Requestor: Annette M. Harding, Esq., Legal Counsel Town of Amity Cemetery Hill Road Belmont, New York 14813

Written by: James D. Cole, Assistant Attorney General in Charge of Opinions

You have indicated that it has been proposed that a portion of a town be annexed to a village. You have asked whether only the qualified voters residing in the territory proposed to be annexed may vote in an election on the proposal or whether all voters in the affected municipalities are required to vote.

The procedure for annexation of territory by a local government is defined by law. Under the State Constitution:

"No local government or any part of the territory thereof shall be annexed to another until the people, if any, of the territory proposed to be annexed shall have consented thereto by majority vote on a referendum and until the governing board of each local government, the area of which is affected, shall have consented thereto upon the basis of a determination that the annexation is in the over-all public interest. The consent of the governing board of a county shall be required only where a boundary of the county is affected. On or before July first, nineteen hundred sixty-four, the legislature shall provide, where such consent of a governing board is not granted, for adjudication and determination, on the law and the facts, in a proceeding initiated in the supreme court, of the issue of whether the annexation is in the over-all public interest." Art IX, § 1(d).

The procedure for municipal annexation is found in Article 17 of the General Municipal Law. The municipal annexation procedure is commenced by petition. General Municipal Law, § 703. The governing bodies of the local governments containing the territory to be annexed and the governing body of the annexing local government are empowered to approve the proposed annexation. Id. § 711. If one or more, but not all of these local governments involved disapprove the proposed annexation, an approving local government may commence an action in the appropriate appellate division for a determination whether the proposed annexation is in the over-all public interest. Id. § 712. In the event that the proposed annexation is approved in either of the two above ways, it is then required that each city, town and village in which the territory to be annexed is situated, call a special election to determine whether annexation shall be approved. Id. § 713. Qualified voters residing in the territory proposed to be annexed may vote in this election.

This provision carries out the requirement in the Constitution that "the people, if any, of the territory proposed to be annexed" must approve the annexation. Thus, in answer to your question, the qualified voters residing in the portion of the town proposed to be annexed must approve the annexation in a special election conducted by the town.

We conclude that the qualified voters residing in an area proposed to be annexed must approve the annexation in a special election conducted by the municipality in which they reside.

The Attorney General renders formal opinions only to officers and departments of the State government. This perforce is an informal and unofficial expression of views of this office.