Summary
In Mt. Lyell Enterprises. Inc. v. DeRooy, 159 A.D.2d 1015, 1016 (4th Dep't 1990), an 11.76% rate of return after three years was found to be "not unreasonably low."
Summary of this case from Kettaneh v. Bd. of Std. App. of New YorkOpinion
March 16, 1990
Appeal from the Supreme Court, Monroe County, Patlow, J.
Present — Callahan, J.P., Denman, Boomer, Balio and Lowery, JJ.
Determination unanimously confirmed without costs and petition dismissed. Memorandum: Supreme Court erred in transferring to us this CPLR article 78 proceeding to review the determination of the Zoning Board denying petitioner's application for a use variance. Town Law § 267 (7) enjoins the Supreme Court to "itself dispose of the cause on the merits, determining all questions which may be presented for determination." Nevertheless, we may now consider and determine the proceeding on the merits (see, Matter of Willow Garden Apts. v Riker, 36 A.D.2d 892).
We conclude that the determination of the Zoning Board was supported by substantial evidence. Based on the information before it, the Board was entitled to determine that the property could yield a reasonable rate of return if used for a permitted use. We may not substitute our judgment for the judgment of the Board that an 11.76% return after three years was not unreasonably low.
Moreover, petitioner may not claim hardship because, with knowledge of the zoning restrictions, it acquired the property for a use not permitted in the district (see, Matter of Clark v Board of Zoning Appeals, 301 N.Y. 86, 89, rearg denied 301 N.Y. 681, cert denied 340 U.S. 933; Matter of Carriage Works Enters. v Siegel, 118 A.D.2d 568, 569). The ordinance unambiguously provides that the sale of recreational vehicles is permitted only in a general industrial district and petitioner should have been aware, before it made its purchase contract unconditional, that it would have to obtain a variance before it could use the property as it intended.
Petitioner's contention that the Zoning Board was estopped from denying the variance because of certain assurances by town officials that zoning for petitioner's use "would not be a problem" lacks merit. With limited exceptions not applicable here, the doctrine of estoppel will not preclude a municipality from discharging its statutory duties (Matter of Parkview Assocs. v City of New York, 71 N.Y.2d 274, rearg denied 71 N.Y.2d 995, appeal dismissed and cert denied 488 U.S. 801; Matter of Rosbar Co. v Board of Appeals, 53 N.Y.2d 623).