Petition for Writ of Certiorari — Faux-Burhans v. Board of County Commissioners

88-910 ")

SUPreNe Cour, US.

In The FILED

DEC 2 1988

Supreme Court of the Anite tates,

CLER®

i

October Term, 1988

AMOS D. FAUX-BURHANS,

Petitioner,

vs.

BOARD OF COUNTY COMMISSIONERS OF FREDERICK

COUNTY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

PAUL VICTOR JORGENSEN

Attorney for Petitioner

P.O. Box 850

215 West Main Street

Middletown, Maryland 21769

(301) 293-2212

“TTs0

*NJ (201) 257-6850(800) 3 APPEAL «NY (212) 840-4640°MA (617) 542-1114

OC (202) 783-7288°PA (215) 925-6500°USA (800) 5 APPEAL

Petitioner Amos D. Faux-Burhans re-

spectfully prays that a writ of certiora-

ri issue to review the judgment and

opinion of the United States Court of

Appeals for the Fourth Circuit entered in

this proceeding on September 9, 1988.

Question Presented

Does the Federal Aviation Act of

1958, as amended, preempt a local

government from exercising its police

powers to enact zoning restrictions on

the use of navigable airspace at a

private airport?

TABLE OF CONTENTS

Questions Presented

Table of Contents

Table of Authorities

Opinions Below

Jurisdiction

Statutory Provisions

Statement of the Case

Reasons for Granting the

Writ j

1) The Fourth Circuit's

Holding That Federal Law

Does Not Preempt Zoning of

Navigable Airspace by A

Local Government Conflicts

With Decisions of the Courts

of Appeals of the Second,

Ninth, and Eleventh Circuits

2) The Court of Appeals

Has Decided An Important

Federal Question In Conflict

With Applicable Decisions

of This Honorable Court

3) The Court of Appeals

Has Decided An Important

Question of Federal Law In

a Way That Could Lead To

Disaster in the Skies and

Frustration of Congressional

Purpose

ii

28

Conclusion

Appendices

Appendix A: Decision

of the United States

Court of Appeals for

the Fourth Circuit

Appendix B: Memorandum

Opinion of the United

States District Court

for the District of

Maryland

Order and Judgment

Appendix C: Denial of

Petition for Rehearing

with Suggestion for

Rehearing In Banc

Appendix D: Frederick

County Zoning Ordinance

Section 1-19-381

Certificate of Service

iii

A-1 to A-6

B-l1 to B-13

B-14 to B-15

C-1 to C=-2

D=-1 to D=-2

TABLE OF AUTHORITIES

A. Table of Cases

Case Reference

Allegheny Airlines v.

Village of Cedarhurst,

2738 F. 2d 812 (od Cir.

1956) 11,16

American Airlines, Inc.

v. Town of Hempstead,

72 F. Supp. 226, 232

(EDNY 1967) 11,15,16,17

Burbank v. Lockheed Air

Terminal, 411 U.S. 624

(1973) 20,25,26

Faux-Burhans v. Board of

County Commissioners, 674 F.

Supp. 1172 (1987) ; 1

Lockheed Air Terminal,

Inc. v. City of Burbank,

318 F. Supp. 914, 921

(CD Calif., 1970) 11,15,17

Northwest Airlines v.

Minnesota, 322 U.S. 292

(1944) 23

Pirolo v. City of Clear-

water, 711 F. 2d 1006

(llth Cir. 1983) 10,21

San Diego Unified Port

District v. Gianturco, .

651 F. 2d 1306 (9th Cir.

1981) 10,21

iv

Schneideman v. ANR Pipe-

line Company, 56 USLW 4249

4254 (March 22, 1988) 29

United States v. Causby,

328 U.S. 256 (1946) 24

United States v. New

Haven, 447 F. 2d 972

(2nd Cir. 1971) 10,18,21

B. Statutory Authorities

Statute Reference

14 C.F.R. Part 157 13

28 U.S.C. § 1254(1) ei

28 U.S.C. § 1331 8

‘28 U.S.C. § 1343 8

42 U.S.C. § 1983 8

49 U.S.C.S. Appx. § 1301 2,14

49 U.S.C.S. Appx. § 1303 29

49 U.S.C.S. Appx. § 1304 3,11,14,29

49 U.S.C.S. Appx. § 1348 3,12,13,22

49 U.S.C.S. Appx. § 1350 $,i3

49 U.S.C.S. Appx. § 1508 6,11,13-14

U. S. Constitution,

Article VI. 1

Cc. Other Authorities

Authority Reference

H.R. 2360, U.S. Code Cong.

& Admin. News, 85th

Cong., 2d Sess., Vol. 2,

pp. 3741-2 (1958) 12

H.R. Report No. 572, 69th

Cong. lst Sess., p. 10 ° 15

vi

Opinions Below

The opinion of the Fourth Circuit

(Appx. A, pp. A-1 to A-6) is unpublished.

The opinion and judgment of the United

State District Court for the District of

Maryland (App. B, pp. B-1 to B-15) are

published as Faux-Burhans v. Board of

County Commissioners, 674 F. Supp. 1172

(1987).

Jurisdiction

The United States Court of Appeals

for the Fourth Circuit entered its

opinion on September 9, 1988, and denied

Mr. Faux-Burhans' petition for reconsid-

eration on October 7, 1988. (App. C, pp.

C-1 to C=-2) This Honorable Court has

jurisdiction under 28 U.S.C. § 1254(1).

Statutory Provisions

U. S. Constitution, Article VI. Clause

2. Supreme law.

This Constitution, and the Laws of

the United States which shall be made in

Pursuance thereof; and all Treaties made,

or which shall be made, under the Author-

ity of the United States, shall be the

supreme Law of the Land; and the Judges

in every State shall be bound thereby,

any Thing in the Constitution or Laws of

any State to the Contrary notwithstand-

ing.

49 U.S.C.S. Appx. § 1301. Definitions.

a a

(5) “Aircraft” means any contrivance now

known or hereafter invented, used, or

designed for navigation of sr flight in

the air.

a a

(29) “Navigable airspace” means airspace

above the minimum altitudes of flight

prescribed by regulations issued under

this Act,. and shall include airspace

needed to insure safety in takeoff and

landing of aircraft.

2.93.3

49 U.S.C.S. Appx. § 1304. Public right

of transit.

There is hereby recognized and declared

to exist in behalf of any citizen of the

United States a public right of freedom

of transit through the navigable airspace

of the United States.

Se 2 2 @

49 U.S.C.S. Appx. § 1348. Airspace

control and facilities.

(a) Use of airspace. The Administrator

is authorized and directed to develop

plans for and formulate policy with

respect to the use of the navigable

airspace; and assign by rule, regulation,

Or order the use of the navigable air-

space under such terms, conditions, and

limitations as he may deem necessary in

order to insure the safety of aircraft

and the efficient utilization of such

airspace. He may modify or revoke such

assignment when required in the public

interest.

e- 2.82. a

(c) Air traffic rules. The Administrator

is further authorized and directed to

prescribe air traffic rules and regula-

tions governing the flight of aircraft,

for the ‘navigation, protection, and.

identification of aircraft, for the

protection of persons and property on the

ground, and for the efficient utilization

of the navigable airspace, including

rules as to safe altitudes of flight and

rules for the prevention of collision

between aircraft, between aircraft and

land or water vehicles, and between

aircraft and airborne objects.

os @ 3

49 U.S.C.S. Appx. § 1350. Establishment

or construction of airports and landing

areas not involving expenditure of

Federal funds.

In order to assure conformity to plans

and policies for, and allocations of,

airspace by the Administrator under

section 307 of this Act [49 U.S.C.S. §

1348], no airport or landing area not

involving expenditure of Federal funds

shall be established, or constructed, or

any runway layout substantially altered

unless reasonable prior notice thereof is

given the Administrator, pursuant to

regulations prescribed by him, so that he

may advise as to the effects of such

construction on the use of airspace by

aircraft.

2 2

49 U.S.C.S. Appx. § 1508. Declaration of

national sovereignty in air space;

operation of foreign aircraft.

(a) The United States of America is

hereby declared to possess and exercise

complete and exclusive national sover-

eignty in the airspace of the United

States, including the airspace above all

inland waters and the airspace above

those portions of the adjacent marginal

high seas, bays, and lakes, over which by

international law or treaty or convention

the United States exercises national

jurisdiction.

Statement of the Case

Petitioner Amos D. Faux-Burhans'

airport is located on a 125 acre parcel

in a rural part of Frederick County,

Maryland. In 1977 Respondent Board of

County Commissioners of Frederick County

(referred to as "Frederick County")

enacted a zoning ordinance containing a

special exception for an “aircraft

landing and storage area” in agricultur-

ally zoned districts. This exception

restricted the user of a landing area to

its owner and two aircraft, required a

Minimum clear zone, limited the type of

aircraft that could use it, and prohibit-

ed use of the airfield for training or

instruction. (Appx. D, pp. D-l to D-2)

At the time Frederick County enacted

this ordinance, Mr. Faux-Burhans’ fa-

ther-in-law, Charles Rice, owned the 125

acre parcel. In 1980 Mr. Rice obtained

an exception for an aircraft landing and

storage area on the parcel and set up a

small airport. In 1983 Mr. Faux-Burhans

bought the property and further improved

the airport.

The FAA inspected the airport,

conducted an aeronautical study, and

granted Mr. Faux-Burhans approval for its

use. Noticing the improvements, county

inspectors warned Mr. Faux-Burhans that

the airport was governed by the local

zoning ordinance and that violations

could result ina civil penalty.

Mr. Faux-Burhans sued Frederick

County in federal district court for the

district of Maryland, invoking federal

jurisdiction under 28 U.S.C. §§ 1331 &

1343. - Mr. Faux-Burhans sought a declara-

tion that the Federal Aviation Act of

1958, as amended, preempts zoning re-

strictions on the use of navigable

airspace at his airport. He sought

damages under 42 U.S.C. § 1983, alleging

that the restrictions constitute action

under color of state law depriving him of

his right to freedom of transit through

navigable airspace.

The district court granted summary

judgment against Mr. Faux-Burhans, and

the Court of Appeals for the Fourth

Circuit affirmed in an unpublished

decision. The Fourth Circuit's decision

did not attempt to distinguish its

holding from the many decisions by other

circuit courts and this Court ruling that

only the federal government may restrict

the use of navigable airspace.

Reasons for Granting the Writ

1) The Fourth Circuit's

Holding That Federal Law Does

Not Preempt Zoning of Navigable

Airspace By a Local Government

Conflicts With Decisions by the

Courts of Appeals for’ the

Second, Ninth, and _ Eleventh

Circuits

The zoning provisions under chal-

lenge do not distinquish between

ground-based and flight activities at the

airport, such as landings and departures,

but restrict all uses. The district

court found that Frederick County's

zoning “regulates intensity of use (by

number of aircraft), the type of aircraft

that can use the facility (by takeoff

distance required), the clear zone at the

runway ends (by prohibiting building

thereon), . . . and the type of aircraft

operations (by prohibiting instructional

flights)." (App. B, pp. B=7 to B-=8).

These are all areas of aeronautical

‘regulation that other federal courts of

appeals have ruled are the exclusive

province of the federal government.

Pirolo v. City of Clearwater, 711 F. 2d

1006 (11th Cir. 1983); San Diego Unified

Port District v. Gianturco, 651 F. 2d

1306 (9th Cir. 1981); United States v.

New Haven, 447 F. 2d 972 (2nd Cir. 1971),

on rem. 367 F. Supp. 1338 (D.C. Conn.,

1973), affirmed 496 F. 2d 452 (2d Cir.

1974) cert. den. & app. dism'd 419 U.S.

10

EE

958; Lockheed Air Terminal, Inc. v. City

of Burbank, 318 F. Supp. 914 (CD Calif.,

1970), affirmed 457 F.2d 667 (9th Cir.,

1972), affirmed 411 U.S. 624 (1973);

American Airlines, Inc. v. Hempstead, 272

F. Supp. 226 (E.D.N.Y. 1967), affirmed

398 F. 2d 369 (2nd Cir. 1968), cert. den.

393 US 1017; Allegheny Airlines v.

Village of Cedarhurst, 238 F. 2d 812 (2d

Cir. 1956).

Congress has proclaimed that the

United ~ States government exercises

complete and exclusive sovereignty over

the airspace of the United States. 49

U.S.C.S. Appx. § 1508(a). As part of the

exercise of this sovereignty, Congress

has guaranteed all citizens of the United

States a right of freedom of transit

through navigable airspace. 49 U.S.C.S.

Appx. § 1304. The term “navigable

airspace” is defined to include airspace

11

needed to insure safety in the departure

and landing of aircraft. 49 U.S.C.S.

Appx. § 1301(29).

The public right of freedom of

transit through such airspace is circum-

scribed only by the authority of the

federal government. 49 U.S.C.S. Appx. §

1348 confers on the FAA Administrator

plenary authority over the regulation and

management of all navigable airspace.

H.R. 2360, U.S. Code. Cong. & Admin.

News, 85th Cong., 2d Sess., vol. 2, Pp.

3741-2 (1958). |

Subsection 1348 (a) directs the

Administrator to develop plans for the

use of navigable airspace, and to assign

use of “navigable airspace subject to

appropriate conditions. Subsection

1348(c) orders the Administrator to pre-

scribe air traffic rules to govern the

flight of aircraft.

12

ened

The only government authority other

than the FAA Administrator that may exert

power over navigable airspace is the

military. Under subsection 1348(f), the

military may authorize deviation from the

Administrator's air rules when essential

to the defense of the United States

because of a military emergency.

In order to ensure conformity with

the Administrator's rules and allocations

of airspace under the ‘above provisions,

49 U.S.C.S. Appx. § 1350 requires prior

notice to the Administrator before any

airport such as that owned by Mr.

Faux-Burhans can be established. The

agency has implemented this requirement

in its regulations found at 14 C.F.R.

Part 157.

Size and form of ownership of

navigable airspace at airports does not

affect federal authority over it. 49

13

U.S.C.S. Appx. § 1508(a) states that the |

federal gévernment possesses and exercis- |

es “exclusive national sovereignty” over

all of the airspace of the United States,

not just regional airports serving major

airliners. And 49 U.S.C.S. Appx. § 1304

declares a right of freedom of transit

through navigable airspace held by “any

citizen of the United States," not only

air carriers and users of passenger jets.

Indeed, the Federal Aviation Act defines

"aircraft" to mean "any contrivance now

known or hereafter invented, used, or

designed for navigation of or flight in

the air.” 49 U.S.C.S. Appx. § 1301(5).

Federal preemption of navigable

airspace, originating with the Air

Commerce Act of 1926, applies to airspace

adjacent to private as well as public

airports. Legislative history of the Air

Commerce Act evidences Congress's intent °

14

ee

to impose a public right of transit

through navigable airspace “regardless of

the ownership of the adjacent or subja-

cent soil." H.R. Report No. 572, 69th

Cong. list Sess., p. 10.

The history of the Federal Aviation

Act of 1958 shows that Congress vested

"unquestionable authority for all aspects

of airspace management in the Administra-

tor of the new Agency [the Federal

Aviation Administration]." Lockheed Air

Terminal, Inc. v. City of Burbank, supra,

318 F. Supp. at 921. As one court has

noted:

"It would be difficult to

visualize a more comprehensive

scheme of combined regulation,

subsidization and operational

participation than that which

the Congress has provided in

the field of aviation."

American Airlines, Inc. v. Town

Of Hempstead, supra, 272 F.

Supp. at 232.

Every federal court of appeals that

has examined the Federal Aviation Act and

15

OO

its predecessors has concluded that

Congress has preempted state and local

governments from using their police

powers to regulate aircraft use at local

airports. In Allegheny Airlines v.

Village of Cedarhurst, supra, 238 F. 2d

812, the Second Circuit ruled that a

local township's ordinance prohibiting

flight below 1000 feet over the village

was preempted by federal law. The court

rejected the argument that exclusive

federal sovereignty attaches only to

airspace above normal flight altitudes,

ruling that federal control also extends

to take-off and landing approaches at

airports. Id. at 815.

In American Airlines, Inc. Vv.

Hempstead, supra, 398 F. 2d 369, the

Second Circuit affirmed an injunction

against the enforcement of an airport

noise ordinance which would have diverted

16

SF 6 ee ee ee

aircraft from their normal approaches to

Kennedy Airport. The court ruled that

the local ordinance was preempted, since

compliance would conflict with federal

flight patterns.

Shortly after American Airlines, a

federal court in California struck down

an ordinance enacted by the City of

Burbank prohibiting nighttime takeoffs.

Lockheed Air Terminal, Inc. v. City of

Burbank, supra, 318 F.. Supp. 914. After

carefully studying the legislative

history of the Federal Aviation Act of

1958, the court concluded "that Congress

intended to centralize full and dominant

control of the navigable air space in the

Federal Government" and that Burbank's

curfew, enacted in a good faith effort to

control noise, was barred by the Commerce

Clause. Id. at 318 F. Supp. 925, 928.

17

The Ninth Circuit Court of Appeals

affirmed, holding that the pervasiveness

of federal regulation in air commerce,

the national interest, and the nature of

air commerce coalesce to the conclusion

that state and local regulation of air

commerce is preempted by federal law:

"In this case, we have

found the conclusion of federal

preemption ‘unavoidable. '

Furthermore, the Federal

Aviation Act also _ contains

language of exclusivity. 49

.U.S.C.S. § 1508 declares that

the United States possesses and

exercises ‘complete and exclu-

sive- national sovereignty in

the airspace of the United

States ....-*° That is the

same type of expression which

the Supreme Court found in the

Federal Tobacco Inspection Act

to evidence Congressional

intent to establish a wholly

federal system which States

were powerless even to supple-

ment. Campbell v. Hussey, 368

0.8. <d@at, Ge 8.CG. Say, 7

L.Ed.2d 299 (1961)."

Id. at 457 F.2d 675.

In United States v. New Haven,

supra, 447 F. 2d 972, East Haven had sued

18

New Haven in Connecticut state court

alleging New Haven had acquired land for

its clear zone at the Tweed New Haven

Airport illegally under state law. The

state court agreed and issued an injunc-

tion forbidding flights over the disputed

clear zone. This decision was upheld by

the Connecticut Supreme Court.

The United States sued in federal

district court to reopen the runway and

to enjoin enforcement of the state ‘court

injunction. The federal court issued a-

preliminary injunction against the state

court order, and the Second Circuit

affirmed, ruling that the federal govern-

ment alone has the authority to restrict

use of navigable airspace, including

airspace needed for landing and departure

at local airports. Id. at 447 F. 2d 973.

On remand, the district court issued

a permanent injunction against the state

19

court order.

affirmed, stating:

"It is quite evident, as

Chief Judge Blumenfield found,

that the airspace above the

East Haven land acquired by New

Haven is within the meaning of

‘clear zone' as defined by 14

C.F¥.R. 151.90). The clear

zones, as part of the navigable

airspace, are subject to

federal regulations, and the

orders of the Connecticut

courts infringed upon the

federal power.

* * * *

"State legislation opur-

porting to deny access to

navigable air space would

therefore constitute a forbid-

den exercise of the power which

the federal government has

asserted, ' 447 F. 2d 972 at

973.

Thus, East Haven cannot enforce

its rights under Connecticut

law by obtaining a state court

injunction which infringes on

federal regulation of navigable

airspace."

Id. 496 F. 2d at 454.

The Ninth Circuit has rejected an

argument that the State of California

could circumvent the holdings in Burbank

Again the Second Circuit

20

and City of New Haven by claiming that it

was acting as “airport proprietor” of an

airport owned by a local port authority

when it enacted curfew limitations. San

Diego United Port District v. Gianturco,

651 F.2d 1306 (9th Cir., 1981). More

recently, the Eleventh Circuit ruled that

federal law preempted a municipality's

attempt to regulate an airport leased to

a private operator. Pirolo v. City of

Clearwater, 711 F. 2d 1006 (11th Cir.

1983).

The local concerns in the above

cases, often affecting urban populations

of millions, were certainly as great as

Frederick County's interest in restrict-

ing flight activities at airports operat-

ing in farmlands and industrial dis-

tricts. But the Federal Aviation Act

preempts any local regulation that

21

ca |

intrudes into the exclusive federal

domain of navigable airspace.

The Fourth Circuit has not

explained why it has disregarded the

teachings of the Second, Ninth, and

Eleventh Circuits in this case. For this

reason alone, writ of certiorari is

justified.

2) The Court of Appeals i

Has Decided an Important

Federal Question In Conflict

with Applicable Decisions of |

This Honorable Court

The Frederick County ordinance has

the purpose and effect of restricting use

of navigable airspace at local airports

by ‘number or aircraft, aircraft owner-

ship, aircraft performance parameters,

and purpose of flight (non-training

only). These are exactly the type of

restrictions Congress has empowered only

the FAA Administrator to impose. 49

U.S.C.S. § 1348. But the Fourth &

22

Circuit's ruling grants to local zoning

authorities concurrent power to regulate

navigable airspace. This unprecedented

ruling contradicts relevant holdings of

this Honorable Court.

In Northwest Airlines v. Minnesota,

322 U.S. 292 (1944), Justice Jackson

stated:

"Air as an element in which to

navigate is even more inevita-

bly federalized by the commerce

clause than is navigable water.

Local exactions and barriers to

free transit in the air would

neutralize its indifference to

space and its conquest of’ time.

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 intri-

cate system of federal com-

mands. 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 instructions from

23

ey

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 1s concerned, it

owes to the Federal Government .

alone and not to any _ state

government." [Underscoring

added. }

Id., 322 U.S. at 303.

The impact of Congress's deliberate

decision to create a "public easement" in

navigable airspace was the basis for a

Supreme Court decision finding the

federal government liable in an inverse

condemnation action brought’ by the

neighbor of an airport. United States v.

Causby, 328 U.S. 256 (1946). The airport

neighbor claimed loss of property value

in his 2.8 -acre residence and chicken

farm due to the landing and taking off of

military aircraft directly over his

property. The Court said:

"It is ancient doctrine

that at common law ownership of a)

the land extended to the

24

periphery of the universe -

Cujus est solum ejus est usque

ad coelum. But that Tectrine

has no place in the modern

world. The air is a public

highway, as Congress has

declared. Were that not true,

every transcontinental flight

would subject the operator to

countless trespass suits.

Common sense revolts at the

idea. To recognize such

private claims to the airspace

would clog these highways,

seriously interfere with their

control and development in the

public interest, and transfer

into private ownership that to

which only the public has a

just claim."

Id. 328 U.S. at 260-261.

More recently in Burbank v. Lockheed

Air Terminal, 411 U.S. 624 (1973), this

Honorable Court affirmed the Ninth

Circuit's determination that Burbank's

ordinance prohibiting landings and

departures at night was preempted by

federal law. The United States, not a

party to the prior proceedings, filed a

brief arguing against preemption of local

noise ordinances. The Court responded:

25

"The Solicitor General,

though arguing against pre-emp-

tion, concedes that as respects

‘airspace management’ there is

pre-emption. That, however, is

a fatal concession, for as the

District Court found: ‘The

imposition of curfew ordinances

on a nationwide basis would

result in a bunching of flights

in those hours immediately

preceding the curfew. This

bunching of flights during

those hours would have the

twofold effect of increasing an

already serious congestion

problem and actually increas-

ing, rather than relieving, the

noise problem by increasing

flights in the period of

greatest ‘annoyance in the

surrounding communities. Such

'a result is totally inconsis-

tent with the objectives of the

the federal statutory and

regulatory scheme.'”

Id. at 627-628.

The balance of this Court's decision

in Burbank was devoted to an analysis of

the impact of the Noise Control Act of

1972 on local governments’ power to

regulate aircraft noise at airports.

Based on its study of legislative histo-

ry, the Court concluded that Congress did

26

- a

not intend to disrupt the earlier case

rulings upholding absolute federal

control over airport and aircraft noise.

Id. at 635-637. The Noise Control Act

was designed to address the very serious

problem of aircraft noise at the federal

level, and the Court refused to ascribe

any intention to open the door to regula-

tion by local governments:

"We are not at liberty to

diffuse the powers given by

Congress to FAA and EPA by

letting the States or Munici-

palities in on the planning.

If that change is to be made,

Congress alone must do it.”

Id. at 640.

As this Court has declared, the air

is a public highway. Airports approved

by the FAA, whether private or public,

are the citizens’ egress and ingress to

that highway. And only the FAA may

impose restrictions on airspace at such

airports.

27

3) The Court of Appeals

Has Decided An Important

Question of Federal Law In a

Way That Could Lead to Disaster

in the Skies and Frustration of

Congressional Purpose

The consequence of the Fourth

Circuit Court of Appeals’ unprecedented

decision to permit local regulation over

navigable airspace could lead to an

explosion of local regulations on naviga-

ble airspace at airstrips and airports

throughout the Fourth Circuit. Each

state, county, and municipality will be

free to legislate its own airspace

regulations whenever the local government

decides that the FAA rules are not as

restrictive as it likes. Pilots will

have to check with local governments to

ensure compliance with such local regula-

tions whenever they land.

Unchecked regulation of navigable

airspace by diverse authorities will lead

to the "imminent possibility of

28

me

collision”. See Schneideman v. ANR

Pipeline Company, 56 USLW 4249, 4254

(March 22, 1988) (Such “imminent possi-

bility of collision” between federal and

state regulation is evidence of federal

government's complete occupation of regu-

lated field). And this “collision” of

law could lead to real collisions in the

air as pilots grapple with conflicting

air control authorities.

Such chaos will frustrate the

federal goal of uniform control and

regulation over navigable airspace, and

impair the public's right of access to

navigable airspace. 49 U.S.C.S. Appx. §§

1303, 1304.

Conclusion

For the reasons set forth, it is

respectfully submitted that this petition

for a writ of certiorari should be

granted.

29

AUL VICTOR JORGENSEN

Counsel of Recon’ for

Petitioner

215 West Main ae

Post Office Box 850

Middletown, Maryland

21769

(301) 293-2212

30

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 88-3929

Amos D. Faux-Burhans,

Appellant,

versus

Board of County Commissioners of

Frederick County,

Appellee.

Appeal from the United States District

Court for the District of Maryland, at

Baltimore. Frederick N. Smalkin, United ©

States District Judge. (CA-87-2556-S)

Argued: July 7, 1988

Decided: September 9, 1988

Before WINTER, Chief Judge, and MURNAGHAN

and SPROUSE, Circuit Judges

Paul Victor Jorgensen (Leland Ronald

Jorgensen on brief) for Appellant.

Lawrence Edward Speelman (Joseph E.

Emerson on brief) for Appellee.

PER CURIAM:

Amos Faux-Burhans appeals the

judgment of the district court granting

summary judgment against him on his two

federal claims and dismissing his pendent

state action. In his action against the

County Commissioners of Frederick County,

Faux-Burhans demanded a declaratory

judgment and injunction against the

enforcement of a county zoning ordinance

preventing certain activities at his

private airstrip in the county. Alleging

violation of 42 U.S.C. § 1983, he also

demanded damages. We affirm.

Faux-Burhans' airport is located on

his 125 acre property in a rural part of

Frederick County, Maryland. At the time

of the passage of the zoning ordinance in

1977, Faux-Burhans' father-in-law,

Charles Rice, owned the property. In

1980 Rice obtained an exception to the

ordinance for an “aircraft landing and

storage area." Rice and Faux-Burhans

erected a hangar after which Faux-Burhans

inspected and repaired airplanes on the

property on a part-time basis. In 1983

Faux-Burhans bought the property and made

improvements on the airstrip. In 1985

County inspectors, noticing the improve-

ments, warned him that he was governed by

the local zoning ordinance and that

violations would result in 4 ees.

satatée. |

The ordinance imposes the following

restrictions on airports such as the one

owned and operated by Faux-Burhans:

(a) Minimum Size: Twenty-five

(25) acres.

(b) Principal User: Owner of

parcel.

(c) Intensity of Use: No more

than two (2) aircraft may use

the airfield or storage area.

(d) Aircraft: Limited to

those which at ninety-five

(95) degrees Fahrenheit

require a maximum of one

thousand eight hundred

(1,800) feet oor less of

runway surface as recommended

by the specific aircraft

manufacturer.

(e) Clear Zone: Must_ be

provided at both approach and

departure end of runway.

Such zone shall be a

symmetrical trapezoid with a

length of one thousand

(1,000) feet and with the

parallel sides being’ one

hundred seventy-six (176)

feet (adjacent to end of

runway) and three hundred

seventeen (317) feet

respectively.

No structures are permitted

within the clear zone. The

clear zone must be under the

ownership of the airfield

owne:s.

(f) Area of Operation: No

operation will be permitted

within one hundred (100) feet

of a property line, or one

thousand (1,000) feet of any

public or private institution

devoted to education or human

care.

(g) Use Limited: The airfield

will not be for the use of

instruction or training.

PAA Tine EW A

Frederick County Zoning

Ordinance § 1-19-381 (1977).

Faux-Burhans asserts that the

limitations imposed by the ordinance in

effect prohibited: regular use by his

neighbor for commuting to work in

Pennsylvania; frequent use for aircraft

inspection and repair; restoration and

collection of vintage aircraft; use by

high performance aircraft; instruction in

airplane repair and maintenance; and

storage of airplanes. He attempted to

obtain a public airport exception from

the County, but his request was denied.

During the course of construction at

the airport and his attempts to obtain

County approval, Faux-Burhans’ sought

Federal Aviation Administration and state

approval for the operation of his air-

port. Both the FAA and the state agency

inspected and contingently approved the

site. The FAA conducted an aeronautical

study and required him to reach a flight

plan agreement with a neighboring air-

port.

Faux-Burhans has not, however,

identified any federal statute or

regulation explicitly or implicitly

sciiiehion the regulations imposed by the

county ordinance involved here nor has he

demonstrated any actual conflict between

federal statutes or regulations and

county requirements. The district court,

ina well-reasoned opinion, reached this

conclusion and also held that

Faux-Burhans had presented no cognizable

Claim under § 1983. It also dismissed

his pendent cause of action.

Agreeing with the reasoning of the

district court, we affirm.

AFFIRMED.

a = rete ah shat he

Dieta tsct Bas

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil No. S 87-2556

AMOS DENSLOW FAUX-BURHANS

Vv.

COUNTY COMMISSIONERS OF FREDERICK COUNTY

Paul Victor Jorgensen, Esq., Middletown,

Maryland, for plaintiff.

Lawrence E. Speelman, County Attorney,

and Joseph E. Emerson, Deputy County

Attorney, Frederick, Maryland, for

defendant. ;

Smalkin, District Judge.

Filed: December 17, 1987

MEMORANDUM OPINION

This is a case within the federal

question and civil rights enforcement

jurisdictions of this Court, 28 U.S.C. §§

1331 and 1343, in which the plaintiff,

owner-operator of a small private

airfield in Frederick County, Maryland,

challenges the County's zoning restric-

tions on private airfield operations as

set forth in § 1-19-381 of the Frederick

County Zoning Ordinance. The challenge

is based on three grounds. First,

plaintiff claims that the County Zoning

Ordinance, insofar as it attempts to

regulate his airfield, is pre-empted by

federal law. (Plaintiff's complaint does

not identify the allegedly pre-empting

statute(s), but his summary judgment

opposition does.) Second, plaintiff

claims that application of the County

Zoning Ordinance to him constitutes state

action which has deprived him of federal

rights, giving him a claim under 42

U.S.C. § 1983 for “devaluation of his

property, loss of investments, lost past

and future income, and emotional distress

and mental anguish." Third, and finally,

a

plaintiff asserts a state-law based

claim, viz., that the Frederick County

Zoning Ordinance's regulation of private

airports is pre-empted by Maryland state

law (Md. Transp. Code Ann. §§ 5-601 -

5-617 (1977)). The defendant has moved

for summary judgment and has supplemented

its motion as directed by the Court, and

the plaintiff has filed a consolidated

response. No oral hearing is necessary.

Local Rule 6, D. Md.

The facts alleged in the plaintiff's

complaint are entirely uncontested. In

1980, a special exception was granted to

plaintiff's father-in-law to operate,

within an agricultural zone, a private

airfield in accordance with the the

restrictions on use and operation of such

airfields as set forth in the Frederick

County Zoning Ordinance, at § 1-19-381

(1977). (These restrictions are

discussed post in some detail.) [In 1983,

plaintiff's father-in-law conveyed the

airport parcel of his property to plain-

tiff, a federally licensed aircraft

mechanic and inspector. Even before this

conveyance, plaintiff had been using the

field (on which he had erected a hangar)

as a facility to inspect and repair

general aviation (private) aircraft.

After the conveyance, plaintiff paved the

runway and improved the _ hangar. He

registered the facility as a private

airport with both the Federal Aviation

Administration and the Maryland State

Aviation Administration. When he was

informed in 1985 by Frederick County

authorities that his use of the improved

facility was still subject to the re-

strictions of § 1-19=-381, he applied for,

but was denied, a public airport special

exception (which would have allowed

greater use of the field than permitted

under § 1-19-381). He also proposed an

amendment to the County Zoning Ordinance,

which was rejected. The plaintiff was,

however, allowed to continue operating in

accordance with the 1980 special excep-

tion, permitting use of the field as a

private airport in conformity with the

restrictions of § 1-19-381. This suit

. followed the denial of che public airport

special exception. It does not challenge

that denial, but, instead, ‘a ‘aimed

directly at the use restrictions imposed

on private fields by § 1-19-381.

The Court first addresses’ the

federal pre-emption issue. Pre-emption

of state and local regulation of a

particular subject matter by

Congressional enactment is a well-known,

but infrequently encountered, phenomenon

of American constitutional law, with

ancient (at least by American standards)

origins. See Cooley v. Board of Wardens,

53 U.S. (12 How.) 299 (1852). It poses

entirely a question of federal statutory .

construction, depending for its

application in a particular case upon

ascertainment of the intent of Congress

to enact a pervasive scheme of regulation

of the subject matter. City of Burbank

v. Lockheed Air Terminal, Inc., 411 U.S.

624, 633 (1973). In the City of Burbank

case, the Supreme Court found federal

pre-emption of local regulation of

aircraft noise emissions at airports by

federal statute, viz., the Federal

Aviation Act of 1958, 72 Stat. 731, as

amended by the Noise Control Act of 1972,

86 Stat. 1234, and the regulations |

promulgated pursuant thereto in 14

C.F.R., pts. 71, 73, 75, 77, 91, 93, 95

SEE

and 97. In City of Burbank and cases

that have followed it, e.g., Pirolo v.

B-6

————————————

City of Clearwater, 711 F.2d 1006 (11th

Cir. 1983), the local noise regulations

in question clearly infringed upon the

federally pre-empted regulation of

navigable airspace, by directly affecting

the manner in which, and the type of

aircraft by which, flight operations were

to be conducted from airports that were

otherwise open to air traffic in general.

In the instant case, plaintiff can

point to no federal statute or regulation

explicitly or implicitly pre-eaptine the

broad areas of regulation of the size,

scope, and manner of operations at a

private airport such as his. The ordi-

nance in question does not regulate noise

emissions or the actual conduct of flight

operations within navigable airspace.

Rather, the Frederick County zoning law

regulates intensity of use (by number of

aircraft), the type of aircraft that can

use the facility (by take-off distance

required), the clear zone at the runway

ends (by prohibiting building thereon),

the locale of operation (by set-back *

requirements), and the type of aircraft

operations (by prohibiting instructional

flights.) Certainly, these are all areas

of valid local regulatory concern, none

of which is federally pre-empted, and

none of which inhibits in a proscribed

fashion the free transit of navigable

airspace. And, just as certainly, no

federal law gives a citizen the right to

operate an airport free of local zoning

control.

Nothing in City of Burbank itself

requires a finding of federal pre-emption

in this case, in view of its limited

holding (extending only to regulation of

noise emissions by operating aircraft).

Indeed, the legislative history quoted in

B-8

teres

(now Chief) Justice Rehnquist's dissent-

ing opinion shows an intent by Congress

not to restrict "the authority of units

of local government . . . through the

exercise of land use planning and zoning

powers." 411 U.S. at 650. The plaintiff

can point to no case law extending the

pre-emption holding of City of Burbank to

the lengths he now would seek to stretch

it, and this Court holds that the ordi-

nance in question is not federally

pre-enipted.

Plaintiff's second set of claims,

under 42 U.S.C. § 1983, is likewise

meritless. First, to the extent that a

claim is attempted to be asserted for an

unconstitutional taking of plaintiff's

property without just compensation, the

Court simply notes that, under the 1987

trilogy of land use cases decided by the

Supreme Court, plaintiff has no claim.

He has not been deprived of "all use” of

his property, because he continues to

operate it (although not on the larger

scale he would like) under and in

conformity with the special exception

granted his father-in-law in 1980. First

English Evangelical Lutheran Church v.

County of Los Angeles, 107 S. Ct. 1378

(1987). There has also been no taking in

the sense of a non-consensual acquisitian

of public rights in, - imposition of a

public easement upon, plaintiff's private

property, given the County's legitimate,

substantial interest in regulating the

land used for airports, an interest that

implicates safety and land-use (develop-

mental) considerations far transcending

the questions of noise and airspace

regulation that may be beyond County

control. Certainly, the County has a

legitimate, substantial interest (which

was referred to in the plaintiff's zoning

cases) in planning the future development

of the presently agricultural area

surrounding plaintiff's property, and it

may properly decide that the Zoning

Ordinance's use restrictions on private

airfields promote the overall development

scheme of the County. Thus, there has

been no constitutional taking of plain-

tiff's property. Nollan v. California

Coastal Com., 107 S. Ct. 3141 (1987);

Keystone Bituminous Coal Ass. w.

DeBenedictis, 107 S. Ct. 1232 (1987). To

the extent that plaintiff argues depriva-

tion of a federal right to free transit

of airspace, the argument fails (in the

context of the challenged Ordinance) for

reasons discussed ante in connection with

his pre-emption claim. Even if this

right were infringed because of pre-emp-

tion, a concept flowing from the

Constitution's supremacy clause, there is

no right of action recognized under 42

U.S.C. § 1983 for violation of the

supremacy clause. Chapman v. Houston

Welfare Rights Org., 441 U.S. 600 (1979).

For the reasons stated, then, summary

judgment will be entered for defendants

on plaintiff's first two causes of

action.

Finally, because plaintiff's federal

claims are patently. meritless, it is

appropriate to dismiss his third, pendent

state-law based cause of action. United

Mine Workers v. Gibbs, 383 U.S. 715

(1966).

There is no need to discuss the res

judicata argument raised by defendant.

For the reasons stated, an order

will be entered separately, granting

summary judgment for defendant, against

plaintiff, on the plaintiff's first two

causes of action, and dismissing his

third cause of action for want of federal

subject matter jurisdiction. Fed. R.

Civ. P. 12(h) (3).

/s/

Frederic N. Smalkin

United States

District Judge

B-13

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil No. S 87-2556

AMOS DENSLOW FAUX-BURHANS

Vv.

COUNTY COMMISSIONERS OF FREDERICK COUNTY

Order and Judgment

Filed: December 17, 1987

ORDER AND JUDGMENT

For the reasons stated in the

foregoing Memorandum Opinion, IT IS this

17th day of December, 1987, by the United

States District coaet for the District of

Maryland, ORDERED and ADJUDGED:

l. That defendant's motion for

summary judgment BE, and the same hereby

IS, GRANTED, on the plaintiff's first two

causes of action;

B-14

2. That judgment BE, and the same

hereby IS, entered in favor of defendant,

against plaintiff, on plaintiff's first

two causes of action;

3. That plaintiff's third cause of

action BE, and the same hereby TIS,

DISMISSED for want of federal subject

matter jurisdiction; and

4. That the Clerk mail a copy of

the foregoing Memorandum Opinion and of

this Order and Judgment to counsel for

the parties.

/s/

Frederic N. Smalkin

United States

District Judge

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 88-3929

Amos D. Faux-Burhans,

Appellant,

Vv.

Board of County Commissioners of

Frederick County,

Appellee.

On Petition for Rehearing with Suggestion

for Rehearing In Banc.

The appellant's petition for

rehearing and suggestion for rehearing in

banc were submitted to this Court. As no

member of this Court or the panel

requested a poll on the suggestion for

rehearing in banc, and

As the panel considered the petition

for rehearing and is of the opinion that

it should be denied,

IT IS ORDERED that the petition for

rehearing and suggestion for rehearing in

banc are denied.

Entered at the direction of Judge

Sprouse, with the concurrence of Chief

Judge Winter and Judge Murnaghan.

For the Court

/s/John M. Greacen

CLERK

APPENDIX D

Frederick County Zoning Ordinance Section

1-19-381. Aircraft landing and storage

areas in A, LI and GI districts.

(a) Minimum - Size: Twenty-five (25)

acres.

(b) Principal User: Owner of parcel.

(c) Intensity of Use: No more than two

(2) aircraft may use the airfield or

storage area.

(d) Aircraft: Limited to those which at

ninety-five (95) degrees Fahrenheit

require a maximum of one thousand eight

hundred (1,800) feet or less of runway

surface as recommended by the specific

aircraft manufacturer. ~—

(e) Clear Zone: Must be provided at both

approach and departure end of runway.

Such zone shall be a symmetrical

trapezoid with a length of one thousand

(1,000) feet and with the parallel sides

being one hundred seventy-six (176) feet

(adjacent to end of runway) and three

hundred seventeen (317) feet

respectively.

No structures are permitted within the

clear zone. The clear zone must be under

the ownership of the airfield owner.

(f) Area of Operation: No operation will

be permitted within one hundred (100)

feet of a property line, or one thousand

(1,000) feet of any public or private

institution devoted to education or human

care.

(g) Use Limited: The airfield will not

be for the use of instruction oor

training.

(Ord. No. 77-11-78, § 40-72(A=-5), 1-24-77)

Certificate of Service

I CERTIFY that on this Second day of

December, 1988, I served three copies of

the foregoing Petition for Writ of

Certiorari by first class United States

mail, postage prepaid, on Lawrence E.

Speelman, County Attorney, Winchester

Hall, 12 East Church Street, Frederick,

Maryland 21701 in accordance with

Supreme Court Rule 28.3.

Counsel of Ré

Petitioner / a

215 West Magh Street

Post Office Box 850

Middletown, Maryland

21769

(301) 293-2212