Scott E. Mollen
Scott E. Mollen ()

Land Use—Environmental—Opposition to Annexation Allegedly Based on Anti-Semitism—Respondents Accused of Seeking Religious Segregation—SEQRA—Standing—Supplemental EIS Not Required—Establishment Clause and Taxpayer Claims Dismissed

The “main issue in this case,…is whether [a] village Board and Town Board…took the requisite hard look and provided reasoned elaborations for why they found that there would be no significant adverse environmental effects associated with [a] 164 acre annexation petition [164 acre petition].” The New York State Constitution provides that “[n]o 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….”

This case involved the propriety of decisions by “the Town Board of Monroe (town board or town), and the Board of Trustees of the village of Kiryas Joel (village board or village), that approved the annexation of approximately 164 acres of land from the town…to the village….” Each municipality had determined that “the 164 acre annexation was in the over-all public interest and there would be no detrimental environmental impacts under the State Environmental Quality Review Act (SEQRA) associated with it.” The petitioners also asked the court to consider the over-all public interest of “a prior annexation petition involving an approximate 507 acre annexation territory (of which the 164 acres is wholly encompassed)….” Except for considering “whether the 507 annexation petition [507 petition] substantially complied with the procedural requirements of the General Municipal Law (GML),” the court severed and stayed all other claims by petitioners concerning the 507 acre petition, since there is a “pending special proceeding before the Appellate Division…, involving the village’s challenge to the town board’s determination that the 507 acre…petition was not in the over-all public interest so that a judicial determination may be made over whether or not” the 507 acre petition “is in the over-all public interest (the ‘special proceeding’).”

The respondents argued that “opposition to the annexation petitions [petitions]” is “ driven by anti-Semitism.” The petitioners countered that “the annexations themselves are the result of the village’s desire to engage in segregation.” Although there may have been “discriminatory motives behind certain opponents to the annexations, the essence of this case is…a religion-neutral dispute” between those seeking to retain the current zoning, i.e., low density and rural character, as against others who sought “to change municipal boundaries,” which would likely alter “the zoning and density…of the annexation territories.”

Although annexation will “lead to higher density,” the subject SEQRA actions involve “a change of municipal boundaries” to include the 164 acres as “part of the village rather than the town.” The lack of a “concrete injury” from this boundary change and “the rational basis for the assumptions employed,” made it difficult to find “that the requisite hard look was not taken, particularly since any future rezoning or…projects would be the subject of further SEQRA review, and if necessary, court appeal.”

The petitions were allegedly “driven by the village” to more than double its size, “in order to induce a mass migration of residents from the Hasidic Jewish Community in Brooklyn.” A newspaper editorial asserted that annexation could remedy the village’s housing shortage.

The annexation petitioners stated that they wanted “their properties annexed…to obtain village services that were not provided by the town,” e.g., “water and sewer, sidewalks, street lighting, fire, police,” ambulance and bus services. Although the village encouraged the annexation petitioners, the court did not view the annexation petitioners as merely people trying to further the village’s goal of providing housing for its internal growth and to support “a mass migration” from Brooklyn Hasidic communities. “Not a single property owner who did not sign the…petitions but who resides in the annexation territories [joined] this action as a petitioner, despite the fact that only a slight majority of the combined assessed valuations of the properties in the annexation territories were signatories to the petitions.”

The first petition “sought the annexation of 507 acres of land from the town.” A second petition had been filed seeking “the annexation of a 164 acre subarea of the 507 acres sought in the 507 acre…petition.” Although the petitioners argued that there had been “an inadequate SEQRA review by the town and village boards for the 164 acre…petition and by the village board for the 507 acre…petition, petitioners also asserted” that the petitions were invalid because they violated GML §§703 and 705, “since their sole purpose was to upzone the annexation territories;…the town and village boards improperly determined that the 164 acre…petition was in the over-all public interest and that the village board improperly determined that the 507 acre…petition was in the over-all public interest; and…the decisions approving the 164 acre…petition violate the primary jurisdiction rule since the 507 acre annexation was filed prior in time and the proceedings with regard to it had to have been completed first prior to any consideration of the 164 acre petition.”

It is permissible “to proceed with simultaneous annexation petitions involving the overlapping or contiguous property….” and “several petitions to annex territories contiguous to each other may be entertained simultaneously.” Here, the court found “no prior jurisdiction issue,” since both petitions “are seeking to annex town…land to the village….” The voters had “voted in favor of the 164 acre annexation.” The court opined that such vote would not “invalidate a subsequent vote involving this same 164 acre territory to the extent it was within the 507 acre…petition.”

The court dismissed challenges to the village and town’s “determinations of the 164 acre…petition” and to the village’s “over-all public interest determination” concerning the 507 acre petition. GML §711(4) provides that “[i]f after the hearings,” the municipalities agree “that an annexation is or is not in the over-all public interest, that determination is final and conclusive….” Accordingly, the court held that the favorable over-all public interest decision concerning the 164-acre annexation was neither arbitrary nor capricious. If “municipalities do not agree that the annexations are in the over-all public interest,” any “other affected municipality may apply to the Appellate Division…to determine whether the annexation is in the over-all public interest.”

Here, after the town board’s “negative over-all public interest finding with regard to the 507 acre…petition,” the “village initiated the special proceeding.” Since the issue of the appropriateness of the village board’s positive over-all public interest finding and the town board’s negative over-all public interest finding is before the Appellate Division, the court dismissed the claims regarding those issues.

The court severed and stayed challenges to the village board’s SEQRA findings as to the 507-acre petition. The court’s “analysis” of such SEQRA findings “would…invade the province of the Appellate Division in its review of the over-all public interest.” Judicial precedent held that “whether or not an annexation is in the over-all public interest is closely tied to the decision whether the project is in the public interest under SEQRA….” The court also dismissed claims against the NYS Department of Environmental Conservation with regard to the 507-acre petition, based on the petitioners’ “lack of standing and ripeness.” The court also held that the petitions substantially complied with GML §§703 and 705(1)(a), (b), (c) and (d).

The standard for SEQRA standing requires that a petitioner demonstrate “injury in fact—i.e., that petitioner would suffer direct harm, injury that is in some way different in kind or degree from that of the public at large; and…that the interest or injury asserted falls within the zone of interest sought to be protected or promoted by the statute under which the governmental action was taken….” The respondents argued that since “no specific rezoning and no specific project is being proposed”: at this time. The respondents argued that “the only people/entities with standing to challenge the SEQRA review” are “the affected municipalities…and the property owners in the annexation territories.”

The town found that “there would be significant detrimental environmental effects with the 507 acre annexation.” However, it found otherwise with respect to the 164-acre annexation. Further, none of the property owners in the annexation territories “has joined in this proceeding, suggesting that no one believed that the proposed annexations” would adversely impact “their environment or their quality of life.”

The draft generic environmental impact statement (DGEIS) and final generic environmental impact statement (FGEIS) were based on the zoning for “the annexation territories being changed” to permit “six floor apartment structures.” In the SEQRA findings statement (statement), the village acknowledged that “there may be impacts” to nearby residents “who are accustomed to a different community character….” The statement noted that “there would be future denser development in the annexation territories.”

The court found that certain individual petitioners had SEQRA standing, because they were “in sufficient proximity to the annexation territories” and given that there will be a change in the zoning “upon annexation from town…zoning to no zoning and since the village acknowledged that “there will be increased density following the annexations,” the individuals had “established an injury to their community’s character that is different in kind from that suffered by the general public….” An organization had standing because an individual with standing was a member of that organization and “the rural character” of the land was “germane” to that organization’s “stated purpose” to prevent “overdevelopment.” An organization which was not represented by an individual member who had standing, lacked standing.

Municipalities may have standing where they articulate a “specific municipal interest.” The allegations that certain municipalities will have a strain on municipal services and other impacts were “too speculative to confer standing.” The municipalities themselves did not allege that they own or have “responsibility for these facilities.” The court held that municipalities which adjoined the subject land had standing.

The court then held that the village and town board had met SEQRA’s requirements with respect to the 164-acre petition. The petitioners’ challenges to the village’s SEQRA analysis alleged that:

(1) the village board irrationally limited its review to a horizon of 10 years into the future rather than 25 years; (2) the village board irrationally viewed the annexation as a “no growth” producing event…[population will grow regardless of annexation] and without considering the possibility for in-migration from other populations outside of the village); and (3)…the village failed to take a hard look and provide mitigation measures with regard to…detrimental effects…the annexation will have on,…, (1) demographics; (2) community character; (3) water supply; (4) sewage load and capacity; (5) traffic; (6) social services; (7) fire services; and (8) educational services.

The petitioners also alleged that the village should have used an 8 percent annual population growth rate instead of a 5.6 percent rate. They asserted that the village’s population growth projection is based solely from internal growth “without regard to in-migration ‘from other Satmar Hasidic [communities] or from the general, non-Hasidic population….’” The petitioners argued that, because “neighborhoods in Williamsburg and Borough Park are gentrifying, there is…little affordable housing and ‘higher in-migration to Kiryas Joel is reasonably foreseeable, especially if denser, more affordable housing is developed on the proposed annexed lands….’”

The village’s consultant contended that use of a 10-year projection is reasonable, since such time frame “‘can be reasonably projected and [is] validated by U.S. Census, which itself is taken every ten years’… and ‘projections beyond 10 years may become highly speculative’….” SEQRA requires analysis of “only potential significant environmental impacts that can be reasonably anticipated;” and b) “the ‘GEIS assumptions…are supported by historical data that shows Kiryas Joel’s growth was largely internal….’” The village’s expert argued that no “credible” sources or trends…suggested that “in-migration will increase in the future either with or without annexation…[and] speculation that annexation will open the floodgates of migration…does not require consideration or analysis in the GEIS.”

The court found that a 10-year horizon and a 5.6 percent annual growth rate was reasonable, citing a “county study” and “other population studies.” The court held that the projections of “in-migration growth” were rational and the aforementioned “newspaper editorial” was “rank speculation” that the motivation behind these annexations “is to provide more land to accommodate anticipated in-migration from outside of [the] county, rather than to…accommodate…internal growth.”

The SEQRA review took “almost two years” and included more than 13,000 pages of materials. The statement addressed how adverse environmental impacts “would be avoided and/or minimized” by “practical mitigation measures.” The statement addressed, inter alia, land use and zoning, demographics, community services, traffic and transportation, water supply, sewer service, thresholds for future environmental review, “growth-inducing and cumulative impacts….” The statement also considered “separate annexation petitions and the reasonable alternatives to the actions.”

Moreover, “all future actions would require further SEQRA compliance” and future projects must “comply with the village’s code, applicable federal, state and county laws” relating to real estate development. The court also noted that “the remaining…undeveloped land,” could accommodate additional housing units.

The court also held that a supplemental EIS (SGEIS) was unnecessary. A lead agency’s determination to require a SEIS is discretionary. Here, there were no changes to the petitions, “nor any change in circumstances,” and the village “concluded that no new credible information” emerged during the comment period that undermined the village’s assumptions.

The court then opined that “the requisite hard look was undertaken,” and “the village provided a reasoned elaboration for its determination.” Therefore, the SEQRA determination was neither arbitrary nor capricious. Moreover, the town board’s SEQRA findings were neither arbitrary nor capricious.

The court also dismissed claims based on violations of the Establishment Clause of the U.S. Constitution. Although the petitioners alleged “a generalized injury to their principled belief of separation of church and state, none have alleged an injury…related to the Establishment Clause that is direct, imminent or personal.” The court held that the petitioners lacked standing to assert an Establishment Clause claim and that even if they had standing, their challenge “would fail as a matter of law.”

“To prove that a facially-neutral government action violates the Establishment Clause, one must be able to show the absence of a neutral, secular basis for the action.” Here, “owners within the annexed territory” would receive “a secular municipal government structure and…services.” Furthermore, although most of the village’s residents belong to the same religious community, that “does not extinguish the secular purpose of the annexation.” Additionally, the petitioners did not address how the principal effect of the annexation advances religion and/or fosters “an excessive government entanglement with religion.”

The petitioners also argued that the annexation would cause public injury by “improperly drawing political boundaries based on religious criteria;” “wasting the town’s resources by the loss of jurisdiction over assessed real property;” and “otherwise resulting in irreparable and imminent injury.” A “GML §51 claim ‘lies only’” when the alleged wrongful acts “are fraudulent, or a waste of public property,” i.e., they represent use of public property or funds “‘for entirely illegal purposes.’”

For petitioners to have standing under GML §51, “they must articulate…special or unique damages that are different…from the public at large.” The individual petitioners failed to allege such facts and an organizational petitioner was “a not-for-profit corporation” that did “not allege to be a taxpayer in the town.” The petitioners had also failed to provide facts sufficient to show “waste or public injury.” Since the court dismissed claims that the respondents violated the state annexation laws, such claims could not support the GML §51 claim. The claim that annexation could decrease the town’s tax base was “speculative.” Tax revenue decreases may be offset by decreases in “the cost of services that the town is required to provide.”

Moreover, “GML §51 is not a vehicle for correcting technical or procedural irregularities by governmental bodies, or providing a platform for individuals to disagree with decisions made by governing bodies….” “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’….” That would “‘burden the courts with litigation, without increasing the efficiency of local administration’….” Furthermore, the petitioners had only alleged that the governmental vote for the annexation “was illegal.” They did not allege “that the governmental action was fraudulent, collusive, or motivated by personal gain, as required by the statute….” Thus, the court dismissed the GML §51 claims, as well as the petitioners’ Article 78 claims based on the town code’s standard of ethics.

Matter of Village of South Blooming Grove v. Village of Kiryas Joel Board of Trustees, 7410/2015, NYLJ 1202770245515, at *1 (Sup., OR, Decided Oct. 11, 2016), Gretchen Walsh, J.

Land Use—Environmental—Opposition to Annexation Allegedly Based on Anti-Semitism—Respondents Accused of Seeking Religious Segregation—SEQRA—Standing—Supplemental EIS Not Required—Establishment Clause and Taxpayer Claims Dismissed

The “main issue in this case,…is whether [a] village Board and Town Board…took the requisite hard look and provided reasoned elaborations for why they found that there would be no significant adverse environmental effects associated with [a] 164 acre annexation petition [164 acre petition].” The New York State Constitution provides that “[n]o 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….”

This case involved the propriety of decisions by “the Town Board of Monroe (town board or town), and the Board of Trustees of the village of Kiryas Joel (village board or village), that approved the annexation of approximately 164 acres of land from the town…to the village….” Each municipality had determined that “the 164 acre annexation was in the over-all public interest and there would be no detrimental environmental impacts under the State Environmental Quality Review Act (SEQRA) associated with it.” The petitioners also asked the court to consider the over-all public interest of “a prior annexation petition involving an approximate 507 acre annexation territory (of which the 164 acres is wholly encompassed)….” Except for considering “whether the 507 annexation petition [507 petition] substantially complied with the procedural requirements of the General Municipal Law (GML),” the court severed and stayed all other claims by petitioners concerning the 507 acre petition, since there is a “pending special proceeding before the Appellate Division…, involving the village’s challenge to the town board’s determination that the 507 acre…petition was not in the over-all public interest so that a judicial determination may be made over whether or not” the 507 acre petition “is in the over-all public interest (the ‘special proceeding’).”

The respondents argued that “opposition to the annexation petitions [petitions]” is “ driven by anti-Semitism.” The petitioners countered that “the annexations themselves are the result of the village’s desire to engage in segregation.” Although there may have been “discriminatory motives behind certain opponents to the annexations, the essence of this case is…a religion-neutral dispute” between those seeking to retain the current zoning, i.e., low density and rural character, as against others who sought “to change municipal boundaries,” which would likely alter “the zoning and density…of the annexation territories.”

Although annexation will “lead to higher density,” the subject SEQRA actions involve “a change of municipal boundaries” to include the 164 acres as “part of the village rather than the town.” The lack of a “concrete injury” from this boundary change and “the rational basis for the assumptions employed,” made it difficult to find “that the requisite hard look was not taken, particularly since any future rezoning or…projects would be the subject of further SEQRA review, and if necessary, court appeal.”

The petitions were allegedly “driven by the village” to more than double its size, “in order to induce a mass migration of residents from the Hasidic Jewish Community in Brooklyn.” A newspaper editorial asserted that annexation could remedy the village’s housing shortage.

The annexation petitioners stated that they wanted “their properties annexed…to obtain village services that were not provided by the town,” e.g., “water and sewer, sidewalks, street lighting, fire, police,” ambulance and bus services. Although the village encouraged the annexation petitioners, the court did not view the annexation petitioners as merely people trying to further the village’s goal of providing housing for its internal growth and to support “a mass migration” from Brooklyn Hasidic communities. “Not a single property owner who did not sign the…petitions but who resides in the annexation territories [joined] this action as a petitioner, despite the fact that only a slight majority of the combined assessed valuations of the properties in the annexation territories were signatories to the petitions.”

The first petition “sought the annexation of 507 acres of land from the town.” A second petition had been filed seeking “the annexation of a 164 acre subarea of the 507 acres sought in the 507 acre…petition.” Although the petitioners argued that there had been “an inadequate SEQRA review by the town and village boards for the 164 acre…petition and by the village board for the 507 acre…petition, petitioners also asserted” that the petitions were invalid because they violated GML §§703 and 705, “since their sole purpose was to upzone the annexation territories;…the town and village boards improperly determined that the 164 acre…petition was in the over-all public interest and that the village board improperly determined that the 507 acre…petition was in the over-all public interest; and…the decisions approving the 164 acre…petition violate the primary jurisdiction rule since the 507 acre annexation was filed prior in time and the proceedings with regard to it had to have been completed first prior to any consideration of the 164 acre petition.”

It is permissible “to proceed with simultaneous annexation petitions involving the overlapping or contiguous property….” and “several petitions to annex territories contiguous to each other may be entertained simultaneously.” Here, the court found “no prior jurisdiction issue,” since both petitions “are seeking to annex town…land to the village….” The voters had “voted in favor of the 164 acre annexation.” The court opined that such vote would not “invalidate a subsequent vote involving this same 164 acre territory to the extent it was within the 507 acre…petition.”

The court dismissed challenges to the village and town’s “determinations of the 164 acre…petition” and to the village’s “over-all public interest determination” concerning the 507 acre petition. GML §711(4) provides that “[i]f after the hearings,” the municipalities agree “that an annexation is or is not in the over-all public interest, that determination is final and conclusive….” Accordingly, the court held that the favorable over-all public interest decision concerning the 164-acre annexation was neither arbitrary nor capricious. If “municipalities do not agree that the annexations are in the over-all public interest,” any “other affected municipality may apply to the Appellate Division…to determine whether the annexation is in the over-all public interest.”

Here, after the town board’s “negative over-all public interest finding with regard to the 507 acre…petition,” the “village initiated the special proceeding.” Since the issue of the appropriateness of the village board’s positive over-all public interest finding and the town board’s negative over-all public interest finding is before the Appellate Division, the court dismissed the claims regarding those issues.

The court severed and stayed challenges to the village board’s SEQRA findings as to the 507-acre petition. The court’s “analysis” of such SEQRA findings “would…invade the province of the Appellate Division in its review of the over-all public interest.” Judicial precedent held that “whether or not an annexation is in the over-all public interest is closely tied to the decision whether the project is in the public interest under SEQRA….” The court also dismissed claims against the NYS Department of Environmental Conservation with regard to the 507-acre petition, based on the petitioners’ “lack of standing and ripeness.” The court also held that the petitions substantially complied with GML §§703 and 705(1)(a), (b), (c) and (d).

The standard for SEQRA standing requires that a petitioner demonstrate “injury in fact—i.e., that petitioner would suffer direct harm, injury that is in some way different in kind or degree from that of the public at large; and…that the interest or injury asserted falls within the zone of interest sought to be protected or promoted by the statute under which the governmental action was taken….” The respondents argued that since “no specific rezoning and no specific project is being proposed”: at this time. The respondents argued that “the only people/entities with standing to challenge the SEQRA review” are “the affected municipalities…and the property owners in the annexation territories.”

The town found that “there would be significant detrimental environmental effects with the 507 acre annexation.” However, it found otherwise with respect to the 164-acre annexation. Further, none of the property owners in the annexation territories “has joined in this proceeding, suggesting that no one believed that the proposed annexations” would adversely impact “their environment or their quality of life.”

The draft generic environmental impact statement (DGEIS) and final generic environmental impact statement (FGEIS) were based on the zoning for “the annexation territories being changed” to permit “six floor apartment structures.” In the SEQRA findings statement (statement), the village acknowledged that “there may be impacts” to nearby residents “who are accustomed to a different community character….” The statement noted that “there would be future denser development in the annexation territories.”

The court found that certain individual petitioners had SEQRA standing, because they were “in sufficient proximity to the annexation territories” and given that there will be a change in the zoning “upon annexation from town…zoning to no zoning and since the village acknowledged that “there will be increased density following the annexations,” the individuals had “established an injury to their community’s character that is different in kind from that suffered by the general public….” An organization had standing because an individual with standing was a member of that organization and “the rural character” of the land was “germane” to that organization’s “stated purpose” to prevent “overdevelopment.” An organization which was not represented by an individual member who had standing, lacked standing.

Municipalities may have standing where they articulate a “specific municipal interest.” The allegations that certain municipalities will have a strain on municipal services and other impacts were “too speculative to confer standing.” The municipalities themselves did not allege that they own or have “responsibility for these facilities.” The court held that municipalities which adjoined the subject land had standing.

The court then held that the village and town board had met SEQRA’s requirements with respect to the 164-acre petition. The petitioners’ challenges to the village’s SEQRA analysis alleged that:

(1) the village board irrationally limited its review to a horizon of 10 years into the future rather than 25 years; (2) the village board irrationally viewed the annexation as a “no growth” producing event…[population will grow regardless of annexation] and without considering the possibility for in-migration from other populations outside of the village); and (3)…the village failed to take a hard look and provide mitigation measures with regard to…detrimental effects…the annexation will have on,…, (1) demographics; (2) community character; (3) water supply; (4) sewage load and capacity; (5) traffic; (6) social services; (7) fire services; and (8) educational services.

The petitioners also alleged that the village should have used an 8 percent annual population growth rate instead of a 5.6 percent rate. They asserted that the village’s population growth projection is based solely from internal growth “without regard to in-migration ‘from other Satmar Hasidic [communities] or from the general, non-Hasidic population….’” The petitioners argued that, because “neighborhoods in Williamsburg and Borough Park are gentrifying, there is…little affordable housing and ‘higher in-migration to Kiryas Joel is reasonably foreseeable, especially if denser, more affordable housing is developed on the proposed annexed lands….’”

The village’s consultant contended that use of a 10-year projection is reasonable, since such time frame “‘can be reasonably projected and [is] validated by U.S. Census, which itself is taken every ten years’… and ‘projections beyond 10 years may become highly speculative’….” SEQRA requires analysis of “only potential significant environmental impacts that can be reasonably anticipated;” and b) “the ‘GEIS assumptions…are supported by historical data that shows Kiryas Joel’s growth was largely internal….’” The village’s expert argued that no “credible” sources or trends…suggested that “in-migration will increase in the future either with or without annexation…[and] speculation that annexation will open the floodgates of migration…does not require consideration or analysis in the GEIS.”

The court found that a 10-year horizon and a 5.6 percent annual growth rate was reasonable, citing a “county study” and “other population studies.” The court held that the projections of “in-migration growth” were rational and the aforementioned “newspaper editorial” was “rank speculation” that the motivation behind these annexations “is to provide more land to accommodate anticipated in-migration from outside of [the] county, rather than to…accommodate…internal growth.”

The SEQRA review took “almost two years” and included more than 13,000 pages of materials. The statement addressed how adverse environmental impacts “would be avoided and/or minimized” by “practical mitigation measures.” The statement addressed, inter alia, land use and zoning, demographics, community services, traffic and transportation, water supply, sewer service, thresholds for future environmental review, “growth-inducing and cumulative impacts….” The statement also considered “separate annexation petitions and the reasonable alternatives to the actions.”

Moreover, “all future actions would require further SEQRA compliance” and future projects must “comply with the village’s code, applicable federal, state and county laws” relating to real estate development. The court also noted that “the remaining…undeveloped land,” could accommodate additional housing units.

The court also held that a supplemental EIS (SGEIS) was unnecessary. A lead agency’s determination to require a SEIS is discretionary. Here, there were no changes to the petitions, “nor any change in circumstances,” and the village “concluded that no new credible information” emerged during the comment period that undermined the village’s assumptions.

The court then opined that “the requisite hard look was undertaken,” and “the village provided a reasoned elaboration for its determination.” Therefore, the SEQRA determination was neither arbitrary nor capricious. Moreover, the town board’s SEQRA findings were neither arbitrary nor capricious.

The court also dismissed claims based on violations of the Establishment Clause of the U.S. Constitution. Although the petitioners alleged “a generalized injury to their principled belief of separation of church and state, none have alleged an injury…related to the Establishment Clause that is direct, imminent or personal.” The court held that the petitioners lacked standing to assert an Establishment Clause claim and that even if they had standing, their challenge “would fail as a matter of law.”

“To prove that a facially-neutral government action violates the Establishment Clause, one must be able to show the absence of a neutral, secular basis for the action.” Here, “owners within the annexed territory” would receive “a secular municipal government structure and…services.” Furthermore, although most of the village’s residents belong to the same religious community, that “does not extinguish the secular purpose of the annexation.” Additionally, the petitioners did not address how the principal effect of the annexation advances religion and/or fosters “an excessive government entanglement with religion.”

The petitioners also argued that the annexation would cause public injury by “improperly drawing political boundaries based on religious criteria;” “wasting the town’s resources by the loss of jurisdiction over assessed real property;” and “otherwise resulting in irreparable and imminent injury.” A “GML §51 claim ‘lies only’” when the alleged wrongful acts “are fraudulent, or a waste of public property,” i.e., they represent use of public property or funds “‘for entirely illegal purposes.’”

For petitioners to have standing under GML §51, “they must articulate…special or unique damages that are different…from the public at large.” The individual petitioners failed to allege such facts and an organizational petitioner was “a not-for-profit corporation” that did “not allege to be a taxpayer in the town.” The petitioners had also failed to provide facts sufficient to show “waste or public injury.” Since the court dismissed claims that the respondents violated the state annexation laws, such claims could not support the GML §51 claim. The claim that annexation could decrease the town’s tax base was “speculative.” Tax revenue decreases may be offset by decreases in “the cost of services that the town is required to provide.”

Moreover, “GML §51 is not a vehicle for correcting technical or procedural irregularities by governmental bodies, or providing a platform for individuals to disagree with decisions made by governing bodies….” “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’….” That would “‘burden the courts with litigation, without increasing the efficiency of local administration’….” Furthermore, the petitioners had only alleged that the governmental vote for the annexation “was illegal.” They did not allege “that the governmental action was fraudulent, collusive, or motivated by personal gain, as required by the statute….” Thus, the court dismissed the GML §51 claims, as well as the petitioners’ Article 78 claims based on the town code’s standard of ethics.

Matter of Village of South Blooming Grove v. Village of Kiryas Joel Board of Trustees, 7410/2015, NYLJ 1202770245515, at *1 (Sup., OR, Decided Oct. 11, 2016), Gretchen Walsh, J.