Carroll County asserts that Wright v. County of Winnebago, 73 Ill.App.3d 337, 29 Ill.Dec. 347, 391 N.E.2d 772 (1979), demonstrates the validity of the Board's conditions. It does not. In Wright local authorities, acting under a zoning ordinance, denied the Wrights permission to establish a restricted aircraft landing area from which Mr. Wright proposed to commute to work by plane. There is some attempt in Wright to distinguish City of Burbank on grounds similar to those put forward by the Court of Special Appeals here. 73 Ill.App.3d at 343-344, 29 Ill.Dec. 347, 391 N.E.2d at 777-778. But the essential rationale in Wright is that local government may exercise zoning authority to prohibit a restricted landing area altogether. Id. at 344, 29 Ill.Dec. 347, 391 N.E.2d at 777-778. To deny permission to create an airport-like facility does not invade the noise-control field that is federally occupied, for that sort of zoning denial cannot affect the way in which aircraft operate in navigable airspace.

Indeed, in Garden State Farms, Inc. v. Bay, 77 N.J. 439, 447, 390 A.2d 1177, 1181 (1978), relied on by the Neighbors and the County, the New Jersey Supreme Court conceded that state and local authority over the operation and navigation of aircraft was preempted. The court held, however, that a local zoning ordinance could validly prohibit a small helistop. To say that local authority may use its zoning power to ban a certain use is not the same as to say that it may permit a use subject to conditions that affect air navigation. City of Burbank does not preempt all state and local zoning power with respect to airports. A zoning ordinance that does not regulate aircraft noise emissions or the actual conduct of flight operations may withstand a preemption argument. Faux-Burhans v. Frederick County, 674 F.Supp. 1172 (D.M.1987), aff'd without opinion, 859 F.2d 149 (4th Cir.1988), cert. denied, 488 U.S. 1042, 109 S.Ct. 869, 102 L.Ed.2d 992 (1989). See also Gateway Motels, Inc. v. Monroeville, 106 Pa.Commw. 42, 525 A.2d 478 (1987) (zoning conditions requiring alarm system and installation of fire equipment at heliport not preempted under City of Burbank ). The problem before us is that Board conditions 2 and 3 do both. Local government may not adopt noise abatement plans that impinge on aircraft operations. San Diego Unified Port District v. Gianturco, 651 F.2d 1306 (9th Cir.1981), cert. denied, Department of Transportation v. San Diego Unified Port District, 455 U.S. 1000, 102 S.Ct. 1631, 71 L.Ed.2d 866 (1982) (striking down curfew).

The Neighbors also take comfort from cases such as Bieneman v. City of Chicago, 864 F.2d 463 (7th Cir.1988), cert. denied, 490 U.S. 1080, 109 S.Ct. 2099, 2100, 104 L.Ed.2d 661 (1989), but Bieneman is cold comfort for them. Bieneman was an action to recover damages by one adversely affected by noise from O'Hare Airport. As Judge Easterbrook points out, for the court, "Bieneman wants damages, not regulation" and City of Burbank dealt with regulation. 864 F.2d at 472.

The Bieneman court held that even though the substantive area of aircraft noise regulation was preempted by federal law, common law remedies were not. 864 F.2d at 471. That is also the holding of Wood v. City of Huntsville, 384 So.2d 1081 (Ala.1980). In that case Dr. Wood's neighbors sought to enjoin his operation of a helicopter from his roof. The Supreme Court of Alabama reasoned that "[i]n the specific area of noise control, state and local governments cannot use their police powers to control noise by regulating the flight of planes." Id. at 1084. But it held that liability in nuisance might exist despite federal regulation of airport activities. Id. at 1085. Of course, neither the Neighbors nor Carroll County are suing for money damages because of airport noise or in nuisance. Rather, the County is seeking to use its "police powers to control noise by regulating the flight of planes."

It is that sort of regulation that has been repeatedly invalidated on the ground of federal preemption. See, e.g., Pirolo v. City of Clearwater, 711 F.2d 1006 (11th Cir.1983) (curfew and air traffic pattern ordinances preempted); Northeast Phoenix Homeowners' Ass'n v. Scottsdale Municipal Airport, 130 Ariz. 487, 636 P.2d 1269 (App.1981) (judicially-imposed curfew preempted); Gary Leasing Inc. v. Town of Pendleton, 127 Misc.2d 194, 485 N.Y.S.2d 693 (N.Y.Sup.Ct.1985) (curfew and limitation on maximum number of planes that could be based at airport preempted). [FN 5]

[FN 5] For a list of some 13 earlier decisions from several federal circuits and six states that have accepted, "without contrary authority" the "proposition that the federal government has preempted the area of flight control regulation to eliminate or regulate noise," see San Diego Unified Port District v. Gianturco, 651 F.2d 1306, 1315 n. 22 (9th Cir.1981), cert. denied, Department of Transportation v. San Diego Unified Port District, 455 U.S. 1000, 102 S.Ct. 1631, 71 L.Ed.2d 866 (1982). We note, too, that in Ward v. State, 280 Md. 485, 496, 374 A.2d 1118, 1124 (1977), cert. denied, 434 U.S. 1011, 98 S.Ct. 723, 54 L.Ed.2d 754 (1978), we referred to City of Burbank's holding with respect to noise control preemption, but construed the holding "as limited to that area of aeronautics."

[FN 6] The Neighbors aver that Congressional action since City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973), has modified the holding of that and other cases by showing a less preemptive Congressional intent. They cite the Aviation Safety and Noise Abatement Act of 1979 (49 U.S.C. App. ss. 2101 et seq.) 101 Stat. 1489, 1523, as well as the Airport and Airway Improvement Act of 1982 (49 U.S.C.App. ss. 2201 et seq.) 101 Stat. 1487-1507. To these we might add the Airport Noise Compatibility Planning Regulations of 1981, 14 C.F.R. 150 (1989), the Airline Deregulation Act of 1978, 49 U.S.C.App. 1305(a) and (b), 92 Stat. 1708, as amended by 98 Stat. 1709, and the Aviation Noise Abatement Policy of 1976, U.S. Department of Transportation (November 18, 1976). See Bennett, Airport Noise Litigation, 47 J.Air.L. & Com. 449, 452-453 (1982). The Neighbors see support for their view in some legislative history of the 1979 Act emphasizing state and local responsibility for assuring that land use planning and zoning "are compatible with present and projected aircraft noise exposure in the area." S.Rep. No. 52, 96 Cong. 2d Sess. (1980), 1980 U.S.Code Cong. & Admin. News 89, 91. What this language deals with is not local control of aircraft noise but local zoning to keep residential and other incompatible activities away from airports. See Greenberg v. State, 66 Md.App. 24, 502 A.2d 522, cert. denied, 305 Md. 621, 505 A.2d 1342 (1986) (discussing noise zones under Maryland airport zoning law; Md.Code (1977, 1989 Supp.), ss. 5-801 through 5-823 of the Transportation Article).

Review of post-City of Burbank federal airway legislation and the numerous regulations adopted pursuant thereto shows that the federal presence in the field has become even more pervasive than it was in 1973. No court has agreed with the Neighbors that this legislation has tended to ameliorate the holding of City of Burbank. See, e.g., San Diego Unified Port District, 651 F.2d at 1313 n. 15 (Acts subsequent to City of Burbank manifest Congress's continuing intent to preempt local regulation).

The Board's condition 3 -- the curfew -- falls directly within the preemption rule of City of Burbank as well as that of other cases we have cited. It is plainly an attempt to limit aircraft noise by regulating the operation of aircraft in navigable airspace over which the FAA has control. Condition 2 is a less direct effort to control noise by controlling aircraft operations, but it is one, nevertheless. See Gary Leasing, Inc., 127 Misc.2d at 195, 485 N.Y.S.2d at 694. We hold that both conditions are preempted under City of Burbank and, therefore, unconstitutional.

This holding compels us to reverse the judgment of the Court of Special Appeals with respect to Board conditions 2 and 3. Our holding, in effect, affirms the judgment of the Circuit Court for Carroll County which remanded the case to the Board for further proceedings in light of O'Donnell v. Bassler, 289 Md. 501, 513-514, 425 A.2d 1003, 1010 (1981), cert. denied, 299 Md. 426, 474 A.2d 219 (1984) (county zoning board has authority as administrative body to determine whether to grant exception).

JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED IN PART AND AFFIRMED IN PART. CASE REMANDED TO THAT COURT WITH DIRECTION TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR CARROLL COUNTY. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY APPELLEES.

McAULIFFE, Judge, dissenting.

I cannot agree that the Congress of the United States intended to pre-empt the right of Carroll County to impose the conditions at issue here, and I do not believe that the United States Supreme Court held to the contrary in City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973). In City of Burbank, the Supreme Court dealt with a city ordinance that prohibited jet aircraft from taking off from the Hollywood-Burbank Airport between 11 p.m. of one day and 7 a.m. the next day. This ordinance affected a regularly scheduled flight of a commercial air carrier that originated in Oakland and was scheduled to stop at Hollywood-Burbank before departing for San Diego. The Court held that "airspace management" had been pre-empted by the United States, and that the City of Burbank regulation invaded the field of "airspace management." The Court noted the findings of the trial judge that:

The imposition of curfew ordinances on a nationwide basis would result in a bunching of flights in those hours immediately preceding the curfew. This bunching of flights during these hours would have the twofold effect of increasing an already serious congestion problem and actually increasing, rather than relieving, the noise problem by increasing flights in the period of greatest annoyance to surrounding communities. Such a result is totally inconsistent with the objectives of the federal statutory and regulatory scheme.

* * * * * *

The imposition of curfew ordinances on a nationwide basis would cause a serious loss of efficiency in the use of the navigable airspace.

The case before us does not involve scheduled airline service, or a public use airport. It does involve a small, grass airstrip from which one or two powered aircraft operate to tow gliders into the air. This airport is privately owned. It is not proposed to be a general aviation airport. It will not be open to other aircraft wishing to land or take off. The conditions imposed by the Carroll County Board of Zoning Appeals will not "increase congestion, cause a loss of efficiency, [or] aggravate the noise problem," as was the case in City of Burbank. Id. at 628, 93 S.Ct. at 1857.

The Woodbine Airstrip is not a "public use airport" within the coverage of the Aviation Safety and Noise Abatement Act of 1979, 49 U.S.C. App. ss. 2101 et seq., because it is not a "public airport," a "privately owned reliever airport," nor a "privately owned airport which is determined ... to enplane annually 2,500 or more passengers and receive scheduled passenger service of aircraft." 49 U.S.C. App. s. 2202(a)(18).

Although all aircraft, including those operating from the Woodbine Airstrip, are subject to certain Federal Aviation Administration regulations, there is no control tower at Woodbine, and no direct Federal Aviation Administration supervision of the operation of the airport.

As the Supreme Court has pointed out, the implied pre-emption of this field by Congress must necessarily be very broad. Notwithstanding that breadth, I do not believe that it extends so far as to preclude the local imposition of conditions upon the grant of permission to operate a facility of this type, where airspace management is not implicated.

I concede that the majority opinion of a sharply divided Supreme Court in City of Burbank may be read as expansively as the majority of this Court suggests. I do not agree that such a broad reading is mandated, or reasonable as applied to the facts of the case before us. I would hold that the imposition of conditions two and three was a valid exercise of the authority of the Carroll County Board of Zoning Appeals.