Opinion
January 22, 1991
Ordered that the motion is denied and the cross motion is granted, without costs or disbursements, and it is further,
Adjudged that the report of the Referees is rejected, without costs or disbursements, it is declared that annexation is not in the over-all public interest, and the annexation proceeding is dismissed. "Although the Referees' report is entitled to great weight, it is advisory only, with this court retaining exclusive responsibility to judge the proposed annexation by the sole relevant criteria of `over-all public interest' (General Municipal Law § 712; Matter of City of Auburn v Town of Aurelius, 122 A.D.2d 585, lv denied 68 N.Y.2d 610; Matter of City of Auburn v Town of Fleming, 79 A.D.2d 1104, appeal dismissed 53 N.Y.2d 937; Matter of Common Council v Town Bd., 30 A.D.2d 577, appeal after remand 32 A.D.2d 855)" (City Council v Town Bd., 143 A.D.2d 215, 216). Accordingly, the report will and should be overridden when, in the view of the Appellate Division, the facts and circumstances do not justify the result recommended by the Referees (Town Bd. v City Council, 59 A.D.2d 1041). Here, the evidence at the hearing demonstrated that the parcel in question is vacant, wooded and undeveloped land. As no evidence was presented of any specific plans for development of the subject property, the land is clearly without any current need for the water or sewer services which the petitioner city could supply, and the petitioner has failed to carry its burden of proving that annexation is in the public interest (see, e.g., Matter of City Council v Town Bd., supra; cf., Matter of Board of Trustees v Town Bd., 56 A.D.2d 928). The petition is therefore dismissed. Mangano, P.J., Thompson, Eiber and Rosenblatt, JJ., concur.