SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ORANGE
PRESERVE HUDSON VALLEY, et al.,

Ninth Judicial District

Environmental Claims Part

Petitioners/Plaintiffs,
Index No.: 3215-15
HON. FRANCESCA E. CONNOLLY

- against TOWN BOARD OF THE TOWN OF

MONROE, et al.,
Respondents/Defendants.

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ORANGE
VILLAGE OF SOUTH BLOOMING GROVE, et
al.,
Petitioners,
- against -

Ninth Judicial District

Environmental Claims Part
Index No.: 2015-007410
HON. FRANCESCA E. CONNOLLY

VILLAGE OF KIRYAS JOEL BOARD OF

TRUSTEES, et al.,
Respondents.

MEMORANDUM OF LAW IN OPPOSITION TO

THE PETITION AND THE PETITION/COMPLAINT
Sive Paget & Riesel, P.C.
460 Park Avenue
New York, NY 10022
Attorneys for the Annexation Petitioners

TABLE OF CONTENTS
PRELIMINARY STATEMENT ....................................................................................................1
STATEMENT OF FACTS .............................................................................................................3
A. The Annexation Petitions, Their Territory, and Their Signatures.......................................8
B. Much of the Territory in the 164-Acre Annexation is Already Developed ......................10
C. No Further Development in the Annexation Territory is Planned or Imminent .................6
D. The Village of Kiryas Joel and the Town of Monroe Have Scrupulously Complied with
SEQRA and the GML........................................................................................................11
ARGUMENT ...............................................................................................................................13
POINT I.
PETITIONERS SEQRA CLAIMS SHOULD
BE DISMISSED BECAUSE PETITIONERS LACK STANDING AND
THE ENVIRONMENTAL REVIEW EXCEEDED SEQRAS REQUIREMENTS ...................13
A. Petitioners Lack Standing to Assert their SEQRA Claims ...............................................13
1. The Municipal Petitioners ....................................................................................14
2. Orange County......................................................................................................19
3. Monroe Joint Fire District ....................................................................................20
4. Black Rock Fish and Game Club of Cornwall......................................................22
5. Preserve Hudson Valley .......................................................................................22
6. The PHV Individual Petitioners............................................................................23
i.

John Allegro .............................................................................................23

ii.

Emily Convers......................... .................................................................24

iii.

Louis M. Cerqua .......................................................................................25

B. The FGEIS Exceeded SEQRA's Standards and Took

a Hard Look at All Reasonably Foreseeable Potential Annexation Impacts ....................26

1. SEQRA Has a Deferential Standard of Review....................................................26

2. SEQRA Review for an Annexation Does Not Need to Include Study
of Rezoning Proposals or Development Plans Which Do Not Exist Yet..............26
3. The Village Was Not Obligated to Prepare an EIS At All, Because
the Annexation Merely Proposed to Shift a Political Boundary ...........................29
4. The FGEIS' Analysis for Ten Years into the Future Was Reasonable..................29
5. A Supplemental EIS is Not Required Because the FGEIS's Analysis Was
Complete and Reasonable ....................................................................................31
POINT II.
PETITIONERS GML CLAIMS ARE MERITLESS BECAUSE PETITIONERS LACK
STANDING AND THE ANNEXATION PETITIONS MEET ALL REQUIREMENTS ...........34
A. Petitioners Lack Standing for their GML Claims .............................................................34
B. Petitioners GML Claims are Meritless Because There Are No
Procedural Defects and All Signatures Have Been Validated ..........................................37
1. There Are No Baroque Boundaries ......................................................................38
2. The Territory Proposed for Annexation is Clearly and Accurately Described .....39
3. All Signatures Have Been Validated ....................................................................40
4. The Prior Jurisdiction Rule Does Not Block the 164-Acre Petition from
Proceeding, Because the 164-Acre Petition Does Not Conflict with the
507-Acre Petition..................................................................................................41
POINT III
THE PHV PETITIONERS CONSTITUTIONAL CLAIMS ARE MERITLESS BECAUSE
ALL ANNEXATION PROCEDURES HAVE BEEN RELIGION-NEUTRAL .........................42
A. The PHV Petitioners Lack Standing for their Establishment Law Claims .......................42
B. The PHV Petitioners Establishment Law Claims are Meritless Because
The Annexation Procedures Were Religion-Neutral ........................................................43
CONCLUSION ............................................................................................................................46

This Memorandum of Law is submitted in opposition to the Petition and the

Petition/Complaint in the above-captioned lawsuits on behalf of the property owners (the
Annexation Petitioners) who petitioned under Article 17 of the New York State General
Municipal Law (GML) to have their properties annexed into the Village of Kiryas Joel (the
Village) from the Town of Monroe (the Town) in two successive annexation petitions, the
507-Acre Annexation Petition and the 164-Acre Annexation Petition (collectively, the
"Annexations" or "Annexation Petitions").
The Petitioners in the Article 78 special proceeding in which the lead petitioner is the
Village of South Blooming Grove (Index No. 2015-7410) are hereinafter referred to collectively
as the SBG Petitioners and the units of local government that are petitioners therein are
hereinafter referred to collectively as the Local Governments. The Petitioners-Plaintiffs in the
hybrid special proceeding/declaratory judgment action (Index No. 2015-3215) are hereinafter
referred to collectively as the PHV Petitioners.
PRELIMINARY STATEMENT
The Annexation Petitioners are property owners who filed petitions to have their lands
annexed into the Village of Kiryas Joel (the Village or Kiryas Joel) as is their undeniable
right under Article 17 of the General Municipal Law. None of the Annexation Petitioners proposed
any new development of their real property along with the proposed annexations. The annexations,
once approved, would not allow a single new unit of housing to be built or any other development
to occur that had not previously been approved by the Town of Monroe (the Town). No rezoning
was proposed to accompany the proposed annexations. No development plans or applications of
any kind were proffered. There is no dispute as to these facts.

It is also undisputed that the proposed annexations do not have any effect on the political
boundaries of any of the Local Governments. Nor do the proposed annexations change the political
boundaries of any of the lands of the PHV Petitioners. The annexations that were proposed almost
entirely are limited to the lands owned by the Annexation Petitioners themselves, even though
GML Article 17 would allow them to include significantly more acreage, so long as the Annexation
Petitioners lands comprised more than half of the total assessed value of the lands proposed for
annexation. They chose not to do so and to limit, whenever possible, the lands proposed for
annexation to the lands owned by the Annexation Petitioners themselves.
Contrary to what this Court is being led to believe by all of the Petitioners, significant
portions of the land in the 164-acre annexation have already been developed or have been approved
for development by the Town and multiple other parcels are occupied by homes and other existing
buildings. Thus, the image that Petitioners hope to create of 164 acres of virgin undeveloped land,
that would be raped post-annexation, bears no relation to reality.
And to further put things into proper perspective, even the larger proposed 507-acre
annexation would change the political boundaries of an infinitesimal amount of the land in Orange
County. Excluding waterbodies, Orange County is approximately 812 square miles. At 640 acres
per square mile, Orange County has approximately 519,860 acres of land.

The 507-acre

annexation is .00096 of the Countys land area. In English that translates to less than one tenth of
one percent (.096%) of the land in Orange County. The 164-acre annexation is .031% of the land
in Orange County. These amounts of land are bought and sold on a daily basis in Orange County
and no one even raises an eyebrow. But when these tiny amounts of land are proposed to be
annexed into the Village of Kiryas Joel, according to the Petitioners the world will cease turning
on its axis.

Given the miniscule amount of territory proposed for annexation, coupled with the fact that
significant portions of the 164-acre annexation territory are either already developed or approved
for development, it ought to cause this Court to question just why it is that an unprecedented cabal
of local governments have united to attempt to prevent Kiryas Joel from being enlarged by even
an acre. Research, including Westlaw searches, were undertaken and no instance could be found
in the entire history of the State of New York in which a County and multiple units of local
government whose boundaries would not be altered an iota joined together to expend taxpayer
dollars to oppose an annexation of .096% of the land in the County, no less oppose an annexation
of .031% of the land in the County.
At the public hearing on the annexation, elected officials representing the areas within
many of the Local Governments came to the podium to fervently, in some instances vehemently,
declare their opposition to the proposed annexations. They were greeted by cheers and applause
from the hundreds of people who attended the public hearing to vociferously oppose the growth
of Kiryas Joel by even one acre. There was little civilized debate at the public hearing, instead
there was a display of demagoguery and whipping of the opposition into a fervor. There were
website postings in which thinly veiled threats were made against Town Board members who were
reminded that they would still live in the Town after they cast their vote on annexation. These are
the same people who come before this Court claiming that they are here to protect the environment
and are ostensibly motivated by the most high-minded of goals. The Annexation Petitioners are
confident that this Court is quite cognizant of what the truth is.
It is no coincidence that Eric Adams, the African-American Brooklyn Borough President,
felt the need to drive all the way from New York City to Orange County to speak at the annexation
public hearing. And he came to deliver a message that should never have had to have been spoken.

He spoke of how proud he was to have the Hasidic community in his Borough of Brooklyn. It was
a sad day in Orange County when an outsider and a representative of a racial group that knows all
too well the bitter bite of discrimination had to drive to a public hearing to remind those in
attendance that all people of all races and religions have the right to live in our country and
associate with one another. His words were eloquent and heartfelt and given the riots in Brooklyn
in which African-Americans and Hasidim were pitted against one another when David Dinkins
was Mayor, it was moving to hear an African-American elected official speak of the Hasidim as
brothers, not as aliens.
Unfortunately, as this litigation confirms, minds were already made up to the contrary.
This litigation is only the latest manifestation of a long history detailed and documented in the
Villages Memorandum of Law of the concerted efforts by those residents and elected officials
who surround Kiryas Joel to attempt to use the courts prevent the Villages growth and the growth
of the Satmar Hasidic community who call the Village home. Perhaps one of the most revealing
claims in this regard is the assertion that proposed annexations would violate the Establishment
Clause. While, in truth, this claim is likely more the product of the attempt of the PHV Petitioners
counsel to be creative, at some point lawyerly creativity gives way to the fact that lawyers are
advocating for their clients. And these PHV clients have embraced the belief that the fact that the
Annexation Petitioners are Hasidic landowners and have petitioned to have their lands annexed
into Kiryas Joel purportedly violates the Establishment Clause. Putting aside for the moment the
lack of technical legal merit to the Establishment Clause claim, the Court should not lose sight of
what the PHV Petitioners are saying when stripped of constitutional jargon. Accordingly to the
PHV Petitioners, the only group who could not lawfully petition for annexation into Kiryas Joel

are the Hasidim. No clearer statement could be made to confirm that the PHV Petitioners core
motivation is to prevent the growth of the Hasidic community in Kiryas Joel
Turning to the details of the SBG Amended Petition and the PHV Amended
Petition/Complaint in respect of the claims that the Village, as lead agency, violated the New York
State Environmental Quality Review Act (SEQRA), the Court need not reach the merits because
Petitioners lack standing. None of the Petitioners can establish any concrete environmental injury
falling within the zone of interests protected by SEQRA. All of the injuries asserted by Petitioners
are based on speculative impacts from hypothetical developments that have not been proposed.
Not a single injury is articulated, no less demonstrated, from the only actions being analyzed in
the Final Generic Environmental Impact Statement (FGEIS) the change in political boundaries
associated with the two proposed annexations. The decisional law is clear that the FGEIS for the
Annexation Petitions was not required to study speculative rezoning and development plans which
have not been proposed and do not yet exist. Indeed, given that no development has been proposed
along with the annexations, the Village Board could have lawfully adopted a negative declaration.
It should not be punished for having done more than was required under SEQRA and its FGEIS
provides a very important guide for the environmental review which will accompany development
that may occur on the annexed lands in the future post-annexation. Thus, analyses in the FGEIS
certainly confirm that the Village Board took a hard look at the potential environmental impacts
of the proposed annexations and made a reasoned elaboration to demonstrate why the proposed
annexations would not generate any significant unmitigated adverse environmental impacts. See
infra, Point I.
Petitioners' GML claims fail, because the assorted claims of procedural defects Petitioners
proffer have all been disproved, conclusively, in the record, multiple times. The Village Board,

the Town Board, as well as the Annexation Petitioners, have documented carefully and definitively
that the Annexation Territory does not have "baroque boundaries"; that the description of the
Annexation Territory is clear and accurate; and that all petition signatures are lawful and have been
properly validated and submitted in accordance with the GML. See infra, Point II.
Finally, the PHV Petitioners' Establishment Clause claim, which is not joined by the SBG
Petitioners, also fails. The PHV Petitioners contend that the Annexations would violate the
Establishment Clause because they would advance religious interests. However, because the
Annexation Petitioners followed a religion-neutral process codified in the GML, the mere fact that
the Annexation Petitioners are Satmar Hasidic property owners petitioning to have their lands
annexed into a community whose population is also overwhelmingly Satmar Hasidic cannot give
rise to an Establishment Clause violation. See infra, Point III.
For all these reasons, elaborated in greater detail infra, the Petitions should be dismissed.
STATEMENT OF FACTS
A. The Annexation Petitions, Their Territory, and Their Signatures
The initial annexation proposed was the 507-acre annexation. The processing of that
annexation petition was delayed because the Village Board and Town Board disagreed as to
which of them should serve as lead agency. The dispute was submitted to the Commissioner of
the New York State Department of Environmental Conservation (DEC) for resolution. While
that dispute was pending, the 164-acre annexation was proposed. As to it, the Town Board
acceded to the Village Board serving as lead agency. Thereafter, the DEC Commissioner ruled
that the Village Board should serve as lead agency for the 507 acre annexation. Thereafter, both
annexation petitions were reviewed in the FGEIS and the Village Board and Town Board each
adopted findings statements based on the FGEIS.

A memorandum filed with both the Village and Town Boards on behalf of the Annexation
Petitioners, dated September 3, 2015, details the reasons for the proposed annexations, why they
meet the standards in the GML, why the annexations would be consistent with smart future
growth of the Village; and the purposes for the proposed annexations. (TVJR 12928 12958). In
regard to the latter, the Memorandum details extensively the various services that the Village
provides and the Town does not. It is the provision of these services, including sidewalks, street
lighting, and emergency services, that was the principal motivation for the proposed annexations.
(TVJR 12939 12944.)
The Memorandum also addresses in exhaustive detail each and every one of the procedural
or technical objections raised by the annexation opponents, which are echoed in this litigation.
There, the assessed values were confirmed and documented (TVJR 12944 12945) and each and
every challenged petition signature was explained and validated (TVJR 12946 12954). As to the
adequacy of the description of the territory proposed to be annexed, Exhibit A to the 507-Acre
Petition sets forth a legal metes-and-bounds description of the territory to be annexed, which is
wholly adequate to detail the scope on its own. (TVJR000022.) Exhibit B to the 507-Arce Petition,
which includes almost 150 pages, provides an additional level of detail which far exceeds that
required under the Municipal Annexation Law. Ex. B has two principal components: 1) a map
depicting every single parcel proposed for annexation, and identifying them by S.B.L. number;
and 2) Property Description Reports, retrieved from official Orange County records, for every
single parcel proposed for annexation. The Property Description Reports provide significant
additional information, including the street address of the property, its owners, and the S.B.L.
(listed as Tax Map ID #). (TVJR 000001.)

The 164-Acre Petition contains a similarly

comprehensive Ex. A and Ex. B. (TVJR000725-898.)

The boundaries of the proposed annexations are rational, not baroque. Essentially, the
proposed annexations are for the territory owned by the annexation petitioners with as little
additional territory as possible. (TVJR 12956 12958.) Others who did not sign the annexation
petitions are themselves free to petition for annexation if they desire it. Notably, none of the
property owners who have been left out of the annexations are among the Petitioners challenging
the proposed annexations.
B. Much of the Territory in the 164-Acre Annexation is Already Developed
As discussed infra at Point I, Petitioners attempt to manufacture a controversy by claiming
that great environmental harm is imminent if the 164 Annexation is allowed.
To bolster their dubious SEQRA claims, Petitioners seek to portray the Annexation
Territory as an untouched wilderness, but the facts belie this narrative. Much of the land in the
164-annexation territory is already developed, bordering developed areas, or is itself already
approved for development by the Town. Moreover, virtually all of the parcels proposed to be
annexed border existing boundaries of the Village of Kiryas Joel and function as infill around
indentations in those borders. These parcels are in the natural path of the growth and expansion of
the Village and do not represent any kind of encroachment into isolated wilderness space.
C. No Further Development in the Annexation Territory is Planned or Imminent
Belying Petitioners claims that Annexation will auger unchecked and unregulated rampant
development, the undisputed facts are that no development of any kind has been proposed in
conjunction with either the 164 or the 507 acre annexations. Indeed, in an affidavit previously
filed with the Court, the Village Administrator of Kiryas Joel has also confirmed that no
development plans have been submitted. Ex.1, Szegedin Affirm 74; 82.1

Additionally, as stated in the EAF prepared by the Village for the 507-Acre Annexation, the Annexation does not
involve the approval of any specific development plans. TVJR000423-35.

10

Indeed, no development is allowed in the Village as of right. Ex. 1, Szegedin Affirm 8490. The Village Code requires site plan approval for every principal use being undertaken on land
even a single family home on a single lot, something that very few municipalities require. See
Village of Kiryas Joel Code (Village Code) 155-21 (mandating site plan review for all
permitted principal uses, including a single family home); and Village Code 155-21(A)
(containing detailed requirements for site plan approval, regarding physical dimensions, location,
size of the use, nature and intensity of the operations, parking requirements, among other
requirements).
The general requirements for site plan approval prevent any of the wanton clear-cutting or
wholesale devastation of property imagined by the Petitioners. The Village Code explicitly
prohibits any land from being used, designed or arranged to be used in any manner other than in
conformity with the Code. Village Code 155-11. Applications for site plan review must detail
how the proposed use of the site will be in harmony with the rest of the district where it is
located, explain that the landscaping will not hinder or discourage development and use of adjacent
land and buildings, and generally show that the planned use will not disturb the area.
In sum, there is simply no factual basis for the repeated insinuations and assumptions by
the Petitioners that a rash of excessive, unregulated development is imminent. Any future
development which might occur in the Annexation Territory would be fully subject to federal,
state, and local regulation, and a more informed, specific, and balanced discussion of the merits of
any future project that is proposed can be had at the time that project is proposed.
D. The Village of Kiryas Joel and the Town of Monroe
Have Scrupulously Complied with SEQRA and the GML
As discussed infra at Point I.B.2, an Environmental Impact Statement (EIS) was not
required to complete SEQRA review of the Annexation Petitions. Nevertheless, the Village, once
11

confirmed as SEQRA lead agency after being subjected to protracted dispute,2 elected to prepare
a Generic Environmental Impact Statement ("GEIS") in order to help prepare for future projectspecific SEQRA review and generally to assist future public planning efforts. Ex. 1, Szegedin
Affirm., 26.
The Village exceeded SEQRA's procedural requirements by publishing a draft scope for
comment, conducting a public scoping session, offering an extended public comment period on
the draft scope, and offering an extended public comment period on the draft GEIS. Ex. 1, Szegedin
Affirm., 30-31; 38; TVJR000902-3; TVJR000904-5; TVJR000918-1341; TVJR002392-3.
The result was a FGEIS, running into hundreds of pages, which comprehensively assessed
potential impacts of the Annexations, responded to all public comments, and met and exceeded all
of SEQRA's requirements, as discussed infra at Point I.B. The FGEIS reasonably concluded that
no significant impacts would result from the Annexations. TVJR011890-12754. The FGEIS was
followed by detailed findings statements that set forth the reasoned elaboration for the conclusions
reached by the Village and Town Boards, as the two involved governmental agencies.
The Village and Town Boards both applied a similar level of care in their certification that
the Annexation Petitions met all procedural requirements of the GML. To this end, The Village
and the Town Boards offered an extended written public comment period and held a joint public
hearing on the Annexations.
After reviewing voluminous public comments, many directed to purported procedural
issues, both the Village and the Town concluded that the Annexation Petitions fully complied with
all of the procedural requirements of the GML's Annexation Law. See TVJR013307-9 (Village of
Kiryas Joel certifying the 507-Acre Petition as completely procedurally sufficient); TVJR013310-

See TVJR000716.

12

2 (Village of Kiryas Joel certifying the 164-Acre Petition as completely procedurally sufficient);
TVJR013325-48 (Town of Monroe certifying both Annexations Petitions as completely
procedurally sufficient) ("Defects in the sufficiency of the petitions have been raised by members
of the public. The Town Board concludes that the defects claimed do not exist.").
Notwithstanding the foregoing, Petitioners have persisted in their discredited claims of
procedural defects in the Petitions, which have already received a full and fair hearing by two
municipal governments and been conclusively rejected. The Annexation Petitioners have already
responded to these alleged defects in great detail, including through obtaining affidavits from
certain of the Annexation Petitioners confirming the validity of their signatures. TVJR012910-3.
ARGUMENT
POINT I.
PETITIONERS SEQRA CLAIMS SHOULD BE
DISMISSED BECAUSE PETITIONERS LACK STANDING AND THE
ENVIRONMENTAL REVIEW EXCEEDED SEQRAS REQUIREMENTS
Petitioners allege that the environmental review of the Annexations under SEQRA was
defective. SBG Amended Petition 1-8 (cc); PHV Amended Petition 1-5. The Court need not
reach the merits of these claims because all of the Petitioners lack standing. Petitioners SEQRA
claims also fail on the merits, notably because they are premised on speculation about the impacts
of hypothetical future projects, based on rezonings and development plans which do not presently
exist and, as such, are outside the scope of SEQRA.
A. Petitioners Lack Standing to Assert their SEQRA Claims
As the New York Court of Appeals has explained, SEQRA does not authorize any person,
regardless of location or connection to the challenged project, to file suit to challenge alleged
SEQRA defects. Soc'y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 770 (1991) (Had
13

the Legislature intended that every person or every citizen have the right to sue to compel SEQRA
compliance...it could easily have so provided; it did not.). As the Court observed, allowing
everyone to seek review could work against the welfare of the community by proliferating
litigation...Citizens have an interest in efficient governmental action as well as an interest in
adequate environmental review. Id. at 779 (emphasis in original and internal citation omitted).
Instead, a would-be SEQRA litigant must demonstrate individual standing based on an
actual injury, a requirement derived from the common law tradition that the hard, confining, and
yet enlarging context of a real controversy leads to sounder and more enduring judgments. Soc'y
of Plastics Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 773 (1991). The core requirement of
standing is that a litigant must demonstrate injury in fact. Id. at 772-73. This means that the
claimed injury must be concrete and must represent an actual legal stake in the matter being
adjudicated. Id. at 772.
This injury in fact must also be distinct from that of the general public. Soc'y of Plastics
Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 774-75 (1991). As the Court of Appeals has
explained, while governmental action affecting land use can indirectly affect...a wide area,
only litigants with a direct interest which is different in kind or degree from that of the public
at large present a sufficiently concrete and personal controversy to qualify for standing. Id.; See
also In re Schulz v. NYDEC, 186 A.D.2d 941, 942, 589 N.Y.S.2d 370, 371 (3d Dept 1992)
(holding that standing to challenge government actions involving land use, on SEQRA grounds
or otherwise, requires a showing that the challenger will suffer direct harm, that is, injury which is
in some way different from that of the public at large).
Additionally, where the litigants claim is based on a statute, the alleged injury in fact
must fall within the zone of interests intended by the Legislature to be protected by the statute.

14

Soc'y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 777 (1991). For SEQRA, these
involve harms to cognizable environmental interests. Id. The purpose of this zone of interests
test it to ensure litigants are not misusing the statute to delay or defeat governmental action and
thereby advanc[ing] ends outside the legislative purview. Id. at 778. The Petitioners here
represent a textbook case of an attempt to misuse SEQRA to delay or defeat the governmental
approval of the proposed annexations.
1. The Municipal Petitioners
As a preliminary matter, the Appellate Division, Second Department has been clear that a
municipality must establish standing by asserting rights that are its own, not the collective
individual rights of residents. In re Vill. of Chestnut Ridge v. Town of Ramapo, 45 A.D.3d 74, 91
(N.Y. App. Div. 2d Dept 2007); See also Vill. of Pomona v. Town of Ramapo, 94 A.D.3d 1103,
1105 (N.Y. App. Div. 2d Dept 2012).
These specific municipal rights must arise from: 1) approval authority over a project; 2)
municipal real property interests allegedly affected by a project; 3) municipal services allegedly
affected by a project; or 4) municipal interests in determining community character. Vill. of
Pomona v. Town of Ramapo, 94 A.D.3d 1103, 1106 (N.Y. App. Div. 2d Dept 2012); In re Vill. of
Chestnut Ridge v. Town of Ramapo, 45 A.D.3d 74, 91-93 (N.Y. App. Div. 2d Dept 2007).
Notably, these rights do not include generalized complaints of environment harms
afflicting the geographic area in which the municipality is situated. In re Vill. of Chestnut Ridge v.
Town of Ramapo, 45 A.D.3d 74, 91 (N.Y. App. Div. 2d Dept 2007) (A municipality, however,
does not suffer from that traffic or noise in the same way. A municipality, as such, neither breathes
foul air, nor hears loud noises, nor waits in traffic.). Accordingly, there is no presumption of
environmental injury to a municipality merely based on its proximity to a project. Id.

15

The below table catalogues the types of harms claimed by the Municipal Petitioners. For
the reasons explained following the table, none of these purported harms can suffice as a basis for
SEQRA standing.
Table 1. Alleged Standing Injuries
Municipality

Traffic from
future
hypothetical
development

Demand for
Change in
Impact on
Impact on
County
community
drinking
natural
sewage
character
water
resources
treatment
from future
resources
from future
from future hypothetical from future hypothetical
hypothetical development hypothetical development
development
development

Village of South
Blooming Grove

Town of
Blooming Grove

Village of
Monroe

Town of
Woodbury

Village of
Harriman

Village of
Woodbury

Village of
Cornwall-onHudson

16

Town of
Cornwall
Town of Chester

Source: SBG Amended Petition, 16-23; 25.

To start, all of the above claimed injuries are based on speculation about the purported
impacts from future hypothetical development in the Annexation Territory. To emphasize, not one
of these alleged injuries arises out of the proposed annexations which are the sole actions being
analyzed under SEQRA. In other words, none of the alleged injuries arises from the mere shift of
the political boundaries between the Town and the Village. Thus, as a matter of law, all of the
alleged injuries are not harms resulting from the proposed annexations and they fall outside the
relevant zone of interests and cannot serve as a base for standing. Moreover, because they rely on
speculation about hypothetical future development and rezonings which have not yet been
proposed or submitted, they cannot suffice as the type of "concrete" injury in fact necessary to
confer standing. Soc'y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 773 (1991).
Next, five of the Municipal Petitioners (the Village of South Blooming Grove, the Village
of Monroe, the Village of Woodbury, the Town of Woodbury, and the Town of Chester) claim
that if future development occurs in the Annexation Territory in the manner in which they
postulate, the Orange County Sewer District #1, operated by Orange County, will struggle to meet
their sewage needs. In addition to being speculative, this claim fails as a matter of law, because
the Sewer District owns the sewer facilities and is responsible to delivering this service, not the
municipalities. In re Vill. of Chestnut Ridge v. Town of Ramapo, 45 A.D.3d 74, 93 (N.Y. App. Div.
2d Dept 2007) (Municipalities claim that a project might cause an overflow of the Sewer
District's facilities in the future cannot be a basis for standing since there is no claim that the
17

Villages themselves own or otherwise have responsibility for these facilities.); See also Vill. of
Pomona v. Town of Ramapo, 94 A.D.3d 1103, 1106 (N.Y. App. Div. 2d Dept 2012).
Moreover, many of the lands proposed to be annexed are within Orange County Sewer
District #1 and would be entitled to sewer service independent of annexation. Even further, as
discussed in detail by the Village in its Memorandum of Law, the County is obligated to provide
certain amounts of sewer capacity to the various units of local government within the District. The
County is required to increase its sewage treatment capacity to meet the growth needs of all of
these municipalities, including the Town and the Village. Thus, with or without annexation
community growth will require an increase in sewer capacity. Annexation does not change that
calculus one iota. Thus, there is no injury suffered by any of the Local Governments, including
the County, due to the proposed annexations.
Three of the Municipal Petitioners (the Village of Monroe, the Town of Woodbury, and
the Village of Harriman) claim that their hypothesized future development in the Annexation
Territory will cause generalized harm to natural resources within their boundaries, such as open
spaces and rivers. However, as a matter of law, municipalities may cannot assert standing for such
generalized ecological injuries to their residents. In re Vill. of Chestnut Ridge v. Town of Ramapo,
45 A.D.3d 74, 91 (N.Y. App. Div. 2d Dept 2007) (A municipality, however, does not suffer from
that traffic or noise in the same way. A municipality, as such, neither breathes foul air, nor hears
loud noises, nor waits in traffic, and is not permitted to assert the collective individual rights of its
residents[.]) (citation omitted); In re Long Island Pine Barrens Socy, Inc. v. Planning Bd. of
Town of Brookhaven, 213 A.D.2d 484, 485-86 (N.Y. App. Div. 2d Dept 1995) ([G]eneralized
allegations that this project will have a deleterious impact upon the aquifer...are insufficient to
establish their standingThat is, the subject allegations do not demonstrate that the individual

18

petitioners will suffer an environmental injury which is any way different in kind and degree from
the community generally) (citation omitted).
Finally, five of the Municipal Petitioners (the Village of South Blooming Grove, the
Village of Monroe, the Village of Harriman, the Village of Cornwall-on-Hudson, and the Town of
Cornwall) claim that future development that they speculate will occur will strain an aquifer on
which they rely for drinking water. However, these claims arise out of the general anticipated
growth rate of the entire Village of Kiryas Joel, not merely the Annexation Territory, and rely on
claims regarding wells that have not been dug yet. The Village of Kiryas Joel's lawful, responsible
planning for sufficient water, all in conformity with DEC's process of permitting, cannot be twisted
into an injury inflicted on its neighbors giving rise to standing to sue. The fact that these local
governments Petitioners feel aggrieved by the Village of Kiryas Joel's planning to ensure
sufficient water for its residents throughout the Village (not merely the Annexation Territory)
makes plain that this purported environmental injury from the Annexations is a mere pretext to
political opposition to the growth and flourishing of the Village of Kiryas Joel at all.
2. Orange County
Orange County lacks standing, as an initial matter, because it only alleges speculative
harms based on hypothetical future development in the Annexation Territory, which as a matter of
law do not qualify as injury in fact giving rising to standing. Soc'y of Plastics Indus., Inc. v. Cnty.
of Suffolk, 77 N.Y.2d 761, 773 (1991); SBG Amended Petition 24. Moreover, Orange Countys
claims of potential socioeconomic impacts to various county-wide programs are unavailing
because those programs are administered on a county-wide basis, and the issue of whether
projected population growth occurs more densely within the Annexation Territory or is dispersed
throughout the county does not affect their net impact on the County.

19

The claims of harm to the Countys finances and operations cannot serve as a basis for
standing because claims of economic harms to a would-be litigant do not fall within the zone of
interests of SEQRA. Soc'y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 777-78
(1991). More broadly, because the annexation is not proposed to change any boundary of the
County, but merely moves a political boundary which is entirely internal to the County, and
because the County will be obliged to render services to the Annexation Territory regardless which
municipality it falls within, it is apparent that the County cannot establish any concrete injury from
the Annexations at all.
Finally, for the reasons discussed above, the annexations would have no impact on sewer
capacity requirements because no development is proposed. Thus, claims of injury relating to the
County Sewer District are unavailing.
3. Monroe Joint Fire District
The Monroe Joint Fire District lacks standing, as an initial matter, because it only alleges
speculative harms based on hypothetical future development in the Annexation Territory, which
as a matter of law do not qualify as injury in fact giving rising to standing. Soc'y of Plastics
Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 773 (1991); SBG Amended Petition 26.
Additionally the claims of harms to the Fire Districts finances due to speculative allegations about
increased demands without an increased budget cannot serve as a basis for standing because
claims of economic harms to a would-be litigant do not fall within the zone of interests of SEQRA.
Soc'y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 777-78 (1991). Moreover, the
claims themselves are absurd. It makes no sense that there would be more demand on the Joint
Fire District for services when the Village has its own Fire Department which would serve the
Annexation Territory.

20

4. Black Rock Fish and Game Club of Cornwall

The Black Rock Fish and Game Club of Cornwall (BRFGC), as a nonprofit corporation,
must meet the test for associational or organizational standing. Soc'y of Plastics Indus., Inc. v.
Cnty. of Suffolk, 77 N.Y.2d 761, 775 (1991); SBG Amended Petition 27. An association must
demonstrate three required elements to pass this test: 1) one or more of its members would have
standing to sue; 2) the associations purpose is germane to alleged interest in the litigation; and 3)
neither the asserted claim nor the appropriate relief requires the participation of individual
association members. Soc'y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 775 (1991).
As a threshold issue, BRFGC fails this test because it does not establish that any one of its
members would have standing to sue. In re Long Island Pine Barrens Socy, Inc. v. Planning Bd.
of Town of Brookhaven, 213 A.D.2d 484, 486 (N.Y. App. Div. 2d Dept 1995) ([T]he Long Island
Pine Barrens Society lacks standing because it has failed to meet the key requirement to
organizational standing; i.e., that one or more of [the Society's] members would have standing to
sue) (citation omitted and emphasis in original). The SBG Petitioners merely make a generalized
claim that the annexation will cause adverse ecological impacts to a creek in Woodbury, but do
not offer any demonstration that any actual specific member utilizes that creek. Moreover, the
allegations of harm to the creek are based on a speculative chain of inferences, connecting the notyet-granted Village of Kiryas Joel application for a permit for a well in Mountainville with
hypothetical not-yet-even-proposed future Village of Kiryas Joel applications for more water
permits in the area, which might someday cause the hydraulically down gradient Woodbury
Creek to dry up such that BRFGC members cannot fish there. SBG Amended Petition, 27.
The sole affidavit offered to substantiate BRFGCs claim to standing is from James
McGee, Jr., who is the President of the BRFGC. McGee, Jr, Aff. 1. However, although this

21

affidavit states that unspecified, unnamed members of BRFGC use Woodbury Creek for fishing,
the affidavit is conspicuously bare of any claim that Mr. McGee himself uses the creek. Id.
Accordingly, as the SBG Petitioners do not demonstrate the standing of any individual member of
BRFGC, BRFGC cannot itself establish standing.
Neither can BRFGC salvage its claim to standing based on its status as the owner of
property in the Town of Cornwall and the Village of Woodbury (which BRFGC concedes is in no
way proximal to the Annexation Territory). BRFGC still fails to demonstrate a concrete, injury in
fact to its property that is distinct from the public at large. Soc'y of Plastics Indus., Inc. v. Cnty. of
Suffolk, 77 N.Y.2d 761, 774 (1991). As discussed above, BRFGC relies solely on a highlyspeculative chain of claims regarding future reductions in the capacity of Woodbury Creek, which
BRFCGs property abuts. McGee, Jr., Aff. 2.
This contrived injury cannot suffice as a basis for SEQRA standing. Even were it not so
contrived, alleged ecological damage to a shared, public water resource cannot suffice as an injury
different from the public at large. In re Long Island Pine Barrens Socy, Inc. v. Planning Bd. of
Town of Brookhaven, 213 A.D.2d 484, 485-86 (N.Y. App. Div. 2d Dept 1995) ([G]eneralized
allegations that this project will have a deleterious impact upon the aquifer...are insufficient to
establish their standing to raise this claim. That is, the subject allegations do not demonstrate that
the individual petitioners will suffer an environmental injury which is any way different in kind
and degree from the community generally) (citation omitted).
5. Preserve Hudson Valley
As with BRFCG, Preserve Hudson, as a not-for-profit corporation, must meet the
associational test for standing. PHV Amended Petition 6. Like BRFCG, Preserve Hudson also
fails to establish standing because it also fails to establish the standing of any individual member,

22

a threshold requirement for associational standing. Soc'y of Plastics Indus., Inc. v. Cnty. of Suffolk,
77 N.Y.2d 761, 775 (1991). The PHV Amended Petition makes reference to only one specific
member, John Allegro. However, for the reasons explained infra, John Allegro cannot himself
establish standing to bring claims under SEQRA, and so Preserve Hudsons attempt to establish
standing must also fail. In re Long Island Pine Barrens Socy, Inc. v. Planning Bd. of Town of
Brookhaven, 213 A.D.2d 484, 486 (N.Y. App. Div. 2d Dept 1995).
6. The PHV Individual Petitioners
(a) John Allegro
John Allegro fails to establish standing because he does establish a concrete injury different
from that suffered by the public at large. PHV Amended Petition 11-15. Mr. Allegro attempts
to rely on a claim that his residence is proximal to the 507 Acre Annexation (though he apparently
concedes that his residence is not proximal to the 164 Acre Annexation), because it is 550 feet
away. Id.
However, the law is clear that mere proximity - without specific, concrete claims of
environmental harm different from that affecting the public - does not establish standing for
SEQRA purposes. In re Barrett v. Dutchess Cnty. Legislature, 38 A.D.3d 651, 653-54 (N.Y. App.
Div. Dept 2007) (The proximity of their residence to the site of the proposed Project is
insufficient, without more, to confer standing); 55 N.Y. Jur. 2d Environmental Rights 139
([T]he mere proximity of one's property to an approved land use or project is not, in itself,
sufficient to confer standing to assert a SEQRA challenge, absent a showing of specific
environmental harm.).
To extent that proximity can even be of significance, "the relevant distance is the distance
between the petitioner's property and the actual structure or development itself, not the distance

23

between the petitioner's property and the property line of the site." In re Tuxedo Land Trust, Inc.
v. Town Bd. of Town of Tuxedo, 112 A.D.3d 726, 728 (N.Y. App. Div. Dept 2013). Because
Allegro pleads solely the distance from his residence to the "property line" of the Annexation
Territory, and not carry his burden of establishing his proximity to any proposed or even possible
structure, his proximity-based claim fails as a matter of law.
Notwithstanding the foregoing, property located at a similar distance from a proposed
project (530 ft) has been recognized not to have demonstrated any direct harm different from that
affecting the public. In re Oates v. Vill. of Watkins Glen, 290 A.D.2d 758, 760 (N.Y. App. Div.
Dept 2002).
And indeed, with respect to claims of specific harms, the PHV Petitioners provide only a
vague, threadbare recitation that Mr. Allegro will be subject, in unspecified ways, and to an
unspecified degree, aesthetic harms and harms to community character. PHV Amended
Petition, 14. These generalized allegations cannot suffice in establishing a harm greater than that
suffered by the public at large. Soc'y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 774
(1991).
The PHV Amended Petition also claims that Mr. Allegros daughter would suffer harms
due to unstudied adverse impacts of the annexation on the MWCSD, but as this unnamed,
unspecified daughter is not a party to the suit, and Mr. Allegro is not seeking to act as a
representative of his daughters interests in this suit, this claim is irrelevant. Moreover, the nature
of the alleged harms is entirely unspecified, making it impossible to discern whether it falls within
the zone of interests of SEQRA or not, and since Petitioners bear the burden of demonstrating
standing, this means the claim of standing must fail.
(b) Emily Convers

24

Emily Convers similarly fails to demonstrate standing. PHV Amended Petition 16. Ms.
Convers allegations concerning injury are even more sparse than those of John Allegro. Unlike
John Allegro, Ms. Convers makes no claim that she resides in proximity to the proposed
Annexations. PHV Amended Petition 16. Ms. Convers makes a similar claim to Mr. Allegro that
she has children in the MWCSD school system who will be affected by conspicuously unspecified
adverse impacts of the Annexations, but for the same reasons explained above in connection to
Mr. Allegro, this claim must fail. PHV Amended Petition 18. Ms. Convers also states that she is
a customer of OCSD#1, which will suffer unspecified adverse impacts from the annexation.
PHV Amended Petition 17. However, this claim is fatally vague and general, and cannot amount
to an injury distinct from the public at large that is served by OCSD#1. The mere incantation of
the phrase adverse impacts cannot suffice to establish SEQRA standing.
(c) Louis M. Cerqua
Louis M. Cerqua also fails to demonstrate standing. PHV Amended Petition 19. Mr.
Cerquas allegations of injury are the most thin of any of the Petitioners, and comprise solely the
formulaic, one-sentence recitation that he will suffer adverse, unstudied impacts on aesthetics
and community character. Absolutely zero elaboration is provided. PHV Amended Petition 21.
This is a grossly inadequate attempt to establish SEQRA standing, and it should not be
countenanced. Because it is impossible to discern any rational basis by which Mr. Cerqua could
be understood to suffer a direct injury distinct from that affecting the public at large, he cannot
meet his burden of demonstrating standing. Soc'y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77
N.Y.2d 761, 774 (1991).

25

B. The FGEIS Exceeded SEQRA's Standards and Took a

Hard Look at All Reasonably Foreseeable Potential Annexation Impacts
1. SEQRA Has a Deferential Standard of Review
Judicial review of an agency determination under SEQRA is limited to whether it was made
in accordance with lawful procedure, and whether the agency identified the relevant areas of
environmental concern, took a hard look at them, and made a reasoned elaboration of the basis
for its determination. In re Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 N.Y.3d
219, 231-32 (2007) (citations omitted); Akpan v. Koch, 75 N.Y.2d 561, 570 (1990).
When reviewing an agencys determination regarding an actions potential for adverse
environmental impact, a court is limited to reviewing whether the agencys decision was arbitrary,
capricious, an abuse of discretion, or affected by an error of law. Akpan, 75 N.Y.2d at 570; Chinese
Staff & Workers Assn v. N.Y.C., 68 N.Y.2d 359, 363 (1986). Further, SEQRA analyses need not
achieve scientific unanimity; if there is a rational basis and substantial evidence in the record to
support the lead agency's assessment and finding, it must be upheld. In re Chu v. N.Y. Urban Dev.
Corp. d/b/a Empire State Dev. Corp., 47 A.D.3d at 542, ( 1st Dept 543 2008); In re Residents for
More Beautiful Port Washington v. Town of Hempstead, 149 A.D.2d 266, 266-67 (2d Dept 1989);
In re Brooklyn Bridge Park Legal Defense Fund v. NY Urban Dev. Corp., 50 A.D.3d at 1029, 1031
(2d Dept 2008). As detailed below, Petitioners raise only vague and legally irrelevant issues
concerning the review, which are far from sufficient to justify nullifying the FGEIS.
2. SEQRA Review for an Annexation Does Not Need to Include
Study of Rezoning Proposals or Development Plans Which Do Not Exist Yet
Petitioners contend that the FGEIS was obliged to incorporate speculative future rezonings
and development, and claim the FGEIS is defective for this reason. SBG Mem. p. 13; PHV Mem.
p. 20. Yet where a proposed annexation does not include a specific rezoning proposal or
26

development plan, the law is crystal-clear that SEQRA review for that proposed annexation need
only assess the direct impacts of shifting political boundaries (such as, for example, changes in the
municipality responsible for delivering services and similar matters). In re City Council of the City
of Watervliet v. Town Bd. of the Town of Colonie, 3 N.Y.3d 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, [SEQRA review] will necessarily be
limited to the annexation itself and its effects. Where, on the other hand, an annexation is premised
upon a formal project plan, environmental review will be more extensive and must address the
specific use of the property in evaluating the related environmental effects."); In re City of
Middletown v. Town Bd. of Town of Wallkill, 54 A.D.3d 333, 337 (N.Y. App. Div. 2d Dept 2008)
(a "speculative conclusion as to how [property owners] intended to use the property" does not need
to be studied under SEQRA); Cross Westchester Dev. Corp. v. Town Bd. of the Town of
Greenburgh, 141 A.D.2d 796, 797 (N.Y. App. Div. Dept 1988) ("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.").
Fatally for Petitioners' claims, there is no development plan proposed for the Annexation
Territory and no rezoning proposed. Thus the SBG Petitioners' quotation of DEC's SEQR
Handbook to the effect that for a rezoning, a municipality should consider "the most intensive uses
allowable under the proposed zoning" is inapposite - there is no "proposed zoning" to study. PHV
Amended Petition 9.
Additionally, because SEQRA is a law of comprehensive and general applicability, any
governmental action that might occur in the future pertaining to the Annexation Territory, such as

27

a rezoning or the approval of a site plan would be subject to SEQRA at that time. Because at such
time, specifics would be available to analyze, this is a much more sensible time to conduct detailed
SEQRA review.
3. The Village Was Not Obligated to Prepare an EIS At All,
Because the Annexation Merely Proposed to Shift a Political Boundary
Under New York law, a municipal annexation of more than 100 contiguous acres is a Type
I action subject to SEQRA, which means that a municipality must assess whether there is the
potential for significant environmental impacts. 6 NYCRR, 617.4; In re City Council of the City
of Watervliet v. Town Bd. of the Town of Colonie, 3 N.Y.3d 508, 518 (2004). A Type I action
carries a "presumption" that significant environmental impacts may be possible, but this does not
mean an EIS is required for all annexations. 6 NYCRR 617.4(a).
While Type I actions are more likely to require the preparation of an EIS than Unlisted
actions, 6 NYCRR 617.4(a), [a]n EIS may usually be dispensed with in connection with a
Type I action. In re Vill. of Chestnut Ridge v. Town of Ramapo, 99 A.D.3d 918, 927 (2d Dept
2012) (citing In re Inc. Vill. of Poquott, 11 A.D.3d at 540 (rejecting challenge that Type I action
required an EIS); See also, e.g., Acton v. Wallace, 112 A.D.2d 581, 582 (3d Dept 1985) (noting
that an EIS is not required in all type I actions); In re Hells Kitchen Neighborhood Assn v.
N.Y.C., 81 A.D.3d 460, 461-62 (1st Dept 2011) (no basis for argument that a project that meets
multiple Type I thresholds requires greater scrutiny); In re Friends of Port Chester Parks v. Logan,
305 A.D.2d 676, 677 (2d Dept 2003) (same).
Accordingly, if Petitioners' supposed requirement to "analyze" phantom, non-existent
development plans is dropped, all that remains are potential impacts on the provision of local
government services as the political boundaries move. It would have been entirely rational for the

28

Village of Kiryas Joel to conclude, based on the completion of an EAF in compliance with
SEQRA, that no significant impacts would occur, and no EIS would be necessary.
This would have significantly shortened the SEQRA review process and led to a more
efficient decision-making process (which, it bears emphasis, is also in the public interest in
SEQRA matters). Soc'y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 779 (1991)
("Citizens have an interest in efficient governmental action as well as an interest in adequate
environmental review.").
However, out of a desire for transparency, and to provide a head start to future SEQRA
review of specific proposed projects, the Village of Kiryas Joel elected to complete a Generic
Environmental Impact Statement, though not legally required to do so, voluntarily exceeding
SEQRA's requirements. Ex. 1, Szegedin Affirm 26.
4. The FGEIS' Analysis for Ten Years into the Future Was Reasonable
In order to aid in future planning, the EIS set forth an analysis of reasonably projected
development in the Annexation Territory for a ten-year period. TVJR002514-48. Petitioners have
argued that this projection was not for a long-enough time period into the future. SBG Amended
Petition 9; PHV Amended Petition 258-9. This contention is unavailing as a matter of law.
New York courts have explicitly upheld the lead agency's rational discretion to select a
build horizon suiting the circumstances of the proposed project. In re Develop Don't Destroy
(Brooklyn) v. Urban Dev. Corp., 59 A.D.3d 312, 318 (N.Y. App. Div. 1st Dept 2009) ("[T]he
ultimate accuracy of the [build year] estimates is neither within our competence to judge nor
dispositive of 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.

29

The build dates having been rationally selected, there can be no viable legal claim that the EIS was
vitiated simply by their use.") (internal citation omitted); Comm. to Pres. Brighton Beach and
Manhattan Beach, Inc. v. Council of N.Y.C., 214 A.D.2d 335, 337 (N.Y. App. Div. 1st Dept 1995)
("[W]e cannot conclude that the [lead agency] failed to take the requisite hard look at the relevant
areas of environmental concern. We find no basis to conclude that the use of 1995 as a 'build year'
was spurious.").
In recognition of the difficulty of projecting the behavior of market forces with precision
far into the future, New York City's City Environmental Quality Review Manual, a leading
authority on SEQR best practices, provides that 10 years is an appropriate range of study for
generic actions where future results depend on market forces:
For some generic actionswhere the build-out depends on market conditions and other
variables, the build year cannot be determined with precision. A build year ten (10) years
in the future is generally considered reasonable for these projects as it captures a typical
cycle of market conditions and generally represents the outer timeframe within which
predictions of future development may usually be made without speculation[.]3
See also In re Chinese Staff & Workers' Ass'n v. Burden, 88 A.D.3d 425, 429 (N.Y. App. Div. 1st
Dept 2011) aff'd, 19 N.Y.3d 922 (2012) (finding 10 years to be an appropriate) ("In accordance
with accepted methodology, as set forth in the 2001 CEQR Technical Manual[the lead agency]
considered both a 'reasonable worst-case scenario' in a future 'no-action' condition, as compared
to a future 'with-action' condition over a 10year period.").
New York decisional law does not require a SEQRA review that engages in "unsupported
speculation" by projecting analyses farther into the future than the qualified experts retained by
the lead agency recommend. In re Fisher v. Giuliani, 280 A.D.2d 13, 21 (N.Y. App. Div. 1st Dept

CEQR Technical Manual (Mar. 2014), "Choosing the Analysis Years," p. 2-4. The manual does state that "generic
actions that would facilitate large-scale development" may "sometimes" warrant a build year which extend beyond
10 years, but this is inapplicable to the annexation, which does not alter or expand any development rights (unlike a
rezoning, for example). Id.

30

2001) ("At its core, petitioners' argument is that the [lead agency] 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 [lead agency] 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.") (internal citation omitted).
5. A Supplemental EIS is Not Required Because
the FGEIS's Analysis Was Complete and Reasonable
Petitioners claim that a Supplemental EIS is required both to extend the analysis further
into the future and to apply a study methodology to various issues which matches Petitioners'
preferences. SBG Mem. p. 5-7; PHV Mem. P. 27-28. These claims fail as a matter of law.
DEC's regulations provide that a Supplemental EIS may be required by the lead agency
where there are "(a) changes proposed for the project; (b) newly discovered information; or (c) a
change in circumstances related to the project." 6 NYCRR, 617.9(a)(7)(i)(a-c). None of those
circumstances is present here.
As a starting point, although Petitioners request more detail concerning certain impacts, it
is the very purpose of a Generic Environmental Impact Statement to treat impacts in a general
manner, leaving certain details to future project-specific EISs. 6 NYCRR, 617.10(a) ("Generic
EISs may be broader, and more general than site or project specific EISsThey may be based on
conceptual information in some casesThey may present and analyze in general terms a few
hypothetical scenarios that could and are likely to occur.").
Therefore, to the extent that Petitioners might wish for a more granular analysis, the
appropriate time for this kind of analysis would be when a specific rezoning or project is proposed.
31

Petitioners concerns may be fully - and more productively - addressed at that time. SEQR
Handbook (2010), p. 150 (providing that project-specific EISs may be prepared following a GEIS
once specific projects are proposed).
Petitioners also raise a variety of complaints regarding the methodology with which
specific potential impacts were studied in the FGEIS. However, these complaints are almost
entirely premised on their erroneous arguments that an EIS for an annexation is required to a) study
rezoning and development plans where they do not presently exist, and b) project impacts beyond
the 10 years recommended by qualified experts. For the reasons explained supra at Points I.B.1
and I.B.2., these contentions fail as a matter of law.
To the extent that any of Petitioners' complaints might be construed as separate and apart
from their objections concerning the need to speculate regarding future development and the need
to extend study beyond 10 years, those contentions must fail because they amount to nothing more
than a "battle of the experts." Where, as here, the lead agency has relied upon qualified experts
who have reached their conclusions rationally, petitioners may not unseat that finding simply by
hiring a counter-expert. If, as here, the record furnishes a rational basis and substantial evidence
to support FGEIS's conclusion, it must be upheld, and "scientific unanimity" is not required. Chu,
47 A.D.3d at 542, 543; See also Stork Rest. Inc. v. Boland, 282 N.Y. 256, 267 (1940) (Where
there is conflict in the testimony produced before the Board, where reasonable men might differ
as to whether the testimony of one witness should be accepted or the testimony of another witness
be rejected, where from the evidence either of two conflicting inferences may be drawn, the duty
of weighing the evidence and making the choice rests solely upon the Board. The courts may not
weigh the evidence or reject the choice made by the Board where the evidence is conflicting and
room for choice exists. [citation omitted].); See also Roosevelt Islanders for Responsible

32

Southtown Dev. v. Roosevelt Island Operating Corp., 291 A.D.2d 40, 55 (1st Dept 2001); Aldrich
v. Pattison, 107 A.D.2d 258, 276 (2d Dept 1985).
One particular issue emphasized by the Petitioners is the appropriate methodology for
projecting demographic growth in the Village of Kiryas Joel. SBG Amended Petition 64. The
FGEIS concludes that the Annexations would not induce growth in the general vicinity of the
Annexation Territory, primarily because the Village has a historically high and consistent
population growth rate of approximately 5% per year. FGEIS at 3.2-1. The FGEIS found that if
the Annexation Territory were not joined to the Village, then the Village's projected population
growth would settle in Kiryas Joel itself or in the surrounding area. FGEIS at 3.2-7. Petitioners
claim to find this implausible, but this misunderstands the unique cultural dynamics of the Kiryas
Joel community. To a greater degree than in neighboring municipalities, the norm is to settle close
to family, especially for women, a factor which has fueled Kiryas Joel's consistent high growth for
many years.
Critically, to point out that the demographics of Kiryas Joel are unusual as compared to its
neighbors cannot suffice to establish that the expert demographic analysis cited in the FGEIS is
therefore irrational. The Petitioners may not like or agree with the FGEIS's demographic findings,
but as they are supported by qualified experts and substantial evidence, Petitioners may not
overrule them.
To sum, it is plain from Petitioners' papers that their suits represent typical examples of the
misuse of SEQRA to slow down a municipal action for political reasons. Soc'y of Plastics Indus.,
Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 778 (1991); See also Hells Kitchen Neighborhood Assn
v. N.Y.C., 81 A.D.3d 460, 462 (1st Dept 2011) ([G]eneralized community objections are
insufficient to challenge an environmental review) (citation omitted). The first sign of this

33

political agenda is the inability of any of the Petitioners to demonstrate any genuine environmental
injury sufficient to establish standing at all. The vaporous, speculative nature of the alleged
environmental injuries, coupled with the determined ferocity with these Petitioners have opposed
the expansion of the Village of Kiryas Joel, suggest non-environmental motives for the opposition.
The second sign is that the purported SEQRA defects collapse under scrutiny and defy wellestablished, crystal-clear case law holding that an EIS for an annexation need only study rezoning
and development plans that are actually extant at the time of the SEQRA review, and that a 10year review horizon is regarded as well within the norm for SEQRA. Accordingly, Petitioners'
SEQRA claims should be dismissed in their entirety.
POINT II.
PETITIONERS GML CLAIMS ARE MERITLESS
BECAUSE PETITIONERS LACK STANDING AND
THE ANNEXATION PETITIONS MEET ALL REQUIREMENTS
A. Petitioners Lack Standing for their GML Claims
Under New York law, a person has standing to challenge a municipal annexation if he or
she would suffer direct harm, injury that is in some way different from that of the public at large
and if this injury falls within the zone of interests sought to be protected by the GMLs
Annexation Law. Commandeer Realty Assocs., Inc. v. Allegro, 49 Misc. 3d 891, 900 (N.Y. Sup.
Ct. Westchester Cnty 2015), citing Soc'y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761,
773-74 (1991).
An example of a direct interest that is different from that of the public at large which
falls within the zone of interests of the Annexation Law is owning taxable property in the territory
proposed for annexation. Commandeer Realty Assocs., Inc. v. Allegro, 49 Misc. 3d 891, 900 (N.Y.
Sup. Ct. Westchester Cnty 2015).

34

None of the Petitioners own property in the territory proposed for annexation, and none
can allege any direct injury at all, as discussed in connection with Petitioners lack of SEQRA
standing supra at Point I.A, let alone any direct injury falling within the zone of interests of the
Annexation Law.
Moreover, it is difficult to see how it would even be possible for any of the Petitioners to
assert an injury within the zone of interests of the Annexation Law, given that purpose of the
Annexation Law is to provide a process for the orderly effectuation of property owners right under
the New York State Constitution to exercise self-determination as to which municipality governs
their property. N.Y. Gen. Mun. Law 702 (It is the intention of the legislature by the enactment
of this article to provide a municipal annexation law pursuant to [the New York State 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 (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);
See also N.Y. Const. art IX, 1(d).
As the Court of Appeals has explained, the public interest at stake in an annexation is
limited to the benefit or detriment to [1] the annexing municipality, [2] the territory proposed to
be annexed, and [3] the remaining governmental unit from which the territory would be taken.
City of Utica v. Town of Frankfort, 10 N.Y.3d 128, 132-33 (2008), citing N.Y. Gen. Mun. Law
712 and N.Y. Const. art IX, 1(d).
None of the Petitioners asserts or can assert any injury that falls within this zone of
interests. The Municipal Petitioners are all municipalities outside the Annexation Territory who
have no role in the Annexation Laws statutory scheme and will not be impacted in any tangible

35

way by the Annexations; Orange County has no role in this Annexation because the Annexations
do not affect county boundaries, and will not be impacted in any tangible way by the Annexations;
the Monroe Joint Fire District asserts only self-interested purported economic injuries, which do
not fall within the zone of interests sought to be protected by the Annexation Law; the Black Rock
Fish and Game Club owns property far outside the Annexation Territory, has no statutory role in
the Annexations and will not be impacted by the Annexations; and the PHV Petitioners have no
statutory role in the Annexations and will not be affected in any way by the Annexations.
The lack of standing to bring claims under the Annexation Law of the PHV Petitioners and
the Black Rock Fish and Game Club, all private, non-governmental parties who own no property
within the territory proposed for annexation or within the annexing municipality, is particularly
glaring. See 2 McQuillin Mun. Corp. 7:39.47 (3d ed.) ([A] private entity which owns no real
property in the annexed areas or within the annexing municipality has no standing to challenge
either annexations by petition or annexations by ordinance.).
Additionally, the two organizational petitioners, Preserve Hudson Valley and the Black
Rock Fish and Game Club cannot meet the test for associational standing, as they do not
demonstrate that they have any natural person member who would meet the test for standing as an
individual. Soc'y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 775 (1991). Notably,
the sole named member of Preserve Hudson Valley, John Allegro, concedes that he owns no real
property in the annexed areas or within the annexing municipality. 2 McQuillin Mun. Corp.
7:39.47 (3d ed.).
Preserve Hudson Valley and the Black Rock Fish and Game Club also fail to meet the
associational standing tests requirement that the Annexation Law claims asserted are germane to
their purpose as organizations. Soc'y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 775

36

(1991). Both organizations purport to be concerned with environmental matters, but none can or
does claim any organizational purpose pertaining to municipal affairs, local government, voting,
self-determination, New York State constitutional rights, or any other theme pertinent to the
Annexation Law. For this reason alone, the Annexation Law claims of Preserve Hudson Valley
and the Black Rock Fish and Game Club must be dismissed for lack of standing.
Finally, the Petitioners arguments to overturn the Town of Monroes finding that the 164Acre Annexation is in the public interest and the Village of Kiryas Joels finding that the 164-Acre
and the 507-Acre Annexations are in the public interest must fail as a matter of law for lack of
standing, because these determinations may only be challenged by an involved government board
filing a petition to the Appellate Division. Farlow v. Town Bd. of the Town of Brookhaven, 92
A.D.2d 938, 938 (N.Y. App. Div. 2d Dept 1983) ([P]etitioners had no standing to commence the
instant proceeding. A challenge to a governing board's determination that annexation is not in the
overall public interest must be initiated in the Appellate Division of the Supreme Court by an
affected governing board).
Accordingly, the Petitioners GML claims should be dismissed for lack of standing.
B. Petitioners GML Claims are Meritless Because There
Are No Procedural Defects and All Signatures Have Been Validated
Petitioners attempt a variety of challenges to the adequacy of the Annexation Petitions, but
for the reasons explained below, none succeed. SBG Mem., p. 32; PHV Mem., p. 40. Notably, as
discussed supra in the Statement of Facts, Petitioners' claims of procedural defects in the
Annexation Petitions have been comprehensively assessed and rejected by two municipal
governments. See Record TVJR013307-9 (Village of Kiryas Joel certifying the 507-Acre Petition
as completely procedurally sufficient); Record TVJR013310-2 (Village of Kiryas Joel certifying
the 164-Acre Petition as completely procedurally sufficient); Record TVJR013325-48 (Town of
37

Monroe certifying both Annexations Petitions as completely procedurally sufficient) ("Defects in

the sufficiency of the petitions have been raised by members of the public. The Town Board
concludes that the defects claimed do not exist.").
1. There Are No Baroque Boundaries
To start, Petitioners contend that the Annexation Petitions are legally inadequate because
the territory proposed for annexation has baroque boundaries. SBG Mem., p. 32; PHV Mem., p.
39.
Yet, as plainly indicated by the 507-Acre Annexation Map and the 164-Acre Annexation
Map, the parcels proposed for the Annexations almost all constitute infill of crenellations in the
Villages existing boundary. See Record TVJR000421; TVJR000422; TVJR000736.
Moreover, parcels adjacent to the Village that were not included in the petition are owned
by parties who did not wish to join the petition. If at any time they would like to be joined to the
Village via annexation, they are free to do so by following the necessary procedures.
Notwithstanding the above, it is important to note that there are several examples of cases
where a New York court has taken note of the irregular boundaries of a proposed annexation,
and nonetheless found that annexation to be lawful and in the overall public interest. Bd. of Trustees
of Inc. Vill. of Warwick, Orange Cnty. v. Town Bd. Of the Town of Warwick, Orange Cnty., 56
A.D.2d 928, 928, 393 N.Y.S.2d 47, 47-48 (N.Y. App. Div., 2d Dept 1977); Common Council of
the City of Middletown v. Town Bd. Of the Town of Wallkill, 29 A.D.2d 561, 286 N.Y.S.2d 369
(N.Y. App. Div. 2d Dept 1967).

38

2. The Territory Proposed for Annexation is Clearly and Accurately Described

Finally, the Petitioners claim that they cannot discern, on the basis of the 164-Acre
Annexation Petition, what the scope of the territory to be annexed is. PHV Mem. p. 45; SBG Mem.
p. 38-40. These complaints are unavailing.
To start, Ex. A to the 507-Acre Petition sets forth a legal metes-and-bounds description of
the territory to be annexed, which is wholly adequate to detail the scope on its own. TVJR000022.
In addition, Ex. B to the 507-Arce Petition, which includes almost 150 pages, provides an
additional level of detail which far exceeds that required under the Municipal Annexation Law. 4
Ex. B has two principal components: 1) a map depicting every single parcel proposed for
annexation, and identifying them by S.B.L. number; and 2) Property Description Reports, retrieved
from official Orange County records, for every single parcel proposed for annexation. The
Property Description Reports provide significant additional information, including the street
address of the property, its owners, and the S.B.L. (listed as Tax Map ID #). TVJR 000001.
The 164-Acre Petition contains a similarly comprehensive Ex. A and Ex. B. See
TVJR000725-898.
Accordingly, any contention that the Annexation Territory cannot be discerned is plainly
contradicted by the record. Indeed, the two responsible municipal governments, who have actual
jurisdiction over the property at issue, had no difficulty discerning the boundaries of the proposed
Annexations. See TVJR013307-9; TVJR013310-12; TVJR000437.

Ex. B to the Petition for Annexation of 164 Acres from the Town of Woodbury to the Village of Kiryas Joel.

39

3. All Signatures Have Been Validated

The Petitioners also assert that certain of the signatures on the Annexation Petitions are
defective. As discussed supra in the Statement of Facts, Petitioners have previously presented
these same claims to the Village and the Town of Monroe, which rejected them after examining
the evidence. Notably, the Village prepared a minutely detailed chart of each comment letter and
each challenged signature, explaining why the purported procedural defects were unavailing.
TVJR013031-306.
Moreover, the Annexation Petitioners themselves have already comprehensively addressed
and responded to every single claim of signature defects that were raised in the voluminous public
comments received on the 164-Acre Annexation Petition and the 507-Acre Petition. TVJR01291458.
Notwithstanding the above, the SBG Petitioners attempt to challenge the signature for Tax
Lot 65-1-32 on the grounds that the signatory is identified as signing on behalf of Upscale 4
Homes Corp. while the owner of record is Upscale Y Homes Corp. SBG Pet. 84.
However, this is a mere clerical error of a single letter, and does not meet the legal standard
for invalidating the signature. New York courts have been clear that such a minor error is not fatal,
because the governing statutory standard is substantial compli[ance]. See N.Y. Gen. Mun. Law
705 (1)(d)(McKinney 2015) (providing that boards reviewing an annexation petition must assess
whether the petition substantially compl[ies] in form or content with the provisions of this
article.) (emphasis added); Skidmore Coll. v. Cline, 58 Misc. 2d 582, 585 (N.Y. Sup. Ct.
Schenectady Cnty. 1969) aff'd, 32 A.D.2d 985 (N.Y. App. Div. 3rd Dept 1969) (ordering town
board to find that annexation substantially complies with the provisions of [A]rticle 17 of the
General Municipal Law despite minor technical irregularities); Mitrus v. Nichols, 171 Misc. 869,

40

870 (N.Y. Sup. Ct. Broome Cnty. 1939) (The mistake [in the annexation petition] was not fatal.
It was at most a technical irregularity. That it may be disregarded is clear.).
The PHV Petitioners also take issue with a number of signatures, but these claims are
unavailing. PHV Mem., p. 40. To start, these Petitioners claim that the signature for Tax Lot 651-32 must be invalidated because Upscale 4 Homes Corp. is not an active business corporation
in New York. However, as recognized by the Local Government Petitioners, the actual owner is
Upscale Y Homes Corp. More generally, there is simply no legal requirement that only active
New York State business corporations can petition as property owners for annexation, so the entire
contention is a non-starter. PHV Mem., p. 44
The PHV Petitioners also challenge the signatures for Tax Lot 1-3-1.3, claiming that
because only three out of the four owners signed, there is no valid signature for that parcel. PHV
MOL, p. 61. This contention is unavailing, because the fourth owner authorized the other three to
sign on his behalf. See TVJR012914-58.
The PHV Petitioners additionally challenge the signatures for Tax Lots 1-3-14.21; 1-3-15;
and 1-3-40, on the basis that they are owned by the same two corporate entities, but only one
signatory has signed for them. PHV Mem., p. 61. This contention also fails, because the signatory
was authorized by both corporate entity owners. See TVJR012914-58.
Thus, at most, Petitioners assert a handful of clerical errors, which truly illustrates their
desperation to manufacture a controversy to litigate over. This falls far short of overturning the
Petitions for failure to meet the "substantial compliance" standard.
4. The Prior Jurisdiction Rule Does Not Block the 164-Acre Petition from
Proceeding, Because the 164-Acre Petition Does Not Conflict with the 507-Acre Petition

41

Finally, the PHV Petitioners, in an argument not joined by the SBG Petitioners, claim
that the 164-Acre Petition is blocked by the prior jurisdiction rule. PHV Mem., 50.
The PHV Petitioners contend that because the 164-Acre Petition concerns some of the
same land as the 507-Acre Petition, it cannot proceed until the 507-Acre Petition is completely
processed, and they cite to this Court's decision in Commandeer Realty Assocs., Inc. v. Allegro,
49 Misc. 3d 891 (N.Y. Sup. Ct. Orange Cnty. 2015).
But the PHV Petitioners misapply this precedent, because the prior jurisdiction rule
applies to conflicting annexation petitions only, not annexation petitions which might overlap
within the same affect municipalities. Commandeer Realty Associates, Inc. v. Allegro, 49 Misc.
3d 891, 915 (N.Y. Sup. Ct. 2015) ("[O]nce 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 territory at issue until the annexation process is finally concluded.")
To emphasize - the "affected municipalities" (here, the Village of Kiryas Joel and the
Town of Monroe) - have jurisdiction over "any" annexation involving the territory at issue. Id.
Accordingly, the Village and the Town are not blocked by the prior jurisdiction rule from
maintaining jurisdiction over the 164-Acre Petition.
POINT III.
THE PHV PETITIONERS CONSTITUTIONAL CLAIMS ARE MERITLESS
BECAUSE ALL ANNEXATION PROCEDURES HAVE BEEN RELIGION-NEUTRAL
A. The PHV Petitioners Lack Standing for their Establishment Law Claims
Another argument of the PHV Petitioners, which is not joined by the SBG Petitioners, is
that the Annexations are unconstitutional because they violate the Establishment Clause of the
U.S. Constitution. PHV Mem., p. 48. As an initial matter, this claim fails, because the PHV
Petitioners cannot demonstrate standing to assert it.
42

A party seeking to assert a claim in New York courts based on the Establishment Clause
bears the burden of establishing standing, which requires demonstrating an actual injury in fact
falling within the scope of the Establishment Clause. Grumet v. Bd. of Educ. of Kiryas Joel Vill.
Sch. Dist., 187 A.D.2d 16, 19 (N.Y. App. Div. 3d Dept 1992) modified, 81 N.Y.2d 518 (1993)
aff'd, 512 U.S. 687 (1994) (denying standing to organization challenging creation of Kiryas Joel
school district on Establishment Clause grounds due to lack of injury); See also In re Vill. of
Chestnut Ridge v. Town of Ramapo, 45 A.D.3d 74, 89 (N.Y. App. Div. 2d Dept 2007) (denying
standing to individuals and organization challenging zoning based on various U.S. Constitutional
grounds due to lack of injury).
As discussed supra at Point I.A, the PHV Petitioners make perhaps the most formulaic and
vague assertions of injury possible, merely claiming that they will be adversely impacted in
various generalized ways by the Annexations. PHV Amended Petition, 14-15 (John Allegro);
17-18 (Emily Convers); 19-21 (Louis Cerqua). Preserve Hudson Valley asserts no injury, but
appears solely to rely on the standing of member John Allegro, which itself does not meet required
standards. PHV Amended Petition, 7-9.
None of the Petitioners asserts any interest which even remotely connects to any U.S.
Constitutional right, let alone interests pertaining to religious liberty such as might relate to the
Establishment Clause. Notably, mere proximity to an activity alleged to violate the Establishment
Clause cannot suffice as a basis for Establishment Clause standing. Liddle v. Corps of Engineers
of U.S. Army, 981 F. Supp. 544, 557 (M.D. Tenn. 1997) (Plaintiffs mere proximity to land leased
by the federal government to the YMCA, allegedly in violation of the Establishment Clause, is
insufficient to confer standing).

43

None of the Petitioners assert any psychological injury arising from being in the presence
of an allegedly unconstitutional religious activity, but even if they did, such a claim of injury would
be insufficient to confer standing. Liddle v. Corps of Engineers of U.S. Army, 981 F. Supp. 544,
556 (M.D. Tenn. 1997). Rather, Petitioners must show that they must assume concrete special
burdens to avoid the religious activity, which they do not show either. Id.
For these reasons, the PHV Petitioners Establishment Clause claim must be dismissed for
lack of standing.
B. The PHV Petitioners Establishment Law Claims are
Meritless Because The Annexation Procedures Were Religion-Neutral
Since the PHV Petitioners contend that the fact that the property owners petitioning for
annexation are Jewish results in a violation of the Establishment Clause, it is apparent that in their
skewed world the only property owners who could lawfully petition for annexation would have to
be non-Jews. This makes no sense whatsoever and the Court need not go further in rejecting this
baseless constitutional argument.
If the Court does wish to engage in a constitutional analysis, the following demonstrates
the lack of any merit to the Establishment Clause Claim. In order to prove that a facially-neutral
government action violates the Establishment Clause, one must be able to show the absence of a
neutral, secular basis for the action. Gillette v. U.S., 401 U.S. 437, 452 (1971); see Lemon v.
Kurtzman, 403 U.S. 602, 612-13 (1971) (establishing that government actions constitutional if
they (1) have a secular purpose, (2) [have a] principal or primary effect . . . that neither advances
nor inhibits religion, and (3) do not foster an excessive government entanglement with
religion.) (citation omitted). Yet the annexation proposed here is clearly based on secular
objectives, such as facilitating the provision of local government services.

44

The PHV Petitioners seek to support their baseless Establishment Clause claim with a U.S.
Supreme Court case that held unconstitutional a state statute creating a separate school district for
the Village of Kiryas Joel. Preserve Hudson Valley Mem., p. 48.
This case is inapplicable for several reasons. To start, it involved a special act of the
legislature in creating a school district that ran uniquely counter to state practice in both its form
and its tension with the general trend of consolidating rather than segmenting school districts,
whereas the petition for annexation involves the routine use of a widely available and neutral
municipal planning process. Grumet v. Bd. of Educ. of Kiryas Joel Vill. Sch. Dist., 187 A.D.2d 16,
19 (N.Y. App. Div. 3d Dept 1992) modified, 81 N.Y.2d 518 (1993) aff'd, 512 U.S. 687 (1994);
Gillette v. U.S., 401 U.S. 437, 452 (1971); see Lemon v. Kurtzman, 403 U.S. 602, 702 (1971)
(plurality opinion).
Additionally, the Supreme Court was clear that only the school redistricting (and not the
existence of the Village) was under consideration in the case. Grumet v. Bd. of Educ. of Kiryas
Joel Vill. Sch. Dist., 187 A.D.2d 16, 19 (N.Y. App. Div. 3d Dept 1992) modified, 81 N.Y.2d 518
(1993) aff'd, 512 U.S. 687 (1994) (Kennedy, J. concurring in the judgment). As Justice Anthony
Kennedy observed, We do not confront the constitutionality of the Kiryas Joel village itself, and
the formation of the village appears to differ from the formation of the school district [because]
the village was formed pursuant to a religion-neutral self-incorporation scheme. Id.
The annexation, similarly, is provided for under a religion-neutral procedure of
municipal law, and as such, does not and cannot raise Establishment Clause issues. Accordingly,
there can be no likelihood of success on such claims.

45

CONCLUSION
For the foregoing reasons, the Petition and the Petition/Complaint should both be
dismissed in their entirety.

Dated : New York, New York

January 25, 2016

460 Park Avenue

New York, New York 10022
(212) 421-2150

46