The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2390-13T1
TOWNSHIP OF FAIRFIELD, APPROVED FOR PUBLICATION
April 10, 2015
Appellant,
APPELLATE DIVISION
v.
STATE OF NEW JERSEY,
DEPARTMENT OF TRANSPORTATION,
Respondent.
__________________________________________________
Argued November 12, 2014 - Decided April 10, 2015
Before Judges Fisher, Nugent and Manahan.
On appeal from the Department of
Transportation.
Dennis M. Galvin argued the cause for
appellant (The Galvin Law Firm, attorneys;
Mr. Galvin, on the briefs).
Nicole T. Minutoli, Deputy Attorney General,
argued the cause for respondent State of New
Jersey Department of Transportation (John J.
Hoffman, Acting Attorney General, attorney;
Lewis A. Scheindlin, Assistant Attorney
General, of counsel; Ms. Minutoli, on the
brief).
Salvatore Salibello, attorney for respondent
Pio Costa Enterprises, joins in the brief of
respondent New Jersey Department of
Transportation.
The opinion of the court was delivered by
MANAHAN, J.S.C. (temporarily assigned)
Fairfield Township (Fairfield) appeals from the final
determination of the Director of the Division of Multimodal
Services, Department of Transportation (DOT), granting a
Helistop "Special Use" license to Pio Costa Enterprises upon
application of one of its principals, Anthony Pio Costa (Pio
Costa). After reviewing the record in light of the contentions
advanced on appeal and the applicable law, we affirm.
Pio Costa is an owner of property located in an industrial
park in Fairfield. Pursuant to Fairfield's zoning ordinance,
the use of the property for helistops is prohibited.
Nonetheless, commencing in 1994, Pio Costa was granted a
temporary helistop license by the DOT. The temporary license
was renewed in 1995 and 1996. In 1997 Pio Costa applied for a
permanent helistop license which the DOT issued for the time
period of January 1, 1998 to January 31, 1999. After expiration
of the license, Pio Costa continued to use the property as a
helistop.
Fairfield instituted a civil action in the United States
District Court naming Pio Costa and various corporate entities
as defendants relative to the use of the helistop. In a ruling
on March 20, 2006, a district judge denied Pio Costa's motion
2 A-2390-13T1
for summary judgment noting the validity of the zoning
ordinances was not preempted by the Federal Aviation
Administration. The district judge remanded the matter to the
Superior Court of New Jersey for disposition.
Subsequent to the remand, and upon the filing of an order
to show cause by Fairfield, the trial court entered an order
temporarily restraining the defendants from "operating or
permitting to be operated any and all helicopters upon, on or
from the subject property pending further order of the court."
A hearing took place on April 18, 2007. After oral argument,
the judge continued the restraints. The judge noted in the
decision that Pio Costa failed to apply to the DOT for a
license.
Thereafter, Pio Costa filed an application with the
Division of Aeronautics of the DOT seeking a permanent helistop
license. In response, the DOT denied the issuance of the
requested license predicated upon the requirement that Pio Costa
apply to the appropriate planning authority for permission to
maintain the proposed helistop. N.J.A.C. 16:54-2.1(a)(6).
In 2010, Pio Costa applied for a use variance. At the
conclusion of three hearing dates, the Board of Adjustment
(Board) denied the application in a resolution. Pio Costa then
filed a complaint in lieu of prerogative writs.
3 A-2390-13T1
Pio Costa's attorney informed the DOT by letter about the
Board's denial of the application. In a written response, the
Deputy Attorney General on behalf of the DOT, advised the
attorney that the DOT "will not approve your client's
application for a permanent license." The letter further
advised a waiver of the application's requirements may be
requested but "that it is unlikely" a waiver would be granted
"in light of [Fairfield's] denial of [Pio Costa's] application
for a variance." Notwithstanding this communication and in
clear contravention to its advisement, the DOT did permit the
application to proceed which ultimately resulted in the issuance
of a license in February 2012.1 Fairfield was never notified of
the application's "revived" status nor was it consulted for its
input.
In furtherance of the revived process, Pio Costa was
required to publish public notice of the application, which he
did. There were no responses filed with the DOT to the
publications. During the process, two specialists from the DOT
provided Pio Costa with a list of site conditions that were
required to be corrected prior to the issuance of a license. In
February 2012, Pio Costa corrected the site condition issues and
1
The record includes e-mails between Pio Costa's counsel and an
Aeronautical Specialist from the DOT relative to a continuing
investigation with the purpose of re-licensing.
4 A-2390-13T1
provided the required documentation to the DOT. Pio Costa
advised the DOT that the helistop was ready for inspection. Two
specialists from the DOT completed an evaluation using licensing
criteria set forth in N.J.A.C. 16:54-2.5. Pursuant to the
evaluation, the specialists found there were no negative impacts
on health and safety and defendant was issued a license on
February 28, 2012. The license was purportedly served by
counsel upon Fairfield on March 6, 2012.2
When Fairfield became aware of the use of the property as a
helistop, it filed a timely appeal of the DOT decision.
Subsequent to a pre-argument conference, the appeal was stayed
pending the outcome of the prerogative writ action. After Pio
Costa dismissed the action with prejudice, the stay of the
appeal was lifted.
During the pendency of the appeal and in accordance with
Rule 2:5-1(b), the Director of the Division of Multimodal
Services (Director) filed a "Statement of Reasons for Decision."
Thereafter, the DOT filed a motion, which we granted, seeking
remand for further consideration of issues raised on appeal.
Upon remand, the DOT requested Fairfield and Pio Costa to
provide additional arguments. Fairfield argued the helistop was
contrary to sound planning and unsafe due to its proximity to an
2
Fairfield denies receiving notification in this manner.
5 A-2390-13T1
airport, a cellular tower, a car wash, a neighborhood of
residential homes and a highway. In response thereto, and after
noting the objections of Fairfield, the DOT altered the
"Restricted Use" license issued to Pio Costa to a "Special Use"
license.
As a result of the DOT's investigation, it was determined
the radio cellular tower, as well as the car wash, was located
outside the safety area specified in the FAA Advisory Circular
for Helistops. It was also noted Pio Costa erected a four-foot
fence separating the helistop from the car wash and posted
warning signs. In regard to the residential homes, the DOT's
investigation determined the nearest residence was not impacted
by the approach/departure path. The DOT also made note that it
was normal procedure to place the approach/departure path over a
highway to have minimal impact on residential areas. In the
"Statement of Reasons for Decision", the Director concluded:
Based upon the review of application, the
documents from respective counsels from the
Township of Fairfield and Anthony Pio Costa,
denial of a variance by the Fairfield Zoning
Board of Adjustment and the site
inspections, the Division determined that
Anthony Pio Costa was entitled to a helistop
license for the Bloomfield Avenue location.
In this particular instance, there was a
history of helicopter use at the location.
Prior helicopter use presented no safety or
operational issues and there were no
complaints about such use from the general
public. The added cellular tower did not
6 A-2390-13T1
create an unsafe condition. The location is
in an industrial area and is bounded by
heavily trafficked roadways. There is no
interference with residential use. It was
determined that Township concerns could be
addressed by issuing a special use license.
The special use license restricts users of
the helistop to Anthony Pio Costa only,
using the helistop only in the daytime
visual meteorological conditions in the
helicopter listed on the license. The
license also requires at least one (1)
safety observer in place when the helistop
is being used.
After the issuance of the decision, Fairfield filed an
appeal.
On appeal, Fairfield raises the following points:
POINT I
THE DEPARTMENT OF TRANSPORATION'S FAILURE TO
HOLD A CONTESTED PUBLIC HEARING, PRIOR TO
ISSUING A HELISTOP LICENSE TO PIO COSTA, WAS
A FATAL PROCEDURAL DEFECT.
POINT II
THE DOT FAILED TO ADEQUATELY CONSIDER THE C-
3 ZONE'S PROHIBITION AGAINST HELIPADS AND
THE ZONING BOARD'S DENIAL OF PIO COSTA'S USE
VARIANCE.
POINT III
THE DOT'S PROCESS FOR CONSIDERING LOCAL LAND
USE HAS DEVOLVED INTO APPROVAL, SUBJECT TO A
LAND USE BOARD DETERMINATION.
POINT IV
THE DOT'S UNDERSTANDING AND APPLICATION OF
GARDEN STATE FARMS, INC. v. BAY II IS
MISPLACED, OR IN THE ALTERNATIVE, THAT THE
7 A-2390-13T1
COURT'S RULING OF MORE THAN [35] YEARS AGO
REQUIRES RECONSIDERATION, BASED UPON A
CHANGE IN LEGISLATIVE INTENT, BECAUSE THE
LOCATING OF AERONAUTIC FACILITIES WITHOUT
LOCAL ZONING APPROVAL RENDERS THE MUNICIPAL
LAND USE LAW NUGATORY.
A. AVIATION ACTS
B. OTHER VIEWS
C. THE AVIATION ACT DOES NOT PREEMPT
THE MUNICIPAL LAND USE LAW AS IT
CURRENTLY EXISTS.
D. THE HYBRID PREEMPTION PROCEDURE OF
GARDEN STATE FARMS IS BAD PUBLIC
POLICY AND NEEDS TO BE
RECONSIDERED, BECAUSE IT RENDERS
THE MLUL SUPERFLUOUS.
POINT V
THE DOT'S PHOTOS ARE MISLEADING.
In Fairfield's supplemental brief, it raises the following
points:
POINT I
THE DOT HAS FAILED TO TURN SQUARE CORNERS.
POINT II
THE DOT LACKS AUTHORITY TO ORDER THE
ISSUANCE OF ZONING OR BUILDING PERMIT.
POINT III
THE PROPOSED HELISPOT IS UNSAFE.
Our scope of review of a final decision of an
administrative agency is strictly limited. In re Taylor, 158
8 A-2390-13T1
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 Fairfield, we discern no basis
to disturb the Director's decision to grant a Helistop-Use
Restricted license.
Fairfield argues its zoning ordinance barring helistops and
the Board's resolution denying the application should have
effectively precluded the Director from issuing the license. We
conclude the adopted regulatory scheme and relevant case law do
not comport with Fairfield's argument.
Pursuant to the Aviation Act, the DOT is charged with the
supervision over aeronautics within this
State, including, but not by way of
limitation . . . heliports and helistops . .
. . [It] may adopt and promulgate
9 A-2390-13T1
reasonable rules, regulations and orders . .
. commensurate with the needs of public
safety . . . and to develop and promote
aeronautics within this State.
[N.J.S.A. 6:1-29.]
Therefore, the DOT is tasked with "the ultimate authority
as to the placement of aeronautical facilities." Garden State
Farms, Inc. v. Bay, 77 N.J. 439, 454 (1978). Thus, while
municipalities may pass ordinances restricting heliports under
N.J.S.A. 40:55D-2, "they 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[.]" Ibid.; see also Overlook
Terrace Mgmt. Corp. v. Rent Control Bd. of W. N.Y., 71 N.J. 451,
461-62 (1976).
Although the DOT need not "give controlling weight to local
zoning provisions," Garden State Farms, supra, 77 N.J. at 454-
55, neither should it "arbitrarily [override] all important
legitimate local interests[,]" the 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." Id. at 455
(quoting Rutgers, State Univ. v. Piluso, 60 N.J. 142, 153-54
(1972)). The DOT's failure "to weigh conscientiously local
interests, to examine carefully whether the proposed navigation
10 A-2390-13T1
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.
In Garden State Farms, the municipality adopted a zoning
ordinance that prohibited the principal or accessory use of land
for the purpose of accommodating helicopter take-offs and
landings. Garden State Farms, supra, 77 N.J. at 444. The
license applicant brought suit asserting the State's statutory
authority over the location of aviation facilities. Ibid.
The Court disagreed with the applicant on the preemption
issue, but held 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 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
11 A-2390-13T1
exercise its zoning authority "so as to collide with" the final
decisions of the DOT. Ibid.
It is clear that while the DOT 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 aviation,
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.
Here, the Director gave careful consideration to
Fairfield's objections to the application and the Board's
resolution denying the use variance application. Contrary to
Fairfield'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]
12 A-2390-13T1
licensing decision[.]" Garden State Farms, supra, 77 N.J. at
456.3
Under the terms of the license issued by the Director, the
helistop could not be used by anyone other than Pio Costa and
only in a specified authorized aircraft. The helistop could
only be used during the day.
By consideration of the safety concerns raised by
Fairfield, the investigation of those concerns and imposing
restrictions on the license granted, the DOT complied with the
requirements of Garden State Farms.
Fairfield also argues the Director should have conducted
either a contested case hearing or an informational hearing
before determining whether to grant the license application. We
disagree.
In the "Statement of Reasons for Decision," the Director
did not specifically reference whether the licensing application
presented a "contested case" under the Administrative Procedure
Act (APA) and, therefore, whether there was a need to conduct an
adversarial hearing. Nonetheless, we find no error.
3
As an example of the balanced approach, Fairfield disputed 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 Fairfield raised concern scores
which were weighted by the DOT specialists in Fairfield's
favor.
13 A-2390-13T1
The APA defines a "contested case" as:
a proceeding, including any licensing
proceeding, in which the legal rights,
duties, obligation, privileges, benefits or
other legal relations of specific parties
are required by constitutional right or 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).]
Fairfield accurately states it has been granted the
statutory authority to enact zoning ordinances and make
decisions concerning them. N.J.S.A. 40:55D-62. However,
Fairfield has not cited to any statute or controlling decisions
that require a contested case hearing as a predicate when
considering an application for a helistop license.
Fairfield's right to enact zoning ordinances flows from a
State constitutional provision, N.J. Const. art. IV, § 6, ¶ 2,
but that provision does not grant a constitutional right to a
hearing under the circumstances of this case. 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).
14 A-2390-13T1
Fairfield does not have a "liberty interest" that has been
implicated by the helistop application. Likewise, Fairfield 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. Sav. & Loan Ass'n v. Howell, 24 N.J. 488, 505-06
(1957).
Further, the Director 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
"[t]he Commissioner [DOT] may require . . . public hearings
and/or informational meetings to be held regarding an
application for license." N.J.A.C. 16:54-2.4(a). Therefore, a
hearing is neither automatic nor mandatory in all cases.
Here, the Director explained in the decision that a hearing
was not required because there were no material facts in dispute
and the issues were clearly framed by the submissions of Pio
Costa's and the Board's attorneys and the Board's resolution
denying the variance.
Additionally, as noted, Fairfield and Pio Costa were given
the opportunity to provide further arguments regarding the
license. Fairfield has provided no support for the argument it
15 A-2390-13T1
was denied the opportunity to present any relevant facts or
argument in furtherance of its opposition to the application or
that an informational hearing was requisite for that purpose.
The record substantiates that no informational hearing was
required.
In sum, consistent with our standard of review, we conclude
there was sufficient credible evidence in the record to support
the Director's decision to grant the application for a Helistop
"Special Use" license. The decision was neither arbitrary,
capricious, nor unreasonable.
The remaining arguments raised are without sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
16 A-2390-13T1
______________________________________
FISHER, P.J.A.D., concurring.
I concur in today's judgment, which I agree is compelled by
Garden State Farms, Inc. v. Bay, 77 N.J. 439 (1978), even though
– were the slate blank – I would follow the approach cogently
described by Judge Conford in his separate opinion in that case,
id. at 457-58. In examining the Aviation Act, N.J.S.A. 6:1-20
to -44, Judge Conford found no evidence the Commissioner was
given the authority to permit a helistop in a place lawfully
rejected by a municipality. Garden State, supra, 77 N.J. at
457. The majority, however, determined the Act provides the
Commissioner with superseding authority over the municipality,
although the Commissioner may not completely disregard local
concerns, 77 N.J. at 451, and must "pay due attention," id. at
455, to the lawful zoning expressions of local governments. See
also Rutgers, State Univ. v. Piluso, 60 N.J. 142, 154 (1972)
(holding the Commissioner must "sympathetically listen" to local
concerns).
Here, the Commissioner asserts the municipality's concerns
were considered, and the record does not demonstrate otherwise.
Notwithstanding, I would question whether – when such a conflict
arises – greater weight should be given to the extent, if any,
the public welfare will be served by a helistop's location. For
example, a decision to permit a helistop in a location found
unsuitable by local authorities, in my view, should be entitled
to less deference when, as here, the helistop will be used only
for the convenience of a single individual with no concomitant
public benefit. Overriding the expressed local concerns in that
instance seems inconsistent with the Act's purpose, which is to
develop aeronautics in this State "in the interest of public
safety," N.J.S.A. 6:1-20, and not for the pleasure of a single
individual. I think, in the circumstances presented, the
Commissioner should have assigned much greater weight to the
municipality's opposition and, for that reason, we should give
less deference to the Commissioner's determination.
Garden State, however, concludes it is enough that the
Commissioner listen to the municipality's opposition. Because
the record does not suggest the municipality was completely
disregarded, and because we are bound by Garden State to defer
in that instance, I am obligated to concur in today's judgment.
2 A-2390-13T1