Opinion
May 6, 1985
Appeal from the Supreme Court, Westchester County (Donovan, J.).
Judgment reversed insofar as appealed from, on the law, with costs the aforenoted branch of the petition granted, determination with respect to the caretaker's cottage annulled, and application for a variance with respect to the caretaker's cottage denied.
The record reveals that an application was submitted for an area variance and that the zoning board granted a variance based upon the applicable criteria. However, with respect to the caretaker's cottage, the relief respondents Assimakopoulos are seeking may only be obtained by the granting of a use variance. Where a use variance is sought, the applicant must demonstrate "unnecessary hardship" by establishing (1) that 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 Village Bd. v. Jarrold, 53 N.Y.2d 254, 257, quoting from Matter of Otto v. Steinhilber, 282 N.Y. 71, 76). The Assimakopouloses have never sought a use variance, and certainly have not alleged facts to establish the first requirement of unnecessary hardship.
Under these circumstances, the dissenter's proposal — affirmance of the area variance without prejudice to another proceeding concerning the necessity of a separate use variance — is inappropriate. First, a use variance is the primary requirement for the construction in issue. If the use is not permitted, an area variance is insufficient ( see, Matter of Wilcox v. Zoning Bd. of Appeals, 17 N.Y.2d 249; Matter of Hoffman v. Harris, 17 N.Y.2d 138). Second, as the criteria for the granting of area and use variances are similar in some respects, judicial consistency and efficiency are best served by the resolution of both issues in a single proceeding. Finally, we note that, contrary to the view expressed in the dissent, the necessity of a use variance may be considered on appeal even though such issue was not raised before the zoning board ( accord, Matter of Lauro v. Town of Brookhaven, 94 A.D.2d 703). Matters apparent on the face of the record may be examined for the first time on appeal ( see, Brown v. Heacock, 9 How Prac 345).
Additionally, we find that Special Term erred in dismissing the instant proceeding on the ground of lack of jurisdiction. As both parties concede on appeal, the secretary of the zoning board was the proper person to receive service. Lazer, Thompson and O'Connor, JJ., concur.
The record before us indicates that application was made for an area variance and that the Board of Zoning Appeals applied the appropriate criteria in issuing such a variance. Accordingly, the board's determination was properly sustained by Special Term ( see, Matter of National Merritt v. Weist, 41 N.Y.2d 438).
While a use variance may be necessary under the 1983 ordinance, that issue was not raised before the zoning board and may not now be considered on judicial review by the courts ( see, Matter of Hopkins v. Blum, 58 N.Y.2d 1011; Matter of Trump-Equitable Fifth Ave. Co. v. Gliedman, 57 N.Y.2d 588, 593; Matter of Plaza Realty Investors v. New York City Conciliation Appeals Bd., 110 A.D.2d 704; Matter of Celestial Food Corp. v. New York State Liq. Auth., 99 A.D.2d 25, 27). Petitioners are free, of course, to litigate that issue in a separate plenary action ( see, Little Joseph Realty v. Town of Babylon, 41 N.Y.2d 738, 743-744; Dellwood Dairy Co. v. City of New Rochelle, 7 N.Y.2d 374).