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Somerset Air Service, Inc. v. Township of Bedminster

June 21, 2007

SOMERSET AIR SERVICE, INC., PLAINTIFF-RESPONDENT,
v.
THE TOWNSHIP OF BEDMINSTER; GEOFFREY PRICE, BEDMINSTER TOWNSHIP ZONING OFFICER; AND PAUL FERRIERO, BEDMINSTER TOWNSHIP ENGINEER, DEFENDANTS-RESPONDENTS, AND MALCOLM S. FORBES, JR. AND SABINA FORBES; TOWNSHIP OF BRIDGEWATER; PHOEBE WESELEY; AND BEDMINSTER, BRANCHBURG, BRIDGEWATER CONCERNED CITIZENS COALITION, INC., INTERVENORS-RESPONDENTS.
SOMERSET AIR SERVICE, INC., PLAINTIFF-RESPONDENT,
v.
THE TOWNSHIP OF BEDMINSTER; GEOFFREY PRICE, BEDMINSTER TOWNSHIP ZONING OFFICER; PAUL FERRIERO, BEDMINSTER TOWNSHIP ENGINEER, DEFENDANTS-RESPONDENTS, AND MALCOLM S. FORBES, JR. AND SABINA FORBES; PHOEBE WESELEY; AND BEDMINSTER, BRANCHBURG, BRIDGEWATER CONCERNED CITIZENS COALITION, INC., INTERVENORS-RESPONDENTS, AND TOWNSHIP OF BRIDGEWATER, INTERVENOR-APPELLANT.
SOMERSET AIR SERVICE, INC., PLAINTIFF-RESPONDENT,
v.
THE TOWNSHIP OF BEDMINSTER; GEOFFREY PRICE, BEDMINSTER TOWNSHIP ZONING OFFICER; PAUL FERRIERO, BEDMINSTER TOWNSHIP ENGINEER, DEFENDANTS-RESPONDENTS, AND MALCOLM S. FORBES, JR. AND SABINA FORBES; AND TOWNSHIP OF BRIDGEWATER, INTERVENORS-RESPONDENTS, AND PHOEBE WESELEY; AND BEDMINSTER, BRANCHBURG, BRIDGEWATER CONCERNED CITIZENS COALITION, INC., INTERVENORS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, L-419-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 5, 2007

Before Judges Coburn, Axelrad and Gilroy.

These three back-to-back appeals, which we now consolidate, relate to the 2004 relocation of the State's NorthSTAR medevac helicopter operation from University Hospital in Newark to Somerset Airport ("Somerset Airport" or "the Airport") in the Township of Bedminster ("Township" or "Bedminster"). Somerset Airport is a private airport, owned and operated by Somerset Air Service, Inc. ("SAS"). NorthSTAR is a state-operated emergency medical service helicopter unit that services the northern half of the State of New Jersey. It was established pursuant to the New Jersey Emergency Medical Service Helicopter Response Program, N.J.S.A. 26:2K-35 to -38.

The appeals challenge a Law Division order dated April 18, 2006, which enjoined defendants from interfering with NorthSTAR's medevac operation at the Airport pending a final decision in the matter; declared that a medevac helicopter operation was a permitted aeronautical activity at the Airport, and that office facilities for the medevac operation were permitted as accessory uses to the permitted Airport use; declared void, and of no force and effect, the action of the Bedminster Township Zoning Officer and Bedminster Township Engineer, who concluded that a medevac helicopter operation's presence at the Airport required variance approval from the Township of Bedminster Zoning Board of Adjustment ("Board of Adjustment"); declared that jurisdiction for SAS's application for conditional use and site plan approval, in order to renovate an existing hangar to create office space that will accommodate NorthSTAR, was vested in the Township of Bedminster Planning Board ("Planning Board"), as opposed to the Board of Adjustment, and therefore remanded the case to the Planning Board; and joined the Planning Board and Board of Adjustment as indispensable parties.

Defendants, Board of Adjustment and the Planning Board (collectively referred to as "the Boards"), and defendants-intervenors Township of Bridgewater ("Bridgewater"), Phoebe Weseley ("Weseley"), and the Bedminster, Branchburg, Bridgewater Concerned Citizens Coalition ("Citizens Coalition") filed separate appeals, raising the following procedural and substantive issues: whether the Law Division Judge erred (1) by granting injunctive and declaratory relief, considering SAS failed to exhaust its administrative remedies before the Board of Adjustment; (2) by not adding indispensable parties until the litigation had been decided; (3) by granting declaratory and injunctive relief to SAS; (4) by declaring that a medevac helicopter operation was a permitted aeronautical activity at Somerset Airport, and that all ancillary and support facilities were permitted accessory uses; (5) by declaring that the Planning Board was the proper venue to consider SAS's application for conditional use and site plan approval.

I.

Somerset Airport was established in 1946 in the Township of Bedminster. It is privately owned and operated by SAS and has served as a base for numerous helicopter operations, including, for example, a corporate helicopter owned by the Puralator Corporation, an air charter service, a helicopter school, and State Police helicopters. SAS provides office and hangar space, as well as restroom facilities, to support flight operations at the airport. In the past, it also provided a restaurant/snack bar in the Airport's administration building.

The Airport is located in Bedminster's R-10 (rural residential) zone, where it is a permitted conditional use.

Bedminster's 2003 Master Plan contains these remarks about the Airport:

A conditional use in this district is an airport existing at the time of adoption of the 1946 Zoning Ordinance. The George Walker Field (formerly Somerset Airport) has operated as a permitted use since 1946 with conditions related to tenure, tract delineation, and runway length.

During the Planning Board's development of the master plan during the early 1990's, numerous public comments at a series of public information meetings addressed the issues of aircraft noise and potential environmental hazards associated with airport operations.

The Planning Board recognizes the right of the airport to continue operations, and such rights would exist even for a nonconforming use. The role of the airport as a recreational and education facility has a long history in Bedminster Township. However, the potential for expanded functions (increased business travel, reliever status, and introduction of jet aircraft) has previously prompted concerns over airport plans for runway length expansion and other development proposals.

Conditional use treatment of the airport provides a level of assurance that the conditions that have previously defined this permitted use will be enforceable under the Zoning Ordinance. Failure to adhere to these conditions will require that the expansion plans become the subject of review by the Zoning Board of Adjustment under N.J.S.A. 40:55D-70(d). The proofs required to secure such relief will help to assure that no substantial detriment to the public good will result.

In 1986, the Legislature created the New Jersey Emergency Medical Service Helicopter Response Program ("the Program"). N.J.S.A. 26:2K-35 to -38. The Program was established in the Division of Local and Community Health Services of the Department of Health. N.J.S.A. 26:2K-36(a). But the helicopters used in the Program are maintained and piloted by the State Police. N.J.S.A. 26:2K-35(d); N.J.S.A. 26:2K-37.

The Legislature mandated the creation of at least two hospital-based emergency medical service helicopter units.

N.J.S.A. 26:2K-36(a). NorthSTAR services the northern portion of the State, in coordination with the University of Medicine and Dentistry of New Jersey ("UMDNJ"). SouthSTAR services the southern portion of the State. N.J.S.A. 26:2K-35(g). Combined, NorthSTAR and SouthSTAR fly approximately 1500 medevacs per year, with SouthSTAR flying about 100 more than NorthSTAR. About seventy-five percent of the calls are for trauma scene transports, the other twenty-five percent are inter-hospital transports.

The staff of NorthSTAR and SouthSTAR are responsible for "render[ing] life support services to an accident or trauma victim, as necessary, in the course of providing emergency medical transportation." N.J.S.A. 26:2K-36(b). Critically ill and injured patients, including but not limited to victims of motor vehicle accidents, burns, and explosions, have the best chance for survival if transported within sixty minutes of their injury to one of the trauma centers in the State, where they can receive the specialized care and services that their injuries require. Air medical transport by helicopter is the quickest, and therefore the most effective, means of critical patient transport. By contrast, ground transport is significantly slower and more dangerous, thereby lessening the patients' likelihood of survival.

Medevac helicopter operations are commonly located at airports and "nearly half of the registered air medical rotor wing programs are based at airports." In New Jersey, for example, at the outset of the Program, NorthSTAR and SouthSTAR, then collectively referred to as JEMSTAR, operated out of Mercer County Airport, in West Trenton. Subsequently, NorthSTAR moved to Morristown Municipal Airport, in Morristown, and SouthSTAR moved to Southern Jersey Regional Airport, near Voorhees. There are four additional air medical transport programs based at New Jersey airports, including: Atlantic Health Air-One, based at Morristown Municipal Airport; MONOC Medevac, based at Mercer County Airport, West Trenton; University Medevac Atlantic CARE, based at Hammonton Airport; and Air Ambulance Express, based at Mercer County Airport, West Trenton.

Airports provide "on site fuel availability, advanced weather technology, maintenance support, and aviation facilities that support navigational needs of the medevac pilots." In addition, airports typically provide both hangar space for the helicopters, and office space for the medevac staff, which generally includes such things as couches and microwave ovens. Indeed, some office space is seemingly required for medevac helicopter operations, since federal law imposes flight time restrictions upon medevac flight crews and mandates that the crews have "[a]n adequate place of rest." 14 C.F.R. § 135.271(f); United States v. Rocky Mountain Helicopters, Inc., 704 F. Supp. 1046, 1049-50 (D. Utah 1989). At their base airports, NorthSTAR and SouthSTAR have been provided with both hangar space and office space to house flight operations centers.

Elizabeth McKenzie, a licensed professional planner retained by SAS, submitted a certification in which she opined that medevac support facilities were permitted at Somerset Airport. Based upon her study and analysis, including review of the governing municipal land use regulations and visits to similar airports in Alexandria Township and Montgomery Township, New Jersey, she concluded that it is customary and even necessary to permit office and support space to be created in hangars occupied by various entities, including private pilots, helicopter flight schools, helicopter rental and charter businesses, aerial photographers and numerous other entities typically occupying hangar space at an airport. Not all of these can nor should they be accommodated in a single central airport office.

In February 2005, in response to a number of concerns, including increased calls for service to the central and western portions of the State, and delayed response times to those areas from its then-current location at University Hospital in Newark, NorthSTAR moved its operations to Somerset Airport. The move significantly improved response times, particularly to the western portion of the State, and also eliminated the need to fly to Newark Liberty International Airport for fuel.

NorthSTAR's presence at the Airport has upset some people in the area. Indeed, SAS's applications for various permits and approvals from Bedminster's local officials and governmental bodies, in order to accommodate NorthSTAR's operations, have been challenged at virtually every step of the process, and have spawned a multiplicity of litigations that were consolidated below for the purposes of case management.

On November 16, 2005, SAS applied to the Planning Board for conditional use approval and related site plan approval to permit interior renovations of an existing hangar building in order to accommodate NorthSTAR's operations. Alternatively, SAS sought conditional use approval and a related amendment to the previously approved site plan for the Airport property to permit the renovations. The proposed renovations of the hangar building would create an entry vestibule and closet, two restrooms, a kitchenette, and four offices.

The relevant Township ordinances provide, in pertinent part, as follows:

Before a construction permit or certificate of occupancy shall be issued for any conditional use as permitted by this chapter, application shall be made to the Planning Board. The review by the Planning Board of a conditional use shall include any required site plan review pursuant to this chapter. . . . Site plan review of a modification to a previously approved conditional use shall not be required where the renovations or alterations to the interior or exterior of the building or structure do not involve any enlargement of the building or major structural change as determined by the Construction Code Official. (Ord. #95-20, § 1)

In connection with SAS's site plan application, the Township's professional planner, Frank Banisch, prepared a review letter dated January 5, 2006. Banisch questioned whether an office for the medevac helicopter operation was a permitted use of the Airport property, and he concluded that SAS's proposed ...


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