Opinion
May 22, 1967
Appeal from a judgment of the Supreme Court at Special Term which, in a proceeding under CPLR article 78, (1) annulled a determination of the Zoning Board of Appeals of the City of Saratoga Springs denying an application for a variance in the permitted use of certain premises in an area zoned R-4 (two-family residence) to permit the use of the same for the purposes of an insurance agency and (2) directed the issuance of such permit. The ground of the application was unnecessary hardship, more particularly that under the R-4 classification the only permitted use for which the building was suited was for professional offices — as for doctors and lawyers — for which there was no substantial demand in that area. "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." ( Matter of Otto v. Steinhilber, 282 N.Y. 71, 76; mot. for rearg. den. 282 N.Y. 681.) In the case before us, the board, in affirming the building inspector's denial of the application for a variance, found "that the petitioner failed to meet the burden of proof imposed on him by the ordinance; that the petitioner failed to prove any hardship and any hardship or inconvenience now existing was self-created." Upon this record we cannot say that the determination of the board, made within the area of factual determination committed to it, was arbitrary or capricious. The statement that "any hardship or inconvenience now existing was self-created" was, of course, unnecessary to the decision and we give it no effect. Petitioner, a physician, in 1944 purchased the property, which is No. 590 North Broadway, for $2,500 and at an expense of $10,000 divided the first floor space into 11 rooms for use as a physician's office. The large number of small rooms is said to render the property suitable only for professional use and the cost of converting to residential use is considered prohibitive. However, petitioner himself occupied the first floor as his office for 20 years and the proof indicates that he vacated the space not because of an unfavorable location but because it was no longer adequate for his and his associates' practice. He offered the property for $15,000 and received an offer of $10,000 from a dentist and one of $12,000 from a lawyer and declined both. The intervenor, a physician, presented at one of the hearings a written offer of $12,000; and an existing offer of $12,000 from an insurance agency is conditioned upon the granting of the variance herein applied for. Although the unsuitability of the premises for residential use, except after substantial construction expense, may have been demonstrated, the record is scant indeed as respects proof of the factors necessary to a determination of the issue of fair return on the basis of the permitted use for purposes of professional offices; and we cannot assay as arbitrary the board's conclusion, after evaluating such evidence as was before it, that petitioner had not sustained the burden of proof, and hence that unnecessary hardship had not been established. Judgment reversed, on the law and the facts, and determination confirmed, without costs. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum Per Curiam.