Opinion
July 5, 1961
In a proceeding under article 78 of the Civil Practice Act to review and annul a determination of the Zoning Board of Appeals of the Town of Southold, granting to the two intervenors-respondents a variance to use and occupy as a two-family dwelling their one-family house which is in a district zoned for such houses, petitioners, who are neighboring property owners, appeal from an order of the Supreme Court, Suffolk County, dated November 4, 1960, which denied their application and dismissed their petition on the merits, and confirmed the determination. Order reversed on the law and the facts, without costs; application granted; and the determination of the Zoning Board of Appeals granting a variance, annulled. Findings of fact implicit in the decision of the Special Term, which are inconsistent herewith, are reversed; and new findings of fact are made as indicated herein. The record contains no proof of "practical difficulties or unnecessary hardships" within the meaning of paragraph B of section 801 of article VIII of the local zoning ordinance (cf. Matter of Otto v. Steinhilber, 282 N.Y. 71; Matter of Forrest v. Evershed, 7 N.Y.2d 256). Hence, we find no such difficulties or hardships here. A general restriction may not be destroyed "by piece-meal exemption of pieces of land equally subject to the hardship created in the restriction" ( Matter of Levy v. Board of Standards Appeals, 267 N.Y. 347, 353-354). The remedy in such case is by amendment of the zoning ordinance ( Matter of Ostrove v. Cohen, 269 App. Div. 105 4), which may not be done under the guise of a variance ( Matter of Miller v. Silver, 278 App. Div. 962). Furthermore, it appears that, at the time of and for a considerable period prior to the purchase of the subject property by the intervenors-respondents, it was located in a district in which a two-family residence was not a permitted use. Under such circumstances a use variance may not be granted on the ground of hardship ( Matter of Clark v. Board of Zoning Appeals, 301 N.Y. 86). Nolan, P.J., Beldock, Ughetta, Pette and Brennan, JJ., concur.