Opinion
December 7, 1992
Appeal from the Supreme Court, Nassau County (Burke, J.).
Ordered that the judgment is affirmed, without costs or disbursements.
Contrary to the appellant's contention, we find that the proposed conversion of a retail store to a Chinese food take-out restaurant constituted a change of a nonconforming use for which a variance was required under the town's zoning ordinance (see, North Hempstead Code § 70-208; Town of Somerset v Perry, 115 A.D.2d 313, affd 67 N.Y.2d 1014; City of Buffalo v Roadway Tr. Co., 303 N.Y. 453; cf., Biener v Incorporated Vil. of Thomaston, 98 A.D.2d 785).
We further reject the appellant's contention that it properly granted the applicant a use variance permitting the store to be converted to a take-out restaurant. Although a use variance may be granted upon proof of "unnecessary hardship", in order to establish such hardship the record must show, inter alia, that the land in question cannot yield a reasonable return if used only for a purpose allowed in the zone in which it is situated (see, Matter of Village Bd. v Jarrold, 53 N.Y.2d 254; Matter of Crossroads Recreation v Broz, 4 N.Y.2d 39). Moreover, "[i]t is now well recognized by the courts of this State that in order to show that the land in question cannot yield a reasonable rate of return, an applicant must show proof `in dollars and cents form' which demonstrates that no permissible use will yield a reasonable rate of return, and that conclusory testimony of witnesses, unsupplemented by such proof, is insufficient" (Matter of Miltope Corp. v Zoning Bd. of Appeals, 184 A.D.2d 565, 566; Matter of D'Alessandro v Board of Zoning Appeals, 177 A.D.2d 694; Matter of Town Bd. v Zoning Bd. of Appeals, 161 A.D.2d 647). Since the record here is devoid of any evidence "in dollars and cents form" of the applicant's inability to realize a reasonable return under existing permissible uses, there is no rational basis for the appellant's finding that the premises would not yield a reasonable return absent the grant of a use variance. Accordingly, we find that the Supreme Court properly granted the petition and annulled the appellant's determination. Mangano, P.J., Thompson, Eiber and Ritter, JJ., concur.