Koschuk v. Kleinfelder

270 A.D.2d 963, 705 N.Y.S.2d 547, 2000 N.Y. App. Div. LEXIS 3618

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 29, 2000
• Status: Published

Opinion

—Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly denied the petition seeking to annul respondents’ determination denying an area variance (see, Town Law § 267-c [1]). Petitioner failed to present “dollars and cents” proof in support of his contention that the denial of the variance amounted to a confiscatory taking (see, Matter of Khan v Zoning Bd. of Appeals, 87 NY2d 344, 352, rearg denied 87 NY2d 1056). Petitioner’s contention that literal application of the zoning regulations results in a practical difficulty or unnecessary hardship “is not raised in the CPLR article 78 petition, and thus it is not preserved for our review” (Matter of Kemp v Erie County Dept. of Social Servs., 266 AD2d 905, 906; see, Gregory v Town of Cambria, 69 NY2d 655, 656-657; Matter of Sinclair v Coughlin, 136 AD2d 645). In any event, Town Law § 267-b (3) (b) eliminates any express reference to “practical difficulties or unnecessary hardships” (Town Law former § 267 [5]) as the standard for the issuance of area variances (see, Matter of Sasso v Osgood, 86 NY2d 374, 384). (Appeal from Judgment of Supreme Court, Erie County, Mintz, J. — CPLR art 78.) Present — Pine, J. P., Wisner, Hurlbutt, Kehoe and Lawton, JJ.