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. (See Federal Preemption of Actions Related to Airport Noise). 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. 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 Land Use Regulation Affecting Aviation). 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 and FAA regulations.

Federal Preemption of Actions Related to Airport 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.

Land Use Planning and Regulation

Who Controls Land Use Planning in and Around Airports? — 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 two ways: it must approve the "airport layout plan" (to ensure flight safety) and it may be called on to provide funding for construction of facilities. In addition, disputes over airport planning authority often occur when an airport is owned by one jurisidiction but is located in another (as when City A owns an airport located in City B).

Avigation Easements: A Taking of Property —

Can Avigation Easements by Acquired by Prescription? — Airports rarely take the trouble to acquire nuisance avigation easements by initiating condemnation proceedings. These easements are sometimes imposed on new developments near an airport, but only if the airport owner (a city or county) also has jurisdiction over the land surrounding the airport. 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). (See also "Avigation Easements" in the Index to Website)

Litigation

Liability for Aircraft Noise Damages — Liability for aircraft noise is clear in theory but, like all litigation, is 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.

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). See City and County of San Francisco v. Small Claims Div., Municipal Court of San Mateo Co. (Calif. Ct. App. 1st District, 1983), holding that small claims court can hear "complex cases".

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.