Paplow v. Minsker
| Decision Date | 13 December 1973 |
| Citation | 43 A.D.2d 122,350 N.Y.S.2d 238 |
| Parties | Application of Frances F. PAPLOW, Respondent, v. John N. MINSKER et al., Respondents, Richard F. Bockrath, Intervenor, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Moot, Sprague, Marcy, Landy, Fernbach & Smythe, Buffalo, for intervenor-appellant; Anthony DiFilippo, III, East Aurora, of counsel.
Kevin Kennedy, Buffalo, for respondent Paplow; Beartrice D. Kennedy, Buffalo, of counsel.
Walter W. Howitt, Buffalo, for respondent East Aurora Bd. of Appeals.
Before GOLDMAN, P.J., and MOULE, CARDAMONE, SIMONS and HENRY, JJ.
Intervenor-appellant in this Article 78 proceeding appeals from a judgment which annulled a variance granted by the East Aurora Zoning Board of Appeals permitting him to use his real property located in a single residence zone as a two-family residence.
The building was constructed 75 or 100 years ago as a single-family residence. About 40 years ago it was converted to a two-family residence and that non-conforming use continued after the Village Zoning ordinance was passed in 1961. The prior owner of the property died in January, 1971 and the property remained vacant due to complications with the estate and government liens on the property for 21 months until appellant purchased it in October, 1972. The building inspector denied appellant permission to use the property as a two-family residence because under the provisions of the zoning ordinance, the discontinuance of active and continuous use of a non-conforming building for one year constitutes an abandonment (Zoning Ordinance § 93--46; and see Village of Spencerport v. Webaco Oil Co., 33 A.D.2d 634, 305 N.Y.S.2d 20). The Board of Appeals unanimously granted a variance to reestablish the non-conforming use and Special Term annulled that determination, holding that the appellant had not proved the unnecessary hardship required for a variance under the rule of Otto v. Steinhiber, 282 N.Y. 71, 24 N.E.2d 851 and also that if there was any hardship to appellant, it was self-imposed.
The Board could fairly find on the evidence before it that appellant's problem was unique 1 and that reestablishment of the prior non-conforming use would not alter the essential character of the neighborhood. However, there was no evidence before it and it made no finding that the property would not yield a reasonable return if the use was restricted to that permitted by the ordinance or that the economic hardship associated with reconverting the property to a permitted use was unreasonable because of the property's physical characteristics (Fiore v. Zoning Board of Appeals, 21 N.Y.2d 393, 397, 288 N.Y.S.2d 62, 64, 235 N.E.2d 121, 123; Otto v. Steinhilber, supra). Appellant should be permitted to submit proof on that issue so that the Board may make appropriate findings.
Furthermore, we do not agree that any hardship resulting to appellant was self-imposed within the spirit and holdings of the case law on the subject which provides that a property owner may not create a condition of hardship by acquiring restricted land and then assert that condition as an excuse for a variance.
The variance procedure is designed to grant administrative relief from hardship resulting to an individual property owner by the literal application of zoning requirements. The procedure is abused when an owner uses it as a means of obtaining some private advantage over his neighbor or to the detriment to the neighborhood or area in general. Therefore, the general rule is that a property owner is not entitled to a use variance to relieve himself from a self-imposed hardship (Matter of Clark v. Zoning Board of Appeals, 301 N.Y. 86, 92 N.E.2d 903). Even if a property owner does not have actual knowledge of the applicable provisions of the ordinance, he is bound by them and by any facts and circumstances concerning the use of the property which he may learn by exercising reasonable diligence (2 Anderson, New York Zoning Law and Practice (2d ed) § 18.29; 42 N.Y.Jur., Notice and Notices, § 3). Having said that, however, it is much too severe a result to deny the opportunity for relief in this case solely on the basis of self-imposed hardship. While app...
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Swartz v. Wallace
...of "self-imposed hardship". For purposes of this appeal, we do not pass upon the validity of that ruling (see Matter of Paplow v. Minsker, 43 A.D.2d 122, 350 N.Y.S.2d 238). Nor do we pass upon the validity of the assertion contained in respondents' brief that under the ordinance, the board ......
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Courtney v. City of Albany Bd. of Zoning Appeals
...not self-imposed because he was reasonably diligent in researching the zoning and prior use of the property (cf., Matter of Paplow v. Minsker, 43 A.D.2d 122, 350 N.Y.S.2d 238), we find it to be without merit inasmuch as petitioner admitted purchasing the property with knowledge of the zonin......
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Tharp v. Zoning Bd. of Appeals of the City of Saratoga Springs
...circumstances concerning the use of the property which he may learn by exercising reasonable diligence ( see, Matter of Paplow v. Minsker, 43 A.D.2d 122, 124, 350 N.Y.S.2d 238). Here, Peartree chose to consummate the purchase of the subject property despite his knowledge that the area where......
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Carcuro v. Madigan
...of the use for a substantial period of time could effect the right to reinstitute the nonconforming use (see, Matter of Paplow v. Minsker, 43 A.D.2d 122, 124, 350 N.Y.S.2d 238). We reject petitioner's estoppel argument, which is based upon the City's issuance of the restaurant permit (see, ......