Agenda - Planning Commission - 12/03/2009

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(D .1 I I I I i I II '?1~. . " , \\ ~ '-,~ ((J! Zoning Bulletin September 25,20091 Volume 31 No. 18 In July 2006, the township adopted an ordinance (the "Ordinance"), authorizing acquisition through condenmation (i.e., by eminent ~ do- main) of the portion of Solberg's Property lying outside of the l02-acre airport facilities area. The Ordinance also authorized the township to acquire, through condenmation, development rights to the airport fa- cilities area itself. The township filed in court a condenmation complaint. The com- plaint asked the court to declare that the township had "duly exer- cised its authority to acquire [Solberg's] property by eminent domain and an order appointing commissioners to fix the compensation re- quired to be paid for the taking of the property. " . Solberg challenged the taking. Among other things, it argued that the township did not have authority to condenm the airport property. It maintained this was because the township's land use authority with re- gard to location. or expansion of airport facilities was preempted by fed- erallaw-specIDcally the Federal Aviation Au~oriiation Act of 1994 ("FAAA") and related federal regulations-and state law-specifically New Jersey's Aviation Act of 1938 ("Aviation' Act") and Air Safety and Zoning Act ("ASZA"). Among other things, Solberg argued that the township "misused condenmation to subvert the purposes of the ASZA and to retain control over the use of airport property." Finding there were no material issues of fact in dispute and decid- ing the matter on the law alone, the court issued summary judgment in favor of the township. Solberg appealed. ~ DECISION: Reversed in part, vacated in part, and remanded. The Superior Court of New Jersey, Appellate Division, held that: (1) federal law did not preempt the township's land use authority with regard to the location or expansion of airport facilities; and (2) state law "did not eritirely preempt" but did "narrowly circumscribe" the township's ability to regulate land use within an airport safety zone. The court explained that, under the FAAA, the Federal Aviation Administration (the "FAA") has "exclusive sovereignty over the use of the nation's' navigable airspace." (49 U.S.C.A. S 40103(b)(1). However, while the FAA "has exclusive control of flight routes and schedules, decisions otherwise concerning the location and operation of airports have generally been left to the discretion of local govern- ments." The court found it clear that FAA regulations did not pre- empt the township's land use authority over the location or expan- sion of airport facilities. As to the issue of state law preemption, the court explained that the Aviation Act (N.J.S.A. 6:1-20 to -40) gave New Jersey's Commis- sioner of Transportation the ultimate authority as to the placement @ 2009 Thomson Reuters 5 75