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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1989
- **Citation:** 493 U.S. 993

## Text

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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

ye

. oe ats te Me

i.
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superseded by subsequent state legislation, and when the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,

u

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).

2

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).

3

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.

4

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’’).

5

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.

6

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.

4
,

7

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

8

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.

9

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

;

10

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.)

1]

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

| |

12

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

13

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.

14

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.

15

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.

16

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).

17
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

la

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}
v

CITY OF BUFFALO, NEW YORK,

Plaintiff,
vs.
BUCHOLTZ AVIATION, INC.,
2760 Sheridan Drive,
Buffalo, New York 14150,
Defendant.

Index No. H-91771.

rs}
Uv

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

2a

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

3a

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,

4a

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

5a

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

6a
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.

4)
-{)

CITY OF BUFFALO, .
Appellant-Respondent,
v.

BUCHOLTZ AVIATION, INC.,
Respondent-Appellant.

rs)

a

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:

7a

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)

8a

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

9a

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
is

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.

(c) It shall be unlawful for any person to jump or leap
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.

(c) It shall be unlawful for any person to jump or leap

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.

(c) Upon receipt of the completed application, the
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

(c) Air traffic rules

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.

(c) Submission of proposed regulations to FAA by EPA;
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0457%3A1. Public record. Not legal advice.