
    In the Matter of Blumenreich Properties, Inc., Petitioner, against Louis N. Waters et al., Constituting the Town Board of the Town of Oyster Bay, Respondents.
    Supreme Court, Special Term, Nassau County,
    November 19, 1957.
    
      
      John F. Coffey for petitioner.
    
      Michael J. Sullivan and Edward J. Poulos for respondents.
   , Cortland A. Johnson, J.

This is a proceeding under article 78 of the Civil Practice Act, whereby petitioner seeks to review a refusal by the Oyster Bay Town Board of petitioner’s application to "install a public garage and gasoline filling station on premises at Merrick Road and Glen Road, Massapequa. The property involved is in an “ F ” Business District, wherein the use sought is a permitted use, when allowed by the Town Board after a public hearing. Such a hearing was held upon petitioner’s application. Three reasons were stated by the Town Board for the denial of the application. The first, that there are a sufficient number of gasoline stations nearby to serve the needs of residents in the vicinity, is not, in the court’s opinion, a valid ground for determining questions of this character. The purpose of zoning is not to serve as a control of business competition. The second, that the use of the property for this purpose "would tend to have an adverse effect upon nearby properties has no support in the record. The third ground, that petitioner has failed.to sustain a burden of demonstrating that the proposed use will not adversely affect the comfort, health, welfare and safety of the town, or that it would be in harmony with and promote the general purpose and intent of the Building Zone Ordinance, attempts, as the court reads this record, to impose upon the petitioner a burden greater than the ordinance requires, and further constitutes a determination not supported by the record.

For all these reasons, the determination is, in the legal sense, arbitrary and capricious, and must be annulled. Unless a further hearing is necessary to enable the board to impose reasonable conditions, petitioner is entitled to an order granting the relief sought.

Proceed on notice accordingly.  