On appeal from Division of Aeronautics, Department of Transportation.
Goldmann, Leonard and Mountain. The opinion of the court was delivered by Leonard, J.A.D.
[113 NJSuper Page 254] Plaintiff appeals pursuant to R. 2:2-3(a)(2) from the failure and refusal of the Director of the Division of Aeronautics, Department of Transportation (hereafter Director) to hold a public hearing prior to his issuance of a Fixed Base Operator's License, No. 0-53, to the United States Steel Corporation, Aircraft Division (hereafter U.S. Steel). This license authorized U.S. Steel to conduct the type of operation known as "Aircraft Maintenance or Repair
Shop" at the Mercer County Airport, Trenton, N.J. (hereafter airport).
Plaintiff presently is one of four fixed base operators located at the airport and has been so engaged for the past seven years.
Since 1961 U.S. Steel has maintained aircraft engine and airframe maintenance facilities at the airport for the maintenance, servicing and repair of its own aircraft. However, having decided that it should engage in the business of servicing aircraft owned by others, it made application on July 31, 1970 to the Division of Aeronautics, Department of Transportation for a fixed base operator's license.
Plaintiff's president, John P. Becker, asserts that on September 9, 1970 he personally advised the Director that his company objected to the license sought by U.S. Steel and was told to put his position in writing. Accordingly, the next day at or about 8:30 A.M. Becker hand-delivered a letter to the Director's office setting forth these objections and requesting a hearing before the license was issued. That morning the Director was engaged elsewhere and he did not arrive in his office until after 11 A.M. Consequently he did not see plaintiff's letter until after the license had been mailed to U.S. Steel. He stated that he would attempt to retrieve it from the mailroom prior to delivery and apparently he made an effort to do so but was unsuccessful.
Thereafter, considerable discussions and conferences took place among the Director, counsel for plaintiff and a representative of the Attorney General as to whether a hearing would be held concerning the issuance of the license to U.S. Steel. As a matter of fact, the Director did schedule a hearing for October 27, 1970. However, a dispute arose between the parties as to the scope of that hearing. Plaintiff insisted that the inquiry be as to whether the license should be granted to U.S. Steel in the first instance. Thus, it requested a stay of the operative features of the license pending the hearing. On the other hand, the Director insisted that the license was "lawfully and legally" issued, refused
the requested stay and stated that the purpose of the hearing would be to determine whether the license should be "revoked, amended or annulled." In any event the hearing was not held and plaintiff instituted its original action in the Superior Court, Chancery Division for injunctive relief, followed by the present appeal.
The single issue before us is whether a hearing is required prior to the issuance of a fixed base operator's license by the Division of Aeronautics, Department of Transportation.
Title 6 of the New Jersey Statutes Annotated, among other things, created the State Department of Aviation, the State Aviation Commission and the office of State Director of Aviation. N.J.S.A. 6:1-22. (In 1966 the functions, powers and duties of the Department of Aviation were transferred to and vested in the Department of Transportation. N.J.S.A. 27:1A-3). Their powers and duties are prescribed in full by subsequent subsections of the statute. N.J.S.A. 6:1-31 provides:
It shall be the duty of the commission to hold public hearings on matters affecting aeronautics; to conduct investigations, inquiries and hearings concerning matters covered by the ...