Argued: November 12, 2014.
Approved for Publication April 10, 2015.
On appeal from the Department of Transportation.
Dennis M. Galvin argued the cause for appellant ( The Galvin Law Firm, attorneys; Mr. Galvin, on the briefs).
Nicole T. Minutoli, Deputy Attorney General, argued the cause for respondent State of New Jersey Department of Transportation ( John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Minutoli, on the brief).
Salvatore Salibello, attorney for respondent Pio Costa Enterprises, joins in the brief of respondent New Jersey Department of Transportation.
Before Judges FISHER, NUGENT and MANAHAN. The opinion of the court was delivered by MANAHAN, J.S.C. (temporarily assigned). FISHER, P.J.A.D., concurring.
[440 N.J.Super. 313] MANAHAN, J.S.C. (temporarily assigned)
Fairfield Township (Fairfield) appeals from the final determination of the Director of the Division of Multimodal Services, Department of Transportation (DOT), granting a Helistop " Special Use" license to Pio Costa Enterprises upon application of one of its principals, Anthony Pio Costa (Pio Costa). After reviewing the record in light of the contentions advanced on appeal and the applicable law, we affirm.
Pio Costa is an owner of property located in an industrial park in Fairfield. Pursuant to Fairfield's zoning ordinance, the use of the property for helistops is prohibited. Nonetheless, commencing in 1994, Pio Costa was granted a temporary helistop license by the DOT. The temporary license was renewed in 1995 and 1996. In 1997 Pio Costa applied for a permanent helistop license which [440 N.J.Super. 314] the DOT issued for the time period of January 1, 1998 to January 31, 1999. After expiration of the license, Pio Costa continued to use the property as a helistop.
Fairfield instituted a civil action in the United States District Court naming Pio Costa and various corporate entities as defendants relative to the use of the helistop. In a ruling on March 20, 2006, a district judge denied Pio Costa's motion for summary judgment noting the validity of the zoning ordinances was not preempted by the Federal Aviation Administration.
The district judge remanded the matter to the Superior Court of New Jersey for disposition.
Subsequent to the remand, and upon the filing of an order to show cause by Fairfield, the trial court entered an order temporarily restraining the defendants from " operating or permitting to be operated any and all helicopters upon, on or from the subject property pending further order of the court." A hearing took place on April 18, 2007. After oral argument, the judge continued the restraints. The judge noted in the decision that Pio Costa failed to apply to the DOT for a license.
Thereafter, Pio Costa filed an application with the Division of Aeronautics of the DOT seeking a permanent helistop license. In response, the DOT denied the issuance of the requested license predicated upon the requirement that Pio Costa apply to the appropriate planning authority for permission to maintain the proposed helistop. N.J.A.C. 16:54-2.1(a)(6).
In 2010, Pio Costa applied for a use variance. At the conclusion of three hearing dates, the Board of Adjustment (Board) denied the application in a resolution. Pio Costa then filed a complaint in lieu of prerogative writs.
Pio Costa's attorney informed the DOT by letter about the Board's denial of the application. In a written response, the Deputy Attorney General on behalf of the DOT, advised the attorney that the DOT " will not approve your client's application for a permanent license." The letter further advised a waiver of [440 N.J.Super. 315] the application's requirements may be requested but " that it is unlikely" a waiver would be granted " in light of [Fairfield's] denial of [Pio Costa's] application for a variance." Notwithstanding this communication and in clear contravention to its advisement, the DOT did permit the application to proceed which ultimately resulted in the issuance of a license in February 2012. Fairfield was never notified of the application's " revived" status nor was it consulted for its input.
In furtherance of the revived process, Pio Costa was required to publish public notice of the application, which he did. There were no responses filed with the DOT to the publications. During the process, two specialists from the DOT provided Pio Costa with a list of site conditions that were required to be corrected prior to the issuance of a license. In February 2012, Pio Costa corrected the site condition issues and provided the required documentation to the DOT. Pio Costa advised the DOT that the helistop was ready for inspection. Two specialists from the DOT completed an evaluation using licensing criteria set forth in N.J.A.C. 16:54-2.5. Pursuant to the evaluation, the specialists found there were no negative impacts on health and safety and defendant was issued a license on February 28, 2012. The license was purportedly served by counsel upon Fairfield on March 6, 2012.
When Fairfield became aware of the use of the property as a helistop, it filed a timely appeal of the DOT decision. Subsequent to a pre-argument conference, the appeal was stayed pending the outcome of the prerogative writ action. After Pio Costa dismissed the action with prejudice, the stay of the appeal was lifted.
During the pendency of the appeal and in accordance with Rule 2:5-1(b), the Director of the Division of Multimodal Services
(Director) filed a " Statement of Reasons for Decision." Thereafter, [440 N.J.Super. 316] the DOT filed a motion, which we granted, seeking remand for further consideration of issues raised on appeal.
Upon remand, the DOT requested Fairfield and Pio Costa to provide additional arguments. Fairfield argued the helistop was contrary to sound planning and unsafe due to its proximity to an airport, a cellular tower, a car wash, a neighborhood of residential homes and a highway. In response thereto, and after noting the objections of Fairfield, the DOT altered the ...