Opinion
July 23, 1984
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.
¶ 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.
¶ 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 N.Y.2d 492, 504-505; Matter of Grimpel Assoc. v. Cohalan, 41 N.Y.2d 431, 433; Dodge Mill Land Corp. v. Town of Amherst, 61 A.D.2d 216, 221).
¶ 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 N.Y.2d 317, app dsmd 371 U.S. 74). Mollen, P.J., Gibbons, Weinstein and Niehoff, JJ., concur.