Responsibility for Implementation and Enforcement of Airport Land-Use Zoning Restrictions (2009)

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3 RESPONSIBILITY FOR IMPLEMENTATION AND ENFORCEMENT OF AIRPORT LAND- USE ZONING RESTRICTIONS By William V. Cheek, Esq. William V. Cheek & Associates I. INTRODUCTION Federal government agencies,1 states, counties, cit- ies, port authorities, regional governmental authorities, and special taxing districts all, to some degree, share responsibility with respect to airport-related land. This digest seeks to respond to the need for a comprehensive legal resource of applicable statutory and case law af- fecting the creation and enforcement of airport use re- strictions. A survey (see Appendix A) was conducted among the following entities: 1. Cities, counties, state and federal agencies, and subagencies. 2. Agencies, organizations, and individuals: a. City/county administrators such as city manag- ers, county administrators, city/county attorneys, air- port managers, and city/county zoning and planning agencies. b. Federal Aviation Administration (FAA). c. National Association of State Aviation Officials (NASAO). d. Aircraft Owners and Pilots Association (AOPA). e. National Business Aircraft Association. f. Regional intergovernmental groups. 3. The survey was also sent to a selected series of representatives and regulators of 1) large “hub” airports and regulators; 2) medium “hub” airports and regula- tors; 3) small “hub” airports and regulators; and 4) commercial service airports generally serving general aviation (GA) airports. Certain city managers, county executives, lawyers, and risk managers were also sur- veyed. The findings of the surveys indicated that local au- thorities approach incompatible airport land uses in various ways: • Overlay or “conventional” zoning and control of planned unit developments (commercial or residential) with certain density or clear zone requirements at- tached. • Subdivision regulations requiring open space, re- strictions of development in stipulated zones, and other constraints. • Building code restrictions or conditions, insuring soundproofing. 1 The Federal Aviation Administration (FAA), Environ- mental Protection Agency, and the Department of Defense (DOD). • Avigation easements required from landowners granting overflight rights and releasing the local gov- ernment authorities from and against any nuisance, damage, or other claim arising from operation of the nearby airport, even if such avigation easements carry a price tag. • Real property notice requirements pursuant to state law that alert the buyer to the location of the air- port and possible nuisance and damage that might fol- low. • Airport runway and clear zone requirements over and above what any regulatory agency, such as FAA, might otherwise mandate. • Buy-out by the local government of real property in certain identified zones, either by agreement or by con- demnation under “police powers.” II. GOVERNMENTAL STRUCTURES AND AIRPORT- RELATED LAND USE Most airports are public nonprofits, run directly by government entities or government-created authorities known as airport or port authorities. Commercial airports are operated by one of six enti- ties: 1. City—33 percent are city-operated. Examples in- clude Atlanta, Georgia, and Austin, Texas. 2. County—15 percent are county-operated. Fort Lauderdale, Florida, and Las Vegas, Nevada, are ex- amples. 3. State—7 percent are state run. Honolulu, Hawaii, and Anchorage, Alaska, are examples. 4. Port authority—9 percent use a port authority. Examples include New York City, New York; Seattle, Washington; Portland, Oregon; and Oakland, Califor- nia. 5. Airport authority—30 percent use an airport au- thority. Washington, D.C.’s, Reagan National Airport; Dulles International Airport in Virginia; and Nashville, Tennessee, are examples. 6. Other—6 percent. Examples include Dallas/Fort Worth, Texas, which is the result of a contract between the two cities, and Monterey, California, which is oper- ated by a special local tax district.2 2 Airports Council International (ACI) 2008, available at http://www.aci-na.org.

4 All of these entities, along with the FAA, the Envi- ronmental Protection Agency (EPA) in some cases, and the Department of Defense (DOD), share responsibility with respect to airport-related land use. The person charged with overseeing the airport is typically referred to as the airport director, aviation director, or chief executive officer. This person deter- mines policy direction for his or her respective organi- zation and has several deputies, each responsible for a specific department. The usual department breakdown is as follows: • Legal. • Marketing and Public Affairs. • Finance and Administration. • Engineering and Maintenance. • Operations. • Safety and Security. Typically, the airport director/manager will report to the county board/commission or city counsel acting through its administrative system.3 Smaller airports have more simplified structures than large ones, with an airport manager, for example, reporting directly to a city manager. A. FAA’s Role in Aviation Land Use (What the FAA Does and Does Not Do) 1. Overall Authority The FAA, a subagency of the U.S. Department of Transportation, is the primary agency of the federal government charged with air safety regulation and the development and operation of the Nation’s air traffic system. In that connection, it regulates airports, air- ways, pilots, mechanics, and air controllers. It partici- pates in the regulation of aircraft manufacturers, fixed base operators, aircraft repair facilities, and related matters. It controls the industry by promulgating and enforcing a variety of Federal Aviation Regulations (FARs) and orders. It also produces Advisory Circulars (ACs) for information and guidance to the industry. Some of its actions are mandatory, while others are advisory only. In connection with the funding of airport capital improvements and operations, the FAA is in the position to set forth regulations that impact almost every aspect of airport construction—including master plans, noise restrictions, and even routes of flight, all of which clearly affect land uses in airport environs. The role of the federal government in preemption of state law was established in the case of Cooley v. Board of Wardens.4 The U.S. Supreme Court said that the fed- eral government could preempt state law when regulat- ing interstate commerce. That principle resides as a result of the U.S. Constitution’s supremacy rule being employed when there is actual conflict with state law, when a state law would be an obstacle to affecting the 3 Id. 4 53 U.S. 299, 13 L. Ed. 996, 12 How. 299 (1851). purposes of federal legislation, or a federal law is so comprehensive as to preempt the field. Further, these tests are met when the Interstate Commerce Clause of the U.S. Constitution is at issue, as in the control of the skies. When the FAA is regulating air commerce, it is acting under the Federal Aviation Administration Au- thorization Act,5 which includes the authority to regu- late most aspects of aviation and, by extension, many issues concerning airports. The FAA, however, does not undertake to enact or enforce local land use controls, and leaves those issues to local government. By federal statute and by case law, as shown by a number of federal cases, the FAA does not have a direct hand in zoning and regulating devel- opment around airports, but nevertheless plays several important roles related to compatible land use, includ- ing planning, technical assistance, and funding for air- ports. While the agency has no direct authority to regu- late land use at the local level, one only needs to look at the myriad of congressional acts that empower FAA to have some influence on airport environs and operations. There are numerous declarations by FAA that it is not in the business of airport land use compatibility planning. It has no statutory or regulatory authority to do so. Its job is to regulate navigable airspace and air- ports, not airport-neighbor uses.6 The federal government does not control land use. The FAA does set forth guidelines for land use compati- bility to assist those responsible for determining the acceptable and permissible land uses in the vicinity of airports.7 Recently the FAA created a land use planning guide entitled Land Use Compatibility and Airports (the Guide), which sets forth in some detail the problem of airport land use incompatibility and clearly establishes the federal government’s relationship to local land use. The following language appears in the Executive Sum- mary: This guide identifies a wide variety of possible land use control methods as they relate to compatible land use planning efforts. This guide also recognizes that state and local governments are responsible for land use planning, zoning, and regulation and presents options or tools that can assist in establishing and maintaining compatible land uses around airports. [Emphasis added].8 As to land use compatibility, by the FAA’s mecha- nism of providing funds and conditioning such funding on the establishment of aircraft approaches, clear zones, and height controls over properties near airports, local governments are subject to meeting all those regu- 5 103 Pub. L. No. 305, 108 Stat. 1569, 49 U.S.C. § 4-101, et seq. (1994); See Federal Aviation Act of 1958, 85 Pub. L. No. 726, 72 Stat. 731, 49 U.S.C. 1301, et seq. 6 103 Pub. L. No. 272, 108 Stat. 1101, 49 U.S.C. § 40103, where provision describes the former 1348(a). 7 www.aee.faa.gov/lui/moc.rec1.html. 8 See ES-1, available at http://www.faa.gov/about/office_org/headquarters_offices/aep/pl anning_toolkit/media/III.B.pdf.

5 lations. While it is clear that airport land use issues, with some exceptions, are the province of local authori- ties, there are notable exceptions—for example, noise, height, and environmental issues around airports are clearly within federal preemption.9 With respect to pro- trusion of structures into the air and with respect to noise, see FAA AC 150. The National Environmental Policy Act (NEPA)10 requires the FAA to research envi- ronmental issues. The FAA draws its authority from the Interstate Commerce Clause of the U.S. Constitu- tion.11 Court decisions involving airspace often invoke the doctrine of federal preemption over state or local controls, but nevertheless, the courts have created some confusion as to just where federal regulation stops and local controls begin. This complexity has led to a mud- dled set of regulations, cases, and advisories. It is little wonder, therefore, that many city and county regula- tory agencies have difficulty in reconciling where their entity should or can act with respect to airport land use. In City of Burbank v. Lockheed Air Terminal, Inc.,12 the Supreme Court held that local ordinances that un- dertook to make it unlawful for aircraft to serve a major airport except during certain hours to relieve citizens from aircraft noise at night were invalid. It based the decision on the fact that Congress had enacted the Fed- eral Aviation Act and the subsequent Noise Control Act and that, by virtue of federal supremacy, the federal government had preempted any claimed local authority over the skies. Later cases supported the Burbank find- ings. In Price v. Charter Township of Fenton,13 a federal district court struck down a local ordinance and said that the local authority could not restrict flight opera- tions under the aegis of using “zoning power” in the face of federal controls. In Burbank–Glendale–Pasadena Airport Authority v. City of Los Angeles,14 the Court of Appeals for the Ninth Circuit held that federal aviation law preempts a city ordinance when safety is an issue. The basic facts of that case were that when Burbank- Glendale-Pasadena, et al., planned to extend a taxiway on a parcel of land owned by the City of Los Angeles, the Los Angeles City Council passed an ordinance that would have prevented the extension. The court said that the attempt to frustrate the airport authority’s plans was preempted by federal law and added that it was clear that the city could not interfere with safety of flight. 9 14 C.F.R. pt. 77. 10 91 Pub. L. No. 190, 83 Stat. 85242 U.S.C. § 4321, et seq. 11 U.S. CONST. art. I, cl. 3. 12 411 U.S. 624, 93 S. Ct. 1854, 36 L. Ed. 2d 547 (1973). 13 909 F. Supp. 498 (1995). 14 979 F.2d 1338 (9th Cir. 1992). 2. Planning Tools FAA does help promote compatible land use plan- ning and has prepared an “Airport Noise Compatibility Toolkit,” which land planners may find useful.15 3. Airport Noise Compatibility Planning Toolkit The Airport Noise Compatibility Toolkit implements the FAA Land Use Planning Initiative’s short-term rec- ommendations to develop a land use planning informa- tion package for FAA regions. This toolkit is designed to aid regional offices in assisting state and local officials and interested organizations in airport noise compati- bility planning around the Nation’s airports. A similar version of the toolkit is being specifically designed for use by state aviation officials. The toolkit has the fol- lowing sections: FAA Policies, Regulations, Programs, and Funding Sources • Excerpts from 1976 Aviation Noise Abatement Pol- icy. • Overview of 14 C.F.R. Part 150, Airport Noise Compatibility Planning Program. 14 C.F.R. Part 150 Regulation • Airport Noise Compatibility Planning. • Overview of FAA Policy on Part 150, Approval of Noise Mitigation Measures. • Final Policy on Part 150, Approval of Noise Mitiga- tion Measures. • Community Involvement Policy Statement. FAA Guidance Materials • Land Use Compatibility and Airports, a guide for effective land use planning. Advisory Circular 150/5020-1 • Noise Control and Compatibility Planning for Air- ports. • Land Use Planning Process Flow Chart. • FAR, Part 150, Process. • Aviation Noise Demonstration System and Land- based Classification Standards. State and Local Noise Compatibility Programs • State of California Real Estate Transfer Disclosure Law and Statement. • State of Hawaii Statute–Chapter 508D, Mandatory Seller Disclosures. • Sample Aviation Easement from Raleigh-Durham International Airport’s Ordinance. • Washington State Airport Land Use Compatibility Program. • Loudon County, Virginia, County Zoning Ordi- nance Establishing an Airport Impact Overlay District. 15 http://www.faa.gov/about/office_org/headquarters_offices/aep/pl anning_toolkit/.

6 • NASAO/FAA Survey, Cooperative Partnership Be- tween the FAA and the State Agencies for Reducing Community Concerns Related to Aircraft Noise, Febru- ary 2000. • Bibliography of compatible land use plans/model zoning ordinances. Communication Tools • Community Involvement Manual. • Sample speeches. • Excerpts of written and oral testimony. • Slide Presentation on Federal Policy for Land Use Compatibility Planning. Additional Tools • Toolkit Action Log Form (PDF). “These [listed] sections include documents to help you and other FAA regional officials provide guidance and land use information at local meetings, public in- formation meetings, and other opportunities.”16 The following listing and description of related fed- eral statutes that impact, directly or indirectly, airport land use was prepared by the Minnesota Department of Transportation.17 Note the cross-hatching of the many federal actions that local governments are bound to re- spect and follow, particularly if they are seeking any federal funding for capital improvements or operations for an airport. Obviously, certain of these regulations that are safety-of-flight issues pertain to all airports, public or private. • Airport and Airway Improvement Act of 1982, 49 U.S.C. 471 re: Grant Assurances: The safe operation of the airport and airways system in the United States is of “the highest aviation priority.” § 47101(a)(1) author- izes the Secretary of Transportation to provide grants for airport development and sets out procedures for grant applications and awards. Airport owners and op- erators, in exchange for federal support funding, must make specific assurances, including mitigating and pre- venting airport hazards and maintaining compatible land uses around airports by the adoption of zoning laws. § 47107(a)(9), (10). • Safety Regulation (Aviation Programs—Air Com- merce and Safety) 49 U.S.C. 447: The FAA is required to take measures to “promote safe flight of civil air- craft.” § 44701(a). Certain minimum safety standards apply to operating airports that serve aircraft designed for at least 31 passenger seats. § 44701(b)(2). The FAA is authorized to issue airport operating certificates, to 16 http://www.faa.gov/about/office_org/headquarters_offices/aep/pl anning_toolkit/. 17 OFFICE OF AERONAUTICS, MINN. DEP’T OF TRANSP., AIRPORT COMPATIBILITY MANUAL, available at http://www.dot.state.mn.us/aero/avoffice/planning/airportcomp manual.html. include terms to insure safety, § 44706(b), which are mandatory for airports to operate, § 44711(a)(8). Also, there is the authority to regulate structures that could interfere with navigable airspace. § 44718. • Notice of Construction, Alteration, Activation, and Deactivation of Airports, 14 C.F.R. Part 157: This regu- lation requires anyone who intends to construct, alter, activate, or deactivate an airport to notify the FAA, which then issues a written determination that consid- ers the effect of the change on “the safety of persons and property on the ground.” § 157.7. • Objects Affecting Navigable Airspace, 14 C.F.R. Part 77: Establishing standards for determining ob- structions in navigable airspace. Sets forth require- ments for construction and alteration of structures (e.g., buildings, towers, etc.), including buildings, cranes, cell towers, etc., in the airport vicinity. • Proposed Construction or Alteration of Objects That May Affect the Navigable Airspace, FAA AC 70/7460-2K (2000)/(re: Form 7460-1): Form 7460-1 is required at all federally supported airports to consider each proposed construction near the airport. FAA con- ducts a study and determines whether or not the pro- posed development is a hazard to airspace. • U.S. Standards for Terminal Instrument Proce- dures (TERPS), FAA Order 18 (November 1999) and FAA Order 8260.3 B, Change 14 (July 7, 1976, with Changes 1–19 through May 2002): Here, standards for designing and setting forth Terminal Instrument Flight Procedures (TERPS) are established and constraints set forth that could impact land uses allowable beneath certain surfaces. • Criteria for Municipal Solid Waste Landfills, 40 C.F.R. Part 258, Subpart B—Location Restrictions: The subpart establishes criteria for the expansion or devel- opment of new municipal solid waste landfills (MSWLFs), so that the units do not pose a bird hazard to aircraft. Any owners or operator proposing to site a new MSWLF unit within a 5-mi radius of any airport runway end must notify the affected airport and the FAA. • Airport Land Use Compatibility Planning, FAA Advisory Circular, AC 150/5060-6 (1977): A guide to help development of an airport-area com- patibility plan to prohibit areas surrounding an airport that could pose a risk to the airport’s operations from being developed. Land use and noise issues are consid- ered and spoken to. • Airport Master Plans, FAA AC 150/5070-6B (2005): Guidance for the preparation of master plans for airports from small GA to large commercial facilities. This guidance incorporates methods and techniques associated with airport master plan studies, including current industry methods and procedures commonly employed in the preparation and documentation of mas- ter plan studies. The AC attempts to foster a flexible approach to master planning and directs attention to the most important issues. • Model Zoning Ordinance to Limit Height of Objects Around Airports, FAA AC 150/5190-4A (1987): This AC

7 concerns developing zoning ordinances to control the height of objects that could protrude and be a hazard to flight. Considering all of the authority and guidance of the FAA concerning airports and land use activities, it is clear that local units of government must enact or en- force local land use controls that are consistent with all of the items mentioned. Nonetheless, see the California Airport Land Use Planning Handbook for the following quotation: Land use safety compatibility guidance from the Federal Aviation Administration (FAA) is limited to the immedi- ate vicinity of the runway, the runway protection zones at each end of the runway, and the protection of navigable airspace. The lack of FAA land use compatibility criteria for other portions of the airport environment is often cited by land use development proponents as an argument that further controls on land use are unnecessary. What must be remembered, however, is that the FAA has no author- ity over off-airport land uses—its role is with regard to the safety of aircraft operations. The FAA’s only leverage for promoting compatible land use planning is through the grant assurances which airport proprietors must sign in order to obtain federal funding for airport improvements. State and local agencies are free to set more stringent land use compatibility policies as they see fit. [Emphasis added].18 4. FAA’s Regulations Concerning Height Restrictions (14 C.F.R. Part 77) The FAA’s regulation of airspace around airports is established primarily to protect aircraft, occupants, and people on the ground. However, only local governments have the authority to correct or prevent any construc- tion or alterations that would pose a hazard to air navi- gation. FAR Part 77 identifies airspace within which development should be controlled to protect air naviga- tion. It describes a number of imaginary surfaces with various shapes for different types of airports and run- way configurations. Whether a particular object consti- tutes an obstruction depends on the height of the object and its location in proximity to the airport. The regula- tions establish a three-dimensional space in the air around the airport; any object penetrating that space is considered an obstruction hazard and may affect the aeronautical use of the airspace. Antennas, buildings, other types of structures, and trees should be limited so as not to pose a threat to aircraft. Dimensions of the surfaces vary from airport to air- port depending on the runway classification. The follow- ing descriptions of the surfaces are abbreviated from the federal documents. 18 DIV. OF AERONAUTICS, CAL. DEP’T OF TRANSP., CALIFORNIA AIRPORT LAND USE PLANNING HANDBOOK, avail- able at http://www.dot.ca.gov/hq/planning/aeronaut/documents/ALUP HComplete-7-02rev.pdf, at 9-4. • Primary Surface: A surface longitudinally centered on a runway and extending 200 ft beyond the end of that runway. The width of this surface is 250 ft. The elevation of any point on the primary surface is the same as the elevation of the runway at that point. • Approach Surface: A surface longitudinally cen- tered on the extended runway centerline and extending outward and upward from each end of the primary sur- face. The inner edge of the approach surface is the same as the width of the primary surface and it expands uni- formly to 1,250 ft at a distance of 5,000 ft. The slope of this surface is 20:1. • Transitional Surface: These surfaces extend out- ward and upward at right angles to the runway center- line or its extension at a slope of 7:1 from the sides of the primary surfaces and the approach surfaces. • Horizontal Surface: A horizontal plane 150 ft above the established airport elevation, the perimeter of which is constructed by swinging arcs of 5,000 ft from the center of each end of the primary surface of each runway and connecting the adjacent arc by lines tan- gent to those arcs. • Conical Surface: A surface extending outward and upward from the periphery of the horizontal surface at a slope of 20:1 for a horizontal distance of 4,000 ft. The purpose of these imaginary surfaces is to protect the approach, departure, and circling airspace in the vicinity of the airport. Any object that penetrates the surfaces is an obstruction. FAA reviews each proposed obstruction to determine if it constitutes a hazard to air navigation. In addition to natural objects or man-made struc- tures that protrude above the planes or surfaces de- fined, certain other uses are to be restricted or prohib- ited:19 1. Uses that release into the air any substance that would impair visibility or otherwise interfere with the operation of aircraft (i.e., steam, dust, or smoke). 2. Uses that produce light emissions, either direct or indirect (reflective), that would interfere with pilot vi- sion. 3. Uses that produce electrical emissions that would interfere with aircraft communications systems or navigational equipment. 4. Uses that would attract birds or waterfowl, includ- ing but not limited to, operation of sanitary landfills, maintenance of feeding stations, sand and gravel dredg- ing operations, storm water retention ponds, created wetland areas, or the growing of certain vegetation. 5. FAA’s Involvement in Noise Issues In addition, as a means of implementing the Avia- tion Safety and Noise Abatement Act of 1979,20 the FAA 19 14 C.F.R. pt. 77. 20 103 Pub. L. No. 272, 108 Stat. 1284, 49 U.S.C. 47501 et seq.

8 adopted regulations21 establishing a voluntary program that airports can utilize to conduct airport noise com- patibility planning. Part 150 states: “This part pre- scribes the procedures, standards, and methodology governing the development, submission, and review of airport noise exposure maps and airport noise compati- bility programs, including the process for evaluating and approving or disapproving these programs.” Part 150 also prescribes a system for measuring air- port noise impacts and presents guidelines for identify- ing incompatible land uses. Airports that choose to un- dertake a Part 150 study are eligible for federal funding both for the study itself and for implementation of ap- proved components of the local program. The noise ex- posure maps are to be depicted in terms of average an- nual day-night average sound level (DNL) contours around the airport. For the purposes of federal regula- tions, all land uses are considered compatible with noise levels of less than DNL 65 dB. At higher noise expo- sures, selected land uses are also deemed acceptable, depending upon the nature of the use and the degree of structural noise attenuation provided. In setting the various compatibility guidelines, however, the regula- tions state that the designations …do not constitute a Federal determination that any use of land covered by the [noise compatibility] program is ac- ceptable or unacceptable under federal, state, or local law. The responsibility for determining the acceptable and permissible land uses and the relationship between spe- cific properties and specific noise contours rests with the local authorities. FAA determinations under Part 150 are not intended to substitute federally determined land uses for those determined to be appropriate by local authori- ties in response to locally determined needs and values in achieving noise compatible land uses.22 The U.S. DOD is another federal agency that has some land use controls. They include safety criteria and define certain potential “impact” zones near military airfields.23 These zones were created based on a study of where military aircraft accidents had occurred in the past. Each of the three designated accident potential zones (APZs) requires consideration of uses for land located within those zones. For example, the use of property for residential purposes is considered incom- patible in APZ I and compatible only at low densities in APZ II. Generally, this DOD action overrides any local land use, and typically, if the uses of these zones is in- compatible with affected land, DOD will acquire the properties outright or gain easements. 21 14 C.F.R. pt. 150. 22 DIV. OF AERONAUTICS, CAL. DEP’T OF TRANSP., CALIFORNIA AIRPORT LAND USE PLANNING HANDBOOK, avail- able at http://www.dot.ca.gov/hq/planning/aeronaut/documents/ALUP HComplete-7-02rev.pdf. 23 Air Installation Compatible Use Zones (AICUZ), DOD, 1977; 32 C.F.R. pt. 256 (as to both noise and safety). B. State Aviation Regulatory Agencies, Their Authority and Activities After reviewing all of the land use control functions of FAA, it is useful to review the myriad of airport- related land use statutes, ordinances, regulations, and processes, including court actions, that have emerged to regulate and enforce airport-area land use at local lev- els. In many cases, since counties and cites are gener- ally the creatures of state government, questions of land use control generally are delegated to local county, city, or port authority units of government. While every state authorizes local zoning controls, some 30 specifi- cally refer to airport zoning. Those states authorize lo- cal governments to create airport zoning, through an overlay plan, comprehensive plan, master plan, or simi- lar mechanism. In addition to the general land control that rests at the state level, local communities—cities, counties, or port authorities—have shown particularly good leadership in addressing the airport land use prob- lems. But, on balance, where state aviation offices have been more aggressive in airport land use issues, there is more consistency in the regulatory framework, driven by a clear recognition that airports are sites of economic importance and a vital transportation link to the entire United States and the international community as well. A few state transportation/aviation agencies have created airport land use manuals and provided them to local governments. Several models of these activities were examined as part of this report. California pro- vided leadership in the land use area by commissioning a study in the early 1980s that, in turn, used informa- tion gathered by the Institute of Transportation Studies at the University of California–Berkeley with respect to aircraft safety, including protection of citizens owning property near airports, as discussed below. California,24 the Denver Council of Governments,25 Florida, 26 Oregon,27 Minnesota,28 Washington,29 and Wisconsin,30 to name a few, have established programs that show important progress in providing assistance to local communities with respect to airport land use com- patibility. State aviation agencies have, with the sup- port and blessing of legislatures, provided help to local 24 DIV. OF AERONAUTICS, CAL. DEP’T OF TRANSP., CALIFORNIA AIRPORT LAND USE PLANNING HANDBOOK. Hodges and Shutt Consultants, 1993. 25 DENVER COUNCIL OF GOVERNMENTS (DRCOG), AIRPORT COMPATIBLE LAND-USE DESIGN HANDBOOK (1998). 26 OFFICE OF PUBLIC TRANSP., FLA. DEP’T OF TRANSP., AIRPORT COMPATIBLE LAND-USE GUIDANCE FOR FLORIDA. 27 AERONAUTICS DIVISION, OR. DEP’T OF TRANSP., AIRPORT COMPATIBILITY GUIDELINES (vol. VI of the Oregon Aviation System Plan, 1981). 28 OFFICE OF AERONAUTICS, MINN. DEP’T OF TRANSP., AIRPORT COMPATIBILITY MANUAL. 29 AERONAUTICS DIVISION, WASH. STATE DEP’T OF TRANSP., LAND-USE GUIDELINES STUDY (vol. VIII of the Washington State Airport System Plan, 1991). 30 WIS. DEP’T OF TRANSP., GUIDE FOR LAND USE PLANNING AROUND AIRPORTS IN WISCONSIN, 1989.

9 governments in airport land use issues and, in fact, have in some cases mandated local commission or plan- ning units to do significant land use planning for air- port-related areas. In California, the State Aeronautics Act31 requires each county that has an airport to create an Airport Land Use Commission (ALUC) and prepare an Airport Land Use Plan. Such a plan should define its scope, establishing land use policies in the area of noise, safety, airspace protection, and overflight issues. Each ALUC is required to create a compatibility table that describes zones near the airport and establishes what uses those zones can be put to and what uses are pro- hibited.32 The Caltrans Handbook specifies what regulations are in place for local governments to follow regarding airport-related land use planning, gives technological and sound reasoning to support the suggested (and mandatory) processes, and deals with all the issues of preplanning for land areas, mitigation of situations where land use is found to be incompatible with airport development, and what to do to mitigate nonconforming uses if they are found to exist. The Caltrans Handbook, first created in 1983 and updated in 1992, has led to the development of local (county or city) land use hand- books and ordinances throughout the state, and particularly where urban growth has proliferated in airport-related environs.33 Similarly, the handbooks of other states approach the situation in light of the legislative authority in those particular states, which, in many cases, differ substantially from that of California. Most of the hand- books and guidebooks reference the statutes of the state that refer to preparing a “comprehensive land use plan” or to the use of zoning as the tool of local governments to approach airport-area noncompatibilities. Some examples of state statutes or statements from the various guidebooks regarding airport-related land use appear in Appendix B. C. Local Communities and Zoning Authority As indicated, all 50 states have enacted legislation that authorizes local governments to regulate land use by some form of zoning, comprehensive plan, overlay district, or similar mechanism, and over 30 states have adopted statutes that specifically grant local govern- ments authority to adopt airport zoning regulations. Most jurisdictions today are involved in various land use plans that undertake to establish long-range land use. Many of these plans, however, do not have much to say about airports, their existence or expansion, and their impact on the local community. This may be be- cause many local planners are not experienced in avia- tion matters and simply do not address some of the is- 31 California Public Utilities Code, commencing with § 21670 (div. 9, pt. 1, ch. 4, art. 3.5). 32 Id. at 24. 33 Available from Caltrans in written form and by compact disk for a modest fee. sues, except where a major airport exists or is planned, and then much planning attention is brought to bear. In general, the U.S. Supreme Court, in the landmark case of Village of Euclid v. Ambler Realty Co.,34 recog- nized municipal planning and regulation of land use as a valid exercise of “police power.” That case, widely cited in zoning matters, recognized the authority of states to authorize local community planning and de- fined what the U.S. Congress attempted to codify in the Standard City Planning Enabling Act (1928). This Act permits the establishment of a planning commission at the municipal level, including a “master plan” or a “zon- ing plan” for the “control of the height, area, bulk, loca- tion, and use of building and premises.” However, irre- spective of that activity, actual local authority derives from state zoning enabling acts, not in the federal gov- ernment, so most of the decisions ruling on the validity of zoning acts are in state courts interpreting state statutes, except where a federal question of preemption is present, as in aviation regulations, noise controls, or “takings” of land use or easements based on an overrid- ing federal action. On occasion, state courts will look to federal cases and federal law as dispositive of local aviation contests. It follows that when personal interests in land are affected as to values, use, and purpose, property owners are constantly testing the validity of zoning acts by lo- cal governments. There are literally thousands of cases in this area, and a review of the actions of courts strongly suggests that there are issues that go to both federal and state constitutionality. City and county ad- ministrations must be constantly aware that zoning in its broadest sense must meet the subdefinitions of “po- lice power,” namely, health, safety, and welfare. What the cases say has extreme relevance to the air- port land use issues and ultimately to “takings,” equat- ing that principle with eminent domain, whether the action is an affirmative step by local governments or a reactive defense by local governments to claims of in- verse condemnation, which, in turn, can represent sub- stantial liability on governmental units. In Section VI of this report, where the issue of “takings” is explored, there are examples of millions of dollars in payment to a landowner who has successfully convinced a court that the zoning authority has taken his property. These decisions should be a wake-up call and warning to local agencies that they need to be certain their land use planning and zoning are well-founded and that they have taken whatever protective actions are available to avoid financial liability. Local authorities must be careful to recognize that zoning without a “master plan” or “comprehensive plan” can be subject to attack by landowners who may claim that the community failed to approach land use zoning with adequate planning. Typically, enabling acts by the state legislatures permit or direct municipalities to es- tablish planning commissions, the duties of which are to create a “zoning plan” for the “control of the height, 34 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926).

10 area, bulk, location, and use of buildings and prem- ises.”35 If the court sees a particular zoning action as “spot” zoning, it follows that adoption of a zoning plan may not have been developed in accordance with an overall leg- islative mandate to create a “comprehensive plan.”36 The spot-zoning cases, like those dealing with partial zon- ing appear to make the legislative requirement in accor- dance with a comprehensive plan a nullity. The words be- come a…reminder of the underlying test of constitutionality. So long as the legislation is reasonably related to the police power, plausibly serving the ends of health, safety, welfare, morals, and not demonstrably ar- bitrary or discriminatory, it will be sustained. To avoid the charge of spot zoning, the community must be sure only that in dealing with one land parcel other similar situations have been taken into account. In this sense, “comprehensive” is virtually synonymous with “uniform,” the uniformity being in terms either of the ordinance it- self or generalized…“policy.”37 It follows, then, that “haphazard” or “spot” zoning can be subject to challenges of constitutionality, par- ticularly if the state statute infers the concept “in ac- cordance with a comprehensive plan” or, certainly, that the zoning is itself judged by a court to the “plan.” Airport land use plans, as part of a “master plan” or “comprehensive plan,” have rarely been successfully attacked when they follow the police powers concepts— particularly since health, safety, and public welfare seem clearly to be a central purpose of airport land use controls. This does not mean, however, that a plan and accompanying ordinances will necessarily insulate the local government from financial liability in all cases. Further, the handbooks issued by states, and also by the FAA, often include a “model” ordinance for use by local governments that should be helpful to cities, coun- ties, and port authorities; for example, the following model from Oregon. Model Public Use Airport Safety and Compatibility Over- lay Zone for Public Use Airports with Instrument Ap- proaches .010 Purpose. The purpose of this overlay zone is to en- courage and support the continued operation and vitality of public use airports with instrument approaches by es- tablishing compatibility and safety standards to promote air navigational safety at such public use airports and to reduce potential safety hazards for persons living, work- ing or recreating near such public use airports.38 In Wyoming, the suggested land use protection ordi- nance undertakes to incorporate both the FAA’s sug- gested Part 77 ordinance with respect to heights of ob- structions and its Part 150 with respect to noise issues.39 35 PA. STAT. ANN. tit. 53 § 9166 (1938). 36 Charles M. Harr, In Accordance with a Comprehensive Plan, 68 HARV. L. REV. 1154 (1955). 37 Id. at 1170. 38 Airport Land Use Compatibility Handbook, Appendix G. 39 See a model provided by the Wyoming Aviation Depart- ment, tit. 15, WYO. STAT., art. 6, ch. 1. An example of a comprehensive county ordinance with respect to airport land use is the one enacted for Lenawee County, Michigan. The ordinance follows the recommendations of the Michigan Department of Transportation Bureau of Aeronautics, illustrating that a state aviation agency can influence how local govern- ments react to the advice of the state agency. Note the reference to the purposes, namely: health, safety, and general welfare (police powers). The section quoted be- low is simply the statement reflecting the authority of the county to enact an airport zoning ordinance and is shown here to reflect how important the lead-in is to the county action: Lenawee County (Michigan) Airport Zoning Ordinance Adopted October 12, 2006 An ordinance establishing airport zoning regulations re- stricting the height of structures and objects of natural growth and otherwise regulating the use of property in the vicinity of the Lenawee County Airport; providing for the allowance of variances from such regulations; desig- nating the Administrative Agency charged with the ad- ministration and enforcement of such regulations; estab- lishing an airport zoning board of appeals, providing for enforcement; and imposing penalties for violation of this Ordinance. Pursuant to the authority conferred by the provisions of Act No. 23 of the Public Acts of the State of Michigan for the year 1950 (Extra Session) and as amended Act. No. 158 of the Public Acts of the State of Michigan for the year 1976 for the purpose of promoting the health, safety and general welfare of the inhabitants of the county of Lenawee by preventing the establishing of airport hazards and thereby protecting the general pub- lic, users of the Lenawee County Airport and occupants of land in its vicinity, and preventing the destruction and impairment of the utility of said airport and the public investment therein; The Lenawee County Board of Com- missioners and the Lenawee County Airport Zoning Board under the provisions of Section 13 of Act No. 23 of the Public Acts of the State of Michigan for the year 1950 (Extra Session) and as amended Act No. 158 of the Public Acts of the State of Michigan for the year 1976, does hereby ordain the following to be known as the Lenawee County Airport Zoning Ordinance. [Emphasis added].40 Observe that the ordinance first recites the principal objective—to prevent the creation or establishment of airport hazards and to provide additional safety and protection to the users of the airport and to the people who live and work in its vicinity. Then it designates a “hazard area” as being a 10-mi radius of the airport. It further refers to the Michigan Aeronautics Commission and the FAA as having established various elevations and requires any new construction to be in accordance with the ordinance with height restrictions based on FAA standards,41 which is specifically mentioned in the ordinance. The ordinance further sets out a listing of acceptable land uses within the zones it has created, that is, residential versus nonresidential, referring to 40 Lenawee County (Michigan) Airport Zoning Ordinance, adopted Oct. 12, 2006. 41 14 C.F.R. pt. 77 et seq.

11 runway protection zones to conform with the FAA’s Airport Improvement Program, with guidelines as to land uses and strategies to prevent uses that are not in conformity with the ordinance. As for administration, it appoints a zoning administrator and a board of appeals and requires permits to be issued for development of property within the large zone so designated. It further allows for judicial action for any person who wishes to appeal from administrative actions and establishes penalties for violations. Several charts are attached as part of the ordinance to provide a visual explanation of the aircraft approach zones and the zones established for various land uses. Courts have consistently referred to “police pow- ers”—that is, health, safety, and public welfare—as key elements in reviewing the validity of zoning actions. With particular respect to airport environs, some com- munities have enacted the FAA “Model” almost verba- tim, and that has been persuasive to some courts. The following was stated in a law review article writ- ten by a member of the American Institute of Certified Planners: A fundamental issue in airport planning is the potential conflict between federal regulation and state land use law when states exercise their police power by imposing land use controls in areas subject to federal regulations. Fed- eral regulation of natural resources, economic activities, and public facilities has raised substantial questions about the exercise of federal power under the Commerce Clause in regulating local conditions. For example, FAA flight regulations for aircraft often conflict with local land use and zoning regulations designed to reduce noise from aircraft takeoffs and landings…City of Burbank v. Lock- heed Air Terminal, Inc., [411 U.S. 694 (1978)] it was held that local land use regulations to control aircraft noise are preempted by FAA regulations. But Burbank created some confusion because the Court, in dicta, distinguished between municipalities as regulators exercising police powers and municipalities as owners operating airports. Owners are allowed to impose restrictions and controls on land ownership but local governments who do not own airports cannot impose restrictions. Although Burbank is often cited for federal noise preemption the case is more important for airport vicinity planning because of the dicta in footnote fourteen…the footnote stated….”We do not consider here what limits, if any, apply to a munici- pality as a proprietor.”42 An alert to local planners is clear: they must be care- ful, if they are both the local regulatory agency and the owner/operator of the airport, to follow some well-trod paths in adopting zoning that involves airport-area properties. It appears that comprehensive planning should follow four major steps, i.e., 1) the formation of goals and objectives; 2) the making of basic research studies; 3) the drafting of the plan; and 4) implementa- tion of the plan. Effective airport planning requires a higher level of intergovernmental coordination because of the jurisdictional complexity that accompanies the 42 Steven H. Magee, Protecting Land Around Airports; Avoiding Regulatory Taking Claims by Comprehensive Plan- ning and Zoning, 62 J. AIR & COM. 243, 249 (1996). location and expansion of airports. A minority of states mandating planning requires detailed plans for air- ports, while also providing statutory authorization of airport zoning regulations. This whole debate about the bifurcation of authority over airport-related use has triggered literally thou- sands of lawsuits in the area of “takings” or inverse condemnation. Every state agency in the country as part of the research for this report was queried to de- termine whether those agencies 1) provided an airport land use compatibility guide or handbook; 2) knew of specific strategies that local governments in their state used to manage incompatibilities; and, 3) provided ad- vice to local governments as to how to manage existing incompatibilities. Of the 50 states, 25 agencies re- sponded to the requests for information. Some state aviation agencies do provide airport compatibility land use materials and some provide copies of sample ordi- nances or other legal materials, but few give much ad- vice to local governments except to refer them to federal regulations. In some states, the involvement of state aviation agencies is more intensive than in others. In a few ju- risdictions, the state owns or directly controls a number of airports, but, by far, most airport ownership is vested in either cities or counties. D. Local Authorities and Airport Noise Issues As a point of beginning concerning the relationship of aircraft noise/airport noise to local zoning, following is a quote from the AOPA guide: Airport safety, noise, and land use planning go hand in hand. The problem has been, in the past that most elected officials and airport sponsors just didn’t understand this interaction…. Responsible land use planning is simply a fair way to protect both the interests of the airport and the community surrounding the airport. Almost every concern a community expressed about an airport relating to noise and safety could be eliminated with responsible land use planning. [Emphasis added].43 Noise can be defined as unwanted sound. Noise is perceived differently by different individuals. In addi- tion to loudness (decibels in the A weight range), other facts that affect noise include tone, frequency, duration, weather, wind, and time of day. Wind can shift the di- rection and location of sound, low ceiling may reflect sound, and nighttime noise is more annoying than the same noise in the daytime. The major sources of noise in an aircraft engine are the machinery noise and the exhaust noise from power production. Significant reduc- tions have been made in noise from turbine (jet) en- gines, but not much has been done to reduce noise in GA aircraft. The future appears more promising with the introduction of small turbine and diesel aircraft engines, which produce less sound and emit fewer par- ticles into the air. 43 AOPA’s Guide to Airport Noise and Compatible Land Use, available at http://www.aopa.org/asn/land_use/.

12 The Federal Aviation Act of 195844 required appro- priate federal agencies to control and abate aircraft noise. The FAA implemented FAR, Part 36, which pre- scribes noise standards. The maximum allowable air- craft noise is 105 Effective Perceived Noise (EPN) level (decibels in the A weighted scale) dB-A for an aircraft approach, 103 EPNdB for sideline, and 101 EPNdB for takeoff. FAA AC 36-3G lists sound output for all GA aircraft. GA aircraft produce between 56.0 dB-A and 83.0 dB-A for a Grumman Tiger and a Saberline (busi- ness jet). NEPA45 establishes acceptable noise levels for cate- gories of use at or near operating airports. The residen- tial zoning classification allowable maximum is 65 dB-A at night (10:00 p.m.–7:00 a.m.). FAA has issued guidance with 50–60 dB-A DNL as clearly acceptable noise levels, 55–60 as normally ac- ceptable noise levels, 60–65 as marginally acceptable levels, 65–70 as normally unacceptable levels, and 70– 75 as clearly unacceptable levels.46 A review of the “noise” cases, many of which oc- curred in California, shows that communities are hav- ing difficulty attempting to solve the noise issue, the single most significant problem faced by airport opera- tors. Objections run all the way from nuisance to dis- ruption of quiet enjoyment, to the “taking” issue, where landowners claim that an “aviation easement” has been seized by airport authorities without payment of “just compensation.” The leading case for years in the noise area has been City of Burbank v. Lockheed Air Terminal,47 in which the city undertook to impose a curfew on jet operations at a privately owned airport. The legal question was simply whether the acts of the city administration were invalid because the Federal Aviation Act and the Noise Control Act of 197248 had preempted any local control over airports. Among other things, the Federal Aviation Act clearly declares that the federal government has “complete and exclusive national sovereignty in the airspace of the United States.” Further, the EPA along with the FAA has complete control over aircraft noise, making actions of local authorities unable to assert “po- lice powers” as the basis of their actions. The majority decided that state and local governments cannot use police powers to regulate the flight of aircraft and the noise so caused, in direct conflict with federal law. This left airport owners in a position to determine the length of runways, for example, and thus to deny applications for service from an air carrier if the proposed service would, in turn, require additional runways or avigation easements for the noisier aircraft. 44 90 Pub. L. No. 411, 82 Stat. 395. 45 91 Pub. L. No. 1901, 83 Stat. 852, 42 U.S.C. § 4321 et seq. 46 See FAA Airport Noise and Compatibility Planning Web site, available at http://www.faa.gov/airports_airtraffic/airports/environmental/a irport_noise/. 47 411 U.S. 624, 93 S. Ct. 1854, 36 L. Ed. 2d 547 (1973). 48 92 Pub. L. No. 574, 86 Stat. 1234, 42 U.S.C. 4901 et seq. In Airport Transport Association of America. v. Crotti,49 the plaintiff, an airline industry advocacy group that represents most major air carriers, claimed that regulations adopted by the California Department of Aeronautics, pursuant to the California Public Utili- ties Commission Code, were invalid and unenforceable. The statute gave the department the authority to estab- lish noise standards or deny airport-operating certifi- cates, revoke licenses for failure to adhere to the stan- dards, and subject the operators to a charge of criminal misdemeanor. The case was brought in federal court, where the Airport Transport Association (ATA), on behalf of the airlines, argued that the regulations were invalid and unenforceable because of federal preemption under the commerce and supremacy clauses of the U.S. Constitu- tion. Further, ATA argued that the Noise Control Act of 1972 reinforced the power of the FAA, supported by NEPA, to have total control of aircraft noise. ATA relied on the findings in Burbank. The court was not persuaded that there was federal supremacy because the airport was owned by the city, an airport operator as well as a creature of the state, but nonetheless, primarily held in favor of the federal government, while finding also that the airport owner was responsible to control noise at certain levels. In National Aviation v. City of Hayward50, the city sought to restrict aircraft operations at its airport, in- cluding the imposition of a nighttime curfew. On the one hand, the Burbank case apparently had held that “state and local governments will remain unable to use their police powers to control aircraft noise regulating the flight of aircraft,” while Crotti held that it was not the intent of Congress to completely preempt the field of aircraft noise and, by implication, all aircraft opera- tions. The Hayward ordinance was not found to place a se- rious burden on interstate commerce and since there was not a uniform and exclusive system of federal regu- lation, the “void” left the local authority the right to make curfew and certain aircraft restrictions. A claim for inverse condemnation was dismissed despite asser- tions by the plaintiffs that denial of certain access to the airport diluted the value of their leases, since the court found that the ordinance was not an unreasonable constraint. So, what is a local authority to do if it is challenged by local landowners to prohibit unwanted noise when such prohibitions could lead to, among other things, restrictions on use of the airport, curfew times, limits on aircraft size, and so on? The best solution appears to be to follow model suggestions by the FAA and the state aviation agencies if those agencies had followed the FAA guidance in AC 150. 49 389 F. Supp. 58 (1975). 50 418 F. Supp. 417 (1976).

13 For an example of what to do about noise, see the California Airport Land Use Planning Handbook.51 The following is a quote from the Handbook as it approaches the problems of aircraft noise: The subjective and highly complex nature of noise is im- plicit even in the measurement of noise. These character- istics are particularly evident with respect to measure- ment of airport noise. As discussed in this chapter, airport noise differs in many respects from other sources of noise, including other transportation noise. Also dis- cussed are the efforts, which have been and continue to be made to devise ways of describing and quantifying airport noise. Lastly, issues involved with measuring noise levels for a particular airport and projecting potential future noise impacts are addressed. Noise is often perceived to be the most significant of the adverse impacts associated with airport activity. To bet- ter understand airport noise impacts, it is important to recognize the variables involved with regard to different types of aircraft, aircraft flight routes, and other factors such as pilot technique. As experienced on the ground, the noise emitted by differ- ent types of aircraft has distinct differences in terms of both the overall sound level and other properties. There are differences in sound levels generated by a selection of general aviation, air carrier, and military aircraft in Cali- fornia. E. Ordinances Directed at the Safety Issue Attached as Appendix C is an extensive quote from Chapter 9 of the California Airport Land Use Planning Handbook (January 2002) that concerns airport safety issues and offers some excellent advice to airport plan- ners and authorities anywhere. The following is an example of a chart showing ac- ceptable and nonacceptable land uses by zones, which could be made a part of an ordinance. The one shown is from the Denver Council of Governments, and is based on a study reflecting APZs. 51 See http://www.dot.ca.gov/hq/planning/aeronaut/documents/ALUP HComplete-7-02rev.pdf. Fig. 1. Compatible and Noncompatible Land Uses— Based on Accident Potential Zone Analysis. The land uses set forth are classified as to the APZs and are based on the logic of Compatibility Land Use Listings used in the Denver Regional Council of Gov- ernments (DRCOG) Design Handbook. Each of the Iden- tified Land Use Categories is listed and various land uses have been identified and the interpretation and comments follow. Various land uses, when viewed against Accident Potential Zones (APZs) are classified as: 1) Clearly Acceptable 2) Normally Acceptable 3) Marginally Acceptable 4) Normally Unacceptable 5) Clearly Unacceptable Symbol/Classification/Comments 1. ++ CLEARLY ACCEPTABLE: The activities asso- ciated with the specified land use will experience little or no impact due to airport operations. Disclosure of airport proximity should be required as a condition of development. 2. + NORMALLY ACCEPTABLE: The specified land use is acceptable in this zone or area. Impact may be perceived by some residents. Disclosure of airport prox- imity should be required as a condition of development. In addition, dedication of an avigation easement may also be advisable. 3. ° MARGINALLY ACCEPTABLE: An impact will be perceived as a result of allowing the specified use in this zone or area. Disclosure of airport proximity and avigation easements should be required as a condition of development. 4. - NORMALLY UNACCEPTABLE: Specified use should be allowed ONLY if no reasonable alternative exists. Disclosure of airport proximity and avigation easements should be required as a condition of devel- opment. 5. — CLEARLY UNACCEPTABLE: Specified use should not be allowed. Potential safety or overflight nuisance impacts are likely in this area.

14 Each land use category would need to be integrated into existing or “new” county land use designations, but the principles would be the same. This could be done by zoning, overlay zoning, performance standards or regu- lations, subdivision controls, or similar mechanisms. The appropriate mechanism would call for identifying the zones shown on the accompanying APZ charts and cross referencing those areas to the airport land use compatibility listing, requiring compliance with the land uses set forth on the chart, subject to qualifications such as “normally acceptable,” marginally acceptable,” etc. Note that obstructions regulated under FAR, Part 77, and noise issues under FAR, Part 150, and related ACs have not been specifically addressed in this treat- ment. It is assumed that no land use in any of the APZs would violate the obstruction rules.