APPLICATION OF TRUMP NATIONAL GOLF CLUB COLTS NECK L.L.C FOR A LICENSE TO ESTABLISH A RESTRICTED USE HELISTOP AT ONE TRUMP NATIONAL BOULEVARD TOWNSHIP OF COLTS NECK MONMOUTH COUNTY, NEW JERSEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3966-11T1

APPLICATION OF TRUMP NATIONAL

GOLF CLUB COLTS NECK, L.L.C.

FOR A LICENSE TO ESTABLISH A

RESTRICTED USE HELISTOP AT

ONE TRUMP NATIONAL BOULEVARD,

TOWNSHIP OF COLTS NECK, MONMOUTH

COUNTY, NEW JERSEY

___________________________________

December 12, 2012

Argued December 5, 2012 - Decided

Before Judges Nugent and Haas.

On appeal from the Department of Transportation, Division of Aeronautics.

Michael B. Steib argued the cause for appellant Township of Colts Neck.

Lani M. Lombardi argued the cause for respondent Trump National Golf Club Colts Neck, L.L.C. (Cleary, Giacobbe, Alfieri, Jacobs, L.L.C., attorneys; Ms. Lombardi, on the brief).

Laszlo M. Szabo, Deputy Attorney General, argued the cause for respondent New Jersey Department of Transportation (Jeffrey S. Chiesa, Attorney General, attorney; Beth Leigh Mitchell, Assistant Attorney General, of counsel; Carl A. Wyhopen, Deputy Attorney General, and Mr. Szabo, on the brief).

PER CURIAM

Appellant Township of Colts Neck (Township) appeals from the March 1, 2012 final determination of the Director of the Division of Multimodal Services, Department of Transportation (DOT), to grant a Helistop-Restricted Use license to Trump National Golf Club Colts Neck, LLC (Trump). After reviewing the record in light of the contentions advanced on appeal, we affirm.

I.

On March 2, 2011, Trump submitted an application to DOT for a Helistop-Restricted Use license. A "helistop" is defined in DOT's regulations as

an area of defined dimensions, either at ground level or elevated on a structure designated for the landing or take off of helicopters, but not limited in use to that sole purpose. Helistops generally provide minimal or no support facilities and may be located in multiple use areas such as parking lots, dock areas, parks, athletic fields or other suitable open areas.

[N.J.A.C. 16:54-1.3.]

Trump proposed to locate the helistop roughly in the middle of the golf course, just north of the clubhouse facility and adjacent to the practice green. The golf course is located on approximately 310 acres and is bounded by Route 537 to the north, Route 34 to the east, and Route 18 to the south. The helistop would consist of porous pavers with a grass-covered surface designed to look like a lawn. The primary approach path would enter over a military facility to the south, cross over Route 18, and then descend over wooded golf course property to the helistop.

As required by N.J.A.C. 16:54-2.1(a), Trump obtained Federal Aviation Administration (FAA) airspace allocation approval for the helistop. The FAA "determined that the proposed private-use landing area will not adversely affect the safe and efficient use of navigable airspace by aircraft." As part of an application, an applicant must provide "the final determination, from the appropriate planning agency having jurisdiction[.]" N.J.A.C. 16:54-2.1(a)6i. In order to comply with this requirement, Trump applied to the Township's Zoning Board of Adjustment (Board) for a use variance and site plan approval for a helistop. The Board held public hearings on the application on March 17, April 21, May 19, and June 16, 2011. The Board denied Trump's application in a resolution adopted on July 21, 2011. In the resolution, the Board noted that the Township's zoning ordinance expressly prohibited helistops. It further found there would be a significant impact on the rural character of the area because of the noise that would be generated by helicopters.1 On September 1, 2011, Trump submitted the Board's resolution, and a detailed summary of the testimony provided at the four days of public hearings, to DOT as part of the helistop application process.

While the Board objected to Trump's proposal, the Monmouth County Planning Board approved it. In a January 23, 2012 decision, this agency found "there are no impacts to county roads or county bridges by this application."

As required by N.J.A.C. 16:54-2.3, Trump published a public notice of its license application, inviting written comments or objections regarding its application. Eighteen public comments in opposition to the application were received and made part of the record. The Board's attorney also made two separate submissions to DOT concerning the proposed helistop. These submissions included a comprehensive position paper on behalf of the Township in opposition to the application and a detailed response to the submission made by Trump's attorney.

On February 3, 2012, DOT determined that Trump's license application was complete. Two of DOT's aeronautical operations specialists were assigned to review the application against the licensing criteria set forth in N.J.A.C. 16:54-2.5(a). A third specialist tabulated the results of this review. Both of the reviewing specialists found that the project would have no negative impact on public health safety and welfare. They recommended that the application be approved, subject to certain restrictions.

The application was then reviewed by the Director of DOT's Division of Multimodal Services (Director). On March 1, 2012, the Director approved Trump's application for a Helistop-Restricted Use license. On May 1, 2012, the Director filed a written amplification of his findings of fact and conclusions of law pursuant to Rule 2:5-1(b).

The Director determined that Trump's licensing application did not present a "contested case" under the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15, and therefore, there was no need to conduct an adversarial hearing. The Director also declined to conduct a "public informational hearing" as permitted under N.J.A.C. 16:54-2.4, because there were no material facts in dispute and credibility was not an issue in the application. Because the "issues were clearly framed through the submissions of [Trump's] attorney, the [Township's] Zoning Board attorney and the [Board's] resolution denying the application for a variance[,]" the Director found that a hearing was not required.

The Director considered all of the factors set forth in N.J.A.C. 16:54-2.5(a) in approving the application. These factors included the "public health safety and welfare, aviation development, surrounding land uses, local land use ordinances, topography, noise characteristics, air traffic patterns proposed, air operation demand, aircraft movement operations, capacity of nearby aeronautical facilities, [and] economic factors[.]" Based "on aeronautical considerations," the Director found Trump was "entitled to a helistop license."

However, the Director went on to specifically consider the Township's, the residents', and the Board's objections and specifically addressed them in his decision. The Director found:

Further consideration of the application, in light of [the Township's] land use ordinance, was guided by the decision in Garden State Farms, Inc. v. [] Bay, 77 N.J. 439 (1978). Based on the Garden State Farms case, it was determined that there could be an appropriate use of the helistop taking into account local sentiment, by adding restrictions to any license eventually granted to the applicant.

Thus, the Director imposed the following six restrictions on Trump's license:

1. No more than 48 non-emergency landings and take-offs per year.

2. Site to be used by Donald Trump, his family, or his designee during daylight hours only.

3. Night-time use only for emergencies (Medivac, law enforcement, etc.).

4. Due to the nearby conservation easement, site shall be regularly monitored for vegetative growth and use of site shall be terminated if such growth creates a safety hazard to helicopter operations.

5. No aircraft refueling permitted.

6. Approach/departure paths shall follow documented routes whenever possible.

In imposing these severe restrictions on Trump's use of the helistop, the Director explained:

The stated restrictions in the license application approval are meant to avoid the commercial type use of the helistop envisioned by the community's objections. The number of flights is severely limited in frequency and the limitation as to who can use the helistop should further diminish the number of flights. Only daylight use of the facility, except for emergencies is permitted, precluding any nighttime flight sounds.

The Director further stated:

The primary approach/departure path is over State Highway 18. The secondary approach/departure path travels some 1,000 feet over golf course property before encountering any residences, which should place helicopter traffic at a substantial altitude when over any residence. The approved restricted license preserves the authority of the Commissioner over aviation in this State, N.J.S.A. 6:1-29, while taking into account the local sentiment regarding this specific facility in the exercise of that authority.

Consistent with these findings, and subject to the stated restrictions, the Director granted Trump's application. This appeal followed.

II.

On appeal, the Township argues that the Director should have conducted either a contested case hearing or an informational hearing before determining whether to grant Trump's license application. The Township also contends the Director's decision to grant the application was arbitrary and capricious because he allegedly failed to give "due consideration to [its] local Ordinance and authorities."

Our scope of review in an appeal from a final decision of an administrative agency is strictly limited. In re Taylor, 158 N.J. 644, 656 (1999). We must sustain the agency's action in the absence of a "'clear showing' that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record[.]" Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009).

When reviewing a final decision of an administrative agency, we consider whether there is sufficient credible evidence to support the agency's factual findings. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988). We must affirm the agency's factual findings if we are satisfied "that the evidence and the inferences to be drawn therefrom support" the agency's decision. Id. at 588. Applying this standard of review to the issues presented by the Township, we discern no basis to disturb the Director's decision to grant a Helistop-Use Restricted license to Trump.

The Director did not act arbitrarily, capriciously, or unreasonably by declining to conduct either a contested case hearing or an informational hearing in connection with the license application. The APA defines a "contested case" as

a proceeding, including any licensing proceeding, in which the legal rights, duties, obligations, privileges, benefits or other legal relations of specific parties are required by constitutional right or by statute to be determined by an agency by decisions, determinations, or orders, addressed to them or disposing of their interests, after opportunity for an agency hearing[.]

[N.J.S.A. 52:14B-2(b).]

The Township correctly notes that it has been granted the statutory authority to enact zoning ordinances and make decisions concerning them. N.J.S.A. 40:55D-62. However, the Township has not identified any statute that requires the Director to conduct a contested case hearing when reviewing an application for a helistop license. Thus, the Township has no statutory right to a hearing.

Similarly, the fact that the Township's right to enact zoning ordinances flows from a State constitutional provision, N.J. Const. art. IV, 6, 2, does not grant the Township a constitutional right to a hearing under the circumstances of this case. As a matter of constitutional right, it is well established that "[t]he requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." Bd. of Regents v. Roth, 408 U.S. 564, 569, 92 S. Ct. 2701, 2705, 33 L. Ed. 2d 548, 556 (1972).

Obviously, the Township does not have a "liberty interest" that has been implicated by the helistop application. Likewise, the Township has no protected property interest. A person or entity that is merely interested in, or potentially affected by, the outcome of an administrative decision does not have a constitutional right to a contested case-type hearing concerning an application. Elizabeth Fed'l S. & L. Ass'n v. Howell, 24 N.J. 488, 505-06 (1957). We have held that, in the absence of a statute granting a right to a hearing to an objector in a licensing proceeding, the objector must possess more than a generalized property right shared with other property owners to establish a constitutional right to a hearing. In re Amico/Tunnel Carwash, 371 N.J. Super. 199, 211-12 (App. Div. 2004)(holding that neighboring property owners did not have a constitutional property interest sufficient to require a hearing on a variance application to the New Jersey Meadowlands Commission).

Therefore, the individuals who submitted written objections to the application had no particularized property interest affected by the application. Similarly, the Township, either as the representative of these residents or of its own accord, had no particularized property interest that required a contested case hearing prior to the Director's decision.

Moreover, there was no need for an adversarial-type hearing because the only fact that was apparently in dispute between the parties was whether, if the secondary flight path was used, there was 800 or 1,200 feet between the helistop and the nearest residence. However, because this was the secondary, rather than the primary, flight path and because of the restrictions placed upon the license as to its use, this can hardly be deemed a "material fact" requiring a contested case hearing to resolve.

The Director also did not abuse his discretion by deciding not to conduct a public informational hearing as permitted by N.J.A.C. 16:54-2.4(a). This regulation provides that "[t]he Commissioner may require . . . public hearings and/or informational meetings to be held regarding an applicant for license." (Emphasis added). Therefore, and contrary to the Township's contention, such a hearing is neither automatic nor mandatory in all cases.

Here, the Director explained that a hearing was not required because there was no dispute as to any material fact. Trump's application materials were made available to the Township as part of the review process. The Township made two detailed submissions concerning the application and was fully able to address all of the criteria for licensure set forth in DOT's regulations. The public had the opportunity to submit written comments concerning the application and eighteen such comments were received and reviewed.

The Township failed to demonstrate that it was denied the opportunity to present any relevant fact or argument in support of its opposition to the application or that an informational hearing was needed to enable it to do so. Therefore, the record amply supports the Director's determination that an informational hearing was not required.

Moving to the substantive issues raised by the Township on appeal, we find no merit to the Township's contention that its zoning ordinance barring helistops and the Board's resolution denying Trump's application for a use variance prohibited the Director from approving the license. Contrary to the Township's argument, the Director's decision was plainly in accord with the Supreme Court's decision in Garden State Farms, supra.

DOT is responsible for supervising aeronautics within New Jersey. N.J.S.A. 6:1-29. It issues licenses to aeronautical facilities, including helistops, when such licensure is "consistent with public health, safety and welfare, and the development of aeronautics in the State." N.J.A.C. 16:54-2.5(a). Municipalities, on the other hand, have the authority to enact zoning ordinances that determine how land may be used within their borders. N.J.S.A. 40:55D-62.

The Supreme Court addressed the interplay between DOT's licensing authority and the zoning power of municipalities in Garden State Farms. In that case, the municipality passed a zoning ordinance that prohibited the principal or accessory use of land for the purpose of accommodating helicopter take-offs and landings. Supra, 77 N.J. at 444. The license applicant brought suit seeking a declaration that the ordinance was preempted by the State's statutory authority over the location of aviation facilities. Ibid.

The Supreme Court disagreed with the applicant on the preemption issue, but held that the "dominant legislative intent of the Aviation Act is to repose in the Commissioner of Transportation the ultimate authority as to the placement of aeronautical facilities[.]" Id. at 454. The Court determined that, although the State's aeronautical authority did not preempt a municipality's authority to adopt zoning ordinances pertaining to aeronautical facilities, DOT was vested with the final authority to approve and license such facilities. Ibid. Because of this, the Court held that a local zoning ordinance could not operate as a bar to DOT's grant of a license for an aeronautical use. Ibid. Therefore, a municipality cannot exercise its zoning authority "so as to collide" with, or supersede, the final decisions of DOT. Ibid.

Thus, there is no requirement that DOT accept the municipality's decision regarding the siting of an aeronautical facility within its borders nor is the municipality's decision dispositive of a license application. Therefore, the Township's argument that DOT was bound by its Board's denial of Trump's use variance application must fail.

In Garden State Farms, however, the Court required DOT, in making its licensing decisions, "to pay due attention to the lawful zoning provisions of local governments" and not to act in an unreasonable fashion so as to arbitrarily override all important and legitimate local concerns. Id. at 455. In this regard, the Court stated that DOT "'ought to consult with the local authorities and sympathetically listen and give every consideration to local objections, problems and suggestions in order to minimize the conflict as much as possible.'" Ibid. (citing Rutgers v. Piluso, 60 N.J. 142, 154 (1972)).

Here, the Director followed the Supreme Court's direction and gave careful consideration to the Township's objections to Trump's application, the written objections submitted by the eighteen residents, and the Board's resolution denying Trump's use variance application. Contrary to the Township's contentions, the Director "conscientiously [weighed the] local interests, [examined] carefully whether the proposed aviation facility is compatible with surrounding land uses and [consulted] the local ordinances and authorities in making [his] licensing decision[.]" Garden State Farms, supra, 77 N.J. at 456.

The Township's, the residents', and the Board's primary objection to the application was that the helistop would operate as a public-use facility with constant and unrestricted air traffic. The Director ensured this would not occur by placing six conditions on the license, which severely restrict and limit the operation of the helistop.

Under the terms of the license issued by the Director, the helistop may only be used forty-eight times a year, an average of less than once a week. It may not be used by the general public or by anyone other than Donald Trump, his family, or his designee. The helistop may only be used during the day, unless there is an emergency, such as the need to air-lift an accident victim to a hospital. No refueling may occur at the site.

The helistop will be located in the middle of the golf course. The primary approach and departure path will take the helicopter over the golf course, a heavily-traveled State highway and a military facility, rather than residences. Even if the secondary approach and departure path must occasionally be used, the helicopter would have at least 800 feet to gain altitude before flying over the nearest residence. These routes, coupled with the restrictions on the time of day the facility can be used, addresses the Township's concerns about noise and community disruption.

The helistop is also consistent with the property's current use as a golf course. The surface of the helistop will consist of porous pavers designed to resemble a lawn and, therefore, it will fit in well with its surroundings. The Director also required that the site be "regularly monitored for vegetative growth." There will be no imposing or highly visible structures that would be out of character with the rural nature of the Township.

The Township disputes some of the specialists' individual scoring decisions on the criteria for licensure set forth in N.J.A.C. 16:54-2.5(a). For the most part, however, the objections the Township raises concern scores which actually favored the Township, rather than Trump. In any event, by imposing six restrictions on the license he granted, the Director fully complied with the requirements of Garden State Farms and he fully addressed the Township's concerns, together with those of its residents and Board.

In sum, there was sufficient credible evidence in the record to support the Director's decision to grant Trump's application for a Helistop-Restricted Use license. This decision was neither arbitrary, capricious, or unreasonable under the circumstances of this case. Therefore, we affirm the Director's final decision.

1 Trump appealed the Board's decision to the Superior Court, Law Division under Docket No. MON-L-0166-11. On April 2, 2012, the trial judge affirmed the Board's denial of Trump's use variance and site plan approval application. On June 4, 2012, Trump filed a notice of appeal from that decision, which was assigned Docket No. A-4966-11. That appeal is still pending.