State airport closings offer lessons on the national level

 - July 8, 2008, 10:19 AM

New Jersey has lost half the airports it had at the end of World War II, with the number dwindling from about 100 to 45, according to aviation attorney William G. Mennen IV, a speaker at this year’s New Jersey Aviation Conference. The lessons learned from the closure of these airports could be instructive for those trying to prevent airport closures in other parts of the country.

Most of the airports that have disappeared from the state met their demise as a result of municipal actions. As recently as May, for example, one privately owned airport closed because the owners could not pay the taxes. In another case, a Superior Court judge recently ruled that Readington Township (N.J.) could seize 624 acres of airport property that has been owned by the Solberg family since 1939, leaving 102 acres for the airport. That decision is being appealed.

Mennen cited numerous statutes that would render illegal the actions resulting in airport closings. In one case the statute says, “Except as specifically provided by law, the Commissioner (of Transportation) shall have supervision over aeronautics within this state…” Another statute he quoted states, “The ultimate authority over the regulating and licensing of aeronautical activities and facilities in New Jersey resides with the commissioner…”

In other words, New Jersey has lost dozens of airports in large measure because local authorities have exercised authority not legally designated to them. Under the existing law, that authority rests with the Commissioner of Transportation.

“There are airports in the state that are ruled ‘non-conforming,’” Mennen said. He cited a statute that declares that ruling illegal: “For purposes of land use and zoning, aeronautical activities are normally considered permitted uses at public-use aeronautical facilities.”

In another case, Somerset Airport was sued by the Bedminster, Branchburg, Bridgewater Concerned Citizens Coalition (BBBCCC), an anti-airport group that has filed numerous suits against the airport over the years, claiming that helicopters did not have the right to land at Somerset. The suit was based on a Bedminster Township ordinance that defined an airport as a facility for fixed-wing aircraft. The BBBCCC lost the suit and then lost an appeal. Once again, Mennen quoted the law: “Aircraft capable of meeting FAA certification specifications for landing or takeoff at an aeronautical facility of a specified size may not be prohibited from using any public-use aeronautical facility of that size or greater.”

He summed it up by quoting from a specific case: “The more wide-ranging and prevailing legal tenet clearly set forth by Garden State v. Bay was that where there was any conflict between municipal zoning regulations and the Commissioner of NJDOT (example: licensing) or a conflict with state policy regarding aviation (example: The Aviation Act), the inconsistent zoning regulations shall be inoperative.”

Pilot and 11-year Readington Township resident Don Baldwin, who has done extensive research on the case involving Readington Township’s long campaign to seize most of Solberg Airport’s acreage under eminent domain, addressed that issue and its relationship to airports in New Jersey.

Baldwin used the state’s Open Public Records Act (OPRA) to obtain documents that he believes the township attempted to conceal from the public. Baldwin maintains that as a result of his investigation of the Solberg case he has become an expert on the techniques local authorities use to achieve their goals. “How can you counter government bullies who are up to no good?” he asked. “Well, first you have to find out what those officials are up to, what they are doing behind the scenes.”

Through the use of OPRA, Baldwin was able to obtain records revealing that Readington’s legal fees have averaged about $20,000 a week for several years–in some cases five times higher per capita than surrounding towns of similar demographics.

He also uncovered the fact that the township had hired a public relations firm to convince residents that Solberg Airport compromised home values and safety. He maintains that the town concealed its six-figure investment (of public funds) in the project by having its lawyers hire the agency and pay the bills so the cost would not appear on the ledger as a township expense.

Baldwin also alleged that for a period of 24 years the township had refused to comply with the state’s 1983 Airport Safety Zone Act, designed to protect pilots and residents living near the airport.

The town’s reasoning for attempting to seize the property is to preserve open space. But it was open space when pioneer aviator Thor Solberg founded the airport, and it is open space today. “Readington has satisfied its open space obligations by 15.8 times,” Baldwin said.

Summing up the eminent domain issue, Baldwin told the 100 conference attendees, “If a local government can abuse the eminent domain statute and seize airport land with the blessing of the state’s Superior Court, then any field in the state is vulnerable to such an action. A community would only have to declare that it simply wants the land as open space.”

Another speaker, aviation attorney Jack McNamara, former president of the Lawyer Pilots Bar Association and an aviation advocate on the state and national level, reported on the work and accomplishments of the New Jersey General Aviation Study Commission. In 1998 that commission, with McNamara as chairman, issued a 143-page report believed to be the most detailed study of aviation issues ever undertaken by any state.

Over a period of two years, 80 witnesses testified in 23 hearings. Among the witnesses were officials from the NJ DOT, the FAA, the New Jersey League of Municipalities, officials from municipalities that host airports, operators of public and privately owned airports, noise experts from MIT and the State of New Jersey, real-estate appraisers and residents who live near airports.

The report made 19 recommendations, one of which was a suggestion for a program that led to legislation making it possible to preserve airports in perpetuity. The recommendation gives the state the right to buy development rights from
an airport, which will then permanently prohibit the land from being sold for development. The law also gives the state the right to purchase airports outright. Three airports have sold development rights and three have been purchased outright. Nine other airports have applied to sell development rights.

Political considerations render the Commissioner of Transportation impotent in aviation matters, according to McNamara. To solve this problem he proposed the establishment of a New Jersey Airport and Air Transportation Authority. If this were implemented, the Division of Aeronautics would be removed from the NJDOT. The authority would assume all the functions of the current Division of Aeronautics.

McNamara closed his remarks with a prescient quote from then Chief Judge Benjamin Cardozo of the Appellate Division of the State of New York. “The quote dates back to the early ’30s, when aviation was still in its infancy: ‘Aviation is today an established method of transportation. The city that is without the foresight to build the new traffic may soon be left behind in the race of competition.’”

The conference’s keynote speaker, Jack Olcott, focused on the current conflict between the airlines and general aviation. “The key issue is acceptance of general aviation. GA should be accepted as an integral part of aviation,” he declared. “The airlines want more control. We don’t want airlines controlling air traffic. They want fees for general aviation because it will drive GA access down.

“Airlines serve only a small percentage of the nation’s airports. General aviation serves about ten times as many. Without airports, we don’t have aviation,” he said.

“We need a national policy applying to all aviation,” Olcott said. “The winner will be the nation’s transportation system.”