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LEGAL ACTION COMMENCED TO REMOVE PROPERTY OWNERSHIP AS A REQUIREMENT FOR SERVICE TO PARKING DISTRICT
Release Date: January 08, 2010

Last year the Greenburgh Town Board appointed Barry Kessler as a member of the Hartsdale Parking District. Mr. Kessler, a former School Board member and long time resident of Greenburgh, was advised by the other 2 members of the Parking district that they would not recognize his appointment—because he did not own property at the time the assessment rolls were finalized (the property was in his wifes name). Mr. Kessler has since obtained a deed and is a property owner. However, the parking district still refuses to seat him. NYS law provides that members of the Town Board have the power to appoint members of the parking district.
Because the parking district will not seat Mr. Kessler – we filed a legal action in NYS Supreme Court today.  We are seeking For a Declaratory Judgment Pursuant to Article 30                        :
And a Writ of Mandamus Pursuant to Article 78                                  
of the Civil Practice Law and Rules. The following are excerpts from the legal papers we filed today.   Property ownership should never be a requirement to participate in government. Spouses of property owners…tenants are deprived of the chance to serve. It should be noted that when I was first elected Town Supervisor I was a tenant. I could serve as Town Supervisor but not as a member of the parking district. This is absurd!  At least one former Town Board member was also a tenant at the time of his service to the town.    
PAUL FEINER
Greenburgh Town Supervisor                                              
 
Petitioner contend that the provisions of Section 2 of Chapter 402 of the Special Act establishing the Public Parking District, requiring that a member of the Board of Commissioners of the District own real property within the District, are void, improper and unconstitutional, as they impermissibly discriminate against non-real property owners in favor of real property owners within the Parking District in violation of Article 1, Section 11 of the New York State Constitution, as such property ownership classifications are not rationally related to the achievement of any legitimate state interest.
.  In fact, in 1968 the New York State Legislature, by Chapter 767 of the Laws of 1968, subsequently repealed property ownership classifications required to hold office as commissioner in town special improvement districts by amending Section 211 of Town Law (District Commissioners) to eliminate real property ownership of as a qualification for appointment as a district commissioner (See Exhibit F attached; See also Szapiro v. McNichol,
43 A.D.2d 701  (2d Dept. 1973) (Every person who is qualified to vote for a town officer shall be eligible to hold office of district commissioner in improvement district ). [1]
While Petitioner acknowledges that the provisions of Section 2 of Chapter 402 do not overtly discriminate against non-real property owners on the basis of a suspect class (i.e., race or gender) to be upheld against an equal protection challenge pursuant to Article 1, Section 11, there must be some reasonably conceived state of facts and legitimate governmental purpose that provide a rational basis for the legislation’s disparate treatment of real property owners and non-real property owners.
. In this regard, the Public Parking District is solely user supported and generates                                                                                                                                                                                                                                                                                                                                                                                                                                                 income only from permit sales and parking meter revenues related to the use of Parking District facilities. Significantly, the Parking District does not derive any tax revenue from real property situate within the District such that the decisions of District Commissioners would disproportionately impact owners of real property justifying legislation favoring property owners over non-property owners.
. Stated differently, the costs of operation of the Public Parking District are assessed only against the users of the Parking District facilities, irrespective of property ownership, and owners of real property within the District are not subject to assessments or charges or solely responsible for liens or delinquencies of the District.
. Thus, there is no rational basis or legitimate governmental purpose justifying the Chapter 402’s property classification and disparate treatment of real property owners and non-real property owners, such that real property owners residing within the Public Parking District qualify for appointment as District Commissioner while resident non-real property owners do not.
 Moreover, pursuant to Sections 23 and 23-a of Town Law (Eligibility of Town Officers), even members of the Town Board, the Town’s municipal governing body, are not required to be owners of real property to qualify as electors of the Town, as those property classifications have also been repealed. [2]
Indeed, in Landes v. Town of North Hempstead, 20 N.Y.2d 417 (1967), New York’s highest court ruled that the ownership of land as a prerequisite to holding elective town office was an “invidious discrimination” against non-landowners and constituted a denial of equal protection from the viewpoint of the non-landowner seeking town office and a “dilution” or “debasement” of the franchise from the viewpoint of the voter. [3]
            . Similarly, numerous New York State Attorney General opinions have deemed property classifications unconstitutional. See 1998 N.Y. Op. Atty. Gen. (Inf.) No. 98-2 (qualification to vote to dissolve village unconstitutional); See also 1974 N.Y. Op. Atty. Gen. (Inf.) No. 124 (qualification to vote on fire district proposition unconstitutional); See also 1973 N.Y. Op. Atty. Gen. (Inf.) No. 182 (qualification to hold town office unconstitutional) See also 1968 N.Y. Op. Atty. Gen. (Inf.) No. 124 (qualification to hold elected village, fire and special district office unconstitutional); Cf. 1991 N.Y. Op. Atty. Gen. (Inf.) No. 1063 (qualification to vote to establish improvement district not unconstitutional).
            .  In sum, Respondents are denying equal protection of law to resident non-owners of the Public Parking District by purporting to adhere to provisions in the Parking District enabling legislation which have been deemed constitutionally infirm and contrary to the Equal Protection Clause of Article 1, Section 11 of the New York State Constitution.
For purposes of equal protection review, absent a reasonably conceived and articulated state of facts that could provide a basis for the legislation’s disparity of treatment, the challenged classification may not be upheld against an equal protection challenge. See 41 Kew Gardens Rd. Assoc. v. Tyburski, 70 N.Y.2d 325 (1987).
. Petitioner therefore respectfully request that this Court declare, pursuant to CPLR
§ 3001, that the provisions of Section 2 of Chapter 402 of the Laws of 1950 requiring that Commissioners of the Hartsdale Public Parking District own real property within the District as unconstitutional and (2) compel the Hartsdale Public Parking District to immediately recognize the appointment of Barry Kessler as a Commissioner of the Board of Commissioners of the Hartsdale Public Parking District, effective January 1, 2010, pursuant to CPLR 7804.
There are no questions of fact requiring a determination by this Court.
. Petitioner has no other adequate remedy at law and has standing as an elector and resident of the Town.
No previous application has been made for the relief requested herein.
 
WHEREFORE, Petitioner demands judgment against Respondents (a) declaring that the provisions of Section 2 of Chapter 402 of the Special Act establishing the Public Parking District, as they relate to requirements that a member of the Board of Commissioners of the District own real property within the District, have been repealed, and/or are void, improper and unconstitutional as they impermissibly discriminate against non-real property owners in favor of real property owners within the Parking District in violation of Article 1, Section 11 of the New York State Constitution; and (b) compelling the Hartsdale Public Parking District to recognize the appointment of Barry Kessler as a Commissioner appointed to the Board of Commissioners of the Hartsdale Public Parking District as of January 1, 2010, together with the costs and disbursements of this proceeding and for such other and further relief as the Court may deem appropriate.
 


[1] Chapter 767 of the Laws of 1968 of the State of New York passed at the 191st session of the New York State Legislature.
[2]  See Chapter 767 of the Laws of 1968 of the State of New York passed at the 191st session of the New York State Legislature.  It is no longer required that a person own real property in order to be qualified to hold town office. See also §23 and §23 of Article 3 of Town Law.
[3] (Sections of Town Law requiring that every elective officer of town be owner of record of real property in town and providing for forfeiture of office if office holder fails or refuses to establish his record ownership of real property after 15 days' written notice and demand were deemed unconstitutional under equal protection and due process clauses of both federal and state Constitutions.)



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