Posted by: Patricia Salkin | April 25, 2015

NY Appellate Court Voids Use Variance Finding Insufficient Proof That Land Could Not Yield a Reasonable Return

Petitioners owned property adjacent to property owned by respondents Rosa Kuehn and Perry Kuehn, on which respondent K–Tooling operated an industrial manufacturing business as a nonconforming use. The lower court determined that K–Tooling and the Kuehns unlawfully expanded their nonconforming use by constructing an addition onto the manufacturing facility in 2001 after a zoning code was enacted prohibiting manufacturing use in the zone in which the property was located. The court and issued an injunction prohibiting use of the addition for any nonresidential purposes. Respondents applied for and received a use variance from respondent Village of Hancock Zoning Board of Appeals allowing the continued use of the addition in the manufacturing process. Petitioners commenced this CPLR article 78 proceeding to annul the ZBA’s determination, arguing that respondents failed to establish an unnecessary hardship warranting a use variance for the addition. The Supreme Court dismissed the petition, prompting this appeal.

The court first discussed that an applicant for a use variance bears the burden of demonstrating, among other things, that the property cannot yield a reasonable return if used for any of the purposes permitted as it is currently zoned. Such an inability to yield a reasonable return must be established through the submission of “dollars and cents” proof with respect to each permitted use. Despite this, Perry Kuehn’s bare conclusory statements that an additional “10 to 20 percent” of revenue would be needed to find a similarly sized location to house the older manufacturing equipment, and that “we would go out of business” without the addition, were insufficient to constitute the requisite “dollars and cents” proof necessary to demonstrate an inability to realize a reasonable return. Because there was insufficient proof, the court held that the ZBA should not have granted the variance.

Nemeth v Village of Hancock Zoning Board of Appeals, 2015 WL 1565749 (NYAD 3 Dept. 4/9/2015)

The opinion can be accessed at


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