City of New York v. State

158 A.D.2d 169, 557 N.Y.S.2d 914, 1990 N.Y. App. Div. LEXIS 7899
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJune 28, 1990
StatusPublished
Cited by6 cases

This text of 158 A.D.2d 169 (City of New York v. State) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of New York v. State, 158 A.D.2d 169, 557 N.Y.S.2d 914, 1990 N.Y. App. Div. LEXIS 7899 (N.Y. Ct. App. 1990).

Opinions

[171]*171OPINION OF THE COURT

Wallach, J.

The action seeks a declaration as to the constitutionality of Laws of 1989 (ch 773), as amended by Laws of 1990 (ch 17) (herein chapter 773), a special law setting forth a process by which the Borough of Staten Island may be separated from the City of New York and established as a new City of Staten Island. Chapter 773 first provides for a referendum in which only Staten Islanders would vote on whether a commission of only Staten Islanders should be created to draft a proposed charter for a proposed City of Staten Island independent of the City of New York. In the event of a majority affirmative vote, there would then be a period set aside for public hearings on the proposed charter on Staten Island only, to be followed by a second referendum in which only Staten Islanders would vote on whether the proposed charter should be adopted. In the event of a majority affirmative in this second referendum, the charter commission is to prepare "proposed legislation enabling the borough of Staten Island to disengage and separate from the city of New York.” The final step would be enactment of such enabling legislation.

The concurring opinion would declare chapter 773 to be constitutional on the ground that "the Legislature may, after all, choose to present any final enactment for the approval of the entire body politic of the City of New York.” This is to strongly suggest, if not actually to hold, that the Legislature must somewhere along the line, before a secession is actually effected, amend chapter 773 so as to "authorize a method whereby the residents of [the other four boroughs] are accorded the opportunity to express their views on the subject.” We hardly think it appropriate for a court to advise the Legislature as to what it must do with a piece of legislation so as to avoid a future declaration of unconstitutionality; in any event, we see no basis for anticipating, as the concurrers apparently do, a future inclination on the part of the Legislature to obtain input from the residents of the other four boroughs, let alone their consent.

It is clear that chapter 773 was designed primarily to inform the Legislature as to the extent of secessionist sentiment on Staten Island and the manner in which Staten Islanders would govern themselves if permitted to do so; not the least concern is shown for public sentiment in the other four boroughs. There is no reason to suppose that the legisla[172]*172tors who enacted chapter 773 intend to await a home rule message from the City of New York before passing upon the enabling legislation should the process go that far, or are contemplating further legislation putting the question of Staten Island’s secession to the residents of the other four boroughs. Certainly, there is no room for any such supposition in the State’s argument. The State’s position is that chapter 773 would be constitutional without a home rule message even if affirmative votes by Staten Islanders in the referenda being put to them were determinative and not merely advisory. Indeed, the State goes further, asserting, if not advocating, the right to create a new City of Staten Island without a home rule message and without putting the question to any segment of the electorate. Simply put, the State claims a power to create and alter municipal boundaries that is plenary, or absolute, except as it might be limited by general laws. We should take this claim at face value, accept that the State really does mean to "bypass” input from the other four boroughs and to implement this process without further refinement or amendment, and decide whether the State can, as it claims, carve a new city out of the territory of one already existing without a home rule message from the already existing city. To say that this issue is not ripe for determination is like saying that events were not ripe for determination in the harbor of Charleston, South Carolina, in April 1861.

Moreover, it is not so that chapter 773 is purely advisory in nature. It is only in the event of affirmative votes in both of the referenda being put to Staten Islanders that further legislation will be required to effect a secession. A negative vote in either referendum will, according to the State, stop the process cold. Staten Islanders are thereby given a veto power over secession denied the residents of the other four boroughs. Surely this raises a question of equal protection ripe for adjudication—why should Staten Islanders be given the franchise to stop secession and other New Yorkers not?

With respect to the merits, plaintiffs argue that chapter 773, contemplating as it does dismemberment of the City of New York on such a large scale, relates to the property, affairs or government of the City of New York, and that a home rule message from either the Mayor or City Council of the City of New York is therefore required under NY Constitution, article IX, §2 (b) (2). As authority, plaintiffs rely principally on City of New York v Village of Lawrence (250 NY 429, 445), which, while holding a home rule message to [173]*173have been unnecessary for purposes of a State law that had detached a narrow strip of undeveloped land from the City of New York and annexed it to Nassau County, nevertheless "recognize[d] that, conceivably, in some cases the effect of a change of the boundaries of a city upon its property, affairs or government might be very serious” and so substantial as to implicate home rule. However, to the extent Lawrence left open the question of whether a "serious” change in a city’s boundaries can be made by the State without a home rule message, we think it was answered the very same year in Adler v Deegan (251 NY 467), a "decisively enlightening case” (Wambat Realty Corp. v State of New York, 41 NY2d 490, 494), where, albeit in dictum, the court’s plurality opinion explained that Lawrence did not rest on "[t]he degree of the [boundary] change, or its importance”, but on the "principle” that laws affecting municipal boundaries simply do not "com[e] within the Home Rule provisions” of the Constitution (supra, 251 NY, at 474, citing People ex rel. Unger v Kennedy, 207 NY 533). This is because under NY Constitution, article IX, § 2 (a) and article X, § 1, the Legislature is expressly empowered to create and organize local governments and to create municipal corporations by special law. As to these matters, the power of the Legislature is "plenary” and beyond home rule constraints (City of New York v Village of Lawrence, supra, at 440; see also, Matter of LaGuardia v Smith, 228 NY 1, 7; Adriaansen v Board of Educ., 222 App Div 320, 323-324, affd 248 NY 542). Given this constitutionally conferred, plenary power over municipal boundaries, the subject is a matter of State concern by definition (see, Matter of Board of Educ. v City of New York, 41 NY2d 535, 542), and the State is free to legislate unfettered by home rule constraints. Legislation dealing with matters of State concern, albeit of localized application and having a direct effect on the most basic of local interests, does not violate the Constitution’s home rule provisions (Adler v Deegan, supra, at 490-491; Matter of Board of Educ. v City of New York, supra, at 542-543; Wambat Realty Corp. v State of New York, supra, at 493-494; Matter of Town of Islip v Cuomo, 64 NY2d 50). Nothing in the concurring opinions in Adler takes issue with the plurality’s explanation of Lawrence.

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Bluebook (online)
158 A.D.2d 169, 557 N.Y.S.2d 914, 1990 N.Y. App. Div. LEXIS 7899, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-new-york-v-state-nyappdiv-1990.