45 N.Y.2d 105 | NY | 1978
OPINION OF THE COURT
Respondent is the owner of a corner lot which measures 100 feet by 47 feet. Since the local zoning ordinances mandate a 50-foot frontage on all streets in the area, he was required to obtain an area variance in order to use this residential property in any reasonable manner. The property was originally part of a larger plot which was purchased in 1970 by a corporation in which respondent has a substantial interest. The corporation divided the plot into three lots, of which respondent’s is one. The other two meet all zoning requirements, and have since been sold to third parties. For the corporation to have divided the property in such a way that all three lots would have met all requirements, it would have been necessary to demolish an existing residence located to one side of what is now the middle lot.
Respondent now seeks to erect a 20-foot-wide residence
That a landowner’s difficulty is in a sense self-created is certainly a factor to be taken into account in considering an application for an area variance, although it is less significant a consideration in such cases than in those involving use variances (2 Anderson, New York Zoning Law and Practice [2d ed], § 18.43). It is not, moreover, the determinative factor, and we have in the past upheld the authority of a board to grant an area variance in situations involving self-created hardships (Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309). A finding of self-created hardship normally should not in and of itself justify denial of an application for an area variance (see, generally, Matter of National Merritt v Weist, 41 NY2d 438; Matter of Craig v Zoning Bd. of Appeals of City of Yonkers, 41 NY2d 832; 2 Anderson, New York Zoning Law and Practice [2d ed], § 18.43). The basic inquiry at all times is whether strict application of the ordinance in a given case will serve a valid public purpose which outweighs the injury to the property owner (see Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449, 455-456).
Here, the public purpose purportedly served by denial of the variance was an aesthetic one. The board concluded that "a dwelling having a width of only 20 feet would not be aesthetically desirable, nor could it as a practical matter be a functional dwelling * * * This type of a home with a bowling alley appearance would * * * tend to depreciate the value of the other dwellings in the area and would adversely affect the aesthetic character of the area. In its efforts to obtain the maximum financial return from this venture, the developer has created an aesthetic abomination. It is the opinion of this Board that such a practice should not be condoned”.
As it is, however, we need not reach the reasonableness of that determination. Although aesthetic considerations are indeed a valid concern of land use regulations, in this case the Zoning Board of Appeals was without power to deny an area variance on aesthetic grounds. The criteria to be applied by a zoning board must in the first instance be delineated by local law, for such a body may exercise only that authority properly delegated to it (2 Anderson, New York Zoning Law and Practice [2d ed], § 18.62). In the present case, the record is bare of any indication that appellant is authorized to apply aesthetics as a criterion in considering applications for area variances. Absent specific authorization which provides sufficient guidance to prevent complete arbitrariness, a Zoning Board of Appeals may not deny an area variance for aesthetic reasons alone (see, generally, 2 Anderson, New York Zoning Law and Practice [2d ed], § 18.62; see, also, Matter of Tandem Holding Corp. v Board of Zoning Appeals of Town of Hempstead, 43 NY2d 801, 802). The allegedly applicable village ordinance, section 16-23, does not supply the requisite authority or ingredient for a denial of the variance.
Accordingly, the order appealed from should be affirmed, with costs.
Order affirmed.