IN RE: BIANCO HOMES II (2002)

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Zoning Appeals of the Incorporated Village of Hempstead dated August 3, 2000, which, after a hearing, denied the petitioners' application for an area variance, the appeal is from an order of the Supreme Court, Nassau County (DeMaro, J.), dated March 26, 2001, which annulled the determination and remitted the matter to the Board of Zoning Appeals of the Incorporated Village of Hempstead for a new determination.

ORDERED that on the court's own motion, the notice of appeal is deemed to be an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c] );  and it is further,

ORDERED that the order is modified, on the law, by deleting the provision thereof directing that a new determination be made on the application, and substituting therefor a provision directing that the Board of Zoning Appeals of the Incorporated Village of Hempstead issue the variance;  as so modified, the order is affirmed, without costs or disbursements.

Pursuant to Village Law § 7-712-b(3)(b), in determining an application for an area variance, a zoning board must engage in a balancing test, considering the five factors set forth in the statute, and weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community (see Matter of Sasso v. Osgood, 86 N.Y.2d 374, 633 N.Y.S.2d 259, 657 N.E.2d 254;  Matter of Peccoraro v. Humenik, 258 A.D.2d 465, 684 N.Y.S.2d 588).

The Board of Zoning Appeals of the Incorporated Village of Hempstead (hereinafter the Board) did not properly consider and weigh all the relevant statutory criteria.   Accordingly, the Supreme Court properly annulled the determination (see Matter of Josato v. Wright, 288 A.D.2d 384, 733 N.Y.S.2d 214;  Matter of Miller v. Zoning Bd. of Appeals of Town of E. Hampton, 276 A.D.2d 633, 634, 714 N.Y.S.2d 908).   However, since the Supreme Court also properly found that the Board's determination was not supported by substantial evidence, the Board should have been directed to issue the area variance to the petitioner, rather than make a new determination (see Matter of Bianco Homes v. Weiler, 295 A.D.2d 505, 744 N.Y.S.2d 433 [decided herewith] );  Matter of Ifrah v. Utschig, 282 A.D.2d 458, 459, 723 N.Y.S.2d 61;  Hugel v. Campbell, 276 A.D.2d 488, 713 N.Y.S.2d 697;  Lazzara v. Kern, 269 A.D.2d 449, 450, 702 N.Y.S.2d 898;  Peccoraro v. Humenik, 258 A.D.2d 465, 684 N.Y.S.2d 588.