AIRPORT NOISE LAW
ISSUES

Local Airports — Who Owns the Airport?
Who Regulates Airport and Flight Noise?
Noise Disclosure in Land Sales
Land Use Planning and Regulation
Litigation

Updated August 5, 2016





Local Airports — Who Owns the Airport?

Topic in development, with news on controversy over Santa Monica (California) Airport. (Jan. 25, 2015)

Who Regulates Airport and Flight Noise?

Ability of Local Jurisdictions to Regulate Airport Noise — Cities and counties may not use their general police powers to regulate flight noise at airports because such regulation is preempted by federal regulation of flight. However, the zoning powers of local jurisdictions are not affected by federal preemption, so that cities and counties have the power to decide where an airport is located and (to a certain extent) the types of activities that will be supported at the airport (see below, "Federal Preemption of Local Actions Related to Airport Noise"). They also can limit what is built near an airport and have permitting control over the complex infrastructure that supports an airport, including roads, sewer, power, public transport, etc. (see below, "Who Controls Development in and Around an Airport?"). The real issues over noise regulation, of course, arise from growth of existing public airports. An airport's ability to regulate or abate aircraft noise is limited significantly by federal statutes, FAA regulations, and contracts with FAA (if the airport has been given funds from the Airport Improvement Program).

Federal Preemption of State and Local Law Concerning Aviation Noise — A brief discussion of preemption and an index of cases addressing the question of preemption of (1) state or local regulation of airport noise and (2) state-law causes of action based on airport noise, e.g, injunctive relief, inverse condemnation, or compensatory damages. The entire body of federal aviation law is vast and covers a variety of concerns; preemption in one area does not automatically translate into preemption in another.


Noise Disclosure in Land Sales

Real Estate Transfer Disclosures in California — A brief overview of California's requirements for disclosure to prospective buyers with special attention to recent requirements for disclosing airport noise.

Noise Disclosure System Implementation Study — This preliminary study was prepared in 2004 for the FAA as required by the Aviation Reauthorization Act of 2003. It describes in general the issues surrounding writing a federal rule that would mandate disclosure of airport noise when land is sold. No further study was done, and aparently the idea has not been pursued by the FAA. (The link is to a 346 kB MS Word file - my apologies!)


Land Use Planning and Regulation

Who Controls Development in and Around an Airport? — Issues can arise when the FAA asserts authority over development of airport facilities. Owners have authority to plan for airport development but the FAA becomes involved in several ways, including approval of the "airport layout plan" (to ensure flight safety) and its control of federal funds for construction of facilities. In addition, disputes over airport planning authority often occur when an airport is owned by one jurisidiction but located in another (as when City A owns an airport located in City B). The control of airport development has significant consequences for how well aircraft noise can be mitigated.

Taking of Property: Avigation Easements and Zoning Regulations — Primarily a general discussion of the purpose and limits of avigation easements. (See also "Who Controls Development in and Around an Airport?" above, as well as "Inverse Condemnation Actions" below.) Includes lists of federal and state cases.

Can Avigation Easements by Acquired by Prescription? — When sued for nuisance by neighboring landowners, airports routinely assert that they have a prescriptive avigation easement over the plaintiff's land and therefore are not liable for any nuisance due to aircraft noise, fumes, or vibration. In theory a prescriptive avigation easement is acquired by simply flying over the property for a number of years (the number set by state law to perfect a claim for adverse possession).


Litigation

Airport and Pilot Liability for Nuisance — Both airport owners and pilots (or aircraft owners) are liable for the adverse effects of flight (noise, fumes, vibration) on property. This potential liability is what drives noise abatement policies and programs at most airports.

Aircraft Noise Damages — Although the liability of airports and pilots for aircraft noise is clear in theory, claims for damages, like all litigation, are constrained by a variety of procedural issues, notably the statute of limitations and proof (measurement) of damages. Complaints for damages are often filed with an alternative action in inverse condemnation (a takings claim), and the two theories are treated by some courts as interchangeable.

Inverse Condemnation Actions (Takings Claims) — Airports rarely take the trouble to initiate a condemnation proceeding to acquire an avigation easement. When no avigation easement exists and air traffic produces adverse affects on neighboring property, the property owner can force the governmental owner of the airport or the governmental entity with zoning power over the property into a condemnation proceeding by filing an action in inverse condemnation. The purpose of the proceeding is to find that a de facto avigation easement exists, require the parties to execute a written agreement on an easement, and fix the amount of payment to the property owner for the easement (this amounts to the same thing as monetary damages for nuisance).

Nuisance Actions in Small Claims Court — In California individual claims in small claims court can be consolidated into a "quasi-class action" (without the formalities of class action suits). This approach is useful, as in airport noise nuisance claims, where proof of case for an individual alone would be burdensome (and damages for the individual are capped at a small amount).

Challenges to Environmental Analysis — Opponents of airport expansion often file lawsuits claiming that analyses of noise do not satisfy federal or state law. The National Environmental Policy Act (NEPA) governs analyses for federal projects. Virtually every airport development project is a federal project because FAA approval is involved.

Disclosure of Records — Two main issues arise. Airports and the FAA often resist disclosing records of airport operations that shed light on sources of noise or specific areas impacted. The airport may refer a citizen to the FAA, which may deny that it is responsible for the record requested -- or vice versa. Records disclosure is governed by the Freedom of Information Act (for FAA records) or state statutes on public records. A second issue is disclosure of the identity of individuals who complain to airports about noise. Public identification of complainants raises thorny issues of privacy versus the public's right to know and implicates the Petition Clause of the First Amendment.