Posted by: Patricia Salkin | July 10, 2009

Preliminary Injunction Upheld to Prevent Residents from Using Lots for Aircraft Takeoff and Landing

The Town who sought to enjoin the defendants from using the two parcels they owned for purposes aircraft takeoffs and landings without a special permit.  The Town Code defines “airport” as “[a]ny landing area used regularly by aircraft for receiving or discharging passengers or cargo or for the landing and takeoff of aircraft being used for personal or training purposes.”  The defendants argued that since they used a helicopter for personal transportation purposes and they didn’t take off and land on a “regular” basis, the definition did not apply to them.

Although the Court agreed that the definition of “airport” in the Code was ambiguous, and that ambiguity is to be resolved in favor of the property owners, the Court found that here the defendant acknowledged that he purchased one of the two parcels specifically to facilitate takeoffs and landings, and for no other purpose.  Further, he stated that his use of the helicopter was “tantamount to a homeowner driving his vehicle to and from his property.”  As a result, the Court concluded that there was an indicia of “regularity” of use, and this, combined with the town’s concerns about safety hazards and noise, demonstrated a likelihood of success on the merits for purposes of a preliminary injunction.

 Town of Riverhead v. Gezari, 2009 WL 1794798 (N.Y. A.D. 2 Dept. 6/23/09).


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