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IN THE MATTER OF INCORPORATED VILLAGE OF ATLANTIC BEACH, APPELLANT, v. ZONING BOARD OF APPEALS OF THE TOWN OF HEMPSTEAD, RESPONDENT-RESPONDENT; HACI ALPER TUTUS, INTERVENOR-RESPONDENT.

ORDERED that the judgment is affirmed, without costs or disbursements.

Contrary to the appellant's contention, the Zoning Board of Appeals of the Town of Hempstead (hereinafter the Zoning Board) engaged in the appropriate balancing test required by Town Law § 267-b(3)(b) in granting the application of the intervenor-respondent for an area variance (see Matter of Sasso v. Osgood, 86 N.Y.2d 374). Furthermore, the determination of the Zoning Board is supported by substantial evidence on the record when read as a whole and is, therefore, rationally based (see CPLR 7803; Baker v. Brownlie, 248 A.D.2d 527).

Since the Zoning Board providently exercised its discretion in granting the requested area variance, it is unnecessary to reach the issue of whether, under the circumstances of this case, the denial of such a request would have amounted to a confiscation of real property without adequate compensation.

PRUDENTI, P.J., FEUERSTEIN, LUCIANO and SCHMIDT, JJ., concur.

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IN RE ATLANTIC BEACH v. ZONING BD
(Mar 25, 2002)