11-30-05 Opinion from LA County Council Lawrence L. Hafetz Principal Deputy County Counsel Property Division
RE: Agua Dulce Airpark
To: Wayne Rew, Chair Ester L. Valadez, Commissioner Leslie G. Bellamy, Commissioner Harold V. Helsley, Commissioner Pat Modugno, Commissioner Regional Planning Commission
From: Lawrence L. Hafetz J L- L u Principal Deputy County Counsel Property Division
RE: Agua Dulce Airpark/Federal Preemption In connection with Agua Dulce Airpark's ("Airpark's") continued revocation/modification proceeding ("Proceeding") on December 14, 2005, we have been asked to consider whether, in our opinion, any of the original conditions in the Airpark's special use permit 1404-(5) ("CUP 1404") are preempted by federal law. CUP 1404 was approved by the Los Angeles Regional Planning Commission ("Commission") on October 27, 1959, and is attached hereto as Exhibit A for your reference.
After reviewing the relevant federal statutes and the controlling case law, we conclude that several of the conditions in CUP 1404, set forth in Section III below, would most likely be preempted by federal law. Accordingly, we have recommended to staff to eliminate these conditions from the draft conditions submitted to your Commission for review.
DISCUSSION
I. Federal Preemption Doctrine
The doctrine of federal preemption is derived from the Supremacy Clause of the United States Constitution and provides that where a conflict arises between federal law and state or local law, federal law prevails if such was the intent of Congress. [1] Congressional intent may be either express or implied.
Express preemption is found where a statutory enactment expressly states Congress' intent to preempt local law. On the other hand, implied preemption may be found in three situations: (1) where compliance with both federal law and local law would be impossible; (2) where compliance with local law would frustrate the purposes of federal law; or (3) where federal law so fully occupies a field of regulation that it is reasonable to conclude that Congress intended to preempt all local law in that field.
In general, there are three potential sources of federal preemption in the aviation context that are relevant here: (1) the Federal Aviation Act of 1958, 49 U.S.C. § 40101, et seq. ("Aviation Act"); (2) the Airline Deregulation Act of 1978, 49 U.S.C. § 41713 ("Deregulation Act"); and (3) the various noise acts ("Noise Acts") adopted by Congress between 1972 to 1990.
The Aviation Act is the federal law that bears most directly on the question of preemption in this case and was adopted in 1958 primarily to regulate the safe and efficient use of navigable airspace throughout the nation. Pursuant to the Aviation Act, the United States Government has exclusive sovereignty over navigable airspace and aircraft safety. (49 U.S.C. § 40103) Although the Aviation Act contains no express preemption provision, courts have found that the Aviation Act impliedly preempts local acts that: (1) interfere with the safe and efficient navigation of the federal airspace; and (2) directly interfere with aircraft operations, including flight and ground operations relating to taxiing, take-off, and landing.
The Deregulation Act was adopted in 1978 to achieve economic deregulation of the airline industry and to promote maximum reliance on competitive market forces within the industry. Pursuant to the Deregulation Act, local government is expressly preempted from enacting or enforcing any regulation related to a price, route, or service of an air carrier. (49 U.S.C. § 41713(b)) According to Congress, such a regulation would interfere with the competitive market forces in the air carrier industry.
The Noise Acts were adopted between 1972 and 1990 and provide a comprehensive federal regulatory scheme to address aircraft noise problems. The acts include: the Noise Control Act of 1972 (42 U.S.C. § 4901, et seq.); the Quite Communities Act of 1978 (42 U.S.C. § 4913); the Aviation Safety and Noise Abatement Act of 1979 (49 U.S.C. § 47501, et seq.); and the Airport Noise and Capacity Act of 1990 (49 U.S.C. § 47521, et seq.).
Courts have found that the Noise Acts preempt attempts by municipalities to regulate aircraft noise by directly regulating aircraft operations. In this regard, the Noise Acts significantly circumscribe local control in an area that has long been considered a local matter, i.e., noise regulation, when the noise is airport-related.
However, local government remains free to address aircraft noise in ways that do not directly regulate aircraft operations. For example, local government may mitigate the effects of aircraft noise with the use of zoning power to prevent inconsistent land uses.
II. Examples of Local Regulations That We Believe Would Most Likely: (A) Be Preempted; and (B) Not Be Preempted A.
Examples of Local Regulations Most Likely Preempted
Based on the above federal statutes and the controlling case law, we believe that the following types of local airport-related regulations would most likely be preempted by federal law because they would interfere with aircraft operations, safe aircraft navigation, or the pricing, routing or scheduling of aircraft:
Flight curfews;
Limitations on the days of an airport's permissible operation; -Flight bans over residential areas;
Prohibitions on flights below a specified altitude;
Mandated use of specific safety equipment or procedures;
Bans on the installation of safety equipment required by federal law;
Bans on acrobatic flight operations;
Bans on parachuting;
Caps on prices charged for flight services or operation;
Restrictions on the number of flights to and from an airport;
Bans on flights to or from specific locations or markets; and
Bans on operations of a specific air carrier.
B. Examples of Local Regulations Most Likely Not Preempted
Unlike the above examples, because a local government can adopt airport-related measures that do not: (1) interfere with the safe and efficient navigation of aircraft; or (2) directly regulate aircraft operations, we believe the following types of local regulations would most likely not be preempted by federal law:
Zoning restrictions that ban residential development near airports;
CUP requirements regulating the operation of a heliport in an industrial zone;
Requirements to erect ground level sound barriers in locations that would not conflict with aircraft activity or otherwise conflict with federal regulations; and
Bans on aerial advertising to prevent distractions to drivers on the ground.
III. Federal Preemption as Applied to CUP 1404
Based on the above analysis, we believe that several of the conditions in CUP 1404, identified below, would most likely be preempted by federal law. Accordingly, we have recommended to staff to eliminate these conditions from the draft conditions submitted to your Commission for review.
The conditions are as follows, with the reason for our determination stated with each condition:
Condition 2 - Requiring the landing strip and taxiway to be paved would most likely be preempted because runway design is included within aircraft operations;
Condition 5(a) - Restricting the use of the Airpark to certain classes of aircraft such as "pleasure and executive type aircraft" would most likely be preempted because the restriction would interfere with flight operations;
Condition 5(c) - Restricting the frequency and number of training flights would most likely be preempted because the restriction would directly interfere with flight operations;
Condition 5(d) - Regulating whether or not emergency landings can take place at the Airpark would most likely be preempted because the regulation would interfere with the safe use of navigable airspace;
Condition 5(e) - Regulating whether government aircraft can use the Airpark would most likely be preempted because the regulation would interfere with aircraft operations;
Condition 11 - Banning aerial acrobatics, parachuting, and "dangerous flying" would most likely be preempted because the ban would relate to aircraft operations and the use of navigable airspace; and
Condition 12 - Restricting the use of the Airpark to propeller driven aircraft would most likely be preempted because the restriction would interfere with flight operations.
We also believe that Condition 8 and Condition 9, regulating construction markers and other navigational aids at the Airpark, should be modified to avoid a preemption challenge.
The placement and use of navigational aids are essential to the safe and efficient operation of an airport and any regulation directed at these aids would most likely be preempted. Moreover, local government cannot require an airport to submit safety structures and equipment for discretionary approval. At most, local government can require an airport to submit plans demonstrating that the installation and location of these items are in compliance with federal regulatory requirements.
Accordingly, we propose that Condition 8 and Condition 9 in CUP 1404 be combined and revised as follows:
The permittee shall install and maintain all obstruction markers, wind cones, traffic directional indicators, and other appurtenant structures and safety equipment required by the Federal Aviation Administration and the California Department of Transportation Division of Aeronautics and submit plans demonstrating such compliance to the Department of Public Works Division of Aviation.
As for all other proposed conditions concerning the Airpark, we intend to work closely with staff to ensure that such conditions are consistent with the above analysis and comply with all pertinent federal law.
(1) The federal preemption doctrine applies with equal force to regulations adopted by a state or local government. However this memorandum addresses federal preemption only as it pertains to local regulations since the permit in question was issued by the Commission, a local governmental entity.
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