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San Diego Unified Port Dist. v. Superior Court for County of San Diego

Citation: 7 ELR 20668
No. No. Civ. 16142, 136 Cal. Rptr. 557/67 Cal. App. 3d 36, (Cal. Ct. App., 02/18/1977)

Homeowner plaintiffs sued an airport operator, the Port District, claiming that the airport's operation so interfered with their ownership rights as to be an inverse condemnation entitling them to just compensation. Plaintiffs also sought damages on theories of nuisance, negligence, trespass, and failure of the Port District to obtain a proper operating permit. The Port District sought a peremptory writ to reverse the Superior Court's action in overruling a general demurrer to all the counts. The court holds that plaintiffs may not recover tort damages from the airport operator for harm caused by aircraft in flight, but that federal preemptiondoes not preclude recovery for damages from tortious maintenance of the airport by the proprietor. The petition is therefore denied.

The Port District argued that federal legislation and regulation in the field of aircraft and airport noise is so pervasive that it has preempted all state and local control. Plaintiffs, however, differentiated federal preemption in the field of noise regulation from the duty of the airport proprietor to operate the facilities nontortiously. Thus, the court distinguishes the exercise of police power by a municipality to control airport noise from the exercise of proprietary power by the airport owner/operator.

The court notes the rationale behind the leading case of federal preemption of airport noise regulation, City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 3 ELR 20393 (1973), as requiring uniform and exclusive federal regulation. If a flight curfew interferes with the uniformity, it is irrelevant to this court whether the curfew is imposed on the authority of the local police power or the airport owner's proprietary power because the effect is the same. Footnote 14 in the Burbank opinion, which said that the Court would "not consider here what limits, if any, apply to a municipality as a proprietor," did not mean that no limits apply to a municipal proprietor. The court criticizes National Aviation, Inc. v. City of Hayward, 418 F. Supp. 417, 6 ELR 20649 (N.D. Cal. 1976), because it doubts the Burbank Court intended the Hayward results of allowing a municipality to use its proprietary power to restrict an activity that it could not regulate under its police power.

The court is persuaded by the Port District's argument that awarding money damages is as much regulation of conduct as an injunction or legislative activity, San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), and that awarding money damages in this action would be punishing conduct which is exclusively within federal jurisdiction. The court finds persuasive a similar decision, Luedtke v. County of Milwaukee, 521 F.2d 387, 5 ELR 20535 (7th Cir. 1975), where the court rejected claims for injunctive relief and tort damages but acknowledged the right of plaintiffs to seek inverse condemnation damages because aircraft flights may have resulted in a taking of their property.

The court proceeds to compare two recent California federal court decisions on the issue of preemption with Burbank, reconciling Air Transport Association of America v. Crotti, 389 F. Supp. 58, 5 ELR 20236 (N.D. Cal. 1975) with that decision, and criticizing Hayward as contrary to it. In Crotti, the court upheld monitoring procedures for aircraft noise as "innocuous to aircraft traffic" and not in direct conflict with federal regulations. The noise prohibition regulations were not so free of conflict, however. Thus, the validity of the attempted regulation depends upon the nature of the activity being regulated, land management versus air space management, rather than whether the police or proprietary power is used. The Hayward decision, however, dealt with a noise prohibition similar to the one struck down by the Burbank Court as being in conflict with federal uniformity. The Hayward court upheld the prohibition simply because it was an exercise of proprietary power.

Finally, the court dismisses plaintiffs' attempted reliance on several California state decisions because either they were decided before Burbank or federal preemption was not at issue. The court concludes its decision by denying recovery for plaintiffs from tort damages: "To authorize recovery from the proprietro of an airport for injuries caused by aircraft in flight would permit local liability for conduct within exclusive federal control." On the other hand, federal preemption would not preclude an action for tortious mismanagement of the airfield, and plaintiffs have stated a cause of action for damages which arise out of the operation of the airport itself. The petition for a peremptory writ to reverse the court's overruling of the general demurrer is therefore denied.

The full text of this opinion is available from ELR (6 pp. $0.75, ELR Order No. C-1133).

Counsel for Petitioners
Louis E. Goebel, Michael S. Gatzke, Ronald W. Rouse, Walter J. Cummings, III
Luce, Forward, Hamilton & Scripps
Bank of California Plaza, 110 West A St., San Diego CA 92101
(714) 236-1414

Counsel for Respondent
no appearance

Counsel for Real Parties in Interest (plaintiffs in original suit) Roger A. Britt, et al.
Michael M. Berger, Patsy Humiston Carter
Fadem, Berger, McIntire & Norton
501 Santa Monica Blvd., Santa Monica CA 90401
(213) 451-9951

Ault, J.