RICHARD McGINN v. SOMERSET AIR SERVICE, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0531-07T20531-07T2

RICHARD McGINN and

LORRAINE McGINN,

Plaintiffs-Appellants,

v.

SOMERSET AIR SERVICE, INC.

and DANIEL WALKER,

Defendants-Respondents.

 

 

Submitted May 21, 2008 - Decided

Before Judges Lihotz and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-391-06.

Cohn, Lifland, Pearlman, Herrmann & Knopf, L.L.P., attorneys for appellants (Leonard Z. Kaufmann, of counsel and on the brief).

Norris, McLaughlin & Marcus, P.C., attorneys for respondents (Joseph J. Fleischman, of counsel; Haekyoung Suh, on the brief).

PER CURIAM

Plaintiffs, Richard and Lorraine McGinn, filed an action seeking injunctive and other relief against defendant, Somerset Air Service, Inc. (SAS), the owner and operator of the Somerset County Airport (Airport), and Daniel Walker, the president of SAS. The complaint claimed defendants violated a 1949 Chancery Division judgment (1949 judgment), which enjoined airplanes from flying in close proximity to the plaintiffs' residence, when arriving or departing the Airport. The trial court concluded the terms of the 1949 judgment were preempted by federal statutes and regulations. The court granted defendants' request for summary judgment and dismissed count one of plaintiffs' complaint. Plaintiffs voluntarily dismissed the remaining counts of their complaint, with prejudice, and with a reservation the claims could be reinstated in the event summary judgment was reversed on appeal. We affirm the dismissal of the action because airspace management and aircraft noise, which includes setting flight patterns, have been preempted by federal law.

The following facts are derived from the record submitted by the parties in support of and in opposition to the summary judgment motion and are viewed in a light most favorable to plaintiffs. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In 1948, Donald and Mary Hyde sued SAS and others complaining of noise caused by airplanes taking off and landing at the Airport adjacent to their 425 acre property. Hyde v. Somerset Air Servs., 1 N.J. Super. 346, 352 (Ch. Div. 1948). The Hyde's residence predated the airport, which was built in May 1946. Following trial, the 1949 judgment enjoined planes using the airport from flying in close proximity to the Hyde's residence. Id. at 353. In compliance with the 1949 judgment, SAS posted the required flight patterns on the Airport bulletin board and thereafter, displayed them on the Airport's website and in other publications.

Plaintiffs purchased the Hyde property on August 12, 2005. Thereafter, plaintiffs complained that planes using the Airport were not following the identified flight patterns. Plaintiffs asserted the deviation caused "a nuisance . . . [and] also pose[d] a safety threat." SAS maintained it continued to comply with the 1949 judgment and posted notices in the Airport. Plaintiffs filed suit to enforce the provisions of the 1949 judgment and for other relief.

On appeal, plaintiffs challenge the Chancery Division's grant of summary judgment dismissing their request to enforce the 1949 judgment because regulation of aircraft noise has been preempted by federal law. Plaintiffs maintain the judge erred in determining preemption applied because the acceptable flight patterns were the result of an agreement reached between the parties, not the exercise of the State's police power. In support of their position, plaintiffs reference: (1) Walker's testimony that he, and not the court, imposed the flight patterns to avoid plaintiffs' residence; (2) the Chancery Judge's opinion dated October 8, 1948, which states: "Specific flight patterns with accompanying instructions have now been devised and posted and circulated" showing the parties formulated the flight patterns by consent, Hyde, supra, 1 N.J. Super. at 353; and (3) the 1949 judgment, which incorporated specific flight patterns "submitted to the court by the defendants," and required those flight patterns to be posted at the airport accompanied by the statement: "The flight patterns above described are required to be pursued in compliance with the judgment of the Superior Court of New Jersey."

We use the same standard as the trial court when deciding a summary judgment motion. Jolley v. Marquess, 393 N.J. Super. 255, 267 (App. Div. 2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Brill, supra, 142 N.J. at 528-29. "Genuine" means "only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

Air commerce and safety are governed by the Federal Aviation Authorization Act of 1994 (FAAA), 49 U.S.C.A. 40101 to 40129. To ensure the safety of aircraft, the efficient utilization of airspace and the protection of persons and property on the ground, the federal government exercises exclusive sovereignty of the airspace of the United States. 49 U.S.C.A. 40103.

The initial legislation imposing federal government regulation in the field of aviation was in the Air Commerce Act of 1926, formerly 49 U.S.C.A. 171. Further, Congressional enactments including the Civil Aeronautics Act of 1938, formerly 49 U.S.C.A. 401, and the Federal Airport Act of 1946, formerly 49 U.S.C.A. 1101, expanded the purview of the federal authority. Comprehensive revision or repeal of existing statutory authority occurred with the enactment of the Federal Aviation Act of 1958 (Act), formerly 49 U.S.C.A. 1301. The Act created the Federal Aviation Administration (FAA) as the regulatory body overseeing the field. Over time, Congress has amended the statute increasing the scope of authority afforded the FAA.

The regulation of excessive aircraft noise is a cooperative enterprise in which both federal authorities and local airport proprietors play a part. British Airways Bd. v. Port Auth. of N.Y., 558 F.2d 75, 83 (2d Cir. 1977). Over time, however, the varied local efforts used to control overflying jet noise has elevated concern for safe and efficient air transportation so that Congress designated the exclusive control of airspace management rests at the national level. Ibid.

The Aircraft Noise Abatement Act of 1968 gave the agency responsibility to promulgate "such regulations as the FAA may find necessary to provide for the control and abatement of aircraft noise and sonic boom." Pub. L. No. 90-411, 82 Stat. 395, formerly 49 U.S.C.A. 1431(b)(1); see British Airways Bd., supra, 558 F.2d at 83-84 (FAA to provide regulations to reduce aircraft noise). Further, amendments in 1972, 86 Stat. 1234, currently found at 49 U.S.C.A. 47501 to 47510, strengthened the FAA's regulatory role regarding noise abatement in keeping with the agency's authority in an area that it already totally preempted - control of flights through navigable airspace. Id. at 75. In October of 1990, Congress passed a comprehensive statute that created uniform procedures for enacting airport noise restrictions known as the Airport Noise and Capacity Act (ANCA), 49 U.S.C.A. 47521 to 47533. The provisions of the ANCA are included in the current aviation code. The FAAA, adopted in 1994, continues the FAA's comprehensive administrative responsibility to protect the public health and welfare from aircraft noise. 49 U.S.C.A. 44715.

We understand plaintiffs' argument on appeal to suggest that the Airport, as a proprietor, may enter into agreements to abate aircraft noise without impinging the scope of federal authority. Plaintiffs argue the 1949 judgment present the parties' agreement of the proper flight patterns, and they now seek the court's aid to continue to enforce that agreement.

The United States "Supreme Court has refrained from holding that Congress has occupied the field of noise regulation to the exclusion of airport proprietors[,]" and the legislation allows local proprietors to issue "regulations or . . . requirements as to the permissible level of noise[,] which can be created by aircraft using the airport." British Airways Bd., supra, 558 F.2d at 84 (citing City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 635 n.14, 93 S. Ct. 1854, 1861 n.14, 36 L. Ed. 2d 547, 555 n.14 (1973). Arguably, local proprietors may retain a limited role in developing reasonable, nonarbitrary and non-discriminatory regulations by utilizing noise abatement programs consonant with local conditions. Burbank, supra, 411 U.S. at 635 n.14, 93 S. Ct. at 1861 n.14, 36 L. Ed. 2d at 555 n.14; Nat'l Helicopter Corp. of Am. v. City of New York, 137 F.3d 81, 89 (2d Cir. 1998); British Airways Bd., supra, 558 F.2d at 84. However, it is without question that Congress has preempted the area of aviation management. Restrictions on aircraft operations are a discouraged means of achieving the shared goal of controlling noise.

The legislative history of [the statutory provisions] makes clear that Congress intended to continue the division of responsibility for aircraft noise abatement previously worked out between federal and local governments. Under this scheme, states and localities cannot regulate noise by controlling the flight of aircraft taking off or landing at local airports, for this method of regulating noise control is to be exercised exclusively by the federal government. On the other hand, states and localities retain power in their capacity as airport proprietors to establish requirements as to the level of permissible noise created by aircraft using their airports.

[Global Int. Airways Corp. v. Port Auth. of N.Y. & N.J., 727 F.2d 246, 248 (2d Cir.), reh'g denied, 731 F.2d 127 (2d Cir. 1984).]

Thus, we reject the notion that an airport proprietor may agree to mandate flight patterns to achieve the objective of noise abatement. Such a practice squarely conflicts with an area that Congress has preempted. The aviation adage, "from the airports to the sky to the planes that fly--is largely in the federal dominion," succinctly reminds us of the scope of federal authority. Peter D. Irvine, Casenote: The Future Of Stage 2 Airport Noise Restrictions: A Matter Of Substantive Versus Procedural Review By The Federal Aviation Administration, 11 Geo. Mason L. Rev. 179, 181 (2002). After carefully considering the record and briefs, we are satisfied Judge Ciccone properly granted summary judgment to defendants.

Affirmed.

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A-0531-07T2

July 10, 2008