Stamm v. Board of Zoning Appeals

Appellate Division of the Supreme Court of New York

Stamm v. Board of Zoning Appeals

283 A.D.2d 995, 723 N.Y.S.2d 737, 2001 N.Y. App. Div. LEXIS 4599

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 2, 2001

StatusPublished

Cited by2 cases

This text of 283 A.D.2d 995 (Stamm v. Board of Zoning Appeals) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Stamm v. Board of Zoning Appeals, 283 A.D.2d 995, 723 N.Y.S.2d 737, 2001 N.Y. App. Div. LEXIS 4599 (N.Y. Ct. App. 2001).

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Opinion

—Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly granted the CPLR article 78 petition and annulled the use variance granted in October 1999 with respect to real property located at 839 Long Pond Road in the Town of Greece. The variance permitted a restricted business use in a single-family residential district on the ground of unnecessary hardship. As the court properly determined, respondent, Zoning Board of Appeals of the Town of Greece, erred in concluding that the alleged hardship was not self-created. The evidence establishes that the owners are investors who purchased the property on speculation fully knowing that the area was zoned residential but expecting that zoning to change in time to commercial. “Hardship is self-created, for zoning purposes, where the applicant for a variance acquired the property subject to the restrictions from which he or she seeks relief’ (Matter of Eung Lim-Kim v Zoning Bd. of Appeals, 185 AD2d 346, 347; see, Clark v Zoning Bd. of Appeals, 301 NY 86, 89, rearg denied 301 NY 681, cert denied 340 US 933; Matter of Ferruggia v Zoning Bd. of Appeals, 233 AD2d 505, 507). In view of our determination, we do not consider whether the court properly concluded that the property can provide a reasonable return as it is currently zoned. (Appeals from Judgment of Supreme Court, Monroe County, Cornelius, J. — CPLR art 78.) Present— Pigott, Jr., P. J., Wisner, Scudder, Kehoe and Burns, JJ.

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—Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly granted the CPLR article 78 petition and annulled the use variance granted in October 1999 with respect to real property located at 839 Long Pond Road in the Town of Greece. The variance permitted a restricted business use in a single-family residential district on the ground of unnecessary hardship. As the court properly determined, respondent, Zoning Board of Appeals of the Town of Greece, erred in concluding that the alleged hardship was not self-created. The evidence establishes that the owners are investors who purchased the property on speculation fully knowing that the area was zoned residential but expecting that zoning to change in time to commercial. “Hardship is self-created, for zoning purposes, where the applicant for a variance acquired the property subject to the restrictions from which he or she seeks relief’ (Matter of Eung Lim-Kim v Zoning Bd. of Appeals, 185 AD2d 346, 347; see, Clark v Zoning Bd. of Appeals, 301 NY 86, 89, rearg denied 301 NY 681, cert denied 340 US 933; Matter of Ferruggia v Zoning Bd. of Appeals, 233 AD2d 505, 507). In view of our determination, we do not consider whether the court properly concluded that the property can provide a reasonable return as it is currently zoned. (Appeals from Judgment of Supreme Court, Monroe County, Cornelius, J. — CPLR art 78.) Present— Pigott, Jr., P. J., Wisner, Scudder, Kehoe and Burns, JJ.

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283 A.D.2d 995, 723 N.Y.S.2d 737, 2001 N.Y. App. Div. LEXIS 4599, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stamm-v-board-of-zoning-appeals-nyappdiv-2001.

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