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4 that a seller disclose whether a property is within the whether the notice to an owner or a prospective buyer proximity or within a certain distance of an airport. bars any claims in connection with airport noise, nor Alaska, Nevada, and Tennessee require a seller to dis- were there any cases located that have construed the close whether a property is affected by airport noise or provision. by noise generally. At least three states, Arizona, Mary- The phrase "territory in the vicinity of a public air- land, and Virginia require the disclosure of property port" means property "that is within the traffic pattern situated within the vicinity of military airports and airspace as defined by the federal aviation admini- operations. Other than with respect to designating an stration [FAA]" and "includes property that experi- airport influence area or airport safety zone or filing an ences a day-night average sound level" [DNL] of ei- airport noise contour map in the local land records, air- ther sixty decibels or higher or sixty-five decibels or port authorities typically have no responsibility for air- higher depending on a county's population.8 For in- port disclosure statements. stance, Scottsdale, Arizona, has complied with § 28- 8486 by recording a map of the Scottsdale Airport Traf- B. Disclosure of Property Within an Airport fic Pattern Airspace "known as the 60 DNL Noise Con- Influence Area, an Airport Noise Contour Map, or tour."9 The city states that it has exceeded this mini- an Airport Safety Zone mum standard and has mapped the noise contours out to 55 decibels (dB) DNL.10 B1. Arizona Because 65 dB DNL contours may not reflect com- Arizona has several laws requiring the disclosure of pletely the effect of "single event" airport noise on airports. First, the State or a political subdivision that nearby property, Part IV.B.4(b) of the Typical Airport has established or operates an airport may designate Fair Disclosure Act Provisions developed for the Report "an airport influence area."1 An airport influence area is provides that a disclosure statement must disclose property in the vicinity of an airport that is flight paths including actual radar flight paths or tracks used by landing and departing aircraft in areas currently exposed to aircraft noise and overflight and beyond 65 dB DNL.11 (See Appendix D) The reason is that either has a day-night average sound level of sixty- that property owners may have complaints regarding five decibels or higher or is within such geographical dis- single event noise generated by aircraft using the air- tance from an existing runway that exposes the area to port that are outside 65 dB DNL contours.12 aircraft noise and overflights as determined by the air- port owner or operator.2 The state or political subdivision must "record" an 8 airport influence area in the county having territory Id. § 28-8486(C)(2)(a) and (b) (2010). 9 within the area.3 An interesting feature of the statute http://www.scottsdaleaz.gov/airport/noisesub_disclosure, is that the county record of an airport influence area is last accessed on July 25, 2011. The Web site advises that the deemed to be sufficient notice to owners or potential recorded noise disclosure maps for other Arizona airports may be viewed at the Public Airport Maps section of the Arizona purchasers of property in the airport influence area Department of Real Estate's Web site and that home buyers that a property is subject to aircraft overflights and and renters should educate themselves in advance about noise.4 issues that affect property for sale or rent. The statute does not state whether claims relating 10 http://www.scottsdaleaz.gov/airport/noisesub_disclosure, to airport noise or operations are barred by reason of last accessed on July 25, 2011. The W e b site informs visi- an owner or potential purchaser having such notice, tors that "[t]he historic 1985 and 1991 noise contour nor were any cases located construing the provision. maps as well as the projected 2005 noise contour maps may Second, Arizona requires that the state real estate be viewed on our Noise Compatibility Planning Page." department shall have and make available to the pub- 11 See Mary Ellen Eagan, Noise Programs in Areas Outside lic on request a map showing the exterior boundaries of DNL 65 dB, AAAE Airport Noise and Mitigation Symposium each territory in the vicinity of a public airport.5 A pub- (Oct. 5, 2009), available at http://www.hmmh.com/ lic airport must record the map in each county having cmsdocuments/Beyond_DNL65.pdf, last accessed on July 20, territory in the vicinity of the airport.6 The recorded 2011. The 65 dB DNL is the federally defined threshold level map must be "sufficient to notify owners and poten- at which aircraft noise begins to interfere with everyday activi- ties, such as talking on the phone or watching TV. Bradley tial purchasers of property that the property is located International Airport, 14 C.F.R. Part 150 Study, Noise Expo- in or outside of a territory in the vicinity of a public sure Map and Noise Compatibility Program, Executive Sum- airport."7 Once more, neither is there an indication mary (Oct. 27, 2003), at ES-3, available at http://www.bradleyairport.com/community/noise_docs/BDL%20 1 ARIZ. REV. STAT. ANN. § 28-8485 (2010). Exec%20Summary.pdf, last accessed on July 20, 2011. 2 12 Id. § 28-8485(A) (2010). See Discussion of Methodologies of Measuring Noise 3 Id. § 28-8485(B) (2010). Impact (Oct. 22, 2000) (noting that "[s]ome people challenge 4 the use of DNL to assess aviation noise because it is a Id. 5 measure of exposure from cumulative events over time Id. § 28-8486(A) (2010). rather than a measure of exposure from a single noise 6 Id. § 28-8486(B) (2010). event"), available at http://www.dekalbzoning.com/PDK_ 7 Id. FAAnoisediscussion.html, last accessed on July 20, 2011.
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5 B2. California county requirements applicable to transfers of real California's disclosure law prescribes a form enti- property.22 tled "Notice of Airport in Vicinity" when a property is located within an airport influence area.13 The notice B3. Hawaii must state: In Hawaii, disclosure of an airport is required when residential property is "[w]ithin the boundaries of the This property is presently located in the vicinity of an noise exposure area shown on maps prepared by the airport, within what is known as an airport influence [DOT] in accordance with [FAR] Part 150-Airport Noise area. For that reason, the property may be subject to Compatibility Planning...for any public airport."23 Sec- some of the annoyances or inconveniences associated ond, disclosure is required when residential real prop- with proximity to airport operations (for example: noise, erty lies within the boundaries of an "Air Installation vibration, or odors). Individual sensitivities to those Compatible Use Zone of any Air Force, Army, Navy, or annoyances can vary from person to person. You may Marine Corps airport as officially designated by mili- wish to consider what airport annoyances, if any, are as- tary authorities...subject to the availability of maps sociated with the property before you complete your pur- that designate" the area.24 AICUZs are discussed in chase and determine whether they are acceptable to Section V.C. of this digest. you.14 An airport influence area is defined as "the area in B4. New Jersey which current or future airport-related noise, overflight, New Jersey's Planned Real Estate Development safety, or airspace protection factors may significantly Full Disclosure Act (PREDFDA) and its Air Safety and affect land uses or necessitate restriction on those uses Zoning Act (Air Safety Act) impose disclosure require- as determined by an airport land use commission."15 If ments regarding off-site conditions. First, as a result of a Natural Hazard Disclosure Statement is required, a administrative regulations, PREDFDA requires a seller seller must determine if the property is located in an when issuing a public offering statement to disclose, airport influence area16 and provide notice.17 The air- among other conditions, a property's proximity to port influence area may be 12- to 45- sq mi depending airports or flight paths.25 Second, the Air Safety Act on the "airport runway's size, orientation, and classifi- requires a seller to notify a prospective buyer prior to cation."18 When the notice is provided in compliance executing a contract for the sale of residential property with the statute, the notice relieves the seller "or any that the property is located in an airport safety zone.26 listing or selling agent of any further duty...."19 A As observed in Nobrega v. Edison Glen Associates,27 transferor or the transferor's agent is not "liable for any New Jersey's New Residential Real Estate Off-Site error, inaccuracy, or omission of any information de- Conditions Act (Disclosure Act)28 does not affect the livered...if the error, inaccuracy, or omission was not disclosure requirements in PREDFDA or the Air Safety within the personal knowledge of the transferor" or the Act.29 However, the court held that based on legislative transferor's agent.20 intent the Disclosure Act "precludes plaintiffs from su- In California, cities and counties may establish addi- ing sellers and developers of real estate under the Con- tional or different disclosure requirements but at a sumer Fraud Act for failure to disclose off-site condi- minimum the form must include the information in the tions, provided that the sellers and developers foregoing Notice of Airport in Vicinity.21 However, in satisfy their disclosure obligations under Section 8 the absence of an airport influence area map, the dis- and 9" of the Disclosure Act.30 Pursuant to the Dis- closure of an airport within 2 mi will satisfy any city or closure Act, "[t]he furnishing of notice `shall be avail- able to the seller as a defense in any action that the seller failed to disclose any conditions which are not 13 CAL. CIV. CODE § 1353(a)(1) (West 2010). See California part of the project.'"31 disclosure statement available at http://www.dre.ca.gov/pub_ disclosures.html, last accessed on July 20, 2011. 22 14 Id. See also id. §§ 1102.6a, subds. (a) and (d)(1)-(2) (West CAL. CIV. CODE § 1102.6a (West 2010). 23 2010). See also App. 5. HAW. REV. STAT. § 508D-15(a)(2) (2010). 24 15 Id. § 1353(a)(2) (West 2010). See also id. § 1103.4(c) Id. § 508D-15(a)(3) (2010). 25 (West 2010); CAL. BUS. & PROF. CODE § 11010(b)(12)(B) Id., 167 N.J. at 535, 772 A.2d at 377 (citing N.J.S.A. (West 2010). § 45:22A-28(a); N.J.A.C. § 5:26-4.2(a)(17). 16 26 CAL. CIV. CODE §§ 1102.6 and 1103.4(c) (West 2010). Nobrega v. Edison Glen Assocs., 167 N.J. 520, 53435, 17 Id. § 1103.4(c)(1) (West 2010). 772 A.2d 368, 377 (2001) (citing N.J.S.A. § 6:1-85.2). 27 18 Matt Lilligren, When in Doubt, Point It Out: Chapter 66 167 N.J. 520, 772 A.2d 368, 377 (2001). 28 Attempts to Clarify California's Residential Real Estate Obliga- N.J.S.A. §§ 46:3C-1 to C-12. tions, 36 MCGEORGE L. REV. 941, 94243 (2005). 29 Nobrega, 167 N.J. at 532, 772 A.2d at 375 (citing N.J.S.A. 19 CAL. CIV. CODE § 1102.4(b) (2010). § 46:3C-10(d)). 20 30 Id. § 1102.4(a) (2010). Id. at 534, 772 A.2d at 376 (citing N.J.S.A. § 46:3C-8-9). 21 31 Id. §§ 1102.6a, 1103.4, and 1353 (West 2010); CAL. BUS. & Id. at 531, 772 A.2d at 374 (quoting N.J.S.A. § 46:3C- PROF. CODE § 11010 (West 2010). 10(b)).