COUNSEL:

Francis G. Fleming, P. C. by Francis G. Fleming, New York City, for plaintiffs-appellants.

Richard Filler, Scottsdale City Atty. by Donald O. Loeb, Asst. City Atty., Scottsdale, for defendants-appellees.

HAIRE, Presiding Judge.

This multiple party litigation arose out of a conflict between certain residents of Northeast Phoenix and the City of Scottsdale as the owner and operator of the Scottsdale Municipal Airport. The Northeast Phoenix Homeowners' Association is a nonprofit corporation, suing on its own behalf and that of its members. The individual plaintiffs are landowners whose homes are located under the flight path of airplanes using the airport and within 1,000 yards of the airport. The defendants include the Scottsdale Municipal Airport, [FN 1] the City of Scottsdale, as the owner and operator of the Scottsdale Municipal Airport, and the Scottsdale City Council members in their representative capacities.

[FN 1] The record does not reveal the basis upon which "Scottsdale Municipal Airport" has been sued as an entity separate and apart from the City of Scottsdale.

The complaint alleges various injuries to the plaintiffs and their homes resulting from the operation of the airport. The gravamen of the complaint is that low-flying aircraft have created and will continue to create excessive and unreasonable noise, dust, vibration and intrusive light, such that plaintiffs are and will continue to be exposed to physical danger, interruption of sleep and conversation, physical discomfort and general disruption of the peaceable enjoyment of their lands. Furthermore, the complaint alleges that the defendants have resolved to extend the runway of the airport so as to increase the number and size of aircraft using the flight path, thereby increasing the interference with the use of plaintiffs' lands and appurtenances without reasonable justification.

The complaint includes six counts. Counts I, II and III seek injunctive relief on theories of trespass, nuisance, and violation of statutes regarding flight operations. Count IV alleges that to extend the runway requires an amendment to the City of Scottsdale's "master plan",[FN 2] and seeks a declaration that the city's amendment of the plan was invalid. Count V is an alternative claim for inverse eminent domain damages in the event the court finds that injunctive relief is unavailable. Count VI is also an alternative claim, alleging that if it is determined that plaintiffs are not entitled to relief under Arizona statutes or common law pursuant to the claims alleged in their first five counts, then plaintiffs have been denied due process pursuant to the fourteenth amendment and the provisions of the Civil Rights Act, 42 U.S.C. s. 1983.

[FN 2] This is apparently a reference to a general statement of land development plans and policies adopted by the City of Scottsdale pursuant to A.R.S. s. 9-461, et seq.

[FN 3] An exception contained in the judgment leaves Counts I and II viable as to claims asserted by plaintiffs relating to alleged "surface water and/or water course diversion" by defendants.

[FN 4] In view of the fact that the trial court's judgment did not dispose of all of plaintiffs' claims, we have sua sponte considered the question of this court's appellate jurisdiction. See Rueda v. Galvez, 94 Ariz. 131, 382 P.2d 239 (1963). Insofar as concerns the denial of injunctive relief inherent in the trial court's dismissal of Counts I, II and III, we have jurisdiction pursuant to A.R.S. s. 12-2101 F(2). With respect to the dismissal of Count IV, since fewer than all the claims asserted by plaintiffs have been adjudicated, our jurisdiction is dependent upon a determination of finality by the trial judge concerning that count. Rule 54(b), Rules of Civil Procedure, 16 A.R.S. While a literal reading of the language of the judgment limits the trial court's Rule 54(b) language to Counts I, II and III, neither party urges that the judgment be so restrictively interpreted, and from the overall context it appears to have been the intention of the trial judge to accord finality for appeal purposes to the entire judgment. We therefore have concluded that we have appellate jurisdiction over all matters raised on appeal.

In their first three counts, plaintiffs sought the following injunctive relief:

1) To restrain defendants from extending the runway;
2) To impose a reasonable curfew upon the hours of flight operations;
3) To prohibit non-standard (i.e., right-hand) turns; and
4) To require all aircraft to utilize the full runway and threshold available in their operations so as to cause aircraft to over-fly plaintiffs' lands and appurtenances only when necessary and at as high an altitude as possible.

The defendants contended that the federal statutory and regulatory scheme so pervasively regulated airport operations and aircraft noise that the power of state courts to grant injunctive relief in the area had been totally preempted. It was their position that any relief in the form of an injunction would "fly in the face of the federal system of dual control of airport noise problems by the FAA and the local airport proprietor."

The United States Supreme Court addressed the issue of federal preemption of aviation regulation in City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973). The City of Burbank had enacted a noise abatement ordinance which made it unlawful for jet aircraft to take off from Hollywood-Burbank Airport between 11:00 p.m. and 7:00 a.m. The court held that this type of local regulation of aircraft operations had been preempted because of "the pervasive nature of the federal regulation of aircraft noise." The court then explained:

It is the pervasive nature of the scheme of federal regulation of aircraft noise that leads us to conclude that there is pre-emption. As Mr. Justice Jackson stated, concurring in Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292, 303, 64 S.Ct. 950, 956, 88 L.Ed. 1283:

"Federal control is intensive and exclusive. Planes do not wander about in the sky like vagrant clouds. They move only by federal permission, subject to federal inspection, in the hands of federally certified personnel and under an intricate system of federal commands. The moment a ship taxis onto a runway it is caught up in an elaborate and detailed system of controls."

The Burbank court's preemption analysis was based upon the Federal Aviation Act of 1958, 49 U.S.C. 1301 et seq. (1976 and Supp. 1981), as amended by the Noise Control Act of 1972, 42 U.S.C. 4901 et seq. (1976 and Supp. 1981).

Central to the court's concern was that to restrict the hours during which the airport was available for outgoing flights had a direct impact on Federal Aviation Administration (FAA) control over flight operations. That agency was charged with responsibility for balancing the potentially conflicting goals of noise abatement, safety and efficiency in the area of actual flight operations. The court acknowledged the agency's expertise in regulating take-off and landing procedures and runway preferences. To permit local curfew and other local regulation of flight operations would create the possibility that inconsistent regulations in various localities would impede interstate commerce or significantly affect the flexibility of the FAA in controlling air traffic flow and safety.

The Supreme Court stated:

The Federal Aviation Act requires a delicate balance between safety and efficiency, 49 U.S.C. 1348(a), and the protection of persons on the ground. 49 U.S.C. 1348(c). Any regulations adopted by the Administrator to control noise pollution must be consistent with the 'highest degree of safety.' 49 U.S.C. 1431(d)(3). The interdependence of these factors requires a uniform and exclusive system of federal regulation if the congressional objectives underlying the Federal Aviation Act are to be fulfilled.

If we were to uphold the Burbank ordinance and a significant number of municipalities followed suit, it is obvious that fractionalized control of the timing of takeoffs and landings would severely limit the flexibility of the FAA in controlling air traffic flow. The difficulties of scheduling flights to avoid congestion and the concomitant decrease in safety would be compounded. In 1960 FAA rejected a proposed restriction on jet operations at the Los Angeles airport between 10 p.m. and 7 a.m. because such restrictions could 'create critically serious problems to all air transportation patterns.' 25 Fed.Reg. 1764-1765.

This decision, announced in 1960, remains peculiarly within the competence of FAA, supplemented now by the input of EPA. We are not at liberty to diffuse the powers given by Congress to FAA and EPA by letting the States or municipalities in on the planning. If that change is to be made, Congress alone must do it.

In our opinion the Burbank court's analysis applies with equal force to the injunctive relief sought in the plaintiffs' complaint. In addition to the plaintiffs' request for a curfew, which clearly is not permissible, the complaint requested that the court prohibit "non-standard turns" and that it require full utilization of the runway.

Attempts of this nature to abate noise by regulating flight operations have been considered and prohibited by federal courts on grounds of preemption. In Luedtke v. County of Milwaukee, 521 F.2d 387 (7th Cir. 1975), the Seventh Circuit determined that establishing flight patterns, air traffic corridors, noise control standards or rules governing emissions had been preempted. Similarly, other attempts to regulate the noise of over-flying jets have been held to be preempted. See Allegheny Airlines v. Village of Cedarhurst, 238 F.2d 812 (2d Cir. 1956); American Airlines, Inc. v. Town of Hempstead, 398 F.2d 369 (2d Cir. 1968), cert. den. 393 U.S. 1017, 89 S.Ct. 620, 21 L.Ed.2d 561 (1969).

The FAA is charged with regulating the operation of flights and with balancing the interests of safety, efficiency and noise abatement in constructing its regulations. For the state through legislative or court action to impose curfews, prohibit certain types of turns or to dictate runway utilization infringes upon the FAA's charge. We therefore hold that the trial court had no power to regulate through its injunctive powers the operation of flights, the methods of landing or takeoff of aircraft, or any other aspect of actual aircraft operation technique or scheduling.[FN 5]

[FN 5] This question of preemption of flight scheduling was considered in Williams v. Superior Court in and for County of Pima, 108 Ariz. 154, 494 P.2d 26 (1972). There the court determined that federal regulation had not preempted the field. However, Williams was decided before the United States Supreme Court decided City of Burbank v. Lockheed Air Terminal, Inc., supra. Both parties concede that, with respect to its preemption holding, Williams can no longer stand.

Several courts have recognized that, in part, the rationale for permitting airport proprietors to enforce reasonable regulations to minimize noise is based upon Griggs v. County of Allegheny, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962). See, e.g., Santa Monica Airport Association v. City of Santa Monica, 647 F.2d 3 (9th Cir. 1981); National Aviation v. City of Hayward, 418 F.Supp. 417 (N.D.Cal.1976); British Airways Board v. Port Authority of New York, 558 F.2d 75 (2d Cir. 1977) (Concorde I). In Griggs the United States Supreme Court held that an airport owner can be a "taker" under the fourteenth amendment and is liable in damages for property takings due to interference with property use resulting from aircraft operations and flying aircraft. The airport owner has thus been left with some residual control to restrict the use of the airport in order that he might limit his liability. Airport owners have also been held responsible to residents living in close proximity to airports for damages for personal injury resulting from aircraft noise. See Greater Westchester Homeowners Association v. City of Los Angeles, 26 Cal.3d 86, 160 Cal.Rptr. 733, 603 P.2d 1329 (1979), cert. den. 449 U.S. 820, 101 S.Ct. 77, 66 L.Ed.2d 22 (1980); Owen v. City of Atlanta, 157 Ga.App. 354, 277 S.E.2d 338 (1981).

Although their argument is not entirely clear, plaintiffs suggest that judicially imposed regulation of municipally owned airports somehow falls within the "proprietary regulation" exemption from federal preemption. To evaluate this we must first give further consideration to footnote 14 of Burbank and the rationale for the "proprietors' exception" to preemption.

In Burbank the proprietor was Lockheed Air Terminal, a private entity. The challenged curfew ordinance was imposed by the City of Burbank in its exercise of its police power. The question of what freedom the airport proprietor itself might have to impose curfews relative to its own airport was not before the court. The City of Burbank was clearly not a proprietor, exercising its powers as such. It was acting as a political subdivision of the state, exercising the state's police power. In footnote 14, the court only recognized that cities might sometimes be acting as proprietors, saving for future consideration the application of the preemption doctrine to ordinances or regulations enacted by a municipality in its capacity as an airport proprietor.

That the federal regulatory scheme was not intended to prohibit reasonable and nondiscriminatory regulation by airport proprietors has been developed in cases decided subsequent to Burbank. See British Airways Board v. Port Authority of New York, 564 F.2d 1002 (2d Cir. 1977) (Concorde II); British Airways Board v. Port Authority of New York, 558 F.2d 75 (2d Cir. 1977) (Concorde I); National Aviation v. City of Hayward, 418 F.Supp. 417 (N.D.Cal.1976). In Concorde I, supra, the Second Circuit held that the Port Authority, as the proprietor of J.F.K. Airport, could impose a reasonable, nondiscriminatory ban on supersonic aircraft. However, later, in Concorde II, the court enjoined the enforcement of the ban, determining that the Port Authority had delayed for too long the development of reasonable noise regulations. In Concorde II, the Second Circuit described the role Congress had reserved for airport proprietors in the management of aviation as "extremely limited". 564 F.2d at 1010. It stated:

Common sense, of course, required that exclusive control of airspace allocation be concentrated at the national level, and communities were therefore preempted from attempting to regulate planes in flight. See Allegheny Airlines v. Village of Cedarhurst, 238 F.2d 812 (2d Cir. 1956); American Airlines v. Town of Hempstead, 398 F.2d 369 (2d Cir.), cert. denied 393 U.S. 1017, 89 S.Ct. 620, 21 L.Ed.2d 561 (1969). The task of protecting the local population from airport noise, however, has fallen to the agency, usually of local government, that owns and operates the airfield. Air Transport Assn. v. Crotti, 389 F.Supp. 58 (N.D.Cal.1975) (three-judge court); National Aviation v. City of Hayward, 418 F.Supp. 417 (N.D.Cal.1976).

The maintenance of a fair and efficient system of air commerce, of course, mandates that each airport operator be circumscribed to the issuance of reasonable, nonarbitrary and nondiscriminatory rules defining the permissible level of noise which can be created by aircraft using the airport. Concorde I, supra at 84. We must carefully scrutinize all exercises of local power under this rubric to insure that impermissible parochial considerations do not unconstitutionally burden interstate commerce or inhibit the accomplishment of legitimate national goals.