Geampa v. Walck

222 A.D.2d 1072, 636 N.Y.S.2d 515, 1995 N.Y. App. Div. LEXIS 14141

Opinion

—Order unanimously reversed on the law without costs and petition dismissed. Memorandum: Supreme Court erred in granting the petition to set aside the Zoning Board of Appeals’ denial of petitioners’ application for a use variance to allow a dog kennel at petitioners’ residence. The determination of the Zoning Board of Appeals is entitled to great deference and must be sustained if it has a rational basis and is supported by substantial evidence (Matter of Cohen v Hahn, 155 AD2d 969, 970). To obtain a use variance, a petitioner "must demonstrate factually, by dollars and cents proof, an inability to realize a reasonable return under existing permissible uses” (Matter of Village Bd. v Jarrold, 53 NY2d 254, 256; see also, Matter of Cohen v Hahn, supra). Petitioners failed to show that they could not realize a reasonable rate of return by the use of their property as a residence, without a dog kennel. Thus, the Zoning Board of Appeals properly denied their application. (Appeal from Order of Supreme Court, Niagara County, Mintz, J. — Reargument.) Present — Pine, J. P., Lawton, Wesley,.Callahan and Davis, JJ.