Petition for Writ of Certiorari — Riggs v. Burson

Supreme Court !'

97-596 JUL -7 1997

No. 97-

OFFiCc OF IHE CLERK

IN THE

Supreme Court of the United States

Term, 1997

BOBBY RIGGS, and M-HELICOPTERS

OF TENNESSEE, INC..,

Petitioners

VS.

CHARLES W. BURSON, Tennessee Attorney General

and Reporter, CARL JOHNSON, Commissioner of

the Tennessee Department of Transportation,

Respondents

On Petition for Writ of Certiorari

To The Supreme Court of the State of Tennessee

PETITION FOR WRIT OF CERTIORARI

STEVEN E. MARSHALL

Counsel of Record

Marshall & Delius, P.A.

124 Court Avenue, Suite 201

Sevierville, TN 37862

(423) 428-3556

SSS LL A EL LE RET TL I IO, ENE IAT SEI

Brief Printing Specialists, Inc., 1001 E. Main Street, Suite 210

Richmond, Virginia 23219, (804) 644-0700

i

QUESTIONS PRESENTED FOR REVIEW

Whether Chapter 727 is preempted by the Federal

Aviation Act or the Federal Noise Act.

Whether the Chapter 727 violates the Equal

Protection Clause of the Fourteenth Amendment of

the United States Constitution.

Whether Chapter 727 violates the provisions of the

Tennessee Constitution forbidding the suspension of

general law or the imposition of burdens based on an

unreasonable classification.

Whether Chapter 727 violates the statute allowing

the continuance of nonconforming uses of property.

Whether the case should have been remanded for

further development of the facts.

i

PARTIES AND CORPORATE DISCLOSURE

The undersigned counsel of record certifies that the

persons and entities listed below are parties in this

proceeding.

Petitioners:

Bobby Riggs, a natural person, residing in the State

of Tennessee;

M-HELICOPTERS OF TENNESSEE, INC., a

corporation with its principle place of business in

Pigeon Forge, Tennessee.

Respondent:

Charles Burson, Tennessee Attorney General and

Reporter;

Carl Johnson, Commissioner of the Tennessee

Department of Transportation.

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CONSTITUTIONAL AND STATUTORY

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STATEMENT OF THE CASE .............. Sooo y

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CHAPTER 727 IS PREEMPTED BY

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THE STATUTE VIOLATES THE

EQUAL PROTECTION CLAUSE OF

THE FOURTEENTH AMENDMENT OF

THE UNITED STATES

CONSTITUTION BECAUSE IT

IMPERMISSIBLY DISTINGUISHES

BETWEEN BUSINESS OPERATING IN

SIMILAR CIRCUMSTANCES ............ 15

THE STATUTE VIOLATES THE DUE

PROCESS CLAUSE BECAUSE IT IS

NOT RATIONALLY RELATED TO A

LEGITIMATE STATE INTEREST IN

THAT IT CANNOT REASONABLY

ACHIEVE THE STATUTE'S

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TABLE OF AUTHORITIES

cases: page

Chevron U.S.A, v. Natural Resources Defense Council,

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Enolish v. G | Electric Co...

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FCC v, Beach Communications, Inc., U.S. , 113

ees PE CUD cave ticacscwrdvvceevscewedben 16

Hellerv.Doe, US. __,

bob 8 ay oy Re od. ) Breer 16, 17

Hillsborough County v. Automated Med, Labs, Inc.,

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Hooper v. Bernalillo County Assessor,

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vi

Lindsey v. Normet,

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Richardson v. Belcher,

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No. 91-493 (Sevier Circuit)... ... ccc cc cccccccccuce 4

San Diego Unified Port Dist. v. Gi .

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constitutions and statues:

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1992 Tenn. Pub. Acts ch. 727...... 2, 10, 11, 12, 13, 1%, 23

Tenn. Code Ann. § 13-7-208(b) .............0000: 5, 20

Tenn Code Ann. § 54-20-101 et seg... .........00005 19

femm. Code Ame. 6 S6-b 7110 . oo. cd vc cus cvceceaes 19

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OPINION BELOW

The opinion of the Tennessee Supreme Court is

reported and is reprinted in the Appendix at App. 8.

JURISDICTION

The plaintiffs motion for rehearing before the

Tennessee Supreme Court was denied on April 7, 1997. This

petition for certiorari is timely filed within ninety (90) days of

that date. This Court has jurisdiction pursuant to 28 U.S.C. §

1257.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case concerns the Supremacy Clause of Article VI

and the Equal Protection Clause and the Due Process Clause of

the Fourteenth Amendment of the United States Constitution,

which are set out in the Appendix beginning at App. 1. Chapter

727 of the 1992 Tennessee Public Acts is reprinted in the

Appendix at App. 3.

STATEMENT OF THE CASE

On June 24, 1994, Petitioners, Bobby Riggs and M-

Helicopters of Tennessee, Inc., filed a complaint in the Circuit

Court of Sevier County against the Commissioner of the

Tennessee Department of Transportation and the Attorney

General of the State of Tennessee (the State). In that

complaint, the Petitioner challenged the constitutionality of

1992 Tenn. Pub. Acts ch. 727. (now codified at Tenn. Code

Ann. § 42-8-101 to-105 (1993)).

The Petitioners complain that the statute is

unconstitutional because it is preempted by federal law, because

it violates due process and equal protection, and because it

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effects an unconstitutional taking of private property without

just compensation.

The Petitioner, Bobby Riggs, owns and operates M-

Helicopters of Tennessee. The Petitioners and other heliport

businesses. all located in the city of Pigeon Forge, Tennessee,

provide aerial sightseeing tours near, but not over, the Great

Smoky Mountains National Park. Bobby Riggs, a former

Marine Corps pilot, is a licensed, commercial helicopter and

fixed-wing pilot with forty years of flying experience. He has

thirty-two years of experience as superintendent of maintenance

and flight training of the Metro-Dade Police Department in

Florida. He is a flight instructor, an instrument instructor and

holds an instrument license and a power plant mechanic's

license. In all the years he has been flying, he has never had an

accident. He has never been cited by the FAA for any type of

violation.

4

Mr. Riggs holds a ten-year lease on the land he is

currently using as a heliport in Pigeon Forge. He owns two

helicopters valued at $900,000.00 and approximately

$200,000.00 of other equipment at this location. The site has

been licensed as an airport for fifteen years and specifically as a

heliport for more than three years. There is no dispute that if

forced to shut down this heliport, Mr. Riggs will be forced to

liquidate his assets and suffer a substantial economic loss.

Prior to the enactment of the statute which is under

review in this case, the local government officials have

attempted to close down helicopter operations in Pigeon Forge.

The first effort to enact an ordinance in Pigeon Forge failed

when it was ruled preempted by federal law. Riggs v. City of

Pigeon Forge, No. 91-493 (Sevier Circuit). Another attempt,

this time through the General Assembly, failed when the

Tennessee Attorney General's Office would not support the bill

as drafted.

5

Failing to enact a local zoning restriction, the

opponents of the Petitioners’ business persuaded the state

legislature to pass Chapter 727. Chapter 727 prohibits the

operation of a commercial heliport within nine miles of the

boundary of a national park. Since there is only one National

Park located within Tennessee, the statute applies only to

Sevier, Blount and Cocke Counties. Passage of the bill was

undoubtedly made easier by the fact that it affects only three

counties. The chief benefit to enacting a state statute for the

proponents of the Act was that it expressly circumvented the

statutory rule that local zoning ordinances must permit

nonconforming uses. Tenn. Code Ann. § 13-7-208.

Although the Act claims to protect schools and

residential areas from noise and the safety hazards of heliports,

the Petitioners’ heliport and all other heliports in the vicinity are

located in commercial areas in the city of Pigeon Forge. As the

bill was being considered by the General Assembly, there were

6

no hearings in which evidence was brought to demonstrate that -

heliports within nine miles of a national park posed any danger

to public safety, presented a noise problem, or created a public

nuisance. No fact-finding was conducted at all. In the

discussions before the transportation committees and on the

floor of the House and Senate, the only concern that was

mentioned was for disturbing the peace of the park animals and

tourists. Contrary to these assumptions concerning noise, the

Petitioners conducted tests of noise levels in and around area

schools and businesses and found no appreciable increases in

noise levels and nothing to support the claimed disturbance of

schools and residents.

On September 13, 1994, this case was consolidated

with several other cases.' The plaintiffs in these actions later

withdrew. On September 23, 1994, the State filed a motion to

Great Smoky Adventures, L.P.. v. Burson, No. 93-355; Haynes

y. Burson, No. 93-356; Scenic Helicopter Rides, Ltd. v. Burson, No. 93-357.

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7

dismiss for failure to state a claim. On the same day, the

Petitioners filed a motion for summary judgment.

The motions were heard on October 24, 1994. At the

hearing, the parties agreed to reserve the issue of inverse

condemnation, and to allow the plaintiffs’ business to continue

to operate pending a resolution of the matter. The trial court

dismissed the plaintiffs’ motion for summary judgment and

granted the State's motion to dismiss. Judgment was entered

accordingly on December 21, 1994, under Tenn.R.Civ.P. 54.02

certifying it for immediate appeal. A notice of appeal was filed

on January 19, 1995.

In a decision dated October 31, 1995, the Tennessee

Court of Appeals reversed the trial court on three grounds. The

State subsequently filed an appeal to the Tennessee Supreme

Court. That court reversed the Tennessee Court of Appeals,

concluding that there was no preemption and no violation of

due process or equal protection. The Tennessee Supreme

8

Court's decision was entered on March 10, 1994 and the

Petitioners’ motion for rehearing was denied on April 7, 1997.

ARGUMENT

CHAPTER 727 IS PREEMPTED BY FEDERAL LAW.

C ; —

noise.

The Supremacy Clause of the United States

Constitution provides that “(t]he Constitution and laws of the

United States which shall be made in Pursuance thereof ... shall

be the supreme Law of the Land.” U.S. Const., art. VI, cl. 2.

Under the Supremacy Clause, federal law may

supersede state law in several different ways.

First when acting within constitutional limits,

Congress is empowered to pre-empt state law

by so stating in express terms. In the absence

of express pre-emptive language, Congress’

intent to pre-empt all state law in a particular

area may be inferred where the scheme of

federal regulation is sufficiently comprehensive

to make reasonable the inference that

Congress "left no room" for supplementary

state regulation. Pre-emption of a whole field

9

will also be inferred where the field is one in

which "the federal interest is so dominant that

the federal system will be assumed to preclude

enforcement of state laws on the same

subject."

Hillsborough County v. Automated Med, Labs, Inc, 471 U.S.

707, 712-13 (1985) (citations omitted).

As recognized by the United States Supreme Court in

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

(1973), the Federal Aviation Administration and the

Environmental Protection Agency have full control over the

issues of airspace management and of aircraft noise. In that

case, the City of Burbank enacted an ordinance placing a curfew

on the takeoff and landing of jet aircraft from the local airport.

The Court ruled the ordinance unconstitutional as violating the

preemption doctrine of the Supremacy Clause. The Court

stated that although states may generally regulate noise through

their police power, "the pervasive control vested in the EPA and

the FAA under the 1972 Act seems to us to leave no room for

10

local curfews or other local controls." 411 U.S. at 638. The

Court specifically cited the concerns of Congress in passing the

Noise Control Act of 1972 not to allow inconsistent local laws

to spring up regulating aircraft noise.

t tthe J ificall —_

noise.

Chapter 727, on its face, is an attempt to regulate

aircraft noise which is preempted by federal law. In its

preamble, the Act states in part as follows:

WHEREAS, the use of this land for helicopter

operations is inconsistent with the

development of the tourist industry in those

counties because the helicopters disturb the

peace and quiet and interrupt the enjoyment

of the area by most tourists; and

WHEREAS, the use of this land for helicopter

operations is inconsistent with the residential

development in those counties because the

helicopters pose a safety hazard to residents in

their homes and to motor vehicle operators on

the area roads and highways, disturb the

peace and quiet and interrupt the enjoyment of

the area by residents in their homes and

places of work, and interfere with the

operation of schools, funeral ceremonies and

1]

other public events; ....

1992 Tenn. Pub. Acts ch. 727 (emphasis added).

On its face, the Act is aimed directly at the regulation

of aircraft noise. It states plainly the assertion that "helicopters

disturb the peace and quiet and interrupt the enjoyment of the

area by most tourists.". 1992 Tenn. Pub. Acts, ch. 727,

preamble. Since the regulation of aircraft noise is a subject

preempted by federal law, the Act is invalid.

Ini er tates aircraft in fight.

The Act implicitly seeks to regulate the operation of

helicopters in flight. By declaring helicopter operations

incompatible with residential development, the General

Assembly was obviously focusing on the operation of

helicopters in flight because the heliports are not located in

residential areas. Nor are they located near cemeteries or

schools, or any area where "public events" are held. Because

the heliports are not located near any of these areas, the

12

helicopters could disturb them only while in flight to and from

the Park.

The only other concern cited by the statute, apart from

noise, was a vaguely worded "safety hazard to residents in their

homes and to motor vehicle operators on the area roads and

highways." Since the safety of aircraft in flight is preempted by

the Federal Aviation Act, Chapter 727 can only be directed at

safety during landings and takeoffs at the heliports. Takeoff

and landings, however, are properly part of the regulation of

safety and noise under the Federal Aviation Act. This was true

in City of Burbank, where the Court, noting "a variety of

regulations relating to takeoff and landing procedures" had been

promulgated, said that the balance and interdependence of the

safety, efficiency, and protection of persons on the ground

"requires a uniform and exclusive system of federal regulation

if congressional objectives underlying the Federal Aviation Act

are to be fulfilled." 411 U.S. at 639. Thus, the Court

Pe ee

13

recognized the statute's preemption of safety issues relating to

the takeoffs and landings of aircraft.

The Tennessee Supreme Court's reliance upon a letter

of the FAA stating that the statute was not preempted by federal

law is misplaced.” The FAA letter, itself, does not give Chapter

727 aclean bill of health. It cautions that Chapter 727 may be

preempted in certain circumstances, such as preventing

helicopter operations at general-service airports, which would

effectively be a regulation of the helicopters themselves, rather

The letter, as filed with the defendants’ motion to dismiss is

unsigned. Nor does it contain a closing, indicating that the full text was never

produced. At least a portion of the letter filed with the motion to dismiss was not

included in the defendants’ appendix to the Tennessee Supreme Court, and another

section appears to have been covered over by another page during copying, indicating,

again, that the full text of the letter was not available to that court.

14

than a regulation of the location of heliports. (citing San Diego

Unified Port Dist. v. Gianturco, 651 F.2d 1306, 1311-1312 (9th

Cir. 1981) cert. enied sub nom. Dept of Transportation v. San

Diego Unified Port Dist., 455 U.S. 1000 (1982).

The Tennessee court's citation of Chevron U.S.A. v.

Natural Resources Defense Council, 467 U.S. 837, 844 (1984),

is inapposite, because the agency interpretation involved in that

case related to promulgating regulations, not to determining

whether its governing Act preempted state law. The Chevron

Court confirmed that the judiciary, not an administrative

agency, is the final authority on issues of statutory construction.

467 U.S. at 843, n. 9. Besides, the FAA was not asked to

interpret its governing statute, but to construe the Tennessee

Act.

The well-settled rule is that determining whether a state

statute is preempted by federal law is essentially an inquiry into

to the intent of Congress. English v. General Electric Co., 496

15

U.S. 72 (1990). To discern this intent, the courts examine the

explicit statutory language and purpose of the statute.

Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 (1990). They

do not examine the agency's opinions. Preemption is, thus, a

matter for the courts to decide. It is not a question for an

administrative agency. Thus, by deferring to the opinion of the

FAA, the Tennessee Supreme Court abdicated its responsibility.

THE STATUTE VIOLATES THE EQUAL PROTECTION

CLAUSE OF THE FOURTEENTH AMENDMENT OF

THE UNITED STATES CONSTITUTION BECAUSE IT

IMPERMISSIBLY DISTINGUISHES BETWEEN

BUSINESSES OPERATING IN SIMILAR

CIRCUMSTANCES.

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the equal protection of the laws.

The Equal Protection Clause is "essentially a direction

that all persons similarly situated should be treated alike."

Cleburne v. Cleburne Living Ctr. Inc., 473 U.S. 432, 439

(1985). Just as with individuals, similarly situated businesses

16

may not be classified for different treatment. As stated in

Cotting v. Kansas City Stock Yards Co,, 183 U.S. 79 (1901),

legislation by which one individual, or even

one set of individuals, is selected from the

others doing the same business in the same

way, and subjected to regulations not cast

upon them, is a discrimination forbidden by the

constitutional provision which obtains both in

the Constitution of Kansas and in that of the

United States, to the effect that the equal

protection of the laws is guaranteed to all.

Id. at 109.

A classification will be upheld against an equal

protection challenge, nevertheless, where "there is a rational

relationship between the disparity of treatment and some

legitimate governmental purpose" Heller v. Doe, _—iU'S.

___, 113 S.Ct. 2637, 2642 (1993). There must be a reasonably

conceivable state of facts that could provide a rational basis for

the classification." FCC v. Beach Communications, Inc.,

U.S. __, 113 S.Ct. 2096, 2101 (1993). The standard of

rationality, however, "must -find some footing in the realities of

17

the subject addressed by the legislation." Heller, supra, 113

S.Ct. at 2643. A local government, therefore, "may not rely on

a classification whose relationship to an asserted goal is so

attenuated as to render the distinction arbitrary or irrational."

Cleburne, supra, 473 U.S. at 446.

In Hooper v. Bernalillo County Assessor, 472 U.S.

612 (1985), the Court held that a statute giving tax exemption

to veterans residing in the state before a certain date violated

the Equal Protection Clause because it was not rationally related

to achieving the asserted goal of giving tax relief to veterans.

The statute did not give relief to veterans who came to reside in

the state after the specified date. Thus, the asserted goal of the

statute to benefit resident veterans was overinclusive because

the effect of the statute was to benefit only a portion of the

state's resident veterans.

18

In the case at hand, the statute is similarly

overinclusive. It asserts a goal of protecting tourists and

residents from the hazards of heliports. In its operation,

however, it only protects those tourists and residents within the

nine-mile zone from those hazards.’ Tourists and residents in

all other parts of the state remain unprotected.

Although the statute's preamble declares that the

growth in the three counties affected by Chapter 727 presents

"unique problems," the only problems the statute attributes to

heliports in those counties are noise and safety hazards. Even

if heliports generally do present such concerns, there can be no

conceivable set of facts by which the legislature could have

believed that the problems posed by heliports inside the nine-

mile zone to traffic, residents, schools or funerals, could be any

, In Cotting, the statute was ostensibly statewide in its

application, but the Court did not hesitate to examine its actual effect of imposing

greater burdens on one business over others. 183 U.S. at 103.

19

different from those outside the zone.* Nothing about its

proximity to the Park changes the nature of a heliport. Its

operation is the same near the Park or far from it.

In Lindsey v. Normet, 405 U.S. 56 (1972), the Court

found a violation of equal protection where a statute placed

greater burdens on pursuing an appeal in one type of case than

for any other type of case. As the Court stated, "[w]hen an

appeal is afforded . . . , it cannot be granted to some litigants

and capriciously or arbitrarily denied to others without violating

the Equal Protection Clause." 405 U.S. at 77.

, If the General Assembly had made this law applicable to all

commercial heliports in congested areas in all counties of the state, it might be valid.

The General Assembly has taken such action relating to automobile junkyards

(Tenn. Code Ann. § 54-20-101 et seg.). and to billboards. Tenn. Code Ann. § 54-

17-108—110. Unlike Chapter 727. however, these statutes are applicable to all

counties statewide.

20

Chapter 727 is a taking of the plaintiffs' property. It

declares all heliports within the nine-mile zone to be nuisances

and simultaneously takes away the right of the their owners to

continue operations as a nonconforming use. The right of all

property owners to continue a nonconforming use, however,

had been recognized in Tenn. Code Ann. § 13-7-208. Just as an

appeal in a certain type of case was unconstitutionally burdened

in Lindsey, heliport owners are denied a right granted to all

other landowners. For the legislature to grant the right, then to

remove it only for some businesses, violates equal protection.

Indeed, the right is removed not for all heliport owners,

but only for heliport owners inside the zone. In Lindsey, the

asserted rationale for the statute was that it would discourage

frivolous appeals. The Court rejected this argument by pointing

out that the statute would just as surely discourage legitimate

appeals. In the case at hand, neither the State nor the courts

ever offer a reason to support the Act's classification. If,

21

however, it is because heliports are considered nuisances, there

is still no justification for heliports outside the nine-mile zone

not also to be considered nuisances.

The Tennessee Supreme Court abdicated its

responsibility to review the statute under the appropriate legal

standard by failing to state the basis on which the statute

classified heliports inside the nine-mile zone differently from

those outside the zone. Although the court said "We have

concluded that there is such a set of facts which justifies the

classification," (slip op. at 18), the court never said what that set

of facts is. Merely saying there is a difference does not make it

sO, aS pointed out in Richardson v, Belcher, 404 U.S. 78, 83

(1971), where the court said that "a statutory discrimination

between like classes cannot be rationalized by assigning them

different labels." Nowhere, at anytime, has either the defendant

22

or the court ever offered a statement, even a conjecture, as to

why the problems of heliports are greater within the nine-mile

zone than they are outside it, or why heliports inside the zone

should be declared nuisances, while those outside it should not,

or why a state statute allowing property owners to continue the

nonconforming use of their property should be suspended only

for heliport owners inside the nine-mile zone.

Even if the legislature is not required to explain its

classifications, the court is required to state the rational basis

supporting the statute. Mr Riggs is being ordered by the

government to move his business to a significantly less

profitable location. Under the rational basis test, he is at least

entitled to a reason.

THE STATUTE VIOLATES DUE PROCESS BECAUSE

IT IS NOT RATIONALLY RELATED TO A

LEGITIMATE STATE INTEREST IN THAT IT

CANNOT REASONABLY ACHIEVE THE STATUTE'S

OBJECTIVES.

23

A statute burdening property rights will pass

constitutional muster if it is rationally related to a legitimate

state interest. Martinez v. State of California, 444 U.S. 277

(1980). As mentioned in Heller, supra, the standard of

rationality "must find some footing in the realities of the subject

addressed by the legislation." 113 S.Ct. at 2643. Chapter 727

lacks a footing in the realities of the subject because it fails to

consider that helicopters in flight, as well as helicopters landing

and taking off, may present noise and safety concerns, which are

only increased when they are forced to traverse greater

distances.

A statute is obviously not rationally related to its

objective if it cannot reasonably achieve that objective. Chapter

727 fails even this minimal constitutional test. As mentioned

above, on its face, the Act indicates a concern for the

interference of heliports with the "peace and quiet” of residents

and tourists and for the "interference with "the operation of

24

schools, funeral ceremonies and other public events" as well as

for the safety of residents and tourists. There is no rational

basis for a trying to reduce noise and safety hazards with a

restriction against /anding helicopters within nine miles of the

Park, where the helicopters are not prohibited from flying

within that nine-mile zone. Moving the heliports farther away

from the Park only increases the area over which they must fly

to get to the Park. Increasing the area over which they fly must

necessarily increase the potential noise and safety hazards and

the "interference," as the preamble calls it, with schools,

funerals and public events.

In addition, although the Act professes a concern for

residential areas and schools, it would move the heliports out of

the commercial areas, where they are currently located, into the

very residential areas and school zones the statute pretends to

protect. Thus, the Act would achieve the opposite of its

intended effect. It, therefore, bears no rational relationship to

25

a legitimate state interest. There is no rational relation between

moving the heliports and reducing noise and safety hazards

within the nine-mile zone.

CONCLUSION

Both on its face and in its operation, Chapter 727 is

clearly aimed at regulating aircraft noise, which subject is

preempted by federal law.

The Act is a local zoning ordinance disguised as a

general state statute. It applies only to a nine-mile zone in three

counties, but, at the same time, exempts itself from the statutes

governing the treatment of nonconforming uses in local sellin

Chapter 727 creates a classification between heliports

inside the nine-mile zone and those outside the zone. The noise

and safety hazards cited by the statute are just as applicable to

heliports outside the zone as to those inside it. Thus, the Act

violates the Equal Protection Clause by discriminating against

similarly situated businesses.

26

In fact, because the Act would force the sightseeing

helicopters to fly a greater distance to view the Park, it would

increase the very hazards that the Act seeks to reduce. It is,

therefore, not rationally related to a legitimate state interest,

and, consequently, violates the Due Process Clause. Because

the Tennessee Supreme Court failed to apply the appropriate

legal analysis to these key constitutional questions, that decision

should be reversed and the case remanded for further

proceedings.

Respectfully submitted,

STEVEN E. MARSHALL

Marshall & Delius, P.A.

124 Court Avenue, Suite 201

Sevierville, TN 37862

(423) 428-3556

Attorney for Petitioners

No. 97-

IN THE

Supreme Court of the United States

Term, 1997

BOBBY RIGGS, and M-HELICOPTERS

OF TENNESSEE, INC.,

Petitioners

VS.

CHARLES W. BURSON, Tennessee Attorney General

and Reporter, CARL JOHNSON, Commissioner of

the Tennessee Department of Transportation,

Respondents

On Petition for Writ of Certiorari

To The Supreme Court of the State of Tennessee

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

STEVEN E. MARSHALL

Counsel of Record

Marshall & Delius, P.A.

124 Court Avenue, Suite 201

Sevierville, TN 37862

(423) 428-3556

ss

APPENDIX

Page

po OE Rode 9 >.) Se App. 1

United States Constitution

AGS oe a OA YES oso aes aa ka eawoes App. 1

IS ee dis oti a Von whic lie wel ae App. 2

sc Baye oR Nee eae Ke ried kee App. 2

Chapter 727

of Tennessee Public Acts, 1992...............4. App. 3

Opinion of the Tennessee Supreme Court......... App. 11

App. |

JURISDICTION

28 U.S.C. § 1257. State courts; certiorari

(a) Final judgments or decrees rendered by the highest

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

reviewed by the Supreme Court by writ of certiorari where the

validity of a treaty or statute of the United States is drawn in

question or where the validity of a statute of any State is drawn

in question on the ground of its being repugnant to the

Constitution, treaties, or laws of the United States, or where

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

claimed under the Constitution or the treaties or statutes of, or

any commission held or authority exercised under, the United

States.

UNITED STATES CONSTITUTION

Article V - Due Process

No person shall be . . . deprived of life, liberty, or

property, without due process of law; nor shall private property

App. 2

be taken for public use, without just compensation.

Article VI - Supreme Law of the Land.

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, and Thing in the

Constitution or Laws of any State to the Contrary

notwithstanding.

Amendment XIV, section 1.

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall

make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, without due

rrr

App. 3

process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.

PUBLIC ACTS, 1992

CHAPTER NO. 727

AN ACT to amend Tennessee Code Annotated, Title

42, Chapter 1, relative to helicopters in certain counties.

WHEREAS, the Great Smoky Mountains National Park

is an invaluable natural resource for this State and for the nation,

containing scenery of breathtaking beauty and majesty and a

great variety of scenic and ecologically important flora and

fauna; and

WHEREAS, millions of people have visited the Great

Smoky Mountains National Park to enjoy its natural beauty; and

WHEREAS, a tourism industry has grown in the

Tennessee counties in which part of the Great Smoky

Mountains National Park is located: and

App. 4

WHEREAS, a large number of people have taken up

residence in these counties to enjoy the natural scenery and to

work in the tourism industry and other industries thriving in

those areas; and

WHEREAS, because of this influx of people, a number

of towns have grown into cities, creating the advantages and

problems that arise with the growth of urban populations; and

WHEREAS, these counties and their citizens have

invested great sums of money to provide lodging, restaurants

and entertainment to attract the business of these people visiting

the Great Smoky Mountains National Park; and

WHEREAS, the economies of these counties rely on

income generated by the tourist industry; and

WHEREAS, the scenic beauty of the Great Smoky

Mountains National Park has attracted a number of helicopter

operations that carry tourists from heliports located on the main

roads near population centers in these counties to view the park

OO

App. 5

from the air; and

WHEREAS, the use of this land for helicopter

Operations is inconsistent with the development of the tourist

industry in those counties because the helicopters disturb the

peace and quiet and interrupt the enjoyment of the area by most

tourists; and

WHEREAS, the use of this land for helicopter

Operations is inconsistent with the residential development in

those counties because the helicopters pose a safety hazard to

residents in their homes and to motor vehicle operators on the

area roads and highways, disturb the peace and quiet and

interrupt the enjoyment of the area by residents in their homes

and places of work, and interfere with the operation of schools,

funeral ceremonies and other public events: and

WHEREAS, the counties in which the Great Smoky

Mountains National Park is located experience a unique

problem with helicopter operations that Carry tourists because

App. 6

the size and inaccessibility of the park encourages sightseeing by

helicopter; and

WHEREAS, helicopter flights to and from health care

institutions provide an important medical benefit for residents

and visitors and can often mean the difference between life and

death of a patient, so that the public benefit from such flights

outweighs the problems of noise and safety; now, therefore,

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE

STATE OF TENNESSEE:

SECTION 1. Tennessee Code Annotated, Tile 42,

Chapter 1, is amended by adding the following sections as a

new part.

SECTION 2. As used in this act, unless the context

otherwise requires:

(1) "Heliport" means land from which

helicopters take off and land. Heliport does not include :

heliports operated by a health care institution as defined

in Section 68-11-102(5) or land on which a helicopter

a ee Ns eT eee i ENT COREE

App. 7

makes a landing required by an emergency; and

(2) “Tourist resort county" means a county

having more than five percent (5%) of its territory

located within the boundaries of a national park

established pursuant to 16 U.S.C. § 403.

SECTION 3.

(a) Land in a tourist resort county within nine

(9) miles of the boundary of a national park established

pursuant to 16 U.S.C. § 403 cannot be used as a

heliport.

(b) The department of transportation shall not

issue or renew licenses pursuant to chapter 2 of this title

for any heliport located on land subject to the

prohibition in subsection (a), except that licenses may be

renewed for heliports allowed to continue to operate

under Section 4 of this act.

SECTION 4. Notwithstanding the provisions of Section

App. 8

13-7-208 or any other law to the contrary, a heliport operating

as of the effective date of this act that is in violation of Section

3(a) is declared a public nuisance and shall be abated, removed

or changed to conform with this act by July 1, 1994. Such

heliports may continue to operate until that date provided:

(a) The heliport is not extended or expanded;

and

(b) Ifthe use of the land or any portion thereof

as a heliport is discontinued for a period of six (6)

months or changed, any future use of the land shall be

in conformity with this act.

SECTION 5. Any heliport operated in violation of this

part shall be deemed a public nuisance causing irreparable injury

to the state, the county in which the heliport is located,

municipalities located in that county and the residents of the

county. In addition to any other remedies or rights of action

possessed by any person or governmental unit, persons who

App. 9

reside on land subject to the prohibitions in this act shall have a

private right of action against a person operating a heliport in

violation of this act and shall have the right to seek injunctive

relief as allowed by law, to recover damages for nuisance, and

to recover costs and attorneys fees if the resident is the

prevailing party.

SECTION 6. The provisions of this act shall not affect

existing or future land use restrictions adopted by an

incorporated city or town in a tourist resort county greater than

those stated in this act.

SECTION 7. The provisions of this act shall not apply

to any county which has county-wide zoning. If a county

adopts county-wide zoning after the effective date of this act,

then the provisions of this act shall not be applicable to such

county.

SECTION 8. If any provision of this act or the

application thereof to any person or circumstance is held invalid,

App. 10

such invalidity shall not affect other provisions or applications

of the act which can be given effect without the invalid

provision or application, and to that end the provisions of this

act are declared to be severable.

SECTION 9. This act shall take effect upon becoming

a law, the public welfare requiring it.

PASSED: April 9, 1992.

ee

App. 11

FILED

MARCH 19, 1997

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

BOBBY RIGGS and M-HELICOPTERS

OF TENNESSEE, INC..,

Plaintiffs- Appellees,

Vs.

Attorney General and Reporter,

CARL JOHNSON, Commissioner

of the Tennessee Department of

)

)

)

)

)

)

)

CHARLES W. BURSON, Tennessee )

)

)

)

Transportation, )

)

)

Defendants-Appellants.

OPINION

COURT OF APPEALS REVERSED:

TRIAL COURT JUDGMENT

REINSTATED.

ANDERSON, J

App. 12

We granted this appeal to decide whether a state statute’

prohibiting the use of land for a heliport within nine miles of the

boundary of a national park is constitutional and, if so, whether

it is preempted by federal law.

The trial court held the statute was constitutional and

was a regulation of the use of land and therefore was not

preempted by the Federal Aviation Act. The court, therefore,

dismissed the plaintiffs’ action to enjoin enforcement of the

statute. The Court of Appeals reversed, deciding that it must

accept as true the complaint’s legal conclusions as to

preemption and constitutionality, and remanded the case for an

evidentiary hearing.

For the reasons that follow, we conclude that the state

statute does not violate due process or equal protection under

the Tennessee or United States Constitutions; does not suspend

general law in violation of the Tennessee Constitution; and is

1 Tenn. Code Ann. § 42-8-101 through -105 (1993).

App. 13

not preempted by federal law. We have further determined that

in addressing the motion to dismiss, the trial court was not

required to accept as true the plaintiffs’ asserted legal

conclusions that the law lacked a rational basis and was

preempted.

Accordingly, the judgment of the Court of Appeals is

reversed, and the judgment of the trial court is reinstated.

BACKGROUND

The plaintiffs, Bobby Riggs and M-Helicopters of

Tennessee, Inc., own and operate a heliport in Sevier County,

Tennessee, from which they launch helicopters which carry

tourists to, over, and from the Great Smoky Mountains

National Park. The heliport is located within nine miles of the

boundary of the national park.

In early 1992, the Tennessee legislature enacted Tenn.

Code Ann. § 42-8-101, et seg., which prohibited the helicopter

touring operations of the plaintiffs after July 1, 1994. In June

-

App. 14

of 1994, the plaintiffs filed a declaratory action in the Sevier

County Circuit Court challenging the constitutionality of the

statute, which provides in part:

42-8-102. Certain land not to be used as

heliport-- Heliports on such land.--(a) Land in

ee ee ' ' ; er blished

pursuant to 16 U.S.C. §403 cannot be used as a

heliport.

42-8-103. Violations--Heliport deemed

nuisance--Abatement, removal, conformity.

-- Notwithstanding the provisions of § 13-7-208

or any other law to the contrary, a heliport

operating as of April 23, 1992, that is in

violation of § 42-8-102(a) is declared a public

nuisance and shall be abated, removed or _

changed to conform with this chapter by July 1,

(Emphasis added).

The plaintiffs alleged that the statute violated due

process and equal protection under the United States and

Tennessee Constitutions; that it suspended general law in

violation of article XI, section 8 of the Tennessee Constitution;

App. 15

and that it was preempted by the Federal Aviation Act. The

plaintiffs also argued that they were permitted to maintain a

non-conforming use pursuant to Tenn. Code Ann. § 13-7-

208(b). The defendants filed a motion to dismiss the complaint

for failure to state a claim upon which relief could be granted.

After reviewing the statute and its preamble, and hearing

arguments from both parties, the trial court granted the

defendants’ motion to dismiss the complaint. The trial court

found that the statute did not violate the Tennessee or United

States Constitutions; that it was a regulation of the use of land

that was not preempted by federal law; and that the plaintiffs

were not entitled to relief under Tenn. Code Ann. § 13-7-208(b)

as a non-conforming use.

On appeal, the Court of Appeals apparently accepted the

plaintiffs’ conclusory legal allegations as true and held:

[t]he allegations of the complaint set forth the

elements for claims of preemption, due process

and equal protection, and an unconstitutional

suspension of general law. Our decision is not

App. 16

to be construed to say the statutes are free or

not free of constitutional defects. We are

remanding the case for the parties to be afforded

the opportunity to introduce any evidence which

is material and pertinent in considering the

validity of the statute.

We granted the defendants’ appeal to address the

constitutionality of the statute, the federal preemption question,

and to clarify the standard to be applied by a court in addressing

a motion to dismiss a complaint which contains conclusory

assertions that a statute is unconstitutional.

MOTION TO DISMISS

The first question we must address is the standard to be

applied by a court in addressing a motion to dismiss a complaint

which contains legal conclusions. We begin our analysis by

examining the purpose of a motion to dismiss a complaint for

failure to state a claim upon which relief can be granted. Such

a motion pursuant to Tenn. R. Civ. P. 12.02(6) tests the legal

sufficiency of a complaint; it admits the truth of all relevant and

material allegations, “but asserts that such facts do not

App. 17

constitute a cause of action as a matter of law.” Pursell v. First

American National Bank et al, = S.W.2d (Tenn.

1996)(emphasis added).

In ruling on such a motion, courts must construe the

allegations in the plaintiff's favor and accept allegations of fact

as true. However, the inferences to be drawn from the facts or

the legal conclusions set forth in a complaint are not required to

be taken as true. Dobbs v. Guenther, 846 S.W.2d 270, 273

(Tenn. App. 1992).

The plaintiffs’ allegations that the statute violated due

process and equal protection under the United States and

Tennessee Constitutions and suspended general law in violation

of the Tennessee Constitution were legal conclusions that

should not have been taken as true. As recognized by beth

parties, these constitutional issues required a determination of

whether the legislature had a rational basis for passing the

statute. In this regard, if any reasonable justification for the law

App. 18

may be conceived, it must be upheld by the courts. State v.

Tester, 879 S.W.2d 823, 830 (Tenn. 1994); see Newton v. Cox,

878 S.W.2d 105, 110 (Tenn.), cert. denied, 115 S.Ct. 189, 130

L.Ed. 2d 122 (1994).

Here, the trial court correctly applied this analysis in the

context of the defendant’s motion to dismiss under Tenn. R.

Civ. P. 12.02(6). In Lilly v. Smith, 790 S.W.2d 539 (Tenn.

App. 1990), for example, the plaintiff raised an equal protection

challenge to the State’s grade policy for admission into state

nursing schools. The trial court granted the defendant’s motion

to dismiss under Rule 12.02(6). The Court of Appeals upheld

the dismissal upon finding that there was a “rational relationship

between the admissions requirement and legitimate state

policy.”

Likewise, the plaintiffs’ assertion that the statute was

"preempted by the Federal Aviation Act was a legal conclusion

that should not have been accepted as true. Whether a federal

App. 19

law expressly or implicitly preempts a state law requires an

investigation of Congress’s intent in passing federal legislation.

See Cipollone v, Liggett Group, Inc., 505 U.S. 504, 112 S.Ct.

2608, 2617, 120 L.Ed.2d 407 (1992). Here, both parties

argued their interpretations of the Federal Aviation Act and

offered supporting legal authority for whether the Act expressly

or implicitly preempted the statute. The trial court properly

addressed the preemption issue in the context of the motion to

dismiss, without an evidentiary hearing. See e.g., Broyde v,

Gotham Tower, Inc,, 13 F.3d 994 (6th Cir.), cert. denied, 114

S.Ct. 2137, 128 L.Ed.2d 866 (1994).

Accordingly, we conclude that the Court of Appeals

erred in accepting the legal conclusions in the plaintiffs’

complaint as true and in remanding the case for an evidentiary

hearing, and that the trial court acted correctly in addressing all

the legal issues in the motion to dismiss.

App. 20

PREEMPTION

The preemption doctrine stems from the Supremacy

Clause of the United States Constitution: “[t]he Constitution

and laws of the United States which shall be made in Pursuance

thereof ... shall be the supreme Law of the Land.” U.S. Const.,

art. VI, cl. 2. A state law which conflicts with federal law,

therefore, is preempted or “without effect.” See Maryland v.

Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2128, 68

L.Ed.2d 576 (1981).

The plaintiffs charged that Tenn. Code Ann. § 42-8-

101, et seq., is aimed at the “flight of aircraft and aircraft noise”

and is therefore preempted by the Federal Aviation Act. See

49 U.S.C. §40101-41901 (Supp. 1996).2 The defendants

maintained, and the trial court found, that the statute is not

preempted because it relates to the use of land and not the flight

of aircraft. The Court of Appeals, however, ruled that the

2 The Federal Aviation Act of 1958. as amended by the Noise Control Act of 1972,

was formerly codified at 49 U.S.C. §§ 1301-1357.

App. 21

elements of a preemption claim had been alleged and that an

evidentiary hearing was required to determine whether the

Statute is directed at aircraft noise.

Consideration of preemption issues under the

Supremacy Clause “start[s] with the assumption that the historic

police powers of the States [are] not to be superseded by ...

Federal Act unless that [is] the clear and manifest purpose of

Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218,

230, 67 S. Ct. 1146, 1152, 91 L.Ed. 1447 (1947). The purpose

of Congress in enacting a federal law is, therefore, the “ultimate

touchstone” of preemption analysis. Retail Clerks Intern. Ass’n

y. Schermerhom, 375 U.S. 96, 103, 84 S.Ct. 219, 222, 11

L.Ed.2d 179 (1963). The intent of Congress may be “explicitly

stated in the statute’s language or implicitly contained in its

structure and purpose.” Jones v. Rath Packing Co., 430 U.S.

519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977).

However, where there is no express preemption provision in a

App. 22

federal statute, a state law is implicitly preempted if that law

actually conflicts with the federal law, see Pacific Gas & Elec.

Comm'n, 461 U.S. 190, 204, 103 S.Ct. 1713, 1722, 75 L.Ed.2d

752 (1983), or if the federal law so thoroughly occupies the

legislative field “as to make reasonable the inference that

Congress left no room for the States to supplement it.” Fidelity

Federal Savings & Loan Ass’n v, De la Cuesta, 458 U.S. 141,

153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982); see also

Watson v. Cleveland Chair Co., 789 S.W.2d 538, 542 (Tenn.

1989) (discussing parameters of preemption doctrine).

The Federal Aviation Act reflects congressional intent

to place exclusive authority for regulating the airspace above

the United States with the Federal Aviation Administration. 49

U.S.C. §40103(b)(1).

Applying the foregoing principles, the plaintiffs concede

that the Federal Aviation Act does not expressly preempt Tenn.

App. 23

Code Ann. § 42-8-101, et seg., but instead claim that the law

was implicitly preempted under the rule established in City of

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

S.Ct. 1854, 36 L.Ed.2d 547 (1973). There, the City of Burbank

adopted an ordinance making it unlawful for jet aircraft to take

off from the Hollywood-Burbank airport between the hours of

11:00 p.m. and 7:00 a.m. The lower federal courts found that

the curfew sought to regulate aircraft noise by restricting flights

and held that the ordinance was preempted by federal law. Id.,

411 US. at 626, 93 S.Ct. at 1856.

The Supreme Court agreed. The Court said that the

Federal Aviation Act gave the Federal Aviation Administration

control over the regulation of aircraft noise, and that it and

other federal agencies had “comprehensively regulated” in this

area. Thus, the Court concluded that the “pervasive nature of

the scheme of federal regulation of aircraft noise” preempted

the City of Burbank’s curfew, which had sought to regulate

App. 24

noise by restricting flights. Id., 411 U.S. at 633-634, 93 S.Ct.

at 1859-1860.

In claiming that the statute in question is aimed at the

regulation of “the flight of aircraft and aircraft noise,” the

plaintiffs rely in great measure on the implied preemption

holding in City of Burbank, supra. The defendants, however,

maintain that City of Burbank does not extend to state laws

which, like this statute, regulate the use of land and not the

flight or noise of aircraft. In this respect, the defendants note

the limitation of City of Burbank as expressed by the dissenting

justices:

A local governing body could ... 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

ts ieniatiee! 2

App. 25

of aircraft noise contro]. Yet if this may be

done, the Court’s opinion surely does not

satisfactorily explain why a local governing body

may not enact a far less ‘intrusive’ ordinance

such as that of the city of Burbank.

Id., 411 U.S. at 653, 93 S.Ct. at 1869 (Rehnquist, J., dissenting)

(emphasis added).

Other jurisdictions have elaborated on this point and

have limited the application of City of Burbank. In our own

Sixth Circuit, in Gustafson v. City of Lake Angelus, 76 F.3d

778 (6th Cir.), cert. denied, 117 S.Ct. 81, 136 L.Ed.2d 39

(1996), the plaintiff claimed that ordinances which prohibited

the operation of seaplanes on a lake near his home were

preempted by the Federal Aviation Act. The district court

agreed and granted summary judgment in favor of the plaintiff

on the basis of City of Burbank. The Sixth Circuit reversed:

App. 26

is a matter left primarily to local control. In

contrast to the pervasive scheme of federal

regulation of aircraft noise found in Burbank,

we fail to identify any language in the Act, the

regulations promulgated pursuant to the Act, or

the legislative history of the Act, which by

implication preempts enforcement of the City’s

ordinances. .. .

Id., 76 F.3d at 784 (emphasis added). Accordingly, the Sixth

Circuit concluded that “there is a distinction between the

regulation of the navigable airspace and the regulation of

ground space to be used for aircraft landing sites.” Id., 76 F.3d

at 789.

Similarly, in Condor Corp. v, City of St. Paul, 912 F.2d

215 (8th Cir. 1990), when a request to use the property as a

heliport for helicopter services was denied by the city, Condor

Corporation challenged the restrictions as preempted under the

Federal Aviation Act. The district court denied relief, and the

Eighth Circuit Court of Appeals affirmed: “We see no conflict

between a city’s regulatory power over land use, and the federal

regulation of airspace, and have found no case recognizing a

App. 27

conflict.” Id., 912 F.2d at 215. See also Faux-Burhans v.

County Com’rs of Frederick County, 674 F. Supp. 1172 (D.

Md. 1987), affd., 859 F.2d 149 (4th Cir. 1988)(county

restrictions on size and scope of private airfield not preempted).

In a state court case, Garden State Farms, Inc. v. Bay,

390 A.2d 1177 (N.J. 1978), the plaintiff sought to construct a

heliport on property located near “a heavily traveled

thoroughfare, opposite a residential neighborhood.” [d., at

1179. An ordinance was adopted prohibiting the use of land in

the area for a heliport because the “general quality of life would

be adversely affected by low-level air traffic with its

concomitant increased noise, air pollution and automobile traffic

and its anticipated distraction and anxiety to residents.” Id.

The New Jersey Supreme Court held the ordinance was

not preempted by the Federal Aviation Act. The Court noted

that the Act did not “reach down to the level of the location of

small, relatively isolated, privately owned helistops or

App. 28

heliports,” and stressed that while “it is clear that state and

local authority over the ‘operation and navigation of aircraft’ is

supplanted by . . . federal regulation, . . . significant local power

.” Id, at 1180-

1181 (emphasis added).

Returning to this case, an analysis of the Tennessee

statute and its preamble indicates that the law regulates the use

of land and not the flight of aircraft or the use of airspace. The

law restricts “land in a tourist resort county within nine miles of

the boundary of a national park” from being “used as a

heliport.” Tenn. Code Ann. § 42-8-102(a). The preamble to the

law reflects that the Legislature had several interests under

consideration including the noise, disruption and safety risks

caused by locating heliports near main roads and heavily

populated areas. It is clear that the police powers of the

Legislature include restricting use of property if it is reasonably

related to the public health, safety, and welfare. See Spencer-

App. 29

Sturla Co, v, City of Memphis, 155 Tenn. 70, 83, 290 S.W.

608, 612 (1927). Our examination of the language of the

statute indicates it is not expressly preempted by the Federal

Aviation Act, and it does not establish a curfew or restrict

flights in a manner that is implicitly preempted under the City of

Burbank decision.

Our conclusion is shared by the Federal Aviation

Administration, which stated in a letter offered in evidence by

the defendants, that “the FAA has concluded that the statute as

written is not preempted on its face by the express preemption

provisions of section 105 of the Federal Aviation Act of 1958,

as amended. . . . Likewise the statute is not preempted... by

implication under the holding of City of Burbank v, Lockheed

Air Terminal, Inc., 411 U.S. 624 (1973).” We observe that

interpretations of statutes by administrative agencies are

customarily given respect and accorded deference by courts.

App. 30

Chevron U.S.A. v. Natural Resources Defense Council, 467

U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984).

Accordingly, we agree with the persuasive federal and

state authority that has upheld laws which restrict the use of

land for the operation of helicopters or other aircraft. The

plaintiffs seek to distinguish these cases as involving restrictions

on future uses, and not, as in this case, an existing use. This

distinction, however, does not alter our conclusion. First, a

land use law, if otherwise constitutional, may permissibly

restrict or eliminate an existing use of land. See 101A C.J.S.

Zoning and Land Planning §157; Rives v, City of Clarksville,

618 S.W.2d 502, 508-509 (Tenn. App. 1981)(“a zoning

ordinance that restricts a future use and one that requires

existing uses to stop after a reasonable time is not a difference

in kind, but one of degree”). Second, although the preemption

analysis may have differed if the statute eliminated an existing

use based solely on aircraft noise, see Wright v. County of

App. 31

Winnebago, 391 N.E.2d 772, 777 (IIL. App. 1979), the law, as

we have discussed, is related to numerous legislative interests.

See Gustafson, 76 F.3d at 791; Garden State Farms, 390 A.2d

at 1180-1181. |

Accordingly, we hold that Tenn. Code Ann. § 42-8-

101, ¢t seq., is not preempted by federal law under the

Supremacy Clause of the United StateS Constitution. Having so

held, we must now address whether the law withstands

constitutional scrutiny.

DUE PROCESS

The plaintiffs charge that the statute lacks a rational

basis and violates due process under the Fourteenth Amendment

to the United States Constitution and article I, section 8 of

Tennessee Constitution. The defendants counter that the law is

rationally related to the health, safety, and welfare of tourists

and residents in the tourist resort counties. The defendants

point to the preamble to the law which reflects the Legislature’s

App. 32

concern with the rapid growth of tourism in the resort counties

and the disruption and safety risks caused by locating heliports

in heavily populated centers and near main roads.

This Court has held that the “law of the land” provision

of article I, section 8 of the Tennessee Constitution “is

synonymous with the due process clause of the Fourteenth

Amendment to the United States Constitution.” Newton v.

Cox, 878 S.W.2d at 110; State ex rel. Anglin v. Mitchell, 596

S.W.2d 779, 786 (Tenn. 1980). Thus, unless a fundamental

right is implicated, a statute comports with substantive due

process if it bears “a reasonable relation to a proper legislative

purpose” and is “neither arbitrary nor discriminatory.” Newton

v. Cox, 878 S.W.2d at 110.

Here, the parties recognize that the statute does not

implicate a fundamental right, and that the “rational basis”

analysis applies to the plaintiffs’ due process challenge. Id.

App. 33

Thus, the question we must address is whether the statute is

reasonably related to a legitimate legislative purpose.

We begin our analysis with the presumption that an act

of the General Assembly is constitutional. See Petition of

Burson, 909 S.W.2d 768 (Tenn. 1995); Davis-Kidd

Booksellers, Inc. v. McWherter, 866 S.W.2d 520 (Tenn. 1993).

In evaluating a statute, we must indulge every presumption and

resolve every doubt in favor of constitutionality. Petition of

Burson, 909 S.W.2d at 775. We also recognize that the

Legislature has the authority to enact laws for the public safety,

comfort and welfare. Spencer-Sturla Co, v, City of Memphis,

155 Tenn. at 83, 290 S.W. at 612; see also Fallin v. Knox

County Bd, of Com’rs, 656 S.W.2d 338 (Tenn. 1983).

The preamble to the statute reflects these legitimate

legislative interests of public safety, comfort, and welfare. It

notes that the growth of the tourist industry in the resort

counties near the Great Smoky Mountains National Park has

App. 34

attracted heliport operations of the sort owned and operated by

the plaintiffs. Moreover, it indicates that the location of these

heliports near heavily populated areas and main roads has, in the

Legislature’s determination, disturbed the peace and enjoyment

of tourists and residents, interrupted enjoyment of the area by

tourists, and created a safety risk to tourists and residents. The

Statute seeks to prevent this harm not by regulating where or

when helicopters may fly, but by restricting where land may be

used to locate heliports.

In Gustafson, supra, the Sixth Circuit addressed whether

the ordinance prohibiting the operation of seaplanes on a lake

survived due process scrutiny and determined that its review

was limited to “whether the legislative action [was] rationally

related to legitimate land use concerns.” The court concluded

that the city’s concern with the “noise, danger, apprehension of

danger, . . . destruction of property values, and interference

App. 35

with other lawful uses . . . fulfill[ed] the requirements of this

test.” Id., 76 F.3d at 791.

Similarly, we conclude that the restriction on the

location of heliports contained in this statute is reasonably

related to the legitimate legislative interests of securing the

public safety, comfort, and welfare. The plaintiffs’ arguments

that there is no evidence in the record to establish a genuine

safety risk from helicopter operations, and that the law will

increase any potential risk and disruption by forcing longer

flights, do not establish that the statute is irrational. To the

contrary, under the rational basis test, specific evidence is not

necessary to show the relationship between the statute and its

purpose. See Newton v. Cox, 878 S.W.2d at 110. Rather, this

Court asks only whether the law is reasonably related to proper

legislative interests. Id. We conclude that it is.

App. 36

EQUAL PROTECTION

This Court has said that “[bJoth the United States and

Tennessee Constitutions guarantee to citizens the equal

protection of the laws.” Brown v. Campbell County Bd. of

Educ., 915 S.W.2d 407, 412 (Tenn. 1995), cert. denied, 116

S.Ct. 1852, 134 L.Ed.2d 952 (1996). Article I, section 8 and

article XI, section 8 of the Tennessee Constitution confer the

same protections as the Fourteenth Amendment to the United

States Constitution. See Brown v. Campbell County Bd. of

Educ., 915 S.W.2d at 413.

The plaintiffs allege that the statute improperly classifies

helicopter operations within nine miles of the Great Smoky

Mountains National Park from all others in the state of

Tennessee in violation of equal protection of the laws. They

argue that “the failure of the statute is that it does not attempt

to apply the legislature’s concern for noise and safety to all the

commercial heliports in the state.” On the other hand, the

App. 37

defendants maintain that the statute’s classification is reasonably

related to a legitimate legislative interest and therefore valid.

In Tennessee Small School Systems v. McWherter, 851

S.W.2d 139, 153 (Tenn. 1993), we said that “(t]he concept of

equal protection espoused by the federal and of our state

constitutions guarantees that ‘all persons similarly

circumstanced shall be treated alike.’” (quoting ES. Royster

Guano Co, v, Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 562,

64 L.Ed. 989 (1920)). Things which are different in fact or

opinion are not required by either Constitution to be treated the

same. Tennessee Small School Systems, 851 S.W.2d at 153

(citing, Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382,

2394). In this regard:

The initial discretion to determine what is

‘different’ and what is ‘the same’ resides in the

legislatures of the States, and legislatures are

given considerable latitude in determining what

groups are different and what groups are the

same.... In most instances the judicial inquiry

into the legislative choice is limited to whether

App. 38

the classifications have a reasonable relationship

to a legitimate state interest. . . .

851 S.W.2d at 153 (citations omitted).

We have consistently followed the framework developed

by the United States Supreme Court, which, depending on the

nature of the right asserted or a class of persons affected,

applies one of three standards of scrutiny: (1) strict scrutiny, (2)

heightened scrutiny, and (3) reduced scrutiny or the rational

basis test. Newton v. Cox, 878 S.W.2d at 109. Strict scrutiny

analysis is required “only when [a legislative] classification

interferes with the exercise of a ‘fundamental right’ or operates

to the peculiar disadvantage of a ‘suspect class.’” Id.

Here, the parties agree that the statute does not interfere

with a fundamental right nor does it involve a suspect class;

thus, like the due process challenge, the equal protection

analysis of this state statute involves the rational basis test.

Under this standard, “[i]f some reasonable basis can be found

for the classification [in the statute] or if any state of facts may

App. 39

reasonably be conceived to justify it, the classification will be

upheld.” Tennessee Small School Systems v. McWherter, 851

S.W.2d at 153; Newton v. Cox, 878 S.W.2d at 110. This

standard, compared to the heightened or strict scrutiny, places

upon those challenging a statute “the greatest burden of proof.”

Brown v. Campbell County Bd. of Educ., 915 S.W.2d at 413.

As we have discussed, the statute restricts the location

of heliports within nine miles of the Great Smoky Mountains

Park in an effort to achieve legitimate interests related to the

public safety, health, and welfare. The preamble to the statute

indicates that the Great Smoky Mountains National Park is “an

invaluable natural resource” which has attracted growing

numbers of tourists and residents. It also states that locating

heliports in the heavily populated areas and near main roads

poses a “unique problem,” as it creates a disruption and safety

risk to tourists and residents. Although the plaintiffs contend

that there is no evidence to support classifying helicopter

App. 40

operators within nine miles of the park differently from any

others in Tennessee, such evidence is unnecessary; the relevant

inquiry is whether there is a reasonably conceivable set of facts

to justify the classification within the statute. We have

concluded that there is such a set of facts which justifies the

classification.

SUSPENSION OF LAWS

Article XI, section 8 of the Tennessee Constitution

provides:

General laws only to be passed. The Legislature

shall have no power to suspend any general law

for the benefit of any particular individual, nor

to pass any law for the benefit of individuals

inconsistent with the general laws of the land;

nor to pass any law granting to any individual or

individuals, rights privileges, [immunities] or

exemptions other than such as may be by the

same law extended to any member of the

community, who may be able to bring himself

within the provisions of such law.

The plaintiffs charge that the statute suspended general law in

violation of article XI, section 8 of the Constitution.

App. 41

Specifically, the plaintiffs argue that the law suspended Tenn.

Code Ann. § 13-7-208(b), which provides for the continuation

of non-conforming uses following the enactment of zoning

ordinances, Tenn. Code Ann. § 42-2-211, which governs the

licensing of airports, and the general “right to earn a

livelihood.” The defendants maintain that the statute does not

suspend a general law and, in any event, is rationally related to

legitimate legislative interests.

Article XI, section 8 is implicated when a statute

“contravene[s] some general law which has mandatory

statewide application.” Civil Service Merit Board v, Burson,

816 S.W.2d 725, 727 (Tenn. 1991); see Knox County ex rel.

Kessell v. Lenoir City, 837 S.W.2d 382 (Tenn. 1992). Ifa

statute does suspend a general law, article XI, section 8 is not

violated unless it creates classifications which are capricious,

3 The only claim in the plaintiffs’ complaint was that Tenn. Code Ann. § 42-8-

101, et seg., suspended Tenn. Code Ann. § 13-7-208(b).

App. 42

unreasonable, or arbitrary. Civil Service Merit Board, 816

S.W.2d at 727. If any reason can be conceived to justify the

classification, it will be upheld as reasonable. Stalcup v. City of

Gatlinburg, 577 S.W.2d 439 (Tenn. 1978).

We need not determine whether the provisions cited by

the plaintiffs are laws with mandatory statewide application. As

already discussed, article XI, section 8 is commonly cited as one

of two provisions which guarantee equal protection of the law

under the Tennessee Constitution. The analysis for determining

whether a statute suspends a general law in violation of the

Tennessee Constitution is similar to that for determining

whether there is a rational basis for a classification. As we have

held, the statute, and the classification therein, is rationally

related to several legitimate legislative interests. Thus, we

conclude that it does not violate article XI, section 8 of the

Tennessee Constitution.

App. 43

TENN. CODE ANN. §13-7-208(b) _

Finally, the plaintiffs argue that they have a statutory

right to maintain their non-conforming use after the enactment

of the statute. They rely on Tenn. Code Ann. § 13-7-208(b),

which states:

In the event that a zoning change occurs in any

land area where such land area was not

previously covered by any zoning restrictions of

any governmental agency of this state or its

political subdivisions, and such zoning

restrictions differ from zoning restrictions

imposed after the zoning change, then any

industrial, commercial, or business establishment

in operation, permitted to operate under zoning

regulations or exceptions thereto prior to the

zoning change shall be allowed to continue in

operation and be permitted; provided, that no

change in the use of land is undertaken by such

industry or business.

The trial court held that the plaintiffs were not entitled to relief

under this section and the Court of Appeals affirmed. The

Court of Appeals held that the statutory provision was limited

to municipal zoning ordinances and that, in any event, the

provision was specifically addressed and rejected by the statute.

App. 44

A basic principle of statutory construction is to ascertain

and give effect to legislative intent without unduly restricting or

expanding a statute’s coverage beyond its intended scope.

Owens vy. State, 908 S.W.2d 923, 926 (Tenn. 1995). This

means examining the language of a statute and applying its

ordinary and plain meaning. Id. Moreover, we must presume

that the Legislature knows of its prior enactments and knows of

the existing state of the law at the time it passes legislation.

Wilson v. Johnson County, 879 S.W.2d 807, 810 (Tenn. 1994).

As noted by the Court of Appeals, the statute

specifically excluded the provisions of Tenn. Code Ann. § 13-7-

208(b). See Tenn. Code Ann. § 42-8-103, which clearly states:

“Notwithstanding the provisions of §13-7-208 or any other law

to the contrary ....” The plain language of the statute provides

that heliports which did not conform to the nine-mile restriction

were to be eliminated within the time period set forth in the

statute. Moreover, the terms of the statute specifically reject

App. 45

the notion that a non-conforming use could continue under any

other provision of law. We conclude that the Legislature

intended to exclude Tenn. Code Ann. § 13-7-208(b). It follows

that the plaintiffs are not entitled to relief.

CONCLUSION

For the foregoing reasons, we hold that Tenn. Code.

Ann. § 42-8-101, et seg., does not violate either the United

States or Tennessee Constitutions and that the tral court

properly granted the defendants’ motion to dismiss. The

judgment of the Court of Appeals is reversed, and the judgment

of the Sevier County Circuit Court is reinstated. Costs of the

appeal are taxed to the plaintiffs.

RILEY ANDERSON, JUSTICE

Concur:

Birch, C.J.

Drowota and Reid, JJ.