N.J. Medevac Base in Bedminster Tests Airport's Authority

Everybody wants a rescue helicopter when they need one, but nobody, it seems, wants one near his or her backyard.

At least not in Bedminster, home of Somerset Airport, where the state last year relocated the State Police Medevac Unit and its fleet of Northstar helicopters.

A half-dozen suits have been lodged since then, along with administrative actions, all of them testing the limits of municipalities' authority over airports within their borders.

Foes of the move range from the prominent - Forbes magazine editor-in-chief Steve Forbes and former Lucent chief executive officer Richard McGinn - to neighbors charging that the helicopter operation violates local zoning laws and seeking to abate airport noise.

Bedminster itself is a party. Its zoning officer determined such uses are counter to municipal code and ordered the township planning board to review Northstar-related airport renovations.

Somerset Airport owner Dan Walker in turn sued the township, winning an April 4 Superior Court ruling that the helicopter use and medevac operations are permitted airport uses under the New Jersey Aviation Act, N.J.S.A. 6:1-1 et seq.

Superior Court Judge Robert Reed also enjoined the township against interference with the medevac operations until the case is resolved.

Forbes and another neighbor, Phoebe Wesley, filed motions to intervene in that case, as did the Bedminster Branchburg Bridgewater Concerned Citizens Coalition. The coalition will appeal, says its lawyer, Alan Harwick.

On April 7, Reed dismissed the coalition's separate suit seeking a declaratory judgment that helicopters are not a permitted use at Somerset Airport under township ordinances. Reed found the Aviation Act and its administrative code preclude local zoning laws that differentiate between types of aircraft.

Superior Court Judge Peter Buchsbaum last month dismissed yet another suit by the coalition, charging the township improperly issued a permit for a Northstar staff office trailer at the airport.

Two more suits by the coalition are pending, one charging improper granting of permits for a new septic system and another claiming state laws require Northstar to be based at a hospital.

A separate suit against the airport, filed by former Lucent CEO McGinn, does not object to Northstar but focuses on aircraft noise in general.

Forbes and his wife, Sabina, have no quarrel with the arrival of Northstar but want to ensure that Bedminster's authority, to the extent it is binding by law, is respected by the airport, says their attorney, Richard Sasso, a Warren solo.

While federal and state governments generally have jurisdiction over airports, municipalities are left with limited governance of small, private airports, and the Somerset Airport litigation shows that the lines of authority aren't always clear.

The state Supreme Court sought to clarify the interplay between state and local control in Garden State Farms v. Bay , 77 N.J. 439 (1978), which says the state has ultimate jurisdiction over airports but must give due consideration to local regulations.

How much consideration is due is the point of contention.

The airport's lawyer, Lebanon solo William Mennen IV, says, "The law is very clear that authority over aviation in New Jersey rests with the commissioner [of the Department of Transportation] and no local action can conflict with that. The opposition has, I think, attempted to obfuscate those lines of authority."

Coalition lawyer Harwick says Reed's rulings have erred too far on the side of state authority. "It's our feeling that this just goes too far. It takes away from the local land use boards any review of the use of the facility," says Harwick, of Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Lisowski in Livingston.

Harwick, who lives near the airport, says Reed should have developed a more extensive record. While Somerset Airport has been in business since 1949 and is used by other helicopters, the arrival of Northstar has aroused controversy because of its exceptional noise and its tendency to fly low over nearby homes, he says.

State officials say Northstar was relocated from the University of Medicine and Dentistry in Newark in response to rising demand for its services in semirural Somerset, Hunterdon and Warren counties, where long distances to a trauma center often necessitate airlifting of accident victims.

The Northstar Air Medical Program is run and piloted by the New Jersey State Police, which owns three Sikorsky S-76B helicopters, each capable of a carrying two pilots, four medical crew members and two stretcher patients.

Reed's April 4 ruling sets the stage for Bedminster's planning board to review plans to convert part of an existing hangar into offices, sleeping quarters and a kitchen for the Northstar crew. The township says living quarters aren't a permitted use under the site's zoning.

Airport lawyer Mennen says that if the town vetoes the proposal, the Aviation Act permits an appeal to the DOT commissioner. But he is unsure how far the DOT will go to override local authority. "When you start getting down to the internal modifications of an existing building, I'm not sure that's been tested," Mennen says.

Faced with opposition from local government, the DOT has been chary about wielding its authority over airports, says Kevin Kelly, of Newton's Kelly & Ward, who represented a skydiving school whose activities had been restricted at Newton Airport in Andover, Jump v. Township of Andover , A-6608-03T2.

"The town really does have powers to give the airport a lot of trouble," says Kelly. "When a town doesn't want something and they get their legislators behind them and everybody starts lobbying the DOT, the DOT just naturally doesn't want to stand up to that."

Kelly says the line between state and local control remains fuzzy. "The [DOT] commissioner is supposed to give consideration to the town's position. Nobody knows where these lines are in these cases, so they get litigated time and time again," he says. "There's so much room for argument that it's easy for lawyers to make arguments on all sides, so it goes on and on and on."

Continued pressure by municipalities, coupled with citizen suits, may also exact concessions, says Thomas Hall, who heads the land use department at Sills Cummis Epstein & Gross in Newark.

Hall represented Princeton Airport in a suit by Montgomery Township in the 1990s over a runway extension project. The township settled in exchange for accommodations, such as creation of a board to hear disputes between the airport and neighbors.

Eminent domain is another weapon in township arsenals. "Talk about the shotgun behind the door; that's the big one," says Hall.

Newton Airport's attorney, Edward Broderick Jr., of Morristown's Broderick, Newmark & Grather, says the long-running litigation has forced his clients to put the property on the market, which means it might be developed into another use.

The prospect of lengthy litigation at Somerset Airport is a concern for both the airport owner and local residents. Harwick, who is handling the case pro bono, admits the case has been time-consuming and expensive. Mennen, the airport lawyer, says the litigation has strapped the resources of his client, to whom the state pays rent of about $2,500 a month for accommodating Northstar.

And the litigation has served to scale down the ambitions of the airport owner, who previously abandoned plans to construct a large new hangar and support building to accommodate Northstar. Some residents have publicly suspected that Somerset Airport wants to expand to allow jets to land there, although Mennen says its runway is far too short for jets and the owner doesn't own enough land for a significant extension.

Still, Hall says the renovations proposed to accommodate Northstar at Somerset Airport have a good chance in court. "One would think anything reasonably necessary to accommodate the aviation mission would be permitted, so long as it doesn't create a health, safety and welfare problem," says Hall.