Malrite T.V. of New York, Inc. v. Licciardi , 510 N.Y.S.2d 502 ( 1986 )

Boomer, J.

(dissenting). Respondent landowners, having knowingly acquired the land for a use prohibited by the zoning ordinance, could not thereafter have a variance on the ground of special hardship (see, Matter of Clark v Board of Zoning Appeals, 301 NY 86, cert denied 340 US 933; Matter of Romanelli v Bonvouloir, 102 AD2d 872; Repicci v Sharpe, 96 AD2d 727, lv denied 60 NY2d 556; Ames v Palma, 52 AD2d 1077; Matter of Kenyon v Quinones, 43 AD2d 125, 127; Matter of Everhart v Johnston, 30 AD2d 608; 2 Anderson, New York Zoning Law and Practice § 23.30 [3d ed]). Moreover, the landowners failed to submit sufficient dollars and cents proof to justify the grant of a variance. The Court of Appeals "has consistently rejected as insufficient to justify a grant of a use variance the bare conclusory testimony of witnesses that the property could not yield a reasonable return” (Matter of Village Bd. v Jarrold, 53 NY2d 254, 259). If the landowners can, by proper proof, show that the property cannot be used for any purpose permitted by the zoning ordinance, they may have a remedy by way of an action to declare the zoning ordinance unconstitutional as to their property. But on the record before us they are not entitled to a use variance. Accordingly, I vote to reverse the order appealed from and to grant the petition (Appeal from judgment of Supreme Court, Monroe County, Tillman, J. — art 78.) Present — Callahan, J. P., Boomer, Green, Balio and Lawton, JJ.