Township of Readington v. Solberg Aviation
Cite as: 409 N.J. Super. 282


TOWNSHIP OF READINGTON, a municipal corporation of the State of New Jersey, Plaintiff-Respondent
SOLBERG AVIATION CO., a New Jersey partnership, Defendant-Appellant



Docket No. A-3083-07T3, A-1537-08T3

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-468-06

Argued April 27, 2009
Decided August 19, 2009

Before Judges Carchman, Sabatino and Simonelli


Laurence B. Orloff argued the cause for appellant (Orloff, Lowenbach, Stifelman & Siegel, attorneys; Mr. Orloff, of counsel; Mr. Orloff and Philip E. Mazur, on the brief).

James P. Rhatican argued the cause for respondent (Connell Foley, attorneys; Mr. Rhatican and Kevin J. Coakley, of counsel; Mr. Rhatican and Joseph M. Murphy, on the brief).

The opinion of the court was delivered by


This appeal challenging a condemnation judgment granting, among other things, title and possession of a portion of defendant Solberg Aviation Co.'s ("defendant" or "Solberg") property to plaintiff Township of Readington ("plaintiff" or "the Township"), raises two critical issues of law. The first is the preemptive effect of state aviation statutes, specifically the Air Safety and Zoning Act (ASZA) N.J.S.A. 6:1-80 to -89, and the State Aviation Act, N.J.S.A. 6:1-20 to -44, and regulations on land use authority. The second is the application of the principles enunciated in Mount Laurel Twp. v. MiPro Homes, L.L.C., 379 N.J. Super. 358 (App. Div. 2005), aff'd, 188 N.J. 531 (2006), cert. denied, ___ U.S. ___, 128 S. Ct. 46, 169 L. Ed. 2d 242 (2007). Defendant claims the taking was pretextual in an attempt to limit the use of airport property. As to this claim, we conclude that defendant presented a sufficient factual basis to overcome a motion for summary judgment; we further conclude that state statutes preempt certain aspects of local land use, constraining a municipality's exercise of its condemnation authority, Garden State Farms, Inc. v. Bay, 77 N.J. 439, 449 (1978). In a consolidated appeal, we further conclude that under the Eminent Domain Act of 1971 (EDA), N.J.S.A. 20:3-1 to -50, title passed to the Township upon the filing of the Declaration of Taking, and the Township improperly assessed taxes against defendant.



We provide an expansive discussion of both the factual and procedural history of this dispute. Solberg is the owner in fee simple of approximately 726 acres of land in the Township of Readington, Hunterdon County. The property, which is comprised of four contiguous tracts separated by public roads, contains a small airport, farmland, open fields, woodlands, wetlands and stream corridors. Approximately ninety-two percent of the property is farmland assessed. The airport facilities occupy between seventy and 102 acres. [FN 1]

[FN 1] The size given for the airport facilities varies throughout the record. The Township ordinance sets it at 102 acres; the Township's statement of undisputed material facts sets it at seventy acres; an evaluation report prepared for the Township by a professional planning firm sets it at eighty-seven acres; and a site assessment report prepared by an environmental firm sets it at 100 acres.
Solberg-Hunterdon Airport (SHA) is a general aviation facility that serves business and recreational users. In 1990, the Federal Aviation Administration (FAA) and the New Jersey Department of Transportation, Division of Aeronautics (NJDOT) designated SHA as a "reliever airport" because of its potential to reduce congestion at Newark Liberty International Airport. In 2000, the National Air Transportation Association named SHA as one of "America's 100 Most Needed Airports."

SHA has one 3,735-foot runway, of which only the first 3,000 feet are paved. It also has several unpaved runways and taxiways, a two-story terminal building, two hangars, numerous airplane parking spaces, a paved automobile parking lot, underground fuel tanks, and a VORTAC [FN 2] navigational aid. Aircrafts that operate at SHA include single and light twin engine piston, turboprop and jet aircraft, gliders, and helicopters. The airport is well known for hosting the Annual New Jersey Hot Air Balloon Festival.

[FN 2] Very High Frequency Omni-Directional Radio Range Tactical Aircraft Control
On July 11, 2006, the Township Committee adopted Ordinance 25-2006, authorizing acquisition of defendants' property. The ordinance provided that
the Township has determined that the public interest will be served by acquisition of the entirety of the Property for public use and purposes, including, without limitation, open space and farmland preservation; land for recreational uses, conservation of natural resources, wetlands protection, water quality protection, preservation of critical wildlife habitat, historic preservation, airport preservation, and preservation of community character. . . .
The ordinance authorized the Township to acquire, through condemnation, a fee simple title to the portion of defendants' property lying outside of the 102-acre airport facilities area. It further authorized the Township to acquire, through condemnation, development rights to the airport facilities area itself. Ordinance 25-2006 reflected the end result of a lengthy and often contentious relationship between the airport and the Township.

In 1939, Thor Solberg, Sr., opened SHA. On February 3, 1941, the Township Committee passed a resolution granting permission for the operation of a commercial airport on the property. Tensions soon arose, however, between the airport and local residents.

In 1967, Governor Richard J. Hughes announced plans to recommend SHA as the site for a fourth metropolitan jetport. In response "[P]olitical, business and community leaders . . . gather[ed] forces . . . to battle the jetport. . . ." As a result of public pressure, plans to expand the airport to accommodate jets were abandoned.

In 1983, the New Jersey Legislature enacted the ASZA, which authorized the Commissioner of Transportation to adopt rules and regulations to specify permitted and prohibited land uses within airport safety zones. N.J.S.A. 6:1-85 required each municipality that contained any part of an airport safety zone to enact an ordinance incorporating the standards promulgated by the Commissioner. The Township strongly opposed the ASZA, believing that it removed decisions concerning airport expansion from the hands of local officials. It twice petitioned NJDOT for an exemption from the requirements of the ASZA, but its requests were denied. Despite its legal obligation to do so, and repeated prodding from NJDOT, it failed to pass an ordinance that conformed with N.J.S.A. 6:1-85. Rather, it pursued lobbying efforts to have the ASZA repealed and legal efforts to have the ASZA declared unconstitutional. When amendments to the ASZA were proposed in 2000, the Township Committee and numerous local residents submitted petitions asking Governor Christine Todd Whitman to veto the bills.

In the late 1980s, it appeared that Linden Airport might close. A feasibility study prepared by a committee consisting of representatives of the FAA, NJDOT and local officials identified SHA as a potential replacement site. The Mayor of Readington wrote a series of letters that expressed his strong objections to the position taken by the FAA. Despite the Township's opposition, the Solbergs wrote to the Mayor of Linden on May 30, 1990, confirming their willingness to accept the transfer of aircrafts from Linden Airport. Newspaper articles published at this time reported comments from the Mayor concerning the Township's "fallback option" of condemning the Solberg property.

During an August 1990 meeting between Township officials Ron Monaco and Steve Mirota, Township attorney William Savo, and Thor Solberg, the following recorded exchange took place:

         [Solberg]: [Y]ou're taking away my

          [Monaco]: No, we're not.

          [Mirota]: Not necessarily.

         [Solberg]: You know that's what -- you want
                    to take the land.

          [Monaco]: We haven't done that yet.

         [Solberg]: It's our land.

            [Savo]: Let me tell you what our options
                    are. We could go down ther[e]
                    tomorrow, right? And [take]
                    just enough to put the airport
                    out of business. I wouldn't say
Although the plan to close Linden Airport ultimately fell through, tensions between the Solbergs and the Township persisted throughout the 1990s. In September 1990, the Solbergs requested funding from the FAA for expansion. Shortly thereafter, the main airport runway was extended from 1,800 feet to 3,000 feet. In 1995, the Township Board of Education decided to site a new elementary school immediately adjacent to the airport. This decision drew sharp criticism from NJDOT, which warned that it would not be prudent to locate a school there. Between 1996 and 1999, the Township committee adopted at least five resolutions opposing any increase in SHA's runway length. Members of the Township Committee encouraged local residents to sign petitions and write legislators in opposition to airport expansion.

In 1997, Solberg released a Final Draft Master Plan and an Airport Layout Plan that provided detailed recommendations for airport development, estimated construction costs, and set forth a schedule of improvements over a twenty-year planning period. Among the recommended projects were a new 4,890-foot-long replacement runway, a full parallel taxiway, paving and extension of a crosswind runway, parking facility improvement, additional hangars, an automated weather observation station, a precision instrument approach and an approach lighting system. In response, the Township Committee submitted a lengthy letter to the FAA, NJDOT and numerous government officials "to formally and strenuously object" to the Master Plan.

In March 1999, the FAA and NJDOT gave conditional approval to the Airport Layout Plan, pending the successful completion of an environmental assessment. In April 1999, the Mayor wrote to NJDOT to protest this decision and stated that the Township would "do everything in [its] power to maintain the status quo of [SHA]." At a Township Committee meeting in June 1999, the Deputy Mayor stated that it was "time to draw the line in the sand" and "do whatever it takes right now legally to make sure that [SHA] never becomes a jetport . . . ."

On February 1, 2001, Princeton Hydro, LLC, provided the Township with a "Soleburg [sic] Airport Environmental Assessment Scoping Report," which reviewed SHA's 1997 Master Plan and explained the specific areas that should be addressed by NJDOT's environmental assessment. This report formed the basis of a lengthy submission by the Township to NJDOT on February 9, 2001, that stated the Township's concerns over airport expansion.

In October 2002, NJDOT released a preliminary "Draft Environmental Assessment for Solberg-Hunterdon Airport" (EA). The options studied in the EA were substantially scaled back from the recommendations set forth in the airport's 1997 Master Plan. The EA discussed three possible alternatives to SHA's proposals: (1) the "no-build alternative," where the airfield would retain its current configuration and only rehabilitation of the existing facilities would be allowed; (2) the "modified no-build alternative," which would allow minimum improvements to the facilities without lengthening any of the airport runways; and (3) the "runway improvement alternative," where a 3,735-foot-long replacement runway would be constructed on another portion of the airfield and the current runway would be converted into a parallel taxiway. The EA noted that the no-build alternative was inadequate from the perspective of the FAA and NJDOT because the existing runway configuration did not meet FAA airport design standards. After discussing the environmental consequences of expansion, the EA summarized the potential impacts of the three alternatives. It concluded that the no-build alternative would have no environmental impacts, the modified no-build alternative would have minimal or indirect impacts and the runway improvement alternative would have slightly more impacts than the modified no-build alternative.

While NJDOT's environmental assessment process was underway, the Township commissioned a study of the threatened and endangered species of grassland birds at SHA, an environmental inventory report on the Solberg property, and an evaluation of the Solberg property for municipal acquisition. On July 9, 2001, the Township amended its 1990 Master Plan to include "policies relating to critical habitat and the Solberg-Hunterdon Airport . . . ." The amendment "recommended that the most effective way to preserve and manage the unique environmental resources and open space on these [the Solberg] tracts be through acquisition by the Township." Notably, the 2001 amendment represented the first time that the Solberg property was specifically identified by the Township as environmentally valuable. The 1990 Master Plan did not list the Solberg property as a "critical environmental impact area." Likewise, the Readington Township Open Space Inventory and Recommendations for Preservation, dated October 23, 1995, failed to identify the Solberg property for future acquisition. The Solberg tract was not included in the list of Greenways properties set forth in the June 2001, Report of the Readington Township Open Space Committee. Although the Readington Township Environmental Resource Inventory, dated April 20, 2001, noted that NJDEP named SHA as a "Natural Heritage Priority Site," it did not identify the airport as being environmentally vulnerable, nor did it recommend its acquisition.

On April 11, 2002, Solberg entered into an agreement with NJDOT for the sale of SHA. The agreement set a base purchase price of $22,000,000, subject to negotiation, and contingent upon obtaining a financing commitment from the FAA. In May 2002, the Township wrote to the Governor's Office to protest the pending sale. It also held several meetings with NJDOT to obtain assurances that the State had no plans to expand the airport facilities, and it received such assurances in a letter from the Commissioner, dated October 29, 2002. The purchase agreement between NJDOT and the Solbergs eventually fell through, however, because the parties could not agree on a final purchase price.

On July 14, 2005, the Township received an appraisal report that estimated the value of the Solberg property at $15,219,700. On August 5, 2005, the Mayor sent a letter of general circulation to Township residents stating that the Township would assume the lead in efforts to acquire and preserve the airport. On September 1, 2005, the Township received a final rport prepared by GRA, Inc. on the benefits of municipal ownership of the airport.

A public meeting of the Township Committee was held on January 17, 2006, to discuss the future of SHA. Mayor Gerard Shamey discussed the negotiations that had taken place between the Township and the Solbergs since August 2005, and stated that they had come to an impasse because Solberg "remains committed to lengthening the runways, widening the runways, increasing the thickness of the runways with a view towards attracting a corporate jet business environment and facility." Mayor Shamey went on to say that "[t]he most important thing to me and to this Committee, and I think all of us on the Committee, is to retain decision-making power over development of the site here in Readington." The Committee then heard a series of presentations from environmental, planning, aviation and acoustical experts who addressed the ecology of the airport site, noise pollution and technical aspects of airport operations. On January 27, 2006, the Mayor sent a letter to Township residents that summarized the presentations of January 17, and stated that the Township Committee was committed to limiting the size of the airport runway to 3,735 feet.

At a public meeting on February 6, 2006, the Committee rejected a suggestion from Suzanne Solberg Nagle that the matter be submitted to a professional mediator and introduced a $22 million bond ordinance to raise funds to acquire the airport property. In a letter to Township residents dated February 14, 2006, the Mayor stated:

Whatever solution is reached, it must preserve the Township's voice in what happens to the character of our community. Recent legal precedents in Florida and elsewhere make clear that once an airport reaches a certain scale, local residents, and in some cases even the airport owners, may have little say in what type of aircraft can use the facility.
At a public hearing on February 21, 2006, the Committee voted unanimously to approve a $22 million bond ordinance. In a February 27, 2006, letter to Township residents, the Mayor stated that the Committee would not submit the matter to a mediator because the question of expanding the runway is not a "split the difference issue." He emphasized that the Township would "not accept any compromise that would expand the runway to more than its current permitted length."

A referendum on the bond ordinance was the subject of a special municipal election on May 16, 2006. Prior to the election, the Township distributed informational materials, including a document titled "Frequently Asked Questions" (FAQ). The FAQ stated that the "Township's goal is to preserve the airport as a small recreational airport, and to protect 625 acres around the airport as open space." The FAQ explained that the Township would not manage the airport, but it "would own the rights to determine future development on airport lands." Local newspapers published editorials by Township officials that urged residents to vote in favor of the bond ordinance in order to stop the airport from becoming a jetport. The referendum passed with an affirmative vote of 55.6%. At the June 28, 2006 Township Committee meeting, the ordinance authorizing acquisition of the airport property was introduced, and as mentioned previously, this ordinance was adopted on July 11, 2006.

On July 17, 2006, the Committee authorized the execution of loan agreements with the New Jersey Environmental Infrastructure Trust (NJEIT) and the New Jersey Department of Environmental Protection (NJDEP) for purchase of the airport property, which was approved on September 12, 2006. The Township's condemnation complaint was filed immediately thereafter.

The complaint was filed against Solberg and others [3] demanding a declaration that the Township had duly exercised its authority to acquire defendants' property by eminent domain and an order appointing commissioners to fix the compensation required to be paid for the taking of the property. The complaint also sought a declaration that the property's owner is legally responsible for all reasonable and necessary environmental clean-up costs that may arise from remediation of the site and asked the court to withhold disbursement of monies deposited pending adjudication of the environmental issues.

[FN 3] Others claiming an interest would share in any proceeds of the condemnation but were not interested in the issues raised by this appeal.
On September 22, 2006, the motion judge signed an order to show cause, directing defendants to file answers or motions within ten days. The judge also ordered that the sum of $21,378,000, which was the Township's estimate of the fair market value of the property, be paid into the court's trust fund unit upon the filing of a declaration of taking. On October 4, 2006, the Township filed a Declaration of Taking and deposited the monies with the Clerk of the Superior Court.

Defendants moved for an order staying the eminent domain proceeding, vacating the order of September 22, 2006, and enjoining the Township from enforcing its declaration of taking, as well as thereafter filing an answer disputing the allegations in the verified complaint and raising numerous affirmative defenses. The answer also asserted a counterclaim against the Township and a third-party complaint against several Township officials that alleged official misconduct, a violation of 42 U.S.C. 1983, and breach of fiduciary duty and sought relief in lieu of mandamus.

Also on October 20, 2006, Kevin J. Devine and Taxpayers Alliance of Readington filed a notice of motion to intervene in order to request that the court's September 22, 2006, order for payment into court be vacated. [FN 4]

[FN 4] Devine and Taxpayers Alliance of Readington had previously filed a complaint in lieu of prerogative writs that challenged the bond ordinance and referendum providing for the acquisition of defendants' property.
The judge ordered additional discovery and ultimately, she stayed the condemnation complaint and the declaration of taking, allowed the monies deposited by the Township to remain with the court, ordered the Township to immediately vacate the property, ordered defendants not to make any improvements or convey the property, denied Devine's motion to intervene and appointed two special discovery masters to oversee the pretrial proceedings.

Defendants filed a motion for summary judgment, seeking an order declaring that the Township was without authority to condemn the airport property. The Township also filed a motion for summary judgment, seeking an order entering final judgment on its claims and appointing commissioners for the determination of just compensation.

During the course of the litigation, the parties produced numerous reports and certifications from experts in the fields of aviation, valuation, planning, and the environment.

Princeton Hydro, an environmental expert for the Township, described defendants' property and opined that the site's natural resources would be detrimentally impacted by further airport development. Professional Planner Michael F. Sullivan reviewed the characteristics of the Solberg property and concluded that municipal acquisition would result in "multiple and interrelated public benefits" such as preservation of open space, farmland, critical habitat, and community character, and the provision of recreational resources.

Conway Consulting, an airports and aviation consultant, opined that forecasts of future aviation activity in the SHA Master Plan were overly optimistic and that the airport was in poor physical condition. Richard Golaszewski, a transportation economics expert, noted that "small general aviation airports do not usually generate large profits" and observed that defendants might seek a greater return by selling the property for non- airport uses. Golaszewski opined that SHA could not continue to operate on a long-term basis in its current condition and that money from the taking would provide defendants with the monetary resources to upgrade the airport facilities.

Defendants' experts refuted these opinions. A report prepared by Amy S. Greene Environmental Consultants (ASGEC) stated that the natural characteristics of the Solberg property were virtually identical to those of the Township as a whole and that, in fact, the Solbergs had done a better job of conserving agricultural land use than had the Township. In a second report, ASGEC opined that

[t]he grassland bird population at Solberg Airport is not in imminent danger of being eradicated by airport operations. It is the normal and regular general maintenance activities associated with airport operations that provides the existing habitat that lead to the 'National Heritage Priority Site' designation in the first place.
Professional Planner George A. Ritter echoed ASGEC's opinion, stating that the Solberg property "is of the same general character as Readington Township as a whole with regard to the occurrences of wetland, forest, surface waters, floodplains and other natural features . . . . Further, critical grassland habitat area found on the Solberg Property can be found in abundance in many areas of Readington Township." In a certification, Ritter stated that the amount of open space and preserved farmland in the Township "so greatly exceeds all of the accepted standards for public open space as well as developed recreation land [that] any further acquisition of lands for this purpose cannot be justified as meeting a public need for such facilities but must be for some other purpose."

With regard to the importance and continued viability of SHA, aviation expert Allan R. A'Hara wrote that the facility "serves a vital role as a general aviation reliever airport" and that the taking as proposed "would place substantial limitations on the airport's ability to adequately operate as it does today" and would leave insufficient property to adhere to current FAA guidelines. Another expert, Airport & Aviation Appraisals, concluded that if SHA were reduced to 100 acres and confined to a 3,735-foot runway, it would be unable to make a profit in the current aviation marketplace. Finally, Arlene Feldman, who has served as an FAA Regional Administrator and as New Jersey Director of Aviation, prepared a report and certification asserting that SHA is of "incredible importance to New Jersey and its economy . . . ." Feldman stated that SHA not only contributes to safe airport operations by reducing congestion at other aviation facilities, it also serves as a base from which state and federal authorities can render efficient emergency response and rescue services.

Julia Allen, a long-time member of the Township Committee, prepared a certification in support of the Township's motion for summary judgment. Allen set forth a detailed history of the Township's efforts to preserve open space and farmland dating back to 1978, and explained that the Township had been interested in acquiring the Solberg property for preservation purposes since at least 1999. She described the negotiations between the Solbergs and the Township, which she claimed were unilaterally terminated by the Solbergs in 2006. Allen stated that the purposes set forth in Ordinance 25-2006, "including the preservation of open space, are not pretexts for any other purpose of the Township Committee to be accomplished by the acquisition of the Property." Allen did not discuss concerns over airport expansion, nor did she cite the ability to control the use of the airport property as a purpose for which the Township decided to acquire defendants' property.

The judge granted the Township's motion for summary judgment and found that defendants had not met their high burden of demonstrating that the Township's motives rose to the level of bad faith. She concluded: "In light of the Township's established and recognized land use authority over the airport, it is the opinion of this Court that the Township of Readington is entitled as a matter of law to condemn the Subject Property, Solberg Airport and the surrounding property, as it proposes."

The judge signed an order giving full force and effect to the Declaration of Taking, vesting the Township with the right to immediate exclusive possession of the property, and appointing commissioners to fix the compensation to be paid to defendants. The order also severed all counterclaims and third- party claims against the municipal third-party defendants. Solberg filed a notice of appeal and the judge stayed the orders for final judgment, stayed the Township's Declaration of Taking, monies previously deposited by the Township remained with the court, the Township was directed to vacate the land owned by defendants and defendants were barred from making improvements, conveyances or encumbrances without the Township's approval. The judge also stayed, pending further order of the court, the provision in the final judgment that severed the counterclaims and third-party claims.


Before addressing the merits of defendants claims on appeal, we must consider first our general standard of review, then unique considerations necessary to a trial court analysis of this multi-parcel condemnation and finally, appropriate considerations regarding plaintiff's authority to condemn.

We first review the standard of review for motions for summary judgment. Summary judgment is appropriate when "there is no genuine issue as to any material fact challenged and . . . the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2. "The 'judge's function is not himself or herself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 212 (1986)). When deciding if a genuine issue exists, the court must consider whether the competent evidence, viewed in the light most favorable to the non-moving party, is sufficient to permit a rational fact-finder to resolve the disputed issue in favor of the non-moving party. Id. at 523. In determining whether a grant or denial of summary judgment was correct, we engage in de novo review and apply the same legal standard as the trial court. Dugan Const. Co., Inc. v. N.J. Turnpike Auth., 398 N.J. Super. 229, 238 (App. Div.), certif. denied, 196 N.J. 346 (2008); Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989). In so doing, the trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference. Manalapan Realty L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Our review of this particular appeal implicates other unique considerations. A critical consideration that must be addressed is the presence of numerous parcels of land involved in this matter and a consideration of why the type of condemnation proposed (fee simple/development rights) was appropriate for each specific parcel. N.J.S.A. 20:3-7(b)allows the condemnation of ten or less parcels of property lying wholly within the same county to be joined in one action, "provided that a separate award, judgment and appeal shall be made, entered and taken with respect to each parcel." See Union County Improvement Auth. v. Artaki, L.L.C., 392 N.J. Super. 141, 148-56 (App. Div. 2007) (discussing the requirements of N.J.S.A. 20:3-7(b) and R. 4:73-6).

The EDA does not define the term "parcel." A review of cases such as Union County Improvement Auth. suggests that for purposes of a condemnation action, a "parcel" is a property identifiable by a specific block and lot number. See, e.g. 392 N.J. Super. at 144 (each lot number separately addressed in the complaint); 4A New Jersey Practice, Civil Practice Forms 86.35, at 633 (James H. Walzer) (6th ed. 2006) (sample "Notice to tax collector" of condemnation action requires entry of individual block and lot number). The EDA requires that each lot joined in the condemnation action be addressed with specificity in the court's judgment.

Applying these latter principles, we identify a critical issue requiring further attention. Here, defendants' property consists of 726 acres, which comprise seven lots on the official tax map. These lots are divided among four distinct tracts, separated by public roads. The court made no findings as to which lots host the 102-acre airport facility, which lots fall within NJDOT's airport safety zone, which lots may be impacted by future improvements as contemplated by NJDOT's EA, and which lots consist of open fields or farms that are unaffected by airport operations. Ultimately such findings must be made. See, e.g., City of New Haven v. Town of East Haven, 402 A.2d 345 (Conn. App. Ct. 1977), aff'd, 419 A.2d 349 (Conn. 1979) (involving an action to condemn seventy-two acres of land that were part of airport property owned by New Haven. Although the subject tract had unity of ownership and use, the court nevertheless broke it down into three parcels and characterized each parcel according to its function vis--vis the airport (i.e., clear zone, transition zone, unutilized)).

The absence of discrete findings tied to specific parcels, or portions thereof, hampers the resolution of this dispute, and our own appellate review. The legal analysis of the Township's authority to condemn the development rights on the lots or portions of lots comprising the airport itself differs from the analysis applied to the Township's authority to condemn fee simple rights to undeveloped property outside of the airport's zone of operations. These are issues that must be resolved with greater clarity.

We now consider the scope of the Township's zoning authority with specific regard to the airport's development and operations.

Solberg Aviation argues that the court erred in concluding that the Township has "established and recognized land use authority over the airport." It contends that the vast bulk of authority to regulate airports resides with the State, as specifically set forth in N.J.S.A. 6:1-29, N.J.S.A. 6:1-85, N.J.A.C. 16:54-2.5, and N.J.A.C. 16:62-2.1. It asserts that the Township misused condemnation to subvert the purposes of the ASZA and to retain control over the use of airport property.

The Township responds that it retains land use control over the airport and the exercise of that control does not usurp state or federal powers. Relying on MiPro, supra, it argues that it is permissible to condemn property for open space regardless of the property's existing use. It further argues that New Jersey law specifically delegates airport planning decisions to municipalities and claims that defendants' argument concerning the ASZA is a "red herring," because the ASZA has no bearing on the Township's right to condemn the airport property.

The inquiry into whether state or federal statutes and regulations preempt local land use control over airports presents a question of law. In granting summary judgment to the Township, the judge relied on "the Township's established and recognized land use authority over the airport."

Within the United States, air commerce and safety are governed by the Federal Aviation Authorization Act of 1994 (FAAA), 49 U.S.C.A. 40101 to 40129. Under the FAAA, the FAA has exclusive sovereignty over the use of the nation's navigable airspace. 49 U.S.C.A. 40103(b)(1); see Abdullah v. American Airlines, Inc., 181 F.3d 363, 367 (3d Cir. 1999) (holding that federal law establishes the applicable standards of care in the field of air safety and thus preempts the entire field from state regulation); Allegheny Airlines, Inc. v. Village of Cedarhurst, 238 F.2d 812, 815-16 (2d Cir. 1956) (holding that the federal regulatory system preempts the field of control of aircraft flight). The responsibility of the FAA, in conjunction with the Environmental Protection Agency, to prescribe regulations that control and abate aircraft noise has also been established and recognized. 49 U.S.C.A. 44715; City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 638, 93 S. Ct. 1854, 1862, 36 L. Ed. 2d 547, 556 (1973).

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 governments. Hoagland v. Town of Clear Lake, 415 F.3d 693, 698 (7th Cir. 2005), cert. denied, 547 U.S. 1004, 126 S. Ct. 1476, 164 L. Ed. 2d 249 (2006); Faux-Burhans v. County Comm'rs of Frederick County, 674 F. Supp. 1172, 1174 (D. Md. 1987), aff'd, 859 F.2d 149 (4th Cir. 1988), cert. denied, 488 U.S. 1042, 109 S. Ct. 869, 102 L. Ed. 2d 992 (1989). In Gustafson v. City of Lake Angelus, 76 F.3d 778, 786-87 (6th Cir. 1996), the court held that FAA regulations do not preempt local land use control with regard to the location or expansion of airport facilities. It concluded that the fact that the FAA has authority to regulate the use of airspace "'does not of necessity lead to the conclusion that localities are no longer free to regulate the use of land within their borders, even where land use regulations may have some tangential impact on the use of airspace.'" Id. at 789-90 (quoting City of Cleveland v. City of Brook Park, 893 F. Supp. 742, 751 (N.D. Ohio 1995)). These federal decisions are consistent with New Jersey case law holding that federal regulations do not preempt state and local jurisdiction with regard to the placement of private aeronautical facilities. Garden State Farms, Inc. v. Bay, 77 N.J. 439, 449 (1978).

Although it is clear that federal law does not preempt the Township's land use authority, the question of state preemption is more complicated. In addressing state preemption, the Garden State Farms Court explained:

A legislative intent to preempt a field will be found either where the state scheme is so pervasive or comprehensive that it effectively precludes the coexistence of municipal regulation or where the local regulation conflicts with the state statutes or stands as an obstacle to a state policy expressed in enactments of the Legislature.

[Id. at 450.]

The Court recognized that the Aviation Act of 1938, N.J.S.A. 6:1-20 to -44, is comprehensive and preemptive, but nevertheless held that "certain responsibilities over the area of land use, development and location of aeronautical facilities" are left to municipalities. 77 N.J. at 451-52. In so doing, it noted the "consistent legislative concern for the infusion of local thinking into the decision as to where to locate aeronautical facilities." Id. at 452. The Court concluded that
the dominant legislative intent in the Aviation Act is to repose in the Commissioner of Transportation the ultimate authority as to the placement of aeronautical facilities, this predicated upon the mandate that the Commissioner shall "supervise" and "regulate" aeronautics in general and the "establishment, location . . . size [and] design . . . of heliports and helistops" in particular N.J.S.A. 6:1- 29]. We can thus agree with the Appellate Division's observation that while municipalities, consistent with the broad statutory purposes of zoning, N.J.S.A. 40:55D-2, may pass ordinances fixing particular land areas for airports or heliports, or even ban them altogether, they must not exercise their zoning authority so as to collide with expressed policy goals of the State legislation, N.J.S.A. 6:1-20, or the final decision of the Commissioner.

[Id. at 454.]

We addressed the preemptive effect of the Aviation Act on local zoning ordinances in Tanis v. Township of Hampton, 306 N.J. Super. 588, 592 (App. Div. 1997), where a property owner challenged a zoning board of adjustment's determination that he could not use a portion of his property as an airplane landing strip. Id. at 592. Although we recognized the Commissioner's broad supervisory authority over the regulation and licensing of aeronautical activities and facilities in New Jersey, we concluded that municipal land use control is not totally preempted in light of the Act's requirement that the Commissioner give due deference to local zoning ordinances. Id. at 598-600.

This case differs from the circumstances presented in Garden State Farms and Tanis as the point of contention here involves the expansion of an existing airport, not the location of a new facility. Further, Solberg Aviation does not argue preemption solely under the Aviation Act but also under the ASZA and its implementing regulations, which require each municipality to recognize an airport as a permitted land use and to incorporate the standards of the Act into its local ordinances. N.J.S.A. 6:1-85; N.J.A.C. 16:62-1.1 to -11.1.

In Patzau v. New Jersey Department of Transportation, 271 N.J. Super. 294, 303-07 (App. Div.), certif. denied, 138 N.J. 268 (1994), we upheld, without addressing preemption, the constitutionality of the ASZA, finding that the act had a rational relationship to a justifiable legislative purpose and that it did not constitute a taking of private property.

To harmonize the apparently conflicting authority, we adopt a balanced approach. Although the ASZA expresses a clear intent that State policies concerning airport operations and development should prevail over local concerns, the regulations require the Commissioner to consider local zoning ordinances when acting on applications to alter an airport facility. Preemption is not complete but occurs only when "the local regulation conflicts with the state statutes or stands as an obstacle to a state policy." Garden State Farms, supra, 77 N.J. at 450. This reasoning is analogous to that employed in Anfuso v. Seeley, 243 N.J. Super. 349, 351 (App. Div. 1990), where we considered the relationship between municipal zoning power and State regulation of navigable water and tidal lands. We noted that while the State has broad power to regulate property pursuant to the Water-Front and Harbor Facilities Act (WFHFA), N.J.S.A. 12:5-1 to -11, nothing in the WFHFA or in the regulations pursuant to the WFHFA evinces an intent to preempt local land use regulation by municipalities. 243 N.J. Super. at 361-62. We found that "the legislative design is to allow municipal land use considerations to co-exist with federal and State regulations to the extent that they are compatible. Where, however, local interests collide with expressed policy goals of State and federal legislation local zoning interests must yield." Id. at 363. We concluded that while local zoning ordinances are not preempted, the municipality's power to regulate the use of property falling under the WFHFA is "narrowly circumscribed." Id. at 366. See also Township of Franklin v Hollander, 338 N.J. Super. 373 aff'd, 172 N.J. 147 (2002) (holding that the Right to Farm Act, N.J.S.A. 4:1C-1 to - 10, preempted municipal land use authority over commercial farms but implementation of the Act requires consideration of land use and zoning considerations).

The same principles apply here. A municipality's ability to regulate land use within an airport safety zone is not entirely preempted by the ASZA. It is, however, narrowly circumscribed because it must conform with the requirements imposed by the regulations.

Further, the Commissioner has theultimate authority to override any local zoning decision if it is contrary to the purposes of the ASZA or the Aviation Act. [FN 5]

[FN 5] This conclusion is consistent with the legal analysis and summary incorporated as "Appendix G" into the Final Report of the New Jersey General Aviation Study Commission, created pursuant to L. 1993, c. 336.
The Township's authority to exercise zoning control over defendants' property is therefore constrained by State law. Acquiring development rights to the airport or fee simple ownership of property within the safety zone would provide the Township with greater control over airport operations than it would have through normal application of the zoning law. We now consider whether the proofs reasonably support defendants' claim.

Continued in Part Two