Opinion
January 14, 1971
Appeal from the Erie Special Term.
Present — Goldman, P.J., Del Vecchio, Witmer and Moule, JJ.
Judgment unanimously affirmed, without costs. Memorandum: Petitioner owned premises fronting on West Quaker Street in the Town of Orchard Park on which it desires to erect a car wash, a permitted usage under the Town's Zoning Ordinances. Petitioner filed an application for a building permit which showed full compliance with the zoning ordinances including a 75-foot setback requirement from West Quaker Street, the closest highway. A permit was issued on July 2, 1969. It required petitioner to submit a survey to the building inspector as soon as the footings were completed showing the exact location of the building and also provided that no further work should be done after the footings were put in until the building inspector approved the survey. The building inspector inspected the footings on July 15, 1969 but petitioner did not submit a survey and had completed the foundation and the walls on August 6, 1969 when the building inspector notified it to stop construction and submit a survey. Petitioner submitted a survey on August 11, 1969 which showed that its building was 46 feet rather than 75 feet from the nearest highway. However, it showed that there was an embankment between it and the highway and that the driveway from the car wash to the highway was 100 feet long. The board held a public hearing August 19, 1969 on petitioner's application for a variance and although no one appeared in opposition to the application, it was denied by a vote of two to two. On September 16, 1969 a rehearing was held. Again there was no opposition to the application, but it resulted in a denial, although the vote was four in favor of the variance and one opposed, since under subdivision 6 of section 267 Town of the Town Law, unanimous consent was required to grant the variance upon a rehearing. Petitioner commenced this proceeding to review the board's decision on the ground that the single vote denying the variance was arbitrary and capricious. The board defended its determination, not on the theory that restricting petitioner's property would serve some valid purpose for which the setback requirement was designed, but on the sole ground that petitioner's difficulty was self-created by its departure from its plot plan. Special Term annulled the determination of the board on the ground that "the variance he [petitioner] seeks would in no way vary the neighborhood, or affect neighboring property owners. The denial of the variance would not further the purposes for which the ordinance was designed and adopted." As stated in Banos v. Colborn ( 35 A.D.2d 281), one who affirmatively creates a hardship is estopped from claiming such hardship in seeking a variance from zoning requirements and a court should not substitute its judgment for that of the Zoning Board of Appeals. In Banos, however, the petitioner acted intentionally or recklessly in proceeding to erect a building which was unreasonably detrimental to the adjoining and neighboring properties, ignoring the conditions of the building permit. Unlike in Banos, the variance petitioner sought will not adversely affect the neighborhood, no one objected to it, and there is no zoning purpose to be served by a denial of the variance.