It is, ORDERED, that the application of Petitioner is hereby denied in all respects.

Petitioner moves this Court for a judgment, pursuant to CPLR Article 78, § 3001, among others:

1.Annulling, reversing and setting aside, as arbitrary and capricious and lacking substantial evidence, a certain resolution of Respondent TOWN BOARD, adopted March 7, 2006, as amended by resolution adopted March 21, 2006, that:

a.granted the application of Respondent KING OF CLEAN to change the zone of the property that it owns located at 260 Middle Country Road, Coram, New York, and identified on the Suffolk County Tax Map as Parcel No. 0200-451.00-02.00-004.006 from J-2 Business and A-1 Residence to J-5 Business;

b.granted the application of Respondent KING OF CLEAN for a special permit to renovate and operate a motor vehicle wash on the subject property; and

c.granted Respondent KING OF CLEAN variances from at least eight provisions of the Town Code of Respondent TOWN to allow it to renovate and operate a motor vehicle wash on the subject property;

2.Annulling Respondent TOWN's Negative Declaration issued pursuant to SEQRA;

3.Declaring that Respondent TOWN BOARD was and is without any authority or jurisdiction to grant variances from zoning provisions of the Town Code in connection with the subject application, and declaring that any provisions in the Town Code purporting to grant Respondent TOWN BOARD powers that are vested pursuant to State law in the Zoning Board of Appeals, including Town Code § 85-31.3 [A] (2) (b), are illegal, null and void and of no effect and, accordingly, also declaring that the resolution adopted pursuant to those provisions is illegal, null and void and of no effect.

The underlying Petition herein sets forth nine Causes of Action, as follows:

1.(First Cause of Action): That Respondent TOWN BOARD's resolution, as amended, granting Respondent KING OF CLEAN a special permit to operate a motor vehicle wash, and granting at [*2]least eight variances and/or waivers or modifications from the special permit criteria to allow it to operate a motor vehicle wash on the subject property, was made in violation of lawful procedure; is affected by errors of law; is not warranted by the facts; is illegal, arbitrary and capricious; is not based on substantial evidence; is irrational; is unauthorized by and violative of the Town Code and New York State laws; is not in harmony with the general purpose and interest of public health, safety and welfare; is an abuse of the Town's police power and zoning power; is an abuse of any discretion properly vested in Respondents TOWN & TOWN BOARD; and is illegal, unjust, ultra vires, invalid, void and of no effect;

2.(Second Cause of Action): That the extensive, and in some cases complete, waivers granted by Respondent TOWN, without regard to the zoning code, the Town Comprehensive plan, the rights and interests of adjacent and neighboring property owners, without adequate review, consideration and analysis, and without stated justification and reasoned elaboration, are arbitrary and capricious, unsupported by substantial evidence, unjustified, beyond Respondent TOWN BOARD's authority, invalid and void;

3.(Third Cause of Action): That, in the absence of compliance with SEQRA, the Respondents TOWN & TOWN BOARD were without power or authority to enact a zoning change, to grant a special permit and to grant variances for the subject property, and they thus acted arbitrarily and capriciously when passing the resolution, and by means of the foregoing, the SEQRA Negative Declaration should be annulled and Respondent TOWN should be ordered to comply with SEQRA, and the Resolution, as amended, is illegal, null and void;

4.(Fourth Cause of Action): That, by singling out the subject property for establishment of a motor vehicle wash in the J Business 5 District (High Intensity Business) in a manner that is non-uniform and different from the criteria applicable to other property in the Town, the Resolution, as amended, is the product of arbitrary and capricious action, has no rational basis, was made without substantial evidence, and violated the uniformity command of Town Law § 262, and by reason of the foregoing, the Resolution, as amended, amending the zoning classification of the Subject property from J Business 2 (Neighborhood Business) and A-1 Residence (15,000 sq ft) to J Business 5 District (High Intensity Business) is illegal, null and void;

5.(Fifth Cause of Action): That, by said amendment of the zoning classification of the subject property without making a reasonable consideration as to the character of the district and its peculiar suitability for particular uses, nor making a review to conserve the value of buildings and encouraging the most appropriate use of land throughout the Town, the Resolution, as amended, is illegal, null and void;

6.(Sixth Cause of Action): That Respondent TOWN BOARD violated the requirements of General Municipal Law § 239-m, Town Law § 267-a (10) and Town Law § 274-b (7), in that it failed to refer the Application and proposed Resolution, as amended, to the county planning agency or regional planning council before it adopted said Resolution;

7.(Seventh Cause of Action): That the Resolution, as amended, was adopted without compliance with the notice and public hearing requirements for the adoption of a change of zone and for the granting of a special permit and variances, in particular failing to notify Petitioner of the adjourn date of the public hearing, as required, and by reason of the foregoing, the Resolution, as amended, is illegal, null and void;

8.(Eighth Cause of Action): That the passage of the Resolution, as amended, did not comply with the requirements for passage of a local law, and thus was arbitrary and capricious, and by reason of the foregoing, passage of the Resolution, as amended, is illegal, null and void; [*3]

9.(Ninth Cause of Action): That the provisions of New York State Law, including but not limited to Town Law § 267 and § 274-b (3), grant to the zoning board of appeals the exclusive power and authority to hear and to grant or deny an area variance from any requirement in a zoning regulation, because the State has delegated the subject matter of jurisdiction over the granting of variances to zoning boards of appeals, thus the attempt of Respondents TOWN & TOWN BOARD to transfer that authority to Respondent TOWN BOARD is contrary to New York law and ultra vires, and by reason of the foregoing, Town Code § 85-31.3 (A) (2) (b) and (c), § 85-31.3 (A) (4), § 85-31.3 (B) and § 85-31.5 are illegal, null and void, and therefore the Resolution, as amended, which purported to grant Respondent KING OF CLEAN variances from the provisions of the Town Code applicable to a motor vehicle wash pursuant to those sections of the Town Code, was enacted arbitrarily and capriciously, ultra vires, and thus is illegal, null and void.

Petitioner is the owner of seven parcels of land in the Town of Brookhaven, Hamlet of Coram, that taken together for Coram Plaza, improved with a retail shopping center and a Firestone Tire and Auto Repair Center, containing approximately 144,191 square feet of leasable space. The property which is the subject of the instant litigation, owned by Respondent KING OF CLEAN, is approximately 0.643 acres in size, located on the southerly side of New York State Route 25, adjacent or to or in the immediate vicinity of Coram Plaza. Petitioner admits that the subject property was operated as a motor vehicle wash, although it claims such use was discontinued since August, 2003.

Respondent KING OF CLEAN provides the following retort to Petitioner in its Statement of Facts / Procedural History:

1.That Respondent TOWN BOARD granted it a change of zone, special permit, and related variances for improvements to an existing cash wash which already has a certificate of occupancy issued by Respondent TOWN, which it requested in order to modernize the existing car wash;

2.That the area in which the subject property is located was the subject of a Moratorium enacted by Respondent TOWN BOARD, which ended on March 31, 2006, but that it had applied for relief from said Moratorium, and a public hearing regarding said application was held on May 18, 2004, said relief having been granted by Respondent TOWN BOARD on June 15, 2004;

3.That Respondent TOWN did in fact refer Respondent KING OF CLEAN's application to the Suffolk County Planning Commission, which determined on June 21, 2005, that it was a matter for local determination;

4.That subsequent thereto, Respondent KING OF CLEAN worked with Respondent TOWN's Planning Department and Historic District Advisory Committee, as well as local civic associations, to address concerns with, and improve, the request for relief before Respondent TOWN BOARD;

5.That on February 16, 2006, Respondent TOWN BOARD held a public hearing to consider the application, where Respondent KING OF CLEAN presented documentary evidence (which forms the majority of the Return submitted herein by Respondents TOWN & TOWN BOARD), and the testimony of traffic, environmental and zoning experts;

6.That only one individual spoke in opposition, who purportedly represented another neighbor, [*4]not Petitioner in this litigation, although the record was held open for ten additional days, during which said neighbor and Petitioner submitted comments;

7.That on March 7, 2006, Respondent TOWN BOARD adopted a negative declaration pursuant to SEQRA with regard to the instant application; and on the same date adopted a Resolution granting the change of zone and special use applications of Respondent KING OF CLEAN, which was later amended by Resolution dated March 21, 2006.

Respondents TOWN & TOWN BOARD submitted an Answer herein setting forth eight Objections In Points of Law, summed up as follows:

1.Changes of Zone are not subject to Article 78 review:

Zoning is a legislative function, therefore when a Town Board act to consider a change of zone, it does so in its legislative capacity (See: Town Law § 265; Norman v Town Board of Town of Orangetown, 118 AD2d 839, 500 NYS2d 324 [2 Dept 1986]). An Article 78 proceeding is not available as a means of challenging the legislative action of a Town Board, and such an action should be dismissed (See: Southern Dutchess Country Club v Town Board of Fishkill, 25 AD2d 866, 270 NYS2d 165, aff'd 18 NY2d 870, 276 NYS2d 121, 222 NE2d 739).

The Court concurs with the position of Respondents, finding same to be well settled law in the State of New York.

2.The Respondent TOWN BOARD complied with the Doctrine of Legislative Equivalency:

With respect to Petitioner's claim that the Town Board violated the Doctrine of Legislative Equivalency by using a resolution to amend the zoning ordinance, it should be noted that the Town Board observed the procedural formalities set forth in Town Law § 264 and 265 for enacting a zoning amendment, which should have the full force and effect of an ordinance despite its label as a resolution (See: Miller v Kozakiewicz, 289 AD2d 494, 735 NYS2d 176 [2 Dept 2001]).

Furthermore, Town Code § 85-32(A) provides that the Town Board may, from time to time, on its own motion or on petition or on recommendation of the Department of Planning and Development, amend, change, supplement or repeal the regulations, restrictions, district boundaries and provisions of Chapter 85 (Zoning), including the Building Zone Map, after public notice and hearing.

The Court also takes note of the fact that, although Respondent TOWN BOARD did change the entire Town Code of the Town of Brookhaven to a local law by adoption of Local Law 7-1987, by Local Law 15-1990 it repealed Chapter 85 (Zoning) as a local law, and re-adopted it as an ordinance by Resolution No. 292 of April 3, 1990, thereby extinguishing the need for the more formal adoption procedures required to amend a local law.

The Court concurs with the position of Respondents that the Doctrine of Legislative Equivalency was complied with, although the Court does take the opportunity to express its position that the public is better served when amendments to ordinances are adopted by ordinance, providing greater clarity of notice to the public, who may not be versed in the intricacies of the Doctrine of Legislative Equivalency.

3.Petitioner failed to overcome the presumptive validity of Respondent TOWN BOARD's determination:

When examining a variance that has been issued, it is well established that the board that granted said relief have broad discretion in considering the application before them, and that [*5]judicial review is limited to determining whether the action taken by said board was illegal, arbitrary or an abuse of discretion (See: Ifrah v Utschig, No. 84, 2002 WL 1401712 [CtApp 2002]; David Park Estate v Trotta, 283 AD2d 429, 723 NYS2d 885 [2 Dept 2001]; Toussie v Trotta, 283 AD2d 433, 723 NYS2d 890 [2 Dept 2001]; Fuhst v Foley, 45 NY2d 441, 410 NYS2d 56; Cowan v Kern, 41 NY2d 591, 394 NYS2d 579 [1977].

The Court concurs, noting that it is well settled law in the State of New York that a Court may not substitute its own judgment for that of the reviewing board (see: Janiak v. Planning Board of the Town of Greenville, 159 AD2d 574, 552 NYS2d 436 [2nd Dept], appeal denied, 76 NY2d 707, 560 NYS2d 989, 561 NE2d 889 [1990]; Mascony Transport and Ferry Service v. Richmond, 71 AD2d 896, 419 NYS2d 628 [2nd Dept 1979], aff'd, 49 NY2d 969, 428 NYS2d 948, 406 NE2d 803 [1980]). Therefore, if the decision rendered by the reviewing board is within the scope of the authority delegated to it, the Court may not interfere and annul it, unless said decision is arbitrary, capricious or unlawful (see, Castle Properties Co. v. Ackerson, 163 AD2d 785, 558 NYS2d 334 [3rd Dept 1990]).

The Court concurs with the position of Respondents that failed to overcome the presumptive validity of Respondent TOWN BOARD's determination.

4.Respondent TOWN BOARD correctly applied the balancing test of Sasso v Osgood:

In Sasso v Osgood, 86 NY2d 374, 633 NYS2d 259 [1995], the Court of Appeals interpreted Town Law § 267-b, finding that it requires the reviewing board to engage in a balancing test, weighing the benefit to the applicant as against the concerns of the neighborhood.

The Court also notes that, pursuant to Town Code § 85-256.1 (G), Respondent TOWN BOARD kept the issuance of Special Permits for motor vehicle washes, such as the instant matter, under its sole and exclusive jurisdiction. While Petitioner takes the position that this is improper, the Court notes that the McKinney's Practice Commentaries at Town Law § 274-b clearly states that, "...special use permit authority...a town board may reserve all or a portion of such review authority to itself...". Said Practice Commentaries also state that, "The inclusion of a use in a zoning law as a special permit use is tantamount to a legislative finding that the permitted use is in harmony with a community's general zoning plan and will not adversely affect the neighborhood." (Citations Omitted). "Consequently, designation as a special permit use results in a strong presumption in favor of the use." (Citations Omitted).

The Court further notes that the record supports the Respondent TOWN BOARD's determination in granting variances and/or waivers of some of the requirements set forth in the Town Code regarding issuance of Special Permits for motor vehicle washes, in light of the fact that applicant possesses a Certificate of Occupancy for a car wash at that location, and that many of the approvals sought were for what already existed on site, as depicted by the record, and that said relaxations were not substantial, considering the sites prior development as a car wash, even further supported by that fact that the hardships suffered by Respondent KING OF CLEAN were not self imposed, having purchased a legally existing motor vehicle wash.

Therefore, the Court concurs with the position of Respondents that the balancing test required by Sasso v Osgood was properly supplied.

5.The Special Permit criteria requisite to granting the application had been met:

Respondent TOWN BOARD takes the position that the record supports the conclusion that it weighed numerous factors in its deliberations on the underlying application, determining that the subject property is better suited for the requested modernization and redevelopment of the prior existing use, which is consistent with present and future development of this area, and that said [*6]conclusions were reached in a manner that was not arbitrary, capricious or illegal, while properly applying the requirements of the Town Code regarding issuance of special permits for motor vehicle washes.

The Court concurs with the position of Respondents that the special permit criteria requisite to granting the application had been met in their processing of the underlying application.

6.Petitioner lacks standing to challenge the SEQRA determination:

Respondents take the position that, when challenging a municipal action based upon an alleged failure to follow the procedures set forth in the State Environmental Quality Review Act (SEQRA), the party attacking the legislation must affirmatively demonstrate standing (See: Long Island Pine Barrens Society, Inc v Planning Board of Brookhaven, 213 AD2d 484, 623 NYS2d 613 [1995]; Brighton Residents Against Violence to Children, Inc v MW Properties, LLC, 304 AD2d 53, 757 NYS2d 399 [4 Dept 2003]; Save Our Main Street Buildings v Greene County Legislature, 293 AD2d 907, 740 NYS2d 715 [3 Dept 2002]; Olish v Heaney, 2003 WL 21276342 [NY Sct 2003]).

Petitioner must show that they will suffer not just a harm, but an injury in-fact which is different from that of the public at large, and that they are within the zone of interest sought to be protected by SEQRA (See: Long Island Pine Barrens Society, Inc v Town Board of the Town of East Hampton, 293 AD2d 616, 741 NYS2d 80 [2 Dept 2002]; Society of Plastics Industry, Inc v County of Suffolk, 77 NY2d 773 [2002]; Rediker v ZBA of the Town of Phillipstown, 280 AD2d 548 [2 Dept 2001]; Long Island Pine Barrens Society, Inc v Planning Board of Brookhaven, supra .

All of that having been noted, the Court has determined that rather than engage in a debate as to whether immediately adjacent and neighboring properties are within the zone of interest, or whether Petitioners will suffer an injury in-fact different from the public at large, the Court is far more compelled by the fact that, after a review of Respondents TOWN & TOWN BOARDs' Return, specifically at Exhibits F, R and II, it is clear said Respondents did, in fact, comply with the requirements of SEQRA in making a Negative Declaration herein and approving the underlying application for modernization of a prior existing motor vehicle wash.

7.Respondent TOWN referred this application for review to the local planning agency or local planning council:

The Court notes that this allegation is directly refuted by that facts, and that Exhibit M of Respondents TOWN & TOWN BOARDs' Return contains a letter issued by the Suffolk County Department of Planning stating that the Suffolk County Planning Commission had review the underlying application and determined that it was "...a matter of local determination as there is no apparent significant county-wide or inter-community impact(s)...".

8.Petitioner fails to state a cause of action:

Rspondents TOWN & TOWN BOARD use this point to address Petitioner's claim that they failed to notify them of adjourn dates of the public hearing "as required", and point out that Petitioners fail to point out any law or caselaw to support their proposition. The Court concurs with said Respondents' position herein.

As with the monumental task done by both Plaintiff and Respondents TOWN & TOWN BOARD herein, in presenting their positions, Respondent KING OF CLEAN also has presented well versed, carefully researched and cogent arguments herein, but it is unnecessary for the Court to go further in rendering its determination in this matter, intending no disrespect to the submissions [*7]of Respondent KING OF CLEAN, but as it is clear that all points have been adequately addressed herein above, and further review would simply reinforce the arguments of Respondent TOWN & TOWN BOARD, as already covered, the Court finds it unnecessary to restate and prolonge its review.

For all the reasons stated herein above and in the totality of the papers submitted herein, it is, therefore,

ORDERED, that the application of Petitioner for a judgment, pursuant to CPLR Article 78, § 3001, among others:

1.Annulling, reversing and setting aside, as arbitrary and capricious and lacking substantial evidence, a certain resolution of Respondent TOWN BOARD, adopted March 7, 2006, as amended by resolution adopted March 21, 2006, that:

a.granted the application of Respondent KING OF CLEAN to change the zone of the property that it owns located at 260 Middle Country Road, Coram, New York, and identified on the Suffolk County Tax Map as Parcel #

0200-451.00-02.00-004.006 from J-2 Business and A-1 Residence to J-5 Business;

b.granted the application of Respondent KING OF CLEAN for a special permit to renovate and operate a motor vehicle wash on the subject property; and

c.granted Respondent KING OF CLEAN variances from at least eight provisions of the Town Code of Respondent TOWN to allow it to renovate and operate a motor vehicle wash on the subject property;

2.Annulling Respondent TOWN's Negative Declaration issued pursuant to SEQRA;

3.Declaring that Respondent TOWN BOARD was and is without any authority or jurisdiction to grant variances from zoning provisions of the Town Code in connection with the subject application, and declaring that any provisions in the Town Code purporting to grant Respondent TOWN BOARD powers that are vested pursuant to State law in the Zoning Board of Appeals, including Town Code § 85-31.3 [A] (2) (b), are illegal, null and void and of no effect and, accordingly, also declaring that the resolution adopted pursuant to those provisions is illegal, null and void and of no effect;

is hereby denied in all respects, and the Petition herein is hereby dismissed.

Dated:Riverhead, New York

January 5, 2007

______________________________________

HON. JEFFREY ARLEN SPINNER, J.S.C.