Agenda - Planning Commission - 12/03/2009

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September 25,20091 Volume 31 No. 18 Zoning Bulletin of aeronautical facilities. The ASZA and its implementing regulations (N.j.S.A. 6:1-85; N.j.A.C. 16:62-1.1 to -11.1) required each munici- pality to recognize an airport as a permitted land use and to incorpo- rate the standards of the Aviation Act into its local ordinances. The Aviation Act was "comprehensive and preemptive." The ASZA clear- ly intended state policies concerning airport operations and develop- ment should prevail over local concerns. However, the court conclud- ed that neither totally preempted municipal land use controls within an airport safety zone. This was because they required the Commis- sioner of Transportation to consider local zoning ordinances when acting on applications to alter an airport facility. The court concluded that: state law preempted local land use au- thority over the location or expansion of airport facilities only when "the local regulation conflicts with state statutes or stands as an ob- stacle to a state policy." Otherwise, although not preempted by state law, a.municipality's ability to regulate land use within an airport safety zone is "narrowly circ.umscribed" because: (1) "it must con- form with the requirements imposed by the [state] regulations;" and (2) "the Commissioner of Transportation has the ultimate authority to override any local zoning decision if it is contrary to the purposes of the ASZA or the Aviation Act." r.. .).... Accordingly, the court concluded that the township's authority to \ exercise zoning control over Solberg's Property was "therefore con- strained by State law." "Acquiring development rights to the airport or .., ownership of the [P]roperty within the safety zone would pro- vide the township with greater control over airport operations than it would have through normal application of the zoning law." See also: Garden State' Farms, Inc. v. Bay, 77 N.J. 439, 390 A.2d 1177 (1978). See also: Anfuso v. Seeley, 243 N.].Super. 349, 579 A.2d 817 (App. Div. 1990). Case Note: The court ultimately reversed and remanded the lower court's issuance of summary judgment for the township. The court concluded that fact issues existed (thus precluding summary judg- ment) as to whether: (1) the township's stated purposes for the condemnations were pretext for the improper purpose of securing control over airport growth and expansion; and (2) condemnation was arbitrary so as to require the township to prove that condem- nation of property serving a prior public purpose was reasonable \~) and necessary. 6 @ 2009 Thomson Reuters 76 I