Putrino v. Zoning Board of Appeals

115 A.D.2d 932, 496 N.Y.S.2d 827, 1985 N.Y. App. Div. LEXIS 55291

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 26, 1985
• Status: Published

Opinion

Mahoney, P. J.

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Broome County) to review a determination of respondent which denied petitioner’s application for area variances.

In 1977, petitioner, a general contractor and builder in the Town of Union, Broome County, obtained a building permit to erect a two-family dwelling on property located in the community of Endwell. During the course of construction, petitioner decided to convert the structure into a four-family unit building without obtaining an additional building permit from respondent. When petitioner completed the building in 1978, he was unable to obtain a certificate of occupancy for a four-family unit. In January 1984, petitioner submitted an application to respondent to obtain area variances that would enable him to use the building as a four-family unit. After a public hearing was held, respondent denied petitioner’s application for area variances. This CPLR article 78 proceeding ensued and was transferred to this court.

We have recently considered the judicial review of decisions of local zoning boards pertaining to area variances. In Matter of Friendly Ice Cream Corp. v Barrett (106 AD2d 748, 749), we stated that since the basic inquiry in an application for an area variance is whether strict application of the ordinance will serve a valid public purpose which outweighs the injury to the property owned: "the zoning board must consider (1) how substantial the variance is in relation to the requirement, (2) whether a substantial change will be produced in the character of the neighborhood, (3) whether the difficulty can be obviated by some method feasible for the applicant to pursue other than a variance, and (4) whether, in view of the manner in which the difficulty arose, the interest of justice will be served by allowing the variance.”

A review of the record reveals that respondent did not conduct such an analysis. Instead, respondent apparently refused to issue the variances solely because "the petitioner’s plight is due to self-imposed hardship”. Self-imposed hardship does not, in and of itself, preclude a zoning board from granting an area variance (Matter of De Sena v Board of Zoning Appeals, 45 NY2d 105, 108). Further, respondent’s findings are silent as to the presence of a feasible alternative as well as to the magnitude of the requested variances in relation to the requirements of the zoning ordinances. Since this is a transferred CPLR article 78 proceeding, we do not perceive it to be our duty to make findings de novo. Accordingly, the matter must be remitted to respondent.

Determination annulled, without costs, and matter remitted to respondent for further proceedings not inconsistent herewith. Mahoney, P. J., Main, Casey, Mikoll and Yesawich, Jr., JJ., concur.