Harrison v. Schwartz

572 A.2d 528, 319 Md. 360, 1990 Md. LEXIS 65
CourtCourt of Appeals of Maryland
DecidedApril 19, 1990
Docket89, September Term, 1989
StatusPublished
Cited by21 cases

This text of 572 A.2d 528 (Harrison v. Schwartz) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harrison v. Schwartz, 572 A.2d 528, 319 Md. 360, 1990 Md. LEXIS 65 (Md. 1990).

Opinions

ADKINS, Judge.

When the Carroll County Board of Zoning Appeals granted a conditional use for a privately owned airport in 1982, it attached to that grant several conditions. One of them limited the frequency of take-offs of glider-towing aircraft; another established a curfew for the operation of those aircraft. Both conditions were designed to reduce the effect of aircraft engine noise on residential properties near the airport. Both are invalid. They trespass upon a field that has been impliedly preempted by federal law. City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973). A sketch of the pertinent facts before us places the preemption issue in context.

I.

In 1972 petitioner Robert E. Harrison (Harrison) obtained from the Board of Zoning Appeals for Carroll County (the Board) a conditional use permit to operate a “private airport site and drop zone for parachutists” on a portion of his farm located near Woodbine in Carroll County. The parachutists, who used a single aircraft, were members of a small skydiving club which engaged in that activity mostly on weekends during the warmer months. The conditional use was subject to a condition requiring the establishment of parking facilities and to continued approval by the State Aviation Commission.

As time passed the parachuting activity diminished. By the early 1980’s, petitioner Jerry Gaudet was leasing the Woodbine airport and running petitioner Bay Soaring, a glider organization, which used the airport for glider operations. (We shall refer to petitioners collectively as “Bay [363]*363Soaring.”). The airport stayed open every day. The gliders ordinarily were towed aloft by aircraft; sometimes as many as 90 flights a day were generated. Bay Soaring solicited the public to take lessons and rides at Woodbine. The facility had obtained from the State Aviation Administration an airport operating certificate designating the “Woodbine Glider Port” to operate as a “Licensed Private/Commercial Airport.”

Harrison’s neighbors (respondents Bernard A. Schwartz and others, hereinafter collectively “the Neighbors”) were not pleased. Their protests resulted in a 1982 hearing before the Board, after which the Board concluded that the use of the airport had expanded beyond the limits of the 1972 conditional use. Under protest, Bay Soaring applied for a new conditional use permit.1

Hearings were held on that application. The Neighbors opposed it, expressing concern about aircraft engine noise, among other things. The Board granted a new permit, but attached to it eight conditions. Two of them are the basis of the controversy in this case. They are:

2. Aircraft take-offs shall be separated by intervals of at least 15 minutes in order to minimize the adverse effects of aircraft engine noise upon the residents of the surrounding area and to reduce the intensification of the use of the property in what is otherwise a primarily rural residential area.
3. Aircraft take-offs shall not be made before 9:00 a.m. o later than 7:00 p.m. on any day.

A third condition imposed by the Board was:

7. [Bay Soaring] will design take-off and landing patterns in such a way that they will minimize the adverse effect upon the neighboring residents. In addition [Bay Soaring] shall require people taking-off and landing from [364]*364the airfield to be familiar with the landing and take-off patterns and to use them.

When Bay Soaring appealed, the Circuit Court for Carroll County found that “[i]n imposing the ... Conditions, airport noise appears to have been the Board’s paramount concern____” It held that these three conditions were invalid because of federal preemption. It remanded to the Board for further proceedings. The Neighbors and Carroll County (the County) appealed to the Court of Special Appeals, which held that condition 7, dealing with the conduct of flight in navigable airspace, was preempted. But it thought conditions 2 and 3 were not preempted. At the behest of Bay Soaring, we issued a writ of certiorari. 317 Md. 440, 564 A.2d 784 (1989).

II.

The United States Constitution “and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States [are] the supreme Law of the Land.” U.S. Const. art. VI, cl. 2. See also Md.Decl. of Rights, Art. 2. Because of this supremacy, valid federal legislation and regulations may preempt state or local laws or regulatory actions. When valid federal law actually conflicts with state law, the former preempts the latter. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 621, 78 L.Ed.2d 443, 452 (1984). And “[i]f Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted.” Id. We have recognized that “[i]f the federal law expressly states a preemptive intent, that intent will govern.” Becker v. Litty, 318 Md. 76, 86, 566 A.2d 1101, 1106 (1989) (citing Hillsborough County v. Automated Medical Labs., 471 U.S. 707, 713, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714, 721 (1985)). Moreover, even absent express preemption, when [365]*365“a federal statute made ‘in Pursuance’ of the Constitution is so comprehensive that [it occupies the field leaving] no room for state action,” preemption also occurs. Becker, 318 Md. at 86, 566 A.2d at 1106. We deal here with implied preemption of the “occupy-the-field” variety.

The Commerce Clause of the United States Constitution (art. I, § 8, cl. 3) gives Congress the power to control air traffic. City of Burbank, 411 U.S. at 625, 93 S.Ct. at 1855-1856, 36 L.Ed.2d at 549. Pursuant to that power, Congress has enacted the Federal Aviation Act of 1958, 72 Stat. 731, and amended it by the Noise Control Act of 1972, 86 Stat. 1234. See 49 U.S.C.App. §§ 1301 et seq. The Noise Control Act provides that

In order to afford present and future relief and protection to the public health and welfare from aircraft noise and sonic boom, the FAA, after consultation with the Secretary of Transportation and with EPA, shall prescribe and amend standards for the measurement of aircraft noise and sonic boom and shall prescribe and amend such regulations as the FAA may find necessary to provide for the control and abatement of aircraft noise and sonic boom, including the application of such standards and regulations in the issuance, amendment, modification, suspension, or revocation of any certificate authorized by this subchapter. No exemption with respect to any standard or regulation under this section may be granted under any provision of this chapter unless the FAA shall have consulted with EPA before such exemption is granted, except that if the FAA determines that safety in air commerce or air transportation requires that such an exemption be granted before EPA can be consulted, the FAA shall consult with EPA as soon as practicable after the exemption is granted.

49 U.S.C.App. § 1431(b)(1). Under the same section, the EPA is required to

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Harrison v. Schwartz
572 A.2d 528 (Court of Appeals of Maryland, 1990)

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Bluebook (online)
572 A.2d 528, 319 Md. 360, 1990 Md. LEXIS 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrison-v-schwartz-md-1990.