Opinion
January 18, 1982
In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Appeals of the Incorporated Village of Lindenhurst, dated July 9, 1980, which denied petitioner's application for a use variance, the appeal is from a judgment of the Supreme Court, Westchester County (Wood, J.), dated May 11, 1981, which dismissed the petition and confirmed the determination. Judgment affirmed, without costs or disbursements. The petitioner and his wife are the owners of a house in which he also maintains his chiropractic office. The Lindenhurst zoning ordinance permits a professional office as an accessory use provided the owner-professional resides at the same premises. After several years of working and residing at the same premises, the petitioner applied for a use variance to permit him to lease the residential portion of the premises, while still maintaining his office in the other portion of the house. At the hearing on his application petitioner testified that his family had outgrown the home and that he was concerned about the safety of his two children. He failed, however, to demonstrate unnecessary hardship or that the property could not yield a reasonable return as presently zoned (see Matter of Otto v. Steinhilber, 282 N.Y. 71; Matter of Crossroads Recreation v. Broz, 4 N.Y.2d 39; Matter of Everhart v. Johnston, 30 A.D.2d 608). Furthermore, if any hardship existed it was self-created because petitioner purchased the premises while aware of the restriction in the zoning ordinance (see Matter of Everhart v. Johnston, supra; Matter of Asch v Gillispie, 14 A.D.2d 543). "Even if [petitioner] * * * did not have a prohibited use in mind when he purchased the property * * * the then existence of a restrictive zoning ordinance is more controlling than the subjective intent of the purchaser" (see Matter of Kenyon v. Quinones, 43 A.D.2d 125, 127). In addition, the fact that similar variances were granted to other residents in the vicinity does not mean that petitioner's application was arbitrarily denied (see Matter of Lemir Realty Corp. v. Larkin, 11 N.Y.2d 20, 25; Matter of Crossroads Recreation v. Broz, 4 N.Y.2d 39, supra; Matter of Larkin Co. v. Schwab, 242 N.Y. 330, 335). We have considered petitioner's other argument and find it to be without merit. Lazer, J.P., Gibbons, Cohalan and Bracken, JJ., concur.