Opinion
May 8, 1989
Appeal from the Supreme Court, Westchester County (Rosato, J.).
Ordered that the order is reversed, the determination reinstated and the petition dismissed, with costs.
The instant proceeding concerns a parcel of real property situated in an M700 multifamily residential district in the Town of Eastchester. In 1982, the petitioner, which desired to erect a 12-dwelling-unit apartment building, was granted several area variances not relevant to the instant appeal. At the hearing before the Town Zoning Board of Appeals, the petitioner offered a basement floor plan showing that the 12-unit residential apartment building would also house one professional office. The petitioner's attorney expressly represented that this office of approximately 300 square feet would be rented to a professional who was also a residential tenant of the building. Pursuant to the Town of Eastchester Zoning Ordinance schedule controlling land and buildings, a professional office occupied by a residential tenant is a permitted accessory use in an M700 residential district. Thus, based upon the petitioner's attorney's express representation, no use variance was issued as none was needed.
Prior to the issuance of a building permit, the petitioner submitted more detailed building plans, including a basement floor plan clearly showing the existence of two basement offices. These plans were approved by the Town Building Inspector, and the two separate offices, which the petitioner now characterizes as a two-room office "suite", were rented out to one tenant, the Natural Life Medical Center. It is uncontroverted that the professional tenant is not also a resident of the apartment building and thus the current rental arrangement is not in conformity with the Eastchester Zoning Ordinance.
Upon our review of the record we find that the Supreme Court improperly set aside the Zoning Board's determinations. While the Town Building Inspector did approve construction of two basement offices, it is clear from the record that said approval was for one office to be rented to a professional tenant while the other was to be used by the petitioner as a building management office. The petitioner expressly represented this intention to the Building Inspector in connection with its application to install a separate electric meter "to separate [e]xpenses from the House Meter and the Management Office Meter, so we can [b]ill accordingly". Moreover, even if the Building Inspector had improperly approved plans which violated the town's Zoning Ordinance, the town would not be estopped from correcting the mistake by enforcing its Zoning Ordinance and thus the petitioner's 1987 use variance request could have been denied altogether (see, Matter of Parkview Assocs. v City of New York, 71 N.Y.2d 274, rearg denied 71 N.Y.2d 995, cert denied ___ US ___, 109 S Ct 30; Matter of E.F.S. Ventures Corp. v Foster, 71 N.Y.2d 359; Matter of Plandome Rd. Assocs. v Board of Zoning Appeals, 135 A.D.2d 820). The power to issue a variance rests exclusively with the Zoning Board of Appeals (Matter of Commco, Inc. v Amelkin, 62 N.Y.2d 260) which may decline to exercise its discretion in favor of an applicant whose actual construction has exceeded that which was previously approved (see, Matter of South Path Realty Corp. v Howe, 34 A.D.2d 647, affd 29 N.Y.2d 565). In the instant case, however, the Zoning Board of Appeals did exercise its discretion to issue a use variance terminable upon the expiration of the present tenant's lease, in effect grandfathering the nonconforming use but only as to the present tenant.
Furthermore, contrary to the petitioner's contentions, it was not entitled to an unconditional perpetual use variance as it offered no proof of economic hardship (see, Matter of Otto v Steinhilber, 282 N.Y. 71, rearg denied 282 N.Y. 681). Indeed, the record is devoid of any "dollars-and-cents" proof that the land in question cannot yield a reasonable return but for the use variance or that the owner's plight is unique to its property (Matter of Otto v Steinhilber, supra; see also, Sokoloff v Zoning Bd. of Appeals, 74 A.D.2d 868). This same analysis is applicable to the petitioner's two applications for sign variances (Matter of Otto v Steinhilber, supra; see also, Silverman v Keating, 52 A.D.2d 1076). Clearly, absent a showing of economic hardship the town Zoning Board correctly proscribed the erection and maintenance of commercial signs in this residential area (cf., Incorporated Vil. of Asharoken v Pitassy, 119 A.D.2d 404, lv denied 69 N.Y.2d 606).
We have reviewed the petitioner's remaining contentions and find them to be without merit. Brown, J.P., Kooper, Harwood and Rosenblatt, JJ., concur.