Opinion
June 24, 1971
Appeal from a judgment of the Supreme Court, entered in Broome County, which dismissed an application in a proceeding brought pursuant to CPLR article 78 to annul a determination denying a request for a variance and alternatively seeking a judgment that a variance is not necessary. Appellant, the owner of property in the Village of Endicott, replaced a canvas awning projecting toward the front property line with a mansard roof, constructed of wood and of approximately the same dimensions. During this construction appellant's president was advised that a variance was necessary to the front yard set back requirement applicable to the property under the village zoning ordinance. Appellant applied, its request for a variance was denied by the respondents, and the instant proceeding ensued. The trial court upheld the respondents' decision concluding that the "Petitioner's action in replacing the canvas awning with a wooden structure was more than simply the continuation of a non-conforming use as authorized by the Endicott Zoning Ordinance", that the construction clearly constituted a violation of the zoning ordinance and thus required a variance, and finally that appellant could not here justify a claim of hardship or practical difficulty because "the difficulty entailed in removing the roof was self created". We find no basis to disturb the well-reasoned opinion of the trial court upholding the respondents' decision and accordingly its judgment must be affirmed. Matter of Carrow Care Corp. v. Holmes ( 36 A.D.2d 571), relied on by appellant, is not factually apposite to the present case (cf. Matter of Sherman v. Gustafson, 28 A.D.2d 1082, affd. 22 N.Y.2d 793). Judgment affirmed, with costs. Reynolds, J.P., Greenblott, Cooke, Sweeney and Simons, JJ., concur.