Opinion
July 12, 1985
Appeal from the Supreme Court, Oneida County, Tenney, J.
Present — Dillon, P.J., Hancock, Jr., Denman, Green and Pine, JJ.
Judgment, insofar as appealed from, unanimously modified, on the law, by striking the last two adjudging paragraphs and, as modified, affirmed, without costs. Memorandum: Special Term properly upheld the determination of the Zoning Board of Appeals that petitioners' use of their property as a "mink farm" is in violation of the zoning ordinance ( see, Matter of Holy Spirit Assn. v. Rosenfeld, 91 A.D.2d 190, 201, lv denied 63 N.Y.2d 603) but erred in granting petitioners a use variance. An applicant for a building permit obtains no vested rights through the issuance of an invalid permit ( see, Matter of B G Constr. Corp. v. Board of Appeals, 309 N.Y. 730, 732; Silverman v Keating, 52 A.D.2d 1076, 1077; 11 N.Y. Jur 2d, Buildings, Zoning, and Land Controls, § 40, at 640-641). The building inspector had no authority to permit a use prohibited by the ordinance and his issuance of the permit conferred no rights on petitioners. To be entitled to a variance, petitioners were required to show "unnecessary hardship", i.e., that "(1) the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone; (2) that the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself; and (3) that the use to be authorized by the variance will not alter the essential character of the locality" ( Matter of Otto v. Steinhilber, 282 N.Y. 71, 76, rearg denied 282 N.Y. 681). Petitioners submitted no proof of unnecessary hardship and thus are not entitled to a variance ( see, Matter of Village Bd. v. Jarrold, 53 N.Y.2d 254, 257). The cases relied on by petitioners, Matter of Jayne Estates v. Raynor ( 22 N.Y.2d 417) and Reichenbach v. Windward At Southampton ( 80 Misc.2d 1031, affd on opn below 48 A.D.2d 909, lv dismissed 38 N.Y.2d 912), hold only that expenditures made in reliance on an invalid building permit may be considered on the issue of unnecessary hardship in determining entitlement to a variance, not that good-faith reliance on an invalid building permit gives rise to a right to a variance. Although use of petitioners' property as a mink farm is prohibited, Special Term was without authority to prohibit future construction on the property. If petitioners want to improve their property for a use permissible under the ordinance, there is no reason that they should not be allowed to apply for necessary permits and erect other structures.