City of Winner v. Lineback

• Decision Date: 16 December 1971
• Docket Number: Nos. 10659,10745,s. 10659
• Citation: 192 N.W.2d 705,86 S.D. 165
• Parties: CITY OF WINNER, South Dakota, Respondent, v. Don LINEBACK, d/b/a Don-Aire Flying Service, Appellant. Don LINEBACK, d/b/a Don-Aire Flying Service, Appellant, v. CITY OF WINNER, South Dakota, Respondent.
• Court: South Dakota Supreme Court

Page 705

192 N.W.2d 705

86 S.D. 165

CITY OF WINNER, South Dakota, Respondent, v. Don LINEBACK, d/b/a Don-Aire Flying Service, Appellant.

Don LINEBACK, d/b/a Don-Aire Flying Service, Appellant, v. CITY OF WINNER, South Dakota, Respondent.

Nos. 10659, 10745.

Supreme Court of South Dakota.

Dec. 16, 1971.

Charles Rick Johnson, of Johnson & Johnson, Gregory, for appellant.

John Simpson, Winner, for respondent.

WOLLMAN, Judge (on reassignment).

This consolidated appeal involves a forcible entry and detainer suit brought by the City of Winner, South Dakota, (City) against Don Lineback, doing business as Don-Aire Flying Service (Lineback) and a declaratory judgment action brought by Lineback against the city. Lineback appeals from judgments entered in favor of the city in both actions.

On June 28, 1967 Lineback presented a written application to the members of the Winner city council for permission to lease from the city for a charge comparable to that charged other operators a portion of land on the Winner Municipal Airport on which to place a commercial flying operations hangar and service area.

A committee was authorized by the city council to go with Lineback for the purpose of selecting a site on which Lineback could build. This apparently was done the next day and thereafter Lineback constructed a hangar on the site approved by the committee. He also installed gas tanks and moved a trailer house next to the hangar for use as an office. No written lease was ever executed by Lineback and the city and the record does not reveal that the city council ever took any formal action to enter into a lease with Lineback. Lineback had no permission from the city to place the trailer house on the airport nor did he have any lease for the property occupied by the trailer house.

On July 17, 1967 Lineback's application for a water tap at his hangar site was unanimously approved by the city council. This was later referred to in the proceedings as an 'outlaw' water tap inasmuch as it was not within the city limits. A dispute arose over the gas tanks and the trailer house and the city attorney notified lineback by letter on July 26, 1967 to remove them from the airport. Lineback was also advised that he was to refrain from selling petroleum products on the airport property.

On December 12, 1967 the city council adopted Ordinance No. 369 which adopted regulations governing the use of the municipal airport and which charged the Zoning Board of Adjustment with the cuty of maintaining, operating and controlling the airport. The Board of Adjustment was also given the responsibility of zoning the airport. Pursuant to the provisions of this ordinance, the city council adopted a resolution on January 15, 1968 establishing fees for commercial aeronautical operations at the airport. This resolution also reserved to the city the exclusive right to sell gasoline, oil, and other lubricants at the airport. Lineback was asked by the city to enter into a written lease and a fixed base operator's agreement based upon the rentals established in Ordinance 363 adopted August 21, 1967 and the fees established by the resolution of January 15, 1968. Lineback refused to enter into these agreements and did not pay the rentals or fees whereupon the city brought an action for forcible entry and detainer in June of 1968.

The trial court held that inasmuch as Lineback did not have a lease with the city for the portion of the airport occupied by his hangar but had received permission to construct a hangar on the particular site, Lineback's legal interest in the land occupied by his hangar was that of a tenant at will, which tenancy could be terminated by the city.

The court held that the city was entitled to recover the sum of $51 damages and rent on the hangar area. The court also held that Lineback would be entitled to use the portion of the airport occupied by his hangar and gas tanks upon his executing and delivering a lease to the city and paying the rental due thereunder. The judgment provided that the city was entitled to immediate possession of that portion of the municipal airport occupied by defendant's trailer house. The judgment was then stayed pending an appeal.

Lineback then brought a declaratory judgment action seeking a determination of his rights, status and legal relations with the city under the provisions of Ordinance No. 369 and the resolution of January 15, 1968. The city's cross complaint asked for (1) judgment against Lineback in the amount of $1,200 for the fees allegedly due from Lineback from and after January 15, 1968, (2) for a permanent injunction enjoining Lineback from operating a commercial flying service until such time as he complied with all of the ordinances, regulations and resolutions of the city and (3) for a permanent injunction enjoining Lineback from making commercial sales of gasoline and oil products at the municipal airport.

The trial court found that the fees established for commercial use at the airport by the resolution adopted on January 15, 1968 were reasonable and that they applied to Lineback's commercial flying operations at the airport. The court held that the regulations established by Ordinance No. 369 applied to Lineback. The court also held that the city had the power to retain the exclusive right to the commercial sale of gasoline at the airport. Judgment was entered against Lineback in favor of the city in the amount of $1,100 for the commercial fees due from Lineback from and after January 15, 1968. The judgment also permanently enjoined Lineback from commercially selling gasoline at the municipal airport.

Lineback's first contention on appeal is that Ordinance 369 gives the city arbitrary, undefined and unconstitutional powers to punish him criminally or dispossess him of his investment. Lineback characterizes Ordinance 369 as a 'lengthy hodge-podge of zoning jargon' which gives the city's Zoning Board f Adjustment total and unrestrained control over all activities at the airport. He also argues that because the federal government has taken complete and national sovereignty of the air space of the United States, 49 U.S.C.A. § 1508, and is authorized to regulate and control municipal airports which have used federal aid in their development, such as the Winner Municipal Airport, 49 U.S.C.A. §§ 1348--1350, Ordinance 369 is void to the extent that it attempts to regulate his interstate business.

SDCL 50--7--2 gives the governing body of a city power and jurisdiction to '* * * acquire, establish, construct, own, control, lease, equip, improve, maintain, operate, and regulate airports or landing fields * * *'. SDCL 50--7--13 empowers the governing body of a city to create by ordinance a board whose sole purpose shall be to improve, regulate and supervise the operation and management of their facilities.

SDCL 50--7--14 provides that:

'The governing body of a city, town, or county may adopt regulations and establish fees or charges for the use of such airport or landing field, or may authorize an officer, board, or body of such city, town, or county having jurisdiction to adopt such regulations and establish such fees or charges, subject, however, to the approval of such governing body before they shall take effect.'

In our opinion there is nothing in Ordinance 369 which attempts to supersede or which conflicts with any rule, regulation or requirement of the Federal Aviation Administration. Rather, the ordinance is drafted in such a manner as to conform with the requirements, recommendations, rules and regulations of the Federal Aviation Administration and the State Aeronautics Commission. The federal government has not excluded the existence of areas of proper airport regulation by local authorities. Aircraft Owners and Pilots Association v. Port Authority of New York, D.C., 305 F.Supp. 93. We believe that the ordinance complies with the requirements of SDCL 50--10--6 which requires municipal zoning and height limitations to conform to the standards of any agency of the federal government which may be concerned with the fostering of civil aeronautics.

The ordinance thus does not give unrestrained, undefined powers to the Board of Adjustment or to the city. Rather, a fair reading of the ordinance leads to the conclusion that it was enacted for the purpose of insuring the safe, efficient use of the municipal airport in conformance with the standards of the Federal Aviation Administration and the South Dakota State Aeronautics Commission. See SDCL 50--10. We will not invalidate the ordinance merely because it instructs the Board of Adjustment to adopt rules, regulations and restrictions which conform to those adopted by federal and state agencies.

Lineback challenges section 17 of Ordinance 369 on the ground that it allows the Zoning Board of Adjustment to adopt rules and regulations which shall be in full force and effect upon the filing of copies with the City Auditor, whereas SDCL 50--7--14 requires that such rules must be approved by the governing body of the city before they shall take effect. There is merit in this contention. Lineback, however, has not directed our attention to any rules and regulations which have not been approved by the city. We will not strike down the entire ordinance because of the possibility that at some further time the Zoning Board of Adjustment and the city will not comply with statutory requirements.

Lineback next contends that he had an existing...