Number 3. July 22, 1974

Number 3. July 22, 1974 Honorable Crocker Snow Director of Aeronautics Logan Airport East Boston, Massachusetts 02128 Dear Mr. Snow: With respect to your duties as Executive Director of the Mas- sachusetts Aeronautics Commission, you have requested my opinion whether vessels come within the definition of structures under St. 1951, c. 799, § 1. The vessels in question are those which have masts or super- structures over a certain length and which pass the approach end of runway 4-R at General Edward Lawrence Logan International Airport (Logan Airport). The height of these vessels is such as to extend into airport approach zones established pursuant to St. 1951, c. 799. You state that if these vessels were restricted from passing within that run- way during times of low visibility, a significant increase in the usable length of the runway would be provided. I do not reach the merits of this issue because it is my opinion that St. 1956, c. 465, which created the Massachusetts Port Authority and defined its powers and duties, re- pealed St. 1951, c. 799 by implication. The Massachusetts Aeronautics Commission has general regulatory authority over airports in the Commonwealth. G. L. c. 90, §§ 35-52. The particular provision relating to structures within airport approaches specifically provides that ''[t]he provisions of this section shall not apply ... to air approaches to the General Edward Lawrence Logan Interna- tional Airport." G. L. c. 90, § 35B, as inserted by St. 1960, c. 756, § 1. Any authority which the Commission might have with respect to Logan Airport derives from St. 1951, c. 799, §§ 1-11, entitled, ''An Act Estab- lishing Airport Approach Zones for the General Edward Lawrence Logan Airport." Section 3 of c. 799 provides for the establishment of airport approach zones as shown on a map filed in the office of the State Secretary. "[A]ny structure or tree which extends into any airport ap- proach zone" is defined by § 1 as an "[ajirport hazard." Under § 4 the Commission may "take by eminent domain, or acquire by purchase or otherwise, any airport hazard or the land on which it stands, or both." 46 P.D. 12 In 1956 the Legislature established the Massachusetts Port Authority to take over the management, control and operation of Logan Airport. St. 1956, c. 465, §§ 1-35. The Authority was authorized under § 4 to ac- quire by purchase or to take by eminent domain property which it deemed essential for its operation. In particular, it was authorized to "order the removal or relocation of any surface tracks, and the removal or relocation of any conduits, pipes, wires, poles or other property lo- cated in public ways or places, or in or upon private lands, which it deems to interfere with the laying out, construction or operation of any project, and the proper authorities shall grant new locations for any such structure so removed or relocated, and the owner thereof shall be reim- bursed by the Authority for the reasonable cost of such removal or relo- cation.'' (Emphasis supplied.) The Authority is also authorized to apply for and receive federal grants for the planning, construction or financing of airport facilities. St. 1956, c. 465, § 3(n). One of the conditions to the receipt of such funds under federal law is that the local authority ensure the removal of struc- tures that might constitute airport hazards. 49 U.S.C. § 1718(3); Jankovich v. Indiana Toll Road Commission, 379 U.S. 487 (1965). The establishment of airport approach zones by the Authority would thus also be authorized by that provision which authorizes "all acts and things necessary or convenient to carry out the powers expressly granted in this act." St. 1956, c. 465, § 3(p). The authority to establish clear zones,' which is impHcit in St. 1956, c. 465, was made explicit by St. 1963, c. 410, which prohibited the Author- ity from acquiring, by the exercise of eminent domain, certain land in a westerly direction "except for the purpose of protecting the aerial ap- proaches to runways in accordance with applicable federal standards [and/or] meeting runway clear zone requirements of the federal government."^ See Loschi v. Massachusetts Port Authority, 354 Mass. 53 (1968); City of Boston v. Massachusetts Port Authority, 356 Mass. 741 (1970) (rescript). The present situation is that both the Massachusetts Aeronautics Commission and the Massachusetts Port Authority are authorized to es- tablish and maintain clear zones for aircraft landings and takeoffs at Logan Airport. The issue is whether the later enactment, St. 1956, c. 465, has repealed St. 1951, c. 799 by implication. "Ahhough the principle is one which the court, in defer- ence to the Legislature, does not regard with favor and ap- plies with caution, it has its proper place injudicial construc- tion of legislative enactments. It derives from the basic con- cept that it is the duty of the court to ascertain the legislative '"A clear zone is an area at the end ofa runway from which buildings may he excluded or within which their height may be limited in order to permit safe landings and takeoffs." Mayer v. Boston Meliopolitaii Airport. Inc.. 355 Mass. 344, 347 n. 4 (1969). =The Federal Aviation Administration is authorized, under 49 U.S.C. § 1501. to promulgate rules and regulations con- cerning structures which are considered to be hazards to air commerce. The rules and regulations which have been enacted. 14 C.F.R.. §§ 77.1-77.75. provide a procedure whereby the Federal Aviation Administration issues an advis- ory opinion as to whether a particular structure, such as a vessel which traverses a waterway (14 C.F.R. § 77.23(b)). constitutes an airport hazard. Illinoi.s Citizens Com. for BroaJiiislinn v. h'.C.C. 467 F.2d 1397. 1401 (7th Cir. 1972). P.D. 12 47 intent and to effectuate it. The test of the applicabihty of the principle of implied repeal is whether the prior statute is so repugnant to and inconsistent with the later enactment cover- ing the subject matter that both cannot stand." Dohcrty v. Commissioner of Administration, 349 Mass. 687, 690 (1965). There are numerous indications that the legislative intent of St. 1956, c. 465 was to repeal St. 1951. c. 799. The provisions of St. 1956, c. 465 are to be liberally construed to effectuate the purposes of the Act. St. 1956, c. 465, § 27; Massachusetts Port Authority v. Clerk of the East Boston District Court, 350 Mass. 195, 202 (1966). Section 2 provides that the Authority is not "subject to the supervision or regulation ... of any . . . commission . . . of the commonwealth except to the extent and in the manner provided in this act." In this regard there is no provision for regulation of airport hazards by the Aeronautics Commission. The absence of such regulatory authority is in line with the general legislative concern that, in order to meet business competition from other airports, the Authority was to function as a business without "inflexible and rigid" government control. Report of the Special Commission on the Massachusetts Port Authority, 1956 House Doc. No. 2575, p. 10; see City of Boston v. Massachusetts Port Authority, Mass. Adv. Sh. (1974) 187. Furthermore, § 29 provides: "All other general or special laws, or parts thereof, inconsistent herewith are hereby declared to be inapplica- ble to the provisions of this act . . ." In this legislative context, it is manifest that St. 1951, c. 799. is so in- consistent with St. 1956, c. 465 that both cannot stand and that the later enactment must apply. A sharing of joint responsibility with respect to the establishment of clear zones would diffuse rather than clarify this important responsibility. In fact, St. 1951, c. 799 was enacted subse- quently to the issuance of an opinion by one of my predecessors to the effect that the regulation of airport hazards at Logan Airport was the joint responsibility of the Aeronautics Commission and the Airport Management Board. 1949 Op. Atty. Gen. 33 (October 8, 1948). The legislative response indicated that only one entity should be directly re- sponsible for such matters. By enactment of St. 1956, c. 465, the Legis- lature has squarely placed that authority and responsibility in the Mas- sachusetts Port Authority. In conclusion, it is my opinion that St. 1951, c. 799 has been repealed, thus making any substantive determination as to the interpretation of any particular provision unnecessary. Very truly yours, ROBERT H. QUINN Attorney General 48 P.D. 12