Opinion
May 28, 1976
Appeal from the Monroe Supreme Court.
Present — Marsh, P.J., Simons, Mahoney, Dillon and Witmer, JJ.
Judgment unanimously affirmed, without costs. Memorandum: Petitioner appeals from a judgment in an article 78 proceeding dismissing his petition to annul the determination of the respondent Zoning Board of Appeals of Rochester denying a use variance. It is clear that petitioner intended to reassemble his pre-existing business upon the lots which he purchased in the R-2 zone and that he had knowledge that he was purchasing property for a prohibited use. The gasoline station was clearly an integral part of petitioner's original plan, and as such his request for an enlargement of the station falls within the ambit of the self-created hardship rule. An applicant who affirmatively creates a hardship is estopped from claiming such hardship in seeking a variance from zoning requirements (Matter of Simpson v King, 47 A.D.2d 634; Matter of Carrow Care Corp. v Holmes, 36 A.D.2d 571). Petitioner created his own hardship by purchasing property in an R-2 residential zone and his application for a use variance was properly denied on grounds of self-created hardship (Matter of Clark v Board of Zoning Appeals, 301 N.Y. 86, mot for rearg den, 301 N.Y. 681, cert den 340 U.S. 933; Matter of Hoffman v Harris, 17 N.Y.2d 138; Matter of Kenyon v Quinones, 43 A.D.2d 125). It further appears from the record that petitioner failed to sustain his burden of establishing that the subject property could not yield a reasonable return if used for a purpose permitted by ordinance.