SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE, NINTH JUDICIAL DISTRICT ENVIRONMENTAL CLAIMS PART VILLAGE OF SOUTH BLOOMING GROVE et al., Petitioners, Index No. 7410/2015 Proceeding No. 1 For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules ~ against — VILLAGE OF KIRYAS JOEL BOARD OF TRUSTEES etal., Hon, Francesca E. Connolly Respondents, EMANUEL LEONOROVITZ et al., Additional Respondents. PRESERVE HUDSON VALLEY etal, Petitioners/Plaintifts, Index No.: 8118/2015 Proceeding No. 2 - against - ‘TOWN BOARD OF THE TOWN OF MONROE et al., Respondents/Defendants. RESPONDENTS BOARD OF TRUSTEES OF THE VILLAGE OF KIRYAS JOEL AND VILLAGE OF KIRYAS JOEL’S MEMORANDUM OF LAW IN OPPOSITION TO THE AMENDED VERIFIED PETITIONS AND COMPLAINTS AND IN SUPPORT OF SUMMARY JUDGMENT. COMPLAINTS AND IN SUPPORT OF SUMMARY JUDGMENT WHITEMAN OSTERMAN & HANNA LLP Attomeys for Respondents Village Board of the Village of Kiryas Joel and Village of Kiryas Joel ‘One Commerce Plaza ‘Albany, New York 12260 (518) 487-7600 Of Counsel: John J. Henry, Esq. Michael G. Sterthous, Esq. Robert $. Rosborough IV, Esq.TABLE OF CONTENTS PRELIMINARY STATEMENT ... STATEMENT OF FACTS A. The Village’s SEQRA Review .. B, The Village Board’s Municipal Annexation Law Review .. C. The Village Board's Approval of the 164-Acre Annexation.. D. The Town Board’s Approval of the 164-Acre Annexation Petition. E, These CPLR Article 78 Proceedings... ARGUMENT .. POINTI PETITIONERS LACK STANDING TO CHALLENGE THE SEQRA REVIEW, A. The PHY Petitioners Lack Standing. B, The Municipal Petitioners Lack Standing..... POINTIL PETITIONERS’ SEQRA CLAIMS FAIL.. A. The Village Board’s SEQRA Review Comports with the Very Purpose of SEQRA. .. 28 B, The Village Board’s Preparation of a Generic Environmental Impact Statement for the Annexation Actions was Rational.. ww BL 1, The Village Board Did Not Impermissibly Segment its SEQRA Review... 33 2. The Village Board Was Not Required to Prepare a SGEIS. 36 C. The Village Board’s Use of a Ten-Year Review Horizon was Rational .. 38 D. The Village Board’s Growth Projections are Rationally Supported by the Record ...... 43 E, The Village Board’s Analysis of Potential Adverse Impacts to Water, Sewer, Traffic, and Community Character was Rational... 44Petitioners’ Proposed Mitigation Measures of Rejecting the Annexation Outright or Setting Artificial Limitations on Development are Not Required Under SEQRA. G. The Village Board Articulated a Reasoned Elaboration of its Determination of Significance. 52, POINT IIL THE NYSDEC COMMISSIONER RATIONALLY DETERMINED THAT THE VILLAGE BOARD OF KIRYAS JOEL SHOULD SERVE AS THE SEQRA LEAD AGENCY FOR THE REVIEW OF THE PROPOSED ANNEXATION 53 A. The Anticipated Impacts of the Action Being Considered are Primarily of Local Significance to the Village... B. The Village Board has the Broadest Governmental Powers for Investigation of the Impact(s) of the Proposed Action . 59 C. The Village Board has the Greatest Capability for Providing the Most Thorough Environmental Assessment of the Proposed Action. 61 POINTIV PHV PETITIONERS’ ESTABLISHMENT CLAUSE CLAIMS SHOULD BE DISMISSED ..... 62 A, The PHY Petitioners Lack Standing to Challenge the Determinations Approving the 164-Acte Annexation Under the Establishment Clause ... 63 B. Petitioners’ Establishment Clause Claims are Barred by Supreme Court, New York Court of Appeals, and Second Circuit Precedent... sense 65 1, The Town Board’s and Village Board’s Annexation Decisions Reflect the Neutral Applications of a Generally Applicable Law That Do Not Violate the Establishment Clause... 2. The Annexation Decisions Satisfy Lemon v. Kurtzman .. a. The Purpose of the Annexation Decisions is Secular b, The Primary Effect of the Annexation Decisions Neither Advances Nor Inhibits Religio c. The Annexation Decisions Will Not Result in Excessive Entanglement Between the Government and Religio POINT V _ PHV PETITIONERS’ GENERAL MUNICIPAL LAW § 51 CLAIMS SHOULD BE DISMISSED 72 iiA. PHY Petitioners Lack Standing to Assert General Municipal Law § 51 Claims. B. PHY Petitioners’ GML § 51 Claims Fail as a Matter of Law POINT VI THIS COURT LACKS SUBJECT MATTER JURISDICTION TO CONSIDER, AND PETITIONERS LACK STANDING TO CHALLENGE, THE TOWN BOARD'S AND VILLAGE BOARD'S DETERMINATIONS OF THE OVERALL PUBLIC INTEREST. A. This Court Lacks Subject Matter Jurisdiction to Consider Challenges to the Town Board's and Village Board’s Determinations of the Overall Public Interest... B. __ Petitioners Lack Standing to Challenge the Town Board’s and Village Boar Determinations under the Municipal Annexation Law: POINT VII_ PETITIONERS ARE NOT AGGRIEVED BY THE DISAPPROVAL OF THE. 507-ACRE ANNEXATION .. = POINT VIII PETITIONERS’ CLAIMS THAT THE ANNEXATION PETITIONS DO NOT COMPLY WITH THE REQUIREMENTS OF THE ANNEXATION LAW, FALL... A. The Village Did Not Carve Parcels Out of the Annexation Territory. B, The 164-Acre Annexation Petition Did Not Contain Material Errors. C. The $07-Acre Annexation Petition Did Not Contain Material Errors.. POINTIX THE PRIOR JURISDICTION RULE DOES NOT APPLY WHERE THE ANNEXATION PETITIONS AT ISSUE PROPOSE ANNEXATION TO THE SAME MUNICIPALITY, 89 POINT X — PHV PETITIONERS’ CLAIM UNDER THE TOWN OF MONROE ETHICS LAW SHOULD BE DISMISSED POINT XI FAILED TO FILE A NOTICE OF CLAIM ILLAGE PURSUANT TO CPLR 9802 93 CONCLUSION... iiiPRELIMINARY STATEMENT Respondents Village Board of the Village of Kiryas Joel and the Village of Kiryas Joel (collectively the “Village” or “Kiryas Joel”) submit this memorandum of law in opposition to the “Amended Petitions and Complaints filed by Petitioners Village of South Blooming Grove, Town of Blooming Grove, Village of Monroe, Village of Woodbury, Town of Woodbury, Village of Harriman, Village of Comwall-on-Hudson, County of Orange (on behalf of itself and Orange County Sewer District No. 1), Town of Chester, Monroe Joint Fire District, and The Black Rock Fish and Game Club of Comwall, Ine, (collectively, the “Municipal Petitioners”) in Proceeding No. 1, and Petitioners-Plaintifis Preserve Hudson Valley, John Allegro, Emily Convers, and Louis M. Cerqua (collectively, the “PHV Petitioners”) in Proceeding No. 2. The Village also seeks summary judgment dismissing all plenary and declaratory judgment claims, particularly, the first, second, and causes of action, asserted in the PHV Petitioners’ Amended Petition and Complaint, ‘At issue here is the annexation of 164 acres of land from the Town of Monroe (the “Town”) to the Village. That annexation was approved by the governing boards of both the Village and the Town in accordance with the provisions of General Municipal Law Article 17 (the “Annexation Law”), Under General Municipal Law §711(4), the consent of both municipalities is “final and conclusive” as to the question of whether the annexation is in the overall public interest, Both the PHV Petitioners and the Municipal Petitioners nonetheless challenge the environmental review process conducted under the State Environmental Quality Review Act (“SEQRA”) (Article 8 of the Environmental Conservation Lavy, and its implementing regulations at 6 NYCRR part 617) for the annexation, None of the Petitioners in either proceeding,however, has standing to do so, The Municipal Petitioners are unaffected by the change in ‘municipal jurisdiction over land that is not within any of their respective territories, nor is there any project or construction planned that could possibly affect the Municipal Petitioners or any of their residents, New York law is clear that annexation is a process between the two affected municipalities, and the Municipal Petitioners are strangers to that process. The record here also reveals no environmental impacts on the Municipal Petitioners resulting from the change in governmental jurisdiction over the 164 acres. Likewise, the PHY Petitioners do not reside or own property within the 164 acres and are thus unaffected by the change in governmental jurisdiction over land in which they do not reside. ‘The PHV Petitioners will receive the same governmental services that they always have and be govemed by the same municipality that they always were, Allowing either set of Petitioners to pursue their claims here would allow essentially anyone within the same county to challenge a SEQRA review process for an annexation, regardless of their failure to plead and prove a specific environmental impact distinet from the public at large. New York law does not countenance such a result, A review of the PHV Petitioners’ Amended Petition and Complaint reveals the true motive for Petitioners’ attacks here: they do not want to see the Village extend its borders because the Village is composed largely of Satmar Hasidic Jewish residents. Their Amended Petition and Complaint itself alleges that “the Satmars” “believe that they are above or separate from the rules and regulations” (PHV Amended Petition and Complaint, verified on December 4, 2015 [“PHV Pet”], 153), and that the annexation should be set aside because it expands the borders of a Village whose residents are largely Satmars (id. 234-244). Even the Municipal Petitioners note that their real concern is over the “continued exponential growth of the SatmarHasidic community.” (Municipal Pets’ MOL, at 16). Neither SEQRA nor the Annexation Law contemplates consideration of the religious backgrounds of residents in the review of an annexation, Indeed, just as the courts do not allow a party to mount an attack on a SEQRA. process in order to protect its economic interests, Petitioners should not be permitted to use SEQRA as a guise to contest an annexation based on concerns over the religious beliefs or cultural practices of the members of a community, Such concerns are not within the ambit of the governing statutes. In any event, the record conclusively shows that the Village fully discharged its duties as SEQRA Iead agency. Judicial review of the Village’s SEQRA determination is quite limited. A reviewing court looks only to whether the lead agency identified the relevant areas of potential environmental impact, took a “hard look” at those impacts, and rendered a “reasoned elaboration” for its determination. SEQRA is governed by a “rule of reason” as to the extent of and to which any particular impact needs to be reviewed, and a reviewing court may not substitute its judgment for that of the lead age ye ‘A review of the record here, including the Village’s comprehensive, 49-page SEQRA findings statement, confirms that the Village fully discharged its obligations. Notably, unlike other annexations, there is no specific development project or construction contemplated in connection with the annexation. In such circumstances, the courts have upheld the issuance of a negative declaration, limiting the extent of review to the annexation itself, and concluding the SEQRA process without an Environmental Impact Statement (“EIS”). See e.g. Matter of City of ‘Middletown v Town Bd, of Town of Wallkill, 54 AD3d 333 (2d Dept 2008); Cross Westchester Dev. Corp, v Town Bd. of Town of Greenburgh, 141 AD2d 796 (2d Dept 1988). Nonetheless,the lage here prepared a comprehensive Generic Environmental Impact Statement (“GEIS”), which reviewed all of the potential impacts of the annexation. Petitioners’ claims that the GEIS should be set aside because it only considered a ten-year future period should be rejected. The Village had discretion to determine the review period to be ‘used and a ten-year review period was reasonable, In fact, the courts have upheld the use of ten- year review periods (see e.g. Matter of Chinese Staff & Workers’ Assn. v Burden, 88 AD3d 425, 429 [Ist Dept 2011}, affd 19 NY3d 922 (2012), Petitioner Orange County has itself used a ten year projection for its own planning studies (TVIR. 5986-5987; Affidavit of Frederick P. Wells, sworn to January 22, 2016 [Wells Aff.”], §¥ 16-19),' and going beyond ten years would require excessive speculation a to future growth and development of the annexation territory Accepting Petitioners’ claims here would require every municipality's comprehensive plan, and like planning documents, to extend twenty years or more—a result not contemplated by SEQRA ‘or common practice. ‘The record also establishes that the Village took a hard look at all potential environmental impacts of the annexation, including potential impacts on water and air resources, traffic impacts, noise impact, impacts on wildlife resources and every other potential impact over the ensuing ten years, Petitioners’ SEQRA claims distill to the premise that they disagree with the reasoned conclusions reached by the Village and its consultants. Such a difference of opinion, however, is not a legal basis for overturning the Village's SEQRA findings. With respect to any claims relating to the separate 507-aere annexation, such claims are not properly before this Court, Under the Annexation Law, when one of the two affected municipalities does not consent to an annexation (as happened with the 507-acre annexation), tations to the Town and Village Joint Administrative Record for these proceedings shall be referred to as “TVJR. __.”only the Appellate Division has authority to hear such claims in a proceeding commenced directly in that Court pursuant to General Municipal Law §712(1). Such a proceeding is currently pending before the Appellate Division, Second Department relating to the 507-acre annexation, and the Municipal Petitioners are parties to that proceeding, having been allowed to intervene. ‘As for the remaining claims, those fail as well. PHY Petitioners” attack on the annexation on Establishment Clause grounds fails because, among other things, it would require the Court to determine the religious beliefs of the residents of an area to be annexed and then disallow annexation if it is determined that the residents largely share the same religious beliefs. Any attack on the sufficiency of the petitions commencing the annexation also fails because the record confirms that the petitions complied with the procedural requirements of the Annexation Law. Accordingly, as shown below and supported by the affirmations of Gedalye Szegedin and Daniel A. Ruzow and affidavits of Frederick P, Wells and Thomas Cusack, all of the claims in both proceedings should be dismissed. STATEMENT OF FACTS On ot about August 20, 2014, a group of private property owners in the territory to be annexed presented a petition to the Village and the Town seeking to annex 71 tax lots, approximately 164 acres, from the Town to the Village (“164-aere annexation petition”). (TVJR. 725-898). The 164-acre annexation petition did not include any parallel proposals to develop or change the use of any of the annexation territory. Upon presentation of the annexation petition, the Village commenced to process and review the annexation petition in accordance with therequirements of the Annexation Law (see General Municipal Law [“GML"] Article 17) and SEQRA. ‘A, The Village’s SEQRA Review “After filing of the annexation petitions, the Village served its Notice of Intent to Serve as SEQRA Lead Agency for the 164-aere annexation action on the Town Board. (TVJR. 899-900). By resolution dated August 25, 2014, the Town Board consented to the Village Board serving as SEQRA lead agency for the 164-acre annexation action, (TVIR. 901). The Village Board then determined that the action was a Type I SEQRA action since it involved the annexation of more than 100 acres of land, and voluntarily committed to prepare a Draft Generic Environmental Impact Statement (“DGEIS") for the action that would assess the potential environmental impacts of certain hypothetical development scenarios post-annexation. (TVJR, 902-905). ‘Thereafter, the Village prepared a draft scope for the DGEIS and conducted a public scoping session to solicit comments on the draft scope. (TVIR. 906-915), Subsequent to the close of the public comment period, the Village issued a final scope for the DGEIS. (TVJR. 1342-1355). While the 164-acre annexation was pending, there was also a pending annexation process for 507 actes, which encompassed all of the 164 acres under consideration. (TVJR. 1-420), The ‘Town disputed whether it or the Village would be SEQRA lead agency for the 507-acre annexation, (TVIR. 437). In January 2015, the Commissioner of the New York State Department of Environmental Conservation (“NYSDEC”) issued his lead agency dispute determination identifying the Village as the lead agency for the 507-acre annexation petition, which had been filed with the Town and Village on or about December 31, 2013. (TVIR. 716- 724), As lead agency for both petitions, the Village Board determined that the most prudent and efficient way to complete the review of both the 164-aere and 507-acre annexation actions wouldbe to complete a single DGEIS that considered the full 507-acre annexation as the primary action and the 164-aere annexation as an alternative, The Village Board then passed a resolution on February 6, 2015 confirming its SEQRA lead agency role and issued a positive declaration of environmental significance, directing the preparation of a DGEIS for both the 164-acre annexation at issue here and a $07-acre annexation action.” (TVIR. 1359-1364). ‘The Village prepared a draft scope for the combined DGEIS. (TVIR. 1365-1378). On March 3, 2015, the Village conducted a second voluntary SEQRA public scoping session for input on the DGEIS scope and created an online document repository at http://www.ki- seqra.com/S07Actes/ so that all annexation-related and SEQRA documents would be publically available. (TVIR. 1380-2362). On March 20, 2015, after consideration of the scoping comments, the Village approved a final scope for the DGEIS. The final scope identified topics to be considered in the DGEIS such as growth inducing impacts, fiscal impacts, land use and development impacts, and school and other special district impacts, among other topics. (TVIR. 2363-2380). The Village Board thereafter, with the expert assistance of its consultants, prepared the DGEIS in accordance with the final scoping outline, considering the 507-aere annexation as the primary SEQRA action and the 164-acre annexation as an altemative action, (TVIR. 2438- 3254), The DGEIS provided the factual basis for the Village Board to consider the benefits and detriments of annexation as it applied to land use and zoning, demographics and growth, tax and 2 Because there was no specific development project or land use or zoning change for the annexation territory proposed with the petitions, only an adjustment of the Village’s politic boundaries, the Village Board would have been justified in issuing a negative declaration of envitonmental impact for the annexation action, See City of Middletown, 54 AD3d at 337; Cross Westchester Dev. Corp., 141 AD2d at 797. ‘The Village Board nevertheless voluntarily committed to prepare a GEIS for the action (rather than a site- or project-specific BIS) that would generally assess potential environmental impacts of certain hypothetical development scenarios post-annexation,property valuation, fiscal impacts on the school districts, community services, traffic and transportation, natural resources, municipal water and sewer service, visual and historic resources, and alternatives. The Village Board conducted a voluntary public hearing on the DGEIS on June 10, 2015. (TVIR. 6910-7169). During the public comment period, which was extended until June 22, 2015, the Village Board received comments from over 4,500 commenters. (TVJR. 7170-11882). ‘After full consideration of all relevant public comments, the Village and its consultants prepared the Final Generic Environmental Impact Statement (“FGEIS"), which provided a summary of the substantive comments received and the lead agency's responses thereto, (VIR. 11890-12754), The Village Board issued the FGEIS for the proposed S07-aere and 164-acre annexation on or about August 14, 2015. (T'VIR. 11883-11889). On September 6, 2015, the ‘Village Bourd issued its SEQRA Findings Statement, finding that when potential environmental impacts of the annexations are weighed and balanced with social, economic and other considerations, both the 507-aere annexation action and the 164-acre annexation action avoid or minimize adverse environmental impacts to the maximum extent practicable, while providing for the basic needs of local area residents to have access to community services such as water, sewer, emergency, and other municipal services that would otherwise be unavailable, or at the very least difficult to access, without the annexation. (TVJR, 12960-13009). The Village Board’s Statement of Findings was filed, published, and distributed in accordance with SEQRA. B. ‘The Village Board’s Municipal Annexation Law Review Upon the acceptance and release of the DGEIS, the Town and Village deemed the annexation petitions complete and thereafter commenced the obligatory Annexation Law procedures. (TVJR. 2389). On or about May 1, 2015, the Town and Village mailed andpublished notice of the annexation petitions in accordance with GML § 704 and scheduled the joint hearing on the annexation petitions to be coordinated with the SEQRA public hearing on the Draft GEIS on June 10, 2015. (TVJR. 2391, 2398-2437). ‘On June 10, 2015, the Town presided over the joint hearing with the Village on the annexation petitions pursuant to GML § 705 and received testimony concerning the sufficiency of the petition and the over-all public interest of the annexation, (TVJR. 6910-7169). The Village Board also accepted public comment on the DGEIS at this hearing. (Affidavit of Daniel A. Ruzow, sworn to January 22, 2016 [“Ruzow Aff.”], 49). Pursuant to GML § 711(1), the conclusion of the joint hearing on the annexation petitions commenced the ninety-day review period for the Village Board and Town Board to determine whether the annexation petitions were consistent with the provisions of the Annexation Law and whether the proposed 507-acre and 164-acre annexations were in the overall public interest. ‘The Village Board and its consultants performed an exhaustive review of all testimony received during the joint hearing, Each comment and objection that related to petition sufficiency was identified, cataloged and summarized. An Information Request, based on the wtitten objections to the sufficiency of the petitions, was sent to counsel for the annexation petitioners. (TVIR. 12914-12927). The annexation petitioners, through their counsel, responded to the Information Request with detailed responses, documentary evidence, and affidavits addressing each issue raised in the written objections. (TVIR. 12928-12958, 13421-13452). The ‘Village Board and its consultants prepared an analysis of the petition sufficiency issues based on the annexation petitioners’ response and the Village Board's own independent review. (TVJR- 13274-13306).C. The Village Board’s Approval of the 164-Acre Annexation On September 6, 2015, the Village Board adopted two resolutions and signed a written decision and findings unanimously approving the 507-acre annexation petition and the 164-acre annexation petition alternative. (TVJR. 13307-13312). With respect to the sufficiency of the annexation petition, the Village Board determined that, consistent with GML § 703(1), the 164- acre annexation petition specifically describes the territory proposed to be annexed, using a metes and bounds description, and states the approximate number of inhabitants of the annexation territory. (TVIR. 13013-13016, 13295-13306, 13311). Consistent with GML §703(2), the 164-acre annexation petition included signature pages signed by the owners of a majority in assessed valuation of the real property in the territory. Each signature page was authenticated by a witness as to the subscription thereof, (T'VJR. 727-729). Furthermore, consistent with GML § 703(3), the 164-aere annexation petition included a certification of the ‘Town Assessor responsible for the preparation of the Town's last preceding assessment roll attesting to the fact that the petition was signed by the owners of a majority in assessed valuation of the real property in the annexation territory. (VIR. 882-883). Based on its eonsideration of the annexation petition, the public testimony, the information presented by the annexation petitioners, and its own careful assessment of the underlying record, the Village Board determined that the 164-aere annexation petition substantially complied with the Annexation Law and that the annexation was in the overall public interest. (TVIR, 13016-13029). ‘The Village Board found both components of the “overall public interest” inquiry under GML § 711() satisfied: (A) that the benefits of the annexation outweigh any detriment; and (B) that the territory to be annexed and the Village into which it will be incorporated have the requisite unity of purpose and facilities to constitute a community. (Id.). Specifically, the 10Village Board found that the annexation will benefit the annexation territory by providing the territory with access to the Village’s municipal water system, public sewer service, enhanced public safety, fire, and emergency medical services, and upgraded transportation and pedestrian infrastructure, among other benefits, which are not otherwise readily available in the Town. (TVIR. 13017-13020). The Village Board determined that the annexation will benefit the Town by reducing its obligations to provide refuse pickup and snow removal, inerease Town revenues as a result of additional work under road maintenance agreements with the Village, decrease traffic, and reduce pressure on the Town's groundwater resourees. (TVJR. 13023-13024). The Village Board found that the 507-acre and 164-acre annexations will benefit the Village by providing it with additional territory for potential development of affordable housing and community buildings within the Village to accommodate the growing local population, and increasing the Village’s tax revenue, (TVIR. 13020-13023). ‘The Village Board also found that the annexation will ease development or redevelopment pressure on the existing Village territory, and will, at the same time, concentrate fature development within the Village, as opposed to having it sprawled out across the County. (TVIR. 13022). Such compact and walkable development focused in the areas where it already exists is precisely what the Orange County Comprehensive Plan and Southeast Orange County Land Use Study have lauded as consistent with smart growth principles, and will likely prevent suburban sprawl into the rural areas of the Town. (TVJR. 5995-5997; Ruzow Aff, Bx. A, at 22). ‘The Village Board also considered the effects of the annexation on the school districts, fire districts, and other district corporations serving the annexation territory, and determined that the ulannexations will improve provision of these services to the annexation territory without compromising their continued provision in the remainder of the Town. (T'VJR. 13025-13028). ‘After thorough deliberation, the Village Board passed a resolution, dated September 6, 2013, approving 164-a0re annexation,’ (TVIR. 13310-13312). The Village’s Resolution and Order contained a Written Decision and Findings discussing the Village’s basis and reasoning {for its determinations, including both sufficiency and overall public interest. (TVR. 13010- 13030). ‘The Resolution and Order was duly filed with the clerks of the Village and the Town on the September 8, 2015, along with copies of the complete record. D. ‘The Town Board’s Approval of the 164-Acre Annexation Petition On September 8, 2015, the Town Board adopted its SEQRA Statement of Findings and passed a single resolution approving the 164-acre annexation by a 4-1 supermajority vote, (TVIR. 13314-13348). Upon information and belief, the Town Board filed its resolution, together withthe appropriate papers and documents in the offies of the Clerk of the Town and the Clerk of the Village, and the Clerk of the County on September 8, 2015. ‘The Town Board’s written decision provides over 14 pages of findings as to the benefits of the 164-acre annexation for the Village, the Town, and the annexation territory, and identifies no substantive detriments, (TVIR. 13325-13338). Specifically, the Town Board found (1) that the annexation will produce substantial benefits to the Village of Kiryas Joel that greatly outweigh any expected detriments; (2) that the annexation will cause numerous, substantial benefits to the annexation territory, and that any possible detriments such as increased taxes will be commensurate with improved public services; (3) that the overall the detriment from diminished tax revenue will be relatively small; and (4) that the annexation will move the Village > “The Village Board passed a second resolution, dated September 6, 2015, also approving the 507-area annexation. 12boundary out and around a cohesive community bringing the residents living there within the Village that defines their culture and lifestyle, rather than leaving them outside of that political boundary while fully within the existing cultural boundary. (1d. E, These CPLR Article 78 Proceedings Once both the Village Board and the Town Board approved the 164-acre annexation, that determination became “final and conclusive.” GML § 711(4). General Municipal Law § 713(1) requires a special election to be conducted of the voters in the territory to be annexed within ninety days of the filing of the annexation orders in the municipal clerks’ offices. Accordingly, at its October 5, 2015 meeting, the Town Board resolved to schedule the special election for November 9, 2015. (TVIR. 13552-13553). Petitioners then commenced these two CPLR Article 78 proceedings challenging the 164- acre annexation on of about October 2, 2015 and October 5, 2015, respectively. A mere nine days before the scheduled election, Petitioners sought a preliminary injunction to enjoin the special election and the effect of any local law passed to effectuate the 164-acre annexation, In & Decision and Order dated November 5, 2015, this Court stayed the effective date of any annexation local law passed by the Village Board to effectuate the 164-acre annexation during the pendency of these proceedings, and otherwise denied Petitioners’ motions for injunctive relief. ‘The Town’s special election was conducted on November 9, 2015, and the annexation was approved by an overwhelming majority of 40 to 12. (TVR, 13554-13556). The election ‘was thereafter certified by the Town Clerk on November 10, 2015. (TVJR. 13555). 13‘As shown below, both proceedings challenging the Town Board’s and Village Board’s determinations of the annexation petitions should be dismissed in their entirety.* .RGUMENT POINT I PETITIONERS LACK STANDING TO CHALLENGE THE SEQRA REVIEW SEQRA standing requires a petitioner to establish it would suffer an “injury that is in some way different from that of the public at large,” and that this harm falls within the zone of interest protected by SEQRA. See Matter of Sierra Club v Village of Painted Post, 26 NY3d 301, 310 (2015); Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 774 (1991); see also Matter of Shelter Is. Assn. v Zoning Bd. of Appeals of Town of Shelter Is., 57 AD3d 907, 908-909 (2d Dept 2008), Iv. part and denied in part 12 NY3d 797 (2009). This harm cannot be speculative; it must be direct and concrete. See New York State Assn. of Nurse ‘Anesthetists v Novello, 2 NY3d 207, 213 (2004); Matter of Port of Oswego Auth. v Grannis, 70 AD3d 1101, 1104 Gd Dept 2010) (“because petitioners fail to allege anything other than economic harm to themselves or speculative ecological injury to the general public, they lack standing”), lv denied 14 NY3d 714 (2010); Matter of Rent Stabilization Assn. of N.Y.C.. Inc. Miller, 15 AD3d 194, 194 (Ist Dept 2005) (speculative environmental harms—“a reduction in affordable housing and an increase in cases of lead poisoning”—no different than those potentially suffered by the public at large were insufficient to confer standing), lv denied 4 NY3d 709 (2005). + qn addition to opposing the Article 78 relief, the Village has also moved for summary judgment dismissing any declaratory relief claims. See e.g. Matter of Town of Woodbury-y County of Orange, 114 AD3d 951, 954 (24 Dept 2014) (“in the absence of a dispositive motion addressed to that cause of action seeking declaratory relief, that cause of action may not be summarily determined”), lv denied 24 NY3d 903 (2014). 14No Petitioner has standing here since none of the PHY Petitioners reside in or own land in the annexation territory and are thus unaffected by the change of municipal jurisdiction over land that they do not own or reside on, and the Municipal Petitioners are strangers to the annexation process between the Town and the Village. Furthermore, Petitioners are not impacted by the annexation itself, which will result merely in the redrawing of political boundaries. Instead, Petitioners posit that sometime in the next ten- or twenty-year period, there ‘vill be development of the annexation territory that could result in environmental impacts. Any development projects that may be proposed in the future, however, wil be subject to @ full site- specific environmental review, and Petitioners’ allegations of harm cannot even be assessed until itis known what may, or may not, be developed or built in the future. Petitioners’ claims of standing also ignore the fact thatthe property can be developed even if t remained in the Town, and, in fact, portions of the territory are already developed. AY The PHY Petitioners Lack Standing. ‘As this Court recognized in Matter of Commandeer Realty Assoc., Inc. v Allegro (49 Mise 34 891 [Sup Ct, Orange County 2015), standing to challenge an annexation action is limited to “owners of property within the area proposed to be annexed” who have the “statutory tight to receive formal notice of any joint public hearing on the [annexation] petitions.” Id. at 600-901; see also Matter of Farlow v Town Bd, of Town of Brookhaven, 92 AD2d 938, 938 Qd Dept 1983) (“We agree with Special Term that petitioners had no standing to commence the instant proceeding. A challenge to a governing board's determination that annexation is not in the over-all public interest must be initiated in the Appellate Division of the Supreme Court by an affected governing board.” [emphasis added]). It is undisputed that PHY Petitioners do not own any property ot reside within the territory proposed to annexed to the Village. (PHV 15‘Amended Petition, dated Dec. 4, 2015 [“PHV Pet”], §¥ 12, 16, 19). They were not entitled, under the Annexation Law, to formal notice of the joint public hearing on the annexation petitions, See GML §704(1) (requiring formal notice to be mailed to “each person or corporation owning teal property in such territory ... and to all persons residing in such territory qualified to vote for officers of the city, town or village”). PHV Petitioners, thus, lack standing to challenge the Town and Village Boards’ annexation determinations, and the SEQRA findings underlying them, under this Cour’s decision in Commander Realty and the Second Department's decision in Farlow. The PHV Petitioners instead rely on theit mere proximity to the boundaries of the annexation territory. Alleged proximity to the 507-acre annexation territory is clearly irrelevant as the only action subject to this challenge relates to the 164-acre annexation. See e.g. Tuxedo Land Trust, Inc. v Town Bd, of Town of Tuxedo, 112 AD3d 726, 728 (2d Dept 2013) (for SEQRA standing, “the relevant distance is the distance between the petitioner's property and the actual structure or development itself, not the distance between the petitioner's property and the property line of the site”). Moreover, where there is no development project or zoning action at issue, the presumption of injury sufficient to sustain standing based on proximity alone simply does not apply. See Matter of Save Our Main St, Bldgs. v Greene County Legislature, 293 ‘AD2d 907, 908 (3d Dept 2002), lv denied 98 NY2d 609 (2002). In any event, Petitioners wrongly rely on proximity as a ground for standing. As the Court of Appeals has held, “{¢Jhe status of neighbor does not ... automatically provide the entitlement, or admission ticket, to judicial review in every instance.” Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 414 (1987). Instead, “[t]he test is whether the neighbor is close enough to suffer some harm other than that 16experienced by the public generally and even where petitioner’s premises are physically close to the subject property, an ad hoe determination may be required as to whether a particular petitioner itself has a legally protectable interest so as to confer standing.” Matter of Oates v Village of Watkins Glen, 290 AD2d 758, 761 (34 Dept 2002) (internal quotation marks omitted) (finding that an individual petitioner did not have standing to bring SEQRA claims against a neighboring development, because the petitioner failed to allege a specific, cognizable harm distinct from the public at large). Petitioner Allegro alleges that his property is 550 feet from the boundary of the 507-acre annexation. (PHY Pet, 12). However, his property is 4,354 feet from the 164-acre annexation territory. (Affirmation of Gedalye Szegedin, dated January 22, 2016 [“Szegedin AM"), Ex. B) Similarly, Petitioner Convers” property is 8,600 feet from the 164-aere annexation territory. Id.) Petitioners Allegro and Convers, therefore, are not sufficiently close to the border of the 164-acre annexation territory to be entitled to an inference of injury in the absence of proof of actual harm. See ¢.g. Matter of Riverhead Neighborhood Preserv. Coalition, Ine. v Town of Riverhead Town Ba, 112 AD3d 944, 944-945 (2d Dept 2013) (no presumption at 1,300 feet); Matter of Gallahan vy Planning Bd. of City of Ithaca, 307 AD2d 684, 685 (3d Dept 2003) (no presumption at 700 feet), Iv denied 1 NY3d 501 (2003); Oates, 290 AD2d at 760-761 (no presumption at 530 feet); Matter of Buerger v Town of Grafton, 235 AD2d 984, 985 (3d Dept 1997) (no presumption at 600 feet) ly denied 89 NY2d 816 (1997); Matter of Concemed Citizens for Open Space, Inc. v City of White Plains, Index No. 14769/02, 2003 WL 22283389, *2 (Sup Ct, Westchester County ‘Aug. 8, 2003) (no presumption at 832 feet). Petitioner Cerqua’s property is adjacent to a portion of the 164-acre annexation territory. However, he nevertheless is not entitled to any inference that he will suffer a concrete injury-in- 7fact as a result of the approval of the 164-acre annexation based solely on such proximity. Petitioner Cerqua’s property is located in the Town of Woodbury, not the Town of Monroe, and thus he cannot claim that any of his municipal services, taxes, voting or other property rights will be impacted by the annexation action, See Matter of Clean Water Advocates of N.Y. Ine. v New York State Dept. of Envil. Conservation, 103 AD3d 1006, 1008 Gd Dept 2013) (no standing where petitioner “id not articulate any specific harm that she would suffer based on her proximity to the project”), lv denied 21 NY3d 862 (2013). Instead, Petitioner Cerqua’s only claims of harm attributed to the proximity of his property consist of conclusory allegations of “gestheties, visual concems, and community character” that may arise from future development within the 164-acre annexation territory (PHY Pet., 21). He does not and cannot allege any specific injury whatsoever ftom the annexation itself, Because these alleged conclusory general harms relate solely to speculative future use or development in the annexation territory, Petitioner Cerqua is not entitled to any presumption of standing merely because his property lies in close proximity to the boundary of a portion of the annexation territory. See Matter of Tuxedo Land Trust, Inc. v Town of Tuxedo, 34 Mise 34 1235(A), *4 (Sup Ct, Orange County 2012) (petitioners in the instant proceeding must demonstrate thatthe injuries were the result of [the SFQRA action}, not some other or prior alleged nonfeasance ot misfeasance”), aff sub, nom. 112 AD3d 726 (2d Dept 2013). Without a presumption of injury, the PH Petitioners must prove, not just allege, that they will suffer injury-in-fact stemming from the 164-aere annexation. See Matter of Save the ne Bush, Inc, v Common Council of City of Albany, 13 NY3d 297, 306 (2009); Matter of Piela Van Voris, 229 AD2d 94, 96 (34 Dept 1997) (“fallthough conclusory allegations [in the petition] are sufficient to state petitioner’s im of standing, they are lacking in probative value 18and will not themselves suffice to establish it” [emphasis in original]). As the Court of Appeals hhas emphasized, SEQRA review of annexation actions, such as these, without a specific project plan or rezoning application, are much more limited than the typical review required of a site- specific project. See Matter of City Council of City of Watervliet v Town Bd. of Town of Colonie, 3 NY34 508, 520 (2004) (“Since the annexation proposal lacks a specific project plan that has been officially submitted or a rezoning proposal that changes the use for which the property may be utilized, the EAP will necessarily be limited to the annexation itself and its = environmental review will be more extensive and must address the specific use of the property in evaluating the related environmental effects”). COO —— ——_ § and the attendant transfer of municipal services from one municipality to the other. Approval of the annexation does not commit the Village Board to approve any specific development proposal or use of property within the annexation territory. In fact, no development proposal or rezoning was submitted with the annexation petition. Nor would any of the annexation petitioners or other property owners in the annexation territory be authorized to commence any land development immediately upon annexation, as Petitioners suggest. Instead, as the Village Board’s SEQRA Findings Statement specifically requires, any rezoning or development project that may be proposed for review in the future will be subject to a full SEQRA review that will analyze site specific impacts at the time the “action” is identified and before it is ultimately approved. (TVIR, 12992; Ruzow Aff, $7665-68). This plan fully accords with the purpose of SEQRA, which is to ensure that the potential environmental impacts of a potential project are considered before the project is approved and undertaken. See Akpan v Koch, 75 NY2d 561, 569 (1990) 19(The primary purpose of SEQRA is to inject environmental considerations directly into governmental decision making.” [intemal quotation marks omitted)); Matter of Oyster Bay: ‘Assoc, Ltd. Partnership v Town Bd. of Town of Oyster Bay, 58 AD3d 855, 859 (2d Dept 2009) (same), lv denied 12 NY3d 716 (2009). T! is also consistent with the Village’s zoning law, and governing provisions of the Village Law, which require subdivision approval, site plan approval, and/or possible rezoning, depending on the nature of the project. Until such time as a specific rezoning or development project is proposed, the PHV Petitioners cannot claim to suffer any harm at all. See Matter of Association for a Better Long Is. Inc. v New York State Dept. of Envtl, Conservation, 23 NY3d 1, 7 (2014) (“a litigant’s “someday” intentions—without any description of conerete plans, or indeed even any specification of when the someday will be—do not support a finding of the “actual or imminent” injury that our cases require,” quoting Lujan v Defenders of Wildlife, 504 US 555, 564 [1992]. Because the PH Petitioners live outside of the annexation territory, their municipality of residence and the provision of municipal services will remain unaffected by approval of the 164- acre annexation, ‘The speculative impacts from subsequent development upon which PHV Petitioners attempt to base their standing are simply too tenuous to support a finding of injury-in- fact, especially considering that no details conceming the location or scope of potential future projects are available for the Village Board (or for that matter, this Court) to review. Because PHV Petitioners’ allegations of harm result only from speculative development projects that may or may not be proposed, reviewed, and approved at some point in the future, and not the annexations themselves, they lack standing to challenge the Village Board's SEQRA review for 20————————_———— cannot require preparation of an environmental impact statement for an annexation action based upon the agency's speculation as to how the annexation territory may be developed in the future); Rent rion Assn. of. + Inc., 15 AD3d at 194, PHV’s claim of associational standing also fails because none of its alleged members can demonstrate standing here, See Save Our Main St. Buildings, 293 AD2d at 909 (“Given that no individual petitioner has standings SOMSB cannot be found to have organizational standing under the three-part test established in Society of Plastics Indus. v County of Suffolk”). rrurthermore, PHV Petitioners cannot use SEQRA as a guise to further their objections, oon religious grounds, to the Village's very existence. The express allegations of the PHV Petition make it clear that PH Petitioners’ real concer is not purported environmental harm, but “to preserve and defend the constitutional and historic separation of religion from government institutions” by opposing not only the proposed annexations of territory to Kiryas Joel, but any lawful action taken by the Village. (PHV Pet, 17 see also id. $94, 153-154, 234- 244, 282-311). Courts have held that alleged harms such as these fall outside the scope of the amvironmental interests that SEQRA. was designed to protect and ate, therefore, insufficient to create standing, even for neighboring proparty owners. Soe Assoviation for a Better Long Is. Inc,, 23 NY3d at 6; Save the Pine Bush, Inc,, 13 NY3d at 306; see also ECL § 8-010! (purpose of SEQRA isto “promote efforts which will prevent or eliminate damage 10 the environment and cenhanee human and community resources”). Just as mere economic injury “does not suffice as injury-in-fact” falling within SEQRA’s zone of interest, PHY Petitioners’ objections to the __ 7 Ths standard does not insulate the SEQRA review at issue from any julia) review, as Petitioners may suggest. It is clear that the Town Board, as @ SEQRA involved agency and an affected local government under the Annexation Law, would have standing to challenge any Tegal deficiency in the SEQRA review. Notably, however, the Town does not do so here. 2Village’s existence and the annexation on purely religious grounds are similarly insufficient 10 establish their standing here, See e.g. Matter of VIR FV, LLC v. Town of Guilderland, 101 [AD3d 1532, 1533-1534 (Bd Dept 2012) (petitioners lacked standing to assert SEQRA and zoning claims based on threatened business competition and economic harm, despite close proximity); Matter of Riverhead PGC, LLC v Town of Riverhead, 73 ADSd 931, 933-934 (24 Dept 2010), Ix denied 15 NY3d 709 (2010). B. ‘The Municipal Petitioners Lack Standing. ‘The Municipal Petitioners similarly lack standing. When a municipality secks co establish SEQRA standing, it “must demonstrate how its [own] personal or property igh, either personally or in a representative capacity, will be direetly and specifically affected apart from any damage suffered by the public at large.” Matter of Village of Canajoharie Planning Bd. of Tovin of Florida, 63 AD3d 1498, 1501 (3d Dept 2009), Indeed, “[a] municipality is limited to asserting rights that are its own . .. and is not permitted to assert the collective individual rights ofits residents.” Matter of Village of Chestaut Ridge v Town of Ramapo, 45 AD34 74, 91 Qa Dept 2007) see also Village of Pomona v Town of Ramapo, 94 AD3d 1103, 1105-1106 (2d Dept 2012), Because a municipality “neither breathes foul air, nor hears loud noises, nor waits in traffic,” it “cannot be presumed to have suffered environmental injury by reason of its proximity to the source of the impacts” and “cannot establish its standing merely on that basis.” Village of Chestnut Ridge, 45 AD3d at 91 Instead, a municipality must establish that it has suffered conerete harm to “specific municipal interest” as a result ofthe challenged action, here, the annexation actions that would result only in the shifting of municipal boundaries and the transfor of municipal services provided to the annexation territory residents. Id. A “specific municipal interest” can only be 22established by the Municipal Petitioners if they (1) have been expressly granted approval authority with respect to the action, (2) have a specific property interest to protect, or (3) have & precise interest in preserving a distinct aspect ofits “community character.” Id. ‘The Municipal Petitioners make no such allegation or showing here, ‘The Municipal Petitioners have no approval authority over either annexation petition; that authority is reserved exclusively to the Town Board and the Village Board. See GML §711(1). In fact, the Municipal Petitioners are located as far away from the annexation territory as almost nine miles, orl = Trreerrlrlr——— a§€hhL alleged a specific property interest in the annexation territory that they could seek to vindicate in this proceeding. ‘The Municipal Petitioners? allegations of harm to their community character go no further to establish their standing to challenge the annexation actions on SEQRA grounds. rrr does not include the right to force their community character upon other municipalities. Tn fact the charecter of the comnnnity in and adjacent tothe annexation territory has been designated by Orange County as a “Priority Growth Area.” (TVJR, 5997). In essence, the Municipal Petitioners use this challenge to impose their own views of proper zoning and development on the Village, in violation of the Village's rights of municipal home rule, Like PHV Petitioners’ claims, the Municipal Petitioners’ primary allegation of injury-in- fact ig also based on pure speculation; that following the finalization of the 164-aere annexation, future umidentified development projects might begin construction without first obtaining municipal approvals or complying with SEQRA. No zoning or specific development project, 23however, has been proposed with the annexation actions. Until such a project is actually proposed, the Municipal Petitioners’ allegations conceming impacts to water supply, sewer capacity, and traffic are simply premature.® Given that there are no development projects proposed for the annexation teritory, and considering the approval and review process that would be undertaken for any such development proposals the Municipal Petitioners’ allegations of injury-in-fact resulting from the mere change sn municipal jurisdiction over property that they do not live in, own or control, are premature and speculative at best. Similarly, the Municipal Petitioners” allegations of pollutant discharge and harms to public water supplies could not possibly arise from the mere annexation itself, Such hharms are precisely the type of generalized allegations of harm suffered by the public at large that have been repeatedly rejected by the Courts as insufficient to establish standing, See e.8. Shelter Is, Assn. v Zoning Bd. of Appeals of Town of Shelter Is, 57 AD3d at 909 (petitioners? generalized allegations of increased traffic and the effect on the water table resulting from the addition of one or two tenants to the subject property are insufficient to establish such standing”). Likewise, the Orange County Sewer District No. 1 (“OCSD”) and Monroe Joint Fire District also cannot sustain standing. The mere change in municipal boundaries following annexation does not change or otherwise affect the boundaries of the either district or the a oe —“*EE"s—— eC. and municipal approval requirements upon any land use within the Village, and ‘would preclude the mediate and unregulated development conjured up by Petitioners. | (TVJR- 12992). All permitted principal uses are subject to site plan review and approval by the Planning Board. Site Plan reviews are governed by the Village Law and require full eomplianes with SEQRA and the ran wel Municipal Law. See Village Law §§ 7-725-2, 7-725+b, 7-728, 7-730, 7-732. Similarly, the Village Zoning Code provides for a detailed process forthe application of the Planned Unit Development zone, The Planned Unit Development zone requires a legislative action by the Village Board, as well as preliminary and final development plan review and approval by the Planning Board. Additionally, the Village Code also authorizes subdivision approvals subject to full review and approval of the Planning Board, including SEQRA. 24services that each are obligated to provide within the annexation territory. See e.g, Town Law § 172-0. In fac, the Fire District's only allegation of harm is the chance that future development will increase the need for services or mutual aid calls in the annexation territory without auditional funding to support those services. (TVIR. 6969, 7217-7218). Similarly, the OCSD's claim that annexation will lead to overuse of its facilities again is based solely on speculative fature development of the annexation territory. (TVJR. 7406-7407). Since the District is solely responsible for approving new connestions and the quality of any effiuent discharged from its facilites, any alleged environmental harm related to use of such facilities would be self-created and not caused by the annexation, These purely speculative economic harms are insufficient to establish standing here, See Riverhead PGC, LLC, 73 AD3d at 933-934, CS rrr—“rs—s—ssssrsss ST territory, whether to in-District members ot by contract to those outside ofthe District, remains unchanged regardless of whether the annexations occur,” See Matter of Svenningsen_v Passidomo, 62 NY2d 967, 968-69 (1984) (rejecting the respondents’ assertion that “they possess absolute discretion to grant or deny petitioners’ application to connect with the Town of Harrison sewer line for any teason or for no reason at all and that they cannot be compelled fo supply sewer service to a building outside the territorial limits of the town. The short answer to that contention is that the building is on property partly within the town and petitioners pay real estate and sewer taxes to the town”). ‘Thus, the OCSD cannot claim to suffer any harm directly as a 7 Indeed, in certain intermunicipal agreements with the in-District municipalities and so- called Moodna communities—including most, if not all, of the Municipal Petitioners—the OCSD has committed to provide adequate sewer treatment capacity to all residents that it serves, now and into the future, regardless of where growth occurs within the District, See GML § 119; TVIR. 3083-3089. 25result of the 164-acre annexation action because it is already obligated to serve the sewer capacity needs of the annexation territory residents. Finally, just like the PHY Petitioners, the Municipal Petitioners are improperly attempting o use SEQRA as a guise to prevent what they describe themselves as the “continued exponential growth of the Satmar Hasidic community.” (Municipal Pets’ MOL, at 16). This they may not do. POINT II PETITIONERS’ SEQRA CLAIMS. FAIL Even if this Court were to find that Petitioners have standing, their SEQRA claims fail. Petitioners argue that the Village Board's SEQRA review of the annexation actions neglected to properly study the potential adverse environmental impacts that may result from annexation. Petitioners’ arguments, however, amount to nothing more than a mere disagreement with the reasonable conclusions reached by the Village Board, and should be rejected. Judicial review of the Village Board's SEQRA review “is limited to whether the [lead] agency identified the relevant areas of environmental concer, took a hard look at them, and made a reasoned elaboration of the basis for its determination.” Matter of Riverkeeper, Ine. v Plenning Bd. of Town of Southeast, 9 NY34 219, 231-232 (2007) (intemal quotation marks omitted); Matter of County of Rockland v Town of Clarkstown, 128 AD3d 959, 960 (2d Dept 2015). Importantly, “[i]he agency's substantive obligations under SEQRA must be viewed in Tight of a rule of reason and agencies have considerable latitude in evaluating environmental effects and choosing among altematives.” Matter of Eadie v Town Bd. of Town of Nu Matter_of Eadie v Town Bd. of Town of N. Greenbush, 7 NY3d 306, 318 (2006) (internal quotation marks omitted). 26Contrary to Petitioners’ claims, “not every conceivable environmental impact, mitigating measure or altemative, need be addressed in order to meet the agency’s responsibility. The degree of detail—the reasonableness of an agency’s action—will depend largely on the circumstances surrounding the proposed action.” Neville v Koch, 79 NY2d 416, 424-425 (1992); see also Save the Pine Bush, Inc,, 13 NY3d at 308 (“A ‘rule of reason’ is applicable not only to an agency's judgments about the environmental concems it investigates, but to its decisions about which matters require investigation.”); Matter of Rusciano & Son Comp. v Kieman, 300 AD2d 590, 591-592 (24 Dept 2002), lv denied 99 NY2d 510 (2003), Indeed, “agencies have considerable latitude evaluating environmental effects [of an action] and choosing between alternative measures.” Akpan v Koch, 75 NY2d 561, $70 (1990). ‘Similarly, it is not this Court’s role to substitute its judgment for that of the Village Board. See Matter of Committee to Stop Aitport Expansion v Wilkinson, 126 AD3d 788, 789 (2d Dept 2015) (“Courts may review the record to determine whether the ageney identified the area of environmental concer, took a hard look at them, and made a reasoned elaboration of the basis for its determination . . . “fit is not the role of the courts to weigh the desireability of any action or choose among alternatives, but to ensure that the agency itself has satisfied SEQRA procedurally and substantively”). Nevertheless, Petitioners ask this Court to do precisely that, In reviewing Petitioners’ claims, this Court must also disregard their after-the-fact affidavits purporting to disagree with the Village's reasoned conclusions. It is well settled that «differing conclusions reached by other experts concerning the potential adverse environmental impacts are insufficient to annul an agency's determination.” Roosevelt_Islanders_for Responsible Southtown Dev. v Roosevelt Is, Operating Corp., 291 AD2d 40, 55 (Ist Dept 2001), Iv: denied 97 NY2d 613 (2002), lv denied 98 NY2d 608 (2002); see also Aldrich v Pattison, 107 27AD2d 258, 276 2d Dept 1985) (“The [environmental impact] statement need not achieve scientific unanimity on the desirability of proceeding with the proposed action” [internal quotation marks omitted)); Matter of Orchards Assoc. v Planning Bd. of Town of N. Salem, 4 ‘AD2d 850, 852 (2d Dept 1985) (holding that disagreement of expert opinions was an insufficient basis to annul the lead agency's reasoned SEQRA determination). Moreover, materials that were not submitted to the SEQRA lead agency during the SEQRA process cannot be considered. See eg, Aldrich, 107 AD2d at 267-268 (Applying the doctrine of exhaustion of administrative remedies, courts have refused to review a determination on environmental matters based upon evidence or arguments not presented during the proceeding before the lead agency"). In any event, Petitioners’ experts do not provide any basis to reject the conclusions reasonably drawn from the Village’s review of the annexations. At most, they offer differing conclusions concerning the potential adverse impacts of the annexations, which are insufficient fo annul the Village Board's SEQRA review. See Matter of Town of Woodbury v Village of Kirvas. Joel, Sup Ct, Orange County, Environmental Claims Part, Lefkowitz, Jy Apr. 7, 2014, Index No. 2877-2013, at 16. A. ‘The Village Board's SEQRA Review Comports with the Very Purpose of SEQRA. ‘The purpose of SEQRA is to ensure that the environmental impacts associated with a government action ate fully considered and weighed and balanced with social economic and other considerations so that a suitable balance of social, economie, and environmental factors may be incorporated in the planning and decision-making processes of local agencies. See Matter of Jackson v New York State Urban Dev. Comp, 67 NY2d 400, 414-415 (1980). As the ‘Second Department exhaustively explained: SEQRA allows an administrative ageney or governmental, body considerable Tatigude in evaluating the environmental impacts and alternatives discussed in an 28environmental impact statement to reach a determination concerning a proposed project. “While an {environmental impact statement] does not require a public uency to act in any particular manner, it constitutes evidence which must be Ceasidered by the public agency along with other evidence which may be presented to such agency .. . Thus the general substantive policy of the act isa Flexible one. It leaves room for a responsible exercise of discretion and does not require particular substantive results in particular problematic i ‘Aldrich, 107 AD2d at 267, quoting Matter of Town of Henrietta v Deparment of Env Conservation of State of N.Y., 76 AD2d 215, 222 (4th Dept 1980). ‘As the Court of Appeals has held, the extent of the SEQRA review of an annexation action without a specific development project or rezoning application, as here, need not reach beyond the potential impacts of the annexation itself. See City Counc of City of Watervliet, 3 NY3d at $20, SEQRA does not authorize or require the Village to complete a speculative assessment of development that might be proposed forthe parcels inthe annexation territory in the future, See City of Middletown, 54 AD3d at 337 (Town Board erroneously required preparation of a SEQRA environmental impact statement for an annexation because the Town Board's determination “was premised on its speculative conclusion as to how [the owner] and {developer} intended to use the property,” not on the effects of the annexation itself, notwithstanding that “no specifi plan for the property had been officially submitted or a ;evoning ptoposel made that would change the use ofthe property”). This limitation also applies to Petitioners’ demands for a longer review horizon, site specific natural resouree assessments and the imposition of future mitigation measures for projects or plans not yet submitted. “Although the annexation here is a Type I action (see 6 NYCRR § 617-4[bI(4D. where, as here, no specific development projector land use or zoning change for the annexation territory is proposed with the petitions, only an adjustment of the Village's political boundaries, even preparation of an environmental impact statement is not required. See 2. City of Middletown, 2954 AD3d at 337; Cross Westchester Dev. Corp. v Town Bd. of Town of Greenburgh, 141 AD2d 796, 797 (2d Dept 1988) ([W]hile we agree with the town board that the annexation in the present case is an unlisted action, we disagree that a DEIS is required. The record does not establish that the petitioners have any specific plans for the development or use of the parcel, In the absence of a specific project plan, which has been actually formulated and proposed, a DEIS is not required.”). The Village Board, therefore, would have been justified in issuing a negative declaration of environmental impact for the annexation action. The Village Board thus went beyond its SEQRA obligations by preparing a GEIS. ‘The DGEIS and FGEIS, including the significant agency and public input, have served the valuable purpose of reviewing the annexation action itself and informing and instructing future decision-makers of the potential effects of future development and the necessity and extent of further assessment required once future zoning actions and site specific development projects are officially submitted. This is precisely what SEQRA was enacted to accomplish, See Town of Henrietta, 76 AD2d at 220 (“An EIS is intended to provide detailed information about the effect which the proposed action is likely to have on the environment, to list ways in which any adverse effects of such an action might be minimized, and to suggest alternatives to such an action so as to form the basis for a decision whether or not to undertake or approve such action ‘The BIS, the heart of SEQRA, clearly is meant to be more than a simple disclosure statement os petitioners would construe it. Rather, it is to be viewed as an environmental ‘alarm bell” whose purpose is to alert responsible public officials to environmental changes before they have reached ecological points of no retum.”), The Village Board’s efforts to ensure that a comprehensive review of the annexation actions was undertaken, notwithstanding that SEQRA would have permitted a much more truncated review, should be upheld. 30B. The Village Board’s Preparation of a Generic Environmental Impact Statement for the Annexation Actions was Rational. Under SEQRA, a GEIS is “intended to be broad and general in its discussion of the impact of the proposed action on the entire community and the constraints and consequences of any narrowing of future options.” Horn v Intemational Bus. Machs. Corp,, 110 AD2d 87, 96 G4 Dept 1985), v denied 67 NY2¢ 602 (1986). The SEQRA regulations and the NYSDEC “SEQR Handbook” encourage the use of a GEIS where, as here, large areas of land are proposed for annexation but no specific development proposal has been presented. See 6 NYCRR §.617.10(@), (6); Ruzow AfE, $f 60-68; see also e.g. Matter of Danyla v Town Bd. of Town. of Florida, 259 AD2d 850, 852 (3d Dept 1999). Preparation of a genetic EIS, as opposed to a conventional BIS, for the annexation actions was particularly appropriate here, given the need to provide concrete guidance for the SEQRA reviews that must occur upon the proposal of site specific development projects. See 6 NYCRR § 617.10(2); Orchards Assoe., 114 AD2d at 852 (We recognize that Generic Environmental Impact Statements are held to a lesser degree of specificity than statements prepared for specific site plans and that they need not address every conceivable altemative to the proposed development” {citations omitted). Accordingly, the Village determined early on that the best and most transparent approach 10 address this circumstance was through the use of a GEIS. ‘As the SEQRA regulations provide, Generic FISs may be broader, and more general than site or project specific EISs ‘and should discuss the logic and rationale for the choices advanced. They may aso include an assessment of specific impacts if such details are available. They ay be based on conceptual information in some cases. They may identify the important elements of the natural resource base as well as the existing and projected cultural features, patterns and character. They may discuss in general Tomns the constraints and consequences of any narrowing of future options. They may present and analyze in general terms a few hypothetical scenarios that could and are likely to oceur.Id, (emphasis added). Without a pending rezoning or site specific development project proposed with the annexation actions, the Village Board reviewed instead conceptual hypothetical development scenarios post-annexation under the Village’s present zoning regulations for both the 507-acre and 164-acre annexation alternatives, which is precisely the purpose of a GEIS. (TVIR. 2666- 2687). The GEIS also considered hypothetical development scenarios under the Town's zoning code, in the “no-action” alternative, (TVJR. 2666-2671). ‘The GEIS then identifies potential adverse environmental impacts that must be considered when site specific development is proposed, ensuring that a full SEQRA review is conducted when concrete facts concerning the project and its attendant environmental impacts, if any, are more readily available. (TVR. 12961-12964); see 6 NYCRR §617.10(4); Eadie 7 NY3d at 318-319 (“The Town’s explanations of its proposed courses of action [in a GEIS] are well within a rule of reason. Specifically, there is nothing unreasonable about the Town’s comment, in its findings statement, that a more precise plan for traffic mitigation was impractical until the Town could know ‘which parcels will be developed and when.””). ‘The Village Board’s GEIS was intended to, and will, serve a valuable purpose for the Village and other approving agencies as a planning tool when assessing environmental impacts of future site specific development projects and possible mitigation measures that could be available. (TVJR. 12961-12964); see e.g. Neville, 79 NY2d at 426 (“SEQRA review of a rezoning ‘action’ may take place long before any actual project is proposed. In that event, environmental review may be conducted on a conceptual bi ”); Matter of Concord Assoc,, L.P. v Town of Thompson, 41 Misc 3d 1208(A), *20 (Sup Ct, Sullivan County 2013) (upholding GEIS as rational where “certain areas of concer, such as storm water runoff, cannot be dealt 32with in the FGEIS/FE] , because it is a ‘conceptual’ issue, but must be dealt with in the ‘site application phase’ under the ‘explicit jurisdiction of the Town Planning Board and subject to future SEQRA review, if needed. If at time of site plan approval further/ supplemental review is required, it will take place’ pursuant to 6 NYCRR 617.10(e)"). ‘Therefore, because the GEIS fulfills the underlying purpose of SEQRA to identify the broad areas of environmental concern to be studied on a site-specific basis when actual development projects are proposed, and does not exempt any future development project from compliance with SEQRA, Petitioners’ claims should be rejected. 1. The Village Board Did Not Impermissibly Segment its SEQRA Review. ‘The Village Board did not segment its SEQRA review of the annexation actions by specifying that site-specific environmental impacts must be studied when future development projects are proposed and reviewed by the planning board, as Petitioners claim. (Ruzow Aft, 69). ‘The SEQRA regulations define “segmentation” as “the division of environmental review of an action such that various activities or stages are addressed . . . as though they were independent, unrelated activities, needing individual determinations of significance.” See 6 NYCRR § 617.2(ag); see also is § 617.3(g)(1) ([elonsidering only a part or segment of an action is contrary to the intent of SEQR”), Segmentation is the breaking of an action into component parts and then evaluating these parts separately to avoid identifying the cumulative impact of all components together—not the division of the annexation into meaningful phases to aid in review of the potential environmental impacts, which is expressly permitted under the SEQRA regulations and the Court of Appeals’ decision in Watervliet. See 6 NYCRR § 617.10(e); City Council of City of Watervliet, 3 NY3d at 520. 33Here, the action that triggered the need for SEQRA review is the petitions filed with the ‘Town and Village by the owners of privately owned parcels within the proposed annexation territories to have these properties annexed to the Village. (IVJR. 1-420, 725-898) Notwithstanding Petitioners’ speculation to the contrary, the annexations are not “part and parcel of Kiryas Joel’s long-term plan to expand significantly its territory and to grow its population by tens of thousands of residents.” (Municipal Pets’ MOL, at 18-19). The Village merely responded to the petitions for annexation that were filed by owners of property in the annexation territory seeking to take advantage of the Village’s municipal services and cultural amenities. Because the annexation petitions were not filed by Kiryas Joel, were not part of any long-range plan for the Village, and the annexation petitioners did not propose any specific development plan or project for the annexation Tands, the Village and Town were limited in their review to the potential adverse impacts of the annexations themselves, as well as “a few hypothetical scenarios that could and are likely to occur” following annexation, 6 NYCRR § 617.10(a); see City Council of City of Watervliet, 3 NY3d at 520. The GEIS more than complies with SEQRA’s mandate in this regard, It reviews not only the environmental impacts of the annexations, as required under Watervliet, but also reviews potential impacts that could result from conceptual development scenarios that could occur under the Village’s existing zoning. (TVIR. 12968- 13005). Moreover, the concept of segmentation is simply inapplicable to this situation as these fature actions have not yet been defined or proposed, Petitioners” claims of segmentation are, therefore, meritless. Petitioners essentially ask this Court to compel the Village to speculate about what specific development projects may be proposed over the next thirty years, where they may be proposed, and then review the speculative impacts to specific sites. SEQRA does not require 34such a result, See e.g. Matter of Industrial Liaison Comm. of Niagara Falls Area Chamber of Commerce v Williams, 72 NY2d 137, 143 (1988) (“it is not arbitrary and capricious or a violation of existing law for the agency, when it takes its ‘hard look’ and makes its ‘reasoned determination’ under SEQRA, to ignore speculative environmental consequences which might arise”); Matter of Village of Tarrytown v Planning Bd. of Vil, of Sleepy Hollow, 292 AD2d 617, 620 (2d Dept 2002) (no segmentation where “any plans to develop those properties were speculative and hypothetical” in light of a building moratorium and uncertain zoning regulations), Iv denied 98 NY2d 609 (2002); Matter of Long Is, Pine Barrens Socy. v Planning Bd. of Town of Brookhaven, 204 AD2d 548, 551 (2d Dept 1994) (“Because of the uncertainty as to when, if ever, proposed lot three would be developed as planned, it was not feasible or necessary for the [SEQRA lead agency] to undertake a more exhaustive and speculative evaluation”), Iv dismissed in part and denied in part 85 NY2d 854 (1995). ‘Although Petitioners conclusorily claim that “more” should have been done, they notably fail to suggest any studies or analyses that the Village Board could have practicably completed to ‘ascertain what and where development projects will be proposed in the future, and what potential environmental impacts may result from those projects. ‘The analysis provided in the GEIS is conceptual in nature precisely because no site specific project has been proposed. None of the concems that make segmented review of a SEQRA action disfavored ~ “the danger that in considering related actions separately, a decision involving review of an earlier action may be practically determinative of a subsequent action” and by breaking up an action with a significant environmental impact, review of the parts separately will not have as significant an impact as the Whole — are present here. Matter of Concerned Citizens for Envt. v Zagata, 243 AD2d 20, 22 (3d Dept 1998), lv denied 92 NY2d 808 (1998). 35Petitioners next argue that the Village segmented its SEQRA review because, they postulate, the Village will fail to comply with SEQRA with respect to future site specific development projects. There is no support in either law or fact for such speculation. Contrary to Petitioners’ assertion, “{tJhe law in the absence of any circumstances or proof indicating the contrary presumes not only that such public officers performed the duties of their office but that acts within the sphere of their official duty were done regularly, legally and reasonably, with honesty and good conscience in accordance with law.” Rickett v Hackbarth, 98 Misc 2d 790, 803 (Sup Ct, Onondaga County 1979), aff in part and mod in part vNew York State Urban Dev, Corp,, 69 AD2d 222 (4th Dept 1979). It cannot be simply presumed that the lead agency reviewing a specific development project at some time in the future will not comply with the obligations imposed upon it by law. Whether SEQRA is complied with in the future for a particular development project is a subject for judicial review in the event that such a project is ever developed or proposed. See Matter of Town of Woodbury v County of Orange, 114 AD3d 951, 954 (2d Dept 2014) (“While the petitioners further challenge the provisions of the District Agreement providing for the timing of a contemplated SEQRA review of any expansion, it would be premature to review the Legislature's future approval of any expansion pursuant to County Law § 268 for its compliance with SEQRA.”), ly denied 24 NY3d 903 (2014). 2. ‘The Village Board Was Not Required to Prepare a SGEIS. Petitioners further contend that the Village should be required to prepare a supplemental EIS because the ten-year review horizon for the annexation actions does not allow for consideration of the impacts that may result at some point beyond 2025 from speculative development projects that have not been proposed. (Ruzow Aff, 70). Under SEQRA, a lead 36agency “may” require the preparation ofa supplemental EIS where there are “significant adverse environmental impacts not addressed or inadequately addressed in the EIS” that arise from changes in the project, newly discovered information, or a change in circumstances, 6 NYCRR §.617.9(@)(7) (emphasis added). ‘The decision to require or not require supplemental EIS should be upheld so long as itis not arbitrary or capricious. See Riverkeeper. Ine., 9 NY34 at 232; Eadie, 7 NY3d at 31 Matter of C/S 12th Ave. LLC v City of New York, 32 AD3d 1,7 (ist Dept 2006) (“The mere fact that a project has changed does not nevessarily give Hse f0 the need for the preparation of a supplemental EIS (SEIS).”). Hore, Petitioners merely disagree with the Village Board’s discretionary determination that a ten-year review horizon accurately identified the potential adverse environmental impacts of the annexation itself, In fact, all of Petitioners’ allegations of unreviewed potential adverse impacts relate exclusively to the speculative future development projects, which the Village Board is unable to accurately review without concrete project proposals. Moreover, Petitioners do not allege that the scope of the annexations changed during the SEQRA review Process, oF that the Village Board or Town Board discovered new information or changed cireumstances that identified new potentially adverse impacts from the annexations. Instead, they simply seek to substitute their judgment conceming the appropriate review period for that of the Village Board, which as the SEQRA lead agency, has reasonable discretion to make that determination, Je, 79 NY2d at 424-425. Contrary to PHV Petitioners’ clsims, the SEQRA regulations do nat require the lead agency 10 hold a public hearing or accept publie comments on the diseretionary decision not 10 prepare a supplemental EIS. See e.g, Riverkeeper. Inc., 9 NY3d at 235 (holding that “the [lead agency] did not have an affirmative obligation to notify or solicit comments from other agencies 37when determining that a second SEIS was not required”); Jackson, 67 NY2d at 430 (“Just as no public hearings are required in the case of a negative declaration, so nothing in the statute requites that the hearing process be reinstituted as to modifications which will not have @ significant effect on the environment”). Simply put, no basis exists under SEQRA for requiring the Village Board to prepare a supplemental GEIS based upon Petitioners’ mere disagreement with the chosen review period for the annexation action. See e.g. Matter of Muir v Town of Newburgh, NLY., 49 AD3d 744, 746 (24 Dept 2008) (upholding the lead agency's determination that changes to the project did not result in any “new adverse significant environmental impacts that had not been previously addressed, and that the preparation of an SEIS was not warranted”) C. The Village Board’s Use of a Ten-Year Review Horizon was Rational, Both sets of Petitioners argue that the GEIS’s ten-year review period for the annexation actions is irrational because they claim the alleged impacts of the annexations will “range well past that date.” (PHY Pets’ MOL, at 14), Petitioners, therefore, assert that the GEIS fails #0 consider the long-term impacts of the annexations. Petitioners’ claims are without merit, New York courts have repeatedly “allowed State or local ‘lead agencies’ considerable latitude in the exercise of discretion on substantive environmental matters.” Hom, 110 AD2d at 62; see also Akpan, 75 NY2d at $70 (‘agencies ave considerable Intitude evaluating environmental effects”); Aldrich, 107 AD2d at 267. One such determination for which a lead agency is entitled to deference is the review period selected for the SEQRA action. Indeed, where a specific period of analysis is required, it is generally set forth in the applicable statutory scheme, See e.g, 23 CER § 450.322(@) (“The metropolitan transportation planning process shall include the development of a transportation plan addressing no less than a 20-year planning horizon as of the effective date.”). 38For example, courts have repeatedly upheld a ten-year SEQRA review period for an action as well within the lead agency’s discretion, See e.g. Chinese Staff & Workers’ Assn., 88 ‘AD3d at 429 (upholding SEQRA review over a 10-year period); Matter of Committee to Preserve Brighton Beach & Manbattan Beach v Council of City of N.Y., 214 AD2d 335, 337 (Ist Dept 1995), lv denied 87 NY2d 802 (1995). Particularly, in Fisher v Giuliani (280 AD2d 13 [Ist Dept 20011), the lead agency, in reviewing a rezoning of the Manhattan Theatre District, selected fa ten-year review period for future development of the district. See id, at 17 (after assessing specific sites where “development was most likely to occur, with or without a change in zoning . . . The DCP then considered the potential demand for additional development in the study area within the foreseeable future, that is, over the next 10 years, To make these future projections, DCP examined development trends in the larger midtown area during the 10-year period between 1983 and 1993. The 10-year period was chosen because it reflected a full business cycle for midtown development, including periods of both significant and limited growth”). Rejecting ‘a challenge to the lead agency’s choice of the ten-year review period, the Appellate Division held, petitioners’ argument is that the CPC was required to look beyond 10 years from the enactment of the zoning amendments and assume that every single square foot of buildable area will eventually be developed, regardless of the likelihood that it will occur, This argument is without merit since the DCP was only obligated to examine environmental consequences into the foreseeable future, not to examine theoretical possibilities that were steeped in nothing more than unsupported speculation. To adopt a ten-year time frame was hardly an irrational examination of the long-term foreseeable future. Id, at 21 (citation omitted and emphasis added); see also Matter of Develop Don’t Destroy Brooklyn) v Urban Dev. Corp., 59 AD3d 312, 318 (Ist Dept 2009) (“It is, of course, possible that the lengths of the projected build-out periods (four years for the first phase of the project, including the arena, and 10 years for the remaining elements) were underestimated, but the 39‘ultimate accuracy of the estimates is neither within our competence to judge nor disposi cof the issue properly before us, which is simply whether the lead agency's selection of build dates based on its independent review of the extensive construction scheduling data obtained from the project contractor may be deemed irrational or arbitrary and capricious, and it may not. The build dates having been rationally selected, there can be no viable legal claim that the EIS was vitiated simply by their use” [citation omitted]), lv denied 13 NY3d 713 (2008). Petitioners ask this Court to compel the Village to speculate about specific impacts that may occur over the next thirty years ftom potential development projects in the annexation territory that have not yet been proposed and to assume that every aere of the annexation feritory will be developed with increase development densities regardless of whether properties within the annexation territory have already been developed or approved for development by the Town. (PHY Pets" MOL, at 12-13). SEQRA, however, does not require such rank speculation, even when performing a hypothetical conceptual development analysis in connection with a GEIS, as the Village Board did here, See 6 NYCRR § 617.9(b)2) (requiring assessment of “only those potential significant adverse environmental impacts that ean be reasonably anticipated and/or have been identified in the scoping process”). ‘The ten-year review period used in the GEIS was based upon conerete census data from the 2010 Census (TVIR. 3102-3148), which is validated by the U.S. Census Bureau and has been routinely used by planning agencies, including Orange County, a Petitioner here, to develop accurate projections of population growth, (R. 11920-11921; see also, Orange County, Summary Guide 10 Population Projections and Buildout Analysis, at 1, available at hittp./hvorw.orangecountygov.com/filestorage/124/1362/3210/Summary_Guide, to Population P rojections_8-13-10.pdf (“Future growth can be predicted to a certain extent by Finding the 40difference between the most recent annual population estimate produced by the Census Bureau and the ‘estimate base’ (the population of the County according to the last Census), dividing that number by the estimate base, and then dividing that resulting number by the number of years since the last Census”]). Indeed, a ten-year time horizon for such planning analysis is common practice. For example, Orange County and other neighboring communities, including the Village of Woodbury and Village of Monroe, have used a ten-year population projection in a number of planning reports, (TVIR. 11920-11921, 11930; Wells Aff, $f 18-19). In fact, Orange County's own projections for population growth in the county are based upon a ten-year analysis, as are most municipal comprehensive plans in the region, including the Village of Woodbury’s and Village of Monroe's comprehensive plans. (TVIR. 5984-5987, 6034). Further, the County's Amended FEIS for the 2006 Harriman WWTP expansion and sale of excess sewage treatment capacity to non-District users, which was completed in 2010, was based on a population growth and build out analysis through 2025. ('VIR. 6132). Similarly, the Orange County Final Water Master Plan, published in October 2010, only included five- and ten- year planning horizons. (TVIR. 5925-5926 [relying on US. C sus population datal). ‘Accepting Petitioners’ arguments here would invalidate all of these other municipal planning documents, In contrast, extrapolating hypothetical development over a period of time longer than ten years, especially in the context of these annexation proposals without any conerete development plans, is overly speculative. A ten-year planning horizon is commonly used since that is approximately the maximum amount of time it can be assumed that other variables that affect population growth, such as fertility and mortality rates and net migration, remain relatively constant, (Wells Aff,, 20). Because there are a significant number of unknown factors that can 41alter the results of a population projection over a time frame greater than ten years, greater —— = tpwenty- or twenty five-year projection, which permits a more reliable review of potential environmental impacts. (ia). Petitioners? repeated reference to an unrelated thirty-year financial model presented by the Village to the Environmental Facilities Corporation (EFC?) as the basis for requiring @ similar time horizon for development impacts in the full GEIS is misplaced and fails to comprehend the obvious distinction between the fwo- (Ruzow Aff, 76). The EFC financial model was an accounting exercise undertaken to forecast the financial feasibility on the rr =—EE project. The thirty-year horizon in the model merely reflets the term ofthe loan. (ld). The model considered the number of new water connections that could be required on an annual basis over the life of the loan to sustain the debt, Tt did not consider any issues with respect (0 land use, development, or other environmental factors. It did not even consider whether the Village could sustain the projected number of eonneetions ot where they would be located. (Id) ‘The base figure inputted into the model was calculated fom the annual average number of residential connections over the past ten years in the Village. This number was then merely inputted into the model with a nominal escalator every ten years thereafter for the thirty-year loan term (1d). The EFC analysis was not a land use planning study or a SEQRA assessment. T ‘herefore, no basis exists for Petitioners’ suggestions that the EFC Business Plan somehow establishes that the Village Board’s selected ten-year review horizon was irrational. Simply put, the further population growth estimates and attendant impacts extend out in time, the more speculative they become, The Village Board’s reasonable use of @ ten-year 42planning horizon for the annexation actions is based upon as concrete of population data as was available under the circumstances, and comports with the standard review horizon that has been used by the County and other nearby municipalities to generate population projections for purposes of SEQRA review. Having failed to demonstrate that use of a ten-year period was irrational, Petitioners’ claims in this regard and speculative allegations of impacts extending beyond the ten-year review period should be rejected. D. The Village Board’s Growth Projections are Rationally Supported by the Record. Petitioners also criticize the GEIS's conclusion that the Village’s anticipated population growth, which is conservatively estimated at 5.6% per annum (TVIR. 2517), will occur with or without annexation because, they claim, it does not consider the impacts of in-migration. Srrrr—“C —™s—-—C of the Kiryas Joel community. “The GEIS’s projections of the growth of the Orthodox Jewish population, which makes up the vast majority of the families in the Village, is based upon the Village's growth experience since its incorporation, as refleeted in the 2009 growth study prepared by AKRF, Inc. in connection with the Village’s SEQRA review of the water supply connection to the New York City Aqueduct, and the cultural practices of Orthodox Jewish families. (TVIR. 6889-6900). [Although in-migeation in the early years following the Village's incorporation was likely high, the AKRF study demonstrated that the Village's rate of in-migration was substantially lower than the rate of in-migration in Orange County as a whole and of other nearby counties. (TVIR. 66898-6890), Furthermore, a review of 2012 American Community Survey Census data indicates that in-migration and out-migration pattems for the Village are quite low, and 97.3% of the population lived in the same house five years ago. Of the remaining 2.7%, 2.3% still live in the 43same county. Only 0.4 percent of the population moved into or out of the Village from outside of Orange County. (TVIR. 2514, 3128-3131). Contrary to Petitioners’ conclusory speculation about the “continued exponential growth of the Satmar Hasidic community” (Municipal Pets’ MOL, at 16), the Village reasonably studied the potential impacts of in-migration, which is considered within the GEIS’s annual growth rate of 5.6%, based upon actual, concrete, and reliable population data and the societal norms that define how the Orthodox Jewish community has grown in Kiryas Joel, Because a rational basis exists in the record for the Village Board’s growth projections, including its consideration of the effects of in-migration, this Court should not disturb the Village Board’s findings. E. ‘The Village Board’s Analysis of Potential Adverse Impacts to Water, Sewer, Traffic, and Community Character was Rational. Petitioners assert that the Village Board failed to take a hard look at speculative potential adverse environmental impacts to water and sewer resources, traffic, and community character that may result following annexation, It is clear, however, that the potential impacts that Petitioners claim were inadequately analyzed result not from the mere shifting of municipal boundaries involved in the annexations themselves, but from future site-specific development projects that have not yet been proposed or reviewed. Because none of the alleged impacts about which Petitioners claim actually result from the annexation actions before the Village Board, and any future development projects will be subject to full SEQRA reviews independent of the review undertaken by the Village Board for the annexation actions, Petitioners’ claims of speculative potential future impacts are not ripe and should be rejected by this Court out of hand. Nevertheless, the record plainly establishes that the GEIS exhaustively identified and took a hard look at potential adverse impacts that could occur following annexation to water and sewer resources, traffic, and community character, With respect to the adequacy of the Village's 44water supply following annexation, the GEIS’s study of the Village’s population growth and estimated future water demand indicates a 2025 study area population of 42,297 and an estimated daily water demand of 2.79 million gallons per day (“mgd”). (TVR. 2629, 12983). Future water demand for the Village is estimated using an established water use rate of 66.0 gallons per day, per-capita, which was based upon the reported water usage in the Village. (TVIR. 2625). As demonstrated in the Affidavit of ‘Thomas Cusack, the Village’s hydrogeologist, the Village’s current available water capacity of 2.91 mgd is plainly sufficient to satisfy the estimated daily water demand in 2025, even without consideration of the Village's anticipated connection to the New York City Aqueduct in 2017. (Affidavit of Thomas Cusack, sworn to January 21, 2016 [“Cusack Aff.”], 9). With the Village’s connection to the Aqueduct, the Village will have a more than sufficient source of water supply for its residents to accommodate continued growth beyond the 2025 GEIS study period. (TVJR. 2617-2618, 2629- 2630). Furthermore, when the Village’s connection to the Aqueduct comes online, the Village’s current system of groundwater wells will be used as a backup supply when the Aqueduct is taken out of service by the NYCDEP for maintenance or other reasons. (TVJR. 2629-263 ‘Cusack Aff, $13, 15-16). This will inevitably lessen the impacts of the Village’s water withdrawal on the aquifers underlying and in the close vicinity of the Village, which would mitigate any potential adverse impact of future population growth in the Village following annexation, (TVIR. 2631; Cusack Aff,, Ex. C). Similarly, the GEIS’s analysis of potential impacts to sewer treatment capacity demonstrates that the demand for wastewater treatment is unlikely to change with or without annexation. The vast majority of property owners in the annexation territory (all but 12 parcels) already lie within the OCSD’s boundaries and, thus, are entitled to sewer service from the OCSD 45regardless of whether the annexations are rr ——— the GEIS demonstrates that population growth in the Village and annexation teritoris is projected to add 19,663 persons in 3,825 units by the year 12025, which would generate an additional 1.3 mgd of additional wastewater treatment demand over the next 10 years, (VIR. 2644). Notably, 2010 Orange County Department of Environmental Facilities Report concludes that there will oT——™——sSS 2015 based on its obligation to inerease capacity pursuant to an 2010 Expansion ‘Agreement between Orange County end the Sewer District, CTVIR. 2644-2645, 6132). As of June 2015, however, Harriman Wastewater ‘treatment Plant, which treats most of the wastewater from District users, was reportedly operating at approximately 70% capacity (IVIR. 12848, 12986). Therefore, the current flow rates confirm that there is available capacity beyond 2015. In fact, the County's own CGR report, which was prepared to study the annexations at issue, projected that adequate capacity exist at the Hlarsiman WWTP through 2027, (IVIR- 12851-12856). ‘As the GEIS explains, should available sewage treatment capacity at the HWWTP reach 85% of the total design capacity due to growth in the District, regardless of where it occurs, the OCSD has committed fo a process to request an Increase of capacity in the Distriet to ensure that the needs of all of the residents that it serves are met, (TVIR. 2637-2638, 3083-3089); see Town of Woodbury, 114 AD3d at 954. Indeed, the County has retained an engineering firm to develop plans for a 3 med capacity expansion over the next year. (TVR. 2638-2639, 2647, 7406). Such an expansion would further accommodate the additional demand from growth in OcsD #1, jneluding that in the annexation territory, well into the future. With respect to potential traffic impacts following annexation, the GEIS rationally cconchudes that annexation is anticipated to result in 18 to 25 percent fewer peak hour trips into 46and out of Kiryas Joel including the annexation territory due to the expanded use of transportation services that are more readily available and utilized in the Village when compared against potential future development without annexation.’ (TVJR. 2589). Petitioners’ claims that traffic impacts to specific intersections should have been studied belie the very purpose of a GEIS, and flatly ignore that site-specific traffic impacts will be fully studied when actual development projects are proposed and reviewed. To attempt to review traffic impacts to certain intersections without any knowledge of where and when development may be proposed is simply premature. As the GEIS recognized, although future development of the annexation territory may change the existing rural character of some of the territory, annexation will provide for a more logical expansion of the existing community character of the Village, which has been consistently identified by the County as a “priority growth area.” (IVJR. 5997). The Village's compact, walkable development in which schools, social centers, religious facilities, and affordable housing have all been integrated has been lauded as a prime example of smart growth principles that prevent suburban sprawl, (Ruzow Aff, § 28, Ex. A, at 22), It is the Village’s very community character that was part of the driving force behind the property owners’ submis jon of the annexation petitions to the Village. Contrary to Petitioners’ claims, however, the purported rural community character of neighboring municipalities cannot be used as a sword to thwart the annexation petitioners” desire to incorporate their properties within the Village and take advantage of the community character and municipal services that the Village provides. See * Because of the religious customs of the vast majority of residents of the annexation territory, which prohibit driving on the Sabbath, the anticipated impacts to traffic are substantially less with annexation and the extension of the Village’s public transportation and pedestrian infrastructure than without annexation. 47Matter of Village of Kiryas Joel v Village of Woodbury, Sup Ct, Orange County, Environmental Claims Part, Nicolai, J., Mar. 19, 2014, Index No. 9655-2011. The record clearly demonstrates that the GEIS identifies potential impacts to water and sewer resources, traffic, and community character and takes a hard look at them, Contrary to Petitioners’ arguments, no more is required under SEQRA. ‘The Village Board’s reasoned determination that the annexations will not result in any significant adverse environmental impacts cannot be annulled merely because Petitioners, relying on speculative impacts that may flow only from future development projects that have not yet been identified or proposed, disagree with the Village Board’s conclusions. F. __ Petitioners? Proposed Mitigation Measures of Rejecting the Annexation Outright or Setting Artificial Limitations on Development are Not Required Under SEQRA. SEQRA requires only that a lead agency’s findings implement those mitigation measures that are identified as “practicable.” See 6 NYCRR § 617.11(d)(5). As the Court of Appeals has emphasized, SEQRA requires an agency “to list ways in which any adverse effects ... might be minimized” (ECL 8-0109[2]), but it does not require an agency to impose every conceivable mitigation measure, or any particular one. Rather, in accordance with its balancing philosophy, SEQRA requires the imposition of mitigation measures only “to the maximum extent practicable” “consistent with social, economic and other essential considerations” (ECL 8-0109[8}). Moreover, nothing in the act bars an agency from relying upon mitigation measures it cannot itself guarantee in the future, Just as an agency must take a hard look at alternatives and consider a reasonable range of alternatives, so, 00, must an agency, employing a rule of reason, take a hard look at and consider potential mitigation measures. Jackson, 67 NY2d at 421-422 (some citations omitted). Given the nature of the annexation petitions, presented without zoning or site specific development plans, the identification of specific traditional mitigation measures in the GEIS was impractical, if not impossible. As a result, the GEIS contains a preliminary scope of the 48environmental issues which would need to be addressed on a site- or project-specific basis in any supplemental review undertaken after the original GEIS as zoning and project plans materialize. (L'VIR. 2664), This includes a number of the environmental planning and mitigation measures that would likely be implemented in the future by the relevant reviewing and approving agencies to minimize the potential for significant environmental impacts as a result of future development proposals. (Id). For example, to mitigate any potential adverse impacts on land use in the annexation territory, the Village intends to establish a master plan committee to study the development opportunities and constraints of the annexation territory to accommodate is existing and future residents and to make specific recommendations for future land use decisions. (IVJR. 12970). With respect to mitigation of potential impacts from specific future projects, the Village advised the future agencies with jurisdiction over those projects to consider smart growth principles, including mixing land uses in a community setting, compact building design, walkable neighborhoods, preserving critical environmental areas, directing development towards existing communities, and providing transportation choices, when reviewing specifie development applications. (d.). Moreover, to mitigate potential future traffic impacts ftom site-specific development projects, the Village suggested incorporation of intersection controls and/or improvements to increase capacity or improve traffic safety such as tuming lanes, traffic signals or roundabouts, into project approvals, (TVR. 12981). Furthermore, the GEIS imposes a threshold for a proposed project to conduct a traffic capacity study when it is projected to generate 100 trips in a peak hour, as recommended in the NYSDEC online SEQR workbook. (TVR. 12982). 49‘To mitigate potential water impacts, the GEIS recognizes that all of the Village's approved water supplies are subject t0 specific concitions imposed by the NYSDEC and NYSDOH, including water conservation, reporting, and maintenance provisions intended 10 result in optimizing and minimizing water usage in the Village, (Cusack Aft. $9 32, 33) The Village's connection to the New York City Aqueduet as its principal water source, which is anticipated to come online in 2017, will also mitigate potential impacts to the groundwater aquifers on which the Village and other nearby municipalities now rely for their municipal water systems, (1d, 34); see Matter of Village of Scarsdale v Jorling, 229 AD24 101, 103 (2d Dept 1997) (stating that the City is “required” to supply water to municipalities covered by the Act), aff 91 NV2d 507 (1998); Matter of Town of Woodbury v Village of Kirvas Joel, Sup Ct, Orange County, Environmental Claims Part, Lefkowitz, J, Apr. 7, 2014, Index No. 2877-2013, at 18 (holding that Kiryas Joel is legally entitled to tap into the NYC Aqueduct). For example, the pending water supply agreement between NYCDEP and the Village requires City-approved water conservation plan as well as state of the art metering and other technologies to prevent waste and contamination of the water source. (Cusack Aff, 34). In addition, the use of “Aqueduct water is strictly limited to the territorial boundaries of the Village, unless otherwise approved by NYCDEP, and the allowance volumes are likewise strictly limited by a formula in the NY City Administrative Code based on U.S. Census population figures and per capita usage in NYC. (Id,)}; see New York City Administrative Code § 24-360(@). Furthermore, the GEIS notes that the SEQRA lead agency for future site-specific development projects may also require preparation of wildlife inventories as well as the implementation of species proicstion measures; implementation of the State's erosion control standards including planning and site management measures for impact minimization or 50avoidance, design and implementation of vegetative, biotechnical and structural controls, and design of an erosion and sediment control plan in accordance with the State's Standards and Specification for Erosion and Sediment Control, preparation of stormwater management plans; determinations of whether the proposed projects will impact designated wetlands and wetlands delineations, if necessary; and preparation of archeological assessments, among other things. (TVIR. 12989-12990). Because details of future projects and impacts are indeed unknown, the GBIS did not suggest conditions or thresholds which would eliminate the need for further environmental review. Instead, all specific development project proposals will be subject to a full site-specific SEQRA review prior to lead agency action, (TVIR. 2664; Ruzow Aff, ¥ 68). Contrary to Petitioners’ assertions, however, the Village Board lacks authority to place any conditions on its determination of the annexation petitions. See Informal Opn No. 70 of NY Atty Gen, 1987 NY Op Atty Gen (Inf) 70, 1987 WL 273410, *2 (Mar. 3, 1987) (“a town may not place binding condi $ upon its approval of a petition for annexation of property within its limits pursuant to article 17 of the General Municipal Law”). Moreover, Petitioners" suggestions that the Village should have set artificial development limitations on the annexation territory as a purported mitigation measure is simply not practicable or required under SEQRA. Indeed, because the Village Board may not be the agency with jurisdiction to review or approve future development projects that may be proposed—that authority lies with the planning board (see Village Law §§ 7-725-a, 7-725-b, 7-728, 7-730, 7-732)—the Village Board cannot impose conditions on future unidentified development, Further, because no projects have yet been proposed, it would not be ripe to impose mitigation measures on future projects without any knowledge of what the precise site-specific impacts might be, and the owners of the land in the 51annexation territory have the right to be free from conditions on their land, except to the extent necessary to mitigate against impacts arising from a specific development project. Because the Village Board clearly considered a number of mitigation measures that may be used by the relevant lead agencies in the future when determining how to minimize the potential impacts of future development, and the GEIS expressly provides for all future development projects to undergo a complete SEQRA review, Petitioners’ claims that the Village Board failed to reasonably mitigate the potential impacts of the annexation actions should be rejected. G. The Village Board Articulated a Reasoned Elaboration of its Determination of Significance. Petitioners also argue that the SEQRA Findings do not set forth a reasoned elaboration of the Village Board’s determination that the annexations will not have a significant adverse impact on the environment, Even a cursory review of the Village’s Finding Statement reveals that it rendered a “reasoned elaboration.” SEQRA requires that a lead agency must “set forth its determination of significance in a written form containing a reasoned elaboration and providing reference to any supporting documentation.” 6 NYCRR § 617.7(b)(4). As the courts have held, the “reasoned elaboration” requirement gives the public and a reviewing court insight into the analysis undertaken by the lead agency, and allows the court to “ensure that, in light of the circumstances of a particular case, the ageney has given due consideration to pertinent environmental factors.” Akpan v Koch, 75 NY2d 561, 571 (1990); see also Matter of Committee to Stop Airport Expansion v Wilkinson, 126 AD3d 788, 789 (2d Dept 2015) (dismissing SEQRA claim because “the Town Board ... [took] a hard look at potential noise impacts of the proposed actions and made a reasoned elaboration of the basis for its determination in the [FGEIS], which thoroughly analyzed noise 52data and potential noise mitigation based upon noise averaging methodology along with single event noise data,” notwithstanding the petitioners” disagreement with the methodology). Here, the Village Board’s 49-page SEQRA Findings could not be a more complete elaboration of the Board’s determinations that the annexation actions will not have a significant adverse impact on the environment, ‘The Findings proceed step-by-step through each area of, environmental concern that must be considered under SEQRA, discuss the potential adverse impacts of not only the annexations, but also of conceptual hypothetical future development scenarios following annexation, and recommend the incorporation of certain mitigation measures when actual site-specific development projects are proposed and reviewed. (TVJR. 12960- 13009). Indeed, the Findings make clear that Village has carefully weighed and balanced the relevant environmental impacts with social, economic, and other essential considerations, and set forth a detailed and reasoned elaboration of its determinations to approve the annexation actions. Petitioners’ SEQRA claims should therefore be dismissed in their entirety. POINT III THE NYSDEC COMMISSIONER RATIONALLY DETERMINED THAT THE VILLAGE BOARD OF KIRYAS JOEL SHOULD SERVE AS THE SEQRA LEAD AGENCY FOR THE. OF THE PROPOSED ANNEXATION ‘The PHY Petitioners seek to have this Court substitute its judgment for that of the NYSDEC Commissioner as to which agency should have been selected as the SEQRA lead agency for the review of the proposed 507-acre annexation. This is the second proceeding in which the PHY Petitioners have challenged the NYSDEC Commissioner's designation of the Village Board as the SEQRA lead agency. See Matter of Preserve Hudson Valley, Inc. v New York State Dept. of Environmental Conservation, Sup Ct, Orange County, Environmental Claims Part, Connolly, J., Index No. 1707-2015. Because that action is identical to this one, was 33commenced against the same partes, and remains pending, PHY’s challenge to the lead agency determination should be dismissed, See Montalvo v Ait Dock sys. 37 AD3d 567, 568 Cd Dept 2007) (Since the instant action was identical 0 the first action, including having been commenced against the same partis, the second action was properly dismissed in its entirety pursuant to CPLR 3211(@)(4).”)- When a SEQRA action involves more than one involved agencY» and the agencies cannot agree which will serve as the lead agency, the dispute may be submitted to the NYSDEC Commissioner for determination. See 6 NYORR § 617.6(b)(5).The SEQRA regulations provide that the NYSDEC Commissioner, in designating the lead agency, must consider: (@) whether the anticipated impacts ofthe action being considered are primarily of Wide, regional, ot local significance G.c. if such impacts of primarily local significance, all other considerations being equal, the local agency involved will be lead agency); (b) which agency has the broadest governmental powers for investigation of the Jmpact(s) of the proposed action; and {© which ageney has the greatest capability for providing the most thorough cnyivonmental assessment of the proposed action. 1d, § 617.6(b)(5)(). As long as the NYSDEC Commissioner considered the criteria set forth in 6 NYCRR §617.6(0)(5)(¥), and a rational basis exists in the record for the NYSDEC Commissioner's decision, however, this Court's review is at an end, See Matter of Residents for More Beautiful Port. Washington v Department of Envtl, Conservation of State of N.Y., 153 [AD24 746, 747 (24 Dept 1989) (“since the selestion of the ‘Authority as the SEQRA lead agency for the proposed plan had a rational basis in the record, we will not disturb the DEC's determination designating the Authority as the lead agency”), ly denied 75 NY2d 703 (1990). Indeed, the NYSDEC Commissioner's lead agency decision is precisely the type of administrative action that involves factual determinations falling within the ‘Commissioner's 34particular expertise, and thus it must be afforded significant deference doring this Court's review. See Flacke v Onondaga Landfill Sys,, 69 NY2d 355, 363 (1987) (where, as here, the judgment of the ageney involves factual evaluations in the area of the agency's expertise and is supported by the record, such judgment must be accorded great weight and judicial deference”); Matter of Fogelman v New York State Dept, of Envtl. Conservation, 74 AD3d 608, 810 (2d Dept 2010). Furthermore, under New York law, only SEQRA involved agencies have standing to challenge @ lead agency designation. PHV Petitioners, a private organization and three randownets, plainly are not SEQRA involved agencies—“an ageney that has jurisdiction by law to fund, approve or direotly undertake an action.” 6 NYCRR § 617.269). In addition, SEQRA defines the “Lead agency” as “an involved agency principally responsible for undertaking, funding or approving an action.” Id. § 617.2(u) (emphasis added). Only the Village Board and the Town Board have discretionary approval authority over the annexation petition. See GML § 711. As such, PHY Petitioners lack standing. See ¢.s. Matter of Incorporated Vil. of Poquott v Cahill, 11 DSA 536, 539 @d Dept 2004) (municipality “was not entitled to notice that a lead agency was to be established, or to participate in or challenge LIPA’s selection as lead agency. ‘At best, the [municipality] was an “inferested agency,” which had no greater Fight (0 participate in the review process than any member of the publie would have” [emphasis added and citation omitted), lv dismisses part and denied in part 5 NY3d 819 (2005); Matter of King v County of Samtoga Indus. Dev. Agency, 208 AD24 194, 201 (Gd Dept 1995) (We find that the Commissioner rationally concluded that the Town did not have standing to challenge SCIDA’s designation since, by virtue of the changes in the application before SCIDA, the Town no longer was an “involved agency”), ly denied 85 NY2d 809 (1995). Moreover, as demonstrated below 55Point Vil, infte), because the 507-aere annexation was not approved, the PHY Petitioners are not aggrieved by the selection of the Village Board as the lead agency. even if the PHV Petitioners had standing, the NYSDEC Commissioner properly determined that only two agencies qualified as “involved agencies” eligible to serve as the lead agency under the SEQRA regulations—the Village Board of Kiryas Joel and the Town Board of Montoe, (TVIR.717); see Matter of Congdon v Washington County, 130 AD2d 27, 32 (Bd Dept 1987) (“It is vital that the body selected as the lead agency have decision-making power”), lv denied 70 NY2d 610 (1987). A review of the seven Commissioner's decisions on lead agency disputes with respect to annexation have all consistently held that the only involved agencies in those disputes were the municipalities whose teritories were affected, even though each of the municipalities would have had school districts potentially affected consequentially by the proposed annexations, See Commissioners’ Decisions on Lead Agency Disputes: Annexation, available at bitpi/www.decany.gov/permits/6531.html. Indeed, under the ‘Annexation Law, it is the sole obligation ofthe affected local governments to determine whether the petition complies with the law, issue the statutory notices, hold the necessary hearings, and finally, determine whether it isin the overall public interest to approve the proposed annexation. ‘See id, §§ 703 (petition), 704 (notice), 705 (heating), 711 (determination). Teis the obligation of the governing boards of the affected local governments to also consider the effects on any school district situated wholly or partly in the proposed territory. See id, § 711(1) (each affected local government shall determine . .. whether, on the basis of considerations including but not limited to those relating to the effects upon ... any school district situated wholly or partly in such territory, its in the over-all public interest to approve such proposed annexation.”), 356‘The Annexation Law does not, however, provide or authorize any discretionary decision- making authority over the annexation decision in any school or other special district, Likewise, the Annexation Law does not provide or authorize any discretionary decision-making authority over the annexation in Orange County, or even in the NYSDEC. Therefore, neither the Monroe Woodbury Central School District nor Orange County, which claimed entitlement to serve as the SEQRA lead agency, or NYSDEC are “involved agencies” with respect to the annexation petition, which would have been eligible to serve as the SEQRA lead agency. ‘As conclusively demonstrated in the subject lead agency decision, the NYSDEC Commissioner properly considered all of the required criteria, and his selection of the Village Board of Kiryas Joel as the SEQRA lead agency for the review of the proposed annexation is adequately supported by the record. Therefore, this Court should defer to the NYSDEC Commissioner's interpretation and application of the SEQRA regulations, and not disturb the NYSDEC Commissioner's decision. See Flacke, 69 NY2d at 363; Fogelman, 74 AD3d at 810. A. The Anticipated Impacts of the Action Being Considered are Primarily of Local Significance to the Village. ‘As the NYSDEC Commissioner properly considered, the anticipated direct physical impacts of the annexation action being considered by the Village and Town are primarily of local significance to the Village of Kiryas Joel. See 6 NYCRR § 617.6(b)(5)(v)(a); see also e.g. Lead Agency Dispute: Town Board of the Town of North Greenbush vs. Common Council of the City of Rensselaer, Commissioner’s Determination of Lead Agency (Sept. 9, 2008), available at httpy/swww.dee.ny.gov/permits/51260.html, While no development project has been proposed with the annexation petition, any future land uses and construction-related impacts in the annexation territory will occur entirely within the Village, assuming approval of the annexations. (TVIR. 719-720). Existing residential neighborhoods within the Village will be most impacted 37as a result of such future development and construction, including impacts to traffic patterns and noise, dust, air quality, natural resources, community character and safety impacts, all of which are primarily local in nature, (1d). In addition, the Village will be required to develop and maintain local Village roads required by the development of the annexed lands as well as to provide for publie safety of residents living on these parcels. ({d.). Importantly, the Village controls and manages the public water supply that would be required for development of the annexed parcels. (Id,). Indeed, as the NYSDEC Commissioner found, Kiryas Joel is committed to providing municipal water services to at least two residential developments within the lands proposed to be annexed, regardless of whether the annexation is approved. (T'VJR. 721). Similarly, the Village owns a local wastewater treatment plant serving properties within the Village. Thus, the Village is uniquely capable of assessing local impacts on its municipal resources. As the NYSDEC Commissioner properly recognized, the Village is in a better position to review these important local impacts than the Town. ‘Thus, as set forth at 6 NYCRR § 617.6(b)(5)(v)(a), all other considerations being equal, the Village is the agency with the greatest amount anticipated local impacts. Although the NYSDEC Commissioner ruled that the first criterion favored neither municipality because the anticipated impacts were primarily local, not regional or statewide, and both municipalities were local involved agencies, the record actually demonstrates that the Village Board is better suited under this criterion to serve as lead agency. The NYSDEC Commissioner's precedent in other lead agency dispute decisions likewise supports the Village Board as better qualified under the first criterion, Nevertheless, because the NYSDEC Commissioner reasonably considered the first criterion for resolving a lead agency dispute under 386 NYCRR § 617.6(6)(5)(v), and a rational basis exists in the record for his determination, the NYSDEC Commissioner's decision should not be disturbed, B. The Village Board has the Broadest Governmental Powers for Investig: Impact(s) of the Proposed Action. The Village has the broadest governmental powers for investigation and assessment of the impacts of the proposed annexation. See 6 NYCRR § 617.6(b)(5)(w)(b). As noted in the NYSDEC Commissioner's decision, the Village will have the primary authority over zoning and development approvals for any future development of the annexed lands, (TVIR. 720). The Village, through its Board of Trustees, Planning Board, Zoning Board of Appeals, and its Building Department will be responsible for review and approval of future development projects and will thus be responsible for identifying and requiring mitigation for any impacts that may result, (a), Likewise, the Village controls and manages the only available public water supply serving the Village and to be expected to service the annexed Jands and, therefore, is in the best position to assess the potential impacts of the annexation on that resource. (id). Indeed, the Village already provides water (pursuant to NYSDEC approval) to certain residential properties sin the Town that are included in the proposed annexation petition and will likely continue to a rr——Ci “Ee (IVIR. 720-721). As the ———————————L been determinative of rr — =F Moreover, the Village also owns the local wastewater treatment plant and will likely be requested to provide available capacity to accommodate future development of the annexed lands. (id). ‘Although the NYSDEC Commissioner recognized that the Village and Town authority and power with respect to investigating and approving the annexation itself may be relatively equal (TVIR. 722), the Village is ultimately in a etter position to project future development 59and its impacts should the annexation be approved since, as described in the Village’s submissions to the NYSDEC Commissioner and in the Commissioner's decision, the Village is mote uniquely qualified to provide necessary municipal services to accommodate the annexed parcels and will be responsible for review and approval of any future development. (TVJR. 720- 721). Even without annexation, the Village still possesses significant government control over the future development of these lands via its ownership and control of necessary water and sewer infrastructure, ([d.). ‘Thus, as in the Town of Potsdam and Village of Potsdam decision, here, the NYSDEC Commissioner rationally found that, based on the record, the second criterion weighs in favor of the Village Board being designated as the lead agency. See Lead Agency Dispute: Town of Potsdam and Village of Potsdam, Commissioner's Determination of Lead Agency (August 18, 2009), available at http:!/www.dec.ny.gov/permits/57511 html, In Town of Potsdam, the Village and Town of Potsdam each sought to be designated as lead agency for a proposed annexation of 5.79 acres from the Town of Potsdam to the Village of Potsdam. The petitioner/property-owners sought to develop their properties and needed access to water regardless of whether or not the annexation was approved. In determining that the second criterion favored the Village as lead agency for the SEQRA review, the Commissioner noted that “even in the event that annexation does not take place, the Village could still be involved in the resolution of sewer and water issues, while the Town would only have jurisdiction if the annexation fails.” Id, ‘As the NYSDEC Commissioner recognized, the circumstances in the instant action are strikingly similar to those in the Town of Potsdam decision, The properties proposed to be annexed here are privately owned by individuals and entities seeking to become part of the Village because of the types of services available in the Village. Regardless of whether the 60annexation is approved, the owners of the properties are already and will continue to seek to SL rr————S=— already have agreements swith the Village to connect to the Village water supply, itis presumed that others will also seek to connect, requiring approval by the Village. Thus, the ‘Village will remain an important provider of municipal services irrespective of whether annexation is approved. As such, consistent with prior Commissioner's decisions, the NYSDEC Commissioner properly found here that the second eritesion favored the Village Board to tbe designated as the SEQRA lead agency for the review of the proposed annexation. C. The Village Board has the Greatest Capability for Providing the Most ‘Thorough Environmental Assessment of the Proposed Action. ‘The third eriterion favors the agency with the greatest capability for providing the most thorough environmental assessment of the or ——— §.617.6(b)(5)@9Xe). The Village has extensive experience in the management and implementation of environmental reviews of large projects under SEQRA. (TVIR. 444). For example, the Village has served as lead agency for the coordinated SEQRA reviews for both its New York City Aqueduct connection and water supply project and the construction of the Village’s wastewater treatment plant, (id). The Town did not identify any comparable related experience before the NYSDEC Commissioner, ‘As the Village demonstrated to the NYSDEC Commissioner, it has the necessary resources to fund the review and the ability to obtain assistance from consultants to undertake an adequate environmental review for the proposed annexation. (TVIR. 445). Indeed, at the time of the Iead agency dispute, the Village had already committed to prepare a GEIS for the Type T action and had retained a planning consultant, ‘Tim Miller “Associates, Ine. (“TMA”), to prepare the OBIS. (1d). By the time the NYSDEC Commissioner issued his decision, the Village’s 61consultant had been engaged in collecting all of the relevant data and research materials necessary to begin to prepare the DGEIS, Likewise, the Village’s special SEQRA counsel has been intimately involved in hundreds of SEQRA reviews related to municipal actions, including annexations. (Id.). Simply put, the Village demonstrated that it was far ahead of any other agency in its capabilities and preparation to complete the most thorough environmental assessment of the proposed annexation action, The Village also committed to a transparent SEQRA process and, in that vein, has, among other things, held multiple public scoping meetings, solicited public comments on the draft scoping document, held a public hearing with an extended written comment period for the DGEIS and created a public website where all of the SEQRA documents for the action can be accessed. (Ruzow Aff, f{ 40). Nonetheless, the NYSDEC Commissioner reasonably determined that the third criterion favored neither municipality because they were both capable of retaining experts to assist in the completion of a comprehensive SEQRA review. (TVIR. 722). Because the NYSDEC Commissioner considered all of the criteria set forth in 6 NYCRR § 617.6(b)(5)(¥), and ample support exists in the record for the Commissioner’s decision designating the Village Board of Kiryas Joe! as the SEQRA lead agency for the review of the proposed annexation, this Court should not disturb the NYSDEC Commissioner's decision. POINT IV PHY PETITIONERS’ ESTABLISHMENT CLAUSE CLAIMS SHOULD BE DISMISSED For decades, the formation and continued existence of the Village of Kiryas Joel have been subject to Establishment Clause challenges by various litigants. Without exception, these challenges have failed. Sce Kiryas Joel Alliance v Village of Kiryas Joel, 495 Fed Appx 183, 62190 (2d Cir 2012). The Establishment Clause claims raised in the petition here are yet another attempt to undermine the existence of the Village of Kiryas Joel and deny its population the same rights that are afforded to all other New York State communities and residents generally. The Village is a municipality like any other and is entitled to the same protection and treatment under the Annexation Law, and other statutes governing municipal functions, as any other municipality in the State, Because the PHV Petitioners lack standing to assert claims alleging a violation of the Establishment Clause and their claims are, in any event, barred by well-settled precedent from the United States Supreme Court, the New York Court of Appeals, and the United States Court of Appeals for the Second Circuit, this Court should dismiss PHV Petitioners’ Establishment Clause claims in their entirety. A. The PHY Petitioners Lack Standing to Challenge the Determinations Approving the 164-Acre Annexation Under the Establishment Clause. ‘A party asserting an Establishment Clause claim bears the burden of establishing standing, See Grumet v Board of Edue, of Kiryas Joel Village School Dist., 187 AD2d 16, 19 Gd Dept 1992) (holding that organization failed to allege an injury sufficient to establish standing to challenge Kiryas Joel school district on Establishment Clause grounds), mod on other grounds 81 NY2d 518 (1993); see generally Society of Plastics Indus., 77 NY2d at 769 (“The burden of establishing standing ... is on the party seeking review.”). To establish standing, a party must demonstrate (1) an injury in fact to (2) an interest arguably within the zone of interests to be protected by the Establishment Clause. See Grumet, 187 AD2d at 19; see also Matter of Dairylea Coop. v Walkley, 38 NY2d 6, 9 (1975). Although the scope and substance of a party’s rights under the Establishment Clause for standing purposes are determined by United States Supreme Court precedent, New York courts and the federal courts base standing on the fundamental requirement of an injury in fact. See Society of Plastics 63Indus., 77 NY2d at 772 (injury in fact is the touchstone” of standing). ‘The individual PHV petitioners (Allegro, Convers, and Cetqua) and PEIV in this ease have oth failed to establish a cognizable injury under the Establishment Clause and, therefore, lack standing to bring establishment Clause claims challenging the 164-aore annexation. None of them reside or own property in the annexation territory and are thus unaffected thereby. ‘The only allegations of any injury asserted by the individual PHV Petitioners are claims that they will be either “adversely impacted by the unstudied significant adverse impacts . .. on SS ———————— 415), or even more generally «directly and uniquely impacted by the annexation” Gi. 13), At best, these standing allegations claim that Petitioners” proximity to the annexation territory is sufficient to raise an Establishment Clause challenge to the approval of the annexation petitions. Proximity alone, however, is not a sufficient basis to establish an injury in fact under the Establishment Clause. See Liddle v Corps of Engineers of U.S. Anmy, 981 F Supp 544, 557 (MD Tenn 1997) (surveying Supreme Court and federal Courts of Appeals cases and holding that proximity alone does not establish standing ‘under the Establishment Clause), Moreover, courts have long rejected attempts by one party t0 CS ,rt—~—“—sSss—CS—sts LU the rights of others. See arth v Seldin, 422 US 490, 510 (1975) (ejecting standing on the basis that “taxpayer petitioners are nat themselves subject to Pentfeld's zoning practices. Nor do they allege that the challenged zoning ordinance and practices preclude or otherwise adversely affect a relationship existing between them and the persons whose tights assertedly are violated.”). Because Petitioners are not allowed to police the boundaries of the Establishment Clause (see Valley “Americans United for Separation of Church & State Inc, 454 US 464, 487 [1982] [“Their claim that the Government has violated the Estat ishment Clause does not 64provide a special license to roam the country in search of governmental wrongdoing and to reveal their discoveries in federal court."), the individual PH Petitioners lack standing, PAV has also not alleged any other injury to the organization itself. Although PHY has alleged that its mission to preserve the separation of church and state has been “harmed” by the challenged Town Boatd’s and Village Board's annexation decisions (PHY Pet, TY 7-8), the OOOO — i =seE=&=————— S$ statement of purpose is not sufficient to create standing in the absence of some other actual injury in fact. See Valley Forge Chistian Coll, 454 US at 486 (“Tift is evident that respondents are firmly commitied to the constitutional principle of separation of church and State, but standing is not measured by the intensity of the litigants interest or the fervor of his advocacy”). [As a result; PHV has filed to establish that it has suffered any injury to itself. PHY has also not alleged any injury infact to its members sufficient to give rise to Establishment Clause standing, ina representational capacity. See Warth, 422 US at S11 (“Even in the absence of injury to stsef, an association may have standing solely as the representative of its members") B. Petitioners’ Establishment Clause Claims are Barred by Supreme Court, New York Court of Appeals, and Second Circuit Precedent. ven if the PHY Petitioners could establish standing, their Establishment Clause claims would be barred by precedent from the United States Supreme Court, the New York Court of Appeals, and the United States Court of Appeals for the Second Circuit. Ses eB. Kiryas Joel ‘Alliance, 495 Fed Appx at 190 (rejecting Establishment Clause challenge ‘0 the Village's existence), Moreover the 164-aere annexation decisions by the Town and the Village are readily distinguishable from the special act legislation at issue in Board of Educ. of Kiryas Joel Sch. CS rrrrr—t—T—r—CT—i—=EE s==s_=——— exclusively rely, and readily satisfy the three-part test from Lemon v Kurtzman (403 US 602, 65612-613 [1971]), applied by New York state and federal courts in evaluating Establishment Clause challenges to governmental action, PHY Petitioners’ Establishment Clause claims are premised on the theory that the very existence of the Village of Kiryas Joel is unconstitutional. Because of the religious character of the population of the Kiryas Joel, PHV Petitioners claim that the Town and Village Boards’ votes in favor of annexation reflect the unconstitutional delegation of political power over the annexed land based on reli Beginning with the 1994 Supreme Court decision in Bd. of Educ. v Grumet, the highest federal and state courts have held that the formation and continued existence of the Village do not violate the Establishment Clause, In Grumet, the Supreme Court identified the formation of the Village as the permissive application “of a neutral state law designed to give almost any group of residents the right to incorporate.” 512 US at 703 n 7. Five years later, the New York Court of Appeals similarly held that the creation of the Village did not violate the Establishment Clause because the Village was incorporated pursuant to a religion-neutral, generally applicable law, See Grumet v Pataki, 93 NY2d 677, 696 n 12 (1999) (“Any analogy between chapter 390 and Village Law § 2-200, under which Kiryas Joel incorporated, is misplaced. Indeed, the Village Law provides a good example of a religion-neutral, generally applicable law that applies toa broad spectrum of beneficiaries, and a good contrast to chapter 390.”). Just as the formation and existence of the Village do not violate the Establishment Clause, the geographic expansion of the Village pursuant to the generally applicable Annexation Law also does not violate the Establishment Clause. 661. The Town Board’s and Village Board’s ‘Annexation Decisions Reflect the Neutral Applications of a Generally Applicable Law That Do Not Violate the Establishment Clause. PHI Petitioners’ Establishment Clause claims are based exclusively on the 1994 Supreme Court decision in Bd, of Edu. v Grumet, which invalidated a special act of the New York Legislature ereating a unique schoo! district intended t0 educate the disabled children of Satmar Hasidim residents in Kiryas Joel, Because (1) the special act did not reflect the neutral application of a generally applicable Tavs; (2) the new school district created by the special act ran uniquely eounter to the state practice of school district consolidation; and (3) there was no direct way for the Supreme Court to determine whether other religious or non-religious groups seeking a special school district had been or would be accommodated by the Legislature, the Supreme Court held that the special act impermissibly singled out a special religious sect for special treatment in a manner that failed to foreclose religious favoritism and, therefore, violated the Bstablishment Clause. See Grumet, 512 US at 696-710. Unlike the special act at issue in Bd, of Educ. v Grumet, the Town and Village annexation decisions reflect the neutral application of the generally applicable Annexation Law. “The Annexation Law does not favor one religious sect over another and also does not favor all religions as a class over the universe of nonbelievers. To the contrary, the Annexation Law is neutral to religion and simply provides the rules of procedure for consideration of any annexation petition filed in New York State, In addition, unlike the special act at issue in Bd. of Educ. v Grumet, the 164-aore annexation petition approved by the Village and the Town also does not run counter to any statewide of local practice or custom involving the annexation of land. Since the present Annexation Law was enacted in 1963, dozens of annexations have occurred, There is 67rr decisions approving the annexation petitions. Unlike the special act legislation at issue in Bd, of Educ.-v Grumety courts can evaluate whether the Village, the ‘Town, ot any other municipality has applied the Annexation Law in @ manner that affronts the Establishment Clause, The Annexation Law requires that every petition for annexation be followed by a properly noticed public hearing, ‘See GML § 704. Decisions on a petition for annexation are also a matter of public record, As a result, it will always be possible for a Court to determine whether the Annexation Law has been applied in a religiously neutral way. aS r————_— Village were required to exercise diseretion in applying the Annexation Law, the resulting decisions approving the annexation petitions somehow violated the Establishment Clause because of the religious character of the residents of Kiryas Joel. This argument fils a5 2 matter of law. No anti- discretion rule was promulgated in Bd. of Educ. v Grumet or #9 other Establishment Clause jurisprudence, for that matter, As the Supreme Court held, the “fundamental” Establishment Clause question is whether a challenged state action reflects the exercise of “government authority in a religiously neutral way.” Bd._of Bdue.y Grumet, 512 US at 703. Where govemment authority is received by a religious grouP a8 “one of many communities eligible for equal treatment under a general law,” there is no violation of the Establishment Clause. Id. All authority over the annexation teritory that will be received Py the Village of Kiryas Joel will be pursuant to the equal treatment of the Village under @ general law applicable to all religious and non-religious communities. ‘Therefore, as a mater of law the annexation decisions of the Town and the Village do not violate the Establishment Clause. 68Indeed, the United States Court of Appeals for the Second Circuit recently held that the Sr——sss=s Establishment Clause, even though the Village’s leadership allegedly overlapped with the leadership of the dominant Orthodox Jewish congregation: plaintiffs urge that they have stated an Establishment Clause claire by alleging that the Village is unlavfully entangled with religion ~ principally in that all the Village officials vee nrembers of Congregation Yetev ~ and that the Village has selectively enforced its ee against dissidents. Although the Village’s formation and constitution are veoubtedly unusual, and were reasonably questioned in the past, As not persuaded. wate district court determined, plaintiffs’ current allegations about the overlapping tes gerhip in the Village and Congregation Yetev, standing alone, are insufficient to state an Establishment Clause claim. Kiryas Joel Alliance, 495 Fed Appx at 190 (citation omitted), Acceptance of PHV Petitioners? rstablishment Clause claims would mean that any time « majority ofa municipality's residents are of a particular religious background, that municipality would be barred from annexing territory. There is simply no support in Taw for this result PHY Petitioners’ Establishment Clause claims instead reveal their true motive here—to prevent growth of a community because that community consists langely of residents holding a particular religious view. 2, The Annexation Decisions Satisfy Lemon v. Kurtzman, ‘The touchstone of the Establishment Clause is “neutrality.” See Grumet_ v Cuomo, 90 Nya 57, 69 (1997) (“statutes of general applicability that extend their benefits without regard fo religion honor the neutrality requirement and are generally beyond Establishment Clause reproach.”); compare MeCreary County. Ky. ¥ “American Civil Liberties Union of Ky., 545 US $44, 860 (2005) (“there is] no neutrality when the government's ostensible object is to take sides."). Judicial assessment of the neutrality of the Village and Town annexation decisions requires application of the three-prong test announced in Lemon v Kurtzman (403 US 602, 612- 613 [1971] [striking down law giving state aid to parochial schools)). The Lemon test requires 69that government action that interacts with religion (1) “must have a secular . . . purpose,” @ must have a “principal or primary effect... that neither advances nor inhibits religion,” and (3) «must not foster an excessive government entanglement with religion.” Skoros v City of New York, 437 F3d 1, 17 (24 Cir 2006), Lemon is readily satisfied here. a. The Purpose of the Annexation Decisions is Secular. ‘The first prong of Lemon requires that the challenged government action have a secular purpose, See Skoros, 437 F3d at 29. The annexation decisions clearly satisfy this prong, The purpose of these di ‘ons was to permit the property owners in the annexation territory to take advantage of the municipal services offered in the Village upon the Town's and Village's determinations that annexation isin the overall public interest (VIR. 13011 [“This Decision and Findings is adopted pursuant to and contains the findings required by GML Article 17 that the goveming board of the Village of Kityas Joel, as an affected local government, has made in determining that the annexation petitions comply with Article 17 and that the annexations are in the overall public interest. 13327). The fact that most of the Village's residents adhere fo one religion does not transform all Village actions into religious undertakings. See Kiryas Joel Alliance, 495 Fed Appx at 190. “The purpose of the Village's incorporation, and here annexation, is to provide municipal services and a civic, secular governmental structure to a population of people who seek it. The Now York Court of Appeals and the United States Supreme Court have expressly identified the incorporation of the Village as a secular purpose, valid under the Establishment Clause. See Bd. of Educ. v Grumet, 512 US at 703 n 7 (“the village was formed pursuant to a religion-neutral self-incorporation scheme”); Pataki, 93 NY2d at 696 n 12 (“the Village Law [under which the Village incorporated] provides a good example of a religion-neutral, generally applicable law 10that applies to a broad spectrum of beneficiaries”), Annexation pursuant to the Annexation Taw is no less secular. Moreover, the overall public interest inquiry in the Annexation Law favors annexations that provide needed municipal services to support growth and development where an increased tax: base will support improved services. See City of Gloversville v Town of Johnstown, 124 ‘AD34 1087, 1089-1090 (34 Dept 2015) (any detriment to the Town is far outweighed by the benefits of annexation to the City based on the City’s municipal water and sewer services, as well as its professional, higher-rated emergency services and the resulting ability to develop the combined parcel in the same manner and withthe same services and facilties.”). Because the snoorporation and continued existence of Kiryas Joe! do not violate the Establishment Clause, the annexation of adltional territory tothe Village under the Annexation Law is likewise permitted. b. The Primary Effeet of the Annexation Decisions Neither Advances Nor Inhibits Religion. ‘The second Lemon prong requires that the primary effect of the challenged government action neither advance nor inhibit religion. See Skoros, 437 F3d at 29. Here, the second Lemon prong is satisfied because the annexation decisions have the primary effect of altering municipal boundaries and the provision of municipal services based on numerous secular factors set forth in the Municipal Annexation Lav and case law interpreting it. ‘To the extent the municipal boards considered the effects on and benefits to the religious and cultural practices of Satmar Hasidic Jows in the context of all benefits and detriments, these considerations are, at most accommodations of religion thatthe Establishment Clause clearly allows. See id. at 31. ‘The Village is not itself religious group, but is a duly constituted municipality. “Thus, even if the effect of the annexation decisions is to provide some benefits to residents who mostly follow one religion, the Supreme Court has consistently rejected the claim that religious groups 1can never benefit from generally applicable laws. See Bowen v Kendi 487 US 589, 608 (1988) (upholding grants to religious and non-religious organizations to address adolescent sexuality because law neutral with respect to grantee’s status); Walz v. Tax Commn, of City of N.Y., 397 US 6664, 673 (1970) (upholding property tax exemption for religious properties because law exempted a “broad class of property owned by nonprofit, quasi-public corporations). ¢. The Annexation Decisions Will Not Result in Excessive Entanglement Between the Government and Religion. ‘The third prong of Lemon requires that a challenged government action not “foster[] excessive state entanglement with religion.” Skoros, 437 F3d at 35. Here, there is no excessive entanglement because there is no fusion of authority between municipal and religious entities, but rather only the potential extension of a municipal boundary on the basis of municipal services and overall community ties between the annexation territory and the Village. See GML § 711. The extension of the Village’s boundaries to include the annexation territory does not require discernment of any religious practices; nor has any governmental authority been delegated on the basis of religion or religious status. Instead, the Village’s and Town’s annexation decisions were simply the exercise of municipal authority by duly elected board members conferring on annexation territory residents the right to vote on the annexation. POINT V PHY PETITIONERS’ GENERAL MUNICIPAL LAW § 51 CLAIMS SHOULD BE DISMISSED A. PHY Petitioners Lack Standing to Assert General Municipal Law § 51 Claims. General Municipal Law § 51 is an anti-corruption statute focused on allowing a narrowly defined, specific class of citiz -taxpayers to challenge fraud or illegal conduct by their local ‘government where such actions threaten the public interest. See Long Is. Pine Barrens Socy. 2Inc, v County of Suffolk, 122 AD3d 688, 690 (2d Dept 2014) (“To have standing based upon their status as taxpayers, the individual plaintiffs were required to allege that the challenged act constituted a waste of or injury to public funds or, alternatively, that the challenged act was both illegal and “imperil{ed] the public interests or [was] calculated to work public injury or produce some public mischief."”), lv denied 25 NY3d 914 (2015); Montecalvo v City of Utica, 170 Miso 2d 107, 113 (Sup Ct, Oneida County 1996) (“private causes of action for public official misconduct must be read narrowly to avoid inappropriate intervention by the judiciary in public policy issues which must be decided, in the last instance, by duly elected representatives.”), aff 233 AD2d 960 (4th Dept 1996). Standing, however, is strictly limited by statutory language to a taxpayer whose assessment for real estate taxes amounts to $1,000. See GML § 51. Here, only Petitioners Allegro and Convers have alleged that they reside in the Town of Monroe, but neither has alleged they are assessed for $1,000 in real estate taxes therein, or provided any evidence of their standing to sue under GML § 51. (PHY Pet, $V 11, 16); see also Matter of Savino v Lindsay, 72 Mise 2d 609, 610 (Sup Ct, NY County 1972) (“In the absence of any showing that they meet the requirements of Section 51, petitioners may not commence a taxpayers’ action under that secti Food Mart Assoc, v City of New York, 64 Mise 2d 971, 973 (Sup Ct, Bronx County 1970) (leascholder who paid real estate taxes under his lease lacked standing under GML § 51 because he was not directly assessed or liable to the City directly for real estate taxes), afd 36 AD2d 693 (Ist Dept 1971). Petitioner Cerqua cannot claim taxpayer standing in the Town of Monroe, since his only allegation is that he resides in the Town of Woodbury (PHV Pet, J 19). Although assessment, not residence, is the determinative requirement (see Steele v Village of Glen Park, 193 NY 341, 349 [1908] [“it is not necessary that a person, bringing an action under the act of 1892 to prevent an illegal official act, should be a Bresident of the municipality”), there is nothing in the revord to even suggest that Petitioner Cerqua meets the requirements for GML § SI standing. ‘Accordingly, all individual Petitioners lack standing to bring a GML § 51 taxpayer action. PH lacks standing both as an organization and as representative of its members under GML § 51. Contrary to PHY Petitioners’ suggestion that the Court apply general rules of standing (PHY Petition, § 309), GML § 51 requires that @ petitioner actually be assessed for $1,000 in real estate taxes. See New York Pub, Interest Research Group v Board of Assessment review of City of Allany, 104 Mise 24 128, 131 (Sup Ct, Albany County 1979) (“no matter how broadly the language is construed it is clear that the statute still requires that for a potential LC r,rt~—~ti‘“CrestiCsSi‘a taxpayer”). PHV clearly cannot demonstrate such status sinee itis a Not-For-Profit Corporation. (PHY Pet, 6); see New York or — sd corporation lacked GML § 51 standing since it was not a taxpayer). PHY cannot establish standing as a representative of its members since, as discussed above, the individual Petitioners cannot demonstrate standing in their individual capacity. See Society of Plastics Indus., 77 NY2d at 775 (organization must first establish that “one or mote of sts members would have standing to sue.”)- Nor ean PHV meet the second Society of Plastics Ss == _— demonstrate that its asserted organizational purposes are germane to reducing wastes fraud or corruption, the specific zone of SrrC——“ ess the third Society of Plastics Indus, prong, because it cannot demonstrate that its GML § 51 claim does not require the SF r——C—“er———. construction, allowing a rnon-taxpayer organization with no property within the Town to bring a GML § 51 faxpayer osclaim would render the specific statutory requirements a nullity. Rejecting a similar attempt by a not-for-profit organization to assert GML § 51 standing on behalf of its members, New York courts have written, “this would not constitute a liberal construction of the statute, but instead would constitute a judicial revision of the Legislature's act.” New York Pub. Interest Research Group, 104 Mise 2d at 131. Accordingly, PHV lacks standing both as an organization and as a representative of its members to bring a GML § 51 claim, B. PHY Petitioners’ GML § 51 Claims Fail as a Matter of Law. Even if the PHY Petitioners had standing, their claims against the Town Board fail as a matter of law.’ Courts have consistently applied GML § 51 narrowly, only recognizing challenges to actual fraudulent or corrupt conduet, not simply challenges to official actions with which litigants may disagree or would otherwise be more appropriate for a CPLR article 78 proceeding. Montecalvo, 170 Misc 2d at 113 (“the private causes of action for public official misconduct must be read narrowly to avoid inappropriate intervention by the judiciary in public policy issues which must be decided, in the last instance, by duly elected representatives.”). Settled case law holds that “a taxpayer action pursuant to section 51 of the General Municipal Law lies only when the acts complained of are fraudulent, or a waste of public property in the sense that they represent a use of public property or funds for entirely illegal purposes.” Mesivta of Forest Hills Inst. v City of New York, 58 NY2d 1014, 1016 (1983) (internal quotations omitted). ‘Although PH Petitioners have included bare, generalized allegations of waste and bad faith in their third cause of action, they point to no actions or evidence of malfeasance to support ° Petitioners have only alleged GML § 51 claims against the Town Board’s vote and do not challenge the Village Board’s vote. For the reasons set forth in the sections on standing and on the merits, infra, Petitioners have alleged nothing that would allow them to challenge the Village Board’s actions under GML § 51. 15these allegations. Petitioners cannot demonstrate any evidence of bad faith, where the Petition asserts merely that the Town and Village Board’s respective resolutions will have an improper affect because they the decisions will “eede electoral territory to Kiryas Joel, which would result CO Pet, § 244). Petitioners’ only allegation of waste appears to be that the Town Board's vote will result in the toss of jurisdiction over assessed real property.” (d. {| 308). However, Petitioners have not alleged and have produced no evidence that this “loss of jurisdiction” will result in harm to the ‘Town or waste of public resources. At most, this allegation appear to allege & loss of potential rr ————— es actionable under GML § 51. S Kaskel v Impellitteri, 306 NY 73, 79 (1953) (allegations of waste must rest on sa use of public property or funds” [emphasis added]); Montecalvo, 170 Mise 2d at 111 (allegations of waste must demonstrate an expenditure of public funds for entirely illegal purposes). There is simply no authority for finding that prospective loss of potential tax revenue from private property is actionable under GML § 51, Moreover, as the Town’s annexation resolution amply demonstrated in reliance on the GEIS, whatever small decline in assessed property that may result from the annexation will be more than offset by reduced services that the Town will no longer have to provide and a projected gain in tax revenue over time, Thus, Petitioners” only claim of waste, with no concrete allegations of fraud or bad faith or any linkage to public property or funds, cannot demonstrate the type of injury actionable under GML § 51. ‘The balance of Petitioners’ GML § 51 claim rests on their Bstablishment Clause arguments, attempting to allege an “illegal offical act” As discussed above, however, Petitioners cannot demonstrate any Establishment Clause violation, and thus ‘there is no illegality to support a GML § 51 claim, Furthermore, New York law has held for nearly a century that 16< [mere illegality isnot enough! to support a GML § 51 ation, Wester N.Y. Water Co. City of Butfalo, 242 NY 202, 206 (1926). Rather, [to be entitled to this relief, when waste or injury ss not involved, it must appear that in addition to being an illegal official act the threatened act is such as to imperil the public interests or calculated to work public injury or produee some public mischief” Altschul v Ludwig, 216 NY 459, 467 (1916). Cases finding such danger to the public have recognized immediate public harm such as maintenance of a public nuisance by approving a permit for a public theater that failed to comply with the fire code, See id, at 467-468, The courts have rejected suits where there was no such public danger: for example, by dismissing a challenge toa vote by the Buffalo City Council to supply water outside the municipal boundaries in violation of the Muniefpal Law. See Westem N.Y, Water Co., 242 NY at 206, (“the fact that the municipality is thus engaged in effect in selling and delivering water toa corporation outside of the city, and that this act may be illegal, is not in our opinion enough to enable plaintiff to maintain this action”). Petitioners here have produced no facts demonstrating public injury. Wein v City of New York, 80 Mise 2d 894, 899 (Sup Ct, NY County) (granting summary judgment to defendant on GML § 51 illegal official act claim because “for a permanent injunction such as sought herein there must be a factual showing of public injury.”), aff 47 AD2d 367 (Ist Dept 1975), mod, on other grounds 36 NY2d 610 (1975). Similarly, the courts have vigilantly guarded against attempts to use GMI. § 51 to review actions with which challengers simply disagree. As the Court of Appeals bas waitten, to hold otherwise “would subject the discretionary action of all local officers and municipal bodies fo review by the courts at the suit of the taxpayers, a result which would burden the cours with litigation, without inereasing the efficiency of local administration.” Mesivta of Forest Hills Inst,, 58 NY2d at 1016 (rejecting GML § 51 challenge to defendant board of education’s alleged 11{ailure to specify in details its reasons for acquiring and remodeling school building as required by Education Law). ‘Thus, even if the Town Board’s vote on annexation was an “important government action” (PHY Pet, 309), GML § 51 is simply not the proper avenue to challenge i and Petitioners have produced no facts showing public injury. POINT VI ‘THIS COURT LACKS SUBJECT MATTER JURISDICTION TO CONSIDER, AND PETITIONERS LACK STANDING TO CHALLENGE, THE TOWN BOARD'S AND VILLAGE BOARD'S DETERMINATIONS OF THE OVERALL PUBLIC INTEREST |A. This Court Lacks Subject Matter Jurisdiction to Consider Challenges to the Town Board’s and Village Board’s Determinations of the Overall Public Interest. The Annexation Law specifically limits the scope of this Court’s subject matter jurisdiotion when reviewing challenges to annexation determinations reached by the affected local governments, Particularly, GML § 711(8) provides that “fa determination of a governing board of an affected local government conceming a matter described in paragraphs a, b, or d of subdivision one of section [705] of this article shall be subject to judicial review as provided in anticle [78] of the [CPLR].” This provision, therefore, expressly limits this Court's consideration of the Town Board’s and Village Board’s annexation determinations to the following issues: ‘a, __ Thata person signing the petition is not qualified therefor, or b. With respect to a petition, other than one purporting to be signed by owners of a majority of the assessed valuation of real property, that the persons signing such petition do not constitute twenty per centum of the persons residing ‘within such territory qualified to vote for officers of the city, town or village, as the case may be, in which the territory is situated, or c. With respect to a petition, other than one purporting to be signed by at Icast twenty per centum of persons qualified to vote for local officers, that the persons signing such petition do not represent the owners of a majority in Essessed valuation of the real property in such territory assessed upon the last preceding assessment roll of, or utilized by, the local government or governments in which the territory is situated, or 8d. That the petition does not otherwise substantially comply in form or content with the provisions of this article. GML § 705. Notably absent from the jurisdiction that the Legislature has expressly conferred upon this Court in this matter is the affected local governments’ determinations on the issue of overall public interest of the annexations. Indeed, the Legislature expressly omitted reference to subdivision (1)(e) of section 705, which specifically requires the municipal boards to consider and determine whether the proposed annexation is in the over-all public interest of the annexation territory, the Town, the Village, and affected municipal and educational services providers. See GML § 705(1)(e). As GML § 711(4) specifically provides, “[iJf the governing boards of all the affected local governments shall determine either that it is or that itis not in the over-all public interest to approve the proposed annexation, such determination shall be final and conclusive” (emphasis added). Therefore, the Legislature's intent to exclude review of the local affected governments’ overall public interest determinations from this Court’s subject matter jurisdiction could not be clearer. See e.g. Easley v. New York State Thruway Auth., 1 NY2d 374, 379 (1956); Matter of Estate of Terjesen v. Kiewit & Sons Co., 197 A.D.2d 163, 165 Gd Dep't 1994) (“It has long been held that the Legislature is presumed to know what statutes are in effect when it enacts new laws. Had the Legislature intended to add conservators to Workers’ Compensation Law § 115 at the time it enacted Mental Hygiene Law article 77, it could have done s0.”). Nevertheless, Petitioners assert claims specifically challenging the Town Board’s and Village Board’s overall public interest determinations, and the factors that the boards reviewed in aking those determinations. Specifically, PHY Petitioners attempt to challenge the alleged use of annexation to avoid compliance with the Town’s zoning Jaws (sixth cause of action), the 79alleged creation of baroque boundaries (seventh cause of action), and the overall public interest determination (eighth cause of action). PHV Petitioners also seek to challenge the overall public interest analysis concerning impacts to the Monroe-Woodbury Central School District. (PHV Pet, ${]445-455). Municipal Petitioners similarly purport to challenge the overall public interest determinations, including the alleged creation of baroque boundaries (third claim for relief), and the impacts of annexation on the fire district and school district (Municipal Pet, 67). Because this Court lacks subject matter jurisdiction to consider Petitioners’ challenges to the over-all public interest determinations by the Village and Town, these claims and the allegations concerning impacts to the school and fire districts should be dismissed. B. Petitioners Lack Standing to Challenge the Town Board’s and Village Board’s Determinations under the Municipal Annexation Law. Even if this Court had jurisdiction to consider the Town Board’s and Village Board’s determinations of the overall public interest, Petitioners lack standing to assert such claims. Under the Annexation Law, it is only one of the two municipal parties to the annexation, the Town and Village here, that may challenge determinations whether an annexation is in the overall public interest and the annexation petitions substantially comply with the requirements of the Municipal Amexation Law, and then only when the two affected boards are in disagreement. See Farlow, 92 AD2d at 938 (“We agree with Special Term that petitioners had no standing to commence the instant proceeding, A challenge to a governing board’s determination that annexation is not in the over-all public interest must be initiated in the Appellate Division of the Supreme Court by an affected governing board.”), Petitioners here are not an affeeted municipal board under the Annexation Law, and thus they lack standing to challenge the Town Board’s and Village Board’s determinations of the overall publie interest and sufficiency of the annexation petitions. None of the PHV Petitioners even submitted comments to the Town Board and 80Village Board conceming the purported insufficiency of the annexation petitions during the Municipal Annexation Law review. (T'VIR. 13042-13270). Their post hoc claims of petition insufficiency, therefore, should not be considered, See Matter of Myles v Doar, 24 AD3d 677, 678 (2d Dept 2005) (“A petitioner may not raise a new claim in a proceeding pursuant to CPLR article 78 that was not raised in the administrative hearing under review.”). To afford nearby municipalities or individuals standing to challenge the determinations of what is in the best interests of the two affected municipalities and the annexation petitioners is to transform an annexation from a purely local issue into a regional one, and allow outside entities to improperly influence the outcome, contrary to the Legislature’s express intent. Indeed, to approve an annexation, the New York Constitution requires only the consent of the affected governing boards (here, the Village and the Town) and the residents of the annexation territory, See NY Const, art IX, § 1(4) (*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. The consent of the governing board of a county shall be required only where a boundary of the county is affected.” [emphasis added); GML § 702 (“It is the intention of the legislature by the enactment of this article to provide a municipal annexation law pursuant to the provisions of the bill of rights for local governments in subdivision (d) of section one of article nine of the constitution, which provisions specify basic prerequisites to the annexation of territory from one local government to another including (1) the consent of the people, if any, of a territory proposed to be annexed and 81(2) the consent of the governing board of each local government, the area of which is affected, upon the basis of its determination that the annexation is in the over-all public interest”). No other individual or municipality is afforded a right to make or influence the determination of over-all public interest beyond the affected local governments (see Szegedin Aff., Ex. T [Governor's veto message of amendment to GML § 239-m: “This bill would amend General Municipal Law § 239-m to require the referral of certain annexation petitions to the county planning agency or regional planning council. The New York Constitution, Article IX, § 1(@, states that a county’s consent to a local annexation petition ‘shall be required only where a boundary of the county is affected.’ This bill would give counties control over local annexation petitions that would not impact a county’s boundaries, in contravention of Article IX of the New York State Constitution, I am therefore compelled to veto this bill.”]), In fact, Article IX of the New York Constitution specifically limits the County’s interest and authority in a local annexation such as this unless the County’s borders are affected (see NY Const, art IX, § 1[d] [*The consent of the governing board of a county shall be required only where a boundary of the county is affected.”)), It is undisputed here that neither annexation petition affects any boundary of the County. Petitioners, therefore, lack standing to challenge the Town Board’s and Village Board's determinations of the overall public interest and sufficiency of the annexation petitions, POINT VII PETITIONERS ARE NOT AGGRIEVED BY THE DISAPPROVAL OF THE 507-ACRE ANNEXATION Petitioners also improperly assert claims challenging the 507-aere annexation, which was not approved by both the Town and the Village, Because Petitioners are not aggrieved by the 82disapproval of the 507-acre annexation petition, and their claims challenging the 507-acre annexation are premature, those claims should be dismissed. CPLR 7801 specifically provides that “a proceeding under this article shall not be used to challenge a determination ... which is not final or ean be adequately reviewed by appeal to a court.” CPLR 7801(1). Further, “[fJor a determination to be final and binding upon the petitioner [for purposes of Article 78 review], it must be clear that the petitioner seeking review is aggrieved by the determination, and this generally occurs when the challenged action has its impact.” Matter of Platt v Town of Southampton, 46 AD3d 907, 908 (2d Dept 2007). Petitioners cannot be aggrieved by the disapproval of the 507-acre annexation petition. ‘Although the Village has challenged the Town Board’s arbitrary determination that the 507-acre annexation is not in the overall public interest before the Appellate Division, until the Appellate Division overtums the Town Board’s determination and finds that the annexation is in fact in the overall public interest, Petitioners” challenges to the 507-acre annexation determinations of overall public interest and petition sufficiency (PHV Petitioners” sixth, seventh, eighth, and ninth causes of action and Municipal Petitioners’ second and third claims for relief) are premature, ‘This Court should therefore dismiss Petitioners’ claims purporting to challenge the 507-acre annexation, At the very least, this Court should expressly sever and hold those claims in abeyance pending the Appellate Division's determination of the Village's GML § 712 proceeding concerning the 507-acre annexation. POINT VIII PETITIONERS? CLAIMS THAT THE ANNEXATION PETITIONS DO NOT COMPLY: ‘WITH THE REQUIREMENTS OF THE ANNEXATION LAW FAIL Petitioners allege that the 164-acre and 507-acre annexation petitions violate the requirements of the Annexation Law for three reasons: (1) that arbitrary carve-outs of parcels 83artificially increased the assessed valuation of the properties in the annexation territory in order to achieve the majority-approval requirement and will create “island” parcels of unincorporated ‘Town within the Village; (2) that the petitions contain errors in identifying the names of the property owners within the annexation territory; and (3) that the territory com, ing the lands proposed for annexation was not sufficiently described. Under GML § 711(3), however, this Court is authorized to review only a municipal determination involving: (a) whether a person signing the petition is qualified, (b) whether persons signing such petition constitute twenty per centum of the persons residing within the annexation territory, (¢) whether persons signing such petition represent the owners of a majority in assessed valuation of the real property in the annexation territory, or (d) whether the petition otherwise substantially complies in form or content with the provisions of GML Article 17. See also GML § 705(1)(a)-(¢); City of Middletown, 54 AD3d at 336 (finding that annexation petition “substantially complied in form and content with the provisions of article 17 of the General Municipal Law”). For the reasons discussed below, each of Petitioners’ claims lack merit. A. The Village Did Not Carve Parcels Out of the Annexation Territory. The Municipal Petitioners’ allegations that the 164-aere annexation petition somehow violates the Annexation Law because of purported “carve outs” of two tax lots by the Village is without merit, (Municipal Pet, ¥ 80-81). To the contrary, the Village Board properly determined that the 164-acre annexation petition substantially complied in form and content with the provisions of GML Article 17 and represented the majority in assessed valuation of the annexation territory. Specifically, the Village Board determined, after thorough review of the 164-acre annexation petition, that: (a) all signatories of the petition were qualified to sign; (b) the 26 petitioner signatures representing 24 parcels and $1,710,400.00 in assessed valuation 84represent 50.12% of the $3,412,900.00 total assessed valuation of the annexation territory for the year 2014; and (c) the 164-acre annexation petition substantially complied in form and content with the provisions of the Annexation Law. (TVJR. 13013-13016). Once it is determined that the annexation petitions complied with the statute, the Village was obligated to proceed. Under the Annexation Law, an annexation may be initiated by either a property owner or resident under a GML § 703 petition, or alternatively, initiated by a municipality under a GMI. § 703-a resolution. Where an annexation is initiated by a municipality under GML § 703-a, the governing board of that municipality has control of which parcels to include and exclude from the proposed annexation, See e.g. Common Council of City of Middletown v Town Bd. of the ‘Town of Wallkill, 143 AD2d 215, 217 (2d Dept 1988). Where, as here, however, an annexation petition is presented to the municipality by property owners or residents under GML § 703, the municipality has no control over the petition or the annexation territory and must accept the petition on its face. Thus, while allegations of “gerrymandering” an annexation territory by @ municipality might be plausible under a GML § 703-2 initiated annexation, they are not where, as here, the Village Board had no control over the parcels selected for annexation, The Village was duty-bound to accept the 164-aere annexation petition as presented. ‘That some property owners opted not to sign the annexation petition does not amount to an artificially carving out tax lots from the 164-acre annexation territory by the Village. The proposed annexation territory was created by the annexation petitioners based on their desire to become part of the Village and their 164-acre annexation petition substantially complied in form and content with the provisions of the Annexation Law. 85B. The 164-Acre Annexation Petition Did Not Contain Material Errors. Petitioners allege that the 164-acre annexation petition also contains errors in identifying the names of the property owners within the annexation territory and that if any of these signatures are invalidated, the petition would fall short of the majority-signature requirement. (Municipal Pet, 84). Specifically, Municipal Petitioners’ claim that the 164-acre annexation petition identifies “Upscale 4 Homes Corp” as the name of a corporation on whose behalf someone signed the annexation petition, but the name of the corporate entity that owns the identified parcel (Tax Lot 65-1-32 [fk.a, 1-2-1]) is “Upscale Y Homes Corp.” (Id. { 84). ‘Municipal Petitioners argue that if this signature is not counted towards the annexation petition, then the petition would fail to satisfy the majority valuation requirement. Petitioners’ claim is misplaced. In its review of the petition, the Village identified this discrepancy and requested clarification from the annexation petitioners’ counsel on the status of the parcel. (VIR. 12953- 12955). The annexation petitioners’ counsel responded and provided the property deed showing the record owner of the property, which is the same entity on the petition, (TWIR. 13439-13440 [deed for Parcel 65-1-32 (ffk.a. 1-2-1) indicating record owner as “Upscale 4 Homes Corp.”}). Based on the information provided, the Village determined that the person signing the 164-acre annexation petition on behalf of Upscale 4 Homes Corp. was authorized and qualified and that this alleged scrivener’s error did not invalidate the 164-acre annexation petition. PHY Petitioners’ claims as to sufficiency of the 164-acre annexation petition are also without merit, First, with respect to parcel 1-3-1.3, an authorized and qualified individual signed the petition AES 11-07 Trust. (T'VJR. 726, 13415 [indicating that Trustee Elimelech Schwarts affirmed that he was authorized to sign on behalf of the corporate property owner]). Second, 86PHY is incorrect that additional owners are listed for the 1-3-1.3 parcel. (PHV Pets’ MOL, at 44), PHY’s error is based on its misreading of the petition and the signature lines for Bakertown Realty Equities and Jacob Bandua Trust do not indicate that they have ownership interest in parcel 1-3-1.3.'° (TVJR. 728). Third, with respect to parcels 1-3-14.21; 1-3-15; and 1-3-40, contrary to PHYV’s allegatior , the signatory was authorized and qualified to sign on behalf of both corporate entities. (PHV Pets’ MOL, at 45; TVIR. 13411, 13437 [Elozer Gruber affirms that he is authorized to sign on behalf of the corporate property owners, Amazon Realty Assoc, Ine, and Burdock Realty Assoc. Inc., both of whom ate listed on the annexation petition as the ‘owners of the property in question). Fourth, the PHY Petitioners claim that the petition does not describe the territory to be annexed because Exhibit A to the petition contains 72 parcels while Exhibit C contains 71 parcels (ie. parcel 1-2-1 is listed in Exhibit A but not Exhibit C). (PHY Pets’ MOL, at 45-46). While it is true that the petition exhibit 1 contains 72 parcels and exhibit C contains 71, this discrepancy is easily reconcilable, As discussed above, parcel 65-1-32 was formally known as parcel 1-2-1, (IVJR. 13414 [identifying Parcel 65-1-32 as formally known as Parcel 1-2-1], 13415 [identifying clerical error in the record owner name for Parcel 65-1-32], 13439-13440). Exhibit A lists both former and current Section Block Lot (“SBL”) numbers for the same parcel, while Exhibit C only includes the current SBL. (TVJR. 732-733). Thus, inclusion of a parcel with its current SBL and former SBL does not invalidate the entire petition." '0 It should be noted that the Bakertown Realty Equities and Jacob Bandua Trust signature lines on DF000424 omitted parcel numbers and valuation. As such, the Village did not consider those signatures as valid nor use the value of those parcels in its calculations to determine whether petition signatures represented the majority in assessed valuation of the annexation territory. 1 Indeed, Fred Budde, Senior Planner at the Orange County Department of Planning, who has submitted an affidavit in support of Petitioners, has confirmed that he and the Orange County 87Finally, the PHY Petitioners argue that exhibit A to the petition lists SBL 61-1-1.-1 and 61-1-1.-2, while exhibit C lists SBL 61-1-1.1 and 61-1-1.2 and these “inconsistencies render it entirely impossible to discern the limits of the territory proposed for annexation.” (PHV Pets’ MOL, at 46). As the Municipal Annexation Law only requires the petition to be in “substantial compliance” with form or content (GML § 705(d)), inclusion of erroneous punctuation marks in ‘one part of the petition does not render the entire petition invalid because the annexation territory could be discerned from the petition as a whole. (T'VJR. 730-881) GQ The 507-Acre Annexation Petition Did Not Contain Material Errors. PHY Petitioners allege that the 507-acre annexation petition is insufficient because they claim Konitz Estates, LLC, Congregation Lanzut of Orange County, Bias Yisroel Congregation, ‘and Atkins Brothers, Inc. are not valid corporations. (PHV Pets’ MOL, at 40-41). Even if this Court can consider these claims relating to an annex: nn that was not adopted, the Village Board confirmed that each of these objections is erroneous. First, as shown on the Property Description Report for SBL 1-2-30.7. (TVIR. 183-184), the owner of the parcel is Koznitz Estates, LLC. Due to a clerical scrivener’s error, the “2” in Koznitz was omitted from the typed name of the property owner in the petition. (TVIR. 13427-13428). This clerical error does not invalidate the signature. Second, the Village Board confirmed that Congregation Lanzut of Orange County is in fact the record owner of SBL 1-1-47.232. (TVJR. 121-122). Third, the annexation petitioner submitted a deed for SBL 1-2-32.12, which established Bias Yisroel Congregation is the property owner of the parcel. (IVJR. 13443-13444), Fourth, the correct name of the property owner of SBL 43-1-12 is Atkins Brothers Associates Inc., as confirmed in the Affidavit of Elozer Department of Planning “are confident after examining the annexation petition and map and comparing and cross checking it with current OC Tax Map data that this is a comprehensive list of parcels in the 164 annexation territory.” 88Gruber. (TVJR. 13437-13438). Although it is not necessary to the validity of the 507-acre annexation petition, Department of State records confirmed that Atkins Brothers Associates Inc. is an active domestic business corporation. (TVJR. 13449). PHY Petitioners’ further allegation that only one owner of three jointly owned parcels signed the 507-acre annexation petition should be rejected. The signatory to the petition for SBL 1.3-14.21, 1-3-15, and 1-3-40, which are jointly owned by Amazon Realty Associates Inc. and Burdock Realty Associates Inc., affirmed that he was authorized to sign the petition on behalf of both joint owners. (TVIR. 2, 13411), The 507-aere annexation petition also accurately described the parcels included within the annexation territory. Specifically, the detailed tax map provided in Exhi it B of the 507-acre annexation petition clearly depicts each of the 177 parcels proposed for annexation, and includes detaile, formation on each individual parcel. (I'VJR. 23-417). Any purported clerical error in Exhibit A of the petition does not affect the validity of the petition, and should be garded, Finally, contrary to PHV Petitioners’ claim, SBL 43-1-11 is not and was never included in the 507-aere annexation petition itself and is erroneously included in Exhibit B. As such, Petitioners’ claims that the 164-acre and 507-acre annexation petitions are invalid should be dismissed. POINT IX THE PRIOR JURISDICTION RULE DOES NOT APPLY WHERE THE ANNEXATION PETITIONS AT ISSUE PROPOSE ANNEXATION TO THE SAME MUNICIPALITY Petitioners also attempt to use this Court’s prior decision in Commandeer Realty Assoc. Ino, to suggest that the Town Board and Village Board violated the prior jurisdiction rule by reviewing the 164-aore annexation petition simultaneously with the 507-acre annexation petition. In Commandeer Realty, however, this Court addressed “whether different municipalities may 89simultaneously attempt to annex the same territory,” and held that “the common-law prior jurisdiction rule should be followed to the extent that, once the municipal annexation process has commenced by the filing of a petition for annexation, the affected municipalities shall have exclusive jurisdiction over any annexation of the subject territory wntil the annexation process is finally concluded.” Commandcer Realty Assoc., Inc., 49 Mise 3d at 906-907 (emphasis added). This Court’s holding expressly rejects Petitioners” argument that the two affected municipalities, the Village and the Town, may not simultaneously review two annexation petitions involving only those municipalities Here, both annexation petitions seek annexation to the same municipality ~ the Village. ‘As such, the prior jurisdiction rule, as articulated by this Court in the context of annexation, is not implicated, let alone violated, by the simultaneous review of the 5O7-acre and 164-acre annexation petitions. Simply put, the fact that commencement of the 164-acre annexation petition conferred exclusive jurisdiction over any annexation of that territory to the Village and the Town does not in any way contradict the subsequent exercise of jurisdiction by the Village and the Town over the annexation territory with respect to the 507-acre annexation petition. See Matter of Town of Lansing v Village of Lansing, 80 AD2d 942, 943 (3d Dept 1981) (reviewing three annexation petitions simultaneously). As such, none of the concems expressed by this Court in Commandeer Realty are applicable herein. In fact, this Court's holding in Commander Realty — that the affected municipalities shall have exclusive jurisdiction over any annexation of the subject territory once the municipal annexation process has commenced — undermines the entire premise of Petitioners’ argument. Petitioners’ claim that simultaneous review of the 507-acre and 164-aere annexation petitions violated the prior jurisdiction rule should be dismissed. 90POINT X PHV PETITIONERS’ CLAIM UNDER THE TOWN OF MONROE ETHICS LAW SHOULD BE DISMISSED PHY Petitioners allege that the Town Board violated the Town Code of Ethics by voting in favor of the 164-acre annexation, It is the Village’s understanding that the Town Board denies any violation of the Town Code of Ethies occurred. Even assuming, for the sake of argument only, that such a violation occurred, however, PHV Petitioners concede that the only recourse for a violation is disciplinary action against the Town Board members, See Town of Monroe Code §4-9(B) (‘Any Town officer, Town Board member, Town consultant or Town employee who engages in any action that violates any provision of this code may be wamed or reprimanded or suspended or removed from office or employment by the Town Board, pursuant to the provisions of this code, applicable law or by the person or body authorized by law to impose such sanctions.”). Neither the Town Code of Ethics nor Article 18 of the GML authorizes annulment of the approval of the 164-acre annexation in which no Town Board member had a prohibited interest. Therefore, PHV Petitioners’ attempt to use an alleged violation of the Town Code of Ethies as a means to annul the approval of the 164-acre annexation should be rejected, and the claim dismissed. POINT XI PETITIONERS FAILED TO FILE A NOTICE OF CLAIM. WITH THE VILLAGE PURSUANT TO CPLR 9802 Petitioners have failed to plead and prove that they have satisfied a condition precedent to suit against the Village, Before commencing this action challenging the Village's actions, CPLR 9802 expressly required that Petitioners file a notice of claim with the Village in accordance with 1the procedures set forth in General Municipal Law § 50-e. There is no exception to this statutory precondition to suit. Petitioners failed to satisfy this condition precedent. ‘As the Court of Appeals has held, the condition precedent contained in CPLR 9802 is unforgiving. See Salesian Socy. v Village of Ellenville, 41 NY2d 521, 523 (1977) (“compliance with the [notice of claim] provisions is a condition precedent to be pleaded and proved by the one bringing suit, so that failure to present a claim within the applicable time period ordinarily ‘operates to bar any claim or action against the village for that particular cause of action” [citations and internal quotation marks omitted]), Indeed, “[tJhe ‘no other action’ language contained in CPLR 9802 permits no exceptions.” Solow v Liebman, 175 AD2d 867, 869 (24 Dept 1991), lv dismissed 79 NY2d 977 (1992); see also Schenker v Village of Liberty, 261 App Div 54, 56 (3d Dept 1941) (“The words ‘no other action’ in [the predecessor Village Law provision to CPLR 9802] are as all-inclusive as it is possible to make them’ Genesee Brewing Co. v Village of Sodus Point, 126 Mise 2d 827, $31 (Sup Ct, Wayne County 1984) (“The ‘no other action’ language contained in CPLR 9802 seems to permit no exceptions and its predecessor, former § 341-b [of the Village Law], has been so interpreted.”), aff for reasons stated below 115 AD2d 313 (4th Dept 1985). CPLR 9802 requires a notice of claim for all actions against the Village, including the one that Petitioners improperly seek to press here. See e.g. Mendik v Incorporated Vil. of Lattingtown, 76 AD3d 616, 616 (2d Dept 2010) (“{tJhe notice of claim requirements in . . . CPLR 9802 encompass causes of action for equitable relief.”); Solow, 175 AD2d at 869; see also eg, Salesian Socy,, 41 NY2d at 523; Eugene Racanelli, Inc. v Incorporated Vill. of Babylon, 92 AD3d 635, 636 (2d Dept 2012), Iv denied 19 NY3d 805 (2012). Petitioners clai s, therefore, should be dismissed. 92CONCLUSION Based on the foregoing, Respondents Board of Trustees of the Village of Kiryas Joel and the Village of Kiryas Joel respectfully request that this Court dismiss the amended petitions filed in these proceedings in their entirety, and grant them such other and further relief as the Court deems just and proper. Dated: January 22, 2016 WHITEMAN, OSTERMAN & HANNA LLP Albany, New York oy Mido Ut, John J. Henry, Michael G. Sterthous, Esq, Robert 8. Rosborough IV, Esq. Attomeys for Respondents Village Board of the Village of Kiryas Joel and Village of Kiryas Joel One Commerce Plaza Albany, New York 12260 (618) 487-7600 93