This is an action in lieu of prerogative writs wherein plaintiff seeks to have an amendment to the zoning ordinance of the Borough of Hawthorne declared invalid and void. The factual record is comprised of a stipulation of facts agreed to by the parties and evidence elicited at a plenary hearing held pursuant to R. 4:69-1. From that record the court has made findings of fact in accordance with its inherent power and constitutional authority, N.J. Const. (1947), Art. VI, § V, par. 4, and, upon application of relevant provisions of law thereto, has concluded that plaintiff's attack upon the Hawthorne ordinance must fail.
The Borough of Hawthorne is located in the southeast portion of Passaic County, bounded on the north and east by
the Township of Wyckoff and the Boroughs of Ridgewood, Glen Rock and Fair Lawn, all located in Bergen County, and to the south and west by the City of Paterson and the Boroughs of Prospect Park and North Haledon, all in Passaic County. The population of the municipality is approximately 19,500 in an area of 3.63 square miles. It is a developed community with less than 339 acres of land still unimproved. Land use is devoted mainly to one and two-family homes, garden apartments, industry, office and commercial business and other public and private uses -- churches, schools and parks, for example -- which are characteristic of moderate-income suburban communities.
Plaintiff Garden State Farms, Inc. (Garden State) is the operator of an extensive dairy products business in Northern New Jersey, with over 85 retail stores selling milk and related food products. These outlets are supplied by nine processing and packaging plants owned by Garden State and located in New Jersey, New York and Pennsylvania. Among these plants is the company's main production facility located in Wyckoff on land contiguous to a parcel of land in Hawthorne owned by Garden State. This property, known as Lot 4 in Block 286, is a vacant lot situated at the intersection of Hopper Street and Braen Avenue within an I-1 Industrial Zone as described in Ordinance No. 1175 of the borough (1970 revision). The area north of Braen Avenue and west of Hopper Street is partially within an R-1 Residential Zone (one-family homes) and an R-2 Residential Zone (two-family homes), and the area south of Braen Avenue is partially within an I-1 Industrial Zone and an R-2 Residential Zone.
Garden State has sought to construct and maintain a helicopter landing pad on the above-described Hawthorne tract in order to facilitate fast and efficient transportation between its other production facilities and its Wyckoff plant. A statement of such intention, contained in a letter to Mayor Bay from Peter H. Sandfort, president of Garden State, was
submitted to the board of commissioners of the borough on October 6, 1971. At a regular meeting on that date the commissioners adopted a resolution granting the company permission to construct the helipad. Apparently this action was taken in the belief that local approval was a necessary prerequisite for issuance of a license by the Division of Aeronautics of the New Jersey Department of Transportation, such license being required by law for operation of a private helipad. N.J.S.A. 6:1-43. On February 21 and April 24, 1973 hearings were conducted on Garden State's application for a license at the Municipal Building in Hawthorne by Thomas W. Coyle, then Director of Aeronautics in the Department of Transportation. In his "Recommended Findings of Fact and Law and Conclusions" submitted to the Commissioner of Transportation on September 28, 1973 Coyle advised "that a license to operate a Class III VFR Daylight operation, private use only Helistop be issued to Garden State Farms." This recommendation was implemented by issuance of License No. H-289 to Garden State on October 29, 1973. However, on December 6, 1973 this license was suspended by Coyle because of irregularities in the administrative proceedings surrounding the grant of the license. At present the license remains suspended, with further action on it dependent at least in part upon the outcome of this lawsuit.
The action of the borough commissioners approving Garden State's intention to construct a helipad met with widespread objection from neighborhood residents who were opposed to the company's proposed use. The objecting property owners instituted suit in Superior Court seeking injunctive relief to bar construction of the helistop on the grounds that the proposed land use violated the borough zoning ordinance and thus required a variance from the ordinance. Such relief was denied and this court, in an opinion reported as Boublis v. Garden State Farms, Inc. , 122 N.J. Super. 208 (Law Div. 1972), held that regulation of land use for a helipad
was within the zoning power of the municipality and that a variance was not required for such a purpose because it comprised an accessory use under the borough's zoning ordinance.
On or about March 7, 1973, following both the Boublis decision and commencement of the Division of Aeronautics hearings on Garden State's license application, the borough clerk received a petition in opposition to the use of the helistop which called for a popular referendum to amend the zoning ordinance to prohibit helipads within the municipality. Although this petition was rejected by the clerk, Ordinance No. 1223 was introduced at the April 18, 1973 meeting of the board of commissioners and finally adopted on May 2, 1973. That ordinance, which is the subject of the instant litigation, reads as follows:
AN ORDINANCE TO FURTHER AMEND THE ZONING ORDINANCE OF THE BOROUGH OF HAWTHORNE, REVISION OF 1970, HERETOFORE ADOPTED AS ORDINANCE 1175 OF THE BOROUGH OF HAWTHORNE.
The Board of Commissioners of the Borough of Hawthorne, in the County of Passaic and the State of New Jersey, do hereby ORDAIN as follows:
SECTION 1. That the Zoning Ordinance of the Borough of Hawthorne, Revision of 1970, heretofore adopted as Ordinance No. 1175 of the Borough of Hawthorne shall be and hereby is amended by the addition to Section 5 thereof of Paragraph 11, as follows:
11. In all districts the use of any land or property or any buildings or roof tops or structures, or the construction, development or alteration of any structure, roof or building, for the purpose of accommodating the taking off or the landing of airplanes, helicopters or any and all other types of airborne vehicles is specifically prohibited whether a principal use or accessory use.
SECTION 2. Any and all parts or provisions of Ordinance 1175, and any amendments or supplements thereto which are inconsistent or in conflict with this Ordinance are hereby repealed to the extent of said Conflict, and all remaining provisions of Ordinance 1175 as amended and supplemented are hereby confirmed and shall remain in full force and effect.
SECTION 3. This Ordinance shall take effect upon final passage and publication as provided by law.
The testimony of Mayor Bay, one of the witnesses called at the plenary hearing, sheds some light upon the genesis
of this ordinance. According to the mayor, the October 6, 1971 resolution of the commissioners granting Garden State permission to construct the helipad was adopted not only because such approval was considered necessary for action by the Division of Aeronautics but also in the belief that the borough was powerless to prevent the helistop from being built. This legal conclusion was not reached with the advice of counsel but rather on the basis of representations made to the mayor by Sandfort, Garden State's president, to the effect that regulation of helistops had been preempted by state and federal authority. Apparently as a result of the Boublis decision, the mayor and commissioners concluded that the borough in fact did have power over the proposed helipad use and thereafter chose to act accordingly. Mayor Bay quite candidly acknowledged that the expression of public sentiment evidenced by the petition played a part in the board's determination of how it should exercise its land use prerogative over Garden State's proposed use. The result was Ordinance No. 1223.
In deciding to enact an ordinance banning the takeoff and landing of aircraft within the borough Mayor Bay testified that he and the commissioners were concerned that such activity would have adverse impact upon the "serenity" of the community. The mayor expressed the belief that the general quality of life within the borough would be adversely affected by low-level air traffic. Such factors as increased noise and air pollution, potential increases in automobile traffic and the anticipated distractions and anxiety to residents caused by ascending and descending aircraft, all were mentioned by the witness as considerations in the decision to adopt the ordinance. While Mayor Bay conceded that none of these conclusions were supported by a survey of expert or lay opinion, he said that he based his conclusions on personal observations and his knowledge of Hawthorne and its citizens.
Also testifying at the plenary hearing was Francis R. Gerard, present Director of Aeronautics in the Department
of Transportation. Gerard outlined the functions of his Department under the Transportation Act of 1966, N.J.S.A. 27:1A-1 et seq. , and indicated that one of the main problems faced by the Division of Aeronautics is locating air terminal facilities to implement the transportation requirements of the State. This is consistent with the witness' observation that under a working arrangement with the Federal Aviation Administration (F.A.A.) aviation problems on the ground are subject to state regulation while those in the air are within the province of federal control exercised by the F.A.A. Gerard identified the role of his Division in placement of facilities as being two-fold: to promote development of aviation to insure that facilities are safely established where needed, and to investigate applications and license terminal sites to guarantee that they are situated, maintained and operated in accordance with recognized standards of avigational and ground safety. Normal procedure of the Division is to work in coordination with local government officials so that these ends are served while at the same time accommodating the needs and desires of the localities. As a matter of policy Gerard stated that the initiative would not be taken to place a facility within a municipality where it was not wanted, although he offered the opinion that under its stautory authority his Department could dictate location of facilities to municipalities if it was felt that such action was necessary to serve the transportation needs of the population.
In response to questioning specifically directed to the Borough of Hawthorne, Gerard testified that there is no present or anticipated need to locate an airport for fixed-wing aircraft in the borough but that every municipality in which there is economic activity, including Hawthorne, should provide or permit helistops in order to promote business development. He noted that helicopters could land and take off safely from the borough despite its proximity to metropolitan New York airports, and he iterated that Garden State's helipad license is currently suspended because of the hearing
officer's failure to comply with administrative regulations and not because of ...