Amco Development, Inc. v. Zoning Bd. of Appeals of Town of Perinton

• Decision Date: 14 July 1992
• Parties: Matter of AMCO DEVELOPMENT, INC., Appellant, v. ZONING BOARD OF APPEALS OF THE TOWN OF PERINTON, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 50

586 N.Y.S.2d 50

185 A.D.2d 637

Matter of AMCO DEVELOPMENT, INC., Appellant, v. ZONING BOARD OF APPEALS OF THE TOWN OF PERINTON, Respondent.

Supreme Court, Appellate Division Fourth Department.

July 14, 1992.

Mayberry, Licht, Goldman & Leone by Richard Mayberry, Rochester, for appellant.

Robert M. Place, Fairport, for respondent.

Before DENMAN, P.J., and PINE, BALIO, FALLON and DOERR, JJ.

MEMORANDUM:

Before a zoning board of appeals may exercise its discretion and grant a use variance upon the ground that literal application of the zoning ordinance would result in unnecessary hardship, the applicant must show that "(1) the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone; (2) that the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself; and (3) that the use to be authorized by the variance will not alter the essential character of the locality" (Matter of Otto v. Steinhilber, 282 N.Y. 71, 76, 24 N.E.2d 851, rearg. denied 282 N.Y. 681, 26 N.E.2d 811; see also, Matter of Village Bd. of Vil. of Fayetteville v. Jarrold, 53 N.Y.2d 254, 257, 440 N.Y.S.2d 908, 423 N.E.2d 385).

Respondent's determinations that the parcel's unique circumstances constituted a self-created hardship and that the applicant failed to show that the land could not yield a reasonable return are supported by substantial evidence. Roughly two-thirds of the parcel consists of wetlands or a wetlands buffer area. This unique circumstance exists, however, because the owner divided the property into four lots and sold three of the parcels for residential development, leaving the subject parcel as a vacant lot. Further, that subdivision of the land was accomplished without the approval of zoning authorities.

Petitioner failed to submit evidence of the purchase price that the owner had paid for the entire property. Instead, it attempted to show that the property could not yield a reasonable return by submitting evidence of the price it had agreed to pay for the purchase of only the subject parcel. Although a contract vendee may apply for a use variance, "it is the vendor's rights that are being determined" (Matter of Colony Park v. Malone, 25 Misc.2d 1072, 1077, 205 N.Y.S.2d 166). Thus, the price that the owner initially paid for the property, the amounts realized from sales of the three other parcels,...