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Matter of Malin v. Leibowitz

Appellate Division of the Supreme Court of New York, Second Department
Jul 29, 1996
229 A.D.2d 580 (N.Y. App. Div. 1996)

Opinion

July 29, 1996

Appeal from the Supreme Court, Nassau County (O'Brien, J.).


Ordered that the judgment is affirmed, with costs.

In determining whether to grant an application for an area variance, Village Law § 7-712-b (3) (b) requires a zoning board of appeals to balance "the benefit to the applicant * * * as weighed against the detriment to the health, safety and welfare of the neighborhood or community". The applicant for an area variance need not meet the former burden of showing that the denial of the application would cause "practical difficulty" or "significant economic injury" (see, Matter of Sasso v. Osgood, 86 N.Y.2d 374, 384). Instead, the zoning board must now apply the balancing test by addressing each of the five factors enumerated in the statute, based upon the evidence before it (see, Matter of Khan v. Zoning Bd. of Appeals, 87 N.Y.2d 344, 351-352; Matter of Sasso v. Osgood, supra, at 384-386; Matter of Eccles v. Zoning Bd. of Appeals, 224 A.D.2d 525).

In the instant case, the Village of Kings Point Board of Appeals properly applied the balancing test as set forth in Village Law § 7-712-b (3) (b) and denied the application. The Board's determination had a rational basis (see, Matter of Sasso v. Osgood, supra, at 384; Matter of Fuhst v. Foley, 45 N.Y.2d 441, 444). Miller, J.P., O'Brien, Sullivan and Altman, JJ., concur.


Summaries of

Matter of Malin v. Leibowitz

Appellate Division of the Supreme Court of New York, Second Department
Jul 29, 1996
229 A.D.2d 580 (N.Y. App. Div. 1996)
Case details for

Matter of Malin v. Leibowitz

Case Details

Full title:In the Matter of GEORGE L. MALIN et al., Appellants, v. SHAWN LEIBOWITZ et…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jul 29, 1996

Citations

229 A.D.2d 580 (N.Y. App. Div. 1996)
645 N.Y.S.2d 99

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