On appeal from Superior Court, Law Division, Morris County.
Lora, Michels and Larner. The opinion of the court was delivered by Larner, J.A.D.
[168 NJSuper Page 294] This case presents another round in the never-ending struggle between the Town of Morristown and the Township of Hanover relating to the use of the Morristown Municipal Airport owned and operated by Morristown on its lands in Hanover. The authority to operate such an airport in another municipality stems from the provisions of N.J.S.A. 40:8-1 to 7. The litigious history between the municipalities can be traced by reference to the following reported opinions: Aviation Services v. Hanover Tp. Bd. of Adj. , 20 N.J. 275 (1956); Shell Oil Co. v. Hanover Tp. Bd. of Adj. , 38 N.J. 403 (1962); Hanover Tp. v. Morristown , 108 N.J. Super. 461 (Ch. Div. 1969); see also,
The present action was brought by Morristown to set aside as invalid Ordinance 8-78 adopted by Hanover on May 11, 1978 and to enjoin its enforcement. This ordinance consists of an amendment to the zoning ordinance of the township limiting in several particulars the permitted uses of lands in the Airport District, i.e. , the lands operated as a municipal airport by the Town of Morristown. The amendment provides:
AN ORDINANCE TO AMEND THE "LAND USE ORDINANCE" OF THE TOWNSHIP OF HANOVER, COUNTY OF MORRIS AND STATE OF NEW JERSEY
BE IT ORDAINED, by the Township Committee of the Township of Hanover, County of Morris and State of New Jersey, as follows:
Section 1. Article 9, entitled, "ZONING REGULATIONS," Section 919 "A AIRPORT DISTRICT" of the above entitled ordinance is hereby deleted and the following substituted in its place and stead:
" 919. A AIRPORT DISTRICT
A. PRIMARY INTENDED USE. This zone district is designed for the operation of an airport for general aviation, other than commercial air carriers, as regulated by the Federal Aviation Agency and the applicable agencies of the State of New Jersey and accessory uses customarily incident thereto. Permitted uses, including primary and accessory uses, shall be limited to a landing strip, control tower, hangars, offices for airport personnel, equipment for the supply of fuel to aircraft, and facilities for the repair, maintenance and testing of aircraft permanently based at the airport. For the purpose of this ordinance, the term permanently based aircraft shall mean aircraft registered with the Commissioner of Transportation of the State of New Jersey pursuant to N.J.A.C. 16:56-1.1 for which the application for registration filed with the Division of Aeronautics, Department of Transportation, shall disclose that the aircraft is based at the airport located within this zone district and said aircraft shall have been based at the airport for 90 consecutive calendar days.
B. PROHIBITED USE. All uses are prohibited other than those uses which have been specifically permitted in Section 919 A of this ordinance. ...