Petition for Writ of Certiorari — Hudson v. United States

Supreme Court brief1968

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isa COURT. | Oo &

nthe ico

Supreme Court uf the Hnited States ¢

OcToBER TeeM,’ 1968 ©

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- * Ye

MARY A. LOSCHI, MARGARET CIANCI, MARY os,

- PASCUCCI, JAMES A. MIRAGLIA, PHILENA

McWHINNIE, SAMUEL BAPTISTA, |

MARY C. OLIVER,

PETITIONERS, _

o ov Vv 2

MASSACHU SETTS PORT AUTHORITY,

RESPONDENT. |

PETITION I FOR WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT OF THE

COMMONWEALTH OF MASSACHUSETTS ~—

Vincent J. CELESTE ©

\ Attorney for Petitioners

53 State Street ‘ee

Boston, Massachusetts :

e . *

Blanchard Press, Inc., Boston, Mass. — Law Printers

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INDEX: Son a

‘Opinion Below ..:......... ee 2%

. Sapiediction “5.865.727. Selita 6 aii 4 See

Questions Presented ........°......... Sol aaa

' Statement of the,Case .............. Lea er Maatirnr 3

Reasons for Granting sat Writ g...... TTR: |

UN ns on > ees gas SE ae eae

Appendix A Fa ree oe AORELED tite

Opinion below ........ Lie iw vt gE A, Bales i Se

_ Appendix B a UR Siig Be

_ Final Decree ...... Pia cs RRTe ie Sac velLys eae _@

\ Appendix C a aes 9.1 Se | ox,

_ Constitutional and Sietutory Provisions Involved ot eee,

ies SL, BONE. BOY onsen cs wee ss yecce ee

\98 USC. § 1967-(8) 0. Sao ar wipe 31

ieee i ee 31

44.C.P-R.4 11.31 ......:.. ye cel Me ve ..

Ma OPE, 4 098. og os Se. 32

, dilase.. Acts, 1968; ¢. 410.270. QE SS.

: : ; Ne Ee

TABLE oF CITATIONS Bae cee es: |

‘ Cases ‘e eS Ly

ee reg cay : Ses \ ‘Y tif

i> ars Lines Pilots ‘Ass’ nV. Geiseie: 276 F. 2d 892 (nd

Cir. 1960); cert. denied 366 U.S. 962 ..... er os ates 16

American Aty Transport, Inc. -v. Civil Aeronautics ee 7

. Board, 98 F. Supp. 661 (D. Ct. D.C.) ; 344 11.8.4. 2 ee JS

- Barrows v. Jackson, 346 U:S. 249:.........0002.... ef:

Colorado Anti-Discrimination Comm’n v. Continental eA !

ee MN, MIR MOO, PEC) acs vse F% cn tye fe 14°

Griggs v: Allegheny County,-369 U.S. 84... 8, HB, 10:

Griswold v. Connecticut, 381 U.S..479 ........... Fon ae coke

Londoner v. City and County of Denver, 210 U. S. 373.. 16 B-

"ii \ : a

‘Loschi v. Masiuckuastis Port. Authority, 1968. iis.

Adv. Sh: 437, 234°N.E- 2d 901... bet eases Sey ek 2, 3, 5

‘ McDonald v. United States, 385 US. 451 °......... 9.

Pierce v. Society of Sistérs, 268 U.S. ES adetri®

United States-v. Causby, 328 U. B. 266 buctvlivecs. 29:@:30

"Constitutional Provision And Statutes

U.S. Const., Amend. XIV ces Pr a es ey cae 3

Reare Se SE... i ee ees es eeu: Seals £B

OP ee te en ec ee tt Hiden 2

Mass. Acts, 1963, c. 410 ................ coe 5; 13, 17

RS hs ee ig ee ee a ee -12

49 US.C..§ a (1) - sivres Siihi ui # duaibitath 4, 12

M eielionlionn’

14 C.F.R. § 11.29 ..... i a ree ee 35 i 6

MORE. 4.1101 .........:... ghee Re gs Oe Pe 9 '; 15, 16

14 C.F.R. § 11.33 ........ Bet) pee LOOT Awted, ® 25, 16

Davis, Administrative Law Treatise, ‘ Fae a ec a

Page |

| Bupreme Court at ie United States

QcrosER ‘Trrm, 1968 2 age ‘

3 No.

\ Yo ees 3 eG:

J t

MARY A. LOSCHI, MARGARET GIANCI, MARY

- PASCUCCI, JAMES A. MIRAGLIA, PHILENA:

McWHINNIE, SAMUEL BAPTISTA, ,

MARY C. OLIVER,

| PETITIONERS, .

| MASSACHUSETTS. PORT AUTHORITY,

RESPONDENT.

' “PETITION FOR WRIT OF CERTIORARI

TO. THE SUPREME JUDICIAL COURT OF THE .

-” COMMONWEALTH OF MASSACHUSETTS

To the Honorable, the Chief Justice of ihe United, States

and the Associate Justices of the Supreme Court of

the Umited’ States: :

Petitioners, comprising ( 1) the owner-occupants of resi-

dential property that constituted part of the land-taken by

the respondent for an airport runway extension and ‘clear

zone?’ therefor, and ( 2) the owner-occupants of residential _ __

Sar!

property that will be i in imnemidisite seiebnliy to the runway ©

\ as extended, petition this Court to issue a writ of certiorari - :

**\to review the decree of the Massachusetts Supreme Judicial’

Court in Loschi é others.v. Massachusetts Port: Authority,

1968. Mass. Adv. Sh. 437, 234 N.E. 2d 901, upholding: the --

.< taking as to the first class ‘of. petitioners, and holding that —

neither class of petitioners have standing to contest tHfe

ie es of the rest of the taking.

_ Qpinion Below )

The opinion of ik Massachusetts. court is meen ops.

hereto as | Appendix A, p. 18, infra.

J urisdiction

‘The opinion of the Massuchusctte’ court was filed on

’ March 11, 1968, ‘and the final decree after. ste entered —

~ in the Superior Court of Massachusetts on March 21, 1968.

All copy of the decree is A goaae hereto as Appendix B,.

p: 29, tafra. . .

This court has jurisdiction to review thé ju gement of.

~ the Massachusetts Supreme Judicial Court by writ of cer- -

” tiorari. under se terra of 28 U.S.C. § 1257 We.

Questions Presented.

@) " Whether; under the diet ‘process clause of the Lath =

‘psteesigiouad the gwner-occupants of residential properties

_ that abut property taken for, an airport runway extension |

have standing to challenge the validity of intervening tak-. . -

ings that will bring the runway and its ‘‘clear zone’”’ into — -

immediate proximity with’ their properties ‘and result in‘a

taking of. ax a ‘under the doctrine of _Umted

rrr fos Fe

: is i” .

States » v. _Cousby, 328. US. sad “and Griggs v. Allegheny

, County, 369 U.S. 84. nue

(2) -. Whether, ‘tation the lian process clause of. the 14th

‘Amendment,.the owner-occupants of tesidential properties

taken for an ‘airport runway extension, -haye standing to

‘challenge ‘the validity of intervening takings,. where the

taking of their properties would not be required by federal

safety. standards if the intervening takings are invalid:

(3) Whether, (a) as the state court held,.a grant of ~

money by the Federal Aviation Agency for an airport. run-*

way extension upon application ‘by an airport. authority, :

ipso facto constitutes the establishment of a federal safety.

: standard, and if so, (b), whether. persons whose. properties,

- the taking of which is thereby justified, have been deni d

“their right, under the due process clause of the 14th Amend-

'. ment, to be heard before the federal rule-making agency : o

on n the promulgation of such standgrd.

Statement of The Cao

The petitioners are ainaniaidiaail of properties in a.

long established, thickly settled residential area of East |

Boston, Massachusetts. (R.. 33). Their properties lie gen-

erally north-westerly of Runway 15-33 of the General Ed-

-ward Lawrence Logan International Airport. (R. 32, 33).

Title to:the airport and operation and. control thereof are

‘vested in the Massachusetts Port ey the respond-

ent. (R. 32).° | ’ |

Runway 15-33, which is utilized. for fnatrminens handiisg

- of turbo-jet aircraft (R. 33), has been at all times pertinent

- to this action, 7,873 feet ‘in length. (R. 83). The axis of the

runway is almost exactly ona line with, and the west end of |

-its:present clear zone not more than 1600 feet from the most

‘remote of, petitioners’ propestios: (1968 Resta As S. at 439;

S, do ciecumseecunuas Sys)

y y

Ini the years 1962 and 1963, and earlier, the respondent

pursued studies bearing upon an extension of Runway ‘15-

. 33 to 10,000: feet in length. The proposed extension con-

‘templated an additional paved portion of 2,127 feet. (R. 35).

In May, 1963 the respondent. submitted to the Federal

Aviation Agency a project application for the extension.

(R. 41). By 49 U.S.C. § 1108(d)(1) the administra-

tor may approve a project application only upok condition

' that the applicant ‘‘have legal authority to engage in ‘the

. development as proposed”’ and ‘‘hold good title’’ to the

: site. The respondent gave assurance, in its written ‘applica-

tion, that it would acquire title to certain designated prop-

erties, which are those of the petitioners Loschi, Cianci and

Pascucci. (R. 42). And in June, 1963, a grant offer was

made by the F’.A.A. to the respondent and accepted by it.

(R. 42, 43). eis °

The premises of all petitioners a are. more than 2, 500 feet

westerly of the existing 7,873 foot runway and are not

within the ‘‘clear zone’’ required by any federal regulation

applicable to the runway at its present length. (R. 45). No

property of any of the petitioners, was required or neces-

sary, therefor, for a runway clear gone of 2,500 feet, for

runway 15-33 at its present length. (R. 41). If extended to

- 10,000 feet in accordance with the proposal, however, the

properties of the petitioners Loschi, Cianci and Pascucci,

will all be within the required clear zone. The property of

other petitioners on the same street will not, (R. 33, 45-46),

* but will abut or be in immediate proximity to it.

- In September, 1963, the respondent took by an express

atin of eminent domain the properties of the petitioners

Loschi, Cianci and Pascucci. (R. 4).. No. property of any ..

other petitioner was made ‘subject to any express. order of”

Tf runway 15-33 is extended to 10,000 feet as proposed, —

the Loschi, Cianci and Pascucci properties will mark the

western terminus of the runway ‘‘clear zone’’. Intermedi-

ate between these properties and the present ‘runway, are’

other properties, constituting a portion of Boston Harbor,

and Wood Island Memorial Park. (1968 Mass. Adv. Sh. at

439, 234 N.E. 2d at 903). Petitioners’ properties abut the

latter. (Ibid.) The west end of the runway. itself as ex-

tended would enter Wood Island Memorial Park. (Ibid.) °

All petitioners. brought suit in the Superior Court of

Massachusetts seeking a declaratory judgment of the in-

validity of the proposed extension, and raising three prin-

cipal challenges: (1) that the taking of land lying westerly

of the present property line of the airport was in violation

of Mass. Acts 1963, c. 410, (appended hereto as a part of

Appendix ©. p. 31, infra), passed with: an emergency: -

preamble and effective May 16, 1963, and which provided

that the Authority ‘‘shall not, except for the purpose of

protecting the aerial approaches to runways in accordance

with applicable federa) standards, meeting runway clear

' zone requirement of the federal government, .. . or meeting

other air safety requirements of the federal government,

acquire by the exercige of the power of eminent domain for

airport purposes any land... westerly of the present

property line of the’... . (alirport’’; (2) that the extension

through a portion of Boston Harbor was in violation of the

hgrbor line established in 1939; and (3) that the destruction _

of trees and other measures taken by respondent in respect

to Wood Island Memorial Park was in violation of Mass.

Acts 1949, c. 431 placing the park within the jurisdiction and

control of the Metrogplitan District Commission, a state

agency, and i in violation of a requirement that all warrants

for contract and awards with-respect to the park be ap-

proved by the governor and governor’s council.

The harbor line, now changed by Mass. Acts 1966, ec. 733, .

is no longer in isspe in the case.

The respondent demurred on four grounds, the first of -

Ads 6

which was ‘‘that none of, the persons named as a pegged

in the bill or petition has any merwred ‘in equity .

question the legality of this respondent?s entry upon or use ©

of Wood Island Park, so called.’’ (R. 6). we

The case was referred to a master (R. 31) who made find-

ings of fact. Ari interlocutory decree, sustaining the re-

spondent’s demurrer, inter alia, on the first ground as-

_ gerted, and a final decree dismissing the complaint, were

entered and affirmed by the Supreme Judicial Court. (1968

Mass. Adv. Sh. at 445, N.E. 2d at 907). |

The opinion of the court held: (1) that all petitioners

were without standing to seek equitable relief concerning

Wood Island Park, (1968 Mass. Adv. Sh. at 443-444, 234

N.E. 2d at 906); and (2), reversing the master’s finding

‘‘that neither said sponsorship [by the F.A.A.], nor the/

said grant agreement arising pursuant to said sponsorship,

-became ‘applicable federal standards’ as set forth in Chap-

ter 410 of the Acts of 1963’’ (R. 58) as to the petitioners

(Loschi, Cidnci and Pascucci) whose land was ‘subject to

the express order of taking, that : ne:

**[t)}he requirements of the 1963 grant agreement that

the land be acquired, taken with the project of extend-

ing the runway bring the takings ordered on August 8,

1963, within the exceptions to the pfohibitions of St. .

1963, ¢. 410.’ ”

(1968 Mass. Adv. Sh. ai 443, 234 N.E. 2d.at 906), that is to

radar. the 1963 grant agreement constituted a federal

dard. ‘ 8, 3d

Reasons For Granting The Writ

Tus Case Presents Important QuEsTIONS oF CONSTITU-

TIONAL Law Nor Previousty Decwrep By tHE Court.

eg ett

The first issue concerns petitioners Miraglia, McWhinnie,

Baptista and Oliver, as they art owner-occupants of proper--

ties abutting property taken for a runway extension.

_ The extension will bring the runway itself into close

proximity to their residential properties, and the runway

‘‘clear zone’’ into immediate prgximity with their proper-

ties. -

One enetion sought to be reviewed as to Bes is, there-

fore, whether 14th Amendment due process requires that

those who will become victims of a taking under the doctrine

of United States v. Causby, 328 U.S. 256 and Griggs v.

Allegheny: County, 369 U.S. 84, have standing to wee

the validity of the intervening takings. _

In United States v. Causby, 328 U.S. 256, the Court held

that the United States, by low flights of its military planes

over a chicken farm constituted a taling in a constitutional

sense of an easement for which compensation had to be

paid wheré such flights made the property unusable for

their purposes. And in Griggs v. Allegheny County, 369

U.S. 84, the Court extended the holding in Causby to a muni-.

cipal airport by holding that a county. which owned and

maintained the Greater Pittsburgh Airport had taken- an

air easement over petitioner’ 8 property. The -property: in-

volved there was 3,250 feet ‘from the end. of a runway and

close under the ‘‘approach area’’ of low landing and _—_

flights of commercial aircraft.

If the intervening takings in the instant case are valid a:

Causby and Griggs situation will arise with respect to these

° . .

Rue : |

petitioners. The petitioners’, Miraglia, McWhinnie, Bap-

tista and Oliver, properties are on Neptune Road in East

Boston. Property of three of their neighbors, (Loschi,

” Cianci and Pascucci) also on Neptune Road and abutting

property in Wood Island Memorial Park was expressly

taken by an order of the respondent in August, 1963. As

relevant here, the, petitioners have sought to assert the ,

invalidity of the taking of the Wood Island Park property.

If that intervening taking is valid, and the runway extended.

as proposed, the Miraglia, McWhinnie, Baptista and Oliver

properties will be, serially, next adjacerit to the 2500 ‘‘clear

zone’’ from the end of the runway as extended.

That runway is utilized for instrument landing of turbo-

' jet aircraft, and, as the master also found, ‘‘the use of said .

runway 15-33, as presently constructed, for turbo-jet air-

craft, has caused the enjoyment of the said. premises of ..-——

these petitioners for the purposes of habitation to be im-

_ paired seriously.’’ (R. 44) (emphasis supplied).

The -extension. of thewrunway to 10,000 feet from its

present-7,883'feet would’place its end 2,127 feet closer to

each of petitioners’ properties, and place’ them from idi-

rectly abutting to within 1600 feet of the clear zone. See

map, 1968 Mass. Adv. Sh. at 439, 234 N.E. 2d at 903, and

directly and immediately under the approach path of the

turbo-jet aircraft involved here. If the intervening express

* takings are valid and the runway is extended into Wood

_ Island: Memorial Park as contemplated, unquestionably a

Causby and Griggs situation will arise as to these peti-

—

of whether they have standing to seek to prevent a

by and Griggs situation from arising as to them, that

s, whether they have standing to challenge the taking of

* nae

property other than their own when the restlt of such tak-

ing will be to render theirfhomes completely uninhabitable.

Petitioners contend that they have a direct and inimedi-

ate, personal and pecuniary interest in challenging the in-

termediate taking, that they have a right to do so under the

14th Amendment to the United States Constitution’ and

that they have been deprived Of that right.

Be . This is not a case where petitioners are seeking to assert

* third parties’ rights. Pierce v. Society of Sisters, 268 U.S.

eee 510, 535-536 ; McDonald v. United States, 335 U.S..451, 456; |

i? Barrows v. Jackson, 346 U.S. 249, 257-260 (and saaks cited) ;° :

' Griswold ‘v. Connecticut, 381 U.S. 479,481. As in each of

these cases, petitioners are seeking to vindicate rights of

their own, here to protect their property from a Causby-

challenge the legality of the intervening taking.

i= _. of Wood Island Memorial Park, the opinion of the Massa-

chusetts court, in-denying them standing, remitted them to

proper public office to protect park land by Will in equity fa)

the Attorney General. [citing cases].’’ (1968 Mass. A.S. at

reasons :

arst, the value of their own properties derives in each

in immediate’ proximity to a recreation area. _

The destruction of the park results in an impairment

of ‘the value ‘of their properties. And if their properties

are to be taken, either expressly, or, as seems more likely,

beforehand. by the destruction of the park. of!

Griggs type taking and to do so they must have standing to

With respect to petitioners’ right to challenge the taking ©

seeking relief by applying to the Attorney General. ‘‘The-

instance in part from their being abutters to a park, ie., ~

under the doctrine of the Causby and Griggs cases, the -

value at the time of that taking will have been reduced -

444, 234 N.E. 2d at 906). But petitioners’ interest. in. the _

illegal intervening taking was not'simply that of the public-

in geheral i in the preservation of a recreation area, for two -

oF ; -

Secondly and more snisiastiiatiy ahi ought not

to be foreclosed merely because the intervening land taken

was a recreational area in which the public generally had

_ an interest. The interest which petitioners assert is one

peculiar to them: the pre-taking diminution of the value,

of their property from the encroachment onto nearby land |

of the airport. And that interest would be the same if

the illegally taken property was a factory or a warehouse.

-That it is a public park-is fortuitous, and that fortuity

ought: not-to remit them to a remedy designed only to:

et ~Tedress the public wrong without taking into account the

‘peculiar injury petitioners:are about to suffer. ;

Petifioners are, in short; asserting an ‘immediate ——_

book interest.

The question is one that ought to be decided rea this

court. Causby and Griggs. established -that there may be

- g taking by frequent and noisy low level flights over one’s

property. They recognized that a runway on one’s door-

step, or a glidepath immediately over one’s chimney con-

stitutes harm — a serious interference with a person’s en-

_joyment of his property.. The issue here.is whether per- ~

_ sons imminently threatened with such harm have the right _

to seek to prevent it from arising, by asserting that the

takings which would’ bring the airport to their doorstep

are illegal. Causby and Griggs established the remedy of ©

“ damages for the taking. But persons ought not to be com- .

pelled to-sit idly by while the harm imypends. They ‘should °

- have standing to assert that intervening takings which,

legal, will visit the harm on them, are in fact illegal. They

should have the right to show in a court of law the illegality

of the intervening takings and prevent the destrnetion of . (

their properties. >

With respect to their. standing to challenge the inter-__

_vening taking: the petitioners Liosehi, Cianci and Paseucci

are in a somewhat different position. They are the owners

of properties specifically taken by an express order of the

Authority (August of 1963), as distinguished from a

‘Causby and Griggs type taking. If the runway is extended,

their property will constitute a portion of the ‘‘clear zone’’

of the runway as extended, and they will obviously no

longer have any concern with the noise and a of

- planes overhead. |

But the validity of the express takings of their prop- .

erties depends upon whether they are necessary to comply

with federal safety standards, and they would. be if, and

only if, the extension into. Wood can Memorial ualts is,

valid.

The Supreme Judicial @ourt held that the exeftion j in

c. 410 permitting westward extension only to meeting fed-

‘eral safety standards was not ‘fconfined . . . to existing

runways’’ but applied to ‘‘new or extended ronnent, (1968.

Mass. Adv. Sh. at 443, 234 N.E. 2d at 906). And admittedly

‘these petitioners’ properties would be within the ‘‘clear

we.

zone’? required by federal standards if the Fenway were,

éxtoniea as contemplated. :

But on the issue of the validity of the Wood Idend

Memorial Park taking for such. extension, the Supreme

Judicial Court held that these petitioners too had no, stand-

ing to be heard.

The validity of the taking of these tities) proper-

ties. hinges, therefore, on the validity of the intervening .

takirigs and on that focal issue, the state, court held peti- .

' “tioners had no standing. If the respondent could not legally. ~~

take Wood Island Memorial Park and complete, the exten- |

sion westward, it would not be necessary to take petitioners’

properties to meet federal safety standards.

The question, then, as to petitioners Loschi,:Cianci and —

Pascucei, is whether the. due process clause of the 14th

Amendment gives them the right. to: challenge the legality

of the takings which, df legal, validate the taking of their —

own properties. ‘If the intervening takings are — 3°

; vi akiage would necessarily fall with them. :

er ee ee ee eee

S a

2 ee Sh ITT.

/ A. Related to the issue of standing, there is an im-

‘portant federal question raised, relating to what constitutes |

a federal safety standard, particularly, whether a. grant.

agreement between the F.A.A. and an airport authority ——

_ constitutes ipso facto such a standard.° This question relates

only to those petitioners (Loschi, Cranci, and Pascucci)

_ whose properties were subject to the express order of taking

of August, 1963. The decision of the: Massachusetts Su-

preme Judicial Court held in substance the taking of their

. properties to have been required by federal safety stand- .

ards, and that-the grant miyconmnett constituted a federal

standard. 7

_ ‘The Federal Airport Act, as iianiia (49 U.S. on § 1101

et seq.) provides, in part, that approval of a project—and

the extension of a runway is a‘‘‘project’’ within the mean-

ing of the’ act. See §1101(3)(5)—shall be given by the

Administrator of the Federal Aviation Agency only upon

. eondition; inter alia, that the airport authority making the

* application ‘‘have legal authority to engage in the airpert

is development as proposed : . .”’ and ‘‘holds good title, satis-

factory to the Administrator, to thé landing area of such

airport or the site therefor, or gives assurance ‘satisfactory

to the Administrator that ‘such title will be. — »» 49

U.S.C. § eit duce :

y ' " :

i a ° .

: mt “? .

- .

any extent’ whatever. "

When pom wanton ‘were jel Mass. Stat 1963 ra

410, in turn, prohibited the Authority. from extending west: -

“ ward, -“‘except for the purpose of protecting the aerial

- approaches to runways in accordance with applicable fed-

eral standards, meeting runway clear zone requirements of

| > the federal government . ... or meeting ater air safety

‘requirements of the federal government . .

-At-the time of the taking, in August,’ 1963, no . federal

standard required the extension of the runway westward to

As the master found and the heneiin J ndicial Court did

* not question, (1) petitioners’ premises are all. more than

-2,500 feet westerly of the present 7,873 foot runway and >

are not within the ‘‘clear zone’’ required by any applicable

regulations; (2) none of the structures on their premises’

~ Fise to the slope requirements for an ‘approach area to the

present runway; and (3) there was no obligation on the :

part of the airport authority to extend the runway westerly. -

In short; the end result of this federal-state-federal

renvoi is that, unless the grant agreement itself constituted-

a federal safety standard, no federal standard aacesaie the

taking of petitioners’ properties.

The. question then became whether the pain agreement

itself, ie. F.A.A. approval of the. airport’s request for

funds to conibeme the runway extension, constituted, ipso

facto, the establishment of a federal safety standard. The

Supreme Judicial Court held that itdid.. ~ 2

—_ grant oe said the court,

‘aboiien that de purpose of the Neptune Road land ac-

quisition was to protect the aerial approach to Run-

_ way 15-33 from the northwest’... The requirements —

of the .. . agreement that the land be acquired, taken

with. the project of. one the sussa de bere the

bo tte, QUIRK BE ty j oe es Boy ;. ae ae. §

takings. e , within the, exceptions to. the — eS

' of - 1968 c. 410.’

- 1968 Mass. Adv. Sh. me 234 N:E. 2d at 906.

State. law in this instance def@rs to federal law: Tadeed

- if federal law required a particular extension to facilitate

interstate commerce, state law could not prevent it. See

Colorado Anti-Discrimination Comm’n v. Continental Air

Lines, Inc., 372 U: S. 714, 723-724. The Massachusetts |

statute, therefore, merely recognizes the supremacy of fed-—

eral law in this commercial matter.. Extension westward

‘is permitted by state law only if ‘required by applicable

' federal standards, that i is, by standards which have as their

constitutional basis the interstate commerce clause. The

Supreme Judicial: Court held that the grant of money upon

application by: the Authority constituted, ipso facto, a

federal standard, and permitted the westward extension.

It held, in‘effect, that westward extension was Pequired by.

federal law. i a

Conversely, federal lee, title 49 of the Uz S. Code, con- —

ditions the grant of money upon the legality ofthe proj-..

ect under state law. The grant is not simply a matter of

an agreement between the FA.A. and the airport authority ;

- it: becomes a matter in’ which these petitioners have a

direct and immediate interest once it is held, as the Su-

preme Judicial Court did, that. the agreement constitutes -

a federal safety standard which ‘sanctions the. takings of

their properties. The petitioners would have had no: -stand-

: '.. ing, of. course, to. question the propriety of the grant agree-. +

. ment. But once the grant agreement is held to constitute |

a standard justifying: i injury to them, they: have the right.

to be’heard, and in this court if necessary. "Pie event which

_ ‘gave them theix right to be heard was the decision of the’ ~_

' Massachusetts court. They cannot now go before the.

F.A.A.. as interested parties to be heard on this “raling, |

: 9 - , . f >

. .

=e 4 é ry K, Re . ‘ . r 4

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’. Indeed the F.A.A. did not establish it. The Massachusetts —

court: did; and their decision establishes, at least as to

these petitipners, a federal standard just as cera as. if it,

were promulgated by the F.A.<A; - :

The matter does not become one ex isalvety of state. io

because only westward extension is prohibited by the stat-

ute. It is only westward | of: the. airport that there are

habitated areas; the airport is otherwise surrounded by

.» the sea. Nor does the matter become one exclusively of

state law because any extension in habitated areas is pro-.

hibited, or because any extension might have‘ been pro- —

hibited. It is not, in short, exclusively a state law matter

because a state law curbs expansion. Federal law permits.

expansion only if legal under state law. Massachusetts

_. -here, by construing a state statute, also construed federal

law as to. what constitutes a federal safety standard.

That federal question was wrongly decided by the state .

’ court. A grant. of money upon an application by an autkor-

ity does not by. itself. establish a federal standard. The ar-

' . rangement between the F.A.A. and the airport here did not

purport to be a federal standard. None of the indicia of

the promulgation of a standard—notice, saneins, Publica-

‘ tion—-obtained with respect to this grant. °

‘ With respect to rule-making the F:A.A. tiles eos

provide for public notice and‘entitlement of each interested

_ person to be heard. Sec. 11.29-of its rules, 14 C.F-R., Part

11, provides for general notice of a proposed rulé to be .

published in the Federal-Register. Under secs. 11.31 and —

11.33, 14 ©.F.R. Part 11, each interested person’ is entitl

to participate in ‘rule-making ‘proceedings by submitting

‘written information, views, or arguments, and, if it: serves

the purpose of a/particular proceeding, may be allowed to.

make oral arguments, participate. in conferences with

Administrator, and appear at informal hearings.

The decision of: the Supreme J ddicial. Court on this

- &.

notes that the master’s report was ‘‘more restrictive in.

its discussion’ of negotiations for. the runway extension

than would have been helpful’’ (1968 Mass. Adv. Sh. at

442, 234 N.E. 2d at 905, butygphe fact is that. the evidence

reported was all there was on the point. But even had

the negotiations been extensive, they would still not have’

consfuted the establishment of a federal stafdard, or .

substituted for the regular methods of promulgating stan-

dards, on which these petitioners would have had the right

‘to be heard.

‘B. The Supreme Judicial Court of Massachusetts does

not make rules for the Federal Aviation Agency. Nor

does it makg,adjudicative decisions for it. Only the F.A.A.

itself can de these, and only if and after the sth ts oe

administrative process has. been followed. ~

. » If a grant agreement itself creates a federal udey stan-

dard, then petitioners, the taking. of whose property is

justified by that standard, have a right to be heard_gn its

promulgation. 5¢U.8.C. § 1903; 14 C.F.R. §§ 11.29, 11,31,

11.33. If the issue is conceived as involving an adjudica- -—

tive procedure, that .is to say, involving the question

whgther petitioners properties are such as may be taken

to satisfy a federal standard, the same right to be heard

obtains. 5 U.S.C. §§ 1004-1006. As interested and affected

* parties, that is their federal right. See Londoner v. City

- ‘and County of Denver, 210 U.S. 373, 386; American Air

Transport, Inc. v. Civil Aeronautics Board, 98 F. Supp.

660: (D. Ct. D.C.) ; 344 U.S. 4; Air Line- Pilots Ass’n v.

Quesada, 276 F.2d 892, 896 (2nd Cir. 1960) cert denied

_ 366 U.S. 962; Davis, Administrative Law Treatise, § 7.01.

There is no indication whatever that the F.A.A. intended

‘+ to short-circuit that right, for there is’no indication what-

ever that the agency conceived of or intended its grant

agreement with respondent to constitute the p

of a federal safety standard. The decision of tl 1-

; =

nat 17 e4y ;

setts court did what the agency could not have done. It

could not promulgate a standard without notice and hearing

in accordance ‘with well established modes of’ federal ad-

* ministrative procedure. ets :

This is not to say that Neale SRO cannot interpret

federal law or even interpret it wrongly. The crux of this

issue is simply this:, Before their properties. were made

subject to the respondent’s order of taking in August of ~

1963, petitioners had two protections : (1) the existence of

’ “a Massachusetts statute, St. 1963 ¢. 410, prohibiting west-

ward extension except to comply with federal saféty stand-

ards; and (2) the absence of any federal safety standard

that would require or permit the taking of their properties:

By establishing,’ and retroactively applying, by its decision,

_ @ federal safety standard requiring the’ taking of peti-

tioners’ properties, the Massachusetts court has effectively

eliminated an avenue of redress that would héve been used

by petitioners had the F.A.A. desired to establish a federal

safety standard that would endanger thc‘r homes.

Conclusion

The questions presented here’ transcend this case. The

right of property owners to contest intervening takings

- which, if valid, necessarily result: in a taking of .the

: Causby-Griggs type or at.the very least serious diminution

~ of the value of their property, is one that may arise any

time an- airport anywhere extends its runways. and clear

zones to accommodate ever larger aircraft. Petition for a

writ of certiorari should be granted.

: YY

| Respectfully submitted,

‘o C 2a teary ' Vurcent A, Cereste

my ‘ Counsel for Petitioners: °

. Appendix A ~

ies: SSI 3 eran 7 on

OPINIONS or rxz SUPREME JUDICIAL COURT

_ | Published under authority of Chapter 402 of Acts of 1935

Mary Losour & others vs. Massacuuserts Port

AvTHoRITY.

—"

Fue Suffolk. “February 5, 1968. — March 11, 1968.

Present: ‘Wixins, z.. SPALDING, Wurrrassons, Cutter, &

King, JJ. = |.

Logan International Airport. Eminent Domain, Validity of taking,

Airport. Parks. Equity en — Equity Pleading

and- Practice, Parties. cm

Sn yb inh Sper Curt by Bede, on de-

Ie ae ve eee epee

Currze, J. Owners of land ‘in East Boston seat: o-

claratory, relief concerning the Authority’s eminent do-

main takings (by order of August.8, 1963) of land near

Neptune Road, East Boston, for the Logan International .

Airport. Their principal contention is that the Authority

' has taken land lying ‘‘westerly of the present property line

of the .. . [a]irport’’ in violation of St. 1963, ¢. 410. An

appeal from an interlocutory decree sustaining the Au-

‘ thority’s demurrer now presents only the issue whether the

plaintiffs have standing to question the use of Wood Island

Park (mentioned below) for airport purposes. A master’s .

Teport,on other phases of the case was confirmed. By final

decrée, it was declared that the properties mentioned in the

order of August 8, 1963, were validly taken, as permitted

by St. 1963, c. 410, ‘‘for the purpose of protecting the aerial

approaches’? to Runway 15-33 ‘‘in accordance with ap-

3 ore ,

TE TT EE TRIE Pe renee

, :

plicable federal standards,’’ and ‘‘for the purpose of meét-

ing-runway clear zone requirements of the federal govern-

ment.’’ The plaintiffs appealed.

The Authority is responsible for the: “control, operation 7

- and maintenance’’ of the airport. St. 1956, c. 465, § 5. It

may ‘‘extend ... [and] improve ... the projects under .

- its: control’’ an may acquire by suchas or by eminent

domain under G.L. ¢. 79 ‘‘such . . . lands . . . as it, may

deem necessary for carrying out ‘the provisions of’’ the

1956 statute. See c. 465, § 3 (g) and (k). The Authority’s

powers are to be construed liberally. Massachusetts Port

Authy. v. Clerk of the East Boston Dist. Court, 350 Mass.

195, 202. By St. 1963, c. 410, it was provided that the Au-

thority ‘‘shall not, except for [A] the purpose of protect-

ing the aerial approaches to runways in accordance with

capplicable federal standards, [B] meeting runway clear

zone requirements of the federal government, providing

for the installation of navigational and landing aids re-

quired by the federal government, or [C] meeting other air

. safety requirements of the federal government, acquire by ,

the exercise of the power of eminent domain for airport

purpos¢s any land above mean high water in the- East

Boston district of the city of Boston [D] sagt of the

present property line of the . . [aJirport ...’’ (empha-

sis supplied). :

The area.in Bast Serta ‘iia and at the airport), con-

cerning which this controversy arises, is shown on the ac-

companying plan. The plaintiffs owned land (marked by a —

bracketed [B] at the left side of the plan) on the southwest

side of Neptune Road. Neptune Road is separated from’

the main airport runways by World War. Memorial Park,

i ateataiiiamman

1 The letters in brackets are inserted for convenience of reference to

- the italicized language following such letters. Statute 1963, c. 410,

was repealed by St. 1964, c. 383, § 1, but in respects here pertinent

was substantially reenacted by c. $83,-4 2. The italicized language re-

mained unchanged from the 1968 statute. _

- 20

also known as Wood Island Park (marked [C] on the

plan),? and by an area of tidal water (marked [E] on the

plan). At the right of the plan appears the northwest end _

(marked [A] on the plan) of present Runway 15-33. This

runway now extends southeast from the point marked

[A] for a distance of 7,873 feet, to a-southes asterly ter-

minus, shown by the exhibits to be only.a few hundred feet

from the water’s edge of Boston harbor and from the air- —

port boundary. The paved surface of Runway 15-33 is 150

feet wide. It is used for instrument landings of a

aircraft.*

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In 1962 and 1963, and in prior years, the Authority

studied the possibility of extending Runway. 15-33 so that —

it would be 10,000 feet long. The master found that: this

‘fextension contemplated an additional paved. -Tunway ( of”’

2,127: feet. Exhibits indicate that this extension ( shown

as [D] on the plan) is to be made “‘over tidal flats” at

the northwest end of the existing: runway (from about

point [A] shown on the plan to.a litte shown as [2] ) to

near the present high water line of the southeasterly shore-

line of Wood-Island Park. Filling‘of the tidal flats in the

_ harbor area (marked [E].on the plan) will be required

and some fill already(has been placed. Thus no property

now or formerly belonging to these plaintiffs, and no. tak-

ing of land not already owned by the Commonwealth or

by. the Authority, will be: required ‘‘to extend physically . «

Runway.15-33 to a length of’’ 10,000 feet. Z |

The Authority has removed a bridge sh cosh: access

’ from Neptune Road to Wood: Island- Park and has con- -

structed a fence which remaves the park “effectively from

’ public use.for recreational purposes.’’ Trees in the park

have been cleared. Statute 1953, c. 528, provided that

control of the park should be i in the Metropolitan District.

Commission ‘‘until such time as the governor and council, .

- upon request of the state airport management board, di-

rects its transfer to said board for airport purposes.’’ See

St. 1955, ce. 438. No actual or intended use of the park

area for physical extension of the runway is proposed now,

although use of the park will be required for a ‘‘clear zone’?

* Because the actual ‘extension of Runway 15-33 ‘was not to go

northwest of the high water mark at Wood Island Park, only “use of ti-

‘dal area (and some airport land east of the/ tidal ‘area) was in-

volved. It was stipulated orally at the argume

obstacles, presénted by 1939 harbor lines (existi

to filling the flats in the tidal area (marked ib on the plan) were re-

moved by St. 1966, c. 738, a8 a 2. ee

: (a matter discussed later in 1 this opinion) whgn the run- ~

\: way is’ extended.

_ On October 31, 1961; the ‘Authority made a : request for

Federal aid for its 1962-development program, including

an,item for property acquisition for approach, protection,

and clearing in connection with Runway 15-33. On May 31,

1963, the Authority made’an application (amended in

June, 1963) ‘‘bearing upon a £1963 Grant-in-Aid Pro-

gram’ ’’ contaiping. a land acquisition ‘“‘for Runway 15

Clear Zone.’’ Both the 1961 and the 1963 -proposed ac-

quisitions included properties on Neptune Road then owned

by the plaintiffs. A grant offer was made-by the Federal

Aviation Agency (FAA) to the Authority on June: 28,

\ grant offer thus became an agreement between the Auth-

\ ority and FAA (the 1963 grant agreement). See 49 U. S.-C.

' § 1111 (1964); Federal Aviation Regs. § 151.31, The 1963

grant agreement provided that the Authority would not .

. commence certain work on the property acquisition pro-

. ject until. plans had been approved by FAA. The master *”

found (a) that apart from the 1963 grant agreement, there -

was no obligation’on the part of the Authority to extend

' Runway 15-33, but (b) that the acquisition of the plaintiffs’

properties became ‘‘a part of . ... [the 1963] grant agree-.

_ ment.’? He also found that from ‘‘an aviation viewpoint,

‘the ... extension of [R]unway 15-33 was and is . . . desir-

able,’’ and that ‘‘the removal of structures on... Nep-

5 A 1965 Blan in evidence, approved by the Authority and by FAA,

shows the 2,127 foot extension, but it is not shown that this 1965:

plan bears direct relationship to the 1963 grant agreement. It does

appear, however, that “extension of [Rlunway 15-33 was divided into

three’ ” and that a contract for phase’I involving a commit-

seuss. et $500,068 jos bens guanied, bat apt completed bevgues of the Rae

harbor lines problem now solved by enactment. of St. \1966; c

-.+ 783 (fn. 4, eupra). That the general scheme of ‘extending ‘and pro-

tecting the runway has FAA approval. is — eppeaneh, from .

the master’s — = various exhibits. Ha Nhe

a \

cal Standard Order N18 (TSO-N18) which provides that “an ap-

proach area” is 10,000 feet long “beginning 200 feet outward. from

ice Se

ais Road would provide a greater factor of safety for al

concerned.’” @:

Federal regulations 8 aualinn with the Federal Aid to ‘Air-

ports Program require, in connection with Federal grants,’

the acquisition, control, or protection of so called ‘¢run-

way clear zones’’ which are designed ‘to allow the unob-

structed passage of aircraft landing or taking off from. a

runway. ’? The master found that the plaintiffs’ parcels on

Neptune Road are all beyond a 2,500 foot ‘‘clear zone”’

from the present paved 7,873 foot Runway 15-33. These

parcels, however, will be within a ‘‘clear zone’’ of 2,500

feet for Runway 15-33, if and when it is extended north-

westerly as proposed (i.e. to point [F] shown on the an-

nexed plan), The master justifiably eoncluded that ‘‘the

‘structures upon the [plaintiffs’] -premises, . . . [on] Nep-

tune ‘Road, do not constitute an obstruction p= aviation

‘within .'. . applicable federal standards as . . . Runway 15-.

‘33 exists presently at a length of 7,873 ' feet, but ons ae

-[such] structures would constifute” an obstruction .. . to

aerial navigation, within . .. applicable federal scindanie:

if and when... Runway 15-38 may be extended’’ to es -

000 feet.

°See 49 U.S. C. § 1101 et seq. (1964),. and 14 CFR (1967)

§§ 151.7 (a), 151.9 and 151.11 (c). The regulatioris refer.to Techni-

the end of each runway and extending outward,” -ending 10,200

feet from the end of the runway. For “instrument runways” like Run- -

way 15-33, there are special requirements.

7 By. ‘the Federal statutes, the following principles are established.

(1) Among the mt of airport development serge oe! is “ac-

quisition of land . . . necessary to .. . mitigate . . . airport hazards,”

see § 1101 (8). "(2) the administrator (to ‘ensure, among other

things, that the aerial approaches to an airport will be adequately

cleared ) “shall prescribe such . . . requirements . .. as he may deem

necessary,” see § 1110: (3), The administrator shall approve a pro-

cist Avdbanliglegg -enigetarentine rig i . will contribute to the

1108 08 (d).

@¢

complishment of the. purposes: of the” Federal statute. See §°

26.

2 The master’s report (although more restricted in its

2 discussion of negotiations for the runway extension than

‘would have been helpful) and: the accompanying exhibits

adequately establish that the Authority has long planned.

extending Runway 15-33 to 10,000 feet and, that such an -

taking by eminent domain land near Neptune Road or else-

where for actual. runway construction. Chapter 410 did not

: forbid extending the paved section of Runway 15-33 to the

northwest over land which did not have to be taken by em- —

- inent domain after the effective date of c. 410. Nothing in

ce. 410 prohibited building a runway upon tidal flats of the

Commonwealth .or upon Wood Island Park, held for po-

tential airport use at the discretion of the Governor and

: Council. See St. ‘1953, c. 528. Such an extension is plainly

- within the Authority’s broad, — powers under St.

1956, c. 456.

#~ Statute 1963, ¢. 410 (see fa. 1, supra, 5 and related text of

go opinion), by its exceptions (see italicized language at

points [A], [B], and [C]), expressly’ permitted the Au-

thority to make eminent domain takings, even ‘‘westerly

_ of the present property line of the. . . [alirport’’ (see

point [D] of c. 410, as quoted) to meet Federal safety re-

quirements and standards. No language confined the ex-

ceptionsin c. 410 to existing runways. We see no justifica-

tion for’ inserting in c. 410, by implication, language thus

confining the exceptions. We interpret c. 410 as permitting

_. the Authority to take land ‘‘westerly of the. [airport’s]

present property line’’ to protect ‘‘the aerial approaches”’

_. to new or extended runways as well .as to Aina ap-

proaches to existing runways.

Examination of the 1963 grant se tiniad and of ‘the

" papers and exhibits leading up to it, shows that the purpose

of the Neptune Road land acquisitions was to’ protect ee

aerial cciiiaas to aeenway 15-33 from the northwest, and on

_ to question the filling of tid

that this purpose was approved by FAA as sufficiently i im-

proving aviation safety and. Op ations to justify Federal

ments of the 1963 grant. agreement that ‘the land be. ac-

quired, taken with te Project of éxte: }

“bring the takings ordered on August 8, 1963, Within the

exceptions to the prohibitions of St. 1963, c. 410.

2. ‘The trial judge sustained the® Authority’s deinurree” |

on two grounds, viz. (1) that. (with respect to paragraphs

_ of the bill pertinent. to this issue) the plaintiffs. have no.

standing in equity to question the Authority’ ’s use of Wood

Island Park; and (2) that the ii tiffs’-have no standing ~

u- lats in violation’ of the 1939

harbor line, now changed By St: 1966, c. 733. The second

‘ground of demurrer is: fo longer in issue (5 see fn. 4, supra)

- because of c. 733. We thus discuss’ only, the first re of ;

-demurrer.. |

_ The plaintiffs sdieny no acti as giving them ihisibing'§ in

this proceeding to seek,equitable relief concerning Wood

Island Park, other than their ownership of land on or near

‘Neptune Road, ‘references: to the statutes concerning the

park. (St. 1949, c..431; St. 1953, c. 528; St. 1955, c. 438),

and statements that the Authority has cut off ances to the _ -

_ park and has done, or proposes to do, construction work

there. The proper public officer to protect park land by.

bill in equity is the Attorney General.® See Jacobson v.

‘Parks & Recreation Commn. of Boston, 345 Mass. 641, 644.

- See also Cabot v. Assessors of Boston, 335 Mass. 53, 57-58;

’Nickols v. Commissioners of Middlesex County, 341 Mass. |

13, 16-18 (in which, however; relief by mandamus was

granted to enforce the trust there considered, see pp. 18-19,

8 The Attorney General is not a party to this case. Although. the _ |

docket shows that a former Attorney General filed a motion on Feb-'

_ Truary 10, 1966, for leave to intervene as a party defendant, ‘it sia

not appesr. that the motion was. allowed.

4. Cf. Gould v. Greylock Reservation Commn., 350 Mass: _

' 410 (mandamus). Under principles stated in the cases just .

_ cited, the demurrer wa’ properly sustained on the first

ground. a . *, ‘ <8

3. The Authority contends that this court should deal

with certain matters not covered by the final deeree. We

think that decision of these issues is not necessary to termi-

_ nate the controversy. | : .

(a) The Authority suggests that the lands, on+Neptune

Road taken by it do not lie ‘‘westerly of the present [air-

port} property line’’ within the meaning of St. 1963, c.

410 (see fn. 1, supra, and related text of this opinion).* Be-

cause we have concluded that the Authority’s 1963 takings

were proper under ¢. 410 in any event, we see no occasion

for resolving now-any ambiguity which may exist in c.

410 and its application to the airport property lines.

‘ (b) There is also now no occasion, because we hold that

the 1963 takings were valid, to determine whether the

plaintiffs have standing in this proceeding to question their

“validity. For like reasons, we see no occasion to decide

whether the plaintiffs (wha certainly have long been vigor- |

ously protesting the Authority’s proposals) are barred by

laches. . , -h.

4. The ‘interlocutoty decree, sustaining the Authority’s

Vincent J. Geleste for the plaintiffs.

Donald R. Grant for the defendant.

-. Appendix Saeae

CoMMoN WEALTH oF MassacHugetts

Suffolk, ss. far ° Superior Court

a Ara) | No. 85004 Eq.

Mary Loscui et al.

F v.

Massacuvusetts Port AUTHORITY

_ FINAL DECLARATORY DECREE

AFTER RESCRIPT

This cause came on to’be further heard after the re- _

script issued by the Supreme Judicial Court for the Com-

monwealth on March 11, 1968, and was argued by coun- 4

sel; and thereupon, upon consideration thereof, it is Or-

DERED, Agree, and DECREED as anew

1. The properties of the petitioners Mary. Los- "4

chi, Margaret Cianci and Mary Pascucci which are de- ~

scribed or referred to in the order of taking adopted

by the Massachusetts Port Authority on August 8,

1963, and recorded in the Registry of Deeds for

Suffolk County on September 5, 1963, in Book 7776,

Page 228, were validly taken by said Authority by the

exercise of the power of eminent domain ‘‘for the

purpose of protecting the aerial approaches’’ to Run-

way 15-33 at General Edward Lawrence Logan Inter-

national Airport ‘‘in accordance with applicable ‘fed-

“-

eral standards’’-within the meaning, of St. 1963, c..

410. 2 eee | |

la | a7 oo ¢

2. The properties of the petitioners Mary Los-

chi, Margaret Cianci and Mary Pascucci which are de-

scribed or referred to in the order of taking adopted

‘ by the Massachusetts Port Authority on August 8,

1963, and recorded in the Registry of Deeds for Suf- °

folk County on September 5, 1963, in Book 7776, Page

228, were validly taken by said Authority by the exer-

cise of the power of eminent domain ‘‘for the pur- °

pose of meeting runway clear zone requirements of

. the federal government’’ with respect to Runway 15-

33 at General Edward. Lawrence Logan International

Airport within the meaning of St. 1963, c. 410.

By the Court, (Bzaupreav, J.)

(s) Rosert Beaupreau

JI8.G.

Entered: March 21, 1968 ;

-A True Copy : .

ATTEST ae |

(s) Tuomas F. Brorxey

Assistant Clerk

_ je . Appendix C °

United States Constitution, Amendment XI V:

Section 1 ‘‘... No State shall . ». deprive any citizen of

life, liberty, or property without due process of law; .. .’’

28 U.S.C. § 1257 rae

~ ‘Final judgments or decrees reer by the highest

court of a State in which a decision could be had, may

‘be reviewed by the Supreme Court as follows: ;

‘‘(3) By writ of certiorari, where the validity of | a

treaty or statute of the United States’is drawn im ques-

tion or where the validity of a State statute is drawn in.

question on the ground of its being repugnant to the Consti-

tution, treaties or laws of the United States, or where any ,

title, right, privilege or immunity is specially set up or °

claimed under the Constitution, treaties or statutes of, .

or commission held or authority exercised under, the

United Btates. 0

14 OF R. § 11.29 Notice of proposed rule making.

(a) Each general notice of proposed rule making is

published in the Feprrat Recister, unless all persons sub-

ject to it are named and are personally served with a

copy of it.

(b) . Each notice, whether published i in the Fanenat. Br.

GISTER or personally served, includes— ,

(1) A statement of the time, place, and nature of ‘the

proposed rule-making proceeding; —

(2) A reference to the authority under which. it is is-

sued; © |

(3) A description of the subjects and issues involved or

the substance and terms of the proposed rule;

(4) +A statement of the time within which written com-

32 3 °

oe must be submitted. and the disie caamien number of co-

piés; and

(5) A statement: of how and to what’ extent interested

persons may participate in the proceeding, as prescribed

by §§ 11.31 and 11.33.

- (ce) A petition for extension of the time for com-.

ments must be submitted in duplicate not later than two

days before expiration of the time stated in the no-

tice. The filing of the petition does pot. automatically ex-

tend the time for petitioner’s comments. Such a. peti-

tion is granted only if the petitioner shows a substan-.

tive interest in the proposed rule and good cause for the .

extension, and if the extension is consistent with the pub- —

lic interest. If an extension i is granted it is published i in the

‘FEDERAL REcIsTER. ;

$11.81 | Participation of interested persons in rule-making

procedures.

(a) Each interested person is entitled to participate in

rule-making. proceedings by submitting written informa-

tion, views, or arguments. In addition, he may comment

on the original information, views, and arguments sub- -

‘mitted ‘by other persons, if, after receiving them, the Ad-

‘ministrator considers it desirable.

(b) In any appropriate case, the Administrator also

allows interested persons to participate in the sete-mee-

' img procedures described in § 11.33.

§ 11.33 Additional rule-making proceedings.

(a) The rule-making, procedure also includes any far-

ther procedural steps that best serve the purposes of a par-

ticular proceeding. For example, interested persons may be

allowed to make oral arguments, participate in confer-

ences between the Administrator or his representative and

‘interested persons and onganizations, appear at informal

hearings presided over by a designated FAA official. at

which a stenographic transcript is made, or participate in

any other procedure whenever it’is desirable and appro-

priate. to assure informed administrative action and ade-

quate protection of private interests.

_ (b) Any appropriate: combination of. the, procedurés

_ described in’ paragraph (a) of this section may be used

~in addition to the basic procedure of allowing interested

persons to partieipate in rule-making proceedings by: sub-

mitting written information, views, or arguments.

Acts, 1963.

Cuap. 410. An Acr PROHIBITING THE EXPANSION OF - THE

LOGAN AIRPORT OR THE CONSTRUCTION OF HAN-

GARS IN A WESTERLY DIRECTION THEREFROM. '

“Whereas, The deferred operation of this act would tend

to defeat its purpose, which is forthwith to protect the

public interest by preventing the exparision of the Lo- «

hangars in such direction, therefore it is. hereby dec-

lared to be an emergency law, necessary for the imme-

diate preservation of the public convenience.

Be it enacted, etc., as follows: :

The Massachusetts Port Authority, created by section

two of chapter four hundred and sixty-five of the acts

- of nineteen hundred and fifty-six, shall not, except- for

the purpose of protecting the aerial approaches to run-

ways in accordance. with: applicable federal standards,

meeting runway clear zone requirements of the federal

government, providing for the installation of navigational

and landing’ aids required by the federal government, or

meeting ‘other air safety requirements: of the federal gov-

ernment, acquire by the exercise of the. power of eminent —

‘domain for airport purposes: any'land above mean high

34 |

water in ‘the Kast Boston district of the city of ‘Sen |

westerly of the present property line of the General Kd-

ward Lawrence Logan International Airport, nor shall

said Authority build, cause to be built nor allow to be

built any hangar, or allow the operation of any aircraft,

on land‘ owned by it and lying southwesterly of Porter

street and westerly of ‘the existing airport service road

| running between Porter. street, and Maverick str eet.

ju May 16, 1963. ,

a’

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.