In the Matter of Edward F. Ryan et al., Petitioners, and DeWitt-Aero Manufacturing Corp., Intervenor-Petitioner, v. Russell Miller et al., Constituting the Town of Geddes Zoning Board of Appeals, Respondents

In the Matter of Edward F. Ryan et al., Petitioners, and DeWitt-Aero Manufacturing Corp., Intervenor-Petitioner, v Russell Miller et al., Constituting the Town of Geddes Zoning Board of Appeals, Respondents. [MAJORITY] Determination unanimously confirmed without costs and petition dismissed. Memorandum: Because petitioners failed to establish unnecessary hardship, the Zoning Board’s determination denying the request for a use variance was proper. Petitioners’ expert opined that the owners would realize a 5.7% return on the sale of the property for a permitted use, whereas they could realize a 10% to 11% return on other conservative investments. However, the owners of the property must establish that they could not realize a reasonable return, and the fact that they cannot put the property to its most profitable use is immaterial (see, Williams v Town of Oyster Bay, 32 NY2d 78, 81-82). Moreover, petitioners failed to demonstrate that the property could not be sold for a permitted use because no evidence was presented concerning what efforts were made to sell the property (see, Matter of Forrest v Evershed, 7 NY2d 256, 262). (Article 78 proceeding transferred by order of Supreme Court, Onondaga County, Mordue, J.) Present—Dillon, P. J., Doerr, Boomer, Lawton and Davis, JJ.