Jarmain v. Hamburg , 72 A.D.2d 575 ( 1979 )

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Zoning Appeals of the Village of Lake Success which, after a hearing, denied the petitioners’ application for area variances, the board appeals from a judgment of the Supreme Court, Nassau County, dated March 26, 1979, which annulled the determination and remanded the matter to the board for a new determination. Permission for the taking of this appeal is hereby granted by Mr. Justice Cohalan. Judgment reversed, on the law, determination of the board of zoning appeals confirmed, and proceeding dismissed on the merits, with costs. In order to qualify for an area variance, an applicant must demonstrate that he cannot utilize his property without coming into conflict with the restrictions of a zoning ordinance (Matter of Fuhst v Foley, 45 NY2d 441, 445). The petitioners in this case have failed to show that utilization of their property, prior to the time a tennis court was constructed thereon, conflicted with the zoning ordinance. Gulotta, J. P., Cohalan, Martuscello and Gibbons, JJ., concur.