In re Commercial Airfield

In re Commercial Airfield (99-079); 170 Vt. 595; 752 A.2d 13

[Filed 27-Jan-2000]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-079

                             DECEMBER TERM, 1999


In re Commercial Airfield	       }	APPEALED FROM:
                                       }
                                       }
     	                               }	Environmental Board
                                       }	
                                       }
                                       }	DOCKET NO. Dec. Ruling #368


             In the above-entitled cause, the Clerk will enter:


       Appellant Edward V. Peet owns an airport in Cornwall, Vermont.  Due to
  certain  improvements to his airport and associated flight activities, the
  District Environmental  Commission informed him that he needed to apply for
  a permit pursuant to 10 V.S.A. §§ 6001-6092 ("Act 250").  Appellant
  objected to this requirement on the basis that Act 250 was  preempted by
  federal law and petitioned the Environmental Board for a declaratory
  ruling.  The  Environmental Board held an evidentiary hearing and affirmed
  the District Commission's  jurisdictional opinion requiring appellant to
  obtain an Act 250 permit.  On appeal, appellant again  argues that Act 250
  jurisdiction is preempted by federal aviation law.  We disagree and affirm.

       Appellant's airport is located within the 600-acre Peet farm.  It is
  comprised of a runway  and a maintenance shop.  Aircraft maintenance
  services are performed within the shop.  A crop-dusting company servicing
  local farms operates out of the airport.  The Environmental Board 
  determined that appellant was required to apply for a permit under Act 250
  for this airport and  its aviation-related activities. See 10 V.S.A.§
  6001(3).

       While the Environmental Board made numerous findings of fact and
  conclusions of law, the  only issue on appeal is whether the Environmental
  Board's application of Act 250 to appellant's  property is preempted by
  federal law.  We generally defer to the Environmental Board's 
  interpretation of Act 250.  See In re Killington, Ltd., 159 Vt. 206, 210,
  616 A.2d 241, 244  (1992) (citations omitted).  We also defer to the
  Environmental Board's conclusions of law if they  are rationally derived
  from the correct interpretation of law and findings of fact based on 
  substantial evidence. See id. We "have often recognized the Board's special
  expertise in  determining . . . . the scope of its authority."  In re
  Stokes Communications Corp., 164 Vt. 30,  35, 664 A.2d 712, 715 (1995).

       The United States Constitution provides that "the laws of the United
  States ... shall be the  supreme Law of the Land."  U.S. Const. art. VI,
  cl. 2.  This supremacy clause allows for the

 

  federal preemption of state and local laws.  See Cipollone v. Ligget Group,
  Inc., 505 U.S. 504, 516 (1992) (citations omitted).  There are four ways
  in which federal law can preempt state  law: explicit or implicit statutory
  language, actual conflict, or occupation of the field.  See id.

       Appellant argues that federal regulations pervasively and fully occupy
  the field of aviation,  thereby preempting all state laws related to
  aviation. (FN 1)  Appellant frames the question as  whether federal law has
  fully occupied the field of aircraft operation.  The appropriate and 
  narrower question is whether the federal government has fully occupied the
  field of land use as  it relates to aircraft operation.

       The purpose of the Federal Aviation Act (the "Aviation Act") is "to
  promote air traffic  safety."  See Bullwinkel v. Federal Aviation Admin.,
  23 F.3d 167, 169 (7th Cir. 1994).  In  contrast, Act 250 was enacted in
  order to "protect and conserve the environment of the state."  See In Re
  Juster Assoc., 136 Vt. 577, 580, 396 A.2d 1382, 1384 (1978) (citing 1969
  No. 250  (Adj. Sess.), § 1).  It is difficult to see how the local land-use
  regulations promulgated under Act  250 could encroach on territory that the
  federal government, through the Aviation Act, has  reserved for itself.

       It is well-established that the Aviation Act gives the Federal
  Aviation Administration  exclusive jurisdiction over airspace in the United
  States.  See 49 U.S.C.A. §§ 40101-50105; City  of Burbank v. Lockheed Air
  Terminal, Inc., 411 U.S. 624, 627 (1973).  The issue here, however,  is the
  extent to which the Aviation Act and regulations of the FAA and other
  federal agencies  preempt local land-use regulations.  The Board's careful
  review of the intersection between federal  aviation policies and local
  land use regulation concluded that no conflict existed.

       There are two ways in which the FAA's authority intersects with
  land-use issues.  First,  the Aviation Act provides that the Environmental
  Protection Agency will assist them on airport  development projects to
  ensure there is no significant impact on natural resources, water and air 
  quality, and other environmental concerns.  See 49 U.S.C.A. § 47101(h). 
  This policy applies to  developments at airports falling within certain
  guidelines, for example, large size, number of  flights and number of
  passengers. See id. at § 47102 (definitions of "airport development," 
  "public airport," etc.).  The Peet Airport is small and privately-owned,
  thereby exempting it from  these guidelines.

       Second, the FAA conducts aeronautical studies to determine the
  appropriateness of airport  construction and deactivation, which may relate
  to land-use issues.  See 14 C.F.R. § 157.7.  The



  FAA considers factors such as traffic patterns of neighboring airports, the
  effect on existing  airspace structure and projected programs of the FAA,
  and the impact of existing or proposed  manmade structures.  See id.  The
  regulation explicitly states that any decision related to airport 
  construction or deactivation "does not relieve the proponent of
  responsibility for compliance with  any local law, ordinance or regulation,
  or state or other [f]ederal regulation.  Aeronautical studies  and
  determinations will not consider environmental or land use compatibility
  impacts."  Id.  These  regulations demonstrate that "environmental impact
  and land use compatibility are matters of local  concern and will not be
  determined by the FAA."  Gustafson v. City of Lake Angelus, 76 F.3d 778,
  785 (6th Cir. 1996). We agree with the Board's conclusion that although the
  federal  government has preempted certain aspects of aircraft and airport
  operation, it has not preempted  land use issues such as zoning and
  environmental review.

       Further evidence of the FAA's lack of authority in governing land-use
  issues is provided  in Blue Sky Entertainment v. Town of Gardiner, 711 F. Supp. 678, 683 (N.D.N.Y. 1989).  An  action was brought challenging the
  validity of a town ordinance regulating small airports and 
  parachute-jumping centers.  The FAA provided a letter to the town in which
  it noted that certain  portions of the ordinance, including aircraft
  operations and aircraft noise, were "preempted by  federal regulation of
  the field."  Id.  The letter went on to specifically state "to the extent
  the  ordinance regulates land use in the Town of Gardiner, it is not
  preempted by federal regulation  of aviation."  Id.  The federal district
  court relied in part on this FAA letter in affirming that the  town could
  require the airports to apply for a license and stated there was no
  evidence "how a  mere requirement of a license [under the ordinance] is
  preempted by federal law."  Id. at 693.

       Appellant cites various cases as proof that the federal government has
  in place a pervasive  scheme of aviation regulations that preempts any
  state or local land-use laws.  His reliance on  these cases is misplaced
  because they address the FAA's control over navigable airspace and 
  aviation safety.  See Abdullah v. American Airlines, 181 F.3d 363, 367 (3rd
  Cir. 1999) (federal  law preempts standards for air safety); and City of
  Burbank, 411 U.S.  at 638 (FAA regulates flow  of air traffic and, by
  extension, aircraft noise).  Here, there has been no attempt by the 
  Environmental Board to regulate air safety or aircraft noise.  The
  Environmental Board is simply  requiring that appellant apply for an Act
  250 permit.

       Appellant relies most heavily on a Ninth Circuit case where the court
  held that federal law  preempted a city ordinance that attempted to govern
  a runway expansion project.  See Burbank-Glendale-Pasadena Airport
  Authority, Inc. v. City of Los Angeles, 979 F.2d 1338, 1341 (9th Cir. 
  1992).  Appellant argues that this case is analogous to his situation
  because it illustrates that  federal laws have preempted expansion projects
  at established airports.  The case more accurately  shows that the FAA is
  primarily involved with safety and airspace issues.  The Ninth Circuit 
  accepted the lower court's determination that the runway expansion would
  improve safety and  reduce aircraft noise.  See id. at 1339.  As previously
  stated, the FAA has authority over air  safety concerns and aircraft noise
  regulations.  See City of Burbank, 411 U.S.  at 627.  Thus, the  court found
  that the regulation, which attempted to interfere with the movements and
  operation  of aircraft, was preempted.  Because Act 250 is concerned with
  environmental and land-use



  issues, Glendale-Pasadena does not offer a relevant analogy.

       In addition, we find the Ninth Circuit's cursory review of the
  preemption issue unhelpful  in this situation and decline to follow their
  holding.  Cf. City of Cleveland v. City of Brook Park,  893 F. Supp. 742,
  751 (N.D. Ohio 1995) (Ninth Circuit's "view of the scope of the Aviation
  Act  is simply broader than that implied in a reasonable reading of the
  statute.").

       We conclude that the federal government has not pervasively occupied
  the field of land-use  regulations relating to aviation.  Therefore, the
  Environmental Board was correct in determining  that appellant may be
  required to apply for an Act 250 permit (FN 2) and that such requirement 
  is not preempted by federal law.


       Affirmed.	




                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice



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                                  Footnotes


FN1.  Appellant makes the additional argument that the commerce clause
  precludes the  Environmental Board from regulating private activity. This
  argument is inadequately briefed and  will not be considered by the Court.
  See V.R.A.P. 28(a)(4); Johnson v. Johnson, 158 Vt. 160,  164 n.*, 605 A.2d 857, 859 n.* (1992).

FN2.  As the Environmental Board acknowledges in its opinion, while the
  requirement to apply  for an Act 250 permit is not preempted, certain
  conditions stipulated by an Act 250 permit may  be preempted.  Because
  Appellant has not yet taken the first step of applying for an Act 250 
  permit, this question is premature.