Who Controls Development in and Around an Airport?
Who Controls Development in and Around an Airport?Howard Beckman
Attorney 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 Augustd 2, 2012)
|II.||Local versus Federal Authority|
|III.||Controlling Development within the Airport
|IV.||Controlling Land Use Around an Airport|
Issues of who controls the airport owner, the state, or the FAA inevitably arise during planning of airport facilities, whether for a new airport or expansion of an existing airport. Naturally, development of an airport creates new or different aircraft noise problems for surrounding residents.
The overall regulatory scheme is well described in the FAA's Aviation Noise Abatement Policy (1976):
"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.
"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 owners have primary authority to plan for airport development. They have unquestioned authority over planning for land around an airport, but are subject to FAA's safety standards and guidelines for development within the airport.
For new (proposed) airports the FAA will conduct an aeronautical study, considering such matters as the effect the proposed airfield would have on existing local air traffic patterns and airspace structure. Such studies do not consider land use issues such as impacts on the area surrounding the proposed airport. If the FAA has objections to the proposed site, it will describe conditions that must be met to overcome the objections. However, the FAA's aeronautical study and resulting "letter of determination" (its opinion about the proposed airfield) will not relieve the airport proponent of responsibility for compliance with local law, ordnance, or regulation or state or other federal regulation. (See 14 Code of Federal Regulations 157.7.)
For existing airports the FAA is involved in land-use planning and regulation in several critical ways: it must approve the "airport layout plan" (to ensure flight safety), it sets safety-related design standards for airports, and it may be called on by the airport owner to fund construction of facilities (through the Airport Improvement Program). When an airport receives AIP funds it must agree to several "grant assurances", and it is through these contractual assurances that the FAA exercises its most direct control over airport planning. Indeed, without these assurances the FAA's role in airport planning would be that of a technical advisor.
The FAA is also heavily involved in assisting states and local authorities with developing policies and programs that will ensure that land around an airport will be compatible with the airport. "Land-use compatibility" programs are specifically authorized by federal statutes and are supported almost entirely by FAA discretionary funds (the AIP funds). (See FAA's Compatible Land-use Planning Toolkit.)
The role of state officials varies among the states, depending on the extent to which a state desires to control airport development. All states have statutes requiring permits to operate an airport (see state aviation laws). Many state governments have agencies that specialize in aviation and airports. Such agencies are typically active in promoting "compatible" land uses around an airport, publishing guidelines that stop short of being enforceable regulations (see, for example, California's Airport Land Use Compatibility Planning Guidance).
Issues over airport planning authority often occur when an airport owned by one jurisidiction is located in another (as when City A owns an airport located in City B) or disproportionately affects life in a nearby community (e.g., by its noise impacts or added street traffic). Such issues have been the subject of several lawsuits (see selected cases below).
Local versus Federal Authority
Numerous court decisions have affirmed the authority of municipalities and states to control the siting and development of airports (see selected cases below). The FAA has repeatedly acknowledged this authority in its policy statements and regulations (e.g., in its 1976 Aviation Noise Abatement Policy quoted above).
The FAA's own regulations (published in the Code of Federal Regulations, title 14) also reiterate this position. For example, when it comes to siting a new airport, 14 C.F.R. 157.7 provides that the FAA will conduct an aeronautical study and issue a determination, considering matters such as the effect the proposed airfield would have on existing traffic patterns of neighboring airports and the effects on the existing airspace structure. But the "determination does not relieve the proponent of responsibility for compliance with any local law, ordinance or regulation, or state or other Federal regulation. Aeronautical studies and determinations will not consider environmental or land use compatibility impacts."
See in particular "Legal Research Digest 5: Responsibility for Implementation and Enforcement of Airport Land-use Zoning Restrictions," William Cheek (Transportation Research Board, Airport Cooperative Research Program, 2009), available on the Web here. This report emphasizes repeatedly that the FAA leaves questions of land use control to local authorities.
Controlling Development within the Airport
Developments within an airport -- extending the physical runway or its safety zone, building new hangars or enhancing aviation support facilities, adopting FAA airport design standards that intensify air traffic etc. -- are one of three major determinants of the frequency and level of airport-generated noise. (The other two are aircraft design, including engine noise-suppression technology, and the management of aircraft in flight, particularly the manner of take-off and landing.)
Residents near an airport who are active in fighting airport noise are understandably overwhelmed by the complexity of planning for development of the physical airport. Nevertheless, some understanding of key elements in the planning process is essential to having a voice in airport planning.
The two most important processes in planning the physical development of an airport are the airport master plan and the airport layout plan. These are quite distinct documents, as described below, and each is the product of a distinctly different process -- one is necessarily public and the other is usually pursued as a "technical, administrative" process.
While proposals to extend a runway easily get the public's attention, because of the intuitive connection between longer runways and bigger aircraft, changes to the runway safety zone can have much the same noise impacts as physically extending a runway. Yet runway safety zones rarely become a heated public issue because they are complex and technical in nature.
Airport Master Plan versus Airport Layout Plan Public versus Nonpublic Planning
Airport Master Plan (Public Planning)
"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, May 2007, 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."
Airport Layout Plan (Nonpublic Planning)
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):
"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 the preparation of ALPs is outlined in FAA Order 5100.38, Airport Improvement Program Handbook. See also the following parts of 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 Design Standards Creeping Growth [Topic in progress] The FAA's guidelines on airport design are published in FAA Advisory Circular 150/5300-13, Airport Design (Sept. 1989). FAA advisory circulars are advisory only and do not have the force of law, i.e., they are not enforceable rules that have been adopted under rulemaking procedures.
Two key elements of airport design are (1) airport reference codes, an FAA system of linking air traffic patterns to particular facility requirements, and (2) runway safety zones.
Airport Reference Codes
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.
Airport Runway Safety Zones [In preparation]
Controlling Land Use Around an Airport
Perhaps most controversial are efforts to expand land for airport use while minimizing the airport owner's liability for nuisance (aircraft noise and fumes).
Airport Improvement Program Handbook, FAA Order 5100.38, June 2005.
Airport Master Plans, FAA Advisory Circular 150/5070-6B, May 2007.
Noise Control and Compatibility Planning for Airports, FAA Advisory Circular 150/5020-1, August 1983.
"Dilemma of Airport Zoning -- The Constitutionality of Police Power Regulation v. the Necesssity of Eminent Domain Acquisition," J. Lesser, 1973 Planning, Zoning & Eminent Dom. Inst. (Southwest Legal Fdn.) 117- (1973).
"Land Use Compatibility and Airports: A Guide for Effective Land Use Planning" This guide was prepared by a task force convened by the FAA's Southern Region Airports Division Office. It does not constitute a regulation or represent official FAA policy. (PDF file, 141 pages)
"Law Governing Airports as a Land Use in New Jersey," a chapter in Report of the New Jersey General Aviation Study Commission (1998).
"Legal and Institutional Framework for an Airport Noise-compatibility Land Use Program." 10 U. Mich. J. Law Reform 447-475 (spring 1977).
"Legal Research Digest 5: Responsibility for Implementation and Enforcement of Airport Land-use Zoning Restrictions", William Cheek. Transportation Research Board (Airport Cooperative Research Program) (2009).
"Planning for Airports in Urban Environments -- A Survey of the Problem and Its Possible Solutions," M.L. Dworkin, 5 Transp. Law J. 183-214 (July 1973), 5 Urban Law 472-503 (summer 1973).
"Protecting Land Around Our Airports: Avoiding Regulatory Taking Claims by Comprehensive Planning and Zoning," Steven Magee, 62 J. Air Law Comm. 1:243-277 (1996).
"Zoning Control of Airport Expansion by Host Cities and the Battle over Dallas/Fort Worth International Airport," Troy J. Cole, 59 J. Air Law Comm. 193-237 (1993).
"Zoning Regulations as Affecting Airports and Airport Sites," L.S. Tellier, 161 American Law Reports 1232.
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. Ct. App.; 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. Ct. App.; 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)
Condor Corp. v. City of St. Paul (1990) City denied Condor a permit to use property for a heliport. Held: A city's regulatory power over land use does not conflict with the federal regulation of airspace and is not preempted by federal law. The court found no case recognizing a conflict. (8th Cir. Ct. App.; 912 F.2d 215)
Hoagland v. Town of Clear Lake, Indiana (2005) Held: "The siting of an airfield — so long as it does not interfere with existing traffic patterns, etc. — remains an issue for local control." (7th Cir. Ct. App.; 415 F.3d 693)
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 conditional 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)
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.)
Township of Readington v. Solberg Aviation Co., N.J. Super. Ct., App. Div., 2009 The Solberg family owned a large tract of land that included a small airport owned and operated by them. The Township sought to acquire, through condemnation, title to the portion of Solberg's property lying outside of the 102-acre airport facility. It also sought, through condemnation, development rights to the airport area. Solberg claimed the taking was pretextual in an attempt to limit the use of airport property and eventually drive the airport out of business, as the Township had for years opposed improvements or expansion of the airport. In this legally and factually complex case, the court ruled that the Township's power of eminent domain over the airport was constrained by state law designed to protect airports. (409 N.J. Super. 282)
Washington County v. Stark Ore. App. Ct., 1972 Licensing of airports by the state does not preempt county zoning control. (10 Or.App. 384, 499 P.2d 1337)