text:
    JULIA A. CRIST, AMERICA MERCADO, GEORGE L. TAZE-WELL AND VERA TAZEWELL, ON BEHALF OF THEMSELVES, AS PARENTS AND GUARDIANS OF THEIR CHILDREN AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-RESPONDENTS, v. NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES AND THE JUVENILE AND DOMESTIC RELATIONS COURT OF CAMDEN COUNTY, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued June 16, 1975
    Decided July 16, 1975.

      Before Judges Michels, Morgan and Milmed.

      Mr. Michael S. Bolear, Deputy Attorney General, argued the cause for appellants (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Stephen Shillman, Assistant Attorney General, of counsel).

      Mr. Carl S. Bisgaier, Deputy Director, Division of Public Interest Advocacy, argued the cause for respondents (Mr. Stanley C. Van Ness, Public Advocate, attorney; Mr. Kenneth E. Meiser, on the brief).

      Mr. Robert A. Obler argued the cause for amicus curiae Mercer County Legal Aid Society.

      Mr. William H. Lorentz argued the cause for amicus curiae Essex County Legal Services.
   Per Curiam.

The judgment in the Law Division, insofar as it provides that the “Juvenile and Domestic Relations Court shall appoint counsel, upon the request of plaintiffs, to represent plaintiffs at all stages of proceedings for custody of children brought by the defendant Division of Youth and Family Services with the exception of the ex parte application stage,” is affirmed substantially for the reasons set forth in the opinion of Judge King. Crist v. N. J. Div. Youth and Family Serv., 128 N. J. Super. 402 (Law Div. 1974). We are in complete accord that the Juvenile and Domestic Eelations Court should assign counsel without cost to indigent parents who are subjected to proceedings which may-result in either temporary loss of custody or permanent termination of their parental rights. Simple justice demands nothing less in light of the magnitude of the consequences involved. Cf. Rodriguez v. Rosenblatt, 58 N. J. 281, 295 (1971).

The trial court, however, lacks the power to compel the Division of Youth and Family Services to compensate assigned counsel in such cases. The statute under which the Division of Youth and Family Services commenced proceedings for temporary custody of plaintiffs’ children, N. J. S. A. 30 :4C-1 el seq., does not provide for the assignment of counsel for indigent parents in such proceedings or for the payment of compensation to their attorneys, and our court rules do not provide for the payment of compensation to assigned counsel. See R. 5:3-3 and R. 3:27 Accordingly, there is no basis for compensating counsel assigned to represent indigent parents in these proceedings. Our Supreme Court, in a somewhat analogous situation in State in Interest of Steenback, 34 N. J. 89 (1961), prior to the establishment of the Office of Public Defender, rejected claims for compensation for services rendered by counsel assigned by the Juvenile and Domestic Delations Court to defend juveniles charged with delinquency which would have amounted to murder had they been adults, stating:

* * * The history and terms of the statute and the court rule, as well as the settled practice, leave little room for doubt that assigned counsel are at present expected to serve without judicial allowance of compensation except where they represent indigents indicted for murder, [at 103]

See also, State in Interest of Anthony Antini, Jr., 53 N. J. 488, 494 (1969).

Furthermore, since no appropriation had been made by our Legislature to the Division of Youth and Family Services for the payment of compensation to counsel assigned to represent indigent parents in proceedings of this nature, the trial judge was without power to order the Division of Youth and Family Services to compensate assigned counsel. As Chief Justice Weintraub pointed out in Fitzgerald v. Palmer, 47 N. J. 106 (1966):

* * * No money may be drawn from the State treasury but for appropriations made by law. Const., Art. VIII, § II, U 2. The judiciary could not order the Legislature to appropriate money, or the governor to approve an appropriation if one were made. * * * [at 108]

See also, O'Neill v. State Hwy. Dept., 50 N. J. 307, 315 (1967); East Orange v. Palmer, 52 N. J. 329, 333 (1968); East Orange v. McCorkle, 99 N. J. Super. 36, 51 (App. Div. 1968).

Pending this appeal new legislation was enacted which now requires the Office of the Public Defender to represent indigent parents and guardians in custody proceedings in the Juvenile and Domestic Relations Courts involving cases of alleged abuse or neglect of children under the age of 18 instituted under the act. L. 1974, c. 119, § 3; N. J. S. A. 9:6-8.23 et seq. The 1974 act, which was approved and became effective October 10, 1974, remained inoperative for 90 days thereafter (January 8, 1975), with the exception that any action or appointments necessary to effectuate the act were authorized prior thereto. L. 1974, c. 119, § 56. We have been informed that while the Office of the Public Defender has undertaken to provide representation to children through a law guardian in accordance with the act, it is not presently furnishing representation to indigent parents or guardians of such children. See N. J. S. A. 9:6-8.23; N. J. S. A. 9:6-8.21(d). Therefore, until the Office of the Public Defender provides such representation, the Juvenile and Domestic Eelations Courts will have to assign counsel in such proceeding to serve without compensation. See R. 5 :3-3 and R. 3 :27. While we recognize that this will entail some burden upon the members of the bar, there is no suggestion that the burden would be unreasonable or likely to become so in the immediate future. The Attorney General has informed us that as of June 1, 1975 there were pending before the Juvenile and Domestic Relations Courts only 73 guardianship actions instituted for termination of parental rights under N. J. S. A. 30:4C-15, with an additional 115 cases awaiting filing, and approximately 233 protective service complaints for temporary custody under N. J. S. A. 30 :4C-12. Cf. State v. Rush, 46 N. J. 399, 412-413 (1966); State in the Interest of Antini, Jr., supra 53 N. J. at 495.

Accordingly, the judgment of the Law Division, insofar as it directs the Division of Youth and Family Services to provide compensation for assigned counsel representing indigent parents and guardians in custody proceedings brought by the Division of Youth and Family Services, is reversed.

      We note parenthetically that in 1971 the Administrative Director, in order to implement the decision of our Supreme Court in Rodriguez v. Rosenblatt, supra, promulgated procedures for the assignment of counsel for indigent defendants subjected to charges entailing the possibility of imprisonment or other consequences of equal magnitude in the municipal court, and expressly pointed out to the municipal judges that “there is no provision either in this opinion [Rodriguen], the court rules or the statutes, which presently authorizes a court to compensate assigned counsel in these eases.”

      In view of our holding that indigent parents are entitled as a matter of constitutional right to free counsel in proceedings instituted by the Division of Youth and Family Services for the purpose of obtaining temporary custody of their children or termination of their parental rights, it is not necessary to determine whether the 1974 act requires the Office of the Public Defender to represent such parents in proceedings instituted under N. J. S. A. 30 :4C-1 et seg., as well. Any ambiguity created by the failure of the 1974 act to specifically provide for such representation in proceedings instituted under N. J. S. A. 30:40-1 et seg., or to make any reference to the latter act, can be corrected by the Legislature.


source: Caselaw Access Project

author: Carton, P. J. A. D.

license: Public Domain

text:
    IN THE MATTER OF THE ESTATE OF JACK EDWARD GARVER, DECEASED. ELIZABETH GARVER, PETITIONER-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 20, 1975
    Decided July 15, 1975.

      Before Judges Carton, Crase and Kole.

      Mr. Barry I. Fredericks argued the cause for petitioner-appellant.
   The opinion of the court was delivered by

Carton, P. J. A. D.

Elizabeth Garver brought this action in the Chancery Division to obtain a determination that her late husband, Jack Edward Garver, had effectively revoked his will. She sought to be designated administratrix of the estate or, in the alternative, to be named executrix under the will. The trial judge, applying New Jersey law, held that the will had not been revoked and refused to designate Mrs. Garver as either administratrix or executrix. This appeal followed.

The will in question, which named decedent’s then wife, Laura Ellen Garver, as executrix and left her the bulk of the estate, was executed in 1958 in Tennessee when decedent was a resident of that state. In July 1971 decedent and Laura Garver obtained a judgment of divorce in Tennessee and entered into a property settlement. Under the settlement each party released the other from “any obligations that may exist or occur in the future by virtue of the marital relationship or otherwise.” Decedent later married Elizabeth Garver and they then moved to New Jersey for reasons of employment.

Decedent is survived by his present wife and by his former wife, and by two children of the first marriage, Betty Lee Elliott, 25, and Jack Michael Garver, 20.

The trial judge found that the estate consisted solely of personal property, all of which is located in Tennessee and New York.

Under Tennessee law a divorce accompanied by property settlement serves to revoke a prior existing will in favor of the former spouse. Rankin v. McDearman, 38 Tenn. App. 160, 270 S. W. 2d 660 (App. Ct. 1953). New Jersey law is to the contrary. Revocation of a will can be accomplished only by one of the methods provided by statute. In re Spiegelglass, 48 N. J. Super. 265 (App. Div. 1958). The statute, N. J. S. A. 3A:3-3, provides that a will may be revoked by burning, cancelling, tearing or obliterating the will, executing a new will or codicil, or a written revocation executed in the same manner as required for a will.

N. J. S. A. 3A:3-3 embodies a strong policy against implied revocation of wills. In re Santelli, 28 N. J. 331 (1958). And it has long been settled that a divorce will not work an implied revocation of a will. Murphy v. Markis, 98 N. J. Eq. 153 (Ch. 1925), aff’d o.b. 99 N. J. Eq. 888 (E. & A. 1926). Consequently, if the policy against implied revocation is applicable in this ease, the will has not been revoked.

In' ordinary circumstances the rule is 'that the law of testator’s domicile at time of death governs in determining a will’s validity as to the disposition of personal property. Guaranty Trust Co. of N. Y. v. Stevens, 28 N. J. 243 (1958). Although testator here was a New Jersey domiciliary at the time of his death, we conclude that in the special circumstances of this case justice requires that we refrain from applying the New Jersey law of revocation. To hold otherwise would work an injustice by frustrating the clear expectations of testator.

This problem is discussed at 2 Restatement, Conflict of Laivs 2d, § 263 at 122-124 (1914) :

Comment i
* * * [T]he courts of tlie state where the testator was domiciled at time of death would usually refrain from applying their own local law, or would apply the local law of another state, in situations where to do otherwise would defeat the expectations of the testator.

It is clear from the record that testator believed that the will in favor of his first wife had been effectively revoked. He had been specifically advised to that effect by his Tennessee counsel at the time of the divorce. He subsequently informed Elizabeth Garver that he was intestate as a result of the divorce and property settlement. Although given notice of these proceedings, the first wife has chosen not to contest the effort to hold the will revoked. This fact strongly suggests that she, too, understood that she would not share in decedent’s estate. Also significant is the fact that decedent’s children are not adversely affected by revocation. They take nothing under the will but would be eligible for their intestate shares upon revocation.

Recognition of the Tennessee revocation best serves the interests of all parties. By contrast, no substantial New Jersey* interest is jeopardized by a refusal to apply New Jersey law. None of decedent’s property is located in New Jerseyq but is in Tennessee and New York. The sole beneficiary under the will, who as we have noted asserts no claim, is not a resident of this State.

Nor, in the circumstances of this case, does a refusal to apply New Jersey law violate the policy underlying N. J. S. A. 3A:3-3. As Justice Francis noted in In re Santelli supra the revocation statute is essentially a statute of frauds. But here recognition of the implied revocation by divorce creates neither the possibility of misinterpretation nor the opportunity for misrepresentation. Under Tennessee law, which controlled at the time of divorce, the divorce and property settlement have the unambiguous consequence of revocation of the will. The evidence is clear that the parties were aware of, understood, and accepted that consequence.

Our conclusion makes it unnecessary to consider the anomaly which arises if an effectively revoked will is said to be revived solely because the testator subsequently establishes domicile in another jurisdiction.

The judgment appealed from is reversed.


author: Per Curiam.

text:
    SARA J. KUHNER AND FREDERICK KUHNER, HER HUSBAND, PLAINTIFFS-RESPONDENTS, v. SYLVIA KUH-NER, PLAINTIFF, v. MARLYN MANOR, INC., A NEW JERSEY CORPORATION; HENRY R. REITHEIMER; VIRGINIA M. REITHEIMER; HORACE SMITH, UNIVERSAL STRIPLING; KARL HEMPEL AND OWEN HAND, DEFENDANTS, AND CHRYSLER CORPORATION, A FOREIGN CORPORATION, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 16, 1975
    Decided July 31, 1975.

      Before Judges Michels, Morgan and Milmbd.

      Mr. Douglas B. Kleinfeld argued the cause for appellant (Messrs. Conway, Beiseman, Michals & Walil, attorneys).

      Mr. James L. Cooper argued the cause for respondents (Messrs. Cooper, Perslcie, Neustadter <& Katzman, attorneys; Mr. Harry Miller on the brief).
   Per Curiam.

Pursuant to leave granted by this court, defendant Chrysler Corporation (Chrysler) appeals from an order in the Law Division setting aside a jury verdict of no cause for action in favor of Chrysler, and granting a new trial to plaintiffs limited solely to the issue of the liability of Chrysler for plaintiffs’ injuries.

Plaintiff Sara J. Kuhner was struck while walking on a sidewalk in a shopping center in Rio Grande, New Jersey, by a 1964 Plymouth station wagon owned and operated by defendant Horace Smith (Smith). Smith’s station wagon moved forward from the parking area of the shopping center, mounted the curb and struck plaintiff on the sidewalk, pinning her against a brick retaining wall and causing her serious personal injuries. She originally filed suit against Marlyn Manor, Inc., the owner and operator of the shopping center, and its principal stockholders, Henry R. Reitheimer and Virginia M. Reitheimer, charging them with negligence in its design and construction, and Smith charging him with negligence in the operation of the station wagon, including the failure to select the right gear in which to operate the vehicle. Her husband sued per quod, and her daughter Sylvia Kuhner sued to recover damages for the personal injuries she sustained when also struck by the Smith vehicle. Plaintiff subsequently joined, among others, Chrysler as a defendant, charging it with (1) negligence in the design and manufacture of the station wagon, specifically the gear selection system and its component parts, (2) breach of warranty, and (3) strict liability in tort. In their pretrial memorandum plaintiffs detailed their allegations against Chrysler as follows:

This defendant was careless and negligent in the manner in which it designed and installed said gear selection system and said defendant knew or should have known that the precarious manner in which this selection system was designed would probably lead to one selecting the wrong gear. This defendant failed to install a correct and proper gear selection system and were further negligent in failing to forewarn the users of said vehicle of the improper design and installation of said gear selection system. This defendant permitted this hazardous condition to exist in the Smith car in particular all resulting in the creation and maintenance of a nuisance. Defendant, Chrysler Corporation, held itself out to the public as a manufacturer of motor vehicles and accordingly did warrant that said vehicle would be fit for the purposes for which it was intended and said defendant did breach said warranty by failing to design and manufacture a proper motor vehicle with a proper gear selection system within it all resulting in damage to the plaintiffs.
This defendant further placed into the stream of Commerce a motor vehicle which was a hazard to the public in general and to the plaintiffs in particular, in that the said vehicle was improperly designed and manufactured regarding said gear selection system all resulting in said defendant being held strictly liable in tort for said injuries, damages and losses sustained by the plaintiffs.

Prior to trial plaintiff and her husband settled with Marlyn Manor, Inc., dismissing the suit against it and its principal stockholders. Plaintiff Sylvia Kuhner settled with defendant Smith and dismissed her suit against all defendants.

From the evidence developed at trial a jury could have found either that Smith intended to put his vehicle in reverse in order to back out of the parking lot but instead engaged the drive gear, as a result of which the vehicle went forward and struck plaintiffs, or that Smith, after backing out of the parking lot, put his vehicle in drive in order to avoid oncoming traffic and struck plaintiffs. Plaintiffs’ theory as to Chrysler’s liability was predicated on a defective gear selection system. PlaintifEs claimed that the gear selection system was designed in such a manner as to increase the risk that someone would hit the wrong gear button. Expert opinion presented on behalf of plaintiffs indicated the defect to be that the “reverse” and “drive” gear shift buttons were not sufficiently defined and differentiated in color, texture, shape and feel and that a driver would have difficulty in selecting the proper gear shift button, relating this alleged defect to Smith’s inadvertent selection of the wrong gear. Expert testimony presented on behalf of Chrysler supported its contention that the design was safe for normal operation and that the buttons were totally separate from one another and clearly marked with an imprint to designate their function so that the driver would have no difficulty selecting the appropriate gear.

Special interrogatories were submitted to the jury which found that Chrysler was not negligent in the design or manufacture of the push button gear selection system, was not strictly liable in its design or manufacture and did not breach any warranty to the public concerning the push button gear system. The jury also found that Marlyn Manor, Inc., was negligent in the design and construction of the parking area of the shopping center and that Smith was negligent in the operation of his vehicle. The jury awarded damages to plaintiff in the amount of $300,000 and to hex husband fox his per quod claim in the amount of $50,000.

Plaintiffs moved for a new trial only on the issue of Chrysler’s liability for the reason, among others, that the jury instruction given by the trial court was incorrect in that the trial judge failed to inform the jury that Chrysler’s duty to warn was not only applicable to its theory of liability based on negligence but also as to its theory of liability based on strict liability in tort. The trial judge held that “It is clear that the instruction on a duty to warn did apply only to the negligence theory of liability. The jury was never told that under strict liability in tort the manufacturer has a duty to warn users of the dangers of a perfectly made product.” See Kuhner v. Marlyn Manor, 129 N. J. Super. 554, 558 (Law Div. 1974). Portions of the charge pertinent to the issue which we deem appropriate to quote at length read as follows:

Now, the manufacturer of an article, such as an automobile, which, while not inherently dangerous may become so when put to the use to which it is intended, owes to the public the duty of employing reasonable care, skill and diligence in its manufacture, assembly and inspection, and in exercising reasonable diligence to see that it is reasonably fit for the purpose for which it is intended. This duty or [sic] reasonable care extends not only to the purchaser of the vehicle but to all persons who may be reasonably expected to use, and to go further, the manufacturer of a product is under a duty of exercising reasonable care in the design and manufacture of the product to protect those who may reasonably be expected to be in the area of the use of the product from unreasonable risk of harm while it is being used for the purposes for which it is intended.
The same duty applies where the use made of the product is one that the manufacturer should reasonably have foreseen. To put it another way, the manufacturer is under a duty to exercise reasonable care in the production of its product, to avoid unreasonable risk of harm from the use thereof by those likely to be exposed to such risk. Thus, the maker of an article which is intended for sale or use by others is required to use reasonable care and skill in designing and producing, so that it is reasonably safe for the purpose for which it is intended, as well as for other uses that are reasonably foreseeable. This duty includes the obligation of exercising reasonable care in the inspection of the product for the purpose of locating latent or patent defects therein. This duty to exercise reasonable care extends to anyone who may reasonably be expected to be in the vicinity of the chattel’s probable use and to be endangered in the event that it is defective.
In order for the manufacturer to be liable under this rule that I have just given you, the defect which is asserted to have been a proximate cause of the failure or condition which brought about the plaintiffs’ injury must be shown to have been one which existed at the time the article left the control of the manufacturer. Now, the manufacturer or processer of materials sold is under a duty to make a reasonable inspection and test of such product to discover or disclose discoverable defects. This duty calls for and requires the exercise of reasonable care in applying reasonable tests to detect discoverable defects and deficiencies in the article or product. For a guidepost as to what is reasonable inspection, you must weigh the difficulties of effective discovery of the defect in question against the dangers inherent in the article produced or processed. The greater the danger which inheres in the article produced or processed, the more precise the inspection must be in order to be reasonable.
Now, a manufacturer not only owes a duty to exercise reasonable care in the manufacture and inspection of this product, but likewise owes a duty, owes a companion duty to warn buyers and users of the latent or hidden limitations of even a perfectly-made article, the use of which is dangerous if the user is ignorant of those limitations and the manufacturer has no reason to believe that the user will recognize the danger.
Now, ladies and gentlemen of the jury, there is a concept in our law which is referred to as a manufacturer’s strict liability and tort. That is this: The manufacturer of a product is liable if the product was defective, that is not reasonably fit for the ordinary purposes for which such products are sold and used, and the defect arose out of its design or manufacture or while the product was in the control of the manufacturer, and it proximately caused injury or damage to the ultimate purchaser or reasonably foreseeable consumer or user. Proof of the manufacturer’s negligence in the making or handling of the article is not required. In order to hold the defendant liable in this case, in such a case of strict liability, you must determine by the preponderance of the believable evidence that, one, the product manufactured by the defendant was not reasonably fit for the ordinary use for which it was intended; two, the defect arose out of its design or manufacture or while the product was in the control of the manufacturer; three, the defect proximately caused injury or damage to the plaintiff; four, the plaintiff was the ultimate purchaser or reasonably foreseeable consumer or user.
Now, again, the burden of proof, as I have said before and explained it to you, the burden of proof is by the preponderance of the believable evidence, and as to these matters rests upon the party who asserts this contention.
Now, let me repeat that. In order to hold the defendant liable under the concept of strict liability, the product manufactured by the defendant, you must determine that the product manufactured by the defendant was not reasonably fit for the ordinary use for which it was intended; two, that the defect arose of its design or manufacture, or -while the product was in the control or [sic] the manufacturer; three, the defect proximately caused injury or damage to the plaintiff ; and four, the plaintiff was the ultimate purchaser or a reasonably foreseeable consumer or user.

Plaintiffs did not object to the charge nor did they submit a specific request to charge that the duty to -warn was applicable to the theory of strict liability in tort. Nonetheless, the trial judge set aside the jury’s verdict in favor of Chrysler and ordered a new trial solely on the issue of the liability of Chrysler.

We are convinced that the trial judge erred in granting plaintiffs a new trial on the issue of the liability of Chrysler. The judge properly and fully instructed the jury with respect to the theories of liability upon which plaintiffs based their claims against Chrysler. The jury was specifically charged that Chrysler had a duty to warn buyers and users of the latent or hidden limitations of even a perfectly made article. A fair reading of the entire charge discloses that the trial judge did not limit or restrict Chrysler’s duty to warn to the theory of liability based on negligence, and that it applied to all theories of liability.

Moreover, there was no justification for granting plaintiffs a new trial for the reason that the trial judge failed to “tell the jurors that in order to find for plaintiff against Chrysler Corporation it had only to find liability under any one of the three theories advanced, and not that they had to find Chrysler liable on all theories.” Kuhner v. Marlyn Manor, supra, at 560. There was no real possibility that the jury might have been misled by the failure of the trial judge to specifically instruct them in this regard nor was the failure of the trial court to do so “clearly capable of producing an unjust result.” R. 2:10-2.

Beyond this onr study of the entire record satisfies us that the verdict in favor of Chrysler was not a miscarriage of justice under the law and that the trial judge mistakenly exercised discretion in setting aside the verdict and granting a new trial to plaintiffs as to Chrysler’s liability. See R. 2:10 — 1. Accordingly, the order for a new trial entered in the Law Division is reversed and the judgment in favor of Chrysler be and hereby is reinstated.


author: McGlynn, J. D. C.,

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. DAVID CYMER-MAN, HEIDI CYMERMAN, SOLOMON CYMERMAN, JOHN GARNER AND LISA BRICK, DEFENDANTS. STATE OF NEW JERSEY, PLAINTIFF, v. JOHN GARNER, LISA BRICK AND SOLOMON CYMERMAN, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided July 3, 1975.

      Mr. Robert L. Cerefice for plaintiff (Mr. Kenneth, Ply on the brief).

      Mr. Barry M. Epstein for defendants David Cymerman and Heidi Cymerman (Messrs. Reibel, Isaac, Tannenbaum & Epstein, attorneys).

      Mr. John A. Ridley for defendant Solomon Cymerman (Messrs. Crummy, Del Deo, Dolan & Purcell, attorneys).
   McGlynn, J. D. C.,

Temporarily Assigned. [1] Defendants move to suppress a sizeable quantity of marijuana and numerous other items of contraband seized from an apartment at 265 Grove Street, Elizabeth by members of the Union County Prosecutor’s Office and Elizabeth narcotics squad. The seizure was authorized by Superior Court Judge Harold A. Ackerman following a telephone conversation he had with Lt. Richard Mason of the Union County Prosecutor’s Office and Assistant Prosecutor John H. Stamler of that office. The question presented, a novel one in New Jersey, is whether a search warrant may be applied for and issued telephonically. I am of the view that such a warrant is valid and the seizure resulting from its issuance will be sustained.

Judge Ackerman was called at his home by Assistant Prosecutor Stamler shortly before 1 a.m. on March 18, 1974. Stamler and Mason both spoke with the judge simultaneously and presented information which had been received by Mason at 12:35 a.m. at his home. The conversation relating to the information and the warrant was recorded by Stamler and a transcript of the conversation from the preserved recording was prepared and later certified by Judge Ackerman. It reveals that the judge was called for the express purpose of hearing an emergent application for a search warrant.

Following the administering of an oath to Lt. Mason over the telephone by Judge Ackerman, Stamler asked the judge to accept Lt. Mason’s qualifications as an expert in the field of drug abuse. Judge Ackerman did so based upon his prior knowledge of Mason’s qualifications. Mason then told Judge Ackerman that some 20 minutes earlier ho had received a phone call from Detective Pariso of the Essex County Strike Force, in which Pariso told him that at midnight a subject had been arrested in the South Mountain Reservation in Essex County following the sale of 40 pounds of marijuana to an undercover agent. The subject had told the Essex authorities that the 40 pounds was part of a large shipment of 300 pounds which had been brought into New Jersey by him and the defendant David Cymerman and that the remaining marijuana was in Cymerman’s apartment at 265 Grove Street in Elizabeth. Pariso also told Mason that when they were effectuating the arrest in Essex County another person involved with defendants had escaped apprehension on foot and was at that time being sought by the authorities. Mason advised that the Essex County author!ties were concerned that if the person who escaped got to a telephone, he would call Cymerman and that therefore the balance of the marijuana would be lost from detection and seizure. Finally, Mason told Judge Ackerman that he had received reliable information from Pariso and other law enforcement authorities in Pariso’s office on approximately 50 prior occasions, and that many substantial drug seizures had been made as a result of the prior information.

Stamler then advised the judge that he sought a search warrant limited solely to the apartment Mason described at 265 Grove Street, Elizabeth. Finding that probable cause existed for a search of the premises based on the information given to him in the call, Judge Ackerman authorized the search of the premises at 1:06 a.m. and further authorized Stamler to advise any persons at the apartment that the officers were acting pursuant to Judge Ackerman’s-au-thorization. A return on the warrant was prepared on March 20 and indicates that Stamler, Mason and five other officers executed Judge Ackerman’s warrant at 1:19 a.m. on the apartment in question. The return and inventory of items seized were served on defendants David and Heidi Cymerman, the occupants of the apartment in question.

The evidence seized .was made the basis of a conspiracy charge against those two defendants, Solomon Cymerman, John Garner and Lisa Brick. The overt acts include an allegation that on March 17, 1974 Garner, Brick and Solomon Cymerman possessed marijuana and Garner and Brick possessed LSD in Livingston, and that David and Heidi possessed marijuana in Elizabeth. A separate indictment charges Garner and Brick with possession and possession with intent to distribute LSD on March 17, 1974 in Livingston, and Garner, Brick and Solomon Cymerman with possession and possession with intent to distribute marijuana on the same date in Livingston. All of the charges against Garner and Brick have been disposed of and all of the remaining charges against David, Heidi and Solomon consolidated for tire purpose of trial. The Cymermans bring this motion to suppress.

At the very outset they contend that the evidence seized in Elizabeth pursuant to Judge Ackerman’s authorization must be suppressed since the State absolutely failed to comply with the requirements of B. 3:5-3. That rule requires that the applicant for the warrant personally appear before the issuing magistrate. It contemplates that a written warrant be dated and issued, specifying the place to be searched, the property seized and the permissible hours of execution. Since Mason did not personally appear before Judge Ackerman, and since no written warrant was issued, defendants contend that the seizure was invalid.

This argument is without merit. It ignores the existence of B. 1 :l-2, which permits the relaxation of any rule (with exceptions not applicable here) if adherence to the rule would result in an injustice. In State v. Fariello, 133 N. J. Super. 114 (App. Div. 1975), for example, the failure of the issuing judge to comply with the, requirements oí R. 3:5-6 regarding the filing of a summary of oral testimony was held not to invalidate an otherwise proper search. See State v. Clemente, 108 N. J. Super. 189 (App. Div. 1969), certif. den. 55 N. J. 450 (1970); In re Search of C Co. Premises, 115 N. J. Super. 262 (App. Div. 1971). In State v. Parsons, 83 N. J. Super. 430 (App. Div. 1964), the failure of searching officers to execute a proper return as required by present B. 3:5 — 5 was held not to vitiate an otherwise proper search. The court stated that the return of a search warrant is a ministerial act and that a deficiency or failure in the return does not avoid the warrant or search thereunder, "even if no return is ma.de at all.” 83 N. J. Super, at 445. Similarly, in State v. Harris, 98 N. J. Super. 502 (App. Div. 1968), certif. den. 51 N. J. 396 (1968), the failure to file the affidavit in accordance with present B. 3 :5-6 was held not to be fatal to an otherwise valid search. The court stated:

The rule requiring the filing of the affidavit is directory only. It was adopted in order to facilitate the administration of justice. It may not be used to frustrate that objective. The failure to comply with that rule does not automatically result in the invalidity of an affidavit or a warrant otherwise lawful. A wrongdoer should not benefit by the suppression of incriminating evidence simply because those documents have been lost. [98 N. J. Super, at 504-505]

Thus, it would appear that the rules relating to the issuance of search warrants are indeed subject to the general relaxation rule so long as no basic Fourth Amendment rights are thereby abridged.

Defendants contend that the requirement in R. 3: 5-3 of a face-to-face confrontation between the issuing magistrate and the affiant is of constitutional dimension. I disagree. The Fourth Amendment requires that warrants issue “supported by oath or affirmation,” while the requirement that the oath be taken by the issuing magistrate in the presence of the affiant appears to be judge-made. Defendants contend that State v. Petillo, 61 N. J. 165 (1972), cert. den. 410 U. S. 945, 93 S. Ct. 1393, 35 L. Ed. 2d 611 (1973) mandates a contrary conclusion. However, it would appear from Petillo that it is the oath itself and not the face-to-face confrontation which is mandated and which is at the core of the Fourth Amendment requirement. 61 N. J. at 174. Under the circumstances here, the oath administered to Mason by Judge Ackerman over the telephone was adequate to satisfy the Fourth Amendment mandate. An officer could no more avoid the sanction for perjury or false swearing by supplying false information over the telephone than if he lied after taking the oath with his fingers crossed behind his back in the judge’s presence.

Moreover, there is no constitutional impediment to a telephonic application for the issuance of a warrant and its issuance telephonically. R. 3:5-3 contemplates an oral presentation in that it expressly permits the judge to examine, under oath, the applicant himself or any witness whose information the judge may require. The rules of court governing search warrants are meant to fulfill the constitutional need for a “verified showing of probable cause before the issuing magistrate.” State v. Macri, 39 N. J. 250, 260 (1963); State v. Mark, 46 N. J. 262 (1966). The rules, then, are designed to embody the constitutional mandate and to promote uniformity in the issuance and execution of the search warrants and, most importantly, the preservation of testimony and other evidence for use, if necessary, in subsequent motions to suppress. That mandate was satisfied here by the recording of the conversation Mason and Stamler had with Judge Ackerman.

In an attempt to encourage police officers to apply for search warrants as often as possible prior to conducting searches of constitutionally protected areas, several states have authorized the use of a procedure to apply for a search warrant orally or telephonically, similar to the procedure used in the present case. See Cal. Penal Code § 1528(b) and ire. Rev. Slat. Ann. § 13-1444(0). A proposal to amend N. J. Court Rules 3:5-3 and 3 :5-6 to provide for such telephonic search warrants has been made by the Office of the Attorney General, Division of Criminal Justice, but has yet to be adopted. See Note, “Telephonic Search Warrants: A Proposal,” 2 Grim. Justice Q. 151 if. (1974).

The California statute which authorizes such oral search warrants has been upheld against constitutional attack, People v. Peck, 38 Cal. App. 3d 993, 999-1000, 113 Cal. Rptr. 806, 810 (D. Ct. App. 1974), and it had previously been decided that telephonic applications were included in the designation “oral.” People v. Aguirre, 26 Cal. App. 3d Supp. 7, 103 Cal. Rptr. 153 (App. Dept. Super. Ct. 1972). See also, Miller, “Telephonic Search Warrants: The San Diego Experience,” 9 The Prosecutor 385 (1975); “Oral Search Warrants: A New Standard of Warrant Availability,” 21 U. C. L. A. L. Rev. 691 (1974).

While concededly the better practice in all search warrant cases, including those obtained by telephone, should be that a copy of the warrant be served on the owner of the premises searched, prior to or at the time of the search, B. 3 :5-3 does not place such a time limit on its directive concerning service of the search warrant. Under the very similar Federal Rule of Crim. Proc. 41(d), it has been held that it is not mandatory that a copy of the warrant be served on the person searched before the search takes place. Katz v. United States, 389 U. S. 347, 355 fn. 16, 88 S. Ct. 507, 19 L. Ed. 2d 576, 584 (1967). Thus, a person whose conversation is being intercepted pursuant to a valid court authorized warrant need not be advised of such beforehand. Furthermore, the failure to present a search warrant at the time of the search is not a constitutional infirmity where the search is otherwise valid. State v. Martelle, 252 A. 2d 316 (Me. Sup. Jud. Ct. 1969), Poole v. State, 467 S. W. 2d 826 (Tenn. Crim. App. 1971), Nor should law enforcement officers be prevented from making a search under a valid warrant by the mere happenstance that no one is occupying the premises to be searched at the time the officers arrive. See, e. g., Kirby v. Beto, 426 F. 2d 258 (5 Cir. 1970), cert. den. 400 U. S. 919, 91 S. Ct. 181, 27 L. Ed. 2d 159 (1970).

In Bowyer v. Superior Court of Santa Cruz County, 37 Cal. App. 3d 151, 111 Cal Rptr. 628 (D. Ct. App. 1974), reh. den. 112 Cal Rptr. 266 (D. Ct. App. 1974), the court held that a search conducted under the California “Oral search warrant” statute was invalid due to the failure of the police to execute a warrant in written form, in contravention of the provision in the statute that a “duplicate original warrant” be signed by the police officer who obtained an oral warrant not in the presence of the issuing magistrate. 37 Cal. App. 3d at 164, 111 Cal. Rptr. at 636. However, a close reading of this ease reveals that the holding is based more on the statutory ground, including relevant legislative history, than on any constitutional requirement that a physical warrant bo displayed in every case prior to a search. 37 Cal. App. 3d at 164-165, 111 Cal. Rptr. at 637.

Here, the Union County law enforcement authorities acted in a manner consistent with a proper respect for the defendants’ Fourth Amendment rights. Despite the necessity for quick action, they first sought a judicial determination of probable cause to search, and only after receiving the authorization of Judge Ackerman did they commence to search. The failure in this case to draw up and execute a search warrant in writing is justified by the belief of the police that the time for action was short and any delay might well result in the removal or destruction of the evidence sought. In connection with the lack of a physical search warrant, it should be emphasized that the oral warrant was executed immediately by the same police officers who swore out the affidavit, and there was virtually no possibility of a mistake being committed in the execution of the warrant. “There is a presumption that the law enforcement officers acted legally in executing the court’s warrant.” State v. Kuznitz, 105 N. J. Super. 33, 42 (Cty. Ct. 1969). Defendants have not shown how they were prejudiced by the fact that the Union County officers did not have a physical written warrant in their possession when they executed the search. See United States v. McKenzie, 446 F. 2d 949 (6 Cir. 1971).

Defendants also contend that the information given Judge Ackerman was insufficient to justify the granting of the warrant. I disagree. Judge Ackerman has orally determined the issue of probable cause adversely to the defendants. I must, according to State v. Kasabucki, 52 N. J. 110 (1968), pay “substantial deference to that determination.” Judge Ackerman’s conclusion is binding upon me unless there is “clearly no justification for that conclusion.” 52 N. J. at 117. Defendants contend that Judge Ackerman should not have accepted information supplied by the codefendent who was arrested in Livingston. They rely upon Pollock v. Superior Court, 272 Cal. App. 2d 54-8, 77 Cal. Rptr. 565 (D. Ct. App. 1969), and In re Golia, 16 Cal. App. 3d 775, 94 Cal. Rptr. 323 (D. Ct. App. 1971), for the proposition that the uncorroborated assertions of an accomplice are insufficient to justify the issuance of a search warrant. Moreover, defendants rely on State v. Schelle, 126 N. J. Super. 596 (App. Div. 1975), which they assert establishes the acceptability of accomplice testimony only if it is supported by independent corroboration. I see no reason why accomplice testimony alone cannot rise to the level of probable cause sufficient to justify the issuance of a search warrant. I do not agree with defendants’ implication that Schelle, supra, mandates corroborating evidence. It has long been the law in New Jersey that accomplice testimony alone is sufficient to convict a defendant at trial. See, e. g., State v. Hyer, 39 N. J. L. 598 (Sup. Ct. 1877); State v. Begyn, 34 N. J. 35, 54 (1961). Although a cautionary instruction is required when such testimony is offered at trial, the instruction is designed to apprise the jury that the witness’s motives in implicating the defendant may be less than altruistic. Probable cause is, of course, less than guilt beyond a reasonable double. State v. Kasabuchi, supra.

Defendants also contend that there was ample time available to Mason and Stamler to appear before a judge and follow the procedure mandated by R. 3:5-3. In my view, Retillo, supra, prohibits me from looking behind those facts presented to Judge Ackerman which would have justified an emergent telephonic application as well as those which go to probable cause. The decision that a situation demands a telephonic application rests upon solely with the issuing judge, and the testimony he relies upon in so deciding is not subject to attack. Moreover, his determination that the circumstances justified a telephonic warrant is entitled to the same weight as his determination of probable cause. State v. Kasabucki, supra. I find nothing in the transcript of the phone conversation which would indicate that there was no justification for Judge Ackerman’s acting as he did.

Two reasons exist for suppressing evidence. Justice Brandéis expressed what is probably the more important in his dissent in Olmstead v. United States, 277 U. S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928). He spoke of Die need to preserve the integrity of the courts. The courts, he said, should not condone law-breaking by government officials. “If the government becomes a law breaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy.” 277 U. S. at 485, 48 S. Ct. at 575. The second reason is to deter the police front illegal searches. State v. De Simone, 60 N. J. 319, 323 (1972). Hopefully, if police know that evidence seized in a manner contrary to the mandate of the Constitution will not be admitted against a defendant, they will not utilize the procedures which result in such seizures.

In the present case there is no reason to suppress. The procedure violated no constitutional provision. The information was reliable; probable cause and exigent circumstances existed, and the only defects were ministerial. The behavior of the police was exemplary. Had they conducted a raid without judicial sanction under the theory of exigent circumstances, no record of the justification for their actions would have existed and defendants and this court would have been forced to rely upon their oral testimony at a hearing. Such testimony has too often been criticized as conveniently altered on the theory that the end justifies the means. They chose, however, to receive judicial authorization, a most commendable decision. As the Supreme Court said in Stale v. De Simone, supra:

Needless to say there is no official arrogance when the officers place the facts before a magistrate for his view rather than search and seize upon their own assessment of the factual pattern when it accrues. Since it furthers the constitutional purpose to encourage applications to a magistrate, we should take a view of the problem which will make that course more feasible. [60 N. J. at 323 (1972)]

Surely, the behavior shown in the present case is to be not deterred, but encouraged, at least insofar as seeking judicial review is concerned. Similarly, there is no undermining of the integrity of our judicial system. The officers broke no laws, and they did not act until they received permission. Judge Ackerman’s actions insured that improper behavior was not sanctioned.

A benefit will accrue to defendants if I suppress the results of this search, but not deservedly, in my view. Society should not be deprived of the protection offered by its law enforcement officers at times when they do nothing wrong. Rather, an individual who has clearly violated the law should reap the benefits of suppression only when the officers themselves disobeyed the law. Since in this case Lt. Mason and Assistant Prosecutor Stamler could not possibly be accused of insolence in office, society should not be deprived of the fruits of their labor. The procedures employed in this case may have been unorthodox, but they were not unconstitutional or otherwise illegal. The motion to suppress is denied.


author: Rosenberg, J. S. C.

text:
    GARDEN STATE FARMS, INC., A CORPORATION OF THE STATE OF NEW JERSEY AND STATE OF NEW JERSEY, DEPARTMENT OF TRANSPORTATION, DIVISION OF AERONAUTICS, PLAINTIFFS, v. MAYOR LOUIS BAY II, COMMISSIONER HAROLD FLOYD AND COMMISSIONER ARTHUR A. BROKAW OF THE BOROUGH OF HAWTHORNE, JULES BOUBLIS, JOSEPH ROONEY, JOHN SOTNECK, PAUL ELWOOD, JOSEPH PSOTA, AND THE BOROUGH OF HAWTHORNE, A MUNICIPALITY OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided July 8, 1975.

      Mr. Herman M. Jeffer for plaintiff Garden State Farms, Inc. (Messrs. Jeffer, Walter, Tierney, DeKorte, Hopkinson & Vogel, attorneys; Mr. Barry N. Shinberg on the brief and of counsel).

      Mr. Douglas C. Borchard, Jr. for defendants Mayor Louis Bay II, Commissioner Harold Floyd, Commissioner Arthur A. Brokaw and the Borough of Hawthorne (Messrs. Evans, Hand, Allabough & Amoresano, attorneys).

      Mr. Robert J. Passero for defendants Jules Boublis, Joseph Rooney, John Sotneck, Paul Elwood and Joseph Psota (Messrs. Raff & Passero, attorneys).
   Rosenberg, J. S. C.

This is an action in lieu of prerogative writs wherein plaintiff seeks to have an amendment to the zoning ordinance of the Borough of Hawthorne declared invalid and void. The factual record is comprised of a stipulation of facts agreed to by the parties and evidence elicited at a plenary hearing held pursuant to R. 4:69 — 1. From that record the court has made findings of fact in accordance with its inherent power and constitutional authority, N. J. Const. (1947), Art. VI, § V, par. 4, and, upon application of relevant provisions of law thereto, has concluded that plaintiff’s attack upon the Hawthorne ordinance must fail.

I

The Borough of Hawthorne is located in the southeast portion of Passaic County, bounded on the north and east by the Township of Wyckoff and the Boroughs of Ridgewood, Glen Rock and Fair Lawn, all located in Bergen County, and to the south and west by the City of Paterson and the Boroughs of Prospect Park and North Haledon, all in Passaic County. The population of the municipality is approximately 19,500 in an area of 3.63 square miles. It is a developed community with less than 339 acres of land still unimproved. Land use is devoted mainly to one and two-family homes, garden apartments, industry, office and commercial business and other public and private uses — churches, schools and parks, for example — which are characteristic of moderate-income suburban communities.

Plaintiff Garden State Farms, Inc. (Garden State) is the operator of an extensive dairy products business in Northern New Jersey, with over 85 retail stores selling milk and related food products. These outlets are supplied by nine processing and packaging plants owned bv Garden State and located in New Jersey, New York and Pennsylvania. Among these plants is the company’s main production facility located in Wyckoff on land contiguous to a parcel of land in Hawthorne owned by Garden State. This property, known as Lot 4 in Block 286, is a vacant lot situated at the intersection of Hopper Street and Braen Avenue within an 1-1 Industrial Zone as described in Ordinance No. 1175 of the borough (1970 revision). The area north of Braen Avenue and west of Hopper Street is partially within an R-1 Residential Zone (one-family homes) and an R-2 Residential Zone (two-family homes), and the area south of Braen Avenue is partially within an 1-1 Industrial Zone and an R-2 Residential Zone.

Garden State has sought to construct and maintain a helicopter landing pad on the above-described Hawthorne tract in order to facilitate fast and efficient transportation between its other production facilities and its Wyckoff plant. A statement of such intention, contained in a letter to Mayor Bay from Peter H. Sandfort, president of Garden State, was submitted to the board of commissioners of the borough on October 6, 1971. At a regular meeting on that date the commissioners adopted a resolution granting the company permission to construct the helipad. Apparently this action was taken in the belief that local approval was a necessary prerequisite for issuance of a license by the Division of Aeronautics of the New Jersey Department of Transportation, such license being required by law for operation of a private helipad. N. J. S. A. 6:1-43. On February 21 and April 24, 1973 hearings were conducted on Garden State’s application for a license at the Municipal Building in Hawthorne by Thomas W. Coyle, then Director of Aeronautics in the Department of Transportation. In his “Recommended Findings of Fact and Law and Conclusions” submitted to the Commissioner of Transportation on September 28, 1973 Coyle advised “that a license to operate a Class III VFE Daylight operation, private use only Helistop be issued to Garden State Farms.” This recommendation was implemented by issuance of License No. H-289 to Garden State on October 29, 1973. However, on December 6, 1973 this license was suspended by Coyle because of irregularities in the administrative proceedings surrounding the grant of the license. At present the license remains suspended, with further action on it dependent at least in part upon the outcome of this lawsuit.s

The action of the borough commissioners approving Garden State’s intention to construct a helipad met with widespread objection from neighborhood residents who were opposed to the company’s proposed use. The objecting property owners instituted suit in Superior Court seeking injunctive relief to bar construction of the helistop on the grounds that the proposed land use violated the borough zoning ordinance and thus required a variance from the ordinance. Such relief was denied and this court, in an opinion reported as Boublis v. Garden State Farms, Inc., 122 N. J. Super. 208 (Law Div. 1972), held that regulation of land use for a helipad was within the zoning power of the municipality and that a variance was not required for such a purpose because it comprised an accessory use under the borough’s zoning ordinance.

On or about March 7, 1973, following both the Boublis decision and commencement of the Division of Aeronautics hearings on Garden State’s license application, the borough clerk received a petition in opposition to the use of the heli-stop which called for a popular referendum to amend the zoning ordinance to prohibit helipads within the municipality. Although this petition was rejected by the clerk, Ordinance No. 1223 was introduced at the April 18, 1973 meeting of the board of commissioners and finally adopted on May 2, 1973. That ordinance, which is the subject of the instant litigation, reads as follows:

AN ORDINANCE TO FURTHER AMEND THE ZONING ORDINANCE OF THE BOROUGH OF HAWTHORNE, REVISION OF 1970, HERETOFORE ADOPTED AS ORDINANCE 1175 OF THE BOROUGH OF HAWTHORNE.
The Board of Commissioners of the Borough of Hawthorne, in the County of Passaic and the State of New Jersey, do hereby ORDAIN as follows:
SECTION 1. That the Zoning Ordinance of the Borough of Hawthorne, Revision of 1970, heretofore adopted as Ordinance No. 1175 of the Borough of Hawthorne shall be and hereby is amended by the addition to Section 5 thereof of Paragraph 11, as follows:
11. In all districts the use of any land or property or any buildings or roof tops or structures, or the construction, development or alteration of any structure, roof or building, for the purpose of accommodating the taking off or the landing of airplanes, helicopters or any and all other types of airborne vehicles is specifically prohibited whether a principal use or accessory use.
SECTION 2. Any and all parts or provisions of Ordinance 1175, and any amendments or supplements thereto which are inconsistent or in conflict with this Ordinance are hereby repealed to the extent of said Conflict, and all remaining provisions of Ordinance 1175 as amended and supplemented are hereby confirmed and shall remain in full force and effect.
SECTION 3. This Ordinance shall take effect upon final passage and publication as provided by law.

The testimony of Mayor Bay, one of the witnesses called at the plenary hearing, sheds some light upon the genesis of this ordinance. According to the mayor, the October 6, 1971 resolution of the commissioners granting Garden State permission to construct the helipad was adopted not only'' because such approval was considered necessary for action by the Division of Aeronautics but also in the belief that the borough was powerless to prevent the helistop from being built. This legal conclusion was not reached with the advice of counsel but rather on the basis of representations made to the mayor by Sandfort, Garden State’s president, to the effect that regulation of helistops had been preempted by state and federal authority. Apparently as a result of the Boublis decision, the mayor and commissioners concluded that the borough in fact did have power over the proposed helipad use and thereafter chose to act accordingly. Mayor Bay quite candidly acknowledged that the expression of public sentiment evidenced by the petition played a part in the board’s determination of how it should exercise its land use prerogative over Garden State’s proposed use. The result was Ordinance Mo. 1223.

In deciding to enact an ordinance banning the takeoff and landing of aircraft within the borough Mayor Bay testified that he and the commissioners were concerned that such activity would have adverse impact upon the “serenity” of the community. The mayor expressed the belief that the general quality of life within the borough would be adversely affected by low-level air traffic. Such factors as increased noise and air pollution, potential increases in automobile traffic and the anticipated distractions and anxiety to residents caused by ascending and descending aircraft, all were mentioned by the witness as considerations in the decision to adopt the ordinance. While Mayor Bay conceded that none of these conclusions were supported by a survey of expert or lay opinion, he said that he based his conclusions on personal observations and his knowledge of Hawthorne and its citizens.

Also testifying at the plenary hearing was Francis R. Gerard, present Director of Aeronautics in the Department of Transportation. Gerard outlined the functions of his Department under the Transportation Act of 1966, N. J. S. A. 27:1A-1 et seq., and indicated that one of the main problems faced by the Division of Aeronautics is locating air terminal facilities to implement the transportation requirements of the State. This is consistent with the witness’ observation that under a working arrangement with the Federal Aviation Administration (F.A.A.) aviation problems on the ground are subject to state regulation while those in the air are within the province of federal control exercised by the F.A.A. Gerard identified the role of his Division in placement of facilities as being two-fold: to promote development of aviation to insure that facilities are safely established where needed, and to investigate applications and license terminal sites to guarantee that they are situated, maintained and operated in accordance with recognized standards of avigational and ground safety. Normal procedure of the Division is to work in coordination with local government officials so that these ends are served while at the same time accommodating the needs and desires of the localities. As a matter of policy Gerard stated that the initiative would not be taken to place a facility within a municipality where it was not wanted, although he offered the opinion that under its stautory authority his Department could dictate location of facilities to municipalities if it was felt that such action was necessary to serve the transportation needs of the population.

In response to questioning specifically directed to the Borough of Hawthorne1, Gerard testified that there is no present or anticipated need to locate an airport for fixed-wing aircraft in the borough but that every municipality in which there is economic activity, including Hawthorne, should provide or permit helistops in order to promote business development. He noted that helicopters could land and take off safely from the borough despite its proximity to metropolitan New York airports, and he iterated that Garden State’s helipad license is currently suspended because of the hearing officer’s failure to comply with administrative regulations and not because of safety considerations.

II

This action is in the nature of a declaratory judgment. N. J. S. A. 2A:16-53 provides that

A person interested under a deed, will, written contract or other writing constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder. [Emphasis supplied] '

It is apparent from the pleadings that an actual justiciable controversy exists, making a declaratory judgment action appropriate. N. J. Turnpike Auth. v. Parsons, 3 N. J. 235, 239-241 (1949); Unsatisfied Claim, & Judg. Fund Bd. v. Concord Ins. Co., 110 N. J. Super. 191, 196 (Law Div. 1970); Union Cty. Bd. of Freeholders v. Union Cty. Park Comm'n, 77 N. J. Super. 425, 431 (Law Div. 1962), rev’d on other grounds 41 N. J. 333 (1964). The facts clearly indicate that Garden State has the requisite interest in the subject matter of the ordinance to seek a declaration of its validity. Bergen Cty. v. Port of N. Y. Auth., 32 N. J. 303, 307 (1960); N. J. Home Builders Ass’n v. Div. on Civil Rights, 81 N. J. Super. 243, 251-252 (Ch. Div. 1963); Union Cty. Bd. of Freeholders v. Union Cty. Park Comm’n, supra, 77 N. J. Super, at 431. There is no question but that these jurisdictional requirements for invocation of the Declaratory Judgment Act have been satisfied.

In addition to these jurisdictional prerequisites N. J. S. A. 2A:16-56 calls for mandatory joinder of all parties in interest in a declaratory judgment suit:

When declaratory relief is sought, all persons having or claiming any interest which would be. affected by the declaration shall be made parties to the proceeding.

Defendants here include the mayor and commissioners of the Borough of Hawthorne; various residents of the borough given leave to intervene as parties defendant, and the borough itself. The mayor and commissioners are proper parties in their capacity as the officials in whom all governmental power of the municipality is vested. N. J. S. A. 40:72-2; Bd. of Trustees v. Union City, 112 N. J. Super. 484, 490 (Ch. Div. 1970), aff’d 116 N. J. Super. 186 (App. Div. 1971). Similarly, the borough is joined as a necessary and indispensable party to an action in which its zoning ordinance is attacked. Cobble Close Farm v. Middletown Tp. Bd. of Adj., 10 N. J. 442, 455 (1952); Mayor v. Montclair Bd. of Adj., 56 N. J. Super. 296, 301 (App. Div. 1959), rev’d on other grounds 32 N. J. 130 (1960). The intervenors are parties pursuant to the August 16, 1973 order of the assignment judge entered under authority of R. 4:33, which also joined the Division of Aeronautics as a nominal plaintiff. It thus appears that the parties interested in the subject matter of this action are properly joined in accordance with N. J. S. A. 2A:16-56 and that court action under the Declaratory Judgment Act is proper.

HI

Garden State advances two arguments in its attack on the validity of Ordinance No. 1223. Hirst, it contends that federal and state legislation have occupied the field in regulating aviation to the exclusion of local enactments. Second, it urges that, aside from the question of federal and state preemption, the ordinance violates the enabling statutes from which the municipality derives its local zoning authority. In both instances Garden State argues that the borough has gone beyond the scope of its powers in banning land use for aircraft take-offs and landings.

The Commerce Clause of the Constitution gives Congress pervasive power to regulate air traffic. U. S. Const., Art. I, § 8, cl. 3; City of Burbank v. Lockheed Air Terminal, Inc., 411 U. S. 624, 93 S. Ct. 1854, 36 L. Ed. 2d 547 (1973); American Airlines, Inc. v. Town of Hempstead, 272 F. Supp. 226 (E. D. N. Y. 1967), aff’d 398 F. 2d 369 (2 Cir. 1968), cert. den. 393 U. S. 1017, 89 S. Ct. 620, 21 L. Ed. 2d 561 (1969); American Airlines, Inc. v. City of Audubon Pk., Ky., 297 F. Supp. 207 (W. D. Ky. 1968), aff'd 407 F. 2d 1306 (6 Cir. 1969), cert. den. 396 U. S. 845, 90 S. Ct. 78, 24 L. Ed. 2d 95 (1969). The parameters of this authority are set out in the concurring opinion of Mr. Justice Jackson in Northwest Airlines, Inc. v. Minesota, 322 U. S. 292, 64 S. Ct. 950, 88 L. Ed. 1283 (1944), reh. den. 323 U. S. 809, 65 S. Ct. 26, 89 L. Ed. 645 (1944):

Congress has recognized the national responsibility for regulating air commerce. Federal control is intensive and exclusive. Planes do not wander about in the sky like vagrant clouds. They move only by federal permission, subject to federal inspection, in the hands of federally certified personnel and under an intricate system of federal commands. The moment a ship taxis onto a runway it is caught up in an elaborate and detailed system of controls. It takes off only by instruction from the control tower, it travels on prescribed beams, it may be diverted from its intended landing, and it obeys signals and orders. Its privileges, rights, and protection, so far as transit is concerned, it owes to the Federal Government alone and not to any state government. [322 U. S. at 303, 64 S. Ct. at 956, 88 L. Ed. at 1290]

In the Federal Aviation Act of 1958, 49 U. S. C. A. § 1301 et seq., Congress has provided a comprehensive federal scheme to deal with air commerce under the administrative auspicies of the F.A.A. and the Civil Aeronautics Board (C.A.B.). The scope of congressional action has been held to preempt local ordinances restricting air traffic because of excessive noise, City of Burbank v. Lockheed Air Terminal Inc., supra, 411 U. S. 624, 93 S. Ct. 1854, 36 L. Ed. 2d 547; American Airlines, Inc. v. Town of Hempstead, supra, 272 F. Supp. 226, and insufficient altitude of flight, American Airlines, Inc. v. City of Audubon Pk., Ky., supra, 297 F. Supp. 207; Allegheny Airlines v. Village of Cedarhurst, 132 F. Supp. 871 (E. D. N. Y. 1953), aff’d 238 F. 2d 812 (2 Cir. 1956); it also has forestalled state court action to enforce a contempt order for use of an airport runway extension, United States v. City of New Haven, 367 F. Supp. 1338 (D. Conn. 1973), aff'd 496 F. 2d 452 (2d Cir. 1974). There is little doubt in light of these cases that states and municipalities are without authority to regulate “any operation or navigation of aircraft within the limits of any Federal airway or any operation or navigation of aircraft which directly affects * * * interstate, overseas, or foreign air commerce.” 49 U. S. C. A. § 1301(4). See also Hanover Tp. v. Montclair, 108 N. J. Super. 461, 475-480 (Ch. Div. 1969), aff'd 121 N. J. Super. 536 (App. Div. 1972); Annotation, “Validity of municipal regulation of aircraft flight paths or altitudes," 36 A. L. R. 3d 1314 (1971).

Although state and local authority is preempted in the area of “operation and navigation of aircraft,” the extent of congressional preemption in related matters of aviation involving ground operations is not clear. Each case involving a preemption question “turns on the peculiarities and special features of the federal regulatory scheme in question.” City of Burbank v. Lockheed Air Terminal, Inc., supra, 411 U. S. at 638; 93 S. Ct. at 1862; 36 L. Ed. 2d at 556. A review of the scheme set out in the Federal Aviation Act of 1958 indicates that Congress did not endeavor to exclude state action in all areas relating to aeronautics. Sections 1324(b) and 1343 (i) of Title 49, U. S. C. A., call for cooperation by the C. A. B. and the Administrator of the F. A. A. with state and local aeronautical agencies. This represents an express recognition of the role of nonfederal authority in the aviation field. Sections 1348, 1349, 1350 and 1353 give the Administrator various powers to develop plans, expend funds and formulate policy to provide air facilities. However, these powers do not preclude local action in areas of proper airport regulation. Aircraft Owners & Pilots Ass’n v. Port Auth. of N. Y., 305 F. Supp. 93, 104-105 (E. D. N. Y. 1969); City of Winner v. Lineback, 86 S. D. 165, 192 N. W. 2d 705, 709 (Sup. Ct. 1971). Despite the comprehensive effect of federal regulation on air commerce, the states and localities retain power to regulate ground activities not directly involving actual aircraft operation.

Aside from the 1958 Act, the Airport and Airway Development Act of 1970, 49 U. S. C. A. § 1701 et seq., provides a basis for federal action in the area of air facility location and development. While the act requires federal approval as a condition for federal funding and thereby expands the concern of the Eederal Government and the role of the Secretary of Transportation in the area of airport construction, it does not preempt state authority to develop, construct and enlarge airports. Town of New Windsor v. Ronan, 329 F. Supp. 1286, 1290-1291 (S. D. N. Y. 1971), aff'd 481 F. 2d 450 (2d Cir. 1973); City of Boston v. Volpe, 464 F. 2d 254, 259 (1st Cir. 1972). The continued prominence of state authority is expressly noted in § 1716(b), which bars submission of project applications from municipalities if such submission is prohibited by state law. It emerges that by enacting the Airport and Airway Development Act of 1970 Congress intended to complement rather than preempt state power over air facility development. The overall scheme reflected in the 1958 act and the 1970 act does not impede the continued viability of state authority over ground-based aeronautic facilities.

The role of the State of New Jersey and. its municipalities in providing for the aviation needs of the population is well established. The State Constitution explictly authorizes acquisition of land for airports, a use which our Supreme Court has characterized as serving the “social needs of the times.” N. J. Const. (1947), Art. IV, § VI, par. 3; Aviation Services v. Hanover Tp. Bd. of Adj., 20 N. J. 275, 281 (1956). In a series of enactments the Legislature has provided for concomitant state and local action directed toward the development and operation of air facilities. The statutory program reveals the manner in which state and local authority is apportioned.

Title 6 of the Revised Statutes deals with aviation. N. J. S. A. 6:1-29 and 6:1-44 are relevant to the scope of state regulatory authority and read in pertinent part:

6:1-29. Powers and duties of the commissioner: adoption of rules, regulations and orders
Except as otherwise specifically provided by law, the Commissioner of Conservation and Economic Development shall promote progress and education in and shall have supervision over aeronautics loithin this State, including, but not by way of limitation, the avigation, flight and operation of aircraft, the establishment, location, maintenance, operation, size, design, repair, management omd use of airports, landing fields, landing strips, heliports and helistops, sport parachuting centers, air markings and other avigational facilities, and the establishment, operation, management and equipment of fixed base operators. The commissioner may adopt and promulgate reasonable rules, regulations and orders regulating air trafile and establishing minimum standards for aircraft, pilots, fixed base operators, airports, landing fields, landing strips, heliports and helistops, sport parachuting centers, air markings and all avigational facilities within the State and establishing minimum altitudes of flight commensurate with the needs of public safety, the safety of persons operating or using aircraft and the safety of persons and property on the ground, and to develop and promote aeronautics within this State. The commissioner shall have power to promulgate and adopt any reasonable rules and regulations that may be necessary to effectuate the purposes of this act in the interest of public safety and the development of aeronautics in this State.
6 :1-44. Licenses: airports, airport managements, fixed base operators, avigation facilities, temporary landing areas for rotary wing aircraft, provisions for
The commissioner shall provide for the licensing of airports, airport and landing field managements, landing fields, landing strips, fixed base operators or other avigation facilities and temporary landing areas for rotary wing aircraft by rules, regulations and orders adequate to protect the public health and safety and the safety of those participating in aeronautical activities * * * [Emphasis supplied] o

Under the Transportation Act of 1966, supra, the powers enumerated in the above-cited statutes are now vested in the Commissioner of Transportation (the Commissioner). N. J. S. A. 27:1A-3 and 4.

In challenging Ordinance No. 1223 Garden State contends that the italicized language of N. J. S. A. 6:1-29 preempts any local control over aeronautics, including the location of landing facilities. It reasons that the action of the Borough of Hawthorne in prohibiting such facilities frustrates the Legislature’s intention to place the control of aeronautics in the hands of the State and thus should be declared invalid.

The role of the court in construing any statute is to give effect to the legislative intention and purpose. State v. Carter, 64 N. J. 382, 390 (1974); N. J. Builders, Owners & Managers Ass’n v. Blair, 60 N. J. 330, 338 (1972); Jersey City Chapter Prop. Owners v. City Council, 55 N. J. 86, 100 (1969); Caputo v. The Best Foods, 17 N. J. 259, 264 (1955); Bradley v. Rapp, 132 N. J. Super. 429, 433 (App. Div. 1975). In the case of N. J. S. A. 6:1-29, the purpose against which the section is to be tested is set out in N. J. S. A. 6:1 — 20:

The purpose of this act is to provide in the interest of public safety and of aeronautic progress for the regulation of aeronautics in and over this State; to require that aircraft, airports, airport managements, landing fields, landing strips, and other avigational facilities, airmen, ground personnel and all persons engaged in aeronautics within or over this State, shall conform to standards of safety and sound practice as prescribed by the laws of this' State and any rules or regulations thereunder, and for uniformity in certain regards with the laws, rules and regulations of the United States Government.

Reading this statement in conjunction with N. J. S. A. 6: 1-29, it is clear that the Legislature intended that control in the areas of public safety and aeronautical development remain within the Department of Transportation. Authority in the safety area is implemented by the licensing power bestowed on the Commissioner in N. J. S. A. 6 :1-44. However, the act does not clarify whether or the extent to which state control in supervision and development of aeronautics precludes local land-use power over location of facilities. This uncertainty leads to the question of whether the act should be viewed as preempting local action in this area.

In determining if a statutory scheme precludes local action the court must ascertain whether the Legislature “intended to immobolize the municipalities from dealing with local aspects otherwise within their power to act.” Summer v. Teaneck, 53 N. J. 548, 555 (1969). To that end a liberal construction is given to legislation favoring local action. N. J. Const. (1947), Art. IV, § VII, par. 11. In Kennedy v. Newark, 29 N. J. 178 (1959), where the court reversed a Law Division decision invalidating a Newark ordinance which required municipal employees to reside in the city as a condition for continuing employment, Chief Justice Weintraub identified the perspective which should be taken in analyzing legislative intent:

* * * The action thus taken is wholly consistent with the thesis that the area not covered by legislation shall be left to local determination upon the principal of home rule. Had the Legislature intended to restrain local action, the more likely course would have been to express that purpose. Before it can be said that the police power delegated to local government must remain inert, it must be clear that the Legislature intended to occupy the field or declared a policy at war with the decision made by local government. The delegated power may not be restrained upon the basis of speculation or dubious inference * * [at 187]

See also, Chester Tp. v. Panicucci, 62 N. J. 94 (1973); State v. Ulesky, 54 N. J. 26 (1969); Summer v. Teaneck, supra, 53 N. J. 548; Masters-Jersey, Inc. v. Paramus, 32 N. J. 296 (1960).

Considering N. J. S. A. 6:1-29 in light of the above-cited rule of construction, it is the opinion of this court that local zoning power is not preempted by granting the Commissioner “supervision over aeronautics within this State.” The expressed statutory purpose to promote progress and development in aeronautics does not necessarily mean that a municipality be precluded from determining whether or not airport facilities should be constructed within its boundaries. To impute such a meaning to N. J. S. A. 6:1-29 would be to engage in the type of “speculation or dubious inference” expressly disapproved in Kennedy v. Newark, supra, and would run contrary to the constitutional mandate favoring broad local power. Accord, Boublis v. Garden State Farms, Inc., supra, 122 N. J. Super. 208; Ridgewood Air Club v. Ridgewood Bd. of Adj., 136 N. J. L. 222 (Sup. Ct. 1947); Yoemans v. Hillsborough Tp., 135 N. J. L. 599 (Sup. Ct. 1947).

An even more compelling reason for finding no preemption is the fact that elsewhere in the statutes the Legislature has vested municipalities with power over land use for airports. N. J. S. A. 40:8-1 and 40:8-2 explicitly grant localities the authority to initiate and pursue development of air facilities:

40:8-1. Acquisition and use of lands for airports; lease to others The governing body of any county and the governing body of any municipality, or either of them, may acquire by gift, grant, purchase, condemnation or in any other lawful manner real estate or any right or interest therein for airport purposes and so use lands theretofore acquired for other public purposes and being used for airport purposes and erect thereon and maintain buildings for the airport purposes.
* * •> * -f>:*••# *
40:8-2. Municipal airports; general powers
The governing body of any municipality may acquire, establish, construct, own, control, lease, equip, improve, maintain, operate and regulate airports or landing fields for the use of airplanes and other aircraft within or without the limits of such municipality and may use for such purpose or purposes and property, owned or controlled by such municipality suitable, therefor.

In attempting to discover legislative intention in any law it is proper to consider other laws which pertain to the same subject matter. Key Agency v. Continental Cas. Co., 31 N. J. 98, 103 (1959); Brewer v. Porch, 53 N. J. 167 (1969); Kingsley v. Wes Outdoor Advertising Co., 55 N. J. 336 (1970). It is evident that in N. J. S. A. 40:8-1 and 40:8-2 the Legislature intended to give municipalities an active role in establishing airports. Presumably the Legislature was familiar with N. J. S. A. 40:8 — 1 (L. 1928, c. 181, § 1, as amended by L. 1929, c. 26, § 2) and 40:8-2 (L. 1929, c. 325, § 1, as amended by L. 1947, c. 85, § 1) when it enacted N. J. S. A. 6:1-20 (L. 1938, c. 48, § 1) and 6:1-29 (L. 1938, c. 48, § 10, as amended by L. 1952, c. 201, § 2, and L. 1966, c. 100, § 1) since the former provisions predated the latter. N. J. State P. B. A. v. Morristown, 65 N. J. 160, 166 (1974) ; Brewer v. Porch, supra, 53 N. J. at 174; Matawan v. Monmouth Cty. Tax Bd., 51 N. J. 291, 299-300 (1968). Statutes in pari materia are to be construed together in ascertaining legislative intent. Mimkon v. Ford, 66 N. J. 426, 433-434 (1975); State v. Green, 62 N. J. 547, 554-555 (1973). When N. J. S. A. 6:1-20 and 6:1-29 are considered along with N. J. S. A. 40:8-1 and 40:8-2 it becomes apparent that the Legislature did not intend to preempt local land use control for airports. By the same token, the 1966 Transportation Act (L. 1966, c. 301, § 1 et seq., as amended) does not displace the permissive local authority granted in N. J. S. A. 40:8-1 and 2. Even without the rules of construction cited above, the first sentence of N. J. S. A. 6:1-29 would appear to compel consideration of N. J. S. A. 40:8-1 and 2 in adducing legislative intent. For these reasons the court concludes that the present statutory scheme in the field of aeronautics gives municipalities authority over land use for airports and therefore does not preempt local zoning activity in that area.

In the testimony of Gerard and argument of plaintiff’s counsel various practical arguments were advanced for the proposition that the Department of Transportation should have full control over land use for airport facilities. Their basic contention was that the entire thrust of aeronautic development in the State could be thwarted if localities are able to individually zone for airport use. To illustrate the need for State control Gerard made reference to the “State Airport Development Plan, 1970-1990” prepared for the Division of Aeronautics, which the court has had an opportunity to study. Evid. R. 9(2) (e). While 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. Until such a decision is expressed the court must enforce the legislative will as written. Dacunzo v. Edgye, 19 N. J. 443, 451 (1955); Schmoll v. Creecy, 104 N. J. Super. 126, 138 (App. Div. 1969), rev’d on other grounds 54 N. J. 194 (1969). In this case that means that the Borough of Hawthorne may zone to control land use for airport facilities.

IY

The fact that the borough has the power to zone for airport facilities does not in itself establish the validity of Ordinance Ho. 1223. As an exercise of its police power derived from the State the municipality’s action must conform to the standards set out in the enabling statutes. N. J. Const. (1947), Art. IV, § VI, par. 2; Inganamort v. Ft. Lee, 62 N. J. 521 (1973); Kohl v. Fair Lawn Mayor and Council, 50 N. J. 268, 275 (1967); Morris v. Postma, 41 N. J. 354, 359 (1964). N. J. S. A. 40:48-2 gives municipalities broad authority to- enact ordinances “for the preservation of the public health, safety and welfare of the municipality and its inhabitants.” This regulatory power is expressly extended to regulation of land use by N. J. S. A. 40:55 — 30. The purposes of zoning legislation and its essential considerations are set out in N. J. S. A. 40:55-32:

Such regulations shall be in accordance with a comprehensive plan and designed for one or more of the following purposes: to lessen congestion in the streets; secure safety from fire, flood, panic and other dangers; promote health, morals or the general welfare; provide adequate light and air; prevent the overcrowding of land or buildings; avoid undue concentration of population. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view of conserving the value of property and encouraging the most appropriate use of land throughout such municipality.

Validity of the ordinance in question depends upon whether it is consistent with the requirements and reasonably serves the ends identified in these statutes.

The party attacking a zoning ordinance has the burden of affirmatively showing that it bears no reasonable relationship to any of the purposes for which the zoning power is granted. He must prove that the ordinance is arbitrary or unreasonable. Harvard Ent., Inc. v. Madison Tp. Bd. of Adj., 56 N. J. 362, 368 (1970); Barone v. Bridgewater Tp. 45 N. J. 224, 226 (1965); Morris v. Postma, supra, 41 N. J. at 359; Vickers v. Gloucester Tp. Comm., 37 N. J. 232, 242 (1962), cert. den. 371 U. S. 233, 83 S. Ct. 326, 9 L. Ed. 2d 495 (1963). The burden is a heavy one in view of the presumption in favor of an ordinance’s validity and reasonableness. Collingswood v. Ringgold, 66 N. J. 350, 358 (1975); Harvard Ent., Inc. v. Madison Tp., supra, 56 N. J. at 368; Moyant v. Paramus, 30 N. J. 528, 534 (1959). This presumption and the nature of the judicial role limit the court’s power in reviewing a zoning enactment, as indicated in Kozesnik v. Montgomery Tp., 24 N. J. 154 (1957):

The zoning statute delegates legislative power to local government. The judiciary of course cannot exercise that power directly, nor indirectly by measuring the policy determination by a judge’s private view. The wisdom of legislative action is reviewable only at the polls. The judicial role is tightly circumscribed. We may act only if the presumption in favor of the ordinance is overcome by a clear showing that it is arbitrary or unreasonable, [at 167]

It is necessary to apply these principles to all the facts and circumstances surrounding adoption of Ordinance No. 1223 to test its validity. Harvard Ent. Inc., v. Madison Tp. Bd. of Adj., supra, 56 N. J. at 369; Bogert v. Washington Tp., 25 N. J. 57, 62 (1957).

The statutory basis for zoning regulations found in N. J. S. A. 40:55-32 requires that any ordinance promote public health, safety, morals or the general welfare. So. Burl. Cty. N. A. A. C. P. v. Mt. Laurel Tp., 67 N. J. 151, 175 (1975); Delawanna Iron & Metal Co. v. Albrecht, 9 N. J. 424, 429 (1952); Cresskill v. Dumont, 28 N. J. Super. 26, 40 (Law Div. 1953), aff’d 15 N. J. 238 (1954). In the case of land use for aeronautics the area of public safety is preempted by state control. N. J. S. A. 6 :1-20, 6 :1-29 supra. Since neither public morals nor public health are relevant to enactment of Ordinance No. 1223, the ordinance must serve the general welfare if it is to come within the scope of the enabling act.

The term “general welfare” is undefined in N. J. S. A. 40:5 5-32 but has been given an expansive meaning by our courts. So. Burl. Cty. N. A. A. C. P. v. Mt. Laurel Tp., supra, 67 N. J. at 175; Gruber v. Raritan Tp. Mayor and Tp. Comm., 39 N. J. 1, 9 (1962); Pierro v. Baxendale, 28 N. J. 17, 28 (1955). In Lionshead Lake v. Wayne Tp., 10 N. J. 165 (1952), app. dism. 344 U. S. 919, 73 S. Ct. 386, 97 L. Ed. 708 (1953), the court (at 172) expressed this breadth by noting that “so long as the zoning ordinance was reasonably designed, by whatever means, to further the advancement of a community as a social, economic and political unit, it is in the general welfare and therefore a proper exercise of the zoning power.” The sense of the term is that the ordinance provide for the well-being of the community and its residents and their way of life.

Measured against this standard, Ordinance Ho. 1223 serves the general welfare of the Borough of Hawthorne. In the opinion of Mayor Bay and the commissioners the taking off and landing of aircraft within the borough would be disruptive to the community. In a highly developed municipality with a dense population living in residential areas interspersed among industrial and commercial zones, it is not unreasonable that the board of commissioners con-eluded that air facilities would adversely affect the quality of life in the Borough. Although an airport is not a nuisance per se, Hyde v. Somerset Air Service, 1 N. J. Super. 346, 351 (Ch. Div. 1948); Schantz v. Rachlin, 101 N. J. Super. 334, 345 (Ch. Div. 1968), aff’d 104 N. J. Super. 154 (App. Div. 1969); Boublis v. Garden State Farms, Inc., supra, 122 N. J. Super, at 217, it “may become a nuisance if conducted in such an offensive manner as to interfere unreasonably with the general standard of comfort of neighboring property owners.” Hyde v. Somerset Air Service, supra, 1 N. J. Super, at 351. Apparently the municipal officials concluded that such a result was inevitable in their community and zoned to avoid it. The record does not disclose a basis upon which to find this conclusion unreasonable or arbitrary. Thus, Garden State has not sustained its burden of proof and the ordinance should not be overturned.

It should be noted that this holding is reached on the specific facts of this case and is not intended to import general approval of restrictive zoning against airports. Indeed, in Aviation Services v. Hanover Tp. Bd. of Adj., supra, 20 N. J. 275, Justice Burling, in discussing N. J. S. A. 40:8 — 2, supra, makes it clear that zoning prohibitions against airport development should be closely scrutinized:

* * We cannot ascribe a vain and impotent meaning to the statute. If the purposes sought to be achieved are to bo thwarted by zoning plans which arbitrarily exclude airport uses from an entire municipal domain the progress envisioned by the Legislature and stimulated by this statute may go unrecognized. :i' * * [20 N. J. at 283; emphasis supplied]

Since the exclusionary action taken in Hawthorne was not arbitrary, the instant ease does not fall within the language of Aviation Services. Each case in which a municipality bars air facilities must be judged on its particular facts to determine if the local action is arbitrary and should be invalidated.

Garden State makes a final argument that Ordinance Ho. 1223 was not enacted pursuant to a “comprehensive plan” as required by the enabling statute. Such a plan is an integrated product of a rational process going beyond a piecemeal approach to land-use and may be reflected in the ordinance itself. It is mutable and may be amended so long as the final result continues to reveal a comprehensive plan. Kozesnik v. Montgomery Tp., supra, 24 N. J. at 166-167; Johnson v. Montville Tp., 109 N. J. Super, 511, 519-521 (App. Div. 1970). Ordinance Eo. 1175 of the borough reflects such a plan and the amendment to it by Ordinance Eo. 1223 in no way alters that character. The ordinance thus complies with N. J. S. A. 40:55 — 32, supra.

Y

Eo proof has been offered to indicate any impropriety by the mayor and commissioners in adopting the ordinance. Pursuant to the rules of law discussed previously, the court is unwilling to speculate on the thoughts of the municipal officials to ascertain any hidden motivation beyond a concern for the welfare of the community testified to by Mayor Bay. The fact that the Borough of Hawthorne has authority to regulate land use for airport facilities under the current statutory scheme and has used its zoning power in accordance with the standards set down by the Legislature compels the courts to hold that Ordinance Eo. 1223 is a valid amendment to the Borough’s zoning ordinance. The complaint, therefore, is dismissed.