NY Appellate Court Annuls Finding of Unnecessary Hardship for Use Variance

This post was authored by Matthew Loescher, Esq.

Respondents Brenda M. Bunce, Terry A. Nunez, Dennis R. Ormond, and Dawn Ormond Constantine, owners of an approximately 17-acre parcel of land, entered into an agreement to sell a two-acre section of that parcel to respondent The Broadway Group, LLC. The sale was contingent on the issuance of a use variance allowing Broadway to construct a Dollar General store there. After an environmental review and a public hearing, respondent Town of Poland Zoning Board of Appeals (“ZBA”) granted the use variance, without making any findings of fact regarding whether the application submitted by Broadway and the Ormond respondents established the requisite unnecessary hardship. Petitioners, some of whom own homes near the two-acre parcel and opposed the granting of the use variance, filed a CPLR article 78 petition seeking to annul the ZBA’s determination. The Supreme Court dismissed the petition. On appeal, the case was remitted to the ZBA, which determined that respondents demonstrated “that applicable zoning regulations and restrictions have caused unnecessary hardship.”

In support of their claim, Respondents submitted evidence of the cost of removing a decrepit 19^th century house from the two-acre parcel, including the costs of asbestos remediation and air monitoring, which would be required to sell the property as vacant land. Despite this, there was 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. Additionally, respondents’ expert did not discuss any possible use of the property other than as vacant land. 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 could not realize a reasonable return on the property without the requested use variance. As the determination was not supported by substantial evidence, and the ZBA’s determination was annulled.

Dean v Town of Poland Zoning Board of Appeals, 2020 WL 4249790 (NYAD 4 Dept. 7/24/2020)