Rodzianko v. Bergman

Appellate Division of the Supreme Court of New York

Rodzianko v. Bergman

248 A.D.2d 621, 669 N.Y.S.2d 925, 1998 N.Y. App. Div. LEXIS 2871

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

DecidedMarch 23, 1998

StatusPublished

This text of 248 A.D.2d 621 (Rodzianko v. Bergman) 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

Rodzianko v. Bergman, 248 A.D.2d 621, 669 N.Y.S.2d 925, 1998 N.Y. App. Div. LEXIS 2871 (N.Y. Ct. App. 1998).

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Opinion

—In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Zoning Board of Appeals of the Village of Nyack, dated October 28, 1996, which, after a hearing, denied the petitioners’ application for an area variance, the petitioners appeal from a judgment of the Supreme Court, Rockland County (Miller, J.), dated January 28, 1997, which denied the petition and dismissed the proceeding.

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 zoning board must apply the balancing test by addressing each of the five factors enumerated in the statute, based on the evidence before it (Matter of Sasso v Osgood, 86 NY2d 374, 384; Matter of Malin v Leibowitz, 229 AD2d 580).

In the instant case, the determination of the Zoning Board of Appeals of the Village of Nyack had a rational basis. The Board properly applied the balancing test as set forth in Village Law § 7-712-b (3) (b) and denied the application.

Mangano, P. J., Miller, Ritter and Thompson, JJ., concur.

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—In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Zoning Board of Appeals of the Village of Nyack, dated October 28, 1996, which, after a hearing, denied the petitioners’ application for an area variance, the petitioners appeal from a judgment of the Supreme Court, Rockland County (Miller, J.), dated January 28, 1997, which denied the petition and dismissed the proceeding.

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 zoning board must apply the balancing test by addressing each of the five factors enumerated in the statute, based on the evidence before it (Matter of Sasso v Osgood, 86 NY2d 374, 384; Matter of Malin v Leibowitz, 229 AD2d 580).

In the instant case, the determination of the Zoning Board of Appeals of the Village of Nyack had a rational basis. The Board properly applied the balancing test as set forth in Village Law § 7-712-b (3) (b) and denied the application.

Mangano, P. J., Miller, Ritter and Thompson, JJ., concur.

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Bluebook (online)

248 A.D.2d 621, 669 N.Y.S.2d 925, 1998 N.Y. App. Div. LEXIS 2871, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodzianko-v-bergman-nyappdiv-1998.

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