Opinion
April 19, 1971
In a proceeding pursuant to article 78 of the CPLR with respect to the disapproval by the City Council of the City of Yonkers of an area variance which had been granted by the Zoning Board of Appeals of the City of Yonkers to petitioner, the appeal is from a judgment of the Supreme Court, Westchester County, dated December 17, 1970, which directed said City Council to adopt a resolution approving the variance and directed the Superintendent of the Department of Buildings of the City of Yonkers to issue to petitioner building permits to construct two apartment buildings in accordance with the variance. Judgment reversed, on the law, with $50 costs and disbursements, and petition dismissed on the merits, without costs. About January, 1969 petitioner purchased the subject real property designated No. 397 North Broadway, Yonkers. At the time of purchase and at the present time the property was located in an "M.G." zone (low density apartment district) under the Zoning Ordinance of the City of Yonkers. In December, 1969 petitioner pro forma applied to the Building Superintendent for permits to build two high density apartment buildings consisting of 144 apartment units on its property. The application was denied by the building superintendent because the plan filed did not comply with the requirements of the "M.G." zone restrictions with respect to (1) maximum height permitted, (2) floor area ratio and (3) permitted lot area for a family. Petitioner appealed to the Zoning Board of Appeals which, after a hearing, granted an area variance. Subsequently, the City Council, in conformity with the Zoning Ordinance (§ 107-93 [G], enacted July 3, 1968) and after an examination of the transcript of the public hearing before the Zoning Board of Appeals, disapproved the application by resolution adopted July 7, 1970. Petitioner instituted the instant proceeding to review the determination of the City Council. By decision dated July 31, 1970 (upon which an intermediate order dated September 2, 1970 was made), Special Term held that the constitutionality of the ordinance (§ 170-93 [G]) could not be questioned by petitioner in this proceeding and remitted the matter to the City Council, with a direction to make specific findings in support of its determination and with leave to petitioner to renew this proceeding after such findings would be made. By resolution dated September 22, 1970 the City Council again disapproved the variance application and set forth its findings in support thereof. On October 16, 1970 it was stipulated that the latter disapproval be the determination for review by the Special Term. Thereafter the judgment dated December 17, 1970 was entered, from which the present appeal was taken. In essence, petitioner's application for an area variance was predicated upon the ground that compliance with the existing zone classification ("M.G.") would impose upon it severe economic hardship and practical difficulty, specifically, as shown by petitioner's proof at the hearing, that in erecting the two proposed high density apartment buildings it would incur an "additional" expense for foundation and steel work because of a declivity in the topography of its land. Parenthetically, it is noted that no proof whatever was offered as to whether petitioner could profitably improve its land in conformity with the existing "M.G." classification. In our opinion, in the posture of this record, the City Council's determination was not illegal, arbitrary or an abuse of discretion and should not have been disturbed ( Matter of Lemir Realty Corp. v. Larkin, 11 N.Y.2d 20). Petitioner had purchased the property several months prior to the variance application; and the property when purchased had the same topography and it was subject to the same zoning ordinance. The same alleged financial hardship in erecting an apartment house on the land existed at the time of purchase. Thus, any financial hardship in complying with the zoning restrictions was voluntarily assumed by petitioner — self-imposed (see O'Brien Transfer Stor. Co. v. Incorporated Vil. of Great Neck, 2 A.D.2d 690; 2 Rathkopf, Law of Zoning, p. 48-6; 2 Anderson, American Law of Zoning, § 14.41, p. 693). Although this factor does not completely preclude a property owner from seeking an area variance, it is a material consideration if such variance is sought ( Matter of 113 Hillside Ave. Corp. v. Zaino, 27 N.Y.2d 258, 263; Contino v. Incorporated Vil. of Hempstead, 27 N.Y.2d 701). The subject zoning ordinance further provides that if a variance recommended by the Zoning Board of Appeals will increase the residential density of the district it shall be granted only after approval is given by resolution of the City Council. Apart from any question as to petitioner's self-imposed hardship and failure to meet its initial burden to establish a financial loss in conforming with the "M.G." classification, the findings of fact made by the City Council provided a sound basis for its determination disapproving the application. Among other things, the City Council found: (1) There was recently erected on North Broadway on property within less than 1,000 feet from petitioner's property a condominium-type apartment house on land topographically substantially similar to petitioner's land, which structure conformed to the zoning requirements; (2) during the pendency of this proceeding plans had been filed for the construction of a 55-unit condominium-type apartment house on the land abutting petitioner's property on the north, which apartment house also conformed to the zoning requirements and would be built on land topographically substantially similar to petitioner's; and (3) the erection by petitioner of the two high density buildings containing 144 units would be detrimental to the public interest in that area by increasing the very heavy traffic flow and the street parking problems on North Broadway. Special Term in its July 31, 1970 intermediate decision herein held inter alia that petitioner may not seek to review the City Council's determination and at the same time attack the constitutionality of the ordinance enabling the Council to make its determination ( Matter of Diocese of Rochester v. Planning Bd. of Town of Brighton, 1 N.Y.2d 508; Matter of Belclaire Holding Corp. v. Klingher, 28 A.D.2d 689). Petitioner did not appeal or seek to appeal from the intermediate order on that decision. Rather, after the City Council made its final determination on September 22, 1970, and as above stated, petitioner stipulated that that determination be fully submitted to Special Term for review and such review resulted in the judgment from which this appeal was taken. Thus, in our opinion, petitioner waived any alleged right again to raise the question of the constitutionality of the Yonkers Zoning Ordinance (§ 107-93 [G]). Moreover, assuming petitioner had not thus waived its alleged right to question the constitutionality of the ordinance in this proceeding, it is further barred from raising that question in this court, because it has not cross-appealed from Special Term's judgment under review here ( Ralston Purina v. Siegel's Poultry, 24 A.D.2d 926). Although not before us on this appeal for the foregoing reasons, nevertheless, since the question has been raised again by petitioner in this court, it is our opinion that the ordinance is constitutional (cf. Homefield Assn. of Yonkers, N.Y., v. Frank, 273 App. Div. 788, affd. 298 N.Y. 524). Latham, Acting P.J., and Brennan, J., concur; Gulotta, J., concurs in determination set forth in the above memorandum, i.e., reversal of the judgment, etc., but solely on the ground that there was a fatal deficiency in petitioner's proof, with the following memorandum, in which Shapiro, J., concurs: The statements of petitioner's attorney at the Zoning Board hearing had no probative value and the architect's testimony relative to increased costs in site preparation due to the topography was related solely to construction of a high density apartment building, a forbidden use. Nothing whatever was developed as to what the cost would be for low density construction. There were no other witnesses. If this shortcoming were overlooked for purposes of discussion, and we were to assume that the increased cost would likewise apply to low density construction, there is also lacking any dollars and cents proof to show that it would be uneconomic to build in accordance with the zoning. Were this all, it would be appropriate to remand the case for further proof, since in my opinion there is no substance to the claim that petitioner's hardship is self-imposed because it bought the property knowing of the grade difficulties. The law is well settled that a true hardship loses no right to rectification by reason of a transfer of ownership. See Matter of Hoffman v. Harris ( 17 N.Y.2d 138, 145), where the court said: "In the instant case, the Eatons — who also rented the gatehouse — would have been entitled to seek a variance without being automatically barred and we can see no reason to place their successors in any worse position." The self-imposed hardship doctrine refers to a situation in which the owner or his predecessor in interest, by reason of what he has done or proposes to do, brings the hardship into being; and not to a situation where neither had anything to do with it other than to recognize that it was there. Such is the instant case. This is how the rule was applied in the leading cases of Matter of Clark v. Board of Zoning Appeals of Town of Hempstead ( 301 N.Y. 86) and Matter of Henry Steers, Inc., v. Rembaugh ( 259 App. Div. 908, affd. 284 N.Y. 621). It more recently was so applied in Matter of 113 Hillside Ave. Corp. v. Zaino ( 27 N.Y.2d 258) and Contino v. Incorporated Vil. of Hempstead ( 27 N.Y.2d 701). In each of these last two cases a conforming plot was broken up by the then owner in such a way as to result in the creation of a non-conforming plot. Just as nothing is lost by a title transfer, neither is anything gained by one ( Matter of Fina Homes v. Young, 7 N.Y.2d 845); and consequently a transferee from an owner who was himself responsible for creating a hardship is in no better position than his transferor. However, in the light of the undisputed findings by the City Council that a condominium-type apartment house conforming to M.G. District requirements has recently been constructed on land on the same street as the applicant's property, less than 1.000 feet away, with substantial similar topography, it would seem futile to remand the case for further proof. In addition, it should be noted that the record also shows that plans have been filed to build a conforming apartment house on the plot immediately abutting the applicant's property to the north. I think some comment on Matter of Wilcox v. Zoning Board of Appeals of City of Yonkers ( 17 N.Y.2d 249) is called for, since in that case the Court of Appeals, on seemingly similar property (No. 377 North Broadway, Yonkers, adjoining the subject property), reinstated a Special Term judgment sustaining a variance for a high density apartment house which had been granted by a zoning board (the Appellate Division had reversed the Special Term). That case squarely holds that a density increase involves an area variance rather than a use variance and hence is governed by the rule in Matter of Village of Bronxville v. Francis ( 1 N.Y.2d 839, affg. 1 A.D.2d 236) which excludes the need for showing hardship and requires only practical difficulty. There are two controlling factors which I believe distinguish Wilcox ( supra) from our case. In Wilcox the increased cost necessitated by the topography was shown to apply to a conforming building. It was further shown that such a building would not yield a reasonable return on the investment. Here we have no such proof. Even more importantly, in Wilcox the variance was granted while in this case the variance was denied. Since the court's function in these matters is only to ascertain if there was evidence in the record sufficient to sustain the decision ( Matter of Lemir Realty Corp. v. Larkin, 11 N.Y.2d 20), we may not review the determination for consistency or over-all fairness. Consequently, seemingly inconsistent decisions emanating from the same zoning board, due perhaps to differences too subtle to be readily discernible ( Matter of Larkin Co. v. Schwab, 242 N.Y. 330), will not be disturbed by the courts. Benjamin, J., concurs in the reversal of the judgment for the reasons stated by Mr. Justice Gulotta in his memorandum, but is of the opinion that the proceeding should be remitted to the Special Term for the taking of proof before it as to the economic consequences flowing from the use of the property under the present zoning, in contrast to the economic consequences flowing from the use of the property under the variance sought.