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A Use Variance Should Be Denied for Failure to Provide Dollars and Cents Proof of Unnecessary Hardship

The Appellate Division determined that the failure to provide “dollars and cents” proof of the inability to use a property for any permitted use required denial of a use variance.  In Matter of Dean v. Town of Poland Zoning Board of Appeals, the owners of approximately 17 acres of land had agreed, subject to obtaining a use variance, to sell two acres of the property for construction of a retail store. Initially, the Zoning Board of Appeals (ZBA) issued the use variance without making any findings. Upon challenge by the Petitioners, who own property nearby, the lower court upheld the issuance of the variance. On appeal, the Appellate Division remanded the matter for the ZBA to make proper findings and held the appeal pending the making of such findings. Thereafter, the ZBA made findings based upon the criteria set forth in Town Law section 267-b [2]. The Appellate Division then reversed the lower court and granted the petition to overturn the determination of the ZBA granting the use variance.

The Court noted Town Law requires, in order to be eligible for a use variance, the applicant must demonstrate that it may not obtain a reasonable return from any use of the property permitted under the applicable zoning code. The law requires a financial analysis of the costs and the degree of monetary return that can be recovered if the property is used as permitted under existing zoning regulations- the “dollars and cents” proof.  In this case, evidence was submitted that the cost of removal of  an over one hundred year old house on the two acre parcel would be prohibitive to removing the house and selling the lot as vacant land.

However, the Court noted:

“…there is no evidence in the record establishing whether respondents could realize a reasonable return on the parcel if it were used for any other conforming use. Indeed, respondents’ expert did not discuss any possible use of the property other than as vacant land. Thus, inasmuch as respondents’ expert failed to discuss the possible return with respect to all uses permitted within the zoning district, respondents failed to meet their burden of demonstrating that they cannot realize a reasonable return on the property without the requested use variance ….”

In addition, as noted, the two acre parcel was part of a much larger, 17 acre property. Therefore, the Court held:

“…the expert discussed only the possible return on a small section of the property owned by the Ormond respondents, rather than evaluating the potential return on the Ormond respondents’ entire parcel (see Matter of Concerned Residents of New Lebanon v Zoning Bd. of Appeals of Town of New Lebanon, 222 AD2d 773, 774-775 [3d Dept 1995]; Matter of Amco Dev. v Zoning Bd. of Appeals of Town of Perinton, 185 AD2d 637, 638 [4th Dept 1992]). The fact that respondents’ application for a use variance was limited to the two-acre parcel is ‘of no moment; the inquiry as to an inability to realize a reasonable return may not be segmented to examine less than all of an owner’s property rights subject to a regulatory regime’ (Matter of Nemeth v Village of Hancock Zoning Bd. of Appeals, 127 AD3d 1360, 1363 [3d Dept 2015]). The expert’s failure to address respondents’ ability to obtain a reasonable return on the remaining parts of the parcel, or on other permissible uses within the zoning district, is fatal to the application. Thus, the determination is not supported by substantial evidence (see generally Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 613 [2004]; Matter of Expressview Dev., Inc. v Town of Gates Zoning Bd. of Appeals, 147 AD3d 1427, 1428-1429 [4th Dept 2017]).”

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