From Casetext: Smarter Legal Research

Dairy Barn Stores, Inc. v. Kern

Appellate Division of the Supreme Court of New York, Second Department
Feb 25, 1991
170 A.D.2d 679 (N.Y. App. Div. 1991)

Opinion

February 25, 1991

Appeal from the Supreme Court, Suffolk County (McCarthy, J.).


Ordered that the judgment is affirmed, with costs.

We agree, for essentially those reasons outlined in the decision of Justice McCarthy dated August 2, 1989, that the determination of the Zoning Board of Appeals of the Town of Smithtown was supported by substantial evidence. We note, in particular, the existence of credible evidence that the granting of the area variance requested by the petitioner would be harmful to the public welfare. The Board of Zoning Appeals did not act arbitrarily or illegally in concluding, based on this evidence, that whatever harm strict enforcement of the local zoning ordinance might cause to the petitioner is outweighed by the public harm which would result if the requested variance were to be granted (see generally, Matter of Townwide Props. v Zoning Bd. of Appeals, 143 A.D.2d 757, 758-759; Matter of Friendly Ice Cream Corp. v Barrett, 106 A.D.2d 748, 749; 2 Anderson, New York Zoning Law and Practice § 23.43 [3d ed]). Bracken, J.P., Kooper, Sullivan and O'Brien, JJ., concur.


Summaries of

Dairy Barn Stores, Inc. v. Kern

Appellate Division of the Supreme Court of New York, Second Department
Feb 25, 1991
170 A.D.2d 679 (N.Y. App. Div. 1991)
Case details for

Dairy Barn Stores, Inc. v. Kern

Case Details

Full title:In the Matter of DAIRY BARN STORES, INC., Appellant, v. ROY M. KERN et…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Feb 25, 1991

Citations

170 A.D.2d 679 (N.Y. App. Div. 1991)