Daniel HOAGLAND, Karen Hoagland, Hoagland Family Limited Partnership and Clear Lake Management Corporation, Plaintiffs-Appellants, v. TOWN OF CLEAR LAKE, INDIANA; Robert D. Troll, Derold H. Covell, Emma J. Brown, William Geiger, Joe Driver, and Thomas Reith, individually and in their official capacity as current and former members of the Clear Lake Town Council and Plan Commission; Thomas Wehrenberg, in his official capacity as a former member of the Clear Lake Town Council and Plan Commission; Richard Allen Lehman, individually and in his official capacity as Town of Clear Lake Marshal and Clear Lake Zoning Inspector; Julie Azchrich, Barb Disser, Alan B. Larue and Thomas Reith, individually and in their official capacity as current and former members of the Board of Zoning Appeals of the Town of Clear Lake, Indiana, Defendants-Appellees.
No. 04-4045
United States Court of Appeals, Seventh Circuit
July 18, 2005
415 F.3d 693
The probation office‘s policy manual states that “to search an individual‘s home or auto, the officer must have some reasonable suspicion to suspect a violation of probation or a crime is being committed or has been committed.” Barnett argues that this provision should be considered an implicit term of his probation. But it is apparent from the caption of his probation decree—“Conditions of Intensive Probation Supervision“—that he was being subjected to restrictions that went beyond what the policy manual provides for ordinary probation. He argues that the inconsistency between the search provisions in the manual and in the decree makes his “contract” indefinite and it therefore should not be enforced. A contract can be denied enforcement by virtue of indefiniteness. E.g., Baker O‘Neal Holdings, Inc. v. Massey, 403 F.3d 485, 488 (7th Cir.2005); Haslund v. Simon Property Group, Inc., supra, 378 F.3d at 655; Echols v. Pelullo, 377 F.3d 272, 275 (3d Cir.2004). But in such a case the contract is rescinded, meaning that the parties are put back in the positions they would have occupied had there never been a contract. United States v. Cook, supra, 406 F.3d at 488; United States v. Bradley, supra, 381 F.3d at 648; Griggs v. E.I. DuPont de Nemours & Co., 385 F.3d 440, 447 (4th Cir.2004). So Barnett‘s bargained-for probation would be down the drain and presumably (though this would depend on particulars of state law that we have not investigated) he would be sent back to the state court for resentencing—and the new sentence might be a prison term tacked on to his 15-month federal term. United States v. Bownes, 405 F.3d 634, 637 (7th Cir.2005); United States v. Wagner, 103 F.3d 551, 552 (7th Cir.1996); United States v. Moulder, 141 F.3d 568, 571 (5th Cir.1998); United States v. Caldwell, 88 F.3d 522, 526 (8th Cir.1996). He clearly doesn‘t want that and so in response to a question from the bench told us that he was abandoning the argument.
AFFIRMED.
Decided July 18, 2005.
Dane L. Tubergen (argued), Hunt Suedhoff Kalamoros, Fort Wayne, IN, for Defendant-Appellee.
Michael W. Owen, Owen Law Group, Carmel, IN, for Amicus Curiae.
Before CUDAHY, EVANS, and WILLIAMS, Circuit Judges.
TERENCE T. EVANS, Circuit Judge.
This lawsuit, accurately described by Magistrate Judge Roger B. Cosbey as a feud, pits Daniel Hoagland and the other plaintiffs,1 owners of a heliport, against the town fathers of Clear Lake, Indiana, a very small and apparently wealthy community ringing the shores of an inland lake in northeastern Indiana. The town wants to get rid of the heliport and has amended its zoning ordinance (which originally did not mention landing strips) to make it applicable to landing strips and to require that the use of all preexisting unapproved landing areas be discontinued within 5 years.
Hoagland, a licensed pilot, lives in Clear Lake and commutes by helicopter to his electrical contracting business 60 miles away in Fort Wayne. To make his helicopter commute user-friendly, he constructed two landing pads on his property in Clear Lake. In 1999, the town sued Hoagland in Steuben County (Indiana) Superior Court, alleging that the helicopter takeoffs and landings were a “public nuisance.” The case was submitted to mediation. Although Hoagland did not know it, at that time Clear Lake had no existing ordinance governing landing strips, but, Hoagland contends, during the negotiations Clear Lake officials often alluded to one. Eventually a settlement was reached in which Hoagland agreed to abide by several restrictions on the helicopter operations and, in turn, Clear Lake agreed to pay him a sum “to be negotiated.” Hoagland claims Clear Lake never paid him anything and that he would not have agreed to the settlement had he known there was no ordinance in effect at the time.
Following the mediation, Clear Lake amended its existing zoning ordinance to designate an “[a]ircraft landing strip, pad, or space” as a “special use” requiring special permission of the Zoning Board of Appeals. It also provided that any preexisting unapproved aircraft landing area must be discontinued within 5 years or upon the transfer of the property.
One of the issues raised in this appeal is whether the ordinance should be invalidated because it is preempted by the Federal Aviation Act,
The preemption doctrine is based in the Supremacy Clause of the Constitution, which states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the Supreme Law of the land.”
Except as provided in this subsection, a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.
The question, then, is whether the Clear Lake ordinance relates to “price, route, or service of an air carrier.”
The plaintiffs argue that restricting Hoagland from making landings or departures from his helipad necessarily affects his route, and the ordinance is thus preempted. In support of this argument they point out that the helipads have been formally approved by federal and state authorities. In January 1996 and December 2000, the Federal Aviation Administration (FAA) issued Airspace Determinations which stated that daytime visual helicopter operations can be safely conducted at the Clear Lake Heliport. In February of 1996, the State of Indiana Department of Transportation Aeronautics Section issued a Certificate of Site Approval certifying that the Clear Lake Heliport has met the administrative requirements for a private-use heliport.
There is at least superficial force to the argument that the elimination of his helipad (the end result of the ordinance) would affect Hoagland‘s flight routes. Obviously it would. His route would no longer end in Clear Lake. But the question for us is whether the statute preempts so much, and we conclude that it does not. The Clear Lake ordinance is a land use, or zoning, ordinance, not a flight pattern regulation. We are not convinced that Congress meant to take the siting of air fields out of the hands of local officials. The siting of an airfield—so long as it does not interfere with existing traffic patterns, etc.—remains an issue for local control.
Cases from the Supreme Court and our sister circuits as well as FAA regulations support our conclusion. To see what is not preempted, we will first look at the kinds of regulations which are preempted. These include noise regulation ordinances and flight pattern controls. In City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973), the Supreme Court determined that in light of the pervasive nature of the scheme of federal regulation of aircraft noise, as evidenced by the Noise Control Act of 1972, the FAA and the Environmental Protection Agency had full control over airport noise, preempting local control. The Court of Appeals for the Eleventh Circuit followed suit in Pirolo v. City of Clearwater, 711 F.2d 1006 (11th Cir.1983), finding that local ordinances prohibiting night operations and proscribing air traffic patterns were preempted. The Court of Appeals for the Ninth Circuit found that curfews on aircraft flights were preempted in San Diego Unified Port Dist. v. Gianturco, 651 F.2d 1306 (9th Cir.1981).
In Abdullah v. American Airlines, Inc., 181 F.3d 363 (3d Cir.1999), the court found air safety regulations preempted. And a state statute requiring drug testing of pilots was found to be preempted in French v. Pan Am Express, Inc., 869 F.2d 1 (1st Cir.1989).
A case specifically on point is Condor Corp. v. City of St. Paul, 912 F.2d 215, 219 (8th Cir.1990), in which the court found there was no preemption in the denial of permission to operate a heliport:
Here, Condor asserts the City‘s action in denying its permit conflicts with the FAA‘s regulation of airspace. We see no conflict between a city‘s regulatory power over land use, and the federal regulation of airspace, and have found no case recognizing a conflict. See, e.g., Wright v. County of Winnebago, 73 Ill.App.3d 337, 29 Ill.Dec. 347, 352, 391 N.E.2d 772, 777 (1979) (FAA does not preempt local zoning authority); Garden State Farms, Inc. v. Bay, 77 N.J. 439, 390 A.2d 1177 (1978) (same). We therefore reverse and remand to the district court to dismiss the claim for lack of federal jurisdiction.
Similarly, in Gustafson v. City of Lake Angelus, 76 F.3d 778, 783 (6th Cir.1996), the court considered whether a city‘s prohibition against landing seaplanes on a city lake was preempted. Determining that a lake landing site was analogous to an airstrip on land, the court found that the prohibition was not preempted:
[W]e believe the United States’ sovereign regulation of the airspace over the United States and the regulation of aircraft in flight is distinguishable from the regulation of the designation of plane landing sites, which involves local control of land (or, in the present case, water) use.
The court looked for guidance to FAA regulations, specifically
The regulation is instructive. It provides, as to proposed airports, that the FAA will conduct an aeronautical study and issue a determination, considering matters such as the effect the proposed airfield would have on existing traffic patterns of neighboring airports and the effects on the existing airspace structure. But a “determination does not relieve the proponent of responsibility for compliance with any local law, ordinance or regulation, or state or other Federal regulation. Aeronautical studies and determinations will not consider environmental or land use compatibility impacts.” Implicit in the regulation is that the FAA will determine whether it has any objections to a proposed site, and if it does, the conditions set out in its objections must be met. But, on the other hand, if the FAA has no objection, before it can build an airfield the proponent must comply with local laws. In other words, the FAA leaves land use issues primarily to local governments.
In this case, the FAA Airspace Determination letters, which Hoagland obtained, recognize the boundaries of FAA determinations and make clear that certain issues remain for local control. Both letters contain basically the same language. We will quote from the December 2000 letter:
This determination does not mean FAA approval or disapproval of the physical
The FAA cannot prevent the construction of structures near a heliport. The heliport environs can only be protected through such means as local zoning ordinances or acquisitions of property rights.
Then the letters state quite clearly that local control remains:
This determination in no way preempts or waives any ordinances, laws, or regulations of any government body or agency.
The situation before us involves a local land use issue, which is clearly left to local control. For that reason, the Clear Lake ordinance is not preempted.
The plaintiffs also raise an issue of inverse condemnation. They seek compensation under the Takings Clause of the Fifth Amendment for the inverse condemnation of the land by Ordinance 268, adopted on April 9, 2001. Although inverse condemnation is a recognized cause of action, the plaintiffs come up short on this issue as well because their claim is not ripe.
Inverse takings claims under the United States Constitution do not become ripe until adequate state remedies are exhausted. Until that time, no constitutional violation has occurred. In Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), the Court pointed out that the Fifth Amendment does not proscribe the taking of property, but only the taking without just compensation. If a state provides adequate procedures of seeking just compensation, there can be no violation until the procedures have been used and compensation has been denied. This principle has recently been reaffirmed. In San Remo Hotel v. City and County of San Francisco, — U.S. —, 125 S.Ct. 2491, — L.Ed.2d — (2005), the Court determined that even though the Full Faith and Credit Clause precludes federal court relitigation of issues which were, in fact, decided in a state court case, nevertheless the ripeness rule of Williamson County still applies, and plaintiffs must take their case for compensation to the state courts. We have previously determined that Indiana law provides an adequate state remedy through
The plaintiffs say that they have, in fact, exhausted their state remedies because of a counterclaim filed in a lawsuit in 1999 asserting damages for inverse condemnation. That counterclaim, however, can have nothing to do with an alleged taking in 2001. The district court properly dismissed the inverse condemnation claim.
The civil rights claims—pursuant to
Finally, Judge Cosbey certainly acted wisely when he refused to exercise supplemental jurisdiction over Hoagland‘s many state law claims. Those claims, some of which raise novel questions—for example, Hoagland alleges that the Town of Clear Lake has never been “recognized as a legal entity“—are best left for decision by the state courts of Indiana.
For all of these reasons, the judgment of the district court is AFFIRMED.
TERENCE T. EVANS
Circuit Judge