On certification to the Superior Court, Appellate Division, whose opinion is reported at 146 N.J. Super. 438 (1977).
For affirmance as modified -- Justices Sullivan, Pashman, Clifford, Schreiber and Handler. Dissenting in part -- Judge Conford. The opinion of the court was delivered by Handler, J. Conford, P.J.A.D. (temporarily assigned), concurring and dissenting.
[77 NJ Page 442] The question for decision is whether a local zoning ordinance which prohibits the use of land within a municipality as a helistop is invalid because the federal or
state governments have preempted the power of local governments to regulate the establishment and location of helistops.
Plaintiff Garden State Farms (Garden State) operates over eighty-five retail stores selling milk and related food products throughout the area. Some of these outlets are supplied by the company's main production facility in Wyckoff, New Jersey which is contiguous to another parcel of land it owns in the Borough of Hawthorne. This parcel is a vacant lot situated on what is "generally conceded" to be a heavily traveled thoroughfare, opposite a residential neighborhood.
In order to facilitate fast and efficient transportation between its other production facilities and its Wyckoff plant, Garden State sought to construct a helicopter landing pad on its Hawthorne property. A statement of such intention was submitted to the Board of Commissioners of the Borough which, on October 6, 1971, adopted a resolution granting the company permission to construct the helistop. On October 29, 1971, following several hearings, the Director of the Division of Aeronautics of the New Jersey Department of Transportation granted Garden State the required state license to operate a helistop. On December 6, 1973, however, this license was suspended due to irregularities in the administrative proceedings surrounding the grant of the license. At present the license remains suspended, with further action apparently dependent in part upon the outcome of this litigation.
Opposition to the proposed helistop from neighborhood residents resulted in the institution of suit in the Superior Court, seeking a restraining order enjoining Garden State from constructing the facility on the grounds that the proposed land use violated the Borough zoning ordinance and thus required a variance from the ordinance. The Law Division, however, denied the requested relief, holding that a variance was not required because the intended use of the
helistop was an accessory use of Garden State's land which was permitted by the Borough's local statute. Boublis v. Garden State Farms, Inc., 122 N.J. Super. 208, 215 (Law Div. 1972).*fn1
Following this decision, the Board of Commissioners adopted Ordinance 1123, which amended the existing zoning ordinance to prohibit the principal or accessory use of any land, buildings or rooftops for the purpose of accommodating the taking off or landing of airplanes or helicopters. Thereafter Garden State instituted this action in lieu of prerogative writ to have Ordinance 1123 declared invalid. Various municipal officials and the Borough are defendants as well as five local residents. Also joined in the action was the Division of Aeronautics as a nominal party plaintiff.
At trial city officials testified that in deciding to enact the Ordinance, they were concerned that the landing and taking off of helicopters would have an adverse impact upon the "serenity" of the community; that the general quality of life would be adversely affected by low-level air traffic with its concomitant increased noise, air pollution and automobile traffic and its anticipated distraction and anxiety to residents. In turn Garden State attacked the Ordinance contending that local governments were without power to regulate aviation by virtue of federal and state preemption of aviation matters and that the ordinance violated N.J.S.A. 40:55-32 (since repealed and superseded by N.J.S.A. 40:55D-62), in that it was not reasonably related to the preservation of the public health, safety and welfare of the Borough and its inhabitants and was not enacted pursuant to a "comprehensive plan".
The trial court ruled that Ordinance 1123 was a valid amendment to the Borough's zoning ordinance and dismissed Garden State's complaint. Garden State Farms, Inc. v. Bay, 136 N.J. Super. 1 (Law Div. 1975). With respect to Garden State's federal preemption claim, the trial court decided that while the Federal Aviation Act of 1958, 49 U.S.C.A. § 1301 et seq., preempted state and local authority in the area of the operation and avigation of aircraft, 136 N.J. Super. at 13, that Act required cooperation by the federal regulatory authorities with state and local aeronautical agencies, 49 U.S.C.A. §§ 1324(b), 1343(i), and thus contemplated the retention by state and local governments of the power to regulate ground activities not directly involving aircraft operation. 136 N.J. Super. at 13-14. With respect to the state preemption arguments, the trial court ruled that although the Aviation Act of 1938, N.J.S.A. 6:1-20 et seq., embraced a comprehensive state regulation to promote safety and aeronautical progress, it did not necessarily preclude municipalities from determining whether or not aeronautical facilities should be constructed within their boundaries, 136 N.J. Super. at 17-18; the trial court noted that in other provisions the Legislature expressly granted authority to municipal and county governments to acquire and use land for airports which implied a legislative grant of some regulatory responsibility. Id. at 18. The court also determined that the justification of the zoning ordinance upon grounds of public health, safety and welfare was supported by the record. Id. at 22-23. Finally, the trial court found that the existing zoning ordinance itself satisfied the "comprehensive plan" requirement of the enabling statute, id., and that the broad zoning scheme continued to be a "comprehensive plan" after it was amended by Ordinance 1123. 136 N.J. Super. at 24.
Garden State filed a notice of appeal to the Appellate Division, which reversed the trial court. 146 N.J. Super. 438 (App. Div. 1977). The appellate panel found no substance to the plaintiff's federal preemption argument. Id.
at 442. With respect to the state preemption claim, the court ruled that the Aviation Act of 1938 does not preclude municipal zoning power to limit or prohibit the use of land for aeronautical facilities, but that such an exercise of local zoning authority would be ineffective if it conflicted with the powers granted by other legislation to the State or one of its agencies. Id. at 442-443. The court held that the State Aviation Act gave to the Commissioner of Transportation the power to supervise the location and regulation of helistops and heliports, and that a municipal zoning ordinance could not operate as a bar to the Commissioner's grant of a license for that use. Id. at 443-444. As a result, the Appellate Division did not reach Garden State's "comprehensive plan" attack. Thereafter a petition for certification was filed and granted by this Court. 74 N.J. 280 (1977).
We agree with the courts below that state and local governmental efforts to regulate the location of helistops are not preempted by the federal government. See 136 N.J. Super. at 11-14; 146 N.J. Super. at 442. Federal preemption will be found where the subject activity intrinsically requires uniformity of regulation, Cooley v. Bd. of Wardens of the Port of Phila., 53 U.S. (12 How.) 299, 319, 13 L. Ed. 996, 1005 (1851), or where Congress has either expressly or impliedly assumed regulatory control of the ...