In the Matter of Roger Lazzara et al., Respondents, v. Roy M. Kern et al., Appellants

In the Matter of Roger Lazzara et al., Respondents, v Roy M. Kern et al., Appellants. [702 NYS2d 898] [MAJORITY] —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. 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, 87 NY2d 344). Pursuant to Town Law § 267-b (3), 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 NY2d 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 [3]; Matter of Beirne v Zoning Bd. of Appeals, 267 AD2d 234; Matter of Baker v Brownlie, 248 AD2d 527). Sullivan, J. P., S. Miller, Friedmann and Schmidt, JJ., concur.