NOT FOR PUBLICATION WITHOUT THE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,

Appellant,

v.

STATE OF NEW JERSEY,

DEPARTMENT OF TRANSPORTATION,

Respondent.

__________________________________________________

Argued November 12, 2014 - Decided

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. 

April 10, 2015

APPROVED FOR PUBLICATION

April 10, 2015

APPELLATE DIVISION
2 A-2390-13T1

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 
3 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.
4 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. 
5 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.
6 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 
7 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 C3 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 
8 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 
9 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 
10 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 
11 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 
12 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] 
13 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.
14 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).
15 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 
16 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.
______________________________________

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 
2 A-2390-13T1

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.