For the prosecutor, Riker, Marsh & Shipman (Irving Riker and Samuel Kaufman, of counsel).
For the defendants, Philip J. Schotland, corporation counsel of the City of Newark (Joseph A. Ward, of counsel).
Before Justices Case, Bodine and Porter.
The opinion of the court was delivered by
PORTER, J. On February 23d, 1944, the Board of Commissioners of the City of Newark adopted an ordinance referred to as the "Airport Zoning Ordinance of the City of Newark." In its preamble it recited that its purpose was to regulate and restrict the height of structures and objects of natural growth and to otherwise regulate the use of property in the vicinity
of Newark Municipal Airport by creating airport approaches and turning zones and establishing the boundaries thereof. The legality of this ordinance is challenged by the prosecutor, who is the owner of certain parcels of vacant land within the Newark Airport and the Port Terminal adjacent to it.
The city has for many years been acquiring salt meadow or marsh land within its boundaries and reclaiming it by filling to a level of 8 1/2 feet above mean sea level. It built and has developed Port Newark Terminal on the water front and adjacent to it an airport called the Newark Municipal Airport. The city has invested public funds in these enterprises of many millions of dollars. Until the early part of 1942, when the city leased a part of Port Newark Terminal and the entire airport to the United States, it had operated the property as a business enterprise. It received in rentals for parts of this property, from about 1927 until April 1st, 1944, over two and one-half millions of dollars.
It appears that most of the land embraced within the Newark Airport is owned by the city but that among other land privately owned are some sixteen parcels owned by prosecutor. The city agreed to purchase these parcels, and the Board of Commissioners adopted a resolution on March 8th, 1944, for the payment of the agreed price, upon the filing and approval of a deed. The deed was delivered, approved by the law department of the city, and recorded by it on March 10th, 1944, in the office of the register of deeds for Essex County. The city did not pay the prosecutor the consideration agreed upon. On March 14th, 1944, the Board of Commissioners adopted a resolution purporting to rescind the resolution authorizing the purchase of March 8th, 1944. In this situation prosecutor filed a bill of complaint in the Court of Chancery seeking appropriate relief. However, we are not concerned with the pending litigation or with the lease to the United States, but solely with the legality of the ordinance.
The airport approach zones and airport turning zones provided for in the ordinance extend for a considerable distance, two miles from the landing field, which is called Inner Boundary. No structure or tree may be erected or maintained
within these zones in excess of certain heights ranging from 10 feet to 370 feet, the lower heights being in the zones nearest the Inner Boundary. Another provision of the ordinance prohibits any use of land within a two-mile radius of the landing area which would in any manner create electrical interference with radio communication between the airport and aircraft, or make it difficult for flyers to distinguish between airport lights and others, or make any glare in the eyes of flyers using the airport, or impair visibility in the vicinity of the airport, or otherwise endanger the landing, taking off, or maneuvering of aircraft. This area was classified as "second industrial" under the general zoning ordinance of the city, prior to the adoption of this ordinance. This area, as stated, was reclaimed swamp or salt meadow land, and its value, according to prosecutor's expert witness, depended upon its location and the condition of the fill. He ...