The opinion of the court was delivered by: Joseph Farneti, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
ORDERED that this petition for a judgment, pursuant to Article 78 of the CPLR and Town Law § 267-c, reversing the decision of respondent TOWN BOARD OF THE TOWN OF BROOKHAVEN ("respondent" or "Town Board") on the grounds that the procedure followed by respondent violates Town Law § 271 (3) and petitioner's due process rights, is hereby GRANTED solely to the extent set forth hereinafter.
I. PROCEDURAL HISTORY AND FINDINGS OF FACT
Petitioner commenced this Article 78 proceeding to reverse a decision of respondent on the grounds that the procedure followed by respondent violates Town Law § 271 (3) and petitioner's due process rights. Petitioner seeks a reversal of respondent's denial of petitioner's Application for a Special Use Permit and For Variances, which denial was issued by Resolution No. 2 of the Town Board dated May 1, 2007 ("Resolution"), after a public hearing held on January 30, 2007. Within the Resolution, the Town Board set forth its factual findings and considered and weighed the factors set forth in the Brookhaven Town Code ("Town Code") concerning special use permits and area variances.*fn1
Specifically, petitioner seeks a judgment of this Court directing respondent to grant petitioner's application to relax certain requirements under the Town Code, to wit: (1) variances and/or relaxations of required buffers from 75' (pursuant to Town Code § 85-50 [B]  [c]) to 10', 15', and 30', respectively, with regard to neighboring residential use at tax lot 200-702-20; (2) relaxation of buffer requirements from 75' to 10' with regard to tax lot 200-702-2-1; (3) front yard setback and buffer variances of 75' along the Long Island Expressway South Service Road and 30' along Long Island Avenue, where a setback and buffer of 100' is required (pursuant to Town Code § 85-313 [C] ); (4) a variance allowing parking in aisle ways within the front yard setback along South Marginal Road; and (5) a floor area ratio variance permitting floor area occupancy of 32.1% instead of the required 30% within the designated hydrogeologic sensitive zone (pursuant to Town Code § 85-313 [F] ).
By Order dated September 28, 2007, this Court found that petitioner had described much of what transpired at the public hearing on January 30, 2007, but had not provided the Court with a certified transcript of those proceedings. In addition, the Court noted that respondent had not filed an answer to the petition. As such, the Court directed respondent to determine whether the minutes of the January 30, 2007 hearing existed. If so, respondent was directed to serve and file a verified answer to the instant petition, along with a certified copy of the transcript of the minutes of January 30, 2007, pursuant to CPLR 7804 (d) and (e), within sixty (60) days of service of that Order with notice of entry. Respondent has since filed a verified answer along with, among other things, a certified transcript of the January 30, 2007 public hearing.
Petitioner is a partnership and the owner of the subject premises located at 775 Long Island Avenue, Medford, New York ("premises"). The premises is approximately 12.5 acres, is made up of three tax lots, and is improved with seven existing light industrial structures being utilized for self-storage. Petitioner seeks to add two new structures on the interior of the premises to be used for self-storage and office space. Petitioner contends that the existing structures are in full conformance with the requirements of the L-1 zoning district, as certificates of occupancy had been issued for use as storage buildings. Petitioner alleges that except for the variance for floor area ratio, all area variances requested relate to the existing seven structures, which have been in existence for twenty (20) years or more. As such, petitioner argues that none of the proposed area variances should be considered substantial as a matter of law.
On or about July 31, 2003, petitioner first submitted a site plan to the Town's Planning Department for review, which proposed the addition of two new L-1 compliant light industrial buildings on the interior of the property.*fn2 Since the initial submission, petitioner alleges that six revisions were made to the site plan pursuant to comments from the Planning Department. Petitioner further alleges that it complied with all conditions imposed by the Town, including modifications to the plans and the requirement to meet with the local civic association and members of the community regarding the proposal.
At a public hearing held on January 30, 2007, petitioner contends that it agreed to each and every condition and restrictive covenant suggested in a memorandum from the Planning Department to the Town Board dated January 9, 2007. The Court notes that the memorandum from the Planning Department recommended petitioner's application be "approved with conditions." Petitioner informs the Court that at the hearing, individuals, including a member of the local civic association, testified against the project. However, petitioner contends that the individuals proffered "untruthful" complaints about the premises. Further, petitioner alleges that under the proposed site plan, the entrance to the premises located in the neighboring community would be closed, leaving only the entrance on the Long Island Expressway Service Road, which petitioner indicates was already approved by the New York State Department of Transportation. Therefore, petitioner argues that the impact to the neighboring community would be lessened. Also at the hearing, counsel for petitioner informed the Town Board that petitioner was willing to agree to the additional covenants and restrictions suggested by the Town Board during the hearing. Notwithstanding the foregoing, on or about May 1, 2007, respondent passed the aforementioned Resolution denying petitioner's application in its entirety.
Petitioner now argues that the exercise of jurisdiction and authority by respondent in considering both area variances and a special use permit in essence made respondent Town Board a de facto Planning Board by taking full control of all aspects of the commercial site plan review, in violation of Town Code § 85-43 ("Assignment and delegation of powers, functions and responsibilities" to the Planning Board), and Town Law §§ 267 ("Zoning Board of Appeals") and 271 ("Planning Board, creation, appointment"). As such, petitioner argues that it was denied the opportunity to appeal area use issues to the Town's Zoning Board of Appeals, resulting in a denial of petitioner's due process rights and an impermissible circumvention of New York's statutory framework.
Moreover, petitioner alleges that respondent's denial of the application for a special use permit and variances was arbitrary and capricious, and unsupported by any evidence or testimony. Petitioner alleges that respondent's decision describes the area use variances as "significant," notwithstanding the fact that "they were 99% already in existence for over 20 years, and as a matter of law would have zero impact on the community." Petitioner claims that much of the Resolution relates to pre-existing conditions being legalized by the application, and are therefore not substantial. In addition, petitioner argues that the denial of the application for a special use as a mini-storage warehouse despite its long use as such, was completely unsupported by the record. Further, petitioner contends that the proposed 2.1% increase in the floor area ratio would cause no detriment to the community, and that there was no testimony at the hearing to suggest otherwise.
In opposition, respondent argues that the conclusory allegations of the petition fail to overcome the presumption of validity attaching to the Board's determination. Further, respondent argues that the Board's decision is supported by substantial evidence and has a rational basis. Respondent alleges that the variances requested were substantial, and that the granting of the variances would cause an undesirable change in the nature and character of the neighborhood. Respondent indicates that any hardship of petitioner is self-created, as the premises is currently developed as a mini-storage facility, and a reasonable return can be made from the operation of such business. Moreover, respondent alleges that the Town Board acted within its authority granted by the Town Code in considering whether a special permit with related variances should be issued for the subject application. However, the Court notes that respondent fails to cite a section of the Town Code granting the Town Board such authority. Respondent indicates that if ...