IN RE: John SALVADOR Jr. et al. (1999)

Appeals (1) from a judgment of the Supreme Court (Viscardi, J.), entered November 24, 1997 in Warren County, which, inter alia, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, granted respondents' motions to dismiss the petition/complaint for failure to state a cause of action, and (2) from an order of said court, entered May 15, 1998 in Warren County, which denied petitioners' motion for reconsideration.

On March 14, 1997, petitioners filed an application for a building permit with respondent Town of Queensbury in Warren County seeking approval to construct a 300-square-foot hunting and fishing cabin on a portion of their three-acre parcel on Lake George within the waterfront residential district.   Situated on this parcel at the time of the application was a 612-square-foot water sports center, a boathouse and 22 boat slips located along 700 feet of shoreline which constitutes, along with adjacently owned land, Dunham's Bay Lodge, operated by petitioners as a resort and marina.

By letter dated April 1, 1997, respondent Town Zoning Administrator denied petitioners' application contending, inter alia, that the location of such structure did not comply with the 50-foot shoreline setback specified in the local zoning ordinance.   Upon a further denial of petitioners' reconsideration attempt, petitioners appealed to respondent Zoning Board of Appeals (hereinafter the Zoning Board), which ultimately denied the application after a hearing.

This combined CPLR article 78 proceeding and declaratory judgment action was thereafter commenced, alleging that respondents acted arbitrarily and capriciously in denying their building permit application, that the zoning ordinance is vague and ambiguous as to which “shoreline” is to be used with respect to the setback requirements, and that the enforcement of said ordinance amounts to an unconstitutional taking of petitioners' property.   The Town, the Zoning Board and the Zoning Administrator (hereinafter collectively referred to as the Town respondents) moved to dismiss the petition/complaint contending, inter alia, that it failed to state a cause of action.   Respondent Adirondack Park Agency (hereinafter the Agency) moved to intervene as a matter of right (see, CPLR 1001[a];  Executive Law § 808[5] ) and to dismiss for the reasons set forth in the Town respondents' motion.

After oral argument, at which petitioners consented to the Agency's intervention, Supreme Court found that it lacked jurisdiction to review the contentions raised within the context of the CPLR article 78 proceeding due to the failure to file the notice of petition with the clerk and thereafter serve it upon respondents.   It nonetheless analyzed the merits as well as the constitutional claim alleged in the declaratory judgment action.   It upheld the determination of the Zoning Board and dismissed the constitutional claim for failing to state a cause of action.   Petitioners unsuccessfully moved for reconsideration, claiming that the later failure of the Town to allow construction of a single-family dwelling on that portion of their property that was not submerged, except for a diminimus amount, constitutes an unconstitutional taking of property.   Petitioners appeal both orders.

 Addressing the dismissal of the CPLR article 78 proceeding based upon a failure to file the notice of petition and thereafter serve it upon respondents, we agree that such failure to properly commence this special proceeding rendered it subject to dismissal (see, CPLR 304;  Matter of Fry v. Village of Tarrytown, 89 N.Y.2d 714, 717, 658 N.Y.S.2d 205, 680 N.E.2d 578;  Matter of Gershel v. Porr, 89 N.Y.2d 327, 332, 653 N.Y.S.2d 82, 675 N.E.2d 836;  Grover v. Wing, 246 A.D.2d 813, 814, 667 N.Y.S.2d 785).   With respondents timely raising such defect in its preanswer motion to dismiss, annexing affidavits from the Executive Director of Community Development, the Zoning Administrator and the Town Clerk in support thereof, we affirm the dismissal of the petition on that basis.

 With respect to the constitutional claim alleged in the declaratory judgment action, we find the record to belie the contention that petitioners have been deprived of all reasonable or economically viable uses for their property.   The record reflects, and petitioners do not dispute, that they maintain docks and a boathouse on the water at the shoreline, above the land at issue here, in conjunction with the operation of their resort and marina.   In our view, this constitutes a reasonable or economically viable use of their property (see, Manocherian v. Lenox Hill Hosp., 84 N.Y.2d 385, 392, 618 N.Y.S.2d 857, 643 N.E.2d 479, cert. denied 514 U.S. 1109, 115 S.Ct. 1961, 131 L.Ed.2d 853).

Accordingly, the judgment and order of Supreme Court are affirmed.

ORDERED that the judgment and order are affirmed, without costs.

PETERS, J.

CARDONA, P.J., SPAIN, CARPINELLO and GRAFFEO, JJ., concur.