On appeal from the Superior Court of New Jersey, Law Division, Sussex County.
Before Judges Dreier, Keefe and Wecker.
The opinion of the court was delivered by: Wecker, J.A.D.
Argued September 30, 1997
The question presented by this appeal is whether a private landing strip for small aircraft is a permitted accessory use of farmland property within the meaning of the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. (MLUL), and the local zoning ordinance. For reasons we shall explain in this opinion, we conclude that it is not. In so concluding, and to the extent that our decision is inconsistent therewith, we disagree with the holding of Schantz v. Rachlin, 101 N.J. Super. 334 (Ch. Div. 1968), aff'd o.b., 104 N.J. Super. 154 (App. Div. 1969).
Plaintiff William Tanis, Jr., appeals from a judgment in favor of defendants in his action in lieu of prerogative writs against the Township of Hampton, the Township Committee of the Township of Hampton, *fn1 and the Zoning Board of Adjustment of Hampton Township ("the Board"). Plaintiff brought the action to challenge the Board's determination that he was not permitted to use a portion of his 168-acre property as a landing strip for a single engine airplane. Plaintiff did not seek a use variance for the landing strip, despite advice from the attorney for the Board that the landing strip required a variance.
Plaintiff contended before the Board and again in the Law Division that the landing strip should be permitted because it constituted a pre-existing non-conforming use; because it was a principal permitted use under the local zoning ordinance; and because it was a permitted accessory use. The Board held a full evidentiary hearing and rejected each of those arguments. In a comprehensive and well-reasoned oral opinion delivered on April 26, 1996, based upon the record at the municipal level, Judge Reginald D. Stanton concluded that because the procedure at the municipal level was, as plaintiff contended, somewhat "anomalous," the Board's ruling would not be accorded the usual presumption of validity. However, he rejected plaintiff's argument that procedural improprieties in the Board's consideration of his application required the court to vacate the Board's resolution. On the merits, the Judge agreed with the Board, concluding that the landing strip was not a permitted use in any of the three zones spanned by plaintiff's property; that there was insufficient evidence to establish a prior nonconforming use; and that because the Hampton Township zoning ordinance prohibited all but expressly permitted accessory uses, and private landing strips were not among the expressly permitted uses, plaintiff's landing strip was not a permitted use.
Judge Stanton distinguished this case from Schantz v. Rachlin, supra, on the ground that the Hampton Township ordinance prohibited all but specific, expressly permitted accessory uses, whereas the ordinance at issue in Schantz defined an accessory use as one "clearly incidental or subordinate to the principal . . . use . . . ." and did not include a general restriction against all other uses. In Schantz the court dismissed plaintiff's application to restrain defendant's use of a private landing strip and to compel its demolition, holding that such use did not violate the local zoning ordinance.
On appeal to this court, plaintiff argues that the Board's procedure was improper because Board members preJudged plaintiff's application and therefore could not render an impartial decision. Plaintiff argues that the landing strip is a valid accessory use, and local regulation of such use is preempted by state and federal law. *fn2
The material facts are substantially undisputed. Plaintiff purchased his 168-acre tract in 1982. The tract had been part of a 4000-acre farm owned by plaintiff's family since the late 1940's or early 1950's. In January 1993, plaintiff built a house and began living on the property, where he raises cattle and horses and grows corn and hay. The property has extensive frontage on State Highway 206, near a variety of commercial and industrial uses. A portion of plaintiff's property is located in each of three zones: R-3 (single-family residential), HC-RD (highway commercial-research development), and HC-MFG (highway commercial-manufacturing industrial district). Plaintiff proposes a landing strip which would approximately bisect his property in the HC-RD and HC-MFG zones. The landing strip does not enter the R-3 (residential) zone. According to plaintiff's planner, the nearest residential developments are "thousands of feet away" from the airstrip, while according to the Board, there are several subdivisions "immediately adjacent" to plaintiff's property. The apparent factual dispute is explained by the fact that the referenced subdivisions are adjacent to that portion of plaintiff's property that lies within the R-3 zone, and not adjacent to the landing strip.
Plaintiff received his pilot's license in 1970 and maintains an aircraft sales and air charter business at a public airport in another municipality. Aircraft land on plaintiff's Hampton property about once a month, either for social or business purposes. Plaintiff owns a 1938 Piper Cub, a collector's item, which he wants to be able to land on a natural surface runway in a hay field on his property. The plane has a 75 horsepower engine, a cruising speed of 70 miles per hour, and weighs 650 pounds. It needs 400 feet to take off and 300 feet to land. Plaintiff's proposed landing strip is 3,000 feet long and 50 feet wide and would also accommodate a light twin-engine aircraft. Plaintiff has predicted that two aircraft may be landing at the facility within five years.
The Hampton ordinance includes a general definition of an accessory use as one "customarily associated with and  subordinate and incidental to the principal . . . use . . . ." The ordinance also lists permitted principal and accessory uses in each zone and includes a restrictive provision. Entitled "Prohibited Uses," § 108-4 provides: "All uses not expressly permitted in this chapter are prohibited." The R-3 district expressly permits single-family dwellings and farms as principal uses. Permitted accessory uses in the R-3 zone are farmstands, swimming pools, barns, greenhouses, toolsheds, and off-street parking. The HC-RD district permits agriculture, offices, industrial plants, wholesale distribution centers and warehouses, laboratories, planned industrial developments, and a variety of retail facilities as principal uses. Permitted accessory uses are off-street parking, fences, walls, garages, storage buildings, and temporary construction trailers. In the HC-MFG zone, permitted principal uses include retail, offices, manufacturing, warehousing and wholesale distribution centers. Accessory uses are off-street parking and storage buildings.
In order to maintain a "restricted use" (private) landing strip, plaintiff must obtain a license from the Department of Transportation, Office of Aviation (the "DOT"). N.J.A.C. 16:54-2.1(a). In response to plaintiff's application for a temporary and permanent aeronautical facility license in September 1994, neither the Federal Aviation Administration (FAA) nor the DOT itself had any objection to the proposed landing strip. Indeed, a DOT inspector described the location as ideal for such a restricted use facility as defined by N.J.A.C. 16:54-1.3. However, the DOT followed its usual policy of considering "surrounding land uses [and] local land use ordinances" before issuing a license. N.J.A.C. 16:54-2.5(a).
Plaintiff first approached local officials in the fall of 1994, informally seeking approval for his landing strip. In December 1994 the attorney for both the planning board and the zoning board, Robert T. Morgenstern, advised plaintiff to apply for a use variance. Nevertheless, on April 24, 1995, plaintiff wrote to the DOT, asserting that he had a right to use the property for landing aircraft because:
"[s]ince we have owned this property, it has been used by myself and others as a landing strip for power aircraft, gliders, hot air balloons and a drop area for paratroopers from US Army Reserve at Stewart Air Force Base in Newburg [sic], New York. This use has taken place continuously since 1951, it predates any Hampton Township Zoning Regulations. I believe my use is "grandfathered" and a "pre-existing use" prior to Hampton Township Zoning Laws."
Based on plaintiff's assertion that the use of the property predated the township's zoning ordinance and was therefore a protected nonconforming use, the DOT informed plaintiff's counsel by letter dated May 8, 1995, that it intended to issue a license. The DOT sent a copy of the May 8 letter to the Mayor of Hampton Township, who evidently referred it to the planning board. At its May 18, 1995, meeting the planning board instructed Morgenstern to notify both the DOT and plaintiff that the landing strip was neither permitted nor a valid, prior nonconforming use. Morgenstern did so by letter dated May 23, 1995.
The zoning board addressed the issue at a meeting on June 7, 1995, apparently because the Board had become aware that plaintiff was using the property to land his plane. The zoning board instructed Morgenstern to (1) notify plaintiff that he needed a variance and (2) inform DOT that plaintiff was violating the zoning ordinance. Morgenstern did so by letter dated June 8, 1995. Plaintiff received no notice that his proposal would be ...