S4640

An Act concerning the licensing of certain aeronautical facilities and supplementing and amending P.L.1953, c.234.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. (New section) As used in P.L. , c. (C. ) (pending before the Legislature as this bill):

“Aeronautical facility” means all property, paving, appliances, structures, seaplane docks, runways, taxiways, seaways, sealanes, aprons, hangars, or safety equipment dedicated to, or associated with, the aeronautical activities conducted on the premises and property and all land depicted on the Airport Layout Plan, including all safety zones required for visual or instrument approach procedures as required under 14 C.F.R Part 77. “Aeronautical facility” includes an airport, a seaplane base, a heliport, a helistop, a parachute drop zone, an ultralight recreational facility, an airship base, and a balloonspot.

“Bureau” means the Bureau of Aeronautics in the New Jersey Department of Transportation.

“Commissioner” means the Commissioner of the New Jersey Department of Transportation.

“Covered vertical-flight aeronautical facility” or “facility” means any aeronautical facility consisting of land, water, a building, a rooftop, a platform, a structure, or other area used or intended to be used, in whole or in part, for the takeoff, landing, loading, unloading, parking, staging, servicing, charging, fueling, maintenance, or storage of: helicopters; powered-lift aircraft; vertical takeoff and landing aircraft; electric, hydrogen, hybrid-electric, or other vertical takeoff and landing aircraft; advanced-air-mobility aircraft; or any successor or substantially similar aircraft technology capable of vertical or near-vertical takeoff or landing without the use of a conventional airport runway. “Covered vertical-flight aeronautical facility” includes, but is not limited to, a heliport, helistop, helipad, vertiport, vertistop, powered-lift facility, electric vertical takeoff and landing facility, advanced-air-mobility facility, air-mobility hub, air-taxi landing facility, or substantially similar facility, whether public use, restricted use, special use, temporary, or otherwise classified.

“Department” means the New Jersey Department of Transportation.

“Material alteration” includes any physical expansion or reconfiguration of the facility, change in the number or location of landing or takeoff areas, increase in the number of flights, or other substantial change in the nature, scope, or intensity of the authorized land use for which municipal land use approvals or department approvals are required.

“Municipal land use approvals” means and includes municipal zoning, land use, site plan, variance, conditional use, special use, and other municipal approvals required by law, rule, regulation, or local ordinance for a facility’s proposed or current land use.

2. Section 1 of P.L.1953, c.234 (C.6:1-44.1) is amended to read as follows:

1. a. The commissioner shall have the power to grant an appropriate license or certificate, upon application properly made and the fee therefor paid, for activities and operations that comply with the requirements of [this act] P.L.1953, c.234 (C.6:1-44.1 et seq.).

Licenses or certificates [(] , excepting those issued on a temporary basis [)] , required by regulation for the operation of aeronautical facilities and fixed base operations are issued for a period of one year. Such licenses and certificates may be annually renewed for a period of one year, upon satisfaction of requirements set by the applicable rules and regulations appropriate to the license or certificate sought. Licenses or certificates issued on a temporary basis shall be valid for a period of less than one year and continue in effect until a specified expiration date, by request for withdrawal of license or certificate by the initial applicant, or by order of the commissioner. [Rules] Except as otherwise provided by this section, rules, procedures, and application fees for the issuing of all licenses and certificates shall be established by the commissioner through regulation in accordance with the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.). Each applicant for license or certificate, be it initial, renewal, or temporary, shall be required to pay a nonrebatable fee to the [Division] Bureau of Aeronautics in the Department of Transportation.

All such fees shall be paid to the State Treasurer by the [division] bureau for deposit in the “Airport Safety Fund” established by [section 4 of] the "New Jersey Airport Safety, Security and Improvement Act," P.L.1983, c.264 (C.6:1-89 et seq.).

b. Notwithstanding any other provision of law, rule, or regulation to the contrary, the commissioner shall not issue, renew, extend, reinstate, or materially amend a license or certificate authorizing the operation of a covered vertical-flight aeronautical facility unless the applicant demonstrates compliance with the applicable municipal land use approvals and requirements established by this section. An applicant seeking to obtain or renew a license or certificate shall submit to the Department of Transportation an affidavit from the zoning officer, land use administrator, or other official designated by the municipality in which the facility is located, which affidavit shall attest that:

(1) the facility possesses the municipal land use approvals;

(2) the facility’s operation and land use comply with the applicable conditions and limitations contained in the municipal land use approvals required pursuant to paragraph (1) of this section;

(3) in the case of an application to renew a license or certificate, the facility fully complied with the conditions and limitations established by the applicable municipal land use approvals during the preceding year; and

(4) in the case of an application to renew a license or certificate, the facility has not undergone a material alteration without first obtaining municipal land use approvals.

The affidavit required by this subsection shall be a condition of State licensure or certification and shall not be waived by the commissioner.

c. Except as otherwise provided in subsection d. of this section, the commissioner shall not issue or renew a license or certificate if:

(1) the applicant fails to provide the affidavit required pursuant to subsection b. of this section;

(2) the zoning officer, land use administrator, or other official designated by the municipality in which the facility is located determines that the facility or the land use at the facility does not comply with the municipal land use approvals or any lawful conditions or limitations thereof;

(3) the zoning officer, land use administrator, or other official designated by the municipality in which the facility is located determines that the facility has undergone a material alteration without obtaining additional municipal land use approvals; or

(4) any other requirement established by this section has not been satisfied.

d. The Department of Transportation shall not substitute its interpretation of a municipality’s land use approvals for the determination made pursuant to paragraph (2) or (3) of subsection c. of this section. An applicant aggrieved by such determination may seek review through the administrative or judicial remedies otherwise provided by law. The department shall not issue or renew a license or certificate without receipt of the affidavit required by subsection b. of this section unless the determination is reversed by a court or other tribunal of competent jurisdiction.

e. An applicant seeking to renew a license or certificate for a covered vertical-flight aeronautical facility shall provide the zoning officer, land use administrator, or other official designated by the municipality in which the facility is located with information reasonably necessary for the zoning officer, land use administrator, or other official designated by the municipality in which the facility is located to determine whether the facility underwent a material alteration. Such information may include, to the extent reasonably relevant to that determination:

(1) the total number of aircraft takeoffs and landings at the facility and monthly or other periodic aircraft takeoffs and landings totals;

(2) the days and hours during which the facility was used;

(3) the general types or categories of aircraft using the facility;

(4) whether the facility was used for private, public, commercial, passenger, cargo, charter, scheduled, on-demand, training, emergency, maintenance, repositioning, or other purposes;

(5) the operators or categories of operators regularly using the facility;

(6) passenger or cargo activity at the facility;

(7) fueling, charging, maintenance, storage, staging, parking, terminal, or other ground-side activities at the facility;

(8) changes in the number or location of landing areas, structures, passenger facilities, parking facilities, charging or fueling facilities, maintenance facilities, storage areas, or other physical improvements;

(9) material changes in the number of employees, passengers, customers, vehicles, tenants, or other ground-side activity associated with the use of the facility; and

(10) any other information reasonably necessary for the municipality to determine if the facility underwent a material alteration.

Operational information obtained pursuant to this subsection may only be considered to determine whether the facility has undergone a material alteration. Nothing in this subsection shall be construed to authorize a municipality or the department to regulate the number or frequency of aircraft operations, aircraft routes or flight paths, aircraft operating altitudes, navigable airspace, aircraft in-flight operations, air traffic control procedures, or aircraft safety. The owner or operator of a covered vertical-flight aeronautical facility shall maintain records reasonably sufficient to substantiate the information required pursuant to this subsection for not less than five years.

Knowingly providing materially false or misleading information required pursuant to this subsection shall constitute grounds for denial, suspension, or revocation of a license or certificate authorized by this section in accordance with applicable law.

f. In determining whether a facility has undergone a material alteration without obtaining municipal land use approvals, the zoning officer, land use administrator, or other official designated by the municipality in which the facility is located may consider:

(1) the information provided by an applicant pursuant to subsection e. of this section;

(2) resolutions, ordinances, permits, and other instruments granting zoning or land use approval, if any;

(3) lawful conditions and limitations imposed as part of the municipal land use approvals;

(4) applications, operational descriptions, and other documents expressly incorporated into the municipal land use approvals, if any;

(5) representations concerning the nature, scope, or intensity of the proposed land use that were expressly incorporated into or constituted a material basis for the municipal land use approvals;

(6) certificates of occupancy and other municipal land use approvals for the facility; and

(7) subsequent municipal land use approvals modifying the nature, scope, or intensity of the authorized land use, if any.

A municipality may consider changes in aircraft activity as evidence of a material alteration, but shall not, pursuant to this section, treat the number or frequency of aircraft operations, the type of aircraft in flight, or other federally regulated aviation activity as an independent basis for denying aa request for an affidavit, except to the extent regulation of that matter is otherwise permitted by federal law.

Nothing in this section shall authorize a municipality, through the annual certification process, to impose a new zoning or land use restriction that was not otherwise lawfully applicable to the facility.

g. If the actual or proposed use of a covered vertical-flight aeronautical facility involves a material alteration, the department shall not issue or renew an application to obtain or renew a license or certificate until the applicant obtains additional municipal land use approvals before authorizing the material alteration. As used in this subsection, a material alteration may also include, as applicable:

(1) conversion of a facility approved as a private or accessory use into a public or commercial transportation facility;

(2) commencement or material expansion of passenger-terminal or cargo-terminal activities not encompassed within the authorized land use;

(3) a material expansion of the number or size of landing areas, terminal facilities, waiting areas, parking areas, access facilities, charging or fueling facilities, maintenance facilities, storage areas, or staging areas;

(4) commencement or material expansion of commercial passenger, cargo, maintenance, storage, fueling, charging, or other ground-side activities materially different from those encompassed within the municipal land use approvals;

(5) a material increase or change in passenger, customer, employee, vehicle, cargo, or other ground-side activity demonstrating that the use of the property has materially intensified or changed; or

(6) conversion of a heliport, helistop, or helipad to a vertiport, vertistop, advanced-air-mobility hub, or other vertical-flight facility where that conversion materially changes the nature, scope, or intensity of the authorized land use.

Aircraft activity, including a substantial change in the volume or character of aircraft use of a facility, may be considered to determine whether a material alteration has occurred, but shall not be construed to grant the municipality authority or jurisdiction over matters preempted by federal law.

h. A covered vertical-flight aeronautical facility that lawfully exists as a preexisting nonconforming use, as provided under section 55 of P.L.1975 c.291 (C.40:55D-68), shall not be required pursuant to this section to obtain municipal land use approvals. For purposes of annual certification, the municipality shall determine whether:

(1) the facility remains lawfully entitled to continue as a preexisting nonconforming land use;

(2) the nature, scope, and intensity of the land use remain within the lawful scope of that nonconforming use; and

(3) the land use has not been expanded, enlarged, extended, changed, or abandoned in a manner requiring municipal land use approvals.

i. The affidavit required by subsection b. of this section shall be issued by the zoning officer, land-use administrator, or other municipal official designated by the governing body of the municipality in which the facility is located. Within 45 days after receipt of a request for an affidavit accompanied by the information reasonably necessary to make the determination, the municipal official shall provide the applicant with:

(1) the affidavit; or

(2) a written determination identifying with reasonable specificity the basis for denying the applicant’s request for the affidavit.

j. If, during the term of a license or certificate, a municipality provides the department with a written determination that a covered vertical-flight aeronautical facility’s land use is materially violating municipal land use approvals, or the facility has undergone a material alteration without obtaining additional municipal land use approvals, the commissioner shall initiate appropriate proceedings under applicable law concerning the continued validity of the facility’s license or certificate. The licensee or certificate holder shall be afforded the notice and opportunity to be heard required by applicable law and may demonstrate that:

(1) the violation has been remediated;

(2) additional municipal land use approvals have been obtained; or

(3) the determination has been reversed by a court or other tribunal of competent jurisdiction.

Nothing in this subsection shall prevent the commissioner from taking other enforcement action authorized by law.

k. A facility shall not be excluded from this section because the department, the Federal Aviation Administration, an aircraft manufacturer, an operator, or another person or governmental entity uses a different or subsequently developed name or regulatory classification for the facility or the aircraft using it.

l. Nothing in this section shall be construed to authorize a municipality or the department to regulate:

(1) aircraft while in flight;

(2) aircraft routes or flight paths;

(3) aircraft operating altitudes;

(4) navigable airspace;

(5) air traffic control procedures;

(6) aircraft operating or safety standards;

(7) the rates, routes, or services of an air carrier to the extent regulation thereof is preempted by federal law; or

(8) any other subject over which federal law provides exclusive regulatory authority.

No license or certificate authorized by this section shall be denied, suspended, revoked, or conditioned pursuant to this section solely on the basis of a municipal requirement that regulates a matter identified in this subsection and is preempted by federal law.

Nothing in this section shall be construed to diminish the authority of the commissioner to impose and enforce independently applicable State aeronautical facility and safety requirements or the authority of the Federal Aviation Administration over matters within federal jurisdiction.

m. A transfer of ownership, control, or licensed operating authority for a facility shall not be approved by the department unless the transferor obtains the affidavit required pursuant to subsection b. of this section no earlier than 60 days prior to the transfer date. Upon the transfer of ownership, control or licensed operating authority for a facility, the transferee shall, within 60 days after the transfer date, obtain:

(1) the affidavit required pursuant to subsection b. of this section issued in the name of the transferee; or

(2) a statement from the zoning officer, land use administrator, or other official designated by the municipality in which the facility is located confirming that the affidavit issued to the transferor remains valid following the transfer.

n. A municipality or any person may, at any time during the term of a license or certificate, submit to the department a written complaint or notice alleging that a facility is operating in violation of the municipal land use approvals. Upon receipt of a complaint or notice containing sufficient information to identify the facility and the alleged violation, the department shall review the alleged violation and may request additional information from the complainant, the municipality, the licensee or certificate holder, or any other relevant party. The department shall provide notice of the complaint to the municipality in which the facility is located and shall request confirmation from the appropriate municipal official as to whether the alleged activity is consistent with the facility’s municipal land use approvals and any lawful conditions or limitations thereof. If the department determines that the facility is operating in violation of any municipal land use approvals, the department shall, consistent with applicable notice and hearing requirements, take appropriate enforcement action, which may include imposing conditions upon, modifying, suspending, declining to renew, or revoking the license or certificate.

Nothing in this subsection shall require a complainant to demonstrate a particularized injury or other special interest in order to submit a complaint or notice to the department.

(cf: P.L.2010, c.38, s.1)

3. (New section) The Commissioner of Transportation shall adopt, pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations necessary to implement this act. At a minimum, the rules shall include:

a. a standard form for the municipal affidavit required pursuant to subsection b. of section 1 of P.L.1953, c.234 (C.6:1-44.1);

b. a standard form or procedures for providing the operational and land use information reasonably necessary for the municipality to determine continued compliance;

c. procedures for Department of Transportation’s review of the affidavit as part of initial, renewal, amended, or other license applications;

d. procedures governing enforcement when the required affidavit has not been obtained or a zoning officer, land use administrator, or other official designated by the municipality in which the facility is located has determined that the facility is not in compliance with applicable municipal land use approvals; and

e. procedures necessary to apply the provisions of section 1 of P.L.1953, c.234 (C.6:1-44.1) to subsequently developed categories of vertical flight and advanced-air-mobility facilities.

4. This act shall take effect immediately and shall apply to:

a. every application for an initial license or certificate for a covered vertical-flight aeronautical facility pending on or filed after the effective date;

b. every application for an amended, extended, transferred, reinstated, or otherwise modified license or certificate filed on or after the effective date; and

c. every application for renewal of a covered vertical-flight aeronautical facility license or certificate submitted on or after the effective date of this act.

STATEMENT

This bill conditions the issuance and annual renewal of a State license or certificate for a covered vertical-flight aeronautical facility (facility) upon verification of the facility’s compliance with municipal land use approvals.

Specifically, under the bill, an applicant seeking to obtain or renew a license or certificate is required to obtain an affidavit from a zoning officer, land use administrator, or other official designated by the municipality in which the facility is located (other designated official). The affidavit is to establish that the facility possesses and complies with the municipal land use approvals and any lawful conditions and limitations of those approvals. For an annual license or certificate renewal, the zoning officer, land use administrator, or other designated official is also required to attest that the facility complied with the municipal land use approvals during the preceding year and that the facility has not undergone a material alteration without obtaining additional municipal land use approvals.

Under the bill, to enable the zoning officer, land use administrator, or other designated official to determine whether the facility has undergone a material alteration, the applicant is required to provide certain information concerning the facility’s land use during the preceding year, as outlined in the bill. The bill clarifies that the provisions of the bill do not independently authorize a municipality to regulate aircraft operations or other matters under exclusive federal jurisdiction. The bill further clarifies that the provisions of the bill are not to be construed to alter the Department of Transportation’s (department) independent authority over applicable State aeronautical-facility and safety requirements and federal authority over matters within federal jurisdiction.

In addition, the bill provides that the department is not to approve a facility’s transfer of ownership, control, or licensed operating authority unless the transferee obtains, within 60 days after the transfer date: (1) the required affidavit issued in the transferee’s name; or (2) a statement from the zoning officer, land use administrator, or other official designated by the municipality in which the facility is located confirming that the affidavit issued to the transferor remains valid following the transfer.

Finally, the bill permits a municipality or any person, at any time during the term of a license or certificate, to submit to the department a written complaint or notice alleging that a facility is operating in violation of the municipal land use approvals. Upon receipt of a complaint or notice containing sufficient information to identify the facility and the alleged violation, the department is to review the alleged violation and may request additional information from the complainant, the municipality, the licensee or certificate holder, or any other relevant party. The department is to provide notice of the complaint to the municipality in which the facility is located and request confirmation from the appropriate municipal official as to whether the alleged activity is consistent with the facility’s municipal land use approvals and any conditions thereof. If the department determines that the facility is operating in violation of any municipal land use approvals, the department is required, consistent with applicable notice and hearing requirements, to take appropriate enforcement action, which may include imposing conditions upon, modifying, suspending, declining to renew, or revoking the license or certificate.

It is the sponsor’s intent that conditioning the issuance and annual renewal of a facility’s license or certificate upon verification of the facility’s compliance with municipal land use approvals will provide an additional means of enforcing municipal land use approvals. However, such license or certificate would not permit a facility that has undergone a material alteration to continue operating without receiving additional municipal land use approvals.

Under the bill, “material alteration” is defined as any physical expansion or reconfiguration of the facility, change in the number or location of landing or takeoff areas, increase in the number of flights, or other substantial change in the nature, scope, or intensity of the authorized land use for which municipal land use approval or department approvals are required. “Municipal land use approvals” means and includes municipal zoning, land use, site plan, variance, conditional use, special use, and other municipal approvals required by law, rule, regulation, or local ordinance for a facility’s proposed or current land use.