Opinion
DOCKET NO. A-3967-12T3
07-29-2016
IN THE MATTER OF APPLICATION OF JLJ/GWJ, LLC, for a License to Establish a Restricted Use Helistop at Cedar Lane Farm, 81 Homestead Road, Tewksbury Township, N.J.
Michael B. Kates argued the cause for appellant Friends of Cold Brook Historic District (Kates Nussman Rapone Ellis & Farhi, attorneys; Mr. Kates, of counsel and on the brief; Kathryn L. Walsh, on the brief). David M. Kahler, Deputy Attorney General, argued the cause for respondent Department of Transportation (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nicole T. Minutoli, Deputy Attorney General, on the brief). John J. McNamara argued the cause for respondent JLJ/GWJ, LLC, Cedar Lane Farm. Daniel F. Thornton argued the cause for amicus curiae for Tewksbury Township (Courter, Kobert & Cohen, attorneys; Michael S. Selvaggi, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, O'Connor and Suter. On appeal from the Department of Transportation. Michael B. Kates argued the cause for appellant Friends of Cold Brook Historic District (Kates Nussman Rapone Ellis & Farhi, attorneys; Mr. Kates, of counsel and on the brief; Kathryn L. Walsh, on the brief). David M. Kahler, Deputy Attorney General, argued the cause for respondent Department of Transportation (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nicole T. Minutoli, Deputy Attorney General, on the brief). John J. McNamara argued the cause for respondent JLJ/GWJ, LLC, Cedar Lane Farm. Daniel F. Thornton argued the cause for amicus curiae for Tewksbury Township (Courter, Kobert & Cohen, attorneys; Michael S. Selvaggi, on the brief). PER CURIAM
Appellant, a group of Tewksbury residents known as Friends of Cold Brook Historic District, seeks reversal of the July 8, 2013 final determination of respondent New Jersey Department of Transportation ("DOT") to issue a helistop restricted-use license to JLJ/GWJ, LLC ("applicant" or "JLJ"). Amicus Township of Tewksbury supports the appeal. After reviewing the record, briefs, and controlling legal principles, we affirm in part and remand in part.
A helistop is "an area of defined dimensions, either at ground level or elevated on a structure designated for the landing or take off of helicopters, but not limited in use to that sole purpose." N.J.A.C. 16:54-1.3.
I
In 2009, James L. Johnson, the managing member of applicant, applied to Tewksbury's Land Use Board ("Board") for a use variance pursuant to N.J.S.A. 40:55D-70(d)(1), to enable it to put a helistop on a farm owned by Johnson and other family members that is located in the township. The farm is located in a farm preservation zone, where helistops are not permitted by ordinance; helistops are permitted as a conditional use in only the office/mixed use zone of this municipality. The farm, approximately 236 acres in size, is included within a 2,000-acre parcel of land that is also owned by the Johnson family. The farm is used for cattle breeding and dairy farming.
In his testimony before the Board, Johnson's son, Tucker Johnson ("Tucker"), testified that primarily the helistop would be used for the family's personal transportation needs. Although the application sought an unlimited number of landings and take-offs from the helistop, Tucker indicated the family planned to use the helistop on an average of only twelve times per year.
To distinguish him from his father, we refer to Tucker Johnson as "Tucker." We do not intend any disrespect by addressing him by his forename.
Tucker also indicated he wanted the helistop available to foreign buyers of cattle and cattle embryos, who often travel from farm to farm by helicopter to conduct business. He estimated there would be three to five groups arriving by helicopter in the fall and maybe one or two groups in the spring. He also testified he would make the helistop available to airborne medical rescue squads.
In August 2012, the Board denied the application. In its resolution it made a number of findings, the highlights of which are as follows. The Board determined that even though the estimated use of the family's helicopter on the farm would be only twelve times a year, the Board was concerned the helistop "would likely lead to a substantial increase of helicopter traffic," because the family's helicopter would be available to other family members and they might permit non-family members to use the helistop.
The Board concluded there was insufficient evidence the helistop would induce foreign buyers to visit the farm more frequently because of the presence of the helistop, and thus found the applicant failed to show it would derive an economic benefit if the use variance were granted. Although emergency service personnel testified that the proposed helistop would be helpful for medevac landings, the Board rejected, without elaboration, their testimony because it lacked a "factual predicate." The Board was also skeptical the helistop would be used to provide emergency medical services, given the "paucity of 41 medevac landings in Tewksbury Township over the previous five years and nine months, with few landings in the vicinity of . . . the farm."
A number of residents expressed concern about the noise a helicopter would generate if permitted to land at the proposed helistop. The applicant introduced evidence that the proposed flight path of any helicopter permitted to land at the helistop would be required to enter the township from above Route 78 at a particular point where the helicopter would immediately enter the airspace above the applicant's property. Thus, no helicopter headed for the helistop would pass over property belonging to any other person or entity in Tewksbury.
An expert engineer in the field of sound and vibration presented by the applicant tested the sound generated by the kind of helicopter that would be using the helistop. The sound tests included the area where a helicopter would descend into and ascend out of the helistop, which is the area where the noise generated from a helicopter would have the greatest impact on nearby homes. The expert opined the sound experienced by those in the residences closest to the helistop would not be greater than any other common, ambient sound in the area, such as a passing car, people conversing, or other aircraft flying overhead. Further, the sound produced by a helicopter landing or taking-off would be only seconds in duration.
The Board acknowledged that the sound level that would be produced by helicopters flying into or out of the helistop was of a "low decibel." The Board nevertheless rejected the sound expert's opinion because the sound tests were not performed "under the [proposed] helicopter flight path." The Board further commented, without explanation, that many flights would not be made under the "ideal" conditions the sound tests were conducted and thus the flights would "likely generate significant noise and vibrations to nearby homes." Based upon the testimony of two veterinarians, the Board did acknowledge there was insufficient evidence the helicopter flights would have any impact on a horse's behavior.
There was evidence the area around the helistop would be covered with a kind of turf to make it appear as though the landing area was merely grass. No other structure would be in the area of the helistop except for landing lights, but the Board was concerned such lights would be visible at night to neighboring property owners.
The Board determined the presence of helicopters would denigrate the goals of the [township's] Master Plan, as they would be "an aesthetic impairment to the bucolic countryside" and "discordant and incongruous with the farms, estates, and historic homes in the neighborhood." Of significant concern to the Board was that, given that State and federal law generally preempts municipal law in the area of aviation, the township would not be able to impose or enforce any meaningful restrictions on the use of the helistop if the Board granted the use variance. Specifically, the Board recognized its legal inability to control the flight pattern or the number of flights to and from the helistop; the number of parties the Johnson family would allow to use the helistop; the type of helicopters that would fly into and out of the farm; the time of the flights; and the noise generated from the helicopters.
Finally, the Board noted there was a local airport approximately ten miles from the farm into and out of which the family could fly its helicopter. In addition, it determined the applicant could use a helistop another family member had in a neighboring township.
After it was denied its application for a use variance, the applicant sought to obtain a restricted-use license from the DOT. As part of that process, in August 2012, Johnson filed a Notice of Landing Area Proposal and Notice of Proposed Construction with the Federal Aviation Administration ("FAA"). In that application, Johnson stated the helistop would be used for fewer than fifty round trips per year. The FAA determined the proposed helistop would "not adversely affect the safe and efficient use of the navigable airspace by aircraft" provided certain conditions were met. None of those conditions is relevant to the issues on appeal.
On August 29, 2012, the applicant applied to the DOT for a permanent aeronautical facility license to enable it to construct a helistop. The application contained a number of documents, including those which the applicant had filed with the FAA. In accordance with N.J.A.C. 16:54-2.1(a)(6)(i), the applicant also provided the DOT with a copy of the Board's resolution denying its application for a use variance. Although not required to do so, the applicant submitted transcripts of several of the public hearings before the Board.
In a letter accompanying the application to the DOT, JLJ noted that members of the local rescue squads had testified they were in favor of the helistop because not only would it provide a landing zone for helicopter ambulances for that area of the township, but also would provide the only place in the township where rescue helicopters could land at night.
The applicant further challenged the Board's conclusion the use of the helistop would create too much noise. During the test flights to measure the sound, the helicopters followed the proposed flight path. The sound of a helicopter landing in the area of the closest homes was at most fifty-five decibels, which is comparable to the sound of normal conversation.
In accordance with N.J.A.C. 16:54-2.3, the applicant published a public notice of its license application. In a letter dated September 7, 2012, the DOT advised the mayor of Tewksbury of JLJ's application and invited the township to contact the DOT in writing should it have any issues or recommendations about the license application. Numerous letters were received from the public in opposition to the application.
The Tewksbury Township Committee ("Committee") and the Board also submitted two letters opposing the DOT application. In those letters they repeated the findings that were set forth in the Board's resolution, except for those concerning noise.
Appellant also filed a letter in opposition to the application, in which it argued that the flight of helicopters into and out of the farm, conducted primarily to meet only the personal transportation needs of the Johnson family, would have a negative impact upon the community. In particular, appellant noted the helicopter flights would violate the township's land use policy of promoting a quiet, rural, and scenic atmosphere, and the use of the helistop would cause light and noise pollution.
In February 2013, two DOT aeronautical operations specialists evaluated the application using the standards set forth in N.J.A.C. 16:54-2.5(a). Initially, each determined that the public health, safety, and welfare would not be substantially affected by the issuance of the license. See ibid. The evaluators also completed a "Permanent Aeronautical Facility Application Evaluation Ranking" form, on which appeared a matrix table for each evaluator to complete.
N.J.A.C. 16:54-2.5(a) provides:
All applications for aeronautical facility licenses shall be processed . . . to determine whether the issuance of such license would be consistent with public health, safety and welfare, and the development of aeronautics in the State. In making its determination, the Division will consider aviation development, surrounding land uses, local land use ordinances, topography, noise characteristics of the types of aircraft to be used, air traffic patterns proposed to be used, air operational demand, aircraft movement operations, capacity of nearby aeronautical facilities, economic factors, and any other factors deemed relevant by the Department.
[N.J.A.C. 16:54-2.5(a).]
The matrix table lists the twelve criteria set forth in N.J.A.C. 16:54-2.5(a). At the time of the DOT's review of this case, an evaluator was required to assign a numerical value between one and five to each criterion, which represents the impact the license for the proposed facility would have upon development. Number one signifies the most impact or the least favorable for development, and number five indicates the least impact or the most favorable for development.
The twelfth criterion in N.J.A.C. 16:54-2.5(a) is labeled "Other," and permits the evaluator to consider any other factors the evaluator deems substantial.
Also imprinted on the matrix table is a pre-assigned multiplier for each of the twelve criteria. The multipliers are one, two, or three. After an evaluator assigns a value between one and five to each criterion, each value is multiplied by the pre-assigned multiplier to arrive at a final number for that criterion. Each criterion is added together to arrive at that evaluator's score. That score is then averaged with the other evaluator's score to arrive at the applicant's final score.
Here, one evaluator arrived at a score of sixty-two and the other a score of fifty-five. Thus, the average of the two scores, 58.5, was the applicant's final score. The evaluators did not use the twelfth criterion and when such criterion is not used, a license is recommended for approval if the final averaged score of the two evaluations is fifty or more, provided all other licensing requirements are met.
On March 15, 2013, DOT issued a letter authorizing construction of the helistop and indicated it would issue the requested-use license to JLJ upon final inspection. The DOT also imposed restrictions on the license, which included limiting take-offs and landings to no more than thirty per month, and that all flights take place between the hours of 7:00 a.m. and 10:00 p.m.
In March 2013, appellant wrote to the DOT objecting to its decision to issue the restricted-use license, and requested the DOT impose the following conditions on the license: (1) that take-offs and landings be limited to no more than fourteen non-emergency operations per year; (2) that flights be limited to daytime hours; (3) that advance notice of any helicopter operations be provided to neighbors; (4) that only Johnson family members or customers be permitted to use the helistop; (5) that no refueling be permitted on the farm; (5) that no aircraft hangers be constructed on the farm; (6) that all pilots use the designated flight paths; (7) that the applicant file quarterly reports identifying each operation at the helistop and other details concerning its use; (8) that there be stipulated penalties should the applicant violate any conditions; and (9) that the license be suspended should there be any negative environmental impact.
In May 2013, the mayor of the township wrote to the DOT to protest its decision, pointing out the DOT unjustifiably permitted the applicant more flights per year than what it was seeking. The mayor also claimed the applicant had sought fewer flights from the Board in its application for a use variance, but the record actually indicates Johnson sought unlimited take-offs and landings from the helistop in that earlier application.
The mayor also expressed concern the Johnson family might have a function at the farm where there would be multiple take-offs and landings in one day. Asserting that he was advocating on behalf of the community, the mayor requested that there be a limit of four take-offs and landings in any one day. He also requested there be no flights at night and no refueling at the farm.
On June 6, 2013, the DOT issued a restricted use license to JLJ. The conditions on the license were: (1) no flights during the night, except for "emergency medevac, law enforcement, etc."; (2) no refueling on site; (3) pilots had to follow the designated approach and departure paths, unless to do so would jeopardize flight safety; (4) no more than thirty take-offs and landings per month from March through November and no more than fifteen per month from December through February; and (5) prior permission was required before any landing.
On July 8, 2013, the Director of the Division of Multimodal Services of the DOT issued a written statement of reasons for granting the license. The Director indicated he had reviewed the submissions of the appellant, applicant, Committee, Board, and written comments submitted during the thirty-day comment period. He concluded the matter was not a "'contested case' because [the] licensing application [was] not an 'adversary proceeding.'" He also found that a public informational hearing was unnecessary because there were not any credibility or material issues of fact in dispute, and all of the documents submitted in connection with the application clearly framed the issues.
The Director determined "there could be appropriate use of the helistop, taking into account local sentiment, by adding additional restrictions to any eventually granted to the applicant." He concluded
[t]he stated restrictions in the license application approval are meant to maintain the preservation of the surrounding land use and the goals therein. The depicted primary approach/departure path was designed to maximize flight over [applicant's farm] property which is over 2000 acres. The helistop is located approximately 6000 feet from [the farm's] property line on the depicted approach/departure path which should place helicopter traffic at a substantial altitude when over any residential properties. Only daylight use of the facility, except for emergencies, is permitted, precluding any nighttime flight sounds. Further, the number of flights is limited on a seasonal and monthly basis. The approved restricted license preserves the authority of the Commissioner over aviation in this State while taking into account the local sentiment regarding this specific facility in the exercise of that authority.
This appeal ensued.
II
Appellant's primary arguments on appeal are: (1) the DOT erred by declining to hold either a public informational, see N.J.A.C. 16:54-2.4, or refer the matter to the Office of Administrative Law for a contested case hearing, see N.J.A.C. 1:1-2.1; (2) the matrix is inherently flawed and its use prejudiced appellant; and (3) the DOT's decision to grant the helistop was arbitrary because it failed to adequately weigh the concerns of the township's residents.
In its brief, appellant also had argued the use of the matrix to evaluate the criteria in N.J.A.C. 16:54-2.5(a) constituted improper rulemaking but appellant withdrew that contention during oral argument.
Our scope of review in an appeal from a final decision of an administrative agency is strictly limited. In re Taylor, 158 N.J. 644, 656 (1999). Our inquiry is limited to
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).]
"Without a 'clear showing' that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record, an administrative agency's final quasi-judicial decision should be sustained, regardless of whether a reviewing court would have reached a different conclusion in the first instance." Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009) (citation omitted). "A reviewing court 'may not substitute its own judgment for the agency's, even though the court might have reached a different result.'" In re Stallworth, 208 N.J. 182, 194 (2011) (quoting In re Carter, 191 N.J. 474, 483 (2007)). "This is particularly true when the issue under review is directed to the agency's special 'expertise and superior knowledge of a particular field.'" Id. at 195 (quoting In re Herrmann, 192 N.J. 19, 28 (2007)).
Further, although we are not bound by an agency's legal conclusions, we nonetheless generally defer to the agency's interpretation of its own regulations and authorizing statutes. Utley v. Bd. of Review, 194 N.J. 534, 551 (2008). "'An agency's interpretation of its own rule is owed considerable deference because the agency that drafted and promulgated the rule should know the meaning of that rule.'" N.J. Healthcare Coal. v. N.J. Dep't of Banking & Ins., 440 N.J. Super. 129, 135 (App. Div.) (quoting In re Freshwater Wetlands Gen. Permit No. 16, 379 N.J. Super. 331, 341-42 (App. Div. 2005)), certif. denied, 222 N.J. 17 (2015).
Pursuant to the Aviation Act, N.J.S.A. 6:1-20 to -62, the DOT is charged with the
supervision over aeronautics within this State, including, but not by way of limitation . . . heliports and helistops . . . [It] may adopt and promulgate reasonable rules, regulations and orders . . . commensurate with the needs of public safety . . . and to develop and promote aeronautics within this State.Thus, the DOT has "the ultimate authority as to the placement of aeronautical facilities." Garden State Farms, Inc. v. Bay, 77 N.J. 439, 454 (1978). A municipality may adopt ordinances restricting helistops under N.J.S.A. 40:55D-2, but a municipality cannot exercise its zoning authority "so as to collide with expressed policy goals of the State legislation, N.J.S.A. 6:1-20" and the DOT is not required to "give controlling weight to local zoning provisions." Garden State Farms, supra, 77 N.J. at 454-55 (internal quotation marks omitted).
[N.J.S.A. 6:1-29.]
But the DOT may not "'arbitrarily override all important legitimate local interests[,]'" and it "'ought to consult with the local authorities and sympathetically listen and give every consideration to local objections, problems and suggestions in order to minimize the conflict as much as possible.'" Id. at 455 (quoting Rutgers, State Univ. v. Piluso, 60 N.J. 142, 153-54 (1972)). In fact, the failure of the DOT "to weigh conscientiously local interests, to examine carefully whether the proposed navigation facility is compatible with the surrounding land uses and to consult the local ordinances and authorities in making its licensing decision would constitute an abuse of discretion." Id. at 456.
Thus, while it is clear the DOT must carefully consider the local municipality's zoning concerns, in the final analysis, the "ultimate authority over the regulating and licensing of aeronautical activities and facilities" remains with the DOT, which possesses sufficient statutory authority and expertise "to override local zoning decisions," see Tanis v. Twp. of Hampton, 306 N.J. Super. 588, 599-600 (App. Div. 1997), and retains "supervision over aeronautics within this State, including, but not by way of limitation, the aviation, flight and operation of aircraft, the establishment, location, maintenance, operation, . . . and use of helistops . . . ." N.J.S.A. 6:1-29.
In its first argument point, appellant maintains the DOT was required to have conducted either a contested case or an informational hearing before determining to issue the license. We disagree.
Appellant argues that a hearing is required under the Aviation Act, specifically N.J.S.A. 6:1-31, because this provision provides that "[i]t shall be the duty of the commission to hold public hearings on matters affecting aeronautics." N.J.S.A. 6:1-31. In further support of its argument, appellant cites Pa. R.R. Co. v. N.J. State Aviation Comm'n, 2 N.J. 64, 68-72 (1949), where the Court held a hearing was necessary when considering an airport license, given an airport's "vital[] relat[ion] to the public health and safety."
The commission is the "state aviation commission." See N.J.S.A. 6:1-2. Subsequent legislation transferred all Title Six "functions, powers and duties" to the DOT. N.J.S.A. 27:1A-3. --------
However, N.J.S.A. 6:1-31 was enacted in 1938 and Pa. R.R. Co. decided in 1949. Thereafter, in 1968, the Administrative Procedure Act ("APA"), N.J.S.A. 52:14B-1 to -24, was passed. The APA defines a "contested case" as an
adversary proceeding, including any licensing proceeding, in which the legal rights, duties, obligations, privileges, benefits or other legal relations of specific parties are required by constitutional right or by statute to be determined by an agency by decisions, determinations, or orders, addressed to them or disposing of their interests, after opportunity for an agency hearing.
[N.J.A.C. 1:1-2.1 (citing N.J.S.A. 52:14B-2)(emphasis added).]
As is clear in the APA's definition of "contested case," a hearing is not necessary every time the DOT is considering whether or not to grant a license. Ibid. In Twp. of Fairfield v. State, Dep't of Transp., 440 N.J. Super. 310 (App. Div.), certif. denied, 222 N.J. 310 (2015), we considered but rejected the premise that a township had a constitutional right to a contested hearing. Id. 321-22. We explained that
[i]t is well established that "[t]he requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." Bd. of Regents v. Roth, 408 U.S. 564, 569, 92 S. Ct. 2701, 2705, 33 L. Ed. 2d 548, 556 (1972).
Fairfield does not have a "liberty interest" that has been implicated by the helistop application. Likewise, Fairfield has no protected property interest. A person or entity that is merely interested in, or potentially affected by, the outcome of an administrative decision does not have a constitutional right to a contested case-type hearing concerning an application. Elizabeth Fed. Sav. & Loan Ass'n v. Howell, 24 N.J. 488, 505-06 (1957).
[Ibid. (emphasis added).]
Similarly, appellant, which comprises of a group of Tewksbury residents, does not have a sufficient property interest to entitle it to a contested case hearing. See In re Freshwater Wetlands Statewide Gen. Permits, 185 N.J. 452, 473 (2006) (finding neighboring property owners "did not possess the type of 'particularized property interest' that entitled them to a trial type hearing" before Department of Environmental Protection issued permit to fill wetlands because the threat to their properties was speculative); In re AMICO/Tunnel Carwash, 371 N.J. Super. 199, 212 (App. Div. 2004) (holding "appellants' ownership of property adjoining [site of proposed carwash] does not give them a particularized property interest . . . that entitles them to a hearing on constitutional grounds"); Spalt v. N.J. Dep't of Envtl. Prot., 237 N.J. Super. 206, 212 (App. Div. 1989) (finding that proximity to a development site and fear of injury to their property did not entitle citizens group consisting of area property owners and shell fisherman to a contested case hearing), certif. denied, 122 N.J. 140 (1990)).
As for appellant's contention the DOT was required to conduct a public informational hearing, we rejected a similar claim in Fairfield, supra, 440 N.J. Super. at 322. Citing N.J.A.C. 16:54-2.4(a), we held that whether to conduct such a hearing lies within the discretion of the DOT. Thus, "a hearing is neither automatic nor mandatory in all cases." Ibid.
We further note that, here, the DOT specifically invited the township to submit to it any concerns it had about the helistop, as well as any recommendations the township wanted the DOT to consider. Appellant and the township had ample opportunity -- and did in fact express -- their opposition to the license. Before it made its decision to issue the restricted-use license, the DOT had transcripts of multiple public hearings held before the Board; the submissions the appellant, the Board, the Tewksbury Township Committee, and the applicant provided to the DOT; the Board's resolution; and numerous letters from residents of Tewksbury.
While clearly there were differences of opinion about the proposed helistop, there is no indication the DOT was incapable of sorting through the evidence and identifying that which was relevant and material to evaluating the criteria in N.J.A.C. 16:54-2.5(a) and making an informed decision. Appellant has failed to show that it was denied the opportunity to present any relevant fact or argument in support of its opposition to the application. On balance, under these circumstances and giving deference to DOT's interpretation of its own regulations, we cannot conclude that the denial of a hearing was arbitrary, capricious or unreasonable.
Appellant next contends the matrix is flawed. Specifically, it maintains an evaluator should be able to assign a value of zero to any of the criterion he deems appropriate. For example, here, the evaluators assigned a one to the criterion "local land use ordinances" even though helistops are prohibited in the farmland preservation zone. Appellant argues that even if the evaluators wanted to assign a value of zero, they were forced to assign this category a one, the lowest number available under the then-existing matrix scheme. When combined with the pre- assigned multiplier of three, the total score for the category became three, which drove up the final score.
The DOT counters that assigning a numerical value of one to this category was appropriate in this case because helistops are permitted in the farm preservation zone with a use variance, and that one of the principal reasons the Board declined to grant a use variance was its inability to enforce any conditions it might impose to control the use of the helistop. Unlike the Board, however, the DOT does have the authority to impose and enforce restrictions. Further, even if both evaluators had assigned a zero to this criterion in this case, the average final score still would have been a fifty-five, which exceeds the standard of fifty necessary for the evaluators to recommend that a license be issued.
In addition, we note the evaluators' recommendation was just that: a recommendation. Moreover, it is an internal recommendation. The Director's final decision is that which controls the outcome of an application, not what the evaluators recommend. Here, there is no indication the Director failed to conduct its own review or blindly accepted the evaluators' recommendation. Indeed, the fact the Director imposed more restrictions on the license than what the evaluators recommended indicates the Director conducted a separate review.
Appellant contends the DOT issued the license in "blatant" disregard of the community's interests. Specifically, it contends there were "unimpeachable concerns" there would be an "ever-increasing" number of flights at "all hours of the day" and "over the homes of neighbors," without any ability to control or enforce conditions of its use.
Although we cannot discern a reasoned basis for permitting the applicant to have more flights than what it was seeking, there is no indication in the present record that the number of flights the DOT did permit will be constantly on the rise and exceed the levels approved by the DOT. Certainly, the other three concerns are without merit.
Specifically, the DOT prohibited flights during the night, unless the helistop is needed because of a medical emergency or its use is required by the police. Appellant was concerned about lights shining around the site at night, but as flights during the night are prohibited except for medical emergencies or for use by law enforcement — and it is appellant's and amicus's position that use of the helistop by a medevac helicopter will be rare — this concern has been all but abated. The designated flight path is over only the applicant's property; a pilot may deviate from a flight path if necessary for reasons of safety, but that is hardly an unreasonable condition. Finally, although the Board may lack the authority to enforce certain restrictions on the use of the helistop, the DOT does not.
Consistent with the DOT's obligation to consider local concerns, other restrictions were placed on the license. Some of those restrictions originated with appellant or the township. The DOT did not agree to all of their requests, but its duty is not to accede to every demand regardless of its merit but to give every consideration to local objections, problems, and suggestions.
As previously indicated, we cannot discern from the record or the Director's statement of reasons why the DOT permitted the applicant 315 landings and take-offs per year when the applicant anticipated fewer than fifty round-trip flights per year. As a general principle of sound administrative practice and judicial review, agencies must articulate in their final decisions the specific reasons they relied upon in reaching their determinations. Lister v. J.B. Eurell Co., 234 N.J. Super. 64, 73 (App. Div. 1989). While in many instances the record allows a reviewing court to ascertain the reasons behind a decision, that is not the case here as to this particular aspect of the DOT's decision.
Accordingly, we remand this matter to the Director with the instruction he provide his reasons for allowing the number of flights permitted in the certificate of license insofar as that number exceeds the applicant's request. This statement of reasons shall be issued within sixty days. The DOT is free, of course, on remand to reconsider this aspect of its decision. Any party aggrieved by the outcome of the remand seeking appellate review must file a timely new appeal from that determination.
Finally, to the extent that any arguments raised by the parties have not been explicitly addressed in this opinion, including JLJ's claim that appellant lacks standing, it is because we are satisfied that the arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E).
Affirmed in part and remanded in part for further consideration in accordance with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION