IN RE: Gregory M. PECCORARO (1999)

In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Village of Babylon, dated May 20, 1996, and amended May 21, 1997, which, after a hearing, denied the petitioner's application for an area variance, the appeal is from a judgment of the Supreme Court, Suffolk County (Werner, J.), dated December 19, 1997, which granted the petition and directed that a variance be issued to the petitioner.

ORDERED that the judgment is affirmed, with costs.

 Contrary to the appellants' contention, the Supreme Court properly granted the petition for an area variance.   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 outlined 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 Khan v. Zoning Bd. of Appeals of the Vil. of Irvington, 87 N.Y.2d 344, 351-352, 639 N.Y.S.2d 302, 662 N.E.2d 782;  Matter of Sasso v. Osgood, 86 N.Y.2d 374, 633 N.Y.S.2d 259, 657 N.E.2d 254).   Although one of the factors which must be considered is whether the applicant's difficulty is self-created, this factor is not determinative (see, Matter of Sasso v. Osgood, 86 N.Y.2d 374, 633 N.Y.S.2d 259, 657 N.E.2d 254, supra;  Matter of Baker v. Brownlie, 248 A.D.2d 527, 670 N.Y.S.2d 216).   Here, the appellants failed to consider four of the five relevant statutory factors, and to engage in the requisite balancing test.   Furthermore, the record contains no evidence that granting the variance application would have an undesirable effect on the character of the neighborhood or an adverse impact on physical and environmental conditions.   Considering all of the statutory factors, the appellants' determination is not supported by substantial evidence (see, Sasso v. Osgood, 86 N.Y.2d 374, 633 N.Y.S.2d 259, 657 N.E.2d 254, supra;  Matter of Necker Pottick, Fox Run Woods Builders Corp. v. Duncan, 251 A.D.2d 333, 673 N.Y.S.2d 740;  Matter of Baker v. Brownlie, supra;  Matter of Padwee v. Bronnes, 242 A.D.2d 334, 661 N.Y.S.2d 52;  Matter of Frank v. Scheyer, 227 A.D.2d 558, 642 N.Y.S.2d 956).

 Furthermore, there is no merit to the appellants' contention that the denial of prior area variance applications for the subject parcel precluded them from granting the petitioner's application.   The prior applications were made by different applicants before Village Law § 7-712-b(3) (b) was amended to define the requirements for an area variance, and involved factually distinguishable proposals for constructing a dwelling on the subject parcel.   Thus, the doctrine of res judicata is inapplicable to the petitioner's application (see, Kalpin v. Accettella, 160 A.D.2d 909, 554 N.Y.S.2d 632;  cf., Jensen v. Zoning Bd. of Appeals of the Vil. of Old Westbury, 130 A.D.2d 549, 515 N.Y.S.2d 283).

MEMORANDUM BY THE COURT.