I Squared R Element Company, Inc., Intervenor, v. TOWN BOARD OF TOWN OF NEWSTEAD

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of MAYOR and Village Board of Trustees of Village of Akron, Petitioners, I Squared R Element Company, Inc., Intervenor, v. TOWN BOARD OF TOWN OF NEWSTEAD, Respondent.

Decided: April 25, 1997

Before PINE, J.P., and LAWTON, CALLAHAN, DOERR and FALLON, JJ. Thomas I. McEluein, Jr., Buffalo, for Petitioner-Village of Akron. Duke, Holzman, Yaeger and Photiadis, L.L.P. by Gregory Photiadis, Buffalo, for Intervenor-I Squared R. Element Co., Inc. John P. Lane by William Murry, Williamsville, for Respondent-Twn. of Newstead.

Petitioners contend that the proposed annexation by the Village of Akron (Village) of real property owned by the Erie County Industrial Development Agency and leased to I Squared R Element Company, Inc. (intervenor), “is in the over-all public interest” (General Municipal Law § 712[1]).   The property adjoins the Village and is located in the Town of Newstead;  defendant, Town Board of the Town of Newstead, contends that the proposed annexation is not in the overall public interest.   Following a hearing, Referees appointed by this Court issued a report finding that the proposed annexation is in the overall public interest.   We agree and grant judgment in favor of petitioners accordingly.

 The determination whether an annexation is in the overall public interest is predicated upon a weighing of the “benefit or detriment * * * to the remaining governmental units from which the territory would be taken” (Matter of Board of Trustees v. Town of Ramapo, 171 A.D.2d 861, 862, 567 N.Y.S.2d 791).   The burden of proving that the annexation is in the overall public interest is on the municipality seeking annexation (see, Matter of Board of Trustees v. Town of Ramapo, supra, at 862, 567 N.Y.S.2d 791).  “ ‘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’ ” (Common Council of City of Middletown v. Town Bd., 143 A.D.2d 215, 216, 532 N.Y.S.2d 17, quoting Matter of Town of Lansing v. Village of Lansing, 80 A.D.2d 942, 438 N.Y.S.2d 29;  see, Matter of Village of Elmsford v. Town of Greenburgh, 164 A.D.2d 914, 915-916, 559 N.Y.S.2d 750).

 The evidence introduced at the hearing establishes that there are environmental and economic benefits that will result from the proposed annexation.   Annexation will allow intervenor to connect its manufacturing operation to the Village sewer system and eliminate the need for the sand filter system that had malfunctioned on several occasions and was leaking into a local stream.   Additionally, intervenor's local municipal tax liability will increase by $4,000 as a result of the annexation.   Although respondent will lose $2,000 in sales tax revenue, that loss is minimal (see, Matter of Caruso v. Moss, 161 A.D.2d 1038, 1039, 557 N.Y.S.2d 603).   Finally, there is evidence that allowing intervenor to connect to the Village sewer system will provide increased employment opportunities because intervenor will have the potential to expand, unencumbered by waste disposal problems (see, City of Jamestown v. Town of Ellicott, 185 A.D.2d 627, 586 N.Y.S.2d 46).   Intervenor eliminated the possible detriment of increased electricity bills for Village residents by agreeing that it will not seek to obtain electricity from the Village if local residents are affected.   In any event, there is evidence that, under a new State system beginning in 1997, the Village will be able to purchase power at a lower rate, allowing the Village to make a profit by supplying intervenor with power, while providing intervenor with less expensive electricity.

 Finally, under the circumstances, a special election pursuant to General Municipal Law § 713 is not required (see, City of Batavia v. Town of Batavia, 45 A.D.2d 203, 206, 357 N.Y.S.2d 277, lv. denied 35 N.Y.2d 644, 364 N.Y.S.2d 1025, 324 N.E.2d 370).  (Original Proceeding Pursuant to General Municipal Law § 712.)

Report unanimously confirmed with costs and judgment granted.