You are here: / / NO SHOWING A REASONABLE RETURN ON THE PROPERTY WAS NOT POSSIBLE WITH A...

NO SHOWING A REASONABLE RETURN ON THE PROPERTY WAS NOT POSSIBLE WITH A CONFORMING USE, USE VARIANCE SHOULD NOT HAVE BEEN GRANTED.

The Fourth Department, reversing Supreme Court, determined the grant of a use variance by the zoning board of appeals (ZBA) should have been annulled. The parties seeking the variance (JCC and Lynn) did not present any proof that a reasonable return was not possible with a conforming use:

​

“No . . . use variance shall be granted without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship.” In order to prove such unnecessary hardship, the Zoning Ordinance requires the applicant to establish, among other things, that, for each and every permitted use under the zoning regulations for the particular district where the property is located, the applicant cannot realize a reasonable return and that the lack of return is substantial as demonstrated by competent financial evidence… . In other words, the applicant must demonstrate “by dollars and cents proof” that he or she cannot realize a reasonable return by any conforming use… . As part of that demonstration, the applicant must necessarily establish what a reasonable return for the property is … . An applicant’s failure to establish that he or she cannot realize a reasonable return by any conforming use requires denial of the use variance by the ZBA … .

Here, JCC and Lynn failed to present any evidence to the ZBA to satisfy the first requirement of unnecessary hardship, i.e., that they could not realize a reasonable return on the property by any conforming use. In the absence of such evidence in dollars and cents form, there is no rational basis for the ZBA’s finding that the premises would not yield a reasonable return in the absence of the requested use variance and, for that reason, we conclude that the ZBA’s determination must be annulled … . Leone v City of Jamestown Zoning Bd. of Appeals, 2017 NY Slip Op 04980, 4th Dept 6-16-17

 

ZONING (USE VARIANCE, NO SHOWING A REASONABLE RETURN ON THE PROPERTY WAS NOT POSSIBLE WITH A CONFORMING USE, USE VARIANCE SHOULD NOT HAVE BEEN GRANTED)/USE VARIANCE (ZONING, NO SHOWING A REASONABLE RETURN ON THE PROPERTY WAS NOT POSSIBLE WITH A CONFORMING USE, USE VARIANCE SHOULD NOT HAVE BEEN GRANTED)

You might also like
THE MAJORITY CONCLUDED PLAINTIFF IN THIS ASBESTOS-EXPOSURE CASE PROVED GENERAL AND SPECIFIC CAUSATION THROUGH EXPERT TESTIMONY; THE DISSENT ARGUED NEITHER CAUSATION ELEMENT WAS SUPPORTED BY SUFFICIENT EVIDENCE (FOURTH DEPT).
FAILURE TO TIMELY FILE THE OBJECTIONS TO THE SUPPORT MAGISTRATE’S DETERMINATION DID NOT WARRANT DISMISSAL OF THE OBJECTIONS (FOURTH DEPT).
Rule Requiring Submission of Order or Judgment for Signature within 60 Days Applies Only When Court Directs that the Proposed Order Be Settled or Submitted for Signature
IN A MED MAL ACTION PLAINTIFF’S EXPERT NEED NOT HAVE PRACTICED IN THE SAME SPECIALTY AS DEFENDANT DOCTOR TO BE QUALIFIED TO OFFER EXPERT OPINION EVIDENCE (FOURTH DEPT). ​
FAILURE TO HOLD A HEARING TO DETERMINE DEFENDANT’S MENTAL CONDITION AFTER TWO PSYCHIATRISTS FOUND DEFENDANT SUFFERED FROM A DANGEROUS MENTAL CONDITION WAS REVERSIBLE ERROR; ALTHOUGH THE ERROR WAS NOT PRESERVED, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT).
Business Not Liable for Slip and Fall on Abutting Icy Sidewalk/”Special Use” Doctrine Explained
Procedure for Invalidation of a Stipulation to the Record
A HANDGUN USED AS BLUDGEON IS A “DANGEROUS INSTRUMENT” WHICH WILL SUPPORT A BURGLARY FIRST DEGREE COUNT; COUNTY COURT SHOULD NOT HAVE REDUCED THE CHARGE TO BURGLARY SECOND (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

SOLAR AND WIND EASEMENTS, WHICH WERE RECORDED AFTER THE MORTGAGES, ARE SUBJECT... MOTION TO COMPEL DISCOVERY OF INFORMATION POSTED ON FACEBOOK SHOULD HAVE BEEN...