Opposition Brief — Burbank-Glendale-Pasadena Airport Authority v. Baker

Supreme Court, U.S.

2 | FILED

/

ai ‘ az 200

No. 85-1101 AN :

HF. SPANIOL, JR.

IN THE ae CLERK

SUPREME COURT OF THE UNITED S$

October Term, 1985 ~--:

BURBANK-GLENDALE- PASADENA

AIRPORT AUTHORITY,

Petitioner,

vs.

KENNETH L. BAKER, et al.,

Respondents.

ON PETITION FOR WRIT

OF CERTIORARI TO THE SUPREME COURT

OF: THE STATE OF CALIFORNIA

RESPONDENTS' BRIEF IN OPPOSITION

JOHN J. SCHIMMENTI

COUNSEL OF RECORD

SCHIMMENTI, MULLINS

& BERBERIAN

Suite 602

999 N. Sepulveda Blvd.

El Segundo, CA 90245

(213) 640-0392

Attorneys for Respondents,

KENNETH L. BAKER, et al.

ee

bese

QUESTIONS PRESENTED FOR REVIEW

1. Is continuing nuisance liability for airports

consistent with the supremacy clause as applied by

this Court in City of Burbank v. Lockheed Air

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

2. Does interstate commerce remain protected under

the law of continuing nuisance?

PARTIES BELOW

The parties to the proceedings in the California

Supreme Court from which review is sought are Peti-

tioner Burbank-Glendale-Pasadena Airport Authority*

and Respondents Mr. and Mrs. Kenneth L. Baker,

Patrick J. Bigley, William & Jan Bilios, Joe

& Angie DeCasper, Charles & Janet Ludecke, Mr.

and Mrs. Frank B. Miller, Sr., Thomas D. & Irene

*Petitioner Burbank-Glendale-Pasadena Airport

Authority is a joint powers agency created by the

cities of Burbank, Glendale and Pasadena pursuant

to California Government Code §§ 6500 et seq. and

6546.1.

Pineiro, Gary & Gail Rainwater, John & Allison

Rocks, Herb & Rose Rosen, Michael A. Rotella,

Michael & Irma Taranto and Carl & Doris Waugh.

TABLE OF CONTENTS

Questions Presented for Review

Opinions Below

Jurisdiction

Statement of the Case

Argument

I

Continuing Nuisance Liability for Airports

Is Consistent With the Supremacy Clause

As Applied by This Court in City of

Burbank v. Lockheed Air Terminal, Inc.

A. The Preemption of Nuisance Liability

For Airports Was Not At Issue in

the Courts Below

B. Federal Law Preserves a State's

Ability to Compensate Victim's

of Airport Nuisances

C. Supreme Court Precedent and Federal

Case Law Supports Continuing Nui-

ii

sance Liability for Airports

II

Interstate Commerce Remains Protected under

the California Law of Continuing Nuisance

A. The Affect of Nuisance Liability on

Interstate Commerce Was Never At Issue

In the State Courts

B. Evenhanded, Legitimate, Local Action

Is Constitutional, Unless Its Burden

On Interstate Commerce Is Clearly

Excessive

C. Continuing Nuisance Liability for

Airports Imposes No Undue Burden

On Interstate Commerce

Conclusion

Appendix: Petitioner's Second Supple-

mental Memorandum in Support of Demurrer

to Amended Complaint

13

18

18

19

20

29

A-]

iii

TABLE OF AUTHORITIES CITED

Cases

City of Burbank v. Lockheed Air Terminal,

Inc., 441 U.S. 624 (1973) 2,11,14

Cooley v. Board of Wardens of the Port

of Philadelphia, 12 How. 249 (1851) 20

Greater Westchester Homeowners Assn.

V. Los Angeles, 26 Cal. 3d 86, 603

P.2d 1329, 160 Cal.Rptr 733 (1979)

cert. denied, 449 U.S. 820 (1980) 15,16,25

Griggs v. County of Allegheny, 369

U.S. 857 (1962) 13,16

H.P.Hood & Sons v. DuMond, 336

U.S. 525 (1949) 25

Kassel v. Consolidated Freightways

Corp., 450 U.S. 662 (1981) 20,22

Luedtke v. County of Milwaukee, 521.

F. 2d 387 (7th Cir. 1975) 15,17

Phillips v. City of Pasadena, 27

Cal. 2d 104, 162 P.2d 625 (1945) 3

iv

Pike v. Bruce Church, Inc., 397

U.S. 137 (1970)

Pirolo v. City of Clearwater,

711 F.2d 1006, 1909 (11 Cir.

1983)

Rankin v. DeBare, 205 Cal.

639, 271 P.1050 (1928)

South Carolina State Highway Dept.

v. Barnwell Bros., 303 U.S. 177

(1938)

Southern Pacific Co. v. Arizona,

325 U.S. 761 (1945)

Stiles v. Laird, 5 C. 120, 63 Am.

Dec. 110 (1855)

Willson v. Black Bird Creek Marsh

Co., 2 Pet. 245 (1829)

Statutes

Airline Deregulation Act of 1978,

Pub. L. 95-504, § 105, 92 Stat.

20,21,25,27

17

23

20

10

19

V

1708, 49 U.S.C. § 1305 (West Supp. 1985)

California Code of Civil Procedure,

Sec. 731 (West 1980)

California Code of Civil Procedure,

Sec. 731(a) (West 1980)

California Government Code, Sec. 911.2

(West 1980)

California Government Code, Sec. 6546.1

(West 1980)

United States Code, Title 28, Sec.

1257(3)

Other

Brennan, State Court Decisions anc

the Supreme Court, 31 Penn. Bar

Assn. Q. 393 (1960)

Congressional Record, Vol. 124,

p. 37, 419 (1978)

1]

10

13,24

22

9,18

12

= , »

:

7 "es

“> = b

: : -

v oe ws , 9 2

gen a %

ST reer - i 7

as ; ae =

i i a 7

on Ce eS Se eee a 2

a . ~ = 4 =5)- 8. #

€ 2 en eS ¢ “eso O

- asa, ca ane

7 ==S ~oy iw ¥

a ‘ ey —m =o “e

7 ‘ : - = Ramat Tes yee = neal

. ole ~ = Se 7

7 i Bn vV¥ - = =

= <- 7 —

No. 85-1101

IN THE SUPREME COURT

OF THE

UNITED STATES

October Term, 1985

Burbank-Glendale-Pasadena

Airport Authority,

Petitioner,

VS.

Kenneth L. Baker, et al.,

Respondents.

Respondents, Mr. and Mrs. Kenneth L. Baker,

et al., respectfully request that the Petition

for Writ of Certiorari be denied and that this

Court let stand the decision of the Supreme

Court of the State of California in Baker, et

al., v. Burbank-Glendale-Pasadena Airport Auth-

ority.

OPINIONS BELOW

Under California law a nuisance may be treated

as either "permanent" or "continuing". In reviewing

the decisions below, the California Supreme Court

held that a permanent nuisance is an “encroachment

of a permanent nature erected upor one's lands",

while a continuing nuisance is 'u complaint made,

not of the location of the offending structures, but

of the continuing use of such structures". 39 Cal.

3d at 870. Furthermore, since the noise, fumes, and

vibrations emanating from an airport are continuing

in nature and subject to a proprietor's control, a

plaintiff may elect to treat an airport as a contin-

l

uing nuisance and sue for damages as they accrue.

JURISDICTION

This case is not properly subject to the juris-

diction of this Court. Under 28 U.S.C. § 1257(3),

lThe California Supreme Court also held that a

public entity lacking the power of eminent domain

may be sued for inverse condemnation. The entire

opinion, along with tie lower court decisions, is

set out as an appendix to petitioner's brief.

2

review by certiorari is only appropriate when sub-

stantial federal questions have been raised at the

State level. Contrary to petitioner's contention,

no federal statutes were ever at issue and no ques-

tion of possible effects upon interstate commerce

was ever raised. Even the scope of this Court's

decision in City of Burbank v. Lockneed Air Termin-

al, Inc., 41] U.S. 624 (1973), was only incidental

to the California Supreme Court's decision.

STATEMENT OF THE CASE

Petitioner, the Burbank-Glendale-Pasadena Air-

port Authority, became a public entity in 1978.

Respondents are homeowners who live in neighbor-

hoods adjacent to the airport and who are subject

to the unsettling effects of its aircraft. Peti-

tioner airport began authoriZing flights over

respondents’ homes in January of 1978. The flights

have resulted in excessive noise, fumes, and vibra-

tion that are detrimental to respondents’ hearing

and health and interfere with the peaceful enjoy-

ment of their residences.

In 1982, the homeowners filed suit in the

California Superior Court to recover’ for property

damage and personal injury. They sought compensa-

tion under theories of both inverse condemnation

and continuing nuisance. A continuing nuisance

claim is not subject to the statute of limitations

and demands payment only of damages suffered be-

fore the action was brougnt. Phillips v. City of

Pasadena, 27 Cal. 2d 104, 107, 162 P.2d 625

(1945). On the contrary, a permanent nuisance

claim must be filed within 100 days after the

accrual of the cause of action and demands payment

of all damages, past and future. See Cal. Gov't

Code § 911.2; Rankin v. DeBare, 205 Cal. 639, 541,

4

271 P. 1050 (1928).* The homeowners ‘sought to

treat the nuisance as continuing and thereby

Skirt the issue of the statute of limitations.

In April of 1983, the Superior Court sustained

a demurrer after finding that the nuisance was

permanent and that the statute of limitations had

run. It held that, under California Law, a per-

manent nuisance is one which is immune from judi-

cial abatement. It then reasoned that, since an

airport may not be enjoined by court order, it is

a permanent nuisance. Thus respondents' claims

were barred by the applicable statute of limita-

tions.

The homeowners appealed their case to the

‘continuing nuisance is really more favorable

to an airport since it assumes that the narm might

abate in the future; whereas permanent nuisance

compensates for all future damage speculatively.

Ironically petitioners sought to be labeled a

permanent nuisance so that the statute of limita-

tions would bar respondents' claims.

5

California Court of Appeals. The Court of Appeals

reversed the lower court's ruling and held that,

under California law, a plaintiff may elect to

treat a nuisance as continuing if it may be volun-

tarily abated. As a result, respondents could

plead continuing nuisance and do so without fear

of a statutory bar.

The California Supreme Court then affirmed the

decision of the Court of Appeals but substituted

its own version of the "“permanent-continuing" dis-

tinction. The court stated that "permanent nui-

Sances are of a type where, by one act, a per-

manent injury is done, and damages are assessed

once for all". 39 Cal. 3d at 868. However, "if

a nuisance is a use which may be discontinued at

any time, it is considered continuing in mature".

Id. at 869. Since airport operations could be

altered so as to discontinue any harmful by-

products, the airport could be classified as

continuing in nature.

|

The decisive issue in this case at all levels

has been whether respondents could characterize

the nuisance as permanent or continuing under

California law. Never has it been questioned

whether respondents' right to plead nuisance is

unconstitutional. Nevertheless, petitioner, in an

attempt to create a reviewable federal issue, has

now belatedly questioned the propriety of nuisance

actions against airports. Such an attempt clearly

violates the well-established Supreme Court rule

that issues brought for review must have been

raised in the state courts. See Brennan, State

Court Decisions and the Supreme Court, 31 Penn.

Barr Assn. Q. 393, 399-400 (1960).

7

ARGUMENT

I

CONTINUING NUISANCE LIABILITY

FOR AIRPORTS IS CONSISTENT

WITH THE SUPREMACY CLAUSE

AS APPLIED BY THIS COURT

IN CITY OF BURBANK V.

LOCKHEED AIR TERMINAL, INC.

A. The Preemption of Nuisance Liability

for Airport was not At Issue in the

Courts Below.

Despite the limited holding in this case,

petitioner now seeks to obtain review in this

Court by creating a question of federal preemption.

In fact, petitioner has never before argued that

state nuisance actions are preempted by federal

law. What it did argue is that, because of the

federal preemption of the control of airports, its

8

operations should be classified as a permanent

nuisance. Any argument about total preemption was

unnecessary since petitioner hoped to characterize

its nuisance as permanent and thus barred by the

Statute of limitations. Because that attempt

failed, petitioner now requests review on the

grounds that nuisance liability violates the supre-

macy clause of the Constitution.

The California Supreme Court's holding hardly

raises a question of the preemption of state nui-

sance actions for airport noise. The posture of

the case on demurrer lent itself only to the ques-

tion of the characterization of the nuisance. Any

| discussion by the California court of the preemp-

tion of such actions must be viewed as dictum since

petitioner had already conceded the constituion-

9

ality of nuisance actions at the trial level.>

Were this Court now to preempt such actions,

petitioner would return victor in a legal battle

never entertained at the state level. Petitioner

should not now be allowed to raise this novel

argument in a last-ditch effort to absolve itself

of responsibility for harm done to neighboring

residences. See Brennan, State Court Decisions

and the Supreme Court, 31 Penn. Bar Assn. Q.

343, 399-400 (1960).

B. Federal Law Preserves a State's Ability

to Compensate Victims of Airport

Nuisances

3tn demurring on statute of limitations grounds

petitioner stated that plaintiffs "had a statutory

nuisance remedy which they lost because they

failed to act reasonably promptly after determin-

ing that airport operations unreasonably inter-

ferred with the use and enjoyment of their pro-

perty". See Appendix. A-11.

10

State nuisance actions have long been recog-

nized at common law and by statute. See Stiles

v. Laird, 5 c., 120, 63 Am. Dec. 110 (1855). More

specifically, in California, a nuisance cause of

action became codified as early as 1851. Cal.

Civ. Proc. Code : 731 (West 1980). The purpose

of nuisance law is to protect the health and

senses of a state's citizens and preserve the

peaceful enjoyment of their land. Id. Of course,

with the advent of airflight and urbanization, the

goal of nuisance law becomes more difficult to

achieve. The competing interests of modern air

flight and urban living meet head on as airports

and cities become more concentrated. Despite

these developments, Congress has never intimated

that the national system of air transportation is

immune from private nuisance suits.

In 1973, this Court established that federal

regulation of aviation is so pervasive that it

1]

leaves no room for local regulation. City of Bur-

Bank v. Lockheed Air Terminal, Inc., 41] U.S. 624

(1973). However, this Court reserved the question

of an airport proprietor's right to adopt its own

noise control measures. Id. at 635, n. 14. Sub-

sequently, Congress answered this question and

gave proprietors the authority to do so. Airline

Deregulation Act of 1978, Pub. L. 95-504, § 105,

92 Stat. 1708, 49 U.S.C. § 1305. In passing the

Airline Deregulation Act of 1978, Congress stated

in section 105(b)(1):

"Nothing in. . . this section shall be

construed to limit the authority of any

State or political subdivision thereof

or any interstate agency or other poli-

tical agency of two or more States as

the owner or operator of an airport

served by any air carrier certificated

by the Board to exercise its proprietory

powers and rights."

Id. In commenting on this section, the Chair-

person of the Senate Commerce Committee said that

"it was not the intent of the Senate conferees

to limit in any way the normal exercise of the

12

existing propriecors' powers to place nondis-

criminatory restrictions on the operations at an

airport, subject to Constitutional and statutory

limitations". 124 Cong. Rec. 37, 419 (1978)

(statement~of Sen. Cannon). Hence, Congress has

expressly granted airport proprietors authority

Over noise control measures. Since this authority

is not preempted, liability for the detrimental use

of this authority should not be preempted either.

A public entity should be responsible for those

acts over which it has control.

Furthermore, nuisance actions for airport

noise, fumes, and vibration are not novel and

certainly not unknown to Congress. Yet, in the

wake of this Court's City of Burbank decision,

Congress saw fit to maintain the status quo and

made no attempt to bar state damage remedies for

the harmful effects of jet flights over residen-

tial neighborhoods. In contrast, California law-

13

makers had passed legislation as early as 1859

which made it more difficult to obta*’n damages for

the harmful erfects of airperts. Cal. Civ. Proc.

Code § 731(a) (West 1980). Congress has made no

Similar move. Nevertheless, petitioner now asks

this Court to legislate in behalf of Congress

what Congress refrained to do itself.

C. Supreme Court Precedent and Federal

Case Law Support Continuing Nuisance

Liability for Airports.

More than twenty years ago, this Court up-

held the propriety of liability for intrusive air-

flights over residential areas. See Griggs v.

County of Allegheny, 369 U.S. 84 (1962). In the

Griggs case, the plaintiff sought damages for jet

flights that originated and touched down at a

nearby county airport. This Court upheld that

plaintiff's right to sue the county for damages.

14

Similarly, in the case at bar, respondent home-

owners are also seeking damages for the harm

caused by passing aircraft. Unlike the Griggs'

plaintiff, however, respondents not only seek

compensation for the air easement over their

homes, but also seek damages for the inter-

ference with their health and peaceful home life.

Nevertheless, this difference in damages sought

should be of no Constitutional moment. If

Suits for property damages are consistent with the

Supremacy clause, then suits for personal injury

damages are no less consistent. Only local regu-

lation of airports is preempted by Supreme Court

precedent, not local damage actions. See City of

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

624 (1973).

Moreover, the right to sue in state court for

an airport nuisance is not unfamiliar to this

Court. In 1980, this Court denied certiorari in

15

a case where nuisance liability was imposed on an

airport at the State level. Greater Westchester

Homeowners Assn. v. Los Angeles, 26 Cal. 3d. 86,

603 P.2d 1329, 160 Cal. Rptr. 733 (1979), cert.

denied, 449 U.S. 820 (1980). In addition, the

only federal court to entertain such a suit has

recognized a state cause of action. In Luedtke v.

County of Milwaukee, 521 F 2d 387 (7th Cir. 1975),

the Seventh Circuit held that an airport propri-

etor could be liable for a state law nuisance if

the airport failed to comply with federal regu-

lations. The California Supreme Court's deci-

Sion below is consistent with this holding. An

airport proprietor would be liable in California

only for those operations not preempted by

federal control. Not only did the California

Supreme Court recognize "that feaeral law pre-

cludes interference with commercial flight

patterns and schedules", 39 Cal. 3d at 872, but

past California precedent confines liability to

16

operations over which an airport has "substantial

proprietary control". Greater Westchester Home-

Owners Assn., 26 Cal. 3d at 97.

Furthermore, liability for nuisance will in

no way harm the preemptive wall built around air

flight by City of Burbank. On the contrary, air-

ports will remain free from local regulation and

the only decisions affected will be those subject

to locai proprietary control. Even proprietary

decisions will not be the subject of direct local

regulation. Such decisions will be no more

controlled by private nuisance suits than they

are by suits in inverse condemnation -- yet the

latter are decidedly Constitutional. See Griggs

v. County of Allegheny, 369 U.S. 84 (1962). In-

deed, the "just compensation" requirement has

never kept local or federal government from

taking land; it only keeps them honest when they

do so. Likewise, under nuisance law, an airport

17

remains free to control air traffic patterns,

operational procedures, or curfews. Only when it

abuses its power must it answer to the law of

nuisance by way of damages. Hence, a nuisance

cause Of action will preserve responsible decision

making by local entities and prevent the lawless

abuse of their power.

Finally, by declaring state nuisance suits

preempted, this Court would raise airport nui-

sance to a federal cause of action cognizable

only in the federal courts. This seems a strange

result when petitioner readily accepted the juris-

diction of the California courts. Petitioner

could thereby accomplish indirectly at the highest

level what it failed to do at the pleading stage.

Current federal case law recognizes no such ex-

clusive jurisdiction. See Luedtke v. County of

Milwaukee, 521 F. 2d 387 (7th Cir. 1975); Pirolo

v. City of Clearwater, 711 F. 2d 1006, 1009 (11

cir. 1963).

18

I]

INTERSTATE COMMERCE REMAINS PROTECTED

UNDER THE CALIFORNIA LAW

OF CONTINUING NUISANCE

A. The Affect of Nuisance Liability on

Interstate Commerce was Never At

Issue in the State Courts.

As with the question of federal preemption,

the interstate commerce clause was never raised as

a defense in the state courts. Petitioner prof-

fers it now as an attempt to gain this Court's

ear; yet, it is well established that issues

brought for review by certiorari must necessarily

have been argued in the lower courts. Brennan,

State Court Decisions and the Supreme Court, 31

Penn Bar Assn. Q. 393, 399-400 (1960). Other-

wise, issues are denied the ripening of a full

season of lower court debate. Moreover the state

judiciary risk reversal without ever having ruled

—

19

on the matter. For these reasons, a debate over

the scope of the interstate commerce clause should

not be entertained for the first time on review.

B. Evenhanded, Legitimate, Local Action is

Constitutional Unless its Burden on

Interstate Commerce is clearly Excessive

During the period since the Constitutional

Framers first vested the federal government with

the power to regulate interstate commerce, this

Court has kept a careful vigil to protect this

power from usurpation by parochial state inter-

ests. As early as 1829, Chief Justice Marshal]

reviewed the effect of state action upon inter-

state commerce. Willson v. Black Bird Creek Marsh

Co., 2 Pet. 245 (1829). Since then, a consider-

able body of case law has evolved dealing with the

power of a state to affect interstate commerce in

the absence of federal regulation. See e.g.

20

Kassell v. Consolidated Freightways Corp., 450

U.S. 662 (1981) (state interest weighted against

interference with interstate commerce); Southern

Pacific Co. v. Arizona, 325 U.S. 761 (1945) (rela-

tive weights of state and national interes: are

measured); Cooley v. Board of Wardens of the Port

of Philadelphia, 12 How. 299 (1851) (states may

not regulate interests requiring national uni-

formity.

The modern approach to testing the Constitu-

tionality of state laws affecting interstate

commerce is to balance the competing federal and

State interests. This approach was succinctly

outlined in Pike v. Bruce Church, Inc., 397 U.S.

137 (1970). In rephrasing the accepted test,

Justice Stewart stated for a unanimous Court:

"Where the statute regulates evenhanded] y

to effectuate a legitimate local public

interest, and its effects on interstate

commerce are only incidental, it will be

2]

upheld unless the burden imposed on such

commerce is clearlv excessive in relation

to the putative local benefits. (citation)

If a legitimate local purpose is found,

then the question becomes one of degree.

And the extent of the burden that will be

tolerated will of course depend on the

nature of the local interest involved, and

on whether it could be promoted as well

with a lesser impact on interstate

activities."

397 U.S. at 142. Therefore, a law that is decidedly

local, legitimate and evenhanded will pass consti-

tutional muster unless interstate commerce is

excessively burdened.

C. State Nuisance Liability for Airports

Imposes no Undue Burden on Interstate

Commerce.

The constitutionality of a law affecting inter-

state commerce is tested by first determining if

the state's action is of local concern, legitimate

purpose, and evenhanded application. Pike 397 U.S.

at 142. Private nuisance liability for airports

22

meets all of these tests. In the case at bar,

respondent homeowners have sought recovery for the

airport's interference with their health and home

life. The constant stream of airflights with

their noxious side effects are certainly of local

concern. In fact, the local law which created the

airport authority aiso charged it to "diligently

pursue all reasonable avenues available to insure

that adverse effects of noise are being mitigated".

Cal. Gov't Code § 6546.1 (West 1980).

Moreover, the protection of health and safety

has always been considered a legitimate state goal.

In fact, "'if safety justifications are not illusory,

the court will not second guess legislative judgment

about their importance in comparison with related

burdens on interstate commerce.' (citation). Those

who would challenge such bona fide safety regula-

tions must overcome a ‘strong presumption of vali-

dity'." Kassell v. Consolidated Freightways Corp.,

23

450 U.S. 662, 670 (1981). Airport nuisance liability

is just such a bona fide measure since its goal is to

compensate local residents for the harmful effects of

unnecessary nuisances.

In addition to being of local concern and having

a legitimate purpose. nuisance liability also oper-

ates evenhandedly. Evenhandedness requires that the

burdens of state action not fall entirely on those

outside of the state -- burdens must be shouldered

evenhandedly by both those without and those within

a state. The evil this requirement seeks to avoid

is aptly stated by Justice Stone in South Carolina

State Highway Department v. Barnwell Bros., 303 U.S.

177, 185 n.2 (1938):

"(W)hen the regulation is of such charac- _

ter that its burden falls principally

upon those without the state, legisla-

tive action is not likely to be subject-

ed to those political restraints which

are normally exerted on legislation where

it affects adversely some interests

within the (state)."

24

State nuisance liability for airports avoids this

pitfall since the burden of such liability falls

substantially on local airport proprietors as

well as local airlines. Their combined political

voice was avilable to insure that local lawmakers

considered the effect of nuisance liability on air

transportation.

After determining that state action is of

local concern, legitimate purpose, and evenhanded

application, a court must determine the extent of

the burden placed upon interstate commerce. The

California scheme in question is so narrowly

drawn that the burden on interstate commerce is

Slight. Under California law a plaintiff must

show that a defendant employes “unnecessary and

injurious methods of operation" in order for an

airport to be deemed a nuisance. Cal. Civ. Proc.

Code § 73(a) (West 1980). This makes it diffi-

cult to show that an airport has indeed created

25

a nuisance. In addition, California law would

only hold an airport proprietor liable for deci-

sions over which it has control. This precludes

any interference with the federally-regulated as-

pects of air transportation. See Greater West-

chester Homeowners Assn. v. Los Angeles, 26 Cal.

3d 86, 603 P.2d 1329 (1979) cert. denied, 449 U.S.

820 (1980). By implication, Congress left cer-

tain decisions to the parochial control of local

airport proprietors because they assumed such

control would not unduly burden interstate

commerce. Based on that assumption, holding

proprietors liable for those decisions will not

have the uniformity of national air transporta-

tion.

In determining whether the burden that a

scheme places on interstate commerce is "clearly

excessive", a court must look at the "nature of

the local interest involved". Pike v. Bruce

26

Church, Inc., 397 U.S. at 142. In this case,

respondents desire compensation for damages to

their health, property, and tranquility. Such

health and safety measures are schemes which this

"Court has been most reluctant to invalidate. "

Kassel _v. Consolidated Freightways Corp., 450 U.S.

662, 670 (1981). In sharp contrast, local laws

aimed at economic protectionism are rarely up-

held. This deference to health and safety

measures was noted by Justice Jackson in U.P.

Hood & Sons v. DuMond, 336 U.S. 525, 533-35

(1949):

"“(The) distinction between the power of

the state to shelter its people from

menaces to their health or safety and

from fraud, even when those dangers

emanate from interstate commerce, and

its lack of power to retard, burden or

constrict the flow of such commerce for

their economic advantage, is one deeply

rooted in both our history and our law,

ete This court has consistently

rebuffed attempts of states to advance

their own commercial interests by cur-

tailing the movement of articles of

commerce, either into or out of the

27

state, while generally supporting their

right to impose even burdensome regula-

tions in the interest of local health and

Safety.

Therefore, nuisance liability, as an attempt to

protect those subject, to the harmful effects of

airport noise, smoke, and vibration, is a valid

State measure worthy of great deference.

Finally, an otherwise constitutional scheme

will be upheld if no alternative scheme exists

that would have a “lesser impact on interstate

activities". Pike v. Bruce Church, Inc., 397

U.S. 137, 142 (1970). In the case at bar, no

such alternative scheme exists. The only other

means available to compensate homeowners is

through an action in inverse condemnation. How-

ever, inverse condemnation is no less burden-

some on interstate commerce. While nuisance

liability requires only the payment of accrued

damages, inverse condemnation requires payment

28

of all damages, past and future -- a highly

speculative award. Hence, under inverse condem-

nation, an airport would be liable for damages it

might never create. As a result, airport nui-

sance liability is the least restrictive means

available to compensate the victims of unneces-

Sary noise, fumes, and vibration.

CONCLUSION

The California Supreme Court in Baker v.

Burbank-Glendale-Pasadena Airport Authority inter-

preted California nuisance law in a manner con-

sistent with this Court's past precedents and

federal law. Because issues of constitutional

dimension were never raised below, and because

the decision below nevertheless conforms with

constitutional standards, respondents respect-

fully oppose the Petition for Writ of Certiorari

29

and ask that it be denied.

Respectfully submpitt

hu —

John Sdhimmenti

ounsel of Record

Schimmenti, Mullins &

Berberian

Attorneys for Respondents

APPENDIX A

A-]

APPENDIX

Petitioner's Second Supplemental Memoran-

dum in Support of Demurrer to Amended Com-

plaint

Defendant Burbank-Glendale-Pasadena Airport

Authority (the "Airport") respectfully submits the

following Supplemental Memorandum in Support of

Demurrer to Amended Complaint.

I. Preparatory Statement

The crucial question in termining the vi-

ability of the Airport's demurrer to plaintiffs'

inverse condemnation cause of action is whether

California Government Code Section 6546.1 pro-

hibits the Airport from condemning avigation ease-

ments over plaintiffs’ properties. The Court has

asked the parties to submit briefs analyzing the

legislative history of Section 6546.1 and to

focus, in particular, on the amemdment to that

Section adopted in 1978 by the passage of S.B.

A-2

1364.

As the record of S.B. 1364 demonstrates, the

Legislature carefully considered the language

utilized to limit the Airport's eminent domain

power. A Legislative Counsel's opinion was soli-

cited and obtained as to the meaning of the

phrase “fee title" in the final version of the

bill. As the following analysis demonstrates,

the facts compel the conclusion that, as amended

in 1978, Section 6546.1 restricts the Airport

from condemning easements.

Il

The Legislature was aware that "Fee Title"

Included Title to Easements

As we noted previously, the portion of

Government Code Section 6546.1 (hereinafter

"Section 6546.1") which prohibits the purchase of

fee title to condemned real property was added by

S.B. 1364 on March 24, 1978. During considera-

SA tina el le te “ime

A-3

of the amendment to Section 6546.1, State Senator

Newton R. Russell, the author of S.B. 1364,

requested the Legislative Counsel's Office to

advise the Legislature concerning the effect of

a proposal to add the words "fee title" to the

bill. Senator Russell's request is attached as

Exhibit "A" to the Declaration of Kay Lentz

filed concurrently herewith. The Legislative

Counsel's opinion is attached thereto as Exhibit

“es

In interpreting the phrase "fee title", the

opinion of Legislative Counsel principally relies

upon Civil Code Section 762. That Section and

the Legislature Counsel opinion define a "fee"

as every estate of inheritance. "Fee title" was

defined by Legislative Counsel as "the property

or fee which is inheritable. . ." (Emphasis

added). The Legislature was, therefore, fully

aware of the broad scope of the term "fee

title", under California law. Indeed, the case

A-4

law is clear that the definition of "fee" in

Civil Code Section 652 has always included ease-

ments which are transferable or inheritable.

See Gerhard v. Stephens, 68 Cal.2d 85, 884-85

(1968); Johnson v. Ocean Shore Railroad Co., 16

Cal.App.3d 429, 434-35 (1971). See also, Red

Bluff Developers v. County of Tehama, 258 Cal.

App.2d 668, 671-72 (1968).

The specific question in Gerhard was whether

a profit a prendre could be lost by abandonment

notwithstanding the rule that legal title to a

fee simple could never be abandoned. Gerhard

acknowledged that the common law applied identi-

cal principles to both easements and profits.

Gerhard outlined those principles and they are

the rules which control the meaning of the langu-

age used by the Legislature in this case.

The California Supreme Court held, in Ger-

hard, that an easement is an estate in real pro-

perty; if the easement is unlimited in duration,

A-5

it is a freehold interest, an estate in fee,

and real property. Moreover, this estate in

real property is necessarily granted and held

separate and apart from the surface title. It is

a valuable interest which may be transferred or

inherited. 68 Cal.2d at 877-81. The Court in

Gerhard summarized these attributes:

"'(T)he interest in land which an

easement constitutes is real property and

itself may be held in fee simple. .

(Highland Realty Co. v. City of San Rafael

(1956), 46 Cal.2d 669, 677 fn. 1 (298

P.2d 15); Appeal of North Beach & M.R.R.

Co., supra, 32 Cal. 499, 509; City of

Glendora v. Faus (1957), 148 Cal.App.2d

920, 291 (307 P.2d 976); Ocean Shore R.R.

Co. v. Doelger (1954), 127 Cal. App.2d

392, 398-399 (274 P.2d 23); Irvin v.

Petitfils (1941), 44 Cal.App.2d 496,

500 (112 P.2d 688); Eastman v. Piper

91924), 68 Cal.App.2d 554, 562 (299 P.

1002); 17 Cal. Jur. 2d Easements, §2 pp.

90-91). 68 Cal.2d at 881.

The Court in Gerhard specifically refered

to Civil Code Section 762, citing that Section

for the proposition that the word "fee" refers

to any estate of inheritance as opposed to a

description of the possessory rights of surface

A-6

ownership. 68 Cal. 2d at 884-85. Indeed, the

Court traced the attribute of inheritability of

an easement as far back as Blackstone's Commen-

taries. 68 Cal.2d at 885.

Given this context, it is manifest that

the Legislature's choice of the words "fee titie"

in S.B. 1364 was not a case of poor draftsmanship

or inadvertence. The extent of the limitation of

the Airport's power to condemn was the subject of

focused inquiry resulting first in the proposed

addition of the phrase "fee title" to Section

6546.1, and ultimately, in a Legislative Counsel's

opinion. The scope of the term fee title was

was therefore known to the Legislature to in-

clude easements and it must be so construed to

effectuate the legislative intent. This con-

struction is not only compelled by the legal

analysis conducted by the legislators but, as

demonstrated below, is essential to the proper

operation of Section 6546.1.

aes

A-7

III

The Prohibition against Acquisition of

Air Easements is Consistent with the

Legislature's Purpose in Enacting Section

6546.1.

As detailed in the Airport's Supplemental

Brief filed on January 12, 1983, Title 21 of

the California Administrative Code defines a

"Noise Impact Area" as the sum, in square statute

miles, of all “Incompatible Land Uses" within the

“Noise Impact Boundary". Chief among incompa-

tible land uses is residential property, and the

law requires that all such incompatible uses be

eliminated from within the noise impact boundary.

Attached hereto as Exhibit "A" is a conceptual

sketch that appears in the California Administra-

tive Code which demonstrates these concepts as

they apply to a hypothetical airport. The sketch

identifies by cross-hatching those areas within

cilia aieieaeiaeamaial

A-8

the noise impact boundary which are incompatible

(i.e., residential) and which must be eliminated.

This is the "noise impact area". In terms of

this sketch, the law requires that all cross-

hatched areas be eliminated. There are at

least three ways for the hypothetical airport

depicted in Exhibit "A" to accomplish this legis-

lative mandate.

The first would be to operate the airport such

that the noise impact boundary would shrink to

encompass only the area shown as zoned for air-

port, industrial or commercial uses. Such a re-

sult is patently unlikely absent the elimination

of all jet aircraft or similarly drastic opera-

tional modifications. A second alternative

potentially available to an airport would be the

conversion of residential communities by the con-

demnation and purchase of all residential areas

within the existing boundary. There is no dis-

pute that this alternative is unavilable to the

A-9

Burbank-Glendale-Pasadena Airport by virtue of

Section 6546.1. A third alternative is the con-

demnation and purchase of air easements over the

cross-hatched areas. This alternative is

generally available because Title 21 defines

property subject to an avigation easement, in-

cluding residential property, as a compatible

land use. As a compatible land use, such pro-

perty is not included in the calculation of the

noise impact area.

As originally enacted in 1975, Section 6546.1

prohibited activities which resulted in an

increase in the size of the noise impact area

based on a community noise equivalent level of

70 decibels. It did not and does not now pro-

hibit an increase in the size of the noise impact

boundary. Therefore, if the facilities had

been sold to the Airport Authority prior to the

1978 amendment, the Airport would have had the

authority to condemn avigation easements over

Al0

residentially zoned property and thereby elim-

inate all existing incompatibie land uses within

the noise impact boundary. Indeed, under the pre-

1978 Section, the Airport could actually increase

the size of the boundary, as long as it condemned

sufficient avigation easements.

The Legislature was willing to support the

transfer of the Airport from Lockheed Air

Terminal, Inc. only on the condition that such

a transfer would not increase the adverse effects

of noise on the surrounding community or result

in an expansion of airport operations. The 1978

amendment to Section 6546.1 ensures that result

by prohibiting the Airport from complying with

Title 21 through the use of the power of con-

demnation. Prior to that amendment, the Airport

could have complied with the letter but not the

intent of Section 6546.1. Thus the Legislature

must be considered to have intended to prohibit

the Airport from condemning easements in resi-

———

All

dential property.

Plaintiffs have suggested that the prohibi-

tion against condemnation deprives them of a

vested remedy. In passing Section 6546.1,

however, it was never the intent of the Legis-

lature to give plaintiffs a new remedy. Plain-

tiffs, who presumably reside near to or within

the Airport's noise impact area, had a statu-

tory nuisance remedy which they lost because

they failed to act reasonably promptly after

determining that airport operations unreasonably

interfered with the use and enjoyment of their

property. The Legislature had no constitutional

duty to afford these plaintiffs a new remedy

merely because the Airport was transferred from

a private entity to public ownership.

Plaintiffs never had an inverse condemnation

remedy against Lockheed Air Terminal, Inc., the

Airport's predecessor. That is the holding of

Abacherle. Therefore, when the facilities were

Al2

transferred to the Airport, plaintiffs lost

nothing. There is simply no legal basis to the

assertion that the Legislature's restriction upon

the ability to condemn property somehow worked a

forfeiture of their rights amounting to an ex

post facto application of the law. The statute

can and does operate only in a prospective

manner.

IV

Conclusion

The Legislature added the term "fee

title" to Section 6546.1 knowing that the term

encompassed any rights in real property subject

to ownership in fee including an easement. This

was a considered decision by the Legislature

intended to aid in managing the noise problem at

the Airport. In essence Section 6546.1 is a

legislative directive to the Airport to operate

the facilities in such a manner as to reduce the

impact of noise. It is beyond doubt that the

Al3

Legislature did not wish the Airport to achieve

compliance with this mandate by purchasing avig-

ation easements. As it is thus barred by sta-

tute from condemning such easements, the Airport

cannot, as a matter of law, be liable in inverse

condemnation for failing to exercise a power it

lacks. The demurrer to the First Cause of

Action in the Amended Complaint is well taken

and should be sustained. The demurrer to the

Second Cause of Action having previously been

sustained, judgment in favor of the defendant

should be entered.

Kadison, Pfaelzer, Woodard,

Quinn & Rossi

Richard K. Simon

Michael C. Kelley

James I Ham

by MICHAEL C. KELLEY

Attorneys for Defendant

Burbank-Glendale-Pasadena

Airport Authority

|

Agricul rr

Agricultural

a

ol

olse Impoct Boundo -

i

2%

<

|Qug

5 ae |

r *

Ve

Ps

Veks

{4 /4,)

Vi

The noise Impoct eres is the sum of all the crou-hatched ereas, In square statute miles.

CK

A: sticolly

Pd i ial

FIGURE 1. CONCEPTUAL SKETCH OF NOISE IMPACT BOUNDARY AND NOISE IMPACT AREA

i

FIGURE 1. CONCEPTUAL SKETCH OF N NOISE IMPACT BOUNDARY AND NOISE

IMPACT AREA

EXHIBIT "A"

MB a

PROOF OF SERVICE BY MAIL

I am a citizen of the United States and a resident of the City

and County of Los Angeles; I am over the age of eighteen

years and not a party to the within action; my business

address is: 3550 Wilshire Boulevard, Suite 916, Los +.)

California. On this date, January 22, 198

I served the within RESPONDENTS' BRIEF IN

OPPOSITION in re: "Burbank-Glendale-

Pasadena Airport Authority vs. Kenneth L.

Baker, et al." in the United States

Supreme Court, October Term, 1985, No.

hw @ & me!

on the persons interested in said action by placing 3 true

copies thereof enclosed in sealed envelopes with first class

postage prepaid, in the United States post office mail box at

Los Angeles, California, addressed as follows:

MICHAEL C. KELLEY

KADISON, PFAELZER, WOODARD,

QUINN & ROSSI

Fortieth Floor

707 Wilshire Blvd.

Los Angeles, CA 90017

All parties required to be served

have been served.

I certify (or declare) under penalty of perjury that the

Executed on Sanuary 22, 1986

at Los Angeles, California.

pe ™ :

Lawyer's Brief Service, Inc. / Legal Publishers / (213) 3834457