Opinion
DOCKET NO. A-3414-12T1 DOCKET NO. A-4243-13T1
08-07-2015
AHS HOSPITAL CORP., Plaintiff-Appellant, v. BOARD OF ADJUSTMENT OF THE CITY OF SUMMIT and CITY OF SUMMIT, a municipal corporation of the State of New Jersey, Defendants-Respondents, and CITIZENS AGAINST THE HELIPAD, an unincorporated association, ANDREW and CHRISTINE GOTTESMAN, KELLY DEERE and LEE SHAVEL, DONNA and JEFFREY MILLER, HANS and TINA MIKKELSEN, and PETER and DEBORAH GRAHAM, Intervenors-Respondents. IN THE MATTER OF: APPLICATION OF ATLANTIC HEALTH SYSTEM INC. FOR A LICENSE TO ESTABLISH A RESTRICTED USE HELISTOP AT OVERLOOK MEDICAL CENTER, 99 BEAUVOIR AVENUE, CITY OF SUMMIT, UNION COUNTY, NJ
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-0448-11 (A-3414-12) and the New Jersey Department of Transportation, Division of Aeronautics (A-4243-13). Bartholomew A. Sheehan, Jr. argued the cause for appellant in A-3414-12 (McCarter & English, LLP, and Dempsey, Dempsey and Sheehan, attorneys; Gary T. Hall, of counsel and on the brief). Dennis M. Galvin argued the cause for respondent Board of Adjustment of the City of Summit in A-3414-12 (The Galvin Law Firm, attorneys; Mr. Galvin, on the brief). Michael B. Kates and Kelly J. Deere argued the cause for respondents Citizens Against the Helipad in A-3414-12 (Kates, Nussman, Rapone, Ellis & Farhi, LLP, attorneys; Mr. Kates and Ms. Deere, on the brief). Respondent City of Summit had not filed a brief in A-3414-12. McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys for appellant City of Summit in A-4243-13 (Thomas P. Scrivo, of counsel and on the brief; Robert L. Ghelli and Jennifer M. Lahm, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Department of Transportation in A-4243-13 (Melissa H. Raksa, Assistant Attorney General, of counsel; Nicole T. Minutoli, Deputy Attorney General, on the brief). John J. McNamara, attorney for respondent Atlantic Health System, Inc. in A-4243-13. Edward Purcell, Associate Counsel, attorney for amicus curiae New Jersey State League of Municipalities in A-4243-13.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano, Ostrer and Hayden. On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-0448-11 (A-3414-12) and the New Jersey Department of Transportation, Division of Aeronautics (A-4243-13). Bartholomew A. Sheehan, Jr. argued the cause for appellant in A-3414-12 (McCarter & English, LLP, and Dempsey, Dempsey and Sheehan, attorneys; Gary T. Hall, of counsel and on the brief). Dennis M. Galvin argued the cause for respondent Board of Adjustment of the City of Summit in A-3414-12 (The Galvin Law Firm, attorneys; Mr. Galvin, on the brief). Michael B. Kates and Kelly J. Deere argued the cause for respondents Citizens Against the Helipad in A-3414-12 (Kates, Nussman, Rapone, Ellis & Farhi, LLP, attorneys; Mr. Kates and Ms. Deere, on the brief). Respondent City of Summit had not filed a brief in A-3414-12. McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys for appellant City of Summit in A-4243-13 (Thomas P. Scrivo, of counsel and on the brief; Robert L. Ghelli and Jennifer M. Lahm, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Department of Transportation in A-4243-13 (Melissa H. Raksa, Assistant Attorney General, of counsel; Nicole T. Minutoli, Deputy Attorney General, on the brief). John J. McNamara, attorney for respondent Atlantic Health System, Inc. in A-4243-13. Edward Purcell, Associate Counsel, attorney for amicus curiae New Jersey State League of Municipalities in A-4243-13. PER CURIAM
We have consolidated these appeals for the purpose of issuing a single opinion. In A-3414-12, plaintiff AHS Hospital Corp. (AHS) appeals from the Law Division's order dismissing its complaint in lieu of prerogative writs against defendant Board of Adjustment of the City of Summit (the Board). Judge Karen M. Cassidy, A.J.S.C., concluded that the Board's denial of AHS's development application to construct a helipad atop Overlook Hospital (Overlook) was not arbitrary, capricious or unreasonable. Citizens Against the Helipad, an unincorporated association, Andrew and Christine Gottesman, Kelly Deere and Lee Shavel, Donna and Jeffrey Miller, Hans and Tina Mikkelsen, and Peter and Deborah Graham (collectively, Intervenors) intervened in the Law Division and have appeared as respondents in this appeal.
The complaint also named the City of Summit (Summit) as a defendant, however, Summit was dismissed by consent prior to the final order being entered and has not appeared as a party to this appeal.
Although it did not obtain local approval, AHS submitted an application to the Department of Transportation (DOT) seeking a restricted-use license for the helipad. In its final administrative action, DOT approved AHS's application subject to certain conditions. In A-4243-13, Summit appeals DOT's decision, and, together with the New Jersey League of Municipalities (the League), which we permitted to appear as amicus curiae in the appeal, urges us to reverse. AHS and DOT urge us to affirm.
Recently, we held "that while [] 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." Twp. of Fairfield v. State, 440 N.J. Super. 310, 320 (App. Div.) (quoting Tanis v. Twp. of Hampton, 306 N.J. Super. 588, 599 (App. Div. 1997) (in turn quoting N.J.A.C. 16:54-1.1(b))), certif. denied (July 20, 2015). "[I]n the absence of a '"clear showing" that [DOT's decision] is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record,'" it should be affirmed. Id. at 318 (quoting Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1, 9 (2009)).
Having now considered the record in both appeals, we affirm DOT's decision in A-4243-13. We dismiss AHS's appeal in A-3414-12 as moot.
I.
In 2009, AHS, a non-profit healthcare system which operates a number of facilities including Overlook, filed an application with the Board for preliminary and final site plan approval, as well as a use variance and related bulk and height variances, to construct a proposed helipad on the roof of the hospital. Overlook is comprised of a campus of approximately twenty-five acres, and the hospital was a permitted use in Summit's Professional-Institutional Zone, which also included a small number of residences.
AHS did not initially apply for a use variance under N.J.S.A. 40:55D-70(d)(1), arguing instead that the helipad was a permitted accessory use to the hospital. The Board rejected that assertion in a unanimous vote before considering whether to grant AHS a use variance.
AHS also operates Morristown Memorial Hospital which, like Overlook, is a designated comprehensive stroke center pursuant to the Stroke Center Act of 2004, N.J.S.A. 26:2H-12.30. Morristown Memorial also serves as a regional trauma center pursuant to N.J.S.A. 26:2K-35. Although both hospitals serve stroke patients, those requiring special care are directed to Overlook.
The hearings before the Board spanned eighteen sessions. AHS agreed to certain conditions if its application were approved. To ameliorate potential concerns for the impact of the helipad on nearby residences, AHS agreed, among other things, that Overlook would not seek designation as a trauma center, it would limit its helipad use to air transport of patients, and it would follow certain flight path and operational procedures.
In a four-three vote, the Board "took a conservative approach," and concluded that the helipad was an "inherently beneficial use," see N.J.S.A. 40:55D-70(d), because the application met the three-prong test we enunciated in Medical Center at Princeton v. Township of Princeton Zoning Board of Adjustment, 343 N.J. Super. 177, 185 (App. Div. 2001). The Board then applied the balancing test required whenever considering variance applications for inherently beneficial uses.
When striking the balance, boards must: (1) "identify the public interest at stake," recognizing that "[s]ome uses are more compelling than others"; (2) "identify the detrimental effect that will ensue from the grant of the variance"; (3) determine whether the detrimental effect can be mitigated by imposing reasonable conditions on the use; and (4) "then weigh the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good."The Board denied AHS's application in its entirety and memorialized its action in a resolution on December 6, 2010. AHS subsequently filed its complaint in lieu of prerogative writs.
[Id. at 200 (quoting Sica v. Bd. of Adj. of Twp. of Wall, 127 N.J. 152, 165-66 (1992)).]
During extensive oral argument before Judge Cassidy, among other things, the Board and Intervenors argued that none of the conditions to which AHS agreed, and which might mitigate detrimental impacts of the helipad, were enforceable, because Federal or State law pre-empted the Board's and Summit's enforcement powers. In a comprehensive and thoughtful written opinion, Judge Cassidy concluded that although AHS had
provided . . . arguments that are compelling[,] . . . the issue of the enforceability of conditions if the variance were to be granted are problematic. . . . [I]t appears that many of the proposed conditions, which would indeed mitigate the concerns of [Summit] and [Intervenors], are not enforceable. Should the variance have been granted, it is apparent that the legitimate health and safety concerns that were proven at the hearing could not legitimately be enforced through conditions. . . . [T]he Board took that into account, as well as weighing the evidence and case law that applies in this situation and passed an appropriate resolution. . . . [T]he Board's findings were not arbitrary, capricious or unreasonable.The judge entered the February 14, 2013 order under review in A-3414-12.
While AHS's appeal was pending, in November 2013, it filed an application with DOT for a restricted-use helistop license. As part of the application package, AHS was required to furnish a "[c]opy of the final determination from the appropriate planning authority having jurisdiction." AHS included the Board's forty-five page resolution denying its development application, as well as a letter from the County of Union indicating AHS's development application was "exempt from County review and approval." AHS published notice of its pending application as required by regulation, and DOT received a total of 116 comments, forty-one in support and seventy-five in opposition.
Summit submitted opposition through its counsel. Noting that DOT was required by N.J.A.C. 16:54-2.5(a) to consider "local factors" in deciding whether to grant the license, Summit argued that the Board had "spent a full year analyzing the[] issues" and denied AHS's development application. Summit asked that DOT "give[] careful consideration" to the Board's decision and deny AHS's request for a license.
On April 28, 2014, DOT notified AHS that it had approved the application. A license, designated as "Helistop-Restricted Use-VFR Day/Night Operations," would issue, subject to "the following restrictions":
1. Air Ambulance Operations Use OnlySummit filed a timely notice of appeal, and on July 9, 2014, DOT, through the Director of its Division of Multimodal Services (the Director), filed a statement of reasons for its decision. See R. 2:5-1(b).
2. Approach/Departure Paths shall follow documented routes whenever possible to minimize any environmental impact providing it does not decrease flight safety
3. Design Helicopter — Augusta Westland AW139
II.
As the Court explained nearly forty years ago,
[T]he dominant legislative intent in the Aviation Act [N. J.S.A. 6:1-1 to -62] is to repose in the Commissioner of Transportation the ultimate authority as to the placement of aeronautical facilities, [] predicated upon the mandate that the Commissioner shall "supervise" and "regulate" aeronautics in general and the "establishment, location . . . size [and] design . . . of heliports and helistops" in particular[.] . . . [W]hile municipalities, consistent with the broad statutory purposes of zoning, N.J.S.A. 40:55D-2, may pass ordinances fixing particular land areas for airports or heliports, or even ban them altogether, 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, or the final decision of the Commissioner.Nevertheless, DOT must "pay due attention to the lawful zoning expressions of local governments and not act 'in an unreasonable fashion so as to arbitrarily override all important legitimate local interests.'" Id. at 455 (quoting Rutgers v. Piluso, 60 N.J. 142, 153 (1972)). DOT's regulations reflect this guidance by requiring an applicant for a license to provide any adverse decision by a local land use board, N.J.A.C. 16:54-2.1(a)(6)(iii). Further, DOT's regulations provide
[Garden State Farms, Inc. v. Bay, 77 N.J. 439, 454 (1978) (citations omitted) (quoting N.J.S.A. 6:1-29 (alterations in original)).]
[a]ll applications for aeronautical facility licenses shall be processed . . . to determine whether the issuance of such license would be consistent with public health, safety and welfare, and the development of aeronautics in the State. In making its determination, [DOT] will consider aviation development, surrounding land uses, local land use ordinances, topography, noise characteristics of the types of aircraft to be used, air traffic patterns proposed to be used, air operational demand, aircraft movement operations, capacity of nearby aeronautical facilities, economic factors, and any other factors deemed relevant by [DOT].In its statement of reasons, DOT indicated that it had evaluated AHS's application by considering the criteria in the Regulation and the "comments and concerns voiced by members of the community." DOT also asserted that the application was reviewed using "a standard matrix as a guide."
[N. J.A.C. 16:54-2.5(a) (the Regulation) (emphasis added).]
The agency concluded that the helistop would "have a positive effect on aviation development and a neutral effect on existing air traffic patterns." It stated that "increasing air access to medical services must be considered an improvement" in a "growing state" such as New Jersey, where "the capacity for air ambulance services must grow as well." DOT determined that there would be "no interference" with existing air patterns at nearby Newark Liberty Airport, citing, in particular, a Federal Aviation Administration conclusion from 2009, that the proposed helistop would not interfere with airport traffic. Citing statistics regarding the safety of helicopter emergency medical services (HEMS), DOT concluded that "the safety record of the HEMS industry in New Jersey is exemplary compared to its record nationally." It determined the "danger created by the helistop is minimal."
DOT addressed the "surrounding land uses, local land use ordinances, topography, [and] noise characteristics" involved. N.J.A.C. 16:54-2.5(a). Noting that "[t]he noise generated by the helistop was a primary concern" of its opponents, DOT referenced a noise study that had been submitted to the Board by AHS during the hearings. DOT found the "noise impact is only mildly negative" and the approach and departure paths selected would "minimize the noise exposure over the residential areas." DOT considered that construction of the helistop would add an additional floor to Overlook's existing eleven-story building, but noted that while this would "exacerbate [Overlook's] existing non-conformance to height ordinances," no "functional impact on the surrounding properties" would result. DOT determined the "topography" of the site would have a "positive impact" on "flight operations."
Noting that presently helicopters bringing patients to Overlook had to land elsewhere and ambulances were required to complete the transfer, DOT determined that the treatment of stroke patients was time-sensitive and the need would be better served by an on-site helistop. It also concluded that although the estimated number of monthly transfers was low, between five and nine patients, "the value of the trip to those . . . patients [was] immeasurable." Considering all these factors, DOT determined that great weight should be accorded to the regulation's "air operational demand and the capacity of nearby facilities" factors. Finally, DOT determined that after "taking into account local sentiment," it was appropriate to "add[] restrictions" to the license, and did so.
III.
We begin by recognizing that our review of "an agency's determination is limited in scope." Circus Liquors, supra, 199 N.J. at 9 (citation omitted). Our inquiry is limited to
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching"Without a 'clear showing' that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record, an administrative agency's final quasi-judicial decision should be sustained, regardless of whether a reviewing court would have reached a different conclusion in the first instance." Circus Liquors, supra, 199 N.J. at 9 (citation omitted).
a conclusion that could not reasonably have been made on a showing of the relevant factors.
[Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).]
Although we are not bound by an agency's legal conclusions, we nonetheless generally defer to the agency's interpretation of its own regulations and authorizing statutes. Utley v. Bd. of Review, 194 N.J. 534, 551 (2008). "An agency's interpretation of its own rule is owed considerable deference because the agency that drafted and promulgated the rule should know the meaning of that rule." N.J. Healthcare Coal. v. N.J. Dep't of Banking & Ins., 440 N.J. Super. 129, 135 (App. Div.) (quoting In re Freshwater Wetlands Gen. Permit No. 16, 379 N.J. Super. 331, 341-42 (App. Div. 2005)), certif. denied (June 30, 2015). With these general principles in mind, we turn to the arguments raised on appeal.
Summit and the League (hereafter, appellants) contend that DOT's use of a "matrix" violated the rulemaking requirements of the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -15 (APA). Appellants also contend that DOT acted "arbitrarily, capriciously and unreasonably" in denying a hearing on the application and in applying the standards contained in N.J.A.C. 16:54-2.5(a). Summit also contends that DOT's decision effectively violates N.J.S.A. 40:42-4, a provision of the Home Rule Act which provides that the Act's provisions should be construed "most favorably to municipalities, it being the intention to give all municipalities . . . the fullest and most complete powers possible over the internal affairs of such municipalities for local self-government." We consider these claims seriatim.
A.
The record contains copies of the so-called "matrix" used by two of DOT's aeronautical operations specialists in evaluating AHS's license application. After determining the application is complete and the Commissioner did not order a public hearing or informational meeting, the evaluators determine whether "the applicant [has] sufficiently demonstrated that public health, safety and welfare will not be substantially affected by the issuance" of the license. See N.J.A.C. 16:54-2.5(a).
If the application meets this threshold, as it did here, the evaluators proceed to assign values between zero and five to the ten items listed in the Regulation, as well as a catch-all "other" category, with zero signifying "the most impact and/or least favorable for development." Each regulatory item is assigned a fixed weight, ranging from one to three, and the product of the rating and fixed weight is calculated. The sum of those calculations is the applicant's score. Notably, the only regulatory items given the greatest multiplier weight of three are "surrounding land uses," "local muni[cipal] determination" and "noise characteristics."
The "matrix" uses the phrase "local municipal determination" instead of the Regulation's language, i.e., "local land use ordinances."
In this case, the acting manager of DOT's Division of Aeronautics (the Division) reviewed the two scoring sheets which, despite differences in values assigned to the regulatory categories, reached the same total score of fifty-three. The manager's written determination sheet explained that if the average of the two evaluators exceeded fifty points, the "proposed facility should be recommended for approval." On the other hand, if the score fell below the recommended approval number, the license may be issued only for "special circumstance[s]."
The actual scores and calculation on the two evaluations were:
| Factor | Mult | Eval 1 | Eval 2 | ||
| Score | Total | Score | Total | ||
| Aviation development | 2 | 2 | 4 | 2 | 4 |
| Surrounding land uses | 3 | 2 | 6 | 2 | 6 |
| Local muni determination | 3 | 1 | 3 | 3 | 6 |
| Topography | 2 | 3 | 6 | 4 | 8 |
| Noise characteristics | 3 | 2 | 6 | 2 | 6 |
| Air traffic patterns | 2 | 3 | 6 | 2 | 4 |
| Air operational demand | 1 | 5 | 5 | 3 | 3 |
| Aircraft movement ops. | 1 | 5 | 5 | 5 | 5 |
| Capacity of nearby aero fac. | 2 | 4 | 8 | 4 | 8 |
| Economic Factors | 1 | 4 | 4 | 3 | 3 |
| Total | 53 | 53 |
The determination explained that if the evaluators assigned a value to "other," the average needed to be 52.5 for a favorable recommendation.
"The APA defines an administrative rule as an [agency's] 'statement of general applicability and continuing effect that implements or interprets law or policy, or describes the organization, procedure or practice requirements' of the agency." In re Authorization For Freshwater Wetlands Statewide Gen. Permit 6, 433 N.J. Super. 385, 413 (App. Div. 2013) (quoting N.J.S.A. 52:14B-2(e)). In the seminal case of Metromedia, Inc. v. Director, Division of Taxation, 97 N.J. 313 (1984), the Court said, "[a]n agency determination that is intended to be applied as a general standard and with widespread coverage and continuing effect can also be considered an administrative rule if it is not otherwise expressly authorized by or obviously inferable from the specific language of the enabling statute." Id. at 329 (emphasis added). The Court further said:
[A]n agency determination must be considered an administrative rule when all or most of the relevant features of administrative rules are present and preponderate in favor of the rule-making process. Such a conclusion would be warranted if it appears that the agency determination, in many or most of the following circumstances, (1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy. These relevant factors can,"The pertinent evaluation focuses on the importance and weight of each factor, and is not based on a quantitative compilation of the number of factors which weigh for or against labeling the agency determination as a rule." In re Provision of Basic Generation Serv., 205 N.J. 339, 350 (2011). If "the . . . agency determination constitute[s] a rule, . . . its adoption require[s] compliance with [the] statutory rule-making procedures" of the APA. Metromedia, supra, 97 N.J. at 334.
either singly or in combination, determine in a given case whether the essential agency action must be rendered through rule-making or adjudication.
[Id. at 331-32.]
We have not shied away from invalidating standardized agency documents as violations of the APA's rulemaking requirement. See In re Freshwater Wetlands, supra, 433 N.J. Super. at 408-16 (invalidating the Department of Environmental Protection's (DEP) "Nonstructural Strategies Points System" (NSPS) and "User Guide"); In re Highlands Master Plan, 421 N.J. Super. 614, 629-33 (App. Div. 2011) (invalidating a "[g]uidance document" promulgated by the Council on Affordable Housing (COAH) that provided formulas for municipalities to calculate "growth projections" that effectively lowered COAH's regulatory requirements); In re Adoption of Reg'l Affordable Hous. Dev. Program Guidelines, 418 N.J. Super. 387, 391-95 (App. Div. 2011) (invalidating COAH "[g]uidelines" designed to implement legislative changes permitting for regional planning of affordable housing). However, in this case, the use of the "matrix" is qualitatively different.
DOT's document is entitled "Evaluation Ranking." We acknowledge that it implicates several of the Metromedia factors. For example, it is "intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group[,] [] is . . . applied generally and uniformly to all similarly situated persons[,] [and] is designed to operate only . . . prospectively." Metromedia, supra, 97 N.J. at 331. However, we agree with DOT that the document does not implicate the last three Metromedia factors.
The document is an evaluative tool. It does not "prescribe[] a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization." Ibid. The Aviation Act's expressed purpose "is to provide in the interest of public safety and of aeronautic progress for the regulation of aeronautics." N.J.S.A. 6:1-20. The Act provides for the promulgation of regulations to effectuate the purposes. N.J.S.A. 6:1-29. The Aviation Act has been interpreted as requiring consideration of local zoning ordinances. Garden State Farms, supra, 77 N.J. at 454-55. The document directly addresses those two overriding legislative goals.
The document does not "reflect[] an administrative policy that [] was not previously expressed in any official and explicit agency determination, adjudication or rule." Metromedia, supra, 97 N.J. at 331. To the contrary, the individual categories used to evaluate the application are the precise categories delineated in N.J.A.C. 16:54-2.5(a). Lastly, the document does not "reflect[] a decision on administrative regulatory policy in the nature of the interpretation of law or general policy." Metromedia, supra, 97 N.J. at 331-32. True enough, once a particular numerical evaluation is reached, the application is recommended for approval. But the document permits applications that do not receive the requisite evaluation to still be considered for approval. More importantly, as demonstrated by the statement of reasons provided by DOT, the Director carefully considered whether the numerical rankings provided in each category were sustainable on the record evidence provided.
DOT's use of the ranking document is unlike those agency documents and procedures that we invalidated in the cases cited above. In both In re Highlands Master Plan, 421 N.J. Super. at 629-33, and In re Adoption of Regional Affordable Housing Development Program Guidelines, 418 N.J. Super. at 391-95, the agency was effectively changing the legislative standards.
Closer to this case, but we think distinguishable, was DEP's use of its NSPS assessment tool. In re Freshwater Wetlands, supra, 433 N.J. Super. at 410. There, DEP circulated and used an Excel spreadsheet to measure whether an applicant had complied with a specific regulatory requirement that its design incorporate, to the "maximum extent practicable," nonstructural stormwater management strategies. Id. at 409-411. However, in publicly announcing its use of NSPS, DEP advised that if an applicant's spreadsheet score was sufficient, "no further proof of compliance with the maximum extent practicable requirement [would] be required." Id. at 412.
We concluded the use of the NSPS in conjunction with the User Guide met all six of the Metromedia criteria. Id. at 415. In particular, in addressing the last three Metromedia factors, we noted that DEP had adopted a system "not otherwise expressly provided by or obviously inferable from the Department's stormwater management rules or from any statute or other regulation[,]" that constituted "a material and significant change from what applicants are required to submit . . . under [the regulations]," and "represent[ed] a significant change from the Department's own [position] at the time it adopted the regulation[.]" Ibid.; see also In re Hosps.' Petitions for Adjustment of Rates, 383 N.J. Super. 219, 247 (App. Div.) (citations omitted) ("An agency may not use its power to interpret its own regulations as a means of amending those regulations or adopting new regulations."), certif. denied, 187 N.J. 81-82 (2006).
As already noted, DOT's evaluation ranking document in this case was truly an assessment tool that took into account all of the Regulation's relevant factors that, in turn, reflect the overriding legislative purposes of the Aviation Act. Ironically, the system employed by DOT actually provides significant weight to the concerns expressed by local municipalities, the alleged absence of which is at the heart of Summit's and the League's substantive arguments on appeal.
The rankings were completed by two evaluators who assigned different values to the regulatory factors. While a total score determined whether the application would be recommended for approval or not, it is clear from DOT's statement of reasons that the Director conducted an individualized review of the record to determine whether the evidence in the application, the record before the Board and the comments received supported the recommendation or not. We reject Summit's and the League's argument that the use of the evaluation ranking document violated Metromedia's prohibition of de facto rulemaking.
B.
We consider the argument that DOT acted in an arbitrary, capricious or unreasonable manner by making its decision without holding a hearing. In its statement of reasons, DOT concluded that the licensure application was not a "contested case" under the APA, which regulations provide that contested cases are not intended to "provide a forum for the expression of public sentiment on proposed agency action." N.J.A.C. 1:1-2.1. DOT also noted that there were no material facts in dispute and "the issues were clearly framed and developed" by the record and the submissions of counsel.
The APA defines a "contested case" as a
proceeding, including any licensing proceeding, in which the legal rights, duties, obligations, privileges, benefits or other legal relations of specific parties are required by constitutional right or by statute to be determined by an agency by decisions, determinations, or orders, addressed to them or disposing of their interests, after opportunity for an agency hearing.Appellants argue that a hearing is required under the Aviation Act, specifically, N.J.S.A. 6:1-31, which provides that "[i]t shall be the duty of the commission to hold public hearings on matters affecting aeronautics." We acknowledge that in construing this provision nearly seventy years ago, the Court said that a hearing was necessary when considering an airport license given an airport's "vital[] relat[ion] to the public health and safety." Pa. R.R. Co. v. N.J. State Aviation Comm'n, 2 N.J. 64, 68-72 (1949); see also Trenton Aviation, Inc. v. Gerard, 113 N.J. Super. 253, 256-58 (App. Div.) (extending the hearing requirement to a license for a "fixed base operator"), certif. denied, 58 N.J. 331 (1971).
[N. J.A.C. 1:1-2.1 (citing N.J.S.A. 52:14B-2.)]
The commission is the "state aviation commission." See N.J.S.A. 6:1-2. Subsequent legislation transferred all Title Six "functions, powers and duties" to DOT. N.J.S.A. 27:1A-3.
However, without detailing significant changes made to the Aviation Act since 1949, the passage of the APA in 1968 must inform our analysis. In Township of Fairfield, supra, we specifically rejected the municipality's claim that a hearing was required because the licensing application was a "'contested case.'" 440 N.J. Super. at 321 (quoting N.J.S.A. 52:14B-2(b)). As we said there, considering both due process claims and existing DOT regulations, "a hearing is neither automatic nor mandatory in all cases." Id. at 322; see N.J.A.C. 16:54-2.4(a) (vesting the Commissioner with the discretion to hold a hearing or informational meeting).
Appellants have not raised a facial challenge to the validity of DOT's regulation. We have held in similar circumstances that absent a statute that specifically grants a hearing to an objector in a licensing procedure, the objector must possess more than a generalized property right shared with others in order to establish a right to a hearing as a contested case. In re Amico/Tunnel Carwash, 371 N.J. Super. 199, 211-12 (App. Div. 2004).
We also disagree with the League's assertion that even if not required by statute, DOT acted arbitrarily and capriciously in this particular case because there were material disputed facts that were disclosed during the Board's hearings. While we do not necessarily ascribe to DOT's characterization of the record — "no material facts in dispute" and "no credibility issues" presented — it is beyond peradventure that the numerous sessions before the Board gave a complete picture of the benefits of the proposed license and the alleged detrimental effects the helistop would have on the local interests of Summit and its residents. Under the circumstances presented, and giving deference to DOT's interpretation of its own regulations, we cannot conclude that the denial of a hearing was arbitrary, capricious or unreasonable.
C.
Appellants argue that DOT's application of its own regulatory factors was arbitrary, capricious and unreasonable and in violation of Garden State Farms, supra, 77 N.J. 439. The argument lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E).
Although it takes issue with DOT's findings and conclusions regarding a number of factors in the Regulation, in reality, the crux of Summit's argument is that DOT simply did not give enough consideration to local interests in granting the license. Given the extensive record DOT reviewed which adequately expressed those concerns, we do not arrive at the same conclusion. Moreover, as the record before the Board reflects and as Judge Cassidy aptly discussed, AHS presented substantial evidence regarding the benefits that the helistop would provide to its patients. We will not second guess DOT's factual conclusions regarding that evidence and the significance the agency attached to it in reaching its decision to grant the license.
D.
Lastly, we consider Summit's claim that DOT's decision improperly clashes with the city's right to govern itself as reflected by N.J.S.A. 40:42-4. We again disagree.
As we understand the argument, Summit contends that Garden State Farms, supra, does not permit DOT to essentially override a local municipality's decision to deny required variances to an aeronautic facility. See 77 N.J. at 455-56. Although we did not specifically address N.J.S.A. 40:42-4 in our decision in Township of Fairfield, supra, we made clear that DOT possessed "sufficient statutory authority 'to override local zoning decisions.'" 440 N.J. Super. at 320 (quoting Tanis, supra, 306 N.J. Super. at 600).
Summit contends that our unpublished opinion in In re Trump National Golf Club Colts Neck, L.L.C., No. A-3966-11 (App. Div. Dec. 12, 2012), was a "novel and arguably extreme view" of Garden State Farms' holding. Our subsequent decision in Township of Fairfield, supra, had not been published prior to the briefs being filed in this case. --------
In our opinion, Garden State Farms compels only that DOT "listen to the municipality's opposition." Id. at 324 (Fisher, P.J.A.D., concurring). There is ample proof in this record that DOT did so in this case.
We affirm in A-4243-13. As a result, and as AHS conceded during argument, the appeal in A-3414-12 is moot. We therefore dismiss the appeal. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION