COUNSEL:

Scott W. Schreffler, Seneca, for appellant.

Gerald L. Cassady, Dist. Atty., Franklin, for Com., appellee.

Before WIEAND, POPOVICH and HESTER, JJ.

WIEAND, Judge.

Without prior approval by the Pennsylvania Department of Transportation, Kim T. Rogers erected at his Dairy Queen Restaurant in Venango County a ninety-five (95) foot sign which penetrated the approach area to runway 02 at the Chess Lamberton Airport. [FN 1] Rogers was cited for violating 74 Pa.C.S. s. 5701(a) and (b). After being found guilty before a district justice, Rogers appealed to the Court of Common Pleas of Venango County. There, following a trial de novo, Rogers was again found guilty of violating the statute. Post-trial motions were denied, and Rogers was ordered to pay a fine of three hundred ($300.00) dollars. On appeal, [FN 2] Rogers argues that in the absence of an air easement or a zoning ordinance regulating the height of signs, the enforcement of Section 5701 of the Aviation Code was an unconstitutional taking of his property without just compensation. The Commonwealth argues, however, that 74 Pa.C.S. s. 5701 is a proper exercise of the police power and, as such, can be enforced against Rogers without first making compensation.

[FN 1] The Chess Lamberton Airport is located partly in the townships of Franklin and Sandycreek and is owned and operated by Venango County.

[FN 2] Although the appeal in this case was filed prior to the entry of a judgment of sentence, Pa.R.A.P. 905(a) provides, in pertinent part, that "[a] notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof." Accordingly, we will consider this appeal as properly taken from the judgment of sentence. See: Commonwealth v. Hamaker, 373 Pa.Super. 510, 512-513 n. 4, 541 A.2d 1141, 1142 n. 4 (1988).

Neither party has objected to the jurisdiction of this Court to hear the appeal; and, therefore, pursuant to Pa.R.A.P. 741(a), we have not considered whether an appeal would more properly lie in the Commonwealth Court.

(a) Obstructions to aircraft within approach area. -- A person who erects and maintains any smokestack, flag pole, elevated tank, radio station tower, antenna, building, structure, any object of natural growth or other obstruction to the operation of aircraft within an approach area that extends above an inclined plane without first obtaining prior approval thereof from the department commits a summary offense. Each day a violation of this subsection continues constitutes a separate offense.

(b) Structures in close proximity to airport. -- A person who erects a new structure or adds to an existing structure in violation of guidelines or regulations adopted by the Federal Aviation Administration of the United States Department of Transportation, or who erects the structure with respect to the airport without, in either event, first obtaining prior approval from the department, commits a summary offense.

(c) Definition. -- As used in this section the term "approach area" includes all that area lying within and above an inclined plane, starting at each end of each runway or landing strip of a public-use airport, as described by guidelines or regulations adopted by the Federal Aviation Administration of the United States Department of Transportation.

Lawfully enacted legislation enjoys a presumption of constitutionality. All doubts relating to the constitutionality of a challenged enactment must be resolved in its favor. Edmonds v. Western Pennsylvania Hospital Radiology Associates, 414 Pa.Super. 567, 574, 607 A.2d 1083, 1087 (1992). A party raising a constitutional challenge bears the burden of rebutting the presumption of constitutionality by a "clear, palpable, and plain demonstration that the statute violates a constitutional provision." James v. Southeastern Pennsylvania Transportation Authority, 505 Pa. 137, 142, 477 A.2d 1302, 1304 (1984). See also: Singer v. Sheppard, 464 Pa. 387, 393, 346 A.2d 897, 900 (1975).

With respect to the takings clause of the United States Constitution, the United States Supreme Court has said:

The Takings Clause of the Fifth Amendment provides: "[N]or shall private property be taken for public use, without just compensation." Most of our cases interpreting the Clause fall within two distinct classes. Where the government authorizes a physical occupation of property (or actually takes title), the Takings Clause generally requires compensation. See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426, 102 S.Ct. 3164, 3171, 73 L.Ed.2d 868 (1982). But where the government merely regulates the use of property, compensation is required only if considerations such as the purpose of the regulation or the extent to which it deprives the owner of the economic use of the property suggest that the regulation has unfairly singled out the property owner to bear a burden that should be borne by the public as a whole. See, e.g., Penn Central Transp. Co. v. New York City, 438 U.S. 104, 123-125, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978). The first category of cases requires courts to apply a clear rule; the second necessarily entails complex factual assessments of the purposes and economic effects of government actions.

[FN 3] Appellant has not asserted a violation of the takings clause under Article 1, s. 10 of the Pennsylvania Constitution. Accordingly we will confine our analysis to the takings clause of the Fifth Amendment of the United States Constitution. We note, however, that Article 1, s. 10 of the Pennsylvania Constitution employs language similar to that of the Fifth Amendment, providing in pertinent part: "[N]or shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured." Pa.Constitution Article 1, s. 10.

The police power is the inherent power of a body politic to enact and enforce laws for the promotion of the general welfare. "It has long been recognized that property rights are not absolute and that persons hold their property 'subject to valid police regulation, made, and to be made, for the health and comfort of the people....'" De Paul v. Kauffman, 441 Pa. 386, 393, 272 A.2d 500, 504 (1971), quoting Nolan v. Jones, 263 Pa. 124, 131, 106 A. 235, 237 (1919). It must be recognized that one who challenges the constitutionality of the exercise of the state's police power, affecting a property interest, must overcome a heavy burden of proof to sustain that challenge. See, e.g., Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962); Miller v. Schoene, 276 U.S. 272, 48 S.Ct. 246, 72 L.Ed. 568 (1928); Hadacheck v. Los Angeles, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348 (1915); Philadelphia v. Watt, 162 Pa.Super. 433, 57 A.2d 591 (1948).

Police power should not be confused with that of eminent domain. Police power controls the use of property by the owner, for the public good, its use otherwise being harmful, while eminent domain and taxation take property for public use. Under eminent domain, compensation is given for property taken, injured or destroyed, while under the police power no payment is made for a diminution in use, even though it amounts to an actual taking or destruction of property. Under the 14th Amendment, property cannot be taken except by due process of law. Regulation under a proper exercise of the police power is due process, even though a property in whole or in part is taken or destroyed. The conditions on which its legitimate exercise is predicated should actually exist or their happening be so likely that restraint is necessary, similar to a court issuing a restraining order for injuries done or threatened to persons or property. Likewise, there should be a reasonable and substantial relation between the thing acted on and the end to be attained, one that promotes health, safety or general welfare, necessary to the common good, and a reasonable demand for regulation, not one that is merely an unnecessary "experimentation [or interference] with the fundamental rights of the individual". Truax v. Corrigan, 257 U.S. 312, 338 [42 S.Ct. 124, 131, 66 L.Ed. 254 (1921)].

While the tribunal to determine the proper exercise is in the first instance the legislature, the ultimate decision rests with the courts. If after investigating there is doubt as to whether the statute is enacted for a recognized police object, or if, conceding its purpose, its exercise goes too far, it then becomes the judicial duty to declare the given exercise of the police power invalid. Nolan v. Jones, 263 Pa. 124, 127 [106 A. 235]; Miller v. Los Angeles, [195 Cal. 477] 234 Pac. (Cal.) 381 [ (1925)]; Walls v. Midland Carbon Co., 254 U.S. 300 [41 S.Ct. 118, 65 L.Ed. 276 (1920)]. "The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police power is not final or conclusive, but is subject to the supervision of the courts". Lawton v. Steele, 152 U.S. 133, 137 [14 S.Ct. 499, 501, 38 L.Ed. 385 (1894)]. The power of judicial investigation does not concern itself with the wisdom of the policy emanating from the legislative branch, or whether the best of all possible means of achieving the desired result has been selected. It is concerned only with the questions of whether the statute has a recognized police purpose, and whether it has a reasonable relation to the object to be attained.

Generally, the right concerns, as here, property and rights issuing out of it. No matter how seemingly complete our scheme of private ownership may be under our system of government, all property is held in subordination to the right of its reasonable regulation by the government clearly necessary to preserve the health, safety or morals of the people. Obedience to such regulation is not taking property without due process; that clause does not qualify the police power: C., B. & Q. Ry. Co. v. Drainage Commissioners, 200 U.S. 561 [26 S.Ct. 341, 50 L.Ed. 596 (1906)]; Salem v. Maynes, 123 Mass. 372 [ (1877) ]; In re Cherry, 201 App.Div.N.Y. 856, 193 N.Y.S. 57, affirmed 234 N.Y. 607, 138 N.E. 465 [(1922)]. Property is held under the implied obligation that the owner shall use it in such way as not to be injurious to the community: Windsor v. Whitney, 95 Conn. 357, 111 Atl. 354 [(1920) ].

Pursuant to the Federal Aviation Act of 1958, 49 U.S.C. s 1301 et seq., Congress exercised its power under the commerce clause to regulate air commerce by providing that there is a "public right of freedom of transit through the navigable airspace of the United States." 49 U.S.C. 1304. See: Shipp v. Louisville and Jefferson County Air Board, 431 S.W.2d 867, 869 (Ky.1968), cert. denied, 393 U.S. 1088, 89 S.Ct. 880, 21 L.Ed.2d 782 (1969). See also: County of Westchester v. Town of Greenwich, Conn., 793 F.Supp. 1195, 1203 (S.D.N.Y.1992); Jackson Municipal Airport Authority v. Wright, 232 So.2d 709, 711 (Miss.1970). "Navigable airspace" is defined at 49 U.S.C. 1301(29) to "include airspace needed to insure safety in take-off and landing of aircraft." Thus, "[t]he navigable airspace of the United States has been incorporated into the public domain." County of Westchester v. Town of Greenwich, Conn., supra. See also: City of Oakland v. Nutter, 13 Cal.App.3d 752, 761, 92 Cal.Rptr. 347, 352 (1970); Shipp v. Louisville and Jefferson County Air Board, supra.

It has been observed that "the right to create and maintain obstructions and hazards on private property adjoining an airport may be limited by operation of the Federal Aviation Act of 1958, which places airspace needed to insure safety in take-off and landing as well as the airspace above the prescribed minimum altitude of flight within the public domain." 2A C.J.S., Aeronautics & Aerospace, s. 73, at 209 (footnote omitted). It is also "generally recognized that a state, or a municipality acting pursuant to legislative authorization may, in the exercise of the police power, impose restrictions upon the height of buildings and other structures by reasonable and nondiscriminatory regulations where such restrictions have a substantial relation to the public health, safety, and welfare...." 8 Am.Jur.2d, Aviation, s. 59, at 417 (footnote omitted). Nevertheless, the privilege to use the navigable air space does not automatically mean "freedom from liability for damage or demonstrable pecuniary loss to property owners below. Flights are not immune from private litigation, whether in the process of take-off or landing." Martin v. Port of Seattle, 64 Wash.2d 309, 316, 391 P.2d 540, 545 (1964), cert. denied, 379 U.S. 989, 85 S.Ct. 701, 13 L.Ed.2d 610 (1965). Thus, "[l]ow altitude flights which unreasonably interfere with the use and enjoyment of the land represent a trespass or partial taking creating a right to compensation." County of Westchester v. Town of Greenwich, Conn., supra at 1203. See: United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946). "Even when such flights fall within the navigable airspace, and therefore use of this low altitude airspace is authorized, compensation is still required for the taking." County of Westchester v. Town of Greenwich, Conn., supra at 1204. See: Griggs v. County of Allegheny, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962).

The Federal Aviation Act at 49 U.S.C. s 1501 requires that any person who proposes to construct or make alterations to a structure in close proximity to an airport must give notice of such proposed construction to the FAA. See: 14 C.F.R. s 77.13 (FAA regulations governing when notice of construction is required). The FAA then makes a determination as to whether or not the proposed construction constitutes a hazard to air navigation. However, such a determination by the FAA has no enforceable legal effect. "The FAA is not empowered to prohibit or limit proposed construction it deems dangerous to air navigation." Aircraft Owners and Pilots Ass'n v. FAA, 600 F.2d 965, 967 (D.C.Cir.1979). See also: Air Line Pilots' Association International v. FAA, 446 F.2d 236 (5th Cir.1971). Rather, such regulation has been left to the states. Thus, although Congress has concerned itself with the hazards posed by tall structures, it has left untouched the legal enforcement of standards, which are peculiarly adapted to local regulation. Therefore, the states may legislate concerning such matters. See: Aeronautics Commission of Indiana v. State ex rel. Emmis Broadcasting Corp., 440 N.E.2d 700, 706 (Ind.App.1982). See also: Kupster Realty Corp. v. State, 93 Misc.2d 843, 848-850, 404 N.Y.S.2d 225, 230-231 (1978).

In Pennsylvania, the Aviation Code provides:

s. 5501. Ownership of space
(a) General rule. -- The ownership of the space over and above the lands and waters of this Commonwealth is declared to be vested in the owner of the surface beneath, but the ownership extends only so far as is necessary to the enjoyment of the use of the surface without interference and is subject to the right of passage or flight of aircraft. Flight through the space over and above land or water, at a sufficient height and without interference to the enjoyment and use of the land or water beneath, is not an actionable wrong unless the flight results in actual damage to the land or water, or property thereon or therein, or use of the land or water beneath.