and 209-r of the Town Law. Those former provisions, respectively dealing with the consolidation of towns, 14 consolidation of fire districts, consolidation of fire protection districts, procedures for dissolving or alteration of a fire protection district when added to an adjoining fire district, dissolution of existing fire, fire alarm and fire protection districts, consolidation of special districts, consolidating of a district and its extensions, and dissolution of special sewer drainage or water improvement districts, were expressly repealed by the provisions of Article 17-A. Among the provisions not repealed when Article 17-A was adopted, however, are those provisions dealing with the establishment and extension of fire, fire alarm and fire protection districts, all as contained at Sections 170, 171, and 173 of the Town Law (McKinney 2013). So, while the State Legislature, through the adoption of Article 17-A of the General Municipal Law, impressed upon municipalities the procedures to be followed for the consolidation and dissolution of “local government entities,” it did not alter the inherent power of a Town Board to determine how best to provide fire protection for the residents of the town, nor the procedures for the formation of those entities. Thus, while the formation of the two new fire protection districts resulted in the filing of the resolutions which created them with the County Clerk (R 153-172) pursuant to N.Y. Town Law §173(1), and further with the filing of certified copies with the State Comptroller (R 173) pursuant to Town Law §73(2), no similar filing with the County Clerk was made for the dissolution of the extant fire protection district, as Art. 17-A did not mandate it. 15 The powers of Town Boards to regulate the affairs of a town are quite broad. See, for example, N.Y. Town Law §64(23), which states that “the town board of every town...shall have and exercise all the powers conferred upon the town and such additional powers as shall be necessarily implied therefrom.” (McKinney 2013). One of the few things that a town board cannot do, however, is “provide for fire protection as a town function.” See 1981 Opns. St. Comp. No. 81-229, p.247-248. Rather, a town must provide for fire protection through the formation of “fire, fire alarm or fire protection districts.” Id. In exercising its authority under Section 170 of the Town Law, “A town board may, upon its own motion and without a petition, establish fire protection districts in such town...after a public hearing thereon.... After such hearing and upon the evidence given thereat, the town board...shall determine by resolution whether it be in the public interest to establish the proposed...fire protection district...” N.Y. Town Law §170(2) (McKinney 2013). Section 170(2) continues: “When the boundaries of such fire protection district...shall have been finally determined, the town board...shall adopt a resolution establishing...the district and shall comply with the provisions of subdivision one of section one hundred seventy-three of this chapter.” Id. That was the process followed here. On August 10, 2015, the Town Board not only dissolved the extant Champion Fire Protection District effective 16 December 31, 2015, (R 140) but by resolution created Town of Champion Fire Protection District No. 1 and, by separate resolution created Town of Champion Fire Protection District No. 2 to become effective the same date. (R 141). Both of these new fire protection districts were also the subject of separate public hearings held on August 10, 2015. (R 140-141). Resolutions establishing Champion Fire Protection District No. 1 and Champion Fire Protection District No. 2 were then introduced and adopted (R 141; 145-148). To comply with the mandate of Town Law Section 170(2) and to comply with the provisions of Section 173(1) of the Town Law, certified copies of each resolution were filed with the office of the Jefferson County Clerk (R 153- 171) and were further filed in the office of the State Comptroller. (R 173). There can be no doubt that “more is going on here” than is presented by the instant special proceeding. In fact, this brief provides the Court with the “Status of Related Litigation,” which Appellants’ brief failed to provide. See 22 N.Y.C.R.R. §500.13(a). That “status” shows the Court that a separate Article 78 proceeding was commenced against the Town in 2014 by Ms. Waite (the Petitioner in this special proceeding) and the Champion Volunteer Fire Company, Inc. 17 After the close of the public hearing on the Plan for Dissolution on August 10, 2015, Deputy Supervisor Ferguson spoke to clarify remarks made during the public hearing in opposition to the Plan and his comments were directed to the background dispute with the Champion Fire Company. His comments were the following: [That] the petition and subsequent vote was to dissolve the existing Champion Fire Protection District and was not to form a fire district; that a petition to form a fire district must contain information regarding the proposed rate and requires signatures for fifty-one percent (51%) of the assessed value in the proposed district; that a fire district would be another taxing entity and that more taxes are not in the best interest of the property owners; that the Champion Fire Company does not have the capability to protect a major structure like the Carthage High School; that the original draft of the plan for dissolution did include the Champion Fire Company but that the company’s failure to adhere to the terms of their contract and the subsequent termination of that contract caused the plan to be redesigned; that the failure of the company to adhere to the terms of their contract has been upheld by the State Supreme Court; [and]...Mr. Ferguson stated that he believes the developed plan for dissolution will provide fire protection by capable, trained departments. (R 140). Mr. Ferguson made further reference to the Town’s dispute with its Fire Company at paragraphs 21-22 of his affidavit in support of the Town’s Verified Answer. 18 POINT IV THE PROVISIONS OF ARTICLE 17-A OF THE GENERAL MUNICIPAL LAW AND ARTICLE 11 OF THE N.Y. TOWN LAW MUST BE READ TOGETHER a. Article 17-A is in pari materia with the provisions of the Town Law. Article 17-A of the General Municipal Law deals with the dissolution of a “Local Government entity,” not the creation of one. In the context of the creation of town fire, fire alarm and fire protection districts, Article 11 of the Town Law remains intact. Appellants’ argument is that the dissolution of the extant Town of Champion Fire Protection District somehow required the creation of a fire district. But Article 17-A of the General Municipal Law and Section 170 of the Town Law relate to the same subject and “are in pari materia and ‘should be construed together unless a contrary intent is clearly expressed by the Legislature.’” Albany Law School v. New York State Office of Mental Retardation and Developmental Disabilities, 19 N.Y.3d 106, 121 (2012), citing Matter of Plato’s Cave Corp. v. State Liq. Auth., 68 N.Y.2d 791, 793 (1986). In such a situation, “Courts must harmonize the various provisions of related statutes and...construe them in a way that renders them internally compatible.” Yatauro v. Mangano, 17 N.Y.3d 420, 427 (2011), citing Matter of Dutchess County Dept. of Social Servs. v. Day, 96 N.Y.2d 149, 153 (2001). In this case, “The Legislature, presumed to know what 19 statutes are in effect when it enacts new laws (citation omitted) must have been aware of [Article 11 of the Town Law] when it enacted [Article 17-A of the General Municipal Law] and intended each to have full effect.” People ex rel. Sibley on Behalf of Sheppard v. Sheppard, 54 N.Y.2d 320, 325 (1981). See, also, Odunbaku v. Odunbaku, 28 N.Y.3d 223, 229 (2016) (“the Legislature would have been aware of the requirement to express in the most direct, unequivocal terms any intent to “specifically exclude the necessity of serving counsel [for a party]”, citing Matter of Bianca v. Frank, 43 N.Y.2d 168, 173 (1977). b. No “repeal by implication” exists requiring the creation of a local government entity. Appellants insist that Article 17-A of the General Municipal Law, containing procedures to be followed for dissolution of a fire protection district, somehow also then required the Town Board to form a type of local government entity over which the Town has no control. (See Appellants’ brief, page 15). But, Article 17- A mandates no such thing. Essentially, therefore, Appellants are essentially arguing a “repeal by implication” of the Town Board’s authority under Town Law Section 170 to create a fire, fire alarm, or fire protection district. This Court has repeatedly held that “‘[r]epeal or modification of legislation by implication is not favored in the law’ and that the doctrine will ‘be resorted to only in the clearest of cases.’” Natural Resources Defense Council, Inc. v. New 20 York City Department of Sanitation, 83 N.Y.2d 215, 222 (1994), citing Matter of Consolidated Edison Co. v. Department of Environmental Conservation, 71 N.Y.2d 186, 195 (1988) and Ball v. State of New York, 41 N.Y.2d 617, 622 (1977). According to the Court in Consolidated Edison, supra, “absent an express manifestation of intent by the Legislature--either in the statute or the legislative history---the courts should not presume that the Legislature has modified an earlier statutory grant of power to an agency (citation omitted).” Id. at 195. Thus, in Consolidated Edison, the Court held that the Legislature, by enacting the Oil Spill Prevention, Control and Compensation Act of 1977, and the Control of the Bulk Storage of Petroleum Act of 1983, did not intend to disturb the Department of Environmental Conservation’s pre-existing power to promulgate regulations in the areas of bulk petroleum storage. Id. Perhaps hitting a little closer to home, this Court, in Alweis v. Evans, 69 N.Y.2d 199 (1987), held that the adoption of Section 302 of the Judiciary Law, requiring that stenographers be paid a fee for the production of transcript of proceedings, did not constitute an implied repeal of Section 299 of the Judiciary Law requiring a stenographer, “upon request, “[to] furnish... without charge to the 21 judge holding a term or sitting...a copy written out at length from his stenographic notes, of the testimony and proceedings, or a part thereof, upon a trial or hearing, at that term or sitting.” Finding that “some separate field of operation can be found for each [provision],” this Court reasoned: Repeal by implication is distinctly not favored in the law. Obviously, the judiciary should not lightly infer that the Legislature has repealed one of its own enactments when it has failed to do so expressly; the Legislature is hardly reticent to repeal statutes when it means to do so. Id. at 204. The provisions of Article 17-A of the General Municipal Law and Article 11 of the New York Town Law also clearly each have their own “field of operation.” The former is to force the hand of a legislative body to consolidate or dissolve; the latter leaves it to the town board of a town to determine how best to provide fire protection services for the town’s citizens. No implied repeal can, or should be discerned by the Legislature’s adoption of the “New N.Y. Government Reorganization and Citizen Empowerment Act”: particularly when the Legislature clearly did not repeal Section 170 of the New York Town Law dealing with the establishment of town fire, fire alarm and fire protection districts. 22 POINT V APPELLANTS’ CLAIM THAT THE TOWN WAS REQUIRED TO ADOPT AN ELECTOR INITIATED DISSOLUTION PLAN CALLING FOR THE ESTABLISHMENT OF A FIRE DISTRICT LEADS TO AN ABSURD RESULT Appellants take the position that the adopted referendum for the dissolution of the extant fire protection district acted as a mandate to the Town Board to form a fire district. See, for example, page 23 of Appellants’ brief where they claim: Under the Plan, Respondent impermissibly remains in control of the fire protection district and remains the governing body required to contract for fire protection (citations omitted).” 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. Let’s be clear on this point---Appellants seek to use the provisions of Article 17-A, designed to consolidate or eliminate a layer of government, as a cudgel to force the Town Board to create an entirely new political subdivision of the State with separately elected fire commissioners and a separate fire district tax. This Court has held, on numerous occasions, that courts are “governed by the principle that we must interpret a statute so as to avoid an unreasonable or absurd application of the law.” People v. Pabon, 28 N.Y.3d 147, 156 (2016), citing People v. Garson, 6 N.Y.3d 613, 614 (2006) and People v. Santi, 3 N.Y.3d 23 234, 242-244 (2004). The Pabon Court continued: “Indeed, ‘courts have repeatedly rejected statutory constructions that are unconscionable or antithetical to legislative objectives,’” Id., citing Matter of New York State Assn. of Criminal Defense Lawyers v. Kaye, 96 N.Y.2d 512, 519 (2001). Thus, the Court in Pabon refused to adopt a defendant’s interpretation of a statute of limitations governing the prosecution of sex offenses against children which would have led to the result that “had defendant been accused of sexually abusing [the subject] just once, he could have been prosecuted up to and until 2015, but having been accused of continued sexual abuse over a three-month period, his prosecution was entirely foreclosed after 2004.” Id. at 156-157. Finding that defendant’s interpretation “does less to prevent a recurrence of sexual abuse of children than to incentivize a child abuser to commit multiple acts,” this Court found the interpretation was, indeed, “unconscionable or antithetical to [the] legislative objectives.” Id. at 157, again citing Assn. of Criminal Defense Lawyers, supra. In short, to read Article 17-A as a statute which would require a town to create a layer of government is an interpretation of the statute that fails to avoid an “unreasonable or absurd application of the law.” People v. Garson, 6 N.Y.3d 613, 614 (2006); People v. Santi, 3 N.Y.3d 234, 242-244 (2004). Such an interpretation should be rejected, as its purpose is to encourage the elimination of layers of government. 24 POINT VI APPELLANTS ARE NOT TRULY CONCERNED OVER WHETHER THE EXTANT FIRE PROTECTION DISTRICT WAS DISSOLVED; THEY ARE UPSET THAT TWO SEPARATE FIRE PROTECTION DISTRICTS WERE ESTABLISHED IN ITS STEAD It really cannot be argued that the extant fire protection district of the Town was not dissolved---of course it was. As set forth earlier in this brief, the Legislature’s stated intent was that “dissolution takes effect when the governing body...approves a final version of the plan.” 2009 McKinney Session Laws of New York Ch. 74 at p. 1530 (West 2010). The plan of dissolution was followed, and that plan specifically recited that the former fire protection district would be dissolved as of December 31, 2015, and would be replaced by two newly created fire protection districts. Each of those districts would contract with a separate fire department for the provision of fire protection services within the newly created district. (R 127). The reason for the dissolution of the former fire protection district is simple: the voters voted for it at a referendum held in December of 2014. Appellants make the claim that the reason the voters wanted to eliminate the fire protection district was to create a new taxing entity---a fire district, which would be out of the control of the Town and placed under the control of to-be-elected fire commissioners with the opportunity to set the level of fire service and the level of taxes needed to fund 25 that fire service. But, if the “will of the people” was to establish a fire district, why was not a petition presented to establish a fire district pursuant to the provisions of New York Town Law §171(1)? A simple reading of that statute, containing the requirements for obtaining a valid petition to establish a fire district, makes the answer to that question quite clear. Section 171(1) requires a petition containing the signatures of “resident taxpayers owning taxable real property aggregating at least one-half of the assessed valuation of all the taxable real property of the proposed district or extension thereof owned by resident taxpayers....” N.Y. Town Law §171(1) (McKinney 2013). Respondent asks this Court to compare and contrast this high bar with the signature requirements for a petition for the dissolution of a fire protection district, or any other “local government entity” under Article 17-A, which requires only the signatures of “at least ten percent of the number of electors or five thousand electors, whichever is less, in the local government entity to be dissolved; [however] where the local government entity to be dissolved contains five hundred or fewer electors, the petition [must] contain the signatures of at least twenty percent of the number of electors.” See New York General Municipal Law, §779(2) (McKinney 2013). The overall statutory scheme therefore, is to make it easier to dissolve a governmental entity than it is to create one, at least in the situation where a new and independent taxing authority is involved. This of course makes sense. The goal of Article 17-A is to reduce layers 26 of government. Appellants wish to turn the statute on its head and require the formation of yet another. Appellants further ignore the fact that Section 171 of the N.Y. Town Law contains an additional level of review before a fire district can be formed. Even if a valid petition to form a fire district is submitted pursuant to Section 171(1), the petition merely requires a town board to conduct a public hearing, or hearings, on whether the fire district should be formed. After the public hearing(s) is held, Section 171(3) of the Town Law specifically states: “if it is determined that it be not in the public interest to grant in whole or in part the relief sought, the town board shall deny the petition.” Id. Thus, at the end of the day, the most that can be required of a town board upon receiving a petition for the establishment of a fire district is the holding of a public hearing, with the ultimate decision of what is deemed to be in the public interest to be left to the town board itself. Apparently, Appellants conflate a duty to dissolve with a duty to create. The Town Board’s duty is only to determine whether it is in the public interest to establish a new layer of government. If it determines it is not in the public interest, it is required to deny its creation. N.Y. Town Law §171(3) (McKinney 2013). Appellants would ask this Court to usurp the long-established powers of a town board to deal with fire protection. See, generally, §170 of the N.Y. Town Law, which was initially adopted in 1932 to take action only upon a petition to 27 “establish or extend fire districts, fire alarm districts, and fire protection districts;” and amended in 1936 to add subdivision (2) to allow the establishment or extension of “fire districts or fire protection districts” upon a Town Board’s own motion and without a petition, after a public hearing. Although subsequently amended for other reasons, the basic autonomy of a Town Board under Section 170 has been in existence for 81 years. It is clear that Appellants believed all along that a new fire district should be formed. Indeed, three of the named Appellants appeared and spoke at the public hearing concerning forming a fire district. (R 140). It was immediately after the public hearing that Deputy Supervisor Ferguson spoke concerning the fire district issue. See his comments (R 140) and the exposition of those remarks at Point III of this brief. Indeed, Mr. Ferguson’s affidavit in support of the Town’s Verified Answer to the underlying Article 78 petition (R 185-190), including its exhibits consisting of Town Board letters to the residents of the extant district (R 191-195) make clear why at least four-fifths of the Town Board believed that establishing two new fire protection districts, with two separate entities providing fire service (as outlined in the Plan of Dissolution) (R 125-127) was appropriate: a taxpayer’s cost of fire protection in a fire district was shown to be 2-3 times the cost of their fire protection in a fire protection district. (R 192-193). The Town Board’s letter of December 1, 2014 (R 194), signed by a unanimous Town Board, explained that 28 it was concerned that “another taxing entity” would result in an increase of taxes “when not necessary.” (R 194). The Town Board fulfilled its duty in “making a determination which was the job of the elected officials to [make].” (R 8). POINT VII ARTICLE 17-A IS NOT A ‘LOOPHOLE”AROUND A TOWN BOARD’S AUTHORITY TO ACT The situation presented by this case is exceedingly similar to that presented by the case of City of New York v. Stringfellow’s of New York Ltd., 96 N.Y.2d 51 (2001). In the Stringfellow’s case, the City of New York’s adoption of an “Amended Zoning Resolution” (“AZR”), requiring a minimum distance between certain “adult eating or drinking establishments” and areas “where children are likely to be present,” was challenged. During the pendency of an attack on the constitutionality of the AZR by Stringfellow’s and other establishments, Stringfellow’s “adopted a policy in which it purported to admit minors.” Id. at 54. After promulgating its “minor’s policy,” Stringfellow’s sought declaratory relief that it was not “an adult eating or drinking establishment” as defined by the AZR. Stringfellow’s argued that, because the AZR defined an “adult eating or drinking establishment” as one which regularly features “(1) live performances which are characterized by an emphasis on ‘specified anatomical areas’ or ‘specified sexual activities’ or....(3) employees who, as part of their employment, 29 regularly expose to patrons ‘specified anatomical areas;’ but which is not customarily open to the general public during such features because it excludes minors by reason of age,” the adoption of a “minors policy” meant that the establishment is “customarily open to the general public” and therefore did not “exclude [ ] minors by reason of age” so as to fall within the parameters of the AZR. Id. at 55 (emphasis in original). This Court held that “Stringfellow’s so-called minors policy is an obvious attempt at an end run around the AZR.” Id. at 56. The Court concluded: “When the lawmakers' purpose is as clear as it is here, we will not bend their words into the shape of a loophole.... The AZR was designed to keep children away from these establishments, not to have them invited in as customers.” Id. Likewise, the purpose of the Article 17-A was to promote consolidation or dissolution of taxing districts, not to create them. It is not a “loophole” around the powers of a town board so as to force the board to take particular legislative action. While provisions exist which would permit the establishment of a fire district by a town board if “it is in the public interest,” those separately set-forth provisions contained at §171 of the N.Y. Town Law were not initiated here. Article 17-A of the New York General Municipal Law should not be construed in such a way as to render §170 and §171 of the N.Y. Town Law meaningless. CONCLUSION For all the foregoing reasons, the decision of the Appellate Division, Fourth Department, finding that the Town of Champion complied, in all respects, with the procedural requirements of Article 17-A of the General Municipal Law, resulting in the appropriate formation of two new fire protection districts, should be affirmed. Respectfully submitted,Dated: September 19, 2017 Robert J. Sweyfesq. SLYE LAW-OFFICES, P.C. Attorneys for Respondent-Respondent Town of Champion 104 Washington Street Watertown, New York 13601 Telephone: (315)786-0266 TO: Bradley M. Pinsky, Esq. PINSKY LAW GROUP, PLLC. Attorneys for Petitioners-Appellants 5789 Widewaters Parkway Syracuse, New York 13214 Telephone: (315)428-8345 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 6,949 words.