Thomson Industries, Inc. v. Incorporated Village of Port Washington North

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 1073 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 ease 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).