Gladstone v. Rush , 715 N.Y.S.2d 660 ( 2000 )

—In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Zoning Board of Appeals of the Town of Southampton dated June 5, 1997, which granted the intervenor’s application for an area variance, the petitioner Alexandra J. Gladstone appeals from a judgment of the Supreme Court, Suffolk County (D’Emilio, J.), dated August 31, 1999, which denied the petition and dismissed the proceeding.

Ordered that the judgment is reversed, on the law, with costs payable by the intervenor-respondent, the petition is granted, the determination is annulled, and the application for a variance is denied.

The determination of the Zoning Board of Appeals of the Town of Southampton (hereinafter the ZBA) granting the requested variance to increase the usable floor area of a nonconforming building or structure by more than 50% violated the Code of the Town of Southampton § 330-167 (B) (1) (a). The violation of that provision is a question of law which may be raised for the first time on appeal (see, Block v Magee, 146 AD2d 730).

We further note that the applicant did not meet the “exceptional hardship” test for variances from the 100-foot set-back requirement (Code of Town of Southampton § 169-17 [F] [2]; Matter of Round Dune v Krucklin, 155 AD2d 668). Further, it is apparent from the determination of the ZBA that it did not adequately consider the factors set forth in Town Law § 267-b (3) (b) (see, Matter of Filangeri v Pulichene, 229 AD2d 702). Goldstein, J. P., McGinity, Luciano and Feuerstein, JJ., concur.