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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