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THOMSON INDUSTRIES v. INCORPORATED VILLAGE PORT WASHINGTON NORTH (07/25/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 1969.NY.42684 <http://www.versuslaw.com>; 304 N.Y.S.2d 83; 32 A.D.2d 1072 July 25, 1969 THOMSON INDUSTRIES, INC., APPELLANT,v.INCORPORATED VILLAGE OF PORT WASHINGTON NORTH, RESPONDENT Brennan, Acting P. J., Rabin, Hopkins and Martuscello, JJ., concur in memorandum by the court; Benjamin, J., dissents and votes to reverse the judgment and to declare: (a) that the zoning ordinance does not prohibit the proposed use; (b) that, if the ordinance be construed to prohibit the proposed use, it is unreasonable, arbitrary and unconstitutional as applied; and (c) that subdivision 3 of section 249 of the General Business Law, properly construed, permits plaintiff to apply to the Commissioner of Transportation for a waiver of the spacing requirement, but that pending such waiver plaintiff may not use its property to land and takeoff its helicopter, with an opinion.


Brennan, Acting P. J., Rabin, Hopkins and Martuscello, JJ., concur in memorandum by the court; Benjamin, J., dissents and votes to reverse the judgment and to declare: (a) that the zoning ordinance does not prohibit the proposed use; (b) that, if the ordinance be construed to prohibit the proposed use, it is unreasonable, arbitrary and unconstitutional as applied; and (c) that subdivision 3 of section 249 of the General Business Law, properly construed, permits plaintiff to apply to the Commissioner of Transportation for a waiver of the spacing requirement, but that pending such waiver plaintiff may not use its property to land and takeoff its helicopter, with an opinion.

Memorandum by the Court. Judgment of the Supreme Court, Nassau County, entered February 28, 1968, modified, on the law, by deleting the second decretal paragraph thereof and substituting therefor the following paragraph: "Ordered and adjudged that section 249 of the General Business Law prohibits the use of the plaintiff's property as a helicopter landing site, unless authorization is granted by the governing body of the defendant in accordance with section 249." As so modified, judgment affirmed, with costs to defendant. The findings of fact below are affirmed. Plaintiff, a manufacturer of bearings, brought this action for a judgment declaring (1) that the zoning ordinance enacted by defendant and section 249 of the General Business Law do not prohibit the operation of plaintiff's helicopter and the use of plaintiff's 15-acre parcel as a helicopter landing site and (2) that the absolute prohibition of the use of plaintiff's premises by a helicopter is unconstitutional and void. Special Term determined the issues after a trial in favor of defendant and granted judgment declaring that the zoning ordinance prohibits the use of plaintiff's premises as a helicopter landing site and is valid and constitutional; it dismissed the complaint so far as it sought a declaration with respect to the application of section 249 of the General Business Law upon plaintiff's proposed helicopter operations. We agree with Special Term's findings and conclusions as to the effect and validity of the zoning ordinance. Fairly construed, the ordinance prohibits the activities which plaintiff's operations would necessarily entail. We think, also, that, as construed, the ordinance is constitutional. Where conditions warrant the exercise of the power, the establishment of a heliport or helicopter landing site may be restricted by a municipality. The restriction may constitute a prohibition of such activities when a danger or a nuisance would result if the activities were allowed to be carried on. Here the presence of storage tanks containing gasoline, the proximity of residences, and the loud noise engendered by helicopters were factors which defendant could reasonably take into account in enacting the ordinance prohibiting plaintiff's proposed use of its property located within the Industrial A District. If the ordinance were to be stricken as unconstitutional with respect to plaintiff's property, it would follow that the ordinance would have to be considered unconstitutional as to other property similarly situated; and a pattern of helicopter use within the village might well develop into an intolerable and perilous state. In short, the ordinance represents a fair and reasonable use of the police and zoning power by defendant under the circumstances presented by the record. In addition, it is our opinion that section 249 of the General Business Law applies to the use which plaintiff contemplates. That statute embodies the public policy of the State that "the uncontrolled establishment of an airport or landing field by private persons close to existing privately owned airports or to public airports * * * endangers the lives and property of persons operating aircraft on or near existing privately owned or public airports and of occupants of land in their vicinity" and that the establishment of an airport within the limits marked by the statute is a public nuisance and a hazard. The statute, in giving effect to the public policy of the State, provides that a private airport may not be established except by the authorization of the municipality in which it is to be located and that no such airport may be authorized unless the limits prescribed by the statute are observed; the limits may be waived by the State Commissioner of Transportation upon application of the municipality. The provisions of the statute require that the establishment of a helicopter landing field, privately owned, be authorized by the governing body of defendant (Matter of Underhill v. Board of Appeals of Town of Oyster Bay, 273 App. Div. 788, affd. 297 N. Y. 937; cf. Town of Poestenkill v. Sicho, 54 Misc. 2d 191). The governing body of defendant has neither authorized the establishment of the helicopter landing site by plaintiff nor has it applied to the Commissioner of Transportation for a waiver of the limits stated in the statute (see, also, General Business Law, § 240, subds. 5, 11). Accordingly, the judgment must be modified by declaring that section 249 of the General Business Law applies to plaintiff's premises and prohibits the use of plaintiff's property for a helicopter landing site, unless authorization of the governing body of defendant is granted in accordance with the provisions of section 249. We should declare the rights of the parties under the circumstances of the case presented to the court (CPLR 3017; cf. Lanza v. Wagner, 11 N.Y.2d 317, 334; Skyway Container Corp. v. Castagna, 27 A.D.2d 542).

Benjamin, J. (dissenting).

This action for a declaratory judgment is far-reaching in its economic and sociological impact. It raises the question of whether local communities, however proud and insular they may desire to be, can impede the expanding use of corporate aviation by unduly restricting the landing of helicopters within their boundaries.

 The Village of Port Washington North is a small one. Its northern half is predominantly zoned for residential use. Most of the southern half is zoned Economic Development, but contains several small Business and Residence districts. Virtually separating the two halves is a 40-acre Industrial district.

The plaintiff operates two plants -- one out-of-State and the second in the Industrial Zone property. Two acres of the property are occupied by the plant parcel in the district, is irregular in shape and is bounded on the south by a sand mine zoned Economic Development, on the southwest by a hill zoned Residence "C", on the west by the village line and on the north and east by Industrial Zone property. Two acres of the property is occupied by the plant building which has been in operation since 1963. Two additional acres are black-topped and are used as a parking area. In the rear of the building and northeast of the parking area is a paved circular truck turn-around.

The plaintiff purchased one helicopter to make emergency deliveries of small parts, to transport rapidly key personnel, distributors, licensees and customers and to enhance its sales prestige. At first the parking area was used for the helicopter landings; later the truck turn-around was established as the permanent site for the estimated 10 landings and take-offs a month. The designated area contains no facilities for the helicopter other than minimal fuel storage. The aircraft is not to be stored or serviced on the subject property.

In early 1965 the Federal Aviation Agency indicated approval of the proposed landing site "from an airspace standpoint" on condition that operations would be conducted solely in accordance with visual flight rules and "ingress and egress routes are established, if necessary, to prevent confliction with Sands Point Seaplane Base." These conditions have been met.

Two approach patterns to the landing site have been established. Both originate over Manhasset Bay. Pattern number one runs northwest parallel to but outside the village line, then turns northeast, entering the village at the point where the plaintiff's property is coextensive with the village line, and crosses the plaintiff's building to the landing site. Pattern number two runs northeast (crossing the village line from Manhasset Bay) along the length of a large pond which makes up the southernmost portion of the village, turns northwest, crosses the sand mine and proceeds straight to the landing site.

The village directed the plaintiff to cease all helicopter operations, contending the use violated both the local zoning ordinance and section 249 of the General Business Law. Special Term sustained the village's determination; and the majority is affirming Special Term's decision.

Article VIII-A of the zoning ordinance prohibits the erection, alteration or use of a building or a lot or premises for the purpose of an "airfield" or a "heliport" in the Industrial A district. Neither "airfield" nor "heliport" is defined in the ordinance. Nor does the evidence clearly define those terms. In view of that ambiguity, the ordinance must be construed strictly against the village and in favor of the property owner, since it is in derogation of common-law rights (Matter of 440 E. 102nd St. Corp. v. Murdock, 285 N. Y. 299, 304; Matter of Glenel Realty Corp. v. Worthington, 4 A.D.2d 702). Therefore, without attempting to set forth a judicial definition of the word "heliport", it must be concluded that, whatever was intended to be prohibited by the ordinance, the prohibition did not encompass the plaintiff's proposed use.

Assuming, arguendo, that the proposed use is prohibited by the ordinance, in my opinion the ordinance as applied to the subject property is unconstitutional.

While it is within the scope of the zoning power to regulate the use of land as sites for the take-off and landing of aircraft (see 3 Rathkopf, Law of Zoning and Planning, p. 427; Ridgewood Air Club v. Board of Adjustment of Vil. of Ridgewood, 136 N.J.L. 222), such regulation (or in this case actual exclusion) is invalid if it lacks a rational basis (see, e.g., Yorkavitz v. Board of Township Trustees of Columbia Township, 166 Ohio St. 349; People v. Martins of Hempstead, 55 Misc. 2d 802, and cases cited therein). And on this record I believe the prohibition of helicopter operations, as applied to the plaintiff's property, is arbitrary and unreasonable, bears no reasonable relationship to the health, safety and general welfare of the community, and therefore lacks a rational basis.

We need not here concern ourselves with indiscriminate flights over the village. In my opinion, whether or not the Federal Government has pre-empted the area of air flights and procedures (cf. Allegheny Airlines Inc. v. Village of Cedarhurst, 238 F. 2d 812, with Loma Portal Civic Club v. American Airlines, 61 Cal. 2d 582; see, also, American Airlines v. Town of Hempstead, 398 F. 2d 369), any attempt by a local government to impose higher minimum altitudes or to ban flights within the navigable airspace, or, it follows, to bar flights made above the prescribed minimum altitudes from any portion of the airspace above it would have to be struck down as contrary to Federal law (U. S. Code, tit. 49, §§ 1304, 1301, subd. [24]; Code of Fed. Reg., tit. 14, § 91.79; cf. United States v. Causby, 328 U.S. 256; Griggs v. Allegheny County, 369 U.S. 84; Matter of Presnell v. Leslie, 3 N.Y.2d 384, 392). Further, such attempts would be invalid under New York law. The village derives its power to act from the State. Although the village is given the special power to regulate "aeroplanes" (Village Law, § 89, subd. 44), generally, a grant of the power to regulate is not a grant of power to prohibit (see People v. Martins of Hempstead, 55 Misc. 2d 802, supra). Moreover, in section 245 of the General Business Law, the State has said that helicopters may fly over both congested and noncongested areas, provided the conditions with respect to the statutory minimum altitudes therein prescribed are complied with; and it would be beyond the power of a village to nullify that law by prohibiting helicopter flights from any portion of this airspace above the minimum altitude fixed by the statute.

In addition, "The zoning power * * * must operate in relation to the use of land and not for the accomplishment of purposes extraneous to that relation. If safety factors or health reasons require zoning controls, they must involve safety and health characteristics which relate to the land under the regulation" (De Sena v. Gulde, 24 A.D.2d 165, 171). So, because the village may not prohibit helicopter flights from any portion of the airspace above the minimum altitude levels, it may not use the zoning power to that end. Yet it is clear that regulating the use of land for aviation landing purposes is a legitimate exercise of the zoning power. The conflict, then, would result not in removing the zoning power in ...


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