Opinion
November 21, 1991
Appeal from the Supreme Court, Albany County (Torraca, J.).
In August 1989, petitioner purchased a house in the City of Albany that was divided into five apartments. The area in which the house is located is zoned for one and two family dwellings. Petitioner admits that he was aware of the zoning requirements at the time of the purchase, but claims that he was under the impression that the five-unit structure was a preexisting use that could be continued. Despite this claim, however, petitioner failed to establish at the hearing before respondent that the use predated the 1968 zoning ordinance of the City. This hearing was prompted by the notice sent to petitioner by the City informing him of the zoning violation, in response to which petitioner applied for a use variance. After the hearing, respondent denied petitioner's application and petitioner commenced this CPLR article 78 proceeding to annul respondent's determination. Supreme Court dismissed the petition and petitioner appeals.
In order to obtain a use variance, petitioner was required to show unnecessary hardship by demonstrating that the property cannot provide a reasonable return as currently zoned, that the hardship results from unique characteristics of the parcel and that the proposed use will not alter the character of the neighborhood (see, Matter of Village Bd. v. Jarrold, 53 N.Y.2d 254, 257; Matter of Otto v. Steinhilber, 282 N.Y. 71, 75). Even if the hardship is found, a use variance will not be granted if the hardship is self-imposed (Matter of Clark v. Board of Zoning Appeals, 301 N.Y. 86, cert denied 340 U.S. 933). Petitioner failed to demonstrate these requirements before respondent. As to petitioner's claim that his hardship was 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), we find it to be without merit inasmuch as petitioner admitted purchasing the property with knowledge of the zoning (see, Matter of Howes v. Langendorfer, 137 A.D.2d 960, 962).
In the circumstances, the decision of respondent was neither arbitrary nor an abuse of discretion (see, Matter of Fuhst v Foley, 45 N.Y.2d 441, 444). The judgment of Supreme Court dismissing petitioner's application should therefore be affirmed.
Mahoney, P.J., Levine, Mercure and Harvey, JJ., concur. Ordered that the judgment is affirmed, without costs.