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Township of Hanover v. Town of Morristown

Decided: December 10, 1969.

TOWNSHIP OF HANOVER, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; TOWNSHIP OF MORRIS, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; BOROUGH OF FLORHAM PARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; A. STEWART DUNFORD; THOMAS E. KENNEY; MARTIN B. MONROE; JOSEPH ELSMAN; JOHN E. FLAHERTY; NORMAN S. WEINBERGER, PLAINTIFFS,
v.
THE TOWN OF MORRISTOWN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND THE MORRISTOWN AIRPORT COMMISSION, DEFENDANTS



Stamler (Joseph H.), J.s.c.

Stamler

(For publication purposes, the following statement of facts is an abstracted version of those set forth at length in the Court's original Opinion in this case.).

This is an action in which plaintiffs seek a permanent injunction forbidding certain planned physical alterations and extensions of facilities at Morristown Municipal Airport or, in the alternative, a direction of the court curtailing use and operation of the airport.

Plaintiffs are four municipalities, Township of Hanover, Borough of Florham Park, Township of Morris and Borough

of Madison, and six individuals who either reside or are employed in one or another of the plaintiff municipalities. Defendants are the Town of Morristown and the Morristown Airport Commission.

The Town of Morristown owns the Morristown Municipal Airport, consisting of approximately 595 acres of land situated in the Township of Hanover. Control and operation of the Airport is vested in the Morristown Airport Commission, a commission created by the ordinance of the Town of Morristown in 1949. The Borough of Florham Park abuts to the south and east; The Township of Morris to the west. Located to the south of the Airport and Florham Park is the Borough of Madison.

Morristown Airport was constructed just prior to the beginning of World War II. Subsequent to the war's end, use of the airport's facilities increased with each passing year. Not only did more planes use the airport, but also aircraft engines became more powerful and increasingly noisy.

Municipalities in Morris County, including plaintiff municipalities immediately adjoining the Airport, experienced rapid growth in residential areas, industrial development and transit systems on the ground and in the air. The Township of Hanover adopted a Master Plan in 1963 which acknowledged that additional improvements and plans for expansion at Morristown Airport were anticipated. Florham Park adopted a General Development Plan in 1960 which made no specific reference to Morristown Airport from a planning or zoning standpoint. Morris Township has no Master Plan. No evidence as to any master or zoning plan as to Madison was introduced at the trial.

As an incident to the increased activity at Morristown Airport, a navigational aid for locating the Airport in inclement weather was installed in the 1950's. This system, known as automatic direction finding (A.D.F.), utilizes a radio beacon as a homing device described by today's experts as a "Mickey Mouse" affair. The transmitter, which

is situated in Chatham Township, is still in use today. When utilized as a homing signal for Morristown Airport on days of low visibility or at night, planes homing on the device arrive over the beacon transmitter and then proceed on a specified compass course in the direction of the Airport until safe landing instructions are directed by the control tower. This course takes the aircraft almost directly over what is now Fairleigh Dickinson University (Madison campus) and a little to the east of the College of St. Elizabeth. In addition, the Chatham beacon is also used by scheduled airlines as a navigational localizing fix and holding point for approaches to or departures from Newark Airport.

Morristown Airport still has today the two original runways layed out in 1940, each 4,000 feet in length. One, designated "5-23", runs in a northeast-southwest direction; the other, designated "12-30", runs northwest to southeast. In the late 1950's, the Airport Commission and the Town of Morristown determined that additional improvements, as recommended by the Federal Government's National Airport Plan, were needed. A Master Plan and General Layout Plan were prepared in April 1960, and were submitted to the Federal Aviation Agency (hereinafter, F.A.A.) in June 1960. The plan in one phase specifically called for the lengthening of runway 5-23. General information as to the plans for improvements at Morristown Airport came to the attention of the officials of the neighboring communities, as well as to officials in County, State and Federal Government. Additional improvements planned consisted of a new control tower, new aircraft taxiways, new lighting improvements, and installation of an instrument landing system (I.L.S.).

In April 1967 Morristown, with the approval of the New Jersey Bureau of Aeronautics, submitted a request to the Federal Government for financial assistance by way of grant to complete the 1960 Master Airport Plan. The F.A.A. took favorable action in the form of two projects which

were thereafter combined into one, with an estimated total cost of $2,734,480.

Many governmental agencies were actively engaged in considering the proposed plans. The geographic location, the nature of the services performed and to be performed in the future and the types of aircraft were among the many factors reviewed by F.A.A., Tri-State Transportation Commission, New Jersey Bureau of Aeronautics, Morris County Aviation Commission and the Morris County Planning Board. The New Jersey Departments of Transportation and Community Affairs were informed of the proposed improvements. Informal conferences were held with various officials of Hanover Township, East Hanover, Florham Park and Morristown. This was done to keep the neighboring communities abreast of what was intended to be accomplished. Final plans and specifications were submitted to F.A.A. in September 1968.

Objections to the proposed improvements raised by plaintiffs in the instant action and by other local citizens resulted in a meeting before the F.A.A. in December 1968. Subsequently, a public hearing was held at F.A.A. offices in Newark, New Jersey on March 1, 1969, in compliance with 49 U.S.C.A. ยง 1108 (d) 3. The hearing examiner concluded that in furtherance of the National Airport Plan, the needs of Morristown Airport required the improvements and that no substantial harm would come to any of the surrounding communities or their residents. The examiner also found that the anticipated noise after improvements would not reach levels that would affect the health and comfort of ordinary people living or working in the vicinity of the Airport.

A contract was entered into under which the Federal Government agreed to contribute one-half of the $2,700,000 for the implementation of the plan. Defendants thereafter advertised for bids for construction of the improvements. On July 14, 1969 bids were received and reserved for study by the governing body of Morristown. At or about the

same time the Airport Commission and the Town entered into a lease with Newark Air Service (NAS) which under its terms permitted NAS to use a part of Airport property for maintenance and service of aircraft.

The present suit was then instituted. An order to show cause issued requiring the defendants to show cause on September 12, 1969 why an injunction should not be granted pending final hearing in the matter. With consent of all parties, the court granted a limited injunction. On the return day, recognizing the public interest and the necessity for an early determination, the court fixed September 18, 1969 for pretrial conference and October 14, 1969 as the trial date. On September 18 at the pretrial conference, a motion was made by defendants to modify the interlocutory injunction theretofore entered, and with the consent of plaintiffs the injunction was modified. The matter came on for trial on October 14, 1969. NAS sought and was granted leave to file a brief amicus.

The evidence adduced at trial comprises a vast number of complex documentary exhibits and testimony of lay and expert witnesses. The lay witnesses included twenty-two citizens, whose residences or places of employment were located in close proximity to the Airport and its operations. Generally their complaints were apprehension of crash and intolerable noise.

In the context of this case and unscientifically, noise may be described as unwanted sound. It can hardly be described as a new evil lately come upon us. Many, many years ago citizens complained of the pounding on the anvil by the blacksmith, the irritable rasp of the grindstone upon which swords and scissors were sharpened, the carpenter's hammering home the crudely forged nail, or the clatter of the iron-shod hooves of horses on the cobblestone streets of the city. In about 1750, in what we today might think of as the tranquil colonial city of Philadelphia, Benjamin Franklin determined that he must move to Second and Sassafras Streets from High Street because "the

din of the Market increases upon me; and that, with frequent interruptions, has, I find, made me say some things twice over." However, looking forward to the blessings of civilization, one of which is purportedly progress, the citizen grudgingly accepted the fact that some noise must be tolerated.

In the past, noise for the most part was concentrated in the cities; man began to leave for the suburbs to seek a tranquil existence. But with the coming of multi-laned super-highways and the trucks and other high-powered vehicles criss-crossing suburban and rural districts, the unwanted sounds, on the increase in the cities, also followed people to the country. On both sides of the highway as it passed through suburbia, those who had sought rural quiet either accepted the noise or moved further back from the edge of the road.

Aviation industry progress continues onward and upward. From the "putt-putt" of the single 70 hp. engine on light canvass-covered aircraft, through the era of the piston-engine propellor plane, to today's shrill whine of heavy, multi-engine jets, civilization advanced over the roof of the house which had reluctantly backed away from the highway.

Noise, including aircraft sound, is no less an environmental pollution than the smog and smoke that pollutes the air or the debris which poisons our lakes and rivers. It is the most difficult form of pollution to control. No one would expect that man should continually live inside his home with all doors and windows tightly shut or walk the streets or the fields with fingers in his ears or wear acoustical ear muffs, such as those employed on the flight line at an airport. It is regretfully concluded that the unwanted ambient noise, including noise emission from aircraft on the ground and in flight, will always be with us. The search is for the zone of unacceptable annoyance and a determination of what, if anything can be done in attenuation.

The twenty-two citizens who testified came from all walks of life. Distillation of their complaints reveals that intrusiveness of unwarranted sounds from aircraft, both on the ground and in flight, caused apprehension, annoyance and anxiety. This was especially true in the early hours of the morning (6:30 to 7:00 A.M.) and late hours in the night (11:00 to 11:30 P.M.). Almost all of the citizens had purchased their homes with knowledge of the close proximity of the already existing airport, but some had assumed that it was "a small country airport" which would always remain just that. Others acknowledged that they had moved into mushrooming new developments of homes upon which construction had begun some 20 years or more after the Airport's opening. There was no testimony that the values of their homes had depreciated, or that they intended to sell because of the Airport noise.

Each of the residents was most annoyed that complaints, when registered with the Airport Management or F.A.A., seemed to fall on deaf ears. They wanted action and received none, although it was apparent to them that violations of Airport rules and F.A.A. regulations had been committed on numerous occasions. Fears of a crash into their homes of the rumbling and whining aircraft close overhead are not allayed by Morristown Airport's enviable safety record.

There has been much supposition and alarm. In summation, counsel for defendants, acknowledging the sincerity of the citizens who testified, admitted that "all of the blame cannot be laid at the door of the plaintiffs." It is assumed that this admission was made not only as to the citizen-plaintiffs, but also the zoning and planning officials of the municipalities. Much of the conjecture of both groups of plaintiffs was born from a dearth of accurate information. This information would have assisted the land-use planners in the adjoining municipalities, and also would have explained away some of the wild rumors which circulated among local citizens.

Evidence at trial projected an increase in annual aircraft movements at Morristown Airport from 200,000 in 1960 to 380,000 in 1980; from a current 1,500 to 35,000 movements of jets whose weight exceeds that of the business-type piston aircraft. The Airport's concern with expansion, therefore, is solely beneficent in arguing for safety. It, too, has an eye on gross income return, especially since by law it cannot be a deficit operation, and the proposed improvements will certainly attract additional users. Experts say that by 1980 the field will have reached its "saturation point" as to use.

Much of the expert testimony on aircraft operations and acoustical disturbances was based on projections. These are not much more than peering into the same crystal ball with rose-colored glasses by defendants and smoke-clouded glasses by plaintiffs. However, of particular relevance is the comparison of the present categories of users of the Airport compared to the "mix" anticipated in the future. Projections demonstrated that the principal beneficiaries of the Airport after the contemplated improvements would be in the "business" category, variously described as "executive type aircraft" or "corporate jets." It becomes obvious that with the increased use of planes, especially in the "business" category, will come increased noise disturbance.

F.A.A., which has primary responsibility for a solution to the problem of aircraft noise, has not as of this date created any definitive standards for land use planning as it is related to aircraft noise. In addition, many other agencies of government on Federal and State levels are now working together on an aircraft noise abatement program. Furthermore, there was also testimony at trial that improvements in aircraft design technology will hopefully lead to reductions in noise at the source, that is, in the aircraft engine itself. The F.A.A. considers the noise problem second only to safety, and insofar as safety is the

prime consideration as to aircraft operating procedures, this Court cannot supersede the expertise of the F.A.A.

However, within the area of limitation of hours of operation, safety factors do not come into play, and with this variable the Court may properly concern itself. It was suggested by documents marked in evidence that F.A.A. considers the following as within the scope of limitations of operations: "(1) night movements can be restricted to reduce over-all noise exposure; (2) gross weight or stage-length maximums can be established to reduce operation power requirements; (3) number of operations per day can be restricted to reduce over-all noise exposure; (4) type of aircraft can be controlled at noise sensitive airports."

From the proofs in this case there can be no question but that Morristown Airport is a "noise-sensitive airport." F.A.A. indicates that runway use has a strong influence on community noise exposure. The preferential runway plan, utilizing runway 5-23 at Morristown Airport, is hopefully one means of noise abatement, and this preference can be utilized if 5-23 is extended. F.A.A. further suggests that engine run-up noise can be a primary source of annoyance to nearby residential communities. This can be reduced by the use of remote locations, aircraft orientation, runway noise barriers, moveable or fixed ground suppressors for engine run-up and restrictions on hours during which engine testing is permitted.

Prior to summations, the Court, at the request of all parties, visited the Airport for a site and flight inspection. Counsel and one expert for each side accompanied the Court in a flight over some of the areas in which the citizen-plaintiffs resided. Simulated I.L.S. landings were also conducted. Immediately upon returning to the Airport Operations Office, the impressions of the attorneys and of the Court were placed upon the record. At that point, the Court requested that the parties enter into stipulations if possible, setting forth steps that could be taken to attenuate

noise from the testing or repairing of aircraft engines and possible uses of noise suppression equipment on the runways while aircraft awaited clearance for take-off. Gratefully the Court acknowledges the cooperation of counsel in considerably ...


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