Boublis v. Garden State Farms, Inc.

• Decision Date: 22 November 1972
• Citation: 122 N.J.Super. 208,299 A.2d 763
• Parties: Jules BOUBLIS et al., Plaintiffs, v. GARDEN STATE FARMS, INC., et al., Defendants.
• Court: New Jersey Superior Court

Page 208

122 N.J.Super. 208

299 A.2d 763

Jules BOUBLIS et al., Plaintiffs, v. GARDEN STATE FARMS, INC., et al., Defendants.

Superior Court of New Jersey Law Division.

November 22, 1972.

Kenneth S. Stein, Paterson, for plaintiffs (Hunziker, Hunziker, Stein & Jones, Paterson, attorneys).

Herman Jeffer, Paterson, for defendant Garden State Farms, Inc. (Jeffer, Walter, Tierney, DeKorte, Hopkinson & Vogel, Paterson, attorneys).

Douglas C. Borchard, Jr., Paterson, for defendants Board of Commissioners and the Building Inspector of Borough of Hawthorne (Evans, Hand, Allabough & Amoresano, Paterson, attorneys).

Remo M. Croce Trenton, for defendants State of New Jersey, Dept. of Transportation, Div. of Aeronautics (George F. Kugler, Jr., Atty. Gen., attorney).

ROSENBERG, J.S.C.

This proceeding originated as a complaint in lieu of prerogative writ. Plaintiffs demanded a restraining order to enjoin the defendants from proceeding with plans to build a helistop, and such other relief as was deemed just and proper under the circumstances.

The question of whether a restraining order should issue to enjoin defendants was decided in favor of defendants on May 10, 1972. This decision was followed by an agreement by the parties for final determination of all issues in the form of cross-motions for summary judgment.

Defendant Garden State Farms, Inc. is the owner of premises located in the northeast section of the Borough of Hawthorne at and adjacent to the boundary dividing the borough from the Township of Wyckoff, which boundary is also the dividing line between the Counties of Passaic and Bergen. Said property is known as Lot 4 in Block 286 and is part of a large parcel or tract of land principally located in the Township of Wyckoff and County of Bergen, on which the defendant operates an extensive dairy products business.

Defendant owns some 85 or more stores in northern New Jersey which sell milk, dairy products and related products. The source of the supplies for their stores comes from a number of plants located in New Jersey, New York and in Pennsylvania. There is one in Phillipsburg, New Jersey; one in Dimock, Pennsylvania; one in Lemon, Pennsylvania; one in Scranton, Pennsylvania; one in Springville, Pennsylvania; one in Tunkhannock, Pennsylvania; one in Warwick, New York, and another in Poland, New York, so that the supplies that are brought to the main plant in Hawthorne come from various areas.

The products are extremely perishable and are subject to frequent examination and inspect by various state health agencies. This requires the people at the main plant location in Hawthorne to have constant contact with the various mentioned plants. The equipment used at these various plants is extremely sophisticated, mechanized equipment and is subject to frequent breakdown because of the high rate of production for their use. Someone has to make an inspection, someone has to make repairs and someone has to meet a board of health inspector at one of these plants. The method of modern transportation to these various plant areas has to be either by motor vehicle or by a more modern sophisticated method of transportation such as by airplane and helicopter. Of course, Garden State Farms, Inc. is using the helicopter much in the same way that you or I would be using a car. It is to facilitate the operation and management of their business. It is to be used exclusively, according to the briefs, by the personnel of Garden State Farms. It is not for public hire.

The portion of said premises which lies in the Borough of Hawthorne, known as Lot 4 in Block 286, is located at the intersection of Hopper Street and Braen Avenue and is in the I--1 Industrial Zone of the borough, as described in ordinance 1175, and has been for many years in the Industrial Zone as described in ordinance 626, revised and amended by ordinance 1175.

Plaintiffs are all neighboring residents in the general area of Braen Avenue adjacent to or nearby the property of defendant Garden State Farms, Inc. The area north of Braen Avenue and west of Hopper Street is partially within R--2 Residential Zone and R--1 Residential Zone, and the area south of Braen Avenue is partially within the I--1 Industrial Zone and partially within the R--2 Residential Zone.

Defendant Garden State Farms, Inc., apparently intending to construct and maintain a landing pad suitable for use by a helicopter on a portion of Lot 4 in Block 286, submitted a statement of such intention to the board of commissioners of Hawthorne by letter dated October 6, 1971. Upon the advice of defendant Garden State Farms, Inc., and the general understanding of applicable administrative procedures, the commissioners understood and believed that an application to the Department of Transportation, Division of Aeronautics, State of New Jersey, for licensing of such helipad must be accompanied by a statement or certificate of appropriate local officials regarding either the granting of a variance, or in the event no variance is required, a statement of permission. In response to such understanding the board of commissioners did on October 6, 1971, at its regular meeting, adopt a resolution granting such permission. Thereafter, numerous objections were received from neighboring landowners, including plaintiffs, primarily directed to the safety of the proposed operation of the helipad.

The State of New Jersey, Department of Aeronautics, will conduct a public hearing as required by law in conjunction with an application for a helistop, which public hearing will be conducted in the Borough of Hawthorne before issuing the permit for the private helipad. The hearing to be held by the Department of Transportation will concern itself with the safety aspect of the use of the property in question as a private helipad.

To date no application for a building permit for the construction of such facilities has been submitted to the Borough of Hawthorne, and to the knowledge of borough officials no license or permit for the operation of the heliport has been granted by the Department of Transportation, Division of Aeronautics, nor has F.A.A. approval of such facility been granted.

I

The first issue to be determined is whether the State of New Jersey has preempted the field of licensing and regulating private helistops and heliports, and if so, whether the State of New Jersey thereby excludes the ability of a municipality to zone.

Local power to regulate the location of heliports is preempted only when an act of the Legislature, fairly interpreted, is in actual conflict with the ordinance of a municipality. In State v. Pinkos, 117 N.J.Super. 104, 283 A.2d 755 (App.Div.1971), it was held that

In the absence of an intent to totally prempt the field, a municipality, acting pursuant to its delegated powers, can deal with specific local problems by expanding control in that area so long as there is no conflict with the legislative proscription. Fred v. Mayor, etc., Old Tappan, 10 N.J. 515, 521--522, 92 A.2d 473 (1952); Kligman v. Lautman, 98 N.J.Super. 344, 355, 237 A.2d 483 (App.Div.1967), aff'd 53 N.J. 517, 251 A.2d 745 (1969). (at 116, 283 A.2d at 756)

So the question arises as to whether there is an intention on the part of the State of New Jersey to totally preempt the field of regulating the location of heliports. Air transportation is no longer in a stage of adolescence. It serves all segments of our economy and society in general. The State Constitution has recognized the importance of providing facilities to accommodate the public interest in air travel. N.J.Const. (1947), art. IV, § VI, par. 3. The legislative response may 1966, be viewed in a different light.

The Legislature has legislated on the subject: N.J.S.A. 6:1--29, as amended by L.1966, c. 100, § 1, effective June 14, 1966, provides as follows:

Except as otherwise specifically provided by law, the Commissioner of Conservation and Economic Development shall promote progress and education in and shall have supervision over aeronautics within this State, including, but not by way of limitation, the avigation, flight and operation of aircraft, the establishment, location, maintenance, operation, size, design, repair, management and use of airports, landing fields, landing strips, Heliports and helistops, sport parachuting centers, air markings and other avigational facilities, and the establishment, operation, management and equipment of fixed base operators. The Commissioner may adopt and promulgate reasonable rules, regulations and orders regulating air traffic and establishing minimum standards for aircraft, pilots, fixed base operators, airports, landing fields, landing strips, Heliports and helistops, sport parachuting centers, air markings and all avigational facilities within the State and establishing minimum altitudes of flight commensurate with the needs of public safety, the safety of persons operating or using aircraft and the safety of persons and property on the ground, and to develop and promote aeronautics within this State. The Commissioner shall have power to promulgate and adopt any reasonable rules and regulations that may be necessary to effectuate the purposes of this act in the interest of public safety and the development of aeronautics in this State. (Italics provided)

The provisions of N.J.S.A. 6:1--44, as amended by L.1971, c. 118, § 4, effective April 29, 1971, in pertinent part, provides:

The Commissioner shall provide for the licensing of airports * * * or other avigation facilities * * * by rules, regulations and orders adequate to protect the public health and safety and the safety of those participating in aeronautical activities; * * *. (Italics provided)

However, it is not enough that the...