On appeal from the Department of Transportation, Division of Aeronautics.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 5, 2012 -
Before Judges Nugent and Haas.
Appellant Township of Colts Neck (Township) appeals from the March 1, 2012 final determination of the Director of the Division of Multimodal Services, Department of Transportation (DOT), to grant a Helistop-Restricted Use license to Trump National Golf Club Colts Neck, LLC (Trump). After reviewing the record in light of the contentions advanced on appeal, we affirm.
On March 2, 2011, Trump submitted an application to DOT for a Helistop-Restricted Use license. A "helistop" is defined in DOT's regulations as an area of defined dimensions, either at ground level or elevated on a structure designated for the landing or take off of helicopters, but not limited in use to that sole purpose. Helistops generally provide minimal or no support facilities and may be located in multiple use areas such as parking lots, dock areas, parks, athletic fields or other suitable open areas. [N.J.A.C. 16:54-1.3.]
Trump proposed to locate the helistop roughly in the middle of the golf course, just north of the clubhouse facility and adjacent to the practice green. The golf course is located on approximately 310 acres and is bounded by Route 537 to the north, Route 34 to the east, and Route 18 to the south. The helistop would consist of porous pavers with a grass-covered surface designed to look like a lawn. The primary approach path would enter over a military facility to the south, cross over Route 18, and then descend over wooded golf course property to the helistop.
As required by N.J.A.C. 16:54-2.1(a), Trump obtained Federal Aviation Administration (FAA) airspace allocation approval for the helistop. The FAA "determined that the proposed private-use landing area will not adversely affect the safe and efficient use of navigable airspace by aircraft."
As part of an application, an applicant must provide "the final determination, from the appropriate planning agency having jurisdiction[.]" N.J.A.C. 16:54-2.1(a)6i. In order to comply with this requirement, Trump applied to the Township's Zoning Board of Adjustment (Board) for a use variance and site plan approval for a helistop. The Board held public hearings on the application on March 17, April 21, May 19, and June 16, 2011. The Board denied Trump's application in a resolution adopted on July 21, 2011. In the resolution, the Board noted that the Township's zoning ordinance expressly prohibited helistops. It further found there would be a significant impact on the rural character of the area because of the noise that would be generated by helicopters.*fn1 On September 1, 2011, Trump submitted the Board's resolution, and a detailed summary of the testimony provided at the four days of public hearings, to DOT as part of the helistop application process.
While the Board objected to Trump's proposal, the Monmouth County Planning Board approved it. In a January 23, 2012 decision, this agency found "there are no impacts to county roads or county bridges by this application."
As required by N.J.A.C. 16:54-2.3, Trump published a public notice of its license application, inviting written comments or objections regarding its application. Eighteen public comments in opposition to the application were received and made part of the record. The Board's attorney also made two separate submissions to DOT concerning the proposed helistop. These submissions included a comprehensive position paper on behalf of the Township in opposition to the application and a detailed response to the submission made by Trump's attorney.
On February 3, 2012, DOT determined that Trump's license application was complete. Two of DOT's aeronautical operations specialists were assigned to review the application against the licensing criteria set forth in N.J.A.C. 16:54-2.5(a). A third specialist tabulated the results of this review. Both of the reviewing specialists found that the project would have no negative impact on public health safety and welfare. They recommended that the application be approved, subject to certain restrictions.
The application was then reviewed by the Director of DOT's Division of Multimodal Services (Director). On March 1, 2012, the Director approved Trump's application for a Helistop-Restricted Use license. On May 1, 2012, the Director filed a written amplification of his findings of fact and conclusions of law pursuant to Rule 2:5-1(b).
The Director determined that Trump's licensing application did not present a "contested case" under the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15, and therefore, there was no need to conduct an adversarial hearing. The Director also declined to conduct a "public informational hearing" as permitted under N.J.A.C. 16:54-2.4, because there were no material facts in dispute and credibility was not an issue in the application. Because the "issues were clearly framed through the submissions of [Trump's] attorney, the [Township's] Zoning Board attorney and the [Board's] resolution denying the application for a variance[,]" the Director found that a hearing was not required.
The Director considered all of the factors set forth in N.J.A.C. 16:54-2.5(a) in approving the application. These factors included the "public health safety and welfare, aviation development, surrounding land uses, local land use ordinances, topography, noise characteristics, air traffic patterns proposed, air operation demand, aircraft movement operations, capacity of nearby aeronautical facilities, [and] economic factors[.]" Based "on aeronautical considerations," the Director found Trump was "entitled to a helistop license."
However, the Director went on to specifically consider the Township's, the residents', and the Board's objections and specifically addressed ...