Airport Governance and Ownership (2009)

Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

58 APPENDIX C. INDEX OF FEDERAL AND STATE CASE LAW ON AIRPORT GOVERNANCE A & E Parking v. Detroit Metro. Wayne County Airport Auth., 271 Mich. App. 641, 723 N.W.2d 223 (2006) (holding that commercial access fees were legal taxes and were not in violation of the airport authority’s own regulations). In re Advisory Opinion to the Governor (R.I. Airport Corp.), 627 A.2d 1246 (R.I. 1993) (holding the DOT had authority to lease and transfer airport property to the airport authority, and to delegate operational, manage- rial, and regulatory power to the airport authority). Aircraft Owners & Pilots Ass’n v. Hinson, 102 F.3d 1421 (7th Cir. 1996) (finding that federal law did not re- quire the FAA to force the city to acquire the leased airport property and continue operation of Miegs Field). Air Transport Ass’n of Am. v. U.S. Dept. of Transp. (“DOT”), 119 F.3d 38, 326 U.S. App. 239 (D.C. Cir. 1997, amended by 129 F.3d 625 (D.C. Cir. 1997), vacating in part FAA Policy Regarding Airport Rates and Charges, 61 Fed. Reg. 31,994 (1996). Am. Airlines v. DOT., 202 F.3d 788 (5th Cir. 2000) (holding the DOT was reasonable in concluding that the Airline Deregulation Act preempted a city ordinance restricting airline passenger service routes because the restrictions did not fall within the city’s proprietary powers, and that requiring commuter planes to stop in the state when providing through service did not violate the prohibition on interstate service from the airport). Anderson v. Jackson Mun. Airport Auth., 419 So. 2d 1010 (Miss. 1982) (finding airport authority did not have the same immunity as counties and cities for the operation of an airport, by legislative design). Aviation Servs., Inc. v. Bd. of Adjustment of the Twp. of Hanover, 20 N.J. 275, 119 A.2d 761 (1956) (finding township's zoning ordinance inapplicable to the airport, even though municipality's airport was located within the boundaries of the township). Bailey v. Evansville-Vanderburgh Airport Auth. Dist., 240 Ind. 401, 166 N.E.2d 520 (1960) (holding that stat- ute authorizing creation of airport authority was not a local or special act merely because it only applied to one city at the time of its enactment, that creation of airport authority was not an unconstitutional delegation of power, and that city need not include debts of airport authority when determining whether it has exceeded the municipal debt limitation). Berry v. Milliken, 234 S.C. 518, 109 S.E.2d 354 (1959) (determining that legislature could create a special purpose district for the purpose of establishing and maintaining a public airport). Biddle v. BAA Indianapolis, L.L.C., 860 N.E.2d 570 (Ind. 2007) (finding that airport authority’s promises, made at public meeting to airport neighbors, were enforceable against the authority, but were narrowly tailored to the operation of the authority’s land use programs and therefore did not apply to the settlement of any future litigation). Birkett v. City of Chicago, 202 Ill. 2d 36, 779 N.E.2d 875 (Ill. 2002) (holding that city’s planned airport termi- nal and ground transportation improvements did not require Illinois DOT approval, where improvements would not materially alter runways or interfere with aircraft approach). Bd. of County Comm’rs v. Fixed Base Operators, Inc., 939 P.2d 464 (Colo. Ct. App. 1997) (discussing county’s exercise of its reserved right to further develop the commercial passenger operations and airport facilities as not inconsistent with its lease agreement with commercial airport terminal operator). British Airways Bd. v. Port Auth. of N.Y. & N.J., 558 F.2d 75 (2d Cir. 1977) (recognizing an airport proprie- tor’s authority under the “proprietor’s exception” to establish reasonable restrictions on the operation of particu- lar types of aircraft, in the interest of reducing noise).

59 Burbank-Glendale-Pasadena Airport Auth. v. City of Burbank, 136 F.3d 1360 (9th Cir. 1998), cert. denied, 525 U.S. 873 (1998) (holding that airport authority, as political subdivision of State of California, lacked standing under federal law to challenge constitutionality of state statute). Burbank-Glendale-Pasadena Airport Auth. v. Hensler, 83 Cal. App. 4th 556, 99 Cal. Rptr. 2d 729 (2000) (hold- ing that cities could delegate their eminent domain powers to airport authority, in order for authority to expand airport). Burchfiel v. Gatlinburg Airport Auth., No. E2005-02023-COA-R3-6V, 2006 Tenn. App. LEXIS 747, 2006 WL 3421282 (Nov. 28, 2006) (finding that airport authority was not immune from nuisance suit where the claimants sought injunctive relief instead of damages). Burnham v. Mayor & Aldermen of Beverly, 309 Mass. 388, 35 N.E.2d 242 (1941) (holding that statutes author- izing the expenditure of municipal funds for the establishment of airports were valid as legislative sanctions of such activity and as serving a public purpose, and therefore city’s acquisition of property for airport was a proper exercise of eminent domain). Capital Region Airport Auth. v. Charter Township of DeWitt, 236 Mich. App. 576, 601 N.W.2d 141 (1999) (finding airport authority exempt from local land use regulation for aeronautical uses, but not for authority’s proposed development of airport lands for nonaeronautical uses). Christensen v. Carson, 533 N.W.2d 712 (S.D. 1995), (regarding a citizen petition to delay activities related to the acquisition, establishment, and construction of a new airport facility). City of Burbank v. Burbank-Glendale-Pasadena Airport Auth., 113 Cal. App. 4th 465, 6 Cal. Rptr. 3d 367 (2003) (finding invalid a voter-approved initiative imposing numerous restrictions and conditions on airport development because it addressed a matter of statewide, instead of local, concern, and because it exclusively delegated power over airport expansion to city or county boards). City of Burbank v. Burbank-Glendale-Pasadena Airport Auth., 72 Cal. App. 4th 366, 85 Cal. Rptr. 2d 28 (1999) (finding invalid a voter-approved initiative imposing numerous restrictions and conditions on airport development). City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 93 S. Ct. 1854, 36 L. Ed. 2d 547 (1973) (holding that a local government that is not the airport proprietor is expressly preempted from restricting aircraft operations through the exercise of its police power). City of Chicago v. Vill. of Elk Grove, 354 Ill. App. 3d 423, 820 N.E.2d 1158 (2004) (holding that village ordi- nance was invalid with regards to its regulation on the disconnection of property for airport use). City of Dallas v. Sw. Airlines Co., 371 F. Supp. 1015 (D.C. Tex. 1973) (finding invalid the exclusion and trans- fer of intrastate carrier from city airport). City of Geneva v. Du Page Airport Auth., 193 Ill. App. 3d 613, 550 N.E.2d 261 (1990) (holding that special leg- islative treatment of one of four reliever airports did not violate equal protection and that runway extension project did not require approval from village where land was located entirely within the county). City of Heath v. Licking County Reg. Airport Auth., 16 Ohio Misc. 69, 237 N.E.2d 173 (1967) (finding city zon- ing ordinance regarding commercial aviation fields did not prevent county regional airport authority from enlarging airport within city boundaries). City of Irving v. Dallas/Fort Worth Int’l Airport Bd., 894 S.W.2d 456 (Tex. App. 1995) (holding the legislature was not irrational in concluding that jointly-operated airports are regional in nature and thus more susceptible to local conflicts). City of Reno v. County of Washoe, 94 Nev. 327, 580 P.2d 460 (1978) (holding that legislative act transferring ownership and administration of airport to county airport authority, instead of to city, was not an unconstitu- tional taking of property).

60 In re City of Rochester, 530 N.E.2d 202, 72 N.Y.2d 338 (1988) (holding, as a matter of public interest, that air- port expansion with accessory uses was not subject to city site plan approval requirements when county owned and operated the airport). City of St. Louis v. City of Bridgeton, 705 S.W.2d 524 (Mo. Ct. App. E.D. 1985) (finding that parking lot, owned and operated by airport owner in connection with international airport but located within neighboring municipality, was exempt from local zoning regulations because it served a statewide public purpose). City of Wichita v. Clapp, 263 P.12 (Kan. 1928) (determining that airport was legitimate use of public park). City of York v. York County Bd. of Equalization, 266 Neb. 297, 664 N.W.2d 445 (2003) (holding that city’s lease of airport land to agricultural user was incidental to the land’s purpose as a buffer zone for the airport, and therefore leased property was exempt from taxation). Clayton County Airport Auth. v. State, 265 Ga. 24, 453 S.E.2d 8 (1995) (finding that county could pledge its airport revenue to the airport authority as part of an intergovernmental contract for consideration of payment of the airport bonds). Coleman v. Windham Aviation, Inc., No. KC 2004-0985, 2006 R. I. Super. LEXIS 143, 2006 WL 3004071 (R.I. Super. Ct. Oct. 19, 2006) (holding that a corporate subsidiary of the port authority was a state agency, and its power to “sue and be sued” did not waive the public duty doctrine or place the corporation outside the state Tort Claims Act, but that the corporation was not entitled to immunity under the public duty doctrine nor subject to the tort damages cap because its operation of the airport was proprietary and not governmental). Commonwealth v. Susquehanna Reg’l Airport Auth., 423 F. Supp. 2d 472 (M.D. Pa. 2006) (holding that airport authority could exercise eminent domain powers, even when such exercise may have anticompetitive effects, and further that airport authority was immune from federal antitrust laws under the state action doctrine). Concordia-Arrow Flying Serv. Corp. v. City of Concordia, 131 Kan. 247, 289 P. 955 (1930) (holding that the city lacked authority to sublet the airport authority for purely managerial purpose). Du Page Aviation Corp. v. Du Page Aviation Auth., 229 Ill. App. 3d 793, 594 N.E.2d 1334, 1339–40 (1992) (holding that municipal airport authority was immune from antitrust liability action). Du Page County Airport Auth. v. Dep’t of Revenue, 358 Ill. App. 3d 476, 831 N.E.2d 30 (2005) (holding that airport properties leased to third parties for proprietary purposes, unrelated to purpose of airport authority, were not exempt from taxation). Dysart v. St. Louis, 321 Mo. 514, 11 S.W.2d 1045 (1928) (holding that airport was legitimate purpose for use of bonding and taxing authority, where statute authorized municipalities to establish airports). Falco Lime, Inc. v. Mayor & Aldermen of Vicksburg, 836 So. 2d 711 (Miss. 2002) (holding that city airport owner could close airport when it had not previously dedicated the land solely for public airport use, and that city could enter into a joint operating agreement without forming a separate airport authority). Faux-Burhans v. County Comm’rs of Frederick County, 674 F. Supp. 1172 (D. Md. 1987) (holding that federal law did not preempt application of county zoning ordinances regarding operation of private airfield, and did not amount to an unconstitutional taking of property requiring just compensation). Fed. Firefighters Ass’n, Local 1 v. United States (“Fed. Firefighters Ass’n I”), 723 F. Supp. 821 (D.D.C. 1989) (finding that lease to transfer airport operation from the FAA to the local airport authority included a continua- tion of the rights and restrictions of the existing collective bargaining agreements). Fed. Firefighters Ass’n, Local 1 v. United States (“Fed. Firefighters Ass’n II”), 723 F. Supp. 825 (D.D.C. 1989), (finding that, following transfer of airport operations from the FAA to airport authority, terms of transfer re- quired airport authority to provide comparable terms in its promulgated labor code to the one that existed prior to the transfer of operation).

61 Fine Airport Parking, Inc. v. City of Tulsa, 2003 OK 27, 71 P.3d 5, 12 (Okla. 2003) (holding that municipality was immune from antitrust action regarding its operation of an airport, even though it engaged in certain anti- competitive behaviors). Gaines v. Huntsville-Madison County Airport Auth., 581 So. 2d 444 (Ala. 1991) (holding that statute granting sovereign immunity against tort actions to only larger, but not smaller, airport authorities violated equal pro- tection). Gen. Aviation, Inc. v. Capital Reg. Airport Auth., 224 Mich. App. 710, 569 N.W.2d 883, 884 (1997) (finding airport authority was immune from tort action because it performed a governmental, rather than a proprietary, function through its operation of an airport). Gibbs v. Gordon¸138 Fla. 312, 189 So. 437 (1939) (discussing assumption that airports serve public, rather than private, purposes). Goswick v. City of Durham, 211 N.C. 687, 191 S.E. 728 (1937) (holding that city could use taxpayer funds to purchase and maintain land for municipal airport without prior voter approval). Gray v. Virginia Sec’y of Transp., 276 Va. 93, 662 S.E.2d 66 (2008) (finding the commonwealth could delegate to airport commission the authority to supervise a public airport toll road, where commonwealth had waived its sovereign immunity through certain self-executing constitutional provisions). Greening v. Bartholf, 388 Ill. 445, 58 N.E.2d 172 (1944) (discussing assumption that airports serve public, rather than private, purposes, and holding that municipality may confer certain powers upon airport authority, such as the powers to assess and collect taxes). Hanover Twp. v. Town of Morrison, 4 N.J. Super. 22, 66 A.2d 187 (1979) (upholding municipality’s right to es- tablish airport outside its boundaries and holding that airport, by serving a public purpose, is not subject to taxation). Hechinger v. Metro. Wash. Airports Auth., 308 U.S. App. D.C. 283, 36 F.3d 97 (D.C. Cir. 1994), (holding that airport authority board of review was an agent of Congress rather than an independent entity, which exercised federal power in violation of the separation of powers). Hesse v. Rath, 249 N. Y. 436, 164 N.E. 342 (1928) (finding municipal airport projects to be “governmental” or “public” with regards to public financing issues). Houston v. FAA, 679 F.2d 1184 (5th Cir. 1982) (discussing an airport proprietor’s authority to restrict or pro- hibit particular types of aircraft operations in the interest of addressing congestion). Krenwinkle v. City of Los Angeles, 4 Cal. 2d 611, 51 P.2d 1098 (1935) (holding that airport was a public pur- pose). Lake v. Lake County, 233 Mont. 126, 759 P.2d 161 (1988) (holding that formation of airport board did not pre- clude city’s independent ability to exercise its eminent domain power for airport purposes). Lehigh v. Pittston Co., 456 A.2d 355 (Me. 1983) (finding that option agreement between city and private inves- tor for sale of airport was void as against public policy, when the city had expressly dedicated the airport for the use and benefit of the public). Ludwig v. Learjet, Inc., 830 F. Supp. 995, 998 (E.D. Mich. 1993) (holding that city was immune from liability regarding its operation of an airport because such operation constituted a governmental, rather than a proprie- tary, function). Magee v. Mallett, 178 Miss. 629, 174 So. 246 (1937) (holding that statute authorizing municipality to own and operate airports included authority to contract and pay for any engineering work necessary for airport construc- tion). McClintock v. City of Roseburg, 127 Ore. 698, 273 P. 331 (1929) (holding that airport was a public purpose).

62 McLaughlin v. City of Chattanooga, 180 Tenn. 638, 177 S.W.2d 823 (1944) (upholding municipality’s right to establish airport outside its boundaries, including within an adjoining state, but finding this authority an exer- cise of the municipality’s corporate or proprietary, rather than governmental, capacity, thereby preventing the municipality from exercising its power of eminent domain or police power, and disallowing its usual exemption from taxation). McMahon Helicopter Servs., Inc. v. United States, No. 04-74133, 2006 WL 2130625, at *8 (E.D. Mich. July 28, 2006) (discussing airport authority’s liability regarding an aircraft accident). Meisel v. Tri-State Airport Auth., 135 W. Va. 528, 64 S.E.2d 32 (1951) (finding the newly created airport au- thority a public corporation, to which the legislature properly delegated the authority to issue revenue bonds). Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, 501 U.S. 252, 111 S. Ct. 2298, 115 L. Ed. 2d 236 (1991) (holding that congressional creation of a board of review for D.C. area airports, composed of congressmen with veto power over the local airport authority’s decisions, violated the separation of powers). Mineta v. Bd. of County Comm’rs, No. 05-CV-0297-CVE-PJC, 2006 WL 2711559 (N.D. Okla. 2006) (holding that: 1) the FAA has authority to ensure that local airport authorities properly spend federal funds, and there- fore the FAA has the right to claim its proportionate share of funds from the sale of airport property if the prop- erty will no longer be used for airport purposes; 2) the FAA may intervene where the airport authority has leased and later transferred airport property without prior approval; and 3) the FAA may sue the county, as a co-signor to the airport grant agreement, for the violations of the agreement by the airport trust). Monaghan v. Armatage, 218 Minn. 108, 15 N.W.2d 241 (1944) (Minnesota Airports Commission) (holding that act creating airport authority was not invalid special legislation, and that legislative transfer of airport man- agement from municipality to airport authority did not result in a taking because the airport is public property). Monterey Peninsula Airport Dist. v. Mason, 19 Cal. 2d 446, 121 P.2d 727 (1942) (finding that creation of air- port district was not special legislation). Nat’l Helicopter Corp. v. City of N.Y., 137 F.3d 81 (2d Cir. 1998) (holding that city could impose curfew on air- port facility operations, under the proprietor exception to federal preemption of aircraft and airspace regulation, but could not impose conditions restricting certain helicopter sightseeing routes). Nolte v. Paris Air, Inc., 975 So. 2d 627 (Fla. Dist. Ct. App. 2008) (finding that municipal airport property was exempt from county taxation because lessee-fixed base operators provided goods and services to the general public, serving a municipal, governmental, or public purpose). Nicoletti v. Alagheny County Airport Auth., 841 A.2d 156 (Pa. Cmwlth. 2004) (holding the county was a neces- sary party to airport authority's condemnation action against owner of mineral interests in airport land, where county expressly and specifically retained a reversionary interest in all property leased to airport authority). Oxley v. Tulsa Airport Auth., 1989 OK 166, 794 P.2d 742 (Okla. 1989) (holding that airport authority’s plan to acquire property, as demonstrated by purchase offer and airport noise compatibility and land use study, did not rise to the level of a de facto taking). People ex rel. Greening v. Bartholf, 388 Ill. 445, 58 N.E.2d 172 (Ill. 1944) (holding that airports generally serve public, rather than private, purposes). Piroli v. City of Clearwater, 711 F.2d 1006 (11th Cir. 1983) (finding that federal law preempted the state from using its regulatory authority to compel restrictions on aircraft operations by airport proprietor). Ragsdale v. Hargraves, 198 Ark. 614, 129 S.W.2d 967 (1939) (holding that two cities could jointly finance and develop airport, and own the airport property as tenants in common). Reid v. City of Fulton, 181 Misc. 711, 47 N.Y.S.2d 185 (N.Y. Sup. 1944) (holding that city could not acquire property for a public airport and then lease the property for private purposes for a term of 10 years, that city

63 had no proprietary rights in the airport distinct from the public purpose, and that city could not appropriate airport for nonpublic use absent statutory authority). Richmond, Fredericksburg & Potomac Rail Co. v. Metro. Wash. Airports Auth., 251 Va. 201, 468 S.E.2d 90 (1996), (determining that airport authority’s actions regarding the potential acquisition of property, or land use and avigation easement over property, did not constitute a taking requiring just compensation). St. Lucie County v. Town of St. Lucie Vill., 603 So. 2d 1289 (Fla. Dist. Ct. App. 1992) (finding valid the joint participation agreements between the airport authority and the DOT, and holding that town and individuals did not have standing to enjoin county and airport authority from expanding airport). San Diego Unified Port Dist. v. Gianturco, 651 F.2d 1306 (9th Cir. 1981), (holding that federal law preempted the state from restricting aircraft operations through flight curfews in the interest of reducing noise). Schmoldt v. Okla. City, 144 Okla. 208, 291 P. 119 (1930) (determining that airport was legitimate use of pub- lic park because it served a public purpose). Sebring Airport Auth. v. McIntyre, 783 So. 2d 238 (Fla. 2001) (holding that property leased by airport author- ity to private, proprietary party was not exempt from ad valorem taxation because the lessee’s use of the prop- erty did not constitute a predominantly public purpose). Shell Oil Co. v. Bd. of Adjustment of the Twp. of Hanover, 38 N.J. 403, 185 A.2d 201 (1962) (holding that pro- posed use of portion of municipal airport property for gasoline service station was not incidental or necessary for maintenance and operation of airport, and therefore was subject to township zoning ordinances). Sing v. City of Charlotte, 213 N.C. 60, 195 S.E. 271 (1938) (finding the expenditure of funds for the operation, maintenance, and improvement of a municipally-owned airport was not a necessary expense of the city, and therefore the city could not appropriate and levy taxes for the airport without a vote by the people). Skydiving Ctr. of Greater Wash., D.C., Inc., v. St. Mary’s County Airport Comm’n, 823 F. Supp. 1273 (D. Md. 1993) (holding that county airport commission was not an executive agency covered by the state Administrative Procedures Act, volunteer commission members still had duty not to violate federal constitutional rights, and federal law preempted state law regarding whether skydiving activities were compatible with airport activity). S. Airways Co. v. De Kalb County, 102 Ga. App. 850, 118 S.E.2d 234 (1960) (holding that county owner of air- port could contract with private party for operation of airport). Spencer v. Greenwood/Leflore Airport Auth., 834 So. 2d 707 (Miss. 2003) (finding airport authority did not have the same immunity as counties and cities for the operation of an airport, by legislative design). State v. City of Coffeyville, 127 Kan. 663, 274 P. 258 (1929) (holding that, although cities had general statu- tory authority to establish and operate airports, cities could not sublet the airport to a private entity in the ab- sence of a specific statutory grant of such authority). State ex rel. Gibbs v. Gordon, 138 Fla. 312, 189 So. 437 (1939) (holding that airports serve public, rather than private, purposes). State ex rel. Hile v. City of Cleveland, 26 Ohio App. 265, 160 N.E. 241 (1927) (holding that airports serve a public purpose and therefore city could issue bonds without voter approval to finance the purchase of land for an airport, and that activity fit the definition of a public utility such that a statute allowing cities to purchase land and construct public utilities outside their boundaries applied to the acquisition and construction of the airport). State ex rel. McElroy v. Baron, 169 Ohio St. 439, 160 N.E.2d 10 (1959) (determining that legislative act pro- viding for the creation of airport authority and the building of port facilities was not an illegal delegation of leg- islative power).

64 Town of Morristown v. Twp. of Hanover, 168 N.J. Super. 292, 402 A.2d 983 (1979) (holding that airport, lo- cated in township but owned and maintained by town, was immune from township zoning regulations restrict- ing the use and operations of the airport). Tri-County Pub. Auth. v. Bd. of County Comm’rs of Morris County, 245 Kan. 301, 777 P.2d 843 (1989) (deter- mining that portions of airport property were subject to taxation because the airport authority leased the prop- erty to private entities for commercial, revenue-generating purposes). Walker Field Pub. Airport Auth. v. Adams, 606 F.2d 290 (10th Cir. 1979) (finding a delay in the reimburse- ment of federal funds to the airport authority could serve as a basis for damages under breach of contract, and the federal government could require the city and county to join as cosponsors for an airport authority pro- gram). Wayne County Bd. of Comm’rs v. Wayne County Airport Auth., 253 Mich. App. 144, 658 N.W.2d 804 (2002) (holding the transfer of airport management from the county to the newly created airport authority would not unconstitutionally impair the county’s contractual obligations to bondholders, and that act authorizing the air- port authority was not an unconstitutional exercise of legislative power). Wentz v. City of Philadelphia, 301 Pa. 261, 151 A. 883 (1930) (holding operation of airport is a public purpose). W. Air Lines v. Port Auth. of N.Y. & N.J., 817 F.2d 222 (2d. Cir. 1987) (discussing an airport proprietor’s au- thority to restrict or prohibit particular types of aircraft operations in the interest of addressing congestion). Zimomra v. Alamo Rent-a-Car, Inc., 111 F.3d 1495 (10th Cir. 1997) (holding that airport operator entitled to state action immunity for antitrust claims).