City Council v. Town Bd.

• Decision Date: 02 December 2004
• Citation: 822 N.E.2d 339,789 N.Y.S.2d 88,3 N.Y.3d 508
• Parties: In the Matter of CITY COUNCIL OF THE CITY OF WATERVLIET et al., Appellants, v. TOWN BOARD OF THE TOWN OF COLONIE, Respondent.
• Court: New York Court of Appeals Court of Appeals

3 N.Y.3d 508

822 N.E.2d 339

789 N.Y.S.2d 88

In the Matter of CITY COUNCIL OF THE CITY OF WATERVLIET et al., Appellants, v. TOWN BOARD OF THE TOWN OF COLONIE, Respondent.

Court of Appeals of the State of New York.

Argued October 13, 2004.

Decided December 2, 2004.

DiMarco & Riley, Rochester (Eugene Van Voorhis, Anne Dyring Riley and John P. Amuso of counsel), and Joseph F. Monaghan, City Attorney, Watervliet, for appellants.

Arnis Zilgme, Town Attorney, Newtonville (Danielle M. DeMers of counsel), for respondent.

Eliot Spitzer, Attorney General, Albany (Peter Lehner, Caitlin J. Halligan, Daniel Smirlock, Denise Hartman, John J. Sipos, James Tierney and Philip M. Bein of counsel), for New York State Department of Environmental Conservation, amicus curiae.

Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, READ and R.S. SMITH concur.

OPINION OF THE COURT

GRAFFEO, J.

We are asked in this case whether State Environmental Quality Review Act (SEQRA) review is required before a municipality adopts a resolution approving the annexation of real property from an adjacent municipality. We conclude that SEQRA requirements apply to all annexations under article 17 of the General Municipal Law, but that the extent of environmental assessment that must be undertaken is dependent on the specific development plans associated with the transfer of territory.

When a municipality seeks to acquire territory that lies within the boundaries of an adjacent municipality, article 17 of the General Municipal Law — known as the Municipal Annexation Law — sets forth the public interest concerns that must be weighed and the requisite procedural steps to be followed.¹ Generally, a proposed annexation is initiated by a petition signed by either 20% of the persons residing within the territory who are qualified to vote or by the owners of a majority of the assessed valuation of land in the area proposed to be transferred (see General Municipal Law § 703). Upon notice to the public and affected residents, the governing boards of the affected municipalities conduct a joint public hearing on the issue whether the annexation is in the overall public interest (see General Municipal Law §§ 704, 705). Within 90 days after the hearing, the governing board of each locality must adopt a resolution and issue a written order regarding whether annexation is in the overall public interest (see General Municipal Law § 711). In the event the local governments disagree, application may be made to the appropriate Appellate Division department to determine whether the proposed annexation is in the overall public interest (see General Municipal Law § 712).²

In this case, petitioner East-West Realty Corporation is the owner of approximately 37 acres of vacant property located in the Town of Colonie and adjacent to the City of Watervliet. The property is currently zoned to permit single family residences. East-West inquired of the Town about the possibility of constructing a senior citizen assisted-living development at the site and claims that the informal response from the Town was unfavorable. East-West then filed a petition with respondent Town Board of the Town of Colonie and petitioner City Council of the City of Watervliet seeking to have approximately 43 acres, including its 37 acres, transferred by annexation to Watervliet in accordance with article 17 of the General Municipal Law.³

In December 2002, Colonie and Watervliet held a joint public hearing on the petition. East-West did not present a formal development plan, but indicated "the property is proposed to be developed as potentially assisted living senior apartments." Watervliet subsequently passed a resolution approving of the annexation and declaring the transfer of realty to be in the overall public interest. Colonie meanwhile adopted a resolution denying the petition on the ground that annexation was not in the overall public interest. Colonie took the position that review of potential environmental impact under SEQRA was necessary to fully assess whether annexation was in the public interest.

Faced with conflicting municipal resolutions, Watervliet commenced this proceeding in the Appellate Division, and East-West intervened as a petitioner. In its answer and by motion to dismiss the amended petition, Colonie asserted that Watervliet failed to comply with SEQRA requirements prior to approving the proposed annexation.⁴ East-West cross-moved for an order appointing three referees to hear and report to the Court. The Appellate Division dismissed the petition and agreed with Colonie to the extent it held that "an appropriate form of SEQRA review of an annexation `action' is required" before either municipality could adopt a resolution regarding the annexation (309 AD2d 1114, 1116 [2003]). We granted Watervliet and East-West leave to appeal and now affirm.

SEQRA's primary purpose "is to inject environmental considerations directly into governmental decision making" (Matter of Coca-Cola Bottling Co. v Board of Estimate, 72 NY2d 674, 679 [1988]). The Legislature's intent is reflected in the statute, which requires that "[s]ocial, economic, and environmental factors [ ] be considered together in reaching decisions on proposed activities" (ECL 8-0103 [7]). The procedures necessary to fulfill SEQRA review are carefully detailed in the statute and its implementing regulations (see ECL 8-0101 — 8-0117; 6 NYCRR part 617; see also Matter of New York City Coalition to End Lead Poisoning v Vallone, 100 NY2d 337, 347-348 [2003]), and we have recognized the need for strict compliance with SEQRA requirements (Matter of Merson v McNally, 90 NY2d 742, 750 [1997]).

In this case, Watervliet and East-West initially argue that SEQRA does not apply to municipal annexations because article 17 of the General Municipal Law, which does not incorporate SEQRA explicitly, provides the exclusive process for annexations. They also contend that General Municipal Law § 718 (5) indicates that "[t]he provisions of [article 17] shall be controlling notwithstanding any inconsistent act of the legislature to the contrary," and therefore article 17 exempts annexations from SEQRA. We conclude, however, that SEQRA is neither inconsistent with nor contrary to the procedures delineated in the General Municipal Law.

It is well established that SEQRA "is a law of general applicability" (Matter of Sour Mtn. Realty, Inc. v New York State Dept. of Envtl. Conservation, 260 AD2d 920, 923 [1999],lv denied 93 NY2d 815 [1999]). Moreover, the Legislature has declared "that `to the fullest extent possible' statutes should be administered by the State and its political subdivisions in accordance with the policies set forth in SEQRA and that environmental factors should be considered in reaching decisions on proposed projects" (Matter of Tri-County Taxpayers Assn. v Town Bd. of Town of Queensbury, 55 NY2d 41, 46 [1982] [quoting ECL 8-0103 (6)]). The overriding goal of article 17 of the General Municipal Law is to assess whether a proposed annexation is in the best interest of the public. After a joint hearing predicated upon a petition for annexation is held (see General Municipal Law § 705), each municipality must, within 90 days of the hearing, decide whether annexation is in the "over-all public interest" (General Municipal Law § 711 [1]). Where the involved municipalities disagree on whether annexation is in the public's best interest — as happened in this case — the Appellate Division may be called upon to consider "whether the proposed annexation is in the over-all public interest" (General Municipal Law § 712 [1], [10]). The aims of SEQRA are congruous — the objective is to determine "`whether or not a project or activity should be approved or undertaken in the best over-all interest of the people of the State'" (Matter of WEOK Broadcasting Corp. v Planning Bd. of Town of Lloyd, 79 NY2d 373, 380 [1992], quoting Matter of Town of Henrietta v Department of Envtl. Conservation, 76 AD2d 215, 222 [1980]). We believe that SEQRA promotes, rather than undermines, the public interest purposes of article 17 of the General Municipal Law and therefore conclude that General Municipal Law § 718 (5) does not exempt the annexation process from SEQRA review.⁵

Watervliet and East-West further submit that SEQRA review is not required because annexation, in and of itself, is not an "action" as defined in article 8 of the Environmental Conservation Law. They contend that a proposed annexation must be accompanied by a specific development plan before SEQRA is triggered. Because East-West has no definite plans for the site and has not filed any formal application for development of its property, they claim that any SEQRA analysis is premature. We disagree.

Article 8 of the Environmental Conservation Law creates the procedural and substantive requirements for governmental entities to follow when reviewing the environmental consequences of proposed projects or "actions" (see Matter of WEOK Broadcasting Corp., 79 NY2d at 381). "Action" is a term of art in the SEQRA statute and is broadly defined to include:

"(i) projects or activities directly undertaken by any agency; or projects or activities supported in whole or part through contracts, grants, subsidies, loans, or other forms of funding assistance from one or more agencies; or projects or activities involving the issuance to a person of a lease, permit, license, certificate or other entitlement for use or permission to act by one or more agencies; [and]

"(ii) policy, regulations, and procedure-making" (ECL 8-0105 [4]).⁶

Pursuant to its authority under section 8-0113 of the Environmental Conservation Law, the New York State Department of Environmental Conservation (DEC) has promulgated regulations that refine the definition of "actions" for SEQRA purposes. For example, under DEC's regulations, "actions" include "agency planning and policy making activities that may affect the...