Opinion
December 19, 1986
Appeal from the Supreme Court, Monroe County, Tillman, J.
Present — Callahan, J.P., Boomer, Green, Balio and Lawton, JJ.
Judgment affirmed, without costs, for the reasons stated in the decision at Special Term, Tillman, J. All concur, except Boomer, J., who dissents and votes to reverse and grant the petition in the following memorandum.
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 N.Y. 86, cert denied 340 U.S. 933; Matter of Romanelli v. Bonvouloir, 102 A.D.2d 872; Repicci v Sharpe, 96 A.D.2d 727, lv denied 60 N.Y.2d 556; Ames v. Palma, 52 A.D.2d 1077; Matter of Kenyon v. Quinones, 43 A.D.2d 125, 127; Matter of Everhart v. Johnston, 30 A.D.2d 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 N.Y.2d 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