(dissenting). I dissent and would reverse the judgment, grant the petition and annul the determination of the Board of Standards and Appeals which granted a variance to the intervenor for the construction of indoor tennis courts.
Although I agree that the subject property is entitled to some relief from the residential restrictions which presently encumber it, I must, nevertheless, vote to disapprove the variance for two reasons.
First, a variance is’ not the appropriate legal remedy for the subject parcel because its "uniqueness” has not been established in accordance with the standards set forth in Matter of Otto v Steinhilber (282 NY 71), which are incorporated in section 72-21 of the New York City Zoning Resolution. Second, even if the parcel is "unique”, several other prerequisite factual findings for the granting of a use variance have not been established on the sparse record before this court.
*63The subject property is located in an Rl-2 (one-family detached) zone, the most restricted form of residential district, as a result of a zoning ordinance passed by the New York City Board of Estimate and the City Planning Commission in 1961.
This property is located on the south side of Northern Boulevard between 232nd and 233rd Streets, which are mapped but nonexistent streets. The record establishes that this property is undeveloped and set back on the south side of Northern Boulevard 72 feet on the east and about 110 feet on the west. The plot runs 200 feet parallel with Northern Boulevard and has a depth of 300 feet on the westerly side and 402 feet on the easterly side. This plot is surrounded on three sides by other unimproved and uncultivated swampy land.
Section 72-21 of the Zoning Resolution of the City of New York incorporates the requirements for a use variance as set forth by the Court of Appeals decisions in Matter of Otto v Steinhilber (282 NY 71, supra), and Dauernheim, Inc. v Town Bd. of Town of Hempstead (33 NY2d 468).
In Matter of Otto v Steinhilber (supra, p 76) the court stated that in seeking a use variance, the applicant must show that "(1) the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone; (2) that the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself; and (3) that the use to be authorized by the variance will not alter the essential character of the locality.”
Specifically, section 72-21 of the Zoning Resolution provides, among other things, as follows:
"Findings Required for Variances
"When in the course of enforcement of this resolution, any officer from whom an appeal may be taken under the provisions of Section 72-11 (General Provisions) has applied or interpreted a provision of this resolution, and there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such provision, the Board may, in accordance with the requirements set forth in this Section, vary or modify the provision so that the spirit of the law shall be observed, public safety secured, and substantial justice done.
"Where it is alleged that there are practical difficulties or *64unnecessary hardship, the Board may grant a variance in the application of the provisions of this resolution in the specific case, provided that as a condition to the grant of any such variance, the Board shall make each and every one of the following findings:
"(a) That there are unique physical conditions, including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to and inherent in the particular zoning lot; and that, as a result of such unique physical conditions, practical difficulties or unnecessary hardship arise in complying strictly with the use or bulk provisions of the resolution; and that the alleged practical difficulties or unnecessary hardship are not due to circumstances created generally by the strict application of such provisions in the neighborhood or district in which the zoning lot is located.
"(b) That because of such physical conditions there is no reasonable possibility that the development of the zoning lot in strict conformity with the provisions of this resolution will bring a reasonable return, and that the grant of a variance is therefore necessary to enable the owner to realize a reasonable return from such zoning lot. This finding shall not be required for the granting of a variance to a non-profit organization.
"(c) that the variance, if granted, will not alter the essential character of the neighborhood or district in which the zoning lot is located; will not substantially impair the appropriate use or development of adjacent property; and will not be detrimental to the public welfare.
"(d) That the practical difficulties or unnecessary hardship claimed as a ground for a variance have not been created by the owner or by a predecessor in title. Where all other required findings are made, the purchase of a zoning lot subject to the restrictions sought to be varied shall not itself constitute a self-created hardship.
"(e) That within the intent and purpose of this resolution the variance, if granted, is the minimum variance necessary to afford relief; and to this end, the Board may permit a lesser variance than that applied for.”
From my review of this record, there is simply no basis for a finding of uniqueness. The record clearly indicates that the subject parcel is surrounded on the east and west by a large land area which is unimproved. This unimproved area is in *65precisely the same proximity to Northern Boulevard and the commercial uses prevalent thereon as is the subject parcel. In addition, this surrounding unimproved area shares the same topography, i.e., swampy soil condition, as the subject parcel. Accordingly, there is nothing unique about this parcel since all of the problems which afflict it are shared by all of the unimproved land in this area which is of substantial size.
A claimed confiscation of value resulting in harship with respect to a parcel of property involved in an application for a variance may result from the uses to which properties in the immediate neighborhood of the subject parcel have been put, or from the general deterioration of the neighborhood, either of which give rise to a claim that the subject property has been rendered unmarketable or unusable for the purposes to which it is restricted by the ordinance. However, where this claim is made "it is seldom that such situation exists with respect only to the property which is the subject of the application. Usually the same undesirable neighborhood uses or deterioration affect other properties in the same area” (3 Rathkopf, Law of Zoning and Planning [4th ed], p 45-3). In this situation, a use variance cannot be granted. As stated in Rathkopf: "Difficulties or hardships shared with others go to the reasonableness of the ordinance generally and will not support a variance as to one parcel upon the ground of hardship.”
It is the uniqueness factor which differentiates an application for a use variance from a declaratory judgment action challenging a zoning classification. When the claimed difficulties are not unique to the particular parcel, the property owner’s remedy is to apply to the legislative body for rezoning, and if unsuccessful to institute a declaratory judgment action challenging the zoning as unreasonable as to all parcels in the use district similarly situated and affected (Matter of Otto v Steinhilber, 282 NY 71, supra).
The prescription against allowing a use variance to a particular parcel where the difficulty is shared with other property owners, is in harmony with the principle of division of powers between the appropriate legislative authority and the Zoning Board of Appeals which is an administrative body.
The power to zone property is vested exclusively within the jurisdiction and authority of the appropriate legislative body. Indeed, following a successful declaratory judgment action challenging a zoning classification, the courts do not take it *66upon themselves to rezone the property involved. Rather, it is well established that following a successful court challenge to a zoning classification, the property owner must seek legislative approval of a specific use through a rezoning of the property.
A use variance on the other hand, when granted, confers the benefit of the use directly and immediately and by-passes the need for any legislative action by the elected body entrusted with the zoning authority. If use variances were granted to property owners whose parcels contained difficulties shared by others, the net result would be that all the other similarly situated owners would also be entitled to use variances. Under those circumstances, an effective rezoning would be accomplished by the board, which would constitute an usurpation of legislative powers (see Matter of Clark v Board of Zoning Appeals of Town of Hempstead, 301 NY 86; Ward v Zoning Bd. of Appeals of Town of Hartford, 153 Conn 141, 145). As the Court of Appeals stated in Matter of Levy v Board of Stds. & Appeals of City of N. Y. (267 NY 347, 352-353): "No power has been conferred upon the Board of Standards and Appeals to review the legislative general rules regulating the use of land * * * The Board does not exercise legislative powers * * * Its function is primarily administrative.”
By approving this use variance for the subject premises without a demonstration of uniqueness, Special Term and the majority are effectively conferring upon the Board of Standards and Appeals an unauthorized power to rezone — a power which the courts have repeatedly and unequivocally refused to exercise in those cases where zoning restrictions have been judicially declared unconstitutional because of their confiscatory and discriminatory effects upon property. By permitting this use variance to stand, this court is indorsing direct resort to the Board of Standards and Appeals and the circumvention of the rezoning or declaratory judgment approach, and is creating an unfortunate precedent for comparable relief for the rest of the unimproved land in the area. In addition, by legalizing this particular commercial use, this court is permitting the property owner to decide which commercial use is most beneficial for the property and conferring upon him a benefit not shared by any other property owner.
Quite apart from the fact that this property is not unique and, therefore, not eligible for a variance, the findings re*67quired by subdivisions (b) and (e) of section 72-21 of the Zoning Resolution are not sustained by substantial evidence.
As a result of pursuing this appeal by the appendix method, the record is not as complete as it should be.
The issue of whether the owner may obtain a reasonable return by utilizing the land for any of the purposes permitted by the Zoning Resolution either as a matter of right or by special permit use, poses a critical question which cannot be resolved on this record. The only evidence with respect to the value of the land was contained in an exhibit which purported to show the value for residential plots pursuant to several alternative residential plans. On the basis of that exhibit, the value of the land exceeded $500,000. On the basis of such a value, I have no doubt that the residential utilization of this land could not produce a reasonable return even without the additional expenses required for piling because of the swampy conditions. However, in the absence of any other explanation in the record as to how this value was arrived at, it is not unreasonable to infer that it reflects the purchase price and/ or total costs to date of this property to its owner. If such be the case, this use variance cannot be sustained because any hardship to the property owner must be considered as being self-created in accordance with the principle enunciated by the Court of Appeals in Matter of Douglaston Civic Assn. v Galvin (36 NY2d 1).
I am well aware that subdivision (d) of section 72-21 of the Zoning Resolution of the City of New York, provides that "purchase of a zoning lot subject to the restrictions sought to be varied shall not itself constitute a self-created hardship.” However, that provision is only speaking of those situations where the property owner paid a purchase price commensurate with the value of the property as presently zoned.
I would find it most difficult to believe that any one would have paid a price comparable to the indicated value of this land with the intention of using it for residential purposes. It is more likely that this value reflects a purchase price that was paid by the owner with the expectation of either obtaining a change of zoning or a use variance. Therefore, in the case at bar, the value of the property as claimed by the property owner as a basis for computing a reasonable return, is obviously the value that the parcel would have had if a zoning change or use variance were granted.
The Court of Appeals in Matter of Douglaston Civic Assn. v *68Galvin (36 NY2d 1, supra), has emphatically eliminated this construction of the concept of value of the property for the purposes of determining the possibility of reasonable return. In that case the court stated (p 9): "We would merely add that in affirming the decision below we do not intend to imply our approval of the Appellate Division’s statement that the board acted correctly 'in apparently concluding that a projected return of income, for a parcel for which a variance is sought, may be based on present value, rather than its original cost.’ (43 A D 2d 739, 740.) While present value most often will be the relevant basis from which the rate of return is to be calculated, it is important that the 'present value’ used be the value of parcel as presently zoned, and not the value that the parcel would have if the variance were granted. While the record does not speak to this point, we suspect that the $121,000 figure here represents the value the parcel would have if granted the variance.” (See, also, Matter of Clark v Board of Zoning Appeals of Town of Hempstead, 301 NY 86, supra; Matter of Gro, 440 Pa 552.)
Another problem is presented by the fact that, on this record, it cannot be determined that the utilization of this property for outdoor tennis courts would not have provided a reasonable return for thé owner. The Zoning Resolution permits, as a special use, outdoor tennis courts. In contrast to a use variance, the inclusion of a special use in the ordinance as one which is permitted under certain conditions "is equivalent to a legislative finding that the prescribed use is one which is in harmony with the other uses permitted in this district” (2 Rathkopf, Law of Zoning and Planning [3d ed], p 54-5). Until it has been established, and I submit that it has not been established on this record, that the property cannot provide a reasonable return by utilizing it for outdoor tennis courts, the variance for indoor tennis courts should not be approved.
Finally, the board’s finding that the variance granted for the indoor tennis courts is the minimum variance necessary to afford relief, cannot be sustained. Although a use variance was granted for a "one story * * * indoor tennis center”, the property owner admits that this variance permits a 35-foot elevation for the tennis center and is "tantamount to two and a half stories according to the Building Department”.
Accordingly, the petition should be granted and the board’s determination granting the use variance should be annulled.