In Burbank , the Supreme Court determined that because of the pervasive regulation of aircraft noise, the FAA, in conjunction with the Environmental Protection Agency has full control over aircraft noise. Thus, the City of Burbank could not use municipal curfews to impose noise regulations on aircraft operations. In contrast, the Sixth Circuit observed that the designation of plane landing sites was not pervasively regulated by federal law, but instead was a matter left primarily to local control. Likewise, we agree with the Board that in this case the location of the skydiving business is a matter properly controlled by the local zoning ordinance as federal regulations do not regulate where skydiving is performed but instead regulate how it is performed. Next, we will address whether skydiving was a use at the airport prior to the adoption of the zoning ordinance and thus constitutes a non-conforming use.
Appellants appear to make two arguments as to non-conforming use.
Appellants do not have a vested right to maintain the skydiving business, however, because even though it existed in 1969, it was later abandoned. A lawful nonconforming use is a vested property right which cannot be abrogated or destroyed unless it is a nuisance, or it is abandoned by the owner or it is extinguished by eminent domain. Here, the testimony shows that the Gebharts abandoned the skydiving use, which was non-conforming, when they ceased its operation in the early 1970's. Secondly, although permitted by special exception, Appellants maintain that the airport is a non-conforming use because it was in existence before the adoption of the Ordinance. We disagree with Appellants that the airport is a non-conforming use as Section 3.1.4.8 of the Ordinance permits such a use by special exception.