In several cases, the FAA has indicated that within the federal aviation framework, it does not concem itself with land or water use zoning issues. In Blue Sky Entertainment, Inc. v. Town of Gardener, 711 F Supp. 678, 683 (N.D.N.Y. 1989), the FAA challenged portions of a local ordinance which attempted to regulate parachute jumping, aircraft operations, and aircraft noise, but the FAA specifically stated:
In another case, Dallas/Fort Worth Int'l Airport Bd. v. City of Irving, 854 S. W2d 161, 169 (Texas Ct. App.), vacated by, 868 S. W2d 750 (Tex. 1993), the FAA stated, "whether the airport is required to obtain a local permit [for an expansion project] is a matter of local law and is not relevant to the approval of the federal project." [FN 6] In Citizens Against Burlington, Inc. v. Busey, 290 U.S. App. D. C. 371, 938 F2d 190, 197 (D.C. Cir.), cert. denied, 502 U.S. 994 (1991), the court upheld the municipal regulation of a heliport, pointing out that the FAA in an Environmental Impact Statement had written:
In the present system of federalism, the FAA does not determine where to build and develop civilian airports, as an owner/operator. Rather, the FAA facilitates airport development by providing Federal financial assistance, and reviews and approves or disapproves revisions to Airport Layout Plans at Federally funded airports. [FN 6] Even though this case was vacated and remanded for reconsideration in light of a change in state law, the position the FAA took is instructive.
The FAA has, thus, made clear that although FAA regulations preempt local law in regard to aircraft safety, the navigable airspace, and noise control, the FAA does not believe Congress expressly or impliedly meant to preempt regulation of local land or water use in regard to the location of airports or plane landing sites -- whether for airplanes, helicopters or seaplanes. As a reviewing court, we must give great deference to the views of a federal agency with regard to the scope of its authority. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837. 844, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). [FN 7]
This limitation on the preemptive impact of the FAA is also found in the Supreme Court's opinion in Burbank. As Justice Rehnquist stated:
A local governing body that owns and operates an airport is certainly not, by the Court's opinion, prohibited from permanently closing down its facilities.
A local governing body could likewise use its traditional police power to prevent the establishment of a new airport or the expansion of an existing one within its territorial jurisdiction by declaring to grant the necessary zoning for such a facility. 411 US. at 653 (Rehnquist, J., dissenting).
Justice Rehnquist pointed out that "while Congress clearly intended to pre-empt the states from regulating aircraft in flight, the author of the bill, Senator Monroney, specifically stated that the FAA would not have control 'over the ground space of airports.'" Id. at 644 (emphasis added), The majority in Burbank did not disagree with this conclusion and indicated that its holding was limited to regulation of aircraft noise. By analogy, we believe that if a local governing body may use its traditional police power to prevent the establishment of a new airport and control the ground-space of airports, it may also prevent the landing of aircraft on specified bodies of water within its jurisdiction through its zoning authority, as the City of Lake Angelus has done in the present case. [FN 8] A prohibition against landing on a body of water falls in the category of "control over ground space," which the legislative history of the Act indicates is a matter of local control, rather than in the category of the regulation of aircraft in flight, which is a matter of preemptive federal control. In reviewing an issue of preemption, this court must "start with the assumption that the historic police powers of the States [are] not to bc superseded by the Federal Act unless there [is a] clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 91 L. Ed. 1447, 67 S. Ct. 1146 (1947). We find no purpose manifested in the Federal Aviation Act to preempt local law concerning the designation of landing sites for aircraft, including seaplanes. For this reason, we believe the district court erred in finding that Burbank was dispositive of the present case, which does not involve regulation of aircraft noise, but instead involves control of ground space, which has traditionally been the province of local governments. See Wright v. County of Winnebago, 73 Ill. App. 3d 337, 29 Ill. Dec. 347, 391 N.E.2d 772 (1979) (in absence of any evidence of pervasive federal regulation, FAA does not preempt local government's power to restrict location of plane landing areas).
The district court also relied on Command Helicopters, Inc. v. City of Chicago, 691 F. Supp. 1148 (N.D. Ill. 1988), in finding that the City's ordinances are preempted by federal law. In Conunand Helicopters, the court determined that because the FAA had prescribed a regulation governing extemal-load lifting operation of helicopters, a local ordinance involving a more stringent specification was preempted. We do not believe Command Helicopters is on point. The local ordinance in Command conflicted with an existing federal regulation, and the court found that a uniform and exclusive system of federal regulation goveming helicopter extemal-load lifting operations was necessary for the congressional objectives of the FAA to be fulfilled. In contrast, in the present case, there is no federal regulation preventing seaplanes from landing on lakes with which the City's ordinances conflict, nor is there a need for nationwide uniformity in order for the objectives of the FAA to be fulfilled.
We believe the present case is analogous to Faux-Burhans v. County Commissioners of Frederick County, 674 F Supp. 11 72 (D. Md. 1987), aff'd, 859 F2d 149 (4th Cir. 1988), cert. denied, 488 U.S. 1042 (1989), in which the owner of an airplane landing strip, who wanted to create a private airport, brought suit, challenging the county's zoning restrictions on airfield operations. The district court in Faux-Burhans found that the county zoning restrictions were not preempted by federal law and the Court of Appeals for the Fourth Circuit affirmed. The district court in Faux-Burhans examined the Supreme Court's opinion in Burbank and found it distinguishable. The court found that whereas the local noise regulations in question in Burbank clearly infringed upon federally preempted regulation of the navigable airspace, the plaintiff, Faux-Burhans, could point to no federal statute or regulation explicitly or implicitly preempting regulation of the size or scope of operations at a private airport (an airport not "otherwise open to air travel in general"). Id. at 1174. The court stated, "Certainly, these are all areas of valid local regulatory concern, none of which is federally preempted, and none of which inhibits in a proscribed fashion the free transit of navigable airspace. And just as certainly, no federal law gives a citizen the right to operate an airport free of local zoning control." Id.
We believe a similar rationale applies in the present case. Faux-Burhans involved use restrictions imposed on the creation of a private airport by local zoning ordinances. If a municipality, by zoning ordinances, may impose use restrictions on the creation of a private airport, we believe it may also impose use restrictions on a body of water within the municipality and prohibit the landing of seaplanes without being preempted by federal law. Just as the owner of an airplane does not have the authority to land wherever he chooses on land and must comply with local zoning ordinances, the owner of a seaplane does not have the authority to land a seaplane wherever he chooses.
Another case which is directly on point is Garden State Farms, Inc. v. Bay, 77 N.J. 439, 390 A. 2d 11 77 (1978). The plaintiff, a company seeking to establish and operate a landing area for helicopters, argued that the municipal ordinance prohibiting the creation and operation of a helistop was preempted by federal law. The court in Garden State Farms held that federal legislation has not preempted state and local jurisdiction with respect to the placement of private helistops. Id. at 446. The court stated that the local regulation of small, relatively isolated, privately owned helistops did not present a situation where "preemption may be predicated upon a felt need for a monolithic system of regulation." Id. at 446-47. The court explained:
Similar policy concerns are at issue in the present case. It is not feasible for Congress to determine how local land or bodies of water within a municipality are to be used in regard to the location of aircraft landing sites. The needs of a state such as Alaska, in which seaplanes play a vital commercial role, and Michigan, in which seaplanes are used primarily for recreation, are different, and this difference requires local, not national, regulation. The federal government, rather than "preempting the field," has not entered the field and exerts no control over the location of seaplane landing sites. If the federal government intended to preempt, we believe there would be a mass of regulations concerning seaplane landing sites, which simply do not exist. No federal statute or regulation addresses the action prohibited by the City of Lake Angelus ordinances or delineates the boundaries of local control in regard to seaplane landing sites. We find this absence of federal regulation significant. The Supreme Court, in Pacific Gas & Electric Co. v. State Energy Resources Conservation and Dev. Common. 461 U. S. 190, 75 L. Ed. 2d 752, 103 S. Ct. 1713 (1983), stated that the Court must focus on whether the matter on which the local government asserts the right to act is in any way regulated by the federal Act and found that the only reasonable inference to be drawn from silence is that Congress intended local governments to continue to regulate. Id. at 208. If federal preemption were found in the present case, a "governmental vacuum" would occur because the federal government does not regulate the location of seaplane landing sites, and state and local governments would be shorn of their regulatory authority. See Garden State Farms, 77 N.J. at 449. The result would be entirely impracticable, and every lake in the United States would become a potential airport for seaplanes. In regard to the location of commercial airports, the FAA has indicated that it will not adopt regulations controlling local land use, because the needs of each locality are unique and different. See 14 C.F.R. 157.7. Courts have recognized that federal aviation law does not preempt local regulation of the location of airports or heliports, which must comply [*32] with local zoning ordinances. Just as Congress did not intend to create a regulatory vacuum with respect to the location of commercial or privately operated airports and heliports on land, we believe Congress did not intend to create a vacuum with respect to the location of seaplane landing sites on water, but left the matter to local control.
Finally, our conclusion that the Supreme Court's decision in Burbank does not preempt all state and local zoning power with respect to aircraft landing sites is supported by ample case law. See Condor Corp. v. City of St. Paul, 912 F2d 215 (8th Cir. 1990) (city's zoning ordinance prohibiting initial siting of heliport not preempted by federal law); San Diego Unified Port Dist. v Gianturco, 651 F2d 1306 (9th Cir. 1981) (local governments' noise abatement plans that do not impinge on aircraft operations not preempted), cert. denied, 455 U.S. 1000, 71 L. Ed. 2d 866, 102 S. Ct. 1631 (1982); City of Cleveland, Ohio v. City of Brook Park, Ohio, 893 F Supp. 742 (N.D. Ohio 1995) (the FAA does not possess zoning authority merely by virtue of its broad mandate to regulate matters relating to aviation; state or local zoning or land use laws are not preempted); Wood v. City of Huntsville, 384 So. 2d 1081 (Ala. 1980) (although Congress has extensively and exclusively regulated use of the navigable airspace of the United States, state and local governments retain substantial control over ground usage); Bethman v. City of Ukiah, 216 Cal.App. 3d 1395, 265 Cal.Rptr. 539 (1989) (no federal preemption of state or municipal regulation of the location and environmental impact of airports); Wright v. County of Winnebago, 73 Ill. App. 3d at 344 (FAA does not preempt local zoning authority from determining appropriate use of land; the right not to have an airport in the first place is local); Harrison v. Schwartz, 319 Md. 360, 5 72 A. 2d 528 (1990) (a zoning ordinance that does not regulate aircraft noise emissions or the actual conduct of flight operations may withstand a preemption argument), cert. denied, 498 US. 851, 112 L. Ed. 2d 110, III S. Ct. 143 (1990); People v. Aliman, 61 Misc. 2d 4, 304 N.Y.S.2d 534, (N.Y. Dist. Ct. 1969) (town ordinance prohibiting seaplanes from taking off or landing upon any portion of town's channel system except in an emergency is in harmony with federal law on the subject and is not preempted).
To conclude, there is a distinction between the regulation of the navigable airspace and the regulation of ground space to be used for aircraft landing sites. Although the regulation of the airspace of the United States has been preempted by Congress, we find Congress did not intend to preempt the regulation of water use in regard to aircraft landing sites as indicated by an examination of the Federal Aviation Act, the attendant regulations, the legislative history of the Act, and by statements made by the FAA itself. As the court in City of Cleveland stated:
The Aviation Act grants to the FAA authority to regulate the use of airspace, but this does not of necessity lead to the conclusion that localities are no longer free to regulate the use of land within their borders, even where land use regulations may have some tangential impact on the use of airspace. 893 F Supp. at 751.
Because the City of Lake Angelus could lawfully prohibit airplane and helicopter landings on city land under established case law, it logically follows that the City may also prohibit seaplane landings on Lake Angelus under its zoning authority. Federal preemption of the airspace under the Act does not limit the right of local governments to designate and regulate aircraft landing areas, including scaplane landings on lakes. Therefore, the Federal Aviation Act does not preempt City of Lake Angelus ordinances 25(J) and 66(E), which prohibit seaplanes from landing or operating on the surface of Lake Angelus. The district court is reversed on this issue. [FN 9]
III.
On cross-appeal, plaintiff alleges that as a riparian property owner and airman qualified to safely operate seaplanes, the ordinances at issue have deprived him of due process and equal protection in violation of the fourteenth Amendment, and that the ordinances are exclusionary, arbitrary, capricious and not reasonably related to a legitimate government interest.
Under Michigan law, a party alleging exclusionary zoning must be prepared to establish both that the exclusion exists throughout the municipality and that there is a demonstrated need for the use he proposes. Fremont Tp v. Greenfield, 132 Mich. App. 199, 204, 347 N. W. 2d 204 (1984). The City of Lake Angelus is Michigan's smallest city by population and is an entirely residential community. The City argues that although plaintiff Gustafson wants to land seaplanes on Lake Angelus, he has not articulated any public need for such lake usage. The City also contends that a local legislative body's determination of the public interest and adoption of regulations which are rationally related to it must be deferred to. Pearson v. City of Grand Blanc, 961 F.2d 1211, 1223 (6th Cir. 1992).
We agree with the City. As this court stated in Stupak--Thrall v. United States, 70 F.3d 881 (6th Cir. 1995):
70 F.3d at 889. See also Hess v. West Bloomfield Twp., 439 Mich. 550, 486 N.W.2d 628 (1992) (a township has the authority to regulate riparian rights as part of its zoning power). Thus, Michigan law makes it clcar that riparian rights are not absolute, but are subject to reasonable regulation, and municipalities can restrict boat usage by riparian owners. It follows by analogy that seaplane usage by riparian owners can also be restricted. The riparian rights asserted by plaintiff Gustafson are not absolutely protected by the Fourteenth Amendment, but instead are subject to reasonable regulation.
The test under Michigan law for determining whether an ordinance is reasonable requires an assessment of the existence of a rational relationship between the exercise of police power and the public health, safety, morals, or general welfare in a particular manner in a given case. Square Lake Hills Condo. Ass'n v. Bloomfield Township, 437 Mich. 310,317, 471 N.W.2d 321 (1991). Moreover, as this court has stated in Pearson, where zoning legislation is subject to substantive due process attack, the scope of review by the federal court is even more dcferential than for review of state administrative action. 961 F2d at 1223. Although when reviewing administrative action, the federal court must make an extremely limited review of the evidence, when reviewing legislative acts, such as zoning ordinances, this is not permitted. The only permissible inquiry is whether the legislative action is rationally related to legitimate land use concerns. Id.
In the present case, we find that the City's concem with "noise, [FN 10] danger, apprehension of danger, . . . destruction of property values, and interference with other lawful uses of the lake enjoyed by the great majority of citizens, including boating, sailing, fishing, swimming, and other recreational uses" fulfills the requirements of this test. In Georgia Power Company v. Baker, 830 F2d 163 (1Ith Cir. 1987), the court upheld the right of a federally licensed power company to prohibit seaplanes from using its reservoirs, even though its license, issued by the Federal Energy Regulatory Commission, required that it permit the use of the reservoirs "for the purpose of full public utilization of such lands and water for navigation and for outdoor recreational purposes, including fishing and hunting." Id. at 164. The court noted that "Georgia Power's primary concern in prohibiting seaplanes was the safety of the boating public," id., and "more importantly, the company decided that scaplane operation on its reservoirs would present significant hazards both to the boating public and to seaplane pilots. Take-off and landing constitute a danger in themsclves; and the exposed propeller of seaplanes poses an additional hazard to people on the lake as well as around docking facilities and boat ramps." Id. at 167. The court ruled that Georgia Power's prohibition of seaplanes on its reservoirs was a reasonable limitation. We find that for similar reasons, the City of Lake Angelus ordinances are reasonable limitations on the use of Lake Angelus and are rationally related to a legitimate government interest in safety.
In Appeal of Green and White Copter, Inc., 25 Pa. Commw. 445, 360 A.2d 283 (Pa. Commw. Ct. 1976), the court found that the township's total exclusion of heliports from residential areas was designed to protect the public interest. The court stated:
The potential safety problems and disturbances to the tranquility of the area are obvious. While air travel facilities are not nuisances per se, they may become nuisances in fact in a particular situation. Necessarily, the proposed use in this case would impinge upon the rights of neighboring landowners in the use and enjoyment of their property. If any further evidence of the potential for interference with adjoining property is required, it is provided by the fact that air flights over property have been found to constitute a taking of land near airports. See, e.g., Griggs v. Allegheny County, 369 U.S. 84, 7 L. Ed. 2d 585, 82 S. Ct. 531 (1962)
360 A. 2d at 285.
We believe that similar legitimate concems about the dangers inherent in the landing and taking off of seaplanes and the adverse effect on the "tranquillity of the area" by low-level air traffic are found in the present case. The record does not disclose a basis on which to find that the City's prohibition against seaplane landings on Lake Angelus is arbitrary or unreasonable. Moreover, plaintiff has not been denied equal protection of the law, because all similarly situated persons, including all Lake Angelus residents, watercraft owners, and seaplane pilots are similarly regulated. See City of Shreveport v. Conrad, 212 La. 737, 744, 33 So. 2d 503 (1947). The district court's denial of plaintiff's 42 U.S.C. 1983 claim that the ordinances deprived him of his due process and equal protection rights under the Fourteenth Amendment is therefore affirmed.
In regard to attorneys fees, a claim premised on a violation of the Supremacy Clause through preemption is not cognizable under 42 U.S.C. 1983. J. & J. Anderson, Inc. v. Town of Erie, 767 F.2d 1469, 147677 (10th Cir. 1985). Since plaintiff's alleged violations of due process and equal protection are unmeritorious, the ordinances have not violated any civil right that is redressable under 42 U.S.C. 1983, and the district court properly denied attorneys fees pursuant to 42 U.S.C. 1988.
IV.
To conclude, the district court is affirmed in part and reversed in part. The district court's grant of summary judgment to defendants in regard to plaintiff's 42 U.S.C. 1983 and 1988 claims is AFFIRMED. The district court's decision in favor of plaintiff that ordinances 66(E) and 25(J) are preempted by federal law is REVERSED, and the case is remanded to the district court for proceedings consistent with this opinion. The Federal Aviation Act does not occupy the field of water use regulations in such a way as to preempt the City of Lake Angelus ordinances.
CONCUR BY: NATHANIEL R. JONES; ALICE M. BATCHELDER
CONCUR: NATHANIEL R. JONES, Circuit Judge, concurring. After numerous attempts at drafting a principled dissent to the majority opinion, I have come to the conclusion that while it is legally unassailable, the case nevertheless has an unsettling aspect. Due to the solid conclusion reached by Judge Contie for the majority, I concur in the judgment on both the preemption and section 1983 claims.
I write separately, however, to express a concern, even as I agree with the judgment. This case, I fear, may reinforce, as an unintended consequence, the moves to neutralize the appropriate exercise of federal power whenever state and local regulations are at play. History should remind us of the reasons why a strong central government has been deemed essential in our system of federalism.
I am simply not convinced that in this case the regulations cited by Gustafson demonstrate Congressional intent to preempt the local power to designate aircraft landing sites. To the contrary. zoning is one of the few spheres of control the Federal Aviation Act ("FAA") explicitly leaves to local governments. My concern is that some states and localities will use this ruling as a rallying point in their efforts to undermine particular areas of federal control. Far from that, this case must be read narrowly and as acknowledging that Congress excepted only limited areas from federal control when it enacted the FAA. As history has taught us, certain areas of regulation in our country must be left to the control of the national government. The very nature of some subjects implicate federal control. Air traffic must be regulated at the national level. Without uniform equipment specifications, takeoff and landing rules, and safety standards, it would be impossible to operate a national air transportation system.
City of Burbank v. Lockheed Air Terminal provides a telling example of a locality's attempt to undermine the reach of the Federal Aviation Act. In Burbank, one locality's curfew on jet aircraft landings threatened to disrupt flying schedules and jeopardize air safety throughout the entire nation. As the Court noted:
Burbank, 411 US. at 639. I reiterate the Court's concern with local governments' ability to interfere with comprehensive federal regulatory programs. The line between permissible local regulation, such as the zoning regulation in this case, and impermissible encroachments on federal power in the name of zoning or other traditional state police power functions, such as protecting citizens health and welfare, is a thin line. Many localities are already eager to test the boundaries, and the courts must be ever mindful of their attempts to do so.
A recent federalism summit held in Cincinnati serves to remind us of those who wish to see power wrenched from the hands of the federal government. At the summit, state legislators, delegates, and observers from thirty-nine states and five nation-wide organizations convened to discuss proposals for "strengthening the states' hands in dealing with the federal government." See Dan Balz, Power Is on States' Agenda; Coalition Seeks to Fight Federal Encroachment on Sovereignty, Wash. Post, Oct. 25, 1995, at A17; Lawrence J. Goodrich, States Seek to Grab Even More Power from Washington, Christian Sci. Monitor, Oct. 25, 1995, at 1. Along with devising strategies to transfer certain areas under federal control to the states, conferees at this recent summit suggested proposals for interjecting state lawmakers into national rulemaking processes. Id. As this movement gains fervor, I grow more concerned that its proponents are overlooking this country's continued need for a strong national government.
In their charge to shift power from the national government to local governments, so-called states and local rights proponents cannot ignore the advancements in this country that could only have come about through the leadership of our national goverament. Besides creating an effective and intricate intcrstate travel system consisting of air, rail, water, and highway travel, our strong national government has shaped this country into a place where all citizens enjoy protections in the areas of voting rights, education, employment discrimination, labor, securities, and environmental protection. A collection of fifty separate governments could never have assured such protections throughout our fifty states.
Although a legal local seaplane landing prohibition may not seem much of a threat to the integrity of our national government, the possibility remain, that the next local regulation may not be rooted in an appropriate exercise of local power. I caution that local governments ought to take care in regulating in areas that are subject to broad national control and to consider the advantages of our national government before attempting to undermine its authority.
ALICE M. BATCHELDER, Circuit Judge, concurring. I write separately only to observe that Judge Jones's separate concurrence serves to remind us how very far we have strayed from the government described by its founders during this nation's birth.
THE FEDERALIST NO. 45, at 238 (James Madison) (G. W. Carey & J. McClellan eds., 1990).
If those who meet in the name of federalism seek, as Judge Jones puts it, "to see power wrenched from the hands of the federal government," to devise "strategies to transfer certain areas under federal control to the states," and "suggest proposals for interjecting state lawmakers into national rulemaking processes," they do so because the national government has usurped that power from the states and the people, to whom it was originally reserved. Compare U.S. CONST. art. I, 8 with U.S. CONST. amend X.