
    In the Matter of Martin Album, Respondent, v. Lennarth Anderson et al., Constituting the Zoning Board of Appeals of the City of Rochester, et al., Appellants.
   Order unanimously reversed and determination confirmed, without costs, without prejudice, however, to renewal by petitioner of his application to the Zoning Board, if petitioner is so advised. Memorandum: Petitioner on the hearing before the board, as Special Term recognized, submitted no proof that the land in question could not yield a reasonable return if used only in conformity with the existing zoning regulation. This is one of the three requisite elements of proof before a board may exercise its discretion and grant a use variance on the ground of unnecessary hardship. (Matter of Otto v. Steinhilber, 282 N. Y. 71, 76.) In the absence of such proof it is unnecessary to consider the other two elements — (1) that the plight of petitioner is due to unique circumstances and (2) that the use to be authorized by the variance will not alter the essential character of the locality. (Matter of Gerling v. Board of Zoning Appeals, 6 A D 2d 247, 251.) We recognize that the Zoning Ordinance (§ 91-22) provides that after the Board of Appeals has denied relief following a hearing it shall not hold further hearings on the same or substantially similar applications unless the board shall make findings of changed conditions. We conclude, however, that upon the hearing herein before the board extraneous matters were injected therein that make it questionable whether appellant received a fair and impartial hearing. In the interests of justice our decision confirming the determination of the board .is without prejudice to the right of petitioner to renew the application if he is so advised. (Appeal from order of Monroe Special Term vacating the determination of the Zoning Board denying an application for a variance and remitting to board for further evidence.)

Present — Williams, P. J., Bastow, Goldman, Henry and Del Vecchio, JJ.  