                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-2390-13T1


TOWNSHIP OF FAIRFIELD,                   APPROVED FOR PUBLICATION

                                              April 10, 2015
     Appellant,
                                           APPELLATE DIVISION
v.

STATE OF NEW JERSEY,
DEPARTMENT OF TRANSPORTATION,

     Respondent.
__________________________________________________

         Argued November 12, 2014 - Decided April 10, 2015

         Before Judges Fisher, Nugent and Manahan.

         On    appeal    from      the    Department       of
         Transportation.

         Dennis M. Galvin argued the cause for
         appellant (The Galvin Law Firm, attorneys;
         Mr. Galvin, on the briefs).

         Nicole T. Minutoli, Deputy Attorney General,
         argued the cause for respondent State of New
         Jersey Department of Transportation (John J.
         Hoffman, Acting Attorney General, attorney;
         Lewis A. Scheindlin, Assistant Attorney
         General, of counsel; Ms. Minutoli, on the
         brief).

         Salvatore Salibello, attorney for respondent
         Pio Costa Enterprises, joins in the brief of
         respondent   New    Jersey   Department   of
         Transportation.
      The opinion of the court was delivered by

MANAHAN, J.S.C. (temporarily assigned)

      Fairfield     Township       (Fairfield)     appeals       from     the   final

determination     of   the    Director      of   the   Division     of    Multimodal

Services,     Department      of        Transportation     (DOT),        granting     a

Helistop "Special Use" license to Pio Costa Enterprises upon

application of one of its principals, Anthony Pio Costa (Pio

Costa).     After reviewing the record in light of the contentions

advanced on appeal and the applicable law, we affirm.

      Pio Costa is an owner of property located in an industrial

park in Fairfield.           Pursuant to Fairfield's zoning ordinance,

the   use    of    the   property          for   helistops       is      prohibited.

Nonetheless,      commencing       in    1994,   Pio     Costa    was     granted     a

temporary helistop license by the DOT.                   The temporary license

was renewed in 1995 and 1996.               In 1997 Pio Costa applied for a

permanent helistop license which the DOT issued for the time

period of January 1, 1998 to January 31, 1999.                   After expiration

of the license, Pio Costa continued to use the property as a

helistop.

      Fairfield instituted a civil action in the United States

District Court naming Pio Costa and various corporate entities

as defendants relative to the use of the helistop.                       In a ruling

on March 20, 2006, a district judge denied Pio Costa's motion




                                           2                                 A-2390-13T1
for   summary      judgment      noting       the     validity          of     the    zoning

ordinances      was      not    preempted        by        the     Federal           Aviation

Administration.       The district judge remanded the matter to the

Superior Court of New Jersey for disposition.

      Subsequent to the remand, and upon the filing of an order

to show cause by Fairfield, the trial court entered an order

temporarily     restraining        the    defendants             from     "operating         or

permitting to be operated any and all helicopters upon, on or

from the subject property pending further order of the court."

A hearing took place on April 18, 2007.                       After oral argument,

the judge continued the restraints.                        The judge noted in the

decision   that    Pio    Costa    failed      to     apply       to     the   DOT     for    a

license.

      Thereafter,        Pio    Costa     filed       an    application          with      the

Division of Aeronautics of the DOT seeking a permanent helistop

license.      In   response,      the    DOT    denied       the        issuance      of   the

requested license predicated upon the requirement that Pio Costa

apply to the appropriate planning authority for permission to

maintain the proposed helistop.               N.J.A.C. 16:54-2.1(a)(6).

      In 2010, Pio Costa applied for a use variance.                                  At the

conclusion    of   three       hearing    dates,      the     Board       of    Adjustment

(Board) denied the application in a resolution.                           Pio Costa then

filed a complaint in lieu of prerogative writs.




                                          3                                          A-2390-13T1
       Pio Costa's attorney informed the DOT by letter about the

Board's denial of the application.                           In a written response, the

Deputy      Attorney          General        on    behalf    of     the    DOT,   advised      the

attorney            that     the       DOT     "will      not     approve     your      client's

application           for     a    permanent         license."        The    letter      further

advised         a    waiver       of     the      application's      requirements        may    be

requested but "that it is unlikely" a waiver would be granted

"in light of [Fairfield's] denial of [Pio Costa's] application

for    a    variance."             Notwithstanding           this    communication       and    in

clear contravention to its advisement, the DOT did permit the

application to proceed which ultimately resulted in the issuance

of a license in February 2012.1                          Fairfield was never notified of

the application's "revived" status nor was it consulted for its

input.

           In   furtherance             of   the    revived     process,      Pio    Costa     was

required to publish public notice of the application, which he

did.        There          were    no    responses        filed     with    the   DOT    to    the

publications.              During the process, two specialists from the DOT

provided Pio Costa with a list of site conditions that were

required to be corrected prior to the issuance of a license.                                   In

February 2012, Pio Costa corrected the site condition issues and

1
  The record includes e-mails between Pio Costa's counsel and an
Aeronautical Specialist from the DOT relative to a continuing
investigation with the purpose of re-licensing.



                                                     4                                  A-2390-13T1
provided       the    required      documentation         to    the    DOT.        Pio   Costa

advised the DOT that the helistop was ready for inspection.                                  Two

specialists from the DOT completed an evaluation using licensing

criteria       set    forth    in    N.J.A.C.      16:54-2.5.           Pursuant      to     the

evaluation, the specialists found there were no negative impacts

on    health    and    safety       and   defendant       was       issued   a     license   on

February       28,    2012.         The   license    was        purportedly        served     by

counsel upon Fairfield on March 6, 2012.2

       When Fairfield became aware of the use of the property as a

helistop,       it    filed     a    timely       appeal       of    the     DOT    decision.

Subsequent to a pre-argument conference, the appeal was stayed

pending the outcome of the prerogative writ action.                                 After Pio

Costa    dismissed       the    action     with     prejudice,         the    stay    of     the

appeal was lifted.

       During the pendency of the appeal and in accordance with

Rule    2:5-1(b),       the    Director       of    the    Division          of    Multimodal

Services (Director) filed a "Statement of Reasons for Decision."

Thereafter, the DOT filed a motion, which we granted, seeking

remand for further consideration of issues raised on appeal.

       Upon remand, the DOT requested Fairfield and Pio Costa to

provide additional arguments.                 Fairfield argued the helistop was

contrary to sound planning and unsafe due to its proximity to an

2
    Fairfield denies receiving notification in this manner.



                                              5                                       A-2390-13T1
airport,    a    cellular    tower,    a       car    wash,       a    neighborhood        of

residential homes and a highway.                In response thereto, and after

noting     the   objections    of     Fairfield,            the       DOT    altered      the

"Restricted Use" license issued to Pio Costa to a "Special Use"

license.

    As a result of the DOT's investigation, it was determined

the radio cellular tower, as well as the car wash, was located

outside the safety area specified in the FAA Advisory Circular

for Helistops.      It was also noted Pio Costa erected a four-foot

fence    separating    the   helistop          from   the    car      wash    and     posted

warning signs.        In regard to the residential homes, the DOT's

investigation determined the nearest residence was not impacted

by the approach/departure path.                The DOT also made note that it

was normal procedure to place the approach/departure path over a

highway to have minimal impact on residential areas.                                 In the

"Statement of Reasons for Decision", the Director concluded:

            Based upon the review of application, the
            documents from respective counsels from the
            Township of Fairfield and Anthony Pio Costa,
            denial of a variance by the Fairfield Zoning
            Board    of    Adjustment   and    the    site
            inspections, the Division determined that
            Anthony Pio Costa was entitled to a helistop
            license for the Bloomfield Avenue location.
            In this particular instance, there was a
            history of helicopter use at the location.
            Prior helicopter use presented no safety or
            operational   issues   and   there   were   no
            complaints about such use from the general
            public.    The added cellular tower did not



                                           6                                        A-2390-13T1
          create an unsafe condition. The location is
          in an industrial area and is bounded by
          heavily trafficked roadways.   There is no
          interference with residential use.   It was
          determined that Township concerns could be
          addressed by issuing a special use license.
          The special use license restricts users of
          the helistop to Anthony Pio Costa only,
          using the helistop only in the daytime
          visual meteorological conditions in the
          helicopter listed on the license.       The
          license also requires at least one (1)
          safety observer in place when the helistop
          is being used.

    After   the   issuance   of    the   decision,   Fairfield   filed   an

appeal.

    On appeal, Fairfield raises the following points:

                                  POINT I

          THE DEPARTMENT OF TRANSPORATION'S FAILURE TO
          HOLD A CONTESTED PUBLIC HEARING, PRIOR TO
          ISSUING A HELISTOP LICENSE TO PIO COSTA, WAS
          A FATAL PROCEDURAL DEFECT.

                                  POINT II

          THE DOT FAILED TO ADEQUATELY CONSIDER THE C-
          3 ZONE'S PROHIBITION AGAINST HELIPADS AND
          THE ZONING BOARD'S DENIAL OF PIO COSTA'S USE
          VARIANCE.

                              POINT III

          THE DOT'S PROCESS FOR CONSIDERING LOCAL LAND
          USE HAS DEVOLVED INTO APPROVAL, SUBJECT TO A
          LAND USE BOARD DETERMINATION.

                                  POINT IV

          THE DOT'S UNDERSTANDING AND APPLICATION OF
          GARDEN STATE FARMS, INC. v. BAY II IS
          MISPLACED, OR IN THE ALTERNATIVE, THAT THE



                                     7                            A-2390-13T1
          COURT'S RULING OF MORE THAN [35] YEARS AGO
          REQUIRES   RECONSIDERATION, BASED  UPON   A
          CHANGE IN LEGISLATIVE INTENT, BECAUSE THE
          LOCATING OF AERONAUTIC FACILITIES WITHOUT
          LOCAL ZONING APPROVAL RENDERS THE MUNICIPAL
          LAND USE LAW NUGATORY.

              A.    AVIATION ACTS

              B.    OTHER VIEWS

              C.    THE AVIATION ACT DOES NOT PREEMPT
                    THE MUNICIPAL LAND USE LAW AS IT
                    CURRENTLY EXISTS.

              D.    THE HYBRID PREEMPTION PROCEDURE OF
                    GARDEN STATE FARMS IS BAD PUBLIC
                    POLICY    AND    NEEDS    TO    BE
                    RECONSIDERED, BECAUSE IT RENDERS
                    THE MLUL SUPERFLUOUS.

                             POINT V

          THE DOT'S PHOTOS ARE MISLEADING.

    In Fairfield's supplemental brief, it raises the following

points:

                             POINT I

          THE DOT HAS FAILED TO TURN SQUARE CORNERS.

                             POINT II

          THE DOT LACKS AUTHORITY TO ORDER             THE
          ISSUANCE OF ZONING OR BUILDING PERMIT.

                            POINT III

          THE PROPOSED HELISPOT IS UNSAFE.

    Our   scope    of   review    of   a   final   decision    of    an

administrative agency is strictly limited.         In re Taylor, 158




                                  8                           A-2390-13T1
N.J. 644, 656 (1999).              We must sustain the agency's action in

the    absence      of   a   "'clear        showing'       that      it   is     arbitrary,

capricious, or unreasonable, or that it lacks fair support in

the    record[.]"         Circus     Liquors,       Inc.      v.    Governing      Body   of

Middletown Twp., 199 N.J. 1, 9 (2009).

       When     reviewing     a     final     decision         of    an   administrative

agency,       we   consider       whether        there    is       sufficient     credible

evidence to support the agency's factual findings.                               Clowes v.

Terminix Int'l, Inc., 109 N.J. 575, 587 (1988).                           We must affirm

the agency's factual findings if we are satisfied "that the

evidence and the inferences to be drawn therefrom support" the

agency's      decision.       Id.    at     588.     Applying        this      standard   of

review to the issues presented by Fairfield, we discern no basis

to    disturb      the   Director's       decision       to    grant      a    Helistop-Use

Restricted license.

       Fairfield argues its zoning ordinance barring helistops and

the    Board's      resolution      denying        the   application           should   have

effectively precluded the Director from issuing the license.                               We

conclude the adopted regulatory scheme and relevant case law do

not comport with Fairfield's argument.

       Pursuant to the Aviation Act, 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



                                             9                                     A-2390-13T1
           reasonable rules, regulations and orders . .
           . commensurate with the needs of public
           safety . . . and to develop and promote
           aeronautics within this State.

           [N.J.S.A. 6:1-29.]


      Therefore, the DOT is tasked with "the ultimate authority

as to the placement of aeronautical facilities."                     Garden State

Farms,   Inc.   v.   Bay,     77    N.J.   439,    454    (1978).     Thus,    while

municipalities may pass ordinances restricting 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

State legislation, N.J.S.A. 6:1-20[.]"                  Ibid.; see also Overlook

Terrace Mgmt. Corp. v. Rent Control Bd. of W. N.Y., 71 N.J. 451,

461-62 (1976).

      Although the DOT need not "give controlling weight to local

zoning provisions,"          Garden State Farms, supra, 77 N.J. at 454-

55,   neither   should       it    "arbitrarily        [override]   all    important

legitimate local interests[,]" the DOT "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)).    The      DOT's    failure      "to    weigh    conscientiously     local

interests, to examine carefully whether the proposed navigation




                                           10                               A-2390-13T1
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.

       In Garden State Farms, the municipality adopted a zoning

ordinance that prohibited the principal or accessory use of land

for    the    purpose            of    accommodating          helicopter            take-offs       and

landings.          Garden State Farms, supra, 77 N.J. at 444.                                       The

license applicant brought suit asserting the State's statutory

authority over the location of aviation facilities.                                   Ibid.

       The Court disagreed with the applicant on the preemption

issue, but held the "dominant legislative intent of the Aviation

Act   is     to    repose        in     the      Commissioner        of    Transportation           the

ultimate          authority           as      to     the     placement         of     aeronautical

facilities[.]"              Id. at 454.            The Court determined that, although

the    State's              aeronautical            authority        did       not     preempt        a

municipality's authority to adopt zoning ordinances pertaining

to    aeronautical            facilities,            DOT    was     vested     with     the     final

authority         to    approve            and     license    such        facilities.           Ibid.

Because of this, the Court held a local zoning ordinance could

not   operate          as    a   bar       to      DOT's    grant    of    a    license       for    an

aeronautical           use.           Ibid.         Therefore,       a    municipality        cannot




                                                     11                                   A-2390-13T1
exercise its zoning authority "so as to collide with" the final

decisions of the DOT.        Ibid.

       It is clear that while the DOT must carefully consider the

local municipality's zoning concerns, the "ultimate authority

over the regulating and licensing of aeronautical activities and

facilities" remains with the Commissioner.                 Tanis v. Twp. of

Hampton, 306 N.J. Super. 588, 599 (App. Div. 1997) (quoting

N.J.A.C.       16:54-1.1(b)).        The    Commissioner    has     sufficient

statutory authority "to override local zoning decisions," id. at

600,   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, size, design, repair, management and use

of airports . . . ."        N.J.S.A. 6:1-29.

       Here,     the     Director    gave     careful     consideration        to

Fairfield's      objections     to   the    application    and    the   Board's

resolution denying the use variance application.                  Contrary to

Fairfield's contentions, the Director "conscientiously [weighed

the] local interests, [examined] carefully whether the proposed

aviation facility is compatible with surrounding land uses and

[consulted] the local ordinances and authorities in making [his]




                                       12                               A-2390-13T1
licensing decision[.]"              Garden State Farms, supra, 77 N.J. at

456.3

        Under the terms of the license issued by the Director, the

helistop could not be used by anyone other than Pio Costa and

only in a specified authorized aircraft.                    The helistop could

only be used during the day.

        By       consideration   of     the    safety     concerns     raised     by

Fairfield,         the   investigation   of    those     concerns    and   imposing

restrictions on the license granted, the DOT complied with the

requirements of Garden State Farms.

        Fairfield also argues the Director should have conducted

either       a   contested   case    hearing   or   an   informational     hearing

before determining whether to grant the license application.                       We

disagree.

        In the "Statement of Reasons for Decision," the Director

did not specifically reference whether the licensing application

presented a "contested case" under the Administrative Procedure

Act (APA) and, therefore, whether there was a need to conduct an

adversarial hearing.          Nonetheless, we find no error.


3
  As an example of the balanced approach, Fairfield disputed some
of the specialists' individual scoring decisions on the criteria
for licensure set forth in N.J.A.C. 16:54-2.5(a). For the most
part, however, the objections Fairfield raised concern scores
which were weighted by the DOT specialists in Fairfield's
favor.



                                         13                                A-2390-13T1
       The APA defines a "contested case" as:

            a   proceeding,   including   any  licensing
            proceeding, in which the legal rights,
            duties, obligation, privileges, benefits or
            other legal relations of specific parties
            are required by constitutional right or by
            decisions,    determinations,   or   orders,
            addressed to them or disposing of their
            interests, after opportunity for an agency
            hearing[.]

            [N.J.S.A. 52:14B-2(b).]

       Fairfield       accurately    states     it     has       been   granted       the

statutory    authority       to     enact     zoning        ordinances        and   make

decisions    concerning      them.          N.J.S.A.    40:55D-62.             However,

Fairfield has not cited to any statute or controlling decisions

that   require     a    contested    case    hearing        as   a   predicate      when

considering an application for a helistop license.

       Fairfield's right to enact zoning ordinances flows from a

State constitutional provision, N.J. Const. art. IV, § 6, ¶ 2,

but that provision does not grant a constitutional right to a

hearing   under    the     circumstances      of     this    case.       It    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).




                                        14                                      A-2390-13T1
          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).

          Further,   the    Director       did   not    abuse    his    discretion       by

deciding       not   to    conduct     a    public     informational          hearing    as

permitted by N.J.A.C. 16:54-2.4(a).                     This regulation provides

"[t]he Commissioner [DOT] may require . . . public hearings

and/or       informational        meetings       to     be      held        regarding    an

application for license."              N.J.A.C. 16:54-2.4(a).                Therefore, a

hearing is neither automatic nor mandatory in all cases.

          Here, the Director explained in the decision that a hearing

was not required because there were no material facts in dispute

and the issues were clearly framed by the submissions of Pio

Costa's and the Board's attorneys and the Board's resolution

denying the variance.

          Additionally, as noted, Fairfield and Pio Costa were given

the       opportunity      to   provide     further     arguments       regarding       the

license.       Fairfield has provided no support for the argument it




                                            15                                    A-2390-13T1
was denied the opportunity to present any relevant facts or

argument in furtherance of its opposition to the application or

that an informational hearing was requisite for that purpose.

The   record   substantiates    that      no   informational   hearing     was

required.

      In sum, consistent with our standard of review, we conclude

there was sufficient credible evidence in the record to support

the Director's decision to grant the application for a Helistop

"Special    Use"   license.    The   decision     was    neither   arbitrary,

capricious, nor unreasonable.

      The remaining arguments raised are without sufficient merit

to warrant discussion in a written opinion.             R. 2:11-3(e)(1)(E).

      Affirmed.




                                     16                              A-2390-13T1
______________________________________
FISHER, P.J.A.D., concurring.

       I concur in today's judgment, which I agree is compelled by

Garden State Farms, Inc. v. Bay, 77 N.J. 439 (1978), even though

– were the slate blank – I would follow the approach cogently

described by Judge Conford in his separate opinion in that case,

id. at 457-58.     In examining the Aviation Act, N.J.S.A. 6:1-20

to -44, Judge Conford found no evidence the Commissioner was

given the authority to permit a helistop in a place lawfully

rejected by a municipality.           Garden State, supra, 77 N.J. at

457.     The majority, however, determined the Act provides the

Commissioner with superseding authority over the municipality,

although   the   Commissioner   may    not   completely   disregard   local

concerns, 77 N.J. at 451, and must "pay due attention," id. at

455, to the lawful zoning expressions of local governments.             See

also Rutgers, State Univ. v. Piluso, 60 N.J. 142, 154 (1972)

(holding the Commissioner must "sympathetically listen" to local

concerns).

       Here, the Commissioner asserts the municipality's concerns

were considered, and the record does not demonstrate otherwise.

Notwithstanding, I would question whether – when such a conflict

arises – greater weight should be given to the extent, if any,

the public welfare will be served by a helistop's location.             For

example, a decision to permit a helistop in a location found
unsuitable by local authorities, in my view, should be entitled

to less deference when, as here, the helistop will be used only

for the convenience of a single individual with no concomitant

public benefit.       Overriding the expressed local concerns in that

instance seems inconsistent with the Act's purpose, which is to

develop aeronautics in this State "in the interest of public

safety," N.J.S.A. 6:1-20, and not for the pleasure of a single

individual.      I    think,   in   the      circumstances    presented,      the

Commissioner should have assigned much greater weight to the

municipality's opposition and, for that reason, we should give

less deference to the Commissioner's determination.

      Garden   State,    however,     concludes    it   is   enough    that   the

Commissioner listen to the municipality's opposition.                    Because

the   record   does   not   suggest    the    municipality    was     completely

disregarded, and because we are bound by Garden State to defer

in that instance, I am obligated to concur in today's judgment.




                                       2                                A-2390-13T1
