Hanover Tp. v. Town of Morristown

• Decision Date: 10 December 1969
• Citation: 261 A.2d 692,108 N.J.Super. 461
• Parties: , 1 ERC 1103 TOWNSHIP OF HANOVER, a municipal corporation of the State of New Jersey; Township of Morris, a municipal corporation of the State of New Jersey; Borough of Florham Park, a municipal corporation of the State of New Jersey; A. Stewart Dunford; Thomas E. Kenney; Martin B. Monroe; Joseph Elsman; John E. Flaherty; Norman S. Weinberger, Plaintiffs, v. The TOWN OF MORRISTOWN, a municipal corporation of the State of New Jersey,and the morristown Airport Commission, Defendants.
• Court: New Jersey Superior Court

Page 461

108 N.J.Super. 461

261 A.2d 692, 1 ERC 1103

TOWNSHIP OF HANOVER, a municipal corporation of the State of New Jersey; Township of Morris, a municipal corporation of the State of New Jersey; Borough of Florham Park, a municipal corporation of the State of New Jersey; A. Stewart Dunford; Thomas E. Kenney; Martin B. Monroe; Joseph Elsman John E. Flaherty; Norman S. Weinberger, Plaintiffs, v. The TOWN OF MORRISTOWN, a municipal corporation of the State of New Jersey,and the morristown Airport Commission, Defendants.

Superior Court of New Jersey, Chancery Division.

Dec. 10, 1969.

Harry L. Sears, Young & Sears, Boonton, for Twp. of Hanover, Borough of Florham Park, A. Stewart Dunford, Thomas E. Kenney, Martin B. Monroe, Joseph Elsman, John E. Flaherty and Norman S. Weinberger.

John D. Mills, Mills, Doyle & Muir, Morristown, for Twp. of Morris and Borough of Madison.

Crummy, Gibbons & O'Neill, Newark, for Newark Air Services, amicus curiae.

Edward F. Broderick, Jr., Morristown, for defendants.

STAMLER (JOSEPH H.), J.S.C.

(For publication purposes, the following statement of facts is an abstracted version of those set forth at length in the Court's original Opinion in this case.)

This is an action in which plaintiffs seek a permanent injunction forbidding certain planned physical alterations and extensions of facilities at Morristown Municipal Airport or, in the alternative, a direction of the court curtailing use and operation of the airport.

Plaintiffs are four municipalities, Township of Hanover, Borough of Florham Park, Township of Morris and Borough of Madison, and six individuals who either reside or are employed in one or another of the plaintiff municipalities. Defendants are the Town of Morristown and the Morristown Airport Commission.

The Town of Morristown owns the Morristown Municipal Airport, consisting of approximately 595 acres of land situated in the Township of Hanover. Control and operation of the Airport is vested in the Morristown Airport Commission, a commission created by the ordinance of the Town of Morristown in 1949. The Borough of Florham Park abuts to the south and east; the Township of Morris to the west. Located to the south of the Airport and Florham Park is the Borough of Madison.

Morristown Airport was constructed just prior to the beginning of World War II. Subsequent to the war's end, use of the airport's facilities increased with each passing year. Not only did more planes use the airport, but also aircraft engines became more powerful and increasingly noisy.

Municipalities in Morris County, including plaintiff municipalities immediately adjoining the Airport, experienced rapid growth in residential areas, industrial development and transit systems on the ground and in the air. The Township of Hanover adopted a Master Plan in 1963 which acknowledged that additional improvements and plans for expansion at Morristown Airport were anticipated. Florham Park adopted a General Development Plan in 1960 which made no specific reference to Morristown Airport from a planning or zoning standpoint. Morris Township has no Master Plan. No evidence as to any master or zoning plan as to Madison was introduced at the trial.

As an incident to the increased activity at Morristown Airport, a navigational aid for locating the Airport in incelement weather was installed in the 1950's. This system, known as automatic direction finding (A.D.F.), utilizes a radio beacon as a homing device described by today's experts as a 'Mickey Mouse' affair. The transmitter, which is situated in Chatham Township, is still in use today. When utilized as a homing signal for Morristown Airport on days of low visibility or at night, planes homing on the device arrive over the beacon transmitter and then proceed on a specified compass course in the direction of the Airport until safe landing instructions are directed by the control tower. This course takes the aircraft almost directly over what is now Farleigh Dickinson University (Madison campus) and a little to the east of the College of St. Elizabeth. In addition, the Chatham beacon is also used by scheduled airlines as a navigational localizing fix and holding point for approaches to or departures from Newark Airport.

Morristown Airport still has today the two original runways laid out in 1940, each 4,000 feet in length. One, designated '5--23', runs in a northeast--southwest direction; the other, designated '12--30', runs northwest to southeast. In the late 1950's, the Airport Commission and the Town of Morristown determined that additional improvements, as recommended by the Federal Government's National Airport Plan, were needed. A Master Plan and General Layout Plan were prepared in April 1960, and were submitted to the Federal Aviation Agency (hereinafter, F.A.A.) in June 1960. The plan in one phase specifically called for the lengthening of runway 5--23. General information as to the plans for improvements at Morristown Airport came to the attention of the officials of the neighboring communities, as well as to officials in County, State and Federal Government. Additional improvements planned consisted of a new control tower, new aircraft taxiways, new lighting improvements, and installation of an instrument landing system (I.L.S.).

In April 1967 Morristown, with the approval of the New Jersey Bureau of Aeronautics, submitted a request to the Federal Government for financial assistance by way of grant to complete the 1960 Master Airport Plan. The F.A.A. took favorable action in the form of two projects which were thereafter combined into one, with an estimated total cost of $2,734,480.

Many governmental agencies were actively engaged in considering the proposed plans. The geographic location, the nature of the services performed and to be performed in the future and the types of aircraft were among the many factors reviewed by F.A.A., Tri-State Transportation Commission, New Jersey Bureau of Aeronautics, Morris County Aviation Commission and the Morris County Planning Board. The New Jersey Departments of Transportation and Community Affairs were informed of the proposed improvements. Informal conferences were held with various officials of Hanover Township, East Hanover, Florham Park and Morristown. This was done to keep the neighboring communities abreast of what was intended to be accomplished. Final plans and specifications were submitted to F.A.A. in September 1968.

Objections to the proposed improvements raised by plaintiffs in the instant action and by other local citizens resulted in a meeting before the F.A.A. in December 1968. Subsequently, a public hearing was held at F.A.A. offices in Newark, New Jersey on March 1, 1969, in compliance with 49 U.S.C.A. § 1108(d) (3). The hearing examiner concluded that in furtherance of the National Airport Plan, the needs of Morristown Airport required the improvements and that no substantial harm would come to any of the surrounding communities or their residents. The examiner also found that the anticipated noise after improvements would not reach levels that would affect the health and comfort of ordinary people living or working in the vicinity of the Airport.

A contract was entered into under which the Federal Government agreed to contribute one-half of the $2,700,000 for the implementation of the plan. Defendants thereafter advertised for bids for construction of the improvements. On July 14, 1969 bids were received and reserved for study by the governing body of Morristown. At or about the same time the Airport Commission and the Town entered into a lease with Newark Air Service (NAS) which under its terms permitted NAS to use a part of Airport property for maintenance and service of aircraft.

The present suit was then instituted. An order to show cause issued requiring the defendants to show cause on September 12, 1969 why an injunction should not be granted pending final hearing in the matter. With consent of all parties, the court granted a limited injunction. On the return day, recognizing the public interest and the necessity for an early determination, the court fixed September 18, 1969 for pretrial conference and October 14, 1969 as the trial date. On September 18, at the pretrial conference, a motion was made by defendants to modify the interlocutory injunction theretofore entered, and with the consent of plaintiffs the injunction was modified. The matter came on for trial on October 14, 1969. NAS sought and was granted leave to file a brief Amicus.

The evidence adduced at trial comprises a vast number of complex documentary exhibits and testimony of lay and expert witnesses. The lay witnesses included twenty-two citizens, whose residences or places of employment were located in close proximity to the Airport and its operations. Generally their complaints were apprehension of crash and intolerable noise.

In the context of this case and unscientifically, noise may be described as unwanted sound. It can hardly be described as a new evil lately come upon us. Many, many years ago citizens complained of the pounding on the anvil by the blacksmith, the irritable rasp of the grindstone upon which swords and scissors were sharpened, the carpenter's hammering home the crudely forged nail, or the clatter of the iron-shod hooves of horses on the cobblestone streets of the city. In about 1750, in what we today might think of as the tranquil colonial city of Philadelphia, Benjamin Franklin determined that he must move to Second and Sassafras Streets from High Street because 'the din of the Market increases upon me; and that, with frequent interruptions, has, I find, made me say some things twice over.' However, looking forward to the blessings of civilization, one of which is purportedly progress, the citizen grudgingly accepted the fact that some noise must be tolerated.

In the past, noise for the most part was concentrated in the cities; man began to leave for the suburbs...