
    Benway Stadium, Inc., Appellant, v Town of Volney, Respondent.
   — Judgment unanimously modified, on the law, without costs, and, as modified, affirmed, in accordance with the following memorandum: Defendant rezoned from industrial to residential plaintiffs 68-acre parcel improved with a racetrack and parking facility. It is conceded that use as a racetrack, which predates all zoning laws by defendant, continues to be a permitted nonconforming use. Nevertheless, plaintiff brought this declaratory judgment action seeking to have the law declared unconstitutional.

When a property owner challenges a zoning law as being confiscatory, he must establish by proof beyond a reasonable doubt that, "with respect to the whole tract”, a reasonable return from the property may not be obtained from any use permitted by the existing ordinance, including "a nonconforming use pre-existing the zoning classification” (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 503). Plaintiffs proof that its parcel, if undeveloped, would have suffered a tenfold decrease in value misses the mark. Plaintiff must establish that permitted uses, including nonconforming uses, destroy the economic value of the property. No such evidence was presented, and the court, therefore, properly concluded that plaintiff failed to meet its burden.

The court erred, however, by dismissing the complaint. In a declaratory judgment action, the proper disposition is to make a declaration (Hirsch v Lindor Realty Corp., 63 NY2d 878, 881). Accordingly, we declare the challenged ordinance to be constitutional and otherwise affirm the judgment. (Appeal from judgment of Supreme Court, Oswego County, Inglehart, J. — declaratory judgment.) Present — Dillon, P. J., Doerr, Green, Pine and Lawton, JJ.  