Posted by: Patricia Salkin | September 12, 2015

NY Trial Court Grants Writ of Prohibition Restricting Simultaneous Attempt to Annex the Same Territory

The owners of property located in the Town of Monroe filed a petition for annexation of approximately 510 acres of Monroe territory to the neighboring Village of Kiryas Joel. The municipal boards of Kiryas Joel and Monroe both issued notices of intent to serve as lead agency to complete the required SEQRA review process. On January 28, 2015, the Commissioner of the Department of Environmental Conservation (DEC) rendered a determination designating the Village Board of Kiryas Joel as lead agency. Separately, a year later, a group of Monroe residents filed two petitions for the annexation of: 336 acres from Monroe to the Town of Blooming Grove; and for the simultaneous annexation of the same 336 acres from Monroe to the Village of South Blooming Grove. The territory that is the subject of these petitions (hereinafter BG/SBG petitions) overlaps the territory proposed for annexation in the KJ petitions in that it includes approximately 228 acres of the same territory that is the subject of the KJ petition, and further sought the annexation of approximately 108 acres that is not part of the KJ petition. The petitioners, signatories to the KJ petition, and whose properties overlap with the territory sought to be annexed by the BG/SBG petitions, commenced this proceeding pursuant to CPLR article 78 for a writ of prohibition restraining Blooming Grove, South Blooming Grove, and Monroe from taking any action on the BG/SBG petitions. This Article 78 proceeding presented an issue of first impression for New York courts as to whether different municipalities may simultaneously attempt to annex the same territory.

The minimum requirements for municipal annexation are embodied in the New York State Constitution, article IX, § 1, the Bill of Rights for Local Governments, which provides that “no local government or any part of the territory thereof shall be annexed to another until the people, if any, of the territory proposed to be annexed shall have consented thereto by majority vote on a referendum and until the governing board of each local government, the area of which is affected, shall have consented thereto upon the basis of a determination that the annexation is in the over-all public interest.” Therefore, within 90 days after the hearing, the governing board of each affected municipality must determine whether the petition for annexation meets all substantive and procedural requirements and, if so, whether the proposed annexation is in the over-all public interest. If a governing board fails to timely file a written order setting forth its determination, the board “shall be deemed to have approved the proposed annexation as of the expiration of the ninety-day period”

Here, the court took into account New York’s statutory annexation scheme, and considered the potential policy implications of permitting multiple annexation proceedings of the same territory. Accordingly, the court found that the prior jurisdiction rule provided for exclusive jurisdiction of the KJ petition. Once the municipal annexation process had commenced by the filing of a petition for annexation, the affected municipalities would therefore have exclusive jurisdiction over any annexation of the territory at issue until the annexation process is finally concluded. Thus, the court held that when the first annexation process is finally concluded, the second-filed annexation petition, would have priority over any subsequently-filed annexation petition involving the same territory.

Commander Realty Associates, Inc. v Allegro, 2015 WL 4920070 (Sup. Ct. Orange County 8/18/2015)

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