Opinion
March 20, 1978
In an action, inter alia, to enjoin defendant from operating commercial tennis courts on its residentially zoned property, in which defendant, by way of counterclaim, seeks a declaration that the zoning chapter of the Code of the Town of Huntington is unconstitutional as applied to its property, plaintiffs appeal from a judgment of the Supreme Court, Suffolk County, entered November 30, 1976, which, after a nonjury trial, denied the application for a permanent injunction. Judgment reversed, on the law, with costs; application for injunctive relief granted in accordance with the relief sought therefor in the complaint; and it is declared that the zoning ordinance in question is not illegal and unconstitutional as applied to defendant's property. Action remanded to Special Term for the entry of an appropriate amended judgment in accordance herewith. Special Term held that the ordinance in question was unconstitutional as applied because it permitted tennis courts operated as an ancillary function of a nonprofit private club or school, but did not permit them as profit-making enterprises in this residentially zoned area. Zoning ordinances are presumed constitutional and a questioner has the burden of proving invalidity "`beyond a reasonable doubt'" (Marcus Assoc. v Town of Huntington, 57 A.D.2d 116, 117). Defendant has not met this burden and, accordingly, the judgment must be reversed and an injunction granted (see Matter of Tarolli v Howe, 37 N.Y.2d 865). Titone, J.P., Gulotta, Shapiro and Cohalan, JJ., concur.