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Jump v. Township of Andover

A-6608-03T2 (N.J. Super. App. Div. 2006) (Unpublished)

ZONING; AIRPORTS—The New Jersey Aviation Act preempts local land use law ordinances, but the Department of Transportation cannot ignore conflicting municipal zoning ordinances.

An airport began operations in the 1950s. In 1962, the municipality zoned the airport as “Rural Agricultural.” The airport remained in operation as a permitted, non-conforming use. In 1966, the State licensed the airport as a Class 5 Public Landing Field, permitting flights and public usage of the facility. Thereafter, the municipality sued the airport alleging violation of the zoning ordinance, seeking to limit the airport’s operations to those in existence in 1962 when the municipality first adopted its zoning ordinance. This suit was settled in 1969 and the parties executed a consent judgment. While permitting continued operation of the airport, the consent judgment precluded, among other things, jet aircraft, aircraft with more than 2 engines, the construction of a control tower, and flying club activities. Construction of new facilities was prohibited without prior application to, and approval from, the appropriate municipal authority. In 1983, the State replaced the airport’s 1966 license with a Fixed Wing Aeronautical Facilities Airport Public Use license, as authorized by N.J.S.A. 16:54-1.2, and the State began exercising regulatory control over the airport. In 1988, the municipality responded to a State Division of Aeronautics notice and revised its zoning ordinance to recognize the airport as a permitted use. However, the revised zoning ordinance continued to forbid many of the activities prohibited in the 1969 consent judgment. In 1997, the airport was found guilty of violating the ordinance and guilty of expanding a non-conforming use by permitting a glider flight school to operate at the airport. The airport appealed to the Law Division, and in 1999, the judgment was reversed. The Superior Court reasoned that without applying to the Department of Transportation and proving the requirements were reasonable, the municipality did not have authority to exercise its land use powers within the airport boundaries. Another dispute arose in 1999 over the operation of another flight school. Following the instructions set forth in the earlier dispute, the municipality sought a legal determination from the Department of Transportation (DOT). DOT responded by saying that it was not a party to the 1969 litigation, and as such was not the appropriate forum for resolution of the issue. Yet another dispute between the airport and the municipality arose in 2000 when the airport leased space to a skydiving business. The skydiving company’s application to the municipality’s board of adjustment was denied based on the municipality’s conclusion that skydiving was not a permitted use. Despite the denial from the board of adjustment, the skydiving company continued operations from trailers on the airport property. The trailers were not in use at the time of the consent judgment. The subcode official issued summonses to the airport for not obtaining zoning permits for the trailers.

In 2001, the airport sued the municipality claiming the 1969 consent judgment did not preempt the Airport Facilities Act and the regulations promulgated thereunder. On that basis, it sought to vacate the consent judgment and prevent the municipality from regulating activities at the airport. Both parties moved for summary judgment. The lower court granted partial summary judgment to each by dismissing the airport’s claims that the municipality was without authority to regulate aeronautical activities, and dismissing that part of the municipality’s motion that sought continuation of the 1969 consent judgment. Both the airport and the municipality appealed.

The municipality claimed that the 1988 zoning amendment did not invalidate the consent judgment, and that the airport failed to demonstrate any basis to vacate the judgment. The Appellate Division upheld the lower court’s conclusion that the 1988 zoning ordinance replaced and superceded the 1969 consent judgment. In doing so, it cited variations in the language between the consent judgment and the 1988 ordinance that showed that the municipality had intended to alter its position. In further support of its ruling, the Appellate Court held that a significant change in law, such as requiring the municipality to recognize the airport as a permitted use, removed the legal foundation for the consent judgment’s limitations. A change in law warrants modification or recision of an earlier agreement where the change in law makes legal what the agreement was designed to prevent. The Court held that a State regulation requiring a municipality to amend an ordinance is a significant change in law, and therefore the resulting amended ordinance removed the legal foundation for the consent judgment. Maintaining the same language in the amended ordinance as was in the consent judgment was merely the municipality’s attempt to save as much as possible the consent judgment’s restrictions. Consequently, the Court affirmed the lower court’s ruling that the 1988 ordinance superceded the 1969 consent judgment.

The airport appealed the lower court’s ruling that the New Jersey Aviation Act does not preempt local land use ordinances, but the Appellate Division affirmed the lower court’s ruling. While the Aviation Act is preemptive in nature, the DOT cannot ignore conflicting municipal zoning ordinances. Neither federal nor State aviation legislation was intended to exclude all local control. At the same time, municipalities are not free to exercise their zoning power to conflict with the expressed policy goals of the State. Consequently, the DOT must weigh municipal zoning ordinances against the proposed airport location and use. State regulations require an application to the DOT prior to the alteration of an existing airport so that the airport owner can demonstrate that the proposed alterations conform with existing land use ordinances. State regulations further require airport owners to obtain a final decision from the appropriate municipal authority and to submit that decision as part of their application to the DOT.


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