East End Prop. Co. No. 1 LLC v Town Bd. of the Town of Brookhaven

[*1] East End Prop. Co. No. 1 LLC v Town Bd. of the Town of Brookhaven 2007 NY Slip Op 51032(U) [15 Misc 3d 1138(A)] Decided on May 22, 2007 Supreme Court, Suffolk County Spinner, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through June 4, 2007; it will not be published in the printed Official Reports.

Decided on May 22, 2007
Supreme Court, Suffolk County

East End Property Company No. 1 LLC, MARK KASPIEV, JOHN McCONNELL, JOHAN McCONNELL, DONALD SEUBERT, PATRICIA SEUBERT, FRANCESCA HURLEY, MICHAEL HURLEY, LAURENCE EINUS, EMILY KARLOVITS, STEPHEN HENRY, THE YAPHANK TAXPAYERS AND CIVIC ASSOCIATION, INC and SOUTH YAPHANK CIVIC ASSOCIATION, Petitioners-, Plaintiffs,

against

THE Town Board of the Town of Brookhaven, THE TOWN OF BROOKHAVEN and CAITHNESS LONG ISLAND, LLC, Respondents-, Defendants, - and - LONG ISLAND POWER AUTHORITY, Additional Respondent-Defendant.



2006-23201



Rosenberg Calica & Birney, LLP

Attorneys for Petitioners-Plaintiffs

100 Garden City Plaza, Suite 408

Garden City, New York 11530

Devitt Spellman Barrett, LLP

Attorney for Respondents-Defendants BROOKHAVEN

50 Route 111

Smithtown, New York 11787

Beveridge & Diamond, PC

Attorneys for Respondent-Defendant CAITHNESS

477 Madison Avenue, 15th Floor

New York, New York 10022

Carter Ledyard & Milburn LLP

Attorneys for Respondent-Defendant LIPA

2 Wall Street

New York, New York 10005-2072

Rivkin Radler, LLP

Attorneys for Respondent-Defendant LIPA

926 Reckson Plaza

Uniondale, New York 11556-0926

Westerman Ball Ederer Miller & Sharfstein, LLP

Attorneys for Respondent-Defendant CAITHNESS

170 Old Country Road, Suite 400

Mineola, New York 11501

Jeffrey Arlen Spinner, J.

ORDERED, that the Combined Petition-Complaint and Order to Show Cause of Petitioners-Plaintiffs (001) is hereby granted in part and denied in part, as set forth herein below; the Motion of Respondent-Defendant CAITHNESS (002) is hereby denied in all respects; the Motion of Respondent-Defendant LIPA (003) is hereby denied in all respects; and the second Order to Show Cause of Petitioners-Plaintiffs (006) is hereby dismissed, as same is rendered moot by the decisions rendered herein.

Petitioners-Plaintiffs move this Court (001) for an Order and Judgment:

a.Pursuant to CPLR Article 78, cancelling, annulling and invalidating a certain Resolution of Respondent-Defendant BROOKHAVEN TOWN BOARD, dated July 25, 2006, which, inter alia, approved a proposed 350 megawatt electrical generating plant, to be constructed by Respondent-Defendant CAITHNESS on an approximately 96 acre parcel located in the Hamlet of Yaphank, Town of Brookhaven, New York (Caithness Project) by granting a special permit pursuant to the Town Code of Respondent-Defendant BROOKHAVEN and substantial variances and waivers from established zoning requirements (Resolution I);

b.Pursuant to CPLR Article 78, annulling and invalidating a further Resolution of Respondent-Defendant BROOKHAVEN TOWN BOARD, dated July 25, 2006, inter alia, rendered under the State Environmental Quality Review Act (SEQRA), by adopting a Finding Statement under SEQRA, by approving and accepting a prior Final Environmental Impact Statement (FEIS) for the Caithness Project promulgated and adopted by Respondent-Defendant LIPA, acting as purported "lead agency" under SEQRA (Resolution II);

c.Cancelling, annulling and invalidating all other Resolutions, actions and authorizations granted by Respondent-Defendant BROOKHAVEN TOWN BOARD and/or Respondent-Defendant BROOK-HAVEN, for the purpose of authorizing and implementing the Caithness Project;

d.Pursuant to CPLR 3001, granting a Judgment in favor of Petitioners-Plaintiffs declaring such other matters with respect to the lawfulness of the procedures undertaken, the adoption of, the effectiveness and implementation of Resolution I, Resolution II and all other actions and authorizations granted by Respondent-Defendant BROOKHAVEN TOWN BOARD and/or Respondent-Defendant BROOK-HAVEN with reference to the Caithness Project as may be required to fully adjudicate the claims and controversies recited herein;

e.Granting a permanent injunction in favor of Petitioners-Plaintiffs enjoining Respondents-Defendants from implementing Resolution I, Resolution II or any other approvals authorizing the construction or implementation of the Caithness Project;

f.Granting Petitioners-Plaintiffs the costs and disbursements hereof.

Petitioners-Plaintiffs' above cited Order to Show Cause is filed upon their Petition-Complaint, which sets forth the above stated demands for relief under the following Claims for Relief:

1.As and for a First Claim for Relief, Respondent-Defendant BROOKHAVEN TOWN BOARD having violated Town Law and the Respondent-Defendant BROOKHAVEN Town Code (Town Code) in adopting Resolution I, said Resolution should therefore be adjudged to be null, void, arbitrary and capricious, and of no force and effect;

2.As and for a Second Claim for Relief, Respondent-Defendant BROOKHAVEN TOWN BOARD having violated SEQRA, in approving Resolutions I and II, said Resolutions should [*2]therefore be adjudged to be null, void, arbitrary and capricious, and of no force and effect;

3.As and for a Third Claim for Relief, Respondent-Defendant LIPA having violated SEQRA, Public Authorities Law § 1020-ff(aa) and State Finance Law § 123-b in its SEQRA determination and approval of the PPA, the adoption of Resolutions I and II by Respondent-Defendant BROOKHAVEN TOWN BOARD premised thereupon must be annulled, and declared null, void and of no force and effect;

4.As and for a Fourth Claim for Relief, Respondent-Defendant BROOKHAVEN TOWN BOARD having violated SEQRA, Open Meetings Law (Public Officers Law Article 7), Town Law, the Town Code, Respondent-Defendant BROOKHAVEN TOWN BOARD procedures (Town Board Procedures), and having engaged in "contract zoning", Resolutions I and II should therefore be adjudged to be null, void, arbitrary and capricious, and of no force and effect;

5.As and for a Fifth Claim for Relief, Respondent-Defendant BROOKHAVEN TOWN BOARD having violated SEQRA, the Town Code, Town Law, Open Meetings Law (Public Officers Law Article 7), Town Board Procedures, and various others laws, conducting themselves in an ultra vires manner, in adopting Resolution II by the holding of a "re-vote" (Resolution I having been also erroneously included herein in the filed pleadings) and having considered a Community Benefits Package without legal authority, Resolutions I and II should therefore be adjudged to be null, void, arbitrary and capricious, and of no force and effect;

6.As and for a Sixth Claim for Relief, pursuant to CPLR 3001, requesting that the Court declare such matters concerning the lawfulness of the procedures preceding consideration and adoption of, as well as concerning the adoption and the lawfulness of, Resolutions I and II, the FEIS, the Findings Statement, the "re-vote", and all other actions taken by or on behalf of Respondent-Defendant BROOKHAVEN TOWN BOARD to approve the Caithness Project which are necessary to result in full, complete and just resolution of all claims and controversies among the parties relating to such matters, granting permanent injunctive relief barring Respondents-Defendants from carrying out, implementing or otherwise acting to implement or carry out Resolutions I and II or otherwise construct the Caithness Project;

Respondent-Defendant LIPA moves this Court (003) for an Order, pursuant to CPLR 3211(a) (1), (3), (4), (5) and (7), dismissing Petitioners-Plaintiffs' Sixth Claim for Relief asserted in the Petition-Complaint, on the grounds that the defense is founded upon documentary evidence, that Petitioners-Plaintiffs lack legal capacity to assert the Sixth Claim for Relief, that there is another action pending between the same parties for the same cause of action as asserted in the Sixth Claim, and that the Sixth Claim for Relief is barred by the doctrine of collateral estoppel and res judicata.

Respondent-Defendant CAITHNESS moves (002) this Court for an Order:

(a)Pursuant to 22 NYCRR § 130-1.1, imposing sanctions (in the form of litigation costa and attorney's fees) on Petitioners-Plaintiffs and their Counsel:

(I)for having raised issues and claims in this case that are plainly barred by the doctrines of res judicata and collateral estoppel, as a result of Petitioners-Plaintiffs' having previously raised (and lost) these same issues and claims in an action before Justice Cozzens, entitled East End et al v Kessel et al, Supreme Court, Nassau County, Index No. 1410-2006 (Nassau Action);

(ii)for not advising this Court of the decision by Justice Cozzens in the Nassau Action, dated [*3]August 22, 2006, and entered on August 25, 2006 (Nassau Decision);

(iii)for not advising this Court that Petitioners-Plaintiffs appealed the Nassau Decision to the Appellate Division, Second Department;

(b)Pursuant to CPLR 3211(a) (1), (3), (4), (5) and (7), dismissing the Sixth Claim for Relief asserted in Petitioners-Plaintiffs' Petition-Complaint, which seeks declaratory relief under CPLR 3001 and related injunctive relief, on the grounds that:

(I)the alleged plenary Sixth Claim is duplicative of the First through Fifth Claims raised under CPLR Article 78;

(ii)it fails to state any claim for relief which is different that Petitioners-Plaintiffs' Article 78 claims;

(iii)there is another action pending between the parties for the same cause of action (Nassau Action);

(iv)many of the issues and claims in the Sixth Claim were decided in the Nassau Action and are barred by the doctrine of res judicata and collateral estoppel.

Petitioners-Plaintiffs move this Court (006) for an Order, pursuant to CPLR 7805, staying the Resolutions under review by enjoining and restraining Respondent-Defendant CAITHNESS, its agents, servants and employees (including without limitation, Ross D. Ain, Senior Vice President) from undertaking construction, development, demolition, excavation, grading, paving, removal of vegetation, or any further action in furtherance of the construction of a proposed 350 megawatt electric generating facility on a 96 acre parcel located in the Hamlet of Yaphank, Town of Brookhaven, County of Suffolk, State of New York, pursuant to a certain Special Permit and Variances heretofore granted by Respondent-Defendant BROOK-HAVEN TOWN BOARD on July 25, 2006, and pursuant to a certain Site Plan approved by Resolution of Respondent-Defendant BROOKHAVEN's Planning Board, dated September 25, 2006, pending determination of this matter and the related Article 78 against Respondent-Defendant BROOKHAVEN's Planning Board, as referenced herein above, by this Court.

INTRODUCTION:

This is a "hybrid" action, seeking relief by way of a special proceeding pursuant to CPLR Article 78, as well as a declaratory judgment pursuant to CPLR Article 30, § 3001, and injunctive relief pursuant to CPLR Article 63. Petitioners-Plaintiffs seek a review of the actions of Respondents-Defendants, most particularly Respondents-Defendants BROOKHAVEN and BROOKHAVEN TOWN BOARD (there also being a related action against Respondent-Defendant BROOKHAVEN's Planning Board, et al, as cited herein above). Petitioners-Plaintiffs seek to have said review invalidate, declare unlawful, arbitrary and capricious, annul, void and in all respects render of no force and effect, the actions of Respondents-Defendants, culminating in adoption of two resolutions by Respondent-Defendant BROOKHAVEN TOWN BOARD on July 25, 2006, regarding approvals of a SEQRA determination and a special use permit for a 350 megawatt electric generating plant in the Hamlet of Yaphank, Town of Brookhaven, County of Suffolk and State of New York, known herein as the Caithness Project. The Court recites a brief statement of relevant facts, in order to cull almost 600 pages of argumentation (and several times that number of pages of exhibits) into a manageable overview of the matter at hand.

STATEMENT OF FACTS:

Respondent-Defendant LIPA selected Respondent-Defendant CAITHNESS to provide a state-of-the-art electric generating facility, which Respondent-Defendant CAITHNESS proposes to construct on a 15 acre portion of a 96 acre parcel, located as identified herein above, said land being zoned "L-1", light industry by Respondent-Defendant BROOKHAVEN prior to any action herein; said 15 acre portion being located within an Empire Development Zone, also established prior to any action taken herein.

Respondent-Defendant LIPA took on the status of "lead agency", pursuant to SEQRA (6 NYCRR 617.2(u)), in order to perform a review of the potential environmental impacts of construction and operation of such a facility, prior to selection of the present site. After it was chosen, Respondent-Defendant BROOKHAVEN worked with Respondent-Defendant LIPA, as an "involved agency", to scope the Environmental Impact Statement, that process being concluded in December, 2005, after which several of the Petitioners-Plaintiffs herein instituted the Nassau Action against several of the Respondents-Defendants herein, regarding said SEQRA process. That litigation did not, and could not, include Respondent-Defendant BROOKHAVEN. During that time, Respondents-Defendants LIPA and BROOKHAVEN began negotiating a Community Benefits Package which consisted principally of Payment-In-Lieu-Of-Taxes (PILOTs).

The L-1 zoning district of Respondent-Defendant BROOKHAVEN only permits electric generating facilities by the granting of a special permit by Respondent-Defendant BROOKHAVEN TOWN BOARD, subject to criteria set forth in various sections of the Town Code. Pursuant to § 85-31 of said Town Code, Respondent-Defendant CAITHNESS applied for such special permit, with requests for variances from certain requirements within that zoning district, including an exhaust stack height of 170 feet (exceeding the Town Code imposed limitation of 125 feet) and a building height of 80 feet (exceeding the Town Code imposed limitation of 50 feet).

On March 9, 2006 and April 25, 2006, public hearings regarding said application were held by Respondent-Defendant BROOKHAVEN TOWN BOARD, each allegedly lasting about five hours. Presentations were made by representatives of Respondents-Defendants LIPA and CAITHNESS, and testimony was taken in opposition(including several Petitioners-Plaintiffs herein) and in support. Further presentations, discussions and comments continued through several other meetings and work sessions of Respondent-Defendant BROOKHAVEN TOWN BOARD, with resolutions approving the SEQRA determination and special permit being carried forward on said Respondent-Defendant's Agenda throughout this time period.

On June 6, 2006, with all the members of Respondent-Defendant BROOKHAVEN TOWN BOARD present, the resolution approving the SEQRA determination, as set forth in the FEIS adopted by Respondent-Defendant LIPA, was voted upon, with four members voting no, and three voting yes. As stated on page 32 of Petitioners-Plaintiffs' Reply Memorandum of Law, dated October 23, 2006, "Town's Return, exhibit WWW...statement of Supervisor Foley following the no-vote, indicating that the SEQRA certification had been "defeated"."; as stated on page 32 of Respondents-Defendants BROOKHAVEN and BROOKHAVEN TOWN BOARDs' Memorandum of Law, dated September 22, 2006, "...the Board voted on June 6, 2006 against accepting the SEQRA findings..."; and as states on page 21 of Respondent-Defendant CAITHNESS' Brief, dated September 25, 2006, "Indeed, as [*4]Town Supervisor Foley precisely explained, "By [the SEQRA Findings] being defeated we cannot therefore, we cannot then go to 6A [Resolution I] which is the actual application for the variance for the Caithness Power plant." See Return Exhibit WWW (emphasis added)."

On July 25, 2006, Respondent-Defendant BROOKHAVEN TOWN BOARD passed a number of resolutions regarding the Caithness Project, including:

1.Resolution by Councilwoman Walsh, seconded by Councilwoman Kepert, pursuant to Town Board Rules of Procedure, Article II, Section 3, Subsection A5, to waive the 90 day requirement before reintroduction of the SEQRA Resolution of June 6, 2006, for acceptance and adoption of the Findings Statements: adopted by a vote of 5-2;

2.Resolution by Councilwoman Walsh, seconded by Councilwoman Kepert, to accept the SEQRA Resolution of June 6, 2006, for acceptance and adoption of the Findings Statements, which was adopted by a vote of 5-2 after a Motion to Table, by Councilman McCarrick, seconded by Councilwoman Bissonette: defeated by a vote of 2-5;

3.Resolution by Councilwoman Kepert, seconded by Councilman Fiore-Rosenfeld, to take out of order from the Decision Pending Agenda, the resolution to approve the special permit application for the Caithness Project, with variances and waivers: adopted by a vote of 5-2;

4.Resolution by Councilwoman Kepert, seconded by Councilman Fiore-Rosenfeld, to approve the special permit application for the Caithness Project, with variances and waivers: adopted by a vote of 5-2;

Councilwoman Walsh, who moved the waiver of the 90 day rule and the reconsideration of the SEQRA resolution that had been previously defeated, had voted against approval of said resolution at the June 6, 2006 meeting of Respondent-Defendant BROOKHAVEN TOWN BOARD, and therefore having been on the prior prevailing side was a proper party to make said motions.

The Petition-Complaint herein was verified by the various Petitioners-Plaintiffs between August 17 and August 22, 2006, and filed with the Court on August 23, 2006. Attached to Petitioners-Plaintiffs Order to Show Cause herein, signed by this Court on August 22, 2006, is a copy of the Nassau Action, which is also referenced in Petitioners-Plaintiffs papers supporting same. The decision of the Hon. Justice R. Bruce Cozzens was also rendered on August 22, 2006, the fact of which Petitioners-Plaintiffs and their Counsel could not have been aware when they sought the signature of this Court on their Order to Show Cause.

On September 25, 2006, the Planning Board of Respondent-Defendant BROOKHAVEN (Respondent in the related Article 78 cited herein above), premised upon the Special Permit approval of the Respondent-Defendant BROOKHAVEN TOWN BOARD, adopted a Resolution approving the Site Plan for the Caithness project, with numerous covenants and conditions to be met. On October 24, 2006, a Verified Petition was executed against Respondent-Defendant BROOKHAVEN's Planning Board and Respondent-Defendant herein CAITHNESS, served upon them on October 26, 2006, and October 30, 2006, respectively.

As this Court has stated in prior decisions, from the start it should be noted 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 [*5][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]).

RESPONDENTS-DEFENDANTS' MOTIONS:

Beginning with that portion of the Motion (002) by Respondent-Defendant CAITHNESS for sanctions against Petitioners-Plaintiffs and their Counsel, the Court notes that Petitioners-Plaintiffs informed this Court of the pendency of the Nassau Action, including attaching a copy of the Petition-Complaint therein to their support papers filed in the instant action before this Court, and that there was absolutely nothing contumacious nor wilful in their conduct, there being, therefore, nothing to justifying sanctions.

As to remainder of the Motion (002) by Respondent-Defendant CAITHNESS, and the Motion (003) by Respondent-Defendant LIPA, both basically seek to dismiss the Sixth Claim for Relief asserted in the Petition-Complaint herein, upon the grounds that:

a.It fails to state a claim for relief different from those asserted in the instant Article 78;

b.There is another action pending between the same parties for the same cause of action asserted therein;

c.It is barred by the doctrine of collateral estoppel and res judicata.

This Court finds that, in fact, the Sixth Claim for Relief, asserted pursuant to CPLR Article 30, does seek relief different from the other five Claims for Relief asserted pursuant to CPLR Article 78. The difference between relief requested pursuant to Articles 30 and 78 are well settled. One need look no further than Professor David D. Siegel's Practice Commentary at CPLR 3001, answering the question "What is a Declaratory Judgment?". Prof. Siegel notes that, "The declaratory judgment action differs from all others in one major respect: the others end in a judgment enforcible [sic] through some kind of coercive relief... The declaratory judgment, on the other hand, just declares the rights of the parties: this marriage is valid; this divorce is not... The declaratory judgment recognizes that many disputes are resolved by a mere judicial statement... rather than remitting them to seek coercive steps against one another.".

On the other hand, one might view the other facet of this hybrid action, the Article 78 portion (Claims First through Fifth), as the coercive relief' sought by Petitioners-Plaintiffs, pursuant to the rights of the parties established and promulgated by the Court in the Declaratory Judgment facet of this hybrid action. CPLR 7801 sets forth that, "Relief previously obtained by writs of certiorari to review, mandamus or prohibition shall be obtained in a proceeding under this article.". So, obviously, Petitioners-Plaintiffs are requesting that the Court establish and promulgate the rights of the parties, and by writs of certiorari and mandamus, review the actions of Respondents-Defendants and remand them for proper action, if so dictated by the Court's review. Therefore, these are quite clearly different requests for relief, and do not support dismissal of the Sixth Claim for Relief. [*6]

The Court finds that the other action pending is not exactly between the same parties, for not exactly the same cause of action, and that the differences are significant. Neither Respondents-Defendants BROOK-HAVEN and BROOKHAVEN TOWN BOARD, nor their actions, are part of that other action, the Nassau Action, decided by Justice Cozzens, nor could the Sixth Claim for Relief be disposed of in the Nassau Action, as Petitioners-Plaintiffs are seeking the Court establish and promulgate the rights of parties not part of said Nassau Action for actions by those non-parties that were not asserted before Justice Cozzens, since they had not yet occurred. Therefore, these are also quite clearly different requests for relief, and do not support dismissal of the Sixth Claim for Relief.

That brings the Court's review of these Motions to the arguments proffered by movants regarding res judicata and collateral estoppel, emanating from Justice Cozzens' decision in the Nassau Action. While res judicata disposes of some of the issues pursuant to the Sixth Claim for Relief, and collateral estoppel disposes of more, they are not completely dispositive of all the issues to be considered under said Claim for Relief, for the same reasons set forth in the preceding paragraph, and therefore the Motions to dismiss the Sixth Claim for Relief must be denied.

PETITIONERS-PLAINTIFFS' COMBINED PETITION-COMPLAINT:

Res judicata and collateral estoppel having been raised, the Court notes that there are a multitude of issues that are clearly disposed of by the decision in the Nassau Action, as the following review of the each of the Claims for Relief in the underlying Petition-Complaint, and the specific requests fo relief in the instant Order to Show Cause reveals, vastly limiting the matters upon which this Court needs to render its decision. Still further, there remains the issue of standing, which to some extent is also decided on the basis of res judicata and collateral estoppel, which will be addressed as well in the following review.

The Court notes the well proffered discussion of Counsel for Respondent-Defendant LIPA regarding the doctrines of res judicata and collateral estoppel. New York has adopted the "transactional analysis" approach regarding application of the doctrine of res judicata, setting forth that once a claim has been rendered to a final conclusion, all other claims arising therefrom on the same transaction or series of transactions are barred, including where based on differing theories or seeking differing remedies (See, O'Brien v City of Syracuse, 54 NY2d 353, 445 NYS2d 687 [1981]). The foundation upon which the doctrine of res judicata is built is the avoidance of conflicting judicial decisions (See, Schuylkill Fuel Corp v Nieberg Realty Corp, 250 NY 308, 165 NE 456 [1929]). The related doctrine of collateral estoppel instead focuses on issues which have already been litigated, setting forth two basic requirements for application: (1) Identicality of the issue decided in the prior action with the issue which is decisive of the present matter; (2) Full and fair opportunity to have contested the issue in the prior action (See, Halyalker v Board of Regents of State of New York, 72 NY2d 261, 532 NYS2d 85 [1988]; All Terrain Properties, Inc v Hoy, 265 AD2d 87, 705 NYS2d 350 [1 Dept 2000]]).

First Claim for Relief:

The First Claim for Relief asserts that Respondent-Defendant BROOKHAVEN TOWN BOARD violated both Town Law and the Town Code in adopting the Special Permit Resolution, and [*7]therefore said Resolution should be declared null, void, arbitrary, capricious and of no force and effect. Here, the first issue that must be decided is whether Petitioners-Plaintiffs have standing to assert this Claim for Relief. As pointed out by Counsel for Respondents-Defendants BROOKHAVEN and BROOKHAVEN TOWN BOARD, whether parties have standing to institute an action or proceeding is a threshold issue, which must be determined by the Court at the outset of any litigation (See, Dairylea Cooperative v Walkley, 38 NY2d 6, 377 NYS2d 451, 339 NE2d 865 [1975]; Society of Plastics Industry v County of Suffolk, 77 NY2d 761, 570 NYS2d 778, 573 NE2d 1034 [1991].

In order to demonstrate standing, Petitioners-Plaintiffs must show that they will suffer a harm that is in some manner different than the harm the public may generally suffer, and that their alleged injuries fall within the zone of interest sought to be promoted or protected by the statute under which the municipality acted (See, Society of Plastics Industry v County of Suffolk, supra; Redilker v Zoning Board of Appeals of the Town of Philipstown, 280 AD2d 548, 721 NYS2d 77 [2 Dept 2001]; Long Island Business Aviation Association, Inc v Town of Babylon, 29 AD2d 794, 815 NYS2d 217 [2 Dept 2006]). The Courts have ruled that petitioners were not entitled to an inference of injury because they lived within about one-third of a mile, one-half mile, or between 832 to 2,519 feet from the subject property (See, Olish v Heaney, 2003 WL 21276342 [NY SupCt]; Concerned Citizens for Open Space v City of White Plains, 2003 WL 22283389 [NY SupCt]; Oates v Village of Watkins Glen, 290 AD2d 758, 736 NYS2d 478 [3 Dept 2002]), the last matter involving a petitioner who resided within 530 feet from a proposed WalMart super center. The status of neighbor does not automatically entitle one to standing for judicial review in every instance (See, Sun-Brite Car Wash v Board of Zoning & Appeals of the Town of North Hempstead, 69 NY2d 414, 515 NYS2d 418, 508 NE2d 130 [1987]). Petitioners-Plaintiffs herein, none of whom live closer than one-half mile, and are not within the required notification area for Special Permit application, pursuant to the Town Code, do not demonstrate they are within the zone of interest, nor that they will suffer an injury different than the public at large, and therefore lack standing to challenge Resolution I adopted by Respondent-Defendant BROOKHAVEN TOWN BOARD regarding approval of the Special Permit, specifically.

Therefore, the First Claim for Relief must be dismissed in all respects.

Second Claim for Relief:

The Second Claim for Relief asserts that Respondent-Defendant BROOKHAVEN TOWN BOARD violated SEQRA, in approving the Special Permit Resolution and the SEQRA Resolution, and therefore said Resolutions should be declared null, void, arbitrary, capricious and of no force and effect. For the reasons set forth herein above disposing of the First Claim for Relief, Petitioners-Plaintiffs lack standing to challenge the adoption of the Special Permit Resolution, including Petitioners-Plaintiffs assertion in this Claim for Relief that the existence of Atlantic Point and its inhabitants was not considered.

First, this Court notes that, pursuant to res judicata and collateral estoppel, the decision in the Nassau Action clearly establishes that the Petitioners-Plaintiffs do, in fact, have standing pursuant to SEQRA, and this Court agrees. Specifically, Justice Cozzens wrote, "...these petitioners have [*8]standing to bring this action for SEQRA causes of action", after having named various Petitioners-Plaintiffs in the instant action. Therefore, the issue of Respondent-Defendant BROOKHAVEN TOWN BOARD's adoption of the SEQRA Resolution on July 25, 2006, is properly brought before this Court.

As to the assertions that Respondents-Defendants violated SEQRA by way of Impermissible Segmentation regarding the natural gas pipeline, and a failure to prepare and adopt a supplemental environmental impact statement (SEIS) following discovery of a pine barrens ecosystem, Petitioners-Plaintiffs cannot re-litigate these SEQRA questions, as they were specifically disposed of, pursuant to collateral estoppel, since both were directly addressed in the decision in the Nassau Action, regarding the lead agency's adoption of the FEIS. Justice Cozzens wrote:

a.in ruling on the issue of Impermissible Segmentation, "...SEQRA is preempted by FERC... respondents motion to dismiss is granted..."; and

b.in ruling on the issue of the SEIS (specifically including, but not limited to. the assertion that "...a rare plant community would be affected..."), "...petitioner's allegations do not amount to specific significant adverse environmental impacts not addressed or inadequately addressed in the FEIS. (6 NYCRR 617.9 [a] [7] [I])... defendant's motion is granted...".

Therefore, other than on the issue of standing to challenge pursuant to SEQRA, the Second Claim for Relief must be dismissed in all respects.

Third Claim for Relief:

The Third Claim for Relief asserts that, Respondent-Defendant LIPA having violated SEQRA, Public Authorities Law § 1020-ff(aa) and State Finance Law § 123-b in its SEQRA determination and approval of the PPA, the subsequent adoption of the Special Permit Resolution and the SEQRA Resolution by Respondent-Defendant BROOKHAVEN TOWN BOARD, premised upon said unlawful actions, cannot be sustained, and therefore said adoptions must be declared null, void and of no force and effect. Again, for the reasons set forth herein above disposing of the First Claim for Relief, Petitioners-Plaintiffs lack standing to challenge the adoption of the Special Permit Resolution.

As to the assertion that Respondent-Defendants LIPA's violation of the three alleged areas of law in their preparation and adoption of the FEIS renders a nullity Respondent-Defendant BROOKHAVEN TOWN BOARD's adoption of their SEQRA Resolution, the Court again notes that Petitioners-Plaintiffs cannot re-litigate these questions as they were disposed of, pursuant to res judicata, since all three were directly addressed in the decision in the Nassau Action, regarding the lead agency's adoption of the FEIS. Justice Cozzens wrote:

a.in ruling on the issue of the environmental review process being procedurally improper, "...the Court finds that the respondents complied with the procedural requirements of SEQRA... that any perceived procedural defects cannot be deemed to be fatal or require nullification of the entire environmental review procedure, which was otherwise undertaken in accordance with SEQRA. (See, Business and Community Coalition Save Brownsville v NYCDEP [2nd Dept., 1991] 173 AD2d 586, 570 NYS 2nd 169.)... respondents motion to dismiss is granted...", regarding the First Cause of Action, and the Court further dismissed other challenges to the [*9]SEQRA process in said proceeding under the Third and Fourth Causes of Action therein;

b.in ruling on the issue of violating Public Authorities Law § 1020-f, in order to demonstrate standing "...It is incumbent upon petitioners to show an injury in fact that is different from that of the general public. Society of Plastics Industry v County of Suffolk (1991) 77 NY2d 761, 570 NYS2d 778... When a petitioner fails to show an injury in fact, being a ratepayer of a utility does not confer standing. Lederle Laboratories v Public Service Commission (3rd Dept., 1981) 84 AD2d 900, 444 NYS2d 779.", dismissing that cause of action; and

c.in ruling on the issue of violating State Finance Law § 123-b, regarding the PPA and the Community Benefits Package, "...petitioner fail to allege the use of any state funds... A State Finance Law action can be brought only when there is a wrongful expenditure of state funds. Weimer v Board of Education (1981) 52 NY2d 148, 436 NYS2d 853. The petitioner must show that the challenged expenditures are traced to identifiable State funds and are an illegal use of funds. Public Utility Law Project of New York, Inc v New York State Public Service Commission (3rd Dept., 1998) 252 AD2d 55, 681 NYS2d 396.", dismissing that cause of action.

Therefore, since the assertion that the actions of Respondent-Defendant LIPA were in violation of law regarding these matters cannot be sustained, then the allegation that the actions of Respondent-Defendant BROOKHAVEN TOWN BOARD, reliant thereupon, can neither be sustained, and the Third Claim for Relief must be dismissed in all respects.

Fourth Claim for Relief:

The Fourth Claim for Relief asserts that Respondent-Defendant BROOKHAVEN TOWN BOARD violated SEQRA, Open Meetings Law (Public Officers Law Article 7), Town Law, the Town Code and Town Board Procedures, and engaged in "contract zoning", in approving the Special Permit Resolution and the SEQRA Resolution, and therefore said Resolutions should be declared null, void, arbitrary, capricious and of no force and effect. Once again, for the reasons set forth herein above disposing of the First Claim for Relief, Petitioners-Plaintiffs lack standing to challenge the adoption of the Special Permit Resolution, including Petitioners-Plaintiffs assertions in this Claim for Relief claiming "contract zoning" and violations of Town Law and the Town Code. Furthermore, for the reasons set forth herein above regarding the decision in the Nassau Action disposing of the issue of the environmental review process being procedurally improper, Petitioners-Plaintiffs cannot re-litigate general assertions of violation of SEQRA herein.

As to Petitioners-Plaintiffs assertion that Respondent-Defendant BROOKHAVEN TOWN BOARD violated the Open Meetings Law (Public Officers Law Article 7), upon a thorough review of said Article and all the submissions by all parties herein, the Court finds no substantive allegations or proof that such a violation occurred. As pointed out by Counsel for Respondents-Defendants BROOKHAVEN and BROOKHAVEN TOWN BOARD, in order for a gathering of members of a public body to constitute a "meeting" pursuant to Public Officers Law, there must have been a quorum present (See, Britt v County of Niagara, 82 AD2d 65, 440 NYS2d 790 [4 Dept 1981]; Buffalo Evening News, Inc v Buffalo Municipal Housing Authority, 134 Misc2d 155, 510 NYS2d 422 [SuptCt. New York Co, 1986]). Similarly to the instant matter, in Olish v Heaney, supra, petitioners bolstered their claims of an Open Meetings violation through newspaper articles, and as with this matter, the Court therein determined that the record did not support such a claim. In order [*10]to sustain such an assertion, more than mere conclusory allegations are requisite. The statement of Councilman Mazzei proffered by Petitioners-Plaintiffs that "I have been to many, many meetings on both the Town Board meetings and outside of the Town Board..." does not demonstrate that those meetings "outside of the Town Board" qualify as meetings' within the legal definition of Public Officers Law, Article 7, the term meeting' having diverse and varied definitions as used within conversational context that do not rise to a violation of the Open Meetings Law.

As to Petitioners-Plaintiffs assertion that Respondent-Defendant BROOKHAVEN TOWN BOARD violated their own Town Board Procedures, once again the record does not support such allegations. Article II (Meetings & Hearings) of said Respondent-Defendant's Rules of Procedure, at Section 3 (Rules of Procedure), Subsection A.5, states that, "A Resolution, Local Law or Ordinance that receives less than a majority of votes shall not be reintroduced for ninety days (90) or unless this rule is waived by a super majority vote of the Town Board.". The Statement of Facts set forth herein above demonstrates beyond dispute that said Respondent-Defendant did in fact move by super majority to reintroduce the SEQRA Resolution challenged by Petitioners-Plaintiffs herein, and that they voted by super majority to consider it out of turn as well, prior to conducting another vote regarding said Resolution, and therefore their actions did comply with their own Rules of Procedure, and this challenge cannot be sustained.

Therefore, the Fourth Claim for Relief must be dismissed in all respects.

Fifth Claim for Relief:

The Fifth Claim for Relief asserts that Respondent-Defendant BROOKHAVEN TOWN BOARD, having violated SEQRA, the Town Code, Town Law, Open Meetings Law, and Town Board Procedures, conducted themselves in an ultra vires manner in adopting the SEQRA Resolution:

1.by the holding of a "re-vote"; and

2.by considering a Community Benefits Package without legal authority;

and therefore said Resolution should be declared null, void, arbitrary, capricious and of no force and effect. For all the reasons set forth herein above in this decision, the assertions as to SEQRA (generally), the Town Code, Town Law, Open Meetings Law, Town Board Procedures and the Community Benefits Package have been disposed of, either by the decision of this Court or the decision of the Court in the Nassau Action, and will not be revisited here.

That leaves the Court with the important question of whether Respondent-Defendant BROOKHAVEN TOWN BOARD's adoption of the SEQRA Resolution was arbitrary and capricious, and therefore null, void and of no force and effect. The instant issue, considering the disposal of all other SEQRA matters settled herein above and in the Nassau Action, narrows the inquiry to the manner in which Respondent-Defendant BROOKHAVEN TOWN BOARD adopted the SEQRA Resolution, and whether that "re-vote" violated well settled law.

Some have argued that Respondent-Defendant BROOKHAVEN TOWN BOARD, in discharging its duties herein, was acting in a legislative capacity, while Petitioners-Plaintiffs maintain that it was conducting itself in an administrative capacity in adopting the SEQRA Resolution disputed in this matter. In Respondent-Defendant BROOKHAVEN TOWN BOARD's Memorandum of Law dated [*11]September 22, 2006, at page 10, the case of Kelsky v Lewisboro is cited in support of the argument that Petitioners-Plaintiffs herein lack standing to challenge the granting of the special permit relevant to the Caithness Project, and said citation begins with the words, "Generally to establish standing to review an administrative determination...". Furthermore, Justice Cozzens, in rendering his decision in the Nassau Action, writes, in the portion granting Petitioners-Plaintiffs standing pursuant to SEQRA, "The opponent of the administrative action in a SEQRA proceeding...". Still further, the Appellate Division, Second Department, in Green v LoGrande, 96 AD2d 524, 464 NYS2d 831 [1983], states, in relevant part, "The administrative authority, be it a town board or a zoning board of appeals, is required to grant a special use permit..."; and in Holbrook Associates Development Co v McGowan, 261 AD2d 620, 690 NYS2d 686 [1999], again discusses the requirement of administrative authority to grant a special use permit, regarding the Town Board. It is well settled law in New York that Town Boards have both legislative and administrative authority, and that in rendering decisions regarding special permit applications and the SEQRA review requisite thereto, Town Boards are acting exclusively in their distinct administrative capacity.

That brings this review to the question of whether the June 6, 2006, vote of the Town Board, regarding the SEQRA Resolution, was a denial or not, some having argued that it was not. First, the Court notes, as set forth in the Statement of Facts herein above, that Supervisor Foley, following said vote, properly acknowledged that said Resolution had been defeated, and further correctly determined that this disallowed action on the Special Permit Resolution. The Court of Appeals, in Tall Trees Const Corp v Zoning Board of Appeals of the Town of Huntington, 97 NY2d 86, 761 NE2d 565, 735 NYS2d 873 [2001], ruled, "We conclude that when a quorum of the Board is present and participates in a vote on an application, a vote of less than a majority of the Board is deemed a denial", when there was a tie vote. In rendering that decision, the Court of Appeals cited the Appellate Division, Fourth Department's decision in Monro Muffler/Brake, Inc v Town Board of the Town of Perinton, 222 AD2d 1069 (4 Dept 1995), wherein the Appellate Division ruled that, "Supreme Court properly determined that the failure of respondent to approve by a majority vote the application of petitioner... for a special use permit... constituted a valid determination to deny the application.". It is clear to this Court that the SEQRA Resolution regarding the Caithness Project was denied by the majority vote against its approval on June 6, 2006. Therefore, its reconsideration on July 25, 2006, was indisputably a re-vote, and not, as set forth in Respondent-Defendant BROOKHAVEN TOWN BOARD's Memorandum of Law dated September 22, 2006, at page 29, that "the board simply did not have enough votes to approve the SEQRA findings.".

It is well settled that, as SEQRA does not contain provisions addressing judicial review, Courts must adhere to the standards generally applicable to administrative proceedings, in that an agency's determination must be sustained unless the Court concludes it was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion (See, Responsible Southtown Develop-ment v Roosevelt Island Operating Corp, 735 NYS2d 83 [1 Dept 2001]). In arriving at that conclusion, this Court is also aware that literal compliance with both the letter and spirit of SEQRA is required, and mere substantial compliance will not suffice (See, Golten Marine Co, Inc v NYS Department of Environmental Conservation, 193 AD2d 742, 598 NYS2d 59 [2 Dept 1993]; Group for S. Fork v Wines, 190 AD2d 794; Holmes v Brookhaven Town Planning Board, 137 AD2d 601, quoting Inland Vale Farm Co v Stergianopoulos, 104 AD2d 395, aff'd 65 NY2d 718; EFS Venture Corp v Foster, 71 NY2d 359). [*12]

As pointed out by Petitioners-Plaintiffs, the Appellate Division, Second Department recently confirmed, in Corona Realty Holdings, LLC v Town of North Hempstead, 32 AD3d 393, 820 NYS2d 102 [2006], that the determination of an administrative agency that neither adheres to its own prior precedent, nor indicates its reason for reaching a different result on essentially the same facts, is on its face arbitrary and capricious (See, Field Delivery Service, 66 NY2d 516, 488 NE2d 1223, 498 NYS2d 111; Al Turi Landfill v NYS Department of Environmental Conservation, 289 AD2d 231, 735 NYS2d 61, aff'd 98 NY2d 758, 781 NE2d 892, 751 NYS2d 827); and an agency's failure to provide a valid and rational explanation for the departure from its prior precedent mandates reversal, even though substantial evidence may exist in the record to otherwise support the determination (See, Al Turi Landfill v NYS Department of Environmental Conservation, supra; Field Delivery Service, supra).

As also pointed out by Petitioners-Plaintiffs, the Appellate Division, Second Department has remained on this track, ruling in Campo Grandchildren Trust v Colson, 2007 NY Slip Op 03302, decided on April 17, 2007, that the determination of a zoning board of appeals cannot be sustained if it lacks a rational basis and is arbitrary and capricious (See, Fuhst v Foley, 45 NY2d 441, 410 NYS2d 56, 382 NE2d 756; Greenfield v Board of Appeals of Village of Massapequa Park, 21 AD3d 556, 800 NYS2d 728; Crystal Pond Homes v Prior, 305 AD2d 595, 759 NYS2d 366); a determination of a zoning board of appeals that neither adheres to its own precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious (See, Knight v Amelkin, 68 NY2d 975, 510 NYS2d 550, 503 NE2d 106, quoting Field Delivery Service, supra; Corona Realty Holdings, LLC v Town of North Hempstead, supra), mandating reversal, even if there may otherwise be evidence in the record sufficient to support the determination (See, Corona Realty Holdings, LLC v Town of North Hempstead, supra).

This Court further notes that compliance with these requirements is not onerous. It is further well settled that the Courts in New York have accorded great deference to the explanations offered by boards for their contrary determinations under similar circumstances, as well as to changes in policy (See, Hawryluk v Zoning Board of Appeals of the Town of Huntington, 173 AD2d 826, 571 NYS2d 53 [2 Dept 1991]; Ciampa v Hudson, 158 AD2d 925, 551 NYS2d 89 [4 Dept 1990]; Pesek v Hitchock, 156 AD2d 690, 549 NYS2d 164 [2 Dept 1989]; Knight v Amelkin, supra). The Appellate Division, Second Department, recently confirmed that the Courts will generally defer to the explanation for reaching a different result on similar facts, sustaining the determination because a rational explanation for reaching the different result on similar facts was provided (See, Berk v McMahon, 29 AD3d 902, 814 NYS2d 753 [2 Dept 2006], citing Knight v Amelkin, supra).

That leaves this Court confronted with the inescapable fact that the transcript submitted by Respondents-Defendants BROOKHAVEN and BROOKHAVEN TOWN BOARD demonstrates that the SEQRA Resolution was brought up in the public session of the July 25, 2006 meeting, was properly reintroduced by a waiver of the Rules of Procedure, but then adopted with the same language, absent an explanation in the SEQRA Resolution for the adoption (as opposed to the prior denial), and without any discussion on the record prior to said adoption. This does not meet the standards set forth clearly herein above, as promulgated by both the Appellate Division and Court of Appeals, and thus fails to meet the standard of literal compliance with both the letter and spirit of SEQRA. [*13]

Therefore, the Fifth Claim for Relief must be granted, solely to the extent that the adoption of the SEQRA Resolution by re-vote of Respondent-Defendant BROOKHAVEN TOWN BOARD, devoid of the requisite explanation for reaching the different result (passage as opposed to rejection), renders said action arbitrary and capricious, resulting in the declaration of said SEQRA Resolution null, void and of no force and effect, and requiring, pursuant to Article 78, that it be remanded to Respondent-Defendant BROOKHAVEN TOWN BOARD for proper action.

The Court notes here, as will be set forth further herein below (and in the companion decision regarding the Article 78 proceeding by these Petitioners-Plaintiffs against Respondent-Defendant BROOKHAVEN's Planning Board), that the annulment of the SEQRA Resolution brings with it the nullification of the Special Permit Resolution adopted by Respondent-Defendant BROOKHAVEN TOWN BOARD, because it was premised upon said SEQRA Resolution, as well as the nullification of the Site Plan approval (but not the SEQRA Resolution) of Respondent-Defendant BROOKHAVEN's Planning Board, because it was also premised upon both the SEQRA Resolution (and the Special Permit Resolution) of Respondent-Defendant BROOKHAVEN TOWN BOARD (in short, a domino effect).

Sixth Claim for Relief:

The Sixth Claim for Relief, pursuant to CPLR 3001, requests that the Court declare such matters concerning the lawfulness of the procedures preceding consideration and adoption of, as well as concerning the adoption and the lawfulness of, Resolutions I and II, the FEIS, the Findings Statement, the "re-vote", and all other actions taken by or on behalf of Respondent-Defendant BROOKHAVEN TOWN BOARD to approve the Caithness Project which are necessary to result in full, complete and just resolution of all claims and controversies among the parties relating to such matters, granting permanent injunctive relief barring Respondents-Defendants from carrying out, implementing or otherwise acting to implement or carry out Resolutions I and II or otherwise construct the Caithness Project;

The issues of SEQRA, generally, including the FEIS, were all disposed of by the decision rendered in the Nassau Action, as stated herein above. The issue of the Special Permit Resolution was disposed of by the decision herein above, to the extent of Petitioners-Plaintiffs standing to challenge same. The Nassau Action granted them standing to challenge the SEQRA procedures, while ruling against them on the specifics, but that same grant of standing allowed them to challenge the instant and separate SEQRA actions of Respondents-Defendants BROOKHAVEN and BROOKHAVEN TOWN BOARD, and the manner of adoption by Respondent-Defendant BROOKHAVEN TOWN BOARD of the SEQRA Resolution.

The odd manifestation of the situation at hand is that, although lacking standing to challenge the Special Permit Resolution, as determined herein above, their success in challenging the manner of adoption of the SEQRA Resolution, as determined pursuant to the immediately prior Claim for Relief, serves to annul the Special Permit Resolution, as it cannot stand without a properly adopted SEQRA Resolution.

Furthermore, in the related action against Respondent-Defendant BROOKHAVEN's Planning Board, [*14]while Petitioners-Plaintiffs lack standing to challenge same pursuant to their failure to demonstrate they are within the zone of interest or suffer injury different from the general public, their right to challenge pursuant to SEQRA, and the resultant nullification of Respondent-Defendant BROOKHAVEN TOWN BOARD's action, deprives the Planning Board of the ability to take action to approve the site plan, for lack of a properly adopted Special Permit, and therefore renders the actions of Respondent-Defendant BROOKHAVEN's Planning Board a nullity, void and of no force and effect.

Therefore, the Sixth Claim for Relief must be granted, solely to the extent that both the SEQRA Resolution and the Special Permit Resolutions, as well as the Site Plan Resolution of the Respondent-Defendant BROOKHAVEN's Planning Board, as they currently stand, are null, void and of no force and effect.

PETITIONERS-PLAINTIFFS' ORDER TO SHOW CAUSE:

Petitioners-Plaintiffs Order to Show Cause was brought before this Court (001) for an Order and Judgment granting various relief, premised upon the above discussed Petition-Complaint.

First, pursuant to CPLR Article 78, Petitioners-Plaintiffs seek to cancel, annul and invalidate the Resolution of Respondent-Defendant BROOKHAVEN TOWN BOARD approving the Special Permit for construction of the 350 megawatt electrical generating plant by Respondent-Defendant CAITHNESS. Petitioners-Plaintiffs achieve this result, by way of their challenge to the requisite SEQRA Resolution upon which the Special Permit Resolution was adopted, even though they lacked standing to directly challenge approval of the Special Permit, as set forth herein above.

Second, pursuant to CPLR Article 78, Petitioners-Plaintiffs seek to annul and invalidate the Resolution of Respondent-Defendant BROOKHAVEN TOWN BOARD,, rendered under the State Environmental Quality Review Act (SEQRA), approving the Finding Statement, accepting the FEIS for the Caithness Project promulgated and adopted by Respondent-Defendant LIPA, acting as"lead agency". Petitioners-Plaintiffs directly achieved this result, due to the manner of adoption of the SEQRA Resolution, as set forth herein above in this decision, having standing to challenge pursuant to SEQRA, as set forth in the Nassau Action, with the concurrence of this Court.

Third, Petitioners-Plaintiffs seek to cancel, annul and invalidate all other Resolutions, actions and authorizations granted by Respondent-Defendant BROOKHAVEN TOWN BOARD and/or Respondent-Defendant BROOKHAVEN, for the Caithness Project. Lacking specification upon which this Court can determine the relief Petitioners-Plaintiffs seek in this catch all, same must be denied.

Fourth, pursuant to CPLR 3001, Petitioners-Plaintiffs seek Judgment declaring such other matters with respect to the lawfulness of the procedures undertaken, the adoption of, the effectiveness and implementation of the above referenced Resolutions by Respondent-Defendant BROOKHAVEN TOWN BOARD and/or Respondent-Defendant BROOKHAVEN, with reference to the Caithness Project, as may be required to fully adjudicate the claims and controversies recited herein. This is a restatement of the Sixth Claim for Relief, which has already been adjudicated to the extent set forth [*15]herein above.

Fifth, Petitioners-Plaintiffs seek to enjoin Respondents-Defendants from implementing any approvals authorizing the construction or implementation of the Caithness Project. Having succeeded in nullification of the approvals herein, this further relief is moot and unnecessary, and same must be denied.

Sixth, Petitioners-Plaintiffs seek the costs and disbursements hereof. There being no showing that Respondents-Defendants' actions were wilful or contumacious, same must be denied.

PETITIONERS-PLAINTIFFS' MOTION:

Petitioners-Plaintiffs Motion(006) for an Order staying the Resolutions and restraining Respondent-Defendant CAITHNESS from undertaking any action in furtherance of the construction of the proposed 350 megawatt electric generating facility in the Hamlet of Yaphank, Town of Brookhaven, County of Suffolk, State of New York, pursuant to said Resolutions and the Site Plan approval of Respondent-Defendant BROOKHAVEN's Planning Board, pending determination of this matter and the related Article 78 against said Planning Board, is hereby dismissed as moot, in light of the above determination that the SEQRA and Special Permit Resolutions (and hence the Planning Board Site Plan Resolution) are null, void and of no force and effect.

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

ORDERED, that regarding Petitioners-Plaintiffs' underlying Combined Petition-Complaint:

1.As to the First Claim for Relief, asserting Respondent-Defendant BROOKHAVEN TOWN BOARD violated Town Law and the Town Code in adopting the Special Permit Resolution, this Court has determined that Petitioners-Plaintiffs lack standing to bring this Claim for Relief, and therefore the First Claim for Relief is hereby denied in all respects;

2.As to the Second Claim for Relief, asserting Respondent-Defendant BROOKHAVEN TOWN BOARD violated SEQRA in adopting these Resolutions, this Court has determined that:

a.Petitioners-Plaintiffs lack standing to bring this Claim for Relief as to the Special Permit Resolution;

b.Petitioners-Plaintiffs have standing to challenge pursuant to SEQRA, having been previously determined in the Nassau Action, and may contest Respondent-Defendant BROOKHAVEN TOWN BOARD's adoption of their SEQRA Resolution;

c.Petitioners-Plaintiffs may not re-litigate herein the issues of impermissible segmentation and failure to prepare and adopt a SEIS, same having been determined against them in the Nassau Action;

and therefore, the Second Claim for Relief is hereby granted solely to the extent of Petitioners-Plaintiffs standing to challenge pursuant to SEQRA herein, and is hereby denied in all other respects;

3.As to the Third Claim for Relief, asserting that, Respondent-Defendant LIPA having violated SEQRA, Public Authorities Law § 1020-ff(aa) and State Finance Law § 123-b in its SEQRA determination and approval of the PPA, the subsequent adoption of the Special Permit Resolution and the SEQRA Resolution by Respondent-Defendant BROOKHAVEN TOWN [*16]BOARD, premised thereupon, is therefore unlawful, this Court has determined that:

a.Petitioners-Plaintiffs lack standing to bring this Claim for Relief as to the Special Permit Resolution;

b.Petitioners-Plaintiffs may not re-litigate herein the remainder of the issues raised in this Claim for Relief, same having been determined against them in the Nassau Action;

and therefore , the actions of Respondent-Defendant LIPA having been validated by the decision in the Nassau Action, the Third Claim for Relief is hereby denied in all respects;4.As to the Fourth Claim for Relief, asserting Respondent-Defendant BROOKHAVEN TOWN BOARD violated SEQRA, Open Meetings Law (Public Officers Law Article 7), Town Law, the Town Code, Town Board Procedures, and engaged in "contract zoning", in adopting the Special Permit Resolution and the SEQRA Resolution, this Court has determined that:

a.Petitioners-Plaintiffs lack standing to bring this Claim for Relief as to the Special Permit Resolution, including the allegations of "contract zoning" and violations of Town Law and the Town Code;

b.Petitioners-Plaintiffs may not re-litigate herein the general assertions of SEQRA violations herein, same having been determined against them in the Nassau Action;

c.Petitioners-Plaintiffs have not proffered substantive allegations in support of the assertion that the Open Meetings Law has been violated;

d.Respondent-Defendant BROOKHAVEN TOWN BOARD did not violate their Rules of Procedure, as clearly demonstrated by the transcript of their July 25, 2006 meeting; [*17]

and therefore, the Fourth Claim for Relief is hereby denied in all respects;5.As to the Fifth Claim for Relief, asserting Respondent-Defendant BROOKHAVEN TOWN BOARD violated SEQRA, the Town Code, Town Law, Open Meetings Law (Public Officers Law Article 7), Town Board Procedures, and various others laws, conducting themselves in an ultra vires manner, in adopting the SEQRA Resolution by the holding of a "re-vote" and considering a Community Benefits Package without legal authority; this Court has determined that:

a.The issues of SEQRA (generally), the Town Code, Town Law, Open Meetings Law, Town Board Procedures and the Community Benefits Package, have been disposed of, either by the decision of this Court herein, or the decision of the Court in the Nassau Action, and need not be restated;

b.Petitioners-Plaintiffs sustained their allegations challenging adoption of the SEQRA Resolution by Respondent-Defendant BROOKHAVEN TOWN BOARD on July 25, 2006, as set forth [*18]herein above in the body of this decision;

and therefore, the Fifth Claim for Relief is hereby granted to the extent that the adoption of the SEQRA Resolution by Respondent-Defendant BROOKHAVEN TOWN BOARD is arbitrary and capricious, and therefore null, void and of no force and effect, and is hereby further remanded to Respondent-Defendant BROOKHAVEN TOWN BOARD for proper action, and is hereby denied in all other respects;

6.As to the Sixth Claim for Relief, pursuant to CPLR 3001, requesting declaratory judgment concerning:

(i)the lawfulness of procedures preceding consideration and adoption of, as well as concerning the adoption and lawfulness of, the Special Permit Resolution and the SEQRA Resolution, the FEIS, the Findings Statement, the "re-vote", and all other actions taken by or on behalf of Respondents-Defendants BROOKHAVEN and BROOKHAVEN TOWN BOARD to approve the Caithness Project, necessary for full, complete and just resolution of all claims and controversies among the parties relating thereto; and

(ii)permanent injunctive relief barring Respondents-Defendants from carrying out, implementing or otherwise acting to implement or carry out the Special Permit Resolution and the SEQRA Resolution or otherwise construct the Caithness Project;

this Court notes that:

a.The issues of SEQRA, generally, including the FEIS, were determined and disposed of by the decision rendered in the Nassau Action, as stated herein above;

b.The issue of the Special Permit Resolution was determined and disposed of by the decision herein above, to the extent that Petitioners-Plaintiffs lack standing to challenge same;

c.The issue of Petitioners-Plaintiffs' standing to challenge, pursuant to SEQRA, was determined and granted by the decision rendered in the Nassau Action (while ruling against them on the specifics), which in turn determined their standing to challenge the instant and separate SEQRA actions of Respondents-Defendants BROOKHAVEN and BROOKHAVEN TOWN BOARD, and the manner of adoption of the SEQRA Resolution by said Respondent-Defendant;

and therefore, the Sixth Claim for Relief must be granted, to the extent that:

1.The SEQRA Resolution is hereby declared null, void and of no force and effect; and

2.The Special Permit Resolutions is hereby declared null, void and of no force and effect, because a valid SEQRA determination must be adopted prior to its approval;

3.The Site Plan Resolution of Respondent-Defendant BROOKHAVEN's Planning Board is hereby declared null, void and of no force and effect, because a valid Special Permit approval must be adopted by Respondent-Defendant BROOKHAVEN TOWN BOARD prior to its approval;

and it is further

ORDERED, therefore, that regarding Petitioners-Plaintiffs' Order to Show Cause (001):

a.Judgment and Order, pursuant to CPLR Article 78, cancelling annulling and invalidating the Special Permit Resolution, with waivers and variances, adopted by Respondent-Defendant BROOKHAVEN TOWN BOARD, on July 25, 2006, is granted for the reasons set forth herein above;

b.Judgment and Order, pursuant to CPLR Article 78, annulling and invalidating the SEQRA Resolution of Respondent-Defendant BROOKHAVEN TOWN BOARD, dated July 25, 2006, is granted for the reasons set forth herein above;

c.Judgment and Order cancelling, annulling and invalidating all other Resolutions, actions and [*19]authorizations granted by Respondent-Defendant BROOKHAVEN TOWN BOARD and/or Respondent-Defendant BROOKHAVEN, for the purpose of authorizing and implementing the Caithness Project, is hereby denied for lack of specificity as to the relief sought;

d.Judgment and Order, pursuant to CPLR 3001, granting Declaratory Judgment in favor of Petitioners-Plaintiffs as to matters with respect to the lawfulness of the procedures undertaken, the adoption of, the effectiveness and implementation of Special Permit Resolution, the SEQRA Resolution and all other actions and authorizations granted by Respondent-Defendant BROOKHAVEN TOWN BOARD and/or Respondent-Defendant BROOKHAVEN with reference to the Caithness Project as may be required to fully adjudicate the claims and controversies recited herein, is granted solely to the specific extent set forth herein above in this decision;

e.Judgment and Order granting a permanent injunction in favor of Petitioners-Plaintiffs enjoining Respondents-Defendants from implementing any approvals authorizing construction or implementation of the Caithness Project, is hereby dismissed as same has been rendered moot by the decision herein;

f.Judgment and Order granting Petitioners-Plaintiffs the costs and disbursements hereof, is hereby denied, as there has been no showing that the actions of Respondents-Defendants were wilful or contumacious;

and it is further.

ORDERED, that the Motion (003) of Respondent-Defendant LIPA for an Order, pursuant to CPLR 3211(a) (1), (3), (4), (5) and (7), dismissing Petitioners-Plaintiffs' Sixth Claim for Relief asserted in the Petition-Complaint, is hereby denied in all respects; and it is further

ORDERED, that the Motion (002) of Respondent-Defendant CAITHNESS for an Order, pursuant to 22 NYCRR § 130-1.1, imposing sanctions (in the form of litigation costa and attorney's fees) on Petitioners-Plaintiffs and their Counsel; and pursuant to CPLR 3211(a) (1), (3), (4), (5) and (7), dismissing the Sixth Claim for Relief asserted in Petitioners-Plaintiffs' Petition-Complaint, which seeks declaratory relief under CPLR 3001 and related injunctive relief; is hereby denied in all respects.

Dated:Riverhead, New York

May 22, 2007

____________________________________

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

TO: