The New York Appellate Division, Third Department recently addressed a case involving the evidentiary requirements associated with justifying a use variance. The lower court had found respondents, who operated an industrial manufacturing business as a non-conforming use, had expanded their facility in 2001 after a zoning code prohibited manufacturing uses in the property’s zone. On those grounds the court granted the petitioner’s request for an injunction against using the property for nonresidential purposes. Respondents then obtained a use variance determination from the Zoning Board of Appeals. That decision was challenged in an Article 78 proceeding and upheld, leading to the current appeal.

In reversing the Supreme Court’s decision, the Appellate Division zeroed in on the requirement that an applicant for a use variance show that the property cannot yield a reasonable return if used for any of the purposes the current zoning would permit. Specifically, applicants must show this through “dollars and cents” proof for each of the various permitted uses. In the present case, the court found that respondent’s conclusory statement that 10-20% of respondents revenue would be needed to provide an alternative to their expansion, and that doing so would put them “out of business,” was insufficient to satisfy the “dollars and cents” burden of proof required. The court accordingly ruled that the Zoning Board of Appeals should not have granted the variance, and reversed.

The case is Nemeth v Village of Hancock Zoning Board of Appeals, 2015 WL 1565749 (NYAD 3 Dept. 4/9/2015). The full text of the decision can be found at http://www.courts.state.ny.us/ad3/