City of Burbank v. Lockheed Air Terminal, Inc.: Federal Preemption of Aircraft Noise Regulation and the Future of Proprietary Restrictions


As a result of recent clinical studies which have revealed the adverse effects exposure to excessive noise may have on human physiology, there has been a professional and public outcry for noise pollution regulation. The need to reduce noise pollution is particularly acute in communities adjacent to airports. However, local regulatory schemes which might have proved effective have been held to be unlawfully restrictive, while federal legislation has not been effectively implemented. At the possible expense of leaving localities with virtually no protection, a court could hold that unenforced federal legislation is exclusive in the area of noise pollution regulation. Conversely, localities could be found to have a concurrent regulatory power or explicit police powers to regulate for health. Confronted with these legal alternatives, how is a court to determine whether local regulatory schemes should be upheld?

In the recent case of City of Burbank v. Lockheed Air Terminal, Inc., the Supreme Court reviewed a municipal curfew ordinance which sought to prevent noise pollution during certain hours of the night by prohibiting the use of the landing or takeoff facilities at Hollywood-Burbank Airport between 11:00 p.m. and 7:00 a.m. The City of Burbank promulgated this curfew restriction under its police powers to protect the health and safety of its citizens. It considered the ordinance to be a proper land use regulation because it affected land located within the city’s boundaries. Lockheed Air Terminal, Inc., the corporate owner and operator of the Hollywood-Burbank Airport, and Pacific Southwest Airlines, which scheduled the only flight affected by the Burbank ordinance, filed suit in Federal District Court for the Central District of California seeking injunctive relief and a declaratory judgment invalidating the Burbank ordinance. The district court found the ordinance to be unconstitutional on both supremacy clause and commerce clause grounds.10 The court of appeals affirmed on supremacy clause grounds. The Supreme Court affirmed, five to four, basing its decision on preemption grounds.

The Burbank case arose as the logical sequel to a series of noise pollution decisions which fall into two categories. The first category of cases involves the situation in which an individual, residing adjacent to an airport, has sought to collect damages from airports, operators of aircraft or both, either for the easement to airspace taken by frequent and regular flights over his land, or for the decline in value of his property under the doctrines of nuisance and trespass. The cases in this area represent the landowner’s initial response to noise pollution. The second category involves attempts by municipalities to protect the health and safety of their citizens by enacting, pursuant to their police powers, curfew ordinances designed to restrict the hours during which aircraft may take off and land at airports located adjacent to, but outside of the municipality.

Burbank itself denotes a third category: a municipality attempting, under its police powers, to restrict the land use of an airport located within the jurisdiction of that municipality by prescribing the hours during which the airport may operate. A fourth and final category of cases would involve a municipality in its role as both the proprietor of an airport and the government-protector of its citizens. This situation would encompass a combination of those powers present in the first three (e.g.,proprietary and police); ordinances passed by such municipalities would therefore come before the courts with the highest probability for constitutional validity. As yet, no restrictive ordinances have been promulgated by proprietary municipalities and no court has ruled on the validity of an ordinance of this type.

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