398 F.2d 369: American Airlines, Inc., et al., the Port of New Yorkauthority and Charles H. Ruby, et al.,plaintiffs-appellees, and Theadministrator of the Federalaviation Agency,intervenor-appellee, v. Town of Hempstead et al., Defendants-appellants
United States Court of Appeals Second Circuit. - 398 F.2d 369
Argued June 13, 1968.Decided July 17, 1968
Fowler Hamilton, New York City (Lyman M. Tondel, Jr., George Weisz, James D. Wiese, and Cleary, Gottlieb, Steen & Hamilton, New York City, on the brief), for plaintiffs-appellees American Airlines, Inc., and others.
Daniel B. Goldberg, New York City (Joseph Lesser, Isobel E. Muirhead, and Sidney Goldstein, New York City, on the brief), for plaintiff-appellee The Port of New York Authority.
Samuel J. Cohn, New York City (Bruce H. Simon, and Cohen & Weiss, New York City, on the brief), for plaintiffs-appellees Charles H. Ruby, and others.
Howard E. Levitt, Hempstead, N.Y. (Robert M. Foley, Hempstead, N.Y., on the brief), for defendants-appellants.
Norman G. Knopf, Atty., Dept. of Justice, Washington, D.C. (Edwin L. Weisl, Jr., Asst. Atty. Gen. and John C. Eldridge, Atty., Dept. of Justice, Washington, D.C.; Joseph P. Hoey, U.S. Atty. for the Eastern District of New York, on the brief), for intervenor-appellee.
Before SMITH, KAUFMAN and HAYS, Circuit Judges.
J. JOSEPH SMITH, Circuit Judge:
The Town of Hempstead appeals under 28 U.S.C. 1292(a)(1) from an order of the District Court for the Eastern District of New York, John F. Dooling, Jr., Judge, granting a preliminary injunction against enforcement of its Unnecessary Noise Ordinance (No. 25), Article II, as amended March 10, 1964, so far as it applies to aircraft using John F. Kennedy International Airport. Judge Dooling's opinion appears at 272 F.Supp. 226.
Since the District Court's complete and precise findings of fact (see appellant's appendix, pp. 200a-264a) as to a great number of technical matters are not being attacked on this appeal, a short statement of the facts may suffice. The Town of Hempstead, primarily residential, is the largest town in New York State, with an estimated population in 1963 of nearly 806,000. It lies to the east of John F. Kennedy International Airport ('JFK'), and it is estimated that 150,000 people live in its incorporated villages which lie within three miles of the Airport. These people share with many others, inside and outside Hempstead and across the country, a severe aircraft noise problem which has developed in the years since the Second World War. As the District Court said:
In the years since 1948 * * * turbo and fan jet aircraft have all but displaced turbo and piston driven propeller craft. Larger, heavier and faster than propeller craft, the jets have demanded lengthened runways, and exacted new constants of air traffic management. * * * The inverted truncated cone of air space resting on the airport, that can be thought of as representing the zone marked by the jets' landing glide slopes of about three degrees, was far nearer the edges of the airport and closer down on the bordering communities. It was as if every existing propeller craft runway had been suddenly moved out toward the boundary of the airport. * * * The impact on the surrounding communities was marked and unhappy. 272 F.Supp. at 228-229.
Because of the frequency with which jets fly in and out of JFK, the problem in Hempstead may be somewhat worse than in other communities. The District Court found that:
There is credible evidence that the noise of an aircraft overflight in Hempstead is frequently intense enough to interrupt sleep, conversation and the conduct of religious services, and to submerge for the duration of the maximum noise part of the overflight the sound of radio, phonograph and television. (Finding #127)
There is credible evidence that the noise of an aircraft overflight in Hempstead is frequently intense enough to interrupt classroom activities in schools and to be a source of discomfort to the ill and distraction to the well. (Finding #128)
It is a fair inference from the affidavits, the demonstration (in the courtroom) of the sound levels recorded in the Town and the evidence of frequency of overflights that airplane noise is a factor of moment affecting the decisions of people to acquire or dispose of interests in real property in the areas within the Town affected by the sound of airplane overflights. (Finding #129)
In an attempt to deal with the problem, the Town added a new article to its Unnecessary Noise Ordinance, forbidding anyone from operating a mechanism or device (including airplanes) which creates a noise within the Town exceeding either of two 'limiting noise spectra.' Claiming that the ordinance would prohibit airplanes using JFK from flying over the town, and thus would restrict the landing and take-off patterns and procedures normally adhered to by those airplanes, nine major American-flag air carriers, The Port of New York Authority, Charles H. Ruby as president of the Air Line Pilots Association, three air line pilots, individually and as representatives of their class, and the Administrator of the Federal Aviation Agency (as intervenor) sued to enjoin the enforcement of the ordinance against them.
The Town argued initially that aircraft could fly over the Town in compliance both with the ordinance and with the FAA regulations governing landing and take-off patterns and procedures. There was no question, however, but that at the time the suit was brought, take-offs and landings at JFK regularly produced noise exceeding the relevant limiting noise spectrum of the ordinance.
The District Court made crucial findings of fact which contradict the Town's initial argument that compliance with the ordinance is possible without alterations in flight patterns and procedures, and the Town has now shifted its ground, arguing in essence that the ordinance is not an undue burden on interstate commerce, because 'the Town has unveiled a plan pursuant to which approximately 98% Of all flights (to and from JFK) will avoid the Town while, at the same time, the present traffic capacity will be unaffected.' (Town's brief, p. 22).
The crucial findings of fact are Nos. 281-294.1 The court found that compliance with the ordinance would be determinative of the altitudes at which and flight paths by which commercial aircraft could fly into and out of JFK; that the flight requirements flowing from the ordinance would be in large part incompatible with existing traffic patterns and FAA procedures; that compliance would mean redesigning of the flight patterns for JFK, together with a reintegration of the redesigned patterns with those for the other New York City airports, and that the safety margins of the existing procedures could not be preserved without restricting the traffic handling capacity of JFK; and that there is no reliable evidence that a set of procedures could be devised for JFK in the present state of aviation development which could, without substantial sacrifice of the interest in flight safety, assure compliance with the ordinance. None of these findings have been attacked on this appeal, except that the Town still insists that its alternate plan, submitted to the District Court, could steer most flights away from the Town, thus assuring compliance with the ordinance. Apart from the lack of a showing that the District Court's finding to the contrary is clearly erroneous, it is clear that given the necessary determination of the legal issues in the case, the Town's alternate plan, even if it were feasible, would be irrelevant.
On the basis of his detailed and thorough findings of fact, Judge Dooling concluded: (1) that the ordinance is an unconstitutional burden on interstate commerce; (2) that the area in which the ordinance operates has been preempted by federal legislation and regulation; and (3) that the ordinance is in direct conflict with valid applicable federal regulation.
Any one of the District Court's three conclusions is enough, of course, to make the ordinance invalid. There is no need for determination of the validity of the first two grounds, since the third ground for the ordinance's invalidity (that it is in conflict with applicable federal regulation) is an ample basis for affirmance. In Loma Portal Civic Club v. American Airlines, Inc., 61 Cal.2d 582, 39 Cal.Rptr. 708, 394 P.2d 548 (1964), the California Supreme Court affirmed a refusal to enjoin flight operations at a public airport at the behest of the owner of property in the neighborhood of the airport, basing its decision on the narrow ground that it is clearly against the policy of the State of California for its courts to interfere with airport flight patterns which are established by federal regulation. The court explicitly refused to accept an argument that the regulation of aviation has been pre-empted by federal legislation and regulation; indeed, the opinion indicated that the court thought there was no pre-emption.
Before considering the grounds advanced by the District Court for the conclusion that the ordinance is invalid, we may point out that this case has nothing to do with questions of landowners' rights to compensation for overflights of their land which amount to a 'taking' of their property. (See United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946), and Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962).) All that is involved is the validity of the ordinance.
We consider first the point that the ordinance is in direct conflict with a valid applicable federal regulation. The Federal Aviation Act of 1958 provides, inter alia:
There is recognized and declared to exist in behalf of any citizen of the United States a public right of freedom of transit through the navigable airspace of the United States. (49 U.S.C. 1304)The Administrator is authorized and directed to develop plans for and formulate policy with respect to the use of the navigable airspace; and assign by rule, regulation, or order the use of the navigable airspace under such terms, conditions, and limitations as he may deem necessary in order to insure the safety of aircraft and the efficient utilization of such airspace. * * * (49 U.S.C. 1348(a))
The Administrator is further authorized and directed to prescribe air traffic rules and regulations governing the flight of aircraft, for the navigation, protection, and identification of aircraft, for the protection of persons and property on the ground, and for the efficient utilization of the navigable airspace, including rules as to safe altitudes of flight and rules for the prevention of collision * * *. (49 U.S.C. 1348(c))
As Judge Dooling found, the Administrator (Administator of the Federal Aviation Agency, see 49 U.S.C. 1301(1)) has promulgated extensive regulations under the Act, which unquestionably control the patterns and procedures of aircraft flying into and out of JFK.2 The ordinance and these regulations are unquestionably in direct conflict. They are in conflict not because the regulations and the ordinance impose different standards for noise, but because the District Court has found, in view of the present state of development of noise suppression techniques, that compliance with the noise ordinance would require alterations in the flight patterns and procedures established by federal regulation.
In Allegheny Airlines, Inc. v. Village of Cedarhurst, 238 F.2d 812 (2 Cir. 1956), this court relied on the provisions of the Civil Aeronautics Act of 1938, which are somewhat less comprehensive than the provisions of the 1958 Act quoted above, to declare invalid an ordinance which prohibited air flights over the Village of Cedarhurst at altitudes of less than 1,000 feet. The opinion can be read either as a holding that the entire field of regulation of aircraft flight has been pre-empted by the federal government, or as a holding that the particular ordinance involved was in conflict with the federal regulatory scheme. In Loma Portal Civic Club v. American Airlines, Inc., supra, the California Supreme Court chose the narrower reading of the Cedarhurst case. Whichever reading is accepted it is clear that Cedarhurst is square precedent for holding the Hempstead ordinance invalid, for in effect there is square conflict between the local ordinance and federal regulation in each case; indeed, the Hempstead ordinance is in effect a more comprehensive regulation of air traffic patterns than was the Cedarhurst ordinance. (For one thing, it would bar flights at altitudes much higher than 1,000 feet; see, e.g., Finding No. 199:3 the vast majority of commercial jet aircraft could comply with the ordinance on take-off from JFK only by flying over the Town at minimum altitutes ranging from 5,050 to 14,200 feet for turbojets and from 3,900 to 11,300 feet for turbofans.)
The Town argues that Judge Dooling erred in concluding that the ordinance must be tested as if there were a set of ordinances each enacted by a bordering town, and taken all together enveloping the airport. Reliance is placed on the statement in Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 448, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960) that the court would not consider the argument raised by the appellant there (who was contesting the constitutionality of a smoke abatement ordinance enacted by the City of Detroit as it applied to its vessels operating in interstate commerce) that different communities might enact smoke abatement ordinances with different standards, because the appellant had pointed to no such ordinances. The Town's analogy is false. The problem in this case is that Hempstead's ordinance would cause aircraft to fly over other towns, not that different towns might enact different noise ordinances. More important, there was no conflict between local and federal regulation in the Huron case; the problem there was undue burden on interstate commerce.
The Town also argues that Cedar-hurst is irrelevant, because it regulated flight paths, while Hempstead's ordinance regulates noise. That ignores the essential point in the case, which is that some noise ordinances necessarily regulate flight paths, and the District Court found that Hempstead's is one of those.4 In view of that finding, the injunction naturally followed. The order granting preliminary injunction is affirmed.
281. The Town of Hempstead intends to enforce the Amended Ordinance and has counterclaimed for an injunction against plaintiffs' violation of the Ordinance
See Findings Nos. 67-104, as follows:
199. The same calculations indicate that the vast majority of commercial jet aircraft could comply on take-off only by flying over the Town of Hempstead at much higher minimum altitudes (in the range 5,050 to 14,200 feet for turbojets and in the range 3,900 to 11,300 feet for turbofans)
In view of the conflict between the ordinance and the federal regulation we need not consider the questions of federal pre-emption, and undue burden on interstate commerce. In some situations, federal legislation and regulation is deemed so pervasive as to rule out all state and local attempts to regulate in the areas thus 'pre-empted' by the federal government. See, e.g., Campbell v. Hussey, 368 U.S. 297, 82 S.Ct. 327, 7 L.Ed.2d 299 (1961). The area of flight patterns and procedures may be one of these; this court's opinion in the Cedarhurst case implies that it is, where as the California Supreme Court's opinion in Loma Portal Civic Club v. American Airlines, Inc. says that it is not. See also City of Newark, New Jersey v. Eastern Airlines, Inc., 159 F.Supp. 750 (D.N.J.1958)
The third point involves the question whether the ordinance unduly burdens interstate commerce. If it was an undue burden on commerce for the State of Arizona to regulate the length of trains operating within the state, see Southern Pacific Co. v. State of Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945), it may be that this particular ordinance, found to regulate aircraft flight paths and procedures, is an undue burden on commerce. But the problem arises that it is this particular noise ordinance in this particular setting which is found to regulate flight paths and procedures; another noise ordinance might not have that effect.