
    Victory Boulevard Associates, Appellant, v City of New York et al., Respondents.
    Argued January 6, 1983;
    decided February 17, 1983
    
      APPEARANCES OF COUNSEL
    
      John J. Turuey for appellants.
    
      Frederick A. O. Schwarz, Jr., Corporation Counsel (Carolyn E. Demarest and Leonard Koerner of counsel), for City of New York and others, respondents.
    
      John C. Maloney, Jr., for Edward Destefanis, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court, Richmond County, reinstated.

In this article 78 proceeding, petitioner challenged the disapproval by the Board of Estimate of the City of New York of a zoning variance to permit the construction of a two-story commercial building in an area of Staten Island that was zoned residential. The Board of Estimate’s action overturned a grant of the variance by the city’s Board of Standards and Appeals (BSA).

Subdivision c of section 668 of the City Charter limits the Board of Estimate’s power to review the zoning determinations of the Board of Standards and Appeals to whether there was substantial evidence to support the BSA’s determination. In holding that the BSA’s grant of the variance was not supported by substantial evidence, the Board of Estimate concluded that petitioner failed to satisfy any of the five criteria required for a variance. A review of the record demonstrates, however, that petitioner established by substantial evidence that: there were unique physical characteristics to the lot that would create unnecessary hardship in complying with the zoning provisions; there would be no reasonable rate of return from the permitted use; a variance would not alter the essential character of the neighborhood; the hardship was not self-created; and the variance was the minimum necessary to afford relief. The Board of Estimate, therefore, erred in overturning the BSA’s determination, which was supported by substantial evidence.

Petitioner also challenges the city charter provisions authorizing Board of Estimate review of BSA determinations as unconstitutional. This claim has been examined and found to be wholly without merit.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg, Meyer and Simons concur in memorandum.

Order reversed, etc.  