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NO RATIONAL BASIS FOR GRANTING USE VARIANCE TO CONSTRUCT CAR WASH; PARTY SEEKING VARIANCE IS ENTITLED TO REASONABLE RETURN BUT NOT THE MOST PROFITABLE RETURN.

The Second Department determined Supreme Court properly annulled a use variance granted to allow the construction of a car wash. The court explained the analytical criteria:

“To qualify for a use variance premised upon unnecessary hardship there must be a showing that (1) the property cannot yield a reasonable return if used only for permitted purposes as currently zoned, (2) the hardship resulted from unique characteristics of the property, (3) the proposed use would not alter the character of the neighborhood, and (4) the alleged hardship was not self-created” … .

With regard to the first element, “[i]t is well settled that a landowner who seeks a use variance must demonstrate factually, by dollars and cents proof, an inability to realize a reasonable return under existing permissible uses'” … . * * * The … parties did not … submit any actual financial information, such as the original purchase price of the property, the expenses and carrying costs of the property, the present value of the property, the taxes, the amount of any mortgages or other encumbrances, the amount of income presently realized, if any, or an estimate as to what a reasonable return on the entire property or any portion should be … .

Entitlement to a use variance is not established merely by proof that the proposed use would be more profitable than a smaller scaled project not requiring a use variance .. . The … parties are entitled to a reasonable return, not the most profitable return … . Thus, the Supreme Court properly found that the ZBA’s determination that the Splash parties established unnecessary hardship was arbitrary and capricious since it does not have a rational basis in the record … . Matter of DeFeo v Zoning Bd. of Appeals of Town of Bedford, 2016 NY Slip Op 02082, 2nd Dept 3-23-16

ZONING (USE VARIANCE, NO RATIONAL BASIS FOR GRANTING USE VARIANCE TO CONSTRUCT CAR WASH; PARTY SEEKING VARIANCE IS ENTITLED TO REASONABLE RETURN BUT NOT THE MOST PROFITABLE RETURN)/LAND USE (USE VARIANCE, NO RATIONAL BASIS FOR GRANTING USE VARIANCE TO CONSTRUCT CAR WASH; PARTY SEEKING VARIANCE IS ENTITLED TO REASONABLE RETURN BUT NOT THE MOST PROFITABLE RETURN)/USE VARIANCE (NO RATIONAL BASIS FOR GRANTING USE VARIANCE TO CONSTRUCT CAR WASH; PARTY SEEKING VARIANCE IS ENTITLED TO REASONABLE RETURN BUT NOT THE MOST PROFITABLE RETURN)

 

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