        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

303
OP 12-02204
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND WHALEN, JJ.


IN THE MATTER OF CITY OF FULTON, PETITIONER,

                    V                             MEMORANDUM AND ORDER

TOWN OF GRANBY, RESPONDENT.


BOND, SCHOENECK & KING, PLLC, SYRACUSE (JOHN D. ALLEN OF COUNSEL), FOR
PETITIONER.

SCOTT F. CHATFIELD, MARIETTA, FOR RESPONDENT.


     Proceeding pursuant to General Municipal Law article 17
(initiated in the Appellate Division of the Supreme Court in the
Fourth Judicial Department pursuant to General Municipal Law § 712)
for a determination that a proposed annexation is in the public
interest.

     It is hereby ORDERED that the petition is unanimously granted
without costs and judgment is granted in favor of petitioner as
follows:

          It is ADJUDGED that the proposed annexation is in the
     overall public interest.

     Memorandum: Petitioner, City of Fulton (City), commenced this
original proceeding pursuant to General Municipal Law article 17
seeking to annex approximately 69.5 acres of industrial and vacant
land from respondent, Town of Granby (Town). Pursuant to General
Municipal Law § 712, this Court designated three Referees to hear and
report on the issue whether the proposed annexation is in the overall
public interest. The Referees unanimously concluded that the proposed
annexation is in the overall public interest and recommended that we
grant the City’s petition in its entirety, and we agree with that
recommendation. We therefore confirm the report of the Referees,
grant the petition and grant judgment in favor of petitioner adjudging
that the proposed annexation is in the overall public interest.

     “The municipality seeking an article 17 annexation has the burden
of proving that the annexation is in the overall public interest”
(Matter of City of Utica v Town of Frankfort, 10 NY3d 128, 132; see
General Municipal Law § 712; Matter of Mayor of Vil. of Akron v Town
Bd. of Town of Newstead, 238 AD2d 902, 903). “A reviewing court must
weigh[ ] the benefit or detriment to the annexing municipality, the
territory proposed to be annexed, and the remaining governmental unit
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from which the territory would be taken” (City of Utica, 10 NY3d at
132 [internal quotation marks omitted]; see Matter of Town of Niagara
v City of Niagara Falls, 19 AD3d 1076, 1076-1077, lv denied 5 NY3d
713). “Benefit and detriment are customarily defined in terms of
municipal services such as police and fire protection, health
regulations, sewer and water service, public utilities and public
education” (Matter of Town of Lansing v Village of Lansing, 80 AD2d
942, 942; see Matter of Incorporated Vil. of Ilion v Town Bd. of
Frankfort, 261 AD2d 952, 952). “Another factor to consider is whether
the municipality seeking the annexation and the territory proposed to
be annexed have ‘the requisite unity of purpose and facilities to
constitute a community’ ” (Town of Niagara, 19 AD3d at 1077, quoting
Matter of Common Council of City of Gloversville v Town Bd. of Town of
Johnstown, 32 NY2d 1, 6; see City of Utica, 10 NY3d at 133).

      Here, we conclude that the City met its burden of establishing
that the proposed annexation is in the overall public interest (see
Matter of City of Watertown v Town Bd. of Town of Pamelia, 251 AD2d
1073, 1074; Matter of Common Council of City of Fulton v Town Bd. of
Town of Volney , 238 AD2d 903, 904; City of Batavia v Town of Batavia,
45 AD2d 203, 206, lv denied 35 NY2d 644). There is no question that
the annexation would significantly benefit the City. As the Referees
found, the territory sought to be annexed houses the City’s
multimillion dollar Wastewater Treatment Facility (hereafter,
Facility), which is the “nerve center” of the City’s sewage treatment
system and a “vital component of the City’s municipal utility
infrastructure.” Thus, “by incorporating the system within its
territorial boundaries, the City . . . will be better able to manage,
preserve and protect the system” (City of Watertown, 251 AD2d at
1075). It is further undisputed that the annexation would
significantly reduce the City’s tax liability and, therefore, the
Facility’s operating expenses. Specifically, the annexation would
relieve the City of Town, Town Highway, fire district, school
district, and county real property taxes, which totaled $116,183.46 in
2012.

     The annexation would also benefit the territory itself. The
parties stipulated that the City, not the Town, currently provides
municipal services to the territory, including police and fire
protection, water and sewer service, and maintenance of the access
road leading to the Facility (see Incorporated Vil. of Ilion, 261 AD2d
at 953). The parties further stipulated that the City is “better
equipped than the Town to provide all municipal services to the
[t]erritory,” a factor that “weighs strongly” in favor of the
annexation (see Common Council of City of Fulton, 238 AD2d at 904;
City of Jamestown v Town of Ellicott, 185 AD2d 627, 627, abrogated on
other grounds by City of Utica, 10 NY3d at 134-135, n 1). Among other
things, the record establishes that the City is better able to respond
to a fire, chemical spill, or other emergency at the Facility. The
City has a full-time, paid fire department with two fire stations, one
of which is located within 1.5 miles of the Facility. By contrast,
the Town has an all-volunteer fire department, and its single fire
house is located three miles from the Facility. As for police
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                                                         OP 12-02204

protection, the City maintains a full-time police department while the
Town has no police force (see Matter of City of Amsterdam v Town Bd.
of Town of Amsterdam, 100 AD2d 661, 661, lv denied 62 NY2d 604). City
police officers presently provide police protection to the territory
as special deputy sheriffs. Thus, the record establishes that the
City’s police and fire protection services are superior to those
provided by the Town (see City of Utica, 10 NY3d at 132-133; see also
Incorporated Vil. of Ilion, 261 AD2d at 953; Common Council of City of
Fulton, 238 AD2d at 904; cf. Town of Niagara, 19 AD3d at 1077).

     With respect to the effect of the annexation on the Town and the
region, the parties stipulated that improvement and protection of the
Facility would benefit not only the City, but also much of the Town
and the neighboring Town of Volney. The annexation and the resultant
tax reduction would enable the City to stabilize its Sewer Fund and
the rates it charges to residents and businesses throughout the area,
including within the Town. The parties stipulated that, because
wastewater disposal rates are a key cost that businesses consider in
deciding to locate or expand in the area, the annexation “is
substantially likely to spawn industrial growth and development in the
City and the surrounding area,” thereby providing economic benefits to
the Town and the City.

     Although there is no question that the annexation would result in
a loss of tax revenue to the Town and, consequently, the possibility
of increased taxes for its residents, we have previously concluded
that “such is the inevitable result of any annexation and does not
constitute, in and of itself, sufficient detriment to defeat the
application” (City of Batavia, 45 AD2d at 206; see Matter of Town of
Plattsburgh v Town of Saranac, 274 AD2d 852, 854, lv denied 95 NY2d
768). In any event, the Town agreed that the increased tax burden on
its residents would be “minimal,” with a projected increase of only
about 7.5 cents per $1,000 of assessed valuation. The Town further
agreed that “[t]he City’s tax savings of approximately $116,183.46 per
year far outweigh the minimal loss in tax revenue to the Town, Town
Highway Department, and Granby Center Fire District, combined, of
approximately $12,983.41 per year” (see Incorporated Vil. of Ilion,
261 AD2d at 953; City of Watertown, 251 AD2d at 1074; Common Council
of City of Fulton, 238 AD2d at 904; City of Amsterdam, 100 AD2d at
661-662).

     Finally, we agree with the Referees that the territory and the
City have the requisite unity of purpose and facilities to constitute
a community (see City of Utica, 10 NY3d at 133; Incorporated Vil. of
Ilion, 261 AD2d at 953; City of Jamestown, 185 AD2d at 627-628). As
noted by the Referees, the City already provides all municipal
services to the territory, the Facility located within the territory
is “a vital component” of the City’s municipal sewage treatment
system, and the character and use of the territory is consistent with
the character and use of the adjacent parts of the City. The
remainder of the property to be annexed consists of vacant land that
could be developed for recreational purposes, which is harmonious and
consistent with the use of the City’s land directly across the river
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from the territory, including Indian Point and Pathfinder Trail.




Entered:   May 9, 2014                          Frances E. Cafarell
                                                Clerk of the Court
