Manorhaven has received a notice of claim for what the three claimants call “unlawful appointments” made by the village, according to legal documents.
To later sue for damages against a municipality or other governmental organization, state law requires that a notice of claim be drafted and delivered. Blank Slate Media has received a copy of the documents, which the village date stamped for Aug. 2.
Brendan Fahey, Jeremy Devine and Audra Singer are seeking their “lawful appointments” to be recognized and retroactively corrected to the Board of Zoning Appeals and Planning Board(s), according to the notice of claim. They are contesting the appointments of Elise Ledda, Frank Ottaviani and Richard Zimbardi.
They are also demanding restitution for what they call a “violation of claimants’ rights to due process and equal protection under the United States and New York Constitutions.”
During his last days as Manorhaven’s mayor, Jim Avena filled several vacancies on June 30. He appointed Devine and Singer to the planning board and Fahey to the zoning board.
On July 4, at noon, Avena’s term ended. Two days later, at the village’s organizational meeting, John Popeleski, his successor, was sworn in. At that meeting, the trustees appointed Ottaviani, Ledda and Zimbardi to fill the open positions.
Section 3-312 of state law says the mayor must fill any vacancies in posts that result from reasons other than the end of their tenure. Although the outgoing mayor had already appointed the former three, the new board did not approve them.
The notice says Fahey and Devine took their oaths of office July 8. Singer was not informed of her appointment until July 16. On July 18, she took her oath.
“Let the court decide,” said Avena about the matter last month. “I felt that I was within my rights as mayor at the time when I was advised so by my council. If they object to it, take it to the judge.”
Popeleski said last month that Avena’s failure to communicate rendered Fahey’s appointment “null and void.”
“It was done on a Friday and [Avena’s] term was up on the 4th, so it was done basically behind my back,” he said. “I had zero notifications on it, which Mayor Avena should have communicated with me via email to say: ‘Look, I put these people on the board.’”
The former and current mayors both agreed on the June 30 date for the letter. However, the conflict is centered on when the village received it.
Avena said he delivered the letter while still in power. Popeleski said the village did not receive it until 12:34 p.m. on July 6, after Avena’s tenure had expired.
Amid the controversy, trustees met in a special session on July 15 at 10 a.m.
The meeting notice sent out on July 13 referred to it as an “emergency resolution.” The board specifically changed laws governing zoning and planning boards at the meeting.
Subject to trustee approval, the mayor now picks the chairs of both boards annually. It also restricted persons to two terms in the BZA.
“At no point in time may any person serve more than two terms,” it reads. “Whether it be consecutive or non-consecutive terms or appointments, which shall include existing members.”
Popeleski denied any link between the ongoing controversy and the legislative changes. He said the lack of term limitations had bothered him while he was still a trustee.
“We felt that two terms, which is 10 years, [make for] more of a diverse board,” he said. “So a person who’s on for a long time — not that they can be swayed — but it’s good to get different ideas after a while.”