Blue Sky Entertainment, Inc. v. Town of Gardiner, 88-CV-1328.

CourtUnited States District Courts. 2nd Circuit. United States District Court of Northern District of New York
Writing for the CourtKellar & Kellar, Kingston, N.Y. (Norman Kellar, of counsel), for defendant
Citation711 F. Supp. 678
PartiesBLUE SKY ENTERTAINMENT, INC., the Ranch Parachute Club, Ltd., and William F. Franz, Plaintiffs, v. TOWN OF GARDINER, Defendant.
Docket NumberNo. 88-CV-1328.,88-CV-1328.
Decision Date19 April 1989

711 F. Supp. 678

BLUE SKY ENTERTAINMENT, INC., the Ranch Parachute Club, Ltd., and William F. Franz, Plaintiffs,

No. 88-CV-1328.

United States District Court, N.D. New York.

April 19, 1989.

711 F. Supp. 679
711 F. Supp. 680
711 F. Supp. 681
Daniel Donnelly, Garrison, N.Y., for plaintiffs

Kellar & Kellar, Kingston, N.Y. (Norman Kellar, of counsel), for defendant.


MUNSON, District Judge.

In this action, plaintiffs seek to enjoin the enforcement of Town Law 6 of 1988 of the Town of Gardiner ("the Town Law," "Town Law 6," or "TL6"). The plaintiffs have asked this court to consolidate the motions for preliminary and permanent injunctions.1 See Fed.R.Civ.P. 65(a)(2). At oral argument counsel for the defendant agreed to the consolidation. In short, both parties seek that this court decide the issues before it on the merits.

Town Law 6 is entitled "A Local Law to Regulate Small Airports And Parachute Jumping Centers." In addition to its regulations Town Law 6 requires the regulated entities to apply for licenses on a yearly basis for a yearly fee of $500. Two airports in the Town of Gardiner ("the Town") fit the Town Law's definition of a small airport or parachute jumping center. They are Blue Sky Ranch and Wright Field. Both service aircraft, though parachuting occurs only at Blue Sky Ranch. Plaintiff Blue Sky Entertainment, Inc. is the owner of Blue Sky Ranch, while plaintiff, The Ranch Parachute Club, Ltd., is the operator of that airfield. Plaintiff William F. Franz is the operator of Wright Field.

Plaintiffs challenge Town Law 6 on a number of grounds. They claim portions of it violate the following: the supremacy clause of the United States Constitution, art. VI, cl. 2., the due process clause of the fourteenth amendment, and the takings clause of the fifth amendment, as applied through the fourteenth amendment. Seeking attorneys' fees, plaintiffs also present a claim under 42 U.S.C. § 1983. They allege that this court has jurisdiction over the action under 28 U.S.C. §§ 1331 (federal question jurisdiction), 1337 (granting jurisdiction when an action arises under an act of Congress regulating commerce) and 1343 (jurisdiction in civil rights actions).


Town Law 6 was enacted on December 13, 1988. It is an extensive enactment which seeks to regulate many facets of small airports and parachute jumping centers (collectively referred to hereinafter as "the airports") within the Town. As noted, the Town Law requires that the airports be licensed and pay a yearly licensing fee of $500. TL6 §§ 2(a) and 3(a). It further states that "the license shall be applied for annually for the period March 1 through February 28."2 TL6 § 2(a). An extensive application must be filed in order to obtain the license. TL6 § 3(b).

The Town Law also requires that the airports supply adequate drinking water, sanitation facilities, and garbage receptacles. TL6 § 3(c-e). The building and structures on the airports' premises are to be kept clean, sightly and sanitary. TL6 § 3(f). Additionally, Town Law 6 requires that the airports carry liability insurance providing at least "$2,000,000 coverage for

711 F. Supp. 682
any one person injured, or $5,000,000 for any one accident, and $500,000 for property damage...." TL6 § 3(h). The Town Law directs that the Town be named as the insured of these policies. Id. It forbids pitching of tents or use of travel trailers— which are not defined—on the airports' property. TL6 § 3(i). Furthermore, it prohibits the sale, possession, use or consumption of alcohol, intoxicating beverages or controlled substances at the airports. TL6 § 3(j)

Town Law 6 also contains special provisions for parachute jumping centers ("jumping centers"). It requires that each jump be recorded in a logbook. TL6 § 4(a). Furthermore, the Town Law sets restrictions on when, where and how the jumps may occur. They are not to occur at night. TL6 § 5. They are not to occur over spectators. TL6 § 4(d). They are to be conducted so that the parachutists land only within a designated drop zone.3 TL6 § 4(f).

Town Law 6 seeks to cut back on the frequency of low-flying aircraft. Subsection 6(a) reads: "Aircraft ascending from or descending to a parachute jumping center or small airport shall fly in such a pattern so that they are always, except in case of an emergency, above the imaginary surface parameters sic for that parachute jumping center or small airport, pursuant to Federal Aviation Administration Regulations Part 77, § 77.25."

The Town Law also seeks to regulate the noise emanating from the aircraft which use the airports. Planes are allowed to use the facilities of the airports if they meet one of two criteria. Aircraft may use the airports' facilities if they are listed at or below 65dbA in Federal Aviation Administration ("FAA") Circular 36-3. TL6 § 7(b). The notation "dbA" indicates a simple average of the noise at take off and landing. TL6 § 7(b) & (c). Aircraft may also use the airports if they emit no more than 80 dbA. TL6 § 7(a) & (c). Subsection 7(c) of the Town Law sets out the procedures for testing an aircraft not listed in the FAA Circular at 65dbA or less. Specifically, noise receptors are to be placed around the airports, the cost of which will be borne by the airports. TL6 § 7(c). Before an aircraft can operate at the airports pursuant to TL6 § 7(c), the Town Board must issue its approval. TL6 § 7(g).

Town Law 6 requires the airports to post with the Town Clerk a bond of $2,500. TL6 § 7(i). The bond is to be deducted from in the event that residents complain of noise from one of the airports, and the Town in response hires a noise consultant and the Town Board determines that the noise standards were violated. Id. When the standards have been violated, the consultant's fees will be paid from the bond. Id. If the bond is insufficient to pay for the consultant's services, then the offending licensee will not be allowed to resume operations until corrective action is taken, the costs incurred by the Town Board are reimbursed, and a new cash bond is posted. Id.

Violations of the Town Law are, apparently, punishable by fines, ranging from $50 to $500 a day, and by revocation or suspension of the license which the Town Law requires of the airports.4 TL6 §§ 8 and 9. However, under the terms of Town Law 6, no license may be suspended or revoked without a hearing. TL6 § 9(d).

711 F. Supp. 683

In its final section, the Town Law exempts from its provisions emergency operations and operations of the Armed Forces. TL6 § 10(a). As to severability, Town Law 6 provides that if any section of the law is found invalid, the whole law is not as a result invalid. TL6 § 10(b). Lastly, the Town Law is to become effective on the date it is filed with the Secretary of State of the State of New York. TL6 § 10(c); see N.Y.Mun.Home Rule § 27(3) (McKinney's 1969).5

The origin of Town Law 6 lies in Town Law 2, an enactment which similarly tried to regulate the airports regulated by Town Law 6. Town Law 2 was enacted on June 14, 1988. In a letter dated June 15, 19876 and addressed to defendant's counsel, Regional Counsel for the FAA attacked portions of the proposed Town Law 2. She stated:

The Federal Aviation Administration (FAA) objects to this proposed ordinance on the grounds that to the extent it would regulate parachute jumping, aircraft operations and aircraft noise, it is an unconstitutional exercise of the Town's powers because (1) it is preempted by federal regulation of the field and (2) it would impose an undue burden on interstate commerce.
It is well-settled that FAA has been delegated exclusive responsibility by Congress for the safe and efficient management of the navigable airspace of the United States. See City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 626-27, 93 S.Ct. 1854, 1856-57, 36 L.Ed. 2d 547 (1973).
The FAA has also been delegated exclusive responsibility for regulating aircraft noise pursuant to the Federal Aviation Act of 1958, 49 U.S.C. Section 1301 et seq., preempting state and local control. City of Burbank v. Lockheed Air Terminal, supra, 411 U.S. at 633, 93 S.Ct. at 1859.
To the extent the ordinance regulates land use in the Town of Gardiner, it is not preempted by federal regulation of aviation.

Town Law 2 was later amended on July 11, 1988 and its successor, Town Law 6, was enacted on December 13, 1988. Under a stipulation between the parties, however, counsel for the defendant agreed that Town Law 6 would not be filed with the Secretary of State until January 30, 1989.

Plaintiffs' complaint alleges seven claims. First, plaintiffs contend that §§ 2, 3(a), 3(b)(i) and (iii), a portion of 3(h),7 4, 5, 6, 7, 8, 9 and 10(a) violate the supremacy clause of the United States Constitution and the due process clause of the fourteenth

711 F. Supp. 684
amendment. Second, they attack the Town Law's requirement of minimum liability insurance for automobiles used to transport parachutists, pilots or aircraft passengers.8 In effect, this is the portion of § 3(h) not assailed in Count 1.9 Plaintiffs contend that this portion of § 3(h) violates the due process clause of the fourteenth amendment and is preempted by state law. Third, plaintiffs allege that § 3(j), prohibiting alcohol, is preempted by state law and violates the due process clause of the fourteenth amendment. Fourth, plaintiffs attack § 3(i), regarding camping and trailers, as violative of the due process clause of the fourteenth amendment because the Town, when enacting § 3(i), allegedly acted outside its authority and failed to comply with procedural requirements. Fifth, plaintiffs contend that all of Town Law 6 violates the taking clause of the fifth amendment, as applied to the states through the fourteenth amendment. Sixth, plaintiffs attack the license fee in § 3(a) as excessive because it allegedly will...

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