Douglaston Civic Ass'n v. Klein , 67 A.D.2d 54 ( 1979 )

OPINION OF THE COURT

Shapiro, J.

In this CPLR article 78 proceeding to review a determination of the Board of Standards and Appeals of the City of New York, the petitioners appeal from a judgment of the Supreme Court, Queens County (Finz, J.), dated May 17, 1977, which sustained the granting of a variance by the board to the intervenor-respondent (Samuel Mindel). We affirm.

On August 11, 1971 Mindel purchased the subject property. It is located on the south side of Northern Boulevard in Douglaston, Queens, between 232nd and 233rd Streets (both streets not laid out). It is an undeveloped plot set back from Northern Boulevard — 72 feet on the east and about 110 feet on the west. The plot runs 200 feet parallel with Northern Boulevard and has a depth of 300 feet on the westerly side and 402 feet on the easterly side. The property lies generally at the southern end of Little Neck Bay and the northern end of Alley Pond Extension. Northern Boulevard, in this area, is lined on both sides by commercial enterprises consisting of gas stations, a golf driving range, a diner, fast food outlets and other businesses.

On November 24, 1975 Mindel applied to the Department of Buildings for approval of plans to construct a one-story tennis facility with a parking area. The application was disapproved because use of the property as a tennis facility was not permitted in an Rl-2 zone (one-family detached) under section 22-10 of the Zoning Resolution of the City of New York. Mindel then appealed to the Board of Standards and Appeals (board) for a variance to permit the construction of a one-story building to house eight tennis courts and a parking area adjacent to the building.

On April 9, 1976 Community Planning Board 11 notified the board of its opposition to the granting of a variance. In addition, at the hearings held by the board, various civic associations and other organizations and citizens objected to the requested variance. It was brought out that more than $800,000 had been expended by the city for the development of the adjacent Alley Pond Park and for the preservation of the wetlands. The nature of the opposition is sufficiently characterized in a letter from the then chairman of the City Planning Commission who wrote: "Alley Park, when developed, is conceived of as a major natural habitat of a unique ecological character * * * The community has expressed the hope of extending the existing boundaries of Alley Park, to include the surrounding vacant lands, including the instant site. We raise these facts to underscore the need to avoid any development of a nature that would conflict with the overall planning of this area and of adjacent Alley Park. The proposal before the Board clearly conflicts with the City’s current planning program in the area.”

Mindel, on the other hand, introduced reports by real estate appraisers to the effect that the swampy nature of the property required the sinking of numerous pilings prior to construction of any residential buildings. He pointed out that, according to the appraisal reports, a complying residential use of the subject property would contain five one-family residences on lots of 60 feet by 100 feet and six one-family residences on lots of 67 feet by 100 feet. The costs of such residences would be: $52,800 for construction of the home; $8,000 for construction of the basement; $1,000 for landscaping, sewer connection, etc.; $3,000 for the necessary pilings; and $8 per square foot for the value of the land. Thus, the total cost would be $112,800 for the smaller lots and $118,400 for the larger lots.

Moreover, the maximum sales potential for the one-family residences, which would be located in an isolated area adjacent to commercial property, would only be $30,000 to $35,-000. Thus, in view of the relatively low expectation of return on the homes, the cost of construction would be prohibitive. Accordingly, Mindel argued that the granting of a variance was necessary to enable him to realize a reasonable return. By a resolution dated July 27, 1976, the board granted the variance. The resolution provides:

"whereas, the decision of the Borough Superintendent, dated November 24, 1976 * * * reads: '1. Proposed construction of physical culture establishment (indoor tennis center). Use Group 9, is not permitted as a right in an Rl-2 zoning district, as per Section 22-10 of the Zoning Resolution.’ and

"whereas, the premises and surrounding area were inspected by a committee of the Board; and

"whereas, the Board has determined that the evidence in the record supports the findings required to be made under Section 72-21 of the Zoning Resolution, and that the applicant is therefore entitled to relief on the grounds of practical difficulty and/or unnecessary hardship.

"Resolved, that the Board of Standards and Appeals does hereby make each and every one of the required findings and grants a variation in the application of the Zoning Resolution, and that the application be and it hereby is granted under Section 72-21 of the Zoning Resolution, to permit in a Rl-2 district, the erection of a one story building for use as an indoor tennis center on condition that all work shall substantially conform to drawings filed with this application * * * and on further condition that this variance shall be limited to a term of 15 years, and that all laws, rules and regulations applicable be complied with, and that substantial construction be completed within one year from the date of this resolution.”

Petitioners then commenced this CPLR article 78 proceeding seeking to set aside the determination of the board on the grounds that the granting of the variance was arbitrary and capricious and in violation of section 72-21 of the Zoning Resolution.

Special Term, in upholding the board’s determination, found that each of the criteria imposed by section 72-21 of the Zoning Resolution had been met and it therefore rejected the contention advanced by the appellants that the board had exceeded its statutory mandate in granting the variance.

On this appeal appellants again contend, as they did at Special Term, that the board exceeded its authority and arrogated to itself the legislative function of the Board of Estimate and the City Planning Commission by rezoning the area under the guise of a variance. In addition, appellants maintain that the board was not justified in making any of the findings required under section 72-21 of the Zoning Resolution. They submit that Mindel failed to establish that the return for the property would not be reasonable for each and every permitted use. They point out that pursuant to subdivision (d) of section 72-21 of the Zoning Resolution, none of the other required findings can properly be made to relieve Mindel from the self-inflicted hardship of purchasing the land with knowledge of the Rl-2 zoning. Moreover, they contend that the variance granted is not the minimum variance mandated under subdivision (e) of section 72-21.

The respondent board, on the other hand, argues that it has made every one of the required findings under section 72-21. Thus, it maintains that the property has unique physical conditions; that it cannot bring a reasonable rate of return as presently zoned; that rezoning would not alter the essential character of the neighborhood; that the hardship complained of is inherent in the land and was not self-created and that the variance granted was the minimum necessary to afford appropriate relief.

In the landmark case of Matter of Otto v Steinhilber (282 NY 71, 76) the Court of Appeals set forth the circumstances which justify the granting of a variance on the ground of unnecessary hardship saying: "Before the Board may exercise its discretion and grant a variance upon the ground of unnecessary hardship, the record must show 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. (Bassett [Bassett on Zoning (1937)] op. cit. supra, pp. 168, 169.)”

While the Zoning Resolution of the City of New York has retained the basic requirement that its zoning regulations may be varied only in cases of practical difficulty or unnecessary hardship, the elements of these terms have been more precisely defined than is common in municipal zoning ordinances generally or in the cases (see 2 Anderson, New York Zoning Law and Practice [2d ed], § 18.08). Thus, under the provisions of section 72-21 of the Zoning Resolution, the Board of Standards and Appeals may only grant a variance when it can properly make the following findings:

"(a) That there are unique physical conditions, including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to and inherent in the particular zoning lot; and that, as a result of such unique physical conditions, practical difficulties or unnecessary hardship arise in complying strictly with the use or bulk provisions of the resolution; and that the alleged practical difficulties or unnecessary hardship are not due to circumstances created generally by the strict application of such provisions in the neighborhood or district in which the zoning lot is located.

"(b) That because of such physical conditions, there is no reasonable possibility that the development of the zoning lot in strict conformity with the provisions of this resolution will bring a reasonable return,, and that the grant of a variance is therefore necessary to enable the owner to realize a reasonable return from such zoning lot.

"(c) That the variance, if granted, will not alter the essential character of the neighborhood or district in which the zoning lot is located; will not substantially impair the appropriate use or development of adjacent property; and will not be detrimental to the public welfare.

"(d) That the practical difficulties or unnecessary hardship claimed as a ground for a variance have not been created by the owner or by a predecessor in title. Where all other required findings are made, the purchase of a zoning lot subject to the restrictions sought to be varied shall not itself constitute a self-created hardship.

"(e) That within the intent and purposes of this resolution the variance, if granted, is the minimum variance necessary to afford relief; and to this end, the Board may permit a lesser variance than that applied for.”

In my opinion, the board’s findings met the criteria of the Zoning Resolution.

In Stanley Park, Inc. v Donovan (34 AD2d 690, later app 38 AD2d 861, affd 32 NY2d 668), the petitioner was denied a variance for a restaurant and a free-standing sign. In reversing, this court said (p 862): "In our opinion the 'dollars and cents’ evidence elicited by petitioner on the rehearing, together with the inferences reasonably to be drawn therefrom and from the other evidence, established that the subject premises cannot yield any reasonable return if used only for the purposes allowed within the zone in which it is located. In these circumstances respondents’ denial of petitioner’s application for a use variance was arbitrary, capricious and an abuse of discretion.”

In our case the appraisers’ reports show that the nature of the soil would necessitate extremely high construction costs for residences and that such costs would not permit the owner to obtain a fair return on his investment. The board had a right to credit those reports, buttressed, as they were, by a personal inspection of the property "by a committee of the Board”. In addition, the board properly considered the heavy traffic conditions on Northern Boulevard which reduce the site’s value as residential land (see 67 NY Jur, Zoning and Planning Laws, § 296). Thus, the board could properly find, as it did, that criteria (a) and (b) of the zoning ordinance were met.

Next, on the record before it and under the requirements of subdivision (c), the board could properly have determined, as it did, that the variance would not alter the essential character of the neighborhood nor substantially impair the development of adjacent property. In this connection the board had a right to consider that Northern Boulevard, in the immediate vicinity, is lined with commercial establishments and that the construction of a tennis facility would be more in keeping with the proposed development of the adjacent land as a park and more desirable than a tract full of homes. The record makes it obvious that the various groups which opposed the variance, including the appellants, were not against the construction of a tennis facility per se, but were against any development of the subject property. Even if single-family homes were built on the tract under consideration, they would be just as destructive, if not more so, to the wetlands and the park, than the proposed tennis building and parking lot. The fact is, though, that none of Mindel’s land encroaches upon the wetlands. In addition, the city has not undertaken to condemn the subject property and incorporate it into the proposed Alley Pond Park.

Concerning subdivision (d), I agree with the board that Mindel’s hardship was not self-created. This is not a case where the owner, knowing of the zoning restrictions, purchased the property with the intent to later obtain a use variance (see 67 NY Jur, Zoning and Planning Laws, § 305, and cases cited therein). Rather, it was only after he had purchased the property that he discovered that the soft soil in the area would require prohibitive construction costs. It was only then that he sought the variance. In this connection the board properly pointed out that subdivision (d) itself states that: "Where all other required findings are made, the purchase of a zoning lot subject to the restrictions sought to be varied shall not itself constitute a self-created hardship.”

Moreover, even if the practical difficulty were in fact self-created, that would not, in and of itself, deprive the board of its discretionary power to grant a variance (see Matter of Cherry Hill Homes v Barbiere, 28 NY2d 381; Matter of Simpson v King, 47 AD2d 634; Designer Homes v City Council of City of Yonkers, 36 AD2d 836; Matter of Craig v Zoning Bd. of Appeals of City of Yonkers, 50 AD2d 887). Certainly, therefore, purchasers who discover latent problems or obstacles which would not make it desirable to conform to the Zoning Resolution are entitled to relief. That is precisely the situation here.

The dissenters would deny the variance on the ground that the "uniqueness” of the property in question has not been established in accordance with the standards set forth in Matter of Otto v Steinhilber (282 NY 71, supra). They maintain that the same topographical conditions exist generally throughout the immediate area and that the owner’s proper remedy lies in an application for a change of zone or in an action for a declaratory judgment and that therefore the board, in granting the variance, exceeded its authority. I disagree. Apart from the prohibitive cost involved in building one-family homes on the marshland, the commercial nature of the immediate area makes it inappropriate for residential development. Thus, while they correctly point out that a use variance is not the appropriate remedy to be granted when the difficulties and hardships are shared generally with other property owners in the area, they fail to give sufficient consideration to the all-important additional characteristic of this property which makes it unique, viz., its proximity to Northern Boulevard. It is those combined factors which are controlling here.

Finally, section 22-21 of the Zoning Ordinance, which is entitled, "Uses Permitted by Special Permit By the Board of Standards and Appeals”, establishes, inter alia, the following situations under which a special permit may be granted in a Rl-2 district: camps, clubs, colleges or universities, outdoor tennis courts or ice-skating rinks, and riding academies or stables. Given the fact that permits can be granted for those special uses, the granting of a variance for an indoor tennis center is in keeping with the other uses permitted for the area. I fail to see how an indoor tennis center differs in character from such structures as a university gymnasium, a camp athletic building, a riding academy or stable, or an ice-skating rink, all of which are permitted as special uses. That being the case, the board could, as it did, properly grant a variance for an indoor tennis center as being in keeping with the established character of the district.

Thus, there being substantial evidence in the record to support all of the findings of the board, the judgment of Special Term sustaining the variance should be affirmed.