| Long Is. Pine Barrens Socy., Inc. v County of Suffolk |
| 2014 NY Slip Op 07633 [122 AD3d 688] |
| November 12, 2014 |
| Appellate Division, Second Department |
[*1]
| Long Island Pine Barrens Society, Inc., et al.,Appellants, v County of Suffolk et al., Respondents. |
Gordon & Juengst, P.C., Shoreham, N.Y. (Jennifer A. Juengst of counsel), forappellants Long Island Pine Barrens Society, Inc., and Richard Amper, and ReginaSeltzer, Bellport, N.Y., for appellants Long Island Environmental Voters Forum, Inc.,Thomas Casey, and Robert McGrath (one brief filed).
Dennis M. Brown, County Attorney, Hauppauge, N.Y. (Leonard G.Kapsalis of counsel), for respondents.
In an action, inter alia, for a judgment declaring that Resolution 625-2011 of theCounty Legislature of the County of Suffolk, enacted as Local Law No. 44-2011 of theCounty of Suffolk, is illegal, null, and void on the ground that it was adopted in theabsence of approval pursuant to a public referendum in accordance with the SuffolkCounty Charter, the plaintiffs appeal from an order of the Supreme Court, SuffolkCounty (Farneti, J.), dated July 19, 2012, which denied their motion for summaryjudgment declaring that Resolution 625-2011 of the County Legislature of the County ofSuffolk, enacted as Local Law No. 44-2011 of the County of Suffolk, is illegal, null, andvoid, and granted that branch of the defendants' cross motion which was for summaryjudgment dismissing the complaint on the ground that the plaintiffs lacked standing.
Ordered that the order is reversed, on the law, with costs, that branch of thedefendants' cross motion which was for summary judgment dismissing the complaint onthe ground that the plaintiffs lacked standing is denied, the plaintiffs' motion forsummary judgment declaring that Resolution 625-2011 of the County Legislature of theCounty of Suffolk, enacted as Local Law No. 44-2011 of the County of Suffolk, isillegal, null, and void is granted, and the matter is remitted to the Supreme Court, SuffolkCounty, for the entry of a judgment, inter alia, declaring that Resolution 625-2011 of theCounty Legislature of the County of Suffolk, enacted as Local Law No. 44-2011 of theCounty of Suffolk, is illegal, null, and void.
In 1987, Suffolk County amended the Suffolk County Charter to add the currentarticle XII, known popularly as the Suffolk County Drinking Water Protection Program(hereinafter the DWPP). The overall goal of the DWPP is to protect the County'sdrinking water supply and land in the Long Island Pine Barrens region of the County,which contains a significant drinking water aquifer. The various provisions of the DWPPare designed to permanently protect Pine Barrens acreage in the deep water recharge areaof the County, to support water quality protection programs, and to provide for a rationalprogram of county tax stabilization (see Local Law No. 40-1987 of County ofSuffolk). Suffolk County enacted the DWPP by an affirmative public referendum (seeLocal Law No. 40-1987 of County of Suffolk §§ 3,6).
[*2] The DWPP, codified as article XII of theSuffolk County Charter, was subsequently amended, and its term extended, on severaloccasions. Each amendment until 2011 was approved by an affirmative publicreferendum. Significantly, a 1993 amendment to the Suffolk County Charter included aprovision in the DWPP requiring that, from 1993 forward, the DWPP was only to beamended or repealed after approval by a public referendum (see Local Law No.26-1993 of County of Suffolk). Specifically, the 1993 amendment provided that "[a]fterapproval by the electorate, this law, as well as any other law converted into a mandatoryreferendum pursuant to § 34 (4) of the New York Municipal Home RuleLaw, by a vote of the County Legislature, may only be amended, modified, repealed, oraltered by enactment of an appropriate Charter law subject to mandatory referendum inaccordance with prevailing law" (Local Law No. 26-1993 of the County of Suffolk).This same provision appeared in each of the subsequent amendments to the DWPP(see Local Law No. 35-1999 of County of Suffolk; Local Law No. 24-2007 ofCounty of Suffolk), until a 2011 amendment to the DWPP omitted the clause (seeResolution 625-2011 of the County Legislature of the County of Suffolk, enacted asLocal Law No. 44-2011 of County of Suffolk).
The 2011 amendment (hereinafter the Amendment), which is challenged by theplaintiffs here, was adopted by the County Legislature, and signed by the CountyExecutive, but was never submitted to the electorate for a referendum. Significantly, theAmendment authorized certain funds that had previously been dedicated for purposes setforth in the DWPP to be used instead to retire bonded indebtedness or for a retirementcontribution reserve fund unrelated to the protection of the Pine Barrens or the drinkingwater supply in the County. Thus, the Amendment redirected dedicated DWPP funds togeneral budgetary purposes.
The plaintiffs commenced this action against the County, the County Legislature, andthe County Executive seeking, inter alia, a judgment declaring that theAmendment—including any allocation of funds arising out of the application ofthe formula set forth therein—is illegal, null, and void. They alleged that theCounty violated the Suffolk County Charter by enacting the Amendment withoutapproval pursuant to a public referendum.
After the defendants filed their answer, the plaintiffs moved for summary judgment,arguing that the Suffolk County Charter expressly prohibits the County Legislature andthe County Executive from amending the DWPP without a public referendum and, thus,that the Amendment is illegal, null, and void. The defendants opposed the plaintiffs'motion, and cross-moved for summary judgment dismissing the complaint or, in thealternative, declaring that the amendment constituted a valid exercise of local legislativeauthority. They argued that the plaintiffs lacked standing to maintain the action, and that,in any event, the Supreme Court was obligated to deny the plaintiffs' summary judgmentmotion on the ground that the plaintiffs failed to attach copies of the pleadings to themotion. As to the merits, the defendants argued that the provision in the Suffolk CountyCharter requiring a public referendum to amend the DWPP is inconsistent with State lawand, thus, the County Legislature had the authority to enact the challenged amendmentwithout submitting it to a public referendum.
The Supreme Court denied the plaintiffs' motion for summary judgment on theground that they failed to submit copies of the pleadings with their moving papers, andgranted that branch of the defendants' cross motion which was for summary judgmentdismissing the complaint for lack of standing. The plaintiffs appeal.
The Supreme Court erred in granting that branch of the defendants' cross motionwhich was for summary judgment dismissing the complaint on the ground that theplaintiffs lacked standing. An action commenced by natural persons pursuant to GeneralMunicipal Law § 51 "may take the form of [an] action for a declaratoryjudgment" (Matter of Korn v Gulotta, 72 NY2d 363, 371 [1988]; see Godfrey v Spano, 57 AD3d941, 942 [2008], affd 13 NY3d 358 [2009]). To have standing based upontheir status as taxpayers, the individual plaintiffs were required to allege that thechallenged act constituted a waste of or injury to public funds or, alternatively, that thechallenged act was both illegal and "imperil[ed] the public interests or [was] calculatedto work public injury or produce some public mischief" (Matter of Korn vGulotta, 72 NY2d at 372; see Godfrey v Spano, 57 AD3d at 942). Here, theplaintiffs alleged, in detail, that the defendants violated the Suffolk County [*3]Charter by enacting the Amendment in the absence ofapproval pursuant to a public referendum, and that this enactment threatened publicfunds expressly dedicated to protecting the drinking water supply in the County andlands in the Pine Barrens. Under the circumstances presented here, we conclude that theplaintiffs adequately alleged that the enactment of the challenged amendment without apublic referendum is illegal insofar as it violates the Suffolk County Charter, and that thisenactment imperiled the public interest or was calculated to work public injury orproduce some public mischief (see Matter of Korn v Gulotta, 72 NY2d at 372;cf. Mesivta of Forest Hills Inst. v City of New York, 58 NY2d 1014, 1016[1983]; Godfrey v Spano, 57 AD3d at 942-943; Matter of Bernstein v Feiner,13 AD3d 519, 521 [2004]). Thus, the individual plaintiffs had standing to maintainthis action as taxpayers of the County (see Matter of Korn v Gulotta, 72 NY2d at372). Further, the defendants failed to demonstrate that the organizational plaintiffslacked standing in their representative capacities to maintain this action on behalf of theirrespective members (see NewYork State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211 [2004];Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 775 [1991]; cf. Matter of Long Is. Pine BarrensSocy., Inc. v Central Pine Barrens Joint Planning & Policy Commn., 113 AD3d853, 856 [2014]).
Although the Supreme Court denied the plaintiffs' motion for summary judgment onthe ground that they failed to submit a copy of the pleadings with their motion papers, wenonetheless exercise our discretion to reach the merits. Notwithstanding that CPLR 3212(b) requires that motions for summary judgment be supported by a copy of the pleadings,CPLR 2001 permits a court, at any stage of an action, to "disregard a party's mistake,omission, defect, or irregularity if a substantial right of a party is not prejudiced" (Avalon Gardens Rehabilitation& Health Care Ctr., LLC v Morsello, 97 AD3d 611, 612 [2012];see CPLR 2001; U.S.Bank N.A. v Eaddy, 109 AD3d 908, 910 [2013]). Although the plaintiffs failedto include a copy of the pleadings with their motion for summary judgment, thedefendants submitted a copy of the pleadings in connection with their opposition andcross motion for summary judgment. Under the particular circumstances presented here,we find that the record is sufficiently complete, and there is no proof that a substantialright of the defendants was impaired by the plaintiffs' failure to submit copies of thepleadings (see U.S. Bank N.A. v Eaddy, 109 AD3d at 910; Avalon GardensRehabilitation & Health Care Ctr., LLC v Morsello, 97 AD3d at 612; Welch v Hauck, 18 AD3d1096, 1098 [2005]; cf.Washington Realty Owners, LLC v 260 Wash. St., LLC, 105 AD3d 675, 675[2013]). Accordingly, we will address the merits of the parties' contentions.
There is no dispute that the provision of the Suffolk County Charter that requiresapproval by a public referendum in order to amend or repeal the DWPP curtails thepower of an elective officer, since it binds future County legislatures, and prohibitsfuture County legislatures from amending or repealing the DWPP solely by means of alocal law or ordinance. That provision was, in fact, only adopted after approval by thepublic pursuant to a public referendum. Contrary to the defendants' contention, however,this Charter provision is not inconsistent with article IX of the New York Constitution,which provides, in pertinent part, that in a charter county like the County of Suffolk, anylocal law that curtails the power of an elective officer shall be subject to a "permissive"referendum (NY Const, art IX, § 1 [h] [2]; see Morin v Foster, 45NY2d 287, 291 [1978]). Nor is the relevant provision of the Suffolk County Charterinconsistent with Municipal Home Rule Law § 34 (4), which sets forth ascheme for "permissive" referenda that applies to certain types of local laws, includingthose that curtail the power of an elective officer. These provisions of the New YorkConstitution and the Municipal Home Rule Law do not prevent Suffolk County fromadopting a charter provision like the one at issue here, which requires approval by apublic referendum in order to amend or repeal the DWPP in the future (seeMunicipal Home Rule Law §§ 11 [2] [a]; 34 [4]; Matter of Carusov City of New York, 136 Misc 2d 892, 896 [1987], affd 143 AD2d 601[1988], affd 74 NY2d 854 [1989]; cf. Morin v Foster, 45 NY2d at 291 n,294). Although the relevant charter provision requires a public referendum that isdenominated as a "mandatory" referendum, that public referendum is not mandated byState law (cf. Municipal Home Rule Law § 23). Rather, the relevantcharter provision constitutes the County's mode of granting permission to the electorateto approve or disapprove, by means of a public referendum, proposed changes to theDWPP. Hence, the public referendum countenanced by the Suffolk County Charter canproperly be characterized as a "permissive" referendum within the meaning of the NewYork Constitution and the Municipal Home Rule Law (cf. Morin v Foster, 45NY2d at 294).
[*4] The plaintiffs establishedtheir prima facie entitlement to judgment as a matter of law, and the defendants failed toraise a triable issue of fact in opposition to that showing. Accordingly, the SupremeCourt should have granted the plaintiffs' motion for summary judgment declaring thatResolution 625-2011 of the County Legislature of the County of Suffolk, enacted asLocal Law No. 44-2011 of the County of Suffolk, is illegal, null, and void on the groundthat it was adopted in the absence of approval pursuant to a public referendum inaccordance with the Suffolk County Charter.
Since this is a declaratory judgment action, the matter must be remitted to theSupreme Court, Suffolk County, for the entry of a judgment declaring, inter alia, thatResolution 625-2011 of the County Legislature of the County of Suffolk, enacted asLocal Law No. 44-2011 of the County of Suffolk, is illegal, null, and void on the groundthat it was adopted in the absence of approval pursuant to a public referendum inaccordance with the Suffolk County Charter (see Lanza v Wagner, 11 NY2d 317,334 [1962]). Skelos, J.P., Austin, Sgroi and LaSalle, JJ., concur.