Opinion
July 10, 1987
Appeal from the Supreme Court, Oneida County, Lynch, J.
Present — Dillon, P.J., Doerr, Boomer, Pine and Lawton, JJ.
Determination unanimously confirmed and petition dismissed without costs. Memorandum: This CPLR article 78 proceeding to review the determination of the Zoning Board of Appeals denying an application for a use variance should have been disposed of at Special Term. Nevertheless, we need not remit the matter but may determine it on the merits (see, General City Law § 82; Matter of Willow Garden Apts. v. Riker, 36 A.D.2d 892). The Board properly denied petitioner's application because the record before it was devoid of proof that the property could not yield a reasonable return if used for a purpose permitted by the zoning ordinance (see, Matter of Crossroads Recreation v. Broz, 4 N.Y.2d 39; Matter of Otto v. Steinhilber, 282 N.Y. 71, rearg denied 282 N.Y. 681). Moreover, petitioner, who acquired the property with notice of the zoning restrictions, presumably paid a consideration appropriate to the limitation of its use (see, People ex rel. Fordham Manor Refm. Church v. Walsh, 244 N.Y. 280, 288). Thus, having knowingly acquired the property for a prohibited use, he 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, 89, cert denied 340 U.S. 933).