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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:

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“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)

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