AVIATION NOISE LAW
Greater Westchester Homeowners Assoc. v. City of Los Angeles
Cite as: 26 Cal.3d 86, 160 Cal.Rptr. 733, 603 P.2d 1329


SUPREME COURT OF CALIFORNIA

GREATER WESTCHESTER HOMEOWNERS ASSOCIATION et al., Plaintiffs and Respondents
v.
CITY OF LOS ANGELES, Defendant and Appellant

L.A. No. 31105

December 14, 1979


COUNSEL:

Burt Pines, City Attorney, Lawrence M. Nagin, James H. Pearson, Assistant City Attorneys, and Kern & Wooley for Defendant and Appellant.

George Agnost, City Attorney (San Francisco), Donald J. Garibaldi, David I. Kroopnick, Louis E. Goebel, Michael Scott Gatzke, Ruth R. Mijuskovic, Luce, Forward, Hamilton & Scripps, Richard K. Simon and Kadison, Pfaelzer, Woodard, Quinn & Rossi as Amici Curiae on behalf of Defendant and Appellant.

Fadem, Berger & Norton and Michael M. Berger for Plaintiffs and Respondents.


RICHARDSON, J.

Is a municipality which owns and operates an airport liable on a nuisance theory for personal injuries sustained by nearby residents and caused by noise from aircraft using the facility? We will conclude that it is. The resolution of this issue requires a careful weighing of two conflicting interests and policies. On the one hand, by ancient law, the owners and occupants of land are entitled to the peaceful use, possession, and enjoyment of their property. On the other, the general public has a strong interest in the transportation and related services furnished by commercial aviation. These two interests, the private and the public, are solidly founded in the common law and deeply rooted in established constitutional doctrine. When locked in confrontation, which interest prevails and under what circumstances?

We have looked at the problem before. (Loma Portal Civic Club v. American Airlines, Inc. (1964) 61 Cal.2d 582 [39 Cal.Rptr. 708, 394 P.2d 548].) We examine it again in reviewing a judgment entered in the Los Angeles Superior Court in 1976 following a 1975 trial wherein plaintiffs, multiple homeowners and their families living in the Westchester area adjacent to Los Angeles International Airport (LAX), sought damages from the defendant, City of Los Angeles (City), which owns and operates LAX. The condition of nuisance giving rise to their claim of emotional and mental distress was the noise generated by the arrival and departure of jet aircraft at LAX, the nation's third largest commercial aviation facility.

In 1968 plaintiffs, as owners and occupants of homes situate near LAX's two north runways, sued the City in inverse condemnation for property damage and, on a nuisance theory, for personal injuries allegedly caused by noise, smoke, and vibrations emanating from aircraft using LAX. Plaintiffs' action was consolidated with other suits for direct condemnation which were brought by City against the owners of other nearby parcels of land. Trial of the direct condemnation and nuisance actions was bifurcated, and substantial direct and inverse condemnation judgments in favor of plaintiffs were entered and fully satisfied.

The nuisance phase of the case, tried before the court, resulted in findings of fact to the effect that the noise created by jet aircraft using the two north runways of LAX 'interfered with person-to-person conversation in the home, ... [with] normal telephonic communication, with the ability to enjoy the use of the out-of-doors' portion of their property and ... to hear and enjoy television programs; that such noise caused frequent arousal from sleep and, in some cases, interfered with the ability ... of school age members of the families to study in their homes.' On the basis of the foregoing findings the trial court concluded that plaintiffs had established the existence of an actionable nuisance giving rise to damages for 'annoyance, inconvenience, discomfort, mental distress, and emotional distress,' and that a nuisance recovery was independent of plaintiffs' claim for diminution of their property values.

In the nuisance proceeding 41 plaintiffs were awarded damages in the aggregate sum of $86,000 for personal injuries sustained during the period 1967-1975. Thereafter, in a postjudgment order the trial court imposed prejudgment interest on all of the awards, both condemnation and nuisance, and also assessed $200,000 attorney's fees against City which appeals from both the nuisance judgments and the postjudgment order.

Either by way of stipulation or from undisputed evidence, the following significant facts were established: The federal government exercises exclusive control over aircraft 'in flight,' defined as all movement of the plane from departure to arrival gates; LAX operates in a residential zone under a 1955 conditional use permit from City; City initially located the two north runways with full knowledge that the noise from their use would reach nearby established residences; the north runways were constructed with substantial federal financial assistance under grant agreements between City and the Federal Aviation Administration (FAA); and all commercial aircraft using LAX have federal airworthiness certificates which indicate compliance with federal noise emission standards.

City has consistently argued that plaintiffs' nuisance claim must fail for two reasons. First, the noise in question originates from flying aircraft over which the United States government exercises exclusive dominion and therefore any attempted noise control by an airport operator is federally preempted. Second, the operation of aircraft being expressly sanctioned by statutory law, any aircraft noise emissions cannot constitute a nuisance because of Civil Code section 3482, which provides: 'Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.' We review, and will reject, each of these contentions and will also consider several collateral questions raised by the trial court's postjudgment order.


Preemption

Certain fundamental principles expressed by the United States Supreme Court guide our analysis of the preemption issue. When respective federal and state sovereignties are juxtaposed, 'the proper approach is to reconcile 'the operation of both statutory schemes with one another rather than holding one completely ousted." (Merrill Lynch, Pierce, Fenner & Smith v. Ware (1973) 414 U.S. 117, 127 [38 L.Ed.2d 348, 359, 94 S.Ct. 383].) The courts thereby attempt 'the necessary accommodation between local needs and the overriding requirement of freedom for the national commerce ....' (Freeman v. Hewit (1946) 329 U.S. 249, 253 [91 L.Ed. 265, 272, 67 S.Ct. 274].)

The United States Supreme Court has described, generally, the scope of the preemption doctrine. It has said that federal regulation of an area of commerce may preempt state actions upon the same subject matter if (1) there is an apparent congressional intent to blanket the field, (2) the federal and state schemes directly conflict, or (3) any state intervention would burden or frustrate the full purposes and objectives of Congress. (Florida Avocado Growers v. Paul (1963) 373 U.S. 132, 141 [10 L.Ed.2d 248, 256, 83 S.Ct. 1210]; Rice v. Santa Fe Elevator Corp. (1947) 331 U.S. 218, 230-231 [91 L.Ed. 1447, 1459-1460, 67 S.Ct. 1146].) The controlling inquiry on the preemption issue is determining whether the state action stands 'as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' (Hines v. Davidowitz (1941) 312 U.S. 52, 57, 67 [85 L.Ed. 581, 586-587, 61 S.Ct. 399].)

The preemptive intent of Congress may be explicit or implicit, but where the effect of preemption is to impede the exercise of historic state powers the high court has held that the intent must be 'clear and manifest.' (Jones v. Rath Packing Co. (1977) 430 U.S. 519, 525 [51 L.Ed.2d 604, 614, 97 S.Ct. 1305], quoting Rice, supra, at p. 230 [91 L.Ed. at p. 1459].) Furthermore, preemption exists only to the extent necessary to serve congressional objectives. (Merrill Lynch, Pierce, Fenner & Smith v. Ware, supra, 414 U.S. at p. 127 [38 L.Ed.2d at p. 359].) Additionally, it has long been recognized that state action may also be precluded where it unreasonably affects or discriminates against interstate commerce, or touches upon a field of commerce which requires uniform national regulation. (U.S. Const., art. I, s 8, cl. 3; A&P Tea Co. v. Cottrell (1976) 424 U.S. 366, 370-372 [47 L.Ed.2d 55, 60-61, 98 S.Ct. 923]; Freeman v. Hewit, supra, 329 U.S. 249, 252 [91 L.Ed. 265, 278-279]; Cooley v. Board of Wardens of Port of Philadelphia et al. (1852) 53 U.S. (12 How.) 298, 339 [13 L.Ed. 996].)

Consistent with the foregoing general principles and with specific application to aviation, we have previously acknowledged that commercial flights which are conducted in strict compliance with federal regulations may not be enjoined as nuisances, both because of the continuing public interest in air transportation, and because of the likelihood of direct conflict with federal law. (Loma Portal Civic Club v. American Airlines, Inc., supra, 61 Cal.2d 582, 591.) In so holding, however, we expressly cautioned that our decision did not determine the 'rights of landowners who suffer from airplane annoyances to seek damages from the owners or operators of aircraft or to seek compensation from the owner or operator of an airport.' (Ibid., italics added.) Preemption, we observed, did not operate per se to preclude the enforcement of private state remedies for aircraft noise damage, and only a 'compelling federal interest' would support a finding that Congress intended to nullify state-created rights. ( Id., at p. 592.)

Is there a 'compelling federal interest' which precludes state imposition of nuisance liability upon the proprietor of an airport? If so, it will be revealed in current statutory and decisional law which we examine.

The Federal Aviation Act of 1958, as amended (Act) (49 U.S.C.A. s 1301 et seq.; all statutory references are to 49 U.S.C.A. unless otherwise cited) grants the FAA exclusive control over aircraft takeoffs, landings, and air navigation. (s 1348(c); see 14 C.F.R. pts. 1-171.) Acting through the FAA, the federal government also provides construction grants for needed airports under agreements which require extensive federal supervision of their location, layout, design, and environmental compatibility. (ss 1716(c)-(e), 1718(a)(3), (a)(4), 1719.) Section 1718 (a)(1) requires that airports so subsidized must be available for public use on 'fair and reasonable terms and without unjust discrimination, ...' The federal government has also been involved in aircraft noise control. Since 1968 the FAA and, more recently, the Environmental Protection Agency (EPA) have been under congressional mandate to establish maximum noise emission levels for operating aircraft (s 1431(b)(1)); and preliminary federal noise control standards have been in effect since 1969 (14 C.F.R. s 36.1 et seq.).

Shortly after the adoption of the Act the Supreme Court majority in Griggs v. Allegheny County (1962) 369 U.S. 84 [7 L.Ed.2d 585, 82 S.Ct. 531], reaffirmed the obligation of a public entity to compensate, through the inverse condemnation remedy, for property 'taken' when excessive airport noise prevents the peaceful use and occupancy of residential land. The rights of property owners in this situation were fully respected. (See also Aaron v. City of Los Angeles (1974) 40 Cal.App.3d 471, 483-486 [115 Cal.Rptr. 162], cert. den. (1975) 419 U.S. 1122 [42 L.Ed.2d 822, 95 S.Ct. 806].)

Subsequently, however, when a preemption issue arose within the context of assertion of the local police power, the high court majority held that the Act, as amended by 1968 and 1972 federal noise control laws, had completely preempted local regulation of 'aircraft in flight' for the purpose of aviation noise abatement. (City of Burbank v. Lockheed Air Terminal (1973) 411 U.S. 624 [36 L.Ed.2d 547, 93 S.Ct. 1854].) Interpreting the foregoing Act the high court, in invalidating an ordinance of the City of Burbank which imposed a night curfew on jet flights at the privately owned Hollywood-Burbank Airport, reasoned that the federal legislation demonstrated an implicit congressional intent to give to the FAA and EPA full control over aircraft flight and aviation noise. The Burbank court concluded that the widespread imposition of local curfews would frustrate flight scheduling and navigational patterns nationwide, thus hindering commerce, aviation safety, and the general FAA management of the national air traffic network (pp. 637-640 [36 L.Ed. 2d pp. 555-557].)

While thus precluding local regulation of aircraft noise under the police power, the Burbank court expressly refrained from imposing similar limitations on the rights and obligations of a proprietor-landlord to control aircraft noise levels. The high tribunal carefully noted that congressional committees which were considering the 1968 and 1972 laws had affirmed the Department of Transportation/FAA views that federal law did not preempt the exercise of reasonable, non-discriminatory proprietary control over land use planning, design and location of runways, aircraft noise limits, and curfews. Specifically referring to a letter from the Secretary of Transportation to a senate subcommittee which was considering the 1968 noise control legislation, the court said: 'The letter from the Secretary of Transportation also expressed the view that 'the proposed legislation will not affect the rights of a State or local public agency, as the proprietor of an airport [italics in original], from issuing regulations or establishing requirements as to the permissible level of noise which can be created by aircraft using the airport. Airport owners acting as proprietors [italics in original] can presently deny the use of their airports to aircraft on the basis of noise considerations so long as such exclusion is nondiscriminatory.' ... [P] [W]e are concerned here not with an ordinance imposed by the City of Burbank as 'proprietor' of the airport, but with the exercise of police power .... Thus, authority that a municipality may have as a landlord is not necessarily congruent with its police power. We do not consider here what limits, if any, apply to a municipality as a proprietor [italics added].' (Pp. 635-636, fn. 14 [36 L.Ed.2d p. 555]; see Sen.Rep. No. 1353, 90th Cong., 2d Sess. (1968), 1968 U.S. Code Cong. & Admin. News, pp. 2688, 2693; cf. Sen.Rep. No. 92-1160 2d Sess. (1972), 1972 U.S. Code Cong. & Admin. News, pp. 4655, 4663.)

The careful distinction drawn by the Supreme Court between proprietary duties and police power regulation is supported administratively by the FAA, which both before and after Burbank has publicly emphasized the local airport operator's responsibilities for noise control. (E.g., FAA, Dept. of Transportation, Aviation Noise Abatement Policy (Nov. 1976) at pp. 5, 32-34; 14 C.F.R. ss 36.9, 399.110(f); 34 Fed.Reg. 18355 (1969).)

In the wake of Burbank, however, there has been no appellate agreement on the scope of the so-called 'proprietor exception' to the federal preemption rule and its effect on the tortious liability of airports. Some federal courts have held that the effect of Burbank is to bar airport proprietors from restricting the patterns, frequency, and scheduling of flights, and to prohibit any limitation on the permissible types of aircraft. (Luedtke v. County of Milwaukee (7th Cir. 1975) 521 F.2d 387, 390-391 [absolving proprietor of nuisance liability for airport noise]; County of Cook v. Priester (1974) 22 Ill.App.3d 964 [318 N.E.2d 327, 330-332].) Other courts, while agreeing that proprietors may not regulate aircraft have held that airport operators do retain responsibility for the proper construction, operation, and maintenance of ground facilities, and for land use planning designed to minimize the effects of noise. (E.g., Air Transport Association of America v. Crotti (N.D.Cal. 1975) 389 F.Supp. 58, 63-64.)

Several federal courts, supporting the FAA position, have interpreted Burbank as recognizing the power of a proprietor to impose airport use restrictions to the extent that they are reasonable and nondiscriminatory. In two cases involving flights of the Concorde supersonic transport (SST) airplane the second circuit concluded that New York City's John F. Kennedy Airport may impose reasonable noise limitations, the effects of which might preclude the commencement of SST service. (British Airways v. Port Authority of New York, Etc. (2d Cir. 1977) 564 F.2d 1002, 1011; British Airways Bd. v. Port Authority of New York (2d Cir. 1977) 558 F.2d 75, 82-85.) A lower federal court has upheld the right of a noncommercial municipal airport to impose a Burbank-type curfew. (National Aviation v. City of Hayward, Cal. (N.D.Cal. 1976) 418 F.Supp. 417, 424-425.)

In San Diego Unified Port Dist. v. Superior Court (1977) 67 Cal.App.3d 361 [136 Cal.Rptr. 557] (cert. den. sub nom. Britt et al. v. San Diego Unified Port District et al., 434 U.S. 859 [54 L.Ed.2d 132, 98 S.Ct. 184]), the Court of Appeal, while concluding that federal regulation of aviation and aircraft noise preempted the proprietor's control of 'aircraft in flight,' nonetheless held that a proprietor could be responsible in tort for the noise consequences of its land use planning decisions and improper use and maintenance of its ground facilities (pp. 376-378).

As the Burbank court suggests, considering the inverse condemnation burden imposed upon airport owners by Griggs, Congress apparently intended to preserve the principle of substantial proprietary control over airport planning, design, and use. (See Comment, Aircraft Noise: Federal Pre-emption of Local Control: Concorde and Other Recent Cases (1977) 43 J. Air L. & Com. 753, 777; see also, Airline Deregulation Act of 1978, Pub.L. No. 95-504, 49 U.S.C.A. s 1305(a)(1).) Nonetheless, the related congressional enactments contemplate very considerable federal involvement in the planning and operation of airports. The FAA has apparently invoked both contractual and regulatory authority on several occasions to oppose unilateral proprietor use restrictions. (See EPA, Legal and Institutional Analysis of Aircraft Noise and Apportionment of Authority Between Federal, State, and Local Governments (July 1973) at pp. 4/25-4/28.) Furthermore, the Burbank opinion strongly suggests that any local noise or use restrictions, by whomever imposed, which substantially upset current air schedules or prevented the use of commercial aircraft which were currently operational would burden to an unacceptable degree both federal aviation policy and interstate commerce. (See Note, Aircraft Noise Abatement: Is There Room For Local Regulation? (1975) 60 Cornell L.Rev. 269, 288-293; Note, Shifting Aircraft Noise Liability to the Federal Government (1975) 61 Va.L.Rev. 1299, 1333-1335.)

On the other hand, the citizen's rights to the full use, possession, and enjoyment of his property are given a protected status under the law. Since 1873 our statutes have defined an actionable nuisance as 'Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property ....' (Civ. Code, s 3479.) The foregoing authorities recognize that a property owner has an inverse condemnation remedy, constitutionally founded, against the proprietor of an airport for property damage or loss caused by noise generated at the facility. We discern no reason either in law or policy why the common law and statutory remedy of nuisance as above defined should not under similar circumstances equally protect the person of the owner or the occupant.

We find significance in the depth and continuous nature of City's involvement in the creation and maintenance of the nuisance in question. City concedes that it, and not the federal government, decided to build and then to expand the airport in the immediate vicinity of a residential area. It is undeniable that City chose the particular location and direction of the airport runways. It approved their usage by jet aircraft. It entered into service agreements with commercial air carriers all with full and prior knowledge of the potential noise impact. (See City of Los Angeles v. Japan Air Lines Co., Ltd. (1974) 41 Cal.App.3d 416, 419-422 [116 Cal.Rptr. 69].)

Admittedly, some of the foregoing actions by City followed federal advice, approval, and perhaps even encouragement. Nonetheless, City chose, and was not forced by anyone, to develop LAX in its particular location. City voluntarily elected to expand the facility, with foreknowledge of the preexisting nature and usage of the surrounding area. There is no evidence before us that City opposed the current level of federally approved jet service at LAX. Fair inferences are to the contrary. (Id., at pp. 422-423.)

Nor has City lacked the means to meet the obligations herein imposed. Since at least 1965, public entities have had statutory power to condemn 'aircraft noise ... easements,' and to secure, in appropriate quantities, land which might otherwise be the subject of noise damage actions. (Code Civ. Proc., s 1240.110, subd. (a) (former s 1239.3); see City of Oakland v. Nutter (1970) 13 Cal.App.3d 752, 772 [92 Cal.Rptr. 347].) This power and City's responsibility to exercise it in such a manner as to minimize noise at LAX have been publicly acknowledged by airport management. Aircraft landing fees have been established to assist in meeting the costs of land acquisition. (Japan Air Lines, supra, at p. 423.) With particular reference to the matter before us, plaintiff's acoustician testified at trial that as early as 1967 he had suggested to LAX officials the economic feasibility of constructing ground barriers to deflect and diminish LAX noise. The soundproofing of adjacent structures and restrictions on noise generated by static engine tests were additional proposed alternatives. Accordingly, City cannot fairly argue that federal law has rendered City powerless to prevent or reduce the damages of which plaintiffs complain.

Pointing to the depth of federal involvement in air navigation and noise abatement and by analogy with a series of United States Supreme Court holdings in the field of labor relations following San Diego Unions v. Garmon (1959) 359 U.S. 236 [3 L.Ed.2d 775, 79 S.Ct. 773], City and its amici urge preclusion of any state recognized tort liability for airport noise. In Garmon, state courts were held powerless to examine conduct which was either protected or prohibited by the provisions of the National Labor Relations Act (NLRA). However, the Garmon principles have been held by the high court itself to be limited by the unique nature of the NLRA which empowers the National Labor Relations Board (NLRB) to develop a uniform national labor policy affecting labor-management disputes within NLRA's scope. (Sears, Roebuck & Co. v. Carpenters (1978) 436 U.S. 180, 194-198 [56 L.Ed.2d 209, 223-226, 98 S.Ct. 1745]; Machinists v. Wisconsin Emp. Rel. Comm'n (1976) 427 U.S. 132, 138-139 [49 L.Ed.2d 396, 402-403, 96 S.Ct. 2548]; Garmon, supra, at pp. 239-246 [3 L.Ed.2d at pp. 779-784].) Even in labor relations cases, however, Garmon has not been interpreted as precluding resolution by the state of disputes which the NLRB could not have resolved, or of disputes in which a state's significant interest in protecting its citizens outweighed federal labor considerations. (Sears, supra, at pp. 197-198 [56 L.Ed.2d at pp. 225-226]; Farmer v. Carpenters (1977) 430 U.S. 290, 298-301 [51 L.Ed.2d 338, 348-351, 97 S.Ct. 1056]; Garmon, supra, at pp. 243-244 [3 L.Ed.2d at pp. 781-783].)

Continued in Part Two