# Petition for Writ of Certiorari — Jankovich v. Indiana Toll Road Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0119%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1965 - **Citation:** 379 U.S. 487 ## Text 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 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 wOMAN aL ees es . AN baat A > iy %. > eglrd mente: » ‘ee ee we fre ee at 2 Re WLR YY , MOP Veh ma "y , Pires gh, Sh AMON. ake pie rep AS Beye Fey 2 Ce ED ans Ua PME? LAS le Fae eee ii Se OE aa, * 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: ‘ 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. ' --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0119%3A2. Public record. Not legal advice.