        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

208
CA 10-01726
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF ROGER NYE AND SHIRLEY NYE,
PETITIONERS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

ZONING BOARD OF APPEALS OF THE TOWN OF GRAND
ISLAND, RESPONDENT-APPELLANT.


HODGSON RUSS LLP, BUFFALO (PAUL PERLMAN OF COUNSEL), FOR
RESPONDENT-APPELLANT.

BROWN & KELLY LLP, BUFFALO (RYAN J. MILLS OF COUNSEL), FOR
PETITIONERS-RESPONDENTS.


     Appeal from a judgment (denominated order) of the Supreme Court,
Erie County (John A. Michalek, J.), entered March 16, 2010 in a
proceeding pursuant to CPLR article 78. The judgment granted the
petition.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the second decretal
paragraph and as modified the judgment is affirmed without costs, and
the matter is remitted to respondent for further proceedings in
accordance with the following Memorandum: Respondent granted the
request of petitioners for an area variance to construct a roof over a
deck on the side of their house, but in addition to constructing the
roof as approved, petitioners used additional material such that the
deck was enclosed, at least temporarily, on three sides. After
respondent’s Code Enforcement Officer indicated that the construction
exceeded that approved by respondent, petitioners’ request for a
second variance for the additional construction was denied.
Respondent appeals from a judgment that granted the CPLR article 78
petition seeking, inter alia, to annul the determination denying
petitioners’ application for the second variance and ordered
respondent to grant the second variance.

     In determining whether to grant the second area variance,
respondent was required to consider the five factors set forth in Town
Law § 267-b (3) (b) (see Matter of Pecoraro v Board of Appeals of Town
of Hempstead, 2 NY3d 608, 612-613; Matter of Ifrah v Utschig, 98 NY2d
304, 307-308). Respondent’s determination must be annulled if, inter
alia, the record “does not reflect that [respondent] weighed the
benefit to the applicant[s] against the detriment to the health,
safety, and welfare of the neighborhood” in the event that the
                                 -2-                           208
                                                         CA 10-01726

variance was granted (Matter of Hannett v Scheyer, 37 AD3d 603, 605).
Here, we conclude on the record before us that respondent did not
engage in that balancing test upon considering those five statutory
factors (see Matter of W.K.J. Young Group v Zoning Bd. of Appeals of
Vil. of Lancaster, 16 AD3d 1021, 1022; Matter of D’Angelo v Zoning Bd.
of Town of Webster, 229 AD2d 945, lv denied 89 NY2d 803), and thus
Supreme Court properly granted that part of the petition seeking to
annul the determination. We conclude, however, that the court erred
in further granting the petition insofar as it seeks an area variance.
Rather, the court should have remitted the matter to respondent for a
new determination of the request for the second variance (see Matter
of Russia House at Kings Point, Inc. v Zoning Bd. of Appeals of Vil.
of Kings Point, 40 AD3d 767, 768; Matter of Miller v Zoning Bd. of
Appeals of Town of E. Hampton, 276 AD2d 633, 634; cf. Matter of Bianco
Homes II, Inc. v Weiler, 295 AD2d 506, 507, lv dismissed 100 NY2d
526). We therefore modify the judgment accordingly, and we remit the
matter to respondent for a new determination of petitioners’
application for a second variance.




Entered:   February 18, 2011                   Patricia L. Morgan
                                               Clerk of the Court
