Opinion
October 22, 1965
Appeal from an order of the Supreme Court at Special Term, Albany County, entered on February 17, 1964, which directed respondents to issue a variance from the fence provisions contained in the Town of Bethlehem Zoning Ordinance. The pertinent part of said ordinance provides as follows: "Fences: Within the limits of a front [or side or rear] yard no fence or wall * * * shall be more than four feet high, unless the part above such height be no more than one-quarter solid." The petitioners constructed a six-foot solid fence around their swimming pool on their residence property in Elsmere. Admittedly said fence violates the fencing provisions of the zoning ordinance which was in effect when it was built but petitioners urge that the swimming pool creates a unique circumstance and a denial of the variance would cause them unnecessary hardship. We do not agree. A particular property must suffer a particular disadvantage before a variance can be allowed ( Matter of Hickox v. Griffin, 298 N.Y. 365). We find none here. In our view we do not have here the unique circumstance and hardship contemplated in Matter of Otto v. Steinhilber ( 282 N.Y. 71) and in Matter of Hickox v. Griffin ( supra). Nor do we find that in the circumstances of this case the Board of Appeals acted illegally, arbitrarily or capriciously. It is well settled that in arriving at its determination the court may not substitute its own judgment for the judgment of the board and such board judgment may not be set aside unless it clearly appears to be arbitrary or contrary to law ( People ex rel. Hudson-Harlem Val. Tit. Mtge. Co. v. Walker, 282 N.Y. 400; see Matter of Texaco v. Segur, 24 A.D.2d 692). Order reversed, on the law and the facts, and determination confirmed, without costs. Gibson, P.J., Herlihy, Reynolds, Aulisi and Hamm, JJ., concur.