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January 11, 1950


The opinion of the court was delivered by: BYERS

This is an equitable action, commenced February 9, 1949, in which the plaintiff seeks an injunction against the maintenance of a village water-supply tower upon the theory that it is an aeronautical hazard and a public and private nuisance.

As to the alleged nuisance, no evidence has been offered on behalf of the public, and the plaintiff's right to assert that the tower is such with respect to itself and its lessees, rests upon such proof as it has submitted concerning the alleged aeronautical hazard.

The case comes down to the question of whether the plaintiff has proved by the greater weight of evidence that it is suffering irreparable damage because the defendants have violated some law or laws which it is the duty of this Court to enforce.

 There is no conflict of evidence with respect to the facts; thus the necessity disappears for making findings in itemized detail.

 The following recital will suffice to establish the basis for adjudication:

 The Parties

 The plaintiff is a private corporation, owning and operating an air field, of about 250 acres, in Nassau County, adjacent on the north to the well-known Mitchell Field. The air-port lies within two civil airways as designated by the Administrator of Civil Aeronautics; these are paths through the navigable air space of the United States, namely, Green (Los Angeles to Boston) and Blue (Philadelphia to Burlington, Vermont), and is officially designated as a class 2 facility.

 The tenants of the plaintiff, named in the caption, rent hangar space from it, and operate planes in and out of the field in inter and intra state commerce, and otherwise function on the premises in connection with the private business of the plaintiff.

 The defendants are the town named, the Carle Place Water District and the Commissioners thereof. Carle Place is an unincorporated Village of about 6,000 inhabitants, and the laws of the State of New York (Town Law, McKinney's Consol. Laws, c. 62, § 190 et seq.) under and subordinate to the town board.

 The district- in size about 6,000 by 8,000 feet- was created in 1915 when the population of the village was about 1,000.

 By reason of post-war conditions and developments, the latter figure rapidly increased to about 6,000 as of the times material to this cause, which means that residential expansion, in the matter of small homes, took place at a corresponding scale and pace.

 During 1946, at which time water was being purchased from the Westbury Water District, the necessity arose for providing an adequate water supply in village and district in order to meet the needs of the residents for consumption, sanitation and fire protection.

 It is not disputed that such necessity called for remedial measures, and the plaintiff's position is that a different form of construction, i.e., a lower tower, or one providing sub-surface tanks, should have been installed, and for failure by the defendants to employ such expedients, the injunction should be granted, upon legal theories later to be discussed.

 Procedure Followed by the Defendants

 There was nothing clandestine or furtive about the erection of the tower, as will be seen from a summary of the steps taken to comply with applicable legal requirements:

 a. The Commissioners petitioned the town board of the Town of Hampstead to approve the Map and general plan as filed for this improvement comprising: two new wells and pumping units, etc., upon land described; the erection of an elevated storage tank of 500,000 gallons capacity, and the installation of mains, all at an estimated cost of $ 300,000.00, to include the acquisition of the necessary plots of land.

 b. Notice of a hearing thereon was published according to law on December 4, 1947, in the Westbury Times. The notice is quite detailed, in that it states the time and place of the meeting of the town board to 'hear all persons interested therein concerning the same (the plan) and all evidence offered which will enable the Town Board to determine, pursuant to the provisions of the Town Law of New York, whether it is in the public interest to make the improvements described in said map and general plan and estimate, * * * '.

 The said meeting was duly held at the Town Hall, Manhasset, on December 16, 1947, and there being no opposition, the plan was approved.

 The town clerk was required by the provisions of Section 195 of the Town Law to file a certified copy of the determination or order of the town board in the office of the Clerk of Nassau County within 10 days after December 16, 1947, and another similar copy in the office of the state department of audit and control in Albany. In both instances the filing was not done, however, until November 10th and November 18th, 1948, respectively.

 A review at the instance of any person aggrieved by any final determination or order (such as this order of the town board) could be had through certiorari proceedings applied for within 30 days from the date of filing in the County Clerk's office (Id. Par. 2 of Sec. 195). Thus an aggrieved person could have initiated certiorari proceedings within 30 days from November 10, 1948.

 The bearing of that observation is reserved for later comment.

 c. Under the Conservation Law of New York, McKinney's Consol. Laws, c. 65, Section 523, the Water Power and Control Commission conducted a hearing upon the same application by the Commissioners, on February 6, 1948, in the new County Court House, Mineola, pursuant to notice duly published on January 29, 1948, in a designated newspaper (Westbury Times).

 The notice states that it is for the purpose of affording a hearing to 'all persons, waterworks, corporations, municipal corporations, * * * , that may be affected by the execution of the plans of Carle Place Water District for securing a new and additional supply of water, in Carle Place, Town of North Hempstead, * * * , plans for which have been filed with the Water Power and Control Commission at its office 90-79 Sutphin Blvd., Jamaica 2, New York, N.Y., where the same are open for public inspection; and for the purpose of determining whether said plans * * * are just and equitable to the other municipalities and civil divisions of the State of New York and to the inhabitants thereof affected thereby * * * '. The notice calls for the filing of objections as a necessary basis for being heard in opposition to such plans.

 While Roosevelt Field is not in the Town of North Hempstead, it abuts Carle Place, which is, and hence it is an inhabitant as a corporation of a civil division of the State, and is here claiming that it is affected by the plan referred to in the said notice. Such being the case, it could have filed objections to the plan.

 It is not contended that the Water Power and Control Commission took any action or made any recommendation adverse to the said plan as presented by the Commissioners.

 d. The Commissioners, after having duly advertised for bids, contracted for the water supply according to their said plan, discovered that the tower would violate the Building Zone Ordinances of the Town of North Hempstead by reason of its height, and thereupon applied to the Board of Appeals of the Town of Hempstead for a variance as contemplated by Art. XVII, Sections 1740 and 1748, of the Ordinances; this was granted after a hearing on October 6, 1948, of which due notice was published and posted.

 In a suit in the Supreme Court of New York, attacking this action by the Board of Appeals, in which a taxpayer in the Town of North Hempstead was the ostensible plaintiff, a decision was published on December 12, 1949, since the conclusion of this trial, to the effect that the order granting the variance by the Board of Appeals was a nullity because the latter did not act as an appellate body but directly, and at the instance of the Water Commissioners. Gordon v. Town of Hempstead, 93 N.Y.S.2d 250. That being the case, motions to dismiss the complaint were denied. So much must be deemed as having been decided by a court of competent jurisdiction, but it does not obscure the fact that the public officials who are defending this cause have acted throughout upon legal advice; they have sought to perform their public duties according to the requirements of the law and with due proper and detailed notice to all who might be affected by their efforts to provide an adequate supply of water to a community greatly in need thereof.

 That supply had been in successful operation for the year 1949, and the daily pumping at the time of the trial was 425,000 gallons. The entire cost, paid for by a bond issue, was approximately $ 298,000.00, to defray which consumption charges embrace amortization requirements.

 The testimony for the plaintiff is uncontradicted, that its president had no actual knowledge of any of the proceedings which have been recited above on the part of the defendants; it is also true, however, that knowledge was acquired by him late in July of 1948, of the proposed erection of the water tower, which was well in advance of the hearing before the Board of Appeals concerning the variance.

 The Respective Properties

 The diagram which follows has been traced from Exhibit 14 and depicts the runways of the plaintiff's air field, and the water tower as shown on the Exhibit. The dimensions of the runways are taken from the testimony. The gas tank shown below the air field is not involved in this litigation; its precise distance from the air field is not so shown, but its general location is, and it is about as far from the edge of the field as the Water Tower, but to the South. Many references to it in the record justify showing its approximate position.[SEE ILLUSTRATION IN ORIGINAL]

 Roosevelt Field has been operated as an air-port since about 1910 under various names, the present one having been adopted around 1919. As stated, it now contains about 250 acres, but was formerly nearly twice as large. In 1947 the eastern part of some 240 acres or so was sold to a race-track under an option granted in 1945. The two portions apparently were severed, however, in 1936, for in that year it was used as a motor raceway. The portion sold was some 20 feet higher than the part retained, so that if the original property were to be operated as one air field, the easterly 240 acres would have required levelling off to establish a common plane. That of course would have been a simple matter, as we know from what was done in other places during 1941 and subsequent years. This subject is alluded to for its possible bearing upon the plaintiff's election as of 1936, to foreclose itself from extending its runways to the eastward on its own property so as to avoid later developments such as those of which it now complains.

 Roosevelt Field is not equipped with a tower to function in connection with instrument landings; such instructions are obtained by aviators from Mitchell Field.

 The defendants' property on which the Water Tower was erected, was acquired in 1948, after the Town Board had approved of the plan submitted by the Water Commissioners, which was also later, in point of time, than the promulgation of certain standards and regulations of the Civil Aeronautic Authority which is herein ...

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