CEMETERY’S APPLICATION FOR A USE VARIANCE TO CONSTRUCT A CREMATORY SHOULD NOT HAVE BEEN DENIED BY THE ZONING BOARD, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department determined Supreme Court had properly annulled the zoning board’s denial a cemetery’s application for a use variance to allow the construction of a crematory:

“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'” … . … [T]here was no rational basis for the Board’s finding that the Cemetery was not experiencing a financial hardship.

As to the third element, the Board improperly determined that the 1,800-square-foot crematory would alter the essential character of the neighborhood. The unrebutted evidence demonstrated that the crematory would be shielded from view, would be odorless and not emit visible smoke, and had passed all necessary emissions and air quality testing. Matter of White Plains Rural Cemetery Assn. v City of White Plains, 2019 NY Slip Op 00606, Second Dept 1-30-19