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1、Legal Research Digest 5 AIRPORT COOPeRATIve ReseARCh PROgRAm sponsored by the Federal Aviation Administration march 2009 Subject Areas: IC Transportation Law; V Aviation TRANsPORTATION ReseARCh BOARD OF THE NATIONAL ACADEMIES reSponSIbILITy for ImpLemenTATIon And enforCemenT of AIrporT LAnd-uSe zonI
2、ng reSTrICTIonS This report was prepared under ACRP Project 11-01, “Legal Aspects of Airport Programs,” for which the Transportation Research Board (TRB) is the agency coordinating the research. The report was prepared by William v. Cheek, esq., William v. Cheek legislative and administrative person
3、nel; developers; aviation managers; and researchers. ConTenTS I. Introduction 3 II. Governmental Structures and Airport-Related Land Use 3 A. FAAs Role in Aviation Land Use (What the FAA Does and Does Not Do) 4 B. State Aviation Regulatory Agencies, Their Authority and Activities 8 C. Local Communit
4、ies and Zoning Authority 9 D. Local Authorities and Airport Noise Issues 11 E. Ordinances Directed at the Safety Issue 13 III. Local Airport Land Use Controls 15 A. Example of Procedures to Adopt a Safety Zoning Ordinance 15 IV. Prevention or Discouragement of Incompatible Airport Land Uses 15 A. Lo
5、cal Authorities Approach to Incompatible Land Uses 15 B. Comprehensive Land Use PlansMaster Plans 15 C. Performance Standards or Regulations 15 D. Subdivision Regulation; Covenants, Conditions, and Restrictions 15 responsible Senior program officer: gwen Chisholm Smith E. Changes in Subdivision Regu
6、lations 16 F. Building and Housing Codes and Police Powers 16 G. Capital Improvement and Infrastructure Planning 16 H. Tax Incentive Programs to Influence Developers Decisions 16 V. Typical Approaches to Mitigation of Airport- Incompatible Land Uses 16 A. Noise Studies and Soundproofing 16 B. Change
7、s in Airport Operating Procedures by “Friendly Persuasion” or by Ordinance 16 C. Performance Standards or Regulations 17 D. Real Estate Disclosures 17 E. Buy-Outs by Agreement or Condemnation 17 F. Changes in Airport Configurations 18 VI. Enforcement of Airport Environs Land Use 18 A. Forced Purchas
8、e or Condemnation 18 B. Inverse Condemnation and “Takings” Issues from Causby to Sisolak 18 VII. Communication of Governing Bodies to Public About Airport Land Use 21 A. Gaining Community Support for the Airport 21 B. Appearances of Public Officials at Conferences, Forums, etc. 22 C. Use of Media: P
9、ublications, Internet, and Other 22 VIII. Conclusion 22 Appendix A 23 Appendix B 52 Appendix C 57 Appendix D 62 Appendix E 64 CONTeNTs (contd) 3 RESPONSIBILITY FOR IMPLEMENTATION AND ENFORCEMENT OF AIRPORT LAND- USE ZONING RESTRICTIONS By William V. Cheek, Esq. William V. Cheek 2) medium “hub” airpo
10、rts 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
11、 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 s
12、tipulated 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 r
13、eleasing 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-
14、 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- demnati
15、on 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. City33 pe
16、rcent are city-operated. Examples in- clude Atlanta, Georgia, and Austin, Texas. 2. County15 percent are county-operated. Fort Lauderdale, Florida, and Las Vegas, Nevada, are ex- amples. 3. State7 percent are state run. Honolulu, Hawaii, and Anchorage, Alaska, are examples. 4. Port authority9 percen
17、t use a port authority. Examples include New York City, New York; Seattle, Washington; Portland, Oregon; and Oakland, Califor- nia. 5. Airport authority30 percent use an airport au- thority. Washington, D.C.s, Reagan National Airport; Dulles International Airport in Virginia; and Nashville, Tennesse
18、e, are examples. 6. Other6 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
19、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, a
20、viation 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 Admini
21、stration. 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 man
22、ager, for example, reporting directly to a city manager. A. FAAs 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 th
23、e development and operation of the Nations 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 contro
24、ls 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 airp
25、ort capital improvements and operations, the FAA is in the position to set forth regulations that impact almost every aspect of airport constructionincluding master plans, noise restrictions, and even routes of flight, all of which clearly affect land uses in airport environs. The role of the federa
26、l 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. Constitutions supremacy rule be
27、ing 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 t
28、he 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 exten
29、sion, 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 regulatin
30、g 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 my
31、riad 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 naviga
32、ble 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
33、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 governments relationship to local land use. The following language appears in the Execut
34、ive 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 tha
35、t can assist in establishing and maintaining compatible land uses around airports. Emphasis added. 8 As to land use compatibility, by the FAAs mecha- nism of providing funds and conditioning such funding on the establishment of aircraft approaches, clear zones, and height controls over properties ne
36、ar 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 prov
37、ision 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
38、authori- ties, there are notable exceptionsfor 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
39、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 creat
40、ed 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 sh
41、ould 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
42、 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
43、- 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 BurbankGlendalePasadena Airport Authority v.
44、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 Lo
45、s 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 authoritys 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.
46、 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 pre
47、pared 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 Initiatives short-term rec- ommendations to develop a land use planning informa- tion p
48、ackage 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 Nations airports. A similar version of the toolkit is being specifically designed for use by state aviatio
49、n 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 Guida