# Petition for Writ of Certiorari — Faux-Burhans v. Board of County Commissioners > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0519%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 488 U.S. 1042 ## Text 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.