Opinion
April 17, 1989
Appeal from the Supreme Court, Suffolk County (Lama, J.).
Ordered that the judgment is reversed insofar as appealed from, with costs, that branch of the petition which sought review of the determination denying an area variance for an existing tennis court is dismissed, and that portion of the determination which denied the petitioners' application for an area variance with respect to the tennis court is confirmed.
The petitioners are property owners who improved property in the Town of Southampton by building a tennis court. A plot plan approved by the town showed the tennis court to be in compliance with the 30-foot side-yard setback requirement contained in the Building Zone Ordinance of the Town of Southampton. However, when the tennis court was completed it encroached into the side-yard setback by 10 feet. The encroachment was not discovered until a survey was completed for the purpose of completing an application for a certificate of occupancy. The petitioners sought an area variance which was denied by the appellants.
The decision of the Zoning Board of Appeals denying the petitioners' application for an area variance for the tennis court is supported by substantial evidence and is not illegal, arbitrary or an abuse of discretion (see, Matter of Fuhst v Foley, 45 N.Y.2d 441). The petitioners have failed to carry their burden of establishing that strict compliance with the zoning law would cause practical difficulties rendering the property unusable. That they will suffer some economic loss is not to be considered (see, Matter of Paniccia v. Volker, 133 A.D.2d 404; Matter of CDK Rest. v. Krucklin, 118 A.D.2d 851, 852). Denial of the variance does not deprive the petitioners of the ability to utilize the property without coming into conflict with the zoning law. Indeed, the original plan is in full compliance with the ordinance (see, Matter of Fuhst v. Foley, supra, at 445; Human Dev. Servs. v. Zoning Bd. of Appeals, 110 A.D.2d 135, 138-140, affd 67 N.Y.2d 702; Matter of Paniccia v. Volker, supra, at 406). The encroachment into the side yard was admittedly created by the negligence of the contractor and subcontractor. Thus, any difficulty is self-created. The petitioners correctly assert that self-creation does not in and of itself justify a denial of an area variance application (Matter of De Sena v. Board of Zoning Appeals, 45 N.Y.2d 105, 108; see, Human Dev. Servs. v. Zoning Bd. of Appeals, 67 N.Y.2d 702, 706, supra); however, this factor is a significant element militating against the application (see, Matter of Paniccia v. Volker, supra, at 406-407).
Accordingly, upon due consideration of all the factors present in the case at bar, we reinstate the determination of the Zoning Board of Appeals denying the petitioners' application for a variance from the minimum side-yard setback requirement with respect to the tennis court. Thompson, J.P., Lawrence, Kunzeman and Rubin, JJ., concur.