AIRPORT NOISE LAW


Colorado Residents Appeal Denial of Relief from Skydiving Noise


BOULDER, COLORADO
JULY 15, 2015 [updated Dec. 19, 2016]


[UPDATE Jan. 6, 2017: The appellate court decided in favor of the Mile-Hi Skydiving Center. The decision was announced Dec. 22, 2016. Although the plaintiffs lost their case for nuisance, the court ruled that federal aviation law did not preempt nuisance claims based on state law. See link to the opinion at the end of this article.]

Plaintiffs in a lawsuit seeking relief from the noise impacts of skydiving operations in Boulder have appealed a state trial court's ruling that their case did not meet the requirements of a nuisance under state law. The notice of appeal was filed July 9, 2015, in the Colorado Court of Appeal (case 2013CV31563). Oral arguments in the Court of Appeal were heard Dec. 13, 2016.

The lawsuit was filed by Citizens for Quiet Skies, a group of Boulder area residents, in the District Court for Boulder County in 2013 (case 2013CV31563), against the Mile-Hi Skydiving Center, which has provided skydiving services from the Vance-Brand Municipal Airport in Longmont since 1995.

Judge Judith LaBuda conducted a bench trial in April 2015 and filed her judgment and statement of decision on May 21. The lengthy statement of decision cites extensive evidence presented at trial and addresses a number of legal issues that are standard in noise nuisance cases. As such, it is an exceptional example of the challenges faced by plaintiffs in such cases.

For example, Judge LaBuda concluded that there was no evidence to support the claim that the value of plaintiffs' properties had declined as a result of noise from Mile-Hi's operations. Such evidence is crucial for a claim for monetary damages from alleged noise nuisance.

At the core of Judge LaBuda's decision is her conclusion that the noise from the skydiving operations did not rise to the level of a nuisance. "The Court finds the noise produced by Mile-Hi's operations is not offensive, annoying, or inconvenient to a degree significant enough that a normal person in the community would consider it unreasonable for those individuals who choose to reside in close proximity to an airport." (Emphasis added.)

After denying plaintiffs' nuisance claim, the judge then addressed the plaintiffs' claim that Mile-Hi was negligent in its operations. "The Court finds Mile-Hi owes a duty to the community at large, including the individual plaintiffs, to not operate in a careless or reckless manner. The Court finds no evidence to suggest Mile-Hi is operating aircraft in a careless or reckless manner and therefore only applies the federal regulations in assessing this matter." (Emphasis added.)

This rationale may be the most controversial aspect of the judge's statement inasmuch as her brief discussion of "federal regulations" omits any citation of the complex case history of the question of the preemption of state law by federal aviation law. Moreover, Judge LaBuda's exclusive focus on federal regulations led her to the broad conclusion that the FAA's adoption of the DNL standard (day-night sound level average) means that it is the "applicable sound metric for analyzing the impact of airplane noise on communities." It is unclear why Judge LaBuda engaged in this discussion after finding that the Mile-Hi noise "is not offensive, annoying, or inconvenient to a degree significant enough that a normal person in the community would consider it unreasonable." (The classic nuisance claim must show that the nuisance is significant enough to interfere with the peaceable enjoyment of one's property and that reasonable members of the community would find it so.)


Documents:

Trial, District Ct. Boulder County (case 2013CV31563, filed April 2015). The trial pleadings are posted in PDF format at the Citizens for Quiet Skies website.

Appeal, Colorado Ct. App. (case 2015 CA 1159, filed July 9, 2015). The following documents are posted in PDF format at the Citizens for Quiet Skies website:

Court of Appeal decision (Dec. 22, 2016)
Notice of appeal - Citizens for Quiet Skies (July 9, 2015)
Opening brief - Citizens for Quiet Skies (March 9, 2016)
Answer brief - Mile-Hi Skydiving Center (May 6, 2016)
Reply brief - Citizens for Quiet Skies (June 10, 2016)