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Who Controls Development in and Around an Airport? |
Who Controls Development in and Around an Airport?Howard BeckmanAttorney at Law All rights to publication are reserved by the author. Republication of all or any portion of the text, other than "fair use," requires express permission from the author. |
(Revised April 9, 2009 — a work in progress)
Airport owners have primary authority to plan for airport development in most cases. The role of state officials varies among the states, depending on the extent to which a state desires to control airport development. The FAA becomes involved in several critical ways: it must approve the "airport layout plan" (to ensure flight safety), it may be called on to provide funding for construction of facilities, and it sets safety-related design standards for airports.
In addition, issues 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).
"The legal framework with respect to noise may be summarized as follows:
2.Other powers and authorities to control airport noise rest with the airport proprietor — including the power to select an airport site, acquire land, assure compatible land use, and control airport design, scheduling and operations — subject only to Constitutional prohibitions against creation of an undue burden on interstate and foreign commerce, unjust discrimination, and interference with exclusive federal regulatory responsibilities over safety and airspace management. [Emphasis added.]
3. State and local governments may protect their citizens through land use controls and other police power measures not affecting aircraft operations. In addition, to the extent they are airport proprietors, they have the powers described in paragraph 2."
Airport Master Plan (Public)
"An airport master plan is a comprehensive study of an airport and usually describes the short-, medium-, and long-term development plans to meet future aviation demand. The category of study that includes master plans and master plan updates can therefore be thought of as a continuum that varies by level of detail and associated effort." (FAA Advisory Circular 150/5070-6B, Airport Master Plans, page 1)
The preparation of an airport master plan or a plan update are public processes. The FAA strongly encourages airports to involve local communities in the planning process (see FAA Advisory Circular 150/5070-6B, Chapter 4: Public Involvement Program; FAA Advisory Circular 150/5050-4, Citizen Participation in Airport Planning, 1975). The function of an airport master plan, according to the FAA, is as follows (FAA Advisory circular 150/5070-6B, page 1):
"a. Airport master plans are prepared to support the modernization or expansion of existing airports or the creation of a new airport. The master plan is the sponsor’s strategy for the development of the airport.
"b. The goal of a master plan is to provide the framework needed to guide future airport development that will cost-effectively satisfy aviation demand, while considering potential environmental and socioeconomic impacts. The FAA strongly encourages that planners consider the possible environmental and socioeconomic costs associated with alternative development concepts, and the possible means of avoiding, minimizing, or mitigating impacts to sensitive resources at the appropriate level of detail for facilities planning.
"c. Each master plan should meet the following objectives:
"2) Justify the proposed development through the technical, economic, and environmental investigation of concepts and alternatives.
"3) Provide an effective graphic presentation of the development of the airport and anticipated land uses in the vicinity of the airport.
"4) Establish a realistic schedule for the implementation of the development proposed in the plan, particularly the short-term capital improvement program.
"5) Propose an achievable financial plan to support the implementation schedule.
"6) Provide sufficient project definition and detail for subsequent environmental evaluations that may be required before the project is approved.
"7) Present a plan that adequately addresses the issues and satisfies local, state, and Federal regulations.
"8) Document policies and future aeronautical demand to support municipal or local deliberations on spending, debt, land use controls, and other policies necessary to preserve the integrity of the airport and its surroundings.
"9) Set the stage and establish the framework for a continuing planning process. Such a process should monitor key conditions and permit changes in plan recommendations as required."
See FAA Advisory Circular 150/5070-6B, Airport Master Plans, May 2007 (available on the FAA website)
Airport Layout Plan (Nonpublic)
The airport layout plan (ALP) is a drawing depicting existing airport facilities and proposed developments as determined from the planners’ review of the aviation activity forecasts, facility requirements, and alternatives analysis. The FAA expects it to include required facility identifications, description labels, imaginary surfaces, runway protection zones, runway safety areas, and basic airport and runway data tables.
Unlike the public process attending preparation of an airport master plan, the ALP is typically the product of agreements between the FAA, the airport sponsor, and the state, with no public notice or hearings.
Federal law requires a current ALP approved by both the sponsor and FAA prior to the approval of an airport development project (USC 47107(a)). The airport sponsor must maintain an ALP that ensures the safety, utility, and efficiency of the airport (USC 47107(a)(16)). One of the standard assurances an airport sponsor gives when it receives an Airport Improvement Program grant is that the sponsor will keep the ALP up to date at all times (assurance #29). An ALP remains current for five years, and sometimes longer, unless major changes at the airport are made or planned (FAA Order 5100.38).
The FAA has defined five primary functions of the ALP (FAA AC 150/5070-6B):
"1) An approved plan is necessary for the airport to receive financial assistance under the terms of the Airport and Airway Improvement Act of 1982 [creating the Airport Improvement Program, or AIP], as amended, and to be able to receive specific Passenger Facility Charge funding. An airport must keep its ALP current and follow that plan, since those are grant assurance requirements of the AIP and previous airport development programs, including the 1970 Airport Development Aid Program (ADAP) and Federal Aid Airports Program (FAAP) of 1946, as amended. While ALPs are not required for airports other than those developed with assistance under the aforementioned Federal programs, the same guidance can be applied to all airports.
"2) An ALP creates a blueprint for airport development by depicting proposed facility improvements. The ALP provides a guideline by which the airport sponsor can ensure that development maintains airport design standards and safety requirements, and is consistent with airport and community land use plans.
"3) The ALP is a public document that serves as a record of aeronautical requirements, both present and future, and as a reference for community deliberations on land use proposals and budget resource planning.
"4) The approved ALP enables the airport sponsor and the FAA to plan for facility improvements at the airport. It also allows the FAA to anticipate budgetary and procedural needs. The approved ALP will also allow the FAA to protect the airspace required for facility or approach procedure improvements.
"5) The ALP can be a working tool for the airport sponsor, including its development and maintenance staff."
FAA review and coordination of preparation of the ALP is outlined in FAA Order 5100.38, Airport Improvement Program Handbook.
See FAA Advisory Circular 150/5070-6B, Airport Master Plans, May 2007:
Appendix F: Airport Layout Plan Drawing Set — An FAA checklist, the primary guideline for the contents of the ALP. Checklists from FAA Regional and District Offices and state aviation offices may be required to supplement the FAA checklist.
Airport Runway Safety Zones [In progress]
Airport Design Standards — Creeping Growth [In progress]
Airport Reference Code
Perhaps the most important standard governing airport design is the airport reference code (ARC). ARC is a coding system used to relate airport design criteria to the operational and physical characteristics of the airplanes intended to operate at the airport.
ARC has two components relating to the "airport design aircraft." The first component, represented by a letter (A - E), is aircraft approach speed (operational characteristic). The second component, represented by a Roman numeral (I - VI), is airplane design (physical characteristics) that takes into account airplane wingspan or tail height, whichever is the most restrictive.
Airport design first requires selecting the ARC(s), then the lowest designated or planned approach visibility minimums for each runway, and then applying the airport design criteria associated with the ARC and the approach visibility minimums.
An upgrade in the ARC for an airport means that the airport's design (principally the runway and the runway safety zone) will be enhanced to accomodate larger and faster aircraft. Generally, runways standards are related to aircraft approach speed, airplane wingspan, and designated or planned approach visibility minimums. Taxiway and taxilane standards are related to airplane design.
An upgrade in the first component of the ARC may result in an increase in airport design standards, while an upgrade in the second component generally will result in a major increase in airport design standards.
See FAA Advisory Circular 150/5300-13, Airport Design (Sept. 1989)
Surrounding Land Use Compatibility [In progress]
See FAA Advisory Circular 150/5020-1, Noise Control and Compatibility Planning for Airports (Aug. 1983)
"Law Governing Airports as a Land Use in New Jersey," a chapter in Report of the New Jersey General Aviation Study Commission (1998).
"Zoning Regulations as Affecting Airports and Airport Sites," L.S. Tellier, 161 A.L.R. 1232
FEDERAL
City of Blue Ash v. McLucas (1979) — City, site of an airport owned by Cincinnati, sought a court order requiring the FAA to honor an agreement between the two cities that jet aircraft would not be allowed to use a new runway at the airport. The agreement was cited in the environmental impact statement (EIS) for the runway. After construction of the runway the FAA issued a notice that the airport was closed to jet aircraft "not meeting FAR 36 noise limits." The City demanded that the notice be changed to an unqualified statement that the airport is closed to jet aircraft, and the FAA refused. The City's suit alleged that the FAA's action violated the National Environmental Policy Act (NEPA). The court held that, although the agreements were acknowledged in the EIS, there was no violation of NEPA. Moreover, the court said, because the FAA was not a party to the agreements between the cities, it was not a proper defendant. In order to enforce the agreement, plaintiff should take action against Cincinnati (in fact, such a suit was filed in state court). (6th Cir.; 596 F.2d 709)
City of Bridgeton v. Slater (2000) — One issue in this case was the requirement in the Airport and Airway Improvement Act requiring the FAA to determine that an airport project is consistent with the plans of local jurisdictions before it can award money for the project. In its long-running battle with St. Louis over expansion of St. Louis International Airport, Bridgeton adopted an ordinance effectively blocking expansion of the airport. The court concluded that the Act requires only "reasonable consistency" between a project and local zoning plans, not perfect consistency with the plans of every affected municipality. (8th Cir.; 212 F.3d 448)
City of Cleveland v.City of Brook Park (1995) — The City of Cleveland sued the City of Brook Park, pursuant to 28 U.S.C. § 2201. Cleveland sought a declaratory judgment that certain of Brook Park's ordinances offend both the supremacy clause and the commerce clause of the United States Constitution, and an injunction against the enforcement of these ordinances. Both parties moved for summary judgment. Brook Park's motion for summary judgment was granted and Cleveland's motion for summary judgment was denied. (N.D. Ohio; 893 F.Supp. 742)
City of New Orleans v. City of Kenner (1992) — New Orleans planned to expand its airport, part of which is situated within Kenner. The Kenner City Council adopted a resolution that precluded any expansion of the airport without the express approval of Kenner. New Orleans filed for declaratory relief. Held: New Orleans' contract with the FAA (consequent to receiving funds from the FAA) did not allow New Orleans to ignore or circumvent any local government with jurisdiction over the ground on which expansion would take place. (The issue here, whether an airport can expand without the approval of any local jurisdictions in which the airport is located, is at the heart of the dispute between the City of Burbank and the Burbank-Glendale-Pasadena Airport — see California appellate court cases.) (E.D. La., unpublished decision, Jan. 28, 1992; vacated Aug. 6, 1992 without statement, 971 F.2d 748)
Hoagland v. Town of Clear Lake, Indiana (2005) — "We see no conflict between a city's regulatory power over land use, and the federal regulation of airspace, and have found no case recognizing a conflict." "The siting of an airfield — so long as it does not interfere with existing traffic patterns, etc. — remains an issue for local control." (U.S. Ct. App. 7th Cir.; 415 F.3d 693)
CALIFORNIA
City of Burbank v. Burbank-Glendale-Pasadena Airport Authority II (May 5, 1999) — The trial court found that because the City had delegated its powers under Public Utilities Code section 21661.6 to the Authority, the City was without power to enforce the statute as against the Authority. The appellate court reversed the judgment. (Ct. App. 2nd Dist.; 72 Cal.App.4th 366, 85 Cal.Rptr.2d 28)
Burbank-Glendale-Pasadena Airport Authority v. City of Burbank (May 5, 1999) — The trial court granted a petition for writ of mandate, based solely upon a conclusion of law that was found erroneous in a companion case. The appellate court reversed the judgment and rejected respondent's contention that there are alternate grounds upon which it may be affirmed. (Ct. App. 2nd Dist.; unpublished opinion)
Skyranch Pilots Ass'n v. County of Sacramento (July 2, 2008) — County's decision to deny renewal of a conditonal use permit for a privately owned, public-use airport was not preempted by or contrary to the State Aeronautics Act. Nothing in the Act protected an airport from closure by a local land-use zoning decision. (Ct. App. 3d Dist.; 164 Cal.App.4th 671, 79 Cal.Rptr.3d 539)
OTHER STATES
City of Bridgeton v. City of St. Louis, Mo. Ct. App., 2000 — Under the Missouri version of the Uniform Aeronautics Act, St. Louis is authorized to condemn land outside its boundaries for airport development, but the Act also states that no city can establish an airport in violation of restrictions adopted by another city or county. In its long-running battle with St. Louis over expansion of St. Louis International Airport, Bridgeton enacted a zoning ordinance that effectively barred expansion of the airport. The court found that it was in the public interest to allow St. Louis to go forward with airport development, despite the local disagreement. (18 S.W.3d 107) (See related case, City of Bridgeton v. Slater, 8th Cir., April 7, 2000, 212 F.3d 448.)
Garden State Farms, Inc. v. Bay, N.J. Supreme Ct., 1978 — Plaintiff sought to construct a heliport near a heavily traveled thoroughfare opposite a residential neighborhood. An ordinance prohibiting heliports in the area in order to protect the "general quality of life" is not preempted by either federal aviation regulation or the state's Aviation Act. Nevertheless, the state's Commissioner of Transportation has statutory authority to determine where new airports will be located. The commissioner's failure to "weigh conscientiously local interests" or "consult local ordinances and authorities in making a licensing decision would constitute an abuse of discretion." (390 A.2d 1177)
Pennsylvania v. Rogers, Pa. Super. Ct., 1993 — Rogers erected a 95-foot sign at his Dairy Queen Restaurant; the sign penetrated the airspace comprising the approach zone to a nearby airport. Rogers was found guilty of violating a state statute requiring prior approval of such signs and compliance with FAA regulations. He appealed, challenging the validity of the statute. The court noted that the statute enforces provisions of the Federal Aviation Act. The Act requires that a person who proposes to construct a structure in close proximity to an airport notify the FAA so that the FAA can determine whether the proposed structure constitutes a hazard to aviation. However, this determination is not legally enforceable -- the FAA cannot prohibit or limit proposed construction it deems dangerous to aviation. Instead, such regulation has been left to the states. The court rejected the claim that the statute effected a taking of property for which compensation was due. (634 A.2d 245, 430 Pa.Super. 253)
Riggs v. Burson, Tenn., 1997 — A state statute prohibiting use of land for a heliport within nine miles of a national park is not preempted by the Federal Aviation Act. (941 S.W.2d 44)
Schmidt v. City of Kenosha, Wisc. Ct. App., 1997 — A statute grants municipalities extraterritorial zoning power to ensure the safety of aerial approaches to airports. Held: the statute is a valid exercise of state polic power that does not infringe on the voting rights of nonresidents. (214 Wis.2d 527, 571 N.W.2d 892)
Sharp v. Howard County Board of Appeals, Md. Ct. Spec. App., 1993 — A number of property owners operated a grass airstrip on a portion of their residential properties in a rural area. The county zoning board granted a special zoning exception to the owners of the airstrip, finding that the noise impacts of the airstrip were inherent in the operation of an airstrip anywhere in the area designated "rural district" and were not atypical because of the airstrip's specific location. Owners of nearby properties sued to have the special exception overturned as arbitrary and capricious. The court held that the zoning board did not abuse its discretion in granting the exception after finding that the airstrip would have some adverse impacts on nearby residents. The court deferred to the board's conclusion that the adverse impacts were not "atypical." (632 A.2d 248)
Shell Oil Co. v. Board of Adjustment of Hanover Tp., N.J., 1962 — A municipal airport located in the township was subject to the zoning power of the township except insofar as it was used for airport purposes. (38 N.J. 403, 185 A.2d 201) (See also Aviation Services v. Board of Adjustment of Hanover Tp.)
Washington County v. Stark Ore. App. Ct., 1972 — Licensing of airports by the state did not preempt county zoning control. (10 Or.App. 384, 499 P.2d 1337)