Johnsons file lawsuit calling for appeal of helistop denial in Tewksbury, New Jersey

TEWKSBURY TWP. - James Johnson has filed a lawsuit in Superior Court in Flemington calling for the appeal of the Land Use Board's decision to deny a helistop for his family's 2,000-acre farm, located on Homestead Road in Oldwick.

The lawsuit argues that the board's findings used in reaching its decision were "unreasonable, arbitrary and capricious" and that the denial is "tainted" due to the board's "lack of quasi-judicial demeanor in this matter."

Following 19 months of hearings, in May the board denied the application filed by the Johnson family, of Johnson and Johnson health products fame, for a helistop in a 4-3 decision. The case stirred significant controversy in the community; more than 40 area residents took to the podium during the public portion of the hearings, with a slight majority speaking out against the proposal.

Last month, the Johnsons filed an application for a helistop license with the state Department of Transportation. In a 2-1 decision, the Tewksbury Township Committee agreed to submit comments in opposition to the application, with committee members Shaun Van Doren and William Voyce voting "yes" and Committeeman Peter Melick voting "no." Mayor Dana Desiderio was asked to recuse herself from the vote and Committeeman Louis Di Mare was absent.

In the lawsuit, filed by the Johnsons' attorney, Miles Winder, on Oct. 5, the plaintiff argues that several board members' recusal from the case was unnecessary, and their absence from hearing the case unfavorably impacted the Johnsons' application.

The complaint also argues that the helistop would be located far from neighboring homes and that trials proved that noise from a landing or departing aircraft would have little to no affect on area residents. The board made an "erroneous determination" by including excessive noise generated by the helicopter as a factor in its decision, Winder argues, especially because board members were preempted from basing their decision on noise by a federal limitation.

Also erroneous was the board's reliance on "materially flawed" testimony from non-expert witnesses opposed to the stop, the complaint maintains.

The lawsuit is particularly critical of board Attorney Dan Bernstein and board Chairman Blake Johnstone. Winder maintains the two prevented him from asking hypothetical questions about the impact of the helicopter's flight path, which the Johnsons promised would always come from the south over their own land so as not to disturb neighbors, "because they knew that the answer would be that there would be no impact on the surrounding neighborhood."

In addition, the board attorney and chairman demonstrated an "adversarial demeanor" to the plaintiff throughout the course of hearings, the lawsuit maintains.

Even then, the township does not technically have authority to regulate aircraft and landing sites, according to the complaint. Rather, that authority lies at the state and federal levels, Winder writes.

Finally, Winder argues that the board's determination that, because the farm has few foreign buyers, the helistop would not significantly benefit the farm's cow and cattle embryo business is flawed -- the farm would have more buyers if it had a helistop, he says.

"To not permit a farmer to attempt to earn a living by selling cattle embryos to foreign (and domestic) buyers for income that could be in the millions is to deny the farmer the right to make the farm profitable and earn a living," the attorney writes.

He adds, "A profitable farm is a self-sustaining farm and inures to the protection and preservation of farmland. Clearly, the best program for farmland preservation is to have profitable farms."

The deadline for submitting comments on the Johnsons’ DOT helistop application to the state agency is tomorrow, Oct. 12. Should the DOT receive enough comments and deem the application a “contested case,” it may schedule a public hearing on the issue in the future.

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