Petition for Writ of Certiorari — Jankovich v. Indiana Toll Road Commission

Ao: ‘ Vin .

yt

ee eT OT: 6

IN THE

Supreme Court of the United States

Ocronen TERM, 19634

Nick JANKovICH and Pati. JANKovICH. Co-PARtNvers,

Doin BUSINESS As CALUMET AVIATION Coxppasy,

‘ Petit leiaed Px.

: |

\

Ixpiana Tort: Roa ComMisston, Respondent,

PETITION FOR A WRIT OF CERTIORARI TO THE

. SUPREME COURT OF INDIANA

STRALEY Torre. .

NOU Tfohtasan Avene

Heamiiond. Indiana

Bervarp DUNAY

QI? Dupont Cirele Buildine

Washington, PD. (. 2OIS6

Roperr ©. Lesrren

1908 Sunderland Place

w Washington, DL ©.

Attorneys for Palitioners

Press cF Byron S. Avanis, WASHINGTON, 12. C

So.

INDEX

E Page

Oprxtox OT sin cid gevessins Peeseneeensseeetawiesns soe

eS ee ee Shue 2

QUESTION PRESENTED 1.00.0... .ceeeceeees re seeks 2

Sratutes INVOLVED ...... SUR EP NE yee aoe ae eae

SINS = tha 5 ck Spend oe nice d o0k che de hc ckeecee eas 3

Reasons FOR GRANTING THE WRIT ..........0..000e0e- 9

SII op w Sk adc eens cess eeeeeeuon of Ee er eee 30

APPENDIX A: Opinion MO PN ook sk cckncawynss la

Appenoix B: Airport Zoning Ordinance of the City of

Gary ..... [On OeA POCO RECLAME R RECA eDEBeSERRSD bes lla

AppENDIX C: Excerpts from Federal Airport-Act .... 18a

Appenpix D: Indiana Tall Structures Act-........ ‘cit. oon

AppenpDIXx E: Indian Enabling Statute pertaining to the

adoption of Airport Zoning By a Municipality ... 30a

APPENDIX F’: Excerpts From fant Agreement Between

City of Gary and Civil Aeronautics Administration

of June 1949 eee rey a oy ee area eee 33a

AUTHORITIES CITED g

CASES: |

abie State Bank v. Bryan, 282 U.S. 765 .......:.... 28

Cramp v. Board of Public Instruction, 368 U.S. 278°. 27

Enterprise Irr. District v. Farmers Mut. Canal Co., 243

eR Se Pe I oe Paar eee cerewnee eds 29

Euclid v. Ambler Realty Co., 272 US. Sep errr 15

Fergneon v. Skrupa, 32 U.S. 726 ....2.....cccecee: oy

Goldblatt v. Town of Hempstead, 369 U.S. 590 ....11,14%

nee F. FOU cree Me Oe xn os oh bc dewscarcednuses 1]

Griggs v. Alleghany County, 369 U.S, 84 ...... 6; 11, 24, 27

ii . Index. Continued

: mans Page

f- Harrelt’s Candy Kitchen, Ine. v. Sarasoto- Manatee

; Airport Authority, 111 So. 2d 439 (Fla. (4959) . 13

Marsh v. Alabama, 326 U.S. 501 ...............00005 1a .

Minnesota v. National Tea Co., 309 US. 531 ae Tae 30

’ Mugler v. Kansas, 123 U.S. 623 Diiieeian wae ese +a 9, 10

Pennsylvania Coal Co. v. Mahon, 260-U.S. 393 ...... 9, 11

Sears, Roebuck & Co. v. Stiffe! Co., °2 U.S. Law Week :

4206 (S. Ct., Mareh 9; 1964) ... 2... ccc ccc cc eess 28

State Tax Commission v. Van Cott, 306 U.S. 511 .... 28°

United States v. Causby, 327 U.S. 256 .......... 9, 24, 27

United States v, Central: Kureka Mining Co., 357 US.

: RS a ray ee oe ee 11

Village of Euclid v. Ambler, 272 U.S. 365 ............ 9

Statutes: .

28 USC. I eas on Gia bs he aid iw ade Bis a0 2

The Federal Airport Act, as amended (60 § Stat. 170,

Te ment. TOR, @ OBL. FAITE). wesc cccveces 3

The Indiana Tall Structares Act (5 Burns. Ind. Stat.

«14-327, et seq. SA LD as teversccecves yo

Ordinance No. 2897 of Gary, Indiana .............. 2, 5-6

Public Law 83- 280, March il, 1964 -

UR Re wine be abe are deeb dees hen ees 66 4c Keb eee oes 22

el ee Ca waved cee wees 8

¢ ‘ONGRESSIONAL Rerorts snp Hearings: :

H. Rep. No. 784, 78th i 13

A. Rep. No. 1002, 88th Cong., Ist sess. ..... pateanene 18

H. Conf. Rep. No. 1154, 88th Cong. 2d Sess. in 110 Daily

Cong. Ree. 3519 (Feb. 26, 1964) ........0....... 18

S. Rep. No. 446, 88th Cong., Ist Sess., 2,3 ......0... 18, 22

Hearings before the Aviation Subcommittee of the

Senate Commerce Committee on S. 1153, ‘88th

oe a ee a ee ee eee ze .

FeperaL Aylation AGENcy MATERIALS: °

FAA <Air Traffic Activity, Calendar 1962, 35 ........ ly

FAA Regulations. 14 CFR $151.9(b), 151.11(d),

RN ea Pea asia ik 5 vod wos me eed ae

FA N Small. Airports, 9 (1959) ......5......0.. henee

Index Continued ; iii -

amar on Page

PAA, Technical Standard Order No. N18 (TSO-N18)

dated April 26, 1950, entitled ‘‘Criteria For Deter-

mining Obstructions ‘to Air Navigation” ...... 19

National Airport Plan, Requirements for Fiscal Years

0 1963-1967, 1963 Supplement, FAA, (March 1963)

22, 25)

National Airport Plan, Requirements for Fiscal Years |

1963-1967, FAA, 101 (Ame TORS) ogo ncee eee 28, 2)

Statistical Review and Resume of Accidents, US Aw

Carriers, Calendar Year 1960, CAB 1963, re

| MISCELLAN ‘EOUS: 7

, Anno. 77 A.LR. 2d 1355, 1962-64 ....5....¢.020-00: 13 -

Hunter, The Conflicting ‘Interests of Airport Owner

‘And Nearby Property Owner, 11 Law & Contemp.

PO Ge ROOD kas 505} Cheer ene eeseene tens. 4, 10,13

Manion, Law of the Air, (i (1900) .....ccccccceces 14

Note, Zoning—The Airport And The Land Surround-

ing It-In The Jet Age, 48 Ky. L.J. 273 (1960) ...14, 16

Notice, State of Hlinois, Department of Aeronautics,

pe, ee Pee errrr YT ere Ter creer yy 17

Report of the Committee on ‘Airport Zoning and

Eminent Domain, December 18, 1930 ............ Y

Report of the President’s Airport Commission, The ©

Airport and Its Neighbors, 7 (May 16, 1962) ce nee

Rhyne, Airports and the Courts, 164 (1944) etree e 14, 16

Rhyne. Municipal Law, 489 (1957) ..... aac 12, 13, 14, 15

2 Yokely, Zoning Law and Practice, 43-45, 61-75 (1953) Bb

iN THE ©

‘Supreme Court of the Hnited States

, OCTOBER. TERM, 1963.

No.

Nick JANEOVICH and PatL JANKOVICH, Co-PARTNERS,

DoING BUSINESS as ‘CaLtsyeet Aviation Cowpayy.

\ : Petitioners,

, x " : :

dspuasa Tort Roap Cosscissiox, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF INDIANA |

Nick Jaukovich and Paul Jankovich. es-partiers.

doing business as Calumet Aviation Company. pray

that a writ of certiorari issue to review the judgment

of the Supreme Court of Indiana entered in the above-

entitled case on October 24. 1963.

“_. OPINION BELOW

The opinion of the Supreme Court of Indiana. Judge

Jackson dissenting, is revorted at. 193 N.E. 2d 237.

(infra, p. la}. No opinion was written by the Porter

Cireuit Court, Lake’ County. Indiana.

. ibe 'S TMX *, Bey Pets att, ties 4 ey) os Ps a aoe - —— a Pal Set :

EEL IR PRETEEN LSE Se IG UY EERE ESO ILE aS

-

2 : |

‘JURISDICTION |

The judgment of. the Indiana Supreme Court was

entered on October 24, 1963 (infra, p. 10a).’ Its order

denying rehearing was entered on December 17, 1963.

An order was entered on February 28, 1964 by Mr.

Justice Tom C. Clark extending the time for filing a

petition for a writ of certiorari to‘April 15, 1964. The

jurisdiction of this Court rests on 28 U.S.C. § 1257(3).

See, seis PP. 27-30.

‘QUESTION PRESENTED :

; - Whether a municipal ordinance which zones prop-

- erty adjacent to a publie airport for the purpose of

maintaining safe and unobstructed approaches to the

airport constitutes a valid exercise of the police power

or is a taking of property withoyvit compensation in

‘ violation of the Fourteenth Amendment of the United

/

States Constitution. . /

4 STATUTES INVOLVED

Ordinance No. 2897 of. Gary, Indiana, approved

September 20, 1949, is entitled: ‘‘An ordinance regu-

lating and restricting the height of structures, and

otherwise regulating the use of property in the vicinity

of the Gary Municipal Airport by creating.airport ap-

proach and turning zones and establishing the bound-

aries thereof; defining certain terms used therein;

providing for appeals therefrom; and imposing penal-

ties for violation thereof.’’ The ordinance is summar-

The practice of the Indiana Supreme Conrt is not to render a

judgment separate from the opinion. The directions contained at

the conclusion of the opinion constitute the judgment. . The direc-

tions are executed by the lower court upon certification to it of

the opinion.

<2

-

& | 3

_ ized in pertinent part in the Statement, infra, pp. 4-6,

and is set out in full in Appendix B, wifra, pp. 1la-

17a. The Federal Airport Act, as amended (60 Stat.

170, 78 Stat. 158, 49 U.S.C. § 1101) is set out. in perti-

nent part in Appendix C, infra, pp. 18a-23a. The

Indiana Tall Structures Act (5 Burns Ind. Stat. 140-

327 et seqg., 1963 Cum. Supp.) is set out in full in Ap-

pendix: D, infra, pp. 24a-30a.. The provision of the

Indiana: enabling statute pertaining to the adoption

of airport zoning. by a municipality (5 Burns Ind.

Stat. 14-442) is set.dut in full in — E, infra,

_ pp. 30a-32a.

“ STATEMENT

In October 1939, the City of Gary, Indiana, enacted

an ordinahce decfaring that it needs and shall acquire,

improve, operate, and maintain an airport (PI. ex.

- 1, R. 398). On May 29, 1947, the United States granted

land to Gary ‘‘for and in consideration of the develop-

ment and operation of the . . . demised premises as a

public airport in perpetuity ... and for the benefit

which shall accrue to the United States ... from the

99

continued use of such property as an airport...

(Pl. ex. 2, p. 1, R. 399). Automatic reversion of ‘the

title to the United States was provided ‘if and in

‘ the event that:the Administrator of Civil Aeronautics

or his successor in functiori determines that the prem-

ises have not been developed for airport purposes

within a reasonable period of time ..., or that after

- having been so developed the premises ‘have ceased to

be used or.are necessary for airport purposes’’ (PI.

ex. 2, p. 2, R. 399). Gary promised that ‘‘such air- ~

port will be operated as a public airport on fair and

reasonable terms and without unjust discrimination’”’

(ibid.). »

4

The demised land encompassed an area of approxi-

mately one square mile bounded on the southside by

the Grand Calumet River (infra, p. 2a). The master

plan of-the airport called for the construction of three

runways on this land, an east-west runway, a north-

west-southeast runway, and a north-south runway (PI.

_ ex. 10, R. 634). The east-west runway has not been

‘constructed (R. -619-620). The northwest-southeast

runway, planned for a length of 6,000 feet and a width

of 150 feet. has been constructed to a length of .4600

feet and a width of 100 feet (R. 620). The north-south

runway, immediately involved in this proceeding, is

planned for length of 3900 feet and a width of 150 feet

(tbid.). It has been constructed to a length of 3600

feet and a width of 100 feet; its original length just

. prior to 1950 was 3100 feet, which was extended in 1954

or 1955 by 300 feet on the north end and 200 feet on

.the south end, leaving 300 unconstructed feet at the

south end (R. 512, 541-542, 620, 662, 691, 695-696, 703).

Federal and municipal funds were expended for this

‘ airport construction (R. 526, 622, Def. ex. P, p. 2, R.

1112)?

In September 1949, before the inception of airport

’ eonstruction, the City of Gary enacted an airport

zoning ordinance to regulate and restrict the height

of structures and the use of property in the vicinity

of the airport (Pl. ex. 3; R. 634, infra, pp. 1la-17a).

*The Grant Agreement of June 1949 between the City of Gary

and the Civil Aeronautics Administration shows that the United

States obligated itse]f in the sum of $166.000 as its contribution to

the construction of the airport (infra, p. 34a). Not in evidence, the

. Grant Agreement has been obtained from the Federal Aviation

| Agency, and relevant parts of it are excerpted in Appendix F, infra,

pp. 33a-4la. Further. Grant Agreements were entered into on

May 22, 1950, June 28, 1951, and August 12, 1957.

As presently veuitinint the operative part of the ordi-

_ nance e provides that (PI. ex. 3, p. 3, infra, pp. 13a-14a) :

~ Section +4: ‘Heicnt Liwits+Except as otherwise

provided in this ordinance, no structure shall be

erected, altered or maintained. in any airport ap-

proach zone or airport turning zone to a height in

excess of the height limit herein established for —

such zone. For purposes of-this regulation, the

following height limits are hereby established for

each of the zones in question:

(a) Turning Zone, 150 feet

(b) Outer Area Approach Zone, 150 feet

(ec) Inner Area Approach Zone as indieated

(extending 6,000 feet from the end of the

proposed runway) not to exreeed height

greater than permitted of 40 to 1. slope. .

[Emphasis supplied.] . .

(d) Transition Zone, height limit based on 7 to

1 slope from edge of inner area approach

zone to maximum height of 150 feet

All height limits shall begin at elevation of 590

feet above sea level.

The ‘40 to 1 slope”’ pene by hasten 4(c). of the

- ordinance pertains to ‘‘glide angle’’ or ‘‘glide slope’’.

Glide angle or slope is determined as the ratio of hori-

zontal distance ‘> vertical elevation. A 40 to 1 glide

anglé or slope means 40 feet of forward horizontal

distance for one foot of vertical it site (R. 681-.

. 682).

Made part of the ordinance was a detailed zoning

map and layout plan (PI. ex. 3, pp. 2-3, infra, p. 13a).

Exempt from the ordinance was any existing structure

and any structure whose construction or alteration had

been begun and could with diligence be completed in

6

two years (/d., p. 3, infra, p. 14a). Provision for var-

iance was made if compliance with the ordinance

| “would@result in practical difficulty or unnecessary

hardship and the relief granted would not: be contrary

to the public interest but do substantial justice and .be

in accordance with the spirit of this Ordinance”’ (Id.,

- pp. 3-4, infra, p. 14a). A detailed hearing procedure

was prescribed (Id., pp. 4-5, infra, pp. 14a-16a).

The preamble to the ordinance stated that ‘‘air-

port hazards endangered the lives and property.of |

users of the Gary. Municipal Airport and the occu-

pants of land in.its vicinity, and in effect, reduces the

size of the area available for the landing, taking off,

and maneuvering of aircraft, thus tending to destroy.

or impair the utility of the airport and the public in-

vestments therein ...’’ (Pl. ex. 3, p. 1, infra, p. 11a).

To overcome these hazards, the preamble stated, the.

Board of Aviation Commissioners of the City of Gary

has ‘‘adopted certain standards for the safe descent,

landing and ascent of aircraft and for the proper and.

safe use of the Gary Municipal -Airport and landing

field in respect to height ard location of structures and +%

the use of land... .”’ (ibid.). Accordingly, the pre-

amble concluded, enactment of the ordinance ‘‘is neces-

sary in the interest of the public health, public safety.

and general welfare.”’ to the’ end that ‘‘creation or

establishment of airport hazards. be prevented to the .

extent legally possible by exercise of the. police power

ee (DEE). : -

Qn March 20, 1950, subsequent to enactment of the

ordinance, petitioners entered into a 20 Vear lease, with

an option for an additional 10 vear period, to operate

. the airport (Pl. ex. 4, R. 570). Pursuant to that lease.

petitioners expended about $400.000 to build hangars

a

and purchase equipment and facilities for the opera-—

. ‘tion of the general business: of the —— bse

pp. 2a-3a).

This was the situation which prevailed when” re-

spondent I#diana Toll Road Commission came on the

scene. It constructed a toll road in an east-west direc-

tion parallel-with the south side of the Gary Municipal

Airport approximately at right angles to the north-

south. runway (infra, p. 3a, Def. ex. A, R. 917). The

Commission acquired the right-of-way in 1954 and

1955 (CR. 589, 661). It completed construction and °

opened the road for traffic in 1956 (ibid.). The road

was constructed along the south boundary of the air-

‘ * port (R. 476). The road was raised about 30 feet

above the surface.of the Jand on which it was built

(Pl. ex. 15, def. ex. A). It was constructed partly on ~

the river bed of the Grand Calumet River; the toll road

shifted the river bed north a distance varying from 100 —

to 175 feet; it. brought the north line of the river bed

175 feet closer to the south line of the airport property,

approximately the width of the river (R. 594-596, pl.

exs. 15, 16). The north edge of the road is 1,043, feet

‘ south of the existing south end of the north-south run-

way (or 743° feet from the south end of the proposed

but not vet constructed length of the runway), and is

elevated 24.6 feet higher than the south end of the

north-south runway (Def. ex. A, R. 917, infra, p. 3a).

Under the ordinance the permjtted elevation of struc-

. tures at the location of the road was about 181 feet,

with the result that the road penetrated about Bl, feet

into the air space protected by the ordinance ( infra,

p. 3a). The consequence of this encroachment was to

reduce the vlide slope from about 38 to 1 to about 27

to 1, causing the north-south runway to be unusable

for aircraft grossing 15,000 pounds or more (R. 671-

701, 5346-550, 556-557, 645-651, 655)..

8:

To secure relief from the harm caused: by the im-

- paired use of the north-south runway, petitioners sued

in the Porter Circuit Court, Lake County, Indiana, for

injunctive relief and damages (R. 5-16). In defense,

at the nisi prius level, respondent first took the posi-

tion that the zoning ordinance ‘“‘was, as a matter of

law, an act done’in the exercise of said City’s police

power’”’; that it ‘‘constituted a restriction of the use

_ of property, and did not, as a matter of law, constitute

an appropriation of property within the meaning of

either the Constitution of the State of Indiana or the

Constitution of the United States’’; but that respond-

ent’s own action as a ‘“‘body politic’’ constituted a su-

~ pervening exercise of ‘‘its politic power’’ (R. 46-47).

Upon rejection of this argument by the Circuit Court

(R. 49), respondent swit¢hed its position to an attack

upon -the validity of the zoning ordinanée, claiming

that it eaused an ‘‘unconstitutional taking of property

without payment of due compensation and. is offensive

EPS ER ERA ee ea

to and violative of the 5th and 14th Amendments of .

the Constitution of the United States and Article 1,

Section 21 of the Constitution of the State of Indiana”’

(R. 622). Rejecting this argument, the Circuit Court |

ruled that (R. 634):

With yeference to the third objection that the

zoning ordinance is attempting to do under police

powers what the courts say should be done under

the right of eminent domain, I don’t feel this

statute imposes an obligation upon the. airport

-authority to condemn that which immediately rests |

. without the physical: boundaries of the airport °

as established under the statute of 1945.

After trial, while denying injunctive relief, the Circuit

. Court awarded petitioners a judgment ‘‘in the sum of

$164,000.00 and costs’’ (R. 244).

4

9

On appeal to the Indiana Supreme Court, that court

held that the zoning ordinance was ‘“‘wholly void .. .”’

(infra, p.10a). Citing this Court’s decisions in United

States v. Causby, 328 U.S. 256, and Griggs v. Alle-

ghany County, 369 U.S..84, it held that ‘‘the reason-

able and ordinary use of air space above land is a prop-

erty right which cannot be taken without the’payment _

of compensation’? (infra, pp. 5a-7a). Citing this

Court’s decision in Pennsylvania Coal Co. v. Mahon,

260 U.S. 393, it held that ‘‘the taking or appropriating

. of private property by the government for a specific

publie use... can be effected only if compensation is

provided”’ (infra, p. 7a). Citing this Court’s decision

in Village of Euchd v. Ambler, 272 U.S. 365, it held

that respondent was under no initial obligation to seek

a variance, for no ‘‘exhaustion of administrative rem-

edies”’ is required ‘‘when a zoning ordinance is invalid

as an entirety”’ (infra, p. 8a). And, citing this Court’s °

opinion in Mugler v. Kansas, 123 U.S. 623, it held that —

it was free to look through the declaration of policy

_ In the ordinance and treat it as an artifice (ifra, pp.

8a,9a). It therefore invalidated the ordinance on the

s and exclusive ground that it ‘‘was unconstitu<

tional in that it purported to appropriate, without

compensation, the reasonable and ordinary use of the

preperty on which appellant [respondent here] con-

structed its toll road”’ (infra, p.4a).

REASONS FOR GRANTING THE WRIT

Based on the premise that the usable air space above

land. is property which cannot be taken without com-

pensation, the court below nullifies the airport zoning

ordinance on its face, unrelat®&l to any claim or finding

of specific arbitrary application, concluding that it is

a ‘‘wholly void’’ enactment ‘‘invalid as an entiréety”’

u

B.S tt ot ree er 5 raterdens tae et fuse Vid ah eghae os oe Sr high 2 My hee vues on .

OEE ELE SUSE ELE i TLE TL. OY I RO SC eae

10

(infra, pp. 10a, 8a). The central question therefore i is

.whether. the police power is ex*rcisable to zone prop-

erty within the vicinity of a public airport for the

purpose of maintaining safe and unobstructed access

to the airport, or whether the governmental means to

serve this end are restricted to purchase or condemna- —

tion. On the constitutional level the question ealls for

reconciliation ina contemporary setting of the ancient

tension between the police power and eminent domain.

Mugler v. Kansas, 123 U.S. 623, 668,668, On the prac-

tical level thé import of the question is immense. ‘‘'T‘ne

protection of airport approaches from dangerous ob-

struction offers one of the most pressing of current

legal problems’’ Rhyne, Airports and the Courts, 164

(1944). ‘‘In the field of airport law the most import-

ant questions confronting the lawyer today—and prob-

ably the most difficult—are those arising out of the

conflict which almost inevitably exists Letween the in-

terests of the owner or occupant of land in the immedi-.

ate vicinity of an airport and those of the airport

owner, ... Can the airport owner, by court action or

the adoption of airport zoning regulations, prevent the

landowner from erecting a structure which would be

an obstruction to the landing and taking-off of aircraft

at the airport. or from using his property in a manner

_ hazardous to such aircraft operations?’’ Hunter, The

Conflicting Interests of Airport Owner and Nearby

Property Owner, 11 Law & Contemp. Prob. 539 (1946).

Pd

7 sabe aaeasodeaieeas

The dimensions of the constitutional question can be

quickly sketched. It is of course datum that ‘‘ ‘an

adequate approach way is as necessary a part-of an

airport as is the ground on which the airstrip itself, is

O.4

<

constructed. .. .’ Without the ‘approach_areas,’ an_

airport is indeed not operable.” Griggs v. Alleghany

County; 369 U.S. 84, 90. Zoning the property adjacent -

to the airport to maintain unobstructed approaches

fulfills the need of preserving access but at the same

time diminishes the use to which the adjacent property

' ean be put.. Lessened use is of course inherent in. regu-

lation and does not by itself constitute a taking. ‘‘Gov- .

ernment hardly could go on if, to some extent, values

incident to property could not be diminished withont

paying for every change in the general law.”’ Pennsyl-

" vania Coal Co. v. Mahon, 260 U.S. 393. 413. The point

at which diminution reaches a magnitude constituting

a taking is'a question of degree. JJ/nited States vy.

Central Eureka Mining Co., 357 U.S. 155, 168.-““There

is no set formula te determine where regulation ends

and taking begins.”’ Goldblatt v. Town of Hempstead,

369 U.S. 590, 594. . .

But to say that the question is one of degree does

not mean that it is wholly at large. Zoning is indis-

pensable in our crowded society as.a means of adjust-

ing conflicting property and. community - demands.

‘Space, height, and use limitations are commonplace

and their validity unquestionable (Gorieb y. Fox, 274

U.S. 603, 608) : a es

e

It is hard to see anv controlling difference be-

tween regulations which require the lot owner to

leave open areas at the sides and rear of his house

and limit the extent of his use of the space above

his lot and a regulation which requires him to set

his building a reasonable distance back from the

street. Each interferes in the same way, if not

to the same extent. with the owner's general right

of dominion over his property. All rest for their

justification upon the same reasons which have

Sa ae ee ee fF

arisen in recent times as a oestt of the great in-

crease and concentration of “population in urban

communities and the vast changes in the extent

and complexity of the problems of modern city

life... . State legislatures and city councils, who

deal ‘with the situation from a. practical stand-

point, are better qualified than the courts to deter-

mine the necessity, character and degree .of regu-

lation which these new and perplexing conditions

‘require; and their conclusions should not be dis:

turbed by the courts-unless clearly arbitrary and

unreasonable.

Airport zoning is in principle no different. The |

problem of approach protection to which airport

‘ zoning is directed has been summarized as follows

(Rhyne, Municipal Law, 489 (1957)):

To protect the public interest in public airports

by preventing construction or growth of hazards

or obstructions in the approach zorttes of properly

. located and.constructed airports, municipal, state

and federal governments have‘turned to police

power zoning to limit the height of structures and

objects of natural growth in airport appreach

gones. A mnnicipality may spend large sums from

publie funds for the very essential public purpose

of constructing and maintaining.an adequate, and

safe airport to serve its residents. only to have

this airport rendered ‘worthless almost overnight

by the erection or growth of some obstruction in

the airport's approach zones which prevents full

use of the landing facilities there made available

at public expense.

The House Committee on Interstate and Foreign Com-

merce has warned that: ‘‘Hundreds of millions of dol-

lars are being spent on airports. But unless an airport

can be approached without encountering. obstructions

- 13

the investment therein becomes valucless—or the air-

port itself-becomes a death trap. To protect passengers

and flight crews, and to assure that airports can be

- used in connection with defense of the Nation in time -

of emergency, it is vital that there be adequate ‘zoning.

Unless zoning is accomplished now, before airport ap-

proaches are further obstructed, the task will some day

reach staggering proportions. Few steps are of such

urgency. Few steps are so essential to promote safety.’’

H. Rep. No. 784, 78th Cong., Ist sess., i hy

Responsive to these considerations, the Florida Su-

preme Court, in emphatic conflict with the court below,

has endorsed airport zoning as a valid exercise of the

police power. Harrell’s Candy Kitchen, Inc. Vv. Sara-

soto-Manatee Airport Authority, 111 So. 2d 439 (Fla.

1959). ‘‘We ean think of no situation which more

clearly authorizes the exercise of this phase of the

police power than that involved here. Such regula-

tions promote the general welfare of the state and com-

munity served, contribute to the proper and orderly

development of land areas in the vicinity of airports.

Such regulations stabilize values and provide safety

to those who use facilities in taking off and landing as

well as those living in the vicinity thereof. Well

settled principles with respect to zoning apply equally

to airport zoning.”’ Id. at 443¢ Informed commenta-

3 See also. Hunter. The Conflicting Interests of Airport Owner

and Nearby Property Owner, 11 Law & Contemp. Prob. 539, 542

. €1946.: 2 Yokley. Zoning Law and Practice, 43-45, 61-75 (1953).

* Cases pro and con. whether by holding. dictum. or implication.

are in general not illuminating. and are collected in Rhyne, Munici-

pal Law. 490 (1957). and Anno., 77 A.L.R. 2d 1355, 1362-64.

‘ ”

~ .

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14

tors have likewise uniformly held the view that rea-

sonable airport zoning is valid.

’ Accordingly, unless airport zoning is to be a priori

nullified as beyond any legitimate exercise of police

power, the question. reduces to whether the ordinance

in this case is on its face so wanting in ‘‘reasonable-

ness’’. ( Goldblatt v. Town of Hempstead, 369 U.S. 590,

594-595). that it is ‘‘wholly void’’ (infra, p. 10a). There »

is no claim or showing that the height limitations the

ordinance prescribes are not strictly germane to pre-

serving unobstructed approaches to the airport and |

essential to maintaining safe flight. The ordinance

¢exempts from its operation existing structures and

those which can with diligence be completed within

» two vears of enactment. Current use of property is

therefore wholly undisturbed. Nor is future use of

“property restricted by the ordinance if good cause for

variance is shown. A full hearing procedure is estab-

lished. In this ease respondent acquired the adjacent

property years after the ordinance was enacted and

therefore with full notice of the limitations on its use.

And it made no effort to seek a variance, thus fore-

going the opportunity to show superior equity in its

proposed use of the adjacent property.

Invalidation of the ordinanee thus rests on the bare.

claim that ownership of the property of itself pre-

- eludes soning to regulate its use.. It is that claim

which the court below sustains. According to it.

‘**Had the... [adjacent property owner] chosen to

3 Rhyne, Municipal Law. 491 (1957:: Hunter. The Conflicting

Interests of Airport Owner and Nearby Property Owner. 11 Law &

Contemp. Prob. 539, 554 (1946): Rhyne. Airports and the Courts.

16419) ©1944): Note. Zoninno—The Airport And The Land Sur-

rounding It In The Jet Age. 48 Ke. LO. 273 (1960: : Manion. Law

“of the Air, 77 (1950).

be tt ae

’ 15

erect flagpoles, factory chimneys, or tall ' buildings,

across the whole of its land, and several times as high

as its power line, it was within its rights notwithstand-

ing it might have-entirely prevented the landing of _.

airplanes at... [the] airport’’’ (infra, p. 5a). “But

that doctrine ean hardly survive its statement. ‘‘Own-

ership does not always mean absolute dominion.”’

-- Marsh v. Alabama, 326 U.S. 501, 506. The essence: of

civilized society is adjustment of competing demands

in use of land and other valuables. The absolutism of

the court below is atavistic, Ferguson v. Skrupa, 372

U.S. 726, and requires this Court’s intercession to _

maintain governmental viability in the important area

of airport zoning. Euclid v. Ambler Realty Co., 272

U.S. 303.

+ II

The question has national importance. The ordi-

nance in this case is typical of many throughout the

country. Adoption of airport zoning ordinances has

heen impelled by federal authgrity in furtherance of

national aviation poliey. Only last month, on March

11, 1964, Congress amended the Federal Airport Act

explicity to confirm ‘‘adoption of zoning laws’’ as a

central .element of federal aviation yomey (infra,

pp. 18-19).

The origin of airport zoning, its widespread , inci-

denge. and the union of municipal, state, and federal —

authority to further it has been described as follows

(Rhyne, Municipal Law, 489, 490-491 (1957) ):

The first suggestion that zoning should be the

answer to the problem of airport approach protev-

tion. came in 1928 when -Alameda County, Cali-

fornia adopted an ordinance prohibiting the erec-

tion or maintaining of any “*structure or obstrue-

tion to the operation of aircraft. at a height in

oto Qe oF 1p atten Pe oe batts gf. ae eS, ae, ye SSR ee Tht BEG OT PO BS Pt OE Se OMI SOB ae go 2 DR Oe eee eee VAI RAP OA on et os

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: i

16

excess of fifty (50) feet upon unincorporated terri-

tory . . within one thousand (1 000) feet of any

boundary of a public air navigation facility .. .

Ps within the County of Alameda.’’. In 1929, the

: ~ Board of Port Commissioners of the City of Oaks

land, California, adopted a similar ordinance. The

federal government through the Civil Aeronanties

Authority, as early as 1930 and again in 1938

recognized that airport zoning was. the ‘‘simplest

solution . .. and therefore the most satisfactory

way that can be adopted ... to prevent gbstruc-

tions in the approaches of airports.” The Civil

Aeronauties Administration has an established

policy of inserting in all grant agreements with

cities for expenditure of federal funds on public

airports the requirement that the city will prevent:

obstructions, if possible and within its powers, by’

zoning. acquisition of property interests, or other-

wise.

* * *

A recent review of state airport legislatjon_re-

veals that airport zoning acts of one type or an-

other have been adopted in all but eight states.

These acts are usually denominated Airport Zon-

ing Acts or Municipal Airport Approach Pro-

tection Acts and provide for the promulgation

and administration of airport approach zoning

regulations by subordinate units of government.

Many cities have adopted airport zoning ordi-

nances pursuant to the statutes, and the ordinances

are apparently working wejl. Most of the ena-

bling acts have been written or amended so as to be

substantially similar to the 1944 model act formn-’

lated bv NTMLO [National Institute of Municipal

Law Officers] ‘and the Civil Aeronauties Adminis-

tration.®

® Fora tracing and snmmary of some prominent ordinances, see

Rhrne, Airports and the Courts, 173-176 (1944). See also. Note.

Zoning—The Airport ind The Land Surrounding It in The Jet

-Age, 45 Ky. LJ. 278, 279 (1960).

17

Illustrating the contemporary significance of airport

‘ zoning, public hearings were resumed on February 13,

1964, by the Illinois Department of Aeronautics ‘‘con-

cerning the establishment of Airport Zoning Regula- °

tions for Chicago-O’Hare International Airport, Chi-

cago, Illinois,’” the nation’s busiest airport.’

The federal interest in airport approach protection

expressed in the Federal Airport Act is at the heart

of airport zoning. ‘‘Aireraft when taking off or land-

ing ... need space at the ends of the landing strips,

known.as ‘approach areas,’ over which they may safely

gain or lose altitude.’” The airport approach -stand-

ards incorporated in zoning ordinances to fulfill this

need are based directly on federal criteria promul-

gated by the Federal Aviation Agency. The FAA’s

authority in the field of airport approach protection

derives primarily from the Federal Airport Act and

the role ascribed by Congress to the FAA Administra-

tor to propose and anfiually revise ‘‘a national plan

for the development of public airports in the United

States ...’’ (&5). ‘‘iii order to bring about. in con-

»

formity with the national airport plan . ... the estab- °

— lishmaent of a. Nationwide system of public airports

adequate to meet the present and future needs ‘of civil

‘aeronautics .. .”’ ($4). Congress adopted a grant-in-

aid program under which adherence to federal stand-

ards is made the condition of the grant of funds. The

Act defines as an ‘‘ Airport hazard”’ ‘‘any structure or

object of natural growth located on or in the vicinity

7 Notice, State of Illinois, Department of Aeronautics, February

3,°1964.

SFPAA Air Traffic Activity, Calendar 1962, 35.

*FAA, Small Airports, 9 (1959).

rie:

&»

' 18

_of a public airport, or any use of land near such air-

port, which obstructs the air space required for the |

flight of aircraft in landing or taking off at such:air-

port or is otherwise hazardous to such landing or 'tak-

ing off of aircraft’ (§2(4)). A ‘*sponsor’’ in sub-

mitting a ‘‘project application’’ for a grant of funds

for airport development is required to formulate his

proposal ‘‘in accordance with standards established by

the Administrator, including standards for site loca-

tion, airport lay-out, grading, drainage, seeding, paving,

lighting, and safety of approaches’’ (§ 9, emphasis sup-

plied). More partieularly, as a ‘‘condition precedent”’

to approval of the project, *‘the Administrator shall

receive assurances in writing, satisfactory to him, ” that

tnter alia (§11(3)):

‘the aerial approaches to such airport will be ade-

quately cleared and protected by removing, lower-

ing, relocating, marking, or lighting or otherwise

mitigating existing airport hazards and by pre-

venting the establishment. or creation of future

atr port hazards. ees supplied. ]

And, crucially signifieant, ‘Congress only last month,

on March 11, 1964, made explicit the especial appro-

priateness of zoning as one means to prevent establish-

ment or creation of airport hazards. Thus, Congress

added a new paragraph (4) to section 11 of the,Act

- requiring that the Administrator obtain from the

sponsor written assurance that: "

appropriate action, including the adoption of zon-

ing laws, has been or will be taken, to the extent

10 Public Law 88-280, $10, March 11, 1964; EI. Conf. Rep. No.

1154, 88th Cong., 2d Sess.. in 110 Daily Cong. Rec. 3519 (Feb. 26,

1964) ; S. Rep. No. 446, 88th Cong., Ist Sess., 2, 3, 20-25; H. Rep.

No. 1002, 85th Cong., Ist Sess., 2, 6,15.

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* 19

4

reasonable, to restrict the use of land adjacent to

or in the immediate vicinity of the airport to ac-

tivities and purposes compatible with normal air-

port operations including landing and take-off of

aircraft. [Emphasis supplied.]

Specific advertence by Congress to ‘‘adoption of

zoning laws’’ to assure land use compatible with air-

port operation confirms the actual long-standing prac-

tice. The airport approach standards, measuring the

air space in the vicinity of the airport which should

be free of obstructions to maintain safe take-off and

_landing, are prescribed by the FAA in Technical |

‘Standard Order No. N18 (TSO-N18), dated April 26,

1950, as amended, entitled “‘Criteria For Determining

Obstructions To Air Navigation.’’ To secure adher-

- ence to these prescribed approach standards the ‘‘adop-

tion and enforcement of zoning regulations”’ is one of

the means specifically enumerated i in the FAA’s:stand-

ard form project application to which the sponsor must

subseribé (Form .FAA-1624, Part III 7, Sponsor As-

surances) :

Insofar as it is within its power’ and reasonably

possible, the Sponsor will. either by the aequisi-

tion ard retention of easements or other interests

in or rights for the use of land or airspace or by

the adoption and enforcement of zoning requla-

tions, preveut the cons.ruction, erection, altera-

tion. or growth of any structure. tree or other

object in the approach areas of the runways of

the Airport. which would constitute an obstrui-

tion to air navigation according to the eriteria or

standards prescribed in Section A of FAA Tech-

rieal Standard Order No. N18, dated April 26,

1950, as amended. [Emphasis sunplied.] .

_ Furthermore, the FAA authors a Model Airport Zon-

ing Ordinance. In the foreword to the model ordi-

20

nance, the FAA notes that attached to it is “a copy of

Technical Standard Order-N18, which sets forth cri-

teria for determining obstructions to air navigation.”’

_ It further observes that, in establishing and def ing

by ordinance the ‘‘various zones required for the pro-

tection of the airport from the encroachment of ob-

structions or hazards to aircraft’’, the ‘‘size of these

zones at each airport should be based on the standards -

established for the type of the airport by TSO-N18.”’

' And it advises that its personnel is available to guide

in the application of the standards:

The Airports Branches of the several Regional

Offices of the Federal Aviation Agency and the

District Airport Engineers are available to assist

in developing airport zoning regulations through

advice as to the,application of the criteria of TSO-

N18 to the particular airport and the desired -

proach protection.

Even with respect to the “runway elear zone,” de-

scribed as ‘‘the innermost part of the runway approach

area’? (14 CFR §151.9(b)), zoning in lieu of a prop-

erty interest may be relied upon in the ease of ‘‘exist-.

ing airports where improvements are made to run-

ways or landing strips’’ (id. § 151.11(d)) or ‘‘where

substantial improvements are made that do not benefit

a specific runway or janding strip” (id. § 151.11(e)¥T

‘the applicable FAA regulation stating that (id.

§ 151.11(f)): :

If a sponsor or other publie ageney shows that’

it is legally able to prevent the future erection or

creation of obstructions in the runway cléar zone

area, aml adopts protective measures to prohibit

their future erection or creation, that showing is

acceptable for the purposes of paragraphs (d) and

(e) of this section in place of an adequate prop-

erty interest. ... In each case, the sponsor must

®

‘

x’

“21

. furnish information as to the specific height limi-

tations established and as to the current and fore-

_seeable future use of the property to which they

apply. The information must include an accept-

able legal opinion of the validity. of the measures .

adopted, including a conclusion that the height

limitations are not unreasonable in view of current

and foreseeable future use of the property, and

are a reasonable exercise of the police power, to-

' gether with the reasons or basis supporting the

opinion. |

Congressional confirmation and FAA practice’ are

rooted in studies advocating airport zoning to protect

aerial wpproaches. ‘In the pivneer study in. 1930, the

United States Department of Commerce, Aeronauties

Branch, recommended that ‘‘municipalities and other

political subdivisions . . . exercise the police pojver in

the promulgation of. properly coordinated zoning ordi-

nances applying equitably to publie airports and in-

termediate landing fields and to commercial airports

of the public utility class, as well as other land -uses.’”™

The so-called ‘‘Doolittle Report’’ to the President in

1952 made ‘‘tworsuggestions”’ pertaining to aerial‘ap- .

proaches: ‘‘(1) that certain extensions or over-run ”

areas be incorporated in the airport itself. and (2) that

larger areas beyond sucli extensions be zoned by proper

authority, not only to prevent the erection of obstruec- .

tions that might be harmful to aircraft, but also to con-

trol the erection of public and residential buildings

as a protection ¥rom nuisanice and hazard to people

on the ground.’””

11 Report of the Committee on Airport Zoning and Eminent

Domain, December 18, 1930, p. 9.

12 Report of. the President’s Airport Commission. The Airport

and Its Neighbors, 7 (May 16, 1952).

22

Finally, airport zoning serves the twofold purpose

of maximizing safety and protecting investment. ‘‘The

maintenance of an adequate airport system is the single

most important factor fn insuring air safety. The

importance, of adequate airport facilities was cogently

demonstrated in testimony presente@ by the Federal

Aviation Agency. The agency, in urging continuation

of the program, observed that more than two-thirds of.

all aircraft accidents occur eithér at or within 5. miles. ©

of the airport.’’ S. Rep. No. 446, 88th Cong., Ist Sess.,

19.° As to investment, ‘‘Since the federal aid to air-

port program was first initiated. in fiscal year 1947,

total expenditures have amounted to $550,609,855. 7 d.

at 7. Estimated cost of further.development over the

next five vears is $1,082,439,000 of public funds,”

with the .federal grant-in-aid program providing for

$225,000,000 over the next three vears.° The factors

of safety and investment underscore the communal

importance of airports and the contribution to the gen- ..

eral welfare which airport zoning makes. ‘Airports

are not just local assets. They do not just benefit the

larger airlines, the private and business pilots and the

_ air travelers, but vitally affect the prosperity, well-

*being and security of all our citizens.’’ Id. at 17.

The situation-of the Gary Municipal Airport in this -

ease fits the. federal pattern precisely. It is one of the

airports which make up the National Airport Plan;

18 See also. Hearings before the Aviation Subcommittee of the

Senate Commerce Committee on S. 1153. 88th Cong., Ist sess., 29,

184: Statistical Review and Resume of Accidents, US Air Carriers,

Calendar Year 1960. CAB 1963, 12.

44 National Airport Plan, Requirements for Fiscal Years 1963-

1967, 1963 Supplement, FAA, Ex. 1, p. 75 (March 1963).

13 Public Law 88-280, § 4, March 11, 1964.

2

it serves the communities of Gary, Hammond, and

East Chicago; and improvements in it to meet civil avi-

ation needs for fiscal years 1963-1967 are considered

necessary by the National. Airport Plan.”* The grant

agreement between the City of Gary and the Civil

Aeronautics Administration obligates Gary as the

sponsor to prevent insofar as it can land use in or out

of the airport boundaries which would create air haz-

ards, and stipulates ‘‘the adoption.and enforcement of |

‘-a zoning ordinance and regulations’? as one of. the

means to that end (imfra, pp. 41a-42a) :

Insofar as is within its powers and reasonably

possible, the Sponsor will prevent the use of any

land either within or,putside the houndaries of the

Airport in any manner (including the construe-

tion, erection, alteration, or growth of any struc-

ture or other object thereon) which would create

a hazard to the landing, taking-off or manenvering

of aircraft atthe Airport, or otherwise limit the

usefulness of the Airport. This objective will be

accomplished either by the adoption and enforce-

ment of a zoning ordinance and regulations or by

the acquisition of easements or other interests in

lands.or airspace, or by both such methods. . . .

The airport approach standards to be followed in

performing the covenants contained in this para-

graph shall be those’ established by the Adminis-

trator in Office of Airports Drawing No. 672 dated

September 1. 1946 unless étherwise authorized by

. the Administrator. LSeapaeste — —

16 National Airport Plan, Requirements for Fiscal ‘Years 1963-

1967, FAA, 101 (April 1962). ;

17 Office of Airports Drawing No. 672 was amabiaited ‘by Office

- of Airports Drawing No. 8]4, the latter bei ing incorporated in the

_presently effective Technica! Standard Order N18 as the schematic

representation of the obstruction criteria. The Grant Agreement

24

The zoning ordinance which Gary adopted in Septem-

berS1950 was tailored from the then current model

ordinance which the Civil Aeronautics Commission had

authored in February 1947. And the federal interest

is particularly apparent in that the land on which the

airport is. construgted was donated by the United

States **for the benefit which shall accrue to the United

States ... from the continued use of such property

as an airport?’, with automatic reversion of the ttle

to the Unitéil States if the FAA Administrator de-

termines that *‘the premises have ceased to be used

_or are necessaty for airport purposes” (supra. p. 3.

The court below thus clearly misapprehends the

federal scheme when it states that the *‘federal gov-

ernment has recognized the requifement that ease-

- ‘ments for the glide angle needed for landing and take-

off must be acquired by condemnation proceedings and

pavment of just compensation” (infra, p. 9ay. The

federal scheme is indeed based on the contrary view

and the decision betow is wholly incompatible wit!: it

in totally nullifring airport zoning as a governmental!

means of regulating land use adjacent to airvorts for

‘the purpose of maintaining unobstructed aerial ap-

proaches. Equally wrong is relianee by the court be-

low upon this Court's decisions in Tnited States v.

Causby, 328 U.S. 256. and Griggs v. Alleghany County.

369 U.S. S4. for the conelusion that airport zoning.

without more. constitutes a taking (infra, pp. 5a-Ta .

‘Causby and Grigas hold that low flights at frequent

between the City of Gary and the Civil Aeronaaties Administration .

of Jnne 19. 1951. states in naragraph S:b that ‘*The Airpor:

Appmach Standards to te followed in performing the eovenants

eontained in this nardgraph sha!l be these established br the A7-

rointstrater in OFes of Airports:-Drawirg No. 514 datei April 254.

1950 unless (stherwis authorized by the Administrater”’.

25° or

intervals which significantly diminish the use of prop-

erty lying below the aircrafts’ path result in a taking

which requires compensation. - The .decisions do not.

reach the question whether the police power is exer-

cisable to zone property adjacent to the airport to pre-

vent future development of land use incompatible with

shfe and efficient airport operation. It is this question

of first impression which requires this Court’s review. . -

III

Independently of its national significance. the ques-

tion is important even limiting the impact of the de-

cision below to Indiana. for it -nullifies a state-wide

volicy of airport zoning. There are 63 airports in

Indiana included within the: National ‘Airport Plan.”

\ In 1957 Indiana enacted a statute known ‘colloquially

_)as the Tall Structure Act and formally entitled *+An

act to promote safety. welfare and protection of per-

sons and property in. the air and on the ground br reg-

-ulating the height. loc ‘ation and visual identification

characteristics of certain stractures."" 5 Burns Ind.

Stat. 14-327 et seq. The Act is designed to apply only

where no existing airport zoning already obtains. for

it is **not [to] apply in any instance’ where the pro-

posed erection. addition to or replacement of a struc :

ture is located in an area for which airport zoning

regulations have been adopted pursuant to law. .. .”"

Td. 14339. The poliey underlving this void-filling

statute is expréssed as follows: *‘The safety. welfare

and protection of persons and - ‘property in the air and

on the ground and of she maintenance of electroni«

8 National Airpor: Plan. Reqanirements for Fiseai Years 1963-—

1967, FAA. 99-102 ‘April 1962 : Id. 1963 Supplemens. 35-39

(Maren 1963 . ¢ -

26

- communication within this state requires that the nav-

. igable airspace overlying the state and the approaches

to and the air traffic pattern of any public use airport ©

in this state be maintained in a- reasonably unob-

structed condition for the safe flight of aircraft. "To

that end, the location and height of structures and the

use of land related thereto. is regulated.”’ Id. 14-327.

The scheme of regulation is to prohibit the erection of

structures which exceed specified height limitations un-

less a permit is obtained (id. 12-329); to prohibit the

issuance of a permit if certain. defined: height limita-

tions are exceeded (id. 14-330); and. within permis-_

sible height limitations, to base the issuance of 4 per-

mit upon a determination by: the Indiana Aeronautics

Commission of ‘‘a location and height fr a structure

for the particular ,purpose proposed in the location

proposed as will best serve the safety and welfare ot.

persons and property in the air and on the ground and

other technical and economic factors involved. Ini eon-

sidering and disposing of the application the safety

and welfare of persons and property in the air and on

the ground shall be deemed paramount to economic

and technical factors."’ (id. 14-333} ).

The scheme of regulation encased in the Indiana Tall .

Structure Act is in principle no. different from the

Garv ordinanée. The decision below nullifies the Gary

ordinance, every other existing municipal airport zon-

ing ordinance in Indiana, and the Tall Structures Act

desizned to operate in locglities in Indiana where air-

pert zoning has not been enacted. State-wide paralvsis

of governmental viability within the vital field .of

airport zoning presents a situation requiring this

Court's review.

27

IV

The decision below does not rest upon a ‘ ‘non-fed-

eral ground. . . independent of the federal ground and

adequate to support the judgment.’ ’’ Cramp v. Board

of Public Instruction, 368'U.S. 278. 281. While re-

spondent contended that the ordinance violated both

the state and federal constitutions ( infra, p. 3a), and,

the court below quoted the relevant provisions of both

Fé in a footnote in its opinion (infra, p. 4a, n. 1), at every

critical juncture of its analysis.the court below invoked

and quoted this Court’s decisions as the foundation of

its redsoning (supra. p. 9.). and at no stage did it

specify the state constitution as the grounding for its

ultimate conclusion that ‘‘the ordinance purported to

authorize an unlawful and unconstitutional appropri-

ation of property rights without parment of compensa-

tion” (infra, p. Pa). The federal source of law un-

derpinning the decision below is especial& denoted by

its prominent reliance on United States v. Caushy,: a

U.S. 256. and Griggs Vv. Alleghany County, 369 U.S

~ (infra, pp. 5a-Ta). Causby and Griggs important “

construed the Civil Aeronanties Act. the Federal Air-

port Act. and‘federal regulations. And the inherently

federal character of any question of the constitutional-

ity of Airport zoning is further apparent from the fact

that full account of federal aviation poliey is esse ‘ntial

to its informed determination.

It was thus by force of this Court’s decisions. and

the federal constraint exerted hy them. that the deci-

sion below was reached. Without the influence of ner-

essary obedience to this Court's views. there is no say-

ing that the court below would have arrived at the re-

sult it did. For it would be pointless for it to conelude

28

that the ordinance was valid under the state consti-

tution if it must in any event fall under the federal

constitution. Since the premises for the decision be-

_low are derived from the compulsion of this Court’s

opinions, its federal orientation precludes ascribing to

that decision an independent state basis. Hence, giv-

ing maximum weight to the possible existence of a state —

ground, it was inextricably entwined with the federal

ground, and the least that must therefore be: said is

that the ‘‘two grounds are so interwoven that we are

unable to conclude that the judgment rests upon an

independent interpretation of the State. law.*’ State

Tar Commission v. Van Cott, 306 U.S. 511, 514. In

that posture, ‘‘where the non-Federal ground is so in-

_terwoven with the other as not to be an independent

matter, . . . our-jurisdiction is plain.’” Enterprise

Irr. District v. Farmers Mut. Canal Co., 243 U.S. 157,

164. See also, Abie State-Bank v. Bryan, 282 U.S. 765,

773. cave )

If there were an exiting state ground which could

be deemed an independent basis of decision. it would

not quality, as it must; under the twin requirement

that it be an adequate predicate for the judgment. For

the vonsequence of a conelusion that the ordinanee had

been invalidated ‘upon an independent state constitu-

tional ground would be to bring the decision below

into collision with federal aviation policy expressed in

the Federal Airport Act and to require its supersession

under the Supremdey Clause. ‘‘{I]t is ‘familiar doc-

trine’ that the federal policy ‘may not be set at nought,

or its benefits denied,’ by the state law.’ Sears, Roe-

buck &: Co. v. Stiffel Co.. 32 U.S. Law Week 4206, 4207 .

(S. Ct. Mareh 9, 1964). The court below faced the

99

relevance of federal aviation policy when it concluded,

albeit erroneously, that the ‘‘federal government has

recognized the requirement that, easements for the

glide angle. needed’ for landing and take-off must be

’ acquired by condemnation proceedings and payment

of Just compensation”’ (infra, p. 9a). Respondent had

indeed urged in the court below that its claim of un-

constitutionality was compatible with federal avia-

tion policy.” There is, therefore, no escape from the

federal question. It would be an odd sort of adequate

state ground, sufficient to sustain the judgment, which

at once founders on the Supremacy Clause.

The short of it is that the inevitable consequence of

the decision below is to restrict the means available to

protect aerial approaches to acquisition by purchase

or condemnation. That means is financially prohibi-

tive. The ‘‘adoption of zoning laws’’ which Congress

has only last month explicitly confirmed as a central ~

element of federal aviation ‘policy is the federally-

prescribed alternative to excessive cost. As the Senate

-’ Commerce Committee stated, ‘‘the committee has no

- ’ intention of allowing airports to be priced out of exist-

ence’’ S. Rep. No. 446, 88th Cong. Ist Sess., 24. Con-

trary to the federal scheme the decision below prices

airports out of existence in Indiana.

19 Respondent's brief in the court bélow, p. 242. All briefs below

have been certified by the clerk of the Indiana Supreme (Court and

lodged with the clerk of this Court.

30

These considerations preclude a view that there et-

ists a state ground independent of the federal ground

acaquete to support the judgment.”

CONCLUSION

For the reasons stated this petition for a writ of

. certiorari should be granted.

Respectfully submitted,

‘STRALEY, T'HORPE

59305 Hohman Avenue

‘ Hammond, Indiana

; BERNARD DunatU

912 Duport Circle Building

Washingten, D. C. 20036

Rosert C. LESTER

1908 Sunderland Place

Washington, D. C.

Attorneys for Petitioners

April 1964

20 If ambiguity is nevertheless thought to exist of a gravity which

this Court may not wish to resolve without summoning the aid of

the court below, the appropriate course would be to grant the writ,

vacate the judgment, and remand for clarification. Minnesota v. .

National Tea Co., 309 U.S. 551, For decision by: this Court of .

‘‘important federal issues’’ should not go by default because of

‘‘obseurities and ambiguities’’ in state court opinions. Id. at 537.

We do not invite this course, for we believe it to be unnecessary

in view of the clear absence of am adequate and independent state

ground. ‘We simply present it as an ahernative that the Court may

desire to cunsider.

4

la

APPENDIX A

ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEES:

Robert L. McMahan, — Straley Thorpe,

South Bend, Indiana; Hammond, Indiana.

Winfield L. Houran, . e*..

Valparaiso, Indiana; .

Paul J. DeVault, ; +

Indianapolis, Indiana.

Chester, Clifford, Hoeppner and Houran, and

Krieg, DeVault, Alexander & en

Of Counsel.

Filed Oct. 24, 1963

IN THE SUPREME COURT OF INDIANA

b No. 30109

Ixpiana Toti Roap Coxmstissi0s, A Body both Corporate

and Politic, Appellant,

v. . i]

Nick JaNkovicH and Pati Jaykovicu, Co-pariners, d b a_

Calumet Aviation Company, Appellees.

Appeal From the Porter Circuit Court

Alban M. Smith, Special vuree

Acuor, Judge

This is an action for damages alleged to have been sus-

tained by appellees. as a result of the construction by ap-

peilant of. the Indiana East-West Toll Road in violation.

of a Master Airport Zoning Ordinance of the City of Gary,

and the contract rights of appellees as lessees of a portion

of the Gary Municipal Airport. The appellees also sought

to enjoin and restrain appellant from maintaining the toll

road at its present elevation.

The circumstances giving rise to this litigation are as

follows: The City of Gary enacted an ordinance in Sep-

2a .

tember, 1949, creating an airport commission. The ordi-

nance farther purported to incorporate, as a part thereof,

the Gary Airport Zoning Map which defined and described

details of const;uction and the boundaries of said airport.

The airport so described encompassed an area of approxi-

mately one square mile. It was located in an area bounded

gencrally by industrial plants on the north, and-on the

sduth by the Grand Calumet River; beyond which were the

* Lake Shore Railroad, the utility lines of the Northern Indi-

ana Public Service Company, and a residential area.

The ordinance was enacted pursuant to the authority as

authorized by Acts 1945, ch. 190, § 9, p. 591; 1949, ch. 109,

$ 6, p. 252 [being § 14-422, Burns’ 1950 Repl.j]. The pro-

vision therein which is directly related to this litigation,

presumed to invest the City of Gary with jurisdiction over

~ structures for six m miles in all directions radiating from

said airport, and to provide that no structure should be

erected within the inner area’ approach zone to any pro-

posed runway for a distance extending 6,000 feet from the

end of the proposed runway to any height which would .

interfere with the glide angle therefrom of 40 feet hori-

.zontally to each one foot of vertical height. The ordinance

further provided for the granting of non-conforming uses.

- and variances, upon showing of good and sufficient reasons.

before the Board of Zoning Appeals in the City of Gary

under its rules and regulations.

Pursuant to said ordinance and in conformity with’ the

details of construction described in said Gary Airport Zon-

ing Map, three runways were constructed, except that ap-

proximately 300 feet was omitted from the south end of

the north and south runway, which runway is involved in

- this action.

On or about March 23.1950, appellees entered into a 20

year lease for the operation of said airport. Pursuant to

said lease,-appellees expended approximately $400,000 in

the building of hangars, the purchase of equipment and

3a

facilities for the operation of the general business of said

airport.

Thereafter the appellant located and constructed its toll

road, parallel with the south side of the Gary Municipal

Airport in such a manner as to cross the inner area ap-

proach zone of the north-south runway as prescribed by

the ordinance, the road being approximately 743 feet south

of the south end of said proposed runway, and approxi-

mately 25 feet higher than the elevation of the end of said

proposed runway.

Under the ordinance ‘he permitted elevation of struc-.

tures at the location of the toll road was approximately

1814 feet, the toll road this projecting itself into the pro-

hibited area about 61 feet. It is this encroachment by

appellants upon the approach zones to the airport, as fixed

by the ordinance, that appellees’ based their action for

damages.

Three-basic issues are raised by appellants to appellees’

right to recover damages by reason of appellant’s noncom-

pliance with the ordinance: (1) Does the ordinance rest

upon any valid legislative »authority; (2) does the ordi-

nance prrport: to effect°a taking of private property for

public use in violation of the provisions of Article 1, § 21

of the Indiana Constitution and the Fourteenth Amend-

ment to the Constitution of the United States; and (3) if

the ordinance does not effect an unconstitutional taking of

private property for public use, but merely operates as a

limitation upon the use of private property by a munici-

pality, within the valid exercise of the police power, raay

that limitation of use be divested without compensation by

an agency of the state which is subsequently granted au-

thority to occupy land and air'space upon which there had

previously been placed a limitation as to its use?

Because of the decision which we have reached in this

case, it is necessary that we consider only appellant’s sec-

4a

ond contention, namely, that the provisions of the ordi-

nance relied upon by appelices was unconstitutional in that

it purported to appropriate, without compensation, the

reasonable and ordinary use of the property on which ap-

pellai t constructed its toll road.

This reason for the invalidity of the ordinance was one

by appellant in its objection to the admissibility of the

ordinance and the maps or plans offered by appellees as

a part thereof. The same issue was asserted as grounds

fur a motion for a’ finding for the defendant filed at the

conclusion of the plaintiffs’ evidence and after plaintiffs

had rested their case, which motion was overruled.

The fact that private property may not be taken for pub-

lic use without compensation is not debatable.! However.

in determining whether this constitutional protection has —

been violated by the ofdinance under consideration,. two

main issues arise: (1) Whether air space above land is a

constitutionally protected property right, and (2) whether

in the instant ease there has been a constitutionally pro-

scribed, taking.

With respect ‘to the first issue, the law has bien made

clear by both legislative and judicial declaration that a

1**No man's particular services shall be demanded, without just

compensation. No man’s property shall be taken by law. without

just compensation; nor, except in case of the State. without such -

compensation first assessed and tendered."’ Article 1, § 21 Indiana

Constitution.

‘*No state shall make or enforce any law which shall abridge the

privileges or immunities of citizers of the United States: nor shall

any state deprive any person of life. liberty. or property. without

due process of law: nor deny to any person within its juriseliction

the equal protection of the laws."” 14th Amend. Constitution

of the United States. :

Pennsylvania Coal Co. v. Mahon (1922°. 260 U.S. 393. 67

L. Ed. 3%. 43 8. Ct. 158

General Cutdoor Advertising Co. Vv. City “of Indianapolis

(1920°, 202 Ind. 85, 172 N. E. 30%.

5a

‘ landowner is also the owner of the air space above -his

property, at least to the extent that such air space ‘may

reasonably be used by him. The Indiana Legislature has.

provided that:

‘*The ownership of the space above the — and

waters of this state is declared to be vested in the

several owners of. the surface beneath, ~~ oe

Ret} 43, § 3, p. 119 [being § 14-103, Burns’ 1956

ep

Also, the property right of a landowner in the air.space

above his property was recognized in numerous decisions .

of this court and the federal courts. In Capitol Airways,

Inc. v. Indianapolis P. €& L. Co. (1938), 215 Ind. 462, 466,

18 N.E. 2d 776, 778, suit had been brought by an. airport:

operator, who admittedly had no right to take property by

eminent domain.against a: public. utility, for damages and

-an injunction. The wrongful act complained of was the

erection of a power line by the public utility which, it was

claimed, obstructed the flight of airplanes into and out of

the airport. This court affirmed the sustaining of a de-

murrer to the complaint and stated:

‘*The establishment of an airport upon tbe appellant’s

land in no way affected or limited the right of adja-

cent landowners to use their land in any manner and

fcr any purpose for which they might have used it be-

fore. Had the appellee chosen to erect flagpoles, fac-

tory chimneys, or tail buildings across the whole of its

land, and several times as high as its power line, it was

.within its rights notwithstanding it might have en-

tirely ‘ele the landing of eee at appellant’s

airport.... ”’

The isin Court of the United States also has given

recognition to property rights in air space accruing to the

owner of the land beneath. In 7. S. v. Causby (1946), 328

U.S. 256, 264, 90 L. Ed. 1206, 66 S. Ct. 1062, the problem

presented was whether property was taken, within the

meaning of the Fifth Amendment to the Constitution of

6a

the United States, by frequent and regular flights of mili-

tary aircraft over the claimant’s land at low *4ltitudes.

The court held there had been a taking of an easement ove *

the property ad which compensation had to be paid, e.nd

stated:

‘*The landowner owns at least as mueh of the space

above the ground as he can occupy cr use in connec-

‘tion with the land... . The fact that he does not oc-

cupy it in a physical sense—by the erection of build-

ings and the like—is not material.-’

For an excellent analysis of the problem, see Ackerman v.

Port ef Seattle; amended opinion at 55 Wash. 2d 400, 348

P. 2d 664 (1960), waameticed opinion at 329 P. 2d 210

(1958).

The Causi." case, supra, was reaffirmed by: the Supreme

Court of the United States on March 5, 1962, in Griggs v

rr as County, 369 U.S. S4, 90, 7 L. ed. 2d 585, 589,

S.Ct. 431, reh. den. 369 U.S S. 857, 8 L. ed. 2d 16, 82 S.

c t. 931, involving frequent low landings and take-offs over

the residence of the petitioner. The Supreme Court, held

that there had been a taking of property in violation of the

Fourteenth. Amendment. The reasoning of the court was

expressed as follows: ;

**\ county that designed and constructed a bridge

would not have a usable facility unless it had at least.

an easement over the land necessary for the approache=

to the bridge. Why should one who designs, constructs.

and uses an airport be in a more favorabie position so.

far as the Fourteenth Amendment is concerted! That

the instant ‘taking’ was ‘for public use"is not debat-

able. For respondent agreed with the C.A.\. that it

would operate the airport ‘for the use and benetit of

‘the public.” that it would operate it ‘on fair and rea-

sonable terms and without unjust discrimination.” and

that it would not allow any carrier to acquire ‘any ex-

elusive right” to its use. ‘

**The glide path for tke aevenet runway is as nec-

essary for the operation of the airport as is a surface

“

Ped

ty

7a

right of way is [sic] for operation of a bridge, or as is

the land necessary for the operation of a dam. See

United States v. Virginia Electric & Power Co., 365

US 624, 630, 5 L ed 2d 838, 845, 81 S Ct 784. As stated

by the Supreme Court of Washington in Ackerman v.

Seattle; 55 Wash 2d 401, 413, 348 P 2d 664, 671, 77

ALR 2d 1344, ‘ ... an adequate approach way is as

necessary a part of an airport as is the ground on

which the airport itself is constructed....’ Without

the ‘approach areas,’ an airport is indeed not operable.

Respondent in designing it had to acquire some private

property. Our conclusion is that by constitutional

standards it did not acquire enough.”’

In the light of the above authorities we conclude that the

reasonable and ordinary use of air space above land is a

property right which cannot be taken without the payment

of compensation.

The next problem is whether an unconstitutional taking

has resulted in the instant case. In considering thix point

the distinction must be made between zoning regulations

which merely restrict the enjoyment and use of property

through a lawful exercise of the police power, and a taking

of property for’a public use, for which compensation must

be paid. In the former instance, where the owner of prop-

erty is merely restricted in the use aud enjoyment of his

property, he is not entitled to compensation. A common

example of such an authorized restriction is the imposition

on property of building set-back lines. Gorteb. v. Fos

(1927), 274 U.S. 603, 71 L, Ed. 1228, 47°S. Ct. 675: Bd. of

Zoning Ap. of Decatur v. Jehovah's Witnesses (1954), 235

Ind. 83, 117 N.E. 2d-115: Geldsmith: v. City of —

(1935). 208 Ind. 465, 196 N. E. 525.

However, mere regulation under the police power which

can be modified at the discretion of regulating authority is

wholly different from the taking or appropriating of pri-

vate property by the government for a specific public use.

The latter ean be effected only if compensation is provided.

Pennsylvania Coal Co. v. Mahon (1922), 260 U.s. 393, 67

8a

L. Ed: 322, 43 S.Ct. 158; 1 Metzenbaum, Law of Zoning

70-76 (2d ed. 1955) ; Griggs-v. Allegheny, supra.

With this distinction established, it becomes apparent

that the City of Gary has attempted, by the passage of the

‘ordinance under consideration, to take and appropriate to

its own use the ordinarily usable air space of property

adjacent to the Gary -Airport without the payment. of com-

pensation. .

True, the ordinance provided that an aggrieved land-

owner might apply for a variance, but there is no provision

for compensation: in event recourse to such procedure is

unsuccessful. In any event, a variance need not be sought

under the rule requiring exhaustion of administrative rem-

edies when a zoning ordinance is invalid as an entirety.

Village of Euclid v. Ambler (1926), 272 U.S. 365, 71 L. Ed.

303, 47 S.Ct. 114; 1 Metzenbaum, .op. cit. supra-at 708.

An unconstitutional law cannot be made constitutional by

merely providing ‘a procedure which gives a complaining

party the right of judicial review. Finney*y. Johnson

(1962), 242 Ind. 465, 179 N.E. 2d 718.

Our attention has been called to the fact that the pream-

ble of the ordinance shows that its purpose is to exercise

the right of eminent domain under the guise of the police

power.’ However, as has been stated:

‘<Phe courts are not bound by mere forms, nor are

they to be misled by mere pretences. They are at

liberty—indeed, are under a solemn dufy—to look at

the substance of thiags, whenever they enter upon the

inquiry whether the legislature has transcended the

limits of its authority. If, therefore, a statute pur-

porting to have been enacted to protect the public

health, the publie morals, or the public safety, .. . is

?** WHEREAS, it is necessary in the interest of the public health,

public safety, and general welfare, that creation or establishment.

of airport hazards be prevented to the extent legally possible by

exercise of the police power, . . .’’ Gary Ordinance No. 2897

[dated Sept. 19, 1949].

9a. |

a palpable invasion of. rights secured by the funda-.

mental iaw, it is the duty of the courts to 80 adjudge,

and thereby give effect to the Constitution.’

Mugler v. Kansas (1887), 123 U.S. 623,.661, 41 L. Ed.

205, 8 S. Ct. 273; see also t 1 Metzenbaum, op. cit. supra -

at 77-79.

The issue before us was considered by the Sur-eme Court

of’New Jersey in the case of Yara Engineering Corp. v.

Newark (1945), 132 N.J.L. 370, 373, 40 A. 2d 559, 561. The _

City of Newark had adopted an airport zoning ordinance -

creating airport approaches and turning zones in the vicin-

_ ity of the Newark Municipal Airport and regulating and

restricting the height of structures in these zones. A pro-

ceeding was brought to set aside the ordinance. In holding

the ordinance unconstitutional, the Supreme Court of New

Jersey stated:

‘“*We conclude that this ordinance .. . is in fact the .

taking of private property without due process of law,

in violation of the Fourteenth Amendment of the

United States, Constitution, , and also the taking: for

public use without just compensation, in violation of

article 1, paragraph 16 of the State Constitution.

‘‘The City may not under the guise of an ordinance

acquire rights in private property which it may only

acquire by purchase or by the exercise of its power of

eminent domain.... ”’

‘See also cases cited at Anno. 77 A.L.R. 2d 1362.

The federal government has recognized the requirement

that easements for the glide angle needed for landing and

take-off must be acquired by condemnation proceedings

and payment of just compensation. This is shown by the

condemnation proceedings in United States v. 48.10 Acres

of Land (S.D.N.Y. 1956), 144 F. Supp. 258, and United

States v. 4.43 Acres of Land (N.D.Tex. 1956), 137 F. Supp.

567, for air easements over property adjoining federal

bases. .

10a

On the basis of the above authorities, we conclude that

the ordinance purported to authorize an unlawful and un-

constitutional appropriation of property rights without

payment of compensation. ©

Appellee finally asserts that even though the ordinance

unlawfully may have effected a taking of the land subse-

quently acquired by the toll road without compensation, -

it was the duty of ‘‘any immediate property owner’’ to —

protect ‘himself by inverse condemnation proceedings un-

der authority provided in the Eminent Domain Statute,

citing §$ 3-1706 - 3-1711, Burns’ 1946 Repl., and that they

having failed to do so, their rights must be considered .

waived. ’

Appellees’ position is not tenable for two reasons: The

statute providing for inverse condemnation proceedings

presumes (1) that the taking was an accomplished fact,

and (2) that it took place under some constitutional au-

thority, with respect to which, however, the prescribed

’ procedure had not been followed. In this case there had

not been any actual encroachment upon or taking of the

air space over the land in qnestion within the area specified

by the ordinance. This was impossible, because the power

lines which are adjacent to, parallel with, are much higher

than the toll road complained of. Furthermore, as here-

tofore discussed, the ordinance, upon which appellees’ al-

leged property right is based,-was wholly void insofar as

it purported to authorize the taking of private property

without compensation therefor. Under these circumstances,

as conceded by appetiees in their brief, ‘‘If it [the ordi-

nance] is wholly void then of course no rights are created

thereby and it can be the basis for nothing and may be col-

* laterally attacked.’’,

Judgment is anni and the trial court is directed to

sustain appellant’s motion for a finding for defendant [ap-

pellant], which motion was filed at the conclusion of appel-

lees’ evidence. . ;

Myers; C. J., Artr urn & Lanpis, JJ., concur.

Jackson, J., dic-ents [without opinion].

ee

lla

APPENDIX B

_ Ordinance No. 2897

AN ORDINANCE REGULATING AND RESTRICTING

THE HEIGHT OF STRUCTURES, AND OTHER-

WISE REGULATING THE USE OF PROPERTY IN

THE VICINITY OF THE GARY MUNICIPAL AIR-

PORT BY CREATING AIRPORT APPROACH AND

TURNING ZONES AND ESTABLISHING THE

BOUNDARIES THEREOF; DEFINING CERTAIN

. TERMS USED THEREIN; PROVIDING FOR AP-

‘PEALS THEREFROM; AND IMPOSING PENAL-

TIES FOR VIOLATION THEREOF.

Wuenreas, airport hazards endanger the lives and proj)-

erty of users of the Gary Municipal Airport and the oceu-

pants of land in its vicinity, and in effect reduces the size

of the area available for the landing, taking off, and ma-

neuvering of aircraft, thus tending to destroy or impair

the utility of the a and the public investment therein,

and~

Wuerras, the Board of Aviation Commissioners of the

City of Gary has, through the power granted it under the

Airport Act of 1945 and amendments thereto, adopted cer-

tain standards for the safe descend, landing and ascend of

aircraft and for the proper and safe use of the Gary Mu-

nicipal Airport and landing field in respect to height and

location of structures and the use of land, and

Wuenreas, it is necessary in the interest of the public

health, public safety, and general welfare, that creation or

_ establishment of airport hazards be prevented to the extent

legally possible by exercise of the police power, and

Wuereas, the Board of Aviation«Commissioners of the

City of Gary has by Resolution recommended the anaption

of this ordinance, <—

Now, THEREFORE, Punquane te the powers PO

virtue. of Section 9,Chapter 360, of the Acts of 1945;

Chapter 174 of the Acts of 1947; and Chapter 109 of

©

12a

the Acts of 1949, as well as its general policé powers,

Be Ir Orparnep by the Common Council of the City of

Gary, Lake County, Indiana, as follows:

Section 1: S#orr Trrte—This ordinance shall be known

and may be cited as the ‘Airport Zoning Ordinance of the

; City of Gary’’. :

Section 2: Derimnriions—As used in this Ordinanée, un-

less the context otherwise hein soerans

(a) ‘‘Airport’’ means ‘the Gary Munic

compassirig the area bounded by the Calumet“Riyer yn the

south, the E. J. & E. Railroad right of way on tir

and by the U. S. Highway No. 12 on the north and east.

(b) ‘‘ Airport hazard”’ means any structure or use of

land which obstructs the air space required for the. flight

of aircraft in landing or taking off at the airport or is

otherwise hazardous to such landing or taking off of air-

craft.

(c) ‘‘Non-conforming use’’ means any structure or use

of land which does not conform to a regulation prescribed

in this ordinance or any amendment thereto as of the’effec-

tive date of such regulations. :

(d) **Person’’ means any individual, firm, co-partner-

ship, corporation, company, association, jomt stock associ-

ation or body politic and includes any trustee, receiver,

— or other similar representative thereof.

— (é) ‘‘Struecture’? means any object constructed or in-

stalled by man, ineluding but without limitation buildings, ~

towers, smoke stacks, and overhead transmission lines.

(f) ‘‘Landing area’’ means the area of the Airport used

for the descend, landing, taking off or taxiing of aircraft.

Section 3. Zones—In order to carry out the purposes

of this ordinance, all the land within the boundaries of the

iary Municipal Airport and within two miles of the end

of any proposed runway is hereby divided into:

; 13a

(a) Turning Zones ”

(b) Outer Area Approach Zones

(c) Inner .Area Approach Zones

(d) Transition Zones

the boundaries of which are shown on the Gary Airport

Zoning Map dated April 12, 1949, and which is made a part .

hereof and incorporated -herein by reference, two copies

of which Map are on file in the office of the City Clerk and

in the Office of the City Engineer, said Map shall be avail-

able for examination at all times that said respective:

Offices shall he open for business. There is hereby incor-

porated herein by reference and made a part hereof a

Lay-Out Plan or Map, dated April 12, 1949, to be used in

connection with the Gary Airport Zoning Map, two copies.,

- of whigh said Lay-Out Plan are on file in both the offices

'. of the City Clerk and City Engineer, and which said Maps

shall likewise be available for éxamination.

Section 4: Herter Limrrs—Except as otherwise pro-

vided in this ordii.ance, no structure shall be erected, al-

tered, or maintained, in any airport approach zone or air-

port, turning zone to a height in excess of. the height limit

herein established for such zone. For purposes of this

regulation, the following height limits are hereby estab-

lished for each of the zones in question: :

(a) Turning Zone, 150 feet *

(b) Outer Area Approach Zone, 150 feet

(c) Inner Area Approach Zone as indicated (extending

6,000 feet from the end of the proposed runway) not

to exceed height greater than permitted of 40 to

1 slope

(d) Transition Zone, height limit based on 7 to 1 slope

from edge of inner area approach zone to maximum

height of 150 feet . t

l4a

ee a

All heicht limits:shall begin at neue of 590 feet above

sea level. ;

Section 5: Nox-Cosxrorminc Use—The reyguiations pre-

scribed in ‘Section 4. of this Ordinance, shall not. be con-

strued ‘to require the removal, lowering. or other change

or alteration of any structure not conforming to the regu-

lations as of the effective date hereof, or othérwise inter-

fere with the continuance of any non-conforming.tuse.

Nothing herein contained shall require any change ‘in the

construction, alteration or intended use of any structure.

the constrnetion or alteration of which was begun prior to

the effective date of this Ordinance, and is diligently prose-

cuted and completed within two years thereof.

Section’ 6: Vantances—Any person desiring to erect any

strueture or increase the height of any structure or use

his property not in’ accordance with, the regulations pre-

~ribed in this Ordinance, may apply for a variance there-.

fret. Such variance shall be allowed where a literal ap-

plication or enforcement of the regulations would result in

practical difficulty or unnecessary hardship.and the relief

crafted would not be contrary to the public interest but

do sulstantia! justice and be in accordance with the spirit

f this Ordinance. AH variances hereunder shall be granted

by the Board of Zoning Appeals of the City of Gary as

hereinafter constituted and all requests therefor shall be

in accordance and under the rules and regulations of. the

‘Board of Zoning Appeals of the City of Gary, and all laws

now in effect in respéct thereto.

s

Section 7: Appears—(a) The Board of Zoning Appeals .

of the City. of Gary shall be and is hereby constituted the

proper Board to which all appeals from decisions rendered

in the énforeement of this ordinance or any other zoning

ordinance sha!l he taken. All such appeals from the de-

cision or ruling of anv: board. ageney or department of the

City of Gary in respect to such zoning ordinances shall -

follow the rules of the said Board of Zoning Appeals, and

l5a

all statutes of the State of Indiana in such case made and

_ provided. ~

(b) Whenever notice of any such appeal shall be served

upon any such board, agency or department of the City of

Gary, it shall be ‘the duty of the secretary, chairman or

department head of any such board, agency or department

to immediately notify in writing the Secretary of the Board

of Aviation Commissioners of such appeal. The said

Board of Aviation Commissioners shall have the power to

imtervene in such proceedings and be heard insofar as such

ruling of decision may affect the operation of said. Munici-

pal Airport.

(ec) No department, board or agency of the City shall

have the power to grant variances hereunder except such

Board of Zoning Appeals, and nothing contained herein

shall prevent the Board of Aviation Commissioners from

appealing such decision or ruliag to the Board of Zoning

Appeals, or prevent said Board of Aviation Commissioners

from appealing any decision, grant or ruling of said Board

of Zoning A ppeais to a proper court as now provided by

law.

(d) Whenever any petition or application shall be filed

with the Board of Zoning Appeals for any variance under

this ordinanee or any other zoning ordinanee affecting said

Airport, the said Board of Zoning Appeals shall immedi-

ately notify the Secretary of the Board of Aviation Com-

wince of such application or petition and the said

Board of Aviation Commissioners shall be granted an op-

portunity to be heard in respect thereto.

(e) An appeal from the decision of any such Board,

agency or department of the City of Gary to the Board

of Zoning Appeals shall stay all proeeedings of the action

appealed from unless tite eggricved person or the Board:

of Aviation Commissioners certifies to the Board of Zening

Appeals after notice of appeal has been filed with it. that

-by reason of the facts stated in the certificate, a stay would

(A

ay a

in his or its opinion cause unusual peril to life or property.

In such ease, proceedings shall not be staved otherwise

than by order of the Board of Zoning Appeals on notice to

the Board of Aviation Commissioners on due cause. shown.

(f) The Board of Zoning Appeals shall have the same

power as is.now granted unto it by law in relation to other

zoning matters.

Section 8: Whenever and wherever eetoremnnt of this

ordinance necessarily involves property or real estate situ-

ated within the’ boundaries of another municipality, the

Board of Zoning Appeals is hereby granted authority to

_ act, if in eonformance with the ordinances, rules, or regu-

lations of such adjoining municipality, or may act jointly

with a Board of Zoning Appeals of any other municipality;

if such provisions shall be made.by such. municipality, it

being the intention hereof to permit said Board of Zoning

_Appeals-to cooperate and coordinate in its efforts with any

other ageney or board of any adjoining municipality to-

wards enforcement in fact and in spirit of the purposes

and’ intent of this ordinance.

Section 9: The construction, erection or maintenance

of any airport hazard in violation of this ordinance is

hereby declared ta be a public nuisance.

Section 10: Presatties—Each violation of this Ordi-

nance or any regulatien. order. or ruling promulgated

hereunder, shall be punishable by a fine of not more than

$300.00 and each day a violation continues shall be a

separate offense.

‘Section 11: CoNnriicttNc ivicesine here this or-

dinance imposes a greater or more stringent restriction

_upon the use of land thal. is imposed or required by any

other ordindnce or regulation. the provisions of this Ordi-

nance shall govern. m

Section, 12: Severasi.rty—If any of the provisions of

the ordinance or the application thereof to any person or

cae d

17a

circumstances held invalid, such invalidity shall not affect

other provisions or applications of the ordinance which —

can be given effect without the invalid provision or appli- -’

cation, and to this end the provisions of this Ordinance are

declared to be severable.

Section 13: This ordinance shall be in fall force and

effeet from and after its passage.

Passed by the Common Council of ‘the City of\Gary,

Lake County, Indiana, this' 19th day d7 Sept., 1949.

Hosart D. WicceRLy

Presiding Officer

Attest: Nick P. Evicu

City Clerk

Presented by me to the Mavor for his approval and sig-

‘nature, this 20th day of Sept., 1949.

Nick P. Euscn

City Clerk

Approved ia ges by me this 20th day of Sept., 1949.

Evcenr H. Swartz

Mayor. City of Gary, Indiana

18a aia

*%

APPENDIX C

Excerpts from Federal aan Act, as Amended (60 Stat. 170,

78 Stat. 158, 49 U.S.C. § 1101)

Sec. 2. As used i in this Act—

(1) “ Administrator” means the Aduiadatrater of the

Federal Aviation Agency. ’

(2) ‘‘ Airport’? means any area of land or water which

is used, or intended for use, for the*landing and take-off of

aircraft, and any appurtenant areas which are used, or in-

tended for use, for airport buildings or other airport facili-

ties or rights-of-way, together with all airport —

and facilities located thereon.

a, (3) ‘Airport development” means (A) any. work in-

volved in constructing, improving, or repairing a public

airport or portion thereof, including the construction, al-

teration, and repair of airport passenger or freight ter-

minal buildings and other airport administrative buildings

and the removal, lowering, relocation, and marking and

lighting of airport hazards, and (B) any acquisition of

land or of any interest therein or of any easement through

or other interest in air space, which is necessary to permit

any such work or to remove or mitigate or prevent or limit

the establishment of, airport hazards: but such term does

not include the construction, alteration, or repair of airport

hangars. ’

(4) ‘Airport hazard’? means any structure or object of

natural growth located on.or in the vicinity of a publie air-

- port,.or any use of land near such airport, which’ obstructs

the airspace required for the flight of aircraft in Janding

or taking off at such airport or is otherwise hazardous to

such landing or taking off of aircraft. ; aa

(5) ‘*Project’’ means a project for the accomplishment

of airport devélopment with respect‘to a particular airport.

? * © e

19a

~

(7) ‘Public agency’’ means the United States Govern-

-. Inent or an agency thereof; a State, or Puerto Rico, the

Virgin Islands, and Guam, or an agency of any of them :

a, municipality or other political subdivision ; or a tax-

supported organization.

(8) ‘‘Public airport’? means any airport which is used

or to be used for public purposes, under the control of a

public agency, the landing area of which is publicly owned.

(9) ‘‘Sponsor’’ means any public agency which, either

individually or jointly with one or more other public agen-

cies, submits to the Administrator, in accordance with this

' Act, an application for‘a grant of funds for airport devel-

opment.

Aa « 2 *

NATIONAL AIRPORT PLAN

*Formulation of Plan

Sec.:3. (a) The Administrator is- hereby authorized and

directed to prepare, and thereafter, at least three month=

_ prior to the close of each fiscal year, to revise, a national

plan for the development of public airports in the United

States, including Puerto Rico and the Virgin Islands. Such

plan shall specify in terms of general location and type of .

development, the projects considered by the Administrator

to be necessary to provide a system of public airports ade-

quate to anticipate and meet the needs.of civil aeronautics,

- which projects shall include all types of airport develop-

_ment eligibile for Federal Aid under this Act and shall not

be limited to any classes or categories of public airports.

In formulating and revising such plan, the Administrator

shall take into account the needs of both air commerce and

private flying, the probable technological developments in

the science of aeronautics, the probable grgqwth and re-

quirements of civil aeronautics, and such other considera-

tions as he may deem appropriate, and shall to the extent

feasible, consult,-and give consideration to the views and

«

“

20a

recommendations of the Civil Aeronautics Board, the

States, Puerto Rico and the Virgin Islands, and their ‘polit-

ical subdivisions, and shall, to the extent feasible, consult

and give consideration to the views and: recommendations

of, the Federal Communications Commission, and shall

make all. reasonable efforts to gooperate with that Com-

mission for the purpose of eliminating, preventing, or

minimizing airport hazards caused by construction or op-

eration of any radio station. In carrying out this section

the Administrator is authorized : to make such surveys,

studies, examinations, and investigations as he may deem

necessary. ;

e my . e .

FEDERAL-AID AIRPORT PROGRAM

Src. 4. (a) In order. to bring abowt, in conformity. with

the national airport plan prepared and from time to time

revised as provided,in this Act, the establishment of a

Nationwide system of public airports adequate to meet the

present and future needs of civil aeronautics, the Admin-.

istrator is authorized, within the limits of the. obligation

authority provided in section 5 to make grants of funds to

sponsors for airport development and for advance plan-

ning and engineering therefor as hereinafter provided.

Announcement of Program

(b) It shall be the duty of the Administrator to make

public by January 1 of each year the proposed program of

airport development intended to be undertaken during the |

fiscal year next ensuing, and he may revise such program ~

to the extent he finds necessary to accomplish the purposes

of this Act. ~

2la

SUBMISSION AND APPROVAL OF ADVANCE PLANNING AND

ENGINEERING PROPOSALS AND PROJECTS

Submission

_ Sec. 9. (a) Subject to the provisions of subsections (b)

and (c) of this section, any public agency, or two or more

public agencies acting jointfy, may submit to the Admin-

istrator an advance planni g and engineering proposal or

a project application in such form, and containing such

- supporting information, as may be prescribed by the Ad-

ministrator and setting forth the airport development pro-

posed to be undertaken. No project application shall pro-

pose airport development other than that inciuded in the

then current revision of the national airport plan formu-

lated by the Administrator under this Act, and all such

proposed development shall be in accordance with stand-

ards established by the Administrator, including standards

- for site location, airport lay-out, grading, drainage, seed-

ing, paving, lighting, and safety of approaches.

— 2 2

PROJECT SPONSORSHIP ,

» t 3

Src. 11. Asa condition precedent to his approval of a

project under this Act, the Administrator shall receive as-

surances in writing, satisfactory to him, that—

, (1) the airport to which the project relates will be

available for public use on fair and reasonable terms

and without unjust discrimination ;

- (2) such airport and all facilities thereon or con-

nected therewith will be suitably operated and main-

tained, with due regard to climatie and flood condi-

_ tions; | |

(3) the acrial approaches to such airport will’be ade-

quately cleared and protected by removing, lowering,

relocating, marking, or-lighting or otherwise mitigat-

ing existing airport hazards and by preventing the

establishment or creation of future airport hazards ;

22a -

(4) appropriate action, including the adoption of

zoning laws, has-been or will be taken, to the extent

reasonable, to restrict the use of land adjacent to or.

in the immediate vicinity of the airport to activitiess

and purposes compatible with normal airport opera-

tions including landing and take-off of aircraft;

(5) all the facilities of the airport developed with

Federal aid and all those usable for the landing and

take-off of aircraft will be available to the United

_ States for use by military and naval aircraft in com-

mon with other aircraft at all times without charge, |

except, if the use by military and naval aircraft shall

be substantial, a reasonable share, proportional to such, .

use, of the cost of operating and maintaining the facili-

ties so used; , |

(6) the airport operator or owner will furnish with-

out cost to the Federal Government £@f use in connec-

tion with any air traffic control activities, or weather-

reporting activities and communication activities re-

lated to air traffic control, such areas of land or water,

or estate therein, or rights in buildings of the sponsor

as the Administrator miay consider necessary or desir-

able for construction at Federal expense of space or

facilities for such purposes ;

(7) all project accounts and records will be kept in

accordance with a standard system of accounting pre-

scribed by the Administrator after consultation with

‘appropriate public agencies; ps

(8) the airport operator or owner will submit to the -

Administrator such annual or speciai airport financiaF

and operations reports as the Administrator may rea- .

sonably request; and |

(9) the airport and all airport records will be avail-

able for inspection by any duly authorized agent of the

Administrator upon reasonable request.

To insure compliance with this section, the Administrator

shall prescribe such project sponsorship requirements, con-

on

23a

sistent. with the terms of this Act, as he may deem neces-

sary. Among other steps to insure such complignee the

Administrator is authorized to enter into contracts with

public agencies, on behalf of the United States. Whenever

the Administrator shall obtain from a sponsor any area of

land or water, or estate therein, or rights in buildings of

the sponsor and shall construct théreon at Federal expense

space or facilities, he is authorized to relieve the sponsor

from any contractual obligation entered into under this Act

to provide free space in airport buildings to the Federal

“Government to the extent he finds such space no longer .

required for. the purposes set forth in paragraph (6) of

this section.

GRANT AGREEMENTS _

Sec. 12. Upon approving an advanee planning and engi-

neering proposal or a prpject application, the, Administra- |

tor, on. behalf of the United States, shall transmit to the

sponsor or sponsors of the advance planning and engineer-

ing proposal or project application an offer to pay the

United States share of the planning and engineering costs

or allowable project costs. Any such offer shall be made

upon such terms, and subje.’ to such conditions, as the

Administrator may deem héeessary to meet the require-

ments of this Act and the regulations prescribed there-

under. Each such offer shall state a definite amount as

the maximum obligation of the United States payable from

funds authorized by this Act, and shall stipulate the obli-

gations to be assumed by the sponsor or sponsors... If and

when any such offer is accepted in writing by the sponsor

or sponsors to which it is made, such offer and acceptance -

shall comprise a grant agreement constituting an obliga-

tion of the United States and of the sponsor‘or sponsors

so accepting, and thereafter the amount stated in the ac-

cepted offer as the maximum obligation of the United

States under, such grant agreement shall not be increased —

by more than 10 per centum. Unless and until such.a grant

agreement has been executed, the United States shall not

pay, nor be obligated to pay, any portion of the costs which

have been or may be incurred.

24a s

APPENDIX D

Indiana Tall Structures Act (5 Burns Ind. Stat. 14-327 et seq

1963.Cum. Supp.)

14-327. Public use airport—Unobstructed conditions for

safe flight——The safety, welfare and protection of persons

and property in the air and on the ground and of the main-

tenance of. electronic communication within this state re-

quires that the navigable airspace overlying the state and

the approaches to and the air traffic pattern area of any

public use airport in this state be maintained in a reason-

ably unobstructed condition for the safe flight of aircraft.

To that end, the location and height of structures and the

use of land thereto related, is regulated. [ Acts 1957, ch. 23,

§ 1, p. 37]

14-328. Definitions.—As used in this act [$§ 14-327—14-

341], unless the context- otherwise requires: Commission

means the aeronautics commission of Indiana. Structure

means any object constructed or installed by man includ-

ing, but not limited to, buildings, towers, smokestacks, elec-

_ tronic transmission or receiving towers and antennae, and

overhead transmission lines ;

Permit means a permit issued by the commission under

the provisions of this act;

Public use airport means any area of land or water, or

both, desjgned and set aside for the taking off and landing

of aircraft an@ utilized or to be utilized in the interest of

the public for such purposes; the term public use airport.

does not mean nor include a private landing field or per-

sonal landing field constructed and used primarily for the

benefit of the owner thereof, nor shall it include any mili-

tary airport or any other airport occupied by any federal

or state military branch of government using such airport

for military air purposes.

Person means and includes individuals, trustees, receiv-

ers, partnerships, associations, corporations for profit and

3

a

¢

25a

not for profit, religious corporations, municipal corpora-

tions and bodies politic. [Acts 1957, ch. 23, § 2, p. 37.]

14-329. Permit required to erect, add to the height of or

replace structure near public use airport.—Until a permit.

therefor has been issued by the commission no person shall

erect, add to the height of or replace any structure, unless

such replacement only involves the repair, maintenance or

restoration of an existing structure:

(a) within an area lying one thousand five hundred

[1,500] feet on either side of the extended center line of a

_runway or landing strip for a distance of two [2] miles

from the nearest boundary of any public use airport which.

will result in a structure extending to a height of more

than one hundred fifty [150] feet above the level of such

runway or landing strip; nor, within that portion of such

area that is within a distance of three thousand [3,000]

feet from such nearest boundary, that will result in a strue-

ture extending higher than a height above the level of such

runway or landing strip determined by the ratio of one [1]

foot vertically to every twenty [20] feet horizontally meas-

ured from such nearest boundary: :

,b) at any other place within this state which will result

in a structure.extending more than five hundred [500] feet

‘above the highest point of land within a one [1] mile radius

from such structure. [Acts 1957, ch. 23, § 3, p. 37.]

14-330 Excessive height—Restrictions—Issuance of per-

mit.—No permit shall! be issued to erect, add to or replace

any structure which will extend more than,one thousand

[1,000] feet above the highest point of land within a one

[1] mile radius from the location of the structure, except

as hereinafter provided, nor shall any person erect, add to

or replace any structure for which a permit is required

that exceeds the height allowed by the permit.

The commission may issue a permitgto erect or add to a

structure which will extend to a height of more than one

26a

thousand [1,000] feet above the highest point of land within

a one [1] mile radius from the location of the structure

proposed to be erected or added to if such proposed struc-

ture will not be higher than fifty [50] feet above the height ©

of the highest structure in existence on the effective date —

of this act [§§ 14327—14-3411 which is within a distance

of one\[1] mile from the location of the structure proposed

_ to be erected or added to.

In any instance where permission of the federal govern- °

ment, or some agency thereof, is required for the erection

of an electronic structure the commission shall not issue a

permit for the erection thereof until federal permission is

granted. . Tis

_ ‘Whenever any person proposes to erect, add to the height

of or replace any structure, which would be. effected [af-

fected] by the provisions and requirements of section 3(a)

[§ 14-329] of this act, obtains consent in writing with veri-

fication, to erect, add to the height of or replace any such

structure from the owner of the public use airport in the

area, then the issuance of any permit under this act shall

-not be required, provided, however, that such person shall

file a copy of such consent with the commission at. least

thirty [30] days prior to any work, construction, or instal-

ation on the proposed structure. [Acts 1957, ch. 23; § 4,-

p. 37.] |

Comptler’s Note. me bracketed word ‘‘affected’’, was

inserted by the compiler.

14-321. Application for permit.—Application for a per-

mit shall be made to the commission on a form prescribed

and furnishefl by the commission.

It is not necessary that ownership of, option for or + wie

possessory right that to a specific location site be held by

the applicant before application for a permit is filed with

the commission but any permit granted by the commission

shail, among other things, state the location, either specif-

ON NN SEE SRILA nE eS, Se OR TON SAS OE we ee ORES 7 ly

27a ;

ically, or within a definite area, and also the maximum

height allowed for a structure. [Acts 1957, ch. 23, § 5,

p. 37.] thee ie

14-332. Visual identification characteristics specified in

permit.—Every permit granted shall also specify what, if :

any, obstruction markers, markings, lighting or other iden-

tification shall be installed on or in the vicinity ofthe struc-

ture. Such -visual identification characteristics’ ygguired —

shall conform to federal laws and regulations whe appl

cable and, if permitted under federal laws and regulations,

where lighting is specified the commission may require that

the lights, or certain ones thereof, flash at the intervals

and in a pattern specified in the permit. [Acts 1957, ch. 23,

~ § 6, p. 37.] Sai

14-333. Investigation of application for permit—Notice

of determination—Hearing, gequest of applicant for—Ap-

pearance of parties.—Upon receiving an application for a

permit the commission shallymake’ such investigation as

may be necessary to properly process the application under

_ this act [§§ 14-327—14-341]. Such investigation shall be

conducted so as to determine, in the opinion of the commis-

sion, a location and height for a structure for the particular

purpose proposed in the location proposed as will best |

serve the safety and welfare of persons and property in

the air and on the ground and other technical and economic

factors involved.: In considering and disposing of the ap-

plication the safety and welfare of persons and property

in the air and on the ground shall be deemed paramount to

economic and technical factors.

If, upon such investigation, the commission determines

that a permit should not issue or that the ‘height or loca-+

tion should be other than as applied for, the commission

shall thereupon notify the applicant in writing of its deter-

mination. Such notification may be served by delivering it

personally to the applicant or by sending it by first class.

“mail to the applicant at the address specified in the appli-

28a

cation. Such determination shall become final twenty £20],

days after notification thereof is served unless the gppli- —

cant, within such twenty [20] day period, requests in writ-

ing that a hearing be held before the commission with ref-

erence to the application. All such hearings shall be open

to the public. “Any person interested may appear and be

heard either in person or by counsel ‘and may, present such

-evidence and testimony as may be pertinent. [Acts 1957,

ch. 23, § 7, p. 37.) ! : ‘

.. 14334. Conduct of hearing.—Any hearing conducted

pursuant,to the purposes and provisions: of this act [§§

14-327—-14-341] shall be conducted in accordance with

Chapter 360, indiana Acts of 1945, as amended [§§ =

14-325]. [ Acts 1957, ch. 23, § 8, p. 37.]

14-335. Action of commission—Procedure for appeal wel

' judicial review.—Procedure for appeal and judicial review -

of any commission action under this act shall be in accord-

ance with existing law and procedure. [Acts 1957, ch. 23,

§ 9, p. 37.)

14-336. Order-to show cause wht y application for permit

need not be obtained--Date for hearing.—Iin any instance.

where the commission learns or has reasonable grounds to

believe that any person is erecting or adding to a structure

that would be subject to the provisions of this act [§$§ 14

327—14-341]. but concerning which no application for a

permit has been.filed, it may on its own’ motion issue an

order to such person to appear before the comrnission and

show cause why an application for a permit.to erect or add

to the structure need not be obtained. A date for a hear- ,

ing thereon. shall be set out in such order. [Acts 1957, ch.

23, § 10, p. 37.]

14-337. Remedies of commission—Enforcement of law,

and rules, regulations or orders of commission.—In addi-

tion to any other remedy, the commission may institute in

any court of competent jurisdiction an action to prevent,

restrain, correct or abate any violation of the provisions

a

a Metitt REAR GREER. She eT ts \ SER, SAA <VCRRD,. cae

29a.

of this act [§§ 14-327—14-341] or of any rules, regulations

or orders of the commission issued pursuant thereto. The ~

court may grant such relief, by way of injunction or other-

wise, as may be proper under all the facts‘ and -circum-

stances of the case in order to fully effectuate the purposes

of this act and the rules, regulations and orders of the |

-commission issued pursuant thereto. [Acts 1957, o, 23,

$11,p.37.] °

14-338. Rules ‘inal regulations, adoption and promulga-

tion by commission—Administrative forms furnished .by

" commission.—The commission shall adopt and promulgate, ~

and may from time to time amend or rescind, reasonable

rules and regulations for the administration of this act

[$§ 14-327—14-341].

_ The tommission shall prescribe and furnish forms neces-

sary for the administration of this act. [Acts 1957, *. 23,

§ 12, p. 37.]

14-339. Exemption of area covered by airport zoning

regulations—Change in height or, location of prior struc- -

ture.—This act [§§ 14-327—14-341] shall not apply in any

instance where the proposed erection, addition to or re-

placement of a structure is located in an area for which

airport zoning regulations have .been adopted pursuant to

law are in effect. :

This act shall not be copéfrued to require any change in

height or location of any ‘structure in existence on the ef-

fective date of this act. [Acts 1957, ch. 23, § 18, p. 37.]_

14-340: Existing buildings or structures—Radio towers

—Railroads—A pplication of law.—The provisions of this

act [§§ 14327—14-341] shall not apply iti respect to the

location, relocation, erection, construction, reconstruction,

change, alteration, maintenance, removal, use or enlarge- os

ment of any existing buildings or structures, excepting any

radio towers, nor shall the provisions of. this act apply to

any buildings or structures constructed in the future by

- 23, § 14, p. 37.]

ieee Sera!

railroads, unless ouch building or structure lies within an

approach zone of an existing airport as such zone is de-

scribed in section 3(a) hereof [§ 14-329]. [Acts 1957, ch.

_ 14341. Penalty for violation.— Whoever violates or fails

to comply with the provisions of this act [§§ 14327—

14-341] is punishable by.a fine of not less than ten doHars

{$10.00] nor moré than five hundred dollars [$500]. Each

day that such violation or failure continues is a separate

offense. [Acts 1957, ch. 23, § 15, p. 37.]

APPENDIX E

The Provision of the Indiana Enabling Statute Pertaining to

the Adoption of Airport Zoning by a Municipality (5 Burns

' Ind. Stat. 14-422)

14-422. Air space—Zoning—Condemnation—E ffect —

Regulations.—In order to provide free.air space for the

’ safe descent, landing and ascent of aircraft and for the

proper and safe use of any airport or landing field acquired

or maintained under’ this act [§§ 14-412—14-433], such

board of aviation commissioners is hereby given the right,

power and authority, subject to approval and adoption, as

provided by law, by the council of such municipality to

establish and fix a restricted zone or zones: for such dis-

tance in any direction from the boundaries of such airport

or landing field, within which zone or zones so established,

‘ as in the opinion of said board is necessary and. practi-—

cable, no building or other structure shall be erected high

enough to interfere with the descent of an aircraft at such

gliding angle as may. be deemed necessary for safety for

the usual type of operation that is conducted at such air-

port or landing field and said board may in the name of

suck municipality, acquire by condemnation, upon the pay-

ment cf due compensation as hereinafter provided in this -

act [§§ 14-412—14-433], the right to prevent the erection

> EL OIE SEA SEIT LE OL IE et BE ETRE Pe eI INGE FABER HEALS 8 EEC

Sle

_ of, and to require the ‘deni of, all buildings, towers, é

poles, wires, cables and other structures, ‘and ali trees

within such zone or zones which interfere with such gliding

angle or so much of any structure or trees as interferes

with such gliding angle; and when so condemned no permit

issued by any department or office of any such municipality

or by any state or other authority for the erection of any

structure inside any such zone or zones shall be effective

and valid, unless approved by the board of aviation com-

missioners of such municipality. The establishing of any

' such restricted zone or zones outside of any such port or

field as is herein provided, in connection with the condem-

nation of such rights in the land for the same, shall be

understood to be condemnation and ,the perpetual annihi-

Jation of all rights of the owners of such property within

such zone or zones to erect or maintain any building or

structure whatever or any part. thereof within such zones

which will interfere with such gliding angle; or such result _

may be accomplished by absolute condemnation of the land,

with perpetual and irrevocable free license to use and oc-

cupy such land within such zone for al] purposes except the -

erection of: buildings dr other structure above the height so

prescribed.

The jurisdiction of each municipality is hereby extended

to the promulgation, administering and enforcement of air-

port zoning regulations to protect the approaches of any

airport which is owned by said municipality but located

wholly or partially outside the corporate limits of said

municipality. Incase of conflict’ with any airport zoning

or other regulations promulgated by any municipality, the ©

regulations adopted pursuant to this section shall prevail.

The zoning’ jurisdiction hereby granted shall, when exer-

cised, be-exclusive as against any such jurisdiction granted

by any other law of this ‘state now or hereafter adopted

unless such other law specifically provides otherwise.

32a |

All airport zoning regulations adopted under this act _

[$§ 14-412—14-433] shall be reasonable and none shall im-

pose. any requirement or restriction which is not reason-

ably necessary to effectuate the purposes of this act [§§

14-412-—14-433]. In determining what regulations it may

adopt, each municipality and joint: airport zoning board

shall consider, among other things, the character. of the

flying operations expected to be conducted at the airport,

the nature of the terrain within the airport hazard area,

the character of the neighborhood, and the uses to which

the property to be zoned is put and adaptable. (Acts 1945,

ch. 190, § 9, p. 591; 1949, ch. 109, § 6, p. 252.]

Amendments. The 1949 amendment substituted the word

‘*council’’ for the words ‘‘governing authority’’ following

the words ‘‘as provided by law, by the”’ in the first sen-

tence. The amendment inserted the present third para-

graph in the section.

33a

APPENDIX F

Excerpis from Grant Agreement Between the City of Gary.

Indiana, and the Civil Aeronautics Administration of

-June 1949 :

DEPARTMENT OF COMMERCE ~

CIVIL AERONAUTICS ADMINISTRATION =

_ WASHINGTON 25

GRANT AGREEMENT

Part I—Offer

Date of Offer June 22, 1949

Gary Municipal Airport

Project No. 9-12-007-701

To: The City of Gary, Indiana

(herein referred to as the ‘*Sponsor’’)

From: The United States of America (acting through the

Administrator of Civil Aeronautics, herein referred to

as thé ‘‘ Administrator’’)

Wuenrgas, the Sponsor has submitted to the Administra-_

tor a Project Application dated March 11, 1949 for a grant

of Federal funds for a project for development of the Gary

Monicipal Airport (herein called the ‘¢ Airport’’), together

with plans and specifications for such project, which Proj-

ect Application, as approved by the Administrator, is here-

‘ by incorporated herein and made a part hereof: and .

Wuereas, the Administrator has approved a project for

development of the Airport (herein caHed the ‘‘Project’’) -

consisting of the following described airport development:

>

Land acquisition; clear and grub; grade; drain; turf;

pave N/S (approx. 100’ x 3100’) and NW/SE (approx..

. 100° x 3600’) runways, apron (approx. 150’ x 175’) and

connecting taxiway; construct entrance road; furnish

and install segmented circle marker and wind indicat-

ing device; approach clearance. ;

34a

_all as more particularly described in the survey map and

plans and specifications incorporated in the said Project

Application ;

Now THEREFORE, pursuant to and for the purposes of

carrying out the provisions of the Federal Airport Act

(60 Stat. 170; Pub. Law 377, 79th Congress), and in con-

sideration of (a) the Sponsor’s adoption and ratification

‘of the representations and assurances contained in said

Project Application, and its acceptance of this Offer, as

hereinafter provided, and (b) the benefits to accrue to the

United States and the public from the accomplishment of

- the Project and the operation ona maintenance of the ~Air- :

port, as herein provided,

THe ADMINISTRATOR, FOR.AND ON BEHALF OF THE UNITED

States, Heresy OFFeRs AND AGREES to pay, as the United

. States’ share of costs incurred in accomplishing the proj-

ect, 25 percentum of the allowable land acquisition costs

‘and 5O percentum of all other allowable project costs, sub-

ject to the following terms and conditions:

1. The maximum obligation of the United States payable

under this Offer shall be $166, 000.00.

2. The Sponsor shall

@) begin accomplishnient of the Project within a rea-

sonable time after acceptance of this Offer, and

(b) carry out and complete the Project in aceordance

with the terms of this Offer, and the eral Air-

port Act and the Regulations promulgated there- .

under by the Administrator in effect on the date

of this Offer, which Act and Regulations are in-

corporated herein and made a part hereof, and

(c) carry out and complete the Project in accordance

with the plans and specifications incorporated

herein as they may be revised or modified with

the approval of the Administrator or his duly au-

thorized representatives.

ah

35a

3. The Sponsor shall operate and maintain the Airport

as provided in the Project Agyramien incorporated -

herein.

4. Any misrepresentation or omission of a suateri il fact

by the Sponsor concerning the Project or tne Spon-

sor’s authority or ability to carry out the obligations

assumed by the Sponsor in accepting this Offer shall

terminate the obligation of the United States, and it is |

understood and agreed by the Sponsor in accepting »%

this Offer that if a material fact has, been misrepre-

sented or omitted by the Sponsor, the Administrator

on behalf of the United States may recover all grant

payments made. ;

5. The Administrator yeuernis the right to amend or

withdraw this Offer at any time prior to its acceptance ,

by the Sponsor. *

6. This Offer shall expire and the U aited States shall not

be obligated to pay any of the allowable costs of the

Project unless this Offer has been accepted by the

‘ Sponsor within 60 days from the above date of Offer

or such longer time as may be prescribed | by the Ad-

’ ministrator in writing.

7. The Administrator, i in saileins this offer in behalf of

the United States, recognizes the existence of an agency

relationship between the City of Gary, Indiana, and

the Director of the Aeronautics Commission of Indi-

ana, created by an Agency Agreement, executed by the

President of the Board of Aviation Commissioners of

- Gary, Indiana on February 14, 1949, and by the Chair-

man of the Aeronautics Commission of Indiana on

_ March 7, 1949, a copy of which is attached hereto and

made a part hereof: and the Sponsor agrees that it

will not amend, modify, or terminate said Agency

_ Agreement without the prior approval, in writing, of

the Administrator or his ‘duly a represen-

tative.

36a «

The Sponsor’s acceptance of this Offer and ratification

and adoption of the Project Application incorporated here-

in shall be evidenced by execution of this instrument by the

_ Sponsor, as hereinafter: provided, and said Offer and ac--— |

’ ceptance shall comprise a Grant Agreement, as provided

by the Federal Airport Act, constituting the obligations

- and: rights 6f the United States and the Sponsor with re-

spect to the accomplishment of the Project and the opera-

tion and maintenance of the Airport. Such Grant Agree-

ment shall become effective upon the Sponsor’s acceptance

of this Offer and shall remain in full force and effect

throughout the useful life of the facflities developed under

the Project but in any event not to exceed twenty vears

from the date of said acceptance.

Usrrep States or AMERICA __

Cres THe ADMINISTRATOR OF CIVIL AERONAUTICS

By Geosce W. West

- Regional Administrator, Region III

_ Part I1—Acceptance

The City of Gary, Indiana, does hereby ratify and adopt -

all statements, representations, warranties, covenants, and

agreements contained in the Froject Application and in-

corporated materials referred to in the foregoing Offer

and does hereby accept said Offer and by such acceptance

agrees to all of the terms and conditions thereof.

Executed this 28th day of June, 1949.’

Cry or Gary, [Spina

(Name of Sponsor)

By O. W. Baver

President, Board of Aviation ©

(SEAL) . _ Commissioners, City of Gary.

- ATTEST: €. H. SHAFER - . ,

Secretary

‘37a oat

‘ CERTIFICATE OF SponsoR’s ATTORNEY.

I, Samcexr S. Desrs, acting as Attorney for the City of

Gary, ‘Indiana, do hereby certify:

That I have examined the terenoing Grant atin

and the proceedings takén by said City of Gary, Indiana,

relating thereto, and find: that the Acceptance thereof br

said City of Gary. Indiana, has been duly authorized and

that the execution thereof is in all respects due and proper

-and in accordance with the laws of the State of Indiana,

' and further that. in my opinion, said Grant Agreement con-

stitutes a legal and binding obligation of the City of Gary.

Indiana, in accordance with the terms thereof.

Dated at Gary, Indiana, this 28th day of June, 1949.

Samcex S. Dcsry

City Attorney ond Attorney for

Board of Ariation Commis-

stoners, City of Gary..

—-—_

UNITED STATES OF AMERICA

- DEPARTMENT OF COMMERCE

P ‘

CIVIL, AERON AUTICS ADMIN ISTRATION

WASHINGTON, D.C.

PROJECT APPLICATION

For Federal Aid for Development of Public Airports

PART I

Prosect INFORMATION

- The City of Gary (herein called the ‘‘Sponsor’’) hereby

makes application-to the Administrator of Civil Aeronau-

ties (herein called the ‘‘Administrator’’) for a grant of

Federal funds pursuant to the Federal Airport Act of 1946

and the Regulations issued thereunder, for the purpose of

-

38a

aiding in financing a project (herein called the «Project sek

for development of+the Gary Municipal Airport (herein

called the ‘‘ Airport’’) located at latitude 41° 37’ N, longi-

tude 87° 22’ W, in the City of Gary of the State of Indiana.

It is proposed that the Project consist of the folowing

described airport development: —

Gary Municipal Airport, first stage construction con-

sisting of grading, drainage, clearing, paving, in re

SE-NW runway and N-S runway approximately 100 x

3600’ together with parking apron and connecting taxi

strip, seeding and sodding adjacent areas, providing

access roadway and auto parking space as well as mis-

cellaneous necessary construction. ;

Also acquisition of a ten acre ‘tract of land within the

airport site at a cost as shown under Item 1.

s es es

PART II

REPRESENTATIONS

In order to induce the United States to enter into a Grant

Agreement=with respect to the Project, the Sponsor hereby

represents and certifies as follows:

1. Lecan ActHority—The Sponsor has the legal power.

and authority: (1) to do all things necessary in order. to

. . undertake and carry out the Project in conformity with, the

Act and the Regulations: (2) to accept, receive, and dis-

burse grants of funds from the United States in aid of the

Project, on the terms and conditions stated in the Act and

the Regulations: and (3) to carry out all of the provisions

of Parts III and IV of this Project Application.

2. Fcsps—The Sponsor now has on deposit, or is in a

position to secure, $168,930.50 for use in defraying the

costs of the Project. The present status of these funds is

as follows: On deposit at Gary Trust & Savings Bank.

39a

The above amount does not include the estimated U. S.

Government share of the land costs, to-wit: $1,350.00.

3. Layp—The Spénsor holds the following property in-

terests in the following tracts of land ... which are to be

developed or wfsed as part of or in connection with the Air-. .

port, all of which lands are identified on the survey map

_ which is attached hereto as Exhibit ‘-A‘’: Fee simple.

4. APPROVALS OF OTHER AcENcres—The Project has been

approved by all non-federal agencies whose approval is re- ©

- quired, namely: Aeronautics Commission of Indiana.

, * * a

_ 7. Futvre Devetopmest— The Sponsor intends ulti-

mately to develop the Airport as proposed in the current

Master Plan Layout for the Airport, which plan has been

mutually agreed upon by the Sponsor and the Adminis-

trator: and intends to proceed with such further develop-

_ment when it is necessary and feasible. The Sponsor fur-

ther represents that pending such further development and

to the extent of its ability to do so. it intends to acquire the

lands.ani interests therein necessary for such development

or.to take such other action as will protect such proposed

lands or interests from any development thereof inconsist-.

ent with the intended airport use.

PART III

Sponsor’s ASSURANCES

In ordér to furnish the Administrator the Sponsor’s as-

surances -required by. the Act and the Regulations. the

Sponsor hereby covenants and agrees with the United

States, as follows:

“1. These covenants shall become effective upon accept-

ance by the Sponsor of an offer of Federal aid for thé

Project or any portion thereof, made by the Administrator,

and shall constitute a part of the Grant Agreement thus -

formed. These covenants shall remain in full foree and

#00 |

effect throughout the useful life of the facilities developed

under the Project but in any event not to exceed twenty

years from the date of said acceptance of an offer of Fed-

eral aid for the Project.

-2. The Sponsor will operate the Airport as such for the

use and benefit of the public. In furtherance of this cove-

nant (but without limiting its general applicability and

effect), the Sponsor specifically agrees that it will keep the

Airport open to all types, kinds and classes of aeronautical

use without discrimination between such types, kinds and

classes; Provided, That the. Sponsor may establish such

_ fair, equal and non-discriminatory conditions to be met by

all users of the Airport as may be necessary for the safe

and efficient operation of the Airport; And Provided Fur-

ther, That the Sponsor may prohibit any given type, kind

or class of aeronautical use of the Airport if such actfon

will best serve the aeronautical needs of the area served by

the Airport. i

3. The Sponsor will not exercise, grant or permit any ex-

clusive right for the use of the Airport forbidden by Sec-'

. tion 303 of the Civil Aeronautics Act of 1938, as amended.

In furtheranze of this covenant (but without limiting its

general applicability’and effect), the Sponsor specifically

agrees that it will not either directly or indirectly exercise, ©

or grant to any person, firm or corporation, or permit any

person, firm, or corporation to exercise, any exclusive right

for the use of the airport for commercial flight operations,

including air carrier transportation, rental of aircraft, con-

duct of charter flights, operation of flight schools or the

carrying on of any other service or operation requiring the

use of aircraft.

4. The Sponsor agrees that it will operate the Airport

for the use and benefit of the public, on fair and reasonable.

terms and without unjust discrimination. In furtherance .

of this covenant (but without limiting it§ general applica- .

bility and effect), the Sponsor specifically covenants and -

agrees:

4ia

-(a) That in any agreement, contract, lease or other ar-

rangement under which a right or privilege at the Airport

is granted to any person, firm, or corporation to render

any servi r furnish any parts, materials or supplies

(including the sale thereof) essential to the operation of

aircraft at the Airport, the Sponsor will insert and enforce

provisions requiring the contractor :

(1) to furnish good, prompt-and efficient service* ade-

quate to meet all the demands for its service* at the

Airport. |

(2) to furnish said service* on a fair, equal and non-

discriminatory basis to all users thereof, and

(3) to.charge fair, reasonable and non-discriminatory

prices for each unit of sale or service*; Provided, That

the contractor may be allowed to make reasonable and

non-discriminatory discounts, rebates or other similar

types of price reductions to volume purchasers.

8. Insofar as is within its powers and reasonably _pos-

sible, the Sponsor will prevent the use of any land either

within or outside the boundaries of the Airport ‘in any

manner (including the. construction, erection, alteration, or

growth of any structure or other object thereon) which

would create a hazard to the landing, taking-off or

“maneuvering of aircraft at the Airport, or otherwise limit

the usefulness of the Airport. This objective will be

accomplished either by the adoption and enforcement of

a zoning ordinance and regulations or by the acquisition

of easements or other interests in lands or airspace, or by

both such methods. With respect to land outside the

boundaries of the airport; the Sponsor will also remove or

cause to be removed any growth, structure, or other object

* Note: oe used in these subsections the word ‘+ service’ : shai! include

furnishing of parts, materials and supplies (including sale thereof) as well

* as furnishing of service.

baat |

| 42a

thereon which would be‘a hazard to the landing, taking-off,

or maneuvering of aircraft at the Airport, or-if such re-

moval is not feasible, will mark or light such growth,

structure, or other object as an airport obstruction or cause

_ it to be so marked or lighted. The airport approach

standards to be followed in performing the covenants ‘con-

tained in this paragraph shall be:tkese established by the

Administrator in Office of Airports Drawing No. 672 dated

September 1, 1946,. unlef@ otherwi ise authorized his the

Administrator.

9. All facilities of the Airport developed with Federal

aid and all those usable for the landing and taking-off of

- aircraft will be available to the United States at all times,

without charge, for use by military and naval aircraft in

common with other aircraft, except that if the use by

military and naval] aircraft is substantial, a reasonable

share, proportional to such use, of the cost of operating

and: maintaining facilities so used, may be charged. The

amount of use to be considered ‘‘substantial’’ and the

charges to be made therefore shall be determined by the

Sponsor and the using agency:

10. The Sponsor will furnish to any civil agency of the

United States, without charge (except for light, heat,

janitor service, and similar facilities and services at the

reasonable cost thereof), such space in airport buildings

as may be reasonably adequate for use in connection with

any airport air traffic control activities, weather-reporting

activities, and communications activities related to airport

air traffic control, which are necessary to the safe and

efficient operation of the Airport and which such agency

may deem it necessary to establish and maintain at the

Airport for such purpose.

13. The Sponsor will maintain a master plan of the Air-

port having the current approval of the Administrator.

‘Such plan shall show building areas, approach areas, and

ae

:

43a

landing areas, indicating present and future proposed

development. The Sponsor will conform to such master

plan in making any future improvements or changes at

the Airport which, if made contrary to. the master plan,

might adversely affect the safety, utility, or efficiency of

the Airport.

PART IV

Progecr AGREEMENT

Tf the Project or any portion thereof is approved by

the Administrator and an offer of Federal aid for such

approved project is accepted by the Sponsor, it is under-

stood and agreed that all airport development included in

such project will be accomplished in accordance with the

Act and the Regulations, the plans and specifications for

such development, as approved by the Administrator, and

the Grant Agreement with respect to the project. |

Ix Wriryess Wuereor, the-Sponsor has caused this

Project Application to be duly executed in its name, this —

11th day of March, 1949.

City or Gary

By O. W. Baper —*y

President, Board sf Aviat ation:

Commissioners. '