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 (Emirt nf Appeals nf tfje sÿtate nf Sfetu |fnrk 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. REPLY 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: October 4, 2017 TABLE OF CONTENTS TABLE OF AUTHORITIES INTRODUCTION POINT I THE WILL OF THE VOTERS MUST BE CARRIED OUT POINT II ARTICLE 17-A REQUIRES ACHIEVING DISSOLUTION AND NOT SIMPLY FOLLOWING A PROCEDURE POINT III DISSOLUTION DOES NOT OCCUR MERELY UPON PASSAGE OF A RESOLUTION ADOPTING THE DISSOLUTION PLAN POINT IV RESPONDENT IS NOT FREE TO REPLACE THE DISSOLVED FIRE PROTECTION DISTRICT WITH ONE OR MORE FIRE PROTECTION DISTRICTS CONCLUSION ii 1 1 1 2 2 4 4 6 6 8 i TABLE OF AUTHORITIES Statutes General Municipal Law § 750 General Municipal Law § 785 General Municipal Law § 786 General Municipal Law § 787 General Municipal Law § 792 General Municipal Law Article 17-A Town Law § 170 Town Law § 171 1,4, 5,8 4,5 2 3,5 7 2, 3, 6, 8 7 7 ii INTRODUCTION Respondent’s arguments can be summarized as follows: 1) Respondent is free to ignore the will of the voters to actually dissolve the fire protection district; 2) General Municipal Law Article 17-A requires only that a local government entity follow a procedure and need not actually achieve dissolution; 3) The fire protection district was dissolved because a resolution was passed saying it was dissolved; 4) Respondent is free to replace the fire protection district with one or more fire protection districts because the Town Law permits Respondent to establish fire protection districts. POINT I THE WILL OF THE VOTERS MUST BE CARRIED OUT Article 17-A requires that the “people’s will be carried out” (R. 47) by the “termination” of the existence of the local government entity. General Municipal Law § 750 (5). The requirement that the “people’s will be carried out” has no end date. Respondent is bound by the people’s will and cannot create or continue a fire 1 protection district. The residents voted to no longer reside in a fire protection district and the legislative history makes clear that their will must reign supreme. Respondent never once argues that its elector initiated dissolution plan (hereinafter “Dissolution Plan”) complies with the will of the voters to eliminate the existence of fire protection district. Instead, Respondent continuously argues that its judgment should supplant the will of the voters and that Respondent has the right to determine how to provide fire protection, including by utilizing one or more fire protection districts. POINT II ARTICLE 17-A REQUIRES ACHIEVING DISSOLUTION AND NOT SIMPLY FOLLOWING A PROCEDURE Respondent argues that General Municipal Law Article 17-A requires a local government entity only to follow a procedure and does not require it actually to achieve dissolution. To the contrary, “dissolution shall mean the termination of the existence of a local government entity.” General Municipal Law § 750 (5). Article 17-A requires that the local government entity actually “accomplish and complete the dissolution” (General Municipal Law § 786 [1]) and do more than merely create a Dissolution 2 Plan which does not accomplish and complete dissolution, but rather continues the existence of the fire protection district, albeit in some altered form. Article 17-A requires more than just following a procedure. General Municipal Law Section 787 imposes upon Respondent a “duty to wind down”. General Municipal Law § 787 (2). Section 787 (1) requires that: Upon successful completion of dissolution proceedings pursuant to this title, 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, if applicable and appropriate under law, levy taxes and assessments as necessary to accomplish the dissolution. It is impossible to conclude that the Legislature created a statute authorizing residents to petition for dissolution only to then permit Respondent to ignore the residents’ instructions when devising the Elector Initiated Dissolution Plan by permitting the Dissolution Plan to continue the existence of the same type of local government entity in any form. The Dissolution Plan must accomplish and complete dissolution by terminating the existence of the fire protection district and winding down its affairs. Respondent’s Dissolution Plan fails to comply with any of the statutory requirements. Respondent again does not argue that the Dissolution Plan achieves dissolution. Indeed, Respondent argues only that the fire protection district was 3 dissolved because Respondent approved a resolution dissolving the fire protection district. Respondent’s circular argument overlooks the fact that the Dissolution Plan failed to achieve “termination of the existence of a local government entity.” General Municipal Law § 750 (5). Respondent never once argued that the fire protection district does not continue to exist, and indeed, it still does. POINT III DISSOLUTION DOES NOT OCCUR MERELY UPON PASSAGE OF A RESOLUTION ADOPTING THE DISSOLUTION PLAN Respondent argues, “Dissolution was accomplished upon adoption of the Town Board’s resolution on August 10, 2015”. (Respondent’s Brief, p. 12; see, R. 140). Respondent never argues that dissolution was “complete” in compliance with General Municipal Law § 750 (5). Appellants assert that the date on which the dissolution proceedings are complete is immaterial if, as argued above, the Dissolution Plan never actually results in the termination of the local government entity. The fire protection district could not be “dissolved pursuant to an elector initiated dissolution plan” (General Municipal Law § 785 [1]) if the Dissolution Plan did not actually plan for “termination of the existence” of the fire protection district. General Municipal Law § 750 (5). Thus, dissolution never occurred in this instance. 4 Parenthetically, dissolution does not occur at the adoption of the Dissolution Plan. The statute makes clear that adoption of the Dissolution Plan results in “completion of dissolution proceedings” (General Municipal Law § 787 [1]) and imposes a minimum of a forty-five day moratorium for the effective date of dissolution. General Municipal Law § 785 (1). In order to complete dissolution and achieve “termination”, the fire protection district’s affairs must be wound down. General Municipal Law § 787 (1). Therefore, dissolution did not occur upon Respondent’s approval of the Dissolution Plan. To repeat, Appellants’ primary argument can be summarized as follows: Respondent could not complete “dissolution proceedings” in accordance with General Municipal Law § 787 (1) if the Dissolution Plan did not propose to terminate the existence of the fire protection district as required by Section 750 (5). Therefore, Respondent’s adoption of a Plan which did not propose to terminate the use of a fire protection district could not achieve statutorily compliant dissolution. This argument is fully set forth in Appellants’ Brief. Respondent ignores the requirement that the fire protection district actually be terminated, ignores the requirement to “wind down”, and appears to argue that the contents of the Dissolution Plan are immaterial so long as its resolution contains 5 rhetoric that the fire protection district is dissolved. Respondent’s “form over substance” argument cannot be what the Legislature intended. The legislative history makes clear that local government entity must “ensur[e] the people’s will is carried out”. (R.47). Article 17-A vests courts with the authority to compel dissolution. The statute never sought to permit a governing body of a local government entity to continue the existence of the local government entity to be dissolved in any form. The collective will of the voters of the town of Champion fire protection district was to cease residing in any fire protection district. Not one single resident should be forced to continue to reside in a fire protection district. This Court should ensure that the people’s will is carried out. POINT IV RESPONDENT IS NOT FREE TO REPLACE THE DISSOLVED FIRE PROTECTION DISTRICT WITH ONE OR MORE FIRE PROTECTION DISTRICTS Appellants have already addressed this argument in their Brief. However, Respondent now argues that the Legislature intended to permit a governing body of the dissolving local government entity to replace the dissolving local government entity with anything the governing body desires. In other words, Respondent argues 6 that the Dissolution Plan need not carry out the will of the voters and include the termination of the fire protection district. It is unthinkable that the Legislature intended a town to put back a local government entity which the voters instructed be taken away. Respondent argues that this Court should interpret the Legislature’s decision not to repeal statutes such as Town Law §§170 and 171 which allow for the creation of local government entities as providing Respondent with permission to include a fire protection district in its Dissolution Plan. This argument is both inaccurate and a non-sequitur. First, General Municipal Law § 792 makes clear that Article 17-A only supersedes and replaces certain statutes which address the “procedures and requirements for the consolidation and dissolution of local government entities to the extent such laws are not consistent with this article”. This section does not in any way refer to statutes which govern the creation of local government entities. Respondent is simply wrong. Second, Respondent attempts to draw a connection between the continued existence of Town Law §§170 and 171 and the content of its Dissolution Plan. Respondent argues that because Town Law §§ 170 and 171 were not repealed, 7 Respondent has the authority to continue the existence of a fire protection district in its Dissolution Plan. Respondents premise is illogical and a non-sequitur. It cannot be disputed that there is nothing in Article 17-A that specifically permits the Dissolution Plan to include the re-creation or continuation of the same type of local government entity to be dissolved. Conversely, Article 17-A requires that the “people’s will be carried out” (R. 47) by the “termination” of the existence of the local government entity. General Municipal Law § 750 (5). The requirement that the “people’s will be carried out” has no end date. Respondent is bound by the people’s will and cannot create as part of its Dissolution Plan one or more fire protection districts. CONCLUSION Respondent’s failed to carry out the will of the voters and require the voters to continue to reside in a fire protection district. Respondent’s Dissolution Plan failed to comply with the statutory definition of dissolution in that the Dissolution Plan did not require Respondent to “terminate” the existence of the fire protection district. The Dissolution Plan violated the requirements of Article 17-A and should be declared void and not permitted under General Municipal Law Article 17-A. 8 Dated: October 4, 2017 Respectfully submitted: Pinsky Law Group, PLLC Attorneys for Appellants h By: Bradley M. Pinsky \ 5789 Widewaters Pkwy Syracuse, New York 13214 (315) 428-8345 Brad@pinskylaw.com 9 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 1,571 words.