Opposition Brief — Faux-Burhans v. Board of County Commissioners

No. 88-910 2 | FILED.

30

tn The DEC 1988

F. SPANIOL, JF

Supreme Gourt of the Huited States = —

October Term, 1988

AMOS D. FAUX-BURHANS,

Petitioner,

vs.

BOARD OF COUNTY COMMISSIONERS OF FREDERICK

COUNTY,

Respondent.

On Petition for Writ of Certiorari to the United States Court

' . @f Appeals for the Fourth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

JOHN S. MATHIAS

County Attorney

Counsel of Record

JOSEPH E. EMERSON

Deputy County Attorney

Attorneys for Respondent

Office of the County Attorney

Winchester Hall

12 East Church Street

Frederick, Maryland 21701

(301) 694-1030

“Ts

-— (212) 940-4640%|. (516) 222-1606-WEST. (914) 683-9363

ALB. (S18) 463-7126 *NJ (201) 257-6850°MA (617) 542-1114

DC (202 783-7288+PA (215) 925-0500°USA (800) 5 APPEAL ky

TABLE OF CONTENTS

LIST OF ALL PARTIES

STATEMENT OF THE CASE

SUMMARY

ARGUMENT

ke

II.

Iit.

CONCLUSI

OF ARGUMENT

The Fourth Circuit Decision

Does Not Conflict with Any

Decision from the Circuit

Courts of Appeal.

The Fourth Circuit Decision

Does Not Conflict with Any

Decision of this Court.

The Fourth Circuit Court of

Appeals Did Not Decide an

Important Question of

Federal Law.

ON

Page

11

14

15

| TABLE OF AUTHORITIES

Cases

Page

v. ‘

Cedarhurst, 238 F.2d 812

(2a Cir. 1956) 6-7

P Airli ve ;

Hempstead, 398 F.2d 369

(2d Cir. 1968), cert denied

393 U.S. 1017 (1969) 7

riti j sv fe)

‘a ‘of M.Y¥,, S58 F.2G 73; Soa

(2nd Cir. 1977) 5

City of Burbank v. Lockheed Air

Terminal, Inc., 411 U.S. 624

(1973-) 5S. 6, 12, a3, 14

— Vv ‘

j , 674 F. Supp.

1172 (D. Md. 1987) 3

Faux-Burhans v. Bd. of County Comm*rs.

of Frederick County, No. 88-3929

(4th Cir. 1988) petition for cert.

filed,57 U.S.L.W. 3423 (U.S. Dec.

20, 1988) (No. 88-910) Ze S, 13

Garden State Farms, Inc. v. Bay, 77 N.J.

439, 390 A.2d 1177 (N.J. 1978) “4

La Salle Nat‘l Bank v. County of ‘

Cook, 34 Ill. App. 3d 264,

340 N.E.2d 79 (Ill. App. Ct. 1975) 4

ii

Lockheed Air Terminal, Inc. v. City

of Burbank, 457 F.2d 667 (9th Cir.

1972), aff*‘d 411 U.S. 624 (1973) 5

2 ’

322 U.S. 292 (1944) 12

,

711 F.2d 1006 (11th Cir. 1983) 6

’

331 U.S. 218 (1947) 10

v. Gianturco, 651 F.2d 1306

(9th Cir. 1981), cert. denied

sub nom. Dept. of Trans. of Calif.

_v. San Diego Unified Port District

’

455 U.S. 1000 (1982). 6

Santa Monica Airport Assn. v.

City of Santa Monica, 659

F.2d 100 (9th Cir. 1981) 5

U.S. v. Causby, 328 U.S. 256

(1946) 11

, 447 F.2d

972 (2d Cir. 1971), on rem. 367

F. Supp. 1338 (D. Conn. 1973),

aff‘d 496 F.2d 452 (2d Cir. 1974)

cert. denied 419 U.S. 958 (1974) 7

Wright v. County of Winnebago, 73

Ill. App. 3d 337, 391 N.E.2d 772

(Ill. App. Ct. 1979) 3

iii

: tituti i: “oo

U.S. Const. Art. VI, cl. 2

Statutes

42 U.S.C. § 4901-4918

49 U.S.C. § 1305

Treatise

5 Rathkopf, The Law of Zoning and

Planning § 60.01 (4th ed. 1988)

iv

13

10

LIST OF ALL PARTIES

Respondent is the Board of County

Commissioners of Frederick County,

Maryland. The five county commissioners.

are:

J. Anita Stup, President .

Mark L. Hoke, Vice President

Sterling E. Bollinger, Sr.

Richard L. Grossnickle

Charles C. Smith

The individual commissioners are not

parties to this proceeding.

STATEMENT OF THE CASE

The district court granted the

motion for summary judgment filed by the

Board of County Commissioners of

Frederick County, ‘Maryland.

Faux-Burhans _v. County __Comm*rs. of

Frederick County, 674 F. Supp. 1172 (D.

Md. 1987). Pet. App. B. In an

unpublished per curiam opinion, the

Fourth Circuit affirmed. Faux-Burhans

vy. Bd. of County Comm‘rs. of Frederick

County, No. 88-3929 (4th Cir. 1988)

Pet. App. A and Cc. The facts of this

case are adequately discussed in the two

lower court decisions, so they need not

be repeated here.

vi

No. 88-910

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1988

AMOS D. FAUX-BURHANS,

Petitioner,

Vv.

BOARD OF COUNTY COMMISSIONERS

OF FREDERICK COUNTY,

Respondent,

SUMMARY OF ARGUMENT

Petitioner has failed to identify

any conflict between local zoning and

federal regulation of aviation. The

Fourth Circuit decision does not

conflict with any of the cases cited by

Petitioner. It involves no important

questions of federal law. The Petition

should be denied.

ARGUMENT

The three grounds asserted in this

Petition do not constitute valid reasons

for granting the Writ of Certiorari.

This Petition should be denied.

I. The Fourth Circuit Decision

Does Not Conflict with Any Decision from

the Circuit Courts of Appeal.

Petitioner ascribes to the Fourth

Circuit decision the broadest sweep

since Hercules cleaned the Augean

stables. Petitioner characterizes the

holding as: "Federal Law Does Not

Preempt Zoning of Navigable Airspace By

a Local Government." Pet. at 9. The

Fourth Circuit’s decision is not nearly

so broad. In an unpublished per curiam

decision, the Fourth Circuit made short

shrift of Petitioner’s broad pronounce-

ments that federal sovereignty over all

navigable airspace precluded local

zoning of airports. The Court then

held:

Faux-Burhans has not, however,

identified any federal statute or

regulation explicitly or implicitly

preempting the regulations imposed

by the county ordinance involved

here nor has he demonstrated any

actual conflict between federal

statutes or regulations and the

county requirements. hers

Faux-Burhans v. Bd. of County Comm’rs.

of Frederick County, No. 88-3929 (4th

Cir. 1988) petition for cert. filed, 57

U.S.L.W. 3423 (U.S. Dec. 20, 1988) (No.

88-910) Pet. App. at A-6.

The District Court similarly noted:

In the instant case, plaintiff

can point to no federal statute or

regulation explicitly or implicitly

pre-empting the broad areas of

regulation of the size, scope, and

manner of operations at a private

airport such as his.

Faux-Burhans v. Bd. of County Comm’rs.

of Frederick County, 674 F. Supp. 1172,

1174 (D. Md. 1987).

Petitioner has now briefed this

matter in three courts and has not yet

pointed to any conflict between the

local ordinance and the federal statutes

and regulations. The reason is simple:

no conflict exists.

Petitioner asserts that several

circuit court decisions are in conflict

with the Fourth Circuit opinion. None

of these decisions, however, conflicts

with the real holding of the Fourth

Circuit -- that Petitioner has not

identified a conflict. The cases cited

by Petitioner can be distinguished from

Faux Burhans because each of the circuit

court decisions identifies a conflict

between a local ordinance and a federal

statute or regulation. ' Petitioner has

identified no conflict.

Petitioner asserts a federal pre-

emption of local zoning. None of the

circuit court decisions cited by

Petitioner stands for such a broad

proposition. In fact, none of these

cases involves zoning.

-4-

Petitioner alleges a conflict with

the 9th Circuit decision in Lockheed Air

Terminal, Inc. v. City of Burbank, 457

F.2d 667 (9th Cir. 1972), aff’d 411 U.S.

624 (1973). This Court affirmed the 9th

Circuit decision holding that federal

noise controls preempted local curfews

affecting air traffic schedules.?+ City

P mere yy Lock} . aj r ina)

Inc. 411 U.S. 624 (1973). No zoning

ordinances were involved so neither this

court nor the 9th Circuit based its

decision on federal preemption of

zoning. Petitioner’s contrary

assertions are not accurate.

1the Circuit Courts of

Appeals have interpreted this decision

narrowly and have not extended it beyond

noise control. See, British Airways v.

Port Auth. of N.¥., 558 F.2d 75, 83 (2nd

Cir. 1977); Santa Monica Airport Assn.

v. City of Santa Monica, 659 F.2d 100

(9th Cir. 1981).

Two of the other cases cited by

Petitioner followed City of Burbank and

similarly held that federal noise

controls preempted local curfews.

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), cert. denied sub

nom. Dept. of Trans. of Calif. v. San

Diego Unified Port District, 455 U.S.

1000 (1982). Again, zoning was not

involved, so the courts did not find any

broad - federal preemption of local

zoning.

The Court similarly promulgated no

broad statement of general. federal

preemption of zoning in Allegheny

Airlines v. Village of Cedarhurst, 238

F.2d 812 (2d Cir. 1956). This case

involved an ordinance by a neighboring

village restricting Idlewild Airport

flights at elevations less than 1,000

feet. This ordinance directly

conflicted with Civil Aeronautics Board

regulations on landings and takeoffs.

American Airlines v. Town of Hempstead,

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

393 U.S. 1017 (1969) involved a local

noise ordinance which directly

conflicted with ‘Federal ~- Aviation

Administration (FAA) regulations on

flight patterns and flying procedures.

In United States v. New Haven, 447 F.2d

972 (2a Cir. 1971), on rem. 367 F.

Supp. 1338 (D. Conn. 1973), aff’d 496

F.2d 452 (2d Cir. 1974) cert. denied 419

U.S. 958 (1974), a state court ordered

the closing of a runway at a

federally-funded airport. The state

order conflicted with clear zones

established by the FAA and with the

FAA’s control of navigable airspace at

this federally-funded airport. All

three of these cases stand for the

ordinary principle of law that, under

the Supremacy Clause, U.S. Const. Art.

VI, cl. 2, federal law prevails where

there is a direct conflict between local

and federal regulations. Because

Petitioner has not identified such a

conflict, the cases do not support

Petitioner’s contention. Once again,

none of these cases involved zoning.

Contrary to Petitioner’s assertions, the

cases do not establish a broad federal

preemption of all local zoning.

State courts considering this issue

have found no broad federal preemption

of local zoning. The decisions have

held that local zoning of airports is

valid. E.g., Wright v. County of

Winnebago, 73 Ill. App. 3d 337, 391

N.E.2d 772 (Ill. App. ct. 1979): La

Salle Nat’] Bank v. County of Cook, 34

Ill. App. 3d 264, 340 N.E.2d 79 (Ill.

App. Ct. 1975); Garden State Farms, Inc.

v. Bay, 77 N.J. 439, 390 A.2d 1177 (N.J.

1978). . See, 5 Rathkopf, The Law of 7

Zoning and Planning §60.01 (4th ed.

1988).

Petitioner has cited no case broadly

holding that federal law preempts local

zoning of navigable airspace. This

Court should not create such a pre-

emption. Sound policy reasons suggest

that zoning power should remain with

local government. As this court stated

in Rice v. Santa Fe Elevator Corp., 331

U.S. 218, 230 (1947):

Congress legislated here ina

field which the States have

traditionally occupied.... So we

start with the assumption that the

historic police powers of the States

were not to be superseded by the

Federal Act unless that was the

clear and manifest purpose of

Congress.

Petitioner has shown nothing to

suggest that "the clear and manifest

purpose of Congress" was to preempt all

local zoning in this area.*

Petitioner’s broad preemption argument

must fail.

21f Congress had intended a

preemption of zoning, a power

traditionally exercised by local

government, it could have specifically

done so in the statute. Congress did

expressly preempt other state regulation

of air transportation. 49 U.S.C.

§1305. Congress did not expressly

preempt zoning.

-10-

II. The Fourth Circuit Decision

Does Not Conflict with Any Decision of

this Court.

Petitioner cites three cases from

this Court; none conflicts with the

holding of the Fourth Circuit in

Faux-Burhans. Petitioner includes

lengthy quotations from two of the

Supreme Court decisions but does not

seriously argue a conflict between these

cases and the 4th Circuit decision.

In U. S. v. Causby, 328 U.S. 256

(1946), this Court held that the federal

government could be liable in inverse

condemnation for damage to landowners

near an airport.? The relevance of

this case is unclear. Petitioner does

-—3——<39W"—(_—§<_8§ 3] = ww ww www ww Ow ew ew ee

3Petitioner’s excerpt from

U.S. v. Causby is incomplete. Pet. at

24-25. The very next sentence of the

opinion states: "But that general

principle does not control the present

case." Jd. at 261.

-ll-

not seek inverse condemnation damages.

This decision and the decision of the

Fourth Circuit do not conflict.

Petitioner also cites Northwest

Airlines _v. Minnesota, 322 U.S. 292

(1944). This case held that the

Commerce Clause and the Due Process

Clause do not bar Minnesota from levying

a personal property tax on airplanes.

Preemption was not an issue. The case

is inapplicable here. *

Petitioner also alleges a conflict

with City of Burbank v. Lockheed Air

Terminal Inc., 411 U.S. 624 (1973). In

City of Burbank, this Court held that

federal law preempted local noise

controls at airports. A locally imposed

‘The Petition includes a

lengthy quotation not from Justice

Frankfurter’s opinion for the Court but

from Justice Jackson’s concurrence.

Pet. at 23-24. No other justice joined

in this concurrence.

-12-

curfew conflicted with the Noise Control

Act of 1972, 42 U.S.C. §4901-4918, and

FAA statutes and regulations. This

Court carefully limited its decision to

noise control only:

It is the pervasive nature of the

scheme of federal regulation of

aircraft momnoise that leads me to

conclude that there is pre-emption.

(emphasis added). City of Burbank

v. Lockheed Air Terminal. Inc., 411

U.S. at 633.

Petitioner here has not asserted any

local noise ordinances or any conflict

with federal noise regulations, so City

of Burbank is inapplicable. . The

decision of the Fourth Circuit is

consistent with City of Burbank.>

Petitioner asserts that

Congress has empowered only the FAA

Administrator to impose the restrictions

contained in the Frederick County

ordinance. Pet. at 22. Petitioner

confuses the possible existence of a

power with the exercise of it. Nowhere

does Petitioner suggest that the FAA

Administrator has asserted, let alone

used, this alleged power.

-13-

Moreover, then Justice Rehnquist’s

dissent (joined by three justices)

recognized that federal law does not

preempt local zoning:

A local governing body could

likewise use its traditional police

power to prevent the establishment

of a new airport or the expansion of

an existing one within its terri-

torial jurisdiction by declining to

grant the necessary zoning for such

a facility. City of Burbank v. Lock-

heed Air Terminal, 411 U.S. at 653.

IIl. The Fourth Circuit Court of

Appeals Did Not Decide an Important

Question of Federal Law.

As indicated above, the holding of

the Fourth Circuit is that Petitioner

failed to show any conflict between the

local ordinance and federal regu-

lations. This rather unremarkable

holding, that Petitioner failed to prove

his case, involves no important federal

question. Petitioner’s assertions of

resulting air collisions and chaos are

so desperate and absurd that they

require no refutation or comment.

-14<-

Conclusion

Petitioner has failed to show any

grounds for granting this Petition for

Writ of certiorari. This Petition must

be denied.

JOHN S. MATHIAS

County Attorney

Winchester Hall

12 E. Church Street

Frederick, Maryland 21701

(301) 694-1030

Counsel of Record for

Board of County Commissioners

of Frederick County, Maryland

I HEREBY CERTIFY that on this 30th

day of_December_ i988, three copies of

the aforegoing were mailed, postage

prepaid, to Paul Victor Jorgensen, 215

West Main Street, Post Office Box 850,

Middletown, Maryland 21769, attorney for

Petitioner in accordance with Supreme

Court Rule 28.3.

John S. Mathias

12 E. Church Street

Frederick, Maryland 21701

(301) 694-1030

Counsel of Record for

Board of County Commissioners

of Frederick County, Maryland

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