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June 27, 1955

ALLEGHENY AIRLINES, Inc., et al., Plaintiffs, Civil Aeronautics Board and Administrator of Civil Aeronautics, Intervenors,
VILLAGE OF CEDARHURST et al., Defendants

The opinion of the court was delivered by: BRUCHHAUSEN

The action involves the constitutionality of an ordinance, prohibiting air flights over the Village of Cedarhurst, below 1,000 feet. It does not affect the rights of property owners.

The action was tried without a jury, following an order striking out the defendants' demand for a jury trial. D.C., 15 F.R.D. 490.

 The plaintiffs, comprising ten Airline Companies, The Port of New York Authority, The Air Line Pilots Association International and nine air pilots in their individual capacities, having interests in and concerning New York International Airport, known as 'Idlewild', situated in Queens County, State of New York, instituted this action against the Village of Cedarhurst and various named defendants in their official and individual capacities for a decree, adjudging unconstitutional and void and enjoining enforcement of an ordinance adopted by the said Village which prohibited the operation of aircraft below an altitude of 1,000 feet above the village. The Village is situated within a mile of the Airport.

 The Administrator of Civil Aeronautics and the Civil Aeronautics Board intervened as plaintiffs in the action.

 Since the commencement of the action, the original plaintiff, All American Airways, Inc., changed its name to Allegheny Airlines, Inc.

 Prior to the trial, a preliminary injunction order in favor of the plaintiffs was granted by this Court and affirmed on appeal, 106 F.Supp. 521; Id., 2 Cir., 201 F.2d 273, and a motion to dismiss a counterclaim contained in the answer of the individual defendants was denied, D.C., 111 F.Supp. 677. During the trial, counterclaims of the individual defendants, who were owners of dwellings situated within the village boundaries, and demands for judgment declaring the Airport to be a nuisance and for an injunction restraining the commission of trespass, were withdrawn. All of the defendants, in their pleadings, sought a dismissal of the complaint and, in addition thereto, the individual defendants questioned the validity of Federal regulations and statutes, authorizing the flight of aircraft at less than 1,000 feet above the Village and sought a decree, declaring them unconstitutional and void.

 The specific issue presented.

 The basic question presented was whether Congress pre-empted the field of regulation and control of the flight of aircraft, including the fixation of minimum safe altitudes for take-offs from and landings at airports, despite the fact that such altitudes might be less than 1,000 feet. More particularly, the question is what, if any, airspace below the altitude of 1,000 feet Congress has determined to be navigable airspace, subject to flight control.

 The origin and development of public airports, including Idlewild Airport, and related matters.

 It is common knowledge that the use of airplanes in World War I for military purposes gave impetus to the development of planes for commercial use.

 While Congress, more than 30 years prior to that event, had legislated in the branch of transportation pertaining to railroads and created the Interstate Commerce Commission to carry on that function, the first legislation recognizing the airplane as an instrument of transportation in commerce was the Air Commerce Act of 1926, following a message from President Coolidge to Congress stating that 'aviation is of great importance both for national defense and commercial development.' By that Act, 49 U.S.C.A. § 171 et seq., the Secretary of Commerce was empowered to provide for registration of aircraft; for the rating of aircraft as to worthiness; for the periodic examination and rating of air pilots; for the examination and rating of air navigation facilities available for the use of aircraft; for the establishment of air traffic rules and for the suspension and revocation of any of the certificates issued by the Secretary.

 An early public expression of opinion that municipalities should build airports for the new traffic was the statement made in 1928 by Chief Judge Cardozo in the case of Hesse v. Rath, 249 N.Y. 436, 164 N.E. 342, viz.:

 'Aviation is to-day an established method of transportation. The future, even the near future will make it still more general. The city that is without the foresight to build the ports for the new traffic may soon be left behind in the race of competition. Chalcedon was called the city of the blind, because its founders rejected the nobler site of Byzantium lying at their feet. The need for vision of the future in the governance of cities has not lessened with the years. The dweller within the gates, even more than the stranger from afar, will pay the price of blindness.'

 Rapid development of aviation resulted in the more comprehensive statute, the Civil Aeronautics Act of 1938, 49 U.S.C.A. § 401 et seq. By it was created a new Civil Aeronautics Board and a separate administrator and the Secretary of Commerce was relieved of jurisdiction. Congress thereby stressed the need for the development of aviation and the promotion of safety of operation and imposed upon the administrator consideration of 'the encouragement and development of an air-transportation system properly adapted to the present and future needs of the foreign and domestic commerce of the United States, of the Postal Service, and of the national defense'.

 Congress, increasingly aware of the need of control of the means of transportation in interstate commerce, in 1940, 49 U.S.C.A. § 301 et seq., enlarged the jurisdiction of the Interstate Commerce Commission by charging it with the function of regulating the activities of motor carriers, thus largely replacing the control exercised over those means of transportation by States and Municipalities.

 That Congress contemplated and enacted legislation for the comprehensive regulation of air commerce and that the objectives have been carried out was indicated in the concurring opinion of Mr. Justice Jackson in the case of Northwest Air Lines v. State of Minnesota, 1944, 322 U.S. 292, 303, 64 S. Ct. 950, 956, 88 L. Ed. 1283, wherein he said:

 'Congress has recognized the national responsibility for regulating air commerce. Federal control is intensive and exclusive. Planes do not wander about in the sky like vagrant clouds. They move only by federal permission, subject to federal inspection, in the hands of federally certified personnel and under an intricate system of federal commands. The moment a ship taxis onto a runway it is caught up in an elaborate and detailed system of controls. It takes off only by instruction from the control tower, it travels on prescribed beams, it may be diverted from its intended landing, and it obeys signals and orders. Its privileges, rights, and protection, so far as transit is concerned, it owes to the Federal Government alone and not to any state government.'

 Idlewild Airport originated in the year 1941, when the site was selected. The airport comprises approximately 4,900 acres of land, acquired by the City of New York from private owners, and, in part, by conveyances by the Town of Hempstead, wherein the defendant Village of Cedarhurst is situated, and by the State of New York. It was necessary to procure acts of the Legislature of that State, authorizing those conveyances. By Chapter 369 of the Laws of 1942 of that State, the Town of Hempstead was authorized to convey, gratis, to the City of New York 65 acres of land under water in Jamaica Bay, as laid out on the plan for the construction of Idlewild Airport, to be held by the grantee so long as the property should be used as an airport and related purposes and upon termination of such use to revert to the Town. The Town of Hempstead, pursuant to that statute, by deed dated May 4, 1942, conveyed the said land for that purpose and under the said condition. As part of the program, the boundary lines between the City of New York, County of Nassau and the Town of Hempstead were fixed by Chapter 895 of the Laws of 1945 of the State. The grant by the State of New York to the City of New York was perfected by Chapter 866 of the Laws of 1946, whereby lands under water in Jamaica Bay, formerly in Nassau County, 'required by the city of New York for the municipal airport of Idlewild, Queens county,' were conveyed.

 Congress, during the same year, further pursued the announced plan of encouraging and aiding in the development of public airports by the enactment of a Statute entitled, 'Federal Aid for Public Airport Development', 49 U.S.C.A. § 1101 et seq., and made large appropriations 'to provide a system of public airports adequate to anticipate and meet the needs of civil aeronautics.'

 The State of New York actively participated in approving Idlewild as a public airport and in enabling its agency, The Port of New York Authority, to lease the airport from the City of New York and further develop it. The Authority was created in 1921, McK.Unconsol.Laws, § 6401 et seq., by a compact between the States of New York and New Jersey, with the consent of Congress Resolution Aug. 23, 1921, 42 Stat. 174. It was empowered to develop and operate terminal and transportation facilities in metropolitan New York and New Jersey and to promote and protect commerce in the area. Pursuant to Chapter 802 of the Laws of New York of the year 1947, McK.Unconsol.Laws, § 6601 et seq., and a similar statute, enacted by the State of New Jersey, N.J.S.A. 32:1-35.1 et seq., the Authority during that year entered into a lease of Idlewild for a long term of years from the City of New York. The said New York statute also authorized the Authority to apply for federal loans or grants in aid of air terminals. The policy of the State with respect to airports was set forth in the statute, viz.:

 '* * * that the problem of furnishing proper and adequate air terminal facilities within the district is a regional and interstate problem, and that it is and shall be the policy of the two states (New York and New Jersey) to encourage the integration of such air terminals * * *.

 'The effectuation, establishment, acquisition, construction, rehabilitation, improvement, maintenance and operation of air terminals by the Port Authority is and will be in all respects for the benefit of the people of the states of New York and New Jersey, for the increase of their commerce and prosperity * * * and the Port Authority shall be regarded as performing an essential governmental function in undertaking the effectuation, establishment, acquisition, construction, rehabilitation, improvement, maintenance or operation thereof, and in carrying out the provisions of law relating thereto.' McK.Unconsol.Laws, §§ 6601, 6604.

 Pursuant to The Federal Airport Act, supra, the Federal Government agreed to advance approximately $ 4,000,000 for improvements to Idlewild Airport.

 Idlewild Airport was opened by July 1, 1948. It is one of the largest and safest public airports in the world. It has ten miles of runways, each with a length of from one to two miles. More than one million overseas passengers annually use the airport, comparable to the number of passengers traveling by ship through the Port of New York. In the year 1953, the numbers of passengers and the freight passing through the airport were as follows: 2,402,094 passengers, 88,276,700 pounds of freight and 20,413,200 pounds of air mail. Eleven domestic and thirteen foreign airlines are engaged in the service.

 Under the Civil Aeronautics Act of 1938 it devolved upon the Board 'to promote safety of flight in air commerce by prescribing and revising from time to time' minimum standards for construction of aircraft, and aircraft appliances, reasonable rules and minimum standards for the inspection, servicing and overhauling of aircraft, rules governing the reserve supply of aircraft, parts and fuel and the maximum hours of airmen and other employees, air traffic rules and such other rules and standards as might be found necessary to promote safety in air commerce. Section 601 of the Statute empowered the Board to prescribe:

 'Air traffic rules governing the flight of, and for the navigation, protection, and identification of, aircraft, including rules as to safe altitudes of flight and rules for the prevention of collisions between aircraft, and between aircraft and land or water vehicles.'

 The Board and the Administrator, pursuant to the Statute, adopted air traffic rules, controlling operation of aircraft throughout the United States, including the establishment of civil airways, likened to a system of highways for surface traffic (14 C.F.R.). Each airway is a path having a width of ten miles, between two airports, extending from an altitude of 700 feet above the surface of the land to infinity and is identified to the pilot by radio navigation aids. There are control areas around large cities for the regulation of air traffic entering, leaving or passing through the area, also control zones around each airport for even more detailed supervision of the flight of aircraft, leaving or passing through the zones.

 The Village of Cedarhurst lies directly under at least one of the civil airways. It is embraced within the control area, designated as extending in a radius of approximately 40 miles from the Empire State Building and lies within the control zone of the Idlewild Airport, designated by the Administrator to embrace an area within a five mile radius of Idlewild. Air traffic along the aforementioned civil airways is controlled by some 28 air traffic control centers, whose jurisdiction extends outward from the Metropolitan centers. These centers regulate traffic on the airways system into and out of control areas, handing it over to or taking it from the airport towers at a point which varies with conditions, but which extends somewhat outside of the control zone. The New York center is located at LaGuardia Field and its continental jurisdiction is bounded by a line extending from Hartford on the north to Binghampton, New York, on the northwest to Elmira, New York, and Brookville, Pennsylvania, west of Harrisburg, to a point midway between Baltimore and Philadelphia, and then to Salisbury, Maryland. It also exercises oceanic air traffic control over international flights.

 The record shows in detail the manner wherein, in the interest of safety, this comprehensive control is set up, for the regulation of traffic operating in accordance with Instrument Flight Regulations, termed IFR, into and out of New York City. There is coordination between the New York Center and contiguous centers. Aircraft operating in the New York area is controlled by the New York Center until it is turned over to the Idlewild Airport control at a point where the plane has ceased to be a factor in the New York Center's other traffic, usually in the vicinity of the Scotland Beacon.

 Once the aircraft has been turned over by the New York Center to the Idlewild tower it is then subjected to even more detailed directions which govern it until it reaches its final destination on the runway of the airport. There are three separate phases in the normal control of an aircraft landing at Idlewild under IFR conditions, each under the direction of a separate controller. First, there is the basic approach under the direction of the approach controller, operating from the instrument flight room in the tower. The latter is assisted by a controller in the liaison position, whose duty is to exchange information with other airports and facilities, and by radar observance of incoming flights. Operators of aircraft, approaching the Scotland Beacon at an altitude assigned to such aircraft by the New York Air Traffic Center, contact the Idlewild Approach Center. The aircraft then circle Scotland Beacon at the assigned altitude in a holding pattern. In this pattern aircraft are kept vertically separated at 1,000 feet intervals. Secondly, the approach controller directs the lowest aircraft in the Scotland holding pattern onto the instrument glide path of the Instrument Landing System which provides a precise means of navigation from the southwest onto Runway No. 4 at Idlewild Airport. He maintains a separation of three miles between aircraft on approach to the airport and can have up to three aircraft on final approach at the same time. Separation is achieved by observation on a radarscope. When the aircraft has left Scotland Beacon on its final approach, the approach controller normally instructs the pilot to contact the local tower controller who has the responsibility for the second phase of the operation, pertaining to actual landing clearance of the aircraft. As the aircraft touches down at the airport it comes under the supervision of the ground controller for the third and final phase of the landing, including the direction of the plane along the airport's taxi areas to the proper 'terminal gate'. There are 178 airports in this country at which operations are directed by the Civil Aeronautics Authority in accordance with uniform rules.

 The Administrator has established instrument approach rules to be followed by aircraft landing at Idlewild. Such rules are mandatory when certain conditions prevail. Procedures require that aircraft approach Idlewild from the Scotland Beacon to the southwest in line with the end of Runway No. 4. If a ceiling of between 200 and 500 feet prevails with a visibility of not less than one-half mile, the aircraft will land on that runway, wind direction and strength permitting, and not pass over Cedarhurst. When the ceiling is between 500 and 1,000 feet, with not less than one and a half miles of visibility, and wind conditions prevent a landing on said runway, aircraft come in on the instrument glide path, break through the ceiling to the southwest of the end of said runway, circling to the east and north to land on the runway designated by the control tower. The uncontradicted testimony is that, when ...

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