Malone Parachute Club, Inc. v. Town of Malone

• Decision Date: 21 April 1994
• Citation: 610 N.Y.S.2d 686,197 A.D.2d 120
• Parties: In the Matter of MALONE PARACHUTE CLUB INC., Petitioner, v. TOWN OF MALONE et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 686

610 N.Y.S.2d 686

197 A.D.2d 120

In the Matter of MALONE PARACHUTE CLUB INC., Petitioner, v. TOWN OF MALONE et al., Respondents.

Supreme Court, Appellate Division Third Department.

April 21, 1994.

Fischer, Bessette & Muldowney (Richard F. Hunter, of counsel), Malone, for petitioner.

Lillian A. Anderson, Malone, for respondents.

Before MIKOLL, J.P., and CREW, WHITE, YESAWICH and PETERS, JJ.

YESAWICH, Justice.

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Third Judicial Department by order of the Supreme Court, entered in Franklin County) to review a determination of respondent Town Board of the Town of Malone which directed petitioner's members to refrain from parachute jumping on certain property owned by respondent Town of Malone.

Petitioner, a recreational organization whose members engage in sport parachuting, has for many years used the Malone Dufort Airport, which is owned by respondent Town of Malone, as a base for its activities. Prior to 1990, in addition to using the airport for takeoff and landing of planes, petitioner leased hangar and building space from the Town and utilized airport land as a "drop zone" for parachute jumping. When petitioner's lease expired in 1990, the Town refused to permit further use of airport land for jumping until petitioner procured liability insurance covering claims arising from personal injury or death of the parachutists themselves, and naming the Town as an additional insured. Thereafter, although petitioner's aircraft took off from the airport, parachutists landed on nearby private property. In June 1992, having become aware that club members were again using the airport for a "drop zone", respondent Town Board of the Town of Malone voted to prohibit such jumping until insurance coverage was obtained and, on July 9, 1992, the Town Board adopted a resolution (No. 9) to that effect.

Petitioner thereafter commenced this CPLR article 78 proceeding claiming that the Town Board's resolution is preempted by Federal law, is without a rational basis and was adopted in violation of Public Officers Law article 7 (the Open Meetings Law). Finding that the proceeding involved a "substantial evidence" question, Supreme Court transferred it to this court (see, CPLR 7804).

Preliminarily, it bears noting that petitioner questions the validity and legality of a Town resolution, not a determination made on the basis of evidence received at a hearing, and hence the questions raised in the petition should have been resolved by Supreme Court (see, CPLR 7804[g]; 7803[4]. In the interest of judicial economy, however, we will retain jurisdiction, convert that portion of the proceeding in which petitioner seeks a declaration of its rights to an action for declaratory judgment and render a decision on the merits (see, Matter of State of New York [State Univ. of N.Y.] v. New York State Pub. Empl. Relations Bd., 181 A.D.2d 391, 394, 586 N.Y.S.2d 662).

Regarding petitioner's preemption argument, the plain fact is that although Congress has legislated broadly and comprehensively in the field of airspace and flight control, and has effectively precluded any exercise of local police power in those areas (see, City of Burbank v. Lockheed Air Term., 411 U.S. 624, 627, 93 S.Ct. 1854, 1856-57, 36 L.Ed.2d 547; Blue Sky Entertainment v. Town of Gardiner, 711 F.Supp. 678, 693-694), an exception has been made for regulations enacted by a municipality in its capacity as proprietor of an airport (see, Santa Monica Airport Assn. v. City of Santa Monica, 659 F.2d 100, 104 n. 5), as long as those regulations do not directly conflict with existing Federal statutes or regulations (see, Skydiving Ctr. of Greater Washington, D.C. v. St. Mary's Co. Airport Commn., 823 F.Supp. 1273, 1283 n. 7). Having this principle in mind, petitioner argues that the resolution at issue does just that--it runs counter to a requirement, imposed by the Federal Aviation Administration (hereinafter FAA) as a condition of the airport's receipt of Federal funds for renovation and repair, that the airport be made available for all aeronautical users, including parachutists, on a nondiscriminatory basis (see, 49 U.S.C.App. § 2210[a]; FAA Airport Compliance Requirements...