Michels, Morgan and Milmed.
Plaintiffs appeal from a judgment in the Chancery Division which vacated the following paragraphs of its prior judgment in this action:
C. Having determined from the evidence that the wind rose patterns at the Morristown Airport indicate that the prevailing winds favor the utilization of Runway 5-23 approximately ninety percent of the time, it is directed that after the completion of the extension of said runway, that the preferential runway at Morristown shall be 5-23. This runway shall be utilized as the preferential one by all jet aircraft landing and taking off at Morristown, except as follows:
(1) When the cross wind component on 5-23 is found to be in excess of twenty (20) knots;
(2) When an emergency landing or take-off situation exists;
(3) When the use of Runway 12-30 shall be requested and or directed by the Airport Tower personnel in the interests of flight safety. Furthermore, such preferential runway program when initiated shall be under the direction and guidance of F.A.A. control tower personnel and enforced by the management of Morristown Airport.
I. Oral argument having been heard from counsel and a proffer of proof having been made by counsel for defendants on the subject of restricting jet aircraft at Morristown Airport during certain hours and good cause being shown therefore, the Court directs that jet aircraft will be prohibited from take-offs or landings each day between the hours of 9:00 P.M. until 7:00 A.M. and on Sundays, except during the hours of 1:00 P.M. until 3:00 P.M., unless an emergency exists, or the interests of flight safety require the utilization of the airport under the guidance and direction of the F.A.A. tower personnel.
Plaintiffs instituted this action in 1969 to enjoin the planned alteration and extension of facilities at the Morristown Municipal Airport and to curtail the use and operation of the airport. The airport is located entirely within
boundaries of the Township of Hanover and is owned by the Town of Morristown and operated by Morristown Airport Commission. Plaintiffs claimed, among other things, that the improvement of the Morristown Municipal Airport would violate the zoning ordinance of the Township of Hanover and that the projected use of the airport as a result of the improvements, particularly by jet-powered aircraft, would create noise and other hazards detrimental to the health, safety and welfare of the residents of the plaintiff municipalities. Judge Stamler in the Chancery Division refused to enjoin the planned alterations and extension of the facilities and permitted defendants to extend and resurface the runway designated at "5-23" and to increase the weight-bearing capacity of that runway as well as the other runway designated "12-30" and to carry out the other phases of the planned improvement of the airport. However, Judge Stamler further held that Runway 5-23, when completed, would be, with certain exceptions, the preferential runway at Morristown Municipal Airport for all jet aircraft and limited the hours that jet aircraft could land and take off. See Hanover Tp. v. Morristown, 108 N.J. Super. 461 (App. Div. 1969).
The Chancery Division retained jurisdiction of the action, declaring its judgment to be "experimental in nature" and reserving to the parties the right to apply on notice for modification of or relief from any of the provisions set forth in paragraphs (C) through (I). Approximately 2 1/2 years after entry of the judgment defendants moved before the Chancery Division for relief from the provisions of paragraphs (C) and (I). Judge Brown in the Chancery Division, relying upon the recent United States Supreme Court decision in Burbank v. Lockheed Air Terminal, 411 U.S. 624, 93 S. Ct. 1854, 36 L. Ed. 2d 547 (1973), held that the regulation of aircraft noise was preempted by the Federal Government and vacated paragraphs (C) and (I) of the prior judgment. Plaintiffs appeal.
In Burbank v. Lockheed Air Terminal, supra, the United States Supreme Court found that the pervasive nature of federal regulation of aircraft noise preempted the field. The case arose when the City of Burbank adopted an ordinance which made it unlawful for (1) a jet aircraft to take off from the Hollywood Burbank Airport between 11 a.m. of one day and 7 a.m. of the next day, and (2) the operator of that airport to allow such aircraft to take off from the airport during that period. The operator of the airport and Pacific Southwest Airlines sought to enjoin its enforcement. The District Court declared the ordinance unconstitutional holding that it violated both the Supremacy Clause and the Commerce Clause. The Court of Appeals affirmed on the basis of the Supremacy Clause, finding the field of aircraft noise regulation preempted and the ...