On certification to Superior Court, Law Division.
For reversal -- Justices Sullivan, Pashman, Clifford, Schreiber and Handler and Judge Conford. For affirmance -- None. The opinion of the court was delivered by Conford, P.J.A.D. (temporarily assigned).
This appeal is before the Court on direct certification to the Superior Court, Law Division,*fn1 75 N.J. 584 (1977). The primary question for determination is whether use of vacant land as a helistop should be deemed a valid accessory use to property occupied as the headquarters of a construction company and used also for storage of its heavy equipment, within the meaning of a zoning ordinance permitting accessory uses "if customarily incident to a permitted use." Aside from the matter of the helistop use, the general use to which the property was being put was concededly permitted in the Limited Industrial Zone where located.
Defendant corporation was convicted in the Paramus Municipal Court on a charge of violation of the zoning ordinance "by committing the following offense(s): Art. 14A
Block 5202, Lot 7 Heliport prohibited." On appeal to the Bergen County Court, that tribunal held defendant's operation on the property of a helistop was permissible as an accessory use but that defendant was nevertheless in violation of the ordinance because it had not first secured site plan approval, a building permit and a certificate of occupancy for the heliport use. It was fined $100 and $10 costs. Defendant appealed to the Appellate Division from the conviction; the borough cross-appealed from the part of the ruling holding the heliport use a valid accessory use.*fn2
The operative facts here involved are essentially undisputed. Defendant (P.T. & L.) is a construction company which maintains offices and a machinery storage area on property it has owned in the Borough of Paramus for 25 years. The property is located in a Limited Industrial Zone with the nearest residential area over 1000 feet away. The population of Paramus is approximately 30,000, and the borough is a part of a metropolitan area which is heavily built-up and densely populated.
P.T. & L. primarily handles road building projects. It does business in New York, New Jersey, Connecticut and other eastern states. Two or three times a week P.T. & L.'s executives travel to various locations to survey new construction projects and to supervise ongoing ones. Driving to and from these sites takes from 3 to 3 1/2 hours each way. To reduce the time, P.T. & L. purchased two helicopters
and established a helistop on its property. It was placed on a dirt covered area 100 feet from the edge of the motor vehicle parking lot. This use has not restricted other uses of the 3-acre lot. The only physical change in the helistop area was the laying of gravel thereon. This was done to lessen the dust from landings and take-offs.
On June 3, 1974, P.T. & L. applied to the Division of Aeronautics of the New Jersey Department of Transportation for a helistop license. See N.J.S.A. 6:1-20 et seq. On June 18, 1975 the Chief of the Bureau of Inspection & Aircraft Operation of the Division of Aeronautics wrote to the Mayor of Paramus, advising him of the application and stating that the Bureau had inspected the proposed site and found that it met the physical requirements for licensing as a Private Use Helistop. The mayor was invited to forward his objections and comments or a request for a public hearing by July 2, 1975, the date scheduled for the processing of P.T. & L.'s application. Thereafter the borough asked P.T. & L. for a site plan of the proposed location and the latter complied, although stating at the same time that the information sought on the application form did not appear relevant to a helistop which did not entail any construction. About six months passed with no action by the planning board or the State bureau, whereupon a summons was issued by the borough to P.T. & L. following the landing of a helicopter on the property in February 1976.
We first consider the borough's complaint against the county court's finding that the heliport was a valid accessory use. The pertinent sections of the zoning ordinance are as follows.
19-BIL-200: PERMITTED USES -- LIMITED INDUSTRIAL ZONE
Within any BIL zone, no building, structure or area or lot or land, shall be used in whole or in part for other than one or more of the
permitted uses expressly set forth herein, or the special exception uses expressly set forth herein, or the accessory uses accessory and subordinate to the permitted uses and exception uses expressly set forth herein.
All uses not expressly permitted by this ordinance in the BIL zone district are prohibited.
19-BIL-200-150: ACCESSORY USES
An accessory use shall be permitted provided:
a) The use is customarily incident to a permitted use; and
b) Subordinate to the main permitted use; and
c) Not in violation of the provisions set ...