Petition for Writ of Certiorari — Bucholtz Aviation, Inc. v. City of Buffalo

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: if) Supreme Court, U.S,

89-603 || FiLeED

ee @ OCT 6 1989

No. JOSEPH F. SPANIOL, JR.

CURRK

IN THE

Supreme Court of the United States

October Term, 1989

BUCHOLTZ AVIATION, INC.,

Petitioner,

vs.

CITY OF BUFFALO,

Respondent.

On WRIT OF CERTIORARI TO THE COURT OF

APPEALS OF THE STATE OF NEW YORK.

PETITION FOR WRIT OF CERTIORARI

JAMES L. MAGAVERN*

MAGAVERN & MAGAVERN

Attorneys for Petitioner

20 Cathedral Park

Buffalo, New York 14202

Telephone No.: (716) 856-3500

* Counsel of Record

Batavia Times Publishing Co. Bat nal

Batavia, New York (716 344-2000

Yen ee ee eS Pee ee ee a eh meee ML os ee, en "7 ol » Pe

. oe ats te Me

QUESTIONS PRESENTED FOR REVIEW

1. Has the regulation of airports according to criteria

of ground safety and noise generation been pre-empted

by the Federal Aviation Act, and is an attempt by state

and local government to prohibit the operation of an

airport approved by the Federal Aviation Administration

therefore in violation of the Commerce and Supremacy

Clauses of the United States Constitution?

2. When an airport owner has constructed and opened

an airport in reliance upon a permit issued by a local

government, when the local government later claims that

the ordinance under which the permit was issued was

superseded by subsequent state legislation, and when the

local government has power under the subsequent

legislation to authorize continued operation of the

airport, may the local government, consistent with the

due processes and equal protection clauses, revoke the

original permit and refuse to grant an application for a

new permit without giving the owner an opportunity to

be heard and without consideration of the application on

its merits?

3. Under those circumstances (set forth in the

immediately preceding paragraph), is the owner entitled

to compensation under the just compensation and due

process clauses of the United States Constitution?

4. May a-local government, consistent with the due

process and equal protection clauses, make permission to

establish a heliport dependent upon approval by a

specified percentage of the private persons residing

within a specified distance of the heliport?

The New York Court of Appeals dismissed Bucholtz’s

appeal on all the foregoing issues.

ii.

PARTIES

The parties to the New York court proceeding are

shown in the caption. The Solicitor General of the State

of New York, notified under New York State law because

the constitutionality of a state statute has been drawn in

question, has not intervened.

TABLE OF CONTENTS.

Page

Questions Presented for Review.................. i

UGA E GAG on 46 bc access c cee cedevase ii

CAS sces theo ses cd tececaccseccvecs 1

SEE A SOUS EEE ECE 2

Statutes and Ordinances................2eeee08: 4

TTL CETTE 6

Reasons for Granting the Writ................... 9

1. The Federal Pre-emption Issue .......... 10

2. Due Process and Equal Protection Issues. 11

3. Illegal Delegation of -Power to Private

a ev eec kee ve scree csces 14

EE ee 16

hayes cee b ee desdvceseeces 17

_Appendix ‘‘A’’—Order and Memorandum of the New

York Supreme Court, County of Erie ........... la

Appendix “‘B’’—Order and Memorandum of the New

York Supreme Court, Appellate Division, Fourth

ETON ddan WW wd e6 hs 00406 ca eee cces 64a

Appendix “C’’—Order of the New York Court

ee ee Aas eke i 4 ebb d 00 062 0.0 69,05 lla

Appendix ‘“D’’—Sections 240 and 249 of the New

York General Business Law................... 12a

Appendix “E’’—City of Buffalo Ordinance Relating

to Aircraft, as Amended July 22, 1975.......... 18a

Appendix “F’’—City of Buffalo Ordinance Relating

to Aircraft, as Amended September 15, 1987..... 2la

Appendix “G”—28 U.S.C. §§1348, 1431 ........... 27a

iv.

Page

TABLE OF AUTHORITIES.

CASES.

Allegheny Airlines, Inc. v. Village of Cedarhurst,

238 F.2d 812 (Ad Cir. 1966). ..... 2. c cc ccsveees

Altaire Builders, Inc. v. Village of Horseheads, 551

PF. Gs Re Coe nec Bs RU oh cccscicnecess.

American Airlines, Inc. v. Town of Hempstead, 272

F. Supp. 226 (E.D.N.Y. 1967), affd 398 F.2d 369

(2d Cir. 1968), cert. denied 393 U.S. 1017 (1969) ..

City of Burbank v. Lockheed Air Terminal, Inc., 411

ee es 5 ecb 5 Ea SE Sen eh a tive Vy Be

Eubank v. City of Richmond, 226 U.S. 137

CRE cd dae Db RD ae RRA EKER E EO RE heen se etre e's

First _English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, California,

Se ek ee SN hives re Keene eeasawi wens ss

Hernandez v. City of Lafayette, 643 F.2d 1188 (5th

Cir. 1981), cert. denied 455 U.S. 907 (1982) ......

Lake Country Estates, Inc. v. Tahoe Regional

Planning Agency, 440 U.S. 391 (1979) ..........

Reed v. Village of Shorewood, 704 F.2d 943 (7th Cir.

RB pram pie pS te ee py Barge.

Thomas Cusack Company v. City of Chicago, 242

hs ae ne Wa CAR OMAR eS 8

Washington ex rel. Seattle Title Trust Co., Trustee

v. Roberge, Superintendent of Building of Seattle,

Fe es EE Seas o Fn a RR aCow etek ares ss

Wheeler v. City of Pleasant Grove, 664 F.2d 99 (5th

Cir. 1981), cert. denied 456 U.S. 973 (1982) ..... "

—— oe

Page

CONSTITUTIONAL PROVISIONS.

United States Constitution:

es Dee, 6. Ua cd bs cv eeccesvoue 5

n,n uae bmueckben 5

Fourteenth Amendment ..................... 5,7,16

STATUTES.

New York General Business Law (Book 19 of

McKinney’s Consolidated Laws of New York):

Te ee ee ew a id os 4

U.S.C.:

RRR ASE LB tb se eek OF es Rep 5,11

SIR Iisa ies BERG Olay ae ne eee 5,11

ORDINANCES.

City of Buffalo Code of Ordinances, Chap. VII, §1-A:

As amended through July 22, 1975............. 4,6

As amended through September 15, 1987........ 4,6

IN THE

Supreme Court of the United States

October Term, 1989

No.

BUCHOLTZ AVIATION, INC.,

Petitioner,

vs.

CITY OF BUFFALO,

Respondent.

On WRIT OF CERTIORARI TO THE COURT OF

APPEALS OF THE STATE OF NEW YORK.

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The court in which the proceeding was initiated, the

New York Supreme Court, County of Erie, rendered the

unreported opinion set forth in Appendix “A” (pp. la

through 5a). The Opinion of the Supreme Court,

Appellate Division, Fourth Judicial Department, is

reported at 147 A.D.2d 915, 537 N.Y.S.2d 370, and is

set forth in Appendix “B” (pp. 6a through 13a). The

decision of the Court of Appeals, is reported at 74

N.Y.2d 714, is set forth in Appendix “C’’ (p. 11a).

JURISDICTION

The proceeding was commenced by the City to enjoin

Bucholtz from operating a heliport in the City, claiming

that Bucholtz had failed to obtain the approval of the

Common Council of the City and of the New York State

Commissioner of Transportation pursuant to Section 249

of the New York General Business Law. At issue are the

questions whether attempts to regulate airport

noise and ground safety under that statute have

been pre-empted by the Federal Aviation Act

~ and-whether, if that statute is upheld, the City infringed

Bucholtz’s procedural and substantive due process and

equal protection rights in attempting to revoke a heliport

permit granted to Bucholtz under a City ordinance, and

in failing to grant Bucholtz a hearing and to consider its

application for approval under Section 249 of the General

Business Law.

On May 6, 1988, on a motion and cross-motion for

summary judgment, the New York Supreme Court,

County of Erie, the court of first instance in the case,

ordered a trial of issues of fact and did not pass on any

of the issues of law (Appendix, p. 5a). The order

was entered May 11, 1988. The Appellate Division of the

Supreme Court, Fourth Judicial Department, modified

_ the lower court order by granting a permanent injunction

prohibiting operation of the Bucholtz heliport, in an

order and accompanying memorandum entered February

3, 1989 (Appendix, p. 6a), on the basis of which a

judgment was entered February 14, 1989. On Bucholtz’s

appeal to the New York Court of Appeals on federal and

state constitutional grounds, that Court ordered that the

appeal be dismissed “upon the ground that no

substantial constitutional question is directly involved’’

(Appendix, p. 11a).

The Court of Appeals order (here sought to be

reviewed), was dated June 8, 1989, and entered June 15,

1989 in the Erie County Clerk’s Office. By order signed

by Mr. Justice: Thurgood Marshall, dated August 30,

1989, this Court extended the time for filing this petition

to and including October 6, 1989.

Jurisdiction of this petition for a writ of certiorari is

conferred upon the Supreme Court of the United States

by 28 U.S.C. §1257. The petition draws in question the

validity of a state statute on the ground that it is

repugnant to the Supremacy and Commerce Clauses in

Article I, §8 and Article VI of the United States

Constitution, and claims violations of Bucholtz’s due

process and equal protection rights under the Fourteenth

Amendment to the United States Constitution. The

highest court of New York has held that the statute is

valid, and that Bucholtz’s rights were not violated.

STATUTES AND ORDINANCES

Section 249 of the General Business Law provides that

‘njo person shall hereafter establish a privately-owned

airport or make an airport-improvement to an existing

privately-owned airport except by authorization of the

governing body of the city, village or town within which

such airrort or any part thereof is proposed to be

establishea or improved.” It also requires the local

governing body to request a determination by the State

Commissioner of Transportation that the authorization

would meet his standards. Various terms used in Section

249 are defined in Section 240 of the General Business

Law. Sections 249 and 240 are found in Book 19 of

McKinney’s Consolidated Laws of New York, Annotated,

and are set forth in full in Appendix “D” (pp. 12a-17a).

Section 2(a) of Chapter VII of the Ordinances of the

City of Buffalo (the ‘Ordinance”’), as it read during the

times here pertinent, prescribed height limitations for the

operation of aircraft, but authorized the City Director of

Licenses to grant temporary or permanent permits for

take off or landing of helicopters. A copy of that

Ordinance is set forth in Appendix “E’’ (pp. 18a-20a).

The Common Council of the City amended that

Ordinance on September 15, 1987 to reflect the

requirements of Section 249 of the General Business

Law, and, in addition, to provide that airports may not

be established without the consent of 65% of the persons

residing within 1,500 feet of the site. A copy of the

amended ordinance is set forth in Appendix “F’”’ (pp.

2la-26a) (to be referred to here as the “Amended

Ordinance’’).

The pertinent federal statute is the Federal Aviation

Act of 1958, 72 Stat. 737, 49 U.S.C. §§1301 et seq., as

amended by the Noise Control Act of 1972, 86 Stat.

1234, which grants to the Federal Aviation

Administration broad authority to regulate the navigable

airspace in order, among other purposes, “‘to insure the

safety of aircraft and the efficient utilization of such

airspace,” “for the protection of persons and property on

the ground,” and “for the control and abatement of

aircraft noise’ (49 U.S.C. §§1348, 1431). Those sections

are set forth in Appendix “G”’ (pp. 27a-34a).

As noted above, Article I, §8 (Commerce .Clause),

Article VI (Supremacy Clause), and the Fourteenth

Amendment to the United States Constitution are also

involved.

STATEMENT OF THE CASE

On November 11, 1986, Bucholtz applied to the City

Director of Licenses under Section 2(a) of Chapter VII

of the Buffalo Code of Ordinances (the “‘Ordinance”’) for

a permit to operate a heliport on 14 acres of land in an

industrial zone that he had contracted to purchase (R.

20, 26, 29). On April 3, 1987, the Federal Aviation

Administration approved the site, including the

projected flight paths to be followed at the heliport (R.

36-37). On April 27, 1987, the Director of Licenses

designated the Bucholtz property as a Temporary

Landing Site so long as the required insurance was

maintained (R. 38). Subject to the insurance requirement,

which Bucholtz subsequently satisfied, the permit was

approved by the Commissioner of Police (who later

reported very few complaints about the operation), the

Commissioner of Fire, and the Corporation Counsel of

the City (R. 34, 38, 46; Appendix B to the City’s Brief to

the Appellate Division, pages A3-A4). None of the City

officials involved required any further approvals.

In an opinion rendered on July 16, 1987, the

Corporation Counsel of the City changed his position and

stated that approval of the State Commissioner of

Transportation was required by Section 249 of the

General Business Law for establishment of the heliport

(R. 47). In response, on July 21, 1987, Bucholtz

submitted an application to the Common Council under

that statute, without conceding the correctness of the

interpretation of the Corporation Counsel or validity of

Section 249 (R. 48, 49). The Common Council did not

accord Bucholtz an opportunity to be heard on its

application, and refused to consider it on its merits. The

Common Council waited until September 15, 1987 to

address the application, and on that occasion merely

‘These and other similar references are to pages of the Record on

Appeal before the Appellate Division and Court of Appeals.

noted that it had been received and filed (R. 25). The

Common Council adopted the Amended Ordinance on the

same date.

In reliance on the permit from the Director of Licenses

and actions of other City officials, Bucholtz expended in

excess of $250,000 to improve the heliport, in addition to

the cost of the land (R. 77).

In addition to the use of the Bucholtz facilities for

Mercy Flight rescue operations, the City Police

Department uses them for lifesaving and enforcement

operations, and the Erie County Sheriff uses them for a

variety of critical functions, including rescues and aerial

searches, at times in conjunction with investigations of

the F.B.I. and Drug Enforcement Administration (R. 28,

41-43, 63-64, 77). Public utility companies also use the

facilities for emergency accident and disaster services (R.

77).

The evidence reveals that the efforts of the Common

Council to revoke the Bucholtz permit and close down

the heliport without giving Bucholtz an opportunity to

be heard were made without regard to the important

public interest in providing those services, and without

any consideration of the merits. Rather, the City’s

actions resulted from the generation by the District

Councilman for the area of unwarranted anxiety on the

part of a small group of residents of properties near the

site, for the purpose of gaining support in his re-election

campaign (R. 45, 61-62).

The constitutional issues were raised by Bucholtz’s

Answer to the City’s Complaint, as follows: Federal pre-

emption (Third Affirmative Defense); arbitrariness of the

Common Council’s actions, and failure to accord

Bucholtz equal protection and procedural due process in

violation of Bucholtz’s constitutional Fourteenth

Amendment rights (Sixth Affirmative Defense and

Second Counterclaim, Eighth Affirmative Defense and

Fourth Counterclaim, and Fifth Counterclaim);

constitutional violations in the City’s adoption of the

Amended Ordinance (Seventh Affirmative Defense and

Third Counterclaim); and compensation required if an

injunction is granted (Fourth Affirmative Defense and

First Counterclaim, and Fifth Counterclaim) (R. 95-100).

Bucholtz made these points in the oral argument

before the Supreme Court on the City’s motion and

Bucholtz’s cross-motion for summary judgment, with

one exception.” The Supreme Court did not address these

issues, holding that the ‘‘matter must proceed to trial

where all of the facts and circumstances may be fully

developed before the rights of the parties are

adjudicated” (Appendix, p. 5a).

With the same exception, all the constitutional issues

were raised in Bucholtz’s Briefs to the Appellate

Division.* The Appellate Division modified the lower court

decision by granting the injunction and granting the

City’s motion for summary judgment declaring that the

operation of the heliport was in violation of Section 249

of the General Business Law (Appendix, pp. 6a-7a).

The Appellate Division necessarily, but without stating

its reasons, resolved the constitutional issues against

Bucholtz. Rejecting Bucholtz’s argument that the City

was estopped from revoking the permit granted by the

Director of Licenses under the Ordinance, the Court

merely stated that it had “reviewed defendant’s other

arguments on appeal and [found] them to be without

merit’’ (Appendix, p. 10a).

The Court of Appeals dismissed the appeal to it sua

sponte, without opinion, “upon the ground that no

substantial constitutional question is directly involved”’

(Appendix, p. 11a).

* The challenge to the Amended Ordinance was not argued before the

Supreme Court, because the City took the position that it did not

apply.

* See note 2, supra.

REASONS FOR GRANTING THE WRIT

The federal questions presented are substantial. They

present important questions of federal law in conflict

with the decisions of this Court, federal courts of

appeals, or other state courts of last resort, or which

have not been resolved by this Court.

In holding that Section 249 of the General Business

Law, as applied in this case, authorizes the regulation of

heliport locations and operations with respect to noise

effects, the decision of the New York Court of Appeals is

in direct conflict with the decision of this Court in City

of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624

(1973). See also American Airlines, Inc. v. Town of

Hempstead, 272 F.Supp. 226 (E.D.N.Y. 1967), affd 398

F.2d 369 (2d Cir. 1968), cert. denied 393 U.S. 1017 (1969).

In authorizing such regulation on grounds of air or

ground safety, the decision in question is in conflict with

the rationale, though not the direct holding, of Burbank.

And see Allegheny Airlines, Inc. v. Village of Cedarhurst,

238 F.2d 812 (2d Cir. 1956).

If allowed to stand without clarification or resolution

by this Court, this decision of the New York Court of

Appeals may result in uncertainty as to the validity of

statutes of other states with provisions similar to those

of Section 249 of the New York General Business Law,

and in a proliferation of state laws and local ordinances

prohibiting heliports and other small airports and

thereby forcing helicopters and small aircraft into major

airports, with consequent congestion and risk to the

safety of their operation.

As indicated by the use of the Bucholtz facilities by

the Buffalo Police Department, Erie County Sheriff,

F.B.I. and Drug Enforcement Administration for

investigative and law enforcement purposes, the

;

provision of convenient heliport landing sites in urban

areas serves important public interests. The New York

courts in the instant case have sent the message that

such public interests may be casually subjugated to the

narrow self interests of individual elective public officers

catering to the whims and personal convenience of small

groups of citizens. This is arbitrary government action in

its most blatant form, particularly where, as here,

heliport operators are denied basic procedural due

process in their efforts to serve important civic

objectives. |

1. The Federal Pre-emption Issue

Section 249 of the General Business Law requires

approval by the New York’ State Commissioner of

Transportation and the governing body of the

appropriate city, village or town for the establishment or

improvement of a privately-owned airport. The criteria to

be considered by the Commissioner are ‘“‘the safety of

public buildings or facilities, or operations on public

highways or waterways’’ and ‘‘the safety of operations at

other airports’’ (Appendix, p. 18a). The reasons given

by the City for its refusal to approve Appellant’s heliport

were that it is allegedly hazardous and noisy (City’s Brief

to the Appellate Division, pp. 6, 10, 11). The area of

regulation covered by all of those criteria—ground

safety, air space safety, and noise—has been pre-empted,

we submit, by the Federal Aviation Act. (Any question

of residual state or local authority to regulate airport

location within the context of land use control laws and

procedures is irrelevant to this litigation, since the site of

the Bucholtz heliport is zoned industrial, and the heliport

was established in compliance with local land use

planning laws.)

In City of Burbank v. Lockheed Air Terminal, Inc., 411

U.S. 624 (1973), the Court held that the Federal Aviation

Act of 1958, as amended by the Noise Control Act of

1972, pre-empted state and local control over the

regulation of aircraft noise. The decision nullified a city

ordinance prohibiting landings and take-offs by jet

aircraft between certain hours. The Court pointed out

that such restrictions would cause a bunching of flights,

increased congestion, a loss of efficiency in the use of the

airspace, and an aggravation of the noise problem in

surrounding communities. It noted that the Federal

Aviation Act “requires a delicate balance between safety

and efficiency, 49 U.S.C. §1348(a) and the protection of

persons on the ground, 49 U.S.C. $1431(d)(3),” and held

that, the ‘interdependence of these factors requires a

uniform and exclusive system of federal regulation

***”’ Although the Court in Burbank was required to

decide only that regulation of noise was pre-empted, the

rationale of its decision applies with equal force to the

regulation of air safety and ground safety. Hence Section

249 of the General Business Law, deemed by the New

York courts in this case to address both air and ground

safety concerns, and the City’s attempt in this case to

regulate noise and ground safety, would seem to be

clearly pre-empted by the Federal Aviation Act and

invalid under the Supremacy and Commerce Clauses of

the United States Constitution. The question merits

review by this Court.

2. Due Process and Equal Protection Issues

The City issued Bucholtz a permit to establish the

heliport. After Bucholtz had constructed and opened it in

reliance upon the permit, at a cost of over $250,000, the

City took the position that authorization by tne Common

Council was required under Section 249 of the General

| |

Business Law. Bucholtz then submitted an application

for such authorization. Contrary to advice given by the

City’s Corporation Counsel, the Common Council did not

request a review of the application by the State

Commissioner of Transportation. After letting several

weeks go by, the Council merely adopted a resolution

that the application be “‘received and filed” (R. 60; Brief

of the City to the Appellate Division, p. A19). The

Common Council refused to grant Bucholtz a hearing on

its application or to consider it on the merits, and the

City, in effect revoking the permit it had already

granted, sued to close the heliport.

In providing that a privately-owned airport may not be

established except by authorization of the municipal

governing body, Section 249 of the General Business

Law implies a right to apply for such authorization.

Under New York~law, the function of the Common

Council in passing on applications under that statute is

administrative in nature, in the category of special

permits in which the applicant’s property is in the

correct zoning district, but his proposed use of the

property requires special permission to enable the

authorities to ascertain whether it meets express or

implied standards. See Altaire Builders, Inc. v. Village of

Horseheads, 551 F. Supp. 1066, 1072-1073 (W.D.N.Y.

1982). Accordingly, the Common Council is required to

comply with procedural due process requirements

applicable to administrative proceedings.

The question is not whether the City was estopped by

its prior approval under the City Ordinance from

revoking the permit it had given Bucholtz, or whether

the Common Council is required to grant an application

made under the General Business Law for its approval of

a heliport. Rather, the question is whether, after

determining that Bucholtz required the further approval

of the Common Council, the City satisfied the demands

of constitutional due process and equal protection in

denying it the right to have its application for the

additional approval heard and considered on the merits.

The Common Council was telling Bucholtz, in effect:

“Although the General Business Law gives you a right

to apply for our approval of your heliport, and that is

what you should do, we will not entertain your

application. We will not consider it.”

In the posture of the case at the time Bucholtz

presented its application under Section 249, Bucholtz

was operating the heliport with the express approval of

the Director of Licenses, with the implied approval of the

Corporation Counsel of the City, and in compliance with

the existing City ordinance governing the subject. At the

time, no court had ruled that the Ordinance under which

the permit was granted was invalid. Under the

circumstances, Bucholtz’s interest in the heliport was

then real and valuable. It was not starting from scratch

as in the case of an applicant for a license with no

history of prior government approval, and with no

economic stake put up in reliance on the government's

own actions. Bucholtz had more than a_ unilateral

expectation of City approval. It had already been

authorized by City officials, acting under delegation of

authority by the Common Council, with findings that the

Bucholtz site was a safe and proper location for a

heliport, and that the establishment of the heliport was

in the public interest. The Federal Aviation

Administration had approved the site and the heliport’s

flight patterns. Their judgment was compatible with the

prior determination of the Common Council itself that

heliports were appropriate uses of land in the City if

approved by the Director of Licenses and Commissioners

of Police and Fire.

We submit that the circumstances spell out a category

of flagrant abuse of principles of fair play embodied in

federal constitutional guarantees of due process and

equal protection. We have found no decisions of this

Court directly in point, possibly because of the bizarre

nature of the behavior of the Common Council. The

situation is closely analogous, however, to the classes of

cases in which license renewals are denied without

according the applicant a hearing or benefit of

consideration of the merits (e.g., Reed v. Village of

Shorewood, 704 F.2d 943 (7th Cir. 1983)), or a certificate

of occupancy is arbitrarily denied following the granting

of a building permit (see Sullivan v. Town of Salem, 805

F.2d 81 (2d Cir. 1986)).

3. Illegal Delegation of Power to Private Citizens

Although the City has taken the position that the

Amended Ordinance does not apply to this case—it was

enacted several weeks after Bucholtz sought Common

Council approval under the law then applicable—the

Appellate Division stated in its opinion that Bucholtz

could apply under the Amended Ordinance (Appendix, p.

10a). Under the circumstances it was incumbent on

Bucholtz to address its challenge to the validity of the

amendment, which it did in its Brief to the Court of

Appeals. The Court of Appeals necessarily determined

the issue in its blanket dismissal of all Bucholtz’s

constitutional claims.

In providing that no privately-owned airport shall be

established or improved if the proposed location is within

1,500 feet of property used for residential purposes,

“Overlooking the fact that Bucholtz already had an application

pending under Section 249 of the General Business Law, a self-

executing law requiring no legislative action on the part of the City,

so Bucholtz did not need to file a new application under the Amended

Ordinance.

unless the prohibition is waived by presentation to the

Common Council of a petition requesting the waiver

signed by 65 percent or more of those “‘persons having

their residence within 1,500 feet of the proposed location

or improvement,” in effect the Common Council

delegated the authority to a small group of persons to

determine, ‘‘solely for their own interest or even

capriciously,” the rights of those in Bucholtz’s position.

Eubank v. City of Richmond, 226 U.S. 137 (1912). The

attempted delegation of power is repugnant to the due

process clause of the United States Constitution. Jd.; and

Washington ex rel. Seattle Title Trust Co. Trustee v.

Roberge, Superintendent of Building of Seattle, 278 U.S.

116 (1928). (The Amended Ordinance also suffers from

unconstitutional vagueness in failing to define the

“persons” entitled to sign waiver petitions. Does it

include first- or second-grade children who can write

their names, but would not normally be capable of

understanding what they are signing?)

The Amended Ordinance does not lie within the

exception, enunciated in Thomas Cusack Company uv.

City of Chicago, 242 U.S. 526 (1916), authorizing

neighborhood waivers of restrictions on uses of property

deemed to constitute nuisances. The Amended Ordinance

does not contain any express or implied finding that

helicopter landing and take-cff sites are nuisances. On

the contrary, the history of the Amended Ordinance

demonstrates that its sole objective was to close down

Bucholtz’s heliport in order to support the re-election

campaign of a single City Councilman.

4. The Damages Claim

Bucholtz seeks compensation under 42 U.S.C. §1983

for the destruction of its investment made in reliance

upon the City’s initial permission to develop the heliport.

If the permanent injunction were to stand, this does not

mean that the City is exonerated from liability for

damages caused to Bucholtz by the City’s treatment of

Bucholtz’s permit from the Division of Licenses, or the

City’s refusal to consider Bucholtz’s application for

approval under Section 249 of the General Municipal

Law. Under those circumstances Bucholtz would be

entitled to damages for actions by the City in destroying

its heavy investment in the heliport, amounting to a

taking without just compensation in violation of the

Fourteenth Amendment to the United States

Constitution. This is not the case of a proper exercise of

municipal police power barring a remedy for a civil zights

violation. The basis of Bucholtz’s counterclaim for

compensation is the improper exercise of the City’s police

power in leading Bucholtz to make large expenditures in

reliance on the initial heliport permit, then, after

disclaiming the initial permit on the ground that it was

granted under an invalid ordinance, refusing to consider

its later application for heliport approval under the

General Municipal Law. See First English Evangelical

Lutheran Church of Glendale v. County of Los Angeles,

California, 482 U.S. 901 (1987); Lake Country Estates,

Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391

(1979); Sullivan v. Town of Salem, 805 F.2d 81 (2d Cir.

1986); Wheeler v. City of Pleasant Grove, 664 F.2d 99

(5th Cir. 1981), cert. denied 456 U.S. 973 (1982);

Hernandez v. City of Lafayette, 643 F.2d 1188 (5th Cir.

1981), cert. denied 455 U.S. 907 (1982).

CONCLUSION

This case presents issues of serious concern to the

people of the City of Buffalo, County of Erie, and other

communities nation-wide in which the public benefits of

convenient heliport facilities may be denied by arbitrary

municipal restrictions, which will lead to air traffic

congestion and hazard by forcing a concentration of

helicopters and other small aircraft into large airports. In

addition, the case raises the question, not yet addressed

by this Court, whether municipalities may deliberately

use their own invalid legislation as a basis for denying

persons due process rights and the right to equal

protection of the law.

Respectfully submitted,

JAMES L. MAGAVERN*

MAGAVERN & MAGAVERN

Attorneys for Petitioner

20 Cathedral Park

Buffalo, New York 14202

* Counsel of Record

ea ee eT ee NT nee

APPENDIX “A”

Order and Memorandum of the New York Supreme

Court, County of Erie

Order Appealed From

Filed

May 11 1988

Erie County

Clerk’s Office

ORDER

STATE OF NEW YORK

SUPREME COURT—County of Erie

ra}

CITY OF BUFFALO, NEW YORK,

Plaintiff,

vs.

BUCHOLTZ AVIATION, INC.,

2760 Sheridan Drive,

Buffalo, New York 14150,

Defendant.

Index No. H-91771.

rs}

Upon the notice of motion of the Plaintiff for summary

judgment, dated January 25, 1988; the affidavit of

Samuel F. Houston, Esq., Corporation Counsel of the

City of Buffalo, dated January 25, 1988, in support of

Plaintiff's motion; the notice of cross motion of the

Defendant, dated February 18, 1988; the affidavit of

Harold Bucholtz, dated February 18, 1988, and the

affidavit of Thomas Higgins, Sheriff of Erie County,

New York, dated February 18, 1988, both in opposition

to Plaintiff's motion and in support of Defendant’s cross-

motion; the complaint, the answer, and all prior

proceedings in this matter; and

The Supreme Court, Special Term, having considered

the above papers at a hearing on February 23, 1988;

having heard the Corporation Counsel, James J.

McLoughlin, Esq., of Counsel, in-support of Plaintiff’s

motion and in opposition to Defendant’s cross motion,

and Magavern and Magavern, James L. Magavern, Esq.,

of Counsel, in opposition to Plaintiff's motion and in

support of Defendant’s cross-motion; and having

rendered a decision, dated April 25, 1988, denying

Plaintiff's motion and Defendant’s cross-motion; it is

ORDERED that the motion of Plaintiff for summary

judgment and the cross-motion of Defendant are hereby

denied.

Dated: Buffalo, New York

May , 1988

PENNY M. WOLFGANG

Justice of the Supreme Court

ENTER:

Granted

May 6 1988

Michelle J. Parmer

Court Clerk

Memorandum Decision Upon Which Order was Based

STATE OF NEW YORK

SUPREME COURT—County of Erie

—S

CITY OF BUFFALO, NEW YORK,

Plaintiff,

vs.

BUCHOLTZ AVIATION, INC.,

Defendants.

Index No. H-91771.

——

—_

SAMUEL F. HOUSTON, ESQ.

Corporation Counsel

BY: JAMES McLOUGHLIN, ESQ.

Assistant Corporation Counsel

1100 City Hall

Buffalo, New York 14202

Attorney for Plaintiff

MAGAVERN & MAGAVERN

JAMES L. MAGAVERN, ESQ., Of Counsel

20 Cathedral Park

Buffalo, New York 14202

Attorneys for Defendant

MEMORANDUM

WOLFGANG, J.

In September of 1987, the City of Buffalo commenced

a declaratory judgment action against the defendant by

service of a summons and complaint. By their complaint,

plaintiff sought an order declaring defendant’s heliport

operation illegal and unauthorized in that it was not in

compliance with the appropriate provisions of the

General Business Law of the State of New York.

Plaintiff further sought both a Preliminary and

Permanent Injunction prohibiting the operation of the

heliport unless and until defendant complied with the

General Business Law and permission for such operation

was given by the City of Buffalo Common Council.

By Order entered and granted on November 5, 1987,

this Court denied plaintiff's request for a preliminary

injunction. The Court’s Memorandum Decision stated in

applicable part, as follows:

“In this case, the plaintiff City of Buffalo has

failed to establish either irreparable injury or that a

balancing of equities favors their position. To the

contrary the record reveals that defendant Bucholtz

Aviation, Inc. relied upon the representations of

Officials of the City of Buffalo before commencing

operations. It is therefore inequitable for the City of

Buffalo to now ask this Court for a preliminary

injunction, enjoining the defendant from conducting

business pending final determination of this action,

when the City itself gave approval for the

commencement of operations at the heliport.”

The plaintiff, City of Buffalo, now moves this Court for

summary judgment pursuant to CPLR $3212 upon the

ground that there are no triable issues of fact and that

there is no merit to the defenses asserted by defendant.

It is the contention of plaintiff that the laws of the State

of New York prohibit the establishment and operation of

a privately owned airport unless (1) there has been

authorization by the governing body of the municipality

within which the airport is physically located and (2) the

State Commissioner of Transportation has made a

determination that the airport is-in compliance with

Commission standards. Plaintiff also contends that it is

undisputed that the Common Council of the City of

Ee uy a

Buffalo has not approved defendant’s application for

permission to establish the heliport and further, that the

State Commissioner of Transportation has not

determined that the establishment of the heliport

complies with his standards.

The defendant seeks dismissal of plaintiff's motion and

has further cross-moved for the following relief: (1)

dismissal of the complaint, (2) a declaration that the

heliport has been lawfully established pursuant to the

Ordinances of the City of Buffalo, (3) an Order directing

the Common Council to request a determination by the

New York State Commissioner of Transportation as to

whether the said heliport conforms to his standards, (4)

‘an Order permanently enjoining plaintiff City of Buffalo

from interfering with the operation of the heliport until

such time a8 the City pays just compensation for their

proposed termination of the heliport, and (5) as

alternative relief, an Order declaring that plaintiff City of

Buffalo shall be prohibited from interfering with the

operation of the heliport unless and until the City of

Buffalo has requested the New York State Commissioner

of Transportation to determine whether or not the

defendant’s heliport complies with his standards and the

Commissioner has made a negative determination.

The Court has fully reviewed all pleadings, affidavits

and documentation submitted by both parties and, after

said review, denies all motions. The matter must proceed

to trial where all of the facts and circumstances may be

fully developed before the rights of the parties are

adjudicated (see Wolff v. 969 Park Corp., 86 AD2d 519).

Submit Order.

PENNY M. WOLFGANG

J.S.C.

Dated: Buffalo, New York

April 25, 1988

APPENDIX “B”

Order and Memorandum of the New York Supreme

Court, Appellate Division, Fourth Department

SUPREME COURT OF THE STATE

OF NEW YORK

Appellate Division, Fourth Judicial Department

1632

Present: DILLON, P.J., DOERR, BOOMER,

GREEN, PINE, JJ.

-{)

CITY OF BUFFALO, .

Appellant-Respondent,

BUCHOLTZ AVIATION, INC.,

Respondent-Appellant.

rs)

The above named City of Buffalo having appealed to

this court from certain parts of an order of the Supreme

Court, entered in the Erie County Clerk’s office on May

11, 1988 and Bucholtz Aviation, Inc., having appealed

from certain parts of said order and said appeals having

been argued by William Carey of counsel for appellant-

respondent, James Magavern of counsel for respondent-

appellant, and due deliberation having been had thereon,

It is hereby ORDERED, That the order so appealed

from be and the same hereby is unanimously modified on

the law to grant plaintiff the injunctive relief it seeks

and to grant plaintiff summary judgment as follows:

Adjudged and declared that the heliport is being

operated in violation of General Business Law §249

and as modified the order is affirmed without costs.

Memorandum which is hereby made a part hereof.

Entered: February 3, 1989

CARMEN S. LEONE, Clerk

Supreme Court,

Appellate Division,

Fourth Judicial Department,

Clerk’s Office, Rochester, N.Y.

I, CARMEN S. LEONE, Clerk of the Appellate

Division of the Supreme Court in the Fourth Judicial

Department, do hereby certify that this is a true copy of

the original order, now on file in this office.

IN WITNESS WHEREOF, I have hereunto set my

hand and affixed the seal of said Court at the City of

Rochester, New York, this Feb 3 1989.

CARMEN S. LEONE

Clerk.

(Seal)

1632. (Erie Co.)—City of Buffalo, Appellant-Respondent,

v Bucholtz Aviation, Inc., Respondent-Appellant—Order

unanimously modified on the law to grant judgment in

accordance with Memorandum herein and as modified

affirmed without costs. Memorandum: Plaintiff moved

for summary judgment declaring that defendant is

operating a heliport within the limits of the City of

Buffalo in violation of General Business Law §249.

Plaintiff also seeks a permanent injunction enjoining the

heliport operation. Defendant cross-moved for summary

judgment seeking, inter alia, a declaration that the

heliport was lawfully established pursuant to an

ordinance of the City of Buffalo then in effect (see,

former Buffalo Code, ch VII, art I-a, §2 [a]). Supreme

Court’s order denying both motions must be modified

and summary judgment granted to plaintiff.

On February 23, 1987, defendant completed the

purchase of land intended for use as a heliport site. Prior

to the closing, defendant had applied to the Federal

Aviation Administration (FAA) for approval and had

applied to the City Director of Licenses for a permit to

use the property as a heliport. On April 3, 1987, the

FAA approved defendant’s application for use of

airspace and on April 27, 1987, the License Director,

with the approval of the Police Commissioner, issued a

temporary permit to the defendant to use the site as a

heliport.

In issuing the permit, the Director of Licenses acted

under an ordinance which had been in effect before

enactment of General Business Law §249, which became

effective January 1, 1970. Section 249 requires the

authorization of the local legislative body and a

determination by the State Commissioner of

Transportation of compliance with his regulations before

any airport facility may be approved. The former

ordinance, which provided for local authorization by the

Director of Licenses and Commissioner of Police but not

the Common Council, and permitted local approval

without a state determination of compliance, was

inconsistent with General Business Law $249 and was,

therefore, invalid (see, Pero v City of Batavia, 99 AD2d

668, affirmed 63 NY2d 971). The Director of Licenses was

powerless to authorize the heliport and the temporary

permit he issued was without legal effect (see, Matter of

EFS Ventures Corp. v Foster, 71 NY2d 359, 371). It

follows that plaintiff is entitled to a declaration that the

heliport is being operated in violation of General

Business Law $249.

We also conclude that plaintiff is entitled to the

injunctive relief it seeks. In this regard, there is no merit

to defendant’s argument that the doctrine of estoppel

should be invoked against plaintiff. Generally, estoppel

may not be invoked against a municipality to prevent it

from discharging its statutory duties or to compel the

ratification of an administrative error (see, Matter of

Parkview Assocs. v City of New York, 71 NY2d 274, cert

GD. icitinuaihinen: 109 SCt 30; Scruggs-

Leftwich v Rivercross Tenants’ Corp., 70 NY2d 849;

Morley v Arricale, 66 NY2d 665). Although the Director

of Licenses erred in issuing a temporary permit for the

heliport, it is equally clear that the exercise of reasonable

diligence by defendant would have readily uncovered the

existence of General Business Law $249 (see, Matter of

Parkview Assocs. v City of New York, supra, at 282).

Defendant should have been aware that it could acquire

legal authorization for the heliport only in accordance

10a

with the requirements of that statute (see, Thomson Ind.

v Incorporated Vil. of Port Washington North, 27 NY2d

537; see also, Matter of Boardwalk & Seashore Corp. v

Murdock, 286 NY 494, 498; Matter of Dyl & Dyl

Development Corp., 31 AD2d 818). Thus the doctrine of

estoppel will not be invoked against plaintiff.

We have reviewed defendant’s other arguments on

appeal and find them to be without merit. We note,

however, that the Common Council has amended the city

ordinance to comport with state law (see, Buffalo Code,

ch VII, art I-a, §3) and defendant is not precluded from

filing an appropriate application for approval of the

heliport operation pursuant to that ordinance. It does

not appear in this record that such an application has

been filed. (Appeal from Order of Supreme Court, Erie

County, Wolfgang, J.—Summary Judgment.) Present:

Dillon, P.J., Doerr, Boomer, Green, Pine, JJ.

lla

APPENDIX “‘C”

Order of the New York Court of Appeals

STATE OF NEW YORK

COURT OF APPEALS

At a session of the Court, held at Court of Appeals Hall

in the City of Albany on the eighth day of June A. D.

1989.

Present: HON. SOL WACHTLER, Chief. Judge,

presiding.

CITY OF BUFFALO,

Respondent,

Vv.

BUCHOLTZ AVIATION, INC.,

Appellant.

4 Mo. No. 588 SSD 40.

The appellant having filed notice of appeal in the above

title and due consideration having been thereupon had, it

ORDERED, that the appeal be and the same hereby is

dismissed without costs, by the Court sua sponte, upon

the ground that no substantial constitutional question is

directly involved.

DONALD M. SHERAW

Donald M. Sheraw

Clerk of the Court

—

12a

APPENDIX “‘D”

Sections 240 and 249 of the

New York General Business Law |

§240. Definitions. :

When used in this article,

1. ‘Aircraft’? means any contrivance, now or hereafter

invented, for avigation of or flight in the air, except a

parachute or other contrivance designed for use, and

carried primarily for safety equipment.

2. ‘“‘Avigation’’ means the steering, directing or

managing of an aircraft, in or through the air; and such

term is here used as a substitute for ‘‘aerial navigation.”’

3. “Operating aircraft’’ means performing the services

of aircraft pilot.

4. ‘Landing area’ means any locality either of land or

water, including airports and intermediate landing fields,

which is used or intended to be used for the landing and

take-off of aircraft, whether or not facilities are provided

for shelter, servicing or repair of aircraft or for receiving

or discharging passengers or cargo. |

5. ‘Airport’? means any landing area used regularly j

by aircraft for receiving or discharging passengers or

cargo; or for the landing and take-off of aircraft being

used for personal or training purposes.

6. “Acrobatic flying’’ means maneuvers not necessary

for normal flight and intentionally performed by an

aircraft, involving an abrupt change in its attitude, an

abnormal attitude or an abnormal acceleration.

7. “‘Administrator of the federal aviation agency”’ |

means the administrator of the federal aviation agency of

the United States.

_ |

iS 13a

8. ‘Airplane’ means a mechanically propelled

aircraft, the support of which in flight is derived

dynamically from the reaction on surfaces in a fixed

position relative to the aircraft but in motion relative to

the air.

9. “Control zone” means an airspace of defined

dimensions extending upwards from the surface of the

ground and including one or more airports and

designated as such by the administrator of the federal

aviation agency.

10. “Flight visibility’’ means the average horizontal

distance that prominent objects may be seen from the

cockpit.

11. ‘‘Helicopter’’ means an aircraft, the support of

which in the air is normally derived from airfoils

mechanically rotated about an approximately vertical

axis.

12-14. Repealed.

15, 16. Renumbered 9, 10.

17. Repealed.

18. Renumbered 11.

l4a

§249. Location of privately-owned airports

1. Legislative findings and purpose. The continuing

development and the rapid growth of air transportation

and the use of aircraft for various purposes, both

commercial and private, during the last twenty years,

has substantially contributed to the economic

betterment, well-being and recreational enjoyment of the

people of the state. The increased number, size and

growth of airports resulting from operation requirements

of newer and larger aircraft operating more frequently

has brought about a conflict of land use. This is of

particular concern to the state in major public works

construction such as highways, public buildings and

facilities. There is authority for municipalities to control

the establishment or improvement of publicly-owned

airports and landing areas so as to assure coordination

between developments in the field of public works.

Uncontrolled establishment of privately-owned airports

and landing areas could seriously impair the existing

federal-state highway program. Federal-aid highway

funds may not be used for reconstruction or relocation of

any highway, the usefulness of which may be impaired

by the location or extension of an airport. This activity

also presents major problems for municipalities

particularly where the airport or operations therefrom

span more than one municipality.

The legislature, therefore, finds that in order to meet

the problems of local government in the establishment of

privately-owned airports and landing areas and to insure

coordination between developments in the field of public

works that certain criteria be met in the location of or

extension of a privately-owned airport or landing area.

2. Definitions. When used in this section:

15a

a. Airport means both an airport and landing area as

defined in section two hundred forty of this article.

b. Airport improvement means the _ extension,

alteration, addition to or realignment of the runways of

an existing privately-owned airport or the modification in

any way of the landing and take-off directions at such a

privately-owned airport.

3. Approval of privately-owned airports. No person

shall hereafter establish a privately-owned airport or

make an airport improvement to an existing privately-

owned airport except by authorization of the governing

body of the city, village or town in which such airport or

any part thereof is proposed to be established or

improved. The governing body of a city, village or town

shall not authorize the establishment of such an airport

or an airport improvement at a requested location unless

in accordance with the standards prescribed by the

commissioner of transportation. The local governing

body of a city, village or town shall, prior to granting

such authorization, request the commissioner of

transportation to determine whether or not the

establishment of such a _ privately-owned airport

improvement complies with his standards. In order to

make such a determination of compliance, the

commissioner of transportation must first make findings

of fact (1) that operations of such airport will not conflict

with or affect the safety of public buildings or facilities,

or operations on public highways or waterways; and (2)

that the volume, character and direction of traffic at

such airport will not constitute a menace to the safety of

operations at other airports in the vicinity. Approval for

the establishment of such an airport or airport

improvement may be subject to any reasonable

16a

conditions which the commissioner of transportation may

deem necessary to effectuate the purposes of this

section.

4. Hearings. In connection with his determination as

to whether the establishment of a privately-owned

airport or an airport improvement as defined in this

section complies with his standards the commissioner of

transportation may on his own motion or upon the

request of an affected or interested person or of the

governing body of the city, village or town requesting

such determination_of compliance, hold a hearing as

provided in subdivision five below.

5. Investigations, hearings. The commissioner of

transportation or any officer or employee of the

department of transportation designated by the

commissioner of transportation, shall have the power to

conduct investigations and inquiries and to hold hearings

concerning matters covered by this act and the rules,

regulations and orders of the commissioner of

transportation. Hearings shall be held upon such call or

notice as the commissioner of transportation or his duly

designated representative shall deem advisable. The

commissioner of transportation and each person

designated by him to conduct any investigation or

inquiry, or to hold any hearing shall have the power to

administer oaths and affirmations, certify to all official

acts, issue subpoenas, and order the attendance and

testimony of witnesses and the production of books,

papers and documents. In the case of the failure of any

person to comply with any subpoena or order issued

under the authority of this section, the commissioner of

transportation or his authorized representative may

invoke the aid of any court of general jurisdiction of this

state. The court may thereupon order such person to

17a

comply with the requirements of the subpoena or order

to give evidence touching the matter in question. Failure

to obey the order of the court may be punished by the

court as a contempt thereof.

6. Rules and regulations. The commissioner of

transportation is authorized to adopt such rules and

regulations as may be necessary for the proper

administration and enforcement of the provisions of this

section, but not inconsistent therewith, and to amend or

repeal any of such rules and regulations.

7. Delegation of powers. The commissioner of

transportation may, except as to rule-making powers, by

a writing filed in the office of the department designate

any officer or employee of the department of

transportation to carry out his duties under this section.

8. Nothing in this section shall be construed to deny

the governing body of any city, village or town the right

to perform any lawful regulatory activity relating to

privately-owned airports, which is not within the

purposes or scope of this section.

18a

APPENDIX “E”

City of Buffalo Ordinance Relating to Aircraft,

as Amended July 22, 1975

CH. VII REGULATORY ORDINANCES

ARTICLE I-A. AIRCRAFT

Sec. 1-A. Definitions.

The term “‘aircraft’’ as used in this article means any

contrivance now known or hereafter invented, used or

designed for navigation of or flight in the air, except a

parachute or other contrivance used primarily as safety

equipment.

Sec. 2. Use Regulated.

(a) No person, firm or corporation shall fly or permit

any aircraft to be flown over any part of the city at an

altitude of less than one thousand (1,000) feet above the

highest obstacle within a horizontal radius of two (2)

miles from the aircraft except in landing or on taking off

from the waters of Lake Erie, the Niagara River or the

Buffalo Harbor. Such landings, or takeoffs shall be made

at such minimum safe altitudes as will not endanger

persons or property on the surface or other aircraft.

Helicopters, however, may be flown at less than the

minimum prescribed herein and may land or take off at

places of landing within the city designated as such for

temporary or permanent use by the director of licenses

and permits with the approval of the commissioner of

police, provided that such operations are conducted

without hazard to persons or property on the surface or

to other aircraft and without undue interference with the

use of property on the surface and at an altitude which

will permit an emergency landing without undue hazard

nore | |

19a

to persons or property on the surface and provided,

further, that the commissioner of transportation in the

interest of safety may prescribe specific routes and

altitudes for such operations to which helicopters shall

conform, and provided further, that any person, firm or

corporation desiring to land a helicopter on any site

within the city, not permanently designated for said

purpose, shall submit said request, in writing, to the

director of licenses and permits at least one (1) day in

advance of the date of landing together with a certified

copy of an insurance policy covering said person, firm or

corporation against public liability and property damage

in connection with said operation, and in addition, the

said person, firm or corporation shall file with the

director of licenses and permits an insurance policy of

public liability and property damage in which policy the

city of Buffalo is the named insured. Said policies shall

be in the amounts of one hundred thousand dollars/three

hundred thousand dollars ($100,000.00/$300,000.00) for

public liability and two hundred thousand dollars

($200,000.00) for property damage. Certificates of said

insurance policy evidencing that the above required

insurance is in effect must also be furnished before the

director of licenses and permits can approve said request.

The above regulations shall not apply to helicopters

used directly by governmental agencies for governmental

purposes.

(b) It shall be unlawful for any person to operate an

aircraft either on the ground, on the water or in the air

within the limits of the city while under the influence of

intoxicating liquor, narcotics or other habit-forming

drugs, or to operate an aircraft in a careless or reckless

manner so as to endanger life or property of another.

Violation of the standards for safe operation of aircraft

20a

prescribed by federal or state statutes or regulations

shall be deemed careless or reckless operation of aircraft

within the meaning of this article.

from an aircraft in a parachute or any other device

within the limits of the city, except in the event of

imminent danger.

(d) It shall be unlawful for any person to operate an

aircraft within the limits of the city in any manner

prohibited by any provision of or contrary to the rules

and regulations of the Civil Aeronautics Administration

or the Civil Aeronautics Board or the laws of the state of

New York.

21a

APPENDIX “F”’

City of Buffalo Ordinance Relating to Aircraft,

as Amended September 15, 1987

CH. VII BUFFALO CODE

ARTICLE I-A. AIRCRAFT

Sec. 1-A. Definitions.

The term “aircraft’’ as used in this article means any

contrivance now known or hereafter invented, used or

designed for navigation of or flight in the air, except a

parachute or other contrivance used primarily as safety

equipment.

Sec. 2. Use Regulated.

(a) No person, firm or corporation shall fly or permit

any aircraft to be flown over any part of the city at an

altitude of less than one thousand (1,000) feet above the

highest obstacle within a horizontal radius of two (2)

miles from the aircraft except in landing or on taking off

from the waters of Lake Erie, the Niagara River or the

Buffalo Harbor. Such landings or takeoffs shall be made

at such minimum safe altitudes as will not endanger

persons or property on the surface or other aircraft.

Helicopters, however, may be flown at less than the

minimum prescribed herein and may land or take off at

places of landing within the city designated as such for

temporary or permanent use, as hereinafter prescribed;

provided, that such operations are conducted without

hazard to persons or property on the surface or to other

aircraft and without undue interference with the use of

property on the surface and at an altitude which will

permit an emergency landing without undue hazard to

persons or property on the surface; and provided,

- 22a

further, that the commissioner of public works, in the

interest of safety, may prescribe specific routes and

altitudes for such operations to which helicopters shall

conform; and provided further, that any person, firm or

corporation desiring to land a helicopter on any site

within the city, not permanently designated for said

purpose, and for no longer than two (2) consecutive days,

shall submit said request, in writing, to the director of

licenses at least one (1) day in advance of the date of

landing. Any person, firm or corporation which lands a

helicopter on any site in the city shall first submit to the

director of licenses a certified copy of an insurance policy

covering said person, firm or corporation against public

liability and property damage in connection with said

operation, and in addition, the person, firm or

corporation shall file with the director of licenses an

insurance policy of public liability and property damage

in which policy the city of Buffalo is the named insured.

Said policies shall be in the amounts of five million

dollars ($5,000,000.00) for public liability and one million

dollars ($1,000,000.00) for property damage. Certificates

of said insurance policy evidencing that the above

required insurance is in effect must also be furnished

before the director of licenses can approve said request.

The above regulations shall not apply to helicopters

used directly by governmental agencies for governmental

purposes.

(b) It shall be unlawful for any person to operate an

aircraft either on the ground, on the water or in the air

within the limits of the city while under the influence of

intoxicating liquor, narcotics or other habit-forming

drugs, or to operate an aircraft in a careless or reckless

manner so as to endanger life or property of another.

Violation of the standards for safe operation of aircraft

23a

prescribed by federal or state statutes or regulations

shall be deemed careless or reckless operation of aircraft

within the meaning of this article.

from an aircraft in a parachute or any other device

within the limits of the city, except in the event of

imminent danger.

(d) It shall be unlawful for any person to operate an

aircraft within the limits of the city in any manner

prohibited by any provision of or contrary to the rules

and regulations of the Civil Aeronautics Administration

or the Civil Aeronautics Board or the laws of the state of

New York. (Ord. of 9-29-87)

Sec. 3. Location of Privately-Owned Airports.

(a) No person shall hereafter establish a privately-

owned airport or make an improvement to an existing

privately-owned airport except by authorization of the

common council. The term “‘airport’’ shall mean and

include: any landing area used regularly for receiving or

discharging passengers or cargo; any landing area being

used for personal or training purposes; and any locality

either of land or water which is used or intended to be

used for the landing and take-off of aircraft, whether or

not facilities are provided for shelter, servicing or repair

of aircraft or for receiving or discharging passengers or

cargo. The term “airport improvement”’ shall include:

extension; alteration; modification; addition to or

realignment of the runaway(s) of an existing airport; or

the modification in any way of the landing or take-off

directions at such airport.

24a

(b) Any person seeking to establish a privately-owned

airport or make an improvement to an existing privately-

owned airport shall file an application therefor with the

common council which shall contain at least the following

information:

(1) Name and address of applicant.

(2) Detail of the type of aviation service

proposed.

(3) Number and type of aircraft expected to be

based at the airport.

(4) Whether an instrument approach procedure

will be requested for the airport.

(5) Maximum number of daily operations and the

anticipated total annual operations.

(6) Evidence that the airport is privately-owned

and that all owners of the real property have

consented to establishment or improvement of a

privately-owned airport.

(7) One (1) United States Geological Survey

topographical map, scale 1:24,000, of the area

proposed for the establishment or improvement of a

privately-owned airport.

(8) One (1) plan view map, scale 1:1,000, with the

position of the airport indicated thereon. The airport

runway(s), helipad or seaplane operational area must

be plotted thereon accurately. Such map must

include the direction and length of runways and

seaplane operational areas. Helipads must be

precisely located with all approach and departure

paths clearly indicated. The map must be

sufficiently large so as to include all approach and

lateral transition zones to the airport.

| | | |

25a

(9) A copy of the favorable airspace

determination issued by the Federal Aviation

Administration for the proposed _ airport

establishment or improvement.

common council shall forward same to the New York

State Commissioner of Transportation and adopt a

resolution requesting the commissioner to determine

whether the establishment or improvement complies with

the standards of the Department of Transportation

pursuant to section two hundred forty-nine of the New

York General Business Law. The application shall also be

referred to the commissioner of police, commissioner of

fire, commissioner of public works and director of

licenses for their review and determination whether the

establishment or improvement of the privately-owned

airport complies with applicable codes, ordinances and

public safety requirements.

(d) Upon receipt of the determination required by this

section, the common council shall hold a public hearing

on the proposal, upon due notice, at which all interested

parties shall be afforded an opportunity to present

evidence and testimony.

(e) The common council may grant permission to

establish or improve such privately-owned airport upon

consideration of all information before it; provided,

however, that no such permission shall be granted unless

the privately-owned airport is in accordance with the

standards prescribed by the New York Commissioner of

Transportation or unless such standards have been

waived.

26a

(f) No privately-owned airport shall hereafter be

established or improved if the proposed location is within

fifteen hundred (1,500) feet of property used for

residential purposes. However, this prohibition may be

waived upon presentation to the common council of a

validated petition requesting such waiver, signed by

sixty-five (65) per cent or more of those persons having

their residence within fifteen hundred (1,500) feet of the

proposed location or improvement. (Ord. of 9-29-87)

27a

APPENDIX “G”

28 U.S.C. §§1348, 1431

§1348. Airspace control and facilities

(a) Use of airspace

The Secretary of Transportation 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

airspace 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.

(b) Air navigation facilities; performance of functions by

Federal department or agency

The Secretary of Transportation is authorized, within

the limits of available appropriations made by the

Congress, (1) to acquire, establish, and improve air-

navigation facilities wherever necessary; (2) to operate

and maintain such air-navigation facilities; (3) to arrange

for publication of aeronautical maps and _ charts

necessary for the safe and efficient movement of aircraft

in air navigation utilizing the facilities and assistance of

existing agencies of the Government so far as

practicable; and (4) to provide necessary facilities and

personnel for the regulation and protection of air traffic.

The Secretary may, subject to such _ regulations,

supervision, and review as he may prescribe, from time

to time make such provision as he shall deem appropriate

authorizing the performance by a Federal department or

agency, with the consent of the department or agency, of

any function under this subsection.

28a

The Secretary of Transportation is further authorized

and directed to prescribe air traffic rules and regulations -

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.

(d) Applicability of administrative procedure provisions

In the exercise of the rulemaking authority under

subsections (a) and (c) of this section, the Secretary of

Transportation shall be subject to the provisions of

subchapter II of chapter 5 of Title 5, notwithstanding

any exception relating to military or naval functions in

section 553 of Title 5.

(e) Exemptions

The Secretary of Transportation from time to time

may grant exemptions from the requirements of any rule

or regulation prescribed under this subchapter if he finds

that such action would be in the public interest.

(f) Exception for military emergencies

When it is essential to the defense of the United States

because of a military emergency or urgent military

necessity, and when appropriate military authority so

determines, and when prior notice thereof is given to the

Secretary of Transportation, such military authority may

authorize deviation by military aircraft of the national

29a

defense forces of the United States from air traffic rules

issued pursuant to this subchapter. Such prior notice

shall be given to the Secretary of Transportation at the

earliest time practicable and, to the extent time and

circumstances permit, every reasonable effort shall be

made to consult fully with the Secretary of

Transportation and to arrange in advance for the

required deviation from the rules on a mutually

acceptable basis.

*-_ * *

$1431. Control and abatement of aircraft noise and

sonic boom

Definitions —

(a) For purposes of this section:

(1) The term “FAA” means Administrator of the

Federal Aviation Administration.

(2) The term “EPA” means the Administrator of

the Environmental Protection Agency.

Consultations; standards; rules and

regulations; aircraft certificates

(b)(1) In order to afford present and future relief and

protection to the public health and welfare from aircraft

noise and sonic boom, the FAA, after consultation with

the Secretary of Transportation and with EPA, shall

prescribe and amend standards for the measurement of

aircraft noise and sonic boom and shall prescribe and

arrend such regulations as the FAA may find necessary

to provide for the control and abatement of aircraft noise

and sonic boom, including the application of such

standards and regulations in the issuance, amendment,

modification, suspension, or revocation of any certificate

30a

authorized by this subchapter. No exemption with

respect to any standard or regulation under this section

may be granted under any provision of this chapter

unless the FAA shall have consulted with EPA before

such exemption is granted, except that if the FAA

determines that safety in air commerce or air

transportation requires that such an exemption be

granted before EPA can be consulted, the FAA shall

consult with EPA as soon as practicable after the

exemption is granted.

(2) The FAA shall not issue an original type

certificate under section 1423(a) of this title for any

aircraft for which substantial noise abatement can be

achieved by prescribing standards and regulations in

accordance with this section, unless he shall have

prescribed standards and regulations in accordance with

this section which apply to such aircraft and which

protect the public from aircraft noise and sonic boom,

consistent with the considerations listed in subsection (d)

of this section.

publication; hearing; review of prescribed regulations; report

and supplemental report

(1) Not earlier than the date of submission of the

report required by section 4906 of Title 42, EPA shall

submit to the FAA proposed regulations to provide such

control and abatement of aircraft noise and sonic boom

(including control and abatement through the exercise of

any of the FAA’s regulatory authority over air commerce

or transportation or over aircraft or airport operations)

as EPA determines is necessary to protect the public

health and welfare. The FAA shall consider such

proposed regulations submitted by EPA under this

paragraph and shall, within thirty days of the date of its

ee Ee eT | a

3la

submission to the FAA, publish the proposed regulations

in a notice of proposed rulemaking. Within sixty days

after such publication, the FAA shall commence a

hearing at which interested persons shall be afforded an

opportunity for oral (as well as written) presentations of

data, views, and arguments. Within ninety days after the

conclusion of such hearing and after consultation with

EPA, the FAA shall—

(A) in accordance with subsection (b) of this

section, prescribe regulations (i) substantially as

they were submitted by EPA, or (ii) which are a

modification of the proposed regulations submitted

by EPA, or

(B) publish in the Federal Register a notice that

it is not prescribing any regulation in response to

EPA’s submission of proposed regulations, together

with a detailed explanation providing reasons for the

decision not to prescribe such regulations and a

detailed analysis of and response to all

documentation or other information submitted by

the Environmental Protection Agency with such

proposed regulations.

*- * *

(2) If EPA has reason to believe that the FAA’s

action with respect to a regulation proposed by EPA

under paragraph (1)(A)(ii) or (1)(B) of this subsection does

not protect the public health and welfare from aircraft

noise or sonic boom, consistent with the considerations

listed in subsection (d) of this section, EPA shall consult

with the FAA and may request the FAA to review, and

report to EPA on, the advisability of prescribing the

regulation originally proposed by EPA. Any such

request shall be published in the Federal Register and

32a

shall include a detailed statement of the information on

which it is based. The FAA shall complete the review

requested and shall report to EPA within such time as

EPA specifies in the request, but such time specified

may not be less than ninety days from the date the

request was made. The FAA’s report shall be

accompanied by a detailed statement of the FAA’s

findings and the reasons for the FAA’s conclusions; shall

identify any statement filed pursuant to _ section

4332(2\(C) of Title 42 with respect to such action of the

FAA under paragraph (1) of this subsection; and shall

specify whether (and where) such statements are

available for public inspection. The FAA’s report shall be

published in the Federal Register, except in a case in

which EPA’s request proposed specific action to be

taken by the FAA, and the FAA’s report indicates such

action will be taken.

(3) If, in the case of a matter described in paragraph

(2) of this subsection with respect to which no statement

is required to be filed under such section 4332(2)(C) of

Title 42, the report of the FAA indicates that the

proposed regulation originally submitted by EPA should

not be made, then EPA may request the FAA to file a

supplemental report, which shall be published in the

Federal Register within such a period as EPA may

specify (but such time specified shall not be less than

ninety days from the date the request was made), and

which shall contain a comparison of (A) the

environmental effects (including those which cannot be

avoided) of the action actually taken by the FAA in

response to EPA’s proposed regulations, and (B) EPA’s

proposed regulations.

33a

Considerations determinative of standards,

> rules, and regulations

(d) In prescribing and amending standards and

regulations under this section, the FAA shall—

(1) consider relevant available data relating to

aircraft noise and sonic boom, including the results

of research, development, testing, and evaluation

activities conducted pursuant to this chapter and

chapter 23 of this title;

(2) consult with such Federal, State, and

interstate agencies as he deems appropriate;

(3) consider whether any proposed standard or

regulation is consistent with the highest degree of

safety in air commerce or air transportation in the

public interest;

(4) consider whether any proposed standard

or regulation is economically reasonable,

technologically practicable,.and appropriate for the

particular type of aircraft, aircraft engine, appliance,

or certificate to which it will apply; and

—— " "

(5) consider the extent to which such standard or

regulation will contribute to carrying out the

purposes of this section.

34a

Amendment, modification, suspension, or revocation of

certificate; notice and appeal rights

(e) In any action to amend, modify, suspend, or

revoke a certificate in which violation of aircraft noise or

sonic boom standards or regulations is at issue, the

certificate holder shall have the same notice and appeal

rights as are contained in section 1429 of this title, and

in any appeal to the National Transportation Safety

Board, the Board may amend, modify, or reverse the

order of the FAA if it finds that control or abatement of

aircraft noise or sonic boom and the public health and

welfare do not require the affirmation of such order, or

that such order is not consistent with safety in air

commerce or air transportation. 2

Pub.L. 85-726, Title VI, §611, as added Pub.L. 90-411,

$1, July 21, 1968, 82 Stat. 395, and amended Pub.L. 92-

574, §7(b), Oct. 27, 1972, 86 Stat. 1239.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.