Opinion
Submitted January 7, 2000
February 17, 2000
In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Smithtown dated February 25, 1998, which, after a hearing, granted an application by nonparty David Kleeman for an area variance, the appeal is from a judgment of the Supreme Court, Suffolk County (Werner, J.), dated January 12, 1999, which granted the petition and annulled the determination.
John B. Zollo, Town Attorney, Smithtown, N.Y., for appellants.
William G. Holst, Commack, N.Y., for respondents.
THOMAS R. SULLIVAN, J.P., SONDRA MILLER, WILLIAM D. FRIEDMANN, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, without costs or disbursements.
The determination of a Zoning Board of Appeals regarding a variance must be upheld if it is rational and supported by substantial evidence (see, Matter of Khan v. Zoning Bd. of Appeals of Vil. of Irvington, 87 N.Y.2d 344). Pursuant to Town Law § 267-b Town, a Zoning Board of Appeals, before granting a variance, must engage in a balancing test based on the factors listed in the statute (see, Matter of Sasso v. Osgood, 86 N.Y.2d 374).
Here, the Zoning Board of Appeals of the Town of Smithtown did not properly consider and weigh all the relevant statutory criteria in granting the variance and its determination was not supported by substantial evidence (see, Town Law § 267-b Town[3]; Matter of Beirne v. Zoning Board of Appeals of Village of Pleasantville, 267 A.D.2d 234 [2d Dept., Dec. 6, 1999]; Matter of Baker v. Brownlie, 248 A.D.2d 527).