Opinion
October 22, 1990
Appeal from the Supreme Court, Kings County (Hurowitz, J.).
Ordered that the judgment is reversed, on the law, with costs, the determination is confirmed, and the proceeding is dismissed on the merits.
The petitioner and her husband erected additions to their house which reduced the rear-yard setback from its previous legally noncomplying 25 feet to 2 feet 6 inches, and reduced the side-yard setback from its previous legal 5 feet to 1 foot 5 inches. No building permits were ever applied for in connection with these two one-story additions. After receiving summonses charging her with violations of the Administrative Code of the City of New York, the petitioner unsuccessfully applied for an alteration permit with the New York City Department of Buildings. A subsequent application to the Board of Standards and Appeals of the City of New York (hereinafter the BSA) for a variance was also denied based on the BSA's determination that the petitioner had failed to meet two of the requirements of New York Zoning Resolution § 72-21, i.e., the "unique physical conditions" resulting in "practical difficulties or unnecessary hardship" test and the lack of "substantial impairment of adjacent property" test (New York City Zoning Resolution § 72-21 [a], [c]).
Our review of the record reveals that the court improperly substituted its own judgment for that of the BSA since the BSA's denial of the petitioner's application for an area variance from rear- and side-yard setback requirements of the New York City Zoning Resolution was supported by substantial evidence in the record and was not illegal, arbitrary or an abuse of discretion (see, Matter of Fuhst v. Foley, 45 N.Y.2d 441). The petitioner failed to establish the existence of any "unique [physical] conditions" peculiar to and inherent in the subject lot as compared to other lots in the neighborhood, such that strict compliance with the zoning law would have caused "practical difficulties" (Matter of Fuhst v. Foley, supra, at 445; Matter of Kallas v. Board of Estimate, 90 A.D.2d 774, affd 58 N.Y.2d 1030). Prior to the construction of the subject additions, the petitioner was fully capable of utilizing her property within the parameters of the zoning ordinance (see, Matter of Fuhst v. Foley, supra, at 445; Matter of Pacheco v. De Salvo, 127 A.D.2d 597; Matter of Faham v. Bockman, 151 A.D.2d 665, 667; see, 3 Rathkopf, Law of Zoning and Planning § 38.01 [4th ed]). Although the self-created nature of a hardship does not automatically preclude the granting of a variance (Human Dev. Servs. v. Zoning Bd. of Appeals, 67 N.Y.2d 702), it is a significant factor militating against granting the application (Matter of J.T.T. Contrs. v. Ward, 148 A.D.2d 537, 538-539), particularly where, as here, the hardship results from simple disregard of applicable zoning regulations (see, Matter of Sorrenti v. Siegel, 138 A.D.2d 382; Matter of Wank v. Van Etten, 55 A.D.2d 693; Matter of Banos v. Colborn, 35 A.D.2d 281, affd 30 N.Y.2d 502).
The BSA's conclusion that the variance in question would substantially impair the use of adjacent property was likewise supported by substantial evidence based upon the BSA's inspection of the premises. Kunzeman, J.P., Eiber, Balletta and Ritter, JJ., concur.