Upper Delaware Avenue Ass'n of Delmar, Inc. v. Fritts

In 1932, Alphonse and Bertha Verstandig purchased property located at 454 Delaware Avenue in the Town of Bethlehem, Albany County. The Verstandigs immediately commenced a horticultural business on the property. Eventually, they constructed greenhouses and acquired more property so that they owned five acres of land. In 1944, the Town of Bethlehem adopted a zoning ordinance which classified the property as "residential A and AA”, zones in which the florist business was not allowed. The business operated by the Verstandigs was allowed to continue to operate as a prior nonconforming use. In 1956, 1965 and 1972, the Verstandigs obtained variances to expand their business. In 1975, a variance was granted to allow the Verstandigs to replace 5,000 square feet of greenhouses with new greenhouses covering 12,000 to 13,-000 square feet. The variance had a five-year time limit and, because of economic circumstances, the Verstandigs did not undertake the work.

In 1985, Verstandig’s Florist, Inc., through its owner Robert Verstandig, son of the original owners, applied for a variance which was essentially the same as the 1975 variance except that it sought to expand the 5,000 square feet of greenhouses to 18,000 square feet. After a public hearing, the Town of Bethlehem Zoning Board of Appeals granted the variance. Petitioners, a group of neighbors opposed to the proposed expansion, commenced this CPLR article 78 proceeding challenging the Board’s determination. Special Term dismissed the petition and this appeal ensued.

We reverse. Since the florist business was a prior nonconforming use, a use variance was necessary to expand the greenhouses (see, Matter of Crossroads Recreation v Broz, 4 NY2d 39). Even though Verstandig did not seek to change his business, but simply expand the same nonconforming use, a use variance was necessary (id., p 42). One of the requirements for a use variance is that the applicant show that the land cannot yield a reasonable return if used only for a purpose allowed in the zone (id., p 43). Where this standard is applied to a prior nonconforming use, the applicant must demonstrate that the land cannot yield a reasonable return if used as it then exists or for any other use allowed in the zone (id., p 44). Here, Verstandig did not show that the property was not yielding a reasonable return. He simply showed that the expansion would allow him to increase his wholesale business and thereby increase his profit so that he could bring his son into the business. He also attempted to show that it would be a financial hardship to purchase land elsewhere to expand his wholesale business. Such proof simply deals with the proposed expansion and not the florist business as it exists. Since there was insufficient proof that the land could not yield a reasonable return as it existed or for any other use permitted in the zone, the variance was improperly granted.

Judgment reversed, on the law, without costs, and petition granted. Mahoney, P. J., Casey and Weiss, JJ., concur.