Opinion
November 15, 1985
Appeal from the Supreme Court, Niagara County, Bayger, J.
Present — Hancock, Jr., J.P., Doerr, Denman, O'Donnell and Pine, JJ.
Judgment unanimously affirmed, without costs. Memorandum: As Special Term properly concluded, the action of the Zoning Board of Appeals in granting the area variance was not illegal, arbitrary or an abuse of discretion (see, Matter of Orchard Michael v Falcon, 110 A.D.2d 1048, affd 65 N.Y.2d 1007). The record demonstrates that because of the peculiar configuration of respondent Carter's triangular parcel, the application of the parking set-back provisions would prohibit parking on all of Carter's lot not covered by the building. The adverse impact of this total prohibition of parking on Carter's trucking and excavating business is self-evident. The showing was sufficient to establish practical difficulties under the circumstances (see, Matter of Fuhst v Foley, 45 N.Y.2d 441, 445; Christian v Laufer, 24 A.D.2d 624; Matter of Richards v Zoning Bd. of Appeals, 285 App. Div. 287; 2 Anderson, New York Zoning Law and Practice § 23.35, at 211-213 [3d ed 1984]).
The provision in the Town Zoning Ordinance permitting the Zoning Board of Appeals to grant a variance, regardless of type, only when "unnecessary hardship" has been demonstrated is in direct conflict with Town Law § 267 (5), which mandates that the Town Zoning Board of Appeals "shall have the power" to grant a variance "[w]here there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter" of a zoning provision. Thus, the provision of the Town Zoning Ordinance in curtailing the powers of the Zoning Board of Appeals in contravention of the express mandate of the statute, if applied here so as to require a demonstration of "unnecessary hardship" for granting an area variance, is a nullity (NY Const, art IX, § 2 [c] [i]; Municipal Home Rule Law § 10 [i]; see, Consolidated Edison Co. v Town of Red Hook, 60 N.Y.2d 99, 105; State of New York v Trustees of Freeholders Commonalty, 99 A.D.2d 804, 805). We reject petitioners' argument that the provision of the ordinance which is inconsistent with Town Law § 267 has effected an amendment of that section as it applies to the Town of Cambria. Local legislation could not have such effect for several reasons. It is an ordinance, not a local law (see, Municipal Home Rule Law § 10 [ii] [d] [3]). It did not purport to amend or supersede Town Law § 267 (5) in its application to the Town of Cambria (cf. Rozler v Franger, 61 A.D.2d 46, affd 46 N.Y.2d 760). Finally, the ordinance was passed in 1974 before towns were empowered to amend and supersede general laws (Municipal Home Rule Law § 10 [ii] [d] [3], as added by L 1976, ch 365, § 1, eff June 15, 1976).