You are here: / / THE PROPERTY OWNERS DID NOT DEMONSTRATE THEY COULD NOT REALIZE A REASONABLE...
,

THE PROPERTY OWNERS DID NOT DEMONSTRATE THEY COULD NOT REALIZE A REASONABLE RETURN ON THE PROPERTY ABSENT THE USE VARIANCE ALLOWING CONSTRUCTION OF A “DOLLAR STORE;” THE USE VARIANCE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the property owners seeking a use variance to build a “Dollar Store” did not demonstrate the existing zoning regulations imposed unnecessary hardship on them. The proof presented to the Zoning Board of Appeals (ZBA) did not demonstrate the owners inability to realize a reasonable return for the property absent a use variance:

… [T]here is no evidence in the record establishing whether respondents could realize a reasonable return on the parcel if it were used for any other conforming use. Indeed, respondents’ expert did not discuss any possible use of the property other than as vacant land. Thus, inasmuch as respondents’ expert failed to discuss the possible return with respect to all uses permitted within the zoning district, respondents failed to meet their burden of demonstrating that they cannot realize a reasonable return on the property without the requested use variance … .

… The fact that respondents’ application for a use variance was limited to the two-acre parcel is “of no moment; the inquiry as to an inability to realize a reasonable return may not be segmented to examine less than all of an owner’s property rights subject to a regulatory regime” … . The expert’s failure to address respondents’ ability to obtain a reasonable return on the remaining parts of the parcel, or on other permissible uses within the zoning district, is fatal to the application. Thus, the determination is not supported by substantial evidence … . Matter of Dean v Town of Poland Zoning Bd. of Appeals, 2020 NY Slip Op 04242, Fourth Dept 7-24-20

 

You might also like
THE LACK-OF-STANDING DEFENSE WAS NOT RAISED IN THE ANSWER OR THE PREANSWER MOTION TO DISMISS; IT IS NOT A JURISDICTIONAL DEFECT; THEREFORE THE JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE ACTION ON THAT GROUND (FOURTH DEPT).
SUPREME COURT MUST RULE ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL BEFORE THE APPELLATE COURT CAN CONSIDER THE ISSUE, MATTER REMITTED FOR A RULING; THE SENTENCE IN THIS DWI CASE WAS ILLEGAL (FOURTH DEPT).
ALTHOUGH FATHER FAILED TO COOPERATE WITH THE PLACEMENT OF HIS CHILDREN WHILE INCARCERATED; HE MADE SERIOUS EFFORTS TO RECONNECT WITH THE CHILDREN AFTER HIS RELEASE; FAMILY COURT SHOULD HAVE GRANTED A SUSPENDED JUDGMENT RATHER THAN PERMANENTLY TERMINATING HIS PARENTAL RIGHTS (FOURTH DEPT).
TEACHER’S LAWSUIT AGAINST STUDENTS ALLEGED INTENTIONAL, NOT NEGLIGENT, CONDUCT AND WAS THEREFORE TIME-BARRED (FOURTH DEPT).
Court’s Failure to Elicit Unequivocal Declarations Jurors Could Set Aside their Biases Required Reversal
Statement by Reporter About a Judicial Proceeding Entitled to Absolute Privilege
Unlawful Imprisonment Charge Merged With Assault Charge
FAILURE TO IDENTIFY A SPECIFIC VIOLATION OF THE ELECTION LAW OR PARTY RULE REQUIRED THE DISMISSAL OF THE PETITION, JUDICIAL INTERVENTION NOT WARRANTED (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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

MOTIONS FOR LEAVE TO FILE LATE NOTICES OF CLAIM IN THIS “POLLUTION ESCAPING... 42 USC 1983 CAUSES OF ACTION AGAINST THE SHERIFF AND UNDERSHERIFF IN THEIR OFFICIAL...