Smith, Kaufman and Hays, Circuit Judges.
The Town of Hempstead appeals under 28 U.S.C. § 1292(a)(1) from an order of the District Court for the Eastern District of New York, John F. Dooling, Jr., Judge, granting a preliminary injunction against enforcement of its Unnecessary Noise Ordinance (No. 25), Article II, as amended March 10, 1964, so far as it applies to aircraft using John F. Kennedy International Airport. Judge Dooling's opinion appears at 272 F. Supp. 226.
Since the District Court's complete and precise findings of fact (see appellant's appendix, pp. 200a-264a) as to a great number of technical matters are not being attacked on this appeal, a short statement of the facts may suffice. The Town of Hempstead, primarily residential, is the largest town in New York State, with an estimated population in 1963 of nearly 806,000. It lies to the east of John F. Kennedy International Airport ("JFK"), and it is estimated that 150,000 people live in its incorporated villages which lie within three miles of the Airport. These people share with many others, inside and outside Hempstead and across the country, a severe aircraft noise problem which has developed in the years since the Second World War. As the District Court said:
In the years since 1948 . . . turbo and fan jet aircraft have all but displaced turbo and piston driven propeller craft. Larger, heavier and faster than propeller craft, the jets have demanded lengthened runways, and exacted new constants of air traffic management . . . The inverted truncated cone of air space resting on the airport, that can be thought of as representing the zone marked by the jets' landing glide slopes of about three degrees, was far nearer the edges of the airport and closer down on the bordering communities. It was as if every existing propeller craft runway had been suddenly moved out toward the boundary of the airport . . . The impact on the surrounding communities was marked and unhappy. 272 F. Supp. at 228-229
Because of the frequency with which jets fly in and out of JFK, the problem in Hempstead may be somewhat worse than in other communities. The District Court found that:
There is credible evidence that the noise of an aircraft overflight in Hempstead is frequently intense enough to interrupt sleep, conversation and the conduct of religious services, and to submerge for the duration of the maximum noise part of the overflight the sound of radio, phonograph and television. (Finding 127)
There is credible evidence that the noise of an aircraft overflight in Hempstead is frequently intense enough to interrupt classroom activities in schools and to be a source of discomfort to the ill and distraction to the well. (Finding 128)
It is a fair inference from the affidavits, the demonstration [in the courtroom] of the sound levels recorded in the Town and the evidence of frequency of overflights that airplane noise is a factor of moment affecting the decisions of people to acquire or dispose of interests in real property in the areas within the Town affected by the sound of airplane overflights. (Finding 129)
In an attempt to deal with the problem, the Town added a new article to its Unnecessary Noise Ordinance, forbidding anyone from operating a mechanism or device (including airplanes) which creates a noise within the Town exceeding either of two "limiting noise spectra." Claiming that the ordinance would prohibit airplanes using JFK from flying over the town, and thus would restrict the landing and take-off patterns and procedures normally adhered to by those airplanes, nine major American-flag air carriers, The Port of New York Authority, Charles H. Ruby as president of the Air Line Pilots Association, three air line pilots, individually and as representatives of their class, and the Administrator of the Federal Aviation Agency (as intervenor) sued to enjoin the enforcement of the ordinance against them.
The Town argued initially that aircraft could fly over the Town in compliance both with the ordinance and with the FAA regulations governing landing and take-off patterns and procedures. There was no question, however, but that at the time the suit was brought, take-offs and landings at JFK regularly produced noise exceeding the relevant limiting noise spectrum of the ordinance.
The District Court made crucial findings of fact which contradict the Town's initial argument that compliance with the ordinance is possible without alterations in flight patterns and procedures, and the Town has now shifted its ground, arguing in essence that the ordinance is not an undue burden on interstate commerce, because "the Town has unveiled a plan pursuant to which approximately 98% of all flights will avoid the Town while, at the same time, the present traffic capacity will be unaffected." (Town's brief, p. 22).
The crucial findings of fact are Nos. 281-294.*fn1 The court found that compliance with the ordinance would be determinative of the altitudes at which and flight paths by which commercial aircraft could fly into and out of JFK; that the flight requirements flowing from the ordinance would be in large part incompatible with existing traffic patterns and FAA procedures; that compliance would mean redesigning of the flight patterns for JFK, together with a reintegration of the redesigned patterns with those for the other New York City airports, and that the safety margins of the existing procedures could not be preserved without restricting the traffic handling capacity of JFK; and that there is no reliable evidence that a set of procedures could be devised for JFK in the present state of aviation development which could, without substantial sacrifice of the interest in flight safety, assure compliance with the ordinance. None of these findings have been attacked on this appeal, except that the Town still insists that its alternate plan, submitted to the District Court, could steer most flights away from the Town, thus assuring compliance with the ordinance. Apart from the lack of a showing that the District Court's finding to the contrary is clearly erroneous, it is clear that given the necessary determination of the legal issues in the case, the Town's alternate plan, even if it were feasible, would be irrelevant.
On the basis of his detailed and thorough findings of fact, Judge Dooling concluded: (1) that the ordinance is an unconstitutional burden on interstate commerce; (2) that the area in which the ordinance operates has been pre-empted by federal legislation and regulation; and (3) that the ...