1967-03-31 RGM (adj)51ak +
The Adjourned Meeting of the Town Board of the Town of Wappinger,
was held on Friday evening, March 31, 1967, at the Town Hall, Mill Street
Wappingers Falls, New York.
Present:
Joseph H. Fulton, Supervisor
Vincent S. Francese, Justice of the Peace
Louis Clausen, Councilman
Absent:
William J. Bulger, Justice of the Peace
Louis Diehl, Councilman
The meeting was called to order at 8:13 P.M.
Mr. Francese: I move that we recess into executive session with the
people from Robinson Lane. Seconded by Mr. Clausen. Unanimously Carried.
Emecutive session started at 8:14 P.M.
Meeting reconvened at 11:15 P.M. All members of the Board were present.
Others Present:
Joseph Quinn, Attorney
Harold Reilly, Attorney
Rudolph Lapar, - Engineer
RESOLUTION NO. 26, 1967
TOWN BOARD, TOWN OF WAPPINGER,
DUTCHESS COUNTY, NEW YORK.
FIXING TIME FOR SPECIAL ELECTION
TO VOTE ON,PROPOSITION UPON
PETITION FOR REFERENDUM ON
RESOLUTION APPROVING THE ESTAB-
LISHMENT OF THE TOWN OF WAPPINGER
GARBAGE DISTRICT AND THE CONSTRUCTION
OF IMPROVEMENTS PROPOSED THEREFOR I
The following resolution was offered by Mr. Francdese who moved
its adoption:
WHEREAS,- the• Town Board of. the Tbwn of Wappinger .did on the- 14th
day of -February, 1967, adopt a resolution providing Rix' the establishment
of the Town of Wappinger Garbage District in the Town=of Wappinger,
Dutchess County, New York, and the construction of th4 improvements
proposed therefor, which -said resolttion.was adopted Oubject to a permis-
sive referendeum, and
WHEREAS, a petition was filed with -the Town Clerk; of the Town of
Wappinger on .the 15th day of March, 1967, requesting 4 referendum vote
'at a special town election upon the proposition hereinafter set forth,
and
WHEREAS, no written objection to said petition has been filed
with the Town Clerk in the manner and within"the time` prescribed by
Article 7 of the Town Law -nor have objeetions thereto been presented
to the New York Supreme Court within the time or the manner prescribed
by said article, and
5 1,:4i
WHEREAS, the Town Clerk has, with the assistance of counsel to
the Town, prepared the proposition to be submitted to the qualified
electors and owners of taxable real property of said Town, outside of
the corporate limits of the Village of Wappingers Falls, in the form
hereinafter set forth.
NOW, THEREFORE, IT IS HEREBY
RESOLVED, that a special election to be OArticipated in by the
qualified electors of the Town of Wappinger, residing outside of the
corporate limits of the Village of Wappingers Falls, who are also
owners of taxable real property as shown upon the latest completed
assessment roll of said Tdwn and situate outside of the corporate
limits of the Village of Wappingers Falls and within the said Town
of Wappinger Garb&ge District, shall be held on April 20, 1967, on
which date the polls will be opened for voting, between the hours of
8:00 A.M. and 8:00 P.M., E.S.T., for the purpose of voting by ballot
on voting machinet upon the following proposition:
Shall the resolution entitled "A Resolution Approving the Establish-
ment of the Town pf Wappinger Garbage District in the Town of Wappinger,
Dutchess County, isTew York, and the Construction of the Improvements
Proposed Therefor!' adopted February 14, 1967 by the Town Board of the
Town of Wappinger approving the establishment of the Town of Wappinger
Garbage District in the Town of Wappinger, Dutchess County, New York;
approving the entry of said District into an agreement of Municipal
cooperation with the Town of Fishkill Garbage District, the Town of
East Fishkill Garbage District and the Villages of Wappingers Falls
and Fishkill to establish a jointly -operated sanitary land -fill, with
all necessary appurtenances for its proper operation, all as more
fully set forth and shown on the map, plan and report filed in the
office of the Town Clerk of Wappinger at an estimated maximum cost of
$225,000; determining that the method of financing said cost shall be
by the issuance of serial bonds of said Town maturing in annual install-
ments over a period not exceeding fifteen (15) years; determining that
the cost of said improvements shall be assessed, levied and collected
from the several lots and parcels of land within said District at the
same time and in the same manner as other town charges; and setting
forth a description of the boundaries,of said district, be approved?
AND IT IS FURTHER RESOLVED, that the said qualified electors who
are owners of taxable real property as referred to aforesaid and who
are residents of the following election districts shall vote at the
following designated polling places:
1. Voters of those parts of District Nos. 3 and 4 which
are situate outside the corporate limits of the Village of
Wappingers Falls, and voters of District No, 11 shall vote
at James S. Evans School, Route 9, Wappingers Falls, New York.
2. Voters of District Nos. 5 and 8 shall vote at Ketcham
High School, Myers Corners Road, Wappingers Falls, New York.
3. Voters of District Nos. 6, 7, 9 and 10 shall vote at
New Hackensack Fire House, Myers Corners Road, Wappingers
Falls, New York.
4. Voters of District Nos. 12 and 13 shall vote at Hughson-
ville Fire House, Old Hopewell Road, Hughsonville, New York.
5. Voters of District No. 14 shall vote at Old Chelsea
School House, Liberty Street, Chelsea, New York.
AND IT IS FURTHER RESOLVED, that the Town Clerk be and she hereby
is authorized and directed to give proper notice of the time, places
of voting and hours of voting in the said special election hereinbefore
referred to, by publishing such notice in the form and manner required
by Article 7 of the Town Law of the State of New York in the official
newspaper of the Town and by posting a copy of such notice upon the town
signboard pursuant to the provisions of said Town Law, and it is further
RESOLVED, that said notice to be given by the Town Clerk as
aforesaid shall contain a statement that copies of the resolution referred
to in the foregoing proposition are.on.file.in the Town. Clerk's office
and may be examined, upon request, by any qualified elector and property
owner in the proposed district on any day preceding thespecial election,
except Saturdays, Sundays or holidays, between the hours of 9:00 A.M.
and 4:00 P.M., E.S.T.
Seconded by : Mr. Bulger
Roll Call Vote: 5 ayes
Mr. Francese: In addition to this we feel. that a public information
meeting for all persons in the Township, who want to find out answers
to. any questions in their mind before casting aT:proper-.vote, should be
held before the referendum vote. .We would like. to set.a tentative date
for Thursday, April 13, and suggest Mr. Clausen be on the committee, to
get a.roomin one of the schools.
Mr. Diehl:' Would it be proper to request the officers of the Dutchess
landfill to. attend.,
Mr. Bulger: This is. being held..for the purpose of informing the people
of the Town of Wappinger. I would not want to see the people of
Wappinger crowded out.
Mr. Francese: We should be able to take some action on the.6th. If we
can't get it on the 13th, have it sometime between the 10th and the 13th.
Mr. Bulger suggested a map, of the Election Districts be made available
to the press so that they may, if they desire, publish it for the use
of the people.
Mr. Clausen: Have a map and the polling places down, but note polling
places have been changed for this purpose only.
Mr. Fulton: Let the record show that Mr. Osten has stated there will
be no change for the publication.
Mr. Fulton - On Establishing a water district at Oakwood Knolls
The Board discussed this last night, this step is necessary to proceed
in our negotiations. I would like to act on this tonight.
Mr. Clausen: In the final signing of the papers we want to make sure we
•
have a right, of way into the plant. 'Do we have a 'right of way?
Mr. Quinn said it would be part the .instruments of title.
Mr. Francese: I so move the order establishing the district, seconded
-j
5x8
by Mr. Diehl. Unanimously Carried.
STATE OF NEW YORK
COUNTY OF DUTCHESS : TOWN. OF WAPPINGER
in the Matter of _the Establishment
of the
OAKWOOD KNOLLS WATER DISTRICT,
in the Town of Wappinger, County of Dut-
chess and State of New York, pursuant to
Article 12-A of the Town Law.
ORDER
ESTABLISHING
DISTRICT
A map, plan and report, prepared in the manner, and with such
detailr as was determined by the Town Board of the Town of Wappinger,
having been filed in the office of the Town Clerk of the Town of
Wappinger,, the same being a map, plan and report relating to the
establishment of a water district wholly situate within said township
to be known as the Oakwood Knolls Water District, in an area in said
township hereinafter described, and following the filing of the said
map, plan and report, all of which was. prepared; approved and filed
in accordance with the requirements and provisions of Article 12-A
of the Town Law, the Town Board of the Town of Wappinger having duly-
adopted an order at a regular meeting of said ._Town Board held on the
5th day of August, 1965, at the Town Hall, Mill Street, Wappingers
Falls, New York, which said order was entered in the minutes of the
proceedings of the Town Board of the Town of Wappinger and which same,
among other things, recited a description of the boundaries of the
proposed district in a manner sufficient to identify the lands included
therein as in a deed of conveyance, the improvements proposed, the
maximum amount proposed to be expended for the improvement and the
maximum amount proposed to be expended for the performance or supply
of services,the proposed method.of financing to be employed, the
fact that a map, plan and report describing the same were on file in
the Town Clerk's Office of the Town of Wappinger for public inspection
and which same specified the time when and the place where the said
Town Board of said township would meet and hold a public hearing to
hear all persons interested in the subject thereof and concerning
the same, and the Town Board of the Town of Wappinger having duly
caused a copy of such order to be published at least once in the
official paper of said township, the first publication thereof
being not less than ten (10) nor more than twenty (20) days before
the day set therein for the hearing,as aforesaid, and•a copy -of
the same being duly posted on the signboard of the Town of Wappinger
maintained pursuant to Subdivision 6 of Section 30 of the Town Law,
said posting being not less than ten (10) no more than twenty (20)
days before the day designated.for the hearing as aforesaid, the -same
setting forth that the cost of acquisition and construction would be
assessed by the Town Board of the Town•of Wappinger in proportion as
nearly as may be to the benefit which each lot or parcel will derive
therefrom, and thereafter, and in accordance with said notice, a
public hearing having been held at the Town Hall, Mill Street, Wap-
pingers Falls, New York, on the 9th day of September, 1965, at 7:30
o'clock in the afternoon thereof at which same proff was adduced and
all persons interested having been heard and which said meeting was
adjourned to the 7th day of October, 1965, at 7:30 o'clock in the
afternoon thereof, and on said later date the Town Board of the
Town of Wappinger having determined by resolution that the notice
of hearing was published and posted as required by law, and was
otherwise sufficient, that all the property and property owners
within the proposed district were benefited thereby, that all the -
property and property owners benefited were included within the
limits of the proposed -district, and that the establishment of such
district, as proposed, was in the public interest, that all of the
questions set forth and required in -the statute having been determined
in the affirmative and said Town Board having adopted a resolution
approving the establishment of the district with the boundaries as
determined as well as the acquisition of the facilities the subject
of such proceeding for the construction of -the improvement proposed
and the providing ofservicetherein which said resolution was adopted
subject to a permissive referendum in the manner provided in Article 7
of the Town Law, and a certified copy of such resolution of said Town
Board creating the said district -having been duly posted -and published
on the 14th day of October, 1965, as required bylaw, and more than
thirty (30) days having transpired: since the adoption of such resolu-
tion and no request for-apermissive referendum, as provided by law,
having been filed, or a petition therefor filed, and said Town Board
having authorized and directed the Supervisor to petition the Comp-
troller of the State of New York for permission in the establishment
of such district and a ceetified copy of such resolution, in duplicate,
having been filed in the office of -the State Department of Audit and
Control at Albany, New York, together with the application therefor,
in duplicate, duly verified by Richard H. Linge, Supervisor of the Town
of Wappinger the same -requesting permission of -the Comptroller of the
State of New York for permission to create such district and the same
being accompanied by the supporting documents required by statute
with due proof of posting and publishing as required, and containing
the statements and factual information required by the statute, as well
as the statement of the manner in which it was proposed to finance the
cost. of the improvement, and the State Comptroller having duly given
notice thereof to the -Board of Supervisors.of the County of Dutchess,
and in which such proposed district is located, and said -Board of
Supervisors having neglected, omitted and failed to file any objections
thereto, in writing in the office of the Department.of Audit and Control,
as provided for by statute, -and the State Comptroller having determined
that the public interest would be served by the establishment of. the
district and also that the cost thereof is not an undue burden upon
the property of the proposed district and he having made a determination,
as required by law, by order, in duplicate, granting permission for the
establishment of the district, one copy of which was filed in the office
of the State Department of Audit and Control at Albany, New York, and
the other -in the office of the Town Clerk of the -Town of Wappinger, the
same being the township in which the proposed district is located, which
said order was dated the 30th day of December, 1965, and the Town Clerk
of the Town of Wappinger having presented such order to the Town Board
of the Town of Wappinger at the next regular meeting thereof, to wit,
the 20th day of January, 1966, it- is hereby
ORDERED, that a water district be established in the Town of
Wappinger, Dutchess County, New York, as described in the order of the
State Comptroller aforesaid, to be designated as the Oakwood Knolls
Water District of the Town of Wappinger, Dutchess County, New York,
the same to be within the following described premises, the boundaries
of which said district are hereby finally determined and bounded and
described as follows:
ALL that certain piece or parcel of land situate, lying and
being - in- the Town- of Wappinger, ' County of Dutchess and State
of New York, more particularly bounded and described as follows:
BEGINNING at a point on the northerly side of Myers Corners
Road, the said point being the southeasterly corner of the
herein described district, and the southwesterly corner of
lands now or formerly of the Transkrit Corp..; thence'
westerly along the said northerly line of Myers Corners
Road, the following courses and'distances: N-83° 55' 50"
W 83.80', S 85° 59' 10" W 232.30', N 83° 19' 50" W 19.30',
N 49° 10' 50"W 11.30' S 89° 02' 10" W 18.70', and S 75° •
42' 30" W 40.73' to a point; thence northerly, westerly,
and southerly along the westerly, southerly and easterly
lines of the herein described district the following
tf
courses and distances: .N-13° 41' 20" W 600.02', 4,750 42' 30"
W. 520.00' ,, - S. 12° 34' 50".E 100.08', S 37° 08' 40" W 456.14',
andS:149 12' 20 E 200.00' to a point on.the.northerly line
of the said Myers Corners Road; thence westerly along..the said,
northerly line -of. Myers Corners Road S.86° 06' 40," W. 18.32' , ,.
,and S 82° 30:' 40", W 202.36',to a point, said point being the
southwesterly corner of the herein described district;, thence
northerly along, the easterly line of lands now or formerly
of -Marshall the following courses and distances,: N 19 23'
30" E 354.74', N 1° 04' 30" E 314.70,.N.10 18.' 10" E 341.92', -_
N- 52° 45' 40"E. 115.42' , N 74° 54.' 10" E 16.40' , N. .569 01' 00",E,
19.66', _ N 69° 06' 20"-E-22.32', N 56°,20' 50",E 24.76',1,N 169
. 42' 40" W 515.70',,and N 16° 17' 30" W 678.79' to
a point, said point being the -northwesterly -corner ofthe-
herein described district; thence easterly along the southerly
line -of rands - now: or formerly of Winne the following courses
and distances; N 68° 52' 50" E 131.66', N 69° 03' 20" E.130,31'
N 68°..38' 00" E 44.00', N 69° 00' 10" E 66.47', N68° 26' 10"
E 90.88', N 14° 11' 40" E 148.12', N 26° 43' 50" E 38.66',N 12°
43' -30" E 69.00', N 27° 09' 30"g 50..98',, N•44° 56'.10!':E 63.60'4
.N 31°42' 00".,E 202.03', N-37°,52' oo".E 103.01', N 44° 04' 20" E
76.54', and N 369 13' 40"-E.146.94' to a point; thence continue
east along the sou.therly,line.,of lands now or formerly of.Glausen
N 7.9.9 00"-40" h 366.09' to, a point- in .the westerly line .of . lands
of Riccobono; thence southeasterly and easterly alpng the,wester-.
ly,and-southerly lines,of-said Riccobono the following courses
and distances: 8 15°.42' 10" E 290.78', S.16° 07' 40" E 616.79',
S 15° 56' 30.' E 224.59',.,S 16°.03' 50" E 236.77' and N.57° 36'
30" E 776.88',to a point, said point being the northeasterly..
corner of .the herein. described district; thence southerly along
the westerly line of lands now or formerly of the Transkrit Corp.
the following,courses and distances: S .1° 43' 00" E 621.15', S
24°.07' 00" W 187.70', S 50° 12' 50" W 153.97', S 489 13' 10"
W 83.00', S 4,0° 39' 50" W 99.9$', S 7° 00-' 10" W 408..15.', and
S 6° 39' 50" W 720.85' to the point or place of;beginning,.-
and it.is further
ORDERED that the Town Clerk of the Town of Wappinger shall cause
a certified copy of this final order, adopted pursuant to the provisions
of Article 12-A of the Town Law establishing such water district, to_be
duly recorded in the office of the Clerk of the County of Dutchess, the
same being, th. County in ,which . the Town .of Wappinger is located, within
ten (10) days hereafter, all as provided for by, Section 209-g of the
Town Law of the State of New York.
Mr. Diehl:.: In regard to the extension of the runway at the airport,
this Board voted previously to act as a friend to the court and passed
this resolution. To my knowledge this still stands on the record.
To my knowledge the only thing to hold up the Board from staying in
this action may be the expense ,incurred by the Town. There has been
an offer to pay for all the legal fees by outside interests and,
therefore,:I would like to have that motion stand and check into this
offer of paying for the expense.
Mr. Fulton: This proposal was made through the newspaper., I asked
attorney.
Mr. Quinn: A reporter from the newspaper called me this afternoon
about 4:15 and addressed himself to this question to be argued on April 7,
there's apparently been a misundeistanding here of our previously stated
opinions' and the' controllers opinion. The prohibition of Article 8,
Section I of the Constitution is not for the money _ it is extended or
does extend to faith, services, credit, power, prestige, or whatever
term one may want to'use, this town may not join in the action, period,
within the prohibition of the constitutional amendment, so it is not a
question of dollars and cents alone.
The following is a letter received from Audit & Control:
• March'14, 1967
Mr. Joseph H. Fulton' •
Supervisor '
Town of Wappinger
Town Clerk's Office
Mill Street
Wappingers Falls, N.Y.
Re: Town of Wappinger
Dear Sir:
This is in reply to your letter of -'February 20, 1967, ' in
which, as supervisor of the above -captioned town, you set forth
the fol lowing t
The Town was recently invited to join with -a private civic
group as an amicus curiae, or "friend of the court", in an appeal
of a decision of the Supreme Court of the State of New York -which
dismissed the complaint in a taxpayers' action brought by the
aforesaid -civic group. The action was brought against the county,
under section 51 of the General Municipal Law, by reason of a
decision of the board of supervisors to extend a certain runway
of the county airport. The town board of the'town in question
has voted to join with the aforesaid civic group as amicus curiae
in the appeal.' Now the question has been raised whether the taking
of such action by the town might constitute a gift of public funds
to private persons in` violation of the'gift prohibition' contained
in Article VIII, section 1, of the New York State Constitution.
You ask us to assist you in resolving this question. For our
convenience in ascertaining the issued, you have enclosed a copy of
the complaint in the taxpayers' action, together with other documents,
including a copy of the decision of the Justice of the Supreme Court
who dismissed the taxpayers' complaint.
The general tenor of an action brought pursuant to section 51
of the General Municipal Law is expressed in the first portion of
that statute as follows:
"All officers, agents, commissioners and other persons
acting, or who have acted, for -and On -behalf of any
county, town, village or municipal corporation in this
state,'and each and every one Of them, may be prosecuted,
and an action may be maintained against them to prevent
any illegal official -act on the -part of*any such officers,
agents, commissioners or other persons, or to prevent
waste or injury to, or to restore and make good, any property,
funds or estate of such county, town, village or municipal
corporation by any person or corporation whose assessment, or
by any number of persons or corporations, jointly, the sum. of
whose assessments shall amount to one thousand dollars, and
who shall be liable to pay taxes on such assessment in the
county, town village or municipal corporation to prevent the
waste or injury of who property theaction is brought, or
who have been assessed or paid taxes therein upon any assess-
ment of the above-named amount within one year previous to,
the commencement of any such action ***."'
We note from numerous cases interpreting the foregoing that the
gravamen of a taxpayers' action lies in either (a) the perpetration,
of an illegal official act beyond the power of the municipality in
question or (b) a corrupt and fraudulent act involving a waste or
diversion of the funds or an injury to the property of the munici-
pality against which the action is brought (i.e. the county herein.)
(Kraushaar v. Zion,1954, 135 N.Y.S. 2d 491; Bleecker, Luncheonette
v. Wagner, 1955, 141 N.Y.S. 2d 293, 301, aff'd 286 A.D. 828, 143
N.Y.S. 2d 628, reargument and appeal denied 286 A.D. 846, 143 N.Y.S.
2d 824; Simone V. Kennedy, 1961, 26 Misc. 2d 748, 212 N.Y.S. 2d 838;
Katz v. O'Keefe,1963, 19 A.D. 2d 529, 240 N.Y.S. 2d 359.)
We consider this a very important point in the matter before us,
because we note in the various allegations in the complaint herein
that the extension of the county airport runwa y in question is
attacked as being deleterious to the health, safety and welfare of
the inhabitants of this town and to the property and well-being of
the public at large. Accordingly, we are prone to wonder whether it
may be the view of the town board, in approving the town's participa-
tion in the lawsuit, that, in so doing, the town would be exercising
some of itszpolice-power prerogatives under section 130(15) of the
Town Law. If' SQ, we would be equally prone to doubt_ that its power
so to participate, if such power in fact exists, stems from these
facets, because, as we have stated, a proceeding under section 51
of the General Municipal Law must be predicated (_in this case )
upon waste or injury to county property or assets, nottothose
of the town.
Whether or not the town is a corporate county taxpayer, within
the meaning of section 51 is not known to us.. Whether it could, as
a matter of law, have been.a party plaintiff at the outset in the
taxpayers' action is also, necessarily, unknown to us (See 1949
Atty. Gen. 109, as to the legality of the State's instituting such
action where the State pays county taxes.) In any event, these
questions are academic, becuase the fact remain.s,that the town here-
in was not an original party and, quite obviously, could not
actually appeal the decision, which was rendered, not against it,
but against private parties. As a procedural proposition, if not
in other ways, the town is not a party in interest in this litiga-
ticn and, thus, insofar as we can see, has no true legal interest
in the outcome.
Of significance to us are two inferences to be drawn from the
facts and circumstances, as follows:
1. It seems to us that, notwithstanding whatever name is
chosen to characterize the town's role as participant at this
juncture, the town's real function in this appeal would be to
help the taxpayers, unsuccessful in the court below, bear the
expense of appeal in their private lawsuit;
2. The real purpose of the plaintiff -taxpayers in this action,
although they purport to be trying to enjoin county waste, seems to
be the protection of the market values of their private homes, which
are located near the proposed airport runway, and the suppression of
a possible private nuisance in the form of low-flying planes,
resultant noise and the like. (See complaint, allegations numbered
11, 32, 34 39.)
If either or both of the above -enumerated purposes are the
town'a real motivation herein, then we cannot see where a town
purpose is in any way involved. Whatever money the town might
spend in this appeal, then, would goto or in aid of these private
persons for private purposes and would, therefore, in our opinion,
constitute an unconstitutional gift in violation of Article VIII,
section 1, of the New. York State Constitution._
521
Without in any way anticipating the outcomeof_ the. appeal pend-
ing herein and without intending to pass on the questions:. of law which
will come before the Appellate Division for its consideration on appeal,
we can single out the point made by the justice in the lower court's
decision to .the effect that the: personal grievances of these home-
owner -taxpayers, concerning the hazards to their private property,
are not justiciable in an action brought to prevent public waste and
injury under section 51 and do notplay any proper part therein. We
cannot speculate' further on these matters which must ultimately be
decided by the appellate court, since it is the policy of this Depart-
ment not to venture opinions on matters in litigation, but we do, feel
that the lower court's almost total lack of interest in the personal
grievances of the plaintiffs stresses the personal or private aspects
thereof, as opposed to matters of public concern, and further tends to
stress thatthe town's attempted intercession would be involving it,
not in a town purpose, but rather in a private. purpose.
Turning .to the question of- .the: town's proposed role of amicus
curiae_on_the appeal, we find that. there is no statutory law on the
subject. 'Am amicus curiae is a creation of jurisprudential history,
much akin to a concept of the common law. Two outstanding cases
describing the functions and limitations of an amicus curiae are
Comes v.: Fisher, 1934r 1951- Misc. 222,: 271- N.Y.S. 379, and Kemp v.
Rubin, 19.46, 64. N.Y.S. 2d 510. Both -of these authorities_ define an
amicus curiae as. "one who: gives information to the court on -some •
matter of law: in respect of which the court iso_ doubtful. " A further
definition given, is•"one who, as.a:stander.by, when a judge is in
doubt or mistaken in.a matter of law,' may inform the court. He is
heard only by leave,: and for the assistance of the court, upon a
case then before. it.. .He: is not: a_ party: to the :suit, . and_ has .no
control overt it". c . ,
In: the Kemp case,. supra,.. the court went on to say (p. 512):.
"From an. examinati.ont of- the many authorities upon the, subject,
it appears to be well settled_that the function of. an "amicus
curiae" is to call the courts' attention to law or facts or
circumstances . in, a matter. thenbefore it that: mays otherwise. .
escape its consideration; it is a privilege and not a right;
he is not a party and cannot assume the functions of a party;
he must accept the case before the court with issues made by
the parties, and_may not:control the litigation."
And, finally, in the Colmes case, supra (p. 381), it was pointed
out that "In casesinvolving:,ques.tions of important public interest
leave is generally granted to file a brief as amicus curiae". (emphases
supplied). Thus, as is also elsewhere indicated in the Colmes case,
the only function of the amicus curiae is to file a brief.
We wonder if the town board has realized this in reaching its
decision to participate in the appeal. If it has the intention of doing
more and of actively taking part in the proceedings on appeal, it would
seem obvious that it cannot legally do so. And, quite frankly, the more
it attempted to involve itself in this matter and to give financial and
other aid to the private taxpayer -appellants, the more flagrant we would
522 --
consider
22-
consider its violation of the Constitution's gift prohibition.
On the other hand, if the town board is aware of the. limitations
on the functions of an amicus curiae and if all it proposes to do is
file a brief,.we still think. that any expense incurredin this would
be an unconstitutional.gift,.for the reason._that the town was never
a party to the lawsuit, with the consequence that the appeal is the
private. business. of the unsuccessful plaintiffs., and for the further
reason that, substantively,_the issues in. the. appeal largely concern
private property rights ofprivate. citizens. . As. a._ practical matter,
it also occurs to us that, judging from_the voluminousand detailed
aspects of the complaint, there is no evidence that the plaintiffs
have yet been denied. active counsel, nor. is .there. evidence of the
inability of such counsel to prepare the plaintiffs' own brief.
' What. we. mean_ is that we can see no logical. reason why: the town
should_ prepare the- prime brief in. this appeal, at its_ own ..expense, on
behalf of these private taxpayers. who are already represented by counsel.
Nor can we even be certain that the. legal principles. and. factual circum-
stances -are such that, the .appellate court is likely to be "in. doubt or
mistaken" or needs an amicus. curiae "to call the. court's attention to
facts or situations th.at.may_have escaped consideration" (Colmes v.
Fisher, supra), .
Our entire point in. this opinion is that,_although we have examined
very many facets of the. initial lawsuit and of. the pending appeal, we
have been unable to find anything which would sufficiently constitute
a town purpose to warrant the town's use of town funds to take any
part whatever in such appeal, whether as amicus curiae or otherwise.
We think that any town funds So expended would, in effect, be & gift
to the private persons involved as plaintiff -appellants for their
private purposes, in. violation of .the New York. State Constitution
(Article. VIII, SS1) .
In passing, however,. we do wish. to. inject. the thought_ that we
have been asked to express our views only. on the internal question
of the propriety of expending town funds for the projected purpose.
We cannot possibly anticipate the appellate court's reac_tion.to a
petition by the town to interject itself as amicus curiae. .Should
this court conclude. that. the town's. brief in such capacity. would be
a welcome. aid,. it would_ be our thought that the said court would not
be simultaneously passing on the aforesaid internaL question of the
propriety of expending town funds thereon, since that question would
not seem to fall within the framework of the purely procedural issues
involved in the petition. Accordingly, as a proposition to be considered
in advance of any such petition by the town, it is still our opinion
that• the expenditure of town funds for this. proposed. purpose would be
improper for the.reasons already given..
We trust that the above will beof assistance to you.
Very truly_ yours,
s/ Arthur Levitt
State Comptroller
By: Paul A. Hughes
Associate Counsel
52z
Mr. Diehl: In myr reading of. the. .letter fromaudit, and control, I
understand that it was, misuse of town funds.
:
Mr. Quinn: 'I would say that a.reading of.Article.8 Section I clearly
shows that the limitation is_ not on financial matters alone.
Mr. Clausen to Mr. Quinn: Basically your.position hasn't changed.
Mr. Quinn: My position is exactly the same as it was last October.
The reason.I sought to reiterate-.what:was said before,, I gather there
is the opinion -that as long as funds are not involved the Town could
participate. This is not so.
The following letter was read:
March 30, 1967
State of New York
Department of Audit and Control
Capital Building
Albany, New York
Attention: Theodore Spatz, Counsel
Re: Town. of Wappinger.: Amicus Curae
Dear Mr. Spatz:.
Even though a reply to your letter of March 23, 1967 might be academic
because of the time limitations for appearing before the Appellate
Division, Second Department, I cannot help but reply thereto.
I assume that you have already read the enclosed newspaper accounts :of
the request of the Town to appear as amicus curae.
I assume likewise that you have been alerted to the fact that the Town
Boards of Wappinger and Poughkeepsie,. respectively, and the Village
Board of the Village of Wappingers Falls, adopted resolutions opposing
the proposed extension of the airport runway. These municipalities
speak for 50,000 people, which is substantially greater than the 26
supervisors whose municipalities do_not lie in the. glide path of the
proposed extension.
Further, I am perfectly aware that no town ordinance or local law is
in issue. But,,apparently, youassume that.the;•sole reason for bringing
the instand proceeding is under Section 51 of the General Municipal Law.
The operation of the airport by the County of Dutchess is a proprietary
function, as opposed to a governmental function. This principal is
clearly enunciated in 2 NY Jur. 486, where it is stated that, "The
operation..of an airport by a municipality is a proprietary rather than
a governmental function ... An Airport is defined as a revenue-producing
undertaking." 1. t,
Ricotta v. City of Buffalo, 3 Misc. 24 625, 149 N.Y.S. 2d 829
Further, in 39 NY Jur. at page 293, the distinction between a govern-
mental function and a proprietary function of a municipality is set
forth as follows;
"Cities have a iwar#old character, one governmental, and the.
c other proprietary or private. In the former, they perform
the functions and possess the attributes of sovereignty,:
delegated by the legislature. In the latter, they have the
power, prerogatives, and::capacities. of..a private.corporation,
and are subject to its liabilities. Or, as has been said,
there is a distinction between the acts of a municipality-.
in the performance of a governmental function carrying out
a legislative -mandate and those_acts which may be deemed
municipal or corporate acts; the difference is that in
-the'ifirst instance the municipality: is executing the legisla-
tive mandate related to a public duty generally, while in the
- other it is exercising its private rights as a corporate body.".
It is, therefore,. clear that. the. instant problem is not oneof the,.
Board of Supervisors acting in its legislative or governmental capacity.
It does not operate the airport, but has leased it out to third parties
completely. As such, it is responsible as any private corporation for
its contracts and actions which tend to create nuisances, or: encroach
upon the rights of adjacent property owners, or create hazards which
endanger the safety, lives, health and welfare of, the people in the
vicinity of the property they own.
I believe, therefore, that one would be hard put to find a better case
for the exercise of the police power of the town to protect the interest,
health and welfare, as well as the property of its residents,:
Under such police power, the Town of Wappinger certainly has the right
to appear as amicus curae in any proceeding effecting a large segment
of its residents and area, bearing in mind that the Dutchess County
Airport lies entirely and exclusively with in the' Town ofl.Wappin.ger.
Very truly yours, -
s/ Joseph Worona
Mr. Clausen: Nothing we. can do on the airport extension.. I would
love to see a.:way we can stop the extension,.
Mr. Quinn: It: wouldj:take:.a constitutional amendment.
Mr. Francese: I think this Board has indicated its position.
Rules weresuspended. to permit Mr. Louis Eck to comment on earlier action
of the: Board - that, of a letter to the manager of_ the airport: concerning
hazardous conditions.. Mr. Eck asserted that the airport manager is
using his best discretion when he definitely rules out that runway as
hazardous.:: He: feels the: Town hascontrol with Jackson. Rd.
Mr. Clausen asked if the Town could prevent the county from going over
Jackson Rd? _11
Mr. Francese countered that the county could condemn it and Mr. Fulton
added that Mr. Berger (clerk to the Board of Supervisors) said Jackson
Rd. do.esnt belong to. the- -Town of Wappinger.-
Motion made to resume rules.
Mr. Diehl made a motion that the previous motion that I made, and was
passes by the Board. to act as a friend to the court, remaintherewith
5z.5.
the amendment that financially, from outside interest, it was offered
to pay for the expenses incurred.
Mr. Fulton: The original motion would have to be rescinded and the
new motion modified to the existing conditions.
Mr. Diehl: I wish to make the original motion stand and put the amend-
ment to it amending the motion that all financial expense incurred by
this action be taken care of by the outside interests which are prepared
to finance it, therefore, bearing no expense to the Town.
Mr. Fulton: I think everyone on this Board was sincere in trying to
stop this extension right down the line. I think there was a great deal
of work and concern put into it. I think we went as far as we could go.
The Board made a resolution here and we had a decision on it from audit
and control. I think our attorney has spelled out our position to us
and I just feel "so be it" at this point.
Mr. Clausen: I think Mr. Satz is only waiting for the possibility of
getting paid for his services and he would start drawing up the brief.
He wants to be sure he will get paid for his services.
Mr. Francese: I think he had 2 pre -requisites and one was he be paid
and one was that we are legal to do this. Dept. of audit and control
has said by law we can't use town funds and according to our own
attorneys' opinion it would be violation to the constitutional law
acting as a servant to the public. I feel we have gone as far as we
possibly can at the present time.
Mr. Diehl: I would like to have my motion stand amending previous
motion on the books (amending motion wanting to use offer of outside
funds.) Seconded by Mr. Clausen.
Roll Call Vote:
Mr. Clausen aye
Mr. -Bulger abstain
Mr. Francese nay
Mr. Diehl=---- -aye-
Mt. Fillton nay
Mr. Diehl: I would like the Supervisor to take action in regard to
zoning in this same area. This avenue seems to be open. Possibility
of rezoning this area preventing, waht the taxpayers consider in their
action, the hazard of the extension of the runway.
-526
Mr. Clausen and Mr. Francese have been directed to consult with the
Planning Consultant, Raymond & May Assoc., to establish whether the
zoning regulations can be properly adopted which would limit the
extension of the Dutchess County Airport.
Mr. Diehl brought up something he felt the Board should consider in the
near future - utilities underground.
Mr. Quinn mentioned that this had been brought to the attention of the
Planning Board about 6 months ago and they have it under consideration.
Mr. Francese suggested that the Board request the report from the
Planning Board as to what they've done on it so far. Have they drawn
any conclusions?
Mr. Clausen: Several meetings ago did we ask the attorney to draft
a resolution whereby we could start our first leg of the 10-11 year
road program by financing the first part of it. Present for referendum
in November.
Mr. Quinn: If the Superintendent of Highways will furnish us with
statement of area and cost we would be very happy to prepare the
necessary resolution and propositions for referendum.
Mr. Francese requested the Town Highway Superintendent to contact Mr.
Quinn and give him materials necessary to draw up this resolution.
Mr. Bulger suggested the engineer to the Town give assistance to this
also.
Mr. Clausen: In the Imperial Plaza, New Hackensack Road, there seems to
be a lack of drainage on New Hackensack Road bordering this parking lot.
Mr. Clausen made a motion that we send a letter to the Village informing
them of our concern about the problem that exists in relation to the
shopping plaza parking lot bordering the road. Seconded by Mr. Francese.
Unanimously Carried.
Mr. Quinn: Your minutes of October may supply the information._
Mr. Francese made a motion to adjourn the meeting. Seconded by_ Mr.
Clausen. Unanimously Carried.
Meeting Adjourned at 12:18 P.M.
Elaine H. Snowden,
Town Clerk