So it isn't surprising that more than a few local residents have tentatively broached the question of whether Incorporation of the Village of Palisades might provide a more effective local land-use and construction decision-making process. As long-time residents are aware, this wouldn’t be the first such effort. However, the failures of previous incorporation attempts have left many with the sense that however desirable incorporation might be, it simply isn’t in the cards.

That assumption bears careful examination. The first step of that examination is a look at the history of previous incorporation efforts and the reasons they were ultimately unsuccessful. Prior efforts to incorporate were undertaken in 1985, 1987, and 1988, due in no small part to the indefatigable Andy Norman, whose leading role in local politics often led local wags to refer to him as the "Mayor of Palisades," although no such incorporated entity or position actually existed as a matter of law.

In the instance of the 1985 effort, the boundaries of the proposed incorporated community were drawn broadly, encompassing 1282 residents, or more than double the minimum population of 500 required under state law for the incorporation. A petition with 262 signatures submitted to the Orangetown Supervisor - a position then held by longtime Republican stalwart Joseph Colello - was initially denied. However, following a successful legal appeal of that decision through an Article 78 filing, a referendum on the incorporation proposal went forward. In the end, hopes for incorporation were not realized: when the ballots were counted, the proposal went down to defeat by a margin of 369-294.

Building on the lessons of that first defeat, a second effort commenced in 1987. This time, the proposed boundaries of the town were adjusted significantly. Although the difference in territory amounted, according to contemporaneous accounts in Our Town and The Journal-News, to five percent or less, the population of the district as proposed in 1988 was cut almost in half, leaving 656 residents and 441 eligible voters. Once again, on April 1, 1987, Supervisor Colello denied the request, raising objections to the accuracy of the territorial description, the lack of a complete census, and alleging that the boundaries amounted to an illegal gerrymandering scheme. No appeal of Colello’s denial was undertaken. But the story does not end there.

Incorporation advocates regrouped and on February 23, 1988, submitted a third petition, signed by 253 of the 398 eligible voters in the proposed Town of Palisades, out of a total population of 642 inhabitants. Following a hearing on April 29, 1988, Colello again denied the petition, citing the same grounds asserted in his previous denials. As in 1985, the petitioners brought an Article 78 proceeding to vacate Colello’s denial, ultimately resulting in a June 30, 1988 decision by the Honorable Kenneth Lange. In that decision, although Judge Lange dismissed Colello’s assertions regarding the description of metes and bounds as well as the allegation of gerrymandering, he ultimately upheld Colello's denial on the ground that petitioners had failed to provide a "complete list" of inhabitants. The matter was then appealed to the Supreme Court of NY Appellate Division, which ruled on December 31, 1990 that:

"The petition for incorporation was legally insufficient in that it did not include a 'complete' list of the regular inhabitants of the territory in accordance with clear statutory mandate. (See Village Law §2-202[1][c][2] Matter of Luria v. Conklin, 138 AD2d650, Matter of Village of Viola Hills [Lempent-Conklin]…."

Although that decision was curious for its reference to a "complete list" - a term found nowhere in NY State Village Law §2-202 - because it did follow a clear line of precedent within the Second Appellate Division, no further appeal to the NY State Court of Appeals was undertaken by the petitioners, and the question of incorporation has lain dormant since that time.

So What Has Changed?

Clearly, the underlying community concerns regarding inappropriate development in Palisades which led first to the formation of a Historic District, and later to three efforts at incorporation, have not been significantly assuaged by the composition of the HABR, its manner of operation, or its specific decisions in a number of cases which have attracted widespread interest.

The first significant difference between 1988 and 2005 is that unlike Joe Colello - a Republican Supervisor with a strong base of support in inland communities and a history of consistent hostility to the interests of river communities such as Palisades - the current Orangetown Supervisor is Tom Kleiner, a Democrat with a strong base of support in the river communities.

However, even were Supervisor Kleiner to look more favorably on an incorporation effort, several parties with deep pockets, among them IBM, Columbia University, and the developers of the driving range, might conceivably take legal action to stop incorporation.

Should that occur, we arrive at the second significant difference: the legal landscape has shifted significantly since 1990.

In an August 25, 2005 decision in the NY Appelate Division of the Supreme Courts Third Department (Matter of Defreestville Area Neighborhoods Association, Inc. et al., Respondents, v. Paul Tazbir, Supervisor of the Town of North Greenbush 23 AD3d70) the court addressed a factual issue precisely the same as that on which the 1990 Second Department decision upholding Colello’s denial rested, and not only came to a diametrically opposite finding, but demolished the legal reasoning on which the prior Second Department decision rested.

Responding to the determination of Supervisor Tazbir that the petitioners in that case had failed to provide a "complete" list of all inhabitants of the proposed area of incorporation, the court not only noted that the word "complete" does not appear in NY Village Law §S-202 and cited a prior Third Department decision that "certainly a list that is absolutely complete and accurate would be impractical to obtain and this court has concluded that a list that is substantially complete complies with the statute," but it went on to specifically note the line of cases in the Second Department, including the 1990 Palisades decision discussed above, saying that "to the extent that cases from the Second Department can be read as subscribing to a more stringent standard in compiling this list, namely, a list free from any imperfection…..we simply disagree and decline to follow them."

We may be thankful that back in 1990 local residents and attorney Martin Cornell declined - perhaps more wisely than they knew - to appeal the 1990 decision to the New York State Court of Appeals. Such an appeal could well have resulted in a higher court upholding the wrongheaded Second Department decision, establishing an extremely odious statewide precedent.

The entry of last year’s Third Department decision, a decision which is much more rooted in the clear language of the State Village Law, as well being considerably more careful in its legal reasoning, creates a rift between two Departments – precisely the sort of matter which the higher court is charged with taking in hand.

The natural conclusion of all of the above is that, should an additional effort at incorporation go forward in 2006 or 2007, the likelihood of opposition at the level of the Town Council and the Office of the Supervisor is lower than it was in 1988. Even if anti-incorporation entities with deep pockets choose to fight the matter in the courts, the chances that they will prevail at that level are much reduced.

The only question that remains is whether there is sufficient local interest to pursue the matter.

The writer, Fred Little, expresses his gratitude to the Palisades Historical Committee and the Palisades Library for access to their historical files, and to William A. Gerard for assistance with legal research and analyses. Any errors of omission or commission are the writer’s alone.