Opinion
July 5, 1961
In a proceeding under article 78 of the Civil Practice Act, to review and annul the determination of the Zoning Board of Appeals of the City of Long Beach, conditionally granting to the intervenor-respondent Gross a variance to use and occupy her one-family house as a two-family dwelling, petitioners, who are neighboring property owners, appeal from an order of the Supreme Court, Nassau County, entered August 31, 1960, which dismissed their petition on the merits and which confirmed the determination. The Zoning Ordinance of the City of Long Beach, effective July 8, 1930, placed the intervenor's property in a Residence A district, in which one-family houses are permitted, but not two-family dwellings. The one-family house in question was constructed in 1931. The intervenor Gross purchased the property in 1937. Thereafter, in 1946, in obedience to an appeal by the War Department to provide additional housing accommodations for the returning veterans, the intervenor, at a cost of some $7,000, converted the house to a two-family dwelling, consisting of ten and a half rooms, in accordance with plans approved by the city's Building Department; and the house has been so occupied since, although without a variance. In January, 1960, the intervenor applied to the local Zoning Board for and was granted the conditional variance. Five of the immediate neighbors consented to the application. The board's determination was based on findings of undue hardship and practical difficulty in that, among other reasons, the house as converted is presently too large for occupancy by one family and the upkeep, not including depreciation, exceeds $2,500 a year. In confirming the board's determination and dismissing the petition of the neighboring property owners, Special Term held that under the proof established, it may not be said that this determination was unreasonable, arbitrary or capricious. Order affirmed, without costs. In our opinion, the findings of the board are sustained by the evidence. The intervenor's house was converted from a one to a two-family dwelling in 1946 pursuant to an appeal by governmental authority and permission granted by the Building Department of the City of Long Beach, and at substantial cost to the intervenor. No objection to the two-family dwelling was made by anyone for 14 years. The cost of restoring the house for use as a one-family house is prohibitive. These facts are sufficient to show a hardship uniquely applicable to this property and to distinguish Matter of Asch v. Gillispie ( 14 A.D.2d 543).
The board may permit a two-family house in a one-family district only upon a showing of hardship uniquely applicable to the subject property ( Matter of Otto v. Steinhilber, 282 N.Y. 71; Matter of Hickox v. Griffin, 298 N.Y. 365). The proof in this case is directed to a change of character of the neighborhood, not to a situation unique to this parcel of land. Hardship which is common to a whole neighborhood must be remedied by a change in the ordinance, not through a piecemeal variance by a zoning board of appeals ( Matter of Clark v. Board of Zoning Appeals, 301 N.Y. 86). The hardship here, if any, does not peculiarly affect the subject land and building. It is hardship arising because of the peculiar family situation of those in occupancy.