Kontogiannis v. Fritts
| Decision Date | 11 June 1987 |
| Citation | 131 A.D.2d 944,516 N.Y.S.2d 536 |
| Parties | In the Matter of Arthur G. KONTOGIANNIS et al., Appellants, v. Charles B. FRITTS, as Chairman of the Town of Bethlehem Zoning Board of Appeals, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Rutnik & Rutnik (Peter A. Lynch, of counsel), Albany, for appellants.
De Angelis, Kaplowitz, Rice & Murphy (Donald D. De Angelis, of counsel), Delmar, for respondents.
Before MAIN, J.P., and MIKOLL, YESAWICH, LEVINE and HARVEY, JJ.
Appeal from a judgment of the Supreme Court at Special Term (Klein, J.), entered September 9, 1986 in Albany County, which dismissed petitioners' application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Town of Bethlehem Zoning Board of Appeals denying petitioners' application for a use variance.
Petitioner Arthur G. Kontogiannis (hereinafter petitioner) is a building contractor and land developer in respondent Town of Bethlehem, Albany County (hereinafter the Town). In November 1973, the Town approved petitioner's request to develop and construct the Olympian Gardens residential subdivision consisting of 21 building lots, each with a duplex constructed thereon. The subdivision plan also provided for the construction of a two-story community recreation building on lots designated 28-30 Olympian Drive, along with a swimming pool and proposed tennis court. Occupants of this building were to have access to 19 parking spaces. Petitioner's original plan was to charge a fee of $100 per family per year for the use of the recreational facilities but only seven families ever participated in that plan. Consequently, the tennis court was never built. The swimming pool was operated for a few years but was closed in 1977 because of economic infeasibility.
Also in 1977, petitioner applied for and obtained a building permit to construct two residential units on the second floor of the recreation building. The area was zoned for two-family dwellings but, effective October 27, 1984, the zoning was changed to the present single family. Petitioner also created an illegal third residential unit on the first floor, allegedly to house an employee, rent free, without obtaining the required municipal approval. Petitioner was prosecuted for zoning law violations and pleaded guilty. He then filed for a use variance requesting permission to convert the former recreation building into a multifamily, four-unit apartment building.
In July and September 1985, hearings were held before respondent Town of Bethlehem Zoning Board of Appeals (hereinafter the Board) with regard to petitioner's variance application. Evidence was presented as to petitioner's continued financial losses from the operation of the former recreation building. At the second hearing, necessary because petitioner failed to give some residents their required notice of the first hearing, six persons spoke in opposition to and two persons spoke in favor of petitioner's project. The Board denied the use variance application and petitioner timely commenced this CPLR article 78 proceeding. Special Term dismissed the petition and this appeal ensued.
The denial of petitioner's application for a use variance was arbitrary and capricious. Therefore, Special Term's judgment should be reversed and the Board's determination annulled.
Local zoning boards have broad discretion in considering applications for variances (see, Matter of Friendly Ice Cream Corp. v. Barrett, 106 A.D.2d 748, 483 N.Y.S.2d 782). The role of the judiciary is therefore necessarily limited and the sole concern of the reviewing court is whether there is substantial evidence to support the determination reached by the zoning board (id.). An applicant for a use variance has the burden of proving unnecessary hardship (id., at 749, 483 N.Y.S.2d 782). A use variance is "one which permits a use of land which is proscribed by the zoning regulations" (2 Anderson, New York Zoning Law & Practice § 23.05, at 164 [3d ed.] ). In order to obtain a use variance on the basis of hardship, the applicant must demonstrate that * * * (1) the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone; (2) that the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself; and (3) that the use to be authorized by the variance will not alter the essential character of the locality (Matter of Otto v. Steinhilber, 282 N.Y. 71, 76, 24 N.E.2d 851).
(See, Matter of Collins v. Carusone, 126 A.D.2d 847, 510 N.Y.S.2d 917.) Petitioner must establish all three elements of this "unnecessary hardship" test to prevail and a failure to meet any one factor would be sufficient for the Board to refuse petitioner's request (see, id...
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...793, 794, 410 N.Y.S.2d 312, affd. for reasons stated 49 N.Y.2d 729, 426 N.Y.S.2d 267, 402 N.E.2d 1168 ; cf. Matter of Kontogiannis v. Fritts, 131 A.D.2d 944, 946, 516 N.Y.S.2d 536 ; see generally Matter of Carriage Works Enters. v. Siegel, 118 A.D.2d 568, 570, 499 N.Y.S.2d 439 ). Contrary t......
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54 Marion Ave., LLC v. City of Saratoga Springs
...Bank v. Board of Zoning Appeals of Vil. of Lansing, 238 A.D.2d 874, 875, 657 N.Y.S.2d 108 [1997] ; see Matter of Kontogiannis v. Fritts , 131 A.D.2d 944, 946–947, 516 N.Y.S.2d 536 [1987] ; Matter of Douglaston Civic Assn. v. Klein, 67 A.D.2d 54, 61, 414 N.Y.S.2d 358 [1979], affd 51 N.Y.2d 9......
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Kontogiannis v. Fritts
...facts in this case are set forth in more detail in this court's prior decision involving these parties (Matter of Kontogiannis v. Fritts, 131 A.D.2d 944, 516 N.Y.S.2d 536). Briefly stated, petitioner Arthur Kontogiannis (hereinafter petitioner) sought a use variance to convert a building, w......