On appeal from Superior Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Burling, J.
During the period of 1931 to 1941 the Town of Morristown (hereinafter referred to as Morristown) acquired a 235-acre tract of land within the boundary of the Township of Hanover (hereinafter referred to as Hanover). Pursuant to agreements between the United States of America and Morristown the property was developed for airport purposes and to this end runways, hangars and other buildings were constructed. The airport development was initiated in 1941 and the use has continued to the present day, Morristown having assumed control of the operation after World War II.
In 1946 Hanover Township enacted a zoning ordinance which incorporated the airport lands into a Residence B zone. Airports were impliedly excluded from residential zones from the terms of this ordinance and the preexisting aviation field became a non-conforming use. Subsequent amendments to the zoning plan have worked no change in this status.
Morristown, in the operation of the airport, has made leases of the facilities to private persons and corporations. Plaintiff Aviation Services, Inc., is a lessee under one of these agreements. It operates an aircraft maintenance service and a flight school, conducting its business from a building at the airport. In May of 1953 Aviation Services, Inc., applied to the building inspector of Hanover Township for a permit to enable it to reconstruct and enlarge the building it had leased, an improvement which Morristown had previously authorized. The application was denied and an appeal
was taken to the Board of Adjustment of Hanover Township without success.
Thereafter Aviation Services, Inc., filed a complaint in lieu of prerogative writ against the building inspector and Board of Adjustment of Hanover Township. Morristown intervened as a party plaintiff and filed a separate complaint, alleging, inter alia, that the provisions of the ordinance as applied to the property in question "are invalid and void" either because the lands are owned by "a municipal corporation" or by virtue of the unsuitability of the lands for residential purposes the ordinance imposes "restrictions and prohibitions which are arbitrary, unreasonable and capricious." The challenge thus made caused Hanover Township to intervene as a party defendant. Morristown then moved for summary judgment upon two counts of its complaint which raised this single issue:
Is the Morristown Municipal Airport subject to the zoning ordinance of Hanover Township?
A comparable motion was made by Aviation Services, Inc., upon its complaint.
The trial court answered this question in the negative, reasoning by analogy from the determination in Town of Bloomfield v. New Jersey Highway Authority, 18 N.J. 237 (1955), where we held that in the absence of legislative provision to the contrary the Highway Authority, in carrying out the purpose for which it was created, was not subject to the municipal zoning ordinance of Bloomfield.
Defendants filed an appeal to the Superior Court, Appellate Division, and because of the general public importance of the question we certified the cause prior to a review below. R.R. 1:10-1(a).
In 1929 the Legislature authorized municipal governing bodies to "acquire, establish, construct, own, control, lease, equip, improve, maintain, operate and regulate" airports within the municipal limits, R.S. 40:8-2 (L. 1929, c. 325). This enactment was amended by L. 1947, c. 85 to permit operation of airports "within or ...