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Appellate Division Reverses Grant of Use Variance

The Appellate Division reversed the Supreme Court’s decision to uphold the granting of a use variance and related area variances to permit expansion of a non-confirming adult entertainment night club. In Matter of Edwards v. Davison, the Mount Vernon City Council, in light of legislation adopted several years ago to ban such uses from the City’s downtown business district, took the unusual step of suing the Zoning Board of Appeals to challenge the approval of the variances, which allowed the expansion of the non-conforming club.

The Appellate Division held:

“As the record was devoid of any evidence, in dollars and cents form, of Veronica Realty’s inability to realize a reasonable return under the existing permissible uses, there was no rational basis for the ZBA’s finding that the premises would not yield a reasonable return in the absence of the requested use variance….”

The other unusual aspect of the case, which was raised on appeal, but not reached by the Court, is that with respect to certain of the criteria to be examined by a ZBA in issuing use and area variances, the Zoning Board of Appeals’ findings merely noted it did “not opine” on those issues. Silverberg Zalantis, which represented the City Council, was hopeful of getting a ruling on that issue as well, but the Court apparently felt it was no necessary to reach that issue.

-Steven Silverberg

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