Burack v. Sedore

103 A.D.2d 817, 478 N.Y.S.2d 49, 1984 N.Y. App. Div. LEXIS 19449

Opinion

— In an action for a declaratory judgment that the zoning ordinance of the Town of Poughkeepsie is unconstitutional as applied to their property, plaintiffs appeal from a judgment of the Supreme Court, Dutchess County (Rosenblatt, J.), entered January 4, 1983, which dismissed their complaint. 11 Judgment modified, on the law, by deleting the provision thereof dismissing the complaint and substituting therefor a provision declaring that the ordinance, as applied to plaintiffs’ property, is valid and constitutional. As so modified, judgment affirmed, without costs or disbursements. 11 The Supreme Court correctly held that plaintiffs had not satisfied their burden of proving that the zoning ordinance of the Town of Poughkeepsie is discriminatory or confiscatory. They failed to show bona fide efforts to use, sell or lease the property profitably for one of the many uses, other than public or quasi-public uses, permitted by the ordinance either as of right, or with a special use permit (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 504-505; Matter of Grimpel Assoc. v Cohalan, 41 NY2d 431, 433; Dodge Mill Land Corp. v Town of Amherst, 61 AD2d 216, 221). 11 Since this is an action for a declaratory judgment, the court should have declared that the ordinance, as applied to plaintiffs’ property, is valid and constitutional (Lanza v Wagner, 11 NY2d 317, app dsmd 371 US 74). Mollen, P. J., Gibbons, Weinstein and Niehoff, JJ., concur.