Peekskill Suburbs, Inc. v. Morabito

74 A.D.2d 843, 425 N.Y.S.2d 389, 1980 N.Y. App. Div. LEXIS 10605

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 10, 1980
• Status: Published

Opinions

—In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Town Board of the Town of Cortlandt which denied petitioner’s request for a change of zoning of its property, petitioner appeals from a judgment of the Supreme Court, Westchester County, dated July 24, 1978, which denied the petition. Judgment modified, on the law, by deleting therefrom the provision denying the petition and adding thereto provisions (1) converting the proceeding into an action for a declaratory judgment and (2) declaring that the zoning ordinance, as it applies to petitioner’s property, is constitutional. As so modified, judgment affirmed, without costs or disbursements. The proper procedural vehicle by which to attack the constitutionality of a zoning ordinance is a declaratory judgment action and not an article 78 proceeding, and we so convert the proceeding (see CPLR 103, subd [c]). We find that the petitioner has failed to establish that its property will not yield a reasonable return under any of the uses permitted by the zoning ordinance, and therefore has not demonstrated that the ordinance is unconstitutional (see Megin Realty Corp. v Baron, 46 NY2d 891; Romantini v Village of East Hills, 70 AD2d 934). Mangano, Cohalan and O’Connor, JJ., concur.