Dairy Barn Stores, Inc. v. Kern

Appellate Division of the Supreme Court of New York

Dairy Barn Stores, Inc. v. Kern

170 A.D.2d 679, 567 N.Y.S.2d 366, 1991 N.Y. App. Div. LEXIS 2807

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 25, 1991

StatusPublished

This text of 170 A.D.2d 679 (Dairy Barn Stores, Inc. v. Kern) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dairy Barn Stores, Inc. v. Kern, 170 A.D.2d 679, 567 N.Y.S.2d 366, 1991 N.Y. App. Div. LEXIS 2807 (N.Y. Ct. App. 1991).

Pincite

Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Zoning Appeals of the Town of Smithtown, dated December 20, 1988, which denied the petitioner’s application for an area variance, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (McCarthy, J.), entered August 24, 1989, which dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

We agree, for essentially those reasons outlined in the decision of Justice McCarthy dated August 2, 1989, that the determination of the Zoning Board of Appeals of the Town of Smithtown was supported by substantial evidence. We note, in particular, the existence of credible evidence that the granting of the area variance requested by the petitioner would be harmful to the public welfare. The Board of Zoning Appeals did not act arbitrarily or illegally in concluding, based on this evidence, that whatever harm strict enforcement of the local zoning ordinance might cause to the petitioner is outweighed by the public harm which would result if the requested variance were to be granted (see generally, Matter of Townwide Props. v Zoning Bd. of Appeals, 143 AD2d 757, 758-759; Matter of Friendly Ice Cream Corp. v Barrett, 106 AD2d 748, 749; 2 Anderson, New York Zoning Law and Practice § 23.43 [3d ed]). Bracken, J. P., Kooper, Sullivan and O’Brien, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Zoning Appeals of the Town of Smithtown, dated December 20, 1988, which denied the petitioner’s application for an area variance, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (McCarthy, J.), entered August 24, 1989, which dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

We agree, for essentially those reasons outlined in the decision of Justice McCarthy dated August 2, 1989, that the determination of the Zoning Board of Appeals of the Town of Smithtown was supported by substantial evidence. We note, in particular, the existence of credible evidence that the granting of the area variance requested by the petitioner would be harmful to the public welfare. The Board of Zoning Appeals did not act arbitrarily or illegally in concluding, based on this evidence, that whatever harm strict enforcement of the local zoning ordinance might cause to the petitioner is outweighed by the public harm which would result if the requested variance were to be granted (see generally, Matter of Townwide Props. v Zoning Bd. of Appeals, 143 AD2d 757, 758-759; Matter of Friendly Ice Cream Corp. v Barrett, 106 AD2d 748, 749; 2 Anderson, New York Zoning Law and Practice § 23.43 [3d ed]). Bracken, J. P., Kooper, Sullivan and O’Brien, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

170 A.D.2d 679, 567 N.Y.S.2d 366, 1991 N.Y. App. Div. LEXIS 2807, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dairy-barn-stores-inc-v-kern-nyappdiv-1991.

Opinion

Related

Cite This Page — Counsel Stack