On appeal from the Superior Court of New Jersey, Law Division, Somerset County
Dreier, Brochin and Kleiner. The opinion of the court was delivered by Brochin, J.A.D.
Plaintiffs filed suit in the Law Division against the New Jersey Department of Transportation, the municipalities of Branchburg, Bedminster, Readington and Alexandria, New Jersey, and the operators of several airports in or adjacent to those municipalities. Alleging that they own property in the defendant municipalities, plaintiffs seek a declaratory judgment that the Air Safety and Hazardous Zoning Act of 1983, N.J.S.A. 6:1-80 to -88, and the New Jersey Airport Safety Act of 1983, N.J.S.A. 6:1-89 to -97,*fn1 are unconstitutional, and that their enactment and the promulgation of regulations to implement them constitute an impermissible taking of private property for public use without just compensation.
During the course of the litigation, the Department of Transportation moved before the Law Division to transfer the case to this court. The Law Division denied the motion, and the Department of Transportation applied to our court for leave to appeal and for a stay of discovery pending appeal. We denied both motions. The Department then moved before the Supreme Court for leave to
appeal the denial of the transfer motion and for a stay pending appeal. The Supreme Court denied the motions, but directed that "the Law Division shall consider the facial challenge to the constitutionality of N.J.S.A. 6:1-89, et seq., prior to discovery regarding and consideration of any other issues raised in the litigation."
In accordance with the Court's direction, plaintiffs moved before the Law Division for a summary judgment declaring the Acts facially unconstitutional. The trial court held that the Acts were not facially unconstitutional and denied their motion in an extensive opinion read into the record. The Department of Transportation then moved to dismiss the complaint or, alternatively, for summary judgment. In substance its argument was that since the court had rejected plaintiffs' contention that the Acts were facially unconstitutional, plaintiffs' only remaining argument was that the Acts were unconstitutional as applied. Since the Acts have not yet been applied to the plaintiffs, the constitutionality of the Acts as applied cannot yet be determined. The Law Division agreed, relying on Lucas v. South Carolina Coastal Council, 505 U.S. , 112 S. Ct. 2886, 120 L. Ed. 2d 798 (1992). In a second detailed opinion on the record, it granted summary judgment dismissing the action with prejudice for the "basic reason . . . that this matter is simply not ripe for adjudication."
Plaintiffs appeal from the judgment of dismissal. They argue before us, as they did before the Law Division, that the Air Safety and Hazardous Zoning Act of 1983, N.J.S.A. 6:1-80 to -88, and the New Jersey Airport Safety Act of 1983, N.J.S.A. 6:1-89 to -97 are unconstitutional both facially and as applied to them.
The Air Safety and Zoning Act of 1983 and Relevant Regulations
The Air Safety and Hazardous Zoning Act of 1983 defines an "airport hazard" as "(1) any use of land or water, or both, which creates a dangerous condition for persons or property in or about
an airport or aircraft during landing or taking-off at an airport, or (2) any structure or tree which obstructs the air space required for the flight of aircraft in landing or taking-off at an airport." N.J.S.A. 6:1-82b. It defines an "airport safety zone" as "any area of land or water, or both upon which an airport hazard might be created or established, if not prevented as provided in this supplementary act." N.J.S.A. 6:1-82c. The Act directs the Commissioner of Transportation to "adopt rules and regulations which delineate airport safety zones for all airports subject to this amendatory and supplementary act," N.J.S.A. 6:1-83, and to adopt rules and regulations "promulgating standards which specify permitted and prohibited land uses, including the specification of the height to which structures may be erected and trees allowed to grow, within airport safety zones." N.J.S.A. 6:1-84. The Commissioner's authority to promulgate these rules and regulations is subject to the statutory caveat that "No standard adopted . . . shall be construed to require the removal, lowering or other change or alteration of any structure or tree not conforming to the standard when adopted or amended, or otherwise interfere with the continuance of any nonconforming use," N.J.S.A. 6:1-84, unless the structure, tree or nonconforming use is purchased or acquired by condemnation. N.J.S.A. 6:1-88. The Commissioner is also authorized to permit the creation of a non-conforming use at the request of the municipality in which it would be located. N.J.S.A. 6:1-86. Every municipality which has an airport safety zone within its boundaries is required to adopt an ordinance incorporating the standards promulgated by the Commissioner of Transportation and providing for their enforcement, N.J.S.A. 6:1-85, and to "notify, in writing, each owner of record of property located within an airport safety zone of the boundaries of the airport safety zone," N.J.S.A. 6:1-85.1a. Every New Jersey realtor must notify a prospective buyer of real estate if the property to be purchased is within an airport safety zone. N.J.S.A. 6:1-85.2.
N.J.A.C. 16:62-1.1 defines various terms used in the regulations; in general, the definitions paraphrase those in the statute itself.
"Airport hazard area"*fn2 is defined as "any area. . . . upon which an airport hazard might be created or established if not prevented as provided by this chapter." "Airport hazard" is defined, in substance, as "any use of land or water," including use of the site for any tree or man-made structure, which creates a condition that would be dangerous for persons or property on the ground or for aircraft taking off or landing at the airport.
N.J.A.C. 16:62-5.1 enumerates the uses which are permitted in an airport hazard area and in the "clear zones," "runway end subzones" and "runway subzones" which are encompassed within an airport hazard area. An airport hazard area consists of a runway subzone, two runway end subzones, and two clear zones. N.J.A.C. 16:62-3.2(b). A clear zone is an area of approximately eight acres at each end of a runway. N.J.A.C. 16:62-3.5 defines a "clear zone" as an area, trapezoidal in shape, the two parallel sides of which would be perpendicular to and bisected by a continuation of the center line of the runway; one parallel side of the trapezoid, located adjacent to the end of the runway, is 250 feet in length; the other parallel side, located 1000 feet beyond the end of the runway, is 450 feet in length.
N.J.A.C. 16:62-22 presents sketches of a "runway subzone" and of a "runway end subzone." These are areas within an airport hazard zone which are larger than, and which encompass, the clear zones. A "runway subzone" is, in general terms, an area bisected by a runway, rectangular in shape, 2350 feet in width, and either the same length as the runway or somewhat shorter. N.J.A.C. 16:62-3.3. "Runway end subzones" are, in general terms, trapezoidal areas, beginning at each end of a runway and extending 3000 feet beyond the end of the runway; the base of the trapezoid adjacent to the end of the runway is 2350 feet in width; the
parallel base of the trapezoid farther from the end of the runway is 850 feet in ...