Halpern, Botter and Kolovsky. The opinion of the court was delivered by Kolovsky, J.A.D.
[146 NJSuper Page 440] Plaintiff Garden State Farms, Inc. (Garden State), which desires to maintain a helistop on its vacant land in Hawthorne, appeals from a judgment dismissing
its complaint. The complaint had sought an adjudication that an amendment to the Hawthorne zoning ordinance which prohibited the use of any land and buildings in the municipality "for the purpose of accommodating the taking off or the landing of airplanes, helicopters or any and all other types of airborne vehicles" is "invalid and void." The trial judge ruled to the contrary, rejecting Garden State's contentions that (1) "federal and state regulation have occupied the field in regulating aviation to the exclusion of local enactments," and (2) "the [amendatory] ordinance violated the enabling statutes from which the municipality derives its local zoning authority." 136 N.J. Super. at 11.
Garden State, on its appeal, repeats the arguments it had unsuccessfully urged to the trial court. One of those arguments, phrased as follows:
is also advanced in the brief filed by the Attorney General on behalf of the Division of Aeronautics in the State Department of Transportation, which had been joined as a nominal party plaintiff by order of the trial judge.
The appellate argument, thus phrased as assertions that the zoning ordinance is "void" and that "municipal legislation on the subject of aviation" is "precluded" by the State Aviation Act, beclouds the relief which Garden State actually seeks. That relief, as disclosed by the record detailed in the trial judge's opinion, is a determination that the zoning ordinance amendment is not a bar to Garden State's obtaining a license from the Commissioner of Transportation (Commissioner) permitting it to maintain a helistop on its Hawthorne property.*fn1
We are satisfied that Garden State is entitled to such a determination even though we disagree with the contentions that the zoning ordinance is void and that its adoption is precluded by relevant federal and state enactments and regulations. Under our cases the zoning power granted to municipalities includes the power to adopt an ordinance limiting or prohibiting the use of land for aeronautical facilities, see Yeomans v. Hillsborough Tp. , 135 N.J.L. 599 (Sup. Ct. 1947), and Ridgewood Air Club v. Ridgewood Bd. of Adj. , 136 N.J.L. 222 (Sup. Ct. 1947), albeit that, as hereinafter shown, such limitation or prohibition will be deemed ineffective in circumstances in which it conflicts with supervening state enactments or regulations.
We agree with the trial judge, substantially for the reasons given by him, that there is no substance to Garden State's argument that "The United States Congress has enacted legislation preempting the field of aircraft travel and the ordinance enacted is violative of the supremacy clause."
Further, the State Aviation Act, N.J.S.A. 6:1-20 et seq. , does not by its terms preclude the adoption of such a zoning ordinance. Indeed, as hereinafter noted, the Commissioner, in regulations adopted by him pursuant to the power to adopt rules and regulations granted to him by the act, has chosen to give controlling effect to such municipal zoning ordinances in the case of two of the five classes of aeronautical facilities for which licenses are issued.
However, the fact that a municipality has the power to adopt zoning ordinances limiting or prohibiting the use of property as an aeronautical facility is not dispositive. An ordinance adopted pursuant to such zoning power is ineffective when, in the particular circumstances, it conflicts
with the powers granted by other legislation to the State, to one of its agencies or to some ...