D'Angelo v. Zoning Board

—Judgment unanimously reversed on the law without costs and petition granted. Memorandum: Supreme Court erred in denying the CPLR article 78 petition seeking to annul the determination of respondent on the ground that petitioner failed to show practical difficulties in the use of his land. Such a showing is no longer necessary (Matter of Khan v Zoning Bd. of Appeals, 87 NY2d 344, 352; see, Matter of Sasso v Osgood, 86 NY2d 374). Rather, "the Zoning Board, before granting an area variance, must engage in a balancing test, considering the factors outlined in [Town Law § 267-b (3)] * * * and weighing the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood or community” (Matter of Khan v Zoning Bd. of Appeals, supra, at 351-352). We conclude that the denial of the petition for an area variance is arbitrary and capricious and is not supported by substantial evidence (see, Matter of O’Hara v Zoning Bd. of Appeals, 226 AD2d 537). The record shows that respondent’s determination was not the result of a balancing of all of the appropriate factors (see, Town Law § 267-b; cf., Matter of Sasso v Osgood, supra, at 385-386), but was the result of general community opposition (see, e.g., Matter of Children’s Hosp. v Zoning Bd. of Appeals, 181 AD2d 1056; Matter of Pine Hill Concrete Mix Corp. v Town of Newstead Zoning Bd. of Appeals, 161 AD2d 1187, lv denied 77 NY2d 803). (Appeal from Judgment of Supreme Court, Monroe County, Calvaruso, J.—CPLR art 78.) Present—Lawton, J. P., Fallon, Callahan, Dóerr and Davis, JJ.