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HomeMy WebLinkAbout293HORNICK,b STEPHEN #293 119 ~oliday Boulevard July 28, 1960 Center Moriches, NY Page 4 ...... G~N~ED p~rm~ssionto use family dwelling, north side Skippers Lane. .... Or,eDt. . . TOWN OF SOUTHOLD, NEW YORK . APPEAL FROM DECISION OF BUILDING INSPECTOR APPEAL NO. ~93 DATE ....Ju);Y....U.;...1960 TO THE ZONING BOARD OF APPEALS, TOWN OF SOUTHOLD, N. Y. . Bridie Hornick and . I, (We) St;ephe~~~?,rWx~~ii~~;" ........ .........of ..........U9-....l!?r~~d~..~t%.~.;.. ............. ... ... .........................Center...Mo;r.1.ches............................... ............N~:y..... HEREBY APPEAL TO Municipolity State THE ZONING BOARD OF APPEALS FROM THE DECISION OF THE BUILDING INSPECTOR ON APPLICATION FOR PERMIT N8.P.~H~~.t.~~.~..~~...~oB~Eff~ .~~...2....r.~~Y...~~~~i~eg... WHEREBY THE BUILDING INSPECTOR DENIED TO of . .g.tephen.. and.. B1>;1die ..HnrniM................. ...... Name of Apprlcant -for permit (x) ( ) ( ) ... .119.. Hc:t!daV''' Blvd,.. Oent.m>' ;.Mo'l'iche'S.... . "If'. Y.............................. 5treet ancfl'Juniber Mut:l.IclpOl if}' , S't!:ite PERMIT TO USE as t\!O family dwelling PERMIT FOR OCCUPANCY . 1. LOCATION OF TH~ PROPERTY.....N/S..Skiu-neTS...Lane.......IIA.,I..'H:.st...-t.c+......:............ "Sfr'eet Use (Jlsfrrclon Lonlng Map .... .xx=........................................ ...'1I''\l''!t\t............. Map-1'l1i'~ . Lot 'n(y'-- . . Orient, N.Y. 2. PROVISION (5) OF THE ZONING ORDINANCE APPEALED (Indicote the Article Section, Sub- section and Paragraph, of the Zoning Ordinance by number. Do not quote the Ordinance.) Art III. S~ot.300. Sub I TYPE OF APPEAL Appeol is made herewith for A VARIANCE .tb 'the Zoning Ordinance or Zoning Map .I ;, A VARIANCE 'du~ to lack of access (Sta te of New York Town Low Chap. 62 Cons. Art. 16 Ser 280A, Subsection 3 / 3. (X) ( ) Laws '. 4. PREVIOUS !APPEAL', A previous appeal ~ (has not) been made with respect to this decision of the Building Inspe~tor,-.or with respect to this p raperty. Such appeal wa~, ( .) 'requ~st for a special permit ,( ) :requ~st for a variance , '~\ and was made i'~ Ap~~aINo:' ................................Dated ...................................................................... : \" \." , \. REASON FOR ~I?PEAL ( ) A Variance to ~e~'ion ~OA Subsection 3 (X) A Variance to th~ ZOnin~\ordinance ( ) ,.., , We wish ~o make a' two family dwelling of the existing large dwelling on the,premises. This dwelling is idealy suited to conversion to two apartment~, having four room upstairs and 7rooms down stairs, ~fEfeq~~Jt,\l! fJr.Sth~e~~n ttm?t large for one family. . (Continue on other side) Form ZBl . . REASON FOR APPEAL Continued ;' 'J 1. STRICT APPLICATION OF THE house 1s too large for our needed to defray expenses. this and it is only a short main street of the village ORDINANCE would produce UNDUE HARDSHIP because I the hou one family needs, and the additional income is There is another 2 family dwelling adjoining distance to the "B" business district on the 2. The hardship created is UNIQUE and is notl shored by oil properties alike in the immediate vicinity of this property and in this use district bec~use : This is the largest one family dwe'lling in this block, the others ar, business uses or t'\<IO family dwellings. 3. The Variance would observe the spirit of the Ordinance and WOULD NOT CHANGE THE CHARACTER OF THE DISTRICT becouse: the proposed use 1s residential, it is next to an other 2 family dwelling, and a business district so there woul~ be no real change in the charicter of the neighborhood. Further information will be supplied to the Board on request. " i i I I I I i I i I I \ STATE OF N~W YORK I I) ss COUNTY OF tr I . /d Sworn to thiS..................j!/......=...............doy I , /. _ rJ I I. /t ;'2/}11d.; .Jpj...~........................................................ Signature Of.................~r..:.....19UO .... a,-~;L..2..,.>if..~........ .............. ~~. Notarv Public JUDITH T.' HOKEN' lmary Public, State of New York No. 52.0344963, Suffolk County ~mmlssion Expires March 30, 19(,1 . FORM NO. 3 . TOWN OF SOUTHOLD BUILDING DEPARTMENT TOWN CLERK'S OFFICE SOUTHOLD, N. Y. NOTICE OF DISAPPROVAL Fi Ie No. ..AppeaJ...#..293...... ............. ... ..... ........ Date ......... ..... .............July..ll.. ........... 19..6Q. To ...Br.1d1e..&..S.tephen..Horn1clt.... ......... ...U9-..HoHdaY'..Blvd.. ....... ....... ........ ........ ..... Oenter.. -Morlehe-s,..... N ,.. y...... ........ .... PLEASE TAKE NOTICE that your application dated .....................................Jul17.....ll19..60.. for permit to L~...USe..a:s...2..f'amB:y...at the premises located at .....N/s...Sk1p.per.s..La .............................L..................................... Street Or1ent, N.Y. Map. ......:x;x,x................. ....... ... Block ..... .......x,xx......................... Lot ;gx. ................... ................... is ~isappraved on the followi ng grounds ........th.ts...1s...!!,A!!..41.stt'.1c.t.... ... .<>.n.+Y... <?n.~... f.~~.l:y.... ~':lE!;1.~~n.g.~.. P.~;t;'~~.~~~~......... .......... ................ ....... ........ ................. ..... ...............................,................................................................................................................................ ................................................................................................................................................................ {'I. (I T, . ..........~~..'.~~.~.~........~.~.1...................... Building Inspector . . . . July 11, 1960 Mr Howard Terry, Building Inspector Town of Southold Southold, N.l. Dear Sir; Ths planning Board has recently disapproved our ap:'lication for a change of zone from "A" residential and agricultural to "M" multiple residence district. Will it be possible to use this large dwelling on Skippers lane for a two family dwelling? it is too large ~~r one family and we need the income if possible to get a two family dwelling. Please advise us immediately on this matter. . Yours trUlY~ Ik !It/V?11 ttk .........". t.. ........""'.,.::.<~\..~.'. ".:.: . ~::f _'.'~ .'-9~;~/ '.' _. ",f - GRIFFING, SMITH, TASKER AND LUNDBERG ATTORNEYS .AND COUNSELORS AT LAW ROBERT P. GRIFFING 1881-1956 REGINALD C. SMITH PIERRE G.LUNDBERG S4MUEL L. HAYS ROBERT W. TASKER WILLLAM W.ESSEKS 425 MAIN STREET GREENPORT, N. Y. GREEXPORT 7-1400 ARTHUR H. LUNDBERG COUNSEL October 28, 1960 Mr. Robert W. Gillispie, Jr.. Chairman Board of Appeals of the Town of Southold Main Road Southold. New York Re: Asch, et al. against the Board of Appeals Dear Sir: I wish to advise you that on October 26, 1960, Mr. Justice L. Barron Hill rendered a decision in the above proceeding dismissing the pe,ntion and denying the relief sought by the petitioners. A copy of the decision is enclosed herewith for your information. I believe that it is self-explanatory. I am preparing and will submit to the Court a proposed order in accordance with this decision. After the order is signed, a copy thereof will be served upon the attorney for the petitioners who will then have thirty days within which to appeal if they so desire. I will keep you advised as to further developments. Yours very truly, Robert W. Tasker Southold Town Attorney RWT:MY Enclosure / .? . II . . .' PET I T ION We, the undersigned, residents of Skippers Lane, Orient, Town of Southhold, Long Island, New York, do hereby c:.k- protest the application for a zoning variance by mr. Horni~, of Skippers Lane, who desires to convert his single family dwelling into a multiple unit dwelling. We are the owners of single family dwellings and we feel that a multiple dwelling on this street will depreciate the value of our homes. We have ltved here for many years and our parents before us, and we do not desire at this time to change the character of the neighborhood. ~ ."L~. ~ c.f. (J~ '.'}'YU-U;, . ltr:t__---l ~, ~\ ~ ~cf"/8~. )~::#4~. ~~ p.- J~~<_fr~ iJiM ;:A~ ./-; ~ '~~do ~AJlt;-~ 0j\.~ '1-CJ"(-' J *~::A.c-----<-<../ ~.-..J.~ ((J,. L,-.d~~h11;~' ~ . ~'-1":;".-.-......) C .op",~ ,("-1' -:5 ,.",,.J. o(.,-'r.;},~ -:J.. ~ . .....' f ? '- ..............-d.A~ V /<~~ .. . .. Skippers Lane OrientA Long Island, July 20, 1960. N.Y. Mr. Robert Gillispie, Chairman, Zoning Board of Appeals, Southold Town, New York. Dear Mr. Gillispie: This letter is in reference to the application for a variance in the Zoning Law of Bridie and Stephen Hornick to permit the use of the ir property 0 n Skippers Lane, OnEnt, as a two-family dwelling. I am a property owner on this Street and while I plan to be represented at the hearing by my attorney, Mr. Irving L. Price, Jr., I wish to call to the attention of your Board the fact that these houses on this street are one-family dwellings except that owned by Miss Phoebe Way, who occupies one side of the house, and Mrs. Brown Tabor with her son, the other - a total of three persons in the one house. This arrangement has been in effect for some years. Most of the houses on this Lane have been owned by their present occupants for long periods of time. Mine, for instance, 40 years; Mr. Burton Rackett, about 30 years; Mrs. Jula Tuthill, about 3? years; Mrs. Ethel Rackett, about 3? years; and that of Dr. and Mrs. Andrew Asch about bO years. The adoption of the Zoning Lqw by the Town was in my opinion a wonderful step in the right direction. If this variance is granted? however, a precedent will have been established and siml1ar applications would probably be granted. This, in effectt would defeat the purpose for which the Zoning Ordinance was aoopted. I hereby request that the petition be denied. SincerelY yours, ~.'--+ L ~. 0(4' -z;;___~ George R. L tham . . COUNTY OF SUFFOLK STATE OF NEW YORK I 55. W'alter B. Gagen, being duly swam, says that he is the Editor, of THE LONG ISLAND TRAVELER - MATTITUCK WATCHMAN, a public news- paper printed at Southold, in Suffolk County; and that the notice of which the annexed is a printed copy, has been published in said Long Island Traveler-Mattituck Watch- man ance each week for ......C).~.(~... weekj successively, commencing on the .........:t}.../--A-I...... day of (J~... 19..66 ...........~...~...n....~.......... 'vt-c{ Sworn to before me this .....d...~....... day af o~,~.a .......c....~...f~ ~ Notary Publlo f ~EGAL~NOTICE~. NOTICE OF HEARING' . . Pursuant to section 267 of the Town Law and the provisions of the Amended Building Zone Ordinance of the Town of Southold, Suffolk 'County, New York, public hearings will be held by the Zoning Board of Appeals of the Town . of Southold, at the Town Clerk's Of- , fice, Main Road, Southold, New York, on' July 28, 1960, on the following, appeals. . 7:30.,P. M. (E.n.S.T,), upon appliea. tiOD of Walter Kessler. Pike Street, .Mattituck, New York, ..for recognition of access in accordance with State of New York Town Law Section 280A. Location of property; private 'road known as Maple A venue off the east . side Grand Avenue, lM:attituck, New York, bounded north by Maple Avenue, east by land now or formerly of Frances "'M. White, south by Long Creek, and west by now or formerly. of John "Muttitt. 8;00 P. M. (E.D.S.T.J. upon applica- tion of Bridie & Stephen Hornick, 119 Holiday Boulevard, Center" Moriches, New York, for a variance in accordance wJth the Zoning Ordinance, Article rn, Section. 300, SUbsection 1, for per- mission to use property as a two family dwelling. Location of property: north side Skippers Lane, Orient, New York, bounded north by Allen A. Mickle, east by Phoebe Way, south by Skippers Lane, and west by Rhoda '5. Asch. Any person desiring to be heard on the above applications should appear at the time and place above specified. DATED: July 18, 1960, By Order of the Southold Town Board of Appeals. ADELE PAYNE Notflry Pub~ic. Stale of New Yorr Resid:ng in SUffolk County No. 52-3041000 Commission Expires March 30, 19!61 \ .~ ~. "" II 'I , . . \ I , I I I I LEOAt NOTICE I I t ! t I No~ice of He.ri~q Purlluant to Section 267 of the ToWn Law ~d the provi.ions of the A1lIended BUlldj,ng Zone Ordinance of the 'J.'own of Southold, lIluffollc County, New York, PU];)Ue hQar.1.ngllwill be held by the Zoning Board otAppeal. of the Town of 8outhold, at the ~ Cler~ Office, Main Roal1, Southold, New York, on July 28, 1960, on the fOllow1n9appeala I 7:~O P.M. (E.D.$.T.)~qpon applicatio~. of Walter Xe..ler, , Pike Street, Mattituck, New Yor~, for recognition of acce.. in . I accor&ance with. State of New York Town Law Section 280A. Location I of propertYI private road known a. Maple .Avenue off the e..t side Grand Avenue, Matt:1tuck, Hew YGlz:k, bounded nOrth by ~pl. Avenue, leIa.t by land now or fOi:merly of Francee It. White, south by Long Creek, and _st by ~ow or fo:r:merly of J~ MutUtt. 8.00 P.M. (8. D. S. '.t'. ), up<>n application' .of Bridie & nephen I HOrnick, 119 Ho11day BOulevard, Center Moriehell, New York, for a va;r1ance in accordance with the Zoning Ordinance, Article III, .ection 300, . Sub.sction 1, for pe:r:mbaio$o use property aa a II two ta,ully 4welling. LOeat1on of property. nortb aide Skippers il1.ane, . Orient, New York, bounded north by Allen A. Mickle, east by I . Phoebe Way,' south by Bk1pper. Lane, and we.t by RhoQa S. AlIch. \ _ I 1;' .i.~ . " ~'. . " ~.' \ \ _,...J ;1 . . I.... . ! 2 - Legal Notlce Notlce of Heair1nq Any pe:non deslrinQ te be hea.rd 01\ ithe ~ve applications 8hould appear at: theUme anGl place lII.bove apecifl.d. I DATED: J\\ly 18, 1960, J!Y Ora.rof the Southold Town Board of Appeals. '* fr* .. I PLEASB PUBLISH OlllCE, JuLy 21, 1960, AND r01\WUD 'l'HUB (3) I Al'tIDAVI'J.'S OF PUBLICA'rION IMMIP;E,ATEL'Y TO TIm BOAllD OIr AtHALS, i ..... -.' . TOW CLlU. Ol'rIcJi:, HADi !lOA!;), SOUT!iOloD, NEW YOlU(. I I .. .. '* * Copl.. mail.ate 'tbefoU<>w1n! on J\\ly 18, 1960: The Lonq 181and Traveler, .Mat1l:ltucl< watchman 1fl111amWiekhlUll, ale Walt.er Ke8s1e,l'- Br1dle & Stephen HOrn1~ .. .. .. .. smmon aHOVLD APl'BJlJl AT THE HBA1UNCJ \. I (j#//' " 71\" , ;I~~J:., el-~ ".~'-- r~~ '., ' '-<. " " I... ,.,... , "I1;d~.I1 ' '-~'~-~f r:c. ---', %(..t,,,P'~ ' . LA' , UYS T c I~ PG 1'- f) cc. 'C~U-~'-'r.;bL.' -:' ~J1~/ ?, - (" ... Kl .~ 1j;4~,,_ ;f1.'." [Jr" /./1$'" v..., U .,/~ ;SKiff , '-f. ~ ~, tl;;.'":2t~'J.~ LV- ...... "\ ~'\ , <fJ<~C!rJ,,:~ (}~. L"" ,4,W "f,)1='~,,~. J,:'_~ -. -,J' 1-",1. " ,,', " ..:' t. /'- . ~ 't/,;".:..-(,~.... _~.. -"-<"-.- ~ -. .., /' ~, . "', . ~,~ , ..........,;ff :<"<~<......~ , , /24 ct , ""7''1' , l~<. r. '1 v' II '~" ~">- ._,...~~ · (-(In"./", ','( ...j , , , lit~/t-l ~ 1 '11;Jt(-t (.;' ',I", ''c. I . 'I ' ' ..: 0.. ,c"",' I "- .4' leI? I 'I' ,---c-rl ' "-'I'l; , c , [, I 'I', !, fJ \ ,l..,t'lirJ, """ '~'_" .. I f 'c ~ . I "'~'4' '! ~ br-f':';~ t. ,. I ~ .~-~, --1 ;, .- ", i~ '[ if '1,4jrt~, . '.~ . c' ,\, . '?''?",,~ ! ,," I I I Le'_,,-", _~_-;- 4Jc~ ' ' e. ' , V','Y,..::> ,! :"Pr ri /ii;a.,v I" (, , if I" -~-'1 - \' '.-----,-- _I, {~ r-o ., 1 ! tv.'\'1 , I - '--~--... ....~ ~- - . " \ \ .-. ,1\ . -~- I IV ' , I I '0 I L.._--::; '. .rl"I,' i LJ...~.J,. , ' ~/,,_l; <> '~__ , t::y ~_ .t ./ Ij". " f '. ii ..1';;: ~~ .,~ \~ . - :- , , , ,~.' (1,-'1'>-, . : ~(. "-- >. ., r,.. I ,\;/ "'O:,J . b'-V; 1\\ "7,' , ~ 'c ~ {'i 6~ ~/'~ .. ~UPREMF. COUrF, SUf'F(;U~ ,.OUi\ny lD tl':w! ~I'I", \; 81: '''1'''' f:'t1r ~"P I .I.c ,11'. ~,n, '--, .. MEMORANDUMttl;~:/:';.;;~<;~i1' SPEC/A!_ Tr:~R,f,1 ~. By ,j ,S, C ~ 8. ASCB. -A"'mUW MiCn &ad a~ &. JA'I'tlAM. DATED October 26, 1~ 1960 Petitioner. ~ -~fl.bjt- -1&1' W. ClLW!'tE. JR.) ltOBlllT 8!:RGEN, lIDIa' ~&IISBIQ. Cif.IUlU:fJ GRIGaifIS. .J.It.. .. ~ DOnR, J1t.. connltllt1.n3 the P-bc ~ 01 "PPN1., TtNn ot Soutbold, '.f!DU. Cetalty, .., York, ~ STlPHl.1ii JDJIICIt .. AlDD IlaUIU:K, ........... ~. .. -{O." ......--...................--...---....-...----.--......--It; NilaPGndent.. In ~ Artklo Us P&'OC~f.tlt peti.ti.oou. .uk w 6il<Ul.l4. .a .r.....-itl.t~ 0: the Southold Town Board 0': Zon1ng Appe.au grAntUI.i & )1~e ~ ~Ca the iC:ODlfer.1ort ot:: ~ .... 'to a two f..U,. a"81Uq. n. hu'i 'dbofi,ll npeciitc: dndillgs co.l(:'l;!1:'JJ1nZ th;:! PAl. kill '!ha:_tMutl~, oJ: the. IUklle f~'t quelltion ..'('~ it:$ location to :.I, b1.iSll'.v:; I/:(l'l'r,. '1"~d.. '::OUI:1; Catl~ li!lIblStit\lte ita jU~nt;"l)r~hat of th~ flO;l:;:d~g\'en 1f Its v1- ~!\tJL,~,;itC. ll\,tice tl'un~e are 1'l';1,SQNI in the rnco~rl to IHuttaln tl... Uo ". . '-, IllltlJt'!tI'\Ql'lt1rn,. t~(~m.:t:1.'\..l.i". t.n.~ '''~'t'U.c:.l~.ion :.Lii' n.;m1ctJ <tut! tm~ p....t ~j;1;;J;; dL8IItistll!l{\, f, Argued by JOSEPH J. :SNELLENBURG IT NtlU lork &uprtmt (!tourt ApPELLATE DIVISION-SECOND DEPARTMENT o In the Matter of The Application of RHODA S. ASCH, ANDREW ASCH and GEORGE R. LATHAM, Petitioners-A ppeUamts, AGAINST ROBERT W. GILLISPIE, JR., ROBERT BERGEN, HER- BERT ROSENBERG, CHARLES GRIGONIS, JR. and SERGE DOYEN, JR., constituting the Zoning Board of Appeals, Town of Southold, Suffolk .County, New York, and STEPHEN HORNICK and BRIDIE HORNICK, Respondents- Resp onden.ts. o BRIEF OF RESPONDENT ZONING BOARD OF APPEALS Facts This Article 78 proceeding is brought by Petitioners-Appellants to review and annul a ~ i I I \ , 2 ij , determination of Respondent Zoning Board of Appeals of the Town of Southold, Suffolk Connty, granting Respondents Hornick a vari- ance to permit use as a two-family dwelling of their premises on the north side of State Street (Skippers Lane), Orient, New York. Respond- ents Hornicks' house, a fifty year old dwelling of between 10 and 16 rooms (fols. SO, 132), on a lot 66 by 179 feet, is located in the" A" Resi- dential and Agl'icultural District, the only resi- dential type district provided for in the Zoning Ordinance (Building Zone Ordinance of the Towll of Southold, Suffolk County, Article III). Two-family dwellings are not a permissible use in the Residential and Agricultural District. They are presnmably permitted in the "M" Multiple Residence, and specified as a permis- sible use in the "B" Business! District (Build- ing Zone Ordinance of the Town of Southold, Ar- ticle III A; Article IV). The snbject premises, located in a rural vil- lage, are bounded easterly bY' a non-conforming two family' dwelling, 65 feet from the business district on Village Lane (fols. 55-58). Diago- nally across the street are premises bisected by the business district liue; 95 feet east is Me- chauic's Lodge Hall, a place of public assembly (fo!. SO). Respondents Hornick acquired their property for seasonal use in 1959, two and one-half years subsequent to enactment of the Zoning Ordinance (fo!. 39). They applied for a change of zone to "M" Multiple Residence District, to accommo- date three families (fols. 94-95). The Planning 'J' , I , I \ ,I I 3 I Board, while not recommending the proposed change of zone, suggested an application for a variance to a two-family dwelling as a solution to the problem presented by this old-fashioned oversize dwelling, and the Town Board con- curred (fols. 79; 131-132). Upon appeal to the Zoning Board of Appeals (fols. 148-159), the usual public hearing was held (fols. 84-127). Based on evidence adduced at the hearing, and upon a personal inspection of the premises (foI. 86), Respondent Zoning Board of Appeals granted the variance (fols. 72-82). Detailed findings of fact were made by the Board (fols. 74-82; 127-135). Appellants instituted this proceeding to re,view the determination. Special Term, by memoran- dum opinion and order of Mr. Justice'Hill denied Petitioners' application and dismissed the peti- tion (fols. 178-180; 13-18). Petitioners-Appel- lants appeal to this Court. POINT I The determination of the Zoning Board of Appeals was made upon findings of fact jus. tifying the variance, and is fully supported by the evidence in the record. a. RESPONDENTS HORNICKS' PREMISES CANNOT REASONABLY BE USED AS A SINGLE FAMILY DWELLING. Respondents' dwelling is a fifty year old house having between ten and sixteen rooms. The proposed use is occupancy by two related fam- ilies on a seasonal basis. The average modern "4 I r. family might well find that a dwelling of this size presents problems of maintenance, heating and utilization of space which make occupancy thereof impracticable. Old houses require re- habilitation and constant repair. The temptation to permit them to continue to deteriorate, be- cause of the prohibitive cost of proper rehabili- tation, and large annual maintenance charges, is obvious. t, I I I Forrest v. Evershed, 7 N. Y. 2d 256; Crossroads Recreation v. Broe, 4 N. Y. 2d 43; Hopkins v. Board of Appeals, 178 Misc. 186 and 179 Misc. 325. See, also: Libby v. Board of Zoning Appeals of New Haven, 143 Conn. 46, 118 At!. 2d 894. ,I I I See, also: Culinary Institute v. Board of Zoning Appeals, 143 Conn. 257, 121 At!. 2d 637. .As a partial solution to the problem of use of large old houses, the Board of Appeals has gen- erally granted applications for two-family occu- pancy, rather than to permit the dwellings to deteriorate or to remain unoccupied (fols. 96-97). The necessity of this procedure is self-evident, since the Building Zone Ordinance makes no provision for two-family occupancy in any resi- dential zone. More particularly, in the case at 5 I l bar, Respondents' application for a change of zone to "M" Multiple Residence was not rec- ommended by the Planning Board; however, the two-family use was suggested both by the Plan- ning Board and the Town Board. Any change of zone to ameliorate Respondents' plight might well have been invalid as "spot zoning". Rodgers v. Village of To.rryt01Vn, 302 N. Y. 115. In view of the findings of both the planning and legislative bodies, upon the evidence adduced at the hearing, and upon the Board's inspection of the premises, it is clear that the parcel in question cannot reasonably be employed for the permissible single family use. b. THE HARDSHIP IS UNIQUE TO RESPONDENTS' PARCEL. Under ordinary circumstances the necessity of Board of Appeals' action in this case would have been obviated by the use district classifi- cation, and the district dividing lines. Village Lane, which adjoins Respondents' parcel on the east, distant 190 feet, is zoned as a business street. The usual depth of the business zone on the Building Zone Map of the Town of Southold is 200 feet. Ten feet of the subject premises and a portion of the building would then have been located in the" B" Business District. Occu- pancy for the uses permitted in the Business District would not require a variance, but would be subject to a permit from the Board of Ap- peals (Building Zone Ordinance of The Town of Southold, Article VIII, ~801, II). The business 6 ,w zone on Village Lane is zoned to a depth varying between 90 and 150 feet. This is a portion of the inequity bearing on Respondents' premises which the Board of Appeals attempted to rectify. The parcel between the subject premises and the business zone is another large old house, a non-conforming two-family dwelling. The busi- ness zone is located 60 feet away, for three- quarters of the depth of the subject premises. The business zone line bisects the Bubert prop- erty, diagonally across State Street. Ninety-five feet east, on the southwesterly corner of Village Lane, is Mechanic's Lodge Hall, used as a place of public assembly. There is only oue other building on the north side of the street, a single family dwelling occupied by Petitioners Rhoda and Andrew Asch. As an examination of Exhibit "A" (fols. 55- 57) will clearly show, the situation of Respond- ents Hornicks' parcel is unique on the block. The only similarly situated property is Miss Bubert's, across the street, and the major por- tion of that parcel lies in the" B" Business Dis- tri ct. Respondent Board correctly exercised its dis- cretion in this respect. The record contains no evidence disrnptive of the Board's finding. Levy v. Board of Stwndards and Ap- peals, 267 N. Y. 347; Village of Bronxville v. Frwncis, 1 App. Div. 2d 236, afl"d 1 N. Y. 2d 839; Platt v. Murdock, 193 N. Y. S. 2d 869. k 'I! ,I ,I I l 7 c. SEASONAL OCCUPANCY AS A TWO FAMILY DWELLING WITH NO CHANGE IN THE STRUCTURE OF THE BUILDING WILL NOT ALTER THE ESSENTIAL CHARACTER OF THE NEIGHBORHOOD. Oonversion of a large old dwelling from one to two family use, with no exterior alterations, will not effect a visible or functional change in the character of the street. State Street is a quiet, semi-rural "L" shaped thoroughfare, 1200 feet in length, running from the main business street of Orient Village to the shallow-water harbor. There are seven houses on the north side of the street, and the same numher on the south, all old multi-roomed dwellings. The use of Respondents' home for two families will not be inconsistent with occupancy of the other dwellings by single families, either taking board- ers and paying guests, or entertaining house guests and visiting relatives (fols. 123-125). Young Women's Hebrew Ass'n v. Board of Standards and Appea,ls, 266 N. Y. 270; Woltman v. Murdock, 6 App. Div. 2d 877. Oongruity of use and preservation of the char- acter of the neighborhood were elements con- sidered by the Zoning Board of Appeals (fols. 81-82; 86; 133-135). In light of the evidence adduced, the, Board's findings were fully justi- fied, and Special Term correctly affirmed the Board's determination. ,I , I 8 I ~ " POINT II I ~ There being a rational basis for the Board's determination, and it being neither arbitrary, capricious nor unreasonable, the courts may not substitute their judgment for that of the Board. The Zoning Board of Appeals determined: "(a) Strict application of the Ordinance would produce unnecessary hardship because the house is too large for one family needs, there is a two family dwelling adjoining and it is only a short distance to the "B" Busi- ness District or the Main Street of the Village. (b) The hardship created is unique and would not be shared by all properties alike in the immediate vicinity of this property and in the same use district because this is the largest one family dwelling in this block, the others are business uses, a two family dwelling and a single family dwelling. (c) The Variance does observe the spirit of the Ordinance and would not change the character of the district because the pro- posed use is residential. It is next tG another two family dwelling and close to a business district, so there would be no real change in the character of the neighborhood" (fols. 75-76). i II ill '1 Detailed findings of fact were made by the Board (foIs. 77-82; 127-135), and the determina- tion was properly based thereon. 9 I . II I I In the case at bar, it cannot be said that the Board of Appeals abused its discretion; rather, the overwhelming weight of the evidence ad- duced is to the contrary. Whether the Court might have arrived at a different result were it charged with the duties imposed upon the Board of Appeals is not at issue. 'Where, as here, the Board's conclusions and findings of fact are based upon substantial evidence, and the record contains no credible evidence dictating contrary findings, the Board's interpretation must be sustained. People Ex ReI. Hudson-Harlem Valley Title & Mortgage Co. v. Walker, 282 N. Y. 400; Matter of Larkiln Co. v. Schwab, 242 N. Y. 330; People Ex ReI. St. Albans Corp. v. Con- nell, 257 N. Y. 73; Rodgers v. Vi,llage of Tarrytown, 302 N. Y. 115; Diocese of Rochester v. Plalnning Board, 1 N. Y. 2d 508; Allen v, Fersh, 1 App. Div. 2d 918; Del Vecchio v. Tuomey, 283 App. Div. 955 aff'd 308 N. Y. 749; Matter of S01tnd Oil Co. Inc. v. Plonski, New York Law Journal, April 4, 1961 (App. Div. 2nd Dept.); Eisner v. Farrington, 12 App. Div. 2d 786. There is no allegation of denial of due process to Appellants nor to. the other objectants at the hearing. The main thrust of this appeal is in 10 , Ii ~ support of Appellants' conclusion that the Board should have arrived at a contrary decision upon the facts adduced. Under the authorities cited this is no ground for reversal of. the Board's determination. A fortio,-i, where the substantive question was properly decided, the decision of Special Term must be affirmed. POINT III The self-imposed hardship rule is inappli. cable to the case at bar. a. ApPLICATION OF THE SELF-IMPOSED HARDSHIP RULE HAS ALWAYS INVOLVED AFFIRMATIVE CREATION OF THE HARDSHIP CONDITION BY THE OWNER. THE PURCHASE OF IMPROPERLY ZONED PREMISES IS NOT ALONE SUFFICIENT TO INVOKE THE RULE. The self-imposed hardship rule is, in substance, a restatement of the fact that either the element of unnecessary hardship or that of uniqueness is lacking in the circumstances giving rise to the variance application. If the factual situation which makes the property incapable of being used in accordance with the use limitations appli- cable to it was created by the owner or his prede- cessor in title, the hardship cannot be said to have been caused by operation of the ordinance, but rather by the acts of the landowner. Simi- larly, if the facts giving rise to the hardship apply uniformly to all properties in the vicinity, the hardship created is not unique; the oper- ation of the ordinance does not bear solely upon \ I , Ii \ i I ! 11 one parcel so as to make the improper' zoning a matter for administrative remedy. In the latter instance the owner's acquisition of the parcel makes no case for a variance. The remedy lies with the legislative body. Petitioners-Appellants derive great comfort from the rule that a variance may not'be granted to relieve hardship which is self-inflicted, and would apply it to the situation where the sole affirmative act of the purchaser or his prede- cessor was acquisition of an improperly zoned parcel, subsequent to enactment 'of the ordinance. This is not the rnle, \8 Respondent Zoning Board of Appeals understland the law. \ In each case cited by +ppellants a variance was denied because (1) Jthe applicant or his predecessor had taken some affirmative step, other than purchase, to create the hardship con- dition, or (2) the record contained insufficient evidence to show that the property was not reasonably adapted for a conforming use. Each of these cases holds that either the element of a hardship imposed by operation of the ordinance only, was lacking, or that the hardship was not unique. ~ Clark v. Zoning Board of Appeals, 301 N. Y. 86 (1950) ; (hardship not unique: p. 91); Henry Steers, Inc. v. Rembaugh, 295 App. Div. 908, aff"d 284 N. Y. 621; (no hardship from operation of ordi- nance; not unique; hardship created by appLicant); 12 Holy Sepulchre Cemetery v. Board of Appeals of the Town of Greece, 271 App. Div. 33; (no hardship from ordi- nance; not unique); People ex reI. Fordham Manor Re- fonned Church v. Walsh, 244 N. Y. 280; (no hardship from ordinance; not unique; pp. 288-291); Thomas v. Board of Standards and Ap- peals, 263 App. Div. 352, rev'd 290 N. Y. 109; (no hardship from ordi- nance; not unique; improvement of land by owner created condition) ; Freitag v. Marsh, 280 App. Div. 934; (no proof of hardship from ordi- nance; not unique) ; Teschner v. Town of Pittsford, 129 N. Y. S. 2d 803, afl"d 285 App. Div. 851; (no hardship from ordinance; not unique; subdivided parcel: p. 805); North Titus Residential Ass'n v. Board of Zoning Appeals, 127 N. Y. S. 2d 502 (subdivider; no hardship from ordinance) ; Lehrer v. Michaelis, 11 Misc. 2d 544; (owners act of obtaining prior vari- ance created hardship) ; Sherwood v. Feriola, 193 Misc. 194; (erection of building and use by owner of business in residential zone; no hardship from ordinance) ; Cunningham v. Planning Board et al., 157 N. Y. S. 2d 698; (no proof of hardship to parcel from ordinance; not unique); 13 " Bobrowski v. Feriola, 2 App. Div. 2d 708; (no proof of hardship to parcel from ordinance; involved a contigu- ous parcel); Blumberg v. Feriola, 16 Misc. 2d 1001, rev'd 8 App. Div. 2d 850, aff'd 7 N. Y. 2d 852; (contiguous parcels; no hard- ship from ordinance where applicant purchased residential parcels for busi- ness use; no proof of non-adaptability for a permitted use). None of the authorities cited denied a vari- ance upon the sole ground that the applicant was the purchaser of an affected parcel. In each instance the court set forth the self-imposed hardship rule as another way of holding either that there was no hardship inflicted by the ordi- nance, or that it was not unique to the affected parcel. In Murphy v. Kraemer, 16 Misc. 2d 374, Mr. Justice Cortland Johnson correctly stated the rule: " ::+ *' '" Petitioner is on sounder ground in his alternative position as to the true me>aning of the self-imposed hardship rule. I agree that it does not mean that a person who acquires a parcel of land which already is so situated and zoned that it would qualify for .a variance, is thereby disabled from ob- taining one, solely because of the transfer of title, although the former owner might have had one. In such case, it seems clear to I I ~ I 14 me that since it is not the act of the pur- chaser which brings thEl hardship, into being, it is incorrect to charge him with having created it. It would be a strange doctrine that permits the perpetuation of a wrong because it comes to affect new people. In Matter of Clark v. Board of ZonVng Appeals (301 N. Y. 86), the leading case on this question, there was no showing that the property would not produce, a reasonable return if used for residential purposes and consequently it cannot be said that the case holds that Barnes lost a right which his predecessor in title had, because of the pur- chase. The hardship which ne was charged with creating was buying property for a funeral home in a zone where funeral homes were not permitted. This, of course, was a special situation created by Barnes. The case cited in the Clark opinion (p. 89), Mat- ter of Henry Steers Inc. v. Rembevugh (259 App. Div. 908, affd. 284 N. Y. 621) illus- trates better what is meant by self-imposed hardship. There, the court held that the operator of a nonconforming sand pit in a residential zone was himself the, creator of any unique situation which could be said to exist, and he was entitled to no relief from that. The difficulty with the present case is that there is no record on which to base a vari- ance and the burden is on the petitioner to make a record to support his case (Matter of Otto v. Steinhilber, 282 N. Y. 71) . · .." 16 Misc. 2d 374 at page 375. I I , j 15 See also: Land Purchasing 'Corp. of .America v. Grunewald, 20 Misc. 2d 175 (1959); Grac v. Town of Hempstead, 9 Misc. 2d 935; Rathkopf, The Law of Zoning and Plan- ning (Third Edition), Chapter 48, ~4. b. IN ANY EVENT THE SELF-IMPOSED HAlIDSHIP RULE DOES NOT APPLY TO THE PURCHASER OF DE- VELOPED PREMISES, IMPROPERLY ZONED, WHERE THE. }~XISTING STRUCTUHE WILL NOT BE ALTERED AND THE VARIANCE IS FOR A TWO FAMILY RESIDENC:E RATHE'R THAN SINGLE FAMILY OCCUPANCY. I The self-imposed hardship rule has never been applied to use of an existing developed structure. Where the purchaser acquires an existing build- ing which, at the time of acquisition, suffered from unique hardship, and no change in the structure or in the basic nature of the proposed use is contemplated by the variance, the self- imposed hardship rule may not be invoked. Respondents' use will increase occupancy of the existing dwelling by two or three persons. No encroachment by business or industry into a residential block is involved. The house is in existence, and the new use will permit interior renovations only. Each of the cases cited by appellant in sup- port of the rule concerned a change in structure or a change in use from residential to business or industrial. If this dwelling was not reason- ably adapted for single family use in the hands 16 o.f the vendo.r, the purchaser may no.t be fo.re- clo.sed fro.m use o.f the existing building as a two. family dwelling. Denial o.f a variance in this case will no.t subserve the end o.f maintenance o.f use district integrity. The building is already there. Cau a judge-made do.ctrine, designed to. prevent piece- meal destructio.n of use districts limitatio.ns, be emplo.yed to. fo.reclo.se any practical o.ccupancy! The rule is no.where set fo.rth in the enabling acts. It is so.lely a judicial interpo.latio.n, and sho.uld no.t be extended to. the situatio.n where eeo.no.mieal use o.f an existing building was per- mitted by the Bo.ard! o.f Appeals. c. IF THE PREMISES ARE IMPROPERLY ZONED, LOGIC DICTATES THAT THE' VARIANCE POWER ExERCISED BY THE BOARD OF ApPEALS, WHICH IS ESSENTIAL TO suc- CESSFUL OPERATION OF THE ORDINANCE, MAY NOT BE FORECLOSED BY ADHERENCE TO INAPPLICABLE AXIOMS. The determinatio.n o.f a variance applieatio.n requires reso.lutio.n o.f the issue o.f whether real and unique hardship is in fact impo.sed by the o.rdinance. Zo.ning must perfo.rce fo.llo.W tbe land, no.t the o.wner. If the o.wner at the time o.f en- actment o.f the o.rdinance, April, 1957, had a right to. apply fo.r a variance, a subsequent purchaser's use o.f the premises must alSo. suffer fro.m the dis- ability inherent in the o.riginal mis-zo.ning o.f the parceL The dwelling at bar was uno.ccupied fo.r so.me perio.d prio.r to. acquisitio.n by the present purchasers, and also. prio.r to. enactment o.f the Ordinance, o.wing no. do.ubt to. its impracticality fo.r single family use. If the pro.perty is no.t 17 reasonably adapted for single family use because of its physical situation and location, ownership is wholly immaterial. The conditions giving rise to the variance were created in April of 1957, by enactment of the zoning ordinance. No affirmative act of Re. spondents Hornick rendered the building unfit for single family use. That condition obtained when the Ordinance was adapted. The deter. mination under review relieves a situation which the record clearly shows to be a hardship case. A zoning board of appeals must be free to determine applications on their individual merits, not on the length of time the, owner has resided in the co=unity, nor by applications of a mechanistic rule that forecloses use of the vari- ance procedure. Barring access to the variance machinery puts a premium on plenary actions testing the constitutionality of the ordinance, and is contrary to the intent of the comprehensive zoning statutes. Dowsey v. Village of Kensington, 257 N. Y. 221. POINT IV The order of Special Tenn should be sf. finned. Respectfully submitted, I I I ~ I , JOSEPH J. SNELLENBURG II, Attorney for Respondent Zoning Board of Appeals.