
    Rochester Poster Advertising Co., Inc., Appellant, v. Town of Penfield, Respondent.
   Order unanimously affirmed, without costs. Memorandum: Plaintiff brings this action for a judgment declaring that the Town of Penfield’s sign ordinance passed in 1970, as it affected plaintiff’s property, was confiscatory, unconstitutional and ultra vires because it attempted to regulate in an area pre-empted by the State of New York. Special Term dismissed its complaint for legal insufficiency, found that the town ordinance was constitutional and the area of road signs it regulated had not been pre-empted by the State. Plaintiff alleged that it erected nine billboards in the Town of Penfield in the years 1936-1953 inclusive, and that these billboards were legal and permitted uses when erected. It did not allege that it obtained special permits which were required by existing town ordinances when these billboards were erected. The existence of a lawful nonconforming use is a necessary element of a cause of action declaring an ordinance such as that involved herein unconstitutional (Rapasadi v. Phillips, 2 A D 2d 451). Since no allegation was made that the necessary permits were obtained, the complaint was properly dismissed (Heram Holding Corp. v. City of Albany, 33 A D 2d 1086). We basé our decision solely on this ground and do not pass on any of the other points discussed by Special Term. (Appeal from order of Monroe Special Term in declaratory judgment action.) Present—Marsh, P. J., Moule, Mahoney, Goldman and Del Veeehio, JJ.  