Agenda - Planning Commission - 07/09/2015

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June 10, 2015 ( Volume 9 1 Issue 11 Zoning Bulletin license from the New Jersey Director of the Division of Multimodal Ser- vices, Department of Transportation ("DOT") from 1995 through 1997, and a permanent helistop license from 1998 through 1999. After expira- tion of that license, Pio Costa continued to use the property as a helistop. Eventually, Fairfield brought a civil action against Pio Costa in federal district court relative to the use of the helistop. Pio Costa argued that Fairfield's zoning ordinance was preempted by the Federal Aviation Administration. The district court disagreed with Pio Costa and remanded the matter to state superior court, which prohibited Pio Costa's use of the helistop without a DOT license. Pio Costa applied to the DOT for a permanent helistop license. Pio Costa also applied to Fairfield for a use variance. Fairfield's Board of Adjustment (the "Board") denied Pio Costa's use variance request. In 2012, the DOT issued to Pio Costa a "restricted use" helistop license, and Pio Costa returned to using the Property as a helistop. Fairfield appealed the DOT's decision to issue the license. Fairfield pointed to its zoning prohibition on helipads. It also argued that the helistop was contrary to sound planning and unsafe due to its proximity to an airport, a cellular tower, a car wash, a neighborhood of residential homes and a highway. In response thereto, and after noting the objec- tions of Fairfield, the DOT altered the "restricted use" license issued to Pio Costa to a "special use" license. Fairfield appealed DOT's decision to issue the special use license to Pio Costa. Among other things, Fairfield argued its zoning ordinance barred helistops and the Board's resolution denying Pio Costa's applica- tion for a variance should have effectively precluded the DOT from issu- ing the special use license to Pio Costa. DECISION: Decision of DOT affirmed. The Superior Court of New Jersey, Appellate Division, held that suf- ficient evidence supported the DOT's decision to grant Pio Costa the helistop special use license. In so holding, the court explained that pursuant to the state Aviation Act, the DOT is charged with the "supervision over aeronautics within [New Jersey], including, . . . heliports and helistops . . . [as well as the] develop[ment] and promo[tion] of aeronautics within [New Jersey]." (N.J.S.A. 6:1-29.) Therefore, said the court, the DOT is tasked with "the ultimate authority as to the placement of aeronautical facilities." Thus, although the Aviation Act does not preempt a munici- pality's authority to adopt zoning ordinances pertaining to aeronautical facilities, DOT is vested with final authority to approve and license such facilities. Therefore, "while municipalities may pass ordinances restrict- ing heliports under N.J. S.A. 40:55D-2, 'they must not exercise their zoning authority so as to collide with expressed policy goals of the [Avi- ation Act]. " Still, said the court, although the DOT need not "give con - 8 © 2015 Thomson Reuters