THE LAW GOVERNING AIRPORTS AS A LAND USE IN NEW JERSEY New Jersey recognized early the potential benefits of aviation. In the State Aviation Act of 1937, the New Jersey Legislature gave the goal of "aeronautical progress" the same weight as it had given the goal of "public safety."250 The message to the Commissioner of Transportation implicit in this legislation was to actively develop the State's air transportation infrastructure. Coincidental with the development of aviation in New Jersey was the development of New Jersey's tradition of Home Rule. The Home Rule Act of 1917 [N.J.S.A. 40:42-1 et seq.] and the Constitution of 1947, have been liberally construed by the courts to favor the exercise of zoning power by municipal authority. However, it must be remembered that the zoning power is nonetheless an inherent power of the State, rather than the municipality, and can be delegated to the municipality only by specific legislation. This principle is not merely an expression of the relationship between the State government and the localities of New Jersey, it is a fundamental tenet of the Federalism that binds the United States together. There are two, and only two sovereigns under the United States Constitution-the state governments and the Federal government. The states may delegate authority to the municipality but may never relinquish the sovereign powers which are guaranteed to them by the Tenth Amendment. This principle is a binding force in land use and municipal law.251 The New Jersey Constitution of 1947 gives the Legislature the authority to grant to municipalities the right to regulate municipal land use. Such regulation is deemed to be within the police power of the State. It also permits repeal or alteration by the Legislature.252 The Constitution also allows a municipality to establish an airport and to take land for that purpose subject to provisions requiring just compensation to the affected landowner.253 However, a municipality may not under the guise of a zoning ordinance acquire rights in private property that it may only acquire by purchase or eminent domain.254 Guided by The Home Rule Act of 1917,255 and the foregoing Constitutional provisions, New Jersey courts tend to favor a municipality's power to zone.256 When challenged in court, a zoning ordinance enjoys the presumption that it is reasonable and validly adopted. It is said that this presumption is refutable on a showing that the ordinance in question is arbitrary, unreasonable or capricious.257 However, it is highly improbable that this presumption would be rebutted when challenged by an airport operator. (See) Ostensibly, in New Jersey, the Commissioner of Transportation has the ultimate authority in the placement of aeronautical facilities.258 Clearly, he must weigh conscientiously local interests, examine carefully whether a proposed aeronautical facility is compatible with surrounding land uses, and consult local ordinances and authorities when making licensing decision.259 If he decides contrary to the wishes of the municipality, it will appeal the matter alleging the Commissioner is unreasonable or arbitrary. State court cases beginning in the late 1970s260 addressed the meaning of the phrase "supervision over aeronautics" in the State Aviation Act to delimit the powers of the Commissioner. Two subsequent acts of the Legislature, the Airport Safety and Zoning Act of 1983 and the New Jersey Airport Safety Act of 1983, having withstood initial challenges to their constitutionality,261 appear to have broadened the discretion and powers of the Commissioner. The regulations promulgated under these Acts seem to widen the scope of his "superintendency" over land use issues affecting airports and aeronautics. However, the Legislature has not favored the Commissioner with a positive mandate respecting aeronautics and, in the absence of this, supervision over aeronautics" has begotten less than "aeronautical progress." Much case law has developed both nationally and in New Jersey, which addresses airport development, and airport operations. In addition to aviation having become, literally, the most regulated industry in history, there is a substantial corpus of statutory and case law dedicated to it. Statutes adopted by the U.S. Congress during the past 30 years have addressed primarily two concerns: developing an interstate airport system and reducing aircraft noise. During that time, the statutes of the New Jersey Legislature have addressed primarily the preservation and improvement of the airport system and have proscribed municipal regulation that is "anti-airport" in purpose or effect. However, these acts have left room for the initiation of much litigation by both individuals and municipalities in New Jersey, implicitly raising the issue of whether the State or the municipality has primary responsibility for airport development. While there is no doubt the State has the primary authority if it so chooses, it has not always been clear that the Legislature wanted the Commissioner of Transportation to exercise that authority. When the Commissioner fails to act so positively as to preempt the field of airport regulation, the authority to do so devolves by virtue of the Municipal Land Use Law to the Municipalities. This devolution can beget not only a delegation of authority but also a change in State policy as most municipalities resist the construction or improvement of an airport. The U.S. Constitution reserves to the States the right to regulate for themselves matters concerning public health, safety and welfare262 that do not conflict with the laws of the United States263 or have the purpose, means or effect of regulating interstate commerce.264 The failure of the federal government to adopt a national airport zoning policy has left the responsibility for this to the States. The federal government will give substantial financial aid for appropriate airport development and improveme nt, but it leaves to each individual state the responsibility to develop zoning policy for its own intrastate air transportation system. As New Jersey and other states have undertaken to develop their air transportation infrastructure, interesting conflicts have arisen. What follows is a brief synopsis of the New Jersey case law, which seems to have generated a number of themes. These cases and themes are more fully set forth and discussed at length in Appendix G. Themes Emerging From New Jersey Case Law Creating a New Airport Prohibited by the Local Zoning Ordinance. In Yoemans v. Hillsborough Township (1947),265 Mr. Yoemans, a landowner, wanted to build an airport. He challenged the reasonableness of a Hillsboro Township zoning ordinance prohibiting airports. The Court ruled that one attacking a zoning ordinance as unreasonable is subject to the presumption that it is reasonable and must bear the burden of establishing the contrary. In Ridgewood Air Club v. Bd. of Adjustment of Ridgewood (1947),266 the Township received an application to build a non-commercial airport for the members of a private association of pilots. In response thereto, Ridgewood quickly amended its zoning ordinance to prohibit airports. The Court found nothing wrong with that and sustained the new ordinance. The conclusion that can be drawn from these cases is that municipalities do indeed have significant discretion - in fact, virtually absolute authority - to defeat plans for a new airport. This authority has been applied similarly in cases where an airport owner makes an application for a new improvement to an existing airport. (See Somerset Air Service, Inc. v. Bedminster Township Planning Board, and Bedminster Township Committee. SOM-L-120-94.) Creating a New Airport When the Zoning Ordinance Is Silent. Absent a prohibition in the local zoning ordinance, is a private airstrip or helistop a lawful accessory use to private property? In Schantz v. Rachlin (1969),267 a farmer obtained a license and built a private airstrip for his single-engine aircraft. His neighbor argued that this was not a valid "accessory" use. The court stated the test is whether the airstrip use is customarily incidental to the principal use. The court sustained the airstrip holding that it was no less an accessory to the primary use of the farm than a swimming pool or a radio tower. In State v. P.T.&L. Construction Company (1978),268 a construction company had constructed a private helistop on the property of its corporate h eadquarters. In determining whether the helistop was a use "customarily incidental to the permitted use," the court stated it was not controlling that a majority or even a substantial percentage of a given type of principal use is not accompanied by the particular accessory use. The court observed that this business practice is increasingly coming into vogue and there is a distinct relationship between the accessory use and the business conducted as the main use of the property. In Oeschle v. Ruhl (1947),269 the defendant had obtained a license to build an airport from the State Aviation Commission. Neighboring landowners sought to enjoin airport construction and operation on the basis of anticipated nuisance and diminution of market value of their land. The Court ruled that airports are not nuisances per se and that anticipated diminution of market value was not grounds for an injunction against construction of a proposed airport facility. Thus notwithstanding approval by the Division of Aeronautics, a private individual or corporation may not establish a private use landing area for fixed-wing aircraft, or a heliport or helistop on its property if an existing local zoning ordinance expressly prohibits that use. However, in the absence of an express prohibition, the courts will likely consider such use to be an appropriate and lawful accessory use. Local Zoning for the Benefit of Aircraft in Flight. The City of Newark adopted a zoning ordinance, which restricted the height of structures in the path of aircraft landing at Newark Airport. The effect was to deprive the land of all value. In Yara Engineering Corp. v. Newark (1945),270 the New Jersey Supreme Court, noting that this ordinance had no foundation in any statute, ruled this was a "taking" and that Newark owed compensation. It is otherwise if a statute establishes a reasonable State wide policy for clear zones. In Patzau v. Dept. of Transportation (1994),271 the facial constitutionality of the Air Safety and Zoning Act of 1983, which established "clear zones" prohibiting building in areas off the end of airport runways, was upheld as a legitimate exercise of the zoning power that did not per se amount to a "taking." Aircraft Operations Affecting Individual Landowners. There have been several cases that examine problems caused to landowners by the flight of aircraft over property adjoining an airport. The US Supreme Court in United States v. Causby (1946),272 which determined that whereas the landowner is no longer deemed to own his land from the center of the earth to the sky, and the air is a public highway as Congress has declared, vibrations caused by frequent over flights of military aircraft at 83 feet constituted a "taking" under the Fifth Amendment. In Griggs v. Allegheny County (1962),273 landowners located immediately adjacent to the airport successfully alleged that the county airport had taken an easement over their land without just compensation. The US Supreme Court laid liability for airport noise and vibrations solely on the airport proprietor, which it charged with a responsibility to acquire sufficient land when building an airport to avoid creating this type of over flight trespass. In Hyde v. Somerset Air Service (1946),274 Mr. Hyde, a private property owner sought to enjoin flight operations from a privately owned public use airport on the ground that frequent aircraft flights 300 feet over his house constituted a nuisance. The Court agreed and flight paths had to be altered. In City of Newark v. Eastern Airlines (1958),275 Newark, Elizabeth, Union, Hillside and Linden sought to restrain flights below 1,200 feet by airlines over densely populated residential portions of their municipalities by claiming trespass. However, the municipalities could not prove how high the aircraft were. The Court ruled that the altitude of aircraft was an essential element in proving trespass and thus, the municipalities were unsuccessful. Municipal Attempts to Regulate Airport Noise. It might seem reasonable for a municipality to attempt to control noise from the airport by exercising its police power. However, because of federal preemption, unless the municipality is also the airport proprietor, it cannot do so. This issue first arose in New Jersey in Parachutes, Inc. v. Lakewood (1973).276 Lakewood, a non-proprietor host municipality adopted an ordinance that limited noise levels to 60 dB in the daytime. This ordinance was designed to close a sport parachute operation at Lakewood airport. The ordinance originally survived a challenge that regulation of aircraft noise was federally preempted. However the ordinance was later declared invalid when the U.S. Supreme Court decided Burbank v. Lockheed Air Terminal (1973).277 In that case, the City of Burbank, in California, adopted an ordinance, which attempted to control noise by setting a curfew on jet operations at an airport that was not owned by the municipality. The Court declared this ordinance invalid on the basis that federal regulation had preempted the field of airport noise. Thereafter, in Township of Hanover v. Morristown (1975),278 a court-sanctioned settlement between the two municipalities which had provided both a curfew and noise abatement flight operations was modified to eliminate these provisions because of the ruling in Burbank. Development of the "Island of Immunity" Doctrine. Morristown's airport is located in Hanover Township and this has generated much litigation between the two municipalities. The following cases follow the development of the "island of immunity" doctrine resulting from some of that litigation. In Aviation Services v. Bd. of Adj. of Hanover Twp. (1956),279 the N.J. Supreme Court examined the limits of a host municipality's ability to zone an airport within its borders but owned by another municipality. It held that Hanover's zoning ordinance was not applicable to the airport owned by Morristown. In Shell Oil Co. v. Bd. of Adj. of Hanover Twp. (1962),280 the Court determined that a gasoline service station permitted by Morristown in its airport zone but prohibited by Hanover's zoning ordinance was not a use "accessorial and incidental to the primary purpose of airport operation" and ruled in favor of Hanover. In the pre-Burbank case of Township of Hanover v. Town of Morristown (1969),281 the holding of the trial court that survives Burbank is the requirement that a non-proprietor host municipality must make reasonable accommodation of existing airport uses. The Appellate Division, in Brody v. City of Millville (1972),282 clarified the holding in Shell Oil stating that if part of the airport lands are leased for purposes unrelated thereto, the use must comply with the zoning ordinance of the municipality of having jurisdiction. Finally, in Town of Morristown v. Township of Hanover (1979),283 the Appellate Division defined the "island of immunity" an airport might enjoy from zoning regulations of the host municipality and held that within that island all uses which are reasonably accessory or incidental are permitted uses. These cases create the framework that protects operative and orderly development of airports from countervailing municipal action. They also help to fill in the gap left by our State Legislature in failing to provide express guidelines in airport zoning matters. In particular, Town of Morristown v. Township of Hanover (1979)284 illustrates that the island of immunity concept extends not only to existing airport uses, but also to reasonable airport expansion for future public needs. However the Court left unanswered the question of what uses are reasonably accessory and incidental. The legislature should prevent a costly and wasteful Morristown IV and simply enact a statute, which provides that a terminal, hangars, aircraft maintenance, testing and storage, aircraft and auto parking, fuel sales, car rentals, rooming accommodations, restaurants, air freight and commercial offices are all permitted uses on the island of the airport zone. Powers of the Commissioner. In Pennsylvania R.R.. Co. v. N.J. State Aviation Commission (1949),285 the N.J. Supreme Court distinguishes the Commission's quasi-judicial administrative function from a "merely ministerial" function and rules that due process requires formal public hearings when ruling on the application of an airport sponsor. In Garden State Farms v. Bay (1978),286 while the Commissioner has the ultimate authority on placement of aeronautical facilities, including private use helistops, that authority must make lawful local interests a material factor in his decision-making. (See also In re Application of Ronson Corporation (1979),287) The Garden State Farms Court was particularly concerned with what it perceived to be the less than "absolutist" nature of the term "supervision of aeronautics," which characterizes the powers of the Commissioner in the State Aviation Act. Although the Airport Safety and Zoning Act of 1983 and the New Jersey Airport Safety Act of 1983, enacted some years after Garden State Farms, appear to have given broader powers to the Commissioner, it is argued here that absent clear guidance from the State Legislature, the N.J. Supreme Court will be reluctant to admit that the Commissioner has unfettered "superintending" power especially in the area of defining reasonable accessory and incidental uses within the airport zone. Federal Statutes Under the Federal Aviation Act of 1958,288 Congress gave the FAA the power to determine which aircraft and engines would be permitted to operate in the U.S.289 Initially, the FAA's interest was in safety rather than noise. The 1968 Amendment to the Federal Aviation Act of 1958290 addressed the noise issue. The FAA was required to develop standards for the measurement of noise, to provide for the control of aircraft noise at its source, and to make noise a factor in assessing whether to permit types of aircraft and aircraft engines to operate in the U.S.291 The 1968 Amendment led to 14 Code of Federal Regulations Part 36 (Part 36), which established procedures and standards of measurement of noise for aircraft and aircraft engines. However, the Rule did not apply to pre-existing aircraft and failed to promote the development of new noise reduction technology.292 The Noise Control Act of 1972 (NCA)293 authorized the Environmental Protection Agency (EPA) to determine the adequacy of the FAA's noise regulations and make recommendations to the FAA. The FAA, however, was free to reject the EPA recommendations if they were not technologically or economically feasible, and the FAA did not implement many of the EPA recommendations.294 The NCA also required the FAA to consult with the EPA prior to issuing any exemptions under FAR 36. If the FAA determined, however, that safety was an overriding concern, it could issue an exemption without consulting the EPA.295 The Aviation Safety and Noise Abatement Act of 1979 (ASNAA)296 was enacted to provide a comprehensive noise abatement program and to help relieve the financial burdens imposed on domestic airlines to meet the Part 36 requirements.297 As a result, the FAA established the Airport Noise Compatibility Planning Program, under FAR Part 150,298 commonly referred to as the "Part 150" program.299 Part 150 encouraged airport owners to prepare Noise Exposure Maps (NEM),300 which are scaled geographic depictions of a particular airport, the measured noise contours emanating from it, and the land use compatibility of real property surrounding the airport. "The main objectives of the Part 150 program are to reduce existing noncompatible uses around an airport and to prevent the introduction of any additional noncompatible uses."301 As an incentive, there was a section which remains in the law today, limiting the recovery of damages for noise for any person who acquires an interest in property after February 18, 1980, in an area surrounding an airport for which a noise exposure map has been submitted, where there is actual or constructive knowledge of the existence of the map, subject to certain exceptions.302 There is, however, a prohibition on using the noise exposure map as evidence in a civil action asking for relief for noise resulting from the operation of an airport.303 Furthermore, the federal government expressly bears no liability for damages from aviation noise304 because of actions taken under its noise compatibility programs.305 The Airport and Airway Improvement Act of 1982 (AAIA)306 created a vehicle to raise and distribute funding for airport improvement projects in all the states. Its provisions are similar to the Interstate Highway program. The federal government will contribute 90% of the funding needed for approved airport improvement projects. AAIA made Part 150 the primary vehicle for obtaining federal grants for noise abatement projects. The Airport Noise and Capacity Act of 1990 (ANCA),307 which left ASNAA intact,308 consisted of two related programs. The first was to establish a national aviation noise policy by limiting the authority of state and local governments to restrict Stage 2 and 3 aircraft (as defined by FAR 36),309 thus militating against inconsistent local regulation. The second was to phase out Stage 2 aircraft after the year 2000.310 ANCA also resulted in the FAA promulgating FAA Part 161,311 Notice and Approval of Airport Noise and Access Restrictions, which requires an airport operator to provide 180 days prior public notice to the effective date of a Stage 2 restriction, seeking both FAA and public comment. Once the procedural notice and comment requirements are met, the proposed restrictions are still open to traditional legal challenges: they must be reasonable, not arbitrary and nondiscriminatory; they must not create an unreasonable burden on interstate or foreign commerce; they must not be inconsistent with maintaining the safe and efficient use of the navigable airspace; they must not conflict with a law or regulation of the U.S.; and they must not create an unreasonable burden on the national aviation system. If the airport proprietor imposes restrictions that do not comply with the foregoing requirements, the airport may lose its ability to receive federal money under Part 471, Airport Development; it may also not impose passenger facility fees under 49 U.S.C.A. º 40117.312 In terms of the airport proprietor's liability, a section of the law provides for the federal government to assume liability for noise damages "only to the extent that a taking has occurred as a direct result of the disapproval" of a proposed noise restriction.313 However, "[i]n spite of ANCA's tighter federal regulation of airport noise restrictions, the FAA noted to Congress that '[there is clearly a vital role for increased State action, such as airport zoning laws."314 SUMMARY The thorough review of the law applicable in New Jersey, set forth in Appendix G, enables one to outline a few basic principles that have evolved over the past 50 years.315 Unfortunately there are still gaps in this law. When an airport improvement is proposed the respective rights of the airport proprietor and the municipality are still not clear. Almost everyone-the municipalities which host and neighbor airports, the airport proprietors, the New Jersey Courts and the federal government-wants the New Jersey Legislature to designate clearer lines of authority for the State's Commissioner of Transportation with respect to airport zoning or land uses on and around the airport. To do so would remove the present confusion within the State system. There is a legal distinction to be made between an "airport proprietor," regardless of whether it is an individual, a municipality, or other governmental entity, and the "host" municipality, in which the airport is located. The ability of a non-proprietor host municipality to exercise its police power to regulate activities at the airport is limited. Under New Jersey law, a non-proprietor municipality, which is host to an existing airport, must make reasonable accommodation for such existing legal uses, while recognizing the importance of protecting and preserving the public interest in air travel. Moreover, each case in which a municipality bars air transportation facilities must be judged on its particular facts to determine if the local action is arbitrary and should be invalidated. A non-proprietor municipality may not adopt any ordinance or regulation which: (a) has the purpose, means or effect of regulating airport noise at its source; (b) excludes uses which are manifestly within the ambit of appropriate primary or accessory uses consonant with an airport's operation; (c) interferes with the operation of aircraft in flight, including takeoff and landing procedures; (d) classifies airports as non-conforming land uses within the context of the municipality's ordinances or master plans of development; (e) has the purpose, means or effect of discriminating against interstate commerce; (f) is preempted by State statute or regulation; or (g) is preempted by federal law or regulation, such as the operation of aircraft in flight. A proprietor municipality, or a private owner of a public use airport, may not regulate: (a) airport noise in any manner that is arbitrary, unreasonable, discriminatory, or contrary to federal regulation (for example, it may not prohibit operations of Stage III aircraft, not Stage II aircraft without appropriate notice; (b) in an area preempted by State statute or regulation; or (c) in an area preempted by federal law or regulation. While municipalities are equal government entities and thus generally enjoy no intergovernmental immunity from one another, the New Jersey Supreme Court has found a legislative intent to immunize acquisition and maintenance of lands and buildings for airport purposes from zoning power. However, there are limits to this immunity. A proprietor municipality of an airport located in whole or in part in another municipality may not engage in a proscribed land use that: (a) is not incidental or necessary for the maintenance and operation of the airport; (b) is beyond the ambit of reasonable present or future public need; or (c) is a wholesale aggrandizement of territory. A proprietor municipality, which transfers its proprietary control of an airport to another entity, for example, the Port Authority of New York and New Jersey, without reservation, may lose its power to impose any restrictions on the airport. The proprietor of an airport is liable for damages from airport noise to affected landowners. However, if the airport proprietor meets the requirements of the 14 C.F.R. Part 150 (Airport Noise Compatibility Planning) program, its liability may be limited. The federal government does not preempt state and local governmental efforts to regulate the location of helistops so long as the local regulation referred to does not directly affect actual aircraft operations. However, the Commissioner of Transportation has the ultimate authority as to placement of aeronautical facilities, subject to consultation with local officials and consideration of local objections. In New Jersey and many jurisdictions, the inability of the courts to detect clear lines of authority has lead to conceptual confusion and inconsistency regarding land use and zoning in regard to airport land. For example, if the placement and design of runways and taxiways is critical to the safety of takeoffs and landings and essential to the efficient management of the surrounding airspace, as the Ninth Circuit has held, municipal attempts to regulate their placement and design are clearly invalid. In 1995, a federal district court in Ohio arrived at an opposite conclusion. However, if flight in the navigable airspace begins when an aircraft starts its engines, then the Ohio court's conclusion is fatally confused and cannot be satisfactorily explained. New Jersey State courts have subjected the municipal zoning regulation of airports to strict scrutiny. However, this leaves the courts to function on an ad hoc basis, which will inevitably lead to inconsistent results, through years of costly litigation. Appendix G covers no fewer than six reported cases concerning Morristown Airport alone. The legal battles continue, especially between privately owned public use airports and host municipalities. As Superior Court Judge Rosenberg observed, in the trial court opinion of Garden State Farms, "[w]hile it may well be that a unified system of laws preempting all land use power for aeronautics would best serve the interests of the people of New Jersey, such a policy decision should be made by the Legislature and not by the court." It falls to the State Legislature to rethink and more clearly define the authority of the Commissioner over land use regulation on and around airport land. The recommendation made here is for a clear legislative statement that enhances the Commissioner's authority and expressly preempts this area from any municipal regulation. A strong, central authority would benefit both airports and the surrounding communities that they serve. The legislative goal should be to eliminate, once and for all, the problems caused by the ambiguous phrase "supervision over aeronautics," used to describe the powers of the Commissioner of Transportation. Another problem arises where the courts are left to guess at intergovernmental immunities between a State agency and a political subdivision inferior to the State, such as a municipality. When Legislative silence leaves the State courts no choice but to divine legislative intent, the courts are left, in effect, with the power to legislate. This is not a power that the courts necessarily desire, but they must interpret the law to apply it properly. While it may be reasonably asserted that the NJDOT regulations preempt local zoning ordinances de facto, that assertion should rely on express preemption language in the positive law, not guesswork. The New Jersey Legislature has made great strides since Garden State Farms, particularly in laws aimed at protecting local residents. For example, the Airport Safety and Zoning Act of 1983, including the law requiring notification to prospective buyers whether the property they wish to purchase is located in an airport zone, is particularly praiseworthy. This notification law should be enhanced to include the ASNAA notice that the noise contour map is on file at the Division of Aeronautics. Recalling that airport litigation tends to be a highly charged emotional confrontation, the State Legislature ought to diffuse confrontation by providing "bright line" statements of authority over well defined zones of land on and around airports, anticipating reasonable, future airport development needs. It must define basic accessory and incidental uses to be permitted within those zones. It should give the Commissioner exclusive authority to decide applications for improvements within those zones. As well as applications for the establishment of a new aeronautical facility. The Legislature should require "fast track" treatment of litigation involving airport zoning questions and provide equal access to justice for airport owners whose ability to defray litigation expenses cannot be compared to the enormous resources available to the municipalities. In doing this it should follow the Federal model of the Equal Access to Justice Act, and require that the municipality pay for the legal costs and expenses, including reasonable attorneys' fees, if the airport owner prevails in the litigation. While the legal aspects of airport zoning are important, they are but one facet of a multifaceted problem. If one was to view the open spaces of airport lands as limited natural resources, the importance of their preservation would become apparent, if only for environmental reasons. The safeguarding of any valuable, limited resource will always be a question of political will. The safeguarding of airport land is no exception. The State Legislature, acting decisively, can arrest the protracted and costly legal battles that exist or will otherwise and inevitably occur, protect a valuable land resource, and ensure that the final elements of a robust intermodal State transportation system-the general aviation airports-will develop and thrive in coherent uniformity. Footnotes: 250 See generally N.J.S.A. 6:1-1 et seq. 251 See Fritzell, D.J., & H.S. Pozycki, Jr., Land Use Law, 36 NEW JERSEY PRACTICE º 1.1 (St. Paul, Minn., West Publishing Co., 1989). 252 NJ Const., art. 4, º 6, 2. 253 NJ Const., art. 4, º 6, 3; N.J.S.A. 40:8-1 et seq. 254 See Yara Engineering Corp. v. Newark, Appendix G, notes 163-168 and accompanying text (Invalidating city ordinance setting height restrictions on properties adjoining Newark Airport). 255 N.J.S.A. 40:42-1 et seq. 256 Frizell & Pozycki, supra note 251 at º 1.1. 257 See Ridgewood Air Club v. Board of Adjustment of Ridgewood, Appendix G, notes 153-162 and accompanying text (sustaining Board of Adjustment's refusal to grant a permit for the use of certain lands as a non-commercial airport); see Yoemans v. Hillsborough Twp., id., notes 123-131 and accompanying text (evidence failed to establish that provision in township zoning ordinance prohibiting an airport in a residential and agricultural zone was unreasonable). 258 See Garden State Farms v. Bay, Appendix G, notes 397-435 and accompanying text. 259 Id. 260 See id. See In re Application of Ronson Corporation, Appendix G, notes 436-442 and accompanying text. 261 See Patzau v. Dept. of Transportation, Appendix G, notes 222-251 and accompanying text. 262 See Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). 263 See U.S. Const. art. VI, cl. 2 (Supremacy Clause). 264 "Negative" reading of U.S. Const. art. I, s. 8 ("dormant" Commerce Clause) 265 See supra note 257. 266 See id.. 267 See id. at notes 281-300 and accompanying text. 268 See id. at notes 301-311 and accompanying text. 269 See Appendix G, notes 132-152 and accompanying text. 270 See supra note 254. 271 See supra note 262. 272 See Appendix G, notes 169-178 and accompanying text. 273 See id. at notes 215-221 and accompanying text. 274 See id. at notes 179-193 and accompanying text. 275 See id. at notes 194-213 and accompanying text. 276 See id. at notes 252-261 and accompanying text. 277 See id. at notes 262-271 and accompanying text. 278 See id. at notes 275-280 and accompanying text. 279 See id. at notes 312-336 and accompanying text. 280 See id. at notes 337-350 and accompanying text. 281 See id. at notes 351-165 and accompanying text 282 See id. at notes 366-371 and accompanying text. 283 See id. at notes 372-383 and accompanying text. 284 See id. 285 See id. at notes 385-396 and accompanying text. 286 See supra note 259. 287 See supra note 261. 288 See former 49 U.S.C.A. ºº 1301-1542 (1976 & Supp. 1994); now codified as amended in 49 U.S.C.A. º 40101 et seq. 289 See J.J. Jenkins, Jr., "The Airport Noise and Capacity Act of 1990: Has Congress Finally Solved The Aircraft Noise Problem?" (1994) 59 J. Air L. & Com. 1023 at 1029. 290 See former 49 U.S.C.A. º 1431 (1976 & Supp. 1994); now codified as amended in 49 U.S.C.A. º 44715. 291 See Jenkins, Appendix G, note 289 at 1031. 292 Id. at 1032. 293 See former 49 U.S.C. º 1431 (1976 & Supp. 1994); now codified as amended in 49 U.S.C.A. º 44715. 294 See Jenkins, supra note 289 at 1033. 295 See id. at 1033-1034. 296 See former 49 U.S.C. app. ºº 2101-2125 (Supp. 1994). 297 See Jenkins, supra note 289 at 1034. 298 See 14 C.F.R. º150.1 et seq. (1997). 299 See Comment, "Federal and State Coordination: Aviation Noise Policy and Regulation" (1994) 46 Admin. L. Rev. 413 at 415-416. 300 See 14 C.F.R. º 150.21. 301 See Comment, "Federal and State Coordination: Aviation Noise Policy and Regulation" (1994) 46 Admin. L. Rev. 413 at 416. 302 See Appendix G, note 69. 303 See Appendix G, note 70. 304 See 49 U.S.C.A. º 47504(d). 305 See 49 U.S.C.A. º 47504. 306 See former 49 U.S.C.A. app. ºº 2201-2227 (1988 & Supp. IV 1992). 307 See former 49 U.S.C.A. ºº 2151-2158 (Supp. IV 1992); now codified as amended in 49 U.S.C.A. ºº 47521-47533. 308 See former 49 U.S.C.A. º 2153 (h) (Supp. IV 1992); now codified as amended in 49 U.S.C.A. º 47533. 309 See Jenkins, supra note 289 at 1037-1038. 310 Presently, any waiver granted under the Act cannot extend operation of Stage 2 aircraft beyond December 31, 2003. See 49 U.S.C.A. º 47528(b)(3). 311 See 14 C.F.R. º 161.1 et seq.; see Comment, supra note 299 at 418. 312 See 49 U.S.C.A. º 47526. 313 49 U.S.C.A. º 47528. The U.S. Court of claims is expressly given exclusive jurisdiction in this matter. 314 See Appendix G, note 82. 315 For a fully annotated version of this section, see Appendix G, notes 443-479 and accompanying text.