Lawsuit filed to stop Sherman's sale referendum

PHOTOGRAPHER: Jason Subik

CAROGA — Another lawsuit has been filed in state Supreme Court in Fulton County regarding the former Sherman’s Amusement Park — this one from a town taxpayer seeking to invalidate the upcoming Nov. 5 referendum proposing the $50,000 sale of the park to the nonprofit Caroga Arts Collective.

John Livingston, a critic of the Town Board’s plan to sell to the CAC, filed the lawsuit on Tuesday through his attorneys, Maynard, O’Connor, Smith & Catalinotto of Albany.

Livingston’s complaint seeks a declaratory judgment that would either remove the Sherman’s sale referendum from the Nov. 5 ballot, or invalidate the results of the vote. The lawsuit also seeks legal fees. Livingston’s suit says the town failed to consider other offers for more money for the property.

The Town Board has been unwilling to sell to a developer because the property was donated to the town by a local attorney, George Abdella, with the agreement that the property be used only as a public amenity. Abdella, however, has given his blessing to selling the property to CAC, but only CAC.

Livingston said it took him two years to find a law firm willing to take his case against the town, although he says many lawyers told him they agreed with him. He said he compiled 300 pages of research, including numerous documents filed as appendices to the lawsuit. He said so far the case has cost him between $5,000 and $6,000.

“This isn’t about the money,” he said. “I’m there for the people. So much wrong, so many backdoor deals. That’s my mission. The whole town of Caroga is behind me, besides the 50 people who are trying to push this.”

The lawsuit names the town of Caroga, the Caroga Town Board, Town Supervisor James Selmser, Town Board members Jeremy Manning, James Long, Kent Kirch, Town Clerk Linda Gilbert and the Fulton County Board of Elections as defendants in the lawsuit.

Fulton County’s attorney Jason Brott, who would defend the county Board of Elections, said he can’t comment on pending litigation.

Manning, one of the Town Board members named in the lawsuit, said he and the rest of the board were served with the suit Thursday. He shot back at Livingston’s claims.

“I think Mr Livingston’s action against the town is shameful,” he said. “The Town Board is simply seeking to put the decision of the future of the Sherman’s property in the hands of the voters, as should have been done long ago, and give them a voice. Mr. Livingston wants to deny the public of this right. The lawsuit asks a judge to both stop the referendum, and to overturn the will of the voters and invalidate the election itself. This is a dangerous precedent to set and strikes me as both undemocratic and un-American.”

The lawsuit is the second lawsuit filed this year pertaining to Sherman’s. In August the former owner of the park, Gloversville-based attorney George Abdella, filed a lawsuit against the town seeking $3.1 million in damages, or the return of Sherman’s Amusement Park plus damages from the town having improperly maintained it. Abdella gave the park to the town through a complex donation agreement in 2014. Abdella’s donation agreement forbids the town from selling the 8.6-acre property located at routes 10 and 29A. He does not want to see the property commercially developed.

Livingston alleges a long list of complaints about Abdella’s donation agreement, including that the town’s attorney at the time, David Jung, was a tenant of Abdella’s law office in Gloversville, that the town filed the deed to the property before passing a resolution accepting the gift and that the deed doesn’t reference the stipulations of the donation agreement in any way.

The lawsuit states the Town Board and Town Clerk Linda Gilbert did not properly publish the resolutions authorizing the sale of the property to the CAC. The resolution authorizing the sale is contingent on majority approval of the referendum.

Selmser disputes the allegation that the town has not followed all of the of the legal requirements regarding the referendum.

“Everything in the resolutions was authorized by our attorneys,” he said. “To my knowledge, we’ve tried to follow the law in everything we’ve done, and our attorneys have advised us on all of the legal implications.”

The sale agreement also gives the town the right of first refusal for three years after the sale to the nonprofit CAC, but requires the town to match the sale offer.

“Petitioner submits that the failure to insist that the town’s right to re-purchase Sherman’s Amusement Park for $50,000, or some other reasonable sum, represents a breach of the board’s fiduciary duty to town residents,” reads the lawsuit.

The lawsuit alleges the Town Board has failed to consider other offers for more money for the property, and that several Town Board members, including Selmser, have a conflict of interest regarding the sale because they have served on the CAC’s Board of Directors in the past.

Selmser said he was a part of the creation of the CAC, and served on its board before serving as supervisor.

“I helped set it up as a nonprofit,” he said. “Once I became elected, I resigned [as a CAC board member], and I don’t participate in any decision making for CAC. I haven’t in 2018 or 2019.

The lawsuit states the Town Board members have violated their duty to obtain the best possible price for the property.

Abdella’s donation agreement valued the property at $2.2 million and its current assessed market value for taxation purposes is $491,803.

The CAC has been hosting a summer concert series at the park for the last several years and has proposed to build a world class concert venue and community art center at the location, if it can obtain ownership of the property. The $50,000 price is based on the amount Caroga has spent maintaining the property since 2015.

Over the past several years town officials have argued the town cannot market the property to other potential purchasers because of the threat of lawsuit from Abdella.

Abdella filed a notice of claim against the town, the precursor to the eventual lawsuit, shortly after all of the incumbent town officials in favor of selling Sherman’s to the CAC were defeated in the Republican Party primary in June.

Scott Horton defeated Selmser for supervisor by 213 votes. Horton has been a strong proponent of Caroga crafting a long-term lease, possibly as long as 80 years, for a private sector developer for the park. Selmser remains on the November ballot as an independent.

Attorney Robert Abdella, George Abdella’s son and law firm partner, said although his father is not a litigant in Livingston’s lawsuit he is an interested party in the legal action. He said he doubts Livingston has legal standing to file the lawsuit.

“I think he has a right to vote in the town of Caroga in the referendum, but not bring a suit,” Robert Abdella said. “As I read his petition, he’s essentially arguing the town of Caroga is not getting enough money in its sale to the CAC and they haven’t done their due diligence as a fiduciary to maximize the sale price, and our position is, and our contract says, the town of Caroga cannot sell the property. This was one of the main conditions of the donation agreement, was that they don’t sell. My father wanted to see the property maintained for the public.”

Robert Abdella said there is a planned legal conference in his civil lawsuit against the town scheduled for Oct. 30. He said his father will drop the suit if the referendum is approved, but it will go forward if the public voted against the sale.

“If the CAC isn’t going to get it, we’d rather have the property back, and, frankly, if we get the property back we’re going to give it to the CAC for free,” he said.