Blumberg v. Siegel

87 A.D.2d 650, 448 N.Y.S.2d 522, 1982 N.Y. App. Div. LEXIS 15985

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 29, 1982
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Board of Zoning Appeals of the Town of North Hempstead, which, after a hearing, granted respondent Triad’s application for a use variance, petitioners appeal from a judgment of the Supreme Court, Nassau County (Murphy, J.), dated June 19, 1981, which dismissed the petition on the merits. Judgment reversed, on the law, without costs or disbursements, and petition granted to the extent that the determination is annulled and the matter is remitted to the respondent zoning board for further proceedings consistent herewith. In order for an applicant to be granted a use variance based on unnecessary hardship, he must establish (1) that the land in question cannot yield a reasonable return if used for any of the purposes allowed in that zone, (2) that his plight is due to unique circumstances and not to general neighborhood conditions which may reflect the unreasonableness of the zoning ordinance itself, and (3) that the use to be authorized by the variance will not alter the essential character of the locality (Matter of Village Bd. of Vil. of Fayetteville v Jarrold, 53 NY2d 254,263; Matter of Otto v Steinhilber, 282 NY 71, mot for rearg den 282 NY 681). In our opinion, Triad’s present proof is defective, for it does not show by the requisite “dollars and cents” evidence that the subject premises cannot yield a reasonable return if used for one of the purposes permitted within the zone in which it is located (see Matter of Village Bd. of Vil. of Fayetteville v Jarrold, supra; Matter of Otto v Steinhilber, supra; Matter of Forrest v Evershed, 7 NY2d 256). Accordingly, we remit the matter to the zoning board (see Stanley Park v Donovan, 34 AD2d 690). Mangano, J. P., Gulotta, Thompson and Brown, JJ., concur.