Gregory v. Town of Cambria , 511 N.Y.S.2d 829 ( 1986 )

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Under Town Law § 267 (5) an area variance may be granted on a showing of practical difficulty (Matter of Fuhst v Foley, 45 NY2d 441; Matter of Cowan v Kern, 41 NY2d 591; Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309). We agree with the Appellate Division that the evidence before the Zoning Board of Appeals was sufficient to establish practical difficulty.

We also agree with the Appellate Division that to the extent that the town ordinance requires proof of hardship for an area variance it is in conflict with Town Law § 267 (5) and cannot be sustained under the Municipal Home Rule Law. As the Appellate Division noted, Municipal Home Rule Law § 10 (1) (ii) (d) (3) applies to local laws and not to ordinances. We have not considered the appellant’s alternative argument, that the ordinance is authorized by Town Law § 261, since that issue was not raised in the petition and thus has not been preserved for review.

Chief Judge Wachtler and Judges Meyer, Kaye, Alexander and Titone concur; Judges Simons and Hancock, Jr., taking no part.

Order affirmed, with costs, in a memorandum.