Pirolo v. City of Clearwater

711 F.2d 1006, 19 ERC 1682
CourtCourt of Appeals for the Eleventh Circuit
DecidedAugust 12, 1983
DocketNo. 82-5322
StatusPublished
Cited by46 cases

This text of 711 F.2d 1006 (Pirolo v. City of Clearwater) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pirolo v. City of Clearwater, 711 F.2d 1006, 19 ERC 1682 (11th Cir. 1983).

Opinions

FLOYD R. GIBSON,

Senior Circuit 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 Pi-rolo, 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. [1009]*1009In 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.

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Bluebook (online)
711 F.2d 1006, 19 ERC 1682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pirolo-v-city-of-clearwater-ca11-1983.