In re the City of Auburn

79 A.D.2d 1104, 435 N.Y.S.2d 853, 1981 N.Y. App. Div. LEXIS 10052

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 23, 1981
• Status: Published

Opinion

Report of Referee unanimously confirmed, without costs, and judgment granted in favor of petitioner adjudging that the annexation is in the over-all public interest. Memorandum: This application by petitioner, City of Auburn, and intervener, Board of Education of the Enlarged City School District of the City of Auburn (Board), seeks annexation to the City of Auburn of certain territory within the Town of Fleming pursuant to section 712 of the General Municipal Law. The subject property consists of a 50-acre tract of land contiguous to the southerly boundary of the city on which is located the Auburn Comprehensive High School. The school is a combination of three former public high schools and one parochial high school. It services the entire City of Auburn and the Towns of Sennett, Owasco and Fleming with an approximate 2,250 student enrollment of whom 75 to 80% are residents of the City of Auburn. The property is tax exempt and provides no tax revenues to the city; consequently annexation will not result in any tax loss to the town. Hearings held by Justices Robert E. White, Marshall E. Livingston and Elizabeth W. Pine, duly designated by this court as Referees herein, provide a complete and accurate record for review. The Referees concluded that the proposed annexation was in the over-all public interest and recommended its approval. There is no dispute as to the factual background set forth in the agreed statement of facts. After reviewing the relevant facts, the Referees found that the proposed annexation would improve the over-all quality and quantity of police and fire protection at the high school. The Referees’ report is advisory only with this court retaining exclusive responsibility to judge the proposed annexation by the sole relevant criteria of “over-all public interest” (City of Batavia v Town of Batavia, 45 AD2d 203, 204). Upon our review of the record, the petition, the agreed statement of facts and the Referees’ report, we find that the proposed annexation is in the over-all public interest for the reasons set forth in the Referees’ report (Matter of Common Council of City of Gloversville v Town Bd. of Town of Johnstown, 32 NY2d 1; City of Batavia v Town of Batavia, supra). The school district has agreed to continue making payments for its share of the bonding expenses until completion of the amortization. Inasmuch as this agreement is contained in the Referees’ report which is herein confirmed, we see no need for a separate order requiring such payment. Since the subject premises are uninhabited, a special election on approval of the annexation as provided in section 713 of the General Municipal Law is dispensed with (City of Batavia v Town of Batavia, supra, p 206). (Proceeding pursuant to General Municipal Law.) Present — Cardamone, J. P., Hancock, Jr., Callahan, Doerr and Moule, JJ.