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Gregory v. Town of Cambria

Court of Appeals of the State of New York
Dec 16, 1986
503 N.E.2d 1366 (N.Y. 1986)

Opinion

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.


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 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.


Summaries of

Gregory v. Town of Cambria

Court of Appeals of the State of New York
Dec 16, 1986
503 N.E.2d 1366 (N.Y. 1986)
Case details for

Gregory v. Town of Cambria

Case Details

Full title:SHIRLEY GREGORY et al., Appellants, v. TOWN OF CAMBRIA et al., Respondents

Court:Court of Appeals of the State of New York

Date published: Dec 16, 1986

Citations

503 N.E.2d 1366 (N.Y. 1986)
503 N.E.2d 1366
511 N.Y.S.2d 829

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