Pirolo v. City of Clearwater

• Decision Date: 12 August 1983
• Docket Number: No. 82-5322,82-5322
• Citation: 711 F.2d 1006
• Parties: Charles A. PIROLO, individually, and d/b/a Suncoast Equipment Leasing, Suncoast Pilots Club, Inc., and Clearwater Aircraft, Inc., Plaintiffs-Appellants, Cross- Appellees, v. CITY OF CLEARWATER, a Florida Municipal Corporation; Charles F. LeCher, Mayor- Commissioner, et al., Defendants-Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1006

711 F.2d 1006

19 ERC 1682

Charles A. PIROLO, individually, and d/b/a Suncoast Equipment Leasing, Suncoast Pilots Club, Inc., and Clearwater Aircraft, Inc. Plaintiffs-Appellants, Cross- Appellees, v. CITY OF CLEARWATER, a Florida Municipal Corporation Charles F. LeCher, Mayor- Commissioner, et al Defendants-Appellees, Cross-Appellants.

No. 82-5322.

United States Court of Appeals Eleventh Circuit.

Aug. 12, 1983.

Rehearing and Rehearing En Banc Denied Nov. 4, 1983.

Evans W. North, Washington, D.C., John N. Samaha, St. Petersburg, Fla., for plaintiffs-appellants, cross-appellees.

Thomas A. Bustin, City Atty., F. Wallace Pope, Jr., Elizabeth J. Daniels, Clearwater, Fla., for defendants-appellees, cross-appellants.

Appeals from the United States District Court for the Middle District of Florida.

Before RONEY and CLARK, Circuit Judges, and GIBSON ^*, Senior Circuit Judge.

WILLIAM J. CASTAGNA, District Judge:

This appeal involves the constitutionality of two airport regulation ordinances enacted by the City of Clearwater and a claim for damages brought by the airport's operator. The district court ruled that the ordinances--one prohibiting night operations and the other prescribing air traffic patterns--were preempted by federal regulations and therefore violated the supremacy clause. U.S. Const. art. VI, cl. 2. However, the court denied the operator's claim for damages under 42 U.S.C. § 1983 (1976). The operator appeals and the city cross-appeals. We affirm the judgment of the district court in all respects.

I. Facts

In 1970 the City of Clearwater entered into a thirty-year lease-contract with a corporation called Clearwater Golf-Park, Inc. for the operation of an airport and golf course. The lease did not impose restrictions on hours of operation or air traffic patterns. Later in 1970 Clearwater Golf-Park, Inc. entered into a thirty-year sublease with Clearwater Air Park, Inc. (which later changed its name to Clearwater Aircraft) for the operation of the airport. The sublease, like the lease, did not impose restrictions on the hours of operation or air traffic patterns, and also provided for a "lighted runway for takeoffs and landings at night." The sublease said it was subject to the lease.

In 1974 the lease was amended to prohibit night flying unless the city gave its consent, but Clearwater Aircraft was not a party to the amendment. Shortly after the lease was amended, the city enacted an ordinance prohibiting night flying. In 1975 the ordinance was ruled unconstitutional by the Circuit Court of Pinellas County, Florida. Plaintiff Charles Pirolo bought the stock of Clearwater Aircraft in 1977. In 1979 the city enacted a second curfew ordinance, this one slightly different from the first. In 1980 the city passed an ordinance requiring certain air traffic patterns for takeoffs and landings. Both ordinances were enacted after due public notice and public hearings.

Later in 1980 Pirolo, individually and doing business as Clearwater Aircraft and other corporations, brought this action against the city and its commissioners seeking to enjoin enforcement of the ordinances and seeking damages against the city and its commissioners under § 1983. After various motions, memoranda, interrogatories, and affidavits were filed, the district court granted partial summary judgment for Pirolo, finding the ordinances preempted by federal law and therefore in violation of the supremacy clause. The court also granted defendants' Motion to Dismiss and/or for Summary Judgment on Pirolo's § 1983 claim on the basis that federal courts cannot provide a remedy under § 1983 for violations of the supremacy clause. Pirolo moved for reconsideration, arguing that his § 1983 claim was based in part on a deprivation of property and/or liberty without due process claim under the fourteenth amendment. The district court denied the motion for reconsideration without explanation.

II. Constitutionality of the Ordinances

The city concedes that under City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973), the city's ordinances would be preempted by federal regulations if they were enacted pursuant to the city's police power. In Burbank, the Supreme Court invalidated ordinances which placed a curfew on jet flights on the basis that pervasive federal regulation gave the Federal Aviation Administration and the Environmental Protection Agency exclusive responsibility for noise control at airports. Id. at 638-40, 93 S.Ct. at 1862-63. Both ordinances passed by the City of Clearwater are clearly noise control ordinances. The curfew ordinance is directly controlled by Burbank and the air traffic ordinance states that it was designed to control noise. Burbank allowed for one possible exception to this rule in situations where a city is the proprietor of the airport. The Supreme Court stated in a footnote: "We do not consider here what limits, if any, apply to a municipality as a proprietor." Id. at 635-36 n. 14, 93 S.Ct. at 1860-1861 n. 14. The Supreme Court did not decide what power a city has as proprietor because the City of Burbank had imposed the curfew pursuant to its police power, not as the proprietor. Id. The City of Burbank was neither the owner nor the operator of the airport. Lockheed Air Terminal v. City of Burbank, 457 F.2d 667, 668 (9th Cir.1972), aff'd, 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973).

The district court in the instant case concluded that the city is not a proprietor of the airport, and the city argues that summary judgment was inappropriate on this issue. Although it is not entirely clear whether the City of Clearwater should be called the proprietor, the district court was correct in concluding that the city did not have the proprietary power to impose the restrictions. The only basis other than proprietary power for enactment of the ordinances was the police power, and as exercises of the police power Burbank requires that the ordinances be found unconstitutional as violations of the supremacy clause.

The City of Clearwater states that it is subject to potential liability for excessive noise, and therefore it should be able to enact ordinances under a proprietor exception. Some courts have indicated that the determining factor in whether regulations are within a proprietor exception is potential liability. San Diego Unified Port District v. Gianturco, 651 F.2d 1306, 1316-17 (9th Cir.1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1631, 71 L.Ed.2d 866 (1982); British Airways Board v. Port Authority of New York, 558 F.2d 75, 83 (2d Cir.1977). These courts relied on Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962), where the Supreme Court held the county liable in an inverse condemnation action in which the county was the owner and operator of the airport. The city argues that its status as owner and the entity with the power to acquire air easements subjects it to potential liability.

However, before deciding whether a city's potential liability justifies the exercise of its proprietary power to regulate (rather than its police power), we must determine whether the city in fact possessed a proprietary power to regulate. In this case the city contracted away its right to impose the desired restrictions. Therefore, we need not decide whether the proprietor exception is applicable and whether the city faces potential liability for excessive noise. ¹

An examination of the Burbank footnote shows that the Supreme Court did not intend to give extraordinary powers to municipal airport proprietors. In explaining the derivation of the possible proprietor exception, the Supreme Court quoted from a letter from the Secretary of Transportation to the Senate Commerce Committee which was considering noise abatement amendments to the Federal Aviation Act. The quoted portion read:

[T]he proposed legislation will not affect the rights of a State or local public agency, as the proprietor of an airport, from issuing regulations or establishing requirements as to the permissible level of noise which can be created by aircraft using the airport. Airport owners acting as proprietors can presently deny the use of their airports to aircraft on the basis of noise considerations so long as such exclusion is nondiscriminatory.

411 U.S. at 635-36 n. 14, 93 S.Ct. at 1860-1861 n. 14, quoting S.Rep. No. 1353, 90th Cong., 2d Sess. (1968) U.S.Code Cong. & Admin.News 1968, pp. 2688, 2694 (Court's emphasis).

Black's Law Dictionary defines a proprietor as: "One who has the legal right or exclusive title to anything. In many instances it is synonymous with owner." Black's Law Dictionary, 1098 (rev. 5th ed. 1979). The footnote suggested that a city as owner or proprietor may be able to exercise its proprietary powers in situations where an exercise of the police power would be preempted. The Supreme Court emphasized the distinction between proprietary and police powers by saying in the footnote: "[W]e are concerned here not with an ordinance imposed by the City of Burbank as 'proprietor' of the airport, but with the exercise of police power." 411 U.S. at 635-36 n. 14, 93 S.Ct. at 1860-1861 n. 14. The Court did not suggest that if the city is a proprietor, it can impose restrictions outside of its proprietary power. The only case we have found in which airport noise restrictions were upheld under the proprietor exception dealt with a city that was both owner and operator of the airport and had not contracted away the right to impose noise restrictions. Santa Monica Airport Ass'n v. City of Santa Monica, 659 F.2d 100 (9th Cir.1981).

A review of the lease documents shows the district court was correct in concluding that the city had contracted away the right to impose the noise restrictions. The city executed a 30-year lease in 1970 and approved a sublease which had no curfews or air traffic restrictions. The lease was amended in 1974 to permit the desired...