RICHARD JUMP et al. v. TOWNSHIP OF ANDOVER, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6608-03T26608-03T2

RICHARD JUMP and RRL GROUP

INC. d/b/a NEWTON AIRPORT,

Plaintiffs-Respondents/

Cross-Appellants,

v.

TOWNSHIP OF ANDOVER, JAMES

CUTLER TOWNSHIP ZONING

OFFICIAL, THE PLANNING BOARD

OF THE TOWNSHIP OF ANDOVER,

THE ANDOVER TOWNSHIP BOARD

OF ADJUSTMENT, CARLADEAN

KOSTELNIK, and PEOPLE

AGAINST AIRPORT EXPANSION,

a NEW JERSEY Non-Profit

Corporation in information,

a/k/a PAAX,

Defendants-Appellants/

Cross-Respondents.

______________________________

 

Argued February 7, 2006 - Decided March 9, 2006

Before Judges Kestin, Lefelt and Seltzer.

On appeal from the Superior Court

of New Jersey, Law Division, Sussex

County, Docket No. 130-01.

Richard A. Rafanello argued the cause

for appellant/cross-respondent

Township of Andover (Shain, Schaffer &

Rafanello, attorneys; Mr. Rafanello,

of counsel; Nancy Stewart, on the

brief).

Edward F. Broderick, Jr. argued the

cause for respondents/cross

appellants Richard Jump and RRL

Group (Broderick, Newmark

& Grather, attorneys; Mr. Broderick,

of counsel, and on the brief).

Thomas F. Collins, Jr. argued the

cause for defendants/respondents

Planning Board of the Township of

Andover and the Andover Township

Board of Adjustment (Vogel, Chait,

Collins & Schneider, attorneys;

Mr. Collins, of counsel; David H.

Soloway, on the brief).

PER CURIAM

In this appeal we determine (1) whether the motion judge correctly vacated a 1969 consent judgment that limited aeronautical activities at the Newton Airport to those in existence in 1969, and (2) whether the Airport's State license precludes Andover Township from restricting activities that are authorized by the license. We answer the first question affirmatively and the second negatively.

I.

The pertinent facts can be summarized as follows. The Jump family has owned and operated the Newton Airport since the 1950s. The current owners are plaintiffs Richard Jump and the RRL Group, a family corporation that manages operation of the airport. In 1962, Andover Township, in its first zoning ordinance, zoned the airport property as Rural Agricultural. By 1966, however, the State had licensed the airport as a "Class 5 Public Landing Field," permitting visual flight from dawn to dusk and public usage of the facility.

Subsequently, in 1968, Andover sued the Jumps and Newton Airport, alleging that the Airport was operating in violation of the zoning ordinance and that its operations should be limited to those existing in 1962 when the first Andover zoning ordinance was adopted. Andover and the Jumps settled this dispute, with the assistance of the court, and executed a consent judgment in 1969.

The parties agreed in the judgment that "the nonconforming [airport] use and structures" may continue to be used and operated. However, the consent judgment specifically precluded "jet aircraft and more than two-engine aircraft," the building or employing of a "control tower," the conducting of instrument flight rules operations, flying at times "other than dawn-to-dusk," "charter service[s]; aerial sightseeing tours; flying exhibitions; [and] flight student training or flight school or flying club activities." It further ordered "that no additional facilities for shelter, supply and repair of aircraft w[ould] be constructed or installed" without proper application to the appropriate municipal authority.

In 1983, the State replaced Newton Airport's Class 5 license with a Fixed Wing Aeronautical Facilities, "Airport-Public Use" license. N.J.A.C. 16:54-1.2(a)(1)(i). Newton Airport was identified on aviation maps and subsumed into the aviation system over which the State exercises its regulatory authority.

In 1986, New Jersey's Division of Aeronautics, within the Department of Transportation, notified Andover that pursuant to the Air Safety and Zoning Act, N.J.S.A. 6:1-80 to -88, it had adopted N.J.A.C. 16:62, which required each municipality containing an airport within its borders to recognize the airport as "a permitted land use" and to incorporate the standards of the Act into its local ordinances.

Subsequent to this notification in 1988, Andover revised its zoning ordinance pursuant to the new Act and the regulations that had been promulgated pursuant to the Act, N.J.A.C. 16:62-1.1 to -11.1. The revised ordinance recognized Newton Airport as a permitted use, however, the ordinance further provided that certain "structures, planes, and activities are not permitted." Andover then specified, with few exceptions, all of the limitations that were contained in the 1969 consent judgment.

The minutes of Andover's Township Committee meeting that adopted the revised ordinance stated that the "ordinance was first reviewed by the state Director of Aeronautics as well as the Attorney General, and returned . . . with their approvals." A subsequent letter by the Director of the Office of Aviation to Newton Airport disclosed that the Office of Aviation did review and compare the ordinance against the 1969 consent judgment to find "that the ordinance does not place additional restrictions on the airport."

In 1997, a dispute arose over whether plaintiffs were violating the zoning ordinance by allowing a glider flight school to operate at the Airport. Jump was found guilty of violating the municipal ordinance and expanding a non-conforming use. Jump appealed to the Law Division. A Superior Court judge in 1999 reversed the violation and found Andover did not have authority to apply its land use ordinances to activities within the Airport boundaries. The judge further instructed Andover that to regulate uses on the airport property, the Township had to apply to the Department of Transportation and demonstrate that its requirements were reasonable.

After another dispute arose in 1999, regarding the operation of a flight school at the Airport, pursuant to the judge's instructions, Andover contacted the Department requesting a legality determination. The Department responded that because it had not been a party to the 1969 litigation, it was "not the appropriate forum in which to adjudicate the rights of the parties."

In April 2000, still another dispute arose when Sky's the Limit leased a portion of the Airport to conduct a skydiving and parachute drop business. After Sky's the Limit applied to Andover for permission to conduct this new business, the Board of Adjustment denied the application, finding the proposed new business not permitted. Although the business was not approved, skydiving continued on the property and Sky's the Limit continued to maintain offices in seven trailers located at the airport. Because the trailers were not in use when the 1969 judgment was entered, the zoning officer issued plaintiffs five summonses for failure to obtain zoning permits for the trailers, as well as an airplane hangar and a generator that were also associated with the skydiving operation.

In 2001, this dispute came to a head when plaintiffs sued Andover, Andover's zoning official, the planning board and the board of adjustment, claiming that the 1969 consent judgment does not preempt the "Airport Facilities Act," and the regulations promulgated at "N.J.A.C. 16:54-1.1 et seq." Consequently, plaintiffs requested that the 1969 judgment be vacated. Plaintiffs further claimed Andover lacked authority to regulate aeronautical activities at the Airport and that Andover's prosecution of plaintiffs for the use of its property, which was consistent with N.J.A.C. 16:54, should be enjoined. Andover answered, contending that the 1969 judgment should remain in effect and that plaintiffs must apply to Andover for approval of any parachuting-operation plans at the Airport.

After discovery was completed, both parties moved for summary judgment, and the matter came before Judge Farber. The judge granted both applications in part by dismissing that portion of plaintiffs' complaint that claimed Andover was without authority to regulate aeronautical activities at the Airport, and dismissing that portion of Andover's summary judgment motion that sought continuation of the 1969 consent judgment. The judge held that "[p]laintiffs may use the airport property in accordance with the Township's 1988 zoning ordinance and the licenses issued to it by the State"; "[p]laintiffs may only alter its uses or the facilities at the Newport Airport in accordance with Title 16" of N.J.A.C.; and to the extent plaintiffs attempt to alter such uses without compliance with the regulations, Andover may prosecute the violations.

After reconsideration was denied, both parties appealed. Plaintiffs argue that Andover has no authority to restrict its aeronautical activities, and Andover argues that the 1969 consent judgment should not have been vacated. We first address the consent judgment and then proceed to resolve the authority issue.

II.

Andover argues that Judge Farber erroneously concluded that the 1988 amendment to the zoning ordinance, which was enacted to harmonize Andover's ordinance with N.J.A.C. 16:62-2.1(e), rendered the consent judgment void. In addition, Andover asserts that plaintiffs failed to demonstrate any basis to vacate the judgment under R. 4:50-1.

The 1969 consent judgment provided that Newton Airport preceded Andover's 1962 zoning ordinance and that therefore "the nonconforming use and structures [could] continue as then licensed . . . [but that] no change [would] be sought in form of license from Class 5 Landing Field." In 1988, Andover revised its zoning ordinance to comply with N.J.A.C. 16:62-2.1(e), which provided that municipalities with airports within their boundaries "as non-conforming land use within the context of their ordinances or master plans of development, shall amend those ordinances or plans to eliminate that non-conforming status."

The 1988 ordinance permitted the airport in the zone district, but provided that "the following structures, planes and activities are not permitted:[]" and listed substantially the same structures, planes, and activities that were not permitted at Newton Airport under the 1969 consent judgment, with some differences. The ordinance language, as contrasted with the judgment, precluded only an "additional control tower," as compared with total preclusion of any control tower contained in the judgment and eliminated the judgment's language that prevented paving the last 200 feet of landing or runway.

Judge Farber interpreted the adoption of the 1988 zoning ordinance as an "acknowledgment that the 1969 Judgment was no longer valid," and that it "replaced and superseded the 1969 Judgment." We believe that Judge Farber's conclusion was a reasonable and plausible interpretation of the factual events.

In fact, a comparison of the language used in the consent judgment regarding the control tower with the ordinance's language on the same subject is instructive. While the judgment prohibited any control tower from being constructed, the ordinance only precluded the construction of an additional tower. This change thus recognizes or authorizes the construction of one control tower, which was originally prohibited by the judgment. The modification of the language to preclude an "additional control tower" further supports Judge Farber's conclusion that the ordinance superseded the judgment.

Contrary to Andover's contention, we do not view the letters from the Office of Aviation or the Department of Transportation, which were issued over the years, the last as recently as June 5, 2002, as confirming the continued validity of the judgment after 1988. At best these letters recognize the existence of the judgment, that litigation over its validity belongs in Superior Court, and that any agreement between Andover and plaintiffs has no bearing on the "State's regulatory authority over the airport."

Judge Farber also found that Andover's ordinance revision in 1988 was "effectively a release of [plaintiffs] by the Township from the 1969 Judgment. [See R. 4:50-1(e)] Alternatively, the change of law satisfies the 'other reasons justifying release' [under] R. 4:50(f)."

As we explained in Toll Bros. v. Twp. of W. Windsor, 334 N.J. Super. 77 (2000), aff'd, 173 N.J. 502 (2002), "[a] change in law warrants modification where a statute or court decision 'has changed to make legal what the decree was designed to prevent.'" Id. at 100-01 (quoting Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 388, 112 S. Ct. 748, 762, 116 L. Ed. 2d 867, 888 (1992)). Besides modification, a consent decree may also be terminated, when appropriate, considering the change in facts or law that has occurred. See Toll Bros., supra, 334 N.J. Super. at 101.

N.J.A.C. 16:62-2.1(e), which required the municipality to amend its ordinance to bring the airport into conforming use, is a significant change in law. See Mt. Olive Complex v. Twp. of Mt. Olive, 340 N.J. Super. 511, 528, 530 (App. Div. 2001). The adoption of the amended ordinance by Andover, in conformity with the regulatory change, essentially undercut or removed the legal foundation for the consent judgment's limitations on the Airport's further development. See Urban v. Planning Bd. of Manasquan, 124 N.J. 651, 656 (1991) (explaining that expansion of nonconforming uses is not favored); Dresner v. Carrara, 69 N.J. 237, 240 (1976) (permitting a business to continue operating without off-street parking as a nonconforming use after adoption of an ordinance requiring off-street parking).

After Andover amended its ordinance, the Airport became a permitted use. The tracking in the ordinance of almost the identical limiting language contained in the judgment constituted an attempt by Andover to save as much of the consent judgment's restrictions as possible after the basis for the judgment was completely undercut by the regulatory change.

III.

Plaintiffs also argue that the trial court erred when it held that the New Jersey Aviation Act, N.J.S.A. 6:1-20 to -62, does not preempt local land use ordinances. According to plaintiffs, "[t]he existence of a valid license to operate a public use airport . . . precludes regulation by municipal zoning boards over 'aeronautical uses' allowed by such a license at the airport," and although a licensee must provide "notice of an intended aeronautical use there is no need to file an 'application' with a municipal zoning board for permission to use the airport facility for that which it has been licensed."

The regulatory scheme adopted by the Commissioner and the relevant case law interpreting the Commissioner's powers over aviation in this State do not comport with plaintiffs' argument. Plaintiffs attempt to limit the existing cases to aeronautical facilities before licensing. Once licensed by the State, plaintiffs argue the municipality can not limit any licensed airport's activity, and no prior judicial decision supports Andover's contrary position. We do not read the controlling cases in this limited fashion.

As our Supreme Court has pointed out, "the Aviation Act of 1938 is preemptive," but the Commissioner of Transportation is not free to ignore conflicting provisions of a local zoning ordinance. Garden State Farms, Inc. v. Mayor Bay, II, 77 N.J. 439, 451-53 (1978). Neither the federal nor the State legislation dealing with aviation was intended to be exclusive in the field. Id. at 449, 452. Although the State, acting through the Commissioner of Transportation, maintains "the ultimate power and responsibility of determining where aeronautical facilities may be located," id. at 450 (internal quotations omitted), "the Legislature desired to leave to the municipalities certain responsibilities over the area of land use, development and location of aeronautical facilities." Id. at 452. Local power over the use of land for aeronautical purposes has not been completely displaced. Id. at 453. But municipalities "must not exercise their zoning authority so as to collide with expressed policy goals of the State legislation, N.J.S.A. 6:1-20, or the final decision of the Commissioner." Id. at 454.

The Commissioner is "to pay due attention to the lawful zoning expressions of local governments and not '[] act in an unreasonable fashion so as to arbitrarily override all important legitimate local interests.'" Id. at 455 (quoting Rutgers v. Piluso, 60 N.J. 142, 153 (1972)). "[A] failure on the Commissioner's part to weigh conscientiously local interests, to examine carefully whether the proposed aviation facility is compatible with the surrounding land uses and to consult the local ordinances and authorities in making its licensing decision would constitute an abuse of discretion." Id. at 456.

The Commissioner has adopted regulations to implement the relationship between local interests and aeronautical concerns. N.J.A.C. 16:54-1.1 to -10.1. "All persons proposing the opening of a new aeronautical facility [or] the alteration . . . of, an existing aeronautical facility" must submit an application to the Commissioner that demonstrates "conformance with existing zoning and land use ordinances." N.J.A.C. 16:54-2.1(a)6 (emphasis added). The regulations define "alteration" as "any construction, demolition, or modification to the surface, design, or operational areas of an aeronautical facility which affects, increases, or diminishes its operational capabilities." N.J.A.C. 16:54-1.3. The application must also include "the final determination, from the appropriate planning authority having jurisdiction, regarding the proposed changes or new facility." N.J.A.C. 16:54-2.1(a)6i. The rule also provides that "no final licensing decision will be made until the Department reviews and considers the final determination made by the appropriate planning authority having jurisdiction." Id. at 6ii.

These rules requiring the applicant to submit its plans for proposed airport changes to local authorities, N.J.A.C. 16:54-2.1(a)6, were in existence in 1999 and therefore we disagree with the prior Law Division judge's decision, in December of that year, precluding municipalities "from enacting zoning ordinances regarding the use of the property within the airport." The judge was mistaken when she found there was "no specific provision here that requires the licensees to make application to municipal zoning boards for any expanded or changed uses within the boundaries of the airport." See N.J.A.C. 16:54-2.1(a)6 (Supp. April 6, 1998); 30 N.J.R. 1629 (May 4, 1998); 25 N.J.R. 2719 (July 6, 1993).

Thus, the Commissioner must consider and weigh the local concerns against the aeronautical needs contained in any application for alteration of an airport. There may be situations where the local zoning concerns relate to public safety and outweigh proposed recreational aeronautical activities. On the other hand, those aeronautical activities that must be observed nationwide or pertain to safety or public usage of air transportation, may predominate over many restrictive local zoning concerns. See N.J.A.C. 16:54-2.5(a). In addition, any proposed change or modification that does not affect, increase, or diminish the airport's operational capabilities would not meet the regulatory definition of alteration, N.J.A.C. 16:54-1.3, and consequently would be a matter solely for local concern and review.

It is clear, however, that while the Commissioner must carefully consider the local municipality's zoning concerns, the "'ultimate authority over the regulating and licensing of aeronautical activities and facilities,'" remains with the Commissioner. Tanis v. Twp. of Hampton, 306 N.J. Super. 588, 599 (App. Div. 1997) (quoting N.J.A.C. 16:54-1.1(b). The Commissioner has sufficient statutory authority "to override local zoning decisions," id. at 600, and retains "supervision over aeronautics within this State, including, but not by way of limitation, the avigation, flight and operation of aircraft, the establishment, location, maintenance, operation, size, design, repair, management and use of airports . . . ." N.J.S.A. 6:1-29.

Finally, we leave for another day the question of what process is due when the Commissioner receives an application for alteration of an airport that has been denied by the appropriate local zoning or planning authority. We await development of a proper record before deciding whether such a dispute must be transmitted to the Office of Administrative Law as a contested case, N.J.S.A. 52:14B-2(b); N.J.S.A. 52:14F-7a; N.J.A.C. 1:1-8, or may be resolved without a trial-like proceeding.

 
Affirmed.

The original complaint also included the Department of Transportation among the defendants, but the parties subsequently submitted a stipulation of dismissal releasing the Department from this litigation.

Notably, since the agreement, the main runway has been extended to 2,550 feet. In October 2004, the runway was repaved under a shared grant agreement with the State.

Because we have found that the consent judgment was correctly vacated by Judge Farber, we need not discuss whether the judgment constituted illegal contract zoning. Cox, New Jersey Zoning and Land Use Administration, 34-8.2(b), p. 769 (2005).

Because of the broad general attack plaintiffs levy in this appeal, we do not address the land and license approval steps necessary for any specific development plan plaintiffs have for the existing Airport.

The Commissioner also supervises "landing fields, landing strips, heliports and helistops, sport parachuting centers, air markings and other avigational facilities, and the establishment, operation, management and equipment of fixed base operators." N.J.S.A. 6:1-29.

(continued)

(continued)

17

A-6608-03T2

March 9, 2006