T-Monroe Memorandum of Law

7/25/2019 T-Monroe Memorandum of Law

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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ORANGE

NINTH JUDICIAL DISTRICT ENVIRONMENTAL CLAIMS PART

- - - - - - - - - - - - - - - - - - - - - - - - - X

PRESERVE HUDSON VALLEY, et al.,

Plaintiff-Petitioners,

Ind. No.: 2015-3215For a Judgment Pursuant to Article 78 of the Civil

Practice Law and Rules

- against - Proceeding No. 1

TOWN BOARD OF THE TOWN OF MONROE,

et al. Hon. Francesca E. Connolly, J.S.C.

Respondents-Respondents.

- - - - - - - - - - - - - - - - - - - - - - - XVILLAGE OF SOUTH BLOOMING GROVE, et

al.,

For a Judgment Pursuant to Article 78 of the Civil

Practice Law and Rules

Ind. No. 2015-7410

Proceeding No. 2

- against -

VILLAGE OF KIRYAS JOEL BOARD OF

TRUSTEES, et al.

Respondents

- - - - - - - - - - - - - - - - - - - - - - - X

MEMORANDUM OF LAW OF THE TOWN OF

MONROE SUBMITTED IN OPPOSITION TO

THE ARTICLE 78PETITIONS AND TOSUPPORT THE MOTION FOR SUMMARY

JUDGMENT DISMISSING THE CLAIMS AT

LAW


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TABLE OF CONTENTS

Preliminary Statement ....................................................................................... 4

Statement of Facts .............................................................................................. 6

Point I: The petitioners lack standing to bring this specialproceeding. ........................................................................................................... 7

The municipal challengers are not within the zone of interest ofGML 705(1)(e) .................................................................................................. 7

The municipal challengers have neither demonstrated nor pleadedinjury in fact .................................................................................................. 10

The citizen challengers are not within the zone of interest of GML705(1)(e) ......................................................................................................... 12

The citizen challengers have neither demonstrated nor pleadedinjury in fact .................................................................................................. 12

Point II: The town boards decision regarding the 164-acreannexation petition complies with the requirements of SEQRA andis not arbitrary and capricious. ......................................................................... 13

The town complied with the requirements of SEQRA ................................. 13

Point III: The Declaratory Judgment Causes of Action Must BeDismissed ........................................................................................................... 27

Judicial review of legislative acts is limited................................................. 27

Point IV: The alleged Establishment Clause Violation Claims HaveNo Merit. ............................................................................................................ 31

Point V: The Town of Monroe Ethics Code Has Not Been Violated. ............... 36

Point VI: The 164-acre petition does not violate the priorjurisdiction rule. ................................................................................................ 38

Point VII: The 164-acre annexation petition was not filed to avoid

existing zoning restrictions. .............................................................................. 42

Point VIII: The Purported Citizen Taxpayer Claims Must BeDismissed. .......................................................................................................... 44

The conditions precedent to bringing a citizen taxpayer claim [thepleading of requisite standing and the filing and service of a bond]have not been satisfied. ................................................................................. 44


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The citizen challengers do not allege fraud or corruption and wasteas required by General Municipal Law Section 51. ..................................... 45

Conclusion .......................................................................................................... 48


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PRELIMINARY STATEMENT

On or about December 27, 2013, Town of Monroe landowners petitioned

to annex 507 acres of land from the unincorporated portion of the Town into

the Village of Kiryas Joel (the Village). Thereafter, on August 20, 2014, cer-

tain Town landowners separately petitioned to annex a 164-acre subset of the

same land into the Village. During the General Municipal Law Article 17 re-

view, the Town Board and Village Board both found the proposed 164-acre

annexation to be in the overall public interest, but disagreed whether the

507-acre annexation is in the overall public interest. A special proceeding is

pending in the Appellate Division, Second Department pursuant to General

Municipal Law 12, where a final determination of overall public interest

will be made regarding the 507-acre annexation petition.

Two separate Article 78 proceedings are now before the court. In one pro-

ceeding, a group of municipal challengers seek to set aside the joint finding of

overall public interest issued in the 164-acre annexation primarily upon the

ground that the SEQRA review of the annexations potential adverse environ-

mental impacts was flawed (the Municipal Petition). Because SEQRA re-

view covered both the 507-acre annexation petition and the 164-acre subset

petition, the Municipal Petition also seeks to reverse the Village Boards de-

termination of overall public interest as to the 507-acre annexation.

The challengers in the second proceeding (a group of citizen challengers

which includes several individuals and an unincorporated association) seek


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the same relief, but add claims at law in the nature of a declaratory judgment

seeking to reverse all of the municipal determinations made in both matters

on numerous grounds, including violation of the Establishment Clause of the

United States Constitution, violation of the Town of Monroe Ethics Code,

andas purported citizen-taxpayersunder authority of Section 51 of the

General Municipal Law] (the Citizen Petition).

The Town of Monroe opposes all of the relief sought in the Article 78 pro-

ceeding and moves for summary judgment dismissing the claims at law as-

serted in the citizen petition. This memorandum addresses the law support-

ing the Towns position and arguments .


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STATEMENT OF FACTS

A certified transcript of record filed jointly by the town and village boards

has been filed with the court. An answer and affidavit of the town supervisor

have also been submitted. A detailed procedural outline has been provided by

others and will not be repeated here. All relevant facts are before the court.


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POINT I:THE PETITIONERS LACK STANDING TO BRING THIS SPECIAL PROCEEDING.

The contour of New Yorks SEQRA standing jurisprudence is well set out

in Judge Kayes 1991 majority opinion in Society of Plastics v. Suffolk

County.1In drawing upon standing reasoning from both federal and state

sources, the PlasticsCourt crystallized the two indispensable conditions for a

challenger to establish his standing:

First, the challenger must fall within the zone of interest in-

tended to be protected by the legislative or common law scheme ap-

plicable to the matter; and

Second, the challenger must demonstrate an injury in fact, a con-

cept flowing from the ancient maxim rooted in the law of public

nuisance that one must suffer direct harm, [an] injury that is in

some way different from that of the public at large2to establish

his claim.

Failure to plead either element requires dismissal based on lack of stand-

ing.

The municipal challengers are not within the zone of interest of GML 705(1)(e)

Because the petitioners must establish standing, we must look to both the

1Society of Plastics v. Suffolk County, 77 N.Y.2d 761 (1991). See, most recently, Sierra Club v Vil. of

Painted Post, 26 N.Y.3d 301 (2015).

2See, Prosser and Keaton on Torts, 5thed. Nuisance90 notes: 39, 40 and related text. Seealso, Burns Jackson Miller, Etc. v. Linder, 59 N.Y. 2d 314 (1983).


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municipal petition and the citizen petition to determine if standing has been

properly pleaded. Nowhere in the municipal petition is zone of interest men-

tioned, let alone demonstrated. The municipal petitioners merely claim that

annexation will adversely affect their various communities. Such alleged im-

pacts are not within the zone of interest of the General Municipal Law annex-

ation provisions.

GML 705(1)(e) limits the reach of annexation review3to that annexa-

tions impact upon:

(1)the territory proposed to be annexed, or

(2)the local government or governments to which the territory is pro-posed to be annexed, or

(3)the remaining area of the local government or governments inwhich such territory is situated, or

(4)any school district, fire district4or other district corporation, publicbenefit corporation, fire protection district, fire alarm district ortown or county5improvement district, situated wholly or partly inthe territory proposed to be annexed.

Potential impacts on adjoining municipalities are not part of the legisla-

tive scheme applicable to the matter. None of the adjoining municipalities fall

3See, City Council of City of Watervliet v Town Bd. of Town of Colonie, 3 N.Y.3d 508(2004). The scope of review is, Watervliettells us, far broader where a proposed annexationis coupled with a specific development plan. There SEQRA review must address impacts on

surrounding communities. That is not, however, the case here.4While the Monroe Joint Fire District might arguably fall within the zone of interest, it

has failed to plead such coverage. Moreover, as demonstrated below, the fire district has notdemonstrated any injury in fact different than that suffered by the public at large.

5A county sewer districts inclusion within the zone of interest test is also theoreticallypossible but has not been pleaded. Moreover, as with the fire district, no unique injury in facthas been shown. [see below].


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within the zone of interest fixed by GML 705.

This is particularly true because the annexation proposals here are not

coupled with a specific development proposal for the territory sought to be an-

nexed. As noted alreadyand as the Court of Appeals instructed in City

Council of City of Watervliet v Town Bd. of Town of Colonie,6the scope of

SEQRA review required for a proposed annexation varies with the nature of

the application itself. Where the annexation proposal is not accompanied by a

specific project plan (as is the case here), the SEQRA analysis need address

only the annexation itself and its effects.7Where the annexation proposal

is, however, linked to an accompanying formal project plan, environmental

review must be more extensive and must address the specific use of the

property in evaluating the related environmental effects.8

Because SEQRA review of these annexation petitions not accompanied by

a specific project plan need address only that annexation and its effects, po-

tential extraterritorial environmental impacts are not part of the equation

and those claiming to be extraterritorially affected are not within the zone of

interest of the legislative scheme governing annexations.

6City Council of City of Watervliet v Town Bd. of Town of Colonie, 3 N.Y.3d 508 (2004).

7City Council of City of Watervliet v Town Bd. of Town of Colonie, 3 N.Y.3d 508, 520(2004).



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The municipal challengers have neither demonstrated nor pleaded injury in fact

The municipal challengers set forth their claims of injury within para-

graphs 16 through 27 of the municipal petition. Each of those paragraphs

claims extraterritorial injuries. And even the countys claims of injury (see

paragraph 24)while including claimed injuries to county roads and a county

park within the annexation territoryare injuries that flow from develop-

ment hypothesized by the countys lawyers but not currently proposed by an-

yone.

While future development impacts (as opposed to annexation impacts)

will fall within the scope of future project-specific SEQRA review (at which

time the county may be able to establish a unique injury in fact), the injuries

projected in paragraph 24 are not injuries flowing from the annexation itself.9

The same is true of the fire district claim, in paragraph 26, that it will

suffer injuries from the increased development the annexation will author-

ize. While the annexation might lead toincreased development, that is not to

say that approval of the annexation will authorizeincreased development.

And, because no specific development proposal accompanied either annexa-

tion petition, SEQRA review need not address increased developmentim-

pacts; it need only address annexationimpacts. The same reasoning demon-

strates that the injuries claimed are not injuries flowing from the annexation

but are rather hypothesized injuries that mightwhen future development

9City Council of City of Watervliet v Town Bd. of Town of Colonie , 3 N.Y.3d 508 (2004).


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occursresult.

Moreover, a municipalitys SEQRA standing is not gauged in the same

way as that of an individual for a:

municipality neither breathes foul air, nor hears loudnoises, nor waits in traffic. As a result, since a municipalityis limited to asserting rights that are its own [citation omit-ted] [it] is not permitted to assert the collective individualrights of its residents [citation omitted]

To say that a municipality is not presumed to suffer envi-ronmental injury in the same way as an individual, however,does not mean that a municipality can never suffer cogniza-ble environmental injury. We have held that villages may

have standing to sue in appropriate cases (Incorporated Vil.of Northport v. Town of Huntington, supra at 243, 604N.Y.S.2d 587), where they have a demonstrated interest inthe potential environmental impacts of the project [citationomitted]. [As a result], we have found a municipality to havestanding where a specific municipal interest was articulated[citation omitted].10

Thus, even had the municipal challengers asserted injuries flowing from

the annexation rather than from potential future development, they would

still need to assert an injury of its own distinct from those that might be suf-

fered by its citizens. This the municipal challengers have not done.

Further, given the geographic scope of jurisdiction of the municipal chal-

lengers, the extraterritorial injuries claimed will be sufferedif suffered at

allby the community at large: a very large community indeed.

No unique injury in fact has been pleased or demonstrated.

10Vil. of Chestnut Ridge v Town of Ramapo, 45 AD3d 74, 91 (2d Dept. 2007).


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The citizen challengers are not within the zone of interest of GML 705(1)(e)

As with the municipal challengers, the citizen challengers must establish

their standing. And, as with the municipal petition, nowhere in the citizen

challenger petition is zone of interest mentioned or demonstrated. Instead,

the citizen petitioners merely claim that annexation will adversely them.

Such alleged impacts are not within the zone of interest of the General Mu-

nicipal Law annexation provisions.

The citizen challengers have neither demonstrated nor pleaded injury in fact

In conclusory fashion, the citizen challengers allege extraterritorial im-

pacts and hypothetical development-created injuries they claim, without fac-

tual support, to be unique. Importantly, none of the citizen challengers live

within the annexation territory. These claimed injuries are ones shared by

the community at large and are not injuries uniquely suffered by these chal-

lengers. These injuries are not, therefore, the type of injuries in fact neces-

sary to establish standing.

Because the citizen challengers do not fall within the zone of interest

fixed by GML 705 and because they have not alleged cognizable injuries in

fact in some way different from those that might be suffered by the public at

large, they lack standing to maintain this proceeding.


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P

OINT

II:

T

HE TOWN BOARD

S DECISION REGARDING THE

164

ACRE ANNEXATION

PETITION COMPLIES WITH THE REQUIREMENTS OF SEQRAAND IS NOT ARBITRARY

AND CAPRICIOUS.

Petitioners raise a plethora of arguments and objections regarding the

Villages and Towns findings issued under the State Environmental Quality

Review Act (SEQRA). The vast majority address the validity and propriety of

the Final Generic Environmental Impact Statement (FGEIS), prepared by

the Village as Lead Agency under SEQRA. The Town, as an involved agency,

participated in the coordinated environmental review undertaken by the Vil-

lage. However, it did not prepare the FGEIS or undertake the studies and anal-

ysis that were the basis for the FGEIS. Rather, by virtue of the Town's juris-

dictional authority over the annexation petition under Article 17 of the General

Municipal Law (GML), it is an involved agencyunder SEQRA.11

Consequently, the Town is not addressing Petitioners arguments relat-

ing to the validity of the FGEIS or whether the underlying SEQRA review was

defective because these arguments are being addressed in detail by the Village

and other individual Respondents. The Towns response is limited to Petition-

ers claims that the Towns Environmental Findings Statement adopted on

September 8, 2015 (the Town EFS) is defective and should be invalidated.

The town complied with the requirements of SEQRA

The SEQRA regulations require involved agencies to make a written

116 NYCRR 617.2[s].


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findings statement either prior to or simultaneously with any final decision

to undertake, fund, approve or disapprove an action that has been the subject

of a final EIS.12Here, the action that was the subject of the Town EFS was

the Town Boards consideration of the 164-acre and 507-acre annexation peti-

tions. The issue the Town Board needed to consider under SEQRA was whether

the environmental impacts resulting from the proposed annexations had been

properly mitigated during the SEQRA review. When conducting its SEQRA

review, the Town was required to use the record before the Village as lead

agency in making its environmental findings and could not consider infor-

mation outside that record or it would vitiate the efficiency and coordination

goals of SEQRA.13

Under GML 714, the Town maintains jurisdiction regarding the annex-

ation determinations as they concern the property located within the Town.

Therefore, although the Town must coordinate its environmental review with

the lead agency, its SEQRA findings may differ from Villages SEQRA find-

ings.14Nonetheless, the Town must rely upon the [final GEIS] as the basis

for [its] review of the environmental impacts that [it is] required to consider in

126 NYCRR 617.11[c].

13See e.g.6 NYCRR 617.6[b][3].

14Matter of AlbanyGreene Sanitation v. Town of New Baltimore Zoning Bd. of Appeals,263 A.D.2d 644, 646, 692 N.Y.S.2d 831 [1999], lv. Denied,94 N.Y.2d 752, 700 N.Y.S.2d 425,722 N.E.2d 505 (1999).


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connection with...the annexation petition.15The Town, as an involved agency,

was required to rely upon and consider the FGEIS and SEQRA Environmental

Findings Statement prepared by the Village as lead agency.16The question this

Court must answer is whether the Town EFS satisfied the requirements under

SEQRA regarding the 164-acre annexation petition.17

The test of SEQRA compliance is whether the approving agency has

taken a hard look at the relevant areas of environmental concern18and made

a reasoned elaboration of the basis for its determination of whether such en-

vironmental impacts are significant.19Nothing in the law requires an agency

to reach a particular result on any issue, or permits the courts to second guess

15Troy Sand & Gravel Co., Inc. v. Town of Nassau, 125 A.D.3d 1170, 1173, 4 N.Y.S.3d613,616 (2d Dept 2015), quoting Matter of Guido v. Town of Ulster Town Bd.,74 A.D.3d1536, 1537, 902 N.Y.S.2d 710 (3d Dept. 2010), citing6 NYCRR 617.6[b][3][iii] ).

16Village of Pelham v. City of Mount Vernon Indus. Dev. Agency, 302 A.D.2d 399, 400, 755N.Y.S.2d 91, 92 (2d Dept 2003)

17On September 8, 2015 the Town Board issued a Resolution finding that the 507-acre an-nexation petition was not in the overall public interest and that that the 164-acre petitionwas in the overall public interest as required pursuant to General Municipal Law 711 (theTown GML 711 Resolution). (Record, 1332513348). Petitioners have not challenged theTown GML 711 Resolution in the proceedings presently before the Court.

18Environmental Defense Fund v. Flacke,96 A.D.2d 862, 465 N.Y.S.2d 759, 761 (2d Dept1983).

19New York City Coalition to End Lead Poisoning, Inc. v. Vallone, 100 N.Y.2d 337, 348,763 N.Y.S.2d 530, 535 (2003);Aldrich v. Pattison, 107 A.D.2d 258, 265, 486 N.Y.S.2d 23, 28(2d Dept 1985); Coalition Against Lincoln West, Inc. v. City of New York, 94 A.D.2d 483,491, 465 N.Y.S.2d 170, 176 (1stDept 1983),affd 60 N.Y.2d 805, 469 N.Y.S.2d 689 (1983);H.O.M.E.S. v. New York State Urban Development Corp., 69 A.D.2d 222, 232, 418 N.Y.S.2d827, 832 (4thDept 1979).


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the agencys choice, which can be annulled only if arbitrary, capricious or un-

supported by substantial evidence.20

Agencies have considerable latitude in evaluating environmental effects

and a court may not substitute its judgment for that of the agency.21It is not

the role of the court to second guess a determination under SEQRA by weigh-

ing the desirability of proposed actions or choosing among alternatives.22 It is

well settled that a courts judgment may not be substituted for that of the lead

agency. It is equally well settled that agencies are given considerable latitude

in exercising discretion for substantive environmental decisions.23

Judicial review of SEQRA determinations is governed by a rule of reason

20City of Rye v. Korff, 249 A.D.2d 470, 671 N.Y.S.2d 526, 528 (2d Dept 1998), lv. to app.denied, 92 N.Y.2d 808, 678 N.Y.S.2d 593 (1998). Due to the absence of a specific judicial re-view provision in SEQRA, judicial review of SEQRA determinations is guided by the stand-

ards applicable to review of administrative decisions under Article 78 of the Civil PracticeLaw and Rules. Jackson v. New York State Urban Development Corp., 67 N.Y.2d 400, 503N.Y.S.2d 298 (1986). Pursuant to this standard, the lead agencys determination will be up-held where the decision was the product of lawful procedure, was not subject to an error oflaw, and holds a rational basis supported by substantial evidence on the record as a whole.N.Y. CPLR 7803(3); see Environmental Defense Fund v. Flacke, 96 A.D.2d 862, 465N.Y.S.2d 759 (2d Dept 1983)(Commissioners decision to approve a permit application forthe reconversion of a plant from the burning of oil to coal must be upheld where the proce-dural requirements of SEQRA were adhered to and the decision was supported by substan-tial evidence.)

21Apkan v. Koch, 75 N.Y.2d 561, 570, 555 N.Y.S.2d 16, 20 (1990); Environmental DefenseFund v. Flacke, 96 A.D.2d 862, 465 N.Y.S.2d 759 (2d Dept 1983) .

22Riverkeeper, Inc. v. Planning Bd. of the Town of Southeast, 10 N.Y.3d 741, 853 N.Y.S.2d284 (2008); Village of Westbury v. Department of Transportation of the State of New York,75 N.Y.2d 62, 66, 550 N.Y.S.2d 604, 605 (1989).

23Apkan v. Koch, Id., 16, 20 (1990); Eadie v. Town Board of the Town of North Greenbush,7 N.Y.3d 306, 821 N.Y.S.2d 142 (2006); Orchards Associates v. Planning Bd. of the Town ofNorth Salem, 114 A.D.2d 850, 852, 494 N.Y.S.2d 760, 761 (2d Dept 1985) (upholding theplanning boards findings pursuant to SEQRA because they were supported by the record).


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and reasonable doubts must be resolved in favor of the agencys findings and

decisions.24The scope of review for substantive environmental determinations

made pursuant to SEQRA is very limited and these substantive determina-

tions are entitled to great deference.25 In addition, a determination on the en-

vironmental consequences of a project may only be annulled if that determina-

tion is irrational, arbitrary and capricious or unsupported by substantial evi-

dence.26

When considered under the required deferential standard of review, the

Court should find that the Town Board took the requisite hard look at the

environmental impacts associated with 164-acre annexation, and in a proper

exercise of discretion adopted the Town EFS which contained reasonable de-

terminations supported by the record. The determination, having been

adopted by the local officials familiar with the prevailing conditions in the

Town and charged with the responsibility of reviewing the environmental im-

pacts of the proposed annexation, are entitled to deference and should not be

annulled or vacated.

Of particular significance is that the depth of SEQRA review required

24Town of Henrietta v. Department of Environmental Conservation of the State of NewYork, 76 A.D.2d 215, 224, 430 N.Y.S.2d 440, 447-448 (4thDept 1980)(upholding the imposi-tion of certain conditions which were supported by the record).

25Orchards Associates v. Planning Bd. of the Town of North Salem, 114 A.D.2d 850, 852,494 N.Y.S.2d 760, 761 (2d Dept 1985).

26Id.


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for a proposed annexation petition varies with the nature of the annexation

petition itself. Where the annexation proposal is not (as here) accompanied by

a specific project plan, the SEQRA analysis need address no more than the

annexation itself and its effects.27Where the annexation proposal is linked to

an accompanying formal project plan, environmental review must be more ex-

tensive and must address the specific use of the property in evaluating the

related environmental effects.28Here, there was no site specific proposal in

conjunction with either of the annexation petitions. Thus, the level of SEQRA

review required was limited in scope to the underlying impacts from the an-

nexation as opposed to the possible development of the properties within the

properties proposed to be annexed. In either event, the level of environmental

review required is vested to the sound discretion of the lead agency and, absent

arbitrary and capricious decision-making, is not to be second-guessed by the

Court.29

Here, as set forth in the Town EFS, the Town Board determined that

the level of review performed by the Lead Agency was sufficient to make a

determination under SEQRA regarding the 164-acre annexation petition, but


28Id.

29See, Pittsford Plaza Associates v. Spiegel, 66 N.Y.2d 717 (1985);


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that it was not sufficient to make a determination regarding the 507-acre pe-

tition. (Record, 013345013346; 13315). Petitioners argue that the Town EFS

was arbitrary and capricious because the Towns consultant had determined

that the FGEIS was insufficient regarding both the 164-acre and 507-acre pe-

titions and that a supplemental FGEIS was required. (Municipal Petition,

4676; Citizen Petition, 245278, 320480). Petitioners further argue

the Town Board deferral of consideration of impacts relating to site specific

projects constituted illegal segmentation and that the Town made no reasoned

elaboration of the bases for its determination. (Municipal Petitioners Memo-

randum of Law in Support at pp. 2931, Citizens Petition, 456476). Spe-

cifically, Petitioners contend a supplemental GEIS had to consider impacts

from and implement meaningful mitigation measures foreseeable and contem-

plated build-out scenarios. (Citizens Petition, 340).

As set forth in the Town EFS, the Town Board concluded that the

SEQRA review carried out by the Village Board as lead agency was inadequate

to make a determination that the 507-acre annexation was in the overall public

interest. (Record 01335). However, the Town EFS also concluded that the

FGEIS properly addressed the environmental impacts regarding the 164-acre

annexation petition and that any potential impacts had been minimized to the

greatest extent possible regarding the 164 acre annexation. (Record, 0133124).

Specifically, the Town Board determined that:

Consistent with the social, economic and other essential con-siderations, from among the reasonable alternatives


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thereto, the 163.8-acre annexation is approved as one whichminimizes or avoids adverse environmental effects to themaximum extent practicable; including the effects disclosedthe environmental impact statement; and

Consistent with the social, economic and other essential con-siderations, to the maximum extent practicable, adverse en-vironmental effects revealed in the environmental impactstatement process will be minimized or avoided by incorpo-rating conditions to the decision those mitigative measureswhich were identified as practicable.

Consistent with the social, economic and other essential con-siderations, from among reasonable alternatives thereto,the 507.4-acre annexation cannot be approved as one whichminimizes or avoids adverse environmental effects to the

maximum extent practicable.(Record, 013324).

Therefore (despite the recommendation of the Towns consultant), all but

one member of the Town Board concluded that the SEQRA review was ade-

quate for both the Town Board and the Village Board to determine overall

public interest as to the 164-acre annexation petition.

As stated in more detail in the Affidavit of Harvey Doles, III, the Super-

visor of the Town of Monroe, dated January 22, 2016 (Doles Affid.), when one

examines the 164-acre annexation territory, the Town Boards conclusions are

quite rational and supported by the Record. As shown in the aerial photograph

which highlights the 164-acre annexation territory, this area has no physical

connection to the Town and is at the far end of the Village, cordoned off from

the remainder of the Town by odd, irregular, baroque boundaries, creating a

series of unfortunate fingers extending from the Town of Woodbury into the

Village and has no business being part of the Town. (Doles Affid., para 67).


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Road maintenance, snow removal and general oversight are nearly impossi-

ble, requiring highway crews to travel great distances in and out of the series

of fingers to deliver Town services. Indeed, so difficult is the task of roadway

maintenance that, as a solution, the Village and Town have, for many years,

agreed to have the Town provide maintenance and snow removal throughout

the entire Village (at Village expense), rather than force the Town to deal with

the patchwork approach that would otherwise be required for it to maintain its

roads only. (Id., 7). It was also determined that it was not feasible for the

Town to provide the residents of these finger areas with the services they seek:

central water and sewer, sidewalks and streetlights. As difficult as roadway

maintenance is, the logistics of supplying these services to that distant area

are nearly insurmountable. (Id. 8).These significant factors were considered

when the Town Board made its SEQRA determination.

It was also demonstrated that within the 164 acres is a large cemetery,

a lake of significant size, as well as some steep slope and wetland areas, Be-

cause such lands cannot be developed, there was no basis for the Town to con-

sider the future impacts from developing much of the 164 acres. (Doles Affid.,

__). In addition, much of the land within the 164 acre property is already

developed or, based upon approvals granted by the Town of Monroe Planning

Board, already slated for defined development. Only 25% of the developable

land within the 164 acres remains undeveloped. (Id.).

The FGEIS acknowledged that development would occur within this


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area regardless of whether the annexation occurred. (Record, 011896011902).

While it was found that such development will likely occur at a higher density

after annexation than if the land remained outside of the Village, there was a

significant benefit from annexationin the judgment of the Town Boardto

all of the surrounding municipalities if such development occurs at a higher

density since higher density development avoids sprawl. (Doles Affid., 10).

There was substantial evidence supporting the findings regarding the 164-acre

petition.

While the Town consultant found that issues still existed on the ultimate

environmental impacts that development might have on the surrounding area,

such analysis and study was appropriately contemplated to be done when a

site specific development was proposed. This was confirmed by the Village as

Lead Agency under SEQRA which acknowledged that impacts relating to site

specific plans, to the extent any proposal would cause a substantial adverse

impacts, would be addressed through a further SEQRA review at that time.

(Record, 011897). It simply was not possible to contemplate all possible impacts

from the different site specific development proposals that could occur within

the annexation territory.

Petitioners contention that the discrepancy in the Town EFS regarding

the 507-acre petition and the 164-acre petition requires invalidation of the EFS

should also be rejected. Although the 164-acre property is included in the 507-

acre property, significant differences existed. The Town specifically stated in


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the Town EFS:

The town board fully supports the EIS insofar as it ad-dresses the 103.8-acre [sic] annexation. However, it finds theEIS inadequate as to the 507.4-acre annexation. Being una-ble to assess and analyze the environmental impacts of thelarger annexation the town board finds that the edge of the163.8-acre annexation territory is the appropriate locationto end the village high-density, pedestrian-friendly develop-ment and allow a transition to more rural, low-density de-velopment that has long been the hallmark of the Town ofMonroe.

(Record, 013315).

In addition, in the GML 711 Resolution adopted by the Town Board the

same evening as the Town EFS, the Town Board addressed various other dif-

ferences between the 164-acre petition and the 507-acre petition. (Record,

013325013347). For example, in the GML 711 Resolution, the Town Board

made these determination regarding the potential impacts from the 164-acre

annexation:

The village will gain additional territory for potential devel-opment of housing and community buildings to accommo-date a growing local population. As noted in the DGEIS, theland available for development within the villages currentborders is limited, while the population continues to grow ata consistent rate from internal cultural dynamics. Inclusionof the territory within the villages borders will enable pro-vision of services designed to support additional develop-

ment including provision of municipal water and sewer andfurnishing of culturally necessary infrastructure such as pe-destrian facilities and public transportation. The villagesgrowth has required major investments in infrastructure,which can be extended at relatively low marginal cost to theterritory, while providing additional tax base to the villageto support these investments. The village will also benefit


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by gaining additional tax base support for public safety ser-vices, such as police and EMS. The town board finds thatthe additional territory will help defray the villages highercosts, for example, for professional police and fire services.

(Record, 013331).

The Town Board also found there would be other significant benefit from

the 164-acrea annexation:

The town board finds that annexation will promote in theefficient delivery of water to the territory to be annexedbased on the villages existing and planning municipal watersupply sources. Water is provided in the annexation terri-

tory by private groundwater wells or through creation of aspecial district in the town and a contract with the village.

Annexation will enable residents in the annexation territoryto more easily and reliably connect to the villages municipalwater system. This central water supply connection will alsorelieve some of the pressure on the local groundwater aqui-fer used by residents in nearby communities, including thosein the annexation territory and others in the Town of Mon-roe outside of the village. The Board finds that improvedwater service to the annexation territory is a substantialbenefit to the annexation territory.

Integrating the annexation territory with the villages up-graded transportation and pedestrian infrastructure alsoprovides important safety, social and cultural benefits to theresidents of the proposed annexation territory. Residents ofthe annexation territory who do not drive for cultural andlifestyle reasons have little pedestrian infrastructure suchas sidewalks or sufficient nighttime illumination. The vil-lage has made providing sidewalks an infrastructure prior-ity with street lights and six-foot-wide sidewalks kept fullysnow-plowed during the winter. The town board finds that

the annexation will enable pedestrian infrastructure in theannexation territory to be upgraded to village standards,and pedestrian safety would be greatly enhanced with theannexation territory.

(Record, 013335). These findings were only related to the 164-acre annex-


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ation petition. Although these findings were included in the GML 711 Resolu-

tion, this resolution was adopted the same evening as the Town EFS. The

findings in the GML 711 Resolution provide additional reasoned elaboration

for the Town Boards differentiation between the 164-acre petition and the

507-acre petition.

Merely because the Towns consultant recommended the preparation of

a supplement GEIS for both the 164-acre and 507-acre petitions does not mean

the Town Board had to follow its consultant recommendation. Here, the Village

as Lead Agency, with the advice and assistance of its experts, made the deter-

minations charged to it. That the Towns consultant disagreed with the deci-

sions the Lead Agency made regarding the 507-acre annexation petition does

not make the decisions of the Lead Agency or the determination in the Town

EFS regarding the 164-acre petition arbitrary or capricious.

In fact, the Village Board and its consultants also determined that the

164-acre annexation complied with SEQRA by minimizing environmental im-

pacts to the maximum extent possible, avoiding adverse environmental im-

pacts or minimizing any such impacts to the maximum extent possible. Simi-

larly, the annexation was imperative to meet the current and anticipated needs

of local area residents to have community services that that would otherwise

be less available or unavailable. (Record, 013006013007).

Nor should the court decide a SEQRA challenge on a battle-of-experts

basis.


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Where there is conflict in the testimony produced before theBoard, where reasonable men might differ as to whether thetestimony of one witness should be accepted or the testimonyof another witness be rejected, where from the evidence ei-ther of two conflicting inferences may be drawn, the duty of

weighing the evidence and making the choice rests solelyupon the Board. The courts may not weigh the evidence orreject the choice made by the Board where the evidence is

conflicting and room for choice exists. [citation omitted].)30

Although the Towns own expert may have determined that additional in-

formation was required with required before a determination could be made

under SEQRA regarding the 164-acre petition, the Town Board clearly disa-

greed and instead agreed with the Villages consultant and thefindings made

by theVillage Board on this issue. It is not the Courts prerogative to disre-

gard this discretionary determination.

As a result, Petitioners claims seeking to annul and vacate the Town EFS

should be rejected.

30Stork Rest. v Boland, 282 NY 256, 267 (1940). See also, Matter of Jennings v. New YorkState Office of Mental Health, 90 N.Y.2d 227, 239 (1997); Matter of Hogg v. Cianciulli, 247A.D.2d 474 (2d Dept. 1998).


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POINT III:THE DECLARATORY JUDGMENT CAUSES OF ACTION MUST BE DISMISSED

The citizen challengers assert, in addition to their article 78 claims, a se-

ries of declaratory judgment claims at law [Establishment Clause violation,

Town of Monroe Ethics Code violation, citizen-taxpayer claim of waste]. All

focus on the joint determinations of the town and village boards of overall

public interest regarding the 164-acre annexation. While issuing these deter-

minations, those boards acted in a legislative capacity. Judicial review of leg-

islative acts ison separation of powers groundsquite limited.

Judicial review of legislative acts is limited

The right of a person to challenge a legislative act is strictly limited by

law. An individual with proper standing may challenge the procedural as-

pects of a legislative enactment by an article 78 proceeding only.31 In such

cases, judicial review is limited to determining whether the proceedings prox-

imate to the challenged legislative act violated lawful procedure, were af-

fected by an error of law, or were arbitrary and capricious, an abuse of discre-

tion, or irrational.32

All challengers make such article 78 claims here. All challengers claim

31Save Pine Bush, Inc. v. City of Albany, 70 N.Y.2d 193, 202 (1987) (when the challenge isdirected at the procedures followed in [a legislative] enactment, it is maintainable [only]in an article 78 proceeding).

32East Moriches Property Owners Assn, Inc. v. Planning Bd. of Town of Brookhaven, 66A.D.3d 895, 897 (2d Dept. 2009) (Since the issues of law in dispute here are limited towhether the challenged determinations were made in violation of lawful procedure, affectedby an error of law, arbitrary and capricious, an abuse of discretion, or irrational, they aresubject to review only pursuant to CPLR Article 78).


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that the annexation-petitioner-landowners failed to satisfy the requirements

of GML 705(1)(d) [annexation petition sufficiency], which claims are properly

brought as article 78 claims because they allege that the joint determination

of overall public interest violated lawful procedure. The SEQRA challenges

issues of standing asideare also properly brought under authority of article

78.

The standard of review governing such claims is the arbitrary and capri-

cious standard of CPLR 7803(3) and not the substantial evidence standard

of CPLR 7803 (4).33The court must determine whether the joint overall pub-

lic interest determination of the town and village boards was affected by an

error of law, or [was] arbitrary and capricious or an abuse of discretion, or

[was] irrational.34

While reviewing under this stringent standard, the court is to determine,

not whether the decision of those boards were correct, but rather whether

those boards were arbitrary and capricious in deciding the matter as they

did.35 And that determination is to be made, not upon a new record made at

33Baker v. Village of Elmsford, 70 A.D.3d 181 (2d Dept. 2009).

34Baker v. Village of Elmsford, 70 A.D.3d 181, 187 (2d Dept. 2009).

35A court should not substitute its judgment for that of a municipal board or official unlessthat board or official has acted arbitrarily, illegally or irrationally. See, Pittsford Plaza As-sociates v. Spiegel, 66 N.Y.2d 717 (1985); Roth v. Friedman, 51 A.D.2d 728 (2d Dept. 1976);Apkan v. Koch, 75 N.Y.2d 561 (1990); Koncelik v. Planning Board of the Town of East Hamp-ton, 188 A.D.2d 469 (2d Dept. 1992); Marx v. Planning Board of the Village of Mill Neck, 185A.D.2d 348 (2d Dept. 1992); Group for the South Fork v. Wines, 190 A.D.2d 794 (2d Dept.1993).


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trial, but rather upon the record made before that board.36As the Court of

Appeals announced in Featherstone v. Franco,37to allow otherwise:

would violate [a] fundamental tenet of CPLR article 78 re-viewnamely, that [j]udicial review of administrative de-terminations is confined to the facts and record adduced be-fore the agency [citations omitted].38

An individual with proper standing may however challenge the constitu-

tionality39of a legislative act in an action for declaratory relief40as the citizen

challengers do in their first and second causes of action claiming a violation

of the Establishment clause of the United States Constitution. Beyond this

limited exception,41a citizen has no standing to challenge the legislative acts

36Kelly v. Safir, 96 N.Y.2d 32, 39 (2001) (The review of anadministrative determinationis limited to the facts and record adduced before the agency).

37Featherstone v. Franco, 95 N.Y.2d 550 (2000).

38Featherstone v. Franco, 95 N.Y.2d 550, 554-555 (2000).39Town of Huntington v. Park Shore Country Day Camp of Dix Hills, Inc. , 47 N.Y.2d 61,

65 (1979) (we must recognize that all legislative enactments are invested with an exceed-ingly strong presumption of constitutionality [A challenger] therefore, shoulder[s] the veryheavy burden of demonstrating beyond a reasonable doubt that the [legislative enactment]was violative of [constitutional] standards).

40Ames Volkswagen, Ltd. v. State Tax Commission, 47 N.Y.2d 345, 348 (1979) (An article78 proceeding, as such, does not lie to challenge the constitutionality of a legislative enact-ment The proceeding was properly converted into an action for a declaratory judgment).

41As addressed in Point VIII, in unusual and limited circumstances, an individual mayalso, by means of a citizen-taxpayer action as authorized by Section 51 of the General Munic-

ipal Law challenge governmental actions amounting to waste. Citizen-taxpayer actions are,however, limited by strict rules of standing and pleading. See, Olmsted v. Meahl, 219 N.Y.270, 274 (1916); Food Mart Assoc. v. City of New York, 64 Misc.2d 971, affd. 36 A.D.2d 693(1971); Childs v. Tompkins, 180 A.D. 855, 857 (2d Dept. 1917) (The people have confided totheir elected officials a wide range of authority, in the case of which they are answerable totheir constituents. In the exercise of these powers, the local authorities are beyond the direc-tion and control of the courts. If they should make mistakes, they must be temporary, com-pared with the mischief which judicial supervision in all cases would ultimately prod uce.).


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of a municipality or its officials nor do municipal officials have any greater

standing to mount such a challenge.42

A challenge to a local legislative act, whether mounted by article 78 pro-

ceeding painting its enactment as arbitrary and capricious or by declaratory

judgment action attacking its wisdom or propriety, will fail as a matter of

law.

As more fully and separately discussed below, each of the citizen chal-

lengers declaratory claims should be dismissed as a matter of law. The town

has moved, by cross-motion, for summary judgment dismissing all of these

claims.

42Only individuals may bring citizen taxpayer challenges and an elected official has no greater authorityto commence an action against other elected officials than does an ordinary citizen, for to allow the bring-

ing of such suits would empower [such officials] to litigate whenever they perceived an encroachment

by [the others] on their [official] functions [resulting in] the judiciary [being] inextricably enmeshed in a

never-ending series of challenges Silver v. Pataki, 274 A.D.2d 57, 64 (1stDept. 2000).


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POINT IV:THE ALLEGED ESTABLISHMENT CLAUSE VIOLATION CLAIMS HAVE NO

MERIT.

The citizen petitioners claim that the votes of the Village and Town

Boards finding the 164-acre annexation to be in the overall public interest vi-

olated the Establishment Clause of the United States Constitution. (Citizen

Petition, paragraphs, 294297). They ground this claim on language within

the 1994 United States Supreme Court decision in Board of Education of Ki-

ryas Joel Village School District v. Grumet, et al.43While the U.S. Supreme

Court set aside the legislation passed by New York State that created a sepa-

rate school district solely to serve the Village of Kiryas Joels distinctive pop-

ulation on the ground it violated the Establishment Clause, the citizen peti-

tioners misconstrue the reason the Supreme Court did so.

In the late 1980s Kiryas Joel village leaders complained to the State of

New York that handicapped students residing within the Village then attend-

ing special education classes within public schools outside the Village experi-

enced panic, fear and trauma in leaving their own community and being

with people whose ways were so different.44Because of the inability of the

Monroe-Woodbury School District to find another means of accommodating

the needs of the villages handicapped students, by 1989, only one child from

43Board of Education of Kiryas Joel Village School District v. Grumet, et al., 512 U.S. 687(1994).

44Id., at 692.


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Kiryas Joel was attending Monroe-Woodburys public schools45.

The State of New York, responding to these complaints, enacted Execu-

tive Law Section 71 in 1993. The United States Supreme Court found that

enactment of that statute constituted a manipulation of the franchise for

this district limited to Satmars, giving the sect exclusive control of the politi-

cal subdivision.46This created an electorate defined by common religious

belief and practice, in a manner that fails to foreclose religious favoritism,

cross[ing] the line from permissible accommodate to impermissible establish-

ment.47

The government act that violated the Establishment Clause was the en-

actment of legislation specifically tailored to satisfy the desires of the Satmar

community in a fashion distinct from any traditional method of creating a

school district under the education law. And, while the law made no refer-

ence to the religious beliefs of the Satmar community, it referred specifically

to the residents of the territory of the Village of Kiryas Joel and thus effec-

tively identified the recipients of governmental intervention by reference to

doctrinal adherence with the result that the boundary lines of the Kiryas Joel

School District divided residents according to religious affiliation under an

unusual and special legislative act.

45Id. at 693.

46Id. at 698.

47Id. at 710.


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In her concurring opinion, Justice OConnor noted that incorporation of

the Village of Kiryas Joel under existing provisions of state law did not vio-

late the Establishment clause because the legislation authorizing the crea-

tion of a village was general in its application throughout the state and was

not tailored or written specifically to assist the Satmars in incorporating into

a village, pointing out that the Satmars living arrangements were accommo-

dated by the righta right shared with all other communities, religious or

not, throughout New Yorkto incorporate themselves as a Village.48

No violation of the Establishment Clause existed when Kiryas Joel incor-

porated as a village under existing state law. However, the Establishment

Clause was violated when the state enacted specially tailored legislation for

the benefit of a religious community allowing it to create a unique and reli-

gious-tainted school district.

When the challenge to the legislatures enactment of a second law author-

izing the re-creation of the Kiryas Joel School District following the U.S. Su-

preme Court decision was brought, echoes of the foundation of the Supreme

Court opinion can be found in the resulting New York Court of Appeals deci-

sion. That court again found a violation of the Establishment Clause because

the qualifying criteria and the definitional cut-off, though perhaps well in-

tentioned and not entirely devoid of secular justification, [were] drawn in

48Id. at 714.


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such a way that the benefit flows only to a single sect [citing Board of Educa-

tion of Kiryas Joel Village School District v. Grumet, et al., 512 U.S. 687,

705(1994)].49In reaching this conclusion, the Court of Appealsas had Jus-

tice OConnortook pains to contrast the difference between a law of general

application and special legislation intended to benefit a religious group:

Contrasting the constitutionally suspect creation of the Ki-ryas Joel School District with the process by which the Vil-lage itself has been formed pursuant to a religion-neutralState law of general applicability (see, Village Law 2-202),the [United States Supreme] Court concluded: the religious

community of Kiryas Joel did not receive its new governmen-tal authority simply as one of many communities eligible forequal treatment under a general law, we have no assurancethat the next similarly situated group seeking a school of itsown will receive one [Board of Education of Kiryas Joel Vil-lage School District v. Grumet, et al., 512 U.S. 687, 703(1994)].50

Here, no special legislation has been passed by the state, the village or

the town. The annexation petitions were processed under laws of general ap-

plicability that entitle property owners to petition for annexation of their

property into an adjoining municipalitys territory. That such annexation, in

the circumstances presented here, might cause the enlargement of the

Satmar religious community does not constitute a violation of the Establish-

ment Clause any more than the creation of the Village under the general pro-

49Grumet v. Cuomo, 90 N.Y.2d 57, 73 (1997).

50Grumet v. Cuomo, 90 N.Y.2d 57, 65 (1997).


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visions of the New York State Village Law constituted a violation of the Es-

tablishment Clause when the Village was incorporated.

The Establishment Clause violation causes of action should be dismissed

summarily.


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POINT V:THE TOWN OF MONROE ETHICS CODE HAS NOT BEEN VIOLATED.

The citizen petitioners are also incorrect in their contention that the

Town of Monroe Code of Ethics has been violated by those Town Board mem-

bers that found the 164-acre annexation to be in the overall public interest

for essentially the same reasons set forth in the Establishment Clause viola-

tion discussion above. The Town of Monroe Code of Ethics was not legislation

enacted specifically to satisfy the desires of the Satmar Hasidic community to

live an insular existence. Nor does the Town of Monroe Ethics Code require

segregation based upon creed. Instead, the Town ethical standards set forth

rules applicable to all issues relating to town government and were not tai-

lored or written specifically to assist the Satmar religious community.

Moreover, a vote for annexation does not causevoluntary segregation.

All of the property owners that have petitioned for annexation are already

members of the Satmar religious sect. Annexation of the 164-acre property

will merely move the Village boundary line outward to include the members

of that religious community now residing in the Town to include them within

the Village. That such annexation, in the circumstances presented here,

might cause a potential enlargement of the Satmar religious community (by

an increase in the allowable housing density that might lead to more housing

units within the area annexed) does not constitute a violation of the Town

standards of ethics because the annexation does not discriminate or cause

voluntary segregation based upon creed. If such voluntary segregation exists,


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it exists already and the relocation of a municipal boundary line is not the

cause of its existence.

The claim that the Monroe Ethics Code provisions have been violated

should be dismissed summarily.


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POINT VI: THE 164-ACRE PETITION DOES NOT VIOLATE THE PRIOR JURISDICTION

RULE.

Both the municipal petitioners and citizen petitioners next argue that the

prior jurisdiction rule, as determined by this Court in In re Commandeer

Realty Assocs., Inc. et al v. Allegro, et al.,51is applicable here. (Municipal Pe-

tition, paragraphs 102107 and Citizen Petition, paragraphs 536541) This

contention should be rejected. First, the petitioners did not raise this argu-

ment until late in the proceedings and should have moved to stay the 164-

acre petition when it was filed rather than waiting for the entire SEQRA and

General Municipal Law review process to be completed. To allow Petitioners

to assert this argument at the last minute is inequitable and should not be

grounds for invalidating the Town Boards determination regarding the 164-

acre annexation petition.

This argument also has no merit. Based on the prior jurisdiction rule,

once an annexation proceeding has been commenced, other municipalities are

prohibited from proceeding with a competing annexation petition concerning

the same territory. The key distinction from Commandeer Realty is that the

later filed annexation proceeding was not proposing annexation of territory to

a different municipality. Rather, the annexations petitions were proposed by

private property owners within the 507-acre and 164-acre areas and proposed

51In re Commandeer Realty Assocs., Inc. et al v. Allegro, et al. , 16 N.Y.S.3d 391, 2015 N.Y.Slip Op. 25276 (Sup. Ct. Orange Cty. August 18, 2015),


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annexation of territory to the same municipalitythe Village of Kiryas Joel.

This distinction prevents the application of the prior jurisdiction rule here.

The Municipal Petitioners recognize this distinction in their Amended Pe-

tition dated October 26, 2015. In paragraph 106 of the Amended Petition, the

municipal petitioners allege that:

The overlapping 507-acre annexation petitions at issuein the instant proceeding differ from the two overlapping pe-titions at issue in Commandeer Realty in that both petitionsseek to annex overlapping territory to the same municipal-ity, but the concerns as to potentially inconsistent election

results cited by the Court in Commandeer Realty also applyto the 507-acre and 164-acre petitions.

This Court also recognized the significance of this distinction in its Com-

mandeer Realtydecision:

However, the appellate courts of nearly every other stateto have addressed this issue have held that the municipality

to take the first formal step towards annexation acquires ju-risdictional priority over any other municipality seeking toannex the same territory by virtue of the common law prior

jurisdiction rule.52

This distinction is logical given that the primary purpose of the prior ju-

risdiction rule is to stop a proposed annexation into a different municipality

while an annexation proceeding by another municipality is pending. Compet-

ing simultaneous annexations into different municipalities would creat[e] a

potentially chaotic race to completion that could deprive earlier filers of the

52Commandeer Realty, 16 N.Y.S.2d at 406 (emphasis added).


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full benefits of the law and potentially open[] the annexation process up to

abuse.53This Court also noted that by allowing a later filed annexation pro-

ceeding to proceed, it could deprive the Appellate Division of the right to de-

termine the overall public interest of the first petition. These concerns

simply do not exist when two annexation petitions that propose annexation of

territory into the same municipality.

Moreover, the alleged risk of inconsistent elections results proffered by

Citizen Petitioners at page 39 in their Memorandum of Law in Support of

their Article 78 Petition is not of significant concern where the same munici-

pality is seeking to annex the same territory in a later filed annexation peti-

tion. As the Court is aware, the special election has already been held regard-

ing the 164 acre annexation petition. There is no evidence that if the 507-acre

annexation petition survives the challenges in this proceeding and is put into

effect by the Appellate Division, there will be any issue with holding an elec-

tion for property owners within the 507-acre petition area. The property own-

ers in the 164-acre petition who have already voted on the issue of the annex-

ation will merely vote again. Moreover, who votes in the 507-acre annexation

is of no concern to any of the Petitioners since none of them own property

within the territory proposed to be annexed in either the 164- or 507-acre pro-

posed annexations. Thus, any argument that the Petition should be granted

53Id. at 409.


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based upon the claim that the 164-acre petition violates the prior jurisdic-

tion ruleis in error and should be rejected.


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POINT VII:THE 164-ACRE ANNEXATION PETITION WAS NOT FILED TO AVOID EXISTING

ZONING RESTRICTIONS.

The citizen petitioners claim that the 164-acre annexation request is in-

firm because approving it will allow a greater density of development under

the village zoning law than is permitted under the town zoning law. Relying

upon Vil. of Skaneateles v Town of Skaneateles,54they claim that annexation

under such circumstances is impermissible. Skaneatelesdoes indeed add

likely zoning changes to the over-all public interest evaluation. However,

what Skaneateles found impermissible is annexation undertaken intention-

ally to avoid zoning restrictions, not annexation that will merely result in

such avoidance.

Of even higher authority is City Council of City of Mechanicville v Town

Bd. of Town of Halfmoon,55a decision affirmed by the court of appeals, in

which the appellate division, third department ruled in clear terms that:

Annexation cannot be considered as being in the over-allpublic interest where the only benefit to be derived is expan-sion room for the municipality seeking annexation while theannexed area and the area out of which it is to be carved,will be adversely affected.56

54Vil. of Skaneateles v Town of Skaneateles, 115 A.D.2d 282 (4th Dept. 1985) (there is noprecedent approving the use of annexation as a device by which the owner of land in one mu-nicipality may escape the effect of that municipality's local legislation by having the landtransferred to an adjoining municipality).

5532 A.D.2d 152, 156 (3d Dept. 1969) affd,27 N.Y.2d 369 (1971).

56Id., 32 A.D.2d at 156. See, more recently, Bd. of Trustees, Vil. of Spring Val. v Town ofRamapo, 264 A.D.2d 519, 52021 (2d Dept. 1999).


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Where other benefits flow from annexation and no significant adverse ef-

fects will fall on the transferring municipality, that zoning restriction avoid-

ance might have been a motivating factor in petitioning for annexation, does

not prohibit approval of the annexation. Application of the over-all public in-

terest test requires a far more nuanced balancing of relative benefit and det-

riment than the narrow and myopic test the citizen challengers urge the

court to apply.

The primary purpose of the annexation, as represented by the individuals

who filed the petitions for annexation and as found by the Town and the Vil-

lage during the Article 17 proceedings, is to gain access to improved local gov-

ernment services, integrate with Village infrastructure such as sidewalks and

street lighting, which will dramatically improve pedestrian safety, and access

village emergency services, which can respond more quickly to the annexa-

tion territory, and can offer service in both English and Yiddish, whereas the

Town has not provided such services. On that basis, the Town Board properly

found that the 164-acre annexation will enable a greater density of develop-

ment in an area where services can be easily extended to serve the expected

inhabitants while increasing the tax base of the village, a substantial benefit

to the village.

The 164-acre annexation petition did not seek to improperly up-zone the

property and that claim must be rejected.


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POINT VIII:The Purported Citizen Taxpayer Claims Must Be Dismissed.

A citizen taxpayer claim against a local municipality or its officials is a

creature of statute,57that statute being Section 51 of the General Municipal

Law. To bring such a claim, one must plead standing, file a bond and demon-

strate wrongful acts within reach of the statutes authorization.

The conditions precedent to bringing a citizen taxpayer claim [the pleading of requi-

site standing and the filing and service of a bond] have not been satisfied.

To obtain citizen taxpayer standing against a local municipality, a chal-

lenger58must comply with the two condition-precedent pleading require-

ments of Section 51 of the General Municipal Law. He must plead and prove

that: (1) he is a taxpayer of the local municipality and that his property has

been assessed at least one thousand dollars (for which he is liable to pay

taxes;59and, (2) he must deposit with the county clerk and serve on the local

municipality a bond sufficient to cover the costs of those sued should the

57A common law citizen taxpayer challenge may also arguably be mounted, but only to theconstitutionalityof revenue expending and revenue raising acts of government. Wein v.Carey, 41 N.Y.2d 498(1977). Such challenges have been narrowly cabined. Thus, no chal-lenge may be brought to the issuance of tax or revenue anticipation notes, for such notes arenot themselves revenue expending or revenue raising acts. See, Wein v. Comptroller, 46N.Y.2d 394, 399 (1979). Nor can such challenges be brought to the nonfiscalactivities of theagencies of municipal government [Leichter v. Barber,88 A.D.2d 1029, 1030 (3d Dept.1982)]. The challengers here do not allege the unconstitutionality of a revenue expending or

revenue raising act. A common law claim does not, therefore, lie.58Only individuals may bring citizen taxpayer challenges and an elected official has no greater authority

to commence an action against other elected officials than does an ordinary citizen, for to allow the bring-

ing of such suits would empower [such officials] to litigate whenever they perceived an encroachment

by [the others] on their [official] functions [resulting in] the judiciary [being] inextricably enmeshed in a

never-ending series of challenges Silver v. Pataki, 274 A.D.2d 57, 64 (1stDept. 2000).

59Food Mart Assoc. v. City of New York, 64 Misc.2d 971, affd. 36 A.D.2d 693 (1971).


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claim be dismissed.

The citizen challengers do not plead60such taxpayer status in their peti-

tion/complaint. The bond required by GML 51 has not been filed. Nor has it

been served on the town or village. Failure to satisfy these conditions prece-

dent to commencement of a citizen taxpayer suit dictates dismissal.61

The citizen challengers do not allege fraud or corruption and waste as required by

General Municipal Law Section 51.

A taxpayer-challenger must allege more than mere illegalityhe must al-

lege that the challenged officials conduct was fraudulent, collusive, or moti-

vated by personal gain.62Allegations of illegality alone are not enough to

plead a citizen-taxpayer claim.63 The collusive, fraudulent conduct must also

be calculated to work public injury or produce some public mischief64and65

60The petitioner/plaintiff alleges only (in paragraph 1 of the petition/complaint) that heis a resident and duly registered voter of the Village of Cornwall-on-Hudson Residence isboth inadequate and irrelevant to establishing standing to bring a citizen taxpayer claim pro-ceeding. Steele v. Village of Glen Park, 193 N.Y. 341 (1908). Being a registered voter is like-wise irrelevant to standing to maintain such a challenge.

61Schulz v. De Santis, 218 A.D.2d 256 (3d Dept. 1996).

62Duffy v. Longo, 207 A.D.2d 860, 862 (2d Dept. 1994) (a taxpayer must establish that theofficials actions were both illegal and fraudulent, collusive, or motivated by personal gain. [emphasis in the original]. Because not one of the latter three elements is established, oreven alleged, the first cause of action must fail.).

63See, Fisher v. Biderman, 154 A.D.2d 155, 159 (1

st

Dept. 1990) (As the IAS court (141Misc.2d 804, 534 N.Y.S.2d 850) correctly found, it has repeatedly been held that mere illegal-ity is insufficient to establish the right to institute a taxpayer suit.).

64Altschul v. Ludwig, 216 N.Y. 459, 467 (1916), quoted in Korn v. Gulotta,72 N.Y.2d 363,372 (1988).

65As noted in Murtha v. Incorporated Village of Island Park, 202 A.D.2d 650, 650-651 (2dDept. 1994): Although the statute itself is written in the disjunctive, apparently permitting


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to create waste.66

The citizen challengers make no allegations of fraud, collusion, or conduct

intended to create public mischief. The closest they come is the allegations in

paragraphs 306-308 of the citizen petition wherein they allege illegal and/or

unconstitutional conduct or actions. This does not satisfy the rigorous re-

quirements of GML 51 or the pleading requirements of second department

jurisprudence.67 Similarly, the unsupported and conclusory allegation that

the proposed annexation was calculated to work public injury and produce

public mischief (Citizens Petition, 306307) are not sufficient to satisfy

the requirements of GML 51. The pleadings, instead, suggest only that the

Town and Village Boards made decisions with which the citizen challengers

disagree. As observed in McQuillin, The Law of Municipal Corporations:

If the result of a given [legislative] action is an economicmistake, a municipal extravagance, and an improper burden

on the taxpayers, as so often urged in contests of this nature,the prevailing answer of the courts is that the remedy, if anyexists, is at the ballot box, rather than by injunction or other

a suit to prevent either an illegal act or waste, the controlling cases interpreting the statutehave required that both elements be present.

66Mesivta of Forest Hills Institute, Inc. v. City of New York, 58 N.Y.2d 1014, 1016 (1983):To hold otherwise would subject the discretionary action of all local officers and municipal

bodies to review by the courts at the suit of the taxpayers, a result which would burden thecourts with litigation, without increasing the efficiency of local administration.

67The Appellate Division, Second Department, has specifically adopted the Iqbalpleading standard

[Ashcroft v. Iqbal, 556 US 662]. In that case, Cozzani v. County of Suffolk, 84 A.D.3d 1147, the court held

that a failure to plead adequate factual (as opposed to conclusory) support for legal claims will doom that

pleading to failure.


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court proceeding.68

The same pointfrom another perspectivewas long ago made by the

Appellate Division, Second Department:

The people have confided to their elected officials a widerange of authority, in the case of which they are answerableto their constituents. In the exercise of these powers, the lo-cal authorities are beyond the direction and control of thecourts. If they should make mistakes, they must be tempo-rary, compared with the mischief which judicial supervisionin all cases would ultimately produce. [citing to Kittinger v.Buffalo Traction Co., 160 N. Y. 377, 392 (1899)].69

Standing to bring a taxpayers challenge has not been properly alleged or

established. No bond has been filed or served. And the conduct alleged does

not fall within the reach of GML Section 51. The citizen taxpayer claims as-

serted in the petition/complaint must be dismissed.

68McQuillin, The Law of Municipal Corporations, 10:36 [Judicial noninterference withdiscretionary functions].

69Childs v. Tompkins, 180 A.D. 855, 857 (2d Dept. 1917).


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CONCLUSION

The petitions and complaint should be dismissed.

Dated: January 22, 2016Respectfully submitted,

______________________

Michael H. Donnelly

DICKOVER,DONNELLY &DONOVAN,LLP

Attorneys for Town of Monroe28 Bruen Place

PO Box 610

Goshen, New York 10924

(845) 2949447

Michael H. Donnelly

Of Counsel

KEANE &BEANE,LLP

Attorneys for Town of Monroe

445 Hamilton Avenue, Suite 1500White Plains, NY 10601

(914) 946-4777

Joel H. Sachs, Esq.

Eric L. Gordon, Esq.

Of Counsel

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