The owners of a 45-acre undeveloped parcel in the Town of Parma, located adjacent to the Village of Hilton submitted a petition to the legislative bodies of both municipalities requesting approval of annexation of their property by the Village. The owners intended to construct a 117-unit senior citizen housing development on the land. At the time of the requested annexation, the applicable zoning in the Town would have only allowed for 20 to 30 single family homes on the lot, whereas the zoning in the Village would have allowed for the higher density senior housing.
In December 2006 the Village conducted a public hearing on notice, adopted a resolution approving the annexation, and enacted a local law providing the property was annexed and zoned for senior citizen housing, effective upon filing of the local law with the Secretary of State. The Village never filed the local law. In January 2007 the Town held a public hearing on notice and voted to deny the petition for annexation. The minutes of the meeting were approved at the next Town Board meeting and forwarded to the Village. Although the Village rejected a request by the owners to initiate a special proceeding pursuant to GML 712, the Board filed its order approving the annexation, along with the petition, notice and minutes of the meeting adopting the resolution in favor the annexation with the clerks of the Town, Village and County. The Town did not “make, sign and file a written order” setting forth its determination with the offices of the clerks of all effected local governments within 90 days as required under GML 711(2)(b) and 711(5). GML 711(2)(b) provides that in the event of statutory noncompliance with the filing requirements it “shall be deemed to have approved the proposed annexation.” The Town was also supposed to file a determination as to whether it was in the over-all public interest to approve the proposed annexation and failed to do so. The property owners then notified the Town and Village that since the Town Board failed to file a written order as required by statute, they considered the annexation approved by default and operation of law.
The Town Board sought a determination that its failure to file a determination on the annexation petition did not amount to a default approval, and that no annexation had occurred. The Village did not oppose the Town, and in fact by the time of the litigation, the Mayor asserted that a majority of the Board had now taken the position that the annexation was not in the overall best interests of the Village.
The appeals court agreed with the trial court that the Town Board’s failure to adhere to the statutory filing requirements “did not result in default approval of the annexation, an, in any event, such default approval, under the facts presented, would violate the New York State Constitution.” The Constitution requires consent of both municipalities as well as a finding that the annexation is in the over-all public interest, and this is repeated in the Municipal Annexation Law (GML sec. 702). Further, the Court found that notwithstanding the “deemed…approved” language of the statute, in the circumstances presented, the Town Board did not approve the annexation y default and that inaction is not tantamount to consent. The Court explained that a default approval where the Town specifically voted to deny the approval could not be reconciled with the constitutional rights of each municipality. Nothing in the Town’s inaction evinced an intent to forego its constitutional rights. The Court further concluded that the Town’s failure to file was a mere clerical error and an inadvertent clerical error could not produce a result so at odds with the Constitution and the Municipal Annexation Law. None of the parties were misled as to the Town’s position, and neither the Town nor the Village desired the proposed annexation at the time of the litigation.
Town Board of the Town of Parma v. Board of Trustees of Village of Hilton, 2009 WL 3234190 (N.Y.A.D. 4 Dept. 10/9/2009).
The opinion can be accessed at: http://www.courts.state.ny.us/ad4/court/Decisions/2009/10-09-09/PDF/1042.pdf
Special thanks to Alan Knauf, Esq. of Knauf Shaw, LLP in Rochester, NY for forwarding this case.
