COMMON COUNCIL OF CITY OF FULTON v. TOWN BOARD OF TOWN OF VOLNEY

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

Matter of COMMON COUNCIL OF CITY OF FULTON, Petitioner, v. TOWN BOARD OF TOWN OF VOLNEY, Respondent.

Decided: April 25, 1997

Before PINE, J.P., and LAWTON, CALLAHAN, DOERR and FALLON, JJ. Grossman, Kinney, Dwyer by James F. Dwyer, East Syracuse, for Petitioner. Melvin and Melvin (Ronald S. Carr, of counsel), Syracuse, for Respondent.

The Common Council of the City of Fulton (City) commenced this original proceeding seeking annexation of approximately 33 acres of land known as the River Glen Square Shopping Center in the Town of Volney (Town).   Pursuant to General Municipal Law § 712, we designated three Referees to hear and report on the issue whether the proposed annexation is in the overall public interest.   We agree with the unanimous conclusion of the Referees that the proposed annexation is in the overall public interest and recommendation that we permit annexation.

 The evidence at the annexation hearing establishes that the territory proposed to be annexed would benefit from the annexation by the guaranteed availability of the City's water and sewer facilities to meet its present needs and requirements (see, Matter of City of Rensselaer v. Town Bd., 169 A.D.2d 936, 937, 564 N.Y.S.2d 836;  Matter of Caruso v. Moss, 161 A.D.2d 1038, 1038-1039, 557 N.Y.S.2d 603;  City of Batavia v. Town of Batavia, 45 A.D.2d 203, 205, 357 N.Y.S.2d 277, lv. denied 35 N.Y.2d 644, 364 N.Y.S.2d 1025, 324 N.E.2d 370;  Matter of City of Saratoga Springs v. Town of Greenfield, 34 A.D.2d 364, 367, 312 N.Y.S.2d 4, lv. denied 28 N.Y.2d 482, 319 N.Y.S.2d 1027, 267 N.E.2d 891).   The evidence also establishes that the City is able to provide better fire and police protection in the annexed area than the Town.   The City's ability to provide enhanced municipal services to the annexed parcel weighs strongly in favor of annexation (see, City of Jamestown v. Town of Ellicott, 185 A.D.2d 627, 586 N.Y.S.2d 46;  Matter of City of Rensselaer v. Town Bd., supra;  Matter of City of Saratoga Springs v. Town of Greenfield, supra ).   Additionally, the testimony at the hearing demonstrates that the City would benefit by receiving $650,000 per year in additional sales tax revenue if the annexation were approved (see, City of Batavia v. Town of Batavia, supra, at 205, 357 N.Y.S.2d 277;  Town Bd. of Town of Brighton v. City Council, 59 A.D.2d 1041, 399 N.Y.S.2d 793;  Matter of City of Saratoga Springs v. Town of Greenfield, supra ).  In comparison, the Town's loss of real property tax revenue, e.g., approximately $13,213.50 for 1995, is minimal.   Finally, the testimony reflects that the property proposed to be annexed has the requisite unity of purpose and facilities with the adjacent City property to constitute a community (see, Matter of Common Council of City of Gloversville v. Town Bd., 32 N.Y.2d 1, 6, 342 N.Y.S.2d 841, 295 N.E.2d 644;  City of Jamestown v. Town of Ellicott, supra ).

The City established that “the benefits of annexation to the city and the territory proposed to be annexed outweigh the detriment to the town” (Matter of City of Rensselaer v. Town Bd., supra, at 937, 564 N.Y.S.2d 836) and thus that the annexation is in the overall public interest.   We therefore grant judgment in favor of the City adjudging that the proposed annexation is in the overall public interest.

Finally, under the circumstances, a special election pursuant to General Municipal Law § 713 is not required (see, City of Batavia v. Town of Batavia, supra, at 206, 357 N.Y.S.2d 277).  (Original Proceeding Pursuant to General Municipal Law § 712.)

Report unanimously confirmed without costs and judgment granted.

MEMORANDUM: