Bausch v. Minsker

197 A.D.2d 837, 602 N.Y.S.2d 248, 1993 N.Y. App. Div. LEXIS 9178

Opinion

—Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly dismissed petitioner’s CPLR article 78 proceeding, which sought to annul respondents’ determination denying petitioner’s application for a use variance. Petitioner failed to establish that no reasonable return could be achieved under a permitted use of the property and thus failed to meet the requisite showing of unnecessary hardship (Matter of Village Bd. v Jarrold, 53 NY2d 254, 257; Matter of Otto v Steinhilber, 282 NY 71, 76). The bare conclusory testimony of witnesses that the property could not yield a reasonable return was insufficient to justify the grant of a use variance (Matter of Village Bd. v Jarrold, supra, at 259). We conclude that respondents’ determination was supported by substantial evidence. (Appeal from Judgment of Supreme Court, Erie County, Whelan, J.—Article 78.) Present—Callahan, J. P., Lawton, Fallon, Doerr and Boehm, JJ.