Defendants move to dismiss this action for lack of subject matter jurisdiction. Plaintiffs argue that jurisdiction is conferred by virtue of 28 U.S.C. 1331, 1337. Plaintiffs' contention with respect to section 1331 would appear to be correct except that plaintiffs have not alleged that the matter in controversy exceeds the sum or value of $ 10,000. [FN20] However, in any case, this court is of the opinion that jurisdiction is proper under 28 U.S.C. 1337. See Lockheed Air Terminal Inc. v. City of Burbank, supra, 317 F. Supp. at 194; Aircraft Owners and Pilots Ass'n v. Port Authority of New York, 305 F. Supp. 93, 103 (E.D. N.Y. 1969). Defendant's argument that the constitutional claims stated by plaintiffs fail at the outset and should be dismissed is best brought before the court by way of motion for summary judgment.
Plaintiffs, however, have amended their complaint to include a claim for inverse condemnation against the city. Plaintiffs' theory is that the enactment of the Hayward Ordinance deprived plaintiffs of access to the runways at the Hayward Air Terminal during certain nighttime hours, thereby substantially decreasing the value of certain long term aviation site leases which plaintiffs had entered into with the city and pursuant to which plaintiffs had constructed certain fixed base facilities.
As we indicated at the oral argument of these motions, this court has serious reservations regarding the validity of this claim. The Hayward ordinance does not regulate any property of the plaintiffs; it only restricts the use of the airport's own runways from noisy aircraft during certain nighttime hours. Moreover, plaintiffs have no absolute right to unrestricted use of the airport's runways at all hours of the day by any type or class of aircraft. Thus, it is highly questionable whether plaintiffs have any right to be compensated for the alleged decrease in value to their leased property when such decrease was caused solely by the defendant's denial of unrestricted access to its airport's runways. Cf. Colberg v. State of California, 67 Cal. 2d 408, 62 Cal. Rptr. 401, 432 P.2d 3 (1967). Finally, since the ordinance only prevents plaintiffs from using the airport's runways between the hours of 11:00 p.m. and 7:00 a.m., it is clear that plaintiffs' property has not been so substantially deprived of value as to have been unlawfully "taken" within the meaning of the Fourteenth Amendment of the United States Constitution and Article I, section 19 of the California Constitution. See e.g., South Terminal Corp. v. Environmental Protection Agency, 504 F.2d 646, 678 (1st Cir. 1974); HFH Ltd. v. Superior Court, 15 Cal. 3d 508, 125 Cal. Rptr. 365, 542 P.2d 237 (1975).
Accordingly, defendant's motion to dismiss plaintiffs' inverse condemnation claim is hereby granted. [FN21]
To recapitulate, plaintiffs' motion for a preliminary injunction is denied. Defendant's motion to dismiss for lack of subject matter jurisdiction is denied. Defendant's motion to dismiss plaintiffs' claims for damages under 42 U.S.C. 1983 is granted as is defendant's motion to dismiss plaintiffs' claim for inverse condemnation.
In addition, the parties are directed to appear before this court on Monday, July 19, 1976, at 3:30 p.m., for a status conference. At that time, we would like to hear from the parties regarding the best means of proceeding with this litigation in light of the views expressed by the court in this opinion.
IT IS SO ORDERED.
Dated: July 13, 1976