Aiello v. Saladino

Determination unanimously confirmed and petition dismissed without costs. Memorandum: This CPLR article 78 proceeding to review the determination of the Zoning Board of Appeals denying an application for a use variance should have been disposed of at Special Term. Nevertheless, we need not remit the matter but may determine it on the merits (see, General City Law § 82; Matter of Willow Garden Apts. v Riker, 36 AD2d 892 ). The Board properly denied petitioner’s application because the record before it was devoid of proof that the property could not yield a reasonable return if used for a purpose permitted by the zoning ordinance (see, Matter of Crossroads Recreation v Broz, 4 NY2d 39 ; Matter of Otto v Steinhilber, 282 NY 71 , rearg denied 282 NY 681 ). Moreover, petitioner, who acquired the property with notice of the zoning restrictions, presumably paid a consideration appropriate to the limitation of its use (see, People ex rel. Fordham Manor Refm. Church v Walsh, 244 NY 280 , 288). Thus, having knowingly acquired the property for a prohibited use, he could not thereafter have a variance on the ground of "special hardship” (see, Matter of Clark v Board of Zoning Appeals, 301 NY 86 , 89, cert denied 340 US 933 ). (Article 78 proceeding transferred by order of Supreme Court, Oneida County, Lynch, J.) Present—Dillon, P. J., Doerr, Boomer, Pine and Lawton, JJ.