City of Burbank v. Burbank-Glendale-Pasadena Airport Authority II
(concluded)


Thus, it cannot be assumed the City's land-use review will result in an arbitrary "veto." In the absence of a clear showing of an abuse of discretion, it is presumed that a public agency has reasonably and correctly applied its land-use regulations. (See Bringle v. Board of Supervisors (1960) 54 Cal.2d 86, 89.) And an abuse of discretion certainly cannot be determined without reviewing the manner in which it was exercised. (Cf. Guinnane v. City and County of San Francisco (1987)197 Cal.App.3d 862, 868-869 [asserted denial of the right to develop property is premature without final action on building-permit application).) The City's discretion must be reviewed pursuant to Code of Civil Procedure section 1094.5, after it has been exercised, not before. (See Topanga Assn. for a Scenic Community v. County of Los Angeles (1974)11 Cal.3d 506, 515-5 17.) [FN 7]

[FN 7] The Authority sought administrative mandamus relief in Los Angeles Superior Court case No. ES004248, and the City has appealed the judgment in that action. See our opinion in case No. B123635.
As an alternate reason to affirm the judgment, the Authority renews its trial-court contention that Public Utilities Code section 21661.6 has been preempted by federal law regulating airport noise and safety, and therefore violates the Supremacy and Commerce Clauses of the United States Constitution. The Authority relies upon Burbank v. Lockheed Air Terminal, Inc. (1973) 411 U.S. 624, in which the Supreme Court struck down a municipal ordinance which placed a curfew on jets in order to abate noise. The Court held that the Noise Control Act of 1972 preempted state and local control of aircraft noise through regulation of aircraft flight. [FN 8] (411 U.S. at pp.633-635.) The Authority makes the broad assertion that federal law preempts any action by a nonproprietor municipality to restrict airport noise. [FN 9] Then it concludes that because the City attempted to use section 21661.6 to impose noise restrictions, federal law preempts section 21661.6.
[FN 8] Now, see generally, the Airport and Airway Safety, Capacity, Noise Improvement, and Intermodal Transportation Act of 1992 (Pub.L. 102-581, Oct.31, 1992, 106 Stat. 4872, 49 U.S.C, Subtitle VII.)

[FN 9] Burbank left open what limits, if any, apply to a municipality which owns and operates an airport. (411 U.S. at p.635, fn. 14.) A proprietor of an airport is the entity which owns, operates, and promotes it, and who has the ability to acquire necessary approach easements. (San Diego Unified Port District. v. Gianturco (9th Cir. 1981) 651 F.2d 1306, 1316-1317, U.S. cert. den. in 455 U.S. 1000.) The City does not claim to be a proprietor.

The Authority recognizes that Burbank has been interpreted as invalidating only those local regulations which directly interfere with aircraft operations. (See e.g.,. Burbank-Glendale-Pasadena Airport Authority v. City of Los Angeles (9th Cir. 1992) 979 F.2d 1338, 1340-1341 ["The regulation of runways and taxiways is... a direct interference with the movements and operations of aircraft, and is therefore preempted by federal law"].) However, the Authority discerns a broader meaning in the following words in Burbank: "the pervasive control vested in EPA and in FAA under the 1972 Act seems to us to leave no room for local curfews or other local controls." (Burbank v. Lockheed Air Terminal, Inc., supra, 411 U.S at p.638, italics added.)

The Authority contends that "other local controls" must necessarily refer to any local regulation by a nonproprietor airport which might affect airport noise or safety, even indirectly, such as parking restrictions. However, our review of the opinion reveals no greater meaning in "other local controls" than those which might be used to control aircraft noise by direct regulation of the aircraft or the flight of aircraft. (Burbank v. Lockheed Air Terminal, Inc., supra, 411 U.S at pp.627, 633-635.)

Nor do the authorities cited by the Authority give Burbank the broad interpretation it urges here. Those which struck down local regulation, did so because aircraft or flights were directly affected. (See County of Cook v. Priester (1974) 22 Ill.App.3d 964, 970 [county regulation of the weight of the aircraft]; Allegheny Airlines, Inc. v. Village of Cedarhurst (2d Cir. 1956) 238 F.2d 812, 814-815 [ordinance prohibiting air flights at less than l,000 feet when passing over the village]; American Airlines v. Town of Hempstead E.D., N.Y., 1966) 272 F.Supp. 226,227 [ordinance forbidding anyone from operating airplanes which create noise above a certain level].)

Other authorities cited by the Authority support local power to regulate airport noise, so long as the regulation does not directly affect aircraft or flight. The Ninth Circuit Court of Appeals explained in San Diego Unified Port District v. Gianturco, supra, 651 F.2d at pages 1313-l314, that while a municipality may not control the source of the noise (the aircraft), it may use its police powers to mitigate the noise, such as the zoning power to assure harmonious development. "Congress has preempted only local regulation of the source of aircraft noise." (Ibid., citing, inter alia, Air Transportation Assn. of America V. Crotti (N.D.Cal.1975) 389 F.Supp. 52, 64-65 [California noise abatement provisions which do not intrude upon or affect flight operations and air space management are not preempted].)

Preemption of noise regulations which directly affect aircraft and flight operations is not express, but implied from the structure and purpose of federal aviation regulation. (Burbank v. Lockheed Air Terminal, Inc., supra, 411 U.S. at p.633.) Congress has declared: "while primary responsibility for control of noise rests with State and local governments, Federal action is essential to deal with major noise sources in commerce control of which require national uniformity of treatment...." (49 U.S.C. 4901, italics added.) The noise sources which are in commerce are the aircraft. (San Diego Unified Port District v. Gianturco, supra, 651 F.2d at p.1314.) Thus, a local regulation may not restrict the use of aircraft or directly control aircraft emissions, but may otherwise use its land-use powers to mitigate the noise. (Id. at pp. 1313-1314.)

Federal sovereignty of the airspace of the United States is exclusive. (49 U.S.C. 40103(a)(l).) The Federal Aviation Administration has the sole authority to regulate the use of airspace as necessary to ensure its efficient use and the safety of aircraft. (49 U.S.C. 40103(b)(l).) This authority includes all aspects of aviation navigation, including air control towers, radio navigation systems, and other navigation aids. (Bethman v. City of Ukiah (1989) 216 Cal.App.3d 1395, 1403.) It does not extend to regulation of ground facilities which does not affect inflight safety. (See United Air Lines, Inc. v. Occupational Safety &Health Appeals Bd. (1982) 32 Cal.3d 762, 776.)

We conclude from the foregoing authorities that local governments retain their power to regulate land use, even with regard to safety and noise control, so long as it does not touch upon the control of aircraft or airspace, or any aspect of aviation navigation. Nothing in the language of Public Utilities Code section 21661.6 permits or requires review of development plans which relate to noise or safety matters regulated exclusively under federal law. And the Legislature has expressly declared: "This state recognizes the authority of the federal government to regulate the operation of aircraft and to control the use of the airways...." (Pub. Util. Code; s. 21240.)

Thus, on its face, Public Utilities Code section 21661.6 does not intrude into areas of exclusive federal regulation. Still, the Authority complains that the City's intended use of the statute is to prevent development intended to improve the safety of the airport, and will therefore have the effect of such intrusion. However, the Authority's challenge in this action has been to the validity of the statute itself. A law may not be held unconstitutional on its face simply because it might be improperly applied. (Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180.) We therefore do not reach the Authority's contentions regarding the application of the statute.

The Authority finally contends that because Public Utilities Code section 21661.6 provides no standards by which to apply it, it is impermissibly vague, and therefore violates the Authority's constitutional right to due process. We do not reach this contention, because the Authority has no standing to challenge the validity of a state statute under the Fourteenth Amendment of the Federal Constitution. (See Star-Kist Foods, Inc. v. County of Los Angeles (1986) 42 Cal.3d 1, 6, 8.) "A municipal corporation, created by a state for the better ordering of government, has no privileges or immunities under which it may invoke in opposition to the will of its creator." (Williams V. Mayor and City Council of Baltimore (1933)289 U.S. 36, 39.) "The same reasoning applies to the due process protections afforded under the California Constitution." (Board of Supervisors V. McMahon (1990)219 Cal.App.3d 286, 296-297.)


DISPOSITION

The judgment is reversed. Appellants shall recover their costs on appeal.

LILLIE, P.J.

We concur:

JOHNSON, J.
NEAL, J.