Opinion
May 15, 1989
Appeal from the Supreme Court, Suffolk County (D'Amaro, J.).
Ordered that the judgment is reversed, on the law, with costs, and the proceeding is dismissed on the merits.
The petitioner is the assignee of a contract to purchase the subject substandard lot for a total price of $15,000. He admitted having known of the area restriction at the time he invested the money, and further conceded that his purchase was a "gamble". After a hearing, the Board of Zoning Appeals of the Town of Babylon (hereinafter the Board) denied the petitioner's application for an area variance to build a single-family residence on the grounds that the parcel was "grossly undersized" and "not suitable for any residential development" due to its shape, and that the petitioner had bought the parcel with knowledge of the restrictions and had not shown any "demonstrable hardship". Subsequently, the Supreme Court, Suffolk County, granted his petition, holding, inter alia, that the petitioner had demonstrated "a practical difficulty".
It is well established that the courts may set aside a zoning board's determination only where the record reveals some illegality, arbitrariness, or abuse of discretion (see, Matter of Cowan v Kern, 41 N.Y.2d 591, 598). In order to justify the granting of an area variance, the applicant bears the burden of establishing that strict compliance with the zoning law will cause "practical difficulties" (see, Matter of Fuhst v Foley, 45 N.Y.2d 441; Human Dev. Servs. v Zoning Bd. of Appeals, 110 A.D.2d 135, affd 67 N.Y.2d 702).
Contrary to the Supreme Court's determination, we conclude that the petitioner failed to sustain his burden. The denial of the variance does not necessarily deprive the petitioner of the ability to use his property (see, e.g., Matter of Bauer v Zoning Bd. of Appeals, 121 A.D.2d 627). It is apparent from the record that the petitioner did not consider other available uses for the property. He made no attempt to sell the property to adjoining property owners, one of whom had been trying to buy the parcel for nearly 10 years, nor did he seek to purchase adjoining property to enhance his investment (see, Matter of Courtesy Estates v Schermerhorn, 51 A.D.2d 966). Moreover, nothing in the record suggests that the prior owner was not adequately compensated when a portion of the parcel was condemned by the County of Suffolk. Consequently, it cannot be said that the petitioner demonstrated practical difficulties (see, Matter of Zulkofske v Board of Zoning Appeals, 61 A.D.2d 824, lv denied 44 N.Y.2d 646).
While a self-created difficulty does not in and of itself justify the denial of an area variance, it is a significant factor militating against granting the application (see, Matter of J.T.T. Contrs. v Ward, 148 A.D.2d 537; Matter of Paniccia v Volker, 133 A.D.2d 404). Certainly, "the existence of a self-created hardship does not entitle the landowner to demand a variance" (Matter of Cowan v Kern, supra, at 597). As noted earlier, the petitioner conceded that he purchased the property knowing of the restrictions and took a "gamble". Thus, any economic loss in the instant case was entirely self-created.
Under the circumstances, the Board's determination was neither illegal, arbitrary, nor an abuse of discretion (see, Matter of Cowan v Kern, supra). Bracken, J.P., Kooper, Harwood and Balletta, JJ., concur.