Aviation Services v. Board of Adjustment of Hanover Tp., A--42

• Citation: 119 A.2d 761,20 N.J. 275
• Decision Date: 09 January 1956
• Docket Number: No. A--42,A--42
• Parties: AVIATION SERVICES, Inc., and the Town of Morristown, Plaintiffs-Respondents, v. BOARD OF ADJUSTMENT OF the TOWNSHIP OF HANOVER et al., Defendants-Appellants.
• Court: United States State Supreme Court (New Jersey)

Page 275

20 N.J. 275

119 A.2d 761

AVIATION SERVICES, Inc., and the Town of Morristown, Plaintiffs-Respondents, v. BOARD OF ADJUSTMENT OF the TOWNSHIP OF HANOVER et al.,

Defendants-Appellants.

No. A--42.

Supreme Court of New Jersey.

Argued Nov. 21 and 28, 1955.

Decided Jan. 9, 1956.

David Young, 3rd, Boonton, argued the cause for defendants-appellants (Young & Sears, Boonton, attorneys).

Edward LeC. Vogt, Morristown, argued the cause for plaintiff-respondent Aviation Services, Inc. (Schenck, Price, Smith & King, Morristown, attorneys).

E. Marco Stirone, Morristown, attorney for plaintiff-respondent Town of Morristown.

The opinion of the court was delivered by

BURLING, J.

During the period of 1931 to 1941 the Town of Morristown (hereinafter referred to as Morristown) acquired a 235-acre tract of land within the boundary of the Township of Hanover (hereinafter referred to as Hanover). Pursuant to agreements between the United States of America and Morristown the property was developed for airport purposes and to this end runways, hangars and other buildings were constructed. The airport development was initiated in 1941 and the use has continued to the present day, Morristown having assumed control of the operation after World War II.

In 1946 Hanover Township enacted a zoning ordinance which incorporated the airport lands into a Residence B zone. Airports were impliedly excluded from residential zones from the terms of this ordinance and the preexisting aviation field became a non-conforming use. Subsequent amendments to the zoning plan have worked no change in this status.

Morristown, in the operation of the airport, has made leases of the facilities to private persons and corporations. Plaintiff Aviation Services, Inc., is a lessee under one of these agreements. It operates an aircraft maintenance service and a flight school, conducting its business from a building at the airport. In May of 1953 Aviation Services, Inc., applied to the building inspector of Hanover Township for a permit to enable it to reconstruct and enlarge the building it had leased, an improvement which Morristown had previously authorized. The application was denied and an appeal was taken to the Board of Adjustment of Hanover Township without success.

Thereafter Aviation Services, Inc., filed a complaint in lieu of prerogative writ against the building inspector and Board of Adjustment of Hanover Township. Morristown intervened as a party plaintiff and filed a separate complaint, alleging, Inter alia, that the provisions of the ordinance as applied to the property in question 'are invalid and void' either because the lands are owned by 'a municipal corporation' or by virtue of the unsuitability of the lands for residential purposes the ordinance imposes 'restrictions and prohibitions which are arbitrary, unreasonable and capricious.' The challenge thus made caused Hanover Township to intervene as a party defendant. Morristown then moved for summary judgment upon two counts of its complaint which raised this single issue:

Is the Morristown Municipal Airport subject to the zoning ordinance of Hanover Township?

A comparable motion was made by Aviation Services, Inc., upon its complaint.

The trial court answered this question in the negative, reasoning by analogy from the determination in Town of Bloomfield v. New Jersey Highway Authority, 18 N.J. 237, 113 A.2d 658 (1955), where we held that in the absence of legislative provision to the contrary the Highway Authority, in carrying out the purpose for which it was created, was not subject to the municipal zoning ordinance of Bloomfield.

Defendants filed an appeal to the Superior Court, Appellate Division, and because of the general public importance of the question we certified the cause prior to a review below. R.R. 1:10--1(a).

In 1929 the Legislature authorized municipal governing bodies to 'acquire, establish, construct, own, control, lease, equip, improve, maintain, operate and regulate' airports Within the municipal limits, R.S. 40:8--2 (L.1929, c. 325), N.J.S.A. This enactment was amended by L.1947, c. 85 to permit operation of airports 'within or without' the municipal boundaries. The original legislation enabled municipalities to acquire property by condemnation if necessary, R.S. 40:8--4 and 5, N.J.S.A., characterizing property acquisition for airport facilities as 'a public purpose' and 'a matter of public necessity.'

Relying upon this statutory background Morristown argues that the airport operation constitutes an essential governmental function serving the public need and by virtue of its nature is immune to the zoning power of Hanover Township. The latter party contends the use to be proprietary, 'a business pure and simple,' entitled to no greater sanctity than a private corporation. The issue thus joined represents a conflict between the interests of a municipality in establishing and maintaining an airport outside its jurisdiction and the integrity of the zoning scheme embracing the territory sought to be utilized.

It is unnecessary to dwell upon the public attributes of a municipal airport operation. The purposes thus served have long been recognized as responsive to the common weal. Dysart v. City of St. Louis, 321 Mo. 514, 11 S.W.2d 1045, 62 A.L.R. 762 (Sup.Ct.1928); Brooks v. Patterson, 159 Fla. 263, 31 So.2d 472 (Sup.Ct.1947); Wentz v. City of Philadelphia, 301 Pa. 261, 151 A. 883 (Sup.Ct.1930). Over 27 years ago, Mr. Justice Cardozo stated with prophetic wisdom:

'We think the purpose to be served is both public and municipal. A city acts for city purposes when it builds a dock or a bridge or a street or a subway. Sun Printing & Publishing Ass'n v. City of New York, 152 N.Y. 257, 46 N.E. 499, 37 L.R.A. 788. Its purpose is not different when it builds an airport. Wichita v. Clapp, 125 Kan. 100, 263 P. 12. Aviation is to-day an established method of transportation. The future, even the near future will make it still more general. The city that is without the foresight to build the ports for the new traffic may soon be left behind in the race of competition.' Hesse v. Rath, 249 N.Y. 436, 164 N.E. 342 (Ct.App.1928).

An overwhelming number of courts have stated municipal airport projects to be 'governmental' where questions of public financing are presented, Dysart v. City of St. Louis supra; State ex rel, Hile v. City of Cleveland, 26 Ohio App. 265, 160 N.E. 241 (Ct.App.1927); McClintock v. City of Roseburg, 127 Or. 698, 273 P. 331 (Sup.Ct.1929); Wentz v. City of Philadelphia, 301 Pa. 261, 151 A. 883 (Sup.Ct.1930); Krenwinkle v. City of Los Angeles, 4 Cal.2d 611, 51 P.2d 1098 (Sup.Ct.1935); Goswick v. City of Durham, 211 N.C. 687, 191 S.E. 728 (Sup.Ct.1937), and as serving a 'public use' where property acquisitionby condemnation is in issue, City of Wichita v. Clapp, 125 Kan. 100, 263 P. 12, 63 A.L.R. 478 (Sup.Ct.1928), State ex rel. Chandler v. Jackson, 121 Ohio St. 186, 167 N.E. 396 (Sup.Ct.1929); City of Spokane v. Williams, 157 Wash. 120, 288 P. 258 (Sup.Ct.1930); Burnham v. Mayor and Aldermen of Beverly, 309 Mass. 388, 35 N.E.2d 242, 135 A.L.R. 750 (Sup.Jud.Ct.1941). In some jurisdictions the attitude is reversed in matters of municipal tort liability and the airport function is subjected to a 'proprietary' appellation, Mollencop v. City of Salem, 139 Or. 137, 8 P.2d 783, 83 A.L.R. 315 (Sup.Ct.1932); Pignet v. City of Santa Monica, 29 Cal.App.2d 286, 84 P.2d 166 (Cal.App.1938); Peavey v. City of Miami, 146 Fla. 629, 1 So.2d 614 (Sup.Ct.1941); Rhodes v. City of Asheville, 230 N.C. 134, 52 S.E.2d 371 (Sup.Ct.1949) rehearing denied 230 N.C. 759, 53 S.E.2d 313; Behnke v. City of Moberly, 243 S.W.2d 549 (Mo.App.1951).

This court has recognized that whether a proposed project constitutes a proper municipal undertaking in the light of the benefits thereby accruing to the public generally will often depend upon the 'social needs of the times,' City of Trenton v. Lenzner, 16 N.J. 465, 470, 109 A.2d 409 (1954), and in this regard it is important to recognize that the Constitution of 1947, Art. IV, Sec. VI, par. 3, relating to acquisition of private property by political subdivisions and agencies of the State, specifically mentions airports together with highways and parkways. But we think it unnecessary to a determination of the issue in this case to denominate a municipal airport undertaking a 'governmental' as opposed to a 'proprietary' function. Enlightenment must some from the legislative design in vesting municipalities with the authority to establish and maintain airport facilities.

Town of Bloomfield v. New Jersey Highway Authority, supra, involved the immunity of a superior authority from a local zoning ordinance. This factor was also present in Hill v. Borough of Collingswood, 9 N.J. 369, 88 A.2d 506 (1952), where we held the Camden County Park Commission created pursuant to R.S. 40:37--195 et seq., N.J.S.A., not to be amenable to the zoning power of the Borough of Collingswood although the park lands were within the municipal boundaries. One general principle reflected by these two cases which bears upon the problem Sub judice is this: where the immunity from local zoning regulation is claimed by any agency or authority which occupies a superior position in the governmental hierarchy, the presumption is that such immunity was intended in the absence of express statutory language to the contrary. See, e.g., Tim v. City of Long Branch, 135 N.J.L. 549, 53 A.2d 164, 171 A.L.R. 320 (E. & A.1947). There is no basis for the presumption where, as here, the element of superior governmental status is not present, and unless the legislative provisions upon which Morristown relies bestow the municipal immunity argued for the contention must fail.

The issue presented in this case has caused us to investigate other statutory enactments whereby municipalities are delegated powers of condemnation which may be exercised beyond the corporate limits in aid...