Opinion
December 12, 1949.
In a proceeding under article 78 of the Civil Practice Act, to review a determination of the zoning board of appeals of the city of Yonkers, whereby a variance was granted so as to permit alteration and use of premises in a residence district as a convalescent home, the board's determination is annulled, with one bill of $50 costs and disbursements, without prejudice to a further hearing before the board, or a new application thereto, not inconsistent with this memorandum. The board is authorized to grant a variance upon proof before it of the following: (1) That the land in question would not yield a reasonable return if used only for a purpose allowed in that zone. (2) That the owner's plight is due to unique circumstances, and not to the general conditions in the neighborhood, which may reflect the unreasonableness of the zoning ordinance itself. (3) That the use applied for will not alter the essential character of the neighborhood. ( Matter of Otto v. Steinhilber, 282 N.Y. 71; Matter of Hickox v. Griffin, 298 N.Y. 365.) It appears that there was adequate proof before the board of elements (1) and (3) above, namely, lack of a reasonable return under conforming use, and that the proposed use would not alter the essential character of the neighborhood. The return, however, indicates an absence of evidence as to element (2) above, namely, that the owner's plight is due to unique circumstances, and not to the operation of the ordinance provision which is applicable to the district. The fact of the existence of this latter element may have been within the personal knowledge of the members of the board; but neither the decision nor the return makes such a showing. ( People ex rel. Fordham Manor Ref. Church v. Walsh, 244 N.Y. 280, 287.) Johnston, Acting P.J., Adel, Sneed, Wenzel and MacCrate, JJ., concur.