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Matter of Marchese v. Koch

Appellate Division of the Supreme Court of New York, Second Department
May 12, 1986
120 A.D.2d 590 (N.Y. App. Div. 1986)

Opinion

May 12, 1986

Appeal from the Supreme Court, Richmond County (McBrien, J.).


Judgment reversed, on the law, with costs, determination of the Board of Estimate confirmed, and proceeding dismissed on the merits.

This proceeding arose from an application by the petitioner for a zoning variance in order to operate an automobile repair shop in a residential district of Staten Island. The Board of Standards and Appeals, after imposing various restrictions on the petitioner's use of the property, granted the variance but its determination was disapproved by the Board of Estimate. Special Term annulled the Board of Estimate's determination because it failed to take action within 30 days after accepting jurisdiction of the matter as required by New York City Charter § 668 (c).

Special Term erred when it determined that the Board of Estimate's failure to act in a timely manner caused it to lose jurisdiction of the matter. The time provision in New York City Charter § 668 (c) is directory only (see, Matter of King v Carey, 57 N.Y.2d 505, 513; Union Free School Dist. No. 6 v New York State Human Rights Appeal Bd., 35 N.Y.2d 371; Matter of Rochester Gas Elec. Corp. v Maltbie, 272 App. Div. 162; Fallon v Hattemer, 229 App. Div. 397).

The Board of Estimate's determination disapproving the variance was correct. The following findings required by New York City Zoning Resolution § 72-21 were not supported by substantial evidence before the Board of Standards and Appeals: (a) that there are unique physical conditions peculiar to and inherent in the particular zoning lot which cause practical difficulties or unnecessary hardship to arise in strictly complying with the Zoning Resolution; (b) that, because of such physical conditions, there is no reasonable possibility that development in conformity with the resolution will bring a reasonable return; (c) that the hardship was not self-created, and (d) that the variance, if granted, is the minimum necessary to afford relief.

The petitioner argues that his lot is not suitable for residential use because of its large size, unusual depth, trapezoidal shape, and proximity to another lot which is being used for commercial purposes. However, the petitioner presented no evidence to show how these conditions prevent him from being able to construct residences or obtain a reasonable return from such a use. The evidence in the record shows that many lots in the area are of trapezoidal shape and are close to a commercial property but are nevertheless used for residential purposes. There is nothing about a lot's large size which causes it to be inherently unsuitable for residential use. The petitioner's evidence on the anticipated return of various proposed uses shows no more than that commercial use is more lucrative than residential development in the neighborhood generally. This does not justify a variance (see, Matter of Douglaston Civic Assn. v Klein, 51 N.Y.2d 963). Furthermore, the petitioner presented no evidence of a bona fide attempt to sell the property (see, Matter of Forrest v Evershed, 7 N.Y.2d 256; Matter of Shiner v Board of Estimate, 95 A.D.2d 831). To the extent that the petitioner has encountered what he deems unnecessary hardship, the hardship was self-created rather than a result of the lot's condition (see, Matter of Cowan v Kern, 41 N.Y.2d 591). Mollen, P.J., Lazer, Mangano and Thompson, JJ., concur.


Summaries of

Matter of Marchese v. Koch

Appellate Division of the Supreme Court of New York, Second Department
May 12, 1986
120 A.D.2d 590 (N.Y. App. Div. 1986)
Case details for

Matter of Marchese v. Koch

Case Details

Full title:In the Matter of SALVATORE MARCHESE, Respondent, v. EDWARD I. KOCH, as…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 12, 1986

Citations

120 A.D.2d 590 (N.Y. App. Div. 1986)

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