MAYVILLE - Busti and Lakewood residents will have to wait until Monday to hear whether the permissive referendum for the sale of the current town hall is valid.
On Monday, the Hon. Judge Deborah Chimes of the Chautauqua County Supreme Court heard arguments about the status of the permissive referendum. Richard Thor, Busti councilman, filed an action titled "Richard B. Thor vs. Darlene Nygren, as Town Clerk of the Town of Busti, et al." in the Supreme Court. The action requests that as of Section 91 in New York's Town Law, the court find void and insufficient a petition filed with the town clerk on March 11. The petition requested that a resolution approving the sale of the town of Busti building at 121 Chautauqua Ave. to the Jamestown Area Community Federal Credit Union be put to a permissive referendum.
The referendum needed 148 signatures, and 222 signatures were collected. Several of those signatures have come under fire, however.
TWO ARGUMENTS FOR
Thor, represented by Attorney Joel Seachrist, said the petition is insufficient, void and not in accordance with the provisions of the town law. This is because the preamble to the signature sheets fails to contain any protest against an act or resolution of the town board as required by Section 91 of the town law. The preamble, which states "... I do hereby petition the Busti Town Council for a town permissive referendum relating to the sale of Busti Town Hall, 121 Chautauqua Ave, (Busti) Lakewood NY 14750 (Section 385.07, Block 2, Lots 1 and 78) approved for sale by the Busti Town Council, Feb. 12, 2014" is general dissent, not an actual protest, according to Thor's action.
Seachrist argued that the signers of the petition should know exactly what they are signing. He said that while he didn't think there were any deep nefarious actions by those leading the drive, the wording was vague and susceptible to misinterpretation and misdescription by those soliciting signatures. He said a proper petition should have said "... and I hereby do protest the resolution adopted by the town board of the town of Busti, New York, on Feb. 12, 2014, authorizing the sale of the town building at 121 Chautauqua Ave. to the Jamestown Area Community Federal Credit Union for $300,000."
Affidavits of four residents said they didn't know what exactly they were signing.
It was also contended that the signature sheets witnessed by Dr. Rudy Mueller were obtained through inappropriate use of his influence as a doctor that led some of his patients and co-workers to sign even though they may not have understood the true purpose of the petition. Thor also alleges signature sheets witnessed by Samuel Whitmore are tainted in that some signatures may have been obtained outside of Whitmore's actual presence. Seachrist argued all nine signature sheets witnessed by Mueller should be declared invalid. This would remove 71 signatures. He also called into question the six sheets witnessed by Whitmore, which would remove 37 signatures. If both sheets were declared invalid, 108 signatures would be removed, bringing the total to 114.
There were also three signatures to be stricken from the petition. Two people signed twice and one person resides in Ellicott, not Busti.
RESPONDENT CARA BIRRITTIERI
Cara Birrittieri, one of the individuals who signed the petition and handed it in to the village clerk, was represented by Attorney Richard Stanton. The major point Stanton argued for was the citizens' fundamental right to a permissive referendum and the right to vote on that petition.
In Birrittieri's objection to Thor's accusation that the preamble was vague, she said the petition itself clearly identified the action of the town board for which the petitioners seek to review through the authorized referendum.
In retaliation to the claims against Mueller, there were no references to valid statute or case laws in New York stating that a doctor may not acknowledge a client's signature to petition a public matter to referendum. It was also said that since there was no actual signature not witnessed by Whitmore, that point is moot.
There were three affidavits which said Thor called residents' homes to make sure they understood what they were signing.
"I hope the judge allows citizens the right of referendum," said Birrittieri, of Lakewood. "... Fact is the public has a right to vote and a right to petition."
Mueller and Whitmore could not be reached for comment.
On March 11, Birrittieri and Whitmore presented 222 signatures collected over the course of a month to Nygren. The potential referendum is a result of Busti's proposed sale of its current town hall and purchase of the former Tordella's building at 125 Chautauqua Ave. The town in recent months was approached by the Jamestown Area Community Federal Credit Union, which has an expired lease on its current location. The credit union has offered $300,000 for Busti's current town hall. Due to their expired lease, the credit union is under some urgency to move, and the offer is not open-ended.
While there was support for the sale of the current town hall, voices of dissent rose when it came to the purchase of 125 Chautauqua Ave.
The more popular arguments revolved around the potential for Busti to move into Lakewood's Anthony C. Caprino Municipal Building and outcry over taking another building off the tax roll just as one was put back on - especially when Whitmore had expressed interest in purchasing the building.
Supporters of the town board's decision countered by pointing out the move into the Tordella's building was the most cost-effective option and saying that the town shouldn't put money into a building it doesn't own - especially when the village hall is not handicap-accessible.
The public referendum cannot be on the purchase of the former Tordella's, but is allowed on the sale - on which the purchase is contingent. Acting upon this, those who are against Busti's decision had 30 days to collect 148 signatures to force a special election. However, it should be noted, Busti has the ability to close the contingency in the contract of the purchase at 125 Chautauqua Ave.
A recently formed citizens group, Citizens for Better Government, is calling the action by Thor an affront to its right to petition their town government.
"We worked very hard to put together a proper and legal petition, and we should not have to defend it in a courtroom," said Birrittieri, CBG spokesperson. "We got the required number of signatures. We should simply have a vote."
Many members of CBG are outraged over the handling of the entire process, and agreed to change the name of the group from Citizens Action Committee to Citizens for Better Government to put the local board on notice.