Legal Implications of Airport
Planning

Introduction
 Concerned with legal issues and implications involved with airport planning and land use planning
 Two main areas of concern for airport managers:
» Noise Mitigation/Noise Abatement
» Land use law

Introduction
 Noise is single biggest constraint to airport development and capacity enhancement facing airport managers today
 The one issue that residents will focus complaints

Why be concerned about aircraft and airport planning?
 There is ever expanding liability in not only money damages but injunctive relief
 Liability can result from adverse noise intrusion or from implementation of operational or facility changes
 Two-edged sword, affect on residents, and on airport users and tenants, and the federal government

What is the relationship between Noise and Land Use
Law?
 Noise mitigation-process of lowering noise intrusion
 Noise abatement- process of eliminating noise intrusion
 Two major mechanisms for noise abatement/mitigation
» Operational/facility changes
» Land use controls to ensure compatibility

What is the relationship between Noise and Land Use
Law?
 Land use controls authority rests with the local jurisdiction, usually not the airport
 Airport has all the liability, but no land use control jurisdiction

Sources of Law
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Federal Law: Originates in the Federal Government
State Law: Originates in the various State
Government
Constitutional Law: Derived from the Constitution
Case Law: A body of law formed by the aggregate of report cases on a particular subject
Common Law: Special or local rules or customs

Sources of Law
 Police Power: Power vested in legislature to make laws for the health, safety, and welfare of the people
» Only lies with the State
 Eminent Domain: The power to take private property for public use

Sources of Law
 Condemnation: The process of eminent domain, without owners consent, with just compensation
 Enabling Legislation: Legislation with grants certain power to subdivisions of a
State

Major Legal Issues Involved with Airport Planning
 Inverse Condemnation: Action to recover the value of property taken by government when no eminent domain has been completed
 Burden to Interstate Commerce: Action by local unit of government that places an unreasonable and unnecessary restriction on interstate commerce

Major Legal Issues Involved with Airport Planning
 Discrimination: Failure to treat all persons equally where no reasonable distinction can be found between those favored and those not favored
 Federal Preemption: Federal government has exclusive powers over certain matters such that state cannot interfer

Historical Perspective in
Airport/Land Use Law
 United States v. Causby: United
States government held liable for a taking due to military flights over private land. Compensation required. Set precedent, very important

Historical Perspective in
Airport/Land Use Law
 Griggs v. Allegheny County : Inverse condemnation case, airport operator liable for overflights of private land which deprived owner of use of property. Airport proprietor was liable, not airlines or Federal Government.
Another precedent setting case.

Historical Perspective in
Airport/Land Use Law
 City of Burbank v. Lockheed Air
Terminal: Privately owned airport, city adopted curfew on night operations, based upon police power. Court ruled curfew invalid as an intrusion into area federal preempted. Decision applies only to use of police power when city is not owner of airport.

Historical Perspective in
Airport/Land Use Law
 National Aviation v. City of Hayward
City : City owned airport, adopted curfew. Court determined that the airport owner or operator could pass reasonable regulations to control noise.

Inverse Condemnation Issue
 Major airport/noise related land use issue. Plaintiff claims that aircraft noise is impacting his property to the degree that it is no longer usable, usually as residential property, and that the airport has “taken” his property without just compensation.

Inverse Condemnation Issue
 City of Los Angeles v. Japan Airlines : The
City of Los Angeles, as proprietor of the airport, attempted to obtain indemnification of inverse condemnation through contracts with airlines. The court held that state law allowed the city, not the airlines, to acquire easements if such were necessary, and found no contractual liability and no such indemnification. Liability rests with the proprietor of the airport.

Inverse Condemnation Issue
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Aaron v. City of Los Angeles : The City argued that the federal government should be liable for inverse condemnation because it regulates flights in navigable airspace, and airplanes were the cause of noise. Court held city liable for not acquiring sufficient land and airspace necessary for approaches and departures.
Case law is well settled that the airport proprietor is liable for aircraft noise intrusion, not the airlines or the federal government.

Burden to Interstate
Commerce
 Restrictions placed on aircraft operations, in the form of curfews, access plans, maximum noise levels of aircraft, ect. cannot place an unreasonable burden on interstate commerce.

Burden to Interstate
Commerce
 Westchester County v. United States of America :
County imposed night curfews on airport, as proprietor, for all non-emergency aircraft, applied to all aircraft regardless of noise emission level or degree of noise produced. The court found that the curfew on all night operations is an unreasonable, arbitrary, discriminatory and overbroad exercise of power by the county. It has an adverse impact on the flow of interstate air commerce in that it resulted in delays at other airports in the system, including air traffic in the New York City area. Curfew represented an unlawful exercise of local police power by the county. (1983)

Burden to Interstate
Commerce
 Santa Monica Airport Assoc... v. City of Santa
Monica City : City imposed a curfew, a ban on touch and go operations on weekdays, prohibited helicopter landings, a single-event noise limit and a categorical ban on all jet aircraft. The court upheld all of the provisions except the ban on jet aircraft, which was interpreted to be unreasonable discrimination and violative of the equal protection and commerce clauses of the Constitution.

Discrimination Issue
 Restrictions must be reasonable and not discriminate against a certain class of aircraft
 Santa Monica Airport Assoc.. v. City of
Santa Monica : Ban on all jet activity

Federal Preemption Issues
 Management of the navigational airspace is preempted by the Federal
Government, along with the control of noise at the source, i.e., the engine.

Federal Preemption Issues
 Arrow Air, Inc.., v. The Port Authority of New York and
New Jersey, Defendant implemented noise restriction on aircraft that were more stringent than federal government FAR Part 36 requirements.
Arrow filed for injunction, based in part, on the agreement that the rule was preempted by federal exemption. The court stated the Port had
“responsibility to establish fair, even-handed and nondiscriminatory regulations designed to abate the effect of airplane noise on surrounding communities.”
The court upheld the ruling .

Environmental Requirements
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National Environmental Policy Act (NEPA)
Council on Environmental Quality (CEQ)
Documents of concern to airport managers:
» Environmental Assessment (EA)
» Environmental Impact Statement (EIS)
» Finding of No Significant Impact (FONSI)
Federal Aviation Administrative Orders:
» Order 1050.1D Policies and Procedures for
Considering Environmental Impact
» Order 5050.4A The Airport Environmental
Handbook

Environmental Requirements
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Order 5050.4A (Airport Environmental Handbook) lists those projects which normally would require an
EIS. These include: First time airport layout plan approval or airport location approval for an air carrier airport located in a standard metropolitan statistical area, a new runway capable of handling air carrier aircraft at the air carrier airport in a standard metropolitan statistical area.
All other actions, if not categorically excluded, will require a FONSI

Environmental Requirements
 Both an EIS and a FONSI require the preparation of a EA prior to the determination of either an EIS or a
FONSI
 The federal agency is responsible for the preparation of either the EIS or the
FONSI, but the sponsor is responsible for the preparation of the EA

Public Hearing Requirements
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Order 5050.4A states “If a new airport location, a new runway or major runway extension is involved, the sponsor must afford the opportunity for public hearings...” No actual requirement to hold a public if none is requested, but in the projects that require an EIS and if the project is controversial, it is recommended that a hearing be held.

Public Hearing Requirements
 Sequence of events for a public hearing
» Notice of opportunity for a public hearing is published in newspaper of general circulation. The EA is on file and open for public review for thirty days subsequent to the notice.
» A written request for public hearing must be received within thirty days of publication of the notice of opportunity.

Public Hearing Requirements
 If no request for a hearing is received, then none is required and the EA is forwarded to the FAA.
 The Airport Board or other agency may still direct a public hearing.

Public Hearing Requirements
 If request is received, then a notice of public hearing is published, with the date of the hearing at least fifteen days after the notice of hearing is published.
 In no event should a hearing take place any sooner than thirty days after either an opportunity for hearing or notice of hearing is published.

Public Hearing Requirements
 Major threshold question concerning the preparation of an EIS or a fonsi is the amount of controversy!
 A controversial project can always be processed as an EIS by the FAA, which extends the timeframe for approval significantly.
 An EIS can take from one to three years for approval but a FONSI can be approved in three to six months.

Height Hazard Zoning
 The ability to control the height of objects within the airports environs is a local matter, and within the jurisdiction of the local unit of government. The
FAA has no land use control authority and cannot control; the height of objects.

Height Hazard Zoning
 The FAA requires that the local sponsor utilize FAR Part 77 criteria to determine if an object is an obstruction or a hazard to navigation, and the FAA utilize Part
77 criteria when they review requests for construction to determine obstructions, but the FAA cannot by itself impose land use controls.

Height Hazard Zoning
 Local land use control is dependent upon state enabling legislation. The enabling legislation varies widely from state to state.
 One good option is to discuss insurance options with the party. Insurance companies may not provide adequate coverage without local or FAA approval for the obstacle.

Sponsor Assurances
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When an airport accepts grant funds from the FAA, the sponsor in turn, certifies to the FAA it will do certain things and follow certain requirements. This is referred to as Grant Assurances. Many are administrative in nature, but some are planning oriented.
For a public sponsor, the assurances are in effect for the life of the project, not to exceed twenty years, from the date of acceptance of the grant, except for land acquisition and discrimination issues, which are in perpetuity. (forever and ever)

Sponsor Assurances
 One of the most important assurance is that the sponsor will adhere to all applicable federal laws, regulations, executive orders, policies, guidelines and requirements. The sponsor will also assure the FAA that it will take appropriate action to restrict the use of land adjacent to an airport to uses which are compatible with normal airport operations.

FAR Part 36
 Intent of FAR Part 36 is to govern the noise that aircraft emit, and applies to the engine and airframe manufacturers. This area has been preempted by the federal government.
It is an attempt to regulate noise at the source, as opposed to regulating noise affects associated with aircraft operations.
Not intended to be used for land use planning purposes.

FAR Part 36
 FAR Part 36 applies to all aircraft, including helicopters. Generally, Part 36 categorizes aircraft by stages (stage I,II,III), based upon noise levels measured at precise locations, and the number of seats on a particular aircraft, the number of engines and the date of manufacuter. Not all Stage III aircraft emit the same levels of noise, but are within a range of noise levels .

FAR Part 36
 Stage I,II,III aircraft
» Stage I aircraft are those aircraft which do not meet Stage II requirements
– Generally, all are older aircraft and there are virtually none flying in the U.S.
» Stage II aircraft are the newer aircraft which meet more stringent noise levels.
– examples are B-727,B-737-200 and other DC-9 aircraft

FAR Part 36
 Stage III aircraft are the newest aircraft being manufactured and meet the most stringent noise levels.
» examples include B-757,B-737-300,DC-9-
80
 There has been some talk of developing a Stage III.5 or Stage IV criteria for aircraft.

Summary