Argued January 10, 2008; decided February 14, 2008

Matter of City of Utica v Town of Frankfort, 34 AD3d 1323, modified.

Jones, J.

In this special proceeding commenced pursuant to article 17{**10 NY3d at 132} of the General Municipal Law ("Municipal Annexation Law"), petitioner City of Utica sought annexation of approximately 225 acres of property owned by intervenor-respondent (Masonic Care Community or MCC), which supported the proposed annexation, from respondents Town of Frankfort and Herkimer County, which opposed annexation.

Pursuant to General Municipal Law § 712, the Appellate Division appointed three Referees to hear evidence and report on whether the proposed annexation was in the overall public interest. In April 2006, the Referees issued an advisory report recommending approval of the [*2]annexation. The Appellate Division confirmed the report and entered judgment granting the petition. After entry of the judgment, an MCC representative reviewed respondent Herkimer County's election records, determined that there were 65 allegedly eligible voters—all senior citizens residing on the subject property—and, through an informal poll, obtained the signatures of 53 of the 65 on a statement of support for the annexation.

Respondents Town of Frankfort and Herkimer County moved for reargument or leave to appeal to this Court. Petitioner cross-moved for, among other things, an order dispensing with the special election required under General Municipal Law § 713 based on the statement of support. The Appellate Division denied respondents' motion to reargue, granted that portion of petitioner's cross motion seeking an order dispensing with the required special election, and denied the rest of petitioner's cross motion. We granted respondent Herkimer County leave to appeal and it now argues that the Appellate Division erred by improperly determining that petitioner met its burden of establishing that annexation was in the overall public interest and dispensing with the special election required for an article 17 annexation.

The municipality seeking an article 17 annexation has the burden of proving that annexation is in the overall public interest (see General Municipal Law § 712; see also NY Const, art IX, § 1 [d]). A reviewing court must " 'weigh[ ] the benefit or detriment to the annexing municipality, the territory proposed to be annexed, and the remaining governmental unit from which the territory would be taken' " (Matter of Town of Plattsburgh v Town of Saranac, 274 AD2d 852, 852-853 [3d Dept 2000], quoting Matter of City of Saratoga Springs v Town of Greenfield, 34 AD2d 364, 366 [3d Dept 1970]). "Benefit and detriment are customarily defined in terms of municipal services such as police{**10 NY3d at 133} and fire protection, health regulations, sewer and water service, public utilities and public education" (Matter of Town of Lansing v Village of Lansing, 80 AD2d 942, 942 [3d Dept 1981]). "Another factor entering into the balance is whether the annexing municipality and the territory proposed to be annexed have 'the requisite unity of purpose and facilities to constitute a community' " (Matter of Incorporated Vil. of Ilion v Town Bd. of Frankfort, 261 AD2d 952, 952 [4th Dept 1999], quoting Matter of Common Council of City of Gloversville v Town Bd. of Town of Johnstown, 32 NY2d 1, 6 [1973]).

In Municipal Annexation Law proceedings, the Appellate Division functions as a quasi-legislative body (see Mayor of Vil. of Mount Kisco v Supervisor of Town of Bedford, 45 NY2d 335, 341 [1978]). Thus, " 'so long as the Appellate Division acted pursuant to law its judgment may not be overturned. Any issues resolved by it remain invulnerable if there was any rational basis for its findings and conclusions' " (id., quoting Matter of City Council of City of Mechanicville v Town Bd. of Town of Halfmoon, 27 NY2d 369, 373-374 [1971]).

Here, the Appellate Division applied the foregoing standard correctly and had a [*3]rational basis for its determination that annexation would be in the overall public interest. Among other things, the court compared the respective abilities of petitioner City of Utica and respondent Town of Frankfort to provide essential police and firefighter services and resolved that petitioner's services were superior. The court also concluded that MCC, the only occupant of the property in question, would be able to streamline the elder and health-related services it provides since its facilities would be located in one county. Further, the court accorded great weight to the Referees' conclusion that the impact of annexation on respondents Town of Frankfort and Herkimer County would be minimal.

However, we agree with respondent Herkimer County that the Appellate Division erred as a matter of law when it dispensed with the required special election. Article IX, § 1 (d) of the New York State Constitution provides: "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." General Municipal Law § 713 (1) implements this constitutional provision and requires that:

"Not later than ninety days after the entry of a final{**10 NY3d at 134} judgment of a court . . . approving a proposed annexation, the governing board of each city, town and village in which such territory is situated shall call a special election . . . to determine whether the proposed annexation should be approved . . . . All persons residing in such territory proposed to be annexed and qualified to vote for officers of the city, town or village, as the case may be, in which such territory is situated shall be entitled to vote. . . . Except as otherwise provided herein, such election shall be conducted in the manner provided by law for the conduct of special elections in the city, town or village, as the case may be, in which such territory is situated."

In addition, "[a]ll elections by the citizens . . . shall be by ballot, or by such other method as may be prescribed by law, provided that secrecy in voting shall be preserved" (NY Const, art II, § 7; see also Election Law § 8-300 [2] [voting "shall be secret and obscured from all other persons"]). Such secrecy ensures that votes are cast in an environment free of coercion or undue influence.

Thus, upon entry of the Appellate Division's final judgment approving a proposed annexation, the governing board of the municipality in which the proposed annexation territory is situated shall promptly (within 90 days of entry of judgment) call a special election (General Municipal Law § 713). Relatedly, the plain language of the foregoing constitutional and statutory provisions makes clear that all persons who reside on property sought to be annexed (i.e., those determined to be eligible voters) have the right to cast a secret vote or ballot in such election. Recognizing the importance and fundamental nature of this right, we hold that the special election required in a Municipal Annexation Law proceeding cannot be dispensed with no matter how few eligible voters there are or how superfluous such election might be.

We note that three Appellate Division Departments have, under certain circumstances, permitted annexation without a referendum.^[FN1] Although it may be reasonable to conclude that a special election is unnecessary if those affected by a proposed{**10 NY3d at 135} annexation signify approval to it through filing formal consent forms or entering stipulations, or through offering testimony in support of annexation at the hearing before the Referees, such a conclusion directly contravenes the State Constitution, Municipal Annexation Law and Election Law, and, therefore, goes beyond the Appellate Division's discretion in annexation proceedings.^[FN2] Based on the [*4]foregoing, we decline to recognize the Appellate Division decisions dispensing with the required special election because we do not see these decisions as setting forth adequate exceptions to the general rule requiring secret voting at a special election.

Accordingly, the order of the Appellate Division should be modified, without costs, and the matter remitted to that court for further proceedings in accordance with this opinion and, as so modified, affirmed.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read and Smith concur; Judge Pigott taking no part.

Order modified, etc.