Northeast Phoenix Homeowners' Ass'n v. Scottsdale Municipal Airport, 1

• Decision Date: 13 November 1981
• Docket Number: CA-CIV,No. 1,1
• Citation: 636 P.2d 1269,130 Ariz. 487
• Parties: , 12 Envtl. L. Rep. 20,715 NORTHEAST PHOENIX HOMEOWNERS' ASSOCIATION, a non-profit corporation; Everett Smith, et ux.; D. R. Greenwood, et ux.; Michael Moulds, et ux.; Everett Worfolk, et ux.; Plaintiffs-Appellants, v. SCOTTSDALE MUNICIPAL AIRPORT; the City of Scottsdale; and William C. Jenkins, Richard Campana, Herb Drinkwater, Billie Gentry, Dr. Heinz Hink, Jeff Schubert and Charles Smith, as the City Council of the City of Scottsdale, Defendants-Appellees. 4686.
• Court: Arizona Court of Appeals

Page 1269

636 P.2d 1269

130 Ariz. 487, 12 Envtl. L. Rep. 20,715

NORTHEAST PHOENIX HOMEOWNERS' ASSOCIATION, a non-profit corporation; Everett Smith, et ux.; D. R. Greenwood, et ux.; Michael Moulds, et ux.; Everett Worfolk, et ux.; Plaintiffs-Appellants, v. SCOTTSDALE MUNICIPAL AIRPORT; the City of Scottsdale; and William C. Jenkins, Richard Campana, Herb Drinkwater, Billie Gentry, Dr. Heinz Hink, Jeff Schubert and Charles Smith, as the City Council of the City of Scottsdale, Defendants-Appellees.

No. 1 CA-CIV 4686.

Court of Appeals of Arizona, Division 1, Department B.

Nov. 13, 1981.

Francis G. Fleming, P. C. by Francis G. Fleming, New York City, for plaintiffs-appellants

Richard Filler, Scottsdale City Atty. by Donald O. Loeb, Asst. City Atty., Scottsdale, for defendants-appellees.

OPINION

HAIRE, Presiding Judge.

This multiple party litigation arose out of a conflict between certain residents of Northeast Phoenix and the City of Scottsdale as the owner and operator of the Scottsdale Municipal Airport. The Northeast Phoenix Homeowners' Association is a nonprofit corporation, suing on its own behalf and that of its members. The individual plaintiffs are landowners whose homes are located under the flight path of airplanes using the airport and within 1,000 yards of the airport. The defendants include the Scottsdale Municipal Airport, ¹ the City of Scottsdale, as the owner and operator of the Scottsdale Municipal Airport, and the Scottsdale City Council members in their representative capacities.

I PROCEEDINGS IN THE TRIAL COURT

The complaint alleges various injuries to the plaintiffs and their homes resulting from the operation of the airport. The gravamen of the complaint is that low-flying aircraft have created and will continue to create excessive and unreasonable noise, dust, vibration and intrusive light, such that plaintiffs are and will continue to be exposed to physical danger, interruption of sleep and conversation, physical discomfort and general disruption of the peaceable enjoyment of their lands. Furthermore, the complaint alleges that the defendants have resolved to extend the runway of the airport so as to increase the number and size of aircraft using the flight path, thereby increasing the interference with the use of plaintiffs' lands and appurtenances without reasonable justification.

The complaint includes six counts. Counts I, II and III seek injunctive relief on theories of trespass, nuisance, and violation of statutes regarding flight operations. Count IV alleges that to extend the runway requires an amendment to the City of Scottsdale's "master plan", ² and seeks a declaration that the city's amendment of the plan was invalid. Count V is an alternative claim for inverse eminent domain damages in the event the court finds that injunctive relief is unavailable. Count VI is also an alternative claim, alleging that if it is determined that plaintiffs are not entitled to relief under Arizona statutes or common law pursuant to the claims alleged in their first five counts, then plaintiffs have been denied due process pursuant to the fourteenth amendment and the provisions of the Civil Rights Act, 42 U.S.C. § 1983.

The judgment which is the subject of this appeal resulted from a motion to dismiss filed by defendants. The motion was granted as to the claims for injunctive relief set forth in Counts I, II and III. ³ Count IV, in which plaintiffs requested declaratory relief concerning defendants' alleged failure to properly amend its master plan in connection with its decision to lengthen the airport's runway was also dismissed, upon the basis that the challenged amendments were not required as a prerequisite to the proposed runway extension. The judgment did not dispose of Counts V and VI, and there remains pending in the trial court plaintiffs' money damage claims in nuisance, trespass and inverse eminent domain, as well as their claims relating to water diversion onto real property owned by some of the plaintiffs. ⁴

The basis for the dismissal of plaintiffs' claims for injunctive relief under state law was the trial court's conclusion that the requested regulation of defendants' airport operations through the use of the court's injunctive powers had been preempted by pervasive federal law in the area of airport operations and airport noise regulations. We therefore will initially consider the preemption issue before proceeding to other issues urged on appeal.

In their first three counts, plaintiffs sought the following injunctive relief:

1) To restrain defendants from extending the runway;

2) To impose a reasonable curfew upon the hours of flight operations;

3) To prohibit non-standard (i.e., right-hand) turns; and

4) To require all aircraft to utilize the full runway and threshold available in their operations so as to cause aircraft to over-fly plaintiffs' lands and appurtenances only when necessary and at as high an altitude as possible.

II FEDERAL PREEMPTION OF AVIATION REGULATIONS

The defendants contended that the federal statutory and regulatory scheme so pervasively regulated airport operations and aircraft noise that the power of state courts to grant injunctive relief in the area had been totally preempted. It was their position that any relief in the form of an injunction would "fly in the face of the federal system of dual control of airport noise problems by the FAA and the local airport proprietor."

The United States Supreme Court addressed the issue of federal preemption of aviation regulation in City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973). The City of Burbank had enacted a noise abatement ordinance which made it unlawful for jet aircraft to take off from Hollywood-Burbank Airport between 11:00 p.m. and 7:00 a.m. The court held that this type of local regulation of aircraft operations had been preempted because of "the pervasive nature of the federal regulation of aircraft noise." The court then explained:

"It is the pervasive nature of the scheme of federal regulation of aircraft noise that leads us to conclude that there is pre-emption. As Mr. Justice Jackson stated, concurring in Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292, 303, 64 S.Ct. 950, 956, 88 L.Ed. 1283:

'Federal control is intensive and exclusive. Planes do not wander about in the sky like vagrant clouds. They move only by federal permission, subject to federal inspection, in the hands of federally certified personnel and under an intricate system of federal commands. The moment a ship taxis onto a runway it is caught up in an elaborate and detailed system of controls.' " 411 U.S. at 633-34, 93 S.Ct. at 1859-60, 36 L.Ed.2d at 554.

The Burbank court's preemption analysis was based upon the Federal Aviation Act of 1958, 49 U.S.C. § 1301 et seq. (1976 and Supp. 1981), as amended by the Noise Control Act of 1972, 42 U.S.C. § 4901 et seq. (1976 and Supp. 1981).

Central to the court's concern was that to restrict the hours during which the airport was available for outgoing flights had a direct impact on Federal Aviation Administration (FAA) control over flight operations. That agency was charged with responsibility for balancing the potentially conflicting goals of noise abatement, safety and efficiency in the area of actual flight operations. The court acknowledged the agency's expertise in regulating take-off and landing procedures and runway preferences. To permit local curfew and other local regulation of flight operations would create the possibility that inconsistent regulations in various localities would impede interstate commerce or significantly affect the flexibility of the FAA in controlling air traffic flow and safety.

The Supreme Court stated:

"The Federal Aviation Act requires a delicate balance between safety and efficiency, 49 U.S.C. § 1348(a), and the protection of persons on the ground. 49 U.S.C. § 1348(c). Any regulations adopted by the Administrator to control noise pollution must be consistent with the 'highest degree of safety.' 49 U.S.C. § 1431(d)(3). The interdependence of these factors requires a uniform and exclusive system of federal regulation if the congressional objectives underlying the Federal Aviation Act are to be fulfilled.

"If we were to uphold the Burbank ordinance and a significant number of municipalities followed suit, it is obvious that fractionalized control of the timing of takeoffs and landings would severely limit the flexibility of the FAA in controlling air traffic flow. The difficulties of scheduling flights to avoid congestion and the concomitant decrease in safety would be compounded. In 1960 FAA rejected a proposed restriction on jet operations at the Los Angeles airport between 10 p.m. and 7 a.m. because such restrictions could 'create critically serious problems to all air transportation patterns.' 25 Fed.Reg. 1764-1765.

This decision, announced in 1960, remains peculiarly within the competence of FAA, supplemented now by the input of EPA. We are not at liberty to diffuse the powers given by Congress to FAA and EPA by letting the States or municipalities in on the planning. If that change is to be made, Congress alone must do it." 411 U.S. at 638-40, 93 S.Ct. at 1862-63, 36 L.Ed.2d at 556-57. (Footnote omitted; emphasis added).

In our opinion the Burbank court's analysis applies with equal force to the injunctive relief sought in the plaintiffs' complaint. In addition to the plaintiffs' request for a curfew, which clearly is not permissible, the complaint requested that the court prohibit "non-standard turns" and that it require full utilization of the runway.

Attempts of this nature to abate noise by regulating flight operations have been considered and prohibited by federal courts on grounds of preemption. In Luedtke v. County of Milwaukee, 521 F.2d 387 (7th Cir. 1975), the Seventh Circuit determined that establishing flight patterns, air traffic corridors, noise control...