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21 â¢ In McGrath v. City of Gautier,180 a Mississippi court determined that purchasing insurance for damages exceeding a statutory cap did not waive sovereign immunity, while in Gregg v. City of Kansas City,181 a Missouri court found immunity waived to the extent of coverage under an insurance policy. â¢ Michigan statutes provide for some airport entities to defend and indemnify their employees.182 â¢ Wyoming statutes expressly provide that an airport entity is liable for damages resulting from the negligence of airport employees acting within the scope of their duties.183 â¢ Maine statutes provide that an airport entity is liable for a lack of repair on a runway.184 â¢ In Anderson v. Alberto-Culver USA, Inc.,185 a negligence action relating to a plane crash, an Illinois court found that the federal standards applicable to airfield maintenance constituted the airport entityâs standard of care.186 â¢ State efforts to address liability for noise may be preempted by federal law in many instances.187 180 794 So. 2d 983 (Miss. 2001) (purchase of insurance by a government entity covered claims in excess of the statutory cap; it did not waive sovereign immunity). 181 272 S.W.3d 353 (Mo. Ct. App. 2008) (immunity waived to extent of insurance policy coverage). 182 See MICH. COMP. LAWS ANN. Â§ 259.116 (through P.A. 2011 (except 62), of 2011 Reg. Sess.). See also Davis v. Lam- bert-St. Louis Intâl Airport, 193 S.W.3d 760 (Mo. 2006) (finding officer involved in car crash protected by official immunity while airport not shielded from vicarious liability for officerâs negligence); McMahon Helicopter Servs., Inc. v. United States, 2006 U.S. Dist. LEXIS 51819 (E.D. Mich. July 28, 2006) (an airport director does not owe a personal duty to all airport users). 183 See WYO. STAT. ANN. Â§ 1-39-107 (2010 Bud. Sess.). 184 See ME. REV. STAT. ANN. tit. 14, Â§ 8104-A (through 2009 2d Reg. Sess.). 185 740 N.E.2d 819 (Ill. App. Ct. 2001) (determining that ac- ceptance of federal and state funding mandated safety stan- dards in FAA advisory circular and established airportâs duty of reasonable care). 186 See also Glass v. North Airlines, Inc., 686 F. Supp. 2d 770 (W.D. Tenn. 2010) (facts pled against airport were suffi- cient where they asserted that airport was responsible for day to day operations of the facility, that airport employees or con- tractors were negligent in failing to provide wheelchair, and that airport failed to train employees properly about how to handle disabled passengers); Peters v. Haymarket Leasing, Inc., 835 N.E.2d 628 (Mass. App. Ct. 2005) (airportâs failure to enforce speed limits in taxi pooling area did not subject it to liability to pedestrian, and taxi driver not an independent con- tractor of airport). 187 The federal government has regulated certain actions af- fecting noise under the Airport Noise and Capacity Act of 1990, which also provides limited statutory immunity to airport pro- prietors at the federal level in connection with noise if they follow specified requirements. See also 49 U.S.C. Â§Â§ 47506, 47527 (limiting damages in certain circumstances involving traffic changes if the airport proprietor has submit- ted a Noise Exposure Map, and providing that if the federal State approaches to immunity for airport entities can differ widely from state to state and even within a state. Factors affecting immunity can include the nature of the airport entity, the nature of its specific actions, specific measures adopted under statutes and cases, and federal preemption issues. When immunity protections are available, they typically are also subject to procedural requirements that may further protect the airport entity, such as notice requirements and caps on damages. These measures can offer substantial protections for airport entities, but the laws governing an airport entityâs liability are distinct within each state, and they can raise complex issues. IV. AIRPORT LANDS AND LAND USE State statutes grant an airport entity the power to acquire and manage real property. Such powers reflect a number of state policies that address planning efforts, acquiring or disposing of property interests, zoning ef- forts, and environmental concerns. Some state policies are aimed at helping an airport obtain additional space to provide services to the public. States provide many of these powers to protect the airportâs ongoing operations as well. Many of these measures also protect the air- portâs airspace and help establish an environment around the airport that can support the impact of air- port operations. This section will review basic aspects of state legislation affecting airport lands and land use. It will then briefly consider the effect of challenges in those areas from surrounding communities. A. Planning States play a prominent role in planning airport lo- cations, and to some extent they provide for involving a variety of local government entities in airport planning processes.188 The state typically has primary responsi- government disapproves a proprietorâs proposed noise-related restrictions, it assumes subsequent liability to the extent that a taking occurs as a direct result of the disapproval); Owen v. City of Atlanta, 157 Ga. App. 354, 277 S.E. 2d 338 (1981) (de- termining that federal law did not preempt liability for nui- sance actions based on aircraft flight). 188 Federal law imposes a variety of planning requirements on airport entities, but it provides for taking local planning into account. For example, see Grant Assurance Nos. 6, 7, 8, and 29, http://www.faa.gov/airports/aip/grant_assurances/ media/airport_sponsor_assurances.pdf (obligating airport pro- prietors to make airport plans âreasonably consistentâ with the plans of authorized agencies within the state where the project is located, give âfair considerationâ of the interests of nearby communities, and conduct âreasonable consultationsâ with affected parties using the airport); 49 U.S.C.A. Â§ 40101(8) (fed- eral policy for secondary airports). Airport planning also must comply with a variety of federal requirements, such as re- quirements to maintain an Airport Layout Plan and real prop- erty map. See FAA Airport Compliance Manual, FAA Order 5190.6B, ch. 7 generally, and Â§Â§ 7-18, 7-19 (Sept. 30, 2009) (explaining various airport property obligations), available at
22 bility to coordinate airport development on a statewide basis and prepare a plan for a statewide system of air- ports.189 With respect to a given airport, however, the state may limit its planning authority or expressly im- pose planning limitations on a given airport entity. For example, Maryland law prohibits expansion at a specific airport until requirements are met for noise and high- way improvements.190 State laws typically give local government agencies planning responsibilities involving airports. They gen- erally empower metropolitan or regional planning agencies to incorporate recommendations for airports in their plans and authorize them to study airport needs.191 Local government entities, whether or not they own airports, also have this planning authority under state law, and in some instances may be authorized to meet planning requirements by using information pro- vided by a local airport.192 State empowering statutes normally give broad planning responsibilities to airport entities as well. The state may impose specific require- ments, such as obligating airport entities to adopt a 5- year capital improvement program.193 States generally also require planning coordination among local agencies, and they may obligate local gov- ernments to accommodate an airport layout plan or airport approach plan. For example, Michigan statutes obligate airport entities to share copies of their master plans with affected government units.194 Washington statutes require that preliminary subdivision plats near airports be filed with the state aeronautics agency, al- lowing that agency to become informed of potential land-use issues.195 States may establish planning crite- http://www.faa.gov/airports/resources/publications/orders/ compliance_5190_6/. However, while the federal government is involved in many of the technical aspects of determining an airportâs site and planning its development, deciding whether to pursue airport development is a decision made by a local airport proprietor and is subject to state requirements. See Hoagland v. Town of Clear Lake, Ind., 415 F.3d 693, 698 (7th Cir. 2005) (while many aspects of local aviation regulation are preempted by federal regulation, âthe issue of where a local governing body chooses to site an airport is differentâ¦the agency [FAA] leaves the decision not to allow a landing strip to the discretion of the local governmentâ and an airfield propo- nent âmust comply with local laws.â). 189 For example, see MASS. GEN. LAWS ANN. ch. 6C, Â§Â§ 30 and 39A (through 2010 Ann. Sess., ch. 392). 190 See MD. CODE ANN., TRANSP. Â§ 5-413 (through 2010 Reg. Sess.) (limit on runway expansion). 191 For example, see IOWA CODE ANN. Â§ 28I.4 (through 2010 Reg. Sess.). 192 For example, see FLA. STAT. ANN. Â§Â§ 163.3177, 163.3180, 189.428 (through 2010 2d Reg. Sess., ch. 274 & 2010 Sp. A. Sess., ch. 283) (allowing use of airportâs master plan). 193 For example, see 70 ILL. COMP. STAT. ANN. 5/13.2 (through 2010 Reg. Sess., P.A. 96-1496). 194 See MICH. COMP. LAWS ANN. Â§ 125.3203 (through P.A. 2010, No. 266, Reg. Sess.) (requiring local government to incor- porate certain plans). 195 See WASH. REV. STAT. ANN. Â§ 58.17.080 (through 2011, ch. 1 & 2). ria for privately owned airport entities as well. By in- volving state and local agencies in planning responsi- bilities, the state thus provides for a range of input to guide local airport development. States may implement additional policy objectives through their airport planning requirements. For ex- ample, Missouri state law promotes airport develop- ment within the state by withholding funding for plan- ning efforts that advocate construction outside the state.196 Among various states, measures may reflect policies such as exploring wayport airport concepts to address capacity constraints, determining the use of lands acquired under a federal noise abatement pro- gram, and determining land uses among competing public purposes. States may enforce compliance with state or federal policies by prohibiting development that fails to meet their requirements.197 States also may leave policy decisions to local planning agencies.198 Spe- cific airport planning laws help the state oversee air- port development and prioritize the stateâs policy inter- ests. B. Intermodal Concerns States commonly implement planning and develop- ment policies that promote interconnectivity between airports and forms of surface transportation. For exam- ple, Ohio state law empowers airport entities to acquire land near the airport for ingress and egress and to con- nect with highways, waterways, and railroads.199 States may extend that acquisition authority so that airport entities can acquire property for (and operate) other types of transportation facilities as well, such as bus systems, docks, and wharves.200 North Carolina state law specifically addresses the needs of cargo facilities at or near an airport in order to facilitate an interface with various forms of transportation.201 States also may permit transportation districts to facilitate intermodal planning involving airports. States may promote the development of specific forms of surface transportation in an effort to reduce surface congestion at airports and increase their utility. 196 See MO. ANN. STAT. Â§ 251.032 (through 2010 1st Ex. Sess.). 197 For example, see NEB. REV. STAT. Â§ 18-1507 (through 2010 2d Reg. Sess.). 198 For example, see Citizens for Planning Responsibility v. County of San Luis Obispo, 176 Cal. App. 4th 357, 97 Cal. Rptr. 3d 636 (Cal. App. 2d Dist. 2009) (state aeronautics act did not fully occupy field of land-use regulations near airports such as to preempt initiative measure amending countyâs gen- eral plan and zoning regulations to permit mixed use develop- ment near airport). 199 See OHIO REV. CODE ANN. Â§ 717.01 (through 2010, filed with Sec. of State Jan. 26, 2011). 200 For example, see MISS. CODE ANN. Â§ 61-3-15 (through 2010 Reg. & 1st & 2d Ex. Sess.) (development of intermodal facilities for passengers and cargo). 201 See N.C. GEN. STAT. ANN. Â§ 63A-3 (through 2010 Reg. Sess.).
23 For example, states may support the development of intercity rail services to link airports or airport access by bus feeder linkages, high speed rail, shared-ride transportation, or mass transit.202 Florida state law establishes road and rail transportation corridors con- necting airports with ports and economic regions.203 States also may pursue innovative methods for re- ducing local surface traffic. For example, laws may be aimed at reducing congestion created by airport em- ployees, such as a law promoting airport bicycle trans- portation facilities. States also can address surface con- gestion near an airport by extending airport functions out into the community, such as by establishing at a remote location an intermodal transportation terminal that includes airline ticket offices and direct transpor- tation to and from airports.204 While the federal gov- ernment addresses congestion in the airspace, the states have primary responsibility to enhance the util- ity of their airports through connections to surface transportation. C. Acquisitions and Dispositions While federal law can impact property actions, an airport entityâs fundamental power to take those actions is provided by the state. State laws empower airport entities to acquire real property by various means, such as by gift, lease, purchase, or by exercising eminent domain. Through these actions airport entities can ob- tain land, public waters, or submerged lands. State laws often authorize airport entities to acquire or con- struct supporting infrastructure as well, such as cause- ways, roads, and bridges.205 States also give most airport entities the power to exercise eminent domain if a needed property interest cannot be acquired through a voluntary purchase. Un- der eminent domain principles, private land may be taken for a public purpose and as a matter of public necessity. There must be a need for the land in the rela- tively near future, and the government entity must first negotiate in good faith to purchase the property. State empowering statutes help establish the public purpose needed for eminent domain actions. The courts will evaluate this and other aspects of a condemnation ac- tion to determine compliance with a stateâs eminent domain requirements.206 202 For example, see CAL. GOVâT CODE Â§Â§ 14036.7, 185010, 65081.1 (through 2010 Reg. Sess., 2009â2010 1stâ8th Ex. Sess.). 203 See FLA. STAT. ANN. Â§Â§ 332.006, 332.115, 339.1371 (through 2011 1st Reg. Sess., June 27, 2011). 204 See MASS. GEN. LAWS ANN. ch. 90E, Â§ 2 and 121B, Â§ 46 (through 2010 Ann. Sess., ch. 392) (bikes and remote terminal). 205 For example, see NEB. REV. STAT. Â§ 3-220 (through 2010 2d Reg. Sess.). 206 For example, see Kansas City v. Hon, 972 S.W.2d 407 (Mo. Ct. App. 1998) (under the Missouri constitution the courts determine whether a condemnation has a public purpose, and there was sufficient public purpose to condemn land for a pre- sent use in attracting industrial development and future use in airport expansion); City of Bowling Green v. Cooksey, 858 States generally provide airport entities with author- ity to exercise eminent domain for a broad range of purposes. They may acquire property for use as an air- port, for other air navigation facilities, for avigation easements and other interests in air space, for mitigat- ing hazards to the surrounding airspace, for airport protection privileges (placing navigational marking and lighting), and for abating encroachments on airport protection privileges.207 Individual state policies may vary. For example, Nebraska law gives airports author- ity to condemn areas significantly affected by airport noise.208 State condemnation laws may create expansive pow- ers favoring airports that, in effect, prioritize airport land uses. For example, states may allocate condemna- tion powers to the state aeronautics agency as well as to airport entities, thus giving the aeronautics agency an affirmative power to pursue airport land use across the state. States also may provide an airport entity with the authority to exercise eminent domain both within and without its territorial limits, which may require the consent of another jurisdiction. They may provide air- port entities from adjoining states with the authority to condemn airport lands if the adjoining state provides reciprocal rights.209 States may create favorable proce- dural requirements to facilitate airport condemnation actions as well. States also may prioritize airport land uses by pre- venting jurisdictions near the airport from condemning those lands. For example, Illinois state law limits the condemnation powers of both OâHare Airport and its surrounding jurisdictions.210 State courts also may find that a state aeronautics act limits the condemnation powers of jurisdictions surrounding an airport entity. For example, in Township of Readington v. Solberg Aviation Co.,211 a New Jersey court found that the state S.W.2d 190 (Ky. Ct. App. 1992) (no public purpose to take a fee interest in land to create an airport buffer zone when acquiring easements would serve same purpose and leave landowners in place). See also Broward County v. Ellington, 622 So. 2d 1029 (Fla. Dist. Ct. App. 1993) (discussing necessity element of emi- nent domain for taking by airport entity). 207 Due to the influence of uniform laws on state legislation, states commonly include these powers within their state aero- nautics acts or zoning provisions. See App. B: State Codes (not- ing uniform law influences). 208 See NEV. REV. STAT. ANN. Â§ 496.030 (through 2009 Reg. Sess. & 2010 Sp. Sess.) (authorizing condemnation for a variety of purposes). 209 For examples, see ALA. CODE Â§ 4-4-5 (through 2010 1st Sp. Sess.) (condemnation outside territorial limits); IND. CODE ANN. Â§ 8-22-5-2 (through 2010 2d Reg. Sess.) (condemnation by municipalities of adjoining states). 210 See 620 ILL. COMP. STAT. ANN. 65/20 and 65/21 (through 2011 Reg. Sess., P.A. 97-615, except P.A. 97-597) (regarding OâHare Airport). 211 409 N.J. Super. 282, 976 A.2d 1100 (2009) (local author- ity to regulate land use at airport not entirely preempted, but narrowly circumscribed because it must conform with state regulations; transportation commissioner had authority to
24 aeronautics act effectively preempted a municipalityâs condemnation action when it sought to condemn an airport based on a stated need for open space and to protect a species of bird.212 Federal law may have a pre- emptive effect as well if a neighboring jurisdiction tries to prevent land from being used for aeronautical pur- poses.213 Privately owned airport entities may or may not benefit from laws facilitating airport condemnation ac- tions. For example, Nebraska state law expressly pro- hibits condemnation powers from being used for the benefit of a privately owned airport, even when oper- ated for public use.214 States also may view the role of private operators more expansively if their operations support public transportation and may delegate limited eminent domain authority to them. For example, Ne- vada state law permits corporations to acquire or ap- propriate land for airports by means of a special legal proceeding that is determined by a commission, and land is deemed appropriated for public use.215 Airport entities that displace local property owners must comply with the Uniform Relocation Assistance Act.216 This federal Act establishes uniform policies aimed at fairly compensating people who are displaced by state and local government actions that are federally funded. The Act is implemented through a federally certified state program. States typically adopt compara- ble acts at the state level that may be applicable when federal funding is not present. When applicable, an air- port entity must pay to relocate eligible property own- ers in accordance with the requirements and financial limitations of these acts, including the cost of purchas- ing equivalent property and moving costs. Under the federal program, the airport entity seeks federal fund- ing to reimburse these costs. override local zoning decisions contrary to purposes of state act). 212 See also City of Washington v. Warren County, 899 S.W.2d 863 (Mo. 1995) (county asserted that area zoned by county as a flood plain could not be condemned for airport ex- pansion; when examining cityâs state-delegated condemnation power and countyâs state-authorized zoning power, court found that in this instance, the condemnation power had constitu- tional nexus and so prevailed over the zoning power, which did not); City of Euless v. Dallas/Fort Worth Intâl Airport Bd., 936 S.W.2d 699 (Tx. Ct. App. 1996) (legislature granted express jurisdiction to exercise eminent domain in specified areas to airport board, and adjoining home-rule cities could not conflict with that power). 213 See Tweed-New Haven Airport Auth. v. Town of East Haven, Conn., 582 F. Supp. 2d 261 (D. Conn. 2008) (Federal Aviation Act preempts efforts by an entity that is not the pro- prietor of an airport to limit the expansion of an airportâs aero- nautical areas; in this case, a cease and desist order issued by a Wetlands Commission was preempted when it interfered with a runway development project). 214 See NEB. REV. STAT. Â§ 3-144 (through 2010 2d Reg. Sess.). 215 See NEV. REV. STAT. ANN. Â§Â§ 495.070 to 495.210 (through 2009 Reg. Sess. & 2010 Sp. Sess.). 216 See 42 U.S.C.A. Â§ 4601 et seq. Federal and state laws affecting government prop- erty also affect how an airport entity may dispose of real property. Airport entities must comply with federal requirements to obtain a release of the federal obliga- tions that apply to a given piece of property.217 In addi- tion, state policies can create a variety of other re- quirements. Airport real property is subject to the same state formalities and restrictions imposed on other gov- ernment-owned real property, such as requirements for the sale of surplus property or former military prop- erty.218 States may impose other restrictions as well on the disposition of government real property, such as restrictions on transfer by adverse possession, sales of previously condemned property, or sales disposing of mineral rights.219 An airport entityâs real property transactions thus tend to be heavily regulated by state and local laws and are subject to federal requirements as well. D. Zoning The statutes of nearly all states address land-use measures near an airport.220 In most instances they empower local municipalities to adopt appropriate zon- ing, and they may also allow the state to pursue zoning measures if local zoning is not adequate. While the fed- eral government creates standards for limiting heights near airports to protect airspace, it does not impose local zoning measures or provide tools to enforce such measures. It relies instead on state and local govern- ments to protect the airspace surrounding an airport consistent with the federal standards.221 Airport entities that accept federal funds, however, assume a contractual obligation to implement both air- space protections and compatibility zoning for the air- 217 See 49 U.S.C.A. Â§ 47152 (Surplus Property Act require- ments); 14 C.F.R. Pt. 155 (Release of Airport Property from Surplus Property Disposal Restrictions); FAA Airport Compli- ance Manual, FAA Order 5190.6B Â§ 22.1 (Sept. 30, 2009). 218 For examples, see ARK. CODE ANN. Â§ 14-357-105 (through 2010 Fis. Sess., incl. ARK. CODE REV. COMM. to Sept. 30, 2010); KAN. STAT. ANN. Â§Â§ 3-142, 27-316 (through 2010 Reg. Sess.). 219 For example, see City of Gainesville v. Gilliland, 718 S.W.2d 553 (Mo. Ct. App. 1986) (as a general rule, a municipal- ityâs rights in real estate cannot be extinguished by adverse possession regardless of whether owned in a proprietary or governmental capacity). 220 See App. B: State Codes (noting state zoning provisions). 221 See Hoagland v. Town of Clear Lake, Ind., 415 F.3d 693, 698 (7th Cir. 2005) (âthe FAA leaves land use issues primarily to local governmentsâ); Davidson County Broad., Inc. v. Rowan County Bd. of Commârs, 186 N.C. App. 81, 649 S.E.2d 904, 911 (2007) (noting that the majority of courts have held that âfed- eral aviation law does not preempt all local or state land use regulations which may affect aviationâ and that according to the FAA, airspace protections âmust be exercised at the local and/or state level as the federal government does not have the power to protect that airspaceâ¦It is important that local com- munities recognize these assets [airspace] and provide the necessary protection both in terms of land usages and height restrictions.â)
25 port. These entities must commit to take âappropriate actionâ to protect terminal airspace (by mitigating exist- ing hazards and preventing future hazards from being established) and to adopt zoning laws that restrict land use in the vicinity of the airport to compatible uses.222 State laws empowering land use measures thus play a central role in protecting an airportâs ability to operate. AirspaceâModel Airport Zoning Ordinance. Most state laws contain an âairport zoning actâ that empow- ers local governments to restrict heights on lands sur- rounding an airport. Many of these state acts reflect a model airport zoning ordinance promulgated by the Federal Aviation Administration (FAA).223 Under Advi- sory Circular No. 150/5190-4A, A Model Zoning Ordi- nance to Limit Height of Objects Around Airports,224 the FAA offers guidelines for establishing zones and height limitations around an airport that can help prevent obstructions in the airspace. Consistent with the federal governmentâs role in this area, the model ordinance does not mandate requirements but relies on local gov- ernment to act. Under the FAAâs model ordinance, it is a public nui- sance to establish an airspace obstruction. The model states that it is in the interest of the general welfare to prevent the creation of hazards to air navigation and that doing so should be accomplished, to the extent le- gally possible, by the exercise of police power without compensation. It also provides that removing (or mark- ing) airspace obstructions constitutes a public purpose on which public funds may be expended. The model ordinance defines many aeronautical terms, and it rec- ommends establishing zones surrounding an airport that are consistent with the airspace standards con- tained in 14 C.F.R. Part 77, Subpart C, Standards for Determining Obstructions to Air Navigation or Naviga- tional Aids or Facilities.225 Under the model ordinance, no person may maintain a structure or tree in excess of the height limits appli- cable to an established zone. If there is a preexisting use in such a zone that does not conform to the height limitations, the ordinance does not require that the pre- existing nonconforming use be removed. Instead it pro- vides for the installation, operation, and maintenance of navigational marking and lighting at the expense of either the land owner or the airport entity. The ordi- nance also prohibits uses in these zones that would cre- ate electrical interference with navigational signals or radio communications between the airport and aircraft 222 See Grant Assurance Nos. 20 and 21, http://www.faa. gov/airports/aip/grant_assurances/media/airport_sponsor_ assurances.pdf. 223 See App. A: State Codes (noting state zoning provisions and model code influences). 224 See FAA Advisory Circular 150/5190-4A, A Model Zoning Ordinance to Limit Height of Objects Around Airports, Â§ 5.i (Dec. 14, 1987), http://www.faa.gov/documentLibrary/ media/advisory_circular/150-5190-4A/150_5190_4A.PDF. 225 See id. at App. 1, Preamble and Â§Â§ I to III. or that would result in visual interference or endanger an aircraft. 226 Under the model ordinance, permit applications for constructing structures within an airport zone will be granted when they are in compliance with ordinance requirements, and the ordinance includes a process for seeking a variance. It specifies, however, that no permit may allow a nonconforming use to become a greater hazard to the airspace than on the date when the regu- lations were enacted, and if a nonconforming use is abandoned (or is more than 80 percent torn down or deteriorated), a subsequent permit for that use may not deviate from the zoning regulations.227 Variance applications under the model ordinance are submitted to a Board of Adjustment (with a copy to the state aeronautics agency), and they must be accompa- nied by a determination from the FAA as to the effect of the proposal on airspace. The Board of Adjustment will grant a variance upon making a finding that the literal application of the regulations will result in unnecessary hardship and that the relief granted will not be con- trary to the public interest.228 The ordinance allows lo- cal government to require that a property owner install navigational marking or lighting when reasonable in connection with any variance or permit, which may be at the expense of the owner or the airport entity. The Board of Adjustment also hears appeals from airport zoning orders under specified procedures. Aggrieved persons may appeal a decision from the Board of Ad- justment to the courts.229 Under the model ordinance, it is a misdemeanor to violate airport zoning regulations. The ordinance pro- vides that if there is a conflict between airport zoning regulations and other regulations, the more stringent limitation prevails.230 The FAAâs model ordinance con- templates that local government will adopt and enforce its requirements using police power granted by the state for that purpose. Many states have used the model ordinance as a template for legislation at the state level.231 AirspaceâState Airport Zoning Acts. Zoning legisla- tion at the state level has an important impact on air- port protections within the state. As previously noted, state legislation can have a preemptive effect on the actions that may be taken by local government. State zoning requirements thus can establish parameters that local government must comply with, whether by imposing affirmative obligations on local government or by creating a framework that local ordinances cannot contradict. Most states have adopted airport zoning 226 See id. at App. 1, Â§Â§ IV to VI. 227 See id. at App. 1, Â§ VII. 228 The FAA recognizes that ânot all obstructions (objects whose height exceeds an obstruction surface) are a hazard to air navigation.â See id. at Â§ 3.a. 229 See id. at App. 1, Â§Â§ VII to XI. 230 See id. at App. 1, Â§Â§ XII and XIII. 231 See App. A: State Codes (noting state zoning provisions and model code influences).
26 measures at the state level, and the stateâs general right to adopt such measures has been upheld.232 When states follow the guidelines of the FAAâs model ordinance they typically adopt the purpose statements found in the model ordinance regarding the nuisance created by airspace obstructions and the need to protect the general welfare. Some also note that airport haz- ards endanger lives and property and reduce the capac- ity of an airport, thus impairing its utility and the pub- licâs investment in the facility.233 State laws commonly provide for establishing an area surrounding an airport where local governments may enact airport zoning regulations. State statutes may identify a commission that must determine those areas by examining surrounding lands and airport ap- proach plans.234 Whether the law gives this responsibil- ity to a commission or permits a municipality to take similar action, states typically identify factors that local airport zoning must take into account, such as the na- ture of the terrain and the nature of flying opera- tions.235 In general, state laws do not attempt to incor- porate the technical standards for zones that are provided in the FAAâs model ordinance. Consistent with the model ordinance, state laws usually require that airport zoning regulations be administered and en- forced by a local administrative agency using stated procedures. These procedures provide for a Board of Adjustments process and for an ultimate appeal to the courts.236 State laws allow an airport entity and local jurisdic- tions to adopt airport zoning regulations, whether as an independent regulation or by incorporating airport re- quirements into comprehensive zoning regulations. As in the model ordinance, state laws typically provide that if there is a conflict among the regulations adopted 232 See App. A: State Codes. See also Patzau v. N.J. Depât of Transp., 271 N.J. Super. 294, 638 A.2d 866 (1994) (upholding state airport zoning acts similar to FAA model provisions against facial challenges that claimed they were unconstitu- tional and took property without just compensation; also up- holding distribution of aviation fuel tax to general aviation airports against facial challenge claiming this was unconstitu- tional lending of credit or donation for benefit of private inter- ests); Schmidt v. City of Kenosha, 214 Wis. 2d 527, 571 N.W.2d 892 (Wis. 1997) (upholding constitutionality of grants to mu- nicipalities of extraterritorial zoning power to ensure the safety of aerial approaches to airports). 233 For examples, see N.C. GEN. STAT. ANN. Â§ 63-30 (through 2010, ch. 18); N.D. CENTURY CODE Â§ 2-04-02 (through 2011 Reg. Sess.). See also App. A: State Codes (noting state zoning provisions and model code influences). 234 For examples, see S.D. CODIFIED LAWS Â§ 50-10-3 (through 2011 Sp. Sess.); R.I. GEN. LAWS Â§ 1-3-4 (through 2011 Jan. Sess., ch. 407). 235 For examples, see OKLA. STAT. ANN. tit. 3, Â§ 106 (through 2011 1st Reg. Sess.); OHIO REV. CODE ANN. Â§ 4563.07 (through 2011â2012, files 1â47, 49 & 52). 236 See App. A: State Codes (noting state zoning provisions and model code influences). For examples, see NEB. REV. STAT. Â§ 3-311 (through 2011 1st Reg. Sess.); MISS. CODE ANN. Â§ 61-7- 17 (through 2011 Reg. Sess.). by various jurisdictions, the more stringent regulations prevail. Many states also address concerns for compet- ing regulations by empowering an airport entity and municipalities to create a joint zoning board that can adopt and enforce airport zoning regulations over mul- tiple jurisdictions.237 Consistent with the model ordinance and common zoning law, states usually prohibit airport zoning regu- lations from requiring changes to preexisting noncon- forming uses except in connection with new permits and variances. Airport zoning laws require landowners to obtain a permit before erecting any new structure or changing the height of any use. They provide for grant- ing permit applications in a manner consistent with the requirements of the model ordinance. Many state pro- cedures for variance applications and approvals are also generally consistent with the terms of the model ordi- nance. While most states have adopted some form of the model ordinance, some have not used this model or do not have extensive airport zoning provisions at the state level.238 States vary when addressing some provisions con- tained in the model ordinance. For example, while many state laws allow local government to condition the issuance of a permit or variance on the installation and operation of navigational marking and lighting, they differ on who must bear those expenses. Some include a provision addressing preexisting uses that have been torn down or have become deteriorated based on vary- ing percentages of decay. When included, states some- times also give local government the power to compel the owner of the destroyed use to remove it. Typically states do not adopt the model ordinanceâs requirements limiting uses that would create electrical interference with navigational signals or radio communications or that would result in visual interference or endanger aircraft.239 States may require local governments to adopt air- port zoning regulations. They may obligate municipali- ties to adopt these regulations if hazard areas exist within their boundaries and provide that, if the munici- pality does not, the state aeronautics agency may im- pose regulations (or airport entities may impose them by court order).240 Some states also make clear that lo- cal municipal zoning authority does not extend to regu- 237 See App. A: State Codes (noting state zoning provisions and model code influences). For examples, see MINN. STAT. ANN. Â§ 360.063 (through 2011 Reg. Sess.); MICH. COMP. LAWS ANN. Â§Â§ 259.443 to 259.444 (through P.A., 2011, No. 244 of 2011 Reg. Sess.). 238 See App. A: State Codes (noting state zoning provisions and model code influences). 239 See App. A: State Codes (noting state zoning provisions and model code influences). 240 For examples, see CONN. GEN. STAT. Â§ 15-91 (through 2010 Feb. Reg. Sess., June Sp. Sess. and July Sp. Sess.) (state may impose); IOWA CODE ANN. Â§ 329.4 (through 2010 Reg. Sess.) (court may establish); NEB. REV. STAT. Â§ 3-303 (through 2011 1st Reg. Sess.) (political subdivisions containing airport hazard areas must adopt).
27 lating an airportâs runway or in other specified areas, and some require municipalities to notify airport enti- ties if they enact changes in zoning regulations for sur- rounding areas.241 A state also may empower an aeronautics agency to retain zoning authority over certain areas or to approve local zoning regulations.242 State requirements also ex- empt some areas and address others more specifi- cally.243 States thus enact a range of state powers (and grants of municipal power) to provide for basic zoning functions to help protect airspace. AirspaceâTall Towers Acts. In addition to these general zoning measures, states may enact specific laws to address concerns for tall objects surrounding an air- port. These âtall towersâ regulations generally enhance the protections of local zoning measures by creating an additional step at the state level. Under these laws, a land owner must obtain a permit from the state aero- nautics agency before constructing any structure that will exceed a specific height stated in the statute or penetrate a specified imaginary surface.244 Tall towers regulations may include other require- ments as well. For example, states may mandate that electric utilities cannot construct overhead transmission lines within a specified proximity to the ends of an air- portâs runways unless federal or state authorities (or both) determine that the improvements will not consti- tute a hazard to air navigation. They also may impose maximum height limitations near an airport. Preexist- ing towers may be grandfathered under some of these laws, and height restrictions may not apply to specified facilities (normally those administered by the Federal Communications Commission).245 Compatibility Zoning. In addition to regulating the height of structures and trees near an airport, local governments have the responsibility to implement zon- ing regulations that establish compatible land uses sur- rounding an airport.246 As with height regulations, the 241 For example, see OR. REV. STAT. ANN. Â§ 836.608 (through 2010 Sp. Sess.) (limiting local authority to impose limitations on most airports). 242 For examples, see ALA. CODE Â§Â§ 23-1-412 to 23-1-415 (through 2010 1st Sp. Sess.) (requiring state permit under specified conditions) MASS. GEN. LAWS ANN. ch. 90, Â§ 40A (through 2010 Ann. Sess., ch. 392) (requiring state commission approval). 243 For example, see MO. ANN. STAT. Â§Â§ 67.1224 and 305.400 to 305.410 (2011 1st Reg. Sess, June 22, 2011) (exempting specified counties and creating specific requirements for oth- ers). 244 For example, see MICH. COMP. LAWS ANN. Â§Â§ 259.482 to 259.493 (through P.A. 2010, No. 266, Reg. Sess.). 245 For examples, see MD. CODE ANN., PUB. UTIL. Â§ 7-207 (through 2010 Reg. Sess.) (overhead transmission lines); N.H. REV. STAT. ANN. Â§Â§ 422-B:3 to 422-B:8 (through 2011 Reg. Sess., June 6, 2011) (specifying height limitations). 246 The survey at App. B: Questionnaire Responses demon- strates that airport entities are most concerned with the ac- tions of surrounding jurisdictions when those actions involve land use and environmental regulation. federal government does not mandate local require- ments; however, the FAA provides guidance regarding land use compatibility near airports under Advisory Circular 150/5020-1, Noise Control and Compatibility Planning for Airports,247 which addresses noise con- cerns in particular. Rather than provide a model ordi- nance for compatible land use, the advisory circular explains concepts applicable to airport noise, provides a table of compatible uses for specified noise levels sur- rounding an airport, and explains other methods by which an airport entity and local, state, and federal government agencies can work to reduce noise impacts. State approaches to compatibility zoning near an airport can differ. States may not dictate specific re- quirements for the types of uses permissible near an airport but instead empower local jurisdictions to make those decisions. States also offer guidance by requiring that local land-use decisions near an airport take spe- cific factors into account, such as discouraging residen- tial and noise-sensitive uses near airports and minimiz- ing the danger of potential crashes, or requiring that local ordinances consider population density and the use of buildings for airports and approaches.248 States may address specific concerns as well by prohibiting or limiting certain land uses near airports. States also may enact specific measures for land-use compatibility near military airports. For example, Ari- zona state law requires municipal plans to identify the boundaries of high noise or âaccident potential zonesâ near military airports and compatible land uses. The law obligates these municipalities to incorporate sound attenuation standards in their plans for these zones.249 Utah statutes provide that if a federal airport infringes on the use of private property, a property owner that has continuously owned the land from the time when the statute was enacted may request to exchange the property for state land outside of the affected area.250 States may expressly permit some land uses near an airport based on state policies concerning specific local conditions. For example, Minnesota state law protects existing residential neighborhoods in urban areas.251 Other state laws expressly protect uses near an airport for agriculture and animal husbandry (where airport hazards would not result), or public utilities or rail- roads, or school district use in conducting aviation pro- 247 FAA Advisory Circular 150/5020-1, Noise Control and Compatibility Planning for Airports, http://www.faa.gov/ documentLibrary/media/advisory_circular/150-5020- 1/150_5020_1.pdf. 248 For example, see COLO. REV. STAT. ANN. Â§ 24-65.1-202 (through 2010 2d Reg. Sess.) (crashes and noise sensitive ar- eas); S.C. CODE ANN. Â§ 6-29-710 (through 2010 Reg. Sess.) (population density). 249 See ARIZ. REV. STAT. ANN. Â§ 28-8481 (through 2011 1st Reg. Sess., April 28, 2011) (military zone requirements). 250 See UTAH CODE ANN. Â§ 72-10-414 (through 2010 Gen. Sess.) (land exchanges). 251 See MINN. STAT. ANN. Â§ 360.062 (through 2010 2d Sp. Sess.) (protecting built-up urban areas).
28 grams; or for use as wetlands, game, and wildlife ar- eas.252 The diverse measures that states use to address land-use compatibility near an airport reflect the com- plexities involved in making local land-use decisions that balance the public interest in aviation with the interests of property owners. All of these basic zoning laws are aimed at providing airport entities, neighboring communities, and the state with the ability to protect airport operations by address- ing the key elements essential to that protection. They control heights to protect the airspace necessary for an airportâs operations. They also provide zoning authority to control the environment surrounding an airport to promote land uses that are compatible with the noise and other effects that naturally accompany aviation. These measures serve as a primary tool for protecting airport operations. E. Environmental Concerns States sometime implement measures at and near airports to address environmental issues with a particu- lar focus on noise. A stateâs ability to act in this area may be limited, however, due to significant federal leg- islation that can preempt local actions affecting the flight of aircraft. Aircraft noise is governed to a signifi- cant degree by the Federal Airport Noise and Capacity Act of 1990,253 which establishes national noise policy and imposes specific requirements. Thus while states, local governments, and airport entities work to address aircraft noise using various methods, this federal stat- ute may have a preemptive effect on some of those local efforts. When states enact measures to address noise that are consistent with federal policies, they seek to address communities surrounding specific airports. For exam- ple, California law provides that a specific airport entity may not increase the size of noise impacted areas, and 252 For examples, see OHIO REV. CODE ANN. Â§ 4563.10 (through 2010, filed with Sec. of State Jan. 26, 2011) (allowing farming, dairy, railroad uses); IOWA CODE ANN. Â§ 297.7 (through 2010 Reg. Sess.) (school programs); ALASKA STAT. Â§Â§ 16.20.034, 16.20.600, 16.20.630 (through 2010 Reg. Sess.) (wildlife refuge). 253 See 49 U.S.C. Â§ 47523 et seq. See also City of Naples Air- port Auth., 366 U.S. App. D.C. 161, 409 F.3d 431 (2005) (final in a series of actions that ultimately upheld an airport entityâs ability to limit certain aircraft at its airport when acting in compliance with the provisions of the Airport Noise and Capac- ity Act of 1990); Am. Airlines Inc. v. Depât of Transp., 202 F.3d 788 (5th Cir. 2000) (one of a number of cases commenting on the scope of an airport proprietorâs rights to affect aircraft flight); City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S. Ct. 1854, 36 L. Ed. 2d 547 (1973) (establishing that airport proprietors have greater authority to act to ad- dress aircraft noise than government entities that are not air- port proprietors); 49 U.S.C. Â§Â§ 47503 and 47504 (the Airport Safety and Noise Abatement Act of 1979 promoting compatible land-use planning as a means of addressing aircraft noise con- cerns). the airport must conduct noise monitoring.254 Maryland law establishes noise zones in local communities near certain airports and requires permits for new or altered uses generating noise within the zone.255 In Massachu- setts a specific airport entity must notify the surround- ing public of potential changes in airport noise by ad- vertising any request for a significant alteration in flight patterns.256 An airport in Nevada is obligated to provide communities with a method for reporting air- craft noise incidents.257 In several instances states also have made a policy decision to provide for specific noise mitigation meas- ures in a given community. For example, in a Minne- sota community the airport entity must budget funding for noise mitigation measures based on a Part 150 noise compatibility program.258 Missouri state law requires airport entities to purchase areas surrounding an air- port where noise levels have a rating of 75 Ldn or greater.259 State law may also protect airport entities against liability from noise. For example, Alaska state law protects private airports against noise complaints by limiting nuisance actions based on noise for ordinary operations at the airport and by preventing local mu- nicipalities from regulating airport noise.260 In addition to regulatory efforts addressing noise, airport entities are subject to a variety of other state and federal environmental laws. Some of these laws apply generally to property owners and types of activi- ties. For example, airport entities, like all property owners, have responsibilities under federal environ- mental laws such as the Clean Air Act and Clean Water Act.261 They also have responsibilities under general state laws, such as requirements for lead abatement and asbestos removal, coastal act requirements for air- ports in affected areas, and recycling program require- ments. This study does not address these laws of gen- eral applicability, even though they represent 254 See CAL. GOVâT CODE Â§ 6546.1 (through 2010 Reg. Sess., 2009â2010 1stâ8th Ex. Sess.) (noise zones). 255 See MD. CODE ANN., TRANSP. Â§ 5-810 (through 2010 Reg. Sess.) (noise zones). 256 See MASS. GEN. LAWS ANN. ch. 91, App., Â§ 1-3A (through 2010 Ann. Sess., ch. 392) (advertising altered flight patterns). 257 See NEV. REV. STAT. ANN. Â§ 244.418 (through 2009 Reg. Sess. & 2010 Sp. Sess.) (requiring entity establish toll free phone number for reporting). 258 See MINN. STAT. ANN. Â§ 473.661 (through 2010 2d Sp. Sess.) (mitigating areas subject to a 14 C.F.R. Pt. 150 noise study). 259 See MO. ANN. STAT. Â§ 305.630 (through 2010 1st Ex. Sess.) (purchases in 75 Ldn areas). âLdnâ stands for âaverage day-night sound level,â and it is the Federal Aviation Admini- strationâs standard metric for determining the cumulative ex- posure of individuals to noise. See also Noise Control and Com- patibility Planning for Airports, Federal Aviation Administration AC 150/5020-1 (Aug. 5, 1983). 260 See ALASKA STAT. Â§Â§ 34.75.010 to 34.75.030 (through 2010 Reg. Sess.) (some conditions apply). 261 See 42 U.S.C.A. Â§ 7401 et seq. and 33 U.S.C.A. Â§ 1251 et seq.
29 significant concerns for airport entities. The policies that these laws express do not differ significantly whether they are being applied at an airport or at an- other location. States may regulate a variety of other specific con- cerns, however, for the environment surrounding air- ports. For example, in various states, laws regulate emissions from airport vehicles or shuttles providing transportation to airports, require air quality monitor- ing in the vicinity of an airport, or restrain some airport activities during air pollution episodes.262 States may address other issues as well, such as how small wind energy systems can be operated near airports.263 States generally exempt airport entities from some environmental requirements. For example, normally light pollution requirements do not apply to airport navigational lighting systems.264 Other exemptions may apply as well in connection with specific airport opera- tions, reflecting policy decisions about the importance of airport operations despite environmental policies.265 F. Summary of Challenges to Airport Land Use State statutes empower an airport entityâs planning actions, property acquisitions, zoning, and environ- mental measures in an effort to protect its operations, but these measures can face a number of challenges. Landowners near an airport sometimes claim that these protective regulations have the effect of taking their property rights. At times residents also challenge gov- ernmentâs authority to impose these regulations or its ability to acquire airspace easements and other protec- tive rights. Residents near airports also have raised claims that the environmental effects of flight have cre- ated a harmful nuisance. These challenges can have the effect of undermining the state empowerment provi- sions that are meant to protect an airport. Landowners who believe that airport zoning regula- tions have taken their property rights may pursue an âinverse condemnationâ claim against the entity that enacted the regulations. The U.S. Supreme Court estab- 262 For example, see R.I. GEN. LAWS Â§ 1-7-1 (through 2010 Jan. Sess., ch. 320) (air quality monitoring program). 263 For example, see N.H. REV. STAT. ANN. Â§ 674:64 (through 2011 Reg. Sess., June 6, 2011) (small wind energy systems). 264 For example, see N.M. STAT. ANN. Â§ 74-12-7 (through 2011 1st Reg. Sess.) (exempting airport safety lighting from Night Sky Protection Act). 265 Environmental measures at airports also can give rise to noncompliance actions and liability claims. Liability for noise is discussed in the following section, and environmental regu- lations may give rise to other claims as well. For example, in United States ex rel. Nguyen v. City of Cleveland, Ohio, 2005 U.S. Dist. LEXIS 22103, 35 ELR 20200 (N.D. Ohio Sept. 30, 2005), the relator (Nguyen) brought a qui tam action under the False Claims Act, 31 U.S.C. Â§ 3729 et seq., against 70 airports across the country alleging that their deicing operations vio- lated the Clean Air Act and that as a result, these airports had not made accurate certifications in connection with their fed- eral grant assurances (which require that airports be in com- pliance with all applicable environmental laws). lished a cause of action for inverse condemnation based on use of the airspace in United States v. Causby.266 In that case, the U.S. Supreme Court considered whether by increasing federal use at an airport, the government had taken a property interest over adjacent land. The Court established that â[f]lights over private land are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the en- joyment and use of the land.â267 Thus the law presumes a taking has not occurred unless specific circumstances can be proven. In Causby, the federal government had abruptly commenced wartime training missions over property adjacent to a runway and had essentially destroyed the value of a residentâs home and poultry business. The Court found that the federal government was liable for a taking in that fact setting, finding that it had con- tinuously invaded the superadjacent airspace in a man- ner so immediate and direct that this use subtracted from the property ownerâs full enjoyment and exploita- tion of the property. The Court later applied these prin- ciples to a stateâs use of the airspace as well.268 The federal government, however, has exclusive sov- ereignty of the airspace where the public has a right of transit.269 After Causby, the FAA declared by regulation altitudes where flight may occur and that constitute navigable airspace that is a part of the public domain. It stated that except when necessary for takeoff or land- ing, minimum altitudes for flight are 500 ft over non- congested areas and 1,000 ft over congested areas.270 The federal courts then determined that there is a pre- sumption of nontaking for flights occurring within the navigable airspace. That presumption can only be over- come by proof of specific circumstances that destroy or substantially impair the property.271 Most federal cases only determine that a taking has occurred when air- craft are physically present in the âsuperjacent air- spaceâ (the airspace that the owner reasonably occupies for his own use).272 Federal cases involving only noise, or involving only flight in the navigable airspace, have rarely resulted in a taking. When inverse condemnation claims are filed in state court, the states often look to the standards established 266 328 U.S. 256, 66 S. Ct. 1062, 90 L. Ed. 1206 (1946). 267 Id. at 266. 268 Griggs v. Allegheny Co., 369 U.S. 84, 82 S. Ct. 531, 7 L. Ed. 2d 585 (1962) (permitting assertion of claim for inverse condemnation against state). 269 States commonly assert sovereignty in airspace where it has not been assumed by the United States. 270 See 49 U.S.C. Â§ 40103; 14 C.F.R. Â§ 91.119. 271 See Aaron v. United States, 160 Ct. Cl. 295, 311 F.2d 798 (1963) (establishing presumption); Stephens v. United States, 11 Cl. Ct. 352 (Cl. Ct. 1986) (determining presumption applied; property owners failed to establish that noise or character of overflights in navigable airspace decreased value of their land). 272 See, e.g., Branning v. United States, 228 Ct. Cl. 240, 654 F.2d 88 (1981) (the great weight of federal authority supports this conclusion).
30 in federal cases to determine whether a taking involv- ing airspace has occurred. Those federal standards di- rectly address airspace issues and essentially presume that no taking has occurred unless the circumstances of the case establish a substantial impairment or destruc- tion of the property. State courts also may consider the general standards established under federal law for âregulatory takingsâ claims, under which courts first determine whether government was regulating in pur- suit of a valid public purpose, and then examine the regulationâs economic impact on the specific claimant and the extent to which it interferes with reasonable, investment-backed expectations in the property.273 For example, in Biddle v. BAA Indianapolis, LLC,274 the Indiana Supreme Court considered an inverse con- demnation claim involving airspace and noted that the federal standards were consistent with the analysis used under the law of the state. A regulatory taking under Indiana law required a showing of âspecial in- juryâ peculiar to an individualâs real estate that went beyond mere inconvenience. After considering the fed- eral standards, the court adopted them as the more precise test to measure the degree of harm that may be involved in airspace claims and in order to provide for more consistent decisions.275 Approaches to inverse condemnation, however, have varied from the general approach. For example, in McCarran Intâl Airport v. Sisolak,276 the Nevada Su- preme Court has determined that the Nevada Constitu- tion protects a property interest in the âuseableâ air- space of the subadjacent land to a greater extent than under the U.S. Constitution. It further found that Ne- vada statutes create a public right of flight and protect an ownership interest in the usable portions of airspace above an ownerâs property up to 500 ft. The court found that ordinary zoning actions will not give rise to a taking of airspace in Nevada. Under Ne- vada law, however, an ordinance limiting heights for the passage of aircraft can result in a permanent physi- cal invasion of airspace that otherwise could have been used. To the extent a court determines that this occurs, such an ordinance excludes the landowner from that area and effects a per se, âcategoricalâ taking, a narrow type of taking in which a regulation creates a perma- nent physical exclusion.277 Thus in Nevada, excluding 273 See Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 125 S. Ct. 2074, 161 L. Ed. 2d 876 (2005); Lucas v. S.C. Coastal Coun- cil, 505 U.S. 1003, 112 S. Ct. 2886, 120 L. Ed. 2d 798 (1992); Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978) (establishing regulatory taking action if regulation unfairly singles out a property owner by depriving owner of economic use of the property in order to bear a burden that should be borne by the public as a whole). 274 860 N.E.2d 570 (Ind. 2007). 275 Id. at 580 (adoption of federal analysis). 276 122 Nev. 645, 137 P.3d 1110 (2006). 277 Id. at 666 (also determining that ability to obtain a vari- ance was only material to amount of damages); See also Hsu v. an owner from airspace that otherwise could have been used may result in an inverse condemnation action to compensate for the specific lost use. In DeCook v. Rochester Intâl Airport Joint Zoning Board,278 the Minnesota Supreme Court has determined that the Minnesota Constitution also contains more extensive protections for airspace than the U.S. Consti- tution. That court drew a distinction between govern- ment regulations that were âarbitrationâ regulations (or comprehensive land-use plans that provided reciprocal benefits and burdens to all landowners) and âenter- priseâ regulations (or regulations designed to benefit a specific public or governmental enterprise). It deter- mined that airport zoning measures were âenterpriseâ regulations, and that such regulations require paying compensation to landowners if they cause a substantial and measurable decline in market value. Under this ruling, the court determined that a tak- ing will only occur if the diminution in a propertyâs market value is found to be âsubstantial.â The court noted that whether a diminution in value has occurred, and its extent, are questions of fact, but whether or not a diminution is âsubstantialâ is a question of law for the court.279 Thus an initial trial on valuation may be nec- essary to establish whether or not a taking has oc- curred. In many instances, courts reject local efforts to erode the regulations that protect airports. For example, resi- dents may raise a challenge to airport regulations by questioning whether a local zoning ordinance is valid, meaning whether state statutes adequately empower an airport entity or other entity to adopt the ordinance. An ordinance that fails to comply with state empower- ing statutes is invalid. In general, however, courts broadly interpret a general statute authorizing airport zoning actions to support a wide range of local regula- tion.280 Landowners also have challenged airport zoning or- dinances as being âvoid for vagueness.â Under this claim, landowners may assert that an ordinanceâs height and land-use restrictions are not sufficiently detailed to provide adequate notice of its requirements and guard against arbitrary enforcement. Courts con- struing lawful ordinances, however, generally defer to the actions taken by legislative bodies as long as those actions are not arbitrary and capricious. For example, a Kansas court determined that where an ordinance did County of Clark, 123 Nev. 625, 173 P.3d 724 (2007) (further clarifying concepts from McCarran Intâl Airport v. Sisolak). 278 796 N.W.2d 299 (Minn. 2011) 279 Id. at 307 (determining that amount of diminution estab- lished by jury, $170,000, qualified as substantial and thus a taking had occurred). 280 See North Props. v. Outagamie County, 223 Wis. 2d 483, 589 N.W.2d 683 (1998) (ordinance restricted housing density in airport overlay district to no more than one residence per acre; court determined from plain language of statute that ordinance was authorized under state law, and also upheld ordinance against equal protection challenge).
31 not include precise height restrictions, but provided a means to determine them and a means to further re- view them, the airport zoning ordinance was not void for vagueness.281 Challenges to airport actions may also focus on an airport entityâs powers to acquire property interests. Airport entities typically may purchase real property to expand, control certain locations affected by noise, or where airspace obstructions or other incompatible uses have been established.282 States may also empower air- port entities to establish an airport district on lands near the airport in which the entity can acquire ease- ments for development rights and require that the land be used for agricultural or other specified purposes.283 Airport entities and local government may acquire air rights and avigation easements as well, which normally convey rights to the airport entity to permit flight, air- craft noise, and other effects. Since these rights encum- ber title to the property, avigation easements also pro- vide notice of the nature of the property to future purchasers.284 Avigation easement rights may give rise to a number of challenges. For example, in McCarran, the court found that where avigation easements were conveyed as a condition of obtaining a building permit, they were overly broad (by simply permitting overflights without specific height limitations) and constituted an unconsti- tutional âexactionâ under standards established by the U.S. Supreme Court. McCarran focused primarily on a height limitation ordinance, however, and in that con- text the court determined that the broadly drafted easement would not provide a defense to an inverse condemnation claim. When petitioning to the U.S. Su- preme Court, the airport entity noted that the avigation easement had never been found to violate the U.S. Su- 281 See Kimberlin v. City of Topeka, 238 Kan. 299, 710 P.2d 682 (Kan. 1985) citing United States v. Causby, 328 U.S. 256, 66 S. Ct. 1062, 90 L. Ed. 1206 (1946) and Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (finding ordinance definition of âairport hazardâ not unconstitutionally vague because specific requirements could be determined by officials with expertise and were subject to subsequent review). 282 State laws also generally give airport entities authority to seek an injunction to address airspace obstructions. 283 For example, see MD. CODE ANN., TRANSP. Â§ 5-4A-01 (through 2010 Reg. Sess.) (power to establish airport district rights); N.J. STAT. ANN. Â§ 6:1-95 (through L.2010 c. 118, 121, 123 & J.R. No. 6) (airport entity acquiring such development rights obligated to covenant that the airport will remain an unrestricted, public-use airport). 284 See Biddle v. BAA Indianapolis, LLC, 860 N.E.2d 570 (Ind. 2007) (purchasers with notice of airport noise bought property at reduced price that took that fact into account and could not demonstrate interference with distinct investment- backed expectations). Statutes in a number of states also ad- dress concerns for notice to property owners by imposing a duty on a real property seller to disclose the existence of a nearby airport or by requiring such a disclosure in connection with subdivision offerings. preme Courtâs standards regarding unconstitutional exactions.285 Airport entities have at times asserted a right to ob- tain avigation easement rights by prescription, a claim that the airport entity has acquired an easement due to its use of longstanding flight patterns over a specified area. Courts determine whether a prescriptive ease- ment exists based on the laws of each state. In general, however, to acquire a prescriptive right, the airport entity must show that it made open and notorious use of the property in a manner adverse to the landowner for a continuous and uninterrupted number of years (as established by statute). Some courts have recognized prescriptive avigation easements in favor of airport en- tities, but in general airport entities have found it diffi- cult to establish easements by prescription in support of their flight paths.286 State statutes also frequently authorize airport enti- ties and other government entities to acquire airport protection privileges, such as rights to cut trees or mark airspace obstructions in areas surrounding the airport. States may expressly provide that encroachments on airport protection privileges are unlawful and consti- tute a public nuisance and authorize airport entities to enter private lands to remove encroachments without liability.287 Some airport entities also have asserted that prescriptive easements rights allow them to enter lands and cut trees that create an obstacle. These assertions have again been met with mixed results in the courts.288 285 See McCarran Intâl Airport v. Sisolak, 122 Nev. 645, 137 P.3d 1110 (2006), citing Nollan v. Cal. Coastal Commân, 483 U.S. 825, 832, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987) (arguing in a subsequent petition to the U.S. Supreme Court that ease- ments allowing passage of aircraft were never found to violate the nexus and proportionality requirements of Nollan v. Cal. Coastal Commân and Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 S.E.2d 304 (1994)). See also Jay M. Zitter, Annotation, Zoning Regulations Limiting Use of Property near Airport as Taking of Property, 18 A.L.R. 4th 542 Â§ 3[a] cum. supp. (orig. pub. 1982). 286 See Baker v. Burbank-Glendale-Pasadena Airport Auth., 220 Cal. App. 3d 1602, 270 Cal. Rptr. 337 (1990) (under facts of this case, recognizing airport entity had acquired an avigation easement by prescription). See also McCarran Intâl Airport v. Sisolak, 122 Nev. 645, 137 P.3d 1110 (Nev. 2006) (under facts of this case involving an overflight easement without height restrictions, airport entity could not properly require avigation easement as a condition to development without compensa- tion). 287 For examples, see COLO. REV. STAT. ANN. Â§ 41-4-109 (through 2011 1st Reg. Sess.); WIS. STAT. ANN. Â§ 114.135 (through 2009 Act 406, pub. June 2, 2010) (also imposing 6- month statute of limitations). 288 For example, see County of Chester v. Commâr of Transp., 9 F.3d 242 (2d Cir. 1993) (facts did not establish pre- scriptive avigation easement under Connecticut law to cut trees on neighboring land); Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 881 A.2d 937 (2005) (under facts of case, airport entity had established a prescriptive easement to enter land and cut trees to protect airport approaches).