DECISION AND ORDER The Court has reviewed e-filed documents numbered 1-27, 32, and 40-42 on this Petition. Upon the foregoing papers, Petitioner moves by Order to Show Cause requesting an order: (a) enjoining Respondents from re-zoning Subject Property; (b) enjoining Respondents from alienating Subject Property; (c) declaring Respondents’ acts and omissions of re-zoning efforts arbitrary and capricious; (d) declaring the SEQRA determination arbitrary and capricious and null and void; (e) re-open the public hearing for the re-zoning of Subject Property; (f) enjoining Respondent, Village of Freeport from placing matters related to Subject Property without prior written notice to Petitioner; (g) requiring Respondents, Village Board of Trustees, and Mayor Robert T. Kennedy, to participate in training pursuant to POL §107; (h) directing Respondents to post all meeting minutes in compliance with POL §106; (i) awarding the Petitioner costs and attorneys fees. In addition to the filed documents, an oral argument was held on June 2, 2022. The Court denied the continuation of a Temporary Restraining Order on that date. The two remaining issues before this Court are whether the Respondents have violated the Open Meetings Law (“OML”) and whether the Petitioners have established good cause for this Court to declare the Respondents’ actions null and void. The OML is codified in Public Officers Law Ch. 47, Art. 7, Sections 100-111. The Court’s decision is as follows: Respondents are seeking to have Section 55, Block H, Lot 372 (“Subject Property”) re-zoned from Residence AA District to Industrial B District. In order to do so, Respondents must first alienate Subject Property. In commencing the process, Respondents filed a re-zoning application (“Application”) with the Nassau County Planning Commission (“Commission”) on March 17th, 2022. On March 22nd, 2022, a notice was sent out for a public hearing on April 18, 2022 (“Meeting 1″), and on the agenda of this regular meeting was “the re-zoning of [Subject Property].” Petitioner acknowledges receiving notice for Meeting 1. On March 29, 2022, Respondents supplemented the Application by sending additional documents to the Commission. On March 31, 2022, the Commission approved the Application. Prior to the convening of Meeting 1, Petitioner requested the Application from Respondents and their affiliates on at least five different occasions. Respondents failed to provide the Application to the public or to Petitioner prior to Meeting 1. As a result, the public and Petitioner were unable to reference the Application or any documents related to rezoning at or prior to Meeting 1. After Meeting 1 was conducted, Petitioner made at least four more unsuccessful attempts to receive a copy of the Application. Petitioner’s counsel finally received the Application on April 29, 2022. Another regular meeting was held on May 2, 2022, however, the rezoning of Subject Property was not on the agenda. Respondent alleges that after the regular meeting was held, he received an email from the Legislative Director, Senator John Brooks, requiring a “special meeting” to be held immediately. The “special meeting” was scheduled for the next day, on May 3, 2022 (“Meeting 2″), during normal business hours. As a result of Meeting 2, Respondents took action and sent a “Home Rule Request” to the New York State Legislature for a bill to go forward regarding the alienation of Subject Property. It should be noted that the parties are involved in a related legal dispute, under Index No. 612536/2021, Inc. Village of Freeport v. Freeport Union Free School District, wherein Respondent, Incorporated Village of Freeport, in the instant action, commenced the lawsuit against Petitioner, seeking a judgment from this Court declaring that Respondents hold title to the Subject Property unencumbered by any interest in favor of Petitioner. Subject Property is an athletic field where Petitioner alleges they have held an easement since 1970. Since 1970, Petitioner and the citizens of the Village of Freeport have benefitted from the easement and are currently still using Subject Property for both athletic and educational purposes as part of the Freeport Union Free School District. The Petitioner alleges that the rezoning of Subject Property will terminate their easement. Respondents seek to have a declaratory judgment ordering that Petitioner has no interest in Subject Property, which will allow Respondents to continue the ongoing negotiations to sell the property to a potential buyer. Petitioner claims the perspective buyer of Subject Property is Amazon. Meeting 1: Failure to Turn Over Application Petitioner alleges that Respondents’ failure to provide the Application prior to Meeting 1 is a violation of the OML and the Court should null and void any actions taken. Respondents adamantly oppose the Petition, claiming the Application was not required to be turned over. Secondly, the Respondents claim that no action was taken, and therefore, Petitioner’s claim is premature until after the Legislature signs the bill. Respondents’ claims are in direct conflict with the legislative intent of the OML statute. Since its inception, in 1979, the OML “gives the public the right to attend meetings of public bodies, listen to the debates and watch the decision-making process in action. It requires public bodies to provide notice of the times and places of meetings, and keep minutes of all actions taken.” (Your Right to Know, NYS Open Government Laws, Committee on Open Government NYS Department of State, www.dos.ny.gov/coog [April 2014]). “If records that are scheduled to be discussed during an open meeting are available under FOIL or consist of a proposed resolution, law, rule, regulation, policy or any amendment thereto, the record is required to be made available “to the extent practicable” online and in response to a request to inspect or copy prior to or during the meeting.” (id. at page 15). On November 18, 2021, legislation signed by New York State Governor Kathy Hochul went into effect, amending the OML, POL Section 103(e), to require that documents that are going to be discussed at a public meeting be made available upon request or posted on the local government’s website at least 24 hours prior to the meeting. The law prior to November 18, 2021, required that “to the extent practicable as determined by the agency, such records be available at, or prior to, the meeting.” Prior to the amendment of §103(e), the Fourth Department held that respondents providing documents seven (7) hours prior to the meeting was deemed sufficient and practicable. (See Clover/Allen’s Cr. Neighborhood Assn. LLC v. M&F, LLC, 173 AD3d 1828, 1832 [4th Dept 2019]). The legislature’s amendment of the statute to include a twenty-four (24) hour disclosure requirement is indicative of the legislatures’ intent to require a strict time period for providing documents prior to a public meeting. Here, the Respondents adamantly claim they had no obligation to provide the Application to Petitioner prior to Meeting 1. Respondents have not provided any legal basis or explanation for their belief which fails to comport with POL §103(e). Petitioner’s attorney made the first request for the Application on March 25, 2022, by submitting a Freedom of Information Law (“FOIL”) request. On April 1, 2022, the Respondents answered Petitioner’s FOIL request by stating they needed an additional twenty days to furnish the Application. On April 11, 2022, Petitioner’s attorney called the Village’s Clerk’s Office for an update on the FOIL request, and the representative stated the Application had “not been made available to the Village.” The Petitioner’s attorney called the Village again on April 12, 2022, and was unsuccessful in retrieving the Application. On the evening of April 15, 2022, the Respondents posted the agenda for Meeting 1 but the Application was still not posted or provided. During Meeting 1, the Application was entered into the record but had not yet been provided to Petitioner or the public in compliance with POL §103(e). On April 19, 2022, Petitioner’s attorney went to the Respondents’ office in yet another unsuccessful attempt to obtain the Application. That same day, Petitioner’s attorney submitted a written request to Respondent, the Village of Freeport, for the Application and also contacted the court reporter to obtain a copy of the transcript from Meeting 1. On April 21, 2022, the Respondents’ attorney informed Petitioner’s attorney that Respondent, the Village of Freeport would provide access to the Application “when [the documents were] ready.” By this time, the Respondents had a complete Application that was already approved by the Commission, and were capable of providing same to Petitioner. Respondents failed to provide Petitioner with the Application despite the fact that notably, this was the twentieth day from Respondents’ answer to Petitioner’s FOIL request on April 1, 2022, wherein they indicated the Application would be furnished in twenty days. On April 25, 2022, Petitioner’s attorney was told by the court reporting service that the Meeting 1 transcript was ready and had been provided to the Village but that the Village had given instructions to the court reporter to not provide a copy of the transcript to Petitioner’s attorney. On April 26, 2022, Petitioner’s attorney submitted a final written request for the Application and Meeting 1 transcript.1 Respondents had ample opportunities to comply with Petitioner’s multiple requests prior to Meeting 1. The Court finds that it was practicable for the Respondents to turnover the Application prior to Meeting 1 and Respondents have not provided any excuse for their failure to do so. Respondents’ belief that the Application was not required to be provided is in contradiction to the OML and against public policy. This Court finds that the Application was required to be provided to Petitioner in order for Respondents to comply with the statute. Therefore, the Court finds that the Respondents violated POL §103(e). Meeting 2: Improper Notice Petitioner alleges that Respondents’ failed to comply with the notice requirement pursuant to POL §104 for Meeting 2, and as such is a violation of the OML and the Court should null and void any actions taken. Respondents claim they complied with the notice requirements of POL §104.2 in order to conduct this “special meeting” immediately, at the NYS Legislature’s request. There were also two other meetings Respondents’ classify as “special,” but there is no allegation made by Petitioner as to Respondents violating the OML with respect to those other two meetings. It should be noted, that there is no statutory definition of “special meeting” in the OML. There are only open meetings and closed executive sessions. (POL §103). In order to comply with the notice requirement of an open meeting, you must comply with POL §104. POL §104(1) applies to “a meeting scheduled at least one week prior,” while POL §104(2) applies to “every other meeting.” Neither party has alleged that Meeting 2 was closed as an executive session. In order for the Court to find that the notice requirement of Meeting 2 was proper, the Respondents must have complied with POL §104(2), which requires “public notice of time and place…shall be given or electronically transmitted, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.” Here, Respondents’ papers are devoid of any factual claims that actual notice was given prior to Meeting 2. Respondents argue that the notice requirement doesn’t apply because there is no specific time period for notice of a “special meeting.” During oral argument before this Court, Respondents stated that the standard is to “do your best.” (Transcript p. 19, Line 15). Respondents also claimed that “we made sure the buildings were posted and we sent out via electronic means an actual notice.” (Transcript p. 22, Lines 18-19). Respondents also stated “we posted it on our building and we sent it to the meeting.” (Transcript p. 23, Line 12). Respondents concede that no notice was provided directly to Petitioner, despite the fact that the parties had already commenced litigation with respect to Subject Property. According to the Petitioner, the news media produced the notice on May 5, 2022, two days after Meeting 2 was held. No specific evidence or affidavits were provided by Respondents establishing the contents of the alleged notice for Meeting 2, and Respondents failed to submit any affidavits establishing who sent and posted the notice. Respondents did not specify the exact building location where the notices were posted, or when they were posted, nor have they provided a copy of the notice to the Court. The Respondents do not state what electronic means were used to send the notice to the media or public. The Respondents’ claims are merely conclusory that they have complied with the notice requirement of POL §104(2). Petitioner’s attorney affirms that he continued to access Respondents’ website and that he never saw the notice of Meeting 2 posted, as required by POL §104(6). Respondents make zero claims that this information was accessible on their website. No evidence has been provided to convince the Court that Respondents attempted to comply with the standard to provide notice at a reasonable time prior thereto for Meeting 2. Therefore, the Court finds that Respondents violated the notice requirements of POL §§104(2) and 104(6). Additionally, it should be noted that Petitioners are unable to make any arguments in terms of whether any other documents should have been provided prior to Meeting 2 to comply with POL §103(e). Since Meeting 2 was held without notice, Petitioner cannot articulate the agenda or what documents may have been requested or necessary to participate in Meeting 2.2 After Meeting 2 was held, Respondents sent a Municipal Home Rule Request to the Legislature for a bill regarding the alienation of Subject Property. Petitioner alleges that the alienation bill cannot be passed until the Municipal Home Rule Request is received. Petitioner has established good cause that Respondents violated the OML regarding Meeting 1 and Meeting 2. Respondents’ failure to provide the documents and comply with the requirements of the OML are a result of more than mere negligence. (Cunney v. Bd. of Trustees of Vil. of Grand View, 72 AD3d 960, 962 [2d Dept 2010]). Respondents’ belief that the documents were not required to be provided is wholly inaccurate and against public policy. “Respondents are not unsophisticated. They acknowledge their obligations pursuant to the Open Meetings Law.” (New York State Nurses Ass’n v. State Univ. of New York, 39 Misc 3d 588, 592 [Sup Ct 2013]). Respondents’ failure to produce the notice in accordance with the OML appears to be “intentionally vague as to shield the public from the true purpose of the [meeting]…and failed to meet the standard for transparency required by the Open Meetings Law.” (id. at 595-596). This Court finds, that Respondents’ notice requires more than a “do your best” standard, and therefore, Respondents failed to comply with the OML notice requirement. The Respondents have failed to offer any plausible reason why they were unable to comply with the Petitioner’s numerous demands for the Application. Nor do the Respondents deny that the court reporting service for Meeting 1 was instructed to withhold the minutes from being turned over to Petitioner. The Court hereby finds that Respondents’ violations were not a “result of an unintentional failure” (POL §107) and in fact, were willful in nature. Accordingly, it is hereby ORDERED AND ADJUDGED, that the Petition is granted to the extent that the action of the Respondents is annulled and Respondents are enjoined from proceeding with the Application to rezone Subject Property until such time as they comply with the mandates of the Open Meetings Law and all other applicable statutory provisions. Any relief requested not specifically addressed herein is denied. This constitutes the Decision and Order of the court. Dated: June 17, 2022
