Kenyon v. Quinones

• Decision Date: 13 December 1973
• Citation: 350 N.Y.S.2d 242,43 A.D.2d 125
• Parties: Application of Robert L. KENYON, et al., Petitioners, v. Oscar T. QUINONES, Chairman, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 242

350 N.Y.S.2d 242

43 A.D.2d 125

Application of Robert L. KENYON, et al., Petitioners, v. Oscar T. QUINONES, Chairman, et al., Respondents.

Supreme Court, Appellate Division, Fourth Department.

Dec. 13, 1973.

Robert S. Roberson, Lockport, for petitioners.

Peter P. Corrallo, Corp. Counsel, Lockport, for respondents.

Before GOLDMAN, P.J., and DEL VECCHIO, MARSH, WITMER and MOULE, JJ.

OPINION

GOLDMAN, Presiding Justice:

This Article 78 proceeding was commenced by petitioners to set aside a determination of the Lockport Zoning Board of Appeals (Board) which granted a variance to the owner, Glenn H. Benedict, to convert and remodel a commercial building into a two-story apartment house containing eleven apartments. The Board had overruled the City Engineer's denial of a remodeling permit. This proceeding was improperly transferred to this court by Special Term, pursuant to CPLR 7804(g), on the ground that a substantial evidence question had been raised (CPLR 7803(4)). Special Term had the power and should have disposed of all the issues, but failing to have done so, this court will decide the case on the merits (General City Law, § 82(1); Matter of Conklin v. Riley, 41 A.D.2d 597, 340 N.Y.S.2d 884; Matter of Willow Garden Apts., Inc. v. Riker, 36 A.D.2d 892, 320 N.Y.S.2d 148; Matter of Fasani v. Rappaport, 30 A.D.2d 588, 290 N.Y.S.2d 279).

Respondent Benedict seeks a use variance to permit the establishment of a two-story apartment house in a R-1 district. The building is located on the southwest corner of Utica Street and Massachusetts Avenue, Lockport, New York. The principal permitted uses in such a single-family residential district are single-family detached dwellings, public parks, playgrounds and public schools (Lockport Zoning Ordinance of 1971, p. 13). At the time of the purchase of the premises by respondent on September 10, 1968, the district was zoned R-2 (two-family dwelling) and the use of the premises for a R-3 multiple residence use was prohibited (City of Lockport Ordinance of 1962, article VII, p. 11). Pursuant to article XIII, § 6, p. 28 of the 1962 Ordinance, respondent had two years in which to continue using the premises in a non-conforming use but if that use were discontinued for a period of two years, such use could not be re-established and any future use would have to comply with the provisions of the Zoning Ordinance. Prior to respondent's purchase of the property in 1968, the premises had been used as a dairy, a legal non-conforming use, until August, 1967. All of these facts were known to respondent at the time of purchase. In 1971 the Zoning Ordinance changed the classification of the district in which the premises are located to a R-1 district (single-family dwelling). See, City of Lockport Zoning Map of 1971. Over four years after purchase of the property, in January, 1973, respondent sought a use variance to permit a non-conforming use, to wit, a two-story apartment house with 11 one-bedroom apartments. When respondent bought the property he had planned to open a store on the premises but nothing was done with the premises. Petitioners-appellants are residents of Utica Street, which is a side street having virtually no through traffic and is a completely single-family residential area.

There are two questions presented on this appeal: (1) was respondent Benedict's plight the result of self-created hardship; and (2) does the record contain substantial evidence to support the Board's decision to grant the variance. Respondent's position is weak because he purchased the property in 1968 with the full knowledge of the use restriction and accordingly the hardship is of his own making. '(O)ne who thus knowingly acquires land for a prohibited use, cannot thereafter have a variance on the ground of 'special hardship" (Matter of Clark v. Board of Zoning Appeals, 301 N.Y. 86, 89, 92 N.E.2d 903). There was nothing unexpected or incalculable about respondent's claimed plight. It resulted from the mere act of purchase with full knowledge of the zoning restrictions. Even if respondent were to argue that he did not have a prohibited use in mind when he purchased the property, which is not likely here, the then existence of a restrictive zoning ordinance is more controlling than the subjective intent of the purchaser. (See, Matter of Gillispie, 14 A.D.2d 543, 218 N.Y.S.2d 247; Matter of Holy Sepulchre Cem. v. Bd. of Appeals, Greece, 271 App.Div. 33, 41, 60 N.Y.S.2d 750, 755.) A self-created hardship may not be the basis for a variance (Matter of Hoffman v. Harris, 17 N.Y.2d 138, 269 N.Y.S.2d 119, 216 N.E.2d 326) and an applicant for a variance under these circumstance will not be permitted to claim unnecessary hardship (Matter of Blumberg v. Feriola, 8 A.D.2d 850, 190 N.Y.S.2d 543, affd., 7 N.Y.2d 852, 196 N.Y.S.2d 989, 164 N.E.2d 863; Matter of Everhart v. Johnston, 30 A.D.2d 608, 290 N.Y.S.2d 348).

There is substantial lack of proof in the record as to the impossibility of realizing a reasonable return from a use permitted by the zoning regulations. All the evidence of reasonable return, or lack thereof, is contained on one page of the record and is merely a statement of present financial loss. There is no proof as to what the premises would yield as a one-family residence and that such a return would not be reasonable. When the applicant fails to prove the first of three requisites upon which a finding of hardship is based, i.e., that the permitted use will not yield a reasonable return, there is no substantial evidence to support the granting of the variance on the ground of unnecessary hardship (Matter of Otto v. Steinhilber, 282 N.Y. 71, 24 N.E.2d 851). That proof lacking, it is unnecessary to consider the other two elements in showing unnecessary hardship, (1) the unique plight of the owner and (2) the unaltered character of the neighborhood as the result of the use pursuant to a variance (Matter of Everhart v. Johnston, 30 A.D.2d 608, 290 N.Y.S.2d 348, Supra; Matter of Fasani v. Rappaport, 30 A.D.2d 588, 290 N.Y.S.2d 279, Supra; Matter of Hunt v. Carusone, 28 A.D.2d 612, 280 N.Y.S.2d 26; Matter...