Hoagland, Daniel v. Clear Lake Indiana

In the
United States Court of Appeals
For the Seventh Circuit
____________

No. 04-4045
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.
2 No. 04-4045

____________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 1:03-CV-241—Roger B. Cosbey, Magistrate Judge.
____________
ARGUED JUNE 8, 2005—DECIDED JULY 18, 2005
____________

Before CUDAHY, EVANS, and WILLIAMS, Circuit Judges.
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 dis-
continued within 5 years. At some point, Hoagland made
his opposition to the town’s actions rather clearly known by
posting a homemade “No Trespass” sign warning that
“[t]his land is privately owned by an American national,
with sovereign rights of God the Creator,” and that “[v]io-
lations of the owners [sic] Private Christian, or property
rights . . . shall be assessed a civil penalty of one million
dollars in U.S. Dollars for each violation” as well as “up to
ten years in prison.” (Underlining omitted.) It is no wonder,
then, that the plaintiffs challenged the town’s right to

1
When we refer to “Hoagland,” we mean Daniel Hoagland,
clearly the moving force behind this lawsuit.
No. 04-4045 3

regulate landing strips in the present case—which is, by the
way, not the only litigation involving these parties. In this
case, the parties filed cross-motions for summary judgment
in the district court. The defendants’ motion was granted
and the plaintiffs appeal. Our review is de novo. Nese v.
Julian Nordic Constr. Co., 405 F.3d 638 (7th Cir. 2005).
Hoagland, a licensed pilot, lives in Clear Lake and com-
mutes 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 con-
tends, 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 permis-
sion 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, 49 U.S.C. § 40101 et seq.
4 No. 04-4045

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.” U.S. Const., art. VI, cl. 2. The clause has been inter-
preted as supporting three ways in which federal law can
preempt state and local law: express preemption, conflict (or
implied) preemption, and field (or complete) preemption.
Boomer v. AT&T Corp., 309 F.3d 404, 417 (7th Cir. 2002).
Express preemption occurs when a federal statute explicitly
states that it overrides state or local law. Conflict preemp-
tion exists if it would be impossible for a party to comply
with both local and federal requirements or where local law
“stands as an obstacle to the accomplishment and execution
of the full purposes and objectives of Congress.” Freightliner
Corp. v. Myrick, 514 U.S. 280, 287 (1995) (quoting Hines v.
Davidowitz, 312 U.S. 52, 67 (1941)). Field preemption occurs
when federal law so thoroughly “occupies a legislative field”
as to make it reasonable to infer that Congress left no room
for the states to act. Cipollone v. Liggett Group, Inc., 505
U.S. 504, 516 (1992).
In the district court, according to Judge Cosbey, the
plaintiffs’ briefs were “hazy” on which preemption theory
was being propounded. On appeal, it seems relatively clear
they are relying on express preemption. They contend that
49 U.S.C. § 41713(b)(1) preempts the local ordinance. That
section provides:
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 re-
lated 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.”
No. 04-4045 5

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 adminis-
trative 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 regu-
lation ordinances and flight pattern controls. In City of
Burbank v. Lockheed Air Terminal, 411 U.S. 624 (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
6 No. 04-4045

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 pre-
empted. 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).
These cases have one thing in common. They involve
issues which reach far beyond a single local jurisdiction and
which cannot sensibly be resolved by a patchwork of local
regulations. It would be unmanageable—say nothing of
terrifying—to have local control of flight routes or of flight
times. Such things require nationwide coordination. But the
issue of where a local governing body chooses to site an
airport is different. When an airport is proposed, the FAA
makes a determination of the safe and efficient use of the
airspace in regard to the airport, but in situations such as
the one before us, the agency leaves the decision not to
allow a landing strip to the discretion of the local govern-
ment.
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 per-
mission 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
No. 04-4045 7

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 jurisdic-
tion.
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 regula-
tion 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, specifi-
cally 14 C.F.R. § 157.7(a).
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 determina-
tions will not consider environmental or land use compati-
bility 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
8 No. 04-4045

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 development involved in the
proposal. It is a determination with respect to the safe
and efficient use of airspace by aircraft and with respect
to the safety of persons and property on the ground.
In making this determination, the FAA has considered
matters such as the effect the proposal would have on
existing or planned traffic patterns of neighboring air-
ports, the effects it would have on the existing airspace
structure and projected programs of the FAA, the ef-
fects it would have on the safety of persons and prop-
erty on the ground, and the effects that existing or
proposed man-made objects (on file with the FAA) and
known natural objects within the affected area would
have on the heliport proposal.
The FAA cannot prevent the construction of structures
near a heliport. The heliport environs can only be pro-
tected 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.
No. 04-4045 9

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 reme-
dies are exhausted. Until that time, no constitutional viola-
tion has occurred. In Williamson County Regional Planning
Commission v. Hamilton Bank, 473 U.S. 172 (1985), the
Court pointed out that the Fifth Amendment does not pro-
scribe 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, 125 S. Ct.
2491 (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 Ind. Code § 32-24-1-16; see SGB Fin.
Servs., Inc. v. Consolidated City of Indianapolis-Marion
County, Indiana, 235 F.3d 1036 (7th Cir. 2000).
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 al-
leged taking in 2001. The district court properly dismissed
the inverse condemnation claim.
10 No. 04-4045

The civil rights claims—pursuant to 42 U.S.C. §§ 1983,
1985, and 1986—were also properly dismissed for a number
of reasons, not the least of which is the statute of limita-
tions. For §§ 1983 and 1985 claims, the statute of limita-
tions is determined by the law of the state in which the
violation took place. Wilson v. Garcia, 471 U.S. 261 (1985).
Indiana’s statute of limitations for personal injury claims is
2 years. Ind. Code § 34-11-2-4; Coopwood v. Lake County
Cmty. Dev. Dep’t, 932 F.2d 677 (7th Cir. 1991). Section 1986
contains its own one-year statute of limitations. All of the
claims here are outside these limitations periods. This
lawsuit was filed on June 23, 2003. The civil rights claims
are based on the 1999 filing of the state court suit; the
alleged misrepresentations during settlement negotiations,
which occurred on April 14, 2000; and the enactment of the
ordinances, which were last substantively amended on April
9, 2001. The attempts to cast the claims in ways which
would avoid the limitations problem are unavailing. The
continuing violation doctrine, the discovery rule, and the
doctrine of equitable estoppel all are inapplicable to the
particular facts of this case.
Finally, Judge Cosbey certainly acted wisely when he re-
fused 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.
No. 04-4045 11

A true Copy:
Teste:

________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit

USCA-02-C-0072—7-18-05