|AIRPORT NOISE LAW|
By TROY J. COLE
Source: 194 Journal of Air Law and Commerce 159-237 (1993)
I. Introduction |
II. Background of the DFW Airport Controversy
III. State Law Preemption
IV. Federal Law Preemption
The Dallas/Fort Worth International Airport (DFW Airport) is owned by the cities of Dallas and Fort Worth, but is primarily located within the city limits of Grapevine, Irving and Euless, Texas.' After almost twenty-five years of acquiescence, these cities are now demanding a say in the land use control of the airport [FN 2]through newly enacted zoning ordinances. [FN 3]
This dispute was foreshadowed ten years ago when the syndicated television show The MacNeil/Lehrer Report devoted an entire show to the potential destruction of the concept of home rule cities. [FN 4] The panel of experts on the broadcast feared the emasculation of the power enjoyed by home rule cities due to a ruling by the U.S. Supreme Court which concluded that home rule cities were not immune from lawsuits challenging their police powers. [FN 5] The panel concluded that the traditional police power enjoyed by home rule cities is subject to attack wherever the potential for gain is the greatest. [FN 6] Zoning, land use controls and the operation of airports involve very high stakes and are therefore natural targets. [FN 7] Consequently, it should be no surprise that DFW Airport is challenging the host cities in court over the authority of the host cities to regulate the airport's land use. [FN 8]
This Comment will discuss the relevant issues controlling the battle over zoning control of airports located outside of the municipalities which own them, using the DFW Airport dispute as the exemplary framework. The primary issues for consideration are: (1) whether the zoning ordinances are pre-empted by state law; (2) whether they are pre-empted by federal law; and (3) whether the airport board has the authority of eminent domain to condemn streets and roads within the host cities.
Dallas/Fort Worth International Airport was built in 1974 and was the last major U.S. airport to be constructed. [FN 9] For many years before the construction of DFW Airport, the cities of Dallas and Fort Worth maintained two separate airports. [FN 10] Although the downtown centers of the two cities are approximately thirty-one miles apart, expansion of their borders throughout the years has made them almost contiguous in many places. [FN 11] In 1968, the cities agreed that the maintenance of two separate municipal airports was not in the interests of either community and decided to pool their resources to construct a new regional airport to serve the joint metropolitan area. [FN 12] DFW Airport was constructed within the city limits of Grapevine, Irving and Euless, with only a very small portion located in Fort Worth. [FN 13] All of the airline terminal buildings, as well as the only highway servicing the airport, are within Grapevine. [FN 14] Since 1974, DFW Airport has grown to become the second busiest airport in the world, [FN 15] with the number of passenger trips utilizing the airport increasing from 6.8 million in 1974, to 21 million in 1987. [FN 16]
The expansion of airline traffic has not been limited to DFW Airport, however. The number of airline trips taken by Americans more than doubled to 440 million trips between the time of DFW Airport's construction and 1987. [FN 17] Worldwide air traffic will reach two billion trips per year by the year 2000. [FN 18] Even though commercial air traffic is experiencing steady growth, it is doubtful that many new major airports will be built in the future. [FN 19] One author has predicted that future increases in airport capacity will come from expansion of existing facilities by constructing new runways, taxiways and larger apron areas. [FN 20]
Since the beginning of airline deregulation in 1978, [FN 21] a crisis atmosphere has existed in the area of airport capacity. [FN 22] The hub-and-spoke method of airline operation, which has prevailed since deregulation, places heavy demands on hub airports. [FN 23] DFW Airport is the hub airport for two major passenger air carriers, American Airlines and Delta Airlines, as well as the freight air carrier United Parcel Service. [FN 24] In 1986, the fifty busiest commercial air ports handled eighty percent of all passenger boardings. [FN 25] The growth of aviation demand at DFW Airport has led all major U.S. airports. [FN 26] Bad weather or other problems at a hub airport can cause delays which "ripple across the country. [FN 27] Currently, DFW Airport experiences more than 50,000 hours of flight delay annually. [FN 28]
Against this background, DFW Airport has undertaken a proposed $3.5 billion expansion program that includes expanding the current 5,000 foot runway 16/34 East to a length of 8,500 feet. [FN 29] A new 9,760 foot runway 16/34 West is also planned. [FN 30] The DFW Airport Board refused to submit its expansion plan to any of the host cities for approval. [FN 31]
After the DFW Airport Board announced its plans for expansion, the cities of Grapevine, Irving and Euless promptly enacted zoning ordinances requiring approval by the respective cities prior to any new airport construction within their boundaries. [FN 32] Although all of the ordinances contain procedures for governmental entities (such as Dallas and Fort Worth) to obtain immunity from the ordinances, neither the Airport Board nor Dallas or Fort Worth has sought such immunity. [FN 33]
Grapevine enacted Ordinance 89-82 [FN 34] which reclassified the zoning of DFW Airport property from a Dallas- Fort Worth International Airport district to a Governmental Use (GU) district. Grapevine Ordinance No. 89-81 [FN 35] requires that a GU zoned district can be used for an airport only after the issuance of a conditional use permit by the city.
Irving's Ordinance No. 5733 [FN 36] requires that airport property must be rezoned to an S-P-1 Site Plan or S-P-2 Site Plan district prior to an airport being "altered, created, established, extended or expanded. [FN 37] The portion of the DFW Airport property which is within the city limits of Irving is currently zoned as an "S-P Site Plan district, which is a zoning district classification that was repealed in 1973, prior to the opening of DFW Airport. [FN 38] Irving's Ordinance No. 5732 requires that any property zoned to a repealed district be governed by the requirements originally set forth for the repealed district. [FN 39] The repealed district that governed the portion of the DFW Airport property located in Irving required the use of that portion of DFW Airport to conform to a 1969 document prepared by the DFW Airport Board entitled "Airport Land Use Plan -- 2001." [FN 40] The 1969 land use plan does not include the two new runways proposed in the DFW expansion program. [FN 41]
Euless' Ordinance No. 1016 requires the issuance of a special use permit by the city before any property may be used for an airport. [FN 42] Additionally, any airport property must be located within an "1-2, Heavy Industrial" district. [FN 43] Prior to the enactment of Euless Ordinance No. 1016, the DFW Airport property was not part of any Euless zoning district. [FN 44] The DFW Airport Board filed suit against the three cities in Texas State District Court in response to what the Board perceived as a threat to their expansion plans by these zoning ordinances. [FN 45] The communities responded with countersuits against the Airport Board. [FN 46] Against this historical background, the next section of this comment analyzes the legal issues presented by this dispute.
The first question to be decided in determining if the host cities may regulate land use at DFW airport is whether the local zoning ordinances have been preempted by state law. The applicable state law is the Texas Municipal Airports Act.
The DFW Airport Board was established on September 27, 1965 under the authority of the Texas Municipal Airports Act [FN 47] (hereinafter "the Act"). [FN 48] The Act was enacted by the Texas Legislature in 1947 [FN 49] to provide broad powers to Texas municipalities for the purpose of, among other things, "providing for acquisition, construction, maintenance, operation and regulation by municipalities and counties of airports and air navigation facilities. [FN 50] Additionally, the Act provides "for the creation by counties and municipalities of airport officers, boards or agencies to administer certain powers over airports and air navigation facilities." [FN 51] The Act gives municipalities establishing airports wide-ranging powers. [FN 52]
Thus, the Act grants broad powers to municipalities engaging in the operation of airports or air navigation facilities. In addition, the Act authorizes public agencies (including municipalities) to make agreements for joint action [FN 53] and to act together through a joint airport board. [FN 54] The power of the joint board is subject to limitations which are not material to the present discussion. [FN 55]
The Act grants broad powers to a municipality in its operation of an airport, and these same powers extend to a joint Airport Board that acts on behalf of multiple constituent municipalities. [FN 56] The question of whether the host city ordinances are null under the Act turns on whether the powers granted by the Act pre-empt the powers granted to the host cities by the Texas Constitution.
There are three types of municipal incorporation in the State of Texas. [FN 57] Cities may be incorporated under the general laws of the state, by special law, or under home rule charter. [FN 58] The cities of Grapevine, Irving and Euless, as well as the cities of Dallas and Fort Worth, are Texas home rule cities. [FN 59] Home rule cities are empowered by a 1912 amendment to Article XI, Section 5 of the Texas Constitution. [FN 60] The home rule amendment provides that cities of five thousand or more inhabitants may adopt and amend city charters by a majority vote of qualified voters, subject only to the limitation that nothing in their charters may be inconsistent with the Texas Constitution or acts of the Texas Legislature. [FN 61]
Subsequent to the home rule amendment, the Legislature enacted the Enabling Act [FN 62] which enumerated thirty- four specific powers available to home rule cities. [FN 63] To remove any doubt that the enumerated powers were merely a non-exhaustive exemplary list, the Legislature went on to specifically state that the enumeration of powers should never be used to infer that a home rule city has anything less than plenary power, subject only to consistency with the State Constitution. [FN 64] It is therefore apparent that both the DFW Airport Board and the host cities are granted broad powers by separate legislative enactments. The State Law pre-emption question turns on which of these powers is superior.
1. The Texas Cases
No Texas case has specifically discussed the sovereignty issues which arise when one municipality locates its airport within the borders of another municipality. There have, however, been several cases concerning the extent and limitations of the powers of Home Rule cities. [FN 65] In City of Sweetwater v. Geron [FN 66] the validity of an ordinance by the City of Sweetwater (a home rule city) establishing a maximum age limit for all city employees was challenged by a police department employee. At the time of the enactment of the city ordinance, the Texas Firemen's and Policemen's Civil Service Act [FN 67] provided that "no rule for the removal or suspension of such employees shall be valid unless it involves one or more of the following grounds," whereupon several grounds for dismissal were set forth. [FN 68] None of the enumerated grounds were age-related. [FN 69] Additionally, section sixteen of the subject Act provided that "[n]o employees shall be suspended or dismissed by the Commission except for violation of the civil service rules, and except upon a finding by the Commission of the truth of the specific charges against such employee. [FN 70] It was admitted that the employee in question had not been charged with violation of any of the Civil Service Commission rules, nor was he removed under the procedure set forth in section 16 of the subject Act.
The court concluded that the subject Act did not prohibit the city from passing an ordinance relating to the maximum age limit for its firemen and policemen. [FN 71] The court reasoned that although the constitutional grant of broad powers to home rule cities can be limited by legislative acts, the Legislature should make its limiting intention "appear with unmistakable clarity." [FN 72] The subject Act was an example of state pre-emption, but only in the field of disciplinary removal of firemen and policemen. Because the subject Act was silent on the matter of maximum age limits, it could not be said to express the Legislature's clear intention to pre-empt a home rule city's broad power to regulate in this area. [FN 73]
Glass v. Smith, [FN 74] another Texas Supreme Court case, involves the limitation on the power of a Home Rule city by the same Civil Service Act involved in City of Sweetwater. [FN 75]In Glass, employees of the City of Austin had called for an initiative election to change the classifications of policemen and firemen under the subject Act. The city council refused to call an initiative election, believing that it had no authority to vary the terms in the subject Act. The court ordered that the election be held [FN 76] and stated that "[i]f the Legislature had intended that the Civil Service Commission should supplant the City Council in the exercise of any legislative power it could and should have made that intent known in clear and unmistakable language. [FN 77]
Another Texas case dealing with pre-emption of municipal home rule power by state law is Lower Colorado River Authority v. City of San Marcos [FN 78] in which San Marcos, a home rule city, passed an ordinance regulating retail electric rates charged within the city. The ordinance was in response to a rate increase by the Lower Colorado River Authority (LCRA). The LCRA is a conservation and reclamation district created under the authority of Article XVI, Section 59, of the Texas Constitution and authorized to develop and generate water power and electric energy within its boundaries. [FN 79] The District is also authorized to distribute and sell the same within and without its boundaries. San Marcos was not within the boundaries of the LRCA district.
The court reiterated the rule established in Forwood v. City of Taylor [FN 80] that the power of home rule city is plenary and that "it is necessary to look to the acts of the Legislature not for grants of power to such cities but only for limitations on their powers. [FN 81] The question then became whether Section 8 of the LCRA Act [FN 82] constituted a legislative limitation of the Home Rule powers enjoyed by San Marcos. [FN 83] The court stated that the Home Rule power may be limited by a general law either by express or implied limitation. [FN 84] However, a limitation will not be implied unless the wording used by the Legislature is "clear and compelling to that end. [FN 85] After reserving to the State the power to regulate rates, the LCRA Act contains the proviso that the State will not regulate rates in such a way as to prejudice bondholders in the LCRA.86 No other limitation was found to be clearly compelled by the wording of the LCRA Act. [FN 87] Since all powers of the State are delegated to Home Rule cities, San Marcos was authorized to regulate rates charged by the LCRA subject only to the single limitation contained in the LCRA Act. [FN 88]
In a vigorous dissent, Justice McGee argued that not only can power be withdrawn from a home rule city by an express limitation, but it can also be limited if the provisions of the general law are inconsistent with the power sought to be exercised by the home rule city. [FN 89] Therefore, it is not possible for the City of San Marcos to exercise any power inconsistent with the LCRA Act. [FN 90] It thus follows that if the LCRA Act authorizes the LCRA to establish and collect rates, the regulation of rates by San Marcos would be inconsistent with that authority, and therefore void. [FN 91] This seems to be a realistic approach to divining the intentions of the Legislature in the granting of power under a statute, however it has yet to become the law of Texas.
In Forwood v. City of Taylor [FN 92] the Texas Supreme Court made it clear that a home rule city's power would not be encroached upon by every act of the Legislature. [FN 93] In Forwood the city of Taylor (a Home Rule city) had formed a nine member Board of Equalization whose duties were to equalize the taxable value of all property located within the city. Forwood (a local resident) and others challenged that the ordinance providing for a nine member Board of Equalization was void due to its conflict with Article 1048 of the Civil Statutes, [FN 94] which provides for the formation of three member Boards of Equalization. The court held the statute inapplicable because the city of Taylor was a home rule city and the subject statute specifically purported to apply to cities and towns "incorporated under the General Laws. [FN 95] The court made it clear that although the Legislature has the power to limit the authority of home rule cities, this legislative power will not be construed liberally. [FN 96]
Another case, City of Lucas v. North Texas Municipal Water District, [FN 97] involved an injunction action by the city of Lucas to prevent the Water District (formed by the cities of Plano, Richardson, Allen and McKinney) from constructing a 403-acre wastewater treatment plant partly within the city of Lucas' corporate limits and partly within its extraterritorial jurisdiction. [FN 98] The city sought to force the Water District to comply with applicable city ordinances before beginning with construction. [FN 99]
The Water District was formed pursuant to the District Act [FN 100] which authorizes the formation of Municipal Water Districts for the management of waste. [FN 101] Section 27(1) of the District Act specifically provides that in the event of a conflict or inconsistency between the provisions of Section 27 and any other law, Section 27 is to be controlling. [FN 102] The Water District argued that the city ordinances were pre-empted by the District Act and thus void because they sought to prevent the Water District from constructing the treatment plant within the city. [FN 103] The city asserted that the ordinances in question were reasonable attempts to protect the health and welfare of the city's residents by insuring that the Water District's operations were conducted in a safe manner and therefore the ordinances were not inconsistent with the District Act. [FN 104] The court held that reasonable city ordinances that provide for the health and welfare of the city's residents which are otherwise authorized by law, do not conflict with and are not inconsistent with the District Act. [FN 105]
Therefore, a general law city, which does not enjoy the plenary power of a home rule city, may nevertheless enact ordinances which control the actions of home rule cities operating within its boundaries. As long as those ordinances are reasonably related to providing for the health and welfare of the city's. residents, they will not be found to be pre-empted by the legislative act authorizing the home rule cities to operate within its borders. [FN 106]
A reasonable action rule similar to that of City of Lucas was applied in City of Addison v. Dallas Independent School District [FN 107], but the opposite result obtained. [FN 108] The Dallas Independent School District (DISD) decided to establish a school bus compound to include parking facilities for sixty school buses, a refueling and repair terminal and fuel storage tanks. The compound was to be located within the city of Addison on property already owned by the DISD. The proposed use violated a zoning ordinance of the city of Addison, and the DISD brought suit to enjoin the enforcement of the ordinance.
The court's decision was based on the fact that the Legislature had granted particular powers to both the city and the DISD, and the reasonable exercise of those powers must not conflict in order to give effect to both grants of power. [FN 109] Here, the DISD's decision to locate its school facility was found not to be unreasonable based on a previous Texas Supreme Court decision [FN 110] which had ruled that it was not a reasonable exercise of municipal zoning power to attempt to exclude schools from residential districts. [FN 111]
The distinction, therefore, between City of Lucas and City of Addison is in the burden of proof. In City of Lucas, it fell upon the Water District to show that the city's zoning ordinance was an unreasonable exercise of its police power. [FN 112] In City of Addison, the Texas Supreme Court had previously determined that the school district's actions were reasonable per se, so it was therefore up to the city to show that its attempted use of zoning power to keep the school out was reasonable. [FN 113]
The use of the reasonable action test is most clearly set forth in Wagstaff v. City of Groves. [FN 114] In Wagstaff, the plaintiff was injured when he fell from a ladder set up for him by employees of the city. Two and one-half months later, Wagstaff discovered that he had a ruptured disc in his back and underwent surgery. The city denied his workman's compensation claim because the charter of the city contained a provision requiring written notice be given to the city within sixty days of an injury as a condition precedent for the recovery of damages for personal injury. The city of Groves is a home rule city. Wagstaff sought to invalidate the city's charter provision, claiming that it was pre-empted by the Workmen's Compensation Act.
The court utilized a rule of construction set forth in City of Beaumont v. Fall, [FN 115] which mandated that, if possible, a construction should be given to a general law and a city ordinance which will leave both intact." [FN 116] A similar rule was set forth in Cole v. State ex rel. Cobolini, [FN 117] which stated that it was the duty of the court to reconcile two seemingly repugnant laws if at all possible. [FN 118] The Wagstaff court ruled that a reasonable construction would leave both the statute and the charter provision in effect. [FN 119] The court found that it was not inconsistent with the operation of the Workmen's Compensation Act to require a complainant to give the notice of injury required by the charter provision. [FN 120]
To summarize the previous three cases, the court will attempt to find a reasonable construction of both a Legislative Act and a local law in order that both of them may be found to be operative and not inconsistent, since by definition, home rule charters and ordinances do not contain anything repugnant to the Texas Constitution or the general laws enacted by the Texas Legislature. [FN 121]
Finally, in MJR's Fare of Dallas, Inc. v. City of Dallas, [FN 122] several businesses in the city which featured topless dancers sought to invalidate a proposed Dallas zoning ordinance [FN 123] which sought to add the classification Sexually OrientedBusinesses to the city's comprehensive zoning ordinance. The proposed ordinance provided for licensing and distance restrictions which would be applicable to businesses such as the appellants'. [FN 124] The appellants alleged, among other things, that prior Texas law already provided similar regulation and thus pre-empted the ordinance. [FN 125]
Specifically, the appellants argued that the Zoning Enabling Acts [FN 126] grant a city the power to divide itself into zoning districts and to regulate building use inside of those districts. [FN 127] Also, the Zoning Enabling Acts fail to specifically provide for a city to regulate distance restrictions between buildings based on the type of business housed therein. [FN 128] Furthermore, the Alcoholic Beverage Code [FN 129] regulates location restrictions regarding businesses which serve alcoholic beverages. [FN 130] Appellants therefore asserted that Dallas' attempt to use its zoning power to impose distance restrictions between sexually oriented businesses conflicts with these State statutes and thus violates the Texas Constitution. [FN 131]
The court held that Dallas did indeed have the power to enact ordinances that seek to protect the public safety and to promote the general welfare of the city, this power being conferred upon all Texas home rule cities. [FN 132] First, it was held that Dallas, as a home rule city, need not look to the Zoning Enabling Acts for a grant of power to regulate distances between businesses, since home rule cities have plenary power and need not look to the general laws of the state for grants of power, but only for restrictions to their power. [FN 133] Because the Zoning Enabling Acts were silent on the issue of distance regulation, they did not preclude the city from enacting a zoning ordinance providing for such. [FN 134] The court noted that the Alcoholic Beverage code contains provisions that grant power to a city to place limits on the sale of alcoholic beverages. [FN 135] Because Dallas' proposed ordinance sought only to regulate a secondary activity and not the sale of alcohol, the court found no conflict to exist between the ordinance and the Texas Alcoholic Beverage Code. [FN 136] The court, therefore, once again applied the concepts of plenary home rule power in light of statutory construction aimed at discerning specific limitations of that power.
a. Texas Caselaw Summary
From the foregoing materials, it is clear that Texas courts have built up a sizable amount of precedent for determining just what powers home rule cities have and how such powers may be limited by the Legislature. This body of law may be applied to the DFW Airport controversy in lieu of specific caselaw dealing with limitations of airport land use by host cities. The following is a summary of the legal rules developed in the preceding cases.
Because Texas home rule cities have been given plenary power by the Texas Constitution to regulate activities within their borders, [FN 137] a legislative act which intends to limit the powers available to a home rule city must make such limiting intention appear within the act "with unmistakable clarity" [FN 138] and in "clear and unmistakable language." [FN 139] In the absence of an express limitation of Home Rule power, a legislative intent to diminish such power will not be implied unless the wording used by the Legislature is "clear and compelling to that end." [FN 140] A home rule city's power will not be encroached upon by every act of the Legislature. [FN 141] Also, if a legislative act pre-empts in one area of a particular field, it does not follow that the act pre-empts the entire field. [FN 142]
Even a legislative act which specifically authorizes one city to act within the borders of another city will not preclude the host city from enacting ordinances in conflict with the act, so long as the ordinances are reasonably related to providing for the health and welfare of the host city's residents. [FN 143] This is the so-called "reasonable action" rule. The basis for the rule is that the Legislature has given grants of power to both parties, and the reasonable exercise of those powers must not conflict in order to give effect to both grants of power. [FN 144] A "general law and a city ordinance will not be held repugnant to each other if any reasonable construction leaving both in effect can be reached." [FN 145] This results from the fact that, by definition, home rule ordinances do not contain anything repugnant to the Texas Constitution or the General Laws enacted by the Legislature. [FN 146]
Therefore, Texas home rule cities have plenary power to regulate activities within their borders. Any legislative act intending to limit this power must do so either expressly or impliedly with clear and compelling language. Even when the legislative act intends to limit the home rule power, the home rule city still maintains some discretion in the reasonable regulation for the health and welfare of its citizens.
b. Application of Texas Caselaw to the DFW Airport Controversy
The DFW Airport Board, in establishing, running and attempting to expand the airport, is acting pursuant to power granted to such organizations by the Texas Legislature in the Municipal Airports Act. [FN 147] The host cities of Grapevine, Irving and Euless, in establishing zoning ordinances which seek to regulate land use within their borders, are acting pursuant to a legislative grant of authority delegating all powers of the State of Texas to home rule cities. [FN 148] In order that neither piece of legislation be found to be repugnant to the other, it is necessary to find a reasonable construction for each that will give effect to both of them. [FN 149]
Under the Texas Municipal Airports Act, the DFW Airport Board is specifically authorized to, among other things, enlarge and improve airports and air navigation facilities either within or without the territorial limits of the municipalities composing the Board (i.e. Dallas and Fort Worth). [FN 150] Such enlargement and improvement is precisely what the Board is seeking to do with the proposed expansion of DFW Airport. The Board plans to enlarge and improve the airport by extending an existing runway and building a new runway, as well as several support buildings. [FN 151] The expansion construction will take place wholly outside the territorial limits of Dallas and Fort Worth and wholly within the territorial limits of the host cities. [FN 152]
When a municipality (e.g. Dallas or Fort Worth) operates an airport within the territorial limits of another municipality (e.g. Irving, Grapevine or Euless), the Act provides that an airport located outside the limits of an operator's municipality will be under the jurisdiction of that municipality. [FN 153] The Board can therefore make a case for its position that the Act expressly grants jurisdiction over the Airport to the Board.
This position, however, is subject to attack on several grounds. First, the specific language of the statute may be read to mean that only the charging of a license fee or occupation tax for operation of the Airport is prohibited. [FN 154] The Act is silent with regard to the pre-emption of Host City zoning power. Such pre-emption has not been granted by the Legislature with "clear and unmistakable language. [FN 155] In fact, a Texas federal court has already reached this same conclusion when construing the same statute in another case. [FN 156] That court concluded that "[the] problem with the argument is that article 46d7 does not prohibit Irving from exercising any authority at the airport; it prohibits only the charging of a license fee or occupation tax." [FN 157]
Second, the Act contains an exception to the grant of jurisdiction to the Board, namely that the Board shall still be "subject to Federal and State laws, rules and regulations. [FN 158] Since a home rule city has all of the power of the State which has not been abrogated by the Legislature, [FN 159] this reservation of the power of regulation to the State can be reasonably read to include the zoning power that the State has delegated to each of the host cities over lands within their territorial limits.
Finally, even if the Act is read to grant the Board exclusive jurisdiction over Airport property, the reasonable exercise of the Host Cities' zoning powers for the health and welfare of their citizens would still be given effect. [FN 160] There has been no allegation by the Board that the subject zoning ordinances are unreasonable insofar as their design to protect the health and safety of the residents of the host cities. [FN 161]
Therefore, it seems that the pertinent caselaw from the Texas courts requires that the zoning ordinances of the host cities be given effect. There is a reasonable interpretation of both the zoning ordinances and the Texas Municipal Airports Act which leave both in effect, therefore that interpretation is to be preferred. The host city zoning ordinances do not appear to be pre-empted by state law.
2. Exemplary Cases from Other Jurisdictions
Although there appears to be ample caselaw in Texas dealing with the powers of home rule cities, the limitations thereof and the problems of statutory construction to resolve conflicts with exercises of home rule power to enable a Texas court to decide upon the conflict between DFW Airport and the host cities, it is at least instructive to examine the outcomes of similar conflicts in other jurisdictions. Many jurisdictions have previously dealt with attempts by airport proprietor cities to invalidate zoning ordinances of neighboring cities.
One such case is Aviation Services, Inc. v. Board of Adjustment of Township of Hanover, [FN 162] decided by the New Jersey Supreme Court. In Aviation Services, the subject airport was owned by the Town of Morristown but was located on a 235-acre tract of land within the boundary of the Township of Hanover. After five years of airport operation, the Township of Hanover enacted a zoning ordinance which placed the airport property within a Residence B zone, at which time the airport became a non-conforming use.
The appellant in this case leased an airport building from the Town of Morristown. When the appellant sought a building permit from the Township of Hanover to enlarge appellant's maintenance service and flight school building, the application was denied. The sole issue in the case was whether the Morristown Municipal Airport was subject to the zoning ordinance of the Township of Hanover. [FN 163]
The State of New Jersey had a 1929 statute very similar to the Texas Municipal Airports Act. [FN 164] The court stated that an agency or authority which occupies a superior position in the governmental hierarchy is immune from regulation by an authority below it in the hierarchy, absent express statutory language to the contrary. [FN 165] In the instant case, however, neither governmental unit was superior to the other (as is the case with Dallas, Fort Worth, Grapevine, Irving and Euless). In such a case, the court concluded that no governmental immunity exists unless the Legislative provision which the municipality is operating under bestows such an immunity. [FN 166]
The court found such immunity from the absence of any language in the act limiting the undertaking of a municipal airport, either within or without the borders of the municipality, and also in the bestowal of the power of eminent domain to the proprietor municipality. [FN 167] These factors were found to sufficiently reflect a legislative intent of immunity from zoning power for proprietor municipalities in the acquisition and maintenance of airport facilities. [FN 168] The court found itself incumbent to lend a liberal construction to the Act in order to insure that the benefits which the Legislature intended to provide to municipalities which provide airport facilities are indeed conferred upon them. [FN 169]
Significantly, the New Jersey court quoted at length from the Ohio Court of Common Pleas as a basis for its decision, concluding that zoning ordinances are subject to a hierarchy of governmental entity pre-emption.' 70 The New Jersey court thus recognized the ability of a superior governmental entity to control the land use of an inferior governmental entity, and of any governmental entity to control the land use of a private citizen for the public good. But the court rejected the notion that the land use of one governmental entity could be controlled by another absent express legislative empowerment to do so.
Another case which is on point is also from New Jersey and involves the same litigants. Town of Morristown v. Township of Hanover [FN 171] was described by the author of the opinion as "another round in the never-ending struggle between the Town of Morristown and the Township of Hanover relating to the use of the Morristown Municipal Airport owned and operated by Morristown on its lands in Hanover. [FN 172] The litigious history of these two cities over the airport can be traced in no fewer than six reported cases. [FN 173] In the present case, Morristown sued to invalidate an amendment [FN 174] to the zoning ordinance of Hanover which sought to limit the permitted uses of the lands in the Airport District.
The New Jersey court held that the New Jersey Airports Act [FN 175] "establishes an island of immunity from zoning regulations for property operated and used for the primary purpose of a municipal airport or for uses which are reasonably accessory or incidental to that primary purpose." [FN 176] The court determined that the amended ordinance invaded this immunity by prohibiting uses which were appropriate for the operation of an airport. [FN 177] A comparison of the language of the New Jersey Airports Act and the Texas Municipal Airports Act reveals that the two statutes are remarkably similar. [FN 178] This similarity would provide a sound basis for the Texas courts to adopt the New Jersey view if they so chose.
The Supreme Court of Michigan has arrived at the same conclusion in a case involving another very similar statute. In Petition of City of Detroit, [FN 179] the Township of Warren sought to block the condemnation of land by the city of Detroit for construction and operation of an airport. The zoning ordinance of Warren Township prohibited "the use or occupancy of any lands or premises for an airport" in the portion of the Township where the proposed airport was to be constructed. [FN 180]
The Michigan court found the zoning ordinance to be void and unenforceable due to its direct conflict with the Michigan Airports Act. [FN 181] Because this statute authorized the city to acquire land for operation of an airport, either within or without the city limits, the township ordinance prohibiting the use of land in the zoning district for an airport was void. [FN 182]
Finally, in City of Heath v. Licking County Regional Airport Authority, [FN 183] an action was brought in the Ohio Court of Common Pleas by the city of Heath to enjoin the expansion of a regional airport located within its city limits. The city attempted, among other things, to prevent the regional airport from expanding onto land already owned by the Regional Airport Authority and also to require approval by the city planning commission prior to any expansion.
The Ohio court began its discussion by quoting the general rule that zoning ordinances may not restrict or limit the use of public property for public purposes. [FN 184] The court recognized that Chapter 308 of the Ohio Revised Code, which details the method of creating regional airport authorities, indicates the public nature of such authorities. [FN 185] Such public nature stems from the fact that the regional airport authority is delegated the same powers the governing counties might have exercised, its personnel are considered public employees, and the monies for its operation come from the county general fund. [FN 186] From these facts, the court concluded that since the regional airport authority had been delegated by statute to use the power of eminent domain to acquire land, the use of that land for public airport purposes could not be prevented by zoning ordinances of the host municipality. [FN 187]
On the second issue of whether the Regional Airport Authority was required to secure approval from the city planning commission prior to exercising its expansion program, the court looked to the statute which set forth the powers and duties of city planning commissions. [FN 188] The Ohio court found it significant that the statute specifically required recommendation from the planning commission for the location of aviation fields but did not include such aviation fields in its list of facilities which require prior approval by the planning commission before construction.' 8 9 The Court therefore held that the Regional Airport Authority did not have to secure approval from the city planning commission before expanding the airport. [FN 190]
a. Foreign Jurisdiction Caselaw Summary
From this brief survey of relevant decisions from foreign jurisdictions, it is apparent that several other courts have dealt with attempts by host municipalities to enact ordinances to control the land use of airport lands within their boundaries but owned by other municipalities. [FN 191] In fact, in light of the voluminous caselaw on this subject in other jurisdictions, it seems incredible that this issue has never before been decided in Texas. The following is a brief summary of the logic and rules developed in the representative cases selected for inclusion herein.
Although not dispositive of the Texas case that is the subject of this comment, it is instructive to note that many foreign jurisdictions have expressly adopted a theory of a hierarchy of governmental entity pre-emption. Under this theory, the rights of municipalities that occupy a lower position in the governmental hierarchy must yield to the rights of municipalities that occupy a superior position. [FN 192] In the case where the litigants occupy the same position in the governmental entity hierarchy, the foreign municipality has no immunity from the zoning ordinances of the host city unless such immunity is conferred upon the foreign municipality by express statutory language in the statute that the foreign municipality is operating under. [FN 193] Such immunity may be inferred from the absence of any limiting language in the statute authorizing the undertaking, as well as the bestowal of the power of eminent domain to the proprieter municipality. [FN 194]
In such situations, courts are likely to give a liberal construction to the statutes under consideration in order to insure that whatever benefits the Legislature intended to confer upon municipalities which undertake to provide airport services are indeed conferred upon them. [FN 195]
Another significant finding from the foreign jurisdictions is the notion that land use and zoning laws are primarily intended to restrict the rights of private property owners when such restriction is in the interest of the general welfare of the municipality's residents as a whole. [FN 196] Therefore, municipal use of zoning ordinances to restrict the utilization of public property is not favored by the courts. [FN 197] Thus, courts have rejected the notion that the land use of one governmental entity could be controlled by another absent express legislative empowerment, because land use by a governmental entity is inherently for public purposes.
In a similar vein, if the court relies upon a legislative grant of immunity from zoning ordinances to insulate the proprietor municipality from control by the host municipality, even land uses reasonably related or otherwise incidental to the primary purpose of the empowering legislative act qualify for such immunity. [FN 198] Therefore, zoning ordinances that prohibit uses appropriate for airport operation invade the Legislature's grant of immunity and are void. [FN 199] This idea has been applied liberally in some jurisdictions, even to the point of concluding that if a statute authorizes a city to acquire land for the operation of an airport, either within or without its territorial limits, then a zoning ordinance prohibiting the use of such land for an airport is void. [FN 200]
In cases where the legislative act empowering proprietor municipalities also grants the power of eminent domain to acquire land for airport purposes, the use of such land for public airport purposes cannot be prevented by zoning ordinances of the host municipality. [FN 201] Finally, in keeping with the apparent willingness of courts to construe statutes liberally in order to prevent restrictions upon airport establishment, operation, and expansion, at least one court has found that city planning commission approval was not necessary prior to airport construction because airports and air fields were not specifically listed in the statute empowering the city planning commission.
Therefore, foreign jurisdictions have developed a notion of the governmental entity hierarchy, in which municipalities that are lower in the hierarchy must yield to the rights of those that are superior. When the municipalities are on even footing, the host municipality may control the land use of the proprietor municipality unless immunity has been granted to the proprietor municipality by the legislative act under which it operates. Such immunity is generally liberally inferred. There is a presumption that zoning and land use ordinances that attempt to prohibit publicly owned land from being used for public purposes are void. Such presumption also applies to land uses which are incidental or otherwise reasonably related to statutorily empowered land use. Also, a grant of the power of eminent domain has been seen as a prohibition against its limitation by zoning ordinances. Finally, if a city planning commission is statutorily authorized to require its approval before construction upon land within its jurisdiction, airports and air fields have been found to be exempt from such approval unless the authorizing statute specifically lists them among its subject classifications.
b. Application of Foreign Caselaw to the DFW Airport Controversy
The survey of caselaw from foreign jurisdictions presented herein is particularly relevant to the present litigation. This is because the Texas Municipal Airports Act [FN 203] provides that the Act is to be construed, if possible, to reconcile it with other laws of Texas, the other states, and the federal government that deal with municipal airports. [FN 204]
As previously noted, the DFW Airport Board, in establishing, running and attempting to expand the airport, is acting pursuant to power granted by the Texas Legislature in the Municipal Airports Act. [FN 205] The Act grants the DFW Airport Board the same powers that Dallas and Fort Worth have if acting alone. Therefore, the DFW Airport Board occupies the same position in the governmental hierarchy as Dallas and Fort Worth. [FN 206] That position, however, does not give the DFW Airport Board any advantage in the present case because all of the parties involved are incorporated by their charters as Texas Home Rule cities. Therefore all five of the litigants occupy the same position in the governmental entity hierarchy even though Dallas and Fort Worth are vastly more populous than Irving, Grapevine and Euless.
Where, as here, the litigants occupy the same position in the governmental entity hierarchy, immunity from land use control may be granted to the foreign municipality by express language in the Act. [FN 207] In the present case, the Act is silent. [FN 208] However, this fact is balanced by the absence of any limiting language in the Act, which implies that the powers conferred may not be emasculated by local ordinance. [FN 209]
Another factor which may favor the DFW Airport Board is that bestowal of eminent domain to the proprietor municipality may imply immunity from host municipality zoning restrictions. Dallas and Fort Worth, and therefore the DFW Airport Board, have been granted the power of eminent domain. [FN 210] However, this grant of eminent domain carries less weight because it is not made within the statute granting the power to establish an airport (the Act) and also because the language "inside or outside the municipality" [FN 211] does not positively grant the authority when the municipality is operating within the boundaries of another municipality. Because courts are likely to give a liberal construction to the statutes under consideration in order to insure that whatever benefits that the Legislature intended to confer upon municipalities that undertake to provide airport services are indeed conferred upon them, [FN 212] it is plausible that a court that is sympathetic to the DFW Airport Board could find enough justification from these facts to grant immunity.
Another factor in favor of the DFW Airport Board is that foreign jurisdictions have expressed the opinion that zoning laws are for restrictions on private property for the public good and are therefore void when used to restrict public property used for public purposes. [FN 213] Therefore, some foreign jurisdictions would consider the use of zoning ordinances by the host cities to restrict land use at DFW Airport void. This immunity would also extend to land uses reasonably related or otherwise incidental to airport operation. [FN 214]
In light of the number of decisions from foreign jurisdictions which uphold the right of one municipality to operate an airport free from restriction in another municipality, it is perhaps not surprising that the DFW Airport Board seems to have the better case when rules from these foreign jurisdictions are applied to the present facts. But the converse is also true: in light of the strong Texas tradition to grant broad powers to home rule cities within their own borders, it is not surprising that the host cities appear to have a stronger case when the rules developed in Texas courts are applied. It is significant to note that the trial court opinion in the present DFW Airport case did not refer to a single non-Texas case when discussing the issue of state law pre-emption. [FN 215]
A. The Federal Preemption Standard
As a general principle, the federal system of government in the United States allows sovereign states to freely regulate their residents and the land within their borders using the general police powers reserved to the states. In Texas, this power has been delegated to home rule cities with respect to action within their own borders. [FN 216] However, the federal government, acting under authority of the Supremacy Clause of the U.S. Constitution, may choose to pre-empt state law in an area in which it has jurisdiction. [FN 217]
Generally, there are three situations in which state law is pre-empted by federal law. [FN 218] First, Congress may explicitly define within the statute the extent of state law pre-emption. [FN 219] Because federal pre-emption is entirely a question of the intent of Congress when acting within its powers, [FN 220] the Supreme Court has made it clear that "when Congress has made its intent known through explicit statutory language, the courts' task is an easy one." [FN 221]
Second, federal pre-emption may be found in an area where Congress has failed to make an express declaration, if Congress is regulating a field that it intended the federal government to occupy exclusively. [FN 222] Congressional intent to pre-empt can be inferred from a "scheme of federal regulation ... so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it," [FN 223] or where a congressional act "touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." [FN 224] Although the Supreme Court has found federal pre-emption by inference where it is adequately supported by federal statutory and regulatory schemes, [FN 225] it has stated that where "the field which Congress is said to have preempted [regulates areas that] have been traditionally occupied by the states, [FN 226] congressional intent of federal pre-emption must be " 'clear and manifest.' " [FN 227] On the other hand, a distinctive federal interest in a particular field is a significant factor in establishing pre-emption in that field. [FN 228]
Finally, a state law is always pre-empted to the extent that it is in conflict with federal law. The court will therefore find pre-emption "where it is impossible for a private party to comply with both state and federal requirements." [FN 229] Similarly pre-emption will also be found where a state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. [FN 230] The key inquiry, therefore, in any determination of pre-emption, is always whether Congress intended that federal regulation supersede state law. [FN 231] While Congress has not expressly pre-empted all regulation within the air industry, it is beyond dispute that it has certainly promulgated, over the last thirty years, vast quantities of statutory regulation in the area.
Beginning in 1958, Congress began passing a series of wide-ranging legislation in the area of air transportation. [FN 232] The underlying theme of most of Congress' regulation has been to provide some type of uniformity for the national air traffic community. Early on, Congress recognized that the national character of commercial airline operations, such as connecting flights and hub operations, meant that restrictive local regulations in one area of the country can seriously and directly affect air travel throughout the nation.
The Federal Aviation Act of 1958 [FN 233] grants exclusive and complete authority over the nation's navigable airspace to the Federal Aviation Administration (FAA). [FN 234] The Federal Aviation Act also gives the FAA the authority to regulate air navigation facilities; certify aircraft, airmen, commercial air carriers, and airports; and regulate the design and manufacture of aircraft. [FN 235] It is clear that with the Federal Aviation Act of 1958, Congress intended to reserve a large portion of aviation regulation to the federal government. Congress realized that air travel involved serious safety concerns and that the development of national standards were in the best interests of the nation.
However, among all of the particularly defined areas which Congress singled out for exclusive regulation by the FAA, land use regulation of airport property is conspicuously absent. It seems fair to argue that Congress did not intend to exert its influence over the entire aviation field because it went to such great pains to detail exactly which areas it was carving out for FAA control. This conclusion is evidenced by the testimony of Senator Michael Monroney, the Federal Aviation Act's author, during Senate hearings on the Act. Senator Monroney testified that the Act gave the FAA control over the navigable airspace, but he noted that the federal government was exerting no control over ground space, and that "[c]ertainly that is the intent of the act." [FN 236]
One area that Congress seems to have left no doubt as to its intent to pre-empt state law is in the area of aircraft noise regulation. [FN 237] The Aircraft Noise Abatement Act of 1968 [FN 238] gives authority over the regulation of aircraft noise emissions to the FAA, which is directed to consult with the Environmental Protection Agency (the "EPA"). [FN 239] Further regulation of aircraft noise was provided by Congress in the Noise Control Act of 1972. [FN 240] The Supreme Court, in City of Burbank v. Lockheed Air Terminal [FN 241] determined that these regulations by Congress of aircraft noise were intended to pre-empt state and local regulation. [FN 242] The Court made such pre-emption clear when it stated that "[i]t is the pervasive nature of the scheme of federal regulation of aircraft noise that leads us to conclude that there is pre-emption." [FN 243] Although this seems to be a clear finding of federal pre-emption, the case is not really that clear. The Aviation Safety and Noise Abatement Act of 1979 was passed subsequent to the Burbank decision and seems to contain express language by Congress that some portion of aircraft noise regulation is still retained by the states: "control of compatible land use around airports is a key tool in limiting the number of citizens exposed to unacceptable noise impacts, and should remain exclusively in the control of State and local governments. [FN 244] The FAA, in formulating its regulations implementing the Aviation Safety and Noise Abatement Act of 1979 expressly stated that local land use regulation was not preempted. [FN 245] Congress may have moved further toward explicit pre-emption, however, with the recently enacted Airport Noise and Capacity Act of 1990246 and regulations promulgated pursuant thereto. [FN 247] The Airport Noise and Capacity Act of 1990 details several Congressional findings which point to a strong national interest in federal control of aircraft noise. [FN 248] At the same time, however, the same Act also includes language that seems to leave room for local regulation.249 Determination of the status of federal pre-emption in the area of aircraft noise regulation in light of the congressional acts passed since Burbank will have to wait until a similar challenge is again brought before the courts.
Another area that Congress has been active in regulating is the expansion of the nation's airport capacity. This is an area of regulation that has particular bearing upon the litigation that is the subject of this Comment. In 1970, Congress enacted the Airport and Airway Development Act. [FN 250] This act required the Secretary of Transportation to oversee the development of public airports and also gave the Secretary the power to give grants to state and local governments for development of public airports. [FN 251] These grants were made in return for the federal government being given extensive control over the selection of the airport's location, layout, design and environmental compatibility. [FN 252] These grants were funded by an Airport and Airway Trust Fund. [FN 253] The Airport and Airway Development Act of 1970 was eventually replaced by the Airport and Airway Improvement Act of 1982, [FN 254] which was further amended by the Airport and Airway Safety and Capacity Expansion Act of 1987. [FN 255] These federal regulations require that any airport construction or expansion must comply with a myriad of environmental regulations under the National Environmental Policy Act of 1969 (NEPA), [FN 256] including the filing of an environmental impact statement. [FN 257]
While none of these congressional acts explicitly state that the federal government intends to pre-empt this area of the law, they do present a credible argument that, taken as a whole, they represent an imposing amount of federal regulation in an area which is uniquely suited to control under Congress' Commerce clause power over interstate commerce.
The federal regulations cited in the preceding section clearly mandate that state and local governments may not attempt to allocate or control airspace, impose local rules for air traffic, create safety regulations concerning the operation of aircraft, or prohibit or mandate particular flight patterns. This prohibition is mandated because such local laws would directly conflict with federal regulation and would thus be pre-empted. [FN 258] But the case against local regulation of land use at a public airport is not as clearly pre-empted by federal law. In fact, Chief Justice Rehnquist, in his dissenting opinion in City of Burbank v. Lockheed Air Terminal Inc. [FN 259] determined that the majority opinion did not stand for the proposition that local governments were pre-empted from using their police powers to regulate land use at public airports. [FN 260] Many other judicial decisions since Burbank have supported this view. [FN 261] It therefore seems safe to say that the zoning ordinances at issue here [FN 262] do not involve subject matter which has been federally preempted by Congress.
The conclusion reached by this author after the foregoing analysis is the same as that reached by the trial court judge. [FN 263] The pertinent caselaw from the Texas courts requires that the zoning ordinances of the host cities be given effect. There is a reasonable interpretation of both the zoning ordinances and the Texas Municipal Airports Act which will leave both in effect; therefore that interpretation is to be preferred. The host city zoning ordinances do not appear to be pre-empted by state law. Additionally, the zoning ordinances at issue here [FN 264]do not appear to involve subject matter which has been federally preempted by Congress, because they do not involve local regulation of the navigable airspace or aircraft safety.
1. Continental Bus Sys., Inc. v. City of Dallas, 386 F. Supp. 359, 361 (N.D. Tex. 1974).
2. D/FW Board Seeks To Block Local Restrictions On Expansion, AIRPORTS, Apr. 17, 1990, at 168.
3. Grapevine, Tex., Ordinance 89-81, 89-82 (Dec. 21, 1989); Irving, Tex., Ordinance 5732, 5733 (Jan. 4, 1992); Euless, Tex., Ordinance 1016 (Nov. 28, 1989).
4. The MacNeil/Lehrer Report: Taking Cities to Court (Educational Broadcasting television broadcast, May 25, 1982). For a definition of Home Rule city, see infra note 61 and accompanying text.
8. See Dallas/Fort Worth Int'l Airport Bd. v. City of Irving, Texas, appeal docketed, No. 05-92-00559-CV (Tex. App.-Dallas) (appeal by Airport Board from grant of summary judgment to the host cities in Dallas/Fort Worth Int'l Airport Bd. v. City of Irving, Texas, No. 90-4298-I (Dist. Ct. of Dallas County, 162nd Judicial Dist. of Texas, Oct. 8, 1991)).
9. Carole A. Shifrin, Officials Hope Capacity Crisis Will Spur Expansion of Airports, AVIATION WK. & SPACE TECH., Nov. 9, 1987, at 83.
10. City of Dallas v. Southwest Airlines Co., 371 F. Supp 1015, 1019 (N.D. Tex. 1973), aff'd, 494 F.2d 773 (5th Cir. 1977), cert. denied, 419 U.S. 1079 (1977).
12. Id. at 1019-20.
13. Continental Bus Sys., Inc. v. City of Dallas, 386 F. Supp. 359, 361 (N.D. Tex. 1974).
15. Steven R. Reed, FAA Backs Impact Statement For DFW Airport Expansion, HOUS. CHRON., Jan. 7, 1992, at A11.
16. Brief for Appellant at 5, Dallas/Fort Worth Int'l Airport Bd. v. City of Irving, Texas, appeal docketed, (Tex. App.--Dallas) No. 05-92-00559-CV [hereinafter Appellant's Brief].
17. Shifrin, supra note 9, at 83.
21. Appellant's Brief, supra note 16, at 5.
22. Shifrin, supra note 9, at 83.
24. Appellant's Brief, supra note 16, at 4.
25. Shifrin, supra note 9, at 83.
26. Appellant's Brief, supra note 16, at 6.
27. Shifrin, supra note 9, at 83.
28. Appellant's Brief, supra note 16, at 6.
29. Irving, Texas, Offers to Negotiate DFW Expansion, AIRPORTS, Jan. 8, 1991, at 16.
30. FAA Issues Environmental Impact Statement For DFW Airport, AVIATION DAILY, Jan. 7, 1992, at 25.
31. Brief of Appellee at 9, Dallas/Fort Worth Int'l Airport Bd. v. City of Irving, Texas, appeal docketed, (Tex. App.--Dallas) No. 05-92-00559-CV [hereinafter Appellee's Brief].
32. Appellant's Brief, supra note 16, at 7.
33. Appellee's Brief, supra note 31, at 10.
34. Grapevine, Tex., Ordinance No. 89-82 (Dec. 21, 1989).
35. Grapevine, Tex., Ordinance No. 89-81 (Dec. 21, 1989).
36. Irving, Tex., Ordinance No. 5733 (Jan. 4, 1990). 37. Id.
38. Appellant's Brief, supra note 16, at 9.
39. Irving, Tex., Ordinance No. 5732 (Jan. 4, 1992).
40. Irving, Tex., Ordinance No. 2286 (Mar. 30, 1972).
41. Appellant's Brief, supra note 16, at 9.
42. Euless, Tex., Ordinance No. 1016 (Nov. 28, 1989).
44. Appellant's Brief, supra note 16, at 8.
45. D/FW Board Seeks To Block Local Restrictions On Expansion, AIRPORTS, Apr. 17, 1990, at 168.
46. Communities File Countersuit Against Dallas/Fort Worth Airport Board, AIRPORTS, May 15, 1990, at 211.
47. TEX. REV. CIV. STAT. ANN. art. 46d, §§ 1-22 (Vernon 1992).
48. Appellant's Brief, supra note 16, at 4.
49. Acts of 1947, 50th Leg., R.S., ch. 114, §§ 1-22, 1947 Tex. Gen. Laws 183.
52. Section 2 of the Act provides:
53. Section 14(b) states:
54. Section 14(c) states:
55. Id. § 14(d).
56. See supra notes 47-55 and accompanying text.
57. City of Sherman v. Municipal Gas Co., 133 Tex. 324, 327, 127 S.W.2d 193, 195 (1939).
58. Id. at 195.
59. Appellee's Brief, supra note 31, at 30.
60. Forwood v. City of Taylor, 147 Tex. 161, 165, 214 S.W.2d 282, 285 (1948). 61. The Home Rule amendment reads as follows:
62. TEX. REV. CIV. STAT. ANN. art. 1175 (Vernon 1992).
64. TEX. REV. CIV. STAT. ANN. art. 1176 (Vernon 1987). The text of the Further Powers Article is as follows:
This article was repealed by Acts of 1987, 70th Leg., ch. 149, § 49(1), which also enacted the Local Government Code. TEX. REV. CIV. STAT. ANN. art. 1176 (Vernon 1992).
65. See Lower Colo. River Auth. v. City of San Marcos, 523 S.W.2d 641 (Tex. 1975); Austin Indep. Sch. Dist. v. City of Sunset Valley, 502 S.W.2d 670 (Tex. 1973); City of Sweetwater v. Geron, 380 S.W.2d 550 (Tex. 1964); Glass v. Smith, 244 S.W.2d 645 (Tex. 1951); Forwood v. City of Taylor, 214 S.W.2d 282 (Tex. 1948); MJR's Fare of Dallas, Inc. v. City of Dallas, 792 S.W.2d 569 (Tex. App.--Dallas 1990, writ denied); City of Lucas v. North Tex. Mun. Water Dist., 724 S.W.2d 811 (Tex. App.--Dallas 1986, writ ref'd n.r.e.); City of Addison v. Dallas Indep. Sch. Dist., 632 S.W.2d 771 (Tex. App.--Dallas 1982, writ ref'd n.r.e.); Wagstaff v. City of Groves, 419 S.W.2d 441 (Tex. Civ. App.--Beaumont 1967, writ ref'd n.r.e.); Janus Films, Inc. v. City of Fort Worth, 354 S.W.2d 597 (Tex. Civ. App.--Fort Worth 1962, writ ref'd n.r.e.).
66. 380 S.W.2d 550 (Tex. 1964).
67. TEX. REV. CIV. STAT. ANN. art. 1269m (Vernon 1992).
68. Id. § 5. The approved grounds were:
69. City of Sweetwater, 380 S.W.2d at 552.
70. TEX. REV. CIV. STAT. ANN. art. 1269m, § 16 (Vernon 1992).
71. City of Sweetwater, 380 S.W.2d at 552.
74. 150 Tex. 632, 244 S.W.2d 645 (1951).
75. See supra notes 66-73 and accompanying text.
76. Glass, 244 S.W.2d at 655.
77. Id. at 652.
78. 523 S.W.2d 641 (Tex. 1975).
79. Id. at 643.
80. 147 Tex. 161, 214 S.W.2d 282 (1948).
81. Lower Colo. River Auth., 523 S.W.2d at 643 (quoting Forwood, 214 S.W.2d at 286).
82. Section 8 of the LCRA Act reads as follows:
83. Id. at 643.
84. Id. at 645.
85. Id. (quoting Glass v. Smith, 150 Tex. 632, 244 S.W.2d 645 (1951)).
89. Id. at 647 (McGee, J., dissenting).
92. 214 S.W.2d 282 (Tex. 1948).
93. Id. at 284-85.
94. TEX. REV. CIV. STAT. ANN. art. 1048 (Vernon 1992). The statute reads as follows:
95. Forwood, 214 S.W.2d at 284.
96. Id. at 285.
97. 724 S.W.2d 811 (Tex. App.--Dallas 1986, writ ref'd n.r.e.).
98. The extraterritorial jurisdiction of the city of Lucas, which is a general law city of less than 5,000 residents, "consists of 'all the contiguous unincorporated area, not part of any other city, within one-half (1/2) mile of the corporate limits of' the City." id. at 814 (quoting TEX. REV. CIV. STAT. ANN. art. 970a, § 3.A(l) (Vernon 1963)).
99. City of Lucas, 724 S.W.2d at 814.
100. 1951 Tex. Gen. Laws 96, as amended by Act of April 30, 1975, ch. 90, § 1, sec. 27, 1975 Tex. Gen. Laws 238.
101. Id. Section 27(a) of the District Act provides, in pertinent part:
102. Id. Section 27(l) of the District Act provides:
103. City of Lucas, 724 S.W.2d at 816.
107. 632 S.W.2d 771 (Tex. App.--Dallas 1982, writ ref'd n.r.e.).
108. Id. at 772-73.
110. Austin Indep. Sch. Dist. v. City of Sunset Valley, 502 S.W.2d 670 (Tex. 1973).
111. Id. at 674.
112. City of Lucas, 724 S.W.2d at 816.
113. City of Addison, 632 S.W.2d at 772.
114. 419 S.W.2d 441 (Tex. Civ. App.--Beaumont 1967, writ ref'd n.r.e.).
115. 116 Tex. 314, 291 S.W. 202 (1927).
116. In the language of the court:
117. 106 Tex. 472, 170 S.W. 1036 (1914).
118. In the language of the court: "Though they may seem to be repugnant, if it is possible to fairly reconcile them, such is the duty of the court. A construction will be sought which harmonizes them and leaves both in concurrent operation, rather than destroys one of them." Id. at 1037.
119. Wagstaff, 419 S.W.2d at 444.
121. Janus Films, Inc. v. City of Fort Worth, 354 S.W.2d 597, 599 (Tex. Civ. App.--Fort Worth 1962, writ ref'd n.r.e.).
122. 792 S.W.2d 569 (Tex. App.--Dallas 1990, writ denied).
123. Dallas, Tex., Ordinance 19,196 (proposed June 12, 1986).
124. MJR's Fare, 792 S.W.2d at 572.
125. Id. at 571.
126. TEX. LOC. GOV'T CODE ANN. §§ 211.001 -.013 (Vernon 1988).
127. MJR's Fare, 792 S.W.2d at 573.
129. TEX. ALCO. BEV. CODE ANN. §§ 109.31, 109.33 (Vernon 1990).
130. MJR's Fare, 792 S.W.2d at 573.
131. Id. Section 5 of the Texas Constitution provides:
132. TEx. CONST. art. XI, § 5; MJR's Fare, 792 S.W.2d at 573.
133. MJR's Fare, 792 S.W.2d at 573.
135. TEX. ALCO. BEV. CODE ANN. §§ 109.31, 109.33. 136. MJR's Fare, 792 S.W.2d at 574.
137. See supra notes 57-64 and accompanying text.
138. City of Sweetwater v. Geron, 380 S.W.2d 550, 552 (Tex. 1964).
139. Glass v. Smith, 150 Tex. 632, 641, 244 S.W.2d 645, 652 (1951).
140. Lower Colo.River Auth. v. City of San Marcos, 523 S.W.2d 641, 645 (Tex. 1975) (citing Glass v. Smith, 150 Tex. 632, 244 S.W.2d 645 (1951)).
141. Forwood v. City of Taylor, 147 Tex. 161, 166, 214 S.W.2d 282, 285 (Tex. 1948).
142. See generally Lower Colo. River Auth., 523 S.W.2d at 645; City of Sweetwater, 380 S.W.2d 550; Glass, 150 Tex. at 642, 244 S.W.2d at 652.
143. City of Lucas v. North Tex. Mun. Water Dist., 724 S.W.2d 811, 816 (Tex. App.--Dallas 1986, writ ref'd n.r.e.).
144. City of Addison v. Dallas Indep. Sch. Dist., 632 S.W.2d 771, 771-73 (Tex. App.--Dallas 1982, writ ref'd n.r.e.).
145. City of Beaumont v. Fall, 116 Tex. 314, 324, 291 S.W. 202, 206 (Tex. 1927).
146. Janus Films, Inc. v. City of Fort Worth, 354 S.W.2d 597, 599 (Tex. Civ. App.--Fort Worth 1962, writ ref'd n.r.e.).
147. See supra notes 47-56 and accompanying text.
148. See supra notes 57-64 and accompanying text.
149. See supra notes 144-146 and accompanying text.
150. TEX. REV. CIV. STAT. ANN. art. 46d, § 2 (Vernon 1992).
151. See supra notes 29-30 and accompanying text.
152. See supra notes 13-14 and accompanying text.
153. The language of the Act is as follows:
154. Id. (stating that no other municipality shall have any authority to charge or exact a license fee or occupation tax for operations thereon. TEX. REV. CIV. STAT. ANN. art 46d, § 7(b) (Vernon 1992)).
155. Glass v. Smith, 150 Tex. 632, 641, 244 S.W.2d 645, 652 (1951); see supra note 140 and accompanying text.
156. Woolen v. Surtran Taxicabs, Inc., 461 F. Supp. 1025 (N.D. Tex. 1978), aff'd, 801 F.2d 159 (5th Cir. 1986), cert. denied sub. nom., Whorton v. Surtran Taxicabs, 480 U.S. 931 (1987).
157. Id. at 1040.
158. TEX. REV. CIV. STAT. ANN. art. 47d, § 7(b) (Vernon 1992).
159. See supra notes 60-64 and accompanying text.
160. See supra notes 143-44 and accompanying text.
161. See generally Appellant's Brief, supra note 16.
162. 119 A.2d 761 (NJ. 1956).
163. Id. at 763.
165. Aviation Serv., 119 A.2d at 765.
167. Id. at 766.
169. Id. at 767. 170. The New Jersey Court stated:
171. 402 A.2d 983 (N.J. Super. Ct. App. Div. 1979).
172. Id. at 984-85.
173. Id. at 985.
174. Hanover, N.J., Ordinance No. 8-78 (May 11, 1978). The ordinance provided:
175. N.J. STAT. ANN. § 40:8-2 (West 1991).
176. Town of Morristown, 402 A.2d at 986.
179. 14 N.W.2d 140 (Mich. 1944).
180. Id. at 142.
182. Petition of City of Detroit, 14 N.W.2d at 142.
183. 237 N.E.2d 173 (Ohio 1967).
184. Id. at 178. The court quoted from Helsel. See supra note 170 for the full text of the quote.
185. City of Heath, 237 N.E.2d at 178.
187. Id. at 179.
188. OHIO REV. ANN. CODE § 713.02 (Anderson 1991). The statute directs that:
The statute further provides that the location, character and extent of the following facilities must be approved by the planning commission prior to construction: public building or structure, street, boulevard, parkway, park, playground, public ground, canal, river front, harbor, dock wharf, bridge, viaduct, tunnel, or other public way, ground, works, or utility. Id. (emphasis added). 189. City of Heath, 237 N.E.2d at 179.
190. Id. at 180.
191. See generally Aviation Serv., Inc. v. Board of Adjustment of the Township of Hanover, 119 A.2d 761 (N.J. 1956); Town of Morristown v. Township of Hanover, 402 A.2d 983 (NJ. Super. Ct. App. Div. 1979); In re Petition of City of Detroit, 14 N.W.2d 140 (Mich. 1944); City of Heath v. Licking County Regional Airport Auth., 237 N.E.2d 173 (Ohio 1967).
192. Aviation Serv., 119 A.2d at 765.
194. Id. at 766.
195. Id. at 767.
196. Id. at 766; see also State ex rel. Helsel v. Board of County Comm'rs, 79 N.E.2d 698, 705 (Ohio 1947).
197. Aviation Serv., Inc. v. Board of Adjustment of Township of Hanover, 119 A.2d 761, 766 (NJ. 1956); see also Helsel, 79 N.E.2d at 705.
198. Town of Morristown v. Township of Hanover, 402 A.2d 983, 986 (N.J. Super. Ct. App. Div. 1979).
200. Petition of City of Detroit, 14 N.W.2d 140, 142 (Mich. 1944).
201. City of Heath v. Licking County Regional Airport Auth., 237 N.E.2d 173, 179 (Ohio 1967).
202. Id. at 179.
203. TEX. REV. CIV. STAT. ANN. art. 46d (Vernon 1992).
204. Section 19 of the Act states:
205. See supra notes 47-56 and accompanying text.
206. Section 14(c) of the Act states:
207. Aviation Serv., Inc. v. Board of Adjustment of Township of Hanover, 119 A.2d 761, 766 (N.J. 1956).
208. See supra notes 52-55 and related text.
209. Aviation Serv., 119 A.2d at 766.
210. The Texas Local Government Code provides:
211. Aviation Serv., 119 A.2d at 766.
212. Id. 213. Id.; see also State ex rel. Helsel v. Board of County Comm'rs, 79 N.E.2d 698, 705 (Ohio 1947) (zoning power restricted to regulation of private lands).
214. Town of Morristown v. Township of Hanover, 402 A.2d 983, 986 (N.J. Super. Ct. App. Div. 1979).
215. Dallas/Fort Worth Int'l Airport Bd. v. City of Irving, No. 90-4298-I (Dist. Ct. of Dallas County, 162nd Judicial Dist. of Texas, Oct. 8, 1991).
216. See supra notes 57-64 and related text.
217. U.S. CONST. art. VI, cl. 2. The Supremacy Clause commands that "[tihis Constitution, and the laws of the United States which shall be made in Pursuance thereof... shall be the supreme Law of the land." Id.
218. English v. General Elec. Co., 496 U.S. 72, 78 (1990).
219. Id.; see also Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95-98 (1983)(Congress may explicitly define preemption limits.).
220. Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 299 (1988).
221. English, 496 U.S. at 79.
223. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).
225. English, 496 U.S. at 79.
226. Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977)(quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
228. Boyle v. United Technologies Corp., 487 U.S. 500, 508 n.4 (1988).
229. English, 496 U.S. at 79; see also Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984); Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190, 204 (1983); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963).
230. Hines v. Davidowitz, 312 U.S. 52, 67 (1941); see also California v. ARC America Corp., 490 U.S. 93, 100-01 (1989); Maryland v. Louisiana, 451 U.S. 725, 747 (1981).
231. Louisiana Pub. Serv. Comm'n v. Federal Communications Comm'n, 476 U.S. 355, 369 (1986).
232. Pub. L. No. 85-726, 72 Stat. 731 (codified as Federal Aviation Act of 1958, 49 U.S.C. § 1301 (1981)); Pub. L. No. 92-574, 86 Stat. 1234 (codified as 42 U.S.C. § 4901 (1988)); Pub. L. No. 101-508, tit. IX, subtit. D, § 93C 1, 104 Stat. 1388-78 (codified as 49 U.S.C. § 2151 (1988)); Pub. L. No. 91-258, tit. 1,84 Stat. 219 (codified as 49 U.S.C. § 1701 (1988)); Pub. L. No. 97-248, tit. V, §§ 501-32, 96 Stat. 671 (codified as 49 U.S.C. § 2201 (1988)); Pub. L. No. 100-508, 101 Stat. 1486 (codified as 49 U.S.C. § 2201 (1988)).
233. U.S.C. § 1301 (1988).
234. Id. 49 U.S.C. § 1348(a) provides in part:
235. Id. §§ 1348, 1349(c), 1353, 1371, 1421-22, 1429-30, 1432.
236. Hearings before the Subcomm. on Aviation of the Senate Comm. on Interstate and Foreign Commerce, 85th Cong., 2d Sess. 279 (1958)(statement of Sen. Monroney).
237. See generally Tom Neuhoff, Jr., Obstacles to Increasing Airspace: Jumping Through Environmental Law Hoops, 58 J. AIR L. & COM. 221 (1992).
238. 49 U.S.C. § 1431 (1988).
239. Id. § 1431(b)(1) provides that:
240. 42 U.S.C. § 4901 (1988).
241. 411 U.S. 624 (1973).
242. Id. at 633.
244. S. Rep. No. 52, 96th Cong., 2d Sess. 3 (1979), reprinted in 1980 U.S.C.C.A.N. 89, 91.
245. 46 Fed. Reg. 8320 (1981)(codified at 14 C.F.R. pt. 150). The regulation states in part:
246. Pub. L. No. 101-508, tit. IX, subtit. D, § 9301, 104 Stat. 1378-88 (codified as 49 U.S.C. § 2151).
247. 56 Fed. Reg. 48,628 (1991)(to be codified at 14 C.F.R. pt. 91).
248. 49 U.S.C. §§ 2151(3) and (5). Congress found that a "noise policy must be implemented at the national level." Id. § 2151(3). Congress also found that "[c]ommunity noise concerns have led to uncoordinated and inconsistent restrictions on aviation which could impede the national air transportation system." Id. § 2151(5).
249. 49 U.S.C. § 2153(h). This section states that nothing in the Airport Noise and Capacity Act of 1990 "shall be deemed to eliminate, invalidate or supersede existing laws with respect to airport noise or access restrictions by local authorities." Id.
250. Pub. L. No. 91-258, tit. I, 84 Stat. 219 (codified as 49 U.S.C. § 1701).
252. 49 U.S.C. §§ 1716(c)-(e), 1718(a)(3), 1718(a)(4) & 1719 (repealed and superseded).
253. 49 U.S.C. § 1742 (1988).
254. Pub. L. No. 97-248, tit. V, §§ 501-32, 96 Stat. 671 (codified as 49 U.S.C. §2201).
255 Pub. L. No. 100-508, 101 Stat. 1486 (codified as 49 U.S.C. § 2210).
256 Pub. L. No. 91-190, 83 Stat. 852 (codified as amended at 42 U.S.C. § 4321). 257. For a cogent discussion of the entire regulation process of airports under NEPA, see generally Neuhoff, supra note 237, at 221.
258. English v. General Elec. Co., 496 U.S. 72, 79 (1990); see also California v. ARC America Corp., 490 U.S. 93, 100-01 (1989); Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984); Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190, 204 (1983); Maryland v. Louisiana, 451 U.S. 725, 747 (1981); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963); Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
259. 411 U.S. 624 (1973).
260. Id. at 653 (Rehnquist, J., dissenting). Chief Justice Rehnquist stated:
261. See, e.g., Condor Corp. v. City of St. Paul, 912 F.2d 215, 219 (8th Cir. 1990)("We see no conflict between a city's regulatory power over land use, and the federal regulation of airspace, and we have found no case recognizing a conflict."); San Diego Unified Port Dist. v. Gianturco, 651 F.2d 1306, 1313-14 (9th Cir. 1981), cert. denied, 455 U.S. 1000 (1982) ("As we read City of Burbank, Congress has pre-empted only local regulation of the source of aircraft noise. Local governments may adopt abatement plans that do not impinge on aircraft operations."); Faux-Burhans v. County Comm'rs of Fredrick County, 674 F. Supp. 1172 (D. Md. 1987), aff'd, 859 F.2d 149 (4th Cir. 1988), cert. denied, 488 U.S. 1042 (1989) (holding local regulation requiring special use permit for airport not pre-empted); Air Transp. Ass'n ofAmerica v. Crotti, 389 F. Supp. 58 (N.D. Cal. 1975)(holding California regulation of aircraft noise level standards not preempted).
262. See supra note 3.
263. Dallas/Fort Worth Int'l Airport Bd. v. City of Irving, Texas, No. 90-4298-I (Dist. Ct. of Dallas County, 162d Judicial Dist. of Texas, Oct. 8, 1991).
264. See supra note 3.