Petition for Writ of Certiorari — Schwartz v. Harrison

Supreme Court brief1990

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In The

Supreme Court of the United States

October Term, 1990

BERNARD A. SCHWARTZ, et a/., and THE BOARD OF

COUNTY COMMISSIONERS OF CARROLL COUNTY,

MARYLAND,

Petitioners,

VS.

ROBERT E. HARRISON, ef ai/.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE COURT OF APPEALS OF MARYLAND

JOHN T. WILLIS

Counsel of Record

WEINBERG AND GREEN

Attorneys for Petitioners

100 South Charles Street

Baltimore, Maryland 21201

(301) 332-8736

10881

tz * NJ (201) 257-6850*(800) 3 APPEAL *NY (212) 840-4640°MA (617) 542-1114

naEpanti. ime. DC (202) 783-7288*PA (215) 925-6500*USA (800) 5 APPEAL

e -

QUESTiON PRESENTED

Does the opinion of this Honorable Court in City of Burbank

v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973), interpreting

the Commerce Clause and Supremacy Clause of the Constitution

of the United States in relation to the Federal Aviation Act of

1958, as amended, and the Noise Control Act of 1972, as amended,

prohibit a local government, through its zoning board, in the

exercise of its police powers reserved under the Tenth Amendment

to the Constitution of the United States, from imposing conditions

relating to the frequency of flights and hours of operation in the

granting of a requesi for a conditional use to establish a small,

rural grass airstrip?

LIST OF PARTIES

Petitioners:

1. Bernard A. Schwartz, Catherine A. Rauschenburg, Robert

L. Harrison, David Pickett, Jennifer Leaf and others are adjoining,

confronting and nearby property owners of the airstrip.

2. The Board of County Commissioners of Carroll County

consists of the following persons elected by the registered voters

of Carroll County: John L. Armacost, Julia W. Gouge, J. Jeffrey

~ Griffith. The individual commissioners are not parties to this

nroceeding.

Respondents:

Robert E. Harrison is the owner of property on which the

airstrip is located.

Jerry Gaudet is the owner and operator of **Bay Soaring,”’

the user of the airstrip.

TABLE OF CONTENTS

Question Presented

List of Parties

Table of Contents

Table of Citations

Opinions Below

Statement of Jurisdiction

Constitutional and Statutory Provisions Involved

Statement of the Case

Reasons for Granting the Writ

III.

The Court of Appeals has decided an important

federal question by erroneously applying decision of

this Honorable Court.

The Court of Appeals’ holding of preemption

conflicts with decisions of the Court of Appeals for

the Fourth Circuit, federal district courts and

decisions of other state courts.

The Court of Appeals has decided an important

question of federal law in a way that interferes with

the legitimate functions of state and local governments

and means an unregulated relationship between the

use of land and the use of the skies.

—

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Contents

Page

CN ak wa weawu wanna aes ss wea cans eas bdésde aos Hee

TABLE OF CITATIONS

Cases Cited:

Air Transport Association v. Crotti, 389 F. Supp. 58 (N.D.

Se ESS e re kikdennarouea ents eb See eee en ees 15

PAPE EE ar are gS ag WU RE PO 16

British Airways Board v. Port Authority of New York, 558

PF Bek. os: Be eer epee 14, 15

Browning Ferris v. Baltimore County, 774 F.2d 77 (4th Cir.

RS ROB AA AR ele RARE PA ape ste 18

Building Inspector of Lancaster v. Sanderson, 372 Mass. 157,

kk Re BU gg, PRR AR A aie ee een: 15

Caleb Stowe Associates v. County of Albermarla, 724 F.2d

Seer ee ee oe ib eG gee sgh 18

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

8: eee 4, 5, 6, 7, 13, 14, 16, 17, 23

County Commissioners of Carroll County v. Gaudet, No.

1270, September Term 1986, Unreported (C.S.A. Md.

ee ee Ss 8. ob oh ok hase 49d ede oe pechbe ewes 4

DiPerri v. Federal Aviation Administration, 671 F.2d $4 (lst

Oe aaa ee 7,8

Contents

Page

Euclid v. Ambler Realty Company, 272 U.S. 365 (1926)

palevbns 0506664644 b0ee0R ORES Eee ee 18

Exxon, Inc. v. City of Frederick, 36 Md. App. 703, 375 A.2d

Pe Clete oo ke aesedecs epevann teen canes 2]

Faux-Burhans v. County Commissioners of Frederick

County, 674 F. Supp. 1172 (D. Md. 1987), aff’d., 859

F.2d 149 (4th Cir. 1988), cert. denied, __._—-U.S. ___s,

cop @. Ge. Bee Gee hace von neces eters 16, 17

Ford City Bank and Trust Company v. County of Kane, 114

Ill. App. 3d 940, 449 N.E. 2d 577, 70 Ill. Dec. 448 (1983)

re ivbvcedehede bhob deat kh adie tee 15

Fralin and Waldron, Inc. v. City of Martinsville, 493 F.2d

CBE Gl COE: BPP ois ovo oc ntdndaciene eee 18

Garden State Farms, Inc. v. Bay, 77 N.J. 439, 390 A.2d 1177

CFRFER ciondicecscsbaaseeaneiee nee 15, 20

Gateway Motels, Inc. v. Municipality of Monroeville, 106

Pa. Commw. 42, 525 A.2d 478 (1987) ........... ; -

Governor of Maryland v. Exxon Corporation, 279 Md. 410,

370 A.2d 1102 (1976), affirmed, 437 U.S. 117 (1978)

15-5 a daw we ee a ae eee ee ee 12

Greater Westchester Homeowners Association, et al., v. City

of Los Angeles, 160 Cal. Rptr. 733, 603 P.2d 1329 (1979)

_ » sat

Kruege Mtche 20 *d 8S 2N.W. 2a 73 )s

Louisiana Public Se , FCC, 476 U.S. 35

Miller v. Kiwanis Club of Loch Raven, Inc., 29 Md. Apy

Rocky Mountain Airways, Inc. v. County Pitkir 4

TT... 21° (I) ( olorado i). P.

Mb/} i

Santa Monica Airport Association v. City of Santa Monica

: - ; 50 t '

659 F.2d 100 (9th Cir. 198] ;

. vart ’ Liorr . . ‘ " Cer ery}

. “Wd | ria ‘ ; vi ~~. elt.

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A Sta 280 Mid. 48 i4 A. . 7

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Statutes Cited:

\ : _ and Airwa Imnr y . \ x 419 “

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-_ = - _ . 4

Aviation Safety and N Abatement Act of 1979, 49 U.S

- -

;

Vill

Contents

Pa ve

Federal Aviation Act of 1958, 49 U.S.C. § 1301, et seq.

Federal Aviation Act of 1958, 49 U.S.C. § 1432

Noise Control Act of 1972, 49 U.S.C. § 1431

28 U.S.C. § 1257(a)..

42 U.S.C. § 1983

United States Constitution Cited:

Article I, Section 8, Clause 3

Article VI, Clause 2

Amendment X

Other Authorities Cited:

14 C.F.R., Chapter |, Part 36

i4 C.F.R., Chapter |, Subchapter I, Part 150

S. Rep. No. 52, 96th Cong., 2nd Sess. (1980)

1980 U.S. Code Cong. & Admin. News, p. 89

——s

Anderson, American Law of Zoning, 3rd, p. 586 .

» Sd,

10,

§ Rathkopf, The Law of Planning and Zoning, § 60.01(2),

pp. 60-3—60-5

APPENDIX

Appendix A — Opinion of the Court of Appeals of Maryland

Filed April 19, 1990

Appendix B — Opinion of the Court of Special Appeals of

Marvland

Appendix ( — Opinion and ( Irder oT (ne ( ircult ( ourt for

Carroll County

Relevant Statutory Pro yr

Federal Aviat Act of 1958. 49 | ( Ol et

Federal Aviation Act S68 49 US. 432

Noise Control Act of 1972, 49 U.S.C. § 143]

Aviation Safety and Noise Abatement Act of 1979. 40

[).§.¢ S 210]

Airport and Airway Improvement Act of 1982. 49

| ~ ( . 901

vara, |

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No.

In The

Supreme Court of the United States

October Term, 1990

BERNARD A. SCHWARTZ, et a/., and THE BOARD OF

COUNTY COMMISSIONERS OF CARROLL COUNTY,

MARYLAND,

Petitioners,

VS.

ROBERT E. HARRISON, et ai..,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE COURT

OF APPEALS OF MARYLAND

Petitioners, Bernard A. Schwartz, Catherine A.

Rauschenberg, Robert L. Harrison, David Pickett, Jennifer Leaf

and the Board of County Commissioners of Carroll County

respectfully pray that a writ of certiorari issue to review the

judgment and opinion of the Court of Appeals for the State of

Maryland entered in this proceeding on Apri! 19, 1990.

OPINIONS BELOW

The opinion of the Court of Appeals of Maryland (Appendix

A, la-21la) is published as Harrison, et al. v. Schwartz, et al.,

319 Md. 360, 572 A.2d 528 (1990). The opinion of the Court

of Special Appeals of Maryland (Appendix B, 22a-30a) is

unpublished. The decision of the Circuit Court for Carroll County,

Maryland (Appendix C, 3la-37a) is unpublished.

STATEMENT OF JURISDICTION

The Court of Appeals of Maryland entered its opinion on

April 19, 1990 (la-21la). This Honorable Court has jurisdiction

under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

United States Constitution, Article I, Section 8, Clause 3

(Commerce Clause):

The Congress shall have Power ... To

regulate Commerce with foreign Nations, and

among the several States and with the Indian

Ti, 68s

United States Constitution, Article VI, Clause 2 (Supremacy

Clause):

This Constitution, and the Laws of the United

States which shall be made in Pursuance thereof;

and all Treaties made, or which shall be made,

under the Authority of the United States, shall be

the supreme Law of the Land; and the Judges in

every State shall be bound thereby; any Thing in

the Constitution or Laws of any State to the

Contrary notwithstanding.

United States Constitution, Amendment X (Reserved Powers):

The powers not delegated to the United States

by the Constitution, nor prohibited by it to the

States, are reserved to the States respectively, or

to the people.

Federal Aviation Act of 1958, 49 U.S.C. § 1301, ef seq.,

and § 1432 (Appendix D, 38a-53a);

Noise Control Act of 1972, 49 U.S.C. § 1431 (Appendix D,

$3a-59a);

Aviation Safety and Noise Abatement Act of 1979, 49 U.S.C.

§ 2101, et seq. (Appendix D, 58a);

Airport and Airway Improvement Act of 1982, 49 U.S.C.

§ 2201, et seq. (Appendix D, 60a-67a).

STATEMENT OF THE CASE

On March 16, 1983, Robert E. Harrison and Jerry Gaudet

(hereinafter sometimes called ‘‘Bay Soaring’’) filed an application

for hearing with the Carroll County Board of Zoning Appeals

(hereinafter called ‘‘Board’’) for a conditional use permit to

conform with a prior (December 20, 1982) decision of the Board

(Case No. 1879). The Board of Zoning Appeals conducted hearings

in Case 1988 on February 21-24, 1984, and March 15, 1984, and

granted a new conditional use permit subject to eight (8) conditions

in a decision dated May 11, 1984. These conditions included the

following:

2. Aircraft take-offs shall be separated by

intervals of at least 15 minutes in order to minimize

the adverse effects of aircraft engine noise upon

the residents of the surrounding area and to reduce

the intensification of the use of the property in

what is otherwise a primarily rural residential area.

3. Aircraft take-offs shall not be made before

9:00 a.m. or later than 7:00 p.m. on any day.

7. The Applicant will design take-off and

landing patterns in such a way that they will

minimize the adverse effect upon neighboring

residents. In addition, the Applicant shall require

people taking off and landing from the airfield

to be familiar with the landing and take-off

patterns and to use them.

On June 4, 1984, the appellants, Robert E. Harrison and

Jerry Gaudet, filed a petition for appeal from this decision in

the Circuit Court for Carroll County, Maryland, designated therein

as Law No. 26499. After a related appellate decision (County

Commissioners of Carroll County v. Gaudet, No. 1270, September;

Term 1986, Unreported (C.S.A. Md. June 23, 1987)) remanded

the case, the Circuit Court for Carroll County issued an opinion

and order, dated August 23, 1988, which found invalid the above-

noted Conditions 2, 3 and 7 imposed by the Board in Case 1988

based upon the decision of this Honorable Court in City of

Burbank v. Lockheed Air Terminals, Inc., 411 U.S. 624 (1973).

It was at this stage of the proceedings below that the issue of

federal preemption was first raised. This decision was appealed

to the Court of Special Appeals of Maryland by Bernard A.

Schwartz (and other adjoining, confronting and nearby neighbors)

and the Board of County Commissioners of Carroll County.

€)

The Court of Special Appeals in Schwartz, et al, v. Harrison,

et al., No. 1425, September Term 1988 Unreported (C.S.A. Md.,

May 4, 1989) reversed the Circuit Court for Carroll County in

holding that Conditions 2 and 3 imposed by the Board were not

preempted by federal law and that the facts and circumstances

Surrounding the Woodbine airstrip were significantly

distinguishable from those related to the Hollywood-Burbank

commercial airport (22a-30a).

The Court of Appeals of Maryland granted a petition for

writ of certiorari filed by the airstrip owner and operator, Bay

Soaring, and heard argument on January 4, 1990. In an opinion,

dated April 19, 1990, the Court of Appeals of Maryland held

that Conditions 2 and 3 imposed by the Board were invalid because

‘“[T]hey trespass upon a field that has been impliedly preempted

by federal law.’’ Harrison, et al. v. Schwartz, et al., 319 Md.

366, 362, 572 A.2d 528, 529 (1990).

REASONS FOR GRANTING THE WRIT

THE COURT OF APPEALS HAS DECIDED AN

IMPORTANT FEDERAL QUESTION BY ERRONEOUSLY

APPLYING DECISIONS OF THIS HONORABLE COURT.

In 1973 this Honorable Court rendered a divided decision

(S to 4) in City of Burbank v. Lockheed Air Terminal, Inc., 411

U.S. 624 (1973), declaring invalid a municipal ordinance passed

by the City of Burbank, California, which prohibited the take-

off and landing of jet aircraft between the hours of 11:00 p.m.

and 7:00 a.m. The Court of Appeals of Maryland relied upon

this decision in holding that Condition 2 (relating to intervals

between flights) and Condition 3 (relating to hours of operation)

imposed by the Carroll County Board of Zoning Appeals in

granting a request to establish a rural, grass airstrip were impliedly

preempted by federal law. It is respectfully submitted that the

reliance of the Court of Appeals of Maryland on the Burbank

case is misplaced and inappropriate.

There are enormous factual differences between the

Hollywood-Burbank commercial jet airport and the rural

Woodbine grass airstrip. In Burbank, the airport in question was

a fully functioning public commercial facility handling commercial

air carriers with cargo, passengers and related services engaged

in interstate commerce. In the instant case, the airstrip is a grass

field from which one or two privately owned planes tow gliders

into the air. The aircraft in Burbank included large jets against

which the stricken municipal ordinance was directed whereas only

privately owned single-engine propeller planes and gliders use the

grass landing area at Woodbine, Maryland. The affected flights

in Burbank included interstate commercial traffic whereas the

gliders at the Woodbine site are intended to be towed from and

return for landing to a single grass landing area in Carroll County,

Maryland. The Hollywood-Burbank public commercial airport

services an urban area whereas the Woodbine airstrip is located

in a predominantly rural area with ground access from a narrow

dirt road and has no air traffic relationship with any other airstrip

or airport. Although the Court of Appeals of Maryland correctly

observed, ‘‘Obviously, the small Woodbine airport is very different

from Hollywood-Burbank,’’ the court nevertheless believed that

the factual disparities were irrelevant in stating, ‘‘The Supreme

Court did not make an exception for small airports that do not

involve inter-airport commercial cargo or passenger flights, or

for activities not expressly governed by federal statute or

regulation.’’ Harrison v. Schwartz at 368-369, 528 A.2d at 532.

This expansive interpretation of City of Burbank was not

contemplated or intended by this Honorable Court. Indeed it is

difficult to comprehend this Honorable Court finding preemption

if the Woodbine airstrip facts been before the court in 1973 rather

than Burbank.

In addition, the relevant federal statutory and regulatory

framework for the Hollywood-Burbank commercial jet airport

is wholly different from that applicable to the Woodbine grass

airstrip. The Federal Aviation Administration (hereinafter

sometimes called ‘‘FAA’’) had the authority and responsibility

to issue an airport operating certificate for the Hollywood-Burbank

commercial jet airport (see Federal Aviation Act, 49 U.S.C.

§ 1432) but the FAA has no authority or responsibility to issue

any license for the operation of the Woodbine grass strip. At the

Hollywood-Burbank airport, the FAA and other federal agencies

have direct control and responsibility over the scheduling of flights

and flight operations whereas at Woodbine only the operators

of the airstrip exercise any real, practical operational control over

take-offs, flight paths, landings and who may utilize the airstrip.

respect to aviation noise, the Noise Control Act of 1972 was found

applicable to (and has by further legislative action been made

clearly binding on) the Hollywood-Burbank airport. However,

federal airport noise legislation and regulations were not drafted

in consideration of, or in reference to, rural airstrips like the

Woodbine grass airstrip. (See Federal Aviation Act, 49 U.S.C.

§ 1431 and §§ 2101, ef seq.)

Subsequent to the decision in City of Burbank, Congress has

further clarified its intent with respect to the regulation of aviation

noise by the passage of the ‘‘Aviation Safety and Noise Abatement

Act of 1979”’’ (49 U.S.C. §§ 2101, ef seq.) and the ‘‘Airport and

Airway Improvement Act of 1982’’ (49 U.S.C. §§ 2201, et seq.).

These more recent federal statutes plainly manifest that the

Woodbine grass strip is not expressly or implicitly regulated by

the Federal Aviation Administration with respect to noise. The

FAA itself has not sought complete authority over all aviation

noise as noted by the First Circuit Court of Appeals in DiPerri

v. Federal Aviation Administration, 671 F.2d 54, 58 (1st Cir. 1982):

The FAA itself has steadfastly maintained that

the local proprietor has primary responsibility for

the regulation of airport noise. In a 1976 Noise

Abatement Policy Statement, the FAA and the

Department of Transportation stated that

‘* Airport proprietors are primarily responsible

for planning and implementing action designed to

reduce the effect of noise on residents of the

surrounding area. Such actions include optimal site

location, improvements in airport design, noise

abatement ground procedures, land acquisition,

and restrictions On airport use that do not unjustly

discriminate against any user, impede the federal

interest in safety and management of the air

navigation system, or unreasonably interfere with

interstate or foreign commerce.

We have been urged to undertake — and have

considered carefully and rejected — full and

complete federal preemption of the field of aviation

noise abatement. In our judgment the control and

reduction of airport noise must remain a shared

responsibility among airport proprietors, users, and

governments.’’

FAA and DOT Noise Abatement Policy

Statement at 5, 18 (Nov. 18, 1976), quoted in

Greater Westchester v. City of Los Angeles, 160

Cal. Rptr. at 743, 603 P.2d at 1340.

In the Senate Report on the 1979 Act, the conflict between

citizen opposition to aircraft noise and the development and

expansion of airports is discussed in detail. S. Rep. No. 52, 96th

Cong., 2nd Sess. (1980). It is noteworthy that in a section entitled

‘*Land Use Compatibility’’ tne Report states:

State and local governments are directly and

uniquely responsible for insuring that land use

planning, zoning, and land development activities

in areas surrounding airports are compatible with

present and projected aircraft noise exposure in

the area.

Control of compatible land use around

airports is a key tool in limiting the number of

citizens exposed to unacceptable noise impacts, and

should remain exclusively in the control of State

and local governments. Occasionally, it is a power

enjoyed by individual airport operators; some

operators are municipal governments that can

impose appropriate land use controls through

zoning and other authority. But even where

municipal governments themselves are operators,

the noise impacts of their airports often occur in

areas Outside their jurisdiction. 1980 U.S. Code

Cong. & Admin. News, p. 89, 91.

There is nothing in the 1979 Act which expressly prohibits

or limits a state and local government from exercising its zoning

powers by taking into consideration the impact of aircraft noise.

The Federal Aviation Act, as amended, does not create a scheme

of regulation which reaches facilities such as the Woodbine grass

strip. By its own definitions (49 U.S.C. § 2101(1)) the 1979 Act

limits the FAA ‘‘airport noise compatibility planning”’ to ‘‘public

use airports’’ which are defined in 49 U.S.C. § 2202(a}(18) as

follows:

‘*Public use airport’’ means:

(A) any public airport

(B) any privately owned reliever airport; and

determined by the Secretary to emplane annually

2,500 or more passengers and receive scheduled

passenger service of aircraft, which is used or to

be used for public services.

This limitation of the FAA over ‘Airport Noise Compatibility

Planning’’ is restated in the applicable regulations (14 C.F.R.,

§$ 180.3, Subpart A, Part 150, Subchapter I-Airports):

This part applies to the airport noise

compatibility planning activities of the operators

of *‘public use airports”’ including heliports, as that

term is used in section 101(1) of the ASNA Act

as amended (49 U.S.C. 2101) and as defined in

Section $03(17) of the Airport and Airway

Improvement Act of 1982 (49 U.S.C. 2202).

The Woodbine gliderport meets none of the federal criteria

for a “‘public use airport.”’ /f is not ‘‘under the control of a public

agency, the landing area of which is publicly owned (49 U.S.C.

§$ 2202(aX17)); if is not *‘an airport designated by the Secretary .

as having the function of relieving congestion at a commercial

service airport and providing more general aviation access to the

overall community.’* (49 U.S.C. § 2202(a)(10)); and if is not an

airport *‘determined by the Secretary to emplane annually 2,500

Or more passengers and receive scheduled passenger service of

aircraft’’ (49 U.S.C. § 2202(a10) and (18)). The Woodbine

gliderport is simply a small, rural, grass airstrip which is not

regulated to any significant degree by the Federal Aviation

Administration.

The lack of regulation over the Woodbine gliderport by the

FAA was acknowledged by Mr. Jerry Gaudet, the principal owner

and operator of Bay Soaring, during cross examination before

the Carroll County Board of Zoning Appeals on February 22,

1984:

[Mr. Gaudet}

Okay. The FAA doesn’t really inspect the

airport. The FAA grants air space conditions. That

if the air space is available, it’s not going to conflict

with other traffic, or what have you, they will say,

okay, this is a good area for an airport, or it’s

not. They don’t really inspect the runway itself.

Q Does the FAA set standards of any kind

for airports and runways?

A No, they do not... . [E.48].

The judicial doctrine of preemption does not mean that

anytime the federal government enters an area of regulation that

state and local governments lose their respective rights to protect

the general welfare of their citizens. This Honorable Court has

considerec the relationship and boundary lines between federal

and state regulations on numerous occasions. Cases in which this

Honorable Court has found preemption lacking notwithstanding

federal entry into a field of commerce include Wardair Canada,

Inc. v. Florida Department of Revenue, 477 U.S. 1 (1986) (state

sales tax on aviation fuel upheld); Louisiana Public Service

Commission v. FCC, 476 U.S. 355 (1986) (state formulas for

depreciation practices and charges not subject to FCC regulation);

Hillsborough County v. Automated Medical Laboratories, Inc.,

471 U.S. 707 (1985) (county ordinance imposing requirements on

blood plasma not preempted by federal regulations); and, Si/kwood

v. Kerr-McGee Corporation, 464 U.S. 238 (1984) (state statute

authorizing punitive damages arising from operation of a nuclear

facility not preempted by federal laws); Governor of Marviand

v. Exxon Corporation, 279 Md. 410, 370 A.2d 1102 (1976),

affirmed, 437 U.S. 117 (1978) (state statute requiring divestiture

of service stations not preempted by federal laws).

In analyzing the applicability of preemption in the instant

case merely because the federal government has asserted general

jurisdiction over airspace and aeronautical matters does not mean

that state and local governments can never take action which

impact on these matters. See e.g., Wardair Canada, Inc. v. Florida,

supra; Ward v. State, 280 Md. 485, 495-96, 374 A.2d 1118, 1123-24

(1977), cert. denied, 434 U.S. 1011; Rocky Mountain Airways,

Inc. v. County of Pitkin, 674 F. Supp. 312 (D. Colorado, 1987).

The Federal Aviation Act, as amended, and the Noise Control

Act, as amended, do not contain express provisions prohibiting

a local zoning authority from imposing conditions in granting

an application for land use involving aircraft. The legislative

history of the relevant federal statutes and the federai agency

regulations evidence a respect for the role of state and local

governments in airport regulation which belie a dominant federal

interest or scheme of pervasive federal regulation. While pilots

and flight instructors are licensed by the FAA, the standards for

aircraft engines are set by the FAA and utilization of airspace

is subject to FAA regulation, the FAA, with respect to the

Woodbine grass strip, does not control take-off and landings,

does not issue an operating license or certificate, does not inspect

the facilities and does not require ‘‘airport noise compatibility

planning.”’

In summary, there is no evidence of a comprehensive scheme

of federal regulation over the rural, grass airstrip proposed for

Woodbine, Maryland which prohibits the Carroll County Board

of Zoning Appeals from exercising its discretion in the discharge

of its legitimate functions. The Court of Appeals of Maryland

has broadened the scope of the Burbank decision and has

erroneously concluded that the federal government has ‘‘occupied

the field’ when in fact rural, grass fields such as the proposed

Woodbine airstrip are not covered by the responsible federal

agencies and are not within the ambit of federal statutes.

THE COURT OF APPEALS* HOLDING OF

PREEMPTION CONFLICTS WITH DECISIONS OF THE

COURT OF APPEALS FOR THE FOURTH CIRCUIT,

FEDERAL DISTRICT COURTS AND DECISIONS OF OTHER

STATE COURTS.

The decision of this Honorable Court in Burbank v. Lockheed

did not quiet the storm or resolve the tension between the

environmental and nuisance concerns of adjoining property owners

and the aviation industry. There has been a multitude of litigation

which has considered various aspects of the impact of aviation

on adjacent property owners.

In a significant footnote to the majority opinion, Justice

Douglas stated, in consideration of the legislative history of the

Noise Control Act of 1972, *‘We do not consider here what limits,

if any, apply to a municipality as a proprietor.’’ Supra at 635,

n. 14. After a thorough review of the legislative history (now Chief)

Justice Rehnquist observed in the four vote minority opinion of

Burbank:

A local governing body that owns and

Operates an airport is certainly not, by the Court's

Opinion, prohibited from permanently closing

down its facilities. A local governing body could

likewise use its traditional police power to prevent

the establishment of a new airport or the expansion

of an existing one within its territorial jurisdiction

by declining to grant the necessary zoning for such

a facility. Even though the local government’s

decision in each case were motivated entirely

because of the noise associated with airports, I do

not read the Court’s opinion as indicating that such

action would be prohibited by the Supremacy

Clause merely because the Federal Government has

undertaken the responsibility for some aspects of

aircraft noise control.

Supra at 653.

Seizing upon this ‘‘proprietor’’ distinction the United States

District Court for the Northern District of California upheld the

City of Hayward’s ordinance enacted two years after the Burbank

decision which prohibited ‘‘all aircrafts which exceeded a noise

level of 75 dBA from landing or taking off from the Hayward

Air Terminal between the hours of 11:00 p.im. and 7:00 a.m.”’

National Aviation v. City of Hayward, 418 F. Supp. 417, 418

(N.D. Cal. 1976). The Ninth Circuit of the United States Court

of Appeals also focused on ‘‘footnote 14’’ in protecting from

preemption attack night curfews, certain low aircraft approaches

on weekends, helicopter flight training and a maximum single

event noise exposure level of 100 decibels enacted for a city owned

and operated airport. Santa Monica Airport Association v. City

of Santa Monica, 659 F.2d 100 (9th Cir. 1981). The Second Circuit

of the United States Court of Appeals upheld a temporary ban

on the landing of the supersonic transport Concorde in a case

where the federal government conceded it had not preempted the

entire field of airport noise regulation. British Airways Board v.

Port Authority of New York, 558 F.2d 75 (2nd Cir. 1977). See

also, Air Transport Association v. Crotti, 389 F. Supp. 58 (N.D.

Cal. 1975).

In the area of land use, courts throughout the country have

sustained the power of state and local governments to prohibit

or condition the use of land for aviation use. The Supreme Judicial

Court of Massachusetts has held that the length of a runway can

be restricted. Building Inspector of Lancaster v. Sanderson, 372

Mass. 157, 360 N.E.2d 1051 (1977). The Supreme Court of New

Jersey upheld the right of the Borough of Hawthorne to amend

its zoning ordinance forbidding the taking off or landing of

airplanes or helicopters. Garden State Farm, Inc. v. Bay, 77 N.J.

439, 390 A.2d 1177 (1978). The Supreme Court of Alabama

sustained a trial court’s injunction prohibiting the operation of

a helicopter which generated excessive, loud and annoying noise

in Wood v. City of Huntsville, 384 So. 2d 1081 (Ala. 1980).

The Second District Appellate Court of Illinois has held that an

increase in the number of planes, an intensification of use, can

be restricted. Ford City Bank and Trust Company v. County of

Kane, 114 Ill. App. 3d 940, 449 N.E. 2d 577, 70 Ill. Dec. 448

(1983). The Commonwealth Court of Pennsylvania rejected a

federal preemption argument in upholding conditions, including

fire safety, placed on a conditional use permit for a private heliport

in Gateway Moteis, Inc. v. Municipality of Monroeville, 106 Pa.

Commw. 42, 525 A.2d 478 (1987). The Second District Appellate

Court of Illinois concluded ‘‘that the Federal Aviation Act does

not preempt local power to decide whether to allow new private

RLAs (Restricted Landing Areas) on the basis of potential noise

problems.”’ Wright v. County of Winnebago, 73 Ill. App. 3d 337,

391 N.E. 2d 772 (1979). The United States District Court for the

District of Maryland declined to apply the federal preemption

doctrine to void a Frederick County ordinance which placed

restrictions on the operation of a private rural airport. Faux-

Burhans v. County Commissioners of Broderick County, 674 F.

Supp. 1172 (D. Md. 1987), affirmed, 859 F.2d 149 (4th Cir. 1988),

cert. denied, ____. U.S. ___, 109 S. Ct. 869 (1989).

The Federal Aviation Act and Burbank also did not insulate

airport owners and operators from the legal consequences of

offensive noise. The Supreme Court of California held that a

private cause of action of nuisance for injuries sustained as a result

of noise from.a city-owned airport was not preempted by federal

law in Greater Westchester Home Owners Association, et al. v.

City of Los Angeles, 160 Cal. Rptr. 733, 603 P.2d 1329 (1979).

See also, Bieneman v. City of Chicago, 864 F.2d 463 (7th Cir.

1988). This potential liability was extended to a private airport

proprietor in Krueger v. Mitchell, 112 Wis. 2d 88, 332 N.W. 2d

733 (1983).

The United States District Court for Maryland recently dealt

with the necessity for the balancing and sharing of responsibilities

between levels of government when it shielded from ‘‘preemption

attack’’ an ordinance passed by the County Commissioners of

Frederick County, Maryland, which regulated private airports by

requiring private owners to file an application for a special

exception and meet certain requirements which included for each

airstrip to two, restricting the type of aircraft, providing for clear

zones, requiring a mimmum property size and specifying setbacks

from property lines. As noted by Judge Smalkin in Faux-Burhans

v. County Commissioners of Frederick County, 674 F. Supp. 1172,

1174 (D. Md. 1987):

In the instant case, plaintiff can point to no federal

statute or regulation explicitly or implicitly

preempting the broad areas of regulation, of the

size, scope, and manner of operations at a private

airport such as his. .

And, just as certainly, no federal law gives a citizen

the right to operate an airport free of local zoning

control.

This decision was affirmed by the United States Court of Appeals

for the Fourth Circuit in an unpublished per curiam opinion dated

September 9, 1988 (Amos D. Faux-Burhans v. Board of County

Commissioners of Frederick County, No. 88-3929, unreported

(4th Cir. 1988)) and a writ of certioriari was denied by this

Honorable Court on January 23, 1989.

The decision of the Court of Appeals of Maryland is in

conflict with the Faux-Burhans decision of the United States

District Court for the District of Maryland and the affirmance

by the United States Court of Appeals for the Fourth Circuit.

This conflict is even more direct insofar as the respective

jurisdictions in the two cases are adjacent counties in North Central

Maryland. The Court of Appeals endeavored to distinguish Faux-

Burhans by asserting the factors involved therein did not seek

to control noise directly but there is more similarity than difference

between these cases. It is submitted this Honorable Court should

further define the proper parameters and explain its decision in

City of Burbank or litigation in Maryland’s subdivisions will

continue with divided precedent. In addition, insofar as Faux-

Burhans conflicts with the decision of the United States Court

of Appeals for the Sixth Circuit in United States v. City of Blue

Ash, 487 F. Supp. 135 (S.D. Ohio, W.D. 1978), aff’d mem., 621

F.2d 227 (6th Cir. 1980), relied upon by the Court of Appeals

of Maryland, this conflict should be resolved.

THE COURT OF APPEALS HAS DECIDED AN

IMPORTANT QUESTION OF FEDERAL LAW IN A WAY

THAT INTERFERES WITH THE LEGITIMATE FUNCTIONS

OF STATE AND LOCAL GOVERNMENTS AND MEANS AN

UNREGULATED RELATIONSHIP BETWEEN THE USE OF

LAND AND THE USE OF THE SKIES.

There are fifty states and thousands of counties, municipalities

and other local governmental units and agencies which have zoning

and land use authority and functions. The logical extension of

the decision of the Court of Appeals of Maryland in the instant

case, is to leave those governmental entities (including 23 counties

and i55 municipalities in Maryland) virtually powerless to control

airport Operations in any manner, regardless of airport size,

character, relation to adjoining property or lack of any practical,

effective regulation. There are literally thousands of small, mostly

rural airstrips which would be wholly unregulated if the reasoning

of the Court of Appeals is sanctioned and left undisturbed.

This Honorable Court and lower federal courts have long

recognized the deference to be given the states and local

governments in land use cases and have traditionally not interfered

with state courts in cases involving land use policy. Euclid v.

Ambler Realty Company, 272 U.S. 365 (1926); Kent Island Joint

Venture v. Smith, 452 F. Supp. 455 (D. Md. 1978); Caleb Stowe

Associates v. County of Albemarla, 724 F.2d 1079 (4th Cir. 1984);

Browning Ferris v. Baltimore County, 774 F.2d 77 (4th Cir. 1985);

Fralin and Waldron, Inc. v. City of Martinsville, 493 F.2d 481

(4th Cir. 1974). The deference of the federal courts in land use

cases is a recognition of the balance which must be struck in this

particularly sensitive and local field. In Village of Belle Terre v.

Boraas, 416 U.S. 1, 994 S. Ct. 1536, 1541 (1974) the importance

of local land use planning and zoning control was noted:

A quiet place where yards are wide, people few,

and motor vehicles restricted are legitimate

guidelines in a land-use project addressed to family

needs.* * * It is ample to lay out zones where

family values, youth values, and the blessing of

quiet seclusion and clean air make the area a

Sanctuary for people.

The dissenting opinion of Justice Marshall also recognized

the importance of local land use control:

I am in full agreement with the majority that

zoning is a complex and important function of the

State. It may indeed be the most essential function

performed by local government, for it is one of

the primary means by which we protect that

sometimes difficult to define concept of quality

of life. I, therefore, continue to adhere to the

principle of Village of Euclid v. Ambler Realty

Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303

(1926), that deference should be given to

governmental judgments concerning proper land-

use allocation.

416 U.S. at 13, 94S. Ct. at 1543.

This Honorable Court has recently reaffirmed the reasoning

which must be applied when the constitutional balance between

the states and the federal governments is tested. Although involving

the application of 42 U.S.C. § 1983 to the states and to state

officials, the language of Will v. Michigan Dept. of State Police,

____ U.S. ___, 109 S. Ct. 2304, 2308-9 (1989), is instructive:

In traditionally sensitive areas, such as legislation

affecting the federal balance, the requirement of

clear statement assures that the legislature has in

fact faced, and intended to bring into issue, the

critical matters involved in the judicial decision

The Federal Aviation Act, as amended, has never contained °

a clear statement of intent to regulate all aspects of rural grass

airstrips. The Noise Control Act of 1972, as amended, likewise

does not contain an express intention to regulate airstrips like

the Woodbine gliderport. There is a significant absence of federal

regulation for these kinds of airstrips which therefore requires

a proper balancing of federal, state and local authority. The

reasoning of the Supreme Court of New Jersey in finding no

preemption in a determination of heliport locations is relevant

to the proper balancing involved, Garden State Farms, Inc. v.

Bay, supra, 390 A.2d at 1180-81:

The case at hand does not present a situation

where preemption may be predicated upon a felt

need for a monolithic system of regulation. While

in some important aspects uniform regulation may

be required, such as in the control and supervision

of air space, cf. Burbank v. Lockheed Air

Terminal, Inc., 411 U.S. 624, 626-628, 93 S.Ct.

1854, 1856-1857, 36 L.Ed.2d 547, 550 (1973), that

obvious need does not reach down to the level of

the location of small, relatively isolated, privately

owned helistops or heliports. Cf. Cooley v. Bd. e

of Wardens of the Port of Phila., supra, 53 U.S.

(12 How.) at 320, 13 L.Ed. at 1005.

Had the Federal Aviation Administration adopted regulations

which could conceivably be said to occupy the field upon which

the Carroll County Zoning Board has tread, it is certain that this

case would not have arisen. The Board clearly focused on its limits

of authority when it recognized that it was preempted from

regulating flight safety. But the issue of preemption of aircraft

noise was never presented to the Board despite the issue being

a major component of the case before the Board and a factor

upon which the Board’s decision was required to be based. In

fact, the FAA has done precious little to occupy, or much less

effect, the field of noise regulation at airstrips similar to the

Woodbine gliderport. The FAA does regulate, aircraft noise from

the standpoint of aircraft engines (14 C.F.R. Part 36), but does

not regulate the noise of a rural airstrip as it impacts on adjoining

or neighboring property owners. There is regulation of specific

aircraft engine noise but not the compounded effect of frequent

aircraft for take-offs, landings and pattern approaches at a rural,

grass airstrip. The FAA regulates this aspect of airport noise by

imposing upon airport operators specific requirements for

mapping, identification, and compatibility programs (14 C.F.R.

Part 150), but, contrary to the opinion of the Court of Appeals

of Maryland, Part 150 does not apply to airports like the one

proposed off a dirt road in rural Woodbine, Maryland because

it is not a ‘‘public use airport.’’ (14 C.F.R. § 150E). Interestingly

even for ‘‘public use’’ airports the FAA has recognized the role

local government should play in land use compatibility analysis

for those airports subject to Part 150 by recognizing that ‘‘the’’

responsibility for determining the acceptable and permissible land

uses and the relationship between specific properties and specific

noise contours rests with the local authorities.’’ (14 C.F.R.

Appendix A to Part 150, Table 1).

The authority of a local zoning body to impose conditions

on the granting of a land use request is well established in Maryland

and throughout the United States. See Exxon Inc. v. City of

Frederick, 36 Md. App. 703, 375 A.2d 34 (1978); Miller v. Kiwanis

Club of Loch Raven, Inc., 29 Md. App. 285, 347 A.2d 572 (1975);

Skipjack Cove Marina, Inc. v. Board of County Commissioners

of Cecil County, 264 Md. 381, 287 A.2d 49 (1972). The distinction

between land use control and a police power noise regulation lias

been observed by noted authorities. Robert M. Anderson, in his

treatise American Law of Zoning, 3rd, p. 586, notes: ‘‘The federal

government has not so preempted regulation of the airways as

to prohibit local restrictions.’’ Similarly, in 5 Rathkopf, The Law

of Planning and Zoning, § 60.01(2), pp. 60-3—60-5, the authors

discuss preemption, stating:

Municipal zoning has been recognized as

filling a gap in regulations that is not covered by

the regulations issued by the FAA or state aviation

regulatory agencies, which do not generally concern

themselves with typical zoning considerations, and

neither federal nor state acts regulating aviation

and establishing regulatory agencies have been held

to preempt regulations adopted under zoning

enabling acts.

It is the responsibility of a local government zoning boa:

to valance the often competing interests of adjacent and

confronting property owners as the Carroll County Board of

Zoning Appeals judiciously and properly endeavored to do in tiie

instant case. The decision of the Court of Appeals of Maryland

leaves to the federal government the balancing of these local

interests when in fact the federal government, through the Federai

Aviation Administration, makes no effort to balance the interests

involved in this proceeding. If a local governmental body can

prohibit totally the establishment of an airport or airstrip with

the noise impact a valid consideration, then a local governmental

body should be able to place conditions on the establishment of

an airstrip absent clear federal preemption.

CONCLUSION

Congress did not expressly or implicitly legislate control over

the factual situation presented herein; the Federal Aviation

Administration has not promulgated any comprehensive scheme

of regulation; there is no dominant or overriding federal interest

involved and the scope of the decision of this Honorable Court

in City of Burbank v. Lockheed Air Terminal, Inc. has been

erroneously expanded.

WHEREFORE, for the reasons hereinabove set forth, the

decision of the Court of Appeals of Maryland should be reversed

with a finding that the conditions imposed by the Carroll County

Board of Zoning Appeals in granting a conditional use request

to establish a small rural airport are not preempted by federal law.

Respectfully submitted,

JOHN T. WILLIS

WEINBERG AND GREEN

Attorneys for Petitioners

APPENDIX A OPINION OF THE COURT OF APPEALS

OF MARYLAND FILED APRIL 19, 1990

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Appendix A

When the Carroll County Board of Zoning Appeals granted

a conditional use for a privately owned airport in 1982, it attached

to that grant several conditions. One of them limited the frequency

of take-offs of glider-towing aircraft; another established a curfew

for the operation of those aircraft. Both conditions were designed

to reduce the effect of aircraft engine noise on residential properties

near the airport. Both are invalid. They trespass upon a field that

has been impliedly preempted by federal law. City of Burbank

v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S. Ct. 1854,

36 L. Ed. 2d $47 (1973). A sketch of the pertinent facts before

us places the preemption issue in context.

In 1972 petitioner Robert E. Harrison (Harrison) obtained

from the Board of Zoning Appeals for Carroll County (the Board)

a conditional use permit to operate a ‘“‘private airport site and

drop zone for parachutists’’ on a portion of his farm located near

Woodbine in Carroll County. The parachutists, who used a single

aircraft, were members of a small skydiving club which engaged

in that activity mostly on weekends during the warmer months.

The conditional use was subject to a condition requiring the

establishment of parking facilities and to continued approval by

the State Aviation Commission.

As time passed the parachuting activity diminished. By the

early 1980's, petitioner Jerry Gaudet was leasing the Woodbine

airport and running petitioner Bay Soaring, a glider organization,

which used the airport for glider operations. (We shall refer to

petitioners collectively as *‘Bay Soaring’’.) The airport stayed open

every day. The gliders ordinarily were towed aloft by aircraft;

sometimes as many as 90 flights a day were generated. Bay Soaring

solicited the public to take lessons and rides at Woodbine. The

Appendix A

facility had obtained from the State Aviation Administration an

airport Operating certificate designating the ‘‘Woodbine Glider

Fort’’ to operate as a ‘*Licensed Private/Commercial Airport.’’

Harrison's neighbors (respondents Bernard A. Schwartz and

others, hereinafter collectively *‘the Neighbors’’) were not pleased.

Their protests resulted in a 1982 hearing before the Board, after

which the Board conciuded that the use of the airport had

expanded beyond the limits of the 1972 conditional use. Under

protest, Bay Soaring applied for a new conditional use permit.’

Yearings were held on that application. The Neighbors

opposed it, expressing concern about aircraft engine noise, among

other things. The Board granted a new permit, but attached to

it eight conditions. Two of them are the basis of the controversy

in this case. They are:

2. Aircraft take-offs shall be separated by

intervals of at least 15 minutes in order to minimize

the adverse effects of aircraft engine noise upon

the residents of the surrounding area and to reduce

the intensification of the use of the property in

what is otherwise a primarily rural residential area.

3. Aircraft take-offs shall not be made before

9:00 a.m. or later than 7:00 p.m. on any day.

A third condition imposed by the Board was:

|. Bay Soaring also appealed from the Board's 1982 decision. That appeal

was eventually disposed of adversely to Bay Soaring. It is not before us. See

County Comm'rs of Carroll County v. Gaudet, No. 1270, Sept. Term, 1986 (filed

23 June 1987) (unreported).

Appendix A

7. [Bay Soaring] will design take-off and

landing patterns in such a way that they will

minimize the adverse effect upon the neighboring

residents. In addition [Bay Soaring] shall require

people taking-off and landing from the airfield to

be familiar with the landing and take-off patterns

and to use them.’

When Bay Soaring appealed, the Circuit Court for Carroll

County found that ‘‘[iJn imposing the . . . Conditions, airport

noise appears to have been the Board’s paramount concern... .”’

It held that these three conditions were invalid because of federal

preemption. It remanded to the Board for further proceedings.

The Neighbors and Carroll County (the County) appealed to the

Court of Special Appeals, which held that condition 7, dealing

with the conduct of flight in navigable airspace, was preempted.

But it thought conditions 2 and 3 were not preempted. At the

behest of Bay Soaring, we issued a writ of certiorari. 317 Md.

440, 564 A.2d 784 (1989).

The United States Constitution ‘‘and the Laws of the United

States which shall be made in pursuance thereof; and all Treaties

made, or which shall be made, under the Authority of the United

States [are] the supreme Law of the Land.’’ U.S. Const. art. Vi,

cl. 2. See also Md. Decl. of Rights, Art. 2. Because of this

supremacy, valid federal legislation and regulations may preempt

state or local laws or regulatory actions. When valid federal law

actually conflicts with state law, the former preempts the latter.

2. Condition 7 is not at issue in this appeal.

Appendix A

Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S. Ct.

615, 621, 78 L. Ed. 2d 443, 452 (1984). And ‘‘[i]f Congress

evidences an intent to occupy a given field, any state law falling

within that field is pre-empted.’’ Jd. We have recognized that

‘*fi]f the federal law expressly states a preemptive intent, that intent

will govern.’’ Becker v. Litty, 318 Md. 76, 86, 566 A.2d 1101,

1106 (1989) (citing Hillsborough County v. Automated Medical

Labs., 471 U.S. 707; 713, 105 S. Ct. 2371, 2375, 85 L. Ed. 2d

714, 721 (1985)). Moreover, even absent express preemption, when

‘a federal statute made ‘in pursuance’ of the Constitution is so

comprehensive that [it occupies the field leaving] no room for

State action,’’ preemption also occurs. Becker, 318 Md. at 86,

566 A.2d at 1106. We deal here with implied preemption of the

‘‘occupy-the-field’’ variety.

The Commerce Clause of the United States Constitution

(art. I, § 8, cl. 3) gives Congress the power to control air traffic.

City of Burbank, 411 U.S. at 625, 93 S. Ct. at 1855-1856, 36

L. Ed. 2d at 549. Pursuant to that power, Congress has enacted

the Federal Aviation Act of 1958, 72 Stat. 731, and amended it

by the Noise Control Act of 1972, 86 Stat. 1234. See 49 U.S.C.

§ 1301 et seq. The Noise Control Act provides that

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 amend

such regulations as the FAA raay find necessary

to provide for the control and abatement of aircraft

noise and sonic boom, including the application

Appendix A

of such standards and regulations in the issuance,

amendment, modification, suspension, or

revocation of any certificate 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.

49 U.S.C. § 1431(b)(1). Under the same section, the EPA is

required to

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.

49 U.S.C. § 1431(c)(1). In addition, numerous regulations bear

on the topic of control of aircraft noise. See, e.g., 14 C.F.R.

parts 36.1-36.7, 36.9, 36.101, 36.103, 36.201, 36.301, 36.501

(1989). The validity of the statutes and regulations is not

questioned. Their implied preemptive effect is questioned. But

that issue has in large part been resolved by the Supreme Court

of the United States.

Appendix A

That Court’s decision in City of Burbank, supra, is the

‘*preeminent authority on the question of federal preemption in

the area of aviation.’’ Blue Sky Entertainment, Inc. v. Town of

Gardiner, 711 F. Supp. 678, 691 (N.D.N.Y. 1989). Furthermore,

City of Burbank speaks directly to the problem of local efforts

to control aircraft engine noise. It is upon that problem that the

cited cases focus; we need not decide what the full preemptive

reach of federal aviation law may be. See Ward v. State, 280

Md. 485, 495-496, 374 A.2d 1118, 1123-1124 (1977), cert. denied,

434 U.S. 1011, 98S. Ct. 723, 54 L. Ed. 2d 754 (1978) (‘‘Congress

has not occupied the entire field of aeronautics by the Federal

Aviation Act of 1958’’).

In City of Burbank, the city enacted an ordinance that made

it unlawful for the operator of the privately owned Hollywood-

Burbank Airport to allow any pure jet aircraft to take off between

11:00 p.m. of one day and 7:00 a.m. of the next. This curfew

was markedly similar to condition 3 as imposed by the Board

in the case before us. The Supreme Court concluded that federal

preemption — implied from federal occupation of the field of

aircraft noise regulation — rendered the ordinance

unconstitutional. 411 U.S. at 633, 93 S. Ct. at 1859-1860, 36 L.

Ed. 2d at 554.

The Supreme Court recognized that ‘* ‘we start with the

assumption that the historic police powers of the States were not

to be superseded by the Federal Act unless that was the clear and

manifest purpose of Congress... .’ ’’ City of Burbank, 411 U.S.

at 633, 93 S. Ct. at 1859, 36 L. Ed. 2d at 553 (quoting Rice v.

Santa Fe Elevator Corp., 331 U.S. 218, 230, 67S. Ct. 1146, 1152,

91 L. Ed. 1447, 1459 (1947)). It recognized that the federal

legislation before it in City of Burbank contained ‘‘no express

provision of pre-emption... .’’ 411 U.S. at 633, 93 S. Ct. at

Appendix A

1859, 36 L. Ed. 2d at 553. But it pointed out that a ‘‘ ‘scheme

of federal regulation may be so pervasive as to make reasonable

the inference that Congress left no room for the States to

supplement it... .’ ’’ /d. (again quoting Rice).

The Court examined at length the provisions of the Federal

Aviation Act and the Noise Control Act. It scrutinized the

legislative history, which included a Senate Report and a letter

from the Secretary of Transportation. The Senate Report

explained, ‘* ‘States and local governments are preempted from

establishing or enforcing noise emission standards for aircraft

unless such standards are identical to standards prescribed under

(the Noise Control Act of 1972).’ ’’ The letter from the Secretary

of Transportation to Senator Monroney declared that ‘‘ ‘State

and local governments will remain unable to use their police powers

to control aircraft noise by regulating the flight of aircraft.’ ”’

411 U.S. at 634-635, 93 S. Ct. at 1860, 36 L. Ed. 2d at 554-555

(quoting S. Rep. No. 92-1160, pp. 10-11, 1972 U.S. Code Cong.

& Admin. News 4663 and 1968 U.S. Code Cong. & Admin. News

2693-2694). It gave weight to the remarks of the Chairman of

the House Committee on Interstate and Foreign Commerce to

the effect that ‘‘we do not want’’ cities and states ‘‘to pass noise

regulations.’’ 411 U.S. at 636-637, 93 S. Ct. at 1861, 36 L. Ed.

2d at 555 (quoting 118 Cong. Rec. 37083 (1972)). It noted Senator

Tunney’s view that under the 1972 Act there would be ‘‘ ‘proposed

means of reducing noise in airport environments through the

application of emission controls on aircraft, the regulation of flight

patterns and aircraft and airport operations, and modifications

in the number, frequency, or scheduling of flights {as well as]

. . the imposition of curfews on noisy airports... .’ *’ 411 U.S.

at 637, 93 S. Ct. at 1861, 36 L. Ed. 2d at 555-556 (quoting 118

Cong. Rec. 37317 (1972)j [emphasis added in Supreme Court

opinion].

Appendix A

The Court concluded that ‘‘[i]t is the pervasive nature of

the scheme of federal regulation of aircraft noise that leads us

to conclude that there is pre-emption.’’ 411 U.S. at 633, 93 S.

Ct. at 1859-1860, 36 L. Ed. 2d at 554. The Circuit Court for Carroll

County found City of Burbank dispositive; the Court of Special

Appeals attempted to distinguish the case. There are distinctions,

but they make no constitutional difference.

The intermediate appellate court pointed out that Bay Soaring

uses the Woodbine Airport for recreational flights while the

Hollywood-Burbank Airport is commercial. Actually, the record

shows that Bay Soaring is engaged in a commercial operation,

but the Court of Special Appeals correctly observed that ‘‘[t]he

airplanes involved in Bay Soaring’s enterprise are not used for

the transport of goods or persons in the stream of commerce’’

and that ‘‘FAA control over glider port operations is minimal.’”’

Schwartz v. Harrison, supra, slip op. at 4. It thought that Board

condition 2 was not preempted because glider take-offs were not

subject to FAA control. /d., slip op. at 3-4. But see n.3, supra.

It thought that condition 3 was not preempted because ‘‘[t]he

City of Burbank Court was concerned with the congestion and

the loss of efficiency that might be caused by the imposition of

a curfew at a commercial airport’? — a concern not present in

the case of the Woodbine facility. /d., slip op. at 5.

Obviously, the small Woodbine airport is very different from

Hollywood-Burbank. Both, however, are privately owned. The

City of Burbank holding applies to privately owned airports as

3. FAA regulations nevertheless provide some control, including a

requirement that under some circumstances the tow plane pilot notify ‘‘the FAA

flight service station . . . before conducting any towing operations... ."’ 14

C.F.R. § 91.17(a)(4) (1989).

10a

Appendix A

well as publicly owned ones. The Supreme Court did not make

an exception for small airports that do not involve inter-airport

commercial cargo or passenger flights, or for activities not

expressly governed by federal statute or regulation.‘ If we were

dealing with the sort of preemption that arises from conflict

between federal and state enactments, these considerations might

be pertinent. But we are dealing with preemption by occupation

of the field. Once the field is occupied by the federal government,

neither state nor local government may enter it. And occupation

of the field does not mean that every blade of grass within it must

be subject to express federal control; it means only that

Congressional intent demonstrates that the area is subject to

exclusive federal control, whether potential or actual.

Among the concerns of the Supreme Court in City of Burbank

was the efficient and safe use of airspace and ‘‘the flexibility of

[the] FAA in controlling ai~ traffic flow.’’ 411 U.S. at 639, 93

S. Ct. at 1862, 36 L. Ed. 2d at 557 [footnote omitted]. Any

nonproprietary and nonfederal attempt to control noise was

preempted if it might affect that air traffic flow. Hence, ‘‘the

pervasive control vested in EPA and in [the] FAA under the 1972

Act seems . . . to leave no room for local curfews or other local

[noise] controls.’’ 411 U.S. at 638, 93 S.Ct. at 1862, 36 L. Ed.

2d at 556.

The scope of that ruling is emphasized by Justice (now Chief

Justice) Rehnquist’s dissent in City of Burbank, 411 U.S. 640,

4. City of Burbank does hold open the possibility that an airport proprietor

(including a municipality) may issue valid regulations controlling airport noise.

411 U.S. at 635-636 n.14, 93 S. Ct. at 1861 n.14, 36 L. Ed. 2d at 555 n.14.

We shall have occasion to refer to this exception later. For now, it is enough

to note that Carroll County is not the proprietor of Woodbine Airport.

lla

Appendix A

93 S. Ct. 1863, 36 L. Ed. 2d 558. Writing for himself and three

of his colleagues, Justice Rehnquist read legislative history quite

differently from the way the majority interpreted it. He argued

that noise regulation was a matter of particularly local concern,

411 U.S. at 643, 93 S. Ct. at 1864, 36 L. Ed. 2d at 559, and

that the legislative history showed an intent not to diminish the

power to abate noise through local zoning or other regulations.

411 U.S. at 650, 93 S. Ct. at 1868, 36 L. Ed. 2d at 563. He believed

that federal preemption extended only to the regulation of

technological methods of reducing the output of noise by aircraft.

411 U.S. at 651, 93 S. Ct. at 1868, 36 L. Ed. 2d at 563-564. These

views, however, were rejected by the majority, which clearly had

a vastly more expansive view of the extent of the preemption.

It is the majority view that binds us.

The reach of City of Burbank’s preemption holding is also

confirmed by what appears to be almost uniform interpretation

by other courts. Indeed, we have been unable to discover a case

(other than the opinion of the Court of Special Appeals) that

squarely supports the position of the Neighbors and the County.

The Neighbors, for example, cite Santa Monica Airport Ass'n

v. City of Santa Monica, 659 F.2d 100 (9th Cir. 1981). In that

case, a curfew and other noise control regulations were upheld.

But the city of Santa Monica, as the court pointed out, was the

proprietor of the airport in question, and thus within the proprietor

exception to the general rule of City of Burbank. 659 F.2d at

103-104.

The proprietor exception, as various courts have recognized,

is based on the fact that an airport proprietor may be liable for

excessive noise emanating from aircraft that use the airport. See,

e.g., Griggs v. Allegheny County, 369 U.S. 84, 82 S. Ct. 531,

12a

Appendix A

7 L. Ed. 2d 585 (1962); United States v. Causby, 328 U.S. 256,

66 S. Ct. 1062, 90 L. Ed. 1206 (1946). To guard against liability,

the airport proprietor should be able to promulgate reasonable

noise regulations. It was that window of nonpreemption that the

Supreme Court left open in City of Burbank, see n.4, supra, and

a number of courts have relied on it to hold that proprietary

regulations of aircraft noise are not preempted. For additional

cases explaining the proprietor’s exception, see, for example, City

of Blue Ash v. McLucas, 596 F.2d 709, 712 (6th Cir. 1979); United

States v. New York, 552 F. Supp. 255 (N.D.N.Y. 1982). cert.

denied, 466 U.S. 936, 104 S. Ct. 1907, 80 L. Ed. 2d 456 (1984);

National Aviation v. City of Hayward, 418 F. Supp. 417 (N.D.

Cal. 1976); Air Transport Ass’n of America v. Crotti, 389 F. Supp.

58 (N.D. Cal. 1975). As we already have pointed out, Carroll

County is not the proprietor of Woodbine Airport; the proprietor

exception is not available to it.

Carroll County asserts that Wright v. County of Winnebago,

73 Ill. App. 3d 337, 391 N.E.2d 772 (1979), demonstrates the

validity of the Board’s conditions. It does not. In Wright local

authorities, acting under a zoning ordinance, denied the Wrights

permiggion to establish a restricted aircraft landing area from which

Mr. Wright proposed to commute to work by plane. There is

some attempt in Wright to distinguish City of Burbank on grounds

similar to those put forward by the Court of Special Appeals here.

73 Ill. App. 3d at 343-344, 391 N.E.2d at 777-778. But the essential

rationale in Wright is that local government may exercise zoning

authority to prohibit a restricted landing area altogether. /d. at

344, 391 N.E.2d at 777-778. To patently deny permission to create

an airport-like facility does not invade the noise-comrol field that

is federally occupied, for that sort of zoning denial cannot affect

the way in which aircraft operate in navigable airspace.

l3a

Appendix A

Indeed, in Garden State Farms, Inc. v. Bay, 77 N.J. 439,

447, 390 A.2d 1177, 1181 (1978), relied on by the Neighbors and

the County, the New Jersey Supreme Court conceded that state

and local authority over the operation and navigation of aircraft

was preempted. The court held, however, that a local zoning

ordinance could validly prohibit a small helistop. To say that local

authority may use its zoning power to ban a certain use is not

the same as to say that it may permit a use subject to conditions

that affect air navigation. City of Burbank does not preempt all

state and local zoning power with respect to airports. A zoning

ordinance that does not regulate aircraft noise emissions or the

actual conduct of flight operations may withstand a preemption

argument. Faux-Burhans v. Frederick County, 674 F. Supp. 1172

(D. M. 1987), aff’d without opinion, 859 F.2d 149 (4th Cir. 1988),

cert. denied, ____ U.S. ___, 109 S. Ct. 869, 102 L. Ed. 2d 992

(1989). See also Gateway Motels, Inc. v. Monroeville, 106 Pa.

Commw. 42, 525 A.2d 478 (Pa. Commw. Ct. 1987) (zoning

conditions requiring alarm system and installation of fire

equipment at heliport not preempted under City of Burbank).

The problem before us is that Board conditions 2 and 3 do both.

Local government may not adopt noise abatement plans that

impinge on aircraft operations. San Diego Unified Port District

v. Gianturco, 651 F.2d 1306 (9th Cir. 1981), cert. denied,

Department of Transportation v. San Diego Unified Port District,

455 U.S. 1000, 102 S. Ct. 1631, 71 L. Ed. 2d 866 (1982) (striking

down curfew).

The Neighbors also take comfort from cases such as Bieneman

v. City of Chicago, 864 F.2d 463 (7th Cir. 1988), cert. denied,

____ U.S. ___, 109 S. Ct. 2099, 2100, 104 L. Ed. 2d 661 (1989),

but Bieneman is cold comfort for them. Bieneman was an action

to recover damages by one adversely affected by noise from

O’Hare Airport. As Judge Easterbrvok points out, for the court,

l4a

Appendix A

‘*Bieneman wants damages, not regulation’’ and City of Burbank

dealt with regulation. 864 F.2d at 472.

The Bieneman court held that even though the substantive

area of aircraft noise regulation was preempted by federal law,

common law remedies were not. 864 F.2d at 471. That is also

the holding of Wood v. City of Huntsville, 384 So. 2d 1081 (Ala.

1980). In that case Dr. Wood’s neighbors sought to enjoin his

operation of a helicopter from his roof. The Supreme Court of

Alabama reasoned that ‘‘[i]n the specific area of noise control,

state and local governments cannot use their police powers to

control noise by regulating the flight of planes.’’ /d. at 1084. But

it held that liability in nuisance might exist despite federal

regulation of airport activities. Jd. at 1085. Of course, neither

the Neighbors nor Carroll County are suing for money damages

because of airport noise or in nuisance. Rather, the County is

seeking to use its ‘‘police powers to control noise by regulating

the flight of planes.’’

It is that sort of regulation that has been repeatedly invalidated

on the ground of federal preemption. See, e.g., Pirola v. City

of Clearwater, 711 F.2d 1006 (11th Cir. 1983) (curfew and air

traffic pattern ordinances preempted); Northeast Phoenix

Homeowners’ Ass’n v. Scottsdale Municipal Airport, 130 Ariz.

487, 636 P.2d 1269 (Ariz. Ct. App. 1981) (judicially-imposed

curfew preempted); Gary Leasing Inc. v. Town of Pendleton, 127

Misc. 2d 194, 485 N.Y.S.2d 693 (N.Y. Sup. Ct. 1985) (curfew

and limitation on maximum number of planes that could be based

at airport preempted). °

5. For a list of some 13 earlier decisions from several federal circuits and

SIX states that have accepted, ‘‘without contrary authority’’ the ‘‘proposition

(Cont'd)

lSa

Appendix A

All the cases finding preemption do not necessarily involve

large airports. The airport in United States v. City of Blue Ash,

487 F. Supp. 135 (S.D. Ohio, W.D. 1978), aff'd mem. 621 F.2d a

227 (6th Cir. 1980), was not served by any certified air carrier,

had no regularly scheduled flights, and lacked a control tower.

It was a general aviation airport. Nevertheless, a noise control

ordinance was preempted because it dealt with noise control of

aircraft in flight in navigable airspace. Similarly, a federal district

court struck down an attempt by the Town of Gardiner, New

York, to regulate small airports and parachute jumping by, among

other things, prohibiting night jumping and banning aircraft that

emitted noise over a certain level. In Blue Sky Entertainment,

Inc. v. Town of Gardiner, supra, 711 F. Supp. at 694-695, the

court explained that the town could not use its police powers to

control aircraft noise by regulating the flight of aircraft. It pointed

out that *‘[w]ith the exception of reasonable proprietary regulations

courts have uniformly struck down attempts by local

governments to regulate the noise of aircraft .’"* /d. at 695

[footnote and citation omitted].

(Cont'd)

that the federal government has preempted the area of flight control regulation

to eluminate or regulate noise,"’ see San Diego Unified Port District v. Gianturco,

6$1 F.2d 1306, 1315 n.22 (9th Cir. 1981), cert. denied, Department of

Transportation v. San Diego Unified Port District, 455 U.S. 1000, 102 S. Ct

1631, 71 L. Ed. 2d 866 (1982). We note, too, that in Ward v. State, 280 Md 4

485, 496, 374 A.2d 1118, 1124 (1977), cert. denied, 434 U.S. 1011, 98 S. Cr

723, 54 L. Ed. 2d 754 (1978), we referred to City of Burbank’s hoiding with

respect to noise control preemption, but construed the holding *‘as limited to

that area of aeronautics.”

6. The Neighbors aver that Congressional action since City of Burbank

v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S. Ct. 1884, 36 L. Ed. 2d

$47 (1973), has modified the holding of that and other cases by showing a less

(Cont'd)

EE eOOT

l6a

Appendix A

Ill.

The Board's condition 3 — the curfew — falls directly within

the preemption rule of City of Burbank as well as that of other

cases we have cited. It is plainly an attempt to limit aircraft noise

by regulating the operation of aircraft in navigable airspace over

which the FAA has control. Condition 2 is a less direct effort

(Cont'd)

preemptive Congressional intent. They cite the Aviation Safety and Noise

Abatement Act of 1979 (49 U.S.C. §§ 2101 ef. seg.) 101 Stat. 1489, 1523. as

well as the Airport and Airway improvement Act of 1982 (49 U.S.C. §§ 2201

et seq.) 101 Stat. 1487-1807. To these we might add the Airport Noise

Compatibility Planning Regulations of 1981. 14 C_F.R. §150 (1989), the Airline

Deregulation Act of 1978, 49 U.S.C. § 130S(a) and (b), 92 Stat. 1708, as amended

by 98 Stat. 1709, and the Aviation Noise Abatement Policy of 1976, U.S

Department of Transportation (November 18, 1976). See Bennett, Airport Noise

Litigation, 47 J. Air. L. & Com. 449, 452-453 (1982). The Neighbors see support

for their view in some legisiative history of the 1979 Act emphasizing state and

local responsibility for assuring that land use planning and zoning “‘are

compatible with present and projected aircraft noise exposure in the area."’ S

Rep. No. 52, 96 Cong. 2d Sess. (1980), 1980 U.S. Code Cong. & Admin. News

89. 91. What this language deals with is not local control of aircraft noise but

local zoning to keep residential and other incompatible activities away from

airports. See Greenberg v. State, 66 Md. App. 24, $02 A.2d $22, cert. denied.

30S Md. 621, SOS A.2d 1342 (1986) (discussing noise zones under Marviand

airport zoning law; Md. Code (1977, 1989 Supp.), §§ 5-801 through $-823 of

the Transportation Article).

Review of post-City of Burbank federal airway legislation and the numerous

regulations adopted pursuant thereto shows that the federal presence in the field

has become even more pervasive than it was in 1973. No court has agreed with

the Neighbors that this legislation has tended to ameliorate the holding of Cit»

of Burbank. See, e.2.. San Diego Unified Port District, 651 F 2d at 1313 n.15

(Acts subsequent to City of Burbank manifest Congress's continuing intent to

preempt local regulation)

17a

Appendix A

to control noise by controlling aircraft operations, but it is one,

nevertheless. See Gary Leasing, Inc., 127 Misc. 2d at 195, 485

N.Y.S.2d at 694. We hold that both conditions are preempted

under City of Burbank and, therefore, unconstitutional.

This holding compels us to reverse the judgment of the Court

of Special Appeals with respect to Board conditions 2 and 3. Our

holding, in effect, affirms the judgment of the Circuit Court for

Carroll County which remanded the case to the Board for further

proceedings in light of O’Donneil v. Bassler, 289 Md. 501, 513-514,

415 A.2d 1003, 1010 (1981), cert. denied, 299 Md. 426, 474 A.2d

219 (1984) (county zoning board has authority as administrative

body to determine whether to grant exception).

JUDGMENT OF THE COURT OF

SPECIAL APPEALS REVERSED IN PART

AND AFFIRMED IN PART. CASE

REMANDED TO THAT COURT WITH

DIRECTION TO AFFIRM THE JUDGMENT

OF THE CIRCUIT COURT FOR CARROLL

COUNTY. COSTS IN THIS COURT AND IN

THE COURT OF SPECIAL APPEALS TO BE

PAID BY APPELLEES.

18a

Appendix A

IN THE COURT OF APPEALS OF MARYLAND

No. 89

September Term, 1989

ROBERT E. HARRISON ET AL.

‘

BERNARD A. SCHWARTZ ET AL.

Murphy, C.J.

Eldridge

Cole

Rodowsky

McAuliffe

Adkins

Chasanow,

JJ.

Dissenting opinion by McAuliffe, J.

Filed: April 19, 1990

McAuliffe, J., dissenting.

I cannot agree that the Congress of the United States intended

to pre-empt the right of Carroll County to impose the conditions

at issue here, and I do not believe that the United States Supreme

Court held to the contrary in City of Burbank v. Lockheed Air

Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed. 2d $47

(1973). In City of Burbank, the Supreme Court dealt with a city

19a

Appendix A

ordinance that prohibited jet aircraft from taking off from the

Hollywood-Burbank Airport between 11 p.m. of one day and

7 a.m. the next day. This ordinance affected a regularly scheduled

flight of a commercial air carrier that originated in Oakland and

was scheduled to stop at Hollywood-Burbank before departing

for San Diego. The Court held that ‘‘airspace management”’ had

been pre-empted by the United States, and that the City of

Burbank regulation invaded the field of ‘‘airspace management.”’

The Court noted the findings of the trial judge that:

The imposition of curfew ordinances on a

nationwide basis would result in a bunching of

flights in those hours immediately preceding the

curfew. This bunching of flights during these hours

would have the twofold effect of increasing an

already serious congestion problem and actually

increasing, rather than relieving, the noise problem

by increasing flights in the period of greatest

annoyance to surrounding communities. Such a

result is totally inconsistent with the objectives of

the federal statutory and regulatory scheme.

The imposition of curfew ordinances on a

nationwide basis would cause a serious loss of

efficiency in the use of the navigable airspace.

Id. at 627-28.

The case before us does not involve scheduled airline service,

or a public use airport. It does involve a small, grass airstrip from

which one or two powered aircraft operate to tow gliders into

20a

Appendix A

the air. This airport is privately owned. It is not proposed to be

a general aviation airport. It will not be open to other aircraft

wishing to land or take off. The conditions imposed by the Carroll

County Board of Zoning Appeals will not ‘‘increase congestion,

cause a loss of efficiency, [or] aggravate the noise problem,’’ as

was the case in City of Burbank. Id. at 628.

The Woodbine Airstrip is not a ‘‘public use airport’’ within

the coverage of the Aviation Safety and Noise Abatement Act

of 1979, 49 U.S.C. §§ 2101 ef. seqg., because it is not a ‘*public

airport,’’ a ‘‘privately owned reliever airport,’’ nor a ‘‘privatelvy

owned airport which is determined . . . to enplane annually 2,500

Or more passengers and receive scheduled passenger service of

aircraft.’’ 49 U.S.C. § 2202(A)(18).

Although all aircraft, including those operating from the

Woodbine Airstrip, are subject to certain Federal Aviation

Administration regulations, there is no control tower at Woodbine,

and no direct Federal Aviation Administration supervision of the

operation of the airport.

As the Supreme Court has pointed out, the implied pre-

emption of this field by Congress must necessarily be very broad.

Notwithstanding that breadth, I do not believe that it extends

so far as to preclude the local imposition of conditions upon the

grant of permission to operate a facility of this type, where airspace

Management 1s not implicated.

[ concede that the majority opinion of a sharply divided

Supreme Court in City of Burbank may be read as expansively

as the majority of this Court suggests. I do not agree that such

a broad reading is mandated, or reasonable as applied to the facts

of the case before us. I would hold that the imposition of

2la

Appendix A

conditions two and three was a valid exercise of the authority

of the Carroll County Board of Zoning Appeals.

aia

APPENDIX B — OPINION OF THE COURT OF SPECIAL

APPEALS OF MARYLAND

No. 25912 Law

In The Circuit Court

For Carroll County

JERRY GAUDET, ET AL.

Appellants

VS.

CARROLL COUNTY BOARD OF ZONING APPEALS, ET

AL.

Appellees

No. 26449 Law

In The Circuit Court

For Carroll County

IN THE MATTER OF APPLICATION OF ROBERT E.

HARRISON AND JERRY GAUDET (BAY SOARING) FOR

A CONDITIONAL USE PERMIT FOR AN AIRPORT

LANDING SITE

vo.

THE BOARD OF ZONING APPEALS CASE NO. 1988

23a

Appendix B

In 1972 Appellants received a Conditional Use Permit to

operate a private airport. On December 20, 1982, the Board of

Zoning Appeals for Carroll County revoked Appellant’s Permit,

ruling their existing use different from .hat approved. Appellants

appealed (Case No. 25912) and thereafter applied for a new

Conditional Use Permit, which the Board granted on May 11,

1984, subject to the following eight conditions:

1. Within thirty (30) days from the date of

this decision, the Applicant must extend the runway

500 feet to the north and reduce the runway 500°

feet from the south property line in order to

provide greater distance for aircraft to gain altitude

before crossing the southern property line and

thereby reduce the adverse effect which the noise

of aircraft taking-off causes the neighboring

properties. Specifically, the runway may not be

closer at its southern end to the property line than

500 feet.

2. Aircraft take-offs shall be separated by

intervals of at least 15 minutes in order to minimize

the adverse effects of aircraft engine noise upon

the residents of the surrounding area and to reduce

the intensification of the use of the property in

what is otherwise a primarily rural residential area.

3. Aircraft take-offs shall not be made before

9:00 a.m. or later than 7:00 p.m. on any day.

4. The operations building which is shown to

exist in the ‘‘C’’ Conservation District must be

moved to the ‘‘A’’ Agricultural District, and the

24a

- Appendix B

property owner must apply for and receive a

building permit, zoning certificate and use and

Occupancy permit including site plan approval

before using the building for any purpose from

the date of this decision.

5. The Applicant must prepare and submit

a site development plan in accordance with the

provisions of Article 10, Section 10.4(d) of the

Carroll County Zoning Ordinance within one (1)

month of the date of this decision; provided that

the Board may authorize an extension of one (1)

month based upon a written request by the

Applicants justifying to the Board’s satisfaction

such an extension and without necessity for a

further hearing.

6. The Applicant must erect a sign at or

adjacent to the entrance to the site. The sign should

identify the property and the use with suffficient

clarity that a reasonable person would be able to

find the site if he were looking for it. The area

of the sign face shall not be greater than three (3)

feet by four (4) feet.

7. The Applicant will design take-off and

landing patterns in such a way that they will

minimize the adverse effect upon neighboring

residents. In addition, the Applicant shall require

people taking-off and landing from the airfield to

be familiar with the landing and take-off patterns

and to use them.

25a

Appendix B

8. Any failure to comply strictly with the

above conditions constitutes a basis for this Board

to void the approval granted hereby.

Appellants appealed the imposition of the conditions (Case

No. 26499) and on May 25, 1984 Case Nos. 25912 and 26499

were consolidated. By Order of August 19, 1986, this Court

reversed the Board’s revocation of Appellants’ Permit, thus

rendering Case No. 26499 moot. On June 23, 1987, the Court

of Special Appeals reversed as to Case No. 25912 and remanded

Case No. 26499 for further proceedings. Accordingly, on July

11, 1988, a hearing was held and the matter was held sub curia.

Appellants attack the legitimacy and reasonableness of the

eight conditions. They begin by arguing that Conditions 1, 2, 3

and 7 are invalid, as local regulation of airport noise is preempted

by Federal Law. The Court agrees, in part. Jn City of Burbank

v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854,

36 L.Ed.2d 547 (1973) the Supreme Court found Federal

preemption of local regulation of aircraft noise emissions at

airports by Federal Statute, viz the Federal Aviation Act of 1958,

72 Stat. 731, as amended by the Noise Control Act of 1972, 86

Stat. 1234 and the regulations promulgated pursuant thereto in

14 CFR Pts. 71, 73, 75, 77, 91, 93, 95 and 97. Conditions |,

2, 3 and 7 are facially, and are explained in the Board’s 1984

Decision as specifically designed to mitigate the effect of airport

noise on the community:

The protestants found the noise to be

objectionable. During the hearing an attempt was

made to introduce evidence concerning decibel

levels. Unfortunately, the Board did not have the

benefit of an expert to interpret the decibel readings

26a

Appendix B

and cannot rely on the readings for its decision.

Instead, the Board must rely upon the testimony

of the neighbors which is sufficient to show clearly

that the proposed use has a substantial impact on

them. Complaints concerning noise were voiced

both because of its volume and its frequency. (P.

7, Case No. 1988).

While regulation of noise is generally an acceptable exercise

of police power, City of Burbank requires that the Court find

Conditions 2, 3 and 7 invalid; they infringe upon the Federally

preempted regulation of navigable airspace, by directly affecting

the manner in which flight operations will be conducted. Clearly,

the Board’s imposition of a curfew, and its regulation of take-

off intervals and flight patterns conflicts with the Federal attempt

to regulate air safety. ‘‘If we were to uphold the . . . ordinance

and a significant number of municipalities followed suit, it is

obvious that fractionalized control of the timing of take-offs and

landings would surely limit the flexibility of FAA in controlling

air traffic flow’’. City of Burbank, supra, at 1862.

City of Burbank, however, does not support Appellants’ claim

that the Board is preempted in its attempt to create a 500 foot

southern set-back of Appellant’s runway (Condition 1). In this

regard, the Court finds the Federal cases persuasive. In Faux-

Burhans -v. County Commissioners of Frederick County, 674

F.Supp. 1172 (D.Md. 1987) the Court ruled Frederick County’s

set-back requirements applied to airport operations and were not

preempted, since they in no way inhibited free transit of navigable

airspace. ‘‘No federal law gives a citizen the right to operate an

airport free of local zoning control.’’ /d. at 1174.

Having ruled Conditions 2, 3 and 7 invalid, the Court next

27a

Appendix B

~examines the validity of Conditions 1, 4 and 5 independent of

the preemption issue. (Condition 6 was not objected to and is

not in issue; Condition 8, according to Appellant, ‘‘is not really

a condition. Petitioner objects to it insofar as it purports to provide

a basis for revocation above and beyond any basis which, may exist

as a matter of law.’’ To the contrary, the Court finds Condition

8 to be no more than an articulation of the prerequisite implicit

in any conditional use, i.e. compliance with conditions imposed.)

While the Board’s authority to impose the remaining Conditions

under Section 17.2 of the Zoning ordinance is apparent, see

Montgomery County v. Mossburg, 228 Md. 555 (1962), and in

fact was conceded in prior argument, Appellants challenge the

reasonableness of Conditions 1, 4, and 5.

The Court finds Condition | to be a reasonable imposition

of a set-back requirement designed to accommodate both the

conditional use and the concerns of the surrounding community;

again, it was supported by substantial testimony regarding the

effect of airport noise on the airport’s neighbors. The

reasonableness of Condition 4 (requiring the operations building

to be moved) may be moot as it was proffered at the July 11,

1988 hearing that the building no longer exists; however, assuming

it remains in issue, the Court finds Condition 4 represents a

procedurally improper attempt by the Board to bring the structure

in question into compliance with the County Zoning Ordinance.

The issue of whether Appellants’ operations building validly exists

as a non-conforming use has yet to be thoroughly litigated pursuant

to the provisions of the Ordinance; the Court finds the Board’s

circumvention of that process via ihe expediency of a Condition

to be improper.

Finally, in addressing the propriety of Condition 5, the Court

turns to Section 10.4(d) of the Zoning Ordinance, which reads,

28a

Appendix B

In part:

(d) (Added 9-22-77) All applications for

permitted or conditional uses shall be subject to

a site plan review by those agencies determined

appropriate by the Zoning Administrator, who,

following any referral to such agencies, shall cause

the plan to be presented to the Commission which

shall have the authority to approve the plan as

presented, or approve the plan with modifications

or conditions. No Zoning Certificate shall be issued

by the Zoning Administrator until the Commission

or its duly authorized representative, should the

Commission expressly delegate its authority, has

approved the plan.

The Court finds the Condition valid. It is both in accord with

the language of the Ordinance above and well suited to the Board’s

expressed goal of protecting neighboring interests — a concern

prompted by significant evidence presented at the Board hearing.

With four of the Board’s eight Conditions today deemed

improper, the Court finds it necessary to remand the case to the

Board for further proceedings. See O’Donnell v. Bassler, 289 Md.

501 (1981). In O’Donnell, Appellants received a Special Exception

Use Permit for a commercial aircraft landing field from the Board

of Appeals of Howard County, subject to 13 Conditions. After

striking 5 of the Conditions as imposed without proper authority,

the Circuit Court determined that the grant of the requested Special

Exception Use Permit was supported by substantial evidence, even

without the conditions. Accordingly, the Court modified the

Board’s Order by eliminating the violative Conditions and affirmed

the Board’s Order as modified.

29a

Appendix B

The Court of Appeals reversed, summarizing Federal and

Maryland Law on the matter:

It is a fundamental principle of administrative

law that a reviewing court should not substitute

its judgment for the expertise of the administrative

agency from which the appeal is taken. This

principle underlies the rule that if an administrative

function remains to be performed after a reviewing

court has determined that an administrative agency

has made an error of law, the court ordinarily may

not modify the agency order. Under such

circumstances, the court should remand the matter

to the administrative agency without modification.

Of course, the Court need not remand if the

modification is so minor as to make remand

inappropriate, or if remand is otherwise futile. /d.

at 509-10 (citations omitted).

In imposing the eight Conditions, airport noise appears to have

been the Board’s paramount concern; and part of its method for

addressing that concern we today rule invalid. O'Donnell makes

clear that it is now for the Board, and not the Court, to decide

whether the Conditional Use should be granted absent the excised

Conditions.

Finally, by Motion of March 28, 1988, Appellee requests that

the Stay of Enforcement ordered by the Court on May 25, 1984

be lifted, thus requiring Appellants to comply with the Board's

1984 Decision pending final judgment. The Order in question

reads, in part:

ORDERED this 25th day of May, 1984, that

—————-LL

30a

Appendix B

zoning enforcement action based upon or related

to the decisions of the Board in the above-

captioned cases be, and it is hereby, STAYED until

such time as a final decision in both cases is

rendered by this Court. (emphasis added)

As Case No. 26499 has yet to reach the aforementioned posture,

the Court will deny Appellee’s Motion.

Therefore, it is this 23rd day of August, 1988, by the Circuit

Court for Carroll County, ORDERED that Case No. 26499 is

hereby REMANDED to the Board of Zoning Appeals for Carroll

County for further proceedings, and

IT IS FURTHER ORDERED that Appellee’s Motion to Lift

Stay be and is hereby DENIED.

s/ D.C. Gilbert

Judge

TRUE COPY TEST

s/ Ilegible

Clerk

August 29, 1988

3la

APPENDIX C — OPINION AND ORDER OF THE CIRCUIT

COURT FOR CARROLL COUNTY

UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1425

September Term, 1988

BERNARD A. SCHWARTZ, ET AL.

ROBERT E. HARRISON, ET AL.

Gilbert, C.J.

Bishop

Fischer,

JJ.

PEP? CURIAM

Filed: May 4, 1989

This is an appeal from an order by the Circuit Court for

Carroll County invalidating in part and remanding a decision by

the Board of Zoning Appeals.

Dissatisfied with that decision, zoning protestants Bernard

Schwartz and the Carroll County Commissioners have raised two

issues for our review:

32a

Appendix C

1. Whether the conditions attached to the conditional use

permit are invalid due to preemption by federal law.

11. Whether the circuit court abused its discretion in allowing

the Stay of Enforcement to remain in effect.

1. Preemption

Judge Frederick W. Smalkin wrote in Faux-Burhans y.

County Commissioners of Frederick County, 674 F. Supp. 1172,

1174 (D. Md. 1987):

‘*Pre-emption of state and local regulation of

a particular subject matter by Congressional

enactment is a well-known, but infrequently

encountered phenomenon of American

constitutional law, with ancient (at least by

American standards) origins. See Cooley v. Board

of Wardens, 2-5 U.S. (12 How.) 299, 13 L. Ed.

996 (1852). It poses entirely a question of federal

Statutory construct:on, depending for its

application in a particular case upon ascertainment

of the intent of Congress to enact a pervasive

scheme of regulation of the subject matter. City

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

U.S. 624, 633... (1973).”’

Ordinarily, a local administrative authority such as the Board of

Zoning Appeals has delegated to it the police power to attach

conditions to the zoning uses. Yet, the otherwise valid police power

may be preempted by federal regulations governing the same

subject matter. City of Burbank v. Lockheed Air Terminal, Inc.,

supra. The Circuit Court for Carroll County (Gilmore, J.) held

33a

Appendix C

that three conditions prescribed by the Board were invalid because

they were preempted by federal law.

The three conditions nullified by Judge Gilmore were:

**No. 2. Aircraft take-offs shall be separated

by intervals of at least 15 minutes in order to

minimize the adverse effects of aircraft engine noise

upon the residents of the surrounding area and

to reduce the intensification of the use of the

property in what is otherwise a primarily rural

residential area.

No. 3. Aircraft take-offs shall not be made

before 9:00 a.m. or later than 7:00 p.m. on any

day.

No. 7. The Applicant will design take-off and

landing patterns in such a way that they will

minimize the adverse effect upon neighboring

residents. In addition, the Applicant shall require

people taking-off and landing from the airfield to

be familiar with the landing and take-off patterns

and to use them.’’

Judge Gilmore relied upon the City of Burbank decision in making

his determination that federal law had preeiiipted the subject

matter addressed by three conditions.

The Supreme Court in City of Burbank struck down a city

Ordinance that prohibited jet aircraft take-offs from the

34a

Appendix C

Hollywood-Burbank airport between 11:00 p.m. and 7:00 a.m.

The curfew was intended as a local regulation of aircraft noise

at the Hollywood-Burbank airport. The Court held that the curfew

was preempted by the Federal Aviation Act of 1958, as amended

by the Noise Control Act of 1972, 49 U.S.C. § 1431. The Court

ruled that preemption existed because of the **pervasive nature

of the scheme of federal regulation of aircraft noise.’’ City of

Burbank, 411 U.S. at 633.

The Federal Aviation Act, as amended by the Noise Control

Act of 1972, provides in pertinent part:

‘‘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 amend

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 authorized by this title.

No exemption with respect to any standard or

regulation under this section may be granted under

any provision of this Act 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

35a

Appendix C

EPA as soon as practicable after the exemption

is granted.’’

49 U.S.C. § 1431(5)(1972). The Supreme Court interpreted that

Statute as vesting such pervasive control in the FAA and EPA

that no State and local governments have authority to control

aircraft noise through the regulation of the flight of aircraft. City

of Burbank, 411 U.S. at 638.

Condition 7 imposed by the Board is clearly preempted by

federal law since it is concerned with ‘‘the actual conduct of flight

Operations in navigable airspace.’’ Faux-Burhans, 674 F. Supp.

at 1174. The Federal Aviation Act explicitly provides, ‘‘The United

States of America is declared to possess and exercise complex

and exclusive national sovereignty in the airspace of the United

States... .’’ City of Burbank, 411 U.S. at 626-27, quoting Section

1108(a) of the Federal Aviation Act, 49 U.S.C. § 1508(a).

Conditions 2 and 3, we believe, are not preempted by federal

law. A significant fact distinguishing the instant case from City

of Burbank is that Bay Soaring operates a private airport used

only for recreation flights while the Hollywood-Burbank airport

is commercial. The grounds for preemption which the Court

considered in City of Burbank included both FAA control and

a concern for the impact of the city ordinance on interstate

commerce. City of Burbank 411 U.S. at 627. The airplanes

involved in Bay Soaring’s enterprise are not used for the transport

of goods or persons in the stream of commerce. Moreover, FAA

control over glider port operations is minimal. Although the pilots

and glider planes are subject to FAA certification, the FAA

exercises no control over the airport itself. The FAA does not

regulate the take-off and landing pattern: of glider planes, nor

does it regulate flight patterns for gliders.

36a

Appendix C

Condition 2 of the zoning board’s order regulates the timing

of glider take-offs. Inasmuch as that activity is subject to no FAA

control, we believe the trial judge erred in finding it preempted

by federai law.

Condition 3 imposes a curfew on the glider port. Although

the Court in City of Burbank invalidated a similar curfew, an

examination of its reasoning for that decision leads to the

conclusion thar the holding is inapposite to condition 3 in the

instant case. The City of Burbank Court was concerned with the

congestion and the loss of efficiency that might be caused by the

imposition of a curfew at a commercial airport. That concern

does not apply to the instant case. There is no reason to expect

that a glider port will experience a rush of soaring enthusiasts

who wish to be towed aloft at 6:55 p.m., just prior to the curfew.

II. Stay of Enforcement

Judge Gilmore declined to lift the Stay of Enforcement

imposed on May 25, 1984. The judge determined that the stay

should remain in effect because the court, after invalidating three

of the eight conditions imposed upon the use permit by the Board

of Zoning Appeals, was required to remand the matter to the

Board of Zoning Appeals. O’Donnell v. Bassler, 289 Md. 501

(1981) (when an administrative function remains to be performed

after the reviewing court has found an error of law, the court

should remand the matter to the administrative agency). Inasmuch

as the Board must determine whether to grant the permit with

the remaining conditions, or perhaps impose additional conditions,

it was appropriate for the court to continue the vitality of the stay.

As we see it, Judge Gilmore possessed the authority to grant

the Stay of Enforcement, Md. Rule B6, and he did not abuse

his discretion in refusing to lift that stay.

37a

Appendix C

JUDGMENT REVERSED IN PART AND

AFFIRMED IN PART.

COSTS TO BE DIVIDED EQUALLY a

BETWEEN THE APPELLANTS AND THE

APPELLEES.

38a

APPENDIX D — RELEVANT STATUTORY PROVISIONS

Federal Aviation Act of 1958, 49 U.S.C. Section 1301, et seg.:

GENERAL PROVISIONS

§ 1301. Definitions.

As used in this Act, unless the context otherwise

requires —

(1) *‘Administrator’’ means the Administrator

of the Federal Aviation Agency [Federal Aviation

Administration].

(2) ‘‘Aeronautics’’ means the science and art

of flight.

(3) ‘‘Air Carrier’? means any citizen of the -

United States who undertakes, whether directly or

indirectly or by a lease or any other arrangement,

to engage in air transportation: Provided, That the

Board may by order relieve air carriers who are

not directly engaged in the operation of aircraft

in air transportation from the provisions of this

Act to the extent and for such periods as may be

in the public interest.

(4) ‘‘Air Commerce’’ means interstate,

overseas, or foreign air commerce or the

transportation of mail by aircraft or any operation

or navigation of aircraft within the limits of any

Federal airway or any operation or navigation of

aircraft which directly affects, or which may

endanger safety in, interstate, overseas, or foreign

air commerce.

39a

Appendix D

(S) ‘‘Aircfaft’” means any contrivance now

known or hereafter invented, used, or designed for

navigation of or flight in the air.

(6) ‘‘Aircraft engine’’ means an engine used,

or intended to be used, for propulsion or aircraft

and includes all parts, appurtenances, and

accessories thereof other than propellers.

(7) ‘‘Airman’’ means any individual who

engages, as the person in command or as pilot,

mechanic, or member of the crew, in the navigation

of aircraft while under way; and (except to the

extent the Administrator [Secretary of

Transportation] may otherwise provide with

respect to individuals employed outside the United

States) any individual who is directly in charge of

the inspection, maintenance, overhauling, or repair

of aircraft, aircraft engines, propellers, or

appliances; and any individual who serves in the

capacity of aircraft dispatcher or air-traffic control-

tower operator.

(8) ‘‘Air navigation facility’’ means any

facility used in, available for use in, or designed

for use in, aid of air navigation, including landing

areas, lights, any apparatus or equipment for

disseminating weather information, for signaling,

for radio-directional finding, or for radio or other

electrical communication, and any other structure

or mechanism having a similar purpose for guiding

or controlling flight in the air or the landing and

takeoff of aircraft.

40a

Appendix D

(9) **‘Airport’’ means a landing area used

regularly by aircraft for receiving or discharging

passengers or cargo.

(10) ‘‘Air transportation’’ means interstate,

overseas, Or foreign air transportation or the

transportation of mail by aircraft.

(11) ‘‘All-cargo air service’? means—

(A) the carriage by aircraft of only (i)

property as a common carrier for compensation

or hire, or (ii) mail, or both, in commerce between

a place in any State of the United States, or the

District of Columbia, and a place in any other State

of the United States, or the District of Columbia;

or between places in the same State of the United

States through the airspace over any place outside

thereof; or between places in the same territory

or possession of the United States, or the District

of Columbia;

(B) the carriage by aircraft of only (i)

property as a common carrier for compensation

or hire, or (ii) mail, or both, in commerce between

a place in any State of the United States or District

of Columbia and any place in the Commonwealth

of Puerto Rico or the Virgin Islands or between

a place in the Commonwealth of Puerto Rico and

a place in the Virgin Islands;

whether such commerce moves wholly by

aircraft or partly by aircraft and partly by other

forms of transportation.

4la

Appendix D

(12) ‘‘Appliances’’ means instruments,

equipment, apparatus, parts, appurtenances, or

accessories, of whatever description, which are

used, or are capable of being or intended to be

used, in the navigation, operation, or control of

aircraft in flight (including parachutes and

including communication equipment and any other

mechanism or mechanisms installed in or attached

to aircraft during flight), and which are not a part

or parts of aircraft, aircraft engines, or propellers.

(13) ‘‘Board’’ means the Civil Aeronautics

Board.

(14) ‘‘Charter air carrier’’ means an air carrier

holding a certificate of public convenience and

necessity authorizing it to engage in charter air

transportation.

(15) ‘‘Charter air transportation’’ means

charter trips, including inclusive tour charter trips,

in air transportation, rendered pursuant to

authority conferred under this Act under

regulations prescribed by the Board.

(16) ‘*Citizen of the United States’’ means (a)

an individual who is a citizen of the United States

or ore of its possessions, or (b) a partnership of

which each member is such an individual, or (c)

a corporation or association created or organized

under the laws of the United States or of any State,

Territory, or possession of the United States, of

which the president and two-thirds or more of the

42a

Appendix D

board of directors and other managing officers

thereof are such individuals and in which at least

75 per centum of the voting interest is owned or

controlled by persons who are citizens of the

United States or of one of its possessions.

(17) ‘Civil aircraft’? means any aircraft other

than a public aircraft.

(18) ‘‘Civil arcraft of the United States’’

means any aircraft registered as provided in this

Act.

(19) ‘‘Conditional sale’? means (a) any

contract for the sale of an aircraft, aircraft engine,

propeller, appliance, or spare part under which

possession is delivered to the buyer and the

property is to vest in the buyer at a subsequent

time, upon the payment of part or all of the price,

or upon the performance of any other condition

or the happening of any contingency; or (b) any

contract for the bailment or leasing of an aircraft,

aircraft engine, propeller, appliance, or spare part,

by which the bailee or lessee contracts to pay as

compensation a sum substantially equivalent to the

value thereof, and by which it is agreed that the

bailee or lessee is bound to become, or has the

option of becoming, the owner thereof upon full

compliance with the terms of the contract. The

buyer, bailee, or lessee shall be deemed to be the

person by whom any such contract is made or

given.

(20) ‘‘Conveyance’’ means a bill of sale,

contract of conditional sale, mortgage, assignment

ippendix D

of mortgage, or other instrument affecting title to,

Or interest in, property

(21) **Federal airway’’ means a portion of the

navigable airspace of the United States designated

by the Administrator [Secretary of Transportation]

as a Federal airway

(22) *‘Foreign air carrier’’ means any person,

not a citizen of the United States, who undertakes

whether directly or indirectly or by lease or any

other arrangement, to engage in foreign air

transportation

(23) **Interstate air commerce,’ ‘‘overseas air

commerce,” ‘‘foreign air commerce,’ respectively,

mean the carriage by aircraft of persons or

property for compensation or hire, or the carriage

of mail by aircraft, or the operation or navigation

of aircraft in the conduct or furtherance of a

business or vocation, in commerce between,

respectively—

(a) a place in any State of the United

States, or the District of Columbia, and a place

in any other States of the United States, or the

District of Columbia; or between places in the same

State of the United States through the airspace over

any place outside thereof; or between places in the

same Territory or possession of the United States,

or the District of Columbia;

(b) a place in any State of the United

ere]

Appendix D

States, or the District of Columbia, and any place

in a Territory or possession of the United States:

or between a place in a Territory or possession

of the United States, and a place in any other

Territory or possession of the United States; and

place outside thereof; whether such commerce

moves wholly by aircraft or partly by aircraft and

partly by other forms of transportation.

(24) ‘“‘Interstate air transportation,’"’

“overseas air transportation,’’ and ‘‘foreign air

transportation,’’ respectively, mean the carriage

by aircraft of persons or property as a common

carrier for compensation or hire or the carriage

of mail by aircraft, in commerce between,

respectively —

(a) a place in any State of the United

States, or the District of Columbia, and a place

in any other States of the United States, or the

District of Columbia; or between places in the same

State of the United States through the airspace over

any place outside thereof; or between places in the

same Territory or possession of the United States,

or the District of Columbia;

(b) a place in any State of the United

States, or the District of Columbia, and any place

in a Territory or possession of the United States:

or between a place in a Territory or possession

ippendix D

of the United States, and a place in any othe!

Territory or possession of the United States; and

place outside thereof; whether such commerce

moves wholly by aircraft or partly by aircraft and

partly by other forms of transportation

(25) *‘Intrastate air carrier’’ means any citizen

of the United States who undertakes, whether

directly or indirectly or by a lease or any other

arrangement, to engage solely in intrastate ait

transportation

(26) ‘‘Intrastate air transportation’’ means the

carriage of persons or property as a common

carrier for compensation or hire, by turbojet-

powered aircraft capable of carrying thirty or more

persons, wholly within the same State of the United

States

(27) *‘Landing area’’ means any locality,

either of land or water, including airports and

intermediate landing fields, wijich is used, or

intended to be used, for the landing and take-ot!

of aircraft, whether or not facilities are provided

for the shelter, servicing, or repair of aircrait, o1

for receiving or discharging passengers or cargo

(28) **Mail’’ means United States mati and

foreign-transit mail

(29) ‘“‘Navigable airspace’’ means airspace

46a

ippendix D

above the minimum altitudes of flight prescribed

by regulations issued under this Act, and shall

include airspace needed to insure safety in take-

otf and landing of aircraft.

(30) **Navigation of aircraft’’ or ‘‘navigate

aircraft’’ includes the piloting of aircraft.

(3i) “‘Operation of aircraft’’ or ‘‘operate

aircratt’’ means the use of aircraft, for the purpose

of air navigation and includes the navigation of

aircraft. Any person who causes or authorizes the

operation of aircraft, whether with or without the

right of legal control (in the capacity uf owner,

lessee, or otherwise) of the aircraft, shall be deemed

to be engaged in the operation of aircraft within

the meaning of this Act.

(32) *‘Person’’ means any individual, firm,

copartnership, corporation, company, association,

joint-stock association, or body politic; and

includes any trustee, receiver, assignee, or other

similar representative thereof.

(33) **Propeller’’ includes all parts,

appurtenances, and accessories thereot.

(34) **Possessions of the United States’’

means (a) the Canal Zone, but nothing herein shall

impair or affect the jurisdiction which has

heretofore been, or may hereafter be, granted to

the President in respect of air navigation in the

Canal Zone; and (b) all other possessions of the

47a

Appendix D

United States. Where not otherwise distinctly

expressed or manifestly incompatible with the

intent thereof, references in this Act to possessions

of the United States shall be treated as also

referring to the Commonwealth of Puerto Rico.

(35) ‘‘Predatory’’ means any practice which

would constitute a violation of the antitrust laws

as set forth in the first section of the Clayton Act

(15 U.S.C. 12) [15 USCS § 12).

(36) ‘‘Public aircraft’? means an aircraft used

exclusively in the service of any government or of

any political subdivision thereof, including the

government of any State, Territory, or possession

of the United States, or the District of Columbia,

but not including any government-owned aircraft

engaged in carrying persons or property for

commercial purposes.

(37) ‘‘Spare parts’’ means parts,

appurtenances, and accessories of aircraft (other

than aircraft engines and propellers), of aircraft

engines (other than propellers), of propellers and

of appliances, maintained for installation or use

in an aircraft, aircraft engine, propeller, or

appliance, but which at the time are not installed

therein or attached thereto.

(38) The term ‘‘special aircraft jurisdiction of

the United States’’ includes—

(a) civil aircraft of the United States:

48a

Appendix D

(b) aircraft of the national defense forces

of the United States: z

(Cc) any other aircraft within the United

States;

(d) any other aircraft outside of the

United States—

(i) that has its next scheduled

destination or last point of departure in the United

States, if that aircraft next actually lands in the

United States; or

(ii) having ‘‘an offense’’, as defined

in the Convention for the Suppression of Unlawful

Seizure of Aircraft, committed aboard, if that

aircraft lands in the United States with the alleged

offender still aboard; and

(e) other aircraft leased without crew to

a lessee who has his principal place of business

in the United States, or if none, who has his

permanent residence in the United States:

while that aircraft is in flight, which is from

the moment when all external doors are closed

following embarkation until the moment when one

such door is opened for disembarkation or in the

case of a forced landing, until the competent

authorities take over the responsibility for the

aircraft and for the persons and property aboard.

49a

Appendix D

(39) ‘**State agency’’ means that department,

agency, officer, or other entity of a State

government which has been designated according

to State law as—

(A) the recipient of any notice required

under title IV of this Act [49 USCS §§ 1371 et

seq.] to be given to a State agency; or

(B) the representative of the State in any

matter about which the Board is required, under

such title IV, to consult with or consider the views

of a State agency.

(40) ‘‘Ticket agent’? means any person, not

an air carrier or a foreign air carrier, and not a

bona fide employee of an air carrier or foreign

air carrier, who, as principal or agent, sells or

offers for sale any air transportation, or negotiates

for, or holds himself out by solicitation,

advertisement, or otherwise as one who sells,

provides, furnishes, contracts or arranges for, such

transportation.

(41) ‘‘United States’’ means the several States,

the District of Columbia, and the several

Territories and possessions of the United States,

including the territorial waters and the overlying

airspace thereof.

(Aug. 23, 1958, P. L. 85-726, Title I, § 101, 72

Stat. 737; Sept. 5, 1961, P. L. 87-197, § 3, 75 Stat.

467; July 10, 1962, P. L. 87-528, § 1, 76 Stat. 143;

50a

Appendix D

Sept. 26, 1968, P. L. 90-514, § 1, 82 Stat. 867:

Oct. 14, 1970, P. L. 91-449, § 1, 84 Stat. 921; Aug.

5, 1974, P. L. 93-366, Title I, § 102, Title II,

§ 206, 88 Stat. 409, Nov. 9, 1977, P. L. 95-163,

§ 17(b), 91 Stat. 1286; Oct. 24, 1978, P. L. 95-504,

§ 2, 92 Stat. 1705.)

Federal Aviation Act of 1958, 49 U.S.C. § 1432

§ 1432. Airport operating certificates

(a)' Power to issue. The Administrator is

empowered to issue airport operating certificates

to airports serving air carriers certificated by the

Civil Aeronautics Board and to establish minimum

safety standards for the operation of such airports.

(b) Issuance; terms and conditions. Any person

desiring to operate an airport serving air carriers

certificated by the Civil Aeronautics Board may

file with the Administrator an application for an

airport operating certificate. If the Administrator

finds, after investigation, that such person is

properly and adequately equipped and able to

conduct a safe operation in accordance with the

requirements of this Act and the rules, regulations,

and standards prescribed thereunder, he shall issue

an airport operating certificate to each person.

Each airport operating certificate shall prescribe

such terms, conditions, and limitations as are

reasonably necessary to assure safety in air

transportation. Unless the Administrator

determines that it would be contrary to the public

Sla

Appendix D

interest, such terms, conditions, and limitations

Shall include but not be limited to terms,

conditions, and limitations relating to the operation

and maintenance of adequate safety equipment,

including firefighting and rescue equipment capable

of rapid access to any portion of the airport used

for the landing, takeoff, or surface maneuvering

of aircraft.

firefighting and rescue equipment. The

Administrator may exempt any operator of an air

Carrier airport enplaning annually less than one-

quarter of | percent of the total number of

passengers enplaned at all air carrier airports from

the requirements imposed by subsection (b) of this

section relating to firefighting and rescue

equipment if he finds that such requirements are,

or would be, unreasonably costly, burdensome,

or impractical.

(Aug. 23, 1958, P. L. 89-726, Title VI, § 612, as

added May 21, 1970, P. L. 91-258, Title I. Part

III, § S1(b)(1), 84 Stat. 234; Nov. 27, 1971, P.

L. 92-174, § 5(b), 85 Stat. 492; July 12, 1976, P.

L. 94-353, Title I, § 19{a), 90 Stat. 883.)

Federal Aviation Act of 1958, 49 U.S.C. Section 1432 Supp.

§ 1432. Airport operating certificates

(a) Power to issue. The Administrator is

empowered to issue airport operating certificates

to, and establish minimum safety standards for

52a

Appendix D

the operation of, airports that serve any scheduled

or unscheduled passenger operation of air carrier

aircraft designed for more than 30 passenger seats.

(b) Issuance; terms and conditions. Any person

desiring to Operate an airport which is described

in subsection (a) and which is required by the

Administrator by rule, to be certificated may file

with the Administrator an application for an

airport operating certificate. If the Administrator

finds, after investigation, that such person is

properly and adequately equipped and able to

conduct a safe operation in accordance with the

requirements of this Act and the rules, regulations,

and standards prescribed thereunder, he shall issue

an airport operating certificate to such person.

Each airport operating certificate shall prescribe

such terms, conditions, and limitations as are

reasonably necessary to assure safety in air

transportation. Unless the Administrator

determines that it would be contrary to the public

interest, such terms, conditions, and limitations

Shall include but not be limited to terms,

conditions, and limitations relating to (1) the

operation and maintenance of adequate safety

equipment, including firefighting and rescue

equipment capable of rapid access to any portion

of the airport used for the landing, takeoff, or

surface maneuvering of aircraft and (2) such

grooving or other friction treatment for primary

and secondary runways as the Secretary determines

to be necessary.

53a

Appendix D

firefighting and rescue equipment. The

Administrator may exempt any operator of an

airport described in subsection (a)(1) enplaning

annually less than one-quarter of 1 percent of the

total number of passengers enplaned at all air

carrier airports from the requirements imposed by

subsection (a)(1) from the requirements imposed

by subsection (b) of this section relating to

firefighting and rescue equipment if he finds that

such requirements are, or would be, unreasonably

costly, burdensome, or impractical

(As amended Sept. 3, 1982, P. L. 97-248, Title

V, §§ 524(f), 525(a)-(c), 96 Stat. 697.)

Noise Control Act of 1972, 49 U.S.C. § 1431

§ 1431. Control and abatement of aircraft noise

and sonic boom

(a) Definitions. 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.

(b) Consultations; standards; rules and

regulations; aircraft certificates.

S4a

Appendix D

(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 amend

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 authorized by this title

[49 USCS §§ 1421 et seq.]. No exemptionwith

respect to any standard or regulation under this

section may be granted under any provision of this

Act 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 transporation 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 603(a) of this Act [49

USCS § 1423(a)] 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

oe)

Appendix D

boom, consistent with the considerations listed in

subsection (d).

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 7(a) of the Noise

Control Act of 1972 [42 USCS § 4906], EPA shall

submit to the FAA proposed regulations to provide

such control and abatement of aircraft noise and

sonic boom (including control and abatemerit

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 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),

prescribe regulations (i) substantially as they were

submitted by EPA, or (ii) which are a modification

56a

Appendix D

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 shall include a detaiied

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 specigied 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

Appendix D

pursuant to section 102(2)C) of the National

Environmental Policy Act of 1969 [42 USCS

§ 4332(2)(C)] 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 102(2)C) [42 USCS § 4332(2\C)},

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

(d) Considerations determinative of standards,

rules, and regulations. In prescribing and amending

standards and regulations under this section, the

FAA shall —

58a

4ppendix D

(1) consider relevant available data relating

(O aircraft noise and sonic boom, including the

results of research, development, testing, and

evaluation activities conducted pursuant to this Act

and the Department of Transportation Act:

(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 transporation 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.

(e) Amendment, modification, suspension, or

revocation of certificate; notice and appeal rights.

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 shail have the same

notice and appeal rights as are contained in section

609 [49 USCS § 1429], and in any appeal to the

National Transportation Safety Board, the Board

S9a

ippendix D

may amend, modify, or reverse the order of the

FAA if i 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

(Aug. 23, 1958, P. L. 89-726, Title VI, § 611, as

added July 21, 1968, P. L. 90-411, § 1, 82 Stat

39S; Oct. 27, 1972, P. L. 92-574, § 7(b), 86 Stat

1239; Nov. 8, 1978, P. L. 95-609, § 3, 92 Star

30R0_)

Aviation Safety and Noise Abatement Act of 1979,

40 U.S.C. § 2101

2101. Definitions

For purposes of this subchapter —

(1) the term “‘airport’’ means any public-use

airport (as defined by section 2202(18) of this title)

(2) the term ‘‘airport operator’’ means, in the

case Of an airport serving air carriers certificated

by the Civil Aeronautics Board, any person holding

a valid certificate issued pursuant to section 1432

;

)

this title to Operate an airport, and in the case

any other airport, the person operating such

“Vii

airport: and

60a

Appendix D

Airport and Airway Improvement Act of 1982,

49 U.S.C. § 2201

§ 2201. Declarations of policy

(a) In general

The Congress hereby finds and declares that—

(1) the safe operation of the airport and

airway system will continue to be the highest

aviation priority;

(2) the continuation of airport and airway

improvement programs and more effective

management and utilization of the Nation’s airport

and airway system are required to meet the current

and projected growth of aviation and the

requirements of interstate commerce, the Postal

Service, and the national defense;

(3) this chapter should be administered in a

manner to provide adequate navigation aids and

airport facilities, including reliever airports and

reliever heliports, for points where scheduled

commercial air service is provided;

(4) this chapter should be administered in a

manner consistent with a comprehensive airspace

system plan to minimize the use of safety facilities,

with highest priority tor commercial service

airports, including but ot limited to, the goa! of

installing, operating, and maintaining, to the extent

6la

Appendix D

possible under available funds and given other

safety needs, a precision approach system, a

vertical visual guidance system, and a full approach

light system for each primary runway, grooving,

or friction treatment of all primary and secondary

runways, a nonprecision instrument approach for

all secondary runways, runway end identifier lights

on all runways that do not have an approach light

system, electronic or visual vertical guidance on

all runways, distance-to-go signs for each primary

and secondary runway, a surface movement radar

system at each category III airport, a taxiway

lighting and sign system, runway edge lighting and

marking, and radar approach coverage for all

airport terminal areas;

(5) all airport and airway programs should

be administered in a manner consistent with the

provisions of sections 1302 and 1303 of this title,

with due regard for the goals expressed therein of

fostering competition, preventing unfair methods

of competition in air transportation, maintaining

essential air transportation, and preventing unjust

and discriminatory practices;

(6) reliever airports make an important

contribution to the efficient operation of the

airport and airway system, and special emphasis

should be given to their development;

(7) cargo hub airports play a critical role in

the movement of commerce through the airport

and airway system and appropriate provisions

62a

Appendix D

should be made to facilitate the development and

enhancement of such airports;

(8) aviation facilities should be constructed

and operated with due regard to minimizing current

and projected noise impacts on nearby

communities;

(9) the Federal administrative requirements

placed upon airport sponsors can be reduced and

simplified through the use of a single project

application to cover all airport improvement

projects contained in the airport’s annual

expenditure program;

(10) it is in the national interest to develop

in metropolitan areas an integrated system of

airports designed to provide expeditious access and

maximum safety;

(11) airport construction and improvement

projects which increase the capacity of facilities

to accommodate passenger and cargo traffic,

thereby increasing safety and efficiency and

reducing delays, should be undertaken to the

maximum feasible extent;

(12) it is in the national interest to ensure that

nonaviation usage of navigable airspace be

accommodated but not aliowed to decrease the

safety and capacity of the airspace and airport

system; and

63a

Appendix D

(13) artificial restrictions on airport capacity

are not in the public interest and should not be

imposed to alleviate air traffic delays unless other

reasonably available and less burdensome

alternatives have first been attempted.

(b) Transportation planning

It is declared to be in the national interest to

encourage and promote the development of

transportation systems embracing various modes

of transportation in a manner that will serve the

States and local communities efficiently and

effectively. To accomplish this objective, the

Secretary shall cooperate with State and local

officials in the development of airport plans and

programs which are formulated on the basis of

overall transportation needs and coordinated with

other transportation planning with due

consideration to comprehensive long-range land-

use and access plans and overall social, economic,

environmental, system performance, and energy

conservation goals and objectives. The process shall

be continuing, cooperative, and comprehensive to

the degree appropriate based on the complexity

of the transportation problems.

§ 2202. Definitions

(a) In general

As used in this chapter—

64a

Appendix D

(1) ‘*Airport’’ (A) means any area of land or

water which is used, or intended for use, for the

landing and takeoff of aircraft, and any

appurtenant areas which are used, or intended for

use, for airport buildings or other airport facilities

or rights-of-way, together with all airport buildings

and facilities located thereon; and (B) includes any

heliport.

(2) *‘Airport development’’ means any of the

following activities, if undertaken by the sponsor,

owner or operator of a public-use airport:

(A) any work involved in constructing,

reconstructing, repairing, Or improving a public-

use airport or portion thereof, including—

(i) the removal, lowering,

relocation, and marking and lighting of airport

hazzards; and

(ii) the preparation of pians and

specifications, including field investigations

incidental thereto;

(B) any acquisitions or installation at or

by a public-use airport of—

(i) navigation and other aids

(including, but not limited to, precision approach

systems) used by aircraft for landing at or taking

off from such airport, including any necessary site

preparation thereby required;

6Sa

Appendix D

(ii) safety or security equipment

required by the Secretary by rule or regulation for

the safety or security of persons and property at

such airport, or specifically approved by the

Secretary as contributing significantly to the safety

or security of persons and property at such airport;

(iii) snow removal equipment;

(iv) aviation-related weather

reporting equipment;

(v) equipment to measure runway

surface friction; or

(vi) fire fighting and rescue

equipment at any airport which serves scheduled

passenger operations of air carrier airport designed

for more than 20 passenger seats; and

interest therein, or of any easement through or

other interest in airspace, including land for future

airport development, which is necessary to permit

any airport development described in subparagraph

(A) or (B) of this paragraph or to remove, mitigate,

prevent, or limit t!.2 establishment of airport

hazards.

(3) ‘‘Airport hazard’’ means any structure or

object of natural growth located on or in the

vicinity of a public-use airport, or any use of land

near such an airport, which obstructs the airspace

66a

Appendix D

required for the flight of aircraft in landing or

taking off at such airport or is otherwise hazardous

to such landing or taking off of aircraft.

(4) ‘‘Airport planning’’ means planning as

defined by such regulations as the Secretary shall

prescribe, and includes integrated airport system

planning.

(S) ‘‘Commercial service airport’? means a

public airport which is determined by the Secretary

to enplane annually 2,500 or more passengers and

received scheduled passenger service of aircraft.

(10) ‘‘Passengers enplaned’’ means domestic,

territorial, and international revenue passenger

enplanements in the States in scheduled and

nonscheduled service of aircraft in intrastate,

interstate, and foreign commerce as shall be

determined by the Secretary pursuant to such

regulations as the Secretary may prescribe and

includes passengers on board international flights

which transit an airport located in the 48

contiguous States for nontraffic purposes.

(12) ‘*Primary airport’? means a commercial

service airport which is determined by the Secretary

to have more than 10,000 passengers enplaned

annually.

67a

Appendix D

(17) ‘‘Public airport’? means any airport

which is used or to be used for public purposes,

under the control of a public agency, the landing

area Of which is publicly owned.

(18) ‘‘Public-use airport’’ means—

(A) any public airport,

(B) any privately owned reliever aircraft,

and

designated by the Secretary as having the function

of relieving congestion at a commercial service

airport and providing more general aviation access

to the overall community.

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.