B-166505, AUG. 7, 1969

B-166505: Aug 7, 1969

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TOWNSHIP HAS NOT PRESENTED ANY EVIDENCE TO OVERCOME FACTS FURNISHED BY FEDERAL AVIATION ADMINISTRATION INDICATING THAT SMALL PORTION OF LAND WILL BE USED FOR WATER DEPARTMENT PURPOSES AND THAT FEDERAL FUNDS WILL NOT PARTICIPATE IN ACQUISITION OF THAT PORTION. YOU STATE THAT: "* * * WE ARE PARTICULARLY CONCERNED BY YOUR FINDINGS WITH REGARD TO THE MORRISTOWN WATER DEPARTMENT OPERATION ON THE AIRPORT LANDS. YOU HAVE CONCLUDED. YOU HAVE ALSO INDICATED THAT THE UNITED STATES WILL NOT BE PARTICIPATING IN THE ACQUISITION OF THAT PORTION OF THE LANDS.'. IT IS YOUR VIEW THAT WE ARE IN ERROR AND SHOULD INVESTIGATE FULLY THE FACTS INVOLVED. THERE IS NO QUESTION BUT THAT AN EXCESS OF ONE HUNDRED ACRES OF THE AIRPORT LANDS ARE DEVOTED TO WATER DEPARTMENT USAGE.

B-166505, AUG. 7, 1969

AIRPORTS - FEDERAL PARTICIPATION IN LAND ACQUISTION COSTS DECISION TO TOWNSHIP OF HANOVER, N.J. CONCERNING UNITED STATES PARTICIPATION IN LAND ACQUISITION COSTS FOR AIRPORT PURPOSES. TOWNSHIP HAS NOT PRESENTED ANY EVIDENCE TO OVERCOME FACTS FURNISHED BY FEDERAL AVIATION ADMINISTRATION INDICATING THAT SMALL PORTION OF LAND WILL BE USED FOR WATER DEPARTMENT PURPOSES AND THAT FEDERAL FUNDS WILL NOT PARTICIPATE IN ACQUISITION OF THAT PORTION.

TO TOWNSHIP OF HANOVER:

YOUR LETTER OF JULY 1, 1969, REFERS TO OUR LETTER OF JUNE 5, 1969, B 166505, TO YOU, CONCERNING THE ABOVE-CAPTIONED MATTER. YOU STATE THAT: "* * * WE ARE PARTICULARLY CONCERNED BY YOUR FINDINGS WITH REGARD TO THE MORRISTOWN WATER DEPARTMENT OPERATION ON THE AIRPORT LANDS. APPARENTLY, YOU HAVE CONCLUDED, BASED UPON FACTS REPRESENTED TO YOU BY MORRISTOWN, THAT THIS REPRESENTS A VERY MINOR PART OF THE LANDS INVOLVED. YOU HAVE ALSO INDICATED THAT THE UNITED STATES WILL NOT BE PARTICIPATING IN THE ACQUISITION OF THAT PORTION OF THE LANDS.'

IT IS YOUR VIEW THAT WE ARE IN ERROR AND SHOULD INVESTIGATE FULLY THE FACTS INVOLVED, SINCE -- ACCORDING TO YOUR LETTER -- THERE IS NO QUESTION BUT THAT AN EXCESS OF ONE HUNDRED ACRES OF THE AIRPORT LANDS ARE DEVOTED TO WATER DEPARTMENT USAGE. YOU STATE THAT THIS IS PARTICULARLY IMPORTANT BECAUSE THE SAME MISAPPREHENSION APPEARS TO BE REPEATED IN A LETTER DATED MAY 20, 1969, SIGNED BY MR. MARTIN J. WHITE, REGIONAL COUNSEL, FEDERAL AVIATION ADMINISTRATION. YOU REQUEST THAT WE ADVISE YOU AS TO OUR INTENTIONS IN THIS MATTER.

THE INFORMATION AND ADVICE SET FORTH IN OUR LETTER OF JUNE 5, 1969, TO YOU, WAS FURNISHED US BY THE FEDERAL AVIATION ADMINISTRATION AND NOT BY "MORRISTOWN," AND WE SO INDICATED THEREIN. FURTHER, WE DID NOT CONCLUDE THAT THE MORRISTOWN WATER DEPARTMENT OPERATION ON THE AIRPORT LANDS REPRESENTS A VERY MINOR PART OF THE LANDS INVOLVED. RATHER IN OUR LETTER WE STATED, INSOFAR AS PERTINENT HERE, THAT:

"AS TO THE SPECIFIC QUESTIONS RAISED IN THE ENCLOSURES, IT APPEARS FROM THE RECORD BEFORE US THAT FAA HAS REVIEWED THE APPLICATION SUBMITTED BY THE WATER DEPARTMENT OF THE TOWN OF MORRISTOWN AND HAS UNDERTAKEN FURTHER INVESTIGATION TO DETERMINE THE FACTS WITH RESPECT TO THE PROPOSED WATER SYSTEM, TO CONSIST OF WELLS, PUMP HOUSES, AND A TREATMENT PLANT, TOGETHER WITH ASSOCIATED EQUIPMENT, ACCESS ROAD, AND PIPELINES.

"FAA ADVISES THAT SUCH WATER SYSTEM WILL BE LOCATED UPON A SMALL PORTION OF A TRACT OF LAND ACQUIRED FROM THE ESTATE OF LLOYD W. SMITH, LYING TO THE NORTHWEST OF, AND, IN PART, ABUTTING ON THE NORTHWESTERLY SIDE OF BLACK BROOK; THAT ALL OF THE SAID SMITH ESTATE LAND TO BE USED FOR THE WATER SYSTEM, WILL BE EXCLUDED FROM THE DEFINED AIRPORT BOUNDARIES; AND THAT THE UNITED STATES WILL NOT PARTICIPATE IN THE PROPORTIONATE SHARE OF LAND ACQUISITION COSTS ATTRIBUTABLE TO SUCH EXCLUDED LAND.

"ACCORDING TO FAA, THE UNITED STATES WILL PARTICIPATE IN THE PROPORTIONATE SHARE OF LAND ACQUISITION COSTS FOR THE REMAINDER OF THE SMITH ESTATE LAND, WHICH WILL BE NEEDED FOR AIRPORT PURPOSES AND WILL BE SHOWN WITHIN AIRPORT BOUNDARIES. THE WATER DEPARTMENT WILL BE ALLOWED RIGHTS OF WAY ACROSS PART OF THIS LAND TO CONSTRUCT AND MAINTAIN CONNECTING LINKS OF ITS ACCESS ROAD AND PIPELINES WHERE THEY WILL CROSS AIRPORT LAND ACQUIRED FOR APPROACH PROTECTION TO RUNWAY 30. SUCH RIGHTS OF WAY WILL BE COMPATIBLE WITH RUNWAY PROTECTION AND WILL RUN ALONG AND WITHIN 100 FEET OF THE NORTHWESTERLY SIDE OF BLACK BROOK FOR A DISTANCE OF ABOUT 1,000 FEET, EXTENDING 500 FEET TO EACH SIDE OF THE EXTENDED CENTERLINE OF RUNWAY 30.'

IT APPEARS FROM THE FOREGOING THAT THE WATER SYSTEM, I.E., THE WELLS, PUMP HOUSES, TREATMENT PLANT, ETC., WILL BE LOCATED ON A SMALL PORTION OF A TRACT OF LAND; THAT THE LAND TO BE USED FOR THE WATER SYSTEM WILL BE EXCLUDED FROM THE AIRPORT BOUNDARIES; AND THAT FEDERAL GRANT FUNDS WILL NOT PARTICIPATE IN THE PROPORTIONATE SHARE OF LAND ACQUISITION COSTS ATTRIBUTABLE TO SUCH EXCLUDED LAND. IT FURTHER APPEARS, HOWEVER, THAT THE WATER DEPARTMENT WILL BE ALLOWED "RIGHTS OF WAY" I.E., IN EFFECT, AN EASEMENT) ACROSS AIRPORT LANDS TO CONSTRUCT AND MAINTAIN CONNECTING LINKS OF ITS ACCESS ROAD AND PIPELINES BUT THAT SUCH "RIGHTS OF WAY" WILL BE COMPATIBLE WITH RUNWAY PROTECTION. THE FACT THAT THE MORRISTOWN WATER DEPARTMENT MAY BE ALLOWED "RIGHTS OF WAY" ACROSS AIRPORT LANDS DOES NOT REQUIRE THE CONCLUSION THAT SUCH LANDS ARE "DEVOTED TO WATER DEPARTMENT USAGE," SINCE APPARENTLY THE "AIRPORT LAND" IS NEEDED FOR, AND WILL BE USED PRIMARILY FOR, AIRPORT PURPOSES.

IN ANY EVENT, IT IS THE ESTABLISHED RULE OF OUR OFFICE TO ACCEPT THE REPORT OF THE ADMINISTRATIVE OFFICE (IN THIS CASE FAA) IN DISPUTED QUESTIONS OF FACT IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF. WHILE YOU STATE YOU BELIEVE WE ARE IN ERROR AS TO THE AMOUNT OF LAND DEVOTED TO WATER DEPARTMENT USAGE AND AS TO THE PARTICIPATION OF THE UNITED STATES IN THE ACQUISITION OF THAT PORTION OF THE LANDS TO BE USED ENTIRELY FOR THE WATER SYSTEM, YOU HAVE PRESENTED NO EVIDENCE IN SUPPORT OF YOUR BELIEF, EITHER IN YOUR LETTER OF MAY 15, 1969, OR IN YOUR INSTANT LETTER.

IN LIGHT OF THE FOREGOING WE DO NOT PLAN TO TAKE ANY FURTHER ACTION 2N THE MATTER.