Opinion
December 29, 1975
In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Zoning Board of Appeals of the Town of Southampton which, after a hearing, granted a variance permitting the division of a parcel into single and separate lots, petitioner appeals from a judgment of the Supreme Court, Suffolk County, entered October 15, 1974, which dismissed the petition. Judgment reversed, on the law, without costs, and the matter is remitted to the respondent zoning board of appeals for (1) a new hearing at which it shall consider such proof as may be presented concerning whether practical difficulties exist and (2) a new determination. In the absence of proof of "practical difficulties or unnecessary hardships" the respondent board was without power, under the subject zoning ordinance, to grant the area variance sought (cf. Matter of Estate of Mandigo v Zoning Bd. of Appeals of Vil. of Highland Falls, 45 A.D.2d 964). We decide no other question. Hopkins, Acting P.J., Brennan and Munder, JJ., concur; Cohalan, J., dissents and votes to affirm the judgment.