Argued November 14, 1986
Decided December 16, 1986
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, Frank R. Bayger, J.
Kenneth F. Astarita for appellants.
Gary M. Billingsley for Town of Cambria and others, respondents.
William M. Feigenbaum for Thomas Carter, doing business as Carter Trucking and Excavating Co., respondent.
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 N.Y.2d 441; Matter of Cowan v Kern, 41 N.Y.2d 591; Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 N.Y.2d 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.