Harrison et al. v. Schwartz et al.
Cite as: 319 Md. 360, 572 A.2d 528


Robert E. HARRISON et al.
Bernard A. SCHWARTZ et al.

No. 89 Sept. Term 1989

April 19, 1990


David K. Bowersox (William B. Dulany, Dulany, Parker & Scott, on brief), Westminster, for petitioners.

John T. Willis (Weinberg and Green, on brief), Baltimore, Charles W. Thompson, Jr., County Atty., Westminster, for respondents.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE and ADKINS, JJ., and HOWARD S. CHASANOW [FN *], Judge, Specially Assigned.

[FN *] Howard S. Chasanow, a judge of the Seventh Judicial Circuit, was specially assigned to the Court of Appeals at the time the case was argued. He was sworn in as a judge of the Court on 17 January 1990.

ADKINS, Judge.

When the Carroll County Board of Zoning Appeals granted a conditional use for a privately owned airport in 1982, it attached to that grant several conditions. One of them limited the frequency of take-offs of glider-towing aircraft; another established a curfew for the operation of those aircraft. Both conditions were designed to reduce the effect of aircraft engine noise on residential properties near the airport. Both are invalid. They trespass upon a field that has been impliedly preempted by federal law. City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973). A sketch of the pertinent facts before us places the preemption issue in context.


In 1972 petitioner Robert E. Harrison (Harrison) obtained from the Board of Zoning Appeals for Carroll County (the Board) a conditional use permit to operate a "private airport site and drop zone for parachutists" on a portion of his farm located near Woodbine in Carroll County. The parachutists, who used a single aircraft, were members of a small skydiving club which engaged in that activity mostly on weekends during the warmer months. The conditional use was subject to a condition requiring the establishment of parking facilities and to continued approval by the State Aviation Commission.

As time passed the parachuting activity diminished. By the early 1980's, petitioner Jerry Gaudet was leasing the Woodbine airport and running petitioner Bay Soaring, a glider organization, which used the airport for glider operations. (We shall refer to petitioners collectively as "Bay Soaring"). The airport stayed open every day. The gliders ordinarily were towed aloft by aircraft; sometimes as many as 90 flights a day were generated. Bay Soaring solicited the public to take lessons and rides at Woodbine. The facility had obtained from the State Aviation Administration an airport operating certificate designating the "Woodbine Glider Port" to operate as a "Licensed Private/Commercial Airport."

Harrison's neighbors (respondents Bernard A. Schwartz and others, hereinafter collectively "the Neighbors") were not pleased. Their protests resulted in a 1982 hearing before the Board, after which the Board concluded that the use of the airport had expanded beyond the limits of the 1972 conditional use. Under protest, Bay Soaring applied for a new conditional use permit. [FN 1]

[FN 1] Bay Soaring also appealed from the Board's 1982 decision. That appeal was eventually disposed of adversely to Bay Soaring. It is not before us. See County Comm'rs of Carroll County v. Gaudet, No. 1270, Sept. Term, 1986 (filed 23 June 1987) (unreported).
Hearings were held on that application. The Neighbors opposed it, expressing concern about aircraft engine noise, among other things. The Board granted a new permit, but attached to it eight conditions. Two of them are the basis of the controversy in this case. They are:
2. Aircraft take-offs shall be separated by intervals of at least 15 minutes in order to minimize the adverse effects of aircraft engine noise upon the residents of the surrounding area and to reduce the intensification of the use of the property in what is otherwise a primarily rural residential area.

3. Aircraft take-offs shall not be made before 9:00 a.m. or later than 7:00 p.m. on any day.

A third condition imposed by the Board was:
7. [Bay Soaring] will design take-off and landing patterns in such a way that they will minimize the adverse effect upon the neighboring residents. In addition [Bay Soaring] shall require people taking-off and landing from the airfield to be familiar with the landing and take-off patterns and to use them. [[FN2]]

FN2. Condition 7 is not at issue in this appeal.

When Bay Soaring appealed, the Circuit Court for Carroll County found that "[i]n imposing the ... Conditions, airport noise appears to have been the Board's paramount concern...." It held that these three conditions were invalid because of federal preemption. It remanded to the Board for further proceedings. The Neighbors and Carroll County (the County) appealed to the Court of Special Appeals, which held that condition 7, dealing with the conduct of flight in navigable airspace, was preempted. But it thought conditions 2 and 3 were not preempted. At the behest of Bay Soaring, we issued a writ of certiorari. 317 Md. 440, 564 A.2d 784 (1989).


The United States Constitution "and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States [are] the supreme Law of the Land." U.S. Const. art. VI, cl. 2. See also Md.Decl. of Rights, Art. 2. Because of this supremacy, valid federal legislation and regulations may preempt state or local laws or regulatory actions. When valid federal law actually conflicts with state law, the former preempts the latter. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 621, 78 L.Ed.2d 443, 452 (1984). And "[i]f Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted." Id. We have recognized that "[i]f the federal law expressly states a preemptive intent, that intent will govern." Becker v. Litty, 318 Md. 76, 86, 566 A.2d 1101, 1106 (1989) (citing Hillsborough County v. Automated Medical Labs., 471 U.S. 707, 713, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714, 721 (1985)). Moreover, even absent express preemption, when "a federal statute made 'in Pursuance' of the Constitution is so comprehensive that [it occupies the field leaving] no room for state action," preemption also occurs. Becker, 318 Md. at 86, 566 A.2d at 1106. We deal here with implied preemption of the "occupy-the-field" variety.

The Commerce Clause of the United States Constitution (art. I, s. 8, cl. 3) gives Congress the power to control air traffic. City of Burbank, 411 U.S. at 625, 93 S.Ct. at 1855-1856, 36 L.Ed.2d at 549. Pursuant to that power, Congress has enacted the Federal Aviation Act of 1958, 72 Stat. 731, and amended it by the Noise Control Act of 1972, 86 Stat. 1234. See 49 U.S.C. App. s. 1301 et seq. The Noise Control Act provides that

In order to afford present and future relief and protection to the public health and welfare from aircraft noise and sonic boom, the FAA, after consultation with the Secretary of Transportation and with EPA, shall prescribe and amend standards for the measurement of aircraft noise and sonic boom and shall prescribe and amend such regulations as the FAA may find necessary to provide for the control and abatement of aircraft noise and sonic boom, including the application of such standards and regulations in the issuance, amendment, modification, suspension, or revocation of any certificate authorized by this subchapter. No exemption with respect to any standard or regulation under this section may be granted under any provision of this chapter unless the FAA shall have consulted with EPA before such exemption is granted, except that if the FAA determines that safety in air commerce or air transportation requires that such an exemption be granted before EPA can be consulted, the FAA shall consult with EPA as soon as practicable after the exemption is granted.
49 U.S.C.App. s 1431(b)(1). Under the same section, the EPA is required to submit to the FAA proposed regulations to provide such control and abatement of aircraft noise and sonic boom (including control and abatement through the exercise of any of the FAA's regulatory authority over air commerce or transportation or over aircraft or airport operations) as EPA determines is necessary to protect the public health and welfare. 49 U.S.C.App. s 1431(c)(1). In addition, numerous regulations bear on the topic of control of aircraft noise. See, e.g., 14 C.F.R. Parts 36.1-36.7, 36.9, 36.101, 36.103, 36.201, 36.301, 36.501 (1989). The validity of the statutes and regulations is not questioned. Their implied preemptive effect is questioned. But that issue has in large part been resolved by the Supreme Court of the United States.

That Court's decision in City of Burbank, supra, is the "preeminent authority on the question of federal preemption in the area of aviation." Blue Sky Entertainment, Inc. v. Town of Gardiner, 711 F.Supp. 678, 691 (N.D.N.Y.1989). Furthermore, City of Burbank speaks directly to the problem of local efforts to control aircraft engine noise. It is upon that problem that the cited cases focus; we need not decide what the full preemptive reach of federal aviation law may be. See Ward v. State, 280 Md. 485, 495-496, 374 A.2d 1118, 1123-1124 (1977), cert. denied, 434 U.S. 1011, 98 S.Ct. 723, 54 L.Ed.2d 754 (1978) ("Congress has not occupied the entire field of aeronautics by the Federal Aviation Act of 1958").

In City of Burbank, the city enacted an ordinance that made it unlawful for the operator of the privately owned Hollywood-Burbank Airport to allow any pure jet aircraft to take off between 11:00 p.m. of one day and 7:00 a.m. of the next. This curfew was markedly similar to condition 3 as imposed by the Board in the case before us. The Supreme Court concluded that federal preemption -- implied from federal occupation of the field of aircraft noise regulation -- rendered the ordinance unconstitutional. 411 U.S. at 633, 93 S.Ct. at 1859-1860, 36 L.Ed.2d at 554.

The Supreme Court recognized that "'we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress....'" City of Burbank, 411 U.S. at 633, 93 S.Ct. at 1859, 36 L.Ed.2d at 553 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447, 1459 (1947)). It recognized that the federal legislation before it in City of Burbank contained "no express provision of pre-emption...." 411 U.S. at 633, 93 S.Ct. at 1859, 36 L.Ed.2d at 553. But it pointed out that a "'scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it....'" Id. (again quoting Rice).

The Court examined at length the provisions of the Federal Aviation Act and the Noise Control Act. It scrutinized the legislative history, which included a Senate Report and a letter from the Secretary of Transportation. The Senate Report explained, "'States and local governments are preempted from establishing or enforcing noise emission standards for aircraft unless such standards are identical to standards prescribed under [the Noise Control Act of 1972].'" The letter from the Secretary of Transportation to Senator Monroney declared that "'State and local governments will remain unable to use their police powers to control aircraft noise by regulating the flight of aircraft.'" 411 U.S. at 634-635, 93 S.Ct. at 1860, 36 L.Ed.2d at 554-555 (quoting S.Rep. No. 92-1160, pp. 10-11, 1972 U.S.Code Cong. & Admin. News 4655, 4663 and 1968 U.S.Code Cong. & Admin. News 2688, 2693-2694). It gave weight to the remarks of the Chairman of the House Committee on Interstate and Foreign Commerce to the effect that "we do not want" cities and states "to pass noise regulations." 411 U.S. at 636-637, 93 S.Ct. at 1861, 36 L.Ed.2d at 555 (quoting 118 Cong.Rec. 37083 (1972)). It noted Senator Tunney's view that under the 1972 Act there would be "'proposed means of reducing noise in airport environments through the application of emission controls on aircraft, the regulation of flight patterns and aircraft and airport operations, and modifications in the number, frequency, or scheduling of flights [as well as] ... the imposition of curfews on noisy airports....'" 411 U.S. at 637, 93 S.Ct. at 1861, 36 L.Ed.2d at 555-556 (quoting 118 Cong.Rec. 37317 (1972)) [emphasis added in Supreme Court opinion].

The Court concluded that "[i]t is the pervasive nature of the scheme of federal regulation of aircraft noise that leads us to conclude that there is pre-emption." 411 U.S. at 633, 93 S.Ct. at 1859-1860, 36 L.Ed.2d at 554. The Circuit Court for Carroll County found City of Burbank dispositive; the Court of Special Appeals attempted to distinguish the case. There are distinctions, but they make no constitutional difference.

The intermediate appellate court pointed out that Bay Soaring uses the Woodbine Airport for recreational flights while the Hollywood-Burbank Airport is commercial. Actually, the record shows that Bay Soaring is engaged in a commercial operation, but the Court of Special Appeals correctly observed that "[t]he airplanes involved in Bay Soaring's enterprise are not used for the transport of goods or persons in the stream of commerce" and that "FAA control over glider port operations is minimal." [FN 3] Schwartz v. Harrison, No. 1425, Sept. Term, 1988 (filed 4 May 1989) (unreported) [slip op. at 4]. It thought that Board condition 2 was not preempted because glider take-offs were not subject to FAA control. Id., slip op. at 3-4. But see n. 3, supra. It thought that condition 3 was not preempted because "[t]he City of Burbank Court was concerned with the congestion and the loss of efficiency that might be caused by the imposition of a curfew at a commercial airport" -- a concern not present in the case of the Woodbine facility. Id., slip op. at 5.

[FN 3] FAA regulations nevertheless provide some control, including a requirement that under some circumstances the tow plane pilot notify "the FAA flight service station ... before conducting any towing operations...." 14 C.F.R. 91.17(a)(4) (1989).
Obviously, the small Woodbine airport is very different from Hollywood- Burbank. Both, however, are privately owned. The City of Burbank holding applies to privately owned airports as well as publicly owned ones. The Supreme Court did not make an exception for small airports that do not involve inter-airport commercial cargo or passenger flights, or for activities not expressly governed by federal statute or regulation. [FN 4] If we were dealing with the sort of preemption that arises from conflict between federal and state enactments, these considerations might be pertinent. But we are dealing with preemption by occupation of the field. Once the field is occupied by the federal government, neither state nor local government may enter it. And occupation of the field does not mean that every blade of grass within it must be subject to express federal control; it means only that Congressional intent demonstrates that the area is subject to exclusive federal control, whether potential or actual.
[FN 4] City of Burbank does hold open the possibility that an airport proprietor (including a municipality) may issue valid regulations controlling airport noise. 411 U.S. at 635-636 n. 14, 93 S.Ct. at 1861 n. 14, 36 L.Ed.2d at 555 n. 14. We shall have occasion to refer to this exception later. For now, it is enough to note that Carroll County is not the proprietor of Woodbine Airport.
Among the concerns of the Supreme Court in City of Burbank was the efficient and safe use of airspace and "the flexibility of [the] FAA in controlling air traffic flow." 411 U.S. at 639, 93 S.Ct. at 1862, 36 L.Ed.2d at 557 [footnote omitted]. Any nonproprietary and nonfederal attempt to control noise was preempted if it might affect that air traffic flow. Hence, "the pervasive control vested in EPA and in [the] FAA under the 1972 Act seems ... to leave no room for local curfews or other local [noise] controls." 411 U.S. at 638, 93 S.Ct. at 1862, 36 L.Ed.2d at 556.

The scope of that ruling is emphasized by Justice (now Chief Justice) Rehnquist's dissent in City of Burbank, 411 U.S. 640, 93 S.Ct. 1863, 36 L.Ed.2d 558. Writing for himself and three of his colleagues, Justice Rehnquist read legislative history quite differently from the way the majority interpreted it. He argued that noise regulation was a matter of particularly local concern, 411 U.S. at 643, 93 S.Ct. at 1864, 36 L.Ed.2d at 559, and that the legislative history showed an intent not to diminish the power to abate noise through local zoning or other regulations. 411 U.S. at 650, 93 S.Ct. at 1868, 36 L.Ed.2d at 563. He believed that federal preemption extended only to the regulation of technological methods of reducing the output of noise by aircraft. 411 U.S. at 651, 93 S.Ct. at 1868, 36 L.Ed.2d at 563-564. These views, however, were rejected by the majority, which clearly had a vastly more expansive view of the extent of the preemption. It is the majority view that binds us.

The reach of City of Burbank's preemption holding is also confirmed by what appears to be almost uniform interpretation by other courts. Indeed, we have been unable to discover a case (other than the opinion of the Court of Special Appeals) that squarely supports the position of the Neighbors and the County.

The Neighbors, for example, cite Santa Monica Airport Ass'n v. City of Santa Monica, 659 F.2d 100 (9th Cir.1981). In that case, a curfew and other noise control regulations were upheld. But the City of Santa Monica, as the court pointed out, was the proprietor of the airport in question, and thus within the proprietor exception to the general rule of City of Burbank. 659 F.2d at 103-104.

The proprietor exception, as various courts have recognized, is based on the fact that an airport proprietor may be liable for excessive noise emanating from aircraft that use the airport. See, e.g., Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962); United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946). To guard against liability, the airport proprietor should be able to promulgate reasonable noise regulations. It was that window of nonpreemption that the Supreme Court left open in City of Burbank, see n. 4, supra, and a number of courts have relied on it to hold that proprietary regulations of aircraft noise are not preempted. For additional cases explaining the proprietor's exception, see, for example, City of Blue Ash v. McLucas, 596 F.2d 709, 712 (6th Cir.1979); United States v. New York, 552 F.Supp. 255 (N.D.N.Y. 1982), cert. denied, 466 U.S. 936, 104 S.Ct. 1907, 80 L.Ed.2d 456, (1984); National Aviation v. City of Hayward, 418 F.Supp. 417 (N.D.Cal.1976); Air Transport Ass'n of America v. Crotti, 389 F.Supp. 58 (N.D.Cal.1975). As we already have pointed out, Carroll County is not the proprietor of Woodbine Airport; the proprietor exception is not available to it.

Continued in Part Two