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Applicant Fails to Provide Dollars and Cents Proof for Use Variance

The Appellate Division affirmed the reversal of the grant of a use variance for failure to provide evidence of entitlement to the variance. In the Matter of DeFeo v. Zoning Board of Appeals of the Town of Bedford, the Court found that the applicant had failed to provide any financial information to support the claim for a use variance. Once the use variance was overturned,the other approvals for the area variances, site plan and special permit were likewise vacated.

In addressing the deficiencies in the record with respect to the use variance, the Court noted to obtain “‘…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…'”

The Court cited the requirement that a party seeking a use variance must provide “dollars and cents proof” that the property will not yield a reasonable return for any permitted use.  The applicant submitted evidence that the residential portion of the property (the property is partially in a residential zone and partially in a commercial zone), could not be developed due to the topography of the site. In addition, an appraisal was submitted indicating that without the residential portion of the site being included in the proposed commercial development, the potential development value of the site would be significantly reduced under various scenarios. However, the Court held the applicant:

“…did not, however, submit any actual financial information, such as the original purchase price of the property, the expenses and carrying costs of the property, the present value of the property, the taxes, the amount of any mortgages or other encumbrances, the amount of income presently realized, if any, or an estimate as to what a reasonable return on the entire property or any portion should be…

Entitlement to a use variance is not established merely by proof that the proposed use would be more profitable than a smaller scaled project not requiring a use variance (see Matter of Crossroads Recreation v Broz, 4 NY2d at 46). The Splash parties are entitled to a reasonable return, not the most profitable return (see id.; Matter of Westbury Laundromat, Inc. v Mammina, 62 AD3d at 891). Thus, the Supreme Court properly found that the ZBA’s determination that the Splash parties established unnecessary hardship was arbitrary and capricious since it does not have a rational basis in the record”

-Steven Silverberg