Brief of Amicus Curiae — Jankovich v. Indiana Toll Road Commission

MOTION PU

‘eeT 9. 1964

~

INTHE

Supreme Court of the Hnited States

OcToBER TERM, 1964

No. 60

Nick JankovicH and Pavt Jawxovicr, Oo-ParrNers,

Dorne Business 48-CALUMET AVIATION COMPANY,

Petitioners,

v.

x

Inpi4na Tott Roav Commission, Respondent..

On Writ of Certiorari to the Supreme Court of Indiana

~-

‘MOTION OF THE AIR TRANSPORT ASSOCIATION FOR

LEAVE TO FILE A BRIEF AS AMICUS CURIAE

and

os OF THE AIR TRANSPORT ASSOCIATION

_ AS AMICUS CURIAE

JOHN E. STEPHEN,

GerorGE S. LapHaM, Jk.

. Suite 900.

. 1000 Connecticut Avenue, N. -W.

.- , Washington 6, D. C.

| Attorneys for Amicus Curiae

October 9. 1964

Paess or Brnon 8. ADAMS, WASHINGTON, D.C.

=>»

?

ewe Court, 0, &

IN THE

——- Court of the Hnited States

Comme TERM, 1964

: = e ee

he

Nick JANKOVICH and PavuL JANKoviIcH, Co-PartNErs,

DoInG shana as CALUMET AVIATION ComPany, j

Petitioners,

| v. |

NDIANA ToLL Roap Commission, Respondent.

' On Writ of Certiorari to the Supreme Court of Indiana

‘“\

_

EG OF THE AIR TRANSPORT ASSOCIATION FOR

_ LEAVE TO FILE A BRIEF AS AMICUS CURIAE

\

\

- The Air Transport Association of America (‘‘the

Association”)\ pursuant to Rule 42' moves this

Honorable Court to grant it leave'to file a brief, as

amicus curiae, in support of Petitioners in the above

entitled matter.. ' '

INTEREST OF THE AIR TRANSPORT ASSOCIATION

The Air Transport Association is an unincorporated

trade association made up of 43 air carrier members

all authorized and required to provide air transporta-

tion pursuant to certificates of public convenience and

| Revised Rules of the Supreme Court of the United . States,

Adopted April 12, 1954, Effective July 1, 1954.

st one i pees —— y) bs

necessity issued by the Civil.Aeronautics Board in

accordance, with section 401 of the. Federal Aviation

Act. 76 Stat. 143, 49 U.S.C. sec. 1371. One or more

of our carrier members provides scheduled air trans-

- portation in every state of the union. Nine of them

provide transportation of persons, property and mail

into and out: of cities within the State of Indiana.

_ Official Airline Guide, City Index (September 1964).

‘The Articles of Association under which we operate

have been’ approved by the ‘Civil Aeronautics Board

as consistent with the public interest. CAB, Order .

No. E-14996 (March 10, 1960). Among the objects

- and purposes. of the Association is promotion of

aviation safety and, to that end, participation in

. proceedings before governmental agencies and courts.

One of the Association’s principal activities in

_ behalf of its carrier members is working with those -

local, state and Federal agencies responsible for

developing a system of airports capable of meeting

the growing needs of the nation. In this endeavor our

chief emphasis is upon the development of airports

_ that can be used safely and efficiéntly by our carrier

members and the traveling public and which permit

persons living or working in the vicinity of airports

to do so in safety and with peace of mind.

" REASONS FOR FILING A BRIEF AS AMICUS CURIAE

Zoning for the -purpose ‘of preventing hazardous

obstructions from being erected in airport approach

zones and pr ohibiting land use for purposes incom-

' patible with safe aerial navigation is essential’ if the

above stated objectives are to be realized. It requires

full cooperation between the states,,in whom the police .

power: resides, and the Federal ‘Government upon

whom ultimate responsibility for encouragement and

development of a safe air transport system devolves.

. By nullifying in toto a zoning regulation of Gary,

Indiana, clearly authorized by an enabling statute of

that state and based on a model devised by the Federal

Aviation Agency, the decision of -the Supreme Court:

of Indiana: -being reviewed, has virtually removed

_ Indiana from this partnership. Furthermore, it has

cast significant doubt upon the future of zoning in

Indiana. If this: decision as written. acquires the —

imprimatur of this Court efforts to zone around air-

ports in other states may also be paralyzed. Such a .

disposition of the question by this Court, therefore,

could have a serious and far-reaching impact upon

the development and utility of airports across the

‘nation. In some cases it might even result in impair-

ing the’ service our carrier members are required to

provide under the Federal Aviation Act. |

’ Notwithstanding: such a possibility, the question

' before this Court could be argued narrowly by Peti-

tioners and Respondent, whose’ primary emphasis will

be on their individual plights. Their dispute sounds

in tort for monetary damages and their chief interests,

understandably, are in the ultimate outcome of that

dispute. “The parties doubtlessly will address them-

selves to the constitutionality of zoning around air-

ports. But there is no reason for believing that their

interest or involvement in airport zoning the nation

over will be as sustained as ours, which will survive

this litigation regardless of its outcome.

We take no position in the narrow dispute between

Petitioners and Respondent. We do assert that the

decision. of the Indiana Court -was ‘erroneous as a

matter of law and that it porténds much mischief. If

permitted to file a brief as amicus curiae, we shall, of

course, discuss the judicial decisions which, we submit,

preclude a priori annihilation of zoning regulations,

But we shall stress also the experience of aeronautical

om

>

4

> nas, |

users of airspace ° ‘y terminal areas (approach zones)

_ to emphasize how airport zoning bears a ‘‘substantial

relation to the public health, safety, morals or general

welfare.” See Euclid v. Ambler Rélty Co., 272 U:S.

365, 97 (1926). It is respectfully submitted that our

background and experience equips us better to supply

this emphagis, and thus to aid this Court, than does

that of the parties to the litigation.

CONCLUSION

In view of the nation-wide interest of the Associa-

tion and its carrier members in the development of

safe. and efficient airports, appropriately zoned, and

the first-hand experience of its members in using

navigable airspace, including airport. approaches, it -

is submitted that we can be of assistance in the

exploration and resolution of the question here pre-

-sented. The Air Transport Association, therefore, .

earnestly hopes that this Honorable Court will afford:

it the opportunity to be of service in this matter which |

is so vital to the nation’s air transport ‘system by

granting it leave to file a brief as omteus curiae.

Respectfully submitied,

Joun E. STEPHEN,

GrorGE S. LaPHAM, JR.

Air Transport Association

of America

Suite 900.

1000 Connecticut Avenue, N.W.

'. Washington 6, D. C.

Attorneys for

Aw Transport Association

Ma,

SUBJECT INDEX.

; . Page

I. InTEREsT oF THE AMICUS CURIAE ...........0000- 1

II]. ARGUMENT ........ Att RNR Ree EERE a 5

A. The Indiana Court? S Decision Was Wiig’ as

a Matter of Law and is in No Sense Required

or Sanctioned By Prior Decisions of This

TUS ea MEV sic eN eed bees rons ésetesses 5

B. Zoning in the Vicinity of Airports Is Essen-

tial if the Nation’s Policy of Encouraging the

Development of Airports Safe Both for Aero-

nautical Users and for Airport Neighbors is

en cece beeud veces 19

ee a cahv ce eecvees ehavsebeese’ess * 27

ff _.

IV: SumMMARY OF ARGUMENT ...........0eceeeeeeees 28

2

AUTHORITIES CITED ©

CasEs:

All American Airways v. Village of Cedarhurst, 106 F.

"Supp. 521 (U.S.D.C., E.D., N.Y., 1952); aff’d. 201

ee TS 14, 16, 17

Atkinson v. Piper et ‘al., 181 Wise. 519, 195 N.W. 544

LR Re Ne en ‘17

Aurora v. Burns, 319 Til. 84, 93, 94; 149 N.E. 784 vehane 9g

Berman v. Parker, 348 1.S. 26 (1954) PEEP REY PETE 6

Eucla v. Ambler Realty Co. may JS. 365 (1996) | od» 0, 6 Z

8, 9, 10, 11, 12,13,

. 14, 15, 16, 27, 29,31

a Goldblait v. Town of Hempstead 369 U.S. 590 (1962)

15, 16, 29

Greenleaf-J ohnson. Lumber Co. v. Garrison, 237 US.

ER EE eer eer eee 16, 27, 31

Griggs: v. Allegheny County, 369 U. S. 84 (1962) ...3, 11, 13,

14, 15, 29, 31

=t>-

‘

ii } Authorities Cited Continued

. ; Page

Hadacheck v. Sebastian, 239 U.S. 394 (1915) .......5, 8,17

Harrell’s Candy Kitchen v. Sarasota-Manatee Airport ~

_ Authority, 111 So. 2d 489 (1959) ............ 18, 19, 29

Hesse v. Roth, 249 N.Y. 436; 164 N.E. 342 (1928) ..... 27

Indiana Toll Road Commission v. Jankovich, 193 N.E.

me RE eee. Cer rr err 12, 13, 17

Lawton v. Steele, 152 U. S. oe Serre 5

Lewis v. District of Columbia, 89 U.S. App. D.C. 72, 190

Pe ey Ci BED x ceccuscveesvesenscess 6

Mugler v. State of Kansas, 123 US. 623, 661 (1887) .. 11

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

_ + 38,11, 12,18

Schenck v. U.S., 249 U.S. 47 (1919) .........0000 00 5

State ex rel. Civello v. New Orleans, 154 La. 282,.83,97._*

OY a ee errr rr 9

United States v. 48.10 Acres of Land, 144 F. Supp. 258

(S.D.N.Y., 1956) ..... pS er rs aa ee 14

United States v. 4.43 Acres of Land, 137 F. Supp. 567

Es ie vo up unveil 600) erecaereckere 14

U.S. v. Causby, 328 U.S. 256 (1946) Semana 3, 11, 21, 29, 31

U.S. v. Perma Paving Co., 332 F. 2d 754 (2d Cir.,

SE hve ducesesde Cas eneen cavees ces vdnvetess 16, 27

Watson v. Buck, 313 U.S. 406 (1941) .............0.. 10

N.J.L. 370, 40 A. 2d 559-61 (1945) .............. 2

Yara Engineering Corporation v. City of Newark, 132°

STATUTES: _

2 Burns, Ind. Stats. Anno. .

RES PAPEETE ccccceseceyevees Rivas wageaers 11

5 Burns, Ind. Stats. ‘

secs. 14.327, 14.341, 1963 Es ML dccacenscés 3

i ic cae Co eesencins eeeedan ee cene t's ‘3

Federal Airport Act, as amended, 60 Stat. 170; 78 Stat.

PD oc cane eeseenenebens sees 4

Federal Aviation Act, 72 Stat. 737, as amended by 75

Stat. 467, 76 Stat. 143, 49 U.S.C. sec, 1301 .,...... 1,4

Pub. L. 88-280, 88th Cong., 2d Sess., sec. 10 (March 11,

DETR oi babies Gods davewed tien devans 3, 20, 31, 22

Pub. L. 88-507, 88th Cong., 2d Sess. (August 30, 1964),

ete hha bib chavs knee se se bav er seauennees

76 shat. 5G, UBL. G06. TBIE oc ccccvcccvccceseceres 1.

Authorities Cited Continued =i

Page

CoNnGRESSIONAL REpoRTS AND HeEaRINGs: aie ;

H.R. Rep. No. 784, 78th Cong., Ist Sess. 11 (1943) ....° 20 |

H.R. Rep. No. 1002, 88th Cong., Ist Sesa 16, 17

_: eee Hi Ras ER Ea 20, 24

S. Rep. No, 446, 88th Cong., Ist Sess. 7 (1963) . . .»20, 22, 23

S. Rep. No. 1153, 88th Cong., Ist Sess. (1963) ....:..21, 23

Hearings Before the Aviation Subcommittee of the

Committee on Commerce of the Senate, 88th Cong., °-

Ist Sess. (1963)

ee SE oe duke oon0s RORE Seed cee eee beN 23, 26

Se EE vis Cbsuekeébber Ses céevensseeeo ned 24

Crvin AERONAUTICS Boarp MATERIALS:

Accidents, Fatalities Within the Vicinity of the Air-

port, Civil Aeronautics Board Bureau of Safety,

» BE Ty TD ev ccccnccess Sescuivaeubbeene OX 24 .

,CAB, Bureau of Safety Statistical Review, General

Aviation, | :

‘Calendar Year 1959, pp. 13, 19, 27 ............. 24

Calendar Year 1960, pp. 13, 19,.27 .........0065 24

Calendar Year 1961, pp. 13, 19, 27 ............. 24

CAB, Order No, E-14996 (March 10, 1960) ........... ¥

FreperaL Aviation AGENCY MATERIALS:

FAA, Air Traffic Activity 39 (Calendar year'1963) ... 20

National Airport Plan, Requirements for Fiscal Nears

1963-67, 1963 re FAA Ex. No. 1, p. 75

¢(March 1963) ..... oe eee eereuteiveunebeos 21

-FAA-NIMLO Model Ordinance (TSO-N-18) ......... 4

MISCELLANEOUS:

8 A.L.R. 2d 1964 ..........0 000s. siden tess eee oY

Oe Ne ea ido cawawidane wien . 4

96 A.L.R. 778 (1935) ........ ee Fae rx avast Bact te 6

iv _ Authorities Cited Continued

an a Hye Pogp

11 Am. Jur., Const. Law, secs. 152, 267-77 .....:+..... 5, 10

58 Am. Jur., Zoning, sec. 22 ......... sennah ston needs 4)

Annex 10 to the Convention on International Civil |

- Aviation 11, 12 (November 1,:1963) ..... Seiden i

Bettman, Constitutionality of Z ontng, 37 Harv. L. Rev.

834 (1924) rege ue Geb wk de ca ea aes eae es 6

8 MeQuillin, Municipal Corporations (3rd ed. Rev. is

Se SEOs ino res cede kk onaned épkrnches 7,19 .

secs.'25.25 ...... Se rar eee bate oi nets sas ac ae

sees. 25.29-25. BREE Peas (cone pen eam siete 6

3 Metsenbaum, Law.of Zoning (2d ed. ee. eee 8

Official Airline Guide, City Index (September 1964) . :

Ordinance No. 2897, City of Gary, Lake County, In-

‘ diana, September, Pa ce geese wane cnneieuers 10,18

Petition for Certiorari, p. 8 ..:........ eCauaeastas. 4

Port of New York Authority qoenees for Calendar

WOE Ties OR. TB ONG TD oc osc ve venssnvetsscees 20

Report of the President’s Airport Commission, The

Airport and Its Netghbors, May 16, 1952 eh ae oe

Rhyne, Muni ipal Law (1957) cae.

OLE hed sensu eesens euecasne chen sees: 7,19

“SG | Tee Rpeenaragae oe eccecegee Nica atenhiac aah 6

sec. 32-56 SOE eee eee SE REEEE ED CSS oe Eee 6

Rhyne, The Legal Experience of Airports, 11 Journal

of Air Law and Commerce 297, 314 (1940) ...... 7

State Flood-Plain aning, DePaul L. Rev., Summer

aes Pere err ree ere ere 3

Tnited States Manual, Criteria For Standard Instru-

ment — Procedures 25, 27 (September 1,

IN THE

| Supreme Court of the United States

OCTOBER TERM, 1964

No. 60

Nick JankovicH and Pau JANKovICcH, Co-PaRTNERS,

DornG Business AS CALUMET AVIATION COMPANY,

Petitioners,

Vv. * «8

- Inprana Toit Roap Commission, Respondent.

On Writ of Certiorari to the Supreme Court of Indiazta

BRIEF OF THE AIR TRANSPORT ASSOCIATION

AS AMICUS stalaeee

I. INTEREST OF THE AMICUS CURIAE

The Air Transport Association of . America is an

unincorporated trade association made up of 43 air

carrier members all authorized and required to provide

air transportation pursuant. to certificates of public.

convenience and necessity issued by the Civil Aero-

nauties Board in accordance with section 401 of ‘the

_. Federal Aviation Act. 76 Stat. 143, 49 U.S.C. sec. 1371.

One or more of our carrier members provides

scheduled air transportation. in every state of the

union. Nine of them provide transportation of

persons, property and mail into and out of cities

within the State of Indiana. Official Airline Guide,

City Index (September 1964).

.

2

The Articles of Association under which we operate |

. have been approved by the Civil Aeronautics Board

(‘“‘CAB’’) as consistent with the public interest.

CAB, Order No. E-14996 (March 10, 1960). Among

the objects and purposes of the Association is promo-

tion of aviation safety and, to that end, participation

in proceedings before governmental agencies and

courts. Except for a single helicopter operator, none

of our carrier members currently provide air trans-

- portation through the Gary, Indiana Airport.’ How-

ever, sinte zoning in the vicinity of airports to promote’

safety is of deep concern to all of our carriers and

since the instant case brings the question of airport

zoning before this Court for the first time and its out-.

come may well affect airports served by our members

elsewhere in Indiana, and possibly in other states, it

is of immediate interest to us.

AS amicus. curiae, we are asking this Court to

reverse, limit or clarify, as it sees fit, decision of -

the. Supreme Court of ‘the State of Indiana holding

that an ordinance of Gary, adopted in accordance with"

ari appropriate enabling statute of the Indiana Legis-

lature,’ is void in its entirety because it amounts to a

‘‘taking’’ of Respondent’s property which is forbidden

-by the Federal Constitution and the Constitution of

the State of Indiana. Im the final analysis that

decision seeks justification for its sweeping proscrip-

1 Although in another connection the Indiana Court refers to

Yara Engimeertng Corp. v. City of. Newark, 132 N.J.L. 370, 40

A2d 559-61 (1945) where it was noted that there was nothing in

New Jersey’s ‘‘enabling statute which authorized. the enactment

of an ordinance: for the zoning of land solely for the use of an’

airport’’, it was nowhere held that the Gary Ordinance was not -

sanctioned by the Indiana » Enabling Statute. See 5 Burns Ind.

Stat. 14-422.

3

tion in decisions of this Court, including United States

v. Causby, 328 U.S. 256-(1946), and Griggs v. Allegheny

County, 369 U.S. 84 (1962)¢ We think it completely

misconceives the message and spirit of both of these

cases and reveals some confusion regarding the

limitations on police power recognized by this Court .

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

and Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

(1922). If the decision stands as written and is read

as invalidating the Gary Ordinance in its entirety it

could nullify future efforts to zone in the vicinity of

. airports all over Indiania and Possibly jeopardize

_ the state’s Tall: Structures Act? i

Moreover, especially if the decision becomes con-

_tagious across state lines, or appears to be blessed by

this Court, it cowid do much mischief to the vital

national objective of developing an ever. improving

air transport system—and it could frustrate the wish -

of Congress, expressed this year, in an amendment to

the Federal Airport Act, to impress upon local com-

munities and states that it is essential for them to make

every” reasonable effort to implement appropriate

zoning in furtherance of safety and local tranquility.’

?The Tall Structures -Act regulates the location and height of -

structures and the use of land related thereto in localities within

the state not covered by zoning regulations. 5 Burns Ind. Stat.

be 27-14.341, 1963 Cum. Supp.

In March of this year Congress added to the Federal Airport

pi a requirement that the Administrator of the Federal Aviation

Agency, as a condition precedent to approving a project as eligible

for Federal assistance under the Act, obtain a written assurance

from the recipient commtinity that, to the extent reasonable, zoning

laws restricting land use in the vicinity of the airport will be

adopted. Pub. L. 88-280, 88th Cong., 2d Sess. sec. 10 (March 11,

- 1964). This amendment, which is explored in some detail at

pp. 21-24, infra, confirmed the Administrator’s long - standing

practice of insisting upon such a commitment from. Airport

4

Encouragement and development of a nation-wide air

transport system is embodied in two Congressional

acts, the Federal Aviation Act and the Federal Aitport

Act. Enecouragement:and development of such a-

system calls for Federal and state partnership. The

Federal commitment is immense and the Federal

undertaking has been aided and supplemented at the .

local level by use of the police power, historically

said to reside in the several states. In addition to the

bedevilments noted, the decision below, if it is upheld

without qualification, could. remove Indiana from this

partnership.

We are intérested only in having this Court make

certain that the action taken below (invalidation of

the Gary Ordinance in its entirety) is not read as

indicating that a state’s police power cannot be used

to zone in the vicinity of airports. We take no posi-

tion as to whether that ordinance may be considered

_a ‘‘taking’’ or otherwise void, as to the Respondent’s

identifiable real estate if, indeed, it is applicable at

all against the Toli Road Commission.” —

‘sponsors. To aid sponsors in formulating Yoning regulations the

Administrater in conjunction with the National Institute of Mu-~

nicipal Law Officers (‘‘NIMLO’’) adopted a model ordinance

(effective in February, 1946) based on Technical Standard Order

N-18, the technical document used by the Administrator to deter-

mine obstructions around airports.

4 Federal Aviation Act, 72 Stat. 737, as amended by 75 Stat. 467,

76 Stat. 143, 49 U.S.C. see. 1301. |

Federal Airport Act, 60° Stat. 170, 78° Stat. 158, 49 U.S.C.

sec. 1101.

5 We do not know: aii or not the Indiana Toll Road Com-

mission is possessed of such ,~vernmental character as to put it

- beyond the Ordinance. The tril court in Indiana is said to have ~

rejected the supervening act contention. Petition For Certiorari,

p. 8. (Cf. R. 12 and R. 13.) The- Annotation on the subject in

61 A.L.R. 2d 970-78 raises a question.

5

Pe IL. ARGUMENT

A. The Indiana Court's Decision Was Wrong as a Matter of.

Law and is in No Sense Required or Sanctioned By Prior

Decisions of This Court. \

As we have already noted, this deaiolens, if upheld,

_. Will represent a setback in the use of a state’s police

power to zone around airports even when it is done to

fulfill a. compact with the Federal Government found

*eby Congress and the Legislature of that state to be

for the public good. Traditionally police power has

been exercised to’ require or forbid certain actions by

individuals or groups of ‘individuals when the over-

all good of the community, and with it the good of the

individuals affected,.would be served: To be valid, —

_ such enactments must be reasonably related to the

public héalth, general welfare, safety or morals of the

community. Not all exercises of police’ power have

been upheld. But it has been used validly for many

purposes, even to put conditions on freedom of speech .

and assembly.’

Statutes and regulations also have placed restric-.

tions on the use of ._property as well as on personal

freedom. Zoning ordinances come ‘under this head-

ing. Subject, of course, to the aforesaid threshold

requirement, to factual determinations in individual —

cases (e.g., consideration of the general character of

the area and neighborhood affected) and to a weigh-

‘ing of public gain against individual hardship, zoning

has emerged as a means of keeping liquor stores away

6 Lawton v. Steele, 152 US. 133 (1894) ; Euclid v. Ambler Realty

Co., 272 U.S. 365 (1926) ; Hadacheck v. Sebastian, 289 US. 394.

(1915) ; 11 Am. Jur., -Const. Law, secs. 267-77.

7 Schenck v. U.S., 249 U.S. 47 (1919) ; 58 Am. Jur., Zoning, sec.

22; 8 A.L.R. 2a 1964. ;

6 ie

from churches and schools,* preventing industrial -

plants from destroying residential communities’ and

restricting the heights of buil? .*s and other struc-

tures that blot out sunlight -u congest city side-

‘walks. Zoning has. been used too for purposes other

than heading off portentous evils. In some instances

economic and aesthetic benefits have been bestowed

upon communities by adoption of appropriate zoning

regulations.” ;

Zoriing laws are of relatively modern origin as this

‘Court noted in Euclid v. Ambler Realty Co., 272 US.

365. (1926). In 1926 this Court was able to catalogue

_ a number of regulations which it said probably would

"oie sical Law, secs. 32- 52 cupid 96 A.L.R. 778

(1935), ;

®Td., secs. 32-56.

10 Euclid v. Ambler, supra.

11 Lewis v. District of Columbia, 89 U.S. App. D.C. 72, 190 F. 2d

25 (D.C. Cir., 1951); 8 MeQuillin, Municipal Corporations, secs.

25.29-25.31 (3rd ed., Rev.). ‘This Court has recognized aesthetics |

as among those values to be preserved -in the interest of general

welfare. In Berman v: Parker, 348 U.S. 26 (1954), the exercise

of the power of eminent domain by a District of Columbia land

agency was upheld where the objectives of the land agency were

to keep the community beautiful. This Court said: j

‘‘TheSeoncept of the public welfare is broad and Sidhiiiee

See Day-Brite Lighting, Ine. v. Missouri, 342 US 421, 424, 96.

L ed 469, 472, 72 S Ct 405. The values it represents are.

spiritual as well as piysical, aesthetic as well as monetary.

It is within'the power of the legislature to determine that the

community should be -beautiful as well as healthy, spacious

as. well as clean, well-balanced as well as carefully patrolled. =

348 U.S. at. 33.

For an informative discussion of some of the indirect. benefits

to the general public that can be achieved through zoning, see.

_ Bette, Constitutionality Of Zoning, 37 Harv. L. Rev. 834 er

| 7

_ ,have been. rejected as arbitrary and oppressive a

century before but which, in the light of conditions

existing at the time of that decision, seemed both wige

and necessary and were uniformly sustained. -Id. at

386, 87.

Even when its relatively modern origin is considered, _

much zoning took place before airports were heard

of or during the days of their primitive development.

So, in the beginning, zoning was not associated with

airports and airports were not associated with zoning.

But as aviation began to develop and airports began | |

growing across. the nation, it was quite natural for

_ local authorities, encouraged by. the Fedeyal Govern-

ment, to consider zoning in the vicinity of airports.”

Height- zoning around airports is but an extension of

height zoning elsewhere. It is not a type of zoning

different in kind from all others. In effect, it does

no more than limit heights in ‘‘airport districts’’ for .

the benefit of the community as a whole, including

individual property holders who give up some rights ~

to benefit the community, of which they are a part.* |

Height limitations and land use restrictions have long

been recognized in ‘‘business districts’’, ‘‘residential

districts’? and ‘‘industrial districts’? and have made

the same demands upon property situated therein as

height limitations make upon property situated around

airports. |

12 Alameda County, California was the first to do so in 1928.

The need for such zoning was recognized by the Federal Govern-.

- ment (Civil Aeronautics Administration and predécessor) in 1930

and again in 1938. Rhyne, Municipq] Law, sec, 22-22 (1957).

_ Rhyne, The Legal Experience of Airports, 11 Journal of Air

Law and Commerce 297, 314 (1940) ; 8 MeQuillin, Municipal Cor-

porations (3rd ed. Rev.) secs. 25.110-25.118.

8 ’

Of course, limitations on the uses to which property

may be put in any of these areas are expressed in terms

relevant to the activities expected to be conducted

within the respective areas. Since airport activities

consist of aircraft landings and take-offs, it follows

that height limitations and restrictions on communica-

tion propagations that would distort radio navigation,

are important examples of the kinds of uses to which

property situated near airports should not be put if

public safety is to be considered. On their face

ordinances imposing such limitations, restricting the

use which an individual may make of his property. in

the proximity of an airport, are reasonably related

to the safety and welfare of the community. The

denial to an individual of absolute freedom td use his*

_ prdéperty as he sees fit, therefore, does not seem too

- harsh. Cf.’ Hadacheck v. Sebastian, 239 U.S. 394

(1915). And, if any distinction is to be made among

the grounds on which the exertise of police power is

_ justified, surely an ordinance based upon considera-

tions of safety (the preservation of life as well. as

property) must be accorded the highest standing.

- In Euclid vy. Ambler, supra, this Court. was asked. to

strike down im its entirety a comprehensive zoning

ordinance adopted by the Village of Euclid, Ohio.

That ordinance, among other things, limited the height

of buildings withiu specified zones and excluded apart-

ment houses, business houses, retail stores, shops and

other like establishments from residential districts.“

In its disposition of the case, this Court observed that -

decisions in the states were numerous and conflicting,

some holding that such restrictions bear a rational

relationship to the.health and safety of the community,

4 See 3 Metzenbaum, Law of Zoning, (24 ed.), p. 1989,

9

some holding that thev do not. Citing with approval

Aurora v. Burns, 319 Ill. 84, 93, 95, 149 N.E. 784, and

State ex rel. Civello v. New Orleans, 154 La. 282, 83,

97 So. 440, both in the ‘first group, this Court noted

such things as economy in the matter of paving streets,

expediting local transportation, heading off inter-

ference with the circulation of air and sun rays and

avoiding disturbing noises from automobiles as

objectives that could not be put outside the. valid

exercise of police power. Speaking through - Mr.

Justice Sutherland, this Court said:

“Tf these reasons, thus summarised, do not .

demonstrate the wisdom or sound policy in all ©

respects of those restrictions which we have

indicated as pertinent to the inquiry, at least, the

reasons are sufficiently cogent to preclude us”

from saying, as it mustQg said before the ordinance

can be declared unconstitutional, that such pro-—

visions are clearly arbitrary and unreasonable,

having no substantial relation to the .public health,

safety, morals, or general welfare. Thomas

' Cusack Co. v. ‘Chicag: 0, 242 U.S., pp. 530, 531,

61 L. ed. 475, 476, LRA. 1918A, 136, 37 Sup. Ct.

Rep. 190, Ann. Cas. 1917C, 594; “Jacobson v.

Massachusetts, 197 U.S. 11, 30, 31, "49 L. ed. 643,

651, 652, 25 Sup. Ct. Rep. 358, 3 Ann. Cas. 765.

' “Tt is true that when, if ever, the provisions

set forth in the ordinance in tedious and minute

detail, come to be concretely applied to particular

' premises including those of the appeilee,. or to

particular conditions; or to be considered in con-

nection with specific complaints, some. of them, or.

even many of them, may be found to be clearly

arbitrary and unreasonable.

* * * * *

“In the reélm of constitutional law, especially,

this Court has perceived the embarrassment

10

which is likely to result from an attempt to

formulate rules or decide questions beyond the

necessities .of the immediate issue. It has pré-

ferred to follow the method of 4 gradual approach

to the general by a systematically guarded appli-

cation to extension of constitutional principles

to particular cases as they arise; rather than by

out of hand attempts to, establish general rules

to which future cases must be fitted. This

process applies with peculiar force to the solution

of questions arising under the due process clause

of the Constitution as appled to the exercise of

the flexible powers of police, with which we are

here concerned.’’ 272 U.S. at 397. (Emphasis

supplied. )

Contrary to these clear instructions, the Indiana.

Court nowhere spelled out wherein it felt the Gary

Ordinance failed to bear a rational relationship to the

general welfare, health, safety and morals of the

[people of Gary. As a strict matter it did not even ~

. sound the incantation. Instead, and despite its own

reference to Euclid, which points exactly the other

way, it nullified the entire ordinance.”

15 No treatment was given to the severability clause of the ordi-

nance. Section 12 of the Gary Ordinance says:

“If any of the provisiong of the ordinance or the application

thereof to any person or 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 application, and to this end the provisions of this

Ordinance are-declared to be severable.’’ “R. 157.

‘ It is fundamental that a statute may be constitutional in one part .

and unconstitutional in another part, especially when a severability

‘clause is ineluded in it, subject only to the natural corollary that

it may sometimes be impossible to separate the parts. Cases sup-

porting this principle are almost too numerous to cite. They are

collected in 11 Am. Jur., Const. Law, sec, 152. Watson v. Buck,

313 U.S. 406 (1941) holds that a Federal Court cannot invalidate

a state statute nay a-sev erability clause...

11

"D

>

The Indiana Court cites Euclid v. Ambler, supra, in

conjunction with Mugler v. State of Kansas, 123 U.S.

623, 661 (1887), presumably to support Respondent’s

right to question the constitutionality of the ordinance

without first seeking a variance, and to justify its

own action in going beyond the stated purpose of the

ordinance to look at its substance. We are rot

questioning the court’s consideration of the constitu-.

‘ tional argument or its refusal to be ‘‘bound by mere .

form.’’ We are cencerned, however, with the out-

come—with the apparent inclination to apply different

standards in deciding the validity of zoning regula-

tions in the vicinity of airports than this court has ©

applied in other zoning cases; e.g., in Euclid. The

Gary Ordinance was not said to.be unrelated to

general welfare and safety. It was not held to be a.

‘‘taking’’.as applied to Respondent’s property (for

which compensation should be paid or, perhaps,

against which the applicable section is inoperative) but:

otherwise a valid exercise of police power. It was

simply eliminated.

The decision is unclear as to the rationale and

authority on which the case was decided. The court

‘seems to.say that the ordinance per se did the ‘‘taking”’,

as the statute in Pennsylvania Coal Co..v. Mahon,.

supra, was said to do. On the other hand, in the

opinion there’ is much discussion of Causby and

Griggs both of which held that a ‘‘taking’’ occurred

as a result of frequent flights of aircraft over specific ”

real estate at very low altitudes. . And, in rejecting

Petitioners’ argument that the Toll Road Commission

should have protected ‘itself by inverse condemnation

proceedings under the Eminent Domain Statute,”* the

169 Burns, Indiana Statutes Annotated, secs. 3:1706—3.1711.

42

court said that the ‘‘taking’’ must be an accomplished

fact to permit such an action and that it could not be

an accomplished fact since ‘‘actual encroachmcut”’

was impossible because the power lines adjacent to

the toll mpad ‘‘are much higher than the toll road.”

R. 216, 17.

In Pennsylvania Coal Co. v. Mahon, supra, this

Court held that a statute of that state, admittedly

destroying contract rights, and denying a mining com-

pany all rights to mine the coal that it had reserved

by contract, for the benefit of ‘‘a single private house’’

located on the surface, was such 2 diminution of pre- —

viously existing rights that iv .ad reached the

_ magnitude where ‘‘there must be an exercise of eminent

domain and compensation to sustain the act.”’ . This

decision, rendered four years before the decision in

‘Euclid, itself stresses that the question of ‘‘taking”’ ©

- turns upon particular facts. Actuaily it helped pave

the way for Euclid by noting that some values are

- enjoyed under an implied tanitetion. Mr. Justice

Holmes wrote:

“Government hardly could go on if, to | some

extent, values incident to property could not. be

diminished without paying for every such change

in the general law. As long recognized, some

values ‘are enjoyed under an implied kkmitation, |

and must yield to the police power. But obviously

the implied limitation must have its limits or the

contract.and due’ process clauses are gone. One

fact for consideration in determining such limits

is the extent of the diminuticn. When it reaches

a certain magnitude, in most if not in all cases

there must be an exercise of eminent domain and

compensation to sustain the act. ‘So the -question

depends upon the particular facts.’’ 260 W.S. at

413. (Emphasis supplied. ):

13

If the Huclid decision had not instructed that zoning

regulations ‘‘be concretely applied to. particular

premises” the Pennsylvania Coal case; upon which

the Indiana Court. relies, seems to have suggested it.

And, of course, Euclid did chart the course that this

Court wanted followed in zoning cases.

“Rather than follow that course by limiting its in-

validation of the Gary Ordinance to those provisions

which, when ‘‘concretely applied’? to Respondent’s

property, seem ‘‘arbitrary and unreasonable’’, the

court below sought to distinguish between what it

called ‘regulation under the police power which can

be modified at. the discretion of the regulating

- authority”? and-‘‘taking or appropriating ‘of private

property by the government for a specific public use.’

~R. 214. There is no elucidation of the court’s con-

clusion ‘that the Gary Ordinance falls in the latter

_eategory. The court does not say why the availability

‘of a waiver does not operate to permit modifications

‘if cix¢umstances so dictate, at least insofar as specific

_pFoperty owners are concerned. 7 It merely states

that ‘‘the taking or appropriating of private property.

_ by the government for a specific public use’’ can be

effected only if, compensation is providéd. Pennsyl-

-vania Coal and Griggs are cited as authority for the .

conclusion. There is nothing in Pennsylvania Coal to

- support the thesis that the City of Gary would have to

condemn and pay for all land extending srx miles out.

4

hs

ers .%

17 This aspect. of the ordinance was treated summarily in the

decision below. The court’s anxiousness to reach ‘the constitutional

issue may well have denied an administrative remedy to Respond-

ent. If, as the court observed, the adjacent power lines shielded

the toll road,'a waiver almost surely would have been granted.

al

14

before it could adept the ordinance.” And, as indicated ©

above, Griggs held only. that ‘‘regular and almost

continuous daily flights’, passing’ within 30 feet of

- the’ landowner’s. residence on take-off and within 53

——

F. Supp. 258 (S.D.N.Y., 1956), and United States v. 4.43 Acres of

‘Land, 137 F. Supp. 567 (N.D. Tex., 1956) as evincing recognition

sf by the Federal government that easements for the glide angle

74

heeded for landing and takeoff must be acquiréd by condemnation

proceedings and payment of just compensation. ‘To be sure there

are times when the government regards ‘it essential to acquire air

easements gud uc one can doubt that a condemnation proceeding

——- and just compensation are: necessary to acquire ‘those easements.

But it can not follow, without doing violence to the rationale of

Causby, that easements must be acquired-to. permit all landings

and takeoffs. In All American Airways v. Village of Cedarhurst, .

.106 F. Supp. s21 (U.S.D.C,, E.D., N.Y., 1952), aff’d. 201 F. 2d

273 (2d Cir., 1953) it- was contended that authorization in the

' Federal Prec Fas Act for the Administrator to acquire ‘‘easements

through or other interests in immediately adjacent’’ airspace

meant just that. J udge Rayfiel rejected the contention saying :

-“T do not bellows that Congress intended that the ‘ Admin-

istrator’ should be required té condemn or otherwise acquire

the airspace adjacent. to every plot of land over which planes

under its supervision and control would be obliged to fly in

landing at or leaving an airport. ‘Even if that were the

intent of Congress the. remedy of an affected property owner

is by an action for damages in the Court of Claims, as was

done in the Causby case, supra.’’ 106 F. Supp. at 523.

If. it were otherwise airports-would become tM size of the most:

extended glide slope needed for each runway and, in some cases,

would reach upward well in excess of a thousand feet. In the

_case of those airports having Instrument, Landing Systems (‘‘ILS’’) .

“this would mean condemning approximately four or five miles for

each ILS runway. For example, an outer marker five miles out

with a 214° glide slope will describe a triangle whose height is

1330 feet. Annex 10 to the Convention on International Civil

Aviation, 11, 12 (November 1, 1963) and United States Manual,

Criteria For Standard Instrument Approach Procedures, 25, 27

- (September 1, 1956). This is not the direction of Causby and

' Griggs. | Pe e. -

>-

*~

,

,

*1* The opinion cites: United States v. 48.10 Acres of Land, 144 >.

15

feet cf it when landing, made the property unusable

as a residence and so amounted to a “taking” for

which the Greater Pittsburgh Airport had to pay.

Following the landmark decision .in Causby, the ©

Griggs case recognized ownership of as much ‘space

«above the ground as a landowner can put to reasonable - -

use. It was reasonable use as a residence that was.

‘‘taken’’ from landowner Griggs. We have already

suggested, that it may well be that the Gary Ordinance

purported to deprive the Toll Road Commission of

the reasonable use of its property for constructing an

_ expressway. We take no ‘position in that dispute.

Actually the ordinance did not prevent construction

of the freeway as the fr quent low flying airplanes

prevented landowners Causby and Griggs from using

their properties. But suppose it had done so and is

regarded by this Court as a ‘“‘taking.’”’ It would not

follow necessarily that all property within the several

established zones was ‘‘taken’’, or even reduced in value.

Py

This Court has recently made it very clear that an

otherwise valid ordinance is not rendered unconstitu-

‘ tional merely because it deprives the property of its

most beneficial use. Goldblatt v. Town of Hempstead, ,

369 U.S. 590 (1962). There it was said ofan ordinance

prohibiting excavations below 2 feet above maximum

ground water Jevel:

‘*Concededly the ordinance completely prohibits

a beneficial use to whicn the property has pre-

’ viously been devoted. However, such a character-

ization does not tell’ us whether or not the

ordinance is unconstitutional. It “is an oft-

repeated truism that every regulation necessarily

speaks as a prohibition. If this ordinance is

otherwise a valid exercise of the town’s police

powers, the fact that it deprives the property of .

?

16

its most beneficial use does not render it uncon-

stitutional. Walls v. Midland Carbon Co., 254

US 300, 65 L ed 276, 41 S Ct 118 (1920); Hada

check v. Sebastian, 939 US 394, 60 L ed 348, 36

S Ct 143, Ann Cas 1917B 927 (1915) ; ‘Reinman

v. Little Rock, 237 US 171, 59 L ed 900, 35 S Ct

511 ee “Mu gler v. Kansas, 123 US 623, 31

L ed 205, 8 8 Gt 273 (1887); see Laurel Hill

Cemetery. v. San Francisco, 216 US 358, 54 L ed

515, 30 S Ct 301 (1910).’’ 369 U.S. at 592, 93.

In a decision of earlier vintage this’ Court upheld

action by the Secretary of War which prevented a

riparian owner from using his property in the manner

he regarded most beneficial, z.e., for construction of

a wharf. The Secretary had determined that. it was ~

‘‘essential to the preservation and protection’’ of the

harbor involved that a new harbor line be established.

To do so required demolition of a‘ portion of an exist-

ing wharf for which no compensation. was paid. This .

Court held that the Secretary’s action had not reached

' the point that it could be regarded as ‘‘arbitrary or

wanton.’ Greenleaf-Johnson Lumber Co. v. Garrison; |

237 U.S. 251, 68 (1915). See also U. S. v. Perma’

Paring Co., 332 ¥F. 2d 754 (2d Cir., 1964).

So we are back to Euclid where we were told that

- various provisions of the ordinance must be ‘‘con-

eretely applied to particular premises’, found ‘‘clearly

arbitrary and unreasonable”’ and unrelated to ‘‘ public

‘ health, safety, morals and general welfare’’ before the

- ordinance can be declared unconstitutional and void.”

1° Our jurisprudence, of course, is one of judicial restraint when

it’ comes to overturning legislative acts on the basis of the Con-

_ stitution. A good modern day example of the reluctance of a

Federal Court to upset the exercise of police power is All American

%y

17

There is no single lesson to be learned from an

exhaustive analysis of state decisions on zoning. It.

is noteworthy, however, that some courts of last resort

in other states have reached opposite conclusions when

height zoning, which is essentially what is involved

here, was in issue. Illustrative dre decisions in

Wisconsin anid Florida, the former an eatlier decision

upholding height limitations imposed on buildings for

fire prevention purposes, the latter a recent one up-

holding height limitations in specified zones around

an airport to protect air navigation.

In Atkinson v. Piper, et-al., 181 Wisc. 519, 195 N.W.

444 (1923), a statute passed by the Wisconsin Legis-

iature, limiting the height of buildings in cities of one

class to 125 feet and those of another class to 100,feet

was held to be a valid exercise of the’state’s police

power.. Quoting from this Court’s opinion in H-ada--

check v. Sebastian, supra, the Wisconsin Court stressed

how imperative it is that police power, unless it is

‘Airways v. Village of Cedarhurst, 201 F. 2d 273 (2d Cir., 1953)

where the Second Circuit called for a trial and a complete record

before it would consider invalidating an ordinance prohibiting

flights over the village below specified altitudes, albeit in com-

sans with regulations of the Administrator. That Court said:

. On the other hand, we do not think we should take

ra position urged bythe plaintiffs, and substantial! ly followed.

by the district court, of declaring the ordinance clearly invalid

at this preliminary stage of the proceedings. Before a trial

we afe not in a position to find that those defendants who are

land owners cannot establish their claims of trespass and

nuisance ,..’’. 201 F. 2d at 276.

True the matter before the Supreme Court of Indiana was not

in the ‘‘preliminary stage of the proceedings.’’ On the otaer hand,

it does not appear fhat other’ remedies available to Hespondent,

remedies that would have permitted the ordinance to stand, were

adequately explored. For instance, note the rejection of inverse

condemnation. -_R. 216, 17.

18

arbitrarily exercised, be upheld even though it may

seem harsh on some individuals. - |

In Harrell’s Candy Kitehen v: Sarasota-Manatee

' Airport Authority, 111 So. 2d 439 (1959), a landowner |

wanted to add height to-a building in the vicinity of

the municipal airport. The new height would exceed

the 27.64 feet above level ground permitted by a

Florida statute at that location. Harrell’s: property

was situated to one side of the extended center line

of a principal runway in an approach area. Like

most real estate subject to the Gary Ordinange,” and

' other ordinances based on the FAA model, it did not

lie directly in the path of the runway. In other Words,

normally there would be no flights passing over this

- parcel of real estate. The Supreme Court of Florida

never seemed to doubi that this act of the legislature

was a valid exercise of police power. That court said:

°

» here is no longer any question concerning

. the power of the Legislature to authorize agencies

of the govermment to adopt and enforce zoning

regulations: We can think of no situation which

more clearly authorizes the exercise of this phase

of the police power than that involved here. Such

regulations not only promote the general welfare

of the state and community served but contribute

to the proper and orderly development of land

areas in the vicinity of airports. Such regula-

tions stabilize values and provide safety to those

who use the airport facilities in taking off and

a

20 The: ordinance establishes four zones. ‘only in, two. of them,

the Outer Area Approach Zone and the Inner Area Approach

Zone are there likely to be regular over-flights. And only in the

Inner Area Approach Zone, controlled by the 40 to 1 slope, are —

there likely to be over-flights very close to the ground. See ‘Ordi-

nance (R. 153, 54) and Gary ee Zoning. Map of. _— 12,

1949 (R. 158).

19

landing as well as those living in the vicinity. °

thereof. In many cases this Court has upheld

the exercise of the police power by counties and

municipalities in the enactment of zoning regula-

_ tions restricting height, number of stories, size

of- buildings and other structures, percentage of

lots that may be océupied, the’ size of courts: and

other spaces, the density of population and the

_ location of buildings and structures and land and

water for trade, industry and other purposes.

There has been much litigation in the field of

zoning, particularly tn. Florida, and the juris-

prudence in that field has been: extensively

developed. These well settled principles now so.

_ firmly ‘established with reference to municipal

and county zoning apply equally to -airport®

zoning.’’ “111 So. 2d 443. (Emphasis supplied.)

Cf. Rhyne, Municipal Law, sec. 22-22 (1957) ;

MceQuillin, Municipal Corporations, sec. -25.25.

B. Zoning in the Vicinity of Airports Is Essential if the-

Nation's Policy of Encouraging the Development of Air-

ports Safe Both for Aeronautical Users and for Airport

Neighbors is to Continue. , as :

A necessary concomitant to a system of airports

adequate to meet the nation’s air transportation needs

is freedom for local authorities, in partnership with the

Federal Government, .to adopt reasonable zoning

regulations designed equally to protect persons and

property moving by air and persons living, working

and congregating in ‘‘airport districts.’ Such

ordinances should not be overturned except.in the most

extreme cases. They should not be held invalid simply

because they work a hardship on some individuals.

In. all cases public gain must be weighed against —

individual loss.

If the Gary Ordinance is consigned to oblivion and

the airport forced to close, or hobble along with one

20

runway’s utility greatly reduced, there will. be little

or-no immediate impact upon the air transportation

provided by air carrier members of this amicus curiae.

But the ‘‘general aviation” operations handled by that

airport will have to be absorbed elsewhere. See H.R. .

Rep. No. 1002, 88th Cong., 1 Sess. 16, 17 (1963). If

all zoning ordinances-in Indiana based on the FAA

model are likewise destined: for oblivion the impact.

upon air transportation becomes clearer. If Indiana’s

fate is multiplied by fifty the prospects of protecting

approaches to the nation’s airports are dim.” The

alternative, indifference to safety and general welfare,

is even more distressing.

As far back | as 1943, the House Committee on Inter-

state and Foreign Commerce noted that ‘‘hundreds

- of millions of dollars are being spent on airports.’

H.R. Rep: No. 784, 78th Cong., Ist Sess. 11 (1943).

_ The Federal Airport Act became effective in 1947 and

‘since then a total of .$741;723,839. has been made

available by the Federal Government to states and local

communities in net project funds. Grant agreements, |

like the one Gary undertook with FAA, have com-

mitted $695,171,206 of that sum and 550,609,855

actually have been spent. S. Rep. No. 446, 88th Cong.,

1st Sess. 7 (1963). Early this year Congress appro-

J

21 Under the rationgle of the decision below a two thousand foot

‘*Eiffei Tower’’, three miles from Kennedy International. Airport

eould immobilize a principal runway at that vital gateway through

_which some 12,754,000 passengers moved last year. Port of New

York Authority, Annual Report of Airport Activity for Calendar

Year 1968, pp. 18 and 35. An obstruction comparably situated

could have an equally deleterious effect, at Chieago’s-O’Hare Field

where air carrier operations alone number nearly 1000 each day.

FAA, Air Traffic Actjvity 39 (Calendar Year 1963).

21

priated an additional 150 million” bringing the. total

Federal involvement wider the Airport Act alone just |

under the billion dollar mark. To receive Federal °

aid under the -Act, states:‘and local communities must

put up matching funds equal to 4 minimum of 50%

of the grant. Over-all Federal and state commitment

to civilian airport, development is already well over a

billion dollars. A need for another billion (specifically

€1,082,439,000) over the next five years is reflected

in FAA’s National Airport Plan recently submitted to

Congress.” :

The Federal concern with abet development, and

’ its deep involvement in it; rests primarily upon the

recognition of Congress, in common with this Court, -

that ‘‘the airplane is a part of the modern environment

_ of life’’ (328 U.S. 266) and that airports are beneficial,

not to special groups alone, but to the whole nation. —

In its Report to aceémpany S. 1153, amending the

Federal Airport Act, the Senate Commerce C omunittee .

. made this finding:

‘Airports are not sak local assets.. They do

not just benefit the large airlines, the private

and business pilots and the air travelers, but

vitally affect the ‘prosperity, well-being and

security of all our citizens. Airports play an

indispensable role in national defense, e.g., in

World War II over 429 civil airports were made

available to the Military Establishment. They are

continually available to the military in times of

national emergency. The use of civil airports,

22 Authorized by Pub. L. 88-280, footnote 3, p. 3, supra; appro-

priated by Pub. L. 88-507, 88th I akiees Sess. (August 30,

1964), p. 6.

23 National Airport Plan,-Requirements for Fiscal Years 1963. 67,

1963 Supplement, FAA Ex. No. 1, p. 75 (March 1963). ——

“

22

however, is not limited to times of war and

national emergency.’’ S. Rep. No. 446, supra,

at 17. '

Congress is crucielly concerned that everything be

done, that can reasonably be done, to permit the air-

plane to take-off, fly and land safely. Relying on the

Administrator’s expert judgment and advice that air-

craft are in critical configuration during take-offs

and landings, Congress very recently ratified the

Administrator’s historical attempts to enlist local

communities in the Federal effort to keep approach

areas free of ‘‘hazards.’’ Just last year it wrote into

law the requirement, cited at page 3, supra, that the

Administrator, as a condition to grant agreements,

satisfy himself that a reasonable attempt will be made

to zone around all airports listed on the National Air-

port Plan. This should remove any lingering doubts

that Congress believes that airport zoning is reason-

- ably related to public safety and general welfare.

Specifically the amendment adds a new paragraph

to section 11 of the Federal Airport Act so that the

section entitled ‘‘Project. Sponsorship” now reads:

+ “As a condition -precedent to his approval of a

project under this Act, the Administrator shall

receive assurances in writing, satisfactory to him,

that—

* * . ;

‘‘(4) appropriate action, including the adop-

tion 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 activities and purposes compatible with

normal airport operations including landing and

take-off of aircraft . . .’’ Pub. L. 88-280, supra.

&

+4

‘23

And te show conclusively Congress’ full awareness of

the problem: :

“As noted previously, other than extending the |

act an additional 3 years and incorporating some

minor amendments of a strictly technical nature,

the committee has approved only one new pro-

vision. This provision would amend section 11

of the Federal Airport Act so as to provide, as

a condition precedent to any grant that the ‘Ad- —

ministrator of the Federal Aviation Agency

satisfy himself that reasonable effort, including

enactment of zoning laws, has been made to restrict

the use of land adjacent to airports so as to make

it compatible with the operation of the airport.

‘‘A number of. witnesses questioned the desir-

ability of this provision and were apprehensive

as to its implications and the scope of its applica-

tion. The committee appreciates the concern of

these witnesses but does not share their fears that

‘any unreasonable burdens will be placed on- the :

local communities or the airport operators.

* * *

‘‘The growing seriousness of the aircraft noise

problem cannot be ignored or dismissed with the

attitude that time will eventually effect a solution.

Within reason, every present means to alleviate

noise should be employed. The committee is con-

-vineed that the single most important means is ©

to insure adequate zoning and that the proposed

amendment will contribute to such an ement. vis

S. Rep. No. 446, supra, at 20-22.% —

_ 4 The colloquy between Senator Monroney and dtailedernn

Halaby regarding Dulles Irternationak Airport during the latter's

testimony on S. 1153 is incisive. It shows, inter alia, that the mere

purchase of huge tracts of land does not solve the problem—that

reasonable zcning is essential too, if the public good is served.

Hearings Before the Aviation Subcommittee of the Committee on .

Commeree of the Senate, 88th Cong., Ist Sess., ser. 10 at 20-25

(1963). See State Flood-Plain Zoning, DePaul L. Rev., Summer

1963, 246-262.

24

The Report of the House Committes on Interstate and

Foreign Commerce is in part materia. H.R. ‘Rep.

1002, supra, at 6. :

CAB’s .accident investigation statistics greatly.

illuminate the relationship of airport zoning to public

safety and welfare. They go a long way toward ex-

plaining why national policy encourages airport

zoning. An excess of two thirds of all aircraft

accidents have happened either on or within 5 miies

of airports. This is uniformly true year after year.

For example, during the 5 year period 1957 through

(1961, CAB informs that 66% of-all air, carrier acci-

dents and fatalities occurred within-this area. In

the case of general av iation the figure. was.72.6% for

the Cane year period 1959 through 1961.”

"an 2 , . Kember of Percentage of

‘ Accidents on Accidents on

or. Within "or Within

Total Number 5 Miles of 5 Miles of

Year of Accidents Airport Airport

U.S. Air Carriers: . ‘

1957 112 71 63

1958 91 64 71

1959 101 61 60

1960 90 . 61 67

1961 ° —— we 72

Accidents, Fatalities Within the Vicinity of the Airport,

Civil Aeronauties Board Bureau of Safety, Aug. 22, 1963.

General Aviation (Small Fixed Wing) :

1959 4149 2893 / 69

1960 4384 5307 /

1961 4168 3096 74.

CAB,, Bureau of Safety Statistical Review, General Aviation,

Calendar Year 1959, pp. 13, 19, 27; Calendar Year 1960, ‘PP. 13,

19, 27: Calendar Year 1961, pp. 13, 19, 27.

Honorable Alan S. Boyd, Chairman of thé Civil Aergflautics

Board, testified. to the same effect last vear in supporting \amend-

ments to the Federal Airport Act. Hearings Before the Aviation

Subcommittee of the Committee on Commerce of the Senate, 88th

Cong., Ist Sess., ser. 10 at 29 (1963).

25

‘President Truman revealed an. awareness. ‘of this

‘pattern in 1952 when he asked General'J. H. Doolittle

to serve as Chairman of the President’s Airport Com-

mission which included the Administrator of Civil

Aeronautics, Mr. Charles F. Horne, and Dr. Jerome

Hunsaker, .Head, Department of Aeronautics, Massa- °

chusetts Institute of Technology. The Commission

was asked to look into the problem of airport location .

and use. The President’s letter to General Doolittle,

appointing him Chairman, opened with these words:

‘‘For some time now, I have begn seriously con-

cerned about airplane accidents, both commercial

and military, that have occurred in the take-off

and landing of aircraft, especially in heavily

populated areas. I have been concerned about the |

loss of life and I have been concerned about the

anxiety in some of our cities. I have decided to

set up a temporary President’s Airport Commis-

sion to look into the problem of airport location

and use .. .’’ Report of the President’s Airport

Commission, The Airport and Its Neighbors,

p.v., May 16, 1962. (Emphasis supp*‘ed.)

The so-called Doolittle Report submitted to the

President, no less than the statistics from CAB, attests

the .relationship between airport zoning regulations

and public safety and general welfare. In a section

entitled ‘‘An Analvsis of Risk’’ the report said:

‘‘An airport exists within a community for the ©

use of aircraft supplying the city with services

necessary to its welfare, When paths of fight

to and from the airport pass over inhabited areas, -

operations can constitute a potential hazard to

people who live or work in the airport approach -

zones. Similarly, any type of construction in the

approach zone represents a potential risk to the

aircraft and its occupants on take-off and landing,

26 : as

while tall structures under the airways create a

hazard to navigation dangerous both to people in

the airplane and on the ground.

“The possibility of an aircraft crashing into

one’s home is greatest in the rarrgw, elongated

strip of land that underlies the approach zone to °

“runways on airports. Commercial {air carrier) —

and -military- airplanes that have caused death‘ or

injury to persons on the ground near airports

have, in most cases, struck close to the projection

of the centerline of .the runway and within the

approach zone (fig. 7).”’ Jd. at pp. 49, 51.

(Emphasis supplied.) | sie

_ It would contradict all of this experience to hold

that zoning regulations imposing height limitations

in airport approaches are not substantially related to

‘public safety and general welfare. Without offending

‘common sense, it cannot be said that any regulation.

is more immediately connected with safety than one

designed to prevent aircraft, approaching for.a. land-

ing, from colliding with an obstruction and spreading

wreckage over adjacent property. In recognition of

governmental responsibility for the safety of people

living near airports, no less than for those who fly,”

the Administrator and Congress have encouraged local

communities to undertake appropriate zoning around

airports. In recognition of their obligations to con-

sider public safety and the general welfare, a rfimber

of cqmmunities, including Gary, Indiana, have

responded to the Federal urging. =

In Gary’s case, the Supreme Court of Indiana,

. though failing to say that the ordinance in question

26 Hearings Before the Aviation Subcommittee of the Committee

on Commerce of the Senate, footnote 24, supra, at 22 and 23.

; >

\

Oo

27

is ‘not substantially related to public safety and welfare, .

_ has viewed it, not as a conscientious attempt to make

the environs of an airport a safe place to live and work,

but as an effort to circumvent the Constitution and -

take private property under the guise of the police

power. If a decision so postulating is allowed to —

supersede the test this Court established in Euclid

and become the norm by which zoning around : the

nation’s airports is to be judged, then surely Mr.

Justice Cardozo was right when, discussing airports,

he wrote for the Court of Appeals of New York:

“The dwellers within the gates, even more than the

stranger from afar, will pay the price of blindness.’’

Hesse v. Roth, 249 N.Y. 436, 164 N.E. 342 (1928Y,

A strange logie would protect a river’s channel but

permit its harbors to fill in. A stranger Constitution

‘is. needed to allow a riparian’s wharf to be razed with-

out recompense but permit a hazard to ‘go up. im

navigable airspace beyond the reach of police power.”

III. CONCLUSION .

The Supreme Court of Indiana erred in treating

the Gary Ordinance as a ‘‘taking”’ of property *With-

out due process of law in violation of the Fourteenth

Amendment to the United States Constitution. and a

‘ttaking’’ for public use without compensation in

violation of Article 1, sec. 21 of the State Constitution,

rather than as a zoning regulation, the objectives of

. Which are substantially related to ‘public safety and

the general welfare, and thus a ‘valid exercise of the

- states’ police power. Assuming, aryuendo, that as

applied to Respondent’s property, particular sections

7 Cf. Greenleaf-Johnson Lumber Co. v. Gar ‘ison, supra, and

US. v. Porme Paving Co., supra, with the decision below..

of the ordinance are arbitrary and unreasonable, the

court erred in not confining its decision to such a

specific-application rather than declaring the ordinance

void in its entirety.

Wherefore, this amicus curiae urges this Court to

reverse, limit or clarify the decision of the Indiana

Supreme Court to’ ‘make elear that it does not regard

; zoning around airports as different from other types

of zoning and that airport zoning, including that based

‘on the FAA model, should be judged constitutionally

as specified in this Court’s opinion in Euclid v. Ambler,

supra, aud not treated/a priori a ‘‘taking or Sppro-

ae of private pro erty for 2 specific public use.’

Police power, which resides in the several states, has

been used for many purposes ranging all the way from

- limiting freedom of speech. to restricting. the height

of buildinggsfor aesthetic purposes. Supra, pp. 5-7.

Statutes and’ regulations adopted pursuant to police

power have been held valid when they were shown to

be substantially: related to ‘‘public health, safety,

morals or general welfare.’’ Supra, pp. 6-10. —

Noting that zoning laws are of relatively modern -

origin, this Court, in Euclid y. Ambler, supra, upheld

the constitutionality of.a comprehensive zoning regula- .

tion, among other things, limiting the height of

buildings in specified areas. That decision charted

the course to be followed .in judging zoning regula-

tions. There it was said that before such regulations

ean be declared unconstitutional, they must be ‘‘eon-

cretely applied to particular premises’’ and the pro-

visions so applied must be found “clearly arbitrary

and. unreasonable, ‘having no substantial reiation to

ae

ee

=

29

the public health, safety, morals, or ee: welfare’’.

Supra,pp.8-10. . °,

The Supreme Court of Indiana, in ain: the

instant case, made no effort to follow the instructions

of Euclid. Instead of treating the several provisions —

of the Gary Ordinance separately and applying each

concretely to Respondent’s premises, . that court

declared the whole ordinance unconstitutional as a

‘“‘taking’’ of private property without. compensation

under the guise of police. power and thus violative of

the Fourteenth Amendment to the United States Con-

stitution and Article 1, sec. 21 of the State Constitu-

tion. Nowhere did the court indicate wherein the

ordinance, which was based on a model devised by

FAA, the Federal] Agency responsible for promoting

aviation safety, was not substantially related to public

safety and general welfare. Supra, pp. 10 and 11. Cf. .

Harrell’s Candy Kitchen v. Sarasota-Manatee je Airport

Authority, supra.

We take no position as to whether specific provisions

of the Gary Ordinance may be considered a ‘‘taking”’

or otherwise void when .applied .to Respondent’s

identifiable real estate. We submit that the court

_below erred in striking down the ordinance in toto.

_ In addition to its erroneous treatment of zoning in

the vicinity of airports as different from other zoning,

the decision below is:based upon a misconception of

decisions of this Court in which a ‘‘taking’’ was said

to have occurred'— particularly United States v.

Causby, supra, -and Griggs v. Allegheny County,

supra, Where frequent over-flights at very low altitudes

were held to ‘‘take”’ the reasonable use of property

- as a residence. (Note Goldblatt v. Town of Hemp-

stead, supra, Where it was held that an ordinance is

at

30 |

not unconstitutional merely because it deprives

property of its most beneficial use.) Moreover, if it

is not the product of confusion, the decision below

applies a double standard for measuring ‘‘taking’’—

the ordinance was declared’a ‘‘taking’’ per se, yet

‘factual encroachment’’ by aircraft was said to be

needed to support an inverse condemnation proceed-

ing. Supra, pp. 11-13.

If the nation’s air transport needs are to be served

through safe and efficient airports, a Federal-State

_ partnership is essential.. The Federal Government

must provide financial assistance to local communities

and devise. safe operating procedures. Sitaies (and

local communities) must use police power to adopt

appropriate zoning regulations to protect approaches

_to the airport for the safety and well-being of both the

' traveling public and ‘airport neighbors. Supra,

pp. 3-8, 19, 21-24. Ay

The Federa] involvement in airport development .

-and the promotion of safety is immense, both in terms

of dollars and regulation. Earlier this year, Congress

‘ amended the Federal Airport Act to require the

Administrator,-as a condition precedent to Federal

assistance under .the Airport Act, to receive written

- assurances from airport sponsors that appropriate

zoning will be undertaken to restrict the use of land

in the immediate vicinity of airports to activities. and

purposes compatible with normal operations, which

include landings and take-offs. The legislative history

of this amendment: makes it clear that Congress

regards airport zoning as substantially related to

public safety and general welfare. Supra, pp. 19-24.

‘‘Substantial relation’’ of airport zoning to" public

safety and general welfare is further attested by

31

accident investigation statistics provided by CAB

which reveal that year after year more than two-

thirds of all aircraft accidents occur on or within

5 miles of airports—by the notoriety that led President

Truman to create the Doolittle Commission. to look °

into the matter—and by the so-called Doolittle Report

which emphasizes that the possibility of crashing is

greatest in the approach zone and that tall structures |

- ereate ‘“‘a hazard to navigation dangerous both to

people in the airplane and on the ground”’. ange,

pp. 24-26.

The Indiana Court’ s a priori nullification éf a zoning

ordinance based on the FAA model thus: goes off the

course charted in Euclid; tends to obscure the mean-

ing of Causby and Griggs; and paralyzes efforts in

Indiana to cooperate with the Federal Government in —

making ‘airports ‘safer for the traveling public and

airport communities safer places in which to live and.

work. If the decision is upheld and followed in other

states, approaches to the nation’s airports, unlike the

nation’s harbors, will be placed beyond the reach of

governmental regulation. ‘See - Greenleaf -J ohnson

Lumber Co., supra. ioe

Respectfully submitted,

Joan E. STEruen,

GrorcE S, LapHAM, JR.

_. Air Transport Association

of America

Suite 900

1000 Connecticut Av enue, N.W.

Washington 6, D. C. |

Attorneys for Amicus Curiae