IN RE: STRUCTURAL TECHNOLOGY (2008)

In a proceeding pursuant to CPLR article 78 to review a determination of the Town Board of The Town of Brookhaven dated August 1, 2006, to not consider the petitioner's application to rezone the subject property for office use, the appeal is from a judgment of the Supreme Court, Suffolk County (Costello, J.), entered January 31, 2008, which granted the petition and directed the Town Board of the Town of Brookhaven to consider the petitioner's application.

ORDERED that the judgment is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed.

 The Supreme Court erred in granting the petition and directing the Town Board of the Town of Brookhaven (hereinafter the Town Board) to consider the petitioner's rezoning application.   The Town Board is not required to consider and vote on every application for a zoning change (see Brookhaven Town Code § 85-32[B][1];  Matter of Wolff v. Town/Village of Harrison, 30 A.D.3d 432, 816 N.Y.S.2d 186;  Matter of Society of N.Y. Hosp. v. Del Vecchio, 123 A.D.2d 384, 506 N.Y.S.2d 596, affd. 70 N.Y.2d 634, 518 N.Y.S.2d 781, 512 N.E.2d 302).   Thus, the determination of the Town Board not to consider the petitioner's application is a legislative function not subject to review under CPLR article 78 (see CPLR 7803[3];  Norman v. Town Bd. of Town of Orangetown, 118 A.D.2d 839, 500 N.Y.S.2d 324;  Matter of Southern Dutchess Country Club v. Town Bd. of Town of Fishkill, 25 A.D.2d 866, 270 N.Y.S.2d 165, affd. 18 N.Y.2d 870, 276 N.Y.S.2d 121, 222 N.E.2d 739).

 Moreover, contrary to the petitioner's contentions, the claims against the Town Board do not rise to the level of a constitutional violation (see Twin Lakes Dev. Corp. v. Town of Monroe, 1 N.Y.3d 98, 769 N.Y.S.2d 445, 801 N.E.2d 821, cert. denied 541 U.S. 974, 124 S.Ct. 1883, 158 L.Ed.2d 469;  Schlossin v. Town of Marilla, 48 A.D.3d 1118, 852 N.Y.S.2d 515;  Matter of Northway 11 Communities v. Town Bd. of Town of Malta, 300 A.D.2d 786, 751 N.Y.S.2d 658).