Greenberg v. Veteran Notice of Motion for Supplement Record
Public Court Documents
June 8, 1989

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Brief Collection, LDF Court Filings. Greenberg v. Veteran Notice of Motion for Supplement Record, 1989. a8f76558-b49a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/a606e70e-4a04-49d5-822f-6378d04f738c/greenberg-v-veteran-notice-of-motion-for-supplement-record. Accessed April 29, 2025.
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T 108C 10/82 United States Court of Appeals FOR THE SECOND CIRCUIT « 1 P A G E I Second C ircu it Rule 2 "(a i governing use o f this form is reprim ed on reverse of Page 2 Note requiremen! that supporting a ffidav its he attached In re Greenberg and Mulligan, Plaintiffs-Appellees, v. Veteran and Tolchin, Defendant-Appellants Use short title _________89-7476________ D t x i e i \ um ber NOTICE OF MOTION slate type o f motion for Supplement record MOTION BY: (Name and tel. no. o f taw firm and o f attorney in charge o f case) Paul Agresta, Town Attorney Town of Greenburgh P.O. Box 205 Elmsford, New York 10523 914-993-1546Has consent of opposing counsel: A. been sought? X Yes □ No B. been obtained? X Yes Z j No Has service been effected? X Yes ' ; No Is oral argument desired? L_2 Yes X No (Substantive motions only) Requested return date: June 6 , 19 8 9 (See Second Circuit Rule 27(b)) Has argument date of appeal been set: A. by scheduling order? X Yes Z No B. by firm date of argument notice? □ Yes X No C. If Yes, enter date: W e e k O f A u g .__ 1 4 ____________ Judge or agency whose order is being appealed. 7 OPPOSING COUNSEL: (Name and tel. no. o f law firm and o f attorney in charge o f case) Jonathan Lovett Lovett & Gould 180 East Post Road White Plains, New York 10601 914-428-8401 EMERGENCY MOTIONS, M OTIONS FOR STAYS & INJUNCTIONS PENDING APPEAL Has request for relief been made below? Z Yes X No (See F .R .A .P Rule 8) Would expedited appeal eliminate need for this motion? If No, explain why not: Appellant this uncontested motion promptly because filingapproaching. Wilrthe parties agree to maintain the status quo until the motion is heard? Inapplicable. □ Yes X No seeks to hawdecideddate is □ Yes No Judge Goettel (S.D.N.Y.)______________________________________________________ Brief statement of the relief requested: Appellants seek to supplement record to add complaint in related case relied on by court below. Opposing counsel consents to relief sought. Complete Page 2 of This Form By: (Signature o f attorney) Signed name must be printed beneath Paul Agresta______ Kindly leave this space blank Appellant or Petitioner: Z Plaintiff XX Defendant Appellee or Respondent: _ Plaintiff Z Defendant Date June , 1989 ----- ORDER ---- Appearing for: (Name o f party) Anthony Veteran, Susan Tolchin IT IS HEREBY ORDERED that the motion be and it hereby is granted denied Date C ircu ii Judge PAG! 2 Previous requesis for similar relict and disposit ion: Appellants sought the Same relief in a motion dated May 17, 1989, filed with this Court. The Clerk s office rejected that motion by letter dated May 24, 1989 because it was included with a motion to consolidate this appeal with a forthcoming mandamus petition. Statement of the issuc(s) presented b> this motion: Should record on appeal be supplemented to include complaint in a related case relied on by the court below. Brief statement of the facts {with page references to the moving papers): Def endantS-Appe 1 lantS removed this case from state court under provisions conferring jurisdiction in certain civil rights actions and in federal question cases. The court below held that civil rights jurisdiction was lacking, and that it^should abstain from exercising federal question jurisdiction. Having decided to abstain, the court remanded. (Agresta Affidavit 1111 8-10) Summarv of the argument (with page references to the moving papers):This case was one of two related cases below. The court below relied on the complaint in the related case for background facts and referred to it in its decision. (Agresta Affidavit 1111 7, 12) Thus, that complaint should be readily available to this Court on this appeal. Opposing counsel has consented to the relief sought. Because there is no opposition, and because joint appendix and Appellants brief are due June 19, 1989, Appellants apply for a June 6, 1989 return date. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ______________________________________________ _ In the Matter of the Application of MYLES GREENBERG and FRANCES M. : MULLIGAN, Plaintiffs-Appellees, Docket No. 89-7476 AFFIDAVIT -against- ANTHONY F. VETERAN and SUSAN TOLCHIN, Defendants-Appellants. __________________________________________ _ STATE OF NEW YORK )) ss. : COUNTY OF WESTCHESTER ) PAUL AGRESTA, being sworn, states: 1. I am Town Attorney for the Town of Greenburgh, counsel for Defendants-Appellants Anthony F. Veteran (the "Town Supervisor") and Susan Tolchin. ^ I submit this affidavit in support of the Town Supervisor's motion to supplement the record on this appeal to include the complaint in a related action, Jones v. Deutsch, 88 Civ. 7738 (GLG) (S.D.N.Y.), which was also before the Court below, and which the Court below considered in connection with the order Susan Tolchin, the Town Clerk, is a nominal party, whose interests are aligned with those of the Town Supervisor. For simplicity's sake, I will refer only to the Town Supervisor. 2 appealed from. Opposing counsel has consented to the relief sought. For this reason — and because the dates for filing the record (June 12) and the joint appendix and Appellants' brief (June 19) are rapidly approaching — I respectfully ask that the Court hear this motion on a shorter time schedule than would ordinarily be followed. 2. This appeal arises from an order of the United States District Court for the Southern District of New York, which remanded a removed proceeding to the New York State Supreme Court. (Annexed Exhibit 1) Part of the order below held that there was no basis for removal, and it is appeal- able as of right under a statutory provision applicable only to the remand of civil rights actions. See 28 U.S.C. §§ 1443 and 1447(d). Summary of the Case 3. The District Court aptly captured the essence of the controversy underlying the litigation: This case, at its core, is unmistakably a product of the "NIMBY Syndrome" — i.e., that syndrome_ triggered by proposals to locate prisons, public^ housing, waste facilities, and other such community additions usually perceived by the targeted commu nity as undesirable, the abiding characteristic of which is to ensure that the proposed facility be placed somewhere if it must but "Not In My Back Yard." The public project at issue here is the proposed construction of emergency housing for the homeless. (Exhibit 1, pp. 2-3; emphasis in origi nal) 3 4. Announced in early 1988, the proposed shelter is part of a County of Westchester/Town of Greenburgh effort to house homeless families with children — overwhelmingly members of racial minorities. Community resistance developed immediately; it includes an effort to assume control of the development site by incorporating a new village, pursuant to the New York Village Law. As a leading proponent of the new village has said; "We'll go ahead with secession and take a nice piece of taxable property with us." (Annexed Exhibit 2, 1 23) 5. Before the secession could proceed, however, state law required the Town Supervisor to consider the petition to incorporate. After studying the proposed village map and holding a hearing, the Town Supervisor concluded that "[i]n the entire 30 years during which I have held elective office I have never seen such a blatant and calculated attempt to discriminate" on grounds of race. (Annexed Exhibit 3, p. 2) Thus, finding a racially discriminatory impact, as well as several other state law deficiencies in the petition to incorporate, the Town Supervisor rejected the attempt to secede. 6. Appellees thereupon filed this proceeding in the Westchester County Supreme Court, pursuant to Article 78 of the New York Civil Practice Law and Rules. The Article 78 petitioners seek to overturn the Town Supervisor's decision, 4 alleging, among other claims, that the New York Village Law does not authorize rejecting an incorporation effort on grounds of invidious discrimination. Proceedings in the District Court 7. On November 1, 1988, an alliance of community blacks, homeless persons with families, the White Plains/Greenburgh branch of the National Association for the Advancement of Colored People, Inc. and the National Coali tion for the Homeless filed suit in the Southern District of New York against proponents of the secession, and the Town Supervisor. That action, Jones v. Deutsch, 88 Civ. 7738 (GLG) (Exhibit 2), alleges civil rights conspiracy claims arising under 42 U.S.C. § 1985(3). It also seeks a declara tory judgment affirming the Town Supervisor's right and obligation to reject the incorporation petition. Upon its filing, the case was assigned to Judge Goettel. The Filina and Removal of this Case 8. A few weeks after Jones was filed, the Town Supervisor rendered his decision. (Exhibit 3) This state court Article 78 proceeding followed, and the Town Supervisor filed a petition removing it to the Southern District of New 5 York. Upon removal, the Article 78 proceeding was assigned 2 /to Judge Goettel as a case related to Jones.— ' 9. As authority for removal, the Town Supervisor relied in part on the "refusal clause" of 28 U.S.C. § 1443(2), a provision applicable to civil rights actions. In pertinent part, the statute provides that: Any of the following civil actions . . . may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending: * * * (2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law. The Town Supervisor also invoked federal question removal jurisdiction under 28 U.S.C. § 1441(b), based on an Article 78 proceeding claim that he had violated the secessionists' First Amendment rights. Section 1441(b), in relevant part, provides that: Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of 2/ Besides the Town Clerk of Greenburgh, hundreds of opponents of secession are also named respondents in the Article 78 proceeding. Some of these respondents (including the plaintiffs in Jones) joined the removal petition below. Although not formal parties on these appellate proceedings, these additional removing parties are aligned in interest with the Town Supervisor. 6 the United States shall be removable without regard to the citizenship or residence of the parties. The Remand Decision Below 10. The Article 78 petitioners did not seek to remand. However, the District Court sua sponte directed the parties to address whether removal was appropriate and whether the Court should abstain under the doctrine of Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941). After oral presentations and written submissions, the Court below issued its decision. (Exhibit 1) Remanding the case, in summary, the Court below: (a) rejected removal under the refusal clause of § 1443(2); and (b) as to federal 3/question removal, invoked the Burford abstention doctrine. 11. The Town Supervisor has filed a notice of appeal from that part of the District Court's order rejecting removal under the refusal clause of § 1443(2). That appeal is authorized by 28 U.S.C. § 1447(d), which provides that a remand order in a case which "was removed pursuant to section 1443 of this title shall be reviewable by appeal or other wise." The Town Supervisor also intends to file ^ petition for a writ of mandamus to review that part of the order below 3/ See Burford v. Sun Oil Co., 319 U.S. 315 (1943) . 7 abstaining on Burford grounds. See Corcoran v. Ardra Ins. Co.. 842 F .2d 31 (2d Cir. 1988). The Relief Sought On This Motion: Supplementing the Record to Include the Jones Complaint 12. The relief sought is in the nature of house keeping. We ask leave to supplement the record to the extent of including the complaint in Jones v. Deutsch, 88 Civ. 7738 (GLG) (Exhibit 2). That complaint was before the District Court since the two matters here are related. The Court below referred to Jones in its remand decision (Exhibit 1, pp. 4-5, 6 & fn. 3, 29 & fn. 11), and plainly relied in part on the allegations in that case for background facts that appear in its decision. In these circumstances, that same pleading should be before this Court, conveniently available, on the Town Supervisor's appeal. 13. To reiterate, opposing counsel does not object to our application, and the record must be filed by June 12, 1989. Our appeal papers also are due by June 19, 1989. Accordingly, I respectfully request that our motion be promptly heard by the Court, and granted. Paul Agresta Sworn to before me this ____ day of June 1989. Notary Public Exhibit 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK In the Matter of the Application : of MYLES GREENBERG and FRANCES M. MULLIGAN, : Petitioners, : 89 Civ. 0591 (GLG) -against- : O P I N I O N ANTHONY F. VETERAN, et al., : Respondents. : A P P E A R A N C E S : Counsel for Petitioners: LOVETT & GOULD 180 East Post Road * White Plains, New York 10601 By: Jonathan Lovett, Esq. Of Counsel Counsel for Respondents Anthony F. Veteran and Susan Tolchin: PAUL AGRESTA, ESQ. Town Attorney Town of Greenburgh P.O. Box 205 Elmsford, New York 10523 Counsel for Respondents Keren Developments, Inc. and Robert Martin Company: CUDDY & FEDER 90 Maple Avenue White Plains, New York 10601 By: Ruth E. Roth, Esq. Of Counsel Counsel for Respondent Ruth E. Roth (Pro Se): RUTH E. ROTH, ESQ. 90 Maple Avenue White Plains, New York 10601 Counsel for Respondents Anita Jordan, April Jordan, Latoya Jordan, Anna Ramos, Lizette Ramos, Vanessa Ramos, Gabriel Ramos, Thomas Myers, Lisa Myers, Thomas Myers, Jr., Linda Myers\ Shawn Myers, and National Coalition for the Homeless: -and- Local Counsel for Respondents Yvonne Jones, Odell A. Jones, Melvin Dixon, Geri Bacon, Mary Williams, James Hodges and National Association for the Advancement of Colored People, Inc. White Plains/Greenburgh Branch: PAUL, WEISS, RIFKIND, WHARTON & GARRISON 1285 Avenue of the Americas New York, New York 10019 By: Jay L. Himes, Esq. Cameron Clark, Esq. Melinda S. Levine, Esq. William N. Ger=»on, Esq. Of Counsel * * Counsel for Respondents Yvonne Jones, Odell A. Jones, Melvin Dixon, Geri Bacon, Mary Williams/ James Hodges and National Association for the Advancement of Colored People, Inc. White Plains/Greenburgh Branch: GROVER G. HANKINS, ESQ. NAACP, Inc. 4805 Mount Hope Drive Baltimore, Maryland 21215-3297 By: Robert M. Hayes, Esq. Virginia G. Shubert, Esq. COALITION FOR THE HOMELESS 105 East 22nd Street New York, New York 10010 Julius L. Chambers, Esq. John Charles Boger, Esq. Sherrilyn Ifill, Esq. 99 Hudson Street New York, New York 10013 Andrew M. Cuomo, Esq. 12 East 33rd Street - 6th Floor New York, New York 10016 Of Counsel G O E T T E L , D.J.: Federalism is a concept whose vitality is perceived by some to be rather fluid. There are those, for example, who believe it worthy only of lip service and that, as a general proposition, if a matter may be brought in a court it may be brought in federal court. To that thinking, the retort is quite simple: "federal courts are courts of limited jurisdiction."1 Still others, while cognizant of the notion's existence, perceive its recognition as "seasonal" in nature, going in and out of style with the philosophical predilections of a given administration and the quantity and temperament of its judicial appointments. As to that point of view, we note only that the document serving as federalism's source is entitled to greater deference than the whims * • of current majoritaxian thinking. There are those, however, who share our view that federalism is a neutral constant of federal jurisprudence, the necessary product of our dualist system. The proceeding before us is rife with federalist implications, and it is our recognition of and respect for those concerns which shapes and guides our handling of the matter. New York has provided an avenue for judicial review of state and municipal administrative action under N.Y. Civ. Prac. L. & R. ("NYCPLR") §§ 7801-06 (McKinney 1981 & Supp. 1989), the so-called Article 78 proceeding. Judicial review under these provisions 1 Owen Equip. & Erection Co. v. Kroger. 437 U.S. 365, 374 (1978) . 1 generally is limited to determining whether the official's actions constituted an abuse of discretion, were unsupported by sufficient evidence, or were contrary to existing law. id. at § 7803. Although an Article 78 proceeding cannot be initiated in federal court, Chicaqo,— Rock Island & Pacific R.R. Co. v. Stude. 34 6 U.S. 574, 581 (1954) , it is contended that such a proceeding nonetheless may be removed here so long as a federal question is asserted in the Article 78 petition — apparently no matter how tangential or attenuated or if the respondents allegedly were acting pursuant to federal law protecting equal rights — even if that law parallels similar state law mandating like action. As will become clear, we harbor certain reservations as to this interest in "federalizing'; Article 78 proceedings generally and this proceeding in particular. Fortunately, at least in this case a solution presents itself. Animated chiefly by due respect for the principles of comity and federalism that serve as the essential bedrock for healthy federal-state relations, we find that abstention is proper in this case and, consequently, we remand the matter sua sponte to the court from whence it originated and belongs (in our view) — the New York Supreme Court for the County of Westchester. I. I. BACKGROUND This case, at its core, is unmistakably a product of the NIMBY Syndrome" i.e., that syndrome triggered by proposals to locate prisons, public housing, waste facilities, and other such 2 community additions usually perceived by the targeted community as undesirable, the abiding characteristic of which is to ensure that the proposed facility be placed somewhere if it must but "Not In My BackYard." The public project at issue here is the proposed construction of emergency housing for the homeless. In January of last year, the Town of Greenburgh, in conjunction with the County of Westchester, proposed to build emergency or "transitional" housing to accommodate 108 homeless families on land owned by the County in the Town. The proposed developer is West H.E.L.P., Inc. ("West HELP"), a not-for-profit corporation formed for the express purpose of constructing housing for the homeless of Westchester County. It is generally acknowledged that the vast majority of homeless people who would* « gualify for residence in the West HELP project are minorities, specifically blacks. In response to that announcement, a number of Greenburgh residents living in the area immediately surrounding or adjacent to the proposed site formed the Coalition of United Peoples, Inc. ("COUP"). COUP'S purpose, de facto or otherwise, is to coordinate opposition to the West HELP project and, most importantly, to ensure that the project is not constructed in COUP'S backyard. As part of those efforts, COUP began a drive under N.Y. Village Law §§ 2-200 to 2-258 (McKinney 1973 & Supp. 1989) (the "Village Law") to incorporate an area encompassing the proposed West HELP project as a separate village to be denominated the Village of Mayfair 3 Knollwood.2 On September 14, 1988, pursuant to section 2-202 of the Village Law, COUP presented an incorporation petition to Greenburgh Town Supervisor Tony Veteran, whose responsibility it is in the first instance to determine whether the petition complies with the requirements of the Village Law. In accord with section 2-204 of the Village Law, a public hearing on the matter was conducted on November 1 at which oral testimony was received. Town Supervisor Veteran then adjourned conclusion of the hearing until November 21 for the sole purpose of entertaining written comments on the petition. Also on November 1, and prior to any decision by Town Supervisor Veteran on the merits of the petition, various citizens of the Town of Greenburgh, a nujnber of homeless people living in♦ « Westchester County," the National Association for the Advancement of Colored People, and the National Coalition for the Homeless joined forces as plaintiffs in a federal action in this court against COUP, certain of its members, and Town Supervisor Veteran. Jones v. Deutsch. No. 88 Civ. 7738 (GLG). The complaint alleges, inter alia , a civil rights conspiracy amongst the named defendants pursuant to 42 U.S.C. § 1985, the ostensible purpose of which is to deprive plaintiffs of voting, housing, and emergency-shelter Just how incorporation of the proposed village would obstruct construction of housing for the homeless on what is admittedly County-owned property is not entirely clear to us. Presumably, COUP believes that leaders of the newly formed village would be able to so bog down and delay approval of necessary zoning and other permits that pursuit of the project would become undesirable. 4 rights grounded in federal and state law. Plaintiffs also sought a declaratory judgment directing that Town Supervisor Veteran reject the allegedly discriminatory incorporation petition, contending that such a result would be consistent with the proper execution of his oath of office. The COUP defendants moved to dismiss that action on various grounds (among them ripeness and standing). The motion was adjourned sine die pending determination of the instant matter, which had been removed to this court during the interim. Town Supervisor Veteran, apparently not in need of a federal court order controlling his actions, issued a decision on December 1, 1988 rejecting COUP'S incorporation petition (the "December 1 Decision"). In a carefully worded opinion, six specific grounds* • were enumerated as the bases for the decision: (1) the proposed boundaries are not described with "common certainty," as required by section 2-202 of the Village Law; (2) the proposed boundaries, where ascertainable, evidence an intent to discriminate and are gerrymandered to exclude black residents, rendering the petition violative of "rights granted by the federal and state constitutions"; (3) the petition was prepared for the invidious purpose of "preventing the construction of transitional housing for homeless families," rendering it violative of "rights granted by the federal and state constitutions"; (4) substantial petition signatures were obtained under false pretenses; 5 (5) substantial petition signatures are irregular; and (6) numerous Town residents (particularly newer residents) are not identified as would-be inhabitants of the proposed village, as required by section 2—202 of the Village Law. Under the express provision of section 2-210 of the Village Law, review of a town supervisor's decision on an incorporation petition may be had only through an Article 78 proceeding on grounds that the decision "is illegal, based on insufficient evidence, or contrary to the weight of evidence." Eleven days after Town Supervisor Veteran issued his decision on the COUP petition, two COUP members instituted an Article 78 proceeding in New York Supreme Court challenging that decision. On January 30 of this year, the respondents in that proceeding filed a petition* * « for removal in the Southern District of New York, designating the matter as related to the pending Deutsch action. Urging that the December 1 Decision be reversed and the petition to incorporate the Village of Mayfair Knollwood be sustained, the Article 78 petition sets forth five specific bases allegedly supporting the relief requested: (1) since section 2-206(3) of the Village Law requires that testimony offered at a petition hearing "must be in writing" and that the "burden of proof shall be on objectors," and since only oral testimony was taken at the November 1 hearing, Veteran's 3 3 Principally as a result of that action, an̂ amended complaint was filed in the Deutsch action which, inter alia, drops defendant Veteran as a member of the alleged civil rights conspiracy. 6 actions were contrary to the requirements of the Village Law and thus illegal or, alternatively, his decision was not supported by sufficient evidence? (2) since a town supervisor's authority under section 2-206 of the Village Law to review incorporation petitions allegedly is strictly ministerial (i.e., limited to assessing the validity of only those objections related to petition requirements set forth by the statute), and because the statute does not provide for an examination of or inquiry into the petitioners' intent, Veteran's decision is illegal because it went beyond the scope of his ministerial authority or, alternatively, his perceptions of discriminatory intent are not supported by sufficient evidence; (3) since under section 2-206 of the Village Law the sole* • evidence Veteran purportedly was allowed to consider was that adduced at the November 1 public hearing and reduced to writing, his reliance on material received during the period he allowed for further written comment between November 1 through 21 renders his decision illegal or, alternatively, contrary to the weight of the objecting evidence received at the November 1 hearing; (4) since no objections allegedly were filed with respect to the means by which petition signatures were gathered or as to the sufficiency of the list of regular inhabitants, Veteran's decision is illegal or is unsupported by sufficient evidence; and (5) since the petitioners' opinions, motives, or intentions are matters allegedly protected by the First Amendment of the 7 United States Constitution, Veteran's decision violates those rights.4 Freely expressing our doubt as to the propriety of removal in this case, a conference in chambers was scheduled to discuss, inter alia. (i) whether, as a general proposition, Article 78 proceedings may be removed to federal court, (ii) if so, whether removal in this case is justified under either of the pertinent statutory provisions invoked, to be discussed infra. and (iii) whether, assuming the instant proceeding can be removed, principles of abstention dictate that we stay our hand or dismiss in deference to a state proceeding addressing some or all of the issues raised. Memoranda and letters on these subjects were submitted to the court prior and subsequent to tĥ e. scheduled conference. Generally, all parties are of the belief that the Article 78 proceeding at bar could be and properly was removed, and only counsel for the Article 78 petitioners expressed any concern as to possible abstention implications. In sum, it is readily apparent that the parties are content to be before this court and believe that this court is the proper forum in which to address the Article 78 matter; no motion to remand is contemplated. Notwithstanding this state of affairs, but consistent with the primacy of this court's obligation to protect its jurisdiction, the court has engaged in its own research 4 As discussed infra, we add only that it appears certain of the questions bearing on the legality of the procedures employed and whether Veteran exceeded the scope of his authority under the Village Law are unsettled questions of New York law (indeed, from what we are told by petitioners' counsel, certain of the state questions may be matters of first impression). 8 on the matter. See Railway Co. v. Ramsey. 89 U.S. (22 Wall.) 322, 328 (1874) (noting court's authority to remand sua sponte if jurisdiction is found lacking); Cutler v. Rae, 48 U.S. (7 How.) 729, 731 (1849) (holding consent of parties does not confer federal jurisdiction; it remains "duty of this court to take notice of the want of jurisdiction, without waiting for an objection from either party"). Finding that, even if this proceeding properly was removed, we should abstain pursuant to familiar jurisprudential considerations, we now remand this proceeding sua sponte. See Corcoran v. Ardra Ins. Co.. 842 F.2d 31, 36-37 (2d Cir. 1988) (holding "that when the district court may properly abstain from adjudicating a removed case, it has the power to remand the case to state court"). * II. II. DISCUSSION The right to remove a state case to federal court is, of course, a unique incident to our federalist system with no antecedent at common law. Consequently, removal must be founded upon one of the statutory bases provided by Congress. Gold-Washing and Water Co. v. Keves. 96 U.S. 199, 201 (1877) . The instant petition invokes two such statutory provisions. First, the Article 78 respondents contend that removal is warranted under the infrequently utilized "refusal clause" of the civil rights removal statute, 28 U.S.C. § 1443(2). Second, it is contended that the assertion of the First Amendment challenge to the December 1 Decision presents a federal question and warrants removal under the 9 general federal removal statute, 28 U.S.C. § 1441(b). We consider each of these provisions in turn. a. 28 U.S.C. $ 1443(2 ) Respondents devote the lion's share of their argument to the propriety of removal in this case under the refusal clause of the civil rights removal statute. The refusal clause permits removal in those cases where a person acting "under color of authority" is "refusing to do any act on the ground that it would be inconsistent with [federal law providing for equal rights]." Of the precedent that exists construing this awkwardly worded statute, perhaps the two leading decisions were rendered by two of this circuit's most learned and respected jurists.^. Certainly, the most complete analysis of the statute provided to date in any circuit is then District Judge Newman's opinion in Bridgeport Edu. Ass'n v. Zinner. 415 F. Supp. 715 (D. Conn. 1976), which sets out the criteria to be employed in a refusal clause analysis. Generally adopting what he termed Judge Newman's "exhaustive and scholarly review of the subject," now Chief Judge Brieant, sitting by designation and writing for the two-member majority in White v. Wellington. 627 F.2d 582 (2d Cir. 1980), succinctly summarized the relevant inquiry: the refusal clause "may be invoked when the removing defendants [state or municipal officials] make a colorable claim that they are being sued for not acting 'pursuant to a state law which, though facially neutral, would produce or perpetuate a racially discriminatory result as 10 applied.'" Id. at 586 (quoting Zinner. 415 F. Supp. at 722). The statute is exceptional in that it allows the presence of a federal defense to control the question of jurisdiction. Zinner. 415 F. Supp. at 723 n. 7 (citing Louisville & Nashville R.R. v. Mottlev. 211 U.S. 149 (1908)). Recognizing, we think, that the statute, if left open-ended, could lead to the "federalization" of standard state cases involving challenges to official state or municipal action, an important limitation (consistent with the existing legislative history) has been read into the law's meaning. To state a "colorable claim" under the statute, the removal petition must contain a good faith allegation that there exists a conflict between the state law in issue and a federal law protecting equal* « rights. As Chief Judge Brieant put it, the removal petition must allege "a colorable claim of inconsistent state/federal requirements." Wellington. 627 F.2d at 587. See also Armeno v. Bridgeport Civil Serv. Comm'n. 446 F. Supp. 553, 557 (D. Conn. 1978) (Newman, J.) (noting refusal clause permits removal when official "declined to observe state requirements that he believes are inconsistent with the obligations imposed on him by a federal law protecting equal rights"). The basis of the conflict requirement seems self-evident: without a colorable federal-state conflict, the need to remove to federal court to ensure the proper vindication of superior federal mandates is not manifested. When federal and state interests are compatible, the state court is poised to assure that the defendant's parallel justification for 11 action under state law is given proper consideration. cf. ington, 627 F.2d at 590 (Kaufman, J. , concurring) (state officials will seek "extraordinary" option of removal under the refusal clause and forego the familiar confines of a state forum "because the federal issue they seek to litigate is so substantial"). Indeed, Judge Meskill, dissenting in Wellington, characterized the colorable conflict requirement as the "jurisdictional touchstone" under the refusal clause. Wellington, 627 F.2d at 592. The Wellington majority concurred with that assessment: We agree fully with Judge Meskill's description of the "jurisdictional touchstone" as "a colorable conflict between state and federal law" leading to the removing defendant's refusal .to follow plaintiff's interpretation of st&te law because of a good faith belief that to do so would violate federal law. That good faith belief is tested objectively, in that the claim to that effect of the removing defendant must be "colorable." Id- at 586-87. Where the majority and dissent parted ways was on what would constitute a "colorable conflict." In that case, the defendants had phrased their removal petition in the alternative; i.e., they contended that they had not violated the applicable state statute or, if it were found that they had, then they actedl as they did for to do otherwise would have been inconsistent with the requirements of federal law protecting equal rights. Judge Meskill felt that alternative allegations of this nature did not justify removal under the exceptional provisions of the refusal clause. Id. at 591. The majority, however, found "no reason why 12 a removal petition cannot contain inconsistent allegations in the nature, here, of a traditional plea of confession and avoidance without confession," so long as the petition contains "a colorable claim of inconsistent state/federal requirements." id. at 587. Put differently, the contrary nature of state law need not be a matter definitively resolved, so long as the defendant alternatively can assert in good faith a colorable claim of conflict with federal law. Id^ at 590 (Kaufman, J., concurring). Guided by these holdings, we find that a colorable conflict between federal and state law is neither asserted in the instant petition nor can such a conflict in good faith be found to exist. As outlined supra. Town Supervisor Veteran denied the incorporation petition on six enumerated grounds. Only grounds (2) and (3) implicate federal concerns relating to equal rights; the remaining grounds for denial are largely ministerial in nature, based entirely on the filing requirements of New York's Village Law. Grounds (2) and (3), however, each conclude that even though the Village Law "does not specifically address itself to the 'intent' of the petitioners, I firmly believe that the rights granted by the federal and state constitutions transcend the procedural technicalities set forth in the Village Law." December 1 Decision 5 2, at 4; id. 3, at 6. The referenced constitutional protections are not identified in either the December 1 Decision or the removal petition, but it seems plain that the allusions are 13 to the Fourteenth Amendment's command of equal protection.5 Thus, respondents conclude, the Village Law, though neutral on its face, would produce a discriminatory result if applied in ignorance of federal constitutional proscriptions, and therein rests the Citing only Gomillion v. Liahtfoot. 364 U.S. 339 (1960), respondents' memorandum notes simply that "Supervisor Veteran relied on ̂ federal constitutional protections against race discrimination . . . [and] [t]here can be no genuine doubt that these provisions are laws 'providing for equal civil rights.'" Respondents' Conference Memorandum at 9. See also Town of Greenburgh's Memorandum at 4 (same). Gomillion struck down a gerrymandered plan redefining the boundaries of the City of Tuskegee, Alabama as violative of the Fifteenth Amendment. That amendment provides that the right of citizens to vote shall not be denied on account of race or color. Justice Whittaker, noting that "the Gomillion plaintiffs were not being denied their right to vote "in the Fifteenth Amendment sense" (i.e., they could still vote, albeit not within the newly defined city limits), concurred in the decision but on grounds that the "fencing out" of black citizens "is an unlawful segregation of* races of citizens, in violation of the Equal Protection Clause of the Fourteenth Amendment . . . ." Id̂ . at 349. Although of no moment, we think Justice Whittaker makes a cogent point. More importantly, however, it has been suggested that the Supreme Court has come ultimately to embrace Justice Whittaker's analysis. See Karcher v. Daggett. 462 U.S. 725, 748 (1983) (Stevens, J., concurring) (noting "the Court has subsequently treated Gomillion as though it had been decided on equal protection grounds") (citing Whitcomb v.Chavis. 403 U.S. 124, 149 (1971)). Accord City of Mobile v. Bolden. 446 U.S. 55, 86-87 & n .7 (1980) (Stevens, J., concurring). We will not belabor the reader with citation to a number of Court cases, both majority and concurring opinions, which have cited Gomillion in the Fourteenth Amendment context. Suffice it to say that gerrymandering by race, although a Fifteenth Amendment violation under Gomillion. certainly falls within the reach of the Equal Protection Clause as well. That additional support could be especially pertinent here since those who would be excluded from the allegedly gerrymandered boundaries of the Village of Mayfair Knollwood would not, unlike the plaintiffs in Gomillion. be deprived of their pre-existing right to vote (here, in the Town of Greenburgh) . See especially Caserta v. V illage of Dickinson. 491 F. Supp. 500, 506 n.14 (S.D. '̂’eX- _ 1980) (distinguishing Gomillion since excluded plaintiffs retained their pre-existing right to vote; "[t]hose not within the °f Dickinson boundaries have merely maintained their status quo as members of Galveston County"), aff'd in relevant part. 672 F.2d 431, 432-33 (5th Cir. 1982). 14 colorable conflict. Respondents' Conference Memorandum at 8-9. Whether or not this is so, however, we believe respondents' argument misses a crucial point. Wellington repeatedly references and requires a conflict between federal and "state law," not a state law or statute. The corpus of pertinent "state law" under Wellington, it seems to us, must necessarily include state constitutional law, for it is a fundamental maxim of any constitutional society, as New York is, that constitutional mandates govern and delimit legislative and regulatory enactments of the majority. Thus, at least one New York court has noted that incorporation petitions, even if in compliance with the ministerial requirements of the Village Law, will not be sustained if their end is that^of advancing facial discrimination. In re Rose, 61 Misc.2d 377, 305 N.Y.S.2d 721, 723 (Sup. Ct. 1969), aff'd mem. , 36 A.D.2d 1025, 322 N.Y.S.2d 1000 (2d Dep' t 1981) .6 Although state law in such a case may be found by resort to the State Constitution, as opposed to the Village Law, it is "state law" nonetheless which forbids the invidious result. As is made plain by the December 1 Decision, Town Supervisor Veteran relied on both the Federal and State Constitutions in rejecting the petition. No conflict between the pertinent federal and state constitutional provisions was perceived by Supervisor Veteran; he acted at the command of both. See especially Whether a town supervisor, as opposed to the courts, has authority to make that determination was not discussed in Rose and is not addressed here. 15 Wellington. 627 F.2d at 587 (central inquiry is whether official subjectively believed an actual conflict between federal and state law existed); id. at 590 (Kaufman, J., concurring) (same). Nor is any such conflict to be found by reference to existing state law; federal and New York constitutional law governing equal protection are in harmony. See Seaman v. Fedourich. 16 N.Y.2d 94, 262 N.Y.S.2d 444, 450 (1965) (noting New York's equal protection clause, embodied in N.Y. Const, art. 1, § 11, "is as broad in its coverage as that of the Fourteenth Amendment"); Dorsey v. Stuyvesant Town Corp.. 299 N.Y. 512, 530 (1949) (holding protection afforded by New York's equal protection clause is coextensive with that granted by Fourteenth Amendment), cert, denied. 339 U.S. 981 (1950).' 7 * « The case at bar, therefore, is readily distinguishable from Cavanagh v. Brock. 577 F. Supp. 176 (E.D.N.C. 1983) (three-judge panel) , a case cited by respondents. Removal in that case was permitted under the refusal clause because the removing defendants argued that the relevant provisions of the North Carolina Constitution. which were alleged to be in conflict with the Fourteenth Amendment, either had been rescinded or, if in effect, could not be complied with due to the contrary dictates of the Federal Constitution. Id. at 179-80. Here, the Equal Protection Clause will embrace whatever discrimination allegedly would have occurred, supra note 5, and Seaman and Dorsey make plain that the corollary state constitutional provision is at least as broad as its federal counterpart. Thus, if Town Supervisor Veteran was 16 required by the Equal Protection Clause of the Fourteenth Amendment to act as he did, he similarly would be required to so act by the equal protection clause of the New York Constitution since the latter is to be read in pari materia with its federal relation. Certainly, notwithstanding Supervisor Veteran's belief that he was complying with state constitutional law, respondents' ability to remove this case under the refusal clause is not lost if the removal petition contains an allegation based on that belief. Such is the teaching of Wellington. Respondents, however, must in good faith be able to plead alternatively that if they were not acting in accordance with state law, then their refusal to so act was the product of conflict between federal and state mandates. Wellington, 627 F.2d at 587. Ng such good faith assertion can be♦ « made here. Federal and state law are coextensive in this area. See also Fed. R. Civ. P. 11 (requiring that any "pleading, motion, or other paper" submitted to the court and signed by an attorney be grounded in good faith belief that its substance is warranted by facts, law, or good faith argument for the law's modification). The jurisdictional paragraph of the removal petition acknowledges this reality. See Verified Petition for Removal f 1 1 , at 4-5 ("proposed village petition was rejected in part on the basis of federal and state Constitutional and statutory provisions providing for equal rights . . . [and,] [accordingly, this action may be removed to this Court by respondents pursuant to 28 U.S.C. § 1443(2)") (emphasis added). The petition's conclusion, however, does not state the law. If it did, then in every case challenging 17 state or municipal action relying on federal authority parallelling cited state law, the case could be removed to federal court. This is not the conundrum contemplated by the refusal clause; indeed, it is no conundrum at all. Federal and state law must not merely parallel one another; they must be in conflict (or, more accurately, there must be a good faith allegation of conflict). See especially In re Quirk, 549 F. Supp. 1236, 1241 (S.D.N.Y. 1982) (refusal clause satisfied since colorable conflict existed between federal court order and New York civil service law); In re Buffalo Teachers— Fed 1 n , 477 F. Supp. 691, 694 (W.D.N.Y. 1979) (removal under refusal clause appropriate since "state defendant caught between the conflicting requirements of a Federal [court] order and of state law"); Zinner, 415 F.^Supp. at 718 {noting refusal clause "'intended to enable state officers, who shall refuse to enforce state laws discriminating in reference to [civil rights] on account of race or color, to remove these cases to the United States courts when prosecuted for refusing to enforce those laws'") (quoting Cong. Globe, 39th Cong., 1st Sess. 1115 (1863) (statement of Rep. Wilson)). Contrasted with those scenarios, respondents here are being prosecuted for having acted as they saw fit under the State's equal protection clause, not for having failed to do so, and that provision tracks its federal namesake. Consequently, we find that there is no colorable conflict between federal and state law in this case, and that removal, if 18 justified here, must be found for reasons other than those provided under the refusal clause.7 b. 28 U.S.C. 5 1441f Under 28 U.S.C. § 1441(b), »[a]ny civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties." Clearly, the assertion of the First Amendment claim in the petition presents a federal question. We are not so sure, however, that an Article 78 proceeding automatically qualifies as a "civil action" under the removal statute. ** « The term "civil action" (or the predecessor term "civil suit") has been capaciously defined. Thus, the Supreme Court has opined that appeals from state or municipal administrative action via writ of prohibition or mandamus may qualify for removal: The principle to be deduced from [our] cases is, that a proceeding, not in a court of justice, but carried on by executive officers in the exercise of their proper functions, as Our decision on the refusal clause might appear gratuitous in light of our holding infra that, even if this case was properly removed, principles of abstention warrant a remand. Our ruling on the abstention/remand, however, might be different were we to find that the case could be removed under the refusal clause. Congress's explicit determination that state officials facing the type of federal-state conflict outlined above should be the option of a Federal forum would inevitably color an abstention analysis. Respect for the state interests outlined infra might very well have to give way in such a circumstance to the overarching federal concern. Federalism (and respect for it) does, after all, have a federal as well as state component. 19 i-1} the valuation of property for the just distribution of taxes or assessments, is purely administrative in its character, and cannot, in any just sense, be called a suit; and that an appeal in such a case, to a board of assessors or commissioners having no judicial powers, and only authorized to determine questions of quantity, proportion and value, is not a suit; but that such an appeal may become a suit, if made to a court or tribunal having power to determine questions of law and fact, either with or without a jury, and there are parties litigant to contest the case on the one side and the other. Upshur County v.__Rich, 135 U.S. 467, 475 (1890). Accord Commissioners_of Road Improvement Dist. No. 2 v. St. Louis S.W. Ry_:— COi, 257 U.S. 547, 557, 559 (1922) . Cf. Weston v. City Council .of— £-har~leston/ 27 U.S. (2 Pet.) 449, 464 (1829) (the term "civil suif/" in defining Supreme Court's appellate jurisdiction over state cases, is a comprehensive one including various modes of proceeding; so long as an adversary proceeding inter partes. it qualifies as a "civil suit"). That said, it is beyond cavil that a statutory appeal of administrative state action, whether or not it involves diverse parties or a federal question, may not be filed in federal court. Department of Transp . and Dev, of Louisiana v. Beaird-Poulan. Inc.. 449 U.S. 971, 973-74 (1980) (Rhenquist, J., dissenting from denial of certiorari) (citing Stude, 346 U.S. at 581). Following from that principle, we doubt that Congress intended the term "civil action" under the removal statute to be so sponge-like as to allow its absorption of every conceivable type of proceeding involving appeal from state or municipal administrative action which touches 20 upon a federal question. To believe otherwise is to suggest that Congress was ignorant of notions of comity and federalism that are such an important part of our constitutional and jurisprudential fabric. Cf. St. Louis S.W. Rv.. 257 U.S. at 554 ("[a]n administrative proceeding transferred to a court usually becomes judicial, although not necessarily so") (emphasis added).8 In New York, an Article 78 proceeding, although admittedly civil in nature, is manifestly circumscribed by the terms of the statute, and it possesses numerous indicia distinguishing it from a typical inter partes civil action. It is a self-styled "special proceeding," NYCPLR § 7804(a), designed to supplant the previous writs of certiorari, mandamus, and prohibition, id. at § 7801. Consequently, and consistent with the predecessor writs, the scope♦ • of review in an Article 78 proceeding is narrowly confined, id. at § 7803, and the relief recoverable is limited, id. at § 7806. A number of other substantive and procedural irregularities are unique to this form of proceeding. See especially NYCPLR § 103 (expressly noting distinction between "civil action" and "special Indeed, the proper application in the modern context of 19th-Century Court precedent defining "civil action" is a matter not free from doubt. Those Courts could not possibly have envisioned the rise of populism, the demise of economic due process, and ultimately the advent of the New Deal, all of which radically changed economic life and governance in this society. Mirroring the federal model produced by the New Deal, a multitude of administrative agencies now permeate the ranks of state decisionmaking. In that context, we think it a legitimate question to wonder whether the Supreme Court and/or the Congress believe it appropriate to define expansively the term "civil action" so as to allow the universal removal of garden-variety appeals from state administrative action. 21 proceeding," and vesting courts with authority to convert a special proceeding into a civil action if nature of claim or relief sought goes beyond confines of the former); j. Weinstein, H. Korn, & a . Mlller' ~ York Civil Practice §§ 7801-06 (1988 & Supp. Dec. 1988) (discussing nature of Article 78 proceeding); D. Siegel, Handbook on. New York Civil Practice §§ 557-70 (1978 & Supp. 1988) (same).9 Given the unique nature of the action, the fingerprints of federalism inevitably will be so spread upon an Article 78 proceeding that we doubt the proceeding ordinarily can be wiped clean of its essential state administrative character by the mere presence of a federal question, no matter how insignificant, and be rendered removable thereby. Therefore, to permit generally the removal of Article 78 proceedings under 28 U.S.C. § 1441 is, we* « think, to invite disruption with well-settled notions of comity and federalism. See, e ^ , Crivello y. Board of Adjustment i83 F. Supp. 826, 828 (D.N.J. i960) (holding appeal of state administrative action via writ of certiorari, although nominally denominated a "civil action at law," did not constitute a "civil action" as that term is used under the general removal statute); Collins v. Public Serv. Com m 'n of Missourir 129 F. Supp. 722, 725 9 4- ^hus' for example, an Article 78 proceeding is f a r Libfrt^MutifaT x hG ^dministrative "appeal" at issue in Horton~v. th^t a ’ U,S- 348 (1961)- The Court there heldworker's a Texas administrative determination on a "civil Ltfon" o C°Uld bS filed in Federal court as anrovtde! ? on grounds of diversity, but only because Texas law ?i?t ?! ^ t * ?USh 9 challen9e "is not an appellate proceeding[;] been decide? hv t I D S t S ~ l l y with°dt reference to Shat may hav!«d f d\d b-Y thS [Texas Industrial Accident] Board." id. at 354-55 (emphasis added) . 22 (W.D. Mo. 1955) (finding appeal of state administrative action by writ of certiorari to county court "was a mere continuation of the administrative proceeding" and, thus, could not be removed). But — t y of Owatonna v. Chicago. Rock Island & Pacific r .r . co. 298 F. Supp. 919, 922 (D. Minn. 1969) (and cases cited therein).10 Despite our misgivings, we assume for present purposes that an Article 78 proceeding may be removed under the general removal statute, for our concerns and respect for federalism can be accommodated in this case by the law of this circuit relating to 10 Our conclusion would by necessity be different when ctlZi1o?f2fnu T j Cl1 ™ ? ^ eedi ng iS s°^htyunder the^refuSl?5 28 u -s *c : § 1443(2), the civil rights removal statute discussed supra. Since an Article 78 proceeding is the prescribed avenue of challenge to administrative action in this State such a proceeding must be removable under the refusal clause if that clause is to be given effect in New York. clause if that ArHrlp ™ 1S°' theJ e may be times when the federal interest in an Article 78 proceeding may so predominate as to warrant the proceeding s removal under 28 U.S.C. § 1441. Thus, in a series Sf cases involving appeals to state courts from tobacco quotas imposed rLoval ufdi"1S?HratiVe reV1leW federal coSts p e S ? “ dremoval under the general removal statute. In those cases however, the local committees were authorised by federal iSJand AaJt^m temberS aPPointed bY the United States Secretary of th e ' manifest;Ln9 the obvious federal interest in regulating (E D ^ C — yis y- Joyner, 240 F. Supp. 689, 690-91 c l ™ V ,cases Clted therein)* Cf, Yonkers Racinggprp. v. city of Yonkers, 858 F.2d 855, 863-64 (2d Cir. 1988? ifiswi?9 r®moval authorized under All Writs Act, 28 U.S.C. § )/ where real possibility that underlying Article 78 cou??eoirt9 C°Uld be. used to frustrate implementation of federal cert dentp/e^ 9Hec to remedy racial discrimination in Yonkers) , £ert •— denied, 57 U.S.L.W. 3619 (1989). ' Absent special circumstances, however, we remain dubious Articl 7s *l s d o m °f a general rule permitting the removal of h ™ k 78 proceedlngs - Although several Article 78 proceedings have boen removed to courts in this circuit, this specific question abil?tve^ beSn addressed* Obviously, it could be argued that the assirapH SUCh Proceedings heretofore simply has beenassumecJ without the need for extended discussion. We are not sosUic • 23 our remand authority. The Supreme Court has held that removed actions generally may not be remanded except within the narrow confines of the remand statute, 28 U.S.C. § 1447(c) (i.e., that the case was removed improvidently or without jurisdiction). Thermtron Prod., Inc, v. Hermansdorfer. 423 U.S. 336, 345 & n. 9 (1976). The Second Circuit, however, has found a practical exception to that rule, concluding "that when the district court may properly abstain from adjudicating a removed case, it has the power to remand the case to state court." Corcoran v. Ardra Ins. Co.. 842 F.2d 31, 36- 37 (2d Cir. 1988). Accord Naylor v. Case and McGrath. Inc.. 585 F.2d 557, 565 (2d Cir. 1978). The exception, among other things, is grounded in the reality that no purpose would be served by retaining a removed case and then dismissing it on abstention grounds, if applicable, rather than simply remanding the matter to the appropriate state forum. Because the fingerprints of federalism referenced earlier are so clearly discernible here, we find abstention to be appropriate and we thus remand the matter in accord with the remand exception outlined in Ardra Insurance. c. Abstention Jurisprudential limitations on our jurisdiction long ago» announced in Burford v. Sun Oil Co.. 319 U.S. 315 (1943) largely control our view of this matter. Burford, of course, involved a challenge to the validity of state administrative action permitting the drilling of certain wells in an east Texas oil field. The legal challenge was 24 initiated in federal court on grounds of diversity and federal question (due process) ; the case at bar was removed to federal court on the latter basis. In granting dismissal of the Burford challenge in the exercise of its equity jurisdiction, the Court noted: Although a federal equity court does have jurisdiction of a particular proceeding, it may, in its sound discretion, whether its jurisdiction is invoked on ground of diversity of citizenship or otherwise, "refuse to enforce or protect legal rights, the exercise of which may be prejudicial to the public interest" fUnited States ex rel. Greathouse v. Dern, 289 U.S. 352, 360 (1933)]; for it "is in the public interest that federal courts of equity should exercise their discretionary power with proper regard for the rightful independence of state governments in carrying out their domestic policy." [Pennsylvania v. Williams. 294 U.S. 176, 185 (1935).]» « Burford, 319 U.S. at 317—18 (footnotes omitted). Those concerns were found to be present in Burford. which involved important state interests (the division of oil-drilling rights) that were the subject of comprehensive state regulation. The Second Circuit has distilled the principles underlying Burford thusly: [Burford] abstention is appropriate when a federal case presents a difficult issue of state law, the resolution of which will have a significant impact on important state policies and for which the state has provided a comprehensive regulatory system with channels for review by state courts or agencies. fBurford. 319 U.S.] at 333-34, 63 S. Ct. at 1107-08. In short, federal courts should "abstain from interfering with specialized, ongoing state regulatory schemes." 25 Alliance of American Insurers v. Cuomo. 854 F.2d 591, 599 (2d Cir. 1988) (quoting Levy v. Lewis. 635 U.S. 960, 963 (2d Cir. 1980)). In the case at bar, petitioners seek the incorporation of the Village of Mayfair Knollwood, which requires a grant of state authority. N.Y. Const, art. 10, § 1; Village Law § 2-200; 1 E. McQuillen, The Law of Municipal Corporations §§ 1.19 & 2.07b (3d ed. 1987) ("McQuillen"). As Town Supervisor Veteran alluded to in his December 1 Decision, the legal concept of village incorporation was created to allow residents of a particular area the opportunity to band together for the purposes of securing fire and police protection and other public services, such as water and sewer. December 1 Decision f 2, at 3-4. Given these uniquely local interests, and particularly in an age of increasingly scarce * • resources (both natural and fiscal), it would seem beyond peradventure that the State of New York retains as profound an interest in certifying village incorporation petitions as does the State of Texas in certifying oil-drilling licenses. See especially Gomillion. 364 U.S. at 342 (recognizing "the breadth and importance" of a State's power "to establish, destroy, or reorganize by contraction or expansion its political subdivisions, to wit, cities, counties, and other local units"); Hunter v. City of Pittsburgh. 207 U.S. 161, 176, 178-79 (1907) (noting creation of municipal incorporations and definition of their size and nature are matters peculiarly within jurisdiction of the States). Accord 1 McQuillen § 3.02, at 235; 2 McQuillen at §§ 4.03 & 7.03; C. Rhyne, Municipal Law §§ 2-2 & 2-26 (1957). Thus, that as a general 26 proposition federal courts should not be muddying the waters in which the village incorporation process swims seems to us an unremarkable and inevitable conclusion. Further, and acting partly as confirmation of the above state interest, New York has established a "comprehensive regulatory system with channels for review by state courts or agencies," American— Insurers, 854 F.2d at 599, to assess the propriety of village incorporation petitions: the statute specifically identifies what geographic areas may be incorporated as a village, section 2-200 of the VillageLaw; ^ it spells out in elaborate detail who may petition for incorporation and what the contents of the petition must comprise, section 2-202; it establishes a public notice and hearing requirement once f is filed with, -a town supervisor, again setting forth in greatuietail the hearing requirements, section 2-204; it specifically^ notes what objections may be lodged against ^ village petition, and how and when these objections should be presented, section 2-206; it sets forth a specific timetable for action on the petition following hearing, and outlines the prerequisites for the written decision that the town supervisor must issue on the matter, section 2-208; ^ specifically provides that review of a town supervisor's decision may be had only by resort to an Article 78 proceeding on grounds that the "decision is illegal, based on insufficient evidence, or contrary to the weight of the evidence," section 2-210(1); it requires that appeal via the Article 78 route must be taken within 30 days from filing of the town supervisor's decision, section 2-210(2), and that such appeal shall have preference over all civil actions and proceedings, section 2-210(4) (e); it goes on to delineate the right to and procedures for conducting^ an election to determine the question of incorporation, sections 2-212 to 2-222; 27 it sets forth the procedure for judicial review of an incorporation election, and provides for a new election if the original election is set aside, sections 2-224 to 2-230; and finally, ' it outlines the formalities of incorporating, the procedures for electing and appointing officers, the conduct of village meetings, the effect on public services, and the taxing authority possessed by the village, sections 2-232 to 2-258. this does not constitute a comprehensive statutory scheme, regulating in this case a matter within the fundamental prerogatives of the state, then the court would be hard pressed to identify such a scheme. Certainly, the scheme is as comprehensive and the interest as strong as those existing in Levy, where the Second Circuit directed abstention due to New York's "complex administrative and judicial system for regulating and liquidating domestic insurance companies." Levy. 635 F.2d at 963. To* « paraphrase Burford, we think the regulation of village incorporations so obviously involves a matter of uniquely state policy that wise judicial discretion counsels in favor of avoiding needless federal intervention in the state's affairs, especially since a comprehensive regulatory scheme to address this matter has been put in place. Burford. 319 U.S. at 332. That this proceeding also implicates a federal question does not alter our conclusion. Burford. too, involved a federal question but, as the Supreme Court noted, ultimate review of that question before the Court was preserved fully by their action, id. at 334- Accord Levy. 635 F.2d at 964. Moreover, the federal question here asserted may never need be reached. Four of the five challenges to the December 1 Decision 28 asserted in the Article 78 petition (claims (l)-(4), delineated supra) involve challenges to the propriety of Veteran's actions under the Village Law.11 Petitioners' counsel has represented that certain of these questions — particularly those involving the nature of the local hearing to be held on these matters, how and what evidence can be received and relied upon, and the scope of the town supervisor's statutory authority — appear to be matters of unsettled state law. We have found little case law specifically ^dd^sssing the state issues here raised. If the December 1 Decision is reversed on any of these grounds, the First Amendment assertion will not be reached. When unsettled questions of state law are susceptible of an interpretation which may obviate the federal constitutional question presented, the federal Court should * « defer on these questions — at least in the first instance — to a state tribunal. Orozco v. Sobol. 703 F. Supp. 1113, 1121 (S.D.N.Y. 1989) (cases collected, including Railroad Comm'n of Texas v. Pullman, 312 U.S. 496 (1941)). See also L e w . 635 F.2d at 964 (since federal question was bound with state issues, best left in the first instance to state courts with review available * We add that the existence of these purely state administrative issues places this case in a posture far different from that found in Gomillion and cases like it, which constitute straight constitutional challenges to gerrymandered municipal boundary plans devised upon conclusion of the legislative or administrative drafting processes. Had the instant incorporation petition been approved under the Village Law, and the Deutsch defendants (assuming they had standing) then challenged that action in federal court on Fourteenth Amendment grounds, we have little doubt that we properly would have jurisdiction over the subject matter and that plaintiffs' choice of a federal forum would be respected. That is not the posture of this case. 29 These concerns militate further in support of abstention.12 As Levy concludes, in words equally applicable here: The claims [in Burford] amounted to an attack . ^he reasonableness of the state administrative action. Thus federal review while involving decision of a federal question, would have entailed a reconsideration of the state administrative decision, carrying with it the potential for creating inequities in the administration of the state scheme. Burford thus suggests that p^2pe^ resPect for the expertise of state officials and the expeditious and evenhanded ultimately before the Supreme Court). "rb*? s P ̂ uhoatKh?/h sss-cSk: s o o t h e “ nsion^iS^rent P/ranel judicia! processes. ■ this case Is ^ 26 n '9 <M 8 7 > • Thus, althoughexistence of 9 largely -Burford considerations, theexistence of Pullman concerns certainly is relevant Notwithstanding Pennzoil's footnote 9, however, there do exist important procedural differences between the "various types of Pjrtinent here, we note that the product of Burfo?d abstention is dismissal, while under Pullman fod^r-ai ~ issues nay be bifurcated, with the — federal court retain!^ ifrl«turai£a OVtor thatf°?"er anr the liti,3ants allowed the option - . , eturning to that forum to address the federal con ce rn s following state review. Enqland v. Louisiana state Bd. of Medical Examiners, 375 U.S. 411, 421-22 (1964).---ait see Harris S ! ggmm rs Court v. Moore, 420 U.S. 77, 88 & n.14 (19751 (dismissal state- courtCiurisd?ot^rifte H necessarV to remove obstacles to federal and iL-*.1 diCtl°n) .* ItT makes no sense to bifurcate the ?nd ?tate issues in this case, especially since to do so for como^ettla11/ frustrate the Village Law's scheme of providing FnJth^nPl t aild exPe.dlti°us review of incorporation petitions9 210 M W b ) of Sthe ev niWalth Tthe *arvice requirements of section 2- ■7Q i, Village Law, the costs of bringing a new Article (gi^e^th^nuiiler^?633 State issues ”°uld be substantial"lolutiM" ine^i taSf Parctles evolved) , arguably rendering that instant nrnpo bl Since Burford concerns predominate in the remand th^ e n ? ? ^ 9 ' ? ? Ch°OSe to keep the proceeding whole and in both Burford anH T 6r to state court which, as was emphasized Fir-gt ~ rfo^d .and bevy, is entirely competent to address the First Amendment issue asserted here (if it need be reached). 30 administration of state programs counsels restraint on the part of federal courts. Levy, 635 F.2d at 964. Here, Article 78 review under the Village Law is designed to provide the aggrieved party with the opportunity for expedited and confined judicial review of state administrative action. That review is, in essence, largely an extension of the administrative process itself given the reviewing court's limited scope and remedial authority, and it is that forum which should be deciding the state issues which predominate in this matter. If federal questions are implicated in that process and improperly are decided, ultimate review before the Supreme Court is preserved. Abstention, therefore, is warranted here. Assuming the general removability of Article 78 proceedings, the instant matter involves a federal question and may be removed pursuant to 28 U.S.C. § 1441(b). Consistent with Ardra Insurance, however, and because we would abstain from deciding the issues here presented under familiar jurisprudential considerations, the instant proceeding is remanded to the court from whence it was removed, the New York Supreme Court for Westchester County. Cor»clusion SO ORDERED Dated: White Plains, N.Y April /o , 1989April f*i GERARD L. GOETTEL U.S.D.J. 31 Exhibit 2 UNITED STATES DISTRICT SOUTHERN DISTRICT OF NEW YORK m m YVONNE JONES, ANITA JORDAN, APRIL JORDAN, LATOYA JORDAN, ANNA RAMOS, LIZETTE RAMOS, VANESSA RAMOS, GABRIEL RAMOS, THOMAS MYERS, LISA MYERS, THOMAS MYERS, JR., LINDA MYERS, SHAWN MYERS, ODELL A. JONES, MELVIN DIXON, GERI BACON, MARY WILLIAMS, JAMES HODGES, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC., WHITE PLAINS/ GREENBURGH BRANCH, AND NATIONAL COALITION FOR THE HOMELESS, 88 n vVi I • "( i a C ? Plaintiffs, -against- LAURENCE DEUTSCH, COLIN EDWIN KAUFMAN, STEVEN NEIL GOLDRICH,t MICHAEL JAMES TONE, COALITION*OF UNITED PEOFLES, INC., and ANTHONY F. VETERAN, as Supervisor of the Town of Greenburgh, Defendants. 1 |« . U it*-- NOV 1 t993 1 - - -1'- C-, £ P i ■svl 88 Civ. COMPLAINT Plaintiffs, by their attorneys, for their con- plaint, allege (on information and belief except as to paragraphs 3-5, 8, and 39-50): Nature of the Action and Background 1. This action is brought by a number of black citizens of Greenburgh, parents of homeless families in Westchester County, the National Association for the Advance ment of Colored People, White Plains/Greenburgh Branch ("NAACP") and the National Coalition for the Homeless (the "National Coalition") to obtain redress against a racially motivated conspiracy formed by the defendants other than Anthony Veteran (hereinafter the "Conspiring Defendants") for the purpose of depriving racial minorities and homeless persons of constitutional and statutory rights. The Conspiring Defendants are residents of Westchester County who have banded together to seek incorporation of a new, almost totally segregated village. Their declared purpose is to defeat a project to build housing for homeless families, most* « of whom belong td racial minorities, by using the new village's zoning power. In furtherance of this scheme, they have drawn the village boundaries in a grotesque shape, thereby attempting to ensure its all-white composition and to guarantee attaining their racially exclusionary objective. Defendants' conduct constitutes a conspiracy in violation of 42 U.S.C. § 1985 that should be declared unlawful, enjoined, and remedied, as against the Conspiring Defendants but not defendant Veteran, by an appropriate award of monetary damages. 2. This conspiracy is a direct attack on a coordinated effort by state, county and municipal government -- aided by a non-profit, charitable organization — to 2 establish safe and decent temporary housing for homeless families with children in Westchester County. Westchester County currently shelters approximately 957 families with 1978 children in a number of sub-standard facilities includ ing motels in New York City and certain Hudson Valley coun ties. Homeless persons, particularly children, are irrevoca bly damaged by living conditions in those motels. Westchester County is suffering from an unprecedented housing crisis with a higher proportion of homeless families to its population than even New York City. Jurisdiction 3. This Court has jurisdiction pursuant to 28 U.s.c. §§ 1331, 1337, and 1343. This action arises under the Fourteenth and Fifteenth Amendments to the Constitution of the United States, the Voting Rights Act, 42 U.S.C. § 1973, the Civil Rights Act, 42 U.S.C. § 1985, the Fair Housing Act, 42 U.S.C. § 3604, the Social Security Act, 42 U.S.C. §§ 301 et sea., Article I, §§ 1 and 11, and Article XVII, § 1 of the Constitution of the State of New York, §§ 40-c(l) and (2) of the Civil Rights Law of the State of New York, S 291(2) of the Executive Law of the State of New York, and §§ 62 and 131 of the Social Services Law of the State of New York, and regulations promulgated thereunder. Declaratory relief is authorized pursuant to 28 U.S.C. §§ 2201 and 2202. 3 Venue 4. Venue is proper under 28 U.S.C. § 1391(b). All defendants reside in the Southern District of New York, and the claim arose in that District. Parties 5. The plaintiffs are the following: a. Plaintiff Anita Jordan is a homeless black woman who lives with her two children, April (age 18 months) and Latoya (age two and a half), in a single room at the Elmsford Motor Lodge, 290 Tarrytown Road, Elmsford, New York. The Jordan family was*]51aced in the. motel by Westchester County. b. Plaintiff Anna Ramos is a homeless white woman who lives with her three children, Lizette (age eleven), Vanessa (age five) and Gabriel (age one), in a single room at the Coachman Hotel, 123 East Post Road, White Plains, New York. The Ramos family was placed in the motel by Westchester County. c. Plaintiffs Thomas and Lisa Myers are a homeless, black married couple who live with their three children, Thomas, Jr. (age four), Linda (age three) and Shawn (age two), in two small rooms at the Elmsford Motor Lodge, 4 290 Tarrytown Road, Elmsford, New York. The Myers family was placed in the motel by Westchester County. d. Plaintiff Yvonne Jones is a black home- owner who has resided in the vicinity of the proposed village boundary in the unincorporated part of Greenburgh at 118 North Evarts Avenue, Elmsford, New York for 35 years. e. Plaintiff Odell A. Jones is a black homeowner who has resided in the vicinity of the proposed village boundary in the unincorporated part of Greenburgh at 19 Van Buren Place, White Plains, New York for 27 years. f. Plaintiff Geri Bacon is a black homeowner who has resided in the vicinity of the proposed village boundary in the unincorporated part of Greenburgh at 16 Adams Place, White Plains, New York for 33 years. g. Plaintiff James Hodges is a black home- owner who has resided in the vicinity of the proposed village boundary in the unincorporated part of Greenburgh at 51 Cabot Avenue, Elmsford, New York for two years. h. Plaintiff Mary Williams is a black homeowner who has resided in the vicinity of the proposed » village boundary in the unincorporated part of Greenburgh at 179 Sears Avenue, Elmsford, New York for 28 years. i. Melvin Dixon is a black homeowner who has resided inside the proposed village boundary at 15 North Lawrence Street, Elmsford, New York for 25 years. 5 j . Plaintiff NAACP is a branch of a nonprofit membership association representing the interests of approximately 500,000 members in 1,800 branches throughout the United States. Since 1909, the association has sought through the courts to establish and protect the civil rights of minority citizens. NAACP's address is One Prospect Avenue, White Plains, New York 10607. k. Plaintiff National Coalition is a not-for-profit organization incorporated under New York law. Its primary purpose is to advocate responsible solutions to end homelessness with an emphasis on establishing decent housing for homeless persons^. The National Coalition also •w.provides direct assistance in the form of rent subsidies, food and legal counsel to homeless people. Its address is 105 East 22nd Street, New York, New York 10010. 6. The Conspiring Defendants are natural persons, and each has the following address: Laurence Deutsch 211 Wood Hampton Drive White Plains, New York 10603 Colin Edwin Kaufman 8 Hartford Road (a/k/a/ Hartford Lane) White Plains, New York 10603 Steven Neil Goldrich 128 North Hampton Drive White Plains, New York 10603 Michael James Tone 19 Chelsea Road White Plains, New York 10607 6 7. Defendant Coalition of United Peoples, Inc. ("COUP") is a not-for-profit corporation that purports to have been organized under the laws of the State of New York. Its members are real property owners who reside in the vicinity of the proposed homeless housing site. 8. Defendant Anthony F. Veteran is the Town Supervisor of the Town of Greenburgh and is named as a defendant in that capacity. Co-Conspirators 9. Various other persons not made defendants in this action participated as co-conspirators with defendants* « in the violation’s set forth below, and performed acts and made statements in furtherance thereof. Factual Background The West HELP Development 10. West H.E.L.P., Inc. (Homeless Emergency Leverage Program, Inc.) ("West HELP") is a not-for-profit corporation organized under the laws of the State of New York. One of West HELP'S purposes is the construction of housing for homeless persons in the State of New York. 11. The County of Westchester (the "County") is a municipal corporation existing pursuant to the laws of the State of New York. The County is located in the Southern District of New York. 7 12. The Town of Greenburgh (the "Town") is a municipal corporation existing pursuant to the laws of the State of New York. The Town is located within the County. 13. Homeless families in Westchester County presently are quartered at great public expense in often squalid motel rooms. A parent with a number of children typically is allotted a single room. 14. A number of homeless families in the County are sheltered in motels that are far from their communities of origin. This aggravates the devastating impact of homelessness by disrupting relationships with schools, neighbors, relatives and other social and economic supports. 15. In or about October 1987, the County and West HELP jointly proposed the establishment of several housing developments for homeless families with children in the County. 16. In or about January 1988, the Town offered to have established within its boundaries one of those develop ments (the "West HELP Development"). The Town, together with West HELP, proposed as the site for the housing approximately 30 acres of land, presently owned by the County, situated in the Town (the "Development Site"). In April 1988, the Town, by unanimous resolution of its supervisor and council members, expressed support for the West HELP Development and 8 requested that the County conduct the required environmental review. 17. The West HELP Development is intended to provide safe, economical and humane emergency shelter to homeless families with children. 18. The West HELP Development would provide "transitional" housing for homeless families pending their establishment of more permanent homes. As planned, it would consist of six two-story buildings with approximately 18 housing units in each. A seventh building would be con structed to house day care, counseling, and selected social services for the benefit of those lodged at the Development Site. The West HELP Development is widely regarded as a model in the provision of cost-effective, decent transitional housing to homeless families with children. 19. The West HELP Development also includes the following proposals, among others: a. The County would lease the site to West HELP for the period of construction plus ten years. b. West HELP would secure construction and permanent financing for the West HELP Development from the sale of tax exempt bonds issued by a public benefit agency created under New York law. The bonds would be amortized over a 10 year period, after which control of the Development 9 Site would revert to the government subject to a requirement that it continue to have a housing-related use. c. The County would enter into an agreement with West HELP for the placement of homeless families with children in the West HELP Development. Under this agreement, West HELP would receive a funding stream sufficient to cover operating costs as well as amortization and debt service of the bonds used to finance the West HELP Development. 20. A majority of the homeless persons in the County are members of racial minorities. Such persons are among the intended and expected beneficiaries of the West HELP Development. ,• Form,at ion of the Conspiracy 2 1 . in early 1988, defendant Deutsch, together with others presently unknown to plaintiffs, formed COUP. Defendant COUP'S purpose is to stop the West HELP Development. Defendant Deutsch is COUP'S president. 22. On or about February 11, 1988, Defendant Deutsch participated in a meeting held at the Valhalla High School in the County, at which there was discussion of means to oppose the West HELP Development. Later that same month, Defendant Deutsch publicly announced that he and other Town residents intended to prepare a petition, pursuant to the Village Law of the State of New York, to incorporate a new 10 village — to be called "Mayfair Knollwood" — within the Town. As envisioned, the geographic boundaries of Mayfair Knollwood were to include the Development Site. 23. Defendant Deutsch and his co-conspirators intend to use the incorporation of Mayfair Knollwood to block the West HELP Development. As Defendant Deutsch reportedly has put it: We'll go ahead with secession and take a nice piece of taxable property with us. The "secession" plan was and is racially motivated. As Defendant Deutsch was quoted as stating in opposing the West HELP Development: You're taking a piece ef a ghetto and dumping it some where else "to get another ghetto started. 24. Thereafter in 1988, a petition for incorpora tion of the proposed Village of Mayfair Knollwood was pre pared and the process of circulating the petition for signa ture, pursuant to the Village Law of the State of New York, began (the "Petition"). As charted in the Petition, the proposed Village of Mayfair Knollwood includes the Develop ment Site. I 25. Defendant Deutsch participated in preparing the Petition, approved it, and assisted in its circulation. Defendants Kaufman, Goldrich and Tone agreed, in the Petition, to accept service of all papers in connection with a proceeding for incorporation. 11 26. The proposed boundary for Mayfair Knollwood is an irregular, multi-sided configuration designed by the Conspiring Defendants and their co-conspirators for the manifest purpose of excluding minority residents of the Town. The shape of the proposed Village and its purpose and effect to exclude racial minorities are shown on the map attached as Exhibit 1. 27. Just as the proposed boundary of Mayfair Knollwood was drawn in an effort to exclude racial minori ties, so too was it drawn in an effort to secure for Mayfair Knollwood a disproportionate part of the tax base and recrea tional and undeveloped land area of the Town. 28. Defendant COUP, the Conspiring Defendants and their co-conspirators seek unlawfully to gerrymander the proposed boundaries of Mayfair Knollwood so as to (a) exclude racial minorities from the proposed village, (b) appropriate, to the detriment of Town residents not within the proposed Mayfair Knollwood boundary, essential municipal resources, facilities, and amenities, and (c) appropriate a major proportion of the Town's undeveloped land with the purpose and effect of fostering racial segregation in housing. 29. Prior to September 14, 1988, hundreds of Town residents signed the Petition, thereby evidencing their support of the conspiracy to violate plaintiffs' rights. 12 30. On or about September 14, 1988, defendant Deutsch and other co-conspirators formally presented the Petition to the Town. A contemporaneous news report stated the following: "The incorporation is a fact," Coalition ri.e. COUP] President Laurence Deutsch said. "The town may delay us, but it won't stop us. There is nothing that the town or county could do which could divert us from the incorporation." The Position of Defendant Veteran 31. Defendant Veteran, as Town Supervisor of the Town of Greenburgh, is governed in the performance of his duties by the Constitutions and laws of the United States and the State of New^York. 32. The procedure that Defendant Veteran must follow in the processing of the COUP Petition is set forth in the Village Law of New York. That statute provides, in summary, for: a. a hearing on the Petition at which its compliance with statutorily specified technical requirements is examined; the statute does not expressly direct Defendant Veteran to consider whether the Petition is consistent with the Constitutions of the United States or New York, or their laws ; b. within a specified time, a decision on the Petition; 13 c. thereafter, in the event the decision is favorable, a vote on the proposed incorporation by those within the boundaries set forth in the Petition; and d. in the event of a majority vote in favor, incorporation of the new village as proposed in the Petition. 33. Following presentation of the Petition to the Town on or about September 14, 1988, Defendant Veteran initiated the procedures described in paragraph 32 above by scheduling a hearing for November 1, 1988. 34. Defendant Veteran is and has been an outspoken supporter of the West HELP Development and has consistently opposed the plan of COUP and the Conspiring Defendants to »* «incorporate the -village of Mayfair Knollwood for the purpose of blocking the West HELP Development. 35. Defendant Veteran swore an oath in taking the office of Town Supervisor, pursuant to Article XIII, § 1 of the New York Constitution and section 25 of the New York Town Law, as follows: I do solemnly swear (or affirm) that I will support the constitution of the United States and the constitution of the State of New York . . . . Approval by Defendant Veteran of the Petition, with its racially discriminatory purpose and effect and its breach of the numerous constitutional and statutory provisions set forth in paragraphs 39 through 48 below, would constitute a breach of Defendant Veteran's oath of office. 14 36. Notwithstanding the foregoing, COUP and the Conspiring Defendants assert that Defendant Veteran has no authority to deny the Petition on any ground other than technical non-compliance with the specific mandates of the Village Law, and Defendant Veteran has initiated the proce dures thereunder for consideration of the Petition. 37. Plaintiffs assert that Defendant Veteran may not, consistent with his oath of office, proceed with the Petition in any manner whatsoever. 38. There exists a justiciable case or controversy between the parties concerning their rights and obligations as set forth above. Constitutional and Statutory Background 39. In pertinent part, the Fourteenth Amendment of the Constitution of the United States provides that: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States? nor shall any State deprive any person of life, liberty or property without due process of law? nor deny to any person within its jurisdiction the equal protection of the laws. 40. In pertinent part, the Fifteenth Amendment of the Constitution of the United States provides that: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. 15 41. In pertinent part, 42 U.S.C. § 1973 provides that: No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any state or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color . . . . 42. In pertinent part, 42 U.S.C. 6 3604(a) pro vides that it shall be unlawful "to refuse to . . . otherwise make available or deny a dwelling to any person because of race, [or] color. . . . " 43. In pertinent part, Article I, § 1 of the Constitution of the State of flew York provides that: * * No member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, . . . unless by law of the land, or the judgment of his peers. . . . 44. In pertinent part, Article I, § 11 of the Constitution of the State of New York provides that: No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivi sion of the state. 45. Section 40-c(l) of the New York Civil Rights Law provides that: All persons within the jurisdiction of the state shall be entitled to the equal protection of the laws of this state or any subdivision thereof. 16 46. In pertinent part, Section 40-c(2) of the New York Civil Rights Law provides that: No person shall, because of race, . . . be subjected to any discrimination in his civil rights, . . . by any other persons or by any firm, corporation or institu tion, or by the state or any agency or subdivision of the state. 47. In pertinent part, Section 291(2) of the New York Executive Law (Human Rights Law) provides that: The opportunity to obtain education, the use of places of public accommodation and the ownership, use and occupancy of housing accommodations and commercial space without discrimination because of . . . race . . . is hereby recognized as and declared to be a civil right. 48. The Federal Social Security Act, 42 U.S.C. §§ 301 et sea. . guarantees 1̂*1 homeless families in the State of New York safe and decent emergency housing. 49. Article XVII, § 1 of the Constitution of the State of New York provides as follows: The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time deter mine . Thus, in New York State, the provision of assistance to the needy is not a matter of legislative grace; rather, it is specifically mandated by the State Constitution. Sections 62(1) and 131 of the New York Social Services Law charge social service districts, such as the County, with the responsibility to provide public assistance and care for persons unable to provide for themselves. 17 50. Plaintiffs are persons protected by and having enforceable rights under the provisions set out in paragraphs 39 through 49 above. The Violation of Plaintiffs1 Rights and Injury 51. Beginning in or about February 1988 and continuing thereafter to the present, the Conspiring Defendants and their co-conspirators engaged in a conspiracy in violation of 42 U.S.C. § 1985(3); defendant Veteran is a participant in the conspiracy because he has initiated the procedure on the Petition called for by the Village Law. The conspiracy includes a continuing agreement, understanding and concert of action for the purpose of: a. Depriving, either directly or indirectly, a person or class of persons -- racial minority citizens -- of the equal protection of the laws or of equal privileges and immunities under the laws set forth above; b. Preventing or hindering duly constituted authorities of the State of New York — the County and the Town — from giving or securing to all persons, including racial minorities, in such State the equal protection of the laws. 52. As set forth in paragraphs 21 through 30 above, the Conspiring Defendants did, or caused to be done, acts in furtherance of the conspiracy alleged; as set forth 18 in paragraph 33 above, defendant Veteran did, or caused to be done, an act in furtherance of the conspiracy alleged. 53. Plaintiffs have been injured in their person or property or deprived of having and exercising rights and privileges of a citizen of the United States, and have thereby suffered and are threatened with irreparable injury, including but not limited to the injury to homeless adults and children caused by the denial of safe and decent emer gency shelter. 54. Plaintiffs have sustained monetary damages in amounts presently unknown. ** a CLAIMS FOR RELIEF Count I 55. Plaintiffs repeat paragraphs one through 54. 56. Defendants, by their acts, have conspired and are continuing to conspire, in breach of 42 U.S.C. § 1985(3), to abridge the voting rights of plaintiffs Yvonne Jones, Odell A, Jones, Melvin Dixon, Geri Bacon, Mary Williams and James Hodges in violation of the Fifteenth Amendment to the Constitution of the United States, the Voting Rights Act of 1965, 42 U.S.C. § 1973, Article I, §§ 1 and 11 of the New York Constitution, and §§ 40-c(l) and (2) of the New York Civil Rights Law. 19 Count II 57. Plaintiffs repeat paragraphs one through 54. 58. Defendants, by their acts, have conspired and are continuing to conspire, in breach of 42 U.S.C. $ 1985(3)-, to violate and have violated the housing rights of plaintiffs Anita Jordan, April Jordan, Latoya Jordan, Anna Ramos, Lizette Ramos, Vanessa Ramos, Gabriel Ramos, Thomas Myers, Thomas Myers, Jr., Linda Myers and Shawn Myers in violation of the Fourteenth Amendment to the Constitution of the United States, the Fair Housing Act, 42 U.S.C. § 3604, Article I, § 11 and Article XVII, § 1 of the New York Constitution, §§ 40-c(1) and (2) of the N^r York Civil lights Law, and § 291(2) of the Executive Law of the State of New York. Count III 59. Plaintiffs repeat paragraphs one through 54. 60. Defendants, by their acts, have conspired and are continuing to conspire, in breach of 42 U.S.C. § 1985(3), to abridge the rights of plaintiffs Anita Jordan, April Jordan, Latoya Jordan, Anna Ramos, Lizette Ramos, Vanessa Ramos, Gabriel Ramos, Thomas Myers, Thomas Myers, Jr., Linda Myers and Shawn Myers to safe and lawful emergency shelter in violation of the Fourteenth Amendment to the Constitution of the United States, the Social Security Act, 42 U.S.C. § 301 et seg., Article I, § 11 and Article XVII, § 1 of the New 20 York Constitution, and §§ 62(1) and 131 of the New York Social Services Law and the regulations promulgated thereunder. Count IV 61. Plaintiffs repeat paragraphs one through 54. 62. a. Article VI, Clause 2 of the Constitution of the United States provides as follows: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. b. Article XIII, § 1 of the Constitution of »* «the State of New-York provides as follows: [A]11 officers, executive and judicial . . . shall . . . take and subscribe the following oath or affirmation: "I do solemnly swear (or affirm) that I will support the constitution of the United States and the constitution of the State of New York . . . " c. Section 25 of the New York Town Law provides as follows: "[E]very town officer shall take and subscribe . . . the constitutional oath of office. . . . " 63. Under the constitutional provisions set forth above, defendant Veteran has a duty to uphold federal and state law. Moreover, in assuming his office as Town Super visor, defendant Veteran swore an oath to uphold the Constitution and laws of the United States and of the State of New York. 21 64. Pursuant to New York Village Law §§ 2-204, 206, 208, defendant Veteran has certain duties to hold a hearing and to render a decision with respect to the Petition, either favorably (in which case the Petition would be submitted for a vote by the electorate) or adversely (in which case there would be no vote). Thus far, he has not rendered that decision. 65. As set forth in paragraphs 31 through 38 above, there is a justiciable controversy between plaintiffs and defendants as to their respective rights and obligations under the foregoing Constitutional and statutory provisions. * « - Relief Sought Accordingly, plaintiffs demand judgment as follows: 1. As to Counts I through III: a. Declaring that defendants have conspired in violation of 42 U.S.C. § 1985(3); b. Directing entry of a permanent injunction restraining defendants from continuing their unlawful con spiracy, including, but not limited to, pursuing any further proceedings with respect to the Petition to incorporate the proposed Village of Mayfair Knollwood; c. Awarding plaintiffs monetary damages in such amount as may be proven at trial; 22 d. Awarding plaintiffs their reasonable attorneys' fees, costs, and disbursements incurred in the prosecution of this action. 2. As to Count IV, declaring that defendant Veteran has the right and obligation, under the Constitution and laws of the United States and the State of New York, to deny or to refuse to proceed further with the Petition. 3. As to all Counts, directing such other and further relief as the Court may deem just and proper. Dated: Greenburgh, N.Y. November 1, 1988 PAUL, WEISS, RIFKIND, WHARTON & GARRISON By. Cameron Clark Attorneys for Plaintiffs 1285 Avenue of the Americas New York, N.Y. 10019 (212) 373-3000 Of Counsel, Robert M. Hayes Virginia G. Schubert COALITION FOR THE HOMELESS 105 East 22nd Street New York, N.Y. 10010 (212) 460-8110 Andrew M. Cuomo 2 Park Avenue Suite 1415 New York, N.Y. 10016 (212) 686-1000 Edward Hailes, Jr. NAACP, Inc. 260 Fifth Avenue New York, N.Y. (212) 481-410p Julius L. Chambers John Charles Boger Sherrilyn Ifill 99 Hudson Street New York, N.Y. 10013 (212) 219-1900 23 PFODOSFD BOUNDARY OF VILLAGE MULTI-RACIAL HOUSING TOJTN OF GREEK BUR Weucieaer Ctunrj, Nn» Y f* In the Matter ofthe Proposed Incorporation of the Village of Mayfair Knollwood A petition for the incorporation of certain territory in the Town of Greenburgh c» the Village of Mayfair K n v llw v v /J h e v i u g J u l y L « « ii iw w e iv w J b y turn u u Swpl«*ub«J. 14, 1988, end after due posting and publication of notice in accordance with Section 2-204 of the Village Law, a hearing to consider the legal sufficV.>ncy of euch petition having been held on November 1, W 4 , at the Greenburgh Sown Hall, Knollwood and Tarrytovm Roads, Elmsford, New York, and said hearing having been adjourned until November 21, 1988 for the receipt of written testimony, in accordance with Section 2-206 of the Village Law,»and all testimony and objections having been heard; Now, therefore, I hereby determine that the aforesaid petition does not comply with the requirements of Article 2 of the Village Law, does not comply with the requirements of the Constitution of the United States of America, and does not comply with the requirements of the Constitution of the State of New York, for the following reasons: 1. The boundary description submitted with the petition did not describe the boundaries of the proposed village with "common certainty" thereby making it impossible to locate the boundaries with the precision that is necessary. Numerous gaps in the proposed boundaries were discovered making the description defective. The memorandum in opposition aubmitted by the Town Engineer clearly details the deficiencies in the boundary description. At least 15 voids in the description were discovered rendering it impossible to accurately define the village boundaries. The description does not even begin at a known point on a filed map which is the fundamental criteria of all property descriptions. The description uses the centerline of Grasslands Road yet fails to note that Grasslands Road has been relocated and that the centerline at many points lies within the Town of Mount Pleasant. # • For these reasons and the other reasons stated in the memo of the Town Engineer the boundary description is clearly defective and does not describe the proposed village with "common certainty". 2. The boundaries, where ascertainable, were gerrymandered in a manner to exclude black persons from the proposed village. Such gerrymandering constitutes a blatant attempt at racial discrimination and violates the rights granted to all cititens by the Constitution of the United States of America and the Constitution of the State of New York. In the entire 30 years during which I have held elective office I have never seen such a blatant and calculated attempt to discriminate. The boundaries 2 - repeatedly deviate from a natural course solely to exclude individual properties where blacks live. Within the boundaries of the proposed village there is not a single unit of multi-family housing, housing which historically has been more accessible to minority groups because of its lower cost. The boundary tigs and sags approximately 1000 feet along Route 9A to exclude a scatter site public housing project populated by 25 black families. The boundary carves around the Granada Condominium development on three sides to exclude its approximately 90 black families. The boundary carves around the Old Tarrytown Road School property, now owned by a black developer, on three sides to exclude its future population of 87 families, the minority of which are anticipated to be black families. The boundary carves through the neighborhood of North Elmsford, a neighborhood which has stood cohesively as a unified area since the 1880's, including its predominantly white area in the village but excluding its predominantly black area. The boundary carefully excludes the black families of the River Park Apartments, Parkway Homes, Parkway Gardens, Hillside-Wyndover, and of course, the public housing and low and moderate income housing areas of predominantly black Fairview. Included in the proposed village is all the available undeveloped lands bordering black areas. These undeveloped lands are the only natural expansion areas for the black 3 - neighborhoods. By taking these lands it is clear that the petitioners intend to stop the growth of the black neighborhoods in an attempt to exclude future generations of blacks from Greenburgh. While Article 2 of the Village Law does not specifically address itself to the "intent* of the petitioners, I firmly believe that the rights granted by the federal and state constitutions transcend the procedural technicalities set forth in the Village Law. The proceedures for the formation of a new village cannot be used to accomplish an unlawful end. Therefore, it is my obligation as a public official to defend the constitution and to reject .the petition on the grounds thatft « its purpose is" to discriminate against black persons, to segregate them from whites by the imposition of political barriers, and to prevent the natural expansion of the black population in the Town of Greenburgh. 3. The new village was proposed for the sole purpose of preventing the construction of transitional housing for homeless families near the neighborhood of Mayfair Xnollwood. Such an invidious purpose is not what was contemplated by the Legislature when the statutes governing the incorporation of villages were drawn and cannot be permitted to succeed. Historically, the legal concept of incorporated villages was created to afford residents of an area an opportunity to create a multipurpose special district to - 4 - secure fire or police protection or other public eervices. Typically, clusters of people in an otherwise sparsely settled town joined together to provide services that would not be of benefit to the Town as a whole. After World War II, the rapid population growth of suburban towns led to the creation of town improvement districts to provide needed services and the incorporation of new villages virtually ceased and several existing villages were dissolved. The petitioners do not seek to incorporate to provide themselves with services. The neighborhoods in question are already serviced by town water, sewer, police and fire protection. *o «Rather, the petitioners seek to incorporate for another purpose. Their stated purpose for forming the village is to prevent the proposed construction of transitional housing for 108 homeless families near their neighborhoods. Before agreeing to consider the homeless project, now known as Westhelp, the Town Board insisted that various safeguards be made a part of the proposal to adequately mitigate against any possible adverse impacts. The Westhelp project includes a land set-aside of approximately 34 wooded acres, the majority of which would remain as a natural woodland buffer around all sides of the housing with a minimum of 400 feet of woodlands between all buildings and existing homes. The predominantly black homeless residents would be provided on-site day cere, 5 - counseling* social services* recreation* transportation/ and 24 hour security. Visitation would be restricted to a single visitor's room in full view of a security guard. Only homeless families would be housed on the premises including only young mothers* their babies and other small children. There would be no derelicts, drug addicts, alcoholics* or bums. Children of school age would be bused back to their school district of origin thereby providing continuity of education. In summary, the project would provide a clean* efficient, cost effective, and humane alternative to welfare motels. The 108 families that would be housed for an average stay of six months each represent only a fraction of the ov^r 4500 homeless persons now present in Westchester County. Yet, given all the safeguards and the high purpose of the Westhelp project, the petitioners have organised to stop the project by any means possible solely because of the irrational argument that it is to be located in their "back-yard". While Article 2 of the Village law does not specifically address itself to the "intent" of the petitioners, I firmly belie/e that the rights granted by the federal and state constitutions transcend the procedural technicalities set forth in the Village taw. The proceedures for the formation of a new village cannot be used to accomplish an unlawful end. - 6 - Therefore/ it is my obligation as a public official to defend the constitution and to reject the petition on the grounds that its purpose is to deny homeless persons needed services/ to exclude homeless persons, and to racially discriminate against homeless persons vho are predominantly black. 4. The petition is defective in that a substantial number of signatures were obtained under false pretenses. 1 have received numerous objections from persons vho signed the petition stating that they were told that the petition was only to ask for a straw poll of the residents on their opinion as to whether a village should be formed, not a petition to formally commehce the incorporation procedure. 5. The petition is defective in that a substantial number of the signatures contain irregularities and do not match the known signatures of the persons alleged to have signed. 6. The petition is defective in that numerous residents were omitted from the list of "regular inhabitants". In particular, many of the newer residents were omitted. Datedt Elmsford, N.Y. ANTHONY F. Supervisor Town of Greenburgh i. F. VETERAN arvisor 7 - (212) 373-3234 June 8, 1989 Paul Agresta, Esq. Town Hall, Town of Greenburgh Tarrytown & Norwood Roads Elmsford, New York 10523 Greenberg v. Veteran Dear Paul: I enclose for your review a draft petition for a writ of mandamus. I am simultaneously circulating this draft to my co-counsel for their comments as well. We also are preparing an appendix of supporting papers for the petition. If you or Karen have any thoughts, please call me (373-3234) or Bill Gerson (373-3416). Sincerely, Jay L. Himes Enclosure FEDERAL EXPRESS cc: Joyce Knox Jack Boger Robert M. Hayes Andrew M. Cuomo Rev ued 9/8 6 No. 39-7476 m • 0Q UNITED STATES COURT OF APPEALS ‘ FOR THE SECOND CIRCUIT In the Matter of the Applica tion of MYLES GREENBERG and FRANCES M. MULLIGAN, Petitioners-Appellees, -against- ANTHONY F. VETERAN and SUSAN TOLCHIN, Respondents-Appellants. NOTICE OF MOTION Paul Agresta, Esq. Town Attorney Town of Greenburgh P. 0. Box 205 Elmsford, New York (914) 993-1546 » 10523