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Township of Hanover v. Town of Morristown

Decided: January 10, 1972.


Stamler, J.s.c.


[118 NJSuper Page 137] The original complaint in the case at bar was filed on July 24, 1969. The trial began on October 14, 1969 and lasted for 12 full trial days plus one additional day for site inspection. Thirty-eight witnesses, lay and expert, testified. A prodigious number of documents, sketches, surveys, plans, etc., were received in evidence. Arguments were concluded on November 5. The court on December 10, 1969 rendered its opinion, which is reported in 108 N.J. Super. 461 (Ch. Div. 1969). On March 23, 1970 judgment was entered. As noted in the concluding paragraph of the opinion and in the first paragraph of the

judgment, the court utilized the resources of not only the attorneys for the respective parties but the parties themselves and a variety of technical consultants to formulate what it considered an experimental judgment. All attorneys approved the form of the judgment.

On May 17, 1971 a petition to intervene was filed. Those who now seek to become defendants by intervention are:

The National Business Aircraft Association, Inc. (hereinafter "NBAA"). It is a New York corporation with its principal place of business in Washington, D.C. Its 840 members are corporations located in 42 states, the District of Columbia and Canada. It is a nonprofit organization formed to promote the aviation interests of its member corporations operating aircraft as an aid to the conduct of their respective businesses. Avowed is their purpose "* * * to advance and maintain and enlighten understanding on the part of governmental and airport authorities of problems; to take such steps as are proper and necessary in order to promote better relations and secure proper advantages from regulatory and other agencies, and by these means to obtain wider recognition of the fact that the aviation activities of its members are of primary importance to the domestic economy of the nation."

The Air Transport Association of America (hereinafter "ATA"), an unincorporated association with its headquarters in Washington, D.C. Its 32 members are the commercial air carriers serving the United States. Its purposes are to encourage cooperation between its members and to represent the common interests of its member airlines to public and governmental agencies. In fulfillment of these purposes the ATA has participated in litigation throughout the nation concerning the scheduled airlines.

Additionally seeking to be admitted as defendants are 12 major air carriers: Allegheny Airlines, Inc., American Airlines Inc., Braniff International, Delta Airlines, Inc., Eastern Airlines, Inc., Mohawk Airlines, Inc., National Airlines, Inc., Northwest Airlines, Piedmont Airlines, Trans-Caribbean Airlines, Inc., Southern Airways, Inc. , and United Airlines, Inc. Each of the foregoing is a Delaware corporation except Braniff (Nevada), Mohawk (New York), National (Florida), Northwest (Minnesota) and Piedmont (North Carolina). Each holds a certificate of public convenience from the Civil Aeronautics Board (hereinafter "CAB") to serve Newark Airport, where each maintains a place of business.

Petitioners seek to alter only two paragraphs of the judgment, specifically paragraph "C" which prescribes a preferential

runway system for jet aircraft, and paragraph "I" which limits jet aircraft operations at Morristown Municipal Airport (hereinafter "MMU").

Plaintiffs were six individual citizens and four small municipalities. The latter, Hanover, Morris Township, Florham Park and Madison, have a total population of less than 60,000. The citizens of these towns residing or working in close proximity bitterly complained of the nuisance created by the operations at Morristown Municipal Airport.

Defendants Town of Morristown and Morristown Airport Commission state that they have no objection to intervention by the two associations and the 12 airlines. Plaintiffs strenuously resist.

Seven months after entry of judgment, on October 21, 1970, the Federal Aviation Administration (hereinafter "FAA"), through its airport traffic control tower at MMU, issued a "tower bulletin" prescribing the official noise abatement procedures and preferential runway system for jet aircraft using the airport. Petitioners say that because this tower bulletin was promulgated by FAA, an agency created by the Congress of the United States, it must be considered as preempting this field of regulation. Virtually all of the owners of nonmilitary, noncommercial jet aircraft in the United States are members of NBAA. All of the fixed based jet aircraft owners at MMU are members of NBAA. It is urged that paragraph "I" forbids owners of jet aircraft access to national airspace for almost one-half of the time each week; that access to the national airspace is a right granted by federal statute; therefore "I," which limits the hours of operation on the week days and Sundays, is in conflict with supreme federal law. Asserting interference and a direct burden on instrumentalities of interstate commerce, petitioners argue that it is beyond the power of any other agency of government, including this court, to impose regulations. If intervention is granted, petitioners desire to reopen the case for consideration of the judgment and offer to present legal arguments to show that this court was without

jurisdiction to grant the relief in the judgment because it infringes on an area preempted by Congress and is an undue burden on interstate commerce. Petitioners also state that, if permitted to intervene, they will present testimony in open court on the "national and regional implications of the judgment" to support reasons for vacating paragraph "I" on general equitable grounds. The ultimate goal is to lift the restraints on operations contained in paragraphs "C" and "I" of the judgment.

Petitioners assert that they can bring to this court's attention information not previously considered and pertinent facts developed subsequent to the experimental judgment. They state that they are not asking for a reconsideration of any matters fully presented and considered for determination except as may be changed by later developments. Attorneys for petitioners say that they were required to await the preparation of the transcript to review it in order to present arguments on intervention. This, they aver, is the reason for delay, for the transcript was not substantially completed until May 10, 1971.

R. 4:33-1 provides for intervention as of right if those who seek to intervene (a) make timely application, (b) claim an interest relating to the subject matter of the action, (c) are so situated that the disposition of the action may as a practical matter impair or impede their ability to protect that interest, and (d) that interest is not adequately represented by the existing parties. The four standards are conjunctive.

R. 4:33-1 is taken substantially from F.R. Civ. P. 24, 28 U.S.C.A. Rule 24. There are few decisions in our State concerning R. 4:33-1 and therefore we must look to those cases decided by the federal courts. Testut v. Testut , 32 N.J. Super. 95, 99 (App. Div. 1954). Petitioners rely upon Cascade Natural Gas Corporation v. El Paso Natural Gas Co. , 386 U.S. 129, 87 S. Ct. 932, 17 L. Ed. 2d 814 (1967). There a state, a customer and a competitor, sought to intervene in a government anti-trust suit after the suit had been tried, appealed to the United States Supreme Court and remanded

for divestiture proceedings. The state's interest was to insure competitiveness within the market in that state; the customer's interest was to be protected from paying indirectly the costs of an unfair divestiture, and the competitor's interest was to insure adequate supply from El Paso. The District Court denied intervention. The Supreme Court reversed, holding that the applicants for intervention should have been permitted to intervene as of right. That case is readily distinguishable from the case at bar. There the total effect of the ordered divestiture proceeding was to become a new trial and certainly the state, the customer and the competitor would have had a right to intervene had the divestiture trial been a separate trial and had the application been made forthwith. There is no question that a liberal interpretation has been given by the United States Supreme Court to F.R. Civ. P. 24. There are, ...

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