Hutchinson v. Zoning Board of Appeals , 755 N.Y.S.2d 273 ( 2003 )

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Zoning Board of Appeals of the Incorporated Village of Cove Neck, dated July 16, 2001, which, after a hearing, denied the petitioner’s application for an area variance.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.

Preliminarily, we note that the Supreme Court was not required to transfer this proceeding to this Court pursuant to CPLR 7804 (g) (see Matter of Sasso v Osgood, 86 NY2d 374, 384 n 2 [1995]). We nevertheless retain jurisdiction for the purpose of deciding the case on the merits (see Matter of Thurman v Holahan, 123 AD2d 687 [1986]).

In determining whether to grant an application for an area variance, Village Law § 7-712-b (3) (b) requires a zoning board to balance “the benefit to the applicant * * * against the detriment to the health, safety and welfare of the neighborhood or community.” The zoning board must apply the balancing test by considering each of the five factors enumerated in the statute, based upon the evidence before it (see Matter of Ifrah v Utschig, 98 NY2d 304, 307-308 [2002]; Matter of Khan v Zoning Bd. of Appeals of Vil. of Irvington, 87 NY2d 344, 351-352 [1996]). In this case, the Zoning Board of Appeals of the Incorporated Village of Cove Neck properly applied the balancing test and considered the statutory factors in denying the petitioner’s application. Its determination had a rational basis and was supported by the evidence and therefore should not be disturbed (see Matter of Ifrah v Utschig, supra at 308). Altman, J.P., Florio, H. Miller and Adams, JJ., concur.