YORKTOWN, N.Y. - Former Yorktown Supervisor Susan Siegel has filed an Article 78 lawsuit against the Yorktown Town Board, requesting that the Westchester County Supreme Court invalidate the town’s recently enacted tree law.
A proceeding under Article 78 of the New York Civil Practice Laws and Rules allows for anyone to challenge or ask for judicial review of determinations made by administrative agencies, public bodies or officers.
According to Siegel’s 39-page lawsuit, the town board “committed multiple violations of four laws and acted in an arbitrary and capricious manner” when it closed the public hearing Sept. 20, added three amendments and voted immediately after the hearing to adopt it—in that order.
“By adding the amendments after the hearing was closed, the board denied the public its due process right to comment on the amendments,” Siegel said. “I accept the fact that the four Republicans can pass whatever laws they want, but they need to pass them properly and legally.”
The proper procedure, Siegel said, would have been for the board to prepare a revised version of the law featuring the three amendments and advertise a new public hearing for that version.
Town Attorney Michael McDermott said the town will not comment on pending litigation.
“The town is vigorously preparing its opposition to this matter,” McDermott said.
Town Supervisor Michael Grace, however, addressed some of the allegations. While Siegel argues that the amendments were substantial, Grace minimizes their impact.
He said the changes, which amount to a 21-word addition to the final draft, did not add more restrictions to the law. Therefore, he argues the town board was not required to advertise a version that featured them.
“All those things did was make the law less restrictive and therefore those changes are valid without a further notice,” said Grace, who is a lawyer. “A law is usually restricting a liberty or a right. You have to put people on notice about what behavior you’re restricting or regulating. If the final version is less restrictive or less regulatory in its reach then that doesn’t have to be re-advertised.”
In the proceeding, Siegel presents her case for why she disagrees by comparing side-by-side the three versions of the law known to have been reviewed and discussed prior to the adoption of the fourth and final draft. One of these versions, she said, was dated almost a week after the one that appeared online for public review prior to the hearing. She alleges the version was never made available to the public.
While there were what she called “minor tweaks” to drafts of the law, such as the designation of Arbor Day, her filing calls out three “substantial” amendments made to the adopted version after the hearing was closed: the introduction of 18-month time restrictions on two of the activities that require a permit for the removal of 10 or more protected trees, and the addition of the words “as a part of an agricultural activity” to a list of items exempt from the law. Neither of these provisions were in the “undisclosed draft” dated Aug. 30 nor the advertised Aug. 17 draft, she said.
Siegel argues that the amendments that allow for an 18-month window place a “substantial new restriction on the rights of property owners to use their property as they wished without any interference or regulation by the town or government,” and therefore changed the meaning of the provisions.
By adding “agricultural activity” to the list of activities that don’t require a permit without defining what “agricultural activity” is, Siegel said, the town board acted in an “arbitrary and capricious manner” by not analyzing “whether or how the amendment could lead to adverse environmental impacts.”
“So is it a backyard vegetable garden or is it Wilkens Farm? You don’t know what it is and that’s the whole point of the challenge,” Siegel said.
She added that there are 12 parcels in Yorktown with a combined 648 acres that are designated by the county as agricultural districts. If they are exempt from requiring a tree permit, it creates “potential for significant adverse environmental impacts.”
The lawsuit also challenges the legality of the provision that gives the town board the authority to review planning board tree-permit decisions that are incorporated into planning board site-plan and subdivision approvals.
“The courts have repeatedly held that once the town board empowers a planning board to approve or disapprove site plans and subdivision plans, the town board relinquishes all authority over the review process,” Siegel said.
Siegel said several residents questioned the provision during the public hearing. Grace’s stance on the matter hasn’t changed since September when he said the implication that the town board is taking over approval authority from the planning board was a misinterpretation of the tree law.
To satisfy the requirement of “constitutional due process,” he said, an appeals board must be provided for any sub-board or advisory board’s decision. In the instance of the tree law, he said, the town board opted for the appeals process to be before the town board.
“She could look at the old law,” he said. “It’s the same provision that’s in the old law essentially.”
Siegel acknowledged similar statements in the press release she issued the day she filed the special proceeding.
“Contrary to what Supervisor Grace said, the 2010 tree law did not give the town board the power to review planning board tree-permit decisions,” she said. “The 2010 law adhered to state law that required parties wishing to challenge a planning board tree-permit decision to file an Article 78 lawsuit. Clearly, Supervisor Grace misspoke.”
The lawsuit cites what it calls violations of Municipal Home Rule Law, New York State Town Law, the Public Officers Law and the State Environmental Quality Review Act (SEQRA) and totals eight charges. This is the second time this year Siegel has challenged a town board decision in court. In January, she accused the board of creating staff positions in closed session. The judge made no ruling in the case, but warned the town against doing what Siegel alleged.