Achieving Airport-Compatible Land Uses and Minimizing Hazardous Obstructions in Navigable Airspace (2012) / Chapter Skim
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Pages 12-45
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13 III. LEGAL ISSUES RELATED TO ACHIEVING AIRPORT-COMPATIBLE LAND USE Achieving airport-compatible land use in compliance with FAA grant assurances -- or as a matter of policy for airports not receiving federal funds -- requires a process of establishing the legal authority to act, identifying needed property rights, and exercising appropriate means of acquiring such property rights.
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14 preemption, when land use regulation amounts to an unconstitutional taking of property, and exactions. Legitimacy of municipal zoning: The Supreme Court recognized the legitimacy of municipal zoning authority in the seminal 1926 case of Euclid v.
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15 between the federal statute and the result of state regulation.125 Federal preemption of local ordinances126 is governed by the same principles as preemption of state law.127 Regulatory taking: The Supreme Court has described the bases for regulatory taking claims as follows: "a ‘physical' taking, a Lucas-type ‘total regulatory taking,' a Penn Central taking, or a land-use exaction violating the standards set forth in Nollan and Dolan."128 Land-use regulations are subject to constitutional challenge even when the government has not physically occupied the property in question.129 The primary constitutional objection to zoning restrictions is that they violate the Takings Clause of the Fifth Amendment, which prohibits the taking of private property for public use without just compensation.130 The Takings Clause is made applicable to the states through the Fourteenth Amendment.131 State constitutions may have more stringent requirements concerning taking than those of the Fifth Amendment,132 and may specifically cover 125 The Supreme Court stated: The scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it. Or the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.
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16 tected landmark under the New York City Landmarks Law.139 This case set the modern framework for regulatory takings analysis and is widely cited in regulatory takings cases, including those involving challenges to airport zoning. Before considering Penn Central's specific arguments, the Court noted that it had previously recognized that the "Fifth Amendment's guarantee…[is]
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17 above the terminal. The Court also noted the availability of transferable air rights to nearby property owned by the appellants.
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18 Although a facial challenge to a zoning ordinance may be decided as a matter of law, the Supreme Court has described facial takings claims as difficult to demonstrate.153 Exactions: Of particular interest in the airport context is the ability to obtain property rights, notably avigation or clearance easements, as a condition of receiving a municipal permit. The Supreme Court addressed the parameters of permit conditions to obtain property rights in two seminal cases: Nollan v.
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19 Practice Aid: If the scope exceeds the asserted legitimate state interest, a conditional easement may be rendered unconstitutional. The Nollan/Dolan test does not apply to a facial challenge to a land use regulation.161 At least one state has codified the Nollan/Dolan tests for regulatory taking.162 The balance of this section of the digest discusses the major legal issues related to land-use planning and zoning that arise in the context of airport-compatible land use: reasonableness of airport zoning; federal preemption of state and local law; state preemption of local zoning ordinances; circumstances under which land-use planning and zoning may amount to taking; and conflicts between airport zoning ordinances and other local ordinances.
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20 adoption of the Noise Control Act of 1972. The Supreme Court considered whether the Federal Aviation Act,171 as amended by the Noise Control Act,172 and the implementing regulations preempted the ordinance in question.
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21 by federal airport noise and safety law. After discussing and distinguishing the cases relied upon by the airport authority, the court stressed local governments retain their power to regulate land use, even with regard to safety and noise control, so long as it does not touch upon the control of aircraft or airspace, or any aspect of aviation navigation.
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22 the Philadelphia CEP. The court found that "the nexus between air safety and the construction and reconstruction of airport runways and adjacent areas, including taxiways, is at the heart of federal preemption."189 The court held that the state law was accordingly preempted.
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23 host jurisdiction, while the latter is an exercise of police power that may be preempted by federal law.205 Courts have split on how to categorize local regulation of the placement of runways in terms of preemption.206 The Ninth Circuit emphasized that runways are used exclusively for landings and takeoffs, thus affecting navigable airspace, whereas the Ohio District Court noted that although "it is certainly true that runway placement will have some tangential effect on flight operations, the question of whether and where to construct a runway does not substantially affect the use of airspace."207 Other courts have rejected the Ninth Circuit's holding on the scope of the Aviation Act, distinguishing between occupying the field of aviation safety (preempted) and occupying the field of land-use regulations related to aviation (not preempted)
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24 Practice Aid: It is a legitimate exercise of police power to determine where an airport may be located, but once an airport is in operation, police power cannot be used to determine how flight operations will be conducted unless that power is exercised by a proprietor municipality. Preemption issues may also arise in the context of takings claims, discussed in Section II.A.4, Land Use Regulation as Taking, infra.
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25 4. Land Use Regulation as Taking226 The Supreme Court has yet to address the issue of regulatory taking in the context of airport-compatible land use requirements.
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26 the diminution was substantial was held to be a question of law. That question turned on whether the correct legal analysis under Minnesota law was that of Penn Central or of McShane.
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27 In addition, actions of one governmental entity concerning airport land use may conflict with another, regardless of whether there are two conflicting ordinances. For example, the Kansas Supreme Court recently reviewed a state airport zoning statute in a case that essentially pitted the City of Olathe, which had not adopted the county airport comprehensive compatibility plan, against Johnson County, which had adopted the plan, in reviewing a rezoning by the city that had been opposed by the airport commission.244 At issue was the county's right of review of the rezoning under a state statute covering city approval of rezoning of property located within 1 mi of certain airports.
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28 The California Public Utilities Code, for example, requires a plan for expansion or enlargement to be presented to the governmental body of the host jurisdiction before property is acquired for airport expansion or enlargement of an existing publicly owned airport.254 As noted, supra, a California appellate court has held this provision not preempted by federal law.255 Eminent Domain: Police power is generally considered distinct from eminent domain,256 although the Supreme Court's discussion of public use has arguably blurred the distinction.257 Zoning regulation and the exercise of eminent domain may conflict.258 Depending 254 The provision reads: (a) Prior to the acquisition of land or any interest therein, including tide and submerged lands or other lands subject to the public trust for commerce, navigation, or fisheries, by any political subdivision for the purpose of expanding or enlarging any existing publicly owned airport, the acquiring entity shall submit a plan of that expansion or enlargement to the board of supervisors of the county, or the city council of the city, in which the property proposed to be acquired is located.
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29 recognized in the town's own zoning ordinance. The airport authority appealed the issuance of the zoning variance, in essence threatening to sue to force the town to enforce its zoning ordinance.
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30 1. Need for Avigation Easements United States v.
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31 tion occurs when flights begin to operate regularly and frequently at a low altitude with the intention of continuing the flights indefinitely, and that an additional taking may occur if the number of flights increases or noisier aircraft are introduced.293 Thus in that case, the timeframe for measuring the scope of the easement, considering both number of flights and noise level of operations, was held to be a question of fact, and sufficient to defeat the government's motion for summary judgment. Inverse condemnation claims regarding avigation easements are discussed in Section III.D, Inverse Condemnation, infra this digest.
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32 City of Tigard, supra, will apply to certain regulatory schemes to obtain avigation easements. The standard under Nollan and Dolan for determining whether such regulatory requirements survive a taking claim is that 1)
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33 LUBA further noted that the remaining three elements "arguably function to actually reduce airport/land use conflicts, have some bearing on the city's presumed objective in reducing land use conflicts, and could have, at least in some cases, some relationship to the impacts of developing property." Thus, if the easement only included those elements, it might survive a facial challenge.308 After an Oregon appellate court affirmed the LUBA decision, the Hillsboro City Council decided not to appeal the decision further and instead to revise its ordinance to address LUBA's holdings. The Hillsboro Planning Commission concluded that the potential for as-applied challenges was an unacceptable liability, and recommended deleting the easement requirement, substituting a requirement that verification be provided that some level of contact has occurred between the applicant and airport sponsor.309 Practice Aid: LUBA distinguished between easements aimed at limiting liability and easements aimed at directly preventing land-use conflicts.
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34 ment:318 defending against inverse condemnation or nuisance actions319 or seeking the authorization to remove obstructions without going through the condemnation process.320 Prescriptive easements are not compensable.321 Whether avigation easements in particular are recognized is a matter of state law. These state law holdings are binding in federal court.322 Connecticut has recognized prescriptive avigation easements, provided that the requisite adversity is present.323 However, to defeat a trespass claim, the conduct asserted must not expand upon the easement that was prescriptively obtained.324 In Westchester v.
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35 The court also held that the fact that the predecessors in interest had entered into a boundary agreement did not constitute notice of the property owner's intent to prevent the airport from acquiring a prescriptive easement, as the agreement had merely been intended to resolve a property line dispute. Finally, the court addressed a question concerning the scope of the easement.
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36 5. Conservation Easements Conservation easements may be used to prevent incompatible development in the vicinity of an airport.
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37 section discusses a number of issues in the context of airport sponsor activities: statutory authorization of eminent domain power, procedural requirements of eminent domain, public purpose, jurisdictional conflicts, the effects of precondemnation activity, and requirements for compensation.
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38 authority in taking a property in fee simple for noiseabatement and safety-zone compliance purposes, rather than merely taking the buildings in question and leaving the ownership of the underlying land with the current property owner. The court cited an earlier Minnesota appellate case, in which the court had ruled -- relying on the public necessity declaration in the Minnesota aviation statute, supra -- that a municipality's condemnation of property in fee simple, rather than just taking clear zone or transitional zone easements, was not more than necessary for public use.367 The Minnesota Supreme Court has held that the standard under the Minnesota statute is merely that the taking is a reasonable means to an end, rather than the best possible alternative.368 3.
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39 4. Procedural Requirements Strictly Construed: The statutory requirements for condemnation must be strictly observed.377 For example, the Nebraska Supreme Court held that an eminent domain proceeding by an airport authority constituted an unlawful taking in part because statutory notice requirements had not been observed.378 Standing: A neighboring jurisdiction may object to the exercise of eminent domain by the airport sponsor to obtain property in that jurisdiction.
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40 such excessive delay was at issue, a California appellate court recently held that a voluntary program to acquire property in an area near Los Angeles International Airport did not constitute condemnation by blight of property whose owners had not participated in the program.389 The court held that the purpose of the program, which included relocation assistance, was to assist property owners who were disturbed by airport noise. Thus there was no future public purpose for the land, a necessary element in a claim for inverse condemnation by blight.
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41 D Inverse Condemnation Inverse condemnation is "a landowner's action to recover just compensation for a taking by physical intrusion."401 In addition, such an action may be brought for a de facto taking achieved through a "government intrusion of an unusually serious character"402 or an abuse of the exercise of eminent domain.403 Thus an inverse condemnation action may be sustained even though there is no physical possession by the governmental entity.404 However, to bring an action for inverse condemnation, the plaintiff must have a legallyprotected property right.
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42 A taking under a formal condemnation proceeding and a taking by physical intrusion or de facto taking differ as to the burden of moving forward and valuation of the property taken. In the case of condemnation, the onus is on the governmental entity to bring the action, and the taking is considered to take place during the condemnation proceedings, so that the valuation is relatively current.
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43 In addition, the statute of limitations may vary depending on whether the claim is for a physical taking or a regulatory taking.428 For example, the California Supreme Court has held that a takings challenge to a rent-control ordinance was subject to the 90-day statute of limitations for challenging zoning ordinances, rather than the 5-year limitation on claims "arising out of the title to real property, or to rents or profits out of the same."429 The balance of this section discusses several inverse condemnation issues in the context of airport cases: determining whether inverse condemnation has occurred; the difference between an action for inverse condemnation and actions for nuisance or trespass; the elements of a physical taking analysis for purposes of inverse condemnation; and limitations on liability for inverse condemnation. Discussion of inverse condemnation in a regulatory takings context was covered in Section III.A.4, Land Use Regulation as Taking, supra, and is not revisited in this section.
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44 ready been filed, although it may also retain jurisdiction pending resolution of the state claim.440 Plaintiffs alleging inverse condemnation may also allege tort claims such as nuisance and trespass.441 Such tort claims are traditionally decided under state law.442 As a constitutional violation, inverse condemnation requires greater interference with property than do tort claims. In addition, available damages and availability of the sovereign immunity defense may be different for inverse condemnation and tort claims.
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45 The Supreme Court has held that property owners have an interest in the immediate space over their property, whether or not they actually use that space.455 Thus regular and frequent flights over private land at altitudes of less than 500 ft that constitute "a direct, immediate, and substantial interference with the use and enjoyment of the property" amount to a taking of an avigation easement.456 The flights must be regular, frequent, and below the navigable airspace and interfere with the use of the property. More recent cases have found that in addition to occurring through low altitude overflights, physical occupation may occur due to extremely loud and frequent flights in the navigable airspace and such flights over adjacent property, where the overflights impose a peculiar burden on the property owners affected by the overflights.457 Even where an avigation easement has already been acquired, a new taking may occur if the intrusion is increased by flying substantially noisier planes or by flying at a lower altitude than specified in the first easement.
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46 facilitated by state authorizing legislation, such as Washington's Interlocal Cooperation Act.468 For example, after engaging in litigation concerning jurisdiction over airport land use and the legal requirements concerning mitigation of safety improvements,469 the Port of Anacortes and the City of Anacortes entered into an interlocal agreement concerning safety fences and tree removal, including mitigation.470 After further negotiations and input from the FAA, the Port and the City then entered into a development agreement covering a more substantial subarea plan,471 which covered fencing, Part 77 tree removal, and a landscape and wetland mitigation plan.472 Also in Washington State, the Port of Seattle and the City of SeaTac resolved a longstanding dispute of landuse authority related to the Seattle-Tacoma International Airport through an interlocal agreement.473 Under the agreement, the Port and the City both agreed to adopt mutually-agreed-upon planning, land use, and zoning provisions, as well as surface water management provisions. The parties also adopted interagency cooperation and development commitments concerning projects included in the Port's 1996 Airport Master Plan owns or controls the airport, Florida law requires the two jurisdictions to either enter into an interlocal agreement concerning airport zoning or create a joint airport board to adopt such zoning.
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