To the Editor:
Many readers may be aware that last March, a lawsuit was filed against the Village, challenging the Village Board’s enactment of the Harmon rezoning law. The people who filed the lawsuit – two Harmon area property owners and their pro bono attorney, also a Harmon resident – set forth thirteen separate challenges to the Village Board’s analysis of, and passage of the law. Some challenges assert that the Village Board ignored or understated the likely impacts of the law on the Harmon commercial district and the surrounding neighborhood. One example of this type of challenge is that the Village Board used one set of assumptions about the residential development they predict will be built to project the impact on school taxes, but used a conflicting set of assumptions regarding the residential development to project the law’s impact on parking and traffic, because using the same assumptions for both analyses would result in projections of unacceptably negative impacts on the area. Other challenges assert that the Village Board failed to follow the proper legal procedures in passing the law. One example of this type of challenge is that the Village Board changed the law in a significant way after referring it to the Westchester County Planning Board, even though it is required to refer the final version of the law to that board. Yet another challenge to the law is that the plan’s goal – to encourage the transformation of a historic, small-scale commercial strip to an apartment hub with first-floor storefronts – is contrary to the goals for that area that are included in the Village’s Comprehensive Plan.
Several months ago the Village Board announced that its response to the lawsuit would be to repeal and re-enact the Harmon rezoning law. After announcing this decision, the village attorney submitted papers to the court, arguing that, instead of requiring the village to answer the charges, the judge should instead dismiss the lawsuit because the Village’s announcement rendered the challenges to the law moot – in other words, it was the Village Board’s position that its stated intent to re-enact the law had the effect of making all of the challenges in the lawsuit legally irrelevant. Members of the Village Board and the village attorney have publicly justified this plan as "the cheaper way" to deal with the lawsuit, although they have also announced in Village Board meetings that pursuing this plan has cost over $40,000 as of the end of May – which was before much of the Village’s legal papers had even been submitted to the court.
Recently, the judge that will decide the case made a decision regarding the Village Board’s request to dismiss the challenges against it. Judge Albert Lorenzo held that, contrary to the Village’s argument, the challenges were not rendered moot by the Village’s plan to re-enact the law. Further, Judge Lorenzo has ordered the Village to answer the charges by September 9, 2010. Moreover, the judge has imposed an injunction – a legal prohibition against the enforcement of the replacement Harmon rezoning law that the Village Board is in the process of enacting – until after he has decided the merits of the challenges set forth in the lawsuit. It is hard to imagine a more conclusive repudiation of the Village Board’s legal strategy.
More importantly, however, the judge’s decision makes one point vibrantly clear – rather than pursuing "the cheaper way" to deal with the lawsuit, the Village Board has instead wasted tens of thousands of taxpayer dollars on a vain effort to avoid answering the charges – and thus, avoid the possibility that they will be judged to have acted unlawfully in their consideration of, and passage of the original Harmon rezoning law last November. If the Village Board had truly been concerned with minimizing the lawsuit’s impact on village resources, it certainly seems clear that at least two other options would have resulted in a savings, especially in light of the Village Board’s intention to go through the process of re-enacting the law. First, the Village Board could have admitted to making even one mistake charged in the lawsuit. If they had done this, all of the other challenges in the suit would have actually been rendered moot. If, after admitting to a mistake the Village Board still wished to pursue this rezoning plan, the Village would have been required to re-enact the law – in other words, it would have been required to follow the same process it is currently undergoing, but without having spent over $40,000 in legal fees along the way. Second, instead of utilizing the procedural shenanigans that were recently rejected by the judge, the Village Board could have simply done what it was recently ordered to do: answer the charges and set forth a defense of its actions. This, too, would have saved significant village resources.
The question remains, however, what should be done regarding Harmon rezoning? It would seem that the most reasonable interpretation of the exceedingly close results of the last two village elections is that the residents of the Village are, essentially, evenly divided over this issue. It also seems clear from the comments made at multiple public input sessions that the majority of the residents of the Harmon neighborhood are opposed to this plan. Moreover, the chief architect of this plan has recently expressed doubts as to whether the plan remains economically feasible, given recent legislative efforts to pass laws prohibiting a certain form of housing discrimination. Given this situation, the Village Board’s single-minded crusade to pass this law, at whatever cost, is simply inexplicable, and at this point certainly serves no meaningful purpose in this Village. Rather than sow further seeds of discord among its citizens, the Village Board should either devise an alternative and less divisive solution to the issue of revitalization of Harmon’s commercial area, or turn its attention and badly-needed village resources to pressing quality of life issues that currently affect large numbers of village residents – such as remedying the brown water problem faced by residents of several areas of the village. For sure, Croton and its hardworking, taxpaying residents deserve better leadership than has recently been shown.
Roseann Schuyler
POSTSCRIPT
Thanks for visiting my blog. The letter above, published in the Gazette, was an effort to speak to a broad audience regarding recent developments in the Harmon rezoning Article 78 action, not an effort to provide a nuanced legal analysis. This required a less technical approach to some finer legal points. Here, however, I have the opportunity to elaborate on a few points:
Referral of the law to the Westchester County Planning Board: The actual legal standard for referral requires that the law not be changed in any substantial or material respect after its referral to the County. What does “substantial or material” mean? In essence, it means that the final version of the law – or something really close to it – must be referred to the County. If any significant or important changes are made to the text of the law after referral, another referral must be made. In this case, after the Village Board referred the law to the County Planning Board, it added a number of parcels on Wayne Street and Croton Point Avenue to the area to be rezoned. I would note that in his decision, Judge Lorenzo characterized this change as, “substantial.”
Judge Lorenzo’s decision: Having had more time to consider it, I would note two things. First, it is not entirely clear what the parameters of the injunction imposed by the judge actually are, and it may very well be that the Village is not simply stopped from enforcing the new law, but rather, that it cannot take any step toward its passage. The actual language from the decision is, “[t]his Court…is now ordering an injunction at this time barring any implementation of the new Harmon Rezoning Laws until this petition is resolved.”
Second, the decision directs the Village to answer the Article 78 petition within 30 days of the decision’s issuance. Technically, it is not the decision that “ordered” the Village to answer, but, rather, the Civil Practice Law and Rules, which requires a party to answer a complaint or petition after a court denies a pre-answer motion, such as the motion to dismiss submitted by the Village. Strictly speaking, what Judge Lorenzo did was to provide the Village with an extension of time to answer, since the law only provides five days, not thirty, after the denial of a motion to dismiss. Judge Lorenzo was doing the Village a favor!!
The “Village Board”: In all references to the “Village Board,” its passage of the original law or its current crusade to re-enact the same law, it must be noted that Trustee Greg Schmidt is specifically excluded, as he was not a member of the Board that passed the law last November, and because he has expressed his disapproval of this law as a member of the current Board.
