August 6, 2015

In Nemeth v. Village of Hancock Zoning Board of Appeals, 127 A.D.3d 1360 (3d Dept. 4/9/15), the court reversed the approval of a use variance for continued use of an addition to a manufacturing facility, finding that the applicant had failed to demonstrate that the land could not yield a reasonable return with current or other permitted uses by “dollars and cents” proof.

In the earlier related matter of Nemeth v. K-Tooling, 100 AD3d 1271 (3rd Dept. 2012), petitioners owned property adjacent to property owned by respondents Rosa Kuehn, Perry Kuehn and K-Tooling, who operated an industrial manufacturing facility as a nonconforming use.  Id. at 1274-1275.  In 2001, respondents constructed an addition to the manufacturing facility.  However, in 1983, the zoning code was previously enacted which prohibited manufacturing use in the zone in which the property was located.  Therefore, the Court determined that respondents unlawfully expanded their nonconforming use by constructing the addition after the zoning code had been adopted, and issued an injunction prohibiting the use of the addition for manufacturing purposes.

Respondents applied for a use variance from the Village of Hancock Zoning Board of Appeals (“ZBA”) allowing the use of the addition for manufacturing purposes, which was granted. Respondents had the burden of proving unnecessary hardship if the property was used as an existing nonconforming use of a manufacturing facility without the use of the addition.  Petitioners commenced a CPLR article 78 proceeding to annul the ZBA’s decision, arguing that the respondents’ proof was insufficient to warrant the use variance for the addition.

The Supreme Court dismissed the petition, prompting an appeal. The evidence presented at the appellate hearing established that the addition was used to house older equipment. It was unclear whether the older machinery was still being put to productive use and contributing to the profitability of the manufacturing facility.

The Appellate Division, Third Department, reversed the Supreme Court’s judgment and the petition was granted. Since there was insufficient “dollars and cents” proof that the land could not yield a reasonable return as it existed as a nonconforming use or for any other use permitted in the zone, the Appellate Division held that the ZBA should not have granted the variance.

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