Opinion
286 A.D. 882 142 N.Y.S.2d 253 Application of Carmine D. ARDOLINO, respondent, v. Lawrence Grant WHITE, James Marr, and Robert M. Becket, constituting the Zoning Board of Appeals of the Village of Head-of-The-Harbor, Suffolk County, New York, appellants. Supreme Court of New York, Second Department June 27, 1955.
S. Hazard Gillespie, Jr., New York City (Francis W. Phillips, New York City, on the brief), for respondent-appellant.
Douglas E. Brown, Patchogue, for petitioner-respondent.
Before WENZEL, Acting P. J., and MacCRATE, SCHMIDT, BELDOCK and UGHETTA, JJ.
MEMORANDUM BY THE COURT.
The members of the zoning board of appeals of the village of Head-of-the-Harbor appeal from an order which reversed, vacated and annulled a determination of said zoning board made on respondent's application for a variance and remanded the matter for a hearing. Respondent, claiming hardship, sought a variance to permit him to operate a nursing and convalescent home on the property, zoned for residential use. Several years prior thereto and shortly after petitioner had acquired the property with knowledge of the zoning restrictions, he applied for a variance to permit the use of the property as a hospital. That application was denied after a hearing. The board denied the instant application without a hearing. Special Term held that the 1951 record did not bar a hearing and that petitioner could possibly sustain his position and it might be that a convalescent home would meet the necessary spirit of the ordinance if a variance were granted.
Order reversed on the law, with $50 costs and disbursements, and petition dismissed.
The application to the board set forth no facts occurring subsequent to the first hearing which would warrant the board in granting a variance because of special hardship. The proof at the hearing on the prior application established that petitioner purchased the property with full knowledge of the restrictions, imposed by the zoning ordinance and with the express purpose of seeking a variance. Any hardship was self-imposed. Otto v. Steinhilber, 282 N.Y. 71, 24 N.E.2d 851; Hickox v. Griffin, 298 N.Y. 365, 83 N.E.2d 836; Clark v. Board of Zoning Appeals, 301 N.Y. 86, 89, 92 N.E.2d 903. The change in use now sought does not change the character of the hardship. There was no occasion for a new hearing. Caper v. Parker, 271 A.D. 839, 66 N.Y.S.2d 10. Statements in Reed v. Board of Standardss&sAppeals of City of New York, 255 N.Y. 126, 174 N.E. 301, and American Seminary of the Bible, Inc., v. Board of Standardss&sAppeals of City of New York, 280 A.D. 792, 112 N.Y.S.2d 904, as to the power of a board to grant a new hearing on a showing of 'slight differences', were made with relation to a particular provision of a zoning ordinance which did not require special hardship to be established in order to obtain a variance.