                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: January 22, 2015                     516011
________________________________

In the Matter of CITY OF
   GLOVERSVILLE et al.,
                    Petitioners,
      v                                       MEMORANDUM AND JUDGMENT

TOWN OF JOHNSTOWN,
                    Respondent.
________________________________


Calendar Date:    November 17, 2014

Before:    Peters, P.J., Rose, Egan Jr. and Lynch, JJ.

                               __________


      Anthony Casale, City Attorney, Gloversville, for City of
Gloversville, petitioner.

      Wood & Seward, LLP, Gloversville (Benjamin C. McGuire of
counsel), for Recreational Realty, Inc. and another, petitioners.

      Miller, Mannix, Schachner & Hafner, LLC, Glens Falls (Cathi
L. Radner of counsel), for respondent.

                               __________


Rose, J.

      Proceeding initiated in this Court pursuant to General
Municipal Law § 712 to determine whether the proposed annexation
of property now located in the Town of Johnstown to the City of
Gloversville is in the overall public interest.

      Petitioners Recreational Realty, Inc. and Stephen Mauro,
owners of 16.6 acres of unimproved real property located in the
Town of Johnstown, Fulton County, requested in 2012 that the
property be annexed by petitioner City of Gloversville. After a
joint public hearing, respondent's Town Board voted to deny the
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request while the City's Common Council voted in favor of
annexation. The City thereafter commenced this special
proceeding pursuant to General Municipal Law § 712 seeking a
judgment that annexation was in the overall public interest, and
the owners of the property were permitted to intervene (see
General Municipal Law § 712 [4]). We then designated a panel of
three Referees to hear and report on the proposed annexation (see
General Municipal Law § 712 [6]). Following a trial, the
Referees visited the property, viewed the surrounding area and
issued a report unanimously recommending annexation. Petitioners
now move to confirm the report, and respondent cross-moves to
reject it.

      A municipality seeking annexation pursuant to General
Municipal Law article 17 "has the burden of proving that
annexation is in the overall public interest" (Matter of City of
Utica v Town of Frankfort, 10 NY3d 128, 132 [2008]; see NY Const,
art IX, § 1 [d]; General Municipal Law § 712 [10]). Factors to
be considered include "the benefit or detriment to the annexing
municipality, the territory proposed to be annexed, and the
remaining governmental unit from which the territory would be
taken" (Matter of City of Utica v Town of Frankfort, 10 NY3d at
132 [internal quotation marks and citations omitted]). "'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'"
(id., at 132-133, quoting Matter of Town of Lansing v Village of
Lansing, 80 AD2d 942, 942 [1981]). "Another factor entering into
the balance is whether the annexing municipality and the
territory proposed to be annexed have the requisite unity of
purpose and facilities to constitute a community" (Matter of City
of Utica v Town of Frankfort, 10 NY3d at 133 [internal quotation
marks and citations omitted]; see Matter of Common Council of
City of Gloversville v Town Bd. of Town of Johnstown, 32 NY2d 1,
6 [1973]).

      Here, petitioners established that the lack of municipal
water and sewer services in the Town are a major impediment to
the development of the property. Mauro testified that he has
marketed the property for three years, but potential developers
are not interested in it because it lacks access to these
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services. The services would, however, be available if the
property were to be annexed to the City. Mauro and Recreational
Realty also own a 12-acre parcel located within the City adjacent
to the property. The combination of the owners' two parcels into
a single parcel of nearly 30 acres would allow for multiple
projects to be developed on the site. The City's mayor testified
that the parcel is in a location where commercial development has
already occurred within the City and where the City would like to
continue such development. The mayor also testified that he has
been in communication with developers who are interested in the
general area, but only if public water and sewer services are
available for their buildings. According to the mayor, the City
is in need of new revenue sources and has limited vacant land of
similar size available. Although the Town claims that the
annexation is premature absent a specific proposal for
development, the evidence reveals that no such proposal is likely
without the ability to provide municipal sewer and water
services.

      The City also established that it provides professional
fire and police protection that is better trained and more
readily available than the emergency protection services
available in the Town. The City bears the expense of full-time,
fully-equipped police and fire departments covering a smaller
geographic area, while the Town relies on the County Sheriff and
volunteer fire departments. As a result, the City's fire
insurance rating is considerably better than that of the Town.
Further, any development that occurs in the City will generate
more tax revenue to defray the burden on the City's taxpayers of
the expense of maintaining professional police and fire
departments, based on the City's higher tax rate of $21.41 per
thousand. For its part, the Town will lose only the minimal
annual tax revenue of $51.06, based upon its 2013 tax rate of
$1.36 per thousand. Although the Town argues against annexation
based on the potential loss of taxes should the parcel be
developed, "ordinarily expected adverse tax consequence[s] . . .
[are] generally insufficient to defeat an annexation which is
otherwise in the over-all public interest" (Matter of Town of
Plattsburgh v Town of Saranac, 274 AD2d 852, 854 [2000], lv
denied 95 NY2d 768 [2000]; see Matter of City of Rensselaer v
Town Bd. of Town of N. Greenbush, 169 AD2d 936, 937 [1991]).
                              -4-                  516011

Moreover, increased tax revenue generated by development of the
parcel in the City will "indirectly benefit the [T]own by
increasing the tax base for [the] County" (Matter of City of
Rensselaer v Town Bd. of Town of N. Greenbush, 169 AD2d at 937).

      In our view, any detriment to the Town is far outweighed by
the benefits of annexation to the City based on the City's
municipal water and sewer services, as well as its professional,
higher-rated emergency services and the resulting ability to
develop the combined parcel in the same manner and with the same
services and facilities. Accordingly, we are in agreement with
the unanimous conclusion of the Referees that annexation would be
in the overall public interest (see Matter of Village of Hamilton
v Town of Madison, 98 AD3d 1195, 1195-1196 [2012]; Matter of City
of Rensselaer v Town Bd. of Town of N. Greenbush, 169 AD2d at
937; Matter of Caruso v Moss, 161 AD2d 1038, 1039 [1990]).

     Peters, P.J., Egan Jr. and Lynch, JJ., concur.



      ADJUDGED that the motion is granted and cross motion
denied, without costs, Referees' report confirmed and it is
adjudged that the proposed annexation is in the overall public
interest.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
