Opinion
July 20, 1992
Appeal from the Supreme Court, Suffolk County (Namm, J.).
Ordered that the appeal from the order is dismissed (see, CPLR 5701 [b] [1]), and it is further,
Ordered that the judgment is affirmed, and it is further,
Ordered that the respondents and intervenor-respondent, appearing separately and filing separate briefs, are awarded one bill of costs.
We reject the petitioners' contention that they could legally construct the desired expansion of their home for use as a master bedroom without a variance. The Code of the Village of Southampton § 116-19 (c) (3) provides that a nonconforming structure such as the petitioners' home "may be enlarged * * * except that the degree of nonconformity shall not be increased". An interpretation of that section that an increase in the bulk of a nonconformity would constitute an increase in the "degree of nonconformity" is reasonable and rational (see, Matter of Frishman v. Schmidt, 61 N.Y.2d 823). Therefore, a variance for the expansion was required.
With respect to the denial of the variance, upon review, the determination of a zoning board should be regarded as presumptively correct, and that determination will be upheld where it is supported by substantial evidence (see, Matter of Fuhst v. Foley, 45 N.Y.2d 441; Matter of Cowan v. Kern, 41 N.Y.2d 591; Matter of Perlman v. Board of Appeals, 173 A.D.2d 832 ). In the present case, the petitioners failed to make the requisite showing of "practical difficulties" in order to establish entitlement to an area variance by demonstrating that without the variance they could not utilize the structure without coming into conflict with the restrictions of the zoning ordinance (see, Matter of Fuhst v. Foley, supra, at 445). In addition, the requested variance for the extension was sought merely to accommodate a chosen aesthetic design, which will not support a finding of practical difficulties (see, Matter of Mizrachi v. Siegel, 160 A.D.2d 801). Moreover, the petitioners are presumed to have had knowledge at the time they purchased the property of the applicable zoning restrictions, and, therefore, under the circumstances of this case any hardship was self-created (see, Matter of Suratwala v. Casey, 172 A.D.2d 613; Matter of Iannucci v. Casey, 140 A.D.2d 343). Thus, the Board's determination was supported by substantial evidence, and, therefore, was proper. Thompson, J.P., Eiber, Pizzuto and Santucci, JJ., concur.